United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2011 Decided November 18, 2011

No. 10-5386

THEODORE ROOSEVELT CONSERVATION PARTNERSHIP,

APPELLANT

v.

KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS THE

SECRETARY OF THE UNITED STATES DEPARTMENT OF THE

INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01047)

Thomas R. Wilmoth argued the cause for appellant. With

him on the briefs was Donald G. Blankenau.

Robert H. Oakley, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for federal appellees. R.

Craig Lawrence, Assistant U.S. Attorney, and Justin R. Pidot

and David C. Shilton, Attorneys, U.S. Department of Justice,

entered appearances.
2

John F. Shepherd argued the cause and filed the brief for

appellees QEP Resources, Inc., SWEPI, LP, and Ultra

Resources, Inc.

James Kaste, Senior Assistant Attorney General, Office

of the Attorney General for the State of Wyoming, and Affie

Ellis, Assistant Attorney General, were on the brief for amicus

curiae State of Wyoming in support of appellees.

Before: SENTELLE, Chief Judge, ROGERS and GRIFFITH,

Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: The Pinedale Anticline Project

Area (the PAPA) consists of a little over 198,000 acres of

federal, state, and private land in western Wyoming. The

Bureau of Land Management (BLM or the Bureau) manages

roughly 80 percent of this land, which contains the thirdlargest natural gas field in the United States. In 2000, the

Bureau issued a Record of Decision (2000 Record of Decision

or 2000 ROD) meant to guide the management of the first

substantial development of the PAPA’s natural gas resources. 

In 2008, the Bureau adopted a new Record of Decision (2008

Record of Decision or 2008 ROD), which, among other

things, authorized the development of more natural gas wells

than the earlier Record of Decision had sanctioned and

provided for management and mitigation of the development. 

Theodore Roosevelt Conservation Partnership (TRCP), an

association including members who pursue recreational

hunting in the PAPA, filed for declaratory and injunctive

relief in the district court, arguing that the Bureau’s 2008

Record of Decision violated the Federal Land Policy and

Management Act; that the accompanying environmental

impact statement (EIS) violated the National Environmental
3

Policy Act; and that the 2000 Record of Decision violated

both acts. The district court granted summary judgment for

the Bureau. TRCP appeals from that judgment. We affirm

the judgment of the district court.

I. Legal Framework

A. The National Environmental Policy Act

The National Environmental Policy Act of 1969 (NEPA),

42 U.S.C. § 4321 et. seq., mandates that federal agencies

“consider fully the environmental effects of their proposed

actions.” Theodore Roosevelt Conservation P’ship v. Salazar,

616 F.3d 497, 503 (D.C. Cir. 2010). As is well established,

NEPA is “essentially procedural.” Vermont Yankee Nuclear

Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,

558 (1978). It does not mandate “particular substantive

environmental results”; rather, it “focus[es] Government and

public attention on the environmental effects of proposed

agency action.” Marsh v. Or. Natural Res. Council, 490 U.S.

360, 371 (1989). Put simply, NEPA ensures “‘a fully

informed and well-considered decision, not necessarily’ the

best decision.” Theodore Roosevelt Conservation P’ship, 616

F.3d at 503 (quoting Vermont Yankee, 435 U.S. at 558). To

this end, NEPA requires that an agency prepare an EIS for any

“major Federal action[] significantly affecting the quality of

the human environment.” 42 U.S.C. § 4332(2)(C).

The EIS is a detailed analysis, prepared with expert

assistance, of the projected environmental impact of a

proposed major federal action. Theodore Roosevelt

Conservation P’ship, 616 F.3d at 503 (citing 42 U.S.C.

§ 4332(2)(C)). The EIS must explain the action’s

environmental impact as well as “any adverse environmental

effects which cannot be avoided should the proposal be
4

implemented.” 42 U.S.C. § 4332(2)(C)(i), (ii). This

discussion must address the “relevant issues and opposing

viewpoints” in sufficient detail to assure adequate evaluation

of a proposed action’s environmental effects. Nevada v.

Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006). 

At the “heart” of the EIS is the agency’s evaluation of the

potential environmental impacts of all “reasonable

alternatives” for completing the action. City of Alexandria v.

Slater, 198 F.3d 862, 866 (D.C. Cir. 1999) (quoting 40 C.F.R.

§ 1502.14). The EIS must “inform decisionmakers and the

public of the reasonable alternatives which would avoid or

minimize adverse impacts or enhance the quality of the

human environment.” 40 C.F.R. § 1502.1. The range of

reasonable alternatives must include “technically and

economically practical or feasible” alternatives. 43 C.F.R.

§ 46.420(b). This range is “delimit[ed]” by the agency’s

reasonably defined goals for the proposed action. City of

Alexandria, 198 F.3d at 867 (quoting Citizens Against

Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir.

1991)). 

