Western Energy Alliance et al v. Secretary of the US Department of the Interior et al

Filing 87

ORDER by the Honorable Scott W Skavdahl denying (34) Motion for Preliminary Injunction; denying (12) Motion for Preliminary Injunction in case 2:16-cv-00280-SWS; denying (39) Motion for Preliminary Injunction; denying (21) Motion for Preliminary Injunction in case 2:16-cv-00285-SWS. Associated Cases: 2:16-cv-00285-SWS, 2:16-cv-00280-SWS (Court Staff, skaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
STATE OF WYOMING and STATE OF MONTANA, )
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Petitioners,
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STATE OF NORTH DAKOTA,
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Intervenor-Petitioner,
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vs.
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UNITED STATES DEPARTMENT OF THE
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INTERIOR; SALLY JEWELL, in her official
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capacity as Secretary of the Interior; UNITED
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STATES BUREAU OF LAND MANAGEMENT;
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and NEIL KORNZE, in his official capacity as
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Director of the Bureau of Land Management,
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Respondents,
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WYOMING OUTDOOR COUNCIL, et al.;
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EARTHWORKS; STATE OF CALIFORNIA and
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STATE OF NEW MEXICO,
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Intervenor-Respondents.
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WESTERN ENERGY ALLIANCE, and the
INDEPENDENT PETROLEUM
ASSOCIATION OF AMERICA,
Petitioners,
vs.
SALLY JEWELL, in her official capacity as
Secretary of the United States Department of the
Interior; and BUREAU OF LAND
MANAGEMENT,
Respondents.

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Case No. 2:16-CV-0285-SWS
(Lead Case)

ORDER ON MOTIONS FOR
PRELIMINARY INJUNCTION

Case No. 2:16-CV-0280-SWS

This matter comes before the Court on the respective motions for preliminary
injunction filed by the Petitioners and Intervenor-Petitioner (collectively, “Petitioners”):
Wyoming and Montana’s Motion for Preliminary Injunction (ECF No. 21),1 North
Dakota’s Motion for Preliminary Injunction (ECF No. 39), and Motion for Preliminary
Injunction filed by Petitioners Western Energy Alliance and the Independent Petroleum
Association of America (ECF No. 12 in 16-CV-280). The Court, having considered the
briefs and materials submitted in support of the motions and the oppositions thereto,
having heard witness testimony and oral argument of counsel, and being otherwise fully
advised, FINDS and ORDERS as follows:
BACKGROUND
On November 18, 2016, the Department of the Interior, Bureau of Land
Management (“BLM”) issued its final rule related to the reduction of waste of natural gas
from venting, flaring, and leaks during oil and natural gas production activities on federal
and Indian lands.

See 81 Fed. Reg. 83,008 (Nov. 18, 2016), Waste Prevention,

Production Subject to Royalties, and Resource Conservation (the “Final Rule” or
“Rule”). By their motions, Petitioners request that the Court enjoin the Rule before it
takes effect on January 17, 2017. Petitioners contend the Rule represents unlawful
agency action because it exceeds BLM’s statutory authority and is otherwise arbitrary
and capricious.

1

Unless otherwise noted, all filings referenced herein are from the docket in Case No. 2:16-CV-0285-S, which has
been designated the Lead Case in these consolidated cases. (See ECF No. 23.)

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During oil production, operators frequently dispose of the associated gas by
venting or flaring if the gas cannot be easily captured for sale or used on-site. Associated
gas is the natural gas that is produced from an oil well during normal production
operations and is either sold, re-injected, used for production purposes, vented (rarely) or
flared, depending on whether the well is connected to a gathering line or other method of
capture. AR at 457 (BLM Regulatory Impact Analysis for the Final Rule (“RIA”) at 11).
In addition, emergency flaring or venting may be necessary for safety reasons. Id.
Venting is the release of gases into the atmosphere, such as opening a valve on a tank to
relieve tank pressure. Flaring is the controlled burning of emission streams through
devices called flares or combustors, releasing the byproducts of that combustion into the
atmosphere. While venting or flaring is sometime unavoidable, it is also sometimes done
in the absence of infrastructure to transport the gas to market.
The Department of the Interior (“DOI”) has regulated venting and flaring to
prevent the waste of federal and Indian natural gas since 1979 when it issued Notice to
Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases (“NTL-4A”)
(ECF No. 13-3), which the Waste Prevention Rule purports to replace. See 81 Fed. Reg.
83,008. NTL-4A prohibits venting and flaring of gas produced by oil wells, except when
the gas is “unavoidably lost” as defined in NTL-4A and when the operator has sought and
received BLM’s approval to vent or flare. NTL-4A § IV.B. While unavoidably lost gas
and gas vented or flared with BLM approval are exempted from royalties, gas that is
“avoidably lost” – that is, gas lost due to an operator’s negligence or failure to comply
with the law – is subject to royalties. NTL-4A § I, II.A & C. NTL-4A also requires
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operators to measure and report each month the volume of gas sold, avoidably or
unavoidably lost, vented or flared, or used for beneficial purposes. NTL-4A § V.
Over the past decade, oil and natural gas production in the United States, and on
BLM-administered leases, has increased dramatically. AR 366 (81 Fed. Reg. at 83,104).
Domestic production from over 96,000 federal oil and gas wells now accounts for 11
percent of the National’s natural gas supply and 5 percent of its oil supply. In FY 2015,
federal and Indian leases produced oil and gas valued at $20.9 billion, which generated
$2.3 billion in royalties. Id. BLM represents that this increase in oil production has been
accompanied by “significant and growing quantities of wasted natural gas.”

Id.

