FILED

United States Court of Appeals

Tenth Circuit

July 8, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WILDERNESS WORKSHOP; HIGH

COUNTRY CITIZENS’ ALLIANCE;

WESTERN COLORADO

CONGRESS; WESTERN SLOPE

ENVIRONMENTAL RESOURCE

COUNCIL; CENTER FOR

BIOLOGICAL DIVERSITY; BOARD

OF COUNTY COMMISSIONERS

FOR PITKIN COUNTY,

Plaintiffs-Appellants,

v. No. 08-1165

UNITED STATES BUREAU OF

LAND MANAGEMENT; UNITED

STATES FOREST SERVICE,

Defendants-Appellees.

SG INTERESTS I, LTD.,

Defendant-Intervenor-Appellee.

---------------------

COLORADO OIL AND GAS

ASSOCIATION; CONGRESS OF

RACIAL EQUALITY; HAROLD

SHEPHERD,

Amici Curiae.
2

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 1:08-cv-00462-REB-MEH)

Robin Cooley, Earthjustice Legal Defense Fund, Denver, Colorado, (Andrew

Evans Hartsig, Earthjustice Legal Defense Fund, Denver, Colorado; Christopher

G. Seldin, Pitkin County Attorney’s Office, Aspen, Colorado, with her on the

brief), for Plaintiffs-Appellants.

Aaron P. Avila, Environment & Natural Resources Division, (Ronald J. Tenpas,

Assistant Attorney General, with him on the brief), United States Department of

Justice, Washington, D.C., for Defendants-Appellees.

L. Poe Leggette, Fulbright & Jaworski L.L.P., (Nancy L. Pell and David Y.

Chung, Fulbright & Jaworski L.L.P., Washington, D.C., with him on the brief),

Denver, Colorado, for S.G. Interests I, Ltd., Defendant-Intervenor-Appellee.

William G. Myers III, Holland & Hart LLP, Boise, Idaho, filed an amicus curiae

brief for the Colorado Oil and Gas Association.

Donald I. Schultz, Schultz & Belcher LLP, Cheyenne, Wyoming, filed an amicus

curiae brief for the Congress of Racial Equality.

Harold Shepherd, Pro Se, Moab, Utah, filed an amicus curiae brief on his own

behalf.

Before BRISCOE, McCONNELL, and TYMKOVICH, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs Wilderness Workshop, High Country Citizens’ Alliance, Western

Colorado Congress, Western Slope Environmental Resource Council, Center for

Biological Diversity, and Board of County Commissioners for Pitkin County
3

(Colorado) filed suit challenging a decision by defendants, the United States

Bureau of Land Management (BLM) and the United States Forest Service (Forest

Service), authorizing defendant/intervenor SG Interests I, Ltd. (SG) to construct,

operate, and maintain a natural gas pipeline through roadless national forest land. 

In connection with their suit, plaintiffs sought and were denied a preliminary

injunction by the district court. Plaintiffs have now filed an interlocutory appeal

from the district court’s order denying their motion for preliminary injunction. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a), we affirm.

I.

In June 2004, SG and its authorized agent, Trigon EPC, sought

authorization from the BLM “to construct, operate, and maintain a natural gas

pipeline and related facilities on public lands administered by the BLM,” and

“National Forest System . . . lands.” App. at 749. The proposed pipeline,

referred to as the Bull Mountain Pipeline, “would accommodate anticipated

natural gas production from the Bull Mountain Unit in addition to future

‘common carrier’ . . . capacity needs that could arise from other existing leased

production areas.” Id. More specifically, the proposed project would “involve

the installation [of] approximately 25.5 miles (approximately 5.5 miles on private

land) of 20-inch diameter buried steel natural gas pipeline and related

aboveground appurtenances for the purpose of transporting natural gas from the

Bull Mountain Unit to the existing Divide Creek Compressor Station for delivery
4

into interstate natural gas pipeline systems and the national energy market.” Id.

at 750. The proposed project “would also involve the connected action of

construction and operation of a four-acre compressor station, natural gas

processing facility and associated facilities on private land at the southern end of

the pipeline.” Id. at 751. 

