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SOUTHERN UTAH WILDERNESS ALLIANCE v. NORTON

July 21, 2004.

SOUTHERN UTAH WILDERNESS ALLIANCE, et al., Plaintiffs,
v.
GAIL NORTON, Secretary, U.S. Department of Interior, et al. Defendants.



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs, the Southern Utah Wilderness Alliance, the Natural Resources Defense Council, the Wilderness Society, the Sierra Club, and the Utah Rock Art Association (collectively "SUWA"), challenge the Department of Interior's and the Bureau of Land Management's ("BLM") administrative decision, codified in an Environmental Assessment ("EA"), Finding of No Significant Impact ("FONSI"), and Decision Record ("DR"), to authorize the Stone Cabin 3D Seismic Survey Project ("Stone Cabin Project" or "Project"). Plaintiffs argue that BLM's approval of the Project, which permits seismic oil and natural gas exploration of approximately 57,500 acres of public and private lands in eastern Utah, violates the Administrative Procedure Act's ("APA") prohibition against agency decision-making that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A) (2003); see also Finding of No Significant Impact and Decision Record ("FONSI/DR"), Administrative Record 13 ("AR") (describing lands affected by the Project). Specifically, plaintiffs aver that the BLM's approval of the Project runs afoul of the National Historic Preservation Act ("NHPA"), the National Environmental Policy Act ("NEPA"), and the Federal Land Policy and Management Act ("FLPMA").

  Pending before the Court are cross motions for summary judgment. Plaintiffs seek a declaratory judgment that the BLM's approval of the Stone Cabin Seismic Project is unlawful, and ask the Court to vacate and remand the BLM's decision. Federal Defendant BLM cross-moved for summary judgment, and the motion was joined by Intervenor Bill Barrett Corporation ("BBC"),*fn1 and Intervenors the Utah Division of Oil, Gas and Mining, the Utah School and Institutional Trust Lands Administration, and Carbon County, Utah (collectively "Utah Intervenors"). Upon careful consideration of the motions, the responses and replies thereto, the oral arguments of counsel, the entire record herein, as well as the governing statutory and case law, and for the following reasons, it is by the Court hereby ORDERED that the plaintiffs' motion for summary judgment is DENIED; and it is FURTHER ORDERED that defendants'/intervenors' motion for summary judgment is GRANTED.

  A. Factual Background

  The Stone Cabin Project proposes to "image surface geologic formations and conditions to aid in determining the possible presence of oil and natural gas resources." FONSI/DR, AR 13. Detection of these resources is accomplished via "seismic reflection methods," which involve "the generation of ground vibrations or seismic waves, and the recording of seismic waves at source points and receiver points that would be located throughout the project area, respectively." Id. The data produced allows geophysicists to evaluate the "potential presence or absence of formations and structures which could contain natural gas or oil." Id. Two main methods are used to generate seismic waves: (1) the "drilling of holes (shot holes) . . . and the detonation of explosives (shots) placed in the shot holes," and (2) mechanical techniques referred to as vibroseis. FONSI/DR, AR 13-14. Where shot holes are used, "buggy drills" and "heliportable drills" will drill holes to a depth of approximately 50 feet; the detonation of explosives placed in the bottom of the holes will generate ground vibrations recordable by geophysicists. Where vibroseis is used, vibrator buggies, working in pairs and each weighing about 62,000 pounds, will vibrate the ground at designated source points for time periods of "a few seconds to several minutes;" again, the sound waves reflecting from underground rock formations will generate recordable data used to locate gas and oil resources. See Bill Barrett Corporation Stone Cabin 3D Seismic Survey Project Environmental Assessment ("EA"), AR 112, AR 130; FONSI/DR, AR 13. Within a single source point, the buggies may vibrate at up to ten stops, each four feet apart, and then proceed to the next source point. EA, AR 112.

