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228 F.Supp.2d 1224

(Cite as: 228 F.Supp.2d 1224)

 

Yel Flg
United States District Court,

D. Colorado.

SAN JUAN CITIZENS' ALLIANCE, Southern Ute Grassroots Organization, Plaintiffs,

v.

Bruce BABBITT, Secretary, United States Department of the Interior; and the
United States Bureau of Land Management, Defendants,

Southern Ute Indian Tribe and Amoco Production Company, Defendants/Interveners.

Civil Action No. 00RB379(OES).

Oct. 4, 2002.

*1226 Matthew Gilbert Kenna,Geoffrey Brent Hickcox, Kenna & Hickcox, P.C.,
Durango, CO, for Plaintiffs.

Stephen D. Taylor, U.S. Attorney's Office, Denver, CO, for Defendants.

Anthony J. Shaheen, Charles L. Kaiser, Charles A. Breer, Davis, Graham & Stubbs
LLP, Denver, CO, Rebecca S. McGee, Amoco Production Co., Denver, CO, Bradley S.
McKim, McKim Law Offices LLC, Golden, CO, Thomas H. Shipps, Sam W. Maynes, Maynes,
Bradford, Shipps & Sheftel, Durango, CO, Scott B. McElroy, Mary Catherine Condon,
Greene, Meyer & McElroy. P.C., Boulder, CO, for Intervenors-Defendants.

ORDER DENYING DEFENDANT/INTERVENER'S MOTION TO DISMISS

BLACKBURN, District Judge.

This matter comes before me on defendants/interveners Southern Ute Indian Tribe
and Amoco Production Company's Motion to Dismiss [# 60], filed November 30, 2000.
The defendant moves pursuant to FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P.
12(b)(6) to dismiss the complaint. The issues raised by or inherent to the
motion have been fully briefed. Oral argument would not assist the court in the
determination of the motion. I deny the motion.

The gravamen of the plaintiffs' complaint is that the defendants United States
Bureau of Land Management ("BLM") and Bruce Babbitt, former Secretary, United
States Department of the Interior have not completed a comprehensive analysis of
the cumulative impacts of the increased coalbed methane activity in the San Juan
Basin area either through an Environmental Impact Statement ("EIS") or a
supplemental EIS. The plaintiffs claim that the National Environmental Policy Act
("NEPA"), 42 U.S.C. s 4321-4370d, required the defendants to update previous
environmental analyses of coalbed methane wells prior to any increase in coalbed
activity. The plaintiffs allege that this failure resulted in a NEPA violation.
Additionally, plaintiffs claim that defendants violated the Federal Land Policy
Management Act ("FLPMA"), 43 U.S.C. s 1701-1784, by "taking, authorizing,
permitting, or otherwise allowing continued or planned coalbed methane-related
activities in the northern San Juan Basin which are not in conformance with the
existing Resource Management Plan ("RMP") for the San Juan-San Miguel Resource
Area." (Sec. Amd. Compl., P 11).

The plaintiffs allege that the defendants have violated NEPA, 42 U.S.C. s
4321-4370d, FLPMA, 43 U.S.C. s 1701-1784, and the Administrative Procedure Act
("APA"), 5 U.S.C. s 701-706. (Sec. Amd. Compl., P P 103-106 and P P 107-109).
The plaintiffs seek injunctive relief to compel defendant BLM to prepare an EIS
before permitting any further drilling for coalbed methane on federal lands in the
northern San Juan Basin and on the Southern Ute Indian Reservation in the northern
San Juan Basin. (Sec. Amd. Compl., P 28-29). *1227 They also seek injunctive
relief requiring, inter alia, that BLM immediately bar operation on, withdraw, and
cease issuing all coalbed methane well permits, applicable Environmental
Assessments ("EAs"), and Findings of No Significant Impact ("FONSIs") for
uncompleted wells approved at 1:160-acre spacing. Additionally, the plaintiffs
seek declaratory relief from the court finding that BLM's actions and decisions
violation NEPA and FLPMA pursuant to the APA.

