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Wyoming Outdoor Council v. Bosworth

September 30, 2003

WYOMING OUTDOOR COUNCIL ET AL., PLAINTIFFS,
v.
DALE BOSWORTH, CHIEF, U.S. FOREST SERVICE, ET AL., DEFENDANTS.



Document Nos. 11, 12, 21

MEMORANDUM OPINION

GRANTING THE PLAINTIFFS' MOTION FOR LEAVE TO FILE SUR-REPLY; DENYING THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this action, a coalition of environmental groups ("the plaintiffs") bring suit pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. They allege that the United States Forest Service ("Forest Service") and the Bureau of Land Management ("BLM") (collectively,"the defendants") failed to follow ESA consultation requirements, thereby violating the APA. Specifically, the plaintiffs allege that the defendants failed to formally consult with the Fish and Wildlife Service ("FWS") before issuing several oil and gas leases in Wyoming, and that the Forest Service failed to reinitiate formal consultation with the FWS after receiving new information about grizzly bears. The defendants argue that the plaintiffs' claims are not ripe and that in any event the defendants are under no duty to consult. Because the plaintiffs' failure-toinitiate claims are not ripe, and because the Forest Service's failure to reinitiate consultation was not arbitrary or capricious under the APA, the court denies the plaintiffs' motion for summary judgment and grants the defendants' motion for summary judgment.

II. BACKGROUND

The challenged actions involve the somewhat complicated interaction between three sets of federal statutes and regulations: those authorizing oil and gas leasing on public lands, those authorizing oil and gas leasing on national forests, and those providing for the protection of endangered species. The court therefore takes a moment to outline the relevant statutory and regulatory frameworks.

A. Statutory and Regulatory Frameworks

1. Oil and Gas Leasing on Public Lands and National Forests

The Mineral Leasing Act of 1920 ("the MLA"), 30 U.S.C. §§ 181 et seq., provides authority for oil and gas leasing on both public and national forest system lands. 30 U.S.C. §§ 181 et seq. The MLA assigns primary responsibility for regulating leasing on public lands to the Secretary of the Interior, acting through the BLM. Id. § 226(a), (g); 43 C.F.R. subpart 3100. As amended by the Federal Onshore Oil and Gas Leasing Reform Act ("FOOGLRA") in 1987, the MLA grants authority to regulate leasing on forest lands to the Secretary of Agriculture, acting through the Forest Service. 30 U.S.C. § 226(g)-(h); 36 C.F.R. part 228.

Under the FOOGLRA, the Forest Service and the BLM share responsibility for the issuance of leases on forest lands. 30 U.S.C. § 226(h). The leasing process consists of eight steps: (1) leasing analysis; (2) leasing decision; (3) verification; (4) BLM assessment; (5) sale by the BLM; (6) issuance of lease; (7) application for permit to drill; and (8) application for permit to drill to develop a field.*fn1 Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 8-12. First, the Forest Service conducts a National Environmental Policy Act ("NEPA") analysis to identify the lands that will be made administratively available for leasing by the BLM. 36 C.F.R. § 228.102(a)-(d); id. at 8-9; Pls.' Mot. for Summ. J. ("Pls.' Mot.") at 13. Second, the Forest Service identifies a specific parcel for leasing, performs specific environmental review on that parcel, and determines whether to authorize the BLM to lease that parcel. 36 C.F.R. § 228.102(e); Defs.' Mot. at 9. Third, the Forest Service verifies that the leasing was adequately addressed in a NEPA document and is consistent with management plans, ensures that conditions of surface occupancy have been included as stipulations*fn2 in the lease and determines that operations and development could be allowed somewhere on the lease (unless stipulations prohibit all surface occupancy). 36 C.F.R. § 228.102(e); Defs.' Mot. at 9; Pls.' Mot. at 14. Fourth, the BLM determines whether it should attach additional stipulations to the parcel. 43 C.F.R. § 3101.7-2(a)-(b); Defs.' Mot. at 10.

