National Audubon Society et al v. Haaland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NATIONAL AUDUBON SOCIETY,
et al.,
Plaintiffs,
v.
DEB HAALAND, in her official
capacity as Secretary of the Interior,
et al.,
Defendants,
and
STATE OF ALASKA,
Intervenor-Defendant.
Case No. 3:20-cv-00206-SLG
ORDER RE MOTIONS TO DISMISS
Before 	the 	Court 	are 	two 	motions 	to 	dismiss: 	one 	filed 	by 	Federal
Defendants1 at Docket 65 and the other filed by Intervenor-Defendant State of
Alaska (the “State”) at Docket 66. 	The motions seek dismissal of Plaintiffs’2
Second Amended Complaint, which challenges two documents prepared pursuant
1 Federal Defendants are the United States Department of the Interior; the Bureau of Land
Management; Deb Haaland, in her official capacity as Secretary of the Interior; Tracy Stone-
Manning, in her official capacity as the Director of the Bureau of Land Management; and Steve
Cohn, in his official capacity as Alaska State Director of the Bureau of Land Management. See
Docket 63 at 1.
2 Plaintiffs are the National Audubon Society, Center for Biological Diversity, Friends of the
Earth, and Stand.earth. See Docket 63 at 1.
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to the National Environmental Policy Act (“NEPA”)3 	relating to the National
Petroleum 	Reserve 	in 	Alaska 	(“NPR-A”). 	Both 	motions 	seek 	dismissal 	on
jurisdictional grounds. 	Plaintiffs opposed the motions at Docket 70, to which
Federal Defendants replied at Docket 71 and the State replied at Docket 72. Oral
argument on the motions was not requested and was not necessary to the Court’s
determination.
BACKGROUND
I. 	NPR-A Management Planning
The NPR-A is a 23.6-million-acre area on Alaska’s North Slope and is the
nation’s largest single unit of public land.4 	“Established as the Naval Petroleum
Reserve in 1923, the NPR-A was renamed and its management authority was
transferred to the Secretary of the Interior in 1976 by the Naval Petroleum
Reserves Production Act (“NPRPA”), 42 U.S.C. § 6501 et seq.”5 Four years later,
the NPRPA was amended by an appropriations rider that directed the Secretary of
the Interior to open the NPR-A to private exploration and establish “an expeditious
program of competitive leasing of oil and gas” in the NPR-A. 6
3 42 U.S.C. § 4321 et seq.
4 Sovereign Iñupiat for a Living Arctic v. Bureau of Land Mgmt., 516 F. Supp. 3d 943, 946 (D.
Alaska 2021).
5 Id.; see also Docket 63 at 8, ¶ 23.
6 Sovereign Iñupiat, 515 F. Supp. 3d at 946 (quoting Pub. L. No. 96-514, 94 Stat. 2964
(1980) (codified at 42 U.S.C. § 6506a)); see also Docket 63 at 8–9, ¶ 24.
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The 	NPRPA 	directs 	the 	Bureau 	of 	Land 	Management 	(“BLM”) 	“to
lease . . . land [in the NPR-A] to private entities for oil and gas development, while
taking such measures as BLM deems necessary or appropriate to mitigate adverse
environmental impacts.” 7 	To carry out this mandate, BLM follows a multi-stage
process that begins with the development of an Integrated Activity Plan (“IAP”)
designed to determine appropriate land management at a broad scale.8 	BLM
analyzes an IAP through an environmental impact statement (“EIS”) prepared in
accordance with NEPA.9 	In this context, BLM has used an EIS to identify and
compare various alternatives for “range[s] of land allocations” within the NPR-A,
“including different options for the percentage of lands that would be made
available for oil and gas leasing.”10
An EIS containing a preferred alternative is initially released to the public in
draft form and is subject to comment before being finalized.11 	After the EIS is
finalized, BLM selects a preferred management alternative from among those
7 N. Alaska Env’t Ctr. v. U.S. Dep’t of the Interior, 983 F.3d 1077, 1081 (9th Cir. 2020)
[hereinafter NAEC] (citing 42 U.S.C. § 6506a); see also Docket 63 at 9, ¶ 26.
8 See NAEC, 983 F.3d at 1082 (explaining that the IAP at issue “analyzed . . . alternative
proposals for a range of land allocations, including different options for the percentage of lands
that would be made available for oil and gas leasing”).
9 See id. “BLM’s actions taken pursuant to the authority of NPRPA are . . . subject to NEPA
procedural requirements for the analysis of potential environmental impacts and reasonable
alternatives.” Id. at 1081 (citing 42 U.S.C. § 4332(2)(C)).
10 Id. at 1082.
11 See Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011)
(citing 40 C.F.R. § 1503.4(a)); see also Docket 63 at 7, ¶ 17.
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analyzed in the EIS.12 	This selection is memorialized in a record of decision
(“ROD”).13 BLM may then conduct lease sales in specified tracts in areas that the
IAP has designated as open for leasing.14
II. 	Publication and Revision of the 2013 IAP/ROD
BLM has undertaken two NPR-A management planning efforts in recent
years. 	In 2012, BLM published a combined IAP and EIS (the “2012 EIS”), which
culminated in a 2013 ROD “that finalized [BLM’s] decision to manage the [NPR-A]
under the preferred alternative.”15 	Through this decision (the “2013 IAP/ROD”),
BLM “designated approximately 52 percent (11.8 million acres) of the [NPR-A
subject to its management] as available for oil and gas leasing, subject to
requirements to protect other values, and prohibited altogether oil and gas leasing
on approximately 11 million acres particularly valuable for wildlife habitat or for
other uses.”16 	BLM then proceeded to hold annual lease sales in specified tracts
within the areas open for leasing until 2019.17
12 See NAEC, 983 F.3d at 1082; Docket 63 at 16, ¶ 50.
13 See NAEC, 983 F.3d at 1082.
14 Docket 63 at 11–12, ¶ 34.
15 NAEC, 983 F.3d at 1082.
16 Docket 63 at 12, ¶ 35.
17 Docket 63 at 12, ¶ 36.
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In 2017, the Secretary of the Interior signed Secretarial Order 3352, which
directed BLM to review and develop a revised IAP for the NPR-A.18 	Accordingly,
in late 2019, BLM released a draft EIS for the purpose of evaluating management
alternatives for a new IAP; in mid-2020, BLM published a notice of availability of
the final document (“2020 EIS”).19 	Like the 2012 EIS, the 2020 EIS considers
various programmatic alternatives that classify land in the NPR-A as either open
or closed to oil and gas leasing.20 	The alternatives explored in the 2020 EIS
include a no-action alternative that would leave the 2013 IAP/ROD in place, and
four action alternatives, all but one of which would open more of the NPR-A to
leasing.21 	The 2020 EIS indicated that BLM’s preferred alternative was one that
would open 82 percent, or about 18.5 million acres, of the NPR-A to leasing.22
Critical to this case, when it was issued, the 2020 EIS also purported “to
fulfill NEPA requirements for lease sales conducted at least through December
2039 and potentially thereafter.”23
18 Docket 63 at 13, ¶ 37.
19 Docket 63 at 13, ¶¶ 37–39.
20 Docket 63 at 13, ¶ 40.
21 Docket 63 at 13, ¶ 40. The 2013 IAP designated approximately 52 percent of the NPR-A as
available for leasing. Docket 63 at 12, ¶ 35.
