Western Watersheds Project et al v. Schneider et al
Filing
264
MEMORANDUM DECISION AND ORDER - Plaintiffs Motion for Partial Summary Judgment (Dkt. 235 ) is GRANTED in part and DENIED in part. a. The motion is GRANTED on Plaintiffs APA violation claims. b. The BLMs cancellation of the application and proposal f or the SFA Mineral Withdrawal is VACATED and remanded to the BLM for further proceedings and consideration of whether the withdrawal is needed for sage grouse conservation. Such proceedings shall include re-initiation of the NEPA process. c. The moti on is DENIED on Plaintiffs NEPA violation claim.2. Defendants Motion for Partial Summary Judgment (Dkt. 239 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
Case 1:16-cv-00083-BLW Document 264 Filed 02/11/21 Page 1 of 78
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Western Watersheds Project; et al.,
Case No. 1:16-cv-00083-BLW
Plaintiffs,
MEMORANDUM DECISION AND
ORDER
v.
DAVID BERNHARDT, Secretary of
Interior; et al.,
Defendan
ts.
INTRODUCTION
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment (Dkt.
235) and Defendants’ Cross Motion for Partial Summary Judgement (Dkt. 239). At
issue on the cross motions is the Bureau of Land Management’s decision to cancel
the proposed mineral withdrawal of 10 million acres of federal lands located in
Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, which had previously been
identified as Sagebrush Focal Area (SFA) essential for the long-term health of sage
grouse. Plaintiffs seek partial summary judgment reversing the Bureau of Land
Management’s cancellation decision. Defendants seek partial summary judgment
on, and the dismissal of, Plaintiff’s claim challenging the cancellation decision.
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The Court heard oral argument on October 6, 2020. For the reasons set forth
below, the Court will grant in part and deny in part Plaintiffs’ motion for partial
summary judgment and deny Defendants’ motion for partial summary judgment.
LITIGATION BACKGROUND
The original complaint in this case was brought by four different
environmental groups challenging fifteen Environmental Impact Statements (EISs)
issued in 2015 that govern land covering ten western states. The gist of Plaintiffs’
lawsuit was that the BLM and Forest Service artificially minimized the harms to
sage grouse by segmenting their analysis into 15 sub-regions without conducting
any range-wide evaluation—the agencies looked at the trees without looking at the
forest, so to speak. Plaintiffs brought their claims under the National
Environmental Policy Act (NEPA), the Federal Land Policy and Management Act
(FLPMA), and the National Forest Management Act (NFMA).
As this litigation was underway, the Trump Administration came into office
and began a process to review and revise the 2015 Sage Grouse Plans. This
litigation was put on hold pending that review. In 2017 that review was completed.
WWP alleges that, as part of that review, former Interior Secretary Ryan Zinke
directed agencies to relax restrictions on oil and gas development in sage grouse
habitat. The BLM responded by issuing amendments to the Sage Grouse Plans
(referred to as the 2019 Plan Amendments).
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In May 2019, Plaintiffs supplemented their complaint to challenge the
BLM’s 2019 Plan Amendments. Plaintiffs allege that the agency—acting at the
direction of the Trump Administration—again made common errors across
numerous Plans, including (1) failing to conduct a range-wide analysis, (2) failing
to evaluate climate change impacts, and (3) generally removing protections for the
sage grouse that were not justified by science or conditions on the ground.
Plaintiffs also brought numerous supplemental claims for relief. At issue in the
cross-motions for summary judgment currently before the Court is Plaintiffs’ fifth
supplemental claim, challenging the BLM’s October 2017 SFA Mineral
Withdrawal Cancellation Notice, 82 Fed. Reg. 47,248 (Oct. 11, 2017), as violating
NEPA, NEPA regulations, and the APA.
FACTUAL BACKGROUND
A.
Sage Grouse Decline
This Court has written extensively about the decline of sage grouse
populations and habitat. See WWP v. FWS, 535 F. Supp. 2d 1173 (D. Idaho 2007);
WWP v. Schneider, 417 F. Supp. 3d 1319 (D. Idaho 2019). Despite these declines,
the Fish and Wildlife Service (FWS) in 2005 determined that a listing under the
Endangered Species Act (ESA) was “not warranted.” The Court reversed that
decision, finding that it ignored declines in population and habitat, and was not
based on the best available science as required by the Endangered Species Act
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(ESA). See 535 F. Supp.2d 1173. The Court remanded the case to the U.S. Fish
and Wildlife Service (FWS) for further consideration.
On remand, the FWS issued a new finding in 2010 that ESA listing of the
sage grouse was “warranted-but-precluded.” See 75 Fed. Reg. 13910 (March 5,
2010). That finding stressed the inadequacy of federal land use plans to protect
sage grouse, particularly from energy development impacts. Id. at 13,942. The
FWS’s determination prompted the Bureau of Land Management (BLM) and the
U.S. Forest Service, along with several states, to consider protections for the sage
grouse to avoid a future ESA listing.
B.
National Greater Sage-Grouse Planning Strategy
The BLM and Forest Service launched their National Greater Sage-Grouse
Planning Strategy in 2011 to amend federal land use plans with sage grouse
conservation measures necessary to avoid ESA listing. To guide that strategy, a
National Technical Team (NTT) of sage-grouse experts was convened. The NTT
released their “Report on National Greater Sage-Grouse Conservation Measures”
(NTT Report) in December 2011. This Court found—after an evidentiary hearing
and testimony from sage grouse expert Dr. Clait Braun—that the NTT Report
“contains the best available science concerning the sage-grouse.” See WWP v.
Salazar, 2012 WL 5880658, at *2 (D. Id. Nov. 20, 2012).
The NTT Report emphasized the protection of priority sage grouse habitats
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and the need for buffers around sage grouse leks. (SFA_18380-83; SFA_1839394.) The NTT report stated that the “overall objective is to protect priority sagegrouse habitats from anthropogenic disturbances that will reduce distribution or
abundance of sage grouse.” (SFA_18380.) It identified priority sage-grouse
habitats as “breeding, late brood-rearing, winter concentration areas, and where
known, migration or connectivity corridors.” (Id.) The NTT Report recommended
closing these priority sage-grouse habitat areas to oil and gas or other mineral
leasing, concluding that “[t]here is strong evidence from the literature to support
that surface-disturbing energy or mineral development within priority sage-grouse
habitats is not consistent with the goal to maintain or increase populations or
distribution.” (SFA_18392.)
With regard to lek buffers, the NTT Report found that the BLM’s existing
0.25 mile “No Surface Occupancy” buffers around sage-grouse leks and 0.6 mile
seasonal timing buffers were inadequate to protect sage-grouse, stating that
“protecting even 75 to >80% of nesting hens would require a 4-mile radius buffer”
and that even a 4-mile buffer “would not be large enough to offset all the impacts”
of energy and mineral development. (SFA_18393-94.)
In March 2013, the FWS released its own report entitled the “Conservation
Objectives Team Report” (COT Report) that identified “Priority Areas for
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Conservation” (PACs) as “key habitats necessary for sage-grouse conservation.”
(SFA_18467.) The COT Report emphasized that “[m]aintenance of the integrity of
PACs . . . . is the essential foundation for sage-grouse conservation,” but
recognized that “habitats outside of PACs may also be essential,” including to
provide connectivity between PACs. (SFA_18467; SFA_18490.) The COT Report
recommended avoiding “new mining activities and/or any associated facilities
within occupied habitats, including seasonal habitats” and stressed the need to
ensure “no net loss of sage-grouse habitats in areas affected by mining.”
(SFA_18503.) The COT Report also stated: “There is an urgent need to ‘stop the
bleeding’ of continued population declines and habitat losses by acting
immediately to eliminate or reduce the impacts contributing to population declines
and range erosion,” and that “[t]here are no populations within the range of sagegrouse that are immune to the threat of habitat loss and fragmentation.”
(SAF_18485-46.) “Achieving this objective requires eliminating activities known
to negatively impact sage-grouse and their habitats, or redesigning these activities
to achieve the same goal.” (SFA_18486.) The report found that management “must
continue to effectively conserve all current PACs,” which are “essential for sagegrouse conservation.” (SFA_18448; SFA_18486.)
In an October 2014 memorandum to the BLM and Forest Service, the FWS
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identified a sub-category of the PACs as sage-grouse “stronghold” areas that have
the “highest densities of greater sage-grouse and other criteria important for the
persistence.” (SFA_14530.) These strongholds were the basis for the “Sagebrush
Focal Areas” (SFAs) in the 2015 Plans (which are discussed next) and were
designated as “a subset of priority habitat most vital to the species persistence
within which [the FWS] recommend[s] the strongest levels of protection.” (Id.)
C.
The 2015 Plans and Proposed SFA Mineral Withdrawal
In 2015, the BLM and Forest Service adopted Sage-Grouse Plans (the 2015
Plans) that covered ten states, revised 98 federal land use plans, and incorporated
many of the NTT and COT Reports’ recommendations, such as restrictions to
prevent or minimize surface disturbances in priority habitats, and requirements of
compensatory mitigation for unavoidable adverse impacts to sage-grouse habitats.
As called for in the NTT and COT Reports, the 2015 Plans established new sagegrouse priority habitat designations with heightened management protections
across some 67 million acres of federal land, including “Priority Habitat
Management Areas” (PHMAs)—of which SFAs are a subset—and “General
Habitat Management Areas” (GHMAs), along with other priority habitats in
certain states (including “Important Habitat Management Areas,” or IHMAs, in
Idaho). 80 Fed. Reg. 59875, 59905.
PHMAs “are the location of the highest quality habitat with the greatest
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number of breeding sage-grouse,” and largely coincide with PACs identified in the
COT Report. 80 Fed. Reg. 59875. These “[p]riority sage-grouse habitats are areas
that have the highest conservation value to maintaining or increasing sage-grouse
populations.” (Id.) GHMAs are sage grouse habitat that contain “fewer leks and
sage-grouse than PHMAs” and “provide sage-grouse conservation by protecting
habitat and connectivity between populations and potential refugia in the event of
catastrophic events such as wildfire.” 80 Fed. Reg. 59878.
To address threats from mining, the BLM submitted an application
requesting the Secretary of Interior withdraw approximately 10 million acres of
SFA from mineral location and entry under the Mining Law, subject to valid
existing rights. See 80 Fed. Reg. 57635-37. The FWS supported this proposed
withdrawal. See 80 FR 59878; see also 80 FR 59916 (“Within the areas of greatest
conservation importance (SFAs), DOI will recommend withdrawal from locatable
mineral entry. We support the recommendations for mineral withdrawal in SFAs
that would remove potential impacts on approximately 4 million ha (10 million ac)
of sage-grouse habitat.”).
The Secretary of Interior approved the withdrawal application and took the
first step in the withdrawal process by proposing the withdrawal on September 16,
2015, and publishing notice of the proposed withdrawal on September 24, 2015. 80
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Fed. Reg. 57635; see 80 Fed. Reg. 59878. see also 43 C.F.R. § 2310.3-1 (setting
out publication and public meeting requirements for a proposed withdrawal of
lands).
D.
2015 FWS “Not Warranted” Finding.
The protections for sage grouse contained in the BLM and Forest Service’s
2015 Plans convinced the FWS to revise its 2010 finding that an ESA listing was
“warranted but precluded,” to a finding that listing of the sage grouse was “not
warranted.” The FWS explained this change as follows:
Since 2010, there have been several major changes in the regulatory
mechanisms that minimize impacts to sage-grouse and their habitats.
Foremost among these are the adoption of new Federal Plans
specifically tailored to conserving sage-grouse over more than half of
its occupied range. These Federal Plans now include substantial
provisions for addressing activities that occur in sage-grouse habitats
and affect the species, including those threats identified in 2010 as
having inadequate regulatory measures. Aside from addressing
specific activities, the Federal Plans include provisions for
monitoring, adaptive management, mitigation, and limitations on
anthropogenic disturbance to reduce impacts authorized in sagegrouse habitats. The Federal Plans are the foundation of land-use
management on BLM and USFS managed lands. We are confident
that these Federal Plans will be implemented and that the new
changes, which are based on the scientific literature, will effectively
reduce and minimize impacts to the species and its habitat.
80 Fed. Reg. 59,887. The FWS further stated that “the Federal Plans provide
adequate mechanisms to reduce and minimize new disturbance in the most
important areas for the species. By following COT Report and NTT guidance and
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restricting impacts in the most important habitat, the Federal Plans ensure that
high-quality sage-grouse lands with substantial populations are minimally
disturbed and sage-grouse within this habitat remain protected.” 80 Fed. Reg.
