WildEarth Guardians v. U.S. Bureau of Land Mgmt.

• Decision Date: 01 May 2020
• Docket Number: CV-18-73-GF-BMM
• Citation: 457 F.Supp.3d 880
• Parties: WILDEARTH GUARDIANS, Montana Environmental Information Center, David Kats, Bonnie Martinell, and Jack Martinell, Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of the Interior, David Bernhardt, in his official capacity as Secretary of the United States Department of the Interior, Donato Judice, in his official capacity as Montana Bureau of Land Management Deputy State Director, Defendants.
• Court: U.S. District Court — District of Montana

457 F.Supp.3d 880

WILDEARTH GUARDIANS, Montana Environmental Information Center, David Kats, Bonnie Martinell, and Jack Martinell, Plaintiffs,

v.U.S. BUREAU OF LAND MANAGEMENT, an agency within the U.S. Department of the Interior, David Bernhardt, in his official capacity as Secretary of the United States Department of the Interior, Donato Judice, in his official capacity as Montana Bureau of Land Management Deputy State Director, Defendants.

CV-18-73-GF-BMM

United States District Court, D. Montana.

Signed May 1, 2020

Elizabeth B. Forsyth, Pro Hac Vice, Earthjustice, Los Angeles, CA, Kyle Tisdel, Pro Hac Vice, Western Environmental Law Center, Taos, NM, Shiloh Silvan Hernandez, Laura King, Western Environmental Law Center, Helena, MT, Joel Minor, Pro Hac Vice, Earthjustice, Denver, CO, for Plaintiffs.

Luther L. Hajek, U.S. Department of Justice, Denver, CO, Rebecca J. Jaffe, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER

Brian Morris, Chief District Judge United States District Court

INTRODUCTION

Plaintiffs Wildearth Guardians, et al. (collectively "Wildearth") allege that Defendants U.S. Bureau of Land Management's, et al. (collectively "BLM") failed to consider risks to Montana's environment and water supply before issuing 287 oil and gas leases covering 145,063 acres in December 2017 and March 2018 lease sales. (Doc. 25-1 at 1). Wildearth specifically brings four claims under the National Environmental Policy Act ("NEPA"). First, Wildearth alleges that BLM failed to consider the impacts from issuing oil and gas leases on Montana's groundwater from shallow fracturing and surface casing depth. (Id. at 26.) Wildearth also alleges that BLM failed to consider reasonable alternatives that would lessen the impacts to Montana's groundwater supply. (Id. at 35.) Wildearth next alleges that BLM failed to consider the combined impacts on climate of the lease sales as a whole. (Id. at 21.) Wildearth alleges finally that BLM improperly determined that the leases would not significantly impact Montana's environment. (Id. at 39.)

STATUTORY AND REGULATORY BACKGROUND

Summary Judgment

A court should grant summary judgment where the movant demonstrates that no genuine dispute exists "as to any material fact" and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment remains appropriate for resolving a challenge to a federal agency's actions when review will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest Serv. , 469 F.3d 768, 778 (9th Cir. 2006).

The Administrative Procedure Act

Courts review agency NEPA decisions under the Administrative Procedure Act ("APA"). Barnes v. Fed. Aviation Admin. , 865 F.3d 1266, 1269 (9th Cir. 2017). The APA instructs a reviewing court to "hold unlawful and set aside" agency action deemed "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) ; see Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin. , 538 F.3d 1172, 1194 (9th Cir. 2008). Courts should only uphold agency actions under this standard when a rational connection exists between the facts found and the conclusions made in support of the agency's action. W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 481 (9th Cir. 2011).

NEPA

NEPA serves as the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). NEPA applies when agencies undertake "new proposed ‘major Federal action[s].’ " Ctr. for Biological Diversity v. Salazar , 706 F.3d 1085, 1094 (9th Cir. 2013). NEPA protects the environment by requiring federal agencies to "take a ‘hard look’ at environmental consequences" of their decision-making. Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (quoting Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) ). The statute "does not mandate particular results." Id. NEPA instead "prescribes the necessary process" that agencies must follow to identify and evaluate "adverse environmental effects of the proposed action." Id.

This necessary process requires agencies to prepare a "detailed statement." 42 U.S.C. § 4332(C). The statement may take different forms. All "major Federal actions significantly affecting the quality of the human environment" require the agency to prepare an environmental impact statement ("EIS"). California ex rel. Lockyer v. U.S. Dep't of Agric. , 575 F.3d 999, 1012 (9th Cir. 2009) (quoting 42 U.S.C. § 4332(C) ). An EIS must include a "full and fair discussion" of the effects of the proposed action, including those on the "affected region, the affected interests, and the locality." 40 C.F.R. §§ 1502.1, 1508.27(a).

