Theodore Roosevelt Conservation P'ship v. Salazar

Citation616 F.3d 497
Decision Date23 July 2010
Docket NumberNos. 09-5162, 09-5193.,s. 09-5162, 09-5193.
PartiesTHEODORE ROOSEVELT CONSERVATION PARTNERSHIP, Appellant v. Kenneth Lee SALAZAR, in his Official Capacity as the Secretary of the United States Department of Interior, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

616 F.3d 497

THEODORE ROOSEVELT CONSERVATION PARTNERSHIP, Appellant
v.
Kenneth Lee SALAZAR, in his Official Capacity as the Secretary of the United States Department of Interior, et al., Appellees.

Nos. 09-5162, 09-5193.

United States Court of Appeals,District of Columbia Circuit.

Argued April 16, 2010.
Decided July 23, 2010.


616 F.3d 498

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616 F.3d 499

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616 F.3d 502

Appeals from the United States District Court for the District of Columbia (No. 1:07-cv-01486).

Sharon Buccino and Thomas R. Wilmoth argued the causes for appellants. With them on the briefs was Donald G. Blankenau. Benjamin H. Longstreth entered an appearance.

Robert H. Oakley, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Andrew C. Mergen and Katherine Hazard, Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Michael B. Wigmore and Sandra P. Franco were on the brief for intervenors Anadarko Petroleum Corporation and Warren Resources, Inc.

Bruce A. Salzburg, Attorney General, Attorney General's Office of State of Wyoming, Jay Jerde, Deputy Attorney General, and David J. Willms, Assistant Attorney General, were on the brief for intervenor State of Wyoming.

Before: SENTELLE, Chief Judge, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

In March 2007, the Bureau of Land Management (BLM or Bureau), an agency within the Department of the Interior, released a Record of Decision that established the Atlantic Rim Natural Gas Field Development Project (Atlantic Rim Project). The project was designed to manage the resources of more than 270,000 acres of publicly and privately owned land in south-central Wyoming. Shortly after issuing the Record of Decision, the Bureau began authorizing specific applications for permission to drill wells that accorded with the project. Theodore Roosevelt Conservation Partnership, Natural Resources Defense Council, and other environmental organizations filed for declaratory and injunctive relief in the district court, arguing the Bureau's Record of Decision, its accompanying environmental impact statement, and subsequent drilling permits violated the National Environmental Policy Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act. The district court granted summary judgment for the Bureau.

616 F.3d 503

The environmental organizations appeal from the judgment, alleging errors in both the administrative proceedings and the district court's evidentiary rulings. We affirm the district court on all issues.

I. Background
A. Legal Framework

1. National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., requires that federal agencies consider fully the environmental effects of their proposed actions. See Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 374 (D.C.Cir.1999) (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C.Cir.1991)). It is an “essentially procedural” statute, meant to ensure “a fully informed and well-considered decision, not necessarily” the best decision. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). To ensure a well-considered decision, NEPA requires that when an agency proposes a “major Federal action[ ] significantly affecting the quality of the human environment,” the agency must prepare and circulate for public review and comment an environmental impact statement (EIS) that examines the environmental impact of the proposed action and compares the action to other alternatives. 42 U.S.C. § 4332(2)(C).

An EIS must be detailed, and it must be prepared in consultation with other federal agencies with special expertise relevant to the proposed action's environmental impact. Id. It must also assess the impact the proposed project will have in conjunction with other projects in the same and surrounding areas-“cumulative impact analysis”-and must include past, present, and reasonably foreseeable future actions of any agency or person. See 40 C.F.R. § 1508.25 (requiring that an EIS address cumulative impact); 40 C.F.R. § 1508.7 (defining cumulative impact); see also TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 864 (D.C.Cir.2006) (describing what a meaningful cumulative impact analysis must identify). Finally, an EIS must explain in detail “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332(2)(C)(ii). Implicit in this statutory requirement “is an understanding that the EIS will discuss the extent to which adverse effects can be avoided.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA regulations, therefore, require an agency to discuss possible mitigation measures in the EIS and Record of Decision. 40 C.F.R. §§ 1508.25(b)(3), 1502.14(f), 1502.16(h), 1505.2(c). The discussion must include “sufficient detail to ensure that environmental consequences have been fairly evaluated.” Methow Valley, 490 U.S. at 352, 109 S.Ct. 1835. However, NEPA “does not require agencies to discuss any particular mitigation plans that they might put in place,” nor does it “require agencies-or third parties-to effect any.” Citizens Against Burlington, 938 F.2d at 206.

