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Motion for Preliminary Injunction and Opening Brief

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Motion for Preliminary Injunction and Opening Brief Case 1:18-cv-00187-REB Document 30 Filed 07/06/18 Page 1 of 5 Laurence (“Laird”) J. Lucas (ISB # 4733) [email protected] Todd C. Tucci (ISB # 6526) [email protected] Talasi B. Brooks (ISB # 9712) [email protected] Sarah K. Stellberg (ISB # 10538) [email protected] Advocates for the West P.O. Box 1612 Boise, ID 83701 (208) 342-7024 (208) 342-8286 (fax) Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF IDAHO WESTERN WATERSHEDS PROJECT, ) No. 01:18-cv-187-REB and CENTER FOR BIOLOGICAL ) DIVERSITY, ) ) MOTION FOR PRELIMINARY Plaintiffs, ) INJUNCTION v. ) ) ORAL ARGUMENT REQUESTED RYAN K. ZINKE, Secretary of Interior; ) DAVID BERNHARDT, Deputy Secretary ) Expedited Decision Requested Before of Interior; and UNITED STATES ) September 15, 2018 BUREAU OF LAND MANAGEMENT, ) an agency of the United States, ) ) Defendants. ) Plaintiffs Western Watersheds Project and Center for Biological Diversity seek a preliminary injunction under Federal Rule of Civil Procedure 65, barring Federal Defendants Ryan Zinke et al. from restricting environmental reviews and public participation in Bureau of Land Management (BLM) oil and gas leasing decisions under recently-adopted Instruction MOTION FOR PRELIMINARY INJUNCTION – 1 Case 1:18-cv-00187-REB Document 30 Filed 07/06/18 Page 2 of 5 Memorandum (IM) 2018-034, and directing them to continue following prior BLM procedures under IM 2010-117—including by allowing at least 30-day comment and protest periods—until Plaintiffs’ challenges to IM 2018-034 can be adjudicated on the merits. (Copies of IM 2018-034 and IM 2010-117 are attached as Exhibits to the accompanying Declaration of Laird J. Lucas). Specifically, Plaintiffs seek narrowly tailored injunctive relief that prohibits Federal Defendants from implementing the following provisions of IM 2018-34 and reinstating the corresponding provisions of IM 2010-117: (a) Enjoin IM 2018-034, Section III.B.5 - “Public Participation” and reinstate IM 2010-117, Section III.C.7 - “Public Participation”; (b) Enjoin IM 2018-034, Section III.D - “NEPA Compliance Documentation” and reinstate IM 2010-117, Section III.E - “NEPA Compliance Documentation”; (c) Enjoin IM 2018-034, Section IV.B - “Lease Sale Parcel Protests” and reinstate IM 2010-117, Section III.H - “Lease Sale Parcel Protests”; and (d) Enjoin IM 2018-034: Section III.A - “Parcel Review Timeframes” and reinstate IM 2010-117, Section III.A - “Parcel Review Timeframes.” Plaintiffs seek entry of this preliminary injunctive relief prior to September 15, 2018, when BLM is scheduled to conduct third quarter 2018 oil and gas lease auctions based on IM 2018-034, and enjoining BLM from conducting any oil and gas lease reviews pursuant to IM 2018-034 after that date. Plaintiffs request that the injunctive relief remain in effect through December 2018, when BLM is scheduled to conduct fourth quarter 2018 oil and gas lease auctions based on IM 2018-034, and that the injunctive relief continue in effect for all subsequent BLM oil and gas lease sales until Plaintiffs’ challenges to IM 2018-034 are adjudicated on the merits. MOTION FOR PRELIMINARY INJUNCTION – 2 Case 1:18-cv-00187-REB Document 30 Filed 07/06/18 Page 3 of 5 As set forth in the accompanying brief and declarations, Plaintiffs and the public face irreparable harm of several types from BLM’s implementation of IM 2018-034 to avoid or reduce environmental reviews and public notice, comment, and protests of proposed oil and gas leases, and Plaintiffs are likely to prevail in their claims challenging IM 2018-034 as violating federal laws including the Federal Lands Policy and Management Act, National Environmental Policy Act, and Administrative Procedure Act. Entry of the narrowly-tailored injunctive relief sought by Plaintiffs will not impose irreparable harms on Federal Defendants, and the balancing of harms and public interest favor the requested injunctive relief as well. This Motion for Preliminary Injunction is supported by the Complaint on file in this matter (Docket No. 1); the accompanying Plaintiffs’ Opening Brief In Support Of Motion For Preliminary Injunction; the accompanying Declarations of Plaintiffs’ representatives Michael Saul, Erik Molvar, Kelly Fuller, and Laura Cunningham; the accompanying Declarations of non- parties Jeff Kuyper, Shaleas Harrison, Kevin Emmerich, and Linda F Baker; the accompanying Declaration of Laird J. Lucas, attaching copies of relevant BLM documents; and by such other and further matters as may be presented to the Court prior to decision on this motion. Plaintiffs also request that the Court waive any bond requirement under Federal Rule of Civil Procedure 65(c), or impose a minimal bond not to exceed $100, in light of the public interest nature of this proceeding and to ensure Plaintiffs’ access to judicial relief. Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985); Barahona- Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999). WHEREFORE, for reasons explained in the accompanying brief and declarations, Plaintiffs respectfully request that this Court grant this motion and issue the above-requested preliminary injunction enjoining Federal Defendants from implementing IM 2018-034 with MOTION FOR PRELIMINARY INJUNCTION – 3 Case 1:18-cv-00187-REB Document 30 Filed 07/06/18 Page 4 of 5 respect to environmental reviews and public notice, comment and protest procedures over BLM proposed oil and gas lease auctions beginning with the planned third quarter 2018 lease sales and continuing through the fourth quarter 2018 and subsequent lease sales, until Plaintiffs’ challenges to IM 2018-034 can be adjudicated on the merits. Dated this 6th day of July, 2018. Respectfully submitted, /s/ Laurence (“Laird”) J. Lucas Laurence (“Laird”) J. Lucas (ISB # 4733) Todd C. Tucci (ISB # 6526) Talasi B. Brooks (ISB #9712) Advocates for the West P.O. Box 1612 Boise, ID 83701 (208) 342-7024 (208) 342-8286 (fax) Attorneys for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on this 29th day of June 2018, I electronically filed the foregoing MOTION FOR PRELIMINARY INJUNCTION and the accompanying OPENING BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION, and DECLARATIONS OF MICHAEL SAUL, ERIK MOLVAR, KELLY FULLER, LAURA CUNNINGHAM, JEFF KUYPER, SHALEAS HARRISON, KEVIN EMMERICH, LINDA F BAKER, and LAIRD J. LUCAS (and all exhibits thereto) with the Clerk of the Court using the CM/ECF system, which sent a Notice of Electronic Filing (NEF) to the following persons: Counsel for Federal Defendants John Shaughnessy Most U.S. Dept. of Justice [email protected] Luther L. Hajek U.S. Dept. of Justice [email protected] Counsel for Intervenor-Movants State of Wyoming & Western Energy Alliance Erik Edward Petersen MOTION FOR PRELIMINARY INJUNCTION – 4 Case 1:18-cv-00187-REB Document 30 Filed 07/06/18 Page 5 of 5 [email protected] Michael M. Robinson [email protected] Paul A. Turcke [email protected] Bret A. Sumner [email protected] /s/ Laird J. Lucas Laird J. Lucas Attorney for Plaintiffs MOTION FOR PRELIMINARY INJUNCTION – 5 Case 1:18-cv-00187-REB Document 30-1 Filed 07/06/18 Page 1 of 40 Laurence (“Laird”) J. Lucas (ISB # 4733) [email protected] Todd C. Tucci (ISB # 6526) [email protected] Talasi B. Brooks (ISB # 9712) [email protected] Sarah K. Stellberg (ISB # 10538) [email protected] Advocates for the West P.O. Box 1612 Boise, ID 83701 (208) 342-7024 (208) 342-8286 (fax) Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF IDAHO WESTERN WATERSHEDS PROJECT, and CENTER FOR BIOLOGICAL DIVERSITY, Case No. 1:18-cv-00187-REB Plaintiffs, PLAINTIFFS’ OPENING BRIEF IN SUPPORT OF MOTION FOR v. PRELIMINARY INJUNCTION RYAN K. ZINKE, Secretary of Interior; DAVID BERNHARDT, Deputy Secretary of Interior; and UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States, Defendants. Case 1:18-cv-00187-REB Document 30-1 Filed 07/06/18 Page 2 of 40 TABLE OF CONTENTS INTRODUCTION……………………………………………………………………………… 1 LEGAL BACKGROUND………………………………………………………………………. 3 I. THE FEDERAL LAND POLICY AND MANAGEMENT ACT (FLPMA)…… 3 II. THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)…………………4 III. OIL AND GAS LEASING ON PUBLIC LANDS……………………………… 6 STATEMENT OF RELEVANT FACTS……………………………………………………….. 8 A. The Sage-Grouse Plan Amendments……………………………………. 8 B. Prior BLM Lease Review Process……………………………………… 9 C Trump Administration Efforts to Exclude Environmental Reviews and Public Participation in Leasing Decisions……………………………….10 D. BLM Is Now Applying IM 2018-034……………………………………12 ARGUMENT…………………………………………………………………………………….15 I. APPLICABLE LEGAL STANDARDS…………………………………………15 II. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS……………… 16 A. IM 2018-034 Is a Final Agency Action Reviewable under the APA……16 B. IM 2018-034 is Procedurally Invalid Under FLMPA, NEPA and the APA………………………………………………………………….17 1. BLM Unlawfully Issued IM 2018-034 Without Notice-and- Comment Procedures Required Under FLPMA and the APA….18 2. BLM Unlawfully Issued IM 2018-034 Without Notice-and- Comment Procedures Required Under CEQ’s NEPA Regulations………………………………………………………20 C. BLM’s Elimination of Critical Opportunities for Public Participation in Leasing Decisions is Arbitrary, Capricious, and Contrary to Law……....20 OPENING BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION - ii Case 1:18-cv-00187-REB Document 30-1 Filed 07/06/18 Page 3 of 40 1. IM 2018-034 is Contrary to FLPMA’s Public Participation Requirements………………………………………………………...20 2. IM 2018-034 Violates NEPA and Implementing Regulations by Failing to Involve the Public “To the Extent Practicable”………….. 25 3. BLM Failed to Consider the Benefits of Public Participation or Provide a Basis for Its Departure from IM 2010-117………………..27 III. MANY FORMS OF IRREPARABLE HARM WARRANT AN INJUNCTION……………………………………………………………………30 A. Irreparable Environmental Harm from Oil and Gas Development………30 B. Irreparable Harm from Bureaucratic Commitment to Leasing…………. 32 C. Irreparable Harm to Plaintiff Organizations and the Public……………..34 IV. THE BALANCE OF HARDSHIPS FAVORS AN INJUNCTION…………….
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