59882.
Regarding federal conservation plans, the FWS stated:
Within the areas of greatest conservation importance (SFAs), DOI
will recommend withdrawal from locatable mineral entry. We support
the recommendations for mineral withdrawal in SFAs that would
remove potential impacts on approximately 4 million ha (10 million
ac) of sage-grouse habitat. . . . These measures minimize mining
impacts in priority habitats for the life of the management plans,
estimated to be the next 20 to 30 years. Based on what we know
today, no mining activities are likely to result in loss of these
important areas for conservation, but we recognize that economic
changes or technological advances may increase the risk of
development in the future. Therefore, the long-term protection of the
sage-grouse habitat in the SFAs from locatable mineral development
will ensure that these important populations are conserved into the
future.
80 Fed. Reg. 59916.
The FWS explicitly relied on the BLM and Forest Service’s conservation
efforts, including the proposed withdrawal, in finding that the listing of the sage
grouse as a threatened or endangered species “is not warranted at this time.” 80
Fed. Reg. 59936.
E.
Draft Environmental Impact Statement
In December 2016, the BLM circulated a Draft Environmental Impact
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Statement (DEIS) analyzing the proposed SFA mineral withdrawal. (SFA_14480.)
The DEIS described the purpose of the withdrawal as avoiding “loss of greater
sage-grouse habitat important for the persistence of the species,” and “because
certain mining operations are viewed by USFWS as a threat to the persistence of
greater sage-grouse and the agencies have less discretion with respect to when and
where mineral exploration and mining under the Mining Law is conducted, as
compared to other agency authorizations.” (SFA_14485-86.)
The DEIS analyzed five alternatives, including a “No Action” alternative,
and the “Proposed Action” alternative—the proposed withdrawal of 10 million
acres of SFA. (SFA_14488.) The BLM also commissioned a USGS survey, which
produced a “Mineral Potential Report,” to analyze the impacts of each alternative.
(SFA_14530.) The Mineral Potential Report described the locatable mineral
potential within the withdrawal area and provided the basis for the DEIS’s
Reasonable Foreseeable Development (RFD) scenario, which provided an
“estimate of the amount and type of future locatable mineral exploration and
development that could occur in the proposed withdrawal area over the 20-year
duration of the withdrawal.”1 (SFA_14531.)
1
The DEIS states that the RFD “provides a consistent set of assumptions regarding the
(Continued)
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Under the no action alternative, i.e., no withdrawal, the DEIS projected that
114 future exploration projects and 26 future mines would occur in the SFA over
the next 20 years. (SFA_14488; SFA_14609.) Under the proposed alternative, i.e.,
the 10-million acre withdrawal, the DEIS projected that only 38 future exploration
projects and 3 future mines would occur in the SFA over the next 20 years. (Ibid.)
The BLM estimated the average disturbances for each type of activity using
its database of past mining projects. (SFA_ 14560-61.) Small exploration projects
were those estimated to involve 5 acres of disturbance area; large projects were
estimated to involve a disturbance greater than 5 acres (SFA_14561.) Small mining
projects were estimated to generate a disturbance area of less than 100 acres, and
large mining projects were estimated to involve a disturbance area of 100 or more
acres. (SFA_14560.) To assess the impacts on sage grouse, the DEIS estimated the
number of leks, male birds, and habitat that would be impacted under each
alternative, calculating habitat disturbance using the estimated footprint of
exploration and mining projects for each alternative. (SFA_14877.)
The DEIS then classified the mining-related impacts as minor, moderate, or
anticipated future mineral development projects that could occur in the absence of the
withdrawal and serves as the basis for assessing the environmental impacts of the” proposed
withdrawal. (SFA_14531.)
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major using the following definitions: minor impacts “would affect less than 1
percent of the leks, habitat, or population members within the SFA withdrawal
area, within a specified SFA, or within a state”; moderate impacts “would affect
more than 1 percent but less than 3 percent of the leks, habitat, or population
numbers within the SFA withdrawal area, within a specified SFA, or within a
state”; and major impacts “would affect more than 3 percent of the leks, habitat, or
population numbers within the SFA withdrawal area, within a specified SFA, or
within a state.” (SFA_14876.)
The DEIS projected that future mining under the proposed action alternative,
which would close the SFA withdrawal area to all new claims, would result in 291
leks impacts and 5,749 male sage grouse impacts. (SFA_14883.) Under the no
action alternative, future mining was projected to result in 494 leks and 9,292 male
sage grouse impacts. (Id.) This meant that the withdrawal was projected to result in
203 (14%) fewer leks impacted and 3,543 (12%) fewer males impacted than the no
action alternative. (See Pl SOF, ¶ 40; SFA_14882, 14883.) Under the BLM’s
definitions, these percentage differences exceeded the threshold for a “major”
impact.
The DEIS was adopted on December 30, 2016. (SFA_14482.) It was open
for public comment from December 30, 2016 to March 30, 2017. (SFA_16966.)
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The BLM received 4,210 responses, including letters and emails, to the DEIS. (Id.)
F.
FWS Comments
The FWS submitted its comments to the DEIS in March 2017. These
comments stressed the continued importance of SFAs for sage grouse conservation
and recommended, at a minimum, that areas with moderate and high mineral
potential be withdrawn. (SFA_16936-53.) The FWS reiterated that the “planned
withdrawal was included and relied upon in the [FWS’s] 2015 not warranted
finding to show the reduction in risk of habitat loss and fragmentation due to
locatable mineral development in GRGS habitat.” (SFA_16936.)
The FWS also noted that, at the time of its 2015 not warranted finding,
“there was little comprehensive information available about potential mineral
development in important GRSG habitats and mineral potential appeared
widespread,” but that, since then (in 2016), the USGS released a survey (the
Mineral Potential Report) that evaluated the potential for locatable minerals in the
SFA proposed for withdrawal. (Id.)
The FWS comments went on to note that “the SFAs identified by the BLM
remain important areas for GRSG. Prioritization of habitat availability and
connectivity in these areas remain important.” (SFA_16937.) The FWS explained:
“Many of the SFAs provide connectivity between GRSG populations. Loss of
connectivity in these areas would likely result in population isolation with
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associated loss of genetic diversity and long-term population persistence. The
[FWS] supports protecting SFAs from fragmentation and limiting development in
SFAs to keep an intact sagebrush landscape.” (Id.)
The FWS also stated that, “to meet the need of the EIS to protect the GRSG
and its habitat from adverse effects of locatable mineral exploration and mining,
the [FWS] believes that areas within the SFAs identified as having high and
moderate mineral potential are the most important to include in the mineral
withdrawal” and recommended that the BLM “craft an alternative that focuses the
withdrawals on the areas identified as high or moderate potential for locatable
minerals.” (Id.)
Finally, the FWS provided a detailed assessment of the current status of
potentially impacted populations, and their contributions to population connectivity
and noted flaws and omissions in DEIS analysis, including BLM’s failure to
analyze potentially “major” localized impacts and lost population connectivity.
(SFA_16943-53.) The FWS also provided a detail state-by-state assessment of the
percentage of SFA classified as high or moderate mineral potential, the current
status of potentially-impacted populations, and their contributions to population
connectivity. (SFA_16940-42.)
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G.
2017 Administrative Final EIS
In 2017, after the Trump Administration came into office and while this
litigation was pending, then-Interior Secretary Zinke directed that a “Sage-Grouse
Review Team” be assembled to review the 2015 Sage-Grouse Plans and
recommend modifications to “enhance State involvement” and align the BLM’s
actions with State plans concerning the sage grouse. (Dkt. 94, 94-1, 94-2.) This
new team recommended numerous modifications to the 2015 Plans and, in
September 2017, the BLM released an “Administrative Final EIS (AFEIS)
(SFA_16960-17694.) The AFEIS was not circulated for external review.
The AFEIS made adjustments to the number of birds and leks impacted by
withdrawal alternatives, finding that under the no action alternative, 470 leks and
3,219 males would be impacted, and under the withdrawal alternative, 90 leks and
649 males would be impacted (SFA_17382.) Based on the adjusted numbers, the
AFEIS projected that the withdrawal would benefit 12% of leks and 9% of males
in the SFA withdrawal area. (Id; Pl. SOF ¶ 40.) However, the AFEIS further
divided the percentage impact by 20 (representing the 20 years that the withdrawal
of SFA would be in effect) to obtain what the AFEIS characterized as the
“maximum percent of total” leks or males “impacted per year.” (SFA_17382.)
The AFEIS also revised the definitions of what would be considered a
“minor,” “moderate,” or “major” impact. Under these revised definitions, a
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“minor” impact includes “impacts that would affect less than at least 1 percent of
the leks or population,” but also includes2 impacts that result in an annual
population drop of less than 40 percent, or that result in an annual population drop
of less than 10 percent for 3 consecutive years. (SFA_17374.) A “moderate”
impact was redefined to include an annual population drop of 40 percent or greater
in a single year, or an annual population drop of 10 percent or greater for 3
consecutive years.” (Id.) A “major” impact was redefined to include an annual
population drop of 60 percent or greater, or an annual population drop of 20
percent or greater for 3 consecutive years. (Id.)
Based on these new definitions, the AFEIS determined that mining would
cause only minor negative impacts to sage grouse populations, leks, and habitat.
(SFA_16975.) Again, in reaching that conclusion, the AFEIS divided the percent
of males and leks expected to be impacted by 20 to obtain what the AFEIS
characterized as the number that would be impacted per year. The AFEIS thus
concluded that the total number of leks that could be directly impacted by the
proposed withdrawal was approximately 0.18 percent of all leks in the SFAs per
Because the revised definition of “moderate” has as floor of 40%, the effective
definition of a “minor” impact is an impact that results in an annual population drop of less than
40 percent, or that results in an annual population drop of less than 10 percent for 3 consecutive
years. (See SFA_17374.)
2
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year, and that the number of males impacted would be approximately 0.12 percent
of all males per year. However, as Plaintiffs point out, absent successful
restoration, which is difficult to achieve and may not occur,3 the impacts will be
cumulative and the projected total number of birds impacted by year 20 will be
3,219, and the total leks impacted will be 470 based on the numbers provided in
the AFEIS.4
H.
Cancellation of Proposal
On October 5, 2017, then-Acting BLM Director, Michael D. Nedd,
submitted a memorandum to then-Deputy Interior Secretary David Bernhardt, with
the subject line: “Proposal to Cancel Withdrawal Application and the Proposed
3
As Plaintiffs point out, and Defendants do not dispute, mining and associated
infrastructure in sagebrush habitats result in direct habitat loss, and restoration of sagebrush,
even where required, “is difficult to achieve and disturbed sites may never return to suitability
for sage grouse.” (Pl. SOF at 2, Dkt. 235-2; Def. SOF at 1, Dkt. 239-3; SFA_9936-7;
SFA_17378.) Further, resulting habitat fragmentation can magnify the decline of sage grouse
populations by restricting the connectivity between populations, limiting genetic flow, and
placing isolated populations at risk of extirpation. (Ibid.; see SFA_18463-64 (COT Report
discussing “loss and fragmentation of sagebrush habitats as a primary cause of decline of sagegrouse populations”; that “restoration of disturbed areas is very difficult,” that not all areas can
be restored; that “processes to restore healthy native sagebrush communities are relatively
unknown”; and noting the various sources of habitat loss).)
4
The AFEIS also changed the total number of estimated mines and exploration projects
for the withdrawal area. For the mines, the no action estimate was increased from 26 in the DEIS
to 31 in the AFEIS, and the withdrawal estimate was increased from 3 in the DEIS to 4 in the
AFEIS. (SFA_14803; SFA_107296.) For the number of exploration projects, the no action
estimate was decreased from 114 in the DEIS to 100 in the AFEIS, and the withdrawal estimate
was decreased from 38 in the DEIS to 29 in the AFEIS. (Ibid.)
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Withdrawal for the Sagebrush Focal Areas and Terminate Environmental Impact
Statement” (Nedd Memo). (Rangewide_4-26.) The Memo states that the
withdrawal recommendation “was unreasonable in light of the data available at the
time of the decision,” and that through the NEPA process, the USGS Survey and
the states have provided data on mining activity and its impacts, “which confirmed
that the proposed withdrawal was unnecessary.” (Rangewide_4-5.) Citing the
finding of the AFEIS, and federal regulations that allow cancellation of a
withdrawal application, 43 C.F.R. § 2310.1-4(a), the Nedd Memo concluded that
the withdrawal was “no longer needed” for sage grouse conservation because the
benefits to sage grouse “would be minimal.” (Rangewide_12-13, 14.) The Nedd
Memo relied on the findings of the AFEIS regarding the impacts that were now
deemed “minor.” The Nedd Memo concluded by proposing that the BLM cancel
the withdrawal application and terminate the EIS process. (Rangewide_15.)
