Dine Citizens Against Ruining Our Env't v. Bernhardt

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 7, 2019

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

DINE CITIZENS AGAINST RUINING
OUR ENVIRONMENT; SAN JUAN
CITIZENS ALLIANCE; WILDEARTH
GUARDIANS; NATURAL RESOURCES
DEFENSE COUNCIL,

Plaintiffs - Appellants,
No. 18-2089
v.

DAVID BERNHARDT, in his official
capacity as Acting Secretary of the United
States Department of the Interior; UNITED
STATES BUREAU OF LAND
MANAGEMENT, an agency within the
United States Department of the Interior;
NEIL KORNZE, in his official capacity as
Director of the United States Bureau of
Land Management,

Defendants - Appellees,

and

DJR ENERGY HOLDINGS, LLC; BP
AMERICA PRODUCTION COMPANY;
AMERICAN PETROLEUM INSTITUTE;
ANSCHUTZ EXPLORATION
CORPORATION; ENDURING
RESOURCES IV, LLC,

Intervenor Defendants - Appellees,

and

CONOCOPHILLIPS COMPANY;
 BURLINGTON RESOURCES OIL &
GAS COMPANY LP,

Intervenor Defendants.

------------------------------

ALL PUEBLO COUNCIL OF
GOVERNORS; NATIONAL TRUST FOR
HISTORIC PRESERVATION; NAVAJO
ALLOTTEES; ALICE BENALLY; LILLY
COMANCHE; VIRGINIA HARRISON;
SAMUEL HARRISON; DOLORA
HESUSE; VERNA MARTINEZ; LOYCE
PHOENIX,

Amici Curiae.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:15-CV-00209-JB-LF)
_________________________________

Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, New Mexico (Kyle J. Tisdel,
Western Environmental Law Center, Taos, New Mexico, with her on the briefs),
appearing for Appellants.

Avi Kupfer, U.S. Department of Justice, Environment & Natural Resources Division,
Washington, D.C. (Michael C. Williams, Of Counsel, Attorney-Advisor, Office of the
Solicitor, U.S. Department of the Interior, Clare M. Boronow, and Mark R. Haag, U.S.
Department of Justice, Environment & Natural Resources Division, Washington, D.C.,
on the brief), for the Defendants-Appellees.

Hadassah M. Reimer, Holland & Hart LLP, Jackson, Wyoming (Stephen G. Masciocchi,
and John F. Shepherd, Holland & Hart LLP, Denver, Colorado, Bradford Berge, Holland
& Hart LLP, Santa Fe, New Mexico, Rebecca W. Watson, Welborn Sullivan Meck &
Tooley, P.C., Denver, Colorado, Stephen Rosenbaum, Covington & Burling, LLP,
Washington, D.C., and Jon J. Indall, Comeau Maldegen Templeman & Indall LLP, Santa
Fe, New Mexico, with her on the brief), appearing for Intervenors-Appellees.
_________________________________

Before BRISCOE, McKAY, and HOLMES, Circuit Judges.

2
 _________________________________

BRISCOE, Circuit Judge.
_________________________________

In this case, we are asked to decide whether the Bureau of Land Management

violated the National Historic Preservation Act (NHPA) and the National

Environmental Policy Act (NEPA) in granting more than 300 applications for permits

to drill horizontal, multi-stage hydraulically fracked wells in the Mancos Shale area

of the San Juan Basin in northeastern New Mexico. Appellants1 sued the Secretary of

the Department of the Interior, the Bureau of Land Management, and the Secretary of

the BLM, alleging that the BLM authorized the drilling without fully considering its

indirect and cumulative impacts on the environment or on historic properties. The

district court denied Appellants a preliminary injunction, and we affirmed that

decision in 2016. After merits briefing, the district court concluded that the BLM

had not violated either NHPA or NEPA and dismissed Appellants’ claims with

prejudice. Appellants now appeal.

We have jurisdiction under 28 U.S.C. § 1291 and affirm in part, reverse in

part, and remand with instructions.

1
Appellants are four environmental advocacy groups: (1) Diné Citizens
Against Ruining Our Environment, comprised of Navajo community activists from
the Four Corners region, (2) San Juan Citizens Alliance, concerned with social,
economic, and environmental justice in the San Juan Basin, (3) WildEarth Guardians,
based in Santa Fe, New Mexico and with members and offices throughout the
western United States, and (4) Natural Resources Defense Council, with members
throughout the United States, many of whom reside in New Mexico.

3
 I

We summarized the underlying facts in the prior appeal.

The San Juan Basin is a large geographic region in the southwestern
United States, including part of New Mexico. Drilling for oil and gas has
occurred in the Basin for more than sixty years, and the Basin is currently
one of the most prolific sources of natural gas in the country. The Basin
includes both public and private lands. Many of the public lands and
resources fall under the jurisdiction of the Bureau of Land Management’s
Farmington Field Office in New Mexico, which manages these lands and
resources under its published Resource Management Plan.

In 2000, the BLM initiated the process of revising its existing RMP,
which had been published in 1988. As part of this process, the BLM
contracted with the New Mexico Institute of Mining and Geology to
develop a “reasonably foreseeable development scenario,” or RFDS, to
predict the foreseeable oil and gas development likely to occur over the
next twenty years. Based on historic production data and available
geologic and engineering evidence, the RFDS estimated that 9,970 new oil
and gas wells would be drilled on federally managed lands in the New
Mexico portion of the San Juan Basin during this time period. Of these
wells, the RFDS estimated that more than forty percent would be “Dakota,
Mancos” gas wells—wells that could produce gas from both the Mancos
geologic horizon and the Dakota geologic horizon that lies below it. The
RFDS estimated that only 180 new oil wells would be drilled in the Mancos
Shale, due to the fact that most reservoirs in the Mancos Shale were
approaching depletion under then-current technologies, but it noted that
there is excellent potential for the Mancos to be further evaluated.

In 2003, the BLM issued its Proposed Resource Management Plan
and Final Environmental Impact Statement ([2003 EIS]). In this document,
the BLM referred to the predictions and analysis contained in the RFDS in
order to assess four proposed alternatives for managing federal lands in the
San Juan Basin, including the “balanced approach” the agency ultimately
decided to adopt. Under this balanced approach, the BLM analyzed the
cumulative impacts of an estimated 9,942 new wells in the San Juan
Basin—approximately the same number predicted in the 2001 RFDS—by
looking at, for instance, the likely air quality impacts from the drilling and
operation of this many new wells in the region. The [2003 EIS] did not
discuss specific sites or approve any individual wells, although it assumed
the majority of new wells would be drilled in the high development area in
the northern part of the managed area. The BLM issued its final RMP,

4
 adopting the Alternative D balanced approach, in December 2003.

Diné Citizens Against Ruining Our Env’t v. Jewell (Diné II), 839 F.3d 1276, 1279–80

(10th Cir. 2016) (citations omitted).

Although the 2003 EIS analyzed oil and gas drilling in the San Juan Basin

generally, operators wanting to drill new wells in the area must seek and receive approval

for specific drilling via an application for a permit to drill (APD) submitted to the BLM.

When the BLM receives an APD, it prepares an environmental assessment (EA)

examining the environmental impacts of the proposed drilling. The EA must include an

analysis of the direct, indirect, and cumulative effects of the proposed drilling. See 40

C.F.R. §§ 1508.7, 1508.8. The EA process results in one of three outcomes: (1) a

conclusion that the proposed action would result in a significant environmental impact,

necessitating an EIS, (2) a conclusion that the proposed action would not result in a

significant environmental impact—a “finding of no significant impact” (FONSI), or (3) a

conclusion that the proposed action will not go forward. 43 C.F.R. § 46.325. Even if a

proposed action will have significant effects, the EA may still result in a FONSI if it is

tiered to a broader environmental analysis that fully analyzed those significant effects.

Id. § 46.140(c).

Beginning in 2010, the BLM began receiving APDs for drilling in the Mancos

Shale. Development interest in the area increased quickly, and between early 2012 and

April 2014, seventy new wells were completed in the Mancos Shale area. In 2014,

recognizing the potential for additional Mancos Shale development, the BLM had a new

RFDS prepared to evaluate the Mancos Shale’s potential for oil and gas development.

5
The 2014 RFDS estimates that full development of the Mancos Shale would result in

3,960 new wells.

The 2014 RFDS predicts that new drilling in the Mancos Shale will be done

largely, if not entirely, by horizontal drilling and multi-stage hydraulic fracturing. “A

horizontally drilled well starts as a vertical or directional well, but then curves and

becomes horizontal, or nearly so, allowing the wellbore [i.e., drilled hole] to follow

within a rock stratum for significant distances and thus greatly increase the volume of a

reservoir opened by the wellbore.” Wyoming v. Zinke, 871 F.3d 1133, 1137 (10th Cir.

2017) (alteration in original) (quotations omitted). Hydraulic fracturing is a process

designed to “maximize the extraction” of oil and gas resources. JA1912. Fluids, usually

water with chemical additives, “are pumped into a geologic formation at high pressure.”

Id. When the pressure “exceeds the rock strength,” it creates or enlarges fractures from

which oil and gas can flow more freely. Id. After the fractures are created, a “propping

agent (usually sand) is pumped into the fractures to keep them from closing.” Id.

As we noted previously,

These new drilling techniques have greatly increased access to oil and gas
reserves that were not previously targeted for development and have given
rise to much higher levels of development in the Mancos Shale than the
BLM previously estimated and accounted for. Moreover, horizontal
drilling and multi-stage fracturing may have greater environmental impacts
than vertical drilling and older fracturing techniques.

Diné II, 839 F.3d at 1283.

