Chihuahuan Grasslands Alliance v. Kempthorne

• Decision Date: 07 October 2008
• Docket Number: No. 07-2183.,07-2183.
• Citation: 545 F.3d 884
• Parties: CHIHUAHUAN GRASSLANDS ALLIANCE, Plaintiff, and New Mexico Wilderness Alliance; Sky Island Alliance, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, in his official capacity as the United States Secretary of Interior; Linda S.C. Rundell, in her official capacity as the New Mexico Director of the Bureau of Land Management; Bureau of Land Management, a bureau within the Department of the Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

545 F.3d 884

CHIHUAHUAN GRASSLANDS ALLIANCE, Plaintiff, and New Mexico Wilderness Alliance; Sky Island Alliance, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, in his official capacity as the United States Secretary of Interior; Linda S.C. Rundell, in her official capacity as the New Mexico Director of the Bureau of Land Management; Bureau of Land Management, a bureau within the Department of the Interior, Defendants-Appellees.

No. 07-2183.

United States Court of Appeals, Tenth Circuit.

October 7, 2008.

Ordered Published October 28, 2008.

Erik Schlenker-Goodrich of Western Environmental Law Center, Taos, NM, for Plaintiffs-Appellants.

Aaron Avila, Attorney, Environment and Natural Resources Division, Department of Justice, Washington, D.C. (Ronald J. Tenpas, Assistant Attorney General, John S. Most and John A. Bryson, Attorneys, Environment and Natural Resources Division, Department of Justice, Washington, D.C.; Arthur Arguedas, Office of the Solicitor, Department of the Interior, Santa Fe, NM, with him on the brief), for Defendants-Appellees.

Before MURPHY, BRORBY, and HARTZ, Circuit Judges.

BRORBY, Circuit Judge.

This appeal involves the United States Bureau of Land Management's (BLM's) sale of oil and gas mineral leases on public lands in a grasslands area, commonly known as the Nutt Grasslands, located in south-central New Mexico. Appellants New Mexico Wilderness Alliance and Sky Island Alliance (Appellants)¹ brought a civil suit against various federal agencies, including the BLM, and officials representing those agencies (collectively referred to as Appellees), seeking declaratory and injunctive relief pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., for alleged violations of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., and the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et seq., in conjunction with the sale of those leases. The district court issued a decision denying Appellants' request for declaratory and injunctive relief, which they now appeal and Appellees oppose. Prior to oral argument, Appellees filed a motion to dismiss the appeal as moot on grounds the BLM terminated for nonpayment the two leases at issue on appeal, leaving no case or controversy at issue and no meaningful grounds for relief. For the following reasons, we grant Appellees' motion to dismiss the appeal as moot, dismiss the appeal for lack of jurisdiction, vacate the district court's decision issued June 18, 2007, and remand with instructions to dismiss.²

I. Background

The parties have submitted briefs delineating in detail the facts and arguments supporting their positions on the grasslands ecosystem involved in their litigation, including the perceived environmental consequences of fluid mineral leases on the public lands at issue. Nevertheless, following briefing and oral argument on appeal, we have determined only the following undisputed facts are relevant to the disposition of this appeal on the issue of mootness.

On November 25, 2002, the BLM issued a Notice of Competitive Lease Sale (Lease Sale) covering multiple federal oil and gas leases for a primary term of ten years, including the two leases at issue in this appeal—200301052 and 200301055 (referenced as Lease 52 and Lease 55). Together, Leases 52 and 55 encompass 3,182.73 acres of federal public lands in the part of the Nutt Grasslands located in Luna County, New Mexico. The Nutt Grasslands are managed by the BLM through the 1993 Mimbres Resource Management Plan, which covers approximately three million surface acres of public land and 4.1 million subsurface acres in the Mimbres Resource Area. The Mimbres Resource Management Plan is based on an Environmental Impact Statement (EIS) prepared by the BLM in October 1992. In November 2002, prior to issuance of its Lease Sale notice, the BLM prepared a Documentation of Plan Conformance and NEPA Adequacy (DNA) in order to determine whether NEPA required a supplemental EIS based on any changed circumstances or new information. The DNA concluded the Lease Sale was in conformance with the 1993 Mimbres Resource Management Plan and that the 1992 Mimbres EIS satisfied the BLM's pre-lease NEPA duties.

