San Juan Citizens Alliance et al v. United States Bureau of Land Management et al

MOTION for Summary Judgment Plaintiffs' Opening Merits Brief

D.N.M.November 18, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO SAN JUAN CITIZENS ALLIANCE, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants. ) ) ) ) Case No. 1:16-cv-00376-MCA-WPL ) ) ) ) ) ) ) _______________________________________) PLAINTIFFS’ OPENING MERITS BRIEF Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 1 of 60 i TABLE OF CONTENTS Table of Authorities ............................................................................................................ iii INTRODUCTION ............................................................................................................... 1 STATUTORY BACKGROUND ........................................................................................ 2 I. MINERAL LEASING ACT ..................................................................................... 2 II. FEDERAL ONSHORE OIL AND GAS LEASING ACT ....................................... 3 III. NATIONAL ENVIRONMENTAL POLICY ACT ................................................. 3 STANDING ......................................................................................................................... 6 STANDARD OF REVIEW ................................................................................................. 8 STATEMENT OF FACTS .................................................................................................. 9 I. BLM’S OIL AND GAS PLANNING AND MANAGEMENT FRAMEWORK ........................................................................................................ 9 II. BLM’S PLANNING AND MANAGEMENT GOVERNING SANTA FE NATIONAL FOREST LEASES ............................................................................ 11 III. FOREST SERVICE APPROVAL FOR SPLIT ESTATE LANDS IN THE SANTA FE NATIONAL FOREST ....................................................................... 13 IV. BLM’S COMPETITIVE OIL AND GAS LEASE SALE FOR SANTA FE NATIONAL FOREST PARCELS ......................................................................... 14 ARGUMENT .................................................................................................................... 15 I. BLM FAILED TO TAKE A HARD LOOK AT DIRECT, INDIRECT, AND CUMULATIVE IMPACTS OF OIL AND GAS LEASING BEFORE MAKING AN IRRETRIEVABLE COMMITMENT OF RESOURCES ............................... 15 A. BLM Failed to Take a Hard Look at Impacts from Leasing on Greenhouse Gas Emissions and Climate Change ............................................................ 18 B. BLM Failed to Take a Hard Look at Impacts from Leasing on Air Quality ......................................................................................................... 26 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 2 of 60 ii C. BLM Failed to Take a Hard Look at Impacts from Leasing on Water Resources .................................................................................................... 29 1. Impacts to water quantity .................................................................... 29 2. Impacts to groundwater quality .......................................................... 30 3. Impacts to surface water quality ......................................................... 32 D. BLM Failed to Take a Hard Look at Cumulative Impacts of Lease Development ............................................................................................... 33 II. BLM FAILED TO PROVIDE A CONVINCING STATEMENT OF REASONS TO JUSTIFY ITS DECISION TO FOREGO PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT .................................................... 35 III. BLM UNLAWFULLY ISSUED LEASES CAUSING PREJUDICE AND LIMITING THE CHOICE OF ALTERNATIVES IN THE PENDING RESOURCE MANAGEMENT PLAN AMENDMENT ....................................... 40 IV. THE FOREST SERVICE FAILED TO TAKE A HARD LOOK AT OIL AND GAS LEASING AND FAILED TO CONSIDER SIGNIFICANT NEW INFORMATION AND CIRCUMSTANCES ........................................................ 43 CONCLUSION ................................................................................................................. 49 CERTIFICATE OF SERVICE .......................................................................................... 50 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 3 of 60 i TABLE OF AUTHORITIES CASES: Airport Neighbors Alliance v. U.S., 90 F.3d 426 (10th Cir. 1996) ....................................................................................... 35 Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972) ..................................................................................... 40 Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) ....................................................................................................... 15 Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) ....................................................................................... 5 Border Power Plant Working Grp. v. U.S. Dep’t of Energy, 260 F.Supp.2d 997 (S.D. Ca. 2003) ............................................................................. 18 Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n., 449 F.2d 1109 (D.C. Cir. 1971) ................................................................................... 41 Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) ......................................................................... 18, 24, 46 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ....................................................................................................... 9 City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) ....................................................................................... 21 Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162 (10th Cir. 1999) ....................................................................... 30, 35, 41 Colorado Envtl. Coal. v. Salazar, 875 F.Supp.2d 1233 (D. Colo. 2012) ........................................................................... 28 Comm. To Save Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996) ............................................................................... 6, 7, 8 Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) ..................................................................................... 40 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 4 of 60 ii Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) ................................................................................... 36 Diné Citizens Against Ruining Our Env’t v. U.S. OSMRE, 82 F.Supp.3d 1201 (D. Colo. 2015) ............................................................................. 21 Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir. 2010) ..................................................................................... 16 Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) ....................................................................................................... 6 Fund for Animals v. Norton, 281 F.Supp.2d 209 (D.D.C. 2003) ............................................................................... 37 Grand Canyon Trust v. F.A.A., 290 F.3d 339 (D.C. Cir. 2002) ............................................................................... 27, 34 Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257 (10th Cir. 2004) ............................................................................. 36, 40 Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972)......................................................................................... 27 High Country Conserv. Advocates v. U.S. Forest Service, 52 F.Supp.3d 1174 (D. Colo. 2015) ....................................................................... 20, 21 Idaho v. Interstate Commerce Comm’n, 35 F.3d 585 (D.C. Cir. 1994) ....................................................................................... 23 Idaho Sporting Cong. v. Thomas, 137 F.3d 1146 (9th Cir. 1998) ..................................................................................... 36 Kern v. BLM, 284 F.3d 1062 (9th Cir. 2002) ............................................................................... 23, 27 Kleppe v. Sierra Club, 427 U.S. 390 (1976) ................................................................................................. 5, 37 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................................................... 8 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 5 of 60 iii Massachusetts v. EPA, 549 U.S. 497 (2007) ............................................................................................... 18, 19 Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003) ....................................................................................... 21 Motor Vehicle Mfrs. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ....................................................................................... 9, 28, 32, 35 Native Vill. of Point Hope v. Jewell, 740 F.3d 489 (9th Cir. 2014) ....................................................................................... 22 National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) ....................................................................................... 31 Natural Resources Defense Council v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) ............................................................................... 24, 33 New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683 (10th Cir. 2009) ............................................................................. Passim Northern Plains Resource Council v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) ............................................................................... 22, 25 Ocean Advoc. v. U.S. Army Corps of Engrs., 402 F.3d 846 (9th Cir. 2005) ................................................................................. 37, 38 Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) ................................................................................. 9, 28 Or. Natural Desert Ass’n v. BLM, 625 F.3d 1092 (9th Cir. 2010) ..................................................................................... 20 Pub. Citizens v. Dep’t of Transp., 316 F.3d 1002 (9th Cir. 2003) ..................................................................................... 37 Pub. Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999) ................................................................................... 42 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................... 15, 30 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 6 of 60 iv Rocky Mtn. Oil & Gas Ass’n v. Watt, 696 F.2d 734 (10th Cir. 1982) ..................................................................................... 42 SEC v. Chenery Corp., 332 U.S. 194 (1947) ....................................................................................................... 9 Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) ............................................................................. 16, 43 Sierra Club v. Marsh, 976 F.2d 763 (1st Cir. 1992) ........................................................................................ 16 Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983) ............................................................................. 36, 37 S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718 (9th Cir. 2009) ....................................................................................... 23 S. Utah Wilderness All. v. Palma, 707 F.3d 1143 (10th Cir. 2013) ..................................................................................... 6 Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep’t of Interior, 608 F.3d 592 (9th Cir. 2010) ................................................................................. 34, 35 Utah v Andrus, 486 F.Supp. 995 (D. Utah 1979) .................................................................................. 42 WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178 (10th Cir. 2013) ..................................................................................... 9 WildEarth Guardians v. U.S. OSMRE, 104 F.Supp.3d 1208 (D. Colo. 2015) ..................................................................... 20, 21 STATUTES: 5 U.S.C. § 706(2)(A) ........................................................................................................... 9 16 U.S.C. § 1131(c) ............................................................................................................. 1 30 U.S.C. §§ 181 et seq. ...................................................................................................... 2 30 U.S.C. § 187 ................................................................................................................... 2 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 7 of 60 v 30 U.S.C. § 226(a) ............................................................................................................... 2 30 U.S.C. § 226(h) ......................................................................................................... 3, 43 42 U.S.C. §§ 4321 et seq. .................................................................................................... 2 42 U.S.C. § 4331(b) ............................................................................................................. 4 42 U.S.C. § 4332(2)(C) ................................................................................................. 4, 35 42 U.S.C. § 4332(2)(C)(ii) ................................................................................................ 20 42 U.S.C. § 4332(2)(C)(v) ................................................................................................. 16 43 U.S.C. §§ 1701 et seq. .................................................................................................. 10 43 U.S.C. § 1701(a)(8) .......................................................................................... 10, 41, 42 43 U.S.C. § 1702(c) ........................................................................................................... 42 43 U.S.C. § 1712(c) ........................................................................................................... 12 43 U.S.C. § 1712(c)(1) ...................................................................................................... 41 REGULATIONS: 36 C.F.R. § 228.102(a) .................................................................................................. 3, 43 36 C.F.R. § 228.102(a)-(d) ................................................................................................ 43 36 C.F.R. § 228.102(e) ............................................................................................ 3, 44, 47 36 C.F.R. § 228.102(e)(1) ........................................................................... 3, 43, 44, 46, 48 40 C.F.R. § 1500.1 .............................................................................................................. 3 40 C.F.R. § 1500.1(c) .......................................................................................................... 4 40 C.F.R. § 1501.2 ........................................................................................................ 4, 16 40 C.F.R. § 1501.4 .............................................................................................................. 5 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 8 of 60 vi 40 C.F.R. § 1502.2(b) ........................................................................................................ 22 40 C.F.R. § 1502.4 ............................................................................................................ 35 40 C.F.R. § 1502.9(c)(1)(i) ................................................................................................ 10 40 C.F.R. § 1502.9(c)(1)(ii) ........................................................................................ 10, 44 40 C.F.R. § 1502.14 ...................................................................................................... 4, 41 40 C.F.R. § 1502.15 .................................................................................................... 22, 26 40 C.F.R. § 1502.16 .............................................................................................. 15, 26, 30 40 C.F.R. § 1502.20 ............................................................................................................ 5 40 C.F.R. § 1502.22 .......................................................................................................... 16 40 C.F.R. § 1502.24 .......................................................................................................... 26 40 C.F.R. § 1506.1 ............................................................................................................ 43 40 C.F.R. § 1506.1(c) .................................................................................................... 5, 40 40 C.F.R. § 1506.1(c)(3) ................................................................................................... 40 40 C.F.R. § 1508.3 ............................................................................................................ 35 40 C.F.R. § 1508.7 .................................................................................... 15, 16, 25, 27, 30 40 C.F.R. § 1508.8 ...................................................................................................... 15, 35 40 C.F.R. § 1508.8(a) ........................................................................................................ 16 40 C.F.R. § 1508.8(b) ........................................................................................................ 16 40 C.F.R. § 1508.9 ............................................................................................................ 