According to the DOI’s Office Natural Resources Revenue (“ONRR”), between 2009 and
2015, operators reported venting or flaring 2.7 percent of the natural gas produced on
BLM-administered leases – purportedly enough natural gas to supply over 6.2 million
households for one year. AR at 367 (81 Fed. Reg. at 83,015). According to the BLM,
the problem of natural gas loss on BLM-administered leases is growing, evidenced by a
318 percent increase in reported volumes of flared oil-well gas and an increased number
of operator applications to vent or flare royalty-free (between 2005, 2011, and 2014, the
number of applications per year went from 50, to 622, to 1,248). Id.
While recognizing that flaring is sometimes unavoidable, the BLM determined the
majority of flaring on its leases results from the rate of new well construction outpacing
the existing infrastructure capacity. AR 5 (81 Fed. Reg. at 6619) (Proposed Rule). The
other situation resulting in substantial flaring of associated gas on BLM-administered
leases is when capture and processing infrastructure has not yet been built out. Id.
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Flaring in these circumstances may be due to insufficient information about how much
gas will be produced or to an operator’s decision to focus on near-term oil production
rather than investing in the gas capture and transmission infrastructure necessary to
realize a profit from the associated gas. Id.
In December 2007, the Royalty Policy Committee issued a report recommending
the BLM update its rules and identified specific actions to improve production
accountability. AR 369 (81 Fed. Reg. at 83,107). In 2010, the DOI’s Office of Inspector
General and the U.S. Government Accountability Office (“GAO”) both recommended
that BLM’s regulations regarding the royalty-free use of gas be updated to take advantage
of new capture technologies. Id. The GAO estimated that the economically recoverable
volume of natural gas being wasted through venting and flaring at oil and gas production
sites on federal and Indian lands represents about $23 million in lost royalties. AR 448
(RIA at 2). The GAO determined that around 40 percent of the natural gas vented and
flared on onshore federal leases could be economically captured using currently available
technologies. AR 16 (81 Fed. Reg. at 6630). In 2016, the GAO issued another report
finding that BLM’s regulations failed to provide operators clear guidance on accounting
for and reporting lost gas. AR 369 (81 Fed. Reg. at 83,017).
Concluding there is a “compelling need to update [NTL-4A’s] requirements to
make them clearer, more effective, and reflective of modern technologies and practices”
(id.), BLM published the Proposed Rule on February 8, 2016 (81 Fed. Reg. 6616). The
BLM accepted public comments, met with stakeholders and state regulators in states with
significant federal oil and gas production, and discussed the Rule with personnel from the
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Environmental Protection Agency (“EPA”) on over 40 conference calls between January
2015 and October 2016. Only 9 months after publishing the Proposed Rule, BLM issued
the Final Rule, with an effective date of January 17, 2017.
The Final Rule prohibits venting, except in certain limited situations such as
emergencies or when flaring the gas is technically infeasible. 43 C.F.R. § 3179.6.
Unlike the Proposed Rule’s monthly flaring limits, the Final Rule adopts a more flexible
capture-percentage approach, modeled on North Dakota’s regulations, that requires
operators to capture a certain percentage of the gas they produce each month, excluding
specified volumes of allowable flared gas. 43 C.F.R. § 3179.7; AR 374-76 (81 Fed. Reg.
at 83,023-24). Both the capture percentage and the flaring allowance phase in over a tenyear period. Id. The Final Rule allows operators to choose whether to comply with the
capture targets on a lease-by-lease, county-wide, or state-wide basis. Id. at 83,023.
The Final Rule retains NTL-4A’s distinction between avoidably and unavoidably
lost gas – with royalties owed on the former but not the latter – but eliminates BLM’s
discretion to make unavoidable loss determinations on a case-by-case basis and instead
lists twelve categories in which a loss is always considered unavoidable. 43 C.F.R. §
3179.4. Any gas flared in excess of the capture requirements is deemed an avoidable
loss. Id. The Final Rule also requires operators to measure and report the amount of gas
vented or flared above 50 million cubic feet per day. Id. § 3179.9. For leaks, the Final
Rule requires that all operators inspect equipment twice a year and timely repair any
leaks found.

Id. §§ 3179.301-304.

It also requires that operators update old and

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inefficient equipment that contributes to waste and minimize gas lost from storage vessels
and during well maintenance, drilling, and completion. Id. §§ 3179.201-204.
BLM characterizes the environmental benefits of reducing the amount of methane
and other air pollutants released into the atmosphere as ancillary to the Rule’s primary
purpose of waste prevention. As phrased by New Mexico’s counsel during the hearing
on Petitioners’ motions, in these circumstances, “the product is also the pollutant.” Thus,
there can be no escaping the potential conflict between the BLM’s regulation of waste
and loss of gas and the EPA’s regulation of air pollutants from oil and gas operations. In
an attempt to alleviate the obvious problems potentially caused by overlapping
regulations, the Rule incorporates the following provisions: (1) allows compliance with
EPA’s emissions requirements for new or modified sources to satisfy the requirements of
the Rule when both EPA regulations and the Rule apply, 43 C.F.R. §§ 3179.102(b),
3179.301(j); (2) exempts from the Rule equipment covered by existing EPA regulations,
id. §§ 3179.201(a)(2), 3179.202(a)(2), 3179.203(a)(2); and (3) allows a State or tribe to
request a variance from provisions of the Rule, so long as state or tribal regulations are at
least as effective as the Rule in reducing waste, id. § 3179.401. See AR 362, 365 (81
Fed. Reg. at 83,010, 83,013). The decision to grant or deny a variance is within the
BLM’s discretion and is not subject to review. Id. § 3179.401(b). If the BLM approves a
variance, the State or tribal regulations can be enforced by the BLM; however, the State’s
or tribe’s “own authority to enforce its regulation(s) or rule(s) to be applied under the
variance would not be affected by the BLM’s approval of a variance.” Id. § 3179.401(f)
(emphasis added).
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Petitioners contend the Rule is, in actuality, an attempt by BLM to regulate air
pollution which it lacks authority to do, and the Rule, at best, duplicates, and at worst,
undermines, the agencies tasked by Congress with regulating air quality. Congress
expressly delegated authority to the states and the EPA to “protect and enhance the
quality of the Nation’s air resources so as to promote the public health and welfare and
productive capacity of its population.” 42 U.S.C. § 7401(b)(1).

