Page 1 of 31

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

POWDER RIVER BASIN 

RESOURCE COUNCIL, et. al.,

)

)

Plaintiffs, )

)

v. ) Case No. 22-cv-2696 (TSC)

)

U.S. DEPT OF INTERIOR, et al., )

)

Defendants. )

)

MEMORANDUM OPINION

Plaintiffs Powder River Basin Resource Council (“Resource Council”) and Western 

Watersheds Project (“Western Watersheds”) seek to stop certain federally approved oil drilling 

in Wyoming’s Powder River Basin, as well as the approval of any additional drilling, claiming

that Defendants United States Department of the Interior (“Interior”) and Bureau of Land 

Management (“BLM”) failed to follow statutorily mandated procedures meant to protect against, 

or at least mitigate, environmental harm.

On December 23, 2020, Interior approved the development of the Converse County Oil 

and Gas Project (“Converse County Project”), authorizing 5,000 new oil wells on over 1.5 

million acres of federal, private, and Wyoming-owned land in the Powder River Basin, subject to 

subsequent drilling permit approvals. Five days later, on December 28, 2020, BLM approved the 

first of 407 separate drilling permits that are challenged in this action, the last of which was 

approved on November 28, 2022. See Am. Compl., ECF No. 44 at 37, 70. Plaintiffs filed this 

action, seeking declaratory and injunctive relief, on September 7, 2022. 
Page 2 of 31

Plaintiffs allege that Interior’s initial approval of the project violated (i) the National 

Environmental Policy Act (“NEPA”), for failing to take a “hard look” at relevant environmental 

issues, (ii) the Federal Land Policy and Management Act (“FLPMA”), for failing to protect 

greater sage-grouse and prevent undue degradation to raptors and their habitats, and (iii) the 

Mineral Leasing Act (“MLA”) and FLPMA for failing to mitigate certain air pollutants. They 

also claim that each of the 407 separately approved Applications for Permits to Drill (“APDs”)

violate (i) FLPMA with respect to greater sage-grouse and raptors, (ii) MLA and FLPMA with 

respect to air pollutants and for failing to regulate certain types of drilling wells, and (iii) NEPA,

for failing to submit environmental impact statements. 

On March 13, 2023, the parties filed a flurry of motions, including Plaintiffs’ Motion for 

Preliminary Injunction, ECF No. 64; Private-Intervenors’ Joint Motion to Transfer, ECF No. 66;

and Private-Intervenors’ Joint Motion to Dismiss, ECF No. 67. On July 14, 2023, the court held 

oral argument on Plaintiffs’ preliminary injunction motion and the standing arguments presented 

in Private-Intervenors’ Joint Motion to Dismiss. 

Having considered the parties’ briefing, their presentations at oral argument, and the 

record, the court will GRANT in part Private-Intervenor’s Joint Motion to Dismiss; DENY

Private-Intervenors’ Joint Motion to Transfer; and DENY Plaintiffs’ Motion for Preliminary 

Injunction.

I. BACKGROUND 

A. The Parties 

Plaintiff Resource Council is a Wyoming-based conservation group with approximately 

1,000 members, the “majority of whom reside locally within the Powder River Basin.” ECF 

No. 44 ¶ 13. Its mission is “working for responsible oil and gas development, addressing the 

impacts of fossil fuel development on rural people and communities, and working for the 
Page 3 of 31

preservation and enrichment of Wyoming’s agricultural heritage and the responsible use of land, 

mineral, water, and air resources.” Id. It alleges that the Converse County Project will “directly 

affect” its members “who depend on the region for its recreational opportunities, and for some, 

their livelihoods.” Id. 

Plaintiff Western Watersheds is a non-profit organization headquartered in Hailey, Idaho. 

Its mission is “protecting and restoring western watersheds and wildlife through education, 

public policy initiatives, and litigation.” Id. ¶ 14. It has “over 12,000 members and supporters . . 

. who live, work, and recreate in Wyoming lands that will be impacted by the Converse County

Project.” Id.

Defendants Interior and BLM are statutorily responsible for managing the nation’s 

federal lands. Id. ¶¶ 20–21.

Defendant-Intervenors are Continental Resources, Inc. (“Continental”), Devon Energy 

Production Company L.P. (“Devon”), Petroleum Association of Wyoming, Anschutz 

Exploration Corp. (“Anschutz”), and the State of Wyoming. See Min. Order, Dec. 30, 2022; 

Min. Order, Jan. 17, 2023. Devon, Continental, and Anschutz are oil and natural gas exploration 

and production companies, who collectively hold 179 of the APDs that Plaintiffs seek to 

terminate. See Byram Decl., ECF No. 20-3 ¶¶ 3, 16; Cozyris Decl., ECF No. 20-8 ¶¶ 3, 11; 

DeDominic Decl., ECF No. 47-1 ¶¶ 2, 6. Petroleum Association of Wyoming is a petroleum 

industry trade association, and twelve of its members hold 355 of the APDs that Plaintiffs seek to 

terminate. See Obermueller Decl., ECF No. 31-1 ¶¶ 2, 5. The State of Wyoming manages or 

owns seven percent or 101,012 surface acres of the Converse County Project area. See Pls.’ 

Ex. 7, ECF No. 64-9 at PIR-0147. 
Page 4 of 31

B. Legal Framework 

i. FLPMA

FLPMA requires BLM to manage public lands “in a manner which recognizes the 

Nation’s need for domestic sources of minerals, food, timber, and fiber from the public lands,” 

43 U.S.C. § 1701(a)(12), “under principles of multiple use and sustained yield” unless otherwise 

directed by law, id. § 1732(a). FLPMA defines “public lands” as “any land and interest in land 

owned by the United States” and administered by the Secretary of the Interior through the BLM, 

id. § 1702(e), such as federal surface lands and federal mineral estate. On one hand, the multiple 

use principle requires BLM to balance “various competing uses of land,” such as “‘recreation, 

range, timber minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific 

and historical values’” in order “to optimally manage the land.” Theodore Roosevelt 

Conservation P’ship v. Salazar, 616 F.3d 497, 504 (D.C. Cir. 2010) (quoting 43 U.S.C. 

§ 1702(c)). On the other hand, the sustained yield principle “requires BLM to control depleting 

uses over time, so as to ensure a high level of valuable uses in the future.’” Id. (quoting Norton 

v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004) (citing 43 U.S.C. § 1702(h))). 

Under FLPMA, BLM must “develop, maintain, and, when appropriate, revise land use 

plans,” 43 U.S.C. § 1712(a), also known as “resource management plans” (“RMPs”). As 

relevant here, BLM is authorized to issue leases and permits, and is also required to “take any 

action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. 

