Theodore Roosevelt Conservation Partnership v. Salazar

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 20, 2011          Decided November 18, 2011

                        No. 10-5386

   THEODORE ROOSEVELT CONSERVATION PARTNERSHIP,
                   APPELLANT

                              v.

 KENNETH LEE SALAZAR, IN HIS OFFICIAL CAPACITY AS THE
 SECRETARY OF THE UNITED STATES DEPARTMENT OF THE
                  INTERIOR, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:08-cv-01047)



    Thomas R. Wilmoth argued the cause for appellant. With
him on the briefs was Donald G. Blankenau.

    Robert H. Oakley, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for federal appellees. R.
Craig Lawrence, Assistant U.S. Attorney, and Justin R. Pidot
and David C. Shilton, Attorneys, U.S. Department of Justice,
entered appearances.
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    John F. Shepherd argued the cause and filed the brief for
appellees QEP Resources, Inc., SWEPI, LP, and Ultra
Resources, Inc.

     James Kaste, Senior Assistant Attorney General, Office
of the Attorney General for the State of Wyoming, and Affie
Ellis, Assistant Attorney General, were on the brief for amicus
curiae State of Wyoming in support of appellees.

    Before: SENTELLE, Chief Judge, ROGERS and GRIFFITH,
Circuit Judges.

    Opinion for the Court filed by Chief Judge SENTELLE.

     SENTELLE, Chief Judge: The Pinedale Anticline Project
Area (the PAPA) consists of a little over 198,000 acres of
federal, state, and private land in western Wyoming. The
Bureau of Land Management (BLM or the Bureau) manages
roughly 80 percent of this land, which contains the third-
largest natural gas field in the United States. In 2000, the
Bureau issued a Record of Decision (2000 Record of Decision
or 2000 ROD) meant to guide the management of the first
substantial development of the PAPA’s natural gas resources.
In 2008, the Bureau adopted a new Record of Decision (2008
Record of Decision or 2008 ROD), which, among other
things, authorized the development of more natural gas wells
than the earlier Record of Decision had sanctioned and
provided for management and mitigation of the development.
Theodore Roosevelt Conservation Partnership (TRCP), an
association including members who pursue recreational
hunting in the PAPA, filed for declaratory and injunctive
relief in the district court, arguing that the Bureau’s 2008
Record of Decision violated the Federal Land Policy and
Management Act; that the accompanying environmental
impact statement (EIS) violated the National Environmental
                              3

Policy Act; and that the 2000 Record of Decision violated
both acts. The district court granted summary judgment for
the Bureau. TRCP appeals from that judgment. We affirm
the judgment of the district court.

                    I. Legal Framework

A. The National Environmental Policy Act

     The National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. § 4321 et. seq., mandates that federal agencies
“consider fully the environmental effects of their proposed
actions.” Theodore Roosevelt Conservation P’ship v. Salazar,
616 F.3d 497, 503 (D.C. Cir. 2010). As is well established,
NEPA is “essentially procedural.” Vermont Yankee Nuclear
Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519,
558 (1978). It does not mandate “particular substantive
environmental results”; rather, it “focus[es] Government and
public attention on the environmental effects of proposed
agency action.” Marsh v. Or. Natural Res. Council, 490 U.S.
360, 371 (1989). Put simply, NEPA ensures “‘a fully
informed and well-considered decision, not necessarily’ the
best decision.” Theodore Roosevelt Conservation P’ship, 616
F.3d at 503 (quoting Vermont Yankee, 435 U.S. at 558). To
this end, NEPA requires that an agency prepare an EIS for any
“major Federal action[] significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(2)(C).

     The EIS is a detailed analysis, prepared with expert
assistance, of the projected environmental impact of a
proposed major federal action.        Theodore Roosevelt
Conservation P’ship, 616 F.3d at 503 (citing 42 U.S.C.
§ 4332(2)(C)).     The EIS must explain the action’s
environmental impact as well as “any adverse environmental
effects which cannot be avoided should the proposal be
                               4

implemented.”     42 U.S.C. § 4332(2)(C)(i), (ii).        This
discussion must address the “relevant issues and opposing
viewpoints” in sufficient detail to assure adequate evaluation
of a proposed action’s environmental effects. Nevada v.
Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006).

     At the “heart” of the EIS is the agency’s evaluation of the
potential environmental impacts of all “reasonable
alternatives” for completing the action. City of Alexandria v.
Slater, 198 F.3d 862, 866 (D.C. Cir. 1999) (quoting 40 C.F.R.
§ 1502.14). The EIS must “inform decisionmakers and the
public of the reasonable alternatives which would avoid or
minimize adverse impacts or enhance the quality of the
human environment.” 40 C.F.R. § 1502.1. The range of
reasonable alternatives must include “technically and
economically practical or feasible” alternatives. 43 C.F.R.
§ 46.420(b). This range is “delimit[ed]” by the agency’s
reasonably defined goals for the proposed action. City of
Alexandria, 198 F.3d at 867 (quoting Citizens Against
Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir.
1991)).

