Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 1 of 60
`
`Timothy M. Bechtold
`Bechtold Law Firm, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`Attorney for Plaintiffs
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF MONTANA
`GREAT FALLS DIVISION
`
`BOLD ALLIANCE, CENTER FOR
`BIOLOGICAL DIVERSITY,
`FRIENDS OF THE EARTH,
`NATURAL RESOURCES DEFENSE
`COUNCIL, INC., and SIERRA CLUB,
`
`Plaintiffs,
`
`v.
`
`U.S. DEPARTMENT OF THE
`INTERIOR; DAVID BERNHARDT,
`in his official capacity as Secretary of
`the Interior; U.S. BUREAU OF LAND
`MANAGEMENT; and U.S. FISH
`AND WILDLIFE SERVICE,
`
`Defendants,
`
` CV
`
`-20-59-GF-BMM-JTJ
`
`Complaint for Declaratory and
`Injunctive Relief
`
`(National Environmental Policy
`Act, 42 U.S.C. § 4321 et seq.;
`Endangered Species Act,
`16 U.S.C. § 1531 et seq.; Mineral
`Leasing Act, 30 U.S.C. § 181
`et seq.; Federal Land Policy and
`Management Act, 43 U.S.C.
`§ 1701 et seq.; Administrative
`Procedure Act, 5 U.S.C. § 701
`et seq.)
`
`
`
`Timothy M. Bechtold
`Bechtold Law Firm, PLLC
`P.O. Box 7051
`Missoula, MT 59807
`(406) 721-1435
`tim@bechtoldlaw.net
`Attorney for Plaintiffs
`
`IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF MONTANA
`GREAT FALLS DIVISION
`
`BOLD ALLIANCE, CENTER FOR
`BIOLOGICAL DIVERSITY,
`FRIENDS OF THE EARTH,
`NATURAL RESOURCES DEFENSE
`COUNCIL, INC., and SIERRA CLUB,
`
`Plaintiffs,
`
`v.
`
`U.S. DEPARTMENT OF THE
`INTERIOR; DAVID BERNHARDT,
`in his official capacity as Secretary of
`the Interior; U.S. BUREAU OF LAND
`MANAGEMENT; and U.S. FISH
`AND WILDLIFE SERVICE,
`
`Defendants,
`
` CV
`
`-20-59-GF-BMM-JTJ
`
`Complaint for Declaratory and
`Injunctive Relief
`
`(National Environmental Policy
`Act, 42 U.S.C. § 4321 et seq.;
`Endangered Species Act,
`16 U.S.C. § 1531 et seq.; Mineral
`Leasing Act, 30 U.S.C. § 181
`et seq.; Federal Land Policy and
`Management Act, 43 U.S.C.
`§ 1701 et seq.; Administrative
`Procedure Act, 5 U.S.C. § 701
`et seq.)
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 2 of 60
`
`
`
`INTRODUCTION
`
`1.
`
`This case involves the U.S. Bureau of Land Management’s (Bureau’s)
`
`unlawful grant of a right-of-way and temporary use permit for the proposed
`
`Keystone XL pipeline project. Keystone XL would move massive quantities of tar
`
`sands crude oil—one of the planet’s most environmentally destructive energy
`
`sources—from Canada to Steele City, Nebraska, threatening the wildlife,
`
`waterways, and communities along its path. The Bureau’s decision to dedicate
`
`public lands to this project, and the federal government’s underlying environmental
`
`review of it, violated a host of federal statutes.
`
`2.
`
`Plaintiffs Bold Alliance, Center for Biological Diversity, Friends of
`
`the Earth, Natural Resources Defense Council, and Sierra Club previously
`
`prevailed in a challenge to federal approvals of the Keystone XL pipeline in the
`
`U.S. District Court for the District of Montana.1 In late 2018, the court held that the
`
`U.S. Department of State’s (State Department’s) 2017 issuance of a cross-border
`
`permit and associated environmental reviews violated the National Environmental
`
`Policy Act (NEPA), Endangered Species Act (ESA), and Administrative Procedure
`
`Act (APA), and accordingly enjoined project construction and remanded to the
`
`State Department for further environmental analysis. Partial MSJ Order at 10-12,
`
`
`1 Five of the six plaintiff groups from that earlier suit are plaintiffs here. Given the
`overlap, this Complaint uses “Plaintiffs” when referring to both the previous and
`instant lawsuit.
