Northern Cheyenne v. Norton ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE NORTHERN CHEYENNE TRIBE, a 
federally recognized Indian tribe;
NATIVE ACTION, a Montana non-
profit corporation,
Plaintiffs-Appellants,
v.
GALE NORTON, Secretary of the
Interior; KATHLEEN CLARKE,
Director, Bureau of Land
Management; MARTIN OTT, No. 05-35408
Montana State Director, Bureau of  D.C. No.
Land Management, CV-03-00078-RWA
Defendants-Appellees,
FIDELITY EXPLORATION AND
PRODUCTION COMPANY; ANADARKO
PETROLEUM CORPORATION; DEVON
ENERGY CORPORATION; POWDER
RIVER GAS LLC; PINNACLE GAS
RESOURCES, INC.,
Defendants-Intervenors-
Appellees.

12153
12154 NORTHERN CHEYENNE v. NORTON
NORTHERN PLAINS RESOURCE 
COUNCIL,
Plaintiff-Appellant,
v.
GALE NORTON, Secretary of the
Interior; KATHLEEN CLARKE,
Director, Bureau of Land
Management; MARTIN OTT,
Montana State Director, Bureau of No. 05-35413
Land Management; UNITED STATES
BUREAU OF LAND MANAGEMENT,
 D.C. No.
CV-03-00069-RWA
Defendants-Appellees,
FIDELITY EXPLORATION AND
PRODUCTION COMPANY; ANADARKO
PETROLEUM CORPORATION; DEVON
ENERGY CORPORATION; POWDER
RIVER GAS LLC; PINNACLE GAS
RESOURCES, INC.,
Defendants-Intervenors-
Appellees.

NORTHERN CHEYENNE v. NORTON 12155
THE NORTHERN CHEYENNE TRIBE, a 
federally recognized Indian tribe;
NATIVE ACTION, a Montana non-
profit corporation; NORTHERN
PLAINS RESOURCE COUNCIL,
Plaintiffs-Appellees,
v.
GALE NORTON, Secretary of the
Interior; KATHLEEN CLARKE,
Director, Bureau of Land No. 05-35540
Management; MARTIN OTT,
Montana State Director, Bureau of  D.C. Nos.
CV-03-00069-RWA
Land Management; UNITED STATES
BUREAU OF LAND MANAGEMENT, NV-03-00078-RWA
Defendants-Appellants,
and
FIDELITY EXPLORATION AND
PRODUCTION COMPANY; ANADARKO
PETROLEUM CORPORATION; DEVON
ENERGY CORPORATION; POWDER
RIVER GAS LLC; PINNACLE GAS
RESOURCES, INC.,
Defendants-Intervenors.

12156 NORTHERN CHEYENNE v. NORTON
THE NORTHERN CHEYENNE TRIBE, a 
federally recognized Indian tribe;
NATIVE ACTION, a Montana non-
profit corporation; NORTHERN
PLAINS RESOURCE COUNCIL,
Plaintiffs-Appellees,
v.
GALE NORTON, Secretary of the
Interior; KATHLEEN CLARKE, No. 05-35586
Director, Bureau of Land
Management; MARTIN OTT,  D.C. Nos.
CV-03-00069-RWA
Montana State Director, Bureau of CV-03-00078-RWA
Land Management; UNITED STATES
BUREAU OF LAND MANAGEMENT,
Defendants,
and
FIDELITY EXPLORATION AND
PRODUCTION COMPANY,
Defendants-Intervenors-
Appellant.

NORTHERN CHEYENNE v. NORTON 12157
THE NORTHERN CHEYENNE TRIBE, a 
federally recognized Indian tribe;
NATIVE ACTION, a Montana non-
profit corporation; NORTHERN
PLAINS RESOURCE COUNCIL,
Plaintiffs-Appellees,
v.
GALE NORTON, Secretary of the
Interior; KATHLEEN CLARKE,
Director, Bureau of Land
Management; MARTIN OTT, No. 05-35587
Montana State Director, Bureau of
Land Management; UNITED STATES
BUREAU OF LAND MANAGEMENT,
 D.C. No.
