Western Watersheds Project et al v. Zinke et al

MEMORANDUM DECISION AND ORDER Re: Plaintiffs' Motion for Preliminary Injunction and Preliminary Injunction. Granting in part and Denying in part {{30}} MOTION for Preliminary Injunction filed by Western Watersheds Project, Center fo r Biological Diversity. (No later than the close of the Court's business day on 9/28/18, Plaintiffs are required pursuant to Rule 65(c) to post $10,000.00 as security, in cash or by surety in a form compliant with applicable federal law.). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by

District of Idaho, idd-1:2018-cv-00187

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7 UNITED STATES DISTRICT COURT DISTRICT OF IDAHO WESTERN WATERSHEDS PROJECT, and Case No.: 1:18-cv-00187-REB CENTER FOR BIOLOGICAL DIVERSITY, MEMORANDUM DECISION AND Plaintiffs, ORDER RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION vs. (Docket No. 30) RYAN K. ZINKE, Secretary of Interior; DAVID BERNHARDT, Deputy Secretary of Interior; and and UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States, PRELIMINARY INJUNCTION Defendants, and, STATE OF WYOMING; WESTERN ENERGY ALLIANCE, Defendants-Intervenors. Pending before the Court is Plaintiffs' Motion for Preliminary Injunction (Dkt. No. 30). The Court has heard oral argument from counsel and has carefully considered the record. Being fully advised, the Court enters the following Memorandum Decision and Order: I. SUMMARY OF DECISION The Bureau of Land Management ("BLM") is a federal agency that, among other things, handles the leasing of oil and gas rights on certain federal lands. The procedures that BLM follows in doing so changed earlier this year when it put into place an Instruction Memorandum ("IM"), supplying new instructions to the agency's offices about how to handle such leases. This new directive is known as IM 2018-034. MEMORANDUM DECISION AND ORDER AND PRELIMINARY INJUNCTION - 1 7 Plaintiffs Western Watersheds Project and Center for Biological Diversity (collectively "WWP" or Plaintiffs) contend that IM 2018-034 unlawfully constrains environmental review of, and public participation in, BLM oil and gas lease decisions that affect and threaten sage-grouse populations and habitats across the western United States. WWP asks the Court to stop BLM, through a preliminary injunction, from conducting oil and gas lease sales under the procedures of IM 2018-034 and instead follow the requirements which existed previously – specifically those contained in IM 2010-117 (issued in 2010, during the prior presidential administration) – until the legal challenges to IM 2018-034 can be adjudicated on the merits. After the Complaint was filed, two parties, the State of Wyoming ("Wyoming") and an oil and gas industry association known as Western Energy Alliance ("WEA"), asked the Court to allow their intervention to participate in the lawsuit, which the Court allowed. On September 6, 2018, the Court conducted a hearing to consider WWP's request for a preliminary injunction. The Court took under advisement the arguments of the parties, both in the written briefing and the oral argument, and now issues this Memorandum Decision and Order upon the Motion for a Preliminary Injunction. Under the legal standards that apply to preliminary injunctions and the requirements of federal law found in the Federal Land Policy and Management Act ("FLPMA"), the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA"), the Court concludes that Plaintiffs have shown a substantial case for success on the merits of their claims and that irreparable harm is likely to result in the absence of an injunction. Further, the Court concludes, after a weighing of the equities and the public interest, that such equities tip in favor of, and the public interest is best served by, granting the Motion. Although this Memorandum Decision and Order reflects that the Court is persuaded on the present record that Plaintiffs have a likelihood of success on the merits, this is not a final decision on the merits of the case. MEMORANDUM DECISION AND ORDER AND PRELIMINARY INJUNCTION - 2 7 The preliminary injunction requires that, for oil and gas leases scheduled for the fourth quarter of 2018 and thereafter, BLM must (1) re-implement certain provisions contained in IM 2010-117 as to the nature of, and time periods for, public involvement and protest in the oil and gas leasing process; and (2) discontinue the use of conflicting procedures contained in IM 2018- 034. In general, the requirement that BLM return to the provisions of IM 2010-117 on these specific matters will allow a fuller opportunity for public involvement and comment in BLM's decision-making processes affecting potential oil and gas leases on federal lands in areas of federally-recognized sage-grouse habitat. Doing so will remedy for present purposes the harm and hardships caused by BLM's curtailment or preclusion of the opportunity for meaningful public participation in the oil and gas leasing process (as implemented in IM 2018-034), which on the present record appears to violate public participation requirements of both FLPMA and NEPA. Further, the requirements of the preliminary injunction will serve the public interest by providing BLM with the benefit of more meaningful public participation in the agency decision- making process. The details of what is required of BLM to comply with the preliminary injunction are found in the body of this Memorandum Decision and Order. The preliminary injunction does not apply to BLM oil and gas lease procedures on federal lands that are not within federally-recognized boundaries encompassing greater sage- grouse habitat management areas (as described and depicted more fully below). Plaintiffs contend that their standing to bring this lawsuit and the alleged injuries they have suffered or will suffer are directly tied to those areas of the federally-owned or federally-managed lands. Further, the preliminary injunction does not apply to oil and gas leases that have been the subject of sales already conducted or that are currently scheduled in the remainder of the third quarter of 2018. For those oil and gas leases, the weighing of the hardships and the public interest does not tip in favor of Plaintiffs, but