Wilderness Workshop v. United States Bureau of Land Management
| Decision Date | 08 July 2008 |
| Docket Number | No. 08-1165.,08-1165. |
| Citation | 531 F.3d 1220 |
| Parties | WILDERNESS WORKSHOP; High Country Citizens' Alliance; Western Colorado Congress; Western Slope Environmental Resource Council; Center for Biological Diversity; Board of County Commissioners for Pitkin County, Plaintiffs-Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT; United States Forest Service, Defendants-Appellees. SG Interests I, Ltd., Defendant-Intervenor-Appellee. Colorado Oil and Gas Association; Congress of Racial Equality; Harold Shepherd, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William G. Myers III, Holland & Hart LLP, Boise, ID, filed an amicus curiae brief for the Colorado Oil and Gas Association.
Donald I. Schultz, Schultz & Belcher LLP, Cheyenne, WY, filed an amicus curiae brief for the Congress of Racial Equality.
Harold Shepherd, Pro Se, Moab, UT, filed an amicus curiae brief on his own behalf.
Before BRISCOE, McCONNELL, and TYMKOVICH, Circuit Judges.
Plaintiffs Wilderness Workshop, High Country Citizens' Alliance, Western Colorado Congress, Western Slope Environmental Resource Council, Center for Biological Diversity, and Board of County Commissioners for Pitkin County (Colorado) filed suit challenging a decision by defendants, the United States Bureau of Land Management (BLM) and the United States Forest Service (Forest Service), authorizing defendant/intervenor SG Interests I, Ltd. (SG) to construct, operate, and maintain a natural gas pipeline through roadless national forest land. In connection with their suit, plaintiffs sought and were denied a preliminary injunction by the district court. Plaintiffs have now filed an interlocutory appeal from the district court's order denying their motion for preliminary injunction. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a), we affirm.
In June 2004, SG and its authorized agent, Trigon EPC, sought authorization from the BLM "to construct, operate, and maintain a natural gas pipeline and related facilities on public lands administered by the BLM," and "National Forest System ... lands." App. at 749. The proposed pipeline, referred to as the Bull Mountain Pipeline, "would accommodate anticipated natural gas production from the Bull Mountain Unit in addition to future `common carrier' ... capacity needs that could arise from other existing leased production areas." Id. More specifically, the proposed project would "involve the installation [of] approximately 25.5 miles (approximately 5.5 miles on private land) of 20-inch diameter buried steel natural gas pipeline and related aboveground appurtenances for the purpose of transporting natural gas from the Bull Mountain Unit to the existing Divide Creek Compressor Station for delivery into interstate natural gas pipeline systems and the national energy market." Id. at 750. The proposed project "would also involve the connected action of construction and operation of a four-acre compressor station, natural gas processing facility and associated facilities on private land at the southern end of the pipeline." Id. at 751.
In response to SG's application, the BLM and the Forest Service, via its White River National Forest and Grand Mesa-Uncompahgre and Gunnison National Forests management officials, engaged in a lengthy period of environmental analysis "to analyze and disclose the potential environmental consequences of granting the proposed authorization[ ] ... and a range of reasonable alternatives including a No Action alternative." Id. at 750. The agencies' environmental analysis culminated in the issuance of a final environmental impact statement (FEIS) on November 16, 2007.
Less than two months thereafter, on January 8, 2008, the BLM and the Forest Service issued a Record of Decision (ROD) authorizing the issuance of "a 30-year, 50-foot" right-of-way for the Bull Mountain Pipeline, as well as temporary use permits, to SG. Id. at 750. The 50-foot right-of-way "would be immediately adjacent to and paralleling existing natural gas pipeline [right-of-ways] (Ragged Mountain Pipeline and Rocky Mountain Natural Gas Pipeline) for approximately 10 miles of the total ... 25.5 mile route."1 Id. at 87. "Of the 10 miles paralleling the existing pipeline [right-of-ways], 7.7 miles would be on [National Forest System] lands and 2.3 miles on private lands." Id. "The proposed [right-of-way] would pass through a total of 8.33 miles of Inventoried Roadless Areas (IRAs) on [National Forest Service] lands." Id. at 152. "Approximately 5.66 miles of the 8.33 miles ... within ... IRAs would follow ... the Ragged Mountain Pipeline."2 Id. The temporary use permits issued for the Bull Mountain Pipeline included a "construction [right-of-way] of approximately 100 feet (50 feet additional to permanent [right-of-way])." Id. at 81. As part of the ROD, the Forest Service also "authorize[d] road use permits for construction, reconstruction, use, upgrade, and/or maintenance of [Forest Service] and/or temporary roads needed for access to the pipeline construction [right-of-way]."3 Id. at 750. "Surface disturbance during . . . pipeline construction is estimated to be 390 acres...." Id. at 81.
According to the record on appeal, the Bull Mountain Pipeline will be constructed over a three-year period, with construction activities occurring only between May 1 and October 1 of each year. After construction is completed, the 100-foot construction right-of-way will be rehabilitated and revegetated. However, trees will not be allowed to regrow in the pipeline's permanent 50-foot right-of-way. As for activity on the right-of-way, "[s]urface patrols w[ill] be conducted by pedestrian surveys or horseback as no motorized vehicles w[ill] be allowed on the pipeline [right-of-way] for normal surface patrols." Id. at 150. "Motorized vehicles w[ill] only be authorized on a case-by-case basis in order to access the right-of-way for emergency repair needs with notification provided to [the Forest Service] and/or BLM prior to access." Id.
On March 5, 2008, plaintiffs filed this action alleging that the ROD violates: (1) the Forest Service's 2001 Roadless Area Conservation Rule (Roadless Rule), 66 Fed.Reg. 3272-73 (Jan. 12, 2001); and (2) the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f. In connection with their complaint, plaintiffs sought a preliminary injunction preventing SG from beginning construction of the pipeline. On April 30, 2008, the district court denied plaintiffs' motion for preliminary injunction. Plaintiffs have now filed an interlocutory appeal seeking review of the district court's denial of their motion for preliminary injunction.
Standard of review
We review the district court's denial of plaintiffs' motion for preliminary injunction for abuse of discretion. See Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1065 (10th Cir.2001). "An abuse of discretion occurs only when the trial court bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling." Id. (internal quotation marks omitted).
"To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harms that the preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir.2007). "[B]ecause a preliminary injunction is an extraordinary remedy, the [movant's] right to relief must be clear and unequivocal." Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir.2004) (internal quotation marks omitted).
Substantial likelihood of success
In analyzing the "substantial likelihood of success" factor, we must, because neither the Roadless Rule nor NEPA provide for a private right of action, review the defendants' approval of the Bull Mountain Pipeline as a final agency action under the Administrative Procedures Act (APA). Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007). Under that standard, we will not overturn the defendants' decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id.; 5 U.S.C. § 706(2)(A). "An agency's decision will be deemed arbitrary and capricious if the agency ... entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Troyer, 479 F.3d at 1280 (internal quotation marks omitted). "Likewise, an agency's decision will be deemed arbitrary and capricious if the agency failed to base its decision on consideration of the relevant factors, or if there has been a clear error of judgment on the agency's part." Id. (internal quotation marks omitted).
Plaintiffs claim that the defendants' authorization of the Bull Mountain Pipeline project violated the Forest Service's Roadless Rule. In Wyoming v. U.S. Department of Agriculture, 414 F.3d 1207 (...
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