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Northern Cheyenne Tribe v. Norton

 

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The Northern Cheyenne Tribe (Tribe) and Native Action, an advocacy group, petitioned the Ninth Circuit for review of a partial injunction issued by the District Court for the District of Montana after finding the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) by failing to consider a “phased development” alternative when issuing a final Environmental Impact Statement (EIS) concerning coal bed methane (CBM) development in the Powder River Basin. The partial injunction permitted a “phased development” of CBM reserves while BLM prepared a supplemental EIS analyzing that alternative. The Ninth Circuit upheld the injunction as a proper exercise of the district court’s equitable discretion.

The Powder River Basin (Basin) in Montana and Wyoming is the largest coal deposit in the United States and includes extensive CBM deposits. CBM, a natural gas generated by coal deposits, is trapped in coal seams by groundwater. Developers extract CBM by pumping the overlying groundwater into rivers to decrease pressure on the gas, thereby allowing the gas to percolate so it may be piped to surface for recompression and shipping. The CBM extraction process potentially causes at least three main environmental problems: aesthetic harm, water pollution, and lowering water tables below surface users’ current well depths.

Although the surface of the Basin has long been utilized for farm and ranch activities, the federal government owns most of the subsurface mineral rights. BLM manages these mineral resources under resource management plans for the Powder River Resource Area. In 1994, BLM prepared an EIS analyzing development of oil and gas resources in the Basin. As a result of this EIS, amended the management plan to include limited development of CBM deposits. In 1997, BLM began leasing oil and gas resources, and the leaseholders’ explorations revealed extensive CBM deposits. In 2002, BLM issued a draft EIS analyzing development of CBM. The draft EIS analyzed five alternatives ranging from “No Action” to “Emphasize CBM Development.” The “Preferred Alternative” purported to facilitate CBM development while sustaining social values and existing land uses.

Several groups (including the Tribe) challenged the draft EIS, and suggested a “phased development” alternative. The final EIS responded to the submitted comments by stating the issues were addressed in the EIS or should have been challenged as part of a 1994 resource management plan that included exploration and development of CBM.

The district court concluded that the final EIS “generally passed muster” but should have considered the “phased development” alternative. Upon recommendation from BLM, the district court entered a partial injunction that prohibited development on 93 percent of the resource area but allowed development on 7 percent of the area, subject to site-specific review. The district court believed this injunction amounted to implementation of the “phased development” alternative pending BLM’s preparation of a supplemental EIS, while furthering the public interest in developing CBM as a clean-burning fuel alternative.

The district court found that the plaintiffs failed to show CBM would cause environmental degradation. BLM studies indicated a lesser environmental impact than originally anticipated, and BLM planned to strengthen protections for rivers, groundwater, and tribal cultural resources while preparing the supplemental EIS. Further, the site-specific plans for development called for independent NEPA analyses prior to issuance of any drilling permit. Therefore, the development areas would be subjected to an additional NEPA analysis prior to development.

The Tribe and Native Action appealed. The Ninth Circuit stayed all CBM development pending the appeal.

The Ninth Circuit first addressed plaintiffs’ argument that, because the district court found a violation of NEPA for failure to consider the “phased development” alternative, the district court was obliged to enjoin all CBM development. The scope of an injunction is reviewed for abuse of discretion. Injunctive relief is appropriate when a party demonstrates 1) irreparable injury, 2) inadequate remedies at law, 3) the balance of the hardships warrants an equitable remedy, and 4) the public interest is not disserved by the injunction.[1]Although injunctive relief is typically appropriate in environmental cases because environmental injury is often irreparable,[2]the Ninth Circuit noted that there is no rule mandating automatic issuance of blanket injunctive relief upon a finding of a statutory violation,[3]and a district court has broad discretion in crafting appropriate equitable relief.[4]

The Ninth Circuit determined the district court did not abuse its discretion in issuing a partial injunction instead of a full injunction. The district court acted appropriately by balancing the equities of the parties in light of the four equitable factors-the court permitted the phased development requested by the plaintiffs (and, in doing so, cured the NEPA violation), concluded the injunction would cause no irreparable harm (because a permit cannot issue without a site-specific environmental analysis) and considered the public interest in clean energy development and environmental harm prevention. The Ninth Circuit determined this decision to issue a partial injunction comported with United States Supreme Court and Ninth Circuit precedent.[5]

The Ninth Circuit then turned to the Tribe’s claim that, under the National Historic Preservation Act (NHPA),[6]BLM must consult with the Tribe prior to issuing leases on the resource area because it contains sites of great cultural importance to the Tribe. The Tribe also asserted the EIS was inadequate in its examination of sociological and cultural effects of CBM development on the Tribe. The Ninth Circuit did not reach the merits of these claims because, prior to any CBM development activities, BLM must prepare an additional EIS, consult with the Tribe under the NHPA, and issue permits. Moreover, the final EIS required a site-specific cultural impact analysis as part of the NEPA analysis for each site. Given these additional processes, Ninth Circuit deemed the Tribe’s claims unripe and declined to intervene further.

Judge Schroeder, dissenting, agreed with the majority that BLM violated NEPA; however, he strongly disputed the majority’s conclusion that the district court’s injunction was proper. Judge Schroeder noted that NEPA is meant to ensure the government considers all alternatives prior taking major action, and fundamental principles of injunctions stress maintenance of the status quo and avoidance of undue harm. He asserted that here the majority allowed BLM to take action without adequate environmental analysis, thereby creating a threat of irreparable harm by permitting development of CBM reserves.


[1] eBay Inc. v. MercExchange, L.L.C., 126 S.Ct. 1837, 1839 (2006).

[2] Amoco Prod. Co. v. Village of Gambell (Amoco), 480 U.S. 531, 545 (1987).

[3] Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982).

[4] High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir. 2004).

[5]See Weinberger, 456 U.S. at 314-15(refusal to enjoin nonpolluting discharge of ordinance in violation of NEPA does not “undercut the purpose and function of the [NEPA] permit system”); Amoco, 480 U.S. at 544(presumption of irreparable harm “is contrary to traditional equitable principles” and not required for environmental protection); High Sierra Hikers, 390 F.3d at 642-43(partial injunction proper for NEPA violation where harms to both sides sufficiently considered).

[6] 16 U.S.C. §§ 470-70x-6 (2000).

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