B. The Federal Land Policy and Management Act

The Bureau manages public lands pursuant to the Federal

Land Policy and Management Act of 1976 (FLPMA), 43

U.S.C. § 1701 et. seq. FLPMA mandates that the Bureau

“manage the public lands under principles of multiple use and

sustained yield.” Id. § 1732(a). Multiple use management

entails balancing competing uses of land, “including, but not

limited to, recreation, range, timber, minerals, watershed,

wildlife and fish, and [uses serving] natural scenic, scientific

and historical values.” 43 U.S.C. § 1702(c). Achieving a

sustained yield “requires [the Bureau] to control depleting

uses over time, so as to ensure a high level of valuable uses in
5

the future.” Norton v. S. Utah Wilderness Alliance, 542 U.S.

55, 58 (2004). In managing public lands according to these

overarching principles, the Bureau must “take any action

necessary to prevent unnecessary or undue degradation of the

lands.” 43 U.S.C. § 1732(b). 

II. Background

A. The Pinedale Anticline Project Area

The PAPA encompasses just over 198,000 acres of

federal, state, and private land in western Wyoming. It

contains what is now considered the third-largest natural gas

field in the United States (Pinedale Field). The PAPA also

provides other natural resources, including recreational

opportunities and wildlife habitat. In particular, the PAPA

supports part of the “winter range” for mule deer and

pronghorn, which serves as survival habitat during harsh

winter conditions. The PAPA also provides year-round

habitat for part of a significant population of the greater sagegrouse. This habitat includes mating-display grounds called

leks as well as brood-rearing areas and wintering areas. Mule

deer, pronghorn, and sage-grouse are game species of

particular interest to this region’s hunters. 

The Bureau manages the roughly 80 percent of the

federally owned land and resources in the PAPA. The

government has leased most of its mineral resources,

including most of the Pinedale Field, to oil and gas companies

(the Operators). Energy development in the PAPA remained

negligible until the 1990s, when new drilling technology

allowed for commercially practicable recovery of the PAPA’s

natural gas. 
6

B. The 2000 Record of Decision

Faced with increasing development interest, the Bureau

released a Record of Decision in 2000 authorizing significant

expansion of natural gas development in the PAPA. See

BUREAU OF LAND MANAGEMENT, RECORD OF DECISION FOR

PINEDALE ANTICLINE OIL AND GAS EXPLORATION AND

DEVELOPMENT PROJECT ENVIRONMENTAL IMPACT

STATEMENT (July 2000) (2000 ROD). The 2000 Record of

Decision required monitoring and mitigation measures

intended to preserve the PAPA’s other natural resources. 

These measures included, among other things, restrictions on

development tied to the seasonal needs of affected species,

one-quarter-mile buffers around all sage-grouse leks, and a

formal process called Adaptive Environmental Management

(AEM) intended to monitor development and respond to

adverse environmental impacts as they arose. 

Over the next several years, development increased at a

faster-than-predicted rate. Several Operators requested, and

the Bureau approved, a series of exceptions to seasonal

restrictions on development as provided for in the 2000

Record of Decision. Wildlife populations declined during this

period, due at least in part to the increased natural gas

development and the concomitant increase in human

presence. In 2005, the Operators proposed a new

development plan that provided for additional wells, yearround drilling (i.e., lifting the seasonal restrictions on

development introduced by the 2000 Record of Decision), and

a concentrated development scheme. 

C. The 2008 EIS

In response to the Operators’ proposal, the Bureau

prepared and issued a draft supplemental EIS in 2006 that
7

analyzed three alternatives addressing the Operators’

proposal. Under Alternative A, the “no action” alternative,

the Bureau would reject the Operators’ proposal and continue

management under the 2000 Record of Decision. Alternative

B would essentially implement the proposal, including yearround drilling, 4,399 additional wells (drilled from 600 well

pads), concentrated development, and mitigation measures. 

Alternative C was similar to Alternative B, but would

decrease the core drilling area and specify where year-round

drilling could not occur rather than specify only where yearround drilling could occur. 

After receiving public and governmental input, the

Bureau issued a revised draft supplemental EIS that included

the three alternatives from the draft supplemental EIS along

with two additional alternatives. Alternative D, the Bureau’s

preferred alternative, built upon Alternative C and added

further mitigation measures and voluntary suspension of

mineral leases on the land bordering the core area (the PAPA

flanks). Alternative E also started with Alternative C but

reduced the pace of development, retained the seasonal

restrictions on development implemented by the 2000 Record

of Decision, and authorized the construction of more well

pads. 