The Clean Air Act

(“CAA”) provides that “[e]ach State shall have the primary responsibility for assuring air
quality within the entire geographic area comprising such State[.]” Id. § 7407(a). Thus,
in enacting the CAA, Congress established a comprehensive scheme for regulating air
quality through “a cooperative-federalism approach” under which the EPA develops
baseline air quality standards that the states implement and enforce. Oklahoma v. U.S.
E.P.A., 723 F.3d 1201, 1204 (10th Cir. 2013). Petitioners ask this Court to enjoin BLM
from implementing the Rule because it exceeds BLM’s authority by comprehensively
regulating air quality and is arbitrary and capricious.
STANDARD OF REVIEW
To obtain a preliminary injunction, petitioners must show: “(1) a likelihood of
success on the merits; (2) that they will [likely] suffer irreparable harm; (3) that the
balance of equities tips in their favor; and (4) that the injunction is in the public interest.”
Petrella v. Brownback, 787 F.3d 1242, 1257 (10th Cir. 2015). See also Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S.
7, 20 (2008)). “[B]ecause a preliminary injunction is an extraordinary remedy, the
movant’s right to relief must be clear and unequivocal.” Fundamentalist Church of Jesus
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Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (internal
quotation marks and citation omitted); see also Johnson & Johnson Vision Care, Inc. v.
Reyes, Nos. 15-4071, -4072, -4073, 2016 WL 7336568, at *3 (10th Cir. Dec. 19, 2016).
The purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits can be held. Given
this limited purpose, and given the haste that is often necessary if those
positions are to be preserved, a preliminary injunction is customarily
granted on the basis of procedures that are less formal and evidence that is
less complete than in a trial on the merits. A party thus is not required to
prove his case in full at a preliminary-injunction hearing, and the findings
of fact and conclusions of law made by a court granting a preliminary
injunction are not binding at trial on the merits.
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (citations omitted). See also
Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009);
RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (primary goal of
preliminary injunction is to preserve the pre-trial status quo). The grant or denial of a
preliminary injunction lies within the sound discretion of the district court. Amoco Oil
Co. v. Rainbow Snow, 748 F.2d 556, 557 (10th Cir. 1984). See also Dine Citizens
Against Ruining Our Environment v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016).
DISCUSSION
Petitioners challenge the Rule pursuant to the Administrative Procedure Act,
claiming the Rule should be set aside as arbitrary and capricious and in excess of the
BLM’s statutory authority. See 5 U.S.C. § 706(2)(A) & (C).2

2

The APA’s scope of review provisions relevant here are:
To the extent necessary to decision and when presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action. The reviewing court shall--

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A.

Likelihood of Success on Merits
Judicial review of agency action is governed by the standards set forth in § 706 of

the APA, requiring the reviewing court to engage in a “substantial inquiry.” Olenhouse
v. Commodity Credit Corp., 42 F.3d 1560, 1573-74 (10th Cir. 1994) (citing Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)). While an agency’s decision is
entitled to a “presumption of regularity,” the presumption does not shield the agency
from a “thorough, probing, in-depth review.” Id. at 1574. “[T]he essential function of
judicial review is a determination of (1) whether the agency acted within the scope of its
authority, (2) whether the agency complied with prescribed procedures, and (3) whether
the action is otherwise arbitrary, capricious or an abuse of discretion.”

Id.

“Determination of whether the agency acted within the scope of its authority requires a
delineation of the scope of the agency’s authority and discretion, and consideration of
whether on the facts, the agency’s action can reasonably be said to be within that range.”
Id.
Under the arbitrary and capricious standard, a court must ascertain “whether the
agency examined the relevant data and articulated a rational connection between the facts
found and the decision made.” Id. The agency must provide a reasoned basis for its

***
(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;
***
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
***
In making the foregoing determinations, the court shall review the whole record or those parts of it
cited by a party, and due account shall be taken of the rule of prejudicial error.”
5 U.S.C. § 706.

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action and the action must be supported by the facts in the record. Id. at 1575. Agency
action is arbitrary if not supported by “substantial evidence” in the administrative record.
Olenhouse, 42 F.3d at 1575; Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d
1147, 1156 (10th Cir. 2004). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Pennaco Energy,
377 F.3d at 1156 (quoting Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003)).
“Because the arbitrary and capricious standard focuses on the rationality of an agency’s
decisionmaking process rather than on the rationality of the actual decision, ‘[i]t is wellestablished that an agency’s action must be upheld, if at all, on the basis articulated by the
agency itself.’” Olenhouse, 42 F.3d at 1575 (quoting Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Ins. Co., 463 U.S. 29, 50 (1983)).
1.

BLM’s Authority to Promulgate the Rule

“It is axiomatic that an administrative agency’s power to promulgate legislative
regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 208 (1988). “Regardless of how serious the problem an
administrative agency seeks to address, [] it may not exercise its authority ‘in a manner
that is inconsistent with the administrative structure that Congress enacted into law.’”
Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000)
(quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988)). Accordingly, an
“essential function” of a court’s review under the APA is to determine “whether an
agency acted within the scope of its authority.” WildEarth Guardians v. U.S. Fish and
Wildlife Serv., 784 F.3d 677, 683 (10th Cir. 2015).
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Where a case involves an administrative agency’s assertion of authority to regulate
a particular activity pursuant to a statute that it administers, the court’s analysis is
governed by Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
See Brown & Williamson, 529 U.S. at 132.
Under Chevron, a reviewing court must first ask whether Congress has
directly spoken to the precise question at issue. If Congress has done so,
the inquiry is at an end; the court must give effect to the unambiguously
expressed intent of Congress. But if Congress has not specifically
addressed the question, a reviewing court must respect the agency’s
construction of the statute so long as it is permissible. Such deference is
justified because the responsibilities for assessing the wisdom of such
policy choices and resolving the struggle between competing views of the
public interest are not judicial ones, and because of the agency’s greater
familiarity with the ever-changing facts and circumstances surrounding the
subjects regulated[.]
Id. (internal quotation marks and citations omitted). Unlike the situation in State of
Wyoming, et al. v. Dep’t of Interior, No. 15-CV-043-S (June 21, 2016) (setting aside
BLM’s final rule related to hydraulic fracturing), Congress has not directly announced
that the precise activity in question not be subject to federal regulation. Absent clear
expression of Congressional intent, the Court must proceed to the second step of the
Chevron abyss.3

3

As a sister federal district court has recently observed:
Chevron’s second step is the easier one to describe, because it is all but toothless: 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.
Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 140 F. Supp. 3d 1123, 1168-69 (D.N.M. 2015).

