Upper Green River Alliance v. U.S. Bureau of Land Mgmt.
| Decision Date | 05 April 2022 |
| Docket Number | Case No. 2:19-CV-146-SWS |
| Citation | 598 F.Supp.3d 1303 |
| Parties | UPPER GREEN RIVER ALLIANCE, Western Watersheds Project, and Center for Biological Diversity, Petitioners, v. UNITED STATES BUREAU OF LAND MANAGEMENT and William Perry Pendley, in his official capacity as Deputy Director of the U.S. Bureau of Land Management, Respondents, and Jonah Energy, LLC and State of Wyoming Respondent-Intervenors. |
| Court | U.S. District Court — District of Wyoming |
Andrea L. Santarsiere, Center for Biological Diversity, Victor, ID, Michael Saul, Pro Hac Vice, Center for Biological Diversity, Denver, CO, Sarah Stellberg, Pro Hac Vice, Advocates for the West, Boise, ID, Wendy S. Park, Pro Hac Vice, Center for Biological Diversity, Oakland, CA, for Petitioners.
Jeremy A. Gross, United States Attorney's Office, Cheyenne, WY, Thomas W. Ports, Jr., US Department of Justice, Environment and Natural Resources Division, Washington, DC, for Defendants United States Department of the Interior Bureau of Land Management, Bureau of Land Management Deputy Director.
Elliott J. Adler, James C. Kaste, Travis Steven Jordan, Wyoming Attorney General's Office, Cheyenne, WY, for Respondent-Intervenor State of Wyoming.
Gail L. Wurtzler, Pro Hac Vice, Kathleen C. Schroder, Pro Hac Vice, R. Kirk Mueller, Davis Graham & Stubbs LLP, Denver, CO, for Respondent-Intervenor Jonah Energy LLC.
ORDER UPHOLDING AGENCY ACTION
This matter is before the Court under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, to review the Bureau of Land Management's approval of the Normally Pressured Lance Project ("NPL Project"). Respondent Jonah Energy proposed the NPL Project to extract natural gas resources on the sage-brush scrublands in northwest Wyoming. Petitioners contend the BLM acted arbitrarily and capriciously in approving the project because the agency did not take a "hard look" at impacts to wildlife, particularly greater sage grouse and pronghorns. All parties have fully briefed the matter.1 (ECF Nos. 52, 57, 58, 59, 62.)
On review, this Court determines the BLM complied with NEPA and the agency took a "hard look" at all potential environmental impacts. The agency properly considered several alternatives and responded to public comments throughout the administrative process. Accordingly, the Court affirms the BLM's decision approving the NPL Project.
The greater sage grouse is a bird native to the western United States, including northwest Wyoming. (BLM126800.) The bird's survival is largely dependent on sagebrush, which is found throughout Sublette County, Wyoming, including the NPL Project Area.2 (BLM126798.) Loss of sagebrush across the country has contributed to sage grouse population decline over the past century. (BLM126802.) However, the Upper Green River Valley in Wyoming attracts thousands of sage grouse every winter. (BLM127089.)
Sage grouse Winter Concentration Areas3 ("WCAs") are places where groups of sage grouse congregate and live during the winter, primarily between early December and mid-March. (BLM128627.) Sage grouse prefer locations in the winter where sage brush grows higher than the snow and even though the WCAs are outside of primary sage grouse habitat, these areas are "important to maintaining sustainable Sage-Grouse populations." (BLM128628.) Any type of surface disturbance in WCAs is prohibited during the winter to protect the habitat for the sage grouse. (Wyoming Executive Order 2015-4 at 6–7.)
Sage grouse are sensitive to human activities, including oil and gas development. Sage grouse avoid wintering anywhere within 1.18 miles (1900 meters) of such activities. (BLM077925.) The greater the well pad density in an area, the less likely sage grouse will use that habitat during winter. (See generally BLM017143.) This avoidance could further decrease the Wyoming sage grouse population. (BLM 072677; see also BLM017105.)
Decline in the sage grouse population over the past century has sparked national conversations about protecting the species. In 2010, the U.S. Fish and Wildlife Service listed the greater sage grouse as "warranted, but precluded" in favor of higher priority species. 75 F. Reg. 13,910 (March 23, 2010). The primary threats to sage grouse were habitat loss and fragmentation, which were exacerbated by the lack of regulation to protect sage grouse. Id. In response to the "warranted, but precluded" designation, the BLM released a finalized list of amendments (2015 Wyoming Sage-Grouse Resource Management Plan Amendments) to protect sage grouse habitat. (BLM139375; BLM139384.)
