New Mexico Ex Rel. Richardson v. Bureau of Land Management

FILED
United States Court of Appeals
Tenth Circuit

April 28, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF NEW MEXICO ex rel. BILL
RICHARDSON, Governor, GARY KING,
Attorney General, * NEW MEXICO
ENERGY, MINERALS AND NATURAL
RESOURCES DEPARTMENT, NEW
MEXICO DEPARTMENT OF GAME AND
FISH, NEW MEXICO ENVIRONMENT
DEPARTMENT, and KATHERINE SLICK,
New Mexico State Historic Preservation
Officer; NEW MEXICO WILDERNESS
ALLIANCE; WILDERNESS SOCIETY;
SIERRA CLUB; NATURAL RESOURCES
DEFENSE COUNCIL; NATIONAL
WILDLIFE FEDERATION; SOUTHWEST
ENVIRONMENTAL CENTER; FOREST
GUARDIANS; NEW MEXICO WILDLIFE
FEDERATION, Nos. 06-2352, 06-2353, 06-2354

Plaintiffs–Appellees–Cross-
Appellants,

v.

BUREAU OF LAND MANAGEMENT;
MIKE POOL, Director, Bureau of Land
Management; LINDA RUNDELL, New
Mexico State Director, Bureau of Land
Management; BENJAMIN N. TUGGLE, in
his official capacity as the Regional
Director, Region 2, U.S. Fish and Wildlife
Service; ROWAN W. GOULD, in his
official capacity as the Director of the U.S.
Fish and Wildlife Service; UNITED
STATES FISH AND WILDLIFE SERVICE;
 KEN SALAZAR, in his official capacity as
Secretary of the Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR, **

Defendants–Cross-Appellees,

and

INDEPENDENT PETROLEUM
ASSOCIATION OF NEW MEXICO,

Intervenor-Defendant–Appellant–
Cross-Appellee.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CV-05-460 BB/RHS)

Ronald Walter Opsahl (William Perry Pendley with him on the briefs), Mountain
States Legal Foundation, Lakewood, Colorado, for the Intervenor-Defendant–
Appellant–Cross-Appellee.

Alletta Belin, Belin & Sugarman, Santa Fe, New Mexico (Stephen F. Farris and
Judith Ann Moore, Office of the Attorney General, State of New Mexico with
them on the briefs) and James Angell (Andrea L. Zaccardi with him on the
briefs), Earthjustice, Denver, Colorado for Plaintiffs–Appellees–Cross-Appellants
State of New Mexico, et al.

Elizabeth Peterson (Arthur Arguedas, Office of the Solicitor, U.S. Department of
the Interior and Ronald J. Tenpas, Assistant Attorney General, Andrew A. Smith,

*
Pursuant to Fed. R. App. P. 43(c)(2), Gary King is substituted for
Patricia A. Madrid.
**
Pursuant to Fed. R. App. P. 43(c)(2), Mike Pool is substituted for
Kathleen Clarke, Benjamin N. Tuggle is substituted for H. Dale Hall, Rowan W.
Gould is substituted for Steven A. Williams, and Ken Salazar is substituted for
Gale Norton.
Aaron P. Avila, and Andrew C. Mergen with her on the briefs), U.S. Department
of Justice, Environment & Natural Resources Division, Washington, D.C., for
Defendants–Cross-Appellees Bureau of Land Management, et al.

Before LUCERO, ANDERSON, and O’BRIEN, Circuit Judges.

LUCERO, Circuit Judge.

This litigation concerns the environmental fate of New Mexico’s Otero

Mesa, the largest publicly-owned expanse of undisturbed Chihuahuan Desert

grassland in the United States. From 1998 to 2004, the Bureau of Land

Management (“BLM” or “the Agency”) conducted a large-scale land management

planning process for federal fluid minerals development in Sierra and Otero

Counties, where the Mesa is located. Ultimately, the Agency opened the majority

of the Mesa to development, subject to a stipulation that only 5% of the surface of

the Mesa could be in use at any one time. Invoking the National Environmental

Policy Act (“NEPA”), the Federal Land Management Policy Act (“FLPMA”), and

the National Historic Preservation Act (“NHPA”), the State of New Mexico and a

coalition of environmental organizations led by the New Mexico Wilderness

Association (“NMWA”) challenged in federal district court the procedures by

which BLM reached this determination. NMWA also challenged BLM’s decision

not to consult with the Fish and Wildlife Service (“FWS”) under the Endangered

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Species Act (“ESA”) regarding possible impacts of the planned development on

the Northern Aplomado Falcon.

The district court rejected these challenges, save for the plaintiffs’

argument that BLM erred in beginning the leasing process on the Mesa before

conducting additional analysis of site-specific environmental impacts flowing

from the issuance of development leases. Discerning serious flaws in BLM’s

procedures, we affirm the district court’s conclusion that NEPA requires BLM to

conduct site-specific analysis before the leasing stage but reverse its

determination that BLM’s plan-level analysis complied with NEPA. Moreover,

we affirm its conclusion that BLM complied with public comment provisions in

FLPMA, and we vacate as moot the portion of the district court’s order

addressing NMWA’s ESA claims.

I

Within Sierra and Otero counties in southern New Mexico lie the northern

reaches of the richly biodiverse Chihuahuan Desert. Among the several habitats

comprising this desert ecosystem is the Chihuahuan Desert grassland, much of

which has depleted to scrubland over the past century and a half. A New Mexico

State University biology professor identifies this grassland as the most

endangered ecosystem type in the United States. The Otero Mesa, which BLM

seeks to open to oil and gas development upon conclusion of the planning process

that is the subject of this litigation, is home to the endangered Northern

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Aplomado Falcon, along with a host of other threatened, endangered, and rare

species. Only a few, unpaved roads traverse the Mesa. Lying beneath it is the

Salt Basin Aquifer, which contains an estimated 15 million acre-feet of untapped

potable water. Recognizing the importance of this valuable resource, the state of

New Mexico and many citizens and environmental groups have sought to prevent

development.

A

BLM manages some 1.8 million acres of surface land and 5 million acres of

subsurface oil, gas, and geothermal resources in Sierra and Otero Counties. This

includes the 427,275-acre Otero Mesa. Until recently, these resources were

managed under the terms of a 1986 resource management plan (the “RMP”), see

43 C.F.R. § 1601.0-5(n), which contained no overall guidance on the management

of fluid minerals development, leaving management decisions to be made on a

case-by-case basis. 1 Because the area saw relatively little oil and gas exploration,

BLM relied on the plan without incident for a decade and issued few development

leases during this time.

1
BLM’s organic act, FLPMA, requires BLM to manage fluid resource
development on federal lands using a three-step process. First, BLM develops an
area-wide resource management plan, specifying what areas will be open to
development and the conditions placed on such development. 43 U.S.C.
§ 1712(a). Second, BLM may grant leases for the development of specific sites
within an area, subject to the requirements of the plan. § 1712(e); see also 43
C.F.R. § 1610.5-3. Finally, after exploring the leased lands, a lessee may file an
application for permit to drill (“APD”), which requires BLM review and approval.
43 C.F.R. § 3162.3-1(c).

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 This state of affairs was upended in 1997, when a Harvey E. Yates

Company (“HEYCO”) exploratory well struck natural gas on the Otero Mesa.

The strike occurred on a parcel designated the Bennett Ranch Unit (“BRU”). Oil

and gas companies quickly responded by nominating over 250,000 acres in the

area for federal leases. See § 3120-3.1. BLM determined that under the terms of

then-existing internal policy, the increased development interest required the

Agency to issue a management plan specifically governing fluid mineral

resources. See BLM Handbook H-1624-1 (1990); BLM Manual §§ 1620.06(A),

1620.2 (1986). Accordingly, BLM asked existing leaseholders to voluntarily

suspend their leases and began the process of amending the RMP to address

possible oil, gas, and geothermal development. 2 See Notice of Intent to Prepare

a Resource Management Plan Amendment and Environmental Impact Statement,

63 Fed. Reg. 55404 (Oct. 15, 1998). The stated goals of the amendment process

were to determine which public lands in Sierra and Otero Counties should be

available for leasing and development and to direct how leased lands would be

managed. Id. at 55405.

Amending a resource management plan is a “major federal action” whose

potential environmental impacts must be assessed under NEPA. 42 U.S.C.

2
Not all existing leaseholders chose to suspend their leases. Since the
amendment process began, HEYCO has submitted and BLM has approved six
APDs. One of these permits has allowed HEYCO to commence drilling at the
location of its initial gas strike.

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§ 4332(C); see also Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125,

1131 (10th Cir. 2006). Consequently, in October 2000, BLM issued a “Draft

Resource Management Plan Amendment and Environmental Impact Statement

for Federal Fluid Minerals Leasing and Development in Sierra and Otero

Counties” (the “Draft EIS”). As NEPA requires, the Draft EIS analyzed several

possible alternative management schemes for oil and gas development in the

area. See 42 U.S.C. § 4332(C)(iii); 40 C.F.R. § 1502.14. Of the five alternatives

identified, three were fully analyzed in the Draft EIS. The other two were

eliminated without further analysis.

Both eliminated alternatives would have increased the level of

environmental protection for the entire plan area beyond the level provided under

existing management or any of the fully analyzed alternatives. One would have

done so through a blanket ban on minerals development leasing; the other,

through a “no surface occupancy” (“NSO”) stipulation allowing minerals

development only by slant drilling from non-BLM lands. These alternatives

were “considered initially but eliminated prior to further analysis” based on the

conclusion that adopting a plan which so limited development would be arbitrary

and capricious under FLPMA’s multiple-use mandate. 3 See 43 U.S.C. § 1702(c).

3
“‘Multiple use management’ is a deceptively simple term that describes
the enormously complicated task of striking a balance among the many competing
uses to which land can be put, ‘including, but not limited to, recreation, range,
timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic,
(continued...)

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BLM also discounted one of the three alternatives analyzed in the Draft EIS: the

“No-Action Alternative,” or the option of taking no new planning action. After

fully analyzing its likely impacts, BLM determined that the No-Action

Alternative was not in compliance with its own policies.

Thus, BLM was left with two possible management schemes, “Alternative

A” and “Alternative B.” Of the two, Alternative A placed fewer restrictions on

development, and BLM selected it as the preferred alternative. See 40 C.F.R.

§ 1502.14(e). Alternative A opened 96.9% of the plan area but placed

limitations on possible development, subjecting 58.9% of the area to a

combination of NSO stipulations, controlled surface use stipulations, and timing

stipulations. Of particular relevance to this litigation, Alternative A subjected

116,206 acres of the Otera Mesa and 16,256 acres of the adjoining Nutt Desert

Grasslands to an NSO provision allowing surface disturbance only within 492

feet of existing roads. BLM crafted this NSO restriction “[t]o protect portions of

the remaining desert grassland community by minimizing habitat

fragmentation.” 4

3
(...continued)
scientific and historical values.’” Norton v. S. Utah Wilderness Alliance, 542
U.S. 55, 58 (2004) (quoting 43 U.S.C. § 1702(c)).
4
As explained in the Draft EIS:

Habitat fragmentation is the division of an extensive habitat into
smaller habitat patches. Generally, the effects of habitat
(continued...)

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 Also relevant to this litigation, the Draft EIS analyzed the potential impact

on groundwater in the plan area only in general terms, without identifying or

discussing specific aquifers such as the Salt Basin Aquifer. The Draft EIS

concluded that in the construction phase of development:

The possibility for degradation of fresh water aquifers could result if
leaks or spills occur from pits used for the storage of drilling fluids,
or if cathodic protection wells associated with pipelines are installed
in a manner that allows for the commingling of shallow surface
aquifers. However, since impacts would occur only if the governing
regulations fail to protect the resource, the impact is not quantifiable.

As for the production phase, the Draft EIS was equally cursory. It stated that

“[p]roduction of an oil and gas well typically would not have a direct impact on

groundwater resources” because regulations require that “[a]ll oil and gas wells

must have a casing and cement program . . . to prevent the migration of oil, gas,

or water . . . that may result in degradation of groundwater.” Id.; see 43 C.F.R.

§ 3162.5-2(d). Finally, the Draft EIS concluded that disposal wells, which are

4
(...continued)
fragmentation include: (1) the reduction of the total amount of a
habitat type and apportioning the remaining habitat into smaller,
more isolated patches . . ., (2) the creation of disturbed land which
provides habitat for new, often exotic or weedy species . . ., and (3)
the increase in the amount of edge to remaining communities. This
increases predation and modifies plant composition even within the
undisturbed area . . . .

....

. . . As the plant communities change, the wildlife composition of the
area also shifts. . . . Loss may occur of area-sensitive species.

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“used for the disposal of waste [by injection] into a subsurface stratum,” 40

C.F.R. § 146.3, would not lead to significant impacts because applicable casing

and cement construction requirements and aquifer criteria would be followed and

would prevent contamination. § 146.22 (listing construction requirements for

Class II wells, including casing and cementing); see generally § 144

(“Underground Injection Control Program”).

After releasing the Draft EIS, BLM accepted public comments for a 195-

day period and held six public meetings to discuss it. See Notice of Availability

and Public Hearings, 65 Fed. Reg. 69329 (Nov. 16, 2000); see also 40 C.F.R.

§ 1506.6(b) & (c) (requiring agencies to provide public notice of the availability

of environmental documents and hold public meetings “whenever appropriate”).

