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Biodiversity Conservation Alliance v. Bureau of Land Management

June 18, 2010

BIODIVERSITY CONSERVATION ALLIANCE; GEORGE WUERTHNER, PLAINTIFFS - APPELLANTS,
AMERICAN LANDS ALLIANCE, PLAINTIFF,
v.
BUREAU OF LAND MANAGEMENT, AN AGENCY WITHIN THE DEPARTMENT OF INTERIOR; KEN SALAZAR, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF INTERIOR, DEFENDANTS - APPELLEES,
LANCE OIL & GAS COMPANY, INC.; WESTERN GAS RESOURCES, INC.; FIDELITY EXPLORATION & PRODUCTION COMPANY; WILLIAMS PRODUCTION RMT COMPANY; PENNACO ENERGY, INC.; MARATHON OIL COMPANY; STATE OF WYOMING; DEVON ENERGY CORPORATION; ANADARKO PETROLEUM COMPANY, DEFENDANTS-INTERVENORS -APPELLEES,
WESTERN ORGANIZATION OF RESOURCE COUNCILS; WYOMING OUTDOOR COUNCIL; POWER RIVER BASIN RESOURCE COUNCIL; NATURAL RESOURCES DEFENSE COUNCIL, PLAINTIFFS - APPELLANTS,
JEANIE ALDERSON; WALLY MCRAE, PLAINTIFFS,
v.
KATHLEEN CLARK, BUREAU OF LAND MANAGEMENT DIRECTOR; BUREAU OF LAND MANAGEMENT; KEN SALAZAR, UNITED STATES DEPARTMENT OF INTERIOR SECRETARY; UNITED STATES DEPARTMENT OF INTERIOR, DEFENDANTS - APPELLEES,
FIDELITY EXPLORATION & PRODUCTION COMPANY; MARATHON OIL COMPANY; PENNACO ENERGY, INC.; ANADARKO PETROLEUM CORPORATION; LANCE OIL & GAS COMPANY, INC.; WESTERN GAS RESOURCES, INC.; STATE OF WYOMING; DEVON ENERGY CORPORATION, DEFENDANTS-INTERVENORS -APPELLEES



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No.2:04-CV-00019-ABJ and No. 2:04-CV-00018-ABJ).

The opinion of the court was delivered by: Kelly, Circuit Judge

PUBLISH

Before KELLY, O'BRIEN, and HOLMES, Circuit Judges.

In this appeal, several environmental and citizens' groups challenge a 2003 Bureau of Land Management resource management plan amendment allowing natural gas development in Wyoming's Powder River Basin. The groups argue that the Bureau violated the National Environmental Policy Act when it refused to study in detail their proposal to phase development in the Basin over decades. The district court held that the Bureau adequately considered their suggested alternative. W. Org. of Res. Councils (WORC) v. Bureau of Land Mgmt., 591 F. Supp. 2d 1206, 1228 & n.4 (D. Wyo. 2008).

We have jurisdiction under 28 U.S.C. § 1291 and affirm. The Bureau reasonably refused to give detailed study to a plan that would not meet the project's purposes.

Background

A. Statutory Background

The Federal Land Policy and Management Act requires the Bureau of Land Management to develop resource management plans. 43 U.S.C. § 1712; 43 C.F.R. § 1601.0-5(n). A resource management plan is "designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses." 43 C.F.R. § 1601.0-2.

Under the National Environmental Policy Act (NEPA), the Bureau must prepare an environmental impact statement before developing or revising resource management plans. 42 U.S.C. § 4332(2)(C). An environmental impact statement must study in detail "alternatives to the proposed action." Id. For alternatives "eliminated from detailed study," the statement must "briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a). The Bureau then must publish a record of its decision, showing how its final decision-making process incorporated the statement's findings. 23 C. F. R. § 771.127.

B. Administrative Background

1. The Bureau Decides to Revise the Powder River Basin Resource Management Plan

During the late 1990s, federal lessees proposed drilling about 23,900 new coal bed methane gas wells in the Powder River Basin over a ten-year period. Lessees Supp. App. ("LSA") at 224, 262-63. Without new federal drilling, non-federal drilling would cause severe federal royalty losses by reducing reservoir pressure and siphoning federal gas. Id. at 12, 157-59. To consider the proposal, the Bureau agreed to prepare an environmental impact statement analyzing amending the Basin's resource management plan. See 65 Fed. Reg. 38571 (June 21, 2000); 65 Fed. Reg. 38572 (June 21, 2000).

As well as evaluating the lessees' plan, the statement would study other proposed development plans that met the Bureau's project criteria. Eligible plans first had to describe different ways for the Bureau to "provide federal minerals to meet the nation's energy needs" and to facilitate "the protection of the financial interest of the United States by preventing drainage of federal minerals" in the project area. LSA at 263, 266, 282. Alternatives also needed to identify "mitigation measures to address issues and conditions of approval," to assess leasing in other areas, and to review the existing management plan. Id. at 266. Studying these alternatives would provide "the basis to analyze and disclose the impacts of the level of development proposed" by the lessees. Id. at 266.

2. The Groups Propose Phased Development

At this time, the groups requested that the Bureau consider phased development as an alternative to the lessees' plan. Id. at 596-630. Phased development, as the groups defined it, clusters drilling geographically to maintain open areas. Aplt. Br. at 14-15, 27; LSA at 599, 603-04. Drilling also proceeds a "coal seam at a time." LSA at 599, 603-04. Developers reclaim each site "to a pastoral landscape" before drilling in a new site. Id. at 604. Phased development necessarily delays most drilling for "10 years to decades or longer." Id.

The groups admitted that their plan may allow other developers to drain federal minerals. Id. at 605. But they suggested that the Bureau could reduce its drainage losses through compensation agreements, protective wells, compensatory ...


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