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Western Exploration, LLC v. U.S. Department of Interior

United States District Court, D. Nevada

March 31, 2017

U.S. DEPARTMENT OF THE INTERIOR, et al., Defendants.



         I. SUMMARY

         Plaintiffs bring this action against the Department of the Interior (“DOI”), Bureau of Land Management (“BLM”), Department of Agriculture (“DOA”), United States Forest Service (“USFS” or “Forest Service”), and associated government officials, seeking review of two agencies' decisions to amend their resource management plans to provide greater protection to the greater-sage grouse (“GSG”) species and their habitat.[1] In particular, Plaintiffs request that the Court enjoin the agencies from implementing these resource management plans in Nevada and that they be remanded to the agencies for further consideration.

         Before the Court are five motions: (1) Plaintiffs' Motion for Summary Judgment (“Plaintiffs' Motion”) (ECF No. 67); (2) Plaintiffs' Motion to Supplement Administrative Record (“Motion to Supplement”) (ECF No. 68); (3) Defendants' Motion for Summary Judgment (“Defendants' Motion”) (ECF No. 75); (4) Intervenors' Motion for Summary Judgment (“Intervenors' Motion”) (ECF No. 77); and (5) Defendants' Motion to Strike (ECF No. 102). Plaintiffs, Defendants and Intervenors filed responses (ECF Nos. 73, 76, 78, 82, 104) as well as replies (ECF Nos. 83, 84, 94, 105), and Plaintiffs filed a sur-reply.[2](ECF No. 99). The Court held a hearing on the Motions on February 1, 2017. (ECF No. 123.)

         The Court agrees with Plaintiffs that Defendants failed to comply with NEPA and remands for preparation of a supplemental environmental impact statement but denies Plaintiffs' request to enjoin implementation of the agencies' resource management plans pending remand.


         The State of Nevada, nine Nevada counties, [3] three mining companies, [4] and a privately-owned ranch[5] (collectively “Plaintiffs”) initiated this action on September 23, 2015 to challenge BLM and USFS's (collectively “the Agencies”) decisions to amend their respective Land Use and Resource Management Plans (“Plan Amendments”[6]). (ECF Nos. 1, 20.)

         The impetus for the adoption of the Plan Amendments originated with the United States Fish and Wildlife Service (“FWS”). In March 2010, FWS issued a finding on petitions to list three entities of the greater sage-grouse as threatened or endangered under the Endangered Species Act (“ESA”). (75 Fed. Reg. 13910 (Mar. 23, 2010).) FWS found in part that “listing the greater sage-grouse (range wide) is warranted, but precluded by higher priority listing actions.” Id. at 13910. FWS further examined whether existing regulatory mechanisms available to federal agencies, such as BLM and USFS, adequately protect sage-grouse species and their habitat and found them to be mainly inadequate. Id. at 13979-80, 13982. In response, the Agencies began the process of planning for incorporation of sage-grouse protection measures into their land management plans. (ECF No. 75 at 18.) Ultimately, on September 16 and 21, 2015, the Agencies issued Records of Decision (“RODs”)[7] approving their respective management plan amendments, which govern 67 million acres of federal lands across ten western states. (NV 91784; FS 14049.)

         The Plan Amendments guide future land and resource management decisions on lands administered by BLM and the Forest Service. (NV 91787; FS 140074.) The Amendments aim to benefit the greater-sage grouse by maintaining healthy sagebrush-steppe landscapes while simultaneously ensuring that the lands maintain multiple uses. While the Plan Amendments generally established conservation measures for future decision making, they also contain some conservation measures that were self-implementing, mandatory, or took “immediate” effect upon publication of the Plan Amendments. (NV 90715: FS 140123.) For instance, the Plan Amendments recommend but do not mandate the withdrawal of particular public lands - specifically, Sagebrush Focal Areas (“SFAs”) - from mineral entry under the General Mining Law, subject to valid existing rights. (NV 91813; FS 140069.) Consistent with the Plan Amendments, BLM petitioned the Secretary of Interior (“the Secretary”) to consider proposing a withdrawal. (WO 65706.) However, the actual withdrawal did not occur until the Secretary decided to accept BLM's recommendation and issued a Notice of Proposed Withdrawal and Temporary Segregation[8] (“Notice of Proposed Withdrawal”) on September 24, 2015, one day after Plaintiffs initiated this action. (80 Fed. Reg. 57, 635 (Sept. 24, 2015).) By contrast, the Plan Amendments immediately excluded nonenergy and salable mineral development on PHMA in Nevada. (NV 91814.)