B. The Federal Land Policy and Management Act

     The Bureau manages public lands pursuant to the Federal
Land Policy and Management Act of 1976 (FLPMA), 43
U.S.C. § 1701 et. seq. FLPMA mandates that the Bureau
“manage the public lands under principles of multiple use and
sustained yield.” Id. § 1732(a). Multiple use management
entails balancing competing uses of land, “including, but not
limited to, recreation, range, timber, minerals, watershed,
wildlife and fish, and [uses serving] natural scenic, scientific
and historical values.” 43 U.S.C. § 1702(c). Achieving a
sustained yield “requires [the Bureau] to control depleting
uses over time, so as to ensure a high level of valuable uses in
                               5

the future.” Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 58 (2004). In managing public lands according to these
overarching principles, the Bureau must “take any action
necessary to prevent unnecessary or undue degradation of the
lands.” 43 U.S.C. § 1732(b).

                       II. Background

A. The Pinedale Anticline Project Area

     The PAPA encompasses just over 198,000 acres of
federal, state, and private land in western Wyoming. It
contains what is now considered the third-largest natural gas
field in the United States (Pinedale Field). The PAPA also
provides other natural resources, including recreational
opportunities and wildlife habitat. In particular, the PAPA
supports part of the “winter range” for mule deer and
pronghorn, which serves as survival habitat during harsh
winter conditions. The PAPA also provides year-round
habitat for part of a significant population of the greater sage-
grouse. This habitat includes mating-display grounds called
leks as well as brood-rearing areas and wintering areas. Mule
deer, pronghorn, and sage-grouse are game species of
particular interest to this region’s hunters.

     The Bureau manages the roughly 80 percent of the
federally owned land and resources in the PAPA. The
government has leased most of its mineral resources,
including most of the Pinedale Field, to oil and gas companies
(the Operators). Energy development in the PAPA remained
negligible until the 1990s, when new drilling technology
allowed for commercially practicable recovery of the PAPA’s
natural gas.
                             6

B. The 2000 Record of Decision

     Faced with increasing development interest, the Bureau
released a Record of Decision in 2000 authorizing significant
expansion of natural gas development in the PAPA. See
BUREAU OF LAND MANAGEMENT, RECORD OF DECISION FOR
PINEDALE ANTICLINE OIL AND GAS EXPLORATION AND
D E VELOPMENT P ROJECT E NVIRONMENTAL I M P A C T
STATEMENT (July 2000) (2000 ROD). The 2000 Record of
Decision required monitoring and mitigation measures
intended to preserve the PAPA’s other natural resources.
These measures included, among other things, restrictions on
development tied to the seasonal needs of affected species,
one-quarter-mile buffers around all sage-grouse leks, and a
formal process called Adaptive Environmental Management
(AEM) intended to monitor development and respond to
adverse environmental impacts as they arose.

     Over the next several years, development increased at a
faster-than-predicted rate. Several Operators requested, and
the Bureau approved, a series of exceptions to seasonal
restrictions on development as provided for in the 2000
Record of Decision. Wildlife populations declined during this
period, due at least in part to the increased natural gas
development and the concomitant increase in human
presence.     In 2005, the Operators proposed a new
development plan that provided for additional wells, year-
round drilling (i.e., lifting the seasonal restrictions on
development introduced by the 2000 Record of Decision), and
a concentrated development scheme.

C. The 2008 EIS

    In response to the Operators’ proposal, the Bureau
prepared and issued a draft supplemental EIS in 2006 that
                             7

analyzed three alternatives addressing the Operators’
proposal. Under Alternative A, the “no action” alternative,
the Bureau would reject the Operators’ proposal and continue
management under the 2000 Record of Decision. Alternative
B would essentially implement the proposal, including year-
round drilling, 4,399 additional wells (drilled from 600 well
pads), concentrated development, and mitigation measures.
Alternative C was similar to Alternative B, but would
decrease the core drilling area and specify where year-round
drilling could not occur rather than specify only where year-
round drilling could occur.

     After receiving public and governmental input, the
Bureau issued a revised draft supplemental EIS that included
the three alternatives from the draft supplemental EIS along
with two additional alternatives. Alternative D, the Bureau’s
preferred alternative, built upon Alternative C and added
further mitigation measures and voluntary suspension of
mineral leases on the land bordering the core area (the PAPA
flanks). Alternative E also started with Alternative C but
reduced the pace of development, retained the seasonal
restrictions on development implemented by the 2000 Record
of Decision, and authorized the construction of more well
pads.

