United States Department of the Interior O F F I C E OF H E A R I N G S A N D APPEARS

Interior Board of Land Appeals N . Street, Suite 300

Arlington, Virginia 22203

703-235-8349 (fax)

September 30, 2010

2010-23

SAN JUAN CITIZENS ALLIANCE

NMNM 122181

Oil & Gas Geophysical Exploration

Motion for Expedited Consideration Denied as Moot; Motion for Reconsideration Denied as Moot; Motion to Dismiss Granted; Appeal Dismissed as Moot

ORDER

San Juan Citizens Alliance (SJCA) has appealed from an October 9, 2009, Decision Record (DR) and Finding of No Significant Impact issued by the District Manager, (New Mexico) Field Office (FFO), Bureau of Land Management (BLM). The approved the West Rosa Unit 3D Geophysical Exploration Survey Project (Project) proposed by Green River Energy Resources, Inc. (GRER). It authorized GRER to conduct seismic prospecting involving "a shothole, vibroseis and receiver three-dimensional (3D) geophysical seismic survey," intended to assess the presence of oil and gas resources, on approximately 18,236 ' acres (about square miles) of public land administered by BLM. 2 The Project as

On Nov. 4, 2009, SJCA filed a Petition for Stay of implementation of the West Rosa Project and a Request for Expedited Consideration. On Feb. 2, 2010, we denied the Petition for Stay on the ground that SJCA had not demonstrated standing to maintain the appeal, ordered SJCA to show cause why its appeal should not be dismissed for lack of standing, and took the Request for Expedited Consideration under advisement. Feb. 2, 2010, Order at 4. In a Supplemental Pleading dated Feb. 18, SJCA submitted affidavits demonstrating standing and requested reconsideration of our denial of a stay. In view of our dismissal here, SJCA's motions for expedited consideration and reconsideration are also dismissed as moot.

GRER is a contractor for Williams Production RMT Co. (Williams), the unit operator of the Federal Rosa Unit, which encompasses all of the Federal, State, and private unitized lands in the Project area.

The Project Area consists of 29,746 acres of public, private, and State lands

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authorized by the was analyzed in the October 2009 Environmental Assessment (EA) prepared pursuant to section of the National Environmental Policy Act of 1969 (NEPA), 42 § (C)

On May 2010, SJCA filed a pleading wi th the Board, alleging "new" information that the United States Forest Service (Forest Service) is proceeding wi th a "categorical exclusion"4 of the East Rosa 3D Geophysical Survey Project, within the East Rosa area of the San Juan Basin on land under the jurisdiction of the Forest Service, which SJCA considered "connected" to BLM's West Rosa Project, pursuant to 40 C.F.R. § 1508.25(a). SJCA again requested reconsideration, expedited review, and remand for preparation of an Environmental Impact Statement in concert with the Forest Service review of the East Rosa Project. Second Supplemental Pleading (SSP) at unpaginated 2-6.

On August 1, 2010, BLM filed a Motion to Dismiss SJCA's appeal on the ground that the matter is moot, as the Project has been completed and reclamation accomplished.5 Motion to Dismiss at 1. SJCA responded on August 20, 2010, claiming that the matter is one capable of repetition, yet evading review, and urging the Board should not to dismiss the appeal as moot. I t contends, as before, that the Forest Service is authorized to categorically exclude the East Rosa Project from

situated wi thin the West Rosa area of the San Juan Basin, in Ts. 30 to 32 N. , Rs. 5 and 6 W., New Mexico Principal Meridian, San Juan and Rio Arriba Counties, New Mexico. at 1. The EA is tiered to the Apr. 2003 EIS prepared in conjunction wi th the

December 2003 Farmington Resource Management Plan (RMP). EA at 13, 14.

See Forest Service NEPA Handbook, Chapter 30, "Categorical Exclusion from Documentation" (eff. Apr. 17, 2009); 36 C.F.R. § 220.6(e)(8)(h) geophysical data using shot hole, vibroseis, or surface charge methods" may be categorically excluded).