The Nedd Memo was signed by then-Secretary of Interior David Bernhardt
on October 5, 2017, showing his concurrence with the recommendation. (Id.). That
same day, BLM issued a press release announcing it had cancelled the withdrawal,
quoting Nedd as stating: “The proposal to withdraw 10 million acres to prevent
10,000 from potential mineral development was a complete overreach.”
(SFA_10117.)
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On October 10, 2017, the BLM published a Federal Register notice that it
had cancelled the withdrawal proposal and terminated the EIS process. See Fed.
Reg. 47248. BLM did not issue a final EIS.
STATUTORY FRAMEWORK
A.
Mining and Withdrawals of Public Lands from Mining
Under the 1872 Mining Law, all federal public lands are open to locatable
mining unless they have been withdrawn. Citizens can locate mining claims on
federal public lands by making a discovery of a deposit of gold, silver, cinnabar,
lead, tin, copper, “or other valuable deposits.” 30 U.S.C. §§ 22, 23. A citizen that
has a valid mining claim also has the right of “possession and enjoyment of” the
surface of federal lands for purposes of mining. See 30 U.S.C. § 26.
“Only a withdrawal from location and entry under the Mining Law can
prevent the establishment of new mining claims and provide certainty that lands
not encumbered by mining claims will not be developed.” (SFA_14485.) Thus,
federal agencies “have less discretion with respect to when and where mineral
exploration and mining under the Mining Law is conducted, as compared to other
agency authorizations.” (SFA_14486.)
The process of withdrawing federal public lands from location and entry
under the Mining Law is initiated through submission of an application for
withdrawal to the Secretary of the Interior, or upon the Secretary’s own proposal
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for a withdrawal. 43 U.S.C. § 1714. Once an application has been accepted, or a
proposal made, the Secretary must publish a notice in the Federal Register stating
that the application has been submitted or the proposal has been made and setting
forth the extent to which land is to be segregated while the application is being
considered by the Secretary. Id.
The publication of notice in the Federal Register triggers a temporary
segregation of the proposed withdrawal land pending the Secretary’s final decision,
for a period of up to 2 years. Id.; 43 C.F.R. § 2310.2. This temporary segregation
terminates upon (1) rejection of the withdrawal application by the Secretary,
(2) the withdrawal of lands by the Secretary, or (3) the expiration of the 2-year
temporary segregation period. 43 U.S.C. § 1714(b); 43 C.F.R. 2310.2. The
termination of temporary segregation upon expiration of the 2-year period does
not, however, affect the processing of the withdrawal application. 43 C.F.R.
§ 2310.2-1(d). Finally, withdrawals such as the present one, which is aggregating
5,000 or more acres, may be made for a period of not more than 20 years, subject
to renewal, and must receive Congressional approval. 43 U.S.C. § 1714(c).
A withdrawal application or proposal can be cancelled if the applicant or
proposer determines that withdrawal of the lands is “no longer needed” in
connection with a requested or proposed action. The filing of a cancellation notice
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in such a case terminates the temporary segregation of the lands and eliminates the
land from the withdrawal application or proposal. See 43 C.F.R. § 2310.1-4; 43
C.F.R. § 2310.2-1 (“The cancellation, in whole or in part, of a withdrawal
application or a withdrawal proposal shall result in the termination of the
segregative effect of the application or proposal, as to those lands deleted from the
application or proposal.”).
B.
NEPA
The purpose of NEPA is twofold: “(1) to ensure that agencies carefully
consider information about significant environmental impacts and (2) to guarantee
relevant information is available to the public.” N. Plains Res. Council, Inc. v.
Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011). “In order to accomplish
this, NEPA imposes procedural requirements designed to force agencies to take a
‘hard look’ at environmental consequences.” Lands Council v. Powell, 395 F.3d
1019, 1027 (9th Cir. 2005).
NEPA does not provide a separate standard of review. Thus, NEPA claims
are reviewed under the standards of the Administrative Procedures Act. See 5
U.S.C. § 706(2); San Luis v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014); NW
Resource Info. Ctr., Inc. v. NMFS, 56 F.3d 1060, 1066 (9th Cir. 1995).
C.
Administrative Procedures Act
Under the Administrative Procedures Act (APA), “an agency action must be
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upheld on review unless it is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Jewell, 747 F.3d at 601 (quoting 5 U.S.C.
§ 706(2)(A)). A reviewing court “must consider whether the decision was based on
a consideration of the relevant factors and whether there has been a clear error of
judgment.” Id. The reviewing court’s inquiry must be “thorough,” but “the
standard of review is highly deferential; the agency’s decision is entitled to a
presumption of regularity, and [the court] may not substitute [its] judgment for that
of the agency.” Id.
Although a court’s review is deferential, the court “must engage in a careful,
searching review to ensure that the agency has made a rational analysis and
decision on the record before it.” Nat'l Wildlife Fed. v. Nat'l Marine Fisheries
Serv., 524 F.3d 917, 927 (9th Cir. 2008). “[T]he agency must examine the relevant
data and articulate a satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
The reasoned-decision making requirement includes a duty to explain any
“departure from prior norms.” Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd.
of Trade, 412 U.S. 800, 808 (1973). Thus, an agency violates the APA when it
changes its policy or “chang[es] its course” without providing a reasoned
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explanation or analysis for that change. See State Farm, 463 U.S. at 34, 57;
Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d 956, 967, 969 (9th Cir.
2015) (agency violated the APA where it failed to provide a reasoned explanation
for the agency’s change in policy); Int'l Union, UAW v. NLRB, 802 F.2d 969, 97374 (7th Cir. 1986) (“[A]n administrative agency is not allowed to change direction
without some explanation of what it is doing and why.”)
JURISDICTIONAL CHALLENGES
Defendants contend that the Court lacks jurisdiction over Plaintiff’s
challenge to the BLM’s cancellation of the withdrawal application. Defendants
raise three arguments in support of this contention: (1) that the BLM’s cancellation
is not a final agency action; (2) that Plaintiffs have failed to demonstrate that they
have standing; and (3) that Plaintiffs’ free-standing APA claims are not cognizable.
A. Final Agency Action
To invoke the Court’s jurisdiction under the APA, a plaintiff must challenge
“agency action” that is “final.” 5 U.S.C. § 704; Lujan v. National Wildlife
Federation, 497 U.S. 871, 882 (1990). “ ‘[A]gency action’ includes the whole or a
part of an agency rule, order, license, sanction, relief or the equivalent or denial
thereof, or failure to act[.]” 5 U.S.C. § 551(13). Such a list is “meant to cover
comprehensively every manner in which an agency may exercise its power.”
Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 478 (2001).
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Agency action is “final” when two conditions are met: (1) “the action must
mark the consummation of the agency’s decision-making process—it must not be
of a merely tentative or interlocutory nature”; and (2) “the action must be one by
which rights or obligations have been determined, or from which legal
consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal
quotation marks and citation omitted); see Columbia Riverkeeper v. U.S. Coast
Guard, 761 F.3d 1084, 1094-95 (9th Cir. 2014) (“courts consider whether the
practical effects of an agency’s decision make it a final agency action, regardless
of how it is labeled”).
Here, the first prong of Bennett is met because the act of cancelling the
withdrawal proposal and terminating the EIS process marks the consummation of
the BLM’s decision-making process in relation to that withdrawal.
The second prong of Bennett is also met here because legal consequences
flowed from the BLM’s cancellation of the withdrawal application. Specifically, a
withdrawal of lands requires either an application for withdrawal from the agency,
or a proposal for withdrawal on the Secretary’s own motion. See 43 U.S.C. § 1714
(describing withdrawal of lands as requiring application for withdrawal or a
proposal for withdrawal on the Secretary’s own motion). The BLM’s cancellation
of the pending application for withdrawal terminated the withdrawal process and
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terminated the Secretary’s ability to consider the proposed withdrawal under the
application. See 43 C.F.R. § 2310.1-4(a) (providing for cancellation of withdrawal
applications where applicant determines lands are “no longer needed”). Thus, legal
consequences flowed from the BLM’s cancellation of the withdrawal application,
and the BLM’s cancellation decision is a final action subject to judicial review. See
Bennett, 520 U.S. at 177-78; Sound Action v. U.S. Army Corps of Engineers, 2019
WL 446614, *8 (W.D. Wash. 2019) (finding final agency action where memo
directed agency to stop evaluation of, and prevented agency from further
considering, potential alterations to the high tide line).
Defendants do not dispute that the first prong of Bennett is met.5 They
contend, however, that Bennett’s second prong is not met, and put forward several
5
Intervenors argue that the first prong of Bennett is not met because the cancellation of
the withdrawal was a discretionary decision and was not the BLM’s final word on the issue of
mineral withdrawal because the BLM is free to propose withdrawal of all or some portion of
SFA again at any time. (Dkt. 251.) This argument is entirely without merit. The BLM’s
cancellation decision was not tentative or interlocutory and the fact that the BLM may in the
future consider applying to withdraw some or all of the SFA does not impact the fact that the
cancellation was a consummation of the BLM’s decision making process as to the proposed
withdrawal at issue here. See Nat'l Env. Dev. Ass'n Clean Air Project v. EPA, 752 F.3d 999, 1006
(D.C. Cir. 2014) (“An agency action may be final even if the agency’s position is ‘subject to
change in the future.’ ”) (citation omitted); Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022
(D.C. Cir. 2000) (“But all laws are subject to change. Even that most enduring of documents, the
Constitution of the United States, may be amended from time to time. The fact that a law may be
altered in the future has nothing to do with whether it is subject to judicial review at the
moment.”); Sound Action, 2019 WL 446614 (rejecting argument that agency’s memo did not
mark the consummation of its decision-making process where memo halted any future
consideration of the specific proposal at issue).
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arguments in support of their contention.
For example, Defendants argue that because the 2-year temporary
segregation period expired prior to the BLM’s cancellation of the withdrawal
application, the cancellation did not determine any rights or obligations or have
legal consequences. The Court disagrees. Although expiration of the 2-year
temporary segregation period meant that the lands proposed for withdrawal were
no longer segregated, this expiration had no impact on the pending application for
withdrawal—that application remained pending before the Secretary. See 43
C.F.R. § 2310.2-1 (providing that the expiration of the 2-year temporary
segregation period “shall not affect the processing of the withdrawal application”).
It was, instead, the BLM’s cancellation that terminated the withdrawal application
and terminated the Secretary’s ability to consider the proposed withdrawal. See 43
U.S.C. § 1714 (describing withdrawal of lands as requiring an application for
withdrawal or a proposal for withdrawal on the Secretary’s own motion).
Further, although the BLM’s cancellation decision did not change the ability
of third parties to locate and develop new mining claims, and thus did not change
the status quo as to those interests, this does not render the BLM’s decision
unreviewable. Case law makes clear that an agency’s decision to not act, and thus
not change the status quo, is a final agency action subject to judicial review where,
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as here, the agency has entered into an evaluative process and there is a sufficient
record to enable judicial review. See, e.g., City of Chicago v. United States, 396
U.S. 162, 166-67 (1969) (agency decision to discontinue investigation is a final
agency action); Fox Television Stations, Inc. v. F.C.C., 280 F.3d 1027, 1037-38
(D.C. Cir.), opinion modified on reh’g, 293 F.3d 537 (D.C. Cir. 2002) (agency
decision not to repeal rules is a final agency action); Envt’l Def. Fund, Inc. v.
Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970) (agency inaction on request for
suspension of registration of pesticide can be final agency action); Capital Network
Sys., Inc. v. F.C.C., 3 F.3d 1526, 1530 (D.C. Cir. 1993) (refusal to institute rulemaking proceedings was final agency action); Nat. Res. Def. Council, Inc. v. Sec.
