Southern Utah Wilderness Alliance et al v. United States Department of the Interior et al
Filing
71
MEMORANDUM DECISION AND ORDER granting in part and denying in part 41 Motion to Dismiss for Lack of Jurisdiction ; granting in part and denying in part 41 Motion to Dismiss for Failure to State a Claim ; granting in part and denying in part 42 Motion to Dismiss for Failure to State a Claim ; granting in part and denying in part 42 Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge Evelyn J. Furse on 7/17/15 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SOUTHERN UTAH WILDERNESS
ALLIANCE; THE WILDERNESS SOCIETY;
and NATURAL RESOURCES DEFENSE
COUNCIL,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ AND
INTERVENOR-DEFENDANT’S
MOTIONS TO DISMISS (ECF No. 41, 42)
Plaintiffs,
v.
Case No. 2:13-cv-01060-EJF
UNITED STATES DEPARTMENT OF THE
INTERIOR; UNITED STATES BUREAU OF
LAND MANAGEMENT; JUAN PALMA,
Utah State Director; JERRY KENCZKA,
Assistant Vernal Field Office Manager; and
KENT HOFFMAN, Deputy State Director,
Magistrate Judge Evelyn J. Furse
Defendants,
and
GASCO ENERGY, INC.,
Intervenor-Defendant.
Defendants United States Department of the Interior, United States Bureau of Land
Management, Juan Palma, Jerry Kenczka, and Kent Hoffman (collectively, the “BLM”) and
Intervenor-Defendant Gasco Energy, Inc. (“Gasco”) move the Court1 to dismiss Plaintiffs
Southern Utah Wilderness Alliance, The Wilderness Society, and Natural Resources Defense
Council’s (collectively, “SUWA’s”) Second Amended Complaint for lack of standing. (ECF
No. 41, 42.) Alternatively, the BLM and Gasco argue the Court should dismiss part of SUWA’s
1
On May 7, 2014, in accordance with United States District Court for the District of Utah
General Order 07-001 and Federal Rule of Civil Procedure 73, the parties consented to have this
case decided by the undersigned Magistrate Judge. (ECF No. 26.)
1
Second Amended Complaint for failure to state a claim. (Id.) SUWA alleges the BLM violated
the National Environmental Policy Act (“NEPA”) and the Fair Land Policy and Management
Act (“FLPMA”) when it approved Gasco’s Uinta Basin oil and gas development projects without
following proper procedures. (ECF No. 31.)
I. STANDARD OF REVIEW
The parties dispute what standard of review the Court should use in evaluating the
jurisdictional challenges to SUWA’s Second Amended Complaint at the motion to dismiss stage.
Although all parties agree SUWA bears the burden of proof, the parties disagree on what the
Court should accept as true. (BLM’s Mot. to Dismiss 7, ECF No. 42; Gasco’s Mot. to Dismiss
11, ECF No. 41; Opp’n x, ECF No. 54.) The BLM and Gasco both argue that in this
circumstance the Court cannot “‘presume the truthfulness of the complaint’s factual
allegations.’” (Gasco’s Mot. to Dismiss 11 (citation omitted), ECF No. 41; see also BLM’s Mot.
to Dismiss 7 (citation omitted), ECF No. 42). SUWA argues the exact opposite. (Opp’n ix, ECF
No. 54.)
Holt v. United States distinguishes between two types of Rule 12(b)(1) motions to
dismiss:
[A] facial attack on the complaint’s allegations as to subject matter jurisdiction
questions the sufficiency of the complaint. In reviewing a facial attack on the
complaint, a district court must accept the allegations in the complaint as true. . . .
[A] party [however] may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends. When
reviewing a factual attack on subject matter jurisdiction, a district court may not
presume the truthfulness of the complaint’s factual allegations.
46 F.3d 1000, 1002–03 (10th Cir. 1995) (citations omitted); see also 5B Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 1350 at 147–198 (3d ed. 2015). In this case,
neither the BLM nor Gasco puts forth any evidence to suggest SUWA makes false allegations.
2
Rather, the BLM and Gasco make facial attacks challenging the sufficiency of SUWA’s
allegations, arguing that those allegations, without more, do not state Article III standing. Thus,
the Court will accept the allegations in SUWA’s Second Amended Complaint as true.
