DINE CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; WILDEARTH GUARDIANS; NATURAL RESOURCES DEFENSE COUNCIL, Plaintiffs - Appellants,
DAVID BERNHARDT, in his official capacity as Acting Secretary of the United States Department of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT, an agency within the United States Department of the Interior; NEIL KORNZE, in his official capacity as Director of the United States Bureau of Land Management, Defendants - Appellees, and DJR ENERGY HOLDINGS, LLC; BP AMERICA PRODUCTION COMPANY; AMERICAN PETROLEUM INSTITUTE; ANSCHUTZ EXPLORATION CORPORATION; ENDURING RESOURCES IV, LLC, Intervenor Defendants - Appellees, and CONOCOPHILLIPS COMPANY; BURLINGTON RESOURCES OIL & GAS COMPANY LP, Intervenor Defendants. ALL PUEBLO COUNCIL OF GOVERNORS; NATIONAL TRUST FOR HISTORIC PRESERVATION; NAVAJO ALLOTTEES; ALICE BENALLY; LILLY COMANCHE; VIRGINIA HARRISON; SAMUEL HARRISON; DOLORA HESUSE; VERNA MARTINEZ; LOYCE PHOENIX, Amici Curiae.
from the United States District Court for the District of New
Mexico (D.C. No. 1:15-CV-00209-JB-LF)
Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, New
Mexico (Kyle J. Tisdel, Western Environmental Law Center,
Taos, New Mexico, with her on the briefs), appearing for
Kupfer, U.S. Department of Justice, Environment & Natural
Resources Division, Washington, D.C. (Michael C. Williams, Of
Counsel, Attorney-Advisor, Office of the Solicitor, U.S.
Department of the Interior, Clare M. Boronow, and Mark R.
Haag, U.S. Department of Justice, Environment & Natural
Resources Division, Washington, D.C., on the brief), for the
Hadassah M. Reimer, Holland & Hart LLP, Jackson, Wyoming
(Stephen G. Masciocchi, and John F. Shepherd, Holland &
Hart LLP, Denver, Colorado, Bradford Berge, Holland &
Hart LLP, Santa Fe, New Mexico, Rebecca W. Watson, Welborn
Sullivan Meck & Tooley, P.C., Denver, Colorado, Stephen
Rosenbaum, Covington & Burling, LLP, Washington, D.C.,
and Jon J. Indall, Comeau Maldegen Templeman & Indall
LLP, Santa Fe, New Mexico, with her on the brief), appearing
BRISCOE, McKAY, and HOLMES, Circuit Judges.
BRISCOE, CIRCUIT JUDGE
case, we are asked to decide whether the Bureau of Land
Management violated the National Historic Preservation Act
(NHPA) and the National Environmental Policy Act (NEPA) in
granting more than 300 applications for permits to drill
horizontal, multi-stage hydraulically fracked wells in the
Mancos Shale area of the San Juan Basin in northeastern New
Mexico. Appellants sued the Secretary of the Department of
the Interior, the Bureau of Land Management, and the
Secretary of the BLM, alleging that the BLM authorized the
drilling without fully considering its indirect and
cumulative impacts on the environment or on historic
properties. The district court denied Appellants a
preliminary injunction, and we affirmed that decision in
2016. After merits briefing, the district court concluded
that the BLM had not violated either NHPA or NEPA and
dismissed Appellants' claims with prejudice. Appellants
jurisdiction under 28 U.S.C. § 1291 and affirm in part,
reverse in part, and remand with instructions.
We summarized the underlying facts in the prior appeal.
The San Juan Basin is a large geographic region in the
southwestern United States, including part of New Mexico.
Drilling for oil and gas has occurred in the Basin for more
than sixty years, and the Basin is currently one of the most
prolific sources of natural gas in the country. The Basin
includes both public and private lands. Many of the public
lands and resources fall under the jurisdiction of the Bureau
of Land Management's Farmington Field Office in New
Mexico, which manages these lands and resources under its
published Resource Management Plan.