CV-03-00069-RWA
Defendants, OPINION
FIDELITY EXPLORATION AND
PRODUCTION COMPANY,
Defendant-Intervenor,
and
ANADARKO PETROLEUM
CORPORATION; DEVON ENERGY
CORPORATION; PINNACLE GAS
RESOURCES, INC.,
Defendants-Intervenors-
Appellants.

Appeal from the United States District Court
for the District of Montana
Richard W. Anderson, Magistrate Judge, Presiding
Argued and Submitted
September 15, 2005—Seattle, Washington
Filed September 11, 2007
12158 NORTHERN CHEYENNE v. NORTON
Before: Mary M. Schroeder, Chief Circuit Judge,
Arthur L. Alarcón and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld;
Dissent by Chief Judge Schroeder
12160 NORTHERN CHEYENNE v. NORTON
COUNSEL
Jack R. Tuholske, Tuholske Law Office, PC, Missoula, Mon-
tana, for appellants Northern Plains Resource Council.
John B. Arum (argued) and Brian C. Gruber (briefed), Ziontz,
Chestnut, Varnell, Berley & Slonim, Seattle, Washington, and
Joe A. Rodriguez (briefed), Law Offices of Joe A. Rodriguez,
Lame Deer, Montana, for appellants Northern Cheyenne
Tribe and Native Action, Inc.
John T. Stahr, U.S. Department of Justice, Environmental &
Natural Resources, Washington, D.C., for the appellees.
John C. Martin, Patton Boggs LLP, Washington, D.C., for
intervenors-appellees Pinnacle Gas Resources, Inc., Devon
Energy Corporation, and Anadarko Petroleum Corporation.
Jon Metropoulos, Gough, Shanahan, Johnson & Waterman,
Helena, Montana, for intervenor-appellee Fidelity Exploration
& Production Company.
Jason S. Ritchie (briefed), Holland & Hart LLP, Billings,
Montana, for amicus curiae Nance Petroleum Corporation.
Jay Jerde (briefed), Deputy Attorney General, Wyoming
Attorney General’s Office, Cheyenne, Wyoming, for amicus
curiae State of Wyoming.
Nancy L. Rohde (briefed), Big Horn County Attorney’s
Office, Hardin, Montana, for amicus curiae Big Horn County,
Montana.
NORTHERN CHEYENNE v. NORTON 12161
OPINION
KLEINFELD, Circuit Judge:
This appeal challenges an injunction limiting but not
entirely prohibiting coal bed methane development while the
Bureau of Land Management expands an environmental
impact statement.1
Facts
The Powder River Basin in Montana and Wyoming is the
largest coal deposit in the United States and among the largest
in the world. For over a century, it has been developed into
ranches, farms, and coal mines. Farmers and ranchers gener-
ally have surface rights to the land involved in this case, but
not hell-to-heaven rights. The federal government owns sub-
surface mineral rights to the land at issue.
Besides its value for grass to feed cattle, farms, and coal
mines, the land is thought to cover vast amount of methane.
This coal bed methane is a natural gas generated by coal
deposits and trapped in coal seams by groundwater. Coal bed
methane is extracted by pumping the groundwater out of the
land and into rivers. As the water is removed, the hydraulic
pressure on the gas is relieved, so the gas percolates and is
piped to the surface, where it can be recompressed for ship-
1
Environmental lawyers ordinarily use acronyms, and cite statutes by
section numbers in the enactment rather than by section numbers in the
United States Code. This opinion is written in ordinary English. Special-
ists might find this opinion more accessible if we explain that it concerns
a NEPA challenge to a ROD of the BLM concluding that a FEIS ade-
quately evaluated CBM development under the Powder River Resource
Area RMP. The district court held the FEIS inadequate and partially
enjoined approval of APDs until BLM completed a SEIS. We refer to stat-
utory provisions by section numbers in the United States Code rather than
section numbers in the original Act. See Longview Fibre Co. v. Rasmus-
sen, 980 F.2d 1307, 1308 n.1 (9th Cir. 1992).
