Diné Citizens Against Ruining Our Env't v. Jewell
This text of 312 F. Supp. 3d 1031 (Diné Citizens Against Ruining Our Env't v. Jewell) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
*1043THIS MATTER comes before the Court on the Plaintiffs' Opening Merits Brief, filed April 28, 2017 (Doc. 112)("Diné Brief"). The primary issues are: (i) whether the Plaintiffs have standing to pursue their claims under the National Environmental Policy Act,
FACTUAL BACKGROUND
The Court divides its factual background into five sections. First, the Court will introduce the parties. Second, it will discuss oil-and-gas development in the San Juan Basin-a petroleum-rich geologic structural basin in the Four Corners region of the States of New Mexico and Colorado, which, although sparsely populated, is home to many Navajo Native Americans, also known as the Diné. See Diné Citizens Against Ruining Our Environment v. Jewell, No. CIV 15-0209,
1. The Parties.
Plaintiff Diné Citizens Against Ruining Our Environment ("Diné CARE") is an organization of Navajo community activists in the Four Corners region. See Dine,
a. The Plaintiff Organizations' Members.
Mike Eisenfeld is a member of San Juan Alliance and WildEarth Guardians. See Declaration of Mike Eisenfeld ¶ 1, at 1 (executed April 25, 2017), filed April 28, 2017 (Doc. 112-1)("Eisenfeld Decl."). He has visited Chaco Park-a historic site in the San Juan Basin-at least annually since 1997. See Eisenfeld Decl. ¶ 5, at 2. He last visited there in July, 2016. See Eisenfeld Decl. ¶ 5, at 2. He also regularly visits "the greater Chaco region, including areas in and around Counselor, Lybrook, and Nageezi," New Mexico.2 Eisenfeld Decl. ¶ 5, at 2. He last visited the "Nageezi area" on April 20, 2017, and intends to return in May and June of 2017. Eisenfeld Decl. ¶ 5, at 2. He contends that the BLM has approved various APDs after conducting EAs that were not available for the public, including himself, to review. See Eisenfeld Decl. ¶ 9, at 4-5. Specifically, Eisenfeld checked the BLM's website and visited its public reading room throughout 2014, and on October 2, 2014, "no NEPA documentation was available to the public." Eisenfeld Decl. ¶ 11, at 6.
According to Eisenfeld, the BLM's approval of these APDs "threatens to irreparably harm [his] personal and professional interest in an intact Chacoan landscape ... by impacting important environmental (air, water, treasured landscapes), historical, and cultural resources." Eisenfeld Decl. ¶ 9, at 5 (alteration added). Eisenfeld states that he has visited hundreds of well sites in the "greater Chaco area" and has "frequented lands where many other Mancos Shale[3 ] wells are in view." Eisenfeld Decl. ¶ 12, at 6.
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JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
*1043THIS MATTER comes before the Court on the Plaintiffs' Opening Merits Brief, filed April 28, 2017 (Doc. 112)("Diné Brief"). The primary issues are: (i) whether the Plaintiffs have standing to pursue their claims under the National Environmental Policy Act,
FACTUAL BACKGROUND
The Court divides its factual background into five sections. First, the Court will introduce the parties. Second, it will discuss oil-and-gas development in the San Juan Basin-a petroleum-rich geologic structural basin in the Four Corners region of the States of New Mexico and Colorado, which, although sparsely populated, is home to many Navajo Native Americans, also known as the Diné. See Diné Citizens Against Ruining Our Environment v. Jewell, No. CIV 15-0209,
1. The Parties.
Plaintiff Diné Citizens Against Ruining Our Environment ("Diné CARE") is an organization of Navajo community activists in the Four Corners region. See Dine,
a. The Plaintiff Organizations' Members.
Mike Eisenfeld is a member of San Juan Alliance and WildEarth Guardians. See Declaration of Mike Eisenfeld ¶ 1, at 1 (executed April 25, 2017), filed April 28, 2017 (Doc. 112-1)("Eisenfeld Decl."). He has visited Chaco Park-a historic site in the San Juan Basin-at least annually since 1997. See Eisenfeld Decl. ¶ 5, at 2. He last visited there in July, 2016. See Eisenfeld Decl. ¶ 5, at 2. He also regularly visits "the greater Chaco region, including areas in and around Counselor, Lybrook, and Nageezi," New Mexico.2 Eisenfeld Decl. ¶ 5, at 2. He last visited the "Nageezi area" on April 20, 2017, and intends to return in May and June of 2017. Eisenfeld Decl. ¶ 5, at 2. He contends that the BLM has approved various APDs after conducting EAs that were not available for the public, including himself, to review. See Eisenfeld Decl. ¶ 9, at 4-5. Specifically, Eisenfeld checked the BLM's website and visited its public reading room throughout 2014, and on October 2, 2014, "no NEPA documentation was available to the public." Eisenfeld Decl. ¶ 11, at 6.
According to Eisenfeld, the BLM's approval of these APDs "threatens to irreparably harm [his] personal and professional interest in an intact Chacoan landscape ... by impacting important environmental (air, water, treasured landscapes), historical, and cultural resources." Eisenfeld Decl. ¶ 9, at 5 (alteration added). Eisenfeld states that he has visited hundreds of well sites in the "greater Chaco area" and has "frequented lands where many other Mancos Shale[3 ] wells are in view." Eisenfeld Decl. ¶ 12, at 6. Eisenfeld alleges that the *1045BLM has allowed "APD proponents to flare natural gas in the greater Chaco area when drilling for oil." Eisenfeld Decl. ¶ 13, at 6. According to Eisenfeld, this flaring harms the air quality and his health, and "compromises the night sky" in the Chaco Park area. Eisenfeld Decl. ¶ 13, at 6-7. Eisenfeld states that the APD approvals have also "compromised noted archeological sites." Eisenfeld Decl. ¶ 13, at 7. Eisenfeld states that he is "harmed by the lack of government agency compliance in evaluating the direct, indirect, cumulative and connected impacts of operations approved by BLM." Eisenfeld Decl. ¶ 16, at 8.
In 2010-2012, Eisenfeld visited some Mancos Shale wells amongst the communities of Counselor, Lybrook, and Nageezi. See Supplemental Declaration of Mike Eisenfeld ¶ 3, at 2 (executed July 26, 2017), filed July 28, 2017 (Doc. 117-3)("Eisenfeld Supp. Decl."). He visited "over 150 WPX [and] Encana[4 ]... wells being drilled and developed in the Mancos Shale." Eisenfeld Supp. Decl. ¶ 3, at 2 (alteration added). Specifically, he has visited well sites called "Encana Lybrook, Gallo Canyon Unit and Escrito wells, and WPX Chaco unit wells." Eisenfeld Supp. Decl. ¶ 3, at 2. At these well sites, Eisenfeld has seen "drilling, flaring, hydraulic fracturing, nitrogen treatment, fracking trucks, chemical storage and an endless stream of activity." Eisenfeld Supp. Decl. ¶ 4, at 2. Eisenfeld states that "the flaring of natural gas from the Mancos Shale oil wells have been visually apparent ... [,] representing waste, pollution and lost revenue/royalties." Eisenfeld Supp. Decl. ¶ 6, at 3. Eisenfeld states that the resulting fumes, reckless truck travel, and even exploding wells have made him feel unsafe when traveling in the Mancos Shale area. See Eisenfeld Supp. Decl. ¶ 7, at 4. Eisenfeld notes that an explosion occurred on a well pad in Nageezi in 2016, and he states that he fears that additional explosions may follow "as long as Mancos Shale development is allowed to proceed unimpeded and unanalyzed." Eisenfeld Supp. Decl. ¶ 8, at 4. Eisenfeld also submits to the Court photographs that "show clustered WPX wells, a producing Mancos Shale oil well, a well site with three active flares, and a five-acre well pad where Mancos Shale oil is being drilled for." Eisenfeld Supp. Decl. ¶ 8, at 4.
Jeremy Nichols is a member of WildEarth Guardians. See Declaration of Jeremy Nichols ¶ 2, at 2 (executed April 27, 2017), filed April 28, 2017 (Doc. 112-2)("Nichols Decl."). Nichols states that he visited "the Chaco outlier ruin of Pueblo Pintado" in March, 2017. Nichols Decl. ¶ 5, at 3. He visited Chaco Park in March, 2008, March, 2012, April, 2013, and May, 2015. See Nichols Decl. ¶ 5, at 4-5. Nichols states that he intends to continue visiting "the Greater Chaco region, including [Chaco Park] and its outliers ... at least once a year for the foreseeable future." Nichols Decl. ¶ 6, at 6. He states that he intends to visit "this area" again in June, 2017, when he has a trip planned. Nichols Decl. ¶ 6, at 6. Nichols states that he does not recall any oil-and-gas development in the area in 2008, but by 2014, "there were rigs seemingly all over the place, around Nageezi and the road to [Chaco Park]." Nichols Decl. ¶ 7, at 6-7. According to Nichols, during his last visit, "there were extensive oil and gas well facilities and infrastructure in the area, particularly around Nageezi and Lybrook." Nichols Decl. ¶ 7, at 7. Nichols states that this new oil-and-gas development "has detracted significantly from [his] enjoyment of the Greater Chaco area," and has "significantly eroded the *1046natural and remote nature of the region." Nichols Decl. ¶ 8, at 7 (alteration added). According to Nichols, the oil-and-gas development has also created "smells, dust, and more industrialization," which are "aesthetically displeasing." Nichols Decl. ¶ 9, at 7. Nichols states that, "[i]f the BLM were prohibited from approving new drilling permits in this area until it developed a new plan ... [,] it would diminish the harms to [his] recreational enjoyment of the area and likely ensure that [his] future visits with friends and family will be more enjoyable than they currently are." Nichols Decl. ¶ 12, at 9 (alteration added).5
Deborah Green represents that she is a member of the Natural Resources Defense Council. See Declaration of Deborah Green ¶ 3, at 2 (executed April 14, 2017), filed April 28, 2017 (Doc. 112-3)("Green Decl."). Green states that she visits Chaco Park "at least once a year." Green Decl. ¶ 4, at 2. Green intends to return to Chaco Park "this fall" (referring to fall 2017) and "in the future." Green Decl. ¶ 6, at 2. Green states that oil-and-gas development "in the Chaco Canyon[6 ] area/region and [Chaco Park]" would harm Green's visitor experience, because of potential air, noise, and light pollution, large truck traffic, and the possibility of "soil and groundwater contamination due to drilling practices." Green Decl. ¶ 7, at 2-3. Green states that she also has "concerns" regarding the use of hydraulic fracturing ("fracking")7 "in the Chaco Canyon area/region and Chaco [Park]," because fracking may contaminate the area's groundwater. Green Decl. ¶ 8, at 3. Green explains that, if the Court vacates the BLM's approvals of APDs, then she "will be able to continue using the Chaco Canyon area/region and [Chaco Park] for hiking, camping, and spiritual contemplation." Green Decl. ¶ 9, at 3. Green states that she has experienced several environmental problems while driving along Highway 550 to Chaco Canyon, including air pollution from gas flares, exhaust from oil-and-gas trucks, noise pollution from heavy truck traffic, and light pollution from nighttime drilling. See Supplemental Declaration of Deborah Green ¶ 8, at 3 (executed July 27, 2017), filed July 28, 2017 (Doc. 117-4)("Green Supp. Decl.").
Hope Miura represents that she lives in the Cochiti Pueblo,8 which is "about a three hour drive ... to the Chaco Canyon area/region." Declaration of Hope Miura ¶ 1, at 2 (executed April 17, 2017), filed April 28, 2017 (Doc. 112-4)("Miura Decl."). Miura states that she is a member of the Natural Resources Defense Council. See Miura Decl. ¶ 2, at 2. Miura states that she has visited Chaco Park, and she plans to return there "next year, and in the future." Miura Decl. ¶ 5, at 2. According to Miura, oil-and-gas development "in the Chaco Canyon area/region and [Chaco Park]" would "ruin the views and tranquility of the Chaco Canyon area." Miura Decl. ¶ 6, *1047at 2. Miura states that she is concerned that fracking in the area may cause earthquakes, and "damage the rock formations and sacred sites where Native Americans have their ancestral ceremonies." Miura Decl. ¶ 7, at 2-3. Miura also states that she is "concerned about the effects of oil and gas development on air quality in the area, including toxic fumes." Miura Decl. ¶ 7, at 3. Miura contends that if the Court vacates the BLM's approvals of APDs, then she "would be able to continue to visit this area and feel much better about the air quality and the preservation of the archeology." Miura Decl. ¶ 8, at 3.
Gina Trujillo represents that she is the Director of Membership for the Natural Resources Defense Council. See Declaration of Gina Trujillo ¶ 1, at 1 (dated April 30, 2017), filed April 28, 2017 (Doc. 112-5)("Trujillo Decl."). Trujillo asserts that the Natural Resources Defense Council's mission is "to safeguard the Earth; its people, its plants and animals, and the natural systems on which all life depends." Trujillo Decl. ¶ 6, at 2. Trujillo states that protecting Chaco Park and the Chaco Canyon area from damaging oil-and-gas operations "is paradigmatic" of the organization's efforts "to defend endangered wild places and natural habitats." Trujillo Decl. ¶ 7, at 2.
Kendra Pinto represents that she is a member of the Navajo Nation and of Diné CARE. See Declaration of Kendra Pinto ¶ 1, at 1 (executed July 26, 2017), filed July 28, 2017 (Doc. 117-2)("Pinto Decl."). Pinto states that she lives in Twin Pines, New Mexico, which is located on Highway 550 at the San Juan County line. See Pinto Decl. ¶ 1, at 1. Pinto states that, since the "start of oil exploration in the Mancos Shale Formation, [she has] seen an increase in truck traffic, public safety risks, violent crimes, and drug use." Pinto Decl. ¶ 5, at 2 (alteration added). She adds that she has "noticed headaches, blurry vision, occasional stomach issues, fatigue, and allergies." Pinto Decl. ¶ 5, at 2. She states that she often sees "fracking truck traffic" on the highway, which "contributes to the fear of safety." Pinto Decl. ¶ 8, at 2. Pinto states that she has had "numerous encounters with this truck traffic" and was "almost rear ended by a truck carrying liquid nitrogen." Pinto Decl. ¶ 9, at 3. According to Pinto, "there is always a danger" where she lives. Pinto Decl. ¶ 9, at 3. Pinto states that she has been to areas that are "very potent in natural gas odors," and has seen "the giant pillars of fire" from flaring, which are "scary, loud, and excessive." Pinto Decl. ¶ 10, at 3. Pinto states that "there is no escaping the gases, traffic, noise pollution, and sound pollution." Pinto Decl. ¶ 10, at 3. Pinto states that she regularly visits Chaco Park and enjoys observing the dark sky from there, but "the lights staged at well sites can be as bright as stadium lights." Pinto Decl. ¶ 11, at 3. Pinto states that she has also dealt with these bright lights being pointed at the highway, prohibiting her from seeing the road. See Pinto Decl. ¶ 11, at 3.
b. The Defendants.
