Dine Citizens Against Ruining our Environment et al v. Jewell et al

Filing 129

MEMORANDUM OPINION AND ORDER denying 112 MOTION for Summary Judgment Plaintiffs' Opening Merits Brief by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DINÉ CITIZENS AGAINST RUINING OUR
ENVIRONMENT; SAN JUAN CITIZENS
ALLIANCE; WILDEARTH GUARDIANS;
and NATURAL RESOURCES DEFENSE
COUNCIL,
Plaintiffs,
vs.

No. CIV 15-0209 JB/SCY

SALLY JEWELL, in her official capacity as
Secretary of the United States Department of the
Interior; UNITED STATES BUREAU OF
LAND MANAGEMENT, an agency within the
United States Department of the Interior; and
NEIL KORNZE, in his official capacity as
Director of the United States Bureau of Land
Management,
Defendants,
and
WPX ENERGY PRODUCTION, LLC;
ENCANA OIL & GAS (USA) INC.; BP
AMERICA COMPANY; CONOCOPHILLIPS
COMPANY; BURLINGTON RESOURCES
OIL & GAS COMPANY LP; AMERICAN
PETROLEUM INSTITUTE; and ANSCHUTZ
EXPLORATION CORPORATION,
Intervenor-Defendants.

MEMORANDUM OPINION AND AMENDED ORDER1
THIS MATTER comes before the Court on the Plaintiffs’ Opening Merits Brief, filed
April 28, 2017 (Doc. 112)(“Diné Brief”). The primary issues are: (i) whether the Plaintiffs have
standing to pursue their claims under the National Environmental Policy Act, 42 U.S.C. §§ 4321
to 4370m-12 (“NEPA”) and the National Historic Preservation Act, 16 U.S.C. §§ 470 to 470x-6
(“NHPA”); (ii) whether the Plaintiffs are challenging final agency action within the meaning of
the Administrative Procedure Act, 5 U.S.C. § 704 (“APA”); (iii) whether any of the Plaintiffs’
challenges to various Applications for Permit to Drill (“APDs”) are moot; (iv) whether
Defendant United States Bureau of Land Management (“BLM”) violated NEPA by failing to
adequately consider the environmental impacts of hydraulic fracturing and horizontal drilling in
developing the Mancos Shale in the San Juan Basin; (v) whether the BLM adequately involved
the public in its NEPA process; (vi) whether the BLM violated the NHPA for failing to consider
the indirect effects that well pads would have on Chaco Culture National Historic Park, Chacoan
Outliers, the Chaco Culture Archaeological Protection Sites, and the Great North Road
(collectively “Chaco Park and its satellites”); and (vii) if there is a NEPA or NHPA violation,
whether the proper remedy is remand without vacatur, remand with vacatur, or a permanent
injunction. The Court concludes that: (i) the Plaintiffs have standing to pursue their NEPA and
NHPA claims; (ii) the Plaintiffs may challenge most, but not all, of the APDs under the APA;
(iii) the Plaintiffs’ APD challenges are not moot, except as to permanently abandoned wells; (iv)
1

The Court previously issued an Order that granted in part and denied in part the requests
in the Plaintiffs’ Opening Merits Brief, filed April 28, 2017 (Doc. 112). See Order at 4, filed
March 31, 2018 (Doc. 128)(“Order”). In that Order, the Court stated that it would issue a
Memorandum Opinion “at a later date more fully detailing its rationale for this decision.” Order
at 2 n.1. This Memorandum Opinion and Amended Order is the promised opinion, and details
the Court’s rationale for the previous Order, and also contains an amended decision and order.
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the BLM complied with NEPA’s requirements; (v) the BLM adequately involved the public in
its NEPA process, as it gave notice of finalized Environmental Assessments’ (“EAs”)
availability through its online NEPA logs, and sent notices of and hosted public meetings at each
proposed well’s site; (vi) the BLM did not violate the NHPA, because it considered the effects
on historical sites within the wells’ areas of potential effects; and (vii) if the BLM had violated
NEPA or the NHPA, vacatur with remand would be the proper remedy for the NEPA violation,
but remand without vacatur would be the proper remedy for the NHPA violation. Accordingly,
the Court denies the requests in the Diné Brief.
FACTUAL BACKGROUND
The Court divides its factual background into five sections.

First, the Court will

introduce the parties. Second, it will discuss oil-and-gas development in the San Juan Basin -- a
petroleum-rich geologic structural basin in the Four Corners region of the States of New Mexico
and Colorado, which, although sparsely populated, is home to many Navajo Native Americans,
also known as the Diné. See Diné Citizens Against Ruining Our Environment v. Jewell, No.
CIV 15-0209, 2015 WL 4997207, at *2 (D.N.M. 2015)(Browning, J.)(“Dine”).

Third, it will

explain the BLM’s oil-and-gas planning and management framework. Fourth, it will outline the
timeline of events giving rise to this case. Finally, it will discuss the BLM’s relationship with
the NHPA.
1.

The Parties.

Plaintiff Diné Citizens Against Ruining Our Environment (“Diné CARE”) is an
organization of Navajo community activists in the Four Corners region. See Dine, 2015 WL
4997207, at *2. Diné CARE’s stated goal is to protect all life in its ancestral homeland by

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empowering local and traditional people to organize, speak out, and ensure conservation and
stewardship of the environment through civic involvement. See Dine, 2015 WL 4997207, at *2.
Plaintiff San Juan Citizens Alliance (“San Juan Alliance”) is an organization dedicated to social,
economic, and environmental justice in the San Juan Basin. See Dine, 2015 WL 4997207, at *2.
Plaintiff WildEarth Guardians is a non-profit membership organization with over 65,000
members and activists and is based in Santa Fe, New Mexico, with offices throughout the
western United States of America. See Dine, 2015 WL 4997207, at *3. Plaintiff Natural
Resources Defense Council is a nonprofit environmental membership organization with more
than 299,000 members throughout the United States, approximately 3,360 of whom reside in
New Mexico. See Dine, 2015 WL 4997207, at *3.
a.

The Plaintiff Organizations’ Members.

Mike Eisenfeld is a member of San Juan Alliance and WildEarth Guardians.

See

Declaration of Mike Eisenfeld ¶ 1, at 1 (executed April 25, 2017), filed April 28, 2017
(Doc. 112-1)(“Eisenfeld Decl.”). He has visited Chaco Park -- a historic site in the San Juan
Basin -- at least annually since 1997. See Eisenfeld Decl. ¶ 5, at 2. He last visited there in July,
2016. See Eisenfeld Decl. ¶ 5, at 2. He also regularly visits “the greater Chaco region, including
areas in and around Counselor, Lybrook, and Nageezi,” New Mexico.2 Eisenfeld Decl. ¶ 5, at 2.
He last visited the “Nageezi area” on April 20, 2017, and intends to return in May and June of

2

Counselor is a town located along United States Route 550 (“Highway 550”),
approximately twenty-five miles from Chaco Park.
See Google Maps,
https://www.google.com/maps/place/Counselor,+NM+87018/@36.1682738,- 107.9418258,10z/
data=!4m5!3m4!1s0x873cdade76ce96bf:0xfa26b13b4b45c9e3!8m2!3d36.2091806!4d-107. 457
8264. Nageezi is also a town located along Highway 550, approximately fifteen miles from
Chaco Park.
See Google Maps, https://www.google.com/maps/@36.1761681, 107.8701589,11z. Lybrook lies between Counselor and Nageezi.
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2017. Eisenfeld Decl. ¶ 5, at 2. He contends that the BLM has approved various APDs after
conducting EAs that were not available for the public, including himself, to review.

See

Eisenfeld Decl. ¶ 9, at 4-5. Specifically, Eisenfeld checked the BLM’s website and visited its
public reading room throughout 2014, and on October 2, 2014, “no NEPA documentation was
available to the public.” Eisenfeld Decl. ¶ 11, at 6.
According to Eisenfeld, the BLM’s approval of these APDs “threatens to irreparably
harm [his] personal and professional interest in an intact Chacoan landscape . . . by impacting
important environmental (air, water, treasured landscapes), historical, and cultural resources.”
Eisenfeld Decl. ¶ 9, at 5 (alteration added). Eisenfeld states that he has visited hundreds of well
sites in the “greater Chaco area” and has “frequented lands where many other Mancos Shale[3]
wells are in view.” Eisenfeld Decl. ¶ 12, at 6. Eisenfeld alleges that the BLM has allowed “APD
proponents to flare natural gas in the greater Chaco area when drilling for oil.” Eisenfeld Decl.
¶ 13, at 6.

According to Eisenfeld, this flaring harms the air quality and his health, and

“compromises the night sky” in the Chaco Park area. Eisenfeld Decl. ¶ 13, at 6-7. Eisenfeld
states that the APD approvals have also “compromised noted archeological sites.” Eisenfeld
Decl. ¶ 13, at 7.

Eisenfeld states that he is “harmed by the lack of government agency

compliance in evaluating the direct, indirect, cumulative and connected impacts of operations
approved by BLM.” Eisenfeld Decl. ¶ 16, at 8.

3

The Mancos Shale Formation is a geologic layer within the San Juan Basin containing
oil and gas, is approximately 2300-2500 feet thick, and is composed of sandstone and limestone.
See Farmington Proposed RMP/Final EIS Chapter 3 Affected Environment at 3-6
(A.R.0000908).

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In 2010-2012, Eisenfeld visited some Mancos Shale wells amongst the communities of
Counselor, Lybrook, and Nageezi. See Supplemental Declaration of Mike Eisenfeld ¶ 3, at 2
(executed July 26, 2017), filed July 28, 2017 (Doc. 117-3)(“Eisenfeld Supp. Decl.”). He visited
“over 150 WPX [and] Encana[4] . . . wells being drilled and developed in the Mancos Shale.”
Eisenfeld Supp. Decl. ¶ 3, at 2 (alteration added). Specifically, he has visited well sites called
“Encana Lybrook, Gallo Canyon Unit and Escrito wells, and WPX Chaco unit wells.” Eisenfeld
Supp. Decl. ¶ 3, at 2. At these well sites, Eisenfeld has seen “drilling, flaring, hydraulic
fracturing, nitrogen treatment, fracking trucks, chemical storage and an endless stream of
activity.” Eisenfeld Supp. Decl. ¶ 4, at 2. Eisenfeld states that “the flaring of natural gas from
the Mancos Shale oil wells have been visually apparent . . . [,] representing waste, pollution and
lost revenue/royalties.” Eisenfeld Supp. Decl. ¶ 6, at 3. Eisenfeld states that the resulting fumes,
reckless truck travel, and even exploding wells have made him feel unsafe when traveling in the
Mancos Shale area. See Eisenfeld Supp. Decl. ¶ 7, at 4. Eisenfeld notes that an explosion
occurred on a well pad in Nageezi in 2016, and he states that he fears that additional explosions
may follow “as long as Mancos Shale development is allowed to proceed unimpeded and
unanalyzed.” Eisenfeld Supp. Decl. ¶ 8, at 4. Eisenfeld also submits to the Court photographs
that “show clustered WPX wells, a producing Mancos Shale oil well, a well site with three active
flares, and a five-acre well pad where Mancos Shale oil is being drilled for.” Eisenfeld Supp.
Decl. ¶ 8, at 4.

4

Intervener-Defendants WPX Energy Production, LLC and Encana Oil & Gas (USA) Inc.
are oil companies that own leases or drilling permits over the Mancos Shale. See Dine, 2015
WL 4997207, at *3.
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Jeremy Nichols is a member of WildEarth Guardians. See Declaration of Jeremy Nichols
¶ 2, at 2 (executed April 27, 2017), filed April 28, 2017 (Doc. 112-2)(“Nichols Decl.”). Nichols
states that he visited “the Chaco outlier ruin of Pueblo Pintado” in March, 2017. Nichols Decl.
¶ 5, at 3. He visited Chaco Park in March, 2008, March, 2012, April, 2013, and May, 2015. See
Nichols Decl. ¶ 5, at 4-5. Nichols states that he intends to continue visiting “the Greater Chaco
region, including [Chaco Park] and its outliers . . . at least once a year for the foreseeable future.”
Nichols Decl. ¶ 6, at 6. He states that he intends to visit “this area” again in June, 2017, when
he has a trip planned. Nichols Decl. ¶ 6, at 6. Nichols states that he does not recall any oil-andgas development in the area in 2008, but by 2014, “there were rigs seemingly all over the place,
around Nageezi and the road to [Chaco Park].” Nichols Decl. ¶ 7, at 6-7. According to Nichols,
during his last visit, “there were extensive oil and gas well facilities and infrastructure in the
area, particularly around Nageezi and Lybrook.” Nichols Decl. ¶ 7, at 7. Nichols states that this
new oil-and-gas development “has detracted significantly from [his] enjoyment of the Greater
Chaco area,” and has “significantly eroded the natural and remote nature of the region.” Nichols
Decl. ¶ 8, at 7 (alteration added). According to Nichols, the oil-and-gas development has also
created “smells, dust, and more industrialization,” which are “aesthetically displeasing.” Nichols
Decl. ¶ 9, at 7. Nichols states that, “[i]f the BLM were prohibited from approving new drilling
permits in this area until it developed a new plan . . . [,] it would diminish the harms to [his]
recreational enjoyment of the area and likely ensure that [his] future visits with friends and
family will be more enjoyable than they currently are.” Nichols Decl. ¶ 12, at 9 (alteration
added).5

5

Nichols also submits a map to the Court showing the proximity of wells approved since
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Deborah Green represents that she is a member of the Natural Resources Defense
Council. See Declaration of Deborah Green ¶ 3, at 2 (executed April 14, 2017), filed April 28,
2017 (Doc. 112-3)(“Green Decl.”). Green states that she visits Chaco Park “at least once a
year.” Green Decl. ¶ 4, at 2. Green intends to return to Chaco Park “this fall” (referring to fall
2017) and “in the future.” Green Decl. ¶ 6, at 2. Green states that oil-and-gas development “in
the Chaco Canyon[6] area/region and [Chaco Park]” would harm Green’s visitor experience,
because of potential air, noise, and light pollution, large truck traffic, and the possibility of “soil
and groundwater contamination due to drilling practices.” Green Decl. ¶ 7, at 2-3. Green states
that she also has “concerns” regarding the use of hydraulic fracturing (“fracking”)7 “in the Chaco
Canyon area/region and Chaco [Park],” because fracking may contaminate the area’s
groundwater. Green Decl. ¶ 8, at 3. Green explains that, if the Court vacates the BLM’s
approvals of APDs, then she “will be able to continue using the Chaco Canyon area/region and
[Chaco Park] for hiking, camping, and spiritual contemplation.” Green Decl. ¶ 9, at 3. Green
states that she has experienced several environmental problems while driving along Highway
550 to Chaco Canyon, including air pollution from gas flares, exhaust from oil- and-gas trucks,
noise pollution from heavy truck traffic, and light pollution from nighttime drilling.

See

January 1, 2009, to Chaco Park, as well as various photographs that he took of oil-and-gas
development in the Chaco area. See Supplemental Declaration of Jeremy Nichols ¶ 7-10, at 2-11
(executed July 28, 2017), filed July 28, 2017 (Doc. 117-1)(“Nichols Supp. Decl.”). He adds that
he visited the area again in June, 2017. See Nichols Supp. Decl. ¶ 8, at 5.
6

Chaco Canyon is a canyon inside Chaco Park. See “Chaco Culture National Historical
Park,” Wikipedia, https://en.wikipedia.org/wiki/Chaco_Culture_National_Historical_Park (last
viewed April 6, 2018).
7

Fracking is discussed in more detail on page 12.

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Supplemental Declaration of Deborah Green ¶ 8, at 3 (executed July 27, 2017), filed July 28,
2017 (Doc. 117-4)(“Green Supp. Decl.”).
Hope Miura represents that she lives in the Cochiti Pueblo,8 which is “about a three hour
drive . . . to the Chaco Canyon area/region.” Declaration of Hope Miura ¶ 1, at 2 (executed April
17, 2017), filed April 28, 2017 (Doc. 112-4)(“Miura Decl.”). Miura states that she is a member
of the Natural Resources Defense Council. See Miura Decl. ¶ 2, at 2. Miura states that she has
visited Chaco Park, and she plans to return there “next year, and in the future.” Miura Decl. ¶ 5,
at 2. According to Miura, oil-and-gas development “in the Chaco Canyon area/region and
[Chaco Park]” would “ruin the views and tranquility of the Chaco Canyon area.” Miura Decl. ¶
6, at 2. Miura states that she is concerned that fracking in the area may cause earthquakes, and
“damage the rock formations and sacred sites where Native Americans have their ancestral
ceremonies.” Miura Decl. ¶ 7, at 2-3. Miura also states that she is “concerned about the effects
of oil and gas development on air quality in the area, including toxic fumes.” Miura Decl. ¶ 7, at
3. Miura contends that if the Court vacates the BLM’s approvals of APDs, then she “would be
able to continue to visit this area and feel much better about the air quality and the preservation
of the archeology.” Miura Decl. ¶ 8, at 3.
Gina Trujillo represents that she is the Director of Membership for the Natural Resources
Defense Council. See Declaration of Gina Trujillo ¶ 1, at 1 (dated April 30, 2017), filed April 28,
2017 (Doc. 112-5)(“Trujillo Decl.”).

Trujillo asserts that the Natural Resources Defense

Council’s mission is “to safeguard the Earth; its people, its plants and animals, and the natural
8

The Cochiti Pueblo is located approximately twenty-two miles southwest of Santa Fe,
New Mexico.
See “Cochiti, New Mexico,” Wikipedia, https://en.wikipedia.org/wiki/
Cochiti,_New_Mexico (last viewed April 14, 2018).

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systems on which all life depends.” Trujillo Decl. ¶ 6, at 2. Trujillo states that protecting Chaco
Park and the Chaco Canyon area from damaging oil-and-gas operations “is paradigmatic” of the
organization’s efforts “to defend endangered wild places and natural habitats.” Trujillo Decl.
¶ 7, at 2.
Kendra Pinto represents that she is a member of the Navajo Nation and of Diné CARE.
See Declaration of Kendra Pinto ¶ 1, at 1 (executed July 26, 2017), filed July 28, 2017
(Doc. 117-2)(“Pinto Decl.”). Pinto states that she lives in Twin Pines, New Mexico, which is
located on Highway 550 at the San Juan County line. See Pinto Decl. ¶ 1, at 1. Pinto states that,
since the “start of oil exploration in the Mancos Shale Formation, [she has] seen an increase in
truck traffic, public safety risks, violent crimes, and drug use.” Pinto Decl. ¶ 5, at 2 (alteration
added). She adds that she has “noticed headaches, blurry vision, occasional stomach issues,
fatigue, and allergies.” Pinto Decl. ¶ 5, at 2. She states that she often sees “fracking truck
traffic” on the highway, which “contributes to the fear of safety.” Pinto Decl. ¶ 8, at 2. Pinto
states that she has had “numerous encounters with this truck traffic” and was “almost rear ended
by a truck carrying liquid nitrogen.” Pinto Decl. ¶ 9, at 3. According to Pinto, “there is always a
danger” where she lives. Pinto Decl. ¶ 9, at 3. Pinto states that she has been to areas that are
“very potent in natural gas odors,” and has seen “the giant pillars of fire” from flaring, which are
“scary, loud, and excessive.” Pinto Decl. ¶ 10, at 3. Pinto states that “there is no escaping the
gases, traffic, noise pollution, and sound pollution.” Pinto Decl. ¶ 10, at 3. Pinto states that she
regularly visits Chaco Park and enjoys observing the dark sky from there, but “the lights staged
at well sites can be as bright as stadium lights.” Pinto Decl. ¶ 11, at 3. Pinto states that she has

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also dealt with these bright lights being pointed at the highway, prohibiting her from seeing the
road. See Pinto Decl. ¶ 11, at 3.
b.

The Defendants.

Defendant Ryan Zinke is the Secretary of the United States Department of the Interior.
See Diné Brief at 12 n.1. Defendant Michael Nedd is the Acting Director of the BLM. See Diné
Brief at 12 n.1.9 The BLM is an agency within the United States Department of the Interior that
is responsible for managing public lands and resources in New Mexico, including federal
onshore oil-and-gas resources. See 18 C.F.R. § 270.401(b)(15).
Intervenor-Defendant American Petroleum Institute (“the API”) is the primary national
trade association of the oil-and-gas industry, representing more than 625 companies involved in
all aspects of that industry, including some that drill in the Mancos Shale. See Dine, 2015 WL
4997207, at *3. Intervener-Defendants WPX Energy Production, LLC, Encana Oil & Gas
(USA) Inc., BP America Production Company, ConocoPhillips Company, Burlington Resources
Oil & Gas Company LP, and Anschutz Exploration Corporation (collectively, “the Operators”)
are all oil companies, and each of them owns leases or drilling permits over the Mancos Shale.
See Dine, 2015 WL 4997207, at *3.

9

When this lawsuit was filed, Sally Jewell was the Secretary of the United States
Department of the Interior, and Neil Kornze was the Director of the BLM. See Dine, 2015 WL
4997207, at *3. Because they are no longer in office, “[t]he officer’s successor is automatically
substituted as a party. Later proceedings should be in the substituted party’s name, but any
misnomer not affecting the parties’ substantial rights must be disregarded.” Fed. R. Civ. P.
25(d).
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2.

Oil-and-Gas Development in the San Juan Basin.

The San Juan Basin in northwestern New Mexico is one of the largest oil-and-gas fields
in the United States and has been producing for over fifty years.

See Farmington Proposed

Resource Management Plan and Final Environmental Impact Statement at 1 (dated September,
2003)(A.R.0001945)(“PRMP”).

“Approximately 23,000 wells are currently producing.”

Finding of No Significant Impact WPX Energy Production, LLC’s West Lybrook UT Nos.
701H, 702H, 703H, 704H, 743H and 744H at 2 (undated)(A.R.0232032)(“FONSI”).
Since fracking was introduced in 1949, “nearly every well in the San Juan Basin has
been fracture stimulated.” FONSI at 2 (A.R.0232032). Fracking is the process of “injecting
fracturing fluids into the target formation at a force exceeding the parting pressure of the rock,
thus inducing fractures through which oil or natural gas can flow to the wellbore.”10 Hydraulic
Fracturing White Paper at 6 (dated October 1, 2014)(A.R.0149866)(“White Paper”). Fracking
and horizontal drilling are commonly used to access the Mancos Shale. See Unconventional Gas
Reservoirs, Hydraulic Fracturing and the Mancos Shale at 7-8 (undated)(A.R.015555152)(“Hydraulic Fracturing”). Horizontal drilling refers to a technique in which the wellbore is
drilled down to the target formation, and then turns horizontally so that the well encounters as
much of the reservoir as possible. See Hydraulic Fracturing at 6 (A.R.0155550).
“Vertical drilling places a well pad directly above the bottom hole, while directional and
horizontal drilling allows for flexibility in the placement of the well pad and associated surface
10

The parting pressure of the rock refers to “a pressure sufficient to induce fractures
through which oil or gas can flow.” White Paper at 8 (A.R.0149868). The wellbore refers to the
hole produced when drilling an oil or gas well.
See “Wellbore,” Wiktionary,
https://en.wiktionary.org/wiki/wellbore (last viewed April 16, 2018).

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facilities.”

Environmental Assessment DOI-BLM-NM F010-2016-0204/IT4RM-FO10-2016-

0081 at 16 (dated April, 2016)(A.R.0236483)(“2016 EA”). “Directional or horizontal drilling
often allows for ‘twinning,’ or drilling two or more wells from one shared well pad.” 2016 EA at
16 (A.R.0236483). “Generally, the use of this technology is applied when it is necessary to
avoid or minimize impacts to surface resources.” 2016 EA at 16 (A.R.0236483). Indeed, one
objective of horizontal drilling is to avoid surface occupancy “due to topographic or
environmental concerns.” Oil and Gas Resource Development for San Juan Basin, New Mexico
a 20-year Reasonable Foreseeable Development Scenario Supporting the Resource Management
Plan for the Farmington Field Office, Bureau of Land Management at 8.1 (dated July 2,
2001)(A.R.0000111)(“RFDS”).

San Juan Alliance once stated that “[a]lternative drilling

methods such as horizontal drilling would, if used in the San Juan basin, reduce adverse impacts
such as noise, air pollution, and scarred landscapes from wells and roads. Why can’t several
wells be drilled from one location?

The BLM must consider/require feasible technical

alternatives such as horizontal drilling.”

Appendix P-Public Comments and Responses

Farmington Proposed RMP/Final EIS at P-123 (dated 2002)(A.R.0001847)(“San Juan
Comment”).
The area in which the BLM has approved the Mancos Shale APDs already contains
hundreds of existing wells. See Reasonable Foreseeable Development for Northern New Mexico
Final Report at 19 (dated October, 2014)(A.R.0173844)(“2014 RFDS”). Further, many proposed
Mancos Shale wells use existing oil-and-gas infrastructure. See Environmental Assessment
DOI-BLM-NM-F010-2015-0036 at 1 (dated November, 2014)(A.R.0140148)(“2014 EA”).

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3.

The BLM’s Oil-and-Gas Planning and Management Framework.

The BLM manages onshore oil-and-gas leasing and development via a three-phase
process. The first phase involves preparing a Resource Management Plan (“RMP”) and an
Environmental Impact Statement (“EIS”). 43 C.F.R. § 1601.0-6. “Resource management plans
are designed to guide and control future management actions and the development of subsequent,
more detailed and limited scope plans for resources and uses.”

43 C.F.R. § 1601.0-2.

“[W]herever possible, the proposed plan and related environmental impact statement shall be
published in a single document.” 43 C.F.R. § 1601.0-6.
The EIS is the comprehensive, gold-standard document: it is subject to noticeand-comment provisions; “[i]t shall provide full and fair discussion of significant
environmental impacts and shall inform decisionmakers and the public of
reasonable alternatives which would avoid or minimize adverse impacts or
enhance the quality of the human environment”; and it “is more than a disclosure
document,” but rather, “[i]t shall be used by Federal officials in conjunction with
other relevant material to plan actions and make decisions.”
Dine, 2015 WL 4997207, at *40 (quoting 40 C.F.R. § 1502.1)(alterations in Dine). The BLM
must prepare a supplement to its EIS if “the agency makes substantial changes in the proposed
action that are relevant to environmental concerns, or there are significant new circumstances or
information relevant to environmental concerns and bearing on the proposed action or its
impacts.” 40 C.F.R. § 1502.9(c)(1)(i)-(ii).
In the second phase, the BLM sells and executes oil-and-gas leases. See 43 C.F.R.
§ 3120.1-1. The BLM “may require stipulations as conditions of lease issuance.” 43 C.F.R.
§ 3101.1-3. Third, and at issue in this case, the lessee submits an APD to the BLM, and “no
drilling operations, nor surface disturbance preliminary thereto, may be commenced prior to the
authorized officer’s approval of the permit.” 43 C.F.R. § 3162.3-1(c).

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4.

The Timeline of Events Giving Rise to this Case.

In 2001, the BLM issued a Reasonably Foreseeable Development Scenario (“RFDS”) as
part of the process of revising its Resource Management Plan for the San Juan Basin. See RFDS
at 1 (A.R.0000001).

This document’s purpose was to forecast the scope of oil-and-gas

development in the San Juan Basin over the next twenty years, from approximately 2002 to
2022. See RFDS at vi (A.R.0000006).
The RFDS focuses on the New Mexico portion of the San Juan Basin “to determine the
subsurface development supported by geological and engineering evidence, and to further
estimate the associated surface impact of this development.” RFDS at 6 (A.R.0000006). The
RFDS discusses the Mancos Shale, and states that “most existing Manco Shale . . . reservoirs are
approaching depletion and are marginally economic.

Most are not currently considered

candidates for increased density development or further enhanced oil recovery operations.”
RFDS at 5.24 (A.R.0000081).

It notes, however, that “there is considerable interest in

developing the Mancos Shale as a gas reservoir over a large part of the basin where it has not
been previously developed.” RFDS at 5.23 (A.R.0000080).
In 2003, the BLM issued its Resource Management Plan/Environmental Impact
Statement. See Farmington Resource Management Plan with Record of Decision at 1 (dated
December 2003)(A.R.0001931)(“RMP/EIS”). The RMP/EIS provided for the development of
9,942 new oil-and-gas wells. See RMP/EIS at 2, 10 (A.R.0001946, A.R.0001954). Since the
RMP/EIS was issued, “3,945 wells have been drilled in the planning area, or about 39 percent of
the 9,942 wells predicted and analyzed in the RMP/EIS.” Federal Defendant’s Opposition to
Plaintiff’s Opening Merits Brief at 10-11, filed June 9, 2017 (Doc. 113)(“BLM

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Response”)(citing Declaration of David J. Mankiewicz ¶ 3, at 3, filed June 9, 2017 (Doc. 1132)(“Mankiewicz Decl.”)). The RMP/EIS addresses only the “cumulative impacts of the potential
development of 9,942 new oil and gas wells,” and “does not approve any individual wells. Each
well will require a site-specific analysis and approval before permitting.”

RMP/EIS at 3

(A.R.0001947). See Dine, 2015 WL 4997207, at *6. The 2003 RMP/EIS itself “makes no
explicit mention of drilling in the Mancos Shale.” Dine, 2015 WL 4997207, at *6.
The Plaintiffs challenge over 300 APDs that the BLM approved seeking to drill wells into
the Mancos Shale. See Third Supplemented Petition for Review of Agency Action ¶ 1, at 1, filed
September 9, 2016 (Doc. 98)(“Complaint”). For each APD, the BLM issued an EA. See, e.g.,
2014 EA at 1 (A.R.0140148). These EAs are “tiered” to the 2003 RMP/EIS, meaning that they
incorporate the EIS by reference. 40 CFR § 1508.28. The EAs address the site-specific and
cumulative impacts of the proposed wells.