The defendants/interveners Southern Ute Indian Tribe ("SUIT") and Amoco
Production Company ("Amoco") (collectively "defendants"), claim that the
plaintiffs' Second Amended Complaint should be dismissed for the following
reasons:

1) that because plaintiffs have not "actually challenged a specific final agency
action" but rather alleged an impermissible wholesale, programmatic challenge to
BLM's coalbed methane program in the northern San Juan Basin, this court lacks
jurisdiction over the Second Amended Complaint (Mot. to Dis., p. 1);

2) that because plaintiffs are challenging actions taken decades ago, NEPA and
FLPMA do not authorize the relief requested (Id.);

3) that because plaintiffs are challenging "projected," future coalbed methane
wells which have not yet been approved or considered by BLM, their claims are
not ripe.;

4) that plaintiffs do not have standing to bring this action because they cannot
show an actual or imminent injury in fact; and

5) that under Burlington Resources Oil and Gas Co. v. Colorado Oil and Gas
Conservation Comm'n, 986 F.Supp. 1351 (D.Colo.1997), plaintiffs must appeal
BLM's down-spacing decisions to the Interior Board of Land Appeals before
seeking judicial review.

I.

Undisputed Facts.

Plaintiff San Juan Citizens Alliance ("SJCA") is a public advocacy and
environmental organization interested in a coalbed methane development. (Sec.
Amd. Compl., P 17). SJCA brings the Second Amended Complaint on its own behalf
and on behalf of its members. (Id.). SJCA alleges that its organizational
mission has been adversely impacted by defendants' alleged failure to comply with
NEPA. (Sec. Amd. Compl., P 20).

Plaintiff Southern Ute Grassroots Organization ("SUGO") is a tribal
organization involved in intra-tribal policies of the Southern Ute Indian Tribe.
(Sec. Amd. Compl., P 18). SUGO alleges that its organizational mission has been
adversely impacted by defendants' alleged failure to comply NEPA. (Sec. Amd.
Compl., P 21).

BLM is the federal agency responsible for mineral extraction on federal and
Indian lands located in the northern San Juan Basin. In 1990, BLM issued an EA
for oil and gas operations in the Southern Ute Indian Reservation. In 1991, BLM
issued a statewide Colorado Oil and Gas Leasing and Development Final EIS. On
April 3, 2000, defendant BLM announced that it is currently preparing an EIS for
coalbed methane activities on federal lands located in southwestern Colorado,
including the northern San Juan Basin. The new EIS is scheduled to be completed
this year, 2002.

The plaintiffs claim that the anticipated EIS is insufficient per se. The
plaintiffs argue that NEPA precludes agency action that would have an adverse
environmental impact or that would limit the choice of reasonable alternatives
prior to concluding the NEPA review process. The plaintiffs claim that the
defendants are in violation of NEPA for their failure to prepare of an *1228 EIS
or supplemental EIS prior to the following actions:

1) the May 3, 2000, adoption of a down-spacing decision allowing the density of
coalbed methane wells to double in areas of the northern San Juan Basin;

2) the approval of applications for permits to drill at the denser 160-acre
spacing through the issuance of an inadequate EAs and FONSIs under NEPA;

3) the reliance on "Interim Criteria" to allow continued and expanded coalbed
methane development; and

4) the continued use of enhanced production methods despite significant new
information or a general lack of information regarding the environmental impacts
of such activities. (Sec. Amd. Compl., P 2).

The plaintiffs note that BLM in conjunction with the Colorado Oil and Gas
Conservation Commission ("COGCC"), authorized and continues to authorize the
drilling and operation of coalbed methane wells within the northern San Juan Basin
based on a 1991 EIS and a 1990 EA for oil and gas operations in the Southern Ute
Indian Reservations. The plaintiffs claim that the maximum coalbed methane well
density envisioned in the 1990 EA and 1991 EIS and throughout the concomitant
environmental analysis for the area producing coalbed methane was 1 well per 320
acres. However, the plaintiffs argue that since the issuance of the 1990 EA and
the 1991 EIS, "significant new information has become available regarding the
environmental impacts of the relatively new and experimental, yet rapidly
proliferating [coalbed methane] production process." (Sec. Amd. Compl., P 7).

The plaintiffs claim that despite information illustrating previously unknown
environmental impacts of BLM's actions and the techniques employed, BLM and COGCC
have authorized several applications for a twofold increase in coalbed well
density from 1:320 acres to 1:160 acres within the northern San Juan Basin.
Pursuant to these applications, "several hundred" additional wells are
anticipated. (Sec. Amd. Compl., p. 8). As of October 25, 2000, the date of the
filing of the Second Amended Complaint, allegedly several wells have been approved
at the 160-acre spacing, including approximately 12 under a May 3, 2000, adoption
of a recent large scale down spacing decision, envisioning over 700 new wells. (
Sec. Amd. Compl., P 9).

