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State v. United States Department of Interior

United States District Court, D. Wyoming

September 30, 2015

STATE OF WYOMING, STATE OF COLORADO, Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as Secretary of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; and NEIL KORNZE, in his official capacity as Director of the Bureau of Land Management, Respondents, SIERRA CLUB, EARTHWORKS, WESTERN RESOURCE ADVOCATES, CONSERVATION COLORADO EDUCATION FUND, THE WILDERNESS SOCIETY, and SOUTHERN UTAH WILDERNESS ALLIANCE, Intervenor-Respondents. INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, and WESTERN ENERGY ALLIANCE, Petitioners, STATE OF NORTH DAKOTA, STATE OF UTAH, and UTE INDIAN TRIBE, Intervenor-Petitioners,
v.
SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior; and BUREAU OF LAND MANAGEMENT, Respondents

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          For State of Wyoming, Petitioner: Jeremy A Gross, Michael James McGrady, LEAD ATTORNEYS, WYOMING ATTORNEY GENERAL'S OFFICE, Cheyenne, WY.

         For State of Colorado, Petitioner: Andrew J Kuhlmann, WYOMING ATTORNEY GENERAL'S OFFICE, Cheyenne, WY; Frederick R. Yarger, PRO HAC VICE, COLORADO ATTORNEY GENERAL'S OFFICE, Denver, CO.

         For Independent Petroleum Association of America, Western Energy Alliance, Petitioners: Alexander Karl Obrecht, Mark S Barron, LEAD ATTORNEYS, PRO HAC VICE, Baker & Hostetler, Denver, CO; Lyle Poe Leggette, LEAD ATTORNEY, BAKER AND HOSTETLER, Denver, CO.

         For State of North Dakota, Intervenor Petitioner: Andrew C Emrich, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO; Hope Hogan, Matthew A Sagsveen, Wayne Stenehjem, LEAD ATTORNEYS, PRO HAC VICE, NORTH DAKOTA ATTORNEY GENERALS OFFICE, Bismarck, ND; Lauren R Caplan, LEAD ATTORNEY, PRO HAC VICE, HOLLAND & HART LLP, Washington, DC; Paul M Seby, LEAD ATTORNEY, PRO HAC VICE, HOLLAND & HART, Denver, CO.

         For Ute Indian Tribe, Intervenor Petitioner: Christopher J Reagen, Jeffrey S Rasmussen, Jeremy J Patterson, LEAD ATTORNEYS, PRO HAC VICE, FREDERICKS PEEBLES & MORGAN LLP, Louisville, CO; Scott P Klosterman, LEAD ATTORNEY, WILLIAMS PORTER DAY & NEVILLE, Casper, WY.

         For Sierra Club, Intervenor Respondent: Michael S Freeman, LEAD ATTORNEY, PRO HAC VICE, EARTHJUSTICE, Denver, CO; Nathan Douglas Matthews, LEAD ATTORNEY, PRO HAC VICE, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, San Francisco, CA; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY.

         For Earthworks, Western Resource Advocates, Wilderness Society, Conservation Colorado Education Fund, Southern Utah Wilderness Alliance, Intervenor Respondents: Michael S Freeman, LEAD ATTORNEY, PRO HAC VICE, EARTHJUSTICE, Denver, CO; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY.

         For United States Department of the Interior Secretary, In her offical capacity as Secretary of the Interior also known as Sally Jewell, United States Bureau of Land Management Director, also known as Neil Kornze, United States Department of the Interior, United States Bureau of Land Management, Respondents: David A Carson, LEAD ATTORNEY, PRO HAC VICE, DEPARTMENT OF JUSTICE, Denver, CO; Jody H Schwarz, LEAD ATTORNEY, PRO HAC VICE, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources Divisions, Washington, DC; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY; Stephen R Terrell, LEAD ATTORNEY, PRO HAC VICE, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENTAL AND NATURAL RESOURCES DIVISION, Washington, DC; William E Gerard, LEAD ATTORNEY, PRO HAC VICE, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION WILDLIFE & MARINE RESOURCES, Washington, DC.

