ORDER
RICHARD GERGEL, District Judge
Plaintiff Terral Y. Alexander filed this action on July 29, 2009, seeking judicial review of a final decision of Defendant Commissioner of Social Security denying Plaintiff's application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial handling. As detailed herein, after a de novo review of the Record, this Court adopts the Report and Recommendation of the Magistrate to reverse and remands this matter to the ALJ for further administrative proceedings consistent with this Order.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. Section 205(g) of the Act provides, "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than a preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
The court must uphold the Commissioner's decision as long as it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). "From this it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that his conclusion is rational." Vitek, 438 F.2d at 1157-58.
The Commissioner's denial of benefits shall be reversed only if no reasonable mind could accept the record as adequate to support that determination. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The Commissioner's findings of fact are not binding, however, if they were based upon the application of an improper legal standard. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
The ALJ determined that Plaintiff was not entitled to the benefits sought. Plaintiff then appealed. On August 30, 2010, the Magistrate Judge issued a Report and Recommendation in which he recommended that the decision of the Commissioner be reversed and that the case be remanded to the Commissioner for further administrative action. (Dkt. No. 18). On September 16, 2010 the Commissioner filed objections opposing only the Magistrate's recommendation that the matter be remanded to the ALJ for consideration of Plaintiff's work assessment. (Dkt. No. 20). Plaintiff filed no objection. As noted above, while this court must uphold a decision by the Commissioner that is supported by substantial evidence, this court reviews de novo any portion of the Report to which either party specifically objects.
In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months. The regulations require the ALJ to consider, in sequence:
1) whether the claimant is engaged in substantial gainful activity;
2) whether the claimant has a "severe" impairment;
3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 4, Subpart P, Appendix 1 ("the Listings"), and thus is presumptively disabled;
4) whether the claimant can perform his past relevant work; and
5) whether the claimant's impairments prevent him from doing any other kind of work.
20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step.
Id.
At the administrative level, the ALJ concluded that Plaintiff was not disabled and there were many jobs he is capable of performing despite his not being able to perform his past relevant work. (Dkt. No. 14). After a careful de novo review and consideration of the evidence and arguments presented, this Court finds that there is not substantial evidence in the record to support the conclusion of the ALJ that Plaintiff could perform at a medium work capacity. Accordingly, the denial of benefits is reversed and the matter is remanded to the ALJ for further proceedings.
PLAINTIFF'S RESIDUAL FUNCTIONAL CAPACITY
Specifically, Plaintiff alleges that the ALJ erred by failing to properly determine his residual functional capacity ("RFC") and in finding that he had the RFC for medium work. Plaintiff contends that the ALJ did not perform the "function-by-function" assessment required by SSR 96-8p. Plaintiff argued that the ALJ's conclusion that he can perform medium work is not supported by substantial evidence because he is unable to perform the basic mental demands of unskilled work as evidenced by the statements of Dr. Cole and his physician's assistant Mr. Ramirez. In response, the Commissioner counters that the ALJ met the requirements of a function-by-function assessment by specifically incorporating the statutory definition of medium work into the ALJ's residual functional capacity finding.
Ramirez is a physician's assistant, and thus not a treating physician nor an "acceptable medical source" under the regulations. 20 C.F.R. § 416.913(a) and (d); 20 C.F.R. §§ 416.913(a) and(d). Accordingly, his opinion is entitled to "significantly less weight." Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). His opinions, however, may provide insight into the severity of the claimant's impairment and how it affects the claimant's ability to function. SSR 06-03p.
The law is clear, the ALJ's RFC assessment should be based on all the relevant evidence. 20 C.F.R. § 404.1545(a). Social Security Ruling 96-8p requires that the RFC assessment "include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts ( e.g., laboratory findings) and non-medical evidence ( e.g., daily activities, observations)." The RFC must "first identify the individual's functional limitations or restrictions and assess his or her work-relatedabilities on a function-by-function basis. . . ." SSR 96-8. Further, the ALJ must discuss the claimant's ability to work in an ordinary work setting on a regular work schedule. Id.