26 40 C.F.R. § 1508.25 .......................................................................................................... 16 40 C.F.R. § 1508.25(a)(2) ................................................................................................. 35 40 C.F.R. § 1508.25(c) ...................................................................................................... 20 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 9 of 60 vii 40 C.F.R. § 1508.27 .............................................................................................. 36, 37, 38 40 C.F.R. § 1508.27(a) ...................................................................................................... 36 40 C.F.R. § 1508.27(b) ...................................................................................................... 37 40 C.F.R. § 1508.27(b)(7) ................................................................................................. 33 40 C.F.R. § 1508.28 ............................................................................................................ 5 43 C.F.R. § 46.140 ........................................................................................................ 5, 39 43 C.F.R. § 46.140(b) .................................................................................................... 6, 39 43 C.F.R. § 46.140(c) .................................................................................................... 6, 39 43 C.F.R. §§ 1600 et seq.. ................................................................................................. 10 43 C.F.R. § 1610.5-6 ......................................................................................................... 11 43 C.F.R. § 3101.1-2 ............................................................................................... 2, 11, 17 43 C.F.R. § 3101.1-3 ......................................................................................................... 11 43 C.F.R. §§ 3120 et seq. .................................................................................................. 11 43 C.F.R. § 3160.0-4 ......................................................................................................... 10 43 C.F.R. § 3162.3-1(c) ..................................................................................................... 11 OTHER AUTHORITIES: 79 Fed. Reg. 10,548 (Feb. 25, 2014) ............................................................... 12, 39, 41, 48 81 Fed. Reg. 51,866 (Aug. 5, 2016) .................................................................................. 20 81 Fed. Reg. 72,819 (Oct. 21, 2016) ........................................................................... 12, 41 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 10 of 60 1 INTRODUCTION Rising from the high deserts, the Santa Fe National Forest was established in 1915 and consists of 1.6-million acres of some of the most remarkable and treasured lands in the Southwest. Flourishing meadows, mesas, canyons and peaks give way to wild and scenic rivers and the headwaters of the Pecos, Jemez, and Gallinas Rivers. It contains four separate wilderness areas in the Pecos, San Pedro Parks, Chama, and Dome Wildernesses, and is home to prized fisheries and abundant wildlife. As the Wilderness Act describes, this is a place where “earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain” 16 U.S.C. § 1131(c). Yet immediately to the west, New Mexico’s San Juan Basin offers a stark contrast. One of the most heavily industrialized areas in the country for fossil fuel exploitation, the Basin is home to two separate mine-to-mouth coal-fired power plant complexes, a dreadful history of uranium mining, and a legacy of over 40,000 oil and gas wells which have been drilled. With public lands managed by the Bureau of Land Management (“BLM”) Farmington Field Office already over 90 percent leased for oil and gas, this case represents industry’s greedy push into the edges of the Basin and some of its last remaining untouched landscapes in the Santa Fe National Forest (“SFNF”). BLM’s October 2014 lease sale ushered in the next wave of oil and gas speculation, brought on by advancements in drilling technology and the ability to economically tap new shale oil bearing formations for the first time. The Forest Service authorized the sale and BLM issued leases on 13 parcels covering 20,146.67 acres in the SFNF without adequately considering and taking a hard look at the impacts of leasing on Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 11 of 60 2 environmental values and human communities; failed to justify a finding of no significant impact and decision to forego an environmental impact statement; caused unlawful prejudice and limited the choice of alternatives in a pending resource management plan amendment; and failed to consider significant new information and circumstances, in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., its implementing regulations, and agency policy and procedures. Plaintiffs in this action (collectively “Citizen Groups”) therefore respectfully request that this Court declare that Federal Defendants’ leasing decisions are arbitrary and capricious, set the approvals aside, and remand the matter to Federal Defendants. STATUTORY BACKGROUND I. MINERAL LEASING ACT Under the Mineral Leasing Act (“MLA”), 30 U.S.C. § 181 et seq., as amended, the Secretary of the Interior is responsible for managing and overseeing mineral development on public lands, not only to ensure safe and fair development of the mineral resource, but also to “safeguard[]…the public welfare.” 30 U.S.C. § 187. The Secretary has discretion, though constrained by the laws at issue in this case, to determine where, when, and under what terms and conditions mineral development should occur. 43 C.F.R. § 3101.1-2; 30 US.C. § 226(a). The grant of rights in a federal mineral lease is subject to a number of reservations of authority to the federal government, including reasonable measures concerning the timing, pace, and scale of development. Id. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 12 of 60 3 II. FEDERAL ONSHORE OIL AND GAS LEASING REFORM ACT Pursuant to the Federal Onshore Oil and Gas Leasing Reform Act (“FOOGLRA”), Forest Service and BLM share responsibility for the issuance of leases on forest lands. See 30 U.S.C. § 226(h). The Forest Service is responsible for implementing those portions of the lease that require lessees to conduct operations in a manner that minimizes adverse impacts to surface resources and other land uses and users. The Forest Service is required to comply with NEPA, NEPA’s implementing regulations, and the Forest Service’s own policies and procedures when analyzing oil and gas leasing decisions. 36 C.F.R. § 228.102(a). At the “leasing decision” stage, the Forest Service identifies specific parcels for leasing, performs specific environmental review on those parcels, and determines whether to authorize BLM to lease those parcels. See 36 C.F.R. § 228.102(e). At the “verification” stage, the Forest Service verifies that the leasing was adequately addressed in a NEPA document and is consistent with management plans. See 36 C.F.R. § 228.102(e)(1). If NEPA has not been adequately addressed, or if there is significant new information or circumstances requiring further analysis, pursuant to 40 C.F.R. § 1502.9, then the agency must complete additional environmental analysis before making a leasing decision for specific lands. 36 C.F.R. § 228.102(e)(1). III. NATIONAL ENVIRONMENTAL POLICY ACT NEPA is our “basic national charter for the protection of the environment.” 40 C.F.R. § 1500.1. It was enacted with the recognition that “each person should enjoy a healthful environment,” to ensure that the federal government uses all practicable means Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 13 of 60 4 to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,” and to “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences,” among other policies. 42 U.S.C. § 4331(b). NEPA regulations explain, at 40 C.F.R. §1500.1(c), that: Ultimately, of course, it is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. “Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. § 1501.2. To accomplish this purpose, NEPA requires that all federal agencies prepare a “detailed statement” regarding all “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). This statement, known as an environmental impact statement (“EIS”), must, among other things, describe the “environmental impact of the proposed action,” and evaluate alternatives to the proposal. Id. Alternatives, notably, are the “heart” of the NEPA process, ensuring that agencies “sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public.” 40 C.F.R. § 1502.14. To determine whether a proposed action significantly affects the environment, and whether an EIS is therefore required, regulations promulgated by the Council on Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 14 of 60 5 Environmental Quality (“CEQ”) provide for preparation of an environmental assessment (“EA”). Based on the EA, a federal agency either concludes its analysis with a finding of no significant impact (“FONSI”), or the agency goes on to prepare a full EIS. 40 C.F.R. § 1501.4. “If an agency decides not to prepare an EIS, it must supply a ‘convincing statement of reasons’ to explain why a project’s impacts are insignificant.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal citations omitted). “The statement of reasons is crucial to determining whether the agency took a ‘hard look’ at the potential environmental impact of a project.” Id.; Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). Pending completion of an EIS, an agency, inter alia: shall not undertake in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action: (1) Is justified independently of the program; (2) Is itself accompanied by an adequate environmental impact statement; and (3) Will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit alternatives. 40 C.F.R. § 1506.1(c). NEPA allows an agency to “tier” a site-specific environmental analysis for a proposed action to a broader EIS for a program or plan under which the subsequent action is carried out, allowing the agency to effectively streamline its analysis. 40 C.F.R. §§ 1502.20, 1508.28. However, Interior’s NEPA regulations specify that an EA tiering to a broader EIS “must include a finding that the conditions and environmental effects described in the broader NEPA document are still valid or address any exceptions.” 43 C.F.R. § 46.140. A site-specific EA “can be tiered to a programmatic or other broader- Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 15 of 60 6 scope [EIS] … for a proposed action with significant effects, whether direct, indirect, or cumulative, if … a broader [EIS] fully analyzed those significant effects.” Id. at § 46.140(c). Moreover, if the impacts analysis in the EIS “is not sufficiently comprehensive or adequate to support further decisions,” the agency EA must explain this and provide additional analysis. Id. at § 46.140(b). STANDING Citizen Groups’ have standing to bring this action. Standing requires a showing of injury, traceability, and redressability. S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013). An organization has standing “when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth v. Laidlaw, 528 U.S. 167, 181 (2000). In a NEPA case, as here, a plaintiff satisfies the injury requirement by showing (1) that the alleged NEPA violation creates an increased risk of environmental harm, and (2) that the plaintiff has a geographical nexus to or actual use of the area of the agency action. Comm. to Save Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996). “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that 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.” Friends of the Earth, 528 U.S. at 183; S. Utah Wilderness All., 707 at 1156 (finding injury where a declarant has “traversed through or within view of parcels of land where oil and gas development will occur, and Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 16 of 60 7 plans to return”). Actual environmental harm from complained-of activity need not be shown, as “reasonable concerns” that harm will occur are enough. Comm. to Save Rio Hondo, 102 F.3d at 450. To establish traceability, the plaintiff “need only show its increased risk is fairly traceable to the agency’s failure to comply with [NEPA],” i.e., from “the agency’s uninformed decisionmaking.” Id. at 451-52. Redressability is satisfied by showing that the plaintiff’s “injury would be redressed by a favorable decision requiring the [agency] to comply with [NEPA’s] procedures.” Id. at 452. Here, Citizen Groups meet this standard. Citizen Groups’ members are directly harmed by the Federal Defendants failure to comply with NEPA in approving and issuing 13 leases in the SFNF. Citizen Groups’ members routinely hike, recreate, camp, research, derive inspiration, and otherwise use areas on and near the SFNF lease parcels.1 Citizen Groups’ members’ activities and enjoyment of lease areas are both personal and professional, and include: recreational uses, solitude, night sky viewing, wildlife viewing, use of waters, birding, artistic endeavors, and aesthetic enjoyment.2 Having already witnessed the impact that oil and gas leasing and development can have on nearby landscapes, Citizen Groups’ members identify harm that will be suffered from lease 1 See, e.g., Graham Dec. ¶¶ 6, 7, 8, 9 (citing specific use of all parcels); Klingel Dec. ¶¶ 3, 8, 10 (citing specific use of parcels 1, 4-6, 9-14); Turner Dec. ¶ 11 (citing specific use of parcels 1, 5, 6, 8-14); Seamster Dec. ¶¶ 6, 11 (citing general use of SFNF near parcels); Eisenfeld Dec. ¶¶ 7, 8 (citing specific use of all parcels). 2 See, e.g., Graham Dec. ¶¶ 4, 5, 6; Klingel Dec. ¶¶ 3, 4, 5; Turner Dec. ¶¶ 3, 5, 9; Seamster Dec. ¶¶ 6, 7; Eisenfeld Dec. ¶¶ 7, 8, 10. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 17 of 60 8 development in the SFNF, which include not only their use and enjoyment of the areas, but also their health and safety.3 Citizen Groups’ members’ injuries can be traced to Federal Defendants’ authorization and issuance of the SFNF leases that did not undergo adequate NEPA, which threatens these areas with environmental harms causing negative impacts to air, water, landscapes, and other resources from impendent oil and gas development.4 Citizen Groups’ members’ injuries would be redressed by a favorable result in this suit because Federal Defendants would be required to sufficiently analyze the environmental impacts of 13 lease parcels in the Santa Fe National Forest. Such analysis is fundamental to NEPA’s role in agency decisionmaking, and could lead to a denial of the leases or additional stipulations that would lessen potential impacts to people, the environment, and nearby communities. “Under [NEPA], ‘the normal standards of redressability’ are relaxed; a plaintiff need not establish that the ultimate agency decision would change upon [NEPA] compliance.” Comm. to Save Rio Hondo, 102 F.3d at 452 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)). STANDARD OF REVIEW Courts review agency compliance with NEPA pursuant to the APA, which provides that a “reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or 3 See, e.g., Graham Dec. ¶¶ 10, 11, 12, 13; Klingel Dec. ¶¶ 6, 7, 8, 9, 10; Turner Dec. ¶¶ 4, 5, 7, 11, 12; Seamster Dec. ¶¶ 7, 10, 11; Eisenfeld Dec. ¶¶ 8, 10. 4 See, e.g., Graham Dec. ¶¶ 6, 10, 13; Klingel Dec. ¶¶ 5, 6, 7, 9, 10; Turner Dec. ¶¶ 6, 7, 10, 11; Seamster Dec. ¶¶ 8, 10, 11; Eisenfeld Dec. ¶¶ 6, 8, 9, 11, 12. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 18 of 60 9 otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178, 1182-83 (10th Cir. 2013) (NEPA compliance reviewed under “arbitrary and capricious” standard). Arbitrary and capricious review requires a court to “determine whether the agency considered all relevant factors and whether there has been a clear error of judgment.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994). Accordingly, agency action will be set aside if: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court may not “supply a reasoned basis for the agency’s action that the agency itself has not given.” Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Instead, “[a]n agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Id. at 50. Though this standard of review is ultimately narrow and agency action is “entitled to a presumption of regularity,” review must nevertheless be “searching and careful,” “thorough, probing, and in-depth.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, (1971). STATEMENT OF FACTS I. BLM’S OIL AND GAS PLANNING AND MANAGEMENT FRAMEWORK BLM manages onshore oil and gas leasing and development through a three-phase process. Each phase serves a distinct purpose, and is subject to unique rules, policies, and procedures, though the three phases, ultimately, must ensure “orderly and efficient” Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 19 of 60 10 development. 43 C.F.R. § 3160.0-4. Oil and gas development is a multiple use managed in accord with the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701 et seq. FLPMA, in 43 U.S.C. § 1701(a)(8), provides that BLM must manage the public lands: [I]n a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition, that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use. In the first phase of oil and gas decisionmaking, BLM prepares a resource management plan (“RMP”) in accordance with FLPMA and associated planning regulations, 43 C.F.R. §§ 1600 et seq., with additional guidance from BLM’s Land Use Planning Handbook (H-1601-1). An RMP predicts present and future use of public lands and their resources by establishing management priorities, as well as guiding and constraining BLM’s implementation-stage management. With respect to fluid minerals leasing decisions, the RMP determines which lands containing federal minerals will be open to leasing and under what conditions, and analyzes the landscape-level cumulative impacts from predicted implementation-stage development. BLM is further required to supplement its RMP and EIS if substantial changes in the proposed action occur 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). A reasonably foreseeable development scenario (“RFDS”) underlies BLM’s assumptions regarding the pace and scope of fluid Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 20 of 60 11 minerals development within the RMP planning area. In the second phase of oil and gas decisionmaking, BLM identifies the boundaries for lands to be offered for sale and proceeds to sell and execute leases for those lands through a lease sale. Leases are sold in accordance with 43 C.F.R. §§ 3120 et seq., with additional agency guidance outlined in BLM Instruction Memorandum (“IM”) No. 2010- 117 (hereafter “Leasing Reforms”). BLM012741. Prior to a BLM lease sale, BLM has the authority to subject leases to terms and conditions, which can serve as “stipulations” to protect the environment. 