12162 NORTHERN CHEYENNE v. NORTON
ping. The process poses three potential environmental prob-
lems: the aesthetic harm from visibility of wells, pipes, and
compressors on the ranches and farms; the pollution of the
rivers and streams into which the groundwater is pumped; and
the lowering of the water table, so that ranchers’ and farmers’
(and expanding suburban developers’) wells run dry unless
they are drilled deeper.
The federal government owns most of the subsurface min-
eral rights in the Powder River Basin. The Bureau of Land
Management administers mineral resources owned by the fed-
eral government. It leases these resources for development
under the Mineral Leasing Act2 and manages them according
to resource management plans developed under the Federal
Land Policy and Management Act.3
For more than twenty years, the Bureau of Land Manage-
ment has had resource management plans for the Powder
River Resource Area. In 1994, BLM prepared an environmen-
tal impact statement analyzing development of oil and gas
resources. On the basis of this environmental impact state-
ment, it amended the resource management plan to permit
development of conventional oil and gas resources and lim-
ited exploration and development of coal bed methane
resources. In 1997, BLM began selling leases to develop oil
and gas resources and leaseholders began exploring coal bed
methane resources. The Powder River Basin covers about 14
million acres. The resource area covers about 8 million acres.
About 4 million acres are currently leased.
Exploration revealed extensive coal bed methane deposits.
As natural gas grew scarcer and more expensive, and energy
independence became an increasingly significant government
priority, the coal bed methane attracted more governmental
interest in development. In 2002, BLM, together with the
2
30 U.S.C. § 221 et seq.
3
43 U.S.C. § 1701 et seq.
NORTHERN CHEYENNE v. NORTON 12163
Montana Board of Oil and Gas Conservation and the Montana
Department of Environmental Quality, issued a draft environ-
mental impact statement analyzing development of coal bed
methane resources and made it available for public review
and comment.
The draft environmental impact statement analyzed five
alternatives in detail: (A) “No Action (Existing Manage-
ment)”; (B) “Emphasize Soil, Water, Air, Vegetation, Wild-
life, and Cultural Resources”; (C) “Emphasize CBM
Development”; (D) “Encourage Exploration and Develop-
ment While Maintaining Existing Land Uses”; (E) “Preferred
Alternative” that would “facilitate CBM exploration and
development while sustaining resource and social values, and
existing land uses.” The “Preferred Alternative” would not
permit operators to drill more than one well per 640 acres
without a project plan developed in consultation with the
affected surface owners and permitting agencies.
This draft environmental impact statement was challenged
by the federal Environmental Protection Agency, the Montana
Department of Fish, Wildlife, and Parks, an advocacy group
calling itself the Northern Plains Resource Council, and the
Northern Cheyenne Tribe of Indians. The commenters sug-
gested that BLM should study an additional alternative, which
they called “phased development.” The final environment
impact statement responds to this suggestion partly by saying
that many of the points at issue are addressed in the environ-
mental impact statement. The primary response, though, is
that “existing oil and gas leases” approved pursuant to a 1994
resource management plan included the rights to explore and
develop coal bed methane, and the time for challenging the
1994 decision was passed.
The district court concluded that the final environmental
impact statement was generally sufficient under NEPA, but
improperly failed to consider the “phased development” alter-
12164 NORTHERN CHEYENNE v. NORTON
native proposed by the commenters. Accordingly, it partially
enjoined coal bed methane development:
Having considered the arguments, as well as the evi-
dence and testimony presented, the Court finds that
BLM’s proposal presents a balanced, equitable
approach to CBM development during the pendency
of the SEIS. In making this finding, the Court bears
in mind that, in its opinion on the merits, the EIS
generally passed muster under NEPA, with the
exception of the failure to consider a phased devel-
opment alternative. The plan designed by BLM is
tailored to address this deficiency by allowing a type
of phased development to proceed at the same time
BLM analyzes the efficacy of such an alternative.
The proposal will assist BLM in choosing between
alternatives by permitting the agency to study the
effects of phased CBM development while preparing
the SEIS.4
The injunction prohibited coal bed methane development
on 93% of the resource area until BLM completed a revised
environmental impact statement, but permitted development
on 7% of the resource area, subject to site-specific review.