In support, BLM attached a BLM Form 3150-5, "Notice of Completion of Oil and Gas Geophysical Exploration Operations," dated July 5, 2010, and signed by GRER's Operation Manager. Motion to Dismiss, Ex. 1. That Form certifies that "all shotpoints were detonated"; "all remaining explosives and supplies were removed from the project area"; that surface disturbances have been reclaimed, including plugging and reclaiming and that cuttings [were] raked to less than 1 inch following natural contours, [a]pproved seed mix spread at all shot locations," and the area [was] reseeded as per COA [Conditions of Approval]." Id.

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analysis under NEPA, and, therefore, alleged deficiencies in BLM's cumulative impact analysis wi l l evade proper review.

For the reasons that follow, we dismiss SJCA's appeal as moot because the Board has no factual or legal basis upon which to provide effective relief, and SJCA has not demonstrated that the challenged issue is a matter capable of repetition yet evading review.

Background

On February 19, 2009, in accordance wi th the regulations in 43 C.F.R. Part GRER filed a "Notice of Intent and Authorization to Conduct Oil and Gas Geophysical Exploration Operations" wi th BLM for an oil and gas geophysical exploration permit for the West Rosa Project. Along wi th the NOI, GRER provided a Statement of Operations that described its proposal. EA, Appendix A. BLM revised GRER's proposal in the proposed action analyzed in the EA, and approved that proposed action in the See Feb. 2, 2010, Order at 1-2.

In order to assess the potential environmental impacts of the proposed Project and alternatives thereto, BLM prepared the October 2009 EA. The Forest Service participated in this process as a cooperating agency. The public was notified of the draft EA on September 4, and afforded a 20-day public comment period.7

at 2. The proposed action adopted "vibroseis, heliportable shothole drilling and air guns (for water operations only)" as methods of generating sonic energy. EA at 13. The seismic waves would be recorded at a receiver point and analyzed. Id. at 7.

The District Manager approved the Project in his October 2009 DR, subject to standard and project-specific mitigation measures, which were identified during preparation of the EA and adopted as mandatory COAs. The District Manager noted that "a total of 6.39 acres . . . would realize actual ground disturbance from the helidrill shotholes," no off-road vehicles would be used, vibroseis would be limited to existing roads, and operations would comply wi th specified mitigation measures.

BLM issued an initial FONSI on Sept. 4, 2009, in connection wi th its draft EA.

SJCA submitted comments on Oct. 5, 2009. See Petition for Stay at 1. BLM considered those comments in deciding whether to approve the Project, concluding that SJCA "provided no substantive comments that necessitated the BLM to revisit the proposed project through additional NEPA procedures." FONSI at 2.

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FONSI at 1-2. He referred to possible impacts identified in the EA, including displacement of some wildlife species, "[s]ome soil mixing, and loss of vegetation at the actual shotholes," but found them insignificant, as all disturbed areas would be reseeded, recovery of the soil and vegetation would occur within "a few years," and wildlife recovery "is anticipated to quickly occur." Id. at 2. He further noted that the area had been extensively surveyed, and "all source and lines have been rerouted to completely avoid known [archeological] sites." Id. He concluded that the Project would not significantly impact the human environment, and thus not require preparation of an EIS.

SJCA timely appealed, principally challenging BLM's authority to approve the Project under the RMP. SOR at 11-64. It also challenged the adequacy of the EA. Id. at 59-63. SJCA argued that the EA did not consider the East and West Rosa Projects as "connected actions," pursuant to 40 C.F.R. § 1508.25(a), and failed to evaluate possible impacts from both in its cumulative impacts analysis. 7d.9

Discussion

The general rule regarding mootness is well established. When events occurring subsequent to the filing of an appeal have deprived the Board of any ability to provide effective relief, and no concrete purpose would be served by resolution of the issues presented, the appeal is properly dismissed as moot. Michael Voegele, 174 IBLA 313, 317 (2008); Armando Fernandez, 165 IBLA 41 , 46 (2005); Southern Utah Wilderness Alliance, 151 IBLA 237, 240 (1999); West Virginia Highlands Conservancy, 149 IBLA 106, 114 (1999). We have declined to dismiss an appeal on the basis of mootness where, as in the judicial context, i t presents an issue which is "capable of repetition, yet evading review." Michael Voegele, 174 IBLA at 317; Colorado Environmental Coalition, 108 IBLA 10, 15-16 (1989) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515 (1911)). SJCA contends that such is the case here.