§ 1732(b). 

ii. MLA

MLA, 30 U.S.C. §§ 181, et seq., directs the Secretary of the Interior to offer federal oil 

and gas resources for leasing and development, and grants the agency broad authority to 

“regulate all surface-disturbing activities conducted pursuant to any lease issued under [the 
Page 5 of 31

MLA]” and “determine reclamation and other actions as required in the interest of conservation 

of surface resources.” Id. § 226(a), (g); see also 43 C.F.R. §§ 3100, et seq., §§ 3160, et seq.,

§§ 3170, et seq. (Interior’s regulations implementing statutory authority to regulate oil and gas 

leasing). 

iii. NEPA

NEPA requires agencies to prepare a “detailed statement” of the environmental impact of 

“major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. 

§ 4332(C). If an action could have significant environmental impacts, the agency must 

ordinarily prepare an Environmental Impact Statement (“EIS”) that analyzes such impacts and 

identifies reasonable alternatives to avoid or minimize them. Id.; 40 C.F.R. § 1502.1 (1979, 

2021). There are several scenarios, however, that do not require an EIS: (i) the agency 

determines that the “proposed action will not have a significant impact on the environment,” 40 

C.F.R. § 1501.5(a) (2021); see 40 C.F.R. § 1508.9(2) (1979); (ii) the action falls within certain 

“categories of actions that normally do not have a significant effect on the human environment,” 

40 C.F.R. § 1501.4(a) (2021); and (iii) the agency determines that an existing environmental 

analysis “adequately assesses the environmental effects of the proposed action and reasonable 

alternatives,” 43 C.F.R. § 46.120(c). 

In the oil and gas context, Onshore Order No. 1 provides for the submission of a Master 

Development Plan to facilitate development and NEPA review of similar APDs. See 72 Fed. 

Reg. 10308, 10335 (2007) (“After the Master Development Plan is approved, subsequent APDs 

can reference the Master Development Plan and be approved using the NEPA analysis for the 

Master Development Plan, absent substantial deviation from the Master Development Plan 

previously analyzed or significant new information relevant to environmental effects.”).
Page 6 of 31

iv. BLM Land Use Approval Process 

BLM employs a three-stage decision-making process for managing oil and gas leasing 

and development on federal land: (i) land use planning, (ii) leasing, and (iii) drilling. Each stage 

culminates in a separate agency decision.

In the land use planning stage, a BLM field office issues an RMP assessing the resources 

in a specific geographic area. 43 C.F.R. § 1601.0-5(n). The RMP determines which portions of 

the planning area will be open to oil and gas leasing, and under what conditions. 43 U.S.C. 

§ 1712(a). 

In the leasing stage, BLM identifies parcels eligible for leasing and holds a competitive 

lease sale. 43 C.F.R. §§ 3120.1-3, 3120.5-1, 3120.5-3. An oil and gas lease confers “the right to 

use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and 

dispose of all the leased resource in a leasehold,” id. § 3101.1-2, subject to any stipulations 

attached to the lease, id. § 3101.1-3. 

Finally, after a lease is issued, a leaseholder must apply to BLM for an APD to drill for 

oil and gas on the leased land. Id. § 3162.3-1(c). An APD is required whenever a leaseholder 

seeks to produce minerals from the leased federal mineral estate—regardless of whether the 

surface facilities are located on federal lands. Id.; see id. § 9239.0-7 (defining as unlawful 

trespass the unauthorized extraction of federal minerals under the jurisdiction of the Department 

of the Interior). BLM may condition APD approval on the lessee’s adoption of “reasonable 

measures,” delimited by the lease and the lessee’s surface use rights, to mitigate the drilling's 

environmental impacts. Id. § 3101.1-2. Before approving an APD, BLM must confirm that the 

APD complies with the RMP, see id. § 1610.5-3. 
Page 7 of 31

v. Fee/Fee/Fed Wells

Fee/Fee/Fed wells are “wells that are drilled on non-federal surface overlying non-federal 

mineral estate that drill horizontally into leased federal minerals.” ECF No. 44 ¶ 58. 

On June 12, 2018, the BLM Deputy Director of Policy and Programs issued Permanent 

Instruction Memorandum 2018-014 (“PIM 2018-014”) establishing policies and procedures for 

processing Fee/Fee/Fed APDs. ECF No. 64-17. PIM 2018-014 provides guidance on how to 

analyze APDs for three common Fee/Fee/Fed scenarios: (i) an APD will be located on a preexisting well pad without resulting in new surface disturbance, (ii) an APD will be located on a 

pre-existing well pad but additional surface disturbance is anticipated because of development of 

the federal minerals (e.g., to expand the size of the well pad), and (iii) an APD proposes 

development of a new well pad. 

C. The Converse County Project 

In December 2007, BLM approved the Casper RMP, identifying oil and gas development 

as allowable public uses on approximately 8.5 million acres of land in most of Natrona County 

and all of Converse, Platte, and Goshen counties in east central Wyoming. Defs.’ Ex. 2, ECF 

No. 83-2 at 1-1. In December 2013, a group of energy companies submitted a proposed 

development plan to BLM to conduct drilling operations within the Converse County Project 

area. See Pls.’ Ex. 6, ECF No. 64-8 at PIR-0004. 

On January 26, 2018, BLM issued a Draft EIS evaluating the proposed Converse County 

Project and a land-use-plan amendment to the Casper RMP, and Plaintiffs submitted comments 

on the Draft EIS. See 83 Fed. Reg. 3767 (2018). On August 10, 2020, BLM issued the final 

EIS. ECF No. 44 ¶¶ 61, 63; see also 85 Fed. Reg. 46, 171 (2020). 

The final EIS examined three alternatives to the Converse County Project proposal: 

(A) no action alternative allowing no new drilling; (B) authorization of 5,000 new wells on 1,500 
Page 8 of 31

new well pads over ten years, subject to APD analysis and approval; and (C) requiring 

“additional mitigation measures such as water recycling and clustering of wells to reduce surface 

disturbance.” ECF No. 64-9 at PIR-0091. 

On December 23, 2020, the Secretary of Interior signed the Converse County Record of 

Decision, selecting Alternative B and authorizing the Casper RMP Amendment. ECF No. 44 

¶ 65. While the Record of Decision did not approve any APDs, as of April 3, 2023, BLM has 

approved sixteen federal APDs, 148 split estate APDs, and 322 Fee/Fee/Fed APDs. See Defs.’ 

Ex. 1, ECF No. 83-1 ¶ 4.

II. LEGAL STANDARDS

A. Rule 12(b)(1) Motion for Lack of Subject Matter Jurisdiction

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss 

an action or claims for lack of subject matter jurisdiction. In considering the motion, “the Court 

must accept the allegations of the complaint as true and must construe ‘the complaint in the light 

most favorable to the non-moving party,’” Ctr. for Biological Diversity v. Regan, 597 

F. Supp. 3d 173, 189 (D.D.C. 2022) (citation omitted), but the court does not assume the truth of 

legal conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Further, “‘the plaintiff’s 

factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ 

than in resolving a 12(b)(6) motion for failure to state a claim,” Grand Lodge of Fraternal Ord. 

of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001) (quotation marks and citation 

omitted), and a “court may consider materials outside the pleadings” to decide the motion, 

Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). To survive a Rule 

12(b)(1) motion the plaintiff must establish that the court has subject matter jurisdiction as to 

each claim. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
Page 9 of 31

B. Motion to Transfer

“For the convenience of parties and witnesses, in the interest of justice, a district court 

may transfer any civil action to any other district or division where it might have been brought.” 

