United States District Court, D. New Mexico
DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; WILDEARTH GUARDIANS; and NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs,
SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT, an agency within the United States Department of the Interior; and NEIL KORNZE, in his official capacity as Director of the United States Bureau of Land Management, Defendants,
and WPX ENERGY PRODUCTION, LLC; ENCANA OIL & GAS (USA) INC.; BP AMERICA COMPANY; CONOCOPHILLIPS COMPANY; BURLINGTON RESOURCES OIL & GAS COMPANY LP; AMERICAN PETROLEUM INSTITUTE; and ANSCHUTZ EXPLORATION CORPORATION, Intervenor-Defendants.
Tisdel Western Environmental Law Center Taos, New Mexico and
Samantha Ruscavage-Barz WildEarth Guardians Santa Fe, New
Mexico Attorneys for the Plaintiffs
Jeffrey H. Wood Acting Assistant Attorney General Justin Alan
Torres Trial Attorney Environment and Natural Resources
Division United States Department of Justice Washington, D.C.
and Clare Marie Boronow Trial Attorney Environment and
Natural Resources Division United States Department of
Justice Denver, Colorado Attorneys for the Defendants
Hadassah M. Reimer Holland & Hart LLP Jackson, Wyoming
and Bradford C. Berge Holland & Hart LLP Santa Fe, New
Mexico and John Fredrick Shepherd Holland & Hart LLP
Denver, Colorado Attorneys for Intervener-Defendants WPX
Energy Production, LLC; Encana Oil & Gas (USA) Inc.; BP
America Production Company; ConocoPhillips Company;
Burlington Resources Oil & Gas Company LP; and Anschutz
Michael R. Comeau Jon J. Indall Joseph E. Manges Comeau,
Maldegen, Templeman & Indall, LLP Santa Fe, New Mexico
and Steven Rosenbaum Bradley Ervin Covington & Burling,
LLP Washington, D.C. and Andrew Schau Covington &
Burling, LLP New York City, New York Attorneys for
Intervenor-Defendant American Petroleum Institute
MEMORANDUM OPINION AND AMENDED ORDER
MATTER comes before the Court on the Plaintiffs'
Opening Merits Brief, filed April 28, 2017 (Doc.
112)(“Diné Brief”). The primary issues
are: (i) whether the Plaintiffs have standing to pursue their
claims under the National Environmental Policy Act, 42 U.S.C.
§§ 4321 to 4370m-12 (“NEPA”) and the
National Historic Preservation Act, 16 U.S.C. §§
470 to 470x-6 (“NHPA”); (ii) whether the
Plaintiffs are challenging final agency action within the
meaning of the Administrative Procedure Act, 5 U.S.C. §
704 (“APA”); (iii) whether any of the
Plaintiffs' challenges to various Applications for Permit
to Drill (“APDs”) are moot; (iv) whether
Defendant United States Bureau of Land Management
(“BLM”) violated NEPA by failing to adequately
consider the environmental impacts of hydraulic fracturing
and horizontal drilling in developing the Mancos Shale in the
San Juan Basin; (v) whether the BLM adequately involved the
public in its NEPA process; (vi) whether the BLM violated the
NHPA for failing to consider the indirect effects that well
pads would have on Chaco Culture National Historic Park,
Chacoan Outliers, the Chaco Culture Archaeological Protection
Sites, and the Great North Road (collectively “Chaco
Park and its satellites”); and (vii) if there is a NEPA
or NHPA violation, whether the proper remedy is remand
without vacatur, remand with vacatur, or a permanent
injunction. The Court concludes that: (i) the Plaintiffs have
standing to pursue their NEPA and NHPA claims; (ii) the
Plaintiffs may challenge most, but not all, of the APDs under
the APA; (iii) the Plaintiffs' APD challenges are not
moot, except as to permanently abandoned wells; (iv) the BLM
complied with NEPA's requirements; (v) the BLM adequately
involved the public in its NEPA process, as it gave notice of
finalized Environmental Assessments' (“EAs”)
availability through its online NEPA logs, and sent notices
of and hosted public meetings at each proposed well's
site; (vi) the BLM did not violate the NHPA, because it
considered the effects on historical sites within the
wells' areas of potential effects; and (vii) if the BLM
had violated NEPA or the NHPA, vacatur with remand would be
the proper remedy for the NEPA violation, but remand without
vacatur would be the proper remedy for the NHPA violation.
Accordingly, the Court denies the requests in the Diné
Court divides its factual background into five sections.
First, the Court will introduce the parties. Second, it will
discuss oil-and-gas development in the San Juan Basin -- a
petroleum-rich geologic structural basin in the Four Corners
region of the States of New Mexico and Colorado, which,
although sparsely populated, is home to many Navajo Native
Americans, also known as the Diné. See Diné
Citizens Against Ruining Our Environment v. Jewell, No.
CIV 15-0209, 2015 WL 4997207, at *2 (D.N.M. 2015)(Browning,
J.)(“Dine”). Third, it will explain the
BLM's oil-and-gas planning and management framework.
Fourth, it will outline the timeline of events giving rise to
this case. Finally, it will discuss the BLM's
relationship with the NHPA.
Diné Citizens Against Ruining Our Environment
(“Diné CARE”) is an organization of Navajo
community activists in the Four Corners region. See
Dine, 2015 WL 4997207, at *2. Diné CARE's
stated goal is to protect all life in its ancestral homeland
by empowering local and traditional people to organize, speak
out, and ensure conservation and stewardship of the
environment through civic involvement. See Dine,
2015 WL 4997207, at *2. Plaintiff San Juan Citizens Alliance
(“San Juan Alliance”) is an organization
dedicated to social, economic, and environmental justice in
the San Juan Basin. See Dine, 2015 WL 4997207, at
*2. Plaintiff WildEarth Guardians is a non-profit membership
organization with over 65, 000 members and activists and is
based in Santa Fe, New Mexico, with offices throughout the
western United States of America. See Dine, 2015 WL
4997207, at *3. Plaintiff Natural Resources Defense Council
is a nonprofit environmental membership organization with
more than 299, 000 members throughout the United States,
approximately 3, 360 of whom reside in New Mexico. See
Dine, 2015 WL 4997207, at *3.
The Plaintiff Organizations' Members.
Eisenfeld is a member of San Juan Alliance and WildEarth
Guardians. See Declaration of Mike Eisenfeld ¶
1, at 1 (executed April 25, 2017), filed April 28, 2017 (Doc.
112-1)(“Eisenfeld Decl.”). He has visited Chaco
Park -- a historic site in the San Juan Basin -- at least
annually since 1997. See Eisenfeld Decl. ¶ 5,
at 2. He last visited there in July, 2016. See
Eisenfeld Decl. ¶ 5, at 2. He also regularly visits
“the greater Chaco region, including areas in and
around Counselor, Lybrook, and Nageezi, ” New
Eisenfeld Decl. ¶ 5, at 2. He last visited the
“Nageezi area” on April 20, 2017, and intends to
return in May and June of 2017. Eisenfeld Decl. ¶ 5, at
2. He contends that the BLM has approved various APDs after
conducting EAs that were not available for the public,
including himself, to review. See Eisenfeld Decl.
¶ 9, at 4-5. Specifically, Eisenfeld checked the
BLM's website and visited its public reading room
throughout 2014, and on October 2, 2014, “no NEPA
documentation was available to the public.” Eisenfeld
Decl. ¶ 11, at 6.
to Eisenfeld, the BLM's approval of these APDs
“threatens to irreparably harm [his] personal and
professional interest in an intact Chacoan landscape . . . by
impacting important environmental (air, water, treasured
landscapes), historical, and cultural resources.”
Eisenfeld Decl. ¶ 9, at 5 (alteration added). Eisenfeld
states that he has visited hundreds of well sites in the
“greater Chaco area” and has “frequented
lands where many other Mancos Shalewells are in view.” Eisenfeld Decl.
¶ 12, at 6. Eisenfeld alleges that the BLM has allowed
“APD proponents to flare natural gas in the greater
Chaco area when drilling for oil.” Eisenfeld Decl.
¶ 13, at 6. According to Eisenfeld, this flaring harms
the air quality and his health, and “compromises the
night sky” in the Chaco Park area. Eisenfeld Decl.
¶ 13, at 6-7. Eisenfeld states that the APD approvals
have also “compromised noted archeological
sites.” Eisenfeld Decl. ¶ 13, at 7. Eisenfeld
states that he is “harmed by the lack of government
agency compliance in evaluating the direct, indirect,
cumulative and connected impacts of operations approved by
BLM.” Eisenfeld Decl. ¶ 16, at 8.
2010-2012, Eisenfeld visited some Mancos Shale wells amongst
the communities of Counselor, Lybrook, and Nageezi.
See Supplemental Declaration of Mike Eisenfeld
¶ 3, at 2 (executed July 26, 2017), filed July 28, 2017
(Doc. 117-3)(“Eisenfeld Supp. Decl.”). He visited
“over 150 WPX [and] Encana . . . wells being drilled and developed in
the Mancos Shale.” Eisenfeld Supp. Decl. ¶ 3, at 2
(alteration added). Specifically, he has visited well sites
called “Encana Lybrook, Gallo Canyon Unit and Escrito
wells, and WPX Chaco unit wells.” Eisenfeld Supp. Decl.
¶ 3, at 2. At these well sites, Eisenfeld has seen
“drilling, flaring, hydraulic fracturing, nitrogen
treatment, fracking trucks, chemical storage and an endless
stream of activity.” Eisenfeld Supp. Decl. ¶ 4, at
2. Eisenfeld states that “the flaring of natural gas
from the Mancos Shale oil wells have been visually apparent .
. . [, ] representing waste, pollution and lost
revenue/royalties.” Eisenfeld Supp. Decl. ¶ 6, at
3. Eisenfeld states that the resulting fumes, reckless truck
travel, and even exploding wells have made him feel unsafe
when traveling in the Mancos Shale area. See
Eisenfeld Supp. Decl. ¶ 7, at 4. Eisenfeld notes that an
explosion occurred on a well pad in Nageezi in 2016, and he
states that he fears that additional explosions may follow
“as long as Mancos Shale development is allowed to
proceed unimpeded and unanalyzed.” Eisenfeld Supp.
Decl. ¶ 8, at 4. Eisenfeld also submits to the Court
photographs that “show clustered WPX wells, a producing
Mancos Shale oil well, a well site with three active flares,
and a five-acre well pad where Mancos Shale oil is being
drilled for.” Eisenfeld Supp. Decl. ¶ 8, at 4.