Defendant Ryan Zinke is the Secretary of the United States Department of the Interior. See Diné Brief at 12 n.1. Defendant Michael Nedd is the Acting Director of the BLM. See Diné Brief at 12 n.1.9 The BLM is an agency within the United States Department of the Interior that is *1048responsible for managing public lands and resources in New Mexico, including federal onshore oil-and-gas resources. See
Intervenor-Defendant American Petroleum Institute ("the API") is the primary national trade association of the oil-and-gas industry, representing more than 625 companies involved in all aspects of that industry, including some that drill in the Mancos Shale. See Dine,
2. Oil-and-Gas Development in the San Juan Basin.
The San Juan Basin in northwestern New Mexico is one of the largest oil-and-gas fields in the United States and has been producing for over fifty years. See Farmington Proposed Resource Management Plan and Final Environmental Impact Statement at 1 (dated September, 2003)(A.R.0001945)("PRMP"). "Approximately 23,000 wells are currently producing." Finding of No Significant Impact WPX Energy Production, LLC's West Lybrook UT Nos. 701H, 702H, 703H, 704H, 743H and 744H at 2 (undated)(A.R.0232032)("FONSI").
Since fracking was introduced in 1949, "nearly every well in the San Juan Basin has been fracture stimulated." FONSI at 2 (A.R.0232032). Fracking is the process of "injecting fracturing fluids into the target formation at a force exceeding the parting pressure of the rock, thus inducing fractures through which oil or natural gas can flow to the wellbore."10 Hydraulic Fracturing White Paper at 6 (dated October 1, 2014)(A.R.0149866)("White Paper"). Fracking and horizontal drilling are commonly used to access the Mancos Shale. See Unconventional Gas Reservoirs, Hydraulic Fracturing and the Mancos Shale at 7-8 (undated)(A.R.0155551-52)("Hydraulic Fracturing"). Horizontal drilling refers to a technique in which the wellbore is drilled down to the target formation, and then turns horizontally so that the well encounters as much of the reservoir as possible. See Hydraulic Fracturing at 6 (A.R.0155550).
"Vertical drilling places a well pad directly above the bottom hole, while directional and horizontal drilling allows for flexibility in the placement of the well pad and associated surface facilities." Environmental Assessment DOI-BLM-NM F010-2016-0204/IT4RM-FO10-2016-0081 at 16 (dated April, 2016)(A.R.0236483)("2016 EA"). "Directional or horizontal drilling often allows for 'twinning,' or drilling two or more wells from one shared well pad." 2016 EA at 16 (A.R.0236483). "Generally, the use of this technology is applied when it is necessary to avoid or minimize impacts to surface resources." 2016 EA at 16 (A.R.0236483). Indeed, one objective of horizontal drilling is to avoid surface occupancy "due to topographic or environmental concerns." Oil and Gas Resource Development for San Juan Basin, New Mexico a 20-year Reasonable Foreseeable Development Scenario Supporting the Resource Management Plan for the Farmington Field Office, Bureau of Land Management *1049at 8.1 (dated July 2, 2001)(A.R.0000111)("RFDS"). San Juan Alliance once stated that "[a]lternative drilling methods such as horizontal drilling would, if used in the San Juan basin, reduce adverse impacts such as noise, air pollution, and scarred landscapes from wells and roads. Why can't several wells be drilled from one location? The BLM must consider/require feasible technical alternatives such as horizontal drilling." Appendix P-Public Comments and Responses Farmington Proposed RMP/Final EIS at P-123 (dated 2002)(A.R.0001847)("San Juan Comment").
The area in which the BLM has approved the Mancos Shale APDs already contains hundreds of existing wells. See Reasonable Foreseeable Development for Northern New Mexico Final Report at 19 (dated October, 2014)(A.R.0173844)("2014 RFDS"). Further, many proposed Mancos Shale wells use existing oil-and-gas infrastructure. See Environmental Assessment DOI-BLM-NM-F010-2015-0036 at 1 (dated November, 2014)(A.R.0140148)("2014 EA").
3. The BLM's Oil-and-Gas Planning and Management Framework.
The BLM manages onshore oil-and-gas leasing and development via a three-phase process. The first phase involves preparing a Resource Management Plan ("RMP") and an Environmental Impact Statement ("EIS").
The EIS is the comprehensive, gold-standard document: it is subject to notice-and-comment provisions; "[i]t shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment"; and it "is more than a disclosure document," but rather, "[i]t shall be used by Federal officials in conjunction with other relevant material to plan actions and make decisions."
Dine,
In the second phase, the BLM sells and executes oil-and-gas leases. See
4. The Timeline of Events Giving Rise to this Case.
In 2001, the BLM issued a Reasonably Foreseeable Development Scenario ("RFDS") as part of the process of revising its Resource Management Plan for the San Juan Basin. See RFDS at 1 (A.R.0000001). This document's purpose was to forecast the scope of oil-and-gas development in the San Juan Basin over the next twenty years, from approximately 2002 to 2022. See RFDS at vi (A.R.0000006).
*1050The RFDS focuses on the New Mexico portion of the San Juan Basin "to determine the subsurface development supported by geological and engineering evidence, and to further estimate the associated surface impact of this development." RFDS at 6 (A.R.0000006). The RFDS discusses the Mancos Shale, and states that "most existing Manco Shale ... reservoirs are approaching depletion and are marginally economic. Most are not currently considered candidates for increased density development or further enhanced oil recovery operations." RFDS at 5.24 (A.R.0000081). It notes, however, that "there is considerable interest in developing the Mancos Shale as a gas reservoir over a large part of the basin where it has not been previously developed." RFDS at 5.23 (A.R.0000080).
In 2003, the BLM issued its Resource Management Plan/Environmental Impact Statement. See Farmington Resource Management Plan with Record of Decision at 1 (dated December 2003)(A.R.0001931)("RMP/EIS"). The RMP/EIS provided for the development of 9,942 new oil-and-gas wells. See RMP/EIS at 2, 10 (A.R.0001946, A.R.0001954). Since the RMP/EIS was issued, "3,945 wells have been drilled in the planning area, or about 39 percent of the 9,942 wells predicted and analyzed in the RMP/EIS." Federal Defendant's Opposition to Plaintiff's Opening Merits Brief at 10-11, filed June 9, 2017 (Doc. 113)("BLM Response")(citing Declaration of David J. Mankiewicz ¶ 3, at 3, filed June 9, 2017 (Doc. 113-2)("Mankiewicz Decl.") ). The RMP/EIS addresses only the "cumulative impacts of the potential development of 9,942 new oil and gas wells," and "does not approve any individual wells. Each well will require a site-specific analysis and approval before permitting." RMP/EIS at 3 (A.R.0001947). See Dine,
The Plaintiffs challenge over 300 APDs that the BLM approved seeking to drill wells into the Mancos Shale. See Third Supplemented Petition for Review of Agency Action ¶ 1, at 1, filed September 9, 2016 (Doc. 98)("Complaint"). For each APD, the BLM issued an EA. See, e.g., 2014 EA at 1 (A.R.0140148). These EAs are "tiered" to the 2003 RMP/EIS, meaning that they incorporate the EIS by reference.
Generally, an EA concisely analyzes the possible environmental impacts of a proposed action and weighs available alternatives. See
In 2014, the BLM decided to prepare an amendment to its 2003 RMP/EIS, because "improvements and innovations in horizontal drilling technology and multi-stage hydraulic fracturing have enhanced the economics of developing" the Mancos Shale. Notice of Intent to Prepare a Resource Management Plan Amendment and an Associated Environmental Impact Statement for the Farmington Field Office, New Mexico,
5. The BLM and the NHPA.
Section 106 of the NHPA requires federal agencies conducting an "undertaking" to "take into account the effect of the undertaking on any historic property."
PROCEDURAL BACKGROUND
The Plaintiffs filed their petition in this case on March 11, 2015. See Petition for Review of Agency Action, at 1, filed March 11, 2015 (Doc. 1)("Petition"). After amending their petition twice, they assert five claims: (i) the BLM violated NEPA by failing to analyze direct, indirect, and cumulative effects of Mancos Shale fracking; (ii) the BLM violated NEPA by not preparing an EIS on fracking the Mancos Shale; (iii) the BLM violated NEPA by taking action during the NEPA process; (iv) the BLM violated NEPA, because it did not involve the public in drafting the EAs; and (v) the BLM violated the NHPA, because it did not consider the indirect and cumulative effects on Chaco Park and its satellites and did not consult with the New Mexico State Historic Preservation Officer ("SHPO"), Indian tribes, or the public vis-à-vis the effects the wells could have on Chaco Park and its satellites. See Complaint *1052¶¶ 127-65, at 36-43. The Plaintiffs subsequently filed a motion for a preliminary injunction, arguing broadly on the merits that the BLM violated NEPA for not analyzing the impacts of horizontal drilling and fracking. See Plaintiffs' Motion for Preliminary Injunction at 1, filed May 11, 2015 (Doc. 16); Plaintiff's Memorandum in Support of Motion for Preliminary Injunction at 19-21, filed May 11, 2015 (Doc. 16-1). The Court denied the preliminary injunction. See Diné,
The Court acknowledged that, although more environmentally friendly than vertical drilling, horizontal drilling was also more profitable and, thus, could lead to a "quasi-Jevons Paradox"12 where the operators' increased incentive to drill would lead to more horizontal drills, and thus increase, overall, environmental harm. Diné,
The Court also considered whether fracking combined with horizontal drilling produced a new kind of environmental impact that vertical drilling combined with fracking did not produce, and, thus, whether an EIS was needed for that harm. See Diné,
The Plaintiffs appealed the Court's determination to the United States Court of Appeals for the Tenth Circuit. See Plaintiffs' Notice of Appeal at 1, filed August 18, 2015 (Doc. 64). The Tenth Circuit affirmed the Court's order denying the Plaintiffs request for a preliminary injunction and agreed with the Court's determination that there was not a substantial likelihood of success on the merits. See Diné Citizens Against Ruining Our Environment v. Jewell,
First, these technologies allow operators to extract significant amounts of oil from the Mancos Shale, while the RMP mainly anticipated the extraction of gas from other formations in a different region of the San Juan Basin. Second, horizontal drilling and multi-stage fracturing involve a number of complexities not associated with conventional wells that could result in additional environmental impacts that were not anticipated or analyzed when the agency analyzed the impacts of conventional drilling methods in the 2003 [RMP].
Diné II,
1. The Diné Brief.
The Plaintiffs begin by arguing that they have standing to bring this action. See Diné Brief at 8-10. According to the Plaintiffs, they have alleged an injury, because "they use the affected area and are persons 'for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.' " Diné Brief at 9 (citing Friends of the Earth Inc. v. Laidlaw Environmental Services (TOC), Inc.,
The Plaintiffs also argue that the BLM violated NEPA, because it failed to "take a hard look" at the potential environmental consequences resulting from authorizing the Mancos Shale drilling. Diné Brief at 12 (emphasis omitted). Specifically, they contend that the 2003 RMP/EIS, which authorized 9,942 wells, did not analyze the effects of drilling in the Mancos Shale, as it was thought not to be an economical option in 2003. See Diné Brief at 13. The Plaintiffs add that, once fracking technology made the Mancos Shale well development an economically feasible option, the BLM needed to take a hard look at the additional environmental impact that 3,960 new wells in the Mancos Shale would have on the region. See Diné Brief at 13-14. According to the Plaintiffs, the BLM cannot rely on the 2003 RMP/EIS, because "[t]he 2003 RMP/EIS does not offer any analysis for the landscape-level impacts from drilling at this new scale, and therefore cannot be used as an underlying basis for analyzing Mancos Shale EAs and approving APDs." Diné Brief at 14.
The Plaintiffs argue that the Court and the Tenth Circuit erred when denying a preliminary injunction on the grounds that a new EIS is needed only "when the quantum of environmental impact exceeds that which the operative EIS anticipated," and that no new statement was needed, because the "Mancos Shell development had not yet exceeded the foreseeable impacts from 9,942 wells." Diné Brief at 15. According to the Plaintiffs, the Court and the Tenth Circuit erred, because the relevant regulations require the agency to consider *1055"the impacts from foreseeable development" and not just the impacts from past development. Diné Brief at 15-16 (citing
The Plaintiffs also contend that the BLM violated NEPA when all of the EAs for the Mancos Shale wells "tiered" to the 2003 RMP/EIS. Diné Brief at 18-21. According to the Plaintiffs, tiering is only allowed when the "project being considered is part of the broader agency action addressed in the earlier NEPA document." Diné Brief at 18. The Plaintiffs argue that, because the 2003 RMP/EIS did not consider at length horizontal drilling's or fracking's effects on the environment, tiering was inappropriate and violated NEPA. See Diné Brief at 21.
The Plaintiffs contend that the BLM also violated NEPA, because it did not analyze the cumulative environmental and human health impacts resulting from horizontal drilling and fracking. See Diné Brief at 21-25. The Plaintiffs assert that the BLM's analysis needed to include an examination of the past, present, and future wells, but it did not. See Diné Brief at 22-23. They add that BLM failed specifically to consider "GHG emissions" in the 2003 RMP/EIS. Diné Brief at 24.
The Plaintiffs also argue that the BLM violated NEPA, because it failed to prepare an EIS for the 3,960 Mancos Shale wells. See Diné Brief at 27 ("BLM cannot continue to issue individual drilling approvals absent completion of an EIS."). They assert that the BLM has failed to issue a "convincing statement of reasons" for why the wells "will impact the environment no more than insignificantly," so an EIS is necessary. See Diné Brief at 27. Thus, according to the Plaintiffs, because none has been issued, the BLM has violated NEPA. See Diné Brief at 27-28.
