Advocates v. U.S. Forest Serv. (In re Region), Civil Action No. 13–cv–01723–RBJ

• Decision Date: 27 June 2014
• Docket Number: Civil Action No. 13–cv–01723–RBJ
• Citation: 52 F.Supp.3d 1174
• Parties: High Country Conservation Advocates, WildEarth Guardians, and Sierra Club, Plaintiffs, v. United States Forest Service, United States Department of Agriculture, United States Bureau of Land Management, United States Department of the Interior, Daniel Jirón, in his official capacity as Regional Forester for the U.S. Forest Service's Rocky Mountain Region, Scott Armentrout, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, and Ruth Welch, in her official capacity as the Bureau of Land Management's Colorado State Office Acting Director, Defendants, and Ark Land Company, Inc., and Mountain Coal Company, L.L.C., Intervenor–Defendants.
• Court: U.S. District Court — District of Colorado

52 F.Supp.3d 1174

High Country Conservation Advocates, WildEarth Guardians, and Sierra Club, Plaintiffs,

v.United States Forest Service, United States Department of Agriculture, United States Bureau of Land Management, United States Department of the Interior, Daniel Jirón, in his official capacity as Regional Forester for the U.S. Forest Service's Rocky Mountain Region, Scott Armentrout, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, and Ruth Welch, in her official capacity as the Bureau of Land Management's Colorado State Office Acting Director, Defendants,andArk Land Company, Inc., and Mountain Coal Company, L.L.C., Intervenor–Defendants.

Civil Action No. 13–cv–01723–RBJ

United States District Court,

D. Colorado.

Signed June 27, 2014

Jessica Frances Townsend, Edward Breckenridge Zukoski, Earthjustice Legal Defense Fund, Denver, CO, for Plaintiffs.

David B. Glazer, U.S. Department of Justice, San Francisco, CA, John S. Most, Washington, DC, for Defendants.

Scott Pringle Sinor, Dorsey & Whitney, LLP, Denver, CO, Michael Robert Drysdale, Dorsey & Whitney, LLP, Minneapolis, MN, for Intervenor–Defendants.

ORDER

R. Brooke Jackson, United States District Judge

The North Fork Valley in western Colorado is blessed with valuable resources. The area hosts several coal mines as well as beautiful scenery, abundant wildlife, and outstanding recreational opportunities. And as is sometimes the case in rich places like this, people disagree about how to manage the development of those resources. In the case before the Court, the plaintiff environmental organizations seek judicial review of three agency decisions that together authorized on-the-ground mining exploration activities in a part of the North Fork Valley called the Sunset Roadless Area. These exploration activities are scheduled to begin on July 1, 2014. Plaintiffs allege that these three agency decisions failed to comply with the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”) and must be set aside. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701–706.

I. BACKGROUNDA. The National Environmental Policy Act (“NEPA”)

The National Environmental Policy Act is one of our country's foundational environmental statutes. The law, however, does not prescribe any substantive environmental standards per se. Rather NEPA is a procedural statute designed to ensure public participation and transparent decisionmaking by federal agencies. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Before taking major action, NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”). 42 U.S.C. § 4332(2)(C). An EIS must take a “hard look” at the potential environmental impacts of the agency's proposed action. Robertson, 490 U.S. at 350, 109 S.Ct. 1835; New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 713 (10th Cir.2009).

“The EIS must also ‘rigorously explore and objectively evaluate all reasonable alternatives' to a proposed action in comparative form, so as to provide a ‘clear basis for choice among the options.’ ” WildEarth Guardians v. U.S. Forest Serv., 828 F.Supp.2d 1223, 1236 (D.Colo.2011)(quoting 40 C.F.R. § 1502.14). “Reasonable alternatives are those which are ‘bounded by some notion of feasibility,’ and, thus, need not include alternatives which are remote, speculative, impractical, or ineffective. Id. at 1236–37 (quoting Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1172 (10th Cir.2002) and citing Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1039–40 (10th Cir.2001)). “The EIS also must briefly discuss the reasons for eliminating any alternative from detailed study.” Id. (citing 40 C.F.R. § 1502.14(a)). To determine whether alleged deficiencies in an EIS merit reversal, the Court applies “a rule of reason standard (essentially an abuse of discretion standard).” Utahns for Better Transp., 305 F.3d at 1163.

