Biodiversity Conservation v. U.S. Bureau of Land, Civ.A. 04-822(RJL).

• Decision Date: 10 November 2005
• Docket Number: No. Civ.A. 04-822(RJL).,Civ.A. 04-822(RJL).
• Citation: 404 F.Supp.2d 212
• Parties: BIODIVERSITY CONSERVATION ALLIANCE, Wyoming Wilderness Association, and the Wyoming Chapter of the Sierra Club, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, a bureau within the Department of the Interior; Gale A. Norton, in her official capacity as the Secretary of the Interior; and Ted A. Murphy, in his official capacity as the Assistant Field Manager, Lands & Minerals, Bureau of Land Management, Defendants.
• Court: U.S. District Court — District of Columbia

404 F.Supp.2d 212

BIODIVERSITY CONSERVATION ALLIANCE, Wyoming Wilderness Association, and the Wyoming Chapter of the Sierra Club, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, a bureau within the Department of the Interior; Gale A. Norton, in her official capacity as the Secretary of the Interior; and Ted A. Murphy, in his official capacity as the Assistant Field Manager, Lands & Minerals, Bureau of Land Management, Defendants.

No. Civ.A. 04-822(RJL).

United States District Court, District of Columbia.

November 10, 2005.

COPYRIGHT MATERIAL OMITTED

Matthew G. Kenna, Kenna & Hickcox, P.C., Durango, CO, Erik Schlenker-Goodrich, Western Environmental Law Center, Taos, NM, for Plaintiffs.

Gregory D. Page, US Department of Justice-Federal, Washington, DC, for Defendants.

MEMORANDUM OPINION

LEON, District Judge.

Plaintiffs, Biodiversity Conservation Alliance, Wyoming Wilderness Association, and Wyoming Chapter of the Sierra Club (collectively "Biodiversity" or "plaintiffs"), bring this action against the United States Bureau of Land Management ("BLM"), Gale A. Norton, the Secretary of the Interior, and Ted A. Murphy, the Assistant Field Manager in BLM's Rock Springs, Wyoming Field Office (collectively "BLM," "the agency," or "defendants"). Plaintiffs contend that the BLM's December 9, 2003 Decision Record and Finding of No Significant Impact ("DR/FONSI") authorizing the Hay Reservoir 3D Geophysical Project ("Hay Reservoir Project" or "Project") violates the Administrative Procedure Act's ("APA") prohibition against agency decision making that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2003). More precisely, plaintiffs argue that the BLM's approval of the Project violates the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701 et seq. and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.¹ Compl. ¶ 1. Pending before the Court are cross motions for summary judgment. Upon due consideration of the parties' submissions, the relevant law, and the entire record herein, the Court finds that the agency's action was neither arbitrary, capricious, nor an abuse of discretion. Accordingly, the defendants' motion is GRANTED and the plaintiffs' motion is DENIED.

I. BACKGROUND

A. Factual Background

The proposed action at issue in this case, the Hay Reservoir 3D Project, seeks to explore for oil and natural gas reserves in a 279 square mile tract of land in southwestern Wyoming. Environmental Assessment ("EA") at 1, Administrative Record ("AR") 32. Pursuant to the Project, potential reserves will be detected through a 3D seismic testing technique, which involves generating ground vibrations or seismic waves and recording the waves at various source points and receiver points located throughout the project area. Id. The process will yield an underground map of potential oil and natural gas reserves. Pls.' Mot. For Summ. Judg., Ex. 4 at 2.

Preparing the project area and conducting the seismic operation is a multi-step process. Id. at 4. A crew of eight to twelve surveyors must first stake and tag sixty-two "receiver lines" and sixty-one "source lines" throughout the project area using global positioning system ("GPS") technology.² Id. at 4-5. Once a sufficient number of lines are staked and tagged with receiver and source points, vibrator buggies ("vibe-buggies" or "buggies") are used to generate seismic waves. Id. at 6.

Working in pairs, the buggies proceed along source lines pursuant to a predetermined route. At each source point, the buggies lower 4.5 by 7.5 foot vibrator pads from their undercarriage. Id. The vibrator pads shake the ground and send shock waves throughout subsurface soil and rock. EA at 6, AR 32. Each vibebuggy is 12 feet 6 inches high, 35 feet 6 inches long, and 11 feet 6 inches wide; they weigh 62,000 pounds and are equipped with 43 inch wide tires with a ground pressure of 16 pounds per square inch. Id.

