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Dine Citizens Against Ruining Our Environment v. Jewell

United States District Court, D. New Mexico

April 23, 2018

DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; WILDEARTH GUARDIANS; and NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs,
v.
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,
v.
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.

         Counsel:

          Kyle 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 Exploration Corporation

          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 [1]

         THIS 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 Brief.

         FACTUAL BACKGROUND

         The 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.

         1. The Parties.

         Plaintiff 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.

         a. The Plaintiff Organizations' Members.

         Mike 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 Mexico.[2] 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.

         According 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 Shale[3]wells 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.

         In 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[4] . . . 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.

         Jeremy 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 added).[5]

         Deborah 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[6] 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”)[7] “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.”).

         Hope Miura represents that she lives in the Cochiti Pueblo, [8] 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, at 3.

         Gina 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, at 2.

         Kendra 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.

         b. The Defendants.

         Defendant 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.[9] 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).

         Intervenor-Defendant 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 *3.

         2. Oil-and-Gas Development in the San Juan Basin.

         The San 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, 2003)(A.R.0001945)(“PRMP”). “Approximately 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 (undated)(A.R.0232032)(“FONSI”).

         Since 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.”[10] 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 7-8 (undated)(A.R.0155551-52)(“Hydraulic 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).

         “Vertical 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 Comment”).

         The 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, 2014)(A.R.0140148)(“2014 EA”).

         3. The BLM's Oil-and-Gas Planning and Management Framework.

         The BLM 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).

         In the 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).

         4. The Timeline of Events Giving Rise to this Case.

         In 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 (A.R.0000006).

         The 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).

         In 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.

         The 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).

         Generally, 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 added).

         In 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.

         5. The BLM and the NHPA.

         Section 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.”).

         PROCEDURAL BACKGROUND

         The 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.[11]

         The 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”[12] 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.

         The 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.

         The 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”).[13] 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.

         1. The Diné Brief.

         The 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.

         The 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.

         The 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.”).

         The 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.

         The 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.

         The 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 27-28.

         The 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”)).

         The 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.

         The 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.

         Finally, 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.

         2. The BLM's Response.

         The BLM 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.

         The BLM 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.

         Next, 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.

         The BLM 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 17.

         The BLM 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.

         The BLM 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.

         The BLM 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.

         Next, 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 35.

         Finally, 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 resources.”).

         3. The Operators' Response.

         The 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.

         The 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 at 12.

         The 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.

         The 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.

         The 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.

         Finally, 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.

         4. API's Response.

         The API 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.

         API 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.

         5. The Plaintiffs' Reply.

         The 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 4.

         The 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.

         The 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.

Surface Impacts

Well Type

Acres (Per Well)

Estimated Total Impacts (3,945 vert./3,960 horiz.)

Vertical

2

7,890

Horizontal

5.2

20,592

Total Combined

28,482

Considered (2003 RMP/EIS)

18,577

Percentage Increase

53%

Water Consumption


Well Type


Gallons (Per Well)


Estimated Total Impacts (3,945 vert./3,960 horiz.)


Vertical


283,500


1,118,407,500


Horizontal


1,020,000


4,039,200,000


Total Combined


5,157,607,500


Considered (2003 RMP/EIS)


2,818,557,000


Percentage Increase


82%


Air Pollution

Well Type

Well Construction

NOx (tpy)

CO(tpy)

VOC(tpy)

PM10 (tpy)

Vertical

9

2.30

0.63

0.20

0.92

Horizontal

25

6.13

1.64

0.55

2.54

Percentage Increase

267%

260%

275%

276%

Est. Total Impacts (3.945 vert.)

20,869

2,485

789

3,629

Est. Total Impacts (3,960 horiz.)

24,275

6,494

2,178

10,058

Total Combined

45,144

8,979

2,967

13,687

Considered (2003 RMP/EIS)

22,866

6,263

1,988

9,146

Percentage Increase

97%

43%

49%

50%

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.

         The 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.

         The 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.

         The 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)).

         The 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)).

         LAW REGARDING STANDING

         A 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).

         “Article 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).

         “Standing 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.

         By 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.

         In 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)

         LAW REGARDING MOOTNESS

         Article 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)).

         “Before 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.

         The Tenth Circuit recognized a distinction between mootness and standing in Lucero v. Bureau of Collection Recovery, Inc.:

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.

         A claim 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.”).

         The 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, J.).

         LAW REGARDING JUDICIAL ...


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