Diné Citizens Against Ruining Our Env't v. Jewell
| Decision Date | 23 April 2018 |
| Docket Number | No. CIV 15–0209 JB/SCY,CIV 15–0209 JB/SCY |
| Citation | 312 F.Supp.3d 1031 |
| Court | U.S. District Court — District of New Mexico |
| Parties | DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; San Juan Citizens Alliance; WildEarth Guardians; and Natural Resources Defense Council, Plaintiffs, v. Sally JEWELL, in her official capacity as Secretary of the United States Department of the Interior; United States Bureau of Land Management, an agency within the United States Department of the Interior; and Neil Kornze, in his official capacity as Director of the United States Bureau of Land Management, Defendants, and WPX Energy Production, LLC; Encana Oil & Gas (USA) Inc.; BP America Company; ConocoPhillips Company; Burlington Resources Oil & Gas Company LP; American Petroleum Institute; and Anschutz Exploration Corporation, Intervenor–Defendants. |
Kyle Tisdel, Western Environmental Law Center, Taos, New Mexico and Samantha Ruscavage–Barz, WildEarth Guardians, Santa Fe, New Mexico, Attorneys for the Plaintiffs
Jeffrey H. Wood, Acting Assistant Attorney General, Justin Alan Torres, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. and Clare Marie Boronow, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, Denver, Colorado, Attorneys for the Defendants
Hadassah M. Reimer, Holland & Hart LLP, Jackson, Wyoming and Bradford C. Berge, Holland & Hart LLP, Santa Fe, New Mexico and John Fredrick Shepherd, Holland & Hart LLP, Denver, Colorado, Attorneys for Intervener–Defendants, WPX Energy Production, LLC; Encana Oil & Gas (USA) Inc.; BP America Production Company; ConocoPhillips Company; Burlington Resources Oil & Gas Company LP; and Anschutz Exploration Corporation
Michael R. Comeau, Jon J. Indall, Joseph E. Manges Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, New Mexico and Steven Rosenbaum, Bradley Ervin, Covington & Burling, LLP, Washington, D.C. and Andrew Schau, Covington & Burling, LLP, New York City, New York, Attorneys for Intervenor–Defendant, American Petroleum Institute
THIS MATTER comes before the Court on the Plaintiffs' Opening Merits Brief, filed April 28, 2017 (Doc. 112)("Diné Brief"). The primary issues are: (i) whether the Plaintiffs have standing to pursue their claims under the National Environmental Policy Act, 42 U.S.C. §§ 4321 to 4370m–12 ("NEPA") and the National Historic Preservation Act, 16 U.S.C. §§ 470 to 470x–6 ("NHPA"); (ii) whether the Plaintiffs are challenging final agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704 ("APA"); (iii) whether any of the Plaintiffs' challenges to various Applications for Permit to Drill ("APDs") are moot; (iv) whether Defendant United States Bureau of Land Management ("BLM") violated NEPA by failing to adequately consider the environmental impacts of hydraulic fracturing and horizontal drilling in developing the Mancos Shale in the San Juan Basin; (v) whether the BLM adequately involved the public in its NEPA process; (vi) whether the BLM violated the NHPA for failing to consider the indirect effects that well pads would have on Chaco Culture National Historic Park, Chacoan Outliers, the Chaco Culture Archaeological Protection Sites, and the Great North Road (collectively "Chaco Park and its satellites"); and (vii) if there is a NEPA or NHPA violation, whether the proper remedy is remand without vacatur, remand with vacatur, or a permanent injunction. The Court concludes that: (i) the Plaintiffs have standing to pursue their NEPA and NHPA claims; (ii) the Plaintiffs may challenge most, but not all, of the APDs under the APA; (iii) the Plaintiffs' APD challenges are not moot, except as to permanently abandoned wells; (iv) the BLM complied with NEPA's requirements; (v) the BLM adequately involved the public in its NEPA process, as it gave notice of finalized Environmental Assessments' ("EAs") availability through its online NEPA logs, and sent notices of and hosted public meetings at each proposed well's site; (vi) the BLM did not violate the NHPA, because it considered the effects on historical sites within the wells' areas of potential effects; and (vii) if the BLM had violated NEPA or the NHPA, vacatur with remand would be the proper remedy for the NEPA violation, but remand without vacatur would be the proper remedy for the NHPA violation. Accordingly, the Court denies the requests in the Diné Brief.
The Court divides its factual background into five sections. First, the Court will introduce the parties. Second, it will discuss oil-and-gas development in the San Juan Basin—a petroleum-rich geologic structural basin in the Four Corners region of the States of New Mexico and Colorado, which, although sparsely populated, is home to many Navajo Native Americans, also known as the Diné. See Diné Citizens Against Ruining Our Environment v. Jewell, No. CIV 15-0209, 2015 WL 4997207, at *2 (D.N.M. 2015) (Browning, J.)(" Dine"). Third, it will explain the BLM's oil-and-gas planning and management framework. Fourth, it will outline the
timeline of events giving rise to this case. Finally, it will discuss the BLM's relationship with the NHPA.
