Ozark Society v. United States Forest Service et al

Filing 77

ORDER granting in part and denying in part defendants' 30 motion to dismiss. The Court dismisses OWL's claims regarding the Lake and OS's WSRA and Energy Policy Act Claims. OWL and OS's remaining claims survive defendants ' motion to dismiss. The parties are directed to file status report within 14 days of the date of this Order. The Court will enter a scheduling order following and based upon the parties' status reports. Signed by Judge Kristine G. Baker on 10/06/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
OUACHITA WATCH LEAGUE, et al.
v.

PLAINTIFFS

Case No. 4:11-cv-00425 KGB

JUDITH L. HENRY, et al.

DEFENDANTS
*******************

THE OZARK SOCIETY
v.

PLAINTIFF
Case No. 4:11-cv-00782 KGB

THE UNITED STATES FOREST SERVICE, et al.

DEFENDANTS

ORDER
In the above consolidated cases, the Ouachita Watch League et al. (collectively, “OWL”)
and the Ozark Society (“OS”) each challenge the United States Forest Service (“Forest Service”),
Bureau of Land Management (“BLM”), and other federal defendants’ management of natural gas
resources on the Ozark-St. Francis National Forest (the “Forest”) and Greers Ferry Lake (the
“Lake”). Prior to consolidation, the defendants filed separate motions to dismiss for lack of
jurisdiction and failure to state a claim upon which relief may be granted in each of the cases
(Ouachita Watch League v. Henry (OWL), 4:11-cv-00425 KGB, Dkt. No. 20; Ozark Society v.
U.S. Forest Serv. (OS), 4:11-cv-00782 KGB, Dkt. No. 30). Following consolidation, the Court
ordered the parties to complete the briefing on defendants’ motions to dismiss (OWL, Dkt. No.
53; OS, Dkt. No. 72). All parties have filed several briefs regarding the motions (OWL, Dkt.
Nos. 63, 64, 65, 66; OS, Dkt. Nos. 41, 56). For the reasons below, the Court grants in part and
denies in part defendants’ motions to dismiss.

I.

Factual Background

The Forest Service issued the first Land and Resource Management Plan (“LRMP” or
“Plan”) for the Forest in 1986. In 2005, after completing a new environmental impact statement
(“EIS”), the Forest Service issued a revised LRMP intended to govern the Forest through 2015.
The 2005 LRMP determined which lands would be available for oil and gas leasing in the Forest
and the stipulations that would apply.
At the time the 2005 LRMP was completed, a 2004 Reasonably Foreseeable
Development Scenario (“RFDS”), prepared by the BLM, estimated that 10 to 15 new wells
might be drilled in the Forest over the next 10-year period. In 2007, apparently due to increased
development activity and interest in the Forest, the Forest supervisor requested an updated RFDS
from the BLM. In 2008, the BLM issued a new RFDS predicting the potential for 1,730 wells in
the Forest.
In 2010, the Forest Service prepared a Changed Conditions Analysis (“CCA”) and a
Supplemental Information Report (“SIR”) analyzing the relevance of the 2008 RFDS’s
prediction. In the SIR, the Forest supervisor found that “the existing plan direction is adequate to
address the effects anticipated from the new RFD[S], and that a correction, supplement, or
revision to the Revised Forest Plan’s Final Environmental Impact Statement will not be
necessary” (OWL, Dkt. No. 1-1, at 34).
The Lake is a water project located on the Little Red River in central Arkansas. The U.S.
Army Corps of Engineers (“Corps”) operates the water project and owns some mineral rights
underneath the Lake, which allows the BLM to consider including Corps-owned parcels in future
mineral lease sales, subject to stipulations and restrictions the Corps might demand.

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II.