22 Docket 63 at 13, ¶ 40.
23 Docket 63 at 2, ¶ 2.
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III. 	Initial Complaint, First Amended Complaint, and Stays
In August 2020, Plaintiffs brought this case, challenging the 2020 EIS.24
Plaintiffs’ initial complaint alleged that Federal Defendants had violated NEPA by
failing to provide an adequate analysis of the direct, indirect, and cumulative
impacts of each alternative, and by failing to consider reasonable alternatives.25
In connection with these claims, Plaintiffs flagged the language in the 2020 EIS
that signaled BLM’s intent for the EIS to fulfill NEPA requirements for future lease
sales “at least through December 2039.”26 	Plaintiffs requested that the Court set
the 2020 EIS aside, along with “any actions taken by [Federal] Defendants in
reliance on [it].” 27
Plaintiffs filed their initial complaint 59 days after BLM published its notice of
availability of the 2020 EIS.28 Because BLM had not yet issued a ROD, the Court
stayed this proceeding.29 In December 2020, BLM issued an IAP/ROD (the “2020
IAP/ROD”) in which it formally adopted with minor modifications the preferred
alternative identified in the 2020 EIS as the new IAP for the NPR-A.30 In February
24 Docket 1.
25 Docket 1 at 3, 20–21, ¶¶ 4, 54–58.
26 Docket 1 at 20, ¶ 54.
27 Docket 1 at 21, ¶¶ A–B.
28 Docket 63 at 3, ¶ 6.
29 Docket 10.
30 Docket 63 at 3, ¶ 50.
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2021, Plaintiffs filed a First Amended Complaint challenging both the 2020
IAP/ROD and the 2020 EIS.31 	The First Amended Complaint added several new
claims pursuant to the Administrative Procedure Act (“APA”),32 the Endangered
Species Act,33 the NPRPA, and NEPA.34
In March 2021, Federal Defendants moved to stay this case for 60 days
while “new officials” within the Department of the Interior (“Interior”) reviewed the
2020 IAP/ROD pursuant to an executive order. 35 	The Court granted this motion
as well as several subsequent motions to extend the stay.36 	During the stay,
Interior issued a memorandum to BLM indicating that it was considering “adopting,
in a new ROD, a different alternative” from among the ones analyzed in the 2020
EIS.37 	To assist its decision-making, Interior directed BLM “to undertake an
evaluation of the 2020 [EIS].”38
31 See Docket 24 at 28–36, ¶¶ 76–105.
32 5 U.S.C. § 551 et seq.
33 16 U.S.C. § 1531 et seq.
34 Docket 24 at 28–39, ¶¶ 76–113, A–B.
35 Docket 27 at 2; Docket 63 at 16–17, ¶ 55; see also Protecting Public Health and the
Environment and Restoring Science To Tackle the Climate Crisis, Exec. Order No. 13990, 86
Fed. Reg. 7037 (Jan. 20, 2021).
36 Docket 28; Docket 30; Docket 33; Docket 39; Docket 46; Docket 51; Docket 53.
37 Docket 63 at 16–17, ¶ 55.
38 Docket 63 at 16–17, ¶ 55.
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IV. 	2022 IAP/ROD and Errata to the 2020 EIS
In April 2022, BLM replaced the 2020 IAP/ROD with a new IAP/ROD (the
“2022 IAP/ROD”) that adopted the 2020 EIS’s no-action alternative.39 	As a result
of this decision, “most provisions of the 2013 [IAP] are again applicable in the
[NPR-A], including that approximately 11.8 million acres (52 percent) of the [NPR-
A] [are] available for oil and gas leasing.”40 	In support of the 2022 IAP/ROD, in
April 2022, BLM also issued a determination of NEPA adequacy (“DNA”), which
states that “the new ROD would authorize lease sales.”41
Several months later, in September 2022, BLM published an errata sheet to
the 2020 EIS that made what it described as “minor edits” to the EIS. Specifically,
it addressed the EIS’s statement that the EIS would fulfill NEPA requirements for
lease sales through at least December 2039.42 	The errata sheet deleted that
statement and replaced it with the following sentence: “This programmatic IAP/EIS
is not intended to, by itself and without further NEPA analysis, fulfill NEPA
39 Docket 63 at 17, ¶¶ 57–58.
40 Docket 63 at 17, ¶ 59.
41 Docket 63 at 18, ¶ 61; see also 43 C.F.R. § 46.120(c) (authorizing use of an existing NEPA
analysis “in its entirety” if the appropriate agency “determines, with appropriate supporting
documentation, that [the analysis] adequately assesses the environmental effects of the
proposed action and reasonable alternatives”). The Court takes judicial notice of the existence
and contents of the DNA. See Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001)
(holding that courts may take judicial notice of undisputed matters of public record).
42 Docket 65-2 at 1; Docket 63 at 18, ¶ 63.
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requirements for future lease sales.”43 The errata sheet made changes only to the
2020 EIS; it did not address the DNA issued in April 2022.
V. 	Second Amended Complaint and Motions to Dismiss
In November 2022, after the Court lifted the stay, Plaintiffs filed a Second
Amended Complaint.44 In this complaint, Plaintiffs abandon their challenge to the
2020 IAP/ROD and their claims previously brought under statutes other than NEPA
and the APA.45 	Plaintiffs’ two remaining claims are that Federal Defendants
violated NEPA and the APA by: (1) failing “to consider a reasonable range of
leasing alternatives and the impacts of those alternatives” in the 2020 EIS; and (2)
failing to take a “hard look” at “the direct, indirect, and cumulative impacts of
greenhouse gas emissions from lease sales” in the NPR-A.46 	Plaintiffs ask the
Court to, among other things: (1) “declare that the 2020 EIS fails to fulfill the
requirements of NEPA for the purpose of authorizing lease sales in the [NPR-A]”;
(2) “[v]acate the 2020 EIS as applied to future lease sales”; and (3) “[v]acate in part
43 Docket 65-2 at 2; Docket 63 at 3, ¶ 7.
44 Docket 63.
45 Compare Docket 24, with Docket 63.
46 Docket 63 at 19–24, ¶¶ 72–91; see also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land
Mgmt., 387 F.3d 989, 992–93 (9th Cir. 2004) (explaining that when reviewing the adequacy of a
NEPA document, a court’s “task is to ensure that the agency has taken a ‘hard look’ at the
potential environmental consequences of the proposed action” (quoting Churchill County v.
Norton, 276 F.3d 1060, 1072 (9th Cir. 2001))).
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[the 2022 IAP/ROD] only to the extent the decision authorizes future lease sales
without additional NEPA analysis.”47
In the Second Amended Complaint, Plaintiffs allege that the September
2022 errata sheet “does not eliminate assertions in the 2020 EIS or the 2022 [DNA]
that the record of decision ‘would authorize lease sales.’”48 According to Plaintiffs,
“[t]hese statements create ambiguity regarding whether the EIS was intended to
fulfill 	NEPA 	requirements 	for 	future 	lease 	sales.” 49 	Consequently, 	Plaintiffs
maintain, “BLM could . . . attempt to rely on the 2020 EIS as the sole NEPA analysis
for a future lease sale decision or could reverse its position that the 2020 EIS is
not intended to fulfill NEPA requirements for future lease sales.”50 Plaintiffs assert
that if BLM engages in either course of action, it is possible that any subsequent
legal challenge asserting the arguments they raise in this case would be time-
barred.51
In January 2023, Federal Defendants and the State each filed a motion to
dismiss the Second Amended Complaint. 	Federal Defendants bring their motion
47 Docket 63 at 24, ¶¶ A–C.
48 Docket 63 at 19, ¶ 66.
49 Docket 63 at 19, ¶ 66.
50 Docket 63 at 19, ¶ 69.
51 Docket 63 at 19, ¶¶ 70–71; see also 42 U.S.C. § 6506a(n)(1) (“Any action seeking judicial
review of the adequacy of any program or site-specific environmental impact statement under
section 102 of [NEPA] concerning oil and gas leasing in the [NPR-A] shall be barred unless
brought in the appropriate District Court within 60 days after notice of the availability of such
statement is published in the Federal Register.”).