The Plaintiffs add that the BLM violated NEPA, because it failed to satisfy that statute's "public notice and participation requirements." Diné Brief at 29. The Plaintiffs contend that, because BLM approved 362 Mancos Shale wells and 122 APDs without public involvement and by labeling them "routine projects," the BLM did not follow NEPA's command. Diné Brief at 29. The Plaintiffs contend that the BLM had notice as early as August 2012 that the public was interested in the Mancos Shale wells, but, according to the Plaintiffs, the BLM's only outward facing action was to make public its "decision documents" in 2015 several months or years after it had issued APD approvals. Diné Brief at 29-31 (citing
The Plaintiffs next argue that the BLM violated NHPA. See Diné Brief at 32-41. They contend that oil-and-gas development adversely affects Chaco Park, which is on the National Register of Historic Places. See Diné Brief at 34-35. The Plaintiffs assert that, despite the development's impact on those locations, the BLM did not conduct a "landscape-level" analysis, so the BLM's approval of APDs violates section 106 of NHPA. See Diné Brief at 35-36.
*1056The Plaintiffs argue that, although the BLM can satisfy NHPA section 106 without conducting a landscape level analysis if it establishes a program alternative, the BLM has not complied with the 2004 or 2014 Protocols, which the BLM entered into as a program alternative to satisfy NHPA. See Diné Brief at 36. The Plaintiffs aver that the BLM has not satisfied the 2014 Protocol, because it requires the BLM to analyze "Mancos Shale development's indirect and cumulative effects" on Chaco Park and its satellite sites, but, according to the Plaintiffs, the BLM has analyzed only the "direct impacts to archaeological sites." Diné Brief at 36. The Plaintiffs add that the BLM's failure to consider all of the development's indirect impacts to the sites "flows from the agency's arbitrary" definition of the Area of Potential Effect ("APE"). Diné Brief at 37. See
Finally, the Plaintiffs argue that NHPA's regulations require the BLM to consider "reasonably foreseeable effects" of development, which BLM failed to consider. See Diné Brief at 40 (citing
2. The BLM's Response.
The BLM responds that: (i) the Plaintiffs do not have standing; (ii) some of the Plaintiffs' challenges fail as they do not attack final agency action; (iii) some of the Plaintiffs' challenges fail as moot; and (iv) the BLM has not violated NEPA nor NHPA. See BLM Response at 1-44. First, the BLM asserts that the Plaintiffs do not have standing to challenge the APDs. See BLM Response at 8-13. BLM contends that the Plaintiffs have not alleged an injury-in-fact, because there is an insufficient geographical nexus between the Plaintiffs' purported harms and the well developments. See BLM Response at 9-11. There is no geographic nexus, according to the BLM, between the wells and the Plaintiffs, because the Plaintiffs "all state vaguely that they visit an undefined Chaco Region or greater Chaco area," which, according to the BLM, is too undefined a declaration to meet the injury-in-fact requirement. BLM Response at 10-11. It adds that the only specific locations that the Plaintiffs identify are "at least eight miles away" from the challenged wells, so they are not geographically close enough to establish an injury. See BLM Response at 11.
The BLM also argues that the Plaintiffs have failed standing's traceability and redressability prongs. See BLM Response at 12-13. The BLM argues that the Plaintiffs fail the traceability requirement, because the Plaintiffs have not tied their injuries to the 382 specific wells at issue. See BLM Response at 12. Instead, according to the BLM, the Plaintiffs tie their injuries generally to "oil and gas development," which, again according to the BLM, is too vague to meet the standing requirement, because there are 23,000 active wells in the area. BLM Response at 12-13.
*1057Next, the BLM argues that Plaintiffs' arguments challenging future APD approvals fail, because these approvals do not challenge final agency action. See BLM Response at 13. The BLM argues that the Court has jurisdiction, under the APA, to review only "final agency actions." BLM Response at 14 (citing
The BLM also argues that it complied with NEPA. See BLM Response at 16-36. First, it contends that the BLM took a hard look at the impacts of the challenged wells. See BLM Response at 16. The BLM argues that the Plaintiffs have not presented new evidence since the preliminary injunction stage. See BLM Response at 16. Thus, according to the BLM, "the Court's original analysis continues to apply." BLM Response at 16. It argues that, because the additional Mancos Shale wells will not exceed the impacts accounted for in the 2003 RMP/EIS, the BLM has not violated NEPA. See BLM Response at 16. According to the BLM, the 2003 RMP/EIS accounted for 5,997 wells in the San Juan Basin. See BLM Response at 17. The BLM asserts that, from those 5,997 wells projected, it follows that the 3,960 predicted wells either drilled or to be drilled falls within the original prediction, so the 2003 RMP/EIS remains valid and the BLM can rely upon it. See BLM Response at 17.
The BLM contends that the Plaintiffs' argument, which asserts that the BLM did not consider the foreseeable effect of the 3,960 wells, is incorrect. See BLM Response at 17. It argues that the record demonstrates that the 2001 RFDS concluded that the Mancos Shale "may have significant potential as a shale gas candidate," and that there may be reservoir zones in the Mancos shale not yet recognized. BLM Response at 17. According to the BLM, the RFDS also recognized the potential for horizontal drilling and fracking in the Mancos Shale. See BLM Response at 17-18. The BLM asserts, moreover, that the 2003 RMP/EIS "noted that the Mancos Shale was a source of both oil and gas." BLM Response at 18. The BLM concedes that the 2003 RMP/EIS did not consider developing the Mancos Shale specifically, but the BLM notes that analyzing the Mancos Shale was not the RMP/EIS' goal. See BLM Response at 18. Rather, according to the BLM, the 2003 RMP/EIS' goal is to analyze the "impacts of all foreseeable oil and gas development on federal lands in the San Juan Basin, regardless of geological formations targeted or technologies used." BLM Response at 18. The BLM also argues that the 2003 RMP/EIS anticipated fracking and "directional drilling," in addition to "other innovative drilling techniques." BLM Response at 18. According to the BLM, "[t]he RMP/EIS did not exclude horizontal drilling and multistage fracking from its analysis because both were widely used in similar formations elsewhere in the United States by 2003, and foreseeable in the Mancos Shale as soon as the market made them economically feasible." BLM Response at 19.
The BLM next contends that tiering to the RMP/EIS is appropriate, because the 2003 EMP/EIS considered fracking and horizontal drilling. See BLM Response at 21. It adds, however, that, even if the 2003 RMP/EIS did not consider fracking and horizontal drilling, tiering is still appropriate, because the 2003 RMP/EIS' analysis *1058of vertical drilling would not be qualitatively different from horizontal drilling and fracking. See BLM Response at 21. According to the BLM, because horizontal drilling and fracking "result in the same types of impacts as other type of oil and gas development," including vertical drilling, tiering to the 2003 RMP/EIS, which considered the effects of vertical drilling, remains appropriate. See BLM Response at 21. The BLM argues that the Plaintiffs present no admissible evidence that horizontal drilling and fracking are so different from vertical drilling that tiering is inappropriate. See BLM Response at 22. It also argues that there is no record evidence that horizontal drilling causes so much more harm than vertical drilling that impacts from horizontal drilling exceed the impacts of the 9,942 wells analyzed in the 2003 RMP/EIS. See BLM Response at 23.
The BLM also argues that that the 2003 RMP/EIS considered the cumulative impacts of the 3,960 Mancos Shale wells, including the region's past, present, and reasonably foreseeable future oil and gas development. See BLM Response at 24-25. The BLM adds that its EAs effectively supplement the 2003 RMP/EIS' analysis of fracking and horizontal drilling. See BLM Response at 25. It also argues that the EAs "explain that fracking in the Mancos Shale is not anticipated to impact groundwater," because the Mancos Shale is separate from the relevant aquifers. BLM Response at 25. The BLM asserts that, contrary to the Plaintiffs' arguments, the 2003 RMP/EIS took a "hard look" at the cumulative impact the wells would have on climate change, because the RMP/EIS estimated the wells' greenhouse gas emissions. See BLM Response at 27.
Next, the BLM asserts that it complied with NEPA's public involvement requirements. See BLM Response at 31. According to the BLM, it satisfied those requirements by: (i) maintaining and updating a NEPA log on its website; (ii) posting notices for proposed wells in a public reading room; and (iii) hosting public meetings at the site of each proposed well. See BLM Response at 31. The BLM contends that it did not need to solicit additional public comment about the Mancos Shale horizontal drilling and fracking, because fracking and horizontal drilling is "routine in the San Juan Basin." BLM Response at 32. The BLM also argues that it is only required to notify the public of final EA and FONSIs. See BLM Response at 31. It contends that it satisfied those specific requirements, because, once it issued an APD decision, the BLM marked the APD as approved on the online NEPA log, and it placed final EAs, FONSIs and decision records in its public reading room and on its website. See BLM Response at 32-33. The BLM also contends that, while there was "some delay" in posting "certain EAs and FONSIs in the reading room and online," NEPA does not have a notice deadline. See BLM Response at 33. The BLM adds that, even if it failed to give the requisite notice, such an error is harmless, because there has been no evidence of prejudice to the Plaintiffs. See BLM Response at 34. According to the BLM, the error is also harmless, because the Plaintiffs and BLM worked to rectify posting process errors together and the BLM provided the Plaintiffs relevant documents. See BLM Response at 35.
Finally, the BLM argues that it complied with the NHPA. See BLM Response at 36. The BLM argues that it complied with the NHPA "by defining the APE for each challenged APD based on the location of the proposed well and the types of known and suspected historic properties in the area, and assessing the adverse effects to historic properties both within and without the APE." BLM Response at 37. It also argues that the NHPA does not require the BLM to issue a separate APE
*1059analysis for direct and indirect effects. See BLM Response at 38 (citing
3. The Operators' Response.
The Operators also filed a response. See Operators' Response Brief, filed June 23, 2017 (Doc. 114)("Operators' Response"). According to the Operators' the main issue is not whether "newer and more complex technologies are being used to drill Mancos Shale wells," but, instead "whether the environmental impacts of those methods were adequately considered in the project specific EAs, or the programmatic RMP/EIS to which the EAs were tiered." Operators' Response at 9. The Operators contend that the BLM complied with NEPA, because "the impacts of the approved wells fell within the scope of the 9,942 wells studied in 2003." Operators' Response at 8-9. Although the Operators concede that any one horizontal drill may have more impact than a single vertical well, as a horizontal well requires a larger well pad and longer drilling times, see Operators' Response at 6, they argue that horizontal drilling "decreases " the overall impact compared to vertical drilling, because "fewer wells are needed to develop the resource," Operators Response at 6-7 (emphasis in original). They also argue that the 2003 RMP/EIS accounted for the impacts of horizontal drilling, so, according to the Operators, there is no NEPA violation. See Operators Response at 9.
The Operators also argue that the tiered 2014 EAs properly updated the 2003 RMP/EIS analysis. See Operators' Response at 11. In support of that contention, they note that the EAs since 2014 incorporate by reference "detailed cumulative air impact analysis" from the BLM's 2014 Air Resources Technical Report ("ARTR"), which describes "the air quality impacts of 21,150 existing oil and gas wells in the Basin, ... future oil and gas drilling (including in the Mancos Shale), as well as impacts of other greenhouse gas sources." Operators' Response at 11-12. According to the Operators, the 2014 ARTR accounted specifically for the Mancos Shale formation, so the BLM was justified in relying on that report. See Operators' Response at 12.
*1060The Operators echo the BLM's argument that the BLM does not need to analyze the 3,960 potential Mancos Shale wells as additional wells to the 9,942 wells analyzed in the 2003 RMP/EIS. See Operators' Response at 13-14. They also argue that, with regard to cumulative impact studies, NEPA does not require individual APDs to include such an expansive cumulative analysis. See Operators' Response at 14-15. The Operators add that the BLM was not required to halt its decision-making processes once it started the RMP amendment process, because to "hold otherwise would jeopardize or impair BLM's ability to manage the public lands, since it is often engaged in plan amendment or revision." Operators' Response at 17. The Operators also argue that the BLM adequately involved the public in its EA process for the same reasons that the BLM articulated. See Operators' Response at 18-20.
The Operators contend that the BLM complied with NHPA. See Operators' Response at 20. First, they contend that the NHPA does not protect the "Greater Chaco Landscape"-a 67,000 square-mile region-as the Plaintiffs assert, because the Greater Chaco landscape is not an historic property. See Operators' Response at 20-21. The Operators also argue that, even if the landscape did qualify as a historic property, "Diné fails to demonstrate how the landscape itself would be adversely affected in a way that would disqualify it from listing on the National register." Operators' Response at 22. The Operators' argue that the Mancos Shale wells will not contribute to changing the region to such a degree that it loses its historic status, because the Mancos Shale area has already been "subject to extensive oil and gas development under pre-existing oil and gas leases." See Operators' Brief at 22. They also argue that many of the landscape alterations Diné asserts-visual and noise effects associated with drilling and completion-are temporary in nature, so they "will not permanently alter the character of the landscape." Operators' Brief at 23.
The Operators contend that there was no NHPA violation, because the BLM properly followed the 2004 and 2014 Protocols. See Operators' Brief at 24. According to the Operators, the State Protocol requires the BLM to consult with the State Historic Preservation Office if and only if the APE is "not precisely defined by the State Protocol." Operators' Brief at 24. The Operators argue that the 2014 Protocol defines the APE as "the area of direct effect (as precisely defined for specified actions), and known historic properties indirectly affected in the vicinity, if BLM cultural resource specialists determine it is appropriate to the Area of Potential Effect." Operators' Brief at 24-25. The Operators argue that each proposed APD "applied the direct Area of Potential effect," and the BLM did not identify known historic properties outside the direct APE zone that might be indirectly affected, so, according to the Operators, the BLM complied with the 2004 and 2014 Protocols. Operators' Brief at 25. The Operators also argue that the BLM properly complied with section 106's requirement that it consult regarding the effects of oil and gas development, because the BLM affirmed seventy-nine specially designated areas, it recognized two sites as Areas of critical environmental concern, and oil and gas leasing was either eliminated in the seventy-nine sites or subjected to strict restrictions. See Operators' Brief at 25-26.
Finally, the Operators argue that, should the Court determine that the Plaintiffs prevail, remand is the appropriate remedy as opposed to an injunction or vacatur. See Operators' Brief at 26. They contend that any deficiencies in the well approvals are not serious enough for vacatur or an injunction, because the BLM has *1061employed "robust cumulative impact analyses" in its most recent RFDs, and "any NEPA errors that may have existed at one time have now been corrected." Operators' Brief at 27. Thus, according to the Operators, "if any NEPA or NHPA error exists, it can be addressed on remand without upsetting the APD approvals." Operators' Brief at 27. They add that any BLM error must be weighed against the harm to the Operators if APDs are vacated. See Operators' Brief at 28. The Operators argue that the harm they would suffer is dire, because their contractors and employees "rely on the continued viability of oil and gas development in northwestern New Mexico." Operators' Brief at 28. They conclude that remand is "the only appropriate remedy." Operators' Brief at 28.