43 C.F.R. § 3101.1-3. Once BLM issues leases, it may impose conditions of approval (“COAs”) that are delimited by the terms and conditions of the lease. 43 C.F.R. § 3101.1-2. Oil and gas leases confer “the right to use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold.” Id. The third-phase occurs once BLM issues a lease, wherein the lessee is required to submit an application for permit to drill (“APD”) to BLM prior to drilling. 43 C.F.R. § 3162.3-1(c). At this stage, BLM may condition the approval of the APD on the lessees’ adoption of “reasonable measures” whose scope is delimited by the lease and the lessees’ surface use rights. 43 C.F.R. § 3101.1-2. II. BLM’S PLANNING AND MANAGEMENT GOVERNING SANTA FE NATIONAL FOREST LEASES BLM completed the current RMP for the Farmington planning area in 2003, BLM025433, with a RFDS that was finalized in 2001. BLM013503. BLM makes RMP revisions in accordance with 43 C.F.R. § 1610.5-6, including preparation of a new RMP Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 21 of 60 12 to amend or replace an existing one. RMP revisions are necessary if monitoring and evaluation findings, new data, new or revised policy, or changes in circumstances indicate that decisions for an entire plan or a major portion of the plan no longer serve as a useful guide for resource management. 43 U.S.C. § 1712(c). BLM determined that the 2003 RMP is no longer capable of guiding the agency’s fluid minerals leasing and development decisionmaking, and is currently engaged in preparing a RMP Amendment and EIS specific to the Mancos Shale/Gallup Formation (hereinafter “Mancos RMPA”). 79 Fed. Reg. 10,548 (Feb. 25, 2014). All 13 leases in the SFNF are within the planning area for the Mancos RMPA. Id. at 10,549 (“Lands and mineral estate managed by the BLM for other Federal agencies, such as the U.S. Forest Service and the Bureau of Reclamation, are included in this RMP Amendment process and the analysis area.”). Acknowledging the deficiencies of the 2003 RMP, BLM provides that “[a]s full- field development occurs, especially in the shale oil play, additional impacts may occur that previously were not anticipated in the RFD or analyzed in the current 2003 RMP/EIS which will require an EIS-level plan amendment and revision of the RFD for complete analysis of the Mancos Shale/Gallup Formation.” 79 Fed. Reg. 10,548. Other parcels originally included in the October 2014 lease sale were “deferred until the FFO Mancos Shale/Gallup Formation RMPA/EIS alternatives have been developed.” BLM010228. BLM recently reinitiated the scoping process for the Mancos RMPA “specific to the extension of analysis in that EIS to BIA decision-making where BIA manages mineral leasing and associated activities in the RMPA Planning Area.” 81 Fed. Reg. 72,819 (Oct. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 22 of 60 13 21, 2016). Accordingly, BLM has not yet developed alternatives for the RMP amendment. Not only is the SFNF in the planning area for the Mancos RMPA, but the Mancos Shale formation is the producing zone targeted for development on the challenged leases. BLM010276. III. FOREST SERVICE APPROVAL FOR SPLIT ESTATE LANDS IN THE SANTA FE NATIONAL FOREST The surface estate for the 13 SFNF leases included in BLM’s October 2014 lease sale is administered by the Forest Service Cuba Ranger District, Santa Fe National Forest. BLM’s Farmington Field Office administers the federal mineral estate, creating a federal “split estate” on the leases challenged herein. BLM010215. Pursuant to the Energy Policy Act of 2005, BLM and the Forest Service established a memorandum of understanding (“MOU”) regarding oil and gas leasing and operations on public lands under their joint jurisdiction. BLM011808. The MOU outlines coordination and responsibilities between BLM and the Forest Service regarding leasing decisions and the application of lease stipulations. Id. BLM issues and administers oil and gas leases on Forest Service lands only after the Forest Service authorizes leasing for specific lands. BLM011810. On September 25, 2013, the Forest Service Acting Director for Lands and Minerals issued a “letter of concurrence” to BLM concluding that the 2008 Santa Fe National Forest Oil-Gas Leasing Forest Plan Amendment (“2008 Forest Plan Amendment”), FS013743, and the Final Supplement to the Final Environmental Impact Statement for Oil-Gas Leasing, Santa Fe National Forest, Rio Arriba and Sandoval Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 23 of 60 14 Counties, New Mexico (“2012 Forest Plan Supplement”), FS016003, were “adequate for offering lands for competitive leasing” and identified specific SFNF parcels as available. FS016261; BLM000214. This letter of concurrence represents the Forest Service’s final agency action authorizing the sale of the 13 SFNF parcels. IV. BLM’S COMPETITIVE OIL AND GAS LEASE SALE FOR SANTA FE NATIONAL FOREST PARCELS On March 10, 2014, BLM released a list and map of 26 nominated parcels for inclusion in the October 2014 competitive oil and gas lease sale, BLM001622, initiating a two-week public scoping period. On March 24, 2014, Citizen Groups submitted scoping comments and associated exhibits to BLM. BLM001639. On or about May 1, 2014, BLM released a “draft” EA and unsigned FONSI for public review and comment. BLM003313. The draft EA stated that 35 parcels had been nominated for the October 2014 oil and gas lease sale, and included a “proposed action” that would lease 25 of those parcels, covering 23,325.4 acres under standard lease terms and conditions. BLM003314-15. On May 28, 2014, Citizen Groups submitted comments to BLM regarding the agency’s draft EA and unsigned FONSI. BLM003953. On or about July 16, 2014, BLM released a “final” EA and unsigned FONSI, initiating the protest period for the October 2014 lease sale. BLM006910. The final EA included a “preferred alternative” wherein 13 parcels covering 20,146.67 acres were included in the October 2014 lease sale. BLM006924. All 13 parcels are located in the SFNF, with a surface estate administered by the Forest Service. Id. BLM identified these parcels in the agency’s lease sale notice. BLM008105. As described in the final EA, Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 24 of 60 15 BLM deferred authorizing the other 12 parcels previously included in the proposed action “until the FFO Mancos Shale/Gallup Formation RMPA/EIS alternatives have been developed.” BLM006924. On August 14, 2014, Citizen Groups filed an administrative protest of BLM’s lease authorizations for the October 2014 sale, objecting to the sale of all 13 parcels in the SFNF. BLM007848. On October 22, 2014, BLM held the competitive oil and gas lease sale at the agency’s New Mexico State Office in Santa Fe, New Mexico. BLM posted the sale results the same day, indicating that all 13 parcels had been sold. BLM008151. On October 23, 2015, a year after all parcels were sold, BLM denied Citizen Groups’ Protest of the lease authorizations. BLM011314. And on October 28, 2015, BLM issued all 13 leases to Lessees. BLM011411. ARGUMENT I. BLM FAILED TO TAKE A HARD LOOK AT DIRECT, INDIRECT, AND CUMULATIVE IMPACTS OF OIL AND GAS LEASING BEFORE MAKING AN IRRETRIEVABLE COMMITMENT OF RESOURCES NEPA imposes “action forcing procedures … requir[ing] that agencies take a hard look at environmental consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (citations omitted) (emphasis added). The purpose of the “hard look” requirement is to ensure that the “agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983). These “environmental consequences” may be direct, indirect, or cumulative. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8. Direct effects “are caused by the action and occur at Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 25 of 60 16 the same time and place.” Id. § 1508.8(a). Indirect effects “are caused by the action and are later in time or farther removed in distance, but are still foreseeable.” Id. § 1508.8(b). “Indirect effects may include … effects on air and water and other natural systems, including ecosystems.” Id. A cumulative impact is the “impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7; see also 40 C.F.R. § 1508.25 (requiring that agencies take cumulative impacts into consideration during NEPA review). An environmental effect is “reasonably foreseeable” if it is “sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.” Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992). An agencies hard look examination “must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 712 (10th Cir. 2010) (citations omitted). “Looking to the standards set out by regulation and by statute, assessment of all ‘reasonably foreseeable’ impacts must occur at the earliest practicable point, and must take place before an ‘irretrievable commitment of resources’ is made.” New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 717 (10th Cir. 2009) (citations omitted); see also 42 U.S.C. § 4332(2)(C)(v); 40 C.F.R. §§ 1501.2, 1502.22; Sierra Club v. Hodel, 848 F.2d 1068, 1093 (10th Cir. 1988) (holding agencies Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 26 of 60 17 are to perform hard look NEPA analysis “before committing themselves irretrievably to a given course of action so that the action can be shaped to account for environmental values.”). The Tenth Circuit has concluded: “issuing an oil and gas lease without an NSO stipulation constitutes [an irretrievable] commitment of resources.” New Mexico, 565 F.3d at 718 (citations omitted); see also BLM12062 (BLM Handbook H–1624–1, stating: “By law, these impacts must be analyzed before the agency makes an irreversible commitment. In the fluid minerals program, this commitment occurs at the point of lease issuance.”). Oil and gas leases confer “the right to use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold.” 40 C.F.R. § 3101.1-2; BLM010219 (“Once sold, the lease purchaser has the exclusive right to use as much of the leased lands as is necessary to explore and drill oil and gas within the lease boundaries.”). As here, where “BLM could not prevent the impacts resulting from surface use after a lease issued, it was required to analyze any foreseeable impacts of such use before committing the resources.” New Mexico, 565 F.3d at 718-19. Accordingly, “NEPA require[s] an analysis of the site-specific impacts of [a lease sale] prior to its issuance, and BLM [acts] arbitrarily and capriciously by failing to conduct one.” Id. BLM acknowledges that oil and gas development “is reasonably foreseeable … [to] occur on leased parcels.” BLM010227. Yet, despite clear authority directing the agency otherwise, the BLM universally refused to analyze site-specific impacts, making the fatal assumption that “[t]he act of leasing the parcels would, by itself, have no Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 27 of 60 18 impact on any resources in the FFO. All impacts would be linked to as yet undetermined future levels of lease development.” BLM010266. This assumption guided the agency’s subsequent consideration of direct, indirect, and cumulative effects of oil and gas leasing and development to specific resources, in violation of NEPA. New Mexico, 565 F.3d at 718-19. A. BLM Failed to Take a Hard Look at Impacts from Leasing on Greenhouse Gas Emissions and Climate Change BLM fail to take a hard look at the direct, indirect, and cumulative environmental impacts of greenhouse gas (“GHG”) emissions caused by lease development. It is well settled that where an agency action causes GHG pollution, NEPA mandates that the agency analyze and disclose the impacts of that pollution. As the Ninth Circuit held: [T]he fact that climate change is largely a global phenomenon that includes actions that are outside of [the agency’s] control ... does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming. Center for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008) (quotations and citations omitted); see also Border Power Plant Working Grp. v. U.S. Dep’t of Energy, 260 F. Supp. 2d 997, 1028-29 (S.D. Cal. 2003) (finding agency failure to disclose project’s indirect carbon dioxide emissions violates NEPA). The need to evaluate such impacts is bolstered by the fact that “[t]he harms associated with climate change are serious and well recognized,” and environmental changes caused by climate change “have already inflicted significant harms” to many resources around the globe. Massachusetts v. EPA, 549 U.S. 497, 521 (2007); see also Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 28 of 60 19 id. at 525 (recognizing “the enormity of the potential consequences associated with manmade climate change.”). Although BLM quantifies direct GHG emissions from the leases in its EA, BLM010271-72, the agency disavows any responsibility for analyzing the impacts of these emissions: Leasing the subject tracts under either action alternative would have no direct impacts to climate change as a result of GHG emissions. Any potential effects to air quality from sale of a lease parcel would occur at such time that the lease was developed. The potential full development of the proposed lease sale is estimated at 118 oil wells. BLM010270. In other words, although GHG emissions from lease development are foreseeable and would result in 11,611 metric tons of direct CO2e emissions5— which BLM attempts to diminish by comparing this numeric contribution to total U.S. GHG emissions—BLM arbitrarily concludes that such emissions are insignificant because the act of leasing is essentially paper transaction. However, courts have rejected this excuse for deferring analysis to the permitting stage. See, e.g., New Mexico, 565 F.3d at 718-19 (holding that BLM “was required to analyze any foreseeable impacts of [leasing] before committing the resources.”). Critically, the agency also purposefully ignores downstream GHG emissions from 5 BLM010272. Notably, BLM significantly underestimates direct emissions by using outdated data on the warming potential of methane, a significant component of natural gas. BLM010168 (“methane has a global warming potential that is 21-25 times greater than the warming potential of CO2.”). While BLM failed to disclose both foreseeable emissions by source and assumptions with regard to leak rates, the IPCC’s most recent and best available science states that methane’s global warming potential is 87 over a 20- year timeframe. BLM007870 (citing Intergovernmental Panel on Climate Change, Working Group I Contribution to the IPCC Fifth Assessment Report Climate Change 2013: The Physical Science Basis, at 8-58 (Table 8.7) (Sept. 2013)). Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 29 of 60 20 consumption of the oil and gas produced from the challenged leases, stating there is not “an indirect effect of oil and gas production because production is not a proximate cause of GHG emissions resulting from consumption. However, emissions from consumption and other activities are accounted for in the cumulative effects analysis.” BLM010269. This conclusion is arbitrary, not supported by the record, and contrary to NEPA, agency guidance, and case law. 40 C.F.R. § 1508.25 (c) (scope of environmental analysis must include indirect impacts).6 NEPA broadly requires agencies to consider “any adverse environmental effects which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332(2)(C)(ii). First, as detailed below, BLM did not take a hard look at downstream GHG emissions from the leases in its cumulative effects analysis. Thus, referring to a non- existent analysis cannot save the agency. The court cannot “defer to a void.” High Country Conserv. Advocates v. U.S. Forest Service, 52 F. Supp. 3d 1174, 1186 (D. Colo. 2015) (quoting Or. Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1121 (9th Cir. 2010). Second, it is well established that foreseeable downstream emissions are precisely the type of indirect effect the agency must consider and analyze. See WildEarth Guardians v. U.S. OSMRE, 104 F. Supp. 3d 1208, 1229–30 (D. Colo. 2015), vacated as moot, (recognizing that “combustion is therefore an indirect effect of the approval of the 6 See CEQ Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 81 Fed. Reg. 51,866 (Aug. 5, 2016) at 16 n.42 (providing “where the proposed action involves fossil fuel extraction … the [indirect impacts] associated with the end-use of the fossil fuel being extracted would be the reasonably foreseeable combustion”). Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 30 of 60 21 mining plan modifications”); Diné Citizens Against Ruining Our Env't v. U.S. OSMRE, 82 F. Supp. 3d 1201, 1213 (D. Colo. 2015), vacated as moot, (holding that “coal combustion-related impacts of … proposed expansion are an ‘indirect effect’ requiring NEPA analysis.”); High Country, 52 F. Supp. 3d at 1189–90 (recognizing that the agencies “do not dispute that they are required to analyze the indirect effects of GHG emissions”). Here, BLM recognizes it is both reasonably foreseeable that oil and gas development will occur on lease parcels, BLM010227, and that such development will result in combustion emissions. BLM10294. Accordingly, BLM was required to consider the indirect impacts of downstream emissions. Refusing to do so here violates NEPA. See Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 549–50 (8th Cir. 2003) (holding that “when the nature of the effect is reasonably foreseeable but its extent is not, we think that the agency may not simply ignore the effect”); High Country, 52 F. Supp. 3d at 1197–98 (D. Colo. 2014) (holding that “reasonably foreseeable effect[s] must be analyzed, even if the precise extent of the effect is less certain”); see also, e.g., WildEarth Guardians, 104 F.Supp.3d at 1230 (accord); City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir.1975) (accord). Finally, BLM considers its NEPA obligation to analyze GHG impacts satisfied based on the assurance that “[t]he Field Office will work with industry to facilitate the use of the relevant BMPs for operations proposed on Federal mineral leases where such mitigation is consistent with agency policy.” BLM010272. This approach is fundamentally incongruous with NEPA’s hard look mandate, and fails to take these Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 31 of 60 22 emissions in particular and, more broadly, the impacts climate change, seriously. Northern Plains Resource Council v. Surface Transp. Bd., 668 F.3d 1067, 1084-85 (9th Cir. 2011) (recognizing that “reliance on mitigation measures presupposes approval. It assumes that—regardless of what effects construction may have on resources—there are mitigation measures that might counteract the effect without first understanding the extent of the problem. This is inconsistent with what NEPA requires.”). BLM’s failure to even consider, let along quantify and analyze, foreseeable GHG emissions from SFNF leases violates NEPA. Moreover, BLM has recognized that “increasing concentrations of GHGs are likely to accelerate the rate of climate change.” BLM010236. Yet, BLM ignores this relationship when refusing to analyze cumulative impacts to climate change from the lease sale because “the very small increase in GHG emissions…would not produce climate change impacts.” BLM010282. BLM reasoned, “climate change is a global process” and that the “incremental contribution to global GHG’s from the proposed action cannot be translated into effects on climate change globally or in the area of this site-specific action.” Id. In short, BLM is describing the nature of climate change—that incremental contributions of GHGs are causing global impacts—which does not excuse the agency’s NEPA obligations. Rather, NEPA mandates that BLM disclose and consider the reasonably foreseeable effects of proposed actions, including cumulative effects, using data and analysis to reveal the proportional impact of the proposed action. See 40 C.F.R. § 1502.15; id. § 1502.2(b); Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 504 (9th Cir. 2014) (recognizing that “[i]t is only at the lease sale stage that the agency can Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 32 of 60 23 adequately consider cumulative effects of the lease sale on the environment, including … the effects of the sale on climate change.”). BLM relies exclusively on the Air Resources Technical Report (“ARTR”)—to which the EA tiers—to satisfy its NEPA obligations with regard to climate change. BLM010282. The ARTR “discusses the relationship of past, present and future predicted emissions to climate change and the limitations in predicting local and regional impacts related to emissions.” Id.; see also BLM12587. Although the ARTR provides a broad overview of oil and gas emissions for a four state region, the document, in isolation, does not satisfy the type of site-specific NEPA analysis required here. As the ARTR acknowledges, it is a “generic” document intended to “summarize the technical information on air quality and climate change relative to all Environmental Assessment (EAs) and Application for Permit to Drill (APD) and Lease sales.” BLM12590. BLM’s reliance on the ARTR as a surrogate for a cumulative impacts analysis is arbitrary. The agency cannot tier to a non-NEPA document “that has not itself been subject to NEPA review.” Kern v. BLM, 284 F.3d 1062, 1073 (9th Cir. 2002) see also S. Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718, 726 (9th Cir. 2009) (holding that “[a] non-NEPA document … cannot satisfy a federal agency's obligations under NEPA.”); Idaho v. Interstate Commerce Comm’n, 35 F.3d 585, 595 (D.C. Cir. 1994) (citation and alteration omitted) (recognizing that attempting “to rely entirely on the environmental judgments of other agencies [is] in fundamental conflict with the basic purpose of NEPA.”). Here, not only is the ARTR not a NEPA document, it does not evaluate whether GHG emissions from a multitude of sources are Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 33 of 60 24 cumulatively significant. BLM’s conclusion that cumulative GHG emissions from the lease sale will be insignificant is also arbitrary because BLM simply assumed that because the lease’s numeric contribution to “global” and “regional” emissions would be small, that any environmental impacts from project emissions would be correspondingly small. BLM010282; see also BLM012623-25 (ARTR using a similar scale of global, national and state emissions); BLM010271-72 (Table 23, showing GHG emission from the lease sale are 0.0018% of U.S. GHG emissions from all sources). However, there is no record evidence supporting BLM’s approach of using the amount and proportion of GHG emissions as a proxy for assessing the significance of project-level GHG emissions, and courts have squarely rejected this approach as sufficient to comply with NEPA. See, e.g., Center for Biological Diversity, 538 F.3d at 1216. The San Juan Basin has over 15,000 active oil and gas wells, two massive mine-to- mouth coal-fired power plant complexes—the Navajo Mine and Four Corners Power Plant, and the San Juan Mine and San Juan Generating Station—as well as vast infrastructure and transportation systems servicing the region’s fossil fuel exploitation. BLM010172; BLM010281. The impact of such development on the area’s air, water, land, and human communities cannot be overstated. Yet, BLM dismissively concludes that “[p]reserving as much land as possible and applying appropriate mitigation measures will alleviate the cumulative impacts.” BLM010281. Such conclusory statements—with no supporting analysis, detail, plan, or identification of actual mitigation measures—fail to satisfy NEPA. See Natural Resources Defense Council v. Hodel, 865 F.2d 288, 298 Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 34 of 60 25 (D.C. Cir. 1988) (“conclusory remarks … do not equip a decisionmaker to make an informed decision.”); Northern Plains, 668 F.3d at 1085 (“[M]itigation measures, while necessary, are not alone sufficient to meet the [Agency’s] NEPA obligations to determine the projected extent of the environmental harm to enumerated resources before a project is approved.”). Having already leased over 90 percent of BLM managed lands to oil and gas, BLM also fails to identify which lands it intends to preserve. Critically, BLM also fails to take the essential next step required for a hard look: actually analyzing how the incremental contribution of lease emissions—combined with other sources of cumulative emissions—will impact resource values in the SFNF. 40 C.F.R. § 1508.7. In fact, nowhere in BLM’s EA or the ARTR does the agency describe the type of impacts GHG emissions will have on resources. Instead, BLM dismisses needing to do any analysis of GHG impacts with the assertion that “while BLM actions may contribute to climate change, the specific effects of those actions on global or regional climate are not quantifiable.” BLM012623. This is both arbitrary and contradicted by the record. As recognized by a 2007 U.S. Government Accountability Office (“GAO”) report: [C]limate change is likely to affect federal resources in a number of ways. For example, the experts said that climate change has already caused—and will likely continue to cause—physical changes, including drought, floods, glacial melting, seal level rise, and ocean acidification. Climate change will also cause biological changes, such as increases in insect and disease infestations, shifts in species distribution and abundance, and changes in the timing of natural events, among others. The experts further said that climate change is likely to adversely affect economic and social goods and services supported by federal resources, including recreation, tourism, infrastructure, water supplies, fishing, ranching, and other resource uses. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 35 of 60 26 BLM018707; see also, e.g., BLM018873 (Scientific Assessment of the Effects of Global Change on the United States). “The ways global warming and its associated climate changes are likely to affect the Southwest include higher temperatures, with more heat waves; more droughts and, paradoxically, more floods; less snow cover, with more strain on water resources; and an earlier spring with more large wildfires.” BLM019148 (describing in detail regional climate change impacts on resources in the Southwest). Because BLM failed to mention, let alone apply, these quantified and observable impacts of climate change on resources in the SFNF, the EA did not comply with NEPA. 40 C.F.R. § 1502.15 (discussing use of data and analysis to describe affected environment); id. § 1502.16 (detailing analysis of environmental consequences); id. § 1502.24 (requiring agencies to use high quality information and ensure professional and scientific integrity); id. § 1508.9 (discussing environmental assessment). B. BLM Failed to Take a Hard Look at Impacts from Leasing on Air Quality BLM also failed to take a hard look at the impacts of leasing in the SFNF on air quality. With particular regard to cumulative impacts to air quality, BLM concluded: The very small increase in emissions that could result from approval of the action alternatives would not result in any county in the FFO area exceeding the [National Ambient Air Quality Standards (NAAQS)] for any criteria pollutants…. The emissions from any wells drilled in the leased areas are not expected to impact the 8-hour average ozone concentrations, or any other criteria pollutants in the Southern San Juan Basin. BLM010282. This conclusion is unsupported by the record. Although BLM includes monitored values for criteria pollutants in San Juan County as a whole in a separate section of the EA, BLM010234 (Table 4), the agency fails to quantify the foreseeable Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 36 of 60 27 direct emissions of criteria pollutants that will result from the proposed action. Without knowing air pollution levels and their impacts in the previously undeveloped project area, it is therefore impossible for BLM to support its conclusion that the sale would result in a “very small increase” in emissions or that this incremental increase would not cumulatively impact air quality in the project area in a significant manner—let alone provide the hard look analysis NEPA demands. 40 C.F.R. § 1508.7; Hanly v. Kleindienst, 471 F.2d 823, 831 (2d Cir. 1972) (stating that “[o]ne more [well] polluting air and water … may represent the straw that breaks the back of the environmental camel.”). Courts have rejected this type of piecemeal analysis: Consideration of cumulative impacts requires ‘some quantified or detailed information; … [g]eneral statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.’ The cumulative impact analysis must be more than perfunctory; it must provide a ‘useful analysis of the cumulative impacts of past, present, and future projects.’ Kern, 284 F.3d at 1075 (citations omitted); see also Grand Canyon Trust v. F.A.A., 290 F.3d 339, 342 (D.C. Cir. 2002) (holding that an “agency’s [environmental analysis] must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum.”). Moreover, even if BLM had demonstrated that lease development in a previously undeveloped area would not result in violations of an NAAQS, BLM’s NEPA obligation to take a hard look at cumulative impacts to air quality is separate and distinct from compliance with the Clean Air Act because the NAAQS are not the sole measuring standards for assessing whether lease development will significantly affect air quality. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 37 of 60 28 See, e.g., Colorado Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233, 1257 (D. Colo. 2012) (“The mere fact that the area has not exceeded ozone limits in the past is of no significance when the purpose of the EIS is to attempt to predict what environmental effects are likely to occur in the future[.]”). Therefore, BLM was not excused from taking a hard look at cumulative air quality impacts in its EA. Finally, although it had the means to do so, BLM failed to aggregate or model the cumulative air quality effects of the lease sale with all other actions impacting air quality in the planning area. BLM notes that “[t]he primary activities that contribute to levels of air pollutant and GHG emissions in the Four Corners area are electricity generation stations, fossil fuel industries and vehicle travel.” BLM010281. BLM also cites to the ARTR which provides “a description of the varied sources of national and regional emissions.” Id. Yet BLM did not place these emission levels in any context to be able to analyze the effect they may have on regional air quality, or the future likelihood of remaining below the NAAQS for criteria air pollutants once the leases are developed and their emissions are added to current emissions levels form other sources. This failure violates NEPA. See Colorado Envtl. Coal., 875 F. Supp. 2d at 1256 (holding a BLM leasing decision arbitrary where the agency “failed to take the requisite ‘hard look’ at the air quality effects from its decision, when accumulated with air quality effects from anticipated oil and gas development outside the Planning Area”). By failing to perform any cumulative analysis of impacts to air quality from lease development, BLM failed to consider a relevant factor and important aspect of the problem. Motor Vehicle Mfrs., 463 U.S. at 43; Olenhouse, 42 F.3d at 1574. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 38 of 60 29 C. BLM Failed to Take a Hard Look at Impacts from Leasing on Water Resources BLM also failed to take a hard look at the direct, indirect, and cumulative impacts on water resources in the SFNF. Water resources are particularly vulnerable given the massive quantities of water required in the drilling of oil and gas wells using hydraulic fracturing (or “fracking”), as well as the chemicals added to the fracking fluids, which threaten to contaminate groundwater and surface water. BLM010276. BLM acknowledges that it is foreseeable that fracking will occur on leased parcels, and that “[h]ydraulic fracturing is a common process in the San Juan Basin and applied to nearly all wells drilled.” BLM010276. 1. Impacts to water quantity BLM fails to quantify how much water will be required for the development of SFNF leases, or the amount of water foreseeably required to drill and fracture each well. The record shows these volumes could be massive, and that “[w]ater used in drilling and particularly in hydraulic fracturing can amount to between 2 million and 8 million gallons per well.” BLM048047. By this count, lease development would foreseeably consume between 236 million and 944 million gallons of water. Yet BLM’s only statement with regard to water consumption fails to address the impact of this level of water use: The water used for hydraulic fracturing in the Farmington Field Office generally comes from permitted groundwater wells, although surface water sources may occasionally be used. Because large volumes of water are needed for hydraulic fracturing, the use of groundwater for this purpose might contribute to the drawdown of groundwater aquifer levels. Groundwater use is permitted and managed by the New Mexico Office of the State Engineer, and these water rights have already been designated. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 39 of 60 30 BLM010276 (emphasis added). In an arid region already suffering from prolonged drought, such a vague and shallow assessment falls far short of the agency’s hard look obligation under NEPA. Methow Valley, 490 U.S. at 350. There is no discussion of how the groundwater drawdown from lease development will impact the land, forests, wildlife, livestock, or human communities in the planning area, or how these impacts are further compounded in a drought-stricken southwest, which is poised to worsen in the face of climate change. BLM019148 Whether or not BLM is responsible of allocation of water rights is not relevant to the question of whether the agency has satisfied its NEPA obligations. BLM is required to analyze the environmental consequences of “reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. §§ 1508.7, 1502.16; Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1176 (10th Cir. 1999). Nearly one-billon gallons of water could be permanently removed from the hydrologic system as a result of BLM’s lease issuance, and the agency has a duty to disclose and analyze what the impact of this magnitude of water removal might be. The agency has altogether failed to do so here, rendering the agency’s conclusions about water quantity impacts arbitrary. 