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Theodore Roosevelt Conservation Partnership v. Salazar

July 23, 2010

THEODORE ROOSEVELT CONSERVATION PARTNERSHIP, APPELLANT
v.
KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF INTERIOR, ET AL., APPELLEES



Appeals from the United States District Court for the District of Columbia (No. 1:07-cv-01486).

The opinion of the court was delivered by: Sentelle, Chief Judge

Argued April 16, 2010

Before: SENTELLE, Chief Judge, ROGERS and GARLAND, Circuit Judges.

In March 2007, the Bureau of Land Management (BLM or Bureau), an agency within the Department of the Interior, released a Record of Decision that established the Atlantic Rim Natural Gas Field Development Project (Atlantic Rim Project). The project was designed to manage the resources of more than 270,000 acres of publicly and privately owned land in south-central Wyoming. Shortly after issuing the Record of Decision, the Bureau began authorizing specific applications for permission to drill wells that accorded with the project. Theodore Roosevelt Conservation Partnership, Natural Resources Defense Council, and other environmental organizations filed for declaratory and injunctive relief in the district court, arguing the Bureau's Record of Decision, its accompanying environmental impact statement, and subsequent drilling permits violated the National Environmental Policy Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act. The district court granted summary judgment for the Bureau. The environmental organizations appeal from the judgment, alleging errors in both the administrative proceedings and the district court's evidentiary rulings. We affirm the district court on all issues.

I. Background

A. Legal Framework

1. National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., requires that federal agencies consider fully the environmental effects of their proposed actions. See Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 374 (D.C. Cir. 1999) (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194 (D.C. Cir. 1991)). It is an "essentially procedural" statute, meant to ensure "a fully informed and wellconsidered decision, not necessarily" the best decision. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978). To ensure a well-considered decision, NEPA requires that when an agency proposes a "major Federal action[] significantly affecting the quality of the human environment," the agency must prepare and circulate for public review and comment an environmental impact statement (EIS) that examines the environmental impact of the proposed action and compares the action to other alternatives. 42 U.S.C. § 4332(2)(C).

An EIS must be detailed, and it must be prepared in consultation with other federal agencies with special expertise relevant to the proposed action's environmental impact. Id. It must also assess the impact the proposed project will have in conjunction with other projects in the same and surrounding areas - "cumulative impact analysis" - and must include past, present, and reasonably foreseeable future actions of any agency or person. See 40 C.F.R. § 1508.25 (requiring that an EIS address cumulative impact); 40 C.F.R. § 1508.7 (defining cumulative impact); see also TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006) (describing what a meaningful cumulative impact analysis must identify). Finally, an EIS must explain in detail "any adverse environmental effects which cannot be avoided should the proposal be implemented." 42 U.S.C. § 4332(2)(C)(ii). Implicit in this statutory requirement "is an understanding that the EIS will discuss the extent to which adverse effects can be avoided." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52 (1989). NEPA regulations, therefore, require an agency to discuss possible mitigation measures in the EIS and Record of Decision. 40 C.F.R. §§ 1508.25(b)(3), 1502.14(f), 1502.16(h), 1505.2(c). The discussion must include "sufficient detail to ensure that environmental consequences have been fairly evaluated." Methow Valley, 490 U.S. at 352. However, NEPA "does not require agencies to discuss any particular mitigation plans that they might put in place," nor does it "require agencies - or third parties - to effect any." Citizens Against Burlington, 938 F.2d at 206.

Not every decision requires an EIS, however. If it is unclear whether an action will "significantly affect[] the quality of the human environment," 42 U.S.C. § 4332(2)(C), agencies may prepare an environmental assessment (EA). See 40 C.F.R. § 1501.4(a)-(b). An EA is a "concise public document . . . that serves to . . . [b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact [(FONSI)]." 40 C.F.R. § 1508.9(a)(1). The Department of the Interior has decided that its agencies, including the Bureau of Land Management, must prepare an EA for each proposed federal action, unless it is subject to a categorical exclusion, covered by an earlier environmental document, or the relevant bureau has already decided to prepare an EIS. 43 C.F.R. § 46.300(a).

2. Federal Land Policy and Management Act

Bureau of Land Management actions are guided by the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seq. Under FLPMA, the Bureau must "manage the public lands under principles of multiple use and sustained yield." 43 U.S.C. § 1732(a). Multiple use management requires balancing various competing uses of land - "including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values" - to optimally manage the land. 43 U.S.C. § 1702(c). The sustained yield principle "requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004) (citing 43 U.S.C. § 1702(h)).