4. API's Response.
The API responds and asserts many of the same arguments as the BLM and the Operators. See Intervenor-Defendant American Petroleum Institute's Opposition to Plaintiffs' Opening Merits Brief at 1-23, filed June 23, 2017 (Doc. 115)("API Response"). It emphasizes that the Court should deny the Plaintiffs' relief, because the Diné Brief largely reasserts arguments that the Court has already disposed of at the preliminary injunction stage. See API Response at 3-6 ("[T]he Plaintiffs continuously repeat-sometimes verbatim-evidence and argument from their preliminary injunction briefing before this Court and the Tenth Circuit."). The API contends that the only new arguments the Plaintiffs assert are that: (i) the BLM failed consider greenhouse emissions and climate change; (ii) the BLM failed to allow public comment; (iii) the BLM violated NHPA. See API Response at 7. Nevertheless, API considers the Plaintiffs' old NEPA arguments and contends that the Court must defer to the BLM's determinations. See API Response at 9-10. It also asserts that the BLM was not required to issue a new or supplemental EIS, because there was no new information compelling a conclusion that the new wells would have affected the environment in a significant manner which the 2003 RMP/EIS did not already address. See API Response at 10.
API also argues, as the Operators did, that the Plaintiffs have not established that the balance of equities favor an injunction or vacatur over remand should the Court determine that the BLM violated NEPA or NHPA. See API Response at 13. It contends that the Plaintiffs' purported environmental harms are not that significant, because the Plaintiffs have already experienced a great deal of oil and gas development, as the San Juan Basin has been subject to drilling for more than 60 years. See API Response at 15 ("Under these circumstances, the incremental environmental impacts of the additional challenged APDs are both relative limited in comparison to the oil and gas rigs seemingly all over the place before Plaintiffs ever filed this lawsuit."). API also contends that the Plaintiffs health and safety concerns are not enough to demonstrate irreparable harm, because extensive New Mexico regulations ensure that all wells are safe. See API Response at 16-17. API adds that the Plaintiffs' harms are outweighed by the public interest, because the enormous economic benefits of drilling have already been recognized. See API Brief at 18 (citing MOO at 98n.25,
*10625. The Plaintiffs' Reply.
The Plaintiffs reply that they have standing. See Plaintiffs' Reply at 1, filed July 28, 2017 (Doc. 117)("Reply"). They contend that to allege an injury-in-fact, they are not required to show that they have visited each well site; they argue that, instead, they need only allege that they have "traversed through or within view of parcels of land where oil and gas development will occur and plans to return." Reply at 2 (citing S. Utah Wilderness All. v. Palma,
The Plaintiffs reiterate that the BLM violated NEPA for not conducting an analysis on the 382 Mancos Shale wells before authorizing them. See Reply at 6. They argue again that the 2003 RMP/EIS never contemplated or analyzed the cumulative impacts form horizontal drilling and fracking, so the BLM cannot rely on that study and statement to contend that they adhered to NEPA. See Reply at 7. Thus, according to the Plaintiffs, the "BLM should have updated its cumulative impacts analysis," but the BLM failed to do so and thus violated NEPA. Reply at 7. The Plaintiffs also argue that, although fracking and horizontal drilling were widely used in 2003, that fact does not demonstrate that the 2003 RMP/EIS adequately considered those techniques. See Reply at 8-9. They also assert that the BLM violated NEPA, because the "record conclusively demonstrates that the RMP/EIS was focused only on the foreseeable impacts from 9,942 wells developed in economically feasibly gas-bearing formations at that time, not on the Mancos Shale." Reply at 9.
The Plaintiffs also argue that the cumulative impact of the 3,960 horizontal wells added to the wells already drilled exceeds the cumulative impact that the 2003 RMP/EIS analyzed. See Reply Brief at 11. They contend-with the tables reproduced below-that the surface impact, the water consumption, and the pollution levels all exceed what the 2003 RMP/EIS considered.
?
See Reply at 11-12 (footnotes omitted). The Plaintiffs add that site-specific EAs do not cure the deficiency, because the EAs conflate the direct and indirect impact analysis. See Reply at 12. The Plaintiffs also argue that the 2003 RMP/EIS did not consider climate change, so could not have accounted for the increased impact the horizontal drilling and fracking wells would have had on climate change. See Reply at 13.
The Plaintiffs contend that the Court owes the BLM no deference in the NEPA context. See Reply at 14 (citing Park County v. Dep't of Agric.,
The Plaintiffs reiterate that the BLM violated NHPA, because the BLM ignored indirect and cumulative affects to the characteristics of the historic property. See Reply at 17-18. They argue that even if the distance between Chaco Park and its satellites insulates them from the adverse noise and light pollution of the wells, the BLM still violated NHPA, because the BLM did not analyze what effect, if any, those pollutions would have on the sites. See Reply at 19. The Plaintiffs add that the BLM did not follow the 2014 Protocol, because, under the 2014 Protocol, the BLM is required to consider indirect effects, *1064which, according to the plaintiffs, the BLM did not consider. See Reply at 20-21. The Plaintiffs assert that the BLM did not meet its NHPA obligations when it spoke to the SHPO as part of the 2003 RMP/EIS, because the 2003 RMP/EIS did not discuss the impacts to landscape-level historic properties. See Reply at 21.
The Plaintiffs aver that their claims are not moot, even though 177 wells have already been drilled or abandoned, because the Plaintiffs' injuries are not confined to "the acts of drilling, and persist even once wells are complete." Reply at 22. They argue that an agency action is not moot if the violation of the applicable law "can be undone," even if doing so would be expensive or complex. Reply at 23. The Plaintiffs add that the Court has "broad discretion to order equitable relief short of" well removal, such as "mitigation measures and restrictions on well operations." Reply at 23. They also argue that the Court can still issue a declaratory judgment. See Reply at 23. They conclude that the BLM's actions are "capable of repetition but evading review." Reply at 23-24 ("If BLM's mootness argument for APDs with already-drilled wells prevails, nothing would prevent BLM from 'ignor[ing] the requirements of NEPA.' ")(citing Cantrell v. City of Long Beach,
The Plaintiffs also argue that they are entitled to the remedies which they seek, because the BLM's alleged NEPA violations are egregious. See Reply at 25 ("Here, vacatur is the only remedy that serves NEPA's fundamental purpose of requiring agencies to look before they leap.")(emphasis in original). The Plaintiffs argue that departing from the typical vacatur remedy is only appropriate in "unusual and limited circumstances." Reply at 25. They conclude that, if the Court determines that the Plaintiffs are correct on the merits, "they respectfully ask the court to bifurcate the remedy phase and allow for additional briefing, at which point they will satisfy the required elements for a permanent injunction." Reply at 26 (citing Monsanto v. Geertson Seed Farms,
LAW REGARDING STANDING
A federal court may hear cases only where the plaintiff has standing to sue. See Summers v. Earth Island Institute,
"Article III of the Constitution limits the jurisdiction of federal courts to Cases and Controversies." San Juan Cty., Utah v. United States,
"Standing is determined as of the time the action is brought." Smith v. U.S. Court of Appeals, for the Tenth Circuit,
was in no position to challenge the adequacy of state appellate review in cases culminating in unpublished opinions unless he could show that he would in fact receive such review from the state court of appeals (and from the state supreme court as well, if it took the case on certiorari).
By contrast, in Nova Health Sys. v. Gandy, the Tenth Circuit concluded that abortion providers had standing to challenge an Oklahoma parental-notification law on the grounds that they were in imminent danger of losing patients because of the new law. See
In construing the standing doctrine, the Court has determined that an attorney running for office as a Court of Appeals of New Mexico judge lacked standing when that attorney alleged that the New Mexico attorney disciplinary counsel harmed his chances of election when the counsel published a summary suspension petition about him. See League of United Latin American Citizens v. Ferrera,
LAW REGARDING MOOTNESS
Article III, Section 2 of the Constitution of the United States limits the federal courts' jurisdiction to actual cases and controversies. See U.S. Const. art. III § 2. "Federal courts are without authority to decide questions that cannot affect the rights of litigants in the case before them." Ford v. Sully,
"Before deciding that there is no jurisdiction, the district court must look at the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and the laws of the United States." Bell v. Hood,
The Tenth Circuit recognized a distinction between mootness and standing in Lucero v. Bureau of Collection Recovery, Inc.:
Like Article III standing, mootness is oft-cited as a constitutional limitation on federal court jurisdiction. E.g. , Building & Constr. Dep't v. Rockwell Int'l Corp. ,7 F.3d 1487 , 1491 (10th Cir. 1993) ("Constitutional mootness doctrine is grounded in the Article III requirement that federal courts only decide actual, ongoing cases or controversies."); see Matthew *1067I. Hall, The Partially Prudential Doctrine of Mootness ,77 Geo. Wash. L. Rev. 562 , 571 (2009) (citing footnote 3 in Liner v. Jafco, Inc. ,375 U.S. 301 [84 S.Ct. 391 ,11 L.Ed.2d 347 ] ... (1964), as the first occasion in which the Supreme Court expressly derived its lack of jurisdiction to review moot cases from Article III). But although issues of mootness often bear resemblance to issues of standing, their conceptual boundaries are not coterminous. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. ,528 U.S. 167 , 189-92[120 S.Ct. 693 ,145 L.Ed.2d 610 ] ... (2000). Indeed, the Supreme Court has historically recognized what are often called "exceptions" to the general rule against consideration of moot cases, as where a plaintiff's status is "capable of repetition yet evading review," S. Pac. Terminal Co. v. Interstate Commerce Comm'n ,219 U.S. 498 , 515[31 S.Ct. 279 ,55 L.Ed. 310 ] ... (1911), or where a defendant has ceased the challenged action but it is likely the defendant will "return to his old ways"-the latter often referred to as the voluntary cessation exception, United States v. W.T. Grant Co. ,345 U.S. 629 , 632[73 S.Ct. 894 ,97 L.Ed. 1303 ] ... (1953) ; see also , e.g. , City of Erie v. Pap's A.M. ,529 U.S. 277 [120 S.Ct. 1382 ,146 L.Ed.2d 265 ] ... (2000). These exceptions do not extend to the standing inquiry, demonstrating the contours of Article III as it distinctly pertains to mootness. Friends of the Earth, Inc. ,528 U.S. at 191, 120 [120 S.Ct. 693 ]....
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d at 1242-43.
A claim may become moot if "(i) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (ii) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Cty. of L.A. v. Davis,
The Court has concluded that a due process claim is not moot where the *1068plaintiff does not receive the precise remedy he has requested. See Salazar v. City of Albuquerque,
LAW REGARDING JUDICIAL REVIEW OF AGENCY ACTION
Under the APA,
[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, that any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
Under Olenhouse v. Commodity Credit Corp.,
1. Reviewing Agency Factual Determinations.
Under the APA, a reviewing court must accept an agency's factual determinations in informal proceedings unless they are "arbitrary [or] capricious,"
In reviewing agency action under the arbitrary-or-capricious standard, a court considers the administrative record-or at least those portions of the record that the parties provide-and not materials outside of the record. See
To fulfill its function under the APA, a reviewing court should engage in a "thorough, probing, in-depth review" of the record before it when determining whether an agency's decision survives arbitrary-or-capricious review. Wyoming v. United States,
In determining whether the agency acted in an arbitrary and capricious manner, we must ensure that the agency decision was based on a consideration of the relevant factors and examine whether there has been a clear error of judgment. We consider an agency decision arbitrary and capricious if the agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, 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.
Colo. Envtl. Coal. v. Dombeck,
2. Reviewing Agency Legal Interpretations.
In promulgating and enforcing regulations, agencies must interpret federal statutes, their own regulations, and the Constitution, and Courts reviewing those interpretations apply three different deference standards, depending on the law at issue. First, the federal judiciary accords considerable deference to an agency's interpretation of a statute that Congress has tasked it with enforcing. See United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug,
*1071Chevron deference is a two-step process15 that first asks whether the statutory provision in question is clear and, if it is not, then asks whether the agency's interpretation of the unclear statute is reasonable. As the Tenth Circuit has explained,
we must be guided by the directives regarding judicial review of administrative agency interpretations of their organic statutes laid down by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837 [104 S.Ct. 2778 ,81 L.Ed.2d 694 ] ... (1984). Those directives require that we first determine whether Congress has directly spoken to the precise question at issue. If the congressional intent is clear, we must give effect to that intent. If the statute is silent or ambiguous on that specific issue, we must determine whether the agency's answer is based on a permissible construction of the statute.
United States v. Undetermined Quantities of Bottles of an Article of Veterinary Drug,
Chevron's second step is all but toothless, because if the agency's decision makes it to step two, it is upheld almost without exception. See Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered,
Chevron's first step, in contrast, has bite, but there is substantial disagreement what it means. In an earlier case, the Court noted the varying approaches that different Supreme Court of the United States Justices have taken in applying Chevron deference:
The Court notices a parallel between the doctrine of constitutional avoidance and the Chevron doctrine. Those Justices, such as Justice Scalia, who are most loyal to the doctrines and the most likely to apply them, are also the most likely to keep the "steps" of the doctrines separate: first, determining whether the statute is ambiguous; and, only then, assessing the merits of various permissible interpretations from the first step. These Justices are also the most likely *1072to find that the statute is unambiguous, thus obviating the need to apply the second step of each doctrine. Those Justices more likely to find ambiguity in statutes are more likely to eschew applying the doctrines in the first place, out of their distaste for their second steps-showing heavy deference to agencies for Chevron doctrine, and upholding facially overbroad statutes, for constitutional avoidance.
Griffin v. Bryant,
Second, when agencies interpret their own regulations-to, for example, adjudicate whether a regulated party was in compliance with them-courts accord agencies what is known as Auer or Seminole Rock deference. See Auer v. Robbins,
For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of "defer[ring] to an agency's interpretation of its own regulations." Talk America, Inc. v. Michigan Bell Telephone Co., [564] U.S. [50],131 S.Ct. 2254 , 2265 [180 L.Ed.2d 96 ] ... (2011) (Scalia, J., concurring). This is generally called Seminole Rock or Auer deference.
....
The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rules unless that interpretation is "plainly erroneous or inconsistent with the regulation." But of course whenever the agency's interpretation of the regulation is different from the fairest reading, it is in that sense "inconsistent" with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. The agency's interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading-within the scope of the ambiguity that the regulation contains.
