## Facts

- BLM amended its land-use plan for Otero Mesa in southern New Mexico to guide federal oil and gas development in Sierra and Otero Counties.
- In a draft EIS, BLM proposed limiting surface disturbance to areas within 492 feet of existing roads.
- In the final EIS and adopted Resource Management Plan Amendment (RMPA), BLM replaced the road-buffer approach with a stipulation allowing surface disturbance on up to 5% of the Mesa at any one time, without limiting where disturbance could occur.
- The State of New Mexico and environmental organizations challenged the adequacy of the plan-level NEPA review, asserted violations of FLPMA public participation requirements, and raised other statutory claims including ESA consultation regarding the Northern Aplomado Falcon.
- Plaintiffs also challenged BLM’s initiation of leasing within the planning area without completing tract-level, site-specific environmental review associated with lease issuance.
- The district court upheld the plan-level EIS but held NEPA required additional site-specific analysis before leasing; it rejected most other claims.

## Issues

1. Whether BLM’s plan-level EIS for the Otero Mesa RMPA satisfied NEPA’s “hard look” requirement given the change from the draft’s road-buffer limits to the final 5% disturbance cap without location limits.
2. Whether NEPA required BLM to conduct site-specific environmental analysis before issuing oil and gas leases that authorize surface-disturbing development.
3. Whether BLM complied with FLPMA’s public participation and comment requirements during the RMPA process.
4. Whether the ESA claim challenging BLM’s failure to consult with the Fish and Wildlife Service regarding the Northern Aplomado Falcon remained justiciable.

## Decision

- Affirmed the district court’s ruling that NEPA required site-specific environmental analysis before BLM proceeded with leasing on Otero Mesa.
- Reversed the district court’s ruling that the plan-level EIS complied with NEPA, finding the final EIS’s shift to a 5% cap without spatial limits materially altered environmental effects and was not adequately analyzed.
- Affirmed the district court’s rejection of the FLPMA public participation challenge.
- Vacated as moot the district court’s disposition of the ESA consultation claim.

## Legal Principles

- NEPA requires an agency to take a “hard look” at the environmental consequences of the action it actually proposes and adopts, including evaluating the effects of materially different development configurations.
- A substantial change between a draft and final EIS that alters the location and pattern of impacts can require additional NEPA analysis; an agency cannot justify omission of further review by equating only the total acreage disturbed.
- NEPA review must occur when the agency retains the greatest ability to choose among options; issuing leases that authorize surface disturbance can constitute an irreversible commitment requiring site-specific analysis before leasing.
- FLPMA requires meaningful opportunity for public participation in land-use planning, not agreement with the agency’s final choices.
- When subsequent events eliminate a live controversy over ESA consultation, the proper course is to treat the claim as moot and vacate the prior merits disposition.

## Conclusion

The Tenth Circuit held that BLM’s final EIS for the Otero Mesa planning amendment was procedurally deficient under NEPA due to a materially changed disturbance scheme lacking adequate analysis, and it required site-specific NEPA review before BLM could issue development leases; it otherwise upheld BLM’s FLPMA public-participation compliance and vacated the ESA ruling as moot.


New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009)