IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:08-cv-01460-MSK-KLM
COLORADO ENVIRONMENTAL COALITION, et al.,
Plaintiffs,
v.
KEN SALAZAR, et al.,
Defendants,
and
VANTAGE ENERGY PICEANCE LLC, et al.
Intervenors.
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF PETITION FOR REVIEW
OF AGENCY ACTION, REPLY MEMORANDUM IN SUPPORT OF MOTION FOR
JUDICIAL NOTICE, AND OPPOSITION TO MOTION TO STRIKE
James S. Angell
Michael S. Freeman
Margaret Parish
Earthjustice
1400 Glenarm Pl., #300
Denver, CO 80202
(303) 623-9466 (phone)
(303) 623-8083 (fax)
jangell@earthjustice.org
mfreeman@earthjustice.org
mparish@earthjustice.org
Michael Chiropolos
Western Resource Advocates
2260 Baseline Road, #200
Boulder, CO 80302
(303) 444-1188 (phone)
(303) 786-8054 (fax)
mike@westernresources.org
Attorneys for Plaintiffs
Filed April 20, 2009.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
EXHIBIT INDEX ........................................................................................................................... x
INTRODUCTION .......................................................................................................................... 1
ARGUMENT.................................................................................................................................. 2
I.
BLM Cannot Defer Its NEPA Analysis Until Later In The Development Process............ 2
II.
BLM Failed to Consider a Reasonable Range of Alternatives. .......................................... 7
A.
B.
The Transfer Act Did Not Require BLM to Lease the Entire Plateau............................ 8
1.
BLM Has Abandoned its Transfer Act Misinterpretation. ......................................... 8
2.
The Plain Language of the Transfer Act Does Not Support The Companies’
Argument. ................................................................................................................... 9
3.
The Companies’ Legislative History Argument Fails……………………………...11
BLM Did Not Consider the Key “Elements” of Alternative F and the Community
Alternative..................................................................................................................... 14
III. BLM Violated NEPA By Ignoring Most of the Reasonably Forseeable Development
Atop The Plateau............................................................................................................... 17
IV. BLM Failed to Assess Cumulative Impacts to Wildlife and Air Quality. ........................ 21
A.
BLM Failed to Assess Cumulative Impacts to Wildlife. .............................................. 21
B.
BLM Failed To Assess Cumulative Impacts on Air Quality........................................ 24
V.
BLM Violated NEPA By Failing To Analyze Ozone. ..................................................... 28
A.
BLM Did Not Analyze The Ozone Pollution Resulting from its Plan. ........................ 30
B.
BLM Arbitrarily Refused To Use Readily-Available Techniques To Evaluate The
Plan’s Ozone Impacts. .................................................................................................. 35
VI. BLM Violated FLPMA By Failing To Ensure Compliance With Air Quality Standards.
……………………………………………………………………………………………38
i
A.
B.
Plaintiffs’ FLPMA Claims are Ripe. ............................................................................ 39
BLM Violated FLPMA by Failing to Provide For Compliance with Air Quality
Standards....................................................................................................................... 41
VII. BLM’s Misleading Discussion Of PSD Increments Obscured The Air Quality
Degradation Caused By Its Plan. ...................................................................................... 42
VIII.The Public Documents and Demonstrative Exhibits Offered By CEC Are Properly The
Subject of Judicial Notice. ................................................................................................ 47
A.
Courts May Take Judicial Notice in Administrative Record Review Cases. ............... 47
B.
The Materials in Plaintiffs’ Opening Brief Meet the Standards for Judicial Notice. ... 48
C.
The Materials Presenting Adjudicative Facts Are Properly the Subject of Judicial
Notice............................................................................................................................ 51
1.
The Court May Consider CEC’s Map Illustrating BLM’s GIS Model of Full
Development Atop the Plateau. ................................................................................ 52
2.
The Court May Consider Publicly-Available Documents Offered As Background for
CEC’s Ozone Claims. ............................................................................................... 55
3.
The Court May Consider BLM EISs For Other Oil And Gas Development............ 58
4.
The Court May Consider A Map of the Roan Plateau Lease Parcels....................... 59
5.
The Court May Consider Paulette Middleton’s Explanation of The Scheffe Method.
................................................................................................................................... 60
6.
The Court May Consider Undisputed Government Materials.................................. 61
7.
The Court May Consider Newspaper Articles Addressing Undisputed Background
Facts. ......................................................................................................................... 62
D.
The CRS Memorandum Presents Legislative Facts That May Be Considered by the
Court. ............................................................................................................................ 62
E.
CEC’s Standing Declarations Are Properly Before the Court...................................... 64
CONCLUSION............................................................................................................................. 65
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Airport Neighbors Alliance v. United States, 90 F.3d 426 (10th Cir. 1996) .....................27
American Bankers Association v. National Credit Union Admin,
347 F. Supp. 2d 1061 (D.Utah 2004)...................................................48, 49, 51, 52, 62
America Mining Cong. v. Thomas, 772 F.2d 617 (10th Cir. 1985) ............................49, 58
Baker v. Barnhart, 457 F.3d 882 (8th Cir. 2006)...............................................................48
Baltimore Gas and Lamp, Electric Co. v. Natural Resources Defense Council,
Inc., 462 U.S. 87 (1983)...............................................................................................28
Bartnicki v. Vopper, 532 U.S. 514 (2001).........................................................................63
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)................................................57, 62
Blair v. City of Pomona, 223 F.3d 1074 (9th Cir. 2000) .............................................48, 56
Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir. 1988) ........................................5
Border Power Plant Working Group v. Department of Energy, 260 F. Supp. 2d
997 (S.D. Calif. 2003)..................................................................................................34
Calvert Cliffs Coord. Committee v. U.S. Atomic Energy Com'n, 449 F.2d 1109
(D.C. Cir. 1971) ...........................................................................................................15
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)....................................53
Colorado Environmental Coalition v. Lujan, 803 F. Supp. 364 (D.Colo. 1992)...............58
Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) ..............................................................3
Conservation Law Foundation v. Department of Air Force, 864 F. Supp. 265
(D.N.H. 1994) ..............................................................................................................45
Cruz-Funez v. Gonzales, 406 F.3d 1187 (10th Cir. 2005).................................................48
Custer County Action Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001)................20
iii
Daggett v. Commission on Governmental Ethics & Election Practices, 172 F.3d
104 (1st Cir. 1999) .......................................................................................................63
Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002)...................................................... passim
Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) ................................................................58
Fenner v. Suthers, 194 F. Supp. 2d 1146 (D. Colo. 2002).................................................59
Ft. Funston Dogs Walkers v. Babbitt, 96 F. Supp. 2d 1021 (N.D. Cal. 2000) ............52, 60
Fuel Safe Wash. v. FERC, 389 F.3d 1313 (10th Cir. 2004) ............................................. 20
George W. v. U.S. Department of Education, 149 F. Supp. 2d 1195 (E.D. Cal.
2000) ............................................................................................................................57
Grand Canyon Trust v. F.A.A., 290 F.3d 339 (D.C. Cir. 2002) ........................................22
Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257 (10th Cir. 2004)...........................35
Grynberg v. Kempthorne, 2008 WL 2445564 (D. Colo. Jun. 16, 2008) ...........................61
Hall v. UNUM Life Insurance Co. of America, 300 F.3d 1197 (10th Cir. 2007) .............54
Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283 (4th Cir. 1999) ...........38
Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir 1992)............................54
International Center for Technology Assessment v. Johanns, 473 F. Supp. 2d 9
(D.D.C. 2007) ..............................................................................................................54
Johnston v. Davis, 698 F.2d 1088 (10th Cir. 1983)...........................................................44
Klamath-Siskiyou Wildlands Center v. BLM, 387 F.3d 989 (9th Cir. 2004)....................23
Laborers Pension Fund v. Blackmore Sewer Construction, Inc., 298 F.3d 600 (7th
Cir. 2002) .....................................................................................................................61
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................................64
Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985).........................47
Montana Wilderness Associate v. Fry, 310 F. Supp. 2d 1127 (D. Mont. 2004)........6, 7, 37
iv
Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003)...............................................63
Motor Vehicle Manufacturer Association v. State Farm Mutual Automobile
Insurance Co., 463 U.S. 29 (1983)...................................................................17, 31, 43
Murakami v. United States, 46 Fed. Cl. 731 (Ct. Cl. 2000) ..............................................48
Nebraska v. EPA, 331 F.3d 995 (D.C. Cir. 2003) .................................................57, 59, 61
N. Alaska Env. Ctr. v. Kempthorne, 457 F.3d 969 (9th Cir. 2006).........................7, 16, 17
N. Plains Resource Council v. BLM, 2005 U.S. Dist. LEXIS 4678 (D. Mont.
2005) ............................................................................................................................39
N. Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980) .............................................7
National Audubon Society v. Hoffman, 132 F.3d 7 (2d Cir. 2007) ..................................58
Natural Resources Defense Council v. U.S. Forest Service, 421 F.3d 797 (9th Cir.
2005) ............................................................................................................................21
New Mexico Cattle Growers Association v. U.S. Fish & Wildlife Serv., 248 F.3d
1277 (10th Cir. 2001)...................................................................................................11
New Mexico ex rel. Richardson v. BLM, 459 F. Supp. 2d 1102 (D.N.M. 2006) .......20, 39
Northern Alaska Environmental Center v. Norton, 361 F. Supp. 2d 1069 (D.
Alaska 2005) ..........................................................................................................16, 17
Northwest Environmental Defense Center v. Bonneville Power Admin., 117 F.3d
1520 (9th Cir. 1997).....................................................................................................64
Ohio Forestry Association v. Sierra Club, 523 U.S. 726 (1998) .......................................39
Olenhouse v Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) ..............................8
Oregon Association of Homes for the Aging v. State of Oregon, 5 F.3d 1239 (9th
Cir. 1993) ...............................................................................................................59, 61
Oregon Natural Resources Council v. Brong, 492 F.3d 1120 (9th Cir. 2007) ..................22
Pacific Coast Federation of Fishermen's Association/Institute for Fisheries
Resources v. Gutierrez, 2007 WL 1752287
(E.D.Cal. June 15, 2007)........................................................................................48, 50, 60
v
Park County Resource Council v. U.S. Department of Agriculture, 817 F.2d 609
(10th Cir. 1987)......................................................................................................19, 20
Park Lake Resources LLC v. U.S. Department of Agriculture, 197 F.3d 448 (10th
Cir. 1999) .....................................................................................................................39
Parker v. Robinson, 2008 WL 1924376 (D. Colo. May 1, 2008)..........................57, 59, 62
Patterson v. Dahlsten Truck Line, Inc., 130 F. Supp. 2d 1228 (D.Kan. 2000)............48, 52
Pennaco Energy, Inc. v. U.S. Department of Interior, 377 F.3d 1147 (10th Cir.
2004) ....................................................................................................................4, 5, 33
Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006) .............................5, 7
Pueblo of Sandia v. United States, 50 F.3d 856 (10th Cir. 1995)......................................47
Purkey v Green, 28 Fed. Appx. 736 (10th Cir. 2001).........................................................61
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) ................................................12
Robertson v. Methow Valley Citizens Council,
490 U.S. 332 (1989).......................................................................................3, 7, 18, 32
SUWA v. Norton, 277 F. Supp. 2d 1169 (D. Utah 2003)..................................................27
San Juan Citizens Alliance v. Norton, 586 F. Supp. 2d 1270 (D.N.M. 2008).............34, 39
Sierra Club v. Department of Energy, 287 F.3d 1256 (10th Cir. 2002) ...........................40
Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983)............................................3, 4, 5
Smith v. Bender, 2008 WL 2751346 (D. Colo. July 11, 2008) .........................................57
Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d
735 (10th Cir. 2005).......................................................................................................9
State of Utah v. Department of Interior, 535 F.3d 1184 (10th Cir. 2008) .........................40
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).................................64
Summers v. Earth Island Institute, 129 S. Ct. 1142 (2008) ...............................................64
vi
TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) ..........................................................34
Telluride Income Growth LP, 364 B.R. 407 (10th Cir. BAP 2007) ..................................48
The Ark Initiative v. U.S. Forest Serv., 2007 WL 1757021 (D. Colo. Jun. 18,
2007) ............................................................................................................................58
Theodore Roosevelt Conservation Partnership v. Salazar, Slip Copy, 2009 WL
855969 (D.D.C. Mar. 31, 2009)...................................................................................37
The Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir. 1999) .................................40
The Wilderness Society v. Wisely, 524 F. Supp. 2d 1285
(D. Colo. 2007) .................................................................................................... passim
United States Department of Energy v. Brimmer, 776 F.2d 1554 (Temp. Emerg.
Ct. App. 1985)..............................................................................................................53
United States v. City of Detroit, 329 F.3d 515 (6th Cir. 2003) ...................................45, 47
United States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002) .................................................12
United States v. Mead Corp., 533 U.S. 218 (2001) .............................................................9
United States v. Pinson, 542 F.3d 822 (10th Cir. 2008) ....................................................64
United States v. Wolny, 133 F.3d 758 (10th Cir. 1998) ........................................48, 62, 63
Utah Env. Congress v. Russell, 518 F.3d 817 (10th Cir. 2008)........................................35
Utahns for Better Transp. v. U.S. Department of Transp., 305 F.3d 1152 (10th
Cir. 2002) .................................................................................................................8, 27
Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560 (10th Cir. 2000) .........................61
Vaughn v. Stevenson, 2007 WL 460959 (D. Colo. Feb. 7, 2007).....................................60
Walters v. Metropolitan Education Enterps., Inc., 519 U.S. 202 (1997)...........................41
Washington Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) ...................................57, 62
Wilderness Workshop v. BLM, 531 F.3d 1220 (10th Cir. 2008) ..........................26, 27, 28
vii
DOCKETED CASES
SUWA v. Allred, Civ. No. 1:08-CV-02187-RMU
(D.D.C. Jan. 17, 2009 Order).................................................................................29, 34
SUWA v. Kempthorne, Civ. No. 1:08-0411-LFO
(D.D.C. Dec. 1, 2008 Order)..................................................................................29, 30
FEDERAL STATUTES
10 U.S.C. § 7439..................................................................................................8, 9, 10, 11
42 U.S.C. § 4321..................................................................................................................2
42 U.S.C. § 7475................................................................................................................35
43 U.S.C. § 1712......................................................................................................4, 38, 41
FEDERAL REGULATIONS
40 C.F.R. § 52.21 ...............................................................................................................46
40 C.F.R. § 1502.1 .............................................................................................................42
40 C.F.R. § 1502.2 .................................................................................................42, 45, 47
40 C.F.R. § 1502.5 ...........................................................................................................3, 5
40 C.F.R. § 1502.22 ...........................................................................................................20
40 C.F.R. §§ 1508.7 ................................................................................................... passim
43 C.F.R. § 4.21 ...................................................................................................................3
43 C.F.R. § 1601.0-5............................................................................................................4
43 C.F.R. § 1601.0-6............................................................................................................4
43 C.F.R. § 1610.5-3..........................................................................................................38
43 C.F.R. § 2920.7 .............................................................................................................38
43 C.F.R. § 3120.1-3............................................................................................................4
viii
INTERIOR BOARD OF LAND APPEALS CASES
Wyoming Outdoor Council, 156 IBLA 377 (2002).............................................................3
Wyoming Outdoor Council, 176 IBLA 15 (2008).............................................................37
FEDERAL REGISTER
70 Fed. Reg. 68218 (Nov. 9, 2005)....................................................................................36
ix
EXHIBIT INDEX
EXHIBITS ATTACHED TO PLAINTIFF’S PETITION FOR REVIEW OF AGENCY ACTION
AND OPENING MEMORANDUM IN SUPPORT (Dkt. # 66)
Exhibit 1
Roan Plateau Proposed Resource Management Plan Amendment and Final
Environmental Impact Statement, August, 2006.
Exhibit 2
BLM Scoping Meeting handout, December 13, 2000.
Exhibit 3
BLM Instruction Memorandum 2002-238, Subject: Request for Time Sensitive
Plan Extended Team Participants, August 21, 2002.
Exhibit 4
“Wells undesirable for Roan Plateau,” Mike McKibbin, Grand Junction Daily
Sentinel, November 29, 2002.
Exhibit 5
E-mail from Marty Smith, Subject: ROAN PLATEAU Mtg Tues, 7/29, 8:30AM,
EEOB 430A, July 28, 2008.
Exhibit 6
E-mail from Julie Jacobson, Subject: Roan Plateau, March 8, 2008.
Exhibit 7
E-mail from Ron Wenker, Subject: Re: Expanded rationale charts for Roan and
San Juan, July 20, 2005.
Exhibit 8
E-mail from Glen Wallace, Subject: Re: Roan Plateau alternatives, December 3,
2002.
Exhibit 9
Save Roan Plateau Fact Sheet – A Closer Look at the Community Alternative,
February, 2005.
Exhibit 10
Letter from Harris D. Sherman, Colorado Department of Natural Resources, to
Sally Wisely, BLM, re: Comments on Proposed ACEC Provisions in the Roan
Plateau Resource Management Plan Amendment, December 20, 2007.
Exhibit 11
Letter from C. Stephen Allred, United States Department of the Interior, to
Honorable Bill Ritter, Jr., March 13, 2008.
Exhibit 12
News release from the United States Department of the Interior, “BLM’s Roan
Plateau plan moves forward,” March 13, 2008.
Exhibit 13
National Science and Technology comments regarding the Draft Final EIS.
Exhibit 14
Record of Decision for the Roan Plateau RMPA and EIS, June, 2007.
x
Exhibit 15
Comments from BLM and Cooperating Agencies regarding Roan Plateau
Preliminary Draft RMP/EIS Amendment, May 7, 2003.
Exhibit 16
E-mail from Duane Spencer, Subject: Phone call Rebecca Watson, September
12, 2008.
Exhibit 17
Letter from C. Stephen Allred, United States Department of the Interior, to
Earthjustice and Western Resource Advocates, regarding their August 14, 2008,
Competitive Oil & Gas Lease Sale Protest.
