Northern Cheyenne Tribe v. Norton

503 F.3d 836, 169 Oil & Gas Rep. 421, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20227, 65 ERC (BNA) 1193, 2007 U.S. App. LEXIS 21722, 2007 WL 2595476
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 11, 2007
Docket05-35408, 05-35413, 05-35540, 05-35586, 05-35587
StatusPublished
Cited by43 cases

This text of 503 F.3d 836 (Northern Cheyenne Tribe v. Norton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northern Cheyenne Tribe v. Norton, 503 F.3d 836, 169 Oil & Gas Rep. 421, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20227, 65 ERC (BNA) 1193, 2007 U.S. App. LEXIS 21722, 2007 WL 2595476 (9th Cir. 2007).

Opinions

Opinion by Judge KLEINFELD; Dissent by Chief Judge SCHROEDER.

KLEINFELD, Circuit Judge:

This appeal challenges an injunction limiting but not entirely prohibiting coal bed methane development while the Bureau of Land Management expands an environmental impact statement.1

Facts

The Powder River Basin in Montana and Wyoming is the largest coal deposit in the United States and among the largest in the world. For over a century, it has been developed into ranches, farms, and coal mines. Farmers and ranchers generally have surface rights to the land involved in this case, but not hell-to-heaven rights. The federal government owns subsurface mineral rights to the land at issue.

Besides its value for grass to feed cattle, farms, and coal mines, the land is thought to cover vast amount of methane. This coal bed methane is a natural gas generated by coal deposits and trapped in coal seams by groundwater. Coal bed methane is extracted by pumping the groundwater out of the land and into rivers. As the water is removed, the hydraulic pressure on the gas is relieved, so the gas percolates and is piped to the surface, where it can be recompressed for shipping. The [840]*840process poses three potential environmental problems: the aesthetic harm from visibility of wells, pipes, and compressors on the ranches and farms; the pollution of the rivers and streams into which the groundwater is pumped; and the lowering of the water table, so that ranchers’ and farmers’ (and expanding suburban developers’) wells run dry unless they are drilled deeper.

The federal government owns most of the subsurface mineral rights in the Powder River Basin. The Bureau of Land Management administers mineral resources owned by the federal government. It leases these resources for development under the Mineral Leasing Act2 and manages them according to resource management plans developed under the Federal Land Policy and Management Act.3

For more than twenty years, the Bureau of Land Management has had resource management plans for the Powder River Resource Area. In 1994, BLM prepared an environmental impact statement analyzing development of oil and gas resources. On the basis of this environmental impact statement, it amended the resource management plan to permit development of conventional oil and gas resources and limited exploration and development of coal bed methane resources. In 1997, BLM began selling leases to develop oil and gas resources and leaseholders began exploring coal bed methane resources. The Powder River Basin covers about 14 million acres. The resource area covers about 8 million acres. About 4 million acres are currently leased.

Exploration revealed extensive coal bed methane deposits. As natural gas grew scarcer and more expensive, and energy independence became an increasingly significant government priority, the coal bed methane attracted more governmental interest in development. In 2002, BLM, together with the Montana Board of Oil and Gas Conservation and the Montana Department of Environmental Quality, issued a draft environmental impact statement analyzing development of coal bed methane resources and made it available for public review and comment.

The draft environmental impact statement analyzed five alternatives in detail: (A) “No Action (Existing Management)”; (B) “Emphasize Soil, Water, Air, Vegetation, Wildlife, and Cultural Resources”; (C) “Emphasize CBM Development”; (D) “Encourage Exploration and Development While Maintaining Existing Land Uses”; (E) “Preferred Alternative” that would “facilitate CBM exploration and development while sustaining resource and social values, and existing land uses.” The “Preferred Alternative” would not permit operators to drill more than one well per 640 acres without a project plan developed in consultation with the affected surface owners and permitting agencies.

This draft environmental impact statement was challenged by the federal Environmental Protection Agency, the Montana Department of Fish, Wildlife, and Parks, an advocacy group calling itself the Northern Plains Resource Council, and the Northern Cheyenne Tribe of Indians. The commenters suggested that BLM should study an additional alternative, which they called “phased development.” The final environment impact statement responds to this suggestion partly by saying that many of the points at issue are addressed in the environmental impact statement. The primary response, though, is that “existing oil and gas leases” approved pursuant to a 1994 resource management plan included the rights to explore and develop coal bed methane, and the time for challenging the 1994 decision was passed.

[841]*841The district court concluded that the final environmental impact statement was generally sufficient under NEPA, but improperly failed to consider the “phased development” alternative proposed by the commenters. Accordingly, it partially enjoined coal bed methane development:

Having considered the arguments, as well as the evidence and testimony presented, the Court finds that BLM’s proposal presents a balanced, equitable approach to CBM development during the pendency of the SEIS. In making this finding, the Court bears in mind that, in its opinion on the merits, the EIS generally passed muster under NEPA, with the exception of the failure to consider a phased development alternative. The plan designed by BLM is tailored to address this deficiency by allowing a type of phased development to proceed at the same time BLM analyzes the efficacy of such an alternative. The proposal will assist BLM in choosing between alternatives by permitting the agency to study the effects of phased CBM development while preparing the SEIS.4

The injunction prohibited coal bed methane development on 93% of the resource area until BLM completed a revised environmental impact statement, but permitted development on 7% of the resource area, subject to site-specific review. The district court granted the partial injunction on BLM’s recommended terms, concluding it was a “balanced and equitable” solution because “the EIS generally passed muster under NEPA, with the exception of the failure to consider a phased development alternative.”5 As the district court noted, the partial injunction allows “allowing a type of phased development to proceed at the same time BLM analyzes the efficacy of such an alternative.”6 In other words, the district court allowed what amounted to the “phased development” alternative to proceed while BLM decided whether to adopt it. The challengers got approximately the alternative they wanted BLM to consider, while it was being considered.

The district court found that the challengers failed to show coal bed methane would cause environmental degradation. The expert evidence they presented consisted of speculation on what harm coal bed methane development might cause and omitted relevant data like drought and stream flow volume. BLM studies showed that the environmental impact of coal bed methane development was less than anticipated, because it produced “much less” wastewater at a “slower rate” with “considerably lower” emissions than BLM’s environmental impact statement predicted.7

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Bluebook (online)
503 F.3d 836, 169 Oil & Gas Rep. 421, 37 Envtl. L. Rep. (Envtl. Law Inst.) 20227, 65 ERC (BNA) 1193, 2007 U.S. App. LEXIS 21722, 2007 WL 2595476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northern-cheyenne-tribe-v-norton-ca9-2007.