In response to SG’s application, the BLM and the Forest Service, via its

White River National Forest and Grand Mesa-Uncompahgre and Gunnison

National Forests management officials, engaged in a lengthy period of

environmental analysis “to analyze and disclose the potential environmental

consequences of granting the proposed authorization[] . . . and a range of

reasonable alternatives including a No Action alternative.” Id. at 750. The

agencies’ environmental analysis culminated in the issuance of a final

environmental impact statement (FEIS) on November 16, 2007. 

Less than two months thereafter, on January 8, 2008, the BLM and the

Forest Service issued a Record of Decision (ROD) authorizing the issuance of “a

30-year, 50-foot” right-of-way for the Bull Mountain Pipeline, as well as

temporary use permits, to SG. Id. at 750. The 50-foot right-of-way “would be

immediately adjacent to and paralleling existing natural gas pipeline [right-ofways] (Ragged Mountain Pipeline and Rocky Mountain Natural Gas Pipeline) for
1

 “SG would install the . . . proposed pipeline[] generally at the edge of any

existing pipeline [right-of-ways] using a standard 25-foot offset from the center

of the existing pipelines which would result in a 10-foot [right-of-way] overlap

where the proposed pipeline follows existing pipelines.” App. at 152-53.

2

 Thus, it appears that 2.67 miles of the proposed Bull Mountain Pipeline

would fall within IRAs in which there is no preexisting pipeline right-of-way. 

App. at 152.

3

 We note that none of these permits authorized such activity within an

IRA.

5

approximately 10 miles of the total . . . 25.5 mile route.”1

 Id. at 87. “Of the 10

miles paralleling the existing pipeline [right-of-ways], 7.7 miles would be on

[National Forest System] lands and 2.3 miles on private lands.” Id. “The

proposed [right-of-way] would pass through a total of 8.33 miles of Inventoried

Roadless Areas (IRAs) on [National Forest Service] lands.” Id. at 152. 

“Approximately 5.66 miles of the 8.33 miles . . . within . . . IRAs would follow . .

. the Ragged Mountain Pipeline.”2

 Id. The temporary use permits issued for the

Bull Mountain Pipeline included a “construction [right-of-way] of approximately

100 feet (50 feet additional to permanent [right-of-way]).” Id. at 81. As part of

the ROD, the Forest Service also “authorize[d] road use permits for construction,

reconstruction, use, upgrade, and/or maintenance of [Forest Service] and/or

temporary roads needed for access to the pipeline construction [right-of-way].”3

Id. at 750. “Surface disturbance during . . . pipeline construction is estimated to

be 390 acres . . . .” Id. at 81.

According to the record on appeal, the Bull Mountain Pipeline will be
6

constructed over a three-year period, with construction activities occurring only

between May 1 and October 1 of each year. After construction is completed, the

100-foot construction right-of-way will be rehabilitated and revegetated. 

However, trees will not be allowed to regrow in the pipeline’s permanent 50-foot

right-of-way. As for activity on the right-of-way, “[s]urface patrols w[ill] be

conducted by pedestrian surveys or horseback as no motorized vehicles w[ill] be

allowed on the pipeline [right-of-way] for normal surface patrols.” Id. at 150. 

“Motorized vehicles w[ill] only be authorized on a case-by-case basis in order to

access the right-of-way for emergency repair needs with notification provided to

[the Forest Service] and/or BLM prior to access.” Id.

On March 5, 2008, plaintiffs filed this action alleging that the ROD

violates: (1) the Forest Service’s 2001 Roadless Area Conservation Rule

(Roadless Rule), 66 Fed. Reg. 3272-73 (Jan. 12, 2001); and (2) the National

Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f. In

connection with their complaint, plaintiffs sought a preliminary injunction

preventing SG from beginning construction of the pipeline. On April 30, 2008,

the district court denied plaintiffs’ motion for preliminary injunction. Plaintiffs

have now filed an interlocutory appeal seeking review of the district court’s

denial of their motion for preliminary injunction.
7

II.