Nearly 300 oral and written comments were received, and BLM recognized that a

majority of these addressed the need to protect the Otero Mesa grassland. 5

Numerous public comments expressed concern that the NSO stipulation, which

exempted areas within 492 feet of existing roads, was insufficient to prevent

fragmentation of the Otero Mesa grassland habitat. A Vice President of HEYCO

commented that the resources underlying Otero Mesa would not likely be

accessible via directional drilling, and thus, “Alternative A has the effect of

closing 160,000+ acres to fluid mineral development.” In response to all of these

5
In addition, BLM’s Las Cruces Field Office received over 350 written
comments regarding the Draft EIS and approximately 3,200 comments via email.

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comments, BLM announced that it would reevaluate Alternative A in the Final

EIS.

B

Among the species for which the Chihuahuan Desert grasslands provide

habitat is the Northern Aplomado Falcon (“Aplomado Falcon” or “Falcon”),

listed as an endangered species since 1986. See Determination of the Northern

Aplomado Falcon to Be an Endangered Species, 51 Fed. Reg. 6686, 6686-88

(Feb. 25, 1986). Although Falcons have only “sporadically” been seen in the

United States in recent decades, the presence of breeding Falcons just across the

border in Mexico led biologists to believe that the Falcon might be poised to

repopulate portions of the plan area. Repopulation by the Falcon would depend

on the preservation of suitable grassland habitat.

In June 2003, during the ongoing resource management plan amendment

process, BLM concluded that revisions to the management plan were “likely to

adversely affect” the Falcon. Accordingly, it requested in writing that FWS

begin formal consultation, pursuant to § 7 of the ESA, regarding whether BLM’s

proposed action might jeopardize the Falcon’s continued existence. 16 U.S.C.

§ 1536; see also 50 C.F.R. § 402.14 (detailing formal consultation requirements).

Three months later, the Agency reversed course, retracted its determination that

the RMP revisions were “likely to adversely affect” the Falcon, and informed

FWS of its conclusion that formal consultation was therefore unnecessary. FWS

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concurred in this revised determination, thus ending the formal consultation

process and the agencies’ study of likely effects on the Falcon.

C

Three years after issuing the Draft EIS, in December 2003, BLM issued a

Proposed Resource Management Plan Amendment (“RMPA”) and Final EIS.

Rather than selecting from among the alternatives analyzed in the Draft EIS,

however, the abstract of the Final EIS explained that BLM had selected “a

modified version (as a result of public input) of preferred Alternative A

described and analyzed in the Draft RMPA/EIS.”

This “modified version” of Alternative A (“Alternative A-modified”)

differed in a crucial respect from Alternative A: Rather than limiting surface

disturbances to areas within 492 feet of existing roadways, Alternative A-

modified would instead limit disturbances to any 5% of the surface area of a

leased parcel at a given time, regardless of location. 6 In addition to the 5%

disturbance cap, Alternative A-modified required “unitization,” a management

scheme under which different operators cooperate in exploration and well

development with the goal of minimizing surface impacts. “Unitization” was a

6
Alternative A-modified also removed controlled surface use and timing
limitations on more than 600,000 acres of the plan area. This left 69% of the total
plan area unrestricted—nearly twice the area Alternative A left unrestricted.

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new creation, never previously used by BLM in managing surface resources. 7

Although the sections of the Final EIS describing the management plan itself

were modified to reflect these new requirements, the sections describing the

plan’s impacts on vegetation and wildlife were not substantially modified,

because the EIS concluded that the changes “do not significantly alter . . . the

analysis of the environmental consequences.” 8

Alternative A-modified did offer greater protection of the Otero and Nutt

grasslands in one respect: It prohibited development on 35,790 acres of “core

habitat” for five years pending further study and development of an adaptive

management strategy. Thus, BLM presented the new alternative as responsive to

the concerns of both industry and the environmental community. The Agency

reiterated in response to public questions that it was unnecessary to analyze the

impacts of A-modified because the overall “impact assessment,” judged based on

the “anticipated level of surface disturbance,” “remained essentially the same” as

under Alternative A. Based on this conclusion that the same or less surface

7
As the New Mexico Energy, Minerals and Natural Resources Department
indicated in a protest letter filed with BLM after final adoption of Alternative A-
modified, the 5% and unitization requirements left open considerable questions
about their implementation and thus, likely impacts. For example, the Final EIS
does not explain how the 5% cap will be calculated: as a total percentage of the
Plan area, as a percentage of each leased parcel, or by some other method. Other
protesters registered similar concerns.
8
The impacts analysis in the Final EIS does include some added portions,
but these do not address differences in impacts created by adoption of the new 5%
and unitization requirements—the salient change for purposes of this litigation.

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acreage would be disturbed under Alternative A-modified, BLM reasoned, there

was no substantial change from an environmental standpoint. Regarding

groundwater concerns, the Final EIS added a discussion of the effects of leasing

on specific basins, including the Salt Basin Aquifer, but again concluded that

“the impacts on groundwater resources are expected to be minimal,” adding that

“[t]ypically, natural gas wells make little water and the water produced can be

disposed through the use of evaporation ponds.”

D

In response to these changes, three New Mexico state agencies, a group of

environmental organizations, and more than twenty-five members of the public

filed formal protests with BLM. See 43 C.F.R. § 1610.5-2 (“Any person who

participated in the planning process and has an interest which is or may be

adversely affected by the . . . amendment of a resource management plan may

protest such . . . amendment.”). Of those protests reflected in the record, nearly

all expressed concern regarding the changes to the Otero and Nutt grassland NSO

stipulation. The New Mexico Energy, Mineral and Natural Resources

Department, Earthjustice, and several citizens also objected to the level of

assessment of likely impacts on groundwater. All protests were reviewed by

BLM and ultimately dismissed.

Not long after these protests were filed, New Mexico Governor Bill

Richardson released a review of the consistency of the Final EIS with state law.

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See 43 C.F.R. § 1610.3-2(e) (giving governors of affected states 60 days in

which to “identify inconsistencies and provide recommendations in writing” to

the BLM State Director); Governor Bill Richardson’s Consistency Review of and

Recommended Changes to the U.S. Dep’t of the Interior, Bureau of Land

Mgmt.’s Proposed Resource Mgmt. Plan Amend. and Final Envtl. Impact

Statement for Fed. Fluid Minerals Leasing and Dev. in Sierra and Otero

Counties, March 5, 2004, available at http://www.emnrd.state.nm.us/MAIN/

Administration/News/GovsPlanforOteroMesa.pdf [hereinafter “Consistency

Review”]. Governor Richardson concluded that the proposed management of the

Otero Mesa was inconsistent with “numerous . . . state laws, rules, policies,

programs, and plans, particularly those that relate to protecting the Chihuahuan

Desert and New Mexico’s ground water.” The Governor accordingly proposed

an alternate management plan. His plan closed roughly the same areas to leasing

and imposed roughly the same NSO, controlled surface use, and timing

stipulations as those proposed in Alternative B, along with some increases in

protection compared to that alternative. Most important to this appeal, the

Governor proposed NSO stipulations that, unlike those proposed in Alternative

B, would cover large portions of the Otero Mesa and Nutt grasslands. The

governor also proposed the imposition throughout the entire plan area of various

surface use limitations not considered by BLM.

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 BLM declined to adopt the majority of the Governor’s suggested

modifications to the Final EIS and concluded that the EIS was consistent with

“officially approved and adopted resource-related [state] policies and programs.”

However, the Agency did accept one major alteration proposed by the Governor,

making the closure of 35,790 acres of core habitat on the Otero Mesa and Nutt

grasslands permanent rather than temporary. The Agency announced this

modification in a 23-page “supplement” to the Final EIS (the “SEIS”), issued on

May 19, 2004. In response to the public outcry over the adoption of Alternative

A-modified in the Final EIS, the SEIS provided a summary of changes between

the Draft and Final EIS and some explanation of the reasons for the switch to

Alternative A-modified. First, a segment addressing the Otero Mesa and Nutt

grasslands explained that public comments led BLM to conclude that directional

drilling—as required to access resources beneath the Mesa under either

Alternative A or B—would not be feasible in the area, and accordingly, “there

was a need to reevaluate the No Surface Occupancy stipulation, and consider a

different approach that would similarly meet the resource objectives.” Moreover,

“BLM analysis indicates the grassland areas could be adequately protected

utilizing a 5 percent maximum surface disturbance stipulation.” Second, a

subsection entitled “Further Analysis of Existing Data” concluded that because

BLM predicted that the “reasonable foreseeable development” acreage would be

1,600 acres under any management scheme, the impacts of Alternatives A and A-

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modified on habitat would not appreciably differ. Notably, BLM based its

prediction of likely development solely on the exploration history and current

lease status of lands in the plan area, without accounting for the management

scheme in effect. Because BLM anticipated the same habitat impacts under

either alternative, the SEIS concluded that the adoption of A-modified was

within “the scope and analysis of the Draft RMPA/EIS and d[id] not significantly

alter the alternatives or analysis of the environmental consequences.”

The SEIS did include a chart comparing the potential environmental

impacts of Alternative B, Alternative A-modified, and the No-Action

Alternative. However, the chart did not estimate likely surface impacts under the

5% and unitization requirements. Thus, the SEIS included no new environmental

impacts analysis beyond that in the Final EIS—which itself simply adopted the

analysis of the Draft EIS on relevant points. BLM published a notice of

availability of the SEIS in the federal register and held a 30-day public comment

period. Notice of Change to Proposed Resource Management Plan Amendment;

Notice of Public Comment Period, 69 Fed. Reg. 30718 (May 28, 2004).

Governor Richardson appealed the rejection of the majority of his

proposed modifications to BLM’s National Director (“Director”). See 43 C.F.R.

§ 1610.3-2(e). In addition, several environmental groups sent a joint letter to the

Director requesting that BLM allow public review and comment on the

Governor’s recommendations. See id. The Director declined to do so and issued

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a decision rejecting the Governor’s appeal. Notice of BLM Director’s Response

to an Appeal From the Governor of New Mexico, 70 Fed. Reg. 3550 (Jan. 25,

2005). In the Record of Decision issued in January 2005 upon final adoption of

the RMPA, BLM explained that there was no need for a separate comment period

given the similarity between the Governor’s proposal and Alternative B.

E

In April 2005, the State of New Mexico filed suit against BLM, 9 raising

claims under NEPA, FLPMA, the NHPA, and the Administrative Procedure Act

(“APA”), seeking declaratory and injunctive relief (the “New Mexico suit”). On

May 20, BLM scheduled for July 20 a competitive oil and gas lease auction

covering a 1600-acre parcel within the Bennett Ranch Unit (the “BRU Parcel”),

adjacent to the parcel on which HEYCO found natural gas triggering the cascade

of lease nominations that led to the RMPA process. Six days later, a coalition of

9
Plaintiffs included the State of New Mexico and its Governor; Attorney
General; Historic Preservation Officer; Energy, Minerals and Natural Resources
Department; Department of Game and Fish; and Environmental Department
(collectively “the State” or “New Mexico”). Named as defendants were BLM, its
Director, and the New Mexico State Director (collectively “BLM”).

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environmental groups filed a second suit (the “NMWA suit”). 10 As amended,

this suit raised claims under NEPA, the ESA and FLPMA.

BLM went ahead with the July 20 auction, and HEYCO, the sole bidder,

purchased the lease. During the course of litigation, however, BLM agreed not

to execute the lease until resolution of the case. 11 HEYCO has continued to

prepare for the possibility of drilling, obtaining permits to build a pipeline to

service wells on this lease and others it holds nearby.

The NMWA suit was later consolidated with New Mexico’s suit. Before

the two matters were consolidated, however, the Independent Petroleum

Association of New Mexico (“IPANM”), an organization promoting the interests

of independent oil and gas producers in the state, moved to intervene in the New

Mexico suit. After consolidation, IPANM moved to intervene in the NMWA suit

10
The NMWA suit also named FWS, its regional and national directors, and
the Department and Secretary of the Interior as defendants. Only the ESA claim
implicates actions of the FWS defendants. Plaintiff organizations were NMWA,
the Wilderness Society, the Sierra Club, the Natural Resources Defense Council,
the National Wildlife Federation, the Southwest Environmental Center, Forest
Guardians, and the New Mexico Wildlife Federation.
11
The parties stipulated before the district court that they would avoid
seeking preliminary injunctive relief. As part of this stipulation, BLM agreed not
to execute the July 20 lease “until this case has been resolved or February 15,
2006, whichever is earlier.” When proceedings before the district court had not
terminated by that date, BLM filed a “notice of continued deferral of lease for
Bennett Ranch Unit parcel,” seeking to avoid preliminary injunction proceedings
and indicating that BLM would give notice before executing the lease. Because
no such notice has been filed in the district court or this court, we assume
execution continues to be deferred.

