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Powder River Basin Res. Council v. United States Bureau of Land Management

United States District Court, D. Columbia.

March 28, 2014

Powder River Basin Resource Council, et al., Plaintiffs,
United States Bureau of Land Management, et al., Defendants

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For UNITED STATES BUREAU OF LAND MANAGEMENT, KENNETH LEE SALAZAR, in his official capacity as Secretary of the Interior, MIKE POOL, in his official capacity as Acting Director of the Bureau of Land Management, DONALD SIMPSON, in his official capacity as Wyoming State Director of the Bureau of Land Management, DUANE SPENCER, in his official capacity as the Buffalo Field Office Manager of the Bureau of Land Management, Defendants: Romney Sharpe Philpott, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, Washington, DC.

For LANCE OIL & GAS COMPANY, INC., Intervenor Defendant: Hadassah M. Reimer, LEAD ATTORNEY, PRO HAC VICE, HOLLAND & HART LLP, Jackson, WY; John Frederic Shepherd, LEAD ATTORNEY, HOLLAND & HART LLP, Denver, CO.

For STATE OF WYOMING, Intervenor Defendant: Michael J. McGrady, LEAD ATTORNEY, WYOMING ATTORNEY GENERAL'S OFFICE, Cheyenne, WY; James Kaste, STATE OF WYOMING, Attorney General's Office, Cheyenne, WY.

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I. Introduction

Before the Court is a challenge by Powder River Basin Resource Council and two other conservation groups (" the Plaintiffs" ) to decisions by the United States Bureau of Land Management (" BLM" ) related to the Fortification Creek Planning Area (" FCPA" or " Planning Area" ) in the greater Powder River Basin in northeastern Wyoming.[1] The Plaintiffs claim that BLM, caving in to the demands of the coal bed natural gas (" CBNG" ) industry, abandoned efforts to protect an elk herd and other valuable resources, and approved an amendment to the applicable land use plan and a plan for developing a CBNG lease without adequately analyzing the potential environmental impacts of those actions. The defendants are BLM, Sally Jewell, the Secretary of the Department of the Interior, Donald Simpson, Wyoming State Director of BLM, and Duane Spencer, the Buffalo Field Office Manager of BLM (collectively, the " Federal Defendants" ). The State of Wyoming and Lance Oil & Gas Company, Inc. (" Lance Oil" ) have both intervened as defendants. Pending before the Court are cross-motions for summary judgment filed by all parties.

Specifically, the Plaintiffs challenge the adequacy of BLM's Environmental Assessment (" EA" ) and BLM's Finding of No Significant Impact (" FONSI" ) for the Fortification Creek Resource Management

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Plan Amendment (" RMPA" ). Plaintiffs also challenge BLM's approval of the Yates Petroleum Corporation Queen B Plan of Development (" Queen B POD" ), a 16-well drilling-stage project. The Plaintiffs seek declaratory and injunctive relief pursuant to the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq., for violations of the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq., and NEPA's implementing regulations promulgated by the Council on Environmental Quality (" CEQ" ), 40 C.F.R. § § 1500.1 et seq. In particular, the Plaintiffs request that the Court declare that BLM's actions violate NEPA, set aside those actions, void already approved plans of development (" PODs" ), including the Queen B POD, and suspend and enjoin all approved and future oil and gas development permitted by BLM in the FCPA pending full compliance with NEPA.

II. Background

A. Glossary

2007 Elk Report: An environmental report issued by BLM that analyzed the potential impacts of CBNG development on the Fortification Creek elk herd. AR 004630; 004634.

2008 Elk Monitoring Plan: This document was attached to the 2008 draft RMPA/EA. It set forth a draft monitoring plan that fixed thresholds for elk habitat loss and elk population reduction which, if exceeded, BLM would consider " biologically significant." AR 009099-009104.

Crucial Seasonal Range (or Crucial Range): Any particular seasonal range or habitat component which has been documented as the determining factor in a population's ability to maintain or reproduce itself at a certain level. The crucial ranges for elk are the crucial winter range and the

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parturition (or calving) range. AR 004633.

