from the United States District Court for the District of New
Mexico (D.C. No. 1:16-CV-00912-WJ-KBM)
Michael S. Freeman, Earthjustice, Denver, Colorado (Robin
Cooley and Yuting Chi, Earthjustice, Denver, Colorado; Kyle
J. Tisdel, Western Environmental Law Center, Taos, New
Mexico; Samantha Ruscavage-Barz, WildEarth Guardians, Santa
Fe, New Mexico; and Michael Saul, Center for Biological
Diversity, Denver, Colorado, with him on the briefs),
appearing for Movants to Intervene-Appellants.
S. Barron (Alexander K. Obrecht, with him on the briefs),
Baker & Hostetler, Denver, Colorado, appearing for
Jeffrey H. Wood, Acting Assistant Attorney General; Andrew C.
Mergen, John S. Most, and Matthrew Littleton, Attorneys,
Environmental and Natural Resources Division, United States
Department of Justice, Washington, DC; Karen S. Hawbecker,
Danielle DiMauro, and Wendy S. Dorman, Office of the
Solicitor, United States Department of the Interior,
Washington, DC, filed a brief for Amicus Curiae United
BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
BRISCOE, Circuit Judge.
Western Energy Alliance ("WEA") filed this lawsuit
in the United States District Court for the District of New
Mexico against two Defendants: the Secretary of the United
States Department of the Interior, and the Bureau of Land
Management (the "BLM"). WEA sought relief under the
Administrative Procedure Act, 5 U.S.C. §§ 701-06
(the "APA"), the Freedom of Information Act, 5
U.S.C. § 552 ("FOIA"), and the Declaratory
Judgment Act, 28 U.S.C. §§ 2201-02 (the
"DJA"). WEA alleged that the BLM has violated the
Mineral Leasing Act, 30 U.S.C. §§ 181-287 (the
"MLA"), by holding too few oil and gas lease sales.
Several environmental advocacy groups moved to intervene in
the suit: The Wilderness Society, Wyoming Outdoor Council,
Southern Utah Wilderness Society, San Juan Citizens Alliance,
Great Old Broads For Wilderness, Sierra Club, WildEarth
Guardians, Center For Biological Diversity, and Earthworks
(collectively, the "conservation groups"). The
district court denied the motion to intervene. The court
concluded that the conservation groups had failed to show
that the pending litigation has the potential to harm their
environmental interests, or that the presently named parties
could not adequately represent their interests. The
conservation groups filed this interlocutory appeal to seek
review of the denial of their motion to intervene. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
reverse and remand.
and Gas Leasing on Public Lands
has the authority to lease public lands with oil and gas
reserves to private industry for development under the
Federal Land Policy and Management Act, 43 U.S.C.
§§ 1701-1787 (the "FLPMA"), the MLA, and
the BLM's own regulations and plans. See 43
C.F.R. Part 1600 (Planning, Programming, and Budgeting); 43
C.F.R. Subparts 3120 (Competitive Leases) and 3160 (Onshore
Oil and Gas Operations). Both the MLA and the associated
regulations provide for quarterly lease sales. 30 U.S.C.
§ 226(b)(1)(A) ("Lease sales shall be held for each
State where eligible lands are available at least quarterly
and more frequently if the Secretary of the Interior
determines such sales are necessary."); see
also 43 C.F.R. 3120.1-2(a) ("Each proper BLM
S[t]ate office shall hold sales at least quarterly if lands
are available for competitive leasing.").
"manages the use of federal oil and gas resources
through a three-phase decision-making process."
Pennaco Energy, Inc. v. United States Dep't of
Interior, 377 F.3d 1147, 1151 (10th Cir. 2004). In
the first phase, the BLM develops resource management plans
("RMPs"). 43 U.S.C. § 1712; 43 C.F.R. Part
1600. RMPs indicate which parcels of public land are open or
closed to oil and gas development. When drafting RMPs, the
BLM is required by statute to apply multiple use management,
which "describes the . . . task of striking a balance
among the many competing uses to which land can be put,
'including, but not limited to, recreation, range,
timber, minerals, watershed, wildlife and fish, and [uses
serving] natural scenic, scientific and historical
values.'" Norton v. S. Utah Wilderness
All., 542 U.S. 55, 58 (quoting 43 U.S.C. §
1702(c)). Additionally, the BLM "prepare[s] an
environmental impact statement" in compliance with the
National Environmental Protection Act (the "NEPA")
when preparing an RMP. 43 C.F.R. § 1601.0-6. Generally,
an RMP "describes, for a particular area, allowable
uses, goals for future condition of the land, and specific
next steps." Norton, 542 U.S. at 59. The
applicable regulations also require that the public must have
a chance "to become meaningfully involved in and comment
on the preparation and amendment of" RMPs. 43 C.F.R.
§ 1610.2(a). All subsequent activity on the land,
including oil and gas development, must conform to RMPs.
See 43 C.F.R. § 1610.6-3(a).
second phase, through its State Offices,  the BLM
identifies specific parcels that it will offer for lease in
the competitive lease sale process. 43 C.F.R. Subpart 3120.