Plaintiff Diné Citizens Against Ruining Our Environment ("Diné CARE") is an organization of Navajo community activists in the Four Corners region. See Dine, 2015 WL 4997207, at *2. Diné CARE's stated goal is to protect all life in its ancestral homeland by empowering local and traditional people to organize, speak out, and ensure conservation and stewardship of the environment through civic involvement. See Dine, 2015 WL 4997207, at *2. Plaintiff San Juan Citizens Alliance ("San Juan Alliance") is an organization dedicated to social, economic, and environmental justice in the San Juan Basin. See Dine, 2015 WL 4997207, at *2. Plaintiff WildEarth Guardians is a non-profit membership organization with over 65,000 members and activists and is based in Santa Fe, New Mexico, with offices throughout the western United States of America. See Dine, 2015 WL 4997207, at *3. Plaintiff Natural Resources Defense Council is a nonprofit environmental membership organization with more than 299,000 members throughout the United States, approximately 3,360 of whom reside in New Mexico. See Dine, 2015 WL 4997207, at *3.
Mike Eisenfeld is a member of San Juan Alliance and WildEarth Guardians. See Declaration of Mike Eisenfeld ¶ 1, at 1 (executed April 25, 2017), filed April 28, 2017 (Doc. 112–1)("Eisenfeld Decl."). He has visited Chaco Park—a historic site in the San Juan Basin—at least annually since 1997. See Eisenfeld Decl. ¶ 5, at 2. He last visited there in July, 2016. See Eisenfeld Decl. ¶ 5, at 2. He also regularly visits "the greater Chaco region, including areas in and around Counselor, Lybrook, and Nageezi," New Mexico.2 Eisenfeld Decl. ¶ 5, at 2. He last visited the "Nageezi area" on April 20, 2017, and intends to return in May and June of 2017. Eisenfeld Decl. ¶ 5, at 2. He contends that the BLM has approved various APDs after conducting EAs that were not available for the public, including himself, to review. See Eisenfeld Decl. ¶ 9, at 4–5. Specifically, Eisenfeld checked the BLM's website and visited its public reading room throughout 2014, and on October 2, 2014, "no NEPA documentation was available to the public." Eisenfeld Decl. ¶ 11, at 6.
According to Eisenfeld, the BLM's approval of these APDs "threatens to irreparably harm [his] personal and professional interest in an intact Chacoan landscape ... by impacting important environmental (air, water, treasured landscapes), historical, and cultural resources." Eisenfeld Decl. ¶ 9, at 5 (alteration added). Eisenfeld states that he has visited hundreds of well sites in the "greater Chaco area" and has "frequented lands where many other Mancos Shale[3 ] wells are in view." Eisenfeld Decl. ¶ 12, at 6. Eisenfeld alleges that the
BLM has allowed "APD proponents to flare natural gas in the greater Chaco area when drilling for oil." Eisenfeld Decl. ¶ 13, at 6. According to Eisenfeld, this flaring harms the air quality and his health, and "compromises the night sky" in the Chaco Park area. Eisenfeld Decl. ¶ 13, at 6–7. Eisenfeld states that the APD approvals have also "compromised noted archeological sites." Eisenfeld Decl. ¶ 13, at 7. Eisenfeld states that he is "harmed by the lack of government agency compliance in evaluating the direct, indirect, cumulative and connected impacts of operations approved by BLM." Eisenfeld Decl. ¶ 16, at 8.
In 2010–2012, Eisenfeld visited some Mancos Shale wells amongst the communities of Counselor, Lybrook, and Nageezi. See Supplemental Declaration of Mike Eisenfeld ¶ 3, at 2 (executed July 26, 2017), filed July 28, 2017 (Doc. 117–3)("Eisenfeld Supp. Decl."). He visited "over 150 WPX [and] Encana[4 ]... wells being drilled and developed in the Mancos Shale." Eisenfeld Supp. Decl. ¶ 3, at 2 (alteration added). Specifically, he has visited well sites called "Encana Lybrook, Gallo Canyon Unit and Escrito wells, and WPX Chaco unit wells." Eisenfeld Supp. Decl. ¶ 3, at 2. At these well sites, Eisenfeld has seen "drilling, flaring, hydraulic fracturing, nitrogen treatment, fracking trucks, chemical storage and an endless stream of activity." Eisenfeld Supp. Decl. ¶ 4, at 2. Eisenfeld states that "the flaring of natural gas from the Mancos Shale oil wells have been visually apparent ... [,] representing waste, pollution and lost revenue/royalties." Eisenfeld Supp. Decl. ¶ 6, at 3. Eisenfeld states that the resulting fumes, reckless truck travel, and even exploding wells have made him feel unsafe when traveling in the Mancos Shale area. See Eisenfeld Supp. Decl. ¶ 7, at 4. Eisenfeld notes that an explosion occurred on a well pad in...
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