Hydraulic fracturing is common in the San Juan Basin and has been used there in

some form since the 1950s. Horizontal drilling, however, is relatively new. At the time

6
the 2003 EIS issued, “[h]orizontal drilling [wa]s possible but not [then] applied in the San

Juan Basin due to poor cost[-]to[-]benefit ratio.” JA746. The environmental impacts

considered in the 2003 EIS were therefore based on the impacts associated with vertical

drilling, not horizontal drilling. But the 2003 EIS noted that “[i]f horizontal drilling

should prove economically and technically feasible in the future, the next advancement in

horizontal well technology could be drilling multi-laterals or hydraulic fracturing

horizontal wells.” Id.

Since the 2003 EIS issued, 3,945 of the 9,942 contemplated vertical wells have

been drilled in the San Juan Basin. The BLM continues to receive and approve APDs for

horizontal Mancos Shale wells. Appellants’ initial petition in the district court

challenged “at least 130” Mancos Shale APDs approved by the BLM. JA2449. Over the

course of this litigation, Appellants amended their petition three times to account for

additional granted APDs. Their final petition challenged “at least 351” APDs.2 JA2701.

In 2015, Appellants filed their first Petition for Review of Agency Action

(Petition) in district court, challenging the BLM’s issuance of APDs as violative of

NEPA and NHPA. Appellants named as defendants the Secretary of the United

States Department of the Interior, BLM, and the Director of BLM (collectively,

2
The number of wells at issue on appeal is unclear. Although the district court
ruled that twenty-eight challenged APDs are not final agency action and four others
are moot—a ruling Appellants do not appeal—Appellants continue to assert that 362
APDs (the same number they argued throughout briefing in the district court) are at
issue. Federal Appellees, for their part, assert that the challenged wells “number[]
337 as of October 17, 2018,” but cite only to the district court’s opinion in support.
Fed. Aples. Br. at 18.
7
Federal Appellees). A group of oil companies (DJR Energy Holdings, LLC, BP

America Production Company, American Petroleum Institute, Anschutz Exploration

Corporation, and Enduring Resources IV, LLC), each of which owns leases or

drilling permits in the Mancos Shale intervened as defendants (collectively,

Intervenor Appellees).

Appellants moved for a preliminary injunction, which the district court denied.

See Diné Citizens Against Ruining Our Env’t v. Jewell (Diné I), No. CIV 15-0209,

2015 WL 6393843 (D.N.M. Sept. 16, 2015). This court upheld the denial on appeal.

Diné II, 839 F.3d 1276. In district court, Appellants amended their Petition three

times to add additional challenged APDs. Appellants’ operative Third Supplemented

Petition alleges, as relevant on appeal: (1) a NEPA violation for improperly tiering

the EAs to the 2003 EIS; (2) a NEPA violation for failing to prepare an EIS or

supplement an existing EIS; and (3) a NHPA violation for failing to complete Section

106 consultation. Appellants sought vacatur of all the challenged APDs and an

injunction against all “future horizontal drilling or hydraulic fracturing in the Mancos

Shale” until the BLM complied with NHPA and NEPA. JA2743.

In April 2017, Appellants sought judgment in the district court. On April 23,

2018, the district court ruled against Appellants and dismissed their claims with

prejudice. The district court made the following relevant rulings: (1) Appellants have

standing to pursue their claims; (2) Appellants do not establish a NEPA violation;

and (3) Appellants do not establish a NHPA violation.

Appellants timely appealed, raising two issues. First, they contend that the

8
BLM violated NHPA because it “failed to analyze the indirect and cumulative

impacts of the challenged Mancos Shale drilling permits on cultural sites in the

Greater Chaco Landscape.” Aplts. Br. at 1 (footnote omitted). Second, they argue

that the BLM violated NEPA because it “failed to analyze the cumulative impacts of

the challenged Mancos Shale drilling permits on environmental resources in the

Greater Chaco Landscape.” Id. at 2. Appellants seek vacatur of the challenged

APDs and a permanent injunction against “any further ground-disturbing activities on

the challenged APDs until BLM complies with the NHPA and NEPA.” Id. at 51.

Federal Appellees assert, as they did in the district court, that Appellants lack

standing to challenge the relevant agency actions.

II

The BLM is subject to two statutes relevant on appeal: the National Historic

Preservation Act and the National Environmental Policy Act. “NHPA[] . . . is a

procedural statute requiring government agencies to stop, look, and listen before

proceeding when their action will affect national historical assets.” Coal. of Concerned

Citizens to Make Art Smart v. Fed. Transit Admin. of U.S. Dep’t of Transp. (Concerned

Citizens), 843 F.3d 886, 905 (10th Cir. 2016) (quoting Presidio Historical Ass’n v.

Presidio Trust, 811 F.3d 1154, 1169 (9th Cir. 2016)). NHPA was enacted “to foster

conditions under which our modern society and our historic property can exist in

productive harmony and fulfill the social, economic, and other requirements of present

and future generations.” 54 U.S.C. § 300101(1).

NEPA is also a procedural statute. It requires agencies to “pause before

9
committing resources to a project and consider the likely environmental impacts of the

preferred course of action as well as reasonable alternatives.” N.M. ex rel. Richardson

v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2008). NEPA has twin aims:

First, it places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action. Second, it ensures
that the agency will inform the public that it has indeed considered
environmental concerns in its decisionmaking process.

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir. 2010)

(quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S 87, 97 (1983)).

Neither NEPA nor NHPA “provide a private right of action,” so we review the

two decisions as “final agency action[s] under the” APA. Utah Envtl. Cong. v.

Russell, 518 F.3d 817, 823 (10th Cir. 2008). We apply the same standard of review as

the district court: the familiar “arbitrary and capricious” standard. Richardson, 565 F.3d

at 704–05; 5 U.S.C. § 706(2)(A). An agency’s decision is arbitrary and capricious if the

agency:

(1) entirely failed to consider an important aspect of the problem, (2)
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise, (3) failed to base
its decision on consideration of the relevant factors, or (4) made a clear
error of judgment.

Richardson, 565 F.3d at 704 (citations and quotations omitted). “A presumption of

validity attaches to the agency action and the burden of proof rests with [the parties]

who challenge such action.” Citizens’ Comm. to Save Our Canyons v. Krueger, 513

F.3d 1169, 1176 (10th Cir. 2008) (quoting Colo. Health Care Ass’n v. Colo. Dep’t of

Soc. Servs., 842 F.2d 1158, 1164 (10th Cir. 1988)). Our deference to the agency is

10
“especially strong where the challenged decisions involve technical or scientific

matters within the agency’s area of expertise.” Morris v. U.S. Nuclear Reg.

Comm’n, 598 F.3d 677, 691 (10th Cir. 2010) (quoting Russell, 518 F.3d at 824).

III

Because standing is jurisdictional, we must first determine whether Appellants

have standing to bring their claims. The district court concluded that Appellants have

standing, and we review that determination de novo. S. Utah Wilderness All. v. Palma,

707 F.3d 1143, 1152 (10th Cir. 2013).

When, as here, an organization sues on behalf of its members, the organization has

standing if:

(a) its members would otherwise have standing to sue in their own right; (b)
the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.

Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). Federal

Appelles do not argue that the interests Appellants seek to protect are not germane to the

organizations’ purposes, nor do they argue that the participation of individual members is

required.3 Our standing inquiry is therefore limited to whether any of Appellants’

members “have standing to sue in their own right.” Id. We conclude that they do.

To establish standing, a plaintiff must show:

(1) it has suffered an “injury in fact” that is (a) concrete and particularized

3
Regardless, both of these requirements are met. Each organization has the
goal of protecting the environment in some way. And nothing indicates that
individual members would need to participate for the court to grant the relief
Appellants request.
11
 and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defendant; and (3) it is likely,
as opposed to merely speculative, that the injury will be redressed by a
favorable decision.

Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2013).

At the summary judgment stage, Appellants must “set forth by affidavit or other evidence

specific facts, which for purposes of the summary judgment motion will be taken to be

true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (citations and quotations

omitted).

A

The injury-in-fact prong of our standing analysis “breaks down into two parts.”

Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir. 1996).

Appellants must show that (1) “in making its decision without following [NEPA’s]

procedures, the agency created an increased risk of actual, threatened, or imminent

environmental harm,” and (2) “the increased risk of environmental harm injures [the

litigant’s] concrete interests by demonstrating either its geographical nexus to, or actual

use of the site of the agency action.” Id. Appellants have satisfied both requirements.

1

Under NEPA, “an injury of alleged increased environmental risks due to an

agency’s uninformed decisionmaking may be the foundation for injury in fact under

Article III.” Id. Here, the allegedly uninformed decisions Appellants challenge are the

BLM’s approval of hundreds of APDs in the Mancos Shale without considering the

indirect and cumulative impacts to cultural sites and environmental resources. Aplts. Br.

12
at 1–2. Appellants have sufficiently tied the BLM’s challenged decisions to increased

environmental risks.

Eisenfeld, a member of San Juan Citizens and WildEarth, asserts that the “Mancos

Shale APD authorizations . . . impact[] the visual landscape, night sky, solitude and quiet,

[and] public health and safety.” JA343. Nichols, a member of WildEarth, states that

“[w]ith the increase in oil and gas development has come light pollution, more truck

traffic, drilling rigs sticking up from the land, smells, dust, and more industrialization.”

JA615. He asserts that recently,

the impacts of Mancos shale oil development have become more visible,
offensive, and degrading of [his] recreational enjoyment of public lands in
the area. The new development has brought more drilling rigs, flaring,
truck traffic, road building, pipeline construction, the construction and
operation of more tanks and production facilities, and just overall more oil
and gas industry presence in the area.

