Montana Wilderness Ass'n v. Fry
| Decision Date | 31 March 2004 |
| Docket Number | No. CV 00-39-GF-DWM.,CV 00-39-GF-DWM. |
| Citation | 310 F.Supp.2d 1127 |
| Court | U.S. District Court — District of Montana |
| Parties | MONTANA WILDERNESS ASSOCIATION a non-profit corporation, and, Curley Youpee, an enrolled member of the Fort Peck Tribes, individually, Plaintiff, v. Tom FRY, Acting Director, U.S. Bureau of Land Management; Mat Millenbach, Director, Montana-Dakotas State Office, U.S. Bureau, of Land Management; Jamie Rappaport Clark, Director, U.S. Fish & Wildlife Service; U.S. Bureau of Land Management; U.S. Fish & Wildlife Service; and Macum Energy, Inc., a Montana corporation, Defendants. |
Cathy J. Lewis, Ugrin Alexander Zadick & Higgins, Great Falls, MT, for plaintiff.
George F. Darragh, Jr., Office of the U.S. Attorney, Great Falls, MT, Alan L. Joscelyn, Gough Shanahan Johnson & Waterman, Helena, MT, William P. Pendley, Michael P. Adams, D. Andrew Wight, Mountain States Legal Foundation, Lakewood, CO, Gary G. Broeder, Broeder Law Office, Billings, MT, for defendants.
This case arises from Defendant Bureau of Land Management's sale of three oil and gas leases to Defendant Macum Energy, Inc. on September 28, 1999, and from BLM's decision granting an unrelated pipeline right-of-way to Macum Energy on November 4, 1999. The leases and pipeline are in Blaine County, north central Montana, in an area of the Upper Missouri Breaks commonly known as the Bullwacker, named after a creek running through the area. The Bullwacker area is 30 miles south of Zortman, Montana, and 50 miles south of Chinook, Montana. Missouri Breaks Wilderness Inventory, Roadless Area Description and Recommendations, Plaintiffs' Reply Brief, Tab C, at 3-11. It is comprised of 27,382 federal acres and 640 state acres. Id. It is bounded by Cow Creek Road to the north, private land to the south, and Gist Branch Road to the east and south. Id.
In designating this area part of a National Monument in 2001, President Clinton stated:
The Bullwacker area of the monument contains some of the wildest country on all the Great Plains, as well as important wildlife habitat. During the stress-inducing winter months, mule deer and elk move up to the area from the river, and antelope and sage grouse move down to the area from the benchlands. The heads of the coulees and breaks also contain archaeological and historical sites, from teepee rings and remnants of historic trails to abandoned homesteads and lookout sites used by Meriwether Lewis.
Plaintiffs contend BLM violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (2000), the Endangered Species Act of 1973(ESA), 16 U.S.C. §§ 1531-1544 (2000), the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. §§ 470-470x (2000), the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seq., and the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. § 1271 et seq. Plaintiffs filed suit in March 2000, five months after the lease sale and three months after the right-of-way was granted. They did not file any administrative claims prior to filing this suit.
All parties moved for summary judgment. Oral argument was held October 22, 2003. In my view, the plaintiffs are correct. The law was not followed as the Congress requires and the President intended.
The substantive statutes under which the parties have moved for summary judgment do not provide an independent basis for review. The action is therefore governed by the Administrative Procedure Act (APA), which permits judicial review of final agency action. 5 U.S.C. § 706. Judicial review under the APA is limited to the question of whether the BLM acted arbitrarily, capriciously, or otherwise not in accordance with the law. 5 U.S.C. § 706.
In making its determination, the Court must consider whether the agency's decisions were based on a consideration of the relevant factors and determine whether the agency made "a clear error of judgment." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Court's review is limited to the information that was before the agency at the time it made its decision. Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986).
On September 28, 1999, BLM sold three oil-and-gas leases to Macum Energy in a competitive sale at the Montana BLM office in Billings, Montana. Administrative Record (A.R.), Exhibit A. The leases are denominated MTM-89473, A.R. Exh. A, Tab 9-a; MTM-89474, A.R. Exh. A, Tab 10-a; and MTM-89482. A.R. Exh. A, Tab 11-a. The BLM identified the parcels earlier in the year, and determined through use of its Documentation of Land Use Plan Conformance and NEPA Adequacy (DNA) worksheets that leasing of each parcel complied with NEPA. A.R. Exh. A, Tabs 9-d, 10-d, 11-d. Specifically, the BLM determined that leasing complied with the 1988 West HiLine Resource Management Plan Environmental Impact Statement (RMP/EIS).
