W. Exploration, LLC v. U.S. Dep't of the Interior
| Decision Date | 31 March 2017 |
| Docket Number | Case No. 3:15-cv-00491-MMD-VPC. |
| Citation | 250 F.Supp.3d 718 |
| Parties | WESTERN EXPLORATION, LLC et al., Plaintiffs, v. U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Laura K. Granier, Davis Graham & Stubbs LLP, Michael Large, Washoe County District Attorney, Reno, NV, C. Wayne Howle, Joseph Tartakovsky, Nevada Attorney General's Office, Lawrence VanDyke, Office of the Nevada Attorney General, Carson City, NV, for Plaintiffs.
Holly A. Vance, U.S. Attorney's Office, Reno, NV, Luther L. Hajek, U.S. Department of Justice, Barclay T. Samford, U.S. Department of Justice Natural Resources Section, Denver, CO, Tanya C. Nesbitt, Washington, DC, for Defendants.
(Plfs' Motion for Summary Judgment—ECF No. 67; Plfs' Motion to Supplement Record—ECF No. 68; Defs' Motion for Summary Judgment—ECF No. 75; Intervenors' Motion for Summary Judgment—ECF No. 77; Defs' Motion to Strike—ECF No. 102)
Plaintiffs bring this action against the Department of the Interior ("DOI"), Bureau of Land Management ("BLM"), Department of Agriculture ("DOA"), United States Forest Service ("USFS" or "Forest Service"), and associated government officials, seeking review of two agencies' decisions to amend their resource management plans to provide greater protection to the greater-sage grouse ("GSG") species and their habitat.1 In particular, Plaintiffs request that the Court enjoin the agencies from implementing these resource management plans in Nevada and that they be remanded to the agencies for further consideration.
Before the Court are five motions: (1) Plaintiffs' Motion for Summary Judgment ("Plaintiffs' Motion") (ECF No. 67); (2) Plaintiffs' Motion to Supplement Administrative Record ("Motion to Supplement") (ECF No. 68); (3) Defendants' Motion for Summary Judgment ("Defendants' Motion") (ECF No. 75); (4) Intervenors' Motion for Summary Judgment ("Intervenors' Motion") (ECF No. 77); and (5) Defendants' Motion to Strike (ECF No. 102). Plaintiffs, Defendants and Intervenors filed responses (ECF Nos. 73, 76, 78, 82, 104) as well as replies (ECF Nos. 83,84, 94, 105), and Plaintiffs filed a sur-reply.2 (ECF No. 99). The Court held a hearing on the Motions on February 1, 2017. (ECF No. 123.)
The Court agrees with Plaintiffs that Defendants failed to comply with NEPA and remands for preparation of a supplemental environmental impact statement but denies Plaintiffs' request to enjoin implementation of the agencies' resource management plans pending remand.
The State of Nevada, nine Nevada counties,3 three mining companies,4 and a privately-owned ranch5 (collectively "Plaintiffs") initiated this action on September 23, 2015 to challenge BLM and USFS's (collectively "the Agencies") decisions to amend their respective Land Use and Resource Management Plans ("Plan Amendments"6 ). (ECF Nos. 1, 20.)
The impetus for the adoption of the Plan Amendments originated with the United States Fish and Wildlife Service ("FWS"). In March 2010, FWS issued a finding on petitions to list three entities of the greater sage-grouse as threatened or endangered under the Endangered Species Act ("ESA"). ( 75 Fed. Reg. 13910 (Mar. 23, 2010).) FWS found in part that "listing the greater sage-grouse (range wide) is warranted, but precluded by higher priority listing actions." Id. at 13910. FWS further examined whether existing regulatory mechanisms available to federal agencies, such as BLM and USFS, adequately protect sage-grouse species and their habitat and found them to be mainly inadequate. Id. at 13979–80, 13982. In response, the Agencies began the process of planning for incorporation of sage-grouse protection measures into their land management plans. (ECF No. 75 at 18.) Ultimately, on September 16 and 21, 2015, the Agencies issued Records of Decision ("RODs")7 approving their respective management plan amendments, which govern 67 million acres of federal lands across ten western states. (NV 91784; FS 14049.)
