Bd. of Cnty. Commissioners of the Cnty. of San Miguel v. U.S. Bureau of Land Mgmt.

• Decision Date: 09 February 2022
• Docket Number: Civil Action No. 17-cv-02432-JLK
• Parties: The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SAN MIGUEL, Rocky Mountain Wild, San Juan Citizens Alliance, and Conservation Colorado, Plaintiffs/Petitioners, v. UNITED STATES BUREAU OF LAND MANAGEMENT, United States Department of the Interior, Defendants/Respondents.
• Court: U.S. District Court — District of Colorado

584 F.Supp.3d 949

The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SAN MIGUEL, Rocky Mountain Wild, San Juan Citizens Alliance, and Conservation Colorado, Plaintiffs/Petitioners,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, United States Department of the Interior, Defendants/Respondents.

Civil Action No. 17-cv-02432-JLK

United States District Court, D. Colorado.

Signed February 9, 2022

584 F.Supp.3d 953

Travis Earl Stills, Energy & Conservation Law, Durango, CO, Matthew David Sandler, Matt Sandler Law, Louisville, CO, for Plaintiffs/Petitioners.

Leilani Doktor, U.S. Department of Justice, Civil Rights Division, Environment and Natural Resources Division, Michael Sean Sawyer, U.S. Department of Justice, Washington, DC, Rickey Doyle Turner, U.S. Department of Justice, Denver, CO, for Defendants/Respondents.

MEMORANDUM OPINION AND ORDER

Kane, SENIOR UNITED STATES DISTRICT JUDGE

The Board of County Commissioners of the County of San Miguel, Colorado; Rocky Mountain Wild; San Juan Citizens Alliance; and Conservation Colorado bring this action against the United States Bureau of Land Management ("BLM") and the United States Department of the Interior ("DOI"). Plaintiffs challenge the BLM's issuance of ten oil and gas leases for parcels in Southwest Colorado that are adjacent to and/or overlap Gunnison sage-grouse habitat and proposed and existing Areas of Critical Environmental Concern ("ACEC"). Plaintiffs allege the BLM did not fulfill its public-disclosure and informed-decision-making duties under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , that it failed to properly consult with the United States Fish and Wildlife Service ("FWS") pursuant to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq. , and that it violated the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701 et seq. Because the BLM did not comply with NEPA and the ESA, I find in favor of Plaintiffs on six of their related claims and direct the parties to submit briefing on the appropriate remedy.¹

I. LEGAL FRAMEWORK

A. NEPA Requirements

"The twin aims of NEPA are to require agencies to consider every significant aspect of the environmental impact of a proposed action and to facilitate public involvement."

584 F.Supp.3d 954

High Country Conservation Advocs. v. U.S. Forest Serv. , 951 F.3d 1217, 1223 (10th Cir. 2020) (internal quotation marks and citation omitted). "NEPA creates ‘a set of action-forcing procedures that require that agencies take a hard look at environmental consequences, and that provide for broad dissemination of relevant environmental information.’ " Id. (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ).

Specifically, "NEPA requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts ...." New Mexico ex rel. Richardson v. BLM , 565 F.3d 683, 703 (10th Cir. 2009). Federal agencies must prepare an Environmental Impact Statement ("EIS") for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) ; Richardson , 565 F.3d at 703.² An EIS sets out reasonable planning alternatives for a proposed action, generally including a "preferred alternative," and it analyzes the environmental impacts of each. 40 C.F.R. § 1502.14. An EIS must include a "no action alternative," id. § 1502.14(c), and it must specify the underlying purpose and need for the proposed action, id. § 1502.13.

Where it is unclear what a federal action's impact will be or where actions are not likely to significantly affect the quality of the human environment, agencies may first prepare an environmental assessment ("EA"). Id. § 1501.3. Both an EA and an EIS must consider a range of reasonable alternatives, see id. §§ 1501.5(c)(2), 1502.14, but the depth of discussion and analysis required for an EIS is more extensive than for an EA, see, e.g. , W. Watersheds Project v. BLM , 721 F.3d 1264, 1274 (10th Cir. 2013). If an agency determines after preparing an EA that the action will not have significant effects on the quality of the human environment, the agency may issue a Finding of No Significant Impact ("FONSI"). Richardson , 565 F.3d at 703 ; 40 C.F.R. §§ 1501.5, 1501.6. But, if it becomes apparent that the action is likely to have a significant impact, an EIS must also be prepared. Richardson , 565 F.3d at 703.