Parts of the leases are located on land that was designated the Upper Missouri River Breaks National Monument ("National Monument") in January 2001. Then-Secretary of the Interior Bruce Babbitt announced plans to place restrictions on this area in May 1999 pending special designation of the legal status of the land. Govt. Brief at 9. In July 1999, in response to local opposition, Secretary Babbitt announced he would not place new restrictions on the area pending special designation. Id. The lease sales took place three months later. Id.
Although the proclamation establishing the National Monument prohibits further oil and gas leasing, it protects valid existing oil and gas lease rights. Plaintiffs' Facts, Tab E, at 7 ().
The Upper Missouri National Wild and Scenic River Corridor is closed to mineral leasing, as are Wilderness Study Areas including Cow Creek, Ervin Ridge, Woodhawk, Stafford and Dog Creek. Govt. Brief at 8. Neither the leases nor the pipeline are within any of these areas. Id.
BLM placed notices of the lease sales at various of its Montana offices and on its website. A.R. Exh. A, Tab 1, 2, 4. However, because BLM determined that its obligations under NEPA regarding the lease sales were met through the West HiLine RMP/EIS, it did not prepare an EA or issue a Finding of No Significant Impact (FONSI). Nor did it mail notices to interested parties, or publish notice in any publications or newsletters.
On September 9, 1999, Macum applied for a pipeline right-of-way in the Bullwacker to serve production from existing wells. A.R. Exh. H, Tab 1. This right-of-way is unrelated to the leases granted on September 28, 1999.
In response, the agency prepared an EA, and issued a Finding of No Significant Impact (FONSI) and Record of Decision (ROD) on October 27, 1999. It did not circulate the EA or the FONSI, nor did it publish notices of the EA, FONSI, or the right-of-way grant.
BLM also contracted with a consultant who prepared a Cultural Resources Inventory of the right-of-way area. Exh. H, Tab 5. The consultant inspected the area on November 1, 1999. Exh. H, Tab 5, at 5. He sent his report to the BLM on November 5, 1999. Exh. H, Tab 5. The consultant reported a stone ring, which he posited is a former Native American tipi site from an indeterminate age, 54 feet from the right-of-way. Id. at 3. The consultant determined that the site would not be affected by the pipeline. Id. at 5.
An addendum to the report was prepared on December 8, 1999. Exh. H, Tab 7. It addressed 17 additional acres, and reported no archaeological sites. Id. at 3.
The BLM granted the right-of-way to Macum on November 4, 1999 — one day before it received the report from its archaeological consultant. Exh. H, Tab 6. Pipeline construction took place that winter; the pipeline is currently used to transport natural gas.
As evidence of its compliance with NEPA and ESA in its decisions to sell the three leases, BLM relies upon the 1981 Lewistown District Oil and Gas Leasing Environmental Assessment (EA) and the West HiLine Resource Management Plan Environmental Impact Statement (RMP/EIS). As evidence of its compliance with NEPA and the NHPA for the pipeline right-of-way, it relies upon the EA it prepared in the fall of 1999, Exh. H, Tab 3, and the cultural resource survey prepared on its behalf. Exh. H, Tabs 5, 6.
The BLM states that the challenged leases were issued in compliance with the Final West HiLine RMP/EIS, which was released in 1988. Exh. D. Plaintiffs contend the RMP/EIS did not address oil and gas leasing, and cannot be used to fulfill BLM's obligations under NEPA or the ESA.
The West HiLine RMP/EIS is a programmatic document, designed to "provide a master plan for managing and allocating public land resources within the planning area over the next 10 to 15 years." Exh. D, at 3. The document's self description says it is Exh. D, at 3.
The RMP/EIS planning area includes 626,098 surface acres and 1,328,014 subsurface acres administered by the BLM. Exh. D, at 1. The RMP/EIS identified and resolved five primary land-use issues in the planning area: 1) it identified lands for retention, disposal, and acquisition; 2) it amended...
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