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pursuant to Federal Rule of Civil Procedure 12(b)(1), while the State brings its
motion pursuant to both Rule 12(b)(1) and Rule 12(b)(6). 52
LEGAL STANDARD
Rule 12(b)(1) requires dismissal of an action when plaintiffs fail to meet their
burden of establishing subject-matter jurisdiction.53 	Courts lack subject-matter
jurisdiction when plaintiffs do not have standing or when their claims are moot or
not ripe for adjudication.54 	“A Rule 12(b)(1) jurisdictional attack may be facial or
factual.”55 In a facial attack, “the challenger asserts that the allegations contained
in the complaint are insufficient on their face to invoke federal jurisdiction.”56 	In a
factual attack, the challenger “attack[s] the substance of a complaint’s jurisdictional
allegations despite their formal sufficiency, and in so doing rel[ies] on affidavits or
any other evidence properly before the court.”57 	When resolving a factual attack
on jurisdiction, a court may “review evidence beyond the complaint without
converting the motion to dismiss into a motion for summary judgment” and “need
not presume the truthfulness of the plaintiff’s allegations.”58
52 Docket 65 at 1; Docket 66 at 1.
53 St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
54 See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (“[S]tanding and mootness both pertain
to a federal court’s subject-matter jurisdiction . . . .”); St. Clair, 880 F.2d at 201 (“Whether a claim
is ripe for adjudication goes to a court’s subject matter jurisdiction . . . .”).
55 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
56 Id.
57 St. Clair, 880 F.2d at 201.
58 Safe Air for Everyone, 373 F.3d at 1039.
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Rule 12(b)(6), in contrast, requires dismissal for a complaint’s “failure to
state a claim upon which relief can be granted.” 	“To survive a motion to dismiss
[pursuant to Rule 12(b)(6)], a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” 59 	A
complaint must provide “well-pleaded facts, not legal conclusions, that ‘plausibly
give rise to an entitlement to relief.’” 60
DISCUSSION
I. 	Justiciability
Article III of the United States Constitution limits federal court jurisdiction to
“actual, ongoing cases or controversies.”61 This case-or-controversy limitation
requires 	courts 	to 	determine 	whether 	a 	plaintiff’s 	claims 	are 	justiciable.62
Justiciability includes the doctrines of standing, ripeness, and mootness.63
Federal Defendants and the State move to dismiss Plaintiffs’ lawsuit on the
grounds that the Second Amended Complaint does not demonstrate that Plaintiffs
59 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
60 Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176 (9th Cir. 2021) (first citing Twombly, 550
U.S. at 570; and then quoting Iqbal, 556 U.S. at 679).
61 Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010) (quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477 (1990)).
62 See Fed. R. Civ. P. 12(h)(3) (providing that “the court must dismiss the action” if it “determines
at any time that it lacks subject-matter jurisdiction”); Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (explaining that a court’s “role is neither to issue
advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or
controversies”).
63 Culinary Workers Union, Loc. 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999).
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have standing and that Plaintiffs’ current claims are unripe.64 	Plaintiffs urge the
Court 	to 	reject 	this 	proposed 	analytical 	framework 	and 	instead “analyze 	its
continuing jurisdiction [solely] through the doctrine of . . . mootness.”65 	Plaintiffs
reason that mootness is the pertinent issue “[w]hen an intervening event,” such as
BLM’s publication of the errata sheet, “potentially eliminates a controversy.”66
Whereas 	the 	standing 	and 	ripeness 	inquiries 	ask 	whether 	a 	case 	or
controversy existed at the start of the case, the mootness inquiry asks whether
that case or controversy “persist[s] throughout all stages of the litigation.”67 	Put
differently, “[m]ootness [is] the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).”68 Accordingly, the
doctrines of standing and ripeness apply to determine justiciability at the outset of
64 Docket 65 at 8–11; Docket 66 at 6–13.
65 Docket 70 at 6.
66 Docket 70 at 6.
67 Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128–29 (9th Cir. 2005) (citing Steffel v.
Thompson, 415 U.S. 452, 459 n.10 (1974)); see also Colwell v. Dep’t of Health & Human
Servs., 558 F.3d 1112, 1123 (9th Cir. 2009) (discussing “close[] relat[ion]” between standing and
ripeness and explaining that whereas “standing is primarily concerned with who is a proper
party to litigate a particular matter, ripeness addressees [sic] when that litigation may occur”
(emphasis in original) (citations omitted)); Jackson v. Cal. Dep’t of Mental Health, 399 F.3d
1069, 1073 (9th Cir. 2005) (“Mootness issues arise later in the case, when the federal courts are
already involved and resources have already been devoted to the dispute.” (citation omitted)).
68 Sanford v. MemberWorks, Inc., 625 F.3d 550, 556 (9th Cir. 2010) (quoting U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)).
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a case.69 	In contrast, the mootness doctrine applies to assess justiciability when
events have arisen after the case was filed.70
The parties do not dispute that Plaintiffs’ claims were justiciable when the
First Amended Complaint was filed in early 2021. Rather, Federal Defendants and
the State challenge Plaintiffs’ ability to continue with this action in light of factual
developments since the start of this case—specifically, BLM’s issuance of the April
2022 IAP/ROD and the September 2022 errata sheet to the 2020 EIS.71 	These
arguments are appropriately evaluated within the mootness framework.72 	This is
of significance because plaintiffs are required to establish the elements of standing
69 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (noting
courts’ obligation to determine whether plaintiffs “ha[ve] Article III standing at the outset of the
litigation”). Typically, the “outset of the litigation” refers to the filing of the original complaint.
See Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 569 n.4 (1992)). But when the original complaint is “defective” and has
been amended pursuant to Federal Rule of Civil Procedure 15(d), the operative facts are those
that existed at the time the amended complaint was filed. See Northstar Fin. Advisors Inc. v.
Schwab Invs., 779 F.3d 1036, 1044 (9th Cir. 2015) (noting that “Rule 15(d) permits a
supplemental pleading to correct a defective complaint and circumvents ‘the needless formality
and expense of instituting a new action when events occurring after the original filing indicated a
right to relief’” (quoting 6A Charles A. Wright et al., Federal Practice and Procedure § 1505 (3d
ed. 2015))). Here, while the original complaint was not defective, it could not challenge the
ROD, which was not issued before the statute of limitations ran on the challenge to the 2020
EIS.
70 See Clark, 259 F.3d at 1006.
71 See Docket 65 at 8–11; Docket 66 at 6–13; see also Coons v. Lew, 762 F.3d 891, 897 (9th
Cir. 2014), as amended (Sept. 2, 2014) (observing that “[w]hen addressing the sufficiency of a
showing of injury-in-fact grounded in potential future harms, Article III standing and ripeness
issues often ‘boil down to the same question” (quoting Susan B. Anthony List v. Driehaus, 573
U.S. 149, 157 n.5 (2014))).
72 Cf. Becker v. Fed. Election Comm’n, 230 F.3d 381, 386 n.3 (1st Cir. 2000) (explaining that
evaluating standing when facts later change “conflates questions of standing with questions of
mootness: while it is true that a plaintiff must have a personal interest at stake throughout the
litigation of a case, such interest is to be assessed under the rubric of standing at the
commencement of the case, and under the rubric of mootness thereafter” (citations omitted)).
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and ripeness, while defendants carry the “heavy burden” of demonstrating that a
“once-live” case has become moot.73
The 	State 	raises 	several 	other 	challenges 	to 	Plaintiffs’ 	standing.
Specifically, 	the 	State 	challenges 	the 	sufficiency 	of 	Plaintiffs’ 	allegations
concerning their members’ alleged injuries, as well as the connection between this
case and Plaintiffs’ organizational purposes.74 	As these issues are properly
addressed under a standing rubric, the Court addresses them first before turning
to mootness.
