The opinion of the court was delivered by: JOHN BATES, District Judge
Plaintiffs challenge three related actions by the National Park
Service ("NPS") that implement the provisions of
36 C.F.R. Part 9, Subpart B ("9B Regulations") governing private oil and gas
drilling operations within units of the National Park System.
Plaintiffs contend that defendants have acted in violation of the
Administrative Procedure Act ("APA"), 5 U.S.C. § 553, the
National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et
seq., and the National Park Service Organic Act, 16 U.S.C. § 1,
by taking actions that allegedly mandate and implement a new
approach limiting NPS's authority to regulate "directional" oil
and gas drilling that is, the practice of drilling at a slant
adjacent to and outside of Park boundaries to extract privately
owned oil and gas beneath the Park unit surface. The challenged
actions consist of a guidance document issued in November 2003
discussing the criteria for obtaining an exemption from the 9B
Regulations, and two site-specific NPS actions granting
exemptions and finding no significant impact on the environment
Defendants move to dismiss for lack of subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) on the grounds
that plaintiffs lack standing and there is no final agency action before the Court.*fn1 For the reasons explained below, the
motion to dismiss is granted in part and denied in part.
I. Statutory and Regulatory Background
The Organic Act is the general authorizing statute for the
National Park Service. It provides that:
There is created in the Department of the Interior a
service to be called the National Park Service. . . .
The service thus established shall promote and
regulate the use of the . . . national parks . . . by
such means and measures as conform to the fundamental
purpose of the said parks . . . which purpose is to
conserve the scenery and the natural and historic
objects and the wild life therein and to provide for
the enjoyment of the same in such manner and by such
means as will leave them unimpaired for the enjoyment
of future generations.
16 U.S.C. § 1. The Secretary of the Interior shall issue "such
rules and regulations as he may deem necessary or proper for the
use and management of the parks . . . under the jurisdiction of
the National Park Service."*fn2
Id. § 3. Because the
Organic Act is silent as to the specifics of park management, the
Secretary has broad discretion on how to implement the statute.
Davis v. Latschar, 202 F.3d 359
, 365 (D.C. Cir. 2000). In
furtherance of its responsibilities under the Organic Act, NPS
also periodically issues a "Management Policies" document
"designed to provide NPS management and staff with . . . updated information
on NPS policy and required and/or recommended actions." See
2001 Management Policies at 6 (Defs.' Ex. 6).
The NPS promulgated the 9B Regulations in 1978 to address the
exercise of rights to oil and gas owned by private entities where
access is on, across, or through federally owned or controlled
land or waters. See 36 C.F.R. § 9.30(a). Such rights arise most
frequently where the land within a Park unit is owned in fee by a
private party, including the right to oil and gas, or, most
relevant here, "[w]hen in a transfer of the surface estate to the
United States, the grantor reserved the rights to the oil and
gas." Id. The regulations generally prohibit the granting of
access through federal lands or waters unless the operator has an
approved "plan of operations," which "serves as the operator's
access permit" and sets forth information regarding, inter
alia, the various "environments to be affected by operations"
and "steps to be taken . . . to mitigate any adverse
environmental effects." Id. §§ 9.32(a), 9.36(a)(16). Operators
subject to the 9B Regulations also must take "all technologically
feasible precautions" to prevent a well from blowing open or
becoming wild and to prevent accidents and fires. Id. §§ 9.44,
9.46. Any operator outside the boundaries of a Park unit must
comply with these requirements if he is using directional
drilling techniques which result in the drill hole crossing into
the unit and passing under any federal land or water. Id. §
9.32(e). However, an exemption is available where "the Regional
Director is able to determine from available data, that such
operations pose no significant threat of damage to park
resources, both surface and subsurface, resulting from surface
subsidence, fracture of geological formations with resultant
fresh water acquifer contamination, or natural gas escape, or the
like." Id. NEPA requires a federal agency to prepare an environmental
impact statement ("EIS") for all "proposals for . . . major
federal actions significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(2)(C). The EIS must include, among
other things, "a detailed statement describing the reasonably
foreseeable environmental impact both of the proposed federal
action and of any feasible alternative(s) to the proposed federal
action." Wyoming Outdoor Council v. U.S. Forest Service,
165 F.3d 43, 49 (D.C. Cir. 1999) (internal quotations omitted). An
EIS is not required if the agency makes a determination based on
an "environmental assessment" that the proposed action would not
have a significant impact on the environment.