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The Mineral Leasing Act of 1920 (“MLA”) creates a program for leasing mineral
deposits on federal lands.4 Congress authorized the Secretary “to prescribe necessary and
proper rules and regulations and to do any and all things necessary to carry out and
accomplish the purposes of the [the MLA].” 30 U.S.C. § 189. “The purpose of the Act is
to promote the orderly development of oil and gas deposits in publicly owned lands of the
United States through private enterprise.” Geosearch, Inc. v. Andrus, 508 F. Supp. 839,
842 (D. Wyo. 1981) (citing Harvey v. Udall, 384 F.2d 883 (10th Cir. 1967)). See also
Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 358 (8th Cir. 1984)
(“broad purpose of the MLA was to provide incentives to explore new, unproven oil and
gas areas through noncompetitive leasing, while assuring through competitive bidding
adequate compensation to the government for leasing in producing areas”).5
Specifically, for oil and gas leasing, the MLA, inter alia, establishes terms of the
lease and royalty and rental amounts (30 U.S.C. §§ 223, 226(d)&(e)), requires the lessee
to “use all reasonable precautions to prevent waste of oil or gas developed in the
land” (id. § 225) (emphasis added), authorizes the Secretary of Interior to lease all public
lands subject to the Act for oil and gas development (id. § 226(a)), directs the Secretary
to regulate surface-disturbing activities (id. § 226(g)), and allows for the establishment of
cooperative development plans to conserve oil and gas resources (id. § 226(m)). Section
187 confirms the BLM’s authority to issue regulations to carry out the MLA’s waste
prevention objectives: “Each lease shall contain provisions for the purpose of insuring
4

The MLA applies to deposits of coal, phosphate, sodium, potassium, oil, oil shale, gilsonite, or gas, and virtually
all lands containing such deposits owned by the United States. 30 U.S.C. § 181.
5
The Indian Mineral Leasing Act (“IMLA”), generally, grants the Secretary broad regulatory jurisdiction over oil
and gas development and operations on Indian lands. 25 U.S.C. § 396d.

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the exercise of reasonable diligence, skill and care in the operation of said property” and
“a provision that such rules . . . for the prevention of undue waste as may be
prescribed by said Secretary shall be observed.” (Emphasis added.)
The Federal Oil and Gas Royalty Management Act of 1982 (“FOGRMA”), 30
U.S.C. § 1751, creates a thorough system for collecting and accounting for federal
mineral royalties. FOGRMA reiterates Congress’ concern about wasted oil and gas:
“Any lessee is liable for royalty payments on oil or gas lost or wasted from a lease site
when such loss or waste is due to negligence on the part of the operator of the lease, or
due to the failure to comply with any rule or regulation, order or citation issued under this
chapter or any mineral leasing law.” 30 U.S.C. § 1756. Like the MLA, FOGRMA
contains a broad grant of rulemaking authority to achieve its objectives. 30 U.S.C. §
1751 (“The Secretary shall prescribe such rules and regulations as he deems reasonably
necessary to carry out this chapter.”).
The terms of the MLA and FOGRMA make clear that Congress intended the
Secretary, through the BLM, to exercise its rulemaking authority to prevent the waste of
federal and Indian mineral resources and to ensure the proper payment of royalties to
federal, state, and tribal governments.6

“[T]he delegation of general authority to

promulgate regulations extends to all matters ‘within the agency’s substantive field.’
Because ‘the whole includes all of its parts,’ courts need not try to discern whether ‘the
particular issue was committed to agency discretion.’” Helfrich v. Blue Cross & Blue
Shield Ass’n, 804 F.3d 1090, 1109 (10th Cir. 2015) (quoting City of Arlington v. F.C.C.,
6

Petitioners do not challenge BLM’s authority to regulate waste and promulgate rules governing royalty payments.

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133 S. Ct. 1863, 1874 (2013)). The question here, then, is not whether the MLA and
FOGRMA specifically grant BLM the authority to regulate venting, flaring, and
equipment leaks, but rather whether they unambiguously grant BLM authority to regulate
the development of federal and Indian oil and gas resources for the prevention of waste.
The answer to that question, largely undisputed by Petitioners, is “yes.” “The [MLA]
was intended to promote wise development of these natural resources and to obtain for
the public a reasonable financial return on assets that ‘belong’ to the public.” California
Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir. 1961).
The rub here, however, is whether the Rule, or at least certain provisions of the
Rule, was promulgated for the prevention of waste or instead for the protection of air
quality, which is expressly within the “substantive field” of the EPA and states pursuant
to the Clean Air Act. The BLM argues the Rule’s benefits to air quality do not undercut
its waste prevention purpose – to be sure, a regulation that prevents wasteful losses of
natural gas necessarily reduces emissions of that gas. The Court further agrees that the
BLM is entitled to deference regarding the determination of how best to minimize losses
of gas due to venting, flaring, and leaks, and incentivize the capture and use of produced
gas. In doing so, the Federal Land Policy and Management Act (“FLPMA”) arguably
directs BLM to consider any impact to “the quality of . . . air and atmospheric . . .
values.” 43 U.S.C. § 1701(1)(8).7 While the statutory obligations of two separate