A. 	Plaintiffs’ Associational and Organizational Standing
Article III standing is a “threshold question in every federal case, determining
the power of the court to entertain the suit.” 75 	Plaintiffs bear the burden of
demonstrating the “irreducible constitutional minimum of standing,” which consists
of three elements.76 	Plaintiffs “must have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.”77
73 See Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (quoting Friends of the Earth, 528
U.S. at 189)); West Virginia v. E.P.A., 142 S. Ct. 2587, 2607 (2022); Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016).
74 Docket 66 at 7–11.
75 Warth v. Seldin, 422 U.S. 490, 498 (1975).
76 Lujan, 504 U.S. at 560.
77 Spokeo, 578 U.S. at 338 (first citing Lujan, 504 U.S. at 560–61; and then citing Friends of the
Earth, 528 U.S. at 180–81). “Where, as here, a case is at the pleading stage, the plaintiff must
‘clearly . . . allege facts demonstrating’ each element.” Id. (quoting Warth, 422 U.S. at 518).
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Plaintiffs assert standing both in their own right and on their members’
behalf.78 An organizational plaintiff has “organizational standing” if it “satisf[ies] the
traditional standing requirements,” allowing it “to seek judicial relief from injury to
itself and to vindicate whatever rights” it may have.79 And an organizational plaintiff
has “associational standing” when “(a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to protect are germane to the
organization’s purposes; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” 80
The State contends that Plaintiffs have not alleged facts sufficient to show
they have associational standing.81 	The State insists that because Plaintiffs’
associational standing “is not self-evident,” their alleged injuries—including that oil
and gas leasing in the NPR-A would harm their members’ interests—must be
pleaded with greater specificity or supported by declarations from their members.82
78 See Docket 63 at 4–7, ¶¶ 12–17.
79 Rodriguez v. City of San Jose, 930 F.3d 1123, 1134 (9th Cir. 2019) (citations omitted).
80 Ecological Rts. Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (quoting Hunt
v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
81 Docket 66 at 7–10.
82 Docket 66 at 9; Docket 72 at 7. In particular, the State asserts that Plaintiffs have not
“explained how [their] members’ interests would be ‘directly and irreparably injure[d]’” by oil and
gas leasing in the NPR-A, or “indicated what portions of the . . . NPR-A are used by these
members.” Docket 66 at 8.
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As to Plaintiffs’ organizational standing, the State suggests that their alleged
injuries amount to no more than “frustration of [their organizational] purpose[s].”83
Turning first to associational standing, 	Plaintiffs allege that their members
engage in subsistence activities, recreation, and wildlife viewing, among other
things, 	in 	areas 	of 	the 	NPR-A 	subject 	to 	future 	leasing 	under 	the 	2022
IAP/ROD.84 	Plaintiffs further allege that oil and gas leasing would harm these
interests by emitting millions of tons of greenhouse gases, which would worsen
what they assert are the already “severe” effects of climate change on the NPR-
A.85 	Taking these allegations as true and construing them in the light most
favorable to Plaintiffs,86 they plausibly allege a concrete and particularized injury,
a causal connection between that injury and BLM’s decision to hold lease sales,
and a likelihood that a favorable decision will lessen harm to their members.87 	At
this stage in the litigation, Plaintiffs need not provide declarations from their
83 Docket 72 at 9.
84 Docket 63 at 7, ¶ 16.
85 See Docket 63 at 7, 9–11, 15, ¶¶ 16, 28–33, 45.
86 See Lee, 250 F.3d at 679.
87 See Lujan, 504 U.S. at 561 (“At the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e]
that general allegations embrace those specific facts that are necessary to support the claim.’”
(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990))); Ecological Rts. Found., 230
F.3d at 1147 (“The ‘injury in fact requirement’ in environmental cases is satisfied if an individual
adequately shows that she has an aesthetic or recreational interest in a particular place, or
animal, or plant species and that interest is impaired by a defendant’s conduct.” (citations
omitted)); see also Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001) (holding
that plaintiffs “seeking to enforce a procedural right under NEPA to protect their concrete
interests” had standing, even though they could not “establish that a revised EIS would result in
a different” course of action).
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members 	or 	plead 	their 	injury 	with 	greater 	particularity 	to 	demonstrate
associational standing.88
The State next asserts that Plaintiffs have not pleaded a sufficient factual
basis to support their organizational standing because they have not alleged how
BLM’s selection of the no-action alternative in the 2022 IAP/ROD affects their
ability to achieve their organizational purposes.89 	As discussed above, however,
when assessing whether Plaintiffs have standing, the Court looks to the facts as
they existed at the outset of this litigation, not at events that have occurred since
that time. And the State does not dispute that Plaintiffs had organizational standing
based on BLM’s initial selection in the 2020 IAP/ROD of an alternative that opened
more of the NPR-A to leasing.90 	The Court finds Plaintiffs’ allegations—including
that “adequate information and public participation” are required for them to
achieve their organizational purposes of “monitor[ing] the use of public lands in the
[NPR-A] . . . , educat[ing] [their] members and the public about the management
of these lands, and advocat[ing] policies and practices that protect the natural and
88 See Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015) (holding that
plaintiff organization was not required to identify specific members injured “[w]here it [was]
relatively clear, rather than merely speculative, that one or more members ha[d] been or w[ould]
be adversely affected by [the] defendant’s action,” and where the identity of particular members
was not necessary for the defendant to “understand and respond” to the claim of injury). The
Court rejects the State’s suggestion that Plaintiffs are required to plead their injury with the
same degree of particularity as in cases resolved on summary judgment, such as Ecological
Rights Foundation v. Pacific Lumber Company, 230 F.3d 1141 (9th Cir. 2000). See Docket 72 at
7.
89 Docket 66 at 10–11.
90 Docket 63 at 3, 13, ¶¶ 6, 40.
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cultural 	values 	and 	sustainable 	resources 	of 	these 	lands”—are 	sufficient 	to
plausibly allege organizational standing. 91
The State also contests Stand.earth’s standing on one other ground: the
relevance of this case to this organization’s purposes.92 	However, the State
narrowly 	focuses 	on 	one 	of 	Stand.earth’s 	general 	purposes: 	“to 	challenge
corporations and governments to treat people and the environment with respect
because 	humanity 	and 	our 	climate 	depend 	on 	it.”93 	Plaintiffs 	allege 	that
Stand.earth’s purposes also include “challeng[ing] destructive . . . government
policies,” advocating for “the urgent need to transition away from fossil fuels,
including oil,” and “protect[ing] the Arctic.”94 	The subject of this litigation—BLM’s
“compliance with NEPA in evaluating and fully disclosing the alternatives and
impacts of its decisions to sell oil and gas leases in the [NPR-A]”—is germane to
these 	purposes.95 	The 	State’s 	challenge 	to 	Stand.earth’s 	standing 	is 	thus
unavailing.
91 See Docket 63 at 7, ¶ 17; Rodriguez, 930 F.3d at 1134 (“[A]n organization may establish
‘injury in fact if it can demonstrate: (1) frustration of its organizational mission; and (2) diversion
of its resources to combat the particular [injurious behavior] in question.’” (quoting Smith v. Pac.
Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004))); Havens Realty Corp. v. Coleman,
455 U.S. 363, 379 (1982) (concluding that dismissal of organization’s claims for lack of standing
was improper where the organization “broadly alleged” that defendants’ discriminatory steering
practices had “impaired [its] ability” to provide counseling and referral services by forcing it to
divert resources elsewhere).
92 Docket 66 at 9.
93 Docket 66 at 9.
94 Docket 63 at 6, ¶ 15.
95 See Docket 70 at 14.
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In 	sum, 	Plaintiffs 	have 	adequately 	pleaded 	their 	associational 	and
organizational standing.