The district court granted the partial injunction on BLM’s rec-
ommended terms, concluding it was a “balanced and equita-
ble” solution because “the EIS generally passed muster under
NEPA, with the exception of the failure to consider a phased
development alternative.”5 As the district court noted, the par-
tial injunction allows “allowing a type of phased development
to proceed at the same time BLM analyzes the efficacy of
such an alternative.”6 In other words, the district court
4
N. Plains Res. Council v. United States BLM, 2005 U.S. Dist. LEXIS
25238, 7-8 (D. Mont. 2005).
5
N. Plains Res. Council v. United States BLM, 2005 U.S. Dist. LEXIS
25238, 7 (D. Mont. 2005).
6
N. Plains Res. Council v. United States BLM, 2005 U.S. Dist. LEXIS
25238, 7 (D. Mont. 2005).
NORTHERN CHEYENNE v. NORTON 12165
allowed what amounted to the “phased development” alterna-
tive to proceed while BLM decided whether to adopt it. The
challengers got approximately the alternative they wanted
BLM to consider, while it was being considered.
The district court found that the challengers failed to show
coal bed methane would cause environmental degradation.
The expert evidence they presented consisted of speculation
on what harm coal bed methane development might cause and
omitted relevant data like drought and stream flow volume.
BLM studies showed that the environmental impact of coal
bed methane development was less than anticipated, because
it produced “much less” wastewater at a “slower rate” with
“considerably lower” emissions than BLM’s environmental
impact statement predicted.7 Also, BLM planned to adopt
more stringent requirements for disposal of wastewater, pres-
ervation of ground water, and protection of tribal cultural
resources while preparing the supplemental environmental
impact statement. Moreover, “each site-specific plan for
development will be subject to an independent NEPA analysis.”8
Even though the partial injunction permits coal bed methane
development on 7% of the resource area, nothing can happen
on the ground until BLM issues a drilling permit, which
requires additional NEPA analysis.9
The district court rejected the developers’ challenges on the
other side, because they presented insufficient evidence the
partial injunction would cause economic harm. Balancing the
equities, the court allowed limited coal bed methane develop-
ment under the BLM plan because “CBM is an efficient and
clean-burning fossil fuel that produces fewer emissions than
7
N. Plains Res. Council v. United States BLM, 2005 U.S. Dist. LEXIS
25238, 8 (D. Mont. 2005).
8
N. Plains Res. Council v. United States BLM, 2005 U.S. Dist. LEXIS
25238, 9-10 (D. Mont. 2005).
9
N. Plains Res. Council v. United States BLM, 2005 U.S. Dist. LEXIS
25238, 13-14 (D. Mont. 2005).
12166 NORTHERN CHEYENNE v. NORTON
other fossil fuels” and “the public interest favors both devel-
oping CBM and protecting the environment.”10
The advocacy group, the tribe, and the developers all appeal.11
We stayed all coal bed methane development pending resolu-
tion of this appeal.12
I. Allowing some development.
The advocacy group and the tribe argue on appeal that the
district court was obligated to enjoin all coal bed methane
development, not just development on 93% of the resource
area. They claim “NEPA requires that no development pro-
ceed until after a valid EIS is complete.” They argue 40
C.F.R. § 1506.1(c)(3)13 required the district court to enjoin all
development because it concluded that the final environment
impact statement mistakenly failed to consider the phased
development alternative. The theory is that when a district
10
Northern Cheyenne v. Norton, Cause No. CV 03-69-BLG-RWA (D.
Mont. April 5, 2005).
11
The developers have standing to challenge the terms of the injunction,
but not to defend the adequacy of the environmental impact statement.
“Since NEPA requires only action by the government, no private party can
comply with NEPA. It is for that reason that in a lawsuit to compel com-
pliance with NEPA, no one but the federal government can be a defen-
dant.” Sierra Club v. United States EPA, 995 F.2d 1478, 1485 (9th Cir.
1993). The developers’ arguments are in the latter category, so we do not
address them.
