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`
`WESTERN WATERSHEDS PROJECT, and
`CENTER FOR BIOLOGICAL DIVERSITY,
`
`
`
`
`
`RYAN K. ZINKE, Secretary of Interior; DAVID
`BERNHARDT, Deputy Secretary of Interior; and
`UNITED STATES BUREAU OF LAND
`MANAGEMENT, an agency of the United States,
`
`
`
`
`
`STATE OF WYOMING; WESTERN ENERGY
`ALLIANCE,
`
`
`
`
`
`Plaintiffs,
`
`vs.
`
`Defendants,
`
`and,
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`Defendants-Intervenors.
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 1 of 62
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`UNITED STATES DISTRICT COURT
`DISTRICT OF IDAHO
`
`
`Case No.: 1:18-cv-00187-REB
`
`MEMORANDUM DECISION AND
`ORDER RE:
`
`PLAINTIFFS’ MOTION FOR
`PARTIAL SUMMARY JUDGMENT
`(PHASE ONE)
`(Dkt. 135)
`
`FEDERAL DEFENDANTS’ MOTION
`FOR SUMMARY JUDGMENT
`(Dkt. 140)
`
`DEFENDANT-INTERVENORS’
`MOTION FOR PARTIAL SUMMARY
`JUDGMENT
`(Dkt. 148)
`
`
`Pending before the Court are the following motions: (1) Plaintiffs’ Motion for Partial
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`Summary Judgment (Phase One) (Dkt. 135); (2) Federal Defendants’ Motion for Partial
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`Summary Judgment (Phase One) (Dkt. 140); and (3) Defendant-Intervenors’ Motion for Partial
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`Summary Judgment (Dkt. 148). The Court has heard oral argument from counsel and has
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`carefully considered the record. Being fully advised, the Court enters the following
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`Memorandum Decision and Order.
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`I. SUMMARY OF DECISION
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`
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`The Bureau of Land Management (“BLM”) is a federal agency that, among other things,
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`handles the leasing of oil and gas rights on certain federal lands. The procedures for doing so
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`changed in 2018 with the implementation of a new Instruction Memorandum (“IM”), supplying
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`MEMORANDUM DECISION AND ORDER - 1
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 2 of 62
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`changed instructions to the agency’s offices about how to handle such leases. This new direction
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`is known as IM 2018-034.
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`
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`Plaintiffs Western Watersheds Project and Center for Biological Diversity (collectively
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`“WWP” or “Plaintiffs”) contend that IM 2018-034 unlawfully restricts public participation in
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`and environmental review of BLM oil and gas lease decisions that affect and threaten sage-
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`grouse populations and habitats across the western United States. WWP asks the Court to (1)
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`vacate the challenged provisions of IM 2018-034 and reinstate the rules previously in effect
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`under IM 2010-117 (issued during the prior presidential administration), until BLM changes
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`these procedures through notice-and-comment rulemaking; and (2) vacate the leases and
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`underlying decision documents for those lease sales utilizing IM 2018-034.
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`
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`Soon after the Complaint was filed, the State of Wyoming (“Wyoming”) and an oil and
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`gas industry association known as Western Energy Alliance (“WEA”) (collectively “Defendant-
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`Intervenors”), asked to intervene in the lawsuit, which the Court allowed.1
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`
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`Initially, the Court conducted a hearing to consider WWP’s request for a preliminary
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`injunction. On September 21, 2018, under the legal standards that apply to preliminary
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`injunctions and the requirements of federal law found in FLPMA, NEPA, and the APA, the
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`Court concluded that WWP showed a substantial case for success on the merits of their claims
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`and that irreparable harm was likely to result in the absence of a preliminary injunction. Further,
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`
`1 Plaintiffs’ First Amended Complaint added the Normally Pressured Lance Natural Gas
`Development Project (“NPL Project”) to the “Final Actions” collectively challenged in the First,
`Second, and Third Claims for Relief; it also added a new Seventh Claim for Relief alleging that
`the NPL Project’s Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”)
`were deficient under the Federal Land Policy and Management Act (“FLPMA”), the National
`Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”). The
`proponent of the NPL Project, Jonah Energy LLC (“Jonah”), then moved to intervene, which the
`Court also allowed, but later severed WWP’s NPL Project-related claims and transferred them to
`the United States District Court for the District of Wyoming. See generally 7/9/19 MDO (Dkt.
`150).
