Opinion
Cause Nos. CV 03-69-BLG-RWA, CV 03-78-BLG-RWA.
February 25, 2005
ORDER
Pending before the Court are the parties' cross-motions for summary judgment in this action for judicial review of agency action. Having considered the briefs of the parties, the administrative record, and the arguments advanced in open court on September 9, 2004, the Court is prepared to rule.
Pursuant to 28 U.S.C. § 636(c) and the written consent of the parties, these cases were assigned to the undersigned United States Magistrate Judge for all proceedings, including trial and entry of judgment, by District Judge Richard F. Cebull in orders dated August 15, 2003, in Cause No. CV 03-69-BLG-RWA, and August 22, 2003, in Cause No. CV 03-78-BLG-RWA.
BACKGROUND
In these consolidated cases, plaintiff in Cause No. CV 03-69-BLG-RWA, Northern Plains Resource Council (NPRC), and plaintiffs in Cause No. CV 03-78-BLG-RWA, Northern Cheyenne Tribe and Native Action (collectively referred to as the Tribe), challenge the April 2003 decision by the Bureau of Land Management (BLM) to approve the Final Statewide Oil and Gas Environmental Impact Statement (FEIS) and proposed amendments to the Resource Management Plans (RMPs) authorizing full-field coal bed methane (CBM) development in the Powder River and Billings Resource Areas of Montana. Plaintiffs in both cases contend that BLM's decision violates the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. In addition, the Tribe alleges that the decision violated the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq., the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq., and constitutes a breach of the government's fiduciary duty to protect Tribal interests and resources.The Powder River Basin of southeastern Montana and north central Wyoming is a sparsely populated, semi-arid grassland. Most of the land is used for cattle ranching, farming, and coal mining.
Domestic and livestock water supplies in the area are dependent upon groundwater, which provides "almost 100% of the domestic water for farmsteads" and "the largest percentage of dependable stock water." FEIS at 3-32. Both ground and surface waters provide irrigation for crops. In addition, the surface waters and the riparian habitat they support provide critical habitat for native fish and wildlife populations.
Vast quantities of CBM are generated by coal deposits underlying the Powder River Basin. The methane is trapped in the coal seams by the pressure of groundwater. Releasing the pressure of groundwater from the coal aquifers liberates the methane, allowing it to be produced and sold.
In the early 1990s, BLM analyzed conventional oil and gas development in the Billings and Powder River Resource Areas. In 1994, BLM adopted the analysis and amended the existing RMP.
This previous RMP amendment will hereinafter be referred to as the 1994 Amendment.
Although CBM is considered to be part of the oil and gas estate, the 1994 Amendment only briefly addressed the environmental impacts of CBM development because, at that time, only low levels of CBM production were anticipated. After analyzing the impacts of limited production, BLM determined that small-scale development and exploratory drilling would not cause significant environmental impacts. BLM recognized, however, that further environmental analysis would be needed before commercial production would be allowed.
The Reasonably Foreseeable Development projections can accommodate the drilling of test wells and initial small-scale development of coal bed methane. . . . This amendment does not contain either a hydrologic analysis of the RFD area or an environmental study of the impacts of building major pipeline systems. In order for full-field development to occur on Federal oil and gas lands, an additional environmental document tied to this amendment would be required.
A.R. § VI.D.45 at 18.
Between 1997 and 2001, BLM held 23 competitive oil and gas lease sales. By 2001, approximately 867,000 acres within six counties in the Billings and Powder River Resource Management Areas, including 46% of the federal minerals in the Powder River Basin, had been leased. None of the leases contained stipulations prohibiting CBM production.
Much of the federal minerals underlie lands owned by private parties. Under this "split estate" scheme of ownership, the rights of the mineral owners predominate over those of the surface owners.
In 2000, BLM decided that the time had come to further analyze the impacts of CBM development. In July of that year, BLM determined that Fidelity Exploration Production Company's proposal to develop its Tongue River CBM Project would result in significant environmental impacts, requiring the preparation of an EIS. Shortly thereafter, in October 2000, at a meeting of the Coal Bed Methane Coordination Group, industry predicted that it would drill approximately 10,000 CBM wells in the Montana portion of the Powder River Basin over the next 10 years. Two months later, in December 2000, BLM published in the Federal Register a notice of intent to prepare a programmatic EIS to consider amendments to the 1994 Amendment.
The Montana BLM's decision to prepare an EIS came some six months after a similar decision by the Wyoming BLM. In June 2000, the Wyoming BLM had begun an EIS on the effects of CBM production on the Wyoming portion of the Powder River Basin.
The State of Montana acted as a co-lead agency in the development of Montana's 2003 FEIS. The Environmental Protection Agency (EPA), the Bureau of Indian Affairs (BIA), the Department of Energy (DOE), and the Crow Tribe of Indians all participated as cooperating agencies. Although it chose not to become a cooperating party, the Northern Cheyenne Tribe actively participated in the process and undertook two studies funded by BLM concerning several issues relevant to Tribal interests.
In preparing the draft EIS (DEIS), BLM held five public scoping meetings and six public hearings. It published the DEIS in the Federal Register on February 15, 2002. During the following 60-day public comment period, BLM held six public hearings throughout Montana and received more than 25,000 comments, both oral and written.