         For Wyoming County Commissioners Association, Amicus: Gregory M Cowan, LEAD ATTORNEY, Wyoming County Commissioners Association, Cheyenne, WY.

         For State of Utah, Intervenor: Daniel B Frank, LEAD ATTORNEY, FRANK LAW OFFICE, Cheyenne, WY; John Robinson, Jr, Sean D Reyes, Steven F Alder, LEAD ATTORNEYS, PRO HAC VICE, UTAH ATTORNEY GENERAL'S OFFICE, Salt Lake City, UT.

         For Independent Petroleum Association of America, Western Energy Alliance, Petitioners (2:15-cv-00041-SWS): Lyle Poe Leggette, LEAD ATTORNEY, BAKER AND HOSTETLER, Denver, CO; Alexander Karl Obrecht, Mark S Barron, PRO HAC VICE, Baker & Hostetler, Denver, Co.

         For Wyoming County Commissioners Association, Movant (2:15-cv-00041-SWS): Gregory M Cowan, LEAD ATTORNEY, Wyoming County Commissioners Association, Cheyenne, WY.

         For Sierra Club, Intervenor Respondent (2:15-cv-00041-SWS): Michael S Freeman, LEAD ATTORNEY, PRO HAC VICE, EARTHJUSTICE, Denver, CO; Nathan Douglas Matthews, LEAD ATTORNEY, PRO HAC VICE, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, San Francisco, CA; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY.

         For Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, Wilderness Society, Southern Utah Wilderness Alliance, Intervenor Respondents (2:15-cv-00041-SWS): Michael S Freeman, LEAD ATTORNEY, PRO HAC VICE, EARTHJUSTICE, Denver, CO; Nathan Maxon, LEAD ATTORNEY, MAXON LAW OFFICE, Lander, WY.

         For Bureau of Land Management, Secretary of the U.S. Department of the Interior, in her official capacity also known as Sally Jewell, Respondents (2:15-cv-00041-SWS): David A Carson, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Denver, CO; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY; William E Gerard, LEAD ATTORNEY, PRO HAC VICE, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION, WILDLIFE & MARINE RESOURCES, Washington, DC.

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         ORDER ON MOTIONS FOR PRELIMINARY INJUNCTION

         Scott W. Skavdahl, United States District Judge.

         This matter comes before the Court on the motions for preliminary injunction filed by the various Petitioners and Intervenor-Petitioners: Motion for Preliminary Injunction of Petitioners Independent Petroleum Association of America (" IPAA" ) and Western Energy Alliance (" Alliance" ) (hereinafter " Industry Petitioners" ) (ECF No. 11 in 15-CV-041); Wyoming and Colorado's Motion for Preliminary Injunction (ECF No. 32),[1] in which the State of Utah has joined; North Dakota's Motion for Preliminary Injunction (ECF No. 52), in which the State of Utah has joined; and Motion for Preliminary Injunction filed by the Ute Indian Tribe (ECF No. 89).

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The Court, having considered the briefs and materials submitted in support of the motions and the oppositions thereto, including the Administrative Record, having heard witness testimony and oral argument of counsel, and being otherwise fully advised, FINDS and ORDERS as follows:

         Background

         On March 26, 2015, the Bureau of Land Management (" BLM" ) issued the final version of its regulations applying to hydraulic fracturing on federal and Indian lands. 80 Fed.Reg. 16,128-16,222 (Mar. 26, 2015) ('Tracking Rule" ). The Fracking Rule's focus is on three aspects of oil and gas development -- wellbore construction, chemical disclosures, and water management ( id. at 16,128 & 16,129) -- each of which is subject to comprehensive regulations under existing federal and state law. The rule was scheduled to take effect on June 24, 2015. Following a hearing on the preliminary injunction motions, this Court postponed the effective date of the Fracking Rule pending the BLM's lodging of the Administrative Record (" A.R." ) and the Court's ultimate ruling on the preliminary injunction motions. ( See ECF No. 97.)