Our cases have not put forward a persuasive justification for Auer deference.
*1073The first case to apply it, Seminole Rock, offered no justification whatever-just the ipse dixit that "the administrative interpretation ... becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Our later cases provide two principal explanations, neither of which has much to be said for it. First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. The implied premise of this argument-that what we are looking for is the agency's intent in adopting the rule-is false. There is true of regulations what is true of statutes. As Justice Holmes put it: "[w]e do not inquire what the legislature meant; we ask only what the statute means." Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them.
The other rationale our cases provide is that the agency possesses special expertise in administering its " 'complex and highly technical regulatory program.' " That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations-unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its "special expertise" to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule-to "say what the law is." Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his "special expertise" to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the "special expertise" of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best.
Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers-that the power to write a law and the power to interpret it cannot rest in the same hands. "When the legislative and executive powers are united in the same person ... there can be no liberty; because apprehensions may arise, lest the same *1074monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, Spirit of the Laws bk. XI, at 151-152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its own power through Chevron -whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way-the competing political branch-is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important.
But when an agency interprets its own rules-that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. "It is perfectly understandable" for an agency to "issue vague regulations" if doing so will "maximiz[e] agency power." Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about "the construction of the Roman laws" by "stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it." 1 Wm. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has "agency in passing bad laws" might operate in the "same spirit" in their interpretation. The Federalist No. 81, at 543-544 (Alexander Hamilton)(J. Cooke ed. 1961). Auer deference encourages agencies to be "vague in framing regulations, with the plan of issuing 'interpretations' to create the intended new law without observance of notice and comment procedures." Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power.
It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency's view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron -type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement.
*1075In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.
Decker v. Nw. Envtl. Def. Ctr.,
Last, courts afford agencies no deference in interpreting the Constitution. See U.S. West, Inc. v. FCC,
3. Waiving Sovereign Immunity.
The APA waives sovereign immunity with respect to non-monetary claims. See
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States:
The APA's sovereign immunity waiver for claims "seeking relief other than money damages" does not apply, however, "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought."
LAW REGARDING PERMANENT INJUNCTION
To attain a permanent injunction, a plaintiff must demonstrate:
(i) that it has suffered an irreparable injury; (ii) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (iii) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (iv) that the public interest would not be disserved by a permanent injunction.
eBay, Inc. v. MercExchange, LLC,
"A district court may find irreparable harm 'based upon evidence suggesting that it is impossible to precisely calculate the amount of damage plaintiff will suffer.' " Southwest Stainless, LP v. Sappington,
Injunctive relief requested is subject to Article III mootness. See WildEarth Guardians v. Public Service Co. of Colorado,
Like Article III standing, mootness is oft-cited as a constitutional limitation on federal court jurisdiction. E.g. , Building & Constr. Dep't v. Rockwell Int'l Corp. ,7 F.3d 1487 , 1491 (10th Cir. 1993) ("Constitutional mootness doctrine is grounded in the Article III requirement that federal courts only decide actual, ongoing cases or controversies).... But although issues of mootness often bear resemblance to issues of standing, their conceptual boundaries are not coterminous.... [T]he Supreme Court has historically recognized what are often called 'exceptions' to the general rule against consideration of moot cases, as where a plaintiff's status is 'capable of repetition yet evading review,' S. Pac. Terminal Co. v. Interstate Commerce Comm'n ,219 U.S. 498 ,31 S.Ct. 279 ,55 L.Ed. 310 (1911), or where a defendant has ceased the challenged action but it is likely the defendant will 'return to his old ways'-the latter often referred to as the voluntary cessation exception, United States v. W.T. Grant Co. ,345 U.S. 629 , 632,73 S.Ct. 894 ,97 L.Ed. 1303 (1953).
Lucero v. Bureau of Collection Recovery, Inc.,
As already noted, mootness is subject to the voluntary-cessation exception. See Brown v. Buhman,
LAW REGARDING NEPA
NEPA requires federal agencies to
include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Regulations provide guidance on NEPA's implementation. See
Second, if an agency is unsure whether an EIS is required for a proposed action, i.e., whether the action qualifies as a "major Federal action[ ] significantly affecting the quality of the human environment,"
Third, an agency can determine that an EIS is not required without needing to prepare an EA when the proposed action falls within a categorical exclusion ("CE"). See
LAW REGARDING THE NHPA
The NHPA "requires each federal agency to take responsibility for the impact that its activities may have upon historic resources, and establishes the Advisory Council on Historic Preservation ... to administer the Act." Nat'l Mining Ass'n v. Fowler,
Under § 106 of the NHPA, the Secretary of the Interior must consult with the SHPO on "federal undertakings" that may affect historic properties. The Department of the Interior must identify the historic properties that the undertaking might affect, assess the property's historical significance, determine if there will be an adverse effect to the property, consider ways to reduce or avoid such effects, and provide an opportunity for the Advisory Council on Historic Preservation to review and comment on the undertaking. This process should include "background research, consultation, oral history interviews, sample field investigations, and field surveys."
An Indian Tribe may assume all or part of the SHPO's functions with regard to Tribal lands if, among other things, the Tribe designates a Tribal preservation official to administer the program. In such cases, the Tribal Historic Preservation Officer ("THPO") is the official representative for purposes of § 106 consultation.
ANALYSIS
The Court concludes that the Plaintiffs have standing, because they have shown an "alleged increased environmental risk" and an aesthetic injury, which are constitutionally cognizable injuries, Committee to Save the Rio Hondo v. Lucero,
The BLM did not violate NEPA, because the BLM appropriately analyzed the impacts of horizontal drilling and hydraulic fracturing, and "any difference in environmental impacts between the new technology and the technology that the 2003 RMP/EIS analyzed are insignificant," Dine,
I. THE PLAINTIFFS HAVE STANDING TO PURSUE THEIR NEPA AND NHPA CLAIMS.
The Court concludes that the Plaintiffs have standing to pursue both their NEPA and NHPA claims. The "irreducible constitutional minimum of standing contains three elements." Lujan,
The Tenth Circuit has held that, "under the National Environmental Policy Act, 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." Committee to Save the Rio Hondo v. Lucero,
Ultimately then, the injury in fact prong of the standing test of Article III breaks down into two parts: (1) the litigant must show that in making its decision without following the National Environmental Policy Act's Procedures, the agency created an increased risk of actual, threatened, or imminent environmental harm; and (2) the litigant must show that the increased risk of environmental harm injures its concrete interests by demonstrating either its geographical nexus to, or actual use of the site of the agency action.
Committee to Save the Rio Hondo v. Lucero,
Second, the injury must be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Lujan,
Third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan,
Here, the Plaintiffs have standing to pursue their NEPA claim. "[A]n association has standing to bring suit on behalf of its members when: (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. Washington State Apple Advertising Com'n,
Second, "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Com'n,
A. THE PLAINTIFFS HAVE SHOWN AN INJURY IN FACT.
First, the Plaintiffs have shown that, "in making its decision without following the National Environmental Policy Act's Procedures, the agency created an increased risk of actual, threatened, or imminent environmental harm." Committee to Save the Rio Hondo v. Lucero,
Nichols does not recall any oil and gas development in the area in 2008, but, by 2014, he asserts that, "there were rigs seemingly all over the place, around Nageezi and the road to [Chaco Park]." Nichols Decl. ¶ 7, at 6-7. According to Nichols, during his last visit, "there were extensive oil and gas well facilities and infrastructure in the area, particularly around Nageezi and Lybrook." Nichols Decl. ¶ 7, at 7. According to Nichols, this new oil-and-gas development "has detracted significantly from [his] enjoyment of the Greater Chaco area," and has "significantly eroded the natural and remote nature of the region." Nichols Decl. ¶ 8, at 7 (alteration added). According to Nichols, the oil-and-gas development has also created "smells, dust, and more industrialization," which is "aesthetically displeasing." Nichols Decl. ¶ 9, at 7.
According to Green, oil-and-gas development "in the Chaco Canyon area/region and [Chaco Park]" would harm Green's visitor experience, because of potential air, noise, and light pollution, large truck traffic, and the possibility of "soil and groundwater contamination due to drilling practices." Green Decl. ¶ 7, at 2-3. Green states that she also has "concerns" regarding the use of hydraulic fracturing "in the Chaco Canyon area/region and Chaco [Park]," because fracking may contaminate the area's groundwater. Green Decl. ¶ 8, at 3.
According to Miura, oil-and-gas development "in the Chaco Canyon area/region and [Chaco Park]" would "ruin the views and tranquility of the Chaco Canyon area." Miura Decl. ¶ 6, at 2. Pinto states that she regularly visits Chaco Park and enjoys observing the dark sky from there, but that "the lights staged at well sites can be as bright as stadium lights." Pinto Decl. ¶ 11, at 3. Pinto states that she has also dealt with these bright lights being pointed at the highway, prohibiting her from seeing the road. See Pinto Decl. ¶ 11, at 3.
These alleged injuries are ones of "alleged increased environmental risk" or aesthetic injury, which are both cognizable under Article III. Committee to Save the Rio Hondo v. Lucero,
*1084That oil-and-gas production has existed in the San Juan Basin for over fifty years and thousands of wells are currently producing there does not alter that result. See PRMP at 1 (A.R.0001945). Importantly, the Tenth Circuit's injury-in-fact test under NEPA requires showing an "increased risk of environmental harm." Committee to Save the Rio Hondo v. Lucero,
The Plaintiffs must also show that "the increased risk of environmental harm injures its concrete interests by demonstrating either its geographical nexus to, or actual use of the site of the agency action." Committee to Save the Rio Hondo v. Lucero,
Nichols visited Chaco Park in March, 2008, March, 2012, April, 2013, and May, 2015. See Nichols Decl. ¶ 5, at 4-5. Nichols intends to continue visiting "the Greater Chaco region, including [Chaco Park] and its outliers ... at least once a year for the foreseeable future." Nichols Decl. ¶ 6, at 6. He intends to visit "this area" again in June, 2017, when he has a trip planned. Nichols Decl. ¶ 6, at 6.
Green visits Chaco Park "at least once a year." Green Decl. ¶ 4, at 2. Green intends to return to Chaco Park "this fall"-referring to the fall of 2017-and "in the future." Green Decl. ¶ 6, at 2. Miura has visited Chaco Park, and plans to return there "next year, and in the future." Miura Decl. ¶ 5, at 2. Pinto regularly visits Chaco Park and enjoys observing the dark sky from there. See Pinto Decl. ¶ 11, at 3.
Given that the affiants visit Chaco Park and the Nageezi area, and at least several of them have plans to return, the question is whether Chaco Park and the Nageezi area have a geographical nexus to the agency action's site, i.e. the challenged APDs' well sites. See Committee to Save the Rio Hondo v. Lucero,
The Tenth Circuit has held that, when affiants lived twelve to fifteen miles downstream of the affected area, they had a geographical nexus to that area, because "the affiants live immediately downstream from and share the same watershed with the [affected area, and] they may be expected to suffer the effects of decreased water quality." Committee to Save the Rio Hondo v. Lucero,
*1085purposes. See Committee to Save the Rio Hondo v. Lucero,
B. THE PLAINTIFFS HAVE SHOWN CAUSATION.
The injury must be "fairly ... trace[able] to the challenged action of the defendant, and not ... the[e] result [of] the independent action of some third party not before the court." Lujan,
C. THE PLAINTIFFS HAVE SHOWN REDRESSABILITY.
To establish redressability, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan,
Here, the injury of an increased risk of environmental harm to Chaco Park and to the Nageezi area would likely be redressed if the Court rules that the BLM has not followed NEPA's procedures, because ordering "[c]ompliance with the National Environmental Policy Act would avert the possibility that the [BLM] may have overlooked significant environmental consequences of its action," that is, granting the APDs. Committee to Save the Rio Hondo v. Lucero,
The Supreme "Court's standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press." DaimlerChrysler Corp. v. Cuno,
II. THE PLAINTIFFS MAY CHALLENGE MOST, BUT NOT ALL, OF THE APDS UNDER THE APA.
"In addition to Article III standing requirements, a plaintiff seeking judicial review pursuant to the APA must (i) identify some final agency action and (ii) demonstrate that its claims fall within the zone of interests protected by the statute forming the basis of its claims." Catron Cty. Bd. of Com'rs, New Mexico v. U.S. Fish & Wildlife Serv.,
In order to determine if an agency action is final, we look to whether its impact is direct and immediate, whether the action mark[s] the consummation of the agency's decisionmaking process, and whether the action is one by which rights or obligations have been determined, or from which legal consequences will flow.
Colorado Farm Bureau Federation v. U.S. Forest Service,
First, the Plaintiffs' claims against all of the APDs fall within the zones of interest that NEPA and the NHPA protect. NEPA's purpose is to "declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere...."
The Plaintiffs have not, however, challenged final agency action with respect to every APD. The BLM has categorized the APDs in this case as follows: "Producing," meaning the well is currently producing; "Approved-Pending Drilling," meaning the BLM has approved the APD but the well has not yet been drilled, "Drilled but not Completed," meaning the well has been drilled but is not yet completed; "Drilled but Temp. Abandon," meaning the well has been drilled but has been temporarily abandoned; "Cancelled," meaning that the EA has been cancelled; "Abandoned," meaning the well has been permanently abandoned; "Shut-in," meaning the well has been shut-in; "Rescinded," meaning the BLM's decision approving the APD has been rescinded; "Withdrawn," meaning the operator has withdrawn the APD; "No APD package," meaning the operator has not submitted the APD package to the BLM; and "Unapproved APD," meaning "the APD package has been submitted to BLM but it has not been approved or denied." Declaration of Sarah Scott ¶ 8, at 4-5 (executed June 2, 2017), filed June 9, 2017 (Doc. 113-3)("Scott Decl."). The Court concludes that challenging an unapproved APD, a withdrawn APD, or an APD in which the operator has not submitted an APD package to the BLM is not challenging final agency action, because, in such instances, "the consummation of the agency's decisionmaking process" has not yet occurred, and no "rights or obligations have been determined." Colorado Farm Bureau Federation v. U.S. Forest Service,
Additionally, the "Plaintiffs have the burden of identifying specific federal conduct and explaining how it is final agency action within the meaning of [the APA]." Colorado Farm Bureau Federation v. U.S. Forest Service,
For these reasons, the Plaintiffs "lack the statutory standing required to bring this claim under the APA,"
*1088Colorado Farm Bureau Federation v. U.S. Forest Service,
III. THE PLAINTIFFS' APD CHALLENGES ARE NOT MOOT, EXCEPT AS TO PERMANENTLY ABANDONED WELLS.
The Court concludes that the Plaintiffs' APD challenges are not moot, except as to permanently abandoned wells. Article III, Section 2 of the Constitution limits the federal courts' jurisdiction to "cases" and "controversies." U.S. Const. art. III, § 2. "Federal courts are without authority to decide questions that cannot affect the rights of litigants in the case before them." Ford v. Sully,
An exception to the mootness doctrine is voluntary cessation. A "defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
In accordance with this principle, the standard we have announced for determining whether a case has been mooted *1089by the defendant's voluntary conduct is stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
The Court concludes that the Plaintiffs' challenges to APDs of permanently abandoned wells are moot. Challenges to wells currently producing, APDs that have been approved but drilling is pending, wells that have been drilled but not yet completed, wells that have been temporarily abandoned, and shut-in wells, however, are not moot. As explained above, the Plaintiffs' injury is "an injury of alleged increased environmental risks." Committee to Save the Rio Hondo v. Lucero,
Under the voluntary cessation doctrine, a challenge to a drilled but temporarily abandoned well is not moot, because temporary abandonment does not make it "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,
IV. THE BLM TOOK A HARD LOOK AT THE WELLS' EFFECTS, SO COMPLIED WITH NEPA.20
As the Court previously observed,
This case ultimately boils down to whether the BLM's FONSIs-which allowed it to rely on the site-specific EAs rather than commissioning an entirely new EIS-were arbitrary and capricious, or were the result of the BLM's failure to take a hard look at the environmental consequences of approving the challenged APDs.