Exhibit 18
Responses from the BLM Glenwood Springs Field Office to the comments of the
BLM State Office, June 25, 2002.
Exhibit 19
NEPA Handbook on Planning for Fluid Mineral Resources.
Exhibit 20
Letter from Ayako Sato to Michael S. Freeman, November 17, 2008.
Exhibit 21
Land Status and Oil & Gas Parcels in the Roan Plateau Planning Area (map),
January 14, 2009.
Exhibit 22
Congressional Research Service Memorandum, Subject: Transfer Act
Limitations on State Receipt of Leasing Revenues and Congressional Intent for
Use of Public Lands in Colorado, July 31, 2007.
Exhibit 23
Report and Recommendations on the Management and Disposition of the Naval
Petroleum and Oil Shale Reserves, US Department of Energy, March, 1997.
Exhibit 24
Remarks of Representative Skaggs regarding the National Defense Authorization
Act for Fiscal Year 1998, June 20, 1997.
Exhibit 25
BLM Instruction Memorandum No. CO-00-001, October 6, 1999.
Exhibit 26
Analysis of the Management Situation for the Roan Plateau Area RMPA and
EIS, BLM, August, 2002.
Exhibit 27
E-mails regarding Subject: Review of Alternatives for Roan Plateau, November
13-14, 2002.
Exhibit 28
E-mail from Glenn Wallace, Subject: Re: Roan Plateau alternatives, November
25, 2002.
Exhibit 29
Instruction Memorandum No. 2004-089, January 16, 2004.
xi
Exhibit 30
Comments on the November, 2004 BLM Draft Roan Plateau RMPA and EIS,
from the Colorado Geological Survey and Colorado Oil and Gas Conservation
Commission, April 7, 2005.
Exhibit 31
Letter from Sally Wisely, BLM, to Reeves Brown, Club 20, September 2, 2008.
Exhibit 32
E-mail from Sherri Thompson, Subject: Follow-up to our call earlier today:re:
RFDs, names for alternatives, and carrying forward the ’99 Stipulations, July 2,
2002.
Exhibit 33
Land Use Planning Handbook, BLM Handbook H-1601-1, November 22, 2000.
Exhibit 34
Interagency Reference Guide, Reasonably Foreseeable Development Scenarios
and Cumulative Effects Analysis for Oil and Gas Activities on Federal Lands in
the Greater Rocky Mountain Region, August 30, 2002.
Exhibit 35
Guidelines for Assessing and Documenting Cumulative Impacts, BLM, April,
1994.
Exhibit 36
E-mail from Greg Goodenow, Subject: Cumulative Long Term Regional Oil &
Gas Development, July 9, 2002.
Exhibit 37
Letter from Bruce McCloskey, Director, Colorado Division of Wildlife, to Greg
Goodenow, Bureau of Land Management, Re: Roan Plateau Resource
Management Plan Amendment and Environmental Impact Statement, April 6,
2005.
Exhibit 38
Air Quality Assessment Report, Vernal and Glenwood Springs Resource
Management Plans, July, 2005.
Exhibit 39
Roan Plateau Lease Sale Protest, Colorado Environmental Coalition, July 30,
2008.
Exhibit 40
Ozone Air Quality Analysis in the Final Resource Management Plan
Amendment/Final Environmental Impact Statement for the Roan Plateau, Jana
B. Milford, Ph.D., J.D., October 11, 2006.
Exhibit 41
Oil and Gas Exploration and Production Emission Sources, Presentation for the
Air Quality Control Commission Retreat, May 15, 2008.
Exhibit 42
State of New Mexico Motion to Supplement Record on Appeal to the EPA
Environmental Appeals Board in the matter of Desert Rock Energy Corporation
LLC, Appeal No. 08-03; 8-O4 (Dck. # AZP 04-01).
xii
Exhibit 43
“Ozone levels, black cloud cause concern,” Dennis Webb, Grand Junction
Sentinel, December 15, 2008.
Exhibit 44
EPA Region 8 Comments (February 21, 2003) on the Draft Air Quality
Assessment Protocol for the Vernal and Glenwood Springs Resource
Management Plans dated January 31, 2003.
Exhibit 45
Comments from Colorado Department of Public Health and Environment, Air
Pollution Control Division, Technical Services Program, to BLM, December 20,
2002.
Exhibit 46
E-mail from Jerry Kenczka, Subject: Air Quality Comments, February 24, 2005.
Exhibit 47
Comments from the State of Utah regarding Vernal Field Office Draft RMP and
EIS.
Exhibit 48
Southern Utah Wilderness Alliance v. Kempthorne, Case No. 08-0411 (LFO) (D.
D.C.) Order, December 1, 2008.
Exhibit 49
Southern Utah Wilderness Alliance v. Kempthorne, Case No. 08-0411 (LFO) (D.
D.C.), Plaintiff’s Memorandum in Support of Motion for Summary Judgment,
May 12, 2008.
Exhibit 50
Letter from BLM Acting Assistant Director to Robert E. Yuhnke, dismissing
protest.
Exhibit 51
PSD Increment Tracking System document, Colorado Department of Public
Health and Environment, February 26, 2001.
Exhibit 52
“Roan Plateau Open for …. Comment,” Rebecca Watson, November 19, 2004.
Exhibit 53
E-mail from Lynn Rust, Subject: Roan Lease Protests Team, September 2, 2008
Exhibit 54
Declaration of Sara A. Watterson, January 16, 2009.
Exhibit 55
Notice of Competitive Lease Sale, Oil and Gas, June 9, 2008.
Exhibit 56
Roan Plateau DEIS Detailed Comments, from the Environmental Protection
Agency (also reproduced in Final EIS at D-26 to D-27).
xiii
EXHIBITS ATTACHED TO PLAINTIFFS’ REPLY MEMORANDUM
IN SUPPORT OF PETITION FOR REVIEW OF AGENCY ACTION,
REPLY MEMORANDUM IN SUPPORT OF MOTION FOR JUDICIAL NOTICE,
AND OPPOSITION TO MOTION TO STRIKE
Exhibit 57
Roan Plateau Proposed Resource Management Plan Amendment and Final
Environmental Impact Statement (EIS), August, 2006 (Excerpts)
Exhibit 58
1999 Glenwood Springs Resource Management Plan (RMP)
Exhibit 59
BLM Internal Correspondence, Draft Response to Western Resource Advocates
Record of Decision (ROD) Protest, December 7, 2006
Exhibit 60
R. Mathes, letter to Michael S. Freeman, November 14, 2008
Exhibit 61
Roan Plateau Draft RMP/EIS July 13, 2005 Cooperating Agencies Meeting,
Meeting Notes
Exhibit 62
E-mail from Rick Rudy, Roan Draft RMP Colorado Department of Natural
Resources Meeting Notes, February 14, 2005
Exhibit 63
Michael S. Freeman, letter to Ayako Sato, November 13, 2008
Exhibit 64
Unpublished Cases
Exhibit 65
SUWA v. Allred, Civ. No. 1:08-CV-02187-RMU, SUWA Motion for
Temporary Restraining Order and Preliminary Injunction, December 22, 2008
xiv
INTRODUCTION 1
The Federal Defendants (“BLM”) auctioned off Colorado’s Roan Plateau for aggressive
oil and gas development without considering reasonable alternatives, and without taking a hard
look at the impacts of its decisions. BLM and Defendant-Intervenors (the “Companies”) offer a
litany of excuses for these failures, many of which amount to nothing more than vague promises
to consider various impacts at some later date. 2 Defendants’ responses fail to show that BLM
seriously considered the environmental impacts of its development plan before issuing leases, at
a stage when such an analysis could meaningfully inform the agency’s decisions for the Roan
Plateau. Instead, BLM rushed to issue leases that irreversibly committed the Roan to its
aggressive development plan.
BLM violated the National Environmental Policy Act (“NEPA”) and the Federal Land
Policy and Management Act (“FLPMA”). This Court should vacate the agency’s decisions
approving the Resource Management Plan governing the Roan Plateau (the “RMP” or “Plan”)
1
On March 23, 2009, the Federal Defendants informed the Court that settlement discussions had
begun. (Dkt. # 92.) Since that time, settlement discussions with all parties have moved forward
and Plaintiffs are optimistic a settlement will soon be reached that will obviate the need for
adjudication of this case. Plaintiffs submit this Reply to comply with the Court’s scheduling
order. (Dkt. # 86.)
2
This Court limited the Companies’ intervention by ordering that they confer with BLM prior to
submitting any filings, and directing that the Companies may only “raise arguments or issues
Defendants decline to include in their filings.” (Dkt. ## 13, 51.) The Companies flouted that
order by submitting an 85-page brief that is nearly twice as long as BLM’s Response and that
raises most of the same arguments as BLM. The Companies’ assertion that they could not confer
with BLM is plainly incorrect. (Dkt. # 81 at 1-3.) The Companies insisted on filing their
Response well in advance of BLM on February 23, while BLM’s unopposed motion for
extension of the briefing schedule was pending. (Dkt. # 79.) At the time the Companies filed
their Response, BLM had already informed them that the Court anticipated addressing the
deadlines for the response briefs at a March 4, 2009 hearing. (Dkt. # 80.) The Companies
nevertheless used the pending motion for extension as an excuse to disregard their obligation to
coordinate briefing with BLM. (Dkt. # 81 at 1-3.)
1
and leasing the Plateau, and enjoin BLM from implementing its Plan until it complies with the
law. In addition, the Court should enter an injunction ordering BLM to cancel the leases issued
to the Companies.
In addition, this memorandum serves as the reply of Colorado Environmental Coalition,
et. al. (“CEC” or “Plaintiffs”) in support of its January 16, 2009 Motion for Judicial Notice (Dkt.
# 67), and response to BLM’s January 29, 2009 Motion to Strike (Dkt. ## 68, 68-2). BLM’s
request to strike every extra-record document offered by Plaintiffs ignores the plain language of
Federal Rule of Evidence 201, federal case law, and Constitutional standing requirements. The
Motion for Judicial Notice should be granted, and BLM’s Motion to Strike should be denied.
ARGUMENT
I.
BLM CANNOT DEFER ITS NEPA ANALYSIS UNTIL LATER IN THE
DEVELOPMENT PROCESS.
This case challenges BLM’s approval of its Plan for the Roan Plateau, and the agency’s
September 2008 issuance of oil and gas leases for the Roan Plateau Planning Area (the “Planning
Area”). Defendants devote much of their briefs to arguing that BLM can comply with NEPA by
supplying any and all missing analysis at some later, post-leasing, stage in the oil and gas
development process. See, e.g., BLM Br. at 13-15 (Dkt. # 92); Companies Br. at 16-22 (Dkt. #
81). This act-now-analyze-later argument conflicts with NEPA and should be rejected.
NEPA aims to safeguard against unnecessary environmental harms by requiring “that
environmental concerns be integrated into the very process of agency decision-making.” Davis
v. Mineta, 302 F.3d 1104, 1114 n. 5 (10th Cir. 2002) (internal quotation omitted); see also 42
U.S.C. § 4321 (Congressional declaration of purpose). NEPA’s environmental impact statement
2
(“EIS”) requirement implements this goal in two ways. First, “[i]t ensures that the agency, in
reaching its decision, will have available, and will carefully consider, detailed information
concerning significant environmental impacts.” Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 349 (1989) (emphasis added). Second, “it also guarantees that the relevant
information will be made available” to the public, so that it “may also play a role” in the decision
making process. Id.
To that end, NEPA’s implementing regulations require an agency to prepare its analysis
“early enough so that it can serve practically as an important contribution to the decision-making
process and will not be used to rationalize or justify decisions already made.” 40 C.F.R. §
1502.5. Courts therefore have required agencies to prepare an EIS before making an
“irreversible and irretrievable commitment of resources” to an action. Conner v. Burford, 848
F.2d 1441, 1446 (9th Cir. 1988); Sierra Club v. Peterson, 717 F.2d 1409, 1414-15 (D.C. Cir.
1983). In the oil and gas development context, that irreversible and irretrievable commitment
occurs when BLM issues leases allowing ground disturbance. Conner, 848 F.2d at 1446. 3
3
The actions of BLM and the Companies in this case demonstrate their own recognition of how
important that leasing commitment is. Neither BLM nor the Companies deny that Vantage’s
counsel successfully lobbied the Assistant Secretary of the Interior to depart from BLM’s normal
procedures and cut off Plaintiffs’ right to seek administrative remedies challenging issuance of
the Roan leases. CEC Br. at 12 (Dkt. # 66). In doing so, political appointees at the Interior
Department prevented the Interior Board of Land Appeals (“IBLA”) from maintaining the preleasing status quo by staying or suspending issuance of the leases. Id. In their defense, the
Companies mis-cite Wyoming Outdoor Council, 156 IBLA 377 (2002), to argue that the
effective date of the leases could not have been delayed by an IBLA appeal. The Companies
claim that 43 C.F.R. § 3120.1-3 creates an exception to the normal rule under 43 C.F.R. § 4.21(a)
maintaining the status quo during the time when parties can file an IBLA appeal. See CEC Br. at
12. Wyoming Outdoor Council, however, ruled that section 3120.1-3 is not applicable where (as
would have been the case here) a party files an IBLA appeal of BLM’s post-lease sale decision
denying a lease protest. 156 IBLA at 381-382. Indeed, the Companies point to no purpose for
3
Oil and gas development involves three stages of decision making. First, the agency
develops an RMP that determines what lands are available for leasing. 43 U.S.C. § 1712(a); 43
C.F.R. § 1601.0-5(n). While an RMP amendment like the one in this case may not represent an
“irreversible and irretrievable commitment,” BLM regulations require the agency to prepare an
EIS for the plan-level action. 43 C.F.R. § 1601.0-6. Like every EIS, the RMP EIS must analyze
all reasonably foreseeable impacts and comply with NEPA’s implementing regulations, 40
C.F.R. § 1500 et seq.
In the second stage, BLM may issue leases authorizing mineral development of specific
lands. If the leases allow ground disturbance, they represent an irreversible commitment
requiring a NEPA analysis. Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1160
(10th Cir. 2004); Ex. 19 at AR 964 (BLM Handbook for Planning for Fluid Mineral Resources). 4
When it issues leases, BLM gives leaseholders a right to use the land, and sets the ground rules
for future development. Crucially, if the lease does not bar surface disturbance, BLM loses the
authority to preclude oil and gas development on the surface at some later stage. Peterson, 717
F.2d at 1414.
In the third stage, a lessee (who already has a right to develop) applies for and obtains
permits to drill specific wells (the “APD stage”). 43 C.F.R. § 3162.3-1.
In this case, BLM leased the entire Roan Plateau, thereby irreversibly committing the
Roan to aggressive development, without considering the full environmental impacts of that
decision. CEC Br. at 6-13, 28-29 (Dkt. # 66). Defendants’ argument that the missing analysis
their extraordinary procedural tactic, other than to prevent IBLA from maintaining the preleasing status quo.
4
Exhibits to Plaintiffs’ opening brief (Dkt. # 66), and this brief, are cited as “Ex. __”.
4
can be provided at the final APD stage ignores NEPA’s requirement that BLM analyze the
Plan’s fundamental environmental impacts before it issued leases that irreversibly committed the
Roan to its Plan. Pennaco Energy, 377 F.3d at 1160. Whatever future analysis BLM does at the
final APD stage will make no “contribution to the decision making process” that determined
whether and under what terms the Roan Plateau would be leased. 40 C.F.R. § 1502.5; Davis,
302 F.3d at 1114-15.
For example, BLM’s refusal to consider reasonable alternatives – such as not leasing the
top of the Plateau – cannot be cured with later site-specific analysis when individual wells are
permitted. BLM foreclosed those alternatives when it leased the entire Plateau. See Pennaco,
377 F.3d at 1160 (post-leasing analysis insufficient because it “did not consider pre-leasing
options, such as not issuing leases at all”); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1229
n. 4 (9th Cir. 1988) (“by definition, the no-leasing option is no longer viable once the leases have
been issued”). Similarly, even if its later APD-stage NEPA analysis reveals that the Plan will
result in severe adverse impacts, BLM cannot impose new no surface occupancy (“NSO”)
stipulations to bar all surface disturbance and require development to occur from adjacent land
using directional drilling. See Peterson, 717 F.2d at 1414. NEPA did not allow BLM to defer its
analysis until after “the die had already been cast” by leasing the Plateau. Pit River Tribe v. U.S.
Forest Service, 469 F.3d 768, 784-87 (9th Cir. 2006) (internal quotation omitted).
Defendants try to downplay BLM’s failure to prepare an adequate NEPA analysis by
characterizing this case as involving merely the “question of how much detail should be included
at each stage” of leasing and development. BLM Br. at 13. BLM’s NEPA violations, however,
involve a complete failure of analysis – not simply an inadequate level of detail. BLM did not
5
offer even a general assessment of key environmental impacts such as ozone pollution or full
development atop the Plateau, to which more detail could be added at the APD stage. Instead,
the agency postponed its entire analysis of these issues. Providing the missing analysis at the
APD stage will not correct the agency’s total lack of information when it made the critical
leasing commitment for the Roan Plateau.
For example, ozone represents an important environmental impact associated with
development of the Roan. Yet BLM made an irreversible commitment to lease the entire Plateau
while remaining completely uninformed of how that decision would affect ozone pollution. Any
analysis at the APD stage will do nothing to inform that leasing decision. Moreover, ozone
cannot meaningfully be assessed on a well-by-well basis at the APD stage. The threats from
ozone and other air quality impacts arise from the combined emissions of the numerous sources
associated with development on the Roan, rather than from any single well. See p. 33-34, infra.
As one court described it, BLM’s approach “was essentially a ‘no look’[;] not a ‘hard look’
process.” Montana Wilderness Assoc. v. Fry, 310 F. Supp. 2d 1127, 1145-46 (D. Mont. 2004).
Moreover, BLM did not simply provide a less detailed analysis of the impacts of drilling
atop the Plateau, as Defendants suggest: it ignored the large majority of that drilling altogether.