`
`
`
`2
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 3 of 60
`
`
`
`N. Plains Res. Council v. Shannon, No. 17-cv-31-BMM (D. Mont. Aug. 15, 2018),
`
`ECF No. 202; Second MSJ Order at 50-54, N. Plains Res. Council, No. 17-cv-31-
`
`BMM (D. Mont. Nov. 8, 2018), ECF No. 211.2 That case also included a claim
`
`against the Bureau, but because the Bureau had not yet acted, the court dismissed
`
`the claim without prejudice. Order at 2, N. Plains Res. Council, No. 17-cv-31-
`
`BMM (D. Mont. Nov. 15, 2018), ECF No. 212 (stating that “Plaintiffs remain free
`
`to re-file a new cause of action based upon the [Bureau] rights-of-way when those
`
`claims become ripe for review”).
`
`3.
`
`The Bureau has now acted. It granted a right-of-way and temporary
`
`use permit for Keystone XL pursuant to the Mineral Leasing Act (MLA) on
`
`January 22, 2020, allowing the pipeline to cross approximately 44 miles of federal
`
`land in Montana administered by the Bureau.
`
`4.
`
`That action is unlawful. The Bureau based its decision on revised
`
`versions of the environmental review documents that still violate NEPA, the ESA,
`
`and the APA because they make only a cursory attempt to rectify the problems
`
`identified by the court. For example, the new Environmental Impact Statement
`
`provides no support for its renewed conclusion that Keystone XL would have no
`
`
`2 The court’s decision was also based on NEPA, ESA, and APA claims raised by
`plaintiffs Indigenous Environmental Network and North Coast Rivers Alliance in a
`consolidated case, Indigenous Envtl. Network v. U.S. Dep’t of State, No. 17-cv-29-
`BMM.
`
`
`
`3
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 4 of 60
`
`
`
`effect on tar sands development despite the precipitous drop in oil prices. And the
`
`revised documents continue to improperly minimize the likelihood of oil spills and
`
`the impacts of those spills on protected species.
`
`5.
`
`The Bureau also violated the MLA and Federal Land Policy and
`
`Management Act (FLPMA) by arbitrarily concluding that the project was
`
`consistent with those Acts’ land-management requirements and by failing to
`
`impose measures that would adequately protect public health and safety and the
`
`surrounding environment. Finally, the Bureau violated the MLA when it issued a
`
`Notice to Proceed for construction at Keystone XL’s border crossing—even
`
`though the right-of-way grant clearly stipulated that the project must obtain all
`
`necessary permits before any construction can begin, and several such permits
`
`remain outstanding.
`
`6.
`
`Plaintiffs therefore seek a declaration that the Bureau’s issuance of a
`
`right-of-way, temporary use permit, and Notice to Proceed for Keystone XL
`
`violated NEPA, the ESA, the MLA, FLPMA, and the APA. Plaintiffs seek vacatur
`
`of Keystone XL’s right-of-way, temporary use permit, and Notice to Proceed, and
`
`an injunction against any further construction of Keystone XL or issuance of
`
`federal approvals that rely on the inadequate environmental reviews described
`
`herein.
`
`
`
`4
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 5 of 60
`
`
`
`JURISDICTION AND VENUE
`
`7.
`
`This case arises under NEPA, 42 U.S.C. § 4321 et seq., the ESA,
`
`16 U.S.C. § 1531 et seq., the MLA, 30 U.S.C. § 181 et seq., FLPMA, 43 U.S.C.
`
`§ 1701 et seq., and the APA, 5 U.S.C. § 701 et seq. This Court has jurisdiction
`
`over this action pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1361
`
`(mandamus), 28 U.S.C. §§ 2201-2202 (declaratory judgment), 16 U.S.C. § 1540(c)
`
`& (g) (ESA), and 5 U.S.C. § 702 (APA).
`
`8.
