Alliance v. Stiles

• Decision Date: 21 July 2011
• Docket Number: No. 10–1259.,10–1259.
• Citation: 654 F.3d 1038
• Parties: SAN JUAN CITIZENS ALLIANCE; Colorado Environmental Coalition; Colorado Wild; Oil and Gas Accountability Project; The Wilderness Society, Plaintiffs–Appellants,v.Mark STILES, in his official capacity as San Juan National Forest Supervisor and BLM Center Manager of the San Juan Public Lands Center; Rick Cables, in his official capacity as Regional Forester of the Rocky Mountain Region of the U.S. Forest Service; United States Forest Service; Thomas Vilsack, in his official capacity as Secretary of the Department of Agriculture; United States Bureau of Land Management; Ken Salazar, in his official capacity as Secretary of the Department of Interior, Defendants–Appellees,andBP America Production Company; Elm Ridge Exploration Company, LLC; Exok, Inc.; Petrox Resources, Inc.; XTO Energy Inc., Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

654 F.3d 1038

SAN JUAN CITIZENS ALLIANCE; Colorado Environmental Coalition; Colorado Wild; Oil and Gas Accountability Project; The Wilderness Society, Plaintiffs–Appellants,

v.Mark STILES, in his official capacity as San Juan National Forest Supervisor and BLM Center Manager of the San Juan Public Lands Center; Rick Cables, in his official capacity as Regional Forester of the Rocky Mountain Region of the U.S. Forest Service; United States Forest Service; Thomas Vilsack, in his official capacity as Secretary of the Department of Agriculture; United States Bureau of Land Management; Ken Salazar, in his official capacity as Secretary of the Department of Interior, Defendants–Appellees,andBP America Production Company; Elm Ridge Exploration Company, LLC; Exok, Inc.; Petrox Resources, Inc.; XTO Energy Inc., Intervenor–Defendants–Appellees.

No. 10–1259.

United States Court of Appeals, Tenth Circuit.

July 21, 2011.

Michael S. Freeman (Edward B. Zukoski and Margaret Parish, with him on the briefs), Earthjustice, Denver, CO, for Plaintiffs–Appellants.Thekla Hansen–Young, U.S. Department of Justice, Environment & Natural Resources Division, (Ignacia S. Moreno, Assistant Attorney General; Andrew C. Mergen, Robert Oakley, John S. Most, U.S. Department of Justice, Environment & Natural Resources Division; Kenneth Caps, U.S. Department of Agriculture, Office of General Counsel; and Philip Lowe, U.S. Department of the Interior, Office of Solicitor, with her on the briefs), Washington, D.C., for Defendants–Appellees.Ezekiel J. Williams, Ducker, Montgomery, Lewis & Bess, P.C., (Steven K. Imig, Ducker, Montgomery, Lewis & Bess, P.C.; Bret A. Sumner, William E. Sparks, Beatty & Wozniak, P.C., with him on the brief, and Charles L. Kaiser, Charles A. Breer, Davis Graham & Stubbs LLP), Denver, CO, for Intervenor–Defendants–Appellees.Before MURPHY, HARTZ, and O'BRIEN, Circuit Judges.HARTZ, Circuit Judge.

This appeal concerns the Northern San Juan Basin Coal Bed Methane project (the Project), which has been approved by the United States Forest Service (the Forest Service) and the Bureau of Land Management (the BLM). The Project contemplates the construction of numerous gas wells within the San Juan National Forest (the Forest) and on other federal lands. San Juan Citizens Alliance and four other environmental advocacy groups (collectively, SJCA) filed suit in the United States District Court for the District of Colorado against the Forest Service, the BLM, and four government officials (collectively, the Federal Defendants) for alleged violations of the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600–1614, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4347. The suit contends that the 2007 record of decision (ROD) approving the Project was unlawful. Several companies holding valid leases in the area and interested in drilling for gas (the Lessees) were permitted to intervene as additional defendants. The district court entered judgment in favor of the defendants.

SJCA argues on appeal that the Project violates the NFMA because it is inconsistent with provisions of the San Juan National Forest Plan (the Forest Plan) protecting old-growth ponderosa pine forests, wildlife habitat, and riparian areas, and that the ROD approved individual wells under the Project that violate the Forest Plan's standards and guidelines protecting riparian areas. It further argues that the Federal Defendants violated NEPA in two respects when they prepared an environmental impact statement (EIS) assessing the Project's environmental consequences: (1) the EIS did not adequately analyze the Project's effects on the Forest's riparian areas, offering only perfunctory references to mitigation measures without evaluating how those measures could correct Forest Plan violations; and (2) the Federal Defendants did not include several nearby national parks and wilderness areas in its cumulative-impact analysis of the Project's effects on air quality and visibility.

