Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA POWDER RIVER BASIN RESOURCE COUNCIL, ) WYOMING OUTDOOR COUNCIL, and ) NATIONAL WILDLIFE FEDERATION, ) ) Plaintiffs, ) ) vs. ) ) U.S. BUREAU OF LAND MANAGEMENT, ) KENNETH SALAZAR, ) MIKE POOL, ) DONALD SIMPSON, and ) DUANCE SPENCER, ) ) Federal-Defendants, ) ) STATE OF WYOMING, ) ) Defendant-Intervenor, ) ) LANCE OIL & GAS COMPANY, INC., ) ) Defendant-Intervenor. ) Civ. No. 1:12-cv RMC PLAINTIFFS CONSOLIDATED RESPONSE AND REPLY IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

2 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 2 of 30 TABLE OF CONTENTS: INTRODUCTION...1 ARGUMENT...2 I. BLM FAILED TO TAKE A HARD LOOK AT THE IMPACTS OF THE PROPOSED ACTION AND FAILED TO JUSTIFY ITS DECISION TO FORGO PREPARATION OF AN EIS...2 A. BLM Failed to Take a Hard Look at Impact to Elk and Failed to Justify its Decision to Forgo an EIS BLM has Unlawfully Gerrymandered the Scope of its Analysis, Failing to Take a Hard Look and Isolating its Impacts Analysis to a Vacuum...3 a. BLM s Cumulative Impacts Analysis was Manipulated to Unlawfully Exclude the Elk Herd s Southern Range...4 b. BLM s NEPA Analysis was Unlawfully Manipulated to Limit the Type of Elk Habitat Considered BLM s Performance Based Elk Management Approach Creates Significant Uncertainty and Controversy BLM s Chosen Alternative Will Result in Significant Impacts to Elk Habitat and Population...17 a. BLM s Proposed Action Will Cause Significant Impacts to Elk Habitat, Requiring the Preparation of an EIS...18 b. BLM s Proposed Action Will Cause Significant Impacts to Elk Population, Requiring the Preparation of an EIS...19 B. BLM Failed to Take a Hard Look at Impacts to Water Resources and Failed to Justify its Decision to Forgo an EIS...22 C. BLM Failed to Take a Hard Look at Impacts to Soils, Slopes, and Reclamation, and Failed to Justify its Decision to Forgo an EIS...23 II. BLM FAILED TO CONSIDER A TRUE NO ACTION ALTERNATIVE...24 CONCLUSION...25 PLAINTIFFS MEMO. OF LAW: Civ. No. 1:12-cv RMC i

3 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 3 of 30 TABLE OF AUTHORITIES: Cases: Colo. River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191 (D.D.C. 2012)...13 Fund for Animals v. Babbitt, 903 F.Supp. 96 (D.D.C. 1995)...15 *Grand Canyon Trust v. Federal Aviation Administration, 290 F.3d 339 (D.C. Cir. 2002)...5, 6, 12, 23 Hill v. Boy, 144 F.3d 1446 (11 th Cir. 1998)...16 Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957 (9 th Cir. 2002)...13 *National Parks & Conservation Ass n v. Babbitt, 241 F.3d 722 (9 th Cir. 2001)...16, 23, 24 Nat l Comm. for the New River v. Fed. Energy Regulatory Comm n, 373 F.3d 1323 (D.C. Cir. 2004)...13 Northern Plains Resource Council v. Surface Transp. Bd., 668 F.3d 1067 (9 th Cir. 2011)...23 Public Citizen v. National Highway Traffic Safety Admin., 848 F.2d 256 (D.C. Cir. 1988)...14 *Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)...4, 9, 10, 14 Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983)...10, 17 Sierra Club v. Marsh, 769 F.2d 868 (1 st Cir. 1985)...4 Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497 (D.C. Cir. 2010)...16 TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 862 (D.C. Cir. 2006)...4, 5, 15 Statutes: 42 U.S.C. 4332(2)(C)...17 Regulations: 40 C.F.R PLAINTIFFS MEMO. OF LAW: Civ. No. 1:12-cv RMC ii

4 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 4 of C.F.R C.F.R C.F.R C.F.R , 6, 8, C.F.R C.F.R (b)(4)... Passim 40 C.F.R (b)(5)... Passim 40 C.F.R (b)(7)...8, 9, 23 PLAINTIFFS MEMO. OF LAW: Civ. No. 1:12-cv RMC iii

5 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 5 of 30 INTRODUCTION Plaintiffs hereby submit this consolidated reply in support of its motion for summary judgment and response in opposition to Federal-Defendants and Defendant-Intervenors (collectively Defendants ) motions for summary judgment. The Fortification Creek Planning Area ( FCPA ), at issue in this matter, is an oasis for wildlife in particular elk located in the heart of the Powder River Basin, one of our country s most prolific coal, oil, and natural gas producing regions. BLM no doubt finds itself in a difficult position. On the one hand, the oil and gas industry already has existing leases covering much of the area. On the other hand, the FCPA is home to some of the last remaining exceptional natural resource values in the entire Power River Basin, including the rare and isolated Fortification Creek elk herd. In the end, however, the record in this case reveals the U.S. Bureau of Land Management, et al., (collectively BLM ) chose to advance the interests of oil and gas industry above all else, and at the expense of the area s natural resource values. In so doing, BLM violated the National Environmental Policy Act ( NEPA ) and its implementing regulations in a number of significant respects, most notably by failing to take a hard look at the resources impacted by expanded oil and gas development and failing to justify its decision to forgo preparation of an environmental impact statement ( EIS ). In response, Defendants ask this Court to defer to the complex management scheme and analysis created and utilized by the agency in this case. But this approach does nothing to cure BLM s failure to comply with NEPA. BLM, for example, argues that it took a hard look at impacts to elk, but this does not change the fact that the agency failed to consider all elk habitat PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 1

