Diné Citizens Against Ruining Our Environment v. Bernhardt

In 2003, the Bureau of Land Management (BLM) (defendant) issued an environmental-impact statement (EIS) concerning proposed oil-and-gas drilling in the San Juan Basin. To drill new wells in the basin, operators needed BLM approval of their applications for permits to drill (APDs). Under the National Environmental Policy Act (NEPA), when the BLM received an APD, the BLM prepared an environmental assessment of proposed-drilling impacts. If the BLM found significant environmental impacts, the BLM then prepared a thorough EIS. However, if the BLM found no significant environmental impacts of drilling, the BLM issued a finding of no significant impact (FONSI). Beginning in 2010, the BLM received APDs for the basin’s Mancos Shale area. In 2014, the BLM prepared a reasonably foreseeable development scenario (RFDS) predicting that full development of the Mancos Shale would result in 3,960 new wells, mostly from horizontal drilling and multi-stage hydraulic fracturing. The BLM’s 2003 EIS had not considered the environmental impact of these drilling techniques because the techniques were not economically or technologically feasible at the time. However, the BLM eventually approved over 300 APDs for horizontal wells in the Mancos Shale based on the assumptions in the 2003 EIS and issued FONSIs for the proposed drilling. Environmental-advocacy groups including Diné Citizens Against Ruining Our Environment (Diné) (plaintiffs) sued the BLM and other federal officials and agencies (defendants), alleging that the BLM’s authorization of the drilling violated NEPA and the National Historic Preservation Act (NHPA) because the BLM had not sufficiently considered the effects of the drilling on the environment or nearby historic sites. Specifically, Diné asserted that the BLM had violated the NHPA by arbitrarily failing to consider relevant cultural sites the Mancos Shale development might have indirectly affected and failing to consider the drilling’s broader cumulative impact on sites beyond specific drilling areas. However, a 2014 protocol governing the BLM’s NHPA analysis of the APDs provided guidance for how the BLM should determine the area of potential effects (APE) of the drilling, which the BLM had followed. The protocol did not explicitly require the BLM to identify a separate APE for the drilling’s indirect effects or to analyze the cumulative impacts of the drilling outside the APE. Diné also asserted that the BLM had violated NEPA by failing to consider the cumulative impacts of water-resource use associated with the 3,960 predicted horizontal Mancos Shale wells. The district court dismissed Diné’s claims. Diné appealed.