Standard of review

We review the district court’s denial of plaintiffs’ motion for preliminary

injunction for abuse of discretion. See Utah Licensed Beverage Ass’n v. Leavitt,

256 F.3d 1061, 1065 (10th Cir. 2001). “An abuse of discretion occurs only when

the trial court bases its decision on an erroneous conclusion of law or where there

is no rational basis in the evidence for the ruling.” Id. (internal quotation marks

omitted).

“To obtain a preliminary injunction, the movant must show: (1) a

substantial likelihood of success on the merits; (2) irreparable harm to the movant

if the injunction is denied; (3) the threatened injury outweighs the harms that the

preliminary injunction may cause the opposing party; and (4) the injunction, if

issued, will not adversely affect the public interest.” Gen. Motors Corp. v. Urban

Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). “[B]ecause a preliminary

injunction is an extraordinary remedy, the [movant’s] right to relief must be clear

and unequivocal.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356

F.3d 1256, 1260 (10th Cir. 2004) (internal quotation marks omitted).

Substantial likelihood of success

In analyzing the “substantial likelihood of success” factor, we must,

because neither the Roadless Rule nor NEPA provide for a private right of action,

review the defendants’ approval of the Bull Mountain Pipeline as a final agency
8

action under the Administrative Procedures Act (APA). Utah Envtl. Cong. v.

Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007). Under that standard, we will not

overturn the defendants’ decision unless it is arbitrary, capricious, an abuse of

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

“An agency’s decision will be deemed arbitrary and capricious if the agency . . .

entirely failed to consider an important aspect of the problem, 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.” Troyer, 479 F.3d at 1280 (internal quotation marks

omitted). “Likewise, an agency’s decision will be deemed arbitrary and

capricious if the agency failed to base its decision on consideration of the relevant

factors, or if there has been a clear error of judgment on the agency’s part.” Id.

(internal quotation marks omitted).

1) The alleged Roadless Rule violation

Plaintiffs claim that the defendants’ authorization of the Bull Mountain

Pipeline project violated the Forest Service’s Roadless Rule. In Wyoming v. U.S.

Department of Agriculture, 414 F.3d 1207 (10th Cir. 2005), we summarized the

background of the Roadless Rule:

 In October 1999, at the direction of President Clinton, the Forest

Service initiated a public rulemaking process designed to protect the

remaining roadless areas within the National Forest System. See

Notice of Intent to Prepare an Environmental Impact Statement, 64

Fed. Reg. 56,306 (Oct. 19, 1999). The proposed rule and Draft
4

 The Roadless Rule was “[a]lmost immediately . . . embroiled in

litigation.” Wyoming, 414 F.3d at 1211 (citing Kootenai Tribe v. Veneman, 313

F.3d 1094, 1126 (9th Cir. 2002) (reversing preliminary injunction that prohibited

implementation of the Roadless Rule)). As a result of this litigation, the Roadless

Rule did not actually go into effect until April 2003. California ex rel. Lockyer v.

U.S. Dep’t of Agric., 459 F. Supp. 2d 874, 881 (N.D. Cal. 2006). Shortly

thereafter, however, a federal district court in Wyoming issued a nationwide

permanent injunction against the Roadless Rule. Wyoming v. U.S. Dep’t of

Agric., 277 F. Supp. 2d 1197 (D. Wyo. 2003). In 2005, after we heard oral

argument in the appeal of the Wyoming district court’s ruling, the Forest Service

revoked the Roadless Rule and replaced it with the State Petitions for Inventoried

Roadless Area Management Rule (State Petitions Rule), 70 Fed. Reg. 25,654

(May 13, 2005). Lockyer, 459 F. Supp. 2d at 881. However, in 2006, a federal

district court in California concluded that the State Petitions Rule was invalid

because it “was adopted without environmental analysis under NEPA or

consultation under ESA about potentially affected endangered or threatened

species.” Id. As a remedy, that court “reinstate[d] the . . . Roadless Rule.” Id. at

916.