Some of the comments, including those of the EPA and the Fish and Wildlife Service, criticized BLM for failing to assess the cumulative environmental impacts of CBM production in the Montana and Wyoming portions of the Powder River Basin in a single EIS. In response, the Montana and Wyoming agencies worked together to prepare joint cumulative impact statements for air and surface water. These new analyses were included in the Montana FEIS.
The FEIS was published in the Federal Register on January 17, 2003. Pursuant to 43 C.F.R. § 1610.5-2(a), members of the public who participated in the planning process had an additional 30-day opportunity to review the FEIS and to protest BLM's proposed decision. None of the protests resulted in changes to the proposed FEIS, and in April 2003, BLM issued its Record of Decision approving the FEIS and RMP amendments.
These suits were filed immediately thereafter. In its complaint, NPRC alleges that BLM violated NEPA by failing to combine the Montana and Wyoming studies in a single EIS. NPRC also alleges that BLM violated NEPA's comment and participation requirements by failing to prepare a supplement to the DEIS.
Both NPRC and the Tribe contend that the FEIS is inadequate because it fails to consider any alternatives to full-field development. They also contend that BLM failed to take a hard look at the impacts of CBM development on groundwater, surface water, air quality, wildlife, aquatic life, noise, and traffic. The Tribe additionally argues that BLM failed to take a hard look at the socioeconomic and cultural effects of CBM development on the Northern Cheyenne Tribe.
Finally, the Tribe claims that BLM failed to engage in formal consultation with the Tribe over the effects of these federal undertakings on the Tribe's cultural and historical resources.
All parties have filed cross motions for summary judgment on these issues. The federal defendants and the intervenors have also moved to strike extra judicial material filed by plaintiffs in support of their summary judgment motions. These motions are the subject of the following discussion.
Marathon Oil Company, Pennaco Energy, Inc., Anadarko Petroleum Corporation, Devon Energy Corporation, and Fidelity Exploration Production Company have been allowed to intervene as defendants in both actions. Intervenors have filed a motion for summary judgment in each of the consolidated cases.
DISCUSSION A. Statutory Framework
1. The Administrative Procedure Act
Judicial review of agency action is governed by the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. Review is narrow. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). An agency's actions, findings, and conclusions will be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2) (A).
In determining whether a decision is arbitrary and capricious, the Court "`must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" Hells Canyon Alliance v. United States Forest Service, 227 F.3d 1170, 1177 (9th Cir. 2000). (quoting Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d 569, 573 (9th Cir. 1998)). The Court must not substitute its judgment for that of the agency. Id. Instead, in environmental actions, the Court "must simply ensure that the agency has adequately considered and disclosed the environmental impact of its actions[.]" Id.
2. The National Environmental Policy Act
NEPA "is our basic national charter for protection of the environment." Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 993 (9th Cir. 2004) (quoting 40 C.F.R. § 1500.1(a)). A procedural statute, NEPA mandates the preparation of an EIS before an agency takes "major Federal actions significantly affecting the quality of the human environment[.]" 42 U.S.C. § 4332(2) (C). An EIS must address both the cumulative impacts of a proposed action and reasonable alternatives thereto. Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800, 809 (9th Cir. 1999).
NEPA has "`twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.'" Kern v. United States BLM, 284 F.3d 1062, 1066 (9th Cir. 2002) (quoting Baltimore Gas Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983)). "NEPA does not contain substantive environmental standards." Id. Rather, it "exists to ensure a process, not particular substantive results[.]" Hells Canyon Alliance, 227 F.3d at 1177. It "`establishes `action-forcing' procedures that require agencies to take a `hard look' at environmental consequences.'" Kern, 284 F.3d at 1066 (quoting Metcalf v. Daly, 214 F.3d 1135, 1141 (9th Cir. 2000)).
In evaluating the adequacy of an EIS, the Ninth Circuit employs a "rule of reason to determine whether the EIS contains a `reasonably thorough discussion of the significant aspects of probable environmental consequences.'" Id. at 1071 (quoting Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir. 1998)). This "rule of reason" analysis is essentially the same as an abuse of discretion standard. Id. at 1072. The Court reviews an EIS to ensure that its "`form, content and preparation foster[ed] both informed decision-making and informed public participation.'" Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1062-63 (9th Cir. 1998) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992)). However, the Court need not flyspeck the document. Id. at 1063. If the Court is satisfied that the agency took a "hard look" at a proposed action's environmental consequences, judicial review is at an end. Id.
In construing NEPA, the Court gives substantial deference to implementing regulations issued by the Council on Environmental Quality (CEQ) found at 40 C.F.R. §§ 1500-1508. Center for Biological Diversity v. United States Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003). The procedures prescribed both in NEPA and the CEQ regulations "are to be strictly interpreted `to the fullest extent possible' with the policies embodied the Act." Id. (quoting 42 U.S.C. § 4332(1)).
3. Reasonable Range of Alternatives
Under NEPA, an EIS must include a detailed statement of alternatives to the proposed action. 42 U.S.C. § 4332(2) (C) (iii). The alternatives analysis, which is the "heart" of an EIS, requires an agency to rigorously explore and objectively evaluate all reasonable alternatives, and to briefly discuss the reasons for eliminating other alternatives from detailed study. 40 C.F.R. § 1502.14(a).