`
`Plaintiffs have provided the Department of the Interior, Secretary of
`
`Interior Bernhardt, the Bureau, and the U.S. Fish and Wildlife Service (Service)
`
`with at least 60 days’ written notice of the ESA violation alleged in their Second
`
`Claim for Relief, in the form and manner required by the ESA, 16 U.S.C.
`
`§ 1540(g)(2)(A)(i). A copy of Plaintiffs’ February 13, 2020, notice letter is
`
`attached as Exhibit A to this Complaint.
`
`9.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because
`
`a substantial part of the events or omissions giving rise to the claim occurred here.
`
`The proposed route for the Keystone XL pipeline enters the United States in
`
`Montana and runs for approximately 44 miles through lands under the jurisdiction
`
`of the Bureau in Montana. Plaintiffs challenge the Bureau’s decision to grant a
`
`right-of-way for the pipeline to use those Bureau-administered lands.
`
`
`
`5
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 6 of 60
`
`
`
`10. Assignment to the Great Falls division of this Court is appropriate
`
`because Keystone XL would cross the U.S.-Canada border on Bureau-
`
`administrated land in Phillips County and would continue to cross Bureau-
`
`administered land in both Phillips and Valley Counties. These Counties are both
`
`within the Great Falls Division. D. Mont. L.R. 1.2(c)(3).
`
`PARTIES
`Plaintiffs
`
`11. Plaintiff Bold Alliance (Bold) is a network of individuals and not-for-
`
`profit environmental- and landowner-rights groups based in Nebraska and other
`
`rural states in the Midwest and South. It has more than 92,000 supporters across
`
`the country. Bold advocates for clean energy, fights fossil fuel projects, and works
`
`to protect rural landowners and landscapes, in cooperation with Tribal nations,
`
`farmers, ranchers, hunters, anglers, and environmentalists. Bold and its allies have
`
`spent years working to raise awareness of Keystone XL’s threats to the
`
`people, land, wildlife, and water of Nebraska and other states, and to persuade our
`
`national and state officials to reject it.
`
`12. Plaintiff Center for Biological Diversity (the Center) is a national non-
`
`profit organization that works through science, law, and policy to secure a future
`
`for all species, great or small, hovering on the brink of extinction. The Center has
`
`over 70,000 members and more than 1.7 million online supporters worldwide. The
`
`
`
`6
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 7 of 60
`
`
`
`Center has worked for decades to safeguard fresh water for people, plants, and
`
`animals. One of the Center’s central goals is to protect imperiled species and the
`
`habitats they rely on. The Center’s members and staff value and benefit from rare
`
`species’ continued existence in the wild. They are concerned about industrial
`
`development and associated trends like global climate change and water
`
`degradation that threaten wild species’ survival and recovery, as well as impacts to
`
`species from pipeline development, including from oil spills. The Center has
`
`worked for years to protect several imperiled species that would be harmed by
`
`Keystone XL.
`
`13. Plaintiff Friends of the Earth (FoE) is a non-profit advocacy
`
`organization founded in 1969. FoE has more than 325,000 members and more than
`
`1.7 million activists across the United States. It is a member of Friends of the Earth
`
`International, which is the world’s largest grassroots environmental network with
`
`75 affiliates worldwide. FoE’s mission is to defend the environment and champion
`
`a healthy and just world. FoE speaks truth to power and exposes those who
`
`endanger people and the planet. Its campaigns work to hold politicians and
`
`corporations accountable, transform our economic systems, protect our forests and
`
`oceans, halt climate chaos, and revolutionize our food and agriculture systems.
`
`Ending destructive tar sands development is one of FoE’s top priorities.
`
`
`
`7
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 8 of 60
`
`
`
`14. Plaintiff Natural Resources Defense Council, Inc. (NRDC) is a
`
`national, not-for-profit public-health and environmental advocacy organization
`
`whose purpose is to safeguard the Earth: its people, its plants and animals, and the
`
`natural systems on which all life depends. NRDC has hundreds of thousands of
`
`members, including members who own land and live in Montana and other states
`
`that Keystone XL would cross. Since its founding in 1970, NRDC has worked to
`
`enforce environmental laws and to reduce air and water pollution from, threats to
`
`wildlife and habitat from, and destruction of natural lands by industrial activity.
