2017-05-25_REVISION - C1996083 - Laserfiche WebLink

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CONSERVATION GROUPS’ COMMENTS UNCOMPAHGRE FIELD OFFICE RMP AND DEIS 21 management constraints to reach principle use and resource development goals. Draft EIS at 2- 15. Courts have interpreted BLM’s authority under the MLA as discretionary and not as an absolute mandate to lease. In fact, the Ninth Circuit held that the MLA “allows the Secretary to lease such lands, but does not require him to do so.... [T]he Secretary has discretion to refuse to issue any lease at all on a given tract . . . we affirm the district court’s holding that the agencies failed to give the no action alternative meaningful consideration and thereby violated NEPA.” Bob Marshall All. v. Hodel, 852 F.2d 1223, 1229-30 (9th Cir. 1988) (internal citations omitted). BLM’s rejection of no-leasing alternatives in this RMP is unsubstantiated and relies on a very narrow and outdated interpretation of BLM’s leasing and planning authority, particularly in an EIS development context. Based upon a similar set of facts and administrative record, the district court in Wilderness Soc., Ctr. For Native Ecosystems v. Wisely found: [T]he BLM’s rejection of the ‘no surface occupancy’ alternative violated NEPA in both a technical and substantive sense. The Court finds that final September 2005 EA does not adequately explain why the ‘no surface occupancy’ alternative was dropped. 40 C.F.R. § 1502.14(a) requires that the EA ‘briefly discuss the reasons’ why an alternative was eliminated. Moreover, even if the BLM had fully articulated the reasons for excluding the ‘no surface occupancy’ alternative, the Court would nevertheless find that, on the present record, the decision to eliminate that alternative was arbitrary and capricious. 524 F. Supp. 2d 1285, 1311–12 (D. Colo. 2007). As is the case here, BLM has provided no basis in law or fact to dismiss outright the no-leasing alternatives outlined in the draft UFO EIS. And because BLM is conducting an EIS review for this RMP, the requirement for analyzing or dismissing no action or no-leasing alternatives is heightened. See W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1274-75 (10th Cir. 2013) (“Regulations require both documents to incorporate a range of reasonable alternatives, but the depth of discussion and analysis required is different depending on whether the document is an EIS or an EA. For example, section 40 C.F.R. §1502.14 provides that an EIS should ‘[r]igorously explore . . . all reasonable alternatives,’ and ‘[d]evote substantial treatment to each alternative’ with ‘detail.’ Id. at (a)-(b).”) Thus, not only is BLM’s consideration of a no-leasing alternative reasonable in light of new information, science, and national policy related to climate change, and therefore must be included in the UFO’s RMP, but this information underscores the unreasonableness of the UFO’s action alternatives. This is particularly true of the agency’s preferred Alternative D, which leaves 371,400 acres open to coal leasing, 865,970 acres open to oil and gas leasing (draft EIS at 2-10), projects 1,271 wells will be drilled in the planning area over the planning period (draft EIS at 4- 457), and commits the planning area to 3.11 MMTCO2e emissions, every year, for the foreseeable future (draft EIS at 4-39). This type of status quo approach to federal lands management is unhinged from current reality and the demands of the time.