Western Watersheds Project et al v. Zinke et al
Filing
389
MEMORANDUM DECISION AND ORDER. Signed by Judge Ronald E. Bush. (alw)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT, et al.,
Plaintiffs,
Case No.: 1:18-cv-00187-REB
MEMORANDUM DECISION AND
ORDER RE:
vs.
DAVID BERNHARDT, Secretary of the
Interior, et al.,
PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
(PHASE TWO)
(Dkt. 247)
Defendants,
and
STATE OF WYOMING, et al.,
Defendant-Intervenors.
FEDERAL DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY
JUDGMENT (PHASE TWO)
(Dkt. 278)
DEFENDANT-INTERVENOR STATE
OF WYOMING’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
(PHASE TWO)
(Dkt. 283)
DEFENDANT-INTERVENOR
WESTERN ENERGY ALLIANCE’S
PHASE TWO CROSS-MOTION FOR
SUMMARY JUDGMENT
(Dkt. 294)
PLAINTIFF’S MOTION TO STRIKE
WEA EXHIBITS
(Dkt. 314)
DEFENDANT-INTERVENORS PEAK
POWDER RIVER ACQUISITIONS,
LLC’S, TITAN EXPLORATION,
LLC’S, AND REBELLION ENERGY
II, LLC’S MOTION FOR PARTIAL
SUMMARY JUDGMENT (PHASE
TWO)
(Dkt. 318)
MEMORANDUM DECISION AND ORDER - 1
Pending before the Court are the following motions: (1) Plaintiffs’ Motion for Partial
Summary Judgment (Phase Two) (Dkt. 247); (2) Federal Defendants’ Motion for Partial
Summary Judgment (Phase Two) (Dkt. 278); (3) Defendant-Intervenor State of Wyoming’s
Motion for Partial Summary Judgment (Phase Two) (Dkt. 283); (4) Defendant-Intervenor
Western Energy Alliance’s Phase Two Cross-Motion for Summary Judgment (Dkt. 294); (5)
Plaintiffs’ Motion to Strike WEA Exhibits (Dkt. 314); and (6) Defendant-Intervenors Peak
Powder River Acquisitions, LLC’s, Titan Exploration, LLC’s, and Rebellion Energy II, LLC’s
Motion for Partial Summary Judgment (Phase Two) (Dkt. 318). Having carefully considered the
record, participated in oral argument, and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order:
I. GENERAL BACKGROUND
Whereas Phase One of this action dealt specifically with Instruction Memorandum
(“IM”) 2018-034 and a subset of five oil and gas leases that applied IM 2018-034 (Plaintiffs’
Fourth and Fifth Claims for Relief), Phase Two addresses four separate Bureau of Land
Management (“BLM”) lease sales conducted in greater sage-grouse habitat (Plaintiff’s Third
Claim for Relief)1 – BLM’s February 2017 Wyoming, June 2017 Wyoming and Montana, and
September 2017 Wyoming oil and gas lease sales.2 Here is the relevant factual backdrop:
A.
Greater Sage-Grouse Plan Amendments of 2015
1.
Greater sage-grouse once occupied nearly half a million square miles across the
West and numbered in the millions. See Pls.’ SOF No. 1 (Dkt. 247-2). The current population
1
Plaintiffs are not pursuing their additional challenges to the Phase Two lease sales
under their First and Second Claims for Relief. See Pls.’ Mem. ISO MSJ, p. 2 n.2 (Dkt. 247-1).
2
BLM conducted the Phase Two lease sales before adopting the national policies
challenged in this case, including IM 2018-034 and IM 2018-026 (which the parties will address
during Phase Three of this action).
MEMORANDUM DECISION AND ORDER - 2
of greater sage-grouse is estimated at less than 10% of historic levels, and the species occupies
only about half its historic range. See id.
2.
Oil and gas development is one of the “greatest threat[s]” to greater sage-grouse.
See id. at No. 7 (quoting 80 Fed. Reg. 59,858, 59,888-90 (Oct. 2, 2015)); see also WY 60308
(“While energy development has been identified as the primary threat to the greater sage-grouse
within its eastern range, this area is not immune to the threat of wildfire.”). Well pads, access
roads, pipelines, powerlines, storage tanks, compressor stations, and other surface infrastructure
result in the direct loss and fragmentation of greater sage-grouse habitat. See Pls.’ SOF No. 9.
The patchy nature of these disturbances magnifies the loss, as fragmentation can render habitat
too small or isolated to be of use to greater sage-grouse. See id. at No. 10; see also WY 60858
(“In Wyoming, information suggests that greater sage-grouse populations are negatively affected
by energy development activities, especially those that degrade important sagebrush habitat,
even when mitigation measures are implemented. Greater sage-grouse populations can
repopulate areas developed for resource extraction after habitat reclamation for the species.
However, there is no evidence that populations attain their previous levels, and reestablishment
of sage-grouse in a reclaimed area may take 20 to 30 years, or longer.”) (internal citations
omitted). Noise and human presence from oil and gas operations are also known to produce
stress responses in greater sage-grouse, reduce their reproductive success, and cause birds to
abandon suitable habitat, resulting in population declines. See Pls.’ SOF No. 16.
3.
Research suggests that buffer margins of 0.2 mile, 0.5 mile, 0.6 mile, and 1.0 mile
result in estimated lek persistence of 5%, 11%, 14%, and 30%, respectively. See id. at No. 21.
Further, at least a 4-mile, year-round lek buffer is required to maintain greater sage-grouse
populations, and even that distance would “not be large enough to offset all the impacts” of
energy development. See id. at No. 22 (quoting WO 26092-93).
MEMORANDUM DECISION AND ORDER - 3
4.
In 2010, the U.S. Fish and Wildlife Service (“FWS”) decided that Endangered
Species Act (“ESA”) listing for the greater sage-grouse was “warranted, but precluded” by
higher priority species. See id. at No. 23 (quoting 75 Fed. Reg. 13,910 (March 5, 2010)). The
FWS identified the primary threats to greater sage-grouse as habitat loss and fragmentation,
coupled with a lack of adequate regulatory mechanisms. See id. Federal agencies manage
roughly half the remaining greater sage-grouse habitat. See id. at No. 24.
5.
In response to the FWS’s “warranted, but precluded” finding, BLM and the U.S.
Forest Service (“FS”) undertook a multi-state planning effort to review and amend their land
management plans to increase protections for greater sage-grouse and avoid ESA listing. See id.
at No. 25.
6.
To inform and advise the planning process, BLM chartered a National Technical
Team (“NTT”) of scientific experts to review the best available science and recommend
conservation measures for incorporation into the land-use plans. See id. at No. 26. A December
2011 report ( the “NTT Report”) was produced, identifying oil and gas development as one of
the primary threats to greater sage-grouse. See id. at No. 27. The NTT Report observed that
impacts to greater sage-grouse from oil and gas development “are universally negative and
typically severe.” See id. (quoting WO 26091). It also found that “[t]here is strong evidence
from the literature to support that surface-disturbing energy . . . development within priority
sage-grouse habitats is not consistent with a goal to maintain or increase populations or
distribution.” See id. The NTT Report recommended that all sage-grouse priority habitats be
closed to new oil and gas leasing. See id. at No. 28 (citing WO 26094). It concluded that simply
applying buffers around leks “at any distance is unlikely to be effective,” and that “[e]ven a 4mile NSO [(no surface occupancy)] buffer would not be large enough to offset all the impacts
reviewed above.” See id. (quoting WO 26092-93).
MEMORANDUM DECISION AND ORDER - 4
7.
For its part, the FS convened a separate Conservation Objectives Team (“COT”)
of federal and state experts, releasing its own report (the “COT Report”) in March 2013 that
similarly recommended avoiding new energy development in greater sage-grouse habitat. See id.
at No. 29 (citing WO 26147-261). The COT Report expressed “an urgent need to ‘stop the
bleeding’ of continued population declines and habitat losses.” See id. (quoting WO 26184).
8.
BLM and the FS finalized their greater sage-grouse planning effort in September
2015 by adopting amendments to 98 land use plans (the “Plan Amendments”), with the objective
of increasing protections across the bird’s range. See id. at No. 30. BLM analyzed its proposed
Plan Amendments in 15 separate environmental impact statements (“EISs”). See id. at No. 31.
BLM approved the Plan Amendments through two separate Records of Decision (“RODs”) – (1)
the Great Basin region (the western half of the greater sage-grouse range), and (2) the Rocky
Mountain region (the eastern half of the greater sage-grouse range). See id. at No. 32.3
3
Five of the Resource Management Plans (“RMPs”) that were approved and/or amended
as part of the Plan Amendments (alongside their EISs) are relevant here:
Miles City RMP/EIS, which encompasses BLM’s Miles City Field Office in eastern
Montana. BLM-MT-2Q17-157-588 (RMP), BLM-MT-2Q17-589-2112 (EIS).
Bighorn Basin RMPs/EIS, which encompass BLM’s Cody and Worland Field Offices in
north/central Wyoming. WY 68071-673 (Cody RMP), WY 68674-69312 (Worland
RMP), WY 63652-66623 (EIS).
Buffalo RMP/EIS, which encompasses BLM’s Buffalo Field Office in northeastern
Wyoming. WY 67095-922 (RMP), WY57293-60247 (EIS).
“Wyoming Nine” RMP/EIS, which encompasses BLM lands across most of southern
Wyoming, including BLM’s Casper, Rock Springs, Kemmerer, Newcastle, Pinedale,
and Rawlins Field Offices. WY 66624-67094 (RMP), WY 60248-63651 (EIS).
Lander RMP/EIS, which encompasses BLM’s Lander Field Office in central Wyoming.
WY 56783-57292 (RMP), WY 53928-55899 (EIS).
Fed. Defs.’ SOF No. 5 (Dkt. 278-2). These RMPs (except for the Lander RMP) were approved
by the Rocky Mountain ROD. See id. (citing WY 67923, 67936 (addressing Lander RMP)).
MEMORANDUM DECISION AND ORDER - 5
9.
The Plan Amendments adopted tiered habitat designations – the highest protection
was afforded to Priority Habitat Management Areas (“PHMA”), which are areas “identified as
having the highest habitat value”; lesser protections applied to General Habitat Management
Areas (“GHMA”), which included occupied habitat outside of PHMAs. See id. at 33 (quoting
WY 67949). The Plan Amendments directed BLM to “prioritize” oil and gas leasing and
development outside of identified PHMAs and GHMAs, stating further:
This is to further limit future surface disturbance and encourage new
development in areas that would not conflict with [greater sage-grouse]. This
objective is intended to guide development to lower conflict areas and as such
protect important habitat and reduce the time and cost associated with oil and
gas leasing development by avoiding sensitive areas, reducing the complexity
of environmental review and analysis of potential impacts on sensitive
species, and decreasing the need for compensatory mitigation.
See id. at No. 35 (quoting WY 67959).
10.
Following the issuance of the Plan Amendments, the FWS reviewed the status of
the greater sage-grouse and concluded that listing under the ESA was not warranted. See Fed.
Defs.’ SOF No. 4. The FWS found that one of the key circumstances that had changed since its
2010 “warranted, but precluded” finding was that the Plan Amendments “provide adequate
mechanisms to reduce and minimize new disturbance in the most important areas for the
species.” See id. (quoting 80 Fed. Reg. 59,858, 59,882 (Oct. 2, 2015)). The FWS emphasized
that its decision that a listing was not warranted was dependent upon the “continued
implementation of the regulatory mechanisms and conservation efforts,” including the Plan
Amendments. See id. (quoting 80 Fed. Reg. at 59,941).
B.
The Challenged Phase Two Lease Sales
February 2017 Wyoming
11.
In February 2017, BLM conducted a competitive oil and gas lease sale, offering
283 Wyoming lease parcels, covering 184,784 acres. See Pls.’ SOF No. 38.
MEMORANDUM DECISION AND ORDER - 6
12.
The parcels are located on BLM land managed by the Buffalo, Casper, and
Newcastle Field Offices, which span two BLM District Offices (High Plains and Wind
River/Bighorn Basin). See id. at SOF No. 39. BLM prepared a separate Environmental
Assessment (“EA”), Finding of No Significant Impact (“FONSI”), and Decision Record for each
District Office. See id. (citing WY 90976-1038 (High Plains EA), WY 92019-23 (High Plains
FONSI), WY 90965-75 (High Plains Decision Record), WY 92035-88 (Wind River EA), WY
92189-93 (Wind River FONSI), WY 92024-34 (Wind River Decision Record)); see also Fed.
Defs.’ Resp. to Pls.’ SOF No. 39 (Dkt. 279-1) (providing clarification of Wind River/Bighorn
Basin EA and FONSI).
13.