BLM’s own analysis of reasonably foreseeable development atop the Plateau, and its computer
model of that drilling, indicated that about 1,400-2,000 wells would be drilled there. The Final
Environmental Impact Statement (“FEIS”), however, ignored all but 210 of those wells. CEC
Br. at 30. Any APD-stage analysis of the remaining 85-90 percent of the wells will come too
late to shape BLM’s decision whether to lease the top of the Plateau. Just as important, BLM’s
NEPA analysis never informed the public – even at a general level – of the impacts that will
6
result from those 1,400-2,000 wells atop the Plateau. A post-leasing assessment will disclose the
true fate of the Plateau to the public only after it is too late for the public to use that information
to “play a role in the process” that committed the Roan to BLM’s Plan. Robertson, 490 U.S. at
349; see also Montana Wilderness Assoc., 310 F. Supp. 2d at 1145-46 (plan-level EIS inadequate
for sale of leases because it did not analyze the development authorized by the leases); Pit River
Tribe, 469 F.3d at 783-84 (same). 5
NEPA’s purpose is to inform an agency’s decision making process. Robertson, 490 U.S.
at 349. NEPA therefore required BLM to do a full analysis prior to its leasing decision, when the
agency could still act on what it learned by refusing to issue leases or imposing no surface
occupancy stipulations in any such leases. BLM’s insistence on leasing first and analyzing later
violates NEPA.
II.
BLM FAILED TO CONSIDER A REASONABLE RANGE OF ALTERNATIVES.
Despite overwhelming public and local governmental support for a more measured
development approach, BLM refused to consider any option other than aggressive leasing of the
Roan Plateau. As a result, the agency refused to consider either Alternative F or the Community
Alternative, both of which were broadly popular. CEC Br. at 6-8. BLM justified this approach
5
N. Alaska Env. Ctr. v. Kempthorne (“NAEC”), 457 F.3d 969 (9th Cir. 2006), on which the
Companies rely, Companies Br. at 19-20, did not involve an agency’s refusal to analyze the full
impacts of its plan until after the leasing decision, as BLM has done for the Roan Plateau.
Instead, the agency adopted a leasing plan for an 8.8 million-acre area of Alaska, and assessed
the impacts that would result “if the total resources available in the area were to be discovered
and developed.” Id. at 974-975. The Ninth Circuit upheld this plan-level analysis, despite the
absence of a more detailed, site-specific, lease-by-lease discussion of impacts. Id. Another case
cited by the Companies, N. Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980), is also
inapposite. Andrus did not hold that an agency could defer its hard look until the APD stage.
Instead, the excerpt quoted by the Companies involved a much different issue not presented here:
whether a worst-case scenario must be analyzed. Id. at 606.
7
by arguing that any alternative that did not develop most or all the top of the Plateau would
violate the Transfer Act, 10 U.S.C. § 7439. CEC Br. at 18. Because BLM’s Transfer Act
rationale misinterprets the statute, the agency’s failure to consider more balanced development
scenarios violated NEPA. CEC Br. at 20; see also The Wilderness Society v. Wisely, 524 F.
Supp. 2d 1285, 1312 (D. Colo. 2007) (arbitrary and capricious refusal to consider alternative of
leasing with NSO stipulations violated NEPA); Utahns for Better Transp. v. U.S. Dep’t of
Transp., 305 F.3d 1152, 1165 (10th Cir. 2002) (NEPA violated by elimination of alternative
based on legally flawed cost-benefit analysis).
A.
The Transfer Act Did Not Require BLM to Lease the Entire Plateau.
1.
BLM Has Abandoned its Transfer Act Misinterpretation.
In developing its Plan, BLM relied primarily on the Transfer Act to justify its refusal to
consider alternatives that did not develop the top of the Plateau. The agency offered this
explanation again and again in rejecting balanced approaches like Alternative F and the
Community Alternative that would have protected the top of the Plateau. CEC Br. at 18. BLM’s
briefing in this Court, however, abandons its Transfer Act justification. While defending its
range of alternatives, the agency’s merits brief does not claim that its refusal to consider more
balanced alternatives was mandated by statute. See BLM Br. at 15-23. As a result, only the
Companies press the argument that BLM’s hands were tied in selecting management alternatives
for the Roan. Companies Br. at 22-36.
The Court may not uphold the range of alternatives based on a Transfer Act theory that
BLM does not support. See generally Olenhouse v Commodity Credit Corp., 42 F.3d 1560,
1575 (10th Cir. 1994) (decision must be upheld on basis articulated by the agency). In any
8
event, this Court should give no weight to BLM’s now-abandoned Transfer Act theory. The
theory was never entitled to deference in the first place, given the circumstances surrounding its
adoption: five years after the Transfer Act was enacted, BLM reversed its previous approach in
response to complaints by an industry trade group. Moreover, BLM never supported its theory
with any written legal analysis. 6 CEC Br. at 18-19, 25-28; United States v. Mead Corp., 533
U.S. 218, 231 (2001); Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d
735, 759-60 (10th Cir. 2005). But BLM’s abandonment of the theory eliminates any argument
for judicial deference, because the agency no longer asserts such a reading of the Transfer Act.
2.
The Plain Language of the Transfer Act Does Not Support The
Companies’ Argument.
The Companies claim that the Transfer Act mandated leasing most or all of the top of the
Plateau for mineral development. To support this theory, they rely on the statute’s direction that
BLM issue leases “on or in [Naval] Oil Shale Reserves [“NOSR”] Numbered 1 and 3.” 10
U.S.C. § 7439(b)(1); Ex. 21. The Companies contend that, because NOSR 1 lies largely atop the
Plateau, this language requires leasing most or all of the lands atop the Plateau. 7 Companies Br.
at 27-29.
Nothing in the Transfer Act requires that BLM lease “all” or “most” of NOSR 1, as the
Companies suggest. To the contrary, the statute preserves BLM’s normal discretion to select
which areas should be leased by expressly requiring that the Plateau be managed under FLPMA
6
The Companies note that Interior Department lawyers were involved in the planning process.
None of the Companies’ record citations referring to these lawyers, however, include anything
more than brief references to the statute that provide no legal analysis of the Transfer Act theory.
See Companies’ Br. at 35.
7
NOSR 1 generally, but not entirely, lay on the top of the Plateau, while NOSR 3 included lower
elevation lands around the Plateau’s base. CEC Br. at 5; Ex. 21 (map).
9
and the Mineral Leasing Act. 10 U.S.C. §§ 7439(b)(1), 7439(c); CEC Br. at 21 (BLM has
discretion under these statutes not to lease particular lands).
The Companies also are incorrect in arguing that NOSR 1 consists solely of lands above
the rim of the Plateau and that BLM therefore could not protect the entire top of the Plateau from
leasing without violating the Transfer Act. Companies’ Br. at 27-28. A portion of NOSR 1 does
lie below the rim. See Ex. 21. BLM complied with any obligation under the Transfer Act in
1999 by leasing a small area of NOSR 1 near where production was already occurring. Ex. 1 at
3-107 to 3-108; see also Ex. 58 at AR 24339. Moreover, other areas of NOSR 1 not leased until
2008 also extend below the rim of the Plateau. See Ex. 21. Thus, there is no conflict between
protecting the top of the Plateau and complying with the Transfer Act.
Even if the Transfer Act did require that “all” of NOSR 1 be leased, the statute still
cannot excuse BLM’s rejection of the Community Alternative and similar proposals that would
have leased the top of the Plateau, but imposed no surface occupancy stipulations. The statute
makes no mention of the surface occupancy terms for any leases. See 10 U.S.C. § 7439. But in
rejecting these alternatives, BLM essentially contended that the Act required not only leasing the
top of the Plateau, but that those leases must allow surface occupancy. See Ex. 1 at 6-58 (“BLM
does not believe that a[] [No Ground Disturbance/No Surface Occupancy stipulation] on the
entire upper plateau is [ ] consistent with the Transfer Act.”). This argument has no support in
the statute, and even the Companies offer no explanation for how the statutory language could
justify it.
10
3.
The Companies’ Legislative History Argument Fails.
Because the plain language of the Transfer Act is clear, this Court does not need to
consider its legislative history. New Mexico Cattle Growers Ass’n v. U.S. Fish & Wildlife
Serv., 248 F.3d 1277, 1281-82 (10th Cir. 2001). The Companies nevertheless try to buttress
their aggressive view of the Transfer Act by arguing that its legislative history demonstrates
Congress intended the Roan Plateau to be managed to maximize federal revenue. Companies’
Br. at 30. In the Companies’ view, Congress eliminated BLM’s usual discretion under its
multiple-use mandate and elevated revenue generation above all other public uses of the Roan
Plateau. This theory has no merit.
As noted above, Congress preserved BLM’s ordinary management discretion by
expressly directing that the Plateau be managed in accordance with FLPMA and the Mineral
Leasing Act. 10 U.S.C. §§ 7439(b)(1), 7439(c). Moreover, the alternatives rejected by BLM
would have met any Congressional desire to generate “substantial revenues” from the Roan
Plateau, Companies Br. at 30, because those alternatives provided for significant leasing in the
less sensitive parts of the Planning Area.
Much of the Companies’ legislative history argument does not even address the Transfer
Act. Instead, the Companies rely on legislative history from earlier, failed bills from the mid1990s that were substantially different from the Transfer Act. Companies’ Br. at 31. 8
8
See, e.g., S. Rep. 104-398 (noting that hearings held in 1993-94 on bill that would have
authorized leasing, but which was never adopted); 141 Cong. Rec. S 1442-04 at 3, available at
1995 WL 24954 (Jan. 24, 1995) (proposing joint leasing program by Interior and Energy
Departments); 104 H. Rep. 280 (1995) (discussing bill that would have required sale of NOSRs
to private parties); 102 H. Rep. 610 (allowing leasing, focused on NOSR 3, due to concern over
drainage from adjacent lands). The Companies also cite 104 H. Rep. 575, a nonbinding 1995
Congressional budget resolution describing the newly-elected Congress’s aspirations for the
11
Statements by legislators regarding unsuccessful and substantially different bills say little about
what Congress intended when it did enact the Transfer Act. See United States v. Lipscomb, 299
F.3d 303, 328 n. 130 (5th Cir. 2002) (it is misguided to rely on the legislative history of an
unsuccessful 1981 bill for guidance about a differently-worded bill passed in 1983); see also Red
Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-82 n.11 (1969) (“unsuccessful attempts at
legislation are not the best guides to legislative intent”).
In any case, discussions surrounding that unsuccessful legislation do not reflect a
Congressional intent to bestow the Roan Plateau with some special status requiring single-use
management for revenue generation. The legislative history cited by the Companies reflects
Congress’s concern that the existing program of small-scale mineral development run by the
Energy Department was losing money, and that such development could proceed more
efficiently by involving the private sector. See Companies Br. at 4 (citing to 141 Cong. Rec.
S11227, S11317 (Aug. 3, 1995)). None of the history cited by the Companies indicates that
Congress intended to require BLM to lease every acre of NOSR 1.
Instead, Congress anticipated that federal revenue could be generated under BLM’s
exercise of its normal leasing authority. For example, the Companies cite a number of comments
by former Colorado Senator Ben Campbell. Companies Br. at 31-32. They neglect, however, to
quote Senator Campbell’s explanation of how he expected leasing by the Interior Department to
proceed. Senator Campbell explained in 1995 that if the NOSRs were transferred to the Interior
Department, “[t]he reserves could be competitively leased by the Department of the Interior just
years 1998-2002. In addition to NOSR legislation, the resolution advocates elimination of the
Department of Commerce and selling off all National Oceanic and Atmospheric Administration
research vessels. Id. at 80, 86. This manifesto has no legal force, as demonstrated by the
continued existence of the Commerce Department.
12
the same as the other millions of acres of federally owned, energy resource lands in America.”
141 Cong. Rec. S 11227, S 11317-318 (Aug. 3, 1995) (emphasis added). 9 Those millions of
other acres are leased pursuant to FLPMA and the Mineral Leasing Act, which give BLM
discretion not to lease certain areas. CEC Br. at 21.
When Congress finally did enact legislation for the Roan, it pursued a more balanced set
of goals than the Companies claim. A 1996 statute directed the Energy Department to study and
submit recommendations to Congress for management of the NOSRs. 110 Stat. 186, 636-637
(1996). Congress and the Energy Department, however, rejected the study’s recommendation to
maximize federal revenue by selling NOSR 1 to private parties. CEC Br. at 23. Instead, the
Energy Department proposed, and Congress agreed, to maximize “the potential long-term
benefits, both economic and noneconomic” to the public by maintaining the Roan under federal
ownership. Ex. 23 at AR 47871 (emphasis added); CEC Br. at 23-24. Both the Energy
Department and Congress expressly recognized that preserving the Roan’s noneconomic values
could mean foregoing some mineral development by setting aside land “as wilderness or . . .
other special protected designation.” Ex. 24 at 1 (comments of Rep. Skaggs); Ex. 23 at AR
47870-71 (Energy Department report); CEC Br. at 23-24.
In keeping with this balanced approach, the Transfer Act directed that the Interior
Department manage the Roan for multiple uses pursuant to FLPMA, rather than sacrificing the
entire area for the single goal of generating federal mineral revenue. Alternative F, and the
Community Alternative, satisfied that multiple-use intent. Both Alternative F and the
9
See also 139 Cong. Rec. S 8233-01 (2003 comments by Senator Campbell proposing program
under which NOSRs would be managed under FLPMA, and Energy and Interior Departments
given joint authority, but not mandate, to issue leases).
13
Community Alternative would have generated substantial mineral revenue by leasing less
sensitive areas of the Roan Plateau, while also protecting the valuable lands atop the Plateau. 10
CEC Br. at 6-8, 15-16, 20-22. Because the Transfer Act did not limit its discretion, BLM
violated NEPA by addressing only aggressive development options and refusing to consider the
more balanced options favored by the public and local governments. Id. at 6-8.
B.
BLM Did Not Consider the Key “Elements” of Alternative F and the
Community Alternative.
Defendants raise two additional arguments to excuse BLM’s failure to consider
protective alternatives. Both fail. First, they contend that “elements” of a plan protecting the top
of the Plateau were included in other action alternatives. BLM Br. at 20-23; Companies Br. at
23-25. But Defendants ignore the central element sought by the public and local governments in
Alternative F and the Community Alternative: that the top of the Plateau not be disturbed for oil
and gas development. CEC Br. at 15-16. BLM refused to consider any alternative that would
have accomplished that goal while allowing development to proceed in less sensitive areas
around the base of the Plateau. The agency’s most environmentally protective action alternative
called for leasing fully 70 percent of the top and bottom of the Plateau – and all the others leased
10
The Companies dramatically overstate the financial significance of BLM’s August 2008 Roan
Plateau lease sale. Companies Br. at 11-12. First, while the Companies purport to compare the
Roan sale to “BLM’s total oil and gas leasing revenues” for the years 2005-2008, their
measurements actually: (a) consider only leases sold in the State of Colorado, rather than
nationwide, see Companies Br. at 12 n. 5; and (b) ignore many or most of BLM’s oil and gas
leasing revenues, which are paid in the form of royalties. For example, BLM’s federal onshore
mineral royalties totaled more than $3.1 Billion in fiscal 2007. The Roan Plateau lease sale
brought in only 3.6 percent of that figure.
http://www.blm.gov/pgdata/etc/medialib/blm/wo/MINERALS__REALTY__AND_RESOURCE
_PROTECTION_/energy/oil___gas_statistics.Par.25404.File.dat/chart_19.pdf (last viewed Apr.
20, 2009).
14
every last acre of the Plateau. Id. at 15. Protecting the top, while developing the base, was a
widely popular and balanced middle ground that should have been considered. See Wisely, 524
F. Supp. 2d at 1311-12 (rejecting alternatives analysis that did not consider protecting area
through NSO stipulations and directional drilling). 11
Second, Defendants contend that the NEPA-mandated “no-action alternative” substituted
for an alternative protecting the top of the Plateau from surface disturbance. BLM Br. at 20-22;
Companies Br. at 23-25. The option of taking no action at all did not substitute for considering
Alternative F or the Community Alternative. NEPA requires consideration of all reasonable
alternatives so that agencies take into account approaches that alter the “cost-benefit balance”
and can make “the most intelligent, optimally beneficial decision.” Calvert Cliffs Coord. Comm.
v. U.S. Atomic Energy Com’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).
The no-action alternative here had a far different “cost-benefit balance” than the two
alternatives BLM refused to consider. The no-action alternative would have left even the lesssensitive parts of the Planning Area closed to new leasing and so generated no new mineral
revenue at all. The no-action alternative also would not have served any of the other
management goals sought by BLM, such as travel management and comprehensive land use
planning. BLM staff recognized these important differences, and noted that taking no action
“will not be viewed as representing what the adjacent communities wanted at all.” CEC Br. at
15 n. 7. This Court has recognized in a similar situation that the “absolutism” of BLM’s no11
While BLM emphasizes its “NSO” stipulations, designation of areas of critical environmental
concern, and other measures, it does not dispute the fundamental point that every action
alternative analyzed by BLM opened much or all of the top of the Plateau to surface disturbance
and development. CEC Br. at 15; Ex. 1 at 4-5. BLM’s argument also overstates the protections
actually offered by its Plan. As Plaintiffs explained in their Opening Brief, the “NSO”
stipulations actually allow ground disturbance atop the Plateau. CEC Br. at 9-11.
15
action alternative does not substitute for a more protective middle ground alternative that allows
some development while protecting an area from surface disturbance. Wisely, 524 F. Supp. 2d
at 1312. The same is true in this case.