Legal Standard

Defendants argue that OWL and OS’s claims must be dismissed either for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or for failure to state a claim upon
which relief may be granted under Rule 12(b)(6). A motion to dismiss under Rule 12(b)(1)
challenges the Court’s subject matter jurisdiction to hear the case. A court has broad authority to
decide its own right to hear a case, and it can consider matters outside of the pleadings when
deciding a “factual attack” under Rule 12(b)(1). Osborn v. United States, 918 F.2d 724, 729 n.6
(8th Cir. 1990); see Ozark Society v. Melcher, 229 F. Supp. 2d 896, 902 (E.D. Ark. 2002)
(explaining that a “factual attack” challenges the existence of subject matter jurisdiction in fact,
irrespective of the pleadings). Further, when the defendant makes a “factual attack,” it is the
plaintiff’s burden to establish that jurisdiction exists, and “no presumptive truthfulness attaches
to the plaintiff’s allegations.” Osburn, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). In other words, the non-moving party does not
have the benefit of Rule 12(b)(6) safeguards in a factual attack. Id. at 729 n.6.
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

3

(alteration in original) (citations omitted). “When ruling on a motion to dismiss [under Rule
12(b)(6)], the district court must accept the allegations contained in the complaint as true and all
reasonable inferences from the complaint must be drawn in favor of the nonmoving party.”
Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001).
Because the Court determines below that, based on the circumstances and controlling
law, defendants only make arguments under Rule 12(b)(6), the Court applies the 12(b)(6)
standard to the entirety of defendants’ motions to dismiss. Despite previously denying the
motions to dismiss without prejudice so that the administrative record could be completed
because it appeared that defendants had made arguments under Rule 12(b)(1) (OWL, Dkt. No.
50; OS, Dkt. No. 70), to resolve the pending motions, the Court only considers the pleadings and
factual allegations contained therein, accepts those factual allegations as true, and draws all
reasonable inferences from the complaints in favor of OWL and OS. The Court declines to
convert defendants’ motions to dismiss into motions for summary judgment under Federal Rule
of Civil Procedure 12(d). See Gorog v. Best Buy Co., Inc., 760 F.3d 787, 791 (8th Cir. 2014) (“A
district court does not convert a motion to dismiss into a motion for summary judgment when,
for example, it does not rely upon matters outside the pleadings in granting the motion.”).
III.

Analysis

OWL alleges in its complaint that the defendants’ management of natural gas resources
on the Forest and Lake violate the National Environmental Policy Act (“NEPA”), 42 U.S.C. §
4321 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., the
Federal Land Policy and Forest Management Act (“FLPMA”), 16 U.S.C. § 1701 et seq., and the
Mineral Leasing Act, 30 U.S.C. § 181 et seq., as well as corresponding federal regulations. OS’s

4

similar allegations are based on NEPA, NFMA, the Wild and Scenic Rivers Act (“WSRA”), 16
U.S.C. § 1271, et seq., and the Energy Policy Act, 42 U.S.C. § 15942(b)(3).
Because the statutes on which OWL and OS base their claims do not provide a right of
action or a waiver of sovereign immunity, OWL and OS must rely on the right of action and
waiver provided by the Administrative Procedure Act (“APA”), 5 U.S.C. § 501 et seq. Sierra
Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808, 813 (8th Cir. 2006). The APA authorizes suit
by “[a] person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. The APA
defines “agency action” to include “the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13).
A.

OWL’s Claims Regarding The Lake

Defendants contend that the Court lacks jurisdiction over OWL’s claims regarding the
Lake because they are either moot or unripe (OWL, Dkt. No. 20, at 14-16). In its response to
defendants’ motion to dismiss, OWL states that, having achieved its goals, there is no further
action to be taken in this case regarding the Lake (OWL, Dkt. No. 63, at 21-23). Accordingly,
the Court dismisses OWL’s claims regarding the Lake.
B.

