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WYOMING OUTDOOR COUNCIL v. DOMBECK

March 27, 2001

WYOMING OUTDOOR COUNCIL ET AL., PLAINTIFFS.
V.
MICHAEL DOMBECK ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; DENYING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This case pits the rights of oil and gas developers against the need to protect the threatened grizzly bear. The plaintiffs, a coalition of environmental groups, bring this action pursuant to the "citizen suit" provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. They allege that the United States Forest Service and the Bureau of Land Management ("BLM") (collectively "the defendants") failed to follow proper agency procedures, as mandated by section 7 of the ESA, 16 U.S.C. § 1536, in issuing three oil and gas leases for drilling in the Shoshone National Forest, located southeast of Yellowstone National Park in Wyoming. This case now comes before the court on the parties' cross motions for summary judgment.

On August 15, 2000, both parties moved for summary judgment. The parties have fully briefed both motions. On September 18, 2000, the defendants filed a motion to stay proceedings, which the court denied. A crucial point in the procedural history occurred on October 6, 2000, when the defendants announced in their reply brief in support of summary judgment that the BLM had withdrawn the challenged leases altogether.

Accordingly, the defendants maintain that the court should dismiss the case for lack of ripeness. In sum, they argue that even before the BLM withdrew the leases, the case was not ripe because there was no final agency action, and the lack of ripeness became even clearer once the BLM withdrew the leases. The plaintiffs counter that the case was ripe before the withdrawal, meaning that the key inquiry should now be one for mootness. Under the mootness doctrine, if the defendant voluntarily ceases a challenged action, the case is not necessarily moot. Thus, the plaintiffs argue, the court still has subject-matter jurisdiction and can provide the plaintiffs with their requested relief.

For the reasons that follow, the court agrees with the defendants that the case was never ripe. Accordingly, the court will grant the defendants' motion for summary judgment and will deny the plaintiffs' motion for summary judgment.

II. BACKGROUND

The grizzly bear (Ursus arctos horribilis) has been protected by the ESA, 16 U.S.C. § 1531 et seq., since its listing as a "threatened" species on July 28, 1975. See Defs.' Mot. for Summ. J. at 4. In 1975, the FWS found that "[t]he range of the grizzly bear, which at one time was much of the western United States, is now confined to isolated regions in Montana, Idaho and Wyoming." See id. (quoting 40 Fed. Reg. 31,734). As the defendants note, the grizzly's range was reduced to less than two percent of its former range, while its population shrank between 1800 and 1975 from an estimated 50,000 bears to fewer than 1,000. See id. (citing Grizzly Bear Recovery Plan, 1993 ("1993 plan")). The species received a listing of "threatened" rather than "endangered" in large part because "the reduction in range occurred mostly in the 19th Century during the westward advance of civilization." See id. (citing 40 Fed. Reg. 31,734).

The FWS completed its first recovery plan for the grizzly bear in 1982 and revised the plan in 1993. See Defs.' Mot. for Summ. J. at 5. The 1993 plan continues to chart the grizzly bear population in the lower 48 states by distinct geographic subpopulations or recovery zones, including the Yellowstone ecosystem, which encompasses the Shoshone National Forest. See id. The 1993 plan estimated that the Yellowstone ecosystem had about 236 bears in 1993. See id. (citing 1993 plan at 11).

In September 1992, the Forest Service issued a "Biological Assessment for Actions Proposed in the Proposed Alternative Environmental Impact Statement for Oil and Gas Leasing on the Shoshone National Forest." See id. at 6, Administrative Review ("A.R.") Doc. 33. "The Biological Assessment evaluates the potential effects on grizzly bears of the preferred alternative for the oil and gas leasing program described in the Final Environmental Impact Statement ("FEIS")." Id. The Forest Service issued the FEIS in December 1992 pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.

Despite the development of conservation measures, the Biological Assessment concluded that:

due to the uncertain nature of possible development following the issuance of oil and gas leases, and the sensitivity of the grizzly bear to disturbance and loss of habitat . . . this project may affect the grizzly bear. Formal consultation should begin immediately to determine whether this project is likely to jeopardize the continued existence of the grizzly bear on the Shoshone.

See id. (citing A.R. Doc. 33 at 24). With this background, the court turns to the case at bar.

The lead plaintiff in this case is the Wyoming Outdoor Council. Founded by Wyoming residents in 1967, the Wyoming Outdoor Council is a conservation organization established to coordinate groups and take action for natural-resource conservation and environmental protection throughout Wyoming. See Compl. at 2. The other plaintiffs are the Jackson Hole Conservation Alliance, the Sierra Club, the Northwest Wyoming Resource Council, the American Wildlands, the Dubois Wildlife Association, the Greater Yellowstone Coalition, and the Native Forest Network. The plaintiffs frame their standing argument as follows:

Members of each of the plaintiff conservation groups use the Shoshone National Forest, including the areas made available for oil and gas leasing, for various recreational and business pursuits, including hiking, hunting, fishing, leading pack trips, and aesthetic enjoyment. Oil and gas leasing and development results in the construction of roads, increased vehicle traffic, the emission of both air and water pollutants, fragmentation of wildlife habitat, disturbance of pristine environments and conflicts with recreational users. The defendants' violations of ESA alleged herein cause direct injury to the recreational, aesthetic and business interests of members of the plaintiff organizations. These injuries are fairly traceable to defendants' conduct, and are addressable through this action.

Compl. at 4.

The U.S. Forest Service is an agency within the United States Department of Agriculture, which has responsibility for managing the national forests, including the Shoshone National Forest. The Forest Service has the legal responsibility to comply with the ESA in conducting oil and gas leasing activities in the Shoshone National Forest. See id. The BLM is an agency within the United States Department of the Interior, which has legal authority to issue leases for oil and gas activities on national forest lands. Pursuant to this legal authority, the BLM has offered for sale the three oil and gas leases on the Shoshone National Forest that are at issue in this case. See id. The plaintiffs maintain that this court has jurisdiction under the ESA, 16 U.S.C. § 1531-44, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 551-706. See Compl. at 5.

A. Statutory and Regulatory Framework

Under the Federal Onshore Oil and Gas Leasing Reform Act of 1987 ("FOOGLRA"), the BLM and the Forest Service have joint responsibility for the leasing of national forest lands for oil and gas exploration and development. See 30 U.S.C. § 226(g)-(h). The FOOGLRA gives the Forest Service the ultimate responsibility to determine which areas of the national forests are suitable for oil and gas leasing. See 30 U.S.C. § 226(h).

The Forest Service regulations governing issuance of oil and gas leases on national forest lands lay out a two-step process for authorizing the issuance of leases. See Compl. at 5. First, the Forest Service must determine which lands will be made "administratively available" for leasing by the BLM. See 36 C.F.R. § 228.102(c-d). The second step is "lease authorization," in which the Forest Service identifies a specific parcel for leasing, performs specific environmental review on that parcel, and determines whether to authorize the BLM to actually lease that parcel. See 36 C.F.R. § 228.102(e). Section 228.102(e) mandates that the Forest Service make three determinations before authorizing ...


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