Nichols is a member of WildEarth Guardians. See
Declaration of Jeremy Nichols ¶ 2, at 2 (executed April
27, 2017), filed April 28, 2017 (Doc. 112-2)(“Nichols
Decl.”). Nichols states that he visited “the
Chaco outlier ruin of Pueblo Pintado” in March, 2017.
Nichols Decl. ¶ 5, at 3. He visited Chaco Park in March,
2008, March, 2012, April, 2013, and May, 2015. See
Nichols Decl. ¶ 5, at 4-5. Nichols states that he
intends to continue visiting “the Greater Chaco region,
including [Chaco Park] and its outliers . . . at least once a
year for the foreseeable future.” Nichols Decl. ¶
6, at 6. He states that he intends to visit “this
area” again in June, 2017, when he has a trip planned.
Nichols Decl. ¶ 6, at 6. Nichols states that he does not
recall any oil-and-gas development in the area in 2008, but
by 2014, “there were rigs seemingly all over the place,
around Nageezi and the road to [Chaco Park].” Nichols
Decl. ¶ 7, at 6-7. According to Nichols, during his last
visit, “there were extensive oil and gas well
facilities and infrastructure in the area, particularly
around Nageezi and Lybrook.” Nichols Decl. ¶ 7, at
7. Nichols states that this new oil-and-gas development
“has detracted significantly from [his] enjoyment of
the Greater Chaco area, ” and has “significantly
eroded the natural and remote nature of the region.”
Nichols Decl. ¶ 8, at 7 (alteration added). According to
Nichols, the oil-and-gas development has also created
“smells, dust, and more industrialization, ”
which are “aesthetically displeasing.” Nichols
Decl. ¶ 9, at 7. Nichols states that, “[i]f the
BLM were prohibited from approving new drilling permits in
this area until it developed a new plan . . . [, ] it would
diminish the harms to [his] recreational enjoyment of the
area and likely ensure that [his] future visits with friends
and family will be more enjoyable than they currently
are.” Nichols Decl. ¶ 12, at 9 (alteration
Green represents that she is a member of the Natural
Resources Defense Council. See Declaration of
Deborah Green ¶ 3, at 2 (executed April 14, 2017), filed
April 28, 2017 (Doc. 112-3)(“Green Decl.”). Green
states that she visits Chaco Park “at least once a
year.” Green Decl. ¶ 4, at 2. Green intends to
return to Chaco Park “this fall” (referring to
fall 2017) and “in the future.” Green Decl.
¶ 6, at 2. Green states that oil-and-gas development
“in the Chaco Canyon area/region and [Chaco Park]”
would harm Green's visitor experience, because of
potential air, noise, and light pollution, large truck
traffic, and the possibility of “soil and groundwater
contamination due to drilling practices.” Green Decl.
¶ 7, at 2-3. Green states that she also has
“concerns” regarding the use of hydraulic
fracturing (“fracking”) “in the Chaco Canyon area/region
and Chaco [Park], ” because fracking may contaminate
the area's groundwater. Green Decl. ¶ 8, at 3. Green
explains that, if the Court vacates the BLM's approvals
of APDs, then she “will be able to continue using the
Chaco Canyon area/region and [Chaco Park] for hiking,
camping, and spiritual contemplation.” Green Decl.
¶ 9, at 3. Green states that she has experienced several
environmental problems while driving along Highway 550 to
Chaco Canyon, including air pollution from gas flares,
exhaust from oil- and-gas trucks, noise pollution from heavy
truck traffic, and light pollution from nighttime drilling.
See Supplemental Declaration of Deborah Green ¶
8, at 3 (executed July 27, 2017), filed July 28, 2017 (Doc.
117-4)(“Green Supp. Decl.”).
Miura represents that she lives in the Cochiti Pueblo,
 which is
“about a three hour drive . . . to the Chaco Canyon
area/region.” Declaration of Hope Miura ¶ 1, at 2
(executed April 17, 2017), filed April 28, 2017 (Doc.
112-4)(“Miura Decl.”). Miura states that she is a
member of the Natural Resources Defense Council. See
Miura Decl. ¶ 2, at 2. Miura states that she has visited
Chaco Park, and she plans to return there “next year,
and in the future.” Miura Decl. ¶ 5, at 2.
According to Miura, oil-and-gas development “in the
Chaco Canyon area/region and [Chaco Park]” would
“ruin the views and tranquility of the Chaco Canyon
area.” Miura Decl. ¶ 6, at 2. Miura states that
she is concerned that fracking in the area may cause
earthquakes, and “damage the rock formations and sacred
sites where Native Americans have their ancestral
ceremonies.” Miura Decl. ¶ 7, at 2-3. Miura also
states that she is “concerned about the effects of oil
and gas development on air quality in the area, including
toxic fumes.” Miura Decl. ¶ 7, at 3. Miura
contends that if the Court vacates the BLM's approvals of
APDs, then she “would be able to continue to visit this
area and feel much better about the air quality and the
preservation of the archeology.” Miura Decl. ¶ 8,
Trujillo represents that she is the Director of Membership
for the Natural Resources Defense Council. See
Declaration of Gina Trujillo ¶ 1, at 1 (dated April 30,
2017), filed April 28, 2017 (Doc. 112-5)(“Trujillo
Decl.”). Trujillo asserts that the Natural Resources
Defense Council's mission is “to safeguard the
Earth; its people, its plants and animals, and the natural
systems on which all life depends.” Trujillo Decl.
¶ 6, at 2. Trujillo states that protecting Chaco Park
and the Chaco Canyon area from damaging oil-and-gas
operations “is paradigmatic” of the
organization's efforts “to defend endangered wild
places and natural habitats.” Trujillo Decl. ¶ 7,
Pinto represents that she is a member of the Navajo Nation
and of Diné CARE. See Declaration of Kendra
Pinto ¶ 1, at 1 (executed July 26, 2017), filed July 28,
2017 (Doc. 117-2)(“Pinto Decl.”). Pinto states
that she lives in Twin Pines, New Mexico, which is located on
Highway 550 at the San Juan County line. See Pinto
Decl. ¶ 1, at 1. Pinto states that, since the
“start of oil exploration in the Mancos Shale
Formation, [she has] seen an increase in truck traffic,
public safety risks, violent crimes, and drug use.”
Pinto Decl. ¶ 5, at 2 (alteration added). She adds that
she has “noticed headaches, blurry vision, occasional
stomach issues, fatigue, and allergies.” Pinto Decl.
¶ 5, at 2. She states that she often sees
“fracking truck traffic” on the highway, which
“contributes to the fear of safety.” Pinto Decl.
¶ 8, at 2. Pinto states that she has had “numerous
encounters with this truck traffic” and was
“almost rear ended by a truck carrying liquid
nitrogen.” Pinto Decl. ¶ 9, at 3. According to
Pinto, “there is always a danger” where she
lives. Pinto Decl. ¶ 9, at 3. Pinto states that she has
been to areas that are “very potent in natural gas
odors, ” and has seen “the giant pillars of
fire” from flaring, which are “scary, loud, and
excessive.” Pinto Decl. ¶ 10, at 3. Pinto states
that “there is no escaping the gases, traffic, noise
pollution, and sound pollution.” Pinto Decl. ¶ 10,
at 3. Pinto states that she regularly visits Chaco Park and
enjoys observing the dark sky from there, but “the
lights staged at well sites can be as bright as stadium
lights.” Pinto Decl. ¶ 11, at 3. Pinto states that
she has also dealt with these bright lights being pointed at
the highway, prohibiting her from seeing the road.
See Pinto Decl. ¶ 11, at 3.
Ryan Zinke is the Secretary of the United States Department
of the Interior. See Diné Brief at 12 n.1.
Defendant Michael Nedd is the Acting Director of the BLM.
See Diné Brief at 12 n.1. The BLM is an agency within the
United States Department of the Interior that is responsible
for managing public lands and resources in New Mexico,
including federal onshore oil-and-gas resources. See
18 C.F.R. § 270.401(b)(15).
American Petroleum Institute (“the API”) is the
primary national trade association of the oil-and-gas
industry, representing more than 625 companies involved in
all aspects of that industry, including some that drill in
the Mancos Shale. See Dine, 2015 WL 4997207, at *3.
Intervener-Defendants WPX Energy Production, LLC, Encana Oil
& Gas (USA) Inc., BP America Production Company,
ConocoPhillips Company, Burlington Resources Oil & Gas
Company LP, and Anschutz Exploration Corporation
(collectively, “the Operators”) are all oil
companies, and each of them owns leases or drilling permits
over the Mancos Shale. See Dine, 2015 WL 4997207, at
Oil-and-Gas Development in the San Juan
Juan Basin in northwestern New Mexico is one of the largest
oil-and-gas fields in the United States and has been
producing for over fifty years. See Farmington
Proposed Resource Management Plan and Final Environmental
Impact Statement at 1 (dated September,
23, 000 wells are currently producing.” Finding of No.
Significant Impact WPX Energy Production, LLC's West
Lybrook UT Nos. 701H, 702H, 703H, 704H, 743H and 744H at 2
fracking was introduced in 1949, “nearly every well in
the San Juan Basin has been fracture stimulated.” FONSI
at 2 (A.R.0232032). Fracking is the process of
“injecting fracturing fluids into the target formation
at a force exceeding the parting pressure of the rock, thus
inducing fractures through which oil or natural gas can flow
to the wellbore.” Hydraulic Fracturing White Paper at
6 (dated October 1, 2014)(A.R.0149866)(“White
Paper”). Fracking and horizontal drilling are commonly
used to access the Mancos Shale. See Unconventional
Gas Reservoirs, Hydraulic Fracturing and the Mancos Shale at
Fracturing”). Horizontal drilling refers to a technique
in which the wellbore is drilled down to the target
formation, and then turns horizontally so that the well
encounters as much of the reservoir as possible. See
Hydraulic Fracturing at 6 (A.R.0155550).
drilling places a well pad directly above the bottom hole,
while directional and horizontal drilling allows for
flexibility in the placement of the well pad and associated
surface facilities.” Environmental Assessment
DOI-BLM-NM F010-2016-0204/IT4RM-FO10-2016-0081 at 16 (dated
April, 2016)(A.R.0236483)(“2016 EA”).
