Theodore Roosevelt Conservation Partnership v. Salazar

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2010 Decided July 23, 2010

No. 09-5162

THEODORE ROOSEVELT CONSERVATION PARTNERSHIP,
APPELLANT

v.

KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS THE
SECRETARY OF THE UNITED STATES DEPARTMENT OF
INTERIOR, ET AL.,
APPELLEES

Consolidated with 09-5193

Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-01486)

Sharon Buccino and Thomas R. Wilmoth argued the causes
for appellants. With them on the briefs was Donald G.
Blankenau. Benjamin H. Longstreth entered an appearance.

Robert H. Oakley, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Andrew C. Mergen and Katherine Hazard, Attorneys. R. Craig
 2

Lawrence, Assistant U.S. Attorney, entered an appearance.

Michael B. Wigmore and Sandra P. Franco were on the
brief for intervenors Anadarko Petroleum Corporation and
Warren Resources, Inc.

Bruce A. Salzburg, Attorney General, Attorney General's
Office of State of Wyoming, Jay Jerde, Deputy Attorney
General, and David J. Willms, Assistant Attorney General, were
on the brief for intervenor State of Wyoming.

Before: SENTELLE, Chief Judge, ROGERS and GARLAND,
Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: In March 2007, the Bureau of
Land Management (BLM or Bureau), an agency within the
Department of the Interior, released a Record of Decision that
established the Atlantic Rim Natural Gas Field Development
Project (Atlantic Rim Project). The project was designed to
manage the resources of more than 270,000 acres of publicly
and privately owned land in south-central Wyoming. Shortly
after issuing the Record of Decision, the Bureau began
authorizing specific applications for permission to drill wells
that accorded with the project. Theodore Roosevelt
Conservation Partnership, Natural Resources Defense Council,
and other environmental organizations filed for declaratory and
injunctive relief in the district court, arguing the Bureau’s
Record of Decision, its accompanying environmental impact
statement, and subsequent drilling permits violated the National
Environmental Policy Act, the Federal Land Policy and
Management Act, and the Administrative Procedure Act. The
district court granted summary judgment for the Bureau. The
environmental organizations appeal from the judgment, alleging
 3

errors in both the administrative proceedings and the district
court’s evidentiary rulings. We affirm the district court on all
issues.

I. Background

A. Legal Framework

1. National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. § 4321 et seq., requires that federal agencies consider
fully the environmental effects of their proposed actions. See
Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 374 (D.C.
Cir. 1999) (quoting Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 194 (D.C. Cir. 1991)). It is an “essentially
procedural” statute, meant to ensure “a fully informed and well-
considered decision, not necessarily” the best decision. Vermont
Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S. 519, 558 (1978). To ensure a well-considered
decision, NEPA requires that when an agency proposes a “major
Federal action[] significantly affecting the quality of the human
environment,” the agency must prepare and circulate for public
review and comment an environmental impact statement (EIS)
that examines the environmental impact of the proposed action
and compares the action to other alternatives. 42 U.S.C.
§ 4332(2)(C).

An EIS must be detailed, and it must be prepared in
consultation with other federal agencies with special expertise
relevant to the proposed action’s environmental impact. Id. It
must also assess the impact the proposed project will have in
conjunction with other projects in the same and surrounding
areas — “cumulative impact analysis” — and must include past,
present, and reasonably foreseeable future actions of any agency
 4

or person. See 40 C.F.R. § 1508.25 (requiring that an EIS
address cumulative impact); 40 C.F.R. § 1508.7 (defining
cumulative impact); see also TOMAC, Taxpayers of Mich.
Against Casinos v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006)
(describing what a meaningful cumulative impact analysis must
identify). Finally, an EIS must explain in detail “any adverse
environmental effects which cannot be avoided should the
proposal be implemented.” 42 U.S.C. § 4332(2)(C)(ii). Implicit
in this statutory requirement “is an understanding that the EIS
will discuss the extent to which adverse effects can be avoided.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
351–52 (1989). NEPA regulations, therefore, require an agency
to discuss possible mitigation measures in the EIS and Record
of Decision. 40 C.F.R. §§ 1508.25(b)(3), 1502.14(f),
1502.16(h), 1505.2(c). The discussion must include “sufficient
detail to ensure that environmental consequences have been
fairly evaluated.” Methow Valley, 490 U.S. at 352. However,
NEPA “does not require agencies to discuss any particular
mitigation plans that they might put in place,” nor does it
“require agencies — or third parties — to effect any.” Citizens
Against Burlington, 938 F.2d at 206.

Not every decision requires an EIS, however. If it is
unclear whether an action will “significantly affect[] the quality
of the human environment,” 42 U.S.C. § 4332(2)(C), agencies
may prepare an environmental assessment (EA). See 40 C.F.R.
§ 1501.4(a)–(b). An EA is a “concise public document . . . that
serves to . . . [b]riefly provide sufficient evidence and analysis
for determining whether to prepare an [EIS] or a finding of no
significant impact [(FONSI)].” 40 C.F.R. § 1508.9(a)(1). The
Department of the Interior has decided that its agencies,
including the Bureau of Land Management, must prepare an EA
for each proposed federal action, unless it is subject to a
categorical exclusion, covered by an earlier environmental
document, or the relevant bureau has already decided to prepare
 5

an EIS. 43 C.F.R. § 46.300(a).

2. Federal Land Policy and Management Act

Bureau of Land Management actions are guided by the
Federal Land Policy and Management Act of 1976 (FLPMA),
43 U.S.C. § 1701 et seq. Under FLPMA, the Bureau must
“manage the public lands under principles of multiple use and
sustained yield.” 43 U.S.C. § 1732(a). Multiple use
management requires balancing various competing uses of land
— “including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and [uses serving] natural
scenic, scientific and historical values” — to optimally manage
the land. 43 U.S.C. § 1702(c). The sustained yield principle
“requires BLM to control depleting uses over time, so as to
ensure a high level of valuable uses in the future.” Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 58 (2004) (citing 43
U.S.C. § 1702(h)).

The Bureau uses a multi-step planning and decisionmaking
process to fulfill this mandate under FLPMA. The Bureau
begins by creating a land use plan for a geographic region. This
plan is called a resource management plan (RMP). A resource
management plan “describes, for a particular area, allowable
uses, goals for future condition of the land, and specific next
steps.” S. Utah Wilderness Alliance, 542 U.S. at 59. It does not,
however, include a decision whether to undertake or approve
any specific action. 43 C.F.R. § 1601.0-5(n). Specific projects
are reviewed and approved separately, but must conform to the
relevant RMP. 43 C.F.R. § 1610.5-3(a).