The High Plains EA tiers to the Buffalo RMP/EIS and the Wyoming Nine
RMP/EIS; the Wind River EA tiers to the Lander RMP/EIS and the Bighorn Basin RMP/EIS.
See Pls.’ SOF No. 40; see also Fed. Defs.’ Resp. to Pls.’ SOF No. 39 (clarifying that “[t]he Wind
River EA [also] tiers to and incorporates by reference the information found in the Rawlins
planning documents (Rawlins RMP and Wyoming Sage-Grouse 9-Plan).”).
14.
BLM examined just two alternatives in each EA: (1) no action; and (2) the
proposed action of offering all leases. See Pls.’ SOF No. 41 (citing WY 90995, 92050).
15.
Nearly all (99.9%) of the acreage offered at the sale, and 282 of the 283 parcels,
consists of greater sage-grouse habitat. See id. at SOF No. 42 (citing WY 90970-75). Thirty-six
of the parcels are located in PHMA. See id.; see also Fed. Defs.’ Resp. to Pls.’ SOF No. 43
(clarifying that, for the parcels offered, 26 were located entirely within PHMA, while 10 parcels
overlapped PHMA and GHMA).
16.
Wyoming BLM initially identified 89 parcels that could be deferred from the sale
as being in greater sage-grouse habitat. Fed. Defs.’ Resp. to Pls.’ SOF No. 43 (citing WY
73896-73902). BLM headquarters evaluated these parcels and recommended that 42 of the 89
MEMORANDUM DECISION AND ORDER - 7
parcels should be deferred, while the other 47 parcels were appropriate to offer. See id. (citing
WY 75149-75150, 75169-75). Another eight parcels were deferred because of habitat mapping
changes resulting from a revision to the Wyoming Governor’s Executive Order on Greater Sage
Grouse Core Area Protection, so that 50 parcels total were deferred from the sale. See id. (citing
WY 75261-62). After further BLM review and consultation with the State Director, two parcels
originally proposed for deferral were then moved forward to be offered (ultimately resulting in a
total of 48 deferred parcels from the sale). See id. (citing WY 75834-38).
17.
According to Plaintiffs, “[they] and other commenters identified numerous
impacts to greater sage-grouse that BLM did not adequately evaluate under [the National
Environmental Policy Act (“NEPA”)] and requested that BLM consider deferring additional
sage-grouse habitat.” Pls.’ SOF No. 44 (citing WY 79361-70, 79329-40). Plaintiffs claim that
BLM did not consider this alternative or further analyze impacts to greater sage-grouse. See id.
at SOF No. 45 (citing WY 92006-09, 92119-25); but see Fed. Defs.’ Resp. to Pls.’ SOF No. 45
(“BLM explained in its responses to comments that the potential impacts of not leasing some of
the parcels were ‘imbedded within the No Action alternative,’ and therefore the analysis of
another separate alternative was not necessary.”) (quoting WY 92008, 92124).
June 2017 Montana
18.
In June 2017, BLM conducted a competitive oil and gas lease sale, offering 156
Montana lease parcels covering 69,056 acres. See Pls.’ SOF No. 46.
19.
BLM prepared an EA and FONSI to analyze the sale, which tiered to the EIS
prepared for the Miles City RMP. See id. at No. 47.
20.
BLM examined just two alternatives in the EA: (1) no action; and (2) the
proposed action of offering all leases. See id. at No. 48 (citing BLM-MT-2Q17-2410).
MEMORANDUM DECISION AND ORDER - 8
21.
The sale included 69 parcels in greater sage-grouse habitat, including one parcel
in PHMA, two parcels in Restoration Habitat Management Areas (“RHMA”), and 66 parcels in
GHMA. See id. at No. 49 (citing BLM-MT-2Q17-002426); see also BLM-MT-2Q17-35
(defining RHMA as: “BLM-administered lands where maintaining populations is a priority, a
balance between ongoing and future resource use so that enough quality habitat is maintained to
allow some residual population in impacted areas to persist and that emphasizes the restoration
of habitat to reestablish or restore sustainable populations.”).
22.
According to Plaintiffs, “[they] submitted comments requesting that BLM
perform more site-specific analysis of the impacts to greater sage-grouse and consider an
alternative that would defer additional sage-grouse habitat.” Pls.’ SOF No. 50 (citing BLM-MT2Q17-2686-759, 3366-74); but see Fed. Defs.’ Resp. to Pls.’ SOF No. 50 (acknowledging that
Plaintiffs’ comment letters requested additional site-specific analyses, but that Plaintiff Western
Watersheds Project’s (“WWP”) comment “did not specifically request for certain additional
alternatives to be analyzed.”). Plaintiffs claim that BLM did not consider this alternative or
further analyze greater sage-grouse impacts. See Pls.’ SOF No. 51 (citing BLM-MT-2Q172678-79); but see Fed. Defs.’ Resp. to Pls.’ SOF No. 51 (disputing statement because “[t]he
reference to ‘this alternative’ implies that Plaintiffs proposed an additional alternative to be
analyzed, which they did not.”).
June 2017 Wyoming
23.
In June 2017, BLM conducted a competitive oil and gas lease sale, offering 26
Wyoming lease parcels, covering 31,925 acres. See Pls.’ SOF No. 52.
24.
BLM prepared an EA, FONSI, and Decision Record to analyze and approve the
sale, which tiered to the Wyoming Nine RMP/EIS. See id. at No. 53.
MEMORANDUM DECISION AND ORDER - 9
25.
BLM examined just two alternatives in the EA: (1) no action; and (2) the
proposed action of offering all proposed leases. See id. at No. 54 (citing WY 102612). The EA
also refers to a third alternative – “Alternative C – Defer Parcels for Sage Grouse” – in the Table
of Contents, but the body of the EA contains no mention of such an alternative. See id. (citing
WY 102602).
26.
All 26 parcels are located in greater sage-grouse habitat, including six in PHMA.
See id. at No. 55 (citing WY 102701, 102652); but see Fed. Defs.’ Resp. to Pls.’ SOF No. 56
(“WY BLM did defer 46 parcels (all in habitat) and offered for lease the remaining parcels (all
within habitat).”) (citing WY 102850).
27.
According to Plaintiffs, “[they] and others identified numerous impacts to greater
sage-grouse that BLM did not adequately evaluate under NEPA and requested that BLM
consider a middle-ground alternative that would defer additional sage-grouse habitat.” See Pls.’
SOF No. 56 (citing WY 102821-55); but see Fed. Defs.’ Resp. to Pls.’ SOF No. 56 ((1) disputing
that Plaintiffs submitted comments on the EA, but instead “subsequently submit[ted] a protest
letter”; (2) discussing letter’s “[p]rotests specific to sage-grouse”; and (3) discussing deferral of
certain parcels for sale) (citing WY 102821-55). Plaintiffs claim that BLM did not consider this
alternative or further analyze greater sage-grouse impacts. See Pls.’ SOF No. 57; but see Fed.
Defs.’ Resp. to Pls.’ SOF No. 57 (disputing statement because “[t]he reference to ‘this
alternative’ implies that a middle-ground alternative was proposed during the public comment
period on the EA, which it was not.”).
September 2017 Wyoming
28.
In September 2017, BLM conducted a competitive oil and gas lease sale, offering
140 Wyoming lease parcels, covering 118,055 acres. See Pls.’ SOF No. 58.
MEMORANDUM DECISION AND ORDER - 10
29.
The parcels are located in BLM’s Buffalo, Newcastle, Casper, Worland, and
Lander Field Offices, which span two BLM District Offices (High Plains and Wind
River/Bighorn Basin). See id. at No. 59. BLM prepared a separate EA and FONSI/Decision
Record for each District Office. See id. at No. 60 (citing WY 113308-83 (High Plains EA), WY
113294-307 (High Plains FONSI/Decision Record), WY 113571-634 (Wind River EA), WY
113558-570 (Wind River FONSI/Decision Record)).
30.
The High Plains EA tiers to the Buffalo RMP/EIS and the Wyoming Nine
RMP/EIS; the Wind River EA tiers to the Lander RMP/EIS and the Bighorn Basin RMP/EIS.
See id.
31.
BLM examined just two alternatives in each EA: (1) no action; and (2) the
proposed action of offering all leases. See id. at No. 61. (citing WY 113328-29, 113585).
32.
According to Plaintiffs, of the 140 parcels offered, 123 were in greater sage-
grouse habitat, with roughly 40% of this in PHMA. See id. at No. 62 (citing WY 113304-07);
but see Fed. Defs.’ Resp. to Pls.’ SOF No. 62 (clarifying that “WY 113307 shows 137 parcels
were offered. 13 parcels were not located in PHMA or GHMA (WY 113304). 43% of the total
offered acreage was PHMA and this was approximately 24% of the offered parcels.”) (citing
WY 113307).
33.
According to Plaintiffs, “[they] and other commenters identified numerous
impacts to greater sage-grouse that BLM did not adequately evaluate under NEPA and requested
that BLM consider deferring additional sage-grouse habitat.” Pls.’ SOF No. 63 (citing WY
110243-75, 110280-312). Plaintiffs claim that BLM did not consider this alternative or further
analyze greater sage-grouse impacts. See id. at No. 64 (citing WY 113534-35, 113551-57,
113669-72, 113698-108); but see Fed. Defs.’ Resp. to Pls.’ SOF No. 64 (“BLM explained that
MEMORANDUM DECISION AND ORDER - 11
by analyzing the no action alternative, BLM had effectively analyzed deferring parcels from the
sale.”) (citing WY 113556-57, 113707-08).
C.
The Phase Two Action
34.
Plaintiffs assert that the above-referenced Phase Two lease sales threaten
substantial loss and fragmentation of the greater sage-grouse’s remaining habitat – risks that,
Plaintiffs say, BLM failed to properly examine in violation of NEPA. See generally Pls.’ Second
Am. Compl., ¶¶ 300-313 (Dkt. 165). They claim that, because BLM followed identical courses
in analyzing and approving the Phase Two lease sales, each sale suffers from the same four
NEPA violations – specifically (1) BLM failed to consider the reasonable alternative of deferring
priority greater sage-grouse habitat; (2) BLM failed to take a “hard look” at the direct and
indirect impacts on greater sage-grouse by (a) failing to assess baseline conditions in each lease
area, and (b) failing to assess the site-specific impacts of each lease sale on greater sage-grouse;
and (3) BLM failed to take a “hard look” at the cumulative impacts on greater sage-grouse. See
generally Pls.’ Mem. ISO MSJ, pp. 15-37. Plaintiffs submit that these violations require the
Court to set aside and vacate all four Phase Two lease sales. See id. at pp. 37-39.
35.
Federal Defendants and Defendant-Intervenors – (1) State of Wyoming
(“Wyoming”), (2) Western Energy Alliance (“WEA”), and (3) Peak Powder River Acquisitions,
LLC (“PPRA”), Titan Exploration, LLC (“Titan”), and Rebellion Energy II, LLC (“Rebellion
II”) (collectively the “Intervenor Lease Owners”)) oppose each of Plaintiffs’ arguments and
likewise move for summary judgment on each of the same issues. See generally Fed. Defs.’
Mem. ISO MSJ and Opp. to Pls.’ MSJ (Dkt. 278-1); Wyo.’s Mem. ISO MSJ and Opp. to Pls.’
MSJ (Dkt. 283-1); WEA’s Mem. ISO MSJ and Opp. to Pls.’ MSJ (Dkt. 294-1); Interv. Lease
MEMORANDUM DECISION AND ORDER - 12
Owners’ Mem. ISO MSJ and Opp. to Pls.’ MSJ (Dkt. 318-1);4 see also AEC’s Amicus Brief
(Dkt. 328) (opposing vacatur of leases in event lease sales are deficient under NEPA).
36.
On February 25, 2021, the Court heard oral argument on the parties’ cross-
motions for summary judgment (Dkts. 247, 278, 283, 294, 318). This Memorandum Decision
and Order addresses those arguments, in turn resolving the at-issue motions along with Plaintiffs’
related Motion to Strike (Dkt. 314) speaking to certain of WEA’s exhibits.
II. LEGAL STANDARDS
A.
Administrative Procedure Act (“APA”)
Because NEPA does not provide a private right of action, compliance with its mandates
is reviewed under the APA. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882-83 (1990)
(stating that judicial review of agency action proceeds under APA where statute at issue, NEPA,
does not provide cause of action). Under the APA, an agency action must be upheld unless 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 has 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.’” Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir.
4
On September 14, 2020, the Court permitted the Intervenor Lease Owners to intervene
for the sole purpose of addressing remedies related to those Phase Two lease sales and related
wells in which they claim an interest. See 9/14/20 Order (Dkt. 312). Their briefing therefore
speaks only to Plaintiffs’ claim that the Phase Two lease sales should be vacated. See generally
Interv. Lease Owners’ Mem. ISO MSJ and Opp. to Pls.’ MSJ (Dkt. 318-1). Separately, WEA
additionally argues that Plaintiff WWP does not have legal standing to challenge the Wyoming
lease sales and that all claims must similarly be dismissed as to the June 2017 Wyoming lease
sale. See WEA’s Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 5-6.