& Exch. Comm'n, 606 F.2d 1031, 1046 (D.C. Cir. 1979) (“in light of the strong
presumption of reviewability, discretionary decisions not to adopt rules are
reviewable where, as here, the agency has in fact held a rulemaking proceeding and
compiled a record narrowly focused on the particular rules suggested but not
adopted”); see also Rochester Telephone Corp. v. United States, 307 U.S. 125,
142-143 (1939) (explaining that agency decision to “dismiss a complaint on the
merits and maintain[] the status quo is an exercise of administrative function, no
more and no less, than an order directing some change in status”); Animal Legal
Def. Fund v. Veneman, 469 F.3d 826, 830-31 (9th Cir. 2006), opinion vacated on
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reh'g en banc, 490 F.3d 725 (9th Cir. 2007)6 (agency decision to not adopt draft
policy regarding treatment of primates was reviewable “final agency action” where
decision had practical consequence of allowing continuing harm to primates); cf.
Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473
U.S. 172, 193, (1985) (“the finality requirement is concerned with whether the
initial decisionmaker has arrived at a definitive position on the issue that inflicts an
actual, concrete injury”), overruled on other grounds by Knick v. Twp. of Scott,
Pennsylvania, 139 S. Ct. 2162 (2019).
Defendants also point out that the Secretary could have made a proposal on
his own motion for the withdrawal of the lands, and thus could have restarted the
withdrawal process, and contend that this means the BLM’s decision did not have
legal consequences. The Court disagrees. The possibility that the Secretary could
have initiated the withdrawal process in the future on his own motion does not
negate the legal consequences that flowed from the BLM’s decision—the
termination of the withdrawal application and resulting termination of the
6
The Veneman opinion was vacated for rehearing en banc, but the parties
settled and the case was dismissed prior to that rehearing. Thus, the opinion does
not have precedential effect. However, the opinion’s analysis regarding final
agency action provides persuasive authority. See United States v. Joelson, 7 F.3d
174, 178 n.1 (9th Cir. 1993).
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Secretary’s ability to consider the proposed withdrawal pursuant to that
application. See Cty. of Rockland v. U.S. Nuclear Regulatory Comm'n, 709 F.2d
766, 775 (2d Cir. 1983) (“The fact that the Commission may reexamine its
decision at a later date does not detract from the final nature of the December
decision.”); cf. Abramowitz v. United States Envtl. Protection Agency, 832 F.2d
1071, 1075 (9th Cir. 1987) (EPA notice stating that it was “holding open” and
“was not taking final action” on a ruling did not destroy finality).
Defendants point out that then-Deputy Secretary Bernhardt concurred in the
Nedd Memo, and that the BLM thus made a decision in concert with the Secretary
when it cancelled the application and terminated the withdrawal process. However,
that the Secretary may have informally concurred in the BLM’s cancellation
decision does not change the fact that the cancellation took consideration of the
application away from the Secretary, and that the Secretary thus no longer had the
ability to either reject or approve the application.
Finally, Defendants set forth a policy argument. They argue that the judicial
review sought by Plaintiffs is likely to interfere with the proper functioning of the
agency and impose a burden on the court, citing FTC v. Standard Oil Co., 449 U.S.
232, 242 (1980). Defendants’ reliance on Standard Oil is misplaced. In that case,
the Supreme Court found that an agency’s issuance of a complaint was not a final
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agency action but was, instead, “a threshold determination that further inquiry is
warranted and that a complaint should initiate proceedings.” Id. at 239, 241. Here,
in contrast to Standard Oil, the BLM’s cancellation decision was not a threshold
determination. It was a final decision in the withdrawal process and, as discussed
above, legal consequences flowed from that decision.
Additional cases cited by Defendants are similarly inapposite because direct
legal consequences did not flow from the agency action at issue in those cases;
instead, for legal consequences to flow, additional agency action was required. See,
e.g., Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 59394 (9th Cir. 2008) (agency’s determination that property contained wetlands
subject to Clean Water Act was not a final agency action but was merely a “bare
statement of the agency’s opinion”); Int’l Brotherhood of Teamsters v. U.S. Dep’t
of Transp., 861 F.3d 944, 952 (9th Cir. 2017) (agency’s issuance of a pilot program
report was not final agency action; although issuance of the report cleared the way
for issuing permits, the agency could still have lawfully declined to issue the
permits); Cal. by and through Brown v. EPA, 940 F.3d 1342, 1352 (D.C. Cir.
2019) (agency’s revised determination that emission standards were not
appropriate because they “may be too stringent” was not a final agency action
because the determination merely set in motion a rulemaking process that may
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result in a change in standards in the future); Nat’l Ass’n of Home Builders v.
Norton, 415 F.3d 8, 15 (D.C. Cir. 2005) (agency’s promulgation of voluntary
survey protocols that provide a methodology for the detection of an endangered
species was not a final agency action as it did not change or determine the legal
obligations of the landowners). In contrast, in the present case a direct legal
consequence flowed from the agency’s decision—the BLM’s cancellation decision
terminated the withdrawal application and thus terminated the Secretary’s ability to
consider the application and the proposed withdrawal. Accordingly, the BLM’s
decision is a final agency action subject to judicial review.
B. Standing
Standing requires that plaintiffs show an injury in fact, fairly traceable to the
defendant, and likely to be redressed by a favorable decision. Lujan, 504 U.S. at
560-61. To demonstrate injury in fact for a procedural claim—such as the claims at
issue here—a plaintiff “must show that the procedures in question are designed to
protect some threatened concrete interest of his [or hers] that is the ultimate basis
of his [or her] standing,” and “ ‘the reasonable probability of the challenged
action’s threat to [his or her] concrete interest.’ ” Citizens for Better Forestry v.
U.S. Dep't of Agric., 341 F.3d 961, 969 (9th Cir. 2003) (citations omitted).
Here, Plaintiffs contend that the BLM’s cancellation decision presents two
substantial risks of future harm to Plaintiffs’ members: (1) risks to the recreational
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and aesthetic use and enjoyment of members, and (2) risks to members’
opportunities to observe and photograph sage grouse. Plaintiffs have submitted
declarations of three members in support of standing.
The member declarations establish that the members have had extensive
contacts with SFA lands that were proposed for withdrawal, including living,
traveling, working, and recreating across significant portions of those lands, and
that these members have specific plans to continue doing so in the future. (See
Ruprecht Decl., Dkt. 235-3; Cole Decl., Dkt. 253-4; Klitz Decl., Dkt. 253-5.) These
declarations also establish that mining disturbances would lessen the members’ use
and enjoyment of these lands on future visits as well as their ability to observe and
photograph sage grouse. (See ibid.)
The record further establishes that there is a substantial risk that these
members will encounter mining disturbances that a withdrawal would have
prevented. Mining and associated infrastructure in sagebrush habitats cause
environmental damage, including surface disturbance and direct habitat loss and
fragmentation. Further, the impacts of mining operations extend well beyond the
direct surface disturbance and negative visual impacts that mining operations
create, and include ancillary impacts such as blasting noise, mine traffic, fugitive
dust, light pollution, air pollution, soil erosion, water contamination, surface water
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drawdowns, and networks of roads and powerlines. (See Ruprecht Decl., Dkt. 2353; Cole Decl., Dkt. 253-4.)
Defendants do not dispute these impacts but argue that Plaintiffs have failed
to demonstrate the injury in fact necessary to establish that they have standing.
Defendants point out that the proposed withdrawal covered nearly 10 million acres,
and that BLM’s analysis showed that mining was reasonably foreseeable on less
than 0.1% of this area, or 10,000 acres, over the next 20 years. Defendants take the
position that, to establish an injury in fact, Plaintiffs must identify a specific
proposed mining project in a specific area that Plaintiffs’ members plan to visit and
that only then will Plaintiffs have standing to challenge the cancellation of the
withdrawal. The Court disagrees.
Under the FLPMA, a withdrawal of public lands is “subject to valid existing
rights.” Pub. L. 94-579, § 701(h), 90 Stat. 2743, 2786 (1976)). Thus, the
withdrawal would have prevented the location only of new mining claims. As
Plaintiffs correctly point out, no prior notice is required for the location of new
claims. Further, although notice of a new claim must be filed within 90 days of
location,7 by the time this notice is filed, the claim is already in existence. Thus, it
7
See 43 U.S.C. § 1744 (imposing filing requirements for new claims); 43 C.F.R. §
(Continued)
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is impossible for Plaintiffs to know of new claims until after the claims are already
in existence. And, once in existence, the claims would not be precluded by a
withdrawal. This makes it impossible for Plaintiffs to identify a specific project
that would be precluded by a withdrawal. Indeed, Defendants argue repeatedly
throughout their briefs of the inability to know the location of future mining and
exploration projects.
Defendants also note that more than 90 days have passed since the
cancellation and that Plaintiffs have not cited to any new claims that have been
filed. However, assuming that no new claim has been filed in the interim since the
BLM’s cancellation of the withdrawal application, this would not negate the risk of
injury claimed by Plaintiffs. The BLM’s own AFEIS anticipated that there would
be 98 additional projects without a withdrawal. This information, combined with
the declaration of Plaintiffs’ members and the other information in the record
regarding the impact of mining and exploration projects, are sufficient to
demonstrate Plaintiffs’ injury in fact.
Further, the negative visible impacts of the surface disturbance and ancillary
impacts of mining can be seen from significant distances. For example, a small
3833.1 (a claim that is not recorded within 90 days of location is abandoned and void by
operation of law).
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exploration project in Nevada that disturbs 1 acre of land was found by the BLM to
be visible by a casual observer from a distance of approximately 3 miles. See
Mackay Optimization Project: Final Environmental Impact Statement, at page
3-7, retrieved from https://eplanning.blm.gov/public_projects/nepa/54844/2000368
9/25004345/201900903_volume_I_mackay_feis_508 (last visited Jan. 26, 2021).
As plaintiff points out, this 1-acre project would thus impact the viewshed of over
18,000 surrounding acres.8 Extrapolating this impact to the anticipated 98
additional mining and exploration projects that the withdrawal would have
prevented results in an estimated 1,764,000 acres for which the viewshed would be
impaired. The Court finds that this information is more than sufficient to
demonstrate that the cancellation of the withdrawal creates a substantial risk to
Plaintiffs’ members even though the 98 anticipated projects are expected to be
located on less than 10,000 acres of the withdrawal lands.
The cases relied on by Defendants are not to the contrary. In Summers v.
Earth Island Inst., 555 U.S. 488, 493-94 (2009), the Supreme Court found that the
plaintiff failed to establish standing where a member’s affidavit was not tied to
application of the challenged regulations, did not identify a particular site, and
8
Calculated using the formula for the area of a circle, 𝐴 = 𝜋𝑟 2 .
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related “to past injury rather than imminent future injury sought to be enjoined.”
Id. at 495. Similarly, in Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1256-57 (9th
Cir. 2010), the Ninth Circuit found that the plaintiff failed to establish standing
where a member’s declaration did not demonstrate a link between a particular
project and injury to the member’s future recreational or aesthetic interests.
In contrast to Summers and Rey, in the present case, as discussed above, the
information provided by Plaintiffs’ members’ declarations, and the BLM’s own
information, establish that the members have concrete plans to visit specific
portions of the withdrawal area, and that the cancellation of the withdrawal creates
a substantial risk of future harm to Plaintiffs’ members’ interests due to the impacts
of the anticipated 98 additional mining and exploration projects that the withdrawal
would have prevented. This is sufficient to establish the injury in fact necessary for
standing. See Jayne v. Sherman, 706 F.3d 994, 999-1000 (9th Cir. 2013) (finding
that plaintiffs had standing to challenge roadless rule because plaintiffs’ members
used the roadless area that received less protection under the rule and rejecting
argument that plaintiffs lacked standing because they did not allege a specific
project that would cause them harm, noting that “this is the only opportunity for
plaintiffs to challenge the programmatic rule and that challenge can not become
riper”).
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Plaintiffs have also established the other requirements for standing. The risk
of harm claimed by Plaintiffs’ members are traceable to the BLM’s cancellation
decision, which stopped consideration of the proposed withdrawal, and a favorable
outcome could alter the BLM’s decision to proceed with the withdrawal. The
additional requirements for associational standing are also met here. Sage grouse
and environmental conservation are germane to Plaintiffs’ organizational missions,
and there is no indication that the participation of individual members would be
helpful or necessary.
C. Reviewability under the APA
Defendants and Intervenors argue that the BLM’s decision is not reviewable
under the APA because (1) the decision is committed to agency discretion by law
under 5 U.S.C. § 702(a)(2); (2) there is no meaningful standard under which to
review the agency’s decision; and (3) Plaintiffs do not allege an underlying
statutory violation. The Court disagrees with their arguments and finds the BLM’s
decision reviewable under the APA.
The APA “creates a basic presumption of judicial review [for] one suffering
legal wrong because of agency action.” Weyerhaeuser Co. v. U.S. Fish & Wildlife
Serv., 139 S. Ct. 361, 370 (2018) (citations and internal quotation marks omitted).