Here, the ALJ's RFC assessment and finding that Plaintiff had the RFC for medium work is not supported by substantial evidence. In his administrative order, the ALJ states that Plaintiff has the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) with certain limitations. (Tr. 14-17). He states that the limitations are based on Exhibits 18F and 19F, which respectively are the Physical RFC assessment completed by Dr. Chandler and the Mental RFC Assessment completed by Dr. Ronin. ( See Tr. 400-411). It may be that the ALJ relied on the findings of these nonexamining, non-treating sources in determining Plaintiff's RFC and these findings may be substantial evidence to support the ALJ's findings but it is unclear from the Record what weight the ALJ gave to these opinions in determining Plaintiff's RFC and why these opinions were given greater weight than that of the medical and psychological treatment providers who treated and examined Plaintiff. Further, the reports that appear to have been relied upon by the ALJ were completed in February 2006 and thus did not take into account Plaintiff's later medical history (including his August 2007 cervical spine MRI showing disc bulging), ongoing treatment at Oconee Family Practice, and Mr. Ramirez's March 2006 and 2008 opinions. Additionally, there is no mention in the ALJ's decision of either Plaintiff's testimony that he used a cane at times due to pain and swelling in his leg or PA Ramirez's notation (in his March 2008 opinion) that Plaintiff would need a cane while engaging in occasional standing or walking. As the use of an assistive device may affect Plaintiff's ability to perform certain tasks, the ALJ should have considered this issue.
See 20 C.F.R. §§ 404.1527(f)(2) and 416.927(f)(2); SSR 96-6p (providing that "[f]indings of fact made by State agency . . . [physicians and psychologists] . . . regarding the nature and severity of an individual's impairments must be treated as expert opinion of non-examining sources at the [ALJ] and Appeals Council level of administrative review.").
While, the outcome may be the same, on remand the ALJ is instructed to perform the analysis as outlined by the applicable regulations as noted above in order for this Court to determine whether the ALJ's denial of benefits was proper.
CONCLUSION
Based on the above, this matter is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and remanded on the points above to the ALJ for further consideration as outlined herein.
IT IS SO ORDERED.
September 29, 2010 Charleston, South Carolina
ing, e.g., AR 10749, AR 51275-88, AR 11017, AR 11106).
Even assuming that the lower standard of unnecessary or undue degradation from the mining context applies in this situation, the BLM's determination that such degradation would not occur is supported by the record. Though plaintiff would prefer stronger protection of wildlife, especially the sage grouse, the BLM's responsibility under the FLMPA is to ensure that public lands are managed "under principles of multiple use and sustained yield." 43 U.S.C. § 1732(a). "`Multiple use management' is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, `including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and [uses serving] natural scenic, scientific and historical values.'" Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004) (alteration in original) (quoting 43 U.S.C. § 1702(c)). BLM's second goal, sustainable yield, "requires BLM to control depleting uses over time, so as to ensure a high level of valuable uses in the future." Id. (citing 43 U.S.C. § 1702(h)). Accordingly, the BLM was not required, under FLMPA, to adopt the practices best suited to protecting wildlife, but instead to balance the protection of wildlife with the nation's immediate and long-term need for energy resources and the lessees' right to extract natural gas.
The Court recognizes, as it must, that the BLM has limited authority to impose restrictions on the natural gas leases at issue. In particular, "[t]he BLM cannot dictate the number of wells unless a limit is stipulated at the time the lease is issued. In this case, all existing leases carry no such stipulation. The leaseholder has the legal right and obligation to drill as many wells as necessary to extract the natural gas within their lease." AR 28387; see also Sierra Club v. Peterson, 717 F.2d 1409, 1411 (D.C. Cir. 1983) ("On land leased without a No Surface Occupancy Stipulation the Department cannot deny the permit to drill; it can only impose `reasonable' conditions which are designed to mitigate the environmental impacts of the drilling operations.").
The BLM recognized the need for increased development and thoroughly examined the effects of lifting seasonal restrictions and concentrating activity as a means of achieving it while at the same time offering protections to wildlife. It evaluated the potential benefits of its mitigation and monitoring plan, and the ways in which it could decelerate the inevitable harms to wildlife associated with increased development. See generally AR 49419-21 (discussing Alternative D's impact on wildlife). Alternative D included several mitigation steps designed to decrease impact, such as a liquid gathering system and centralized processing and storage; computer assisted remote monitoring of producing wells; coordinating transportation routes and bussing of workers; provisions for concentrating activity geographically and seasonally; and the creation of a monitoring and mitigation fund dedicated to fund monitoring and on- and off-site mitigation (such as acquiring conservation easements on land adjacent to the PAPA) as needed. AR 49596-600; AR 49608-13. The BLM evaluated the benefits of these enhanced mitigation measures as reducing surface disturbance (including traffic and human activity), and preserving "large contiguous undisturbed blocks of habitat and migration corridors." AR 49608. They also provided for earlier well pad reclamation and reduced air emissions. Id.