         In the First Amended Complaint (“FAC”), Plaintiffs allege that the Agencies' decisions to adopt the Plan Amendments are contrary to the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., the Small Business Administration Regulatory Flexibility Act (“SBREFA”), 5 U.S.C. § 801 et seq., the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., the General Mining Law, 3 U.S.C. § 21 et seq., and the Due Process Clause of the Fifth Amendment. (ECF No. 20.)

         Plaintiffs request that the Court enjoin the DOI and BLM from implementing the Nevada portion of the BLM Plan and enjoin the DOA and USFS from implementing the Nevada portion of the USFS Plan. (Id. at 3, 87-88.) In effect, Plaintiffs ask this Court to stop Defendants from taking any action that would interfere with Plaintiffs' continued access to all Nevada lands (including federal public lands) that were open for mineral entry or other public use prior to any segregation resulting from the withdrawal of federal public lands that was recommended in the RODs. (Id.)

         Plaintiffs and Defendants have filed cross-motions for summary judgment. (ECF Nos. 67. 75.) Intervenors have also moved for summary judgment, joining certain of Defendants' arguments and asking the Court to deny Plaintiffs' injunction request or vacatur pending remand even if the Court were to agree with Plaintiffs on the merits. (ECF No. 77.)


         A. Motion to Strike

         As a threshold matter, Defendants seek to strike Exhibits 1, 2 and 6 of Plaintiffs' sur-reply (ECF No. 99), contending that the information presented is not part of the administrative record and is presented for the first time in Plaintiffs' sur-reply. (ECF No. 102.) Plaintiffs counter that the Court may consider extra-record information for purposes of standing and the information presented responds to the issues raised in Defendants' reply. (ECF No. 104.) Plaintiffs also argue that the information in these exhibits is not “new evidence . . . but is merely responsive to, and ‘provides the full context' for the ‘selected recitation of the facts' found in Defendants' Reply.” (Id. at 2.) However, it is Plaintiffs' burden to demonstrate standing. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). Plaintiff cannot make a general statement to support standing and then provide more specific information in the sur-reply after Defendants had challenged the lack of injury to support Plaintiffs' standing. This is particularly true where the information was available to Plaintiffs during the briefing period on the pending motions.

         The Court agrees with Defendants that the new information presented for the first time in Exhibits 1 and 2 should be stricken. As Defendants point out, except for the information in Exhibit 1 relating to whether Eureka County has access to an off-site location to store gravel (in paragraph 3), Exhibit 1 responds to issues raised in Defendants' Motion, which Plaintiffs should have addressed in their opposition. (ECF No. 105 at 2-3.) Exhibit 2 addresses White Pine County's alleged injury with respect to land disposal, but Defendants challenged this type of injury in their initial Motion. (ECF No. 99-2; ECF No. 75 at 26.) The Court agrees with Defendants that Plaintiffs cannot offer Exhibit 2 for the first time in their sur-reply brief.

         Plaintiffs do not dispute that Exhibit 6 is not part of the administrative record, nor does it relate to the issue of standing which permits the Court to consider extra-record materials. (ECF No. 104 at 6-7.) Plaintiffs assert that Exhibit 6 is piece of a demonstrative evidence and shows that BLM made substantial changes to the Coates habitat map and that Plaintiffs discussed an identical map in their reply. (Id.) The Court agrees with Defendants that Exhibit 6 is not part of the administrative record and does not fall within any exception for consideration of extra-record materials. Moreover, it is also new information offered for the first time in Plaintiffs' sur-reply.

         The Court declines to strike paragraphs 1 through 3 in Exhibit 1 but will grant Defendant's request to strike the remainder of Exhibit 1 and to strike Exhibits 2 and 6.

         B. Motion to Supplement Record

         The Court agrees with Defendants that the documents Plaintiffs seek to be included with the administrative record are not appropriate for supplementation. In any event, because the Court remands the RODs to the Agencies, the Court denies Plaintiffs' motion as moot.


         Defendants insist that Plaintiffs' claims are not justiciable because (1) the withdrawal of lands for mineral entry was a separate process from the Plan Amendments, (2) Plaintiffs lack standing and (3) Plaintiffs' claims are not ripe. (ECF No. 75 at 22-34.) Defendants further argue that Plaintiffs' claims fail on the merits. Plaintiffs disagree. The Court will address the threshold issues first before reaching the merits.