`
`NRDC has long fought to protect its members, the public, wildlife, and wild lands
`
`from the threats posed by the transporting, spilling, and burning of Canadian tar
`
`sands crude oil.
`
`15. Plaintiff Sierra Club is the nation’s oldest grassroots organization
`
`dedicated to the protection and preservation of the environment. The Sierra Club
`
`has over 3.8 million members and supporters dedicated to exploring, enjoying, and
`
`protecting the wild places of the Earth; practicing and promoting the responsible
`
`use of the Earth’s ecosystems and resources; educating and enlisting humanity to
`
`protect and restore the quality of the natural and human environment; and using all
`
`lawful means to carry out these objectives. The Sierra Club has chapters and
`
`members in each of the states through which Keystone XL would pass, including
`
`Montana. The Sierra Club’s concerns encompass the protection of wildlands,
`
`
`
`8
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 9 of 60
`
`
`
`wildlife and habitat, water resources, air, climate, public health, and the health of
`
`its members, all of which stand to be affected by Keystone XL.
`
`16.
`
`In bringing this lawsuit, Plaintiffs stand in the shoes of members,
`
`staff, and other supporters who live, work, and recreate in places threatened by
`
`Keystone XL and who use, study, and cherish the land, wildlife, and other
`
`resources that may be irrevocably damaged by the project. Plaintiffs have
`
`numerous members and other supporters who live in Montana, South Dakota, and
`
`Nebraska—the states that Keystone XL would cross. Plaintiffs’ members, other
`
`supporters, and staff include individuals who study and advocate for better
`
`protection of wildlife and other resources threatened by Keystone XL.
`
`17. For example, some of Plaintiffs’ members own property on and near
`
`the proposed pipeline route. The project threatens these individuals’ use and
`
`enjoyment, and the economic value, of their property. Some of Plaintiffs’ members
`
`also enjoy hiking, picnicking, fishing, and observing wildlife in parks and along
`
`rivers near the proposed pipeline route, including in areas near or on the Bureau’s
`
`right-of-way, and plan to return to those areas to pursue such activities in the
`
`future. In addition, some of Plaintiffs’ members study and enjoy observing wild
`
`species whose survival and recovery are threatened by Keystone XL, including the
`
`critically endangered whooping crane and other federally protected Great Plains
`
`migratory birds, as well as other imperiled species such as the pallid sturgeon.
`
`
`
`9
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 10 of 60
`
`
`
`Some of these members are naturalists, biologists, and birdwatchers who visit areas
`
`near the proposed project route to study and observe these species, and have plans
`
`to return to these areas in the future to continue observing these species in their
`
`natural habitat.
`
`18. Defendants’ approvals and inadequate environmental reviews of
`
`Keystone XL threaten the health, recreational, economic, professional, scientific,
`
`and aesthetic interests of Plaintiffs’ members, staff, and other supporters.
`
`19. For example, the Bureau’s Record of Decision and the other
`
`environmental analyses on which it relied did not adequately address the risk and
`
`consequences of oil spills from the pipeline. A spill on a member’s land would
`
`interfere with their use and enjoyment of the property, threaten their water supply,
`
`and decrease property values. Similarly, the negative ecological effects of a spill
`
`would interfere with members’ use and enjoyment of the wild spaces along the
`
`pipeline’s route and their interest in observing, studying, and protecting imperiled
`
`species that live, feed, or breed there.
`
`20. By relying on inadequate environmental review documents prepared
`
`under NEPA and the ESA, refusing to undertake formal ESA consultation for
`
`Keystone XL for several endangered and threatened species, failing to ensure the
`
`project’s consistency with the Bureau’s land-management mandates and other
`
`statutory obligations, and neglecting the study and pursuit of viable alternatives
`
`
`
`10
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 11 of 60
`
`
`
`and mitigation measures, Defendants failed to reduce the project’s negative
`
`impacts on and threats to Plaintiffs’ members, other supporters, and staff. Further,
`
`by issuing a Notice to Proceed with construction that violated the right-of-way
`
`grant’s terms and conditions—namely, that all approvals for Keystone XL be
`
`issued—Defendants have allowed these impacts to occur before they can properly
`
`be analyzed and have risked prejudicing the results of those remaining approvals.