The purpose and need statement of an EIS, which briefly specifies "the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action[,]" 40 C.F.R. § 1502.13, defines the range of alternatives to be considered by the agency. City of Carmel-by-the-Sea v. United States Dept. of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). "The agency must look at every reasonable alternative within the range dictated by the nature and scope of the proposal. The existence of reasonable but unexamined alternatives renders an EIS inadequate." Friends of Southeast's Future, 153 F.3d at 1065 (internal quotation omitted).
An EIS need not, however, "consider an infinite range of alternatives, only reasonable or feasible ones." City of Carmel, 123 F.3d at 1155. Thus, an agency need consider only those alternatives that achieve its stated purpose and goal. The Island Range Chapter of the Montana Wilderness Ass'n v. United States Forest Serv., 45 F.Supp 2d 1006, 1009 (D. Mont. 1996), aff'd 117 F.3d 1425 (9th Cir. 1997). Alternatives that are remote, speculative, ineffective, or inconsistent with basic policy objectives need not be considered. Headwaters, Inc. v. BLM, Medford Dist., 914 F.2d 1174, 1180 (9th Cir. 1990). "When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved." City of Angoon v. Hodel, 803 F.2d 1016, 1021 (9th Cir. 1986).
A. Phased Development
Turning to the present case, NPRC and the Tribe both argue that the EIS was inadequate because it failed to consider any lesser degree of development than full-field development. NPRC and the Tribe contend that BLM should have examined phased development as an alternative to full-field planning so that the environmental effects of CBM production could have been more accurately measured.
BLM examined five alternatives: Alternative A, the no-action alternative required by 40 C.F.R. 1502.14(d), which provided a basis for comparison with the proposed action; Alternative B, which emphasized environmental protection; Alternative C, which emphasized CBM development with minimal restrictions; Alternative D, which encouraged CBM development while maintaining existing land uses; and Alternative E, the preferred, and ultimately adopted alternative, which provided "management options to facilitate CBM exploration and development, while sustaining resource and social values, and existing land uses." FEIS at 2-13. BLM admits that all four of its action-based alternatives considered full-field development of CBM. It argues, however, that any lesser degree of development would not have achieved the objectives of the EIS.
To determine whether BLM's contention is correct, the Court looks to the Purpose and Need Statement, which provides in pertinent part:
The purpose of the EIS is to analyze impacts from oil and gas activity, particularly from CBM exploration, production, development, and reclamation in the Billings and Powder River Resource RMP areas. This EIS is being used to analyze options for BLM to change its planning decisions by considering oil and gas management options including mitigating measures that will help minimize the environmental and social impacts related to CBM activities. The alternatives presented provide a range of management options for amending the RMPs. . . . The EIS will focus the analysis on the oil and gas development issues not covered in the current RMPs, such as water management from CBM production.
FEIS at 1-2.
The Purpose and Need Statement requires BLM to analyze options for managing the environmental effects of CBM "exploration, production, development, and reclamation. . . ." Id. Nothing in the Statement restricts those options to full-field development. Rather, the goal of the EIS is to determine what options, including mitigating measures, "will help minimize the environmental and societal impacts related to CBM activities." Id. Phased development, such as controlling the number of rigs operating in an area or developing one geographic area at a time, as suggested by plaintiffs, the EPA and the Montana Department of Fish Wildlife and Parks (FWP), would not hinder this goal. To the contrary, a phased development alternative would serve the stated purpose and need of the EIS by providing additional options for minimizing impacts related to CBM exploration, production, and development.
In its scoping comments, the EPA wrote:
There may be significant impacts related to constructing oil and gas infrastructure due to the "boom and bust" nature of the coal-bed methane development. Therefore, we suggest that the range of alternatives include a phased development alternative. Just as determining where oil and gas development is appropriate, determining when development is appropriate is also a consideration of the RMP. An alternative that incorporates a phased development of coal-bed methane could help reduce the significance of impacts by spreading them out over a period of time. Preparing infrastructure for peak production during a boom results in environmental impacts that could have been minimized through a planned or phased approach to development. For example, a phased approach would reduce impacts from larger volumes of surface water discharges that would be encountered if drilling and production are allowed to proceed without timing restrictions.
AR § III, File A, Doc. 2 at 8.
FWP commented on the DEIS as follows:
FWP believes that an action alternative capable of reducing or minimizing negative impacts to fish and wildlife resources must rely on phased development over time. A phased approach would allow the responsible agencies to evaluate the effects of development on existing land uses and natural and cultural resources and through a deliberative, adaptive management process, devise strategies to prevent or reduce the detrimental effects of future development found to be irreparable or unmitigatable.
As such, FWP recommends that a phased development approach be added to the conditions of Alternative B. Timing and spacing of the phased approach needs to be determined, but it is suggested that a starting point would be to lease and permit 20-35% of the potential lands (depending on geology), with clustered development.
AR, § 4, File E, Doc. 2 at 2.
The comments go on to describe the benefits of this approach and to further suggest that phased development be incorporated into the Preferred Alternative.
A phased development alternative was within the range of reasonable alternatives set forth in the Purpose and Need Statement. A phased development alternative should therefore have been given detailed consideration, unless, as BLM argues, such a planning tool would not have been feasible under the circumstances.