         As an initial matter, the standard for summary judgment applies to the threshold issues raised in Defendants' Motion. That is, in evaluating a summary judgment motion, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp. 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts, ” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

         A. Justiciability of Claims Stemming from Notice of Proposed Withdrawal

         The Mining Companies and several of the other Plaintiffs allege injuries that arise from the Notice of Proposed Withdrawal, which resulted in a temporary segregation of PHMA and SFA from mineral entry. While the choice of what lands to withdraw from mineral entry is based on the designation of particular public lands as PHMA or SFA under the Plan Amendments, such designation did not automatically result in withdrawal. As Defendants aptly point out, the RODs only recommended withdrawal of Focal Areas, and BLM was not required to petition the Secretary for withdrawal nor was the Secretary obligated to accept BLM's recommendation. (ECF No. 75 at 32; GBR 10781; NV 90682.) Therefore, despite the classification of certain lands as PHMA or SFA in the Plan Amendments, Plaintiffs cannot seek to enjoin the withdrawal process by challenging the Plan Amendments. Claims that stem from the Notice of Proposed Withdrawal (counts III, VII, VIII and IX) are not properly asserted in this case.

         The Mining Companies appear to believe that the ultimate basis for their alleged injuries is their inability to comment on the Plan Amendments' recommendation for mineral withdrawal. However, the Mining Companies do, in fact, have the ability to challenge the decision by the Secretary to accept the recommendation of withdrawal, which the Secretary could have chosen not to do. Their remedy is to directly challenge the Secretary's decision to accept BLM's recommendation to withdraw these lands from mineral entry. Because the Mining Companies' claimed injuries relate to the Notice of Withdrawal, they cannot demonstrate Article III standing to challenge the Plan Amendments. See discussion infra at sect. IV(B)(1).

         B. Standing

         An analysis of standing involves both Article III limitations as well as non-constitutional statutory limitations. See Pershing Park Villas Homeowners Ass'n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000). In Defendants' Motion, they argue that Plaintiffs' claims are not currently justiciable in part because Plaintiffs lack standing to challenge the Plan Amendments. (ECF No. 75 at 22-34.) Specifically, they argue that Plaintiffs have failed to show they have satisfied the constitutional requirement that they suffered a concrete and particularized injury or that such injury is imminent. The Court finds that only three Plaintiffs have alleged sufficiently specific facts to demonstrate that they have suffered a concrete and imminent injury sufficient for Article III standing.

         Given the number of Plaintiffs and the variety of statutes at issue in this case, the Court will address both constitutional and statutory standing with respect to each Plaintiff.

         1. Article III Standing

         “Article III of the Constitution limits federal-court jurisdiction to ‘Cases' and ‘Controversies.'” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “To satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The party invoking federal jurisdiction bears the burden of establishing these elements. FW/PBS, 493 U.S. at 231.

         Moreover, the party invoking standing also must show that it has standing for each type of relief sought. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). However, as Plaintiffs correctly pointed out at the hearing, only one Plaintiff needs to show standing for the Court to address the claims asserted in this case. See Massachusetts, 549 U.S. at 518 (in addressing a challenge to standing, the Court noted that “[o]nly one of the petitioners needs to have standing to permit [the Court] to consider the petition for review.”)

         a. State of Nevada

         While a state does not have standing as parens patriae to bring an action against the federal government on behalf of its citizens, a state may bring suit based on a variety of proprietary interests - for example, a state may own land or participate in a business venture. Alfred L. Snapp & Son, Inc., v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601, 610 n.16 (1982) (citing Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923)). As a result of such proprietorship, a state may have standing to bring suit to remedy harm to those interests. Moreover, a state may challenge land management practices on federal land that could affect adjacent state-owned land. See Douglas County v. Babbitt, 48 F.3d 1495, 1501 (9th Cir. 1995) (county alleged via affidavit that land management practices on federal lands would “[fail] to properly manage for insect and disease control and fire, ” threatening the productivity and environment of adjoining county lands).