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as well. Both motions were unopposed. On August 8, 2005, the district court

granted the motion to intervene in the State’s suit. Although the court later

denied as moot IPANM’s intervention in the NMWA suit, we now grant its

request to intervene in that case from this point forward. 12

After oral argument and an evidentiary hearing regarding Aplomado

Falcon sightings in the plan area, the district court issued a September 27, 2006,

opinion rejecting the plaintiffs’ NEPA, ESA, FLPMA, and NHPA challenges to

the RMPA process. However, the court also held that BLM violated NEPA when

it failed to conduct a site-specific environmental analysis of the likely impacts of

leasing the BRU Parcel and ordered BLM to prepare such an analysis. IPANM

now appeals the district court’s determination regarding the necessity of site-

specific analysis. The State and NMWA cross-appeal all other matters save the

12
The district court explained that “[s]ince the two cases are consolidated,
and IPANM had been allowed to intervene in [the State’s suit], it is not necessary
that IPANM seek to intervene in the consolidated cases.” IPANM now contests
this denial based on the well-established rule that consolidation is but a
procedural tool and does not merge two cases such that parties to one case
become parties to the other. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97
(1933); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1368 (10th Cir.
1982). For the same reasons that IPANM qualified for mandatory intervention in
the New Mexico suit, it also qualifies for mandatory intervention in the NMWA
suit. See Fed. R. Civ. P. 24(a) (providing for mandatory intervention by a party
with an interest in the litigation, whose ability to protect that interest will be
impaired by disposal of the suit, and whose interests are not adequately
represented by an existing party). We “generally follow[] a liberal view in
allowing intervention under Rule 24(a).” Elliott Indus. Ltd. P’ship v. BP Am.
Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2005). Although IPANM did not
explicitly move to intervene, we construe its brief requesting intervention as such
a motion.

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NHPA claim.

F

Since the issuance of the district court’s opinion, the regulatory status of

the Northern Aplomado Falcon has changed in a manner that affects this

litigation. At the time of BLM’s decisions to adopt the RMPA and to issue the

July 20 lease, the Falcon was listed as an endangered species. Accordingly, in

the district court, NMWA challenged BLM’s ESA consultation process regarding

effects of the RMPA on the Falcon. After the district court entered its order

below, rejecting NMWA’s argument on the merits, FWS reclassified the Falcon

population in the area. In summer 2006, FWS issued a formal ruling in which it

decided to reintroduce the Falcons into New Mexico and Arizona. See

Establishment of a Nonessential Experimental Population of Northern Aplomado

Falcons in New Mexico and Arizona, 71 Fed. Reg. 42298 (July 26, 2006). We

must address whether these changes affect the liveness of NMWA’s ESA

challenge.

II

- 21 -
 We begin, as we must, by considering jurisdictional issues. 13 Because no

other statute confers jurisdiction, our jurisdiction must flow from 28 U.S.C.

13
At the outset, we must ensure that the parties have standing to bring their
claims. Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150, 1155 (10th Cir. 2006).
An environmental organization has standing if “its members would otherwise
have standing to sue in their own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000). The plaintiff
organizations attached to their opening brief in the district court several
declarations in which members of NMWA, the Wilderness Society, Forest
Guardians, and the Southwest Environmental Center assert plans to use the Otero
Mesa in the future for specified aesthetic, recreational, and employment pursuits
that would be harmed by development. These declarations are plainly sufficient
to support individual standing under Summers v. Earth Island Institute, 129 S. Ct.
1142, 1149-51 (2009), and Laidlaw, 528 U.S. at 183-84. Each declaration
describes the purpose of the organization as environmental conservation, and the
interests at stake herein are “germane” to that purpose. See Laidlaw, 528 U.S. at
181. Further, because only declaratory and injunctive relief against BLM are
sought, individual members need not be present for a court to afford relief. See
Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1241 (10th Cir. 2004).
Accordingly, these four organizations have standing to pursue this appeal.
Because no member of the remaining organizations submitted a declaration
describing a sufficient individual injury, they lack standing.
In determining that New Mexico has standing because of the threat of
environmental damage to lands within its boundaries, we consider that states have
special solicitude to raise injuries to their quasi-sovereign interest in lands within
their borders. Massachusetts v. EPA, 549 U.S. 497, 519-20 (2007). Here, New
Mexico alleges harm to its lands as well as a financial burden through the costs of
lost resources such as water from the Salt Basin Aquifer. Id. at 522-23 (holding
that a state has standing to sue for relief from pending environmental harm so
long as the harm is sufficiently concrete); id. at 518-19 (recognizing that states
may have concrete environmental interests even in lands they do not own (citing
Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)). New Mexico has thus
alleged an imminent injury that was caused by the RMPA and would be redressed
by an injunction.

- 22 -
§ 1291, which allows appeal from all “final decisions” of the district courts.

BLM argues that the district court’s order was not a final decision, but rather, an

unreviewable remand under the administrative remand doctrine. In addition,

BLM and IPANM argue that the plaintiffs’ ESA claim is moot. 14

A

“[A] decision is ordinarily considered final and appealable under § 1291

only if it ends the litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712

(1996) (quotation omitted). The finality requirement is designed to avoid the

waste and confusion engendered by piecemeal review of cases. See Bender v.

Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). “[R]emand by a district court to an

administrative agency for further proceedings is ordinarily not appealable

because it is not a final decision.” Trout Unlimited v. U.S. Dep’t of Agric., 441

F.3d 1214, 1219 (10th Cir. 2006) (quoting Bender, 744 F.2d at 1426-27).

In this case, the district court determined that BLM failed to conduct

sufficient site-specific environmental analysis before auctioning leases for lands

within the plan area and instructed the Agency to conduct further assessment if it

14
Before the district court, New Mexico raised an NHPA claim challenging
the adequacy of BLM’s consultation with Native American tribes. On appeal,
IPANM urges this court to determine that the State lacked standing to raise this
claim. Because the district court ruled in favor of BLM and New Mexico did not
appeal that determination, the NHPA issue is not before us, and we need not
determine whether New Mexico had standing to raise it.

- 23 -
wished to execute the lease in the Bennett Ranch Unit. All other challenges

raised by the plaintiffs were resolved in BLM’s favor. On its face, this order has

all requisite components of a final order: It resolved all issues and granted the

plaintiffs relief, enjoining issuance of the HEYCO lease until such analysis is

complete. As the State points out, BLM is not bound to conduct a new EIS in

response to the court’s order; it could opt to refrain from granting any leases and

thus obviate the need for an EIS. Even assuming that BLM completes a site-

specific EIS, any challenge thereto must be brought in a new lawsuit.

BLM argues, however, that despite the appearance of finality, the court’s

order amounts to a “remand” to BLM and is thus non-final under administrative

law principles. See, e.g., Bender, 744 F.2d at 1426-27. In effect, BLM argues

that whenever a court order requires further action by an agency, the order

constitutes a “remand,” and we cannot review the matter until the agency acts

and the parties return to court.

This argument fundamentally misunderstands the nature of a “remand” in

an administrative case. Typically, a “remand” from a district court to an agency

occurs when an agency has acted in an adjudicative capacity: A party to the

adjudication appeals the agency’s determination to a district court, and the

district court instructs the agency to conduct further proceedings. Accordingly,

when considering whether a remand has occurred in a given case, appellate

- 24 -
courts must consider the nature of the agency action as well as the nature of the

district court’s order:

[J]udicial review of administrative action comes in many forms. The
administrative action may be essentially adjudicatory, essentially
legislative, or some nonadversarial action such as grant of a license.
The issue of finality is affected by the nature of the administrative
proceeding and the framework of judicial review as well as the
character of the remand order.

15B Charles Alan Wright et al., Federal Practice & Procedure: Jurisdiction and

Related Matters § 3914.32, at 237 (2d ed. 1992); see also Caesar v. West, 195

F.3d 1373, 1374 (Fed. Cir. 1999) (“Remands to administrative agencies, because

they mark a continuation of the case, are not generally considered final decisions

for jurisdictional purposes.” (emphasis added)); Horizons Int’l, Inc. v. Baldrige,

811 F.2d 154, 158-59 (3d. Cir. 1987) (“The governing statute may authorize

judicial review of agency action that is essentially adjudicatory[,] . . . of

legislative rulemaking which is neither adjudicatory nor adversarial[,] . . .[or] of

the non-adversarial grant of a license. Each of these different kinds of agency

actions may present the issue of finality differently.” (citations omitted)).

Although our own circuit has not explicitly elucidated these criteria in the past,

our precedent indicates that we view the remand rule as most appropriate in

adjudicative contexts. E.g., Rekstad v. First Bank Sys., Inc., 238 F.3d 1259,

1262 (10th Cir. 2001) (discussing exceptions to the remand rule which exist

because “if a district court remands an issue to an administrative agency and

- 25 -
essentially instructs the agency to rule in favor of the plaintiff,” the agency may

be precluded from appeal (emphasis added)); Baca-Prieto v. Guigni, 95 F.3d

1006, 1008 (10th Cir. 1996) (remanding a case to an Immigration Judge for

further adjudication and noting that “this circuit follows the prevailing view that

a district court order remanding an action to an administrative agency for further

proceedings is generally considered a nonfinal decision” (emphases added));

Bender, 744 F.2d at 1426 (explaining that the district court, rather than making

any final determination itself, had remanded for the agency to apply a different

legal standard when adjudicating the determination at issue).

Looking to the characteristics that influence finality, including the nature

of the agency proceeding and the character of the dispositive district court order,

Wright, supra, the order below does not share the features of a typical remand.

Here, the agency proceeding underlying the RMPA was a policymaking process

based on the exercise of BLM expertise, better described as quasi-legislative than

adjudicative. In challenging that proceeding, the plaintiffs did not contend that

BLM wrongfully adjudicated their rights, but rather that its policymaking process

was contrary to law and injured their interests. For that reason, BLM appeared

in the district court as a traditional adversarial party, defending its own actions

against challenges by the State and NMWA, rather than defending a ruling made

by the Agency in a controversy between parties appearing before it.

- 26 -
 As for the nature of the district court’s order, it simply does not square

with the traditional notion of a “remand,” wherein the reviewing court returns an

action to a lower court for further proceedings. The court’s order did not require

BLM to recommence a proceeding, or indeed to take any action at all—it simply

enjoined BLM from further NEPA violations. 15 If the Agency wishes to allow oil

and gas leasing in the plan area it must undertake additional analysis based on

the district court’s memorandum opinion, but it retains the option of ceasing such

proceedings entirely. Thus, the nature of the court’s injunction is wholly unlike

a traditional remand.

As NMWA points out, if we accepted BLM’s argument that an order of

this sort constitutes a “remand” simply because an agency is involved, the

practical consequences would be drastic: “[E]very victory by a plaintiff in a case

brought pursuant to the APA [would] necessarily [be] a non-final ‘remand’

order.” 16 NMWA Reply Br. at 3. Had Congress wished to allow appeal under

the APA only when an agency prevails on all claims in the district court, it could

have done so explicitly. It is unsurprising, then, that we have often treated

15
Though a district court’s label for its own action carries little weight in
determining the nature of that action on appeal, we note that the court below did
not couch its disposition as a “remand.”
16
This statement is technically overinclusive because we recognize
exceptions to the administrative remand rule in a narrow set of cases. See
Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 1153, 1158-59 (10th Cir.
2007).

- 27 -
district court orders requiring further agency action under NEPA as final and

reviewable in the past. 17 See, e.g., Middle Rio Grande Conservancy Dist. v.

Norton, 294 F.3d 1220, 1225 (10th Cir. 2002) (reviewing a district court decision

requiring FWS to conduct an environmental impact study); Sierra Club v. Hodel,

848 F.2d 1068, 1074 (10th Cir. 1988) (reviewing a district court decision

requiring BLM to conduct environmental analysis), overruled on other grounds

by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.

1992) (en banc); see also High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630,

640 (9th Cir. 2004) (reviewing a district court decision requiring the Forest

Service to conduct environmental analysis); Sierra Club v. Glickman, 156 F.3d

606, 612 (5th Cir. 1998) (reviewing a district court decision requiring the

Department of Agriculture to consult under the ESA); Nat’l Audubon Soc’y v.

Hoffman, 132 F.3d 7, 12, 19 (2d Cir. 1997) (reviewing a district court decision

requiring the Forest Service to conduct environmental analysis).

17
BLM points to one case where we applied the administrative remand
doctrine to bar appellate review of a district court order holding that the Forest
Service had violated FLPMA. In Trout Unlimited, 441 F.3d at 1218-19, we held
that a district court decision instructing the Forest Service to reconsider the
issuance of a permit for reservoir use was not a “final order.” However, in that
case the plaintiffs did not argue that the order below was final, but only that an
exception to the finality rule applied. Id. at 1218. Thus, even if we considered
the lower court order in that case similar for finality purposes to the memorandum
opinion in this case, Trout Unlimited does not control our analysis. Moreover,
the permitting context of Trout Unlimited falls closer to the traditional concept of
adjudication than the resource management plan process at issue here because it
settles the rights of specific parties.

- 28 -
 Both the nature of BLM’s proceeding and the character of the decision

below indicate that viewing that decision as a “remand” would strain common

sense. Our treatment of similar orders in past cases bolsters that conclusion. We

hold that the district court’s order was not an administrative remand, but rather a

final order that we have jurisdiction to review under 28 U.S.C. § 1291.

B

BLM and IPANM argue that FWS’s summer 2006 decision to reintroduce

the Aplomado Falcon into the plan area moots NMWA’s challenge under the

ESA. We agree and vacate the portion of the district court’s order addressing

this issue.

1

NWMA argues that BLM failed to comply with § 7(a)(2) of the ESA,

which requires all federal agencies to formally consult with the federal wildlife

agencies to “insure that any [agency action] is not likely to jeopardize the

continued existence of any endangered species or threatened species or result in

the destruction or adverse modification of habitat of such species.” 18 16 U.S.C.