rather tips in Defendants' favor, and those who have received such MEMORANDUM DECISION AND ORDER AND PRELIMINARY INJUNCTION - 3 7 leases or are bidding, or have bid, upon such leases. Finally, the preliminary injunction does not affect the existing six-month "Parcel Review Timeframe" implemented in IM 2018-034. II. BACKGROUND Broadly speaking, this case challenges what WWP contends are unlawful actions by the Trump Administration, through Federal Defendants, to promote and expedite oil and gas leasing on public lands that, according to WWP, "will adversely impact essential habitats and populations across the range of the greater sage-grouse. . ., and violate bedrock environmental laws including [FLPMA], [NEPA], and the [APA]." Compl. ¶ 1 (Dkt. 1). More specifically, WWP alleges that Federal Defendants have issued a series of orders, scientific reports, and directives that cast aside and disregard previously implemented protections for sage-grouse populations. At the same time, contends WWP, such actions also limit or preclude opportunities for public involvement during the oil and gas leasing process – materializing (as of the time that WWP initiated this case) in eight "final" BLM oil and gas lease sales (three in Montana, one in Utah, and four in Wyoming) that impact sage-grouse habitats. See id. at ¶¶ 1-14, 73-225. WWP challenges these leasing actions as violating the 2015 Sage-Grouse Plan Amendments to BLM Resource Management Plans, FLPMA, NEPA, and the APA. See id. at ¶¶ 276-307. WWP additionally challenges two recently-implemented BLM IMs that WWP claims revised BLM oil and gas leasing and development decision process without any public procedures (notice and comment) or environmental review: (1) IM 2018-026, which overrides the "prioritization" requirement of the 2015 Sage-Grouse Plan Amendments (prioritizing oil and gas leasing outside of identified sage-grouse habitat); and (2) IM 2018-034, which impacts environmental analysis of oil and gas leasing and development decisions, while limiting public notice and involvement in those decisions. See id. at ¶¶ 98-112. The pending motion for injunctive relief pertains to IM 2018-034 only. MEMORANDUM DECISION AND ORDER AND PRELIMINARY INJUNCTION - 4 7 Issued on January 31, 2018, IM 2018-034 contains this language as to its claimed purpose: Purpose: This Instruction Memorandum (IM) sets out the policy of the Bureau of Land Management (BLM) to simplify and streamline the leasing process to alleviate unnecessary impediments and burdens, to expedite the offering of lands for lease, and to ensure quarterly oil and gas lease sales are consistently held in accordance with the Mineral Leasing Act (30 U.S.C. § 226), Executive Order 13783, and Secretary Order 3354. IM 2018-034, "Purpose" p. 1, attached as Ex. A to Lucas Decl. (Dkt. 30-11). IM 2018-034 "supersedes existing policy" contained in IM 2010-117 and replaces "any conflicting guidance or directive found in the BLM Manual or Handbook." Id. According to WWP, BLM issued IM 2018-034 without any public notice, comment, or environmental review, and directs BLM offices to discard procedures under the previous IM 2010-117 for environmental reviews and limit public involvement in oil and gas leasing decisions. Such action, WWP contends, violates FLPMA, NEPA, and the APA. WWP seeks injunctive relief prohibiting Federal Defendants from implementing certain IM 2018-034's provisions, while reinstating corresponding provisions from IM 2010-117 – in particular:  Enjoin IM 2018-034, Section III.A – "Parcel Review Timeframes" and reinstate IM 2010-117, Section III.A – "Parcel Review Timeframes";  Enjoin IM 2018-034, Section III.B.5 – "Public Participation" and reinstate IM 2010-117, Section III.C.7 – "Public Participation";  Enjoin IM 2018-034, Section III.D – "NEPA Compliance Documentation" and reinstate IM 2010-117, Section III.E – "NEPA Compliance Documentation"; and  Enjoin IM 2018-034, Section IV.B – "Lease Sale Parcel Protests" and reinstate IM 2010-117, Section III.H – "Lease Sale Parcel Protests." See WWP's Mot. for PI 2 (Dkt. 30). A comparison of the pertinent language from the two IMs (with supplied emphases) illustrates the different templates they provide for oil and gas leasing: MEMORANDUM DECISION AND ORDER AND PRELIMINARY INJUNCTION - 5 7 Enjoin IM 2018-034 Reinstate IM 2010-117 § III.A – Parcel Review Timeframes § III.A. – Parcel Review Timeframes State/field offices are required, by statute, State offices will continue to hold sales four times per and implementing regulation, to hold year, as required by the Mineral Leasing Act. . ., quarterly lease sales, when eligible lands when eligible lands are determined by the state office are available for lease. Lease sales should to be available for leasing. However, state offices occur in the last month of each calendar will develop a sales schedule with an emphasis on year quarter. rotating lease parcel review responsibilities among field offices throughout the year to balance the The BLM accepts Expressions of Interest workload and to allow each field office to devote (EOI) in lands for potential leasing through sufficient time and resources to implementing the the National Fluids Lease Sale System parcel review policy established in this IM. State (NFLSS). Members of the public submit offices will extend field office review timeframes, as EOIs electronically to the BLM using necessary, to ensure there is adequate time for the NFLSS. Once submitted, the public can field offices to conduct comprehensive parcel view all EOIs submitted to the BLM. The reviews. EOI submitter can track its EOI status using the EOI-specific tracking number provided [No timeframe for parcel review] by NFLSS. NFLSS can display the dates when the EOI was submitted to, and accepted by, the BLM, and its status, such as pending review by the state office, field office, or surface management agency. The BLM also uses the NFLSS to describe lands that the BLM has identified for leasing consideration. NFLSS provides a link to upcoming lease sales. The BLM will identify in NFLSS a deadline for receiving EOIs for each upcoming sale. The deadline will be six months prior to the lease sale month. This EOI deadline also will be posted on the state office website