2. Impacts to groundwater quality BLM similarly failed to take a hard look at impacts to groundwater quality. The starting point for the agency’s consideration of groundwater quality is the assertion that “[t]here are no verified instances of hydraulic fracturing adversely affecting groundwater Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 40 of 60 31 in the San Juan Basin.” BLM010276. Simply because there are “no verified instances” of contamination7—in a region of poor and underserved populations, and with no basis in the record to support this statement—does not obviate the agency’s requirement to take a hard look. In fact, BLM admits that “[c]ontamination of groundwater could occur without adequate cementing and casing of the proposed well bore.” BLM010276. And the agency further acknowledges that “potential for impacts to groundwater from the well bores would be long term for the life of the well.” BLM010276. In other words, it is both foreseeable that groundwater contamination could occur, and, if and when it does, the impacts would last a very long time. Yet, the agency dismissively concludes: “Adherence to APD COAs and other design measures would minimize potential effects to groundwater quality.” BLM010276. “A ‘perfunctory description,’ or ‘mere listing of mitigation measures, without supporting analytical data,’ is insufficient to support a finding of no significant impact.” National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 735 (9th Cir. 2001). Here, BLM does not even list the mitigation measures it is relying on to conclude that groundwater quality will not be significantly impacted. Unspecified mitigation and unsupported conclusions fail to demonstrate an “adequate buffer against the negative impacts” to groundwater quality and fail to determine “whether the mitigation measures will render such impacts so minor as to not warrant an EIS.” National Parks, 241 F.3d at 735. 7 Cf. BLM035617; BLM035633; BLM035872; BLM035930; BLM035974; BLM036951; BLM036988; BLM037021; BLM037033. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 41 of 60 32 Moreover, BLM also assumes that the targeted Mancos Shale formation is “overlain by a continuous confining layer,” that the “total depth of each well bore would be 6,700 feet below the ground surface,” and that “[f]racturing in the Basin Mancos formation is not expected to occur above depths above 5,700 feet.” BLM010276. However, as the Forest Service recognized, the Mancos Shale formation experiences uplift as it moves east, and in the SFNF “Mancos wells are usually shallow (less than 4,000 feet deep).” FS016027. Indeed, many of the assumptions BLM relies on to conclude that impacts to groundwater resources will not be significant are incorrect, or at the very least unsupported. Therefore, BLM’s conclusions relating to impacts to groundwater quality are arbitrary. 3. Impacts to surface water quality BLM also failed to take a hard look at impacts to surface water quality. The extent of BLM’s consideration of surface water impacts from lease development is limited to one paragraph containing two sentences: There would be the potential for accidental spills or releases of these materials, which could impact local water quality. The potential for surface water quality impacts from accidental spill or releases of hazardous materials on the well pads would be long term for the life of the wells. BLM010277. There is no discussion of the severity of these impacts, mitigation measure to reduce impacts, or any other explanation supporting BLM’s determination that these impacts are insignificant. Because BLM has “offered an explanation that runs counter to the evidence before the agency,” BLM‘s consideration of impacts to surface water quality was arbitrary. Motor Vehicle, 463 U.S. at 43. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 42 of 60 33 D. BLM Failed to Take a Hard Look at Cumulative Impacts of Lease Development Finally, BLM has failed to take a hard look at the cumulative impacts of lease development to specific resources. Although BLM includes a “Cumulative Impacts” section in its EA, BLM010280, BLM fails to conduct any actual cumulative analysis of impacts to resource values. Instead, BLM makes the following general statement about leasing’s cumulative impacts: Cumulative impacts include the combined effect of past projects, specific planned projects and other reasonably foreseeable future actions such as other infield wells being located within this lease. Potential cumulative effects may occur should an oil and gas field be discovered if this parcel was drilled and other infield wells are drilled within this lease or if this lease becomes part of a new unit. All actions, not just oil and gas development may occur in the area, including foreseeable non-federal actions. BLM010266 (emphasis added). However, a general acknowledgement that cumulative environmental impacts may occur from development of the leases does not satisfy BLM’s obligation under NEPA to identify these impacts and assess their significance. See Natural Resources Defense Council, 865 F.2d at 298 (providing that section headings without the “requisite analysis” are insufficient for NEPA compliance); see also 40 C.F.R. § 1508.27(b)(7) (requiring that BLM consider whether the proposed action is related to other actions that together may have cumulatively significant impacts. “Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.”). An “agency’s [environmental analysis] must give a realistic evaluation of the total impacts and cannot isolate a proposed project, Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 43 of 60 34 viewing it in a vacuum.” Grand Canyon Trust, 290 F.3d at 342. Here, BLM improperly avoided analyzing the cumulative impacts of its leasing decision by deferring analysis until the permitting stage when lease development is a foregone conclusion. BLM’s cumulative impacts section discusses just two resources: air quality and climate change. Yet, for both, BLM dismissively concludes that development of the 13 leases will not cumulatively impact these resources, as detailed above. See BLM010282. BLM altogether fails to discuss potential cumulative impacts to any other resource. This omission is arbitrary because BLM admits in the EA that specific impacts to other resource values are foreseeable. See, e.g., BLM010269 (describing impacts to air resources); BLM010273 (describing impacts to cultural resources); BLM010276 (describing impacts to groundwater); BLM010175 (describing impacts to surface water); BLM010277 (describing impacts to soil); BLM010279 (describing impacts to wildlife). BLM also admits that foreseeable lease development includes: constructing a well pad and access road, drilling a well using a conventional pit system or closed-loop system, hydraulically fracturing the well, installing pipelines and/or hauling produced fluids, regularly monitoring the well, and completing work-over tasks throughout the life of the well. In Farmington, typically, all of these actions are undertaken during development of an oil or gas well; it is reasonably foreseeable that they may occur on leased parcels. BLM010227. Yet BLM failed to assess whether any of these actions would result in cumulatively significant impacts. “An EA’s analysis of cumulative impacts must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.” Te-Moak Tribe of W. Shoshone of Nevada v. U.S. Dep't Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 44 of 60 35 of Interior, 608 F.3d 592, 603 (9th Cir. 2010) (internal quotation and citation omitted)); see also New Mexico, 565 F.3d at 713 n.36 (recognizing that 40 C.F.R. § 1508.25(a)(2) requires “effects must be considered cumulatively, and impacts that are insignificant standing alone continue to require analysis if they are significant when combined with other impacts.”); Dombeck, 185 F.3d at 1176; 40 C.F.R.§ 1508.8 (including “ecological, aesthetic, historical, cultural, economic, social and health impacts”). “In order for Plaintiffs to demonstrate that the BLM failed to conduct a sufficient cumulative impact analysis, they need not show what cumulative impacts would occur… only the potential for cumulative impact.” Te-Moak Tribe, 608 F.3d at 605. The court reasoned that, “[t]o hold otherwise would require the public, rather than the agency, to ascertain the cumulative effects of a proposed action.” Id. Here, BLM has made an initial determination that “the potential for cumulative impacts” to other resources from lease development exists, but has not identified or analyzed whether these impacts will be significant. Because BLM failed to consider a relevant factor and important aspect of the problem, its leasing decision was arbitrary. Motor Vehicle Mfrs., 463 U.S. at 43. II. BLM FAILED TO PROVIDE A CONVINCING STATEMENT OF REASONS TO JUSTIFY ITS DECISION TO FOREGO PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT For “major federal actions significantly affecting the quality of the human environment,” federal agencies must prepare an EIS. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4. A federal action “affects” the environment when it “will or may have an effect” on the environment. 40 C.F.R. § 1508.3 (emphasis added); see also Airport Neighbors Alliance v. U.S., 90 F.3d 426, 429 (10th Cir. 1996) (stating that an EIS is Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 45 of 60 36 required if a “proposed action may ‘significantly affect’ the environment”); Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983) (accord). Similarly, according to the Ninth Circuit: an EIS must be prepared if ‘substantial questions are raised as to whether a project ... may cause significant degradation to some human environmental factor.’ To trigger this requirement a ‘plaintiff need not show that significant effects will in fact occur,’ [but instead] raising ‘substantial questions whether a project may have a significant effect’ is sufficient. Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149-50 (9th Cir. 1998) (citations omitted) (emphasis original). In the Tenth Circuit, review of the decision not to prepare an EIS requires the court to determine “whether the agency acted arbitrarily and capriciously in concluding that the proposed action will not have a significant effect on the human environment.” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004) (quoting Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir.2002)). Federal agencies determine whether direct, indirect, or cumulative impacts are significant by accounting for both the “context” and “intensity” of those impacts. 40 C.F.R. § 1508.27. Context “means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality” and “varies with the setting of the proposed action.” 40 C.F.R. § 1508.27(a). Intensity “refers to the severity of the impact” and is evaluated according to several additional elements, including, for example: unique characteristics of the geographic area such as ecologically critical areas; the degree to which the effects are likely to be highly controversial; the degree to which the possible Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 46 of 60 37 effects are highly uncertain or involve unique or unknown risks; and whether the action has cumulatively significant impacts. Id. § 1508.27(b). Courts have found that “[t]he presence of one or more of [the CEQ significance] factors should result in an agency decision to prepare an EIS.” Fund for Animals v. Norton, 281 F.Supp.2d 209, 218 (D.D.C. 2003) (quoting Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1023 (9th Cir. 2003)). “Judicial review of an agency’s finding of ‘no significant impact’ is not, however, merely perfunctory as the court must insure that the agency took a ‘hard look’ at the environmental consequences of its decision.” Peterson, 717 F.2d at 1413 (citing Kleppe, 427 U.S. at 410 n. 21). As detailed above, BLM failed to take a hard look at the direct, indirect, and cumulative impacts of its leasing decision. The agency’s discussion of resource values also failed to account for the context and intensity of potential impacts, including effects the region’s air, water, and landscapes, as well as factors of intensity such as the unique geology and ecology of the area, uncertainty as a result of climate change and the threats posed by fracking, controversy around these effects, and the cumulative toll that this and other development has inflicted on the region. 40 C.F.R. § 1508.27. The record contains no evidence that BLM considered the context and intensity of impacts in reaching its decision. BLM also failed to “put forth a ‘convincing statement of reasons’ that explains why the project will impact the environment no more than insignificantly.” Ocean Advoc. v. U.S. Army Corps of Engrs., 402 F.3d 846, 864 (9th Cir. 2005). Such a Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 47 of 60 38 statement “proves crucial to evaluating whether the [agency] took the requisite ‘hard look.’ ” Id. BLM does not provide a statement in either its EA or FONSI explaining the basis for its determination that development of the challenged leases will not have significant environmental impacts. Instead, BLM offers unsupported assumptions, framed as conclusions, that “[t]he act of leasing the parcels would, by itself, have no impact on any resources in the FFO,” BLM010266, and that “[p]reserving as much land as possible and applying appropriate mitigation measures will alleviate the cumulative impacts.” BLM010281. Yet BLM makes these assertions at the same time it suggests that substantive analysis of site-specific impacts can be deferred until the APD stage—which, as described above, is inconsistent with the Tenth Circuit’s mandate that BLM analyze the impacts of leasing before making an irretrievable commitment of resources. New Mexico, 565 F.3d at 718-19. Here, BLM’s FONSI consists of one paragraph, providing: The impacts of leasing the fluid mineral estate in the areas described with this EA have been previously analyzed in the 2003 Farmington RMP, the 2002 Biological Assessment, and the Final Environmental Impact Statement (FEIS) for Oil and Gas Leasing and Roads Management, Santa Fe National Forest; and the lease stipulations that accompany the tracts proposed for leasing would mitigate the impacts of future development on these tracts. Therefore, preparation of an Environmental Impact Statement is not warranted. BLM010213. This vague statement tiering to inoperable planning documents, generic stipulations, and unspecified mitigation fails to satisfy the agency’s NEPA mandate. Cf. 40 C.F.R. § 1508.27. It also fails to provide a convincing statement explaining the agency’s decision to forego an EIS. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 48 of 60 39 Furthermore, even if BLM concluded that an EIS was not necessary for its leasing decision because the impacts of this decision were already addressed in the 2003 RMP and EIS, the agency was still required to support that decision. NEPA regulations specify that an EA tiering to a broader EIS “must include a finding that the conditions and environmental effects described in the broader NEPA document are still valid or address any exceptions.” 43 C.F.R. § 46.140. If the impacts analysis in the programmatic EIS “is not sufficiently comprehensive or adequate to support further decisions,” the agency’s EA must explain this and provide additional analysis. Id. at § 46.140(b). BLM includes no such statement or explanation in its EA. Moreover, a site-specific EA “can be tiered to a programmatic or other broader-scope [EIS] … for a proposed action with significant effects, whether direct, indirect, or cumulative, if … a broader [EIS] fully analyzed those significant effects.” Id. at § 46.140(c). As BLM has itself recognized in its Notice of Intent to prepare a RMP Amendment and EIS to the current 2003 Farmington RMP: Subsequent improvements and innovations in horizontal drilling technology and multi-stage hydraulic fracturing have enhanced the economics of developing [the Mancos Shale] horizon … As full-field development occurs, especially in the shale oil play, additional impacts may occur that previously were not anticipated in the [2001] RFD or analyzed in the current 2003 RMP/EIS, which will require an EIS-level plan amendment.8 79 Fed. Reg. 10,548. Because the Mancos Shale is the producing zone targeted for development of the leases, BLM010276, and additional impacts are anticipated that have not been analyzed and which require an EIS, BLM’s FONSI stating that “impacts of leasing the fluid mineral estate in the areas described with this EA have been previously 8 See also Scoping Report (Nov. 2014) (describing different impacts and areas being developed). JA 00742; JA 00072. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 49 of 60 40 analyzed in the 2003 Farmington RMP” is both unsupported and directly contrary to its own admissions. Accordingly, BLM cannot tier to the 2003 Farmington RMP to fill any void that exists in the EA’s analysis. BLM fails to take the hard look at the impacts of lease development on the parcels included in the EA, which in turn cannot support its FONSI. BLM’s leasing decision is therefore arbitrary and must be reversed. Greater Yellowstone, 359 F.3d at 1274. III. BLM UNLAWFULLY ISSUED LEASES CAUSING PREJUDICE AND LIMITING THE CHOICE OF ALTERNATIVES IN THE PENDING RESOURCE MANAGEMENT PLAN AMENDMENT NEPA establishes a duty “to stop actions that adversely impact the environment, that limit the choice of alternatives for the EIS, or that constitute an ‘irreversible and irretrievable commitment of resources.’” Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988). This duty is codified in 40 C.F.R. § 1506.1(c), recognizing that agencies shall not undertake action—such as issuing leases—when that action will cause prejudice or limit the choice of alternatives in the required EIS.9 BLM’s issuance of the challenged leases during the RMP amendment process—which is analyzing the impacts of decisions such as this one—violates this duty. See Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1330 (4th Cir.1972) (holding that an injunction was required until the agency completed final action on the EIS). BLM’s Farmington Field Office is in the midst of a RMP Amendment and accompanying EIS to consider, for the first time, the landscape level impacts from 9 Defining “prejudice” as interim action that “tends to determine subsequent development.” Id. at § 1506.1(c)(3). Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 50 of 60 41 reasonably foreseeable development of the Mancos Shale formation using fracking. 