6 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 6 of 30 in its analysis. BLM also claims that its performance goals are reasonable, but cannot justify why it abandoned its own science when shifting to its flexible elk management approach. Nor does this approach explain why scientifically established thresholds for biologically significant impacts to elk and their habitat were ignored. Through this failed rationalization, it becomes clear that BLM s prevailing purpose in the Resource Management Plan Amendment ( RMPA ) was to both expand oil and gas development into the FCPA while, simultaneously, avoiding a finding of significance. As the record shows, these goals could not be reached without sacrificing major elements of BLM s NEPA analysis a failure that was carried forward and left uncorrected by BLM s approval of the Queen B Plan of Development ( POD ). ARGUMENT I. BLM FAILED TO TAKE A HARD LOOK AT THE IMPACTS OF THE PROPOSED ACTION AND FAILED TO JUSTIFY ITS DECISION TO FORGO PREPARATION OF AN EIS. A. BLM Failed to Take a Hard Look at Impacts to Elk and Failed to Justify its Decision to Forgo of an EIS. While both Plaintiffs and Defendants agree that a primary rationale behind undertaking the RMPA was to ensure protection of the Fortification Creek elk herd, BLM departed from this singular focus when its principal goal became reaching a Finding of No Significant Impact ( FONSI ). 1 See AR As a means to this end, the agency repeatedly abandoned its own science on elk and gerrymandered the scope of its analysis, as detailed below. Inherent in this compromise, BLM failed to take a hard look at impacts to the elk herd, created uncertainty and 1 See AR (providing the adopted approach must reach [a] FONSI. ). PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 2

7 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 7 of 30 controversy, and failed to justify its decision to forgo preparation of an EIS. Specifically, the elk management approach adopted by BLM is arbitrary and capricious for several reasons: First, BLM unlawfully gerrymandered the scope of its analysis to avoid a finding of significance, and, thus, unlawfully evaluated the project in a vacuum while creating significant uncertainty and controversy regarding the elk herd s long-term viability. Second, BLM created controversy and injected uncertainty into the true scope of impacts by moving from defined, hard thresholds for biologically significant impacts which were deemed necessary by agency science to flexible performance-based management goals. Third, the proposed action authorized by the RMPA may result in significant impacts to the elk herd impacts that could cause the extirpation of this species from its range in the Fortification Creek area. 1. BLM has Unlawfully Gerrymandered the Scope of its Analysis, Failing to Take a Hard Look and Isolating its Impacts Analysis to a Vacuum. In and effort to justify its chosen, industry-preferred alternative, Alternative III, the agency myopically narrowed the scope of its analysis in two critical ways: first, the agency excluded the southern range from its analysis, and, second, the agency constrained and limited the type of elk habitat it did consider. Neither of these restraints on analysis is supported by agency science, and neither satisfies the hard look requirements of NEPA. Defendants spend considerable time rationalizing BLM s chosen elk management regime provided in Appendix B suggesting that the complexity of the agency s approach and methodology, as well as the length of preparation time, are evidence that BLM satisfied NEPA s hard look requirement. See, e.g., Fed. Defs. Br. at 10-16; Lance Br. at 8-9; Wyo. Br. at 16. As this Circuit has recognized, [Environmental Assessment ( EA )] length, complexity, and PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 3

8 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 8 of 30 controversy do not themselves show that the EAs conclusion no significant impact is correct, nor do they show it is incorrect. TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F. 3d, 862 (D.C. Cir. 2006) (quoting Sierra Club v. Marsh, 769 F.2d 868, 875 (1 st Cir. 1985)). Under the Defendants defective logic, BLM s interminable process in this case was enough to satisfy NEPA. This is wrong. NEPA s hard look requirement doesn t mean that the agency must take a hard look only where it chooses. Rather, it must take a hard look at all direct, indirect, and cumulative impacts of the agency s proposed action. See 40 C.F.R , , ; Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (providing that NEPA imposes action forcing procedures requir[ing] that agencies take a hard look at environmental consequences. ). As detailed below, BLM failed to take a true hard look at all impacts to elk, and, through this failure, created uncertainty and controversy requiring the preparation of an EIS. a. BLM s Cumulative Impacts Analysis was Manipulated to Unlawfully Exclude the Elk Herd s Southern Range. BLM unlawfully constrained the scope of its analysis area, excluding the elk herd s southern range, and thus isolating its analysis to only specific habitat within the FCPA, in violation of NEPA s cumulative analysis requirements. A cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. 40 C.F.R This Circuit has held that a meaningful cumulative impact analysis must identify five things: (1) the area in which the effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 4

