Advocates v. U.S. Forest Serv.

Decision Date10 August 2018
Docket NumberCivil Action No. 17-cv-03025-PAB
Citation333 F.Supp.3d 1107
Parties HIGH COUNTRY CONSERVATION ADVOCATES, WildEarth Guardians, Center for Biological Diversity, Sierra Club, and Wilderness Workshop, Plaintiffs, v. UNITED STATES FOREST SERVICE, U.S. Department of Agriculture, Daniel Jirón, in his official capacity as Acting Under Secretary of Agriculture for Natural Resources and Environment, U.S. Department of Agriculture, Scott Armentrout, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, United States Department of the Interior, Bureau of Land Management, and Katharine MacGregor, in her official capacity as Deputy Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior, Defendants, and Mountain Coal Company, LLC, Defendant-Intervenor.
CourtU.S. District Court — District of Colorado

Edward Breckenridge Zukoski, Mary Emily Splitek, Earthjustice, Denver, CO, for Plaintiffs.

John S. Most, Michelle-Ann C. Williams, U.S. Department of Justice, Washington, DC, for Defendants.

Michael Robert Drysdale, Dorsey & Whitney, LLP, Minneapolis, MN, Sarah Elizabeth Goldberg, Dorsey & Whitney, LLP, Salt Lake City, UT, for Defendant-Intervenor.


PHILIP A. BRIMMER, United States District Judge

This matter is before the Court on plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief and Petition for Review of Agency Action [Docket No. 39] and Plaintiffs' Amended Opening Brief on the Merits [Docket No. 47]. Plaintiffs challenge the approval of the North Fork Exception to the Colorado Roadless Rule ("CRR") by the United States Forest Service ("Forest Service") and the joint approval of lease modifications in favor of defendant-intervenor Mountain Coal Company, LLC ("Mountain Coal") by the Forest Service and Bureau of Land Management ("BLM") (collectively with the Forest Service and the individual defendants named in their official capacities, the "Agencies"). Plaintiffs' claims arise under the federal Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. , and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331 et seq. Also before the Court is the Motion of the Institute for Policy Integrity at New York University School of Law to Participate as Amicus Curiae and with Proposed Amicus Brief in Support of Plaintiffs [Docket No. 41]. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702.


This lawsuit is part of an ongoing dispute over proposed exploration and coal mining activities in and around the Sunset Roadless Area near the west flank of Mount Gunnison in Colorado. As explained by District Judge R. Brooke Jackson in his 2014 decision:

The Sunset Roadless Area contains 5,800 acres of relatively undeveloped forest and scrub land in a part of western Colorado called the North Fork Valley. Mount Gunnison and the West Elk Wilderness lie to the east....[T]here have been human activities in the area making it less pristine than the nearby West Elk Wilderness Area. But at the same time the area is undoubtedly wild, relatively empty, and home to diverse flora and fauna.
Recreational opportunities are available in the area as well,...there are two trails...– the Sunset Trail and Trail 8152 – though they do not receive heavy use. The area is more popular for dispersed recreational activities.

High Country Conservation Advocates v. United States Forest Serv. , 52 F.Supp.3d 1174, 1183 (D. Colo. 2014) (citations and footnote omitted) (" High Country ")

The Sunset Roadless Area is located on National Forest lands managed by the Forest Service. The BLM is, however, responsible for managing coal leases on Forest Service land. See 30 U.S.C. § 181 et seq. Coal leases and lease modifications are subject to a dual-agency permitting process by which the BLM must obtain the consent of the Forest Service before approving leases or lease modifications. High Country , 52 F.Supp.3d at 1182-83 (citing 30 U.S.C. §§ 201(a)(3)(iii), 207(a) ; 43 C.F.R. §§ 3425.3(b), 3432.3(d) ).

Mountain Coal currently operates the West Elk Coal Mine, an underground mine that runs below parts of the Grand Mesa, Uncompahgre, and Gunnison National Forests. R. at FSLeasingII-0000046; see also WildEarth Guardians v. U.S. Forest Serv. , 828 F.Supp.2d 1223, 1227 (D. Colo. 2011) (" WildEarth "). Plaintiffs, a group of environmental advocacy organizations, challenge the Agencies' approval of the North Fork Exception and modifications to Mountain Coal's lease. See Docket No. 1 at 17, ¶ 50. The changes allow Mountain Coal to perform exploration activities, including road construction, with a view toward expanded mining operations into the Sunset Roadless Area. Id. at 18, ¶ 52.