B. Factual Background

The Bureau’s field office in Rawlins, Wyoming oversees
the management of public lands within a 12.5 million acre area
 6

in south-central Wyoming that straddles the Continental Divide.
During the decisionmaking at issue in this case, the area was
governed by a land use plan called the Great Divide Resource
Management Plan.1 Released in 1990 as part of the Bureau’s
FLPMA planning and decisionmaking process, the Great Divide
RMP set forth long-term goals and objectives for the use and
management of resources in the approximately four million
acres of public land and additional one million acres of federal
mineral estate that constitute the BLM-administered land within
the Great Divide Resource Area. BUREAU OF LAND
MANAGEMENT, RAWLINS DISTRICT OFFICE, GREAT DIVIDE
RESOURCE AREA RECORD OF DECISION AND APPROVED
RESOURCE MANAGEMENT PLAN 3 (November 1990) (“Great
Divide RMP”). Under the RMP, the entire Great Divide
Resource Area was open to oil and gas leasing, subject to
restrictions around certain areas such as historic trails, sage
grouse breeding grounds, and winter range for big game. Id. at
30, 32.

Within the Great Divide Resource Area sits the Atlantic
Rim Project Area, which encompasses over 270,000 acres of
publicly and privately owned land in Carbon County, Wyoming.
Theodore Roosevelt Conservation P’ship v. Salazar, 605 F.
Supp. 2d 263, 270 (D.D.C. 2009) (“TRCP”). The area contains
valuable oil and natural gas deposits, provides habitat to many
species of wildlife, supplies grazing land for local ranchers’
herds, and supports various human endeavors such as big game
hunting and wildlife observation. Already the project area hosts
a number of oil and gas wells, which account for more than five
percent of Wyoming’s total natural gas production. Id.

1
The Great Divide RMP has been revised and is now called
the Rawlins RMP. See BUREAU OF LAND MANAGEMENT, RAWLINS
FIELD OFFICE, RECORD OF DECISION AND APPROVED RAWLINS
RESOURCE MANAGEMENT PLAN (December 2008).
 7

In 2001, the Bureau began the review and approval process
for the Atlantic Rim Natural Gas Field Development Project
(Atlantic Rim Project). See BUREAU OF LAND MANAGEMENT,
FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE ATLANTIC
RIM NATURAL GAS FIELD DEVELOPMENT PROJECT, CARBON
COUNTY, WYOMING, at 1-1 (November 2006) (“FEIS”); Notice
of Intent, 66 Fed. Reg. 33,975 (June 26, 2001). Because the
project would have a substantial environmental impact, the
Bureau released a draft EIS in December 2005 as required under
NEPA. BUREAU OF L AND M ANAGEMENT , DRAFT
ENVIRONMENTAL IMPACT STATEMENT FOR THE ATLANTIC RIM
NATURAL GAS FIELD DEVELOPMENT PROJECT, CARBON
COUNTY, WYOMING (December 2005) (“DEIS”). The Bureau
finalized the EIS in November 2006. FEIS (introductory letter).
In March 2007, the Bureau released its Record of Decision
explaining, based on its analysis in the EIS, the action it decided
to undertake. BUREAU OF LAND MANAGEMENT, RECORD OF
DECISION, ENVIRONMENTAL IMPACT STATEMENT FOR THE
ATLANTIC RIM NATURAL GAS FIELD DEVELOPMENT PROJECT,
CARBON COUNTY, WYOMING (March 2007) (“ROD”); see also
Notice of Availability, 72 Fed. Reg. 28,518 (May 21, 2007).

The Atlantic Rim Project’s Record of Decision anticipates
the Bureau approving approximately 2000 new natural gas wells
in the project area over the span of 30 to 50 years. ROD at 1–3.
This drilling is expected to cause surface disturbance to
approximately 13,600 acres during the life of the project. That
disruption will impair certain human activities, decrease soil
quality, encourage erosion, diminish grazing land, and release
various gases that contribute to ground-level ozone pollution.
The project will also affect the population of the greater sage
grouse, a species listed as a “Sensitive Species” by the Bureau.
FEIS at 3-94. According to the Bureau’s Manual on Special
Status Species, such as sensitive species, the Bureau shall work
“to improve the condition of special status species and their
 8

habitats to a point where their special status recognition is no
longer warranted.” BUREAU OF LAND MANAGEMENT, BLM
MANUAL 6840 - SPECIAL STATUS SPECIES MANAGEMENT, at .01
(2001). The manual further states that any actions or projects
“authorized by BLM shall further the conservation of . . . special
status species.” Id. at .12. Currently, the Atlantic Rim Project
Area is abundantly covered with sage brush — habitat well
suited for the greater sage grouse’s nesting and breeding.
However, because the Atlantic Rim Project will disturb so much
surface area, the greater sage grouse may be expected to suffer
a long-term decline in population, precluding the improvement
of the sage grouse’s Sensitive Species status. See FEIS at 4-69,
4-83.

To mitigate the environmental damage the project will
cause, the Record of Decision and final EIS outline conditions
of approval for any proposal to drill. Overall surface
disturbance in the project area cannot exceed 7600 acres at any
given time, and total surface disturbance over the life of the
project is capped at 13,600 acres. ROD at B-4. The decision
also outlines conditions of approval designed to protect plant
species, wildlife, and human activities. For example, drilling
may not occur with a 0.25 mile radius of sage grouse breeding
grounds, and drilling and other human activity is forbidden in
certain areas at certain times of the year. Id. at B-16. The
Bureau also included in the Record of Decision an adaptive
management plan, which identifies various goals for continued
monitoring and mitigation of the project’s adverse impacts on
wildlife and other resources during the life of the project.

Though the Atlantic Rim Project outlined the basic
conditions of approval for drilling applications in the area, the
Record of Decision left many specific resource management
decisions for a case-by-case determination in each drilling
application submitted over the life of the project. While public
 9

involvement in these applications is less substantial than in the
preparation of an EIS, the Bureau stated in the Atlantic Rim
Record of Decision that it would post public notice of each
application to drill. Also, as required by regulation, the Bureau
would conduct an environmental assessment (EA) before
approving any specific application. See 43 C.F.R. § 46.300(a).

Shortly after releasing the Record of Decision in March
2007, the Bureau approved some applications for permission to
drill. When an application is approved, by itself or in concert
with other applications, the Bureau’s approval is known as a
plan of development, or POD. These plans of development
specify where and how a well may be drilled, where supporting
infrastructure such as roads may be built, and the precise
mitigation measures that must be followed. On June 28, 2007,
the Bureau approved two PODs in the Catalina unit of the
project area for a total of 39 new wells. The approvals were
accompanied by EAs with findings of no significant impact. On
August 16, 2007, the Bureau approved two PODs in the Sun
Dog unit for a total of 51 new wells. Again, the approvals were
accompanied by EAs with findings of no significant impact.

C. Procedural Background

In June 2007, Theodore Roosevelt Conservation Partnership
(TRCP) and various other environmental groups filed appeals to
the Interior Board of Land Appeals within the Department of the
Interior, pursuant to 43 C.F.R. § 4.410(a) (“Any party to a case
who is adversely affected by a decision of an officer of the
Bureau of Land Management . . . shall have a right to appeal to
the Board [of Land Appeals] . . . .”). See also 43 C.F.R.
§ 4.1(b)(3). Their appeals challenged the validity of the Atlantic
Rim Project Record of Decision and final EIS. TRCP also
petitioned the Board to stay the effect of the Record of Decision
during the pendency of the appeals. The Board denied the
 10

petition. Theodore Roosevelt Conservation P’ship, IBLA 2007-
208 (Sept. 5, 2007) (order). TRCP later dismissed its appeal
before the Board.