OWL’s NEPA Claims Under APA § 706(1)

Section 706(1) of the APA allows a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed
only where a plaintiff asserts that an agency failed to take a discrete agency action that it is
required to take.” Norton v. S. Utah Wilderness Alliance (SUWA), 542 U.S. 55, 64 (2004).
Defendants contend that OWL failed to state a NEPA claim under § 706(1) because OWL fails

5

to identify an agency action that defendants were required to take. Because this is a Rule
12(b)(6) argument, the Court will analyze it under that standard.
NEPA requires any federal agency proposing “major Federal actions significantly
affecting the quality of the human environment” to prepare an EIS analyzing the potential
impacts of the proposed action and possible alternatives. SUWA, 542 U.S. at 72. In certain
circumstances an EIS must be supplemented. Id. Specifically, a regulation of the Council on
Environmental Quality (“CEQ”) requires supplementation where “[t]here are significant new
circumstances or information relevant to environmental concerns and bearing on the proposed
action or its impacts.” Id. (quoting 40 C.F.R. § 1502.9(c)(1)(ii)). The Supreme Court has
interpreted NEPA in light of this CEQ regulation as requiring an agency to take a “hard look” at
the new information to assess whether supplementation might be necessary. Id. at 72-73 (citing
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 385 (1989)). However, the Supreme Court
also has held that, under this statute and regulation, “supplementation is necessary only if there
remains major Federal actio[n] to occur, as that term is used in [NEPA].” Id. at 73 (alteration in
original) (quoting Marsh, 490 U.S. at 374) (internal quotation marks omitted).
To put this framework in the context present here, the Forest Service issues a forest plan
and “programmatic” EIS for each national forest. Sierra Club v. Robertson, 784 F. Supp. 593,
602 (W.D. Ark. 1991); see 16 U.S.C. § 1604(a). Accordingly, a well-prepared programmatic
EIS for a national forest obviates the need for a subsequent site- and project-specific EIS unless
new and significant environmental impacts arise which were not evaluated within the
programmatic EIS. Robertson, 784 F. Supp. at 602-03 (quoting Minn. Pub. Interest Research
Grp. v. Butz, 498 F.2d 1314, 1323 n. 29 (8th Cir. 1974) (en banc)); see 42 U.S.C. § 15942.

6

OWL complains of the Forest Service’s alleged failure to take a “hard look” at the
changed circumstances as discussed in the CCA and the SIR and failure to supplement the 2005
EIS.1 Defendants admit that supplementing an EIS is a discrete agency action but argue that
NEPA did not require supplementation of the EIS here because there did not remain “major
Federal action” to occur.
Defendants cite SUWA in support of their argument. In SUWA, the plaintiff argued that
evidence of increased off-road vehicle use is “significant new circumstances or information” that
requires a “hard look” and a supplemental EIS for the corresponding land use plan. SUWA, 542
U.S. at 73. The Supreme Court described the land use plan at issue, which was issued by the
BLM to balance wilderness protection against other uses, as “designed to guide and control
future management actions” and to “describe[] for a particular area, allowable uses, goals for
future condition of the land, and specific next steps.” Id. at 59 (citations omitted). The BLM,
through the land use plan, permitted off-road vehicle use in certain areas. Id. at 65. The Court
held that, although approval of a land use plan is a “major Federal action” requiring an EIS, that
action is completed when the plan is approved. Id. at 73 (citing 43 C.F.R. § 1601.0-6 (stating
that approval of a land use plan is a “major Federal action”)). Accordingly, because the land use
plan had been approved in SUWA, there remained no ongoing “major Federal action” to occur
that could require supplementation, unless the BLM amended or revised the land use plan. Id.
OWL responds that SUWA is distinguishable because, although the completed approval
of the 2005 LRMP does not constitute a remaining “major Federal action” to occur, ongoing