12
We asked the parties whether BLM had completed the revised envi-
ronmental impact statement post-appeal and rendered this case moot, but
they advised us it had not.
13
“While work on a required program environmental impact statement
is in progress and the action is not covered by an existing program state-
ment, agencies shall not undertake in the interim any major Federal action
covered by the program which may significantly affect the quality of the
human environment unless such action . . . Will not prejudice the ultimate
decision on the program. Interim action prejudices the ultimate decision
on the program when it tends to determine subsequent development or
limit alternatives.” 40 C.F.R. § 1506.1(c)(3).
NORTHERN CHEYENNE v. NORTON 12167
court finds a violation of a statute, it must enforce the statute
without qualification.14
[1] We are bound by precedent to hold that a NEPA viola-
tion is subject to traditional standards in equity for injunctive
relief and does not require an automatic blanket injunction
against all development. We review the scope of an injunction
for abuse of discretion.15 In High Sierra Hikers Ass’n v.
Blackwell, we held that “the court must balance the equities
between the parties and give due regard to the public interest.”16
And in Idaho Watersheds Project v. Hahn we held that the
“interim measures imposed by the district court are a fair and
balanced interim remedy, giving due regard to protection of
the environment and the welfare of the affected ranching fami-
lies.”17
[2] Injunctive relief is appropriate when a party demon-
strates “(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant,
a remedy in equity is warranted; and (4) that the public inter-
est would not be disserved by a permanent injunction.”18
Injunctive relief is typically appropriate in environmental
cases (and was granted in this case) because “[e]nvironmental
injury, by its nature, can seldom be adequately remedied by
14
Appellants cite United States v. Oakland Cannabis Buyers’ Coop, 532
U.S. 483 (2001) and Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982),
for this general proposition, but do not cite any authority holding a NEPA
violation requires an automatic, full injunction rather than a partial injunc-
tion.
15
United States v. Alisal Water Corp., 431 F.3d 643, 654 (9th Cir.
2005).
16
High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642 (9th Cir.
2004).
17
Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-34 (9th Cir.
2002).
18
eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 1839 (2006).
12168 NORTHERN CHEYENNE v. NORTON
money damages and is often permanent or at least of long
duration, i.e., irreparable.”19 But injunctive relief is not auto-
matic, and there is no rule requiring automatic issuance of a
blanket injunction when a violation is found. As the Supreme
Court held in Weinberger v. Romero-Barcelo, “The grant of
jurisdiction to ensure compliance with a statute hardly sug-
gests an absolute duty to do so under any and all circum-
stances, and a federal judge sitting as chancellor is not
mechanically obligated to grant an injunction for every viola-
tion of law.”20
[3] When injunctive relief is appropriate, “the court must
balance the equities between the parties and give due regard
to the public interest.”21 Sometimes a full injunction is appro-
priate. But at other times, the equities demand a partial injunc-
tion.22 “A district court has ‘broad latitude in fashioning
equitable relief when necessary to remedy an established
wrong.’ ”23
[4] We cannot, on the basis of these cases, fault the district
court’s exercise of its discretion to issue a partial injunction
balancing the equities rather than an automatic full injunction.
In eBay Inc. v. MercExchange, L.L.C., the Supreme Court
held that “the decision whether to grant or deny injunctive
relief rests within the equitable discretion of the district
courts, and that such discretion must be exercised consistent
with traditional principles of equity.”24 And in Amoco Prod.
19
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987)
20
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982).
21
Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir. 2002)
(citing Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987)).
22
See, e.g., High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642
(9th Cir. 2004) and Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833-
34 (9th Cir. 2002).
23
High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir.
2004) (quoting Natural Res. Def. Council v. Southwest Marine, Inc., 236
F.3d 985, 999 (9th Cir. 2000)).
24
eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 1841 (2006).
NORTHERN CHEYENNE v. NORTON 12169
Co. v. Vill. of Gambell, the Supreme Court held that “a court
must balance the competing claims of injury and must con-
sider the effect on each party of the granting or withholding
of the requested relief.”25 If the district court had issued an
automatic injunction prohibiting all development without bal-
ancing the four equitable considerations, it would have vio-
lated eBay and Amoco.