During the pendency of TRCP’s stay petition before the
Board, TRCP filed in the district court a complaint requesting
injunctive relief against the Department of the Interior and the
Bureau. Shortly thereafter, Natural Resources Defense Council
and other environmental groups (collectively, NRDC) filed a
similar complaint. Three energy companies that planned to drill
in the Atlantic Rim Project Area — Anadarko Petroleum Co.,
Warren Resources, Inc., and Double Eagle Petroleum Co. —
successfully moved to intervene as defendants in both cases, as
did the state of Wyoming. In 2007, the district court denied a
motion by NRDC for preliminary injunctive relief. Natural Res.
Def. Council v. Kempthorne, 525 F. Supp. 2d 115, 117 (D.D.C.
2007).

The court declined to consolidate TRCP and NRDC’s cases,
but issued a single decision granting summary judgment in both
cases in favor of the Department of the Interior, the Bureau, and
the intervenors. TRCP, 605 F. Supp. 2d at 269. The groups
separately appealed the district court’s grant of summary
judgment, citing, inter alia, the court’s decision to exclude
certain evidence that was not part of the administrative record.
This court consolidated the appeals. Later, we granted the
motion of Double Eagle Petroleum to withdraw as a party to the
appeal.

II. Analysis

As a threshold matter, we address the issue of standing.
Though neither appellant asserted the required elements for
standing in their joint brief in this court, both TRCP and NRDC
did supply to the district court declarations that were sufficient
 11

to establish standing. Accordingly, we hold that Appellants
have standing to bring their claims before us.

To establish standing, a party must, as a constitutional
minimum, show that (1) it suffers an “injury in fact” that is
concrete, particularized, and actual or imminent, (2) there is a
causal relationship between the injury and the conduct
complained of, and (3) it is likely that the injury will be
redressed by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Each organization in this
case relies on associational standing, whereby a group brings
suit on behalf of its members. Associational standing requires
an organization to show that “(1) at least one of its members
would have standing to sue in his own right, (2) the interests the
association seeks to protect are germane to its purpose, and (3)
neither the claim asserted nor the relief requested requires that
an individual member of the association participate in the
lawsuit.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir.
2002).

Before the district court, TRCP and NRDC submitted
declarations from members of their organizations that
established those members’ past and intended future use of the
land governed by the Atlantic Rim Project, and the particular
harm to that activity posed by the Atlantic Rim Project and
approved PODs. The injuries asserted satisfy the Lujan
requirements, giving the individuals standing to sue in their own
right. Because TRCP and NRDC’s claims and requested relief
are germane to their organizational purposes and do not require
any individual member to participate in the lawsuit, the
organizations have standing to sue on behalf of those members.
We note that only NRDC’s declarations establish standing for
the Catalina and Sun Dog PODs in particular. However, only
NRDC argued that those PODs violated NEPA, and so the
relevant party established the necessary standing.
 12

Turning to the merits of TRCP’s and NRDC’s arguments,
we review de novo the district court’s grant of summary
judgment. Am. Wildlands v. Kempthorne, 530 F.3d 991, 998
(D.C. Cir. 2008). As for the disputed evidentiary rulings, this
court reviews the “district court’s refusal to supplement the
administrative record for abuse of discretion.” Novartis
Pharmaceuticals Corp. v. Leavitt, 435 F.3d 344, 348 (D.C. Cir.
2006).

Neither NEPA nor FLPMA provides a private right of
action, so the Administrative Procedure Act (APA) supplies the
applicable vehicle for review of the Bureau’s actions. By the
terms of the APA, a reviewing court shall set aside any agency
action, finding, or conclusion that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).

On appeal to this court, TRCP and NRDC share some
arguments, but not all. However, because each group
established standing for the claims it makes, and because the
relief sought is not affected by which group made which
argument, for the sake of simplicity we will not distinguish
between their arguments. Instead, we refer collectively to TRCP
and NRDC as “Appellants” and credit all arguments to them
jointly. Those arguments are as follows:

(1) the scope of the Atlantic Rim Project exceeded the
scope of the Great Divide RMP, violating both FLPMA and
NEPA;
(2) the Bureau’s reliance on the “Scheffe method” to
estimate ozone concentrations violated NEPA and was
arbitrary and capricious;
(3) the Bureau’s exclusion of certain possible future
projects from its cumulative impact analysis in the Record
of Decision was arbitrary and capricious and a violation of
 13

NEPA, and the district court erred when it excluded extra-
record evidence about the cumulative impact analysis;
(4) the adaptive management plan and other mitigation
efforts in the Record of Decision were too vague to satisfy
NEPA;
(5) the Atlantic Rim Project violated the multiple use and
sustained yield goals of FLPMA; and
(6) the Bureau failed to provide sufficient public notice and
opportunity for public comment on the environmental
assessments for the PODs as required by NEPA.

We address each argument in turn.

A. The Atlantic Rim Project’s Conformity with the Great
Divide RMP

When the approval process for the Atlantic Rim Project
began in 2001, the Great Divide RMP was more than a decade
old. In February 2002, the Bureau published a notice of intent
to revise the Great Divide RMP. 67 Fed. Reg. 8701 (Feb. 25,
2002). The Bureau completed the Atlantic Rim Project Record
of Decision in March 2007 before making the RMP revision
available for public comment the following January. 73 Fed.
Reg. 881 (Jan. 4, 2008) (announcing availability of the draft of
the revised RMP). Appellants argue this violated the Council on
Environmental Quality’s regulations implementing NEPA.

Section 1502.1 of 40 C.F.R. sets forth the purpose of an
EIS: ensuring that NEPA’s policies and goals “are infused into
the ongoing programs and actions of the Federal Government.”
Section 1502.2(f) specifies that, to achieve that purpose,
agencies preparing an EIS “shall not commit resources
prejudicing the selection of alternatives before making a final
decision.” Further, § 1506.1(a) provides that “[u]ntil an agency
 14

issues a record of decision . . . no action concerning the proposal
shall be taken which would . . . [l]imit the choice of reasonable
alternatives.” According to Appellants, the Atlantic Rim Project
improperly precommitted the RMP revision to approve at least
as much new development as the Atlantic Rim Project had
already approved.

This argument presupposes that the Atlantic Rim Project
exceeded the existing 1990 RMP because the restriction on
precommitting resources can apply only if the project was “not
covered by an existing program statement.” 40 C.F.R. § 1506.1.
Appellants’ argument therefore turns on whether the Atlantic
Rim Project was covered by the existing RMP. If the RMP
covered the Atlantic Rim Project, the Bureau did not improperly
precommit resources as it revised the Great Divide RMP. If,
however, the RMP did not cover the project, Appellants argue,
the Bureau not only precommitted resources in violation of
NEPA regulations, but also violated FLPMA and its
implementing regulations by not managing the area in
accordance with the RMP. See 43 U.S.C. § 1732(a) (“The
Secretary shall manage the public lands . . . in accordance with
the land use plans developed by him . . . .”); 43 C.F.R. § 1610.5-
3 (“All future resource management authorizations and actions
. . . shall conform to the approved plan.”).