28 U.S.C. § 1404(a). “Even if a plaintiff has brought a case in a proper venue, a district court 

may transfer it to another district.” Def. Servs., Inc. v. Mayorkas, No. 21-cv-1314, 2022 WL 

910335, at *2 (D.D.C. Mar. 29, 2022). Courts use a two-step test to determine if a case should 

be transferred: whether (1) the action “might have been brought” in the movant’s choice of 

forum, and (2) the private and public “interest factors” that weigh in favor of or against transfer. 

Ctr. for Env’t Sci., Accuracy & Reliability v. Nat’l Park Serv., 75 F. Supp. 3d 353, 356 (D.D.C. 

2014). The movant bears the burden of demonstrating that transfer is proper. Def. Servs., Inc., 

2022 WL 910335, at *2. 

C. Motion for Preliminary Injunction 

A preliminary injunction is an “extraordinary and drastic” remedy that is “never awarded 

as of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008). A movant must demonstrate (i) a 

likelihood of success on the merits, (ii) a likelihood of irreparable harm absent injunctive relief, 

(iii) that the balance of equities tips in their favor, and (iv) that an injunction is in the public 

interest. Winter v. Nat. Res. Def. Councils, Inc., 555 U.S. 7, 20 (2008). Because “a preliminary

injunction is an extraordinary and drastic remedy,” the court should not grant one “unless the 

movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 

968, 972 (1997) (citation omitted) (emphasis in original).

Courts in this Circuit have typically applied a “sliding-scale” approach in analyzing these 

four factors, whereby a particularly strong showing in one factor could outweigh weakness in 

another. Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011); see also Changji Esquel 
Page 10 of 31

Textile Co. v. Raimondo, 40 F.4th 716, 726 (D.C. Cir. 2022) (explaining that the Circuit has yet 

to revisit the validity of the sliding scale approach following the Supreme Court’s decision in 

Winter). Still, the movant bears the burden of showing that “all four factors, taken together, 

weigh in favor of the injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) 

(quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)). To 

satisfy its burden, a movant may rely on “evidence that is less complete than in a trial on the 

merits” so long as it is “credible.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 173 (D.D.C. 2015) 

(internal citations omitted).

III. ANALYSIS

A. Plaintiffs’ Standing 

Before deciding a preliminary injunction motion the court must first determine whether it 

has jurisdiction. See Aamer v. Obama, 742 F.3d 1023, 1028, 1038 (D.C. Cir. 2014).

An “essential and unchanging part of the case-or-controversy requirement” is that a

plaintiff must establish Article III standing to sue in federal court. Lujan, 504 U.S. at 560. To 

have standing, a plaintiff must plead (i) an “injury in fact,” that is (ii) “fairly traceable to the 

challenged action of the defendant, and not the result of the independent action of some third 

party not before the court,” and (iii) can “likely” be “redressed by a favorable decision.” Id. at 

560–61 (cleaned up).

When alleging a procedural violation, a plaintiff cannot allege injury based simply on a 

general interest “common to all members of the public.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 

658, 664 (D.C. Cir. 1996) (en banc) (citation omitted). Rather, the alleged procedural injury 

must “be tethered to some concrete interest adversely affected by the procedural deprivation.” 

WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013). Moreover, a plaintiff “must 

show not only that the defendant’s acts omitted some procedural requirement, but also that it is 
Page 11 of 31

substantially probable that the procedural breach will cause the essential injury to the plaintiff’s 

own interest.” Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 479 (D.C. 

Cir. 2009) (emphasis added; citation omitted); Summers v. Earth Island Inst., 555 U.S. 488, 496

(2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the 

deprivation—a procedural right in vacuo—is insufficient to create Article III standing.”).

Because these “are not mere pleading requirements but rather an indispensable part of the 

plaintiff’s case, each element must be supported in the same way as any other matter on which 

the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at 

the successive stages of the litigation.” Lujan, 504 U.S. at 561 (citations omitted). These 

requirements apply regardless of whether an organization asserts standing to sue in its own right 

or on behalf of its members. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378 (1982). 

And because “standing is not dispensed in gross, . . . a plaintiff must demonstrate standing for 

each claim [that they] press and for each form of relief” that they seek. Town of Chester v. Laroe 

Ests., Inc., 581 U.S. 433, 439 (2017) (quotation marks and citations omitted).

An association may assert standing on behalf of its members by alleging that “its 

members, or any one of them, are suffering immediate or threatened injury as a result of the 

challenged action.” Warth v. Seldin, 422 U.S. 490, 511 (1975). To satisfy the constitutional 

standing requirement, an association must show that: “(a) its members would otherwise have 

standing to sue in their own right; (b) the interests it seeks to protect are germane to the 

organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit.” United Food and Com. Workers Union 

Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash. State Apple 

Advert. Comm’n, 432 U.S. 333, 343 (1977)); see Fund Democracy, LLC v. SEC, 278 F.3d 21, 25 
Page 12 of 31

(D.C. Cir. 2002). Moreover, the organization must show that “at least one specifically-identified 

member has suffered an injury-in-fact . . . [i]t is not enough to show . . . there is a substantial 

likelihood that at least one member may have suffered an injury-in-fact,” rather, “the identity of 

the party suffering an injury in fact must be firmly established.” Am. Chemistry Council v. Dep’t 

of Transp., 468 F.3d 810, 820 (D.C. Cir. 2006). 

Defendant-Intervenors argue that Plaintiffs lack standing for all their claims, ECF No. 67 

at 5, and all Defendants contend that Plaintiffs lack standing to pursue their APD claims but do 

not join Defendant-Intervenor’s argument that Plaintiffs lack standing to challenge the Converse 

County Record of Decision, ECF No. 86 at 1–2. Plaintiffs respond that they have associational 

standing to sue on behalf of their members who would otherwise have standing to sue in their 

own right. See Pls.’ Opp’n re ECF No. 67, ECF No. 81 at 3–16. 

i. Standing for APD-Related Claims

“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use 

the affected area and are persons ‘for whom the aesthetic and recreational values of the area will 

be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Env’t. Servs., 528 

U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). A plaintiff 

must allege a “concrete and particularized injury which has occurred or is imminent due to 

geographic proximity to the action challenged.” WildEarth Guardians v. Zinke, 368 F. Supp. 3d 

41, 61 (D.D.C. 2019) (quoting City of Olmsted Falls v. FAA, 292 F.3d 261, 267 (D.C. Cir. 2002)) 

(emphasis omitted). 