18
During the pendency of this appeal, a series of executive actions buffeted
this heretofore settled legal landscape. On December 16, 2008, the Departments
of Commerce and Interior issued a final rule jointly adopting a regulation that
narrowed the circumstances in which agencies must initiate consultation with
FWS. See Interagency Cooperation Under the Endangered Species Act, 73 Fed.
Reg. 76272 (Dec. 16, 2008) (to be codified at 50 C.F.R. pt. 402). On March 3,
2009, however, President Obama requested a review of the new regulation and
instructed agencies in the interim to follow consultation procedures as they
(continued...)

- 29 -
§ 1536(a)(2); see also 50 C.F.R. § 402.01(b) (providing for “all . . . listed

species” other than those overseen by the National Marine Fisheries Service,

agencies “shall contact the FWS”). Despite the name, consultation is more than

a mere procedural requirement, as it allows FWS to impose substantive

constraints on the other agency’s action if necessary to limit the impact upon an

endangered species. Natural Res. Defense Council v. Houston, 146 F.3d 1118,

1125 (9th Cir. 1998); see 16 U.S.C. § 1536(b)(4), (d).

NMWA argues that BLM’s September 2003 about-face regarding the

likelihood of the RMPA adversely affecting the Falcon was arbitrary and

capricious. Because of the summer 2006 reintroduction decision, however, the

Falcon’s status under the ESA has changed. At the time of BLM’s issuance of

the Final EIS, the Falcon was listed as an endangered species, to which § 7(a)(2)

applied. See Determination of Northern Aplomado Falcon to Be an Endangered

Species, 51 Fed. Reg. at 6686-88; see also 16 U.S.C. § 1532(6) (defining the

term “endangered species”), § 1533(a) (empowering the Secretary of the Interior

to “determine whether any species is an endangered species”). Since the

promulgation of the reintroduction rule, the Falcon population in the plan area

18
(...continued)
existed before its adoption. Memorandum for the Heads of Executive
Departments and Agencies, 74 Fed. Reg. 9753, 9753 (March 6, 2009). Because
BLM must currently proceed as it would have prior to the December 16
regulation, we consider the procedures then in effect throughout our analysis.

- 30 -
falls under § 10(j) of the ESA, applicable to populations which are artificially

introduced into an area outside the naturally existing range of a species. These

populations are classified as “experimental.” 16 U.S.C. § 1539(j); Establishment

of Nonessential Experimental Population of Northern Aplomado Falcons in New

Mexico and Arizona, 71 Fed. Reg. at 42298. The ESA provides that nonessential

experimental populations outside the National Park and National Wildlife Refuge

system are treated as “proposed to be listed” rather than endangered or

threatened. § 1539(j)(2)(C); 50 C.F.R. § 17.83(a). As discussed, the § 7(a)(2)

formal consultation process applies only to species listed as threatened or

endangered and not to species that are merely proposed for listing. Compare

§ 1536(a)(2) (requiring agencies to consult with the wildlife agencies regarding

endangered and threatened species), with (a)(4) (requiring agencies to confer

with the wildlife agencies regarding any species “proposed to be listed”); see

Enos v. Marsh, 769 F.2d 1363, 1367-69 (9th Cir. 1985) (interpreting the term

“confer” as requiring only an informal discussion process rather than formal § 7

consultation). 19 Accordingly, BLM and IPANM ask us to conclude that

19
Although this distinction between the term “consult” and the term
“confer” is not apparent on the face of the statute and has not been explicitly
adopted in this circuit, it has been adopted by FWS and endorsed by the Ninth
Circuit in Enos. See 50 C.F.R. § 402.10 (“A conference between a Federal
agency and the Service shall consist of informal discussions concerning an action
that is likely to jeopardize the continued existence of the proposed species.”); see
also Establishment of a Nonessential Experimental Population of Northern
Aplomado Falcons in New Mexico and Arizona, 71 Fed. Reg. at 42302
(continued...)

- 31 -
NMWA’s ESA challenge is moot because the Falcon population at issue is no

longer subject to consultation, a contention we review de novo. See Chihuahuan

Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008). 20

In order for the federal courts to exercise jurisdiction, Article III of the

Constitution requires that the controversy between the parties remain live

throughout all stages of litigation. United States v. Seminole Nation of Okla.,

321 F.3d 939, 943 (10th Cir. 2002). “A federal court has no power to give

opinions upon moot questions or declare principles of law which cannot affect

the matter in issue in the case before it.” S. Utah Wilderness Alliance v. Smith,

110 F.3d 724, 727 (10th Cir. 1997). Attempting to persuade us that the

controversy regarding the Falcon’s ESA status remains live, NMWA directs us to

a lawsuit currently pending before our court challenging the legality of FWS’s

decision to reclassify the Falcon on the basis that the “reintroduction” area is

already within the existing range of the species. Forest Guardians v. U.S. Fish &

19
(...continued)
(“[Nonessential experimental populations] provide additional flexibility because
Federal agencies are not required to consult with us under section 7(a)(2). . . .
Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the
Service on actions that are likely to jeopardize the continued existence of [such a]
species.”). The parties do not argue before us that this interpretation is mistaken,
so we assume its validity for purposes of this case.
20
NMWA points out that BLM did not argue mootness before the district
court and urges us to reject BLM’s arguments on that basis. This suggestion is
unavailing; as a component of our jurisdiction, mootness is non-waivable. Mink
v. Suthers, 482 F.3d 1244, 1257 (10th Cir. 2007).

- 32 -
Wildlife Serv., No. 08-2226 (10th Cir. filed Sept. 24, 2008); see 16 U.S.C.

§ 1539(j); 50 C.F.R. § 17.80(a) (defining the term “experimental population” to

include an introduced population “only when, and at such times as the

[introduced] population is wholly separate geographically from nonexperimental

populations of the same species”). A favorable outcome for the appellant

environmental group in that case would mean that the Falcon population at issue

would once again be categorized as “endangered” and subject to the formal

consultation requirement. But because mootness requires a live controversy at

all stages, we must consider whether the controversy is live at the current phase

of litigation under current law. Nor do we think it appropriate to prejudge the

merits of another case before our court in order to determine whether the

outcome the plaintiffs hope for can be considered “likely.” Absent an applicable

exception, the ESA challenge is moot, and we may proceed no further.

2

Despite its jurisdictional nature, mootness does admit of certain

exceptions. See Seminole Nation of Okla., 321 F.3d 939, 944 (10th Cir. 2002).

NMWA argues that the Falcon’s reclassification, and the resulting inapplicability

of the formal consultation requirement, amounted to a voluntary cessation of

illegal behavior on the part of BLM and FWS. When a party moots a case by

voluntarily changing its own conduct, the Supreme Court instructs us to view

mootness arguments with suspicion because the offending party might otherwise

- 33 -
resume that conduct as soon as the case is dismissed. Laidlaw, 528 U.S. at 189.

This voluntary cessation exception derives from “the principle that a party

should not be able to evade judicial review . . . by temporarily altering

questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531

U.S. 278, 284 n.1 (2001); Chihuahan Grasslands Alliance, 545 F.3d at 893.

Thus, for a case to become moot, it must be “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528

U.S. at 189.

This sensible rule does not apply to BLM, for a simple reason: FWS, not

BLM, made the decision to alter the Falcon’s status by reintroducing it to the

plan area. Within the ESA context, BLM must engage in interagency

consultation with FWS. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01. Thus, for

consultation purposes, BLM and FWS operate as different actors, each with its

own goals and responsibilities, and it was FWS that decided to reintroduce and

thus reclassify the Falcon. We see no attempt by BLM to alter its conduct and

thereby evade judicial review.

As for FWS, we agree that it was that agency’s voluntary decision to

release Falcons into the plan area that led to the Falcon’s change in regulatory

status. Based on that decision, FWS granted $295,793 to nonprofit organization

the Peregrine Fund to begin releasing birds on BLM lands in New Mexico in

2007. Forest Guardians, J.A. at 461-72 (copy of grant agreement between FWS

- 34 -
and the Peregrine Fund). 21 The Fund has released some 100 birds altogether, of

which at least 50 have successfully reached independence in the wild and some

have begun to reproduce. Bureau of Land Mgmt., U.S. Dep’t of Interior, Rare

Falcons Back in New Mexico, http://www.blm.gov/nm/st/en/fo/Socorro_Field_

Office/features/rare_falcons_back.html (last visited March 17, 2009) [hereinafter

Rare Falcons Back]; Patricia Zenone, U.S. Fish & Wildlife Serv., Northern

Aplomado Falcon Reintroductions in New Mexico in 2008, Fish & Wildlife

Journal, Sep. 5, 2008, http://www.fws.gov/arsnew/regmap.cfm?arskey=24842

[hereinafter Falcon Reintroductions]. The presence of these birds makes it a

practical impossibility for FWS to reverse reintroduction because an actual

experimental population of Falcons now exists in the area at issue. 22 Thus, FWS

21
We take judicial notice of this document, which is included in the record
before us in the Forest Guardians matter. Van Woudernberg ex rel. Foor v.
Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by
McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001) (en banc) (“[T]he court
is permitted to take judicial notice of its own files and records.”); see also Fed. R.
Evid. 201(b).
22
The websites of two federal agencies, BLM and FWS, and the minutes of
the New Mexico State Resource Advisory Council contain numerous references to
the releases. E.g. Rare Falcons Back; Falcon Reintroductions; Bureau of Land
Mgmt., New Mexico Resource Advisory Council, Minutes, http://www.blm.gov/
nm/st/en/info/resource_advisory.html (last visited March 18, 2009) (follow links
for March 2008 and December 2006). We conclude that the occurrence of Falcon
releases is not subject to reasonable factual dispute and is capable of
determination using sources whose accuracy cannot reasonably be questioned, and
we take judicial notice thereof. See Fed. R. Evid. 201(b); see also O’Toole v.
Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is not
uncommon for courts to take judicial notice of factual information found on the
(continued...)

- 35 -
cannot voluntarily reclassify the Falcon population in the area as “endangered”

and thus revive plaintiffs’ ESA challenge. We have before us an example of the

rare case where it is “absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur.” Laidlaw, 528 U.S. at 189.

Accordingly, NMWA’s ESA challenge to the consultation process between

BLM and FWS regarding the Northern Aplomado Falcon is moot.

3

Given that NMWA has lost the opportunity to appeal from the district

court’s order rejecting its challenge to BLM’s ESA consultation process, NMWA

requests that we vacate the portion of that order on point. “Vacatur is in order

when mootness occurs through happenstance—circumstances not attributable to

the parties—or . . . the unilateral action of the party who prevailed in the lower

court.” Chihuahuan Grasslands Alliance, 545 F.3d at 891 (quoting Arizonans for

Official English v. Arizona, 520 U.S. 43, 71-72 (1997) (omission in original)).

Thus, we vacate that portion of the district court’s decision.

III

Turning to the merits of those issues over which we have jurisdiction, we

first consider the plaintiffs’ NEPA claims. The centerpiece of environmental

22
(...continued)
world wide web.”); City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 n.2 (9th
Cir. 2004) (“We may take judicial notice of a record of a state agency not subject
to reasonable dispute.”).

-36-
regulation in the United States, NEPA requires federal agencies to pause before

committing resources to a project and consider the likely environmental impacts

of the preferred course of action as well as reasonable alternatives. See 42

U.S.C. § 4331(b) (congressional declaration of national environmental policy);

U.S. Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756-57 (2004); Marsh v.

Or. Natural Res. Council, 490 U.S. 360, 371 (1989); Forest Guardians v. U.S.

Forest Serv., 495 F.3d 1162, 1172 (10th Cir. 2007). By focusing both agency

and public attention on the environmental effects of proposed actions, NEPA

facilitates informed decisionmaking by agencies and allows the political process

to check those decisions. Marsh, 490 U.S. at 371; Balt. Gas & Elec. Co. v.

Natural Res. Defense Council, 462 U.S. 87, 97 (1983) (identifying the

facilitation of informed agency decisionmaking and public involvement as the

“twin aims” of NEPA). The requirements of the statute have been augmented by

longstanding regulations issued by the Council on Environmental Quality

(“CEQ”), to which we owe substantial deference. Marsh, 490 U.S. at 372.

Before embarking upon any “major federal action,” an agency must

conduct an environmental assessment (“EA”) to determine whether the action is

likely to “significantly affect[] the quality of the human environment.” 42

U.S.C. § 4332(2)(C); Carpenter, 463 F.3d at 1136 n.4; 40 C.F.R. § 1508.9. If

not, the agency may issue a “finding of no significant impact” (“FONSI”) stating

as much. 40 C.F.R. § 1508.13. But if so, the agency must prepare a

-37-
thoroughgoing EIS, as BLM did here, assessing the predicted impacts of the

proposed action on all aspects of the environment, including indirect and

cumulative impacts. 23 42 U.S.C. § 4332(2)(C); 40 C.F.R. pt. 1502 & §§ 1508.11,

1508.25(c). In addition, an EIS must “rigorously explore and objectively

evaluate” all reasonable alternatives to a proposed action, in order to compare

the environmental impacts of all available courses of action. 40 C.F.R.

§ 1502.14. For those alternatives eliminated from detailed study, the EIS must

briefly discuss the reasons for their elimination. Id. At all stages throughout the

process, the public must be informed and its comments considered.

§ 1503.1(a)(4) (public comment must be requested after publication of a draft

EIS); § 1503.1(b) (public comment may be requested after publication of a final

EIS but before a decision is made); § 1506.10 (requiring notice of draft and final

EISs to be published in the federal register and setting time periods for public

comment); § 1505.2 (requiring publication of a record of decision after the

decision is made).