“Directional or horizontal drilling often allows for
‘twinning, ' or drilling two or more wells from one
shared well pad.” 2016 EA at 16 (A.R.0236483).
“Generally, the use of this technology is applied when
it is necessary to avoid or minimize impacts to surface
resources.” 2016 EA at 16 (A.R.0236483). Indeed, one
objective of horizontal drilling is to avoid surface
occupancy “due to topographic or environmental
concerns.” Oil and Gas Resource Development for San
Juan Basin, New Mexico a 20-year Reasonable Foreseeable
Development Scenario Supporting the Resource Management Plan
for the Farmington Field Office, Bureau of Land Management at
8.1 (dated July 2, 2001)(A.R.0000111)(“RFDS”).
San Juan Alliance once stated that “[a]lternative
drilling methods such as horizontal drilling would, if used
in the San Juan basin, reduce adverse impacts such as noise,
air pollution, and scarred landscapes from wells and roads.
Why can't several wells be drilled from one location? The
BLM must consider/require feasible technical alternatives
such as horizontal drilling.” Appendix P-Public
Comments and Responses Farmington Proposed RMP/Final EIS at
P-123 (dated 2002)(A.R.0001847)(“San Juan
area in which the BLM has approved the Mancos Shale APDs
already contains hundreds of existing wells. See
Reasonable Foreseeable Development for Northern New Mexico
Final Report at 19 (dated October,
2014)(A.R.0173844)(“2014 RFDS”). Further, many
proposed Mancos Shale wells use existing oil-and-gas
infrastructure. See Environmental Assessment
DOI-BLM-NM-F010-2015-0036 at 1 (dated November,
The BLM's Oil-and-Gas Planning and Management
manages onshore oil-and-gas leasing and development via a
three-phase process. The first phase involves preparing a
Resource Management Plan (“RMP”) and an
Environmental Impact Statement (“EIS”). 43 C.F.R.
§ 1601.0-6. “Resource management plans are
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. “[W]herever possible, the proposed plan and
related environmental impact statement shall be published in
a single document.” 43 C.F.R. § 1601.0-6.
The EIS is the comprehensive, gold-standard document: it is
subject to notice-and-comment provisions; “[i]t shall
provide full and fair discussion of significant environmental
impacts and shall inform decisionmakers and the public of
reasonable alternatives which would avoid or minimize adverse
impacts or enhance the quality of the human
environment”; and it “is more than a disclosure
document, ” but rather, “[i]t shall be used by
Federal officials in conjunction with other relevant material
to plan actions and make decisions.”
Dine, 2015 WL 4997207, at *40 (quoting 40 C.F.R.
§ 1502.1)(alterations in Dine). The BLM must
prepare a supplement to its EIS if “the agency makes
substantial changes in the proposed action that are relevant
to environmental concerns, or there are significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its
impacts.” 40 C.F.R. § 1502.9(c)(1)(i)-(ii).
second phase, the BLM sells and executes oil-and-gas leases.
See 43 C.F.R. § 3120.1-1. The BLM “may
require stipulations as conditions of lease issuance.”
43 C.F.R. § 3101.1-3. Third, and at issue in this case,
the lessee submits an APD to the BLM, and “no drilling
operations, nor surface disturbance preliminary thereto, may
be commenced prior to the authorized officer's approval
of the permit.” 43 C.F.R. § 3162.3-1(c).
The Timeline of Events Giving Rise to this
2001, the BLM issued a Reasonably Foreseeable Development
Scenario (“RFDS”) as part of the process of
revising its Resource Management Plan for the San Juan Basin.
See RFDS at 1 (A.R.0000001). This document's
purpose was to forecast the scope of oil-and-gas development
in the San Juan Basin over the next twenty years, from
approximately 2002 to 2022. See RFDS at vi
RFDS focuses on the New Mexico portion of the San Juan Basin
“to determine the subsurface development supported by
geological and engineering evidence, and to further estimate
the associated surface impact of this development.”
RFDS at 6 (A.R.0000006). The RFDS discusses the Mancos Shale,
and states that “most existing Manco Shale . . .
reservoirs are approaching depletion and are marginally
economic. Most are not currently considered candidates for
increased density development or further enhanced oil
recovery operations.” RFDS at 5.24 (A.R.0000081). It
notes, however, that “there is considerable interest in
developing the Mancos Shale as a gas reservoir over a large
part of the basin where it has not been previously
developed.” RFDS at 5.23 (A.R.0000080).
2003, the BLM issued its Resource Management
Plan/Environmental Impact Statement. See Farmington
Resource Management Plan with Record of Decision at 1 (dated
December 2003)(A.R.0001931)(“RMP/EIS”). The
RMP/EIS provided for the development of 9, 942 new
oil-and-gas wells. See RMP/EIS at 2, 10
(A.R.0001946, A.R.0001954). Since the RMP/EIS was issued,
“3, 945 wells have been drilled in the planning area,
or about 39 percent of the 9, 942 wells predicted and
analyzed in the RMP/EIS.” Federal Defendant's
Opposition to Plaintiff's Opening Merits Brief at 10-11,
filed June 9, 2017 (Doc. 113)(“BLM
Response”)(citing Declaration of David J. Mankiewicz
¶ 3, at 3, filed June 9, 2017 (Doc.
113-2)(“Mankiewicz Decl.”)). The RMP/EIS
addresses only the “cumulative impacts of the potential
development of 9, 942 new oil and gas wells, ” and
“does not approve any individual wells. Each well will
require a site-specific analysis and approval before
permitting.” RMP/EIS at 3 (A.R.0001947). See
Dine, 2015 WL 4997207, at *6. The 2003 RMP/EIS itself
“makes no explicit mention of drilling in the Mancos
Shale.” Dine, 2015 WL 4997207, at *6.
Plaintiffs challenge over 300 APDs that the BLM approved
seeking to drill wells into the Mancos Shale. See
Third Supplemented Petition for Review of Agency Action
¶ 1, at 1, filed September 9, 2016 (Doc.
98)(“Complaint”). For each APD, the BLM issued an
EA. See, e.g., 2014 EA at 1 (A.R.0140148). These EAs
are “tiered” to the 2003 RMP/EIS, meaning that
they incorporate the EIS by reference. 40 CFR § 1508.28.
The EAs address the site-specific and cumulative impacts of
the proposed wells. See 2014 EA at 25 (A.R.0140172);
id. at 23 (A.R.0140170). Although these EAs are
tiered to the 2003 RMP/EIS, the BLM also considered newer
studies when preparing the EAs, such as one relating to air
quality. See 2014 EA at 19 (A.R.0140166).
an EA concisely analyzes the possible environmental impacts
of a proposed action and weighs available alternatives.
See 40 C.F.R. § 1508.9. An EA differs from an
EIS in that the latter contains a big-picture analysis,
whereas EAs focus narrowly on the possible repercussions that
each individual action, here granting APDs, would have.
See, e.g., 2014 EA at 25 (A.R.0140172). When
drafting an EA, the BLM must determine whether to make a
finding of no significant impact (“FONSI”) or
whether the proposal requires a new EIS. See 40
C.F.R. § 1508.9(a)(1). In this context, a FONSI briefly
presents the reasons why an action “will not have a
significant effect on the human environment and for which an
environmental impact statement therefore will not be
prepared.” 40 C.F.R. § 1508.13. If the BLM issues
an EA with a FONSI instead of creating a new EIS, the EA
tiers to the existing EIS. See 40 C.F.R. §
1508.28. In this case, “[f]or the APDs regarding the
Mancos Shale, the BLM prepared FONSIs to accompany each
EA.” Dine, 2015 WL 4997207, at *7 (alteration
2014, the BLM decided to prepare an amendment to its 2003
RMP/EIS, because “improvements and innovations in
horizontal drilling technology and multi-stage hydraulic
fracturing have enhanced the economics of developing”
the Mancos Shale. Notice of Intent to Prepare a Resource
Management Plan Amendment and an Associated Environmental
Impact Statement for the Farmington Field Office, New Mexico,
79 Fed. Reg. 10548 (dated February 25, 2014)(A.R.0173818).
The BLM is now preparing the 2003 RMP/EIS amendment.
See BLM Response at 12.
The BLM and the NHPA.
106 of the NHPA requires federal agencies conducting an
“undertaking” to “take into account the
effect of the undertaking on any historic property.” 54
U.S.C. § 306108. A historic property includes those in
the “National Register of Historic Places maintained by
the Secretary of the Interior.” 36 C.F.R. §
800.16(1)(1). Chaco Park fits that definition. See
World Heritage List Nomination Submitted by the United States
of America Chaco Culture National Historical Park at 26
(dated November, 1984)(A.R.0217996)(noting that Chaco Park
“is on the National Register of Historic
Places”). One way to comply with Section 106 of the
NHPA is to enter into a “programmatic agreement”
with the Advisory Council on Historic Preservation. 36 C.F.R.
§ 800.14(b). “Compliance with the procedures
established by an approved programmatic agreement satisfies
the agency's section 106 responsibilities for all
individual undertakings of the program covered by the
agreement until it expires or is terminated. . . .” 36
C.F.R. § 800.14(b)(2)(iii). The BLM has entered into
such an agreement. See State Protocol Between Bureau
of Land Management and the New Mexico State Historic
Preservation Officer Regarding the Manner in which BLM will
meet its responsibilities under the National Historic
Preservation Act in New Mexico at 5 (A.R.0169217)(“2014
Protocol”)(noting that the BLM has entered into a
programmatic agreement). Generally, the 2014 Protocol's
purpose is to help the BLM comply with the NHPA. See
2014 Protocol at 6 (A.R.0169218). During BLM's
consideration of the APDs at issue in this case, two
protocols were in effect. The BLM entered into the first
protocol in 2004, see Protocol Agreement Between the
New Mexico Bureau of Land Management and New Mexico State
Historic Preservation Officer at 1 (dated June 4,
2014)(A.R.0169038)(“2004 Protocol”), which
remained in effect until the 2014 Protocol superseded it.
See 2014 Protocol at 5 (A.R.0169217)(“This
Protocol supersedes the 2004 Protocol Agreement between the
New Mexico BLM and SHPO.”).
Plaintiffs filed their petition in this case on March 11,
2015. See Petition for Review of Agency Action, at
1, filed March 11, 2015 (Doc. 1)(“Petition”).