JA607–08. These facts are sufficient to establish “an increased risk of environmental

harm due to [the BLM’s] alleged uninformed decisionmaking,” and they satisfy the first

prong of our injury-in-fact analysis. Lucero, 102 F.3d at 451.

Federal Appellees argue that Appellants fail on this prong of the standing analysis

because the 2003 EIS examined the effects of “drilling 9,942 wells using conventional

techniques,” and Appellants have not shown that the challenged Mancos Shale APDs

“will increase the risk of environmental harm in a manner or to a degree not already

considered.” Fed. Aples. Br. at 26. This argument conflates the standing analysis with

the merits analysis.

As discussed, Appellants have submitted affidavits that show an increase in

13
environmental harm from drilling activities in the Mancos Shale area; this satisfies the

first prong of our injury-in-fact analysis. Whether that environmental harm is of a

manner or to a degree not already considered in the 2003 EIS is a question that goes to

the merits of Appellants’ NEPA claim. Appellants, of course, need not prove the merits

of their claim in order to establish standing. See, e.g., Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 89 (“It is firmly established in our cases that the absence of a valid

(as opposed to arguable) cause of action does not implicate subject-matter jurisdiction . . .

.”).

2

Standing “also requires a plaintiff be among the injured.” Lucero, 102 F.3d at

449. Therefore, Appellants “must be able to show that a separate injury to [their]

concrete, particularized interests flows from the agency’s procedural failure.” Id. (citing

Lujan, 504 U.S. at 572). To demonstrate harm to a plaintiff’s concrete interests, the

plaintiff must “establish either its geographic nexus to, or actual use of the site where the

agency will take or has taken action such that it may be expected to suffer the

environmental consequences of the [challenged] action.” Id. (quotations omitted).

Appellants’ members’ affidavits show a geographic nexus to the affected areas

sufficient to satisfy the second prong of our injury-in-fact analysis. Eisenfeld states that

he “regularly visit[s] the greater Chaco region, including areas in and around Counselor,

Lybrook, and Nageezi,” and that he “intend[s] to go back [to Nageezi] in May and June

14
of 2017.”4 JA338. He also states that he has “visited hundreds of well sites in the

[Greater Chaco] area, and ha[s] frequented lands where many other Mancos Shale wells

are in view.” JA342.

Nichols regularly visits the Greater Chaco region “for recreational enjoyment.”

JA348. He describes visiting Pueblo Pintado, Chaco Culture National Historical Park

(Chaco Park), Nageezi, and Pueblo Alto. Nichols “intend[s] to continue visiting the

Greater Chaco region, including [Chaco Park] and its outliers, as well as public lands in

the region, at least once a year for the foreseeable future,” and had a trip planned for “late

June 2017.” JA351.

Kendra Pinto, a member of Diné, lives in Twin Pines, New Mexico, which is

“located along Highway 550, at the county line of San Juan and Rio Arriba.” JA617.

Beginning in 2013, she noticed a “major increase in Halliburton trucks along 550, and at

the intersection of 7900 and 7950, trucks are staging right off the highway and even on

the county road blocking traffic.” JA618. She “pass[es] through areas that are very

potent in natural gas odors,” and has “seen the giant pillars of fire for the flaring the sites

do.” JA619. She states that “[t]he lights staged at well sites can be as bright as stadium

lights.” Id.

Deborah Green, a member of NRDC, visits the Chaco Canyon area and Chaco

Park at least once a year. She states that “[o]il and gas leasing and development in the

4
Because “standing is determined at the time the action is brought,” Mink v.
Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007), it does not affect our standing
analysis that these dates are now past.
15
Chaco Canyon area/region and [Chaco Park] adversely affect[] the quality of [her] visitor

experience in the area, and if expanded, would do so even more.” JA630. Along

Highway 550, on the way to Chaco Park, Green has experienced

air pollution from gas flares at wells and large amounts of exhaust from the
oil and gas company trucks and heavy equipment; noise pollution from
heavy truck traffic; and light pollution when drilling goes on around the
clock and from gas flares, which are visible from the road for a long
distance at night.

Id.

These affidavits establish that the BLM’s challenged actions impair these

individuals’ actual, concrete interests because the affiants have a geographical nexus to

and actually use the land in the allegedly affected area.

Federal Appellees argue that the affidavits are insufficient for two reasons. First,

they contend that Appellants have “challenged 337 individual agency actions,” each of

which “gives rise to a distinct claim,” and that Appellants “must establish standing . . . for

each challenged APD approval.” Fed. Aples. Br. at 23. Second, they argue that

Appellants “fail to establish a geographical nexus to the challenged agency actions”

because Appellants’ affidavits all refer generally to the “greater Chaco region” or the

“Mancos Shale formation.” Id. at 26–27. Both arguments fail.

As Appellants point out, we have previously rejected similar arguments. In

Palma, the district court held that the plaintiffs did not establish an injury in fact because

they submitted affidavits that “did not identify specific visits to each of the thirty-nine

leases at issue.” 707 F.3d at 1155. This holding, we concluded, misapplied the law. Id.

“Neither our court nor the Supreme Court has ever required an environmental plaintiff to

16
show that it has traversed each bit of land that will be affected by a challenged agency

action.” Id. Rather, “[a] plaintiff who has repeatedly visited a particular site, has

imminent plans to do so again, and whose interest are harmed by a defendant’s conduct

has suffered injury in fact that is concrete and particularized.” Id. at 1156. In Palma, an

organization’s member’s affidavit was “sufficient” when “[h]e specified areas which he

has visited, averred that these specific areas will be affected by oil and gas drilling, and

stated his interests will be harmed by such activity.” Id. The affidavits Appellants

submitted in this case meet this standard.5

Further, maps in the record indicate the geographic proximity of challenged APD

sites to specific areas referenced in Appellants’ affidavits. Nichols attached to his

declaration a map of the area around Chaco Park that shows the proximity of existing and

new wells to Chaco Park and other locations affiants describe. This and other maps in

the record indicate that challenged well sites are within twenty miles or less of Chaco

Park, where Nichols and Green recreate; along Highway 550, the road to enter Chaco

Park; and within several miles of Twin Pines, where Pinto lives, and Nageezi, where

Eisenfeld and Nichols both recreate.

Furthermore, Appellants in this case challenge the BLM’s alleged failure to

5
Although we dismissed the appeal in Palma for lack of ripeness, Palma still
informs our injury-in-fact determination. Because we concluded that the Palma
plaintiffs had established a concrete and particularized injury, we went on to consider
“not whether SUWA is a proper party to challenge BLM’s decision, but when it can
do so.” 707 F.3d at 1157. But our determination that the Palma plaintiffs’ harm was
not ripe does not render obsolete our conclusion that their harm was sufficiently
concrete and imminent. Palma therefore appropriately informs our injury-in-fact
analysis here.
17
evaluate the indirect and cumulative impacts of the APDs, not merely the direct impacts

of drilling to the area immediately surrounding the wellpads. Although Appellants’

NEPA claim is in the form of challenges to numerous individual APDs, the allegedly

affected area extends beyond the boundaries of the well sites and into the greater Chaco

landscape. Affiants’ descriptions of environmental harms including “air pollution from

gas flares at wells,” “exhaust from the oil and gas company trucks and heavy equipment,”

“noise pollution from heavy truck traffic,” and “light pollution” from drilling and “gas

flares,” JA630, which they experience as they live and recreate in the affected area, are

sufficient to place Appellants “among the injured.” Lucero, 102 F.3d at 449.

Appellants have shown through their members’ affidavits that some of their

members have a geographical nexus to, and actually use, land the BLM has exposed to an

increased risk of environmental harm due to its alleged uninformed decisionmaking.

Appellants have established an injury in fact for purposes of Article III.

B

To establish causation, an environmental plaintiff “need only trace the risk of

harm to the agency’s alleged failure to follow [NEPA]’s procedures.” Lucero, 102 F.3d

at 452. A NEPA injury “results not from the agency’s decision, but from the agency’s

uninformed decisionmaking.” Id. (first emphasis added).

Federal Appellees argue that Appellants have not shown that “the relief sought—

the vacatur of BLM’s decisions approving these 337 APDs—will remedy their alleged

injuries.” Fed. Aples. Br. at 29. They assert that Appellants have not established that

their environmental harms were caused by “the 337 challenged permits rather than . . . the

18
approximately 23,000 active oil and gas wells in the San Juan Basin that are not the

subject of this action.” Id. This argument fails.

“In the context of a [NEPA] claim, the injury is the increased risk of

environmental harm to concrete interests . . . .” Lucero, 102 F.3d at 451 (emphasis

added). In this case, Appellants’ asserted injury is the increased risk of environmental

harm from the additional wells, and it is undisputed that BLM has authorized more than

300 additional wells in the Mancos Shale. Appellants have alleged that the BLM did not

comply with NEPA in granting the challenged APDs, and that its alleged failure resulted

in “the agency’s uninformed decisionmaking” as to these additional wells. Id. at 452.

This is sufficient to establish causation.

C

Appellants must also establish that it is “likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561

(quotations omitted). Under NEPA, “a plaintiff need not establish that the ultimate

agency decision would change upon [NEPA] compliance. Rather, the [Plaintiff must

only show] that its injury would be redressed by a favorable decision requiring”

compliance with NEPA procedures. Lucero, 102 F.2d at 452 (quotations and citations

omitted). Here, Appellants challenge the BLM’s decision to grant APDs without

conducting the requisite NEPA analysis. A favorable decision ordering compliance with

NEPA’s procedures would “avert the possibility that the [BLM] may have overlooked

significant environmental consequences of its actions,” thereby redressing Appellants’

alleged harms. Id. Appellants have established redressability.