`
`21. The declaratory and injunctive relief Plaintiffs seek in this lawsuit will
`
`redress their injuries by setting aside Defendants’ approvals and requiring
`
`Defendants to comply with the law. This relief will give Plaintiffs, their members,
`
`other supporters, staff, and the general public more comprehensive and complete
`
`information regarding Keystone XL’s threats to valued resources. It will allow
`
`Plaintiffs, their members and supporters, and others who are concerned about
`
`Keystone XL to advocate more effectively for denial of the project or changes to
`
`its design and operation that would help mitigate its adverse impacts (including,
`
`but not limited to, conservation measures that would better protect listed species).
`
`And it will give federal, state, and local decisionmakers the chance to make better-
`
`informed decisions about whether and on what terms to approve the project,
`
`unbiased by any bureaucratic momentum or irretrievable commitment of resources.
`
`
`
`11
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 12 of 60
`
`
`
`Defendants
`
`22. Defendant Department of the Interior (Interior Department) is a
`
`federal agency. The Interior Department’s chief administrator is the Secretary of
`
`the Interior. The Interior Department, through its sub-agency U.S. Bureau of Land
`
`Management, decides whether to grant rights-of-way for the construction,
`
`operation, and maintenance of oil pipelines and associated facilities that cross land
`
`administered by the Bureau. In carrying out its permitting responsibilities, the
`
`Interior Department must comply with NEPA, the ESA, the MLA, FLPMA, and
`
`the APA. The Interior Department, through its sub-agency, the U.S. Fish and
`
`Wildlife Service, is also responsible for assuring other agencies’ compliance with
`
`the ESA.
`
`23. Defendant David Bernhardt is the Secretary of the Interior. In his
`
`official capacity, Secretary Bernhardt, or his subordinates, are responsible for
`
`deciding whether to grant rights-of-way for the construction, operation, and
`
`maintenance of oil pipelines and associated facilities that cross land administered
`
`by the Bureau. In carrying out these duties, Secretary Bernhardt must ensure the
`
`Interior Department’s and Bureau’s compliance with NEPA, the ESA, the MLA,
`
`FLPMA, and the APA.
`
`24. Defendant U.S. Bureau of Land Management (Bureau) is a sub-
`
`agency of the Interior Department. The Bureau decides whether to grant rights-of-
`
`
`
`12
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 13 of 60
`
`
`
`way for the construction, operation, and maintenance of oil pipelines and
`
`associated facilities that cross land it administers. In carrying out its permitting
`
`responsibilities, the Bureau must comply with NEPA, the ESA, the MLA, FLPMA,
`
`and the APA.
`
`25. Defendant U.S. Fish and Wildlife Service (Service) is another sub-
`
`agency of the Interior Department. The Service is required by law to protect and
`
`manage the fish, wildlife, and native plant resources of the United States, including
`
`through implementation and enforcement of the ESA. The Service is responsible
`
`for ensuring that the Bureau’s permitting decisions comply with the ESA.
`
`LEGAL BACKGROUND
`The National Environmental Policy Act (NEPA)
`
`26. NEPA is our “basic national charter for protection of the
`
`environment.” 40 C.F.R. § 1500.1(a). Congress enacted it in 1970 “to promote
`
`efforts which will prevent or eliminate damage to the environment.” 42 U.S.C.
`
`§ 4321.
`
`27. NEPA seeks to ensure “that environmental information is available to
`
`public officials and citizens before decisions are made and before actions are
`
`taken” and to “help public officials make decisions that are based on understanding
`
`of environmental consequences, and take actions that protect, restore, and enhance
`
`the environment.” 40 C.F.R. § 1500.1(b), (c). When the federal government acts
`
`
`
`13
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 14 of 60
`
`
`
`before fulfilling its NEPA obligations, courts shall set aside the action until the
`
`government complies with NEPA.
`
`28. The Council on Environmental Quality (CEQ) is an agency created by
`
`NEPA and housed within the Executive Office of the President. 42 U.S.C. § 4342.