7

The Court does not agree with BLM’s suggestion that FLPMA grants it broad authority to promulgate its own
regulations directed at air quality control. See Fed. Resp’ts’ Br. at 25 (ECF No. 70 at 38). FLPMA primarily
establishes congressional policy that the Secretary manage the public lands under principles of multiple use and
sustained yield. At its core, FLPMA is a land use planning statute. See 43 U.S.C. § 1712; Rocky Mtn. Oil and Gas
Ass’n v. Watt, 696 F.2d 734, 739 (10th Cir. 1982) (“FLPMA contains comprehensive inventorying and land use

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agencies may overlap, the two agencies must administer their obligations to avoid
inconsistencies or conflict. See Massachusetts v. E.P.A., 549 U.S. 497, 532 (2007).
As stated above, an administrative agency may not exercise its authority “in a
manner that is inconsistent with administrative structure that Congress enacted into law.”
Brown & Williamson Tobacco Corp., 529 U.S. at 125. Further, “the meaning of one
statute may be affected by other Acts, particularly where Congress has spoken
subsequently and more specifically to the topic at hand.” Id. at 133. When enacting the
Clean Air Act in 1970, Congress directly addressed the issue of air pollution and created
a comprehensive scheme for its prevention and control.
The Clean Air Act, 42 U.S.C. § 7401 et seq., enacted in 1970, is a
comprehensive federal law that regulates air emissions under the auspices
of the United States Environmental Protection Agency (“EPA”). Congress
enacted the law in response to evidence of the increasing amount of air
pollution created by the industrialization and urbanization of the United
States and its threat to public health and welfare. 42 U.S.C. § 7401(a)(2).
The Clean Air Act states that air pollution prevention and control is the
primary responsibility of individual states and local governments but
that federal financial assistance and leadership is essential to accomplish
these goals. Id. § 7401(a)(3)-(4). Thus, it employs a “cooperative
federalism” structure under which the federal government develops
baseline standards that the states individually implement and enforce.
GenOn REMA, LLC v. EPA, 722 F.3d 513, 516, No. 12–1022, 2013 WL
3481486, at *1 (3d Cir. July 12, 2013). In so doing, states are expressly
allowed to employ standards more stringent than those specified by the
federal requirements. 42 U.S.C. § 7416. The Clean Air Act makes the EPA
responsible for developing acceptable national ambient air quality standards
planning provisions to ensure that the ‘proper multiple use mix of retained public lands’ be achieved”); Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 57 (FLPMA establishes a dual regime of inventory and planning); Klamath
Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 555 (9th Cir. 2006) (FLPMA establishes requirements for land
use planning on public land). See also “Memorandum of Understanding Among the U.S. Dep’t of Agric., U.S.
Dep’t of Interior, and U.S. Envt. Prot. Agency, Regarding Air Quality Analyses and Mitigation for Federal Oil and
Gas Decisions through the NEPA Process at 7 (June 23, 2011) (describing BLM’s authority over air quality as
limited to developing land use plans and providing for compliance with state and Federal pollution control laws,
including the CAA), available at https://www.doi.gov/sites/doi.gov/files/migrated/news/pressreleases/upload/29704Joint-MOU-Air-Quality-FINAL.pdf.

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(“NAAQS”), which are meant to set a uniform level of air quality across
the country in order to protect the populace and the environment. Id. §
7409(b)(1). Before such levels are adopted or modified by the EPA, “a
reasonable time for interested persons to submit written comments” must be
provided. Id. § 7409(a)(1)(B). The EPA itself does not typically regulate
individual sources of emissions. Instead, decisions regarding how to meet
NAAQS are left to individual states. Id. § 7410(a)(1). Pursuant to this goal,
each state is required to create and submit to the EPA a State
Implementation Plan (“SIP”) which provides for implementation,
maintenance, and enforcement of NAAQS within the state. Id. All SIPs
must be submitted to the EPA for approval before they become final, and
once a SIP is approved, “its requirements become federal law and are fully
enforceable in federal court.” Her Majesty the Queen in Right of the
Province of Ontario v. Detroit, 874 F.2d 332, 335 (6th Cir.1989) (citing 42
U.S.C. § 7604(a)). States are tasked with enforcing the limitations they
adopt in their SIPs. They must regulate all stationary sources located within
the areas covered by the SIPs, 42 U.S.C. § 7410(a)(2)(C), and implement a
mandatory permit program that limits the amounts and types of emissions
that each stationary source is allowed to discharge, id. §§ 7661a(d)(1),
7661c(a). “[E]ach permit is intended to be a source-specific bible for Clean
Air Act compliance containing in a single, comprehensive set of
documents, all [Clean Air Act] requirements relevant to the particular
polluting source.” North Carolina, ex rel. Cooper v. Tenn. Valley Auth.,
615 F.3d 291, 300 (4th Cir.2010) (internal quotation marks omitted).
Bell v. Cheswick Generating Station, 734 F.3d 188, 190 (3d Cir. 2013) (emphasis added).
Although the Rule’s overlapping regulations themselves appear consistent with
EPA regulations,8 the Rule has potential conflict and inconsistency with the
implementation and enforcement provisions of the CAA. The Rule upends the CAA’s
cooperative federalism framework and usurps the authority Congress expressly delegated
under the CAA to the EPA, states, and tribes to manage air quality. See Texas v. U.S.
EPA, 690 F.3d 670, 674-75 (5th Cir. 2012) (discussing the CAA’s regulatory design
which requires cooperation between federal government and states in administering the
8

Indeed, BLM harmonized the definitions of certain terms with the overlapping EPA definitions in response to
public comments, see 81 Fed. Reg. at 83,047, and certain other provisions of the Rule are taken directly from EPA
air control requirements under 40 C.F.R. subparts OOOO or OOOOa.

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CAA).

For example, the Rule recognizes compliance with the EPA’s oil and gas

production facility performance standards as compliance with the Rule; but no similar
automatic compliance recognition exists for those very same standards if the EPA has
approved enforcement authority to a state.