To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must have enough
allegations of fact, taken as true, ‘to state a claim to relief that is plausible on its face.’” Kan.
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Additionally, a court must “assess whether the plaintiff’s
amended complaint alone is legally sufficient to state a claim for which relief may be granted.”
Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135–36 (10th Cir.
2014) (citation and internal quotation marks omitted).
II. FACTS
With this standard of review, the Court recites the facts as alleged in SUWA’s Second
Amended Complaint.
In February 2006, the BLM published a notice of intent to prepare an environmental
impact statement regarding Gasco’s proposal for natural gas drilling, exploration, and
development in the Uinta Basin (“EIS”). (Second Am. Compl. ¶¶ 2, 78, ECF No. 31.) Gasco’s
proposal (the “Uinta Basin project”) includes approximately 206,826 acres, (BLM’s Mot. to
Dismiss Ex. A, ECF No. 42-1 at 7), 2 bounded by the Green River on the east, Monument Butte
oil field on the north, Ashley National Forest on the west, and Nine Mile Canyon on the south,
2
Exhibit A to the BLM’s Motion to Dismiss is the Record of Decision for Gasco’s Uinta Basin
Project (“ROD”). “A district court may consider documents (1) referenced in a complaint that
are (2) central to a plaintiff’s claims, and (3) indisputably authentic when resolving a motion to
dismiss without converting the motion to one for summary judgment.” Thomas v. Kaven, 765
F.3d 1183, 1197 (10th Cir. 2014). The ROD qualifies for the Court’s consideration under this
standard.
3
(Second Am. Compl. ¶ 34, ECF No. 31). SUWA submitted comments in response to the BLM’s
notice of intent. (Id. ¶ 78.)
In October 2010, the BLM released a draft EIS analyzing the proposed action and four
alternatives. (Id. ¶ 79.) The BLM preferred the proposed action. (Id.) SUWA, and many
others, including the Environmental Protection Agency, submitted comments identifying
inadequacies in the draft EIS. (Id. ¶¶ 80–87.) In March 2012, the BLM released the final EIS
analyzing a new alternative that the BLM preferred. (Id. ¶¶ 91, 93.) The preferred alternative
allows Gasco to drill up to 1298 new gas wells from 575 new well pads, build 198 miles of roads
and 316 miles of pipelines, expand two existing compressor facilities, and construct a new
evaporative facility with up to twelve evaporative basins. (BLM’s Mot. to Dismiss Ex. A, ECF
No. 42-1 at 8, 16–17.) The BLM estimated the Uinta Basin project would disturb a total of 3604
acres over its lifespan. (Id. at 16.) Shortly after the release of the final EIS, SUWA sent the
BLM letters regarding the agency’s failure to consider three recently released guidance
documents and other environmental issues. (Second Am. Compl. ¶¶ 98–112, ECF No. 31.)
The BLM issued the Record of Decision approving its preferred alternative for the Uinta
Basin project (“ROD”) in June 2012. (Id. ¶¶ 113–14.) Although the BLM made no substantive
changes to its preferred alternative, (id. ¶ 114), the ROD requires Gasco to obtain additional
approval before starting any surface-disturbing activities, thus triggering another round of NEPA
analysis, (BLM’s Mot. to Dismiss Ex. A, ECF No. 42-1 at 11). The ROD explicitly states it
does not specifically authorize site-specific construction, maintenance, or use of
new wells, pads, pipelines, or other facilities on BLM-administered lands. Rather,
the proponent or affiliate is required to submit APDs, Sundry Notices, and rightof-way applications for approval of wells, well pads, pipelines, roads, evaporative
basins, or other ancillary facilities associated with project development. Sitespecific National Environmental Policy Act (NEPA) review and approval of such
applications is required prior to initiating surface-disturbing activities within the
analyzed development area.
4
(Id.)
In 2014, Gasco applied for permission to drill sixteen new gas wells from three existing
well pads (the “Sixteen-Well project”). (BLM’s Mot. to Dismiss 6, ECF No. 42.) That spring,
the BLM released a draft environmental assessment regarding Gasco’s proposal (“EA”).
(Second Am. Compl. ¶ 128, ECF No. 31.) The Sixteen-Well project lies approximately twentysix miles southeast of Myton, Utah, (Gasco’s Mot. to Dismiss Ex. 3, ECF No. 41-3 at 3), and
half a mile from the Green River near Sheep Wash, (Second Am. Compl. ¶ 49, ECF No. 31).