         For the better part of the last decade, oil and natural gas production from domestic wells has increased steadily. Most of this increased production has come through the application of the well stimulation technique known as hydraulic fracturing (or " Tracking" ) -- the procedure by which oil and gas producers inject water, sand, and certain chemicals into tight-rock formations (typically shale) to create fissures in the rock and allow oil and gas to escape for collection in a well.[2] See 80 Fed.Reg. at 16,131 (estimating that ninety percent of new wells drilled on federal lands in 2013 were stimulated using hydraulic fracturing techniques). Hydraulic fracturing has been used to stimulate wells in the United States for at least 60 years -- traditionally in conventional limestone and sandstone reservoirs -- and meaningful attempts to use the technique to extract hydrocarbons from shale date back to at least the 1970s. See U.S. Dep't of Energy, How is Shale Gas Produced? [3] " More recently, hydraulic fracturing has been coupled with relatively new horizontal drilling technology in larger-scale operations that have allowed greatly increased access to shale oil and gas resources across the country, sometimes in areas that have not previously or recently experienced significant oil and gas development." 80 Fed.Reg. 16,128.

         Purportedly in response to " public concern about whether fracturing can lead to or cause the contamination of underground water sources," and " increased calls for stronger regulation and safety protocols," the BLM undertook rulemaking to implement " additional regulatory effort and oversight" of this practice. Id. at 16,128 & 16,131. In May of 2012, the BLM issued proposed rules " to regulate hydraulic fracturing on public land and Indian land." 77 Fed.Reg. 27,691 (May 11, 2012). The stated focus of the rules was to: (i) provide disclosure to the public of chemicals used in hydraulic fracturing; (ii) strengthen regulations related to well-bore integrity; and (iii) address issues related to water produced during oil and gas operations. Id. The BLM reports it received approximately 177,000 public comments on the initial proposed rules " from individuals, Federal and state governments and agencies, interest groups, and industry representatives." 80 Fed.Reg. at 16,131.

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          Just over a year later, the BLM issued revised proposed rules, representing that the agency has " used the comments on [the May 11, 2012 draft proposed rules] to make improvements" to the agency's proposal. 78 Fed.Reg. 31,636 (May 24, 2013). Key changes included an expanded set of cement evaluation tools to help ensure protection and isolation of usable water zones and a revised process for how operators could report information about chemicals they claim to be protected as trade secrets. Id. at 31,636 & 31,637. The BLM also expressed its intent to " work with States and tribes to establish formal agreements that will leverage the strengths of partnerships, and reduce duplication of efforts for agencies and operators, particularly in implementing the revised proposed rule as consistently as possible with State or tribal regulations." Id. at 31,637. The BLM reportedly received over 1.35 million comments on the supplemental proposed rule. 80 Fed.Reg. at 16,131.

         The BLM ultimately published its final rule regulating hydraulic fracturing on federal and Indian lands on March 26, 2015. The BLM determined the Fracking Rule fulfills the goals of the initial proposed rules: " [t]o ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic fracturing fluids." Id. at 16,128.

         The Industry Petitioners and the States of Wyoming and Colorado filed separate Petitions for Review of Final Agency Action on March 20th and 26th, 2015, respectively, seeking judicial review of the Fracking Rule pursuant to the Administrative Procedure Act (" APA" ), 5 U.S.C. § 701 et seq. The States of North Dakota and Utah, and the Ute Indian Tribe of the Uintah and Ouray Reservation, later intervened in the States' action, and the Court granted the parties' motion to consolidate the two separate actions. Petitioners and Intervenor-Petitioners request a preliminary injunction enjoining the BLM from applying the Fracking Rule pending the resolution of this litigation.