The Bureau uses a multi-step planning and decisionmaking process to fulfill this mandate under FLPMA. The Bureau begins by creating a land use plan for a geographic region. This plan is called a resource management plan (RMP). A resource management plan "describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps." S. Utah Wilderness Alliance, 542 U.S. at 59. It does not, however, include a decision whether to undertake or approve any specific action. 43 C.F.R. § 1601.0-5(n). Specific projects are reviewed and approved separately, but must conform to the relevant RMP. 43 C.F.R. § 1610.5-3(a).

B. Factual Background

The Bureau's field office in Rawlins, Wyoming oversees the management of public lands within a 12.5 million acre area in south-central Wyoming that straddles the Continental Divide. During the decisionmaking at issue in this case, the area was governed by a land use plan called the Great Divide Resource Management Plan.1 Released in 1990 as part of the Bureau's FLPMA planning and decisionmaking process, the Great Divide RMP set forth long-term goals and objectives for the use and management of resources in the approximately four million acres of public land and additional one million acres of federal mineral estate that constitute the BLM-administered land within the Great Divide Resource Area. BUREAU OF LAND MANAGEMENT, RAWLINS DISTRICT OFFICE, GREAT DIVIDE RESOURCE AREA RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN 3 (November 1990) ("Great Divide RMP"). Under the RMP, the entire Great Divide Resource Area was open to oil and gas leasing, subject to restrictions around certain areas such as historic trails, sage grouse breeding grounds, and winter range for big game. Id. at 30, 32.

Within the Great Divide Resource Area sits the Atlantic Rim Project Area, which encompasses over 270,000 acres of publicly and privately owned land in Carbon County, Wyoming. Theodore Roosevelt Conservation P'ship v. Salazar, 605 F. Supp. 2d 263, 270 (D.D.C. 2009) ("TRCP"). The area contains valuable oil and natural gas deposits, provides habitat to many species of wildlife, supplies grazing land for local ranchers' herds, and supports various human endeavors such as big game hunting and wildlife observation. Already the project area hosts a number of oil and gas wells, which account for more than five percent of Wyoming's total natural gas production. Id. 1 The Great Divide RMP has been revised and is now called the Rawlins RMP. See BUREAU OF LAND MANAGEMENT, RAWLINS FIELD OFFICE, RECORD OF DECISION AND APPROVED RAWLINS RESOURCE MANAGEMENT PLAN (December 2008).

In 2001, the Bureau began the review and approval process for the Atlantic Rim Natural Gas Field Development Project (Atlantic Rim Project). See BUREAU OF LAND MANAGEMENT, FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE ATLANTIC RIM NATURAL GAS FIELD DEVELOPMENT PROJECT, CARBON COUNTY,WYOMING, at 1-1 (November 2006) ("FEIS"); Notice of Intent, 66 Fed. Reg. 33,975 (June 26, 2001). Because the project would have a substantial environmental impact, the Bureau released a draft EIS in December 2005 as required under NEPA. BUREAU OF LAND MANAGEMENT, DRAFT ENVIRONMENTAL IMPACT STATEMENT FOR THE ATLANTIC RIM NATURAL GAS FIELD DEVELOPMENT PROJECT, CARBON COUNTY, WYOMING (December 2005) ("DEIS"). The Bureau finalized the EIS in November 2006. FEIS (introductory letter).

In March 2007, the Bureau released its Record of Decision explaining, based on its analysis in the EIS, the action it decided to undertake. BUREAU OF LAND MANAGEMENT, RECORD OF DECISION, ENVIRONMENTAL IMPACT STATEMENT FOR THE ATLANTIC RIM NATURAL GAS FIELD DEVELOPMENT PROJECT, CARBON COUNTY,WYOMING (March 2007) ("ROD"); see also Notice of Availability, 72 Fed. Reg. 28,518 (May 21, 2007).

The Atlantic Rim Project's Record of Decision anticipates the Bureau approving approximately 2000 new natural gas wells in the project area over the span of 30 to 50 years. ROD at 1-3. This drilling is expected to cause surface disturbance to approximately 13,600 acres during the life of the project. That disruption will impair certain human activities, decrease soil quality, encourage erosion, diminish grazing land, and release various gases that contribute to ground-level ozone pollution. The project will also affect the population of the greater sage grouse, a species listed as a "Sensitive Species" by the Bureau. FEIS at 3-94. According to the Bureau's Manual on Special Status Species, such as sensitive species, the Bureau shall work "to improve the condition of special status species and their habitats to a point where their special status recognition is no longer warranted." BUREAU OF LAND MANAGEMENT, BLM MANUAL 6840 - SPECIAL STATUS SPECIES MANAGEMENT, at .01 (2001). The manual further states that any actions or projects "authorized by BLM shall further the conservation of . . . special status species." Id. at .12. Currently, the Atlantic Rim Project Area is abundantly covered with sage brush - habitat well suited for the greater sage grouse's nesting and breeding.