The draft EA analyzes the proposed action and a no-action alternative. (Id. ¶ 128.) SUWA
submitted comments complaining about the inadequacies of the draft EA, including its prior
criticisms of the EIS because the draft EA relies on analysis in that document. (Id. ¶¶ 129–133.)
In July 2014, the BLM released the final EA and issued a Decision Record and Finding
of No Significant Impact approving the Sixteen-Well project (“DR/FONSI”) without making
significant changes to the draft EA. (Id. ¶ 134.) SUWA requested the BLM’s Utah State
Director review the EA and the DR/FONSI. (Id. ¶ 135.) In August 2014, the Deputy State
Director affirmed the EA and the DR/FONSI. (Id. ¶ 137.)
III. PROCEDURAL HISTORY
SUWA filed its Complaint at the end of 2013, alleging NEPA and FLPMA violations
relating to an environmental assessment, decision record, and finding of no significant impact
that analyze Gasco’s proposal to drill six oil wells from six existing well pads (the “Six-Well EA
and DR/FONSI”). (ECF No. 2.) In early 2014, Gasco filed a Motion to Intervene, (ECF No.
10), which the Court granted, (ECF No. 17). SUWA then amended its Complaint twice, once in
February 2014, (ECF No. 18), and again in November 2014, (ECF No. 31). The first amendment
added NEPA and FLPMA claims relating to the EIS and the ROD. (ECF No. 18.) The second
5
amendment added NEPA and FLPMA claims relating to the Sixteen-Well EA and DR/FONSI.
(ECF No. 31.) The BLM and Gasco filed their Motions to Dismiss in January 2015.3 (ECF No.
41, 42.) On June 5, 2015, the Court heard oral arguments from the BLM, Gasco, and SUWA.
(ECF No. 66.) At the hearing, the parties agreed to dismiss all claims against the Six-Well EA
and DR/FONSI.
The BLM argues SUWA lacks Article III standing because the EIS and the ROD do not
cause “‘concrete’ or ‘real and immediate’” injuries-in-fact as they do not “authorize any
environmental harm at all” without further NEPA analysis. (BLM’s Mot. to Dismiss 9–10, ECF
No. 42.) Additionally, the BLM argues the Court cannot grant SUWA’s requested relief because
the EIS and the EA do not constitute “final agency actions” under the Administrative Procedure
Act (“APA”), which authorizes courts to act in NEPA and FLPMA suits. (Id. at 10, 11 n.1.)
Gasco also argues SUWA lacks Article III standing but for different reasons. Gasco contends
SUWA’s Second Amended Complaint lacks the specificity to allege “discernable, concrete
injuries-in-fact,” (Gasco’s Mot. to Dismiss 12, ECF No. 41), and fails to show Gasco caused the
alleged injuries, (id. at 22).
Finally, both the BLM and Gasco argue, in the alternative, that SUWA fails to state a
claim under FLPMA. The BLM contends its decisions to approve the Gasco project and the
Sixteen-Well project do not contravene the governing resource management plan (“RMP”),
while Gasco contends SUWA’s allegations do not make out an actual cause of action under
FLPMA.
3
Although the BLM filed a separate Motion to Dismiss, it also joins Gasco’s Motion to Dismiss.
(BLM’s Mot. to Dismiss 2, ECF No. 42.) For clarity, the Court will attribute arguments to their
originating party.
6
The Court finds the EIS and the EA do not qualify as “final agency actions” under the
APA. Further, the Court finds the ROD does not cause “concrete” or “real and immediate”
injuries-in-fact. The Court also finds SUWA’s Second Amended Complaint specific enough to
allege “discernable, concrete injuries-in-fact” as to the remaining claims regarding the
DR/FONSI. Additionally, SUWA does not need to trace its injuries back to Gasco. Rather, it
correctly traces its alleged injuries back to the BLM’s failure to follow proper NEPA procedures.
Finally, the Court finds that SUWA does not allege a proper cause of action under FLPMA. For
these reasons, the Court dismisses SUWA’s claims against the EA, the EIS, the ROD, and the
Six-Well EA and DR/FONSI but not SUWA’s claims against the Sixteen-Well DR/FONSI.