MEMORANDUM DECISION AND ORDER - 13
2010) (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)).
The “touchstone of ‘arbitrary and capricious’ review under the APA is ‘reasoned
decision-making.’” Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 1061,
1080 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52). Courts sustain an
agency action if the agency has “examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a ‘rational connection between the facts found and the choice
made.’” Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation omitted)).
This standard also applies to how an agency considers and responds to “significant comments”
that raise points that could change a decision. Id. (quoting Am. Mining Congress v. EPA, 965
F.2d 759, 771 (9th Cir. 1992) (internal quotation omitted)).
Summary judgment is typically appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). However, in a case involving review of a final agency action under
the APA, the court’s role is limited to reviewing the administrative record, and the standard set
forth in Rule 56 does not apply. See Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d
191, 200 (D.D.C. 2012) (citing Catholic Health Initiatives v. Sebelius, 658 F. Supp. 2d 113, 117
(D.D.C. 2009), rev’d on other grounds, 617 F.3d 490 (D.C. Cir. 2010)). Rather, under the APA,
“it is the role of the agency to resolve factual issues to arrive at a decision that is supported by
the administrative record, whereas ‘the function of the district court is to determine whether or
not as a matter of law the evidence in the administrative record permitted the agency to make the
decision it did.’” Id. (citation omitted); see also Occidental Eng’g Co. v. Immigration &
Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985). Summary judgment is then the
mechanism for deciding whether, as a matter of law, the agency action passes muster under the
MEMORANDUM DECISION AND ORDER - 14
APA. See N.w. Motorcycle Ass’n v. U.S. Dep’t Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994);
Occidental Eng’g, 753 F.2d at 769-70.
In considering whether an agency’s action was arbitrary and capricious, courts are
“highly deferential” to the agency’s decision, Providence Yakima, 611 F.3d at 1190, and are not
to “substitute [the court’s own] judgment for that of the agency.” J & G Sales Ltd. v. Truscott,
473 F.3d 1043, 1051 (9th Cir. 2007). “[C]ourts will ‘uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.’” Id. at 1052 (quoting Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43). “Moreover, ‘[w]here the agency’s line-drawing does not appear irrational
and the [party challenging the agency action] has not shown that the consequences of the linedrawing are in any respect dire . . . [courts] will leave that line-drawing to the agency’s
discretion.’” Id. (quoting Leather Indus. of Am. v. EPA, 40 F.3d 392, 409 (D.C. Cir. 1994)).
However, the agency cannot engage in post-hoc rationalizations; “[t]he grounds upon which an
administrative order must be judged are those upon which the record discloses that its action was
based.” Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943). Further, when an
agency changes position, it must provide “good reasons” for the shift. See F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009).
Despite this forgiving standard, there is no room for a court to “rubber-stamp” an
administrative decision. Instead, the court must make “a substantive inquiry[,] . . . a thorough,
probing, in-depth review” of the agency action. Native Ecosystems Council v. U.S. Forest Serv.,
418 F.3d 953, 960 (9th Cir. 2005) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 415-16 (1971)). If, after such review, the court concludes that an agency action was
arbitrary and capricious, “the proper course [is] to remand to the [a]gency.” Nat’l Ass’n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 657 (2007); see also Fed. Power Comm’n v. Idaho
MEMORANDUM DECISION AND ORDER - 15
Power Co., 344 U.S. 17, 20, (1952) (when reviewing administrative decision, “the function of
the reviewing court ends when an error of law is laid bare.”).
B.
National Environmental Policy Act (“NEPA”)
NEPA encourages “‘productive and enjoyable harmony between man and his
environment,’ and was intended from its outset to reduce or eliminate environmental damage and
to promote ‘the understanding of the ecological systems and natural resources important to’ the
United States.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756 (2004) (quoting 42 U.S.C.
§ 4321). Particular results are not mandated, but NEPA does “prescribe[ ] the necessary
process” to avoid “uninformed – rather than unwise – agency action.” Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350-351 (1989). Council on Environmental Quality
(“CEQ”) regulations guide federal agencies’ compliance with NEPA. See 40 C.F.R. §§ 1500.11508.28.
At its core, NEPA requires that agencies prepare a detailed statement – an EIS – in
connection with “proposals for . . . major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(C). Among other things, an EIS must include an
explanation of “the environmental impact of the proposed action,” “any adverse environmental
effects which cannot be avoided should the proposal be implemented,” and “alternatives to the
proposed action.” Id. at §§ 4332(C)(i)-(iii). The process of preparing the EIS “ensures that the
agency, in reaching its decision, will have available, and will carefully consider, detailed
information concerning significant environmental impacts” and that “the relevant information
will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson, 490 U.S. at 349. “[T]he
broad dissemination of information mandated by NEPA permits the public and other government
MEMORANDUM DECISION AND ORDER - 16
agencies to react to the effects of a proposed action at a meaningful time.” Marsh v. Or. Nat.
Res. Council, 490 U.S. 360, 371 (1989).
To assist in deciding whether an EIS is required (i.e., will the proposed project have a
significant effect on the human environment?), the responsible agency may first prepare an
Environmental Assessment (“EA”). 40 C.F.R. §§ 1501.3-1501.4. A “concise public document,”
the EA is used to “briefly” discuss “the environmental impacts” and “alternatives” to the
proposed action. 40 C.F.R. § 1508.9. If the decision is that an EIS is not necessary, an
explanatory Finding of No Significant Impact (“FONSI”) is required to “briefly present…why an
action . . . will not have a significant effect on the human environment.” 40 C.F.R. § 1508.13.
Regarding the “threshold question of NEPA applicability,” the less deferential standard of
‘reasonableness’ applies to threshold agency decisions that certain activities are not subject to
NEPA’s procedures.” Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir. 1998).
“Courts apply a ‘rule of reason’ standard in reviewing the adequacy of a NEPA
document” – asking whether it “contains a reasonably thorough discussion of the significant
aspects of the probable environmental consequences.” Klamath-Siskiyou Wildlands Ctr. v.
Bureau of Land Mgmt., 387 F.3d 989, 992 (9th Cir. 2004) (quoting Churchill Cty v. Norton, 276
F.3d 1060, 1071 (9th Cir. 2001)). “This inquiry involves ‘a pragmatic judgment whether the
[document’s] form, content, and preparation foster both informed decision-making and informed
public participation.’” Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1035 (9th Cir.
2019) (quoting Churchill Cty., 276 F.3d at 1071); see also California v. Block, 690 F.2d 753, 761
(9th Cir. 1982). 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) (citation omitted).
MEMORANDUM DECISION AND ORDER - 17
Hence, there is a critical, salutary role of the NEPA process in agency decision-making, a
purpose described in myriad agency decisions and court decisions over many decades. When
properly implemented, NEPA procedures ensure that the agency “will inform the public that it
has indeed considered environmental concerns in its decision-making process.” Balt. Gas &
Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97 (1983); see also 40 C.F.R. § 1500.1(b)
(“Accurate scientific analysis, expert agency comments, and public scrutiny are essential to
implementing NEPA.”). However, while “a court must ‘[e]nsure that the agency has taken a
hard look at environmental consequences,’ a court cannot ‘interject itself within the area of
discretion of the executive as to the choice of the action to be taken.’” Friends of the Santa
Clara River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 913 (9th Cir. 2018) (quoting Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976)); see also Bair v. Cal. State Dep’t of Transp., 867 F.
Supp. 2d 1058, 1065 (N.D. Cal. 2012) (“Once the agency does the required hard look, it is free to
choose to proceed with action that will have an adverse impact on the environment, at least
insofar as NEPA is concerned, the idea being that if we are going to destroy the environment, we
should do so with ou[r] eyes wide open and not by accident.”).
An agency may also promulgate categorical exclusions from NEPA review for actions
“which do not individually or cumulatively have a significant effect on the human environment.”
40 C.F.R. § 1508.4. If a proposed action falls within a categorical exclusion, the agency is not
required to prepare an EA or EIS. See id. “An agency satisfies NEPA if it applies its categorical
exclusions and determines that neither an EA nor an EIS is required, so long as the application of
the exclusions to the facts of the particular action is not arbitrary and capricious.” Bicycle
Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 n.5 (9th Cir. 1996) (as amended June 17,
1996) (emphasis added).
MEMORANDUM DECISION AND ORDER - 18
III. DISCUSSION
Plaintiffs argue that the Phase Two lease sales should be set aside and vacated because
each of them, having been identically analyzed and approved by BLM, violated NEPA in the
same identical ways – namely, that BLM (1) failed to consider the reasonable alternative of
deferring priority greater sage-grouse habitat; (2) failed to take a “hard look” at the direct and
indirect impacts on greater sage-grouse by (a) failing to assess baseline conditions in each lease
area, and (b) failing to assess the site-specific impacts of each lease sale on greater sage-grouse;
and (3) failed to take a “hard look” at the cumulative impacts on greater sage-grouse. Each issue
is considered below. Preliminarily, however, the Court addresses WEA’s jurisdictional claim
that WWP lacks standing to challenge the Wyoming lease sales, and that both Plaintiffs lack
standing to challenge (or waived their challenge to) the June 2017 Wyoming lease sale.
A.
Plaintiffs Have Standing to Challenge the Wyoming Lease Sales; Alternatively,
Neither Plaintiff Has Waived Their Challenge to Any of the Phase Two Lease Sales
WEA argues that WWP “does not have legal standing as it waived its challenge to the
Wyoming lease sales and must be dismissed as a party to these claims,” and that “all claims must
be dismissed against the June 2017 [Wyoming] sale.” WEA’s Mem. ISO MSJ and Opp. to Pls.’
MSJ, p. 5 (Dkt. 294-1). In support of this position, WEA states:
Plaintiff WWP did not submit comments on any of the BLM Wyoming Draft
Lease Sale EAs. Although Plaintiff [Center for Biological Diversity] CBD
did submit comments on both February and September Wyoming Lease Sale
EAs, they did not submit any comments related to the June 2017 Wyoming
sale. Thus, Plaintiffs have waived all their NEPA claims as to that sale.
Further, neither Plaintiff advocated for their now-preferred alternative during
the NEPA process. Thus, this Court must dismiss WWP as a party as to the
Wyoming lease sales because WWP “forfeited” these claims when it failed
to raise them before BLM at a time when BLM could have responded to them.
Similarly, it must dismiss all claims related to the June 2017 Wyoming sale.
MEMORANDUM DECISION AND ORDER - 19
Id. at p. 6 (citing DOT v. Pub. Citizen, 541 U.S. 752, 764-65 (2004); Barnes v. DOT, 655 F.3d
1124, 1135-36 (9th Cir. 2011)).5 Whether couched in terms of a lack of standing, failure to
exhaust, and/or waiver, WEA’s argument is without merit.
First, exhaustion is not an element of standing. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992) (explaining standing elements); Spinedex Physical Therapy USA Inc. v.
United Healthcare of Ariz., Inc., 770 F.3d 1282, 1294, 1298-99 (9th Cir. 2014) (separately
addressing standing and exhaustion). Regardless, while WEA and Federal Defendants may be
correct that an issue not first raised with an agency is generally waived in a subsequent judicial
proceeding, Pub. Citizen, 541 U.S. at 764, that is not the case when another party raises the issue
(or the agency itself considered it). See Glacier Fish Co. v. Pritzker, 832 F.3d 113, 1120 n.6 (9th
Cir. 2016) (“We generally do not invoke the waiver rule so long as an issue was raised with
sufficient clarity to allow the decision-maker to understand and rule on the issue raised, whether
the issue was considered sua sponte by the agency or was raised by someone other than the
petitioning party.”) (internal quotation, citations omitted). Plaintiffs’ arguments were raised
below – by either Plaintiffs themselves, other parties, or BLM itself. See Pls.’ Resp./Reply Brief
ISO MSJ, p. 2 (Dkt. 315) (citing WY 82218-27, 79361-70, 79329-40, 102821-55, 110243-75,
110280-312, BLM-MT-2Q17-2686-759, 3366-74). Therefore, Plaintiffs, including WWP, are
not precluded from challenging the Wyoming lease sales in the first instance.
Second, although courts generally will not consider issues not first raised during the
administrative process, commenters “need not state their claims in precise legal terms” and need
only raise an issue “with sufficient clarity to allow the decision-maker to understand and rule on
5
Federal Defendants also argue that Plaintiffs waived their “alternatives claim” for the
June 2017 Wyoming lease sale, as well as the June 2017 Montana lease sale. See Fed. Defs.’
Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 16-17. These arguments largely coincide with
WEA’s and are therefore addressed together.
MEMORANDUM DECISION AND ORDER - 20
the issue raised.” Nat’l Park & Conservation Ass’n v. BLM, 606 F.2d 1058, 1065 (9th Cir. 2010);
see also Protect Our Cmtys. Found. v. LaCounte, 939 F.3d 1029, 1037-38 (9th Cir. 2019)
(“Public Citizen indicates that to preserve an argument that an alternative analysis is deficient,
comments must merely identify ‘any rulemaking alternative beyond those evaluated’ or urge the
agency ‘to consider alternatives.’”) (quoting Pub. Citizen, 541 U.S. at 764). These standards are
met here with respect to the June 2017 Wyoming and Montana lease sales.
As to the June 2017 Wyoming lease sale, CBD/Plaintiffs filed a protest three months
before6 the sale date that specifically addressed leasing decisions in greater sage-grouse habitat
and proposed an alternative that considered deferring priority habitat. See WY 102853 (“The
BLM fails to consider reasonable alternatives prioritizing leasing outside of Sage-Grouse
Core Areas, Priority Habitat and/or Sagebrush Focal Areas. . . . The EA does not even
consider an alternative, regularly considered and adopted by other field offices, [that] would
defer all remaining parcels located within sage grouse Sagebrush Focal Areas and Priority
Habitat Management Areas, consistent with the prioritization objective of its amended RMPs.
NEPA’s alternatives requirement requires that BLM give consideration to such a reasonable
habitat prioritization alternative.”) (emphases in original). BLM read and considered the protest.
See WY 102485. What’s more, BLM even independently contemplated – but apparently decided
6
Federal Defendants imply that Plaintiffs waived the issue by not raising it during the
draft EIS comment period. See Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 17 (“CBD
subsequently submitted a protest letter, but it did not submit comments during the comment
period when they could have informed BLM’s NEPA analysis.”). But waiver does not apply
when an agency had a fair opportunity to consider the issue. See Protect Our Cmtys., 939 F.3d at
1037 (“We will not invoke the waiver rule . . . if an agency has had an opportunity to consider
the issue); Glacier Fish, 832 F.3d at 1120 n.6 (same); see also Wildearth Guardians v. U.S.
BLM, 457 F. Supp. 3d 880, 890 (D. Mont. 2020) (“BLM bears the responsibility to remedy a
valid NEPA claim if a protest raises a valid claim. There would be no point otherwise in a
member of the public raising a NEPA violation at the protest stage. BLM offers no reason why it
could allow a NEPA violation to go unresolved solely because the party failed to bring up the
exact NEPA violation at an earlier point.”) (emphasis added).
MEMORANDUM DECISION AND ORDER - 21
against – an express sage-grouse deferral alternative. See WY 102602 (EA’s Table of Contents
referencing “Alternative C – Defer Parcels for Sage Grouse,” but containing no such discussion
within body of EA).
In the same way, CBD/Plaintiffs lodged objections as to the June 2017 Montana lease
sale, stating in relevant part:
In addition, the RMP’s protections for priority habitats are inadequate. After
years of deferring oil and gas leases in PHMAs, the BLM throws open
Priority Habitats to future mineral leasing, with discretionary language about
the priority for leasing being outside Priority Habitats which is completely
nonbinding, under stipulations inadequate to protect sage-grouse from further
significant population declines in the Priority Habitats. An NSO leasing of
fluid minerals in Priority Habitats is insufficient to prevent major impacts
even if no exceptions are permitted because it incentivizes leaseholders to
line up drilling rigs and industrial infrastructure along the boundary of
Priority Habitats. Science shows that the impact of a single producing well
can extend for 1.9 miles and the disturbance of drilling extends 3 miles or
more into surrounding habitats. This would result in a significant loss of
habitat function inside Priority Habitats on lands located within several miles
of the PHMA boundary. BLM must withdraw all parcels within PHMAs from
the lease sale.
BLM-MT-2Q17-2727-28 (emphasis added). It is true that these objections are not preceded by
the phrase “BLM must consider an alternative that . . . .,” but such precise legal phrasing is not
required to avoid waiver and put BLM on notice. See Protect Our Cmtys., 939 F.3d at 1037
(“None of these comments precisely alerted BIA that NEPA might require it to consider an
alternative that included only some of the ridgeline turbines. But we do not require precise legal
formulations.”) (internal quotation omitted, emphasis added).7
7
Plaintiffs do not dispute that WWP’s letter concerning the June 2017 Montana lease
sale “did not propose any other alternative and, in fact, requested that BLM ‘choose the no action
alternative.’” Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 17 (quoting BLM-MT2Q17-3371). However, given CBD’s more nuanced comments, any distinction in this respect is
without any real legal difference. See supra.
MEMORANDUM DECISION AND ORDER - 22
Combined, this is enough to put BLM on notice of the issues (while belying any
suggestion that Plaintiffs did not submit any comments proposing an alternative for BLM to
analyze for the June 2017 Wyoming and Montana lease sales). See Idaho Sporting Cong., Inc. v.
Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002) (claimants bringing administrative appeals may
alert decision-maker to problem “in general terms, rather than using precise legal formulations”
and “there is no bright-line standard as to when this requirement has been met and we must
consider exhaustion arguments on a case-by-case basis”) (citing Native Ecosystems Council v.
Dombeck, 304 F.3d 886, 900 (9th Cir. 2002)).
B.
BLM Failed to Consider the Reasonable Alternative of Deferring Priority SageGrouse Habitat
NEPA requires agencies to include in an EIS, among other things, a detailed discussion
of alternatives considered when deciding on a proposed action. See 42 U.S.C. §§ 4332(C)(iii),
(E); HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1231 (9th Cir. 2014). Analysis
of a proposed action and its alternatives “is the heart of the [EIS]” and is necessary to ensure that
the agency has before it and takes into account all possible approaches to, and potential
environmental impacts of, a particular project. 40 C.F.R. § 1502.14; see also Wild Wilderness v.
Allen, 871 F.3d 719, 728 (9th Cir. 2017) (obligation to consider alternatives “lessened but still
extant when preparing an EA instead of an EIS”); 40 C.F.R. § 1508.9(b) (applying analysis of
proposed alternatives to EA). The reasonable range of alternatives is derived from the Purpose
and Need section of the EIS. See City of Carmel-by-the-Sea v. United States Dept. of Transp.,
123 F.3d 1142, 1155 (9th Cir. 1997); 40 C.F.R. § 1502.13. “Agencies enjoy considerable
discretion in defining the purpose and need of a project, but they may not define the project’s
objectives in terms so unreasonably narrow, that only one alternative would accomplish the goals
of the project.” HonoluluTraffic.com, 742 F.3d at 1230 (internal quotation omitted). Those
MEMORANDUM DECISION AND ORDER - 23
challenging the failure to consider an alternative have a duty to show that the alternative is
viable. See City of Angoon v. Hodel, 803 F.2d 1016, 1021-22 (9th Cir. 1986).
“Judicial review of the range of alternatives considered by an agency is governed by a
rule of reason that requires an agency to set forth only those alternatives necessary to permit a
reasoned choice.” HonoluluTraffic.com, 742 F.2d at 1231 (internal quotation omitted). “The
‘rule of reason’ guides both the choice of alternatives as well as the extent to which the [EIS]
must discuss each alternative.” Carmel-by-the-Sea, 123 F.3d at 1155 (citations omitted). “An
agency is under no obligation to consider every possible alternative to a proposed action, nor
must it consider alternatives that are unlikely to be implemented or those inconsistent with its
basic policy objectives.” HonoluluTraffic.com, 742 F.2d at 1231 (internal quotation omitted);
see also 43 C.F.R. § 46.420(b) (defining reasonable alternatives as “alternatives that are
technically and economically practical or feasible and meet the purpose and need of the proposed
action.”). Nor does an agency need to discuss alternatives similar to alternatives actually
considered, or alternatives which are “infeasible, ineffective, or inconsistent with the basic policy
objectives for the management of the area.” N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969,
978 (9th Cir. 2006) (internal citation and quotation omitted). NEPA regulations do not outline a
numerical requirement to satisfy the alternatives requirement. See Native Ecosystems Council v.
U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005).8
8
Federal Defendants state that “an agency can meet NEPA requirements when
considering just two alternatives (a ‘no action’ alternative and a ‘proposed alternative’) in its
EA.” Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 18. But this is possible “[s]o long as
‘all reasonable alternatives’ have been considered and an appropriate explanation is provided as
to why the agency did not consider any of the proposed alternatives.” Native Ecosystems, 428
F.3d at 1246 (emphasis added); see also Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d
1005, 1016 (9th Cir. 2006) (holding that agency adequately considered alternatives because
explanations for eliminating alternatives “were not arbitrary or capricious”).
MEMORANDUM DECISION AND ORDER - 24
What NEPA requires is that the agencies “[r]igorously explore and objectively evaluate
all reasonable alternatives” that relate to the purposes of the project and briefly discuss the
reasons for eliminating any alternatives from detailed study in the EIS. Alaska Survival v.
Surface Transp. Bd., 705 F.3d 1073, 1087 (9th Cir. 2014); see also Carmel-by-the-Sea, 123 F.3d
at 1155 n.10 (quoting 40 C.F.R. § 1502.14(a)); Westlands Water Dist. v. U.S. Dep’t of Interior,
376 F.3d 853, 870-72 (9th Cir. 2004) (agency can explain why it eliminated suggested
alternatives from detailed consideration in response to public comments). “The existence of a
viable but unexamined alternative renders an [EIS] inadequate.” Friends of Yosemite Valley v.
Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008) (internal quotation omitted). “[T]he crucial
inquiry for the Court is whether [the] selection and discussion of alternatives fosters informed
decision-making and informed public participation.” California v. Block, 690 F.2d 753, 767 (9th
Cir. 1982).
Here, for each of the Phase Two lease sales, BLM considered only two alternatives: (1)
leasing all proposed parcels (the proposed alternative), and (2) leasing none (the “no action”
alternative). See supra. But, for each of these lease sales, Plaintiffs requested that BLM
additionally study a middle-ground alternative that would defer parcels in sage-grouse PHMA.
See id. Plaintiffs contend that BLM rejected this “citizen-proposed” alternative for each lease
sale without adequate explanation in violation of NEPA. Pls.’ Mem. ISO MSJ, pp. 17-19.
Federal Defendants and Defendant-Intervenors disagree, arguing that BLM’s alternatives are
reasonable and comply with NEPA and that BLM had already fully analyzed Plaintiffs’ “citizen
alternative” in any event within the 2015 RMPs. See generally Fed. Defs.’ Mem. ISO MSJ and
Opp. to Pls.’ MSJ, pp. 17-21; WEA’s Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 6-10; Wyo.’s
Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 14-18.
MEMORANDUM DECISION AND ORDER - 25
Within the applicable EA for the corresponding Phase Two lease sale, Federal
Defendants offered9 various justifications for rejecting Plaintiffs’ proposed (but ultimately
rejected) alternative – these are identified in the chart below:
Lease Sale
EA
High Plains EA
February 2017
Wyoming
Wind River/BB
EA
June 2017
Montana
Miles City
EA
June 2017
Wyoming
High Desert
EA
Justification
“[T]he impacts from an alternative that would
consider not leasing in core are imbedded within the
No Action alternative.” WY 91974
“[T]he impacts from an alternative that would
consider not leasing in core are imbedded within the
No Action alternative.” WY 92124
“No other alternatives . . . would meet the purpose
and need of the proposed action.” WY 92050
September 2017
Wyoming
No explanation. BLM-MT-2Q17-2410
“No other alternatives . . . would meet the purpose
and need of the proposed action alternative analysis.”
WY 102613
High Plains
EA
“The . . . RMPs, through the revision/amendment
process, considered a range of alternatives.” WY
113556
“[T]he no action alternative, effectively addresses
deferring all the parcels from lease sale.” WY
113556.
Wind River/BB
EA
“No other alternatives . . . would meet the purpose
and need of the proposed action.” WY 113585
See Appx. to Pls.’ Resp./Reply Brief ISO MSJ, p. 31. For the reasons that follow, each
justification (as well as any additional ones offered later) is without merit.
First, Plaintiffs’ proposed alternative does not align with the no action alternative (for the
February and September 2017 Wyoming lease sales). Plaintiffs’ partial-deferral alternative
9
Plaintiffs argue that the “Court may affirm each of the six EAs . . . only on the grounds
that particular EA invoked for rejecting Plaintiffs’ alternative – not the post hoc rationalizations
of counsel.” Pls.’ Resp./Reply Brief ISO MSJ, p. 4. This Decision attempts to address both.