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`MEMORANDUM DECISION AND ORDER - 2
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`
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 3 of 62
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`the Court concluded, after weighing the equities and the public interest, that such equities tipped
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`in favor of, and the public interest was best served by, issuing a preliminary injunction.
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`
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`The preliminary injunction required that, for oil and gas leases scheduled for the fourth
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`quarter of 2018 and thereafter, BLM must (1) re-implement certain provisions contained in IM
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`2010-117 as to the nature of, and time periods for, public involvement and protest in the oil and
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`gas leasing process; and (2) discontinue the use of conflicting procedures contained in IM 2018-
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`034. In general, these interim requirements allowed a fuller opportunity for public involvement
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`and comment in BLM’s decision-making processes affecting potential oil and gas leases on
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`federal lands in areas of federally-recognized sage-grouse habitat – at least until the merits of
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`WWP’s claims could be adjudicated and resolved.
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`The preliminary injunction did not apply to BLM oil and gas lease procedures on lands
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`that are not within federally-recognized boundaries encompassing sage-grouse habitat
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`management areas; nor did it apply to oil and gas leases that had been the subject of sales already
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`conducted up to that point in time or that were currently scheduled in the remainder of the third
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`quarter of 2018. Federal Defendants did not appeal the Court’s preliminary injunction order, but
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`instead postponed upcoming December 2018 lease sales in sage-grouse habitats to follow the
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`procedures of IM 2010-117.
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`
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`Following the filing of the Administrative Record for IM 2018-034 and the pertinent
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`lease sales, on October 15, 2019, the Court conducted a hearing to consider the parties’ cross-
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`motions for summary judgment. Under the legal standards that apply to motions for summary
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`judgment (alongside injunctions generally and, again, FLPMA, NEPA, and the APA), the Court
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`is persuaded that the rationale behind issuing the preliminary injunction remains solid and, as
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`such, enters partial summary judgment in WWP’s favor. In doing so, the Court finds that IM
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`2018-034’s at-issue provisions are set aside and replaced by IM 2010-117’s corresponding
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`MEMORANDUM DECISION AND ORDER - 3
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 4 of 62
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`provisions until BLM changes these procedures through notice-and-comment rulemaking. As
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`with the preliminary injunction, however, this relief applies only to oil and gas lease sales
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`contained in whole or in part within sage-grouse habitat management areas. Additionally, the
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`June and September 2018 oil and gas lease sales in Nevada, Utah, and Wyoming that applied IM
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`2018-034 are set aside.
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`II. BACKGROUND
`
`
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`The Court has previously described the general contours of this case. See (Dkts. 54, 66,
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`74, 111, 150).2 Broadly speaking, WWP challenges what it contends are unlawful actions by the
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`Trump Administration, through Federal Defendants, to promote and expedite oil and gas leasing
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`on public lands. WWP alleges that the manner and fact of such leasing “will adversely impact
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`essential habitats and populations across the range of the greater sage-grouse . . ., and violate
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`bedrock environmental laws including [FLPMA], [NEPA], and the [APA].” First Am. Compl.
`
`¶ 1 (Dkt. 78). More specifically, WWP alleges that Federal Defendants have issued a series of
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`orders, scientific reports, and directives that cast aside and disregard previously-implemented
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`protections for sage-grouse populations. At the same time, contends WWP, such actions also
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`limit or preclude opportunities for public involvement during the oil and gas leasing process –
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`materializing in five “final” lease sales that impact sage-grouse habitats (the June 2018 Nevada,
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`September 2018 Nevada, June 2018 Wyoming, September 2018 Wyoming, and September 2018
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`Utah lease sales, collectively identified as the “Phase One” lease sales). See id. at ¶¶ 1a, 225a-
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`225ll; see also WWP’s Mem. ISO MPSJ, p. 3 (Dkt. 135-1).
`
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`2 Accordingly, for reasons of efficiency and consistency, the Court will integrate those
`portions of its September 21, 2018 Memorandum Decision and Order and Preliminary Injunction
`where appropriate, particularly when understanding that it previously examined in depth WWP’s
`likelihood of success on the merits alongside similar (if not identical) arguments renewed here,
`with the Court now moving on to the actual merits of WWP’s claims in the context of the
`parties’ cross-motions for summary judgment.