The Bureau issued the final EIS on June 27, 2008. See

BUREAU OF LAND MANAGEMENT, FINAL SUPPLEMENTAL

ENVIRONMENTAL IMPACT STATEMENT FOR THE PINEDALE

ANTICLINE OIL AND GAS EXPLORATION AND DEVELOPMENT

PROJECT (June 2008) (2008 EIS). The 2008 EIS states that the

Bureau’s purpose and need was “to act upon the [Operators’]

proposal to revise the PAPA ROD to expand the level of

development by drilling 4,399 new producing wells and to

relax seasonal restrictions in certain areas[,] . . . with

compensating protections for wildlife through limitation of
8

activity in other areas and additional mitigation measures in

and outside of the PAPA.” 2008 EIS at 1-9. It details the five

alternatives addressing the Operators’ proposal (Alternatives

A-E), with Alternative D as the Bureau’s preferred

alternative. 

D. The 2008 Record of Decision

In September 2008, the Bureau adopted a Record of

Decision based on its preferred Alternative D. BUREAU OF

LAND MANAGEMENT, RECORD OF DECISION FOR THE

SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT,

PINEDALE ANTICLINE OIL AND GAS EXPLORATION AND

DEVELOPMENT PROJECT (September 2008) (2008 ROD). By

its terms, the 2008 Record of Decision superseded the 2000

Record of Decision. It authorized development of up to 4,399

wells on no more than 600 well pads (down from the 700

producing well pads authorized by the 2000 Record of

Decision). The 2008 Record of Decision also included the

following mitigation measures intended to minimize and

offset the environmental impact of development:

• Cessation of seasonal restrictions on development for

five development areas in the “core area” of the

PAPA, which makes up 23 percent of the PAPA,

along with concentrated development in the core

area. 

• “Geographically phased” development within each

core development area—i.e., concentrated

development that proceeds in stages in smaller areas

rather than all at once. 

• Voluntary suspension of the Operators’ mineral

leases on the PAPA flanks, and, for all but one
9

Operator, a prohibition on new development on the

flanks even beyond the five-year period until

comparable acreage in the core area has been

returned to functional wildlife habitat. 

• Various measures intended to reduce human impact,

including directional drilling (which allows for more

wells on each well pad and thus fewer well pads), a

liquids-gathering system to reduce truck traffic,

installation of computer-controlled systems for some

Operators, and busing of work crews. 

• A monitoring and mitigation fund “will be used for

both on-site and off-site mitigation and projectrelated activities in the PAPA vicinity including

additional air quality monitoring, additional wildlife,

livestock, vegetation, and reclamation.” 2008 ROD

at 17. Operators were required to contribute at least

$4.2 million initially, and they must pay into the fund

for each well drilled up to a total of $36 million. 

 

• A wildlife monitoring and mitigation matrix

detailing measures for monitoring wildlife in the

PAPA and sequential mitigation responses based on

changes identified by that monitoring. The matrix

includes triggers for mitigation for mule deer when

the population declines from 2005–2006 levels by 15

percent. 

Based on these mitigation measures—particularly the

concentration of development in both area and duration—the

Bureau reasoned that the 2008 Record of Decision would

“afford superior crucial winter range and greater sage-grouse

habitat in the long-term through reducing disturbance, both to
10

habitat and that caused by human presence, during the

production phase.” 2008 ROD at 24. 

E. Procedural History

TRCP filed in the district court a complaint seeking

declaratory and injunctive relief against the Department of the

Interior and the Bureau. QEP Resources, Inc., SWEPI, LP,

and Ultra Resources, Inc.—three of the primary lessees of

federally owned mineral rights in the PAPA—intervened as

defendants. The district court granted summary judgment in

favor of the Department of the Interior, the Bureau, and the

intervenors. Theodore Roosevelt Conservation P’ship v.

Salazar, 744 F. Supp. 2d 151, 165 (D.D.C. 2010). TRCP

appeals.

III. Analysis

We review de novo the district court’s grant of summary

judgment. Theodore Roosevelt Conservation P’ship, 616 F.3d

at 507. As neither FLPMA nor NEPA provides a private right

of action, we review the Bureau’s actions under the

Administrative Procedure Act (APA), 5 U.S.C. § 501 et seq. 

Theodore Roosevelt Conservation P’ship, 616 F.3d at 507. 

The APA requires that a reviewing court set aside any agency

action, finding, or conclusion that is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” 

Id. (quoting 5 U.S.C. § 706(2)(A)).

TRCP advances several arguments for invalidating

various Bureau actions and reversing the district court’s grant

of summary judgment:
11

(1) the Bureau violated NEPA by not including a

reasonable range of alternatives in the 2008 EIS that

supports the 2008 Record of Decision;

(2) the Bureau failed adequately to address in the 2008

EIS the proposed development’s impact on hunting,

thus failing to give hunting impacts the “hard look”

review NEPA requires;

(3) the Bureau’s determination that the 2008 Record of

Decision’s mitigation measures will prevent

“unnecessary or undue degradation” of the PAPA, as

FLPMA requires, was arbitrary and capricious; and

(4) the Bureau violated FLPMA and NEPA by failing to

enforce the 2000 Record of Decision, and the district

court erred when it determined that these claims

were moot.