After amending their petition twice, they assert five claims:
(i) the BLM violated NEPA by failing to analyze direct,
indirect, and cumulative effects of Mancos Shale fracking;
(ii) the BLM violated NEPA by not preparing an EIS on
fracking the Mancos Shale; (iii) the BLM violated NEPA by
taking action during the NEPA process; (iv) the BLM violated
NEPA, because it did not involve the public in drafting the
EAs; and (v) the BLM violated the NHPA, because it did not
consider the indirect and cumulative effects on Chaco Park
and its satellites and did not consult with the New Mexico
State Historic Preservation Officer (“SHPO”),
Indian tribes, or the public vis-à-vis the effects the
wells could have on Chaco Park and its satellites.
See Complaint ¶¶ 127-65, at 36-43. The
Plaintiffs subsequently filed a motion for a preliminary
injunction, arguing broadly on the merits that the BLM
violated NEPA for not analyzing the impacts of horizontal
drilling and fracking. See Plaintiffs' Motion
for Preliminary Injunction at 1, filed May 11, 2015 (Doc.
16); Plaintiff's Memorandum in Support of Motion for
Preliminary Injunction at 19-21, filed May 11, 2015 (Doc.
16-1). The Court denied the preliminary injunction. See
Diné, 2015 WL 4997207, at *1, *38-45. The Court
made that decision, in part, because the Plaintiffs did not
have a substantial likelihood of succeeding on the merits.
See Diné, 2015 WL 4997207, at *40-45. It
concluded that the Plaintiffs' case raises the following
issues: (i) whether the APDs are proposals that “will
significantly impact the human environment, ” requiring
an EIS for the APDs as opposed to tiered EAs; and (ii)
whether the BLM could tier its EAs to the 2003 RMP/EIS
instead of the pending, amended RMP/EIS.
Diné, 2015 WL 4997207, at *43. The Court
determined that (i) the 2003 RMP/EIS fully analyzed the
fracking's environmental impacts, and, (ii) while
directional drilling was a new technology that the 2003
RMP/EIS did not analyze, it has a “net positive impact
for the environment” when compared to vertical
drilling. Dine, 2015 WL 4997207, at *44. Because an
EIS is needed only when the level of environmental impact
actually threatens to exceed levels contemplated in the prior
EIS, the Court concluded that this lesser harm of horizontal
drilling did not require a new EIS. See Diné,
2015 WL 4997207, at *45.
Court acknowledged that, although more environmentally
friendly than vertical drilling, horizontal drilling was also
more profitable and, thus, could lead to a
“quasi-Jevons Paradox” where the operators' increased
incentive to drill would lead to more horizontal drills, and
thus increase, overall, environmental harm.
Diné, 2015 WL 4997207, at *44. The Court
concluded that, while that was possible, the likelihood of
such a scenario was not likely enough to require the BLM to
analyze such a possibility at the EIS level. See
Diné, 2015 WL 4997207, at *44.
Court also considered whether fracking combined with
horizontal drilling produced a new kind of environmental
impact that vertical drilling combined with fracking did not
produce, and, thus, whether an EIS was needed for that harm.
See Diné, 2015 WL 4997207, at *45. The Court
concluded that the BLM analyzed the qualitative difference
between the two varieties of drilling at the EA level and
concluded that the impact difference between the two
varieties of technology “are insignificant, ” and
therefore an EIS analyzing those harms is superfluous.
Diné, 2015 WL 4997207, at *45. Accordingly,
the Court concluded that no new RMP/EIS was needed, and that
the BLM did not act arbitrarily and capriciously when it
tiered its EAs to the 2003 RMP/EIS. See Diné,
2015 WL 4997207, at *45.
Plaintiffs appealed the Court's determination to the
United States Court of Appeals for the Tenth Circuit.
See Plaintiffs' Notice of Appeal at 1, filed
August 18, 2015 (Doc. 64). The Tenth Circuit affirmed the
Court's order denying the Plaintiffs request for a
preliminary injunction and agreed with the Court's
determination that there was not a substantial likelihood of
success on the merits. See Diné Citizens Against
Ruining Our Environment v. Jewell, 839 F.3d 1276,
1282-85 (10th Cir. 2016)(“Diné
II”). It agreed with the Court that,
“even with increased drilling in the Mancos Shale
formation and the switch to horizontal drilling and
multistage fracturing, ” the BLM did not act
arbitrarily and capriciously, because “the overall
amount of drilling and related surface impacts are still
within the anticipated level” in the 2003 RMP/EIS. 839
F.3d at 1283. As to the increased air quality impacts, the
Tenth Circuit ruled that “the agency considered these
impacts in its environmental assessments and concluded that
the approved drilling activities would not cause a
significant increase in emissions over the amount anticipated
in the RMP, ” and thus there was no NEPA violation. 839
F.3d at 1283. Finally, the Tenth Circuit agreed with the
Court that there was insufficient evidence to conclude that
the “new horizontal drilling and multistage fracturing
technologies will lead to environmental impacts qualitatively
different from the impacts assessed in the 2003 RMP.”
839 F.3d at 1283- 84. According to the Tenth Circuit, the
Plaintiffs raised two arguments about this point on appeal:
First, these technologies allow operators to extract
significant amounts of oil from the Mancos Shale, while the
RMP mainly anticipated the extraction of gas from other
formations in a different region of the San Juan Basin.
Second, horizontal drilling and multi-stage fracturing
involve a number of complexities not associated with
conventional wells that could result in additional
environmental impacts that were not anticipated or analyzed
when the agency analyzed the impacts of conventional drilling
methods in the 2003 [RMP].
Diné II, 839 F.3d at 1284 (alterations in
original). The Tenth Circuit rejected both arguments based on
the “deferential agency standard of review at issue in
this case.” 839 F.3d at 1284. According to the Tenth
Circuit, the Plaintiffs arguments failed, because they did
not “present any argument or cite to any evidence as to
how drilling in the Mancos Shale will cause different
environmental impacts than drilling in other formations in
the San Juan Basin . . . or [demonstrate] as to how
additional oil wells will cause qualitatively different
impacts from the smaller number of oil wells and larger
number of gas wells in the RMP.” 839 F.3d at 1284. The
Tenth Circuit held that the Plaintiffs similarly failed to
show how “horizontal drilling and multistage fracturing
may give rise to different types -- rather than different
levels -- of environmental harms when compared to the
traditional vertical drilling and hydraulic fracturing
techniques that have historically been used in the San Juan
Basin.” 839 F.3d at 1284. Accordingly, because the
Plaintiffs hold the burden of proof in an environmental case
challenging agency action, the Tenth Circuit determined that
the Plaintiffs were not likely to succeed on the merits.
See 839 F.3d at 1284. The Tenth Circuit cautioned,
however, that the Plaintiffs could ultimately prevail if,
later, the Plaintiffs uncovered additional evidence or
developed their arguments. See 839 F.3d at 1285. The
Plaintiffs subsequently filed a petition for review on the
merits. See Diné Brief at 1.
The Diné Brief.
Plaintiffs begin by arguing that they have standing to bring
this action. See Diné Brief at 8-10.
According to the Plaintiffs, they have alleged an injury,
because “they use the affected area and are persons
‘for whom the aesthetic and recreational values of the
area will be lessened by the challenged activity.'”
Diné Brief at 9 (citing Friends of the Earth Inc.
v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.
167, 183 (2000); Southern Utah Wilderness Alliance v.
Palma, 707 F.3d 1143, 1156 (10th Cir. 2013)).
Specifically, they contend that they have alleged a concrete
injury, because many of the Plaintiffs' members
“live and work in the areas affected by the Mancos
Shale drilling activities, as well as routinely hike,
recreate, camp, research, derive inspiration, engage in
cultural and spiritual practices and otherwise use areas on
and near the parcels where the horizontal drilling” is
occurring, and “from which the effects of this drilling
are visible and audible.” Diné Brief at 9
(citing Eisenfeld Decl. ¶¶ 2, 9, 13-14, at 1, 3-7;
Nichols Decl. ¶¶ 3-5, 7; Green Decl. ¶¶
3-5, 7 at 2-3; Miura Decl. ¶ 4, at 2). They contend that
their injuries from the drilling include harming “their
use and enjoyment of the areas” and arise from
“concerns about threats to their health and
safety.” Diné Brief at 10. The Plaintiffs also
argue that their injuries are traceable to the BLM's
authorization of drilling permits, because the BLM has not
first evaluated the drillings' impact to the environment.
See Diné Brief at 10. The Plaintiffs aver
that adjudication in their favor would redress the harm,
because it would lessen the aesthetic, environmental, and
recreational harms they are enduring. See
Diné Brief at 10.
Plaintiffs also argue that the BLM violated NEPA, because it
failed to “take a hard look” at the potential
environmental consequences resulting from authorizing the
Mancos Shale drilling. Diné Brief at 12 (emphasis
omitted). Specifically, they contend that the 2003 RMP/EIS,
which authorized 9, 942 wells, did not analyze the effects of
drilling in the Mancos Shale, as it was thought not to be an
economical option in 2003. See Diné Brief at
13. The Plaintiffs add that, once fracking technology made
the Mancos Shale well development an economically feasible
option, the BLM needed to take a hard look at the additional
environmental impact that 3, 960 new wells in the Mancos
Shale would have on the region. See Diné
Brief at 13-14. According to the Plaintiffs, the BLM cannot
rely on the 2003 RMP/EIS, because “[t]he 2003 RMP/EIS
does not offer any analysis for the landscape-level impacts
from drilling at this new scale, and therefore cannot be used
as an underlying basis for analyzing Mancos Shale EAs and
approving APDs.” Diné Brief at 14.
Plaintiffs argue that the Court and the Tenth Circuit erred
when denying a preliminary injunction on the grounds that a
new EIS is needed only “when the quantum of
environmental impact exceeds that which the operative EIS
anticipated, ” and that no new statement was needed,
because the “Mancos Shell development had not yet
exceeded the foreseeable impacts from 9, 942 wells.”
Diné Brief at 15. According to the Plaintiffs, the
Court and the Tenth Circuit erred, because the relevant
regulations require the agency to consider “the impacts
from foreseeable development” and not just the
impacts from past development. Diné Brief at 15-16
(citing 40 C.F.R. § 1508.7)(emphasis in Diné
Brief). The Plaintiffs argue, therefore, that, because the
2003 EIS did not anticipate horizontal drilling's and
fracking technology's effects, and that the foreseeable
impact of the Mancos Shale wells exceeds the quantum of
environmental impacts anticipated and analyzed in the 2003
EIS, the authorization of the additional wells violates NEPA.