79 Fed. Reg. 10,548; 81 Fed. Reg. 72,819. Mancos Shale is the producing zone targeted for development of the challenged leases. BLM010276. Proceeding with the issuance of these leases before completing the Mancos RMPA limits BLM’s choice of alternatives in the EIS for the RMPA, including an alternative that decides not to lease these parcels. A robust analysis of alternatives to the proposed action is a foundational requirement of any NEPA analysis. Colorado Envtl. Coal., 185 F.3d at 1174 (recognizing “the heart” of an environmental analysis under NEPA is the analysis of alternatives to the proposed project”); 40 C.F.R. § 1502.14. Consideration of reasonable alternatives is necessary to ensure that the agency has before it and takes into account all possible approaches to, and potential environmental impacts of, a particular project. NEPA’s alternatives requirement, therefore, ensures that the “most intelligent, optimally beneficial decision will ultimately be made.” Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971). Over 90 percent of the Farmington planning area is leased for oil and gas. Thus, not only is BLM’s consideration of a ‘no further leasing’ alternative reasonable, but arguably consideration of such an alternative is required pursuant to BLM’s multiple use mandate under FLPMA.10 “Multiple use requires management of the public lands and 10 BLM is duty bound to develop and revise land use plans according to its congressional mandate at 43 U.S.C. § 1701(a)(8), so as to “observe the principles of multiple use.” 43 U.S.C. § 1712(c)(1). “Multiple use” means “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 51 of 60 42 their numerous natural resources so that they can be used for economic, recreational, and scientific purposes without the infliction of permanent damage.” Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1290 (10th Cir. 1999) (citing 43 U.S.C. § 1702 (c)). As the Tenth Circuit recognized, “[i]f all the competing demands reflected in FLPMA were focused on one particular piece of public land, in many instances only one set of demands could be satisfied. A parcel of land cannot both be preserved in its natural character and mined.” Rocky Mtn. Oil & Gas Ass'n v. Watt, 696 F.2d 734, 738 n. 4 (10th Cir.1982) (quoting Utah v. Andrus, 486 F.Supp. 995, 1003 (D.Utah 1979)); see also 43 U.S.C. § 1701(a)(8) (stating, as a goal of FLPMA, the necessity to “preserve and protect certain public lands in their natural condition”); Pub. Lands Council, 167 F.3d at 1299 (citing § 1701(a)(8)). As further provided by the Tenth Circuit: BLM’s obligation to manage for multiple use does not mean that development must be allowed on [a particular piece of public lands]. Development is a possible use, which BLM must weigh against other possible uses—including conservation to protect environmental values, which are best assessed through the NEPA process. Thus, an alternative that closes [public lands] to development does not necessarily violate the principle of multiple use, and the multiple use provision of FLPMA is not a sufficient reason to exclude more protective alternatives from consideration. New Mexico, 565 F.3d at 710. Accordingly, BLM must consider closing lands to future leasing to protect other uses, which is BLM’s legal obligation under FLPMA. Notably, in deferring the 12 non-Forest Service parcels, BLM recognized the importance of completing the Mancos RMPA planning process to avoid prejudice and to timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.” 43 U.S.C. § 1702(c). Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 52 of 60 43 prevent limiting its choice of alternatives. BLM010228 (deferring parcels “until after the [Mancos RMPA] alternatives have been developed.”). Yet, in defiance of this same logic, BLM chose to issue the challenged leases, unlawfully limiting its choice of alternatives and allowing development in a previously undeveloped area, in violation of NEPA. 40 C.F.R. § 1506.1. IV. THE FOREST SERVICE FAILED TO TAKE A HARD LOOK AT OIL AND GAS LEASING AND FAILED TO CONSIDER SIGNIFICANT NEW INFORMATION AND CIRCUMSTANCES The Forest Service failed to take a hard look at the impacts of oil and gas leasing in a previously undeveloped area of the SFNF, and failed to consider significant new information and circumstances, in violation of NEPA and Forest Service policies and procedures. 36 C.F.R. §§ 228.102(a), 228.102(e)(1); Sierra Club, 848 F.2d at 1093 (10th Cir. 1988) (recognizing an agency must perform hard look NEPA analysis “before committing themselves irretrievably to a given course of action so that the action can be shaped to account for environmental values.”). The Forest Service and BLM share responsibility for the issuance of leases on forest lands.11 30 U.S.C. § 226(h). The first three stages of review, of particular relevance here, are: leasing analysis, leasing decision, and verification. First, the Forest Service conducts NEPA analysis to identify the lands that will be made administratively available for leasing by the BLM. 36 C.F.R. § 228.102(a)-(d). 11 The BLM-Forest Service leasing process consists of eight steps: (1) leasing analysis; (2) leasing decision; (3) verification; (4) BLM assessment; (5) sale by the BLM; (6) issuance of lease; (7) application for permit to drill; and (8) application for permit to drill to develop a field. 30 U.S.C. § 226(h). Coordination and responsibilities between the agencies is memorialized in an MOU. BLM011808. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 53 of 60 44 Here, the Forest Service relied on a combination of the 2008 Forest Plan Amendment and 2012 Forest Plan Supplement12 (together “Forest Plan documents”) to identify lands available for leasing, which included the northwest portion of the SFNF.13 FS013743; FS016003. Second, the Forest Service identifies specific parcels for leasing, performs specific environmental review on those parcels, and determines whether to authorize the BLM to lease that those parcels. 36 C.F.R. § 228.102(e). Here, the Forest Service, in a letter of concurrence to BLM, identified specific parcels for leasing and determined that specific environmental review of those parcels was conducted in the Forest Plan documents. FS016261. Third, the Forest Service verifies that the leasing was adequately addressed in a NEPA document and is consistent with management plans. 36 C.F.R. § 228.102(e)(1). If the proposed action has not been adequately addressed, or if there is significant new information or circumstances requiring further environmental analysis,14 such analysis shall be done before a leasing decision for specific lands will be made.” Id. (emphasis added). Here, the Forest Service determined that the Forest Plan documents were 12 Notably, the 2012 Supplement was intended to add additional information and analysis to address deficiencies in the 2008 Amendment, specifically dealing with air quality, threatened, endangered and sensitive species, and the Mexican Spotted Owl. FS016009. 13 Cf. BLM001615 (map of plan area). The Forest Service determined that the 1987 Santa Fe National Forest Plan, FS001030, provided no site-specific direction regarding management of oil and gas. FS016009. 14 NEPA regulations provide that every agency “shall” prepare supplements to environmental documents if 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)(ii). Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 54 of 60 45 “adequate for offering lands for competitive leasing.” FS016261. The Forest Service recognized the need for site-specific evaluation of oil and gas leasing availability, and explicitly concluded that both the 1987 Forest Plan and BLM’s 2003 RMP failed to provide the level of analysis necessary to guide the Forest Service’s decisionmaking. FS016113; FS016009 (stating BLM’s 2003 RMP “was not adequate to meet Forest Service [NEPA] requirements”. . . [and the 1987] “Forest Plan and its analysis final EIS did not address the potential environmental effects of future oil-gas leasing and development on the Forest sufficiently enough to make new lease issuance decisions.”).15 Accordingly, the Forest Service drafted the 2008 Forest Plan Amendment (which was supplemented in 2012) to address these fundamental NEPA deficiencies. The 2012 Oil-Gas ROD amended the Forest Plan to incorporate specific stipulations, including no surface occupancy (“NSO”), controlled surface use (“CSU”), and timing limitations (“TL”), which were added to specific lands and resources within the study area. FS016115. All SFNF lands included in the study area remain open to development but are now subject to the terms of the stipulations, where applied. FS016116; FS016127. As detailed below, the Forest Service letter of concurrence to BLM erroneously relied on the Forest Plan documents when authorizing the leasing of specific SFNF parcels. In particular, these documents failed to take a hard look at the site-specific impacts of oil and gas leasing. New Mexico, 565 F.3d at 718-19 (holding that “NEPA require[s] an analysis of the site-specific impacts of [a lease sale] prior to its issuance,”). 15 The 1987 Forest Plan included broad direction regarding leasing categories of standard and limited surface use, but included no direction regarding the location or purpose of stipulations. FS016009. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 55 of 60 46 Moreover, the Forest Service also failed to consider significant new information and circumstances before the leasing decision was made and the SFNF parcels were issued. 36 C.F.R. § 228.102(e)(1). Although the Forest Service failed to take a hard look at site-specific impacts across resources, two categories—climate change and water resources—exemplify the agency’s deficiencies. The 2008 Forest Plan Amendment fails to discuss GHG emissions and their impacts altogether. See FS013743. In the 2012 Forest Plan Supplement, the agency’s discussion is limited to general statements that climate change exists, but no analysis of how it might impact the forest’s natural resources. FS016033 (“The assessment of greenhouse gas emissions and climate change is in its formative phase; therefore, it is not yet possible to know with confidence the net impact to climate.”). The Forest Service admits that “[o]il and gas development activities on the SFNF are predicted to produce greenhouse gas emissions,” and even estimates annual emissions of 3,350 MTCO2e based on 20 total wells,16 but does not go beyond comparing these emissions to those of Rio Arriba County and concluding that emissions are “very likely an overestimate.” FS016034. Critically, nowhere does the Forest Service ever describe the types of direct, indirect, and cumulative impacts possible from these GHG emissions, or anticipated impacts to the forest due to climate change. Courts have rejected NEPA documents that do not include these analyses. See, e.g., Center for Biological Diversity, 538 F.3d at 1217 (stating “the fact that climate change is largely a global phenomenon 16 The Forest Service assumption of 20 total wells in the SFNF is far below the 118 wells predicted by BLM that will be developed from the leases. BLM010270. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 56 of 60 47 that includes actions that are outside of [the agency’s] control ... does not release the agency from the duty of assessing the effects of its actions on global warming within the context of other actions that also affect global warming.”). Neither do the 2008 Forest Plan Amendment or the 2012 Forest Plan Supplement mention hydraulic fracturing and the relationship of this drilling technology to water resource impacts, as detailed above. For example, there is no discussion of the vast quantities of water used in the drilling and fracturing of oil and gas wells, or the impacts that such water use would have on a draught-stricken forest. Indeed, the only mention of water use suggests the Forest Service is basing its decision on flawed assumptions; i.e., “[d]rilling operations consume most of the water used during well development.” FS013798. As detailed above, the record contradicts this assumption. Hydraulically fractured wells—which BLM anticipates will be the type of wells developed here, BLM010276, require “large volumes of water” which far exceed water used for drilling. BLM010293. The Forest Service’s incorrect assumptions, and a total absence of quantified information and data for drilling techniques and the massive quantities of water they consume, fail to provide the site-specific hard look at impacts to the forest required by NEPA and Forest Service regulations. 36 C.F.R. § 228.102(e). Moreover, many of the assumptions the Forest Service relied upon for the Forest Plan documents are wrongfully premised upon BLM’s 2003 RMP and the 2001 RFDS.17 17 The Forest Service references its own 2004 RFDS throughout the Forest Plan documents, which focuses specifically on development of SFNF. The Forest Service states that projected development in the national forest was so “marginal to the basin” that it wasn’t included in BLM’s RFDS. Nevertheless, the Forest Service “uses the same Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 57 of 60 48 Based on these assumptions and its own analysis in a supplemental 2004 RFDS, FS009796, the Forest Service did “not project any [oil and gas] development” in the SFNF. FS013790. In other words, the conditions that formed the basis for the Forest Service’s NEPA analysis are out of date, and fail to account for new information and circumstances—factors that are intended to be determinative in the agency’s adequacy decision, but, here, were not even considered. 36 C.F.R. § 228.102(e)(1). This failure is acutely problematic given enhanced drilling technology and shifting patterns of development in the San Juan Basin—particularly in the targeted Mancos Shale formation. BLM010276. As stated by the Forest Service: Based on the most recent and site-specific projections of new wells, few new wells would be developed over the next 20 years. Historically, most leases are never drilled on the Santa Fe National Forest… Although there are currently seven expressions of interest to lease new oil or gas parcels, the [RFD] does not project any development in these areas because the RFDS is based on proven geology and known production, regardless of lease status. The RFDS assumes that industry expenditures are more likely to be spent in areas that are known to be productive. FS013790; see also FS016044 (“All reasonably foreseeable development is projected to occur on existing leases under standard terms and conditions.”). As detailed above, BLM is currently preparing the Mancos RMPA precisely because earlier assumptions about the timing, pace, location, and methods of development in the San Juan Basin are no longer accurate, and fail to sufficiently guide agency decisionmaking. 79 Fed. Reg. 10,548. This is precisely the type of new information the Forest Service is required to consider, but failed to do so here. 36 C.F.R. § 228.102(e)(1). assumptions and basis as the [2001 BLM] RFDS” to form its own conclusions about foreseeable development in the SFNF. FS009796. Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 58 of 60 49 CONCLUSION For the foregoing reasons, Citizen Groups respectfully request that this Court declare that Federal Defendants’ leasing decisions violate NEPA and its implementing regulations, vacate and remand Federal Defendants’ leasing decisions, and suspend and enjoin Federal Defendants from any further leasing authorizations pending Federal Defendants’ full compliance with NEPA. Respectfully submitted this 18th day of November 2016, /s/ Kyle J. Tisdel Kyle J. Tisdel tisdel@westernlaw.org WESTERN ENVIRONMENTAL LAW CENTER 208 Paseo del Pueblo Sur, Suite 602 Taos, New Mexico 87571 (p) 575.613.8050 Counsel for Plaintiffs /s/ Samantha Ruscavage-Barz Samantha Ruscavage-Barz sruscavagebarz@wildearthguardians.org WILDEARTH GUARDIANS 516 Alto Street Santa Fe, NM 87501 (p) 505.401.4180 Counsel for Plaintiff WildEarth Guardians Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 59 of 60 50 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 13,631 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Dated this, 18th day of November, 2016. /s/ Kyle Tisdel Kyle J. Tisdel Western Environmental Law Center Counsel for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 18, 2016, I electronically filed the foregoing PLAINTIFFS’ OPENING MERITS BRIEF with the Clerk of the Court via the CM/ECF system, which will send notification of such filing to other participants in this case. /s/ Kyle Tisdel Western Environmental Law Center Counsel for Plaintiffs Case 1:16-cv-00376-MCA-WPL Document 22 Filed 11/18/16 Page 60 of 60 IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO SAN JUAN CITIZENS ALLIANCE, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Federal Defendants. ________________________________________ ) ) Case No. 1:16-cv-00376-MCA-WPL ) ) DECLARATION OF BARBARA ) TURNER IN SUPPORT OF ) PLAINTIFFS’ OPENING BRIEF ) ) ) ) 1. My name is Barbara Turner, I am a citizen of the United States and a resident and landowner in El Rito, New Mexico for the past 9½ years. I am a standing member of Amigos Bravos since 2011 and I have been on the board of directors for Rio Arriba Concerned Citizens (RACC), a registered non-profit, educational organization dedicated to the protection of water, health, air and the environment in the Rio Chama Watershed area, for the past 3 years. 2. To help achieve the mission of RACC, I authored a chapbook entitled “Thinking Like The Rio Chama Watershed”, which provides a general scientific as well as cultural history for watershed residents. I am a retired bookstore owner and most recently, a retired acquisition’s librarian for the El Rito Library, with the primary focus of building the New Mexico and Southwest collections. 3. I am also an avid hiker and birder and frequently visit the Santa Fe National Forest, looking for inspiration for my retirement activity of drawing local flora with pen and ink. I am particularly interested in boundary or transition areas and will often seek out areas in the landscape where the flora changes as I look for new plants to draw. I am also a vegetable Case 1:16-cv-00376-MCA-WPL Document 22-1 Filed 11/18/16 Page 1 of 5 DECLARATION OF BARBARA TURNER 2 of 5 gardener and, as a result, a weather watcher. 