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`MEMORANDUM DECISION AND ORDER - 4
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`
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 5 of 62
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`According to WWP, these leasing actions violate the 2015 Sage-Grouse Plan
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`Amendments to BLM Resource Management Plans, FLPMA, NEPA, and the APA. See First
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`Am. Compl., ¶¶ 276-307 (Dkt. 78). Further, WWP asserts, two recently-implemented BLM IMs
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`revised previously existing BLM leasing processes without any public procedures (notice and
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`comment) or environmental review: (1) IM 2018-026, which overrides the “prioritization”
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`requirement of the 2015 Sage-Grouse Plan Amendments (prioritizing oil and gas leasing outside
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`of identified sage-grouse habitat); and (2) IM 2018-034, which impacts environmental analyses
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`of oil and gas leasing and development decisions, while limiting public notice and involvement
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`in those decisions. See id. at ¶¶ 98-112. The pending motions pertain to IM 2018-034 under
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`WWP’s Fourth and Fifth Claims for Relief.
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`
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`IM 2018-034, issued on January 31, 2018, claims this purpose:
`
`Purpose: This Instruction Memorandum (IM) sets out the policy of the Bureau of
`Land Management (BLM) to simplify and streamline the leasing process to
`alleviate unnecessary impediments and burdens, to expedite the offering of lands
`for lease, and to ensure quarterly oil and gas lease sales are consistently held in
`accordance with the Mineral Leasing Act (30 U.S.C. § 226), Executive Order
`13783, and Secretary Order 3354.
`
`
`IM 2018-034, “Purpose” p. 1 (BLMW828). It “supersedes existing policy” contained in IM
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`2010-117 and replaces “any conflicting guidance or directive found in the BLM Manual or
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`Handbook.” Id.
`
`
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`According to WWP, BLM issued IM 2018-034 without any public notice, comment, or
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`environmental review, and directs BLM offices to discard procedures under the previous IM
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`2010-117 for environmental reviews and limit public involvement in oil and gas leasing
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`decisions. Such action, WWP contends, violates FLPMA, NEPA, and the APA. WWP requests
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`that the Court vacate the challenged provisions of IM 2018-034 and the leases issued in reliance
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`on IM 2018-034, while reinstating corresponding provisions from IM 2010-117 until BLM
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`MEMORANDUM DECISION AND ORDER - 5
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`
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 6 of 62
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`completes a proper notice-and-comment rulemaking to govern its lease review process – in
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`particular:
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` Vacate IM 2018-034, Section III.A – “Parcel Review Timeframes” and
`reinstate IM 2010-117, Section III.A – “Parcel Review Timeframes”;
`
` Vacate IM 2018-034, Section III.B.5 – “Public Participation” and reinstate IM
`2010-117, Section III.C.7 – “Public Participation”;
`
`
`
`
`
` Vacate IM 2018-034, Section III.D – “NEPA Compliance Documentation” and
`reinstate IM 2010-117, Section III.E – “NEPA Compliance Documentation”;
`and
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` Vacate IM 2018-034, Section IV.B – “Lease Sale Parcel Protests” and reinstate
`IM 2010-117, Section III.H – “Lease Sale Parcel Protests.”
`
`
`See WWP’s Mem. ISO MPSJ, p. 19 (Dkt. 135-1).
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`
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`A comparison of the pertinent language from the two IMs (with supplied emphases)
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`illustrates the differences in their respective templates for oil and gas leasing:
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`Reinstate IM 2010-117
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` §
`
` III.A. – Parcel Review Timeframes
`
`
`State offices will continue to hold sales four
`times per year, as required by the Mineral
`Leasing Act . . ., when eligible lands are
`determined by the state office to be
`available for leasing. However, state
`offices will develop a sales schedule with an
`emphasis on rotating lease parcel review
`responsibilities among field offices
`throughout the year to balance the
`workload and to allow each field office to
`devote sufficient time and resources to
`implementing the parcel review policy
`established in this IM. State offices will
`extend field office review timeframes, as
`necessary, to ensure there is adequate time
`for the field offices to conduct
`comprehensive parcel reviews.
`
`
`
`Vacate IM 2018-034
`
`
` §
`
` III.A – Parcel Review Timeframes
`
`
`State/field offices are required, by statute, and
`implementing regulation, to hold quarterly
`lease sales, when eligible lands are available
`for lease. Lease sales should occur in the last
`month of each calendar year quarter.
`
`The BLM accepts Expressions of Interest (EOI)
`in lands for potential leasing through the
`National Fluids Lease Sale System (NFLSS).