Moreover, BLM never seriously considered adopting the no-action alternative, which it
claimed was also precluded by the Transfer Act. CEC Br. at 18; see also Davis v. Mineta, 302
F.3d at 1120 (“no build” option not adequate alternative to proposed action where it did not
satisfy purpose of agency decision). The agency acknowledges as much, noting that the noaction alternative exists “not to represent the most environmentally protective alternative,” but
instead “is designed as a benchmark to measure the potential impacts of the proposed federal
action.” BLM Br. at 21 n. 8. BLM can hardly excuse its failure to consider protective
alternatives by pointing to a no-action alternative that the agency made clear it would never
choose. 12
12
Defendants’ reliance on NAEC, 457 F.3d 969 (9th Cir. 2006), is misplaced. Companies Br. at
26; BLM Br. at 18-19. Unlike this case, NAEC involved a vast region of Alaska totaling nearly
nine million acres, and hundreds of individual lease parcels, for which an almost unlimited array
of development options might have been considered. By contrast, the Roan Plateau is less than
one percent of that size, and this dispute involves development options for only two discrete
areas: the base and top of the Plateau. NAEC, 457 F.3d at 974; CEC Br. at 2.
Moreover, the NAEC court upheld an alternatives analysis that included the middle
ground development alternatives missing from this case. In NAEC, BLM considered a no-action
alternative, and two alternatives opening 96-100 percent of the area for leasing. But it also
analyzed two “middle ground” options. One would have opened 47 percent of the area to
leasing, but permitted leasing on only two percent of “high petroleum potential areas because the
areas of highest potential . . . overlap with the most biologically sensitive areas.” Northern
Alaska Environmental Center v. Norton, 361 F. Supp. 2d 1069, 1073-74 (D. Alaska 2005). The
second middle ground alternative would have deferred leasing, or imposed NSO obligations, on
33 percent of the area. Id. at 1076. The district court found the range of alternatives, with its
middle ground options, adequate. Id. at 1075. This ruling was affirmed by the Ninth Circuit.
NAEC, 457 F.3d at 978.
By contrast, BLM on the Roan violated NEPA by limiting itself to the “absolutism” of
either aggressive development or taking no action at all. Wisely, 524 F. Supp. 2d at 1312. The
16
III.
BLM VIOLATED NEPA BY IGNORING MOST OF THE REASONABLY
FORESEEABLE DEVELOPMENT ATOP THE PLATEAU.
BLM leased the entire top of the Plateau in a single auction, relying on a NEPA analysis
that addressed only a small fraction of the development anticipated there. BLM’s own computer
modeling and analysis showed that approximately 1,400-2,000 wells are reasonably foreseeable
atop the Plateau. CEC Br. at 31-34. But by imposing an artificial 20-year cutoff date, BLM’s
NEPA analysis considers the impacts of only 210 wells, a fraction of the development that the
agency recognized may occur. CEC Br. at 30. In effect, because BLM’s Plan calls for drilling to
proceed in six geographic phases, the agency analyzed the impacts of drilling only the first
phase, covering just a few of the 17 leases it sold atop the Plateau. CEC Br. at 30. NEPA does
not allow BLM to ignore the impacts of 85-90 percent of the development it recognizes is
reasonably foreseeable above the rim of the Plateau.
BLM and the Companies insist that NEPA does not require any discussion beyond the
artificial 20-year cutoff because such development supposedly is speculative. This position is
arbitrary and capricious, because it “runs counter to the evidence before the agency.” Motor
Vehicle Mfr. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). BLM’s own
analysis of reasonably foreseeable development (“RFD”) indicates that thousands of wells may
be drilled atop the Plateau. CEC Br. at 30. Having made that determination, BLM may not
pretend otherwise in its impacts analysis.
Moreover, BLM not only anticipated the number of wells atop the Plateau, but it also
predicted their potential locations. BLM prepared a geographic information system (“GIS”)
district court opinion in NAEC, in fact, underscores this point by observing that “a ‘hard look’
[under NEPA] should require the BLM to analyze more than ‘all or nothing’ alternatives.”
Northern Alaska Environmental Center, 361 F. Supp. 2d at 1075.
17
model plotting potential well locations and roads when the top of the Plateau is fully developed,
in order to confirm that its Plan would allow operators to recover substantially all of the natural
gas there. See CEC Br. at 33–34. BLM violated NEPA by failing to use its own RFD and GIS
analyses to assess the environmental impacts of that development, and to disclose those impacts
to the public. Robertson, 490 U.S. at 349.
Defendants devote many pages to explaining that the RFD analysis is not a definite
prediction of the number of wells that will be drilled under BLM’s Plan. 13 Companies Br. at 3742. This argument is a straw man, because CEC made the same point in its opening brief. CEC
Br. at 32. The RFD analysis provides a baseline of reasonably foreseeable development for
BLM’s NEPA analysis, with the numbers of wells (and environmental impacts) adjusted from
the RFD figure to account for any constraints imposed under different management alternatives.
Id.
While the RFD analysis may not be a precise prediction of the wells expected under
BLM’s Plan, it remains highly significant. The analysis shows that the large majority of wells
will be drilled after BLM’s artificial cut-off date, and that such continued development is
reasonably foreseeable. Defendants point to nothing in the RFD analysis suggesting that
development will suddenly stop after 20 years. Nor do they identify any requirements of the
13
In contrast to the RFD analysis, BLM and the Companies are deafeningly silent regarding the
GIS model of well locations and roads. They offer no explanation of BLM’s GIS map, or even
any excuse for why BLM could not use it to estimate the impacts of the drilling it predicts. In its
Motion to Strike, BLM simply asks the Court to ignore the obvious inconsistency between its
GIS analysis and the agency’s position in this case. (Dkt. # 68) (BLM Motion to Strike
demonstrative map provided by CEC). The Court should decline BLM’s invitation. See p. 52,
infra.
18
Plan that will terminate development, or cancel the leases, after 20 years. 14 Indeed, Vantage did
not pay tens of millions of dollars with the expectation that it would never develop most of the
17 leases it purchased on the top of the Plateau. CEC Br. at 36; see also Ex. 13 at AR 36778
(BLM National Science and Technology Center’s comments that “the bulk of the development
will occur beyond the 20 year threshold” and “significant impacts are anticipated beyond” that
period); Ex. 59 at AR 10499 (BLM draft explaining that “since leases are issued in perpetuity . . .
most development will occur after the 20 years”). BLM’s NEPA analysis must account for the
certainty that Vantage will seek to recover its investment by developing those leases.
The administrative record amply supports BLM’s forecast that the top of the Plateau will
be fully developed. The Roan Plateau is surrounded by booming gas fields where companies
already have developed numerous natural gas wells with a 98 percent success rate. Ex. 1 at H-1.
BLM’s RFD report predicts that geologically, “there is little risk in extending the existing
[drilling] Fields into NOSR 1” (the top of the Plateau) because the “saturated zone will probably
underlie most of the plateau.” CEC Br. at 35.
The record-setting bids received for the Roan Plateau contrast sharply with Park County
Resource Council v. U.S. Department of Agriculture, 817 F.2d 609 (10th Cir. 1987). See BLM
Br. at 25-26. In Park County, the leasing area was an undeveloped field where exploration
14
The Companies also object to the statement in Plaintiffs’ opening brief that approximately
1,400 to 2,000 wells are reasonably foreseeable. These figures are necessarily only estimates,
because of BLM’s failure to do such an analysis. The 1,400-2,000 well figure, however,
accurately reflects the number of wells that BLM’s own GIS model and RFD analysis indicate
may be drilled. See CEC Br. at 33-34; Ex. 54 at 4.
19
resulted in only dry wells that had been plugged and abandoned. 817 F.2d at 615. 15 The Tenth
Circuit, in fact, expressly distinguished that case from the facts here, where “full field
development [is] likely to occur and could be specifically described” by BLM. Id. at 623. Park
County does not stand for the proposition that BLM can disregard its own estimates about the
numbers and locations of wells likely to be drilled in an environmentally critical area. See New
Mexico ex rel. Richardson v. BLM, 459 F. Supp. 2d 1102, 1117-1118 (D.N.M. 2006), appeal
pending (noting similar distinction).
BLM’s artificial cutoff not only allowed the agency to ignore most of the Plan’s impacts
atop the Plateau, it also distorted the agency’s comparison between different alternatives. An
EIS must “permit a reasoned choice of alternatives as far as environmental aspects are
concerned.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1039-40 (10th Cir. 2001).
Relevant but incomplete information “essential to a reasoned choice among alternatives” must be
included in the EIS. 40 C.F.R. § 1502.22(a). By ignoring the impacts of development atop the
Plateau after 20 years, BLM made its Plan for phased development appear far more protective of
the top of the Plateau than other non-phased alternatives.
This distortion is perhaps most clear in the comparison between BLM’s Plan and FEIS
Alternative II. BLM labeled Alternative II the “environmentally most protective” alternative.
Ex. 57 at 4-16. (Alternative II leased 70 percent of the Plateau, as opposed to 100 percent under
BLM’s Plan. CEC Br. at 15.) Yet according to the FEIS, its more aggressive Plan would result
15
Similarly, Fuel Safe Wash. v. FERC, 389 F.3d 1313 (10th Cir. 2004), BLM Br. at 26, held that
an agency did not need to consider the environmental impacts of pipeline repairs as distinct from
pipeline construction impacts because the court viewed such repairs as an “exceedingly rare”
occurrence and their scope or frequency “impossible to determine.” Fuel Safe Wash., 389 F.3d
1329. The same is not true of development atop the Plateau.
20
in less than a third of the total ground disturbance atop the Plateau compared to the
“environmentally preferred” Alternative II. Ex. 1 at 4-8, Ex. 57 at 4-16. This rosy prediction is
misleading, because BLM’s Plan will ultimately result in development throughout the top of the
Plateau that is not disclosed in the FEIS.
Alternative II did not provide for phased development, unlike BLM’s Plan. Without such
phasing, relatively little (if any) anticipated development under Alternative II fell outside the
agency’s window of analysis. As a result, the FEIS estimates include most or all of the
Alternative II development, but omit most of the reasonably foreseeable development under
BLM’s Plan. Consequently, BLM’s artificial 20-year cut-off distorts its comparison of
alternatives and makes the Plan appear more protective than it actually is. This distortion
violated NEPA by obscuring the true impacts of BLM’s Plan and thus preventing a reasoned
choice between alternatives. See Natural Resources Defense Council v. U.S. Forest Service, 421
F.3d 797, 811 (9th Cir. 2005) (“Where the information in the initial EIS was so incomplete or
misleading that the decisionmaker and the public could not make an informed comparison of the
alternatives, revision of an EIS may be necessary.”) (internal quotations omitted).
IV.
BLM FAILED TO ASSESS CUMULATIVE IMPACTS TO WILDLIFE AND AIR
QUALITY.
A.
BLM Failed to Assess Cumulative Impacts to Wildlife.
The FEIS reveals that the Plan will cause “significant[ ]” and “permanent” damage to big
game winter range in the Planning Area. FEIS at 4-61 (Dkt. # 85.3 at AR 3489) (predicting
“moderate” adverse impacts); Ex. 1 at 4-6 (defining “moderate”). While important, that warning
fails to fully account for the full impacts of the Plan because it ignores the context in which those
impacts will occur. The Roan Plateau is surrounded by booming oil and gas fields, with
21
numerous wells, roads, and pipelines bordering much of the Planning Area. That development
outside the Planning Area destroys wildlife habitat, just as it will on the Roan Plateau itself.
CEC Br. at 37-39. BLM violated NEPA by failing to consider how its Plan, in combination with
similar oil and gas development just outside the Planning Area, will affect wildlife populations
and the habitat on which they depend.
BLM’s violation had two components. First, the agency did not evaluate the impacts of
its Plan in combination with reasonably foreseeable future wells drilled outside of the Planning
Area. Second, BLM failed to assess how the Plan will affect wildlife when its damage to habitat
is combined with existing development outside the Planning Area. 40 C.F.R. §§ 1508.7,
1502.15; Grand Canyon Trust v. F.A.A., 290 F.3d 339, 346 (D.C. Cir. 2002); CEC Br. at 39.
BLM claims it “arrive[d] at reasonable prediction” of cumulative habitat losses that will
occur from development outside the Planning Area. But the only “predictions” offered by BLM
are: (1) the self-evident statement that habitat “losses [inside the Planning Area] would be
cumulative to the losses resulting from oil and gas development in lands outside the Planning
Area;” and (2) the vague declaration that big game habitat outside the Planning Area “has
already been subject to loss of winter range and would probably continue to be subject to losses
at levels comparable to, or greater than, those on BLM lands in the Planning Area.” BLM Br. at
31; Ex. 1 at 4-59. These two vague sentences provide no meaningful analysis that could inform
the public or the agency’s decision making. CEC Br. at 40-41. BLM must do more than just
state that environmental harms are occurring outside the Planning Area and that the Plan’s new
impacts will be additive. Oregon Natural Resources Council Fund v. Brong, 492 F.3d 1120,
22
1133 & n. 19 (9th Cir. 2007); Klamath-Siskiyou Wildlands Center v. BLM, 387 F.3d 989, 99394 (9th Cir. 2004).
In an attempt to show that it accounted for oil and gas development outside the Planning
Area, BLM also offers a long list of citations from the administrative record. BLM Br. at 29-31.
The cited documents discuss existing habitat conditions in and around the Planning Area, but
none provide the missing cumulative impacts analysis. For example, most make no mention at
all of the impacts of oil and gas development on habitat outside the Planning Area. See BLM
Exs. 1, 4-5 (Dkt. # 92) at AR 3329 (summary of habitat acreages and history with no mention of
oil and gas), AR 14365, 14497 (Analyses of Management Situation that have no discussion of oil
and gas impacts, or are limited to impacts within Planning Area), AR 46498 (assessment of the
Roan Cliffs).
A few references acknowledge in passing that oil and gas development has had negative
impacts on habitat in the region. See, e.g., BLM Ex. 12 (Dkt. # 92) at AR 26785 (2005 study
noting that big game winter range may already “be near, at, or above animal carrying capacity”
and that “[c]ontinually increasing natural gas development is fragmenting winter range habitats
and reducing the amount of effective habitat in the area”). But BLM never used even that
limited information to develop a cumulative impacts discussion considering the incremental
damage from the Plan “when added to [those] past, present and reasonably foreseeable future”
habitat losses. See 40 C.F.R. § 1508.7 (defining cumulative effects). For example, BLM does
not analyze whether mule deer displaced as a result of habitat losses under the Plan will further
overload winter range outside the Planning Area that was already “near, at, or above” carrying
23
capacity, see BLM Ex. 12 at AR 26785 – and if so, what will happen to those populations or the
health of the habitat.
Defendants’ suggestion that the State of Colorado supported BLM’s cumulative impacts
analysis is similarly off-base. Companies Br. at 48-49. In fact, the State raised serious concerns
with BLM’s analysis, and did so repeatedly. The State wrote that BLM had “preclude[d]
accurate assessment” of cumulative effects by failing to consider the area just west of the
Planning Area, which already had experienced heavy oil and gas development. Ex. 37 at AR
12838-839 (April 6, 2005 letter). A few months later, Colorado again raised concerns that “the
information about proposed actions in the document today does not allow reader to understand
cumulative impacts.” Ex. 61 at AR 12872-73; see also Ex. 62 at AR 12746 (Colorado Division
of Wildlife “pointed out that th[e] analysis missed cumulative impacts on wildlife”). Far from
endorsing BLM’s cumulative impacts analysis, these comments make clear that the State
repeatedly highlighted the shortcomings of that analysis. 16
B.
BLM Failed To Assess Cumulative Impacts on Air Quality.
BLM also ignored much of the foreseeable oil and gas development around the Roan
Plateau area when analyzing air quality. BLM’s air quality model evaluated foreseeable
emissions from future drilling inside the Planning Area, but ignored emissions from thousands of
new wells anticipated to be drilled just outside the Planning Area. See Ex. 1 at 4-3 (predicting
16
More generally, both BLM and the Companies imply that the State of Colorado supported
BLM’s Roan Plateau Plan. Companies Br. at 7; BLM Br. at 5. This is patently untrue. In fact,
the State filed a formal administrative protest of the lease sale. CEC Br. at 11-12. In addition,
the Colorado Department of Natural Resources recommended much larger protected areas
(“ACECs”) than those in the Plan, and unlike the Plan would have limited oil and gas
development to corridors along ridgetop roads in the interest of “protecting watershed values and
wildlife habitat.” Ex. 10 at 3-4.
24
10,000 to 20,000 oil and gas wells in Garfield County over next 20 years). In effect, BLM
assumed that no new federal or private oil and gas development will take place in western
Colorado outside the Planning Area during the next 20 years. This assumption was contrary to
the record, and caused BLM to substantially underestimate the air pollution to which its Plan will
contribute. CEC Br. at 37-38, 42-43.
Defendants do not dispute that BLM failed to account for private and federal
development outside the Planning Area. Instead, they offer three excuses. First, BLM argues
that its choice of the “boundaries” for its cumulative air impacts analysis – which covered a large
area of western Colorado and eastern Utah – satisfied NEPA. BLM Br. at 35-36. This argument
misses the point, because Plaintiffs do not quibble with the geographic scope of BLM’s air
quality model. The problem, instead, is that BLM ignored the emissions from thousands of
reasonably foreseeable future oil and gas wells within the geographic area the agency chose to
analyze. CEC Br. at 42-43. Ignoring this reasonably foreseeable future development violated
NEPA, as well as BLM’s own guidance describing how cumulative impacts analysis should be
done for oil and gas development activities.
BLM guidance recognizes that a cumulative impacts analysis must cover the entire area
in which air quality impacts may occur, even when the impacts extend well beyond the
boundaries of the agency’s planning area. Ex. 34 at AR 16388-390. That analysis “should
consider not only effects based on [the oil and gas wells] associated with the proposed leasing
action . . . but must also consider effects from other RFFAs [reasonably foreseeable future
actions] . . . that are outside the planning area . . . .” Id. at AR 16389 (emphasis added). BLM’s
guidance specifies that reasonably foreseeable future actions “should include oil and gas
25
activities in or near the identified effects area . . .not directly related to the proposed action.” Id.
at AR 16378; see also 40 C.F.R. § 1508.7 (cumulative impacts to be considered in EIS include
those resulting from “reasonably foreseeable future actions regardless of what agency . . . or
person undertakes such actions”).