In the FEIS, BLM acknowledged that it had been presented with several different ideas for phased development:
Staged or phased development was presented to BLM during scoping in several ways. First, the number of rigs operating in the emphasis area could be controlled and leases could be developed in stages. Second, companies would be allowed to develop production in one geographic area at a time and when complete, move to another. Lastly, corridors could be left undeveloped to allow for wildlife movement. FIES 2-4.
Considering this section of the EIS, the Court finds it somewhat disingenuous for BLM to now argue that it was not presented with any specific proposals for phased development.
The FEIS then stated the following reasons for rejecting these proposals:
BLM has a legal obligation to ensure that leased federal minerals are reasonably developed and that federal minerals are not drained by production that occurs on non-federal leases. The State of Montana and private parties own much of the minerals and surface in the emphasis area, resulting in a checkerboard pattern that could compromise the BLM's legal obligation to protect federal minerals.
This alternative is not reasonable in the case of oil and gas leases because each lessee has an investment-backed expectation that its applications for permits to drill will be considered in a timely manner and approved absent unacceptable site-specific impacts. See the Supreme Court decision in Mobil Oil Exploration and Producing Southeast, Inc. v. United States, 530 U.S. 604, 620 (2000), which found a breach of contract when the Minerals Management Service, pursuant to a later adopted statute, would not review and make a timely decision on development plans per the regulations. In addition, the Mineral Leasing Act and 43 CFR 3100 require maximum ultimate recovery of oil and gas from leased lands. In light of the broad geographic distribution of leases in the Powder River Basin, phased development in any fashion would not allow compliance with the above requirements.
Although, BLM must balance these mandates with its responsibility to use multiple use principles to prevent unnecessary or undue degradation in managing the public lands pursuant to FLPMA. This document does not support a finding that these competing responsibilities would be in conflict.Id.
This sentence is correctly quoted from the FEIS. Even so, the Court has struggled to make sense of it.
According to this explanation, BLM's decision not to undertake a detailed study of a phased development alternative rested on two premises: its duty to prevent drainage of leased federal minerals and its concern that phased development would interfere with the rights of leaseholders. Both premises rest on the erroneous assumption that, having leased the mineral rights, BLM could not control the pace of production.
First, it may be true that BLM is legally required to maximize federal oil and gas resources and prevent drainage of federal minerals. Nevertheless, these duties do not obviate the need for NEPA analysis. While depletion of CBM may be a valid concern, that concern must be balanced against the environmental and societal impacts resulting from CBM production. It does not justify BLM's failure to consider a phased development alternative in detail, especially where, as here, the minerals were leased before the environmental impacts of CBM development had been analyzed and where a phased development alternative fell within the scope of alternatives established by the agency's stated purpose and need.
Second, the "investment-backed rights" of holders of oil and gas leases are not absolute. They are limited by previously established RMPs, in this case, the 1994 Amendment, which gave federal leaseholders of oil and gas interests in the Powder River Basin "only the right to undertake exploratory drilling and small-scale development of CBM resources." NPRC v. United States BLM, 298 F.Supp.2d 1017, 1024 (D.Mont. 2003), aff'd on other grounds, 107 Fed.Appx. 166 (9th Cir. 2004).
Unlike the case cited in the FEIS, Mobil Oil Exploration and Producing SouthEast, Inc. v. United States, 530 U.S. 604 (2000), where the United States sought to restrict the rights of the leaseholders, the purpose of the EIS in this case is to expand the rights of the lessees to allow them to develop CBM resources on a larger scale than permitted under the 1994 Amendment. See FEIS at 2-2 ("The purpose of this document is to analyze levels of conventional oil and gas and CBM development that are greater than those analyzed in the [1994 Amendment].") A management plan that permits development in stages, rather than all at once, is not inconsistent with this goal. Phased planning would allow development to proceed, albeit at a more controlled pace than the full-scale development alternatives studied in the FEIS. Phased development would not incorrectly restrict the rights of leaseholders whose only investment-backed expectations at the time they purchased their leases were that they would be allowed to conduct exploratory drilling and small-scale development of CBM.
To find that the lessees obtained rights greater than this would mean that, when it issued the leases, BLM violated NEPA by making an irreverible and irretrievable commitment of CBM resources prior to undertaking the requisite environmental analysis. Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000); Connor v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988). BLM's discretion to impose restrictions on CBM development could not lawfully have been limited by leasing decisions made under the 1994 Amendment because that document expressly declined to analyze the impacts of full-field CBM development. Because no analysis of full-scale CBM development preceded the issuance of leases under the 1994 Amendment, the leases created no legally enforceable leasehold rights or investment-backed expectations in full-field CBM development.
Nor is phased development the functional equivalent of a no-action alternative, as BLM argues. Pursuant to regulation, 40 C.F.R. § 1502.14(d), and in order to establish a baseline for comparison with the proposed project, the EIS included a no-action alternative (Alternative A). This alternative would have continued existing management, limiting CBM activity to exploration and limited development. Such an alternative clearly would not have promoted the purposes of the EIS, which was to change planning decisions to allow for increased CBM production. Phased development, i.e., developing leases in stages or allowing production in one geographic area at a time allows for the production of CBM resources. It is not the functional equivalent of the no-action alternative.