9

Environmental Impact Statement (“DEIS”) were published in early

May 2000. See Notice of Proposed Rulemaking, 65 Fed. Reg. 30,276

(May 10, 2000). Public comments were received until July 17, 2000,

and thereafter the Final Environmental Impact Statement (“FEIS”)

was published in November 2000. In January 2001 the Forest

Service announced the adoption of the Roadless Rule, which

prohibited road construction, reconstruction, and timber harvest in

inventoried roadless areas located on National Forest System lands

unless an exception applied. 36 C.F.R. § 294.12(a)-(b) (2001).

[footnote omitted] The Rule affected approximately 58.5 million

acres (or thirty-one percent) of the National Forest System lands . . .

.

Id. at 1210-11.4

 

The Roadless Rule includes the following prohibition on road construction

in IRAs within a national forest:

(a) A road may not be constructed . . . in inventoried roadless areas

of the National Forest System, except as provided in paragraph (b) of
10

this section.

(b) Notwithstanding the prohibition in paragraph (a) of this section, a

road may be constructed . . . in an inventoried roadless area if the

Responsible Official determines that one of the following

circumstances exist:

(1) A road is needed to protect public health and safety in

cases of an imminent threat of flood, fire, or other catastrophic

event that, without intervention, would cause the loss of life or

property;

(2) A road is needed to conduct a response action under the

Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA) or to conduct a natural resource

restoration action under CERCLA, Section 311 of the Clean

Water Act, or the Oil Pollution Act.

66 Fed. Reg. 3272 (originally at 36 C.F.R. § 294.12).

As a reading of this regulatory prohibition makes clear, its application

hinges on the following definitions found in the Roadless Rule:

Inventoried roadless areas. Areas identified in a set of inventoried

roadless area maps, contained in Forest Service Roadless Area

Conservation, Final Environmental Impact Statement, Volume 2,

dated November 2000, which are held at the National headquarters

office of the Forest Service, or any subsequent update or revision of

those maps.

* * *

Road. A motor vehicle travelway over 50 inches wide, unless

designated and managed as a trail. A road may be classified,

unclassified, or temporary.

(1) Classified road. A road wholly or partially within or adjacent to

National Forest System lands that is determined to be needed for

long-term motor vehicle access, including State roads, county roads,

privately owned roads, National Forest System roads, and other roads
11

authorized by the Forest Service.

(2) Unclassified road. A road on National Forest System lands that

is not managed as part of the forest transportation system, such as

unplanned roads, abandoned travelways, and off-road vehicle tracks

that have not been designated and managed as a trail; and those roads

that were once under permit or other authorization and were not

decommissioned upon the termination of the authorization.

(3) Temporary road. A road authorized by contract, permit, lease,

other written authorization, or emergency operation, not intended to

be part of the forest transportation system and not necessary for longterm resource management.

Road construction. Activity that results in the addition of forest

classified or temporary road miles.

66 Fed. Reg. 3272 (originally at 36 C.F.R. § 294.11).

Defendants, in issuing the ROD in this case, concluded there would be no

violation of the Roadless Rule because the proposed pipeline could “be built

within IRA’s without road construction.” App. at 754. In support of this

conclusion, the ROD stated as follows:

The area of surface disturbance that will occur to clear the right-ofway, dig a trench, bring pipe to the site, lower the pipeline into the

trench, backfill and bury the pipeline, recontour the surface, and

revegetate disturbed soil:

• Will not be used as a motor vehicle travelway . . . . The sole reason

for creating surface disturbance, which within the IRA’s will be

limited to the confines of the construction right-of-way, will be for

the purpose of accommodating motorized equipment needed to

construct and bring in the supplies needed to install the pipeline.

• Will not result in the addition of forest classified or temporary road

miles.
12

• Is a “construction zone”, not a “road”, as disclosed in Section 3.10

of the FEIS. Motorized equipment needed to clear the right-of-way,

install the pipeline, bury it, and reclaim and revegetate disturbed

areas within IRA’s will access the construction right-of-way within

the IRA’s via existing roads located outside of the IRA’s. When

construction/reclamation equipment is located within the boundaries

of an IRA, it will be confined to existing roads and to the

construction zone within the designated right-of-way.

Id. at 755.