Allegedly, each of these new wells was approved through "nearly identical" EAs
and FONSIs. The plaintiffs claim the EAs and FONSIs fail to "adequately consider
the cumulative impacts of the broader coalbed methane production program in the
region." (Sec. Amd. Compl., P 9). As such, BLM should have issued a new EIS or
a supplemental EIS discussing the possible environmental impact of shifting the
coalbed methane well spacing from 1:320 to 1:160.

II.

Claims Analysis.

A. Plaintiffs Have Standing to Pursue Their Claims

Taking their arguments out of turn, the defendants claim that plaintiffs lack
standing to sue because they make no allegations regarding a specific, concrete
injury suffered by any member of their organizations. (Mot. to Dis., p. 22). As
I concluded previously in my September 16, 2002, Order [# 83], I find the
plaintiffs' have averred with the requisite sufficiency that their organizations
and their members have suffered an injury in fact. Accepting the plaintiffs'
well-pleaded allegations as *1229 true, the plaintiffs have established standing.

B. Plaintiffs' Claims Are Permissible

The defendants claim that the court lacks jurisdiction over plaintiffs claims
because their challenge is an impermissible "programmatic challenge" and is not
limited to identifiable agency actions, similar to the broad substantive legal
challenge presented in Sierra Club v. Peterson, 228 F.3d 559 (5th Cir.2000). (
Mot. to Dis., p. 3). The plaintiffs claim that this is not an impermissible
programmatic, substantive challenge as was described in Sierra Club v. Peterson,
but rather a challenge to the defendants' failure to comply with the procedural
requirements of NEPA.

[1] In addition to Article III standing requirements, a plaintiff seeking
judicial review pursuant to the APA must (1) identify some "final agency action"
and (2) demonstrate that its claims fall within the zone of interest protected by
the statute forming the basis of its claims. Lujan v. National Wildlife Fed., 497
U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Catron County Bd. of
Comm'r, New Mexico v. United States Fish & Wildlife, 75 F.3d 1429, 1434 (10th
Cir.1996). The defendants do not appear to dispute that the plaintiffs' claims are
within the zone of interest of the apposite statutes.

[2] With respect to "final agency action," the plaintiffs claim, inter alia,
that the defendants "have proceeded to permit individual wells pursuant to
[increased well spacing] orders without the benefit of a full cumulative impact
analysis in an [EIS], which is required by the [NEPA]." (Res., p. 3). The
plaintiffs argue that judicial review under the APA is proper because the decision
not to comply with NEPA in this way is a final agency action. I agree with the
plaintiffs.

NEPA requires that federal agencies prepare an environmental impact statement
("EIS") when there has been a recommendation or report on proposals for
legislation and other major federal actions significantly affecting the quality of
the human environment. 42 U.S.C. s 4321, et seq (emphasis added); see also
Colorado River Water Conservation Dist. v. U.S., 593 F.2d 907, 910 (10th Cir.1977)
(citing Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency
Procedures (SCRAP), 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975)). A
failure to prepare an EIS is a final agency action within the meaning of the APA.

See 5 U.S.C. s 551(13) ("agency action includes the whole or a part of an agency
rule, order, license, sanction, relief, or the equivalent or denial thereof, or
failure to act."); Catron County Bd. of Comm'rs, New Mexico, 75 F.3d at 1434
("The Secretary's alleged failure to comply with NEPA constitutes 'final agency
action' ") (citing 5 U.S.C. s 551(13) ).

In evaluating an agency's decision not to develop an EIS or a SEIS courts
utilize a two part test. Southern Utah Wilderness Alliance v. Norton, 301 F.3d
1217, 1238 (10th Cir.2002). First, they look to see if the agency took a " 'hard
look' at the new information to determine whether [supplemental NEPA analysis] is
necessary." Id. (citing Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist.,
914 F.2d 1174, 1177 (9th Cir.1990) (citations omitted)). Second, after a court
determines that an agency took the requisite "hard look," it reviews an agency's
decision not to issue an EIS, a SEIS, or a supplemental EA under the APA's
arbitrary and capricious standard. Southern Utah Wilderness Alliance, 301 F.3d at
1238 (citing Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct.
1851, 104 L.Ed.2d 377 (1989); Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162,
1178 (10th Cir.1999); Friends of the Bow v. Thompson, 124 F.3d 1210, 1218 (10th
Cir.1997); Hughes River *1230 Watershed Conservancy v. Glickman, 81 F.3d 437, 443
(4th Cir.1996)).