At the fifth step in the process, the lease parcel is ready for sale. The BLM conducts sales of the lease parcel and includes all stipulations in the sale notice. 43 C.F.R. § 3120.4-1; Defs.' Mot. at 10. Sixth, the BLM decides to issue the lease, incorporating all Forest Service stipulations. 43 C.F.R. § 3101.7-2(a); Defs.' Mot. at 10. Seventh, before the lessee may conduct drilling operations or other surface-disturbing activities, the lessee must submit an Application for a Permit to Drill ("APD") that includes a Surface Use Plan of Operation ("SUPO") describing the proposed well in detail. 30 U.S.C. 226(g); 43 C.F.R. § 3162.3-1(c); 36 C.F.R. § 228.106; Defs.' Mot. at 10-11. The Forest Service evaluates the SUPO for its environmental consequences and stipulation consistency and either approves it as submitted, approves it subject to conditions, or disapproves it. 36 C.F.R. §§ 228.107(a)-(b), 228.108; Defs.' Mot. at 11. Eighth and finally, the lessee must submit additional applications before conducting field-development activities. 36 C.F.R. §§ 228.106(d), 251.82(a); 43 C.F.R. §§ 3162.3-1, 3-2; Defs.' Mot. at 11.

2. Endangered Species Act

The ESA is comprehensive legislation for the preservation of endangered species. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Under the ESA, the Secretary of the Interior, acting through the FWS, lists those fish, wildlife or plant species he has determined to be endangered or threatened. 16 U.S.C. § 1533(a); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C. Cir. 2003).

Section 7 of the ESA directs each federal agency to ensure that its actions are"not likely to jeopardize the continued existence of any endangered species." 16 U.S.C. § 1536(a)(2). To carry out this duty, an agency considering whether to implement a proposed action works closely with the FWS. At the outset, the agency must ask the FWS whether a listed species is present in the area of the proposed action. 16 U.S.C. § 1536(c); Idaho v. Interstate Commerce Comm'n, 35 F.3d 585, 596 (D.C. Cir. 1994). If the FWS responds affirmatively, the agency must complete a biological assessment to identify the species the action is likely to affect. Id. If the agency's assessment indicates that the proposed action"may affect" listed species or critical habitat, the agency must initiate"formal consultation" with the FWS. 16 U.S.C. § 1536(a); 50 C.F.R. § 402.14; Rancho Viejo, 323 F.3d at 1064. During the period of formal consultation, the agency may not make any"irreversible or irretrievable commitment of resources." 16 U.S.C. § 1536(d).

At the end of formal consultation, the FWS issues a biological opinion that sets forth a determination indicating whether the proposed action is likely to jeopardize the continued existence of a listed species. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(h)(3); Rancho Viejo, 323 F.3d at 1064. If the FWS makes a"jeopardy" determination, the biological opinion must set forth"reasonable and prudent alternatives" aimed at avoiding such consequences. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3); Rancho Viejo, 323 F.3d at 1064. If the FWS finds no jeopardy, it nonetheless must provide the agency with a statement indicating any incidental take of the species resulting from the proposed action and setting forth reasonable and prudent measures to minimize that take. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). The FWS also may offer conservation recommendations. 50 C.F.R. § 402.14(j).

In certain situations, no formal consultation is necessary. The agency and the FWS may engage in informal consultation to assist the agency in determining whether formal consultation is required. 50 C.F.R. § 402.13. Should the agency determine from this informal consultation that the proposed action is not likely to adversely affect any listed species, and the FWS concurs, the agency need not initiate formal consultation. Id. § 402.14(b); Ala. Power Co. v. Fed. Energy Regulatory Comm'n, 979 F.2d 1561, 1564 (D.C. Cir. 1992). At that point,"the consultation process is terminated, and no further action is necessary." 50 C.F.R. § 402.13(a).

Finally, ESA regulations provide that the agency or the FWS must reinitiate formal consultation if (1) the incidental take exceeds the level set in the incidental-take statement, (2) new information reveals effects of the agency action that may affect listed species"in a manner or to an extent not previously considered," (3) the agency modifies its action in a manner adversely affecting the listed species that the FWS did not consider in its opinion, or (4) the action may affect a newly listed species. 50 C.F.R. § 402.16.

B. The Yellowstone Grizzly Bear Population and the Disputed Oil and Gas Leases

The FWS has listed the grizzly bear (Ursus arctos horribilis) of the lower 48 states as a threatened species under the ESA since 1975. Defs.' Statement of Undisputed Material Facts ("Defs.' Statement") ¶ 5; Pls.' Statement of Undisputed Material Facts ("Pls.' Statement") ¶ 2. In its initial listing of the grizzly, the FWS noted 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." Defs.' Statement ¶ 5; Compl. ¶ 16. Between 1800 and 1975, the grizzly's range dwindled to less than two percent of its former range, while its population shrank from an estimated 50,000 bears to fewer than 1,000. Id. In 1993, the FWS revised and reissued its grizzly bear recovery plan, a technical, scientific document used to plan the ...


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