IV. DISCUSSION
A. “Final Agency Action”
Because neither NEPA nor FLPMA provides for a private cause of action, a plaintiff
must bring such suits under the APA. Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998). In
those cases, courts may only review and act upon “final agency action.” Norton v. S. Utah
Wilderness All., 542 U.S. 55, 61–62 (2004) (“Where no other statute provides a private right of
action, the ‘agency action’ complained of must be ‘final agency action.’”); Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 882 (1990) (“When, as here, review is sought not pursuant to
specific authorization in the substantive statute, but only under the general review provisions of
the APA, the ‘agency action’ in question must be ‘final agency action.’”).
The BLM argues that the EIS and the EA do not constitute “agency actions” under the
APA, much less “final agency actions,” because they compile “information and do[] not decide
anything.” (BLM’s Mot. to Dismiss 10–11, 11 n.1, ECF No. 42.) The Court agrees.
7
The APA defines “agency action” as “the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
The APA further defines each term:
1) A “rule” is “the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or policy
or describing the organization, procedure, or practice requirements of an agency.” 5
U.S.C. § 551(4).
2) An “order” is “a final disposition . . . of an agency in a matter other than rule making.” 5
U.S.C. § 551(6).
3) A “license” is “an agency permit, certificate, approval, registration, charter, membership,
statutory exemption or other form of permission.” 5 U.S.C. § 551(8).
4) A “sanction” requires some “compulsory or restrictive action.” 5 U.S.C. § 551(10)(G).
5) “Relief” requires “taking [some] action on the application or petition of, and beneficial
to, a person.” 5 U.S.C. § 551(11)(C).
By definition, the EIS and the EA do not fit under any of these categories. In general, an
environmental impact statement is “a detailed statement” that includes information on the
environmental impacts of the proposed action and an analysis of possible alternatives. 42 U.S.C.
§ 4332(2)(C). An environmental impact statement serves two purposes:
First, “[i]t ensures that the agency, in reaching its decision, will have available,
and will carefully consider, detailed information concerning significant
environmental impacts.” Second, it “guarantees that the relevant information will
be made available to the larger audience that may also play a role in both the
decisionmaking process and the implementation of that decision.”
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004) (alteration in original) (citing
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). Similarly, an
8
environmental assessment includes information on the environmental impacts of a
proposed action and an analysis of possible alternatives but in a “concise public
document.” See 40 C.F.R. § 1508.9. An environmental assessment serves a few
purposes: “(1) Briefly provid[ing] sufficient evidence and analysis for determining
whether to prepare an environmental impact statement or a finding of no significant
impact. (2) Aid[ing] an agency’s compliance with [NEPA] when no environmental
impact statement is necessary. (3) Facilitat[ing] preparation of a statement when one is
necessary.” 40 C.F.R. § 1508.9(a).
According to these definitions, an environmental impact statement and an
environmental assessment do not make decisions or take actions that affect a person in
the ways contemplated by the APA’s definition of agency action. Rather, they constitute
informational documents that help enlighten agencies in making decisions. For this
reason, the Court finds that neither the EIS nor the EA constitutes a “final agency action”
under the APA, and thus the Court cannot “declare [them] unlawful and set [them] aside”
or prohibit the BLM from relying on them as requested by SUWA, (see Second Am.
Compl. 33–34, ECF No. 31). Thus, SUWA fails to state a claim upon which this Court
can grant relief as to the EIS and the EA.
B. Article III Standing
To establish standing,
a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and [(3)] it is
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
9
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). To establish
organizational standing, the organization’s “members [must] otherwise have standing to sue in
their own right, the interests at stake are germane to the organization’s purpose, and neither the
claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Id. at 181.
The parties only contest the first element of organizational standing. Thus, if SUWA can
establish Article III standing through Ray Bloxham, a member whose declaration SUWA
attaches to its Second Amended Complaint, it will establish organizational standing as well.
1. The ROD
The BLM challenges SUWA’s standing to bring its claims against the ROD because it
asserts the ROD causes no injury-in-fact. (BLM’s Mot. to Dismiss 9–10, ECF No. 42.) The
Court agrees.