19
 Because individual members of Appellants’ organizations have suffered a concrete

and particularized injury in fact that is fairly traceable to the BLM’s alleged failure to

comply with NEPA and could be redressed by a favorable decision, we conclude that

Appellants have standing.6

IV

Before analyzing the merits of Appellants’ arguments, we first note the dramatic

insufficiency of the record. Although Appellants challenge more than 300 individual

agency actions, they have provided us with the complete record of the BLM’s

decisionmaking process for only a few of the challenged actions. We are therefore

unable to evaluate the sufficiency of the BLM’s NHPA and NEPA analyses for the vast

majority of the challenged actions. See 10th Cir. R. 10.4(A) (“Counsel must designate a

record on appeal . . . that is sufficient for considering and deciding the appellate issues.”);

id. at 10.4(B) (“When the party asserting an issue fails to provide a record or appendix

sufficient for considering that issue, the court may decline to consider it.”).

As to NHPA, the record indicates that the BLM considered impacts on historic

properties in at least three documents for each APD: (1) a Cultural Resource Survey

(CRS), (2) a Record of Review, and (3) a site-specific EA. Therefore, in order to

6
The harms Appellants allege are the same for their NHPA claims (an
increased risk of harm to Chaco Park and the surrounding area), and NHPA is also a
procedural statute, so the standing analysis for NHPA is the same as for NEPA in this
case. Appellants have established standing under NHPA because they allege a
concrete and particularized injury in fact that is fairly traceable to the BLM’s alleged
failure to comply with NHPA and could be redressed by a favorable decision.

20
evaluate the sufficiency of the BLM’s NHPA analysis, we would need the complete EA,

complete CRS, and complete Record of Review for each challenged APD. The record,

however, contains portions of the BLM’s NHPA analysis for only seventeen different

sets of APDs.7 Further, the vast majority of the NHPA analyses in the record are only

several-page excerpts, not the entire analysis. The record contains the complete EA,

CRS, and Record of Review for only one set of challenged APDs: Kimbeto Wash Unit

Wells 787H, 789H, and 791H.

As to NEPA, the record indicates that the BLM’s NEPA analysis was included in

at least each site-specific EA and the 2003 EIS (to which each of the site-specific EAs

tiered). Therefore, in order to evaluate the sufficiency of the BLM’s NEPA analyses, we

would need the complete 2003 EIS and the complete EA for each challenged APD. The

record, however, only includes portions of twenty-seven EAs. And, as with the NHPA

analyses, the vast majority of the EAs in the record are several-page excerpts, not the

complete EA. From our count, the record contains only six complete EAs: EA 2012-

0268, EA 2014-0272, EA 2015-0036, EA 2015-0066, EA 2016-0029, and EA 2016-

0200/2016-0076. We are therefore able to analyze whether the BLM violated NEPA

only as to those six EAs.

“[O]ur cases addressing deficiencies in the appendix submitted by an appellant

define a guiding principle . . . .” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1190 (10th

7
It appears that many CRSs and Records of Review analyze the impacts on
historic properties for more than one APD. And it appears that most, if not all, EAs
analyze the impacts of more than one APD. Regardless, the record on appeal
contains far fewer than all of the documents containing the BLM’s NHPA analyses.
21
Cir. 2018). Even when an appendix is deficient, if “the materials provided by the

appellant permit us to reach a firm and definite conclusion regarding the merits of an

individual argument or claim within the appeal,” we often will address the argument or

claim, although our rules do not require us to do so. Id. But if “we are forced to venture

a guess as to the merits of an argument or claim, even ‘an informed guess,’ we will

summarily affirm the district court’s judgment.” Id. (collecting cases).

Applying these principles, we conduct our NHPA and NEPA reviews only as to

those challenged actions for which we have the BLM’s complete analysis. For NHPA,

we evaluate the sufficiency of the BLM’s analysis for Kimbeto Wash Unit Wells 787H,

789H, and 791H. For NEPA, we evaluate the sufficiency of the BLM’s analysis for: (1)

EA 2012-0268, (2) EA 2014-0272, (3) EA 2015-0036, (4) EA 2015-0066, (5) EA 2016-

0029, and (6) EA 2016-0200/2016-0076.8 As to all other challenged agency actions, the

record “is insufficient to permit assessment of [Appellants’] claim of error,” and we

affirm the district court. Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1474 (10th

Cir. 1997).

8
We note that even as to these EAs, it is possible that the record does not
contain the BLM’s entire NEPA analysis. See, e.g., JA2143 (stating “Appendix D.
Surface Reclamation Plan,” but not containing any surface reclamation plan).
However, because we do not identify—and the parties do not point to—any missing
portion of these EAs relevant to the challenges Appellants raise on appeal, we
conclude that the record is sufficient for us to evaluate Appellants’ NEPA claims as
to these EAs.
22
 V

Appellants contend that the BLM violated NHPA in three ways. First, they assert

that the BLM arbitrarily defined an area of potential effects (APE) for each APD in a way

that excluded cultural sites that might be indirectly affected by Mancos Shale

development. This argument is premised on Appellants’ assertion that the 2014 Protocol

required the BLM to set a separate APE for indirect effects, which the BLM did not do.

Second, Appellants argue that the BLM did not consider the cumulative effects of

Mancos Shale development on relevant cultural and historic properties. Finally,

Appellants contend that the BLM failed to consult with the State Historic Preservation

Office (SHPO) as required by the 2014 Protocol. Each of these arguments fail.

A

Section 106 of NHPA sets forth specific processes federal agencies must perform

to comply with NHPA. See 36 C.F.R. § 800.1(a). In general, the Section 106 process

involves four steps. First, the agency defines the APE. 36 C.F.R. § 800.4(a). The APE

is “the geographic area or areas within which an undertaking may directly or indirectly

cause alterations in the character or use of historic properties, if any such properties

exist.” Id. § 800.16(d). “Establishing an [APE] requires a high level of agency expertise,

and as such, the agency’s determination is due a substantial amount of discretion.”

Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1092 (10th Cir. 2004).

After defining the APE, the agency identifies historic properties within the APE.

36 C.F.R. § 800.4(b). A historic property is “any prehistoric or historic district, site,

building, structure, or object included on, or eligible for inclusion on” the National

23
Register of Historic Places (NRHP). 54 U.S.C. § 300308. If the agency determines that

no historic properties are present within the APE, it reports that finding and the NHPA

process ends. 36 C.F.R. § 800.4(d)(1).

If historic properties are present within the APE, the agency determines whether

the proposed undertaking will adversely affect those properties. Id. § 800.5. An adverse

effect exists “when an undertaking may alter, directly or indirectly, any of the

characteristics of a historic property that qualify the property for inclusion in the [NRHP]

in a manner that would diminish the integrity of the property’s location, design, setting,

materials, workmanship, feeling, or association.” Id. § 800.5(a)(1). Adverse effects

include “reasonably foreseeable effects caused by the undertaking that may occur later in

time, be farther removed in distance or be cumulative.” Id. They also include the

“[i]ntroduction of visual, atmospheric[,] or audible elements that diminish the integrity of

the property’s significant historic features.” Id. § 800.5(a)(2)(v).

If the agency determines that the undertaking may cause an adverse effect on the

historic properties within the APE, it must “develop and evaluate alternatives or

modifications to the undertaking that could avoid, minimize, or mitigate adverse effects

on historic properties.” Id. § 800.6(a). The Section 106 process does not demand a

particular result, however, because “Section 106 is essentially a procedural statute and

does not impose a substantive mandate” on the agencies governed by it. Valley Cmty.,

373 F.3d at 1085.

Section 106 authorizes agencies to enter into a “programmatic agreement to

govern the implementation of a particular program or the resolution of adverse effects

24
from certain complex project situations or multiple undertakings.” 36 C.F.R.

§ 800.14(b). When a governing programmatic agreement is in place, compliance with the

procedures in that agreement satisfies the agency’s NHPA Section 106 responsibilities

for all covered undertakings. Id. § 800.14(b)(2)(iii).

The parties agree that two programmatic agreements governed the BLM’s NHPA

analyses of the APDs in this case: one agreement that went into effect in 2004 (the 2004

Protocol), and one that went into effect in 2014 (the 2014 Protocol). Therefore, we must

resolve whether Appellants have shown that the BLM violated the requirements of the

2014 Protocol9 as to the single challenged APD properly before us. Although the

compliance requirements for the 2014 Protocol are somewhat different than Section

106’s requirements, the basic NHPA process is the same.

The 2014 Protocol states generally that, “[i]n defining the APE, the BLM will

consider potential direct, indirect, and cumulative effects to historic properties and their

associated settings when setting is an important aspect of integrity, as applicable.”

JA1562. Relevant here, the 2014 Protocol states that “[t]he BLM will follow the

established guidance on standard direct APEs for certain types of projects in Appendix

9
Although Appellants acknowledge the existence and applicability of the 2004
Protocol, they make no NHPA arguments under the 2004 Protocol. Federal
Appellees assert (without citation) that “[a]pproximately 221 of the challenged
drilling permits were approved at the time the 2004 Protocol was operative, and
approximately 163 permits fell under the 2014 Protocol.” Fed. Aples. Br. at 12. All
of Appellants’ NHPA arguments, however, rely on the 2014 Protocol. Because we
conclude that Appellants’ NHPA challenge fails for other reasons, we need not
address the effect Appellants’ failure to argue that the BLM violated the 2004
Protocol might otherwise have on Appellants’ NHPA challenges.
25
B.” Id. (italics omitted). Appendix B sets a “standard APE” for well pads of “the well

pad and construction zone plus 100[] [feet] on each side from the edge of the construction

zone.” JA1594. The 2014 Protocol acknowledges that “[i]n certain circumstances, even

though an undertaking may have a standard APE . . . , the Field Manager, at the

recommendation of the cultural resource specialist, may have justification to require a

larger APE.” Id.