MEMORANDUM DECISION AND ORDER - 26
involves the deferral of some (but not all) parcels. The no action alternative, however,
contemplates that no parcels be offered for lease. The distinction is obvious and highlights the
existence of an alternative in between an all-or-nothing approach. This means that Plaintiffs’
proposed alternative – even if promoting the deferral of parcels within greater sage-grouse
habitat (including both PHMA and GHMA)10 – speaks to and advocates for the deferral of at
least a subset of those same parcels (for example, deferring those parcels in PHMA). Hence, the
existence of such an alternative stands uniquely and substantively apart from both the proposed
action and no action alternatives. See, e.g., WY 79368-69 (“The High Plains District February
2017 leasing EA fails to meet this core NEPA obligation by arbitrarily excluding from
consideration any alternative that could meaningfully preserve BLM Wyoming offices’ authority
to adopt effective and scientifically credible conservation measures for greater sage-grouse.”)
(emphasis added); see also WY 110303 (same). In short, Plaintiffs’ proposed alternative was not
and could not have been realistically “imbedded” within the no action alternative.
Second, it is unclear how Plaintiffs’ proposed alternative was inconsistent with the
purpose and need of any of the proposed actions (as stated in the EAs for the February, June, and
10
Federal Defendants focus on this aspect of Plaintiffs’ proposed alternative, arguing
that, because nearly all of the parcels offered in the two lease sales were in PHMA or GHMA, it
amounted to an “alternative that would have offered virtually no parcels in the sale.” See Fed.
Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 19 (“[B]y analyzing the no action alternative,
[BLM] had effectively analyzed the alternative proposed by Plaintiffs of deferring all Sage
Grouse parcels from the sale.”). Plaintiffs dispute this hyper-technical, encompassing reading of
their proposed alternative. See Pls.’ Resp./Reply Brief ISO MSJ, p. 5 (citing WY 79331) (noting
that, for February 2017 Wyoming lease sale, comment stated, in part: “‘No leasing in Core
Areas’ is one reasonable alternative”). Still, Federal Defendants’ approach ignores not only the
space between the proposed action and no action alternatives that Plaintiffs’ proposed alternative
occupies (see infra), but also how, even if true, deferring “virtually all” parcels from the lease
sales (because “nearly all” of the parcels were in PHMA or GHMA) still does not square up with
the no action alternative itself. See, e.g., Colorado Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233,
1248-50 (D. Colo. 2012) (agencies may not reject otherwise reasonable alternative out of hand
simply because it shares some characteristics of no action alternative).
MEMORANDUM DECISION AND ORDER - 27
September 2017 Wyoming lease sales). To be sure, BLM was already obligated to prioritize
new leasing outside greater sage-grouse habitat via the 2015 Plan Amendments;11 had previously
deferred parcels in greater sage-grouse habitat before commencing the NEPA process; and, had
even listed a specific alternative that contemplated the same deferral of parcels for greater sagegrouse within the June 2017 Wyoming EA’s Table of Contents (though not actually discussing
that alternative at all in the EA’s body). See supra. These concepts were not mutually exclusive
such that, without more, Plaintiffs’ proposed alternative was not contrary to the purpose and need
of the proposed actions. See, e.g., WY 102608 (June 2017 Wyoming EA defining “purpose and
need” as “provid[ing] for exploration and development of additional oil and gas resources to help
meet the nation’s need for energy sources, while protecting other resource values in accordance
with guidance laws, regulations, and Land Use Planning decisions.”) (emphasis added);
compare with WY 92046, 113581 (stated purposed for February and September 2017 Wyoming
EAs was “to make mineral resources available[.]”).12
Third, the September 2017 Wyoming (High Plains) EA’s suggestion that the RMPs
adequately considered a range of alternatives misses the point. If the RMP planning alternatives
11
In this sense, WEA’s argument that Plaintiffs’ proposed alternative “was contrary to
BLM’s governing statutory mandates . . . and the plain language of the governing land use plans
that designated these lands as open for oil and gas leasing” is misplaced. WEA’s Mem. ISO
MSJ and Opp. to Pls.’ MSJ, p. 9. There is no obligation to lease nominated parcels or prioritize
mineral development over other land uses.
12
To the extent BLM’s objective was to maximize the availability of mineral resources,
it would violate NEPA. See supra (“Agencies enjoy considerable discretion in defining the
purpose and need of a project, but they may not define the project’s objectives in terms so
unreasonably narrow, that only one alternative would accomplish the goals of the project.”)
(quoting HonoluluTraffic.com, 742 F.3d at 1230); see also Nat’l Parks & Conservation Ass’n,
606 F.3d at 1070 (“An agency may not define the objectives of its action in terms so
unreasonably narrow that only one alternative from among the environmentally benign ones in
the agency’s power would accomplish the goals of the agency’s action.”).
MEMORANDUM DECISION AND ORDER - 28
simultaneously represented leasing alternatives moving forward, there would be no requirement
to conduct the analysis which is the “heart” of NEPA, to-wit, to analyze alternatives for any
project undertaken pursuant to a land use plan, including the oil and gas lease sales at play here.
The Court will not stake such broad ground here; indeed, doing so would potentially obviate the
need to consider and examine viable, site-specific alternatives presented by others following the
public comment period, further contributing to the Court’s reluctance in endorsing this isolated
rationale for rejecting Plaintiffs’ proposed alternative.13
In sum, for the most part, the Court takes no issue with the amount of detail that BLM
provided here in rejecting Plaintiffs’ proposed alternative; instead, it takes issue with the
substance of those responses and finds it lacking. See, e.g., Wildearth Guardians, 457 F. Supp.
3d at 892.14 BLM’s responses tell Plaintiffs nothing about why or how their proposed alternative
either is subsumed by the no action alternative/RMPs, or does not meet the purpose and need of
the proposed actions. See id. (“BLM cannot satisfy NEPA without some explanation beyond the
conclusory one that it provided to Wildearth.”). This is not enough. BLM violated NEPA by
failing to provide an adequate explanation of why it failed to consider the reasonable alternative
of deferring priority greater sage-grouse habitat.15
13
The Court also notes Plaintiffs’ dispute with Defendant-Intervenors’ claim that the
2015 RMP EISs already considered and rejected the option of closing all PHMA to leasing. See
Pls.’ Resp./Reply Brief ISO MSJ, p. 9 (“The 2015 Buffalo RMP EIS did not consider an
alternative that would close PHMA to leasing, and most (53 of 81) of the Phase Two PHMA
parcels are in that field office.”). The argument also incorrectly assumes that Plaintiffs’
proposed alternative does not contemplate something less than the complete closure of PHMA to
leasing. See supra.
14
Of course, the June 2017 Montana lease sale provided no explanation at all for
rejecting Plaintiffs’ proposed alternative. See supra.
15
Federal Defendants point out that BLM deferred a significant number of parcels from
its sales already, amounting to a de facto consideration of a middle-ground alternative. See Fed.
Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 20. But the post-deferral proposed actions are
MEMORANDUM DECISION AND ORDER - 29
C.
BLM Failed to Take a Hard Look at the Direct and Indirect Impacts to Greater
Sage-Grouse
NEPA requires site-specific analysis as soon as is reasonably possible, and before any
“irreversible and irretrievable commitment of resources.” California v. Block, 690 F.2d 753, 765
(9th Cir. 1982). Oil and gas leases can constitute such a commitment. See Connor v. Burford,
848 F.2d 1441, 1451 (9th Cir. 1988) (“unless surface-disturbing activities may be absolutely
precluded, the government must complete an EIS before it makes an irretrievable commitment of
resources by selling non-NSO leases.”); see also N. Alaska Envtl. Ctr. v. U.S. Dept. of Interior,
983 F.3d 1077, 1086 (9th Cir. 2020) (“NAEC”) (“A lease that does not retain an absolute right to
prohibit surface-disturbing activities, even if it retains the right to impose mitigating conditions,
constitutes an irreversible and irretrievable commitment of resources and therefore does require a
site-specific EIS.”). There is no dispute that the Phase Two lease sales required such a sitespecific analysis (at least to some degree); the parties disagree, however, on whether that
requirement was satisfied here – in particular, whether BLM properly assessed baseline
conditions in each lease area and, relatedly, whether BLM properly assessed the impacts of each
lease sale on greater sage-grouse. Plaintiffs claim BLM did not, while Federal Defendants and
Defendant-Intervenors claim BLM did. Compare generally Pls.’ Mem. ISO MSJ, pp. 19-32,
with Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 21-41; WEA’s Mem. ISO MSJ and
Opp. to Pls.’ MSJ, pp. 10-20; Wyo.’s Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 18-23.
1.
BLM Failed to Assess Baseline Conditions in Each Lease Sale Area
“NEPA requires that the agency provide the data on which it bases its environmental
analysis.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1083 (9th
still proposed actions that must go through the NEPA analysis; they do not somehow exist to
displace this requirement. See Pls.’ Resp./Reply Brief ISO MSJ, p. 10 (“A proposed action
cannot serve as an alternative to itself.”).
MEMORANDUM DECISION AND ORDER - 30
Cir.2011). “Such analyses must occur before the proposed action is approved” because “‘once a
project begins, the pre-project environment becomes a thing of the past and evaluation of the
project’s effects becomes simply impossible.’” Id. (quoting LaFlamme v. F.E.R.C., 852 F.2d
389, 400 (9th Cir. 1988)). Thus, “[e]stablishing appropriate baseline conditions is critical to any
NEPA analysis.” Great Basin Res. Watch v. BLM, 844 F.3d 1095, 1101 (9th Cir. 2016).
“Without establishing the baseline conditions which exist . . . before [a project] begins, there is
simply no way to determine what effect the [project] will have on the environment and,
consequently, no way to comply with NEPA.” Id. “An agency need not conduct measurements
of actual baseline conditions in every situation . . . [b]ut whatever method the agency uses, its
assessment of baseline conditions ‘must be based on accurate information and defensible
reasoning.’” Id. (quoting Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562, 570 (9th Cir. 2016)).
Plaintiffs argue that BLM failed to assess the baseline conditions of greater sage-grouse
populations and habitat in each lease area, claiming that, while the Phase Two lease sale EAs
disclose the number or acreage of greater sage-grouse parcels, none of them provide an
evaluation of actual “baseline conditions,” including “information on local population trends;
habitat function and conditions; the extent of existing leasing and anthropogenic development; or
the lease area’s role in population connectivity.” Pls.’ Mem. ISO MSJ, p. 20. Federal
Defendants disagree, countering that BLM appropriately analyzed the baseline conditions in each
of the leasing areas via the EAs themselves, alongside the incorporated RMP EISs. See Fed.
Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 25; see also WEA’s Mem. ISO MSJ and Opp.
to Pls.’ MSJ, p. 10. Plaintiffs’ challenge on this point therefore turns on how well these EAs and
RMP EISs confront and assess the requisite baseline conditions. The Court concludes that each
of them falls short.
MEMORANDUM DECISION AND ORDER - 31
To begin, Federal Defendants’ briefing confirms that, for the most part, the EAs’ utility
in analyzing baseline conditions extends only to understanding the amount of particular greater
sage-grouse parcels associated with the Phase Two lease sales. See Fed. Defs.’ Mem. ISO MSJ
and Opp. to Pls.’ MSJ, pp. 26-28.16 Though unquestionably important and useful, such factbased information is only a simple snapshot inventory of involved greater sage-grouse parcels; it
is not, however, any sort of analysis of the baseline conditions. In other words, the EAs
themselves do not sufficiently speak to baseline conditions.
But the EAs do not exist in isolation – they incorporate/tier to the RMP EISs and,
according to Federal Defendants, collectively operate to address the baseline conditions leading
up to the Phase Two lease sales, in compliance with NEPA. See, e.g., id. (“The EA also refers to
Chapter 2 of the Miles City RMP” (for June 2017 Montana lease sale); “Further information
about the condition of Sage Grouse, its habitat, and population trends is contained in the Buffalo
EIS and the Wyoming Nine EIS. . . . The EA also refers to the baseline conditions analyzed in
the Bighorn Basin EIS” (for February 2017 Wyoming lease sale); “Additional analysis of the
baseline is contained in the Wyoming Nine EIS to which the EA tiers” (for June 2017 Wyoming
lease sale); “Further information about the condition of Sage Grouse, its habitat, and population
trends is contained in the Buffalo EIS and the Wyoming Nine EIS. . . . Additional analysis of the
baseline conditions with respect to Sage Grouse is contained in the Bighorn Basin EIS” (for
September 2017 Wyoming lease sale)). A careful examination of these RMP EISs, however,
reveals that they are equally limited in understanding and evaluating baseline conditions.
16
Plaintiffs acknowledge that the September 2017 Wind River/Bighorn Basin EA and
June 2017 Wyoming EA also disclosed that PHMA parcels are proximate to existing leases held
by production (but then question why “no similar information is provided for GHMA parcels”)
and that the June 2017 Wyoming EA also disclosed the basic habitat function for each parcel.