Direct Habitat Loss: This occurs when required life-sustaining conditions are lost, such as when vegetation is removed during the construction of a road. AR 018647.

EA: Environmental assessment.

Effective Habitat: Habitat that is available to the elk herd. AR 004652. The elk will abandon or avoid an area once a certain level of disturbance from human activity is reached. AR 018647. These avoided areas result in a de facto loss of habitat. Id. Effective habitat is that habitat actually available to wildlife, namely, the habitat that has not been destroyed ( direct habitat loss ) and that does not have so much disruption that the wildlife avoid it. Id. The amount of effective habitat loss usually exceeds the amount of direct habitat loss. AR 018648.

EIS: Environmental impact statement.

FONSI: Finding of No Significant Impact.

Fortification Creek Planning Area (" FCPA" or " Planning Area" ): A 100,655-acre area located within the Powder River Basin in Northeastern Wyoming. AR 018481. BLM makes decisions about mineral development within the boundaries of the FCPA.

Plan of Development (" POD" ): A plan for a group of wells and their supporting infrastructure (such as roads, pipelines, power lines, water discharge points, booster stations, and compressor stations) for a geographic area. AR 026932.

Resource Management Plan (" RMP" ): A resource management plan " describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 59, 124 S.Ct. 2373, 2377, 159 L.Ed.2d 137 (2004). Specific projects or actions must conform to the relevant resource management plan. 43 C.F.R. § 1610.5-3(a); see Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 504, 392 U.S.App.D.C. 316 (D.C. Cir. 2010).

Security Habitat: A place for wildlife to escape from disturbance. AR 018647. Security habitat is usually defined in terms of patches of a certain minimum size. Id. It is a subset of effective habitat.

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AR 004652.

Southern Range: That portion of the elk herd's yearlong range that extends south of the boundary of the Fortification Creek Planning Area. AR 018646.

Yearlong Range: Where a population of animals makes general use of suitable habitat sites within the range on a year round basis. AR 04633. The Fortification Creek elk's yearlong range includes the herd's smaller crucial range. AR 018483. The herd's yearlong range includes the FCPA and the southern range.

WGFD: The Wyoming Game and Fish Department, which manages the elk herd in the Fortification Creek Planning Area. AR 006785.

Wilderness Study Area (" WSA" ): A 12,832-acre area within the elk herd's crucial range in the Fortification Creek Planning Area which is to remain free of mineral development. AR 004629.

B. The Fortification Creek Planning Area and the Fortification Creek Elk Herd

The Planning Area, the 100,655-acre area in northeastern Wyoming within which BLM makes decisions related to mineral development, is not a discrete area of public land such as a park, but is rather an administrative area created to form boundaries for certain decision-making by BLM, primarily related to mineral development. Federal Defendants' Cross Motion for Summary Judgment (" Fed. Defs.' Mtn." ) (Dkt. No. 36) at 1. The Planning includes private, state, and federal lands.[2] AR 018474. The landscape contains prairie, sagebrush shrubland, and juniper forest. AR 006803. Significantly for this case, the Planning Area is home to an isolated, non-migratory herd of Rocky Mountain Elk, known as the Fortification Creek herd. AR 018479. The current herd was established in the early 1950s when the Wyoming Game and Fish Department (" WGFD" ) and BLM introduced elk from Yellowstone National Park after the area's original elk population had been killed off. AR 018561. In 1981, the WGFD set a population management objective of 150 elk. Id. As of 2011, there were an estimated 210 elk in the Fortification Creek herd. AR 020802. The herd is managed by the WGFD. AR 006785. BLM considers the elk in the Fortification Creek herd " a species of interest because of their history, isolation, and hunting importance." AR 018561.

Over the course of the year, the elk herd roams both within the Planning Area and beyond the boundaries of the Planning Area. The elk herd's yearlong range, which is the core use area for the herd, extends south of the limits of the Planning Area. AR 018646. The southern area of the elk herd's yearlong range that is outside of the Planning Area is called the herd's " southern range." AR 018672. Within the yearlong range, the elk herd has " crucial seasonal ranges." AR 018646. The crucial ranges are areas of habitat that are determinative of the elk population's ability to maintain itself at a certain level. AR 004633. The crucial range is comprised of the crucial winter range and the parturition (or calving) range. AR 018646. (The

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map at the end of this section diagrams the yearlong range, crucial ranges, and the boundaries of the Planning Area.) See AR 019209.