The draft EIS for the Great Divide RMP anticipated
approximately 1440 oil and gas wells being drilled between
1987 and 2007. See BUREAU OF LAND MANAGEMENT, DRAFT
RESOURCE MANAGEMENT PLAN/ENVIRONMENTAL IMPACT
STATEMENT FOR THE MEDICINE BOW AND DIVIDE RESOURCE
AREAS, RAWLINS DISTRICT, WYOMING 220 (April 1987). Over
the next two decades, however, the Bureau approved projects in
the Great Divide that authorized wells far in excess of that
original estimate. By the time the Atlantic Rim Project was
approved, the Bureau had approved more than 3600 wells in the
 15

Great Divide Resource Area. The Atlantic Rim Project itself
authorized another 2000. Appellants argue that the Atlantic Rim
Project approved development so far in excess of the RMP
projection that it rendered the project inconsistent with the RMP,
violating NEPA and FLPMA. 40 C.F.R. §§ 1502.2(f), 1506.1
(NEPA regulations); 43 U.S.C. § 1732(a) (FLPMA statute). But
while the Bureau’s various projects did far exceed the projection
of 1440 wells described in the draft EIS for the Great Divide
RMP, there was no NEPA or FLPMA violation.

The final EIS and Record of Decision for the Great Divide
RMP did not include the 1440 well estimate. Instead, they
simply said that the entire planning area was available for oil
and gas leasing subject to certain environmental restrictions.
BUREAU OF LAND MANAGEMENT, PROPOSED RESOURCE
MANAGEMENT PLAN AND FINAL ENVIRONMENTAL IMPACT
STATEMENT FOR THE GREAT DIVIDE RESOURCE AREA 52 (June
1988); Great Divide RMP at 30. Even if the 1440 well estimate
were incorporated in the final decision, the estimate would not
impose a hard cap on the actual number of wells that can be
drilled in the Great Divide Resource Area. Appellants concede
this point, which is consistent with the Interior Board of Land
Appeals’ interpretation of reasonably foreseeable development
scenarios in RMPs. According to the Board, a projection like
the one in the Great Divide draft EIS serves as an analytical
baseline for evaluating environmental impacts, not “a point past
which further exploration and development is prohibited.” Wy.
Outdoor Council, 164 IBLA 84, 99 (2004); see also Biodiversity
Conservation Alliance, 174 IBLA 1, 9 (2008).

Moreover, while Appellants claim that “vastly” more than
1440 wells have been drilled in the lands covered by the Great
Divide RMP, they do not cite evidence demonstrating that the
environmental impact of that drilling has exceeded the impact
contemplated by the Great Divide RMP. As the Director of the
 16

BLM explained, “exceeding the number of wells projected . . .
may not result in exceeding the predicted level of environmental
effects.” Instruction Memorandum No. 2004-089 from the BLM
Director to all State Directors, at Attachment 1-2 (Jan. 16,
2004). A 2004 analysis found “about 3,700 acres of long term
disturbance as yet unallocated under the Great Divide RMP,”
despite the existence of “about 3000 active wells in the
[Rawlins] Field Office.” Bureau of Land Management, Draft
Briefing Paper, Interim Development Program at the Atlantic
Rim EIS Project Area (June 7, 2004). By April 2005, a BLM
official observed: “While originally it appeared we were
completely constrained by the RMP revision . . . , today we are
recognizing that there is still some [long term disturbance] acres
available under the Great Divide RMP . . . , thus making the
EISs we’ve been working on the limiting factor instead of the
RMP revision.” Email from D. Simons, BLM Rawlins Field
Office, to M. Storzer, BLM Rawlins Field Office (Apr. 26,
2005).

Under these circumstances it was reasonable for the Bureau
to decide that the existing Great Divide RMP encompassed the
development proposed by the Atlantic Rim Project. Therefore,
the Bureau’s decision does not violate the NEPA prohibition of
precommitting resources.

B. The Scheffe Method

The drilling activities and associated development
anticipated by the Atlantic Rim Project will emit pollution,
including nitrous oxides and volatile organic compounds that
can raise ground-level ozone concentrations. As part of the
project’s EIS, the Bureau estimated the effect the proposed
development would have on ozone concentrations using a
mathematical model developed in 1988 called the “Scheffe
method.” Appellants maintain that the Scheffe method was
 17

outdated by the time it was used in the Atlantic Rim Project’s
EIS. Therefore, argue Appellants, the Bureau violated NEPA
because using an outdated method meant the agency could not
take a sufficiently “hard look” at the project’s impact on ozone
concentrations. See Methow Valley, 490 U.S. at 350 (explaining
that NEPA’s procedures require agencies to take a “hard look”
at environmental consequences). In addition, Appellants argue
that using the Scheffe method violated 40 C.F.R. § 1502.24,
which requires that an agency ensure the scientific integrity of
their environmental impact statements. We reject both
arguments.

One of the comments for the Atlantic Rim Project EIS
argued that the Scheffe method was obsolete because of its
deficiencies compared with newer models. In response to this
comment and related comments on other projects, the Bureau
produced a memorandum that in effect admitted the Scheffe
method used outdated measurements and assumptions. The
Bureau therefore adopted a newer method for future air quality
assessments. However, it continued to use estimates derived
using the Scheffe method for the Atlantic Rim Project EIS. See
BLM, Information Memorandum for State Director, Ozone
Issue and BLM-WY Response, at 1 (Aug. 31, 2006) (“Ozone
Issue Letter”).

In the Atlantic Rim Project’s final EIS and Record of
Decision, the Bureau justified its decision to keep the estimates
derived by the Scheffe method, explaining that it is an “overly
conservative” screening level modeling tool, FEIS at 4-12; see
id. App’x F, 44 (noting that problems with the Scheffe model
were likely to result in “overestimates of the actual [ozone]
impacts that would occur”), and was an acceptable method at the
time the air quality analysis was conducted, ROD at 7. The
Record of Decision also established that the Bureau will require
monitoring of ozone and other pollutants and use adaptive
 18

management to mitigate impacts if needed. Id.

When the Bureau decided in August 2006 to use a different
methodology for future air quality analyses, the Atlantic Rim
Project’s air quality analysis had been completed one month
earlier. Compare Ozone Issue Letter with FEIS at App’x F.
Going back to recalculate ozone impacts would have delayed the
Atlantic Rim Project schedule. And because a still newer
method could have been developed during that re-analysis, the
process could have been endless. See W. Coal Traffic League v.
ICC, 735 F.2d 1408, 1411 (D.C. Cir. 1984) (declining to require
an agency to “behave like Penelope, unraveling each day’s work
to start the web again the next day”). Given the Bureau’s
conclusion that the Scheffe method was an acceptable and
conservative method when the analysis was carried out, the
Bureau reasonably decided to retain the old estimates rather than
undertake a new air quality analysis. On these facts, as noted by
the district court, “an agency’s reliance on outdated data is not
arbitrary or capricious, ‘particularly given the many months
required to conduct full [analysis] with the new data.’” TRCP,
605 F. Supp. 2d at 273 (quoting Village of Bensenville v. FAA,
457 F.3d 52, 71 (D.C. Cir. 2006)).