Here, Plaintiffs lack standing to pursue their APD claims because they have not alleged 

an affected area for any of the APDs they challenge, and therefore have not alleged that any of 

their members use the affected areas such that enjoining the APDs would provide the relief they 

seek. At most, Plaintiffs allege that their members “reside locally within the Powder River 
Page 13 of 31

Basin,” ECF No. 44 ¶ 13, that they “visit and recreate on . . . public lands,” id. ¶ 16, and that the 

entire Project will contribute to “air pollution, noise pollution, water pollution, visual disruptions, 

and general disturbance,” id. ¶ 17. These allegations are supported by their members’ 

declarations. See, e.g., Katherman Decl., ECF No. 64-4 ¶¶ 5, 8, 12–14 (averring that she lives in 

the project area, that her frequent use of Highway 93 will be more dangerous because of 

increased truck traffic, and air and light pollution will negatively impact her view of Laramie 

Mountain). But the declarations do not allege that Plaintiffs’ members use an area affected by 

any challenged APD. Although Plaintiffs’ motion for preliminary injunction and supporting 

exhibits total more than 5,000 pages, they have not specified any particular APD or any

surrounding area affected by any pollutants traceable to any particular APD (air, noise, water, 

visual etc.). Nor have Plaintiffs specified that any of their members use (recreate, live in, travel 

through, visit) any such area. 

Plaintiffs do not challenge the standard as the court has articulated it, see ECF No. 81 at 

10 (citing Laidlaw, 528 U.S. at 183), but instead argue that the standard is satisfied because 

“[t]he types of injuries that Plaintiffs allege here—decreased air quality, water pollution and 

drawdowns, viewshed disruptions, traffic hazards on major arteries, and wildlife impacts—will 

extend far beyond each wellsite, as will the roads, pipelines, powerlines, trucks, equipment, and 

workers required to support them.” Id. In their view, the court should assume that the affected 

area for every APD is indeterminably “vast,” id. This assumption is valid, they argue, because 

their members live and travel in the project area and it is “substantially likely they will be injured 

from each” of the over 400 APDs which have indeterminably vast affected areas. Id. But

Plaintiffs do not allege, in their Amended Complaint or in their declarations, that the affected 

area of every APD is “vast;” tellingly, they do not cite to the record in support of this argument. 
Page 14 of 31

At oral argument, the court asked Plaintiffs to indicate where in their Amended Complaint or 

member declarations they alleged affected areas for the APDs. They responded that the APDs 

collectively contribute to a vast affected area which can be gleaned from Defendants’ 

environmental analysis in their final EIS. This is insufficient to establish standing.

Plaintiffs contend that three cases support their argument: Diné Citizens Against Ruining 

Our Environment v. Bernhardt, 923 F.3d 831 (10th Cir. 2019) (Diné); Zinke, 368 F. Supp. 3d 41; 

and Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996). See ECF No. 81 at 

10–12.

In Diné, the Tenth Circuit held that environmental groups had established injury in fact to 

support standing to challenge more than 300 APDs in the Mancos Shale area of the San Juan 

Basin in northeastern New Mexico because the group members had “a geographical nexus to and 

actually use the land in the allegedly affected area.” 923 F.3d at 841–43. In that case, plaintiffs’ 

members averred to “visit[ing] hundreds of well sites” and described affected areas that they 

noticed during their visits. Id. at 842. The Court was satisfied that members had (i) declared that 

they had and would continue to visit “specific areas [that] will be affected by oil and gas 

drilling,” (ii) attached maps to their declarations “show[ing] the proximity of existing and new 

wells” to their areas of recreation, and (iii) alleged that the “affected area extends beyond the 

boundaries of the well sites and into the greater Chaco landscape.” Id. at 843.

In Zinke, plaintiffs similarly challenged federally approved oil and gas leases in 

Wyoming. The Court found that plaintiffs had standing because their members had averred that 

the affected area for drilling rigs extended “up to a hundred miles away.” 368 F. Supp. 3d at 62 

(citation omitted).
Page 15 of 31

Unlike the plaintiffs in Diné and Zinke, however, Plaintiffs here do not identify a single 

well site, drilling location, or APD in their member declarations. “[T]o establish standing 

plaintiffs must show that they ‘use the area affected by the challenged activity and not an area 

roughly in the vicinity of’ the project site.” Summers, 555 U.S. at 499 (citation omitted); Friends 

of the Earth, Bluewater Network Div. v. U.S. Dep’t of Interior, 478 F. Supp. 2d 11, 21 (D.D.C. 

2007) (“[W]here site-specific agency action is involved, . . . standing must be established at to 

specific locations.”). Plaintiffs have not demonstrated as much with respect to the challenged 

APDs. 

Indeed, had Plaintiffs challenged a single APD, they would have had to allege (i) the 

general location of a well site operating pursuant to an APD, (ii) an area affected by activities 

occurring at the well site, and (iii) that at least one of their members makes use of that area. 

Although Plaintiffs challenge over 400 agency actions, the bar to allege standing as to these 

APDs is not insurmountable. Despite amending their complaint and submitting member 

declarations in support of their motion for preliminary injunction, Plaintiffs’ allegations do not 

specify any APD, an area affected by its pollutants, or their members’ use of that area. 

Accordingly, the court does not have subject matter jurisdiction over Plaintiffs’ APD 

claims in Counts II, III, IV, V, and VI, and they will be dismissed. 

ii. Standing on Record of Decision Related Claims

On the other hand, the court is satisfied that Plaintiffs have established standing as to 

their Record of Decision claims in Counts I, III, IV, and VI. Plaintiffs’ members allege that they 

regularly visit or live in the Converse County Project Area, which is subject to oil and gas 

development because of the Record of Decision. See, e.g., ECF No. 64-4 ¶¶ 2–3, 5 (Maria 

Katherman declaring that she is a Resource Council member and lives in the Converse County 

Project Area); ECF No. 64-3 ¶¶ 2–3, 8, 10 (Shannon Anderson averring that he is a Resource 
Page 16 of 31

Council member and staff attorney who takes “regular field trips to the project area” as part of 

his work and intends to “return in the months and years to come”). Plaintiffs’ members also 

claim they will suffer concrete harms from drilling in the project area. See, e.g., ECF No. 64-4

¶ 21 (Katherman Declaration stating that “temporary water pipelines and plastic-lined ‘ponds’” 

will cause water waste and contaminate her drinking water). These allegations are sufficient to 

demonstrate injury in fact because the declarants aver that “they use the affected area and are 

persons for whom the aesthetic and recreational values of the area will be lessened by the 

challenged activity.” Laidlaw, 528 U.S. at 183 (quotation marks and citation omitted). 

The aesthetic and recreational injuries that Plaintiffs’ members claim they will suffer also 

satisfy the two remaining elements of standing: the injuries are “fairly traceable” to BLM’s 

allegedly deficient procedures, and they would “be redressed by a favorable decision.” Lujan, 

504 U.S. at 560–61 (citations omitted). In environmental procedural-injury cases, an “adequate 

causal chain” contains two links: “one connecting the omitted EIS to some substantive 

government decision that may have been wrongly decided because of the lack of an [adequate] 

EIS,” and “one connecting that substantive decision to the plaintiff's particularized injury.” Fla. 