1

OS states that its challenge is to a “final agency action” pursuant to § 706(2)(A), not an
action to compel agency action under § 706(1) (OS, Dkt. No. 41, at 13). To the extent that OS
intends to bring a § 706(1) claim, it presumably would be subject to the same analysis as OWL’s
§ 706(1) claim. To the extent OS brings a § 706(2)(A) claim, those allegations are examined in
section III.C. of this Order.
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“management activities” do constitute remaining major federal actions to occur that are governed
by the 2005 LRMP, which in turn was based on the 2005 EIS. These ongoing management
activities include, as alleged in OWL’s complaint, defendants’ alleged continuing issuance and
approval of oil and gas leases and permits in the parts of the Forest that the 2005 LRMP
designates for such exploration. Specifically, the BLM may issue oil and gas leases to national
forest lands designated for such use by the Forest Service. 30 U.S.C. § 226(h). Whether a
designated tract of land will be leased is left to the broad discretion of the Secretary of the
Interior, acting through the BLM. See Udall v. Tallman, 380 U.S. 1, 4 (1965); 30 U.S.C. §
226(a) (“All lands subject to disposition under this chapter which are known or believed to
contain oil or gas deposits may be leased by the Secretary.” (emphasis added)). After obtaining a
lease, a lessee also must file for each well site an application for permit to drill (“APD”) that
contains a surface-use plan of operations (“SUPO”). 43 C.F.R. § 3162.3-1(d)(2). The Forest
Service must approve the SUPO before the BLM can approve the APD. Id. § 3162-3-1(h); see
36 C.F.R. § 228.107. Accordingly, the BLM may not issue a lease over the objection of the
Forest Service. 30 U.S.C. § 226(h). Conversely, the last action taken by the BLM in SUWA was
approval of the land use plan that identified areas where off-road vehicle use was allowable. It
appears that no further BLM action contributed to the off-road vehicle use at issue in SUWA.
CEQ Regulations provide that major federal actions include non-federal actions “with
effects that may be major and which are potentially subject to Federal control and
responsibility.” 40 C.F.R. § 1508.18. “Projects include actions approved by permit or other
regulatory decision as well as federal and federally assisted activities.” Id. § 1508.18(b)(4). The
NEPA regulations contemplate EISs, and thus the existence of major federal action, for “broad
Federal actions.” Id. at 1502.4(b); see Minn. Pub. Interest Research Grp., 498 F.2d at 1322

8

(holding that Forest Service’s involvement in many individual timber sales constitutes major
federal action because “the effect of many Federal decisions about a project . . . can be
individually limited but cumulatively considerable” (citation omitted)).
The Eighth Circuit has outlined the analysis for determining whether non-federal action
constitutes major federal action:

(1) whether the agency exercises legal control over the

allegedly non-federal action or project, which depends on whether federal action is a legal
condition precedent to the entire project; (2) whether the agency exercises sufficient factual
control over the project; and, most importantly, (3) whether the agency has discretion in carrying
out or approving the proposed project. Goos v. ICC, 911 F.2d 1283, 1294-97 (8th Cir. 1990); see
Sharps v. U.S. Forest Service, 823 F. Supp. 668, 676 (D.S.D. 1993). Essentially, major federal
action occurs when a federal agency “has discretion in its ‘enabling’ decision to consider
environmental consequences and that decision forms the legal predicate for another party’s
impact on the environment.” Goos, 911 F.2d at 1295 (citation omitted).
Based on the case law above and the pleadings filed by the parties, the Court can
reasonably infer that defendants’ alleged continuing issuance and approval of oil and gas leases
and permits in the Forest, as stated in OWL’s complaint, constitutes “major Federal action.” See
Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1227 (9th Cir. 1988) (holding that BLM and
other agencies were required to prepare EIS before issuing oil and gas leases that did not
absolutely prohibit surface disturbance in designated wilderness of national forest); Sierra Club
v. Peterson, 717 F.2d 1409, 1412-13 (D.C. Cir. 1983) (scrutinizing under NEPA agency’s
FONSI determining that EIS was not required for granting certain oil and gas leases); see also
Minn. Pub. Interest Research, 498 F.2d at 1322-23 (holding that the Forest Service’s sale of
timber from national forests constitutes major federal action).