It is clear that the BLM's determination that these provisions would prevent unnecessary or undue degradation is supported by the record. See, e.g., AR 31140-47; see also AR 28388 ("The drilling of multiple wells from a single pad, the consolidation of production facilities, the use of existing roads wherever possible and other measures are just some of the mitigation practices that reduce the impacts of drilling."). Indeed, the Wyoming Game and Fish Department ("WGFD") supported the BLM's decision to lift the seasonal restrictions, noting that "[s]ince seasonal stipulations only provide protection during a part of each year, intense development activities can continue to have impacts on habitats during the rest of each year, and cumulative annual increases in those impacts over a period of years will become significant," and that the BLM's preferred alternative served to mitigate those cumulate impacts. AR 28029. The WGFD also made several other recommendations for the benefit of wildlife, which were adopted by the BLM. See generally AR 28028-37 (recommending inclusion of, among other measures, directional drilling, central gathering and processing, remote monitoring, bussing of crews, annual monitoring, the provision of up-front funding for mitigation, and reclamation as benefits to wildlife and habitats). Though the BLM may not have selected procedures and methods best suited for the protection of wildlife, its determination that unnecessary or undue degradation would not result from the measures it ultimately did select is not arbitrary and capricious.
The 2008 ROD also committed the Operators and the BLM to a Wildlife Monitoring and Mitigation Matrix implementing monitoring and sequential mitigation measures. See AR 49601-06. In addition to monitoring, the mitigation measures provide first for protection of the flank areas, habitat enhancements, and conservation easements as a means of compensating for the impact to wildlife; and finally, for adjustments of the special arrangement and/or pace of development to mitigate the cause of the impact. AR 49606; AR 49420-21. They are consistent with the BLM's judgment that concentrated activity in already-impacted zones would present the best compromise between natural gas extraction and its attempts to stem, but not halt, the attendant impacts on wildlife. In sum, though commentators, as well as TRCP, may have disagreed with BLM's ultimate determination, the 2008 SEIS and ROD support the BLM's balancing of the need for heightened natural gas production against foreseeable declines in wildlife, and its ultimate determination that unnecessary or undue degradation would not occur.
b. TRCP's claims regarding violations of the 1988 RMP are moot.
In its opening brief TRCP contends that by lifting the seasonal drilling restrictions, the 2008 ROD expressly violates the 1988 RMP, which requires implementation of seasonal restrictions to protect wildlife. The FLPMA prohibits BLM from taking actions inconsistent with RMPs. 43 U.S.C. § 1732(a); 43 C.F.R. § 1610.5-3(a); see also S. Utah Wilderness Alliance, 542 U.S. at 69.
Defendants argue that the 2008 ROD did not violate the 1988 RMP, which allowed for case-by-case exceptions to the seasonal restrictions requirement (AR 50967), and that nevertheless, plaintiff's claim is moot due to the issuance of a new RMP in November 2008. See Notice of Availability of Record of Decisions for the Pinedale Resource Management Plan/Environmental Impact Statement, 74 Fed. Reg. 828 (Jan. 8, 2009). I agree. The BLM accounted for the issuance of the new RMP, which was already in draft form, into its 2008 ROD ( see, e.g., AR 31138; Tr. 23:24-24:3), and once the new RMP was issued (subsequent to TRCP's filing of the Amended Complaint), this claim became moot. Moreover, plaintiff appears to have conceded these arguments by failing to address them in its opposition/reply.