We address each argument in turn.

A. The Inclusion of a Reasonable Range of Alternatives in

the 2008 EIS

The Bureau considered in the 2008 EIS five alternatives

addressing the Operators’ proposal for expanded development

of the PAPA. TRCP argues that by omitting an alternative

calling for scaled-back development to comport with the 2000

Record of Decision, the Bureau violated NEPA regulations

that mandate evaluation of “all reasonable alternatives.” See

40 C.F.R. § 1502.14.

Regulations implementing NEPA (promulgated by the

Council on Environmental Quality) require that an agency

developing an EIS evaluate “all reasonable alternatives,”
12

including a no-action alternative. Id. An alternative is

“reasonable” if it is objectively feasible as well as “reasonable

in light of [the agency’s] objectives.” City of Alexandria, 198

F.3d at 867; see also 43 C.F.R. § 46.420(b) (defining

“reasonable alternatives” as those alternatives “that are

technically and economically practical or feasible and meet

the purpose and need of the proposed action”).

Because “[t]he goals of an action delimit the universe of

the action’s reasonable alternatives,” Citizens Against

Burlington, 938 F.2d at 195, determining whether an agency

has included all reasonable alternatives requires us to decide

first whether the agency has reasonably defined its stated

goals. See City of Alexandria, 198 F.3d at 867. An agency

determining its objectives for an action “should consider the

needs and goals of the parties involved in the application or

permit as well as the public interest.” 43 C.F.R. §

46.420(a)(2). But “[i]t is the [B]ureau’s purpose and need for

action that will determine the range of alternatives and

provide a basis for the selection of an alternative in a

decision.” Id. (emphasis added). The agency should also

“always consider the views of Congress” to the extent they

are discernible from the agency’s statutory authorization and

other directives. Citizens Against Burlington, 938 F.2d at

196.

Importantly, we review both an agency’s definition of its

objectives and its selection of alternatives under the “rule of

reason.” Citizens Against Burlington, 938 F.2d at 195-96; see

also City of Alexandria, 198 F.3d at 867 (stating that both of

these inquiries demand “considerable deference to the

agency’s expertise and policy-making role”). That is, as long

as the agency “look[s] hard at the factors relevant to the

definition of purpose,” we generally defer to the agency’s

reasonable definition of objectives. Citizens Against
13

Burlington, 938 F.2d at 196. Of course, we will reject an

“unreasonably narrow” definition of objectives that compels

the selection of a particular alternative. Id. If the agency’s

objectives are reasonable, we will uphold the agency’s

selection of alternatives that are reasonable in light of those

objectives. Id.; City of Alexandria, 198 F.3d at 867.

As noted, we begin by determining whether the Bureau

reasonably defined its objectives for this action. It did. The

EIS expressly states that the Bureau’s purpose and need was

“to act upon the Proponents’ proposal to revise the PAPA

ROD to expand the level of development by drilling 4,399

new producing wells and to relax seasonal restrictions in

certain areas.” 2008 EIS at 1-9. This objective was

reasonable under the circumstances: In light of the discovery

of significantly more recoverable natural gas in the PAPA

than had been anticipated, the Operators approached the

Bureau with a specific proposal that would permit recovery of

these resources while mitigating environmental impact. 

Rather than choosing a broad or open-ended objective, the

Bureau reasonably chose to confine its goal simply to

addressing this proposal. 

Such an objective plainly takes into account the “needs

and goals of the parties involved” by directly addressing the

Operators’ proposal. See Citizens Against Burlington, 938

F.2d at 196 (“When an agency is asked to sanction a specific

plan . . . the agency should take into account the needs and

goals of the parties involved . . . .”). 

TRCP calls the Bureau’s stated objective “unreasonably

narrow” because it focuses only on the Operators’ need to

increase production, but TRCP misreads the Bureau’s explicit

statement of purpose and need. The Bureau does not state a

purpose to enact or adopt the Operators’ proposal to some
14

degree; rather, its purpose is to “act upon” that proposal. The

former language might be unreasonably narrow to the extent it

presupposes approval of the proposal, thereby limiting the

alternatives to be analyzed to only those that would enact the

proposal. See Citizens Against Burlington, 938 F.2d at 196. 

The EIS, however, simply states that the Bureau’s intent was

to “act upon” the proposal—i.e., to decide whether to adopt

the proposal at all, and if so, to what degree. This objective

permits a reasonable range of alternatives that either reject the

proposal or adopt it to varying degrees or with alterations.

TRCP would prefer that the Bureau choose a broader

purpose: “to manage the PAPA properly in light of eight years

of degradation that was inconsistent with its prior NEPA

projections and the 2000 ROD.” Appellants’ Reply Br. at 11. 

