United States District Court, D. Nevada
(Pl.'s Amended Motion for Preliminary Injunctive Relief-dkt. no. 18)
MIRANDA M. DU, District Judge.
This action challenges Defendant Bureau of Land Management's ("BLM") decision to propose oil and gas leasing in central and southwest Nevada. Plaintiff asks the Court to preliminarily enjoin Defendants from issuing oil and gas leases due to allegedly defective environmental analyses. Although BLM has conducted a lease sale, it retains discretion to issue any leases resulting from the lease sale. Because Plaintiff seeks to enjoin an agency decision that is not yet final, the Court finds that it lacks subject matter jurisdiction to review BLM's action. Plaintiff's Amended Motion for Preliminary Injunctive Relief ("Motion") (dkt. no. 18) is therefore denied.
Plaintiff, Reese River Basin Citizens Against Fracking, brings this action on behalf of its members, a group of property owners with ranching and farming land, water rights, and grazing rights in proximity to and over land that BLM has proposed for oil and gas leasing. (Dkt. no. 8 ¶¶ 1, 4.)
BLM began the process of offering parcels for oil and gas leasing in September 2013. (Dkt. no. 20 at 3-4.) On February 12, 2014, BLM posted a preliminary Environmental Assessment ("EA") for public review and comment. ( Id. at 5.) BLM received 5, 100 comments during a thirty-day period while the EA was posted, but most were nearly identical form letters. ( Id. ) BLM has also posted a draft Finding of No Significant Impact for the July 2014 Competitive Oil and Gas Lease Sale ("FONSI") and a draft Decision of Record. (Dkt. no. 8 ¶ 53; see dkt. nos. 36-2, 36-3.)
BLM has updated the EA several times since it was first posted in February 2014. (Dkt. no. 20 at 6.) In fact, the most recent update appears to have occurred on August 14, 2014. (Defs.' App. 3, AR XXXXXX-XXX.) BLM also updated the unsigned FONSI and Decision of Record on the same date. (Dkt. no. 20 at 6; AR XXXXXX-XX.)
On April 14, 2014, BLM published its Notice of Competitive Oil and Gas Lease Sale ("Notice of Lease Sale"), identifying the final list of 102 parcels available for competitive auction. (Dkt. no. 32-4.) The available parcels cover approximately 174, 021 acres in Lander, Nye, and Esmeralda Counties. ( Id. ) The Notice of Lease Sale identified the competitive sale date (July 17, 2014) and explained the right of the public to protest BLM's decision to include certain parcels in the lease sale. ( Id. ) BLM received four protests, including a protest from William Gandolfo, a member of Plaintiff. (Dkt. no. 20 at 5.) BLM has sixty (60) days after the lease sale to make a decision on the protest and "will issue no lease for a protested parcel until the State Director makes a decision on the protest." (Dkt. no. 32-4 at 9.) The lease sale occurred on July 17, 2014, but the leases, if issued, will not be issued before September 15, 2014. (Dkt. no. 15-1 ¶ 4.)
Plaintiff's Amended Complaint asserts claims for violations of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. (Dkt. no. 8 at 21-23.) Plaintiff argues that BLM violated NEPA by preparing an inadequate EA, adopting an incomplete FONSI, and failing to prepare an environmental impact statement ("EIS") for the proposed lease sale. ( Id. ) The Amended Complaint requests that the Court enjoin the lease sale and "any leases issued pursuant to such sale." ( Id. at 24.)
Shortly after initiating this action on June 27, 2014, Plaintiff moved for an emergency preliminary injunction to enjoin BLM from proceeding with the July 17, 2014, lease sale. (Dkt nos. 1, 5.) The Court ultimately denied emergency relief, finding that based on the evidence presented, Plaintiff could not demonstrate irreparable harm because the lease sale would not result in the automatic issuance of any leases. (Dkt. no. 16.) The Court permitted Plaintiff to amend its motion to address other deficiencies. The Court heard oral argument on Plaintiff's Motion on September 3, 2014.
During oral argument, Plaintiff's counsel clarified that Plaintiff seeks to preliminarily enjoin the issuance of the leases. Plaintiff essentially concedes, however, that because the leases have not been issued, no final agency action has occurred. Plaintiff instead contends that the issue is ripe because the record is fixed and because its members will suffer hardship if any leases are issued. BLM argues that no final agency action will exist until it decides whether to issue the leases. Absent a final agency action, BLM contends, the Court lacks subject matter jurisdiction to review BLM's environmental analyses under the APA.
"NEPA imposes only procedural requirements, " Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994) (citation omitted); it does not provide a private right of action. Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006). Thus, "[t]he judicial review provision of the APA is the vehicle" for challenging an agency's decision under NEPA. Turtle Island Restoration Network v. U.S. Dep't of Commerce, 438 F.3d 937, 942 (9th Cir. 2006); Gros Ventre Tribe, 469 F.3d 814. Where, as here, review of an agency action is sought not based upon a "specific authorization in the substantive statute, but only under the general review provisions of the APA, the agency action' in question must be final agency action.'" Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990); see Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (because the substantive statute under which plaintiff sought relief did not provide for judicial review, plaintiff needed to challenge a final agency action under the APA).
Moreover, final agency action is a jurisdictional prerequisite to obtaining judicial review. Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008). Therefore, as a threshold matter, the Court must first determine whether ...