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The BLM and Forest Service exercise legal control over the issuance and approval of oil
and gas leases and permits because their roles in the issuance of a lease and approval of an APD
and SUPA are condition precedents to the entirety of an oil and gas project on national forest
land. They also exercise discretion in fulfilling these roles. Accordingly, their roles are not
essentially ministerial, and this Court may reasonably infer that, based on the factual allegations
in OWL’s complaint, there remains major federal actions to occur under the 2005 LRMP, which
amounts to the first step in any oil and gas project in the Forest. See Goos, 911 F.2d at 1295-96.
Even if the Forest Service has given up its authority to reject individual SUPOs in the 2005
LRMP, which is not entirely clear from OWL’s allegations in the complaint, the BLM’s role, as
alleged in OWL’s complaint, still constitutes federal major actions. See Wyo. Outdoor Council
v. U.S. Forest Serv., 165 F.3d 43, 49 (D.C. Cir. 1999) (reiterating that “[i]f the [Forest Service]
chooses not to retain authority to preclude all surface disturbing activities, an EIS must be
prepared when the leases are issued” (alterations in original) (citation omitted) (internal
quotation marks omitted)).
In sum, to state a claim under § 706(1), a plaintiff must allege facts allowing the Court to
infer reasonably that an agency failed to take discrete agency action that it is required to take.
SUWA, 542 U.S. at 64. For the reasons explained above, OWL alleges facts in its complaint that,
taken as true and viewed in the light most favorable to OWL, allow this Court to infer that
defendants failed to take a discrete agency action—supplementing the 2005 EIS—that
defendants are required to take under NEPA. This is because the 2008 RFDS and 2010 CCA
presented “significant new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impact” and there remained major federal action to occur:
defendants’ alleged continuing issuance and approval of oil and gas leases and permits in the

10

Forest, as stated in OWL’s complaint. Id. at 72-73. Accordingly, the Court determines that
OWL states a NEPA claim under § 706(1) upon which relief may be granted.
C.

OWL And OS’s NEPA Claims Under APA § 706(2)

Section 706(2) of the APA allows a court to hold unlawful and set aside certain agency
actions, findings, and conclusions. 5 U.S.C. § 706(2). Section 704 of the APA limits judicial
review to “final agency action for which there is no other adequate remedy in a court.”2 Id. §
704; see SUWA, 542 U.S. at 61-62 (“Where no other statute provides a private right of action, the
‘agency action’ complained of must be ‘final agency action.’”). Defendants contend that OWL
and OS’s § 706(2) NEPA claims fail because OWL and OS have not identified a final agency
action but instead allege only broad “programmatic” challenges. See Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 891 (1990) (holding that a plaintiff cannot challenge an agency’s entire
program for wholesale correction but instead “must direct its attack against some particular
‘agency action’ that causes it harm”); Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d at 813
(“A broad agency program is not a final agency action within the meaning of 5 U.S.C. § 704.”).
Defendants appear to argue, at least initially, that this is a Rule 12(b)(1) argument and
that the Court should analyze it under that standard. To the extent that defendants make this
argument, the Court disagrees.

The Eighth Circuit has held that “[t]he APA is not an

2

Courts have different views on how the finality requirement applies to § 706(1)
challenges. Compare Ligon Specialized Hauler v. Interstate Commerce Comm’n, 587 F.2d 304,
314 (6th Cir. 1978) (concluding that agency delay “must at some point be judicially reviewable if
Section 706(1) is to have effect” and that “[t]hat point is reached . . . where the decision to delay
or withhold action has become concrete” such that it becomes final), with Independence Mining
Co., Inc. v. Babbitt, 105 F.3d 502, 511 (9th Cir. 1997) (“Judicial review of an agency’s actions
under § 706(1) for alleged delay has been deemed an exception to the ‘final agency decision’
requirement.”). The Eighth Circuit appears to share the Sixth Circuit’s view. See Kenny v.
Glickman, 96 F.3d 1118, 1122 n.3 (8th Cir. 1996) (“The APA judicial review provisions apply
equally to agency action and agency inaction.”). Regardless, defendants do not challenge
whether the agency inaction about which OWL complains under § 706(1) is final for judicial
review purposes, so the Court need not address this issue.
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independent jurisdictional provision . . . but merely provides the framework for judicial review
of agency action.”

Ochoa v. Holder, 604 F.3d 546, 549 (8th Cir. 2010).