Dine,
An environmental assessment prepared in support of an individual proposed action can be tiered to a programmatic or other broader-scope environmental impact statement. An environmental assessment may be prepared, and a finding of no significant impact reached, for a proposed action with significant effects, whether direct, indirect, or cumulative, if the environmental assessment is tiered to a broader environmental impact statement which fully analyzed those significant effects. Tiering to the programmatic or broader-scope environmental impact statement would allow the preparation of an environmental assessment and a finding of no significant impact for the individual proposed action, so long as any previously unanalyzed effects are not significant. A finding of no significant impact other than those already disclosed and analyzed in the environmental impact statement to which the environmental assessment is tiered may also be called a "finding of no new significant impact."
*1091
For this case's purposes, the Court must decide whether the EAs determined that new developments in horizontal drilling and fracking technology as used after the 2003 RMP/EIS was issued have no significant environmental effects, compared to the 2003 technology, which would enable the BLM to properly issue FONSIs, see
Other EAs explain that "horizontal drilling applications throughout the San Juan Basin have become relatively common. Generally, the use of this technology is applied when it is necessary to avoid or minimize impacts to surface resources." 2014 EA at 17 (A.R.0140164). See Environmental Assessment DOI-BLM-NM-F010-2015-0060, at 17 (dated January, 2015)(A.R.0141942)(same); Environmental Assessment DOI-BLM-NM-F010-2015-0066, at 20 (dated February, 2015)(A.R.0143938)(same). This result is because "horizontal drilling often allows for 'twinning,' or drilling two or more wells from one shared well pad." 2014 EA at 17 (A.R.0140164). Indeed, San Juan Alliance once stated that "[a]lternative drilling methods such as horizontal drilling would, if used in the San Juan basin, reduce adverse impacts such as noise, air pollution, and scarred landscapes from wells and roads. Why can't several wells be drilled from one location? The BLM must consider/require feasible technical alternatives *1092such as horizontal drilling." San Juan Comment at P-123 (A.R.0001847). Another EA says that estimated C02 emissions from a horizontal well would represent only a "0.0008 percent increase in New Mexico C02 emissions." Environmental Assessment DOI-BLM-NM-F010-2015-0045, at 22 (dated January, 2015)(A.R.0141356). On this record, the Court concludes that the BLM's EAs "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact,"
Further, as the Court has previously observed, fracking "has been around for a very long time." Dine,
Additionally, "as the district court pointed out, only 3,860 of the anticipated 9,942 new wells in the planning area were drilled in the twelve years between the issuance of the 2003 RMP and the court's consideration of this issue in 2015." Diné II,
As for the possibly increased air quality impacts, the agency considered these impacts in its environmental assessments and concluded that the approved drilling activities would not cause a significant increase in emissions over the amount anticipated in the RMP or a violation of national air quality standards for any criteria pollutant.
Diné II,
The Plaintiffs contend that the 2003 RMP/EIS "analyzed the environmental consequences of drilling a projected 9,942 wells." Diné Brief at 24. This analysis, however, "did not include the Mancos Shale," because "development of the Mancos Shale formation was not reasonably foreseeable at the time the 2003 RMP/EIS
*1093was prepared." Diné Brief at 24. With recent advances in horizontal drilling and fracking, however, developing the Mancos Shale became foreseeable. See Diné Brief at 24. According to the Plaintiffs, in light of these technological developments, the BLM "prepared the 2014 RFDS, which estimated the drilling of 3,960 Mancos Shale wells," which are "in addition to-not instead of-the 9,942 vertical wells previously projected by BLM in the 2003 RMP/EIS" Diné Brief at 24-25. The Plaintiffs therefore conclude that the "BLM has never analyzed the environmental and human health impacts from the combined total of 13,902 reasonably foreseeable oil and gas wells across the San Juan Basin." Diné Brief at 28.
First, as explained above, the Court continues to hold that any difference in environmental impacts between the new technology and the technology that the 2003 RMP/EIS analyzed are insignificant for NEPA's purposes. See San Juan Comment at P-123 (A.R.0001847)("Alternative drilling methods such as horizontal drilling would, if used in the San Juan basin, reduce adverse impacts such as noise, air pollution, and scarred landscapes from wells and roads."); White Paper at 16 (A.R.0149876)("The development of a hydrocarbon resource utilizing horizontal wells, drilled from multi-well pads, and stimulating by fracking minimizes the number of wells and surface disturbance needed to fully develop that resource, therefore minimizing biological impacts.").
Second, even though more drilling is occurring in the Mancos Shale than the 2003 RMP/EIS anticipated, the fact remains that "only 3,860 of the anticipated 9,942 new wells in the planning area were drilled in the twelve years between the issuance of the 2003 RMP and the court's consideration of this issue in 2015." Diné II,
The Plaintiffs raise, however, an argument that they did not raise previously before the Tenth Circuit. SeeDiné II,
The Plaintiffs' argument is even more fundamentally flawed, however, because in aggregating the surface impacts, they count impacts of all of the potential 3,960 horizontal wells. But the Plaintiffs do not and cannot challenge all of the 3,960 horizontal wells, because only 382 are at issue, and, as the Court has concluded, only 350 are live in this dispute. See Complaint ¶ 105, at 30; supra at 1088 n.17, 1090 n.19. The narrow question before the Court, therefore, is whether the 350 APDs violate NEPA, because their impacts exceed the 2003 EIS' projection. Using all 3,960 wells-3,578 of which are purely hypothetical-to determine the total impact erroneously swells the Plaintiffs' calculation. Using 350 as a multiplier, the surface impacts fall comfortably within the 2003 EIS projection: (7,890 + (5.2 x 350) ) = 9,710 acres21 , which is less than the 2003 EIS projection of 18,577 acres.22 The same analysis applies to the water consumption and air pollution numbers. Projected water consumption is: 1,475,407,500 gallons23 , which is less than the 2,818,557,000 gallon 2003 EIS projection. See Diné Reply at 11. The air pollution numbers are as follows:
[Editor's Note: The preceding image contains the references for footnotes24 ,25 ]
*1095Each combined number is far less than the numbers considered in the 2003 RMP/EIS. Accordingly, the total impacts of drilling in the basin still have not exceeded the total impacts predicted in the 2003 EIS, so there is no NEPA violation on these grounds. Because the differences in technology since the 2003 RMP/EIS are not significant for NEPA's purposes, and the total number of wells remain within the 2003 RMP/EIS estimate, the Court concludes that the Plaintiffs' argument is without merit.
V. THE BLM ADEQUATELY INVOLVED THE PUBLIC IN ITS NEPA PROCESS.
The BLM did not violate NEPA when it prepared and published EAs for the Mancos Shale wells. The Plaintiffs assert two arguments: (i) the BLM did not adequately involve the public during its EA process; and (ii) the BLM did not timely post its EAs in a public forum. The Court disagrees with both contentions.
"When preparing an EA, an 'agency shall involve ... the public ... to the extent practicable." WildEarth Guardians v. U.S. Fish and Wildlife Serv.,
Here, the BLM satisfied that minimal public notice requirement. Although it did not furnish EA drafts for public comment, the BLM provides a NEPA log on its website, which tracks each proposed well, its location coordinates, the county in which the well is located, the date the well was submitted for approval, the date-if any-the BLM approved the well, and contact information for the BLM employee responsible for that well. See, e.g., NEPA Log at 1-35 (A.R.0151320-54). See also BLM Response at 31 (citing NEPA Logs in the record at A.R.0150140-15180). Updates to the NEPA log are made weekly. See Letter from Victoria Barr, Bureau of Land Management District Manager, to Mike Eisenfeld at 2 (dated January 26, 2015)(A.R.0178210)("BLM Letter to Eisenfeld"). The BLM also hosts public meetings at each proposed well's site and sends notices of those meetings to parties via email. See Draft Letter from the Bureau of Land Management (unsigned) to Jeremy Nichols, WildEarth Guardians Climate and Energy Program Direct, Erik Schlenker-Goodrich, Western Environmental Law Center Environmental Director, Mike Eisenfeld, San Juan Citizens Alliance New Mexico Energy Coordinator, Anson Wright, Chaco Alliance Coordinator at 2 (undated)(A.R.0178704). See also BLM Response at 31.
The Court concludes that the BLM's NEPA logs and the public meetings about proposed wells gave sufficient notice, because both actions alert the public to the projects and the effects the projects might have on the environment. Although the NEPA logs do not explicitly state that oil-and-gas wells affect the air quality or the environment, see Diné Reply at 16, the BLM does not have to call a horse a horse to give the public adequate notice. In 2018, it is self-evident-especially to environmental non-profits, such as the Plaintiffs-that new oil-and-gas wells affect air quality and the environment. See Colorado Environmental Coalition v. Salazar,
Here, in addition to the self-evident proposition that oil-and-gas wells affect the environment, there is record evidence that the Plaintiffs had actual notice of the oil-and-gas wells' environmental effects without the benefit of EAs on every well and without an explicit statement from the BLM that oil-and-gas wells may cause environmental *1097effects. See Letter from Jeremy Nichols, WildEarth Guardians Climate and Energy Program Director, Mike Eisenfeld, San Juan Citizens Alliance New Mexico Energy Coordinator, Erik Schlenker-Goodrich, Western Environmental Law Center Executive Director, Anson Wright, Chaco Alliance Coordinator to Jesse Juen, Bureau of Land Management State Director, Gary Torres, Bureau of Land Management Farmington Field Office Field Manager at 1 (dated October 27, 2014)(A.R.0178400)("WildEarth et al. letter")("The BLM's rampant approval of Mancos shale drilling and fracking is not only threatening the region's air, water, fish and wildlife, but undermining our nation's progress in reducing greenhouse gases and combating climate change."). Accordingly, the Court concludes that the BLM did not violate NEPA by failing to give the public notice of its proposed wells' effects. See also Amigos Bravos v. U.S. Bureau of Land Management,
The Plaintiffs contend, however, that the BLM did not adequately involve the public when it prepared EAs for the Mancos Shale wells, because the BLM made a case-by-case determination whether to post draft EAs for public comment depending on whether the well was "routine or unique," and "who might be interested or affected by the project." Diné Brief at 29. According to the Plaintiffs, the BLM arbitrarily labeled some wells "routine" to exclude the public. Diné Brief at 29. The Plaintiffs also assert that their repeated requests for information about wells should have signaled to the BLM that the wells were not "routine." Diné Brief at 29-30.
The Court concludes that the BLM's policy of making a case-by-case determination whether to post draft EAs for comment falls within the BLM's considerable discretion to dictate its EA process. The Tenth Circuit has determined that the agency does not need to disclose every draft EA. See Flowers,
Although the Plaintiffs contend that the BLM arbitrarily labeled some wells routine to avoid disclosing public draft EAs, there is no record evidence that the BLM acted arbitrarily. The Plaintiffs' citations to support that argument are: (i) an email from environmental groups arguing that the BLM should put a hold on leasing land and approving APDs in areas where fracking and horizontal drilling is reasonably foreseeable, see Diné Brief at 29 (citing Email from Wilma Tope, Powder River Basin Resource Council Chair, Nathan Johnson, Buckeye Forest Council Staff Attorney, Brendan Cummings, Center for Biological Diversity Public Lands Director, Bruce Valzel, Earthworks Oil & Gas Accountability Project Senior Staff Attorney, Amy Mall, Natural Resources Defense Council Senior Policy Analyst, *1098Barry Weaver, Newton County Wildlife Association Chair, Mike Eisenfeld, San Juan Citizens Alliance New Mexico Energy Coordinator, Walter Loraine McCosker, Ohio Sierra Club Forest and Public Lands Committee Co-Chair, Donny Nelson, Western Organization of Resource Councils Oil and Gas Campaign Team Chair, and Bruce Pendery, Wyoming Outdoor Council Staff Attorney to Michael J Pool, Bureau of Land Management at 1 (dated August 7, 2012)(A.R.0178179-81) ); (ii) an email from Eisenfeld stating that he objects to the BLM's practice of self-determining what wells are routine or unique, see Diné Brief at 30 n.10 (citing Email from Mike Eisenfeld, San Juan Citizens Alliance New Mexico Energy Coordinator to Gary Torres, Bureau of Land Management Deputy Division Chief (Acting) at 2 (dated December 3, 2014)(A.R.0178208) ); (iii) the WildEarth et al. Letter requesting that the BLM stop issuing new APDs and detailing their arguments why such an action is appropriate, see Diné Brief at 30 (citing WildEarth et al. Letter at 1 (A.R.0178401); and (iv) various requests for final EAs not posted to the BLM's website and the BLM's responses, see Diné Brief at 30 (citing Email from Mike Eisenfeld to Gary Torres at 1 (dated August 5, 2013)(A.R.0178183); Email from Maureen Joe to Mike Eisenfeld at 1 (dated August 28, 2013)(A.R.0178185); Email from Mike Eisenfeld to Amanda Nisula at 1 (dated March 6, 2014)(A.R.0178186); Email from Mike Eisenfeld to Amanda Nisula at 1 (dated October 2, 2014)(AR178204); Email from Amanda Nisula to Mike Eisenfeld at 1 (dated October 3, 2014)(AR178204) ). The record cited demonstrates that environmental groups have objected, for many years, to the way that the BLM has conducted its processes, but it does not demonstrate that the BLM arbitrarily labeled some of the wells routine to avoid public involvement. The Court finds no record evidence, for example, that these wells are so different from each other such that the BLM's determination that their EAs would be alike is clearly without basis. Moreover, after studying several EAs in the record, the Court concludes that the EAs' analyses for many, if not all of these wells, are likely to be substantially similar. In two of the EAs that the Court considered the environmental analysis is highly alike. Compare Environmental Assessment DOI-BLM-NM-F010-2014-0254 at 18-20 (A.R.0120125-27), with Environmental Assessment DOI-BLM-NM-F010-2014-0250 at 18-21 (A.R.0119200-03). For example, in both EA's air quality analysis, the BLM lists harmful pollutants, considers how much the well will increase the amount of those pollutants, and determines the cumulative impact the well will have on the air with the other wells in the San Juan Basin. Compare Environmental Assessment DOI-BLM-NM-F010-2014-0254 at 18-20 (A.R.0120125-27), with Environmental Assessment DOI-BLM-NM-F010-2014-0250 at 18-21 (A.R.0119200-03). The Court concludes, accordingly, that the BLM did not act arbitrarily in labeling these projects routine.