The Record of Decision explains that the Scheffe method
was an acceptable method at the time the air quality analysis
was completed. ROD at 7, E-8. Before undertaking the
analysis, the Bureau contacted various interested agencies,
including the Environmental Protection Agency, the National
Park Service, and the Wyoming Department of Environmental
Quality. None objected to using the Scheffe method. In
addition, the final EIS discusses the weaknesses of the Scheffe
method, but notes that those weaknesses likely resulted in
“overestimates of the actual [ozone] impacts that would occur.”
FEIS at App’x F, 44. See also Wy. Outdoor Council, 176 IBLA
15, 33 (2008) (quoting the original 1988 paper establishing the
 19

Scheffe method, which said the estimates produced “should be
interpreted as conservative predictions which would exceed
ozon[e] formation produced by actual episodic events”). This
was a substantive response to the criticisms of the Scheffe
method that satisfied both NEPA’s “hard look” requirement and
the APA arbitrary and capricious standard. See Methow Valley,
490 U.S. at 350; 5 U.S.C. § 706(2)(A).

The Bureau’s discussion of the Scheffe method’s validity
also explains why, contrary to Appellants’ contention, 40 C.F.R.
§ 1502.24 was not violated. That regulation requires agencies
to ensure the scientific integrity of their environmental impact
statements. 40 C.F.R. § 1502.24. It does not require that an
agency employ the best, most cutting-edge methodologies. In
this case, the Bureau reasonably concluded that the estimates
derived by the Scheffe method were adequate and did not need
to be recalculated using a different method.

Appellants further contend that even if retaining the
Scheffe-derived estimates in the final EIS was not arbitrary and
capricious or a violation of NEPA, drafting environmental
assessments for the PODs necessitated the recalculation of the
proposed wells’ likely effects on ozone concentrations. When
the Bureau conducted environmental assessments for the PODs
in the Catalina and Sun Dog units, it referred back to the ozone
concentration estimates in the Atlantic Rim Project’s EIS that
were produced using the Scheffe method, at a time when the
Bureau had already decided not to use the Scheffe method any
longer. Therefore, argue Appellants, the Bureau should have
gone back to “fill in any holes” in the original ozone impact
assessment when it carried out the drilling permit environmental
assessments. Appellants Br. at 40 (citing Kern v. U.S. Bureau
of Land Mgmt., 284 F.3d 1062, 1078 (9th Cir. 2002)).
 20

This argument is also unavailing. In general, an agency
preparing an environmental assessment for a drilling permit is
not required to reevaluate the analyses included in the relevant
project’s EIS. Instead, NEPA regulations allow “tiering,” which
permits site-specific environmental analyses to incorporate by
reference the general discussions of prior, broader
environmental impact statements. 40 C.F.R. § 1508.28. The
regulations expressly provide that “[t]iering is appropriate when
the sequence of statements or analyses is . . . [f]rom a program,
plan, or policy environmental impact statement to a program,
plan, or policy statement or analysis of lesser scope or to a site-
specific statement or analysis.” § 1508.28(a) (emphasis added).
While courts have required environmental assessments to
analyze certain impacts for the first time when the broader
analysis did not address the impact in question at all, see, e.g.,
Kern, 284 F.3d at 1078, this is not such a case. The Atlantic
Rim Project did address the impact drilling would have on ozone
concentrations. Tiering a POD’s environmental assessment to
that analysis in compliance with the governing regulation is
hardly arbitrary and capricious. Appellants’ objection that a
method used in the earlier analysis had been surpassed by
superior technology by the time of the tiered analysis does not
invalidate the later assessment. Projects like the Atlantic Rim
Project are designed to span several decades, and it is not
surprising that scientific conventions and protocols develop and
change in that time (though here they did so sooner rather than
later). NEPA does not limit tiering to analyses still on the
scientific cutting edge. Nothing in the law requires agencies to
reevaluate their existing environmental analyses each time the
original methodologies are surpassed by new developments.

C. Cumulative Impact Analysis

Appellants next argue that the Bureau erred in its
assessment of the cumulative impact of the Atlantic Rim Project.
 21

Pursuant to 40 C.F.R. § 1508.25, the EIS for the Atlantic Rim
Project must reflect not only the direct impact of the project
itself, but the “cumulative effects” on the environment of the
project “incorporating the effects of other projects into the
background ‘data base’ of the project at issue.” Grand Canyon
Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002) (quoting
Coalition on Sensible Transp. v. Dole, 826 F.2d 60, 70–71 (D.C.
Cir. 1987)). “Cumulative effect” is defined in the applicable
regulations as

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
regardless of what agency (Federal or non-Federal) or
person undertakes such other actions. Cumulative impacts
can result from individually minor but collectively
significant actions taking place over a period of time.

40 C.F.R. § 1508.7.

Appellants assert that in light of its obligation to include
cumulative impact, and the regulatory description of what that
encompasses, the Bureau was arbitrary and capricious in not
including within the environment impact statement for the
Atlantic Rim Project the environmental effects of two other
potential development projects near the Atlantic Rim area: the
Hiawatha Regional Energy Development Project and the
Continental Divide–Creston Natural Gas Project. Those two
projects began years after the Bureau began its analysis on the
Atlantic Rim Project in 2001, but, at least in conceptualization,
overlapped in time with the Bureau’s consideration of its EIS for
the Atlantic Rim Project. More specifically, the Bureau began
its analysis of the Atlantic Rim Project in 2001 with the
publication of a notice of intent to prepare an EIS. 66 Fed. Reg.
33,975 (June 26, 2001). Unrelated to that development, in April
 22

and November 2005, energy companies submitted proposals to
the Bureau to drill wells in the Continental Divide–Creston area
in Carbon and Sweetwater Counties, Wyoming. See Notice of
Intent, 71 Fed. Reg. 10,989 (March 3, 2006). In December
2005, the Bureau finished the Atlantic Rim Project draft EIS.
DEIS (introductory letter). On March 3, 2006, the Bureau
published in the Federal Register a notice of intent to prepare an
EIS for the Continental Divide–Creston Natural Gas Project,
incorporating both the April and November 2005 proposals.
Notice of Intent, 71 Fed. Reg. 10,989. Also in March 2006,
various natural gas development companies submitted a
proposal to drill wells in parts of Sweetwater County, Wyoming
and Moffat County, Colorado. The Bureau named the proposed
project the Hiawatha Regional Energy Development Project and
on September 6, 2006, published a notice of intent to prepare an
EIS. Notice of Intent, 71 Fed. Reg. 52,571. The Bureau
completed the Atlantic Rim final EIS in November 2006, and
the Record of Decision in March 2007. FEIS (introductory
letter); ROD (title page). In short, by the time the Bureau
completed the Atlantic Rim Project Record of Decision, the
Hiawatha and Continental Divide–Creston projects were still in
the early stages of development, with only notices of intent to
mark their progress. Or, as the district court put it, “the
Continental Divide–Creston and Hiawatha projects had only
begun to work their way through the NEPA approval process
when the FEIS was compiled.” TRCP, 605 F. Supp. 2d at 278
(internal quotation marks and citation omitted).