“ ‘[L]egal lapses and violations occur, and especially so when they have no
consequence. That is why this Court has so long applied a strong presumption
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favoring judicial review of administrative action.’ ” Id. (quoting Mach Mining,
LLC v. EEOC, 135 S. Ct. 1645, 1652-1653 (2015)). This presumption may be
rebutted only if (1) the relevant statute precludes review, or (2) the action is
committed to agency discretion by law. Id. (citing 5 U.S.C. § 701(a)(1), (2)). At
issue here is the second exception—whether the action is committed to agency
discretion by law under § 701(a)(2).
The Supreme Court, in addressing reviewability of agency decisions, “has
noted the ‘tension’ between the prohibition of judicial review for actions
‘committed to agency discretion’ and the command in § 706(2)(A) that courts set
aside any agency action that is ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’ ” Weyerhaeuser, 139 S. Ct. at 370 (quoting
Heckler v. Chaney, 470 U.S. 821, 829 (1985)). “A court could never determine that
an agency abused its discretion if all matters committed to agency discretion were
unreviewable.” Id. Thus, “[t]o give effect to § 706(2)(A) and to honor the
presumption of review,” the exception in § 701(a)(2) is to be read “quite narrowly,
restricting it to ‘those rare circumstances where the relevant statute is drawn so that
a court would have no meaningful standard against which to judge the agency’s
exercise of discretion.’ ” Id. (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)).
Here, Plaintiffs’ challenge to the BLM’s cancellation decision is grounded in
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the BLM’s determination that the withdrawal was “no longer needed in connection
with a requested or proposed action” under 43 C.F.R. § 2310.1-4.9 This regulation
provides a meaningful standard by which to judge the BLM’s exercise of its
discretion. Specifically, the “in connection with” language of the regulation
indicates that the determination of whether the withdrawal “is no longer needed” is
to be viewed in connection with the purpose for which the lands were proposed to
be withdrawn, which, in the present case, was sage grouse conservation. See id; 80
Fed. Reg. 57, 635 (stating that the purpose of the withdrawal was to “to protect the
Greater Sage-Grouse and its habitat from adverse effects of locatable mineral
exploration and mining”).
The FLPMA provides additional reference points and policies to guide
judicial review of the BLM’s decision. See 43 U.S.C. § 1702(j) (“The term
‘withdrawal’ means withholding an area of Federal land from settlement, sale,
location, or entry, under some or all of the general land laws, for the purpose of
limiting activities under those laws in order to maintain other public values in the
9
Defendants argue that Plaintiffs raised this basis for APA review for the first time in
their reply brief and that the Court should therefore decline to consider it. Defendants’ argument
lacks merit. Plaintiffs raised this argument in their combined response/reply brief, and thus in
their response to Defendants’ motion for partial summary judgment, and Defendants have thus
had an opportunity to reply to the argument.
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area or reserving the area for a particular public purpose or program . . .”);
43 U.S.C. § 1701(a)(8) (setting out policy that “the public lands be managed in a
manner that will protect the quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and archeological values; that,
where appropriate, will preserve and protect certain public lands in their natural
condition; that will provide food and habitat for fish and wildlife and domestic
animals; and that will provide for outdoor recreation and human occupancy and
use”).
The regulations and statement of purpose for the withdrawal provide a
sufficiently meaningful standard against which to judge whether the BLM’s
decision that the withdrawal was “no longer needed” to conserve sage grouse was
arbitrary and capricious.
Moreover, courts have been willing to review a Secretary’s decision to adopt
a withdrawal application. See Nat’l Mining Ass’s v. Zinke, 877 F.3d 845 (9th Cir.
2017); Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745 (D.C. Cir. 2007).
And the Secretary’s decision to adopt a withdrawal proposal involves even greater
discretion than the BLM’s decision to cancel a withdrawal application, see 43
U.S.C. § 1714; 43 C.F.R. § 2310.3-3 (placing essentially no constraints on the
Secretary’s discretion to approve or reject a withdrawal proposal that is properly
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presented). If a Secretary’s decision to adopt a withdrawal application is
reviewable, then so too is a decision to cancel a withdrawal application based on an
agency’s determination that the withdrawal is “no longer needed in connection
with a requested or proposed action.”
The Court rejects Defendants’ additional argument that the BLM’s decision
is not reviewable on the independent basis that Plaintiffs have failed to cite to an
underlying statutory violation. First, as noted above, Plaintiffs’ challenge to the
BLM’s cancellation decision is grounded in BLM’s determination that the
withdrawal was “no longer needed in connection with a requested or proposed
action” under 43 C.F.R. § 2310.1-4. This regulation provides a meaningful
standard by which to judge BLM’s exercise of its discretion.
Second, both the Supreme Court and the Ninth Circuit have reviewed
agency decisions that did not involve an underlying statutory violation. For
example, in Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S.
Ct. 1891, 1905 (2020), the Government made a similar argument to Defendants’
argument here, which the Supreme Court rejected. The Court held that the
Department of Homeland Security’s decision to rescind DACA, which was an
agency-created policy, was reviewable under the APA. See id. at 1905-07. The
Court went on to hold that the agency’s recission of DACA “was arbitrary and
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capricious in violation of the APA.” Id. at 1915.
Other Supreme Court and Ninth Circuit decisions have also reviewed agency
decisions that did not involve an underlying statutory violation. See State Farm,
463 U.S. at 34, 57 (1983) (reviewing an agency’s change of policy under the APA
and finding that the agency violated the APA where it “failed to present an
adequate basis and explanation for” its change in policy, explaining that an
“agency changing its course must supply a reasoned analysis” for that change
(citation and internal quotation marks omitted)); Kake, 795 F.3d at 967, 969
(reviewing an agency’s change of policy under the APA and finding the agency
violated the APA where it failed to provide a reasoned explanation for that
change); Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v.
U.S. Dep't of Agr., 499 F.3d 1108, 1115 (9th Cir. 2007) (reviewing claim that
agency violated the APA during rulemaking).
Finally, Defendants’ reliance on Oregon Nat. Res. Council v. Thomas, 92
F.3d 792 (9th Cir. 1996), is misplaced. In Thomas, the Ninth Circuit held that an
agency’s decision to sell timber was committed to agency discretion under
§ 701(a)(2) and thus not subject to judicial review. Id. at 796, 798. The Ninth
Circuit rejected the plaintiffs’ argument that review of the sale could be conducted
under the “arbitrary and capricious” standard of §706(2)(A), independent of
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another statute, noting that “where there is no law to apply for purposes of section
701(a)(2) it is legally irrelevant whether an agency has made a finding that is
contrary to the evidence before it or that’s so implausible that it couldn’t be
ascribed to a difference in view or the product of agency expertise.” Id. at 798
(emphasis added). Thus, the Court was focused on § 701(a)(2) and the lack of any
standard to apply in judging the agency’s decision. In the present case, as discussed
above, a standard for reviewing the BLM’s decision is found in 43 C.F.R.
§ 2310.1-4.
THE BLM’S CANCELLATION DECISION
The Court now turns to the merits of Plaintiffs’ challenge to the BLM’s
decision to cancel the withdrawal application. Plaintiffs and Defendants both seek
summary judgment regarding this challenge. Plaintiffs argue that the cancellation
decision must be reversed because (1) the BLM’s cancellation decision was
arbitrary and capricious under the APA; and (2) the BLM’s cancellation decision
violated NEPA because the BLM issued the decision before completing the EIS
process. Defendants argue that their cancellation decision must be upheld because
(1) the BLM adequately explained that its cancellation of the withdrawal
application was based on new data and information; and (2) the BLM was not
required to finish the NEPA process because it had cancelled the withdrawal
proposal and there was thus no proposal before the agency.
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A.
Legal Standard
Summary judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Karuk Tribe of
Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc). Because
this is an administrative record review case, the Court may grant summary
judgment to either party based upon a review of the administrative record. Id.
Under the APA, the reviewing court must set aside the agency’s decision if
it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the
agency has relied on factors which Congress had not intended it to consider,
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. State Farm, 463 U.S. at 43; O'Keeffe's, Inc. v. U.S. Consumer
Product Safety Comm'n, 92 F.3d 940, 942 (9th Cir.1996). An agency action is also
arbitrary and capricious if the agency fails to articulate a satisfactory explanation
for its action including a rational connection between the facts found and the
choice made. Id.
An agency must set forth clearly the grounds on which it acted. See Atchison
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T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973). A court may not
accept an agency’s post hoc rationalizations for its action. State Farm, 463 U.S. at
50 (citation omitted). “It is well-established that an agency’s action must be
upheld, if at all, on the basis articulated by the agency itself.” Id. (citations
omitted).
Finally, because NEPA contains no separate provision for judicial review, an
agency’s compliance with NEPA is reviewed under the APA. Nw. Res. Info. Ctr.,
Inc. v. Nat'l Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir. 1995).
B.
The BLM’s cancellation decision was arbitrary and capricious in
violation of the APA.
Plaintiffs argue that the BLM’s decision to cancel the withdrawal application
violates that APA because the BLM (1) failed to offer a reasoned explanation for
reversing its prior position that a mineral withdrawal was necessary; and (2)
entirely failed to consider significant benefits of the withdrawal.
1. The BLM failed to provide a reasoned explanation for
reversing its prior position that the SFA mineral withdrawal
was needed.
When an agency changes its policy position, “the APA requires an agency to
provide more substantial justification when ‘its new policy rests upon factual
findings that contradict those which underlay its prior policy; or when its prior
policy has engendered serious reliance interests that must be taken into account.”
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Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 106 (2015). Failure to do so
renders its new policy arbitrary and capricious. Id.; see F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009) (“a reasoned explanation is needed for
disregarding facts and circumstances that underlay or were engendered by the prior
policy); Kake, 795 F.3d at 966 (“ ‘Unexplained inconsistency’ between agency
actions is ‘a reason for holding an interpretation to be an arbitrary and capricious
change.’ ”) (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 987, 981 (2005))).
Defendants and intervenors argue that Kake and Perez are inapplicable here
because the BLM’s change in position regarding the need for withdrawal was not a
change in policy within the meaning of these cases. They argue that the BLM and
the FWS are legally prohibited from making a withdrawal decision under the
FLPMA, that the withdrawal decision is vested in the Secretary, and that,
therefore, the BLM’s cancellation decision was not a change in policy. The Court
disagrees.
The agency at issue here is the BLM, not the Department of Interior, and the
policy at issue is whether the withdrawal was needed for sage grouse conservation.
In 2015, the BLM took the position that the withdrawal was needed for sage grouse
conservation and therefore submitted the application for withdrawal. In 2017, the
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BLM took the position that withdrawal was “no longer needed” for sage grouse
conservation and cancelled its application. The BLM’s change in position
regarding whether the withdrawal was needed for sage grouse conservation
requires a reasoned explanation. See Wild Wilderness v. Allen, 871 F.3d 719, 727
(9th Cir. 2017) (the change in policy test applies when agencies fail “to provide
reasoned explanations for changes in their position on matters of policy or factual
findings”); see also Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126
(2016) (noting an “unexplained inconsistency in agency policy is a reason for
holding an interpretation to be an arbitrary and capricious change from agency
practice”) (internal quotation marks, citation, and modifications omitted).
Plaintiffs contend that the BLM failed to provide a reasoned explanation for
its change in position regarding whether the withdrawal was needed. Plaintiff
argues first that Defendants failed explain why the BLM, in changing its position
regarding the need for the withdrawal, disregarded prior expert and agency
findings about the need for the withdrawal to protect against even incremental
losses of SFA and that even incremental habitat losses could appreciably diminish
prospects for sage grouse recovery. They contend that the record shows
overwhelmingly that, to adequately protect the sage grouse, the priority habitats
must be closed to new mining, and that the BLM failed to explain why these
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considerations no longer rendered the withdrawal necessary. The Court agrees.
The Nedd Memo sets forth the reasons for the BLM’s cancellation decision.
The Memo states that the withdrawal is not needed because only 0.1%, or 10,000
acres of disturbance from locatable mining and exploration is expected over the
next 20 years in the proposed withdrawal area of 10 million acres, and “there is no
way to predict with any specificity where such development would occur.”
(SFA_4-5.) However, as Plaintiffs point out, the minimal footprint of mining
disturbance was already known to the BLM when it proposed the withdrawal, and
the USGS survey about locatable mining was available at the time the DEIS was
published. Thus, the minimal footprint of the expected locatable mining in the
withdrawal area and the inability to know with specificity where that mining will
occur do not provide a reasoned explanation justifying the BLM’s change in
position.