Pit River Tribe v. BLM, 306 F.Supp.2d 929 (E.D.Cal. 2004), upon which BLM relies, is inapposite. In that case, BLM had approved a site-specific geothermal project after considering a no-action alternative and six alternatives that differed only in the placement of the project's power line. The Tribe argued that the FEIS was inadequate because it failed to consider anything other than geothermal technology. The court found that the alternatives suggested by the Tribe were unnecessary because they amounted to the functional equivalent of the no-action alternative.
In Pit River, unlike the pending cases, a programmatic FEIS approving the use of geothermal energy was already in place. Because BLM had already decided in the earlier programmatic FEIS to develop geothermal power, the Tribe's challenges based on alternative sources of energy came too late. As the court noted, "The sorts of alternatives suggested by the plaintiffs are more appropriate to earlier NEPA documents, and, indeed, the programmatic EIS for the Geothermal Steam Act did consider alternative sources of energy. . . ." Id. at 940.
Here, unlike Pit River, the FEIS does not involve a site-specific project. Instead, the FEIS is a programmatic plan for the broad scope of development of CBM resources. Because no prior NEPA document has ever analyzed the environmental effects of CBM development in the area, this is precisely the place for BLM to consider alternatives varying the pace and geographical sites of development.
In sum, the Court finds that a phased development alternative is consistent with the purpose of the EIS, which was to analyze options for developing CBM resources in a manner that would minimize the societal and environmental impacts resulting from such development. The reason offered by BLM for rejecting phased development alternatives premised on the assumption that BLM's prior issuance of oil and gas leases committed it to total and immediate full-field development is legally untrue. BLM's failure to analyze a phased development alternative renders the EIS inadequate.
Indeed, as FWP observed, a phased development alternative approach fits hand-in-hand with the adaptive management approach BLM subscribes to throughout the FEIS.
B. Reinjection and other alternatives.
Management of the wastewater produced by CBM drilling presents one of the greatest challenges associated with CBM production. NPRC contends that BLM failed to consider an alternative requiring the re-injection of produced water from CBM production into depleted coal seams. BLM responds that re-injection was rejected as an infeasible alternative because a coal seam must be depressurized in order to liberate methane. Re-injection of produced water would repressurize the seam, resulting in a decrease in methane production. As this dilemma was recognized by NPRC's own consultant, the Court cannot say that BLM unreasonably failed to give re-injection detailed consideration.
Although BLM did not consider re-injecting wastewater into producing coal seams to be a viable option, Alternative B examined the possibility of injecting produced water into non-productive seams that were geologically separated from producing CBM fields. Alternative E, the preferred alternative, also included injection as an option for dealing with produced water, although it emphasized beneficial use as the preferred method for wastewater management.
Perhaps BLM did not consider every possible manner for wastewater management through injection or re-injection. However, the agency need not consider an endless range of possibilities. Nor need the agency adopt every method suggested by commentators and experts. The Court cannot find that BLM's treatment of injection options was unreasonable.
In two sentences, NPRC criticizes BLM for allegedly failing to adopt best available control technology for minimizing emissions from gas-fired compressors or for treatment of wastewater. Suffice it to say that the Court will not consider the merits of arguments that the parties have made no effort to develop in their briefs. NPRC's criticisms regarding best available technologies are rejected.
4. A Single EIS
NPRC contends that BLM violated NEPA by completing two separate EISs for the Wyoming and Montana portions of the Powder River Basin. NPRC argues that the two EISs were both cumulative and similar actions that necessitated the preparation of a single EIS covering the entire Basin.
Federal agencies are given considerable discretion to define the scope of NEPA review. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 894 (9th Cir. 2002). However, "connected, cumulative, and similar actions must be considered together to prevent an agency from `dividing a project into multiple `actions' each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.'" Id. (quoting Thomas v. Peterson, 753 F.3d 754, 758 (9th Cir. 1985)). Thus, 40 C.F.R. § 1508.25 requires that "two or more agency actions must be discussed in the same impact statement where they are `connected' or `cumulative' actions." Klamath-Siskiyou, 387 F.3d at 999. "Where the proposed actions are `similar,' the agency `may wish' to assess them in the same document and `should do so' when a single document provides the `best way to assess adequately the combined impacts of similar actions. . . .'" Id. (quoting 40 C.F.R. § 1508.25(a) (3).
Cumulative actions are those that "when viewed with other proposed actions have cumulatively significant impacts. . . ." 40 C.F.R. § 1508.25(a) (2). Cumulative impacts are those that result from "the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. . . . Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7.
NPRC maintains that CBM development will have cumulative impacts on air quality, surface water quality, groundwater resources, and wildlife that will cut across the state lines dividing the Powder River Basin. According to NPRC, when two proposed actions will occur in a distinct geographic region such as the Powder River Basin, the impact analysis should be combined in a single EIS.
While NPRC's argument is facially attractive, agencies may consider factors in addition to geographic area when determining whether to conduct one or more environmental analyses. As the Supreme Court has noted, "Even if environmental interrelationships could be shown conclusively to extend across basins and drainage areas, practical considerations of feasibility might well necessitate restricting the scope of comprehensive statements." Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976). The key question is whether "the record suggests that the agency intended to segment review to minimize cumulative impact analysis." Earth Island Inst. v. United States Forest Service, 351 F.3d 1291, 1305 (9th Cir. 2003) (emphasis in original).
