784 F.3d 677 (10th Cir. 2015), 12-1508, WildEarth Guardians v. United States Fish & Wildlife Service

Docket Nº:12-1508, 12-1509
Citation:784 F.3d 677
Opinion Judge:HOLMES, Circuit Judge.
Party Name:WILDEARTH GUARDIANS; ROCKY MOUNTAIN WILD; THE TOWN OF SUPERIOR, a Colorado municipality, Plaintiffs - Appellants, v. UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR; S.M.R. JEWELL, acting in her official capacity as Secretary of the Interior; DANIEL M. ASHE, acting in his official capacity as Director of the United
Attorney:Neil Levine (James Jay Tutchton, WildEarth Guardians, Centennial, Colorado, and Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, Timothy Gablehouse and Melanie Granberg, Gablehouse Granberg, Denver, Colorado, with him on the briefs), Grand Canyon Trust, Denver, Colorado, for Plaintiffs- Ap...
Judge Panel:Before HARTZ, HOLMES, and BACHARACH,[*] Circuit Judges.
Case Date:April 17, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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784 F.3d 677 (10th Cir. 2015)

WILDEARTH GUARDIANS; ROCKY MOUNTAIN WILD; THE TOWN OF SUPERIOR, a Colorado municipality, Plaintiffs - Appellants,

and

CITY OF GOLDEN, COLORADO, Plaintiff,

v.

UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR; S.M.R. JEWELL, acting in her official capacity as Secretary of the Interior; DANIEL M. ASHE, acting in his official capacity as Director of the United States Fish and Wildlife Service; NOREEN WALSH, acting in her official capacity as Regional Director of the Mountain-Prairie Region of the United States Fish and Wildlife Service; DAVID LUCAS, acting in his official capacity as Rocky Flats National Wildlife Refuge Manager, Defendants - Appellees,

and

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF JEFFERSON, COLOARDO; CITY OF ARVADA; JEFFERSON PARKWAY PUBLIC HIGHWAY AUTHORITY; COLORADO NATURAL RESOURCE TRUSTEES OF THE STATE OF COLORADO; THE BOARD OF LAND COMMISSIONERS OF THE STATE OF COLORADO, Defendant Intervenors - Appellees

Nos. 12-1508, 12-1509

United States Court of Appeals, Tenth Circuit

April 17, 2015

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:11-CV-03294-PAB).

Neil Levine (James Jay Tutchton, WildEarth Guardians, Centennial, Colorado, and Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, Timothy Gablehouse and Melanie Granberg, Gablehouse Granberg, Denver, Colorado, with him on the briefs), Grand Canyon Trust, Denver, Colorado, for Plaintiffs- Appellants.

Mary Gabrielle Sprague (Robert G. Dreher, Acting Assistant Attorney General, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC; Andrew C. Mergen and Ellen J. Durkee, U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC, with her on the brief), U.S. Department of Justice, Environment & Natural Resources Division, Appellate Section, Washington, DC, for Defendants-Appellees.

Howard Kenison and Patrick G. Compton, Lindquist & Vennum LLP, Denver, Colorado; Ellen G. Wakeman, Jefferson County Attorney, Writer Mott, Assistant County Attorney, and Eric Butler, Assistant County Attorney, Jefferson County Attorney's Office, Golden, Colorado; Christopher K. Daly, City Attorney, and Roberto Ramirez, Assistant City Attorney, City of Arvada City Attorney's Office, Arvada, Colorado; John W. Suthers, Attorney General, Daniel S. Miller, Senior Assistant Attorney General, Edgar Hamrick, First Assistant Attorney General, Jason King, Assistant Attorney General, and Heather Warren, Assistant Attorney General, Office of the Attorney General, State of Colorado, Denver, Colorado, on the brief for Defendant-Intervenors-Appellees.

Before HARTZ, HOLMES, and BACHARACH,[*] Circuit Judges.

OPINION

Page 680

HOLMES, Circuit Judge.

The U.S. Fish and Wildlife Service (" the Service" ) conveyed to a consortium of local

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governments a strip of land (" the corridor" ) for the construction of a parkway. Its decision was challenged on various environmental grounds by several parties, including WildEarth Guardians, Rocky Mountain Wild, the Town of Superior, and the City of Golden (collectively, " Appellants" ). The district court affirmed the Service's actions, and Appellants brought their claims here. They assert that the Service violated the Rocky Flats National Wildlife Refuge Act (" the Rocky Flats Act" or " RFA" ), the National Environmental Policy Act (" NEPA" ), and the Endangered Species Act (" the ESA" ). With jurisdiction granted by 28 U.S.C. § 1291, we affirm the judgment of the district court.