2. The BLM Did Not Violate NEPA.
Under NEPA, an agency must prepare an EIS examining the environmental impact of a proposed action (and several alternatives) for every "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "An EIS must be detailed, and it must be prepared in consultation with other federal agencies with special expertise relevant to the proposed action's environmental impact." TRCP, No. 09-5162, slip op. at 3 (citing 42 U.S.C. § 4332(2)(C)). Preparation of an EIS "serves NEPA's `action-forcing' purpose" by ensuring that the agency considers "detailed information concerning significant environmental impacts" and by "guarantee[ing] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Accordingly, NEPA requires that an agency take a "hard look" at the environmental consequences of the proposed course of action, Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374 (1989), and "consider every significant aspect of the environmental impact of a proposed action," Baltimore Gas Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (quotation omitted).
However, "it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson, 490 U.S. at 350. Because "NEPA merely prohibits uniformed — rather than unwise — agency action," in determining whether a NEPA violation occurred and the agency action is thus arbitrary and capricious, the Court must not substitute its own judgment for that of the agency. Id. at 351. Instead, "the Court must `consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.'" Biodiversity Conservation Alliance v. U.S. Bureau of Land Mgmt., 404 F. Supp. 2d 212, 216 (D.D.C. 2005) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971)). TRCP argues that the BLM violated NEPA because its 2008 SEIS was deficient in the following respects. I disagree.
a. BLM considered a "no action" alternative.
TRCP argues that the BLM failed to include a "no action" alternative in its 2008 SEIS as mandated under NEPA. 42 U.S.C. § 4332(2)(E); 40 C.F.R. § 1502.14(d). The "no action" alternative is required because it serves as a benchmark against which the other alternatives can be evaluated. See CEQ Forty Most Asked Questions (Q. No. 3).
The 2008 SEIS included analysis of Alternative A, the "no action" alternative. See, e.g., AR 49058-63. Alternative A assumed that the "BLM would continue to manage natural gas development in the PAPA based on the provisions of the [2000 ROD] and subsequent Decision Records." AR 49058. Plaintiff contends, however, that because the BLM relied on an outdated figure estimating the number of producing wells in the PAPA that underestimated the actual state of development, Alternative A did not constitute a "no action" alternative. Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") 33-34.
Plaintiff amended its summary judgment motion to include citations to the supplemental administrative record on March 9, 2010 [#37]. All citations to plaintiff's motion are to the amended version.
However, the BLM did include the estimates of future well development in Alternative A, thus accounting for the additional wells built in the time between its last well count figure and the issuance of the 2008 SEIS. See AR 49062, Table 2.4-9 (estimating an additional 231 wells in 2007 and 235 wells in 2008); AR 49060 ("The No Action Alternative, through 2011, includes an additional 1,139 producing wells."). Alternative A thus presented a clear analysis of the impact of continuing with the then-present course of action. Accordingly, Alternative A appropriately considered the impacts of proceeding under the 2000 ROD, or taking "no action," as was required, and TRCP's claim on this ground must fail.
b. BLM considered a reasonable range of alternatives.
Additionally, TRCP contends that the BLM should have included an "alternative that evaluated development in the PAPA in a manner originally contemplated under the 2000 ROD." Pl.'s Mot. 35. Because development in 2005 had already exceeded the pace dictated by the 2000 ROD, TRCP argues, BLM was obligated to evaluate an alternative that "scaled back" the pace of development. Not so.
Our Circuit Court has held that an agency "bears the responsibility for deciding which alternatives to consider in an environmental impact statement," and that its decision must only follow the "rule of reason." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (citations omitted). The selection of alternatives must be reasonable, as defined in relation to the objectives of a particular action that the agency sets out. Id. at 195-96 (citing 40 C.F.R. §§ 1502.14(a)-(c), 1508.25(b)(2)). Under the rule of reason standard, the Court will "uphold an agency's definition of objectives so long as the objectives that the agency chooses are reasonable," and its "discussion of alternatives so long as the alternatives are reasonable and the agency discusses them in reasonable detail." Id. at 196.