9 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 9 of 30 past, present, and proposed, and reasonably foreseeable that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate. TOMAC, 433 F.3d at 864 (quoting Grand Canyon Trust v. Federal Aviation Administration, 290 F.3d 339, 345 (D.C. Cir. 2006). In other words, the agency s EA must give a realistic evaluation of the total impacts and cannot isolate a proposed action, viewing it in a vacuum. Grand Canyon Trust, 290 F.3d at 342. With regard to cumulative impacts to Fortification Creek elk, the obvious area of analysis is the herd s entire yearlong range the 122,933-acre Fortification Creek area containing 99% of all Wyoming Game and Fish Department ( WGFD ) radio-collar locations for the herd. AR Not only is this full range analysis required by NEPA, but it is also critical from a scientific perspective. See AR , AR The Fortification Creek herd is nonmigratory and utilizes their entire range throughout the year, and, as recognized by BLM s Wyoming State Director, [t]he southern yearlong range and the planning area are interrelated and interconnected with regards to elk. See AR , AR Moreover, the herd s entire yearlong range was the analysis area used for the 2007 Elk Report, as well as earlier drafts of the RMPA. See AR , AR Nevertheless, BLM s Final RMPA describes that [f]or purposes of analysis, the yearlong and crucial ranges within the boundaries of the FCPA will be the analysis area for elk excluding the herd s southern range. AR As WGFD explained to BLM, the southern range does include portions of crucial winter PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 5

10 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 10 of 30 range, parturition areas, and security habitat that are important to the overall elk herd. AR WGFD further explained: CBNG development that has taken place in the southern portion of the Fortification Elk Herd Unit has reduced the amount of available security habitat and has resulted in high or extreme impacts. AR Ignoring these impacts through a myopic and isolated management approach is arbitrary and capricious, and cannot be sustained. See Grand Canyon Trust, 290 F.3d at 346 (the agency cannot treat the identified environmental concern in a vacuum. ). While Defendants admit there is a significant amount of [coal-bed natural gas ( CBNG )] development outside the borders of the FCPA, they misconstrue the requirements of NEPA by arguing that BLM doesn t need to consider these impacts when analyzing the cumulative impacts to elk. Fed. Defs. Br. at 21. Defendants incorrectly maintain that BLM s exclusion of the elk herd s southern range was appropriate and reasonable because elk rely more heavily on range in the FCPA, providing, for example, that elk have already shifted away from using the southern portions of their range, that 90 percent of collared elk locations [are] within the FCPA, and that BLM determined the northern portion of the range is most critical. See Fed. Defs. Br. at 19, Lance Br. at 11, Wyo. Br. at 18. As noted above, NEPA mandates that a cumulative analysis consider all incremental impacts of the action when added to other past, present, and reasonably foreseeable future actions. See 40 C.F.R The agency does not have discretion, as Defendants erroneously contend, to exclude significant portions of the herd s range simply because that range is already developed and no longer provides suitable habitat for elk to use. See Fed. Defs. Br. at PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 6

11 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 11 of 30 The impacts of recent oil and gas development surrounding the FCPA are demonstrated in the images below, which show an explosion of CBNG wells between 2007 and See AR (Fig. 3-12, CBNG wells as of 2007); AR (Fig. 3-13, CBNG wells as of 2010). By ignoring this proliferation of development and focusing only on the portions of the largely undeveloped areas to the north, within the FCPA, it becomes evident that the agency s cumulative impacts analysis is fundamentally misleading, and fails to take the hard look that NEPA demands. Although the RMPA does identify impacts to elk from foreseeable development in the southern range, BLM limits this analysis as it does with its cumulative analysis of the FCPA to security habitat; i.e., development occurring outside this range isn t considered at all. AR PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 7

12 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 12 of Nevertheless, looking only at a baseline security habitat of 20,477 acres in the southern range, BLM determines that oil and gas development will result in a loss of 12,804 acres, or 63% of elk habitat. Id. While these impacts are extreme in and of themselves, what is more problematic from a cumulative perspective is BLM s failure to aggregate these impacts in the southern range with the impacts of foreseeable development in the FCPA, as NEPA demands. See AR ; 40 C.F.R , (b)(7). As shown by the tables included in Plaintiffs opening brief, Pls. Br. at 21-22, aggregating foreseeable development in the southern range with that of the FCPA results in an exceedance of the agency s 20% threshold. Specifically, Alternative III authorizes a 33% loss of the elk herd s security habitat across its 122,933-acre yearlong range. See AR That total loss of security habitat includes a 20% loss of total crucial elk habitat and a 57% loss of yearlong security habitat outside of crucial ranges. Id. Moreover, even if development proceeded only in the southern range with no CBNG development in the FCPA there would still be a total security habitat loss of 21%, and a 39% loss of yearlong security habitat outside of crucial ranges. 2 These significant impacts must be considered in an EIS. See 40 C.F.R (b)(7). Critically, by not including impacts to security habitat in the elk herd s southern range, the agency s RMPA deceptively concludes that Alternative III retains 80 percent of security 2 These statistics correct two errors in Plaintiffs opening brief: First, in the table on Pls. Br. at 22, under the column Total % Lost for Entire FCA Considering Only Southern RFD, the Yearlong range loss is 39% rather than 29%, as written. Second, in the summarizing these cumulative statistics, Pls. Br. at 23, Plaintiffs mistakenly wrote there would be a total loss of 18% rather than 21%, which is the correct figure. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 8