See 2014 EA at 25 (A.R.0140172); id. at 23

(A.R.0140170). Although these EAs are tiered to the 2003 RMP/EIS, the BLM also considered
newer studies when preparing the EAs, such as one relating to air quality. See 2014 EA at 19
(A.R.0140166).
Generally, an EA concisely analyzes the possible environmental impacts of a proposed
action and weighs available alternatives. See 40 C.F.R. § 1508.9. An EA differs from an EIS in
that the latter contains a big-picture analysis, whereas EAs focus narrowly on the possible
repercussions that each individual action, here granting APDs, would have. See, e.g., 2014 EA
at 25 (A.R.0140172). When drafting an EA, the BLM must determine whether to make a finding
of no significant impact (“FONSI”) or whether the proposal requires a new EIS. See 40 C.F.R.
§ 1508.9(a)(1). In this context, a FONSI briefly presents the reasons why an action “will not

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have a significant effect on the human environment and for which an environmental impact
statement therefore will not be prepared.” 40 C.F.R. § 1508.13. If the BLM issues an EA with a
FONSI instead of creating a new EIS, the EA tiers to the existing EIS. See 40 C.F.R. § 1508.28.
In this case, “[f]or the APDs regarding the Mancos Shale, the BLM prepared FONSIs to
accompany each EA.” Dine, 2015 WL 4997207, at *7 (alteration added).
In 2014, the BLM decided to prepare an amendment to its 2003 RMP/EIS, because
“improvements and innovations in horizontal drilling technology and multi-stage hydraulic
fracturing have enhanced the economics of developing” the Mancos Shale. Notice of Intent to
Prepare a Resource Management Plan Amendment and an Associated Environmental Impact
Statement for the Farmington Field Office, New Mexico, 79 Fed. Reg. 10548 (dated February
25, 2014)(A.R.0173818). The BLM is now preparing the 2003 RMP/EIS amendment. See BLM
Response at 12.
5.

The BLM and the NHPA.

Section 106 of the NHPA requires federal agencies conducting an “undertaking” to “take
into account the effect of the undertaking on any historic property.” 54 U.S.C. § 306108. A
historic property includes those in the “National Register of Historic Places maintained by the
Secretary of the Interior.” 36 C.F.R. § 800.16(l)(1). Chaco Park fits that definition. See World
Heritage List Nomination Submitted by the United States of America Chaco Culture National
Historical Park at 26 (dated November, 1984)(A.R.0217996)(noting that Chaco Park “is on the
National Register of Historic Places”). One way to comply with Section 106 of the NHPA is to
enter into a “programmatic agreement” with the Advisory Council on Historic Preservation. 36
C.F.R. § 800.14(b). “Compliance with the procedures established by an approved programmatic

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agreement satisfies the agency’s section 106 responsibilities for all individual undertakings of the
program covered by the agreement until it expires or is terminated. . . .” 36 C.F.R.
§ 800.14(b)(2)(iii). The BLM has entered into such an agreement. See State Protocol Between
Bureau of Land Management and the New Mexico State Historic Preservation Officer Regarding
the Manner in which BLM will meet its responsibilities under the National Historic Preservation
Act in New Mexico at 5 (A.R.0169217)(“2014 Protocol”)(noting that the BLM has entered into a
programmatic agreement). Generally, the 2014 Protocol’s purpose is to help the BLM comply
with the NHPA. See 2014 Protocol at 6 (A.R.0169218). During BLM’s consideration of the
APDs at issue in this case, two protocols were in effect. The BLM entered into the first protocol
in 2004, see Protocol Agreement Between the New Mexico Bureau of Land Management and
New Mexico State Historic Preservation Officer at 1 (dated June 4, 2014)(A.R.0169038)(“2004
Protocol”), which remained in effect until the 2014 Protocol superseded it. See 2014 Protocol at
5 (A.R.0169217)(“This Protocol supersedes the 2004 Protocol Agreement between the New
Mexico BLM and SHPO.”).
PROCEDURAL BACKGROUND
The Plaintiffs filed their petition in this case on March 11, 2015. See Petition for Review
of Agency Action, at 1, filed March 11, 2015 (Doc. 1)(“Petition”). After amending their petition
twice, they assert five claims: (i) the BLM violated NEPA by failing to analyze direct, indirect,
and cumulative effects of Mancos Shale fracking; (ii) the BLM violated NEPA by not preparing
an EIS on fracking the Mancos Shale; (iii) the BLM violated NEPA by taking action during the
NEPA process; (iv) the BLM violated NEPA, because it did not involve the public in drafting the
EAs; and (v) the BLM violated the NHPA, because it did not consider the indirect and

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cumulative effects on Chaco Park and its satellites and did not consult with the New Mexico
State Historic Preservation Officer (“SHPO”), Indian tribes, or the public vis-à-vis the effects the
wells could have on Chaco Park and its satellites. See Complaint ¶¶ 127-65, at 36-43.

The

Plaintiffs subsequently filed a motion for a preliminary injunction, arguing broadly on the merits
that the BLM violated NEPA for not analyzing the impacts of horizontal drilling and fracking.
See Plaintiffs’ Motion for Preliminary Injunction at 1, filed May 11, 2015 (Doc. 16); Plaintiff’s
Memorandum in Support of Motion for Preliminary Injunction at 19-21, filed May 11, 2015
(Doc. 16-1). The Court denied the preliminary injunction. See Diné, 2015 WL 4997207, at *1,
*38-45. The Court made that decision, in part, because the Plaintiffs did not have a substantial
likelihood of succeeding on the merits. See Diné, 2015 WL 4997207, at *40-45. It concluded
that the Plaintiffs’ case raises the following issues: (i) whether the APDs are proposals that “will
significantly impact the human environment,” requiring an EIS for the APDs as opposed to
tiered EAs; and (ii) whether the BLM could tier its EAs to the 2003 RMP/EIS instead of the
pending, amended RMP/EIS. Diné, 2015 WL 4997207, at *43. The Court determined that
(i) the 2003 RMP/EIS fully analyzed the fracking’s environmental impacts, and, (ii) while
directional drilling was a new technology that the 2003 RMP/EIS did not analyze, it has a “net
positive impact for the environment” when compared to vertical drilling. Dine, 2015 WL
4997207, at *44.

Because an EIS is needed only when the level of environmental impact

actually threatens to exceed levels contemplated in the prior EIS, the Court concluded that this
lesser harm of horizontal drilling did not require a new EIS. See Diné, 2015 WL 4997207, at
*45.11

11

In explaining this point, the Court gave the following, helpful, example:
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The Court acknowledged that, although more environmentally friendly than vertical
drilling, horizontal drilling was also more profitable and, thus, could lead to a “quasi-Jevons
Paradox”12 where the operators’ increased incentive to drill would lead to more horizontal drills,
and thus increase, overall, environmental harm. Diné, 2015 WL 4997207, at *44. The Court
concluded that, while that was possible, the likelihood of such a scenario was not likely enough
to require the BLM to analyze such a possibility at the EIS level. See Diné, 2015 WL 4997207,
at *44.
The Court also considered whether fracking combined with horizontal drilling produced a
new kind of environmental impact that vertical drilling combined with fracking did not produce,
and, thus, whether an EIS was needed for that harm. See Diné, 2015 WL 4997207, at *45. The
Court concluded that the BLM analyzed the qualitative difference between the two varieties of
drilling at the EA level and concluded that the impact difference between the two varieties of
technology “are insignificant,” and therefore an EIS analyzing those harms is superfluous. Diné,
2015 WL 4997207, at *45. Accordingly, the Court concluded that no new RMP/EIS was

[I]f an EIS anticipates 1,000 instances of an activity causing an aggregate
environmental impact of 10,000 units, and a new, more profitable technology
were to come out for conducting the activity, and the new technology reduced the
environmental impact of the activity from ten units per instance to four units per
instance, the popularization of the new technology may merit a new EIS, but only
when the aggregate total of proliferated activity’s environmental impact threatens
to exceed 10,000 units.
Diné, 2015 WL 4997207, at *45.
12

A Jevons Paradox occurs when technological improvements make the use of a resource
more efficient, but the overall consumption of that resource nonetheless rises, because the
technological improvement increases demand for that resource. See Dru Stevenson, Costs of
Codification, 2014 U. Ill. L. Rev. 1129, 1166 n.210 (2014)(citing Stanley Jevons, The Coal
Question (A.W. Flux. Ed., 3d. rev. ed. 1906)).
- 20 -

needed, and that the BLM did not act arbitrarily and capriciously when it tiered its EAs to the
2003 RMP/EIS. See Diné, 2015 WL 4997207, at *45.
The Plaintiffs appealed the Court’s determination to the United States Court of Appeals
for the Tenth Circuit. See Plaintiffs’ Notice of Appeal at 1, filed August 18, 2015 (Doc. 64).
The Tenth Circuit affirmed the Court’s order denying the Plaintiffs request for a preliminary
injunction and agreed with the Court’s determination that there was not a substantial likelihood
of success on the merits. See Diné Citizens Against Ruining Our Environment v. Jewell, 839
F.3d 1276, 1282-85 (10th Cir. 2016)(“Diné II”).13 It agreed with the Court that, “even with
increased drilling in the Mancos Shale formation and the switch to horizontal drilling and multistage fracturing,” the BLM did not act arbitrarily and capriciously, because “the overall amount
of drilling and related surface impacts are still within the anticipated level” in the 2003
RMP/EIS. 839 F.3d at 1283. As to the increased air quality impacts, the Tenth Circuit ruled that
“the agency considered these impacts in its environmental assessments and concluded that the
approved drilling activities would not cause a significant increase in emissions over the amount
anticipated in the RMP,” and thus there was no NEPA violation. 839 F.3d at 1283. Finally, the
Tenth Circuit agreed with the Court that there was insufficient evidence to conclude that the
“new horizontal drilling and multistage fracturing technologies will lead to environmental
impacts qualitatively different from the impacts assessed in the 2003 RMP.” 839 F.3d at 1283-

13

The Honorable Carlos Lucero, Circuit Judge for the Tenth Circuit, concurred in part
and dissented in part. See Diné II, 839 F.3d at 1285. Judge Lucero disagreed that with the
majority and the Court that the Supreme Court had, sub silentio, changed the preliminary
injunction standard. See Diné II, 839 F.3d at 1285. He agreed with the majority and the Court,
however, that the Plaintiffs did not demonstrate a substantial likelihood of success on the merits.
See Diné II, 839 F.3d at 1288.
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84. According to the Tenth Circuit, the Plaintiffs raised two arguments about this point on
appeal:
First, these technologies allow operators to extract significant amounts of oil from
the Mancos Shale, while the RMP mainly anticipated the extraction of gas from
other formations in a different region of the San Juan Basin. Second, horizontal
drilling and multi-stage fracturing involve a number of complexities not
associated with conventional wells that could result in additional environmental
impacts that were not anticipated or analyzed when the agency analyzed the
impacts of conventional drilling methods in the 2003 [RMP].
Diné II, 839 F.3d at 1284 (alterations in original). The Tenth Circuit rejected both arguments
based on the “deferential agency standard of review at issue in this case.” 839 F.3d at 1284.
According to the Tenth Circuit, the Plaintiffs arguments failed, because they did not “present any
argument or cite to any evidence as to how drilling in the Mancos Shale will cause different
environmental impacts than drilling in other formations in the San Juan Basin . . . or
[demonstrate] as to how additional oil wells will cause qualitatively different impacts from the
smaller number of oil wells and larger number of gas wells in the RMP.” 839 F.3d at 1284. The
Tenth Circuit held that the Plaintiffs similarly failed to show how “horizontal drilling and multistage fracturing may give rise to different types -- rather than different levels -- of environmental
harms when compared to the traditional vertical drilling and hydraulic fracturing techniques that
have historically been used in the San Juan Basin.” 839 F.3d at 1284. Accordingly, because the
Plaintiffs hold the burden of proof in an environmental case challenging agency action, the Tenth
Circuit determined that the Plaintiffs were not likely to succeed on the merits. See 839 F.3d at
1284. The Tenth Circuit cautioned, however, that the Plaintiffs could ultimately prevail if, later,
the Plaintiffs uncovered additional evidence or developed their arguments. See 839 F.3d at
1285. The Plaintiffs subsequently filed a petition for review on the merits. See Diné Brief at 1.

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1.

The Diné Brief.

The Plaintiffs begin by arguing that they have standing to bring this action. See Diné
Brief at 8-10. According to the Plaintiffs, they have alleged an injury, because “they use the
affected area and are persons ‘for whom the aesthetic and recreational values of the area will be
lessened by the challenged activity.’” Diné Brief at 9 (citing Friends of the Earth Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 183 (2000); Southern Utah Wilderness
Alliance v. Palma, 707 F.3d 1143, 1156 (10th Cir. 2013)). Specifically, they contend that they
have alleged a concrete injury, because many of the Plaintiffs’ members “live and work in the
areas affected by the Mancos Shale drilling activities, as well as routinely hike, recreate, camp,
research, derive inspiration, engage in cultural and spiritual practices and otherwise use areas on
and near the parcels where the horizontal drilling” is occurring, and “from which the effects of
this drilling are visible and audible.” Diné Brief at 9 (citing Eisenfeld Decl. ¶¶ 2, 9, 13-14, at 1,
3-7; Nichols Decl. ¶¶ 3-5, 7; Green Decl. ¶¶ 3-5, 7 at 2-3; Miura Decl. ¶ 4, at 2). They contend
that their injuries from the drilling include harming “their use and enjoyment of the areas” and
arise from “concerns about threats to their health and safety.” Diné Brief at 10. The Plaintiffs
also argue that their injuries are traceable to the BLM’s authorization of drilling permits, because
the BLM has not first evaluated the drillings’ impact to the environment. See Diné Brief at 10.
The Plaintiffs aver that adjudication in their favor would redress the harm, because it would
lessen the aesthetic, environmental, and recreational harms they are enduring. See Diné Brief at
10.
The Plaintiffs also argue that the BLM violated NEPA, because it failed to “take a hard
look” at the potential environmental consequences resulting from authorizing the Mancos Shale

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drilling.

Diné Brief at 12 (emphasis omitted).

Specifically, they contend that the 2003

RMP/EIS, which authorized 9,942 wells, did not analyze the effects of drilling in the Mancos
Shale, as it was thought not to be an economical option in 2003. See Diné Brief at 13. The
Plaintiffs add that, once fracking technology made the Mancos Shale well development an
economically feasible option, the BLM needed to take a hard look at the additional
environmental impact that 3,960 new wells in the Mancos Shale would have on the region. See
Diné Brief at 13-14. According to the Plaintiffs, the BLM cannot rely on the 2003 RMP/EIS,
because “[t]he 2003 RMP/EIS does not offer any analysis for the landscape-level impacts from
drilling at this new scale, and therefore cannot be used as an underlying basis for analyzing
Mancos Shale EAs and approving APDs.” Diné Brief at 14.
The Plaintiffs argue that the Court and the Tenth Circuit erred when denying a
preliminary injunction on the grounds that a new EIS is needed only “when the quantum of
environmental impact exceeds that which the operative EIS anticipated,” and that no new
statement was needed, because the “Mancos Shell development had not yet exceeded the
foreseeable impacts from 9,942 wells.” Diné Brief at 15. According to the Plaintiffs, the Court
and the Tenth Circuit erred, because the relevant regulations require the agency to consider “the
impacts from foreseeable development” and not just the impacts from past development. Diné
Brief at 15-16 (citing 40 C.F.R. § 1508.7)(emphasis in Diné Brief).

The Plaintiffs argue,

therefore, that, because the 2003 EIS did not anticipate horizontal drilling’s and fracking
technology’s effects, and that the foreseeable impact of the Mancos Shale wells exceeds the
quantum of environmental impacts anticipated and analyzed in the 2003 EIS, the authorization of
the additional wells violates NEPA. See Diné Brief at 16-17 (“BLM has never analyzed the

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environmental and human health impacts from the combined total of 13,902 reasonably
foreseeable oil and gas wells across the San Juan Basin.”).
The Plaintiffs also contend that the BLM violated NEPA when all of the EAs for the
Mancos Shale wells “tiered” to the 2003 RMP/EIS. Diné Brief at 18-21. According to the
Plaintiffs, tiering is only allowed when the “project being considered is part of the broader
agency action addressed in the earlier NEPA document.” Diné Brief at 18. The Plaintiffs argue
that, because the 2003 RMP/EIS did not consider at length horizontal drilling’s or fracking’s
effects on the environment, tiering was inappropriate and violated NEPA. See Diné Brief at 21.
The Plaintiffs contend that the BLM also violated NEPA, because it did not analyze the
cumulative environmental and human health impacts resulting from horizontal drilling and
fracking. See Diné Brief at 21-25. The Plaintiffs assert that the BLM’s analysis needed to
include an examination of the past, present, and future wells, but it did not. See Diné Brief at 2223. They add that BLM failed specifically to consider “GHG emissions” in the 2003 RMP/EIS.
Diné Brief at 24.
The Plaintiffs also argue that the BLM violated NEPA, because it failed to prepare an EIS
for the 3,960 Mancos Shale wells. See Diné Brief at 27 (“BLM cannot continue to issue
individual drilling approvals absent completion of an EIS.”). They assert that the BLM has
failed to issue a “convincing statement of reasons” for why the wells “will impact the
environment no more than insignificantly,” so an EIS is necessary. See Diné Brief at 27. Thus,
according to the Plaintiffs, because none has been issued, the BLM has violated NEPA. See
Diné Brief at 27-28.

- 25 -

The Plaintiffs add that the BLM violated NEPA, because it failed to satisfy that statute’s
“public notice and participation requirements.” Diné Brief at 29. The Plaintiffs contend that,
because BLM approved 362 Mancos Shale wells and 122 APDs without public involvement and
by labeling them “routine projects,” the BLM did not follow NEPA’s command. Diné Brief at
29. The Plaintiffs contend that the BLM had notice as early as August 2012 that the public was
interested in the Mancos Shale wells, but, according to the Plaintiffs, the BLM’s only outward
facing action was to make public its “decision documents” in 2015 several months or years after
it had issued APD approvals. Diné Brief at 29-31 (citing 43 C.F.R. § 46.305 (stating that the
agency must “notify the public of the availability of an environmental assessment and any
associated finding of no significant impact once they have been completed”)).
The Plaintiffs next argue that the BLM violated NHPA. See Diné Brief at 32-41. They
contend that oil-and-gas development adversely affects Chaco Park, which is on the National
Register of Historic Places. See Diné Brief at 34-35. The Plaintiffs assert that, despite the
development’s impact on those locations, the BLM did not conduct a “landscape-level” analysis,
so the BLM’s approval of APDs violates section 106 of NHPA. See Diné Brief at 35-36.
The Plaintiffs argue that, although the BLM can satisfy NHPA section 106 without
conducting a landscape level analysis if it establishes a program alternative, the BLM has not
complied with the 2004 or 2014 Protocols, which the BLM entered into as a program alternative
to satisfy NHPA. See Diné Brief at 36. The Plaintiffs aver that the BLM has not satisfied the
2014 Protocol, because it requires the BLM to analyze “Mancos Shale development’s indirect
and cumulative effects” on Chaco Park and its satellite sites, but, according to the Plaintiffs, the
BLM has analyzed only the “direct impacts to archaeological sites.” Diné Brief at 36. The

- 26 -

Plaintiffs add that the BLM’s failure to consider all of the development’s indirect impacts to the
sites “flows from the agency’s arbitrary” definition of the Area of Potential Effect (“APE”).
Diné Brief at 37. See id. at 38 (“No record evidence exists to indicate that BLM ever defined an
APE for indirect effects, or that BLM ever analyzed the indirect adverse effects of Mancos Shale
development on historic properties.”). According to the Plaintiffs, because the BLM has ignored
indirect effects on Chaco Park and its satellites, such as excess noise, air, and light pollution, the
BLM has violated NHPA. See Diné Brief at 39-40.
Finally, the Plaintiffs argue that NHPA’s regulations require the BLM to consider
“reasonably foreseeable effects” of development, which BLM failed to consider. See Diné Brief
at 40 (citing 36 C.F.R. § 800.5(a)(1)). They add that “even if a single APD might not indirectly
cause an adverse effect” to Chaco Park, “the 362 APDs already approved by the BLM may
cumulatively cause an adverse effect” to Chaco Park. Diné Brief at 40 (emphasis in original).
They conclude that, even if the BLM may have considered direct effects of development,
because BLM failed to consider indirect and cumulative effects, the BLM has violated NHPA.
See Diné Brief at 40-41.
2.

The BLM’s Response.

The BLM responds that: (i) the Plaintiffs do not have standing; (ii) some of the Plaintiffs’
challenges fail as they do not attack final agency action; (iii) some of the Plaintiffs’ challenges
fail as moot; and (iv) the BLM has not violated NEPA nor NHPA. See BLM Response at 1-44.
First, the BLM asserts that the Plaintiffs do not have standing to challenge the APDs. See BLM
Response at 8-13. BLM contends that the Plaintiffs have not alleged an injury-in-fact, because
there is an insufficient geographical nexus between the Plaintiffs’ purported harms and the well

- 27 -

developments. See BLM Response at 9-11. There is no geographic nexus, according to the
BLM, between the wells and the Plaintiffs, because the Plaintiffs “all state vaguely that they visit
an undefined Chaco Region or greater Chaco area,” which, according to the BLM, is too
undefined a declaration to meet the injury-in-fact requirement. BLM Response at 10-11. It adds
that the only specific locations that the Plaintiffs identify are “at least eight miles away” from the
challenged wells, so they are not geographically close enough to establish an injury. See BLM
Response at 11.
The BLM also argues that the Plaintiffs have failed standing’s traceability and
redressability prongs. See BLM Response at 12-13. The BLM argues that the Plaintiffs fail the
traceability requirement, because the Plaintiffs have not tied their injuries to the 382 specific
wells at issue. See BLM Response at 12. Instead, according to the BLM, the Plaintiffs tie their
injuries generally to “oil and gas development,” which, again according to the BLM, is too vague
to meet the standing requirement, because there are 23,000 active wells in the area. BLM
Response at 12-13.
Next, the BLM argues that Plaintiffs’ arguments challenging future APD approvals fail,
because these approvals do not challenge final agency action. See BLM Response at 13. The
BLM argues that the Court has jurisdiction, under the APA, to review only “final agency
actions.” BLM Response at 14 (citing 5 U.S.C. § 704). It follows, according to the BLM, that
the Court lacks jurisdiction over the 28 future APD approvals, because those approvals are not
final. See BLM Response at 14. The BLM also argues that the Plaintiffs’ challenges to the
completed wells -- wells that have already been drilled, fracked, or abandoned -- are moot. See
BLM Response at 15. According to the BLM, the challenges to the 177 completed wells are

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moot, because a court cannot enjoin, preclude, or “undo” a completed project. BLM Response at
15.
The BLM also argues that it complied with NEPA. See BLM Response at 16-36. First, it
contends that the BLM took a hard look at the impacts of the challenged wells. See BLM
Response at 16. The BLM argues that the Plaintiffs have not presented new evidence since the
preliminary injunction stage. See BLM Response at 16. Thus, according to the BLM, “the
Court’s original analysis continues to apply.” BLM Response at 16. It argues that, because the
additional Mancos Shale wells will not exceed the impacts accounted for in the 2003 RMP/EIS,
the BLM has not violated NEPA. See BLM Response at 16. According to the BLM, the 2003
RMP/EIS accounted for 5,997 wells in the San Juan Basin. See BLM Response at 17. The BLM
asserts that, from those 5,997 wells projected, it follows that the 3,960 predicted wells either
drilled or to be drilled falls within the original prediction, so the 2003 RMP/EIS remains valid
and the BLM can rely upon it. See BLM Response at 17.
The BLM contends that the Plaintiffs’ argument, which asserts that the BLM did not
consider the foreseeable effect of the 3,960 wells, is incorrect. See BLM Response at 17. It
argues that the record demonstrates that the 2001 RFDS concluded that the Mancos Shale “may
have significant potential as a shale gas candidate,” and that there may be reservoir zones in the
Mancos shale not yet recognized. BLM Response at 17. According to the BLM, the RFDS also
recognized the potential for horizontal drilling and fracking in the Mancos Shale. See BLM
Response at 17-18. The BLM asserts, moreover, that the 2003 RMP/EIS “noted that the Mancos
Shale was a source of both oil and gas.” BLM Response at 18. The BLM concedes that the
2003 RMP/EIS did not consider developing the Mancos Shale specifically, but the BLM notes

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that analyzing the Mancos Shale was not the RMP/EIS’ goal. See BLM Response at 18. Rather,
according to the BLM, the 2003 RMP/EIS’ goal is to analyze the “impacts of all foreseeable oil
and gas development on federal lands in the San Juan Basin, regardless of geological formations
targeted or technologies used.” BLM Response at 18. The BLM also argues that the 2003
RMP/EIS anticipated fracking and “directional drilling,” in addition to “other innovative drilling
techniques.” BLM Response at 18. According to the BLM, “[t]he RMP/EIS did not exclude
horizontal drilling and multistage fracking from its analysis because both were widely used in
similar formations elsewhere in the United States by 2003, and foreseeable in the Mancos Shale
as soon as the market made them economically feasible.” BLM Response at 19.
The BLM next contends that tiering to the RMP/EIS is appropriate, because the 2003
EMP/EIS considered fracking and horizontal drilling. See BLM Response at 21. It adds,
however, that, even if the 2003 RMP/EIS did not consider fracking and horizontal drilling,
tiering is still appropriate, because the 2003 RMP/EIS’ analysis of vertical drilling would not be
qualitatively different from horizontal drilling and fracking.

See BLM Response at 21.

According to the BLM, because horizontal drilling and fracking “result in the same types of
impacts as other type of oil and gas development,” including vertical drilling, tiering to the 2003
RMP/EIS, which considered the effects of vertical drilling, remains appropriate. See BLM
Response at 21.

The BLM argues that the Plaintiffs present no admissible evidence that

horizontal drilling and fracking are so different from vertical drilling that tiering is inappropriate.
See BLM Response at 22. It also argues that there is no record evidence that horizontal drilling
causes so much more harm than vertical drilling that impacts from horizontal drilling exceed the
impacts of the 9,942 wells analyzed in the 2003 RMP/EIS. See BLM Response at 23.

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The BLM also argues that that the 2003 RMP/EIS considered the cumulative impacts of
the 3,960 Mancos Shale wells, including the region’s past, present, and reasonably foreseeable
future oil and gas development. See BLM Response at 24-25. The BLM adds that its EAs
effectively supplement the 2003 RMP/EIS’ analysis of fracking and horizontal drilling. See
BLM Response at 25. It also argues that the EAs “explain that fracking in the Mancos Shale is
not anticipated to impact groundwater,” because the Mancos Shale is separate from the relevant
aquifers. BLM Response at 25.

The BLM asserts that, contrary to the Plaintiffs’ arguments,

the 2003 RMP/EIS took a “hard look” at the cumulative impact the wells would have on climate
change, because the RMP/EIS estimated the wells’ greenhouse gas emissions.

See BLM

Response at 27.
Next, the BLM asserts that it complied with NEPA’s public involvement requirements.
See BLM Response at 31.

According to the BLM, it satisfied those requirements by:

(i) maintaining and updating a NEPA log on its website; (ii) posting notices for proposed wells in
a public reading room; and (iii) hosting public meetings at the site of each proposed well. See
BLM Response at 31. The BLM contends that it did not need to solicit additional public
comment about the Mancos Shale horizontal drilling and fracking, because fracking and
horizontal drilling is “routine in the San Juan Basin.” BLM Response at 32. The BLM also
argues that it is only required to notify the public of final EA and FONSIs. See BLM Response
at 31. It contends that it satisfied those specific requirements, because, once it issued an APD
decision, the BLM marked the APD as approved on the online NEPA log, and it placed final
EAs, FONSIs and decision records in its public reading room and on its website. See BLM
Response at 32-33. The BLM also contends that, while there was “some delay” in posting

- 31 -

“certain EAs and FONSIs in the reading room and online,” NEPA does not have a notice
deadline. See BLM Response at 33. The BLM adds that, even if it failed to give the requisite
notice, such an error is harmless, because there has been no evidence of prejudice to the
Plaintiffs. See BLM Response at 34. According to the BLM, the error is also harmless, because
the Plaintiffs and BLM worked to rectify posting process errors together and the BLM provided
the Plaintiffs relevant documents. See BLM Response at 35.
Finally, the BLM argues that it complied with the NHPA. See BLM Response at 36. The
BLM argues that it complied with the NHPA “by defining the APE for each challenged APD
based on the location of the proposed well and the types of known and suspected historic
properties in the area, and assessing the adverse effects to historic properties both within and
without the APE.” BLM Response at 37. It also argues that the NHPA does not require the
BLM to issue a separate APE analysis for direct and indirect effects. See BLM Response at 38
(citing 36 C.F.R. §§ 800.4(a)(1), 800.16(d)). The BLM contends that it did not violate the
NHPA by failing to consult with the State Historic Preservation Office (“SHPO”) after defining
an APE that accounts for direct effects, because a SHPO consultation is required only when
defining the APE is complicated or controversial. See BLM Response at 38-39. BLM also
contends that it did not contravene the NHPA, because the “vast majority of historic properties
near the challenged APDs are not landscape level properties” but are archeological sites. BLM
Response at 39. It follows, according to the BLM, that indirect and cumulative effects such as
air pollution, noise, and visual disturbances do not affect the archaeological sites’ historic
characteristics, and thus the BLM did not violate the NHPA. See BLM Response at 39. The
BLM also argues that air pollution, noise, and visual disturbances do not adversely affect the

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historic characteristics of Chaco Park and its satellite locations, so there is no NHPA violation.
See BLM Response at 40.