The BLM's objective, in this case, was "to act upon the Proponents' proposal to revise the PAPA [2000] ROD to expand the level of development by drilling 4,399 new producing wells and to relax seasonal restrictions in certain areas." AR 49027. The BLM was not required to approve this proposal — indeed, the very purpose of the SEIS was to evaluate the impacts of the proposal. Accordingly, the BLM analyzed five alternative scenarios, which, other than the "no action" alternative, each implemented the Proponents' proposal at varying degrees. Alternative A extended current management practices in the PAPA through 2011, including seasonal restrictions. Alternatives B, C, and D included year-round development through 2025, but in different core areas, with Alternatives C and D both having additional development areas. Alternative E assumed a slower pace of development, with development occurring through 2033, and included the seasonal restrictions but provided for additional well pads. See, e.g., AR 49047-50. Given the decision the BLM faced — that is, whether or not to act upon the lease-holders' proposal — it was reasonable to examine different ways in which that proposal could be implemented compared against a baseline of no action. See, e.g., Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 20 (1976) ("The statute, however, speaks solely in terms of Proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions."). The agency's objective did not involve reducing development, and thus the BLM's decision to omit a scaled-back development alternative from its analysis did not violate NEPA.
c. BLM took a "hard look" at impact on hunting and sage grouse as a whole.
As discussed above, "[n]either [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe, 427 U.S. at 410 n. 21. Instead, the court's role "is to insure that the agency has taken a `hard look' at the environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of action to be taken.'" Id. (citation omitted). To say the least, this is not the first time this Court has had to evaluate the BLM's actions as they relate to protecting wildlife in this area of the country. See Theodore Roosevelt Conservation Partnership v. Salazar ("TRCP"), 605 F. Supp. 2d 263, 276 (D.D.C. 2009). Once again, BLM, for the following reasons, easily complied with its legal obligations set forth by Congress.
i. Hunting
TRCP argues that "nowhere does BLM analyze how continued declines in big game and sage-grouse in the PAPA (expected under all alternatives) will affect the number of hunting and related recreational activities that will continue to be afforded in around the PAPA." Pl.'s Mot. 37. In particular, plaintiff claims that the failure to inform hunters of "how the project might affect the number of hunting opportunities they might be afforded if game populations decrease or collapse," or "what the WGFD might do with regard to the issuance of permits" constitute a failure by the BLM to take a hard look at the environmental consequences of its proposed action. Pl.'s Opp'n/Reply 17. I disagree.
In the 2008 SEIS, the BLM analyzed three sources of data for recreation-days spent hunting, including BLM data, WGFD data, and USFWS state-wide data. See AR 49147-49. The BLM segregated the available data and found that days spent hunting both state-wide and in the vicinity of the PAPA had been declining, but days spent hunting within the PFO Administrative Area had slightly increased.
A "recreation-day" is "one day spent by one person recreating." AR 49147.
"The PAPA comprises about 21 percent (198,037 acres) of the total PFO Administrative Area (approximately 930,000 acres)." AR 49147.
More importantly, however, the BLM considered the project's effect on big game as well as game birds. Indeed, it would seem impossible to analyze the ramifications of proposed development on hunting without analyzing its impact on wildlife, and particularly big game and game birds, the objects of the hunt. The 2008 SEIS contains a lengthy evaluation of the potential impact of the proposed development on wildlife generally. See AR 49228-49247. It discussed population and migration trends for several big game species, such as pronghorn, mule deer, and elk, and evaluated the extent to which each species' habitat coincided with the PAPA and its response to increased development thus far. For example, the BLM noted that increased well pad development was likely to displace wintering mule deer to less-developed areas, which may not be as suitable. AR 49236. The SEIS goes on to set out a detailed analysis of the potential impacts of each alternative on each form of wildlife in the PAPA. See AR 49405-26. Ultimately the BLM concluded that "[d]ecreased hunting opportunities are expected in the PAPA with decreased abundance of big game and upland game birds as the density of wellfield development increases." AR 48993.
In sum, the BLM's extensive discussion of wildlife, and the proposed development's effects thereon, as well as its conclusions regarding hunting, constitute a hard look that undoubtedly satisfies the requirements of NEPA. ii. Sage grouse as a whole
TRCP also claims that the BLM failed to take a hard look at the impacts on the sage grouse species (as opposed to the populations of sage grouse directly within and surrounding the PAPA), which has been classified as sensitive and is close to being endangered. See Pl.'s Mot. 38-39. The BLM, plaintiff argues, was required by its own manual "to evaluate the potential for the 2008 ROD to hasten or otherwise contribute to the species' listing [under the Endangered Species Act]." Id. 40. Again, I disagree.