  The Project engendered the instant controversy largely due to its location; the core of plaintiffs' claim is that the vibrations produced by the exploration methods could damage or destroy cultural resources, such as "rock art" and pit houses erected by ancient cultures, located within the project area. Compl. ¶ 2. The project area encompasses approximately 57,500 acres of land in northeastern Carbon County, Utah; while oil and gas development activity is not new to the area, and indeed "has been ongoing in much of the project area since the 1950's," the area is rich with significant cultural and archaeological resources. FONSI/DR, AR 13. The project area includes 5,300 acres of the Nine Mile Canyon Special Recreation and Cultural Management Area ("SRCMA"), an administratively designated area designed to protect and preserve prehistoric and historic resources; portions of the 78-mile Nine Mile Canyon National Backcountry Byway; and the proposed Nine Mile Canyon Archaeological District, which is eligible for listing on the National Register of Historic Places. See FONSI/DR, AR 16, AR 37. Over 1000 cultural, historic, and archaeological sites have been recorded in the SRCMA, seventy-five to eighty percent of which are "rock art that range from representations of individual figures to multiple components and panels composed of numerous figures." Id., AR 15. Prehistoric remains such as "cliff dwellings, masonry granaries, slab storage cists, semi-subterranean pit houses, [and] retaining walls" are also present in the area. Id., AR 15-16. Accordingly, the "principal management objective for the SRCMA is to protect and preserve [these] prehistoric and historic resources." Id., AR 16. The project area also includes parts of two BLM established wilderness study areas ("WSAs"), the Jack Canyon and Desolation Canyon WSAs.*fn2 Id., AR 16. Approximately eighty five percent of the Jack Canyon WSA is located within the project area. Id.

  B. Procedural Background

  On May 29, 2002, the Dawson Geophysical Company filed with the BLM a Notice of Intent to Conduct Oil and Gas Exploration Operations on behalf of Bill Barrett Corporation ("BBC"). In September of 2003, the BLM published the Stone Cabin 3D Seismic Survey Project, Environmental Assessment ("EA"). The BLM allowed 30 days of public comment on the EA, receiving over 24,000 public comments. Three alternatives were considered in the preparation of the EA, including a no-action alternative; the Agency's preferred alterative, Alternative B, was ultimately selected. BLM issued a FONSI and Decision Record on March 19, 2004, concluding on the basis of the EA that an Environmental Impact Statement ("EIS") was not required. The DR adopted the agency's preferred alternative, and authorized Dawson Geophysical Company to commence surface disturbing activities as soon as it secured permits and obtained a Notice to Proceed from BLM.

  On April 30, 2004, plaintiffs moved for a preliminary injunction to prevent the commencement of the seismic exploration. After full briefing by all parties and a hearing on the preliminary injunction motion, the parties reached an agreement. Plaintiffs then withdrew their motion for injunctive relief, and the parties proceeded to summary judgment. See May 25, 2004, Order.

  II. STANDARD OF REVIEW

  A. Summary Judgment

  This case is before the Court on the parties' cross motions for summary judgment. Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Likewise, in ruling on cross-motions for summary judgment, the court may grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975). This Circuit has repeatedly recognized that summary judgment is an appropriate procedure when a court reviews an agency's administrative record. See, e.g., Bloch v. Powell, 227 F. Supp.2d 25, 30-31 (D.D.C. 2002) (citing Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)).

  B. Administrative Review

  On a review of agency action pursuant to the Administrative Procedure Act ("APA"), the Court must determine whether the challenged decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In reviewing an agency's action, the court must engage in a "thorough, probing, in-depth review" to determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971). However, while the Court's inquiry must be "searching and careful," the standard of review is also a highly deferential one; the agency's actions are "entitled to a presumption of regularity," and the court cannot "substitute its judgment for that of the agency." Id. at 415-16.

  III. ANALYSIS

  Plaintiffs allege that the BLM's Finding of No Significant Impact ("FONSI") and Decision Record ("DR") authorizing the Stone Cabin Seismic Project violate the National Historic Preservation Act ("NHPA"), the National Environmental Policy Act ("NEPA") and the Federal Land Policy and Management Act ("FLPMA"). Each claim is discussed in turn.

  A. National Historic Preservation Act (NHPA) Claims

  Plaintiffs argue that the BLM failed to identify historic properties potentially present in the project area prior to approving the Project, failed to consider the Project's adverse effects on historic properties, and failed to respond to the discovery of additional historic properties after the NHPA process concluded. Pls.' Mot. for Summ. J. at 7. BLM counters that it satisfied its NHPA obligations "to identify cultural resources in the Project area and has undertaken significant protective measures as part of this Project to ensure that no cultural resources, including rock art on canyon walls and standing structures, will be adversely impacted by this Project." Defs.' Mot. for Summ. J. at 4.

  1. The National Historic Preservation Act

  Congress enacted the NHPA in 1966 recognizing that "historic properties significant to the Nation's heritage are being lost or substantially altered, often inadvertently, with increasing frequency" and that "the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans. . . ." 16 U.S.C. § 470(b)(3),(b)(4). Pursuant to the NHPA, federal agencies "having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license . . . take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." 16 U.S.C. § 470f. Accompanying regulations require that an agency engage in consultation with

 
the agency official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.
36 C.F.R. § 800.1(a). Participants in this process include the agency official, the Advisory Council on Historic Preservation ("Council"), the State Historic Preservation Officer ("SHPO"), representatives from Indian tribes, representatives of ...

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