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State of Wyoming v. Zinke

United States Court of Appeals, Tenth Circuit

September 21, 2017

STATE OF WYOMING; STATE OF COLORADO; INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA; WESTERN ENERGY ALLIANCE, Petitioners - Appellees,
v.
RYAN ZINKE, Secretary, United States Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; UNITED STATES DEPARTMENT OF THE INTERIOR; KRISTIN BAIL, Respondents - Appellants, and STATE OF NORTH DAKOTA; STATE OF UTAH; UTE INDIAN TRIBE, Intervenors Petitioners -Appellees, and SIERRA CLUB; EARTHWORKS; WESTERN RESOURCE ADVOCATES; CONSERVATION COLORADO EDUCATION FUND; WILDERNESS SOCIETY;SOUTHERN UTAH WILDERNESS ALLIANCE, Intervenors Respondents, UNITED STATES CHAMBER OF COMMERCE; PETROLEUM ASSOCIATION OF WYOMING, FORMER OFFICIALS OF THE U.S. DEPARTMENT OF THE INTERIOR; INTERESTED PUBLIC LANDS, NATURAL RESOURCES, ENERGY, and ADMINISTRATIVE LAW PROFESSORS; PETROLEUM ASSOCIATION OF WYOMING, PACIFIC LEGAL FOUNDATION; WYOMING LIBERTY GROUP, STATE OF MONTANA; STATE OF ALASKA; STATE OF KANSAS; STATE OF TEXAS, Amici Curiae. STATE OF WYOMING; STATE OF COLORADO; INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA; WESTERN ENERGY ALLIANCE, Petitioners - Appellees, and STATE OF NORTH DAKOTA; STATE OF UTAH; UTE INDIAN TRIBE, Intervenors Petitioners -Appellees,
v.
SIERRA CLUB; EARTHWORKS; WESTERN RESOURCE ADVOCATES; CONSERVATION COLORADO EDUCATION FUND; WILDERNESS SOCIETY; SOUTHERN UTAH WILDERNESS ALLIANCE, Intervenors Respondents -Appellants, and RYAN ZINKE, Secretary, United States Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; UNITED STATES DEPARTMENT OF THE INTERIOR; KRISTIN BAIL, Respondents. UNITED STATES CHAMBER OF COMMERCE; PETROLEUM ASSOCIATION OF WYOMING, FORMER OFFICIALS OF THE U.S. DEPARTMENT OF THE INTERIOR; INTERESTED PUBLIC LANDS, NATURAL RESOURCES, ENERGY, and ADMINISTRATIVE LAW PROFESSORS; PETROLEUM ASSOCIATION OF WYOMING, PACIFIC LEGAL FOUNDATION; WYOMING LIBERTY GROUP, STATE OF MONTANA; STATE OF ALASKA; STATE OF KANSAS; STATE OF TEXAS, Amici Curiae.

         APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 2:15-CV-00043-SWS)

          Andrew C. Mergen, United States Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant Attorney General, William E. Gerard, David A. Carson, Nicholas A. Dimascio, and J. David Gunter II, United States Department of Justice, Environmental and Natural Resources Division, Denver, Colorado and Washington, DC; and Richard McNeer, Office of the Solicitor, United States Department of the Interior, Washington, DC, with him on the briefs), appearing for Appellants United States Bureau of Land Management, United States Department of the Interior, Kristin Bail, and Ryan Zinke.

          Michael S. Freeman, Earthjustice, Denver, Colorado (Joel Minor, Earthjustice, Denver, Colorado, and Nathan Matthews, Sierra Club, Oakland, California, with him on the briefs), appearing for Intervenor-Respondent-Appellants Sierra Club, Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, Wilderness Society, and Southern Utah Wilderness Alliance.

          James Kaste, Deputy Attorney General, Wyoming Attorney General's Office, Cheyenne, Wyoming (Peter K. Michael, Wyoming Attorney General, Michael J. McGrady, Senior Assistant Attorney General, and Erik Petersen, Senior Assistant Attorney General, Wyoming Attorney General's Office, Cheyenne, Wyoming; Sean D. Reyes, Utah Attorney General, Tyler Green, Solicitor General, Stanford E. Purser, Deputy Solicitor General, Steven F. Alder and Melissa Reynolds, Assistant Attorneys General, Utah Attorney General's Office, Salt Lake City, Utah; Frederick R. Yarger, Solicitor General, Colorado Attorney General's Office, Denver, Colorado, with him on the brief), appearing for Appellees State of Wyoming, State of Utah, and State of Colorado.