NEPA is silent, however, regarding the substantive action an agency may

take—the Act simply imposes procedural requirements intended to improve

environmental impact information available to agencies and the public. Marsh,

490 U.S. at 371. Even if scrupulously followed, the statute “merely prohibits

23
Alternatively, if the agency prefers, it may issue an EIS without initially
completing an EA. Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821 (10th Cir.
2008).

-38-
uninformed—rather than unwise—agency action.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 351 (1989).

As with other challenges arising under the APA, we review an agency’s

NEPA compliance to see whether it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(a);

accord Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d

1205, 1208 (10th Cir. 2002); see also Russell, 518 F.3d at 823 (NEPA challenges

must be brought under the APA because NEPA provides no private cause of

action). 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.” Utah Envtl. Cong.

v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007) (quotations omitted).

Deficiencies in an EIS that are mere “flyspecks” and do not defeat NEPA’s goals

of informed decisionmaking and informed public comment will not lead to

reversal. E.g., Citizens for Alternatives to Radioactive Dumping v. U.S. Dep’t of

Energy, 485 F.3d 1091, 1098 (10th Cir. 2007); Ecology Ctr., Inc. v. U.S. Forest

Serv., 451 F.3d 1183, 1189-90 (10th Cir. 2006).

-39-
 When called upon to review factual determinations made by an agency as

part of its NEPA process, short of a “clear error of judgment” we ask only

whether the agency took a “hard look” at information relevant to the decision.

See Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178

(10th Cir. 2008) (quotation omitted); see also 33 Charles Alan Wright & Charles

H. Koch, Jr., Federal Practice & Procedure § 8335, at 176 (2006) (“Without

engaging in review of the actual resolution of factual questions of this variety,

courts, by using the hard look standard, assure that the agency did a careful job

at fact gathering and otherwise supporting its position.”). In considering whether

the agency took a “hard look,” we consider only the agency’s reasoning at the

time of decisionmaking, excluding post-hoc rationalization concocted by counsel

in briefs or argument. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305

F.3d 1152, 1165 (10th Cir. 2002) (citing Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560, 1565 (10th Cir. 1994)). “A presumption of validity attaches to the

agency action and the burden of proof rests with the appellants who challenge

such action.” Citizens’ Comm., 513 F.3d at 1176. We review the district court

de novo, applying the APA standard of review to the agency’s actions without

deferring to the district court’s application of that standard. Id.

A

According to the State and NMWA, NEPA requires BLM to complete a

supplemental EIS specifically analyzing the likely environmental effects of

-40-
Alternative A-modified before adopting that alternative as the new management

plan for the area, and its failure to do so was arbitrary and capricious. An

agency must prepare a supplemental assessment if “[t]he agency makes

substantial changes in the proposed action that are relevant to environmental

concerns.” 24 40 C.F.R.§ 1502.9(c)(1)(i) (emphases added). When “the relevant

environmental impacts have already been considered” earlier in the NEPA

process, no supplement is required. Friends of Marolt Park v. U.S. Dep’t of

Transp., 382 F.3d 1088, 1096-97 (10th Cir. 2004). In a guide to NEPA published

in the Federal Register, the CEQ states that a supplement is unnecessary when

the new alternative is “qualitatively within the spectrum of alternatives that were

discussed in the draft” and is only a “minor variation” from those alternatives.

Forty Most Asked Questions Concerning CEQ’s National Environmental Policy

Act Regulations, 46 Fed. Reg. 18026, 18035 (Mar. 17, 1981) [hereinafter “Forty

Questions”]. 25

24
A supplemental EIS is also required when “[t]here are significant new
circumstances or information relevant to environmental concerns and bearing on
the proposed action or its impacts.” § 1502.9(c)(1)(ii). Courts face cases arising
under this prong of the regulation more frequently. See, e.g., Marsh, 490 U.S. at
374; Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1177-78 (10th Cir. 1999).
New Mexico’s challenge, however, is based on changes in the proposed action
rather than new circumstances or information.
25
We consider this document “persuasive authority offering interpretive
guidance” regarding the meaning of NEPA and the implementing regulations.
Davis v. Mineta, 302 F.3d 1104, 1125 n.17 (10th Cir. 2002).

-41-
 Rather than offer additional environmental analysis of Alternative A-

modified, BLM concluded in the SEIS that no further analysis was necessary

because the same or less surface area would ultimately be developed under

Alternative A or A-modified. For this reason, BLM determined that the change

from Alternative A to Alternative A-modified was within the scope and analysis

of the Draft EIS and did not substantially alter the environmental consequences

as required to trigger the § 1502.9 supplementation requirement. BLM and

IPANM continue to argue that Alternative A-modified was within the scope of

the previous analysis, although for different reasons than a similarity in the final

number of acres likely to be developed. 26

In its ruling, the district court found that the question of whether

Alternative A-modified would lead to greater habitat fragmentation than

Alternative A was a factual dispute. 27 It then found that there was sufficient

evidence in the record to support BLM’s prediction; thus, the failure to conduct

additional analysis in the SEIS was not arbitrary and capricious. The court also

26
It is not entirely clear that these arguments survive the Olenhouse rule
permitting us to consider only the justification the Agency provided at the time of
its decision. 42 F.3d at 1565. Giving BLM the benefit of the doubt, we will
consider all of BLM’s justifications as subspecies of the general argument that
Alternative A-modified is “within the scope” of the analysis conducted in the
Final EIS.
27
However, the court noted that it would not have accepted an argument
that the same number of acres would be developed under either alternative; rather,
the Agency was required to conclude that the fragmentation resulting from
development under either plan would be similar.

-42-
found that actual habitat fragmentation under Alternative A-modified was

dependent on factors that could not be analyzed at the planning stage.

On appeal, BLM and IPANM argue that BLM was not required to conduct

further analysis in the SEIS because surface impacts were analyzed in the Draft

EIS, and those impacts would differ only in degree, not in kind, under

Alternative A-modified. Should we disagree, they urge us to adopt the district

court’s latter rationale, that such impacts cannot practicably be analyzed until the

leasing stage when those effects become more definitive. 28 They further urge

that, even if we reject these arguments, any error was harmless. BLM and

IPANM no longer advance the position that analysis is excused because either

the amount of surface development or the ultimate amount of habitat

fragmentation is similar under Alternatives A and A-modified. This removes

from the scope of our review one of the two rationales relied upon by the district

court. DeJulius v. New Eng. Health Care Employees Pension Fund, 429 F.3d

935, 943 (10th Cir. 2005) (“[T]he other ground asserted below . . . has not been

raised on appeal and is thus waived.”).

28
IPANM also argues Alternative A-modified is within the range of
alternatives previously considered because it is less protective than Alternative B
but more protective than the No-Action Alternative. This argument confuses our
standard for assessing the reasonableness of the range of alternatives presented in
an EIS—discussed in Part III.B below—with the standard for determining
whether a supplemental EIS is required. Suffice it to say, an agency may not
decline to analyze the alternative it actually adopts simply because the overall
level of environmental protection it offers falls between that offered by analyzed
alternatives.

-43-
 1

As described above, Alternative A and Alternative A-modified differ

primarily in the restrictions they place on surface disturbances on the Otero

Mesa. Alternative A proposed a qualitative restriction on development:

Disturbances would only be allowed near existing roads. Thus, they would

remain contiguous rather than scattering across the landscape. By contrast, A-

modified imposes a quantitative restriction: Disturbances may occupy only five

percent of the Mesa at any one time.

By arguing that a difference in the degree of habitat fragmentation did not

require a fresh impacts analysis, BLM neglects the fundamental nature of the

environmental problem at issue. As is well documented in the record before us,

the location of development greatly influences the likelihood and extent of

habitat preservation. Disturbances on the same total surface acreage may

produce wildly different impacts on plants and wildlife depending on the amount

of contiguous habitat between them. BLM’s analysis of Alternative A assumed

the protections of large contiguous pieces of habitat from development.

Alternative A-modified muddied this picture, doing away with any requirement

of continuity of undisturbed lands. Although A-modified also requires

developers to work together to minimize impacts—potentially increasing the

continuity of surface developments—BLM provided so little explanation of this

-44-
“unitization” restriction that it is impossible to tell whether it would create the

same clustering of impacts as would the proximity restriction in Alternative A. 29

Moreover, this is not a case where components of fully-analyzed

alternatives were recombined or modified to create a “new” alternative whose

impacts could easily be predicted from the existing analysis. Cf. Forty

Questions, 46 Fed. Reg. at 18035 (noting that a decision to build 5,000 housing

units would be within the scope of an EIS analyzing the effects of 4,000 or 6,000

houses and would not require a supplement). Nothing in the Draft EIS so much

as hinted at a percentage-based surface occupancy restriction for the Otero Mesa,

and there is no direct or reliable way to compare the fragmentation effects of that

restriction to the effects of the restrictions analyzed in the EIS. See California v.

Block, 690 F.2d 753, 772 (9th Cir. 1982) (concluding that supplemental analysis

is required when the selected alternative “could not fairly be anticipated by

reviewing the draft EIS alternatives”).

More generally, we cannot accept that because the category of impacts

anticipated from oil and gas development were well-known after circulation of

the Final EIS, any change in the location or extent of impacts was immaterial.

Unsurprisingly, BLM provides no statutory or case law support for this

29
We are puzzled by BLM’s assertion that the two alternatives are
“qualitatively identical” because they share a goal of minimizing habitat
fragmentation. The alternatives are only “qualitatively identical” if they would
lead to identical development in identical locations.

-45-
proposition. If a change to an agency’s planned action affects environmental

concerns in a different manner than previous analyses, the change is surely

“relevant” to those same concerns. 40 C.F.R. § 1502.9(c)(1)(i). We would not

say that analyzing the likely impacts of building a dirt road along the edge of an

ecosystem excuses an agency from analyzing the impacts of building a four-lane

highway straight down the middle, simply because the type of impact—habitat

disturbance—is the same under either scenario. See, e.g., Dubois v. U.S. Dep’t

of Agric., 102 F.3d 1273, 1291-92 (1st Cir. 1996) (holding that a supplement was

required where the adopted alternative “entail[ed] a different configuration of

activities and locations, not merely a reduced version of a previously-considered

alternative”). The situation at hand is no different. NEPA does not permit an

agency to remain oblivious to differing environmental impacts, or hide these

from the public, simply because it understands the general type of impact likely

to occur. Such a state of affairs would be anathema to NEPA’s “twin aims” of

informed agency decisionmaking and public access to information. See Marsh,

490 U.S. at 371; Balt. Gas & Elec. Co., 462 U.S. at 97; Citizens Comm., 513

F.3d at 1177-78.

BLM’s unanalyzed, conclusory assertion that its modified plan would have

the same type of effects as previously analyzed alternatives does not allow us to

endorse Alternative A-modified as “qualitatively within the spectrum of

alternatives” discussed in the Draft EIS. Because location, not merely total

-46-
surface disturbance, affects habitat fragmentation, Alternative A-modified was

qualitatively different and well outside the spectrum of anything BLM

considered in the Draft EIS, and BLM was required to issue a supplement

analyzing the impacts of that alternative under 40 C.F.R. § 1502.9(c)(1)(i).

2

BLM and IPANM also argue that even if the changes in fragmentation

impacts between Alternative A and A-modified require further environmental

analysis, such analysis was impracticable until the leasing stage because the

overall level of development could not be sufficiently predicted at the RMPA

stage. All environmental analyses required by NEPA must be conducted at “the

earliest possible time.” 40 C.F.R. § 1501.2; see also Kern v. BLM, 284 F.3d

1062, 1072 (9th Cir. 2002) (“NEPA is not designed to postpone analysis of an

environmental consequence to the last possible moment. Rather, it is designed to

require such analysis as soon as it can reasonably be done.”). Because the record

reveals that BLM conducted an internal analysis of the fragmentation impacts of

Alternative A-modified in 2004, we are convinced that such analysis was

possible. Accordingly, we hold that NEPA requires BLM to release a

supplemental EIS thoroughly analyzing its newly minted alternative at the

planning stage.

-47-
 3

Finally, BLM asks that we hold any error in its analysis to be harmless.

The Agency contends that because members of the public had access to the SEIS

and record of decision and were allowed to comment on each of these, the

purposes of NEPA were fulfilled without further analysis. See 5 U.S.C. § 706

(establishing harmless error review of APA cases); Bar MK Ranches v. Yuetter,

994 F.2d 735, 740 (10th Cir. 1993) (“The harmless error rule applies to judicial

review of administrative proceedings, and errors in such administrative

proceedings will not require reversal unless Plaintiffs can show they were

prejudiced.”). While we agree that BLM’s communication with the public, as far

as it went, furthered NEPA’s goals, it was no substitute for the substantive

analysis required by section 1502.9(c)(1)(i). A public comment period is

beneficial only to the extent the public has meaningful information on which to

comment, and the public did not have meaningful information on the

fragmentation impacts of Alternative A-modified. Informed public input can

hardly be said to occur when major impacts of the adopted alternative were never

disclosed. Thus, we cannot agree that the failure to thoroughly analyze the

environmental impacts of Alternative A-modified in a public NEPA document

was harmless.