B

Appellants argue that the BLM “failed to account for indirect impacts to cultural

sites, as required by the NHPA and the Protocol.” Aplts. Br. at 30. According to

Appellants, “the Protocol requires BLM to consider a separate APE for indirect effects

where ‘[t]he introduction of physical, visual, or audible elements has the potential to

affect the historic setting or use’ of cultural sites ‘where setting is an important aspect of

integrity.’” Id. at 31 (quoting JA1562). Appellants’ argument fails because the 2014

Protocol merely allows for, it does not require, a separate indirect-effects APE.

The 2014 Protocol acknowledges that “[t]he introduction of physical, visual,

audible, or atmospheric elements has the potential to affect the historic setting or use of

historic properties,” and requires the BLM to “take this into account in defining the limits

of an APE for indirect effects.” JA1562 (emphasis added). Under the 2014 Protocol,

“[t]he indirect APE shall include known or suspected historic properties and their

associated settings where setting is an important aspect of integrity.” Id. The 2014

Protocol continues: “Identification efforts outside of the APE for direct effects shall be at

the approval of the BLM field manager, taking into account the recommendations of the

26
BLM cultural resource specialist and the SHPO.” Id. (emphasis added). In other words,

the BLM need not set—or even consider—a separate indirect-effects APE when

“physical, visual, audible, or atmospheric elements ha[ve] the potential to affect the

historic setting or use of historic properties,” as Appellants argue. JA1562. Rather, the

2014 Protocol only requires that the BLM take indirect effects into account as it exercises

its substantial discretion in setting the APE. The 2014 Protocol therefore contains a

default presumption that the direct and indirect APE will be the same and, to the extent

the BLM will attempt to identify historic properties outside the direct-effects APE, those

identification efforts will be at the approval of the BLM field manager.

Moreover, the CRS, the Record of Review, and the EA for the Kimbeto Wash

Unit wells indicate that the BLM looked to areas far outside the standard direct-effects

APE to identify cultural properties. The EA includes a fulsome discussion of the

potential for indirect impacts from the proposed project, including an analysis of visual

resources. The EA notes that the proposed action is at least 8.5 miles “from the boundary

of [Chaco Park].” Id. It acknowledges that “small portions of the pipeline fall within”

two National Park Service designated Key Observation Points, but concludes that

“[g]iven [the] distance ([over] 11.5 miles) and low profile[,] the pipeline will not be

visible.” JA1949. The EA notes that the project’s “well pad is within a mile of a few

scattered residences,” but concludes that it is “unlikely that the well pad will be visible

from these residences due to area topography.” JA1950. It also states that the “well pad

will not visible from any designated recreation areas.” Id.

The EA also addresses the project’s potential impact on night skies, noting that

27
“[l]ight sources associated with drilling an oil and gas well include a light plant or

generator, a light on top of the rig, vehicle traffic, and flaring.” JA1951.

The necessity for flaring and the duration of flaring varies widely from well
to well and is difficult to predict. With the exception of a few yearly
events, visitors are not allowed access to the canyon rim where the
proposed action may be seen after sunset, minimizing the chance that
visitors would see the direct light. While these lights could reduce the
general darkness of the night sky as seen from [Chaco Park], it is likely the
impact would be imperceptible.

Id. Further, the EA notes that any potential light impacts “would be short-term.” Id.

The CRS and Record of Review also indicate that the BLM looked for historic

sites in an area that extended far beyond the direct-effects APE. The CRS notes that a

record search was conducted and “[n]o sites listed on the State Register of Cultural

Properties or the [NRHP we]re located within a 1 mile [sic] of the project area.” JA2173

(emphasis added). The BLM also conducted pedestrian surveys of a 108.01-acre area,

although the CRS indicates only 25.76 acres in the APE. [Id.] During the pedestrian

surveys, “[w]hen cultural material was encountered, it was pin flagged and the

archaeologists began an intensive search of the area to locate other material.” JA2175.

After eight “Fieldwork Dates,” forty-six “Survey Person Hours” and thirty-nine

“Recording Person Hours,” the BLM’s NHPA review identified four newly recorded

cultural sites, one previously recorded site, and twelve isolated occurrences of cultural

material. Id. The BLM ultimately determined that three of the five sites were ineligible

for listing on the NRHP, and two were eligible but avoided. The BLM therefore

recommended that the project go forward with mitigation requirements, including

employee education, temporary barriers, and archaeological site monitoring.

28
 The CRS, Record of Review, and EA for the Kimbeto Wash Unit wells indicate

that the BLM attempted to identify historic properties in an area far outside the standard

direct-effects APE for well pads, and that the BLM considered the proposed drilling’s

possible visual impacts, including its impact on night skies. Given this analysis,

especially considering that it far exceeded the analysis required by the 2014 Protocol,

Appellants have failed to establish that the BLM violated NHPA by not adequately

considering the indirect effects of the Kimbeto Wash Unit wells.10

C

Appellants also argue that the BLM violated NHPA because it “failed to analyze

the cumulative effects of developing hundreds of new APDs across this culturally

significant landscape.” Aplts. Br. at 38. Appellants’ cumulative-effects argument fails

because Appellants identify no historic properties within the APE the BLM set.

In support of their cumulative-effects argument, Appellants cite to 36 C.F.R.

10
Despite the BLM’s extensive NHPA analysis for the Kimbeto Wash Unit
wells, parts of the record indicate that the BLM may not have considered the
cumulative and indirect impacts of other challenged APDs so thoroughly. For
example, in discussing possible cumulative impacts, some EAs state simply that
“[t]here would be no negative cumulative impact on cultural resources, as significant
cultural sites would be avoided.” JA1154; accord JA1267 (same); JA1333 (same).
Depending on the circumstances—and whether this were indeed the only cumulative
impacts analysis the BLM completed—this cursory analysis could be insufficient.
However, other parts of the record contain more thorough indirect- and
cumulative-effects analyses. Indeed, the apparent difference in the substance of the
BLM’s NHPA analyses for different APDs highlights the need to examine each of the
BLM’s challenged actions individually and with reference to a complete record of the
BLM’s NHPA analysis. And, of course, we cannot determine that the BLM’s
analysis was insufficient for one APD by examining the analysis the BLM conducted
for a different APD.
29
§ 800.5(a)(1), which states that “[a]dverse effects may include reasonably foreseeable

effects caused by the undertaking that may occur later in time, be farther removed in

distance or be cumulative.” This regulation, however, addresses the BLM’s application

of “the criteria of adverse effect to historic properties within the [APE].” 36 C.F.R.

§ 800.5(a) (emphasis added). In other words, the cited language simply means that an

undertaking can have adverse effects on historical properties within the APE, even if the

undertaking only adversely affects the properties through “reasonably foreseeable effects

caused by the undertaking that may . . . be cumulative.” Id. § 800.5(a)(1).

Appellants, however, argue that the BLM abused its discretion by failing to

analyze the cumulative adverse effects horizontal Mancos Shale wells might have “on the

integrity of the historic setting for any number of cultural sites, [Chaco] Park, and the

Greater Chaco Landscape.” Aplts. Br. at 37. This argument ignores that § 800.5(a)(1)

applies to the BLM’s assessment of adverse effects on “historic properties within the

[APE].” 36 C.F.R. § 800.5(a) (emphasis added). And the record indicates that the APE

for the Kimbeto Wash Unit wells did not encompass the “cultural sites, [Chaco] Park, and

the Greater Chaco Landscape,” Aplts. Br. at 37, which Appellants argue would be

negatively impacted by these cumulative effects.11

In sum, Appellants’ cumulative-effects argument is premised on an APE different

11
Indeed, Appellants criticize this aspect of the BLM’s NHPA process,
arguing that the BLM’s APE definition “resulted in the agency excluding from its
analysis all cultural sites likely to be adversely affected by noise, light, and air
pollution.” Aplts. Br. at 30.

30
from the one the BLM defined. Appellants’ argument therefore fails.

D

Appellants also argue that the BLM was required to consult with the SHPO12

because defining APEs for the challenged APDs was “complicated or controversial.”

Aplts. Br. at 35. In support, Appellants cite the 2014 Protocol’s examples of

“complicated or controversial” projects, contending that the APDs at issue qualify

because “‘multiple applicants’ [and] ‘multiple Indian tribes’ are involved.” Id. (quoting

JA1562). Appellants’ SHPO consultation argument fails.

The 2014 Protocol “specifies the manner in which the BLM works with SHPO,”

and “establishes a streamlined consultation process for most BLM undertakings.”

JA1552. It provides that “[t]he BLM will consult with SHPO on undertakings for which

a standard APE . . . has not been developed.” JA1562. Appendix B indicates that if the

BLM utilizes a standard APE for an undertaking, the “BLM and SHPO have consulted”

as to that APE. JA1594 (emphasis added). The 2014 Protocol also states that the BLM

will consult with the SHPO “where the APE is complicated or controversial,” and gives

examples of situations in which defining the APE may be complicated or controversial:

12
Amici All Pueblo Council of Governors and the National Trust for Historic
Preservation in the United States argue that the BLM did not adequately consult with
Native American tribes before approving the APDs. Appellants did not make this
argument in district court, and we decline to consider it for the first time on appeal.
McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent
extraordinary circumstances, we will not consider arguments raised for the first time
on appeal.”).
31
“undertakings involving multiple agencies, multiple states, multiple applicants, and/or

multiple Indian tribes.” JA1562.

The 2014 Protocol therefore establishes a default presumption that the BLM need

not consult with the SHPO “on undertakings for which a standard APE” exists, such as

the undertakings at issue in this case. JA1562. And in this case, the applicability of a

standard APE also undermines a conclusion that the APE is complicated or controversial.