     The Bureau issued the final EIS on June 27, 2008. See
BUREAU OF LAND MANAGEMENT, FINAL SUPPLEMENTAL
ENVIRONMENTAL IMPACT STATEMENT FOR THE PINEDALE
ANTICLINE OIL AND GAS EXPLORATION AND DEVELOPMENT
PROJECT (June 2008) (2008 EIS). The 2008 EIS states that the
Bureau’s purpose and need was “to act upon the [Operators’]
proposal to revise the PAPA ROD to expand the level of
development by drilling 4,399 new producing wells and to
relax seasonal restrictions in certain areas[,] . . . with
compensating protections for wildlife through limitation of
                              8

activity in other areas and additional mitigation measures in
and outside of the PAPA.” 2008 EIS at 1-9. It details the five
alternatives addressing the Operators’ proposal (Alternatives
A-E), with Alternative D as the Bureau’s preferred
alternative.

D. The 2008 Record of Decision

     In September 2008, the Bureau adopted a Record of
Decision based on its preferred Alternative D. BUREAU OF
LAND MANAGEMENT, RECORD OF DECISION FOR THE
SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT,
PINEDALE ANTICLINE OIL AND GAS EXPLORATION AND
DEVELOPMENT PROJECT (September 2008) (2008 ROD). By
its terms, the 2008 Record of Decision superseded the 2000
Record of Decision. It authorized development of up to 4,399
wells on no more than 600 well pads (down from the 700
producing well pads authorized by the 2000 Record of
Decision). The 2008 Record of Decision also included the
following mitigation measures intended to minimize and
offset the environmental impact of development:

    •   Cessation of seasonal restrictions on development for
        five development areas in the “core area” of the
        PAPA, which makes up 23 percent of the PAPA,
        along with concentrated development in the core
        area.

    •   “Geographically phased” development within each
        core development area—i.e., concentrated
        development that proceeds in stages in smaller areas
        rather than all at once.

    •   Voluntary suspension of the Operators’ mineral
        leases on the PAPA flanks, and, for all but one
                              9

        Operator, a prohibition on new development on the
        flanks even beyond the five-year period until
        comparable acreage in the core area has been
        returned to functional wildlife habitat.

    •   Various measures intended to reduce human impact,
        including directional drilling (which allows for more
        wells on each well pad and thus fewer well pads), a
        liquids-gathering system to reduce truck traffic,
        installation of computer-controlled systems for some
        Operators, and busing of work crews.

    •   A monitoring and mitigation fund “will be used for
        both on-site and off-site mitigation and project-
        related activities in the PAPA vicinity including
        additional air quality monitoring, additional wildlife,
        livestock, vegetation, and reclamation.” 2008 ROD
        at 17. Operators were required to contribute at least
        $4.2 million initially, and they must pay into the fund
        for each well drilled up to a total of $36 million.

    •   A wildlife monitoring and mitigation matrix
        detailing measures for monitoring wildlife in the
        PAPA and sequential mitigation responses based on
        changes identified by that monitoring. The matrix
        includes triggers for mitigation for mule deer when
        the population declines from 2005–2006 levels by 15
        percent.

    Based on these mitigation measures—particularly the
concentration of development in both area and duration—the
Bureau reasoned that the 2008 Record of Decision would
“afford superior crucial winter range and greater sage-grouse
habitat in the long-term through reducing disturbance, both to
                               10

habitat and that caused by human presence, during the
production phase.” 2008 ROD at 24.

E. Procedural History

     TRCP filed in the district court a complaint seeking
declaratory and injunctive relief against the Department of the
Interior and the Bureau. QEP Resources, Inc., SWEPI, LP,
and Ultra Resources, Inc.—three of the primary lessees of
federally owned mineral rights in the PAPA—intervened as
defendants. The district court granted summary judgment in
favor of the Department of the Interior, the Bureau, and the
intervenors. Theodore Roosevelt Conservation P’ship v.
Salazar, 744 F. Supp. 2d 151, 165 (D.D.C. 2010). TRCP
appeals.

                         III. Analysis

     We review de novo the district court’s grant of summary
judgment. Theodore Roosevelt Conservation P’ship, 616 F.3d
at 507. As neither FLPMA nor NEPA provides a private right
of action, we review the Bureau’s actions under the
Administrative Procedure Act (APA), 5 U.S.C. § 501 et seq.
Theodore Roosevelt Conservation P’ship, 616 F.3d at 507.
The APA requires that a reviewing court set aside any agency
action, finding, or conclusion that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.”
Id. (quoting 5 U.S.C. § 706(2)(A)).

     TRCP advances several arguments for invalidating
various Bureau actions and reversing the district court’s grant
of summary judgment:
                             11

    (1) the Bureau violated NEPA by not including a
        reasonable range of alternatives in the 2008 EIS that
        supports the 2008 Record of Decision;

    (2) the Bureau failed adequately to address in the 2008
        EIS the proposed development’s impact on hunting,
        thus failing to give hunting impacts the “hard look”
        review NEPA requires;

    (3) the Bureau’s determination that the 2008 Record of
        Decision’s mitigation measures will prevent
        “unnecessary or undue degradation” of the PAPA, as
        FLPMA requires, was arbitrary and capricious; and

    (4) the Bureau violated FLPMA and NEPA by failing to
        enforce the 2000 Record of Decision, and the district
        court erred when it determined that these claims
        were moot.