Here, sufficient practical considerations justified BLM's decision to conduct two separate studies of the area. First, the timing of the proposals, at least initially, differed by some six months. Next, the scope of the studies differed. Wyoming began its environmental process in response to a specific industry project proposing to drill 39,000 CBM wells in the Wyoming portion of the Powder River Basin. The Wyoming EIS accordingly focused on that geographic area. The Montana process evolved initially from a site-specific analysis of a project proposed by Fidelity Exploration Production Company to develop the Tongue River Project and ultimately from an October 2000 meeting of the Coal Bed Methane Coordination Group at which industry predicted that it could drill up to 10,000 wells in the Montana portion of the Powder River Basin. Although the federal analysis centers around the Powder River Basin, the Montana EIS is a statewide planning device, encompassing areas and impacts beyond the Powder River Basin.
In addition, the pace of CBM development varied greatly between the two states. CBM exploration in the Wyoming portion of the Basin began in 1988. By June 2000, when the Wyoming BLM commenced its EIS process, 4,866 CBM wells had already been drilled. Of this number, 759 were federal wells. At the same time, the Montana CBM industry was in its infancy. Its first proposal for CBM development was received in 1998, with Fidelity's application to develop the Tongue River Project. By June 2000, there were no producing federal CBM wells.
Many different agencies cooperated in the preparation of the EISs. In Wyoming, the U.S. Forest Service, Medicine Bow National Forest, and the State of Wyoming were cooperating agencies. Five conservation districts, four counties, and four state agencies also assisted in the preparation of the Wyoming FEIS. In Montana, the State of Montana was a co-lead agency, with EPA, DOE, BIA, and the Crow Tribe of Indians serving as cooperating agencies. With the involvement of all of these different agencies, it would have been extremely difficult for all parties to come together to prepare a single environmental document.
The Wyoming and Montana BLMs considered developing one EIS and rejected that option, concluding that "one document would be so broad and cumbersome that preparation of separate environmental documents is necessary to address the varied state and public concerns." A.R. § I.A.2 at 1. Nothing in the record suggests that BLM made this decision with the intent of obscuring the cumulative impacts of CBM development. To the contrary, the agencies recognized the need to analyze cumulative impacts in the Powder River Basin. For that reason, they collaborated throughout the process. They shared information, and, when inconsistencies between the two DEISs were noted, they coordinated their efforts to prepare joint cumulative impact assessments of surface water and air quality.
BLM could have prepared a single EIS for "cumulative actions" in the Powder River Basin. For practical reasons, it chose not to. That decision was not arbitrary and capricious.
NPRC also contends that the two EISs fell within the definition of "similar" actions and therefore should have been completed as a single analysis. Similar actions are those "which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating this environmental consequences together, such as common timing or geography." 40 C.F.R. § 1508.25(a) (3).
The two EISs may very well be similar actions, to the extent they have the common geographic background of the Powder River Basin. An agency, however, has even more discretion to decide whether to complete a single document when "similar" actions are concerned than when "cumulative" actions are involved. Earth Island, 351 F.3d at 1306. The regulations simply provide that an agency "may wish" to analyze similar actions in the same impact statement. 40 C.F.R. § 1508.25(a) (3). The agency "should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement." Id. Earth Island is instructive. In that case, a large wildfire burned two adjacent national forests in two different states. When the supervisors of the two forests decided to implement separate restoration projects and timber sales for the two forests, the plaintiffs sued, arguing that a single EIS covering both forests should have been prepared. The Ninth Circuit did not agree. The appellate court held that where there were prior administrative boundaries, different patterns of ownership, disparate timetables and separate supervisory personnel, the agency may reasonably conclude that two separate documents are the best way to assess adequately the combined impacts of the similar actions.
The same circumstances exist in this case. First, the political boundaries between the states of Wyoming and Montana, as well as the administrative boundaries of the BLM State Offices predated the decision to undertake EISs in both states. Second, the Powder River Basin in each state has different patterns of ownership. In Wyoming, the land is owned by the federal government, the State of Wyoming, and private individuals. In Montana, the land belongs to the federal government, the Crow and Northern Cheyenne Tribes, the State of Montana, and private parties. Finally, as noted in the previous discussion, the environmental reviews were initiated at different times and conducted by different supervisory personnel. As in Earth Island, it was not arbitrary and capricious for BLM to determine that a single EIS was not the best to adequately assess the combined effects of the actions.
5. Hard Look
Plaintiffs contend that the FEIS failed to take a hard look at the impacts of CBM development on groundwater, surface water quality, air quality, aquatic life, wildlife, methane migration, noise, and traffic. The Tribe also contends that the FEIS failed to take a hard look at the socioeconomic and cultural effects of development on the Northern Cheyenne Reservation.
Having already determined that the FEIS failed to consider a phased development alternative, the Court need not examine plaintiffs' hard look arguments. Nevertheless, as an advisory opinion only, the Court observes that, as a whole, the FEIS adequately considered the impacts of CBM development in the Powder River Basin. See National Parks Conservation Ass'n v. United States Dept. of Transportation, 222 F.3d 677, 682 (9th Cir. 2000) (An EIS must be reviewed as a whole.). Indeed, the analysis may not be as detailed as plaintiffs would like. However, where, as here, the FEIS is a large-scale, programmatic planning device, it need only provide "`sufficient detail to foster informed decision making, . . . site specific impacts need not be fully evaluated until a critical decision has been made to act on site development.'" Friends of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir. 2003) (quoting Northern Alaska Envtl. Ctr v. Lujan, 961 F.3d 886, 890-91 (9th Cir. 1992)). Thus, the detailed analysis that plaintiffs desire may be deferred until BLM has been presented with a proposal for a site-specific plan of development. Id.
