IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Transcription

1 Civil Action No. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO NATURAL RESOURCES DEFENSE COUNCIL; and WILDERNESS WORKSHOP; v. Plaintiffs, ED SCHAFER, in his official capacity as the Secretary of Agriculture; US FOREST SERVICE; ANTOINE DIXON, in his official capacity as Deputy Regional Forester, Resources, of the Rocky Mountain Region; MARY MORGAN, in her official capacity as Acting Forest Supervisor for the White River National Forest; DIRK KEMPTHORNE, in his official capacity as Secretary of the Department of the Interior; and BUREAU OF LAND MANAGEMENT; Defendants. COMPLAINT

2 INTRODUCTION 1. This case is a challenge to the actions of two federal agencies the Forest Service and the Bureau of Land Management ( BLM ) in approving oil and gas drilling on the western slope of the Rockies in Colorado without taking the steps required by federal law to protect air quality. 2. Since 2000, the Forest Service and BLM have approved thousands of drilling permits in the western slope area including the project challenged herein the Hell s Gulch North Phase 2 project ( the Project ) in the White River National Forest. 3. In order to manage the rapidly expanding oil and gas development in the area, the Energy Policy Act of 2005 established the interagency Glenwood Springs Energy Office. This office brought together staff from several federal agencies including the BLM and the Forest Service to work on proposed energy projects, planning and environmental analyses. 4. The Glenwood Springs Energy Office has initiated a revision to the Resource Management Plans ( RMPs ) governing the area. This revision has not yet been completed. Existing levels of oil and gas drilling exceed the levels planned for in the existing land use plans. Nevertheless, both BLM and the Forest Service continue to issue new leases and approve numerous drilling projects including the Project. 5. As a result of rapidly expanding oil and gas exploration and production, air pollution in the communities of Colorado s western slope has dramatically worsened. Monitoring of air quality in the area, such as in nearby Garfield County, has documented high levels of ozone. Health officials have become increasingly concerned about the harmful effects of the drilling rigs, compressor stations, dehydrators and diesel trucks that accompany oil and gas drilling. In 2

3 addition, the pristine air of the wilderness and ski areas in the nearby mountains has rapidly deteriorated. 6. Neither the Forest Service nor the BLM has completed the planning necessary to protect the natural resources they manage as required by the National Forest Management Act ( NFMA ) and the Federal Land Policy and Management Act ( FLPMA ). 7. Neither the Forest Service nor the BLM has adequately analyzed the cumulative effects of the development each agency has approved as required by the National Environmental Policy Act ( NEPA ). 8. Neither the Forest Service nor the BLM has taken the steps necessary to ensure compliance with air quality protections as required by the Clean Air Act, NFMA and FLPMA. 9. Because the Forest Service and BLM approved the Hell s Gulch drilling project without satisfying the planning, analysis and protection mandates of federal law, the project authorization must be set aside and vacated. JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201; the Administrative Procedure Act ( APA ), 5 U.S.C. 551 et seq.; and 28 U.S.C (federal question). The decision by the Forest Service approving the surface use plan of operation for the Hell s Gulch North Phase 2 project constitutes final agency action for purposes of APA review. The decision by the BLM approving the drilling permits for the Hell s Gulch North Phase 2 project also constitutes final agency action for purposes of APA review. 11. Venue is proper in this Court pursuant to 28 U.S.C because the events giving rise to the claims occurred within this judicial district; Defendants have offices in this district; 3

4 Plaintiffs have offices in this district; and the public lands and resources in question are located in this district. PARTIES 12. Plaintiff NATURAL RESOURCES DEFENSE COUNCIL ( NRDC ) is a non-profit environmental membership organization with more than 425,000 members throughout the United States. Over 11,000 of these members reside in Colorado. NRDC members use and enjoy public lands in Colorado, including the specific lands at issue, for a variety of purposes, including: recreation, solitude, scientific study, and conservation of natural resources. NRDC has had a longstanding and active interest in the protection of public lands in Colorado. NRDC filed comments on the draft Environmental Assessment for the Hell s Gulch Project. NRDC also filed an administrative appeal of the Hell s Gulch Decision and Finding of No Significant Impact. In addition, NRDC has worked to find solutions to air pollution in Colorado from oil and gas development including other projects in western and northeastern Colorado. NRDC brings this action on its own behalf and on behalf of its members. 13. Plaintiff WILDERNESS WORKSHOP is a nonprofit organization based in Carbondale, Colorado, whose mission is to protect and conserve the wilderness and natural resources of the White River National Forest and adjacent public lands. Wilderness Workshop engages in research, education, legal advocacy, and grassroots organizing to protect the ecological integrity of local landscapes and public lands. Wilderness Workshop focuses on the monitoring and conservation of air and water quality, wildlife species and habitat, natural communities, and lands of wilderness quality. Wilderness Workshop played an integral role in attaining wilderness 4