Plaintiffs claim in their suit that the defendants’ conclusion was “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). The district court, in denying plaintiffs’ motion for

preliminary injunction, concluded that plaintiffs failed to establish that they had a

substantial likelihood of succeeding on the merits of this claim. More

specifically, the district court concluded:

Certainly there is room for debate about whether or not certain

aspects of the pipeline right of way might fall within the roadless

rule’s definition of the term “road” during construction of the

pipeline. Here, the BLM and the Forest Service considered the

roadless rule and concluded that construction of the pipeline will not

result in the addition of road miles in the roadless areas. As a

reviewing court, I must give the agencies’ interpretation of the

roadless rule due deference, and I may reject that interpretation only

if it is “unreasonable, plainly erroneous, or inconsistent with the

regulation’s plain meaning.” Bar MK Ranches v. Yeutter, 994 F.2d

735, 738 (10th Cir. 1993) (citation omitted).

App. at 1033. For the reasons that follow, we conclude the district court did not

abuse its discretion in reaching this determination.

As we have noted, the Roadless Rule defines the term “road” as “[a] motor
13

vehicle travelway over 50 inches wide, unless designated and managed as a trail.” 

66 Fed. Reg. 3272. The key term in this definition, “travelway,” is not defined in

the Roadless Rule, nor does it appear to have any commonly accepted meaning,

since it is not found in any contemporary dictionaries that we are aware of. Even

assuming, as asserted by plaintiffs, that the term is synonymous with “route” or

“path,” we conclude it is ambiguous because it is reasonably “‘capable of being

understood in two or more possible senses or ways.’” Chickasaw Nation v.

United States, 534 U.S. 84, 90 (2001) (quoting Webster’s Ninth New Collegiate

Dictionary 77 (1985)). For example, the term could be, as suggested by plaintiffs,

interpreted broadly as referring to any area over which a motor vehicle can move

from one point to another, regardless of the overall purpose of the area or the

purpose of the vehicular activity. Alternatively, the term could be interpreted

more narrowly as referring to an area whose exclusive purpose is for motor

vehicle through-traffic, rather than the localized use of motorized equipment

ancillary to an altogether different, and non-prohibited, purpose. 

Although the ROD does not include a detailed analysis or discussion of the

definitional language of the Roadless Rule, it is apparent from the analysis

contained therein that defendants chose to adopt a more narrow definition of the

term “travelway.” In particular, defendants effectively interpreted the term

“travelway” as excluding “construction zones,” such as the 100-foot right-of-way

necessary in this case for installation of the Bull Mountain Pipeline. Defendants’
5

 We emphasize that the defendants’ interpretation does not provide the

Forest Service with limitless discretion to grant easements for motor vehicle

travel that would undermine the purpose of the Roadless Rule. The grant must be

made primarily for a permitted purpose other than the movement of motor

vehicles, such that any use of the easement for such movement is merely

collateral.

14

interpretation is entitled to deference. See Auer v. Robbins, 519 U.S. 452, 463

(1997) (noting that an agency has “power to resolve ambiguities in [its] own

regulations”); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)

(noting that a reviewing court “must give substantial deference to an agency’s

interpretation of its own regulations”).

Nothing in the record before us or in the parties’ pleadings persuades us

that plaintiffs can successfully overcome this deference. To begin with,

defendants and SG have aptly noted that defendants’ interpretation is consistent

with two provisions of the Roadless Rule’s preamble. The first such provision

expressly distinguishes between wilderness areas and IRAs and states that IRAs

can reasonably be used for “a multitude of activities including motorized uses,

grazing, and oil and gas development.” 66 Fed. Reg. 3249. This statement

clearly favors defendants’ decision to interpret the term “travelway” as excluding

construction zones necessary for oil and gas development.5

 The second provision

of the preamble indicates that the Roadless Rule was adopted, in part, because of

“budget constraints” that were making it impossible for the Forest Service to

manage “the existing forest road system . . . to the safety and environmental
6

 According to the record on appeal, the IRAs at issue were apparently

considered, and ultimately rejected, for designation as wilderness areas.

15

standards to which it was built.” Id. at 3244. This statement likewise favors

defendants’ interpretation because nothing in the record suggests that

“construction zones,” at least those necessary for oil and gas development, would

ever be considered part of the forest road system. Thus, the authorization of such

construction zones will not burden the Forest Service’s road maintenance budget. 