“[T]he APA’s

requirements are part of a party’s cause of action and are not jurisdictional.” Iowa League of
Cities v. EPA, 711 F.3d 844, 863 n.12 (8th Cir. 2013). Accordingly, the Court will analyze this
argument under the Rule 12(b)(6) standard.
OWL agrees, and OS appears to agree, that a broad agency program is not a final agency
action. OWL responds that it does not bring a programmatic challenge but instead brings a
challenge to the 2010 SIR, which it argues constitutes a final agency action challengeable under
§ 706(2). OS responds that it has identified three types of final agency actions: the 2010 SIR,
the resulting denial of the right to participate in the public comment process, and the approval of
individual wells (OS, Dkt. No. 41, at 7). Because the Court determines below that OWL and OS
have stated a claim based on the 2010 SIR being a final agency action, the Court need not
address whether the resulting denial of the right to participate in the public comment process and
the approval of individual wells were final agency actions to rule on the pending motions to
dismiss.
For an agency action to be final, it must meet two conditions. First, “the action must
mark the consummation of the agency’s decision making process,” as it “must not be of a merely
tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citation
omitted) (internal quotation marks omitted). Second, “the action must be one by which rights or
obligations have been determined, or from which legal consequences will flow.” Id. (citation
omitted) (internal quotation marks omitted). An agency report that “serves more like a tentative
recommendation than a final and binding determination” is not a final agency action. Sierra
Club v. U.S. Army Corps of Eng’rs, 446 F.3d at 813. However, “if the agency has issued a

12

definitive statement of its position, determining the rights and obligations of the parties, that
action is final for purposes of judicial review despite the possibility of further proceedings in the
agency to resolve subsidiary issues.” Id. (citation omitted) (internal quotation marks omitted).
OWL argues that the SIR meets the requirements for a final agency action because the
Forest Service used the SIR instead of the formal NEPA finding of no significant impact
(“FONSI”), which is the typical document used for a final decision not to issue an EIS. 40
C.F.R. § 1501.4 (providing the formal procedure to decide whether to prepare an EIS). As the
Eighth Circuit has stated, the Supreme Court has strongly signaled that an agency’s decision to
issue a FONSI is a final agency action permitting immediate judicial review as long as plaintiffs
are able to point to an action “at least arguably triggering the agency’s obligation to prepare an
impact statement.” Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d at 815 (citing Ohio
Forestry Ass’n v. Sierra Club, 523 U.S. 726, 737 (1998)) (quoting Found. on Econ. Trends v.
Lyng, 943 F.2d 79, 85 (D.C. Cir. 1991)). In Lyng, which the Eighth Circuit cited favorably in
Sierra Club v. U.S. Army Corps of Engineers, the D.C. Circuit further explained that an action at
least arguably triggering the agency’s obligation to prepare an impact statement means “an
identifiable action or event” that is a “major Federal action[] significantly affecting the quality of
the human environment,” within the meaning of NEPA. 943 F.2d at 85 (interpreting Lujan, 497
U.S. at 899). The Ninth Circuit appears to have extended these principles to SIRs when used
instead of FONSIs. Native Ecosystems Council v. Tidwell, 599 F.3d 926, 937-38 (9th Cir. 2010)
(implicitly finding that the SIR determining not to issue a supplemental environmental
assessment upon discovery of new information after adoption of Forest Plan was final agency
action by scrutinizing its findings under NEPA).