Audubon Soc’y, 94 F.3d at 668. Here, Plaintiffs claim that BLM’s failure to discharge its NEPA, 

FLPMA, and MLA obligations led directly to the issuance of the Record of Decision, authorizing

the oil and gas development causing Plaintiffs’ injuries. Indeed, Defendants conceded at oral 

argument that if the court were to vacate the Record of Decision—authorizing BLM to approve 

APDs in the Converse County Project Area—for violating NEPA, FLPMA, and MLA, Plaintiffs’ 

members’ injuries would be redressed, and the remedies they seek would be available. See Oral 

Arg. Tr., ECF No. 99 at 17:23–18:09.
Page 17 of 31

B. Transfer 

This court “may transfer any civil action to any other district or division where it might 

have been brought” in the first instance “for the convenience of parties and witnesses” and “in 

the interest of justice.” 28 U.S.C. § 1404(a). When a defendant is a federal agency, venue is 

proper in any judicial district where (i) “a defendant in the action resides;” (ii) “a substantial part 

of the events or omissions giving rise to the claim occurred, or a substantial part of property that 

is subject of the action is situated;” or (iii) a “plaintiff resides if no real property is involved in 

the action.” 28 U.S.C. § 1391(e)(1). If an action could have been brought in the movant’s 

chosen forum, the court then considers six private interest factors—

(1) the plaintiff’s choice of forum, unless the balance of convenience is strongly 

in favor of the defendants; 

(2) the defendant’s choice of forum; 

(3) whether the claim arose elsewhere; 

(4) the convenience of the parties; 

(5) the convenience of the witnesses of the plaintiff and defendant, but only to 

the extent that the witnesses may actually be unavailable for trial in one of the 

fora; and 

(6) the ease of access to sources of proof—

and three additional public interest factors: “(1) the transferee’s familiarity with the governing 

laws; (2) the relative congestion of the calendars of the potential transferee and transferor courts; 

and (3) the local interest in deciding local controversies at home.” Trout Unlimited v. U.S. Dep’t 

of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996).

Here, Private Intervenors barely addressed the issue of whether venue is proper in the 

District of Wyoming. See Def.-Int.’s Joint Mot. to Transfer, ECF Nos. 66, 68 at 3–4 (devoting 

two short paragraphs to venue). Moreover, because the court will dismiss Plaintiffs’ APDrelated claims for lack of subject matter jurisdiction, it is unclear whether this case could even

have been brought in the District of Wyoming. Further, Private-Intervenors’ motion to transfer 

this action to the District of Wyoming primarily focuses on their own convenience in defending 
Page 18 of 31

against Plaintiffs’ challenges to the APDs they hold. But since the court will dismiss Plaintiffs’ 

APD claims, Private-Intervenors’ legal interest in this case is reduced. Indeed, the remining 

claims are procedural challenges to an ROD that was signed in Washington D.C.—likely 

requiring few, if any witnesses and relying primarily on the administrative record.

In sum, Private-Intervenors have not satisfied their burden to demonstrate that this action 

might have been brought in the District of Wyoming or to show that the private interest and 

public interest factors weight in their favor, and consequently, their motion to transfer will be 

denied. 

C. Preliminary Injunction 

Because the court will dismiss Plaintiffs’ APD claims, it need only address the motion for 

preliminary injunction on their Record of Decision claims.

i. Likelihood of Success on the Merits 

Plaintiffs confined their argument on the likelihood of success on the merits to a subset of 

their claims, see ECF No. 64-1 at 15 n.3, and because the court will dismiss their APD claims, 

the court’s analysis also is appropriately limited. 

First, Plaintiffs argue that they are likely to succeed on their Sixth Claim challenging 

BLM’s argument that they do not have legal authority to require air pollution mitigation. 

Plaintiffs contend that Defendants’ failure to require certain “air quality mitigation measures” 

when approving the Converse County Record of Decision was arbitrary and capricious because 

the decision (i) wrongly concluded that BLM lacked authority to require such measures, and 

(ii) was an unexplained departure from past agency practice. ECF No. 64-1 at 24–25. At this 

stage, Plaintiffs have not demonstrated a likelihood of success on this claim. 

The Administrative Procedures Act (“APA”) requires a reviewing court to “set aside 

agency action . . . found to be . . . arbitrary, capricious . . . or otherwise not in accordance with 
Page 19 of 31

law.” 5 U.S.C. § 706 (2)(A). The review must be “highly deferential” and begins with a 

presumption that the agency’s actions are valid. Env’t. Def. Fund, Inc. v. Costle, 657 F.2d 275, 

283 (D.C. Cir. 1981). The court considers only “whether the agency acted within the scope of its 

legal authority, whether the agency has explained its decision, whether the facts on which the 

agency purports to have relied have some basis in the record, and whether the agency considered 

the relevant factors.” Fulbright v. McHugh, 67 F. Supp. 3d 81, 89 (D.D.C. 2014) (quoting Fund 

for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). Here, Plaintiffs essentially argue 

that Defendants did not follow the law and failed to provide a reasoned explanation for their 

departure from past agency practice.

Defendants’ opposition is grounded in the Constitution’s Property Clause, which states 

that “Congress shall have Power to dispose of and make all needful Rules and Regulations 

respecting the Territory or other Property belonging to the United States.” U.S. Const. art. IV, 

§ 3, cl. 2. The Property Clause allows Congress to exercise plenary power over federal lands and 

“is broad enough to reach beyond territorial limits.” Kleppe v. New Mexico, 426 U.S. 529, 538 

(1976); see also United States v. Lindsey, 595 F.2d 5, 6 (9th Cir. 1979) (recognizing that the 

United States may “regulate conduct on non-federal land when reasonably necessary to protect 

adjacent federal property or navigable waters”).

Under MLA, the Secretary of the Interior has broad congressionally delegated authority 

“to prescribe necessary and proper rules and regulations and to do any and all things necessary to 

carry out and accomplish” the promotion and protection of federal minerals. 30 U.S.C. § 189; 

see also Cal. Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir. 1961) (“The Secretary ... has a 

responsibility to [e]nsure that these resources are not physically wasted and that their extraction 

accords with prudent principles of conservation.”). The Secretary is empowered to “regulate all 
Page 20 of 31

surface-disturbing activities conducted pursuant to any lease issued under [MLA].” 30 U.S.C. 

§ 226(g).

When Defendants issued the 2020 Converse County Record of Decision, the decision

identified fourteen air quality mitigation measures that had been “recommended” during public 

comment on the draft EIS, but which BLM found were “unlikely” to be implemented because it 

did “not have authority to require the application of [those] measures.” ECF No. 64-9 at PIR0678, PIR 0684–87; see ECF No. 64-8 at PIR-0055–56. 

Plaintiffs argue that “[r]equiring air quality mitigation measures such as engine 

requirements, dust abatement, and facilities consolidation . . . falls squarely within BLM’s MLA 

authority,” ECF No. 64-1 at 27, and FLPMA provides further statutory support for BLM to 

impose air quality mitigation measures for non-federal land extraction, id. at 26 (citing 43 U.S.C. 