To establish injury-in-fact in NEPA suits, a plaintiff must allege facts that “show that in
making its decision without following [NEPA] procedures, the agency created an increased risk
of actual, threatened, or imminent environmental harm.” Comm. to Save the Rio Hondo v.
Lucero, 102 F.3d 445, 449 (10th Cir. 1996); S. Utah Wilderness All. v. Palma, 707 F.3d 1143,
1153 (10th Cir. 2013). SUWA’s allegations against the ROD do not meet this standard, because
they do not sufficiently allege an “increased risk of actual, threatened, or imminent
environmental harm” stemming from the ROD.
Although the ROD approves the Uinta Basin project, it explicitly states that it “does not
specifically authorize site-specific construction, maintenance, or use of new wells, pads,
pipelines, or other facilities.” (BLM’s Mot. to Dismiss Ex. A, ECF No. 42-1 at 11.) Instead, the
10
ROD requires another step before Gasco can do anything: Gasco must obtain additional
approvals and go through another round of NEPA analysis. Without immediate permission to
disturb the surface, no increased risk of environmental harm occurs with the issuance of the
ROD. Additionally, the extra round of NEPA analysis prevents any harm from being “actual,
threatened, or imminent,” because the BLM may disapprove a site-specific proposal thus barring
Gasco from changing anything. Until the BLM gives Gasco specific additional permission, the
BLM has not approved any change to the environment based on the ROD.
The BLM conceded Gasco could still challenge the ROD in certain circumstances. At
the hearing, the BLM stated that when subsequent NEPA analyses for site-specific projects rely
on a broad, programmatic environmental impact statement, such as this EIS, a plaintiff may
challenge those portions of the environmental impact statement and the process leading up to the
statement in addition to challenging the NEPA analysis done for the site-specific project.
Because SUWA failed to establish injury-in-fact from the ROD, it cannot establish standing for
the claims related to the ROD.
2. The DR/FONSI
Gasco challenges SUWA’s standing to bring any of its claims because it asserts SUWA
has failed to provide sufficiently specific allegations of injury-in-fact and causation to survive a
motion to dismiss. (Gasco’s Mot. to Dismiss 12–23, ECF No. 41.) The Court disagrees.
Regarding injury-in-fact, the plaintiff must allege facts showing an “increased risk of
actual, threatened, or imminent environmental harm,” and “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” to satisfy the injury-in-fact requirement. Rio
Hondo, 102 F.3d at 449; see also Palma, 707 F.3d at 1155–56. At the motion to dismiss stage,
11
“general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a
motion to dismiss [a court] presum[es] that general allegations embrace those specific facts that
are necessary to support the claim.” Palma, 707 F.3d at 1152 (citations and internal quotation
marks omitted).
SUWA relies on Mr. Bloxham’s declaration to establish its injuries-in-fact from the
Sixteen-Well project. Mr. Bloxham states that “SUWA, members and staff enjoy recreation,
sightseeing, birdwatching, photography, and other activities in the affected lands and
immediately adjacent lands” and that these interests will suffer harm from “air pollution, . . .
greenhouse gas emissions, . . . and degradation of the natural environment.” (Ray Bloxham
Decl. ¶ 6, ECF No. 31-1.) Further, he specifically states the following regarding his visits to “the
public lands surrounding the [Sixteen-Well] project area”:
8.
I enjoy my visits to this area. During my visits I enjoy the incredible
views of the lands, the clean air found in these areas, the remote nature of the
area, the abundant wildlife, and the native and endemic vegetation. My travels
throughout the Uinta Basin have also led me through Myton and Ouray countless
times; I have come to greatly appreciate the character of these communities and
the people living there. Naturally, while passing through these areas I enjoy the
clean drinking water found in the local communities. In June 2014, I visited the
area of the Uinta Basin surrounding the area of the Sixteen-Well EA . . . passing
through Eightmile Flat and Myton, while observing the air quality of the region.
Prior to this specific occasion, I frequently visited, viewed, and appreciated this
area during my regular visits to this region which occurred on average two to four
times per year from 2000–2011. I intend to return to these lands as often as
possible and intend to return again within the next year.
...
11.
My health, recreational, spiritual, educational, aesthetic, and other
interests will be directly affected and irreparably harmed by the BLM’s decision
to allow the development considered in the . . . Sixteen-Well EA without fully
analyzing and disclosing the impacts of this decision and in approving
unacceptable levels of pollution.