`
`CEQ has promulgated general regulations implementing NEPA. 40 C.F.R.
`
`§§ 1500-1508.
`
`29. NEPA requires all federal agencies to prepare a “detailed statement”
`
`for any “major Federal actions significantly affecting the quality of the human
`
`environment.” 42 U.S.C. § 4332(2)(C). This statement—commonly known as an
`
`environmental impact statement (EIS)—must describe the environmental impacts
`
`of the proposed action. Id. § 4332(2)(C)(i), (ii). The EIS is an “action-forcing
`
`device” that ensures NEPA’s goals “are infused into the ongoing programs and
`
`actions of the Federal Government.” 40 C.F.R. § 1502.1.
`
`30. An EIS must include a “full and fair discussion” of the “direct,”
`
`“indirect,” and “cumulative” effects of the action, as well as a discussion of
`
`“[m]eans to mitigate adverse environmental impacts.” Id. §§ 1502.1, 1502.16(a),
`
`(b) & (h), 1508.25(c). Direct impacts are “caused by the action and occur at the
`
`same time and place.” Id. § 1508.8(a). Indirect impacts are “caused by the action
`
`and are later in time or farther removed in distance, but are still reasonably
`
`foreseeable.” Id. § 1508.8(b). Cumulative impacts are the “incremental impact[s]
`
`
`
`14
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 15 of 60
`
`
`
`of the action when added to other past, present, and reasonably foreseeable future
`
`actions regardless of what agency (Federal or non-Federal) or person undertakes
`
`such other actions.” Id. § 1508.7. Cumulative impacts “can result from individually
`
`minor but collectively significant actions taking place over a period of time.” Id.
`
`31. Agencies must include analysis of any “connected” actions in the
`
`same EIS. Id. § 1508.25(a)(1). Connected actions are those that “[a]utomatically
`
`trigger other actions which may require environmental impact statements,”
`
`“[c]annot or will not proceed unless other actions are taken previously or
`
`simultaneously,” or “[a]re interdependent parts of a larger action and depend on the
`
`larger action for their justification.” Id.
`
`32. The EIS must also inform federal agency decision-makers and the
`
`public of the “reasonable alternatives which would avoid or minimize adverse
`
`impacts or enhance the quality of the human environment.” Id. § 1502.1. This
`
`analysis of alternatives is the “heart” of the EIS—i.e., where the agency should
`
`“present the environmental impacts of the proposal and the alternatives in
`
`comparative form, thus sharply defining the issues and providing a clear basis for
`
`choice among options.” Id. § 1502.14. The EIS must “[r]igorously explore and
`
`objectively evaluate all reasonable alternatives,” including the “alternative of no
`
`action.” Id. § 1502.14(a), (d).
`
`
`
`15
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 16 of 60
`
`
`
`33. An EIS must also “specify the underlying purpose and need to which
`
`the agency is responding” in proposing the action the EIS describes and the
`
`alternatives the EIS identifies. Id. § 1502.13.
`
`34. Any federal agency that is considering approving an activity that may
`
`significantly affect the environment must first prepare a draft EIS. The agency
`
`must solicit comments on that draft from the public, any other federal agency that
`
`has jurisdiction or special expertise on the subject matter, and Indian Tribes when
`
`the project may affect a reservation. See id. §§ 1502.9(a), 1503.1(a). The agency
`
`must then prepare a final EIS based on its consideration of those comments. Id.
`
`§§ 1502.9(b), 1503.4(a). The agency must respond to comments by either making
`
`changes to the EIS or explaining why the comments do not warrant further agency
`
`response. Id. At the conclusion of the EIS process, an agency must issue a record
`
`of decision pursuant to Id. § 1505.2.
`
`35.
`
`If, after the EIS is prepared, there are significant new circumstances or
`
`information relevant to the environmental impacts of a proposed action, the agency
`
`must prepare a supplemental EIS before deciding whether to approve the action.
`
`Id. § 1502.9(c)(1). A supplemental EIS must be prepared and circulated in the
`
`same way as the draft EIS and final EIS. Id. § 1502.9(c)(4).