          Paul M. Seby, Special Assistant Attorney General, Greenberg Traurig, Denver, Colorado; (Wayne K. Stenehjem, Attorney General, and Matthew A. Sagsveen, Assistant Attorney General, Office of the Attorney General for the State of North Dakota, Bismarck, North Dakota, with him on the briefs), appearing for Intervenor-Appellee State of North Dakota.

          Mark S. Barron (L. Poe Leggette and Alexander K. Obrecht, with him on the briefs), Baker & Hostetler, Denver, Colorado, appearing for Petitioners-Appellees Independent Petroleum Association of America and Western Energy Alliance.

          Jeffrey S. Rasmussen (Jeremy J. Patterson and Rebecca Sher, with him on the brief), Fredericks Peebles & Morgan, LLP, Louisville, Colorado, appearing for Appellee Ute Indian Tribe of the Uintah and Ouray Reservation.

          Kevin J. Lynch and Brad Bartlett, Sturm College of Law, University of Denver, Denver, Colorado, filed an amicus curiae brief for Interested Public Lands, Natural Resources, Energy, and Administrative Law Professors.

          Susannah L. Weaver and Sean H. Donahue, Donahue & Goldberg, LLP, Washington, DC, filed an amicus curiae brief for former officials of the U.S. Department of the Interior.

          Jaimie N. Cavanaugh and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, filed an amicus curiae brief for Petroleum Association of Wyoming.

          M. Reed Hopper and Jonathan Wood, Pacific Legal Foundation, Sacramento, California, filed an amicus curiae brief for Wyoming Liberty Group.

          Timothy C. Fox, Attorney General for the State of Montana, and Tommy H. Butler, Deputy Attorney General for the State of Montana, Helena, Montana; Jahna M. Lindemuth, Attorney General of the State of Alaska, Juneau, Alaska; Derek Schmidt, Attorney General for the State of Kansas, Topeka, Kansas; Ken Paxton, Attorney General for the State of Texas, Austin, Texas, filed an amicus curiae brief for the States of Montana, Alaska, Kansas, and Texas.

          Steven P. Lehotsky and Sheldon B. Gilbert, United States Chamber Litigation Center; Jonathan S. Franklin, Norton Rose Fulbright U.S. LLP, Washington, DC, filed an amicus curiae brief for United States Chamber of Commerce.

          Before BRISCOE, HARTZ, and HOLMES, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         In these cases, we are asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it promulgated a regulation-43 C.F.R. § 3162.3-3 (2015)[1]-governing hydraulic fracturing (fracking) on lands owned or held in trust by the United States. The district court invalidated this regulation (hereinafter, the Fracking Regulation) as exceeding the BLM's statutory authority. While these appeals were pending, a new President of the United States was elected. After that change in Administration, and at the President's direction, the BLM began the process of rescinding the Fracking Regulation. Given these changed and changing circumstances, we conclude these appeals are prudentially unripe. As a result, we dismiss these appeals and remand with directions to vacate the district court's opinion and dismiss the action without prejudice.

         I

         A

         Fracking is a "well stimulation" technique that oil and gas producers use to extract greater volumes of oil and natural gas than is otherwise possible. During fracking, "oil and gas producers inject water, sand, and certain chemicals into tight-rock formations to create fissures in the rock that allow oil and gas to escape for collection in a well." Industry Petitioners Aple. Br. at 2. Chemicals are added in the injection process to delay pipe corrosion and kill unwanted bacteria, as well as for other purposes. Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 80 Fed. Reg. 16, 128, 16, 131 (Mar. 26, 2015).

         Although first used by the oil and gas industry in the 1940s, fracking became more effective and complex around 2000 once industry combined fracking with horizontal drilling. "A horizontally drilled well starts as a vertical or directional well, but then curves and becomes horizontal, or nearly so, allowing the wellbore [i.e., drilled hole] to follow within a rock stratum for significant distances and thus greatly increase the volume of a reservoir opened by the ...


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