Nonetheless, Defendants argue that the 0.1% referred to in the Nedd Memo
is based on new data and provides a reasoned explanation for the change in
position regarding the need for the withdrawal. Specifically, Defendants argue that
the 0.1% figure that was known at the time of the withdrawal application was a
rangewide figure and accounted for the impacts of all mining. Defendants argue
that, in contrast, new data revealed that 0.1% of SFAs were expected to be
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impacted by locatable mining. (Dkt. 239-1 at 2 (“In 2010, FWS thought all
mining—not just locatable mineral mining—could disturb 0.1% of all sage-grouse
habitat rangewide. SFA 10064. What BLM discovered after collecting more data
is that locatable mineral mining was likely to disturb 0.1% of SFAs, the only lands
proposed for withdrawal.”).) Defendants also note that sage grouse occupy
approximately 164 million acres, compared to the 10 million acres of SFA
proposed for withdrawal. (Dkt. 249 (citing SFA_18460).)
The Court does not find this “new data” explanation to be a reasoned
justification for the BLM’s change in position regarding the need for the
withdrawal. Specifically, the previous data Defendants say the BLM relied on
showing that 0.1% of 164 million acres would likely be impacted meant that less
than 0.1% of the 10 million acre SFA area could be impacted. Further, that this
0.1% impact was from all forms of mining meant that the impact from only
locatable mining would be less than 0.1%. In contrast, the new data that
Defendants say the BLM relied upon showing that 0.1% of SFA area would likely
be impacted and that all of that expected impact was attributable to locatable
mining means that the impact in the SFA area could be even greater than the
previous data showed. Simply put, the new data showed that the impacts from
locatable mining was more significant than the previous data showed. The new
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data does not, therefore, provide a reasoned explanation for the BLM’s change in
position regarding the withdrawal. If anything, this new data indicated a greater
need for the withdrawal from locatable mining than the previous data.
The Nedd Memo also states that, based on the BLM’s updated analysis, it
determined that the potential effects on the sage grouse “habitat, leks, and
population from locatable mineral exploration and development under any
alternative (including No Action) would be minimal.” (Randwide_9-10.) The
Memo goes on to explain that, under the no action alternative, “only 0.58 percent
of male GRSG and 0.95 percent of leks potentially affected annually” and that,
when comparing these impacts with the “relevant thresholds and associated
adaptive management triggers in the 2015 ROD’s and LUP [land use plan]
amendments, the potential effects remain significantly less than ‘minor.’ ”
(Rangwide_9-10.) There are numerous problems with this explanation for the
change in position regarding the need for the withdrawal.
First, the BLM has not provided a reasoned explanation for its change in the
definition of “minor” impacts in the AFEIS. Defendants argue that they retained
the same definition for “minor” in the DEIS and the AFEIS. However, a
comparison of the definitions of both “minor impacts” and “moderate impacts” in
the DEIS and the AFEIS demonstrates that Defendants’ argument is fatally flawed.
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Those definitions (plus the definition of major impacts) are as follows:
Impact
Minor
DEIS definitions
Impacts that would affect less
than 1 percent of the leks,
habitat, or population numbers
within the SFA withdrawal
area, within a specific SFA, or
within a state would be
considered minor.
AFEIS definitions
Impacts that would affect less than
1 percent of the leks, habitat, or
population numbers within the
analysis area (which includes the
SFA withdrawal area plus the
additional area outside of the SFAs
proposed for withdrawal by the
Governor of Nevada), within a
specific SFA, or within a state
would be considered minor.
Moderate Impacts that would affect more Annual population drops by 40
than 1 percent but less than 3
percent or greater in a single year,
percent of the leks, habitat, or or annual population drops by 10
population numbers within the percent or greater for three
SFA withdrawal area, within a
consecutive years, within the
specific SFA, or within a state
analysis area, within a specific
would be considered moderate. SFA, or within a state would be
considered moderate.
Major
Impacts that would affect more Annual population drops by 60
than 3 percent of the leks,
percent or greater in two
habitat, or population numbers consecutive years, or annual
within the SFA withdrawal
population drops by 20 percent or
area, within a specific SFA, or
greater for three consecutive
within a state would be
years, within the analysis area,
considered major.
within a specific SFA, or within a
state would be considered major.
(SFA_14876 (DEIS); SFA_17374 (AFEIS).)
Although the definition of minor impacts in the DEIS and AFEIS appears, at
first glance, to be essentially the same, the AFEIS’s change in the definition for
moderate impacts reveals that the effective definition of minor impacts in the
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AFEIS is significantly different than in the DEIS. Specifically, the AFEIS defines
moderate impacts as those impacts where the population drops by 40% or greater
in a single year, or by 10% or greater each year for 3 consecutive years. This
means that anything below that level, i.e., population drops of up to but less than
40% in a single year, and up to but less than 10% each year for 3 consecutive
years, would necessarily fall into the category of a “minor” impact under the
AFEIS.10 In contrast, under the DEIS, a minor impact was defined as anything that
reduces population by less than 1%, and a moderate impact as anything that
reduces population by 1% or more and less than 3%.
Defendants explain that the changes in the definition of “minor,”
“moderate,” and “major” impacts in the AFEIS were based on hard and soft
triggers in the 2015 Plan Amendments (citing AFEIS, SFA_17373-74). However,
the BLM has failed to provide a reasoned explanation for why these changes in
definition were needed or appropriate.
Defendants also argue that the changes in the definitions of minor, moderate,
and major impacts are “inapposite” because the Nedd Memo relies only on updated
Defendants acknowledge the “gap” between the AFEIS’s definition of minor and
moderate, but contend that this gap merely illustrates that the AFEIS was not final and was
subject to further review. Defendants provide no further explanation for the broad expansion of
the effective definition of minor impacts in the AFEIS.
10
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lek, population, and acreage numbers from the AFEIS to find that impacts are
minimal and does not adopt the “minor,” “moderate,” and “major” definitions or
thresholds from either the DEIS or AFEIS. That the Nedd Memo used the term
“minimal” does not, however, provide a reasoned explanation as to why impacts
that would have been deemed to be major impacts under the DEIS and to thus
justify the withdrawal were now deemed to be “minimal” and to thus not justify
the proposed withdrawal.
Moreover, the Nedd Memo also specifically states that “the potential effects
remain significantly less than ‘minor.’” (Rangewide_10.) The use of the word
“minor” in quotation marks in the Nedd Memo indicates reliance on the definition
of “minor” in the AFEIS. Further, although the Nedd Memo refers to the triggers
in the 2015 RODs and LUP amendments in connection with the use of the term
minor, this merely appears to reiterate the AFEIS basis for changing the definition
of minor. Moreover, whether the triggers were used in the Nedd Memo with or
without reference to the AFEIS definition of minor does not change the fact that
the Nedd Memo used a changed definition of what is deemed to be a minor impact
and did not provide a reasoned explanation for this change, rendering the
cancellation decision arbitrary and capricious.
Defendants argue that the Nedd Memo “merely concludes based on the raw
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data that the proposed withdrawal of 10 million acres is not necessary or justified
based on its minimal benefits of preventing at most 7,121 acres of surface
disturbance benefitting less than 0.5% of leks and male sage-grouse per year.” As
discussed above, the minimal footprint of mining disturbance was already known
to the BLM when it proposed the withdrawal and this minimal footprint does not,
therefore, provide a reasoned explanation for the BLM’s change in position
regarding whether the withdrawal was needed for sage grouse conservation.
As to the reliance on a per-year percentage of leks and males impacted, the
Nedd Memo again fails to provide a reasoned explanation. There is no explanation
as to why the BLM was disregarding all of the prior expert findings and the DEIS
regarding the need for the withdrawal based on the expected cumulative impacts
over 20 years of mining activity and the urgent need to avoid even an incremental
loss of population or habitat—the urgent need to “stop the bleeding of continued
population declines and habitat losses.” (SAF_18485-46.) Instead, without any
reasoned explanation as to why the BLM was changing its approach, the Nedd
Memo (and AFEIS) divides the cumulative expected impacts by 20 years and uses
the resulting per-year figure to deem the impacts “minor.” (Rangewide_10.) The
Nedd Memo’s failure to provide a reasoned explanation for this change to an
annualized metric rather than a cumulative metric renders its cancellation decision
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arbitrary and capricious.11
The Nedd Memo also states that cancellation is supported by the fact that
locatable mineral exploration and mining is not a primary threat to sage grouse or
sage grouse habitat, and that mining (locatable, leasable, and salable minerals
mining) is merely one threat among several other threats, including wildland fire
and grazing. (Rangewide_13.) In support, the Nedd Memo cites to the October 2,
2015, not warranted finding of the FWS. (Id. (citing 80 fed. Reg. 59858, 59916).)
This information regarding other threats was thus known to the BLM at the time
the withdrawal was deemed to be needed for sage grouse application. The
information does not, therefore, provide a reasoned explanation for the BLM’s
2017 change in position regarding the need for the withdrawal. Further, as
Plaintiffs point out, wildfires and mining are not an either/or proposition—the sage
grouse will be impacted by both. The record also demonstrates that a withdrawal
11
As noted above, the DEIS projected that without the withdrawal, 33% of leks and 32%
of males in the SFA withdrawal area would be impacted by locatable mining and exploration
projects, and the AFEIS projected that 15% of all leks and 12% of all males would be impacted.
(SFA_14482, 14483, 17382.) In contrast, with the withdrawal, the DEIS projected that only 20%
of leks and 19% of males would be impacted; and the AFEIS projected that only 3% of leks and
2% of males would be impacted. (ibid.) Thus, under the DEIS, the proposed withdrawal was
expected to avoid impacts to 14% of all leks and 12% of all males in the withdrawal area; and
under the AFEIS, the proposed withdrawal was expected to avoid impacts to 12% of all leks and
9% of all males in the withdrawal area. (See ibid.; Pl. SOF § 40.) Under the DEIS definition, the
withdrawal would have a major positive impact on sage grouse conservation.
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could potentially decrease wildfires. (SFA_14863 (DEIS stating that the indirect
effects of mining related activities include the introduction and spread of invasive
species, which have the potential to increase the risk of wildfire).)
Moreover, it is well established that the principal threat to sage grouse is
habitat loss and fragmentation. See 80 Fed. Reg. 59,934. Both mining and wildfire
contribute cumulatively to this threat. That habitat loss and fragmentation in the
SFA withdrawal area has already occurred due to wildfire does not lessen the need
for the withdrawal. To the contrary, it would reasonably be viewed as increasing
the need to stop additional cumulative habitat loss and fragmentation, and thus
increasing the need for the withdrawal. The impacts of wildfire, and other threats
to sage grouse and their habitat, does not, therefore, provide a reasoned explanation
for the BLM’s change in position regarding the need for the withdrawal.
Finally, Defendants contend that the BLM based its cancellation decision on
“substantial additional mining specific data and analysis including the USGS
Report, the RFD, the DEIS, and the AFEIS.” (Dkt. 239-1 at 15.) However, the
USGS Report and the RFD were both available at the time that the DEIS was
published, and the DEIS supported the withdrawal as needed for sage grouse
conservation. These documents do not, therefore, support the BLM’s change of
position regarding the need for the withdrawal. And, to the extent the Nedd Memo
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was relying on analysis of data in those previous documents to come to a different
conclusion regarding the need for the withdrawal, the Memo does not provide a
reasoned explanation of that analysis.12
The Court has considered in depth the reasons given by the Nedd Memo for
cancelling the withdrawal application.13 The Court finds that the reasons given do
not provide the reasoned explanation needed to support the BLM’s change in
position regarding the need for the withdrawal, rendering the cancellation decision
arbitrary and capricious.
2. The BLM failed to account for serious reliance interests in
cancelling its withdrawal application.
Plaintiffs contend that in making its decision to cancel the withdrawal, the
BLM failed to account for the FWS’s serious reliance interests in the proposed
withdrawal. In response, Defendants argue that the FWS did not and could not
have relied on the proposed withdrawal because the FWS knew that any
12
Further, as discussed above, the BLM has failed to provide reasoned explanations for
the changes in the AFEIS regarding the definitions of minor, moderate, and major impacts to
sage grouse populations, and to the change to an annualized metric as opposed to a cumulative
metric for impacts. Thus, this information from the AFEIS does not provide a reasoned
explanation.