Rather, the existence of a standard APE indicates that the BLM and the SHPO anticipated

that the BLM would often have to define an APE for activities related to oil and gas

drilling, such as well pads, pipelines, and roads. And, seeking to “streamline the

consultation process” for these common undertakings, the BLM and the SHPO

determined that a standard APE for these activities would suffice in most circumstances,

and BLM-SHPO consultation in defining the specific APE would be unnecessary.

JA1552; accord JA1562. We therefore reject Appellants’ argument that the BLM abused

its discretion by not consulting with the SHPO.

Appellants fail to carry their burden of establishing that the BLM violated NHPA.

The BLM’s decision is entitled to a presumption of regularity, and it finds support in the

record. Accordingly, we affirm the district court’s dismissal of Appellants’ NHPA claim.

VI

Appellants’ NEPA argument is as follows: the environmental impacts of the

horizontal Mancos Shale wells are both (1) different in kind from and (2) greater in

magnitude than those considered in the 2003 EIS. Because of this, the 2003 EIS did not

fully analyze the environmental impacts associated with horizontal Mancos Shale wells,

32
so the BLM was not authorized to tier the EAs to the 2003 EIS, and the FONSIs the BLM

issued were arbitrary and capricious. We conclude that, as to five EAs, Appellants have

demonstrated that the BLM needed to—but did not—consider the cumulative impacts of

water resources associated with the 3,960 reasonably foreseeable horizontal Mancos

Shale wells. The BLM’s issuance of FONSIs and approval of APDs associated with

these EAs was therefore arbitrary and capricious and violated NEPA.

A

NEPA “requires federal agencies . . . to analyze environmental consequences

before initiating actions that potentially affect the environment.” Utah Env’t Cong. v.

Bosworth, 443 F.3d 732, 735–36 (10th Cir. 2006). To comply with NEPA, agencies

must prepare a detailed statement of the environmental impact of any “major Federal

action[] significantly affecting the quality of the human environment.” 42 U.S.C.

§ 4332(2)(C).

In conducting its NEPA analysis, a federal agency must prepare, as relevant here,

either “(1) an environmental impact statement [(EIS)], [or] (2) an environmental

assessment [(EA)].” Bosworth, 443 F.3d at 736. An EIS “is required if a proposed

action will ‘significantly affect[] the quality of the human environment.’” Id. (alteration

in original) (quoting 42 U.S.C. § 4332(C)). “If an agency is uncertain whether the

proposed action will significantly affect the environment, it may prepare a considerably

less detailed [EA].” Id.

Although less detailed than an EIS, the EA must still “include brief discussions of

the need for the proposal, of alternatives . . . , [and] of the environmental impacts of the

33
proposed action and alternatives.” 40 C.F.R. § 1508.9(b). Among the environmental

impacts the EA must evaluate are “the cumulative impacts of a project.” WildEarth

Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677, 690 (10th Cir. 2015) (quoting

Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir. 2002) abrogated on other grounds by

Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276 (10th Cir. 2016)).

Cumulative impacts are “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. § 1508.7. Cumulative impacts can result from

“individually minor but collectively significant actions taking place over a long period of

time.” Id.

If, after considering the necessary factors, the agency concludes the action is

unlikely to have a significant environmental impact, it may issue a finding of no

significant impact (FONSI) and proceed with the action. 40 C.F.R. § 1508.13. If the

agency reaches the opposite conclusion, before proceeding with the action, it must

prepare an environmental impact statement to thoroughly analyze the action’s predicted

environmental impacts, including its direct, indirect, and cumulative impacts. 42 U.S.C.

§ 4332(2)(C); 40 C.F.R. §§ 1508.11, 1508.25. However, even when a proposed action

has “significant effects,” the BLM may tier13 an EA to an existing EIS—and thereby

13
“Tiering refers to the coverage of general matters in broader environmental
impact statements . . . with subsequent narrower statements or environmental
analyses . . . incorporating by reference the general discussions and concentrating
solely on the issues specific to the statement subsequently prepared.” 40 C.F.R.
§ 1508.28.
34
reach a FONSI—if the EIS to which it tiers “fully analyzed those significant effects.” 43

C.F.R. § 46.140(c). But if the “relevant analysis in the [EIS] is not sufficiently

comprehensive or adequate to support further decisions, the [EA] must explain this and

provide any necessary analysis.” Id. § 46.140(b).

“The role of a federal court under NEPA is to review the EIS, [or] EA, . . . as the

case may be, and ‘simply . . . ensure that the agency has adequately considered and

disclosed the environmental impact of its actions.” Concerned Citizens, 843 F.3d at 902

(third alteration in original) (quoting Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209,

1256–57 (10th Cir. 2011)). In conducting this review, we apply a “rule of reason

standard” to determine whether claimed NEPA violations “are merely flyspecks, or are

significant enough to defeat the goals of informed decision making and informed public

comment.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1163

(10th Cir. 2002).

B

Appellants first argue that the challenged APDs cause environmental impacts

qualitatively different from those considered in the 2003 EIS because the APDs authorize

drilling in the southern portion of the Mancos Shale, while the 2003 EIS “only evaluated

development in the northern portion.” Aplts. Br. at 42. Appellants’ argument fails

because the 2003 EIS evaluated the effects of drilling throughout the entire San Juan

Basin—an area that includes the location of the challenged APDs.

The 2003 EIS was developed to “analyze[] the environmental impacts of oil and

gas leasing and development in the San Juan Basin in New Mexico.” JA767. The

35
“planning area” addressed in the 2003 EIS “includes all of San Juan County, most of

McKinley County, western Rio Arriba County, and northwestern Sandoval County.”

JA768. All challenged APDs are within this area.

The 2003 EIS denoted the northeastern portion of the planning area as a “high

development area” for oil and gas production, but that area was so identified because

“more than 99 percent of the federal oil and gas resources [we]re currently leased” in that

area. JA778. Nothing in the 2003 EIS indicates that the BLM analyzed the

environmental impacts of drilling on only the high development area. Indeed, the 2003

EIS’s chapter on the affected environment contains a lengthy discussion of the cultural

resources present in the Chaco Canyon. The record, therefore, does not support

Appellants’ assertion that the challenged APDs are in a geographic area not considered

by the 2003 EIS.

C

Appellants also argue that the BLM has never fully analyzed the cumulative

environmental impacts of drilling 3,960 horizontal wells in the Mancos Shale because

those impacts exceed the environmental impacts evaluated in the 2003 EIS in two

specific ways: air pollution and water use. As to air pollution, we conclude that

Appellants have not provided us with a record from which we can assess the BLM’s

NEPA analysis. As to water use, we conclude that Appellants have shown that the BLM

never considered the cumulative impact of the water use associated with the 3,960

reasonably foreseeable horizontal Mancos Shale wells for five specific EAs. We

therefore reverse the district court’s dismissal of Appellants’ NEPA claims as to EAs

36
2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076.14

1

Appellants’ cumulative-impacts argument relies on one assumption the parties

dispute: that the BLM’s NEPA analysis must consider the impacts associated with all

3,960 wells the 2014 RFDS identified as possible if full-field Mancos Shale

development occurs. We conclude that the 2014 RFDS made it reasonably

foreseeable that 3,960 horizontal Mancos Shale wells would be drilled, and NEPA

therefore required the BLM to consider the cumulative impacts of those wells in the

EAs it conducted for subsequent horizontal Mancos Shale well APDs.

The 2014 RFDS “collect[ed] and analyze[d] geological and engineering

evidence[] . . . to determine the potential subsurface development of the Gallup/Mancos

play.” JA1665. Based on this analysis, it estimated that full development of the Mancos

Shale would result in 3,960 new wells. And, although it predicted “a five[-]year delay in

significant activity” in the Mancos Shale area “due to unfavorable economics,” it also

predicted that well activity would “rapidly increase” once the economics became more

favorable. JA1662.

The BLM itself has relied on RFDSs to define the scope of “reasonably

14
EA 2012-0268 was completed in June 2012, more than two years before the
2014 RFDS issued. Appellants’ cumulative-impacts argument relies entirely on the
2014 RFDS’s prediction of 3,960 horizontal Mancos Shale wells. Because
Appellants provide no reason other than the 2014 RFDS that the BLM’s NEPA
analysis should have included the environmental impacts from 3,960 horizontal
Mancos Shale wells, Appellants do not establish that the BLM violated NEPA as to
EA 2012-0268.
37
foreseeable” actions for the purposes of its cumulative-impacts analyses. For example,

two of the EAs before us cite to the 2014 RFDS in their discussions of cumulative

impacts. In describing the methodology used to analyze cumulative impacts, EA 2016-

0029 and EA 2016-0200/2016-0076 discuss oil and gas development predicted in the

2014 RFDS, noting that the 2014 RFDS

identified high, moderate, and low potential regions for oil development of
the Mancos-Gallup Formation. Within the high potential region, full
development would include 5 wells per section, resulting in 1,600
completions. Within the moderate potential region, full development
would include one well per section, resulting in 330 completions. Within
the low potential region, full development would include one well per
township, resulting in 30 well completions. Additionally, the [2014 RFDS]
predicted 2,000 gas wells could be development [sic] in the northeastern
corner of the [BLM’s Farmington Field Office].

JA1926; JA2096. The BLM also relied on the 2001 RFDS for projected drilling amounts

in the 2003 EIS. The 2003 EIS states that the 2001 RFDS “form[ed] the basis for

projected oil and gas development in the planning area over the next 20 years.” JA769–

70. Especially in light of the BLM’s past reliance on the drilling projected in RFDSs, we

conclude that once the 2014 RFDS issued, the 3,960 horizontal Mancos Shale wells

predicted in that document were “reasonably foreseeable future actions.” 40 C.F.R.