However, because the Atlantic Rim Project will disturb so much surface area, the greater sage grouse may be expected to suffer a long-term decline in population, precluding the improvement of the sage grouse's Sensitive Species status. See FEIS at 4-69, 4-83.

To mitigate the environmental damage the project will cause, the Record of Decision and final EIS outline conditions of approval for any proposal to drill. Overall surface disturbance in the project area cannot exceed 7600 acres at any given time, and total surface disturbance over the life of the project is capped at 13,600 acres. ROD at B-4. The decision also outlines conditions of approval designed to protect plant species, wildlife, and human activities. For example, drilling may not occur with a 0.25 mile radius of sage grouse breeding grounds, and drilling and other human activity is forbidden in certain areas at certain times of the year. Id. at B-16. The Bureau also included in the Record of Decision an adaptive management plan, which identifies various goals for continued monitoring and mitigation of the project's adverse impacts on wildlife and other resources during the life of the project.

Though the Atlantic Rim Project outlined the basic conditions of approval for drilling applications in the area, the Record of Decision left many specific resource management decisions for a case-by-case determination in each drilling application submitted over the life of the project. While public involvement in these applications is less substantial than in the preparation of an EIS, the Bureau stated in the Atlantic Rim Record of Decision that it would post public notice of each application to drill. Also, as required by regulation, the Bureau would conduct an environmental assessment (EA) before approving any specific application. See 43 C.F.R. § 46.300(a).

Shortly after releasing the Record of Decision in March 2007, the Bureau approved some applications for permission to drill. When an application is approved, by itself or in concert with other applications, the Bureau's approval is known as a plan of development, or POD. These plans of development specify where and how a well may be drilled, where supporting infrastructure such as roads may be built, and the precise mitigation measures that must be followed. On June 28, 2007, the Bureau approved two PODs in the Catalina unit of the project area for a total of 39 new wells. The approvals were accompanied by EAs with findings of no significant impact. On August 16, 2007, the Bureau approved two PODs in the Sun Dog unit for a total of 51 new wells. Again, the approvals were accompanied by EAs with findings of no significant impact.

C. Procedural Background

In June 2007, Theodore Roosevelt Conservation Partnership (TRCP) and various other environmental groups filed appeals to the Interior Board of Land Appeals within the Department of the Interior, pursuant to 43 C.F.R. § 4.410(a) ("Any party to a case who is adversely affected by a decision of an officer of the Bureau of Land Management . . . shall have a right to appeal to the Board [of Land Appeals] . . . ."). See also 43 C.F.R. § 4.1(b)(3). Their appeals challenged the validity of the Atlantic Rim Project Record of Decision and final EIS. TRCP also petitioned the Board to stay the effect of the Record of Decision during the pendency of the appeals. The Board denied the petition. Theodore Roosevelt Conservation P'ship, IBLA 2007- 208 (Sept. 5, 2007) (order). TRCP later dismissed its appeal before the Board.

During the pendency of TRCP's stay petition before the Board, TRCP filed in the district court a complaint requesting injunctive relief against the Department of the Interior and the Bureau. Shortly thereafter, Natural Resources Defense Council and other environmental groups (collectively, NRDC) filed a similar complaint. Three energy companies that planned to drill in the Atlantic Rim Project Area - Anadarko Petroleum Co., Warren Resources, Inc., and Double Eagle Petroleum Co. - successfully moved to intervene as defendants in both cases, as did the state of Wyoming. In 2007, the district court denied a motion by NRDC for preliminary injunctive relief. Natural Res. Def. Council v. Kempthorne, 525 F. Supp. 2d 115, 117 (D.D.C. 2007).

The court declined to consolidate TRCP and NRDC's cases, but issued a single decision granting summary judgment in both cases in favor of the Department of the Interior, the Bureau, and the intervenors. TRCP, 605 F. Supp. 2d at 269. The groups separately appealed the district court's grant of summary judgment, citing, inter alia, the court's decision to exclude certain evidence that was not part of the administrative record. This court consolidated the appeals. Later, we granted the motion of Double Eagle Petroleum to withdraw as a party to the appeal.

II. Analysis

As a threshold matter, we address the issue of standing. Though neither appellant asserted the required elements for standing in their joint brief in this court, both TRCP and NRDC did supply to the district court declarations that were sufficient to establish standing. ...


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