12.
I also enjoy the opportunities for recreation on the Green River, of which,
clean water, the natural setting, and lack of human sights and sounds are an
12
integral component. I have rafted, canoed, or kayaked the Green River in this
area many times between 2000 and the present date. . . . [O]ne visit in October
2009, I floated the Green River in the project area––beginning at the Pariette
Draw area and taking out at Sand Wash. During that trip, unfortunately, I heard a
number of different oil and gas facilities or development related to oil and gas
extraction. Some of this activity was taking place miles from the river. The noise
created by these activities detracted from my experience and marred the natural
setting. I expect that if Gasco drills the [sixteen] wells at issue the sound of
drilling and other development activity will be audible from the river. I will not
visit the river during drilling because of the adverse impact it would have on any
float trip. In addition, I fear that well site activity after drilling is completed may
be audible on the Green River and will adversely affect my recreational
experience. I prize the natural soundscape of this area and anything that detracts
from that soundscape affects my recreational experience.
(Bloxham Decl. ¶¶ 8, 11–12, ECF No. 31-1.)
Mr. Bloxham alleges enough to make out an “increased risk of actual, threatened,
or imminent environmental harm.” In Palma, the Tenth Circuit noted “that Mr.
Bloxham’s declarations are more than sufficient to establish SUWA’s injury at the
pleading stage.” 707 F.3d at 1156. Those declarations included the following
statements:
[During trips to the Circle Cliffs Special Tar Sand Area,] I hiked in Little Death
Hollow Canyon, drove the Wolverine Loop road, camped under the Circle Cliffs,
and explored Moody and Middle Moody Canyons and Colt Mesa. In that area I
have also explored the Pioneer Mesa and Studhorse Peaks proposed wilderness
units and have taken scenic tours of the area. I have enjoyed the solitude, scenery,
and opportunities for primitive recreation in the area. Like much of the Grand
Staircase-Escalante National Monument, the Circle Cliffs [Special Tar Sand Area]
is remote and quiet. It is etched with canyons, complimented by expansive views,
and beautifully still.
...
[D]evelopment within the Circle Cliffs [Special Tar Sand Area] “would destroy
the incredible character of this unique and picturesque area.” “My health,
recreational, spiritual, educational, aesthetic, and other interests are directly
affected and irreparably harmed by the BLM[’s] . . . decision[] to retroactively
suspend the thirty-nine leases at issue in this litigation and the associated
development, either conventional or unconventional, that could result in these
areas . . . .”
13
Id. at 1154 (citations omitted). Mr. Bloxham’s declaration here has the same level of
specificity as his declarations in Palma. Therefore, his declaration here also
demonstrates an increased risk of injury-in-fact.
Additionally, Mr. Bloxham sufficiently alleges a geographical nexus to the
Sixteen-Well project when he states he has gone to Myton and Ouray multiple times,
visited Eightmile Flat, and rafted down the Green River past the Sixteen-Well project
area. (Bloxham Decl. ¶¶ 8, 12, ECF No. 31-1.) The Sixteen-Well project lies only
twenty-six miles southeast of Myton, Utah, (Gasco’s Mot. to Dismiss Ex. 3, ECF No. 413 at 3), and a half a mile from the Green River near Sheep Wash, (Second Am. Compl. ¶
49, ECF No. 31). In Palma, the Tenth Circuit stated that “[n]either our court nor the
Supreme Court has ever required an environmental plaintiff to show it has traversed each
bit of land that will be affected by a challenged agency action. . . . Mr. Bloxham’s
declarations go beyond the general factual allegations needed at the pleading stage. As
his affidavits described in detail, he has traveled extensively through these [areas and] has
traversed through or within view of the parcels of land where oil and gas development
will occur.” 707 F.3d at 1155–57. Similarly, in Rio Hondo, the Tenth Circuit held that
plaintiffs who “live[d] twelve to fifteen miles downstream” from the affected area and
“have used the waters of the Rio Hondo watershed for their entire lifetimes” established a
geographical nexus. 102 F.3d at 450. Air pollution does not affect only the immediate
site of discharge; rather it flows out from that area. While at some distance clean air will
dilute the pollution to a level of an unrecognizable harm or other barriers will prevent the
spread of the pollution, half a mile falls within a close enough zone to allege a
geographical nexus. This precedent supports the finding that Mr. Bloxham has traveled,
14
and will travel, close enough to the Sixteen-Well project to allege a geographical nexus
for purposes of standing at the motion to dismiss stage.