§ 1508.7; accord Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992) (“[A]s in other

legal contexts, the terms ‘likely’ and ‘foreseeable,’ as applied to a type of environmental

impact, are properly interpreted as meaning that the impact is sufficiently likely to occur

that a person of ordinary prudence would take it into account in reaching a decision.”).

The BLM therefore needed to consider the cumulative environmental impacts associated

with the reasonably foreseeable 3,960 horizontal Mancos Shale wells when it conducted

38
EAs for the challenged APDs.

Intervenor Appellees’ arguments do not persuade us otherwise. First, we of

course acknowledge that “full-field [Mancos Shale] development is not at issue in

this case.” Int. Aples. Br. at 38. But that does not excuse the BLM from NEPA’s

requirement that it “take a ‘hard look’ at the environmental consequences before”

approving the challenged APDs. Balt. Gas & Elec. Co., 462 U.S. at 97. And, in this

case, that involved considering the cumulative impacts of the 3,960 reasonably

foreseeable horizontal Mancos Shale wells. See 40 C.F.R. §§ 1508.9(b), 1508.7.

Second, we reject Intervenor Appellees’ argument that the BLM did not need

to consider the cumulative impact of the predicted 3,960 wells because “no operator

has proposed to drill” all of those wells. Int. Aples. Br. at 40. Once the 2014 RFDS

issued, it became reasonably foreseeable to the BLM that the projected wells would

be drilled, so the BLM needed to consider the cumulative impact of all those wells,

even if the wells were not going to be drilled imminently. 40 C.F.R. § 1508.7

(“Cumulative impacts can result from individually minor but collectively significant

actions taking place over a period of time.” (emphasis added)).

Finally, we reject Intervenor Appellees’ argument that our conclusion here would

“automatically foreclose authorization of all individual activities in the [planning] area”

once the BLM initiates an RMP amendment process. Int. Aples. Br. at 42. Rather, our

decision forecloses only those activities with environmental impacts—direct, indirect, or

cumulative—that have not been considered in either a site-specific EA or a broader

NEPA document to which the EA tiers. But that is the purpose of NEPA: to “require[]

39
federal agencies . . . to analyze environmental consequences before initiating actions that

potentially affect the environment.” Bosworth, 443 F.3d at 735–36.

We conclude that the 3,960 horizontal Mancos Shale wells predicted in the 2014

RFDS were reasonably foreseeable after the 2014 RFDS issued. The BLM therefore had

to consider the cumulative impacts of all 3,960 wells when it conducted its site-specific

EAs.

2

Appellants argue that the air pollution caused by the horizontal Mancos Shale

wells will exceed the air pollution amounts considered in the 2003 EIS. In support,

Appellants point to a table that purports to “illustrate the total combined impacts of past,

present, and reasonably foreseeable future development.” Aplts. Br. at 43. Although the

numbers in Appellants’ table indicate that horizontal wells have a much greater

environmental impact than do vertical wells, the numbers Appellants provide for the

environmental impacts of vertical wells are not supported by the record. More

importantly, the record does not contain the BLM’s complete air pollution analysis, so we

are unable to fully evaluate the air pollution argument Appellants make.

Appellants’ air pollution argument relies on the following assumptions:15

Well Type Construction Time Nox CO VOC PM10
(tpy) (tpy) (tpy) (tpy)
Vertical 9 days 2.30 0.63 0.20 0.92

15
NOx is nitrous oxide; CO is carbon monoxide; VOC is volatile organic
compound; and PM10 is particulate matter at 10 microns. Each is a form of air
pollution.
40
 Horizontal 25 days 6.13 1.64 0.55 2.54

Id. at 44. Although these numbers support the conclusion that horizontal wells have a

greater environmental impact than do vertical wells, these numbers are not supported

either by the part of the record to which Appellants cite or by any other part of the record

we could identify.

First, Appellants cite to “JA2331–32 ([pages 4-61–4-62 of the] 2003 EIS

providing qualitative assessment of air quality impairment and violations of air

standards)” and “JA2328–29 (emissions estimates based on developing 663 wells per

year)” in support of the numbers they list for air pollution associated with vertical wells.

Aplts. Br. at 44 n.22. The first cited portion of the 2003 EIS, however, analyzes the

overall potential effect of contemplated drilling operations on air quality in the project

area. Those pages do not analyze the air pollution contemplated by construction of

vertical wells, as Appellants indicate they do. Moreover, there is no discernible

connection between any of the numbers in this cited portion of the 2003 EIS and the

numbers in Appellants’ chart.

The same is true of the other portion of the record Appellants cite: JA2328–29

(pages 4-58 and 4-59 of the 2003 EIS). That portion of the 2003 EIS provides an

“estimation of emissions for each year” under Alternative B.16 JA2328. A table on the

16
This portion of the 2003 EIS analyzes emissions associated with Alternative
B—which the BLM did not select. Elsewhere, the 2003 EIS notes that air emissions
under Alternative D, the selected alternative, would be “99.7% of that under
Alternative B.” JA782. Air emission estimates for Alternative B therefore could
inform estimates for Alternative D.
41
second cited page contains categories that match the categories in Appellants’ chart—

VOC, CO, Nox, and PM10. However, the table indicates that it depicts “Project Year 1

and Project Year 20 Annual Air Emissions Associated with Gas Production” under

Alternative B. JA2329 (emphasis added). The numbers, therefore, do not represent air

pollution associated with vertical well construction. And, once again, there is no

discernible connection between any air pollution numbers in these pages and the vertical-

well numbers in Appellants’ table.

Finally, Appellants indicate that the well construction time for a vertical well is

nine days. Again, nothing in the part of the record to which Appellants cite supports that

assertion. However, the 2003 EIS notes elsewhere that “the time to complete individual

wells is generally between one and two months.” JA2287 (emphasis added). This

indicates that Appellants’ cited nine days is incorrect.

More fundamentally, the record does not contain crucial aspects of the BLM’s

NEPA analysis. Specifically, the record does not include the BLM’s complete air

pollution analysis. The 2003 EIS notes that “Appendix J includes the emissions estimates

for Alternative D.” JA2378. Appendix J also “presents data used to estimate annual air

emissions” for each alternative. JA834. But Appendix J is not in the record.

Further, from our review, no other part of the record includes data that would

facilitate the comparison on which Appellants rely: the gross amount of NOx, CO, VOC,

and PM10 created in the construction of a single vertical well. Those numbers might be in

Appendix J—and they might even be the numbers Appellants include in their chart—but

we have no way of determining that because Appendix J is not in the record. We

42
therefore cannot evaluate whether, as Appellants argue, “the 3,945 existing vertically

drilled and the reasonably foreseeable 3,960 horizontally drilled Mancos Shale wells

exceed the total impacts predicted in the 2003 EIS.” Aplts. Br. at 45.

Appellants do not include the BLM’s complete analysis of air pollution in the

2003 EIS, and therefore offer no way to compare the impacts contemplated by the 2003

EIS with the impacts that could result from 3,960 horizontal Mancos Shale wells. The

BLM’s NEPA analysis “is entitled to the presumption of regularity,” Stiles, 654 F.3d at

1045, and Appellants have not carried their burden of demonstrating that the BLM acted

arbitrarily or capriciously.

3

Appellants also argue that the total water used for drilling 3,960 horizontal

Mancos Shale wells will exceed the water use contemplated in the 2003 EIS, and the

BLM therefore abused its discretion in tiering the EAs to the 2003 EIS, issuing FONSIs,

and approving APDs. We agree with Appellants that, as to five challenged EAs, the

BLM did not consider the cumulative water use associated with the 3,960 reasonably

foreseeable horizontal Mancos Shale wells. Therefore, as to these five EAs, the BLM’s

issuance of FONSIs and approval of APDs was arbitrary and capricious.

Appellants’ water-resources argument, like their air-pollution argument, is based

largely on calculations in their comparison table. First, Appellants state that drilling a

single horizontal well will use 1,020,000 gallons of water. In contrast, Appellants assert

the 2003 EIS predicted that drilling a single vertical well would use 283,500 gallons of

water. Appellants then multiply each of these numbers by the total number of wells

43
(3,960 reasonably foreseeable horizontal wells; 3,945 already drilled vertical wells) and

arrive at a total water consumption amount of over 5 billion gallons of water. According

to Appellants, the 2003 EIS contemplated total water use of just over 2.8 billion gallons.

Therefore, argue Appellants, when the 3,960 reasonably foreseeable horizontal Mancos

Shale wells are taken into account, the projected water use increases by 82% over what

the 2003 EIS considered.

Although we note some discrepancies between Appellants’ cited numbers and

the numbers in the record,17 we reject Federal Appellees’ argument that Appellants’

water-resources calculations “do not withstand scrutiny.” Fed. Aples. Br. at 33. Federal

Appellees argue generally that water use could be decreased through “new strategies and

technologies,” Fed. Aples. Br. at 35 (quotations omitted), but they do not point us to any

part of the record that contradicts Appellants’ assertions that the cumulative water use

associated with the reasonably foreseeable 3,960 wells dramatically exceeds the total

17
First, the average of 6,750 barrels of water per well on which Appellants
base their vertical well calculations is the figure contemplated under Alternative A,
which the BLM did not select. For Alternative D, the BLM’s chosen alternative, the
2003 EIS predicted total water use of 7,000 acre-feet or an average of 0.70 acre-feet
(228,095 gallons) of water for each well.
And although the 2014 RFDS noted an average water use of 3.13 acre-feet
(1.02 million gallons) for the 55 horizontal wells that had reported water use
numbers, other figures to which Appellants cite in their water use comparison are not
supported by the record. Specifically, Appellants indicate that three EAs “calculat[e]
966,000 gallons per horizontal well.” Aplts. Br. at 44 n.21. Each of these three EAs,
however, estimate that “23,000 barrels of useable water would be required to drill
each well,” but “approximately 10,000 to 11,000 barrels would be recovered for
reuse,” resulting in a net water use for these wells of 12,000 to 13,000 barrels, or
504,000 to 546,000 gallons. JA1071, JA1075, JA1083. 966,000 gallons is the
amount of water in 23,000 barrels, indicating that Appellants ignored the EAs’
prediction that water would be recovered for reuse.
44
water use contemplated in the 2003 EIS. We conclude that, regardless of the minor

inaccuracies in their calculations, Appellants have established that the difference between

the water use contemplated in the 2003 EIS and the water use associated with drilling the

reasonably foreseeable horizontal Mancos Shale wells is more than a “mere[] flyspeck.”