In 2000, the BLM initiated the process of revising its
existing RMP, which had been published in 1988. As part of
this process, the BLM contracted with the New Mexico
Institute of Mining and Geology to develop a "reasonably
foreseeable development scenario," or RFDS, to predict
the foreseeable oil and gas development likely to occur over
the next twenty years. Based on historic production data and
available geologic and engineering evidence, the RFDS
estimated that 9, 970 new oil and gas wells would be drilled
on federally managed lands in the New Mexico portion of the
San Juan Basin during this time period. Of these wells, the
RFDS estimated that more than forty percent would be
"Dakota, Mancos" gas wells-wells that could produce
gas from both the Mancos geologic horizon and the Dakota
geologic horizon that lies below it. The RFDS estimated that
only 180 new oil wells would be drilled in the Mancos Shale,
due to the fact that most reservoirs in the Mancos Shale were
approaching depletion under then-current technologies, but it
noted that there is excellent potential for the Mancos to be
In 2003, the BLM issued its Proposed Resource Management Plan
and Final Environmental Impact Statement ([2003 EIS]). In
this document, the BLM referred to the predictions and
analysis contained in the RFDS in order to assess four
proposed alternatives for managing federal lands in the San
Juan Basin, including the "balanced approach" the
agency ultimately decided to adopt. Under this balanced
approach, the BLM analyzed the cumulative impacts of an
estimated 9, 942 new wells in the San Juan
Basin-approximately the same number predicted in the 2001
RFDS-by looking at, for instance, the likely air quality
impacts from the drilling and operation of this many new
wells in the region. The [2003 EIS] did not discuss specific
sites or approve any individual wells, although it assumed
the majority of new wells would be drilled in the high
development area in the northern part of the managed area.
The BLM issued its final RMP,
the Alternative D balanced approach, in December 2003.
Diné Citizens Against Ruining Our Env't v.
Jewell (Diné II), 839 F.3d 1276, 1279-80
(10th Cir. 2016) (citations omitted).
the 2003 EIS analyzed oil and gas drilling in the San Juan
Basin generally, operators wanting to drill new wells in the
area must seek and receive approval for specific drilling via
an application for a permit to drill (APD) submitted to the
BLM. When the BLM receives an APD, it prepares an
environmental assessment (EA) examining the environmental
impacts of the proposed drilling. The EA must include an
analysis of the direct, indirect, and cumulative effects of
the proposed drilling. See 40 C.F.R. §§
1508.7, 1508.8. The EA process results in one of three
outcomes: (1) a conclusion that the proposed action would
result in a significant environmental impact, necessitating
an EIS, (2) a conclusion that the proposed action would
not result in a significant environmental impact-a
"finding of no significant impact" (FONSI), or (3)
a conclusion that the proposed action will not go forward. 43
C.F.R. § 46.325. Even if a proposed action will have
significant effects, the EA may still result in a FONSI if it
is tiered to a broader environmental analysis that fully
analyzed those significant effects. Id. §
in 2010, the BLM began receiving APDs for drilling in the
Mancos Shale. Development interest in the area increased
quickly, and between early 2012 and April 2014, seventy new
wells were completed in the Mancos Shale area. In 2014,
recognizing the potential for additional Mancos Shale
development, the BLM had a new RFDS prepared to evaluate the
Mancos Shale's potential for oil and gas development. The
2014 RFDS estimates that full development of the Mancos Shale
would result in 3, 960 new wells.
2014 RFDS predicts that new drilling in the Mancos Shale will
be done largely, if not entirely, by horizontal drilling and
multi-stage hydraulic fracturing. "A horizontally
drilled well starts as a vertical or directional well, but
then curves and becomes horizontal, or nearly so, allowing
the wellbore [i.e., drilled hole] to follow within a rock
stratum for significant distances and thus greatly increase
the volume of a reservoir opened by the wellbore."
Wyoming v. Zinke, 871 F.3d 1133, 1137 (10th Cir.
2017) (alteration in original) (quotations omitted).
Hydraulic fracturing is a process designed to "maximize
the extraction" of oil and gas resources. JA1912.
Fluids, usually water with chemical additives, "are
pumped into a geologic formation at high pressure."
Id. When the pressure "exceeds the rock
strength," it creates or enlarges fractures from which
oil and gas can flow more freely. Id. After the
fractures are created, a "propping agent (usually sand)
is pumped into the fractures to keep them from closing."