The BLM adds that, even if air pollution, noise, and visual

disturbances do affect Chaco Park and its satellite locations, it is not foreseeable that those
disturbances would affect those sites, especially because they are miles away from the oil wells,
so there is no NHPA violation. See BLM Response at 40-41. Finally, the BLM argues that it
has considered effects on historic properties, which, according to the BLM, is all that NHPA
requires.

See BLM Response at 41-42 (“[T]he NHPA only requires that an agency take

procedural steps to identify cultural resources; it does not impose a substantive mandate on the
agency to protect the resources.”).
3.

The Operators’ Response.

The Operators also filed a response. See Operators’ Response Brief, filed June 23, 2017
(Doc. 114)(“Operators’ Response”). According to the Operators’ the main issue is not whether
“newer and more complex technologies are being used to drill Mancos Shale wells,” but, instead
“whether the environmental impacts of those methods were adequately considered in the project
specific EAs, or the programmatic RMP/EIS to which the EAs were tiered.”

Operators’

Response at 9. The Operators contend that the BLM complied with NEPA, because “the impacts
of the approved wells fell within the scope of the 9,942 wells studied in 2003.” Operators’
Response at 8-9. Although the Operators concede that any one horizontal drill may have more
impact than a single vertical well, as a horizontal well requires a larger well pad and longer
drilling times, see Operators’ Response at 6, they argue that horizontal drilling “decreases” the
overall impact compared to vertical drilling, because “fewer wells are needed to develop the
resource,” Operators Response at 6-7 (emphasis in original). They also argue that the 2003

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RMP/EIS accounted for the impacts of horizontal drilling, so, according to the Operators, there is
no NEPA violation. See Operators Response at 9.
The Operators also argue that the tiered 2014 EAs properly updated the 2003 RMP/EIS
analysis. See Operators’ Response at 11. In support of that contention, they note that the EAs
since 2014 incorporate by reference “detailed cumulative air impact analysis” from the BLM’s
2014 Air Resources Technical Report (“ARTR”), which describes “the air quality impacts of
21,150 existing oil and gas wells in the Basin, . . . future oil and gas drilling (including in the
Mancos Shale), as well as impacts of other greenhouse gas sources.” Operators’ Response at 1112. According to the Operators, the 2014 ARTR accounted specifically for the Mancos Shale
formation, so the BLM was justified in relying on that report. See Operators’ Response at 12.
The Operators echo the BLM’s argument that the BLM does not need to analyze the
3,960 potential Mancos Shale wells as additional wells to the 9,942 wells analyzed in the 2003
RMP/EIS. See Operators’ Response at 13-14. They also argue that, with regard to cumulative
impact studies, NEPA does not require individual APDs to include such an expansive cumulative
analysis. See Operators’ Response at 14-15. The Operators add that the BLM was not required
to halt its decision-making processes once it started the RMP amendment process, because to
“hold otherwise would jeopardize or impair BLM’s ability to manage the public lands, since it is
often engaged in plan amendment or revision.” Operators’ Response at 17. The Operators also
argue that the BLM adequately involved the public in its EA process for the same reasons that
the BLM articulated. See Operators’ Response at 18-20.
The Operators contend that the BLM complied with NHPA. See Operators’ Response at
20. First, they contend that the NHPA does not protect the “Greater Chaco Landscape” -- a

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67,000 square-mile region -- as the Plaintiffs assert, because the Greater Chaco landscape is not
an historic property. See Operators’ Response at 20-21. The Operators also argue that, even if
the landscape did qualify as a historic property, “Diné fails to demonstrate how the landscape
itself would be adversely affected in a way that would disqualify it from listing on the National
register.” Operators’ Response at 22. The Operators’ argue that the Mancos Shale wells will not
contribute to changing the region to such a degree that it loses its historic status, because the
Mancos Shale area has already been “subject to extensive oil and gas development under preexisting oil and gas leases.” See Operators’ Brief at 22. They also argue that many of the
landscape alterations Diné asserts -- visual and noise effects associated with drilling and
completion -- are temporary in nature, so they “will not permanently alter the character of the
landscape.” Operators’ Brief at 23.
The Operators contend that there was no NHPA violation, because the BLM properly
followed the 2004 and 2014 Protocols. See Operators’ Brief at 24. According to the Operators,
the State Protocol requires the BLM to consult with the State Historic Preservation Office if and
only if the APE is “not precisely defined by the State Protocol.” Operators’ Brief at 24. The
Operators argue that the 2014 Protocol defines the APE as “the area of direct effect (as precisely
defined for specified actions), and known historic properties indirectly affected in the vicinity, if
BLM cultural resource specialists determine it is appropriate to the Area of Potential Effect.”
Operators’ Brief at 24-25. The Operators argue that each proposed APD “applied the direct Area
of Potential effect,” and the BLM did not identify known historic properties outside the direct
APE zone that might be indirectly affected, so, according to the Operators, the BLM complied
with the 2004 and 2014 Protocols. Operators’ Brief at 25. The Operators also argue that the

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BLM properly complied with section 106’s requirement that it consult regarding the effects of oil
and gas development, because the BLM affirmed seventy-nine specially designated areas, it
recognized two sites as Areas of critical environmental concern, and oil and gas leasing was
either eliminated in the seventy-nine sites or subjected to strict restrictions. See Operators’ Brief
at 25-26.
Finally, the Operators argue that, should the Court determine that the Plaintiffs prevail,
remand is the appropriate remedy as opposed to an injunction or vacatur. See Operators’ Brief at
26. They contend that any deficiencies in the well approvals are not serious enough for vacatur
or an injunction, because the BLM has employed “robust cumulative impact analyses” in its
most recent RFDs, and “any NEPA errors that may have existed at one time have now been
corrected.” Operators’ Brief at 27. Thus, according to the Operators, “if any NEPA or NHPA
error exists, it can be addressed on remand without upsetting the APD approvals.” Operators’
Brief at 27. They add that any BLM error must be weighed against the harm to the Operators if
APDs are vacated. See Operators’ Brief at 28. The Operators argue that the harm they would
suffer is dire, because their contractors and employees “rely on the continued viability of oil and
gas development in northwestern New Mexico.” Operators’ Brief at 28. They conclude that
remand is “the only appropriate remedy.” Operators’ Brief at 28.
4.

API’s Response.

The API responds and asserts many of the same arguments as the BLM and the
Operators. See Intervenor-Defendant American Petroleum Institute’s Opposition to Plaintiffs’
Opening Merits Brief at 1-23, filed June 23, 2017 (Doc. 115)(“API Response”). It emphasizes
that the Court should deny the Plaintiffs’ relief, because the Diné Brief largely reasserts

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arguments that the Court has already disposed of at the preliminary injunction stage. See API
Response at 3-6 (“[T]he Plaintiffs continuously repeat -- sometimes verbatim -- evidence and
argument from their preliminary injunction briefing before this Court and the Tenth Circuit.”).
The API contends that the only new arguments the Plaintiffs assert are that: (i) the BLM
failed consider greenhouse emissions and climate change; (ii) the BLM failed to allow public
comment; (iii) the BLM violated NHPA. See API Response at 7. Nevertheless, API considers
the Plaintiffs’ old NEPA arguments and contends that the Court must defer to the BLM’s
determinations. See API Response at 9-10. It also asserts that the BLM was not required to
issue a new or supplemental EIS, because there was no new information compelling a conclusion
that the new wells would have affected the environment in a significant manner which the 2003
RMP/EIS did not already address. See API Response at 10.
API also argues, as the Operators did, that the Plaintiffs have not established that the
balance of equities favor an injunction or vacatur over remand should the Court determine that
the BLM violated NEPA or NHPA. See API Response at 13. It contends that the Plaintiffs’
purported environmental harms are not that significant, because the Plaintiffs have already
experienced a great deal of oil and gas development, as the San Juan Basin has been subject to
drilling for more than 60 years. See API Response at 15 (“Under these circumstances, the
incremental environmental impacts of the additional challenged APDs are both relative limited in
comparison to the oil and gas rigs seemingly all over the place before Plaintiffs ever filed this
lawsuit.”). API also contends that the Plaintiffs health and safety concerns are not enough to
demonstrate irreparable harm, because extensive New Mexico regulations ensure that all wells
are safe. See API Response at 16-17. API adds that the Plaintiffs’ harms are outweighed by the

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public interest, because the enormous economic benefits of drilling have already been
recognized. See API Brief at 18 (citing MOO at 98 n.25, 2015 WL 4997207, at *50 n.25). API
also argues that the San Juan Basin drilling is an enormous job creator for the state. See API
Brief at 19. Thus, according to API, the public benefit arising from horizontal drilling and
fracking outweighs the Plaintiffs’ purported environmental injury. See API Brief at 20-22. API
concludes that the Court should deny the request for vacatur or injunctive relief. See API Brief
at 23.
5.

The Plaintiffs’ Reply.

The Plaintiffs reply that they have standing. See Plaintiffs’ Reply at 1, filed July 28,
2017 (Doc. 117)(“Reply”). They contend that to allege an injury-in-fact, they are not required to
show that they have visited each well site; they argue that, instead, they need only allege that
they have “traversed through or within view of parcels of land where oil and gas development
will occur and plans to return.” Reply at 2 (citing S. Utah Wilderness All. v. Palma, 707 F.3d
1143 1155 (10th Cir. 2013)). The Plaintiffs allege that they have traversed or seen those parcels
as demonstrated in declarations. See Reply at 3-4. The Plaintiffs also contend they have met the
traceability requirement, because causation under NEPA is tied to the BLM’s failure to comply
with NEPA and not to the specific oil wells. See Reply at 4.
The Plaintiffs reiterate that the BLM violated NEPA for not conducting an analysis on the
382 Mancos Shale wells before authorizing them. See Reply at 6. They argue again that the
2003 RMP/EIS never contemplated or analyzed the cumulative impacts form horizontal drilling
and fracking, so the BLM cannot rely on that study and statement to contend that they adhered to
NEPA. See Reply at 7. Thus, according to the Plaintiffs, the “BLM should have updated its

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cumulative impacts analysis,” but the BLM failed to do so and thus violated NEPA. Reply at 7.
The Plaintiffs also argue that, although fracking and horizontal drilling were widely used in
2003, that fact does not demonstrate that the 2003 RMP/EIS adequately considered those
techniques. See Reply at 8-9. They also assert that the BLM violated NEPA, because the
“record conclusively demonstrates that the RMP/EIS was focused only on the foreseeable
impacts from 9,942 wells developed in economically feasibly gas-bearing formations at that
time, not on the Mancos Shale.” Reply at 9.
The Plaintiffs also argue that the cumulative impact of the 3,960 horizontal wells added
to the wells already drilled exceeds the cumulative impact that the 2003 RMP/EIS analyzed. See
Reply Brief at 11. They contend -- with the tables reproduced below -- that the surface impact,
the water consumption, and the pollution levels all exceed what the 2003 RMP/EIS considered.

Surface Impacts
Well Type
Vertical
Horizontal

Acres
(Per Well)

Estimated Total Impacts
(3,945 vert./3,960 horiz.)

2
5.2
Total Combined
Considered (2003 RMP/EIS)
Percentage Increase

7,890
20,592
28,482
18,577
53%

Water Consumption
Gallons
(Per Well)
283,500
1,020,000
Total Combined
Considered (2003 RMP/EIS)
Percentage Increase

Well Type
Vertical
Horizontal

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Estimated Total Impacts
(3,945 vert./3,960 horiz.)
1,118,407,500
4,039,200,000
5,157,607,500
2,818,557,000
82%

Air Pollution
Well Type

Well
Construction
(d )
Vertical
9
Horizontal
25
Percentage Increase
Est. Total Impacts (3.945 vert.)
Est. Total Impacts (3,960 horiz.)
Total Combined
Considered (2003 RMP/EIS)
Percentage Increase

NOx (tpy)
2.30
6.13
267%
20,869
24,275
45,144
22,866
97%

CO(tpy)
0.63
1.64
260%
2,485
6,494
8,979
6,263
43%

VOC(tpy)
/3 960
0.20
0.55
275%
789
2,178
2,967
1,988
49%

PM10 (tpy)
0.92
2.54
276%
3,629
10,058
13,687
9,146
50%

See Reply at 11-12 (footnotes omitted). The Plaintiffs add that site-specific EAs do not cure the
deficiency, because the EAs conflate the direct and indirect impact analysis. See Reply at 12.
The Plaintiffs also argue that the 2003 RMP/EIS did not consider climate change, so could not
have accounted for the increased impact the horizontal drilling and fracking wells would have
had on climate change. See Reply at 13.
The Plaintiffs contend that the Court owes the BLM no deference in the NEPA context.
See Reply at 14 (citing Park County v. Dep’t of Agric., 817 F.2d 609, 620 (10th Cir. 1987)).
They also reiterate their contention that the BLM failed to involve the public in the NEPA
process. See Reply at 15. The Plaintiffs argue that, although the BLM provided information to
the public through the internet, onsite meetings, notices of staking for individual wells, such
notice was insufficient under NEPA, because “none of these actions provided information about
the context or potential impacts of APD development.” Reply at 15-16 (“BLM failed to provide
the public with meaningful information about the direct, indirect, and cumulative impacts of
BLM’s decisions, prior to approving the wells.”).
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The Plaintiffs contend that this lack of

information was prejudicial, because “public participation and informed agency decisionmaking
are the twin aims at the heart of NEPA.” Reply at 17.
The Plaintiffs reiterate that the BLM violated NHPA, because the BLM ignored indirect
and cumulative affects to the characteristics of the historic property. See Reply at 17-18. They
argue that even if the distance between Chaco Park and its satellites insulates them from the
adverse noise and light pollution of the wells, the BLM still violated NHPA, because the BLM
did not analyze what effect, if any, those pollutions would have on the sites. See Reply at 19.
The Plaintiffs add that the BLM did not follow the 2014 Protocol, because, under the 2014
Protocol, the BLM is required to consider indirect effects, which, according to the plaintiffs, the
BLM did not consider. See Reply at 20-21. The Plaintiffs assert that the BLM did not meet its
NHPA obligations when it spoke to the SHPO as part of the 2003 RMP/EIS, because the 2003
RMP/EIS did not discuss the impacts to landscape-level historic properties. See Reply at 21.
The Plaintiffs aver that their claims are not moot, even though 177 wells have already
been drilled or abandoned, because the Plaintiffs’ injuries are not confined to “the acts of
drilling, and persist even once wells are complete.” Reply at 22. They argue that an agency
action is not moot if the violation of the applicable law “can be undone,” even if doing so would
be expensive or complex. Reply at 23. The Plaintiffs add that the Court has “broad discretion to
order equitable relief short of” well removal, such as “mitigation measures and restrictions on
well operations.” Reply at 23. They also argue that the Court can still issue a declaratory
judgment. See Reply at 23. They conclude that the BLM’s actions are “capable of repetition but
evading review.” Reply at 23-24 (“If BLM’s mootness argument for APDs with already-drilled

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wells prevails, nothing would prevent BLM from ‘ignor[ing] the requirements of
NEPA.’”)(citing Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001)).
The Plaintiffs also argue that they are entitled to the remedies which they seek, because
the BLM’s alleged NEPA violations are egregious. See Reply at 25 (“Here, vacatur is the only
remedy that serves NEPA’s fundamental purpose of requiring agencies to look before they
leap.”)(emphasis in original).

The Plaintiffs argue that departing from the typical vacatur

remedy is only appropriate in “unusual and limited circumstances.” Reply at 25. They conclude
that, if the Court determines that the Plaintiffs are correct on the merits, “they respectfully ask
the court to bifurcate the remedy phase and allow for additional briefing, at which point they will
satisfy the required elements for a permanent injunction.” Reply at 26 (citing Monsanto v.
Geertson Seed Farms, 561 U.S. 139, 156-57 (2010)).
LAW REGARDING STANDING
A federal court may hear cases only where the plaintiff has standing to sue.

See

Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009). The plaintiff bears the burden
of establishing standing. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104
(1998). The plaintiff must “allege . . . facts essential to show jurisdiction. If they fail to make
the necessary allegations, they have no standing.” FW/PBS v. City of Dallas, 493 U.S. 215, 231
(1990)(internal citations and quotations omitted). Moreover, where the defendant challenges
standing, a court must presume lack of jurisdiction “unless the contrary appears affirmatively
from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991)(quoting Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 546 (1986))(internal quotation marks omitted). “It is a longsettled principle that standing cannot be inferred argumentatively from averments in the

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pleadings but rather must affirmatively appear in the record.” Phelps v. Hamilton, 122 F.3d
1309, 1326 (10th Cir. 1997)(Henry, J.)(quoting FW/PBS v. City of Dallas, 493 U.S. at
231)(citations omitted)(internal quotation marks omitted).
“Article III of the Constitution limits the jurisdiction of federal courts to Cases and
Controversies.” San Juan Cty., Utah v. United States, 503 F.3d 1163, 1171 (10th Cir. 2007)(en
banc). See U.S. Const. art. III, § 2. “[A] suit does not present a Case or Controversy unless the
plaintiff satisfies the requirements of Article III standing.” San Juan Cty., Utah v. United States,
503 F.3d at 1171. To establish standing, a plaintiff must show three things: “(1) an injury in fact
that is both concrete and particularized as well as actual or imminent; (2) a causal relationship
between the injury and the challenged conduct; and (3) a likelihood that the injury would be
redressed by a favorable decision.” Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th Cir.
2008)(Hartz, J.)(internal quotation marks omitted).
“Standing is determined as of the time the action is brought.” Smith v. U.S. Court of
Appeals, for the Tenth Circuit, 484 F.3d 1281, 1285 (10th Cir. 2007)(Seymour, J.)(quoting Nova
Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005)(Ebel, J.)). In Smith v. U.S. Court of
Appeals, for the Tenth Circuit, the Tenth Circuit rejected a plaintiff’s standing to challenge the
Colorado appellate courts’ practice of deciding cases in non-precedential, unpublished opinions,
which the plaintiff asserted allowed courts to affirm incorrect decisions without interfering with
official, “published” law. 484 F.3d at 1285. The Tenth Circuit noted that the plaintiff had
recently taken his state appeal and, therefore,
was in no position to challenge the adequacy of state appellate review in cases
culminating in unpublished opinions unless he could show that he would in fact
receive such review from the state court of appeals (and from the state supreme
court as well, if it took the case on certiorari).
- 43 -

484 F.3d at 1285.
By contrast, in Nova Health Sys. v. Gandy, the Tenth Circuit concluded that abortion
providers had standing to challenge an Oklahoma parental-notification law on the grounds that
they were in imminent danger of losing patients because of the new law. See 416 F.3d 1154.
Although determining that there was standing, the Tenth Circuit was careful to frame the issue as
whether, “as of June 2001 [the time the lawsuit was filed],” Nova Health faced any imminent
likelihood that it would lose some minor patients seeking abortions.

416 F.3d at 1155.

Moreover, while focusing on the time of filing, the Tenth Circuit allowed the use of evidence
from later events -- prospective patients lost because of the notification law after the lawsuit
began -- to demonstrate that the plaintiff faced an imminent threat as of the time of filing. See
416 F.3d at 1155.
In construing the standing doctrine, the Court has determined that an attorney running for
office as a Court of Appeals of New Mexico judge lacked standing when that attorney alleged
that the New Mexico attorney disciplinary counsel harmed his chances of election when the
counsel published a summary suspension petition about him. See League of United Latin
American Citizens v. Ferrera, 792 F. Supp. 2d 1222, 1233-39 (D.N.M. 2011)(Browning, J.). It
so concluded, because the suspension petition’s facts “were already known to voters” through the
aggressive campaign tactics of the attorney’s election rival, so the harm was not “fairly traceable
to the Defendant’s action.” 792 F. Supp. 2d at 1238-39. The Court has, however, determined
that a woman had standing to challenge a New Mexico criminal statute’s constitutionality, even
though the state had not yet filed charges against the woman, because the district attorney had
not attested that he would not bring charges under the challenged statute. See Payne v. Wilder,
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2017 WL 2257390, at *38 (D.N.M. Jan. 3, 2017)(Browning, J.). The Court reasoned that an
injury in fact existed, despite the lack of a charge, because the district attorney’s refusal to
foreswear a prosecution demonstrated a “credible threat of prosecution.” Payne v. Wilder, 2017
WL 2257390, at *38. In addition to the cases listed above, the Court has adjudicated standing
issues many times. See, e.g., Abraham v. WPX Production Productions, LLC, 184 F. Supp. 3d
1150, 1197 (D.N.M. 2016)(Browning, J.)(concluding that oil-well royalty owners had standing
to assert a breach of the implied duty to market under New Mexico and Colorado law); Northern
New Mexicans Protecting Land Water and Rights v. United States, 161 F. Supp. 3d 1020, 1042
(D.N.M. 2016)(Browning, J.)(concluding that an association lacked standing to sue on behalf of
its members, because the relief sought was damages); Jarita Mesa Livestock Grazing Ass’n v.
U.S. Forest Service, 140 F. Supp. 3d 1123, 1170-75 (D.N.M. 2015)(Browning, J.)(concluding
that livestock association whose members had ancestral ties to grazing land in Northern New
Mexico had standing to bring a NEPA claim); Alto Eldorado Partners v. City of Santa Fe, 2009
WL 1312856, at *21, 25 (D.N.M. March 11, 2009)(Browning, J.)(concluding that a developer
did not have standing to challenge a city ordinance, because the ordinance would only affect him
if he “lost his current permits,” which, at the time of the lawsuit, he had not lost)
LAW REGARDING MOOTNESS
Article III, Section 2 of the Constitution of the United States limits the federal courts’
jurisdiction to actual cases and controversies. See U.S. Const. art. III § 2. “Federal courts are
without authority to decide questions that cannot affect the rights of litigants in the case before
them.” Ford v. Sully, 773 F. Supp. 1457, 1464 (D. Kan. 1991)(O’Connor, C.J.)(citing North
Carolina v. Rice, 404 U.S. 244, 246 (1971). See Johansen v. City of Bartlesville, 862 F.2d 1423,

- 45 -

1426 (10th Cir. 1988); Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir. 1988)). “To qualify
as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.” Arizonians for Official English v. Ariz.,
520 U.S. 43, 67 (1997). See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1121 (10th Cir. 2010). Accordingly, if a case is moot, or becomes moot during any stage
of the case, the court does not have jurisdiction to hear the case. A case becomes moot “when
the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)(citing Powell v.
McCormack, 395 U.S. 486, 496 (1969)).
“Before deciding that there is no jurisdiction, the district court must look at the way the
complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution
and the laws of the United States.” Bell v. Hood, 327 U.S. 678, 682 (1946). Jurisdiction is not
dependent on whether the plaintiff will succeed in his cause of action; jurisdiction is determined
before the cause of action’s details, both in law and fact, are considered. See Bell v. Hood, 327
U.S. at 682.
The Tenth Circuit recognized a distinction between mootness and standing in Lucero v.
Bureau of Collection Recovery, Inc.:
Like Article III standing, mootness is oft-cited as a constitutional limitation on
federal court jurisdiction. E.g., Building & Constr. Dep’t v. Rockwell Int’l Corp.,
7 F.3d 1487, 1491 (10th Cir. 1993)(“Constitutional mootness doctrine is grounded
in the Article III requirement that federal courts only decide actual, ongoing cases
or controversies.”); see Matthew I. Hall, The Partially Prudential Doctrine of
Mootness, 77 Geo. Wash. L. Rev. 562, 571 (2009)(citing footnote 3 in Liner v.
Jafco, Inc., 375 U.S. 301 . . . (1964), as the first occasion in which the Supreme
Court expressly derived its lack of jurisdiction to review moot cases from Article
III). But although issues of mootness often bear resemblance to issues of
standing, their conceptual boundaries are not coterminous. See Friends of the
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Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-92 . . . (2000).
Indeed, the Supreme Court has historically recognized what are often called
“exceptions” to the general rule against consideration of moot cases, as where a
plaintiff’s status is “capable of repetition yet evading review,” S. Pac. Terminal
Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 . . . (1911), or where a
defendant has ceased the challenged action but it is likely the defendant will
“return to his old ways” -- the latter often referred to as the voluntary cessation
exception, United States v. W.T. Grant Co., 345 U.S. 629, 632 . . . (1953); see
also, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277 . . . (2000). These exceptions
do not extend to the standing inquiry, demonstrating the contours of Article III as
it distinctly pertains to mootness. Friends of the Earth, Inc., 528 U.S. at 191,
120 . . . .
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d at 1242-43.
A claim may become moot if “(i) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur, and (ii) interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation.” Cty. of L.A. v. Davis, 440 U.S.
625, 631 (1979). The burden of establishing mootness is a heavy one. See Cty. of L.A. v. Davis,
440 U.S. at 631. Courts are permitted to take into account the relative likelihood of the events
which a party asserts keep the dispute from becoming moot. See Golden v. Zwickler, 394 U.S.
103, 109 (1969)(“We think that under all the circumstances of the case the fact that it was most
unlikely that the Congressman would again be a candidate for Congress precluded a finding that
there was ‘sufficient immediacy and reality’ here.”).

A case can become moot based on

intervening events, such as settling the case, see U.S. Bancorp Mortgage Co. v. Bonner Mall
P’ship, 513 U.S. 18, 25 (1994)(“Where mootness results from settlement, the losing party has
voluntarily forfeited his legal remedy by the ordinary processes of appeal . . . .”), or becoming a
resident of the State whose residency laws one is challenging, see Sosna v. Iowa, 419 U.S. 393,
399 (1975)(“If appellant had sued only on her own behalf, both the fact that she now satisfies the
one-year residency requirement and the fact that she has obtained a divorce elsewhere would
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make this case moot and require dismissal.”). In comparison, while mootness, a statute of
limitations, or some other legal doctrine may eventually bar a suit, one cannot lose standing once
one has it. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 19092, (“Furthermore, if mootness were simply ‘standing set in a time frame,’ the exception to
mootness that arises when the defendant’s allegedly unlawful activity is ‘capable of repetition,
yet evading review,’ could not exist.”).
The Court has concluded that a due process claim is not moot where the plaintiff does not
receive the precise remedy he has requested. See Salazar v. City of Albuquerque, 776 F.
Supp. 2d 1217, 1235-36 (D.N.M. 2011)(Browning, J.)(“Salazar”). In Salazar, a city bus driver
brought a due process claim against the City of Albuquerque after being fired from his job. See
776 F. Supp. 2d at 1223. Although the employee was later reinstated, the Court determined that
his due process claim was not moot, because he had asked for more than just reinstatement; he
had also asked for punitive and back-pay damages. See 776 F. Supp. 2d at 1235-36. The Court
has also determined that a claim is not necessarily moot even when a state court has previously
dismissed the claim for lack of prosecution and for failure to appear, because there was still time
for the plaintiff to seek reconsideration of the decision or an appeal. See Nieto v. University of
New Mexico, 727 F. Supp. 2d 1176, 1191 (D.N.M. 2010)(Browning, J.).
LAW REGARDING JUDICIAL REVIEW OF AGENCY ACTION
Under the APA,
[a] person suffering legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a relevant statute, is entitled
to judicial review thereof. An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency or an officer or
employee thereof acted or failed to act in an official capacity or under color of
legal authority shall not be dismissed nor relief therein be denied on the ground
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that it is against the United States or that the United States is an indispensable
party. The United States may be named as a defendant in any such action, and a
judgment or decree may be entered against the United States: Provided, that any
mandatory or injunctive decree shall specify the Federal officer or officers (by
name or by title), and their successors in office, personally responsible for
compliance. Nothing herein (1) affects other limitations on judicial review or the
power or duty of the court to dismiss any action or deny relief on any other
appropriate legal or equitable ground; or (2) confers authority to grant relief if any
other statute that grants consent to suit expressly or impliedly forbids the relief
which is sought.
5 U.S.C. § 702. The APA states that district courts can:
(1)

compel agency action unlawfully withheld or unreasonably delayed; and

(2)
hold unlawful and set aside agency action, findings, and conclusions found
to be-(A)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
(B)
contrary to constitutional right, power, privilege, or
immunity;
(C)
in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(D)

without observance of procedure required by law;

(E)
unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F)
unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.
5 U.S.C. § 706.
Under Olenhouse, 42 F.3d at 1560, “[r]eviews of agency action in the district courts
[under the APA] must be processed as appeals. In such circumstances the district court should
govern itself by referring to the Federal Rules of Appellate Procedure.” 42 F.3d at 1580. See
WildEarth Guardians v. U.S. Forest Serv., 668 F. Supp. at 1323. “As a group, the devices
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appellate courts normally use are generally more consistent with the APA’s judicial review
scheme than the devices that trial courts generally use, which presume nothing about the case’s
merits and divide burdens of proof and production almost equally between the plaintiff and
defendant.” Northern New Mexicans Protecting Land and Water Rights v. United States, 2015
WL 8329509, at *9 (D.N.M. 2015)(Browning, J.).
1.

Reviewing Agency Factual Determinations.