         In the FAC, the State generally alleges that, based on Nevada law, it has significant interests in the “protection, propagation, restoration, transplanting, introduction and management of wildlife in [the] State.” (ECF No. 20 at 4-5 (citing NRS § 501.181(1)(a)).) Specifically, the State challenges the Plan Amendments' disturbance cap protocol, claiming that the protocol actually encourages sage-grouse habitat fragmentation by providing a “perverse incentive to locate new disturbances in areas with little existing disturbance, which in turn increases direct and indirect effects to [the GSG].” (Id. at 5 (quoting Governor Brian Sandoval).) In their reply brief, the State also claims that the Plan Amendments increase the risk for fire and that the Amendments curb the state Department of Wildlife's ability to effectively manage wildlife (including the sage-grouse). (See ECF No. 82 at 17-18.) The crux of the State's alleged injury is that the Plan Amendments interfere with land-use planning on state land, a viable proprietary interest.

         However, the Court fails to find sufficiently specific facts in Plaintiffs' various briefs and declarations to demonstrate how particular binding standards in the Plan Amendments have caused, or imminently will cause, a concrete and particularized injury to the State. See Churchill County v Babbitt, 150 F.3d 1072, 1079 (9th Cir. 1998) (opinion amended and superseded on denial of rehearing) (city and county demonstrated a threatened concrete interest by asserting in affidavits that federal water programs would harm lands possessed or managed by them by causing fire hazards, airborne particles, erosion, unknown changes to underground water supply and reduced quality of local drinking water). The State identifies the specific Plan Amendment provisions that allegedly injure them - adaptive management triggers, allowance of unspecified mitigation measures, classification of land as “SFA, ” the 3 percent disturbance cap, no mitigation regulation on OHMA, and travel and transportation management (ECF No. 20 at 67) - but fails to provide evidence or specific facts showing exactly how these provisions cause them concrete harm that is imminent. Instead, they generally allege the provisions will “have an enormous impact on [sage-grouse] habitat and interfere substantially with conservation efforts of the State.” (Id. at 66-67.)[9] This is insufficient to withstand a motion for summary judgment.

         Therefore, the State fails to offer sufficiently specific facts supported by admissible evidence to satisfy the initial Article III threshold of injury in fact.

         b. Counties

         The Ninth Circuit has held that “political subdivisions, such as cities and counties, whose power is derivative and not sovereign, cannot sue as parens patriae, although they might sue to vindicate such of their own proprietary interests as might be congruent with the interests of their inhabitants.” In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d 122, 131 (9th Cir. 1973). A municipality, such as a county, has a proprietary interest in its ability to enforce land-use regulations, its powers of revenue collection and taxation, and its proprietary interest in protecting natural resources from harm. See City of Sausalito v. O'Neill, 386 F.3d 1186, 1198 (9th Cir. 2004) (citing Scotts Valley Band of Pomo Indians of Sugar Bowl Rancheria v. United States, 921 F.2d 924, 928 (9th Cir. 1990) (land-use); Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 848-49 (9th Cir. 1985) (revenue collection and taxation); Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 944 (9th Cir. 2002) (natural resources). Moreover, the Ninth Circuit has determined that an increased risk of wildfire is sufficient to support standing. See Delta Water Agency v. United States, 306 F.3d 938, 949-50 (9th Cir. 2002) (agreeing with the D.C. Circuit that a substantial risk of wildfire is a threat of injury that entitles plaintiffs to be heard). Additionally, a county may assert an injury to its proprietary interests where “land management practices of federal land could affect adjacent” county-owned land. Douglas County, 48 F.3d at 1501.

         To survive a motion for summary judgment raising standing, the counties must set forth “specific facts” by affidavit or by other admissible evidence demonstrating that they have suffered an “injury in fact” as a result of the Plan Amendments. See Anderson, 477 U.S. at 256; Friends of the Earth, 528 U.S. at 180-81. For the reasons discussed below, the Court finds that only three counties - Humboldt, Eureka, and Washoe - have offered sufficiently specific facts supporting the existence of an injury in fact to withstand Defendants' Motion.

         1. Elko County

         In the FAC, Elko County generally asserts that the travel restrictions in the Plan Amendments affect 40 percent of all of the roads in their county as well as segments of roughly 1, 500 miles of county roads. (ECF No. 20 at 44; ECF No. 82-17 at 3.) Specifically, the Plan Amendments prohibit cross-country travel, use of certain roads during specific seasons or times of day, and impose limitations on noise disturbance in designated sage-grouse habitat. (Id. at 44.) Elko contends that these restrictions interfere with their land use planning and police powers, such as their obligation to maintain the transportation system and to provide emergency services. (Id. at 6.) They also allege that the grazing restrictions in the Plan Amendments will cause them environmental harm because of a resulting “build-up of fuel load on the range and [an] increase [in] wildfire frequency and intensity.” (Id.) Elko also states that the Plan Amendments' prohibition on wind energy development in the PHMA will cause a loss of tax revenue, pointing to an acknowledgment of such a loss by the Agencies in the FEIS. (See ECF No. 82 at 6.) The Court fails to find sufficiently specific facts in the supporting affidavits and evidence to establish that Elko County has Article III standing.