On January 13, 2003, Appellant New Mexico Wilderness Alliance filed an administrative protest against the proposed Lease Sale, principally on grounds the BLM had violated NEPA by failing to conduct the appropriate NEPA analysis or otherwise consider a multiple use concept as part of the "hard look" it was required to take of the agency's action. As a result, it contended, the Lease Sale posed negative environmental implications to the Nutt Grasslands, including its wilderness values, and, in support, submitted documentation concerning the wilderness values of the Nutt Grasslands Wilderness Complex and the Robledo Mountains-Sierra de las Uvas Wilderness Complex. It further requested the affected lease parcels be withdrawn from the proposed Lease Sale.³ On January 22, 2003, the BLM sold the leases at issue in this appeal to Imperial Oil Properties (Imperial) of Wichita, Kansas, but did not formally issue the leases at that time. In a letter dated February 20, 2003, the BLM notified Appellant New Mexico Wilderness Alliance of receipt of its protest and stated its intent to suspend lease issuance until resolution of the protest.

Thereafter, on April 9, 2003, the BLM rejected Appellant New Mexico Wilderness Alliance's protest on grounds the 1992 EIS prepared for the 1993 Mimbres Resource Management Plan satisfied its NEPA requirements, but that it would "continue to withhold the protested parcels from lease issuance until an evaluation of the [New Mexico Wilderness Alliance's] wilderness proposals [had] been completed for those ... proposed wilderness areas in which the protested parcels lie." R., Doc. 26 at 427. On April 18, 2003, New Mexico Wilderness Alliance provided the BLM with additional documentation for the Nutt Grasslands.

On July 7, 2003, the BLM notified New Mexico Wilderness Alliance of its completed review of its proposal on the Robledo Mountains-Sierra de las Uvas Wilderness Complex and the BLM's conclusion the proposal did not provide any significant new information regarding the wilderness characteristics of the area protested.⁴ On July 11, 2003, the BLM formally issued the contested leases to Imperial.

Thereafter, on October 1, 2004, Appellants filed their Complaint, seeking declaratory and injunctive relief, commencing the instant litigation. In Count 1 of the Complaint they alleged the BLM violated NEPA by proceeding with the Lease Sale without completing an Environmental Assessment (EA) or EIS. In the remaining three counts, they alleged the BLM failed to assess the direct, indirect, and cumulative environmental consequences of the Lease Sale (Count 2); the BLM failed to consider a reasonable range of alternatives for oil and gas leasing and development in the Nutt Grasslands in conjunction with the Lease Sale (Count 3); and Appellees failed to involve the public in the Lease Sale (Count 4), all of which they claim was arbitrary, capricious, an abuse of discretion, and not in accordance with the law or procedures required by law. As a remedy, they requested declaratory and injunctive relief predicated on the Lease Sale, and asked the district court to void and enjoin the Lease Sale and the leases issued in conjunction with it.

Over the course of the resulting litigation, a number of parcels for lease were either never acquired or terminated for non-payment of rent, resulting in the parties stipulating that only four parcels of land were at issue at the time the district court issued its decision. On June 18, 2007, following the filing of multiple pleadings by the parties and oral argument, the district court issued a decision on the merits, holding in favor of the BLM and the other Appellees and denying Appellants' request for declaratory and injunctive relief. Chihuahuan Grasslands Alliance v. Norton, 507 F.Supp.2d 1216 (D.N.M. 2007).⁵ On appeal, Appellants acknowledge that only Lease 52 and Lease 55 are now in contention. They frame the issues presented on appeal as follows:

Whether BLM's sale and issuance of federal mineral leases violated ... NEPA where:

1. The leases surrendered surface use rights;

2. BLM did not prepare a lease-stage NEPA analysis addressing site specific environmental concerns or reasonably foreseeable impacts;

3. BLM instead relied upon a programmatic NEPA analysis prepared for a Resource Management Plan;

4. BLM did not consider lease-stage alternatives, in particular a no leasing alternative;

5. BLM conceded the need for site-specific NEPA analysis but asserts that such analysis can be prepared at the drilling stage; and

6. BLM rejected [Appellants'] information and proposal concerning the wilderness values of the lands in contention by looking at the wrong information and the wrong proposal.

Apt. Br. at 2 (italics added). In response, Appellees set forth their arguments in support of the district court's decision and in opposition to Appellants' appeal.

II. Motion to Dismiss

Appellees have now filed a motion to dismiss the appeal as moot because the leases in dispute, Lease 52 and Lease 55, have been terminated for nonpayment. In support, Appellees submit the Declaration of Lourdes Ortiz—a BLM land law examiner and member of the Lease Adjudication Team in New Mexico.⁶ According to Ms. Ortiz's declaration, on September 25, 2007, Minerals Management Service (MMS) electronically sent her office a spreadsheet as notification of the federal oil and gas leases it believed were terminated due to non-payment or for other reasons, which included Leases 52 and 55, referred to as NMNM 109730 and NMNM 109733. The spreadsheet showed these leases, which were issued in July 2003, were deemed terminated on August 1, 2007, for nonpayment, which Ms. Ortiz explains relates back to the...