On the face of the Second Amended Complaint, plaintiffs are not claiming that
the agency failed to take a "hard look" prior to deciding not to issue an EIS or a
SEIS. Rather, the gravamen of their complaint is that the defendants' failure to
prepare an EIS or a SEIS was arbitrary and capricious and not in accordance with
the law. (Sec. Amend. Com., p. 27). Specifically the plaintiff alleges the
following actions constitute a major federal action, which necessitated the
production of an EIS or a SEIS:

BLM has exercised its authority to approve and permit additional coalbed methane
wells at a greater density than was considered in the most recent NEPA analyses
nearly a decade ago. Over the past year, BLM and the Colorado Oil and Gas
Conservation Commission ("COGCC") have approved several applications from oil
and gas companies for a twofold increase in [coalbed methane] well density from
1:320 acres to 1:160 acres within the northern San Juan Basis, and have
proceeded to permit individual wells pursuant to those spacing orders without
the benefit of a full cumulative impact analysis in an Environmental Impact
Statement ("EIS") under NEPA. Rather BLM has prepared multiple, less intensive
Environmental Assessments ("EA") for numerous individual [coalbed methane]
infill wells, concluding Findings of No Significant Impact ("FONSIs") that no
further analysis in an EIS would be required. BLM has also issues and relied
upon an uninformed and unsubstantiated "Interim Criteria" for allowing continued
development prior to completion of the programmatic NEPA analysis which is
slowly emerging, and continues to approve the use of enhanced production
techniques which themselves have yet to undergo required NEPA analysis. (Res.,
p. 3).

The plaintiffs have sufficiently pleaded that the defendants' preparation of
EAs and FONSIs rather than an EIS was arbitrary and capricious.FN1 Therefore, I
find and conclude that the plaintiffs have stated with sufficiency a claim for
judicial review.

FN1. "Where the environmental effects are uncertain, the agency must prepare
an EA to determine whether a significant effect will result from the
proposed action." Catron, 75 F.3d at 1434 (citing 42 U.S.C. s 4332(2)(E);
40 C.F.R. s 1508.9; Oregon Natural Resources Council v. Lyng, 882 F.2d
1417, 1421-22 (9th Cir.1989)). Based upon the EA, the agency must either
make a "finding of no significant impact" (FONSI) or determine if a
significant environmental impact will result, thus requiring the preparation
of an EIS. Id. (citing Committee to Preserve Boomer Lake Park v. Dept. of
Transp., 4 F.3d 1543, 1554 (10th Cir.1993)).

If after preparing the EA, the agency concludes that a proposed action
will not significantly affect the environment, the agency may issue a
"finding of no significant impact" (FONSI) and "need not prepare a full
EIS." Southern Utah Wilderness Alliance v. Norton, 301 F.3d 1217,
1237-1238 (10th Cir.2002) (citing Friends of the Bow v. Thompson, 124 F.3d
1210, 1214 (10th Cir.1997)) (citing 40 C.F.R. s 1501.4(e) ). NEPA does
not require an agency to reach a particular substantive outcome. Id.
(citing Marsh v. Ore. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct.
1851, 104 L.Ed.2d 377 (1989); Envtl. Def. Fund, Inc. v. Andrus, 619 F.2d
1368, 1374 (10th Cir.1980)). However, agencies must comply with NEPA "to
the fullest extent possible." 42 U.S.C. s 4332.

C. Plaintiffs' Claims for Relief are Appropriate under NEPA and FLPMA

The defendants claims that plaintiffs requested relief with respect to existing
oil and gas operations is "unprecedented" and is "not authorized by NEPA or
FLPMA." (Mot. to Dis., p. 12). The defendants argue that the plaintiffs
impermissibly attempt*1231 to challenge activities that occurred over a decade
ago. NEPA and FLPMA, they argue, affect only decisions going forward and are
"not vehicles for revisiting decisions made decades ago." (Id., p. 12).