We have jurisdiction under 28 U.S.C. § 1291 and affirm in part and remand in part. Ripeness doctrine precludes us from addressing the merits of any of SJCA's challenges to the Project under the NFMA. A claim that the Project is inconsistent with the Forest Plan is not ripe until that inconsistency leads to the improper approval of a specific well (or associated construction). If that causal connection is present, the challenge to the well can encompass a challenge to the defective Project provision under which the well is approved. SJCA's NFMA claims fail for lack of the requisite causal connection. We dispose of them as follows: First, SJCA's claim that the Project is inconsistent with the Forest Plan's old-growth provision is not ripe because SJCA has not challenged the Federal Defendants' approval of any wells that affect the Forest's stands of old-growth ponderosa pine. Second, SJCA's contention that the Project violates certain wildlife-habitat provisions in the Forest Plan is not ripe because SJCA's appellate briefs have not argued, much less shown, any causal connection between the alleged violations and specifically challenged well approvals. Third, SJCA's opening brief on appeal appears to raise a ripe challenge to the consistency of the Project with the Forest Plan provisions protecting riparian areas when it complains of riparian damage caused by approval of specific wells and associated construction of a road. It turns out, however, that the wells and road are not within the Forest Plan's management area for riparian land, so the challenge to approval of the Project based on inconsistencies with the Forest Plan's mandates for riparian areas is likewise unripe. (The challenges to the specific well approvals are ripe, but fail on the merits.) Because SJCA's NFMA claims that the Project is inconsistent with the Forest Plan are not ripe, we remand to the district court to vacate its judgment on those claims and to dismiss them without prejudice.

As for SJCA's NEPA claims, we reject them on the merits. First, the EIS's discussion of riparian-area mitigation measures is more than adequate to satisfy NEPA. An EIS assessing environmental consequences at the programmatic stage of a multi-step development project can properly discuss mitigation measures in general terms when the specifics of possible well locations are still uncertain, leaving for later a more complete analysis of environmental consequences associated with permitting a particular well site. Second, the Federal Defendants' decision on which public lands to include in the cumulative-impact analysis of air quality was a reasonable choice involving technical and scientific matters within their areas of expertise.

I. BACKGROUNDA. Overview Of The Federal Regulatory Structure

The Forest Service, an agency within the United States Department of Agriculture, manages the National Forest System. See Utah Envtl. Congress v. Richmond, 483 F.3d 1127, 1131 (10th Cir.2007). Among the laws governing that management is the NFMA, which requires the Forest Service to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” 16 U.S.C. § 1604(a). Those plans, commonly known as forest plans, guide all natural resource management activities. See 36 C.F.R. § 219.1(a). They must provide for multiple uses of the forests, and include “coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). All resource plans and permits, contracts, and other instruments for use and occupancy of the National Forest lands must be consistent with the governing forest plan. See id. § 1604(i).

The BLM, which is in the Department of the Interior, administers oil and gas leases on federal land. See 30 U.S.C. § 226; Wyoming Outdoor Council v. Bosworth, 284 F.Supp.2d 81, 81–83 (D.D.C.2003). For land within the National Forest System, however, a lease may not be issued over the objection of the Forest Service, see 30 U.S.C. § 226(h), and the Forest Service regulates surface-disturbing activity on the leasehold, see id. § 226(g); Bosworth, 284 F.Supp.2d at 82–83.

The Forest Service and BLM are subject to NEPA, which “requires federal agencies to examine and disclose the environmental impacts of their proposed actions,” Richmond, 483 F.3d at 1133. It has twin aims:

First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.

Under NEPA, before an agency may take major Federal actions significantly affecting the quality of the human environment, [it] must prepare an environmental impact statement ... in which [it] considers the environmental impacts of the proposed action and evaluates alternatives to the proposed action, including the option of taking no action. In doing so, the agency must take a “hard look” at information relevant to its decision.

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir.2010) (citations, brackets and internal quotation marks omitted). “NEPA imposes only procedural requirements....” Richmond, 483 F.3d at 1133. It does not “mandat[e] that agencies achieve particular substantive environmental results.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Nor does it require the court “to fly speck the [EIS], but rather, to make a pragmatic judgment whether the [EIS]'s form, content and preparation foster both informed decision-making and informed public participation.” Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001) (internal quotation marks omitted).

B. The San Juan Basin and the Forest Plan

Words cannot adequately convey what makes the San Juan Basin so special. We will not...