BLM’s choice of a broad modeling domain reflected its recognition that air quality
impacts may extend well outside the Planning Area. But the agency considered only a portion of
those air quality impacts because it ignored emissions from the future drilling that will occur
outside the Planning Area. See Ex. 1 at 4-3 (noting that 10,000-20,000 oil and gas wells
predicted in Garfield County over next 20 years); CEC Br. at 43 (noting other federal projects in
vicinity of Planning Area). NEPA required BLM to take that reasonably foreseeable future
activity into account when evaluating cumulative impacts. Ex. 34 at AR 16378; 40 C.F.R. §
1508.7. By ignoring it, BLM considered its Plan out of context, and greatly underestimated the
combined air pollution to which its Plan will contribute.
Second, BLM and the Companies assert that future drilling outside the Planning Area is
too speculative to evaluate, because “BLM has no control” over private oil and gas development.
This argument fails, because the governing standard is whether that drilling is “reasonably
foreseeable” – not whether it is subject to BLM’s control. 40 C.F.R. § 1508.7; Ex. 34 at AR
16378; see also Wilderness Workshop v. BLM, 531 F.3d 1220, 1228 n. 8 (10th Cir. 2008).
Private oil and gas development outside the Planning Area is reasonably foreseeable even if not
controlled by BLM. 17 Ex. 1 at 4-3 (10,000-20,000 wells predicted in Garfield County).
17
Much of that development, moreover, will occur on federal land and thus be subject to federal
control. CEC Br. at 43 (listing four examples of planned federal projects).
26
Moreover, BLM contradicts the record when it argues that private development is too
speculative to analyze. BLM did analyze future private development to the extent it will occur
within the Planning Area boundaries. Compare Ex. 1 at 4-11; Ex. 38 at 45342 (Table 3-11)
(analysis of future wells in Planning Area covers both private and federal land). There was no
reason the agency could not make similar estimates of such private development outside the
Planning Area boundaries.
Third, the Companies argue that the four specific federal oil and gas projects listed in
Plaintiffs’ Opening Brief need not be considered because “they are completely independent and
unrelated to the” Plan. Companies Br. at 53; cf. 40 C.F.R. § 1508.7. For this argument, the
Companies rely on cases that address the test for whether the NEPA analysis on one project must
be combined with speculative future projects in the same NEPA document. See Utahns for
Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152 (10th Cir. 2002) (later addition of lanes to
proposed highway); Airport Neighbors Alliance v. United States, 90 F.3d 426 (10th Cir. 1996)
(different construction projects at an airport).
The line of cases cited by the Companies does not address the question presented here:
whether the cumulative impacts analysis for the FEIS must account for the fact that some oil and
gas development will continue in western Colorado outside the Planning Area. Under Tenth
Circuit law, an EIS is required to consider as cumulative effects the proposal’s impact when
combined with other “reasonably foreseeable future actions.” Wilderness Workshop, 531 F.3d at
1228 n. 8 (10th Cir. 2008), quoting 40 C.F.R. § 1508.7; see also SUWA v. Norton, 277 F. Supp.
2d 1169, 1187 (D. Utah 2003), order vacated as moot by 2004 WL 2827894 (D.Utah Nov 30,
27
2004) (scope of EIS is distinct from Airport Neighbors standard for considering multiple projects
in single EIS).
Plaintiffs do not argue that NEPA required BLM to combine its Plan in a single EIS with
any of the four specific projects listed in the Opening Brief. Those four projects just provide
examples showing it is reasonably foreseeable that “thousands of wells [ ] will be drilled [outside
the Planning Area] as part of other federally-approved projects in Colorado and Wyoming. . . .”
CEC Br. at 43. In meeting its obligation under NEPA to analyze the “incremental impact of the
[Plan on air quality] when added to other past, present and reasonably foreseeable future actions”
by other agencies or persons, Wilderness Workshop, 531 F.3d at 1228 n. 8; 40 C.F.R. § 1508.7,
BLM could not pretend that gas development will completely stop everywhere else in western
Colorado. Rather, BLM must account for the continued drilling of new wells outside the
Planning Area boundary. The FEIS demonstrates that such continued development is reasonably
foreseeable, and BLM’s own guidance requires that such actions be considered in the cumulative
impacts analysis.
V.
BLM VIOLATED NEPA BY FAILING TO ANALYZE OZONE.
NEPA “places upon an agency the obligation to consider every significant aspect of the
environmental impact of a proposed action.” Baltimore Gas and Lamp, Elec. Co. v. Natural
Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) (internal quotation omitted). Ozone, a
pollutant formed when volatile organic compounds (“VOCs”) and nitrogen oxides (“NOx”) react
in the atmosphere, is a major aspect of the air quality impacts from oil and gas development.
Ozone causes a variety of adverse health effects and can even cause premature death. CEC Br.
at 45. BLM, however, refused to consider the ozone pollution that will result from its Plan.
28
The Environmental Protection Agency (“EPA”) and Colorado’s air quality regulators
have recognized that natural gas development causes serious ozone pollution in Colorado. For
example, Colorado’s Air Pollution Control Division estimates that oil and gas development is the
largest source of ozone-generating VOCs in the state, and predicts that in 2010 it could produce
more VOCs than all other sources combined. CEC Br. at 45-46; Ex. 41 at 2-3. Metropolitan
Denver violates the national ambient air quality standard (“NAAQS”) for ozone, which is set at
75 parts per billion (“ppb”), due in part to oil and gas development in northeastern Colorado.
CEC Br. at 45. And in Garfield County, Colorado (where the Roan Plateau is located), ozone
levels of 74-75 ppb were reported in 2007 and 2008. CEC Br. at 46.
In the past few months, two courts have recognized that the very same air quality analysis
challenged in this case violated NEPA because of its failure to analyze ozone. In Southern Utah
Wilderness Alliance [SUWA] v. Allred, No. 08-2187-RMU (D.D.C. Jan. 17, 2009), BLM had
supported RMP and lease sale decisions in Utah with a NEPA analysis that relied on the same air
quality modeling report challenged in this case. Ex. 65, SUWA Motion for Temporary
Restraining Order and Preliminary Injunction at 13 (Dec. 22, 2008), SUWA v. Allred, No. 08CV-02187-RMU (D.D.C.). The Court found that for purposes of injunctive relief, the plaintiffs
had shown a likelihood of success on the merits of their NEPA claims because of BLM’s failure
to address ozone pollution. The court held that “BLM cannot rely on EISs that lack . . . ozone
level statistics . . . .” SUWA v. Allred, No. 08-2187-RMU at 3 (D.D.C. January 17, 2009) (order
granting preliminary injunction), attached as Ex. 64.
In the second case, SUWA v. Kempthorne, No. 08-0411-LFO (D.D.C. Dec. 1, 2008), the
court rejected BLM’s argument that “any examination of the cumulative impacts of ozone would
29
be too costly and time-consuming,” and remanded the decision to the agency with directions that
it prepare a new NEPA assessment addressing ozone impacts “or providing a reasoned
explanation for its decision not to analyze those impacts.” Ex. 48 at 1-2; see CEC Br. at 42 n.
18; Ex. 49 at 28. This Court should follow the District of Columbia cases and reject BLM’s
excuses for failing to consider ozone.
A.
BLM Did Not Analyze The Ozone Pollution Resulting from its Plan.
BLM contends incorrectly that it “examined ozone impacts in the FEIS and concluded
that they would be minor.” BLM Br. at 39. The FEIS contains no such analysis, nor can it be
found anywhere else in the administrative record. The record shows instead that BLM
summarily dismissed repeated requests by state and federal air regulators, and the Colorado
Environmental Coalition, for an analysis of ozone. CEC Br. at 47-48.
BLM supports its argument by claiming to have determined, based on anticipated
nitrogen oxide emissions, that no ozone would result from activities under the Plan. BLM Br. at
41. The administrative record does not back up this claim. Early in the process, EPA and state
air agencies raised concerns about ozone in 2002. BLM’s consultants responded that their air
analysis report would address ozone (although not model for it) and that ozone impacts “would
be addressed in a separate effort from this modeling analysis if necessary.” BLM Ex. 24 (Dkt. #
92) at AR 51969. BLM never followed through on this promise. As a result, when ozone was
ignored in the draft EIS, EPA and other agencies repeated their requests that BLM consider
ozone. In dismissing those requests, BLM made no mention of any such ozone analysis. For
example, in response to EPA’s comments, BLM claimed only that ozone modeling was
“impractical,” and refused to use an alternative screening method that would identify ozone
30
levels of concern. Ex. 1 at 6-37. BLM current arguments in this Court are impossible to square
with the agency’s earlier statements that an ozone analysis was impractical.
Moreover, BLM and the Companies offer no citations to any such analysis in the
administrative record. Instead, they cite only conclusory statements by BLM that were offered
when the agency denied Plaintiffs’ administrative protests. See AR 41314 (Dkt. # 85.5) (denial
of administrative protest of leases); AR 53001-002 (Dkt. # 85.7) (denial of administrative protest
of plan); BLM Ex. 34 at AR 53379 (Dkt. # 92.27) (denial of air quality-related administrative
protest of plan). These statements about the air analysis are not in the air analysis itself.
The administrative record does not support these post hoc claims that the Plan would not
result in significant ozone formation. Neither the FEIS nor the underlying technical support
document contains any discussion of ozone formation, or comparison of the VOC and NOx
emissions that cause ozone, to support these statements. 18 Such after-the-fact, conclusory
assertions cannot support the agency’s decision. See Motor Vehicle Mfr. Ass’n, 463 U.S. at 43
(conclusion arbitrary and capricious where it “runs counter to the evidence before the agency”);
Wisely, 524 F. Supp. 2d at 1311-12 (rejecting conclusory assertion in final NEPA document that
directional drilling was infeasible, where assertion was not supported by evidence in
administrative record).
18
The Companies point to BLM’s conclusion that the NAAQS for one ozone precursor, nitrogen
dioxide, would not be exceeded as a result of its Plan. They imply that this conclusion itself also
established that no ozone will be formed. Companies Br. at 72-73. This is incorrect. As the
Companies acknowledge elsewhere, Companies Br. at 64, ozone production depends on several
factors. It is a function of the emissions of both NOx and VOCs, and does not bear a simple
linear relationship to either precursor. See Ex. 40 at 37912-913.
31
BLM next asserts that no ozone analysis was needed, because the Roan Plateau Planning
Area had not yet slipped into violation of the NAAQS for that pollutant. BLM Br. at 39-40. 19
No case law or precedent supports this argument. NEPA requires informed decision making
precisely so that agencies can anticipate and avoid future environmental harms. See Robertson,
490 U.S. at 348-352 (discussing avoidance and mitigation of unnecessary adverse impacts). That
purpose would be thwarted if agencies defer taking a hard look at air quality until after it
deteriorates to the point of violating the NAAQS.
In any case, the document cited by BLM for this argument actually demonstrates that
ozone was a concern. BLM quotes a 2003 letter from its air consultants stating that ozone levels
in Utah and Colorado “are still beneath the” NAAQS. BLM Br. at 40. The letter also states – in
a passage BLM omits – that “[t]he [National Park Service] is concerned about the rising ozone
concentrations in the national parks during the last decade.” The letter goes on to promise that
“[o]zone impacts will be addressed in a separate effort from this modeling analysis, if
necessary.” BLM Ex. 24 (Dkt. # 92.25) at AR 51969. Far from supporting BLM’s position, the
letter shows that ozone was already a significant concern.
The Companies also assert incorrectly that the State of Colorado views ozone as an
insignificant issue in western Colorado. Companies Br. at 74. The only support offered for the
Companies’ argument is a recent State report requesting that the region be designated as
currently in attainment of the 75 ppb NAAQS. Colorado’s report offers no predictions about
19
BLM suggests the recently-tightened 75 ppb NAAQS, adopted in March 2008, was not
relevant to BLM’s 2007 Plan for the Roan. BLM Br. at 39 n. 16. This is wrong. The 75 ppb
NAAQS was adopted several months before BLM’s September 2008 issuance of the leases
challenged in this case. CEC Br. at 46 n. 21. Furthermore, the agency was well aware before it
finalized the June 2007 and March 2008 records of decision that the standard was likely to be
lowered and would apply to development under its Plan. Ex. 40 at AR 37909-910.
32
how future air quality in western Colorado will be affected by natural gas development. Nor
does the report suggest that natural gas-related ozone pollution is an insignificant issue there.
Colo. Dep’t of Pub. Health & Env’t, State of Colorado, Technical Support Document for
Recommended 8-Hour Ozone Designations at 64-70 (Mar. 9, 2009) (“March 2009 Report”). 20
Contrary to the Companies’ argument, the State views ozone as an important air quality
issue in western Colorado. The State recently installed new ozone monitors in Rifle and Palisade
because they were “areas where ozone is a concern.” Colorado Air Quality Control Commission:
Report to the Public 2007-2008 at 11. 21 The State also reports that Garfield County, where the
Roan is located, has the highest levels of ozone precursor emissions in the state outside of the
Front Range. March 2009 Report at 69. Monitoring in the Roan Plateau area, moreover, has
recorded spikes in ozone levels that approach or exceed the 75 ppb NAAQS. Ex. 43.
Finally, Defendants assert that no analysis of ozone is necessary because it can be
addressed in greater detail at the APD stage after the leases have been issued. Companies Br. at
69-70. As discussed above, pp. 4-5, supra, this argument ignores controlling Tenth Circuit
precedent and BLM’s own planning guidance, which require BLM to analyze the reasonably
foreseeable impacts of its decisions under NEPA before making “an irreversible commitment” of
resources. Pennaco Energy, 377 F.3d at 1160; Ex. 19 at AR 964 (BLM handbook). That
irreversible commitment occurred when BLM issued the leases in this case. Pennaco Energy,
20
Available at http://www.cdphe.state.co.us/ap/ozone/OZDesignations.pdf (last viewed April 19,
2009).
21
Available at http://www.cdphe.state.co.us/ap/down/RTTP07-08web.pdf (last viewed April 19,
2009).
33
377 F.3d at 1160. 22 BLM cannot wait until the last possible moment to consider this important
impact.
Ozone pollution is just as foreseeable at the leasing stage as the other pollutant emissions
(such as particulate matter and NOx) that BLM did analyze. As with those other pollutants,
BLM was entirely capable of making reasonable predictions about development in order to
estimate the likely ozone pollution that will result from its Plan. Indeed, BLM has done just that
to assess ozone from other large projects in Wyoming. CEC Br. at 48. While the Companies
argue that the Wyoming examples involved “projects” rather than leasing decisions, Companies
Br. at 69-70, that is a distinction without a difference. There was no reason why a similar
analysis could not have been done on the Roan. See Southern Utah Wilderness Alliance v.
Allred, No. 08-2187-RMU (D.D.C.), January 17, 2009 Memorandum Order at 3, attached as Ex.
64 (rejecting failure to analyze ozone in connection with Utah RMP and leasing decisions).
Instead, the agency violated NEPA by disregarding this important aspect of the air pollution that
is reasonably foreseeable under its Plan.
22
The cases Defendants cite do not support their position that no analysis of ozone was
necessary. In San Juan Citizens Alliance v. Norton, 586 F. Supp. 2d 1270, 1290 (D.N.M. 2008),
BLM did address ozone in its EIS, but without modeling it. Similarly, Border Power Plant
Working Group v. Dep’t of Energy, 260 F. Supp. 2d 997, 1021-22 (S.D. Calif. 2003), addressed
a challenge to the agency’s methodology in predicting ozone impacts – not a failure to consider
those impacts at all. TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) involved an
environmental assessment for an Indian casino, and the court upheld the agency’s determination
that the casino would not have significant air quality impacts for any pollutant. The Interior
Department in TOMAC did not ignore a pollutant that presented an important environmental
impact, as BLM did in this case.
34
B.
BLM Arbitrarily Refused To Use Readily-Available Techniques To Evaluate
The Plan’s Ozone Impacts.
When BLM was preparing the FEIS, as least two techniques were readily available for
evaluating the ozone impacts from its Plan: (a) computer modeling, and (b) ozone screening
tables (known as the “Scheffe method”) that use different VOC and NOx emissions figures to
determine whether additional, more detailed analysis may be needed. CEC Br. at 47-48. Despite
repeated requests by EPA and state air agencies to use at least one of these approaches, BLM
refused to do any analysis of ozone.
A court “may properly be skeptical as to whether an EIS’s conclusions have a substantial
basis in fact if the responsible agency has apparently ignored the conflicting views of other
agencies having pertinent expertise.” Davis v. Mineta, 302 F.3d at 1123. BLM’s refusal to
analyze ozone should receive little deference, because – in contrast to EPA and state regulatory
agencies – air quality is not a topic “within [BLM’s] area of expertise.” Utah Env. Congress v.
Russell, 518 F.3d 817, 824 (10th Cir. 2008); cf. Greater Yellowstone Coal. v. Flowers, 359 F.3d
1257, 1271 n. 14 (10th Cir. 2004) (recognizing Army Corps of Engineers’ expertise regarding
floodplain impacts). Congress expressly directed EPA – not BLM – to develop regulations
addressing the “air quality model or models to be used under specified sets of conditions” for
purposes of the Clean Air Act. 42 U.S.C. § 7475(e)(3)(D); see also id. § 7620; 70 Fed. Reg.
68218 (Nov. 9, 2005).
BLM arbitrarily disregarded the comments by EPA and other expert agencies. First,
BLM excuses its failure to model for ozone by claiming that computer modeling was
“impractical,” and emphasizing that EPA never “insisted” on such modeling. BLM Br. at 40.