Of course, every change however minor will not necessitate a new

substantive analysis and repetition of the EIS process. To make such a

-48-
requirement would lead agencies into Xeno’s paradox, always being halfway to

the end of the process but never quite there. The selection of Alternative A-

modified was not a minor change or oversight presenting such a dilemma.

B

Aside from the need to analyze the specific land use plan BLM eventually

selected, NMWA also charges that BLM analyzed an unduly narrow range of

alternatives during the EIS process. The Agency disagrees, arguing that

Alternatives A and B and the No-Action Alternative were representative of the

full range of reasonable planning alternatives for the area.

The “heart” of an EIS is its exploration of possible alternatives to the

action an agency wishes to pursue. 40 C.F.R. § 1502.14. Every EIS must

“[r]igorously explore and objectively evaluate all reasonable alternatives.” 40

C.F.R. § 1502.14(a). Without substantive, comparative environmental impact

information regarding other possible courses of action, the ability of an EIS to

inform agency deliberation and facilitate public involvement would be greatly

degraded. See Baltimore Gas & Elec. Co., 462 U.S. at 97. While NEPA “does

not require agencies to analyze the environmental consequences of alternatives it

has in good faith rejected as too remote, speculative, or impractical or

ineffective,” it does require the development of “information sufficient to permit

a reasoned choice of alternatives as far as environmental aspects are concerned.”

Dombeck, 185 F.3d at 1174 (quotations and alteration omitted). It follows that

-49-
an agency need not consider an alternative unless it is significantly

distinguishable from the alternatives already considered. Westlands Water Dist.

v. U.S. Dep’t of the Interior, 376 F.3d 853, 868 (9th Cir. 2004).

We apply the “rule of reason” to determine whether an EIS analyzed

sufficient alternatives to allow BLM to take a hard look at the available options.

Id. The reasonableness of the alternatives considered is measured against two

guideposts. First, when considering agency actions taken pursuant to a statute,

an alternative is reasonable only if it falls within the agency’s statutory mandate.

Westlands, 376 F.3d at 866. Second, reasonableness is judged with reference to

an agency’s objectives for a particular project. 30 See Dombeck, 185 F.3d at

1174-75; Simmons v. U.S. Army Corps of Eng’rs, 120 F.3d 664, 668-69 (7th Cir.

1997); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520 (9th Cir.

1992).

NMWA argues that BLM should have analyzed a management alternative

that closed more than 17% of the plan area to leasing (the amount of land closed

by Alternative B, the most restrictive option analyzed). BLM counters that

although none of the analyzed plans would permanently close the bulk of the

30
While an agency may restrict its analysis to alternatives that suit the
“basic policy objectives” of a planning action, Seattle Audubon Soc’y v. Moseley,
80 F.3d 1401, 1404 (9th Cir. 1996), it may do so only as long as “the statements
of purpose and need drafted to guide the environmental review process . . . are not
unreasonably narrow,” Dombeck, 185 F.3d at 1175. NMWA does not argue that
the RMPA’s statement of purpose was unreasonably narrow, as indeed it was not.

-50-
plan area to development, the alternatives varied widely in the acreage subject to

various restrictions, up to and including closure. Moreover, BLM initially

considered two alternatives that would have resulted in closure or imposition of

an NSO stipulation over the entire plan area but summarily rejected these as

inconsistent with BLM’s reasonable use mandate and its projected “reasonable

foreseeable development.” BLM therefore argues that its alternatives covered a

reasonable range of management possibilities. NMWA, however, suggests two

specific alternatives that would provide a greater level of environmental

protection and argues that each should have been analyzed: (1) closing the

whole of the Otero Mesa to fluid minerals development, and (2) managing the

Otero Mesa and other fragile and relatively undisturbed parts of the plan area as

wilderness study areas. Neither possibility was considered by BLM at any stage

during the NEPA process, despite being repeatedly raised during public comment

periods and the formal protest period.

1

We begin with NMWA’s argument that BLM was required to analyze an

alternative prohibiting surface disturbances of the Otero Mesa. As discussed

above, Alternative B, the most protective alternative analyzed by BLM, placed

an NSO restriction on 116,206 acres of the 427,275-acre Mesa, approximately

27%. The remainder would be subject to controlled surface use stipulations,

including a restriction allowing development only within 492 feet of existing

-51-
roads. NMWA points out that numerous organizations and members of the public

advocated for a complete restriction on drilling on the Mesa during the planning

process, and it argues that these comments illustrate that this was a reasonable

management alternative which BLM should have analyzed.

First, we ask whether an alternative closing the entire Mesa falls within

BLM’s statutory mandate for land management. FLPMA delegates authority to

BLM to create and amend land use plans. Under the statute, BLM must develop

and revise land use plans so as to “observe the principle[] of multiple use.” 43

U.S.C. § 1712(c)(1). “Multiple use” means “a combination of balanced and

diverse resource uses that takes into account the long-term needs of future

generations for renewable and nonrenewable resources, including, but not limited

to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural

scenic, scientific and historical values.” § 1702(c).

BLM argues that an alternative that closes the entirety of the Otero Mesa

to development violates the concept of multiple use. But this argument

misconstrues the nature of FLPMA’s multiple use mandate. The Act does not

mandate that every use be accommodated on every piece of land; rather, delicate

balancing is required. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,

58 (2004). “‘Multiple use’ requires management of the public lands and their

numerous natural resources so that they can be used for economic, recreational,

and scientific purposes without the infliction of permanent damage.” Pub. Lands

-52-
Council v. Babbitt, 167 F.3d 1287, 1290 (10th Cir. 1999) (citing 43 U.S.C.

§ 1702(c)); see also Norton, 542 U.S. at 58.

It is past doubt that the principle of multiple use does not require BLM to

prioritize development over other uses. As we have reasoned in the past, “‘[i]f

all the competing demands reflected in FLPMA were focused on one particular

piece of public land, in many instances only one set of demands could be

satisfied. A parcel of land cannot both be preserved in its natural character and

mined.’” Rocky Mtn. Oil & Gas Ass’n v. Watt, 696 F.2d 734, 738 n.4 (10th Cir.

1982) (quoting Utah v. Andrus, 486 F. Supp. 995, 1003 (D. Utah 1979)); see also

43 U.S.C. § 1701(a)(8) (stating, as a goal of FLPMA, the necessity to “preserve

and protect certain public lands in their natural condition”); Pub. Lands Council,

167 F.3d at 1299 (10th Cir. 1999) (citing § 1701(a)(8)). Accordingly, BLM’s

obligation to manage for multiple use does not mean that development must be

allowed on the Otero Mesa. Development is a possible use, which BLM must

weigh against other possible uses—including conservation to protect

environmental values, which are best assessed through the NEPA process. Thus,

an alternative that closes the Mesa to development does not necessarily violate

the principle of multiple use, and the multiple use provision of FLPMA is not a

sufficient reason to exclude more protective alternatives from consideration.

BLM further argues that the purpose of the RMPA process was

inconsistent with any management alternative more restrictive than

-53-
Alternative B. See Dombeck, 185 F.3d at 1174-75. Specifically, BLM identifies

the purpose of the RMPA as identifying lands suitable for fluid minerals

development, and it concludes that any alternative that excludes or severely

restricts such development would not be “reasonable.” According to the Final

EIS, the purpose of the RMPA process was “to determine (1) which lands

overlying Federal fluid minerals are suitable for leasing and subsequent

development and (2) how those leased lands will be managed.” Contrary to

BLM’s arguments (and the district court’s conclusion), 31 this stated purpose does

not take development of the Mesa as a foregone conclusion. To the contrary, the

question of whether any of the lands in the plan area are “suitable” for fluid

minerals development is left open, and is precisely the question the planning

process was intended to address. It would fit well within the scope of the plan

objectives for BLM to conclude that no lands in the plan area are suitable for

leasing and development. Accordingly, a management alternative closing the

Otero Mesa would have been fully consistent with the objectives of the RMPA.

Applying the rule of reason, we agree with NMWA that analysis of an

alternative closing the Mesa to development is compelled by 40 C.F.R.

§ 1502.14. Excluding such an alternative prevented BLM from taking a hard

look at all reasonable options before it. While agencies are excused from

31
The district court found that BLM was operating under “a directive to
facilitate the production of oil and gas from federal lands.” The record does not
reveal a specific policy directive along these lines, nor does BLM cite one.

-54-
analyzing alternatives that are not “significantly distinguishable” from those

already analyzed, Westlands, 376 F.3d at 868, the alternative of closing only the

Mesa—which represents a small portion of the overall plan area—differs

significantly from full closure. As discussed above, the lands at issue are

extraordinary in their fragility and importance as habitat. Although the record

indicates that most development interest in the plan area focuses on the Mesa, so

too does the interest in conservation, as expressed by the public during the

comment process. Yet Alternative B, the alternative that would conserve the

largest portion of the Mesa, was a far cry from closure. 32 Given the powerful

countervailing environmental values, we cannot say that it would be

“impractical” or “ineffective” under multiple-use principles to close the Mesa to

development. Accordingly, the option of closing the Mesa is a reasonable

management possibility. BLM was required to include such an alternative in its

NEPA analysis, and the failure to do so was arbitrary and capricious.

2

32
BLM reminds us that, at the outset of the planning process, it briefly
considered two more alternatives that would prevent surface development in the
entire planning area. These alternatives are at one extreme of the spectrum of
management possibilities. Having considered them does not relieve BLM of the
duty to consider any other alternative along the spectrum between complete
closure and Alternative B. Otherwise, an agency could exclude any alternative it
wished by considering (and rejecting) an extreme. See Dombeck, 185 F.3d at
1175 (agencies must “take responsibility for defining the objectives of an action
and then provide legitimate consideration to alternatives that fall between the
obvious extremes”).

-55-
 Finally, NMWA argues that wilderness designation of some lands in the

plan area provides another reasonable alternative. 33 Wilderness is defined as

Federal land retaining its primeval character and influence, without
permanent improvements or human habitation, which . . .
(1) generally appears to have been affected primarily by the forces of
nature, with the imprint of man’s work substantially unnoticeable;
(2) has outstanding opportunities for solitude or a primitive and
unconfined type of recreation; (3) has at least five thousand acres of
land or is of sufficient size as to make practicable its preservation
and use in an unimpaired condition; and (4) may also contain
ecological, geological, or other features of scientific, educational,
scenic, or historical value.

16 U.S.C. § 1131(c). After passage of FLPMA in 1976, all public lands in the

United States were inventoried by BLM to assess their suitability for wilderness

preservation. See 43 U.S.C. § 1782; Utah, 535 F.3d at 1186-87. Lands

determined by BLM to fit the statutory definition were recommended to

Congress for formal designation as national wilderness under 43 U.S.C.

§ 1782(b). Norton, 542 U.S. at 59. Until Congress formally designates lands

that have been recommended as wilderness, they are wilderness study areas,

which BLM manages under an environmentally protective regime “so as not to

impair” their wilderness qualities. § 1782(a), (c). Nonimpairment management

implicates all potential uses of wilderness lands, including not only development

leasing but activities such as off-road vehicle access and grazing. See 43 C.F.R.

33
For a thorough explanation of the wilderness system and BLM’s authority
within it, see Utah v. U.S. Dep’t of Interior, 535 F.3d 1184 (10th Cir. 2008).

-56-
§ 6302.11 (wilderness lands are open only to “uses consistent with the

preservation of their wilderness character”).

The lands at issue in this case were included in BLM’s wilderness

inventory process which took place from 1978 through 1990. As a result of this

process, BLM recommended four areas within Sierra and Otero Counties for

wilderness designation, and they are currently managed as wilderness study

areas. BLM determined that the remainder of the plan area, including the Otero

Mesa, lacked wilderness characteristics.

Although BLM’s authority to recommend lands for Congressional

wilderness designation expired in 1991 under the terms of § 1782, BLM has

routinely decided to manage additional lands as wilderness under its general land

use planning authority. 34 See 43 U.S.C. § 1712 (granting BLM authority to issue

land management plans); Utah, 535 F.3d at 1188. NMWA argues that it was

34
NMWA spends considerable time anticipating and addressing an
argument that BLM lacks the power to manage lands as wilderness if they were
not designated as study areas before 1991, an interpretation BLM adopted in a
settlement reached between BLM and the State of Utah in another case. See
Utah, 535 F.3d at 1186 (holding that the question of BLM’s power to designate
study areas after the settlement was not ripe). BLM does not set forth this
argument on appeal, so we need not consider it. We assume arguendo that
wilderness study area designation under § 1712 is a lawful land management
option.

-57-
unreasonable for BLM not to consider wilderness designation in the RMPA

NEPA documents. 35

As stated above, an agency is not required to consider alternatives that are

unreasonable in light of the project’s purposes. Dombeck, 185 F.3d at 1174-75;

Simmons, 120 F.3d at 668-69; Idaho Conservation League, 956 F.2d at 1520.

