GEORGE WUERTHNER v. BUREAU OF LAND MANAGEMENT
| Decision Date | 18 June 2010 |
| Docket Number | D.C. No.2:04-CV-00019-ABJ,No. 09-8011,No. 2:04-CV-00018-ABJ,No. 09-8013,09-8013,09-8011,2:04-CV-00018-ABJ |
| Parties | BIODIVERSITY CONSERVATION ALLIANCE;GEORGE WUERTHNER, Plaintiffs - Appellants,AMERICAN LANDS ALLIANCE, Plaintiff,v.BUREAU OF LAND MANAGEMENT, an agencywithin the Department of Interior; KEN SALAZAR, in hisofficial capacity as Secretary of the United States Departmentof Interior,Defendants - Appellees,LANCE OIL & GAS COMPANY,INC.; WESTERN GAS RESOURCES,INC.;FIDELITY EXPLORATION &PRODUCTION COMPANY;WILLIAMS PRODUCTION RMT COMPANY;PENNACO ENERGY,INC.;MARATHON OIL COMPANY;STATE OF WYOMING; DEVON ENERGYCORPORATION;ANADARKO PETROLEUM COMPANY,Defendants-Intervenors-Appellees,WESTERN ORGANIZATION OF RESOURCE COUNCILS; WYOMINGOUTDOOR COUNCIL; POWER RIVER BASIN RESOURCECOUNCIL; NATURAL RESOURCES DEFENSE COUNCIL,Plaintiffs - Appellants,JEANIE ALDERSON; WALLY MCRAE,Plaintiffs,v.KATHLEEN CLARK, Bureau of Land Management Director; BUREAU OFLAND MANAGEMENT; KEN SALAZAR, United States Departmentof Interior Secretary; UNITED STATES DEPARTMENT OF INTERIOR, Defendants - Appellees,FIDELITY EXPLORATION & PRODUCTION COMPANY; MARATHON OIL COMPANY;PENNACO ENERGY, INC.; ANADARKO PETROLEUM CORPORATION; LANCE OIL &GAS COMPANY, INC.; WESTERN GAS RESOURCES, INC.; STATE OFWYOMING; DEVON ENERGY CORPORATION,Defendants-Intervenors-Appellees |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael S. Freeman of Earthjustice, Denver, Colorado, and Erik Schlenker-Goodrich of Western Environmental Law Center, Taos, New Mexico, (James Angell and Margaret Parish of Earthjustice, Denver, Colorado; Dave Bahr, Western Environmental Law Center, Eugene, Oregon, with them on the briefs), for Plaintiffs-Appellants.
Robert H. Oakley, Attorney, (John C. Cruden, Acting Assistant Attorney General, Andrew Mergen, Attorney, with him on the brief) Environment & Natural Resources Division, Washington, D.C., for the Federal Defendants-Appellees.
Charles L. Kaiser, (Charles A. Breer, with him on the brief) of Davis Graham & Stubbs LLP, Denver, Colorado, for Defendant-Intervenor-Appellee Williams Production RMT Company. John C. Martin, (Susan Mathiascheck and Amy Chasanov, with him on the brief) of Crowell & Moring LLP, Washington, D.C., for Defendants-Intervenors-Appellees Pennaco Energy, Inc., Marathon Oil Company, and Devon Energy Corporation.
Jon Metropoulos and Dana Hupp of Gough Shanahan Johnson & Waterman, Helena, Montana, for Defendant-Intervenor-Appellee Fidelity Exploration & Production Company.
Jay Jerde, Deputy Attorney General and Affie Ellis, Assistant Attorney General, Cheyenne, Wyoming, for Defendant-Intervenor-Appellee State of Wyoming.
PUBLISH
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING.
Before KELLY, O'BRIEN, and HOLMES, Circuit Judges.
In this appeal, several environmental and citizens' groups challenge a 2003 Bureau of Land Management resource management plan amendment allowing natural gas development in Wyoming's Powder River Basin. The groups argue that the Bureau violated the National Environmental Policy Act when it refused to study in detail their proposal to phase development in the Basin over decades. The district court held that the Bureau adequately considered their suggested alternative. W. Org. of Res. Councils (WORC) v. Bureau of Land Mgmt., 591 F. Supp. 2d 1206, 1228 & n.4 (D. Wyo. 2008).
We have jurisdiction under 28 U.S.C. § 1291 and affirm. The Bureau reasonably refused to give detailed study to a plan that would not meet the project's purposes.
The Federal Land Policy and Management Act requires the Bureau of Land Management to develop resource management plans. 43 U.S.C. § 1712; 43 C.F.R. § 1601.0-5(n). A resource management plan is "designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses." 43 C.F.R. § 1601.0-2.