13 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 13 of 30 habitat within the yearlong and crucial ranges and would result in 33,687 acres of security habitat remaining, within the FCPA, following CBNG construction. AR This narrow focus on the FCPA allows BLM to improperly represent habitat impacts under the 20% significance threshold. However, as pointed out above, when impacts from the southern range are included, this 17% loss of security habitat becomes a 33% loss, in exceedance of the significance threshold. 3 Choosing to focus on the remaining habitat may be pragmatic when attempting to avoid an EIS, but this myopic approach to analysis is not what NEPA demands when looking at the cumulative impacts of development. Significance exists if it is reasonable to anticipate cumulatively significant impacts to the environment. Significance cannot be avoided by breaking it down into small component parts. 40 C.F.R (b)(7). The agency cannot ignore past habitat impacts simply because it is inconvenient. Not only does BLM s failure to include the southern range result in a misleading conclusion regarding impacts to elk, but it also fails to take the hard look that NEPA demands. See Methow Valley, 490 U.S. at 350. As we have learned from the agency s own science, considering all elk habitat across the herd s entire yearlong range is critical to assessing the elk herd s long-term viability. In fact, BLM has historically recognized the fundamental importance of the southern range to the herd, including it in the 2007 Elk Report and earlier drafts of the RMPA, when analyzing cumulative impacts to elk from CBNG development. AR , AR Defendants have failed to 3 Moreover, the foregoing statistics only represent losses within the elk herd s security habitat. As detailed below, BLM s cumulative analysis does not account for impacts to nonsecurity habitat within the herd s yearlong range, as science dictates is necessary. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 9

14 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 14 of 30 identify any science that supersedes these earlier reports or otherwise explains why impacts from development in the southern range were not aggregated into the agency s cumulative analysis. What is known, however, is that the CBNG industry made clear its desire for the southern range to be excluded. 4 Unfortunately for industry and BLM, disregarding the southern range in the agency s cumulative analysis even if it allows the agency to reach its desired FONSI is unlawful, arbitrary and capricious, and a decision that cannot be sustained. Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983). b. BLM s NEPA Analysis was Unlawfully Manipulated to Limit the Type of Elk Habitat Considered. In addition to excluding the southern range from BLM s cumulative analysis, the agency also constrained its NEPA analysis by gerrymandering the type of habitat considered when evaluating the direct, indirect, and cumulative impacts of CBNG development in the FCPA. This manipulation not only limited the habitat considered, but resulted in flawed conclusions that created additional uncertainty and controversy. See 40 C.F.R (b)(4), (5). Defendants argue that BLM simply changed the criteria it uses to govern the management of elk for the final RMPA, which was within its discretion, and that Plaintiffs complaint focuses only on our disagreement with the change in the agency s approach. See Fed. Defs. Br. at 22. This both ignores the ways in which the agency s analysis was manipulated, as well as misapprehends the fundamental role of NEPA and BLM s duty to take a hard look at all environmental consequences of agency action. Methow Valley, 490 U.S. at See Pls. Br. at 19. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 10

15 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 15 of 30 Regarding BLM s analysis of direct and indirect impacts to elk habitat from Alternative III, the agency constrains its analysis in critical ways. BLM correctly recognized that larger impacts to elk result from a reduction of the herd s effective habitat, rather than from direct habitat loss. AR BLM also identified that elk disruption is a key factor in effective habitat loss, and noted that agency science indicates elk avoided areas within 1.7 miles of oil, natural gas, and CBNG wells and 0.5 mile of roads. AR (citing 2007 Elk Report, AR ). However, [f]or the purposes of analyzing the impact of CBNG development scenarios on elk habitat, effective habitat was modeled only using elk ranges that were 0.5 miles from roads. AR In other words, the agency s effective habitat analysis was limited to impacts from road density, at 0.5 miles; but BLM failed to analyze impacts from development of CBNG wells, which elk avoid by 1.7 miles. BLM s decision to limit analysis to 0.5 miles resulted in a significant, yet undisclosed, reduction in the habitat the agency considered. Accordingly, when analyzing impacts to elk from development in the FCPA, BLM concluded that development authorized by Alternative III would result in a 15% loss of existing effective habitat, a 17% loss of security habitat, and a 9% loss of elk crucial range in the FCPA. AR However, BLM failed to provide data on habitat impacts from CBNG well development, and, thus, we have no idea of the extent that these broader impacts will have on elk habitat in the FCPA. While all parties can agree it is important to understand and model the impacts caused to elk from road development in the FCPA, BLM s failure to also model and analyze the effective habitat impacts from CBNG well development cannot be ignored, and, accordingly, fails to take PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 11

