Colorado Envtl. Coal. v. Office of Legacy Mgmt.

• Citation: 819 F.Supp.2d 1193
• Decision Date: 18 October 2011
• Docket Number: Civil Action No. 08–cv–01624–WJM–MJW.
• Parties: COLORADO ENVIRONMENTAL COALITION; Information Network for Responsible Mining; Center for Native Ecosystems; Center for Biological Diversity; and Sheep Mountain Alliance, Plaintiffs, v. OFFICE OF LEGACY MANAGEMENT; and United States Department of Energy, Defendants.
• Court: U.S. District Court — District of Colorado

819 F.Supp.2d 1193

COLORADO ENVIRONMENTAL COALITION; Information Network for Responsible Mining; Center for Native Ecosystems; Center for Biological Diversity; and Sheep Mountain Alliance, Plaintiffs,

v.OFFICE OF LEGACY MANAGEMENT; and United States Department of Energy, Defendants.

Civil Action No. 08–cv–01624–WJM–MJW.

United States District Court, D. Colorado.

Oct. 18, 2011.

Brad A. Bartlett, Travis Earl Stills, Durango, CO, Jeffrey C. Parsons, Roger Flynn, Jeffrey C. Parsons, Attorney at Law, Lyons, CO, for Plaintiffs.

Andrew Allen Smith, U.S. Attorney's Office–Albuquerque, Albuquerque, NM, Marissa Ann Pirpoato, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION AND ORDER

WILLIAM J. MARTÍNEZ, District Judge.

This matter is before the Court on Plaintiffs' appeal seeking judicial review of (1) Defendants' decision in 2007 to expand the Uranium Lease Management Program (“ULMP”) in southwestern Colorado; (2) Defendants' issuance of leases to uranium mining companies under the ULMP; and (3) Defendants' approvals of exploration or reclamation activities on certain lease tracts. The matter has been fully briefed (ECF No. 78, 82, 88), and Defendants have submitted the administrative record to the Court (ECF No. 19, 59). After carefully analyzing the briefs and the administrative record, the Court VACATES IN PART and REMANDS.

I. JURISDICTION

The Court has jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), and 5 U.S.C. §§ 701–706 (the Administrative Procedure Act (“APA”)).¹

II. BACKGROUND

A. Factual Background

This case involves potential uranium ² and vanadium ³ mining on approximately 27,000 acres of land in the Uravan Mineral Belt in Mesa, Montrose, and San Miguel Counties in southwestern Colorado. (AR002620, AR002623.⁴) The Office of Legacy Management, a division of the United States Department of Energy (collectively, “DOE”), manages the land under the ULMP. (AR002607, AR002613.)

This area in southwestern Colorado has been mined for uranium and vanadium under government programs in the past. Following World War II, in order to develop a domestic supply of uranium to meet the nation's defense needs, Congress authorized DOE's predecessor, the Atomic Energy Commission (“AEC”), to withdraw federal lands from public use and lease them to uranium mining companies. (AR002614.) By 1949, approximately 25,000 acres of land had been withdrawn for uranium mining. ( Id.) The first leasing program, conducted between 1949 and 1962, produced more than 1.2 million pounds of uranium and 6.8 million pounds of vanadium, and generated $5.9 million in royalties to the federal government. ( Id.)

In 1974, AEC initiated a second leasing program, the ULMP, involving 38 lease tracts on the same land at issue in this action, and five lease tracts in Utah and New Mexico. (AR002615.) ⁵ In 1984, lease agreements were renewed (for a second 10–year term) for 33 of these 43 lease tracts. (AR002616.) ⁶ Between 1974 and 1994, the ULMP leaseholders produced approximately 6.5 million pounds of uranium and 33.4 million pounds of vanadium, generating $53 million in royalties to the federal government. ( Id.)

In 1994, the 30 remaining leases were allowed to expire, and DOE conducted an environmental assessment to determine whether to continue leasing under the ULMP. ( Id.) In 1995, DOE issued a Final Environmental Assessment and Finding of No Significant Impact, resolving to continue the ULMP. (AR000001–109.) In 1996 and 1997, DOE entered into new lease agreements with 15 leaseholders. (AR002616.) ⁷ After two more leaseholders relinquished their leases in the year 2000, there were 13 active lease tracts and 25 inactive lease tracts on ULMP land.

In June 2005, with the 13 active leases nearing expiration, DOE decided to conduct another environmental assessment of the ULMP, which is the assessment at issue in this administrative appeal. (AR000114–17.) At that time, DOE noted that “[a] recent increase in the demand for uranium and vanadium has prompted DOE to consider extending the program, and increasing the number of leases [back] to 38 for exploration and production.” (AR000114.) ⁸

On August 10, 2005, DOE invited the Bureau of Land Management (“BLM”), the United States Fish and Wildlife Service (“FWS”), and the Colorado Department of Natural Resources to serve as cooperating agencies in the environmental assessment. (AR000154–59.) On August 10 and 11, 2005, DOE held public scoping meetings regarding the scope of the environmental assessment to be conducted. (AR000144–146, AR000161–175.)