`
`36. A “cooperating agency” is a federal agency other than the lead agency
`
`that has jurisdiction by law or special expertise about any environmental impact of
`
`
`
`16
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 17 of 60
`
`
`
`the project. Id. § 1508.5. Cooperating agencies are required to participate in the
`
`NEPA process at the earliest possible time and assume responsibility, at the lead
`
`agency’s request, for preparing environmental analyses in areas concerning the
`
`cooperating agency’s special expertise. Id. § 1501.6(b). A cooperating agency may
`
`adopt without recirculating the EIS of a lead agency “when, after an independent
`
`review of the statement, the cooperating agency concludes that its comments and
`
`suggestions have been satisfied.” Id. § 1506.3(c).
`
`The Mineral Leasing Act (MLA)
`
`37. Section 28 of the MLA authorizes the “Secretary of the Interior or
`
`appropriate agency head” to issue rights-of-way and temporary use permits for oil
`
`pipelines. 30 U.S.C. § 185(a), (e). Where all federal lands involved are under the
`
`jurisdiction of a single agency, that agency’s head may grant a right-of-way or
`
`permit. Id. § 185(c)(1). If two or more agencies administer the affected lands, then
`
`the Secretary is charged with determining whether to issue a right-of-way or
`
`permit, after consulting with the agencies involved. Id. § 185(c)(2).
`
`38. Under the MLA, no right-of-way through federal lands may be
`
`granted where it “would be inconsistent with the purposes of the reservation.” Id.
`
`§ 185(b)(1).
`
`39. The Bureau’s implementing regulations likewise provide that the
`
`Bureau may deny an MLA right-of-way application where the “proposed use is
`
`
`
`17
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 18 of 60
`
`
`
`inconsistent with the purpose for which BLM or other Federal agencies manage the
`
`lands” at issue, where “[t]he proposed use would not be in the public interest,” or
`
`where issuing a right-of-way “would be inconsistent with” the MLA or other laws
`
`or regulations. 43 C.F.R. § 2884.23(a)(1)-(2), (4). The regulations further mandate
`
`that the Bureau’s objectives in administering its right-of-way responsibilities
`
`include “[p]rotect[ing] the natural resources associated with Federal lands and
`
`adjacent lands, whether private or administered by a government entity,” and
`
`“prevent[ing] unnecessary or undue degradation to public lands.” Id. § 2881.2(a),
`
`(b).
`
`40.
`
`In determining whether to grant a right-of-way, agencies must also
`
`comply with the requirements of NEPA and the ESA. 30 U.S.C. § 185(h)(1); see
`
`also 42 U.S.C. § 4332(2)(C); 16 U.S.C. § 1536(a)(2).
`
`41.
`
`If an agency decides to grant a right-of-way, the MLA requires that
`
`the grant “shall be subject to regulations . . . and such terms and conditions as the
`
`Secretary or agency head may prescribe regarding extent, duration, survey,
`
`location, construction, operation, maintenance, use, and termination.” 30 U.S.C.
`
`§ 185(f).
`
`42. The MLA requires, in turn, that the Secretary or agency head exercise
`
`this regulatory authority to “impose requirements for the operation of the pipeline
`
`and related facilities in a manner that will protect the safety of workers and protect
`
`
`
`18
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 19 of 60
`
`
`
`the public from sudden ruptures and slow degradation of the pipeline.” Id.
`
`§ 185(g). The granting agency must also “issue regulations or impose stipulations
`
`which shall include . . . requirements designed to control or prevent (i) damage to
`
`the environment (including damage to fish and wildlife habitat), (ii) damage to
`
`public or private property, and (iii) hazards to public health and safety.” Id.
`
`§ 185(h)(2).
`
`43. The MLA further mandates that “[e]ach agency head shall administer
`
`and enforce the provisions of this section, appropriate regulations, and the terms
`
`and conditions of rights-of-way or permits” within the agency’s jurisdiction. Id.
`
`§ 185(c)(2). The Bureau has established by regulation various “terms and
`
`conditions” for “construction, operation, maintenance, and termination of the
`
`project” that MLA grantees must “comply with, and be bound by.” 43 C.F.R.