A change in circumstances after completion of a NEPA analysis may compel various degrees of response. For example, an agency is required to supplement an existing EIS when "[t]he agency makes substantial changes to the proposed action that are relevant to environmental concerns" or when "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(d)(1). The decision to prepare a supplemental NEPA document mirrors the decision to prepare one in the first instance: "If there remains major Federal action to occur, and if the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared." Marsh v. Oregon Nat. Res. Council , 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (alterations and internal quotation marks omitted). However, new NEPA documents are not required when previous NEPA documents allowed the agency to take a "hard look" at the potential environmental consequences of the subsequently proposed action. Pennaco Energy, Inc. v. DOI , 377 F.3d 1147, 1151 (10th Cir. 2004) ; see also Marsh , 490 at 373, 109 S.Ct. 1851 ("[A]n agency need not supplement an EIS

584 F.Supp.3d 955

every time new information comes to light after the EIS is finalized.")

The Tenth Circuit has recognized that agencies may use non-NEPA procedures—including completing a Determination of NEPA Adequacy ("DNA")—to decide whether new NEPA documentation is required. See Pennaco , 377 F.3d at 1162. Unlike preparing an EA and issuing a FONSI pursuant to NEPA, the DNA is used to terminate the NEPA process without the preparation of a new NEPA document, e.g., a new or supplemental EA or EIS. See id. at 1152 ("DNAs are forms designed to allow BLM employees to determine whether they properly can rely on existing NEPA documents.").

The NEPA regulations encourage agencies to "tier" their environmental analyses when doing so "would eliminate repetitive discussions of the same issues, focus on the actual issues ripe for decision, and exclude from consideration issues already decided or not yet ripe at each level of environmental review." 40 C.F.R. § 1501.11(a). Tiering occurs "[w]hen an agency has prepared an environmental impact statement or environmental assessment for a program or policy and then prepares a subsequent statement or assessment on an action included within the entire program or policy (such as a project- or site-specific action)." Id. § 1501.11(b). Then, the subsequent, or tiered, document "needs only to summarize and incorporate by reference the issues discussed in the broader document." Id. Even though tiering is authorized, agencies still must determine whether and when a successive NEPA document is necessary.

Ultimately, "NEPA does not require that an agency give any particular weight to environmental considerations." Forest Guardians v. U.S. Forest Serv. , 495 F.3d 1162, 1172 (10th Cir. 2007). "[T]he Act simply imposes procedural requirements intended to improve environmental impact information available to agencies and the public." Richardson , 565 F.3d at 704 (citing Marsh , 490 U.S. at 371, 109 S.Ct. 1851 ). Thus, it "merely prohibits uninformed—rather than unwise—agency action." Robertson , 490 U.S. at 351, 109 S.Ct. 1835.

B. ESA Requirements

In contrast, the ESA imposes substantive and procedural requirements on federal agencies. See Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 1105 (10th Cir. 2010). The ESA declares that it is "the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." 16 U.S.C. § 1531(c)(1). The Act and the corresponding regulations set out the process for determining whether species are endangered or threatened. See id. § 1533; 50 C.F.R. pt. 424. When a proposed species is found to be endangered or threatened it is added to that list of species, or "listed," see 16 U.S.C. § 1533, and its critical habitat must be designated "to the maximum extent prudent and determinable," 50 C.F.R. § 424.12(a).

Section 7 of the ESA, titled Interagency Cooperation, directs all federal agencies to engage the Secretary of the Interior³ in examining the impact of their actions on listed species and those proposed for listing. Relevant here, federal agencies are to "confer with the Secretary on any agency action which is likely to jeopardize the

584 F.Supp.3d 956

continued existence of any [proposed] species ... or result in the destruction or adverse modification of critical habitat proposed to be designated for such species." 16 U.S.C. § 1536(a)(4) ; 50 C.F.R. § 402.10. For already listed species, federal agencies must "consult" with the Secretary to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat." 16 U.S.C. § 1536(a)(2) ; 50 C.F.R. § 402.01.

The Fish and Wildlife Service, the relevant bureau of the Department of the Interior, may be involved in agency assessments regarding listed species via "early consultation," see 50 C.F.R. § 402.11, "informal consultation," see id. § 402.13, or "formal consultation," see id. §...