5 designation of the Hunter-Fryingpan area, the Collegiate Peaks area, and the Raggeds area, as well as doubling the size of the Maroon Bells-Snowmass Wilderness Area. Wilderness Workshop has long advocated for the protection of wilderness character in the West Elk, Eagle s Nest, and Flat Tops Wilderness Areas. Members of Wilderness Workshop use and enjoy public lands in the White River National Forest including the specific lands at issue here for a variety of purposes including recreation and scientific study. Wilderness Workshop filed comments on the draft Environmental Assessment for the Hell s Gulch Project. Wilderness Workshop also filed an administrative appeal of the Hell s Gulch Decision and Finding of No Significant Impact. 14. Defendant ED SCHAFER is sued in his official capacity as Secretary of the Department of Agriculture. In that capacity he is responsible for ensuring that the Department and the agencies within the Department, including the Forest Service, comply with all applicable laws and regulations, including the Clean Air Act, NFMA and NEPA. 15. Defendant UNITED STATES FOREST SERVICE is the federal agency responsible for managing the 2.3 million acres of the White River National Forest including the wilderness areas within it. The Forest Service is the federal agency responsible for approving surface use plans of operation for oil and gas drilling projects on National Forest lands. 16. Defendant ANTOINE DIXON is sued in his official capacity as Deputy Regional Forester, Resources, for the Rocky Mountain Region. In that capacity he issued the final administrative determination of the Department of Agriculture of the Hell s Gulch North Phase 2 project at issue in this case. 5

6 17. Defendant MARY MORGAN is sued in her official capacity as Acting Forest Supervisor for the White River National Forest. In that capacity she approved the environmental analysis and surface use plan of operations at issue in this case. 18. Defendant DIRK KEMPTHORNE is sued in his official capacity as Secretary of the Department of the Interior. In that capacity he is responsible for ensuring that the Department and the agencies within the Department, including the Bureau of Land Management, comply with all applicable laws and regulations, including the Clean Air Act, FLPMA and NEPA. 19. Defendant BUREAU OF LAND MANAGEMENT is the agency within the Department of the Interior directly responsible for carrying out the Department s obligations under statutes and regulations governing oil and gas exploration, leasing, and development. The BLM manages approximately 8.4 million acres in Colorado along with 29 million acres of subsurface mineral estate. BLM approved the drilling permits at issue in this case. STATUTORY AND REGULATORY FRAMEWORK National Forest Management Act 20. Through the NFMA, 16 U.S.C et seq., Congress established a two-step process for managing the National Forests. First, NFMA directs the Forest Service to prepare and implement comprehensive land management plans for each national forest. 16 U.S.C. 1604(b). These Land and Resource Management Plans (or Forest Plans ) determine, among other things, the availability and suitability of lands for resource development and preservation, and wildlife and habitat conservation requirements, for a ten to fifteen year period. 16 U.S.C Second, the Forest Service implements and permits individual, site-specific projects pursuant to the Forest Plan s direction. The Forest Service must ensure that site-specific 6

7 management projects within a National Forest, including oil and gas projects, are consistent with forest plans. 16 U.S.C. 1604(i); 36 C.F.R (e). The Forest Service Manual requires that the agency confirm and document that proposed management decisions are consistent with the management directions in the Forest Plan. Forest Service Manual ( FSM ) (1). If the Forest Service seeks to approve a project that is inconsistent with the applicable forest plan, it must: (1) amend the plan; (2) modify the action to comply with the plan; or (3) disapprove the action that is inconsistent with the plan. FSM The Forest Service manages surface use of National Forest lands. 16 U.S.C. 1600(6); 36 C.F.R (a). 23. No permit to drill on a Federal oil and gas lease for National Forest lands may be granted without the Forest Service s analysis and approval of a surface use plan of operations. 36 C.F.R (a). The Federal Land Policy and Management Act 24. FLPMA directs the Secretary of the Interior and BLM to manage public lands under principles of multiple use and sustained yield. 43 U.S.C. 1732(a); see also 43 U.S.C. 1701(a)(8) (listing purposes and values that should be considered in the management of public lands). FLPMA further requires that [i]n managing the public lands the Secretary shall, by regulation or otherwise, take any action to prevent unnecessary or undue degradation of the lands. 43 U.S.C. 1732(b). 25. To assist in the management of public lands, FLPMA requires BLM to develop, maintain, and, when appropriate, revise land use plans. 43 U.S.C. 1712(a). These land use 7