16 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 16 of 30 a hard look at impacts to elk. Critically, excluding analysis of these impacts violates NEPA s cumulative analysis requirements, creating additional uncertainty and controversy. See Grand Canyon Trust, 290 F.3d at 342 ( [The] agency s EA must give a realistic evaluation of the total impacts and cannot isolate a proposed action, viewing it in a vacuum. ). Moreover, when calculating the cumulative impacts of CBNG development on elk in the FCPA, the agency only considers security habitat, 5 or 40,781 acres, rather than all yearlong elk range in the FCPA, which is 78,251 acres in size. See AR , In other words, by manipulating the scope of analysis, none of the development authorized by the RMPA in the remaining 37,470 acres of non-security yearlong habitat in the FCPA is considered in BLM s cumulative analysis. This is a dramatic shift from scientific approach established by the 2007 Elk Report and, subsequently, the agency s Elk Monitoring Plan 6 both of which direct BLM to monitor the impacts of development on all elk habitat. See AR , AR Limiting its analysis to certain habitat ignores BLM s own science, and fails to take the necessary hard look at impacts. Defendants attempt to explain this manipulation by underscoring the importance of herd s security habitat and crucial ranges within the FCPA providing that BLM looked at impacts to the habitats most important to the viability of this elk herd, that these ranges are a 5 Security habitat is defined as all areas within elk ranges that are more than 0.5 miles from a road with a size of 250 acres or more. AR Federal Defendants take issue with Plaintiffs citation to the 2008 Elk Monitoring Plan, AR , providing that this nothing more than a draft document. Fed. Defs. Br. at 18. However, the Elk Monitoring Plan is derivative of the science contained in the 2007 Elk Report, AR , and, even as a draft, contains scientific data used by the agency to guide its early decisionmaking. Moreover, there is no scientific data that supersedes these earlier reports. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 12

17 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 17 of 30 proxy for monitoring impacts to elk habitat, and that regardless of the herd s historical ranges, currently the herd s actual use of habitat now comprises primarily of areas within the FCPA. Wyo. Br. at 18, Lance Br. at 13, Fed. Defs. Br. at 19. Although the agency may have discretion in how it chooses to manage elk impacts and, as guided by science, can focus on the most critical habitat BLM does not have discretion to limit the habitat considered in its analysis based on what the agency thinks is most important. See Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 973 (9 th Cir. 2002) (holding that the scale of analysis used by the Forest Service to consider habitat depletion was arbitrary when the agency failed to explain the scale, and its own scientists stated that the cumulative effects analysis of the species must be addressed at a landscape scale ). Although Plaintiffs certainly agree that security and crucial habitat are critical to the herd s viability, NEPA does not allow the agency to only look at what it considers to be most important, rather, BLM must consider all cumulative impacts to the entire area, including past, present, proposed and reasonably foreseeable actions that have had or are expected to have impacts. TOMAC, 433 F.3d at 864. BLM s failure to perform a true hard look analysis for the full scope of impacts to all elk habitat violates NEPA, and cannot be sustained. Defendants also consistently preach that the agency is owed extreme deference in its decisionmaking, but fail to point out any science that supports BLM s decisions to limit the habitat considered. See, e.g., Fed. Defs. Br. at 16, Wyo. Br. at 14 (citing Nat l Comm. for the New River v. Fed. Energy Regulatory Comm n, 373 F.3d 1323, 1327 (D.C. Cir. 2004) (providing that agency evaluation of scientific data is owed an extreme degree of deference ), Lance Br. at 7 (citing Colo. River Cutthroat Trout v. Salazar, 898 F.Supp.2d 191, 209 (D.D.C. 2012) PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 13

18 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 18 of 30 (providing deference is owed to the science or the methodology the [agency] elects to use )). What these and other courts make clear is that such deference is owed to decisionmaking that is derivative of corresponding scientific guidance. Here, however, BLM has established an elk management regime that disregards its own science in order to facilitate expanded oil and gas development in the FCPA. Under these circumstances no such deference is owed to BLM, and where, as here, significant environmental consequences have been ignored, court intervention is appropriate. See Public Citizen v. National Highway Traffic Safety Admin., 848 F.2d 256, 267 (D.C. Cir. 1988). BLM s failure to take a hard look at all impacts to all elk habitat fundamentally and incurably violates NEPA. See Methow, 490 U.S. at BLM s Performance Based Elk Management Approach Creates Significant Uncertainty and Controversy. BLM s elk management regime relies exclusively upon the adaptive management performance goals identified in Appendix B to protect elk. See AR As identified above, this management approach and the agency s underlying analysis is fundamentally flawed. By manipulating criteria and avoiding science, the agency creates significant uncertainty and controversy regarding the elk herd s viability, requiring the preparation of an EIS. See 40 C.F.R (b)(4), (5). In justification of BLM s performance goals, Defendants focus on the regime s complicated metrics and criteria for herd management, and the presumed deference associated with this type of agency decisionmaking. See Fed. Defs. Br. at However, Defendants reasoning disregards the essential role that agency science is intended to play in the development of resource management criteria conflating the elk management regime adopted by BLM with PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 14