B. 	Mootness
In general, “[a] case becomes moot whenever it loses its character as a
present, live controversy of the kind that must exist if we are to avoid advisory
opinions on abstract propositions of law.”96 However, a party “cannot automatically
moot a case simply by ending its unlawful conduct once sued.” 97 For a case to be
moot when a party has voluntarily ceased the challenged conduct, the party must
show that it is “absolutely clear that the allegedly wrongful behavior [cannot]
reasonably be expected to recur,” and that “interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation.”98 	When the party
asserting mootness is the government, courts “presume that it acts in good faith,
though the government must still demonstrate that the change in its behavior is
‘entrenched’ or ‘permanent.’”99 	When assessing whether the government has
96 Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1157 (9th Cir. 2006) (quoting Cantrell,
241 F.3d at 678), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7 (2008).
97 Brach v. Newsom, 38 F.4th 6, 12 (9th Cir. 2022) (quoting Already, LLC v. Nike, Inc., 568 U.S.
85, 91 (2013)).
98 Norman-Bloodsaw v. Lawrence Berkeley Lab’y, 135 F.3d 1260, 1274 (9th Cir. 1998)
(alteration in original) (first quoting United States v. Concentrated Phosphate Export Ass’n, 393
U.S. 199, 203 (1968); and then quoting Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 854
(9th Cir. 1985)).
99 Fikre v. F.B.I., 904 F.3d 1033, 1037 (9th Cir. 2018) (quoting McCormack v. Herzog, 788 F.3d
1017, 1025 (9th Cir. 2015), abrogated on other grounds by Dobbs v. Jackson Women’s Health
Org., 142 S. Ct. 2228 (2022)).
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carried this “heavy burden,” courts consider “the ‘procedural safeguards’ insulating
the new state of affairs from arbitrary reversal and the government’s rationale for
its changed practice(s).”100
As an initial matter, Federal Defendants maintain that these principles of the
voluntary cessation doctrine are inapplicable to this case.101 	Rather, they assert
Plaintiffs are challenging a “final agency action that no longer exists” because it
has been “superseded.”102 	The Court disagrees for two reasons. 	First, BLM’s
change in position through its 2022 errata sheet is more accurately characterized
as “a voluntary change in official stance,” which courts analyze using the voluntary
cessation framework.103 	And second, the case Federal Defendants cite does not
support the notion that the voluntary cessation doctrine is inapplicable here.104 The
Court thus analyzes mootness under the voluntary cessation framework described
above.105
100 Id. at 1039 (citations omitted).
101 Docket 71 at 3–4.
102 Docket 71 at 3–4.
103 See Fikre, 904 F.3d at 1039 (involving a challenge to a decision by the FBI to revoke an
individual’s flying privileges, a decision that the agency renounced during the litigation).
104 See Docket 71 at 4 (citing Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., 605 F. Supp. 3d 28,
39 (D.D.C. 2022)). In that case, the district court analyzed mootness under the voluntary
cessation framework and held that the plaintiffs’ claim was moot because “there [was] no reason
to think that the [challenged] action w[ould] reoccur.” Pub. Emps. for Env’t Resp., 605 F. Supp.
3d at 39. Key to the court’s holding was that the agency had formally promulgated a rule that
explicitly “superseded” the challenged policy. Id. Here, in contrast, BLM did not follow notice-
and-comment rulemaking procedures when it issued the errata sheet that deleted and replaced
the challenged statements in the 2020 EIS.
105 The Court notes that even if the voluntary cessation framework did not apply, this case would
not be moot. Under the standard mootness test, “a case is moot only where no effective relief
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Plaintiffs assert that this case is not moot because Federal Defendants have
not met their heavy burden of showing that BLM will not reverse its stance and rely
on the 2020 EIS as the sole NEPA analysis for a future lease sale decision.106
Plaintiffs explain that, “[o]ther than posting the [errata sheet in a ‘documents’ tab]
on its website and describing it in a status report filed with the Court, [BLM] did not
publicize the change[s]” the errata sheet made to the 2020 EIS.107 	Furthermore,
Plaintiffs contend that Interior “did not undertake any public process in connection
with its change in position” or “describe the reason for” the change.108 	Based on
this lack of process and transparency, Plaintiffs conclude that BLM could easily
for the alleged violation can be given.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d
1059, 1065 (9th Cir. 2002) (citing Cantrell, 241 F.3d at 678). “The party asserting mootness
bears a ‘heavy burden’ in meeting this standard.” Rosebrock, 745 F.3d at 971 (quoting Friends
of the Earth, 528 U.S. at 189). The DNA that BLM issued in support of the 2022 IAP/ROD
explicitly states that “[this] ROD would authorize lease sales.” Docket 63 at 18, ¶ 61. Plaintiffs
highlight that the subsequently issued errata sheet for the EIS “d[id] not eliminate” this assertion,
and they maintain that the tension between these two documents may result in “ambiguity
regarding whether the [2020] EIS was intended to fulfill NEPA requirements for future lease
sales.” Docket 63 at 19, ¶ 66. Federal Defendants dispute that any such ambiguity exists,
implying that the language in the “modifi[ed]” EIS controls. See Docket 71 at 2. The Court
agrees with Plaintiffs that the discrepancies between the DNA and the errata sheet create
ambiguity on this issue. Granting Plaintiffs their requested relief would clarify this ambiguity,
which could prove important to Plaintiffs because—as discussed in detail below—a future suit
raising similar issues could be time-barred. Cf. Alaska Dep’t of Fish & Game v. Fed.
Subsistence Bd., 62 F.4th 1177, 1182–83 (9th Cir. 2023) (“[P]ublic interest in having the legality
of the practices settled[] militates against a mootness conclusion.” (quoting United States v. W.
T. Grant Co., 345 U.S. 629, 632 (1953))).
106 Docket 70 at 3–10.
107 Docket 70 at 7 (citation omitted).
108 Docket 70 at 7–8.
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reverse course again “by, for example, posting a new [e]rrata [s]heet revising the
EIS to cover lease sales again.”109
Federal Defendants respond that BLM’s publication of the errata sheet was
a formal action that fully and clearly “supersede[d]” its previous position regarding
the 	sufficiency 	of 	the 	2020 	EIS 	to 	support 	future 	lease 	sales.110 	Federal
Defendants assure the Court that its change in position is sufficiently permanent
to moot this case because BLM “cannot, despite Plaintiffs’ fears, rescind the
change or revert to [its previous] position . . . without conducting a further process
leading to a new decision.”111 	Federal Defendants elaborate that any “future
reversal 	of 	position . . . would 	demand 	some 	combination 	of 	the 	procedural
requirements ‘to acquire new data, make new decisions including issuing new
notice, provide opportunity for public comment, and finally issue a new decision
that 	must 	comply 	with 	all 	applicable 	laws 	and 	which 	would 	be 	subject 	to
challenge.’” 112
In Rosebrock v. Mathis, the Ninth Circuit listed several factors that courts
may consider when evaluating mootness in voluntary cessation cases involving a
109 Docket 70 at 8.
110 Docket 71 at 4–7.
111 Docket 71 at 5.
112 Docket 71 at 6–7 (quoting League of Wilderness Defs.-Blue Mountains Biodiversity Proj. v.
Smith, Case No. CV. 04-1595-PK, 2006 WL 3692535, at *4 (D. Or. Dec. 12, 2006) (detailing
steps needed to proceed with new timber sale)).
