The opinion of the court was delivered by: Urbina, District Judge.
GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT;
DENYING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
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had withdrawn the challenged leases altogether.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.
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).
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
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.
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
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 ...