[5] The partial injunction permits what appellants claim to
seek: phased development rather than full-field development.
The court found that the environmental impact statement basi-
cally complied with NEPA, except for its failure to consider
phased development. The partial injunction fully remedies
this failure. The district court concluded that a partial injunc-
tion would not cause irreparable harm, because a drilling per-
mit cannot issue without site-specific environmental
assessment. And it considered the public interest in clean
energy development as well as prevention of environmental
harms.
In Weinberger v. Romero-Barcelo, the Supreme Court held
that permitting the Navy to continue discharging ordnance
into the sea during the permit application process did not vio-
late the Federal Water Pollution Control Act, because “the
discharge of ordnance had not polluted the waters, and,
although the District Court declined to enjoin the discharges,
it neither ignored the statutory violation nor undercut the pur-
pose and function of the permit system.”26 And in Amoco
Prod. Co. v. Vill. of Gambell, the Supreme Court held that
permitting oil exploration to continue pending administrative
review did not violate the Alaska National Interest Lands
Conservation Act because “injury to subsistence resources
from exploration was not at all probable. And on the other
side of the balance of harms was the fact that the oil company
petitioners had committed approximately $ 70 million to
25
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)
26
Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-15 (1982).
12170 NORTHERN CHEYENNE v. NORTON
exploration to be conducted during the summer of 1985 which
they would have lost without chance of recovery had explora-
tion been enjoined.”27
[6] Importantly for this case, Amoco held that a presump-
tion of irreparable harm “is contrary to traditional equitable
principles” and “the environment can be fully protected with-
out this presumption.”28 Likewise, in High Sierra Hikers
Ass’n v. Blackwell, we held that a partial rather than a blanket
injunction was proper, despite a NEPA violation, because it
sufficiently took account of the potential harms on both sides.29
Here, the district court found the Bureau of Land Manage-
ment took a “hard look” at the environmental consequences
of coal bed methane development, and failed only to analyze
a phased development alternative in addition to the five oth-
ers. It found the evidence suggests coal bed methane develop-
ment causes less environmental damage than BLM
anticipated. And it found BLM’s proposed limited injunction
adopted measures calculated to minimize potential damage to
the environment.30
27
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544 (1987)
28
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544 (1987)
29
High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 642-643 (9th
Cir. 2004).
30
The dissent argues a NEPA violation requires an injunction prohibit-
ing all action pending NEPA compliance. On the contrary, there is no such
absolute rule, and were we to impose one, it would run afoul of Supreme
Court precedent and our own precedent. The Supreme Court and Ninth
Circuit precedents clearly establish that courts must apply the usual equita-
ble factors in determining the scope of an injunction pending NEPA com-
pliance. In Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544 (1987)
and Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-13 (1982), the
Supreme Court held that courts must apply the usual equitable factors in
determining the scope of an injunction pending compliance with proce-
dural environmental laws. And in High Sierra Hikers Ass’n v. Blackwell,
390 F.3d 630, 642-43 (9th Cir. 2004) and Idaho Watersheds Project v.
Hahn, 307 F.3d 815, 834 (9th Cir. 2002), we held the district court prop-
NORTHERN CHEYENNE v. NORTON 12171
II. Tribal claims.
Northern Cheyenne Tribe argues that the district court erred
in dismissing its claim under the National Historic Preserva-
tion Act.31 It argues the statute requires BLM to consult with
the tribe before issuing leases, because some of the resource
areas contain sites of great cultural importance to the tribe.
The tribe also claims that the environmental impact statement
was inadequate because it only superficially examined the
sociological and cultural effect of coal bed methane develop-
ment on the tribe. We review these claims de novo, because
the district court granted summary judgment.32
[7] We need not reach the merits of the claim that the
resource management plan will adversely affect Indian cul-
tural resources. Neither the plan nor the partial injunction can
affect any Indian cultural resources, because no actual devel-
erly considered the usual equitable factors and imposed “interim mea-
sures” amounting to a partial injunction pending NEPA compliance. We
have repeatedly held district courts must consider the traditional equitable
remedies in fashioning injunctive relief pending NEPA compliance. See,
e.g., NRDC v. United States Forest Serv., 421 F.3d 797, 817 (9th Cir.
