Richardson v. Bureau of Land Management, CIV.05-0460 BB/RHS.

Decision Date27 September 2006
Docket NumberNo. CIV.05-0460 BB/RHS.,No. CIV.05-0588 BB/RHS.,CIV.05-0460 BB/RHS.,CIV.05-0588 BB/RHS.
Citation459 F.Supp.2d 1102
PartiesThe State of NEW MEXICO EX REL. Governor Bill RICHARDSON, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Federal Defendants, and Independent Petroleum Ass'n of New Mexico, Defendant-Intervenor. and New Mexico Wilderness Alliance, et al., Plaintiffs, v. Linda Rundell, et al., Federal Defendants.
CourtU.S. District Court — District of New Mexico

Frances C. Bassett, Stephen R. Farris, NM Attorney General's Office, Water Environment Utility Division, Alletta D'Andelot Belin, Steve Sugarman, Belin & Sugarma, Santa Fe, NM, for Plaintiffs.

Andrew A. Smith, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for Defendants.

Earl E. Debrine, Jr., Patrick Joseph Rogers, Modrall, Sperling, Roehl, Harris & Sis, Albuquerque, Nm, William Perry Pendley, Alison Roberts, Mountain State Legal Foundation, Lakewood, CO, for Intervenor.

MEMORANDUM OPINION

BLACK, District Judge.

These consolidated cases involve administrative appeals from decisions made by the United States Bureau of Land Management ("BLM"). The decisions challenged by Plaintiffs include BLM's adoption of a Resource Management Plan Amendment ("RMPA"), as well as BLM's approval of an oil-and-gas lease covering a portion of the area included in the RMPA. Plaintiffs maintain that BLM violated the National Environmental Policy Act ("NEPA"); the National Historic Preservation Act ("NHPA"); the Endangered Species Act ("ESA"); the Federal Land Policy and Management Act ("FLPMA"); and the Administrative Procedure Act ("APA").1 In addition to the administrative appeals, this opinion addresses a motion to supplement the record, filed by Plaintiff State of New Mexico ("State") (Doc. 105).

Standard of Review: The parties agree that judicial review of agency actions taken under any or all of the above statutes should be in accordance with the customary arbitrary-and-capricious review of the administrative record. See, e.g., Silverton Snowmobile Club v. United States Forest Service, 433 F.3d 772, 779-80 (10th Cir.2006) (NEPA and FLPMA); Montana Wilderness Ass'n v. Fry, 310 F.Supp.2d 1127, 1133-34 (D.Mont.2004) (NEPA, NHPA, ESA, and FLPMA).2 In reviewing a decision under the arbitrary-and-capricious standard, the Court reviews the entire administrative record, or so much of that record as has been provided by the parties, and decides only whether the agency's action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1167 (10th Cir.1999). The Court does not pass judgment on the wisdom or merits of the agency's decision. See id., p. 1172 (NEPA prohibits uninformed actions, but not unwise actions).

Summary of Facts: The parties are familiar with the facts, and the Tenth Circuit's appellate review of the record (if any) will be identical to this Court's review. See id., p. 1167, n. 5. Therefore, the Court will only briefly set out the relevant facts.3 In 1986 BLM developed a Resource Management Plan ("RMP") covering federal lands administered by BLM in Sierra and Otero Counties in southern New Mexico ("project area"). Over ten years later, in 1997, an exploratory well located natural gas in a portion of the RMP area called the Bennett Ranch Unit of the Otero Mesa grasslands. As a result of this find, the oil and gas industry nominated for leasing approximately 250,000 acres of BLM land in the Otero Mesa area. BLM then decided that the 1986 RMP was inadequate to address the demand for leases and competing uses of the land, and decided to issue an amended RMP after undergoing the process required by NEPA, NHPA, ESA, and FLPMA. No new oil and gas leases were issued during this process. In October 2000, BLM issued a draft resource management plan amendment and environmental impact statement ("DEIS") analyzing three alternatives for the amended RMP: a no-action alternative; BLM's preferred alternative, designated as Alternative A; and Alternative B, which was more restrictive of oil and gas development, and therefore more protective, than Alternative A.

