United States District Court, D. Columbia
November 10, 2005.
BIODIVERSITY CONSERVATION ALLIANCE, WYOMING WILDERNESS ASSOCIATION, and the WYOMING CHAPTER OF THE SIERRA CLUB, Plaintiffs,
UNITED STATES BUREAU OF LAND MANAGEMENT, a bureau within the Department of the Interior; GALE A. NORTON, in her official capacity as the Secretary of the Interior; and TED A. MURPHY, in his official capacity as the Assistant Field Manager, Lands & Minerals, Bureau of Land & Management, Defendants.
The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION (November 10, 2005 [#10, 13]
Plaintiffs, Biodiversity Conservation Alliance, Wyoming
Wilderness Association, and Wyoming Chapter of the Sierra Club
(collectively "Biodiversity" or "plaintiffs"), bring this action
against the United States Bureau of Land Management ("BLM"), Gale
A. Norton, the Secretary of the Interior, and Ted A. Murphy, the
Assistant Field Manager in BLM's Rock Springs, Wyoming Field
Office (collectively "BLM," "the agency," or "defendants"). Plaintiffs contend that the BLM's December 9, 2003 Decision
Record and Finding of No Significant Impact ("DR/FONSI")
authorizing the Hay Reservoir 3D Geophysical Project ("Hay
Reservoir Project" or "Project") 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). More precisely, plaintiffs argue that the BLM's
approval of the Project violates the Federal Land Policy and
Management Act of 1976 ("FLPMA"), 43 U.S.C. §§ 1701 et seq. and
the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321
et seq.*fn1 Compl. ¶ 1. Pending before the Court are cross
motions for summary judgment. Upon due consideration of the
parties' submissions, the relevant law, and the entire record
herein, the Court finds that the agency's action was neither
arbitrary, capricious, nor an abuse of discretion. Accordingly,
the defendants' motion is GRANTED and the plaintiffs' motion is
A. Factual Background
The proposed action at issue in this case, the Hay Reservoir 3D
Project, seeks to explore for oil and natural gas reserves in a
279 square mile tract of land in southwestern Wyoming.
Environmental Assessment ("EA") at 1, Administrative Record
("AR") 32. Pursuant to the Project, potential reserves will be
detected through a 3D seismic testing technique, which involves generating ground vibrations or seismic
waves and recording the waves at various source points and
receiver points located throughout the project area. Id. The
process will yield an underground map of potential oil and
natural gas reserves. Pls.' Mot. For Summ. Judg., Ex. 4 at 2.
Preparing the project area and conducting the seismic operation
is a multi-step process. Id. at 4. A crew of eight to twelve
surveyors must first stake and tag sixty-two "receiver lines" and
sixty-one "source lines" throughout the project are a using
global positioning system ("GPS") technology.*fn2 Id. at
4-5. Once a sufficient number of lines are staked and tagged with
receiver and source points, vibrator buggies ("vibe-buggies" or
"buggies") are used to generate seismic waves. Id. at 6.
Working in pairs, the buggies proceed along source lines
pursuant to a predetermined route. At each source point, the
buggies lower 4.5 by 7.5 foot vibrator pads from their
undercarriage. Id. The vibrator pads shake the ground and send
shock waves throughout subsurface soil and rock. EA at 6, AR 32.
Each vibe-buggy is 12 feet 6 inches high, 35 feet 6 inches long,
and 11 feet 6 inches wide; they weigh 62,000 pounds and are
equipped with 43 inch wide tires with a ground pressure of 16
pounds per square inch. Id.
The project area encompasses 178,560 acres of public and
private land in Sweetwater County, Wyoming.*fn3 EA at 1, AR 32. The project area is
also located within the Red Desert Watershed Management Area, an
area designated to protect visual, watershed, and wildlife
resources. Id. at 3. Plaintiffs argue that the seismic-testing
operation will adversely affect and irreparably injure native
species, habitats, ecosystems and resources contained within this
area. Compl. ¶ 32.
B. Procedural Background
In December 2001, Veritas DGC Land Incorporated ("Veritas")
filed a Notice of Intent ("NOI") with the BLM, an agency within
the Department of the Interior, to Conduct Oil and Gas
Geophysical Exploration Operations. AR 123. On April 30, 2002,
BLM issued a news release soliciting public comments on the
proposed Project for thirty days. AR 108. The news release
indicated that the project area would encompass about 210 square
miles. Id. Plaintiffs submitted two sets of comments during the
scoping period. Pls.' Statement of Material Facts ("SMF") ¶¶
9-19; Defs.' Statement of Material Facts and Issues at 11, ¶ 13.