See Diné Brief at 16-17 (“BLM has never
analyzed the environmental and human health impacts from the
combined total of 13, 902 reasonably foreseeable oil and gas
wells across the San Juan Basin.”).
Plaintiffs also contend that the BLM violated NEPA when all
of the EAs for the Mancos Shale wells “tiered” to
the 2003 RMP/EIS. Diné Brief at 18-21. According to
the Plaintiffs, tiering is only allowed when the
“project being considered is part of the broader agency
action addressed in the earlier NEPA document.”
Diné Brief at 18. The Plaintiffs argue that, because
the 2003 RMP/EIS did not consider at length horizontal
drilling's or fracking's effects on the environment,
tiering was inappropriate and violated NEPA. See
Diné Brief at 21.
Plaintiffs contend that the BLM also violated NEPA, because
it did not analyze the cumulative environmental and human
health impacts resulting from horizontal drilling and
fracking. See Diné Brief at 21-25. The
Plaintiffs assert that the BLM's analysis needed to
include an examination of the past, present, and future
wells, but it did not. See Diné Brief at
22-23. They add that BLM failed specifically to consider
“GHG emissions” in the 2003 RMP/EIS. Diné
Brief at 24.
Plaintiffs also argue that the BLM violated NEPA, because it
failed to prepare an EIS for the 3, 960 Mancos Shale wells.
See Diné Brief at 27 (“BLM cannot
continue to issue individual drilling approvals absent
completion of an EIS.”). They assert that the BLM has
failed to issue a “convincing statement of
reasons” for why the wells “will impact the
environment no more than insignificantly, ” so an EIS
is necessary. See Diné Brief at 27. Thus,
according to the Plaintiffs, because none has been issued,
the BLM has violated NEPA. See Diné Brief at
Plaintiffs add that the BLM violated NEPA, because it failed
to satisfy that statute's “public notice and
participation requirements.” Diné Brief at 29.
The Plaintiffs contend that, because BLM approved 362 Mancos
Shale wells and 122 APDs without public involvement and by
labeling them “routine projects, ” the BLM did
not follow NEPA's command. Diné Brief at 29. The
Plaintiffs contend that the BLM had notice as early as August
2012 that the public was interested in the Mancos Shale
wells, but, according to the Plaintiffs, the BLM's only
outward facing action was to make public its “decision
documents” in 2015 several months or years after it had
issued APD approvals. Diné Brief at 29-31 (citing 43
C.F.R. § 46.305 (stating that the agency must
“notify the public of the availability of an
environmental assessment and any associated finding of no
significant impact once they have been completed”)).
Plaintiffs next argue that the BLM violated NHPA.
See Diné Brief at 32-41. They contend that
oil-and-gas development adversely affects Chaco Park, which
is on the National Register of Historic Places. See
Diné Brief at 34-35. The Plaintiffs assert that,
despite the development's impact on those locations, the
BLM did not conduct a “landscape-level” analysis,
so the BLM's approval of APDs violates section 106 of
NHPA. See Diné Brief at 35-36.
Plaintiffs argue that, although the BLM can satisfy NHPA
section 106 without conducting a landscape level analysis if
it establishes a program alternative, the BLM has not
complied with the 2004 or 2014 Protocols, which the BLM
entered into as a program alternative to satisfy NHPA.
See Diné Brief at 36. The Plaintiffs aver
that the BLM has not satisfied the 2014 Protocol, because it
requires the BLM to analyze “Mancos Shale
development's indirect and cumulative effects” on
Chaco Park and its satellite sites, but, according to the
Plaintiffs, the BLM has analyzed only the “direct
impacts to archaeological sites.” Diné Brief at
36. The Plaintiffs add that the BLM's failure to consider
all of the development's indirect impacts to the sites
“flows from the agency's arbitrary”
definition of the Area of Potential Effect
(“APE”). Diné Brief at 37. See
id. at 38 (“No record evidence exists to indicate
that BLM ever defined an APE for indirect effects, or that
BLM ever analyzed the indirect adverse effects of Mancos
Shale development on historic properties.”). According
to the Plaintiffs, because the BLM has ignored indirect
effects on Chaco Park and its satellites, such as excess
noise, air, and light pollution, the BLM has violated NHPA.
See Diné Brief at 39-40.
the Plaintiffs argue that NHPA's regulations require the
BLM to consider “reasonably foreseeable effects”
of development, which BLM failed to consider. See
Diné Brief at 40 (citing 36 C.F.R. §
800.5(a)(1)). They add that “even if a single APD might
not indirectly cause an adverse effect” to Chaco Park,
“the 362 APDs already approved by the BLM may
cumulatively cause an adverse effect” to Chaco
Park. Diné Brief at 40 (emphasis in original). They
conclude that, even if the BLM may have considered direct
effects of development, because BLM failed to consider
indirect and cumulative effects, the BLM has violated NHPA.
See Diné Brief at 40-41.
The BLM's Response.
responds that: (i) the Plaintiffs do not have standing; (ii)
some of the Plaintiffs' challenges fail as they do not
attack final agency action; (iii) some of the Plaintiffs'
challenges fail as moot; and (iv) the BLM has not violated
NEPA nor NHPA. See BLM Response at 1-44. First, the
BLM asserts that the Plaintiffs do not have standing to
challenge the APDs. See BLM Response at 8-13. BLM
contends that the Plaintiffs have not alleged an
injury-in-fact, because there is an insufficient geographical
nexus between the Plaintiffs' purported harms and the
well developments. See BLM Response at 9-11. There
is no geographic nexus, according to the BLM, between the
wells and the Plaintiffs, because the Plaintiffs “all
state vaguely that they visit an undefined Chaco Region or
greater Chaco area, ” which, according to the BLM, is
too undefined a declaration to meet the injury-in-fact
requirement. BLM Response at 10-11. It adds that the only
specific locations that the Plaintiffs identify are “at
least eight miles away” from the challenged wells, so
they are not geographically close enough to establish an
injury. See BLM Response at 11.
also argues that the Plaintiffs have failed standing's
traceability and redressability prongs. See BLM
Response at 12-13. The BLM argues that the Plaintiffs fail
the traceability requirement, because the Plaintiffs have not
tied their injuries to the 382 specific wells at issue.
See BLM Response at 12. Instead, according to the
BLM, the Plaintiffs tie their injuries generally to
“oil and gas development, ” which, again
according to the BLM, is too vague to meet the standing
requirement, because there are 23, 000 active wells in the
area. BLM Response at 12-13.
the BLM argues that Plaintiffs' arguments challenging
future APD approvals fail, because these approvals do not
challenge final agency action. See BLM Response at
13. The BLM argues that the Court has jurisdiction, under the
APA, to review only “final agency actions.” BLM
Response at 14 (citing 5 U.S.C. § 704). It follows,
according to the BLM, that the Court lacks jurisdiction over
the 28 future APD approvals, because those approvals are not
final. See BLM Response at 14. The BLM also argues
that the Plaintiffs' challenges to the completed wells --
wells that have already been drilled, fracked, or abandoned
-- are moot. See BLM Response at 15. According to
the BLM, the challenges to the 177 completed wells are moot,
because a court cannot enjoin, preclude, or
“undo” a completed project. BLM Response at 15.
also argues that it complied with NEPA. See BLM
Response at 16-36. First, it contends that the BLM took a
hard look at the impacts of the challenged wells.
See BLM Response at 16. The BLM argues that the
Plaintiffs have not presented new evidence since the
preliminary injunction stage. See BLM Response at
16. Thus, according to the BLM, “the Court's
original analysis continues to apply.” BLM Response at
16. It argues that, because the additional Mancos Shale wells
will not exceed the impacts accounted for in the 2003
RMP/EIS, the BLM has not violated NEPA. See BLM
Response at 16. According to the BLM, the 2003 RMP/EIS
accounted for 5, 997 wells in the San Juan Basin.
See BLM Response at 17. The BLM asserts that, from
those 5, 997 wells projected, it follows that the 3, 960
predicted wells either drilled or to be drilled falls within
the original prediction, so the 2003 RMP/EIS remains valid
and the BLM can rely upon it. See BLM Response at
contends that the Plaintiffs' argument, which asserts
that the BLM did not consider the foreseeable effect of the
3, 960 wells, is incorrect. See BLM Response at 17.
It argues that the record demonstrates that the 2001 RFDS
concluded that the Mancos Shale “may have significant
potential as a shale gas candidate, ” and that there
may be reservoir zones in the Mancos shale not yet
recognized. BLM Response at 17. According to the BLM, the
RFDS also recognized the potential for horizontal drilling
and fracking in the Mancos Shale. See BLM Response
at 17-18. The BLM asserts, moreover, that the 2003 RMP/EIS
“noted that the Mancos Shale was a source of both oil
and gas.” BLM Response at 18. The BLM concedes that the
2003 RMP/EIS did not consider developing the Mancos Shale
specifically, but the BLM notes that analyzing the Mancos
Shale was not the RMP/EIS' goal. See BLM
Response at 18. Rather, according to the BLM, the 2003
RMP/EIS' goal is to analyze the “impacts of all
foreseeable oil and gas development on federal lands in the
San Juan Basin, regardless of geological formations targeted
or technologies used.” BLM Response at 18. The BLM also
argues that the 2003 RMP/EIS anticipated fracking and
“directional drilling, ” in addition to
“other innovative drilling techniques.” BLM
Response at 18. According to the BLM, “[t]he RMP/EIS
did not exclude horizontal drilling and multistage fracking
from its analysis because both were widely used in similar
formations elsewhere in the United States by 2003, and
foreseeable in the Mancos Shale as soon as the market made
them economically feasible.” BLM Response at 19.
next contends that tiering to the RMP/EIS is appropriate,
because the 2003 EMP/EIS considered fracking and horizontal
drilling. See BLM Response at 21. It adds, however,
that, even if the 2003 RMP/EIS did not consider fracking and
horizontal drilling, tiering is still appropriate, because
the 2003 RMP/EIS' analysis of vertical drilling would not
be qualitatively different from horizontal drilling and
fracking. See BLM Response at 21. According to the
BLM, because horizontal drilling and fracking “result
in the same types of impacts as other type of oil and gas
development, ” including vertical drilling, tiering to
the 2003 RMP/EIS, which considered the effects of vertical
drilling, remains appropriate. See BLM Response at
21. The BLM argues that the Plaintiffs present no admissible
evidence that horizontal drilling and fracking are so
different from vertical drilling that tiering is
inappropriate. See BLM Response at 22. It also
argues that there is no record evidence that horizontal
drilling causes so much more harm than vertical drilling that
impacts from horizontal drilling exceed the impacts of the 9,
942 wells analyzed in the 2003 RMP/EIS. See BLM
Response at 23.
also argues that that the 2003 RMP/EIS considered the
cumulative impacts of the 3, 960 Mancos Shale wells,
including the region's past, present, and reasonably
foreseeable future oil and gas development. See BLM
Response at 24-25. The BLM adds that its EAs effectively
supplement the 2003 RMP/EIS' analysis of fracking and
horizontal drilling. See BLM Response at 25. It also
argues that the EAs “explain that fracking in the
Mancos Shale is not anticipated to impact groundwater,
” because the Mancos Shale is separate from the
relevant aquifers. BLM Response at 25. The BLM asserts that,
contrary to the Plaintiffs' arguments, the 2003 RMP/EIS
took a “hard look” at the cumulative impact the
wells would have on climate change, because the RMP/EIS
estimated the wells' greenhouse gas emissions.