[3] This argument cuts too broadly. How would an agency be held accountable
for violations of NEPA or FLPMA if a court were precluded from reviewing a final
agency action? In any event, the plaintiffs' requests for declaratory and
injunctive relieve focus almost exclusively on the agency's recent decision to
increase the coalbed well density from 1:320 acres to 1:160 acres and BLM's
failure to prepare an EIS or SEIS.

Next, the defendants try to claim in a footnote that the principles of res
judicata and collateral estoppel preclude the plaintiffs' arguments because the
plaintiffs have already challenged BLM's decision on NEPA and other grounds and
did not seek judicial review of the adverse agency decisions. It is unclear
whether the plaintiffs' have challenged BLM's failure to provide an EIS for the
1:160 acre coalbed methane well spacing decision. Further, on a motion to
dismiss, I do not have the benefit of the administrative record to confirm the
defendants' contentions. Therefore, for purposes of a FED. R. CIV. P. 12(b)(1)
and (6) review, I reject this argument.

Finally, the defendants claim, again in a footnote, that the defendants
arguments are moot. Because of the ongoing nature of the alleged NEPA violations
of BLM, I reject this argument and find and conclude that the plaintiffs have
pleaded with sufficiency a claim for relief.

D. Plaintiffs' Claims are Ripe for Review

Interestingly, in an apparent contradiction to their argument that the
plaintiffs claims are essentially backward looking and moot, the defendants argue
that the "plaintiffs are challenging "projected," future coalbed methane wells
which have not yet been approved yet (sic) or considered by the BLM." (Mot. to
Dis., p. 1). The defendants claim that because it will be undertaking NEPA
analysis in the near future, a court cannot find it arbitrary and capricious that
the defendants failed to complete an EIS or SEIS prior to taking the alleged
adverse action. Therefore, the defendants argue that the plaintiffs' claims are
not ripe. (Mot. to Dis., p. 15). Specifically, the defendants argue that the
issue is not fit for judicial review because 1) no final agency action has
occurred; 2) judicial action would inappropriately interfere with further
administrative action; and 3) the court would benefit from BLM's consideration of
the issues presented. (Id., pp. 15-17).

[4] The ripeness requirement is a doctrine designed to prevent the courts from
" 'entangling themselves in abstract disagreements over administrative polices,
and also to protect the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way
by the challenging parties.' " Sierra Club v. U.S. Dept. of Energy 287 F.3d 1256,
1262 -1263 (10th Cir.2002) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49,
87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). To determine if an agency's decision is
ripe for review, the court examines both the "fitness of the issues for judicial
decision" and the "hardship to the parties of withholding court consideration."
Id. (citing Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665,
140 L.Ed.2d 921 (1998)). In doing so, the court must consider 1) whether delayed
review would cause hardship to the plaintiffs; 2) whether judicial intervention
would inappropriately interfere with further administrative action; and 3)
whether the courts would benefit *1232 from further factual development of the
issues presented. Id.

[5] The plaintiffs respond that the defendants ignore the plaintiffs' primary
concern which is ongoing coalbed methane production activities that presently are
causing environmental harm and posing an actual and immediate threat within the
meaning of Lujan. The plaintiffs note that the BLM has already approved without
the benefit of an EIS or SEIS COGCC's down spacing orders and applications for
permits to drill at the denser 160-acre spacing. (Res., p. 16). This failure to
prepare an EIS or SEIS constitutes arguably a final agency action. Second, the
plaintiffs respond that judicial action would not inappropriately interfere with
administrative action since BLM has conclude by virtue of their EAs and FONSIs
that no further review of environmental impacts is necessary. Finally, the
plaintiffs assert that BLM's continued delay and present failure to provide an EIS
or SEIS prior to commencing the issuance of down spacing orders and applications
for permits to drill presents sufficient finality and ripeness to permit review.
The plaintiffs suggest that the credibility of the defendants' claims that BLM's
further analysis would benefit the court is questionable given the "piecemeal"
approach and analysis undertaken by it thus far. The plaintiffs insist that
judicial review is critical to ensure sufficient analysis of the impacts of BLM's
action and "to correct BLM's narrow and piecemeal approach to addressing these
impacts." (Res., p. 26).