4. Given my passion and focus on the Rio Chama Watershed area in my research, writing, artwork and outdoor activities in general, I am consistently aware of the environmental condition of my surroundings and realize daily that I am living here in order to access and enjoy the clean air and water, the plant life, and the rich cultural and natural history of this intact watershed. I feel strongly that oil and gas access to the Santa Fe National Forest areas where the BLM has awarded oil and gas exploration leases (and will likely issue drilling permits) gives me some concrete concerns regarding my health and the health of the watershed. 5. I have visited some of the parcels named in the BLM Environmental Analysis and FONSI, particularly those near the Gallina River and San Pedro Wilderness area. My most recent spring fieldtrip, while I was doing active research for the educational chapbook, “ Thinking Like the Rio Chama Watershed”, was west to the town of Gallina and the Continental Divide, which borders the western side of the Rio Chama Watershed. Because I am usually going where the plants are, I observed evidence of possible springs and water flow staining on some of the rock formations in the Gallina Canyon and watershed area. These intermittent spring locations seem to indicate the possibility of groundwater that may in fact flow to surface waters and present a threat of surface water contamination if oil and gas drilling is permitted anywhere in the vicinity. 6. BLM environmental analysis seems to offers no evidence of any research into the actual hydrology of this area, let alone any evidence of consultation with the State Engineer’s office and this was puzzling to me. After studying BLM documents and consulting people interested in the geology of this area, I came to the conclusion that it is very possible that BLM analysis had failed to take into account the difference between geologic structures in the middle Case 1:16-cv-00376-MCA-WPL Document 22-1 Filed 11/18/16 Page 2 of 5 DECLARATION OF BARBARA TURNER 3 of 5 of the San Juan Basin verses the anomalies (that BLM has failed to identify) near the Santa Fe National Forest parcels along the Nacimiento Uplift area. Putting two and two together, this would mean that there was an increased potential for water contamination of the Rio Chama Watershed via oil and gas development of these parcels near the Continental Divide, as it appears that there is some uncertainty about where water is draining. Where would water resulting from hydro-fracking injections be draining? 7. It makes sense to me that there is potential communication between ground and surface waters that might contain fracking fluids from well sites. This could significantly contaminate surface waters flowing into Gallina, and eventually, Rio Chama watersheds. Without a detailed hydrologic study of this area, I cannot know, without a doubt, that the Rio Chama Watershed would be unaffected by groundwater pollution as a result of fracking activities on these parcels. 8. I have rafted the Rio Chama, camping along the way, doing research on the wildlife accessing the water, as well as swimming in the water and the idea that the integrity of this river would be compromised is extremely disturbing. Management Plan (“1987 Forest Plan”). 9. I also swim about once a week in Abiquiu Reservoir during the summer months. After reading recent documented reports about increased seismic activity around oil and gas injection wells in the state of Oklahoma, it does make me think twice about how I would feel spending regular time in this reservoir knowing oil and gas operations were as close as the watershed’s western boundary. 10. It makes sense that I would want to know, in detail, the impact of an action, like Case 1:16-cv-00376-MCA-WPL Document 22-1 Filed 11/18/16 Page 3 of 5 DECLARATION OF BARBARA TURNER 4 of 5 oil and gas development that would affect our relatively pristine watershed before that action is taken. As a local watershed resident, I consider myself one of the “gatekeepers” of the precious water resource of the Rio Chama Watershed as it flows for use to the southern part of the state, and I believe that I have a profound obligation to be skeptical of anything that would limit or damage it. For someone who has dedicated years to the study and protection of my watershed, I have a vested interest in keeping it clean and intact. 11. I also have concerns about methane and other emissions from the development of these parcels bordering our watershed. Five years ago I was diagnosed with asthma with bronchospasm issues by Dr. Tamara Singleton here in El Rito and was prescribed an inhaler. Good air quality is essential to my health and since the prevailing winds are westerly for much of the year here, any air quality issues in the San Juan Basin and Santa Fe National Forest parcels 001, 005,006, 008, 009, 010, 011, 012, 013, and 014 will directly affect me. The San Juan Basin’s oil and gas industry has recently been directly linked to the largest methane cloud ever recorded. Bringing oil and gas development to our watershed borders will only exacerbate this methane accumulation and potentially have real impacts on my health. Increased traffic and attendant pollution associated with well pad development and maintenance is also an issue for people with asthma. 12. Lastly, I have a concern about emissions from these oil and gas parcels in the Santa Fe National Forest contributing to a general global warming scenario for our area. I am worried about the scientifically proven effects of global warming like increase drought, and extreme weather in the southwest, on my ability to grow my own food, which is one of the reasons I live here and something I depend on to feed my family. Case 1:16-cv-00376-MCA-WPL Document 22-1 Filed 11/18/16 Page 4 of 5 Case 1:16-cv-00376-MCA-WPL Document 22-1 Filed 11/18/16 Page 5 of 5 IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO SAN JUAN CITIZENS ALLIANCE, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Federal Defendants. ________________________________________ ) ) Case No. 1:16-cv-00376-MCA-WPL ) ) DECLARATION OF CINDA GRAHAM ) IN SUPPORT OF PLAINTIFFS’ ) OPENING BRIEF ) ) ) ) 1. My name is Cinda Graham. I am 75 years old and have been a resident of Abiquiu, NM since 2012. I have been a Sierra Club Member since 1997. I am a Board Member of Rio Arriba Concerned Citizens. RACC is a grassroots organization with a mission to protect the public health, land, air, and water of the Rio Chama Watershed, Rio Arriba County, and the State of New Mexico, and to promote sustainable development through education, collaborative planning, and community involvement. 2. I am a professional artist, was a teacher in NYC, Chairman of the Board of Rochester Contemporary Art Center in Rochester, NY, and a member of an artist’s co-op in Rochester, NY. 3. My husband & I first came to Santa Fe in the early 1970s for three summers, as my husband was a participant of the Santa Fe Chamber Music Festival in its inception. I was also a St. John’s College Graduate from Annapolis, Md., consequently had many connections with the recently formed St. Johns in Santa Fe. We loved the area and always wanted to return. In 2012 we moved our residence from Rochester, NY to Abiquiu, NM. 4. We moved to Northern New Mexico for the undisturbed, undeveloped, spaces and tranquil beauty of the area. The vistas, flora, fauna besides being the deepest of pleasures and Case 1:16-cv-00376-MCA-WPL Document 22-2 Filed 11/18/16 Page 1 of 4 DECLARATION OF CINDA GRAHAM 2 of 4 interests to myself, is a constant source of inspiration for my work. 5. Throughout the year we have guests from all over the USA, whom we take exploring the forest, watching for wildlife, identifying plants & trees, thrilling to the clean air and clear star- filled nights, discovering prehistoric sites, encountering historical cultural sites, and speculation concerning geological formations. 6. My enjoyment of the aesthetic, recreational and professionally inspirational qualities of the nearby Santa Fe national Forest Parcels 001, 004, 005, 006, 007, 008, 009, 010, 011, 012, 013, 014 and 015 would be seriously diminished by oil and gas development and BLM permitting for constructing roads, pads, drilling equipment, storage tanks etc. What would change would be diminishment of air quality, recreational access and aesthetics, wildlife habitat and population, clear night skies and visual impairment of access to pristine San Pedrro Wilderness. 7. Because access to these unspoiled areas is less than 45 minutes away, I tend to visit the SFNF area proposed for development on a regular basis and intend to continue to do so. 8. My explorations, camera in hand, of the Northern New Mexico area has frequently led me into areas of the Santa Fe National Forest. About 2 years ago we were driving from Coyote to Cuba, first on Rt. 172, then south on #103 over to #126 west to Cuba. We passed a beautiful waterfall in the forest, then Kettle Rocks, all around the SW edge of the San Pedro Wilderness. 9. On another trip recently we drove around the NW side of the San Pedro Wilderness passed Capeline Canyon and Gallina Canyon Trailheads, which relate to Parcel 6, Section 2 & 34 and also Parcel 13, Section 25, off Route #76. 10. I so treasure the expanses of undeveloped woods, mountains, arroyos, ancient geological land formations that I do my best to avoid areas of industrial development, which promise truck traffic, pump noise, power lines, pipe lines, etc. in other words, air, sound road, and sight Case 1:16-cv-00376-MCA-WPL Document 22-2 Filed 11/18/16 Page 2 of 4 DECLARATION OF CINDA GRAHAM 3 of 4 pollutions of pristine areas. One of my greatest thrills in moving to Abiquiu was the star-filled night sky. Gas flares, heavy traffic, storage-area lights, for gas & oil drilling will certainly destroy the visibility of stars. Oil & Gas development spells doom for the relatively untouched beauty of Northern New Mexico east of the San Juan basin (which already has a nightmare quality to it). 11. I feel it is of crucial importance to me, my investment in living in the area and my work about the area that as much as possible areas of the Santa Fe National Forest so close to the San Pedro Wilderness area be kept free of Gas & Oil Development. The natural landscape is an irreplaceable, world-class treasure. 12. I would be harmed by the loss of these areas and their rich recreational and aesthetic resources if the BLM is not held to the Department of Interior standard for compatible multiple uses of public lands. Oil and Gas development is not appropriate for this area and the BLM Environmental Analysis had many holes and unaddressed uncertainties and unfounded assumptions for this unique area on the uplift edge of the San Juan Basin. 13. A couple of years ago RACC members visited the Hydrogeologist in the State Engineer’s Office in Santa Fe. He confirmed that there were significant differences and uncertainties between the main San Juan Basin and the area on the uplift edge of the San Juan Basin and East of the Continental Divide. Therefore I urge a decision that would promote further investigation and prevent the possible deleterious degradation of my enjoyment of the nearby wonders of the area. I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge. 28 U.S.C. § 1746. Case 1:16-cv-00376-MCA-WPL Document 22-2 Filed 11/18/16 Page 3 of 4 Case 1:16-cv-00376-MCA-WPL Document 22-2 Filed 11/18/16 Page 4 of 4 IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO SAN JUAN CITIZENS ALLIANCE, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Federal Defendants. ________________________________________ ) ) Case No. 1:16-cv-00376-MCA-WPL ) ) DECLARATION OF JON KLINGEL ) IN SUPPORT OF PLAINTIFFS’ ) OPENING BRIEF ) ) ) ) 1. My name is Jon Klingel. I am 72 years old and a United States citizen. I have been a resident of New Mexico for 40 years and resided in Santa Fe for 26 years. I am a member of the Board of Directors of Amigos Bravos. 2. I am a wildlife biologist retired from the New Mexico Department of Game and Fish and periodically conduct pipeline inspections in the Prudhoe Bay oil fields of northern Alaska for a pipeline construction company. 3. I have spent and continue to spend considerable time on the Santa Fe National Forest (SFNF). My activities have taken me all over the SFNF from the northern boundary (adjacent to the Carson National Forest and up to the Jicarilla Apache Reservation and the Rio Chama) to the southern boundary (in the Jemez Mountains, the Caja del Rio, Glorieta Mesa and the Anton Chico unit), and from the west boundary (west side of Jemez Mountains) to the east boundary (by Chacon, Gascon and Las Vegas, NM). 4. My activities in the SFNF include: camping; hiking; back-country skiing; canoeing, kayaking, and rafting; wildlife research; wildlife watching; enjoying the night sky; Case 1:16-cv-00376-MCA-WPL Document 22-3 Filed 11/18/16 Page 1 of 4 DECLARATION OF JON KLINGEL 2 of 4 exploring prehistoric and historic cultural sites; and volunteer trail work. I have worked with SFNF staff in assessing wildlife habitat and in management planning. 5. The values I seek while recreating on the SFNF include solitude, quiet, good wildlife habitat with abundant and interesting wildlife, unfettered scenery, and interesting historical cultural sites. While camping, hiking and floating rivers I regularly use the water from springs, creeks and rivers for drinking, cooking and bathing. I try to avoid areas with excessive roads and industrial activity such as pump and compressor stations, well pads, pipelines and power lines. 6. Industrial development destroys the solitude, quiet, scenic views, and dark night skies that I look for. Oil and gas development in particular is destructive to my activities because of the excessive roads, traffic, noise, pipelines, flare stacks, and pump jacks. In some oil fields the air is fouled with natural gas odor and hydrogen sulfide, which develops in some oil fields, and is extremely dangerous. Roads, traffic, noise and moving equipment have a significant adverse impact on wildlife which degrades my quality of life. Oil and gas wells need a lot of regular service which translates to a lot of traffic and disturbance to people and wildlife. Oil and gas development can impact surface and ground water quality, which is important to me, and the pollution can spread far beyond the immediate oil field. 7. I am also aware that release of natural gas into the environment is a significant contributor causing global warming, as is the carbon dioxide from burning of gas and oil. These are problems that not only impact me but will seriously degrade the quality of life for my daughter, and everyone else in the United States for many decades to come. Areas around oil Case 1:16-cv-00376-MCA-WPL Document 22-3 Filed 11/18/16 Page 2 of 4 DECLARATION OF JON KLINGEL 3 of 4 and gas facilities and pipelines can be dangerous if there is a leak. They are not a safe place to camp or cook. Oil and gas development destroys the value of the land for my enjoyment. 8. Lease Parcels 9, 10, 11, 12, and 13 appear to be along the west edge of the San Pedro Parks Wilderness (SPPW) area near its NW corner. These parcels also appear to be in an area designated "Non-motorized Use Only Zone" on the SFNF SPPW map. I hike and camp in the SPPW. I spent a summer doing wildlife research in the SPPW. Currently I and other members of the National Smokejumpers Association (NSA) are considering doing volunteer trail work in the SPPW. Oil and gas development with all its attendant disturbance this close to the Wilderness will negatively impact my ability to enjoy the area. At the very least the west side of SPPW will not be worth visiting anymore. 9. The disturbance will also negatively impact wildlife in the area which is one of my main reasons for going there. The NSA will likely eliminate at least the western SPPW from its offer of volunteer work. Oil and gas development does not mix with camp fires and stoves. Consider the family that was killed in southern New Mexico when they lit their camp stove one morning near a leaking gas pipeline. This type of development eliminates entire areas for safe camping. The area designated as "Non-motorized Use Only Zone" does not have roads at this time and is likely suitable for inclusion into the National Wilderness System as part of the adjacent SPPW. Possibly this is why it is proposed for oil and gas development, to destroy the wilderness value before it can be included in the SPPW. 10. Lease Parcels 1, 2, 3, 4, 5, 6, and 14 are located north of the Jemez Mountains. The north side of the Jemez Mountains contain some fascinating prehistoric ruins which I visit. One of my family members recently visited a ruin to the north of the mountains, which I also Case 1:16-cv-00376-MCA-WPL Document 22-3 Filed 11/18/16 Page 3 of 4 Case 1:16-cv-00376-MCA-WPL Document 22-3 Filed 11/18/16 Page 4 of 4 IN THE T]I\I-ITED STATE DISTRICT COT]RT FOR THE DISTRICT OT'IYEW MEXICO SAN ruAN CITIZENS ALLIANCE, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT,et al., Case No. 1 : 16-cv-00376-MCA-WPL DECLARATION OF MIKE EISENFELD IN SUPPORT OF PLAINTIFFS' OPENING BRIEF ) ) ) ) ) ) ) ) ) L Federal Defendants- 1- My name is Mike Eisenfeld. I am more than 18 years of age and a cittznn of the United States. I have lived in Farminglon, New Mexico since 1996. I work for San Juan Citizens Alliance (SJCA) as the Energy and Climate Program Manager and I am a member of SJCA, WildEarth Guardians, Sierra Club andAmigos Bravos. 2. SJCA is a nonprofit organization dedicated to social, economic, and environmental justice in the San Juan Basin. SJCA has 800 members, including approximately 50 members inNew Mexico. SJCA was established in 1986. 3. I live and work in the San Juan Basin, an area heavily relied upon for, and impacted by, fossil fuel extaction (including coal, oil and gas, and uranium). This area also boasts world-class recreation and tourism opportunities due to an abundance of scenic rivers, canyons, extraordinary topography and vistas, as well as national parks, national historic parks, national monuments, natioral forests, World Heritage Sites and otherpublic/tribal lands. 