Not every decision requires an EIS, however. If it is unclear whether an action will “significantly affect[ ] the quality of the human environment,” 42 U.S.C. § 4332(2)(C), agencies may prepare an environmental assessment (EA). See 40 C.F.R. § 1501.4(a)-(b). An EA is a “concise public document ... that serves to ... [b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact [(FONSI)].”

616 F.3d 504

40 C.F.R. § 1508.9(a)(1). The Department of the Interior has decided that its agencies, including the Bureau of Land Management, must prepare an EA for each proposed federal action, unless it is subject to a categorical exclusion, covered by an earlier environmental document, or the relevant bureau has already decided to prepare an EIS. 43 C.F.R. § 46.300(a).

2. Federal Land Policy and Management Act

Bureau of Land Management actions are guided by the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seq. Under FLPMA, the Bureau must “manage the public lands under principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a). Multiple use management requires balancing various competing uses of land-“including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values”-to optimally manage the land. 43 U.S.C. § 1702(c). The sustained yield principle “requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (citing 43 U.S.C. § 1702(h)).

The Bureau uses a multi-step planning and decisionmaking process to fulfill this mandate under FLPMA. The Bureau begins by creating a land use plan for a geographic region. This plan is called a resource management plan (RMP). A resource management plan “describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps.” S. Utah Wilderness Alliance, 542 U.S. at 59, 124 S.Ct. 2373. It does not, however, include a decision whether to undertake or approve any specific action. 43 C.F.R. § 1601.0-5(n). Specific projects are reviewed and approved separately, but must conform to the relevant RMP. 43 C.F.R. § 1610.5-3(a).

B. Factual Background

The Bureau's field office in Rawlins, Wyoming oversees the management of public lands within a 12.5 million acre area in south-central Wyoming that straddles the Continental Divide. During the decisionmaking at issue in this case, the area was governed by a land use plan called the Great Divide Resource Management Plan. 1 Released in 1990 as part of the Bureau's FLPMA planning and decisionmaking process, the Great Divide RMP set forth long-term goals and objectives for the use and management of resources in the approximately four million acres of public land and additional one million acres of federal mineral estate that constitute the BLM-administered land within the Great Divide Resource Area. Bureau of Land Management, Rawlins District Office, Great Divide Resource Area Record of Decision and Approved Resource Management Plan 3 (November 1990) (“ Great Divide RMP ”). Under the RMP, the entire Great Divide Resource Area was open to oil and gas leasing, subject to restrictions around certain areas such as historic trails, sage grouse breeding grounds, and winter range for big game. Id. at 30, 32.

Within the Great Divide Resource Area sits the Atlantic Rim Project Area, which encompasses over 270,000 acres of publicly and privately owned land in Carbon County, Wyoming.

616 F.3d 505

Theodore Roosevelt Conservation P'ship v. Salazar, 605 F.Supp.2d 263, 270 (D.D.C.2009) (“ TRCP ”). The area contains valuable oil and natural gas deposits, provides habitat to many species of wildlife, supplies grazing land for local ranchers' herds, and supports various human endeavors such as big game hunting and wildlife observation. Already the project area hosts a number of oil and gas wells, which account for more than five percent of Wyoming's total natural gas production. Id.

In 2001, the Bureau began the review and approval process for the Atlantic Rim Natural Gas Field Development Project (Atlantic Rim Project). See Bureau of Land Management, Final Environmental Impact Statement for the Atlantic Rim Natural Gas Field...

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