Lastly, defendants have noted, without serious dispute from plaintiffs, that they

have applied the same interpretation of the term “travelway” in a prior case, i.e.,

concluding that construction zones do not qualify as “roads” under the Roadless

Rule.6

 See Hammond v. Norton, 370 F. Supp. 2d 226, 262 (D.D.C. 2005) (“The

Forest Service appears to interpret the term ‘motor vehicle travelway’ in the

regulatory definition of a ‘road’ not to include the construction zones

contemplated here, despite the acknowledged presence of motorized vehicles in

the area.”).

In sum, we conclude the district court did not abuse its discretion in

determining that plaintiffs failed to establish a substantial likelihood of success

on their Roadless Rule claim. 

2) The alleged NEPA violation

Plaintiffs also allege they are entitled to preliminary injunctive relief on the

basis of their complaint’s second claim for relief, which alleges that defendants,
7

 In the proposed scheduling order that has been filed by the parties in

district court, plaintiffs now also claim that defendants failed to “consider

adequately the environmental effects of future gas development as an indirect or

cumulative impact of the Bull Mountain pipeline.” Parties’ Proposed Scheduling

Order at 4. Notably, however, plaintiffs did not assert these arguments in their

motion for preliminary injunction. Thus, it is unnecessary for us to consider them

in the context of this appeal.

8

 NEPA’s implementing regulations also require federal agencies to

(continued...)

16

in issuing their ROD, violated NEPA by failing to “consider the impacts of future

natural gas development [i.e., the installation of additional gas wells] as a

connected action.” Parties’ Proposed Scheduling Order at 4.7

 

NEPA “requires federal agencies to examine and disclose the

environmental impacts of their proposed actions” in the form of an environmental

impact statement (EIS). Utah Envtl. Cong. v. Richmond, 483 F.3d 1127, 1133

(10th Cir. 2007). Relevant to this case, NEPA’s implementing regulations require

federal agencies, in conducting such examinations, to take into consideration

“connected actions.” 40 C.F.R. §1508.25(a)(1). “Actions are [deemed to be]

connected [for purposes of NEPA] if they”:

(i) Automatically trigger other actions which may require

environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken

previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the

larger action for their justification.

Id. § 1508.25(a)(1)(i)-(iii).8

 
8

(...continued)

consider the “cumulative impact” of proposed actions. “Cumulative impact is the

impact on the environment which results from the incremental impact of the

action when added to other past, present, and reasonably foreseeable future

actions regardless of what agency (federal or non-federal) or person undertakes

such other actions.” 40 C.F.R. § 1508.7. In addition, federal agencies must

consider the direct and indirect effects that will be caused by a proposed action. 

40 C.F.R. § 1508.8. As previously noted, these considerations are not before us

in this appeal.

17

“The purpose of this requirement is to prevent an agency from dividing a

project into multiple actions, each of which individually has an insignificant

environmental impact, but which collectively have a substantial impact.” Great

Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006) (internal

quotation marks omitted). Reviewing courts “apply an ‘independent utility’ test

to determine whether multiple actions are so connected as to mandate

consideration in a single EIS.” Id.; see Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152, 1183 (10th Cir. 2002) (noting that this circuit applies the

“independent utility” test). “The crux of the test is whether each of two projects

would have taken place with or without the other and thus had independent

utility.” Great Basin, 456 F.3d at 969 (internal quotation marks omitted); see

Utahns for Better Transp., 305 F.3d at 1183 (“An inquiry into independent utility

reveals whether the project is indeed a separate project, justifying the

consideration of the environmental effects of that project alone.”).

“It is important to note that ‘projects’, for the purposes of NEPA, are

described as ‘proposed actions’, or proposals in which action is imminent.” 
18

O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 236 (5th Cir. 2007) (citing

40 C.F.R. § 1508.23). “[T]he mere contemplation of certain action is not

sufficient to require an impact statement.” Id. (internal quotation marks omitted). 

“While a cumulative impact analysis requires the [reviewing agency] to include

‘reasonably foreseeable’ future actions in its review, improper segmentation is

usually concerned with projects that have reached the proposal stage.” Id.