On March 12, 2010, plaintiff "notified the Court that the U.S. Fish and Wildlife Service had concluded its 12-month review of the status of the Greater sage-grouse under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq." and determined that "listing the greater sage-grouse (rangewide) is warranted, but precluded by higher priority listing actions." Pl.'s Notice of Supplemental Authority [#38] 1 (internal quotation omitted).
While NEPA may require a "cumulative impact analysis," or an assessment of "the impact the proposed project will have in conjunction with other projects in the same and surrounding areas," TRCP, No. 09-5162, slip op. at 3 (emphasis added), it does not require an unbounded analysis of an entire species range as the plaintiff here contends. Compare Oregon Natural Res. Council v. Marsh, 52 F.3d 1485 (9th Cir. 1995) (requiring cumulative impact analysis on fish from all dams in the area) with Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir. 2003) (upholding limited geographic scope of grizzly bear analysis). In Selkirk, the Ninth Circuit held that the Forest Service's decision to limit its analysis of a project on grizzly bears to a specific geographic area satisfied NEPA, noting that the agency was "allowed to consider `practical considerations of feasibility' in its selection of a geographic scope for an EIS." 336 F.3d at 960 (quoting Kleppe, 427 U.S. at 412).
The sage grouse species range extends into 11 states and 2 Canadian provinces. W. Watershed Project v. Fish and Wildlife Serv., 535 F. Supp. 2d 1173, 1177 (D. Idaho 2007); see also Pl.'s Notice of Supplemental Authority [#38], Ex. A at 11 (table of estimated sage grouse populations across 11 states and Canada). In this case, the BLM evaluated the project's potential impacts on sage grouse within and around the PAPA. As in Selkirk, I find that the BLM's decision to limit the geographic scope of its analysis is entitled to deference, and that it had no obligation to assess the impact on the sage grouse species as a whole. Thus, TRCP's claim on this ground must also fail.
Moreover, the BLM's analysis of the impacts on sage grouse within the PAPA was complete. First, the BLM took into account the fact that increased development in the PAPA was likely to have severe effects on the already-declining sage grouse population. See, e.g., AR 49411-13 (discussing declines in sage grouse population and negative effects of wellfield development and associated surface disturbances); AR 49425 ("Throughout their range, greater sage-grouse have been adversely affected by habitat loss due to agriculture, energy development, rural and urban housing, and roads, as well as by habitat fragmentation from fences and powerlines. . . . Cumulative impact to sagebrush by the Alternatives is expected to be substantial.").
Second, the BLM did consider the comments of the FWS with respect to sage grouse. The FWS recommended greater protection of the sage grouse habitat consistent with the objectives of the 2000 Memorandum of Understanding between the BLM and the Western Association of Fish and Wildlife Agencies. AR 51279. The BLM directly responded to this comment, noting that those objectives could not be met under intensive natural gas development. AR 29784. The plaintiff suggests that because FWS has expertise in wildlife management, BLM was required to defer to FWS's comment. But that is not so. "Although an agency should consider the comments of other agencies, it does not necessarily have to defer to them when it disagrees." TRCP, 605 F. Supp. 2d at 276 (quoting Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th Cir. 1999)). As the defendants point out, BLM's reasoned disagreement that the sage grouse habitats could not be fully protected consistent with the existing lease rights easily satisfies NEPA's hard look requirement.
d. BLM's discussion of mitigation satisfies NEPA.
TRCP's last claim with respect to the 2008 ROD is that the BLM failed to properly acknowledge the collapse of AEM under the 2000 ROD and to include a meaningful discussion of monitoring and mitigation requirements in the 2008 SEIS. Though NEPA requires that an EIS contain a detailed description of mitigation measures "to ensure that environmental consequences have been fairly evaluated, . . . it would be inconsistent with NEPA's reliance on procedural mechanisms — as opposed to substantive, result-based standards — to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act." Robertson, 490 U.S. at 352-53 (citation omitted); see also TRCP, No. 09-5162, slip op. at 4 ("NEPA does not require agencies to discuss any particular mitigation plans they might put in place, nor does it require agencies — or third parties — to effect any.") (internal quotations omitted). Instead, an agency's discussion of mitigation measures need only be "reasonably complete." Robertson, 490 U.S. at 352. As the defendants point out, the allegedly deficient implementation of AEM and malfunctioning of the PAWG under the 2000 ROD does not affect the BLM's otherwise detailed mitigation plans set out in the 2008 ROD. The mitigation plans the agency laid out in the SEIS are discussed above; because these plans are, at a minimum, "reasonably complete," the BLM did not violate NEPA in its discussion of mitigation.