We agree with the district court that the incipient notion of
the two projects expressed in notices of intent to prepare an EIS
for each did not establish reasonable forseeability of the
incremental impact of those projects in connection with the
Atlantic Rim Project for purposes of § 1508.7. The history of
the Atlantic Rim Project itself demonstrates that projects in their
infancy have uncertain futures. In early 2000, a company
 23

proposed drilling 96 wells in three areas within what would
become the Atlantic Rim Project Area. The Bureau began an
environmental assessment of the proposed project in February
2000, but before the analysis was completed, the proposing
company sold its leasehold. The new owners withdrew the 96-
well project application in May 2001. Later that month, the new
owners submitted a much larger proposal encompassing more
land, which proposed drilling up to 3880 coalbed methane wells.
FEIS at 1-1. When the Bureau published its notice of intent to
prepare an EIS for the Atlantic Rim Project in June 2001, the
notice reflected the new proposal. 66 Fed. Reg. 33,975 (June
26, 2001); see TRCP, 605 F. Supp. 2d at 270. By the time the
Bureau completed the draft EIS in December 2005, well
operators had revised their original estimate to 2000 wells.
DEIS at S-1. In other words, the proposed size of the Atlantic
Rim Project varied widely over time, and the Bureau did not
necessarily know the actual scope of the project, much less its
environmental impact, until several years after the Bureau
published its notice of intent to prepare an EIS.

Granted, a project need not be finalized to be “reasonably
foreseeable” under 40 C.F.R. § 1508.7. But neither was it
arbitrary and capricious for the Bureau to omit from its
cumulative impact analysis other projects for which nothing had
been completed except notices of intent, each published after the
Atlantic Rim Project’s draft EIS had been released. The Bureau
did not violate NEPA by concluding that these projects were too
preliminary to meaningfully estimate their cumulative impacts
in the Atlantic Rim Project EIS.

Appellants argue that under Kleppe v. Sierra Club, 427 U.S.
390 (1976), agencies must consider the cumulative impact of all
concurrently pending proposals, including proposals with
uncertain futures. However, contrary to Appellants’ assertion,
Kleppe does not mandate that a cumulative impact analysis
 24

include all existing proposals. Appellants’ Br. at 42 (citing 427
U.S. at 406, 410). In Kleppe, the Court considered, among other
issues, whether the Department of the Interior was required to
prepare a single EIS for all proposed coal projects in a region.
427 U.S. at 409–10. While agreeing that NEPA “may require a
comprehensive impact statement in certain situations where
several proposed actions are pending at the same time,” id. at
409 (citing § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C)), the
Court held the Department of the Interior did not act arbitrarily
when it decided not to prepare a single EIS for all the proposed
actions in the region, id. at 414.

It is true that under 42 U.S.C. § 4332, “when several
proposals for [] related actions that will have cumulative or
synergistic environmental impact upon a region are pending
concurrently before an agency, their environmental
consequences must be considered together.” Kleppe, 427 U.S.
at 410. But as this court has explained, the purpose of the
cumulative impact requirement “is to prevent agencies from
dividing one project into multiple individual actions ‘each of
which has an insignificant environmental impact, but which
collectively have a substantial impact.’” Natural Res. Def.
Council, Inc. v. Hodel, 865 F.2d 288, 297–98 (D.C. Cir. 1988)
(quoting Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.
1985)). An agency need not revise an almost complete
environmental impact statement to accommodate new proposals
submitted to the agency, regardless of the uncertainty of
maturation.

Before the district court, Appellants also sought to
introduce evidence about a draft EIS from September 2002 that
discussed wind energy development on Bureau-administered
lands in the western United States. Appellants planned to use
the evidence to argue the Atlantic Rim Project’s cumulative
impact analysis arbitrarily and capriciously failed to consider the
 25

impact of certain wind energy development projects. The district
court, however, excluded the evidence which was not a part of
the administrative record. See 605 F. Supp. 2d at 278 n.10. The
court therefore also refused to entertain Appellants’ claims
based on that evidence that the cumulative impact analysis was
deficient for failing to consider the wind projects. Id. We hold
that the district court’s decision was not an abuse of discretion.

The APA limits judicial review to the administrative record
“except when there has been a ‘strong showing of bad faith or
improper behavior’ or when the record is so bare that it prevents
effective judicial review.” Commercial Drapery Contractors,
Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998) (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
420 (1971)). True, “it may sometimes be appropriate to resort
to extra-record information” to determine whether an
administrative record is deficient. Esch v. Yeutter, 876 F.2d
976, 991 (D.C. Cir. 1989). But this is the exception, not the
rule. Appellants offer nothing to convince us that the district
court abused its discretion by following the general rule for
review of administrative records.

“Persons challenging an agency’s compliance with NEPA
must ‘structure their participation so that it . . . alerts the agency
to the [parties’] position and contentions.’” Dep’t of Transp. v.
Pub. Citizen, 541 U.S. 752, 764 (2004) (alteration in original)
(quoting Vermont Yankee, 435 U.S. at 553). In this case,
Appellants had ample opportunity to submit the evidence of the
environmental impact of wind energy development to the
Bureau as it crafted the Atlantic Rim Project EIS, but they did
not. Appellants had ample opportunity to seek to introduce the
evidence before the Interior Board of Land Appeals, but they did
not. The district court was entirely within its discretion,
therefore, to conclude it was unnecessary to let Appellants
introduce evidence in court that they had never sought to
 26

introduce to the agency.

Appellants hint at agency impropriety when they cite
Environmental Defense Fund, Inc. v. Blum, 458 F. Supp. 650
(D.D.C. 1978), for their argument. There, the court explained
that an agency may not “skew the record for review in its favor
by excluding from that record information in its own files which
has great pertinence to the proceeding in question.” Id. at 661
(internal quotation mark omitted). However, the extra-record
evidence in that case was highly (and obviously) pertinent
material, much of which “was not the subject of adversarial
comment because it remained unknown to the plaintiff and was
considered without plaintiff’s knowledge.” Id. at 660. That is
not the case here. While it is true the wind energy documents
were created by the Bureau itself, they were also available to
Appellants. Nor is there anything to suggest the Bureau actually
considered those documents without Appellants’ knowledge.
An agency does not “skew” the administrative record when it
does not include agency documents that were not used in
making its decision but were available to commenters.

D. Adaptive Management Plan

Appellants next argue that the Atlantic Rim Project’s
mitigation measures, and specifically its adaptive management
plan, violate NEPA’s mandate to discuss possible mitigation
measures in its EIS and Record of Decision. See 40 C.F.R.
§§ 1508.25(b)(3), 1502.14(f), 1502.16(h), 1505.2(c); see also
supra at 4. They also claim that the adaptive management plan
violates NEPA’s requirement to evaluate environmental impacts
before actions are taken. See 40 C.F.R. § 1500.1(b) (explaining
that the purpose of NEPA’s procedures is to make information
available before decisions are made). Again, we reject both
arguments.
 27

According to Appellants, the Atlantic Rim Project’s
adaptive management plan is the “lynchpin” of the project’s
mitigation and monitoring efforts. They argue this court
therefore should look only at the adaptive management plan to
determine whether the Bureau satisfied the requirements of
NEPA. This argument misunderstands the requirements of
NEPA. Nothing in that act or its implementing regulations
restricts a court’s review to only the primary mitigation effort in
a project rather than the project’s entire response. We will not
restrict our analysis to the adaptive management plan alone.