§§ 1701(a)(8), 1712(c)(8), 1732(b)). Defendants agree that MLA “provides broad discretion to 

the Secretary in regulating surface-disturbing activities,” but argue that “like many statutes [it] 

leaves it to the discretion of the Secretary to strike the right balance.” Defs.’ Opp’n re ECF 

No. 64, ECF No. 83 at 17. The issue before the court then is whether MLA requires Defendants 

to impose air quality mitigation measures on drill operators who extract federal minerals by 

drilling into non-federal lands.

Although MLA and FLPMA grant Defendants broad authority, they do not appear to 

mandate these regulations on non-federal lands. Plaintiffs have cited no legal authority 

supporting that contention, and the law is clear that “an agency may justify its policy choice by 

explaining why that policy ‘is more consistent with statutory language’ than alternative policies.” 

Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 223–24 (2016) (quoting Long Island Care at 

Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (internal quotation marks omitted)).
Page 21 of 31

In 2018, BLM issued its Permanent Instruction Memorandum, titled “Directional Drilling 

into Federal Mineral Estate from Well Pads on Non‐Federal Locations” (“PIM 2018-014”), in 

which it interpreted MLA as granting it authority to apply two types of regulations to operations 

on non-federal lands: regulations governing “downhole” activities or operations (e.g., well 

drilling, casing, cementing, verification, testing, reporting, and plugging), and regulations 

relating to production accountability (i.e., those that prevent waste or loss of federal oil and gas 

and ensure accurate measuring and collecting of royalties). See Pls.’ Ex. 15, ECF No. 64-17. 

BLM explained however, that its “regulatory jurisdiction is limited,” and it must “carefully 

examine” its regulations that affect non-federal lands. Id. at PIR-4664. It contends that FLPMA 

and MLA do not provide it with authority “to require mitigation of surface disturbances on nonFederal lands.” Id. at PIR-4670.

When an agency changes its “existing polic[y],” it must “provide a reasoned explanation 

for the change,” Encino Motorcars, 579 U.S. at 221, and it must “at least display[] awareness 

that it is changing position and showing that there are good reasons for the new policy.” Gentiva 

Health Servs., Inc. v. Becerra, 31 F.4th 766, 780 (D.C. Cir. 2022) (quoting Encino Motorcars, 

579 U.S. at 221) (cleaned up). The record indicates that the 2020 Converse County Record of 

Decision is consistent with past agency policy. Indeed, Defendants explained their lack of 

authority to impose the regulations on non-federal lands in its 2018 memorandum, two years 

before the Converse County Record of Decision. ECF No. 64-17 at PIR 4670–71.

Plaintiffs further argue that the Record of Decision is inconsistent with two previous 

Records of Decisions—the Normally Pressured Lance (“NPL”) gas project and the Jonah Infill 

Drilling Project. ECF No. 64-1 at 27. They claim that the NPL project included “specific dust 

abatement requirements; multi-well pads and operations consolidation to reduce dust and other 
Page 22 of 31

impacts from vehicle travel; waste capture and recovery; and use of Tier 3 drill rig engines, 

electric compression engines, and solar powered equipment to reduce impacts to air quality;” and

the Jonah Infill Drilling Project “imposed a variety of air quality-related mitigation measures, 

including use of Tier II diesel engines and other requirements to reduce impacts of project air 

emissions.” Id. at 27–28 (citing ECF No. 64-18 at PIR 4728–30, PIR 4795–96). Defendants 

respond that BLM has not “reversed course,” and comparisons to the NPL project are “inapt,” 

because that project “involved different highly deviated slant and directional wells . . . not 

subject to EPA or Wyoming Department Environmental Quality permitting,” and was “almost 

entirely located on BLM-managed land and minerals.” ECF No. 83 at 23–24. Given the highly 

fact-specific nature of these Record of Decision approvals, Plaintiffs have not demonstrated that 

the NPL gas project and the Jonah Infill Drilling Project are appropriate comparators to the 

Converse County Record of Decision.

Accordingly, Plaintiffs have not shown a likelihood of success in establishing that 

Defendants’ disclaimer of statutory authority to impose air quality mitigation measures, in these 

circumstances, is arbitrary and capricious as an erroneous legal interpretation or an unexplained 

departure from past agency practice.

Second, Plaintiffs argue that they will succeed on their NEPA claims because (i) BLM 

did not meaningfully account for the unregulated nature of Fee/Fee/Fed wells in its NEPA 

analysis, and (ii) BLM’s cumulative effects analysis underestimated the scale of other oil and gas 

developments in the Project area and did not quantify the greenhouse gas emissions and 

cumulative climate impacts of other projects in the region. ECF No. 64-1 at 28–36.

NEPA “requires federal agencies . . . to examine and report on the environmental 

consequences of their actions.” New York v. Nuclear Regul. Comm’n, 681 F.3d 471, 476 (D.C. 
Page 23 of 31

Cir. 2012). As explained, an agency may comply with NEPA by preparing an EIS that analyzes 

those environmental impacts and identifies a range of reasonable alternatives to avoid or 

minimize such impacts. 42 U.S.C. § 4332(C); accord 40 C.F.R. § 1502.16(a)(1). This “hard 

look” analysis, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989), requires 

an assessment of direct, indirect, and “[c]umulative effects, which are effects on the environment 

that result from the incremental effects of the action when added to the effects of other past, 

present, and reasonably foreseeable actions.” 40 C.F.R. § 1508.1(g)(3); see also WildEarth 

Guardians v. Bernhardt, 502 F. Supp. 3d 237, 247 (D.D.C. 2020) (“[A] NEPA cumulative 

impact analysis must include discussion of ‘other actions—past, present, and proposed, and 

reasonably foreseeable—that have had or are expected to have impacts in the same area,’ ‘the 

impacts or expected impacts from these other actions,’ and ‘the overall impact that can be 

expected if the individual impacts are allowed to accumulate.’” (quoting Grand Canyon Tr. v. 

FAA, 290 F.3d 339, 345 (D.C. Cir. 2002))). In reviewing an agency’s hard look, the “role of the 

courts is simply to ensure that the agency has adequately considered and disclosed the 

environmental impact of its actions and that its decision is not arbitrary or capricious.” Nevada 

v. Dep’t of Energy, 457 F.3d 78, 87–88 (D.C. Cir. 2006) (quoting Marsh v. Or. Natural Res. 

Council, 490 U.S. 360, 376 (1989)).

Plaintiffs contend that Defendants failed to “meaningfully account for Fee/Fee/Fed wells 

in conducting its NEPA analysis” because “many sections of the [EIS] assumed that BLMimposed protections would mitigate adverse effects for the entire project.” ECF No. 64-1 at 28–

29. They claim that BLM assumed that implementation of certain mitigation measures would 

diminish impacts on air quality, the visual landscape, greater sage-grouse, and traffic, even 
Page 24 of 31

though BLM would not require such mitigation measures for Fee/Fee/Fed wells. See id. at 29 

(citing final EIS, App. A at A-24; id. at 4.15–4; id. at 4.18–67; id. at 4.13–7). 