TRCP seems primarily concerned that the Bureau did not

address, in this action, the decline in PAPA wildlife

populations that has occurred since 2000. But it is reasonable

for the Bureau to have chosen to tackle these declines first in

the context of the Operators’ proposal. Even if the Bureau

had determined after environmental analysis that the wildlife

declines necessitated a scaling back of development rather

than expansion or maintenance of the status quo, it could have

rejected the proposal using the alternatives it included (i.e.,

chosen the no-action alternative), and then, in a separate step,

initiated a plan of its own to address the declines as needed. 

TRCP provides no authority suggesting that the Bureau was

required to lump together all possible management actions in

the 2008 EIS.

Given the Bureau’s purpose for its action, it chose a

reasonable range of alternatives. The Bureau evaluated five

alternatives in the 2008 EIS addressing the Operators’

proposal. One alternative rejected the proposal, another

implemented the proposal in full, and three alternatives
15

implemented modified versions of the proposal that differed

primarily in the degree of mitigation required and the size of

the core area available for year-round drilling. The Bureau’s

preferred alternative altered the Operators’ proposal by

requiring additional mitigation measures and extracting a

commitment from the Operators to suspend their leases on the

PAPA flanks for at least five years to further the overall

mitigation scheme. Another alternative would have reduced

the pace of development in the PAPA by retaining the 2000

Record of Decision’s seasonal restrictions on development.

These alternatives provided a reasonable range of

possible actions addressing the proposal. This range of

alternatives allowed the Bureau to “act upon” the proposal in

the most logical ways it could do so: by (1) rejecting the

proposal, (2) approving the proposal “as is,” or (3) approving

the proposal with some degree of modification. As the district

court stated, “[g]iven the decision the [Bureau] faced—that is,

whether . . . to act upon the lease-holders’ proposal—it was

reasonable to examine different ways in which that proposal

could be implemented compared against a baseline of no

action.” Theodore Roosevelt Conservation P’ship, 744 F.

Supp. 2d at 161. 

TRCP argues that the Bureau was required to analyze an

additional alternative that would cap or scale back

development and return wildlife populations that existed at

the adoption of the 2000 Record of Decision because the

Bureau’s original goal for managing the PAPA was to

maintain its wildlife populations at those levels. But TRCP’s

premise is flawed. TRCP relies on a statement in a wildlife

protection plan authored by a Bureau consultant, pursuant to

the 2000 Record of Decision, stating that the plan will “assist

land managers and project personnel in efforts to achieve and

maintain desired levels of wildlife populations on the PAPA
16

(e.g. pre-project levels).” However, as the Bureau correctly

points out, this is by no means a formal statement that the

Bureau’s management goal was or is to prevent any decline in

wildlife populations, nor does it serve as a binding mandate. 

In fact, the 2000 Record of Decision itself explicitly aimed to

“allow[] for natural gas exploration and development while

continuing to provide for the existing principal and major uses

. . . for this area (e.g., domestic livestock grazing, fish and

wildlife habitat protection . . .).” 2000 ROD at 1. Nothing in

the record demonstrates that preventing all declines in

wildlife populations was ever the Bureau’s management

objective. And of course, more important, the 2008 EIS

confirms that the Bureau’s purpose for its present action was

limited to addressing the Operators’ specific proposal. The

Bureau selected a reasonable range of alternatives in light of

its purpose; it was under no obligation to include a scaledback-development alternative that would not “bring about the

ends of the federal action.” City of Alexandria, 198 F.3d at

867 (quoting Citizens Against Burlington, 938 F.2d at 195)

(internal quotation marks omitted).

B. Analysis of the Environmental Impact on Hunting in the

2008 EIS

The 2008 EIS specifically identified as a public concern

the proposed development’s potential impact on hunting. 

TRCP argues that the Bureau violated NEPA by failing

adequately to analyze the potential impact on hunting in the

PAPA.

Under NEPA, an agency must take a “hard look” at the

environmental effects of its proposed action. Nevada v. Dep’t

of Energy, 457 F.3d 78, 92-93 (D.C. Cir. 2006). The focus of

the “hard look” doctrine is to “ensure that the agency has

adequately considered and disclosed the environmental
17

impact of its actions and that its decision is not arbitrary or

capricious.” Id. at 93 (citing Balt. Gas & Elec. Co. v. NRDC,

462 U.S 87, 97-98 (1983)). The rule of reason applies here as

well. Id. We have consistently declined to “‘flyspeck’ an

agency’s environmental analysis, looking for any deficiency

no matter how minor.” Id. (citations omitted).