The project area encompasses 178,560 acres of public and private land in Sweetwater County, Wyoming.³ EA at 1, AR 32. The project area is also located within the Red Desert Watershed Management Area, an area designated to protect visual, watershed, and wildlife resources. Id. at 3. Plaintiffs argue that the seismic-testing operation will adversely affect and irreparably injure native species, habitats, ecosystems and resources contained within this area. Compl. ¶ 32.

B. Procedural Background

In December 2001, Veritas DGC Land Incorporated ("Veritas") filed a Notice of Intent ("NOI") with the BLM, an agency within the Department of the Interior, to Conduct Oil and Gas Geophysical Exploration Operations. AR 123. On April 30, 2002, BLM issued a news release soliciting public comments on the proposed Project for thirty days. AR 108. The news release indicated that the project area would encompass about 210 square miles. Id. Plaintiffs submitted two sets of comments during the scoping period. Pls.' Statement of Material Facts ("SMF") ¶¶ 9-19; Defs.' Statement of Material Facts and Issues at 11, ¶ 13.

On October 16, 2003, after the public comment period elapsed, Veritas sent a letter to the BLM requesting that the boundaries on the proposed project area be revised and expanded. AR 43. In December 2003, the BLM issued a DR/FONSI approving the proposed action pursuant to an EA also issued that month. DR/FONSI at 2, AR 32. The BLM concluded that the Project would: (1) primarily impact vegetation and visual resources in the project area; (2) displace approximately three percent of the ground surface; and (3) potentially damage or kill a percentage of brush within the vibe-buggy tire paths. EA at 30, AR 32. The BLM also expanded the project area by sixtynine square miles from that referenced in the initial news release. Id.

Thereafter, plaintiffs filed a Notice of Appeal and a Petition for Stay with the Department of Interior's Interior Board of Land Appeals ("IBLA"). Pls.' SMF ¶ 21. After the IBLA denied plaintiffs' Petition for Stay, plaintiffs filed a Notice of Dismissal of Appeal, and commenced the instant action. Id. ¶ 25. In the instant action, plaintiffs seek an order declaring the DR/FONSI and EA violative of the APA and NEPA, Compl. at 17, ¶¶ A-B, and an injunction preventing the BLM from implementing the Project, id. ¶ E.

II. STANDARDS OF REVIEW

A. Summary Judgment

Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In this case, where cross motions for summary judgment are at issue, the Court draws all reasonable inferences regarding the assertions made in a light favorable to the non-moving party. Flynn v. Dick Corp., 384 F.Supp.2d 189, 192-93 (D.D.C.2005). The Court will "grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed." Consumer Fed'n of Am. v. U.S. Dep't of Agric., 2005 WL 1773851, *2 (D.D.C. July 28, 2005).

B. Administrative Review

BLM's actions are reviewed by this Court in accordance with the judicial review provisions of the APA. When reviewing agency action under the APA, the Court must determine whether the challenged decision is "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). To make this determination, the Court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). At a minimum, the agency must have weighed the relevant data and articulated an explanation that establishes a "rational connection between the facts found and the choice made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986). In the final analysis, the BLM's actions are "entitled to a presumption of regularity." Volpe, 401 U.S. at 415-16, 91 S.Ct. 814 (noting the court cannot substitute its judgment for that of the agency).

III. ANALYSIS

NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). The statute does not mandate particular results, but instead "imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposal and actions." Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). The Council on Environmental Quality ("CEQ") is charged with administering NEPA and promulgating the regulations that become binding on all federal agencies. See 42 U.S.C. §§ 4342, 4344(3); 40 C.F.R. §§ 1501.1-1518.4.

NEPA requires federal agencies to prepare an environmental impact statement ("EIS") for "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(c) (emphasis added). An environmental assessment ("EA") is made to determine whether an EIS is required. 40 C.F.R. § 1501.4, § 1508.9. The EA is a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS]." Id. § 1508.9(a). If the agency determines that the proposed environmental impact will not be "significant," the agency must issue a "finding of no significant impact" ("FONSI"), id. § 1501.4(e), which "briefly present[s] the reasons why an action ... will not have a significant effect on the human environment," id. § 1508.13.

Although the agency has "primary responsibility for projecting...