See BLM Response at 27.
the BLM asserts that it complied with NEPA's public
involvement requirements. See BLM Response at 31.
According to the BLM, it satisfied those requirements by: (i)
maintaining and updating a NEPA log on its website; (ii)
posting notices for proposed wells in a public reading room;
and (iii) hosting public meetings at the site of each
proposed well. See BLM Response at 31. The BLM
contends that it did not need to solicit additional public
comment about the Mancos Shale horizontal drilling and
fracking, because fracking and horizontal drilling is
“routine in the San Juan Basin.” BLM Response at
32. The BLM also argues that it is only required to notify
the public of final EA and FONSIs. See BLM Response
at 31. It contends that it satisfied those specific
requirements, because, once it issued an APD decision, the
BLM marked the APD as approved on the online NEPA log, and it
placed final EAs, FONSIs and decision records in its public
reading room and on its website. See BLM Response at
32-33. The BLM also contends that, while there was
“some delay” in posting “certain EAs and
FONSIs in the reading room and online, ” NEPA does not
have a notice deadline. See BLM Response at 33. The
BLM adds that, even if it failed to give the requisite
notice, such an error is harmless, because there has been no
evidence of prejudice to the Plaintiffs. See BLM
Response at 34. According to the BLM, the error is also
harmless, because the Plaintiffs and BLM worked to rectify
posting process errors together and the BLM provided the
Plaintiffs relevant documents. See BLM Response at
the BLM argues that it complied with the NHPA. See
BLM Response at 36. The BLM argues that it complied with the
NHPA “by defining the APE for each challenged APD based
on the location of the proposed well and the types of known
and suspected historic properties in the area, and assessing
the adverse effects to historic properties both within and
without the APE.” BLM Response at 37. It also argues
that the NHPA does not require the BLM to issue a separate
APE analysis for direct and indirect effects. See
BLM Response at 38 (citing 36 C.F.R. §§
800.4(a)(1), 800.16(d)). The BLM contends that it did not
violate the NHPA by failing to consult with the State
Historic Preservation Office (“SHPO”) after
defining an APE that accounts for direct effects, because a
SHPO consultation is required only when defining the APE is
complicated or controversial. See BLM Response at
38-39. BLM also contends that it did not contravene the NHPA,
because the “vast majority of historic properties near
the challenged APDs are not landscape level properties”
but are archeological sites. BLM Response at 39. It follows,
according to the BLM, that indirect and cumulative effects
such as air pollution, noise, and visual disturbances do not
affect the archaeological sites' historic
characteristics, and thus the BLM did not violate the NHPA.
See BLM Response at 39. The BLM also argues that air
pollution, noise, and visual disturbances do not adversely
affect the historic characteristics of Chaco Park and its
satellite locations, so there is no NHPA violation.
See BLM Response at 40. The BLM adds that, even if
air pollution, noise, and visual disturbances do affect Chaco
Park and its satellite locations, it is not foreseeable that
those disturbances would affect those sites, especially
because they are miles away from the oil wells, so there is
no NHPA violation. See BLM Response at 40-41.
Finally, the BLM argues that it has considered effects on
historic properties, which, according to the BLM, is all that
NHPA requires. See BLM Response at 41-42
(“[T]he NHPA only requires that an agency take
procedural steps to identify cultural resources; it does not
impose a substantive mandate on the agency to protect the
The Operators' Response.
Operators also filed a response. See Operators'
Response Brief, filed June 23, 2017 (Doc.
114)(“Operators' Response”). According to the
Operators' the main issue is not whether “newer and
more complex technologies are being used to drill Mancos
Shale wells, ” but, instead “whether the
environmental impacts of those methods were adequately
considered in the project specific EAs, or the programmatic
RMP/EIS to which the EAs were tiered.” Operators'
Response at 9. The Operators contend that the BLM complied
with NEPA, because “the impacts of the approved wells
fell within the scope of the 9, 942 wells studied in
2003.” Operators' Response at 8-9. Although the
Operators concede that any one horizontal drill may have more
impact than a single vertical well, as a horizontal well
requires a larger well pad and longer drilling times,
see Operators' Response at 6, they argue that
horizontal drilling “decreases” the
overall impact compared to vertical drilling, because
“fewer wells are needed to develop the resource,
” Operators Response at 6-7 (emphasis in original).
They also argue that the 2003 RMP/EIS accounted for the
impacts of horizontal drilling, so, according to the
Operators, there is no NEPA violation. See Operators
Response at 9.
Operators also argue that the tiered 2014 EAs properly
updated the 2003 RMP/EIS analysis. See
Operators' Response at 11. In support of that contention,
they note that the EAs since 2014 incorporate by reference
“detailed cumulative air impact analysis” from
the BLM's 2014 Air Resources Technical Report
(“ARTR”), which describes “the air quality
impacts of 21, 150 existing oil and gas wells in the Basin, .
. . future oil and gas drilling (including in the Mancos
Shale), as well as impacts of other greenhouse gas
sources.” Operators' Response at 11-12. According
to the Operators, the 2014 ARTR accounted specifically for
the Mancos Shale formation, so the BLM was justified in
relying on that report. See Operators' Response
Operators echo the BLM's argument that the BLM does not
need to analyze the 3, 960 potential Mancos Shale wells as
additional wells to the 9, 942 wells analyzed in the 2003
RMP/EIS. See Operators' Response at 13-14. They
also argue that, with regard to cumulative impact studies,
NEPA does not require individual APDs to include such an
expansive cumulative analysis. See Operators'
Response at 14-15. The Operators add that the BLM was not
required to halt its decision-making processes once it
started the RMP amendment process, because to “hold
otherwise would jeopardize or impair BLM's ability to
manage the public lands, since it is often engaged in plan
amendment or revision.” Operators' Response at 17.
The Operators also argue that the BLM adequately involved the
public in its EA process for the same reasons that the BLM
articulated. See Operators' Response at 18-20.
Operators contend that the BLM complied with NHPA.
See Operators' Response at 20. First, they
contend that the NHPA does not protect the “Greater
Chaco Landscape” -- a 67, 000 square-mile region -- as
the Plaintiffs assert, because the Greater Chaco landscape is
not an historic property. See Operators'
Response at 20-21. The Operators also argue that, even if the
landscape did qualify as a historic property,
“Diné fails to demonstrate how the landscape
itself would be adversely affected in a way that would
disqualify it from listing on the National register.”
Operators' Response at 22. The Operators' argue that
the Mancos Shale wells will not contribute to changing the
region to such a degree that it loses its historic status,
because the Mancos Shale area has already been “subject
to extensive oil and gas development under preexisting oil
and gas leases.” See Operators' Brief at
22. They also argue that many of the landscape alterations
Diné asserts -- visual and noise effects associated
with drilling and completion -- are temporary in nature, so
they “will not permanently alter the character of the
landscape.” Operators' Brief at 23.
Operators contend that there was no NHPA violation, because
the BLM properly followed the 2004 and 2014 Protocols.
See Operators' Brief at 24. According to the
Operators, the State Protocol requires the BLM to consult
with the State Historic Preservation Office if and only if
the APE is “not precisely defined by the State
Protocol.” Operators' Brief at 24. The Operators
argue that the 2014 Protocol defines the APE as “the
area of direct effect (as precisely defined for specified
actions), and known historic properties indirectly affected
in the vicinity, if BLM cultural resource specialists
determine it is appropriate to the Area of Potential
Effect.” Operators' Brief at 24-25. The Operators
argue that each proposed APD “applied the direct Area
of Potential effect, ” and the BLM did not identify
known historic properties outside the direct APE zone that
might be indirectly affected, so, according to the Operators,
the BLM complied with the 2004 and 2014 Protocols.
Operators' Brief at 25. The Operators also argue that the
BLM properly complied with section 106's requirement that
it consult regarding the effects of oil and gas development,
because the BLM affirmed seventy-nine specially designated
areas, it recognized two sites as Areas of critical
environmental concern, and oil and gas leasing was either
eliminated in the seventy-nine sites or subjected to strict
restrictions. See Operators' Brief at 25-26.
the Operators argue that, should the Court determine that the
Plaintiffs prevail, remand is the appropriate remedy as
opposed to an injunction or vacatur. See
Operators' Brief at 26. They contend that any
deficiencies in the well approvals are not serious enough for
vacatur or an injunction, because the BLM has employed
“robust cumulative impact analyses” in its most
recent RFDs, and “any NEPA errors that may have existed
at one time have now been corrected.” Operators'
Brief at 27. Thus, according to the Operators, “if any
NEPA or NHPA error exists, it can be addressed on remand
without upsetting the APD approvals.” Operators'
Brief at 27. They add that any BLM error must be weighed
against the harm to the Operators if APDs are vacated.
See Operators' Brief at 28. The Operators argue
that the harm they would suffer is dire, because their
contractors and employees “rely on the continued
viability of oil and gas development in northwestern New
Mexico.” Operators' Brief at 28. They conclude that
remand is “the only appropriate remedy.”
Operators' Brief at 28.
responds and asserts many of the same arguments as the BLM
and the Operators. See Intervenor-Defendant American
Petroleum Institute's Opposition to Plaintiffs'
Opening Merits Brief at 1-23, filed June 23, 2017 (Doc.
115)(“API Response”). It emphasizes that the
Court should deny the Plaintiffs' relief, because the
Diné Brief largely reasserts arguments that the Court
has already disposed of at the preliminary injunction stage.