         Standard of Review

         To obtain a preliminary injunction, petitioners must show: " (1) a likelihood of success on the merits; (2) that they will [likely] suffer irreparable harm; (3) that the balance of equities tips in their favor; and (4) that the injunction is in the public interest." Petrella v. Brownback, 787 F.3d 1242, 1257 (10th Cir. 2015). See also Glossip v. Gross, 135 S.Ct. 2726, 2736, 192 L.Ed.2d 761 (2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). " [B]ecause a preliminary injunction is an extraordinary remedy, the movant's right to relief must be clear and unequivocal." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Home, 698 F.3d 1295, 1301 (10th Cir. 2012) (internal quotation marks and citation omitted).

The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing, and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.

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Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (citations omitted). See also Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (primary goal of preliminary injunction is to preserve the pre-trial status quo). The grant or denial of a preliminary injunction lies within the sound discretion of the district court. Amoco Oil Co. v. Rainbow Snow, 748 F.2d 556, 557 (10th Cir. 1984).

         Discussion

         Petitioners contend the Fracking Rule should be set aside because it is arbitrary, not in accordance with law, and in excess of the BLM's statutory jurisdiction and authority. See 5 U.S.C. § 706(2)(A) & (C).[4] The Ute Indian Tribe additionally contends the Fracking Rule is contrary to the Federal trust obligation to Indian tribes.

         A. Likelihood of Success on the Merits

         Judicial review of agency action is governed by the standards set forth in § 706 of the APA, requiring the reviewing court to engage in a " substantial inquiry." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1573-74 (10th Cir. 1994) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). While an agency's decision is entitled to a " presumption of regularity," the presumption does not shield the agency from a " thorough, probing, in-depth review." Id. at 1574. " [T]he essential function of judicial review is a determination of (1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion." Id. " Determination of whether the agency acted within the scope of its authority requires a delineation of the scope of the agency's authority and discretion, and consideration of whether on the facts, the agency's action can reasonably be said to be within that range." Id.

         Under the arbitrary and capricious standard, a court must ascertain " whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made." Id. The agency must provide a reasoned basis for its action and the action must be supported by the facts in the record. Id. at 1575. Agency action is arbitrary if not supported by " substantial evidence" in the administrative record. Olenhouse, 42 F.3d at 1575; Pennaco Energy, Inc. v. U.S. Dep't of Interior, 377 F.3d 1147, 1156 (10th Cir. 2004). " Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate

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to support a conclusion." Pennaco Energy, 377 F.3d at 1156 (quoting Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003)). " Because the arbitrary and capricious standard focuses on the rationality of an agency's decisionmaking process rather than on the rationality of the actual decision, '[i]t is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself.'" Olenhouse, 42 F.3d at 1575 (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Courts will not accept post-hoc rationalizations for agency action. Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036, 1060 (10th Cir. 2014). " The agency itself must supply the evidence of that reasoned decisionmaking in the statement of basis and purpose mandated by the APA." Int 7 Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. United States, 735 F.2d 1525, 1531, 237 U.S.App.D.C. 89 (D.C. Cir. 1984). See also Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53, 334 U.S.App.D.C. 98 (D.C. Cir. 1999) (rule's preamble serves as a source of evidence concerning contemporaneous agency intent).

         1. Whether BLM Has Authority to Regulate Hydraulic Fracturing

         " It is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). " Regardless of how serious the problem an administrative agency seeks to address, [] it may not exercise its authority 'in a manner that is inconsistent with the administrative structure that Congress enacted into law." ' Food and Drug Admin, v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988)). Accordingly, an " essential function" of a court's review under the APA is to determine " whether an agency acted within the scope of its authority." WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d 677, 683 (10th Cir. 2015).

         Where a case involves an administrative agency's assertion of authority to regulate a particular activity pursuant to a statute that it administers, the court's analysis is governed by Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Brown & Williamson, 529 U.S. at 132.

Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue. If Congress has done so, the inquiry is at an end; the court must give effect to the unambiguously expressed intent of Congress. But if Congress has not specifically addressed the question, a reviewing court must respect the agency's construction of the statute so long as it is permissible. Such deference is justified because the responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones, and because of the agency's greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated[.]

Id. (internal quotation marks and citations omitted). This Court must first determine, then, whether Congress has directly addressed the issue of BLM's authority to regulate hydraulic fracturing.

         The Supreme Court has provided the following guidance for determining whether Congress has specifically addressed the question at issue:

In determining whether Congress has specifically addressed the

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question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning--or ambiguity--of certain words or phrases may only become evident when placed in context. See Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (" Ambiguity is a creature not of definitional possibilities but of statutory context" ). It is a " fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989). A court must therefore interpret the statute " as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), and " fit, if possible, all parts into an harmonious whole," FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States v. Estate of Romani, 523 U.S. 517, 530-531, 118 S.Ct. 1478, 140 L.Ed.2d 710 (1998); United States v. Fausto, 484 U.S. 439, 453, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994).

Id. at 132-33. Guided by the foregoing principles, the Court finds that Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing not involving the use of diesel fuels.

         Despite having previously disavowed authority to regulate hydraulic fracturing,[5] the BLM now asserts authority to promulgate the Fracking Rule under various statutes: the Federal Land Policy and Management Act of 1976 (" FLPMA" ),[6] 43 U.S.C. § § 1701-1787; the Mineral Leasing Act of 1920 (" MLA" ), 30 U.S.C. § § 181-287; the 1930 Right-of-Way Leasing Act, id. § § 301-306; the Mineral Leasing Act for Acquired Lands, id. § § 351-360; the Federal Oil and Gas Royalty Management Act of 1982, id. § § 1701-1759; the Indian Mineral Leasing Act of 1938 (" IMLA" ), 25 U.S.C. § § 396a-396g; and the Indian Mineral Development Act of 1982 (" IMDA" ), id. § § 2101-2108. 80 Fed.Reg. at 16,217. The State Petitioners and Ute Indian Tribe argue none of these statutes authorize the BLM to regulate hydraulic fracturing activities.

         The MLA creates a program for leasing mineral deposits on federal lands.[7] Congress authorized the Secretary " to prescribe necessary and proper rules and regulations and to do any and all things

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necessary to carry out and accomplish the purposes of the [the MLA]." 30 U.S.C. § 189 (emphasis added). " The purpose of the Act is to promote the orderly development of oil and gas deposits in publicly owned lands of the United States through private enterprise." Geosearch, Inc. v. Andrus, 508 F.Supp. 839, 842 (D. Wyo. 1981) (citing Harvey v. Udall, 384 F.2d 883 (10th Cir. 1967)). See also Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 358 (8th Cir. 1984) (" broad purpose of the MLA was to provide incentives to explore new, unproven oil and gas areas through noncompetitive leasing, while assuring through competitive bidding adequate compensation to the government for leasing in producing areas" ). Specifically for oil and gas leasing, the MLA, inter alia, establishes terms of the lease and royalty and rental amounts (30 U.S.C. § § 223, 226(d)& (e)), requires the lessee to " use all reasonable precautions to prevent waste of oil or gas developed in the land" ( id. § 225), authorizes the Secretary of Interior to lease all public lands subject to the Act for oil and gas development ( id. § 226(a)),[8] directs the Secretary to regulate surface -disturbing activities ( id. § 226(g)), and allows for the establishment of cooperative development plans to conserve oil and gas resources ( id. § 226(m)).