Utahns for Better Transp., 305 F.3d at 1163.

None of the five EAs before us considered the cumulative impacts of the water use

associated with all 3,960 reasonably foreseeable horizontal Mancos Shale wells. The

only discussion of water resources in EA 2015-0036 is as follows:

[T]he operator would follow ‘Pit Rule’ guidelines and Onshore Order
No. 1. Drilling operations would utilize a closed-loop system. Drilling
of the horizontal lateral would be accomplished with water-based mud.
All cuttings would be hauled to a commercial disposal facility or land
farm.

JA1241. Three other EAs (EA 2015-0066, EA 2016-0029, and EA 2016-0200/2016-

0076) all list “Groundwater Resources” as an “issue considered but not analyzed.”

JA1305; JA1911–12; JA2082–83. Each of these EAs discusses the general process

for hydraulic fracturing, then concludes that “[n]o impacts to surface water or

freshwater-bearing groundwater aquifers are expected to occur from hydraulic

fracturing of these proposed wells.” JA1912; JA2083; accord JA1306 (containing the

same substantive analysis with slightly different wording). EAs 2015-0036, 2015-

0066, 2016-0029, and 2016-0200/2016-0076 contain no discussion of the cumulative

impacts related to water resources.

EA 2014-0272 is the only EA that contains any discussion of the cumulative

impacts on water resources. Its cumulative-impact analysis states:

45
 Reasonably foreseeable development within the Largo sub-
watershed may include an estimated additional 1,811 oil and gas wells and
related facilities. Surface-disturbing activities that would be associated
with these actions may affect an estimated 6,756 acres ([2003 EIS], page 4-
7). The [2003 EIS] determined that the primary cumulative impacts on
water quality would result from surface disturbance, which would generate
increased sediment yields ([2003 EIS] pages 4-123 and 4-124). Cumulative
effects to water resources from the proposed action would be maximized
shortly after construction begins and would decrease over time as
reclamation efforts progress.

The proposed action would cumulatively contribute approximately
20.0 acres of long-term disturbance in the watershed. Cumulative impacts
to surface waters would be related to short-term sedimentation or flow
changes. Surface-disturbing activities other than the proposed action that
may cause accelerated erosion include—but are not limited to—
construction of roads, other facilities, and installation of trenches for
utilities; road maintenance such as grading or ditch cleaning; public
recreational activities; vegetation manipulation and management activities;
prescribed and natural fires; and livestock grazing.

JA1141. This analysis of the cumulative impacts on water resources does not address the

water consumption associated with the 3,960 reasonably foreseeable Mancos Shale wells.

As to these five EAs, the BLM was required to, but did not, consider the

cumulative impacts on water resources associated with drilling the 3,960 reasonably

foreseeable horizontal Mancos Shale wells.18 The BLM therefore acted arbitrarily and

capriciously in issuing FONSIs and approving APDs associated with these EAs.

Federal Appellees make two additional arguments in support of the BLM’s NEPA

analysis, both of which we reject.

18
All five EAs referenced the 2003 EIS in their analysis of the cumulative
impacts associated with air pollution, but not water use.
46
 Federal Appellees first argue that Appellants advocate “too narrow a definition of

cumulative impact—one that would require specific, quantitative measurements of all

potential effects.” Fed. Aples. Br. at 33. Instead, argue Federal Appellees, the 2003 EIS

analyzed cumulative impacts via a “broad, qualitative approach . . . consistent with the

purpose of [a] programmatic EIS.” Id. This argument fails because the record indicates

that (1) the BLM did quantify the cumulative water-resources impacts of proposed

drilling in the 2003 EIS, (2) the BLM could have quantified the cumulative water-

resources impacts of the horizontal Mancos Shale wells, and (3) water use is an important

aspect of the environmental impacts associated with well drilling.

First, the 2003 EIS quantified the total amount of water required for drilling

operations in each considered alternative. Second, four of the five EAs we consider also

included a quantitative measure of the amount of water the drilling operations for the

proposed APDs would use. Finally, the 2003 EIS acknowledged that “[t]he primary

issues and concerns regarding water resource problems caused by oil and gas

development involve . . . water consumption and use.” JA2283. Likewise, the 2014

RFDS noted that “[t]he development of the Mancos play will require additional fresh

water for stimulation purposes,” and acknowledged that “horizontal completions . . .

require large volumes of water for hydraulic fracturing.” JA1686.

We therefore reject Federal Appellees’ argument that the BLM could conduct an

adequate cumulative-impacts analysis without quantifying the amount of reasonably

foreseeable water use. The BLM had non-speculative figures that it could use to quantify

the cumulative impact of the drilling, and the water-resources impacts were important.

47
The BLM was therefore required to consider those impacts to comply with NEPA. See

Wyoming v. USDA, 661 F.3d at 1253 (rejecting the argument that an EIS failed to

adequately consider cumulative impacts because “cumulative impacts that are too

speculative or hypothetical to meaningfully contribute to NEPA’s goals of public

disclosure and informed decisionmaking need not be considered”); Utah Envtl. Congress

v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007) (“An agency’s decision will be deemed

arbitrary and capricious if the agency entirely failed to consider an important aspect of

the problem[] . . . . [or] failed to base its decision on consideration of the relevant factors .

. . .” (internal quotations and alterations omitted)).

We also reject Federal Appellees argument that “the site-specific APD EAs

addressed cumulative drilling effects that differ in type and magnitude from those

examined in the” 2003 EIS. Fed. Aples. Br. at 37. As discussed, the record indicates

otherwise. None of the five EAs we consider contain any analysis of the cumulative

impact to water resources from the 3,960 reasonably foreseeable horizontal Mancos Shale

wells. And the record supports the conclusion that the water use associated with those

3,960 wells far exceeds the water use considered in the 2003 EIS. The 2003 EIS’s water-

resources analysis was therefore not “sufficiently comprehensive or adequate” to support

the proposed drilling, and the EAs were required to “provide any necessary analysis.” 43

C.F.R. § 46.140(b). Because they did not, the BLM violated NEPA.

Appellants have established that the water use associated with drilling the 3,960

reasonably foreseeable horizontal Mancos Shale wells exceeded the water use

contemplated in the 2003 EIS in a way that made the BLM’s failure to consider the

48
cumulative water impacts “significant enough to defeat the goals of informed

decisionmaking and informed public comment.” Utahns for Better Transp, 305 F.3d at

1163. We conclude that the BLM acted arbitrarily and capriciously in issuing FONSIs

and approving APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-

0029, and 2016-0200/2016-0076.

VII

Because we conclude that the BLM violated NEPA, we remand to the district

court with instructions to vacate the FONSIs and APDs associated with EAs 2014-0272,

2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076, and to remand those EAs

to the BLM to conduct a proper NEPA analysis.

“Under the APA, courts ‘shall’ ‘hold unlawful and set aside agency action’

that is found to be arbitrary or capricious.” WildEarth Guardians v. U.S. Bureau of

Land Mgmt., 870 F.3d 1222, 1239 (10th Cir. 2017) (quoting 5 U.S.C. § 706(2)(A)).

“Vacatur of agency action is a common, and often appropriate form of injunctive

relief granted by district courts.” Id. “In the past, we have done all of the following

when placed in a similar posture: (1) reversed and remanded without instructions, (2)

reversed and remanded with instructions to vacate, and (3) vacated agency

decisions.” Id. (collecting cases). And remand to the agency is usually the

appropriate decision in this situation. See Middle Rio Grande Conservancy Dist. v.

Norton, 294 F.3d 1220, 1225–26 (10th Cir. 2002) (“[A] reviewing court normally

remands when it finds an agency’s decision not to conduct an EIS arbitrary or

capricious.”).

49
 Given our remand instructions to vacate, however, there is no need to also

“enjoin any further ground-disturbing activities on the APDs” as Appellants request.

Aplts. Br. at 51. Once the APDs are vacated, drilling operations will have to stop

because “[n]o drilling operations, nor surface disturbance preliminary thereto, may be

commenced prior to” APD approval. 43 C.F.R. § 3162.3-1(c). Because vacatur is

“sufficient to redress [Appellants’] injury, no recourse to the additional and

extraordinary relief of an injunction [is] warranted.” Monsanto Co. v. Geertson Seed

Farms, 561 U.S. 139, 166 (2010).

VIII

For the foregoing reasons, we affirm in part and reverse in part the judgment of the

district court.19 We remand to the district court with instructions to vacate the FONSIs

and APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and

2016-0200/2016-0076, and to remand those EAs to the BLM to conduct a proper NEPA

analysis.

19
We deny Navajo Allottees Alice Benally, Lilly Comanche, Virginia
Harrison, Samuel Harrison, Dolora Hesuse, Verna Martinez, and Lois Phoenix’s
motion to file an amicus brief because “the matters asserted in [Navajo Allottees’
amicus brief] are [not] relevant to the disposition of the case,” Fed. R. App. P.
29(a)(3)(B).
50