As we noted previously,
These new drilling techniques have greatly increased access
to oil and gas reserves that were not previously targeted for
development and have given rise to much higher levels of
development in the Mancos Shale than the BLM previously
estimated and accounted for. Moreover, horizontal drilling
and multi-stage fracturing may have greater environmental
impacts than vertical drilling and older fracturing
Diné II, 839 F.3d at 1283.
fracturing is common in the San Juan Basin and has been used
there in some form since the 1950s. Horizontal drilling,
however, is relatively new. At the time the 2003 EIS issued,
"[h]orizontal drilling [wa]s possible but not [then]
applied in the San Juan Basin due to poor cost[-]to[-]benefit
ratio." JA746. The environmental impacts considered in
the 2003 EIS were therefore based on the impacts associated
with vertical drilling, not horizontal drilling. But the 2003
EIS noted that "[i]f horizontal drilling should prove
economically and technically feasible in the future, the next
advancement in horizontal well technology could be drilling
multi-laterals or hydraulic fracturing horizontal
the 2003 EIS issued, 3, 945 of the 9, 942 contemplated
vertical wells have been drilled in the San Juan Basin. The
BLM continues to receive and approve APDs for horizontal
Mancos Shale wells. Appellants' initial petition in the
district court challenged "at least 130" Mancos
Shale APDs approved by the BLM. JA2449. Over the course of
this litigation, Appellants amended their petition three
times to account for additional granted APDs. Their final
petition challenged "at least 351"
2015, Appellants filed their first Petition for Review of
Agency Action (Petition) in district court, challenging the
BLM's issuance of APDs as violative of NEPA and NHPA.
Appellants named as defendants the Secretary of the United
States Department of the Interior, BLM, and the Director of
BLM (collectively, Federal Appellees). A group of oil
companies (DJR Energy Holdings, LLC, BP America Production
Company, American Petroleum Institute, Anschutz Exploration
Corporation, and Enduring Resources IV, LLC), each of which
owns leases or drilling permits in the Mancos Shale
intervened as defendants (collectively, Intervenor
moved for a preliminary injunction, which the district court
denied. See Diné Citizens Against Ruining Our
Env't v. Jewell (Diné I), No. CIV
15-0209, 2015 WL 6393843 (D.N.M. Sept. 16, 2015). This court
upheld the denial on appeal. Diné II, 839
F.3d 1276. In district court, Appellants amended their
Petition three times to add additional challenged APDs.
Appellants' operative Third Supplemented Petition
alleges, as relevant on appeal: (1) a NEPA violation for
improperly tiering the EAs to the 2003 EIS; (2) a NEPA
violation for failing to prepare an EIS or supplement an
existing EIS; and (3) a NHPA violation for failing to
complete Section 106 consultation. Appellants sought vacatur
of all the challenged APDs and an injunction against all
"future horizontal drilling or hydraulic fracturing in
the Mancos Shale" until the BLM complied with NHPA and
April 2017, Appellants sought judgment in the district court.
On April 23, 2018, the district court ruled against
Appellants and dismissed their claims with prejudice. The
district court made the following relevant rulings: (1)
Appellants have standing to pursue their claims; (2)
Appellants do not establish a NEPA violation; and (3)
Appellants do not establish a NHPA violation.
timely appealed, raising two issues. First, they contend that
the BLM violated NHPA because it "failed to analyze the
indirect and cumulative impacts of the challenged Mancos
Shale drilling permits on cultural sites in the Greater Chaco
Landscape." Aplts. Br. at 1 (footnote omitted). Second,
they argue that the BLM violated NEPA because it "failed
to analyze the cumulative impacts of the challenged Mancos
Shale drilling permits on environmental resources in the
Greater Chaco Landscape." Id. at 2. Appellants
seek vacatur of the challenged APDs and a permanent
injunction against "any further ground-disturbing
activities on the challenged APDs until BLM complies with the
NHPA and NEPA." Id. at 51.
Appellees assert, as they did in the district court, that
Appellants lack standing to challenge the relevant agency
is subject to two statutes relevant on appeal: the National
Historic Preservation Act and the National Environmental
Policy Act. "NHPA . . . is a procedural statute
requiring government agencies to stop, look, and listen
before proceeding when their action will affect national
historical assets." Coal. of Concerned Citizens to
Make Art Smart v. Fed. Transit Admin. of U.S. Dep't of
Transp. (Concerned Citizens), 843 F.3d 886, 905
(10th Cir. 2016) (quoting Presidio Historical Ass'n
v. Presidio Trust, 811 F.3d 1154, 1169 (9th Cir. 2016)).