Under the APA, a reviewing court must accept an agency’s factual determinations in
informal proceedings unless they are “arbitrary [or] capricious,” 5 U.S.C. § 706(2)(A), and its
factual determinations in formal proceedings unless they are “unsupported by substantial
evidence,” 5 U.S.C. § 706(2)(E). The APA’s two linguistic formulations amount to a single
substantive standard of review. See Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Govs.
of the Fed. Reserve Sys., 745 F.2d 677, 683-84 (D.C. Cir. 1984)(Scalia, J.)(explaining that, as to
factual findings, “there is no substantive difference between what [the arbitrary or capricious
standard] requires and what would be required by the substantial evidence test, since it is
impossible to conceive of a ‘nonarbitrary’ factual judgment supported only by evidence that is
not substantial in the APA sense” (emphasis in original)). See also id. at 684 (“[T]his does not
consign paragraph (E) of the APA’s judicial review section to pointlessness. The distinctive
function of paragraph (E) -- what it achieves that paragraph (A) does not -- is to require
substantial evidence to be found within the record of closed-record proceedings to which it
exclusively applies.” (emphasis in original)).
In reviewing agency action under the arbitrary-or-capricious standard, a court considers
the administrative record -- or at least those portions of the record that the parties provide -- and

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not materials outside of the record.

See 5 U.S.C. § 706 (“In making the foregoing

determinations, the court shall review the whole record or those parts of it cited by a party.”);
Fed. R. App. P. 16 (“The record on review or enforcement of an agency order consists of . . . the
order involved; . . . any findings or report on which it is based; and . . . the pleadings, evidence,
and other parts of the proceedings before the agency.”); Ass’n of Data Processing Serv. Orgs.,
Inc. v. Bd. of Govs. of the Fed. Reserve Sys., 745 F.2d at 684 (“[W]hether the administrator was
arbitrary must be determined on the basis of what he had before him when he acted.”). See also
Franklin Sav. Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th
Cir. 1991)(“[W]here Congress has provided for judicial review without setting forth . . .
procedures to be followed in conducting that review, the Supreme Court has advised such review
shall be confined to the administrative record and, in most cases, no de novo proceedings may be
had.”). Tenth Circuit precedent indicates, however, that the ordinary evidentiary rules regarding
judicial notice apply when a court reviews agency action. See New Mexico ex. rel. Richardson
v. Bureau of Land Mgmt., 565 F.3d 683, 702 n.21 (10th Cir. 2009)(citing Fed. R. Evid.
201(b))(“We take judicial notice of this document, which is included in the record before us in
[another case].”); id. at 702 n.22 (“We conclude that the occurrence of Falcon releases is not
subject to reasonable factual dispute and is capable of determination using sources whose
accuracy cannot reasonably be questioned, and we take judicial notice thereof.”). In contrast, the
United States Courts of Appeals for the Ninth and Eleventh Circuits have held that taking
judicial notice is inappropriate in APA reviews absent extraordinary circumstances or
inadvertent omission from the administrative record. See Compassion Over Killing v. U.S. Food

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& Drug Administration, 849 F.3d 849, 852 n.1 (9th Cir. 2017); National Min. Ass’n v. Secretary
U.S. Dep’t of Labor, 812 F.3d 843, 875 (11th Cir. 2016).
To fulfill its function under the APA, a reviewing court should engage in a “thorough,
probing, in-depth review” of the record before it when determining whether an agency’s decision
survives arbitrary-or-capricious review. Wyoming v. United States, 279 F.3d 1214, 1238 (10th
Cir. 2002)(citation omitted). The Tenth Circuit explains:
In determining whether the agency acted in an arbitrary and capricious manner,
we must ensure that the agency decision was based on a consideration of the
relevant factors and examine whether there has been a clear error of judgment.
We consider an agency decision arbitrary and capricious if the agency relied on
factors which Congress had not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency expertise.
Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999). Arbitrary-or-capricious
review requires a district court “to engage in a substantive review of the record to determine if
the agency considered relevant factors and articulated a reasoned basis for its conclusions,”
Olenhouse, 42 F.3d at 1580, but it is not to assess the wisdom or merits of the agency’s decision,
see Colo. Envtl. Coal. v. Dombeck, 185 F.3d at 1172. The agency must articulate the same
rationale for its findings and conclusions on appeal upon which it relied in its internal
proceedings. See SEC v. Chenery Corp., 318 U.S. 80 (1943). While the court may not supply a
reasoned basis for the agency’s action that the agency does not give itself, the court should
“uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”
Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)(internal
citations omitted).

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2.

Reviewing Agency Legal Interpretations.

In promulgating and enforcing regulations, agencies must interpret federal statutes, their
own regulations, and the Constitution, and Courts reviewing those interpretations apply three
different deference standards, depending on the law at issue. First, the federal judiciary accords
considerable deference to an agency’s interpretation of a statute that Congress has tasked it with
enforcing. See United States v. Undetermined Quantities of Bottles of an Article of Veterinary
Drug, 22 F.3d 235, 238 (10th Cir. 1994). This deference is known as Chevron deference, named
after the supposedly seminal case, Chevron, U.S.A., Inc. v. Natural Resource Defense Council,
Inc., 467 U.S. 837 (1984)(“Chevron”). 14 Chevron deference is a two-step process15 that first
asks whether the statutory provision in question is clear and, if it is not, then asks whether the
agency’s interpretation of the unclear statute is reasonable. As the Tenth Circuit has explained,
14

The case itself is unremarkable, uninstructive, does not explicitly outline the nowfamiliar two-step process of applying Chevron deference, and does not appear to have been
intended to become a “big name” case at all. Its author, the Honorable John Paul Stevens,
former Associate Justice of the Supreme Court, insists that the case was never intended to create
a regime of deference, and, in fact, Justice Stevens became one of Chevron deference’s greatest
detractors in subsequent years. See generally Charles Evans Hughes, Justice Stevens and the
Chevron Puzzle, 106 Nw. U. L. Rev. 551 (2012).
15

There is, additionally, a threshold step -- the so-called step zero -- which asks whether
Chevron deference applies to the agency decision at all. See Cass R. Sunstein, Chrevron Step
Zero, 92 Va. L. Rev. 187 (2006). Step zero asks: (i) whether the agency is Chevron-qualified,
meaning whether the agency involved is the agency charged with administering the statute -- for
example, the EPA administers a number of statutes, among them the Clean Air Act, Pub. L. No.
88-206, 77 Stat. 392; (ii) whether the decision fits within the category of interpretations afforded
the deference -- interpretation of contracts, the Constitution, and the agency’s own regulations
are not afforded Chevron deference, see, e.g., U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th
Cir. 1999)(“[A]n unconstitutional interpretation is not entitled to Chevron deference.”); and
(iii) whether Congress intended the agency to “speak with the force of law” in making the
decision in question, United States v. Mead Corp., 533 U.S. 218, 229 (2001) -- opinion letters by
the agency, for example, do not speak with the force of law and are thus not entitled to Chevron
deference, see Christensen v. Harris Cty., 529 U.S. 576 (2000). An affirmative answer to all
three inquiries results in the agency’s decision passing step zero.
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we must be guided by the directives regarding judicial review of administrative
agency interpretations of their organic statutes laid down by the Supreme Court in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
. . . (1984). Those directives require that we first determine whether Congress has
directly spoken to the precise question at issue. If the congressional intent is
clear, we must give effect to that intent. If the statute is silent or ambiguous on
that specific issue, we must determine whether the agency’s answer is based on a
permissible construction of the statute.
United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug, 22 F.3d at
238 (citation omitted).
Chevron’s second step is all but toothless, because if the agency’s decision makes it to
step two, it is upheld almost without exception.

See Ronald M. Levin, The Anatomy of

Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1261 (1997)(“[T]he Court has
never once struck down an agency’s interpretation by relying squarely on the second Chevron
step.”

(footnote omitted)); Jason J. Czarnezki, An Empirical Investigation of Judicial

Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, 79
U. Colo. L. Rev. 767, 775 (2008)(“Due to the difficulty in defining step two, courts rarely strike
down agency action under step two, and the Supreme Court has done so arguably only twice.”).
Courts essentially never conclude that an agency’s interpretation of an unclear statute is
unreasonable.
Chevron’s first step, in contrast, has bite, but there is substantial disagreement what it
means. In an earlier case, the Court noted the varying approaches that different Supreme Court
of the United States Justices have taken in applying Chevron deference:
The Court notices a parallel between the doctrine of constitutional avoidance and
the Chevron doctrine. Those Justices, such as Justice Scalia, who are most loyal
to the doctrines and the most likely to apply them, are also the most likely to keep
the “steps” of the doctrines separate: first, determining whether the statute is
ambiguous; and, only then, assessing the merits of various permissible
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interpretations from the first step. These Justices are also the most likely to find
that the statute is unambiguous, thus obviating the need to apply the second step
of each doctrine. Those Justices more likely to find ambiguity in statutes are
more likely to eschew applying the doctrines in the first place, out of their distaste
for their second steps -- showing heavy deference to agencies for Chevron
doctrine, and upholding facially overbroad statutes, for constitutional avoidance.
Griffin v. Bryant, 30 F. Supp. 3d 1139, 1193 n.23 (D.N.M.2014)(Browning, J.). A number of
policy considerations animate Chevron deference, among them: (i) statutory interpretation, i.e.,
that Congress, by passing extremely open-ended and vague organic statutes, grants discretionary
power to the agencies to fill in the statutory gaps; (ii) institutional competency, i.e., that agencies
are more competent than the courts at filling out the substantive law in their field; (iii) political
accountability, i.e., that agencies, as executive bodies which the President of the United States of
America heads, can be held politically accountable for their interpretations; and (iv) efficiency,
i.e., that numerous, subject-matter specialized agencies can more efficiently promulgate the
massive amount of interpretation required to maintain the modern regulatory state -- found in the
Code of Federal Regulations and other places -- than a unified but Circuit-fragmented federal
judiciary can.
Second, when agencies interpret their own regulations -- to, for example, adjudicate
whether a regulated party was in compliance with them -- courts accord agencies what is known
as Auer or Seminole Rock deference. See Auer v. Robbins, 519 U.S. 452 (1997)(“Auer”);
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). This deference is applied in the
same manner as Chevron deference and is substantively identical. There would be little reason
to have a separate name for this doctrine, except that its logical underpinnings are much shakier,
and its future is, accordingly, more uncertain. Justice Scalia, after years of applying the doctrine
followed by years of questioning its soundness, finally denounced Auer deference in 2013 in his
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dissent in Decker v. Northwest Environmental Defense Center, 568 U.S. 597 (2013). The Court
cannot describe the reasons for Justice Scalia’s abandonment of the doctrine better than the
Justice himself:
For decades, and for no good reason, we have been giving agencies the
authority to say what their rules mean, under the harmless-sounding banner of
“defer[ring] to an agency’s interpretation of its own regulations.” Talk America,
Inc. v. Michigan Bell Telephone Co., [564] U.S. [50], 131 S. Ct. 2254, 2265
. . . (2011) (Scalia, J., concurring). This is generally called Seminole Rock or Auer
deference.
....
The canonical formulation of Auer deference is that we will enforce an
agency’s interpretation of its own rules unless that interpretation is “plainly
erroneous or inconsistent with the regulation.” But of course whenever the
agency’s interpretation of the regulation is different from the fairest reading, it is
in that sense “inconsistent” with the regulation. Obviously, that is not enough, or
there would be nothing for Auer to do. In practice, Auer deference is Chevron
deference applied to regulations rather than statutes. The agency’s interpretation
will be accepted if, though not the fairest reading of the regulation, it is a
plausible reading -- within the scope of the ambiguity that the regulation contains.
Our cases have not put forward a persuasive justification for Auer
deference. The first case to apply it, Seminole Rock, offered no justification
whatever -- just the ipse dixit that “the administrative interpretation . . . becomes
of controlling weight unless it is plainly erroneous or inconsistent with the
regulation.” Our later cases provide two principal explanations, neither of which
has much to be said for it. First, some cases say that the agency, as the drafter of
the rule, will have some special insight into its intent when enacting it. The
implied premise of this argument -- that what we are looking for is the agency’s
intent in adopting the rule -- is false. There is true of regulations what is true of
statutes. As Justice Holmes put it: “[w]e do not inquire what the legislature
meant; we ask only what the statute means.” Whether governing rules are made
by the national legislature or an administrative agency, we are bound by what they
say, not by the unexpressed intention of those who made them.
The other rationale our cases provide is that the agency possesses special
expertise in administering its “‘complex and highly technical regulatory
program.’” That is true enough, and it leads to the conclusion that agencies and
not courts should make regulations. But it has nothing to do with who should
interpret regulations -- unless one believes that the purpose of interpretation is to
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make the regulatory program work in a fashion that the current leadership of the
agency deems effective. Making regulatory programs effective is the purpose of
rulemaking, in which the agency uses its “special expertise” to formulate the best
rule. But the purpose of interpretation is to determine the fair meaning of the
rule -- to “say what the law is.” Not to make policy, but to determine what policy
has been made and promulgated by the agency, to which the public owes
obedience. Indeed, since the leadership of agencies (and hence the policy
preferences of agencies) changes with Presidential administrations, an agency
head can only be sure that the application of his “special expertise” to the issue
addressed by a regulation will be given effect if we adhere to predictable
principles of textual interpretation rather than defer to the “special expertise” of
his successors. If we take agency enactments as written, the Executive has a
stable background against which to write its rules and achieve the policy ends it
thinks best.
Another conceivable justification for Auer deference, though not one that
is to be found in our cases, is this: If it is reasonable to defer to agencies regarding
the meaning of statutes that Congress enacted, as we do per Chevron, it is a
fortiori reasonable to defer to them regarding the meaning of regulations that they
themselves crafted. To give an agency less control over the meaning of its own
regulations than it has over the meaning of a congressionally enacted statute
seems quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that
when Congress gives an agency authority to administer a statute, including
authority to issue interpretive regulations, it implicitly accords the agency a
degree of discretion, which the courts must respect, regarding the meaning of the
statute. While the implication of an agency power to clarify the statute is
reasonable enough, there is surely no congressional implication that the agency
can resolve ambiguities in its own regulations. For that would violate a
fundamental principle of separation of powers -- that the power to write a law and
the power to interpret it cannot rest in the same hands. “When the legislative and
executive powers are united in the same person . . . there can be no liberty;
because apprehensions may arise, lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of
the Laws bk. XI, at 151-152 (O. Piest ed., T. Nugent transl. 1949). Congress
cannot enlarge its own power through Chevron -- whatever it leaves vague in the
statute will be worked out by someone else. Chevron represents a presumption
about who, as between the Executive and the Judiciary, that someone else will
be. (The Executive, by the way -- the competing political branch -- is the less
congenial repository of the power as far as Congress is concerned.) So
Congress’s incentive is to speak as clearly as possible on the matters it regards as
important.

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But when an agency interprets its own rules -- that is something else.
Then the power to prescribe is augmented by the power to interpret; and the
incentive is to speak vaguely and broadly, so as to retain a “flexibility” that will
enable “clarification” with retroactive effect. “It is perfectly understandable” for
an agency to “issue vague regulations” if doing so will “maximiz[e] agency
power.” Combining the power to prescribe with the power to interpret is not a
new evil: Blackstone condemned the practice of resolving doubts about “the
construction of the Roman laws” by “stat[ing] the case to the emperor in writing,
and tak[ing] his opinion upon it.” 1 Wm. Blackstone, Commentaries on the Laws
of England 58 (1765). And our Constitution did not mirror the British practice of
using the House of Lords as a court of last resort, due in part to the fear that he
who has “agency in passing bad laws” might operate in the “same spirit” in their
interpretation. The Federalist No. 81, at 543-544 (Alexander Hamilton)(J. Cooke
ed. 1961). Auer deference encourages agencies to be “vague in framing
regulations, with the plan of issuing ‘interpretations’ to create the intended new
law without observance of notice and comment procedures.” Auer is not a logical
corollary to Chevron but a dangerous permission slip for the arrogation of power.
It is true enough that Auer deference has the same beneficial pragmatic
effect as Chevron deference: The country need not endure the uncertainty
produced by divergent views of numerous district courts and courts of appeals as
to what is the fairest reading of the regulation, until a definitive answer is finally
provided, years later, by this Court. The agency’s view can be relied upon, unless
it is, so to speak, beyond the pale. But the duration of the uncertainty produced
by a vague regulation need not be as long as the uncertainty produced by a vague
statute. For as soon as an interpretation uncongenial to the agency is pronounced
by a district court, the agency can begin the process of amending the regulation to
make its meaning entirely clear. The circumstances of this case demonstrate the
point. While these cases were being briefed before us, EPA issued a rule
designed to respond to the Court of Appeals judgment we are reviewing. It did so
(by the standards of such things) relatively quickly: The decision below was
handed down in May 2011, and in December 2012 the EPA published an
amended rule setting forth in unmistakable terms the position it argues here. And
there is another respect in which a lack of Chevron-type deference has less severe
pragmatic consequences for rules than for statutes. In many cases, when an
agency believes that its rule permits conduct that the text arguably forbids, it can
simply exercise its discretion not to prosecute. That is not possible, of course,
when, as here, a party harmed by the violation has standing to compel
enforcement.
In any case, however great may be the efficiency gains derived from Auer
deference, beneficial effect cannot justify a rule that not only has no principled
basis but contravenes one of the great rules of separation of powers: He who
writes a law must not adjudge its violation.
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Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 616-21 (Scalia, J., dissenting)(alterations in
original)(citations omitted). Although the Court shares Justice Scalia’s concerns about Auer
deference, it is, for the time being, the law of the land, and, as a federal district court, the Court
must apply it.16
Last, courts afford agencies no deference in interpreting the Constitution. See U.S. West,
Inc. v. FCC, 182 F.3d 1224, 1231 (10th Cir. 1999)(“[A]n unconstitutional interpretation is not
entitled to Chevron deference. . . . [D]eference to an agency interpretation is inappropriate not
only when it is conclusively unconstitutional, but also when it raises serious constitutional
questions.” (citing, e.g., Rust v. Sullivan, 500 U.S. 173, 190-91 (1991))). Courts have superior
competence in interpreting -- and constitutionally vested authority and responsibility to
interpret -- the Constitution’s content. The presence of a constitutional claim does not take a
court’s review outside of the APA, however -- § 706(2)(B) specifically contemplates
adjudication of constitutional issues -- and courts must still respect agency fact-finding and the
administrative record when reviewing agency action for constitutional infirmities; they just
should not defer to the agency on issues of substantive legal interpretation. See, e.g., Robbins v.
U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir. 2006)(“We review Robbins’
[constitutional] due process claim against the [agency] under the framework set forth in the
APA.”).

16

Clarence Thomas, Associate Justice of the Supreme Court, and Neil Gorsuch, Associate
Justice of the Supreme Court, have recently echoed Justice Scalia’s concerns with Auer
deference and have called on the Supreme Court to reconsider and overrule Auer. See Garco
Construction, Inc. v. Speer, 138 S. Ct. 1052, 1052-53 (2018)(dissenting from denial of
certiorari).
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3.

Waiving Sovereign Immunity.

The APA waives sovereign immunity with respect to non-monetary claims. See 5 U.S.C.
§ 702. The statute provides:
An action in a court of the United States seeking relief other than money damages
and stating a claim that an agency or an officer or employee thereof acted or
failed to act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the United
States or that the United States is an indispensable party. The United States may
be named as a defendant in any such action, and a judgment or decree may be
entered against the United States:
5 U.S.C. § 702. Claims for money damages seek monetary relief “to substitute for a suffered
loss.” Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1298
(10th Cir. 2009)(emphasis in original). Claims that do not seek monetary relief or that seek
“specific remedies that have the effect of compelling monetary relief” are not claims for
monetary damages. Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d
at 1298. To determine whether a claim seeks monetary relief, a court must “look beyond the
face of the complaint” and assess the plaintiff’s prime object or essential purpose; “‘[a]
plaintiff’s prime objective or essential purpose is monetary unless the non-monetary relief sought
has significant prospective effect or considerable value apart from the claim for monetary
relief.’” Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d at 1296
(quoting Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997)).
The APA’s sovereign immunity waiver for claims “seeking relief other than money
damages” does not apply, however, “if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.” 5 U.S.C. § 702. The Tucker Act, 28 U.S.C.
§§ 1346, 1491, permits district courts to hear some claims against the United States, but it also

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states that “district courts shall not have jurisdiction of any civil action or claim against the
United States founded upon any express or implied contract with the United States.” 28 U.S.C.
§ 1346(a)(2). It follows that the APA does not waive the United States’ sovereign immunity as
to contract claims even when those claims seek relief other than money damages, such as
declaratory or injunctive relief. See Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban
Dev., 554 F.3d at 1295. Consequently, two questions determine whether the APA waives the
United States’ sovereign immunity as to a particular claim: “First, does [the] claim seek ‘relief
other than money damages,’ such that the APA’s general waiver of sovereign immunity is even
implicated? Second, does the Tucker Act expressly or impliedly forbid the relief that Normandy
seeks, such that the APA’s waiver does not apply?” Normandy Apartments, Ltd. v. U.S. Dep’t
of Hous. & Urban Dev., 554 F.3d at 1296 (quoting 5 U.S.C. § 702).
LAW REGARDING PERMANENT INJUNCTION
To attain a permanent injunction, a plaintiff must demonstrate:
(i) that it has suffered an irreparable injury; (ii) that remedies available at law,
such as monetary damages, are inadequate to compensate for that injury; (iii) that,
considering the balance of hardships between the plaintiff and the defendant, a
remedy in equity is warranted; and (iv) that the public interest would not be
disserved by a permanent injunction.
eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The Tenth Circuit has formulated
that test as: “(1) actual success on the merits; (2) irreparable harm unless the injunction is issued;
(3) the threatened injury outweighs the harm that the injunction may cause the opposing party;
and (4) the injunction if issues, will not adversely affect the public interest.”

Southwest

Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009). See Klein-Becker USA,
LLC v. Englert, 711 F.3d 1153, 1164 (10th Cir. 2013).

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“The decision to grant or deny

permanent injunctive relief is an act of equitable discretion by the district court, reviewable on
appeal for abuse of discretion.”

eBay, Inc. v. MercExchange, LLC, 547 U.S. at 391. See

Southwest Stainless, LP v. Sappington, 582 F.3d at 1191 (“The district court’s discretion in this
context is necessarily broad and a strong showing of abuse must be made to reverse it.”). “An
injunction is an extraordinary remedy to prevent future violations, and should be used sparingly.”
Copar Pumice Co., Inc. v. Morris, No. 07-0079, 2009 WL 5201799, at *15 (D.N.M. October 23,
2009)(Browning, J.)(citing Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 144
F.3d 1513, 1522 (10th Cir. 1997)).
“A district court may find irreparable harm ‘based upon evidence suggesting that it is
impossible to precisely calculate the amount of damage plaintiff will suffer.’”

Southwest

Stainless, LP v. Sappington, 582 F.3d at 1191 (quoting Equifax Servs., Inc. v. Hitz, 905
F.2d 1355, 1361 (10th Cir. 1990)). In Copar Pumice Co., Inc. v. Morris, for example, the Court
denied a permanent injunction, because the plaintiff did not demonstrate that damages could not
compensate the Fourth-Amendment search injury it had suffered. See 2009 WL 5201799, at
*15. The Court further concluded that the plaintiff had “shown few, if any, damages other than
attorney’s fees and costs,” and, accordingly, the extraordinary remedy sought -- a permanent
injunction -- was inappropriate. 2009 WL 5201799, at *15.
Injunctive relief requested is subject to Article III mootness. See WildEarth Guardians v.
Public Service Co. of Colorado, 690 F.3d 1174, 1190-91 (10th Cir. 2012); State of N.N. ex rel.
New Mexico State Highway Dept. v. Goldschmidt, 629 F.2d 665, 669 (10th Cir. 1980). A case
becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979).

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Like Article III standing, mootness is oft-cited as a constitutional limitation on
federal court jurisdiction. E.g., Building & Constr. Dep’t v. Rockwell Int’l Corp.,
7 F.3d 1487, 1491 (10th Cir. 1993)(“Constitutional mootness doctrine is grounded
in the Article III requirement that federal courts only decide actual, ongoing cases
or controversies). . . . But although issues of mootness often bear resemblance to
issues of standing, their conceptual boundaries are not coterminous. . . . [T]he
Supreme Court has historically recognized what are often called ‘exceptions’ to
the general rule against consideration of moot cases, as where a plaintiff’s status
is ‘capable of repetition yet evading review,’ S. Pac. Terminal Co. v. Interstate
Commerce Comm’n, 219 U.S. 498 (1911), or where a defendant has ceased the
challenged action but it is likely the defendant will ‘return to his old ways’ -- the
latter often referred to as the voluntary cessation exception, United States v. W.T.
Grant Co., 345 U.S. 498, 515 (1911).
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th Cir. 2011). When
injunctive relief does not redress plaintiffs’ particular injuries, the injunctive relief requested is
rendered moot. See WildEarth Guardians v. Public Service Co., 690 F.3d at 1191 (citing United
States v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007)). Similarly, if the injunction would
have no present-day effect, the injunctive relief request is also rendered moot. See Utah Animal
Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir. 2004)(“The alleged
violation took place in 2001, the Olympics have come and gone, and neither temporary
restraining order, preliminary injunction, nor permanent injunction could have any present-day
effect.”).
As already noted, mootness is subject to the voluntary-cessation exception. See Brown v.
Buhman, 822 F.3d 1151, 1166 (10th Cir. 2016). Under that exception, “voluntary cessation of
challenged conduct does not ordinarily render a case moot because a dismissal for mootness
would permit a resumption of the challenged conduct as soon as the case is dismissed.” Brown
v. Buhman, 822 F.3d at 1166. “This rule is designed to prevent gamesmanship. If voluntary
cessation automatically mooted a case, ‘a defendant could engage in unlawful conduct, stop

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when sued to have the case declared moot, then pick up where he left off, repeating this cycle
until he achieves his unlawful ends.” Brown v. Buhman, 822 F.3d at 1166 (quoting Already,
LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

Nevertheless, a defendant’s voluntary cessation

may render a case moot, if “the defendant carries the formidable burden of showing that it is
absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”
Brown v. Buhman, 822 F.3d at 1166 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013)).
LAW REGARDING NEPA
NEPA requires federal agencies to
include in every recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human
environment, a detailed statement by the responsible official on -(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-term
productivity, and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
42 U.S.C. § 4332(C). “Although labeled an ‘environmental’ statute, NEPA is in essence a
procedural statute; it does ‘not require agencies to elevate environmental concerns over other
appropriate considerations.’” Park Cty. Res. Council, Inc. v. U.S. Dep’t of Agric., 817 F.2d 609,
620 (10th Cir. 1987)(emphasis in original)(quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def.

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Council, Inc., 462 U.S. 87, 97 (1983)).

NEPA’s procedural requirements exist to prevent

“precipitous federal decision making at the agency level which may fail to adequately consider
the environmental ramifications of agency actions.” Park Cty. Res. Council, Inc. v. U.S. Dep’t
of Agric., 817 F.2d at 620. “NEPA merely prohibits uninformed -- rather than unwise -- agency
action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989)(Stevens, J.).
Regulations provide guidance on NEPA’s implementation. See 40 C.F.R. §§ 1500-08.
Those regulations are entitled to substantial deference.

See Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 355-56 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
CEQ regulations set out three ways that agencies can comply with § 4332(C)’s “detailed
statement” requirement for “major Federal actions significantly affecting the quality of the
human environment.”

42 U.S.C. § 4332(C).

First, an agency can satisfy that statutory

requirement by preparing a detailed statement, called an EIS, that conforms to regulations
regarding its format, content, and methodology. See 40 C.F.R. § 1502, 1508.11.
Second, if an agency is unsure whether an EIS is required for a proposed action, i.e.,
whether the action qualifies as a “major Federal action[] significantly affecting the quality of the
human environment,” 42 U.S.C. § 4332(C), the agency may prepare an EA, see 40 C.F.R.
§§ 1503(a), 1501.4(b). An EA “provide[s] sufficient evidence and analysis for determining
whether to prepare” an EIS or, alternatively, “a finding of no significant impact,” 40 C.F.R.
§ 1508.9(a)(1), which is “a document . . . briefly presenting the reasons why an action . . . will
not have a significant effect on the human environment [such that an EIS] therefore will not be
prepared,” 40 C.F.R. § 1508.13. See 40 C.F.R. § 1502.2 (stating that, “[a]s in a finding of no
significant impact,” in an EIS’ treatment of “other than significant issues[,] . . . there should be

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only enough discussion to show why more study is not warranted”). EAs also facilitate the
preparation of an EIS when one is necessary, and they help agencies comply with NEPA when
an EIS is not necessary. See 40 C.F.R. § 1508.9(a)(2)-(3). An EA needs to include “brief
discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(E),
and] of the environmental impacts of the proposed action and alternatives.”

40 C.F.R.

§ 1508.9(b). Section 4332(E) requires agencies to “study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(E).
Third, an agency can determine that an EIS is not required without needing to prepare an
EA when the proposed action falls within a categorical exclusion (“CE”).

See 40 C.F.R.