We address each argument in turn.

A. The Inclusion of a Reasonable Range of Alternatives in
the 2008 EIS

     The Bureau considered in the 2008 EIS five alternatives
addressing the Operators’ proposal for expanded development
of the PAPA. TRCP argues that by omitting an alternative
calling for scaled-back development to comport with the 2000
Record of Decision, the Bureau violated NEPA regulations
that mandate evaluation of “all reasonable alternatives.” See
40 C.F.R. § 1502.14.

    Regulations implementing NEPA (promulgated by the
Council on Environmental Quality) require that an agency
developing an EIS evaluate “all reasonable alternatives,”
                               12

including a no-action alternative. Id. An alternative is
“reasonable” if it is objectively feasible as well as “reasonable
in light of [the agency’s] objectives.” City of Alexandria, 198
F.3d at 867; see also 43 C.F.R. § 46.420(b) (defining
“reasonable alternatives” as those alternatives “that are
technically and economically practical or feasible and meet
the purpose and need of the proposed action”).

     Because “[t]he goals of an action delimit the universe of
the action’s reasonable alternatives,” Citizens Against
Burlington, 938 F.2d at 195, determining whether an agency
has included all reasonable alternatives requires us to decide
first whether the agency has reasonably defined its stated
goals. See City of Alexandria, 198 F.3d at 867. An agency
determining its objectives for an action “should consider the
needs and goals of the parties involved in the application or
permit as well as the public interest.”         43 C.F.R. §
46.420(a)(2). But “[i]t is the [B]ureau’s purpose and need for
action that will determine the range of alternatives and
provide a basis for the selection of an alternative in a
decision.” Id. (emphasis added). The agency should also
“always consider the views of Congress” to the extent they
are discernible from the agency’s statutory authorization and
other directives. Citizens Against Burlington, 938 F.2d at
196.

    Importantly, we review both an agency’s definition of its
objectives and its selection of alternatives under the “rule of
reason.” Citizens Against Burlington, 938 F.2d at 195-96; see
also City of Alexandria, 198 F.3d at 867 (stating that both of
these inquiries demand “considerable deference to the
agency’s expertise and policy-making role”). That is, as long
as the agency “look[s] hard at the factors relevant to the
definition of purpose,” we generally defer to the agency’s
reasonable definition of objectives.         Citizens Against
                              13

Burlington, 938 F.2d at 196. Of course, we will reject an
“unreasonably narrow” definition of objectives that compels
the selection of a particular alternative. Id. If the agency’s
objectives are reasonable, we will uphold the agency’s
selection of alternatives that are reasonable in light of those
objectives. Id.; City of Alexandria, 198 F.3d at 867.

     As noted, we begin by determining whether the Bureau
reasonably defined its objectives for this action. It did. The
EIS expressly states that the Bureau’s purpose and need was
“to act upon the Proponents’ proposal to revise the PAPA
ROD to expand the level of development by drilling 4,399
new producing wells and to relax seasonal restrictions in
certain areas.” 2008 EIS at 1-9. This objective was
reasonable under the circumstances: In light of the discovery
of significantly more recoverable natural gas in the PAPA
than had been anticipated, the Operators approached the
Bureau with a specific proposal that would permit recovery of
these resources while mitigating environmental impact.
Rather than choosing a broad or open-ended objective, the
Bureau reasonably chose to confine its goal simply to
addressing this proposal.

    Such an objective plainly takes into account the “needs
and goals of the parties involved” by directly addressing the
Operators’ proposal. See Citizens Against Burlington, 938
F.2d at 196 (“When an agency is asked to sanction a specific
plan . . . the agency should take into account the needs and
goals of the parties involved . . . .”).

     TRCP calls the Bureau’s stated objective “unreasonably
narrow” because it focuses only on the Operators’ need to
increase production, but TRCP misreads the Bureau’s explicit
statement of purpose and need. The Bureau does not state a
purpose to enact or adopt the Operators’ proposal to some
                               14

degree; rather, its purpose is to “act upon” that proposal. The
former language might be unreasonably narrow to the extent it
presupposes approval of the proposal, thereby limiting the
alternatives to be analyzed to only those that would enact the
proposal. See Citizens Against Burlington, 938 F.2d at 196.
The EIS, however, simply states that the Bureau’s intent was
to “act upon” the proposal—i.e., to decide whether to adopt
the proposal at all, and if so, to what degree. This objective
permits a reasonable range of alternatives that either reject the
proposal or adopt it to varying degrees or with alterations.