19 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 19 of 30 the agency s hard look analysis of elk impacts, when, in fact, these are two very different functions. Analysis is intended to guide management, not the other way around; and performance based adaptive management goals, no matter how complex, are never a substitute for an agency s hard look at all impacts to elk and their habitat. TOMAC, 433 F.3d at 864. Here, BLM ignored the earlier science on Fortification Creek elk, and the standards for herd health established by the 2007 Elk Report and Elk Monitoring Plan, and instead created an adaptive management plan focused on gerrymandered criteria that was manufactured to facilitate the agency s twin aims of expanded CBNG development in the FCPA while also reaching its desired FONSI. AR ; AR ; AR Defendants fail to identify any science to justify the dramatic shift in the agency s elk management approach, or that supersedes the science of these earlier reports. In fact, the agency s RMPA admits that the 2007 Elk Report is still the prevailing science on impacts to elk from CBNG development. AR Where, as here, the performance goals are premised not on agency science, but were manufactured to reach a predetermined agenda, no such deference is owed. Moreover, such a regime fails to establish a reliable methodology to ensure adequate protection of elk and their habitat, and is therefore arbitrary and capricious. See Fund for Animals v. Babbitt, 903 F.Supp. 96 (D.D.C. 1995). BLM s adaptive management regime is also flawed in that it fails to define what management actions will result once a threshold is exceeded, in contrast to what BLM s science explains is necessary. AR , AR ( Exceeding a threshold value indicates management action is necessary. ). Although Defendants emphasize the importance of an PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 15

20 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 20 of 30 adaptive response, the agency s failure to sufficiently identify even a single possible response to threshold exceedance creates significant uncertainty. Compare, Theodore Roosevelt Cons. P ship v. Salazar, 616 F.3d 497, 516 (D.C. Cir. 2010) (describing an adaptive management plan that incorporates a detailed, thirteen-page list of specific protective measures that the review team is to consider for each drill plan. ). Here, all BLM provides is a list of six recommendations for how the performance goals might be met, and, as an example, suggests, Operators are encouraged to work together. AR Even with adaptive plans, more is required of the agency then the paltry guidance that BLM offers in its chosen management approach. In addition, courts require that the mitigation measures proposed by the agency must be reasonably developed. Here, no such detail is offered. A perfunctory description, or mere listing of mitigation measures, without supporting analytical data, is insufficient to support a finding of no significant impact. National Parks & Conservation Ass n v. Babbitt, 241 F.3d 722, 735 (9 th Cir. 2001). The court, when determining the sufficiency of the mitigation measures, considers whether they constitute an adequate buffer against the negative impacts that may result from the authorized activity. Specifically, [the court] examine[s] whether the mitigation measures will render such impacts so minor as to not warrant an EIS. Id.; see also, Hill v. Boy, 144 F.3d 1446, 1451 (11 th Cir. 1998) (explaining that where an agency relies on an assumption to reach a FONSI, the assumption must be supported by substantial evidence). Here, BLM s management plan is not based on science, it is scant on detail, and it fails to explain how impacts to elk will be mitigated to below a level of significance. These failures create uncertainty and controversy, requiring the preparation of an EIS. See 40 C.F.R (b)(4), (5). PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 16

21 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 21 of BLM s Chosen Alternative Will Result in Significant Impacts to Elk Habitat and Population. In addition to BLM s failure to take a hard look at impacts by gerrymandering the habitat considered, the agency s decision also obscures the true significance of impacts to elk habitat and population, and ignores the agency s scientifically based significance thresholds. For major federal actions significantly affecting the quality of the human environment, federal agencies must prepare an EIS. 42 U.S.C. 4332(2)(C); 40 C.F.R A federal action affects the environment when it will or may have an effect on the environment. 40 C.F.R (emphasis added). If any significant environmental impacts might result from the proposed agency action then an EIS must be prepared before the [agency] action is taken. Sierra Club v. Peterson, 717 F.2d at Here, BLM s proposed action may result in significant impacts to elk habitat and population, requiring the preparation of an EIS. Based on agency science in the 2007 Elk Report, BLM s Elk Monitoring Plan established thresholds for what the agency would consider biologically significant impacts to elk population and habitat. WGFD called these thresholds a requirement for dealing with the elk issue, and that they are the heart and soul of development implementation. AR Similarly, BLM recognized that without the elk monitoring plan, the agency was [u]nlikely to get to [a] FONSI without it since it is the principle feedback mechanism to determine the threshold of significance. AR For habitat, considering the elk herd s yearlong range, BLM determined that the biologically significant threshold would be reached if: [d]irect habitat loss exceeded 20% from current levels, or [h]abitat effectiveness (indirect habitat loss) decreased more than 20% from current levels. AR For population, BLM identified an overall PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 17