In this case, the defendants concluded in their FEIS, in response to public

comments, that it was unnecessary to analyze potential natural gas well

development as a “connected action”:

[SG] notes that their development of the Bull MT lease unit may

result in 55-60 [natural gas] wells over 10 years. Those estimates are

speculative and are dependent on market conditions and other

factors. This information is best addressed as potential foreseeable

actions in the [cumulative effects] analysis. The direct action is the

installation of the pipeline. The connected action that would have to

happen for use of a new pipeline is the installation of the Compressor

site on private ground. The # of wells that would result on the Bull

MT lease unit or on other leases in the larger area is entirely

speculative in nature.

App. at 620.

To the extent possible, [we] have included for the purposes of

cumulative effects analysis the number of wells that could reasonably

be serviced by the Bull Mountain pipeline. Although the presence of

the Bull Mountain pipeline would create a situation in which the area

is more attractive for natural gas production operations, there are no

assurances that other leases in the area would be developed by

drilling. Projecting number of wells based on amount of leased

acreage is not meaningful because development of specific lease

holds depends on gas price and demand, among many other variables. 

Thus, there are too many variables to predict future activities with
9

 The district court did note, however, that defendants’ “air quality analysis

. . include[d] an analysis of potential development of gas wells that would be

served by the pipeline.” App. at 1034. In particular, the district court noted,

defendants took into account in their air quality analysis the fact that SG’s plan of

development envisioned the drilling of 55 to 60 new gas wells over a ten to

twelve year period. Id.

19

any certainty. . . . To the extent feasible to facilitate cumulative

effects analysis, [we] have projected the number of wells that may be

serviced by the [Bull Mountain Natural Gas Pipeline] . . . .

The scope of cumulative error analysis was carefully considered and

it is unreasonable to expect the EIS to include the analysis of impact

associated with speculative oil and gas development. Further, we

believe that an increasing nationwide demand for natural gas is the

primary driving force behind the growing level of exploration and

development in the Rocky Mountain region during the last several

years. Additional infrastructure to transport the gas into the

interstate pipeline grid is a result, not a cause, of development.

Id. at 663.

The district court, in denying plaintiffs’ motion for preliminary injunction,

acknowledged that defendants “did not consider development of new gas wells

that would be facilitated by the pipeline as connected actions.” App. at 1034. 

Rather, the district court noted, “[t]he only actions explicitly considered [by

defendants] as connected actions . . . [we]re compressor stations at the northern

and southern ends of the pipeline.”9

 Id. The district court ultimately concluded,

however, that plaintiffs failed to demonstrate “a substantial likelihood that they

w[ould] succeed on their challenge to the FEIS under the NEPA.” Id. at 1036. In

support of this conclusion, the district court stated as follows:

As with the roadless rule, there is room for debate about application
10 There is some discrepancy in the record on appeal concerning the number

of natural gas wells owned by SG in the Bull Mountain Unit. In particular, the

FEIS refers to SG owning three natural gas wells in the Bull Mountain Unit, App.

at 86, whereas a March 2008 declaration from an officer of SG’s general partner,

Robert H. Guinn, II, states that SG owns nine natural gas wells in the Bull

Mountain Unit. Supp. App. at 3. Notably, however, both of these documents

agree that SG’s existing natural gas wells can produce approximately “8 million

(continued...)

20

of the relevant connected action criteria to anticipated gas well

development. However, I conclude that the current record generally

indicates that the agencies considered the relevant factors and made a

rational determination based on those factors. The pipeline will

transport gas from existing wells and could transport gas from future

wells. The pipeline can exist without future well development,

although that circumstance may be economically unwise. Future

wells can exist without the pipeline. The FEIS considered other

possible pipeline routes, and the agencies noted in the FEIS that gas

from new wells “would find other alternative means of transport from

the area” if the pipeline does not exist. The pipeline will not

automatically trigger additional wells, drilling of additional wells can

proceed without the pipeline, and the pipeline and possible additional

wells are not interdependent; that is, dependent on each other. Under

the applicable definition of connected action, the fact that the

existence of pipeline may encourage additional gas wells, and

probably will serve any additional wells, does not mean necessarily

that additional wells are connected actions. 

