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Theodore Roosevelt Conservation Partnership v. Kenneth Lee Salazar

November 18, 2011

THEODORE ROOSEVELT CONSERVATION PARTNERSHIP,
APPELLANT
v.
KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL., APPELLEES



Appeal from the United States District Court for the District of Columbia (No. 1:08-cv-01047)

The opinion of the court was delivered by: Sentelle, Chief Judge:

Argued September 20, 2011

Before: SENTELLE, Chief Judge, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

The Pinedale Anticline Project Area (the PAPA) consists of a little over 198,000 acres of federal, state, and private land in western Wyoming. The Bureau of Land Management (BLM or the Bureau) manages roughly 80 percent of this land, which contains the third- largest natural gas field in the United States. In 2000, the Bureau issued a Record of Decision (2000 Record of Decision or 2000 ROD) meant to guide the management of the first substantial development of the PAPA's natural gas resources. In 2008, the Bureau adopted a new Record of Decision (2008 Record of Decision or 2008 ROD), which, among other things, authorized the development of more natural gas wells than the earlier Record of Decision had sanctioned and provided for management and mitigation of the development. Theodore Roosevelt Conservation Partnership (TRCP), an association including members who pursue recreational hunting in the PAPA, filed for declaratory and injunctive relief in the district court, arguing that the Bureau's 2008

Record of Decision violated the Federal Land Policy and Management Act; that the accompanying environmental impact statement (EIS) violated the National Environmental Policy Act; and that the 2000 Record of Decision violated both acts. The district court granted summary judgment for the Bureau. TRCP appeals from that judgment. We affirm the judgment of the district court.

I. Legal Framework

A. The National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et. seq., mandates that federal agencies "consider fully the environmental effects of their proposed actions." Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010). As is well established, NEPA is "essentially procedural." Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978). It does not mandate "particular substantive environmental results"; rather, it "focus[es] Government and public attention on the environmental effects of proposed agency action." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989). Put simply, NEPA ensures "'a fully informed and well-considered decision, not necessarily' the best decision." Theodore Roosevelt Conservation P'ship, 616 F.3d at 503 (quoting Vermont Yankee, 435 U.S. at 558). To this end, NEPA requires that an agency prepare an EIS for any "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

The EIS is a detailed analysis, prepared with expert assistance, of the projected environmental impact of a proposed major federal action. Theodore Roosevelt Conservation P'ship, 616 F.3d at 503 (citing 42 U.S.C. § 4332(2)(C)). The EIS must explain the action's environmental impact as well as "any adverse environmental effects which cannot be avoided should the proposal be implemented." 42 U.S.C. § 4332(2)(C)(i), (ii). This discussion must address the "relevant issues and opposing viewpoints" in sufficient detail to assure adequate evaluation of a proposed action's environmental effects. Nevada v. Dep't of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006).

At the "heart" of the EIS is the agency's evaluation of the potential environmental impacts of all "reasonable alternatives" for completing the action. City of Alexandria v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999) (quoting 40 C.F.R. § 1502.14). The EIS must "inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. The range of reasonable alternatives must include "technically and economically practical or feasible" alternatives. 43 C.F.R. § 46.420(b). This range is "delimit[ed]" by the agency's reasonably defined goals for the proposed action. City of Alexandria, 198 F.3d at 867 (quoting Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991)).

B. The Federal Land Policy and Management Act

The Bureau manages public lands pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et. seq. FLPMA mandates that the Bureau "manage the public lands under principles of multiple use and sustained yield." Id. § 1732(a). Multiple use management entails balancing competing uses of land, "including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values." 43 U.S.C. § 1702(c). Achieving a sustained yield "requires [the Bureau] to control depleting uses over time, so as to ensure a high level of valuable uses in the future." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004). In managing public lands according to these overarching principles, the Bureau must "take any action necessary to prevent unnecessary or undue degradation of the lands." 43 U.S.C. § 1732(b).

II. Background

A. The Pinedale Anticline Project Area

The PAPA encompasses just over 198,000 acres of federal, state, and private land in western Wyoming. It contains what is now considered the third-largest natural gas field in the United States (Pinedale Field). The PAPA also provides other natural resources, including recreational opportunities and wildlife habitat. In particular, the PAPA supports part of the "winter range" for mule deer and pronghorn, which serves as survival habitat during harsh winter conditions. The PAPA also provides year-round habitat for part of a significant population of the greater sagegrouse. This habitat includes mating-display grounds called leks as well as brood-rearing areas and wintering areas. Mule deer, pronghorn, and sage-grouse are game species of particular interest to this region's hunters.

The Bureau manages the roughly 80 percent of the federally owned land and resources in the PAPA. The government has leased most of its mineral resources, including most of the Pinedale Field, to oil and gas companies (the Operators). Energy development in the PAPA remained negligible until the 1990s, when new drilling technology allowed for commercially practicable recovery of the PAPA's natural gas.

B. The 2000 Record of Decision

Faced with increasing development interest, the Bureau released a Record of Decision in 2000 authorizing significant expansion of natural gas development in the PAPA. See

BUREAU OF LAND MANAGEMENT, RECORD OF DECISION FOR PINEDALE ANTICLINE OIL AND GAS EXPLORATION AND DEVELOPMENT PROJECT ENVIRONMENTAL IMPACT STATEMENT (July 2000) (2000 ROD). The 2000 Record of Decision required monitoring and mitigation measures intended to preserve the PAPA's other natural resources. These measures included, among other things, restrictions on development tied to the seasonal needs of affected species, one-quarter-mile buffers around all sage-grouse leks, and a formal process called Adaptive Environmental Management (AEM) intended to monitor development and respond to adverse environmental impacts as they arose.

Over the next several years, development increased at a faster-than-predicted rate. Several Operators requested, and the Bureau approved, a series of exceptions to seasonal restrictions on development as provided for in the 2000

Record of Decision. Wildlife populations declined during this period, due at least in part to the increased natural gas development and the concomitant increase in human presence. In 2005, the Operators proposed a new development plan that provided for additional wells, year-round drilling (i.e., lifting the seasonal restrictions on development introduced by the 2000 Record of Decision), and a concentrated development scheme.

C. The 2008 EIS

In response to the Operators' proposal, the Bureau prepared and issued a draft supplemental EIS in 2006 that analyzed three alternatives addressing the Operators' proposal. Under Alternative A, the "no action" alternative, the Bureau would reject the Operators' proposal and continue management under the 2000 Record of Decision. Alternative B would essentially implement the proposal, including year- round drilling, 4,399 additional wells (drilled from 600 well pads), concentrated development, and mitigation measures. Alternative C was similar to Alternative B, but would decrease the core drilling area and specify where year-round drilling could not occur rather than specify only where year- round drilling could occur.

After receiving public and governmental input, the Bureau issued a revised draft supplemental EIS that included the three alternatives from the draft supplemental EIS along with two additional alternatives. Alternative D, the Bureau's preferred alternative, built upon Alternative C and added further mitigation measures and voluntary suspension of mineral leases on the land bordering the core area (the PAPA flanks). Alternative E also started with Alternative C but reduced the pace of development, retained the ...


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