SUWA’s Second Amended Complaint also sufficiently alleges that the BLM’s
flawed NEPA process caused its injuries-in-fact. “To establish causation [for a NEPA
claim], a plaintiff need only show its increased risk is fairly traceable to the agency’s
failure to comply with [NEPA].” Id. at 451. “Under [NEPA], an injury results not from
the agency’s decision, but from the agency’s uninformed decisionmaking. The increased
risk of adverse environmental consequences is due to the agency’s ‘failure substantively
to consider the environmental ramifications of its actions in accordance with [NEPA.]’”
Id. at 452 (citations omitted).
Gasco argues that even if SUWA successfully alleges concrete injuries-in-fact,
SUWA cannot trace its alleged injuries back to Gasco. (Gasco’s Mot. to Dismiss 22–23,
ECF No. 41.) However, SUWA need not allege its injuries trace back to Gasco; rather, it
must allege that the BLM’s flawed decision-making process may cause the injuries. See
Rio Hondo, 102 F.3d at 451–52. SUWA successfully makes this connection and alleges
causation when it asserts that the EA inadequately analyzes the impacts on air quality and
ozone levels, ignores the social cost of greenhouse gas emissions, and fails to analyze the
impacts of the Sixteen-Well project on river recreationists. (Second Am. Compl. ¶ 135,
ECF No. 31.) Additionally, the EA relies on the EIS, which has its own alleged
shortcomings, including failing to use a newly published guidance document, the Greater
Uinta Basin Oil and Gas Cumulative Impacts Technical Support Document, in its
analysis; using outdated data; and failing to analyze suggested sources of pollution. (Id.
at ¶¶ 94–97, 108–09, 130–31.) SUWA alleges this uninformed decision-making led to
15
the BLM’s decision to approve the Sixteen-Well project, which in turn injured SUWA.
Thus, SUWA sufficiently alleges its injuries-in-fact from the DR/FONSI can trace back
to the BLM’s flawed NEPA process.
The Court further notes any requirement that SUWA provide factual support to
prove Gasco’s projects will increase air pollution would turn NEPA on its head. “To
require that a plaintiff establish that the agency action will result in the very impacts an
environmental impact statement is meant to examine is contrary to the spirit and purpose
of [NEPA].” Rio Hondo, 102 F.3d at 452. Moreover, any such requirement would
encourage introduction of new evidence not in the administrative record—a consequence
not contemplated in an administrative appeal.
Finally, should SUWA prevail, the Court can redress SUWA’s injuries-in-fact.
The Court can take action on the DR/FONSI under the APA, declaring it unlawful or
setting it aside if the Court finds it “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. § 706(2)(a)—relief SUWA seeks.
(Second Am. Compl. 33–34, ECF No. 31.)
Therefore, SUWA has sufficiently alleged standing to survive a motion to dismiss
its NEPA claims against the DR/FONSI.
C. FLPMA
SUWA alleges that “BLM’s failure to provide for compliance with relevant air . . .
quality standards prior to approving the . . . Sixteen-Well EA violates FLPMA.” (Second Am.
Compl. ¶ 165, ECF No. 31.) Although SUWA bases its claim on both 43 U.S.C. §§ 1712(c)(8)
16
and 1732(a),4 SUWA emphasizes that “[t]he critical component of [its claim] flows from 43
U.S.C. Section 1732(a).” (Opp’n 23, ECF No. 54.) “Since these land use plans must provide for
compliance with state and federal air . . . quality standards, BLM is, therefore, required by statute
to provide for compliance through its authorizations and daily management.” (Id. (citing 43
U.S.C. §§ 1712(c)(8) and 1732(a)).) At the hearing, SUWA clarified that it believes the BLM’s
issuance of the DR/FONSI itself violated FLPMA because the Sixteen-Well project violates air
quality standards. SUWA insisted it does not allege the BLM’s issuance of the DR/FONSI
contravenes the relevant RMP. SUWA cannot allege contravention of the RMP because the
RMP did not include any requirement to comply with state and federal air quality standards.