§ 1508.4. A CE is “a category of actions which do not individually or cumulatively have a
significant effect on the human environment and which have been found to have no such effect
in [NEPA] procedures adopted by a Federal agency.” 40 C.F.R. § 1508.4. See Utah Envtl. Cong.
v. Russell, 518 F.3d 817, 821 (10th Cir. 2008); WildEarth Guardians v. U.S. Forest Serv., 668 F.
Supp. 2d at 1321-22.
LAW REGARDING THE NHPA
The NHPA “requires each federal agency to take responsibility for the impact that its
activities may have upon historic resources, and establishes the Advisory Council on Historic
Preservation . . . to administer the Act.” Nat’l Mining Ass’n v. Fowler, 324 F.3d 752, 755 (D.C.
Cir. 2003)(internal quotation marks omitted). Like NEPA, the NHPA is a procedural statute, and
not a substantive one. See Friends Of The Atglen-Susquehanna Trail v. Surface Transp. Bd., 252
F.3d 246, 252 (3d Cir. 2001). In general, the NHPA requires that a federal agency take into

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account any adverse effects on historical or culturally significant sites before taking action that
might harm such sites. See Friends Of The Atglen-Susquehanna Trail v. Surface Transp. Bd.,
252 F.3d at 252; Pueblo of Sandia v. United States, 50 F.3d 856, 859 (10th Cir. 1995). To
comply with this requirement, federal agencies must engage in consultation with parties such as
the SHPO and any potentially affected Indian Tribes -- through a process referred to as “Section
106 consultation” -- to determine whether historic properties or traditional cultural properties
exist in the area of the planned activity.
Under § 106 of the NHPA, the Secretary of the Interior must consult with the SHPO on
“federal undertakings” that may affect historic properties. The Department of the Interior must
identify the historic properties that the undertaking might affect, assess the property’s historical
significance, determine if there will be an adverse effect to the property, consider ways to reduce
or avoid such effects, and provide an opportunity for the Advisory Council on Historic
Preservation to review and comment on the undertaking.

This process should include

“background research, consultation, oral history interviews, sample field investigations, and field
surveys.” 36 C.F.R. § 800.4.
An Indian Tribe may assume all or part of the SHPO’s functions with regard to Tribal
lands if, among other things, the Tribe designates a Tribal preservation official to administer the
program.

In such cases, the Tribal Historic Preservation Officer (“THPO”) is the official

representative for purposes of § 106 consultation. 36 C.F.R. §§ 800.2(c)(2)(i)(A), 800.3(c)(1).
Consultation with an Indian Tribe must recognize the government-to-government relationship
between the United States and the Tribe, and the consultation should be conducted in a manner
“sensitive to the concerns and needs of the Indian tribe.”

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36 C.F.R. § 800.2(c)(2)(ii).

Consultation should provide the Tribe with “a reasonable opportunity to identify its concerns
about historic properties, advise on the identification and evaluation of historic properties,
including those of traditional religious and cultural importance, articulate its views on the
undertaking’s effects on such properties, and participate in the resolution of adverse effects.” 36
C.F.R. § 800.2(c)(2)(ii).

Tribal consultation should be conducted concurrently with NEPA

analyses, as historic and cultural resources are expressly included among the factors to be
considered in an EIS. See 36 C.F.R. § 800.8.
ANALYSIS
The Court concludes that the Plaintiffs have standing, because they have shown an
“alleged increased environmental risk” and an aesthetic injury, which are constitutionally
cognizable injuries, Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir.
1996); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63 (1992)(“Lujan”), that are fairly
traceable to the “agency’s alleged failure to follow the National Environmental Policy Act’s
procedures,” Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 452, and which a
favorable ruling could likely redress. The Plaintiffs are also challenging final agency action
within the APA’s meaning for most, but not all, of the relevant APDs. The Court also concludes
that the Plaintiffs’ claims are not moot, except as to the challenged wells which have been
permanently abandoned, because only permanent abandonment makes it “absolutely clear that
the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of the Earth,
Inc. v Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000)(internal
quotations omitted).

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The BLM did not violate NEPA, because the BLM appropriately analyzed the impacts of
horizontal drilling and hydraulic fracturing, and “any difference in environmental impacts
between the new technology and the technology that the 2003 RMP/EIS analyzed are
insignificant,” Dine, 2015 WL 4997207, at *45. The BLM complied with NEPA’s public
involvement requirements, because it posted information about its proposed wells on its public
website and invited the public to meetings about proposed wells. Although there was a delay in
furnishing final EAs to the public, such delay did not violate NEPA, as the BLM made those
EAs available promptly on request. The BLM also did not violate the NHPA, because it defined
an APE for each well, considered the effects on historic sites within that APE, and made
determinations of no effect, no adverse effect, and adverse effect, as appropriate. Because Chaco
Park and its satellites are outside those wells’ APEs, the BLM was not required to consider the
indirect effects the wells would have on Chaco Park and its satellites. The APEs drawn for those
wells did not violate the NHPA by excluding Chaco Park and its satellites, because the BLM
followed the 2004 and 2014 protocols in drawing those APEs. Finally, if the Court were to
conclude that the BLM had violated NEPA or the NHPA, vacatur with remand would be the
proper remedy for the NEPA violation, but remand without vacatur would be the proper remedy
for the NHPA violation. The balance of harms favors vacatur for a potential NEPA violation,
but not for the aesthetic NHPA violation. Accordingly, vacatur is proper for a NEPA violation,
but not the NHPA violation.

A permanent injunction would be improper, because the

presumption favors vacatur and, in this case, vacatur more properly addresses the harm.

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I.

THE PLAINTIFFS HAVE STANDING TO PURSUE THEIR NEPA AND NHPA
CLAIMS.
The Court concludes that the Plaintiffs have standing to pursue both their NEPA and

NHPA claims. The “irreducible constitutional minimum of standing contains three elements.”
Lujan, 504 U.S. at 560. The first is a concrete and particularized injury, which is “actual or
imminent,” and not “conjectural or hypothetical.” Lujan, 504 U.S. at 560. “[A] plaintiff claiming
injury from environmental damage must use the area affected by the challenged activity and not
an area roughly in the vicinity of it.” Lujan, 504 U.S. at 555-56. “While generalized harm to the
forest or the environment will not alone support standing, if that harm affects the recreational or
even the mere esthetic interests of the plaintiff, that will suffice.” Summers v. Earth Island
Institute, 555 U.S. 488, 494 (2009). That a plaintiff “had visited the areas of the projects before
the projects commenced proves nothing.” Lujan, 504 U.S. at 564 (internal quotation marks
omitted). Professing an intent “to return to the places they had visited before . . . is simply not
enough. Such ‘some day’ intentions -- without any description of concrete plans, or indeed even
any specification of when the some day will be -- do not support a finding of the ‘actual or
imminent’ injury that our cases require.” Lujan, 504 U.S. at 564 (emphasis in original).
The Tenth Circuit has held that, “under the National Environmental Policy Act, an injury
of alleged increased environmental risks due to an agency’s uninformed decisionmaking may be
the foundation for injury in fact under Article III.” Committee to Save the Rio Hondo v. Lucero,
102 F.3d at 449. “[A] plaintiff must not only show that the agency’s disregard of a procedural
requirement results in an increased risk of environmental harm, but a plaintiff must also show the
increased risk is to the litigant’s concrete and particularized interests.” Committee to Save the
Rio Hondo v. Lucero, 102 F.3d at 449. “To demonstrate that the increased risk of harm injures
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the plaintiff’s concrete interests, the litigant must establish either its ‘geographical nexus’ to, or
actual use of the site where the agency will take or has taken action such that it may be expected
to suffer the environmental consequences of the action.” Committee to Save the Rio Hondo v.
Lucero, 102 F.3d at 449.
Ultimately then, the injury in fact prong of the standing test of Article III breaks
down into two parts: (1) the litigant must show that in making its decision without
following the National Environmental Policy Act’s Procedures, the agency
created an increased risk of actual, threatened, or imminent environmental harm;
and (2) the litigant must show that the increased risk of environmental harm
injures its concrete interests by demonstrating either its geographical nexus to, or
actual use of the site of the agency action.
Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 449.
Second, the injury must be “fairly . . . trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third party not before the
court.” Lujan, 504 U.S. at 560 (alterations in original). “[O]nce the plaintiff has established the
likelihood of the increased risk for purposes of injury in fact, to establish causation . . . the
plaintiff need only trace the risk of harm to the agency’s alleged failure to follow the National
Environmental Policy Act’s procedures.” Committee to Save the Rio Hondo v. Lucero, 102 F.3d
at 452.
Third, “it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotations omitted). Under
NEPA, “a plaintiff need not establish that the ultimate agency decision would change upon
National Environmental Policy Act compliance. Rather, the [plaintiff] must establish . . . that its
injury would be redressed by a favorable decision requiring the [agency] to comply with
National Environmental Policy Act[] procedures.” Committee to Save the Rio Hondo v. Lucero,

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102 F.3d at 452 (alterations added). “The party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S. at 561.
Here, the Plaintiffs have standing to pursue their NEPA claim. “[A]n association has
standing to bring suit on behalf of its members when: (a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”

Hunt v. Washington State Apple

Advertising Com’n, 432 U.S. 333, 343 (1977). First, the interests that the plaintiff organizations
seek to protect are clearly germane to the organizations’ purposes. Diné CARE’s stated goal is
“to protect all life in its ancestral homeland by empowering local and traditional people to
organize, speak out, and assure conservation and stewardship of the environment through civic
involvement . . . and oversight of government agencies’ compliance with all applicable
environmental laws.” Dine, 2015 WL 4997207, at *2. San Juan Alliance is an organization
dedicated to social, economic, and environmental justice in the San Juan Basin. See Dine, 2015
WL 4997207, at *2. WildEarth Guardians’ mission is “to protect and restore the wildlife, wild
places, wild rivers, and the health of the American West.” Nichols Decl. ¶ 2, at 2. The Natural
Resources Defense Council’s mission is “to safeguard the Earth; its people, its plants and
animals, and the natural systems on which all life depends.” Trujillo Decl. ¶ 6, at 2. Protecting
Chaco Park and the Chaco Canyon area/region from damaging oil and gas operations “is
paradigmatic” of the organization’s efforts “to defend endangered wild places and natural
habitats.” Trujillo Decl. ¶ 7, at 2. The organizations’ interests in this suit are therefore “germane

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to the organization[s’] purpose[s].” Hunt v. Washington State Apple Advertising Com’n, 432
U.S. at 343 (alterations added).
Second, “neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Com’n, 432
U.S. at 343. The parties do not contest this point, and the Court sees no reason why individual
members would need to participate in this suit. The crux of the standing issue is thus whether
the plaintiff organizations’ members “would otherwise have standing to sue in their own right.”
Hunt v. Washington State Apple Advertising Com’n, 432 U.S. at 343.
A.

THE PLAINTIFFS HAVE SHOWN AN INJURY IN FACT.

First, the Plaintiffs have shown that, “in making its decision without following the
National Environmental Policy Act’s Procedures, the agency created an increased risk of actual,
threatened, or imminent environmental harm.” Committee to Save the Rio Hondo v. Lucero, 102
F.3d at 449. Here, the agency decision that the Plaintiffs challenge under NEPA is the “BLM’s
ongoing approval of Mancos Shale drilling permits.” Diné Brief at 25. Eisenfeld asserts that the
BLM’s approval of these APDs “threatens to irreparably harm [his] personal and professional
interest in an intact Chacoan landscape . . . by impacting important environmental (air, water,
treasured landscapes), historical, and cultural resources.” Eisenfeld Decl. ¶ 9, at 5 (alteration
added). Eisenfeld also alleges that the BLM has allowed “APD proponents to flare natural gas in
the greater Chaco area when drilling for oil.” Eisenfeld Decl. ¶ 13, at 6. According to Eisenfeld,
this flaring harms the air quality, Eisenfeld’s health, and “compromises the night sky” in the
Chaco Park area. Eisenfeld Decl. ¶ 13, at 6-7.

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Nichols does not recall any oil and gas development in the area in 2008, but, by 2014, he
asserts that, “there were rigs seemingly all over the place, around Nageezi and the road to [Chaco
Park].” Nichols Decl. ¶ 7, at 6-7. According to Nichols, during his last visit, “there were
extensive oil and gas well facilities and infrastructure in the area, particularly around Nageezi
and Lybrook.” Nichols Decl. ¶ 7, at 7. According to Nichols, this new oil-and-gas development
“has detracted significantly from [his] enjoyment of the Greater Chaco area,” and has
“significantly eroded the natural and remote nature of the region.” Nichols Decl. ¶ 8, at 7
(alteration added). According to Nichols, the oil-and-gas development has also created “smells,
dust, and more industrialization,” which is “aesthetically displeasing.” Nichols Decl. ¶ 9, at 7.
According to Green, oil-and-gas development “in the Chaco Canyon area/region and
[Chaco Park]” would harm Green’s visitor experience, because of potential air, noise, and light
pollution, large truck traffic, and the possibility of “soil and groundwater contamination due to
drilling practices.” Green Decl. ¶ 7, at 2-3. Green states that she also has “concerns” regarding
the use of hydraulic fracturing “in the Chaco Canyon area/region and Chaco [Park],” because
fracking may contaminate the area’s groundwater. Green Decl. ¶ 8, at 3.
According to Miura, oil-and-gas development “in the Chaco Canyon area/region and
[Chaco Park]” would “ruin the views and tranquility of the Chaco Canyon area.” Miura Decl.
¶ 6, at 2. Pinto states that she regularly visits Chaco Park and enjoys observing the dark sky
from there, but that “the lights staged at well sites can be as bright as stadium lights.” Pinto
Decl. ¶ 11, at 3. Pinto states that she has also dealt with these bright lights being pointed at the
highway, prohibiting her from seeing the road. See Pinto Decl. ¶ 11, at 3.

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These alleged injuries are ones of “alleged increased environmental risk” or aesthetic
injury, which are both cognizable under Article III. Committee to Save the Rio Hondo v.
Lucero, 102 F.3d at 449. See Lujan, 504 U.S. at 562-63. The Plaintiffs also show that the
alleged increased environmental risk exists because of the BLM’s alleged failure to follow
NEPA. See Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 450. Eisenfeld asserts that
“the agency’s current 2003 RMP never contemplated or analyzed oil development in the greater
Chaco area as required by NEPA.” Eisenfeld Decl. ¶ 7, at 9. See Diné Brief at 17 (“BLM
continues to approve Mancos Shale drilling permits at an intense pace and without the required
environmental review under NEPA.”). The Plaintiffs have therefore established that “the affiants
suffer a threatened increased risk of environmental harm due to the [BLM’s] alleged failure to
follow the National Environmental Policy Act’s procedures.” Committee to Save the Rio Hondo
v. Lucero, 102 F.3d at 450.
That oil-and-gas production has existed in the San Juan Basin for over fifty years and
thousands of wells are currently producing there does not alter that result. See PRMP at 1
(A.R.0001945).

Importantly, the Tenth Circuit’s injury-in-fact test under NEPA requires

showing an “increased risk of environmental harm.” Committee to Save the Rio Hondo v.
Lucero, 102 F.3d at 449 (emphasis added). Regardless whether some risk of harm may already
exist, adding a few hundred wells increases the risk. In short, that other producing wells exist in
the area is immaterial for injury-in-fact purposes.
The Plaintiffs must also show that “the increased risk of environmental harm injures its
concrete interests by demonstrating either its geographical nexus to, or actual use of the site of
the agency action.” Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 449. The

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Plaintiffs have established a geographical nexus. Eisenfeld has visited Chaco Park at least
annually since 1997. See Eisenfeld Decl. ¶ 5, at 2. He also regularly visits “the greater Chaco
region, including areas in and around Counselor, Lybrook, and Nageezi.” Eisenfeld Decl. ¶ 5, at
2. He last visited the “Nageezi area” on April 20, 2017, and intends to return in May and June of
2017. Eisenfeld Decl. ¶ 5, at 2.
Nichols visited Chaco Park in March, 2008, March, 2012, April, 2013, and May, 2015.
See Nichols Decl. ¶ 5, at 4-5. Nichols intends to continue visiting “the Greater Chaco region,
including [Chaco Park] and its outliers . . . at least once a year for the foreseeable future.”
Nichols Decl. ¶ 6, at 6. He intends to visit “this area” again in June, 2017, when he has a trip
planned. Nichols Decl. ¶ 6, at 6.
Green visits Chaco Park “at least once a year.” Green Decl. ¶ 4, at 2. Green intends to
return to Chaco Park “this fall” -- referring to the fall of 2017 -- and “in the future.” Green Decl.
¶ 6, at 2. Miura has visited Chaco Park, and plans to return there “next year, and in the future.”
Miura Decl. ¶ 5, at 2. Pinto regularly visits Chaco Park and enjoys observing the dark sky from
there. See Pinto Decl. ¶ 11, at 3.
Given that the affiants visit Chaco Park and the Nageezi area, and at least several of them
have plans to return, the question is whether Chaco Park and the Nageezi area have a
geographical nexus to the agency action’s site, i.e. the challenged APDs’ well sites.

See

Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 449. It is approximately ten miles
from Chaco Park’s edge to the nearest challenged APD’s well site. See Declaration of Matthew
A. Dorsey at 6 (executed June 2, 2017), filed June 9, 2017 (Doc. 113-1)(“Map”).

It is

approximately fifteen miles from the same edge of Chaco Park, in roughly the same direction, to

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Nageezi.

See Google Maps, https://www.google.com/maps/@36.1761681,-107.8701589,11z.

The Court therefore estimates that it is approximately five miles from Nageezi to the abovementioned well site.
The Tenth Circuit has held that, when affiants lived twelve to fifteen miles downstream
of the affected area, they had a geographical nexus to that area, because “the affiants live
immediately downstream from and share the same watershed with the [affected area, and] they
may be expected to suffer the effects of decreased water quality.” Committee to Save the Rio
Hondo v. Lucero, 102 F.3d at 450 (alterations added). Similarly, the effects of new wells
resulting from the challenged APDs could travel ten miles, causing potential air, noise, and light
pollution, and “the possibility of soil and groundwater contamination due to drilling practices,”
in Chaco Park or in the Nageezi area. Green Decl. ¶ 7, at 2-3. The Plaintiffs have therefore
established an injury in fact for Article III purposes. See Committee to Save the Rio Hondo v.
Lucero, 102 F.3d at 450-51.
B.

THE PLAINTIFFS HAVE SHOWN CAUSATION.

The injury must be “fairly . . . trace[able] to the challenged action of the defendant, and
not . . . the[e] result [of] the independent action of some third party not before the court.” Lujan,
504 U.S. at 560 (alterations in original). In the NEPA context, “once the plaintiff has established
the likelihood of the increased risk for purposes of injury in fact, to establish causation . . . the
plaintiff need only trace the risk of harm to the agency’s alleged failure to follow the National
Environmental Policy Act’s procedures.” Committee to Save the Rio Hondo v. Lucero, 102 F.3d
at 452. Here, the injury is the increased risk of environmental harm from additional oil-and-gas
wells drilled near Chaco Park and near Nageezi. See, e.g., Green Decl. ¶ 7, at 2-3 (asserting that

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oil-and-gas development “in the Chaco Canyon area/region and [Chaco Park]” would harm
Green’s visitor experience, because of potential air, noise, and light pollution, large truck traffic,
and the possibility of “soil and groundwater contamination due to drilling practices”). The
Plaintiffs have asserted that the “BLM’s ongoing approval of Mancos Shale drilling permits . . .
violates NEPA’s requirement that the agency take a hard look at the cumulative impacts of an
action prior to making an irretrievable commitment of resources.” Diné Brief at 25-26 (citing 42
U.S.C. § 4332(2)(C)(v); 40 C.F.R. § 1508.7). In other words, the Plaintiffs contend that the
BLM’s granting of APDs allegedly violates NEPA.

Because these drilling permits allow

operators to drill wells near Chaco Park and near Nageezi, see Map at 6, the Plaintiffs have
traced the risk of environmental harm to the BLM’s alleged failure to follow NEPA’s
procedures. See Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 452.
C.

THE PLAINTIFFS HAVE SHOWN REDRESSABILITY.

To establish redressability, “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotations
omitted). Under NEPA, “a plaintiff need not establish that the ultimate agency decision would
change upon National Environmental Policy Act compliance.

Rather, the [plaintiff] must

establish . . . that its injury would be redressed by a favorable decision requiring the [agency] to
comply with National Environmental Policy Act[] procedures.” Committee to Save the Rio
Hondo v. Lucero, 102 F.3d at 452 (alterations added). That an agency may not change its
decision to allow operations “after preparing an environmental impact statement is immaterial.”
Committee to Save the Rio Hondo v. Lucero, 102 F.3d at 452.

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Here, the injury of an increased risk of environmental harm to Chaco Park and to the
Nageezi area would likely be redressed if the Court rules that the BLM has not followed NEPA’s
procedures, because ordering “[c]ompliance with the National Environmental Policy Act would
avert the possibility that the [BLM] may have overlooked significant environmental
consequences of its action,” that is, granting the APDs. Committee to Save the Rio Hondo v.
Lucero, 102 F.3d at 452. The Court therefore concludes that the Plaintiffs have standing to
pursue their NEPA claim.
The Supreme “Court’s standing cases confirm that a plaintiff must demonstrate standing
for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006).
For substantially the same reasons that the Plaintiffs have standing under NEPA, they also have
standing under the NHPA. The Plaintiffs allege that the “BLM’s APD approvals violate the
NHPA . . . by failing to identify adverse effects to historic properties.” Diné Brief at 47. A
historic property includes those in the “National Register of Historic Places maintained by the
Secretary of the Interior.” 36 C.F.R. § 800.16(l)(1). Chaco Park is a place that fits this
definition. See World Heritage List Nomination Submitted by the United States of America
Chaco Culture National Historical Park at 26 (dated November, 1984)(A.R.0217996)(noting that
Chaco Park “is on the National Register of Historic Places”). For Article III purposes, the injury
remains an increased risk of environmental damage to Chaco Park, which is fairly traceable to
the BLM’s approval of APDs near the park. See Map at 6. The injury would likely be redressed
if the Court ruled that the BLM had not followed the NHPA’s procedures, because ordering
compliance with the NHPA would likely avert the possibility that the BLM overlooked the
environmental consequences of granting the APDs. See Dine, 2015 WL 4997207 (“In general,

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the NHPA requires that a federal agency take into account any adverse effects on historical or
culturally significant sites before taking action that might harm such sites.”).
II.

THE PLAINTIFFS MAY CHALLENGE MOST, BUT NOT ALL, OF THE APDS
UNDER THE APA.
“In addition to Article III standing requirements, a plaintiff seeking judicial review

pursuant to the APA must (i) identify some final agency action and (ii) demonstrate that its
claims fall within the zone of interests protected by the statute forming the basis of its claims.”
Catron Cty. Bd. of Com’rs, New Mexico v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1434 (10th
Cir. 1996)(internal quotation marks omitted).
In order to determine if an agency action is final, we look to whether its impact is
direct and immediate, whether the action mark[s] the consummation of the
agency’s decisionmaking process, and whether the action is one by which rights
or obligations have been determined, or from which legal consequences will flow.
Colorado Farm Bureau Federation v. U.S. Forest Service, 220 F.3d 1171, 1173-74 (10th Cir.
2000)(internal quotations and citations omitted). “An agency’s intent to take action if requested
does not constitute final agency action.” Colorado Farm Bureau Federation v. U.S. Forest
Service, 220 F.3d at 1174.
First, the Plaintiffs’ claims against all of the APDs fall within the zones of interest that
NEPA and the NHPA protect. NEPA’s purpose is to “declare a national policy which will
encourage productive and enjoyable harmony between man and his environment; to promote
efforts which will prevent or eliminate damage to the environment and biosphere. . . .” 42
U.S.C. § 4321. According to the NHPA, “it is the policy of the Federal Government . . . to . . .
provide leadership in the preservation of the historic property of the United States . . . [and to]
administer federally owned, administered, or controlled historic property in a spirit of

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stewardship for the inspiration and benefit of present and future generations.” 54 U.S.C. §
300101(2)-(3)(alteration added). The BLM does not contest that the Plaintiffs’ claims fall within
the NEPA and NHPA zones of interest for APA purposes. Given the Plaintiffs’ allegations of
environmental harm to historic sites including Chaco Park, see, e.g., Green Decl. ¶ 7, at 2-3
(alleging that oil-and-gas development “in the Chaco Canyon area/region and [Chaco Park]”
would harm Green’s visitor experience, because of potential air, noise, and light pollution, large
truck traffic, and the possibility of “soil and groundwater contamination due to drilling
practices”), the Court concludes that the Plaintiffs’ claims fall within the zones of interest that
NEPA and the NHPA protect. Catron Cty. Bd. of Com’rs, New Mexico v. U.S. Fish & Wildlife
Serv., 75 F.3d at 1433 (concluding that an environmental injury falls “well within the zone of
interests protected by NEPA”).
The Plaintiffs have not, however, challenged final agency action with respect to every
APD. The BLM has categorized the APDs in this case as follows: “Producing,” meaning the
well is currently producing; “Approved-Pending Drilling,” meaning the BLM has approved the
APD but the well has not yet been drilled, “Drilled but not Completed,” meaning the well has
been drilled but is not yet completed; “Drilled but Temp. Abandon,” meaning the well has been
drilled but has been temporarily abandoned; “Cancelled,” meaning that the EA has been
cancelled; “Abandoned,” meaning the well has been permanently abandoned; “Shut-in,”
meaning the well has been shut-in; “Rescinded,” meaning the BLM’s decision approving the
APD has been rescinded; “Withdrawn,” meaning the operator has withdrawn the APD; “No APD
package,” meaning the operator has not submitted the APD package to the BLM; and
“Unapproved APD,” meaning “the APD package has been submitted to BLM but it has not been

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approved or denied.” Declaration of Sarah Scott ¶ 8, at 4-5 (executed June 2, 2017), filed June 9,
2017 (Doc. 113-3)(“Scott Decl.”). The Court concludes that challenging an unapproved APD, a
withdrawn APD, or an APD in which the operator has not submitted an APD package to the
BLM is not challenging final agency action, because, in such instances, “the consummation of
the agency’s decisionmaking process” has not yet occurred, and no “rights or obligations have
been determined.” Colorado Farm Bureau Federation v. U.S. Forest Service, 220 F.3d at 117374. Further, “[a]n agency’s intent to take action if requested does not constitute final agency
action.” Colorado Farm Bureau Federation v. U.S. Forest Service, 220 F.3d at 1174.
Additionally, the “Plaintiffs have the burden of identifying specific federal conduct and
explaining how it is final agency action within the meaning of [the APA].” Colorado Farm
Bureau Federation v. U.S. Forest Service, 220 F.3d at 1173 (alterations added)(internal
quotations omitted). Here, the Plaintiffs nakedly assert that the BLM is “mistaken” that a
number of the APDs lack final agency action and provide no explanation. Reply at 30. Not only
is there no explanation why APDs categorized as “Withdrawn,” “No APD package,” and
“Unapproved APD” are final agency action, but there is no explanation regarding an APD
categorized as “cancelled” or “rescinded.” Although the BLM defines cancelled only as “the EA
has been cancelled,” Scott Decl. ¶ 8, at 4, without explaining who or how the EA was cancelled,
and defines rescinded only as “the decision approving the APD has been rescinded,” Scott Decl.
¶ 8, at 4, it is not the BLM’s burden to explain how these decision categories are challengeable as
final agency action. Rather, the “Plaintiffs have the burden of identifying specific federal
conduct and explaining how it is final agency action within the meaning of [the APA].”
Colorado Farm Bureau Federation v. U.S. Forest Service, 220 F.3d at 1173. Because the

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Plaintiffs have provided no explanation how APDs categorized as cancelled or rescinded are
final agency action, they have not met their burden.
For these reasons, the Plaintiffs “lack the statutory standing required to bring this claim
under the APA,” Colorado Farm Bureau Federation v. U.S. Forest Service, 220 F.3d at 1174, in
regards to any APD listed as “Withdrawn,” “No APD package,” “Unapproved APD,”
“Cancelled,” or “Rescinded.” Scott Decl. ¶ 8, at 4-5. The Court therefore lacks jurisdiction to
adjudicate them.17 See Chemical Weapons Group, Inc. (CWWG) v. U.S. Dept. of the Army, 111
F.3d 1485, 1494 (10th Cir. 1997)(“[T]hey must challenge final agency action to confer upon the
district court jurisdiction under the Administrative Procedures Act.”)(internal quotations
omitted).
III.

THE PLAINTIFFS’ APD CHALLENGES ARE NOT MOOT, EXCEPT AS TO
PERMANENTLY ABANDONED WELLS.
The Court concludes that the Plaintiffs’ APD challenges are not moot, except as to

permanently abandoned wells. Article III, Section 2 of the Constitution limits the federal courts’

17

These wells are Lybrook O30-2307 02H (Withdrawn); Nageezi Unit L10-2309 2H
(Withdrawn); Lybrook E29-2306 02H (No APD Package); Lybrook E29-2306 04H (No APD
Package); Lybrook E27-2306 04H; (No APD Package); Lybrook M27-2306 03H (No APD
Package); Lybrook E27-2306 02H (No APD Package); Lybrook M28-2306 04H (No APD
Package); Lybrook 23-8-16 #201H (No APD Package); Lybrook P12-2206 03H (No APD
Package); Lybrook N02-2206 02H (Unapproved APD); Lybrook N02-2206 01H (Unapproved
APD); Kaleigh 1H and 2H (ATS Number ATS-F010-14-353)(No APD Package); Kaleigh 1H
and 2H (ATS Number ATS-F010-14-354)(No APD Package); W Lybrook UT 764H (No APD
Package); W Lybrook UT 766H (No APD Package); Lybrook D34-2307 02H (No APD
Package); Lybrook D34-2307 03H (No APD Package); Lybrook D34-2307 04H (No APD
Package); Lybrook L34-2307 02H (No APD Package); Lybrook L34-2307 03H (No APD
Package); Lybrook L34-2307 04H (No APD Package); Nageezi Unit L10-2309 4H (Cancelled);
Chaco 2307-06G 274H (Rescinded); Lybrook B14-2206 02H (Cancelled); Lybrook B14-2206
01H (Cancelled); Lybrook M12-2206 01H (Cancelled); and Lybrook N12-2206 01H
(Cancelled). See Scott Decl. at 9, 12-15.