8 plans, also known as resource management plans ( RMPs ) describe both the present and projected future use of the land. 43 U.S.C. 1701(a)(2). 26. FLPMA prohibits BLM from taking actions inconsistent with the provisions of its RMPs. 43 U.S.C. 1732(a) ( The Secretary shall manage the public lands... in accordance with the land use plans developed by him.... ); 43 C.F.R ( All future resource management authorizations and actions... shall conform to the approved plan. ). 27. When necessary, RMPs may be amended, 43 C.F.R To do so, BLM must prepare appropriate NEPA documentation, and submit the proposed amendment to public notice and comment in the same way as when the plan was originally being prepared. 43 C.F.R Under FLPMA, BLM is responsible for ensuring that the actions the agency approves will comply with air quality laws and standards. 43 U.S.C. 1712(c)(8); 43 C.F.R (b)(3). 29. BLM is responsible for approving permits to drill for oil and gas on all federal mineral leases, including those on National Forest lands. 43 C.F.R Onshore Oil and Gas Order No. 1 articulates the process by which an application for permit to drill ( APD ) is approved. 72 Fed. Reg (March 7, 2007). This order was issued jointly by the U.S. Department of the Interior and the U.S. Department of Agriculture. Onshore Order No. 1 provides that BLM will issue an APD for National Forest lands after the Forest Service has approved the Surface Use Plan of Operations and after compliance with all applicable laws including NEPA. 72 Fed. Reg. at

9 30. With an approved APD in hand, a company may move forward with ground-disturbing activities. 43 C.F.R (c). Clean Air Act 31. The Clean Air Act ( CAA ) is designed to clean up areas of unhealthy air and to prevent the degradation of clean air. 42 U.S.C. 7401, The U.S. Environmental Protection Agency ( EPA ) and the State of Colorado have established pollution limits and controls to meet the CAA s goals. See e.g. 5 CCR (common provisions); 5 CCR (particulates); 5 CCR (stationary source emission controls); 5 CCR (volatile organic compounds). These limits include National Ambient Air Quality Standards ( NAAQS ) for pollutants considered harmful to public health and the environment. EPA has set NAAQS for six principal pollutants, called criteria pollutants, including ozone (O 3 ) and particulate matter. 40 C.F.R. Part 50. The current ozone NAAQS is set at 75 parts per billion (ppb). 73 Fed. Reg (March 27, 2008). 33. Areas that do not meet the NAAQS are designated as non-attainment areas. 42 U.S.C For each non-attainment area, states must develop a State Implementation Plan ( SIP ) identifying emission controls and other measures to bring pollution levels below the NAAQS. Id. 34. In addition to providing for NAAQS, the Clean Air Act establishes requirements for the Prevention of Significant Deterioration ( PSD ) of air quality. 42 U.S.C. 7471, 7473(a), 7476(a). 9

10 35. The PSD program explicitly requires the protection of visibility in mandatory federal Class I areas. 42 U.S.C. 7491, Mandatory federal Class I areas include national parks (over 6,000 acres) and wilderness areas (over 5,000 acres). 42 U.S.C. 7472(a). 36. The Clean Air Act declares as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution. 42 U.S.C. 7491(a)(1). Visibility impairment mean[s] any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions. 40 C.F.R Under the PSD program, pollutant emissions are limited by a maximum allowable increase the PSD increment established by EPA. 42 U.S.C. 7473, 7476; 40 C.F.R EPA has set increments for several pollutants including nitrogen dioxide (NO 2 ) and PM 10 particulate matter ten microns or smaller in diameter. 40 C.F.R (c). 38. The Clean Air Act imposes on the Federal Land Manager and the Federal official charged with direct responsibility for management of such lands an affirmative responsibility to protect the air related values (including visibility) of any such lands within a Class I area. 42 U.S.C. 7475(d)(2)(B); 40 C.F.R (p)(2). 10

