New Mexico ex rel. Richardson v. Blm

• Decision Date: 28 April 2009
• Docket Number: No. 06-2352.,No. 06-2353.,No. 06-2354.,06-2352.,06-2353.,06-2354.
• Parties: State of NEW MEXICO ex rel. Bill RICHARDSON, Governor, Gary King, Attorney General,<SMALL><SUP>*</SUP></SMALL> New Mexico Energy, Minerals and Natural Resources Department, New Mexico Department of Game and Fish, New Mexico Environment Department, and Katherine Slick, New Mexico State Historic Preservation Officer; New Mexico Wilderness Alliance; Wilderness Society; Sierra Club; Natural Resources Defense Council; National Wildlife Federation; Southwest Environmental Center; Forest Guardians; New Mexico Wildlife Federation, Plaintiffs-Appellees-Cross-Appellants, v. BUREAU OF LAND MANAGEMENT; Mike Pool, Director, Bureau of Land Management; Linda Rundell, New Mexico State Director, Bureau of Land Management; Benjamin N. Tuggle, in his Official Capacity as the Regional Director, Region 2, U.S. Fish and Wildlife Service; Rowan W. Gould, in his official capacity as the Director of the U.S. Fish and Wildlife Service; United States Fish and Wildlife Service; Ken Salazar, in his official capacity as Secretary of the Interior; United States Department of the Interior,<SMALL><SUP>**</SUP></SMALL> Defendants-Cross-Appellees, and Independent Petroleum Association of New Mexico, Intervenor-Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

565 F.3d 683

State of NEW MEXICO ex rel. Bill RICHARDSON, Governor, Gary King, Attorney General,^* New Mexico Energy, Minerals and Natural Resources Department, New Mexico Department of Game and Fish, New Mexico Environment Department, and Katherine Slick, New Mexico State Historic Preservation Officer; New Mexico Wilderness Alliance; Wilderness Society; Sierra Club; Natural Resources Defense Council; National Wildlife Federation; Southwest Environmental Center; Forest Guardians; New Mexico Wildlife Federation, Plaintiffs-Appellees-Cross-Appellants, v. BUREAU OF LAND MANAGEMENT; Mike Pool, Director, Bureau of Land Management; Linda Rundell, New Mexico State Director, Bureau of Land Management; Benjamin N. Tuggle, in his Official Capacity as the Regional Director, Region 2, U.S. Fish and Wildlife Service; Rowan W. Gould, in his official capacity as the Director of the U.S. Fish and Wildlife Service; United States Fish and Wildlife Service; Ken Salazar, in his official capacity as Secretary of the Interior; United States Department of the Interior,^** Defendants-Cross-Appellees, and Independent Petroleum Association of New Mexico, Intervenor-Defendant-Appellant-Cross-Appellee.

No. 06-2352.

No. 06-2353.

No. 06-2354.

United States Court of Appeals, Tenth Circuit.

April 28, 2009.

Ronald Walter Opsahl (William Perry Pendley with him on the briefs), Mountain States Legal Foundation, Lakewood, CO, for the Intervenor-Defendant-Appellant-Cross-Appellee.

Alletta Belin, Belin & Sugarman, Santa Fe, New Mexico (Stephen F. Farris and Judith Ann Moore, Office of the Attorney General, State of New Mexico with them on the briefs) and James Angell (Andrea L. Zaccardi with him on the briefs), Earthjustice, Denver, CO, for Plaintiffs-Appellees-Cross-Appellants State of New Mexico, et al.

Elizabeth Peterson (Arthur Arguedas, Office of the Solicitor, U.S. Department of the Interior and Ronald J. Tenpas, Assistant Attorney General, Andrew A. Smith, Aaron P. Avila, and Andrew C. Mergen with her on the briefs), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants-Cross-Appellees Bureau of Land Management, et al.

Before LUCERO, ANDERSON, and O'BRIEN, Circuit Judges.

LUCERO, Circuit Judge.

This litigation concerns the environmental fate of New Mexico's Otero Mesa, the largest publicly-owned expanse of undisturbed Chihuahuan Desert grassland in the United States. From 1998 to 2004, the Bureau of Land Management ("BLM" or "the Agency") conducted a large-scale land management planning process for federal fluid minerals development in Sierra and Otero Counties, where the Mesa is located. Ultimately, the Agency opened the majority of the Mesa to development, subject to a stipulation that only 5% of the surface of the Mesa could be in use at any one time. Invoking the National Environmental Policy Act ("NEPA"), the Federal Land Policy and Management Act ("FLPMA"), and the National Historic Preservation Act ("NHPA"), the State of New Mexico and a coalition of environmental organizations led by the New Mexico Wilderness Association ("NMWA") challenged in federal district court the procedures by which BLM reached this determination. NMWA also challenged BLM's decision not to consult with the Fish and Wildlife Service ("FWS") under the Endangered Species Act ("ESA") regarding possible impacts of the planned development on the Northern Aplomado Falcon.