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jurisdiction to “cases” and “controversies.” U.S. Const. art. III, § 2. “Federal courts are without
authority to decide questions that cannot affect the rights of litigants in the case before them.”
Ford v. Sully, 773 F. Supp. 1457, 1464 (D. Kan. 1991)(O’Connor, C.J.)(citing North Carolina v.
Rice, 404 U.S. 244, 246 (1971)). See Johansen v. City of Bartlesville, Okla., 862 F.2d 1423,
1426 (10th Cir. 1988); Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir. 1988). “To qualify
as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.” Arizonians for Official English v. Ariz.,
520 U.S. 43, 67 (1997). See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1121 (10th Cir. 2010). Accordingly, if a case becomes moot at any stage, the court does
not have jurisdiction to hear the case. See Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir.
2016)(“Mootness deprives federal courts of jurisdiction.”). A case becomes moot “when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)(citing Powell v.
McCormack, 395 U.S. 486, 496 (1969)).
An exception to the mootness doctrine is voluntary cessation. A “defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to determine the
legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S. at 189 (quotation marks omitted).
In accordance with this principle, the standard we have announced for
determining whether a case has been mooted by the defendant’s voluntary
conduct is stringent: A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.

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Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 189.
(internal quotation marks omitted).

“The heavy burden of persuad[ing] the court that the

challenged conduct cannot reasonably be expected to start up again lies with the parties asserting
mootness.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.
at 189 (alteration in original)(internal quotation marks omitted).
The Court concludes that the Plaintiffs’ challenges to APDs of permanently abandoned
wells are moot. Challenges to wells currently producing, APDs that have been approved but
drilling is pending, wells that have been drilled but not yet completed, wells that have been
temporarily abandoned, and shut-in wells, however, are not moot. As explained above, the
Plaintiffs’ injury is “an injury of alleged increased environmental risks.” Committee to Save the
Rio Hondo v. Lucero, 102 F.3d at 449. This injury persists with respect to producing wells,
wells in which the BLM has approved the APD but drilling is pending, and wells that are drilled
but not yet complete, because, in all such situations, the increased risk of environmental harm
remains.
Under the voluntary cessation doctrine, a challenge to a drilled but temporarily
abandoned well is not moot, because temporary abandonment does not make it “absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 189 (internal quotation
marks omitted). On the contrary, categorizing a well as “temporarily abandoned,” Scott Decl.
¶ 8, at 4, implies that drilling may re-commence, so the allegedly wrongful conduct may recur.
In contrast, a “permanently abandoned” well, Scott Decl. ¶ 8, at 4, renders a challenge moot,
because permanent abandonment, as distinguished from “temporarily abandoned,” Scott Decl.

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¶ 8, at 4, shows that “the allegedly wrongful behavior could not reasonably be expected to
recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at
189 (internal quotation marks omitted). Finally, the wells classified as “shut-in” are not moot,
but, rather, are another example of voluntary cessation. The word “shut-in” may describe a
spectrum of wells, some only temporarily shut-in for mechanical or engineering reasons, or some
shut-in for longer periods, such as no production. Shut-in wells can, however, theoretically, be
re-opened, and the “heavy burden of persuad[ing] the court that the challenged conduct cannot
reasonably be expected to start up again lies with the parties asserting mootness.” Friends of the
Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 189 (alteration in
original)(internal quotation marks omitted). The BLM has not explained if the wells classified as
shut-in might be re-opened, or if they are permanently shut-in, so the Court cannot properly
conclude that “the allegedly wrongful behavior could not reasonably be expected to recur.”18
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. at 189
(internal quotation marks omitted).

For these reasons, only the challenges to permanently

abandoned wells are moot.19 The Court therefore has no jurisdiction to adjudicate them. See
Brown v. Buhman, 822 F.3d at 1165 (“Mootness deprives federal courts of jurisdiction.”).

18

If a shut-in well required a new APD to re-open the well, then the challenge to an APD
of a shut-in well might be moot. The Court could not locate anything in the record, however,
suggesting that a new APD is required to re-open a shut-in well.
19

These wells are Escrito D34-2409 03H (Abandoned); Chaco 2408-33M 120H
(Abandoned); Rosa Unit 648H (Abandoned); and Chaco 2407-35I-901 (Abandoned). See Scott
Decl. at 7, 11-13.

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IV.

THE BLM TOOK A HARD LOOK AT THE WELLS’ EFFECTS, SO COMPLIED
WITH NEPA.20
As the Court previously observed,
This case ultimately boils down to whether the BLM’s FONSIs -- which allowed
it to rely on the site-specific EAs rather than commissioning an entirely new
EIS -- were arbitrary and capricious, or were the result of the BLM’s failure to
take a hard look at the environmental consequences of approving the challenged
APDs.

Dine, 2015 WL 4997207, at *40. The relevant regulation states:
An environmental assessment prepared in support of an individual proposed
action can be tiered to a programmatic or other broader-scope environmental
impact statement. An environmental assessment may be prepared, and a
finding of no significant impact reached, for a proposed action with
significant effects, whether direct, indirect, or cumulative, if the
environmental assessment is tiered to a broader environmental impact
statement which fully analyzed those significant effects. Tiering to the
programmatic or broader-scope environmental impact statement would allow the
preparation of an environmental assessment and a finding of no significant
20

The API argues that “the law of the case doctrine resolves the majority of Plaintiffs’
claims.” API Response at 2. The Court would be remiss, however, to rely only on the law-ofthe-case doctrine in adjudicating the Motion, as the Tenth Circuit noted in Diné II that a different
outcome could result if the Plaintiffs developed their arguments. See Dine II, 839 F.3d at 1285.
As the Court has previously observed, “[u]nlike vertical stare decisis” law of the case “is a
flexible [rule] that allows courts to depart from erroneous prior rulings, as the underlying policy
of the rule is one of efficiency, not restraint of judicial power.” Mocek v. City of Albuquerque, 3
F. Supp. 3d 1046 (D.N.M. 2014)(Browning, J.)(italics in original)(quoting Prairie Band
Potawatomi Nation v. Wagnon, 476 F.3d 818, 823 (10th Cir. 2007)). While the Court should
depart from an appellate court’s ruling on the same issue in the same case in only few
circumstances, one of those circumstances is if the evidence adduced or presented substantially
diverges from the evidence presented before the appellate court. The Court must, thus, engage in
the analysis it does to ensure that there are no new arguments or evidence presented.
The Court also concludes that law of the case does not apply here, because the Court is
not resolving the “same issues” in “subsequent phases of the same case.” Been v. O.K.
Industries, Inc., 495 F.3d 1217, 1224 (10th Cir. 2007). At the preliminary injunction stage, the
Court was deciding whether the Plaintiffs were substantially likely to succeed on the merits.
Here, in contrast, the Court is deciding whether the Plaintiffs in fact succeed on the merits.
There is a difference between the two issues, otherwise preliminary injunction losers would
never be able to continue their claim to the merits phase, as law of the case would always
preclude continued litigation. Accordingly, the Court conducts the following analysis.
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impact for the individual proposed action, so long as any previously
unanalyzed effects are not significant. A finding of no significant impact other
than those already disclosed and analyzed in the environmental impact statement
to which the environmental assessment is tiered may also be called a “finding of
no new significant impact.”
43 C.F.R. § 46.140(c)(emphasis added).

Essentially, the BLM must conduct an EA-level

analysis to determine whether any new technology, not analyzed in the EIS, has significant
effects. If the new technology has significant effects, the BLM must create a new EIS to analyze
those effects. If the new technology does not have significant effects, the BLM may issue a
FONSI.

See 40 C.F.R. § 1508.9(a)(1)(explaining that an EA serves to “[b]riefly provide

sufficient evidence and analysis for determining whether to prepare an environmental impact
statement or a finding of no significant impact”); 42 U.S.C. § 4332(c)(explaining that agencies
shall create an EIS for “actions significantly affecting the quality of the human environment”);
40 C.F.R. § 1508.13 (stating that a FONSI explains why, based on an EA, an action is not one
significantly affecting the quality of the human environment such that an EIS is unnecessary).
For this case’s purposes, the Court must decide whether the EAs determined that new
developments in horizontal drilling and fracking technology as used after the 2003 RMP/EIS was
issued have no significant environmental effects, compared to the 2003 technology, which would
enable the BLM to properly issue FONSIs, see 40 C.F.R. § 1508.13, and would allow the BLM
to properly tier the EAs to the 2003 RMP/EIS, see 43 C.F.R. § 46.140(c). The Court has
previously noted that the “BLM has both (i) analyzed the impacts of directionally drilled and
fracked wells, at the EA level; and (ii) found, again at the EA level, that any difference in
environmental impacts between the new technology and the technology that the 2003 RMP/EIS
analyzed are insignificant.”

Dine, 2015 WL 4997207, at *45.

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The Court stands by this

determination. For example, the EAs explain that “fracking is a common process in the San Juan
Basin and applied to nearly all wells drilled. The producing zone targeted by the proposed
project is well below any underground sources of drinking water. The Mancos Shale formation
is also overlain by a continuous confining layer.”

2014 EA at 26 (A.R.0140173). The EAs

further explain that there exists “an impermeable layer that isolates the Mancos Shale . . .
formations from both identified sources of drinking water and surface water.” 2014 EA at 26-27
(A.R.0140173-74).

For these reasons, “no impacts to surface water or freshwater-bearing

groundwater aquifers are expected to occur from fracking of the proposed wells.” 2014 EA at 27
(A.R.0140174). See Environmental Assessment DOI-BLM-NM-F010-2015-0060, at 25 (dated
January, 2015)(A.R.0141950)(same); Environmental Assessment DOI-BLM-NM-F010-20150045, at 7 (dated January, 2015)(A.R.0141288)(same).
Other EAs explain that “horizontal drilling applications throughout the San Juan Basin
have become relatively common. Generally, the use of this technology is applied when it is
necessary to avoid or minimize impacts to surface resources.” 2014 EA at 17 (A.R.0140164).
See Environmental Assessment DOI-BLM-NM-F010-2015-0060, at 17 (dated January,
2015)(A.R.0141942)(same); Environmental Assessment DOI-BLM-NM-F010-2015-0066, at 20
(dated February, 2015)(A.R.0143938)(same). This result is because “horizontal drilling often
allows for ‘twinning,’ or drilling two or more wells from one shared well pad.” 2014 EA at 17
(A.R.0140164). Indeed, San Juan Alliance once stated that “[a]lternative drilling methods such
as horizontal drilling would, if used in the San Juan basin, reduce adverse impacts such as noise,
air pollution, and scarred landscapes from wells and roads. Why can’t several wells be drilled
from one location? The BLM must consider/require feasible technical alternatives such as

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horizontal drilling.”

San Juan Comment at P-123 (A.R.0001847).

Another EA says that

estimated C02 emissions from a horizontal well would represent only a “0.0008 percent increase
in New Mexico C02 emissions.” Environmental Assessment DOI-BLM-NM-F010-2015-0045,
at 22 (dated January, 2015)(A.R.0141356). On this record, the Court concludes that the BLM’s
EAs “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact,” 40 C.F.R. § 1508.9(a)(1),
and that the BLM properly tiered the EAs to the 2003 RMP/EIS, because “any previously
unanalyzed effects are not significant.” 43 C.F.R. § 46.140(c).
Further, as the Court has previously observed, fracking “has been around for a very long
time.” Dine, 2015 WL 4997207, at *44. Indeed, since fracking was introduced in 1949, “nearly
every well in the San Juan Basin has been fracture stimulated.” FONSI at 2 (A.R.0232032).
“Effective and economical directional drilling is relatively new, but that technology is a net
positive for the environment.” Dine, 2015 WL 4997207, at *44. See San Juan Comment at P123 (A.R.0001847)(“Alternative drilling methods such as horizontal drilling would, if used in
the San Juan basin, reduce adverse impacts such as noise, air pollution, and scarred landscapes
from wells and roads.”); 2014 EA at 17 (A.R.0140164)(explaining that “horizontal drilling often
allows for ‘twinning,’ or drilling two or more wells from one shared well pad”). Indeed, the
record contains many examples explaining how the use of horizontal drilling and fracking since
the 2003 RMP/EIS was issued do not significantly harm the environment. See, e.g., White Paper
at 16 (A.R.0149876)(“The development of a hydrocarbon resource utilizing horizontal wells,
drilled from multi-well pads, and stimulating by fracking minimizes the number of wells and
surface disturbance needed to fully develop that resource, therefore minimizing biological

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impacts.”); White Paper at 22 (A.R.0149882)(explaining that “[t]hrough the practices of reuse
and recycling, water resources [used for fracking] can be preserved,” and that the “use of other
substances acting as the fracking fluid . . . can also reduce the demand on water
supplies.”)(alterations added).
Additionally, “as the district court pointed out, only 3,860 of the anticipated 9,942 new
wells in the planning area were drilled in the twelve years between the issuance of the 2003 RMP
and the court’s consideration of this issue in 2015.” Diné II, 839 F.3d at 1283. “Thus, even with
increased drilling in the Mancos Shale formation and the switch to horizontal drilling and multistage fracturing, the overall amount of the drilling and related surface impacts are still well
within the anticipated level.” Diné II, 839 F.3d at 1283.
As for the possibly increased air quality impacts, the agency considered these
impacts in its environmental assessments and concluded that the approved drilling
activities would not cause a significant increase in emissions over the amount
anticipated in the RMP or a violation of national air quality standards for any
criteria pollutant.
Diné II, 839 F.3d at 1283. These facts further show that “any previously unanalyzed effects are
not significant.” 43 C.F.R. § 46.140(c). In sum, the BLM’s EAs complied with NEPA’s
requirements.
The Plaintiffs contend that the 2003 RMP/EIS “analyzed the environmental consequences
of drilling a projected 9,942 wells.” Diné Brief at 24. This analysis, however, “did not include
the Mancos Shale,” because “development of the Mancos Shale formation was not reasonably
foreseeable at the time the 2003 RMP/EIS was prepared.” Diné Brief at 24. With recent
advances in horizontal drilling and fracking, however, developing the Mancos Shale became
foreseeable. See Diné Brief at 24. According to the Plaintiffs, in light of these technological

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developments, the BLM “prepared the 2014 RFDS, which estimated the drilling of 3,960
Mancos Shale wells,” which are “in addition to -- not instead of -- the 9,942 vertical wells
previously projected by BLM in the 2003 RMP/EIS” Diné Brief at 24-25. The Plaintiffs
therefore conclude that the “BLM has never analyzed the environmental and human health
impacts from the combined total of 13,902 reasonably foreseeable oil and gas wells across the
San Juan Basin.” Diné Brief at 28.
First, as explained above, the Court continues to hold that any difference in
environmental impacts between the new technology and the technology that the 2003 RMP/EIS
analyzed are insignificant for NEPA’s purposes. See San Juan Comment at P-123
(A.R.0001847)(“Alternative drilling methods such as horizontal drilling would, if used in the
San Juan basin, reduce adverse impacts such as noise, air pollution, and scarred landscapes from
wells and roads.”); White Paper at 16 (A.R.0149876)(“The development of a hydrocarbon
resource utilizing horizontal wells, drilled from multi-well pads, and stimulating by fracking
minimizes the number of wells and surface disturbance needed to fully develop that resource,
therefore minimizing biological impacts.”).
Second, even though more drilling is occurring in the Mancos Shale than the 2003
RMP/EIS anticipated, the fact remains that “only 3,860 of the anticipated 9,942 new wells in the
planning area were drilled in the twelve years between the issuance of the 2003 RMP and the
court’s consideration of this issue in 2015.” Diné II, 839 F.3d at 1283. “Thus, even with
increased drilling in the Mancos Shale formation and the switch to horizontal drilling and multistage fracturing, the overall amount of the drilling and related surface impacts are still well
within the anticipated level.” Diné II, 839 F.3d at 1283. Since the Court and the Tenth Circuit

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last considered this issue, the numbers have slightly changed, and now 3,945 wells have been
drilled in the San Juan Basin since the 2003 RMP/EIS. See BLM Response at 10-11 (citing
Mankiewicz Decl. ¶ 3, at 3). Accordingly, the San Juan Basin now contains 5,997 fewer wells
than the 2003 RMP/EIS anticipated. Thus, even if another 3,960 Mancos Shale wells are drilled,
the total number of wells and “the overall amount of the drilling and related surface impacts are
still well within the anticipated level.” Diné II, 839 F.3d at 1283.
The Plaintiffs raise, however, an argument that they did not raise previously before the
Tenth Circuit. See Diné II, 839 F.3d at 1289 (“Importantly, plaintiffs do not argue that the total
impacts of drilling in the basin have exceeded the total impacts predicted in the 2003 EIS.”).
Here, they cure that deficiency and argue that the total impacts of horizontal drilling coupled
with the already drilled vertical wells will exceed the total impacts considered in the 2003 EIS.
See Diné Reply at 11-12. Specifically, they argue that the 2003 EIS considered only the surface
impacts to 18,577 acres, whereas, with the addition 3,960 Mancos Shale wells, the combined
surface impact of the already-drilled vertical wells and the Mancos Shale wells will be 28,482
acres -- therefore exceeding the surface impact considered in the 2003 EIS. See Diné Reply at
11. Their analysis is flawed, however, because they assume that for every one horizontal well,
there will be a surface impact of 5.2 acres. See Diné Reply at 11. That ignores record evidence
demonstrating that several horizontal wells may fit per well pad. See Environmental Assessment
DOI-BLM-NM-F010-2016-0036 at 16, (February, 2016)(A.R.0234975)(noting that four wells
could be drilled from one well pad that encompassed a 4.57 acre area)(“2016 EA”); 2014 EA at
17 (A.R.0140164)(explaining that “horizontal drilling often allows for ‘twinning,’ or drilling two

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or more wells from one shared well pad”).

The Court declines to adopt that bloated acreage

number, as the record refutes it.
The Plaintiffs’ argument is even more fundamentally flawed, however, because in
aggregating the surface impacts, they count impacts of all of the potential 3,960 horizontal wells.
But the Plaintiffs do not and cannot challenge all of the 3,960 horizontal wells, because only 382
are at issue, and, as the Court has concluded, only 350 are live in this dispute. See Complaint
¶ 105, at 30; supra at 83 n.17, 86 n.19. The narrow question before the Court, therefore, is
whether the 350 APDs violate NEPA, because their impacts exceed the 2003 EIS’ projection.
Using all 3,960 wells -- 3,578 of which are purely hypothetical -- to determine the total impact
erroneously swells the Plaintiffs’ calculation. Using 350 as a multiplier, the surface impacts fall
comfortably within the 2003 EIS projection: (7,890 + (5.2 x 350)) = 9,710 acres21, which is less
than the 2003 EIS projection of 18,577 acres.22
consumption and air pollution numbers.

The same analysis applies to the water

Projected water consumption is: 1,475,407,500

gallons23, which is less than the 2,818,557,000 gallon 2003 EIS projection. See Diné Reply at
11. The air pollution numbers are as follows:

21

The formula used for this calculation is ((acres impacted per vertical well x vertical
wells already drilled) + (acres impacted per horizontal well x the 350 horizontal wells at issue)).
See Diné Reply at 11.
22

In calculating these projections, the Court assumes that the Plaintiffs numbers from
their reply brief are correct. See Diné Reply at 11-12. For reasons already explained, the Court
concludes that the record supports a lower number for acres impacted per horizontal well.
Accordingly, the total acres impacted is actually less than the 9,715.2 acres that the Court lists
above.
23

The formula for this calculation is ((gallons consumed per vertical well x vertical wells
already drilled) + (gallons consumed per horizontal well x 350 horizontal wells at issue)). Thus,
broken down, the calculation is (283,500 x 3,945) + (1,020,000 x 350) = 1,475,407,500 gallons.
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Air Pollution24
Well Type

Well
Construction
(d )
Vertical
9
Horizontal
25
Est. Total Impacts (3,945 vert.)
Est. Total Impacts (350 horiz.)
Total Combined
Considered (2003 RMP/EIS)

NOx (tpy)
2.30
6.13
9,073.525
2,145.5
11,219
22,866

CO(tpy)
0.63
1.64
2,485
574
2,706.13
6,263

VOC(tpy)
/3 960
0.20
0.55
789
192.5
982.05
1,988

PM10 (tpy)
0.92
2.54
3,629
889
4,518
9,146

Each combined number is far less than the numbers considered in the 2003 RMP/EIS.
Accordingly, the total impacts of drilling in the basin still have not exceeded the total impacts
predicted in the 2003 EIS, so there is no NEPA violation on these grounds. Because the
differences in technology since the 2003 RMP/EIS are not significant for NEPA’s purposes, and

Again, the Court assumes that the Plaintiffs numbers are correct for this argument. Having
reviewed the underlying record, the Court concludes that the gallons consumed per horizontal
well is lower, as the Plaintiffs do not account for the estimated 25% reuse of flow back water, see
2014 RFDS at 23 (A.R.0173848), nor does it account for foam fracking, which would also
reduce the amount of gallons per horizontal wells consumed, see 2014 RFDS at 24
(A.R.0173849). Accordingly, the 1,476,427,500 gallons figure is greater than the number of
gallons consumed per well.
24

The Court assumes, again, that the numbers in this table -- taken from their reply brief
-- are correct. Having reviewed the underlying record that they cite, however, the Court cannot
discern how the Plaintiffs determined these numbers. For example, they state that NOx emissions
are equal to 2.3 tons per well per year. See Diné Reply Brief at 11. The 2003 EIS notes, in
contrast, that the BLM estimates NOx emissions to be 3,333.4 tons per year for 663 wells, which
would yield 5.02 tons per well per year. See 2003 RMP/EIS at 4-58, 4-59 (A.R.0001068-69). It
is possible that the Court is misinterpreting the 2003 EIS’ figures. Nevertheless, the Court
suspects that the emissions projected in the 2003 EIS are higher than the Plaintiffs estimate.
Thus, the Total Combined numbers above are an inflated figure, but, even as inflated, the BLM
has not violated NEPA.
25

The reply brief lists this number as 20,869, but the Court concludes that it must be an
arithmetic error, because 2.3 x 3,945 = 9,073.5, and not 20,869. See Diné Reply at 12.
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the total number of wells remain within the 2003 RMP/EIS estimate, the Court concludes that the
Plaintiffs’ argument is without merit.
V.

THE BLM ADEQUATELY INVOLVED THE PUBLIC IN ITS NEPA PROCESS.
The BLM did not violate NEPA when it prepared and published EAs for the Mancos

Shale wells. The Plaintiffs assert two arguments: (i) the BLM did not adequately involve the
public during its EA process; and (ii) the BLM did not timely post its EAs in a public forum.
The Court disagrees with both contentions.
“When preparing an EA, an ‘agency shall involve . . . the public . . . to the extent
practicable.” WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d 677, 698 (10th Cir.
2015)(quoting 40 C.F.R. § 1501.4(b))(alterations in WildEarth Guardians v. U.S. Fish and
Wildlife Serv.). “Plainly, this language affords an agency ‘considerable discretion to decide the
extent to which such public involvement is practicable.’” WildEarth Guardians v. U.S. Fish and
Wildlife Serv., 784 F.3d at 698 (quoting Brodsky v. U.S. Nuclear Regulatory Comm’n, 704 F.3d
113, 121 (2d Cir. 2013)). The BLM is not required to make every draft EA available for public
comment to satisfy the public involvement requirement. See Greater Yellowstone Coalition v.
Flowers, 359 F.3d 1257, 1279 (10th Cir. 2004)(“Flowers”). Rather, as long as the documents
circulated give some notice to the public of the project’s nature and effects, the agency meets the
public notice requirement. See WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d at
698-99; Flowers, 359 F.3d at 1279. For example, in Flowers, the agency did not make publically
available the EA or other relevant documents, but it “include[d] maps detailing the layout of the
359-acre proposal” and “also stated that the project is likely to adversely affect bald eagles.”
Flowers, 359 F.3d at 1279.

With those publically available documents, the Tenth Circuit

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concluded that the agency adequately included the public. See Flowers, 359 F.3d at 1279.
Similarly, in WildEarth Guardians v. U.S. Fish and Wildlife Serv., the Tenth Circuit, citing
Flowers with approval, concluded that a “circulated notice” mentioning a projects’ impact on
Preble’s Meadow Jumping Mouse26 sufficiently gave notice to the public under NEPA.
WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d at 698-99. In so concluding, the
Tenth Circuit focused on the notice’s effect to determine whether the notice given was sufficient.
See WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d at 699 (“[T]he notice was
presumably sufficient since the comments themselves then brought the issue [of the mouse]
up.”).
Here, the BLM satisfied that minimal public notice requirement. Although it did not
furnish EA drafts for public comment, the BLM provides a NEPA log on its website, which
tracks each proposed well, its location coordinates, the county in which the well is located, the
date the well was submitted for approval, the date -- if any -- the BLM approved the well, and
contact information for the BLM employee responsible for that well. See, e.g., NEPA Log at 135 (A.R.0151320-54). See also BLM Response at 31 (citing NEPA Logs in the record at
A.R.0150140-15180). Updates to the NEPA log are made weekly.

See Letter from Victoria

Barr, Bureau of Land Management District Manager, to Mike Eisenfeld at 2 (dated January 26,
2015)(A.R.0178210)(“BLM Letter to Eisenfeld”). The BLM also hosts public meetings at each
proposed well’s site and sends notices of those meetings to parties via email. See Draft Letter
26

Preble’s Meadow Jumping Mouse is a subspecies of meadow jumping mice that
Edward A. Preble discovered in 1899. See Preble’s Meadow Jumping Mouse, U.S. Fish &
Wildlife Service: Endangered Species Mammals, at 1 (October 13, 2017) available at
https://www.fws.gov/mountain-prairie/es/preblesMeadowJumpingMouse.php. It is a threatened
sub-species found primarily in southeastern Wyoming and Colorado’s Front Ranges. See supra
Preble’s Meadow Jumping Mouse at 1.
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from the Bureau of Land Management (unsigned) to Jeremy Nichols, WildEarth Guardians
Climate and Energy Program Direct, Erik Schlenker-Goodrich, Western Environmental Law
Center Environmental Director, Mike Eisenfeld, San Juan Citizens Alliance New Mexico Energy
Coordinator, Anson Wright, Chaco Alliance Coordinator at 2 (undated)(A.R.0178704). See also
BLM Response at 31.
The Court concludes that the BLM’s NEPA logs and the public meetings about proposed
wells gave sufficient notice, because both actions alert the public to the projects and the effects
the projects might have on the environment. Although the NEPA logs do not explicitly state that
oil-and-gas wells affect the air quality or the environment, see Diné Reply at 16, the BLM does
not have to call a horse a horse to give the public adequate notice. In 2018, it is self-evident -especially to environmental non-profits, such as the Plaintiffs -- that new oil-and-gas wells
affect air quality and the environment. See Colorado Environmental Coalition v. Salazar, 875
F. Supp. 2d 1233, 1253 (D. Colo. 2012)(Krieger, J.)(analyzing an environmental groups’
contention whether “oil and gas development” in Colorado “would affect air quality”). Cf.
Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 33 (D.C. Cir. 2015)(“The
construction and operation of [oil] pipelines necessarily affect land, water, air, plants, animals,
and human life, and carry the potential for unintended damage.”). The Court’s conclusion that
the BLM gave the requisite notice also follows from WildEarth Guardians v. U.S. Fish and
Wildlife Serv., 784 F.3d at 699. In that case, the Tenth Circuit determined that actual notice of
the project’s potential impacts also serves as sufficient notice for NEPA purposes.

See

WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d at 699 (“[T]he notice was

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presumably sufficient since the comments themselves then brought the issue [of the mouse]
up.”); Flowers, 359 F.3d at 1279.
Here, in addition to the self-evident proposition that oil-and-gas wells affect the
environment, there is record evidence that the Plaintiffs had actual notice of the oil-and-gas
wells’ environmental effects without the benefit of EAs on every well and without an explicit
statement from the BLM that oil-and-gas wells may cause environmental effects. See Letter
from Jeremy Nichols, WildEarth Guardians Climate and Energy Program Director, Mike
Eisenfeld, San Juan Citizens Alliance New Mexico Energy Coordinator, Erik SchlenkerGoodrich, Western Environmental Law Center Executive Director, Anson Wright, Chaco
Alliance Coordinator to Jesse Juen, Bureau of Land Management State Director, Gary Torres,
Bureau of Land Management Farmington Field Office Field Manager at 1 (dated October 27,
2014)(A.R.0178400)(“WildEarth et al. letter”)(“The BLM’s rampant approval of Mancos shale
drilling and fracking is not only threatening the region’s air, water, fish and wildlife, but
undermining our nation’s progress in reducing greenhouse gases and combating climate
change.”). Accordingly, the Court concludes that the BLM did not violate NEPA by failing to
give the public notice of its proposed wells’ effects. See also Amigos Bravos v. U.S. Bureau of
Land Management, 2011 WL 7701433, at *27 (D.N.M. Aug. 3, 2011)(Brack, J.)(“[A]lthough the
EAs in this case were not open for public comment, the fact that BLM published Notices of the
Lease Sales, made copies of the EAs available to the public at its Farmington field office, listed
the EAs on BLM’s website, and permitted protests constituted more than adequate public
involvement for the issuance of an EA/FONSI.”).