13
The Court has also considered the arguments of the Intervenors in support of their
position that cancellation of the withdrawal application was appropriate. These arguments fail to
demonstrate that the BLM, and specifically the Nedd Memo, provided a reasoned explanation for
the BLM’s change of position regarding the need for the withdrawal.
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withdrawal was contingent on further analysis and a decision by the Secretary.
The Defendants are wrong. The record is clear that the FWS did rely on the
proposed withdrawal in making its 2015 finding that the listing of the sage grouse
as a threatened or endangered species “is not warranted at this time.” 80 Fed. Reg.
59936. In making its not warranted finding, the FWS stated:
Within the areas of greatest conservation importance (SFAs), DOI
will recommend withdrawal from locatable mineral entry. We support
the recommendations for mineral withdrawal in SFAs that would
remove potential impacts on approximately 4 million ha (10 million
ac) of sage-grouse habitat. . . . These measures minimize mining
impacts in priority habitats for the life of the management plans,
estimated to be the next 20 to 30 years. Based on what we know
today, no mining activities are likely to result in loss of these
important areas for conservation, but we recognize that economic
changes or technological advances may increase the risk of
development in the future. Therefore, the long-term protection of the
sage-grouse habitat in the SFAs from locatable mineral development
will ensure that these important populations are conserved into the
future.
80 Fed. Reg. 59916.
In DEIS comments submitted in March 2017, the FWS reiterated its
reliance. Specifically, it stated that the “planned withdrawal was included and
relied upon in the [FWS’s] 2015 not warranted finding to show the reduction in
risk of habitat loss and fragmentation due to locatable mineral development in
GRGS habitat.” (SFA_16936.) The FWS comments went on to note that “the SFAs
identified by the BLM remain important areas for GRSG. Prioritization of habitat
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availability and connectivity in these areas remain important.” (SFA_16937.) The
FWS also explained that many of the “SFAs provide connectivity between GRSG
populations. Loss of connectivity in these areas would likely result in population
isolation with associated loss of genetic diversity and long-term population
persistence. The [FWS] supports protecting SFAs from fragmentation and limiting
development in SFAs to keep an intact sagebrush landscape.” (Id.)
Thus, the FWS relied on the proposed withdrawal in making its not
warranted finding. And there is no argument or evidence that the FWS’s reliance
on the proposed withdrawal was considered by the BLM in its decision to cancel
the withdrawal.
Defendants also argue that Plaintiffs’ reliance argument is an improper
attempt to “commandeer the alleged interests of another agency for their own
purposes,” and that “the FWS is perfectly capable of vindicating its own reliance
interests if they exist.” The Court disagrees. Indeed, it is difficult to envision a
legal process by which one agency could challenge, on reliance grounds, decisions
made by another agency within the same administration. The court concludes that
Plaintiffs can raise the serious reliance interests of public agencies, such as the
FWS, in arguing that the BLM failed to adequately consider serious reliance
interests when it changed its position. See United Farm Workers v. Perdue, 2020
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WL 6318432, at *10-*11 (E.D. Cal. Oct. 28, 2020) (relying on serious reliance
interests of public agencies and private parties in the defendant agency’s previous
practice and finding that the defendant agency’s “conclusory statements” regarding
that reliance were insufficient to explain its decision to change its previous
practice).14
Defendants further argue that even if FWS relied on the proposed
withdrawal, the remedy for that reliance is the FWS’s reconsideration of its not
warranted determination, not the vindication of the FWS’s reliance interests in this
lawsuit, to which the FWS is not a party. The Court, again, disagrees. While the
FWS may want to reconsider its not warranted determination in light of the BLM’s
cancellation decision (and other changes in sage grouse conservation efforts made
by the BLM), this potential reconsideration does not negate the BLM’s obligation
to take the FWS’s reliance into account in changing its position regarding the need
for the withdrawal and making the decision to cancel the withdrawal.15
14
Although not argued by Plaintiffs, the Court notes that Plaintiffs and/or other private
parties may have also relied on the proposed withdrawal in making decisions on whether and
how to challenge the FWS’s not warranted decision.
15
Defendants also point out that the FWS explained in its not warranted determination
that the FWS would “work with our Federal and State partners to conduct a sage-grouse status
review in 5 years.” (Dkt. 239-1 at 23 n.8 (citing SFA_10090).) In their opening brief, Defendants
represented that the referenced five-year review “will occur this year, 2020.” (Id.) However, as
(Continued)
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In sum, there were serious reliance interests in the BLM’s proposed SFA
mineral withdrawal. The BLM failed take those interests into account in making its
cancellation decision. The BLM’s change of position regarding the need for the
withdrawal and resulting cancellation decision was therefore arbitrary and
capricious.
C.
The BLM failed to consider significant benefits of the withdrawal.
The arbitrary and capricious standard requires an agency to “examine the
relevant data and articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice made.’ ” State Farm,
463 U.S. at 43. To meet this requirement, the agency must consider the “important
aspect[s]” of the problem before it. Id. The failure to do so renders the agency’s
decision arbitrary and capricious. Id. (agency decision is arbitrary and capricious
where 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).
Plaintiffs point out, and Defendants concede in their reply brief, the FWS canceled that five-year
status review in early December 2018, almost 18 months before Defendants initially represented
that the review was going to occur in 2020. (Dkt. 245 at 35; Dkt. 249 at 27 n.9.)
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Plaintiffs contend that the BLM’s cancellation decision entirely failed to
consider the following important environmental considerations: (1) functional
habitat loss, (2) loss of population connectivity, and (3) the concentrated nature of
mining impacts and potentially severe localized impacts.
1. Functional habitat loss.
Plaintiffs argue that the BLM failed to account for functional habitat loss
and thus greatly discounted the true extent of SFA habitat that would be lost to
mining absent a withdrawal.
The record establishes that mining causes both direct habitat loss by
physically removing vegetation within the footprint of the mining operation and
associated infrastructure, and functional habitat loss beyond the mine’s physical
footprint. This functional habitat loss falls into two categories: habitat
fragmentation and behavioral avoidance. (SFA_9915; 75 Fed. Reg. 13927.)
Habitat fragmentation is an important consideration for sage grouse
conservation. As the DEIS and AFEIS recognized:
Habitat fragmentation of greater sage-grouse and other wildlife habitat
is an important consideration. Habitat fragmentation can affect
seasonal habitat use (i.e., nesting/brooding and winter) and disrupt the
connectedness of populations (i.e., leks and migration patterns) or use
areas. Because greater sage-grouse are highly sensitive to habitat
fragmentation, development, or changes in habitat conditions and
because greater sage-grouse require large, intact habitat to complete
their annual life history, alternatives proposing to protect (in this case,
through withdrawal) greater sage-grouse habitat from disturbance are
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considered of greatest beneficial impact.
(SFA_14877 (DEIS); SFA_17375 (AFEIS); see SFA_9915.)
Behavioral avoidance occurs when disturbances or activities cause sage
grouse to avoid otherwise suitable habitat. (SFA_9915.) Such activities and
disturbances include noise, such as from blasting or from roads, visual
disturbances, pollutants, and areas with increased predators/predation risks due to
human-made structures, such as powerlines and fences. (SFA_9916, 9917, 9918
(FWS 2010 finding); SFA_14877-78 (DEIS); SFA_17376 (AFEIS).)
Defendants do not dispute that functional habitat loss is an important
consideration but instead argue that the BLM understood that habitat loss is not
limited to the footprint of a mine, and that the “no action” (no withdrawal)
alternative would result in additional habitat alteration and fragmentation than the
other alternatives. Defendants also point out that the DEIS and AFEIS calculated
the potential habitat fragmentation under the various alternatives. And, in
determining the number of leks and birds impacted by the potential mining and
exploration activities, the BLM included those leks and birds within a 3.1 mile
buffer of the disturbed area to account for indirect impacts, such as noise and
visual intrusion, that could result in avoidance or behavioral changes. Defendants
further contend that because the locations and size of future mining operations is
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unknown, the BLM estimated the functional habitat loss and other indirect impacts
based on available data—lek and population numbers—instead of speculating
about future mining in a 10 million-acre area. Finally, Defendants contend that
Plaintiff’s argument comes down to an attack on the BLM’s methodology. In
support of their contentions, Defendants cite to the AFEIS and the Nedd Memo.
As to the AFEIS, Defendants cite to various points in the AFEIS where
habitat fragmentation is mentioned and discussed, but none of these citations show
that the BLM considered the functional habitat loss that could occur from locatable
mining and exploration projects. (See Dkt. 239-1 at 24-25 (citing SFA_16975,
17262, 17269, 17291, 17374-76, 17378, 17382); Dkt. 249 at 28-29 (citing
SFA_17375-76, 17380-82).) Defendants also point out that the BLM used a 3.1
mile buffer around leks and birds to estimate functional habitat loss. (See
SFA_17376 (“[W]e defined the potential indirect impacts to sage grouse as the
number of leks within 3.1 miles of the potential area for disturbance.”).)
These citations to the AFEIS do not, however, demonstrate that the BLM
actually considered functional habitat loss that could occur from locatable mining
in making its cancellation decision. The Nedd Memo, which sets forth the basis for
the cancellation decision, does not mention or indicate that functional habitat loss
was considered. To the contrary, the Memo discussed only direct disturbance from
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locatable mining and exploration and noted this direct disturbance repeatedly. (See
Rangewide_5 (noting the small footprint of the mining disturbances);
Rangewide_5 (the BLM “can only foresee less than 10,000 acres of disturbance”);
Rangewide_10 (“the effects on GRSG habitat of locatable mineral exploration and
mining over the proposed 20-year withdrawal period are estimated to be less than
0.1 percent of the 10 million acres, with only 0.58 percent of male SRSG and 0.95
percent of leks potentially affected annually”); Rangewide_13 (“the possible
adverse effects from locatable mineral exploration and mining has now been
quantified, and found to be limited to approximately 9000 acres of surface
disturbance over 20 years, with approximately 0.58 percent of GRSG male birds
affected per year”); Rangewide_14 (“That is, even the approximately 9000 acres of
disturbance anticipated under the No Action Alternative is likely on the high
side.”); Rangewide_15 (“[T]he withdrawal of less than 10 million acres in order to
prevent approximately 9000 acres of disturbance is not the best use of this tool.”).)
Although the Nedd Memo also cited to the annual loss of leks and birds that would
result from locatable mining (Rangewide_10, 13), which is taken from the AFEIS,
there is no indication that the Memo linked this to functional habitat loss or that the
amount of functional habitat loss was otherwise considered in the cancellation
decision.
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Moreover, as discussed previously, the use of annual loss of leks and birds,
as opposed to cumulative losses over the 20 year period, is itself arbitrary and
capricious, and does not demonstrate that the BLM actually considered functional
habitat loss in making its decision to cancel the withdrawal.
Finally, although the quantification of functional habitat loss under the
various alternatives may have been difficult given the lack of information about the
exact location and size of future mining and exploration projects, this difficulty
does not allow the BLM to disregard and fail to consider these impacts. See Public
Citizen v. Federal Motor Carrier Safety Admin. Pub. Citizen, 374 F.3d 1209, 1219
(D.C. Cir. 2004) (“The mere fact that the magnitude of time-on-task effects is
uncertain is no justification for disregarding the effect entirely.”).
In sum, the BLM failed to consider functional habitat loss in making its
determination that the withdrawal was no longer needed and deciding to cancel the
withdrawal application. The failure to do so renders the BLM’s cancellation
decision arbitrary and capricious.
2. Loss of population connectivity.
Plaintiffs argue that the BLM entirely failed to consider the impacts of
mining on genetic connectivity between sage grouse populations and resulting
harm to species persistence.
Connectivity refers to the ability of sage grouse to intermingle with
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neighboring populations. Loss of connectivity can increase population isolation
and result in the loss of genetic diversity and extirpation from stochastic events,
such as drought or wildfire. (SFA_9911.) Human development, such as a mine
pits, powerlines, and roads, results in habitat fragmentation and decreased
connectivity. (SFA_9945.) “Small decreases in lek connectivity [can result] in
large increases in the probability of lek abandonment.” (SFA_9911.) “Therefore,
maintaining habitat connectivity and sage-grouse population numbers are essential
for sage-grouse persistence.” (Id.)
The FWS commented, in relation to the DEIS, that the BLM needed to
consider the “increased risk of fragmentation and loss of connectivity that could
occur due to the direct loss of habitat” (SFA_16948); the importance of prioritizing
and preserving habitat availability and connectivity in SFAs and that many SFAs
provide connectivity between sage grouse populations (SFA_16937); and that the
loss of connectivity in SFAs “would likely result in population isolation with
associated loss of genetic diversity and long-term population persistence” (id.).
