Diné Citizens Against Ruining Our Env't v. Jewell
| Decision Date | 14 August 2015 |
| Docket Number | No. CIV 15-0209 JB/SCY,CIV 15-0209 JB/SCY |
| 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, Intervener-Defendants. |
THIS MATTER comes before the Court on: (i) the Plaintiffs' Motion for Preliminary Injunction, filed May 11, 2015 (Doc. 16)("Motion"); (ii) the Unopposed Motion to Intervene of the American Petroleum Institute, filed May 20, 2015 (Doc. 23)("API's Motion to Intervene"); and (iii) the Motion of Applicant-Intervener American Petroleum Institute for Leave to FileOpposition to Plaintiffs' Motion for Preliminary Injunction, filed May 26, 2015 (Doc. 38)("API Response Request"). The Court held a hearing on July 13, 2015. The primary issues are: (i) whether the Plaintiffs' requested preliminary injunction -- which seeks to nullify the most recent 265 approvals of applications for permit to drill ("APDs") in the Mancos Shale formation of the San Juan Basin of northern New Mexico, and enjoin Defendant Bureau of Land Management ("BLM") from issuing additional approvals until it conducts a new environmental impact study ("EIS") -- falls within one of the three disfavored categories of such injunctions; (ii) whether the Plaintiffs have a substantial likelihood of succeeding on the merits of their claim that the BLM violated the National Environment Protection Act, 42 U.S.C. §§ 4321-4370h ("NEPA"), by basing its approvals of the APDs on an EIS conducted before the popularization of modern directional-drilling technology, rather than conducting a new EIS; (iii) whether the Plaintiffs would suffer irreparable harm between now and a full trial on the merits if the Court were to not issue the requested preliminary injunction; (iv) whether the injury that the Plaintiffs would sustain in the absence of the requested preliminary injunction outweighs the injury that the issuance of the requested preliminary injunction would cause the Defendants; and (v) whether issuing the requested preliminary injunction would be adverse to the public interest. As to the first issue, the Court concludes that the requested preliminary injunction does not fall into any of the three disfavored categories: it would be a prohibitory injunction, rather than a mandatory one; it would preserve, rather than change, the status quo; and it would not shortcut the trial process by providing the Plaintiffs with all the relief they could hope to obtain from a full trial on the merits. As to the second issue, the Court concludes that the Plaintiffs have not put forth evidence indicating that they will have a substantial likelihood of success on the merits at trial. The substantial-likelihood-of-success standard is a necessarily speculative one, which does notrequire the Plaintiffs to carry their full burden of proof at the preliminary-injunction stage. Still, the final burden that the Plaintiffs will face in this case is much higher than in an ordinary trial -- the Court is required to grant considerable deference to federal agencies' factfinding, to their statutory and regulatory interpretations, and to their exercises of discretion -- and the Court must evaluate the Plaintiffs' showing at the preliminary-injunction phase in light of their ultimate burden at the merits phase. The Plaintiffs have put forth enough evidence to cast some doubt on the thoroughness of the BLM's decisionmaking, but they have not made the necessary showing that the BLM failed to take a hard look at the environmental impacts of its actions, or that its decisionmaking was arbitrary and capricious. As to the third issue, the Court concludes that the harms that the requested injunction seeks to prevent would be irreparable. Environmental harms are often irreparable, and the particular environmental injury in this case -- that associated with fracking -- is irreversible once a well is fracked. As to the fourth issue, the Court concludes that the balance of harms weighs in the Defendants' -- and in particular the Intervener-Defendants' -- favor. If the Court were to issue the requested preliminary injunction, and the Plaintiffs were to lose the case on the merits, then the Defendants would almost certainly lose whatever income their BLM-approved wells would have produced in between the issuance of the preliminary injunction and the resolution of the case. The Plaintiffs, on the other hand, will sustain only the enhanced possibility of an injury, rather than an injury certain, if the Court denies the Motion. The potential injuries that the Plaintiffs fear include a number of environmental catastrophes which would indeed impose grave tolls