Mont. Wildlife Fed'n v. Bernhardt
| Decision Date | 22 May 2020 |
| Docket Number | CV-18-69-GF-BMM |
| Parties | MONTANA WILDLIFE FEDERATION, et al., Plaintiffs, v. DAVID BERNHARDT, in his official capacity as Secretary of the Interior, et al., Defendants, WESTERN ENERGY ALLIANCE, et al., Defendant-Intervenors. |
| Court | U.S. District Court — District of Montana |
The Bureau of Land Management ("BLM") issued a number of amended resource management plans as part of an effort to save the sage-grouse from endangered species designation. These plans adopted a number of measures to save the sage-grouse. One of those measures states that "[p]riority will be given to leasing and development of fluid minerals outside of [sage-grouse habitat]." The central question between the parties is what it means to give something priority.
Courts review compliance challenges for the National Environmental Policy Act ("NEPA") and the Federal Land Policy and Management Act ("FLPMA") under the Administrative Procedure Act ("APA"). Under the APA, courts "shall hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). An action proves arbitrary and capricious "if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Court exercises "highly deferential" review and presumes agency action to be valid. Pac. Coast Fed'n of Fishermen's Ass'ns v. Blank, 693 F.3d 1084, 1091 (9th Cir. 2012) (quoting Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007)). The APA standard is "narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle, 463 U.S. at 43.
NEPA represents the country's "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). NEPA generally requires that federalagencies consider the environmental consequences of their actions. See 40 C.F.R. § 1501.1. NEPA requires agency decisionmakers to identify and understand the environmental effects of proposed actions and to inform the public of those effects so that it may "play a role in both the decisionmaking process and the implementation of [the agency's] decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); see also 42 U.S.C. § 4321; 40 C.F.R. § 1501.1. In other words, NEPA "insure[s] a fully informed and well-considered decision.'" Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978).
BLM retains discretion to make lands "which are known or believed to contain oil or gas deposits" available for leasing under the Mineral Leasing Act. 30 U.S.C. § 226(a). They may only make these lands available, however, in conjunction with BLM's duties under the FLPMA, which dictates the framework under which BLM manages public lands. FLPMA requires that "the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values." 43 U.S.C. § 1701(a)(8). FLPMA further states that the policy of the United States requires that BLM "receive fair market value of the use of the public lands and their resources." 43 U.S.C. § 1701(a)(9).
BLM accomplishes this directive by developing, maintaining, and revising Resource Management Plans ("RMPs"). 43 U.S.C. § 1712(a)-(b); 43 C.F.R. § 1601.0-5(n). RMPs "guide and control future management actions." 43 C.F.R. § 1601.0-2. RMPs establish "[l]and areas for limited, restricted or exclusive use" and determine "[a]llowable resource uses (either singly or in combination) and related levels of production or use to be maintained." 43 C.F.R. § 1601.0-5(n)(1)-(2). Before federal coal, oil, or gas resources may be developed, however, BLM must follow additional procedures.
BLM allows entities to develop oil and gas resources through a competitive leasing process. This process generally looks as follows. A party submits an expression of interest ("EOI") to nominate a parcel of land for inclusion in a competitive lease sale. Once BLM has received an EOI, that parcel of land generally gets included in the lease sale. That said, BLM may withdraw parcels "for cause." 43 C.F.R. § 3120.3-4; see 43 C.F.R. § 3120.3-1. BLM may withhold or defer these parcels for various reasons, including environmental concerns. See BLM-MT-BU-000001. BLM must post a notice of future competitive lease sales, at which time other entities may file protests to all or part of the lease sale. See id. §§ 3120.4-2, 3120.1-3. BLM then conducts the lease sale. See id. § 3120.5. The entity that receives the lease must then submit an Application for Permit to Drill("APD") at least thirty days before commencement of operations. See id. § 3162.3-1(c)-(d).
BLM undertook a large multi-state planning effort to protect the sage-grouse and its habitat in response to concerns that sage-grouse may need to be listed as an endangered species under the ESA. Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List Greater Sage-Grouse (Centrocercus urophasianus) as an Endangered or Threatened Species, 80 Fed. Reg. 59,858, 59,874 (Oct. 2, 2015). BLM revised or amended 98 land management plans ("2015 Plans") to adopt sage-grouse protections across the bird's range in ten Western states. Id.