40 C.F.R. §§ 1501.4, 1501.8, and 1508.13. The Supreme Court has explained that
"it is now wellsettled that NEPA itself does not mandate
particular results, but simply describes the necessary process."
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). Thus, "NEPA merely prohibits uninformed rather than
unwise agency action." Id. at 351.
The following facts are taken from plaintiffs' amended
complaint and the documents quoted therein, which plaintiffs
have, as a practical matter, incorporated by reference. Private
entities hold title to subsurface minerals at more than a dozen
Park units. In February 1992, the Park Service issued a document
entitled "NPS Procedures Governing Nonfederal Oil and Gas Rights"
implementing the 9B Regulations ("1992 9B Procedures"). Defs.'
Ex. 3. Plaintiffs characterize this document as containing a
section entitled "Potential Threats to Park Resources and Values
from Directional Drilling Operations Outside a NPS Unit," which
mandates consideration of certain types of threats when reviewing
an application for a § 9.32(e) exemption. Am. Compl. ¶ 31. Such
potential threats include those caused by "downhole" operations
that is, the actual subsurface drilling occurring within Park
boundaries and by the drilling activity outside of the Park
unit, including water and soil contamination from the surface
well pad; soil erosion and surface runoff from access roads and
the well pad; nuisance or safety hazards from gases; fire hazards
from equipment at the well pad; and air pollution from extraction
equipment, transport vehicles, and gas leaks at the well pad.
Id. The scope of this mandated assessment is consistent with
the NPS Management Policies issued through notice and comment
rulemaking in 2001, which provide that NPS may need to carry out
"[s]trategies and actions beyond Park boundaries" in order to
protect park resources. Id. ¶ 32 (quoting 2001 Management
Policies at §§ 1.5, 3.1).
Mr. Ross Davis of Davis Brothers Oil Producers, Inc., contacted
NPS Director Fran Mainella and other NPS officials on October 31,
2001, regarding his company's application for directional
drilling at Big Thicket National Preserve, asserting that NPS
lacked jurisdiction to regulate the surface location of the
proposed well because it was outside of Big Thicket's boundaries.
¶ Id. ¶ 33. On December 20, 2001, a Park Service official
responded to Davis's letter, stating that NPS would "streamline
the process" for "all future drilling applications under §
9.32(e). . . ." Id. ¶ 34.
On May 21, 2003, NPS issued a document without notice and
comment entitled "Implementation of the Directional Drilling
Provision of NPS Nonfederal Oil and Gas Regulations at 36 CFR 9B"
(hereinafter "May 2003 Directive"). The document stated that:
[NPS] jurisdiction under these regulations does not
extend to any activities occurring outside park
boundaries, even if such activities are associated
with a nonfederal oil and gas operation occurring
inside a park. . . . Section 9.32(e) . . . is limited
in scope to those aspects of the directional drilling
operation occurring within park boundaries. As
promulgated, it does not provide a means for the NPS
to assert regulatory authority under the 9B regulations over surface and subsurface
operations occurring outside park boundaries.
Id. at 1 (Defs.' Ex. 2). The Directive highlighted the use of
the term "operations" in § 9.32(e) and noted the limitation in
the definition of "operations" to "all functions, work and
activities within a unit." Id. at 2 (emphasis in original).
It thus concluded that "[t]he potential impacts considered [in
making an exemption determination] relate only to effects on park
resources from downhole activities occurring within the
boundary of the park, not threats to park resources associated
with the operation outside park boundaries." Id. at 1, 2
(quoted in Am. Compl. ¶ 35).
NPS issued the "Final Guidance on Implementing the Directional
Drilling Provision of the Service's Nonfederal Oil and Gas
Regulations at 36 CFR 9B" ("2003 Guidance") on November 13, 2003.
Defs.' Ex. 4A-4B. The 2003 Guidance reiterates the § 9.32(e)
exemption process as described in the May 2003 Directive, and
"describes [NPS] compliance responsibilities in evaluating a
request for an exemption" with regard to NEPA and other
environmental statutes. Am. Compl. ¶ 36; 2003 Guidance at 6-10.