This argument misses the point of EPA’s comments, which urged BLM to address in some
35
manner the ozone pollution resulting from its decisions – at least through non-computerized tools
such as screening tables. 23 EPA stressed that an ozone analysis was necessary because “the
additional development proposed in the DEIS” may “significantly” increase emissions of the
VOCs and NOx that produce ozone. Ex. 1 at 6-37 (emphasis added). While EPA did not
“insist” on computer modeling, it did insist of some analysis of ozone. BLM disregarded EPA’s
expert advice, as well as repeated requests by other agencies with air quality expertise, such as
23
Moreover, EPA was far too generous in not challenging BLM’s refusal to use a computer
model to evaluate ozone impacts. BLM plainly did have the ability to run such a model for its
Plan. At the same time BLM claimed that ozone modeling was impractical, EPA was issuing
guidance describing how it should be done. 70 Fed. Reg. at 68234 (recommending use of
photochemical grid models); see also Ex. 40 at 37915-916 (same, and noting that computer
models had been available for decades). BLM also modeled ozone for an oil and gas project in
the Pinedale, Wyoming area at the same time that it claimed it was impractical to do so on the
Roan. CEC Br. at 48 n. 22.
BLM and the Companies also are wrong in suggesting that an absence of estimates of
ozone precursor emissions from oil and gas development (known as emissions inventories) made
ozone modeling impractical. BLM Br. at 43; Companies Br. at 66. BLM prepared such
inventories for other pollutants such as NOx as part of its analysis for the Plan. (Dkt. # 85.6 at
AR 45329). It would have been entirely practical for BLM to prepare similar estimates of the
VOC emissions resulting from its Plan. Since at least 1999, EPA has published
recommendations for estimating VOC emissions from oil and gas operations. Preferred and
Alternative Methods for Estimating Air Emissions from Oil and Gas Field Production and
Processing Operations chap. 10 (Sept. 1999), available at
http://www.epa.gov/ttnchie1/eiip/techreport/volume02/ii10.pdf at 10.4-1 to 10.4-29 (last viewed
April 19, 2009).
36
Colorado and Utah state regulators, and the National Park Service. 24 CEC Br. at 47; BLM Ex.
24 at AR 51969 (Dkt. # 92.25).
BLM also dismissed EPA’s advice that it use a screening method, arguing that screening
was “too conservative to provide results of any real value.” Ex. 1 at 6-37; BLM Br. at 42-43.
BLM did not explain what it meant by “too conservative,” or why such a conservative approach
was inappropriate. Moreover, BLM’s position is undercut by its use elsewhere of the same
screening technique it rejected for the Roan. CEC Br. at 48. Indeed, BLM has defended the
screening method against challenges that computer modeling should be used as a more accurate
method of analyzing ozone. See Wyoming Outdoor Council, 176 IBLA 15, 19 and 33 (2008)
(upholding Scheffe method as “conservative screening tool”); Theodore Roosevelt Conservation
Partnership v. Salazar, Slip Copy, __ F.Supp.2d __, 2009 WL 855969, *4 (D.D.C. Mar. 31,
2009), attached as Ex. 64 (upholding use of the Scheffe method because in 2005 BLM and other
agencies considered it to be “a reasonable tool and an acceptable ozone estimation method”).
BLM offers no explanation for why the ozone issues on the Roan were so different that a
complete lack of information was preferable to a “conservative” estimate of the pollutant.
In effect, BLM attempts to use a double standard to avoid any analysis of ozone. The
agency asks that the Court accept its rejection of computer modeling as impractical, an argument
24
The Companies are wrong to assert that no ozone analysis is needed because state and federal
air quality regulations, and BLM mitigation measures, will affect emissions of the VOCs and
NOx that form ozone. Companies Br. at 73-74. The same agencies that promulgated those
regulations repeatedly requested an analysis of ozone. See pp. 30, 36 supra. The potential for
regulations to mitigate the impacts of ozone pollution should affect the contours of BLM’s
analysis, but does not excuse BLM from doing any analysis at all.
Regulation and mitigation may reduce the Plan’s impacts – but without any analysis,
BLM cannot know what those impacts may be in the first place. See Montana Wilderness
Association, 310 F. Supp. 2d at 1145.
37
that relies on the Scheffe method as a reasonable alternative tool. But BLM also wants to reject
the Scheffe screening method as outdated and “too conservative” to be useful, which is true only
when comparing it to the more accurate computer models that are available. BLM cannot rely
on such a transparent double standard to avoid analyzing ozone. Whether through screening
tables or computer modeling, BLM had tools available throughout its decision making process to
analyze the ozone pollution from its Plan. An agency has discretion in choosing its method of
analysis, but its choice must be reasonable. Hughes River Watershed Conservancy v. Johnson,
165 F.3d 283, 289 (4th Cir. 1999). NEPA required the agency to take a hard look at ozone
impacts, and it failed to do so here.
VI.
BLM VIOLATED FLPMA BY FAILING TO ENSURE COMPLIANCE WITH
AIR QUALITY STANDARDS.
BLM’s refusal to address ozone violated FLPMA, as well as NEPA. FLPMA requires
that all land use plans, such as the one challenged in this case, “provide for compliance with
applicable pollution control laws, including State and Federal air . . . pollution standards or
implementation plans.” 43 U.S.C. § 1712(c)(8). BLM regulations also direct that land use
authorizations “require compliance with air . . . quality standards established pursuant to
applicable Federal or State law.” 43 C.F.R. § 2920.7(b)(3). 25 BLM violated these laws by
failing to ensure – or even analyze – the Plan’s compliance with the NAAQS for ozone.
25
BLM does not join the Companies’ argument that this regulation is inapplicable to the leases.
Rather, the agency notes that “compliance with air quality standards is required in all steps of the
development process.” BLM Br. at 43 n. 18. Whether as a direct requirement under 43 C.F.R. §
2920.7, or as part of the RMP mandate to do so, see 43 U.S.C. § 1712(c)(8); 43 C.F.R. § 1610.53(a), BLM was obligated to ensure that the leases comply with air quality standards.
38
A.
Plaintiffs’ FLPMA Claims are Ripe.
The Companies contend that Plaintiffs’ FLPMA claims are not ripe under Ohio Forestry
Assoc. v. Sierra Club, 523 U.S. 726 (1998). Companies Br. at 76-78. This argument fails.
In deciding whether a case is ripe for judicial review, courts consider two issues: (a) the
“fitness of the particular issues for judicial decision,” and (b) the “hardship to the parties of
withholding review.” Ohio Forestry, 523 U.S. at 733; see also Park Lake Resources LLC v. U.S.
Dep’t of Agric., 197 F.3d 448, 450 (10th Cir. 1999). The Ohio Forestry case concluded under
this test that a challenge to the adoption of a national forest plan was not ripe because no actions
implementing that plan had been proposed. Ohio Forestry, 523 U.S. at 729-733.
The Companies ignore a key difference between this case and Ohio Forestry: here, BLM
has already begun implementing its RMP amendments by auctioning leases for the Roan Plateau.
In contrast, Ohio Forestry (and similar cases such as San Juan Citizens Alliance, 586 F. Supp. 2d
at 1295-96 and N. Plains Res. Council v. BLM, 2005 U.S. Dist. LEXIS 4678 at * 42 (D. Mont.
2005), attached as Ex. 64), involved pre-implementation challenges to land management plans.
Those cases recognized that prior to implementation, such plans “create no legal rights or
obligations.” Ohio Forestry, 523 U.S. at 733; San Juan Citizens Alliance, 586 F. Supp. at 1296.
But BLM’s issuance of leases creates legal rights held by the Companies. As a result,
Plaintiffs’ FLPMA claims challenging the RMP (Complaint Claim 5) and the agency’s leasing
decision (Complaint Claim 8) (Dkt. # 1), both are ripe for review. Courts have recognized that
FLPMA and similar legal challenges ripen when BLM attempts to issue leases. See, e.g., New
Mexico ex rel. Richardson, 459 F. Supp. 2d at 1119-20 (ruling on FLPMA claims in challenge to
RMP where lease had been auctioned); see also State of Utah v. Dep’t of Interior, 535 F.3d 1184,
39
1196-97 (10th Cir. 2008) (indicating that FLPMA claims challenging settlement agreement
would become ripe when “land management changes” are made implementing settlement); The
Wilderness Society v. Thomas, 188 F.3d 1130, 1134 (9th Cir. 1999) (NFMA challenge to forest
plan ripe where it had been implemented by issuing grazing allotment plans).
This case also satisfies the two-factor test for ripeness. First, the issues in Plaintiffs’
FLPMA claims are fit for resolution by this Court. Compliance with the NAAQS and the Clean
Air Act’s Prevention of Significant Deterioration (“PSD”) increment requirement, CEC Br. at
51-53; p. 42, infra, are Plan-wide concerns that cannot realistically be addressed on a well-bywell basis at the APD stage. The threats to air quality standards arise from the combined
emissions of all sources associated with development of the Roan, rather than from any
individual source. Evaluating the Plan’s compliance with the NAAQS, and PSD increments,
requires consideration of all the wells authorized as part of the Plan. See p. 33, supra; p. 41,
infra. Attempting to address Plaintiffs’ FLPMA claim at the APD stage will be virtually
impossible, and these issues will not become more ripe if they are deferred.
Withholding judicial review also will cause a hardship to Plaintiffs because BLM’s
issuance of leases creates legal rights for development of the Plateau. See Sierra Club v. Dep’t
of Energy, 287 F.3d 1256, 1264-65 (10th Cir. 2002) (NEPA challenge ripe when agency issued
easement), cited in State of Utah, 535 F.3d at 1197-98. If BLM later realizes that the Plan will
cause western Colorado to violate the ozone NAAQS or PSD standards, it will be too late to
reverse course and leave the Roan undeveloped. Plaintiffs’ FLPMA claims are ripe for review,
because BLM has begun implementing its Plan by issuing leases for oil and gas development.
40
B.
BLM Violated FLPMA by Failing to Provide For Compliance with Air
Quality Standards.
On the merits of the FLPMA claim, BLM and the Companies claim to have “provided for
compliance” with air quality standards by promising that individual well approvals at the APD
stage will comply with state permitting regulations. Companies Br. at 79-80; BLM Br. at 43 n.
18. BLM’s obligation under FLPMA, however, attaches directly to the RMP amendment itself –
not to subsequent well approvals. See 43 U.S.C. § 1712(c)(8) (including compliance with air
quality standards as part of the requirements for “development and revision of land use plans”).
FLPMA imposes this requirement at the Plan level in order to ensure that broadly-applicable
issues such as the NAAQS and PSD increments are addressed at the appropriate stage and scope.
As noted elsewhere, ensuring that the Plan complies with these standards cannot realistically be
accomplished only on a well-by-well basis at the APD stage. See 33, supra; p. 42, infra.
FLPMA, moreover, requires compliance with “air quality . . . standards” – not just
permitting regulations and similar laws. If Congress intended BLM merely to require
compliance with permitting laws, it could have said so. The statute is drawn more broadly to
address both air quality standards, like the ozone NAAQS, and other “laws.” CEC Br. at 51;
Walters v. Metropolitan Educ. Enterps., Inc., 519 U.S. 202, 209 (1997) (statutes must be
interpreted to give each word operative effect).
Finally, the Companies contend that requiring BLM to ensure compliance with the
NAAQS and PSD increments would somehow “usurp” the permitting authority of EPA and the
states. Companies Br. at 80. This argument makes little sense. Complying with BLM’s
obligations under FLPMA will support – rather than undercut – efforts by EPA and states to
implement air quality standards. By providing for compliance with these standards in the Plan,
41
BLM avoids the approval of numerous small emissions sources that will make it more difficult
for Colorado to maintain compliance with the ozone NAAQS, and PSD increments. Indeed,
EPA seems unconcerned about any usurpation of Clean Air Act authority – it argued that air
regulatory agencies may not “have any more or better resources than will be used by BLM . . .
for [the PSD increment] analysis,” and urged BLM to “make a reasonable first stab” at the
analysis. Ex. 44 at AR 51964.
VII.
BLM’S MISLEADING DISCUSSION OF PSD INCREMENTS OBSCURED THE
AIR QUALITY DEGRADATION CAUSED BY ITS PLAN.
An EIS must “provide [a] full and fair discussion of significant impacts” associated with
a federal decision and state how decisions based on the EIS will or will not comply with
environmental laws and policies. 40 C.F.R §§ 1502.1, 1502.2(d). BLM violated NEPA by
stating repeatedly in its FEIS that Plan-related emissions would comply with the Clean Air Act’s
prevention of significant deterioration (“PSD”) program when in fact the agency ignored many
of the emissions it was required to consider. The PSD program limits pollution in areas with
clean air to a maximum allowable increase, known as PSD increments. CEC Br. at 52. The term
“PSD increment” has a clear regulatory meaning: the increments are applied by measuring all
emissions sources that commence operations after a specific baseline date. That baseline date is
set by Clean Air Act regulations, and in western Colorado is 1977 or 1989, depending on the
pollutant. CEC Br. at 52-53.
While repeatedly claiming that the Plan would not result in an increment exceedence,
BLM used an incorrect baseline date in evaluating compliance with the PSD increments. Instead
of considering all emissions sources operating since 1977 or 1989, the agency invented a
different baseline of 2000 or 2001. This meant BLM ignored 11-24 years of emissions sources
42
when measuring compliance with the increment. CEC Br. at 51-54. EPA, in fact, condemned
BLM’s approach as “misleading.” Ex. 44 at AR 51962.
BLM does not attempt to defend its analysis as accurately assessing compliance with the
PSD increment requirement. Instead, the agency claims that it did not actually mean “PSD
increment” when it repeatedly used that term. According to this argument, BLM only sought “to
determine ‘thresholds of significance’ or ‘levels of concern’” – not compliance with the
applicable PSD increments. BLM Br. at 46.
BLM’s argument conflicts with the plain language of its FEIS and illustrates why its
analysis was so misleading. The FEIS’s discussion of air quality impacts does not discuss
“thresholds of significance” or “levels of concern” – it repeatedly draws conclusions about
compliance with the PSD increments. For example:
•
BLM assured the public that its air quality modeling found no “predicted potential
concentrations [ ] that could exceed the Class I or Class II increments.” Ex. 1 at 4-33.
•
The FEIS claims that cumulative impacts modeling “results were used to . . . determine if
PSD Class I increments and NAAQS might be exceeded . . . . Concentrations were also
predicted . . . to determine compliance with the NAAQS and Class II increments.” Ex. 1
at 4-34.
•
The agency asserted that “[p]redicted potential concentrations [of pollutants] were also
compared to the applicable Class I and Class II PSD increments. No modeled
concentrations exceeded any PSD increment for any criteria pollutant.” Ex. 1 at 4-35.
Because BLM never actually analyzed those increments, the agency’s conclusions – and
representations to the public – were arbitrary and capricious. Motor Vehicle Mfr. Ass’n, 463
U.S. at 43.
43
BLM’s claim to address some other “threshold of concern” 26 rings especially hollow
because the agency never explained what was being measured other than the Clean Air Act PSD
increment. The technical support document underlying the FEIS’s air quality discussion, in fact,
demonstrates that there was no separate “threshold of concern.” In that technical support
document, the PSD increment was the only benchmark BLM used for its comparison. The
document describes the regulatory PSD increments for different pollutants and compares them to
its incomplete emissions figures. But the technical support document does no other comparison
and offers no explanation for why its made-up measurement is relevant to anything other than
the Clean Air Act PSD increment. AR 45376-377 (Dkt. # 85.6). The technical support
document demonstrates that BLM did not measure some different “threshold of concern” – it just
misapplied the PSD increments in a way that obscured the likelihood that the increments would
be exceeded. See Johnston v. Davis, 698 F.2d 1088, 1094 (10th Cir. 1983) (EIS violated NEPA
by using discount rate “in a manner that misleads the reader of the EIS” about the Project’s true
economic value).
BLM and the Companies also excuse BLM’s misleading analysis by arguing that a PSD
increment analysis was unnecessary. BLM Br. at 45-47; Companies Br. at 59-63. Defendants
claim that no accurate discussion of PSD increments was required in the FEIS because the Clean
Air Act (and the State of Colorado air permitting regulations) did not require an increment
analysis as part of approving the Plan. Defendants’ theory has little credibility, given BLM’s
extensive discussion of PSD increments and its repeated assurances of compliance with them. If
26
For example, BLM buried a one-sentence disclaimer to this effect in a different section of the
FEIS from its conclusions regarding PSD increments. That disclaimer stated that, despite
BLM’s repeated assurances of compliance with “PSD increments”, the FEIS actually was not
referring to Clean Air Act PSD increments. See Ex. 57 at 3-21.
44
the PSD increment was as irrelevant as Defendants now claim, it is unclear why BLM devoted so
much attention to it in the NEPA analysis. See p. 43, supra.
In any event, the argument fails because Plaintiffs bring claims under NEPA and FLPMA
– not under the Clean Air Act. NEPA’s requirement to explain how the Plan decision “will or
will not achieve the requirements of . . . environmental laws and policies,” 40 C.F.R § 1502.2(d),
is distinct from any permitting obligations imposed by the Clean Air Act. See Conservation Law
Foundation v. Dep’t of Air Force, 864 F. Supp. 265, 284-85 (D.N.H. 1994), reversed in part on
other grounds, 79 F.3d 1250 (1st Cir. 1996) (EIS violated NEPA by failing to analyze whether
agency action conformed with Clean Air Act implementation plan, despite compliance with
substantive Clean Air Act mandates). “The decision whether to prepare a NEPA analysis does
not depend on whether the proposed action will [violate some other law]; if it did, federal
agencies would have to consider the environmental consequences of their actions only if the
action was prohibited by federal law.” United States v. City of Detroit, 329 F.3d 515, 530 n. 2
(6th Cir. 2003) (Moore, J., concurring). NEPA requires consideration of the PSD increment so
that BLM can make an informed decision about the air quality impacts of its Plan – not merely as
an enforcement mechanism for the Clean Air Act.