Under the National Environmental Policy Act (NEPA), the Bureau must prepare an environmental impact statement before developing or revising resource management plans. 42 U.S.C. § 4332(2)(C). An environmental impact statementmust study in detail "alternatives to the proposed action." Id For alternatives "eliminated from detailed study," the statement must "briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a). The Bureau then must publish a record of its decision, showing how its final decision-making process incorporated the statement's findings. 23 C. F. R. § 771.127.
During the late 1990s, federal lessees proposed drilling about 23, 900 new coal bed methane gas wells in the Powder River Basin over a ten-year period. Lessees Supp. App. ("LSA") at 224, 262-63. Without new federal drilling, non-federal drilling would cause severe federal royalty losses by reducing reservoir pressure and siphoning federal gas. Id. at 12, 157-59. To consider the proposal, the Bureau agreed to prepare an environmental impact statement analyzing amending the Basin's resource management plan. See 65 Fed. Reg. 38571 (June 21, 2000); 65 Fed. Reg. 38572 (June 21, 2000).
As well as evaluating the lessees' plan, the statement would study other proposed development plans that met the Bureau's project criteria. Eligible plans first had to describe different ways for the Bureau to "provide federal minerals to meet the nation's energy needs" and to facilitate "the protection of the financial interest of the United States by preventing drainage of federal minerals" in theproject area. LSA at 263, 266, 282. Alternatives also needed to identify "mitigation measures to address issues and conditions of approval," to assess leasing in other areas, and to review the existing management plan. Id. at 266. Studying these alternatives would provide "the basis to analyze and disclose the impacts of the level of development proposed" by the lessees. Id. at 266.
At this time, the groups requested that the Bureau consider phased development as an alternative to the lessees' plan. Id. at 596-630. Phased development, as the groups defined it, clusters drilling geographically to maintain open areas. Aplt. Br. at 14-15, 27; LSA at 599, 603-04. Drilling also proceeds a "coal seam at a time." LSA at 599, 603-04. Developers reclaim each site "to a pastoral landscape" before drilling in a new site. Id. at 604. Phased development necessarily delays most drilling for "10 years to decades or longer." Id.
The groups admitted that their plan may allow other developers to drain federal minerals. Id. at 605. But they suggested that the Bureau could reduce its drainage losses through compensation agreements, protective wells, compensatory royalties, unitization, and state coordination. Id. at 605-606.
3. The Bureau Eliminates Phased Development from Study. The Bureau's final environmental impact statement studied in detail several alternative development plans, including a "no-action" alternative. Id. at 217-18, 224. But the Bureau refused to give phased development detailed study. Amongthe Bureau's six reasons for dropping the plan was that phased development would not meet the project's purposes. Id. at 342, 367. One group, the Wyoming Outdoor Council, protested this decision. Id. at 471-515.
4. The Bureau Requires Site-Specific Analyses.
The Bureau incorporated the final environmental impact statement into its 2003 Record of Decision. In itself, the new resource management plan permitted no on-the-ground activities. LSA at 385. Instead it required new site-specific NEPA analyses and approvals before any development began. Id. It also required lessees to comply with mitigation requirements. Id. at 385, 390-393.
In May 2003, the groups challenged the Bureau's actions in federal court. Aplt. App. at 92-144. The State of Wyoming and many Basin lessees intervened to defend the decision. Id. at 17-23. In 2008, the district court rejected the groups' claims. WORC, 591 F. Supp. 2d at 1228 & n.4. Among other things, it held that the Bureau adequately considered phased development. Id. The groups appeal but one issue: whether the Bureau abused its discretion when it rejected phased development as an alternative management plan. Aplt. Br. at 1-2.
As a threshold issue, the lessees contend that subsequent drilling mootedphasing development in the Basin. Lessees Br. at 23-25. They alternately argue that the groups did not preserve this claim for appellate review. Id. at 25-29.
First, a case is moot if a court cannot provide "effectual relief." Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008). The lessees have not proven mootness because undeveloped land remains in the project area and the project's ten-year time frame has not yet ended. Aplt. Reply Br. at 26-29; Lessees Br. at 24, add. 2. Even "where it is 'too late to... provide a fully satisfactory remedy' the availability of 'a partial remedy' will prevent the case from being moot." Utah Envtl. Congress v. Russell, 518 F.3d 817, 824 (10th Cir. 2008) (citation omitted).
Second, a party challenging an agency action must first exhaust any administrative remedies. See Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004). Here, the lessees argue that every group must protest the Bureau's decision administratively. Lessees Br. at 25-29; see 43 C.F.R. § 1610.5-2(a). But because one group, the Wyoming Outdoor Council, protested the Bureau's decision, it exhausted the administrative processes for all the groups. Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 (10th Cir. 2007).
Third, a litigant who does not argue an issue in the district court may not seek appellate relief. United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007). To adequately challenge...
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