Pls.’ Mem. ISO MSJ, p. 20; see also Pls.’ Resp./Reply Brief ISO MSJ, p. 12 n.4 (noting that
June 2017 Montana and Wyoming EAs “disclose somewhat more information” but still lacking).
MEMORANDUM DECISION AND ORDER - 32
It is to be expected that the RMP EISs contain a lot of information relating to greater
sage-grouse, with Federal Defendants’ references to the same in this context being equally
voluminous. Yet, on the whole, the RMP EISs merely provide an overview of the general
condition of greater sage-grouse across each planning area, setting the stage for future land use
decisions in broad strokes (and as of that point in time).17 For example, the delineation of
administrative habitat classifications (GHMA and PHMA) within these materials – while
absolutely relevant toward understanding an overview of the Phase Two lease sales’ geographic
footprint – is too generalized to be helpful in assessing baseline conditions of a specific lease
area. See, e.g., Pls.’ Resp./Reply Brief ISO MSJ, p. 12 (“For example, the maps could not
reasonably be used to obtain information about individual parcels because of their scale and
format.”).
Moreover, albeit plentiful and expansive, the content of such historical accounts spread
across the RMP EISs cannot be distilled down to represent up-to-date baseline conditions of
greater sage-grouse populations and habitat in each lease sale area. See id. at pp. 12-13
(“[D]escriptions of how sage-grouse numbers have historically trended across an entire planning
area do not assist BLM or the public in determining whether individual leks or populations in the
lease areas are stable or tanking. . . . . [N]one of the pages Federal Defendants cite contain the
baseline information required under NEPA, such as identifying leks and seasonal habitat use
within the lease parcels.”) (emphasis added); See also, e.g., W. Watershed Project v. Ruhs, 701
F. Appx. 651, 653 (9th Cir. 2017) (“Because these prior analyses [(the Ely Proposed RMP/EIS)]
17
Federal Defendants state that, “[b]ecause the EISs for the Plan Amendments were
completed in 2015, the information obtained during the plan amendment process was 1 or at
most 2 years old, and therefore BLM did not rely on stale data in preparing the EAs.” Fed.
Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 29. Plaintiffs disagree, responding that, “[o]f
the little baseline data contained in the cited pages, most is also outdated by 5-10 years . . . .”
Pls.’ Resp./Reply Brief ISO MSJ, p. 12.
MEMORANDUM DECISION AND ORDER - 33
cover larger regions, they note that site-specific analyses will be necessary in future projects
covering more narrowly defined areas.”). NEPA requires this so that the “boots-on-the-ground”
characteristics of lease parcels can be understood and examined comparatively, one against
another, vis à vis potential lease sales.
At bottom, the RMP EISs cannot be scoured for information that could amount to the
baseline conditions at the time of the Phase Two lease sales. NEPA requires more, so that the
leasing decisions’ effects on greater sage-grouse can be meaningfully gauged. See N. Plains Res.
Council, Inc. v. Surface Transp. Bd., 668 F.3d at 1084) (reversing due to inadequate baseline
information on greater sage-grouse lek locations and wintering habitat areas); Wildearth
Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920 (9th Cir. 2015) (same, but for big game
winter range within applicable project area).
2.
BLM Failed to Assess the Impacts of the Lease Sales on Greater Sage-Grouse
“NEPA requires that the evaluation of a project’s environmental consequences take place
at an early stage in the project’s planning process.” Jayne v. Sherman, 706 F.3d 994, 1007-08
(9th Cir. 2013) (citing Friends of Yosemite Valley v. Norton, 348 F.3d 789 (9th Cir. 2003)); see
also Wildearth Guardians, 457 F. Supp. 3d at 885 (“NEPA’s ‘hard look’ obligation requires
agencies to consider potential environmental impacts, including ‘all foreseeable direct and
indirect impacts,’ and ‘should involve a discussion of adverse impacts that does not improperly
minimize negative side effects.’”) (quoting Kempthorne, 457 F.3d at 975). “That requirement,
however, is tempered by (1) the statutory command that [a reviewing court] focuses upon a
proposal’s parameters as the agency defines them, and (2) the preference to defer detailed
analysis until a concrete development proposal crystallizes the dimensions of a project’s
probable environmental consequences.” Jayne, 706 F.3d at 1007-08 (internal quotations, citation
omitted). “To accommodate these concerns, NEPA requires a full evaluation of site-specific
MEMORANDUM DECISION AND ORDER - 34
impacts only when a critical decision has been made to act on site development, i.e., when the
agency proposes to make an irreversible and irretrievable commitment of the availability of
resources to a project at a particular site.” Id.; see also Pit River Tribe v. U.S. Forest Serv., 469
F.3d 768, 784 (9th Cir. 2006) (“Once a critical decision is made, though, any vague prior
programmatic statements are no longer enough.”). Such a site-specific evaluation must include
“data-gathering and analysis of system-wide impacts.” See Friends of Yosemite Valley, 348 F.3d
at 801 (finding data-gathering and analysis of system-wide impacts not required at programmatic
EIS stage); Block, 690 F.2d at 761 (explaining that considerations regarding the adequacy of a
programmatic EIS may differ from those for a site-specific EIS).
Plaintiffs argue that BLM “failed to conduct any analysis of the site-specific impacts of
each lease sale on greater sage-grouse, or reasonably explain why this analysis was not possible,
instead deferring all site-specific analysis to the APD [(application for permit to drill)] stage.”18
Pls.’ Mem. ISO MSJ, p. 22. Federal Defendants disagree, claiming that “BLM conducted an
appropriate analysis of impacts to Sage Grouse at the oil and gas leasing stage. See Fed. Defs.’
Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 31 (emphasis added); see also id. at p. 32 (“At the time
of the leasing decision, BLM does not known which sites will be developed within the leased
parcels, which may encompass thousands of acres, and it has no development plans before it. It
is therefore appropriate for BLM to leave the analysis of specific development plans to a later
18
BLM employs a three-stage decision-making process for managing public lands for oil
and gas leasing and development – first, BLM broadly assesses the presence of minerals and
other resources on public lands through land-use planning, which includes determining areas
open to and closed to potential oil and gas development, and determining, for open areas, what
conservation stipulations should apply to future leases; second, BLM conducts a NEPA review
and holds competitive oil and gas lease sales on a quarterly basis pursuant to the Mineral Leasing
Act; and third, BLM determines whether, and under what conditions, it will approve specific
development proposals (the lessee must submit an APD to the local BLM field office for
approval to conduct drilling or other surface disturbance on the lease). See generally Fed. Defs.’
Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 5-7; Pls. Mem. ISO MSJ, pp. 9-10.
MEMORANDUM DECISION AND ORDER - 35
stage.”). From this, the question to be resolved is not whether an analysis of the site-specific
impacts of the Phase Two lease sales is needed (it is), but whether BLM analyzed those impacts
in enough detail at the oil and gas leasing stage. The Court concludes that it did not sufficiently
conduct such an analysis.
“The Ninth Circuit for decades has held that NEPA requires at least some ‘site-specific
analysis’ at the leasing stage, when this stage represents an ‘irretrievable commitment of
resources.’” Wildearth Guardians, 457 F. Supp. 3d at 888 (quoting Kempthorne, 457 F.3d at
975-76 (“There is no question here that approval of the leasing program represents an
irretrievable commitment of resources. The issue is whether it was sufficiently site-specific.”));
see also Conner, 848 F.2d at 1451 (agreeing with District of Columbia Circuit in Sierra Club v.
Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983), that “an EIS assessing the full environmental
consequences of leasing must be prepared at the point of commitment – when the leases are
issued.”). Even so, a parcel-by-parcel analysis is not necessarily required. See Wildearth
Guardians, 457 F. Supp. 3d at 888 (speaking to BLM’s multi-stage oil and gas leasing projects:
“BLM has no guarantee at the leasing stage of what, if any, projects may materialize for that
parcel,” while also acknowledging that the ability to assess impacts at leasing stage “will vary
greatly depending on the location of a well within a specific parcel”). “As a result, BLM’s
analysis may be relatively general at the leasing stage,” but still may comply with “NEPA’s
hard-look requirement with a forecast as specific as the information it has at the leasing stage
allows.” Id. at 888-89 (citing Ctr. for Biological Diversity v. BLM, 2018 WL 236727, at *10 (D.
Nev. 2019)); see also Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 498 (9th Cir. 2014)
(deferring to agency’s judgment about appropriate level of analysis “so long as the EIS provides
as much environmental analysis as is reasonably possible under the circumstances, thereby
‘provid[ing] sufficient detail to foster informed decision-making’ at the stage in question.”)
MEMORANDUM DECISION AND ORDER - 36
(quoting Friends of Yosemite Valley, 348 F.3d at 800). Hence, mindful of the obligation to
examine site-specific impacts at the leasing stage, the Court examines the extent to which BLM
addressed the same – specifically, impacts pertaining to greater sage-grouse. See, e.g., Fed.
Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 31-32 (“Thus, Conner establishes that the
leasing decision triggers the obligation to comply with NEPA, but it does not dictate the degree
of NEPA analysis that is required at the leasing stage.”).
The involved EAs speak generally to the impacts of the Phase Two lease sales on greater
sage-grouse. For example, the February 2017 Wind River EA states:
The greater sage-grouse is a BLM sensitive species that is ubiquitous in the
WR/BBD. There are no direct impacts to sage-grouse or their habitat through
the administrative action of leasing. Indirect effects from leasing may occur
to sage-grouse habitat if development were to occur at the time of a sitespecific application, such as an APD, the area will be evaluated for sagegrouse and further conditions of approval to mitigate adverse impacts to sagegrouse habitat may be imposed at that time.
WY 92081; see also WY 113621 (same for September 2017 Wind River EA); WY 113376-77
(mostly same for September 2017 High Plains EA, but stating: “There are many sources of
habitat fragmentation, all of which may affect the Greater Sage-grouse” and “it is possible that
wildlife populations and habitats could be impacted by these activities [(if a lease is
developed)].”); WY 91034-35 (same for February 2017 High Plains EA); WY 102676 (mostly
same for June 2017 Wyoming EA, but stating: “In the event post-lease development without
appropriate stipulations were to occur on leases in Greater Sage-Grouse habitat it could
potentially result in surface disturbing and/or disruptive activities within 2 miles or greater of
grouse lek or other known nesting habitats during the nesting period, within winter concentration
areas, and/or within ¼ mile or greater of leks that are located outside of PHMA, during the
breeding season and/or direct mortality. Direct and/or indirect impacts could result in habitat
fragmentation, reduced breeding success and/or nest abandonment as well as cause Greater SageMEMORANDUM DECISION AND ORDER - 37
Grouse to move to less suitable winter habitat.”); BLM-MT-2Q17-2447 (no analysis for June
2017 Montana EA). Plaintiffs submit that such statements within the EAs are not enough to
constitute the required “hard look” at the direct and indirect impacts on greater sage-grouse. See
Pls.’ Mem. ISO MSJ, pp. 24-25 (“Such ‘[g]eneral statements about possible effects’ do not
constitute a hard look.”) (quoting Blue Mtns. Biodiversity Project v. Blackwood, 161 F.3d 1208,
1213 (9th Cir. 1998)).
The Court agrees. Even in the EAs themselves, the agency acknowledges the hamstrung
nature of its site-specific analyses. See, e.g., WY 91020 (February 2017 High Plains EA: “The
BLM cannot determine at the leasing stage whether or not a nominated parcel will actually be
sold and, if it is sold and a lease is issued, whether or not the lease would be explored or
developed. Because well location(s) cannot be determined at this point, the impacts discussed in
this chapter are not site-specific.”) (emphasis added); WY 113358 (same for September 2017
High Plains EA); WY 102661 (mostly same for June 2017 Wyoming EA, adding: “”[T]he
impacts listed below are more generic, rather than site-specific.”). And it is for this exact reason
(the inchoate nature of the oil and gas leasing/development process) that Federal Defendants
argue that such site-specific analyses are impossible at the leasing stage (and consequently not
necessary under NEPA). See Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 39-40
(“[W]hat [Plaintiffs] cannot, and do not, refute is that BLM did not have information about the
location of site specific oil and development projects; nor does BLM know when they will be
proposed or what the projects will entail. Therefore, BLM was not required to conduct a more
detailed analysis at the lease stage. The analysis that Plaintiffs are asking for would have
required BLM to speculate about the location and nature of drilling operations, which generally
occupy approximately 10 acres, within lease parcels that may be 1,000 acres or more. Such
speculation is not required by NEPA.”) (internal citations omitted, emphasis in original).