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government agency’s policy change.113 	In these cases, mootness is more likely
where:
(1) the policy change is evidenced by language that is
“broad in scope and unequivocal in tone,” (2) the policy
change 	fully 	“addresses 	all 	of 	the 	objectionable
measures that [the agency] officials took against the
plaintiffs in the case[,]” (3) “the case in question was the
catalyst for the agency’s adoption of the new policy,” (4)
the policy has been in place for a long time . . . , and (5)
“since the policy’s implementation the agency’s officials
have not engaged in conduct similar to that challenged
by the plaintiff[.]’” 114
On the other hand, mootness is less likely if the “new policy . . . could be easily
abandoned or altered in the future.”115
Starting with the first Rosebrock factor, BLM’s position expressed in the
errata sheet—that the 2020 EIS “is not intended to, by itself and without further
NEPA analysis, fulfill NEPA requirements for future lease sales”—conflicts with the
2022 DNA’s statement that the 2022 IAP/ROD “would authorize lease sales.”116
Because BLM has not explicitly renounced this language in the DNA, the language
in the errata sheet that purports to change the agency’s position is ambiguous.117
113 745 F.3d at 972.
114 Id. (citations and original alterations omitted).
115 Id. (alteration in original) (citation omitted).
116 See Docket 63 at 3, 18, ¶¶ 7, 61.
117 In some cases, including one from this district cited by Federal Defendants, an agency’s
emphatic assurances that a future reversal of position will not happen can be a consideration
weighing in favor of mootness. See Mothership Fleet Coop. v. Ross, 426 F. Supp. 3d 611, 619–
20 (D. Alaska 2019) (concluding that claims were moot in part because the defendant agency
“repeated[ly]” and “express[ly]” committed to its new policy, including by characterizing the
possibility of a reversal in position as “very, very, very unlikely” at oral argument). Here, in
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Moreover, the relevant language in the errata sheet consists of a single sentence
that falls short of expressly acknowledging that the 2020 EIS is inadequate to
satisfy NEPA requirements for future lease sales.
The primary case Federal Defendants cite with respect to this factor, White
v. Lee,118 is readily distinguishable. In White, the Ninth Circuit affirmed the district
court’s determination that a claim was moot due to a policy change that the
Department of Housing and Urban Development set forth in a memorandum.
Describing the memorandum’s expansive and detailed language used to instruct
agency officials on proper behavior in situations involving First Amendment
concerns, the Ninth Circuit concluded that the memorandum was “broad in scope
and unequivocal in tone.”119 Here, in contrast, the language of the errata sheet in
conjunction with the 2022 DNA is not unequivocal in tone nor broad in scope. The
Court finds that the first Rosebrock factor weighs against mootness.
So, too, does the second factor. The NPRPA’s statute of limitations requires
“[a]ny action seeking judicial review of the adequacy of any program or site-specific
contrast, the Court notes that Federal Defendants do not expressly repudiate the DNA’s
contradictory language, even in their briefing.
118 227 F.3d 1214 (9th Cir. 2000).
119 Id. at 1242–43 (explaining that, among other things, the memorandum “list[ed] examples of
protected speech activity,” provided criteria for “any investigation which may be necessary to
obtain information about the extent to which the First Amendment may be applicable,” prohibited
specific types of document requests, instructed officials to clear potential enforcement suits
“with Headquarters before [a] complaint is filed,” and stated “[m]ore broadly” that “where [Fair
Housing Act] concerns ‘intersect with First Amendment protections,’ [agency] officials must defer
to the latter”).
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[EIS] . . . concerning oil and gas leasing in the [NPR-A]” to be brought “within 60
days after notice of the availability of [the EIS] is published in the Federal
Register.”120 	Plaintiffs express a valid concern that this provision could bar any
future legal challenge to the adequacy of the 2020 EIS with respect to site-specific
leasing decisions.121 To wit, if BLM “attempt[s] to rely on the 2020 EIS as the sole
NEPA analysis for a future lease sale decision,” Federal Defendants could then
argue that the NPRPA’s statute of limitations “bars judicial review of the adequacy
of the EIS for the lease sale.”122
Federal Defendants dismiss Plaintiffs’ concern, suggesting that if BLM
attempts 	to 	conduct 	future 	lease 	sales 	without 	performing 	additional 	NEPA
analysis, Plaintiffs could then challenge the adequacy of the 2020 EIS to support
these site-specific decisions.123 	To support this view, Federal Defendants rely on
the Ninth Circuit’s decision in Northern Alaska Environmental Center v. U.S.
Department of the Interior (“NAEC”).124 	In NAEC, plaintiff environmental groups
claimed that BLM failed to take a hard look at the impacts of a 2017 lease sale in
the NPR-A. 	The court considered whether this claim was actually a challenge to
the adequacy of the 2012 EIS; that is, the court asked “whether the 2012 EIS was
120 42 U.S.C. § 6506a(n)(1).
121 Docket 70 at 9.
122 Docket 63 at 19, ¶¶ 69–70.
123 Docket 65 at 12–14.
124 983 F.3d 1077 (9th Cir. 2020).
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the EIS” for the lease sale at issue.125 The court explained that if this was the case,
then the plaintiffs’ hard look claim would be time-barred because it had not been
raised in 2012. 	But if the 2012 EIS was not the EIS for the lease sale, then the
claim would not be time-barred.
The court held that the proper inquiry was “whether the initial EIS defined its
scope 	as 	including 	the 	subsequent 	action.”126 	The 	court 	identified 	several
statements in the 2012 EIS that indicated that the document was intended not only
to be programmatic in nature, but also to encompass future lease sales. First, the
EIS stated that “BLM anticipates that this IAP/EIS will fulfill the NEPA requirements
for the first oil and gas lease sale.”127 	Second, the EIS stated that “[p]rior to
conducting each additional sale, [BLM] would conduct a determination of the
existing 	NEPA 	documentation’s 	adequacy,” 	which 	could 	suffice 	to 	fulfill 	the
agency’s NEPA obligations.128 	Third, the EIS stated that certain future “actions,”
other than lease sales, “would require further NEPA analysis.”129 	The court
interpreted these statements, taken together, to mean that “all lease sales [were]
within the scope of the [2012 EIS].”130 	Therefore, the plaintiffs’ claim that BLM
125 Id. at 1085.
126 Id. at 1086.
127 Id. at 1094.
128 Id.
129 Id. at 1094–95.
130 Id. at 1095.
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failed to take a sufficiently hard look at the impacts of the 2017 lease sale
“necessarily” challenged the adequacy of the 2012 EIS and was therefore time-
barred by the NPRPA’s statute of limitations.131
This Court reads NAEC to support Plaintiffs’ assertion that the NPRPA’s
statute of limitations could bar Plaintiffs from later challenging the adequacy of the
2020 EIS with respect to future lease sales. Federal Defendants point out that the
NAEC court emphasized that the language in the 2012 EIS provided “reasonable
notice” that it was intended to apply to future lease sales.132 	But the Court
disagrees with Federal Defendants that the September 2022 errata sheet issued
here eliminates the clear notice that was provided in the initial 2020 EIS that it was
intended “to fulfill NEPA requirements for lease sales conducted at least through
December 2039 and potentially thereafter.”133 	Rather, consistent with NAEC, the
inclusion of this language in the initial EIS triggered the NPRPA’s statute of
limitations with respect to its site-specific applicability. BLM’s subsequent reversal
of position—accomplished with a relatively informal document issued two years
after it had published notice of the EIS’s availability—did not unequivocally and
irrevocably 	extinguish 	this 	pronouncement. 	As 	a 	result, 	Plaintiffs 	could 	be
foreclosed from bringing claims in the future challenging the adequacy of the 2020
131 Id. at 1085, 1096.
132 See Docket 65 at 12–13.
133 Docket 63 at 2, ¶ 2.
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EIS to fulfill NEPA requirements for a specific leasing decision should the agency
again reverse course in the future.
