336 F. Supp. 3d 1204
D. Idaho
2018
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Background

  • BLM issued Instruction Memorandum IM 2018-034 (Jan. 31, 2018) replacing IM 2010-117 and directing expedited oil & gas leasing procedures, including a 6-month parcel review, optional public participation during NEPA, use of Determination of NEPA Adequacy (DNA) without public comment, and a 10-day protest period.
  • Plaintiffs Western Watersheds Project and Center for Biological Diversity challenge IM 2018-034 as violating FLPMA, NEPA, and the APA and sought a preliminary injunction to reinstate selected provisions of IM 2010-117 for future lease sales.
  • Intervenors (State of Wyoming and Western Energy Alliance) oppose, arguing lack of standing, non-reviewability, ripeness, and hardship from delaying lease sales.
  • The court found plaintiffs had organizational/membership standing based on declarations showing concrete recreational/aesthetic use of affected sage‑grouse habitats and procedural injury from compressed participation periods.
  • The court held IM 2018-034 is a final agency action, procedurally invalid because it was adopted without notice-and-comment where FLPMA requires regulations for public participation, and that it unlawfully curtailed required public involvement under FLPMA and NEPA.
  • The court granted a geographically limited preliminary injunction: for fourth-quarter (Dec.) 2018 and subsequent lease sales within greater sage‑grouse planning area boundaries, BLM must apply IM 2010-117 public participation, NEPA documentation, and protest provisions (but did not enjoin IM 2018-034’s 6-month parcel review); plaintiffs were ordered to post a $10,000 bond.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Standing Plaintiffs and members suffer concrete aesthetic/recreational and procedural injuries from IM 2018-034's curtailed participation and accelerated leasing IM 2018-034 causes only programmatic/procedural changes; under Summers plaintiffs lack concrete injury absent a settled implementing project Court: Standing satisfied—member affidavits show concrete geographic connection and procedural injury is complete; Summers distinguishable; Ninth Circuit precedents support programmatic/procedural standing
Final agency action / reviewability IM 2018-034 is a binding directive that replaced IM 2010-117 and has immediate practical/legal effects IM 2018-034 is only a nonbinding policy guidance that leaves field discretion and is not reviewable Court: IM 2018-034 is final agency action—consummation of decision‑making and imposes legal consequences (e.g., shortened protest period)
Procedural validity (notice-and-comment; FLPMA/NEPA public participation) IM 2018-034 effected binding changes limiting required public involvement and was issued without required rulemaking/notice-and-comment under FLPMA/APA and without adequate NEPA public procedures IM 2018-034 is a policy statement not subject to notice-and-comment and is consistent with regulations allowing reliance on existing NEPA documents Court: IM 2018-034 is procedurally invalid where it functions as binding rule changing public‑participation rights; it conflicts with FLPMA/NEPA public‑participation mandates
Preliminary injunction / irreparable harm / balance of equities Without injunction plaintiffs will suffer irreparable environmental and procedural harms and bureaucratic momentum will foreclose meaningful review; public interest favors robust participation Injunction would disrupt imminent (3rd quarter) lease sales, impose economic and planning harms on government, industry, and states Court: Injunction granted in part—does not apply to completed/near-complete 3rd-quarter sales; enjoined IM 2018-034 public participation, NEPA documentation, and protest provisions for Dec. 2018 and subsequent sage‑grouse area lease sales; plaintiffs must post $10,000 bond

Key Cases Cited

  • Bennett v. Spear, 520 U.S. 154 (1997) (defines final agency action for APA review)
  • Summers v. Earth Island Inst., 555 U.S. 488 (2009) (procedural‑rights standing requires concrete injury and particularized application)
  • Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard under APA)
  • Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of irreparable harm and merits showing)
  • Cottonwood Envtl. L. Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (procedural injury and standing to challenge programmatic management direction)
  • Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989) (NEPA harms include risk from bureaucratic momentum; supports irreparable harm analysis)
  • Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires informed decisionmaking; NEPA prescribes process not outcomes)
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