11 National Environmental Policy Act 39. NEPA is our nation s basic charter for the protection of the environment. NEPA contains action forcing provisions to make sure that federal agencies act according to the letter and spirit of the Act. 40 C.F.R NEPA also guarantees the public a role in the management of public resources including the public lands managed by the BLM and the Forest Service. 40 C.F.R (b) ( public scrutiny [is] essential to implementing NEPA ). 40. The Council on Environmental Quality ( CEQ ) was created by NEPA within the Executive Office of the President of the United States. 42 U.S.C CEQ promulgated regulations to tell federal agencies what they must do to comply with the procedures and achieve the goals of NEPA. 40 C.F.R NEPA requires each federal agency to prepare and circulate for public review and comment a detailed environmental impact statement ( EIS ) prior to any major federal action that may have a significant effect on the environment. 42 U.S.C. 4332(2)(C); 40 C.F.R , When a federal agency is not certain whether an EIS is required, it must prepare an environmental assessment ( EA ). 40 C.F.R , , and If the EA concludes that the proposed project will have no significant impact on the human environment, the agency may issue a finding of no significant impact ( FONSI ), and proceed with the proposed action. If the agency concludes that there may be significant impacts, then it must prepare an EIS. 40 C.F.R Congress intended that requiring agencies to prepare these NEPA documents would help prevent or eliminate damage to the environment by focusing government and public attention on the environmental effects of proposed agency action. 11

12 43. When preparing EAs and EISs, an agency must consider the cumulative environmental impacts of a project when added to other past, present, and reasonably foreseeable future actions. 40 C.F.R ; 40 C.F.R (c)(3). STATEMENT OF FACTS A. Oil and Gas Development on Colorado s Western Slope 44. Oil and gas drilling is exploding on the western slope of the Rockies. The Piceance geologic basin in which the Project is located is one of the fastest growing natural gas drilling areas in the country. Annual drilling permits issued in Colorado have more than tripled since Over two thousand permits were issued in Garfield County alone last year an average of 10 new drilling permits in the county every business day -- which amounts to over 25% of all permits approved in the state. 45. The landscape is quickly becoming industrialized as drill rigs move in, bull dozers blade new roads, and new pipelines criss-cross the hills and streambeds. Places like Silt, Rifle and Parachute are losing their small-town appeal. As one resident said, you re a long way from what you came to Colorado to enjoy. Todd Hartman, Drilling Operations Reshape Landscape, Rocky Mountain News (Dec. 10, 2007). 46. Increased drilling is bringing increased revenue to the State of Colorado and western slope communities. 47. Increased drilling is also bringing increased water and air pollution. 48. Oil and gas operations produce emissions of nitrogen oxide and volatile organic compounds which combine to form ground level ozone. 49. Ground level ozone can cause or aggravate respiratory problems even at low levels. 12

13 50. Ozone also damages plants and ecosystems. 51. Recent air monitoring by Garfield County and the Forest Service has recorded high levels of ozone. 52. Oil and gas activities produce emissions of particulate matter, both PM 2.5 (particulate matter 2.5 microns or smaller in diameter) and PM Monitoring data has also documented visibility impairment in several White River National Forest Class I wilderness areas (Maroon-Bells Snowmass, Eagles Nest and Flat Tops). B. The Glenwood Springs Energy Office and Energy Development Planning 54. The Glenwood Springs Energy Office is an interagency office including BLM and Forest Service staff established pursuant to the Energy Policy Act of The Glenwood Springs Energy Office is preparing a Resource Management Plan for all federal surface and mineral estate managed by BLM within the boundaries of the agency s Glenwood Springs and Kremmling field offices. The lands within these two field offices are currently being managed according to the 1984 Kremmling RMP and the 1984 Glenwood Springs RMP. 56. The federal mineral estate included in the Hell s Gulch project is part of the federal assets managed by BLM within the boundaries of the Glenwood Springs Field Office. 57. BLM and Forest Service staff in the Glenwood Springs Energy Office manage the Hell s Gulch North Phase 2 project. C. The Hell s Gulch Project 58. Comprising 2.3 million acres in west-central Colorado, the White River National Forest is home to numerous fish and wildlife species including the Rocky Mountain elk, the Canada 13