BLM, in its DR, incorrectly cited 43 C.F.R. § 3165.3 as providing an initial right of appeal to the State Director, followed by a right of appeal to the Board, under 43 C.F.R. § 3165.4. Those regulations pertain to onshore oil and gas operations under 43 C.F.R. Part 3160. At issue here are onshore oil and gas geophysical exploration operations under 43 C.F.R. Part The right of appeal directly to the Board arises under 43 C.F.R. § 3150.2(a), in the case of such operations.

As part of its cumulative impacts analysis, the EA noted that the East Rosa Project was economically uncertain, and in any event, would not occur simultaneously wi th the West Rosa Project. EA at 97.

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In the case at hand, we that "events occurring subsequent to the filing of an appeal have deprived the Board of any ability to provide effective relief, and no concrete purpose would be served by resolution of the issues presented." Michael Voegele, IBLA at 317. Evidence submitted by BLM demonstrates that the West Rosa Project and its reclamation have been completed.10

Further, we SJCA's argument that the appeal presents an issue that is capable of repetition, yet evading review, unpersuasive and undermined by publicly-available facts of which we take judicial notice.11 According to the Forest Service webpage, detailing the Carson National Forest Service Schedule of Proposed Actions (FS Schedule), in April 2010, the Forest Service announced its environmental review of the East Rosa Project, and solicited public scoping comments.12

SJCA availed itself of that opportunity by submitting comments, as indicated by the copy of those comments that SJCA forwarded to the Board. "East Rosa 3D Geophysical Survey Comments" to Mark Catron, District Ranger, Jicarilla Ranger District, Forest Service, dated May 28, 2010 (SJCA's Forest Service Comment Letter). Those comments contend generally that the East and West Projects should have been treated as a "connected action" wi th both evaluated in a single EIS and that a categorical exclusion of the East Rosa Project from NEPA analysis was unlawful. SJCA's Forest Service Comment Letter at 2, 3, 4, and 8-10.

We note that BLM retains authority to enforce any outstanding obligations under the project approval." For instance, under the COAs, Williams and GRER are responsible for reseeding " i f a satisfactory stand is not obtained as determined by the AO [Authorized Officer] upon evaluation after the second growing season," and BLM may take appropriate measures to ensure future reclamation upon forfeiture of the applicants' bond. Appendix A, at 5. Additionally, the DR required Williams to implement a "Quality Assurance/Quality Control Compliance Program, in which a 'Compliance w i l l oversee environmental compliance, including "enforcing all . . . contract terms as provided by . . . government agencies related to the Project." West Rosa 3D Geophysical Monitoring Report, Interim Report, Nov. 2009, Appendix A, at 20.

Under 43 C.F.R. § 4.24(4), the Board may take judicial notice of "any matter of which the courts may take judicial notice," including public "documents which are open to inspection by the parties."

According to the Carson National Forest, Projects and Policies, Schedule of Proposed Actions website, the FS Schedule is "published in January, Apri l , July, and October." http://www.fs.fed.us/sopa/index.php. The FS Schedule "contains a list of proposed actions that w i l l soon begin or are currently undergoing environmental analysis and documentation." Id.

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SJCA has failed substantiate the basis for its opposition to BLM's Motion to Dismiss the appeal. It has not shown that, because the Forest Service wi l l categorically exclude the East Rosa Project from environmental review, any cumulative impacts wi l l go unreviewed, in violation of NEPA.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4 .1 , SJCA's appeal is dismissed as moot, and the motions for expedited consideration and reconsideration are dismissed as moot.

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