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The Plaintiffs contend, however, that the BLM did not adequately involve the public
when it prepared EAs for the Mancos Shale wells, because the BLM made a case-by-case
determination whether to post draft EAs for public comment depending on whether the well was
“routine or unique,” and “who might be interested or affected by the project.” Diné Brief at 29.
According to the Plaintiffs, the BLM arbitrarily labeled some wells “routine” to exclude the
public. Diné Brief at 29. The Plaintiffs also assert that their repeated requests for information
about wells should have signaled to the BLM that the wells were not “routine.” Diné Brief at 2930.
The Court concludes that the BLM’s policy of making a case-by-case determination
whether to post draft EAs for comment falls within the BLM’s considerable discretion to dictate
its EA process.

The Tenth Circuit has determined that the agency does not need to disclose

every draft EA. See Flowers, 359 F.3d at 1279. Moreover, the plain language of the regulation’s
notice requirement entails notifying the public where “practicable.” 40 C.F.R. § 1501.4(b).
Such language recognizes that it may be difficult to involve the public in every EA, so
commonsense policies cutting down the number of unimportant, ordinary, or redundant draft
EAs made publicly available for comment, so that more time can be devoted to unique or
significant EAs, is consistent with that regulation. The BLM’s process of withholding draft EAs
“whose analysis is similar to comparable past actions” is such a commonsense rule. BLM
Response at 31.
Although the Plaintiffs contend that the BLM arbitrarily labeled some wells routine to
avoid disclosing public draft EAs, there is no record evidence that the BLM acted arbitrarily.
The Plaintiffs’ citations to support that argument are: (i) an email from environmental groups

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arguing that the BLM should put a hold on leasing land and approving APDs in areas where
fracking and horizontal drilling is reasonably foreseeable, see Diné Brief at 29 (citing Email
from Wilma Tope, Powder River Basin Resource Council Chair, Nathan Johnson, Buckeye
Forest Council Staff Attorney, Brendan Cummings, Center for Biological Diversity Public Lands
Director, Bruce Valzel, Earthworks Oil & Gas Accountability Project Senior Staff Attorney,
Amy Mall, Natural Resources Defense Council Senior Policy Analyst, Barry Weaver, Newton
County Wildlife Association Chair, Mike Eisenfeld, San Juan Citizens Alliance New Mexico
Energy Coordinator, Walter Loraine McCosker, Ohio Sierra Club Forest and Public Lands
Committee Co-Chair, Donny Nelson, Western Organization of Resource Councils Oil and Gas
Campaign Team Chair, and Bruce Pendery, Wyoming Outdoor Council Staff Attorney to
Michael J Pool, Bureau of Land Management at 1 (dated August 7, 2012)(A.R.0178179-81));
(ii) an email from Eisenfeld stating that he objects to the BLM’s practice of self-determining
what wells are routine or unique, see Diné Brief at 30 n.10 (citing Email from Mike Eisenfeld,
San Juan Citizens Alliance New Mexico Energy Coordinator to Gary Torres, Bureau of Land
Management Deputy Division Chief (Acting) at 2 (dated December 3, 2014)(A.R.0178208));
(iii) the WildEarth et al. Letter requesting that the BLM stop issuing new APDs and detailing
their arguments why such an action is appropriate, see Diné Brief at 30 (citing WildEarth et al.
Letter at 1 (A.R.0178401); and (iv) various requests for final EAs not posted to the BLM’s
website and the BLM’s responses, see Diné Brief at 30 (citing Email from Mike Eisenfeld to
Gary Torres at 1 (dated August 5, 2013)(A.R.0178183); Email from Maureen Joe to Mike
Eisenfeld at 1 (dated August 28, 2013)(A.R.0178185); Email from Mike Eisenfeld to Amanda
Nisula at 1 (dated March 6, 2014)(A.R.0178186); Email from Mike Eisenfeld to Amanda Nisula

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at 1 (dated October 2, 2014)(AR178204); Email from Amanda Nisula to Mike Eisenfeld at 1
(dated October 3, 2014)(AR178204)). The record cited demonstrates that environmental groups
have objected, for many years, to the way that the BLM has conducted its processes, but it does
not demonstrate that the BLM arbitrarily labeled some of the wells routine to avoid public
involvement. The Court finds no record evidence, for example, that these wells are so different
from each other such that the BLM’s determination that their EAs would be alike is clearly
without basis. Moreover, after studying several EAs in the record, the Court concludes that the
EAs’ analyses for many, if not all of these wells, are likely to be substantially similar. In two of
the EAs that the Court considered the environmental analysis is highly alike.

Compare

Environmental Assessment DOI-BLM-NM-F010-2014-0254 at 18-20 (A.R.0120125-27), with
Environmental Assessment DOI-BLM-NM-F010-2014-0250 at 18-21 (A.R.0119200-03). For
example, in both EA’s air quality analysis, the BLM lists harmful pollutants, considers how
much the well will increase the amount of those pollutants, and determines the cumulative
impact the well will have on the air with the other wells in the San Juan Basin. Compare
Environmental Assessment DOI-BLM-NM-F010-2014-0254 at 18-20 (A.R.0120125-27), with
Environmental Assessment DOI-BLM-NM-F010-2014-0250 at 18-21 (A.R.0119200-03). The
Court concludes, accordingly, that the BLM did not act arbitrarily in labeling these projects
routine.
Finally, the Plaintiffs argue that the BLM violated NEPA regulations when it delayed
posting the final EAs. See Diné Brief at 30-31. Under 43 C.F.R. § 46.305, the BLM must
“notify the public of the availability of an environmental assessment and any associated finding
of no significant impact once they have been completed.” 43 C.F.R. § 46.305(c). The Court

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concludes that the BLM complied with that requirement. 43 C.F.R. § 46.305(c) is, at bottom, a
notice regulation. The BLM provided that notice by updating its website whenever an EA was
completed. See, e.g., NEPA Log at 1-35 (A.R.0151320-54). It is true that, because of a backlog,
the BLM did not immediately post every completed EA to its website. See Email from Amanda
Nisula to Mike Eisenfeld at 1 (dated October, 3, 2014)(A.R.0178204). The regulation does not,
however, require that the EA be posted to the internet once complete. See 43 C.F.R. § 46.305(c).
Instead, it requires that the public be notified when an EA is available.

See 43 C.F.R.

§ 46.305(c). By all accounts, these EAs were available, even though they were not posted on the
internet, because the BLM granted access to physical copies of EAs within days of a request.
See United States Department of the Interior Bureau of Land Management Visitor Log at 1
(dated October 7, 2014)(A.R.0178205)(listing Mike Eisenfeld as a visitor); Letter from Mike
Eisenfeld to Amanda Nisula at 3 (A.R.0178297)(“On October 7, 2014 BLM employees ushered
me into the worker cubicle area and handed me hard copies of the EAs, Decision Records (DRs)
and Finding of No Significant Impacts (FONSIs), and told me to make my own copies.”). The
delay in receiving the EA also does not run afoul of 43 C.F.R. § 46.305(c), because the
regulation imposes no deadline when the public must have access to the EA. See 43 C.F.R.
§ 46.305(c). Notice of the document’s availability must be issued “once” the EA has “been
completed,” but it says nothing about when the document must be disclosed.

43 C.F.R.

§ 46.305(c).
The two cases that the Plaintiffs cite to the contrary are inapposite. See Diné Brief at 31
(citing WildEarth Guardians v. OSMRE, 104 F. Supp. 3d 1208, 1224 (D. Colo. 2015)(Jackson,
J.), order vacated by 652 F. App’x 717, 719 (10th Cir. 2016); Guardians v. U.S. of Surface

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Mining Reclamation and Enforcement, 2016 WL 6442724, at *7 (D. Mont. Jan. 21, 2016)(Otsby,
M.J.) order adopted in part and rejected in part, 2016 WL 259285, at *2 (Watters, J.)). In both
cases, the agency did not tell anyone that they had placed paper copies of “EAs and FONSIs on a
shelf in its high-rise office,” and in the public reading room. WildEarth Guardians v. OSMRE,
104 F. Supp. 3d at 1224.

See Guardians v. U.S. of Surface Mining Reclamation and

Enforcement, 2016 WL 6442724, at *7. Thus, the EAs were available, but they gave the public
no notice. Here, in contrast, the BLM gave the public notice of completed EAs with its NEPA
log. See, e.g., NEPA Log at 1-35 (A.R.0151320-54). Their availability was not immediate, but
the regulation does not require immediate availability. See 43 C.F.R. § 46.305(c). Accordingly,
neither of these cases dictate a different outcome.
VI.

THE BLM DID NOT VIOLATE THE NHPA, BECAUSE CHACO PARK AND
ITS SATELITTES ARE OUTSIDE OF THE APE, AND THE RECORDS’
CULTURAL RESOURCE ANALYSES SATISFY THE PROTOCOLS’
DOCUMENTATION STANDARDS.
The Court concludes that the Plaintiffs’ main contention with respect to the NHPA -- that

the BLM violated the NHPA by not analyzing the indirect effects the wells would have on Chaco
Park and its satellites -- lacks merit. That contention fails, because the Protocols governing the
BLM require it to consider effects on historical sites within the APE, and Chaco Park and its
satellites are outside of the wells’ APEs. Thus, that the BLM did not consider the wells’ effects
on Chaco Park and its satellites did not violate the Protocols, so did not violate the NHPA. The
records’ cultural resources analysis otherwise comport with the Protocol’s documentation
standards, so there is no other NHPA violation.
“NHPA, like NEPA, is a procedural statute requiring government agencies to stop, look,
and listen before proceeding when their action will affect national historical assets.” Coal. of
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Concerned Citizens To Make Art Smart v. Fed. Transit Admin. of U.S. Dep’t of Transportation,
843 F.3d 886, 905 (10th Cir. 2016)(“Concerned Citizens”). Section 106 of NHPA “requires an
agency undertaking a project expected to adversely affect a public or private site listed on the
National Register of Historic Places to ‘take into account the effect of the undertaking on any
historic property.’” Concerned Citizens, 843 F.3d at 905 (quoting 54 U.S.C. § 306108).
Because the NHPA is a procedural statute, a reviewing court is not tasked with
determining if the BLM correctly decided whether an oil well or another project altered a historic
site. See Concerned Citizens, 843 F.3d at 906-08. Instead, a reviewing court must ensure only
that the BLM followed the proper procedures and considered the factors it was supposed to
consider when the BLM made its determination. See Concerned Citizens, 843 F.3d at 906-08.
The NHPA’s regulations outline both the requisite procedure and the proper factors. See 36
C.F.R. §§ 800.3-.13. First, they require that the BLM designate an area -- termed the “APE.” 36
C.F.R. § 800.4(1)(a).

See 36 C.F.R. § 800.16(d) (“Area of Potential effects means the

geographic area or areas which an undertaking may directly or indirectly cause alterations in the
character or use of historic properties.”); Concerned Citizens, 843 F.3d at 906. Within that APE,
the BLM must identify historic properties. See 36 C.F.R. § 800.4(b). Next, the BLM must
consider whether the undertaking will affect the historic properties identified within the APE.
See 36 C.F.R. § 800.4(d)(1)-(2). Finally, if the historical site will be affected, the BLM must
assess whether those potential effects are adverse to the historical site. See 36 C.F.R. § 800.5(a).
An adverse effect exists when “an undertaking may alter, directly or indirectly any of the
characteristics of a historic property that qualify that property for inclusion in the National
register.”

36 C.F.R. § 800.5(a)(1).

Relevant here, one example of an adverse effect is

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“[i]ntroduction of visual, atmospheric, or audible elements that diminish the integrity of the
property’s significant historic features.” 36 C.F.R. § 800.5(a)(2)(v).27

In short, the NHPA

regulations require the BLM to: (i) designate an area to consider -- the APE; (ii) identify
historical sites within that area to consider; (iii) consider whether the undertaking could affect
historical sites within that area to consider; and (iv) determine whether those effects are adverse
to the historical site. See 36 C.F.R. §§ 800.4-.5; Concerned Citizens, 843 F.3d at 906.
The NHPA’s regulations also outline the documentation standards for

NHPA

determinations. See 36 C.F.R. § 800.11. Broadly speaking, “[t]he Agency official shall ensure
that a determination, finding, or agreement under the procedures in this subpart is supported by
sufficient documentation to enable any reviewing parties to understand its basis.” 36 C.F.R.
§ 800.11(a). For a finding that “no historic properties are affected,” the BLM must provide
“[t]he basis for determining that no historic properties are present or affected.” 36 C.F.R.
§ 800.11(d)(3). For a determination of “adverse effect” or “no adverse effect,” the BLM must
detail “a description of the undertaking’s effects on historic properties” and an “explanation of
why the criteria of adverse effect were found applicable or inapplicable, including any conditions
of future actions to avoid, minimize or mitigate adverse effect.” 36 C.F.R. § 800.11(e)(4)-(5).
Few cases have interpreted 36 C.F.R. § 800.11’s documentation standards, but the small
number that have done so require that there be at least some detail to understand the basis for the
agency’s finding.

See, e.g., Neighborhood Ass’n of the Back Bay Inc. v. Federal Transit

Admin., 463 F.3d 50, 60-61 (1st Cir. 2006); Comanche Nation v. United States, 2008 WL
27

Some other examples of an adverse effect that the regulation provides are: (i) physical
destruction or damage to all or part of the property; (ii) removal of the property from its historic
location; and (iii) change of the character of the property’s use. See 36 C.F.R. § 800.5(a)(2)(i)(vii).
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4426621, at *19 (W.D. Okla. Sept. 23, 2008)(DeGuisti, J.). 36 C.F.R. § 800.11’s plain language,
nevertheless, suggests that it is not a demanding standard. See 36 C.F.R. § 800.11(a) (“The
agency official shall ensure that a determination . . . is supported by sufficient documentation to
enable any reviewing party to understand its basis.”). Because the Court is not passing judgment
on the agency’s ultimate determination, i.e., adverse or no adverse effect on a historical site, a
piercing level of detail is unnecessary; all the agency needs to provide is “sufficient
documentation” such that the Court or any other reviewing party can understand the findings’
“basis.” 36 C.F.R. § 800.11(a). This basis includes an “explanation of why the criteria of
adverse effect were found applicable or inapplicable.” 36 C.F.R. § 800.11(e). Accordingly, the
agency’s findings need not be a topic treatise or even an essay, but there needs to be some
explanation for why the agency made the determination it did, and, if the agency determined that
there was an adverse effect, an explanation of “any conditions or future actions to avoid” to
“minimize or mitigate adverse effects.” 36 C.F.R. § 800.11(e)(5).
An agency, however, may substitute the NHPA’s regulations, in whole or in part, if an
“agency program alternative” governs the project.

36 C.F.R. § 800.3(a)(2).

A program

alternative is essentially a contract that establishes alternative procedures that an agency must
follow vis-à-vis certain undertakings.

See 36 C.F.R. § 800.14(a).

In creating a program

alternative, the agency must consult with the Advisory Council on Historic Preservation, the
National Conference of State Historic Preservation Officers, individual SHPOs, or -- as
appropriate -- Indian tribes. See 36 C.F.R. § 800.14(a)(1).
Here, the BLM entered two program alternatives: one in 2004 and another in 2014. See
2004 Protocol at 1-22 (A.R.0169038-59); 2014 Protocol at 1-51 (A.R.0169213-299). Under the

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2004 Protocol, a New Mexico Cultural Heritage Specialist (“CHS”)28 determines the APE on a
case-by-case basis. See 2004 Protocol § VI(D)(1)-(2), at 11-12 (A.R.0169048-49). If the CHS
subsequently determines that an APE contains no historic or only “isolated manifestations” of
historic sites, the undertaking will be approved. 2004 Protocol § VI(F)(1), at 14 (A.R.0169051).
If the CHS determines that there is a potential that an undertaking will damage or destroy a
“cultural resource,” but that site is unlikely to be eligible for NHPA protection, the undertaking
will be approved. See 2004 Protocol § VI(F)(2), at 14 (A.R.0169051). If the CHS determines
that there is a NHPA protected site within the APE, the CHS can make one of three findings: (i)
no effect; (ii) no adverse effect; or (iii) adverse effect. See 2004 Protocol § VI(G)(1)-(4), at 1516 (A.R.01969052-53).

A no-effect finding means that the undertaking will not alter the

characteristics that make a site eligible for the National Register of Historic places. See 2004
Protocol § VI(G)(2), at 15 (A.R.0169052). A no–adverse-effect finding means either that the
undertaking will have a positive effect on the site or that a site, specifically an archaeological
site, can be treated to mitigate the adverse effect, such as through “data collection,” i.e., all of or
the majority of the valuable historic data from an archaeological dig is retrieved. 2004 Protocol
§ VI(G)(3)(a)-(b), at 15-16 (A.R.0169052-53). An adverse effect occurs when an undertaking
changes a site’s characteristics that qualify it for inclusion in the National Register of Historic
Places. See 2004 Protocol § VI(G)(4), at 16 (A.R.0169053).

28

The 2004 Protocol does not define CHS, but, based on context clues throughout the
2004 Protocol, a CHS appears to be a BLM employee tasked with surveying different plots of
land to determine whether: (i) there are any historic sites eligible for inclusion in the National
Historic Register within in a region; and (ii) whether undertakings in that region will affect those
sites. See 2004 Protocol §§ VI(E)(1), VI(F), VI(G)(1) at 13-16 (AR169050-53).
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The 2004 Protocol also establishes its own documentation standards in lieu of 36 C.F.R.
§ 800.11. See 2004 Protocol § V(A)(5)(c), at 5-6 (A.R.0169042-43)(dictating that H-8100-1
Procedures for Performing Cultural Resource Fieldwork on Public Lands in the Area of New
Mexico BLM Responsibilities (A.R.0168854-9017)(“BLM Procedures”) governs documentation
standards for large- and small-scale inventory reports).

Relevant here, for a small-scale

inventory report,29 if there is a historical site within the APE, the CHS must document a
“Determination of Effect” which means that the CHS must
[e]valuate and describe the potential of the undertaking, proposed project, or
action to affect each of the cultural resources identified within the project area or
immediately adjacent to the project area. This discussion should address each
cultural property individually, and should consider the nature of the cultural
property and those attributes that determine its potential for nomination to the
National Register, its location with respect to ground disturbing activities and
other project actions, its location relative to current public access, and its location
relative to changes in access resulting from the completion of the proposed
undertaking.
New Mexico Bureau of Land Management Reporting Standards for Small-Scale Cultural
Resource Inventory Project Reports, at Appendix 3-7 (A.R.0169166)(“BLM Procedures
Appendix”). The Determination of Effect requirement, like 36 C.F.R. § 800.11, does not appear
to require a rigorous analysis, but nonetheless requires a description of the “affect” that each
undertaking will have on historic sites, and a “discussion” of each “cultural property
individually,” which “should consider the nature of the cultural property and those attributes that
determine its potential for nomination to the National Register.” BLM Procedures Appendix at
3-7 (A.R.0169166).

The BLM Procedures, however, also have a “Recommendation”

requirement for its reports, which states:
29

Small-scale inventory report are reports “that cover fewer than 160 acres, or less than
10 linear miles, in total.” BLM Procedures at 1-11 (A.R.0168869).
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The field investigator’s recommendations concerning measures which can be
taken to avoid or mitigate the effects of the undertaking upon properties within
the area of potential environmental effect are invaluable. It may prove impossible
to revisit each documented property, so suggestions on how to protect them must
be as specific as possible.
This section requires the preparer to evaluate whether or not the undertaking
could affect the properties recorded. If the answer is no, then explain why. Be
explicit as to where each site is located in relation to the project’s ground
disturbance, increased public access, etc.
If it is felt that the undertaking could affect any of the sites, then state explicitly
how each property could be impacted. Be specific and relate any suggestions for
avoidance or mitigation of effects to individual site - sketch maps. Discuss how
the specific qualities making individual properties significant could be affected by
the undertaking.
BLM Procedures Appendix at 3-7 (A.R.0169166). Thus, if the undertaking does not affect the
historical site, the CHS “explain[s] why.” BLM Procedures Appendix at 3-7 (A.R.0169166). If
the undertaking could affect any of the historical sites within the APE, the CHS must “state
explicitly how each property could be impacted” and must also “[d]iscuss how the specific
qualities making individual properties significant could be affected by the undertaking.” BLM
Procedures Appendix at 3-7 (A.R.0169166).
The 2014 Protocol is similar to the 2004 Protocol, but also diverges in some important
ways. In general terms, the 2014 Protocol requires that
the BLM will consider potential direct, indirect, and cumulative effects to historic
properties and their associated settings when setting is an important aspect of
integrity, as applicable. The introduction of physical, visual, audible, or
atmospheric elements has the potential to affect the historic setting or use of
historic properties including but not limited to properties of religious and cultural
significance to Indian tribes, and the BLM will take this into account in defining
the limits of an APE for indirect effects.
2014 Protocol at 21 (A.R.0169233).

Unlike the 2004 Protocol, which lets the CHS have

considerable discretion to determine the APE, the 2014 Protocol discusses an APE definition for
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both direct and indirect effects. The APE for direct effects has a fixed boundary depending on
the type of undertaking, and, for oil well pads, it is the well pad’s construction zone plus one
hundred feet on each side of the construction zone’s edges.

See 2014 Protocol at 21

(A.R.0169233); New Mexico State Protocol Appendix B Standard APEs for Direct Effects at 1,
3 (A.R.0169265, A.R.0169267)(“2014 Protocol App. B”). The APE for indirect effects, on the
other hand, “shall include known or suspected historic properties and their associated settings
where setting is an important aspect of integrity,” but identification efforts outside of the Direct
Effect APE for historic sites are subject to the BLM Field Manager’s approval after considering
recommendations from the SHPO. 2014 Protocol at 21 (A.R.0169233). In other words, an
indirect APE exists only if the BLM field manager approves of one after he or she considers
SHPO recommendations. See 2014 Protocol at 21 (A.R.0169233). The 2014 Protocol then
establishes the criteria by which the BLM may classify a historic property as adversely or not
adversely affected:
The BLM will consider the following guidance when determining whether a
finding of No Historic Properties Affected is appropriate. If the inventory does
not find cultural resources of any kind, and/or only identifies isolated
manifestations (isolated occurrences), or only finds ineligible sites, buildings,
structures or objects, then a determination of No Historic Properties is
appropriate. If historic properties are present in the APE but will not be affected
by the undertaking, then a determination of No Historic Properties Affected is
appropriate. If a setting analysis is completed, and a proposed project will not be
visible from the historic property, then a determination of No Historic Property
Affected is appropriate. A determination of No Historic Properties Affected is
generally not appropriate when the undertaking involves ground disturbance
within the boundaries of a historic property.
....
The BLM will consider the following guidance when determining whether a
finding of No Adverse Effect is appropriate.

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a.

If a historic property is being affected by a proposed
undertaking, but the effect will not diminish the aspects of
integrity nor alter, directly or indirectly, any of the
characteristics that make the property eligible for listing in
the NRHP, then a finding of No adverse Effect is
appropriate as defined in 36 CFR 800.5(b). This applies to
all historic properties located within the APE.

b.

If it can be demonstrated that the portion of the property
that will be affected directly or indirectly, lacks integrity,
then a finding of No Adverse Effect is appropriate. For
archaeological sites this will usually involve documentation
on how the archaeological site has been disturbed and a
discussion of how the integrity deposits has been
compromised.

c.

If setting, feeling and/or association are contributing
aspects of integrity for any historic property, and a
proposed undertaking will be visible from the historic
property, but the project elements will not dominate the
setting or attract the attention of the casual observer, the
BLM will document the decision and a finding of No
Adverse Effect is appropriate as provided in 36 CFR
800.5(b).

d.

If the BLM proposes preservation, stabilization,
rehabilitation, or reconstruction of NRHP eligible sites,
buildings, structures, or objects, and the work is consistent
with the Secretary of Interior’s Standards for the Treatment
of Historic Properties (SOI Standards), or the BLM
modifies the undertaking or imposes conditions on the
undertaking to ensure consistency with the SOI Standards,
a finding of No Adverse Effect is appropriate as provided
in 36 CFR 800.5(b)

....
[T]he BLM will consider the following guidance when determining whether a
finding of Adverse Effect is appropriate.
a.

If setting, feeling and/or association are contributing
aspects of integrity for any historic property, and a
proposed undertaking will be visible from the historic
property, and the project elements dominate the setting, a

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finding of Adverse Effect is appropriate as provided in 36
CFR 800.5(a)(1).
b.

If the proposed undertaking, including research excavation
projects, will result in the physical destruction of or damage
to all or part of the historic property, a finding of Adverse
Effect is appropriate as provided in 36 CFR 800.5(a)(1).

2014 Protocol at 26-30 (A.R.0169238-42).

The 2014 Protocol’s documentation standard,

however, is identical to the 2004 Protocol’s documentation standard. See 2014 Protocol at 31
(A.R.0169243). See also BLM Procedures Appendix at 3-7 (A.R.0168975).
The Plaintiffs main contention is that air, light, and noise pollution, and vehicle traffic,
adversely affect Chaco Park and its satellites, and that the BLM failed to take those effects into
account in its analysis. See Diné Brief at 35; Diné Reply at 18. The BLM counters that it has
satisfied its NHPA obligations, because it commissioned a cultural investigation, defined an
APE, “considered foreseeable direct and indirect adverse effects to cultural resources,” and
determined whether the wells would have an adverse effect on the sites. BLM Response at 3738. The Operators also contend that the BLM properly followed the 2004 and 2014 Protocols.
See Operators’ Response at 24-25. The Court concludes that the BLM complied with the
NHPA, because the BLM followed the Protocols it adopted. For each well, it: (i) defined the
APE; (ii) determined if there were any historical sites within that APE; and, (iii) if there were
historical sites, it signaled the historical site’s nature, and documented how effects to that site
could or could not be avoided.
The Court conducts an arbitrary-and-capricious review of the BLM’s process and the
factors it considered when determining if a historical site has been affected. See Concerned
Citizens, 843 F.3d at 909 (“[The Plaintiffs] also fail to establish that the FTA acted arbitrarily or

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capriciously in failing to consider these factors.”). A historical site’s nature affects what factors
that the BLM should consider, and the BLM concluded similarly when it drafted its protocols.
For example, in the 2014 Protocol, the BLM decided that, if a historical site’s setting was what
made it historical, then whether the historical site could be seen from the undertaking would be a
factor -- perhaps, a dispositive factor -- that the BLM should consider when determining whether
a project affects the historical site. See 2014 Protocol at 30 (A.R.0169242). See also 2014
Protocol at 21 (A.R.0169233)(“The introduction of physical, visual, audible, or atmospheric
elements has the potential to affect the historic setting or use of historic properties.”). If the
historical site is archaeological, however, visibility of the oil well has little effect on what makes
the archaeological site have historical value, so the visible effect the oil well has on the
archaeological site need not be considered. See 2014 Protocol at 30 (A.R.0169242). Thus, the
historical site’s nature dictates the factors that the BLM needs to consider, and the APE, in turn,
dictates which historical sites that the BLM must consider.

See 2004 Protocol at 11-12

(A.R.0169048-49); 2014 Protocol at 21 (A.R.0169233).
With those concepts in mind, the Court turns to the Plaintiffs’ contentions. First, they
contend that there is no “record evidence to indicate that BLM ever defined an area for indirect
effects,”30 so the BLM acted arbitrarily and capriciously. Diné Brief at 38. In making this

30

The parties refer to direct and indirect effects, see, e.g., BLM Response at 39, but the
regulations do not define those terms. See 36 C.F.R. § 800.16(i) (defining effect as an
“alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility
for the National Register,” but not defining direct or indirect effects). Based on the parties
briefing, it appears that, by indirect effects, they mean effects such as air, noise, and light
pollution, and visual disturbances -- i.e., whether the project creates an eyesore affecting the
historical site’s setting, environment, or feeling. See, e.g., BLM Response at 39; Diné Reply at
20. Direct effects, in contrast, refer to physical damage to historical properties. See, e.g., Diné
Reply at 20.
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argument, the Plaintiffs attack the first step an agency must take under the NHPA: defining the
APE. Nothing in the protocols, however, requires that the BLM define each well’s indirect APE
separate from the direct APE. Instead, the 2014 Protocol creates a standard direct APE for oil
well pads, which is equal to the area of the well pad and construction zone plus a one-hundred
foot buffer zone on each side of the construction zone’s edges. See 2014 Protocol at 21
(A.R.0169233); 2014 Protocol Appendix B at 1 (A.R.0169265). The 2014 Protocol then states
that an indirect APE “shall include known or suspected historic properties and their associated
settings where setting is an important aspect of integrity,” but the indirect APE definition
subsequently notes that “identification efforts” outside of the direct APE for other historical sites
shall occur only with the BLM field manager’s approval after the BLM manager has considered
recommendations from the BLM cultural resource specialist and the SHPO. 2014 Protocol at 21
(A.R.0169233). In other words, the BLM need only consider historic properties within the direct
APE, unless the BLM field manager, after taking into account certain recommendations, decides
that the BLM needs to broaden its scope to include other “known or suspected properties.” 2014
Protocol at 21 (A.R.0169233). Thus, under the 2014 Protocol, the default APE definition is the
direct APE’s definition -- one-hundred feet within the well pad’s construction zone. To be sure,
the 2014 Protocol still requires the BLM to consider indirect and cumulative effects that the
wells have on those historic sites within the APE, see 2014 Protocol at 21 (A.R.0169233), but
there does not need to be a separate indirect APE defined to satisfy the Protocols. Indeed, the
2014 Protocols expect that the direct and indirect APEs, in most cases, will be the same, and will
diverge only when the BLM field manager approves of a divergence. See 2014 Protocol at 21
(A.R.0169233).