`Members of the public submit EOIs
`electronically to the BLM using NFLSS. Once
`submitted, the public can view all EOIs
`submitted to the BLM. The EOI submitter can
`track its EOI status using the EOI-specific
`tracking number provided by NFLSS. NFLSS
`can display the dates when the EOI was
`submitted to, and accepted by, the BLM, and its
`status, such as pending review by the state
`
`MEMORANDUM DECISION AND ORDER - 6
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 7 of 62
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`[No timeframe for parcel review]
`
` §
`
` III.C.7 – Public Participation
`
`
`State and field offices will provide for
`public participation as part of the review of
`parcels identified for potential leasing
`through the NEPA compliance
`documentation process (see section III.E).
`State and field offices will identify groups
`and individuals with an interest in local
`BLM oil and gas leasing, including surface
`owners of split estate lands where Federal
`minerals are being considered for leasing.
`Interested groups, individuals, and
`potentially affected split estate surface
`owners will be kept informed of field office
`
`office, field office, or surface management
`agency. The BLM also uses the NFLSS to
`describe lands that the BLM has identified for
`leasing consideration. NFLSS provides a link
`to upcoming lease sales. The BLM will identify
`in NFLSS a deadline for receiving EOIs for
`each upcoming sale. The deadline will be six
`months prior to the lease sale month. This EOI
`deadline also will be posted on the state office
`website along with the upcoming lease sale
`schedule.
`
`The timeframe for parcel review for a specific
`lease sale is to be no longer than 6 months.
`This will include adjudicating and creating the
`preliminary parcel list from all timely received
`EOIs and the other lands identified for leasing
`consideration in the NFLSS, recognizing there
`will be exceptions due to unforeseen
`circumstances, including delays associated with
`SMA consent.
`
`BLM will no longer use a rotating schedule
`for lease sales, as described in IM No. 2010-
`117. Each state office will review all lands that
`are identified in EOIs that were submitted
`before the EOI cutoff date for a particular
`quarterly lease sale and will offer all parcels
`determined to be eligible and available within
`the state office’s jurisdiction
`
`
` §
`
` III.B.5 – Public Participation
`
`
`State and field offices may provide for public
`participation during the NEPA process as part
`of the review of parcels identified for potential
`leasing
`
`MEMORANDUM DECISION AND ORDER - 7
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 8 of 62
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`leasing and NEPA activities through
`updated websites and email lists, and will
`be invited to comment during the NEPA
`compliance process.
`
`
` §
`
` III.E – NEPA Compliance Documentation
`
`
`The IDPR Team will complete site-specific
`NEPA compliance documentation for all
`BLM surface and split estate lease sale
`parcels. The IDPR Team may include the
`review of multiple parcels in a single
`document. Site-specific NEPA compliance
`documentation must incorporate
`appropriate information gained through the
`lease parcel review process described
`above. In accordance with this IM, the
`NEPA compliance documentation for oil
`and gas leasing must include an
`opportunity for public review, as described
`below, and the field office must verify that
`all legal requirements have been met (e.g.,
`ESA and NHPA).
`
`If, through the lease parcel IDPR Team
`review process, the authorizing official
`confirms that the proposed leasing action is
`adequately analyzed in an existing NEPA
`document, such as that prepared during the
`MLP process, and is in conformance with
`the approved RMP, a Determination of
`NEPA Adequacy (DNA) may be used to
`document NEPA compliance for the leasing
`decision . . . . Although not required by
`law or regulation, field offices will provide
`a 30-day public review and comment
`period for the DNA. After consideration of
`any public comments received on the
`document, the field office will either
`finalize the DNA or initiate other
`appropriate NEPA compliance review. It
`is expected that the DNA process will only
`be appropriate in cases where the existing
`NEPA documentation has adequately
`incorporated the most current program-
`specific guidance. If a DNA is not
`
` §
`
` III.D – NEPA Compliance Documentation
`
`
`The state/field office will determine the
`appropriate form of NEPA compliance
`documentation for all lease sale parcels on
`BLM-managed lands, including parcels for
`federal subsurface minerals in split estate
`lands.