on the Plaintiffs -- and on society, for that matter -- if any of them were to materialize. To assess the injury value of such risks, however, the Court must multiply the costs of each potential calamity with its corresponding likelihood of transpiring before this case can be resolved on the merits. The Plaintiffs have presented insufficientevidence to conduct such a calculation, and thus have failed to satisfy the balance-of-harms prong of the preliminary-injunction analysis. Furthermore, the Plaintiffs are unable to post a money bond sufficient to protect the Defendants' interests. Although not necessary in all cases, in this case, a money bond would have sufficed to swing the balance-of-harms prong in the Plaintiffs' favor. As to the fifth issue, the Court concludes that a preliminary injunction would be adverse to the public interest. The public would gain more from reaping the gains -- an influx of jobs and capital, and an increase in royalties paid to the state and federal governments -- from opening up the Mancos Shale formation to economically viable drilling now, rather than waiting until the resolution of this case. The Plaintiffs have failed to demonstrate with the requisite specificity a countervailing environmental interest that outweighs the public's strong economic interest. Because failure on any of the four prongs -- let alone on three out of four of them -- necessitates denial of a preliminary injunction, the Court will deny the Motion. Last, as for the API's Motion to Intervene and the API Response Request, the Court will grant both motions and allow Intervener-Defendant American Petroleum Institute ("API") to participate fully as a party in this case.
Pursuant to rule 52(a)(2) of the Federal Rules of Civil Procedure, the Court will make formal findings of fact and conclusions of law to support its disposition of the Motion. See Fed. R. Civ. P. 52(a)(2), 65(d)(1). The Court's ultimate review of this case will be limited to the administrative record, but, as the Court still does not have the administrative record and all parties attach documents outside of it, the Court will not limit its consideration of the Motion to the administrative record, but, rather, will use whatever sources available to it. See Village of Los Ranchos de Albuquerque v. Marsh, 947 F.2d 955, 1089-90 & nn.2-3 (10th Cir. 1991). TheCourt divides its findings of fact into four sections: first, the Court will first introduce the parties; second, it will outline the timeline of events in this case; third, the Court will make findings about the differences between drilling technology as it existed in the early 2000s -- when much of the environmental evaluation and approval process for the drilling that the Plaintiffs now challenge took place -- and as it exists now; fourth, and finally, the Court will summarize some of the requested injunction's economic effects.
1. Plaintiff Diné Citizens Against Ruining Our Environment ("Diné CARE") is an organization of Navajo community activists in the Four Corners region of Arizona, New Mexico, and Utah; the group derives its name from the Diné Fundamental Laws.1 See Supplemental and Amended Petition for Review of Agency Action ¶ 19, at 6, filed May 21, 2015 (Doc. 32) ("Petition").
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 assure conservation and stewardship of the environment through civic involvement, engagement and oversight in decisionmaking processes relating to tribal development, and oversight of government agencies' compliance with all applicable environmental laws." Petition ¶ 19, at 6-7.
3. Diné CARE brings this action on its own behalf and on behalf of its adversely affected members. See Petition ¶ 19, at 7. 4. Plaintiff San Juan Citizens Alliance ("San Juan Alliance") is an organization dedicated to "social, economic, and environmental justice in the San Juan Basin" -- a petroleum-rich geologic structural basin in the Four Corners region and which, although sparsely populated, is home to many Navajo. Petition ¶ 20, at 7. See Boundary Descriptions and Names of Regions, Subregions, Accounting Units and Cataloging Units, United States Geological Survey, http://water.usgs.gov/GIS/huc_name.html.
5. San Juan Alliance members live in, use, and enjoy the areas and landscapes that the oil and gas development that the BLM is authorizing would affect, and the San Juan Alliance brings this action on its own behalf and on behalf of its adversely affected members. See Petition ¶ 20, at 7.
6. Plaintiff WildEarth Guardians is a non-profit membership organization based in Santa Fe, New Mexico,...
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