The stated purpose of the RMPA process was “to determine (1) which lands

overlying Federal fluid minerals are suitable for leasing and subsequent

development and (2) how those leased lands will be managed.” Wilderness

designation, however, controls all possible uses, not only whether an area may be

leased for oil and gas development. BLM thus argues that such designation was

beyond the scope of the planning project. We agree. See Dombeck, 185 F.3d at

1175 (holding that “the Forest Service was fully authorized . . . to limit its

consideration to . . . alternatives designed to substantially meet the recreation

development objectives” of its planning process). Because BLM’s RMPA did

35
During the public comment period on the Draft EIS, NMWA presented
BLM with an extensive reinventory of the wilderness characteristics of lands in
the plan area. In response, BLM considered whether these lands might have
reverted to a wilderness state since being rejected during the earlier assessment.
Ultimately, in a 2003 document, it substantially reaffirmed its earlier wilderness
determinations, with one exception: BLM found that a 10,665-acre area of the
Nutt Grassland had been neglected in the earlier inventory process and
determined that it met the criteria for wilderness designation. Thus, BLM decided
to manage this area “in a manner that will preserve the entire range of
management options . . . until a land use plan revision is completed for the area.”
However, neither the Draft nor Final EIS mentioned this wilderness review or the
general possibility of designating wilderness, even as to the Nutt Grassland area.

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not govern all surface uses but only the development of subsurface fluid mineral

resources, it was permissible for BLM to determine that a management option

governing all surface uses was outside the scope of the plan’s objectives. Cf. Or.

Natural Desert Ass’n v. Bureau of Land Mgmt., 531 F.3d 1114, 1142-43 (9th Cir.

2008) (concluding that wilderness designation was a reasonable alternative when

the land use plan at issue governed a broad array of surface uses). Accordingly,

we hold that designation of wilderness study areas was reasonably excluded from

BLM’s analysis.

C

The State contends that BLM’s analysis of the environmental impacts of

the various alternative management plans failed to sufficiently consider a crucial

impact: possible contamination of the Salt Basin Aquifer (the “Aquifer”). BLM

concluded in the Draft and Final EISs that any impacts of development on the

Aquifer would be “minimal,” and it defends that conclusion on appeal. The State

argues that this determination is arbitrary and capricious because it is

unsupported by evidence in the record.

New Mexico is correct that the EISs devote little analysis to the Aquifer—

undisputably an important water resource. But insignificant impacts may

permissibly be excluded from full analysis in an EIS. See 40 C.F.R. § 1508.13

(allowing an agency to decline to prepare an EIS if it finds that an entire project

has no significant environmental impacts); § 1508.27 (defining the “significance”

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of impacts as a function of “both context and intensity”). 36 Thus, unless BLM’s

decision that impacts would be “minimal” was itself arbitrary and capricious, no

further analysis was required regardless of the Aquifer’s value as a freshwater

resource. 37

In order for a factual determination to survive review under the arbitrary

and capricious standard, an agency must “examine[] the relevant data and

articulate[] a rational connection between the facts found and the decision

made.” Citizens’ Comm., 513 F.3d at 1176; accord Or. Natural Res. Council

Fund v. Brong, 492 F.3d 1120, 1130 (9th Cir. 2007) (holding that BLM acted

arbitrarily where there was “no evidence” to support its estimate of the harm to

forest density that would be caused by a proposed logging project); see also

Russell, 518 F.3d at 831 (upholding an agency’s conclusion that a project would

have no significant impacts because some evidence supported the finding that

harvesting trees within the area would actually save habitat over the long term);

36
Of course, effects must be considered cumulatively, and impacts that are
insignificant standing alone continue to require analysis if they are significant
when combined with other impacts. 40 C.F.R. § 1508.25(a)(2). The State does
not allege that effects on the Aquifer have any such cumulative impacts.
37
We agree with BLM that it was permissible to look only to the impacts
of gas, not oil, development, because NEPA requires analysis only of
“foreseeable” impacts, 40 C.F.R. § 1502.22, and the record shows that only gas
development is likely to take place in the area. If oil development becomes
foreseeable, it is likely that assessment of its impacts would be required, given
that the Final EIS and BLM’s briefs acknowledge that oil development would
have a much greater potential to cause groundwater contamination.

-60-
Citizens for Alternatives to Radioactive Dumping, 485 F.3d at 1098-99

(upholding an agency’s decision not to analyze the likelihood of radioactive

waste contaminating groundwater through a specific rock layer because the

agency relied upon analysis, included in the record, of rock layers with greater

conductivity). We consider only evidence included in the administrative record

to determine whether an agency decision had sufficient evidentiary support.

Citizens for Alternative Energy, 485 F.3d at 1096 (holding that we look only to

the record absent “extremely limited circumstances [such as] a strong showing of

bad faith or improper behavior” (quotation omitted)).

The district court below viewed New Mexico’s challenge as a simple

disagreement with BLM’s substantive conclusions, but this analysis

misapprehends the nature of the State’s claim. The State does not ask us to

decide whether BLM is correct that impacts will be minimal. 38 Rather, the State

asks us to ensure that BLM’s conclusion was based on the requisite “hard look”

at the evidence before it. New Mexico fears that wastewater from operational

natural gas wells will be reinjected into porous underground rock formations

through disposal wells, causing contaminants in these waters to leak into the

Aquifer. In the Final EIS, BLM concluded that such contamination was not a

38
We may overturn an agency’s NEPA decisions on substantive grounds
only “if the appellants can demonstrate substantively that the agency’s conclusion
represents a clear error of judgment.” Greater Yellowstone Coal. v. Flowers, 359
F.3d 1257, 1274 (10th Cir. 2004) (quotations omitted). The State does not allege
that BLM’s decision was so substantively lacking as to meet this standard.

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realistic concern, stating without further analysis that “[t]ypically, natural gas

wells make little water and the water produced can be disposed through the use

of evaporation ponds.”

Our first inquiry is whether BLM “examined the relevant data” regarding

the likelihood of injection into, and resulting contamination of, the Aquifer.

Strikingly, BLM points to no record evidence explaining (1) how much

wastewater a natural gas well “typically” produces, (2) whether it is reasonable

to believe that wells in the plan area will be “typical,” or (3) how much

wastewater can practicably be disposed of through evaporation. See Citizens for

Alternative Energy, 485 F.3d at 1096. Upon our careful review, the evidence in

the record instead tends to support New Mexico’s view that nontrivial impacts

are possible. The State points to studies concluding that geologically similar gas

wells to those planned for the BRU produced 38 barrels, or 1,596 gallons, of

water per well per day. At this rate, under the level of development predicted by

BLM, up to 603,000 acre-feet of water of the estimated 15 million acre-feet in

the Aquifer could be contaminated. Materials in the record also suggest that the

rock formations making up the Aquifer are highly fractured and thus, especially

susceptible to the dissemination of contaminants should any be reinjected.

A sibling circuit faced a similar issue in National Audobon Society v.

Department of the Navy, 422 F.3d 174 (4th Cir. 2005). In that case, the Fourth

Circuit reviewed a Navy decision regarding where to build an aircraft landing

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field and hold training exercises. Id. at 181-82. As here, the Navy completed an

EIS, but it declined to exhaustively analyze impacts on the migratory waterfowl

that spent winters in the selected training location, id. at 183, because it

concluded at the outset that any such impacts would be “minor,” id. at 186.

Carefully reviewing the administrative record, the court concluded that the “hard

look” requirement was not satisfied: Because evidence in the record indicated

that impacts on waterfowl were a possibility, and no evidence pointed to the

opposite conclusion, it was impossible to say that the agency had sufficiently

examined the evidence before reaching its determination. See id. at 187.

Like the Fourth Circuit in National Audobon Society, on this record we are

wholly unable to say with any confidence that BLM “examined the relevant data”

regarding the Salt Basin Aquifer before determining that impacts on the Aquifer

would be “minimal.” The record is silent regarding the source of BLM’s

determination that injection (and thus, contamination) is unlikely, and it does

provide some support for a contrary conclusion. Though we do not sit in

judgment of the correctness of such evidence, where it points uniformly in the

opposite direction from the agency’s determination, we cannot defer to that

determination. See Or. Natural Desert Ass’n, 531 F.3d at 1142 (“We cannot

defer to a void.”).

BLM also argues that state and federal injection well and water-quality

regulations are designed to prevent the feared contamination. But the existence

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of these regulations does not preclude the possibility of contamination, even if

the protections are intended to prevent such an outcome. Contravening the

inference that existing protections are always 100% effective, the record contains

evidence that, despite this regulatory scheme, groundwater contamination from

gas wells has happened frequently throughout New Mexico in the past. Thus, the

mere presence of these regulations cannot make up for BLM’s failure to

demonstrate that it “examined relevant data” supporting a finding that impacts on

the Aquifer will be minimal. 39

We accordingly hold that BLM acted arbitrarily by concluding without

apparent evidentiary support that impacts on the Aquifer would be minimal. Of

course, BLM is not precluded from making the same determination once again if

it provides an evidentiary basis for doing so.

D

Although we have determined that BLM must conduct further analysis on

several issues, we do not detract from the broad discretion it exercises in doing

so. To quote our Fourth Circuit colleagues:

It is important to place the foregoing analysis in some perspective.
The final decision . . . is committed by law to the sound discretion of
the [agency], once it has complied with the requirements of NEPA.

39
If the record contained evidence supporting BLM’s conclusion that the
volume of water likely to be produced would not require injection, then such
evidence might well be rationally connected to the decision not to analyze
impacts on the Aquifer, satisfying the second prong of our review. Citizens’
Comm., 513 F.3d at 1176.

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 Our intention is in no way to wrest control of this ultimate decision
from [BLM’s] hands, or to make NEPA an insurmountable bar to
agency action. However, the requirements that Congress has set
forth in NEPA are not ones that we are free to disregard.

Nat’l Audubon Soc’y, 422 F.3d at 199. BLM disregarded NEPA when it failed

to conduct a thoroughgoing environmental analysis of its chosen land

management alternative, failed to consider the reasonable alternative of closing

the entire Otero Mesa to fluid mineral development, and failed to demonstrate

that it examined the relevant data regarding the likely impact of development on

the Aquifer. Each of these failures was more than a mere flyspeck and thwarted

NEPA’s purposes by preventing both BLM and the public from accessing the full

scope of required environmental information. Despite granting the Agency the

full measure of respect and deference warranted by the arbitrary and capricious

standard of review, we must reverse.

IV

We now reach the sole issue appealed by defendant-intervenor IPANM:

Whether NEPA requires BLM to produce an EIS analyzing the specific

environmental effects of the BRU lease before issuing that lease.

As discussed above, after issuing the Final EIS and adopting Alternative

A-modified as the new management plan for the area, BLM opened bidding for a

lease on the BRU Parcel. The BRU Parcel is adjacent to the HEYCO exploratory

well that struck gas and led to the outpouring of lease nominations that triggered

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the RMPA process. Not surprisingly, HEYCO purchased the lease. In the

district court, the State successfully argued that BLM was required to produce a

site-specific EIS addressing the environmental impacts of an oil and gas lease on

the BRU Parcel before issuing it. IPANM contends on appeal that NEPA

requires no more than (1) an EIS at the RMPA stage and (2) a later EIS when

HEYCO submits an APD. In other words, the parties dispute how the

environmental analysis of drilling in the plan area should be “tiered” as planning

progresses from the large scale to the small. 40

Oil and gas leasing follows a three-step process. “At the earliest and

broadest level of decision-making, the [BLM] develops land use plans—often

referred to as resource management plans . . . .” Pennaco Energy, Inc. v. U.S.

Dep’t of Interior, 377 F.3d 1147, 1151 (10th Cir. 2004); see also 43 U.S.C.

§ 1712(a). Next, BLM issues a lease for the use of particular land. The lessee

may then apply for a permit to drill, and BLM will decide whether to grant it.

§ 1712(e); Pennaco Energy, 377 F.3d at 1151-52, 43 C.F.R. §§ 1610.5-3,

3162.3-1(c). The parties dispute whether our precedents create a hard rule that

no site-specific EIS is ever required until the permitting stage, or a flexible test

40
“Tiering is appropriate when the sequence of statements or analyses is
. . . [f]rom a program, plan, or policy environmental impact statement to . . . a
site-specific statement or analysis.” 40 C.F.R. § 1508.28. Because BLM began
by analyzing the impacts of an area-wide management scheme, and the
implementation of that scheme will lead to many individual smaller-scale impacts
not yet considered, tiering is unquestionably appropriate here; the question is at
what stage the next set of analyses must take place.

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requiring a site-specific analysis as soon as practicable. If the latter, they dispute

whether a site-specific EIS was practicable, and thus required, before issuance of

the July 20 lease.

The parties’ claims are primarily a dispute over the interpretation of NEPA

and the CEQ regulations, which provide that assessment of a given environmental

impact must occur as soon as that impact is “reasonably foreseeable,” 40 C.F.R.

§ 1502.22, and must take place before an “irretrievable commitment of resources”

occurs, 42 U.S.C. § 4332(2)(C)(v); Pennaco Energy, 377 F.3d at 1160. We do not

pursue this interpretation with a clean slate, however, as we have already applied

these provisions to the leasing context in several past cases.

This court first addressed the tiering of impacts analysis in the oil and gas

leasing context in Park County Resource Council, Inc. v. U.S. Department of

Agriculture, 817 F.2d 609 (10th Cir. 1987), overruled in part on other grounds by

Village of Los Ranchos, 956 F.2d 970. 41 In that case, BLM had prepared an

“extensive” EA before issuing leases, concluded that leasing would have no

immediate environmental impacts, and issued a FONSI concluding that an EIS was

unnecessary at that stage. Id. at 612. Reviewing the decision to issue a FONSI

rather than an EIS, we noted that no exploratory drilling had occurred in the entire

plan area at the time the lease was issued, id. at 613, and there was no evidence

41
Park County was decided under a “reasonableness” standard of review,
which we rejected in Village of Los Ranchos in favor of the arbitrary and
capricious standard we apply herein. 956 F.2d at 972.