Finally, the Plaintiffs argue that the BLM violated NEPA regulations when it delayed posting the final EAs. See Diné Brief at 30-31. Under
The two cases that the Plaintiffs cite to the contrary are inapposite. See Diné Brief at 31 (citing WildEarth Guardians v. OSMRE,
VI. THE BLM DID NOT VIOLATE THE NHPA, BECAUSE CHACO PARK AND ITS SATELLITES ARE OUTSIDE OF THE APE, AND THE RECORDS' CULTURAL RESOURCE ANALYSES SATISFY THE PROTOCOLS' DOCUMENTATION STANDARDS.
The Court concludes that the Plaintiffs' main contention with respect to the NHPA-that the BLM violated the NHPA by not analyzing the indirect effects the wells would have on Chaco Park and its satellites-lacks merit. That contention fails, because the Protocols governing the BLM require it to consider effects on historical sites within the APE, and Chaco Park and its satellites are outside of the wells' APEs. Thus, that the BLM did not consider the wells' effects on Chaco Park and its satellites did not violate the Protocols, so did not violate the NHPA. The records' cultural resources analysis otherwise comport with the Protocol's documentation standards, so there is no other NHPA violation.
"NHPA, like NEPA, is a procedural statute requiring government agencies to stop, look, and listen before *1100proceeding 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 Transportation,
Because the NHPA is a procedural statute, a reviewing court is not tasked with determining if the BLM correctly decided whether an oil well or another project altered a historic site. See Concerned Citizens,
The NHPA's regulations also outline the documentation standards for NHPA determinations. See
Few cases have interpreted
An agency, however, may substitute the NHPA's regulations, in whole or in part, if an "agency program alternative" governs the project.
Here, the BLM entered two program alternatives: one in 2004 and another in 2014. See 2004 Protocol at 1-22 (A.R.0169038-59); 2014 Protocol at 1-51 (A.R.0169213-299). Under the 2004 Protocol, a New Mexico Cultural Heritage Specialist ("CHS")28 determines the APE on a case-by-case basis. See 2004 Protocol § VI(D)(1)-(2), at 11-12 (A.R.0169048-49). If the CHS subsequently determines that an APE contains no historic or only "isolated manifestations" of historic sites, the undertaking will be approved. 2004 Protocol § VI(F)(1), at 14 (A.R.0169051). If the CHS determines that there is a potential that an undertaking will damage or destroy a "cultural resource," but that site is unlikely to be eligible for NHPA protection, the undertaking will be approved. See 2004 Protocol § VI(F)(2), at 14 (A.R.0169051). If the CHS determines that there is a NHPA protected site within the APE, the CHS can make one of three findings: (i) no effect; (ii) no adverse effect; or (iii) adverse effect. See 2004 Protocol § VI(G)(1)-(4), at 15-16 (A.R.01969052-53).
*1102A no-effect finding means that the undertaking will not alter the characteristics that make a site eligible for the National Register of Historic places. See 2004 Protocol § VI(G)(2), at 15 (A.R.0169052). A no-adverse-effect finding means either that the undertaking will have a positive effect on the site or that a site, specifically an archaeological site, can be treated to mitigate the adverse effect, such as through "data collection," i.e., all of or the majority of the valuable historic data from an archaeological dig is retrieved. 2004 Protocol § VI(G)(3)(a)-(b), at 15-16 (A.R.0169052-53). An adverse effect occurs when an undertaking changes a site's characteristics that qualify it for inclusion in the National Register of Historic Places. See 2004 Protocol § VI(G)(4), at 16 (A.R.0169053).
The 2004 Protocol also establishes its own documentation standards in lieu of
[e]valuate and describe the potential of the undertaking, proposed project, or action to affect each of the cultural resources identified within the project area or immediately adjacent to the project area. This discussion should address each cultural property individually, and should consider the nature of the cultural property and those attributes that determine its potential for nomination to the National Register, its location with respect to ground disturbing activities and other project actions, its location relative to current public access, and its location relative to changes in access resulting from the completion of the proposed undertaking.
New Mexico Bureau of Land Management Reporting Standards for Small-Scale Cultural Resource Inventory Project Reports, at Appendix 3-7 (A.R.0169166)("BLM Procedures Appendix"). The Determination of Effect requirement, like
The field investigator's recommendations concerning measures which can be taken to avoid or mitigate the effects of the undertaking upon properties within the area of potential environmental effect are invaluable. It may prove impossible to revisit each documented property, so suggestions on how to protect them must be as specific as possible.
This section requires the preparer to evaluate whether or not the undertaking could affect the properties recorded. If the answer is no, then explain why. Be explicit as to where each site is located in relation to the project's ground disturbance, increased public access, etc.
If it is felt that the undertaking could affect any of the sites, then state explicitly *1103how each property could be impacted. Be specific and relate any suggestions for avoidance or mitigation of effects to individual site-sketch maps. Discuss how the specific qualities making individual properties significant could be affected by the undertaking.
BLM Procedures Appendix at 3-7 (A.R.0169166). Thus, if the undertaking does not affect the historical site, the CHS "explain[s] why." BLM Procedures Appendix at 3-7 (A.R.0169166). If the undertaking could affect any of the historical sites within the APE, the CHS must "state explicitly how each property could be impacted" and must also "[d]iscuss how the specific qualities making individual properties significant could be affected by the undertaking." BLM Procedures Appendix at 3-7 (A.R.0169166).
The 2014 Protocol is similar to the 2004 Protocol, but also diverges in some important ways. In general terms, the 2014 Protocol requires that
the BLM will consider potential direct, indirect, and cumulative effects to historic properties and their associated settings when setting is an important aspect of integrity, as applicable. The introduction of physical, visual, audible, or atmospheric elements has the potential to affect the historic setting or use of historic properties including but not limited to properties of religious and cultural significance to Indian tribes, and the BLM will take this into account in defining the limits of an APE for indirect effects.
2014 Protocol at 21 (A.R.0169233). Unlike the 2004 Protocol, which lets the CHS have considerable discretion to determine the APE, the 2014 Protocol discusses an APE definition for both direct and indirect effects. The APE for direct effects has a fixed boundary depending on the type of undertaking, and, for oil well pads, it is the well pad's construction zone plus one hundred feet on each side of the construction zone's edges. See 2014 Protocol at 21 (A.R.0169233); New Mexico State Protocol Appendix B Standard APEs for Direct Effects at 1, 3 (A.R.0169265, A.R.0169267)("2014 Protocol App. B"). The APE for indirect effects, on the other hand, "shall include known or suspected historic properties and their associated settings where setting is an important aspect of integrity," but identification efforts outside of the Direct Effect APE for historic sites are subject to the BLM Field Manager's approval after considering recommendations from the SHPO. 2014 Protocol at 21 (A.R.0169233). In other words, an indirect APE exists only if the BLM field manager approves of one after he or she considers SHPO recommendations. See 2014 Protocol at 21 (A.R.0169233). The 2014 Protocol then establishes the criteria by which the BLM may classify a historic property as adversely or not adversely affected:
The BLM will consider the following guidance when determining whether a finding of No Historic Properties Affected is appropriate. If the inventory does not find cultural resources of any kind, and/or only identifies isolated manifestations (isolated occurrences), or only finds ineligible sites, buildings, structures or objects, then a determination of No Historic Properties is appropriate. If historic properties are present in the APE but will not be affected by the undertaking, then a determination of No Historic Properties Affected is appropriate. If a setting analysis is completed, and a proposed project will not be visible from the historic property, then a determination of No Historic Property Affected is appropriate. A determination of No Historic Properties Affected is generally not appropriate when the undertaking involves ground disturbance within the boundaries of a historic property.
*1104....
The BLM will consider the following guidance when determining whether a finding of No Adverse Effect is appropriate.
a. If a historic property is being affected by a proposed undertaking, but the effect will not diminish the aspects of integrity nor alter, directly or indirectly, any of the characteristics that make the property eligible for listing in the NRHP, then a finding of No adverse Effect is appropriate as defined in 36 CFR 800.5(b). This applies to all historic properties located within the APE.
b. If it can be demonstrated that the portion of the property that will be affected directly or indirectly, lacks integrity, then a finding of No Adverse Effect is appropriate. For archaeological sites this will usually involve documentation on how the archaeological site has been disturbed and a discussion of how the integrity deposits has been compromised.
c. If setting, feeling and/or association are contributing aspects of integrity for any historic property, and a proposed undertaking will be visible from the historic property, but the project elements will not dominate the setting or attract the attention of the casual observer, the BLM will document the decision and a finding of No Adverse Effect is appropriate as provided in 36 CFR 800.5(b).
d. If the BLM proposes preservation, stabilization, rehabilitation, or reconstruction of NRHP eligible sites, buildings, structures, or objects, and the work is consistent with the Secretary of Interior's Standards for the Treatment of Historic Properties (SOI Standards), or the BLM modifies the undertaking or imposes conditions on the undertaking to ensure consistency with the SOI Standards, a finding of No Adverse Effect is appropriate as provided in 36 CFR 800.5(b)
....
[T]he BLM will consider the following guidance when determining whether a finding of Adverse Effect is appropriate.
a. If setting, feeling and/or association are contributing aspects of integrity for any historic property, and a proposed undertaking will be visible from the historic property, and the project elements dominate the setting, a finding of Adverse Effect is appropriate as provided in 36 CFR 800.5(a)(1).
b. If the proposed undertaking, including research excavation projects, will result in the physical destruction of or damage to all or part of the historic property, a finding of Adverse Effect is appropriate as provided in 36 CFR 800.5(a)(1).
2014 Protocol at 26-30 (A.R.0169238-42). The 2014 Protocol's documentation standard, however, is identical to the 2004 Protocol's documentation standard. See 2014 Protocol at 31 (A.R.0169243). See also BLM Procedures Appendix at 3-7 (A.R.0168975).
The Plaintiffs main contention is that air, light, and noise pollution, and vehicle traffic, adversely affect Chaco Park and its satellites, and that the BLM failed to take those effects into account in its analysis. See Diné Brief at 35; Diné Reply at 18. The BLM counters that it has satisfied its NHPA obligations, because it commissioned a cultural investigation, defined an APE, "considered foreseeable direct and indirect adverse effects to cultural resources," and determined whether the wells would have an adverse effect on the sites. BLM Response at 37-38. The Operators *1105also contend that the BLM properly followed the 2004 and 2014 Protocols. See Operators' Response at 24-25. The Court concludes that the BLM complied with the NHPA, because the BLM followed the Protocols it adopted. For each well, it: (i) defined the APE; (ii) determined if there were any historical sites within that APE; and, (iii) if there were historical sites, it signaled the historical site's nature, and documented how effects to that site could or could not be avoided.
The Court conducts an arbitrary-and-capricious review of the BLM's process and the factors it considered when determining if a historical site has been affected. See Concerned Citizens,
With those concepts in mind, the Court turns to the Plaintiffs' contentions. First, they contend that there is no "record evidence to indicate that BLM ever defined an area for indirect effects,"30 so the BLM acted arbitrarily and capriciously. Diné Brief at 38. In making this argument, the Plaintiffs attack the first step an agency must take under the NHPA: defining the APE. Nothing in the protocols, however, requires that the BLM define each well's indirect APE separate from the direct APE. Instead, the 2014 Protocol creates a standard direct APE for oil well pads, which is equal to the area of the well pad and construction zone plus a one-hundred foot buffer zone on each side of the construction zone's edges. See 2014 Protocol at 21 (A.R.0169233); 2014 Protocol Appendix B at 1 (A.R.0169265). The 2014 Protocol then states that an indirect APE "shall include known or suspected historic properties and their associated settings where setting is an important aspect of integrity," but the indirect APE definition subsequently notes that "identification efforts" outside of the direct APE for other historical *1106sites shall occur only with the BLM field manager's approval after the BLM manager has considered recommendations from the BLM cultural resource specialist and the SHPO. 2014 Protocol at 21 (A.R.0169233). In other words, the BLM need only consider historic properties within the direct APE, unless the BLM field manager, after taking into account certain recommendations, decides that the BLM needs to broaden its scope to include other "known or suspected properties." 2014 Protocol at 21 (A.R.0169233). Thus, under the 2014 Protocol, the default APE definition is the direct APE's definition-one-hundred feet within the well pad's construction zone. To be sure, the 2014 Protocol still requires the BLM to consider indirect and cumulative effects that the wells have on those historic sites within the APE, see 2014 Protocol at 21 (A.R.0169233), but there does not need to be a separate indirect APE defined to satisfy the Protocols. Indeed, the 2014 Protocols expect that the direct and indirect APEs, in most cases, will be the same, and will diverge only when the BLM field manager approves of a divergence. See 2014 Protocol at 21 (A.R.0169233).