     TRCP would prefer that the Bureau choose a broader
purpose: “to manage the PAPA properly in light of eight years
of degradation that was inconsistent with its prior NEPA
projections and the 2000 ROD.” Appellants’ Reply Br. at 11.
TRCP seems primarily concerned that the Bureau did not
address, in this action, the decline in PAPA wildlife
populations that has occurred since 2000. But it is reasonable
for the Bureau to have chosen to tackle these declines first in
the context of the Operators’ proposal. Even if the Bureau
had determined after environmental analysis that the wildlife
declines necessitated a scaling back of development rather
than expansion or maintenance of the status quo, it could have
rejected the proposal using the alternatives it included (i.e.,
chosen the no-action alternative), and then, in a separate step,
initiated a plan of its own to address the declines as needed.
TRCP provides no authority suggesting that the Bureau was
required to lump together all possible management actions in
the 2008 EIS.

     Given the Bureau’s purpose for its action, it chose a
reasonable range of alternatives. The Bureau evaluated five
alternatives in the 2008 EIS addressing the Operators’
proposal. One alternative rejected the proposal, another
implemented the proposal in full, and three alternatives
                              15

implemented modified versions of the proposal that differed
primarily in the degree of mitigation required and the size of
the core area available for year-round drilling. The Bureau’s
preferred alternative altered the Operators’ proposal by
requiring additional mitigation measures and extracting a
commitment from the Operators to suspend their leases on the
PAPA flanks for at least five years to further the overall
mitigation scheme. Another alternative would have reduced
the pace of development in the PAPA by retaining the 2000
Record of Decision’s seasonal restrictions on development.

     These alternatives provided a reasonable range of
possible actions addressing the proposal. This range of
alternatives allowed the Bureau to “act upon” the proposal in
the most logical ways it could do so: by (1) rejecting the
proposal, (2) approving the proposal “as is,” or (3) approving
the proposal with some degree of modification. As the district
court stated, “[g]iven the decision the [Bureau] faced—that is,
whether . . . 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.” Theodore Roosevelt Conservation P’ship, 744 F.
Supp. 2d at 161.

     TRCP argues that the Bureau was required to analyze an
additional alternative that would cap or scale back
development and return wildlife populations that existed at
the adoption of the 2000 Record of Decision because the
Bureau’s original goal for managing the PAPA was to
maintain its wildlife populations at those levels. But TRCP’s
premise is flawed. TRCP relies on a statement in a wildlife
protection plan authored by a Bureau consultant, pursuant to
the 2000 Record of Decision, stating that the plan will “assist
land managers and project personnel in efforts to achieve and
maintain desired levels of wildlife populations on the PAPA
                              16

(e.g. pre-project levels).” However, as the Bureau correctly
points out, this is by no means a formal statement that the
Bureau’s management goal was or is to prevent any decline in
wildlife populations, nor does it serve as a binding mandate.
In fact, the 2000 Record of Decision itself explicitly aimed to
“allow[] for natural gas exploration and development while
continuing to provide for the existing principal and major uses
. . . for this area (e.g., domestic livestock grazing, fish and
wildlife habitat protection . . .).” 2000 ROD at 1. Nothing in
the record demonstrates that preventing all declines in
wildlife populations was ever the Bureau’s management
objective. And of course, more important, the 2008 EIS
confirms that the Bureau’s purpose for its present action was
limited to addressing the Operators’ specific proposal. The
Bureau selected a reasonable range of alternatives in light of
its purpose; it was under no obligation to include a scaled-
back-development alternative that would not “bring about the
ends of the federal action.” City of Alexandria, 198 F.3d at
867 (quoting Citizens Against Burlington, 938 F.2d at 195)
(internal quotation marks omitted).

B. Analysis of the Environmental Impact on Hunting in the
2008 EIS

    The 2008 EIS specifically identified as a public concern
the proposed development’s potential impact on hunting.
TRCP argues that the Bureau violated NEPA by failing
adequately to analyze the potential impact on hunting in the
PAPA.

    Under NEPA, an agency must take a “hard look” at the
environmental effects of its proposed action. Nevada v. Dep’t
of Energy, 457 F.3d 78, 92-93 (D.C. Cir. 2006). The focus of
the “hard look” doctrine is to “ensure that the agency has
adequately considered and disclosed the environmental
                              17

impact of its actions and that its decision is not arbitrary or
capricious.” Id. at 93 (citing Balt. Gas & Elec. Co. v. NRDC,
462 U.S 87, 97-98 (1983)). The rule of reason applies here as
well. Id. We have consistently declined to “‘flyspeck’ an
agency’s environmental analysis, looking for any deficiency
no matter how minor.” Id. (citations omitted).