See AR 365 (81 Fed. Reg. at 83,013).

Instead, the Rule requires states and tribes to request a variance from a particular BLM
regulation, placing the burden on the states and tribes to prove its already-EPA approved
rule “would perform at least as well as the BLM provision to which the variance would
apply, in terms of reducing waste of oil and gas, reducing environmental impacts from
venting and/or flaring of gas, and ensuring the safe and responsible production of oil and
gas.” Id. The Rule further empowers the BLM to enforce the state or tribal rules if the
variance is granted (id.), creating the potential for inconsistent or conflicting
enforcement.
The Rule also conflicts with the statutory scheme under the CAA for regulating air
emissions from oil and natural gas sources, particularly by extending its application of
overlapping air quality provisions to existing facilities, which the EPA itself has not yet
done. See 42 U.S.C. § 7411(d) (“[t]he Administrator shall prescribe regulations which
shall establish a procedure . . . under which each State shall submit to the Administrator a
plan which (A) establishes standards of performance for any existing source for any air
pollutant . . . and (B) provides for the implementation and enforcement of such standards
of performance”). While the EPA has begun the rulemaking process for regulation of

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existing sources under the CAA,9 the BLM has hijacked the EPA’s authority under the
guise of waste management.10 AR 371 (81 Fed. Reg. at 83,019).
Of course, BLM has authority to promulgate and impose regulations which may
have air quality benefits and even overlap with CAA regulations if such rules are
independently justified as waste prevention measures pursuant to its MLA authority.
“[A]n agency may not bootstrap itself into an area in which it has no jurisdiction.”
Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 650 (1990) (internal quotation marks and
citation omitted). In other words, the BLM cannot use overlap to justify overreach.
Petitioners contend the Rule is fundamentally an air quality regulation, not a resource
conservation rule.
Portions of BLM’s stated rationale for the Rule undermine Respondents’
insistence that the Rule is foremost a waste prevention regulation that simply has
incidental benefits to air quality: “wasted gas . . . contribute[s] to regional and global air
pollution problems of smog, particulate matter, and toxics, [and] vented or leaked gas
contributes to climate change, because the primary constituent of natural gas is methane,
an especially powerful greenhouse gas (GHG), with climate impacts roughly 25 times
those of carbon dioxide (CO2), if measured over a 100-year period, or 86 times those of
9

On June 3, 2016, the EPA issued a final rule entitled “Oil and Natural Gas Sector: Emissions Standards for New,
Reconstructed, and Modified Sources” published in the Federal Register at 81 Fed. Reg. 35824. A challenge to
EPA’s Rules has been filed in the United States Court of Appeals for the District of Columbia Circuit. See North
Dakota v. U.S. EPA, 16-1242.
10
One could also construe BLM’s incorporation of EPA’s air quality rules (OOOO and OOOOa) as doubling down
in the event the challenge to EPA’s final rule is successful. The BLM arrogantly justifies the Rule’s application of
overlapping air quality regulations to existing sources by expressing its dissatisfaction with the length of the CAA
process and the uncertainty of the resulting outcome. See 81 Fed. Reg. 83,019 (“Given the length of this [CAA]
process and the uncertainty regarding the final outcomes, and in light of the BLM’s independent statutory mandate
to prevent waste from Federal and Indian oil and gas leases based on information currently available, the BLM has
determined that it is necessary and prudent to update and finalize this regulation at this time.”).

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CO2, if measured over a 20-year period” (AR 361, 81 Fed. Reg. at 83,009); benefits of
the Rule measured as cost savings to industry and “the environmental benefits of
reducing the amount of methane [] and other air pollutants released into the atmosphere”
(id. at 366, 83,014); “the waste of natural gas also imposes public health and
environmental costs, in the form of air pollution, such as . . . emissions of methane, a
powerful contributor to global warming and a primary target for reduction under the
President’s Climate Action Plan” (id.); “[a]bsent stronger provisions to reduce natural gas
waste on Federal lands, the avoidable loss of gas will continue to threaten climate
stability and undermine respiratory and cardiovascular health” (id. at 366-67, 83,014-15).
Nevertheless, at this point, the Court cannot conclude that the provisions of the Rule
which overlap with EPA/state air quality regulations promulgated under CAA authority
lack a legitimate, independent waste prevention purpose or are otherwise so inconsistent
with the CAA as to exceed BLM’s authority and usurp that of the EPA, states, and tribes.
Thus, Petitioners have not shown a clear and unequivocal right to relief.
2.

Whether the Rule is Arbitrary and Capricious

Because the process by which an agency reaches a result must be “logical and
rational,” agency action must rest “on a consideration of the relevant factors.” Michigan
v. E.P.A., 135 S. Ct. 2699, 2706 (2015). Agency action may be arbitrary and capricious
where it has relied on factors which Congress did not intend the agency to consider.
National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007).
Taking at face value BLM’s assertion that the Rule “aims to reduce the waste of natural
gas,” the cost-benefit analysis should have been considered primarily in terms of waste
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prevention and not air pollution. See AR 360, 366 (81 Fed. Reg. at 83,008, 83,014).
Instead, the BLM appears to be propping up the benefits of the Rule in air quality terms.
The BLM estimates the net benefits of the Rule outweigh its costs by “a
significant margin,” producing net benefits ranging from $46 million to $204 million per
year depending on the discount rate used. AR 365 (81 Fed. Reg. at 83,013). Again,
depending on the discount rate used, BLM estimates costs (largely for engineering
compliance) will range from $110 million to $279 million per year. Id. BLM estimates
the Rule will result in monetized benefits of $209-$403 million per year. Of the total
benefits, however, $189-$247 million is attributable to the environmental benefit of
reducing the amount of methane released into the atmosphere, and the remainder of $20$157 million to the costs savings that industry will receive from the recovery and sale of
natural gas. AR 366 (81 Fed. Reg. 83,014). See also RIA at 5. BLM estimates the Rule
will produce additional royalties of $3-$14 million per year (depending on the discount
rate).11 Id. Thus, the Rule only results in a “net benefit” if the “social cost of methane” is
allowed to be factored into the analysis. RIA at 5-6.
The Court questions whether the “social cost of methane” is an appropriate factor
for BLM to consider in promulgating a resource conservation rule pursuant to its MLA
authority. Moreover, it appears the asserted cost benefits of the Rule are predominately
based upon the emission reductions, which is outside of BLM’s expertise, and not
attributable to the purported waste prevention purpose of the Rule. The question then

11

The total production of oil and gas in FY 2015 from federal and tribal leases generated over $2.3 billion in
royalties. AR 361 (81 Fed. Reg. at 83,009).