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The 2004 Protocol similarly requires no separate indirect APE definition. It provides:
“NM BLM cultural heritage specialists will determine the area of potential effects that will be
subject to inventory. This determination will define the geographic area within which the
undertaking might directly or indirectly cause changes to the character or use of any historic
properties should they exist.” 2004 Protocol at 11-12 (A.R.0169048). The 2004 Protocol, unlike
the 2014 Protocol, does not create a standard direct APE nor does it create a standard indirect
APE. The definition turns on what appears to be the CHS’ case-by-case determination. See
2004 Protocol at 11 (A.R.0169048). The 2004 Protocol makes no distinction between direct or
indirect APE, so, based on its plain language, the indirect APE does not need to be separately
defined. Accordingly, it is not arbitrary and capricious that the BLM did not separately define
the indirect APE from the direct APE.31
Second, the Plaintiffs cite the 2014 Protocol’s language, which states that, “[i]n defining
the APE, the BLM will consider potential direct, indirect, and cumulative effects to historic
properties and their associated setting when setting is an important aspect of integrity, as
applicable” to argue that the BLM needed to consider the wells’ effects on Chaco Park and its
satellites. Diné Brief at 37 (quoting 2014 Protocol at 21 (A.R.0169233)). See Diné Brief at 3839. Their argument pivots on whether that language means that the BLM, in defining the APE,
had to consider and document their consideration of the historic sites many miles away from the
wells. The Court concludes that the 2014 Protocol has no such requirement. Rather, as already
explained, efforts to identify historic sites that could be indirectly affected, and thus need to be

31

The Court also notes that the regulations do not require the indirect APE to be defined
separately from the direct APE. See 36 C.F.R. §§ 800.4(a)(1); 800.16(d).

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considered, are executed at the BLM field manager’s discretion with the BLM cultural resource
specialist’s and the SHPO’s recommendations. See 2014 Protocol at 21 (A.R.0169233). The
2014 Protocol grants the BLM some flexibility in defining the APE, which makes sense, because
the indirect APE is bound to be different for different sites. If, for example, a mountain stands
between a well and a historic site, considering the well’s indirect visual effects on that historic
site does not make sense. The NHPA regulations recognize -- perhaps for that reason -- that the
APE needs to be flexible. See 36 C.F.R. § 800.16 (“The area of potential effects is influenced by
the scale and nature of an undertaking and may be different for different kinds of effects caused
by the undertaking.”). The 2014 Protocol echoes that sentiment by granting the BLM some
discretion to determine, on a case-by-case basis, how far out it must look for historic sites when
defining the APE. See 2014 Protocol at 21 (A.R.0169233). See also Valley Community
Preservation Com’n v. Mineta, 373 F.3d 1078, 1091 (10th Cir. 2004)(“Establishing an area of
potential effects requires a high level of agency expertise and as such, the agency’s
determination is due a substantial amount of discretion.”).
That the BLM may not have ever considered Chaco Park and its satellites is not arbitrary
and capricious, because (i) the 2014 Protocol does not require the BLM to consider those sites;
and (ii) the Court cannot say that the BLM should have considered those sites given that Chaco
Park and its satellites are more than ten miles away for most of the wells. See Location of APDs
Challenged in DinéCARE v. Zinke 15-cv-209 (D.N.M.) Administrative Record Data at 1, filed
June 6, 2017 (Doc. 113-1)(“APD Map Aff.”).32 Although some oil wells might be visible from

32

Although the map constructed in the APD Map Aff. is not in the record, the map was
constructed entirely from data in the record. See APD Map Aff. ¶¶ 5-6, at 2. The Court
accordingly may consider the APDs locations with relation to Chaco Park and its satellites.
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the historic sites, the Court could locate no evidence in the record demonstrating that the wells
actually are visible from those sites.33 The wells’ distance from Chaco Park and its satellites also
suggests that noise and light pollution would have minimal effect on those historic sites. To be
sure, noise can travel a distance, but any noise that would carry miles to the historical site would
not be so much that it was arbitrary and capricious for the BLM to exclude Chaco Park and its
satellites from the APE. There is already ambient noise from traffic into the park and traffic on
Highway 550 -- the area where most of the well pads are located. The same analysis applies for
light pollution. Finally, the Court cannot say that the 2014 Protocol is arbitrary and capricious for
granting the BLM discretion in determining what sites it needs to consider for indirect effects,
because the regulations also suggest that the APE should be defined flexibly. See 36 C.F.R.
§ 800.16.
Third, the Plaintiffs argue that the BLM violated the 2014 Protocol, because the BLM did
not consult with the SHPO to define the indirect effects to historic properties. See Diné Brief at

33

The Court notes that there are some well pad photographs in the record, but none of the
ones the Court located were taken from where a historical site was situated. See Letter from
WildEarth Guardians to Jesse Juen, State Director, Bureau of Land Management and Gary
Torres, Field Manager, Farmington Field Office, Bureau of Land Management at 4-6 (dated
October 27, 2014)(A.R.01678403-05)(“WildEarth Letter”). Some of the photographs were aerial
pictures and others were taken close to the well pad. See WildEarth Letter at 4-6
(A.R.01678403-05). The Court also notes that the Plaintiffs attach pictures of the well pads in
several of their declarations, but, again, none are taken from a historic site. See Nichols Supp.
Decl. ¶¶ 9-10, at 5-11; Eisenfeld Supp. Decl. ¶ 8, at 4-6. Rather the pictures are taken from
roads into Chaco Park, see Nichols Suppl. Decl. ¶¶ 9-10, at 5-11, or the supplemental declaration
does not say from where the pictures are taken, see Eisenfeld Suppl. Decl. ¶ 8, at 4-6. Moreover,
even if the pictures in the supplemental declaration were taken from the historic sites, the Court
cannot consider the declarations for substantive evidence, because those pictures are outside the
administrative record.
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38. In so arguing, the plaintiffs cite language from the 2014 Protocol’s Appendix B, which
states:
In certain circumstances, even though an undertaking may have a standard APE
listed below, the Field Manager, at the recommendation of the cultural resource
specialist, may have justification to require a larger APE. If an APE larger than
the minimums below is being recommended, SHPO consultation is not required.
For actions where a field office is suggesting a smaller APE for an undertaking
listed below, SHPO consultation will be required pursuant to Section IV.B. For
any other APEs (i.e. undertakings not listed here, visual effects APE, etc.), the
cultural resource specialist will consult with SHPO pursuant to Section IV.B.
2014 Protocol Appendix B at 1 (A.R.0169265)(emphasis in original). The Plaintiffs read the
language -- “[f]or any other APEs . . . the cultural resource specialist will consult with the
SHPO,” 2014 Protocol Appendix B at 1 (A.R.0169265)(emphasis in original) -- to mean that the
BLM must consult with the SHPO “to define an APE for indirect effects,” and, because there is
no evidence that the BLM ever consulted with a SHPO, the BLM violated the Protocol. See
Diné Brief at 37-38. The Court agrees with that analysis to a point. It is true that the 2014
Protocol requires the BLM field manager to consider recommendations from the SHPO when
that field manager is determining whether identification efforts for historic properties outside of
the direct APE are required. See 2014 Protocol at 21 (A.R.0169233). The Plaintiffs’ assumption
is, however, that the BLM Field Manager must conduct that larger APE analysis for every well,
but the 2014 Protocol does not require that analysis; rather, it requires such an analysis only at
“the approval of the BLM field manager.” 2014 Protocol at 21 (A.R.0169233). That language
suggests that a larger APE analysis is an exception to the typical rule. A SHPO consultation is
thus not mandatory for every well, but only for wells that the BLM Field Manager is considering
expanding the APE. Accordingly, the BLM’s failure to consult the SHPO for every well does
not, by itself, demonstrate that the BLM acted contrary to law or arbitrarily and capriciously.
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Fourth, the Plaintiffs contend that the BLM violated the 2014 Protocol, because a SHPO
consultation is required for every “complicated or controversial” undertaking. According to the
Plaintiffs, all of the wells at issue are controversial and there is no record of a SHPO
consultation, so the BLM violated the 2014 Protocol. See Diné Brief at 37-38. The Plaintiffs do
not explain why the wells are controversial, see Diné Brief at 37-38; presumably, they are
controversial, because the Plaintiffs have challenged them. The Court concludes that the 2014
Protocol’s reference to “complicated or controversial” does not apply, merely because a plaintiff
group creates a controversy by challenging the wells. Such a definition would suggest that the
BLM should consult a SHPO on every well, because any well could be subject to legal
challenge. If the 2014 Protocol’s intent was to require the BLM to always consult a SHPO, it
would have said as much instead of creating a scheme whereby SHPO consultation is the
exception instead of the rule. See 2014 Protocol at 21 (A.R.0169233). Because the Plaintiffs
have not demonstrated how any of the wells are otherwise controversial, the Court concludes that
the wells are not controversial, so the BLM is not required to consult a SHPO for that reason.
The Plaintiffs’ final contention is that the BLM did not consider the indirect or
cumulative effects the wells would have on Chaco Park and its satellites. See Diné Brief at 36,
40. The BLM need consider those indirect or cumulative effects only if those historical sites
were within the various wells’ APE. See 2014 Protocol at 27-28 (A.R.0169239-40); 2004
Protocol at 15 (A.R.0169052). After reviewing the records’ cultural resource reports, the Court
concludes that Chaco Park and its satellites are not within any of the wells’ APEs, see, e.g., A
Cultural Resources Survey of WPX Energy Production LLC’s Chaco 2306-18M Number
240H/256H Dual Well Pad, Pipeline, and Access Road at 4 (dated March 21,

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2014)(A.R.0168011)(“Chaco 2306-18M Report”), so the BLM did not act arbitrarily and
capriciously when it did not explicitly consider indirect effects to those properties within its
cultural resource reports. The Court also concludes that the records’ cultural resources reports
meet the 2004 Protocol’s and the 2014 Protocol’s documentation standards. Each cultural
resource report and its accompanying cultural resource record of review describes each historical
site within the APE with enough detail that the Court can discern the historical site’s nature, as
required.

See 2014 Procedures at Appendix 3-7 (A.R.0168975).

The sites identified are

archaeological in nature. See, e.g., Chaco 2306-18M Report at 4(A.R.0168011)(identifying the
historical site as qualifying for the national registry of historic places under criteria D, which
means it is a site that has yielded or is likely to yield information important in history). See also
New Mexico Cultural Resource Information System at 24 (A.R.0169118)(defining criteria D
under the national registry of historic places as a site that “has yielded, or is likely to yield,
information important in prehistory or history,” and noting that “[o]bviously most archaeological
sites will fall under criteria ‘d.’”). Those reports then describe why the BLM has determined that
the well pad will not affect those sites. See, e.g., Chaco 2306-18M Report at 4; Cultural
Resource Record of Review for Chaco 2306-18M at 1-2 (A.R.0168012-13)(“Chaco 2306-18M
CRROR”). Most often, the reason is that the site can be avoided during construction, thus
eliminating or severely mitigating the risk of physical damage. See, e.g., Chaco 2306-18M
Report at 4; Chaco 2306-18M CRROR at 1-2. As explained in the 2014 Protocol, a project’s
adverse effect on an archaeological site is limited to whether the project could physically destroy
or damage the archaeological site. See 2014 Protocol at 30 (A.R.0169242). Such a limitation
makes sense, as the archaeological site’s historical value stems from the historical data

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recoverable from the location and not the historical property’s setting or feeling associated with
it. As the Court mentioned previously, the documentation standard is not a high standard, and
the Court concludes that the record documentation for these archaeological sites meets the low
bar that the documentation standard erects.34 Accordingly, the BLM did not violate the NHPA.
VII.

IF THE COURT WERE TO CONCLUDE THAT THERE WERE A NEPA
VIOLATION, VACATUR AND REMAND, BUT NOT A PERMANENT
INJUNCTION, WOULD BE THE PROPER REMEDY, AND IF THE COURT
WERE TO CONCLUDE THAT THERE WERE A NHPA VIOLATION,
REMAND WITHOUT VACTUR, IN LIEU OF A PERMANENT INJUNCTION,
WOULD BE THE APPROPRIATE REMEDY.
If the Court concluded that there were a NEPA violation, it would conclude that vacatur

would be the proper remedy, but a permanent injunction would not be. Vacatur with remand, as
opposed to remand without vacatur, of the 350 wells’ APDs is proper, because the seriousness of
the BLM’s violation outweighs the potential harm the operators would suffer. An injunction
precluding the BLM from approving more wells would be inappropriate, however, as the
34

The Court previously determined that some of the cultural resource reports did not meet
the requisite documentation standards.
See Order at 4, filed March 31, 2018
(Doc. 128)(“Order”). After having an opportunity to review fully the case’s voluminous record,
the Court concludes that the BLM meets the required documentation standards. The Court’s
previous determination was based on some cultural resource reports, which state that historical
sites were within an APE, but then give no explanation why the BLM concluded that the well
would not affect that historical site. See Cultural Resources Survey of Encana Oil and Gas
(USA) Inc.’s Escrito D34-2409 Number 01H/02H/03H/04H Multiple Well Pad, Access Road,
and Pipeline at 4 (dated November 19, 2012)(A.R.0167456)(“Escrito D34-2409 Report”). For
example, in the Escrito D34-2409 Report, it notes that there are four historical sites within the
APE, two of which are eligible for inclusion in the national register of historic places, yet does
not explain why it determined that the well pads would not adversely affect those historic sites.
See Escrito D34-2409 Report at 4. With an opportunity to review fully the record, the Court
uncovered accompanying Cultural Resource Record of Review Documents, which detail the
reasoning for the BLM’s no-adverse determination. See Cultural Resource Record of Review for
Escrito D34-2409 at 1-2 (A.R.0167457-58)(noting that erected physical barriers would protect
the historic sites, so the project could proceed). The combined reports satisfy the documentation
standards.

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presumption is in favor of remand with vacatur. Moreover, on balance, given the harms alleged,
vacatur would better serve the public. On the other hand, if there were just a NHPA violation,
remand without vacatur would be appropriate, because the harms alleged are purely aesthetic.
A.

VACATUR OF THE WELLS’ APDS IS PROPER.35

Vacatur is the usual remedy for an agency action that is arbitrary, capricious, or contrary
to law. See 5 U.S.C. § 706(2)(A); DinéCitizens Against Ruining Our Environment v. United
States Office of Surface Mining Reclamation and Enforcement, 2015 WL 1593995, at *1 (D.
Colo. April 6, 2015)(Kane, J.)(“When a federal agency fails to comply with its obligation to
consider the environmental impacts of its action before undertaking a ‘major federal action,’ the
normal remedy is vacatur.”)(“Diné III”). “[I]n some cases,” however, “equitable principles
counsel in favor of remand without vacatur.” Diné III, 2015 WL 1593995, at *2 (citing Pacific
Rivers Council v. United States Forest Service, 942 F. Supp. 2d 1014, 1021 (E.D. Cal.
2013)(England, Jr., C.J.)). See Allied-Signal, Inc. v. U.S. Nuclear Regulatory Com’n, 988 F.2d
146, 150 (D.C. Cir. 1993)(“An inadequately supported rule, however, need not necessarily be
vacated.”). Vacatur is proper as opposed to remand when the seriousness of the rule-making’s
deficiency outweighs the harm that might arise from vacating the agency’s action. See AlliedSignal, Inc. v. U.S. Nuclear Regulatory Com’n, 988 F.2d at 150-51; California Communities
Against Toxics v. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012).

Reviewing the cases, the

presumption is in favor of vacatur instead of remand without vacatur. See e.g., Humane Soc. of
U.S. v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010)(“In rare circumstances, when we deem it
35

This analysis, which is already contingent on the Court coming to a different
conclusion, does not apply to the APD challenges that the Court concluded were moot or were
not challenging final agency action. The Plaintiffs’ challenges to those wells’ APDs would fail
even if the Court determined that the BLM violated NEPA or the NHPA.
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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.”); Heartland Regional Medical Center v.
Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009). The statute’s mandatory language supports that
proposition. See 5 U.S.C. § 706(2)(A)(“The reviewing court shall . . . hold unlawful and set
aside agency action.”)(emphasis added).
Here, had the Plaintiffs made a showing that the BLM violated NEPA, because the EIS
did not consider the significant effects resulting from these wells that use horizontal drilling and
fracking techniques, the APD deficiency would be serious.

Hundreds of wells would be

operating without a robust EIS level analysis of horizontal drillings’ effects on the environment.
First, there would be unconsidered impacts to water consumption -- perhaps to the tune of
hundreds of millions of gallons of freshwater -- which is of particular consequence in a desert.
See RMP/EIS at 4-14, 4-15 (A.R.0001024-25); see 2014 RFDS at 23-24 (A.R.0173848-49).36
There would also be unconsidered impacts to the surface area, equaling about 2,000 acres, and
the air quality, equaling around several thousands of tons of emissions per year. See Reply Brief
at 10-11, nn.15, 17 (citing e.g. Environmental Assessment DOI-BLM-NM-F010-2014-0004, at 7

36

The Court calculates the hundreds of millions of gallons figure by assuming that the
BLM did not consider the horizontal wells’ effects and assuming that some of the Plaintiffs’
reply brief figures are correct. See Reply Brief at 10. Thus, for 350 horizontal wells not
considered multiplied by 1,020,000 gallons per well yields 357 million gallons. As already
noted, see supra 95, n.22, the Court concludes that the gallons per well figure is likely smaller,
but even with a smaller number, the record supports a hundreds of millions of gallons figure. see
2014 RFDS at 23-24 (A.R.0173848-49)(noting a potential 25% per gallon per well reduction by
reusing water, which would yield 267 million gallons per well). If the Court were to use the
well number that the Plaintiffs want it to use -- 3,960 -- the figure balloons to 4 billion gallons.
The Court also notes that the water used may not all be pure freshwater. See 2014 RFDS at 23
(A.R.0173844)(noting that advances in technology may allow oil companies to use a low saline
water for its fracking purposes).

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(A.R.0047459); (A.R.14456); 2003 RMP/EIS at 4-58 - 4-61).37 The Court notes that the harm
from unconsidered environmental impacts is more than just the direct environmental impacts.
The loss of water from horizontal drilling is the same regardless whether the BLM considered
that loss of freshwater. Another very real harm from unconsidered effects is the increased risk
that these unconsidered effects could cause some more dire unforeseen harm. For example, the
increased use of hundreds of millions of gallons of water could impact New Mexico’s desert or
the San Juan Basin in some way that is not reversible. Thus, in weighing the rulemaking’s
deficiency, the Court must also consider the risk of unforeseen harms. See Diné III, 2015 WL
1593995, at *2 (“[I]t is apparent that these mercury-related indirect effects could have significant
impacts on threatened and endangered species in the area.”).
These rulemaking’s deficiencies must then be balanced against the harms arising from
vacating 350 APDs. The harm stemming from vacatur would primarily be economic. The
operators would lose profits from the dormant wells. While this harm is not trivial -- as the
Court analyzed previously, see Diné, 2015 WL 4997207, at *49 -- the Court concludes that, had
the Plaintiffs prevailed on the merits, the rulemaking’s deficiencies would be more serious than
lost profits, thus warranting vacatur.38

It is unclear the amount of lost profits which the

Operators would sustain, but it is likely that the amount would be “serious” -- perhaps hundreds
37

These numbers are assuming, again, that the BLM did not consider the horizontal wells’
effects and assuming that some of the Plaintiffs’ reply brief figures are correct. Even if the
numbers are lower, as the Court concludes above, they would likely still be around a thousand
acres and several thousand tons of emissions per year.
38

The Court notes that, in conducting this balancing test, the Court is not -- as the API
intervenors suggest is appropriate, see Operator Response at 18-20 -- weighing all of the benefits
of the oil-and-gas industry on the one hand and the environmental effects of horizontal drilling
on the other. Rather, the Court must determine the harm that vacating 350 APDs would inflict
on the operators.
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of thousands or millions of dollars. Diné, 2015 WL 4997207, at *49. Although this harm would
be serious, it would not stop the Operators from continued operation in the region with their
vertical wells, and there is a chance -- perhaps even a good chance -- that, after the BLM cured
its NEPA violation, the wells would be approved, and the wells would produce a profit. The
delay in profit certainly imposes a cost, in that the price of oil could drop or another unforeseen
factor could affect profits, but this cost is likely less than the upper range of the millions of
dollars of loss that the Operators project.
Moreover, as at least one other district court has recognized, in the oil-and-gas industry,
the risk of “lost profits and industrial inconvenience” is “the nature of doing business,” because it
is an industry “fraught with bureaucracy and litigation.” Standing Rock Sioux Tribe v. U.S.
Army Corps of Engineers, 282 F. Supp. 3d 91, 104 (D.D.C. 2017)(Boasberg, J.)(“Standing
Rock”). “By nonetheless, proceeding with its venture, the company assumed some risk of
economic disruption.” Standing Rock, 282 F. Supp. 3d at 104. Although vacatur would impose
a cost on the Operators, it is not necessarily an unexpected cost, which lessens the weight the
Court will give it. See Standing Rock, 282 F. Supp. 3d at 106 (“In sum, although the Court
concludes that there is likely to be some economic disruption from vacatur, this factor does not
weigh heavily in the Defendants’ favor.”)(emphasis in original). An expected cost, for example,
is far less likely to cause a company to default on its obligations. Although it may be serious, the
Court concludes that the lost profits concern is not so great to overwhelm the environmental
concern, had the Court concluded that the BLM violated NEPA. On balance, and with the
presumption in favor of vacatur, the rulemaking’s deficiencies outweighs the potential economic
harm, so vacatur would be warranted. See Standing Rock, 282 F. Supp. 3d at 104-106; Public

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Employees for Environmental Responsibility v. United States Fish and Wildlife Service, 189
F. Supp. 3d 1, 3 (D.D.C. 2016)(Bates, J.)(“Absent a strong showing by FWS that vacatur will
unduly harm economic interests . . . the Court is reluctant to rely on economic disruption as the
basis for denying plaintiffs the injunctive relief they seek.”); Diné III, 2015 WL 1593995, at *2-3
(concluding that vacatur was warranted even with $400,000.00 per month economic harm,
because the challenged mine could significantly impact endangered species in the region). See
also California Communities Against Toxics v. EPA, 688 F.3d at 994 (concluding vacatur was
not warranted, because stopping the project would be “economically disastrous” as it was “a
billion-dollar venture.”).39
In contrast to the NEPA violation, the environmental harms associated with the NHPA
violation are far less severe. The Plaintiffs allege that air, light, and noise pollution adversely
affect historic sites. See Diné Response at 35. Although those are cognizable harms, the BLM’s
failure to consider how air, light, and noise pollution might affect Chaco Park and its satellites is
unlikely to lead to irreparable harm or even serious harm to the historic property in the interim
between this order and the agency’s updated decision.40 All of those individuals who visit those
historic sites might be inconvenienced, or their experience might be less enjoyable, but that harm
39

The Operators argue that vacatur is not warranted, even if there is a NEPA violation,
because the BLM’s “latest EAs hav[e] the most robust cumulative impact analysis . . . and
address the potential future Mancos shale drilling from the 2014 RFD.” BLM Response at 27.
Although it may be true that the latest EAs have robust analyses, that fact does not bear greatly
on the vacatur balancing analysis. EAs only comment on the environmental impact of particular
wells. There is no indication that the newest EAs are EAs for the wells challenged.
40

Air pollution can certainly be a serious harm. In addition to causing climate change, it
can also cause health issues. See Massachusetts v. EPA, 549 U.S. 497, 523 (2007); Whitman v.
American Trucking Assocs., 531 U.S. 457, 465 (2001). In this context, however, the air
pollution is alleged to harm the historic site’s setting, or the aesthetic, which is a much less
severe harm than the general harm that air pollution causes.
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does not outweigh the potential hundreds of thousands to millions of dollars of economic harm
the operators will endure. Accordingly, remand without vacatur would be appropriate for the
NHPA violation.
B.

A PERMANENT INJUNCTION IS UNWARRANTED.

As the presumption is in favor of remand with vacatur vis-à-vis remand without vacatur,
so is the presumption in favor of vacatur vis-à-vis a permanent injunction. See Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 165-66 (2010)(“If a less drastic remedy (such as partial or
complete vacatur of APHIS’s deregulation decision) was sufficient to redress respondents’
injury, no recourse to the additional and extraordinary relief of an injunction was warranted.”);
American Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001)(“If an
appellant . . . prevails on its APA claim, it is entitled to relief under that statute, which normally
will be a vacatur of the agency’s order.”); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78
(D.D.C. 2010)(Lamberth, J.). The factors to consider for a permanent injunction are similar to a
preliminary injunction’s factors:
A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are inadequate to
compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Turning first to irreparable harm, as the Court previously determined in Diné, 2015 WL
4997207, at *46-48, the Plaintiffs’ identified NEPA harms are irreparable, id. at *48
(“Environmental injury . . . is often permanent or at least of long duration.”). The Court discerns
nothing to have happened in the interim to change this determination. Accordingly, this prong

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counsels in favor of a permanent injunction.

Similarly, the second prong also favors an

injunction. See Diné, 2015 WL 4997207, at *48 (“Environmental injury, by its nature, can
seldom be adequately remedied by money damages.”).
In contrast, the harm alleged under the NHPA -- noise, air, and light pollution causing an
aesthetic injury to the historic site -- is not irreparable. To stop the noise all the operators have to
do is strop drilling. Similarly, to stop the light pollution, the riggers need only turn off the lights.
Although air pollution is typically conceived of as an irreparable environmental harm, the air
pollution here, as explained above, is an aesthetic harm affecting the historic site’s setting or
feeling associated with it. The Court conceives of this harm in the form of smog or a hazy day.
Such air pollution would decrease the aesthetic of a site like Chaco Park. This type of air
pollution, however, tends to be localized and can be alleviated if the local machinery causing it is
stopped. Accordingly, the Court concludes that there is no irreparable harm vis-à-vis the NHPA.
Monetary damages have also been found -- at least at common law -- appropriate for aesthetic
injuries, depending on their severity. For example, nuisance provides money damages for
noxious odors. See Safe Streets Alliance v. Hickenlooper, 859 F.3d 865, 886 (10th Cir. 2017).
Monetary damages, accordingly, can address the noise, air, and light pollution aesthetic injuries
at issue here.
With NEPA, although the first two factors favor a permanent injunction, the balance of
hardships do not favor an equitable solution, given the other available remedy -- vacatur. The
balance of hardships have already been addressed supra, and the Court determines that the
balance favored the Plaintiffs.

Nevertheless, the balance of hardships do not counsel a

permanent injunction -- “a drastic and extraordinary remedy,” Monsanto Co. v. Geertson Seed

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Farms, 561 U.S. at 165, because the Court perceives that vacatur will sufficiently redress the
respondent’s injury. Vacatur, like a permanent injunction, stops the wells from inflicting any
more environmental harm. Vacatur is more appropriate, however, because the source of the
statutory injury flows from the BLM’s failure to consider horizontal drilling’s environmental
effects. A permanent injunction would preclude the oil wells from ever producing again unless
and until the Plaintiffs secured an order modifying the injunction with the Court. In contrast,
vacatur stops the wells until the agency reconsiders its previous determination. Given that the
harm flows from the agency’s failure to consider, a permanent injunction, which stops the
agency from correcting its mistake until it comes back to the court is not tailored to the harm
alleged.

Accordingly, the Court concludes that this factor does not weigh in favor of a

permanent injunction for the NEPA violation. This factor, for this case, is dispositive for the
Court given the Supreme Court’s admonition that, if vacatur is better tailored to the harm, it is
the appropriate remedy in lieu of a permanent injunction. See Monsanto Co. v. Geertson Seed
Farms, 561 U.S. at 165. In terms of the NHPA violations, the balance of harms factor does not
counsel for vacatur, see supra at 127-28, so the Court would also conclude that a permanent
injunction is inappropriate.41
IT IS ORDERED that the requests in the Plaintiffs’ Opening Merits Brief, filed April
28, 2017 (Doc. 112), are denied. All of the Plaintiffs’ claims are dismissed with prejudice.

41

As the Court noted previously, in this case, the balance of equities and the public
interest prongs collapse into the same inquiry. See Diné, 2015 WL 4997207, at *50.
Accordingly, it concludes that vacatur would be the proper remedy for the NEPA violation and
remand without vacatur would be the proper remedy for the NHPA violations.
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________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Kyle Tisdel
Western Environmental Law Center
Taos, New Mexico
--and-Samantha Ruscavage-Barz
WildEarth Guardians
Santa Fe, New Mexico
Attorneys for the Plaintiffs
Jeffrey H. Wood
Acting Assistant Attorney General
Justin Alan Torres
Trial Attorney
Environment and Natural Resources Division
United States Department of Justice
Washington, D.C.
-- and -Clare Marie Boronow
Trial Attorney
Environment and Natural Resources Division
United States Department of Justice
Denver, Colorado
Attorneys for the Defendants
Hadassah M. Reimer
Holland & Hart LLP
Jackson, Wyoming
--and--

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Bradford C. Berge
Holland & Hart LLP
Santa Fe, New Mexico
--and-John Fredrick Shepherd
Holland & Hart LLP
Denver, Colorado
Attorneys for Intervener-Defendants WPX Energy Production, LLC; Encana Oil & Gas
(USA) Inc.; BP America Production Company; ConocoPhillips Company; Burlington
Resources Oil & Gas Company LP; and Anschutz Exploration Corporation

Michael R. Comeau
Jon J. Indall
Joseph E. Manges
Comeau, Maldegen, Templeman & Indall, LLP
Santa Fe, New Mexico
--and-Steven Rosenbaum
Bradley Ervin
Covington & Burling, LLP
Washington, D.C.
--and-Andrew Schau
Covington & Burling, LLP
New York City, New York
Attorneys for Intervenor-Defendant American Petroleum Institute

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