MEMORANDUM DECISION AND ORDER - 38
Federal Defendants’ argument in this respect tracks logically enough. But to the extent
they suggest a complete deferral of a site-specific impacts analysis to a time when a project
comes into better focus, the Court cannot agree. To be clear, that such an analysis may be
required later at the APD stage does not mean that it is unnecessary at the leasing stage – it is,
and depends “on the specificity of the ‘reasonably foreseeable’ environmental impacts in light of
the factual context.” NAEC, 983 F.3d at 1088-89 (quoting New Mexico ex rel. Richardson v.
BLM, 565 F.3d 683, 718 (10th Cir. 2009)); see also id. at 1088 (“If it is reasonably possible to
analyze the environmental consequences of a particular type at a particular stage, the agency is
required to perform that analysis.”) (internal quotation omitted). Plaintiffs contend that BLM
could have and should have done more at the leasing stage, and a choice not to do so violates
NEPA. See Pls.’ Mem. ISO MSJ, p. 25 (“It was reasonably possible for BLM to conduct some
manner of site-specific analysis here.”).
According to Plaintiffs, BLM had at its disposal (though its own databases and from
cooperating state agencies) “far more detailed information” on: (1) lek locations and seasonal
habitat use (nesting, brood-rearing, winter habitat); (2) annual lek counts and breeding
population trends; (3) the percentage of habitat already affected by anthropogenic disturbance;
and (4) evidence of other recent disturbances, such as wildfires, development approvals, and
West-Nile virus outbreaks. Id. at pp. 20-21, 25 (citing WY 99466-71, 75151-66, 106976-7013,
88545-51); see also Pls.’ Resp./Reply Brief ISO MSJ, pp. 14, 17 (citing same and Folder G of
Admin. Rec. Drive, WY 62037-63, 62058, 62070). Further, already-embedded Reasonably
Foreseeable Development Scenario(s) (“RFDs”) projected the rate of well drilling and surface
disturbances on the leased parcels. See, e.g., Pls.’ Mem. ISO MSJ, p. 25 (citing BLM-MT-2Q172602 (June 2017 Montana EA: “The [RFD] scenario for the area of analysis is based on
information contained in the 2015 MCFO FEIS . . . . The MCFO RFD contains projections of
MEMORANDUM DECISION AND ORDER - 39
the number of possible oil and gas wells that could be drilled and produced in the MCFO area
and it is used to analyze the projected wells [(in terms of high, medium, or low potential
development)] for the 190 nominated lease parcels . . . .”)); Pls.’ Resp./Reply Brief ISO MSJ, p.
17 (citing same and WY 60413 (“Table 2-10. Reasonably Foreseeable Development Scenario for
Federal Oil and Gas and Coalbed Natural Gas Wells and Associated Surface Disturbance
Acres”), WY 106997 (lease sale map delineating areas as having high, medium, and low “Oil &
Gas Potential”)).
The upshot of this is to highlight the existence of additional information and data that
could have informed a more site-specific impacts analysis than what BLM actually performed
(without knowing the exact locations of future wells, roads, pipelines, and other facilities). See
Conner, 848 F.2d at 1450-51 (“The government’s inability to fully ascertain the precise extent of
the effects of mineral leasing in a national forest is not, however, a justification for failing to
estimate what those effects might be before irrevocably committing to the activity. Appellants’
suggestion that we approve now and ask questions later is precisely the type of environmentally
blind decision-making NEPA was designed to avoid.”) (internal citation omitted).
Federal Defendants acknowledge the existence of such information and even tout how
“BLM used that information to aid in its analysis and, in some instances, to make decisions to
defer parcels in Sage Grouse habitat.” Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp.
30, 40 (“Thus, contrary to Plaintiffs assertion, the record shows that BLM did analyze
information about Sage Grouse populations and used such information to make decisions about
which parcels to lease and what stipulations to apply.”).19 Paradoxically, these particular
19
WEA makes a similar argument, equating BLM’s imposition of stipulations required
under the RMPs and application of its Density Disturbance Calculation Tool as examples of sitespecific analyses. See WEA’s Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 11-15. But these are
MEMORANDUM DECISION AND ORDER - 40
attempts to describe the nature of BLM’s analysis instead serve to underscore Plaintiffs’ point –
namely, that BLM did not engage in a transparent analysis of the direct and indirect impacts of
the Phase Two lease sales on greater sage-grouse, consistent with what NEPA calls for. See Pls.’
Resp./Reply Brief ISO MSJ, pp. 14-15 (citing Blue Mtns. Biodiversity Project, 161 F.3d at 1214
(“[The EA] is where the Forest Service’s defense of its position must be found.”); Mont.
Snowmobile, 790 F.3d at 925-28 (administrative record materials not included or inadequately
referenced in EIS cannot substantiate NEPA analysis and need for public access to information
about impacts)).
Moreover, as before, BLM’s tiering to the RMP EISs only goes so far. For the most part,
these materials considered impacts to greater sage-grouse as between various plan alternatives.
See BLM-MT-2Q17-1290-91 (Miles City EIS); WY 54324-27, 29-31 (Lander EIS); WY 5867677 (Buffalo EIS); WY 64715-17, 64744-46 (Bighorn Basin EIS); WY 61544-50 (Wyoming Nine
EIS). The resulting hierarchy amongst the alternatives does not (and cannot) reflect the sort of
effective site-specific impacts analysis contemplated by NEPA.20 Most importantly, BLM
less NEPA-required analyses of site-specific impacts and more formulaic, intra-office (not
public) applications of measures aligning with given circumstances. They are not the same.
20
This disconnect is apparent when cross-referencing the seemingly inconsistent
statements between the later EAs and the earlier RMP EISs. E.g., Compare WY 113624
(September 2017 Wind River EA: “The Proposed Action alternative would allow mineral
development to occur while protecting sage-grouse habitats.”), with WY 54650-51 (Lander EIS:
“On the limited amount of federal lands where stipulations apply, greater sage-grouse will
receive the lower level of protection applied to non-Core Area, which will likely lead to
substantial impacts to greater sage-grouse because only ¼ mile around leks will be closed to
surface disturbance. . . . Increased levels of noise and human activity, ,combined with smaller
lek buffers and increased habitat fragmentation from surface disturbance, will likely render these
areas avoided or unusable by greater sage-grouse.”); compare also WY 113377 (September 2017
High Plains EA: “With application of SOPs, applied mitigation, required design features and
COAs identified for Greater Sage-grouse under the proposed RMP amendment/revision, impacts
caused by surface-disruptive activities would be minimized.”), with WY 58677 (Buffalo EIS:
“Loss of population viability of Greater Sage-Grouse could occur within the planning area . . . .
MEMORANDUM DECISION AND ORDER - 41
expressly deferred such analysis to later implementing decisions. See, e.g., WY 62675
(Wyoming Nine EIS: “Land use plan-level analyses are typically broad and qualitative rather
than quantitative or focused on site-specific actions. . . . As specific actions that may affect the
area come under consideration, the BLM and the Forest Service will conduct subsequent NEPA
analyses that include site-specific project and implementation-level actions. The site-specific
analyses will tier to the plan-level analysis and expand the environmental analysis when more
specific information is known. In addition, as required by NEPA, the public will be offered the
opportunity to participate in the NEPA process for implementation of actions.”): WY 65365
(mostly same for Bighorn Basin EIS); WY 67211 (Buffalo ARMPA characterizing NEPA
compliance as “broad-scale” and that “implementation of these and other decisions in the RMP
may require additional site-specific NEPA analysis.”); BLM-MT-2Q17-192 (Miles City
ARMPA: “While the MCFO PRMP/FEIS constitutes compliance with NEPA for the broadscale decisions made in this ARMP, the BLM will continue to prepare environmental
assessments (EAs) and EISs where appropriate as part of implementation level planning and
decision-making.”). Simply put, the RMP EISs are too generic to foster informed decisionmaking about leasing in particular locations.
The Court is aware that the question is a close one and the Court has considered the
respective arguments and the record carefully, attentive to the various factors tugging in each
direction and the ample room for argument to fill the resultant void. Federal Defendants and
Defendant-Intervenors attempt to fill that space primarily by arguing that more detailed impacts
analyses are either impossible or unnecessary at the leasing stage and should be deferred to the
APD stage. But, as described above, that is not necessarily correct. Site-specific analyses need
Management actions under Alternative D for special status wildlife species would have
significant impacts to Greater Sage-Grouse.”).
MEMORANDUM DECISION AND ORDER - 42
not absolutely wait until situations coalesce into a more clear-cut shape and become more
definite. On this record, it was reasonably possible for BLM to synthesize available information
and analyze in better detail the site-specific impacts of the lease sales on greater sage-grouse.
D.
BLM Failed to Take a Hard Look at the Cumulative Impacts on Greater SageGrouse
“NEPA requires an agency to consider the cumulative impacts of a project.” Jones v.
Nat’l Marine Fisheries Serv., 741 F.3d 989, 1000 (9th Cir. 2013). A “cumulatively significant
impact” is an impact on the environment that results from “the incremental impact of the action
when added to other past, present, and reasonably foreseeable future actions regardless of what
agency . . . or person undertakes such other actions.” Kern v. U.S. BLM, 284 F.3d 1062, 1075
(9th Cir. 2002). “Reasonably foreseeable means sufficiently likely to occur such that a person of
ordinary prudence would take it into account in reaching a decision.” 40 C.F.R. § 1508.1(aa).
Cumulative impacts can result from individually minor but collectively significant actions taking
place over a period of time. See Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846,
868 (9th Cir. 2005). “[I]n considering cumulative impacts, an agency must provide ‘some
quantified or detailed information; . . . [g]eneral statements about possible effects and some risk
do not constitute a hard look absent a justification regarding why more definitive information
could not have been provided.’” Id. (quoting Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137
F.3d 1372, 1379-80 (9th Cir. 1998)). “This cumulative analysis ‘must be more than perfunctory;
it must provide a useful analysis of the cumulative impacts of past, present, and future projects.’”
Id. (quoting Kern, 284 F.3d at 1075).
Plaintiffs contend that BLM violated NEPA by failing to analyze the cumulative impacts
of the Phase Two lease sales on greater sage-grouse, arguing that none of the lease sale EAs
addressed cumulative impacts and that tiering to the RMP EISs is again insufficient because
MEMORANDUM DECISION AND ORDER - 43
these documents are “far too coarse and geographically broad.” Pls.’ Mem. ISO MSJ, pp. 32-37.
Federal Defendants do not try to maintain that the EAs sufficiently analyze cumulative effects,
arguing instead that the EAs tiered to the RMP EISs “and each of those EISs applied appropriate
geographic zones based on the habitat zones developed by WAFWA [(the Western Area Fish
and Wildlife Agencies),” which was “eminently reasonable and is entitled to deference.” Fed.
Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, pp. 41-44 (“By tiering to the cumulative impacts
analyses in the EISs prepared as part of the 2015 Sage Grouse plan amendment process, BLM
fulfilled its obligation to analyze the cumulative impacts of its oil and gas leasing decisions.”).
Setting aside the possible interrelationship between an impacts analysis and a cumulative effects
analysis (and how a faulty impacts analysis (see supra) may inform in the same faulty way a
cumulative effects analysis), the Court concludes once more that the tiered-to RMP EISs lack the
necessary quantified or detailed information.
There is no question that the RMP EISs discuss cumulative impacts. Those earlier-intime discussions, however, are no substitute for more precise cumulative impact analyses for
later-in-time lease sales. This is because the RMP EISs consider cumulative effects to greater
sage-grouse at a large geographic scale, as opposed to the specific locales affected by each lease
sale. See id. (Federal Defendants noting how each EIS covers particular WAFA Management
Zones). This may be useful to the kinds of decisions made at the RMP stage (e.g., how many
total acres in each management zone to open up to leasing with various restrictions), but they are
not a one-size-fits-all cumulative impacts discussion capable of taking into account a more
nuanced/focused situation particular to greater sage-grouse to help inform decision-making on
related lease sales. See Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 809 (9th
Cir. 1999) (“The EIS must analyze the combined effects of the actions in sufficient detail to be
useful to the decision-maker in deciding whether, or how, to alter the program to lessen
MEMORANDUM DECISION AND ORDER - 44
cumulative impacts. Detail is therefore required in describing the cumulative effects of a
proposed action with other proposed actions.”) (internal quotations, citations omitted).21
The RMP EISs acknowledge as much. See, e.g., WY 61668, 61716 (Wyoming Nine EIS:
“Site-specific actions are rarely addressed in an RMP or LRMP. As a result, the cumulative
impact analysis is also broad and general in nature. The analysis presents ranges and qualitative
conclusions as opposed to bounded quantified details. These cumulative impacts will then be
considered in subsequent NEPA documents that analyze specific projects or programs. . . . The
magnitude of each threat would vary geographically and may have more or less impact on
Greater Sage-Grouse in some parts of the [management zone], depending on such factors as
climate, land use patterns, and topography.”); WY 58697 (mostly same for Buffalo EIS); WY
65203 (Bighorn Basin EIS: “In some localized areas, small populations may be at continued risk
due to the cumulative effect of reasonably foreseeable future infrastructure and energy
development projects over the next 20 years, when combined with unplanned events such as
wildfires, drought, or West Nile virus outbreaks.”); BLM-MT-2Q17-1163-64 (Miles City
ARMPA: “The [cumulative impacts] analysis remains general because decisions about other
actions in the planning area could be made by many other public and private entities, and the
location, timing, and magnitude of such actions cannot be predicted.”). The RMP EISs’
straightforward announcement of their substantive limitations moving forward naturally
undercuts any argument that they are acceptably quantified and detailed to amount to a NEPA-
21
Responding to certain of Federal Defendants’ positions, the Court does not take issue
with WAFA’s choice of geographic scope pertaining to the cumulative impacts analyses within
the RMP EISs. See Fed. Defs.’ Mem. ISO MSJ and Opp. to Pls.’ MSJ, p. 45. But this extends
only insofar as the RMPs go and not necessarily to subsequent agency actions involving a much
smaller scale – in other words, any deference in this respect is not unlimited. Moreover, Federal
Defendants suggest that analyzing “too much information, rather than too little,” actually
complies with NEPA. See id. at p. 46. In theory, yes, but not when too much information results
in a lack of quantified or detailed information.