`
`If, through the lease parcel review process, the
`authorized officer confirms that the proposed
`leasing action has been adequately analyzed in
`existing NEPA document(s) and is in
`conformance with the approved RMP, a
`Determination of NEPA Adequacy (DNA) will
`be used to document NEPA compliance for the
`leasing decision. If the authorized officer
`deems additional analysis to be necessary, then
`the BLM can prepare an Environmental
`Assessment (EA) or Environmental Impact
`Statement (EIS), as appropriate.
`
`If the BLM concludes that a DNA will
`adequately document that existing NEPA
`analysis is sufficient to support the proposed
`action and the action is consistent with the
`RMP, no further public comment period is
`required for the DNA.
`
`The State Director or the officer with delegated
`decision-making authority will use the
`information provided by the field office
`authorized officer to determine which parcels to
`include on an upcoming lease sale.
`
`MEMORANDUM DECISION AND ORDER - 8
`
`
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 9 of 62
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`appropriate, then the field office will
`determine the appropriate NEPA
`compliance documentation (e.g.,
`environmental assessment (EA) or
`environmental impact statement (EIS)) to be
`prepared.
`
`Most parcels that the field office determines
`should be available for lease will require
`site-specific NEPA analysis. This analysis
`will typically take the form of an EA, which
`would be tiered, as appropriate, to the
`RMP/EIS or a MLP/EA or EIS, if one has
`been completed for any of the parcels.
`Scoping for these EAs is optional; however,
`the interdisciplinary review of lease sale
`parcels will provide input on the issues,
`impacts, and potential alternatives to be
`addressed in the EA. The EA will analyze a
`no action alternative (no leasing), a
`proposed leasing action (leasing the
`parcel(s) in conformance with the land use
`plan), and any alternatives to the proposed
`action that may address unresolved
`resource conflicts. In cases where the field
`office determines that the necessary terms
`and conditions under which leasing would
`be appropriate are not in conformance with
`the RMP, it will be necessary to amend the
`RMP before leasing is appropriate. If it is
`necessary to amend the RMP, the leasing
`EA (or EIS) must either meet the standards
`for NEPA documentation to support a plan
`amendment . . ., or the affected lease
`parcels must be withdrawn or deferred from
`leasing until a plan amendment or revision
`can be completed at a later date.
`
`Although not required by law or
`regulation, field offices will provide a 30-
`day public review and comment period for
`the EA and unsigned Finding of No
`Significant Impact (FONSI) of oil and gas
`leasing before forwarding the leasing
`recommendation to the State Director . . . .
`Note: Plan amendments are subject to
`additional public involvement and protest
`
`MEMORANDUM DECISION AND ORDER - 9
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`
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 10 of 62
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`requirements . . . . The field office will
`finalize the EA and FONSI considering any
`public comment received on those
`documents. If a FONSI is not warranted,
`the field office may recommend that the
`parcel be withheld from leasing or that an
`EIS be prepared to address the site-specific
`issues in compliance with NEPA
`
`
` III.H – Lease Sale Parcel Protests
`
` §
`
` §
`
` IV.B – Lease Sale Parcel Protests
`
` A
`
` 10-day public protest period will begin the
`day the sale notice is posted, along with
`applicable NEPA documentation. State offices
`should attempt to resolve protests in a signed
`decision before the sale of the protested
`parcels. Parcels subject to protests that are not
`resolved (i.e., pending protests) will be offered
`for lease sale. A decision to deny or dismiss a
`protest will advise the protesting parties of their
`right to appeal to the Interior Board of Land
`Appeals (IBLA) and will state that an appeal
`will not automatically halt the auction process.
`
`The number of parcels protested and the status
`of the protests (i.e., protests dismissed, denied,
`upheld, or pending) must be publicly posted the
`day before the sale starts on the BLM state
`office website and the internet auction website
`so that bidders understand the protest status of
`each parcel. Protests upheld should be posted
`on the state office website and the NFLSS, using
`normal processes with amendments/notices to
`withdraw the parcel, no later than the day
`before the sale starts, and if applicable, on the
`online leasing website for the sale no later than
`the day before the sale starts.
`
`[Public notice of the sale is to be given 45 days
`prior to the sale § IV.A]
`
`
` A
`
` 30-day protest period will begin the day
`the sale notice is posted, as it has in the
`past. The earlier posting of the sale notice
`will provide the state and field offices with
`at least 60 days to review protests before
`the oil and gas lease sale. The process
`outlined in this IM – which includes site-
`specific parcel analysis and increased
`public participation – will help identify,
`address, and resolve most issues before the
`lease sale. When possible, state offices
`should attempt to resolve protests before the
`sale of the protested parcels. Protests that
`are not resolved do not prevent bidding on
`protested parcels at the auction. Protest
`decisions should advise the protesting
`parties of their right to appeal denied
`protests to the Interior Board of Land
`Appeals (IBLA), but that appeals will not
`automatically halt the auction or issuance
`of leases.