NEPA does not require an explicit cost-benefit analysis to be included in an EIS. 40 C.F.R. § 1502.23 (“[T]he weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations”); see alsoOregon Natural Res. Council v. Marsh, 832 F.2d 1489, 1499 (9th Cir.1987), rev'd on other grounds,490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377; North Carolina Alliance for Transp. Reform, Inc. v. U.S. Dep't of Transp., 151 F.Supp.2d 661, 692 (M.D.N.C.2001). However, where such an analysis is included it cannot be misleading. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446–48 (4th Cir.1996) (“it is essential that the EIS not be based on misleading economic assumptions”); Johnston v. Davis, 698 F.2d 1088, 1094–95 (10th Cir.1983) (disapproving of misleading statements resulting in “an unreasonable comparison of alternatives” in an EIS).

As an alternative or precursor to an EIS, an agency may prepare an environmental assessment (“EA”) to “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1). The EA, while typically a more concise analysis than an EIS, must still evaluate the “need for the proposal, ... alternatives as required by [NEPA] section 102(2)(E), [and] the environmental impacts of the proposed action and alternatives.” 40 C.F.R. § 1508.9(b). If the agency concludes that the action will not cause significant impacts, it may issue a Finding of No Significant Impact (“FONSI”) and need not prepare an EIS. 40 C.F.R. § 1508.13.

B. Coal Leasing on Federal Land

The BLM manages coal leases underlying Forest Service Land pursuant to the Mineral Leasing Act, 30 U.S.C. § 181 et seq. Because the Forest Service retains management authority over the surface lands overlying these leases, the BLM must first obtain the consent of the Forest Service before approving leases. 30 U.S.C. §§ 201(a)(3)(iii), 207(a); 43 C.F.R. § 3425.3(b).

Prior to granting consent, the Forest Service is authorized to impose conditions to protect forest resources. Id. To be sure, conservation is not the Forest Service's sole mission. The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir.2008) (“Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands. Indeed, since Congress' early regulation of the national forests, it has never been the case that the national forests were ... to be set aside for non-use.”) (citing United States v. New Mexico, 438 U.S. 696, 716 n. 23, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978)) (internal quotation marks omitted).

The Forest Service and BLM lease modifications are subject to the same dual-agency permitting process. 43 C.F.R. § 3432.3(d). A different set of regulations govern the process of exploring for coal—whether inside or outside of an existing lease. An exploration plan can be approved without a separate license if the area to be explored lies within an existing lease. 43 C.F.R. § 3480. If, however, the area to be explored lies outside an existing lease, exploration requires a separate exploration license. 43 C.F.R. § 3410.

C. The Sunset Roadless Area

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. The parties cannot agree about whether the area should be called pristine or disturbed. It appears undisputed that there have been human activities in the area making it less pristine than the nearby West Elk Wilderness Area. See, e.g., FSLeasing–0046963, 0046967.¹ But at the same time the area is undoubtedly wild, relatively empty, and home to diverse flora and fauna. See FSLeasing–0046800, –0046987, and –0047275.

Recreational opportunities are available in the area as well, although the parties dispute how many opportunities are available and the quality of those opportunities. At a minimum, there are two trails in the area—the Sunset Trail and Trail 8152—though they do not receive heavy use. FSLeasing–0046955, 0046836 (characterizing the Sunset Trail as “a non-system nonmotorized trail that is mostly overgrown with minimal use by the public”). The area is more popular for dispersed recreational activities. See BLM_EP–13602; BLM_EP–13885–86 (noting that the area “is heavily used during hunting season” and nearby areas are “widely used” for dispersed recreation).

Next door to the Sunset Roadless Area sits the West Elk coal mine. This underground mine has been operating since 1981 mostly beneath public lands managed by the Forest Service. See WildEarth Guardians v. U.S. Forest Serv., 828 F.Supp. at 1227.

D. The Parties

Plaintiffs in this case are a collection of non-profit, environmental groups. Since 1977, High Country Conservation Advocates has been operating in the Gunnison area, working to advance its members' interest in preserving natural values and open space in Gunnison County. [Second Amended Compl., ECF No. 30 at 4.] Plaintiff WildEarth Guardians is a “non-profit environmental organization dedicated to protecting and restoring the wildlife, wild places, and wild rivers throughout the American West.” Id. These groups participated in the public comment process associated with the Lease Modifications and Exploration Plan challenged in this case. Id. at 5. Members of these organizations recreate in the Sunset Roadless Area and nearby public lands; they visit for the opportunity to enjoy the solitude and quiet of the area as well as the opportunity to hike, camp, and observe wildlife. Id. Plaintiff Sierra Club, which joined as a plaintiff later in the litigation, is a national environmental non-profit group...