MEMORANDUM DECISION AND ORDER - 45
compliant cumulative impacts analysis for the Phase Two lease sales. See, e.g., Ruhs, 701 F.
Appx. at 653.
This is especially the case when the RMP EISs did not discuss – and could not have
discussed – the “incremental impact that can be expected” from the Phase Two lease sales
themselves, including the development of multiple parcels in the same lease sale. See KlamathSiskiyou Wildlands Ctr. v. BLM (“KSWC”), 387 F.3d 989, 997-98 (9th Cir. 2004). In KSWC, the
Ninth Circuit provided guidance on the appropriate level of analysis that an EA should reflect –
“[a] proper consideration of the cumulative impacts of a project requires some quantified or
detailed information; . . . [g]eneral statements about possible effects and some risk do not
constitute a hard look absent a justification regarding why more definitive information could not
be provided.” Id. at 993. There, BLM had divided an original timber-sale project into four
component timber sales, preparing EAs for two of them. See id. at 991-92. Upon challenge, the
Ninth Circuit held that the two EAs were “legally insufficient” because they “do not sufficiently
identify or discuss the incremental impact that can be expected from each successive timber sale,
or how those individual impacts might combine or synergistically interact with each other to
affect the . . . environment.” Id. at 997 (emphasis added); see also id. at 997-98 (finding EAs
could not be saved by tiering to EIS that likewise failed to analyze specific impacts of timber
sales themselves).
Analogously, the RMP EISs here do not consider how the collective effects of the Phase
Two lease sales (and the parcels contained therein) might combine alongside other actions and
nearby conditions to affect greater sage-grouse. See, e.g., id. at 994 (“Sometimes the total
impact from a set of actions may be greater than the sum of the parts . . . . [T]he addition of a
small amount here, a small amount there, and still more at another point could add up to
something with a much greater impact . . . .”). Where likely consequences involve more habitat
MEMORANDUM DECISION AND ORDER - 46
fragmentation for greater sage-grouse, the failure to fully discuss these cumulative impacts is not
insignificant.
“In a cumulative impacts analysis, an agency must take a ‘hard look’ at all actions.” TeMoak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 603 (9th Cir. 2010).
An agency cannot satisfy this requirement under NEPA with “[g]eneral statements about
possible effects and some risk,” it much take the next step and show how actions (in this case,
the Phase Two lease sales) cumulatively effect greater sage-grouse. See Ocean Advocates, 402
F.3d at 868 (internal quotation, citation omitted). Here, neither the EAs nor the RMP EISs
contained a quantified assessment of the Phase Two lease sales’ combined impacts on greater
sage-grouse.
E.
The Phase Two Lease Sales Are Remanded Without Vacatur
Based upon their contentions regarding BLM’s NEPA violations, Plaintiffs argue that the
Court should set aside and vacate the Phase Two lease sales. See Pls.’ Mem. ISO MSJ, pp. 3739. Presumptively, vacatur is the remedy when a court finds an agency’s decision unlawful
under the APA. See 5 U.S.C. § 706(2)(A) (“The reviewing court shall hold unlawful and set
aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law[.]” Se. Alaska Conserv. Council v. U.S.
Army Corps of Eng’rs, 486 F.3d 638, 654 (9th Cir. 2007) (“Under the APA, the normal remedy
for an unlawful agency action is to ‘set aside’ the action. In other words, a court should vacate
the agency’s action and remand to the agency to act in compliance with its statutory
obligations.”).
However, vacatur is not required in every case. See Cal. Cmtys. Against Toxics v. EPA,
688 F.3d 989, 992 (9th Cir. 2012) (“A flawed rule need not be vacated.”). When equity demands,
[a flawed action] can be left in place while the agency follows the necessary procedures to
MEMORANDUM DECISION AND ORDER - 47
correct its action.” Id. (quoting Idaho Farm Bureau v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.
1995) (internal quotation marks omitted)). Nonetheless, vacatur is only rarely not imposed. See
Humane Soc’y v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010) (“In rare circumstances, when
we deem it advisable that the agency action remain in force until the action can be reconsidered
or replaced, we will remand without vacating the agency’s action.”).
Ultimately, “[t]he decision whether to vacate depends on ‘the seriousness of the order’s
deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be changed.’” Allied-Signal v. U.S. Nuclear
Regulatory Comm’n, 988 F.2d 146, 150-51 (D.C. Cir. 1993) (quoting Int’l Union, United Mine
Workers of Am. v. Fed. Mine Safety & Health Admin., 920 F.2d 960, 967 (D.C. Cir. 1990)).
When an agency likely can come to the same conclusion on remand, the “seriousness of the
agency’s errors” weighs in favor of remand without vacatur. See Pollinator Stewardship Council
v. EPA, 806 F.3d 520, 532 (9th Cir. 2015); see also Standing Rock Sioux Tribe v. U.S. Army
Corps of Eng’rs, 282 F. Supp. 3d 91, 97 (D.D.C. 2017) (“Put otherwise, this Court must
determine whether there is at least a serious possibility that the agency will be able to
substantiate its decision on remand, and whether vacatur will lead to impermissibly disruptive
consequences in the interim.”) (internal quotation omitted).
In the assessment of this Court, the failings of the assembly of the BLM’s EAs relate, for
the most part, to the absence and/or incompleteness of analyses (relating to a single species and
not as to any other resource). See Wildearth Guardians, 457 F. Supp. 3d at 897 (“In other words,
the Court does not fault BLM for providing a faulty analysis of cumulative impacts or impacts to
groundwater, it largely faults BLM for failing to provide any analysis.”) (emphasis in original).
And, according to Plaintiffs, much of the information that may more fully inform these analyses
already exists in a way that may ultimately corroborate BLM’s position on the issues in question.
MEMORANDUM DECISION AND ORDER - 48
See supra; see also 2/27/20 MDO, p. 59 n.21 (this Court acknowledging during Phase One of
case that “a failure to fully discuss the environmental effects of the lease sales [may be] easily
remedied by incorporating an analysis that was previously omitted) (citing Wildearth Guardians
v. Zinke, 368 F. Supp. 3d 41, 83-85 (D.D.C. 2019) (“[N]othing in the record indicates that on
remand the agency will necessarily fail to justify its decisions to issue EAs and FONSIs. Thus,
though the disruptive consequences of vacatur might not be great, the probability that [BLM]
will be able to justify retaining [its prior leasing decisions] is sufficiently high that vacatur . . . is
not appropriate. Instead, the Court remands the EAs and FONSIs to BLM so that the agency
may address the deficiencies identified by the Court above.”) (internal quotation marks and
citations omitted)).
With this in mind, despite their NEPA-related shortcomings, the Court will not vacate the
Phase Two lease sales. Instead, the Court will enjoin BLM from (1) issuing any new APDs for
the Phase Two leases, and (2) any further surface disturbing activities thereon, remanding the
EAs to BLM to substantiate the conclusions drawn in its EAs or revise them as necessary.
Unless and until the concerns referenced in this Memorandum Decision and Order are
sufficiently addressed, BLM may not authorize new drilling/surface disturbing activities on the
leased parcels. See Wildearth, 368 F. Supp. 3d at 85 (“To guard against the possibility that BLM
did not choose correctly the first time around, the Court enjoins BLM from issuing any APDs for
the Wyoming Leases while the agency works to substantiate its EAs and FONSIs.”).
“Compliance with NEPA cannot be reduced to a bureaucratic formality, and the Court expects
[BLM] not to treat remand as an exercise in filling out the proper paperwork post hoc.” Standing
Rock, 282 F. Supp. 3d at 109.22
22
As before, the Court acknowledges the possible need to continue limited operations
under appropriate circumstances to preserve the status quo where development is already
MEMORANDUM DECISION AND ORDER - 49
IV. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.
Plaintiffs’ Motion for Partial Summary Judgment (Phase Two) (Dkt. 247) is
GRANTED, in part, and DENIED, in part, as follows:
a.
Plaintiffs have standing to challenge the Wyoming lease sales;
alternatively, neither Plaintiff has waived their challenge to any of the Phase Two lease sales. To
the extent appropriate, Plaintiffs’ Motion for Partial Summary Judgment (Phase Two) (Dkt. 247)
is granted in this respect.
b.
BLM (1) failed to consider the reasonable alternative of deferring priority
sage-grouse habitat; (2) failed to take a hard look at the direct and indirect impacts to greater
sage-grouse; and (3) failed to take a hard look at the cumulative impacts on greater sage-grouse.
Plaintiffs’ Motion for Partial Summary Judgment (Phase Two) (Dkt. 247) is granted in this
respect.
c.
The Phase Two lease sales are remanded without vacatur. Plaintiffs’
Motion for Partial Summary Judgment (Phase Two) (Dkt. 247) is denied in this respect.
2.
Federal Defendants’ Motion for Partial Summary Judgment (Phase Two) (Dkt.
278), Defendant-Intervenor State of Wyoming’s Motion for Partial Summary Judgment (Phase
Two) (Dkt. 283), Defendant-Intervenor Western Energy Alliance’s Phase Two Cross-Motion for
Summary Judgment (Dkt. 294), Defendant-Intervenors Peak Powder River Acquisitions, LLC’s,
underway. See 5/12/20 MDO, p. 10, n.6 (Dkt. 226); see also Fed. Defs.’ Mem. ISO MSJ and
Opp. to Pls.’ MSJ, p. 50. Any party seeking to modify the suspended status of any applicable
Phase Two lease must include “information about the nature and need for such work to allow
other parties to respond to the motion and for the Court to make an informed decision upon the
request.” 5/12/20 MDO, pp. 10-11, n.6. “The nature of such details is intended not only to assist
the Court in assessing the request, but also to allow for potential stipulated agreements upon such
relief,” as has happened previously. 8/17/20 MDO, p. 19, n. 14.
MEMORANDUM DECISION AND ORDER - 50
Titan Exploration, LLC’s, and Rebellion Energy II, LLC’s Motion for Partial Summary
Judgment (Phase Two) (Dkt. 318) (collectively “Defendant/Defendant-Intervenor Motions”) are
GRANTED in part, and DENIED, in part, as follows:
a.
Plaintiffs have standing to challenge the Wyoming lease sales;
alternatively, neither Plaintiff has waived their challenge to any of the Phase Two lease sales. To
the extent appropriate, the Defendant/Defendant-Intervenor Motions (Dkts. 278, 283, 294, 318)
are denied in this respect.
b.
BLM (1) failed to consider the reasonable alternative of deferring priority
sage-grouse habitat; (2) failed to take a hard look at the direct and indirect impacts to greater
sage-grouse; and (3) failed to take a hard look at the cumulative impacts on greater sage-grouse.
The Defendant/Defendant-Intervenor Motions (Dkts. 278, 283, 294, 318) are denied in this
respect.
c.
The Phase Two lease sales are remanded without vacatur. The
Defendant/Defendant-Intervenor Motions (Dkts. 278, 283, 294, 318) are granted in this respect.
3.
This action is remanded. Consistent with NEPA and the APA, BLM must address
the deficiencies identified by the Court; until the concerns referenced in this Memorandum
Decision and Order are sufficiently addressed, BLM may not authorize new drilling/surface
disturbing activities on the leased parcels.
4.
Plaintiffs’ Motion to Strike WEA Exhibits (Dkt. 314) is DENIED as moot.
DATED: June 9, 2021
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 51
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?