The Atlantic Rim Project’s Record of Decision and EIS
contemplate several mitigation techniques. As described above,
supra at 8, surface disturbance is limited to 7600 acres at any
time, and 13,600 acres over the life of the project. ROD at B-4.
Disturbance is also limited to certain areas to protect wildlife
and plant species. For example, to mitigate disturbance of the
greater sage grouse, surface disturbance or occupancy is
completely prohibited within one-quarter mile of occupied sage
grouse breeding grounds, and within two miles of those grounds
during the breeding season between March 1 and July 15. FEIS
at 3-96, E-7. Permanent high-profile structures are limited
within one mile of sage grouse breeding grounds. Id. at E-7.
Generator noise must be muffled in order to minimize
disturbance to mating calls. Id. See also NRDC, 525 F. Supp.
2d at 121–22 (outlining these and other measures protective of
sage grouse).

The project’s adaptive management plan endeavors to
monitor the development’s effects on the environment and
mitigate those effects as necessary. The plan outlines various
performance goals for the Bureau to strive for in collaboration
with other state and federal agencies. ROD at 19. For example,
the Bureau will attempt to “maintain functional migration
routes,” “provide an adequate amount of suitable, undisturbed
 28

crucial winter range for big game animals,” “provide well-
dispersed sage-grouse” habitats, “maintain adequate water
quality” for sensitive populations of fish, and “minimize deaths
and injuries of livestock due to development.” Id. The wildlife
monitoring and protection measures developed to fulfill these
goals are not fixed, but flexible. The Bureau may modify them
“as allowable and as deemed appropriate by BLM in
consultation with other agencies, [well] Operators and interested
parties.” ROD at B-15 (speaking specifically of wildlife
protection measures); see id. at E-1, E-3 (explaining that
mitigation measures will be evaluated annually or more
frequently, and the monitoring plan may be modified annually
as necessary).

The adaptive management plan relies on a review team that
includes representatives from the Bureau and other interested
parties. This team will develop specific quantifiable criteria to
evaluate the project’s adherence with the adaptive management
performance goals. ROD at 3. The plan specifies a short-term
disturbance goal for each well of no more than 6.5 acres and
less in areas with sensitive populations or crucial or unique
habitats. Id. at 12. The Record of Decision also discusses
adapting monitoring efforts in response to observed trends, and
outlines how funding will be obtained for said monitoring. Id.
at 20.

While the exact application of mitigation measures will be
determined on a site-specific basis, the adaptive management
plan also incorporates a detailed, thirteen-page list of specific
protective measures that the review team is to consider for each
drill plan. Id. at 21 (referencing FEIS App’x L). Those
measures include requiring operators to surround the areas
around drill pads with hay or mulch to reduce hillslope erosion,
FEIS at L-2, erecting signs near livestock pastures and corrals to
warn vehicle operators, id. at L-4, limiting short-term surface
 29

disturbance around sage grouse and Columbian sharp-tailed
grouse habitats and big game crucial winter range, id. at L-4,
and measures developed specifically for certain regions within
the Atlantic Rim Project Area, id. at L-6–L-13. The list also
provides reasons and explanations for all of the suggested
measures.

As this description shows, the Atlantic Rim Project’s EIS
and Record of Decision outlined relatively detailed mitigation
measures. In addition, these details were accompanied by
discussions of environmental studies supporting the Bureau’s
decisions. See, e.g., FEIS at 5-17–5-18 (citing external studies
about the protection required for sage grouse habitats, along
with the Bureau’s own data about the number of sage grouse
habitats in the Atlantic Rim Project Area and how many would
be affected by the proposed development). We agree with the
district court that “although the plaintiffs are dissatisfied with
the level of protection provided under the current mitigation
plan, the record clearly reflects that BLM analyzed and
considered various alternatives and put in place measures far
more stringent than those included in the original proposal.”
TRCP, 605 F. Supp. 2d at 275 (quoting NRDC, 525 F. Supp. 2d
at 122). By setting forth both fixed mitigation measures and an
adaptive management plan, the Record of Decision amply
fulfills NEPA’s mandate to discuss mitigation measures. We
can require no more. See Vermont Yankee, 435 U.S. at 525.

Nor did the adaptive management plan violate NEPA’s
requirement to take a hard look at environmental impacts before
actions are taken. See 40 C.F.R. § 1500.1(b). The procedural
requirements of NEPA do not force agencies to make detailed,
unchangeable mitigation plans for long-term development
projects. Through the adapative management plan, the Bureau
plans to monitor the real effects of the development it
authorizes, and adapt its mitigation measures to specific drilling
 30

proposals in response to trends observed. Allowing adaptable
mitigation measures is a responsible decision in light of the
inherent uncertainty of environmental impacts, not a violation of
NEPA. It is certainly not arbitrary or capricious.

Appellants also argue the district court abused its discretion
in excluding extra-record evidence regarding the adaptive
management plan. Some of the excluded evidence allegedly
supported Appellants’ argument that a similar adaptive
management plan in another project area was unworkable. As
we discussed above, supra at 25, a court generally restricts its
review to the administrative record. The district court did not
abuse its discretion in maintaining that default position for the
evidence in question. As with the wind project evidence, see
supra at 26, the proper time for Appellants to introduce this
evidence would have been in the notice and comment period
before the agency, not before the district court. The district
court did not abuse its discretion in excluding that evidence.

Appellants also sought to introduce a letter from the Bureau
that allegedly showed that the Bureau was not actually
implementing the Atlantic Rim adaptive management plan as
outlined in the Record of Decision. Appellants’ Br. at 55 (citing
Letter from R. Bennett to T. Wilmoth (May 13, 2008)). In a
subsequent mailing, however, the Bureau told Appellants that
the statement in question was a mistake and that the process had
already begun at the time of the first letter. The Bureau
provided Appellants documentation for this contention. Given
the Bureau’s convincing and unrebutted explanation for the
statement in its first letter, the district court did not abuse its
discretion in refusing to consider this evidence either.
 31

E. Multiple Use and Sustained Yield

As explained above, see supra at 5, FLPMA requires the
Bureau to “manage the public lands under principles of multiple
use and sustained yield.” 43 U.S.C. § 1732(a). Appellants
assert that the Atlantic Rim Project violated these mandates.
Even though the Record of Decision stated that the Bureau
factored in objectives other than maximizing natural gas
recovery, ROD at 10, Appellants insist that provisions in the
Atlantic Rim Project that envision some natural gas
development to the permanent detriment of other uses “do[] not
reflect FLPMA’s intent to balance resource uses on the public
lands.” Appellants’ Br. at 67.