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becomes whether the Rule is arbitrary and capricious because it imposes significant costs
to achieve de minimus benefits. See Michigan v. EPA, 135 S. Ct. at 2707 (“Consideration
of cost reflects the understanding that reasonable regulation ordinarily requires paying
attention to the advantages and the disadvantages of agency decisions.”). The BLM
contends compliance costs are not the appropriate measure of the Rule’s reasonableness,
and it is appropriate to consider the environmental and related social benefits of the Rule.
Again, though the Court has concerns in this regard, it cannot conclude at this point that
the Rule is arbitrary and capricious and Petitioners have shown a clear and unequivocal
right to relief. See National Cable & Telecommunications Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 981 (2005) (under step two of Chevron, court required to accept
agency’s construction of statute even if agency’s reading differs from what court believes
is best interpretation).
B.

Irreparable Harm
The irreparable harm factor requires a party “seeking preliminary relief to

demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). To satisfy
the irreparable harm requirement, a movant must demonstrate “a significant risk that he
or she will experience harm that cannot be compensated after the fact by monetary
damages.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009) (quoting
Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003)). A court
must further assess “whether such harm is likely to occur before the district court rules on
the merits.” Id. (quoting Greater Yellowstone Coal., 321 F.3d at 1260). “[T]he party
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seeking injunctive relief must show that the injury complained of is of such imminence
that there is a clear and present need for equitable relief to prevent irreparable harm.”
Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal
quotation marks and citation omitted).
The State Petitioners assert irreparable harm resulting from the Rule’s
infringement on their sovereign authority and interests in administering their own
regulatory programs governing air emissions from oil and gas production. However,
State regulations will continue to apply to oil and gas operations in tandem with the Rule,
just as operators are currently subject to both States’ rules and NTL-4A. Further, the
Rule requires BLM to coordinate with States when BLM action to enforce the Rule could
adversely affect production of state or private mineral interests. See 43 C.F.R. § 3179.12.
While the overlapping and potentially conflicting regulations may interfere with the
implementation and enforcement rights Congress gave to the states under the CAA,
which would likely occur immediately upon the Rule becoming effective, the Court
cannot say there is no legitimate, independent waste prevention purpose in those
regulations, which is within the BLM’s statutory authority to regulate.

Unlike the

situation in State of Wyoming, et al. v. Dep’t of Interior, No. 15-CV-043-S (Sept. 30,
2015) (Order on Motions for Preliminary Injunction), there has been no express
announcement by Congress that the activities in question are not subject to federal
regulation. Because the overlapping regulations themselves appear consistent with the
State Petitioners’ own regulations, albeit with broader application to existing sources, the
Court is not convinced the BLM’s exercise of overlapping authority will interfere with
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the States’ sovereign interests in, and public policies related to, regulation of air
emissions to the point of causing irreparable harm to the State Petitioners pending this
Court’s ruling on the merits.
The State Petitioners further contend irreparable harm through economic losses in
the form of decreased tax revenue and lost jobs from delay in production and avoidance
of development in states with significant federal land. To be sure, to the extent such
losses would be permanent, they are irreparable because the States cannot recover money
damages from the federal government. See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d
1140, 1157 (10th Cir. 2011) (explaining that while economic loss is usually insufficient
to constitute irreparable harm, “imposition of money damages that cannot later be
recovered for reasons such as sovereign immunity constitutes irreparable injury”).
However, the Court finds the States’ assertion of economic loss to be speculative and
unsupported by facts. “To constitute irreparable harm, an injury must be certain, great,
actual and not theoretical.” Heideman, 348 F.3d at 1189 (internal quotation and citation
omitted).
Again, Petitioners have not shown BLM’s overlapping “air quality” regulations to
be inconsistent or significantly more onerous than the EPA’s or the States’ own
regulations. Neither have Petitioners shown the Rule’s application will hamper or delay
oil and gas production to the extent of causing imminent irreparable harm to the States’
economic interests. Moreover, the Rule provides for several economic exemptions where
an operator shows, and BLM concurs, that compliance with the Rule’s requirements
“would impose such costs as to cause the operator to cease production and abandon
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significant recoverable oil reserves under the lease.” See, e.g., 43 C.F.R. § 3179.102(c)
(exemption from requirements related to well completion); § 3179.201(b)(4) (exemption
from pneumatic controllers requirements); § 3179.202(f) (exemption from pneumatic
diaphragm pump requirements); § 3179.203(c)(3) (exemption from storage vessels
requirement); § 3179.303(c) (operator may request approval of a leak detection program
that does not meet criterion specific in § 3179.303(b)).
The Industry Petitioners assert irreparable harm through: (1) costs of compliance;
(2) disclosure of proprietary, confidential, and competitive information; and (3) payment
of royalties on gas BLM has characterized as “avoidably lost.” First, Industry Petitioners
cannot demonstrate irreparable harm based on paying royalties on gas the Rule deems
“avoidably lost” because, if Petitioners ultimately prevail on the merits and the Court sets
aside the Rule’s royalty requirements, any overpaid royalties can be recovered from the
agency. See 30 U.S.C. § 1721a.
Additionally, though there are undoubtedly certain and significant compliance
costs attached to the Rule, which are unrecoverable from the federal government, the
Court is not convinced that these costs are of “such imminence that there is a clear and
present need for equitable relief to prevent irreparable harm.” Industry Petitioners point
to a statement in the Regulatory Impact Analysis that the “requirements to replace
existing equipment would necessitate immediate expenditures.” RIA at 4 (emphasis
added). However, many of the Rule’s requirements, including equipment replacement,
do not take effect for a year. See, e.g., 43 C.F.R. § 3179.7 (gas capture); § 3179.201
(pneumatic controllers); § 3179.202 (pneumatic diaphragm pumps); § 3179.203 (storage
- 25 -