That said, for the guidance of BLM in its further analysis on remand, the Court notes the following areas of concern. The first involves private water well mitigation agreements. While the FEIS relies on these agreements to ameliorate the impacts of methane migration and the depletion of groundwater aquifers, it never clearly describes what the agreements entail nor does it evaluate their effectiveness. Without some additional discussion about how these private agreements will alleviate the impacts of CBM development on methane migration and groundwater drawdown, it is difficult to conclude that the FEIS fairly evaluated the consequences of CBM development in these two areas. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-52 (1989) (Without a reasonably complete discussion of possible mitigation measures, neither the agency nor the public can properly evaluate the severity of the adverse effects of the proposed action.).
The other area of concern involves the Tongue River Railroad. The DEIS included the railroad as a reasonably foreseeable future project. The FEIS, however, omitted the railroad. In briefing and at oral argument, BLM justified the omission by arguing that the railroad is a speculative project that may never occur. Since that time, the Surface Transportation Board has published its intent to undergo another environmental analysis of the railroad and, in recent environmental assessments (EAs) for CBM projects in the Powder River Basin, BLM has included the railroad in its discussion of reasonably foreseeable future projects. Under these circumstances, and without deciding whether the omission of the railroad from the FEIS was error, the Court suggests that, on remand, BLM include the railroad in its cumulative impacts analysis. See Klamath-Siskiyou, 387 F.3d at 994 (A cumulative impact analysis must include a useful assessment of past, present, and reasonably foreseeable future projects.).
The Court takes judicial notice of notice of availability of the draft supplemental EIS for the Tongue River Railroad construction project published in the Federal Register on October 22, 2004. The Court also takes judicial notice of the EA for Fidelity's Tongue River-Dry Creek Plan of Development approved on December 16, 2004, and the EA for Fidelity's Tongue River-Coal Creek Plan of Development approved on January 19, 2005, despite the motions of BLM and Fidelity to strike the excerpted pages from these two EAs filed by NPRC. In the context in which these EAs are used by the Court, which is not to make a determination as to the merits of plaintiffs' claims, there is nothing inappropriate in taking judicial notice of the fact that the EAs do indeed include the Tongue River Railroad in their cumulative impact analyses.
6. Supplemental DEIS
NPRC argues that BLM violated the public comment and participation requirements of NEPA by failing to circulate a supplemental DEIS containing new air and surface water quality analyses that were included in the FEIS, but not the DEIS. Because the Court is remanding for other reasons, it need not discuss this issue.
7. Federal Lands Policy Management Act
The Tribe's challenges to the RMP under FLPMA are not ripe. Norton v. Southern Utah Wilderness Alliance, ___ U.S. ___, 124 S.Ct. 2373 (2004); Kern, 284 F.3d at 1070; Wilderness Soc'y v. Thomas, 188 F.3d 1130, 1134 (9th Cir. 1999); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998). "Generic challenges to the sufficiency of [an RMP] are no longer justiciable[.]" Thomas, 188 F.3d at 1134. Unless a site-specific action is the focus of the complaint, a plaintiff can no longer use FLPMA to challenge an agency's adoption of a programmatic plan. Id.; Kern, 284 F.3d at 1070. The Tribe's claim that BLM violated FLPMA must accordingly be dismissed without prejudice.
NPRC has already withdrawn its arguments on this issue and has moved to dismiss its FLPMA claims from its complaint.
8. The National Historic Preservation Act
NHPA requires federal agencies with jurisdiction over a proposed federal or federally assisted "undertaking" to "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register [of Historic Places]." 16 U.S.C. § 470f. "Properties of traditional religious and cultural importance to an Indian tribe . . . may be determined to be eligible for inclusion in the National Register." 16 U.S.C. § 470a(d) (6) (A). Accordingly, prior to approving the expenditure of federal funds on the undertaking or issuing any license, federal agencies must consult with Indian Tribes that attach religious or cultural significance to historic properties. 16 U.S.C. 470a(6) (B). After consulting with and gathering information from an Indian tribe, the agency must make a reasonable and good faith effort to identify historic properties, determine the eligibility of the identified properties for listing in the National Register, assess any effects that an undertaking may have on an historic property, and, if the agency determines that the effects are adverse, avoid or mitigate and such effects. 36 C.F.R. §§ 800.4(b)(1), 800.4(c), and 800.5.
The Tribe claims that BLM failed in its NHPA obligations by failing to consult with it prior to issuing oil and gas leases pursuant to the 1994 Amendments and approving the 2003 RMP Amendments.
As to the issuance of the oil and gas leases, the Tribe fails to identify any single lease or leasing decision to support its claim. Instead, the Tribe appears to attack the entire leasing program undertaken by the BLM after approving the 1994 Amendments. In this sense, the Tribe's claims are akin to the challenges made to BLM's "land withdrawal review program" in Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990). In that case, the Supreme Court rejected the plaintiffs' claims for the reason that they failed to identify any particular "agency action" that caused them harm. Without final agency action, there is no right to judicial review under the APA. Id. So too, here, where the Tribe asserts a general attack against an entire program instead of challenging any specific leasing decision, this Court lacks the authority under the APA to review the Tribe's claim.