The defendants' assertion that it hopes to fulfill, or even will fulfill, its
NEPA obligations in the future does not address its current failures to act and is
misguided. See, e.g., Southern Utah Wilderness Alliance, 301 F.3d at 1239
(citing Portland Audubon Soc'y v. Babbitt, 998 F.2d 705, 709 (9th Cir.1993))
("[W]e are unmoved by the Secretary's claim that it would be futile to prepare
supplemental EISs ... when its new Resources Management Plans and accompanying
EISs will address all the relevant information."). Therefore, I find and
conclude that delayed review could cause hardship to the plaintiffs, judicial
intervention would not inappropriately interfere with further administrative
action, and the court would not benefit from further agency action (or lack
thereof). I agree with the plaintiffs and find that the plaintiffs' claims are
ripe for judicial review.

E. Exhaustion is Not Required

[6] Finally, the defendants argue that the plaintiffs' claims requesting
judicial review of the May 3, 2000, spacing orders should be dismissed because the
plaintiffs failed to exhaust administrative remedies. The APA section 704
expresses the administrative "exhaustion" requirement, which applies to all
challenges to agency action brought under the APA. Darby v. Cisneros, 509 U.S.
137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993). Federal courts do not have the
authority to require a plaintiff to exhaust administrative remedies prior to
judicial review where neither the relevant statute nor the agency rules "expressly
require[s]" exhaustion as a prerequisite to judicial review and where the action
has been considered "final" under the APA. Id. (emphasis added).

The apposite agency regulations at issue in this matter are found at Title 43
of the Code of Federal Regulations. It states in relevant part:

Any party adversely affected by the decision of the State Director after State
Director review, under s 3165.3(b) of this title, of a notice of violation or
assessment or of an instruction, order, or decision may appeal that decision to
the Interior Board of Land Appeals pursuant to the regulations set out in Part 4
*1233 of this title. 43 C.F.R. s 3165.4(a) (emphasis added).

Any person who is aggrieved by a final order of the Secretary under this section
may seek review of such order in the United States District Court for the
judicial district in which the alleged violation occurred. 43 C.F.R. s
3165.4(f) (emphasis added).

[7] Rather than expressly requiring it, 43 C.F.R. s 3165.4 provides for
administrative appeal of decisions made by BLM to the Interior Board of Land
Appeals prior to judicial review.

Second, the Department of Interior's regulations do not render the appealed
decision "inoperative" by virtue of an automatic stay. 43 C.F.R. s 4.21(b); see
Darby v. Cisneros, 509 U.S. at 154, 113 S.Ct. 2539. In fact, the Department of
Interior's regulations specifically state that an aggrieved party must
affirmatively "request a stay and make a compelling threshold showing to justify
the stay." 43 C.F.R. s 4.21(b). This process vests discretion in the Interior
Board of Land Appeals, whereas the APA requires unequivocally that the statute
itself must deem an action inoperative while administrative appeal is pending.
See Darby, 509 U.S. at 154, 113 S.Ct. 2539.

Because apposite administrative appeal regulations do not require
administrative appeal or provide procedures that render inoperative the decision
pending appeal, the plaintiffs were not required to exhaust administrative
remedies prior to seeking judicial review. See Darby, 509 U.S. at 154, 113 S.Ct.
2539. The defendants' reliance on Burlington Resources Oil & Gas Co. v. Colorado
Oil & Gas Comm'n is misplaced. Burlington simply provides that decisions made by
COGCC should be treated the same as those made by BLM and makes clear that
aggrieved parties are entitled to all of the appurtenant rights and appeals
processes associated with a decision made by BLM. See Burlington Resources Oil &
Gas Co. v. Colorado Oil & Gas Comm'n, 986 F.Supp. 1351, 1354 (D.Colo.1997)

I respectfully disagree with the court's position in Burlington that 43 C.F.R.
3165.3(a) requires administrative appeal. In fact, 43 C.F.R. 3165.3(a) provides
for notice to be given to an operating rights owner or operator to comply with any
provisions of a lease, which is not at issue in this case. I reject defendants'
motion to dismiss on the basis of exhaustion.

THEREFORE IT IS ORDERED that defendants/interveners Southern Ute Indian Tribe
and Amoco Production Company's Motion to Dismiss [# 60], filed November 30, 2000,
IS DENIED.

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