The Bureau sufficiently analyzed the proposed action’s

impact on hunting in its 2008 EIS. It recognized that biggame hunting is a “major recreational activity in the PAPA”

and that “[v]arious game bird species” are also hunted. 2008

EIS at 3-49. The Bureau concluded that hunting opportunities

will decrease in the PAPA under any of its five alternatives

due to “decreased abundance of big game and upland game

birds from increased density of wellfield development and . . .

surface disturbance.” 2008 EIS at 2-62. The impact would

increase under alternatives B through E due to increased

surface disturbance. Id.

Several parts of the record support this conclusion. First,

the Bureau indicated that “[i]t is generally assumed” that

“benefits-based recreation” like hunting will generally decline

in areas commonly used for such activities “when the

landscape and its qualities are changed by development.” 

2008 EIS at 3-48. The Bureau cited “[n]oise, odor, increased

traffic, dust, changes in setting, and other competing factors

from development” as “intrusive” factors that cause

recreationists to avoid these areas. Id. The Bureau also stated

that “hunters may find it unsafe to use some areas because of

the density of development, or they may have a less rewarding

experience if project activities affect wildlife populations in

the area.” 2008 EIS at 4-54. It then pointed out that while

hunting recreation-days increased slightly in the Bureau

Pinedale Field Office Administrative Area, hunting
18

recreation-days in and near the PAPA declined from 2001 to

2006 during the first wave of development. 2008 EIS at 3-49. 

The Bureau also engages in detailed analysis of the

proposed development’s effects on the wildlife the TRCP

members hunt, including mule deer and greater sage-grouse. 

This analysis concludes that surface disturbance and loss of

habitat function are likely to adversely impact the populations

of several game species. Given the direct and intuitive link

between a decrease in game species and a corresponding

decrease in opportunities to hunt those species, such an

analysis reasonably supports the Bureau’s conclusion that

hunting opportunities are likely to decrease. Taken as a

whole, the Bureau’s analysis of the proposed development’s

impact on game species and hunting opportunities is

“tolerably terse” rather than “intolerably mute.” See City of

Alexandria, 198 F.3d at 870-71. We conclude that the

Bureau’s discussion satisfies its hard-look mandate. 

C. The Bureau’s Determination that the 2008 Record of

Decision Prevents Unnecessary or Undue Degradation

The Bureau’s 2008 Record of Decision permits

significant expansion of energy development in the PAPA. It

also implements measures intended to mitigate the adverse

environmental effects of the development. TRCP asserts that

the 2008 Record of Decision violates FLPMA because these

measures will fail, leaving in place a development plan that

degrades the environment without mitigation.

FLPMA requires that the Bureau, in managing public

lands, “take any action necessary to prevent unnecessary or

undue degradation of the lands.” 43 U.S.C. § 1732(b). The

Department of the Interior’s Board of Land Appeals has

interpreted “unnecessary or undue degradation” to mean the
19

occurrence of “something more than the usual effects

anticipated” from appropriately mitigated development. 

Biodiversity Conservation Alliance, 174 I.B.L.A. 1, 5-6

(March 3, 2008). Application of this standard is necessarily

context-specific; the words “unnecessary” and “undue” are

modifiers requiring nouns to give them meaning, and by the

plain terms of the statute, that noun in each case must be

whatever actions are causing “degradation.” See, e.g., Utah v.

Andrus, 486 F. Supp. 995, 1005 n.13 (D. Utah 1979) (defining

“unnecessary” in the mining context as “that which is not

necessary for mining”) (emphasis added). Here, that action is

the development required to extract natural gas from the

PAPA’s formidable reserves. Our inquiry, then, is whether

the record supports the Bureau’s determination that the 2008

Record of Decision will implement sufficient measures to

prevent degradation unnecessary to, or undue in proportion to,

the development the Record of Decision permits.

We also must view FLPMA’s “unnecessary or undue

degradation” standard in light of its overarching mandate that

the Bureau employ “principles of multiple use and sustained

yield.” 43 U.S.C. § 1732(a). While these obligations are

distinct, they are interrelated and highly correlated. The

Bureau must balance multiple uses in its management of

public lands, including “recreation, range, timber, minerals,

watershed, wildlife and fish, and [uses serving] natural scenic,

scientific and historical values.” 43 U.S.C. § 1702(c). It must

also plan for sustained yield—“control [of] depleting uses

over time, so as to ensure a high level of valuable uses in the

future.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,

58 (2004). Thus, by following FLPMA’s multiple-use and

sustained-yield mandates, the Bureau will often, if not always,

fulfill FLPMA’s requirement that it prevent environmental

degradation because the former principles already require the

Bureau to balance potentially degrading uses—e.g., mineral
20

extraction, grazing, or timber harvesting—with conservation

of the natural environment. If the Bureau appropriately

balances those uses and follows principles of sustained yield,

then generally it will have taken the steps necessary to prevent

unnecessary or undue degradation.