22 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 22 of 30 20% population reduction, as measured from the herd management objective (150 head), as that level of impact that would be considered biologically significant. AR As noted in Plaintiffs opening brief, these straightforward thresholds were abandoned for the performance-based adaptive management goals outlined in Appendix B, discussed above. AR Defendants maintain that Appendix B fulfills the same role as the biologically significant thresholds previously established by BLM, and that the performance goals are merely an evolution in agency management deserving of deference. Fed. Defs. Br. at This is demonstrably untrue. Compare, AR , AR Although Appendix B similarly uses a 20% loss for population and certain habitat as its criteria, these thresholds diverge from the guidance established by earlier BLM science by fundamentally manipulating the criteria for significance, as described above. Critically, the mechanism created in Appendix B ensures that the proposed action does not exceed BLM s new thresholds for significance, in violation of NEPA s hard look. Using the agency s original, scientifically based significance thresholds, BLM s proposed action would result in significant impacts to both elk habitat and population, requiring the preparation of an EIS. Moreover, these violations were perpetuated in BLM s approval of the Queen B POD, resulting in direct, indirect and cumulative impacts, as detailed in Plaintiffs opening brief. a. BLM s Proposed Action Will Cause Significant Impacts to Elk Habitat, Requiring the Preparation of and EIS. Defendants argue that because the performance goals of Appendix B focus on a subset of habitat within the FCPA rather than the broader habitat protection thresholds established by the 2007 Elk Report and subsequent Elk Monitoring Plan this earlier science cannot be used for a PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 18

23 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 23 of 30 comparative analysis of impacts to elk habitat in the FCPA. See Fed. Defs. Br. at 20 n.6. This is only true to the extent that BLM failed to provide data for the excluded habitat. As a result, BLM created a dynamic whereby it is impossible to determine the exact percentage of habitat loss exceeding the 20% threshold for either direct habitat loss or habitat effectiveness. Defendants argument, however, further underscores the importance of this missing analysis, and, correspondingly, BLM s failure to take a hard look by excluding it. This missing analysis which agency science deemed necessary for understanding impacts to elk habitat also results in uncertainty and controversy, requiring an EIS. See 40 C.F.R (b)(4), (5). While this myopic approach may serve to obscure the scientifically based thresholds for direct and indirect impacts, the aggregation of cumulative impacts to elk habitat, as detailed above, does reveal an exceedance of biologically significant thresholds to elk crucial and security habitat. For example, considering the cumulative impacts of Alternative III, the proposed action would result in a 20% loss of crucial habitat and a 33% loss of security habitat when the southern range is factored in, as BLM science intends. See AR These impacts are significant, and require BLM to prepare an EIS. The agency s failure to do so was arbitrary and capricious. b. BLM s Proposed Action Will Cause Significant Impacts to Elk Population, Requiring the Preparation of an EIS. Similarly, BLM failed to provide data on the impacts that Alternative III would have on the elk herd s population as both BLM s science, and even the Appendix B performance goals PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 19

24 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 24 of 30 acknowledge is essential. See AR , AR , AR In avoiding this analysis, the agency provided that [a]nticipated changes in elk population numbers are difficult, if not impossible, to predict. AR Instead, BLM has indicated that loss of habitat, in the form of effective habitat or security habitat, would serve to evaluate management actions, and these are the metrics used in the present analysis. AR Yet, the agency later provided that while [l]oss of habitat is measurable it is not possible to translate this information directly to changes in elk population estimates. AR In other words, the agency s RMPA acknowledges that elk population is a critical element in the broader analysis regarding the herd s health, but does nothing to quantify impacts. This void of analysis fails to take a hard look at impacts to elk population, creating controversy and uncertainty. See 40 C.F.R (b)(4), (5). Nevertheless, while the RMPA states that this population analysis is impossible, the 2007 Elk Report in fact quantified population impacts based on criteria that in many respects mirror the activity authorized by BLM s proposed action. Defendants attempt to distinguish the population science of the 2007 Elk Report by claiming that it was based on an unrestricted development scenario that is different from the proposed action. Fed. Defs. Br. at 28. However, the quantified science in the 2007 Elk Report was not just based on projections. Rather, it identified impacts to the elk population from existing CBNG development surrounding the FCPA. For example, BLM concluded that existing development had already concentrated [elk] 7 BLM science indicates that a 20% loss in population would result in a biologically significant impact, whereas BLM s performance goals aim to maintain elk populations within 80% of the population objective. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 20

25 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 25 of 30 in the northern half of the FCA including the [wilderness study area ( WSA )], and that the herd is being pushed into the WSA by the current level of mineral development. AR , AR Thus, as consistent with this data, it is logical to anticipate that any additional development in the FCPA will continue this trend of isolating elk to within the WSA. Defendants also attempt to distinguish BLM s science by arguing, it was evaluating a scenario proposed by industry under which BLM would authorize development of the entire FCPA (with the exception of the WSA) at one well for every 80 acres. Fed. Defs. Br. at 28. However, this scenario is not that different from what BLM ultimately authorized. Although BLM s chosen Alternative III takes some steps to curtail development, BLM still assumes a development scenario based on [a]n 80-acre well spacing, excluding non-federal minerals and the Wilderness Study Area (WSA). AR In addition, while BLM originally intended to restrict development by geographic phase, the oil and gas industry opposed these restrictions and BLM s chosen alternative abandoned phased-development by allowing concurrent development across the entire FCPA if performance standards are met. AR In other words, the proposed action doesn t deviate as substantively from the 2007 Elk Report as Defendants suggest, and, while not perfect, the population impact projections from the 2007 Elk Report provide a reasonable gauge for impacts under BLM s proposed action. As provided in Plaintiffs opening brief, the 2007 Elk Report identifies dramatic impacts to elk population, concluding that the WSA an area where existing development is already concentrating elk may be able to maintain 46 to 64 elk, with an effective population from 29 to 41 elk. AR ; see also AR (admitting that Alternative III may cause elk PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 21