The present dispute has its roots in earlier administrative approval processes and the lawsuit between the parties that concluded with Judge Jackson's order in HighCountry . In 2012, the Forest Service approved the CRR, which "extended roadless protections to a vast amount of acreage that was previously unprotected under the national rule in exchange for various concessions from environmentalists." High Country , 52 F.Supp.3d at 1184. The CRR included a provision, referred to as the North Fork Exception, that allowed "for road construction related to coal mining on about 20,000 acres of previously protected land including the Sunset Roadless Area," the Pilot Knob Roadless Area, and the Flatirons Roadless Area. Id.1 After the CRR was approved, the BLM approved modifications to the lease held by Mountain Coal, adding new lands for the West Elk Mine, and approved an exploration plan for the newly-leased area. Id. The environmental groups filed suit in July 2013, challenging the CRR, the lease modifications, and the exploration plan. Id. at 1185.

On June 27, 2014, Judge Jackson issued his order on the merits in High Country . He found that the lease modification's final environmental impact statement improperly discussed only the beneficial impacts expected to result from additional mining, but failed to consider environmental harms that would result. High Country , 52 F.Supp.3d at 1191. Specifically, Judge Jackson found that it was arbitrary for the Forest Service to, without explanation, quantify the expected economic benefits of additional mining, but fail to quantify the expected economic harms related to the expected increase in greenhouse gas emissions. Id. at 1190-91. He noted that the draft version of the environmental impact statement had contained such a quantification based on the "social cost of carbon protocol." Id. The social cost of carbon protocol is "designed to quantify a project's contribution to costs associated with global climate change [and] was created with the input of several departments, public comments, and technical models." Id. at 1190. It was "expressly designed to assist agencies in cost-benefit analyses associated with rulemakings, but the EPA has expressed support for its use in other contexts." Id. ; see also R. at FSLeasingII-031713-17 (EPA, EPA Fact Sheet, Social Cost of Carbon (Dec. 2016) ). By the Forest Service quantifying benefits, but failing to quantify harms, Judge Jackson found that "[i]n effect the agency prepared half of a cost-benefit analysis, incorrectly claimed that it was impossible to quantify the costs, and then relied on the anticipated benefits to approve the project." High Country , 52 F.Supp.3d at 1191. Judge Jackson similarly found that the CRR's final environmental impact statement ("CRR FEIS") improperly failed to disclose the expected greenhouse gas emissions from the North Fork Exception allowing for mining operations, while at the same time basing approval on projected benefits. Id. at 1195 ("It is arbitrary to offer detailed projections of a project's upside while omitting a feasible projection of the project's costs." (citations omitted) ). Consistent with these findings, the court enjoined Mountain Coal from moving ahead with the exploration plan and ordered briefing on an appropriate remedy. Id. at 1201.

On September 11, 2014, with the benefit of the parties' briefing on the appropriate remedy, Judge Jackson vacated the approvals of the lease modifications and the exploration plans.

High Country , No. 13-cv-01723, Docket No. 101 at 7. With respect to the CRR, Judge Jackson severed the North Fork Exception from the remainder of the CRR and vacated the North Fork Exception. Id. Judge Jackson did not remand any issues for reconsideration. High Country , No. 13-cv-01723, Docket No. 102 at 2.

After the High Country court entered judgment for plaintiffs, Mountain Coal renewed its mine expansion applications. R. at FSLeasingII-0000132 ("Applications for lease modification were resubmitted to BLM on January 30, 2015 and sent to the Forest Service for consent to lease."). It is the regulatory actions taken by the Forest Service and BLM in relation to these renewed applications that are at issue in this proceeding. The Forest Service initiated a rulemaking to reimplement the North Fork Exception with the purpose of "provid[ing] management direction for conserving about 4.2 million acres of [Colorado roadless areas] while addressing the State's interest in not foreclosing opportunities for exploration and development of coal resources in the North Fork Coal Mining Area." R. at CRR2-0000011. The Forest Service also reaffirmed that the new rulemaking was meant to accomplish the purposes of the 2012 CRR rulemaking. Id.2 In considering whether to reimplement the North Fork Exception, the Forest Service prepared a draft supplemental environmental impact statement and then a supplemental final environmental impact statement (the "Exception SFEIS"). See R. at CRR2-0000001. As part of a revised economic analysis, the Exception SFEIS used the social cost of carbon protocol to determine the expected harm from the amount of carbon predicted to be mined in the North Fork Area. R. at CRR2-0000234-267. On December 19, 2016...

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    ...only whether the agency took a ‘hard look’ at information relevant to the decision." High Country Conservation Advocates v. United States Forest Serv. , 333 F. Supp. 3d 1107, 1119 (D. Colo 2018).IV. DISCUSSIONA. Whether BLM and USFS were permitted to defer analysis of fracking impacts until......
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