But BLM acknowledged its limited authority to impose certain mitigation measures on 

non-federal land. See, e.g., ECF No. 64-9 at PIR-1075 (“The BLM’s ability to require 

application of mitigation measures is limited by the extent of the agency’s authority as it relates 

to the surface and fluid mineral estate ownership patterns within the CCPA.”). Further, Plaintiffs 

appear to misread the final EIS’ “mitigation and mitigation effectiveness” sections. Closer

scrutiny reveals that BLM, consistent with its regulations, considered the impact of mitigation 

measures irrespective of whether those measures would be imposed. See 43 CFR § 46.130(a)–

(b) (“The analysis of the proposed action and any alternatives must include an analysis of the 

effects of the proposed action or alternative as well as analysis of the effects of any appropriate 

mitigation measures or best management practices that are considered. The mitigation measures 

can be analyzed either as elements of alternatives or in a separate discussion of mitigation. . . . 

The analysis of these mitigation measures can be structured as a matter of consideration of 

alternatives to approving the applicant's proposal or as separate mitigation measures to be 

imposed on any alternative selected for implementation.”). Here, BLM considered the “impacts” 

of the proposed action on identified environmental elements, e.g., ECF No. 64-9 at PIR-0827,

separate from “[m]itigation and [m]itigation [e]ffectiveness,” e.g., id. at PIR-0830.

Plaintiffs also read the “mitigation and mitigation effectiveness” sections to assume 

federal mitigation measures would apply, even though federal mitigation measures do not apply 

to most of the Project’s wells. ECF No. 64-1 at 29; see also ECF No. 91 at 16. Even if Plaintiffs 

are correct, they point to no prohibition against considering the EIS in federal mitigation 
Page 25 of 31

measures if the Project includes Fee/Fee/Fed wells. Nor do Plaintiffs explain how the EIS may 

have been different without assuming typical mitigation measures.

Plaintiffs also argue that BLM’s cumulative-effects analysis is legally erroneous because 

it “grossly misstated the scale of existing and future oil and gas development” in the Project area 

by choosing January 9, 2015 “as an arbitrary cut off-date” for evaluating existing oil projects, 

and then failing to account for 3,854 new wells that started producing in the Project area between 

2016 and 2019. ECF No. 64-1 at 30–31. Defendants respond that the cut-off date was 

“necessary to avoid continual reanalysis,” and reflected “the first full year of available data after 

the completion of scoping in 2014.” ECF No. 83 at 26.

At this stage, Plaintiffs have not shown that Defendants’ reliance on 2015 baseline data 

was unreasonable given that the NEPA analysis began in 2014. See Theodore Roosevelt 

Conservation P’ship v. Salazar, 605 F. Supp. 2d 263, 273 (D.D.C. 2009), aff’d, 616 F.3d 497 

(D.C. Cir. 2010) (holding that use of “outdated data is not arbitrary or capricious” where agency 

had a considered reason for doing so). Moreover, on April 26, 2019, BLM issued a supplemental 

draft EIS, recognizing 1,828 additional wells within the Project area as of March 22, 2019. See 

ECF No. 64-9 at PIR-0151–52; ECF No. 83-4 at ES-2; 40 C.F.R. § 1502.9(d)(1)(ii) (BLM must 

prepare a supplemental EIS when “[t]here are significant new circumstances or information 

relevant to environmental concerns and bearing on the proposed action or its impacts”). Thus, 

Plaintiffs’ argument that BLM arbitrarily cut off consideration of existing wells based on 2015 

data is unavailing.

In addition, Plaintiffs have not shown that Defendants’ cumulative effects analysis is 

deficient for failure to account for approximately 2,000 additional wells or 3,8554 unaccounted 

horizontal wells based on Wyoming Oil and Gas Conservation Commission (“WOGCC”) data 
Page 26 of 31

that Plaintiffs referenced in their comment to the draft EIS. See ECF No. 64-1 at 31 (citing Pls.’ 

Ex. 9, ECF No. 64-11 at PIR-1809–10, PIR-1827–2394). Defendants were required to “assess 

the impact the [Converse County Project] will have in conjunction with other projects in the 

same and surrounding areas . . . and must include past, present, and reasonably foreseeable future 

actions of any agency or person.” WildEarth Guardians v. Bureau of Land Mgmt., 8 F. Supp. 3d 

17, 31 (D.D.C. 2014) (quoting Theodore Roosevelt Conservation P’ship, 616 F.3d at 503). In 

response to Plaintiffs’ comment on the draft EIS, Defendants explained that Plaintiffs’

interpretation of WOGCC data was incorrect because “not all of these . . . APDs resulted in wells 

that have been drilled, will be drilled, or are within the portions of Converse or Campbell 

counties that fall within the cumulative impact study area. The analysis conducted for this EIS 

was based on this same WOGCC data, which was then filtered for these parameters.” Pls.’ 

Ex. 8, ECF No. 64-10 at PIR-1615. Wyoming has since reviewed its data in response to this 

motion and submits that commenters “erroneously applied WOGCC data,” as shown by the 

listing of duplicate wells and the inclusion of wells drilled as early as 1974. Wyoming’s Opp’n 

re ECF No. 64, ECF No. 77 at 34–36 (citing Kropatsch Decl., ECF No. 77-1 ¶ 28). 

Plaintiffs also argue that BLM’s cumulative effects analysis was deficient because it

failed to quantify greenhouse gas emissions from “other projects in the region,” either “in 

isolation or when added to the Converse County Project,” and instead “simply compared” the 

Converse County Project emissions to existing emission levels, which cannot “serve as the 

quantification of cumulative greenhouse emissions since they predated the Project by many 

years, failing to account for projects that had come online in recent years.” ECF No. 64-1 at 35

(quotation marks and internal citations omitted). They further assert that BLM did not “capture[]
Page 27 of 31

future wells” in its statewide and nationwide emissions quantifications. Pls.’ Reply re ECF 

No. 64, ECF No. 91 at 18–19.

The final EIS, however, shows that BLM quantified and disclosed emissions from: (i) all 

existing wells in the Casper Field Office area as of 2014, (ii) all existing oil and gas systems on 

federal land in Wyoming in 2014, (iii) all future emissions from 1,300 non-Project wells in all 

Wyoming BLM Field Office areas, (iv) all oil and gas systems on all lands in Wyoming as of 

2018 (which includes the future wells BLM predicted would come online after 2015), and (v) all 

oil and gas development in the country as of 2017 (also accounting for post-2015 wells). See 

ECF No. 64-9 at PIR-1020–21. BLM also compared estimated direct and indirect emissions for 

Alternatives A and B, listing each Project’s emissions as a percentage of local, state, and national 

emission levels. Id.