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As discussed above, this Court determines that, based on the factual allegations in the
pleadings, defendants’ alleged role in the issuance and approval of oil and gas leases and permits
constitutes “major Federal actions” within the meaning of NEPA and that an EIS may have been
required after the 2008 RFDS and 2010 CCA. Specifically, OS alleges that, subsequent to the
SIR, defendants have leased mineral rights and approved exploratory and production drilling
permits and intend to continue to do so (Dkt. No. 1, at 1-2). The Court finds that these are
identifiable actions and events as contemplated by Sierra Club v. Army Corps of Engineers and
Lyng. Although defendants argue that all specific leases and permits pointed to by OS are either
unripe, moot, or barred by applicable statutes of limitation, these are summary judgment
arguments which the Court to resolve would have to look to matters outside the pleadings.
Based on the findings and case law above, the Court also finds that it may reasonably infer from
the factual allegations in OWL and OS’s complaints that the 2010 SIR was a final agency action.
See also Spear, 520 U.S. at 178 (holding that a biological opinion and accompanying incidental
take statement were final agency actions because they “alter the legal regime to which the action
agency is subject, authorizing it to take endangered species if (but only if) it complies with
prescribed conditions,” having direct and appreciable legal consequences).  
In sum, to state a claim under § 706(2), a plaintiff must allege facts allowing the Court to
infer reasonably that defendants took a final agency action that is impermissible under the APA.
For the reasons explained above, OWL and OS allege facts in their complaint that, taken as true
and viewed in the light most favorable to OWL and OS, allow this Court to infer that defendants’
took a final agency action. This is because defendants’ alleged continuing issuance and approval
of oil and gas leases and permits in the Forest, as stated in OWL and OS’s complaints, are
identifiable major federal actions that significantly affect the quality of the human environment.

14

Further, OWL and OS allege facts that, taken as true and viewed in the light most favorable to
OWL and OS, allow this Court to infer reasonably that the SIR’s findings regarding the impact
of the information contained in the 2008 RFDS and 2010 CCA were impermissibly arbitrary and
capricious under NEPA. See Goos, 911 F.2d at 1292 (stating that agency’s decision not to
prepare a supplemental EIS, or an EIS in the first instance, is impermissible if that decision was
arbitrary and capricious). Accordingly, the Court determines that OWL and OS state a NEPA
claim under § 706(2) upon which relief may be granted.
D.

OS’s NFMA Claim

OS alleges that defendants failed to comply with NFMA planning requirements.
Defendants argue that OS fails to state a claim under the NFMA because the Forest Service was
under no obligation to amend or revise the 2005 Forest Plan.
There is a distinction between amending a forest plan and revising a forest plan. The
Court agrees that there is nothing in the NFMA “or the implementing regulations which requires
the Forest Service to amend the Plan.” Citizens for Envtl. Quality v. United States, 731 F. Supp.
970, 992 (D. Colo. 1989). However, it appears that the Forest Service would be required to
revise the Plan upon a finding by the Secretary of Agriculture that conditions in the unit had
significantly changed. See 16 U.S.C. § 1604(f)(5) (The Forest Service “shall” revise forest plans
“from time to time when the Secretary finds conditions in a unit have significantly changed, but
at least every 15 years.”); Forest Guardians v. Thomas, 967 F. Supp. 1536, 1555 (D. Ariz. 1997)
(“[W]hile the Secretary has discretion in that a LRMP is to be revised when the Secretary finds
conditions have changed, the Secretary must revise the LRMP at least every fifteen years.”).
OS alleges that the 2005 Forest Plan fails to contemplate the impact of the amount of oil
and gas projects predicted in the 2008 RFDS and 2010 CCA on certain areas, including wild and

15

scenic rivers in the Forest (OS, Dkt. No. 1, at 23-24; Dkt. No. 41, at 15). In other words, OS
appears to argue that the Secretary’s decision that conditions in the unit have not significantly
changed, as decided in the 2010 SIR and which allowed the Forest Service to avoid revising the
Plan, was an arbitrary and capricious final agency action. For the same reasons that OWL and
OS state a NEPA claim upon which relief may be granted, OS states a NFMA claim upon which
relief may be granted. Specifically, the Court can reasonably infer that the SIR was a final
agency action for purposes of OS’s NFMA claim because OS alleges facts that, taken as true and
viewed in the light most favorable to OS, allow the Court to infer reasonably that the unit had
significantly changed, at least arguably triggering the Forest Service’s obligation to revise the
Plan. Cf. Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d at 815 (holding that, for purposes
of a NEPA claim under the APA, a FONSI is a final agency action permitting immediate judicial
review as long as plaintiffs are able to point to an action “at least arguably triggering the
agency’s obligation to prepare an impact statement”). The Court denies defendants’ motion to
dismiss OS’s NFMA claim.
E.