NEPA does not always require an EIS to ensure that an agency has taken a "hard look" at potential environmental impacts. Lockyer , 575 F.3d at 1012. An agency may comply with NEPA through the preparation of the following documents and accompanying analysis: (1) a less extensive EA and a finding of no significant impact on the environment ("FONSI"); see 40 C.F.R. § 1508.9 ; or (2) a categorical exclusion and finding that the action does not individually or cumulatively have a significant effect on the human environment, see 40 C.F.R. § 1508.4.

An agency must consider certain issues regardless of what form the detailed statement takes. These issues include, among others, all "direct," "indirect," and cumulative impacts from an action. 40 C.F.R. § 1502.16 ; see 40 C.F.R. § 1508.7. Agencies also must consider "alternatives to the proposed action." 42 U.S.C. § 4332(C)(iii).

MLA and FLPMA

NEPA applies to many decisions that agencies make when carrying out the Mineral Leasing Act ("MLA") and Federal Land Policy and Management Act ("FLPMA"). The MLA and FLPMA govern BLM's management of oil and gas drilling on public lands. BLM follows a three-stage process to manage oil and gas leasing. See N.M. ex rel. Richardson v. BLM , 565 F.3d 683, 689 n.1 (10th Cir. 2009)

Resource Management Plan ("RMP") Stage: BLM prepares an RMP, which operates similar to a zoning plan, to define the allowable uses of public lands within the planning area. See 43 U.S.C. § 1712. BLM determines at the RMP stage what areas to make open for oil and gas leasing and under what conditions. See 43 U.S.C. § 1712(a). BLM prepares an EIS during the RMP stage that evaluates the expected impact of potential land management decisions made in that plan, including oil and gas development. See Richardson , 565 F.3d at 692, 703.

Expression of Interest ("EOI") Stage: After lands have been designated as open or closed for oil and gas development at the RMP stage, companies may submit EOIs to nominate specific parcels of land for inclusion in an oil and gas lease sale. BLM makes the lands available through a competitive leasing process if BLM determines the lands to be eligible. 43 U.S.C. § 3120.1-1.

Application for Permit to Drill Stage ("APD"): The third stage involves a lessees' submission of applications for permits to drill and BLM's issuance of the leases. BLM's issuance of a lease constitutes "an irretrievable commitment of resources." See 43 C.F.R. § 3162.3-1(c).

Factual Background

Wildearth's challenge involves two lease sales in Montana – the December 2017 lease sale and the March 2018 lease sale. These lease sales involved four planning areas: HiLine, Billings, Butte, and Miles City. The March 2018 lease sale covered parcels in the Billings, Butte, and Miles City planning areas. Each BLM field office that corresponds to those planning areas prepared an EA and FONSI for only the parcels of land in their area. The December 2017 lease sale offered parcels that fell exclusively in the Miles City planning area.

All four EAs examined two alternatives: (1) no action, and (2) the proposed action of offering the leases for sale. Each of the lease sales "tiered" to the RMP and accompanying EIS. BLM approved the lease sales. BLM concluded that the lease sales comported with the relevant RMPs, national policy, and statutory requirements. BLM determined that the EAs set forth stipulations and lease notices designed to avoid or minimize impacts to resources. Wildearth challenges the lease sales on the grounds that the lease sales fail to comply with NEPA.

ANALYSIS

I. BLM must discuss groundwater impacts with greater specificity.

NEPA's "hard look" obligation requires agencies to consider potential environmental impacts, including "all foreseeable direct and indirect impacts," and "should involve a discussion of adverse impacts that does not improperly minimize negative side effects." N. Alaska Envtl. Ctr. v. Kempthorne , 457 F.3d 969, 975 (9th Cir. 2006) (quoting Idaho Sporting Congress, Inc. v. Rittenhouse , 305 F.3d 957, 973 (9th Cir. 2002) ). Whether an impact is "reasonably foreseeable" depends on whether there exists a "reasonably close causal relationship" between the agency's action and the environmental impact. Ctr. for Biological Diversity v. BLM , 937 F. Supp. 2d 1140, 1155 (N.D. Cal. 2013).

Neither BLM nor Wildearth dispute that BLM had an obligation to consider the impacts to groundwater from shallow fracturing and surface casing depth. Wildearth correctly points out that BLM had substantial evidence before it that showed (1) there was a potential risk to drinking water from a failure to extend surface casing below drinking water sources, and (2) there was a potential risk to groundwater from shallow hydraulic fracturing. (See Doc. 25-1 at 27-28.) This evidence and Wildearth's protest triggered NEPA's hard look requirement for BLM. Kempthorne , 457 F.3d at 975.

BLM claims that it took a hard look at both of Wildearth's complaints. BLM walks through all the places in the various EAs where it addressed Wildearth's complaints. Many of the citations on which BLM relies prove irrelevant to Wildearth's specific complaints. For example, BLM spends nearly three pages of its cross-motion for summary...