14 lynx, the Northern goshawk, the spotted bat and the Colorado River cutthroat trout. The Forest Service has described the White River National Forest as the top recreation forest in the nation. The forest provides spectacular scenery for camping, hiking, fishing and skiing. It is home to world-renowned ski resorts including Aspen and Snowmass. 59. The White River National Forest contains eight wilderness areas including Maroon Bells-Snowmass, Eagles Nest and Flat Tops. These areas are managed to allow the American people of present and future generations the chance to experience wild places in their natural condition. 16 U.S.C Wilderness areas provide opportunities to seek the healing relaxation that is possible in wild country. (Quote by Margaret Murie, Forest Service website, In recent years, several oil and gas companies have pursued development of areas in the White River National Forest. The Project is one of those efforts. 61. Laramie Energy, LLC conducted initial exploratory drilling in the Hell s Gulch area beginning in This drilling was the first phase of the Hell s Gulch project. 62. In January 2007, the Forest Service issued a draft Environmental Assessment ( EA ) for the second phase of the Hell s Gulch project. 63. Plaintiffs submitted comments on the draft EA in February In addition to NRDC and Wilderness Workshop, numerous other organizations and agencies submitted comments including Mesa County (the county in which the Project is located), the Colorado Division of Wildlife, the U.S. Army Corps of Engineers, and the Colorado Mule Deer Association. 64. In May 2007, Laramie Energy transferred its federal mineral lease for the area to Plains Exploration and Production Company ( PXP ). 14

15 65. On May 7, 2008, the Forest Service published notice of its decision approving the Hell s Gulch North, Phase 2 project. The decision notice ( DN ) and accompanying Finding of No Significant Impact ( FONSI ) authorized PXP to drill up to 45 natural gas wells and to construct accompanying infrastructure including new roads, pipelines, storage tanks and dehydrator units. 66. NRDC and Wilderness Workshop filed a timely administrative appeal of the Hell s Gulch North Phase 2 decision on June 19, On August 4, 2008, the Forest Service denied the appeal by NRDC and the Wilderness Workshop. 68. On September 2, 2008, the Bureau of Land Management approved drilling permits for the Hell s Gulch North Phase 2 project. FIRST CAUSE OF ACTION Failure to Ensure Compliance with Air Quality Protections in Violation of NFMA and its Implementing Regulations 69. Plaintiffs incorporate herein by reference paragraphs 1-68 above. 70. The Forest Service is responsible for managing surface use within National Forests. 16 U.S.C. 1600(6); 36 C.F.R (a). 71. [P]ermits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans. 16 U.S.C. 1604(i); 36 C.F.R (e). 72. The White River Land and Resource Management Plan 2002 Revision ( Forest Plan ) requires that the Forest Service meet state and federal air quality standards and comply with local, state, and federal air quality regulations and requirements. The Forest Plan requires such compliance either through original project design or through mitigation for such activities as 15

16 prescribed fire, ski area development or expansion, mining, and oil and gas exploration and production. Forest Plan at Moreover, the White River Forest Plan requires the Forest Service to [m]onitor visibility and wilderness lake chemistries to ensure that over the life of the plan, air-quality related values in all wilderness areas are protected and where necessary, improved. Forest Plan at See also, 16 U.S.C. 1603, 1604; 36 C.F.R. Part The Forest Service has not completed a monitoring and evaluation program as required by the White River Forest Plan and NFMA and its implementing regulations. 75. The Forest Service approved the Project without adequately documenting that it is consistent with the Forest Plan, including that the emissions from the Project, when combined with emissions from past, present and reasonably foreseeable future oil and gas activities in the Glenwood Springs Resource Area, will not violate any federal and state air quality standards, such as the ozone NAAQS. 76. The Forest Service s own analysis also shows that the Project will contribute to violations of visibility standards for the Class I wilderness areas that it manages. 77. By approving a project that is inconsistent with the applicable Forest Plan s requirements to monitor and protect air quality, the Forest Service has violated NFMA and its implementing regulations and has acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). SECOND CAUSE OF ACTION Failure to Ensure Compliance with Air Quality Protections in Violation of FLPMA and its Implementing Regulations 78. Plaintiffs incorporate herein by reference paragraphs 1-77 above. 16