I

Rocky Flats (at times, " the Flats" ) is comprised of roughly 6,200 acres in Colorado. For a number of years the Department of Energy (" Energy" ) and its predecessor agency used the central part of the Flats to manufacture components involved in nuclear weapons, while the remainder of the Flats sat idle. As a result of the weapons work, some of the land became polluted by various hazardous materials, including plutonium. In 1989, a large-scale cleanup operation began. Recognizing the progress that had been made in the cleanup effort, Congress passed the Rocky Flats Act in 2001. National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, 115 Stat. 1012, § § 3171-82 (2001), 16 U.S.C. § 668dd note.1 Under the Rocky Flats Act, Energy was to manage the central area of the Flats (the locus of the earlier nuclear activity) and the balance of the Flats was to become a National Wildlife Refuge run by the Service, an arm of the Department of the Interior.2 See generally RFA § § 3175-77. The Rocky Flats Act further provided that Energy would transfer to the Service administrative jurisdiction of the land marked for refuge status as soon as the EPA determined the cleanup was complete. See id. § 3175(a). Importantly, the Rocky Flats Act set aside a piece of land along the Flats's border to be made available for transportation improvements. See id. § 3174(e)(1)(A). To facilitate the transportation improvements, the Rocky Flats Act provided that, " [o]n submission of an application meeting" certain criteria not relevant to this appeal, " [Energy], in consultation with the [Service], shall make available land along the eastern boundary of Rocky Flats for the sole purpose of transportation improvements along Indiana Street." Id. The transfer was to take place within a month of the EPA certifying the cleanup as complete. Id. § 3175(a)(2), (3).

Pursuant to the Rocky Flats Act, Energy transferred the Flats to the Service when the EPA issued its certification in 2007. Not long after, Energy and the Service mutually decided that the applications for the transportation improvements were the Service's to consider, in consultation with Energy. And so it was that the

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Service ended up giving the green light to the exchange underlying this appeal, with Energy's ancillary approval. In that exchange, the Service engineered a complicated deal amongst a number of different parties in which it added some land to the refuge but transferred a roughly 300-foot-wide, 100-acre strip of land to a consortium of local governments that planned to construct a parkway as part of a mostly-completed beltway encircling the Denver metropolitan area.

The Preble's Meadow Jumping Mouse (sometimes, " the mouse" ) is a threatened species with critical habitat in the corridor. Prior to its final approval of the land exchange, and pursuant to the ESA, the Service issued two biological opinions on the potential consequences of the exchange to the mouse. The product of those opinions was a determination that the exchange would not jeopardize the continued existence of the mouse or adversely modify its critical habitat.

In addition to the ESA, NEPA imposed on the Service various obligations regarding the exchange. Most relevant here, NEPA directs federal agencies to prepare an environmental impact statement (" EIS" ) whenever they undertake " major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). To determine whether the statutory conditions for preparation of an EIS are present, an agency generates an environmental assessment (" EA" ). See 40 C.F.R. § 1501.4(b). If the EA leads to the conclusion that no EIS is necessary, the agency creates a " finding of no significant impact" (" FONSI" ). See id. § 1501.4(e). The Service in this case issued an EA and a FONSI rather than an EIS. After the EA was circulated for public comment, the exchange went ahead as planned.

Displeased by the land exchange, Appellants sued in federal district court, challenging the Service's actions on three grounds: (1) they violated the Rocky Flats Act; (2) they violated NEPA; and (3) they violated the ESA. The district court rejected all three claims and upheld the exchange. Appellants timely appealed, reviving the same three grounds.

II

We consider the appeal under the analytical rubric established by the Administrative Procedure Act (" APA" ). See 5 U.S.C. § 706(2)(C) (providing that the courts will set aside agency action taken " in excess of statutory jurisdiction" ); Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1008 (10th Cir. 2012) (applying the APA to a NEPA claim); Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310, 1320 (10th Cir. 2007) (applying the APA to an ESA claim). Under the APA, we owe the district court's determination no deference. See Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1226-27 (10th Cir. 2011). However, we may only set aside the Service's actions if, as relevant to the arguments here, it acted arbitrarily or capriciously, not in accordance with the law, beyond its jurisdictional authority, or " without observance of procedure required by law." 5 U.S.C. § 706(2)(A), (C), (D).

That test is met when an agency fails to consider " the relevant data" or fails to put forth " a rational connection between that data and its decision." WildEarth Guardians v. Nat'l Park Serv., 703 F.3d 1178, 1182-83 (10th Cir. 2013). It is also met when the agency " entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in

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view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). " Our deference to the agency is more substantial when the challenged decision involves technical or scientific matters within the agency's area of expertise." Nat'l Park Serv., 703 F.3d at 1183.

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