         In the Right-of Way Leasing Act, Congress expanded the Secretary's leasing authority to allow leasing of federally owned minerals beneath railroads and other rights of way. 30 U.S.C. § 301. Like the MLA, the Right-of-Way Leasing Act grants the Secretary general rulemaking authority to carry out the Act. Id. § 306. The Mineral Leasing Act for Acquired Lands again extended the provisions of the MLA, including the Secretary's leasing authority, to apply to minerals beneath lands coming into federal ownership and not already subject to the MLA. 30 U.S.C. § § 351-52. Although, like the MLA, the Act grants the Secretary rulemaking authority to carry out the purposes of the Act, id. § 359, the Act simply expanded the BLM's authority to issue and manage leases for the development of specified minerals, including oil and gas. See Watt v. Alaska, 451 U.S. 259, 269, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). The Fracking Rule's authority section also cites the general rulemaking authority granted by the Federal Oil and Gas Royalty Management Act of 1982 (" FOGRMA" ). 30 U.S.C. § 1751. FOGRMA, however, simply creates a thorough system for collecting and accounting for federal mineral royalties. See Shell Oil Co. v. Babbitt, 125 F.3d 172, 174 (3rd Cir. 1997). The general rulemaking authority granted by these ancillary mineral leasing statutes, which is cabined by the purposes of the Acts, cannot be interpreted as authority for comprehensive regulation of hydraulic fracturing.

         The Secretary also invokes the statutory authority granted to the BLM by the Indian Mineral Leasing Act and the Indian Mineral Development Act as a basis for the Fracking Rule.[9] These statutes, generally, grant the Secretary broad regulatory jurisdiction over oil and gas development and operations on Indian lands. 25 U.S.C. § § 396d, 2107. However, neither the IMLA nor the IMDA delegates any more specific authority over oil and gas drilling operations than the MLA, nor has BLM promulgated separate regulations for

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operations on Indian lands. Rather, existing Bureau of Indian Affairs (" BIA" ) regulations incorporate 43 C.F.R. Part 3160 (Onshore Oil and Gas Operations -- General) and require BLM to oversee implementation of those regulations. 25 C.F.R. § § 211.4, 225.4. The Fracking Rule amends and revises the Part 3160 regulations. See 80 Fed.Reg. at 16, 217.

         BLM claims the Fracking Rule simply supplements existing requirements for oil and gas operations set out in 43 C.F.R. 3162.3-1 and Onshore Oil and Gas Orders 1, 2 and 7. 80 Fed.Reg. at 16,129. BLM asserts its decades-old " cradle-to-grave" regulations governing oil and gas operations, promulgated pursuant to its MLA § 189 authority, already include regulation of hydraulic fracturing, albeit minimally " because the practice was not extensive (or similar to present-day design) when the regulations were promulgated." ( Resp't Br. in Opp'n to Wyoming and Colorado's Mot. for Prelim. Inj. at 11) (ECF No. 68). Historically, however, BLM's only regulation addressing hydraulic fracturing worked to prevent any additional surface disturbance and impose reporting requirements and did not regulate the fracturing process itself.[10] See 43 C.F.R. § 3162.3-2(b) (" Unless additional surface disturbance is involved . . . prior approval is not required for routine fracturing or acidizing jobs . . . ; however, a subsequent report on these operations must be filed . . . ." ). This requirement makes sense because the MLA expressly authorizes regulation of " all surface -disturbing activities . . . in the interest of conservation of surface resources." 30 U.S.C. § 226(g) (emphasis added). The BLM cites to no other existing regulation addressing hydraulic fracturing. Neither does the BLM cite any specific provision of the mineral leasing statutes authorizing regulation of this underground activity or regulation for the purpose of guarding against any incidental, underground environmental effects. Indeed, the BLM has previously taken the position, up until formulation of the Fracking Rule, that it lacked the authority or jurisdiction to regulate hydraulic fracturing. See Center for Biological Diversity v. BLM, 937 F.Supp.2d 1140, 1156 (N.D. Cal. 2013).

When an agency claims to discover in a long-extant statute an unheralded power to regulate " a significant portion of the American economy," [the Court] typically greet[s] its announcement with a measure of skepticism. [The Court] expect[s] Congress to speak clearly if it wishes to assign to an agency ...

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