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that full field development was likely to occur, id. at 623. Moreover, the leased

parcel consisted of over 10,000 acres (more than six times the size of the BRU

Parcel). Id. at 613. Thus, as a common sense matter, a pre-leasing EIS would

have “result[ed] in a gross misallocation of resources” and “diminish[ed] [the]

utility” of the assessment process, and we affirmed the FONSI. Id. at 623

(quotation omitted). We concluded that preparation of both plan-level and site-

specific environmental impacts analysis was permissibly deferred until after

leasing:

As an overall regional pattern or plan evolves, the region-wide
ramifications of development will need to be considered at some
point. A singular, site-specific APD, one in a line that prior to that
time did not prompt such a broad-based evaluation, will trigger that
necessary inquiry as plans solidify. We merely hold that, in this case,
developmental plans were not concrete enough at the leasing stage to
require such an inquiry.

Id. (emphasis added). After leasing and prior to issuance of an APD, the agency

had drafted an EIS, id. at 613, and NEPA was thus satisfied, id. at 624. IPANM

argues that under Park County, BLM may routinely wait until the APD stage to

conduct site-specific analysis, even without issuing a FONSI.

We next had occasion to consider tiering in the oil and gas context in

Pennaco Energy. In that case, BLM issued leases for coal bed methane (“CBM”)

extraction on public lands in Wyoming. 377 F.3d at 1152. A plan-level EIS for

the area failed to address the possibility of CBM development, and a later EIS was

prepared only after the leasing stage, and thus “did not consider whether leases

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should have been issued in the first place.” Id. Because the issuance of leases

gave lessees a right to surface use, the failure to analyze CBM development

impacts before the leasing stage foreclosed NEPA analysis from affecting the

agency’s decision. Id. at 1160. Accordingly, we held that in the circumstances of

that case, an EIS assessing the specific effects of coal bed methane was required

before the leasing stage. 42 As in Park County, the operative inquiry was simply

whether all foreseeable impacts of leasing had been taken into account before

leasing could proceed. Unlike in Park County, in Pennaco Energy the answer was

“no.”

Taken together, these cases establish that there is no bright line rule that

site-specific analysis may wait until the APD stage. 43 Instead, the inquiry is

necessarily contextual. Looking to the standards set out by regulation and by

statute, assessment of all “reasonably foreseeable” impacts must occur at the

earliest practicable point, and must take place before an “irretrievable commitment

42
We are cognizant that Pennaco Energy arose in a very different posture
from the present appeal: Because the case came before the district court on
BLM’s appeal from a decision of the Interior Board of Land Appeals (“IBLA”),
we owed deference to IBLA’s decision to conduct site-specific analysis, rather
than to BLM’s initial decision not to conduct such analysis. 377 F.3d at 1156 &
n.5. However, we could not have affirmed IBLA’s decision, regardless of the
level of deference, if there were an hard-and-fast rule that assessment need not
occur until the APD stage.
43
Even in Park County, when we approved delaying analysis until the APD
stage, we did so based on the specific findings of an EA and FONSI, the first
steps in the NEPA process. Here, BLM did not issue a FONSI.

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of resources” is made. 42 U.S.C. § 4332(2)(C)(v); Pennaco Energy, 377 F.3d at

1160; Kern, 284 F.3d at 1072; 40 C.F.R. §§ 1501.2, 1502.22. Each of these

inquiries is tied to the existing environmental circumstances, not to the formalities

of agency procedures. Thus, applying them necessarily requires a fact-specific

inquiry. Both the Ninth Circuit and the District of Columbia Circuit have reached

the same conclusion. See N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 973,

977-78 (9th Cir. 2006) (concluding that an agency’s failure to conduct site-specific

analysis at the leasing stage may be challenged, but that a “particular challenge”

lacked merit when environmental impacts were unidentifiable until exploration

narrowed the range of likely drilling sites); Sierra Club v. Peterson, 717 F.2d

1409, 1415 (D.C. Cir. 1983) (concluding that an agency may wait to evaluate

environmental impacts until after the leasing stage if it lacks information

necessary to evaluate them, “provided that it reserves both the authority to

preclude all activities pending submission of site-specific proposals and the

authority to prevent proposed activities if the environmental consequences are

unacceptable”).

Applying these standards to the July 20 lease, we first ask whether the lease

constitutes an irretrievable commitment of resources. Just as we did in Pennaco

Energy, 377 F.3d at 1160, and the D.C. Circuit did in Peterson, 717 F.2d at 1412,

1414, we conclude that issuing an oil and gas lease without an NSO stipulation

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constitutes such a commitment. 44 The same regulation we cited in Pennaco Energy

remains in effect and provides that HEYCO cannot be prohibited from surface use

of the leased parcel once its lease is final. See 43 C.F.R. § 3101.1-2 (“A lessee

shall have the right to use so much of the leased lands as is necessary to explore

for, drill for, mine, extract, remove and dispose of all the leased resource in a

leasehold subject to: Stipulations attached to the lease . . . [and other] reasonable

measures . . . .”). Because BLM could not prevent the impacts resulting from

surface use after a lease issued, it was required to analyze any foreseeable impacts

of such use before committing the resources.

Accordingly, the next question is whether any environmental impacts were

reasonably foreseeable at the leasing stage. Considerable exploration has already

occurred on parcels adjacent to the BRU Parcel, and a natural gas supply is known

to exist beneath these parcels. Based on the production levels of existing nearby

wells, the record reveals that HEYCO has concrete plans to build approximately

30 wells on the BRU Parcel and those it already leases, and it has obtained the

necessary permits for a gas pipeline connecting these wells to a larger pipeline in

Texas. We agree with the district court that the impacts of this planned gas field

were reasonably foreseeable before the July 20 lease was issued. Thus, NEPA

44
Internal BLM documents also support this conclusion. BLM Handbook
H-1624-1 (“By law, these impacts must be analyzed before the agency makes an
irreversible commitment. In the fluid minerals program, this commitment occurs
at the point of lease issuance.”).

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required an analysis of the site-specific impacts of the July 20 lease prior to its

issuance, 45 and BLM acted arbitrarily and capriciously by failing to conduct one. 46

V

New Mexico raises a single claim under FLPMA, arguing that BLM had a

statutory duty to circulate Governor Richardson’s alternative proposed

management plan to the public and specifically invite comment upon it, which it

failed to do. Because FLPMA, like NEPA, creates no private right of action, we

also review this issue under the APA’s arbitrary and capricious standard. Utah v.

Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998).

45
In every EIS, NEPA requires cumulative analysis of possible
environmental impacts. See 40 C.F.R. § 1508.25(c) (requiring analysis of direct,
indirect, and cumulative impacts). Accordingly, BLM is obligated under well-
established law to analyze the effects of development on HEYCO’s existing
leases; roads and pipelines constructed to reach its wells; and any other impacts it
can foresee at this stage.
New Mexico argues that BLM has not yet sufficiently analyzed the impacts
of the approved pipeline. The State does not ask us to overturn BLM’s approval
of the pipeline permits (nor could it, as it did not request such relief below); to
the contrary, it urges that analysis of impacts from the pipeline should occur
alongside analysis of all other aspects of oil and gas development of the BRU
Parcel. Based on the principal of cumulative impacts, we agree.
46
NMWA urges that in the Record of Decision memorializing the adoption
of Alternative A-modified, BLM committed to undertake site-specific
environmental review before the issuance of any leases, and that this commitment
was binding under 40 C.F.R. § 1505.3, which provides that “[m]itigation and
other conditions established in the environmental impact statement or during its
review and committed as part of the decision shall be implemented” (citation
omitted). Given our holding that site-specific review was required at the leasing
stage under NEPA itself, we need not reach this argument.

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 FLPMA requires BLM to coordinate its land use planning with state

governments. 43 U.S.C. § 1712(c)(9) (providing that BLM shall “coordinate the

land use inventory, planning, and management [of federal lands] with the land use

planning and management programs . . . of the States and local governments

within which the lands are located”). Governors must have the opportunity to

advise BLM of their positions on draft land use plans, and BLM must consider this

input and ensure that “land use plans . . . [are] consistent with State and local

plans to the maximum extent . . . [the Secretary of the Interior] finds consistent

with Federal law.” 47 Id.

To facilitate BLM’s consistency review, BLM must notify state governments

of proposed resource management plans and amendments and “identify any known

inconsistencies with State or local plans, policies or programs.” 43 C.F.R.

§ 1610.3-2(e). The governor’s office then has 60 days to identify inconsistencies

with state law and policy and make recommendations in writing. Id. Finally, if

BLM does not accept these recommendations, the state may appeal to the BLM

National Director, who “shall accept the recommendations of the Governor(s) if

he/she determines that they provide for a reasonable balance between the national

interest and the State’s interest.” Id. BLM and New Mexico followed this

procedure. Governor Richardson signed his “Consistency Review of and

47
New Mexico has abandoned its argument below that the RMPA is
substantively inconsistent with state plans in violation of this statute.

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Recommended Changes to” the Final EIS on March 5, 2004, accompanied by a

press release and published on a state website. 48 BLM declined to adopt the bulk

of the Governor’s proposals, and the state appealed to the Director, who denied the

appeal.

In addition to notifying the state of any perceived inconsistencies,

regulations also require BLM to ensure that members of the public have the

opportunity to review and comment on a state’s written recommendations. Section

1610.3-2(e) provides:

If the written recommendations of the Governor(s) recommend
changes in the proposed plan or amendment which where not raised
during the public participation process on that plan or amendment,
the State Director shall provide the public with an opportunity to
comment on the recommendation(s).

BLM did not circulate the Governor’s recommendations to the public or

specifically solicit comments on those recommendations at any time.

We conclude that BLM nonetheless provided a sufficient opportunity to

comment. 49 As described above, BLM responded to Governor Richardson’s

48
We take judicial notice of the existence and online availability of the
review and accompanying press release. See Consistency Review; Press Release,
N.M. Energy, Minerals and Natural Res. Dep’t, Governor Bill Richardson, ENMR
Sec’y Joanna Prukop Issue N.M.’s Response to BLM Proposal for Otero Mesa
Governor’s Plan Offers More Protections for Env’t & Wildlife (March 8, 2004),
available at http://www.emnrd.state.nm.us/MAIN/Administration/News/
GovernorsOteroMesaPlanRel.pdf.
49
Thus, we need not determine, as the district court did, whether such an
opportunity was required—that is, whether the Governor’s plan suggested
(continued...)

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recommendations by rejecting the majority of his proposals but adopting the

suggestion that certain core habitat areas be permanently closed to leasing.

Accordingly, BLM issued an SEIS describing this change. The SEIS was

circulated to the public, 50 and the Governor’s consistency review was posted on

BLM’s website. 51 In the cover letter accompanying the SEIS, BLM explained that:

This supplement is intended to . . . [i]dentify the three areas that the
Governor of New Mexico has recommended for closure to leasing,
and that BLM is now proposing to close to leasing[, and to a]llow the
public an opportunity to comment on these issues (emphasis added).

Similarly, in its statement of purpose, the SEIS explained that the habitat closure

was suggested by the governor during his § 1610.3-2(e) consistency review:

During the . . . 30-day public protest period and 60-day Governor’s
Consistency Review period, BLM received feedback indicating
concern about the extent of changes made between the Draft EIS and
the Final EIS. The perception by the Governor of New Mexico and
many of the public is that the changes between the Draft and Final
are significant, and that there should have been an opportunity for
the BLM to receive public input in the form of comments prior to
issuance of the Final EIS. In addition, the Governor of New Mexico
has recommended that two areas . . . be permanently closed to
leasing (emphases added).

49
(...continued)
changes not previously raised during the public participation process.
50
Specifically, the SEIS was sent to the individuals who had requested
copies of earlier documents related to the RMPA process and to relevant federal,
state, tribal, and local agencies.
51
The Record of Decision confirms that BLM placed the review on its
website.

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 A notice of the availability of the SEIS was published in the Federal

Register, explaining that the habitat changes therein were adopted “[i]n response

to recommendations offered by the Governor of New Mexico, made pursuant to 40

C.F.R. 1610.3-2.” 69 Fed. Reg. at 30718. The public was given thirty days from

publication of the notice to comment on the SEIS. Id. During this comment

period, BLM received many comments related to the contents of the Governor’s

review.

We conclude that because BLM circulated an SEIS that discussed the

Governor’s consistency review, published a notice in the Federal Register of the

SEIS comment period mentioning the Governor’s review, and both BLM and New

Mexico posted the review on their websites, the public was apprised of the

existence of the Governor’s review and was afforded an “opportunity to comment”

on his proposals. Indeed, many citizens took advantage of this opportunity. A

meaningful opportunity to comment is all the regulation requires. It does not

require BLM to circulate copies of the Governor’s review as a matter of course. 52

The opportunity provided by BLM was sufficient, assuming any opportunity was

required, and the State’s challenge must fail.

52
We do not foreclose the possibility that circulation might be necessary to
provide a meaningful opportunity to comment in different circumstances.

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 VI

For the foregoing reasons, we VACATE as moot that portion of the district

court’s order disposing of NMWA’s ESA challenge. We AFFIRM the district

court’s determination that BLM complied with FLPMA, AFFIRM its finding that

NEPA requires BLM to conduct further site-specific analysis before leasing lands

in the plan area, and REVERSE its conclusion that BLM complied with NEPA in

its plan-level analysis.

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