BLM’s uninformed decision has real consequences for the environment because the
missing analysis will not be provided as part of EPA and Colorado air quality permitting. CEC
Br. at 49-51; Ex. 57, FEIS at 3-21. If a PSD increment analysis is not done now, emissions
sources on the Roan will escape any such review at all. As the Companies acknowledge, “it is
likely that only minor stationary sources – not major emitting facilities – will be associated with
oil and gas development in the Planning Area.” Companies Br. at 62. Those minor sources will
45
not be subject to the PSD increment analysis because in Colorado, this analysis is required only
for major source permitting. 40 C.F.R. § 52.21(a)(2); CDPHE, Colorado Modeling Guideline for
Air Quality Permits (Dec. 27, 2005) at 17, available at
www.colorado.gov/airquality/permits/guide.pdf (last viewed April 19, 2009); Ex. 44 at AR
51964 (EPA comments). Thus, the Companies will be allowed to construct and operate
numerous small emissions sources while effectively escaping any review of their impact on the
PSD increment.
Allowing BLM to ignore the Plan’s impact on PSD increments also will undercut the
efforts of Colorado and EPA to protect clean air. While the small emissions sources operated by
the Companies will not be subject to a PSD increment review when they obtain state air pollution
permits, those sources nonetheless consume the applicable PSD increments and degrade air
quality. CEC Br. at 52-53. EPA, in fact, observed that Plan-related emissions may result in a
violation of the PSD increment for particulate matter. Ex. 56 at 12342. Such air quality
degradation could force Colorado to revise its state plan for assuring compliance with the
particulate matter NAAQS. Moreover, if the Companies consume the particulate matter
increment, it limits the ability of other businesses to obtain permits to emit that pollutant. CEC
Br. at 54. Even if the Companies and BLM will not bear these burdens, the air quality
degradation they may cause represents an important impact that NEPA required BLM to
46
consider. See 40 C.F.R. § 1502.2(d); City of Detroit, 329 F.3d at 530 n. 2. 27
VIII. THE PUBLIC DOCUMENTS AND DEMONSTRATIVE EXHIBITS OFFERED
BY CEC ARE PROPERLY THE SUBJECT OF JUDICIAL NOTICE.
BLM asks the Court to ignore materials directly relevant to the central issues in this case
that meet the standards for judicial notice. BLM’s effort to exclude every extra-record document
offered by Plaintiffs ignores the plain language of Federal Rule of Evidence 201, Constitutional
standing requirements, and case law permitting judicial notice. BLM’s Motion to Strike (Dkt. #
68) should be denied and Plaintiffs’ Motion for Judicial Notice (Dkt. # 67) granted. 28
A.
Courts May Take Judicial Notice in Administrative Record Review Cases.
BLM argues that the Court may not take judicial notice in an Administrative Procedure
Act (“APA”) case. BLM’s Response to Motion for Judicial Notice and Memorandum in Support
of Motion to Strike (Dkt. # 68-2) at 7 (“BLM Mot. to Strike”). This is plainly untrue in the
Tenth Circuit. See Pueblo of Sandia v. United States, 50 F.3d 856, 861 n.6 (10th Cir. 1995);
27
BLM also failed to analyze the Plan’s impacts to visibility at Rocky Mountain National Park.
Defendants acknowledge that the Park was not addressed by BLM’s air analysis, despite being
within the geographic modeling domain used by the agency. BLM Br. at 37 n.15. Instead, BLM
asserts that its analysis of impacts to the Rawah Wilderness Area was an adequate substitute. Id.
But the air quality situation at Rocky Mountain National Park is substantially different, with
serious ozone, visibility, and nitrogen deposition problems. While BLM’s analysis showed that
Rawah might experience some air quality impacts, see Ex. 38 at AR 50238, it did not consider
how those impacts would affect the already-impaired conditions at the Park. Given the ongoing
and growing concerns about air quality in Rocky Mountain National Park, the Plan’s impacts
should have been taken into account.
28
BLM accuses CEC of improperly citing to the Complaint for a number of facts. BLM Mot. to
Strike at 6 n. 3. The Motion neglects to mention that these citations refer both to the Complaint
and BLM’s Answer where the allegations were not disputed. See, e.g., CEC Br. at 8. BLM does
not explain why it believes it is improper for CEC to refer to undisputed facts in the pleadings;
reference to a complaint and an answer admitting the allegation is a longstanding method of
establishing uncontested facts. See, e.g., Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.
724, 734 (1985) (citing to an admission in an answer to establish uncontested facts); see also
Fed.R.Civ.P. 8(b) (describing admissions to a complaint).
47
Cruz-Funez v. Gonzales, 406 F.3d 1187, 1189 n.2 (10th Cir. 2005) (taking judicial notice in a
record review case). “The doctrine of judicial notice is broadly construed in the Tenth Circuit.”
In re Telluride Income Growth LP, 364 B.R. 407, 414 (10th Cir. BAP 2007). The cases cited by
BLM in its Motion to Strike, BLM Mot. to Strike at 7-8, are from courts outside the Tenth
Circuit and, in fact, do not broadly bar judicial notice in APA cases. See Murakami v. United
States, 46 Fed. Cl. 731, 739-40 (Ct. Cl. 2000) (ruling that particular statements recalling
historical conditions in World War II internment camps were not subject to judicial notice under
Rule 201); Baker v. Barnhart, 457 F.3d 882, 891 (8th Cir. 2006) (trial court erred in taking
judicial notice on sua sponte basis for purposes of rebutting medical testimony in social security
appeal).
B.
The Materials in Plaintiffs’ Opening Brief Meet the Standards for Judicial
Notice.
Courts may take notice of both adjudicative facts and non-adjudicative facts, including
legislative facts. Judicial notice is used to provide background information and for facts
concerning the immediate parties. Advisory Committee’s Notes to Fed. R. Evid. 201(a).
Examples of materials properly the subject of judicial notice include maps, see Patterson v.
Dahlsten Truck Line, Inc., 130 F.Supp.2d 1228, 1234 (D.Kan. 2000), technical documents, see
Pacific Coast Federation of Fishermen's Association/Institute for Fisheries Resources v.
Gutierrez, 2007 WL 1752287, *3 (E.D.Cal. Jun. 15, 2007), attached as Ex. 64, government
organizational documents, see American Bankers Ass'n v. National Credit Union Admin., 347
F.Supp.2d 1061, 1067 (D.Utah 2004), government reports, see Blair v. City of Pomona, 223 F.3d
1074, 1081 (9th Cir. 2000) and legislative materials, see United States v. Wolny, 133 F.3d 758,
764 (10th Cir. 1998).
48
Rule 201 governs notice of adjudicative facts, while case law governs notice of nonadjudicative facts. Advisory Committee’s Notes to Fed. R. Evid. 201(a).
Except for the Congressional Research Service memorandum addressing the Transfer Act
(Ex. 22), which presents legislative facts, pp. 62-63, infra, and Plaintiffs’ standing declarations,
the submission of which were mandatory, p. 64, infra,, the materials presented by Plaintiffs
present adjudicative facts. As required by Rule 201(b), these are not subject to reasonable
dispute because they are either generally known or “capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
BLM’s arguments that these materials do not merit judicial notice repeatedly confuse the
entirely distinct standards for judicial notice and those for supplementing the administrative
record. This Court may take judicial notice of eligible materials, regardless of whether they fit
an exception to the record review rule. Compare Advisory Committee’s Notes to Fed. R. Evid.
201(a) and Jack B. Weinstein & Margaret A. Berger, 1 Weinstein's Federal Evidence § 201.12[2]
(2d ed. 2004) (both describing the forms of judicial notice) with Am. Mining Cong. v. Thomas,
772 F.2d 617, 626 (10th Cir. 1985) (listing five exceptions to the record review rule). BLM’s
argument incorrectly conflates these standards, and the cases cited by BLM regarding the record
review rule, BLM Mot. to Strike at 7, do not even discuss judicial notice. Courts taking judicial
notice in APA cases do not require the facts to satisfy any of the exceptions to the record review
rule. See, e.g., American Bankers Ass'n, 347 F.Supp.2d at 1068 (using the factors in Fed. R.
Evid. 201, not those for supplementing a record, in deciding to take notice of extra-record
materials).
49
Similarly, BLM wrongly contends that a number of materials are irrelevant because they
are post-decisional documents that could not have been considered by the agency in making its
decision. BLM Mot. to Strike at 10. The distinction between pre-and-post-decisional
documents, or whether the materials were considered by BLM, relates to whether they are part of
the administrative record. This distinction is irrelevant for purposes of judicial notice. CEC
does not contend that these documents are part of the administrative record. Rather, they are
undisputed factual documents of which this Court can take notice, even if dated after BLM’s
final September 29, 2008 decision. See Pacific Coast Federation of Fishermen's Association,
2007 WL 1752287 at * 3 (taking judicial notice of post-decisional documents).
BLM’s argument also is wrong as a factual matter – most documents in question are
dated before the last BLM decision challenged in this case. BLM mistakenly contends that those
decisions were completed by March 2008. This case encompasses BLM’s decisions continuing
through its rejections of the lease protests and issuance of the leases, which occurred on
September 29, 2008. See CEC Br. at 11-13. BLM already has acknowledged this timeline by
designating an administrative record that extends through September 2008. See, e.g., Exs. 16-17,
53 (administrative record documents from September 2008). Most of the supposedly postdecisional documents are dated before September 29, 2008. See BLM Mot. to Strike at 10-11;
see, e.g., Ex. 41 (May 15, 2008); Ex. 47 (August 2008); Ex. 49 (May 12, 2008); Colorado
Division of Public Health presentation on ozone pollution in the Front Range (April 8, 2008)
(“CDPHE Presentation”), cited at CEC Br. at 45. 29
29
BLM has argued that because CEC asked the Court to consider extra-record materials by
taking judicial notice rather than supplementing the administrative record, CEC’s January 16,
50
C.
The Materials Presenting Adjudicative Facts Are Properly the Subject of
Judicial Notice.
Rule 201 of the Federal Rules of Evidence allows a court to take judicial notice of
adjudicative facts not subject to reasonable dispute that are either generally known or “capable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). All of the adjudicative facts presented by Plaintiffs meet this
standard.
BLM asserts that CEC’s materials do not satisfy Rule 201, but offers no evidence that a
reasonable dispute exists about any of these facts or that their veracity cannot readily be
determined. C.f. Davis, 302 F.3d at 1123 n. 11 (factual issues surrounding urban growth were
subject to reasonable dispute). Instead, BLM claims that these facts are subject to reasonable
dispute by definition because they “are used to support [Plaintiffs’ ]arguments in the present
2009 Motion for Judicial Notice was untimely. BLM is mistaken. Both kinds of motions request
the Court consider materials that BLM did not include in the designated administrative record.
As such, there is no reason a motion for judicial notice and motion to supplement would be
briefed and considered on radically different schedules. The Court’s October 15, 2008 and
November 17, 2008 Orders specifically provide that CEC may file a motion to supplement the
record at the same time as its January 16 opening merits brief. (Dkt. ## 42, 58.) The Court’s
scheduling orders recognized that CEC could not reasonably be expected – only a few days after
the filing of the 54,000-page administrative record – to identify every document for which a
request to supplement might be necessary.
BLM’s timeliness argument is particularly inappropriate because the Court barred CEC
from filing any motions to supplement between November 21 and January 16. (Dkt. # 58.) That
post-November 21 limit was imposed by the Court at Defendants’ request and over the
objections of CEC, which had asked for greater flexibility in the timing of such motions prior to
January 16. See id.; see also Ex. 60, Nov. 14, 2008 letter from R. Mathes to M. Freeman at 2;
Ex. 63, Nov. 13, 2008 letter from M. Freeman to A. Sato at 1 (correspondence between counsel
prior to Nov. 17 hearing). BLM cannot contend that the motion is untimely where CEC has
complied with the schedule that Defendants themselves demanded.
In any case, CEC’s motion is not limited to issues of judicial notice, as BLM seems to
believe. In addition to requesting judicial notice, CEC asked in the alternative that a number of
documents be considered because they fit within exceptions to the record review rule. See
Motion for Judicial Notice at 4 n.1, 7-8.
51
litigation.” BLM Mot. to Strike at 12. In other words, BLM claims the facts are subject to
dispute because they are helpful to CEC’s position in this case. This is not the standard for a
“reasonable dispute”: the fact that a document supports a party’s argument does not disqualify it
for consideration. If this were the standard, adjudicative judicial notice would never apply
because, of course, parties submit materials that are helpful to their case. The Federal District
Court for the District of Utah rejected this argument squarely in 2004, writing that “[t]he fact that
the materials may dispute [Defendant’s] findings or demonstrate that the decision-making
process was flawed does not make them unworthy of judicial notice.” American Bankers Ass'n,
347 F.Supp.2d at 1068.
1.
The Court May Consider CEC’s Map Illustrating BLM’s GIS Model
of Full Development Atop the Plateau.
BLM opposes consideration of the map offered as a demonstrative exhibit on page 34 of
CEC’s Opening Brief (Dkt. # 66). The map illustrates the GIS model BLM prepared to evaluate
potential well and road locations after full development of the top of the Roan Plateau. See CEC
Br. at 33-34; Ex. 1 at 2-7. The map illustrates a key flaw in BLM’s argument that full
development was too speculative to evaluate. See CEC Br. at 35. The map shows BLM had
predicted full development, even while the agency refused to analyze its impacts. Id. at 33-34.
A court may consider maps or other demonstrative exhibits offered to illustrate facts
presented in the administrative record. See, e.g., Ft. Funston Dogs Walkers v. Babbitt, 96 F.
Supp. 2d 1021, 1025, n. 5 (N.D. Cal. 2000) (allowing consideration of a map modified from one
in administrative record to illustrate issues in case); see also Patterson, 130 F.Supp.2d at 1234
(taking judicial notice of a map). BLM does not dispute that its underlying GIS model is part of
52
the record. Nor does the agency dispute that the map offered by CEC accurately depicts that GIS
model. As discussed above, pp. 17-18, supra, BLM developed the GIS model to confirm that its
Plan for the Roan will allow operators to recover substantially all of the gas under the top of the
Plateau. The only document BLM included in the administrative record depicting the results of
this model, however, does not clearly show some of its most important features: the location and
number of well pads anticipated by BLM after full development of the top of the Plateau. See
Ex. 54, Attachment 1 (the “AR 29063 map”); see also Ex. 1 at 2-7 (mentioning model). The map
offered by CEC illustrates those features from BLM’s GIS model, and may be considered as a
demonstrative exhibit.
The Court also may consider the map because BLM improperly failed to retain key
portions of the administrative record, thus preventing the Court from reviewing the full GIS
model that the agency considered when making its decision. United States Dept. of Energy v.
Brimmer, 776 F.2d 1554, 1559 n. 1 (Temp. Emerg. Ct. App. 1985) (supplementation appropriate
“where it is discovered that evidence considered by the agency adjudicators was, because of
clerical mistake or other oversight, not included in the administrative record”); see also Citizens
to Preserve Overton Park v. Volpe¸ 401 U.S. 402, 420 (1971) (exceptions to the administrative
record review rule include cases of agency oversight or improper behavior and where the
administrative record does not disclose the factors considered by the agency).
Prior to submitting the map to illustrate BLM’s GIS model, CEC requested that BLM
supplement the administrative record with the missing GIS layers from that model. Counsel for
BLM informed CEC that BLM had failed to retain them. As a result, CEC was forced to develop
the map in order to reconstruct information that should have been retained by BLM for inclusion
53
in the administrative record. BLM does not deny that it prepared the GIS model, or that the GIS
layers for that model are properly part of the administrative record. It simply chose not to retain
those materials, thus preventing them from being available for this Court’s review. The Court
should not reward such conduct by refusing to consider CEC’s reconstruction of information that
belongs in the administrative record.
Strangely, after arguing that this map “was never before the BLM decision-maker,” BLM
argues that the map should be excluded because “it is cumulative and repetitive of information
already contained in the record.” BLM Mot. to Strike at 16-17. The odd argument can be
refuted by the AR 29063 map, which does not clearly show the number of well pads anticipated
by BLM in its model or the location of those wells, as well as by BLM’s admission that it did not
retain the needed GIS layers. See Ex. 54 at Attachment 1. The FEIS also fails to provide this
information or to describe the model in any detail. Ex. 1 at 2-7. In order to show the Court how
many well pads BLM predicted in the model (approximately 130 wellpads for more than 2,000
wells) and their location, CEC had to reconstruct the model and offer the map on page 34 of their
Opening Brief. 30 Had this map been repetitive of existing materials in the record, CEC would
not have had to reconstruct it. See Ex. 54; see also Hall v. UNUM Life Ins. Co. of America, 300
30
BLM has also moved to strike Exhibit 54, a declaration by CEC’s GIS specialist about how the
BLM GIS data was reconstructed and the map on page 34 of the Opening Brief was prepared.
Such narrow explanatory declarations are routinely considered to assist courts with technical
materials. See, e.g., International Center for Technology Assessment v. Johanns, 473 F.Supp.2d
9, 18 n.7 (D.D.C. 2007) (rejecting a motion to strike declarations because they were “almost
exclusively explanatory”); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 n.22
(9th Cir 1992) (allowing consideration of an affidavit explaining technical issues around a timber
harvest modeling program because the issues were “sufficiently complex”). BLM additionally
claims that that the declaration was not included in CEC’s Motion for Judicial Notice. BLM
Mot. to Strike at 5. BLM is mistaken; the explanatory declaration was referenced repeatedly in
CEC’s Motion. Mot. for Judicial Notice at 7-8.
54
F.3d 1197, 1207 (10th Cir. 2007) (cited by BLM) (admitting relevant new evidence and
concluding that it was not cumulative or repetitive).
CEC’s reconstruction of the BLM map is directly relevant to CEC’s argument that BLM
should not have cut off its impacts analysis at 20 years and could have evaluated the impacts of
later development. See CEC Br. at 33. BLM does not challenge its accuracy. BLM Mot. to
Strike at 13-14. As a demonstrative exhibit, it is properly the subject of judicial notice. The
Court should reject BLM’s request that it ignore this map.
2.
The Court May Consider Publicly-Available Documents Offered As
Background for CEC’s Ozone Claims.