In light of FLPMA’s multiple-use and sustained-yield

mandates, the Bureau did not act arbitrarily or capriciously in

determining that the plan in the 2008 Record of Decision will

prevent unnecessary or undue degradation of the PAPA. In

adopting the 2008 Record of Decision, the Bureau recognized

the primary competing uses of the PAPA: the recovery of

natural gas from the third-largest natural gas field in the

continental United States and recreational use of the PAPA’s

other natural resources. Pursuant to its multiple-use mandate,

the Bureau decided to allow additional natural gas extraction

in the PAPA while implementing significant measures to

mitigate the degradation the Bureau conceded would be

necessary to allow significant recovery. The record supports

the Bureau’s determination that these mitigation measures

would be adequate to prevent degradation that is unnecessary

to, or undue in proportion to, the natural gas development that

the 2008 Record of Decision permits.

The record shows that human presence constitutes the

primary source of harm to the game species with which TRCP

is primarily concerned. The mitigation scheme of the 2008

Record of Decision is geared towards reducing human

presence while still allowing for development. Indeed,

several parts of the mitigation scheme, including computerassisted remote monitoring of wells, directional drilling from

fewer well pads, busing of crews, centralized processing and

storage, and a liquids-gathering system, are intended to reduce

human presence in the PAPA year-round. The Bureau could

reasonably conclude that these mitigation measures would
21

adequately serve to prevent unnecessary or undue degradation

of wildlife by reducing harmful human presence. Indeed, the

Wyoming Game & Fish Department (WGFD) expressly

recommended these measures for precisely this purpose. 

Letter from Terry Cleveland, Director, WGFD, to Matt

Anderson Pinedale Field Office, Bureau of Land Management

(Apr. 6, 2007) (WGFD Letter). 

Other measures required by the 2008 Record of Decision

also target human presence. The Record of Decision

concentrates development necessary to recover natural gas in

a core area of the PAPA while leaving undeveloped large

contiguous blocks of wildlife habitat, including critical winter

range, on the PAPA flanks. As well pads in the core area are

fully reclaimed, they are to be returned to functioning habitat. 

Lifting seasonal development restrictions will accelerate this

habitat reclamation. Further, most of the Operators will only

be allowed to begin developing the flanks at the later of five

years or when comparable acreage in the core area is returned

to functional habitat. This will leave 49,903 acres

undisturbed. WGFD recommended these steps because they

would benefit wildlife by “retaining the maximum amount of

functional habitat for wildlife over as much of the project area

as possible throughout delineation, development and

production of the field.” WGFD Letter. The Bureau could

reasonably conclude that this phased, accelerated

development scheme would aid in preventing unnecessary or

undue degradation by limiting the amount of human presence

and leaving functional habitat available at all times. 

In addition to these impact-reducing measures, the 2008

Record of Decision requires a monitoring and mitigation fund

for on- and off-site mitigation as needed. It also incorporates

a Monitoring and Mitigation Matrix that sets forth a sequence

of mitigation measures, some to be implemented immediately
22

and others to be used as a backstop in the event of further

wildlife declines. 

TRCP does not carry its burden of showing that the

Bureau acted arbitrarily and capriciously. TRCP points to

various statements in the record to support its assertion that

the mitigation measures the Bureau has implemented in the

2008 Record of Decision will fail, leaving in place

development without accompanying mitigation. As an initial

matter, however, TRCP failed to address several important

mitigation measures upon which the Bureau also relied to

make its determination. Further, as to the measures TRCP

does address, other statements in the record draw conclusions

contrary to TRCP’s. For example, TRCP contends that there

is no evidence that removing the seasonal restrictions on

development will benefit wildlife, but the same comment log

upon which TRCP relies for this assertion goes on to state that

past and ongoing studies have not been able to show that

continuing the seasonal restrictions will provide effective

mitigation either. Additionally, as the district court noted,

WGFD supported removing the seasonal restrictions on

development because the overall mitigation plan contained

“longer-term” and “significantly better” benefits for wildlife

than the measures in place in the 2000 Record of Decision. 

WGFD Letter. 

Even where TRCP offers evidence that a particular

mitigation measure likely will be ineffective, it fails to

provide any other solution that still would permit significant

recovery of natural gas—a use FLPMA requires the Bureau to

balance with conservation. Specifically, TRCP argues that

there is no evidence that the Bureau’s one-quarter-mile buffer

for greater sage-grouse leks will prevent the sage-grouses

from abandoning their leks or attending in smaller numbers. 

The Bureau concedes that one-quarter-mile buffers “will not
23

avoid adverse consequences to the greater sage grouse,” but

the record shows that TRCP’s recommended two-mile buffer

would prevent natural gas extraction in nearly the entire

PAPA. Again, FLPMA prohibits only unnecessary or undue

degradation, not all degradation.