     The Bureau sufficiently analyzed the proposed action’s
impact on hunting in its 2008 EIS. It recognized that big-
game hunting is a “major recreational activity in the PAPA”
and that “[v]arious game bird species” are also hunted. 2008
EIS at 3-49. The Bureau concluded that hunting opportunities
will decrease in the PAPA under any of its five alternatives
due to “decreased abundance of big game and upland game
birds from increased density of wellfield development and . . .
surface disturbance.” 2008 EIS at 2-62. The impact would
increase under alternatives B through E due to increased
surface disturbance. Id.

     Several parts of the record support this conclusion. First,
the Bureau indicated that “[i]t is generally assumed” that
“benefits-based recreation” like hunting will generally decline
in areas commonly used for such activities “when the
landscape and its qualities are changed by development.”
2008 EIS at 3-48. The Bureau cited “[n]oise, odor, increased
traffic, dust, changes in setting, and other competing factors
from development” as “intrusive” factors that cause
recreationists to avoid these areas. Id. The Bureau also stated
that “hunters may find it unsafe to use some areas because of
the density of development, or they may have a less rewarding
experience if project activities affect wildlife populations in
the area.” 2008 EIS at 4-54. It then pointed out that while
hunting recreation-days increased slightly in the Bureau
Pinedale Field Office Administrative Area, hunting
                              18

recreation-days in and near the PAPA declined from 2001 to
2006 during the first wave of development. 2008 EIS at 3-49.

     The Bureau also engages in detailed analysis of the
proposed development’s effects on the wildlife the TRCP
members hunt, including mule deer and greater sage-grouse.
This analysis concludes that surface disturbance and loss of
habitat function are likely to adversely impact the populations
of several game species. Given the direct and intuitive link
between a decrease in game species and a corresponding
decrease in opportunities to hunt those species, such an
analysis reasonably supports the Bureau’s conclusion that
hunting opportunities are likely to decrease. Taken as a
whole, the Bureau’s analysis of the proposed development’s
impact on game species and hunting opportunities is
“tolerably terse” rather than “intolerably mute.” See City of
Alexandria, 198 F.3d at 870-71. We conclude that the
Bureau’s discussion satisfies its hard-look mandate.

C. The Bureau’s Determination that the 2008 Record of
Decision Prevents Unnecessary or Undue Degradation

    The Bureau’s 2008 Record of Decision permits
significant expansion of energy development in the PAPA. It
also implements measures intended to mitigate the adverse
environmental effects of the development. TRCP asserts that
the 2008 Record of Decision violates FLPMA because these
measures will fail, leaving in place a development plan that
degrades the environment without mitigation.

     FLPMA requires that the Bureau, in managing public
lands, “take any action necessary to prevent unnecessary or
undue degradation of the lands.” 43 U.S.C. § 1732(b). The
Department of the Interior’s Board of Land Appeals has
interpreted “unnecessary or undue degradation” to mean the
                              19

occurrence of “something more than the usual effects
anticipated” from appropriately mitigated development.
Biodiversity Conservation Alliance, 174 I.B.L.A. 1, 5-6
(March 3, 2008). Application of this standard is necessarily
context-specific; the words “unnecessary” and “undue” are
modifiers requiring nouns to give them meaning, and by the
plain terms of the statute, that noun in each case must be
whatever actions are causing “degradation.” See, e.g., Utah v.
Andrus, 486 F. Supp. 995, 1005 n.13 (D. Utah 1979) (defining
“unnecessary” in the mining context as “that which is not
necessary for mining”) (emphasis added). Here, that action is
the development required to extract natural gas from the
PAPA’s formidable reserves. Our inquiry, then, is whether
the record supports the Bureau’s determination that the 2008
Record of Decision will implement sufficient measures to
prevent degradation unnecessary to, or undue in proportion to,
the development the Record of Decision permits.

     We also must view FLPMA’s “unnecessary or undue
degradation” standard in light of its overarching mandate that
the Bureau employ “principles of multiple use and sustained
yield.” 43 U.S.C. § 1732(a). While these obligations are
distinct, they are interrelated and highly correlated. The
Bureau must balance multiple uses in its management of
public lands, including “recreation, range, timber, minerals,
watershed, wildlife and fish, and [uses serving] natural scenic,
scientific and historical values.” 43 U.S.C. § 1702(c). It must
also plan for sustained yield—“control [of] depleting uses
over time, so as to ensure a high level of valuable uses in the
future.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
58 (2004). Thus, by following FLPMA’s multiple-use and
sustained-yield mandates, the Bureau will often, if not always,
fulfill FLPMA’s requirement that it prevent environmental
degradation because the former principles already require the
Bureau to balance potentially degrading uses—e.g., mineral
                              20

extraction, grazing, or timber harvesting—with conservation
of the natural environment. If the Bureau appropriately
balances those uses and follows principles of sustained yield,
then generally it will have taken the steps necessary to prevent
unnecessary or undue degradation.