Federal Defendants submit that if BLM attempted to conduct a future lease
sale relying solely on the 2020 EIS to satisfy its NEPA obligations, Plaintiffs could
then 	assert 	that 	such 	reliance 	on 	the 	2020 	EIS 	would 	violate 	NEPA’s
supplementation requirements.134 But the availability of potential supplementation
claims does not eliminate Plaintiffs’ risk of future injury.135 	For if the NPRPA’s
statute of limitations barred Plaintiffs from bringing a future suit challenging the
adequacy of the 2020 EIS with respect to site-specific leasing decisions, Plaintiffs
would be unable to raise certain arguments in challenging the NEPA adequacy of
those decisions. For example, Plaintiffs could not contend—as they do here—that
NEPA requires examination of “alternatives that explore when, where, and under
what conditions BLM may hold individual lease sales.”136 	As the NAEC court
explained, such contentions must be raised in a timely challenge to the EIS or
other NEPA documents, as applicable.137
134 Docket 65 at 12, 14.
135 See NAEC, 984 F.3d at 1090 (differentiating between “tiering,” which “refers to the
incorporation by reference in subsequent EISs or EAs, which concentrate on issues specific to
the current proposal, of previous broader EISs that cover matters more general in nature,” and
“supplementation,” which “refers to the process of updating a previous EIS in situations where
the agency makes substantial changes to the proposed action, or there are significant new
circumstances or information” (citing 40 C.F.R. §§ 1508.28, 1502.9(c))).
136 Docket 63 at 2, 21, ¶¶ 2, 79–81; see also NAEC, 983 F.3d at 1095 (observing that because
the scope of the 2012 EIS included all lease sales, “the only potential trigger for additional NEPA
analysis [would be] new information or circumstances arising before subsequent sales—i.e.,
factors potentially requiring supplementation”).
137 See NAEC, 983 F.3d at 1085 n.9, 1095 (“Had Plaintiffs brought a timely challenge against
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The third Rosebrock factor favors Federal Defendants’ position, as they
represent that the changes effected through the errata sheet “were made following
conferral with Plaintiffs” and were “intended to resolve the claims in this . . .
case.”138 	But the fourth factor again cuts the other way: BLM’s new policy has
been in place for only one year, a relatively short time. 	Thus, even though BLM
has not, to date, acted in a manner contrary to the position set forth in the errata
sheet, the recency of this new policy also renders the fifth factor less significant
here.139
Taken together, the Rosebrock factors counsel against finding this case
moot because they support a reasonable expectation that BLM might change its
position again. 	Several additional factors bolster this conclusion. 	The first is the
fact that in 2020 (and again in 2022 in the DNA), BLM took the position that the
2020 EIS satisfies its NEPA obligations for future lease sales at least through 2039;
another administration sometime in the next 20 or so years might agree with that
the 2012 EIS, they could have argued that NEPA required consideration of a reasonable
alternative authorization of multiple lease sales that employed particular criteria regarding how
many and which tracts to offer when.”).
138 Docket 71 at 4 n.2, 5.
139 Moreover, insofar as Federal Defendants and the State contend that it is unlikely that BLM
will retake the position that the 2020 EIS fully satisfies its NEPA obligations for future lease
sales because it is unlikely a future lease sale will even occur, the Court disagrees. BLM’s
decision to continue management under the 2013 IAP/ROD is part of its statutory obligation to
conduct an “expeditious program of competitive leasing” in the NPR-A. 42 U.S.C. § 6506a(a);
NAEC, 983 F.3d at 1081–82; see also Docket 63 at 9, 11–12, ¶¶ 24, 26, 34. Although BLM has
not yet offered a lease sale since the 2022 IAP/ROD, Plaintiffs allege that BLM held annual
lease sales between 2013 and 2019, and that “[s]ome leaseholders have expressed plans to
expand their oil and gas infrastructure westward.” Docket 63 at 12, ¶ 36. These alleged facts
plausibly show that lease sales will continue under the 2022 IAP/ROD.
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earlier position. 	The second is BLM’s alleged failure to explain the reason for its
reversal in position.140 	And the third is the apparent ease with which BLM could
abandon or alter its new position if it so chose. Although the Court presumes BLM
acted in good faith in issuing the errata sheet,141 there appear to be few—if any—
procedural 	safeguards 	insulating 	the 	agency’s 	new 	position 	from 	arbitrary
reversal.142 	Federal 	Defendants’ 	references 	to 	unspecified 	procedural
requirements in their briefing do not meaningfully define the contours of any such
requirements that would apply to a future reversal. 	BLM’s apparent failure to
engage in any public process before issuing the errata sheet casts further doubt
on the applicability of specific, mandatory procedures.143 	Relatedly, Federal
140 See Docket 70 at 8; Docket 65-2 at 1–2; see also Fikre, 904 F.3d at 1039. Federal
Defendants’ briefing suggests that the reversal was prompted by agreement with Plaintiffs that
the 2020 EIS does not provide adequate NEPA analysis for future NPR-A lease sales. See
Docket 65 at 10. But because this rationale is not provided in the available record, the Court
declines to give it significant weight. Cf. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009) (stating that an agency that changes a policy must provide a “reasoned explanation”
for the change if the new policy relies on factual findings that contradict those that justified the
prior policy, or if the prior policy “has engendered serious reliance interests”); Presidio Golf Club
v. Nat’l Park Serv., 155 F.3d 1153, 1164–65 (9th Cir. 1998) (explaining that, when reviewing
agency action under the APA, courts may not rely upon “post hoc” rationalizations for agency
action (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971))).
141 The Court further recognizes Federal Defendants’ good faith efforts to resolve the claims in
this case by “issu[ing] a [new] ROD that reinstated key aspects of the 2013 ROD supported by
Plaintiffs.” Docket 71 at 5.
142 See Fikre, 904 F.3d at 1039.
143 See Docket 70 at 7–8; Bell v. City of Boise, 709 F.3d 890, 900–01 (9th Cir. 2013) (ruling that
plaintiffs’ claims were not mooted by the issuance of an internal police department policy
because the chief of police could “easily . . . abandon[] or alter[]” the policy in the future, even if
the chief had no current intentions to do so); Sackett v. E.P.A., 8 F.4th 1075, 1083 (9th Cir. 2021)
(holding that plaintiffs’ claims were not mooted by the agency’s decision to withdraw a
compliance order because the agency “could potentially change positions under new
leadership”), rev’d on other grounds, 598 U.S. 651 (2023). Federal Defendants contend that
Bell and Sackett are distinct from this case because they do not involve the “issu[ance] [of]
formal new actions that supersede those challenged and resolve [the] alleged injury.” See
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Defendants cite no pertinent authority that persuades the Court that any such
procedures would apply. 	Their only proffered authority, an unreported case from
the District of Oregon, describes the procedures that would be required if an
agency withdrew a timber project and later sought to propose and “authorize a new
project in the [same] area.”144 	That case does not support the notion that those
procedures would apply here if BLM changed its position on the sufficiency of the
2020 EIS to support future lease sales in the NPR-A.
The Court similarly disagrees with Federal Defendants’ portrayal of the
errata sheet as a formal means to adopt its new position regarding the use of the
2020 EIS to support future lease sales. Federal Defendants rely primarily on two
cases 	to 	support 	this 	characterization: 	American 	Diabetes 	Ass’n 	v. 	U.S.
Department of the Army145 and Sitton v. Native Village of Northway.146 But BLM’s
publication of the errata sheet without notice and comment contrasts sharply with
the regulatory revision that “enshrined” a policy change in American Diabetes
Ass’n.147 The errata sheet is also far less formal than the tribal court order at issue
Docket 71 at 7. However, the Court views BLM’s policy change effected through the errata
sheet as sharing the informality and impermanence that were hallmarks of the government
policy changes in Bell and Sackett.
144 See League of Wilderness Defs., 2006 WL 3692535, at *4.
145 938 F.3d 1147 (9th Cir. 2019).