The 2003 Guidance was issued without public notice or opportunity
for public comment, and was not the subject of an environmental
review under NEPA. Am. Compl. ¶¶ 38, 39.
Since that time, NPS has approved several requests for
exemption pursuant to § 9.32(e). Id. ¶ 42. In August 2004, NPS
issued an environmental assessment ("EA") for a proposal by
Comstock Oil and Gas, Inc. ("Comstock") to directionally drill
and produce a well below the Big Sandy Creek Unit of Big Thicket,
from a surface location 300 feet from the Unit, utilizing a
wellpad extending within 100 feet from the Unit boundary. Id. &
Pls.' Ex. 2. Consistent with the 2003 Guidance, the EA states
that "potential impacts considered in the § 9.32(e) exemption
process relate only to effects on park resources from downhole
activities [and] not threats to park resources associated with the operation outside park boundaries."
Am. Compl. ¶ 43 (quoting EA at 6). In the public comment process,
plaintiffs commented that the exemption analysis improperly
excluded consideration of threats from surface operations outside
of Unit boundaries, and submitted that the EA must set forth
alternatives beyond the no-action alternative proposed, as well
as a more comprehensive evaluation of the impacts of the proposed
operation. Id. ¶ 44. Without considering the impact of the
nearby surface operations, NPS issued a "finding of no
significant impact" ("FONSI") under NEPA, which also concluded
that Comstock qualified for the § 9.32(e) exemption relying on
language from the 2003 Guidance. Id. ¶ 45.
Another Comstock directional drilling proposal at the Big Sandy
Creek Unit was the subject of a separate EA in September 2004.
Id. ¶ 47 & Pls.' Ex. 1. This well would also have a surface
location 300 feet from the Unit, utilizing a wellpad extending
within 100 feet from the Unit boundary. Am. Compl. ¶ 47. NPS
applied substantially the same approach as with the first
Comstock action in its § 9.32(e) exemption analysis, excluding
consideration of the threats to park resources from surface
operations outside of the Unit, and issued a FONSI determination
that also granted this second exemption on November 4, 2004.
Id. ¶¶ 48-49.
Plaintiffs' amended complaint raises three claims for relief.
First, they assert that NPS acted in violation of the APA by
issuing the 2003 Guidance, and by applying the Guidance in the
Comstock determinations, without providing public notice and an
opportunity for public comment and, furthermore, that such
actions were arbitrary and capricious. Plaintiffs next contend
that NPS acted contrary to the Organic Act and NPS Management
Policies in violation of the APA because the Guidance abandons a
long-standing regulatory process requiring a demonstration of no
impairment of park wildlife and resources. They point to the
Comstock determinations as specific actions that failed to consider such
impacts from surface activities. Plaintiff's last claim for
relief alleges that NPS acted contrary to NEPA in violation of
the APA by issuing the 2003 Guidance without conducting a NEPA
environmental review and by issuing the Comstock determinations
without considering whether surface activities pose a threat to
Under Fed.R.Civ.P. 12(b)(1), the plaintiff bears the burden
of establishing that the court has jurisdiction. Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13
(D.D.C. 2001) (a court has an "affirmative obligation to ensure
that it is acting within the scope of its jurisdictional
authority"); see also Pitney Bowes, Inc. v. United States
Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998). Although a
court must accept as true all the factual allegations contained
in the complaint when reviewing a motion to dismiss pursuant to
Rule 12(b)(1), see Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164, (1993), the
court need not accept legal conclusions as true, Boyd v.
O'Neill, 273 F. Supp. 2d 92, 95 (D.D.C. 2003). Furthermore,
"`plaintiff[s'] factual allegations in the complaint . . . will
bear closer scrutiny in resolving a 12(b)(1) motion' than in
resolving a 12(b)(6) motion for failure to state a claim." Grand
Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A CHARLES ALAN WRIGHT
& ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE § 1350).
Additionally, a court may consider material other than the
allegations of the complaint in determining whether it has
jurisdiction to hear the case. See Coalition for Underground
Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003); EEOC
v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n. 3
(D.C. Cir. 1997); Hohri v. United States, 782 F.2d 227, 241
(D.C. Cir. 1986). Thus, "where necessary, the court may consider the complaint supplemented by
undisputed facts evidenced in the record." Coalition for