Plaintiffs contend that, despite these FWS comments, the BLM entirely
failed to consider connectivity in making its cancellation decision and instead
totally disregarded this issue.
Defendants respond that connectivity is another facet of habitat
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fragmentation because habitat fragmentation reduces population connectivity.
They further argue that the BLM discussed habitat fragmentation and the
associated lack of connectivity in both the DEIS and the AFEIS. In support,
Defendants provide various citations to the DEIS and AFEIS. Although the cited
sections of the AFEIS discuss connectivity generally, missing is any consideration
of the loss of genetic connectivity among sage grouse populations and the resulting
harms to species persistence that may result without a withdrawal.16
Defendants again rely on the uncertainty in knowing where future mineral
exploration and mining activity may occur as a reason for not considering with
16
For example, Defendants cite a portion of the AFEIS, which in turn cites the FWS
2015 not warranted finding in which the FWS identified areas of high and moderate mineral
potential as important for withdrawal because, among other things, the areas “have high breeding
bird densities and provide important connectivity between greater sage-grouse populations.”
(SFA_17261-62.) The BLM cites to another portion of the FWS not warranted finding that states
PHMA areas provide connectivity corridors for populations to interact and interbreed. (Id.) Yet
another citation is to a portion of the AFEIS that states population declines due to fragmentation
of sagebrush habitat. (SFA_17269.) Another citation is to a portion of the AFEIS stating that the
proposed withdrawal could have beneficial impacts to wildlife, including sage grouse, and
associated habitat as indicated by “connected populations.” (SFA_17291.) Another citation is to
a portion stating, “Habitat fragmentation can affect seasonal habitat use (i.e., nesting/brooding
and winter) and disrupt the connectedness of populations (i.e., leks and migration patterns) or use
areas,” and “Habitat fragmentation or greater sage-grouse habitat—this could include
fragmentation of seasonal habitats (i.e., nesting/brooding and winter) and connected populations
(i.e., leks)”—was used as an indicator of potential impacts to wildlife. (SFA_17375-76.) Finally,
Defendants cite to a response in the AFEIS to a comment that the BLM should address the
importance of withdrawn areas in providing connectivity to habitat and migratory corridors for
grizzly bear, big game, and other wildlife. That response is: “The importance of sagebrush
habitat for connectivity (reduction in fragmentation) and migratory wildlife is discussed in the
EIS in Section 3.7.3 and extensively in Section 4.5.” (SFA_17587-88.)
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more specificity the impacts on connectivity. However, the FWS comments make
clear that consideration of such impacts was possible despite the uncertainty of the
location and size of future mining and exploration projects. That the FWS stated in
its comments that the effect of mining and exploration on connectivity could be
“minor to major” “depending on where exactly the disturbance impacts occur”
(SFA_16948) does not excuse the BLM from considering impacts on genetic
connectivity among sage grouse populations and resulting harm to species
persistence.
Finally, as noted previously, the FWS made comments regarding the
importance of connectivity, the impacts of loss of connectivity in SFAs, including
in particular areas identified in the comments, and the need for BLM to discuss the
increased risk of fragmentation and the loss of connectivity that could occur due to
direct habitat loss (see, e.g., SFA_16937, 16940, 16948). The AFEIS failed to
address these comments or otherwise consider the impacts on connectivity of
mining and exploration activity.
Moreover, and more importantly, the Nedd Memo, which sets forth the
BLM’s reasons for the cancellation decision, fails to indicate any consideration of
the impact of mining and exploration on genetic connectivity.
In sum, there is no indication that the BLM considered the impacts of
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locatable mining and exploration activity on genetic connectivity despite the
importance of connectivity to species persistence, and despite comments from the
FWS that the BLM needed to consider the increased risk of fragmentation and loss
of connectivity, and stressing the importance of connectivity, the impacts that loss
of connectivity could have on genetic diversity and long-term population
persistence, and the potentially major impacts of mining on connectivity. The
failure to address the FWS’s connectivity concerns in the AFEIS, and failure to
consider genetic connectivity concerns in making the cancellation decision renders
that decision arbitrary and capricious. See State Farm, 463 U.S. at 43; Ocean
Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 866 (9th Cir. 2005)
(agency finding arbitrary and capricious where agency failed to address concerns
expressed by FWS); Sierra Club v. Van Antwerp, 661 F.3d 1147, 1156-57 (D.C.
Cir. 2011), as amended (Jan. 30, 2012) (agency decision was arbitrary and
capricious where agency failed to address habitat fragmentation risks raised in
FWS comments).
3. Possibly severe localized impacts.
Finally, as Plaintiffs point out, the BLM entirely failed to consider the
possibility of severe localized impacts of mining activities. As noted previously,
the Nedd Memo focused only on an overall figure for impacts based on the
percentage of the total withdrawal area that was expected to be impacted by
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surface disturbance. This rangewide approach diluted the localized impacts of
mining activities and failed to discuss or acknowledge the greater percent of
habitat that will be lost in a localized or regional area of high mineral potential.
There is no discussion or acknowledgement in the Nedd Memo that the 0.1%
figure does not represent the destruction of habitat that will occur in particular
areas, that a particular mining or exploration project, or group of projects, may
have major impacts on SFA areas with high mineral potential, and the
compounding effects of these projects in areas that have already been ravaged by
wildfire or have already tripped hard triggers.
Defendants once again rely on the inability to predict the location and scope
of future exploration and mining activities, and argue that any analysis by the BLM
of localized impacts would be pure speculation. However, the issue is not that the
BLM failed to quantify or pinpoint where the localized impacts from future mining
and exploration projects could occur. The problem is that BLM failed to consider
altogether the localized impact that such projects could have in a more general way
based on the information it did have. Its failure to do so renders its cancellation
decision arbitrary and capricious.
Because the BLM’s cancellation decision was arbitrary and capricious, the
Court will vacate the BLM’s cancellation of the withdrawal application and
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remand to the BLM for further proceedings, including re-initiation of the NEPA
process.
D.
The BLM did not violate NEPA by making the cancellation
decision before completing the EIS process.
NEPA requires that federal agencies include an environmental impact
statement “in every recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C); see 40 C.F.R. § 1502. The Department of
Interior also has an implementing regulation requiring preparation of “an
environmental impact statement for each proposed major Federal action
significantly affecting the quality of the human environment before making a
decision on whether to proceed with the proposed action.” 43 C.F.R. § 46.400.
Plaintiffs argue that the BLM violated NEPA by making the decision to
cancel the withdrawal application before it completed the EIS process. Before
addressing this issue on the merits, the Court must first determine whether the
issue is moot.
As noted above, the Court is vacating the BLM’s cancellation and
remanding to the BLM for further proceedings, including the re-initiation of the
NEPA process. This decision would moot Plaintiffs’ claim that the BLM violated
NEPA by failing to complete the NEPA process prior to cancelling the withdrawal,
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unless the claim falls within the “capable of repetition, yet evading review”
exception to the mootness doctrine. See Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969, 1976 (2016) (setting out exception to mootness doctrine for
controversies that are “capable of repetition, yet evading review”). To fall within
this exception, the NEPA violation claim must meet two requirements: “(1) the
duration of the challenged action is too short to allow full litigation before it
ceases, and (2) there is a reasonable expectation that the plaintiffs will be subjected
to it again.” Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1173 (9th
Cir. 2002)). The Court finds that these requirements are met and that Plaintiffs’
NEPA violation claim is accordingly subject to review.
First, the time between when the BLM decides that a withdrawal is no
longer needed and when the BLM cancels the withdrawal application is too short
to allow full litigation. See Badgley, 309 F.3d at 1173. This is because an agency is
required to “promptly” cancel a withdrawal application upon determining that the
lands proposed for withdrawal are “no longer needed in connection with a
requested or proposed action.” 43 C.F.R. § 2310.1-4. Second, there is a reasonable
expectation that the issue will arise again in the future because the BLM may again
decide to cancel the withdrawal without completing the NEPA process. See
Badgley, 309 F.3d at 1173. Accordingly, the Court has jurisdiction over and will
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proceed to address Plaintiffs’ NEPA violation claim.
Plaintiffs argue that the BLM was required to complete the EIS process
before cancelling the withdrawal application. However, Plaintiffs have cited to no
case law that supports this argument, and the case law is clear that “[d]iscretionary
agency action that does not alter the status quo does not require an EIS.” Nat'l
Wildlife Fed'n v. Espy, 45 F.3d 1337, 1344 (9th Cir. 1995); see Kootenai Tribe of
Idaho v. Veneman, 313 F.3d 1094, 1114 (9th Cir. 2002) (“NEPA procedures do not
apply to federal actions that maintain the environmental status quo.”), abrogated
on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir.
2011). The reason for this is made clear by the language of NEPA—maintaining
the status quo does not “significantly affect[] the quality of the human
environment.” 42 U.S.C. § 4332(2)(C); see also Confederated Tribes and Bands v.
F.E.R.C., 746 F.2d 466, 476 (9th Cir.1984) (an EIS is generally only required
where there is an irreversible and irretrievable commitment of a public resource,
rather than a mere continuation of the status quo).
Further, the mere fact that the BLM had started the EIS process does not
mean that it was required to complete the process before deciding to cancel the
application. See Louie v. Dickson, 964 F.3d 50, 56 (D.C. Cir. 2020) (“[T]he FAA
notified the Airport Authority that it had closed its file on the EA due to
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insufficient progress and deemed the Authority's application for an Airport
Operating Certificate withdrawn. Accordingly, the FAA no longer needs or intends
to prepare a commercial service EA, as no application for an Operating Certificate
remains pending.”); cf. West v. Horner, 810 F. Supp. 2d 228, 234 (D.D.C. 2011)
(NEPA challenges to a proposed highway project were moot where project
applicant withdrew proposal). Indeed, as Defendants point out, federal agencies
routinely cancel the NEPA process for proposed projects that they choose not to
pursue. See, e.g., 84 Fed. Reg. 13,712 (Apr. 5, 2019) (terminating NEPA process
after agency cancelled planning process); 83 Fed. Reg. 23,664 (May 22, 2018)
(terminating NEPA process after the agency decided not to pursue project); 82 Fed.
Reg. 61,324 (Dec. 27, 2017 (terminating EIS after agency cancelled planning
process); 79 Fed. Reg. 64,586 (Oct. 30, 2014) (terminating NEPA process after
preparation of DEIS because agency decided not to pursue project at this time).
Plaintiffs rely on the language of the regulation implementing NEPA’s EIS
requirement, and specifically point to the use of the term “whether” in that
regulation. See 43 C.F.R. § 46.400 (requiring an EIS is required “for each proposed
major Federal action significantly affecting the quality of the human environment
before making a decision on whether to proceed with the proposed action”
(emphasis added)). Plaintiffs argue that the term “whether” means that the BLM
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was required to complete the EIS process prior to making a decision on whether or
not to cancel the application. Plaintiffs have not, however, cited any case
supporting this interpretation and the Court finds Plaintiffs’ interpretation to be
strained and unpersuasive.
Plaintiffs also point to the analytical deficiencies in the BLM’s decision
making process, many of which have been discussed above, and note that these
deficiencies may have been identified and corrected if the BLM had published a
final EIS for public review and comment. While that may be true, as discussed
above, there is nothing that requires the BLM to complete a final EIS before
cancelling its application because cancellation would merely continue the status
quo. Once the application was cancelled, there was no proposed Federal action that
would significantly affect the quality of the human environment and thus, no EIS
was required.
In sum, the Court finds that the BLM did not violate NEPA by cancelling its
withdrawal application prior to completing the NEPA process.
ORDER
IT IS ORDERED that:
1.
Plaintiffs’ Motion for Partial Summary Judgment (Dkt. 235) is
GRANTED in part and DENIED in part.
a.
The motion is GRANTED on Plaintiffs’ APA violation claims.
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b.
The BLM’s cancellation of the application and proposal for the SFA
Mineral Withdrawal is VACATED and remanded to the BLM for further
proceedings and consideration of whether the withdrawal is needed for sage
grouse conservation. Such proceedings shall include re-initiation of the
NEPA process.
c.
The motion is DENIED on Plaintiffs’ NEPA violation claim.
2.
Defendant’s Motion for Partial Summary Judgment (Dkt. 239) is
DENIED.
DATED: February 11, 2021
_________________________
B. Lynn Winmill
U.S. District Court Judge
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