     In light of FLPMA’s multiple-use and sustained-yield
mandates, the Bureau did not act arbitrarily or capriciously in
determining that the plan in the 2008 Record of Decision will
prevent unnecessary or undue degradation of the PAPA. In
adopting the 2008 Record of Decision, the Bureau recognized
the primary competing uses of the PAPA: the recovery of
natural gas from the third-largest natural gas field in the
continental United States and recreational use of the PAPA’s
other natural resources. Pursuant to its multiple-use mandate,
the Bureau decided to allow additional natural gas extraction
in the PAPA while implementing significant measures to
mitigate the degradation the Bureau conceded would be
necessary to allow significant recovery. The record supports
the Bureau’s determination that these mitigation measures
would be adequate to prevent degradation that is unnecessary
to, or undue in proportion to, the natural gas development that
the 2008 Record of Decision permits.

     The record shows that human presence constitutes the
primary source of harm to the game species with which TRCP
is primarily concerned. The mitigation scheme of the 2008
Record of Decision is geared towards reducing human
presence while still allowing for development. Indeed,
several parts of the mitigation scheme, including computer-
assisted remote monitoring of wells, directional drilling from
fewer well pads, busing of crews, centralized processing and
storage, and a liquids-gathering system, are intended to reduce
human presence in the PAPA year-round. The Bureau could
reasonably conclude that these mitigation measures would
                              21

adequately serve to prevent unnecessary or undue degradation
of wildlife by reducing harmful human presence. Indeed, the
Wyoming Game & Fish Department (WGFD) expressly
recommended these measures for precisely this purpose.
Letter from Terry Cleveland, Director, WGFD, to Matt
Anderson Pinedale Field Office, Bureau of Land Management
(Apr. 6, 2007) (WGFD Letter).

     Other measures required by the 2008 Record of Decision
also target human presence. The Record of Decision
concentrates development necessary to recover natural gas in
a core area of the PAPA while leaving undeveloped large
contiguous blocks of wildlife habitat, including critical winter
range, on the PAPA flanks. As well pads in the core area are
fully reclaimed, they are to be returned to functioning habitat.
Lifting seasonal development restrictions will accelerate this
habitat reclamation. Further, most of the Operators will only
be allowed to begin developing the flanks at the later of five
years or when comparable acreage in the core area is returned
to functional habitat.        This will leave 49,903 acres
undisturbed. WGFD recommended these steps because they
would benefit wildlife by “retaining the maximum amount of
functional habitat for wildlife over as much of the project area
as possible throughout delineation, development and
production of the field.” WGFD Letter. The Bureau could
reasonably conclude that this phased, accelerated
development scheme would aid in preventing unnecessary or
undue degradation by limiting the amount of human presence
and leaving functional habitat available at all times.

     In addition to these impact-reducing measures, the 2008
Record of Decision requires a monitoring and mitigation fund
for on- and off-site mitigation as needed. It also incorporates
a Monitoring and Mitigation Matrix that sets forth a sequence
of mitigation measures, some to be implemented immediately
                              22

and others to be used as a backstop in the event of further
wildlife declines.

    TRCP does not carry its burden of showing that the
Bureau acted arbitrarily and capriciously. TRCP points to
various statements in the record to support its assertion that
the mitigation measures the Bureau has implemented in the
2008 Record of Decision will fail, leaving in place
development without accompanying mitigation. As an initial
matter, however, TRCP failed to address several important
mitigation measures upon which the Bureau also relied to
make its determination. Further, as to the measures TRCP
does address, other statements in the record draw conclusions
contrary to TRCP’s. For example, TRCP contends that there
is no evidence that removing the seasonal restrictions on
development will benefit wildlife, but the same comment log
upon which TRCP relies for this assertion goes on to state that
past and ongoing studies have not been able to show that
continuing the seasonal restrictions will provide effective
mitigation either. Additionally, as the district court noted,
WGFD supported removing the seasonal restrictions on
development because the overall mitigation plan contained
“longer-term” and “significantly better” benefits for wildlife
than the measures in place in the 2000 Record of Decision.
WGFD Letter.

     Even where TRCP offers evidence that a particular
mitigation measure likely will be ineffective, it fails to
provide any other solution that still would permit significant
recovery of natural gas—a use FLPMA requires the Bureau to
balance with conservation. Specifically, TRCP argues that
there is no evidence that the Bureau’s one-quarter-mile buffer
for greater sage-grouse leks will prevent the sage-grouses
from abandoning their leks or attending in smaller numbers.
The Bureau concedes that one-quarter-mile buffers “will not
                              23

avoid adverse consequences to the greater sage grouse,” but
the record shows that TRCP’s recommended two-mile buffer
would prevent natural gas extraction in nearly the entire
PAPA. Again, FLPMA prohibits only unnecessary or undue
degradation, not all degradation.