BLM asks this Court to ignore several publicly-available documents offered in support of
CEC’s air quality-related claims: Ex. 41 (2008 Colorado Air Pollution Control Division
Presentation); Ex. 42 (State of New Mexico Motion to Supplement Record on Appeal to the EPA
Environmental Appeals Board in the matter of Desert Rock Energy Corporation LLC); Ex. 43,
2008 ozone article from Grand Junction Sentinel); Ex. 47 (State of Utah Comments on Vernal
Field Office Proposed RMP and Draft EIS; a CDPHE presentation on ozone pollution in the
Front Range, cited at CEC Br. at 45, and a summary of the White River National Forest and
Garfield County Ozone Monitoring Program (Dkt. # 16.26). BLM Mot. to Strike at 4, 6.
CEC offered these documents to illustrate that various state and federal environmental
agencies – including the State of Utah, the Colorado Department of Public Health and
Environment, the State of New Mexico, and Garfield County where the Roan is located – have
expressed concern over the large quantity of ozone-generating pollutants generated by oil and
55
gas development, and the ozone pollution ignored by BLM. 31 These materials are directly
relevant to this litigation because they undermine the claim by BLM and the Companies that oil
and gas-related ozone pollution is not a concern in western Colorado. See Companies’ Br. at 7476 (“Ozone Levels Are Not a Concern in the Roan Plateau” area); BLM Br. at 39 (“there was no
indication that ozone posed a significant environmental impact in the Planning Area”). The
materials offered by CEC demonstrate that, in fact, virtually every relevant agency other than
BLM recognized that ozone pollution is a significant air quality impact associated with oil and
31
One additional document summarizing Garfield County’s ozone monitoring program, Dkt.
#16.26, see CEC Br. at 46, was inadvertently omitted from the list of air quality-related
documents in CEC’s Motion. This document is relevant and an appropriate subject for judicial
notice for the reasons described above. Similarly, this reply cites several additional references
relating to air quality issues. See pp. 29 (citing Ex. 65, SUWA v. Allred brief), 14 n.10 (citing
federal onshore royalty statistics), 33 n.20 (citing the State of Colorado Technical Support
Document for Recommended 8-Hour Ozone Designations), 33 n.21 (citing the Colorado Air
Quality Control Commission’s 2007-2008 report to the public), 36 n.23 (citing EPA
recommendations for estimating VOCs from oil and gas production), supra. These materials,
several of which were also cited by the Companies, may be considered for the reasons discussed
above.
56
gas development. 32
These documents also satisfy Rule 201’s requirement that they not be subject to
reasonable dispute. For example, BLM has in its own files the State of Utah comments
criticizing BLM’s failure to address ozone in the Vernal-Roan air analysis (Ex. 47). See CEC
Br. at 47. That Utah filed this comment letter is not subject to reasonable dispute. Moreover, the
fact that Colorado predicts oil and gas development will be responsible in 2010 for more ozonegenerating VOCs than all other sources in the state combined (Ex. 41) is not subject to
reasonable dispute. That prediction is posted on the agency’s web site. And the descriptions by
New Mexico, Colorado, and Garfield County of ozone conditions and their concerns about its
severity (Exs. 42, 43, CDPHE Presentation) are “capable of accurate and ready determination”
from agency web pages, court records, and newspaper stories. Federal Defendants offer no basis
on which to question the accuracy of these summaries. See Blair, 223 F.3d at 1081 (taking
judicial notice of government report); Nebraska v. EPA, 331 F.3d 995, 999 (D.C. Cir. 2003)
(taking judicial notice of facts publicly available on state agency web page); Parker v. Robinson,
2008 WL 1924376, * 2 (D. Colo. May 1, 2008) (same), attached as Ex. 64; Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 569 n. 13 (2007) (taking judicial notice of news story); Washington
Post v. Robinson, 935 F.2d 282, 291-92 (D.C. Cir. 1991) (newspaper articles).
32
CEC included Exhibit 49, a court filing in SUWA v. Kempthorne, No. 08-0411 (EGS), to
show that the lack of an ozone analysis was an issue presented to the Court in that case. CEC Br.
at 49. Without the underlying legal brief, it would be difficult for this Court to understand the
SUWA court’s ruling. Courts routinely take judicial notice of documents found in court files.
See, e.g., George W. v. U.S. Dep’t of Educ., 149 F. Supp. 2d 1195, (E.D. Cal. 2000) (“courts
take notice of proceedings in other courts . . . if those proceedings have a direct relation to the
matters at issue”) (internal quotation omitted); Smith v. Bender, 2008 WL 2751346, * 6 (D.
Colo. July 11, 2008), attached as Ex. 64.
57
In the alternative, CEC requested that these air-quality related documents be added to the
administrative record because they fall within a Tenth Circuit record-review exception: they
indicate that “the agency ignored relevant factors it should have considered in making its
decision.” Am. Mining Cong. v. Thomas, 772 F.2d at 626; see also Mot. for Judicial Notice at 4
n.1. The documents offered by CEC underscore the unreasonableness of BLM’s refusal to
consider a problem that had received broad recognition by virtually every relevant agency other
than BLM.
This record-review exception is particularly relevant in NEPA cases like this one. Courts
have repeatedly acknowledged that extra-record materials may be necessary because “a primary
function of the court is to insure that the information available to the decision-maker includes an
adequate discussion of environmental effects and alternatives[,] which can sometimes be
determined only by looking outside the administrative record to see what the agency may have
ignored.” National Audubon Soc. v. Hoffman, 132 F.3d 7, 15 (2d Cir. 2007) (internal quotations
omitted); see also Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (listing “cases arising
under the National Environmental Policy Act” as an exception to the record review rule).
This Court has allowed similar materials in a NEPA case because it “is necessary both for
determining whether the agency considered all relevant factors and to explain technical terms or
complex subject matter involved in the action.” Colorado Environmental Coalition v. Lujan, 803
F.Supp. 364, 370-71 (D.Colo. 1992).
3.
The Court May Consider BLM EISs For Other Oil And Gas
Development.
BLM does not offer any reason to ignore the four EISs that were, in fact, prepared by
BLM. See BLM Mot. to Strike at 14. These documents are relevant to CEC’s claims because
58
they show that BLM can, and has, disclosed the full impacts of oil and gas development, instead
of imposing an artificial 20-year cutoff date as it did on the Roan. See CEC Br. at 48 n. 22, 35
nn. 13-15.
The contents of the cited EISs are not subject to reasonable dispute, and are “capable of
accurate and ready determination” by reference to BLM’s own web site. The Court can and
should take judicial notice of these EISs. Nebraska, 331 F.3d at 999 (taking judicial notice of
data from EPA web site on volume of interstate water sales); Oregon Assoc. of Homes for the
Aging v. State of Oregon, 5 F.3d 1239, 1243 n. 2 (9th Cir. 1993) (court can take judicial notice
of agency records); Parker, 2008 WL 1924376 at * 2 (taking judicial notice of facts on state
agency’s web page); see also The Ark Initiative v. U.S. Forest Serv., 2007 WL 1757021, *1 (D.
Colo. Jun. 18, 2007) (ordering “documents related to other projects and activities that Plaintiffs
contend have cumulative impacts on the project area” added to the record), attached as Ex. 64;
cf., Fenner v. Suthers, 194 F. Supp. 2d 1146, 1148-49 (D. Colo. 2002) (declining to take judicial
notice of citations to internet web site materials where the opposing party lacked access to the
internet and the materials were not filed with the court).
4.
The Court May Consider A Map of the Roan Plateau Lease Parcels.
BLM also moves to strike CEC’s Exhibit 21, a map identifying the lease parcels at issue
in this case, and the companies that purchased each parcel. It is unclear why BLM objects to
Exhibit 21, which is substantively identical to a map CEC filed without objection earlier in this
case. (Dkt. # 16.) BLM does not contend the map is inaccurate, or that Exhibit 21 causes it any
prejudice.
59
CEC provided the map for the Court’s convenience as a demonstrative exhibit illustrating
information in the administrative record. Ft. Funston, 96 F. Supp. 2d at 1025 n. 5. The map was
generated from BLM’s own data, which was properly part of the administrative record. The
Court also may take judicial notice of the map because it involves undisputed facts that may be
readily ascertained from BLM’s own records. See Vaughn v. Stevenson, 2007 WL 460959, * 3
n. 6 (D. Colo. Feb. 7, 2007), attached as Ex. 64 (taking judicial notice of undisputed geographic
fact).
5.
The Court May Consider Paulette Middleton’s Explanation of The
Scheffe Method.
BLM next objects to CEC’s citation to a declaration filed with CEC’s motion for
preliminary injunction. BLM Mot. to Strike at 6. In its Opening Brief, CEC refers to the
declaration of Paulette Middleton, which provides a brief explanation of the “Scheffe method.”
CEC Br. at 48, n. 23 (referencing Dkt. # 16.3). CEC provided this reference to assist the Court
in understanding the technical issues underlying the ozone-related claims. Id.; pp. 35-37, supra.
BLM does not assert that Dr. Middleton’s explanation is incorrect, or that this reference
prejudices the government in any way.
The Court may consider the declaration for the limited purposes of explaining this
technical term. See, e.g., Pacific Coast Federation of Fishermen's Association, 2007 WL
1752287 at * 2 (documents that “explain complex scientific terms and may aid the court in
60
understanding the science and technical issues” can be noticed for this purpose), attached as Ex.
64; Purkey v Green, 28 Fed. Appx. 736, 742 n. 4 (10th Cir. 2001), attached as Ex. 64. 33
6.
The Court May Consider Undisputed Government Materials.
BLM objects to CEC providing the Court with publicly available and undisputed
government materials. BLM Mot. to Strike at 4, 5. BLM objects to the inclusion of Colorado
Oil and Gas Conservation Commission’s statistics on the thousands of well permits issued in
Garfield County, previously filed without objection (Dkt. # 16.4), a map illustrating oil and gas
development in the area, see CEC Br. at 3, and a State of Colorado guidance document providing
relevant background on the state’s PSD program (Ex. 51).
The veracity of these materials is undisputed. BLM does not dispute the COGCC
statistics. BLM Mot. to Strike at 13-14. Nor does BLM explain why it objects to the
consideration of background materials on Colorado’s PSD program. Notably, even the
Companies “have no objection to Plaintiffs citing to” this guidance document. (Dkt. # 69-2, Ex.
A-1.) Both the COGCC data and the Colorado PSD guidance document are publicly available
on State web sites.
Courts regularly take judicial notice of publicly available, undisputed government
records. Nebraska, 331 F.3d at 999; Oregon Assoc., 5 F.3d at 1243 n. 2; Laborers Pension Fund
v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir. 2002) (taking judicial notice that
33
BLM also asserts that any citation to CEC’s preliminary injunction motion was improper after
Plaintiffs withdrew that motion. BLM Mot. to Strike at 5 n. 2. The preliminary injunction
motion was not stricken – Plaintiffs merely withdrew their request after an agreement to defer
ground-disturbing activities. (Dkt. #47.) That motion, and Dr. Middleton’s declaration, remain
part of the record in this case and may be judicially noticed. Van Woudenberg ex rel. Foor v.
Gibson, 211 F.3d 560, 568 (10th Cir. 2000); Grynberg v. Kempthorne, 2008 WL 2445564, *2
(D. Colo. Jun. 16, 2008), attached as Ex. 64.
61
two banks are related based on web site information); Parker, 2008 WL 1924376 at * 2. These
documents meet the standards of Fed. R. Evid. 201(b) and the Court may take judicial notice of
them.
7.
The Court May Consider Newspaper Articles Addressing Undisputed
Background Facts.
BLM objects to a quotation from a news article in which Colorado Governor Bill Ritter
criticized the August 2008 lease sale as “severely shortchanging” Colorado. Mark Jaffe & John
Ingold, Roan Oil, Gas Sales a Gusher; Ritter, Industry Upset with Tally, Denver Post (Aug. 15,
2008) at A1, available at http://www.denverpost.com/news/ci_10208460, quoted in CEC Br. at
11, 12. This public statement is undisputed and readily confirmed from the governor’s own web
site: http://www.colorado.gov/cs/Satellite?c=Page&cid=1218743638258&pagename=
GovRitter%2FGOVRLayout (last viewed Apr. 14, 2009). It rebuts BLM’s and the Companies’
statements regarding the merits of the lease sale in this case. See Companies Br. at 11-12 (citing
BLM lease sale press release at AR 44179). It may be considered by the Court. See American
Bankers Ass'n, 347 F.Supp.2d at 1068; Bell Atlantic Corp, 550 U.S. at 569 n. 13; Washington
Post, 935 F.2d at 291-92 (all taking judicial notice of newspaper articles).
D.
The CRS Memorandum Presents Legislative Facts That May Be Considered
by the Court.
Independent of Rule 201(b), courts can consider legislative facts presented by the parties.
Legislative facts “are those which have relevance to legal reasoning and the lawmaking process,
whether in the formulation of a legal principle or ruling by a judge or court or in the enactment
of a legislative body.” Advisory Committee’s Notes to Rule 201(a); see also Wolny, 133 F.3d at
764. Formal judicial notice is not necessary for the court’s consideration of legislative facts. See
62
Wolny, 133 F.3d at 764 (the documents were “obviously legislative, not adjudicative, facts and
thus are not governed by the judicial notice provisions of Rule 201”); Daggett v. Comm’n on
Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999) (“the ordinary
limits on judicial notice hav[e] no application to legislative facts”); Advisory Committee’s Notes
to Rule 201(a) (judicial access to legislative facts requires no “limitation in the form of
indisputability, any formal requirements of notice other than those already inherent in affording
opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings
at any level”).
The Congressional Research Service (“CRS”) memorandum analyzing the Transfer Act
represents a legislative fact. Like a law review article or treatise, sources routinely considered by
courts when deciding legal questions, the CRS memorandum analyzes a central legal issue in this
case. That analysis, developed by the legal office that advises Congress, squarely rejects BLM’s
misinterpretation of the Transfer Act. See CEC Br. at 19-20.
According to BLM, the CRS memorandum cannot be considered because it is merely “an
opinion” about the statute. BLM Mot. to Strike at 16. But courts routinely refer to treatises and
law review articles that like the CRS memorandum represent an author’s opinion about the law.
Courts take notice of these types of opinions and facts because they “have relevance to legal
reasoning and the lawmaking process” and do not change based on the facts of each case.
Advisory Committee’s Notes to Rule 201(a); Wolny, 133 F.3d at 764.
This Court can take notice of the CRS memorandum, just as it can review a relevant law
review article or treatise. See, e.g., Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 429
(2003) (relying upon a discussion in a law review article); Bartnicki v. Vopper, 532 U.S. 514,
63
534 (2001) (discussing and citing to a law review article); United States v. Pinson, 542 F.3d 822,
838 (10th Cir. 2008) (discussing and citing to law review note). BLM cites no authority to the
contrary.
E.
CEC’s Standing Declarations Are Properly Before the Court.
The Motion to Strike CEC’s standing declarations is a glaring example of BLM’s
overreach. BLM Mot. to Strike at 4 item 14; CEC Br. at 13 (Dkt. # 16.3). In order to pursue this
case, Plaintiffs must affirmatively establish their Article III standing. See Summers v. Earth
Island Inst., 129 S.Ct. 1142, 1151 (2008); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). For this purpose, the Supreme Court has required that plaintiffs “submit affidavits or
other evidence” that show, among other requirements, how plaintiffs will be harmed by the
agency’s decision. Lujan, 504 U.S. at 563; see also Summers, 129 S.Ct. at 1151. Had CEC not
included the standing declarations with its Opening Brief, BLM undoubtedly would have
contested CEC’s standing to challenge the agency’s Roan Plateau decision. The Court also
could have raised the issue sua sponte. Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 95 (1998).
Standing declarations that are required by the Constitution and Supreme Court precedent
are not subject to the record review limitation, as BLM seems to believe. See Northwest Envtl.
Defense Center v. Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 1997) (standing
declarations are considered “not in order to supplement the administrative record on the merits,
but rather to determine whether petitioners can satisfy a prerequisite to this court's jurisdiction”).
BLM’s request to strike Plaintiffs’ standing declarations must be denied.
64
CONCLUSION
For the reasons stated above and in CEC’s Opening Brief (Dkt. # 66), this Court should
vacate BLM’s decisions approving the Plan and leasing the Plateau, and enjoin BLM from
implementing its Plan until it complies with the law. In addition, the Court should enter an
injunction ordering BLM to cancel the leases issued to the Companies.
In addition, the Court should grant CEC’s Motion for Judicial Notice (Dkt. # 67), and
deny BLM’s Motion to Strike (Dkt. # 68).
Respectfully submitted April 20, 2009.
s/ Michael S. Freeman__________
James S. Angell
Michael S. Freeman
Margaret Parish
Earthjustice
1400 Glenarm Pl., #300
Denver, CO 80202
(303) 623-9466 (phone)
(303) 623-8083 (fax)
jangell@earthjustice.org
mfreeman@earthjustice.org
mparish@earthjustice.org
Michael Chiropolos
Western Resource Advocates
2260 Baseline Road, #200
Boulder, CO 80302
(303) 444-1188 (phone)
(303) 786-8054 (fax)
mike@westernresources.org
Attorneys for Plaintiffs
65
CERTIFICATE OF SERVICE
I hereby certify that on April 20, 2009, I electronically filed the foregoing
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF PETITION FOR REVIEW
OF AGENCY ACTION AND IN SUPPORT OF MOTION FOR JUDICIAL NOTICE
with the Clerk of Court using the CM/ECF system, which will send notification of such
filing to the following e-mail addresses:
jason.hill2@usdoj.gov
mike@westernresources.org
llindley@bjorklindley.com
rmathes@bjorklindley.com
kschroder@bjorklindley.com
rwwatson@hhlaw.com
jlbiever@hhlaw.com
charlie.breer@dgslaw.com
lamont.larsen@dgslaw.com
JCOverdyke@hollandhart.com
ACEmrich@hollandhart.com
s/ Michael S. Freeman