The BLM retains discretion to choose which parcels to lease.
W. Energy All. v. Salazar, 709 F.3d 1040, 1044 (10th
Cir. 2013). "'Eligible' lands comprise all lands
'subject to leasing, i.e, lands not excluded from leasing
by a statutory or regulatory prohibition.'
'Available' lands are those 'open to leasing in
the applicable [RMP], . . . when all statutory requirements
and reviews have been met.'" Amicus Br. at 6 n.2
(quoting BLM Manual 3120.11).
the second phase, after a State Office decides which parcels
to offer in a lease sale, the State Office posts a final sale
notice listing those parcels at least 45 days before the sale
date, and often 90 days before. 43 C.F.R. § 3120.4-2;
App. at 187 (BLM Manual 3120 (updated February 18, 2013)).
Once the notice is posted, the BLM's practice is to
provide a 30-day protest period. App. at 187 (BLM Manual 3120
(updated February 18, 2013)). While a protest is pending, the
BLM can suspend a specific parcel from the offering. 43
C.F.R. § 3120.1-3. Although "[s]tate offices should
attempt to resolve protests before the sale of the protested
parcels, " protests unresolved by the lease auction date
do not prevent bidding on the contested parcel. App. at 187
(BLM Manual 3120 (updated February 18, 2013)). If an RMP
identifies land as open to development, a State Office can
publish in the Federal Register a call for expressions of
leasing interest, which anyone may file. See App. at
134. The regulations provide that "[l]ands included in
any expression of interest" are "available for
leasing" and "shall be offered for competitive
bidding." 43 C.F.R. § 3120.1-1(e). The State Office
then conducts a competitive lease sale auction. See
30 U.S.C. § 226(b)(1)(A).
2010, the Interior Department updated its second-phase
practices (the BLM's identification of specific parcels
to be offered for lease) by adopting Instruction Memorandum
2010-117 (the "Leasing Reform Policy"), following
years of negotiation and litigation by the conservation
groups. Aplt. Br. at 7, 20-21. The Leasing Reform Policy
provides for additional review simultaneous with the NEPA
analysis. App. at 136. Specifically, the Leasing Reform
Policy: (i) requires an interdisciplinary team to review the
parcels proposed for leasing and conduct a site visit,
id. at 136-38; (ii) identifies issues the BLM must
consider, id. at 136-37; and (iii) obliges the BLM
to consult other stakeholders, such as federal agencies, and
State, tribal, and local governments. Id. at 137.
While each State Office must still hold at least four total
lease sales per year where eligible lands are available, the
Leasing Reform Policy mandates that State Offices schedule
lease sales on a rotating basis. Id. at 136. The
relevant section of the Policy states:
State offices will continue to hold lease sales four times
per year, as required by the Mineral Leasing Act, section
226(b)(1)(A), and 43 CFR 3120.1-2(a), when eligible lands are
determined by the state office to be available for leasing.
However, state offices will develop a sales schedule with an
emphasis on rotating lease parcel review responsibilities
among field offices throughout the year to balance the
workload and to allow each field office to devote sufficient
time and resources to implementing the parcel review policy
established in this IM. State offices will extend field
office review timeframes, as necessary, to ensure there is
adequate time for the field offices to conduct comprehensive
Id. The BLM has adopted parts of the Leasing Reform
Policy into its Manual and Handbook, "which are
permanent agency guidance documents." Amicus Br. at 3.
after selling a lease, and as part of the third phase of the
BLM's decision-making process, the BLM also decides
whether specific development projects will be permitted on
the leased land. The BLM's authority in this regard
originates with the MLA, which gives the BLM the power to
"regulate all surface-disturbing activities conducted
pursuant to any lease issued under" the MLA and to set
reclamation and other requirements necessary to conserve any
surface resources. § 226(g); see generally 43
C.F.R. § 3162.3-1 (providing for drilling applications
August 11, 2016, the WEA filed a complaint under the APA.
Count I alleges a FOIA violation. This claim, which is not
mentioned in the motion to intervene, is not relevant to this
appeal. Count II seeks a declaratory judgment, under the DJA,
"that BLM's leasing policies and practices violate
the" MLA by causing fewer than four lease sales per
State per year to take place. App. at 39- 40.
Count III alleges that the BLM's actions have resulted in
fewer than the statutorily mandated four lease sales per year
and thus are contrary to law; specifically, contrary to the
MLA, and in violation of the APA. The Prayer for Relief, in
relevant part, asks the district court to:
2. Declare the manner in which [the] BLM is presently
scheduling and administering oil and gas lease sales unlawful
as a violation of the express terms of the Mineral Leasing
3. Require [the] BLM to immediately abandon all currently
existing lease sale schedules that do not comply with the
Mineral Leasing Act and to adopt promptly revised lease sale
schedules that comply with the terms of the Mineral Leasing
4. Direct [the] BLM to revise or rescind all agency guidance
and instructional memoranda, including I.M. No. 2010-117,
that direct implementation of [the] BLM's lease ...