On October 16, 2003, after the public comment period elapsed,
Veritas sent a letter to the BLM requesting that the boundaries
on the proposed project area be revised and expanded. AR 43. In
December 2003, the BLM issued a DR/FONSI approving the proposed
action pursuant to an EA also issued that month. DR/FONSI at 2,
AR 32. The BLM concluded that the Project would: (1) primarily
impact vegetation and visual resources in the project area; (2)
displace approximately three percent of the ground surface; and
(3) potentially damage or kill a percentage of brush within the
vibe-buggy tire paths. EA at 30, AR 32. The BLM also expanded the
project area by sixty-nine square miles from that referenced in
the initial news release. Id.
Thereafter, plaintiffs filed a Notice of Appeal and a Petition
for Stay with the Department of Interior's Interior Board of Land
Appeals ("IBLA"). Pls.' SMF ¶ 21. After the IBLA denied
plaintiffs' Petition for Stay, plaintiffs filed a Notice of
Dismissal of Appeal, and commenced the instant action. Id. ¶
25. In the instant action, plaintiffs seek an order declaring the
DR/FONSI and EA violative of the APA and NEPA, Compl. at 17, ¶¶
A-B, and an injunction preventing the BLM from implementing the
Project, id. ¶ E.
II. STANDARDS OF REVIEW
A. Summary Judgment
Summary judgment is appropriate when the pleadings and the
record demonstrate that "there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." FED. R. CIV. P. 56(C). The moving party
bears the initial burden of demonstrating the absence of a
genuine dispute of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). In this case, where cross motions for
summary judgment are at issue, the Court draws all reasonable
inferences regarding the assertions made in a light favorable to
the non-moving party. Flynn v. Dick Corp., 2005 WL 1904018, *2
(July 29, 2005 D.D.C.). The Court will "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." Consumer Fed'n of Am. v. U.S. Dep't of
Agric., 2005 WL 1773851, *2 (July 28, 2005 D.D.C.).
B. Administrative Review
BLM's actions are reviewed by this Court in accordance with the
judicial review provisions of the APA. When reviewing agency
action under the APA, the Court must determine whether the
challenged decision is "arbitrary, capricious, and abuse of
discretion, or otherwise not in accordance with law."
5 U.S.C. § 706(2)(A). To make this determination, the Court must "consider
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). At a minimum, the agency must have weighed the
relevant data and articulated an explanation that establishes a
"rational connection between the facts found and the choice
made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626 (1986). In
the final analysis, the BLM's actions are "entitled to a
presumption of regularity." Volpe, 401 U.S. at 415-16 (noting
the court cannot substitute its judgment for that of the agency).
NEPA is the "basic national charter for protection of the
environment." 40 C.F.R. § 1500.1(a). The statute does not mandate
particular results, but instead "imposes only procedural
requirements on federal agencies with a particular focus on
requiring agencies to undertake analyses of the environmental
impact of their proposal and actions." Dep't of Transp. v. Public Citizen, 541 U.S. 752, 756-57 (2004). The
Council on Environmental Quality ("CEQ") is charged with
administering NEPA and promulgating the regulations that become
binding on all federal agencies. See 42 U.S.C. §§ 4342,
4344(3); 40 C.F.R. §§ 1501.1-1518.4.
NEPA requires federal agencies to prepare an environmental
impact statement ("EIS") for "major federal actions
significantly affecting the quality of the human environment."
42 U.S.C. § 4332(c) (emphasis added). An environmental assessment
("EA") is made to determine whether an EIS is required.
40 C.F.R. § 1501.4, § 1508.9. The EA is a "concise public document" that
"[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an [EIS]." Id. § 1508.9(a). If
the agency determines that the proposed environmental impact will
not be "significant," the agency must issue a "finding of no
significant impact" ("FONSI"), id. § 1501.4(e), which "briefly
present[s] the reasons why an action . . . will not have a
significant effect on the human environment," id. § 1508.13.
Although the agency has "primary responsibility for projecting
whether the impact of [a] proposed action will be `significant'
within the meaning of [NEPA]," Public Citizen v. Nat'l Highway
Traffic Safety Admin., 848 F.2d 256, 266 (D.C. Cir. 1988), the
Court owes no deference to the BLM's interpretation of NEPA or
the CEQ regulations because NEPA is addressed to all federal
agencies, Rails-to-Trails v. Surface Transp. Bd.,
267 F.3d 1144, 1150 (D.C. Cir. 2001). Courts in our Circuit review an
agency's finding of no significant impact to determine whether: First, the agency [has] accurately identified the
relevant environmental concern. Second, once the
agency has identified the problem it must have taken
a hard look at the problem in preparing the EA.
Third, if a finding of no significant impact is made,
the agency must be able to make a convincing case for
Town of Cave Creek, Arizona v. F.A.A., 325 F.3d 320, 327 (D.C.