`
`§ 2885.11(b). The Bureau may impose additional project-specific stipulations. Id.
`
`§ 2885.11(b)(22).
`
`44. The Bureau’s standard terms and conditions provide that a grantee
`
`must “[n]ot use or construct on the land in the right-of-way” or permit area until
`
`the Bureau issues “a Notice to Proceed for all or any part of the right-of-way” or
`
`permit area. Id. § 2885.11(21)(ii); see also id. § 2886.10(a).
`
`45. A grantee’s failure to comply with the MLA may result in suspension
`
`or termination of the right-of-way, following notice and an administrative
`
`
`
`19
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 20 of 60
`
`
`
`proceeding. 30 U.S.C. § 185(o)(1). An agency may also order “an immediate
`
`temporary suspension of activities within a right-of-way or permit area” if
`
`“necessary to protect public health or safety or the environment.” Id. § 185(o)(2);
`
`see also 43 C.F.R. § 2886.16(a).
`
`The Federal Land Policy and Management Act (FLPMA)
`
`46.
`
`In issuing rights-of-way pursuant to the MLA, the Bureau must also
`
`comply with its land-management directives under FLPMA. FLPMA provides that
`
`the Bureau “shall manage the public lands under principles of multiple use and
`
`sustained yield.” 43 U.S.C. § 1732(a).
`
`47.
`
`“Multiple use” incorporates “a combination of balanced and diverse
`
`resource uses that takes into account the long-term needs of future generations for
`
`renewable and nonrenewable resources, including, but not limited to, recreation,
`
`range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific
`
`and historical values.” Id. § 1702(c). FLPMA defines “sustained yield” as “the
`
`achievement and maintenance in perpetuity of a high-level annual or regular
`
`periodic output of the various renewable resources of the public lands consistent
`
`with multiple use.” Id. § 1702(h).
`
`48. To that end, BLM must prepare land use plans based on those
`
`principles, id. § 1712(a), (c)(1), and manage the governed areas “in accordance”
`
`with those plans, id. § 1732(a).
`
`
`
`20
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 21 of 60
`
`
`
`49.
`
`In addition, FLPMA mandates that BLM “shall, by regulation or
`
`otherwise, take any action necessary to prevent unnecessary or undue degradation”
`
`of public lands. 43 U.S.C. § 1732(b).
`
`The Endangered Species Act (ESA)
`
`50. With the ESA, Congress intended endangered species to be afforded
`
`the highest of priorities. The ESA’s purpose is “to provide a means whereby the
`
`ecosystems upon which endangered species and threatened species depend may be
`
`conserved, [and] to provide a program for the conservation of such endangered
`
`species and threatened species.” 16 U.S.C. § 1531(b).
`
`51. Species listed by the Service as “threatened” or “endangered” are
`
`accorded the ESA’s protections. Under Section 7(a)(2) of the ESA, all federal
`
`action agencies must, “in consultation with” the Service, “insure” that the actions
`
`that they fund, authorize, or undertake are “not likely to jeopardize the continued
`
`existence of any endangered species or threatened species or result in the
`
`destruction or adverse modification” of critical habitat. 16 U.S.C. § 1536(a)(2).
`
`52. The ESA’s regulatory definition of “action” is broad and includes “all
`
`activities or programs of any kind authorized, funded, or carried out, in whole or in
`
`part, by Federal agencies in the United States or upon the high seas.” 50 C.F.R.
`
`§ 402.02. To “jeopardize” means to “engage in an action that reasonably would be
`
`expected, directly or indirectly, to reduce appreciably the likelihood of both the
`
`
`
`21
`
`
`
`Case 4:20-cv-00059-BMM-JTJ Document 1 Filed 07/14/20 Page 22 of 60
`
`
`
`survival and recovery of a listed species in the wild by reducing the reproduction,
`
`numbers, or distribution of that species.” Id.
`
`53. Section 7(a)(2) and its implementing regulations set forth a detailed
`
`process that must be followed before agencies take or approve actions that may
`
`affect threatened or endangered species or critical habitat. Fulfillment of this
`
`process is the only means by which an agency ensures that its affirmative duties
`
`under Sect
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