The Tribe cannot challenge the 1994 Amendment itself because such an attack would be barred by the statute of limitations. NPRC v. United States BLM, 107 Fed.Appx. 166 (9th Cir. 2004).
As to the 2003 RMP Amendments, it appears that BLM did indeed consult with the Tribe to the extent required under NHPA. BLM's decision to conduct further NHPA consultation at the site-specific level was not in error. Where, as here, large land areas are involved, the agency may use a phased process to conduct NHPA identification and evaluation efforts. 36 C.F.R. § 800.4(b)(2). Furthermore, where the identification effort is part of a NEPA process, final identification and evaluation may be deferred until a site-specific project is proposed. Id.
9. BLM's Trust Responsibility to the Tribe
The Tribe alleges that by violating NEPA, FLPMA, and NHPA, BLM also violated its fiduciary obligations to the Tribe. As this contention offers nothing more than a rehash of previous arguments, the Court need not consider it.
10. Injunctive Relief
An injunction may issue where plaintiffs prove irreparable injury and inadequacy of legal remedies. Amoco Prod. Co. v. Village of Gambel, 480 U.S. 531, 542 (1987). Even though environmental injury can rarely be remedied by money damages and is often longlasting, the court must still "balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id.
In this case, the NEPA violations found by the Court do not automatically lead to the conclusion that all development activities must cease pending further administrative review. From the record presently before it, the Court cannot determine to what extent, if at all, development should be suspending during the completion of a new environmental impact statement that includes a phased development alternative. Under these circumstances, the Court deems it prudent to hold an evidentiary hearing to determine the nature and extent of injunctive relief, if any, to be granted.
MOTIONS TO STRIKE
BLM and the intervenors have filed several motions to strike affidavits and extra-record materials filed by plaintiffs. Because the Court did not review any of these materials in reaching its decision, the motions shall be denied as moot.
ORDER
In accordance with the foregoing, IT IS ORDERED:
1. The Tribe's motion for summary judgment (docket no. 60 in Cause No. CV 03-69-BLG-RWA and docket no. 76 in Cause No. CV 03-78-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
2. NPRC's motion for summary judgment (docket no. 64 in Cause No. CV 03-69-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
3. BLM's motion for summary judgment against NPRC (docket no. 77 in Cause No. CV 03-69-BLG-RWA and docket no. 92 in Cause No. CV 03-78-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
4. BLM's motion for summary judgment against the Tribe (docket no. 80 in Cause No. CV 03-69-BLG-RWA and docket no. 93 in Cause No. CV 03-78-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
5. Defendant Intervenors' motion for summary judgment against NPRC (docket no. 73 in Cause No. CV 03-69-BLG-RWA and docket no. 88 in Cause No. CV 03-78-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
6. Defendant Intervenors' motion for summary judgment against the Tribe (docket no. 96 in Cause No. CV 03-78-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
7. Defendant Intervenor Fidelity's motion for summary judgment against NPRC (docket no. 83 in Cause No. CV 03-69-BLG-RWA) is granted in part and denied in part in accordance with the discussion above.
8. NPRC's motion to dismiss (docket no. 128-1 in Cause No. CV 03-69-BLG-RWA) is granted. Count Five of NPRC's complaint in Cause No. CV 03-69-BLG-RWA is hereby dismissed without prejudice.
9. The Fifth Cause of Action in the Tribe's complaint in Cause No. CV 03-78-BLG-RWA alleging claims under FLPMA is likewise dismissed without prejudice.
10. BLM's motion to strike NPRC's extra-record materials (docket no. 97-1 in Cause No. CV 03-69-BLG-RWA) is denied as moot.
11. Intervenor Defendant Fidelity's motion to strike (docket no. 110 in Cause No. CV 03-69-BLG-RWA and docket no. 111 in Cause No. CV 03-78-BLG-RWA) is denied as moot.
12. BLM's motion to strike NPRC's supplemental statement of facts (docket no. 112 in Cause No. CV 03-69-BLG-RWA and docket no. 113 in Cause No. CV 03-78-BLG-RWA) is denied as moot.
13. BLM's motion to strike exhibits filed in support of NPRC's combined response/reply brief (docket no. 114 in Cause No. CV 03-69-BLG-RWA and docket no. 115 in Cause No. CV 03-78-BLG-RWA) is denied as moot.
14. BLM's motion to strike excerpted pages from the Dry Creek and Coal Creek EAs (docket no. 134 in Cause No. CV 03-69-BLG-RWA and docket no. 125 in Cause No. CV 03-78-BLG-RWA) is denied.
15. Fidelity's motion to strike (docket no. 135 in Cause No. CV 03-69-BLG-RWA) is denied.
15. An evidentiary hearing on the appropriate scope of injunctive relief in this matter shall be held on March 29, 2005, from 9:30 a.m. to 12:00 p.m. Prior to the hearing, the parties shall decide among themselves how to divide the allotted time.
16. On or before March 23, 2005, the parties shall file briefs, limited to 10 pages, on the appropriate scope of injunctive relief.
The Clerk of Court shall not enter judgment until further order of the Court.
The Clerk of Court shall notify counsel of record of the making of this order.