Cir. 2003). In the final analysis, this Court will not overturn
the decision unless it was arbitrary, capricious, or an abuse of
discretion. City of Grapevine, Texas v. Dep't of Transp.,
17 F.3d 1502-02 (D.C. Cir. 1994).
Plaintiffs argue that the BLM has violated NEPA in several
respects.*fn4 Their arguments can be summarized as follows:
(1) BLM failed to properly analyze the cumulative effects of the
Project in the EA, Pls.' Mot. For Summ. Judg. at 11-17; (2) BLM
did not consider an appropriate range of alternatives, id. at
27-32; and (3) BLM failed to adequately involve the public in the
decision-making process, id. at 34-39. For the following
reasons, each argument fails to meet the necessary standard to
overturn the BLM's decision.
A. The EA Cumulative Impacts Analysis is Sufficient
An EA must "include brief discussions of the need for the
proposal, of alternatives . . ., of the environmental impacts
of the proposed action and alternatives, and a listing of
agencies and persons consulted." 40 C.F.R. § 1508.9(b) (emphasis
added). "Impacts" may be direct, indirect, or, most relevant in
this case, cumulative. "Cumulative impacts" are impacts on the environment resulting from the "incremental impact
of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency . . . or
person undertakes such other actions. Cumulative impacts can
result from individually minor but collectively significant
actions taking place over a period of time." 40 C.F.R. § 1508.7.
Plaintiffs argue that the BLM did not sufficiently analyze the
cumulative impact of past, present, and future oil and gas
exploration in the project area. Pls.' Mot. For Summ. Judg. at
11. They assert that BLM has disregarded these impacts and
analyzed the Hay Reservoir Project in a "vacuum." Id. at 11-12.
The EA is not rendered unlawful simply because the BLM could
have considered more impacts. So. Utah Wilderness Alliance v.
Norton, 326 F. Supp. 2d 102, 117 (D.D.C. 2004) ("[P]laintiffs'
contention that "`they would have done more' does not render the
cumulative impacts analysis violative of NEPA."). Indeed, to
satisfy their obligations under NEPA, the BLM must only provide a
"realistic evaluation of the total impacts." Grand Canyon
Trust, 290 F.3d at 342 (emphasis added). The BLM did so here.
Additionally, the BLM devoted a section in the EA to evaluating
potential cumulative impacts in which it concluded that "the
proposed 3D vibroseis project together with on-going activities
would not adversely effect elements of the human environment." EA
at 30-31, AR 32 (emphasis added). Even if the Court assumes for
the sake of discussion that this section is insufficient, as
plaintiffs allege, Pls.' Mot. For Summ. Judg. at 12, the BLM
overcame any deficiencies in its analysis by also considering the Project's
cumulative impacts in other sections throughout the EA, e.g.,
EA at 1, AR 32 (noting the Project "overlies a known
hydrocarbon-bearing geological structure with numerous producing
wells located within the project area); id. at 3, AR 32 (noting
that "well drilling in portions of the [project area] is
on-going"); id. at 17, AR 32 (noting that "[o]il and gas
exploration is an on-going activity within the project area.
Records indicate that 71 producing gas wells . . . lie within the
project boundary, along with associated access roads, pipelines,
and other related facilities"); id. at 18, AR 32 (Map depicting
producing gas wells located in the project area). Accordingly,
the concludes that the BLM's cumulative impacts analysis comports
B. The BLM Considered an Appropriate Range of Alternatives
When preparing an EA, federal agencies must include a "brief
discussion" of alternatives to the proposed action.
40 C.F.R. § 1508.9(b); see also 42 U.S.C. § 4332(E) (noting that an agency
must "study, develop, and describe appropriate alternatives to
recommended course of action"). Although the agency is
responsible for determining the range of alternatives to be
considered, North Slope Borough v. Andros, 642 F.2d 589, 601
(D.C. Cir. 1980), its decision in the final analysis must be
reasonable, Natural Resources Defense Council, Inc. v. Hodel,
865 F.2d 288, 294-95 (D.C. Cir. 1988); So. Utah Wilderness
Alliance v. Norton, 237 F. Supp. 2d 48, 51 (D.D.C. 2002)
(stating that courts review an agency's consideration of
alternatives under the "rule of reason").
In this case, the BLM's consideration of alternatives was
entirely reasonable. By the plaintiffs' own admission, there are only a limited number of
feasible ways to acquire subsurface geologic data for oil and
natural gas development, Pls.' Mot. For Summ. Judg. at 30-31, and
the BLM expressly considered and rejected three alternatives that
this Court believes is representative of the spectrum of
available methods, see EA at 13, AR 32 (rejecting "man-portable
drilling" as not technically, physically or economically
feasible); EA at 13-14 (rejecting "heliportable drilling" as not
logistically or economically feasible); EA at 14 (rejecting
"poulter shot" as inefficient and not in harmony with the
proposed action's purpose and need).