4. In my position as Energy and Climate Program Manager for SJCA,I work on issues related to energy, qrater quality, air quality, public lands, and public health. I have Case 1:16-cv-00376-MCA-WPL Document 22-4 Filed 11/18/16 Page 1 of 5 participated in projects overseen by the U.S. Department of the Interior, Bureau of Land Management and United States Department of Agriculture, United States Forest Service, since 2AA7. These projects include participation in Resource Management Plan (RMP) development as well as leasing and drilling approvals for oil and gas. 5. I am aware that"Citizen Groups" (including SJCA) have brought forth civil action for declaratory and injunctive relief against Sally Jewell, the United States Bureau Of Land Management ('BLM'), the United States Forest Service ('Forest Service'), and Tom Vilsack (collectively "Federal Defendants"), fot their authorizationand issuance of l3 oil and gas leases covering 20,146.67 surface acres administered by the Forest Service in the Santa Fe National Forest, and a mineral estate administered by BLM's Farmington Field Office (*FFO"). The issuance of these leases followed an Environmental Assessment (DOI-BLM-NM-F10-2014- 0154-EA) prepared by BLM FFO under ttre National Environmental Policy Act ("NEPA"),42 U.S. C. $$ 4321 et seq., and its implementing regulations. 6. I have reviewed the decision documents prepared by the BLM to issue oil and gas leases in the Santa Fe National Forest (October 2104 Competitive Oil and Gas Lease Sale) and understand that the BLM relies on the 2003 Resource Management Plan, a 2002Biological Assessment and a Final Supplement to the Final Environmental lmpact Statement for Oil-Gas Leasing, Santa Fe National Foresf Rio Arriba and Sandoval Counties, New Mexico ("2A12 Supplernent"). The Forest Service issued the2012 Supplement to firrther complement a 2008 Santa Fe National Forest Oil-Gas Leasing Forest Plan Amendment (*2008 Amendmenf'), both of which amend and supplement the 1987 Santa Fe National Forest Land and Resource Management Plan (*1987 Forest Plan"). DECLARATION OF MIKE EISENtr'ELD 2ofS Case 1:16-cv-00376-MCA-WPL Document 22-4 Filed 11/18/16 Page 2 of 5 7. I visited the proposed 13 lease parcels on the Santa Fe National Forest in August of 2015 and have passed through these parcels on a visit to San Pedro Parks Wilderness in September of 2015. I walked through areas in the SFNF in the proposed lease parcels where the landscape is characterized by undeveloped steep forested slopes and Rio Grande watershed features. I often travel along the US Highway 550 conidor through Cuba" New Mexico and have been to Regina and Coyote, New Mexico 5 times in 2015, which are areas adjacent to the 13 leased parcels. I plan on going back to visit the SFNF oil and gas lease parcels in March of 2017. 8. In proceeding with the oil and gas lease sale of SFNF parcels, I believe that BLM and USFS have significantly undervalued the impacts of oil and gas development for the SFNF- I believe BLM's ongoing approval of Mancos Shale oil and gas wells in proximity to the SFNF parcels and attempt to now approve the SFNF parcels represents uninformed decision-making that threatens to irreparably harm me. BLM's leasing ofthe l3 SFNF parcels compromises my experience of visiting the greater San Pedro Wildemess Parks by adversely impacting the air quality, visual landscape, night sky, solitude and quiet, as well as public health and safety. The impacts at the 13 lease parcels in the SFNF would have a significant impact on the Rio Grande watershed with un-quantified impacts currently unanalyzed by BLM and USFS conceming hydraulic fracturing, horizontal oil and gas drilling and indusfiializingthe landscape. g. I am aware that BLM announced lri-2014 that a RMP Amendment (RMPAy Environmental lmpact Statement (EIS) is being prepared to evaluate the impacts from Mancos Shale/Gallup Formation oil and gas development, which is the formation that would be most readily pursued in the SFNF parcels. I understand that this RMPA/EIS is needed before Mancos DECLARATION OF MIKE EISENT'ELI) 3 of5 Case 1:16-cv-00376-MCA-WPL Document 22-4 Filed 11/18/16 Page 3 of 5 Shale/Gallup Formation oil and gas development can occur, and that the BLM's current 2003 RMP never contemplated or analyzedoil development in the SFNF area as required by NEPA, I also note that BLM has the responsibility to manage resources under multiple use/sustained yield, as identified in the Federal Land Policy and Management Act. As of November 2016 BLM's RMPA/EIS is incomplete and is not expected before the fall of 2017. 10. By proceeding with Mancos Shale development in the absence of a required RMPA/EIS, BLM also threatens the integrity of the expansive Chaco Culture World Heritage Site and runs counter to Congressional directives in the Chaco Outliers Protection Act of 1995. BLM has allowed APD proponents to flare natural gas in the greater Chaco area when drilling for oil. The flaring threatens irreparable harm to air quality and, correspondingly my health, and also compromises the night sky io the Chaco Culture NHP area, which was designated in 2013 as a Dark Sky Park by the International Dark-Sky Association. It is clear that BLM leasing interests in SFNF would expand oil and gas development towards Los Alamos and would jeopardize the rural communities in the Cuba/Regirur area 11. By proceeding with a limited EA, BLM and USFS limited public involvement and consultation (as required by NEPA and the National Historic Preservation Act). I believe that BLM and USFS should have prepared a more extensive EIS based on the project being controversial, un-analyzed impacts to local communities, and the potential impacts to the Rio Grande Watershed. 12. SJCA's participation in evaluating NEPA EAs has resulted in legal cases that are in the public interest to raise the responsibility of govemment agencies to take a "hald loolC' at what is happening on the ground as a result of leasing public lands for oil and gas development. DECLARATION OF MIKE EISENFELI) 4 of5 Case 1:16-cv-00376-MCA-WPL Document 22-4 Filed 11/18/16 Page 4 of 5 I am harmed by the lack of government agency compliance in evaluating the direct, indilect, cumulative and connected impacts of operations approved by BLM-and USFS. I declare under the penalty of porjury that the foregoing is true and correct to the best of my knowledge.23 U.S.C. $ 1746. Dated this 14th day ofNovember 2016. I}ECLARATION OT MIKE EISENT'ELI) 'i 5 ofS Case 1:16-cv-00376-MCA-WPL Document 22-4 Filed 11/18/16 Page 5 of 5 IN THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO SAN JUAN CITIZENS ALLIANCE, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Federal Defendants. ________________________________________ ) ) Case No. 1:16-cv-00376-MCA-WPL ) ) DECLARATION OF TERESA C. ) SEAMSTER IN SUPPORT OF ) PLAINTIFFS’ OPENING BRIEF ) ) ) ) 1. My name is Teresa C. Seamster. I am over 18, married, and a citizen of the United States. I have lived in Santa Fe County, New Mexico, since 1990 and in the state of New Mexico since 1979. I am a former Director of the Media and Communications Department at San Juan College in Farmington, New Mexico, and a retired Montessori educator and administrator of Monte Vista Montessori School in Eldorado, New Mexico. I am currently a full-time volunteer serving as Chair of the Northern New Mexico Group of the Rio Grande Chapter of Sierra Club and have served on many community, city and county boards and committees over the past 20 years. 2. I live and work in Santa Fe, the seat of New Mexico state government and policymaking as well as the historical center of arts, cultural heritage, and archaeological research for the state. 3. As an elected group chair of Sierra Club, I am responsible for organizational activities, educational outreach, executive committee meetings and sub-committee reports, financial oversight, raising conservation funds and getting approval for conservation project Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 1 of 7 DECLARATION OF TERESA C. SEAMSTER 2 of 7 allocations. Our conservation funds are raised primarily through the sales of our hiking book; “Day Hikes in the Santa Fe Area,” now in its 8th edition and which closely maps and details some 150 hikes in and near Santa Fe National Forest. 4. Sierra Club’s mission is briefly, “Explore, enjoy and protect the Planet” and it is the oldest and largest environmental group in America, founded by renown conservationist John Muir in 1892, and widely credited with founding the national parks idea and service. 5. A large part of Sierra Club’s activities and education is dedicated to the study and preservation of wilderness and roadless areas, the proper resource management of public lands, including those under the authority of the US Forest Service, Bureau of Land Management, and National Parks Service, and the expansion of outdoor recreation, outings and enjoyment of the wild for all Americans and visitors to our country. 6. I regularly visit Santa Fe National Forest (SFNF) as both a wildlife monitor in Santa Fe County and as an avid hiker and birder with my family. I currently help monitor wildlife populations of Gunnison’s Prairie Dogs and Burrowing Owls on the Caja del Rio Mesa and have monitored hummingbird and other avian species throughout Santa Fe County, including SFNF, with biologists from Sangre de Cristo Chapter of Audubon Society. (See Santa Fe New Mexican, “Flight of the Hummingbirds”, Saturday, August 14, 2010, Staci Matlock) 7. SFNF largely encircles the northern crest of the city of Santa Fe. The Santa Fe Watershed and the bulk of recreational hiking, mountain biking areas, cross country ski trails and Santa Fe Ski Basin are all contained in the forest. Outdoor recreational pursuits and more passive enjoyment of the outdoors through sightseeing, adventure touring, camping, wildlife watching Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 2 of 7 DECLARATION OF TERESA C. SEAMSTER 3 of 7 and photography, are made possible by the 1.5 million acres of largely undeveloped national forest next to Santa Fe. 8. My direct involvement with the impacts of oil drilling on human health and wildlife abundance dates from December, 2014, with the announcement of oil leasing in the Navajo checkerboard area around Counselor, Nageezi, Ojo Encino, Torreon-Star Lake and Lybrook communities. As I previously had assisted in the research of water and public safety impacts of a proposed CO2 pipeline in a Health Impact Assessment for Torrance County, I suggested a similar health impact study be done in these communities. 9. In the past year and a half, I have worked with local organizations and individual community members, including: Counselor Chapter, Ojo Encino Chapter, Torreon-Star Lake Chapter, N.M. Health Equity Partners, Diné C.A.R.E., Taos Water Sentinels, and Sierra Club, in receiving health information, air and water sample analyses and cultural impact testimony and writing three (3) Health Impact Reports for the Tri-Chapter communities. (Attached) 10. Based on the data and testimony regarding health and public safety I have reported on to residents in the Tri-Chapter area, I believe the proposed lease sales to gas and oil companies on the western portion of SFNF will have the following potentially highly negative impacts. • 20,000 acres of historically undeveloped SFNF will be placed under oil and gas management and development. • Development of a spider web of access roads to proposed well sites and to access additional future well sites that are wide, bulldozed, unpacked dirt roads will cause continuous erosion, dust emissions, extreme spread of invasive weeds, and Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 3 of 7 DECLARATION OF TERESA C. SEAMSTER 4 of 7 dangerous driving conditions for heavy industrial truck traffic and local residents and visitors that access the forest. • 20,000 acres that contains steep terrain leased for drilling and pipeline construction will have dangerous access conditions and a high probability of accidents, ruptures of pipeline and compressor equipment, exposure of underground pipeline and other infrastructure due to flood events, run-off and wash outs in arroyo and steep slope areas. • Open corridors of development will be bulldozed and have little chance of future mitigation or appropriate restoration given the steep terrain, lack of cover and lack of precipitation. • Impacts on wildlife in the area are likely to be severe as human disturbance, noise from 24 hour compressors, drilling, pumping and flaring, heavy traffic and night time lighting, all combine to drive deer, elk, pronghorn, birds and smaller mammals away from an area. • The western edge of SFNF is a locally rich area for both subsistence hunters and visiting hunters who have contributed significantly to the local economies of Cuba, Jemez and other towns in Santa Fe and Rio Arriba Counties. Almost complete loss of game animals has already been observed on Day Mesa next to Counselor, NM, northwest of the SFNF lease area, due to continuous oil and gas operations over the past 18 months, and similar disappearance of game on new leased lands will create significant economic losses to local and state business connected to hunting. Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 4 of 7 DECLARATION OF TERESA C. SEAMSTER 5 of 7 • Eastern Agency human cancer rates are the highest in the Navajo Nation1. A noted rising rate of cancer in the Tri-Chapter communities has been brought up at Chapter meetings, Navajo Nation Tribal Council meetings in the 2016 summer legislative session, and in meetings with BLM. • The highest cause (almost 19%) of Navajo mortality2 is due to “unintended injury” with “motor vehicle occupant.” Traffic fatalities are the leading cause of death, and accidents related to poor oil field road conditions, fast moving and continuous tanker traffic and lack of proper fencing of well pads for livestock are some of the leading concerns of residents. • Danger of explosion and destructive fire is an ever-present problem with oil field activities and lack of oversight, and is potentially far more destructive in a national forest. The WPX explosion and fire that destroyed 36 storage tanks and well site outside Nageezi-Counselor in July 2016 illustrates the ever-present risk of oil development near rural communities and in national forests. • There is a deep spiritual connection between Navajo (and all native people in New Mexico) and the landscape and ceremonial sites they visit every year as part of their beliefs and origin stories. Desecration and destruction of an uncounted number of ceremonial areas and actual cultural sites has already occurred and is finally being “re-assessed” by BLM’s Farmington Field Office as regards the oil field operations in the Tri-Chapter area. 1 “Navajo Nation Mortality: Arizona and New Mexico Data”, Navajo Epidemiology Center NEC), 10/27/2016. 2 Id. Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 5 of 7 DECLARATION OF TERESA C. SEAMSTER 6 of 7 • As a result of this displacement and loss of spiritual sites, an impact study on resident’s social and religious wellbeing called Hózhóógó na'ada is being conducted by Diné educational leaders and funded by supporting organizations. • Finally, the cost of protecting the forest from the accidents, spills, air pollution, erosion, water contamination, dust pollution, invasive species, loss of game species and birds, loss of tourism, loss of hunting opportunities, loss of additional recreation and revenue, degradation of land and historic landmarks will be borne by the public and the added work will be borne by the SFNF • The cost of maintaining roads, watersheds, wildlife and human health is the responsibility of the SFNF and the counties – neither of whom have the resources, policies, staff or budget to take on the risk3. 11. My concern is two-fold regarding the proposed lease of 20,000 acres for oil development in SFNF: • No impact study or health assessment or cost-benefit analysis can measure the long term degradation, loss of environmental eco services, loss of healthy rural lifestyles, loss of connection with the land, and loss of water for all life sustaining functions, that oil development invariably inflicts on rural communities – especially on Native communities and Hispanic and Anglo residents – who have always lived off what the land can support. Northern New Mexico is almost 3 The County Manager and staff of Pima County, Arizona, have prepared a detailed cost break down on the ADDITIONAL COST that the Sierrita gas pipeline will inflict on Pima County. Before any decision to lease public land for oil and gas development is permitted, these additional costs should be identified by the impacted counties and the Navajo Nation council on behalf of the Eastern Agency and be budgeted for. (Attached) Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 6 of 7 DECLARATION OF TERESA C. SEAMSTER 7 of 7 totally dependent on what the combined forests, river valleys and healthy environment provides to us as a place we call home. • No industry has gotten more free passes to take state resources and convert them into corporate wealth than the oil industry. It continues to leave the public cost of boom and bust instability to an increasingly impoverished state to cope with along with a growing wasteland that we cannot convert back into something productive, economically viable or even habitable. We are a large state geographically, and our beautiful areas help cover the industry brown fields, corridors and water pollution. But, our residents and our living heritage of forests, grasslands, plants and wildlife are dying from fragmentation, elevated rates of cancer, “impaired” and undrinkable water sources, destroyed habitat, wide-spread invasive plants and serious air and soil contamination. None of these costs are paid for by gas and oil revenues, nor will the industry admit to them being caused by their operations or being their responsibility. As a frequent user of SFNF and resident living adjacent to SFNF, I am potentially harmed financially, environmentally and in bodily health if oil and gas development is permitted on this national forest. I declare under the penalty of perjury that the foregoing is true and correct to the best of my knowledge. Dated this 11th day of November 2016. ___________________________ Teresa C. Seamster Case 1:16-cv-00376-MCA-WPL Document 22-5 Filed 11/18/16 Page 7 of 7