The Plan Amendments guide future land and resource management decisions on lands administered by BLM and the Forest Service. (NV 91787; FS 140074.) The Amendments aim to benefit the greater-sage grouse by maintaining healthy sagebrush-steppe landscapes while simultaneously ensuring that the lands maintain multiple uses. While the Plan Amendments generally established conservation measures for future decision making, they also contain some conservation measures that were self-implementing, mandatory, or took "immediate" effect upon publication of the Plan Amendments. (NV 90715: FS 140123.) For instance, the Plan Amendments recommend but do not mandate the withdrawal of particular public lands—specifically, Sagebrush Focal Areas ("SFAs")—from mineral entry under the General Mining Law, subject to valid existing rights. (NV 91813; FS 140069.) Consistent with the Plan Amendments, BLM petitioned the Secretary of Interior ("the Secretary") to consider proposing a withdrawal. (WO 65706.) However, the actual withdrawal did not occur until the Secretary decided to accept BLM's recommendation and issued a Notice of Proposed Withdrawal and Temporary Segregation8 ("Notice of Proposed Withdrawal") on September 24, 2015, one day after Plaintiffs initiated this action. ( 80 Fed. Reg. 57,635 (Sept. 24, 2015).) By contrast, the Plan Amendments immediately excluded nonenergy and salable mineral development on PHMA in Nevada. (NV 91814.)
In the First Amended Complaint ("FAC"), Plaintiffs allege that the Agencies' decisions to adopt the Plan Amendments are contrary to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701 et seq. , the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq. , the Small Business Administration Regulatory Flexibility Act ("SBREFA"), 5 U.S.C. § 801 et seq. , the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. , the General Mining Law, 3 U.S.C. §§ 21 et seq. , and the Due Process Clause of the Fifth Amendment. (ECF No. 20.)
Plaintiffs request that the Court enjoin the DOI and BLM from implementing the Nevada portion of the BLM Plan and enjoin the DOA and USFS from implementing the Nevada portion of the USFS Plan. (Id. at 3, 87–88.) In effect, Plaintiffs ask this Court to stop Defendants from taking any action that would interfere with Plaintiffs' continued access to all Nevada lands (including federal public lands) that were open for mineral entry or other public use prior to any segregation resulting from the withdrawal of federal public lands that was recommended in the RODs. ( Id. )
Plaintiffs and Defendants have filed cross-motions for summary judgment. (ECF Nos. 67. 75.) Intervenors have also moved for summary judgment, joining certain of Defendants' arguments and asking the Court to deny Plaintiffs' injunction request or vacatur pending remand even if the Court were to agree with Plaintiffs on the merits. (ECF No. 77.)
As a threshold matter, Defendants seek to strike Exhibits 1, 2 and 6 of Plaintiffs' sur-reply (ECF No. 99), contending that the information presented is not part of the administrative record and is presented for the first time in Plaintiffs' sur-reply. (ECF No. 102.) Plaintiffs counter that the Court may consider extra-record information for purposes of standing and the information presented responds to the issues raised in Defendants' reply. (ECF No. 104.) Plaintiffs also argue that the information in these exhibits is not "new evidence ... but is merely responsive to, and ‘provides the full context’ for the ‘selected recitation of the facts' found in Defendants' Reply." (Id. at 2.) However, it is Plaintiffs' burden to demonstrate standing. See FW/PBS, Inc. v. Dallas , 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Plaintiff cannot make a general statement to support standing and then provide more specific information in the sur-reply after Defendants had challenged the lack of injury to support Plaintiffs' standing. This is particularly true where the information was available to Plaintiffs during the briefing period on the pending motions.
The Court agrees with Defendants that the new information presented for the first time in Exhibits 1 and 2 should be stricken. As Defendants point out, except for the information in Exhibit 1 relating to whether Eureka County has access to an off-site location to store gravel (in paragraph 3), Exhibit 1 responds to issues raised in Defendants' Motion, which Plaintiffs should have addressed in their opposition. (ECF No. 105 at 2–3.) Exhibit 2 addresses White Pine County's alleged injury with respect to land disposal, but Defendants challenged this type of injury in their initial Motion. (ECF No. 99–2; ECF No. 75 at 26.) The Court agrees with Defendants that Plaintiffs cannot offer Exhibit 2 for the first time in their sur-reply brief.
Plaintiffs do not dispute that Exhibit 6 is not part of the administrative record, nor does it relate to the issue of standing which permits the Court to consider extra-record materials. (ECF No. 104 at 6–7.) Plaintiffs assert that Exhibit 6 is piece of a demonstrative evidence and shows that BLM made substantial changes to the Coates habitat map and that Plaintiffs discussed an identical map in their reply. (Id. ) The Court agrees with Defendants that Exhibit 6 is not part of the administrative record and does not fall within any exception for consideration of extra-record materials. Moreover, it is also new information offered for the first time in Plaintiffs' sur-reply.
The Court declines to strike paragraphs 1 through 3 in Exhibit 1 but will grant Defendant's request to strike the remainder of Exhibit 1 and to strike Exhibits 2 and 6.
The Court agrees with Defendants that the...
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