Plaintiffs argue the BLM has violated NEPA nonetheless because
it did not consider and reject the shot-hole method. Pls.' Mot.
For Summ. Judg. at 29. I disagree. A careful review of the record
demonstrates that the BLM did in fact consider, and reject, the
shot-hole method before authorizing the proposed action.*fn5
Unlike vibroseis, the shot-hole method requires the drilling of
thousands of holes, to great depths, in an attempt to locate oil
and natural gas. AR 4 at 13. In December 2002, the BLM
acknowledged receiving plaintiffs' comment urging the BLM to
consider the shot-hole method. AR 79 (letter from BLM to Mr. Erik
Molvar of the Biodiversity Conservation Alliance). Subsequently,
the BLM concluded in the EA that drilling alternatives requiring
the excavation of such "dry holes" would disturb vegetation cover
more than seismic exploration. EA at 30, AR 32. Indeed, the BLM concluded that "[s]eismic exploration is the least surface
disturbing means" to achieve the proposed action's objectives.
Id. at 30-31 (emphasis added). Thus, the rejection of drilling
alternatives in the EA constitutes a sufficient justification for
excluding the shot-hole method. Accordingly, given the objectives
of the proposed action, the sensitive environmental concerns in
the project area, and comments submitted during the public
comment period, the BLM's consideration of alternatives was
C. The BLM Adequately Involved the Public
All three statutory and regulatory schemes implicated in this
case (e.g., FLPMA, NEPA, and the CEQ regulations) require the BLM
to involve the public in its decision-making process. E.g.,
43 U.S.C. § 1739(e) (requiring the BLM to give "the public adequate
notice and an opportunity to comment upon" the "preparation and
execution of plans and programs for, and the management of,
public lands"); 40 C.F.R. § 1506.6 ("Agencies shall . . . [m]ake
diligent efforts to involve the public in preparing and
implementing their NEPA procedures.").
As noted previously, the CEQ regulations contemplate two types
of environmental documents: an EA and an EIS. See
40 C.F.R. § 1508.9 (defining EAs); id. § 1508.11 (defining EISs). Each document serves a slightly different
purpose and, thus, has different requirements. In this regard,
the EA is the more concise document, compare 40 C.F.R. § 1508.9
(an EA "[m]eans a concise public document"), with id. § 1508.11
(an EIS "means a detailed written statement"), primarily designed
to provide sufficient information to establish that the agency
took a "hard look" at the environmental consequences before
concluding they are insignificant, see Town of Cave Creek,
Arizona, 325 F.3d at 327.
Plaintiffs argue the BLM should have given the public an
opportunity to comment on a draft EA, and should have notified
the public before expanding the project area's boundary by
sixty-nine square miles. Pls.' Mot. For Summ. Judg. at 37. I
A plain reading of the CEQ regulations reveals that an agency
is not expressly required to circulate a draft EA for public
comment before adopting its final decision, except in limited
circumstances that do not apply here. See
40 C.F.R. § 1501.4(e)(2). Instead, in preparing an EA, the regulations only
require that an "agency shall involve . . . the public, to the
extent practicable,. . . ."*fn7 Id. § 1501.4(b) (emphasis
added). Determining whether the public was adequately involved is
a fact-intensive inquiry made on a case-by-case basis. For the
following reasons, the BLM not only adequately involved the
public in this case, its failure to solicit supplemental comments
before expanding the project area is of no legal consequence.
BLM advised the public of Veritas's proposal, allowed a
thirty-day public comment period, and did not issue the DR/FONSI
until after considering the issues raised during that period.
See DR/FONSI at 3, AR 32. Although the regulations do require
an agency to supplement a draft or final EIS if it makes
"substantial changes" in its proposed action, see
40 C.F.R. § 1502.9(c)(1), plaintiffs have not cited any binding authority to
support their argument that the regulations require an agency to
solicit supplemental public comments when there are changes to
the proposed action before the EA has been issued. Moreover,
even in contexts where the regulations require supplementation,
our Circuit Court has explained that supplementation is only
necessary when "new information provides a seriously different
picture of the environmental landscape." Nat'l Comm. for the New
River v. F.E.R.C., 373 F.3d 1323, 1330 (D.C. Cir. 2004)
(internal quotations omitted) (emphasis in original). Here, the
BLM expanded the project area's boundary by sixty-nine square
miles based upon Veritas's request. AR 43. The BLM noted the
revised project area in the DR/FONSI and stated that the
"slight" increase had been analyzed. DR/FONSI at 13, AR 32.
Accordingly, the BLM's involvement of the public fully comports
with the FLPMA and NEPA. IV. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants' motion
for summary judgment and DENIES plaintiffs' motion for summary
judgment. An appropriate order will issue contemporaneously
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