146 Case No. A03-0134-CV (HRH), 2005 WL 2704992 (D. Alaska Oct. 13, 2005).
147 Am. Diabetes Ass’n, 938 F.3d at 1153.
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in Sitton; that order served as the means for changing the tribal court’s initial
position that it had jurisdiction over a custody dispute involving a minor child.148
Therefore, Federal Defendants have not met their burden of showing that
BLM’s change in position as reflected in its errata sheet is sufficiently permanent
to moot this case. Moreover, in light of the considerations just discussed, effective
relief is still available to Plaintiffs.149 As Plaintiffs observe, BLM could resolve their
concerns by committing to following certain procedures in the future, such as
issuing a new notice of availability of the 2020 EIS before revising or relying on it
as the sole NEPA analysis for a future lease sale.150 This would “reset[] the clock
for judicial review” under the NPRPA’s statute of limitations, which would in turn
“lessen the impact of [any] reversal [of position] on Plaintiffs’ ability to challenge
the EIS’s adequacy for future [lease] sales.”151 Consequently, the Court finds that
this case is not moot.
II. 	NPRPA’s Statute of Limitations
“An otherwise time-barred claim in an amended pleading is deemed timely
if it relates back to the date of a timely original pleading.”152 	Pursuant to Federal
148 See Sitton, 2005 WL 2704992, at *1, *5.
149 See Nw. Env’t Def. Ctr. v. Gordon, 849 F.2d 1241, 1244–45 (9th Cir. 1988) (“[I]n deciding a
mootness issue, . . . [t]he question is whether there can be any effective relief.” (emphasis in
original) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986))).
150 Docket 63 at 4, ¶ 8; Docket 70 at 10 n.3.
151 See Docket 70 at 10 n.3.
152 ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014).
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Rule of Civil Procedure 15(c)(1)(B), a claim initially set forth in an amended
complaint relates back to the date of a prior filing if the claim “arose out of the
conduct, transaction, or occurrence set out . . . in the original pleading.” 153 	“An
amended claim arises out of the same conduct, transaction, or occurrence if it will
likely be proved by the same kind of evidence offered in support of the original
pleading.” 154 	Additionally, to relate back, both the original complaint and the
amended complaint must share “a common core of operative facts” in order to
afford the defendant “fair notice of the transaction, occurrence, or conduct called
into question.”155 Nevertheless, the relation back doctrine is “liberally applied.” 156
The State contends that the NPRPA’s statute of limitations bars Plaintiffs’
current claims and that these claims do not relate back to the date of the initial
complaint’s filing.157 	The State observes that Plaintiffs’ initial and first amended
complaints challenged the 2020 IAP/ROD, but the Second Amended Complaint
includes a new challenge to a distinct final agency action: the 2022 IAP/ROD.158
Because the Second Amended Complaint “arises out of the 2022 [IAP/]ROD,” the
153 Id. (alteration in original).
154 Id. (internal quotation marks omitted) (quoting Percy v. S.F. Gen. Hosp., 841 F.2d 975, 978
(9th Cir. 1988)).
155 Id. (quoting Martell v. Trilogy Ltd., 872 F.2d 322, 325 (9th Cir. 1989)).
156 Id. at 1005 (explaining that Rule 15’s purpose “is to provide maximum opportunity for each
claim to be decided on its merits rather than on procedural technicalities” (quoting 6 Charles A.
Wright et al., Federal Practice and Procedure § 1471 (3d ed. 1998))).
157 Docket 66 at 13–18.
158 Docket 66 at 15–16.
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State maintains that Plaintiffs’ amended claims do not arise out of the same
“conduct, transaction, or occurrence” identified in the initial complaint and are thus
untimely.159
However, Plaintiffs’ current claims do relate back because, like the claims in
their initial complaint, they involve the adequacy of the 2020 EIS to support future
lease sales.160 	Crucially, Plaintiffs do not challenge the adequacy of the NEPA
analysis to support the 2022 IAP/ROD to the extent that decision is solely
programmatic in nature. Plaintiffs instead take issue with the adequacy of the 2020
EIS’s analysis with respect to decisions made “at the site-specific level,” that is,
future lease sales.161 	Specifically, Plaintiffs allege that the range of alternatives
contemplated in the 2020 EIS fails to include different leasing configurations or
explain “how BLM will decide whether, when, or where to offer tracts for sale.”162
Although Plaintiffs’ request for relief includes partially vacating the 2022 IAP/ROD,
they limit this requested remedy “to the extent the [ROD] authorizes future lease
sales without additional NEPA analysis.”163 	At the heart of this request is the
allegedly defective applicability of the 2020 EIS to future lease sales, not Federal
Defendants’ decision to select the no-action alternative in 2022. 	Plaintiffs raised
159 Docket 66 at 14–16 (quoting Fed. R. Civ. P. 15(c)(1)(B)).
160 Compare Docket 1 at 3, 20–21, ¶¶ 4, 54–58, with Docket 63 at 19–24, ¶¶ 72–91, A–C.
161 See Docket 63 at 20–21, ¶ 78.
162 Docket 63 at 20–21, ¶¶ 78–80.
163 See Docket 63 at 24, ¶ C; Docket 70 at 15–16.
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this challenge in their initial complaint; therefore, the claims raised in their Second
Amended Complaint relate back.
Since Plaintiffs’ current claims relate back to their initial complaint, the fact
that the Second Amended Complaint was filed more than 60 days after BLM issued
the 2022 IAP/ROD and the errata sheet to the 2020 EIS does not bar these claims
from proceeding.
III. 	Whether an EIS Was Required
Finally, the State asserts that the Court should dismiss Plaintiffs’ claims
because “no EIS was required for Interior to continue management of the NPR-A
under the 2013 IAP[/ROD].”164 The State reasons that BLM’s selection of the no-
action alternative in the 2022 IAP/ROD effectively maintained the status quo and
therefore does not constitute a major federal action triggering NEPA.165 	As a
result, the State maintains, the Court “need not consider whether the EIS that was
prepared satisfied NEPA.”166
164 Docket 66 at 6.
165 Docket 66 at 4–6. In support, the State cites Burbank Anti-Noise Group v. Goldschmidt, 623
F.2d 115 (9th Cir. 1980). In that case, the Ninth Circuit held that no EIS was necessary because
“the proposed federal action w[ould] effect no change in the status quo.” Burbank Anti-Noise
Grp., 623 F.2d at 116 (citation omitted). The court therefore declined to consider “whether the
EIS actually prepared . . . was adequate.” Id.; cf. Andrus v. Sierra Club, 442 U.S. 347, 362–63
(1979) (observing that when an “agency program [is] . . . revised in a manner that constitute[s]
major federal action significantly affecting the quality of human environment, an EIS [must] . . .
accompany the underlying programmatic decision”).
166 Docket 66 at 6.
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The State’s argument relies on the incorrect premise that Plaintiffs dispute
Federal Defendants’ compliance with NEPA in choosing to continue managing the
NPR-A under the 2013 IAP/ROD. 	Plaintiffs challenge the 2022 IAP/ROD to the
extent it adopts the 2020 EIS’s analysis to authorize future lease sales without
additional NEPA analysis. But Plaintiffs do not challenge the 2022 IAP/ROD based
on the decision to select the no-action alternative. 	The Court therefore finds that
any failure of the 2022 IAP/ROD to trigger NEPA due to its selection of the no-
action alternative does not render Plaintiffs’ claims to be without merit.
CONCLUSION
In light of the foregoing, IT IS ORDERED that Federal Defendants’ Motion
to Dismiss at Docket 65 and the State’s Motion to Dismiss at Docket 66 are each
DENIED. 	Federal Defendants and the State shall file answers to the Second
Amended Complaint within 14 days of the date of this order.167
DATED this 14th day of September 2023.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
167 See Fed. R. Civ. P. 12(a)(4)(A).
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