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Wilderness Soc'y v. Wisely

ELR Citation: 37 ELR 20215
Nos. No. 06-cv-00296, (D. Colo., 08/06/2007)

A district court held that the Bureau of Land Management (BLM) violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) in connection with its September 2005 decision to lease 32,000 acres of land in Colorado for oil and gas development. Although BLM did not formally consult with the U.S. Fish and Wildlife Service (FWS) under the ESA in advance of its decision to resume leasing on lands where the federally protected hookless cactus or its habitat is found, the violation was harmless in light of the informal consultation that occurred between the agencies two months later. Requiring BLM and FWS to confer again would not serve any meaningful purpose. In addition, the plaintiffs failed to show that FWS had an obligation to “emergency list” the DeBeque phacelia because the proposed leasing threatened the plant's habitat. However, BLM—and FWS—violated the ESA in finding, after informal consultation, that awarding the leases was not likely to affect the hookless cactus. The agencies adequately considered the effect that future development would have on the cactus, but they did not consider the effects that development would have outside the “action area”—all 16 parcels to be leased, not just the nine parcels known to contain hookless cactus. Development on other parcels might have impacts that affect the hookless cactus in ways that development on the nine parcels themselves might not. This error was not harmless. FWS and BLM must confer under the ESA with regard to the effects of the decision to resume leasing on the entire action area. Until sufficient conference takes place, BLM is enjoined from taking any further action regarding or giving effect to any lease issued as a result of its September 2005 decision. BLM also violated NEPA because the environmental assessment (EA) does not adequately explain why the "no surface occupancy" alternative was dropped. The court, therefore, set aside the EA. By extension, the finding of no significant impact, which assesses the environmental impact of the action chosen by the EA, was set aside as well.