S. Utah Wilderness Alliance v. Bernhardt, Civil Action No. 20-3654 (RC)

• Decision Date: 12 January 2021
• Docket Number: Civil Action No. 20-3654 (RC)
• Citation: 512 F.Supp.3d 13
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs, v. David BERNHARDT, et al., Defendants. Pure Helium, LLC, Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

512 F.Supp.3d 13

SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs,

v. David BERNHARDT, et al., Defendants.Pure Helium, LLC, Defendant-Intervenor.

Civil Action No. 20-3654 (RC)

United States District Court, District of Columbia.

Signed January 12, 2021

Landon Newell, Pro Hac Vice, Stephen H.M. Bloch, Joseph J. Bushyhead, Pro Hac Vice, Southern Utah Wilderness Alliance, Salt Lake City, UT, William N. Lawton, William Stewart Eubanks, II, Eubanks & Associates, LLC, Washington, DC, for Plaintiffs Southern Utah Wilderness Alliance, Center for Biological Diversity, Living Rivers.

Sharon Buccino, Natural Resources Defense Council, William Stewart Eubanks, II, Eubanks & Associates, LLC, Washington, DC, Stephen H.M. Bloch, Joseph J. Bushyhead, Pro Hac Vice, Landon Newell, Southern Utah Wilderness Alliance, Salt Lake City, UT, for Plaintiff Natural Resources Defense Council.

Michelle-Ann Camielle Williams, U.S. Department of Justice, Washington, DC, for Defendants David Bernhardt, William Perry Pendley, Kent Hoffman.

Alison D. Garner, Mark Benjamin Machlis, Pro Hac Vice, Dorsey & Whitney LLP, Salt Lake City, UT, for Defendant-Intervenor.

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This matter comes before the Court on Plaintiffs’ motion for temporary restraining order and preliminary injunction. Plaintiffs, a collection of non-profit environmental organizations, seek an order enjoining the Bureau of Land Management ("BLM") from authorizing development of public lands located near the Labyrinth Canyon Wilderness in southeastern Utah. Plaintiffs’ lawsuit primarily challenges the sale of a federal oil and gas lease in the area on the grounds that BLM failed to comply with its obligations under the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act ("APA"). At issue in the present motion, however, is BLM's recent approval of certain right-of-way ("ROW") applications for ground disturbing work near the federal lease. Twin Bridges Resources, LLC ("Twin Bridges") and Pure Helium, LLC ("Pure Helium"), a company that has intervened in this case, jointly own the federal lease at issue but also own two nearby mineral leases issued by the Utah School of Institutional Trust Lands Administration ("SITLA"). BLM approved ROW applications to improve an access road and to construct a well pad and pipelines that will allow the companies to perform exploratory work on one of their SITLA leases. Plaintiffs seek an injunction that prevents this work, arguing that BLM failed to analyze the cumulative impacts of water use required for this part of the project. Because the Court finds that Plaintiffs are unlikely to succeed on the merits of their claim regarding the recently approved work, and for the reasons set forth below, it denies Plaintiffs’ motion for emergency injunctive relief.

II. BACKGROUND

A. Statutory and Regulatory Background

Although a web of different statutory and regulatory schemes will be relevant in this case, the Court will only describe those relevant to the present motion.

1. National Environmental Policy Act

NEPA is the country's basic national charter for the protection of the environment. See 40 C.F.R. § 1500.1(a). Broadly speaking, NEPA requires that federal agencies consider the environmental consequences of their actions. See 42 U.S.C. §§ 4321 – 4370(h) ; 40 C.F.R. § 1501.1. NEPA directs agency decisionmakers to identify and understand the environmental effects of proposed federal 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, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA thus "imposes on agencies certain procedural requirements, but it ‘does not mandate particular consequences.’ " Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs , 440 F. Supp. 3d 1, 8 (D.D.C. 2020) (quoting Citizens Against Burlington, Inc. v. Busey , 938 F.2d 190, 194 (D.C. Cir. 1991) ).

Under NEPA, an agency must prepare an environmental impact statement ("EIS") for every "major [f]ederal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1502.3. An EIS is a detailed study of "the environmental impact of the proposed action" and "any adverse environmental effects which cannot be avoided." 42 U.S.C. § 4332(C)(i)–(ii). An EIS must examine "alternatives to the proposed action," and the action's direct, indirect and cumulative effects.¹ 42 U.S.C. § 4332(C)(iii) ; 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.² To determine whether an EIS must be prepared for a proposed action, the agency may prepare an environmental assessment ("EA"). See 40 C.F.R. §§ 1501.4, 1508.9. An EA is "a ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ " Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 40 C.F.R. § 1508.9(a) ). An EA, like an EIS, must take a "hard look" at the environmental consequences of the proposed action, Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), including its direct, indirect, and cumulative effects, see EarthReports, Inc. v. FERC , 828 F.3d 949, 953 (D.C. Cir. 2016) ; 40 C.F.R. §§ 1508.9, 1508.25(c). If, after preparing the EA, the agency determines that an EIS is not necessary, the agency must issue a finding of no significant impact ("FONSI") summarizing its decision. See 40 C.F.R. §§ 1501.3, 1501.4, 1508.13.