OS’s WSRA Claim

Defendants next argue that OS fails to state a claim under the WSRA because the WSRA
does not obligate the Forest Service to amend a Forest Plan to account for activities outside of a
wild and scenic river corridor.
Under the WSRA, an “agency having jurisdiction over any lands which include, border
upon, or are adjacent to, any river included within the National Wild and Scenic Rivers System .
. . shall take such action respecting management policies, regulations, contracts, plans, affecting
such lands . . . as may be necessary to protect such rivers.” 16 U.S.C. § 1283(a). The Eighth
Circuit has stated that Ҥ 1283(a) does not require agencies managing adjacent federal land to

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prepare or join in a WSRA plan. It merely instructs their managers to take actions that protect
designated rivers. Whether that standard has been met in a particular case is a question of fact.”
Newton Cnty. Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 113 n.4 (8th Cir. 1997).
Regarding other obligations an agency may have under the WSRA, the Eighth Circuit stated that
“the agency has substantial discretion in deciding procedurally how it will meet those
obligations.” Id. at 112-13.
Here, OS contends that “defendants have taken no steps to plan for or address water
quality impacts” on wild and scenic rivers from “gas leasing, exploration, and development” on
bordering or adjacent land (Dkt. No. 1, at 29; Dkt. No. 41, at 16). This is an APA § 706(1)
claim. However, OS fails to state a claim based on these allegations because it has failed to point
to a discrete agency action that defendants were required to take under the WSRA. See SUWA,
542 U.S. at 64; see also Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1111-13 (9th
Cir. 2003) (dismissing plaintiff’s claim that agency failed to consider potentially eligible rivers in
project plans because the WSRA did not require it). Accordingly, the Court grants defendants’
motion to dismiss OS’s WSRA claim.
F.

OS’s Energy Policy Act Claim

The Energy Policy Act provides that certain activities “shall be subject to a rebuttable
presumption that the use of categorical exclusion under [NEPA] would apply . . . .” 42 U.S.C. §
15942(a). One such activity is
[d]rilling an oil or gas well within a developed field for which an approved land
use plan or environmental document prepared pursuant to NEPA analyzed such
drilling as a reasonably foreseeable activity, so long as such plan or document was
approved within 5 years prior to the date of spudding the well.
Id. § 15942(b)(3).

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OS alleges that defendants have arbitrarily and capriciously abused 41 U.S.C. §
15942(b)(3) by applying the statute’s categorical exclusion to approve SUPOs and APDs despite
not having prepared a NEPA document analyzing such drilling within the past five years. OS
contends that defendants have used the 2010 SIR, which is not a NEPA document, to justify
application of the categorical exclusion. OS also alleges that defendants have not promulgated
regulations defining a “developed field” (Dkt. No. 1, at 27).
The Energy Policy Act merely establishes a “rebuttable presumption that the use of a
categorical exclusion under [NEPA] would apply.” 42 U.S.C. § 15942(a). It does not create a
duty to promulgate regulations defining a “developed field” or “studying the impacts of such
development” (Dkt. No. 1, at 27-28). OS’s allegations do not constitute claims separate from its
NEPA claims or cognizable under the Energy Policy Act. To the extent that OS attempts to
bring a separate claim under the Energy Policy Act, that claim is dismissed.
IV.

Conclusion

In conclusion, the Court grants in part and denies in part defendants’ motions to dismiss
(OWL, Dkt. No. 20; OS, Dkt. No. 30). The Court dismisses OWL’s claims regarding the Lake
and OS’s WSRA and Energy Policy Act claims. OWL and OS’s remaining claims survive
defendants’ motions to dismiss.
The parties are directed to file status reports within 14 days of the date of this Order. In
their status reports, the parties should note whether further discovery is needed in this case and, if
so, identify specifically what discovery the parties propose to complete. The parties also should
note whether they anticipate a trial will be necessary so that a trial date can be set. The Court
will enter a scheduling order following and based upon the parties’ status reports.

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SO ORDERED this the 6th day of October, 2014.

____________________________________
Kristine G. Baker
United States District Judge

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