The 2004 Protocol similarly requires no separate indirect APE definition. It provides: "NM BLM cultural heritage specialists will determine the area of potential effects that will be subject to inventory. This determination will define the geographic area within which the undertaking might directly or indirectly cause changes to the character or use of any historic properties should they exist." 2004 Protocol at 11-12 (A.R.0169048). The 2004 Protocol, unlike the 2014 Protocol, does not create a standard direct APE nor does it create a standard indirect APE. The definition turns on what appears to be the CHS' case-by-case determination. See 2004 Protocol at 11 (A.R.0169048). The 2004 Protocol makes no distinction between direct or indirect APE, so, based on its plain language, the indirect APE does not need to be separately defined. Accordingly, it is not arbitrary and capricious that the BLM did not separately define the indirect APE from the direct APE.31
Second, the Plaintiffs cite the 2014 Protocol's language, which states that, "[i]n defining the APE, the BLM will consider potential direct, indirect, and cumulative effects to historic properties and their associated setting when setting is an important aspect of integrity, as applicable" to argue that the BLM needed to consider the wells' effects on Chaco Park and its satellites. Diné Brief at 37 (quoting 2014 Protocol at 21 (A.R.0169233) ). See Diné Brief at 38-39. Their argument pivots on whether that language means that the BLM, in defining the APE, had to consider and document their consideration of the historic sites many miles away from the wells. The Court concludes that the 2014 Protocol has no such requirement. Rather, as already explained, efforts to identify historic sites that could be indirectly affected, and thus need to be considered, are executed at the BLM field manager's discretion with the BLM cultural resource specialist's and the SHPO's recommendations. See 2014 Protocol at 21 (A.R.0169233). The 2014 Protocol grants the BLM some flexibility in defining the APE, which makes sense, because the indirect APE is bound to be different for different sites. If, for example, a mountain stands between a well and a historic site, considering the well's indirect visual effects on that historic site does not make sense. The NHPA regulations recognize-perhaps for that reason-that the APE needs to be flexible. See
That the BLM may not have ever considered Chaco Park and its satellites is not arbitrary and capricious, because (i) the 2014 Protocol does not require the BLM to consider those sites; and (ii) the Court cannot say that the BLM should have considered those sites given that Chaco Park and its satellites are more than ten miles away for most of the wells. See Location of APDs Challenged in DinéCARE v. Zinke 15-cv-209 (D.N.M.) Administrative Record Data at 1, filed June 6, 2017 (Doc. 113-1)("APD Map Aff.").32 Although some oil wells might be visible from the historic sites, the Court could locate no evidence in the record demonstrating that the wells actually are visible from those sites.33 The wells' distance from Chaco Park and its satellites also suggests that noise and light pollution would have minimal effect on those historic sites. To be sure, noise can travel a distance, but any noise that would carry miles to the historical site would not be so much that it was arbitrary and capricious for the BLM to exclude Chaco Park and its satellites from the APE. There is already ambient noise from traffic into the park and traffic on Highway 550-the area where most of the well pads are located. The same analysis applies for light pollution. Finally, the Court cannot say that the 2014 Protocol is arbitrary and capricious for granting the BLM discretion in determining what sites it needs to consider for indirect effects, because the regulations also suggest that the APE should be defined flexibly. See
Third, the Plaintiffs argue that the BLM violated the 2014 Protocol, because the BLM did not consult with the SHPO to define the indirect effects to historic properties. See Diné Brief at 38. In so arguing, the plaintiffs cite language from the 2014 Protocol's Appendix B, which states:
In certain circumstances, even though an undertaking may have a standard APE listed below, the Field Manager, at *1108the recommendation of the cultural resource specialist, may have justification to require a larger APE. If an APE larger than the minimums below is being recommended, SHPO consultation is not required. For actions where a field office is suggesting a smaller APE for an undertaking listed below, SHPO consultation will be required pursuant to Section IV.B. For any other APEs (i.e. undertakings not listed here, visual effects APE, etc.), the cultural resource specialist will consult with SHPO pursuant to Section IV.B.
2014 Protocol Appendix B at 1 (A.R.0169265)(emphasis in original). The Plaintiffs read the language-"[f]or any other APEs ... the cultural resource specialist will consult with the SHPO," 2014 Protocol Appendix B at 1 (A.R.0169265)(emphasis in original)-to mean that the BLM must consult with the SHPO "to define an APE for indirect effects," and, because there is no evidence that the BLM ever consulted with a SHPO, the BLM violated the Protocol. See Diné Brief at 37-38. The Court agrees with that analysis to a point. It is true that the 2014 Protocol requires the BLM field manager to consider recommendations from the SHPO when that field manager is determining whether identification efforts for historic properties outside of the direct APE are required. See 2014 Protocol at 21 (A.R.0169233). The Plaintiffs' assumption is, however, that the BLM Field Manager must conduct that larger APE analysis for every well, but the 2014 Protocol does not require that analysis; rather, it requires such an analysis only at "the approval of the BLM field manager." 2014 Protocol at 21 (A.R.0169233). That language suggests that a larger APE analysis is an exception to the typical rule. A SHPO consultation is thus not mandatory for every well, but only for wells that the BLM Field Manager is considering expanding the APE. Accordingly, the BLM's failure to consult the SHPO for every well does not, by itself, demonstrate that the BLM acted contrary to law or arbitrarily and capriciously.
Fourth, the Plaintiffs contend that the BLM violated the 2014 Protocol, because a SHPO consultation is required for every "complicated or controversial" undertaking. According to the Plaintiffs, all of the wells at issue are controversial and there is no record of a SHPO consultation, so the BLM violated the 2014 Protocol. See Diné Brief at 37-38. The Plaintiffs do not explain why the wells are controversial, see Diné Brief at 37-38; presumably, they are controversial, because the Plaintiffs have challenged them. The Court concludes that the 2014 Protocol's reference to "complicated or controversial" does not apply, merely because a plaintiff group creates a controversy by challenging the wells. Such a definition would suggest that the BLM should consult a SHPO on every well, because any well could be subject to legal challenge. If the 2014 Protocol's intent was to require the BLM to always consult a SHPO, it would have said as much instead of creating a scheme whereby SHPO consultation is the exception instead of the rule. See 2014 Protocol at 21 (A.R.0169233). Because the Plaintiffs have not demonstrated how any of the wells are otherwise controversial, the Court concludes that the wells are not controversial, so the BLM is not required to consult a SHPO for that reason.
The Plaintiffs' final contention is that the BLM did not consider the indirect or cumulative effects the wells would have on Chaco Park and its satellites. See Diné Brief at 36, 40. The BLM need consider those indirect or cumulative effects only if those historical sites were within the various wells' APE. See 2014 Protocol at 27-28 (A.R.0169239-40); 2004 Protocol at 15 (A.R.0169052). After reviewing the records' cultural resource reports, the Court concludes that Chaco Park and its satellites *1109are not within any of the wells' APEs, see, e.g., A Cultural Resources Survey of WPX Energy Production LLC's Chaco 2306-18M Number 240H/256H Dual Well Pad, Pipeline, and Access Road at 4 (dated March 21, 2014)(A.R.0168011)("Chaco 2306-18M Report"), so the BLM did not act arbitrarily and capriciously when it did not explicitly consider indirect effects to those properties within its cultural resource reports. The Court also concludes that the records' cultural resources reports meet the 2004 Protocol's and the 2014 Protocol's documentation standards. Each cultural resource report and its accompanying cultural resource record of review describes each historical site within the APE with enough detail that the Court can discern the historical site's nature, as required. See 2014 Procedures at Appendix 3-7 (A.R.0168975). The sites identified are archaeological in nature. See, e.g., Chaco 2306-18M Report at 4(A.R.0168011)(identifying the historical site as qualifying for the national registry of historic places under criteria D, which means it is a site that has yielded or is likely to yield information important in history). See also New Mexico Cultural Resource Information System at 24 (A.R.0169118)(defining criteria D under the national registry of historic places as a site that "has yielded, or is likely to yield, information important in prehistory or history," and noting that "[o]bviously most archaeological sites will fall under criteria 'd.' "). Those reports then describe why the BLM has determined that the well pad will not affect those sites. See, e.g., Chaco 2306-18M Report at 4; Cultural Resource Record of Review for Chaco 2306-18M at 1-2 (A.R.0168012-13)("Chaco 2306-18M CRROR"). Most often, the reason is that the site can be avoided during construction, thus eliminating or severely mitigating the risk of physical damage. See, e.g., Chaco 2306-18M Report at 4; Chaco 2306-18M CRROR at 1-2. As explained in the 2014 Protocol, a project's adverse effect on an archaeological site is limited to whether the project could physically destroy or damage the archaeological site. See 2014 Protocol at 30 (A.R.0169242). Such a limitation makes sense, as the archaeological site's historical value stems from the historical data recoverable from the location and not the historical property's setting or feeling associated with it. As the Court mentioned previously, the documentation standard is not a high standard, and the Court concludes that the record documentation for these archaeological sites meets the low bar that the documentation standard erects.34 Accordingly, the BLM did not violate the NHPA. *1110VII. IF THE COURT WERE TO CONCLUDE THAT THERE WERE A NEPA VIOLATION, VACATUR AND REMAND, BUT NOT A PERMANENT INJUNCTION, WOULD BE THE PROPER REMEDY, AND IF THE COURT WERE TO CONCLUDE THAT THERE WERE A NHPA VIOLATION, REMAND WITHOUT VACTUR, IN LIEU OF A PERMANENT INJUNCTION, WOULD BE THE APPROPRIATE REMEDY.
If the Court concluded that there were a NEPA violation, it would conclude that vacatur would be the proper remedy, but a permanent injunction would not be. Vacatur with remand, as opposed to remand without vacatur, of the 350 wells' APDs is proper, because the seriousness of the BLM's violation outweighs the potential harm the operators would suffer. An injunction precluding the BLM from approving more wells would be inappropriate, however, as the presumption is in favor of remand with vacatur. Moreover, on balance, given the harms alleged, vacatur would better serve the public. On the other hand, if there were just a NHPA violation, remand without vacatur would be appropriate, because the harms alleged are purely aesthetic.
A. VACATUR OF THE WELLS' APDS IS PROPER.35
Vacatur is the usual remedy for an agency action that is arbitrary, capricious, or contrary to law. See
*1111Here, had the Plaintiffs made a showing that the BLM violated NEPA, because the EIS did not consider the significant effects resulting from these wells that use horizontal drilling and fracking techniques, the APD deficiency would be serious. Hundreds of wells would be operating without a robust EIS level analysis of horizontal drillings' effects on the environment. First, there would be unconsidered impacts to water consumption-perhaps to the tune of hundreds of millions of gallons of freshwater-which is of particular consequence in a desert. See RMP/EIS at 4-14, 4-15 (A.R.0001024-25); see 2014 RFDS at 23-24 (A.R.0173848-49).36 There would also be unconsidered impacts to the surface area, equaling about 2,000 acres, and the air quality, equaling around several thousands of tons of emissions per year. See Reply Brief at 10-11, nn.15, 17 (citing e.g. Environmental Assessment DOI-BLM-NM-F010-2014-0004, at 7 (A.R.0047459); (A.R.14456); 2003 RMP/EIS at 4-58-4-61).37 The Court notes that the harm from unconsidered environmental impacts is more than just the direct environmental impacts. The loss of water from horizontal drilling is the same regardless whether the BLM considered that loss of freshwater. Another very real harm from unconsidered effects is the increased risk that these unconsidered effects could cause some more dire unforeseen harm. For example, the increased use of hundreds of millions of gallons of water could impact New Mexico's desert or the San Juan Basin in some way that is not reversible. Thus, in weighing the rulemaking's deficiency, the Court must also consider the risk of unforeseen harms. See Diné III,
These rulemaking's deficiencies must then be balanced against the harms arising from vacating 350 APDs. The harm stemming from vacatur would primarily be economic. The operators would lose profits from the dormant wells. While this harm is not trivial-as the Court analyzed previously, see Diné,
Moreover, as at least one other district court has recognized, in the oil-and-gas industry, the risk of "lost profits and industrial inconvenience" is "the nature of doing business," because it is an industry "fraught with bureaucracy and litigation." Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers,
In contrast to the NEPA violation, the environmental harms associated with the NHPA violation are far less severe. The Plaintiffs allege that air, light, and noise pollution adversely affect historic sites. See Diné Response at 35. Although those are cognizable harms, the BLM's failure to consider how air, light, and noise pollution might affect Chaco Park and its satellites is unlikely to lead to irreparable harm or *1113even serious harm to the historic property in the interim between this order and the agency's updated decision.40 All of those individuals who visit those historic sites might be inconvenienced, or their experience might be less enjoyable, but that harm does not outweigh the potential hundreds of thousands to millions of dollars of economic harm the operators will endure. Accordingly, remand without vacatur would be appropriate for the NHPA violation.
B. A PERMANENT INJUNCTION IS UNWARRANTED.
As the presumption is in favor of remand with vacatur vis-à-vis remand without vacatur, so is the presumption in favor of vacatur vis-à-vis a permanent injunction. See Monsanto Co. v. Geertson Seed Farms,
A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C.,
Turning first to irreparable harm, as the Court previously determined in Diné,
In contrast, the harm alleged under the NHPA-noise, air, and light pollution causing an aesthetic injury to the historic site-is not irreparable. To stop the noise all the operators have to do is strop drilling. Similarly, to stop the light pollution, the riggers need only turn off the lights. Although air pollution is typically conceived of as an irreparable environmental harm, the air pollution here, as explained above, is an aesthetic harm affecting the historic site's setting or feeling associated with it. The Court conceives of this harm in the form of smog or a hazy day. Such *1114air pollution would decrease the aesthetic of a site like Chaco Park. This type of air pollution, however, tends to be localized and can be alleviated if the local machinery causing it is stopped. Accordingly, the Court concludes that there is no irreparable harm vis-à-vis the NHPA. Monetary damages have also been found-at least at common law-appropriate for aesthetic injuries, depending on their severity. For example, nuisance provides money damages for noxious odors. See Safe Streets Alliance v. Hickenlooper,
With NEPA, although the first two factors favor a permanent injunction, the balance of hardships do not favor an equitable solution, given the other available remedy-vacatur. The balance of hardships have already been addressed supra, and the Court determines that the balance favored the Plaintiffs. Nevertheless, the balance of hardships do not counsel a permanent injunction-"a drastic and extraordinary remedy," Monsanto Co. v. Geertson Seed Farms,
IT IS ORDERED that the requests in the Plaintiffs' Opening Merits Brief, filed April 28, 2017 (Doc. 112), are denied. All of the Plaintiffs' claims are dismissed with prejudice.
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312 F. Supp. 3d 1031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dine-citizens-against-ruining-our-envt-v-jewell-nmd-2018.