The Planning Area is within BLM's Buffalo Management Area and therefore is subject to BLM's Buffalo Resource Management Plan (" RMP" ), the first version of which was issued in 1985. AR 006781; Fed. Defs.' Mtn. at 3. Oil and gas leasing in the Powder River Basis has been ongoing since before 1985 and currently the Planning Area is nearly completely leased. AR 018481. CBNG has replaced conventional oil and gas development as the dominant form of mineral development throughout the Powder River Basin (" PRB" ). AR 018480. As of 2011, there were 480 wells in the Planning Area. AR 018586.

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C. The 2008 RMPA/EA

In August 2008, BLM issued its Draft Buffalo Resource Management Plan Amendment and Fortification Creek Management Area Environmental Assessment (" 2008 Draft RMPA/EA" ). AR 009660-61. The 2008 draft RMPA/EA proposed a prescriptive, phased development approach. See AR 008810. Under this draft plan, BLM would allow oil and gas development

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under prescriptive guidelines, meaning that the oil and gas development would have to meet specific requirements. AR 008810. In addition, development would only occur in one-third of the Planning Area at a time. AR 008810, 008993-99. Attached as an appendix to this draft RMPA/EA was an Elk Monitoring Plan (" 2008 Elk Monitoring Plan" ). AR 009099-009104.

Oil and gas lessees expressed concerns that the prescriptive approach proposed in the 2008 draft RMPA/EA would restrict access to their leases in the Planning Area while other members of the public raised concerns about the protection of the elk herd. AR 018475. These concerns prompted BLM to reconsider its alternatives and, in 2011, BLM issued a new draft RMPA/EA.

D. The 2011 RMPA/EA and the Proposed Action

This 2011 RMPA/EA is the RMPA/EA at issue in this case. It analyzed three alternatives, including the Proposed Action. AR 018492-96.

The first alternative that BLM evaluated was the " no action" alternative. NEPA requires agencies to evaluate a " no action" alternative, 40 C.F.R. § 1502.14(d), which " serves as a benchmark" for comparing the other alternatives. Theodore Roosevelt Conservation P'ship v. Salazar, 744 F.Supp.2d 151, 160 (D.D.C. 2010), aff'd, 661 F.3d 66, 398 U.S.App.D.C. 199 (D.C. Cir. 2011). Under this alternative, BLM would manage the Planning Area according to existing management direction. AR 018492. Development of the CBNG leases would proceed without any changes to the land planning approach and the pace of CBNG development would not be restricted. AR 018475, 018493. Alternative II represents a " prescription-based approach" under which BLM specifies the conditions for oil and gas development. AR 018495. The approach is " prescriptive" in the sense that BLM would set firm guidelines for development. For instance, under this approach, CBNG development would be prohibited on certain steep slopes and water management facilities and compressors would be located outside crucial ranges. AR 018495. Pursuant to Alternative II, the oil and gas development would be confined to one-third of the Planning Area at a time, leaving the rest of the area free of disturbance. AR 018496.

Finally, BLM analyzed Alternative III, which is the alternative BLM ultimately adopted as the Proposed Action. AR 018496. The Proposed Action is a performance-based approach for managing oil and gas development in the FCPA. Id. The Proposed Action defines performance standards and the plans of development submitted by oil and gas operators must comply with these standards in order to be approved. Id. As compared to Alternative II, the Proposed Action gives the operators more leeway as to how they can develop their drilling projects, so long as the impacts from the development do not exceed the performance standards. Although Alternative III incorporates phased development in the sense that oil and gas operators will confine their development to a small geographic area annually, it does not limit development to one-third of the Planning Area at a time. AR 018496. BLM will closely monitor the CBNG operators' compliance with the performance standards and may authorize more drilling if the performance standards are being met or less drilling ...

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