In sum, the Bureau could reasonably conclude that the

mitigation measures the 2008 Record of Decision implements,

which comport with WGFD recommendations and utilize

reasonably available technology, will prevent unnecessary or

undue degradation by (1) reducing the footprint and duration

of human presence, (2) providing funding for and oversight of

monitoring and mitigation, and (3) specifying additional

mitigation measures to be implemented if further declines in

wildlife populations are observed. TRCP’s arguments to the

contrary—pointing out the ineffectiveness of a few of the

specific mitigation measures in place while failing to offer

feasible alternatives that would still allow for significant

development and ignoring conflicting evidence in the

record—do not establish that the Bureau’s determination was

arbitrary or capricious. We conclude that the record supports

the Bureau’s determination that the measures implemented by

the 2008 Record of Decision will prevent unnecessary or

undue degradation of the PAPA.

D. Mootness of the Claims Based on Non-Enforcement of

the 2000 Record of Decision

Before the district court, TRCP also alleged that the

Bureau violated FLPMA and NEPA by not adhering to

requirements found in the 2000 Record of Decision. The

district court deemed these claims moot because the 2008

Record of Decision superseded the 2000 Record of Decision. 

TRCP asserts that the district court erred and that these claims

remain justiciable. We agree with the district court. TRCP’s
24

claims based on violations of the 2000 Record of Decision are

moot.

Article III limits the jurisdiction of federal courts to

“actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305,

317-18 (1988). We have “no authority ‘to give opinions upon

moot questions or abstract propositions, or to declare

principles or rules of law which cannot affect the matter in

issue in the case before it.’” Church of Scientology v. United

States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159

U.S. 651, 653 (1895)). If it becomes “impossible for the court

to grant ‘any effectual relief whatever’ to a prevailing party”

on a particular claim, that claim must be dismissed. Id.

(quoting Mills, 159 U.S. at 653).

TRCP seeks relief for alleged FLPMA and NEPA

violations based on the Bureau’s failure to enforce the 2000

Record of Decision. But that Record of Decision no longer

exists; the Bureau’s 2008 Record of Decision superseded the

2000 Record of Decision “in its entirety.” 2008 ROD at 1. At

that time, it became impossible to grant any prospective relief

for a failure to enforce the 2000 Record of Decision. We can

neither invalidate, nor require the Bureau to adhere to, a

Record of Decision that has “disappeared into the regulatory

netherworld.” Nw. Pipeline Corp. v. FERC, 863 F.2d 73, 77

(D.C. Cir. 1988).

TRCP suggests that its claims are not moot because we

can grant relief for violations stemming from the 2000 Record

of Decision by invalidating parts of the 2008 Record of

Decision and requiring the Bureau to rewrite it to mitigate any

degradation caused by those violations. That is, even if the

2008 Record of Decision is valid, TRCP argues that we

should nevertheless invalidate it if we find that the Bureau

violated NEPA or FLPMA in its execution of the superseded
25

2000 Record of Decision. This we cannot do. If the 2008

Record of Decision is valid, it is valid. We are not going to

invalidate a valid Record of Decision to remedy the alleged

non-enforcement of an earlier Record of Decision which has

no current force or effect.

TRCP argues that even if these claims would otherwise

be moot, the mootness doctrine provides an exception for

them because the violations asserted are “capable of

repetition, yet evading review.” S. Pac. Terminal Co. v. ICC,

219 U.S. 498, 515 (1911). Even if the alleged violations

satisfy the “evading review” requirement, they are not

“capable of repetition.” An action is “capable of repetition”

only if there is a “reasonable expectation that the same

complaining party would be subjected to the same action

again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). 

The “same action” generally refers to “particular agency

policies, regulations, guidelines, or recurrent identical agency

actions.” Pub. Utilities Comm’n v. FERC, 236 F.3d 708, 715

(D.C. Cir. 2001). TRCP provides no reason to expect that its

members will again be subjected to the “same action.” It is

certainly unreasonable to expect the Bureau to repeat

violations based on the 2000 Record of Decision itself

because that Record of Decision has been superseded. 

Moreover, even if a new and substantively distinct violation

based on the new and different 2008 Record of Decision could

be considered the “same action,” TRCP has provided no

evidence—beyond the alleged past violations of a superseded

Record of Decision—that the Bureau will commit any such

violation. Our general presumption that a federal agency will

follow its own regulations therefore stands, see Friends of

Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006), and

TRCP’s final argument that we should adjudicate its claims

based on the 2000 Record of Decision fails.
26

IV. Conclusion

In short, the Bureau considered a reasonable range of

alternatives in the EIS addressing the proposal to expand

natural gas development in the PAPA. That EIS sufficiently

addressed the proposed action’s impact on hunting in the

PAPA. The record supports the Bureau’s determination that

the 2008 Record of Decision will prevent unnecessary or

undue degradation of the PAPA. Finally, TRCP’s claims

based on the Bureau’s alleged non-enforcement of the 2000

Record of Decision are moot. The judgment of the district

court is affirmed.