37 F. Supp. 3d 59
D.D.C.2014Background
- This case is a NEPA/APA challenge by Powder River Basin Resource Council and two conservation groups to BLM decisions re Fortification Creek Planning Area in northeastern Wyoming.
- Plaintiffs allege BLM abandoned elk herd protections and failed to adequately analyze environmental impacts in approving the RMPA and the Queen B POD.
- Defendants are the United States Department of the Interior, BLM (and officials), the State of Wyoming, and Lance Oil & Gas, with Powder River Basin Plaintiffs seeking declaratory and injunctive relief.
- BLM analyzed three alternatives (No Action, Prescription-based, and Performance-based Proposed Action) and issued a FONSI rather than an EIS for the RMPA; the Queen B POD underwent separate NEPA review.
- The court denied the Plaintiffs’ summary judgment motion and granted the Federal Defendants’, Wyoming’s, and Lance Oil’s cross-motions; the decision was delivered March 28, 2014.
- The decision centers on whether BLM’s hard look at elk impacts, water resources, and related mitigation under NEPA was adequate, including tiering to an earlier PRB EIS and whether a supplemental analysis was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLM took a hard look at elk impacts under NEPA. | Plaintiffs contend BLM failed to adequately analyze cumulative and indirect effects on the Fortification Creek elk herd. | BLM's analysis considered direct, indirect (effective) and security habitats, including southern range impacts, with adaptive management. | Yes; BLM adequately analyzed elk impacts and used a reasonable methodology. |
| Whether BLM properly analyzed water resources and tiered to the PRB EIS. | Plaintiffs argue water impacts were inadequately analyzed and a supplemental NEPA analysis was required. | BLM tiered to the Powder River Basin FEIS (PRB EIS) and addressed water impacts in RMPA/EA and Queen B EA. | Yes; tiering to the PRB EIS and site-specific water analyses satisfied NEPA requirements. |
| Whether the USGS report necessitated supplementation of the EA. | USGS findings would significantly alter the environmental landscape requiring a supplement. | USGS information did not present a seriously different picture; no supplemental EA was required. | No; supplementation not required given the record and existing analyses. |
| Whether the Queen B POD analysis was sufficient under NEPA. | Queen B EA must show significant impacts necessitating an EIS. | Queen B EA adequately discusses impacts within performance standards, with mitigation and monitoring. | Yes; Queen B EA satisfied NEPA and did not compel an EIS. |
| Whether the no-action alternative was properly analyzed given lease stipulations. | BLM overstated impacts by not fully incorporating NSO/CSU/TL stipulations. | No-action analysis reasonably excluded lease stipulations due to variability and waiver potential; impact comparisons remained valid. | Yes; omission was reasonable and not a basis to require an EIS. |
Key Cases Cited
- Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (adaptive management upholding NEPA hard look)
- Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 2011) (requiring hard look and reasonable analysis for NEPA decisions)
- Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113 (9th Cir. 2012) (scope of analysis and agency discretion in CEQ NEPA review)
- Kleppe v. Sierra Club, 427 U.S. 390 (1976) (agency’s decision on scope of environmental analysis must be reasonable)
- Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (caution against arbitrary geographic scope for cumulative effects)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires process; not final results; hard look and mitigation context)
- Nevada v. Dep’t of Energy, 457 F.3d 930 (D.C. Cir. 2006) (tiering and reliance on programmatic EIS in NEPA analyses)
- Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120 (D.C. Cir. 1985) (agency discretion in selecting testing methodologies)
- The 40 C.F.R. and CEQ regulations (referenced standards), 40 C.F.R. § 1508.27 (n/a) (NEPA intensity and context framework for significant impacts)