Id. at 1036-37.

The district court did not abuse its discretion in reaching this conclusion. 

To begin with, the record on appeal establishes that SG has an immediate purpose

for building the Bull Mountain Pipeline that has nothing to do with future gas

well development. According to SG, it has, to date, “drilled or acquired a total of

thirteen (13) natural gas wells in the Project area,” nine of which “are located in

the Bull Mountain Unit.”10 Supp. App. at 3. Based on its “most recent well
10(...continued)

standard cubic feet per day.” App. at 86; Supp. App. at 3 (same). Thus, the

discrepancy in the record regarding the number of gas wells owned by SG does

not alter our analysis of plaintiffs’ substantial likelihood of success on their

NEPA claim.

21

pressure data, its thirteen wells can produce up to 8 million standard cubic feet of

natural gas each day.” Id. However, SG alleges, it is “currently unable to

transport the majority of that natural gas due to the lack of existing pipeline

capacity in the Project area.” Id. More specifically, SG alleges that “[t]he main

natural gas pipeline in the area is the 6-inch diameter Ragged Mountain Pipeline,”

and that “[b]ecause there is only one compressor for that pipeline, it can currently

transport only about 7 million standard cubic feet of natural gas each day.” Id.

Further, because SG “only has the right to about 3.5 million standard cubic feet of

the Ragged Mountain Pipeline’s capacity,” “several million standard cubic feet of

natural gas are stranded at [SG’s] well sites every day.” Id. Installing the Bull

Mountain Pipeline and using it solely on existing gas wells to transport stranded

gas, SG alleges, will result in a net income stream of 14 million dollars per year. 

In addition, the evidence in the record indicates that installation of the Bull

Mountain Pipeline will allow SG to deliver its natural gas to the national energy

markets, as opposed to only the local markets that are reached by the existing

pipeline. App. at 131-32. Based upon this record evidence, it appears that the

Bull Mountain Pipeline will have independent utility, and thus defendants

reasonably concluded it was proper to consider its environmental impact without
22

further consideration of potential future gas well development.

To be sure, the capacity of the Bull Mountain Pipeline design is much

larger than is necessary to simply serve the existing natural gas wells, and

apparently by SG’s own admission has been designed “to accommodate ‘future

common carrier capacity needs.’” Id. at 66. In particular, the Bull Mountain

Pipeline is expected to initially produce approximately 80 million cubic feet of

gas per day based upon existing gas wells, but is sized to convey up to 375

million cubic feet of gas per day. Id. at 193-94. However, as defendants noted in

the FEIS, the development of additional natural gas wells is entirely speculative

at this point, and will ultimately depend on “gas price and demand, among many

other variables.” Id. at 663. In other words, although SG is undoubtedly

contemplating the development of additional gas wells in the area, nothing in the

record on appeal suggests that such development is imminent. See O’Reilly, 477

F.3d at 236. 

Other preliminary injunction factors

The district court also analyzed the remaining three prongs of the

preliminary injunction test. With respect to the irreparable harm prong, the

district court concluded that plaintiffs “produced evidence that they will suffer

some imminent and irreparable injuries if the pipeline construction begins.” App.

at 1040. As for the balance of harms prong, the district court concluded that the

threatened injury to plaintiffs was equally balanced “against the weight of the
23

public interest in gas production, and [SG’s] demonstrated economic interests,”

and thus “this factor d[id] not weigh heavily in favor of either the plaintiffs or the

defendants.” Id. at 1042. Lastly, the district court concluded “that the public

interest factor d[id] not weigh heavily in favor of either the plaintiffs or the

defendants and [SG].” Id. at 1042-43. We are not persuaded, after reviewing the

record on appeal, that the district court abused its discretion in reaching any of

these conclusions.

The order of the district court denying plaintiffs’ motion for preliminary

injunction is AFFIRMED. The motions of the Colorado Oil and Gas Association,

the Congress of Racial Equality, and Harold Shepherd to file amicus curiae briefs

are GRANTED.