vessels). And any alleged expenses associated with “immediate action to begin Rule
implementation and compliance planning” are simply too uncertain and speculative to
constitute irreparable harm. (See Sgamma Dec. ¶ 8; Industry Pet’rs’ Br. at 49, Ex. 5.)
Industry Petitioners further argue the Rule will cause irreparable harm because it
requires their members to provide to BLM information they consider proprietary,
confidential, and competitive without assurances BLM can or will protect this
information from disclosure. “A trade secret once lost is, of course, lost forever.” FMC
Corp. v. Taiwan Tainan Giant Indus. Co., Ltd., 730 F.2d 61, 63 (2nd Cir. 1984). The
only specific example offered by Petitioners is the information required in the waste
minimization plan that must accompany an APD, including anticipated production from a
proposed well, the expected production decline curve of oil and gas from the well, and
the expected Btu value for gas production from the proposed well. See 43 C.F.R. §
3162.3-1(j)(2)(i)-(iv). In response to a public comment requesting disclosure of waste
minimization plans, BLM stated it will publicly post the waste minimization plans
accompanying the APDs, “subject to any protections for confidential business
information.” AR 395 (81 Fed. Reg. at 83,043). The BLM further stated: “operators
routinely provide information to the BLM that they consider confidential; if they indicate
on the Sundry Notice that the information is considered confidential, the BLM will
handle the information in accordance with applicable regulations.” Id. at 403, 83,051.
The Industry Petitioners have not shown that BLM’s existing confidentiality protections
are inadequate to protect the information required in the waste minimization plans. See

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§§ 2.26-2.36. Thus, the Court finds Petitioners have failed to establish that irreparable
injury is likely in the absence of an injunction.
C.

Balance of Equities and Public Interest
Having concluded Petitioners have not clearly and unequivocally established a

likelihood of success on the merits and irreparable harm, the Court need not address the
remaining factors that must be shown to obtain a preliminary injunction. Still, the Court
feels compelled to briefly touch upon these factors with a few observations.
The third preliminary injunction factor requires the Court to determine whether the
threatened injury to the movants outweighs the injury to the opposing party under the
injunction. Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012); Sierra Club, Inc. v.
Bostick, 539 F. App’x 885, 889 (10th Cir. 2013). The Court finds the balance of harms in
this case does not tip decidedly in either side’s favor. Though Petitioners have not shown
a likelihood of irreparable harm justifying an injunction, neither have Respondents shown
substantial harm if an injunction were granted. BLM has been regulating oil and gas
waste pursuant to NTL-4A for 30 years. The asserted need to update BLM’s rules to
account for technological advances does not seem so pressing that appreciable harm will
result to BLM if the Rule’s effective date is delayed pending this Court’s ruling on the
merits. The asserted benefits of the Rule are found largely in the social benefits of
reducing emissions of methane and other pollutants, which is already subject to EPA and
state regulations.
Finally, public interest factors also support both sides of the issue. The public
interest is served by preserving the status quo, particularly where the balance of harms
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does not tip decidedly in either side’s favor. See O Centro Espirita Beneficiente Uniao
Do Vegetal v. Ashcroft, 389 F.3d 973, 1001-02 (10th Cir. 2004) (en banc) (Seymour, J.,
concurring in part, dissenting in part). A preliminary injunction would not be adverse to
the public interest in resource conservation because the BLM already has regulations in
place to prevent waste and many of the Rule’s provisions do not take effect for a year;
nor would an injunction be adverse to the public interest in clean air because the EPA and
State Petitioners already regulate emissions from oil and gas production, albeit not as
broadly as the Rule contemplates. A preliminary injunction would also sidestep the
costly implementation of duplicative and potentially unlawful regulations. So, while the
Rule itself is arguably in the public’s interest in resource conservation and air quality, a
preliminary injunction would not necessarily be adverse to those interests.
CONCLUSION
Under the MLA, Congress has vested the Secretary with the authority to prescribe
rules for the prevention of undue waste of mineral resources. Having done so, at this
stage and applying the deference as required under Chevron, this Court cannot conclude
the Rule enacted exceeds the Secretary’s authority or is arbitrary and capricious.
Petitioners have not established their right to relief is clear and unequivocal. Petitioners
have failed to establish all four factors required for issuance of a preliminary injunction,
so their respective motions must be denied.

The Court will, however, entertain

Respondents’ suggestion of an expedited briefing schedule on the merits. THEREFORE,
it is hereby

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ORDERED that Wyoming and Montana’s Motion for Preliminary Injunction
(ECF No. 21), North Dakota’s Motion for Preliminary Injunction (ECF No. 39), and the
Motion for Preliminary Injunction filed by Petitioners Western Energy Alliance and the
Independent Petroleum Association of America (ECF No. 12 in 16-CV-280) are
DENIED; it is further
ORDERED that Respondents shall lodge the administrative record on or before
February 21, 2017. Petitioners shall file their opening briefs within thirty (30) days after
the date on which the record is lodged. Respondents shall file their briefs within twenty
(2) days after service of the Petitioners’ briefs. Reply briefs shall be filed within ten (10)
days after service of the Respondents’ briefs. The parties shall otherwise comply with
U.S.D.C.L.R. 83.6.
DATED this 16th day of January, 2017.

Scott W. Skavdahl
United States District Judge

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