The 2015 Plans assign areas of sage-grouse habitat for varying levels of protection. The plans designate priority habitat management areas ("PHMAs"), which are "[a]reas with limited impacts containing substantial and high quality [sage-grouse] habitat that support sustainable [sage-grouse] populations." See, e.g., BLM_MT_BI-000758 (Billings Field Office plan). These PHMAs generally are considered the lands with the highest value and "essential habitat for maintaining [sage-grouse]" populations. See, e.g., BLM-MT-MC-000183 (Miles City Field Office plan). The plans also designate general habitat management areas ("GHMAs"), which are "lands where some special management will apply tosustain [sage-grouse] populations." BLM-MT-MC-000175. GHMAs include, for example, "occupied seasonal or year-round habitat outside of PHMAs." WY066635.
BLM took an approach that directed BLM field offices to prioritize leasing outside sage-grouse habitat to avoid closing all public land to oil and gas leasing. The Wyoming RMPA and Montana ARMPs all contain the same language with respect to prioritization:
Priority will be given to leasing and development of fluid minerals outside of [priority and general habitat]. When analyzing leasing and authorizing development of fluid mineral resources in PHMA and GHMA, and subject to applicable stipulations for the conservation of [sage-grouse], priority will be given to development in nonhabitat areas first and then in the least suitable habitat for [sage-grouse].
See WY066649 (Wyoming RMPA); BLM-MT-MC-000182 (Miles City ARMP), BLM-MT-BI-000596 (Billings ARMP), BLM-MT-HL-000380 (HiLine ARMP).
BLM's Record of Decision ("ROD") for these plans explained that this prioritization aimed "to further limit future surface disturbance and encourage new development in areas that would not conflict with [sage-grouse]." BLM-MT-BI-000437. Further, the prioritization "intended to guide development to lower conflict areas and as such protect important habitat." Id. The 2015 Plans also stated that BLM would provide "additional guidance" to "clarify how the BLM willimplement the objective of prioritizing future oil and gas leasing and development outside of [sage-grouse] habitat." BLM-MT-BI-000452.
BLM "satisfie[d] the BLM's commitment in the [sage-grouse] ROD's to provide policy direction" when it issued Instruction Memorandum 2016-143 ("2016 IM"). BLM-IM026-000759. The "Introduction" states that the 2016 IM sought "to ensure consistency across BLM offices when implementing the [2015 Plans] decisions aimed at avoiding or limiting new surface disturbance in . . . PHMAs . . . , and minimizing surface disturbance in . . . GHMAs." BLM-IM026-00749. The 2016 IM also sought "to provide clarity . . . on how to move forward with oil and gas leasing development activities within designated [sage-grouse] habitats." Id. The 2016 IM did "not prohibit leasing or development" in sage-grouse habitat. BLM-IM026-00750. Similarly, the 2016 IM does not require BLM to offer "all lands outside [sage-grouse] habitat areas to be leased or developed before allowing leasing within GHMAs." Id. The 2016 IM then outlined how BLM should implement the 2015 Plans's priority requirement.
The 2016 IM took a broad approach to prioritization. The 2016 IM contains two sections—one for leasing and one for development—because the 2015 Plans require prioritization at both the "leasing and development" stages. See, e.g., WY066649. The 2016 IM addresses how BLM should address prioritization at theleasing stage first. The 2016 IM breaks down leasing stage prioritization into six broad sections that each contain different actions that would ensure BLM would "achieve the conservation objectives" in the 2015 Plans. BLM-IM026-000750. The first section contains the "Prioritization Sequence for Leasing in or near [sage-grouse] Habitats." BLM-IM026-000751. This section provided that BLM "will use the following prioritization sequence for considering leasing in or near" sage-grouse habitat. Id. That sequence made lands outside of GHMAs and PHMAs "the first priority for leasing in any given lease sale," followed by "lands within the GHMAs," followed by ...
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