NHPA was enacted "to foster conditions under which our
modern society and our historic property can exist in
productive harmony and fulfill the social, economic, and
other requirements of present and future generations."
54 U.S.C. § 300101(1).
also a procedural statute. It requires agencies to
"pause before committing resources to a project and
consider the likely environmental impacts of the preferred
course of action as well as reasonable alternatives."
N.M. ex rel. Richardson v. Bureau of Land
Mgmt., 565 F.3d 683, 703 (10th Cir. 2008). NEPA has twin
First, it places upon an agency the obligation to consider
every significant aspect of the environmental impact of a
proposed action. Second, it ensures that the agency will
inform the public that it has indeed considered environmental
concerns in its decisionmaking process.
Forest Guardians v. U.S. Fish & Wildlife Serv.,
611 F.3d 692, 711 (10th Cir. 2010) (quoting Balt. Gas
& Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S
87, 97 (1983)).
NEPA nor NHPA "provide a private right of action,"
so we review the two decisions as "final agency
action[s] under the" APA. Utah Envtl. Cong. v.
Russell, 518 F.3d 817, 823 (10th Cir. 2008). We
apply the same standard of review as the district court: the
familiar "arbitrary and capricious" standard.
Richardson, 565 F.3d at 704-05; 5 U.S.C. §
706(2)(A). An agency's decision is arbitrary and
capricious if the agency:
(1) entirely failed to consider an important aspect of the
problem, (2) offered an explanation for its decision 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, (3) failed to base
its decision on consideration of the relevant factors, or (4)
made a clear error of judgment.
Richardson, 565 F.3d at 704 (citations and
quotations omitted). "A presumption of validity attaches
to the agency action and the burden of proof rests with [the
parties] who challenge such action." Citizens'
Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169,
1176 (10th Cir. 2008) (quoting Colo. Health Care
Ass'n v. Colo. Dep't of Soc. Servs., 842 F.2d
1158, 1164 (10th Cir. 1988)). Our deference to the agency is
"especially strong where the challenged decisions
involve technical or scientific matters within the
agency's area of expertise." Morris v. U.S.
Nuclear Reg. Comm'n, 598 F.3d 677, 691 (10th Cir.
2010) (quoting Russell, 518 F.3d at 824).
standing is jurisdictional, we must first determine whether
Appellants have standing to bring their claims. The district
court concluded that Appellants have standing, and we review
that determination de novo. S. Utah Wilderness All. v.
Palma, 707 F.3d 1143, 1152 (10th Cir. 2013).
as here, an organization sues on behalf of its members, the
organization has standing if:
(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane
to the organization's purpose; and (c) neither the claim
asserted nor the relief requested requires the participation
of individual members in the lawsuit.
Hunt v. Wash. State Apple Advert. Comm'n, 432
U.S. 333, 343 (1977). Federal Appelles do not argue that the
interests Appellants seek to protect are not germane to the
organizations' purposes, nor do they argue that the
participation of individual members is
required. Our standing inquiry is therefore limited
to whether any of Appellants' members "have standing
to sue in their own right." Id. We conclude
that they do.
To establish standing, 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 v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2013). At the summary
judgment stage, Appellants must "set forth by affidavit
or other evidence specific facts, which for purposes of the
summary judgment motion will be taken to be true."
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(citations and quotations omitted).
injury-in-fact prong of our standing analysis "breaks
down into two parts." Comm. to Save the Rio Hondo v.
Lucero, 102 F.3d 445, 449 (10th Cir. 1996). Appellants
must show that (1) "in making its decision without
following [NEPA's] procedures, the agency created an
increased risk of actual, threatened, or imminent
environmental harm," and (2) "the increased risk of
environmental harm injures [the litigant's] concrete
interests by demonstrating either its geographical nexus to,
or actual use of the site of the agency action."
Id. Appellants have satisfied both requirements.