See API Response at 3-6 (“[T]he Plaintiffs
continuously repeat -- sometimes verbatim -- evidence and
argument from their preliminary injunction briefing before
this Court and the Tenth Circuit.”). The API contends
that the only new arguments the Plaintiffs assert are that:
(i) the BLM failed consider greenhouse emissions and climate
change; (ii) the BLM failed to allow public comment; (iii)
the BLM violated NHPA. See API Response at 7.
Nevertheless, API considers the Plaintiffs' old NEPA
arguments and contends that the Court must defer to the
BLM's determinations. See API Response at 9-10.
It also asserts that the BLM was not required to issue a new
or supplemental EIS, because there was no new information
compelling a conclusion that the new wells would have
affected the environment in a significant manner which the
2003 RMP/EIS did not already address. See API
Response at 10.
also argues, as the Operators did, that the Plaintiffs have
not established that the balance of equities favor an
injunction or vacatur over remand should the Court determine
that the BLM violated NEPA or NHPA. See API Response
at 13. It contends that the Plaintiffs' purported
environmental harms are not that significant, because the
Plaintiffs have already experienced a great deal of oil and
gas development, as the San Juan Basin has been subject to
drilling for more than 60 years. See API Response at
15 (“Under these circumstances, the incremental
environmental impacts of the additional challenged APDs are
both relative limited in comparison to the oil and gas rigs
seemingly all over the place before Plaintiffs ever filed
this lawsuit.”). API also contends that the Plaintiffs
health and safety concerns are not enough to demonstrate
irreparable harm, because extensive New Mexico regulations
ensure that all wells are safe. See API Response at
16-17. API adds that the Plaintiffs' harms are outweighed
by the public interest, because the enormous economic
benefits of drilling have already been recognized.
See API Brief at 18 (citing MOO at 98 n.25, 2015 WL
4997207, at *50 n.25). API also argues that the San Juan
Basin drilling is an enormous job creator for the state.
See API Brief at 19. Thus, according to API, the
public benefit arising from horizontal drilling and fracking
outweighs the Plaintiffs' purported environmental injury.
See API Brief at 20-22. API concludes that the Court
should deny the request for vacatur or injunctive relief.
See API Brief at 23.
The Plaintiffs' Reply.
Plaintiffs reply that they have standing. See
Plaintiffs' Reply at 1, filed July 28, 2017 (Doc.
117)(“Reply”). They contend that to allege an
injury-in-fact, they are not required to show that they have
visited each well site; they argue that, instead, they need
only allege that they have “traversed through or within
view of parcels of land where oil and gas development will
occur and plans to return.” Reply at 2 (citing S.
Utah Wilderness All. v. Palma, 707 F.3d 1143 1155 (10th
Cir. 2013)). The Plaintiffs allege that they have traversed
or seen those parcels as demonstrated in declarations.
See Reply at 3-4. The Plaintiffs also contend they
have met the traceability requirement, because causation
under NEPA is tied to the BLM's failure to comply with
NEPA and not to the specific oil wells. See Reply at
Plaintiffs reiterate that the BLM violated NEPA for not
conducting an analysis on the 382 Mancos Shale wells before
authorizing them. See Reply at 6. They argue again
that the 2003 RMP/EIS never contemplated or analyzed the
cumulative impacts form horizontal drilling and fracking, so
the BLM cannot rely on that study and statement to contend
that they adhered to NEPA. See Reply at 7. Thus,
according to the Plaintiffs, the “BLM should have
updated its cumulative impacts analysis, ” but the BLM
failed to do so and thus violated NEPA. Reply at 7. The
Plaintiffs also argue that, although fracking and horizontal
drilling were widely used in 2003, that fact does not
demonstrate that the 2003 RMP/EIS adequately considered those
techniques. See Reply at 8-9. They also assert that
the BLM violated NEPA, because the “record conclusively
demonstrates that the RMP/EIS was focused only on the
foreseeable impacts from 9, 942 wells developed in
economically feasibly gas-bearing formations at that time,
not on the Mancos Shale.” Reply at 9.
Plaintiffs also argue that the cumulative impact of the 3,
960 horizontal wells added to the wells already drilled
exceeds the cumulative impact that the 2003 RMP/EIS analyzed.
See Reply Brief at 11. They contend -- with the
tables reproduced below -- that the surface impact, the water
consumption, and the pollution levels all exceed what the
2003 RMP/EIS considered.
Acres (Per Well)
Estimated Total Impacts (3,945 vert./3,960 horiz.)
Considered (2003 RMP/EIS)
Gallons (Per Well)
Estimated Total Impacts (3,945 vert./3,960 horiz.)
Considered (2003 RMP/EIS)
Est. Total Impacts (3.945 vert.)
Est. Total Impacts (3,960 horiz.)
Considered (2003 RMP/EIS)
See Reply at 11-12 (footnotes omitted). The
Plaintiffs add that site-specific EAs do not cure the
deficiency, because the EAs conflate the direct and indirect
impact analysis. See Reply at 12. The Plaintiffs
also argue that the 2003 RMP/EIS did not consider climate
change, so could not have accounted for the increased impact
the horizontal drilling and fracking wells would have had on
climate change. See Reply at 13.
Plaintiffs contend that the Court owes the BLM no deference
in the NEPA context. See Reply at 14 (citing
Park County v. Dep't of Agric., 817 F.2d 609,
620 (10th Cir. 1987)). They also reiterate their contention
that the BLM failed to involve the public in the NEPA
process. See Reply at 15. The Plaintiffs argue that,
although the BLM provided information to the public through
the internet, onsite meetings, notices of staking for
individual wells, such notice was insufficient under NEPA,
because “none of these actions provided information
about the context or potential impacts of APD
development.” Reply at 15-16 (“BLM failed to
provide the public with meaningful information about the
direct, indirect, and cumulative impacts of BLM's
decisions, prior to approving the wells.”). The
Plaintiffs contend that this lack of information was
prejudicial, because “public participation and informed
agency decisionmaking are the twin aims at the heart of
NEPA.” Reply at 17.
Plaintiffs reiterate that the BLM violated NHPA, because the
BLM ignored indirect and cumulative affects to the
characteristics of the historic property. See Reply
at 17-18. They argue that even if the distance between Chaco
Park and its satellites insulates them from the adverse noise
and light pollution of the wells, the BLM still violated
NHPA, because the BLM did not analyze what effect, if any,
those pollutions would have on the sites. See Reply
at 19. The Plaintiffs add that the BLM did not follow the
2014 Protocol, because, under the 2014 Protocol, the BLM is
required to consider indirect effects, which, according to
the plaintiffs, the BLM did not consider. See Reply
at 20-21. The Plaintiffs assert that the BLM did not meet its
NHPA obligations when it spoke to the SHPO as part of the
2003 RMP/EIS, because the 2003 RMP/EIS did not discuss the
impacts to landscape-level historic properties. See
Reply at 21.
Plaintiffs aver that their claims are not moot, even though
177 wells have already been drilled or abandoned, because the
Plaintiffs' injuries are not confined to “the acts
of drilling, and persist even once wells are complete.”
Reply at 22. They argue that an agency action is not moot if
the violation of the applicable law “can be undone,
” even if doing so would be expensive or complex. Reply
at 23. The Plaintiffs add that the Court has “broad
discretion to order equitable relief short of” well
removal, such as “mitigation measures and restrictions
on well operations.” Reply at 23. They also argue that
the Court can still issue a declaratory judgment.
See Reply at 23. They conclude that the BLM's
actions are “capable of repetition but evading
review.” Reply at 23-24 (“If BLM's mootness
argument for APDs with already-drilled wells prevails,
nothing would prevent BLM from ‘ignor[ing] the
requirements of NEPA.'”)(citing Cantrell v.
City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001)).
Plaintiffs also argue that they are entitled to the remedies
which they seek, because the BLM's alleged NEPA
violations are egregious. See Reply at 25
(“Here, vacatur is the only remedy that serves
NEPA's fundamental purpose of requiring agencies to look
before they leap.”)(emphasis in original). The
Plaintiffs argue that departing from the typical vacatur
remedy is only appropriate in “unusual and limited
circumstances.” Reply at 25. They conclude that, if the
Court determines that the Plaintiffs are correct on the
merits, “they respectfully ask the court to bifurcate
the remedy phase and allow for additional briefing, at which
point they will satisfy the required elements for a permanent
injunction.” Reply at 26 (citing Monsanto v.
Geertson Seed Farms, 561 U.S. 139, 156-57 (2010)).
federal court may hear cases only where the plaintiff has
standing to sue. See Summers v. Earth Island
Institute, 555 U.S. 488, 492-93 (2009). The plaintiff
bears the burden of establishing standing. See,
e.g., Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 104 (1998). The plaintiff must
“allege . . . facts essential to show jurisdiction. If
they fail to make the necessary allegations, they have no
standing.” FW/PBS v. City of Dallas, 493 U.S.
215, 231 (1990)(internal citations and quotations omitted).
Moreover, where the defendant challenges standing, a court
must presume lack of jurisdiction “unless the contrary
appears affirmatively from the record.” Renne v.
Geary, 501 U.S. 312, 316 (1991)(quoting Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 546
(1986))(internal quotation marks omitted). “It is a
long-settled principle that standing cannot be inferred
argumentatively from averments in the pleadings but rather
must affirmatively appear in the record.” Phelps v.
Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997)(Henry,
J.)(quoting FW/PBS v. City of Dallas, 493 U.S. at
231)(citations omitted)(internal quotation marks omitted).
III of the Constitution limits the jurisdiction of federal
courts to Cases and Controversies.” San Juan Cty.,
Utah v. United States, 503 F.3d 1163, 1171 (10th Cir.
2007)(en banc). See U.S. Const. art. III, § 2.
“[A] suit does not present a Case or Controversy unless
the plaintiff satisfies the requirements of Article III
standing.” San Juan Cty., Utah v. United
States, 503 F.3d at 1171. To establish standing, a
plaintiff must show three things: “(1) an injury in
fact that is both concrete and particularized as well as
actual or imminent; (2) a causal relationship between the
injury and the challenged conduct; and (3) a likelihood that
the injury would be redressed by a favorable decision.”
Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th
Cir. 2008)(Hartz, J.)(internal quotation marks omitted).
is determined as of the time the action is brought.”