But while the Bureau was to conform with the principles of
multiple use and sustained yield, the chosen development
alternative did not have to protect all current and possible uses.
As the Bureau’s decisions become more granular, the uses
maximized by each project necessarily become more limited.
Yet those decisions may still be part of the Bureau’s overall
management under the principles of multiple use and sustained
yield. That is, while the Great Divide RMP must reflect a wide
range of uses, the Atlantic Rim Project Area deals with a smaller
area of land and can optimize a narrower range of uses. Each
plan of development for the drilling of specific wells will
optimize still fewer uses in that plan’s limited acreage. As the
district court stated, “each individual project and parcel of land
need not, and cannot, reflect all FLPMA’s purposes.” TRCP,
605 F. Supp. 2d at 282. See also S. Utah Wilderness Alliance
Utah Chapter, Sierra Club, 122 IBLA 165, 172 (1992)
(“Multiple use is generally considered in the context of BLM’s
land-use planning [i.e., RMPs].”).

The Bureau has substantial discretion to decide how to
achieve the multiple use and sustained yield objectives. In
 32

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55
(2004), the Supreme Court considered the Bureau’s obligation
under FLPMA to maintain wilderness study areas — roadless
lands of at least 5000 acres that possess certain “wilderness
characteristics” — “in a manner so as not to impair the
suitability of such areas for preservation as wilderness.” Id. at
59 (quoting 43 U.S.C. § 1782(c)). The Court explained that the
Bureau has “a great deal of discretion in deciding how to
achieve” the goal of § 1782(c), even though the section “is
mandatory as to the object to be achieved.” 542 U.S. at 66. The
same applies to the goals listed in § 1732(a). Though the
Bureau must manage the Atlantic Rim Project Area under the
principles of multiple use and sustained yield, 43 U.S.C.
§ 1732(a), the Bureau has wide discretion to determine how
those principles should be applied. We are satisfied the Atlantic
Rim Project reflects those principles. The 2000 well alternative
the Bureau ultimately adopted is clearly a product of
compromise among competing goals, and encompasses less
drilling and more protection of other resources than the original
proposal. See generally ROD at 11–12 (comparing the proposal
with other alternatives, including the “preferred alternative” that
the Bureau adopted). FLPMA the Bureau fulfilled its mandate
under FLPMA.

F. Notice and Comment on the PODs

Appellants’ final argument is that the Bureau did not
adequately involve the public when it developed environmental
assessments (EAs) and approved plans of development (PODs)
for various applications to drill within the Atlantic Rim Project
Area. Under NEPA, agencies must permit the public to “play a
role in the decisionmaking process and the implementation of
that decision.” Methow Valley, 490 U.S. at 349. When a
decision requires only an EA, rather than an EIS, agencies must
still involve the public in the EA process “to the extent
 33

practicable,” 40 C.F.R. § 1501.4(b). Even when the agency
makes a finding of no significant impact, as the Bureau did for
the PODs in question, it must “[m]ake diligent efforts to involve
the public in preparing and implementing their NEPA
procedures,” 40 C.F.R. § 1506.6(a); id. § 1501.4(e)(1). We hold
that the Bureau adequately fulfilled these mandates in this case.

Between September 2005 and August 2006, the Bureau
posted notice of the Catalina and Sun Dog drilling permit
applications in the public reading room of the Bureau’s regional
office. See NRDC, 525 F. Supp. 2d at 120. In June and July
2007, the Bureau also posted on its website that it was preparing
environmental assessments (EAs) for those sites. See id.
However, none of the public notices supplied any specific
environmental information about those applications. Nor did the
Bureau ever release for public notice and comment any draft
EAs on the PODs. Instead, information about site-specific
environmental impacts was made public for the first time in June
2007 for the two Catalina PODs and August 2007 for the two
Sun Dog PODs — when the Bureau released the final EAs
simultaneously with the PODs’ approval. In other words, the
public was not informed about the environmental impacts of a
specific plan to drill until the POD was already approved.

Yet the Bureau need not include the public in the
preparation of every EA. In TOMAC, Taxpayers of Michigan
Against Casinos v. Norton, 433 F.3d 852 (D.C. Cir. 2006), we
opined that “the agency has significant discretion in determining
when public comment is required with respect to EAs.” Id. at
861. Appellants argue that the Bureau abused this discretion
because the Atlantic Rim Project EIS postponed site-specific
environmental analysis until the POD approval process. They
contend that by averting public comment at the EIS stage, then
inhibiting public comment at the EA stage, the Bureau failed to
 34

make “diligent efforts to involve the public.” 40 C.F.R.
§ 1506.6(a). Appellants point out that the Bureau has posted
draft EAs for public comment in the past. But the fact that the
Bureau has provided draft EAs for public comment in some
instances does not compel them to do so in every instance.
When an agency prepares an EA accompanied by a finding of no
significant impact, it must make the finding available for public
review and comment only if the action would normally require
the preparation of an EIS, or if “[t]he nature of the action is one
without precedent.” 40 C.F.R. § 1501.4(e)(2)(i)–(ii). See also
43 C.F.R. § 46.305(b) (“Publication of a ‘draft’ environmental
assessment is not required.”). Appellants never argued that
either of those conditions is present in this case.

In addition, the fact that the Bureau did not publish draft
EAs did not foreclose Appellants’ opportunity to comment on
the projects. When the district court denied preliminary
injunctive relief to NRDC, the court highlighted the length of
time between the Bureau’s publication of notice of the
applications (September 2005 and August 2006) and its release
of the EAs and approval of the PODs (June and August 2007).
Accordingly, the court found that Appellants “clearly had a
substantial opportunity to comment on the proposals before they
were approved.” NRDC, 525 F. Supp. 2d at 120–21. They did
not need to await the publication of a draft EA. The Appellants
could have asked individually for the draft EAs when the Bureau
posted the public notice, but they have pointed to no evidence
that they did so. When the BLM posted public notices of later
applications to drill, the Appellants did make requests to the
BLM and the BLM did provide them with draft EAs. Indeed,
Appellants commented on later draft EAs in the Sun Dog unit,
and the Bureau responded to those comments in its subsequent
EA. The Bureau gave public notice that it was considering the
applications to drill and was preparing draft EAs, and did not
foreclose public input or refuse to provide draft EAs upon
 35

request even though it did not publish draft EAs for specific
public comment. Cf. Am. Bird Conservancy, Inc. v. FCC, 516
F.3d 1027, 1035 (D.C. Cir. 2008) (noting that the environmental
petitioner “stated that [it] would address their NEPA notice
claim” if the FCC would “update its website when it receives
individual tower applications”). In sum, the Bureau acted within
its discretion to afford public participation in EA drafting. It did
not violate NEPA’s prescription to include the public “to the
extent practicable.” 40 C.F.R. § 1501.4(b).

III. Conclusion

Though Appellants raise claims of both procedural and
substantive inadequacies in the Bureau’s decisions concerning
the Atlantic Rim Project, they have failed to show that any of
those decisions were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). Nor did the district court abuse its discretion when
it excluded extra-record evidence from its evaluation.
Accordingly, the district court’s decision is

Affirmed.