B. Oil and Gas Development Framework

Oil and gas development on federal land is typically conducted through a three-stage process governed by the Federal Land Policy and Management Act of 1976 ("FLPMA"), NEPA, and the BLM's Land Use Planning Handbook. These stages are: (1) land use planning; (2) leasing; and (3) drilling. During the land use planning stage, a BLM field office develops a resource management plan for its assigned geographic area (the "planning area"). 43 U.S.C. § 1712(a) ; 43 C.F.R. §§ 1601.0-5(n), 1610.1. The resource management plan determines which portions of the planning area will be open to oil and gas leasing, and under what conditions. 43 U.S.C. § 1712(a). The plan typically incorporates a reasonably foreseeable development scenario ("RFDS"), which projects the scope and pace of oil and gas development within the planning area. By regulation, a resource management plan must be accompanied by an EIS. See 43 C.F.R. § 1601.0-6.

If a resource management plan authorizes oil and gas development on certain land parcels, BLM must sell leases for those parcels on a quarterly basis. 30 U.S.C. § 226(b)(1)(A) ; 43 C.F.R. § 3120.1-2. An oil and gas lease confers "the right to use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold." 43 C.F.R. § 3101.1-2. However, BLM may impose terms and conditions on the leases, including conditions designed to protect the environment. Id. § 3101.1-3. At the leasing stage an EIS may be required but is not mandated by regulation.

Once a lease is sold, the lessee must apply for a permit to drill ("APD") for oil and gas on the leased parcel, subject to BLM approval. 43 C.F.R. § 3162.3-1(c). BLM may condition APD approval on the lessee's adoption of "reasonable measures," delimited by the lease and the lessee's surface use rights, to mitigate the drilling's environmental impacts. Id. § 3101.1-2. And before approving an APD, BLM must confirm that the APD complies with the governing resource management plan, see id. § 1610.5-3, and it must undertake additional NEPA analysis, id. § 3162.5-1.

C. Factual and Procedural Background

The Labyrinth Canyon Wilderness is located in the San Rafael Desert regions of southeastern Utah. Am. and Supp. Compl. ¶ 4 ("Am. Compl."), ECF No. 32. According to Plaintiffs, it is one of the "least traveled areas of federal public lands in the nation." Id. Congress designated the area as wilderness land, subject to protections under the Wilderness Act, see 16 U.S.C. § 1134 – 36, with passage of the John D. Dingell, Jr. Conservation, Management, and Recreation Act ("Dingell Act") in March 2019. See Pub. L. 116-9, 133 Stat. 580 (2019).

Pure Helium owned three leases in the Labyrinth Canyon Wilderness prior to this Congressional designation—the company purchased two leases from SITLA in 2015 and 2016 and it bought the federal lease on December 18, 2018. See Pure Helium Opp'n to Pls.’ Renewed Mot. TRO and Prelim. Inj. at 4 ("Pure Helium Opp'n"), ECF No. 35. Pure Helium hopes to develop the leases to extract helium. To that end, Pure Helium sought approval from BLM to improve an existing access road—outside the wilderness area boundaries—that connects its SITLA lease to a main road, construct a well pad, and drill an exploratory well targeting one of its SITLA leases. See id. at 5–6. The project would also include installing pipelines that run alongside the road. See id. at 6.

Plaintiffs originally filed suit and sought emergency injunctive relief before BLM had authorized any construction work to begin. See Compl., ECF No. 1; Pls.’ Mem. Supp. Mot. TRO and Prelim. Inj. at 1, ECF No. 9. BLM and Pure Helium argued that the Court could not grant an emergency injunction before the agency had issued a decision. See Order at 1, ECF No. 25. But because it appeared that BLM would approve construction and that work would commence mere hours later, the Court issued a temporary injunction pursuant to the All Writs Act to prevent Plaintiffs’ claims from becoming ripe and then moot nearly simultaneously. See id. BLM subsequently issued its Decision Record ("DR") and FONSI on December 23, 2020. See Notice of Agency Decision, ECF No. 27...