`
`[Public notice of the sale is to be given 90
`days prior to the sale § III.G]
`
`
`Compare IM 2018-034 (BLMW828-32), with IM 2010-117 (BLMW450-60) (emphasis added)
`
`(internal citations omitted); see also, e.g., First Am. Compl. at ¶¶ 105-112 (Dkt. 78).
`
`MEMORANDUM DECISION AND ORDER - 10
`
`
`
`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 11 of 62
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`III. LEGAL STANDARDS
`
`A.
`
`Administrative Procedure Act (“APA”)
`
`
`
`Federal agency compliance with NEPA and FLPMA is reviewed under the APA (neither
`
`NEPA nor FLPMA provides a private right of action). See Ctr. for Biological Diversity v. U.S.
`
`Dep’t of Interior, 581 F.3d 1063, 1070 (9th Cir. 2009); Earth Island Inst. v. U.S. Forest Serv.,
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`351 F.3d 1291, 1300 (9th Cir. 2003). Under the APA, an agency action must be upheld unless it
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`is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
`
`U.S.C. § 706(2)(A).3 “A rule is arbitrary and capricious ‘if the agency has relied on factors
`
`which Congress has not intended it to consider, entirely failed to consider an important aspect of
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`the problem, offered an explanation for its decision that runs counter to the evidence before the
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`agency, or is so implausible that it could not be ascribed to a difference in view or the product of
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`agency expertise.’” Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir.
`
`2010) (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
`
`U.S. 29, 43 (1983)).
`
`
`
`“[T]he touchstone of ‘arbitrary and capricious’ review under the APA is ‘reasoned
`
`decision-making.’” Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 1061,
`
`1080 (9th Cir. 2019) (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52). Courts will sustain an
`
`agency action if the agency has “examine[d] the relevant data and articulate[d] a satisfactory
`
`explanation for its action including a ‘rational connection between the facts found and the choice
`
`made.’” Id. (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation omitted)).
`
`This standard also applies to how an agency considers and responds to “significant comments”
`
`
`3 The APA goes on to highlight additional grounds for overturning agency actions,
`including, inter alia, agency actions “in excess of statutory jurisdiction, authority, or limitations,
`or short of statutory right” or “without observance of procedure required by law.” 5 U.S.C.
`§ 706(2)(C)-(D).
`
`MEMORANDUM DECISION AND ORDER - 11
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`
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 12 of 62
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`that raise points that could change a proposed rule. Id. (quoting Am. Mining Congress v. EPA,
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`965 F.2d 759, 771 (9th Cir. 1992) (internal quotation omitted)).
`
`
`
`Summary judgment is appropriate where “the movant shows that there is no genuine
`
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
`
`R. Civ. P. 56(a). However, in a case involving review of a final agency action under the APA,
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`the court’s role is limited to reviewing the administrative record, and the standard set forth in
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`Rule 56 does not apply. See Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191,
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`200 (D.D.C. 2012) (citing Catholic Health Initiatives v. Sebelius, 658 F. Supp. 2d 113, 117
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`(D.D.C. 2009), rev’d on other grounds, 617 F.3d 490 (D.C. Cir. 2010)). “Under the APA, it is
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`the role of the agency to resolve factual issues to arrive at a decision that is supported by the
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`administrative record, whereas ‘the function of the district court is to determine whether or not as
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`a matter of law the evidence in the administrative record permitted the agency to make the
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`decision it did.’” Id. (citation omitted); see also Occidental Eng’g Co. v. Immigration &
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`Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985). Summary judgment is thus a mechanism
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`for deciding, as a matter of law, whether the agency action passes muster under the APA. See
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`N.w. Motorcycle Ass’n v. U.S. Dep’t Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994); Occidental
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`Eng’g, 753 F.2d at 769-70.