17 79. BLM has the authority to regulate the development of the public lands. 43 U.S.C BLM s authority includes management of the federal mineral estate underlying National Forest lands. 30 U.S.C. 181; 43 C.F.R BLM has an affirmative duty to ensure that the actions the agency approves will comply with air quality laws and standards. 43 U.S.C. 1712(c)(8); 43 C.F.R (b)(3). 81. BLM approved the drilling permits for the Project without ensuring that the emissions from this project, when combined with emissions from past, present and reasonably foreseeable future oil and gas activities in the Glenwood Springs Resource Area, will comply with federal and state air quality standards, such as the ozone NAAQS and visibility standards for Class I areas. 82. By approving the drilling permits for the Project without taking all steps necessary to ensure compliance with state and federal air quality standards, BLM has violated FLPMA and its implementing regulations and has acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). THIRD CAUSE OF ACTION Failure to Protect Air Quality of Class I Lands in Violation of Clean Air Act and its Implementing Regulations 83. Plaintiffs incorporate herein by reference paragraphs 1-82 above. 84. The Clean Air Act imposes on Federal Land Manager[s] and the Federal official charged with direct responsibility for management of Class I lands... an affirmative responsibility to protect the air quality related values (including visibility) of any such lands. 42 U.S.C. 7475(d)(2)(B); 40 C.F.R (p)(2). 17

18 85. The Forest Service manages several Class I lands within the White River National Forest including the Maroon Bells-Snowmass Wilderness Area, Eagles Nest Wilderness Area and Flat Tops Wilderness Area. 86. The Forest Service s own analysis demonstrates that the Project will increase air emissions. 87. The Forest Service s own analysis indicates significant negative impacts on visibility values in Class I wilderness areas within the White River National Forest. For example, the EA predicts that the Maroon Bells Snowmass Wilderness Area could see 98 days during the year when visibility impairment is greater than 1.0 deciview, the current level of acceptable change. 88. By approving the Hell s Gulch project despite its negative impact on air quality in the Class I wilderness areas of the White River National Forest, the Forest Service violated the Clean Air Act and its implementing regulations and has acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). FOURTH CAUSE OF ACTION Failure to Fully Analyze Cumulative Impacts in Violation of NEPA and its Implementing Regulations 89. Plaintiffs incorporate herein by reference paragraphs 1-88 above. 90. NEPA and its implementing regulations require the Forest Service and BLM to consider the cumulative environmental impacts of the Hell s Gulch project when added to other past, present, and reasonably foreseeable future actions. 40 C.F.R ; 40 C.F.R (c)(3). 91. The Hell s Gulch EA failed to adequately analyze the cumulative environmental consequences of the Project combined with past, present and reasonably foreseeable 18

19 development in the Glenwood Springs Resource Area. For example, the project s environmental analysis completely ignored growing ozone pollution in the area. The analysis also fails to address particulate matter pollution adequately. 92. By failing to fully analyze the Hell s Gulch project s cumulative impacts, the Forest Service and BLM violated NEPA and its implementing regulations and have acted arbitrarily, capriciously, and contrary to law in violation of the Administrative Procedure Act, 5 U.S.C. 706(2)(A). PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully pray that this Court enter judgment in their favor and against defendants Ed Schafer, the U.S. Forest Service, Antoine Dixon, Mary Morgan, Dirk Kempthorne, the Department of the Interior and the Bureau of Land Management, and that the Court: (1) Declare that Defendants have violated FLPMA, NFMA, the Clean Air Act and NEPA, and applicable implementing regulations as set forth above; and (2) Award injunctive relief vacating BLM s approval of the applications for permits to drill for the Hell s Gulch North Phase 2 project; and (3) Award injunctive relief vacating the Forest Service s approval of the Surface Use Plan of Operations for the Hell s Gulch North Phase 2 project; and (4) Retain jurisdiction of this action to ensure compliance with its decree; and (5) Award Plaintiffs the costs they have incurred in pursuing this action, including attorneys fees, as authorized by the Equal Access to Justice Act, 28 U.S.C. 2412(d), and other applicable provisions; and 19

20 (6) Grant such other and further relief as is proper. Respectfully submitted, s/ Sharon Buccino Sharon Buccino Natural Resources Defense Council 1200 New York Ave., NW. Suite 400 Washington, D.C Telephone: (202) Michael Freeman Earthjustice 1400 Glenarm Place, Suite 300 Denver, CO Telephone: (303) Attorneys for Plaintiffs Date: October 31,

21 Natural Resources Defense Council 1200 New York Ave, NW, Suite 400 Washington, DC Wilderness Workshop P.O. Box 1442 Carbondale, CO PLAINTIFF ADDRESS LIST 21