In July 2006, DOE released its Draft Programmatic Environmental Assessment (“Draft EA”), which discussed three alternatives for managing the lease tracts, and the environmental effects of each. (AR001419–1574.) DOE also provided notice to the public and an opportunity to comment regarding the Draft EA. (AR001417–18.) Plaintiffs, among others, submitted comments regarding the Draft EA. (AR001625–2010.)

In July 2007, DOE released its Final Programmatic Environmental Assessment (“EA”). (AR002593–2789.) The EA evaluated three alternatives: (1) the Expanded Program Alternative (DOE's preferred alternative), in which the leasing program would be expanded to include 38 leases on all DOE-managed lands in the Uravan Mineral Belt; (2) the Existing Program Alternative, in which only the 13 active leases would be extended; and (3) the No Action Alternative, in which the current leases would be allowed to expire, and either DOE would continue to manage the 27,000 acres of land without leasing, or the land would be returned to the public domain under BLM's administrative control. (AR002618–20.) ⁹ The EA described the environmental setting on and near DOE's lease tracts (AR002657–84), and evaluated the likely environmental impacts of each of the three alternatives (AR002685–2736). The EA also listed the public comments to the Draft EA and DOE's responses. (AR002762–87.)

As a result of the analysis in the EA, DOE issued a Finding of No Significant Impact (“FONSI”), determining to proceed with DOE's preferred alternative of expanding the ULMP to lease all 38 lease tracts. (AR002790–2800.) The FONSI concluded that “the proposed action does not constitute a major Federal action significantly affecting the quality of the human environment. Therefore, preparation of an environmental impact statement is not required.” (AR002800.)

In late 2007, DOE reconfigured the lease tracts (mostly by combining certain lease tracts) so that there were a total of 31 lease tracts. (AR019646–53.) During 2008, DOE issued leases for those 31 tracts to six different companies: Cotter Corporation (10 lease tracts), Golden Eagle Uranium, LLC (8), Energy Fuels Resources (6), Gold Eagle Mining, Inc. (3), U.S. Uranium Corporation (2), and Zenith Minerals, LLC (2). (AR005341–AR032186.) ¹⁰

During 2009, DOE approved exploration plans on five different lease tracts, and also approved a mine re-entry plan on one of those lease tracts. (AR003052–110, AR003172–213, AR003263–314, AR003457–548, AR003578–635.) DOE also approved Reclamation in-lieu-of Royalties (“RILOR”) plans on 13 different lease tracts. (AR002832–43, AR002994–3020, AR003214–31, AR003344–69, AR003696–706, AR003738–62, AR003851–902, AR003932–60, AR004020–50, AR004109–30, AR004160–82, AR004212–28, AR004331–48.) ¹¹

B. Procedural Background

On July 31, 2008, Plaintiffs filed their Complaint in this action, raising six claims alleging NEPA violations by DOE in its decision to expand the ULMP. (ECF No. 1.) After some discovery, Plaintiffs filed a First Amended Complaint bringing 10 claims alleging violations of NEPA and ESA, and challenging DOE's decisions to expand the ULMP, to issue the 31 leases, and to approve the exploration and reclamation activities. (ECF No. 61.) ¹²

On May 3, 2011, Plaintiffs filed their Opening Brief, arguing that:

(A) DOE violated NEPA by:

(1) Issuing the EA and FONSI rather than preparing a more detailed Environmental Impact Statement (“EIS”) (this argument has several bases);

(2) Failing to review a reasonable range of alternatives in the EA;

(3) Failing to include in the NEPA process all federal and state agencies with jurisdiction;

(4) Issuing the leases without NEPA compliance; and

(5) Unlawfully relying on categorical exclusions in approving the exploration and reclamation activities; and

(B) DOE violated ESA:

(1) By failing to consult with the FWS; and

(2) Because activities performed under the ULMP may affect listed species. (ECF No. 78, at 18–39; see also ECF No. 61, at 40–48.) Plaintiffs request that the Court set aside the final agency actions at issue. ( Id. at 39–40.) DOE filed its Response Brief (ECF No. 82), and Plaintiffs filed their Reply Brief (ECF No. 88).

DOE has also filed a Motion to Strike Extra–Record Materials (ECF No. 91), to which Plaintiffs have filed a Response (ECF No 93).

During June and July 2011, DOE also filed with the Court three notices regarding recent developments with the ULMP. On June 22, 2011, DOE notified the Court of the publication in the Federal Register of its Notice of Intent to Prepare a Programmatic Environmental Impact Statement for the U.S. Department of Energy Uranium Leasing Program (“NOI”). (ECF No. 83.) See also 76 Fed. Reg. 36,097–36,100 (June 21, 2011). The NOI states,

DOE has determined that, in light of the site-specific information that DOE has gathered as a result of the site-specific agency actions proposed and approved pursuant to the July 2007[EA]/FONSI, it is now appropriate for DOE to prepare [an EIS] in order to analyze the reasonably foreseeable environmental impacts, including the site-specific impacts, of a range of alternatives for the management of the ULP for the remainder of the ten-year period that was covered by the July 2007[EA].

76 Fed. Reg. at 36,097. See also id. at 36,098, 36,099. ( See also ECF No. 82, at 6.) Then, on July 11, 2011, DOE notified the Court that it had recently sent a letter to the...