     In sum, the Bureau could reasonably conclude that the
mitigation measures the 2008 Record of Decision implements,
which comport with WGFD recommendations and utilize
reasonably available technology, will prevent unnecessary or
undue degradation by (1) reducing the footprint and duration
of human presence, (2) providing funding for and oversight of
monitoring and mitigation, and (3) specifying additional
mitigation measures to be implemented if further declines in
wildlife populations are observed. TRCP’s arguments to the
contrary—pointing out the ineffectiveness of a few of the
specific mitigation measures in place while failing to offer
feasible alternatives that would still allow for significant
development and ignoring conflicting evidence in the
record—do not establish that the Bureau’s determination was
arbitrary or capricious. We conclude that the record supports
the Bureau’s determination that the measures implemented by
the 2008 Record of Decision will prevent unnecessary or
undue degradation of the PAPA.

D. Mootness of the Claims Based on Non-Enforcement of
the 2000 Record of Decision

     Before the district court, TRCP also alleged that the
Bureau violated FLPMA and NEPA by not adhering to
requirements found in the 2000 Record of Decision. The
district court deemed these claims moot because the 2008
Record of Decision superseded the 2000 Record of Decision.
TRCP asserts that the district court erred and that these claims
remain justiciable. We agree with the district court. TRCP’s
                              24

claims based on violations of the 2000 Record of Decision are
moot.

     Article III limits the jurisdiction of federal courts to
“actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305,
317-18 (1988). We have “no authority ‘to give opinions upon
moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in
issue in the case before it.’” Church of Scientology v. United
States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159
U.S. 651, 653 (1895)). If it becomes “impossible for the court
to grant ‘any effectual relief whatever’ to a prevailing party”
on a particular claim, that claim must be dismissed. Id.
(quoting Mills, 159 U.S. at 653).

     TRCP seeks relief for alleged FLPMA and NEPA
violations based on the Bureau’s failure to enforce the 2000
Record of Decision. But that Record of Decision no longer
exists; the Bureau’s 2008 Record of Decision superseded the
2000 Record of Decision “in its entirety.” 2008 ROD at 1. At
that time, it became impossible to grant any prospective relief
for a failure to enforce the 2000 Record of Decision. We can
neither invalidate, nor require the Bureau to adhere to, a
Record of Decision that has “disappeared into the regulatory
netherworld.” Nw. Pipeline Corp. v. FERC, 863 F.2d 73, 77
(D.C. Cir. 1988).

     TRCP suggests that its claims are not moot because we
can grant relief for violations stemming from the 2000 Record
of Decision by invalidating parts of the 2008 Record of
Decision and requiring the Bureau to rewrite it to mitigate any
degradation caused by those violations. That is, even if the
2008 Record of Decision is valid, TRCP argues that we
should nevertheless invalidate it if we find that the Bureau
violated NEPA or FLPMA in its execution of the superseded
                              25

2000 Record of Decision. This we cannot do. If the 2008
Record of Decision is valid, it is valid. We are not going to
invalidate a valid Record of Decision to remedy the alleged
non-enforcement of an earlier Record of Decision which has
no current force or effect.

     TRCP argues that even if these claims would otherwise
be moot, the mootness doctrine provides an exception for
them because the violations asserted are “capable of
repetition, yet evading review.” S. Pac. Terminal Co. v. ICC,
219 U.S. 498, 515 (1911). Even if the alleged violations
satisfy the “evading review” requirement, they are not
“capable of repetition.” An action is “capable of repetition”
only if there is a “reasonable expectation that the same
complaining party would be subjected to the same action
again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
The “same action” generally refers to “particular agency
policies, regulations, guidelines, or recurrent identical agency
actions.” Pub. Utilities Comm’n v. FERC, 236 F.3d 708, 715
(D.C. Cir. 2001). TRCP provides no reason to expect that its
members will again be subjected to the “same action.” It is
certainly unreasonable to expect the Bureau to repeat
violations based on the 2000 Record of Decision itself
because that Record of Decision has been superseded.
Moreover, even if a new and substantively distinct violation
based on the new and different 2008 Record of Decision could
be considered the “same action,” TRCP has provided no
evidence—beyond the alleged past violations of a superseded
Record of Decision—that the Bureau will commit any such
violation. Our general presumption that a federal agency will
follow its own regulations therefore stands, see Friends of
Earth, Inc. v. EPA, 446 F.3d 140, 148 (D.C. Cir. 2006), and
TRCP’s final argument that we should adjudicate its claims
based on the 2000 Record of Decision fails.
                           26

                     IV. Conclusion

     In short, the Bureau considered a reasonable range of
alternatives in the EIS addressing the proposal to expand
natural gas development in the PAPA. That EIS sufficiently
addressed the proposed action’s impact on hunting in the
PAPA. The record supports the Bureau’s determination that
the 2008 Record of Decision will prevent unnecessary or
undue degradation of the PAPA. Finally, TRCP’s claims
based on the Bureau’s alleged non-enforcement of the 2000
Record of Decision are moot. The judgment of the district
court is affirmed.