26 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 26 of 30 overcrowding in the WSA). By identifying the relationship between the concentration of elk into the WSA and impacts to the herd s population, BLM science reveals that there may be significant impacts to elk population, which is enough to require an EIS. Irrespective of this, the agency s failure to take a hard look at population impacts despite BLM s clear capacity to do so creates uncertainty and controversy in its analysis, which also requires the preparation of an EIS. See 40 C.F.R (b)(4), (5). B. BLM Failed to Take a Hard Look at Impacts to Water Resources and Failed to Justify its Decision to Forgo an EIS. As provided in Plaintiffs opening brief, and as admitted by Defendants, BLM s proposed action will result in significant impacts to water resources. For example, BLM describes that millions of gallons of produced water will be directly discharged each day, which would have a major impact on stream channels, as well as result in impacts to stream morphology, increased sedimentation loading, and altered surface and groundwater chemistry are expected to increase and result in major changes to water resources in the FCPA. 8 AR , AR Defendants, recognizing these impacts and also citing water resource impacts in the 2003 Powder River Basin FEIS, to which the agency tiered its RMPA analysis suggest that this is evidence of BLM s hard look at water resource impacts. See Fed. Defs. Br. at However, this thin reasoning fails to acknowledge the critical ways the agency s analysis is lacking. As warned by the U.S. EPA, [w]ithout effective and demonstrable mitigation measures 8 Additional impacts to water resources are detailed in the U.S. Geological Survey report, Assessment of Potential Effects of Water Produced from Coalbed Natural Gas Development on Macroinvertebrate and Algal Communities in the Powder River and Tongue River, Wyoming and Montana, AR As provided in Plaintiffs opening brief, BLM failed to consider the scientific findings of this report. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 22

27 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 27 of 30 to prevent unacceptable impacts to water chemistry and water resources, a Finding of No Significant Impact may be difficult to support. AR While both the RMPA and FEIS similarly recognize the importance of mitigation to avoid significant ground and surface water impacts and the RMPA relies on mitigation to avoid an EIS neither detail how mitigation would render water resource impacts below a level of significance. AR ; see National Parks, 241 F.3d at 735. Both documents, however, specifically note the importance of sitespecific mitigation analysis for water resource impacts. AR , AR Here, the detailed mitigation analysis should have been provided, if not before, in the Queen B POD, which is a site-specific project tiering to the RMPA. But, like the RMPA and FEIS, the Queen B POD EA is devoid such analysis. Defendants respond by attempting to isolate the cumulative impacts of the Queen B POD, then marginalizing the POD s contribution to water resource impacts in the FCPA further explaining that the operator would be required to apply for a WPDES permit. See Fed. Defs. Br. at 33. This type of shell game analysis misunderstands the fundamental role of NEPA. See 40 C.F.R , (b)(7); Grand Canyon Trust, 290 F.3d at 342. BLM has never provided the type of detailed analytical data or description of how mitigation measures will render water resource impacts so minor as to not warrant an EIS for the FCPA. National Parks, 241 F.3d at 735; see also Northern Plains Resource Council v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9 th Cir. 2011). This void of analysis is insufficient to support a finding of no significant impact, and, here, BLM s failure to take a hard look at these water resource mitigation measures fails to justify the agency s decision to forgo an EIS. PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 23

28 Case 1:12-cv RMC Document 38 Filed 05/29/13 Page 28 of 30 C. BLM Failed to Take a Hard Look at Impacts to Soils, Slopes, and Reclamation, and Failed to Justify its Decision to Forgo an EIS. BLM identifies significant concerns regarding the soils, slopes, and reclamation of the FCPA, admitting that CBNG development will permanently change the soil profile, and that almost 60% of the FCPA contains soils with poor reclamation suitability. AR , AR While Alternative III would restrict some CBNG development, BLM s performance based soil reclamation standards provide exceptions to these restrictions. AR Defendants rely on what they describe as BLM s comprehensive consideration and disclosure of potential impacts to justify this approach, but fail to account for the misleading and vague nature of the agency s performance based plan, which, although requiring site-specific mitigation for exception approval, fails to provide the requisite analysis to support this approach. See National Parks, 241 F.3d at 735 (requiring detailed justification to support a finding of no significant impact). BLM s failure to provide detailed information regarding site-specific mitigation creates uncertainty and controversy, requiring an EIS. See 40 C.F.R (b)(4), (5). II. BLM FAILED TO CONSIDER A TRUE NO ACTION ALTERNATIVE As Plaintiffs explain in our opening brief, BLM violated NEPA by failing to properly consider and analyze a true No Action Alternative, thereby unlawfully distorting the agency s comparative analysis of the two action alternatives, creating uncertainty and controversy. Defendants concede that lease stipulations which are necessary to establish a true comparative baseline were not included in the BLM s analysis, rationalizing that [d]oing so PLAINTIFFS REPLY/RESPONSE: Civ. No. 1:12-cv RMC 24