2005); Westlands Water Dist. v. United States DOI, 376 F.3d 853, 877
(9th Cir. 2004); National Parks & Conservation Ass’n v. Babbitt, 241 F.3d
722, 739 (9th Cir. 2001); Alaska Wilderness Recreation & Tourism Ass’n
v. Morrison, 67 F.3d 723, 732 (9th Cir. 1995). Whether we refer to the
form of the relief ultimately ordered as a “partial injunction,” a “limited
injunction,” or an “injunction” is immaterial.
The dissent argues 40 C.F.R. § 1506.1(c) prohibits all action pending
NEPA compliance. The regulation does not say that. Instead, it imposes
only what it terms “Limitations on actions during NEPA process,” and 40
C.F.R. § 1506.1(c) expressly allows even “major Federal action” where
criteria are satisfied. We held in ONRC Action v. BLM, 150 F.3d 1132,
1138 (9th Cir. 1998) that the NEPA limitation on actions “is not without
qualification,” citing this regulation, and holding that it applied to that
case. Likewise, for the reasons explained above, it applies in this case.
31
16 U.S.C. § 470 et seq.
32
Gros Ventre Tribe v. United States, 469 F.3d 801, 808 (9th Cir. 2006).
12172 NORTHERN CHEYENNE v. NORTON
opment is possible without additional environmental assess-
ment, consultation with the tribe as required by the National
Historic Preservation Act, and permits. The BLM decision
supporting the resource management plan expressly states that
it “is not the final approval of any specific oil and gas explo-
ration, production, or development activities.”
[8] BLM concedes that except where barred by limitations,
the Tribe “is free to bring an action challenging any site-
specific leasing decision” issued under the resource manage-
ment plans. And it concedes that a “site specific analysis,
including a cumulative impact analysis, will be done when a
lessee comes to the BLM with a plan of development and
associated [applications for a permit to drill].”33 The final
environmental impact statement provides that “site specific
impacts on cultural resources will be analyzed as part of the
NEPA document prepared for each oil and gas action as
required in the lease notice.” The Northern Cheyenne Tribe
will be (and has been) consulted. With these concessions, the
tribal concerns are unripe. “Except where Congress explicitly
provides for our correction of the administrative process at a
higher level of generality, we intervene in the administration
of the laws only when, and to the extent that, a specific ‘final
agency action’ has an actual or immediately threatened effect.”34
V. Conclusion
The district court did not abuse its discretion in issuing the
partial injunction proposed by BLM because it provides an
equitable resolution consistent with the purposes of NEPA.
AFFIRMED.
33
“APDs,” in agency jargon.
34
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990)
NORTHERN CHEYENNE v. NORTON 12173
SCHROEDER, Chief Judge, dissenting:
We all agree that the district court correctly held that the
Bureau of Land Management violated NEPA when it drafted
an environmental impact statement considering several alter-
natives for large scale exploration and development of coal
bed methane mining in the Powder River Basin, but did not
consider an alternative that would have phased exploration
and development on a more gradual basis. We also agree that
the district court correctly ordered the agency to comply with
NEPA by preparing a supplemental environmental impact
statement that studied this “phased development” alternative.
Instead of entering an injunction to preserve the status quo
pending the agency’s compliance with NEPA, however, the
District Court entered an injunctive order that put into effect
the very alternative the BLM had failed to study. It is here
that I part company with the majority’s affirmance, because
the district court’s order allows major new activity to be intro-
duced into the area, potentially involving mining, road con-
struction, and water usage affecting precious underground
aquifers, before NEPA has been satisfied. Allowing this activ-
ity to take place before completion of the EIS is contrary to
the core purpose of NEPA, which is to ensure consideration
of all alternatives before major government action is taken.