Smith v. U.S. Court of Appeals, for the Tenth
Circuit, 484 F.3d 1281, 1285 (10th Cir. 2007)(Seymour,
J.)(quoting Nova Health Sys. v. Gandy, 416
F.3d 1149, 1154 (10th Cir. 2005)(Ebel, J.)). In Smith v.
U.S. Court of Appeals, for the Tenth Circuit,
the Tenth Circuit rejected a plaintiff's standing to
challenge the Colorado appellate courts' practice of
deciding cases in non-precedential, unpublished opinions,
which the plaintiff asserted allowed courts to affirm
incorrect decisions without interfering with official,
“published” law. 484 F.3d at 1285. The Tenth
Circuit noted that the plaintiff had recently taken his state
appeal and, therefore,
was in no position to challenge the adequacy of state
appellate review in cases culminating in unpublished opinions
unless he could show that he would in fact receive such
review from the state court of appeals (and from the state
supreme court as well, if it took the case on certiorari).
484 F.3d at 1285.
contrast, in Nova Health Sys. v. Gandy, the Tenth
Circuit concluded that abortion providers had standing to
challenge an Oklahoma parental-notification law on the
grounds that they were in imminent danger of losing patients
because of the new law. See 416 F.3d 1154. Although
determining that there was standing, the Tenth Circuit was
careful to frame the issue as whether, “as of June 2001
[the time the lawsuit was filed], ” Nova Health faced
any imminent likelihood that it would lose some minor
patients seeking abortions. 416 F.3d at 1155. Moreover, while
focusing on the time of filing, the Tenth Circuit allowed the
use of evidence from later events -- prospective patients
lost because of the notification law after the lawsuit began
-- to demonstrate that the plaintiff faced an imminent threat
as of the time of filing. See 416 F.3d at 1155.
construing the standing doctrine, the Court has determined
that an attorney running for office as a Court of Appeals of
New Mexico judge lacked standing when that attorney alleged
that the New Mexico attorney disciplinary counsel harmed his
chances of election when the counsel published a summary
suspension petition about him. See League of United Latin
American Citizens v. Ferrera, 792 F.Supp.2d 1222,
1233-39 (D.N.M. 2011)(Browning, J.). It so concluded, because
the suspension petition's facts “were already known
to voters” through the aggressive campaign tactics of
the attorney's election rival, so the harm was not
“fairly traceable to the Defendant's action.”
792 F.Supp.2d at 1238-39. The Court has, however, determined
that a woman had standing to challenge a New Mexico criminal
statute's constitutionality, even though the state had
not yet filed charges against the woman, because the district
attorney had not attested that he would not bring charges
under the challenged statute. See Payne v. Wilder,
2017 WL 2257390, at *38 (D.N.M. Jan. 3, 2017)(Browning, J.).
The Court reasoned that an injury in fact existed, despite
the lack of a charge, because the district attorney's
refusal to foreswear a prosecution demonstrated a
“credible threat of prosecution.” Payne v.
Wilder, 2017 WL 2257390, at *38. In addition to the
cases listed above, the Court has adjudicated standing issues
many times. See, e.g., Abraham v. WPX
Production Productions, LLC, 184 F.Supp.3d 1150, 1197
(D.N.M. 2016)(Browning, J.)(concluding that oil-well royalty
owners had standing to assert a breach of the implied duty to
market under New Mexico and Colorado law); Northern New
Mexicans Protecting Land Water and Rights v. United
States, 161 F.Supp.3d 1020, 1042 (D.N.M. 2016)(Browning,
J.)(concluding that an association lacked standing to sue on
behalf of its members, because the relief sought was
damages); Jarita Mesa Livestock Grazing Ass'n v. U.S.
Forest Service, 140 F.Supp.3d 1123, 1170-75 (D.N.M.
2015)(Browning, J.)(concluding that livestock association
whose members had ancestral ties to grazing land in Northern
New Mexico had standing to bring a NEPA claim); Alto
Eldorado Partners v. City of Santa Fe, 2009 WL 1312856,
at *21, 25 (D.N.M. March 11, 2009)(Browning, J.)(concluding
that a developer did not have standing to challenge a city
ordinance, because the ordinance would only affect him if he
“lost his current permits, ” which, at the time
of the lawsuit, he had not lost)
III, Section 2 of the Constitution of the United States
limits the federal courts' jurisdiction to actual cases
and controversies. See U.S. Const. art. III §
2. “Federal courts are without authority to decide
questions that cannot affect the rights of litigants in the
case before them.” Ford v. Sully, 773 F.Supp.
1457, 1464 (D. Kan. 1991)(O'Connor, C.J.)(citing
North Carolina v. Rice, 404 U.S. 244, 246 (1971).
See Johansen v. City of Bartlesville, 862 F.2d 1423,
1426 (10th Cir. 1988); Johnson v. Riveland, 855 F.2d
1477, 1480 (10th Cir. 1988)). “To qualify as a case fit
for federal-court adjudication, an actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.” Arizonians for Official
English v. Ariz., 520 U.S. 43, 67 (1997). See Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d
1096, 1121 (10th Cir. 2010). Accordingly, if a case is moot,
or becomes moot during any stage of the case, the court does
not have jurisdiction to hear the case. A case becomes moot
“when the issues presented are no longer
‘live' or the parties lack a legally cognizable
interest in the outcome.” County of Los Angeles v.
Davis, 440 U.S. 625, 631 (1979)(citing Powell v.
McCormack, 395 U.S. 486, 496 (1969)).
deciding that there is no jurisdiction, the district court
must look at the way the complaint is drawn to see if it is
drawn so as to claim a right to recover under the
Constitution and the laws of the United States.”
Bell v. Hood, 327 U.S. 678, 682 (1946). Jurisdiction
is not dependent on whether the plaintiff will succeed in his
cause of action; jurisdiction is determined before the cause
of action's details, both in law and fact, are
considered. See Bell v. Hood, 327 U.S. at 682.
Tenth Circuit recognized a distinction between mootness and
standing in Lucero v. Bureau of Collection Recovery,
Like Article III standing, mootness is oft-cited as a
constitutional limitation on federal court jurisdiction.
E.g., Building & Constr. Dep't v.
Rockwell Int'l Corp., 7 F.3d 1487, 1491 (10th Cir.
1993)(“Constitutional mootness doctrine is grounded in
the Article III requirement that federal courts only decide
actual, ongoing cases or controversies.”); see
Matthew I. Hall, The Partially Prudential Doctrine of
Mootness, 77 Geo. Wash.L.Rev. 562, 571 (2009)(citing
footnote 3 in Liner v. Jafco, Inc., 375 U.S. 301 . .
. (1964), as the first occasion in which the Supreme Court
expressly derived its lack of jurisdiction to review moot
cases from Article III). But although issues of mootness
often bear resemblance to issues of standing, their
conceptual boundaries are not coterminous. See Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189-92 . . . (2000). Indeed, the
Supreme Court has historically recognized what are often
called “exceptions” to the general rule against
consideration of moot cases, as where a plaintiff's
status is “capable of repetition yet evading review,
” S. Pac. Terminal Co. v. Interstate Commerce
Comm'n, 219 U.S. 498, 515 . . . (1911), or where a
defendant has ceased the challenged action but it is likely
the defendant will “return to his old ways” --
the latter often referred to as the voluntary cessation
exception, United States v. W.T. Grant Co., 345 U.S.
629, 632 . . . (1953); see also, e.g.,
City of Erie v. Pap's A.M., 529 U.S. 277 . . .
(2000). These exceptions do not extend to the standing
inquiry, demonstrating the contours of Article III as it
distinctly pertains to mootness. Friends of the Earth,
Inc., 528 U.S. at 191, 120 . . . .
Lucero v. Bureau of Collection Recovery, Inc., 639
F.3d at 1242-43.
may become moot if “(i) it can be said with assurance
that there is no reasonable expectation that the alleged
violation will recur, and (ii) interim relief or events have
completely and irrevocably eradicated the effects of the
alleged violation.” Cty. of L.A. v. Davis, 440
U.S. 625, 631 (1979). The burden of establishing mootness is
a heavy one. See Cty. of L.A. v. Davis, 440 U.S. at
631. Courts are permitted to take into account the relative
likelihood of the events which a party asserts keep the
dispute from becoming moot. See Golden v. Zwickler,
394 U.S. 103, 109 (1969)(“We think that under all the
circumstances of the case the fact that it was most unlikely
that the Congressman would again be a candidate for Congress
precluded a finding that there was ‘sufficient
immediacy and reality' here.”). A case can become
moot based on intervening events, such as settling the case,
see U.S. Bancorp Mortgage Co. v. Bonner Mall
P'ship, 513 U.S. 18, 25 (1994)(“Where
mootness results from settlement, the losing party has
voluntarily forfeited his legal remedy by the ordinary
processes of appeal . . . .”), or becoming a resident
of the State whose residency laws one is challenging, see
Sosna v. Iowa, 419 U.S. 393, 399 (1975)(“If
appellant had sued only on her own behalf, both the fact that
she now satisfies the one-year residency requirement and the
fact that she has obtained a divorce elsewhere would make
this case moot and require dismissal.”). In comparison,
while mootness, a statute of limitations, or some other legal
doctrine may eventually bar a suit, one cannot lose standing
once one has it. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 190-92,
(“Furthermore, if mootness were simply ‘standing
set in a time frame, ' the exception to mootness that
arises when the defendant's allegedly unlawful activity
is ‘capable of repetition, yet evading review, '
could not exist.”).
Court has concluded that a due process claim is not moot
where the plaintiff does not receive the precise remedy he
has requested. See Salazar v. City of Albuquerque,
776 F.Supp.2d 1217, 1235-36 (D.N.M. 2011)(Browning,
J.)(“Salazar”). In Salazar, a
city bus driver brought a due process claim against the City
of Albuquerque after being fired from his job. See
776 F.Supp.2d at 1223. Although the employee was later
reinstated, the Court determined that his due process claim
was not moot, because he had asked for more than just
reinstatement; he had also asked for punitive and back-pay
damages. See 776 F.Supp.2d at 1235-36. The Court has
also determined that a claim is not necessarily moot even
when a state court has previously dismissed the claim for
lack of prosecution and for failure to appear, because there
was still time for the plaintiff to seek reconsideration of
the decision or an appeal. See Nieto v. University of New
Mexico, 727 F.Supp.2d 1176, 1191 (D.N.M. 2010)(Browning,
REGARDING JUDICIAL ...