The district court rejected these challenges, save for the plaintiffs' argument that BLM erred in beginning the leasing process on the Mesa before conducting additional analysis of site-specific environmental impacts flowing from the issuance of development leases. Discerning serious flaws in BLM's procedures, we affirm the district court's conclusion that NEPA requires BLM to conduct site-specific analysis before the leasing stage but reverse its determination that BLM's plan-level analysis complied with NEPA. Moreover, we affirm its conclusion that BLM complied with public comment provisions in FLPMA, and we vacate as moot the portion of the district court's order addressing NMWA's ESA claims.

I

Within Sierra and Otero counties in southern New Mexico lie the northern reaches of the richly biodiverse Chihuahuan Desert. Among the several habitats comprising this desert ecosystem is the Chihuahuan Desert grassland, much of which has depleted to scrubland over the past century and a half. A New Mexico State University biology professor identifies this grassland as the most endangered ecosystem type in the United States. The Otero Mesa, which BLM seeks to open to oil and gas development upon conclusion of the planning process that is the subject of this litigation, is home to the endangered Northern Aplomado Falcon, along with a host of other threatened, endangered, and rare species. Only a few, unpaved roads traverse the Mesa. Lying beneath it is the Salt Basin Aquifer, which contains an estimated 15 million acre-feet of untapped potable water. Recognizing the importance of this valuable resource, the state of New Mexico and many citizens and environmental groups have sought to prevent development.

A

BLM manages some 1.8 million acres of surface land and 5 million acres of subsurface oil, gas, and geothermal resources in Sierra and Otero Counties. This includes the 427,275-acre Otero Mesa. Until recently, these resources were managed under the terms of a 1986 resource management plan (the "RMP"), see 43 C.F.R. § 1601.0-5(n), which contained no overall guidance on the management of fluid minerals development, leaving management decisions to be made on a case-by-case basis.¹ Because the area saw relatively little oil and gas exploration, BLM relied on the plan without incident for a decade and issued few development leases during this time.

This state of affairs was upended in 1997, when a Harvey E. Yates Company ("HEYCO") exploratory well struck natural gas on the Otero Mesa. The strike occurred on a parcel designated the Bennett Ranch Unit ("BRU"). Oil and gas companies quickly responded by nominating over 250,000 acres in the area for federal leases. See § 3120-3.1. BLM determined that under the terms of then-existing internal policy, the increased development interest required the Agency to issue a management plan specifically governing fluid mineral resources. See BLM Handbook H-1624-1 (1990); BLM Manual §§ 1620.06(A), 1620.2 (1986). Accordingly, BLM asked existing leaseholders to voluntarily suspend their leases and began the process of amending the RMP to address possible oil, gas, and geothermal development.² See Notice of Intent to Prepare a Resource Management Plan Amendment and Environmental Impact Statement, 63 Fed.Reg. 55404 (Oct. 15, 1998). The stated goals of the amendment process were to determine which public lands in Sierra and Otero Counties should be available for leasing and development and to direct how leased lands would be managed. Id. at 55405.

Amending a resource management plan is a "major federal action" whose potential environmental impacts must be assessed under NEPA. 42 U.S.C. § 4332(C); see also Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1131 (10th Cir.2006). Consequently, in October 2000, BLM issued a "Draft Resource Management Plan Amendment and Environmental Impact Statement for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties" (the "Draft EIS"). As NEPA requires, the Draft EIS analyzed several possible alternative management schemes for oil and gas development in the area. See 42 U.S.C. § 4332(C)(iii); 40 C.F.R. § 1502.14. Of the five alternatives identified, three were fully analyzed in the Draft EIS. The other two were eliminated without further analysis.

Both eliminated alternatives would have increased the level of environmental protection for the entire plan area beyond the level provided under existing management or any of the fully analyzed alternatives. One would have done so through a blanket ban on minerals development leasing; the other, through a "no surface occupancy" ("NSO") stipulation allowing minerals development only by slant drilling from non-BLM lands. These alternatives were "considered initially but eliminated prior to further analysis" based on the conclusion that adopting a plan which so limited development would be arbitrary and capricious under FLPMA's multiple-use mandate.³ See 43 U.S.C. § 1702(c). BLM also discounted one of the three alternatives analyzed in the Draft EIS: the "No-Action Alternative," or the option of taking no new planning action. After fully analyzing its likely impacts, BLM determined that the No-Action Alternative was not in compliance with its own policies.

Thus, BLM was left with two possible management schemes, "Alternative A" and "Alternative B." Of the two, Alternative A placed fewer restrictions on development, and BLM selected it as the preferred alternative. See 40 C.F.R. § 1502.14(e). Alternative A opened 96.9% of the plan area but placed limitations on possible development, subjecting 58.9% of the area to a combination of NSO stipulations, controlled surface use stipulations, and timing stipulations. Of particular relevance to this litigation, Alternative A subjected 116,206 acres of the Otera Mesa and 16,256 acres of the adjoining Nutt Desert Grasslands to an NSO provision allowing surface disturbance only within 492 feet of existing roads. BLM crafted this NSO restriction "[t]o protect portions of the remaining desert grassland community by minimizing habitat fragmentation."⁴

Also relevant to this litigation, the Draft EIS analyzed the potential impact on groundwater in the plan area only in general terms, without identifying or discussing specific aquifers such as the Salt Basin Aquifer. The Draft EIS concluded that in the construction phase of development:

The possibility for degradation of fresh water aquifers could result if leaks or spills occur from pits used for the storage of drilling...