The 2015 Wyoming Sage-Grouse Resource Management Plan Amendments ("RMP") designated "priority" and "general" habitat management plans for sage grouse, including additional protective measures. (BLM139457; BLM139469.) A priority habitat management area ("PHMA") is one with the "highest conservation value to maintaining or increasing sage grouse populations." (BLM139469.) These PHMAs do not include WCAs. The only protection required by the RMP in WCAs is a prohibition on surface disruption during the winter, when sage grouse use the habitat. (BLM139410.) Any additional protection measures for WCAs are determined as needed in consultation with the Wyoming Game and Fish Department ("WGFD"). (BLM139410.)
The RMP also requires phased development for any oil and gas exploration within sage grouse habitat. (BLM139502–04; BLM053287.) This is a protective measure known as a required design feature ("RDF") enumerated in the RMP. (BLM053287–88.) However, an RDF is not required if either: (1) it is not applicable to the site-specific conditions of the project or (2) an alternative protective measure is determined to provide equal or better protection to sage grouse or its habitat. (BLM053287.)
The pronghorn is an ungulate native to North America, found throughout the western United States. (BLM078857.) This case specifically analyzes the impacts to the Sublette Pronghorn Herd Unit (Herd Unit 401) which includes most pronghorn in Western Wyoming. (BLM128610.) Herd Unit 401 is found in and around the Project Area.4 (Id. ) Pronghorn located in Grand Teton National Park make a yearly migration through the Upper Green River Valley and Bridger-Teton National Forest. (BLM078859; BLM061274; BLM081323; BLM082388; BLM128610–11.) This migration, known as "Path of the Pronghorn," follows a 6,000-year-old migration corridor extending between 100 and 150 miles through north-west Wyoming. (BLM078857; BLM078859; BLM133184; BLM133184.) During this migration, pronghorn traverse the route over the course of three days. (BLM078859.) In the spring, the pronghorn travel the same route at a slower pace to return to Grand Teton National Park. (Id. ) The Path of the Pronghorn is designated as a protected national migration corridor5 by the U.S. Forest Service, although the protection does not extend to the Upper Green River Valley, where the NPL Project would be located.6 (BLM081401; BLM078890.)
The Path of the Pronghorn is the only remaining route for pronghorn in Grand Teton National Park to reach the Upper Green River Valley. (BLM078859.) There are no alternate migratory routes available for these pronghorns. (Id. ) "Development in crucial winter range and migration routes could ... eliminate the herd's migration memory and break the tradition of migration to the most suitable winter habitats, thus reducing the viability of pronghorn Herd Unit 401 in perpetuity." (BLM128980.) The Path of the Pronghorn runs through part of the NPL Project Area. (BLM130957.)
Although studies on this topic are limited, research indicates pronghorn are sensitive to oil and gas development and this development can hinder pronghorn movement and migration. (See BLM133428; see also BLM133462; BLM133503.) Pronghorn tend to avoid areas of oil and gas development by approximately 0.25 to 0.6 miles and avoid well pads within 100 meters. (BLM072696.) When pronghorn encounter development along migration routes, they may avoid these areas entirely, which can negatively impact foraging opportunities. (BLM127302; see BLM061274–75.) Oil and gas development along pronghorn migratory routes has the potential to significantly diminish the health of a herd. (BLM126616; see BLM 061274–75.)
Respondent-Intervenor Jonah Energy ("Jonah") submitted a proposal to extract natural gas resources from certain areas of its federal leases in Wyoming. (BLM128268–69.) The NPL Project Area, spans approximately 140,859 acres in Sublette County, Wyoming. (BLM128193) Currently, there are about 116 total wells already drilled within the Project Area, including fifty-five natural gas wells. (BLM128268.) The NPL Project would be located near two existing development projects: the Jonah Infill Development Project and the Pinedale Anticline Project. (BLM 127835.) The proposal requests permission to begin the project using delineation wells to determine the extent of the natural gas resources in the NPL project area, because no similar exploration has been done.7 (BLM128301) Ultimately, Jonah plans to drill up to 3,500 directionally drilled natural gas wells using multi-well pads in the NPL Project Area. (BLM128193.) The proposal includes plans to develop up to 350 new wells per year, including the necessary facilities, such as well pads, access roads, and pipelines. (Id. ) The NPL Project development phase would span ten years, but the overall production phase would be thirty years. (BLM043705.) Jonah estimates the total lifespan of the NPL Project to be forty years. (BLM127835.)
The NPL Project Area is primarily sagebrush scrubland. (ECF No. 15 at 2; BLM128627; BLM128564.) The State of Wyoming effectively owns the pronghorn and sage grouse species (as it does all wildlife) within the NPL Project Area. Wyo. Stat. Ann. § 23-1-103 (2021). The State's goal is providing "an adequate and flexible system" to manage...
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