C. 2000 ROD
Finally, TRCP argues that the BLM's 2000 ROD violated both NEPA and FLMPA because AEM was never implemented, and seeks declaratory relief as to such. However, I decline to address these claims because the 2000 ROD was superseded in its entirety by the 2008 ROD, rendering these claims moot. See AR 48901.
"[A] federal court is authorized only to adjudicate actual, ongoing controversies, and thus may not give opinions upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it." Beethoven.com LLC v. Librarian of Congress, 394 F. 3d 939, 950 (D.C. Cir. 2005) (quotations omitted). "In general a case becomes moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481 (1982) (quotation omitted). In cases such as this, where the plaintiff seeks only declaratory relief, a question is moot unless judicial pronouncement will affect the defendant's behavior "towards the plaintiff." Hewitt v. Helms, 482 U.S. 755, 761 (1987) ("The real value of the judicial pronouncement — what makes it a proper judicial resolution of a `case or controversy' rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff."). Accordingly, if a plaintiff disputes an already-completed action, a request for declaratory relief is moot because judicial pronouncement can no longer alter the defendant's behavior. See Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006) (holding claim that BLM memo was issued in violation of NEPA moot because memo had expired). TRCP seeks to have the Court declare that the BLM violated NEPA and FLMPA by failing to implement the mitigation procedures described in the 2000 ROD. Am. Compl. at 44. However, TRCP's claims concern a decision that has been superseded and thus ceases to have any effect. Cf. Fund for Animals, Inc. v. Hogan, 428 F.3d 1059, 1064 (D.C. Cir. 2005) (finding moot claims regarding a FWS letter that was superseded in full by a belated 90-day finding). Accordingly, TRCP's claims based on the BLM's actions under the 2000 ROD are moot.
TRCP argues that its claim is not moot because "the Court can effectuate a partial remedy." Pl.'s Opp'n/Reply 7. But both in its pleadings and at oral argument, TRCP failed to articulate what partial remedy it seeks with respect to the 2008 ROD. Instead, TRCP seeks suspension or modification of the 2008 ROD to redress the alleged wrongdoing it claims occurred in the implementation of the 2000 ROD. Thus, this Court would have to find that both the 2000 ROD and the 2008 ROD were unlawfully implemented before the Court can fashion the relief plaintiff seeks. However, for the reasons discussed above, I find that the BLM's adoption of the 2008 ROD lawful, leaving the Court with no remedy to address any alleged NEPA or FLMPA violations with respect to the 2000 ROD.
TRCP relies on two Tenth Circuit cases to support its claim. Pl.'s Opp'n/Reply 15-16 (citing Utah Env't Cong. v. Russell, 518 F.3d 817 (10th Cir. 2008) and Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426 (10th Cir. 1996)). However, in both of those cases, an ongoing aspect of the completed agency decision at issue would continue to affect the plaintiffs. For example, in Utah Environmental Congress, the plaintiff challenged the Forest Service's decision to use a salt as a dust abatement mechanism. 518 F.3d at 823. Although the Forest Service contracted for just one application of salt, its Environmental Assessment (EA) called for road salt application "as needed." Id. at 824. Accordingly, the Tenth Circuit found that plaintiff's claims were not moot because plaintiff was subject to continued application of road salt so long as the EA remained in effect. Id. at 825. Similarly, in Airport Neighbors Alliance, the Tenth Circuit found that a challenge to an EA permitting expansion of an airport runway (that had been completed) was not moot because it could address "the environmental impacts resulting from the enhanced use of the runway." 90 F.3d at 429. I find these cases unpersuasive, however, because unlike in those cases, TRCP is no longer subject to activity authorized by the agency decision, as the agency decision at issue — the 2000 ROD — has been superseded. Instead, all current activity in the PAPA is authorized by the 2008 ROD.
CONCLUSION
For all the foregoing reasons, the plaintiff's Motion for Summary Judgment is DENIED, and the federal defendants' and defendant-intervenors' Cross Motions for Summary Judgment are GRANTED. An appropriate Order will accompany this memorandum opinion.