(Id.; Second Am. Compl. ¶ 161, ECF No. 31.) SUWA does not allege the RMP violates FLPMA
and confirmed as much at the hearing. (Opp’n 23–24, ECF No. 54; Second Am. Complaint ¶¶
160–65, ECF No. 31.)
Gasco argues that SUWA’s allegations do not make out a FLPMA claim because SUWA
does not allege any inconsistency with the RMP. (Gasco’s Reply 9–10, ECF No. 59.) The Court
agrees.
The relevant part of 43 U.S.C. § 1732(a) states that “[t]he Secretary [of the Interior] shall
manage the public lands under principles of multiple use and sustained yield, in accordance with
the land use plans developed by him under § 1712 of this title when they are available.”5 Parties
typically allege only two causes of action under § 1732(a): (1) that some BLM action or inaction
contravened the relevant RMP and (2) that some BLM action or inaction contravened §
1732(a)’s mandate to “manage . . . public lands under principles of multiple use and sustained
4
SUWA also alleged FLPMA violations based on 43 C.F.R. § 2920.7(b)(3), (Second Am.
Compl. ¶ 160, ECF No. 31), but later dropped that basis, (Opp’n 24 n.11, ECF No. 54).
5
All parties agree the exception in § 1732(a) does not apply here. (BLM and Gasco’s Joint
Suppl. Br. 2, ECF No. 69; SUWA’s Suppl. Br. 1, ECF No. 70.)
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yield.” E.g., Norton, 542 U.S. at 67; Mount Royal Joint Venture v. Kempthorne, 477 F.3d 745,
756–57 (D.C. Cir. 2007); Or. Nat. Res. Council v. Brong, 492 F.3d 1120, 1125–32 (9th Cir.
2007); Or. Wild v. Bureau of Land Mgmt., No. 6:14-CV-0110-AA, 2015 WL 1190131, at *11–
12 (D. Or. Mar. 14, 2015); Williams v. Bankert, No. 2:05CV503DAK, 2007 WL 3053293, at *7–
8 (D. Utah Oct. 18, 2007); Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1289, 1299–1300,
1305, 1307–08 (10th Cir. 1999) (evaluating “whether the Secretary of Interior acted within his
authority under . . . FLPMA [including § 1732(a)’s multiple use and sustained yield mandate]
when he promulgated new regulations governing the administration of livestock grazing on
public lands managed by the Bureau of Land Management”). SUWA makes neither of these
claims.
The Court has not found any treatise or case where SUWA’s allegations make out a cause
of action under § 1732(a) nor has SUWA cited any such authority. (See Opp’n 23–24, ECF No.
54 (citing only to 43 U.S.C. §§ 1712(c)(8) and 1732(a) in support of its allegations).) Indeed,
where parties have made similar claims, courts have rejected them as lacking a legal basis.
WildEarth Guardians v. Bureau of Land Mgmt., 8 F. Supp. 3d 17, 37–38 (D.D.C. 2014) (holding
plaintiffs failed to state a claim when they alleged “that BLM violated FLPMA by failing to
ensure its leasing decisions would result in compliance with federal air quality standards”);
WildEarth Guardians v. Salazar, 880 F. Supp. 2d 77, 94 (D.D.C. 2012) (holding “neither the
FLPMA nor the implementing regulations required BLM to analyze whether and to what degree
the leasing of the WAII tracts would comply with national ozone, PM10, and NO2 standards.”)
Therefore, the Court dismisses SUWA’s FLPMA claims. Because the Court dismisses SUWA’s
FLPMA claims based on Gasco’s argument, the Court will not address the BLM’s argument. If
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SUWA wishes to replead its claim as against the RMP under 43 U.S.C. § 1712 it may attempt to
do so within thirty days of entry of this Order.
V. CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART the
BLM’s and Gasco’s Motions to Dismiss. The Court dismisses all claims relating to the EA, the
EIS, the ROD, and the Six-Well EA and DR/FONSI with prejudice. The NEPA claims relating
to the Sixteen-Well DR/FONSI survive the Motion to Dismiss. The Court dismisses the FLPMA
claims concerning the Sixteen-Well DR/FONSI without prejudice.
SO ORDERED this 17th day of July, 2015.
BY THE COURT:
________________________________
EVELYN J. FURSE
United States Magistrate Judge
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