         In the declaration of Scott Brown (ECF No. 82-17), the County provides an example of an alleged injury to county road maintenance caused by the Plan Amendments. Roughly one-third of a particular segment of county road that gives residents access to private land is under the jurisdiction of BLM. (Id. at 2.) In fiscal year 2015-2016, the County developed a project to resurface this particular segment of the road, including the portion under BLM's jurisdiction. Because of the BLM road segment's proximity to sage-grouse habitat, BLM required that the Nevada Department of Wildlife (“NDOW”) approve the County's application for a Right of Way (“ROW”), which took approximately a month and a half. (Id. at 3.) The ROW has yet to be approved, but this can be explained by the County's failure to provide an updated cultural resources survey. (See id.; ECF No. 95 at 14.)

         Elko's assertions about the Plan Amendments' effect on its ability to maintain roads as evidenced in Mr. Brown's declaration are not enough to demonstrate Article III standing. First, the alleged injury occurred after the filing of this action - the application for the ROW occurred in November of 2015 (ECF No. 82-17 at 2) - and cannot be relied upon to show standing. See Lujan, 504 U.S. at 569 n. 4 (“The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.”) (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)). Moreover, the BLM Plan did not change the requirement that the County obtain approval to resurface BLM's portion of the road. Rather, the BLM Plan requires that BLM work with local governments to minimize upgrading existing routes in PHMA and GHMA unless the upgrade is necessary for public safety. (See N 90709.) Thus, Elko's claim that its failure to obtain a ROW has caused Elko monthly maintenance requirements of approximately $9, 300 is unpersuasive, especially since Elko offers no reasons why it did not at least resurface its portion of the road during fiscal year 2015-2016 to avoid these costs.

         Elko's assertions of other harm are similarly insufficient to demonstrate standing. Elko relies on a declaration from Demar Dahl to support its claims regarding the Plan Amendments' grazing restrictions, travel restrictions, and prohibition on wind energy projects. (ECF No. 67-2.) First, the grazing restrictions do not take effect immediately according to the Plan Amendments; rather, permits are modified over a period of time and based on site-specific considerations.[10] Mr. Dahl asserts that the livestock grazing restrictions will result in increased fire frequency, but he fails to provide facts to show how these restrictions, as applied in the future, will result in increased wildfires in the county. (Id. at 6.) Such alleged potential harm in the future is not “actual or imminent.” See Summers, 555 U.S. at 496 (finding a desire to return without expression of any firm intention to visit a location subject to the challenged regulation insufficient to satisfy the imminent injury requirement of standing). Mr. Dahl also states that the grazing restrictions affect private ranching and agriculture. (ECF No. 67-2 at 6.) Because Mr. Dahl does not connect his assertion of injury to private parties with the proprietary interests of Elko (other than a general allegation of economic harm) (id. at 7), the claimed harm to Elko's citizens is asserted as parens patriae, which Elko cannot bring. See In re Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481 F.2d at 131.

         Second, Mr. Dahl fails to identify any post-decisional injuries caused by the Plan Amendments' prohibition on wind energy development; rather, he mentions the County's inability to proceed on the China Wind Energy Project, which occurred before the FEIS or Plan Amendments were issued. (ECF No. 67-2 at 10.)

         Finally, Mr. Dahl raises injuries caused by the travel restrictions: (1) ranches, hunters, recreationists, and exploration geologists will be prohibited from road-access to county lands and cross-country travel; (2) the seasonal and daily travel restrictions as well as proposed road closures may impede or even eliminate access to adjacent private land sections and deprive landowners of access to their private property; and (3) road closures interfere with the County's obligation to maintain their roads and provide for public safety. (Id. at 9-10.) However, the first two injuries affect private citizens and it is unclear how they affect the proprietary interests of Elko; and such injuries are also too speculative and not actual or imminent. The third injury is too vague (as well as speculative) to show imminent harm for purposes of rebutting Defendants' Motion.

         Thus, the Court finds that Elko County fails to offer sufficiently specific facts supported by admissible evidence to satisfy the initial threshold showing of injury in fact for purposes of Article III standing.

         2. ...

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