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`In deciding whether an agency’s action was arbitrary and capricious, courts should be
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`“highly deferential” to the agency’s decision, Providence Yakima, 611 F.3d at 1190, and not
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`“substitute [the court’s own] judgment for that of the agency.” J & G Sales Ltd. v. Truscott, 473
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`F.3d 1043, 1051 (9th Cir. 2007). “[C]ourts will ‘uphold a decision of less than ideal clarity if the
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`agency’s path may reasonably be discerned.’” Id. at 1052 (quoting Motor Vehicle Mfrs. Ass’n,
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`463 U.S. at 43). “Moreover, ‘[w]here the agency’s line-drawing does not appear irrational and
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`the [party challenging the agency action] has not shown that the consequences of the line-
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`drawing are in any respect dire . . . [courts] will leave that line-drawing to the agency’s
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`discretion.’” Id. (quoting Leather Indus. of Am. v. EPA, 40 F.3d 392, 409 (D.C. Cir. 1994)).
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`However, the agency cannot engage in post-hoc rationalizations; “[t]he grounds upon which an
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`administrative order must be judged are those upon which the record discloses that its action was
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`based.” Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943). And when an agency
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`changes position it must provide “good reasons” for the shift. See F.C.C. v. Fox Television
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`Stations, Inc., 556 U.S. 502, 515 (2009).
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`
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`Despite this forgiving standard, there is no room for a court to “rubber-stamp” an
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`administrative decision. There must be “a substantive inquiry[,] . . . a thorough, probing, in-
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`depth review” of the agency action. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d
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`953, 960 (9th Cir. 2005) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
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`415-16 (1971)). If, after such review, the court holds an agency action to be arbitrary and
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`capricious, “the proper course [is] to remand to the [a]gency.” Nat’l Ass’n of Home Builders v.
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`Defs. of Wildlife, 551 U.S. 644, 657 (2007); see also Fed. Power Comm’n v. Idaho Power Co.,
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`344 U.S. 17, 20, (1952) (when reviewing the administrative decision, “the function of the
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`reviewing court ends when an error of law is laid bare.”); but see infra.
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`B.
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`Federal Land Policy and Management Act (“FLPMA”)
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`In enacting FLPMA in 1976, “Congress declared that it is the policy of the United States
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`to manage the public lands ‘in a manner that will protect the quality of scientific, scenic,
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`historical, ecological, environmental, air and atmospheric, water resource, and archeological
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`values.’” Ctr. for Biological Diversity, 581 F.3d at 1075 (quoting 43 U.S.C. § 1701(a)(8)).
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`FLPMA requires management of public lands based on “multiple use and sustained yield,”
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`utilizing the resources “in the combination that will best meet the present and future needs of the
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`American people . . . [taking] into account the long-term needs of future generations for
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`Case 1:18-cv-00187-REB Document 174 Filed 02/27/20 Page 14 of 62
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`renewable and nonrenewable resources, including, but not limited to, recreation, range, timber,
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`minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values[,]” and
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`“achievement and maintenance in perpetuity of a high-level annual or regular periodic output of
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`the various renewable resources of the public lands consistent with multiple use.” 43 U.S.C.
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`§§ 1701(a)(7), 1702(c),(h). “‘Multiple use management’ is a deceptively simple term that
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`describes the enormously complicated task of striking a balance among the many competing uses
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`to which land can be put[.]” Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004).
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`To help achieve these purposes, FLPMA requires that land use plans (known as
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`Resource Management Plans (“RMPs”) for BLM lands) be developed with “public involvement”
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`and then used in managing the public lands. See 43 U.S.C. § 1712(a) (“The Secretary shall, with
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`public involvement and consistent with the terms and conditions of this Act, develop, maintain,
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`and, when appropriate, revise land use plans which provide by tracts of areas for the use of the
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`public lands.”). As to “public involvement,” FLPMA Section 309(e) further directs that:
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`In exercising his authorities under this Act, the Secretary, by regulation, shall
`establish procedures, including public hearings where appropriate, to give . . . the
`public adequate notice and an opportunity to comment upon the formulation of
`standards and criteria for, and to participate in, the preparation and execution of
`plans and programs for, and the management of, public lands.
`
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`43 U.S.C. § 1739(e); see also 43 U.S.C. § 1701(a)(5) (FLPMA Section 102(a)(5): “[I]t is the
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`policy of the United States that . . . the Secretary be required to establish comprehensive rules
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`and regulations after considering the views of the general public . . . .”); 43 U.S.C. § 1712(f)
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`(FLPMA Section 202(f): “The Secretary shall allow an opportunity for public involvement and