Following issuance of the DEIS, the public submitted hundreds of comments to BLM. Almost all of these comments concerned the level of protection provided to natural resources in the Otero Mesa and Nutt grasslands portions of the project area.4 Three years after the DEIS was issued, BLM released its proposed resource management plan amendment ("PRMPA") and final environmental impact statement ("PRMPA/FEIS" or simply "FEIS"). In the PRMPA/FEIS, BLM did not select one of the three alternatives analyzed in the DEIS as its final plan for the project area. Instead, BLM chose an alternative called Alternative A-modified, which consisted of Alternative A with certain modifications; the significance of those modifications is a crucial issue in this case. Plaintiffs and others filed administrative protests against the PRMPA/FEIS in February 2004, and Plaintiff Governor Richardson ("Governor") submitted written recommendations to the State BLM Director in March 2004. In response to the protests and the Governor's submission, BLM made a change to the RMPA protecting more acreage from oil and gas development in the Otero Mesa area than had been protected under Alternative A-modified. BLM also issued a document denominated as a supplement to the proposed RMPA and FE IS, and allowed public comment on this document. The BLM State Director's decision was appealed to the national BLM Director, who rejected the appeal; the State Director then issued a Record of Decision ("ROD") approving the final RMPA and FEIS in January 2005.

Subsequently, BLM issued a notice of competitive lease sale for a 1600-acre parcel of land located within the Bennett Ranch Unit on Otero Mesa. BLM did not conduct any further environmental review prior to holding the lease sale in July 2005. There was one bidder at this lease sale, a company that owns leases on adjacent lands in the Bennett Ranch Unit. The lease has not yet been executed, however, as BLM has agreed to delay final execution of the lease pending a decision from this Court.

Plaintiffs have challenged BLM's decisions concerning both the RMPA and FEIS for the entire two-county project area, as well as the specific Bennett Ranch Unit lease ("BRU lease"). In this opinion, the Court will separately analyze the claims raised by Plaintiffs with respect to the area-wide RMPA and the BRU lease.

NEPA Claims — RMPA/FEIS

Plaintiffs have raised the following NEPA claims in support of their arguments concerning BLM's adoption of Alternative A-modified as the amended RMP for the project area: (1) Since Alternative A-modified was not one of the alternatives discussed in the DEIS, BLM should have prepared a supplemental EIS proposing to adopt Alternative A-modified and discussing the environmental effects of that alternative, rather than simply naming it as the preferred alternative in the FEIS; (2) the FEIS is substantively deficient in several respects, including a failure to adequately analyze the potential impacts of oil and gas development on the Salt Basin aquifer, lack of analysis of fragmentation effects of development, insufficient consideration of the effects of seismic exploration activity, and utilization of a false assumption that reclamation can be successful in the Chihuahuan desert grasslands; and (3) BLM should have considered other, nondevelopment-oriented alternatives in the DEIS, since all three of the alternatives contemplated allowing a certain amount of oil and gas development in the Otero Mesa area.

Supplemental EIS Issue: In the DEIS, BLM identified its preferred alternative as Alternative A. This alternative included a significant restriction on oil and gas development on Otero Mesa and the Nutt Grasslands: there was a no-surface-occupancy ("NSO") stipulation that would prevent any construction of roads, well pads, pipelines or other structures outside a 300-meter corridor tracking existing roads. In other words, all surface disturbance and occupation had to take place within 150 meters, on either side of an existing road. [DEIS 2-25] This NSO stipulation would have required exploration to be conducted by means of directional (slanted) drilling rather than vertical drilling. Representatives of the oil and gas industry objected to this restriction, and in response BLM created a new preferred alternative, Alternative A-modified, which BLM revealed for the first time in the PRMPA/FEIS. This alternative dropped the NSO stipulation for Otero Mesa and the Nutt Grasslands, and instead identified a new approach. Under the new approach, a leaseholder could only create surface disturbance on 5% of the leased parcel at any one time, and if the 5% level had been met the leaseholder could not move on to disturb more surface until the prior area had been successfully reclaimed. [PRMPA/FEIS 2-28, 2-29] In addition, lessees would be subject to a "unitization" requirement, which essentially means several companies would have to coordinate exploration and development activities. [id.] This change from the NSO stipulation generated intense protests from Plaintiffs and other members of the public, and BLM responded by increasing protection for the desert grasslands in two ways: first, instead of temporarily withholding what BLM considered the "best" grasslands from leasing, BLM permanently closed those areas; and second, BLM imposed an absolute cap on surface disturbance of approximately 1600 acres, regardless of the 5% limitation applicable to individual leases. [FEIS 2-29; ROD 3, 6-7, 20] BLM did not, however, restore the NSO stipulation to the areas of Otero Mesa and the Nutt Grasslands that would be open to leasing.

The change in the treatment of leasing on Otero Mesa and the Nutt Grasslands is the...

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6 cases
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    • United States
    • U.S. District Court — District of New Mexico
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3 books & journal articles
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