In their motion and Amended Complaint, Plaintiffs did not identify specific projects—

past, present, or reasonably foreseeable—that BLM failed to analyze. In their reply, they 

contend that BLM excluded “every single future project outlined in Table 5.2-1,” ECF No. 91 at 

18 (citing ECF No. 64-9 at PIR-1002, PIR-1020), but they presented no evidence to support that 

contention. Table 5.2-1 is a list of additional well pads and associated facilities that would be 

developed under Alternative A, as well as other “past, present, and reasonably foreseeable oil 

and gas activity” in the larger cumulative impact study area. ECF No. 64-9 at PIR-1001.1 In 

1 “Under Alternative A, an additional 386 well pads and 26 associated facilities remain to be 

developed within the [Project area] . . . . Table 5.2-1 provides a list of these and other past, 

present, and reasonably foreseeable oil and gas activity in the larger general [cumulative impact 

study area] for the proposed Project. The projects listed as reasonably foreseeable include those 

for which NEPA decision documents are anticipated or in process but have not yet been 

completed, excluding the proposed Project. These projects also are displayed on Figure 5.2-1.

Table 5.2-1 also provides information on the five gas plants within the [Project area] associated 

with existing oil and gas production as of December 31, 2015.”
Page 28 of 31

Table 5.3-7, BLM compared direct, indirect, and total greenhouse gas emissions under 

Alternative A and B. ECF No. 64-9 at PIR-1020. Plaintiffs have not demonstrated, through 

argument or evidence, that BLM’s comparative cumulative effects analysis in Table 5.3-7 failed

to account for the emissions identified in Table 5.2-1. Nor is such a failure apparent when 

reviewing the tables. 

Consequently, at this stage of the litigation, Plaintiffs have not demonstrated a likelihood 

of success on the merits on any of their claims. 

ii. Likelihood of Irreparable Harm 

To demonstrate irreparable harm, a movant for a preliminary injunction must show that 

the harm is (i) “certain and great, actual and not theoretical, and so imminent that there is a clear 

and present need for equitable relief to prevent irreparable harm,” and (ii) “beyond remediation.” 

League of Women Voters of U.S. v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016) (cleaned up). The 

movant must also “substantiate the claim that irreparable injury is ‘likely’ to occur” by providing 

“proof indicating that the harm is certain to occur in the near future.” Wis. Gas Co. v. FERC, 

758 F.2d 669, 674 (D.C. Cir. 1985). “[T]he degree of proof required for ‘irreparable harm’ is 

‘high,’ and . . . failure to surmount it provides ‘grounds for refusing to issue a preliminary 

injunction, even if the other three factors entering the calculus merit such relief.’” Olu-Cole v. 

E.L. Haynes Pub. Charter Sch., 930 F.3d 519, 529 (D.C. Cir. 2019) (quoting Chaplaincy of Full 

Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). 

Plaintiffs argue that their members’ ability to “live, work, and recreate” in the Project 

area “will [be] irreparably impair[ed]” if drilling in the Project area is permitted to move 

forward. ECF No. 64-1 at 39. They further argue that “[u]nless enjoined, a significant portion of 

the Project will be constructed before a merits decision is reached, polluting the air they breathe, 

threatening their water supplies, destroying the landscape’s natural character, generating noise 
Page 29 of 31

and light pollution, and decreasing opportunities for wildlife viewing, quiet solitude, and 

recreation.” Id. In support, they rely on BLM’s final EIS, in which BLM acknowledged a 

plethora of potential environmental harms to air quality, wildlife populations, outdoor recreation, 

and noise in the Project area and surrounding areas. See ECF No. 64-1 at 40 (citing ECF No. 64-

9). In addition, five of Plaintiffs’ members aver that they live in or regularly visit the Project 

area for recreation or work, that they enjoy many activities such as hiking, wildlife viewing, 

spiritual renewal, and solitude, and that Defendants’ approval of drilling activities will 

irreparably harm them due to loss of recreational opportunities, scarcity of wildlife, noise 

pollution, air pollution, and so forth. See ECF No. 64-3 ¶¶ 8–16; ECF No. 64-4 ¶¶ 2, 3, 5, 7–22; 

ECF No. 64-5 ¶¶ 3–5, 8, 12, 18, 19; ECF No. 64-6 ¶¶ 12, 19–26; ECF No. 64-7 ¶¶ 6, 8–14.

But Plaintiffs have failed to allege, with any specificity, when these alleged irreparable

harms will occur. They ignore language in the final EIS explaining that many of these impacts 

are temporary or subject to mitigation, and therefore not irreparable. See, e.g., ECF No. 64-9 at 

PIR-0701 (observing that “indirect effects such as visual disturbances from well pad construction 

and temporary pipelines could be avoided over the long term if their causes are removed”). At 

oral argument, when asked about the paucity of their irreparable harm analysis, Plaintiffs argued 

that their members’ declarations show that they are already being harmed from increased traffic 

and dust due to ongoing construction from the Project. But this type of harm is not beyond 

remediation. See W. Ala. Quality of Life Coal. v. U.S. Fed. Highway Admin., 302 F. Supp. 2d 

672, 684 (S.D. Tex. 2004) (finding temporary increased traffic and associated air impacts were 

not irreparable harm).

Plaintiffs have not alleged that they will suffer imminent and irreparable harm to their 

enjoyment of recreational or aesthetic activities on federal land—or that Katherman will suffer 
Page 30 of 31

such harm on her own land. They rely mainly on the final EIS, but merely pointing to “any 

potential environmental injury” is not enough to establish irreparable harm on a motion for a 

preliminary injunction. Earth Island Inst. v. Carlton, 626 F.3d 462, 474 (9th Cir. 2010).

Further, a balance of the equities weighs against granting preliminary injunctive relief 

because Plaintiffs waited nearly 21 months after Defendants issued the Converse County Record 

of Decision to bring this suit. At oral argument, Plaintiffs admitted that they knew that

Defendants had issued the Record of Decision, and that they had commented on the final EIS as 

well as many of the subsequently approved APDs. But they claimed that they lacked the 

financial and human capital—apparently for nearly two years—to initiate this suit. Even after 

they filed suit, however, Plaintiffs waited more than six months to move for a preliminary 

injunction, see ECF No. 64, and subsequently sought an eleven-day extension to file their reply 

due to a conflict with their counsel’s planned two-week leave, see ECF No. 76. “These 

unexplained delays in seeking emergency relief undermine their contention that they will be 

irreparably harmed absent an injunction.” W. Watersheds Project v. Bernhardt, 468 F. Supp. 3d 

29, 50 (D.D.C. 2020) (citing Newdow v. Bush, 355 F. Supp. 2d 265, 292 (D.D.C. 2005)).

III. CONCLUSION

For the reasons explained, the court will DENY Plaintiffs’ Motion for a Preliminary 

Injunction; DENY Private-Intervenor’s Motion to Transfer; and GRANT in part PrivateIntervenors’ Motion to Dismiss.

Three corresponding Orders will accompany this Opinion.
Page 31 of 31

Date: November 6, 2023 

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge