Wilderness Soc., Cen. for Nat. Ecosysts. v. Wisely
| Decision Date | 06 August 2007 |
| Docket Number | Civil Action No. 06-cv-00296-MSK-MEH. |
| Citation | 524 F.Supp.2d 1285 |
| Parties | The WILDERNESS SOCIETY, CENTER FOR NATIVE ECOSYSTEMS, Colorado Environmental Coalition, Colorado Mountain Club, and Sierra Club, Plaintiffs, v. Sally WISELY, State Director of the Bureau of Land Management, United States Bureau of Land Management, Mitch King, Acting Regional Director of the U.S. Fish and Wildlife Service, United States Fish and. Wildlife Service, Defendants. |
| Court | U.S. District Court — District of Colorado |
Keith Gordon Bauerle, Andrew Evans Hartsig, Earthjustice Legal Defense Fund, Neil Levine, Neil Levine Law Offices, Denver, CO, for Plaintiffs.
Robert Pendleton Williams, U.S. Department of Justice, Washington, DC, Stephen D. Taylor, U.S. Attorney's Office, Denver, CO, for Defendants.
THIS MATTER comes before the Court pursuant to proposed Intervenor Williams Production RMT Co.'s ("Williams") Renewed Motion to Intervene (# 40), the Plaintiffs' response (# 46), and Williams' reply (# 48); the Plaintiffs' Unopposed Motion to Seal (# 41) certain exhibits in support of the Plaintiffs' Motion to Supplement the Administrative Record; the Plaintiffs' Motion to Supplement the Administrative Record (# 43, as supplemented # 54), the Defendants' response (# 47), and the Plaintiffs' reply (# 55); the Plaintiffs' Unopposed Motion for Leave to File the Administrative Record Conventionally (# 59); the Plaintiffs' Motion for Review of Agency Action (# 61), the Defendants' response (# 72), Williams' response (# 71), and the Plaintiffs' reply (# 76)1; and the Plaintiffs' Unopposed Motion for Leave to File an Overlength Brief (# 75).
This action concerns a parcel of land approximately two miles west of DeBeque, Colorado, known as the South Shale Ridge (sometimes "the Ridge"). The Ridge is an irregularly-shaped parcel extending approximately 15 miles in a predominantly east-west orientation, approximately seven miles wide at its largest bulge, and perhaps two miles wide at its narrowest. All told, the South Shale Ridge encompasses more than 32,000 acres of land. The entirety of the Ridge is federal property, under the stewardship of the United States Bureau of Land Management ("the BLM").
In 1980, the BLM inventoried its lands to determine whether any areas should be designated as Wilderness Study Areas ("WSAs") under Section 603 of the Federal Land Policy Management Act ("FLPMA"), 43 U.S.C. § 1782.2 With regard to the South Shale Ridge, the BLM found that it "retains its primeval character with only minor imprints of man" and had "outstanding scenery," but nevertheless found the area unsuitable for potential wilderness designation due to its lack of opportunities for solitude and recreation, owing to the lack of sight-obscuring vegetation and confining topography. BLM 113.3
In the mid-1980s, the BLM drafted a comprehensive Resource Management Plan (sometimes "the Plan" or "the 1987 Plan") for the geographic region encompassing the South Shale Ridge. The Plan was intended to identify the major resources and characteristics of the area, and to identify the particular management priorities (e.g. recreation, mining, wildlife management, etc.) that the BLM would emphasize for each piece of land within the region. Although the Plan noted the need for various conservation efforts to protect the natural setting and the scenic and geologic features of the South Shale Ridge, it ultimately concluded that the BLM's primary management emphasis for the Ridge should be on leasing the land for energy development (e.g. oil, gas, and coal). BLM 746-47. As a result, by 1992, the BLM had leased the entire South Shale Ridge for oil and gas development. As of 2005, 30 leases remained active, encompassing 11,000 acres of the parcel.4 BLM 1244.
In 1994, several groups, including some of the Plaintiffs here, presented a comprehensive proposal to the BLM, suggesting, among other things, that the entire South Shale Ridge be designated as a WSA. In 1997, the BLM undertook a review of the proposal, sometimes referred to in the record as a "wilderness inventory." The results of that study, released in 2001,5 concluded that the majority of the area, approximately 27, 631 acres, retained its natural character; that four areas within the parcel, amounting to approximately 4,800 acres, were "unnatural in appearance due to the presence of gas wells and their associated structures"; that the bulk of the area offered outstanding opportunities for seeking solitude or recreation; and that it contained important ecological features, including the presence of several species of plants recognized as threatened or sensitive.6 BLM 953-55. Based on the 2001 findings, the BLM contemplated revisiting the 1987 Resource Management Plan to consider whether the Plan should be amended to change the management priorities for the South Shale Ridge from energy development to conservation. While it considered whether such a change was necessary and appropriate, the BLM suspended all new leasing activities in the Ridge. BLM 855.
Meanwhile, in 1996, the State of Utah sued the BLM, seeking to stop the BLM's consideration of whether to designate lands in that state as WSAs. The crux of the Utah lawsuit was an allegation that the BLM's statutory authority to designate WSAs had expired in 1993, at the conclusion of FLPMA's 15-year wilderness-designation program. See generally Utah v. Norton, 2006 WL 2711798 at *1, 4 (D.Utah 2006) (slip copy). In 2003, the BLM and Utah entered into a settlement of the dispute ("the Utah Settlement"), in which the BLM agreed that its authority to conduct wilderness reviews had expired in 1993, and that thereafter, it lacked the authority to designate new WSAs. Id. In September 2003, the ELM issued directives to its field offices implementing the terms of the Utah Settlement. Specifically, the BLM advised the field offices that although they could no longer designate lands as WSAs and impose the strict non-impairment standard that accompanies such a designation, the BLM could continue to inventory lands for wilderness characteristics and employ other elements of the land-use planning process to "manage them using special protections to protect wilderness characteristics." BLM 971-73.
In 2004, energy companies requested that the BLM reopen oil and gas leasing in the Ridge. In response to those requests, the BLM observed that the 1987 Plan emphasizing energy development priorities had never been reconciled with the 2001 findings that the South Shale Ridge had significant wilderness characteristics. The BLM embarked upon a decision-making process to address "the extent to which this information, especially the [2001 wilderness inventory], presents potential environmental consequences from oil and gas leasing that were not analyzed in the [1987 Plan]." BLM 1241. Specifically, the BLM sought to determine "whether the new information is sufficient to show that oil and gas leasing in South Shale Ridge will affect the quality of the natural and human environment in a significant manner or to a significant extent not already considered in the [1987 Plan]." Id.
In July 2004, the BLM issued a draft Environmental Assessment ("EA"), addressing two alternatives: (i) the "proposed action," namely, "to make the South Shale Ridge area available for oil and gas leasing"; and (ii) an alternative permitting the leasing of lands to resume, but subjecting all such new leases to a "no surface occupancy" restriction (i.e. requiring that access to stores of oil and gas under the Ridge be obtained only by means of angled drilling from wells located outside the Ridge's boundaries).7 BLM 1051-1080.
The BLM circulated the July 2004 draft EA and reviewed a number of internal and external comments on it. In April 2005, the BLM issued a revised draft EA. BLM 1155-1196. Like the July 2004 draft EA, the April 2005 draft also addressed two alternatives, but replaced the "no surface occupancy" alternative with a straightforward "no action" alternative that the BLM had declined to consider in July 2004. BLM 1158. As a result, the April 2005 EA did not expressly purport to consider the effects of permitting drilling subject to "no surface occupancy" restrictions.
On September 26, 2005, after another round of public comment, the BLM issued the final version of its EA. BLM 1241-1282. Like the April 2005 draft, the final EA addressed two alternatives: (i) making the South Shale Ridge available for oil and gas leasing; or (ii) the "no action" alternative of continuing the current policy deferring any new oil and gas leases. Accompanying the final. EA was the BLM's Finding of No Significant Impact ("FONSI"). BLM 1276-1280. Specifically, the BLM found that "Some minor and short-term impacts to air, water, [and] soil can be expected" from resuming oil and gas leasing, but that "these impacts would be localized and insignificant." BLM 1276. The BLM also found that "Long-term, minor impacts to wildlife, air quality, visual resources and noise are also possible," but that "stipulations and mitigation measures placed as Conditions of Approval will serve to insure these impacts are minimized to the greatest extent possible." Id. Thus, the BLM concluded that oil and gas leases in the Ridge could "be offered for sale." BLM 1276.
On the day it issued the final EA and FONSI, the BLM also issued a Notice of Competitive Lease Sale. BLM 1739. The Notice advised interested parties that energy development leases would be offered on 78 parcels around Colorado, including 16 within the boundaries of the South Shale Ridge. The Notice advised potential bidders of particular protective stipulations and restrictions that would attach...
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