See High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 639
(9th Cir. 2004) (stressing NEPA’s mandate that “an EIS be
prepared for all major Federal actions significantly affecting
the quality of the human environment”); Idaho Watersheds
Project v. Hahn, 307 F.3d 815, 831 (9th Cir. 2002) (agency
required to “conduct environment studies required by law [to]
properly determine . . . what measures should be implemented
permanently”); Middle Rio Grande Conservancy Dist. v. Nor-
ton, 294 F.3d 1220, 1226 (10th Cir. 2002) (approving injunc-
tion where agency “failed to consider important aspects of the
problem before” it); Davis v. Mineta, 302 F.3d 1104, 1110
(10th Cir. 2002) (requiring injunction pending determination
of project’s “potential effects on the environment, parkland
12174 NORTHERN CHEYENNE v. NORTON
and historic structures”). We have never allowed new federal
action to take place before the agency has complied with
NEPA. Yet the majority affirms the district court’s order
doing precisely that.
The result here is also contrary to fundamental injunction
principles, which stress avoiding undue hardship and main-
taining the status quo pending completion of agency or other
legal proceedings. Indeed, a motions panel of this court
entered an order granting an emergency motion to enjoin all
projects, drilling and new construction pending resolution of
this appeal. We have repeatedly emphasized the importance
of maintaining the status quo pending compliance with
NEPA. Se. Alaska Conservation Council v. U.S. Army Corps
of Engineers, 479 F.3d 1148, 1151 (9th Cir. 2007) (“the
whole point of the injunction” is to maintain the status quo
pending evaluation). Ironically, the cases on which the major-
ity relies make exactly this point. See High Sierra Hikers
Ass’n, 390 F.3d 630; Idaho Watersheds Project, 307 F.3d
815. They both affirmed injunctive orders that permitted, on
a limited basis, activities that were already taking place, but
enjoined any new activity pending study. In High Sierra Hik-
ers Ass’n, we enjoined issuance of new commercial packstock
special-use permits, while allowing packstock operators to
continue to use the special-use permits that already had been
issued. 390 F.3d at 642-42. In Idaho Watersheds Project, we
enjoined issuance of new grazing permits that had not been
lawfully authorized prior to the proposed changes in the regu-
lation at issue in that case. 307 F.3d at 827.
The majority says in note 30 that courts are required to
“apply the usual equitable factors” in determining the scope
of injunctive relief, suggesting that advocates seek a different
test. Of course we do not abandon the usual standard for
determining whether injunctive relief is warranted when we
decide an environmental case. We are, however, bound by
NEPA, and allowing the agency to take new action without
NORTHERN CHEYENNE v. NORTON 12175
adequate environmental study creates a serious threat of irrep-
arable harm under NEPA.
The whole point of NEPA is to study the impact of an
action on the environment before the action is taken. See Con-
ner v. Buford, 848 F.2d 1441, 1532 (9th Cir. 1988) (NEPA
requires that agencies prepare an EIS before there is “any irre-
versible and irretrievable commitment of resources”). Where
“[i]nterim action prejudices the ultimate decision on the pro-
gram[,]” NEPA forbids it. 40 C.F.R. § 1506.1(c)(1)-(3).
Action prejudices the outcome “when it tends to determine
subsequent development or limit alternatives.” Id. In this case,
once coal bed methane development is allowed, the impact on
the environment cannot be undone, which is exactly the situa-
tion NEPA disallows—allowing new activity that limits alter-
natives in the future.
The majority speaks in terms of “blanket” and “partial” and
“limited” injunctions, but such terminology is not used in
environmental injunction cases. Our cases require that all
available options be preserved, pending full environmental
review. See Se. Alaska Conservation Council, 479 F.3d at
1151; see also California v. Block, 690 F.2d 753, 763 (9th
Cir. 1982) (“the promise of site-specific EIS’s in the future is
meaningless if later analysis cannot consider wilderness pres-
ervation as an alternative to development”). We have never
spoken of “limited” or “partial” injunctions in the NEPA con-
text. Use of this new and confusing terminology puts this case
even more out of synch with the law.
I understand the desire of the district court to try to find a
middle ground, but with respect to NEPA’s requirements for
full study of alternatives prior to implementation of new,
major federal action, there is no alternative. There must be
compliance. I therefore respectfully dissent.