San Juan Citizens Alliance v. Norton

• Decision Date: 30 September 2008
• Docket Number: No. CIV 04-1038 JCH/RLP.,CIV 04-1038 JCH/RLP.
• Citation: 586 F.Supp.2d 1270
• Parties: SAN JUAN CITIZENS ALLIANCE, et al, Plaintiffs, v. Gale NORTON, et al, Defendants, and Southern Ute Indian Tribe, et al, Defendants-Intervenors.
• Court: U.S. District Court — District of New Mexico

586 F.Supp.2d 1270

SAN JUAN CITIZENS ALLIANCE, et al, Plaintiffs, v. Gale NORTON, et al, Defendants, and Southern Ute Indian Tribe, et al, Defendants-Intervenors.

No. CIV 04-1038 JCH/RLP.

United States District Court, D. New Mexico.

September 30, 2008.

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Alletta D'Andelot Belin, Steve Sugarman, Belin & Sugarman, Santa Fe, NM, Michael L. Chiropolos, Western Resource Advocates, Boulder, CO, Sharon Buccino, Natural Resources Defense Council, Washington, DC, for Plaintiffs.

Donna Fitzgerald, US Department of Justice, Washington, DC, for Defendants.

Bradford C. Berge, Holland & Hart LLP, Michael J. Thomas, Robert A Stranahan, IV, Commissioner of Public Lands John L. Sullivan, New Mexico State Land Office, Santa Fe, NM, Charles A. Breer, Charles L. Kaiser, Davis Graham & Stubbs LLP, Denver, CO, Matthew R. Hoyt, Albuquerque, NM, James Earl Glaze, Sonosky, Chambers, Sachse & Endreson, Washington, DC, Steven Boos, Maynes Bradford Shipps & Sheftel, Durango, CO, for Defendants-Intervenors.

MEMORANDUM OPINION AND ORDER

JUDITH C. HERRERA, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Petition for Review of Agency Action [Doc. 29], filed March 30, 2005. This case concerns a dispute over whether the United States Bureau of Land Management ("BLM") followed federal laws when approving a new plan for land management in northwest New Mexico's San Juan Basin, which included additional oil and gas development.¹ The Court's function in a case seeking review of agency action is to review the record of the agency's decision-making process to determine whether the agency's decision was based on a consideration of the legally relevant factors and if the agency's decision was arbitrary and capricious. Having exhaustively reviewed the voluminous record in this case and having considered the petition, briefs, relevant law, arguments of the parties at a hearing held on October 9, 2007, and the submitted supplemental authorities, and being otherwise fully informed, the Court finds that BLM acted appropriately and in accordance with the law so that Plaintiffs' petition is not well taken and should be denied.

FACTUAL BACKGROUND

In March 2003, the Farmington Field Office of the BLM issued a revised Resource Management Plan ("RMP") for northwest New Mexico's San Juan Basin and a Final Environmental Impact Statement ("FEIS") related to that plan. In December 2003, BLM issued its Record of Decision ("ROD") adopting the RMP and FEIS. Plaintiffs, a collection of conservation groups, individual ranchers, Navajo Chapters, and Native American interest groups, contend that BLM violated the National Environmental Policy Act ("NEPA"), National Historic Preservation Act ("NHPA"), and the Federal Land Policy Management Act ("FLPMA") in adopting the RMP and FEIS. Plaintiffs argue that, in developing its management plan for the San Juan Basin ("SJB"), BLM did not sufficiently consider development alternatives that would afford greater protection to the environment and cultural assets.

The SJB straddles the New Mexico-Colorado border and encompasses a population of approximately 175,000 people and 16,000 square miles. Administrative Record ("AR") 3:1.18 at 61.² It contains the San Juan River, a major watershed, as well as sacred Native American sites, cultural resources, and other recreational lands. The New Mexico portion of the SJB encompasses one of the largest natural gas fields in the United States and has been under development for more than 50 years. Virtually all of its lands with high oil and gas potential have already been leased, and the area contains approximately 18,000 active oil and gas wells and 15,000-20,000 miles of roads. "Over 50 years of development have left no large blocks of unfragmented habitat." FEIS at 2-248.³ Accelerated natural gas development is also planned in the SJB on the adjacent Southern Ute Reservation and San Juan National Forest, both in Colorado, and in Carson National Forest in New Mexico.

In 1988, BLM approved the first RMP for the Farmington Field Office ("FFO") area, which encompasses 1.4 million acres of BLM-administered public lands, 8 millions acres of mixed ownership land, and 3 million acres of subsurface minerals. BLM amended this RMP six times between 1990 and 2000, primarily to ensure that the planning document kept pace with the increasingly dense gas development sought by lessees in the planning area. In 1991, BLM approved the "Oil and Gas Leasing Development Amendment" to the RMP, which authorized drilling of an additional 4,465 wells with up to 28,130 acres of new surface disturbance over the 20-year period spanning 1991 to 2011. AR 1:1.03 at 54. However, BLM concedes that by 2001 both the number of wells and the area of disturbance already exceeded the development authorized in the 1991 RMP. FEIS at 4-121.

Therefore, in August 2000, the FFO initiated the preparation of an RMP revision and accompanying Environmental Impact Statement ("EIS") to guide land use and management for the next twenty years, and to update the management constraints on oil and gas development. The new RMP, at the heart of this case, revises the 1988 RMP and its subsequent amendments. To identify issues to be addressed in the revised RMP and EIS, BLM held formal public meetings in Farmington, Crownpoint, and Cuba, New Mexico; sent letters to state, county, local, and tribal governments; and used a consulting firm to conduct interviews with local residents, including rural Navajo residents. Through these meetings, BLM identified the five principal land use and management issues it would address in the RMP revision and associated EIS.

In 2001, BLM commissioned the New Mexico Institute of Mining and Technology to work with oil and gas industry representatives to identify lessees' future demand for new gas development in the SJB, based on new state orders that allowed higher density well spacing through infill drilling. FEIS at 2-1. This study resulted in a Reasonably Foreseeable Development Scenario ("RFDS") which focused on subsurface development and the associated surface impact of this development in terms of wells drilled. AR 1:18 at 6. The RFDS predicted that, between 2002 and 2022, 9,970 new wells would be drilled in the SJB, although it noted that technological advances could reduce the number to be drilled. Based on the RFDS, BLM prepared an EIS that described the environmental impacts of this reasonably foreseeable development within the SJB, and prepared an RMP that would purportedly balance development needs with other resource management objectives. Because the vast majority of the oil and gas resources within the SJB were already leased, and BLM was concerned about the contractual rights of the leaseholders with respect to development, the EIS analyzed the environmental impact of the full-scale development predicted by the RFDS.

In June 2002, BLM published a draft version of its proposed RMP and EIS analyzing four alternatives, including a noaction alternative, which contained varying degrees of oil and gas leasing and development, provisions for off-highway vehicle ("OHV") use, land use adjustments, coal leasing, and protection for Specially Designated Areas ("SDAs"). The purpose of the RMP amendment and FEIS was to "provide a comprehensive framework for managing the public lands and for allocating resources during the next 20 years using the principles of multiple use and sustained yield," and "to analyze the impacts of implementing existing and future land use decisions." FEIS at 1-1, 1-2. The RMP/EIS would allow up to 9,970 new gas wells on federal mineral leases in the FFO, to be drilled at a rate of approximately 500 wells per year for the next 20 years. This would constitute 50% more fluid mineral development in FFO lands than had occurred in the preceding sixty or more years.

In August 2002, after preparation of the draft RMP/EIS, the FFO held four public hearings, each preceded by informal workshops, in Farmington, Crownpoint, and Cuba, New Mexico, as well as Durango, Colorado. Public comment on the draft RMP/EIS closed in September 2002. BLM responded to the oral and written comments it received by conducting additional analyses and adding material on ozone, visibility, prevention of significant deterioration, and differing air quality impacts among the several alternatives. The final proposed RMP/FEIS was released for a 30-day protest period on April 4, 2003. On May 5, 2003, Plaintiffs filed an extensive protest of the proposed plan, which challenged virtually every element of the plan that dealt with oil and gas development and contained many of the same contentions that make up their current petition before this Court. BLM denied Plaintiffs' protest in September 2003 in a lengthy letter that attempted to address each of Plaintiffs' contentions. AR 2:100.2.

BLM received a total of 26 protest letters. Although Plaintiffs and some other groups protested that the RMP/EIS did not impose sufficient restrictions on development, many oil and gas companies and the New Mexico Oil and Gas Association protested that the RMP/EIS imposed undue restrictions on companies' rights to develop their leases. AR 2:91.1, 2:92.1, 2:93.1, 2:98.1. Nineteen of the protest letters received extensive written responses from the BLM Director's Office. Of the remaining seven letters, one was withdrawn and the other six were rejected for lack of standing. None of the protests resulted in any changes to the proposed plan. On September 29, 2003, the New Mexico State Director of BLM approved the RMP, and BLM published notice of its Record of Decision ("ROD") in the Federal Register on October 9, 2003. The ROD was signed in December of 2003.⁴

The RMP/FEIS discusses four options for future development in the FFO. Its Preferred Alternative authorizes almost 27,000 acres of new surface disturbance on...