NEPA, "an injury of alleged increased environmental
risks due to an agency's uninformed decisionmaking may be
the foundation for injury in fact under Article III."
Id. Here, the allegedly uninformed decisions
Appellants challenge are the BLM's approval of hundreds
of APDs in the Mancos Shale without considering the indirect
and cumulative impacts to cultural sites and environmental
resources. Aplts. Br. at 1-2. Appellants have sufficiently
tied the BLM's challenged decisions to increased
a member of San Juan Citizens and WildEarth, asserts that the
"Mancos Shale APD authorizations . . . impact the
visual landscape, night sky, solitude and quiet, [and] public
health and safety." JA343. Nichols, a member of
WildEarth, states that "[w]ith the increase in oil and
gas development has come light pollution, more truck traffic,
drilling rigs sticking up from the land, smells, dust, and
more industrialization." JA615. He asserts that
the impacts of Mancos shale oil development have become more
visible, offensive, and degrading of [his] recreational
enjoyment of public lands in the area. The new development
has brought more drilling rigs, flaring, truck traffic, road
building, pipeline construction, the construction and
operation of more tanks and production facilities, and just
overall more oil and gas industry presence in the area.
JA607-08. These facts are sufficient to establish "an
increased risk of environmental harm due to [the BLM's]
alleged uninformed decisionmaking," and they satisfy the
first prong of our injury-in-fact analysis. Lucero,
102 F.3d at 451.
Appellees argue that Appellants fail on this prong of the
standing analysis because the 2003 EIS examined the effects
of "drilling 9, 942 wells using conventional
techniques," and Appellants have not shown that the
challenged Mancos Shale APDs "will increase the risk of
environmental harm in a manner or to a degree not already
considered." Fed. Aples. Br. at 26. This argument
conflates the standing analysis with the merits analysis.
discussed, Appellants have submitted affidavits that show an
increase in environmental harm from drilling activities in
the Mancos Shale area; this satisfies the first prong of our
injury-in-fact analysis. Whether that environmental harm is
of a manner or to a degree not already considered in the 2003
EIS is a question that goes to the merits of Appellants'
NEPA claim. Appellants, of course, need not prove the merits
of their claim in order to establish standing. See,
e.g., Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89 ("It is firmly
established in our cases that the absence of a valid (as
opposed to arguable) cause of action does not implicate
subject-matter jurisdiction . . . .").
"also requires a plaintiff be among the injured."
Lucero, 102 F.3d at 449. Therefore, Appellants
"must be able to show that a separate injury to [their]
concrete, particularized interests flows from the
agency's procedural failure." Id. (citing
Lujan, 504 U.S. at 572). To demonstrate harm to a
plaintiff's concrete interests, the plaintiff must
"establish either its geographic nexus to, or actual use
of the site where the agency will take or has taken action
such that it may be expected to suffer the environmental
consequences of the [challenged] action." Id.
members' affidavits show a geographic nexus to the
affected areas sufficient to satisfy the second prong of our
injury-in-fact analysis. Eisenfeld states that he
"regularly visit[s] the greater Chaco region, including
areas in and around Counselor, Lybrook, and Nageezi,"
and that he "intend[s] to go back [to Nageezi] in May
and June of 2017." JA338. He also states that he has
"visited hundreds of well sites in the [Greater Chaco]
area, and ha[s] frequented lands where many other Mancos
Shale wells are in view." JA342.
regularly visits the Greater Chaco region "for
recreational enjoyment." JA348. He describes visiting
Pueblo Pintado, Chaco Culture National Historical Park (Chaco
Park), Nageezi, and Pueblo Alto. Nichols "intend[s] to
continue visiting the Greater Chaco region, including [Chaco
Park] and its outliers, as well as public lands in the
region, at least once a year for the foreseeable
future," and had a trip planned for "late June
Pinto, a member of Diné, lives in Twin Pines, New
Mexico, which is "located along Highway 550, at the
county line of San Juan and Rio Arriba." JA617.
Beginning in 2013, she noticed a "major increase in
Halliburton trucks along 550, and at the intersection of 7900
and 7950, trucks are staging right off the highway and even
on the county road blocking traffic." JA618. She
"pass[es] through areas that are very potent in natural
gas odors," and has "seen the giant pillars of fire
for the flaring the sites do." ...