The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiffs are a group of environmental organizations that challenge a decision of the Interior Board of Land Appeals (IBLA) upholding the Bureau of Land Management's (BLM) approval of a seismic and oil gas exploration project in Grand County, Utah. Plaintiffs contend that BLM failed to take a "hard look" at the environmental impact of the project and to adequately consider alternative plans, in violation of the National Environmental Policy Act (NEPA), and that IBLA's exclusion of certain evidence from the administrative record was arbitrary and capricious under the Administrative Procedure Act (APA).
For the reasons set forth below, plaintiffs' motion for summary judgment will be granted and defendants' and intervenor's motions for summary judgment will be denied.
On August 24, 2001, WesternGeco filed a Notice of Intent to conduct a two-dimensional ("2D") seismic exploration of an area in Grand County, Utah (northeast of Moab, Utah) on behalf of its client Eclipse Exploration, *fn1 to determine the extent of oil and gas reserves and the appropriateness of future exploratory drilling. The proposed project, called "Yellow Cat Swath," covers approximately 23,040 acres of private, state, and federal lands, on which seven source lines were laid out for the collection of seismic data. Trucks (defendants call them "buggies") were to traverse three of the source lines for a total of 18.3 miles. The trucks would vibrate the ground with steel pads at 144 points on each source line to conduct the necessary "vibroseis" data. Administrative Record (AR) 12, 166, 170.
On December 12, 2001, BLM issued a draft Environmental Assessment (EA) pursuant to NEPA, opening a 30-day comment period that was later extended to January 22, 2002. AR 1542. On January 31, 2001, after receiving comments from the Fish and Wildlife Service, Environmental Protection Agency, U.S. Geological Service, National Park Service, Utah Department of Natural Resources, and members of the public, BLM issued the final EA with the Decision Record and Finding of No Significant Impact (FONSI), concluding that there would be no significant impact on the environment and that no Environmental Impact Statement (EIS) was required under NEPA. BLM attached "special conditions" (otherwise known as mitigation conditions) to its finding, among them that operations would be halted when the soil was wet and that soil ruts in excess of four inches would be avoided. AR 159-163. With this approval by BLM, the project commenced on or around February 15, 2002. AR 14.
Plaintiffs immediately filed an appeal challenging the Decision Record consisting of the EA/FONSI to the Interior Board of Land Appeals (IBLA) and IBLA granted an interim stay. AR 14. Project activity was stopped on February 22, 2002, with one half of it having been completed. AR 14. On February 23, 2002, the Director of the Office of Hearings and Appeals vacated the interim stay but issued a permanent stay of the Decision Record, remanding the appeal to IBLA for a decision on the merits of the appeal. On August 22, 2002, IBLA affirmed the EA/FONSI by a 2-to-1 decision. AR 10. Plaintiffs filed this suit on September 23, 2002. The parties agreed not to resume project activity until the Court ruled on plaintiffs' motion for a preliminary injunction. That motion was granted on October 30, 2002, *fn2 and an expedited schedule was established for briefing and deciding the motions that are now before the Court.
Plaintiffs assert three grounds for finding that defendants' actions violated NEPA and the APA: (1) that BLM failed to adequately consider alternative plans, required by 42 U.S.C. § 4332(E) and 40 C.F.R. § 1508.9, such as limiting exploration to existing trails or using the shothole method instead of vibroseis; (2) that IBLA ignored evidence in the administrative record demonstrating that WesternGeco had violated the special conditions attached to the FONSI and had moreover, used tire chains that were not mentioned in the Environmental Assessment; and (3) that BLM failed to take a "hard look" at the project's environmental impact on biological soil crust, visual resources (scenic quality of the area), and endangered species, and did not sufficiently analyze cumulative effects.
NEPA requires agencies to prepare an Environmental Impact Statement (EIS) for every "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). An Environmental Assessment (EA) is made to determine whether an EIS is required. 40 C.F.R. § 1508.9. If any significant environmental impact might result from the proposed agency action, an EIS must be prepared before agency action is taken. Judicial review of agency's finding of no significant impact and decision not to complete an EIS is performed according to 5 U.S.C. § 706(2)(A) of the APA. The agency's finding and decision may be overturned "only if it was arbitrary, capricious or an abuse of discretion." Sierra Club v. U.S. Dep't of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985). The reviewing court is to consider: (1) whether the agency accurately identified the relevant environmental concerns; (2) once the agency identified the problem, whether it took a 'hard look' at it in preparing the EA; (3) if a finding of no significant impact was made, whether the agency made a convincing case for its finding; and (4) if the agency identified an impact of true significance, whether the agency found that changes or safeguards in the project sufficiently reduce the impact to a minimum, which would justify not preparing an EIS. Grand Canyon Trust v. FAA, 290 F.3d 339, 340-41 (D.C. Cir. 2002). NEPA's requirements are "essentially procedural." As long as the agency's decision is "fully informed" and "well-considered," it is entitled to judicial deference, and a court must not substitute its own policy judgment for that of the agency. North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980).
1. Alternative plans were not adequately considered
As part of its preparation of an EA, an agency is required to "study, develop, and describe appropriate alternatives to recommended courses of action," 42 U.S.C. § 4332(E), and to discuss alternatives that is has considered, 40 C.F.R. § 1508.9. Agency compliance vel non with the requirement to consider alternatives is evaluated under the "rule of reason," meaning that "the concept of alternatives must be bounded by some notion of feasibility," and that agencies are required to deal with circumstances "as they exist and are likely to exist," but are not required to consider alternatives that are "remote and speculative." Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 294-95 (D.C. Cir.1988)(internal citations omitted). However, in examining alternatives to the proposed action, an agency's consideration of environmental concerns must be more than a pro formal ritual. Considering environmental costs means seriously considering alternative actions to avoid them. Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm., 449 F.2d 1109, 1128 (D.C. Cir. 1971).
In preparing the EA in this case, BLM did discuss alternative plans (AR 169-70). What plaintiffs challenge is the sufficiency of BLM's analysis, and particularly BLM's unquestioning acceptance of the statements of WesternGeco and Eclipse Exploration, the project applicants, that limiting their operations to existing roads and trails would not meet the project objectives, AR 27 (IBLA's discussion of alternative plans focuses on George Handley's declaration that alternative plans would not meet the project goals); AR 1656 (letter from George Handley of Eclipse Exploration to Rich McClure of BLM); AR 382 (declaration of George Handley dated March 14, 2002); AR 387 (declaration of Stuart Wright of WesternGeco dated March 2002), in the face of public comments questioning the accuracy of those statements, AR 1838-40, 1863-66. It is undisputed that BLM neither conducted nor commissioned an independent analysis of alternatives. *fn3
An agency is obligated to take the needs and goals of the project applicant in mind when considering alternatives, Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1996), but that obligation does not limit the scope of the agency's analysis to what the applicant says it needs. Here, the question is whether the agency had the duty to conduct an independent analysis of alternatives to running source lines across undamaged soils when at least one member of the public asserted that the use of existing roads and trails would yield acceptable data. At oral argument, counsel for the government argued that the agency was justified in relying upon the admittedly self-serving statements of the project applicants because Stuart Wright was a scientist and the commenting member of the public did not have the necessary vibroseis qualifications. Tr. of December 13, 2002 at 8. This argument, though, is not clearly supported by the record (the public commenter asserted that he had twenty years of experience with seismic mapping and that he was well acquainted with seismic equipment, terminology, and ...