Guardians v. United States Forest Serv., Civil Action No. 08-cv-02167-JLK.

• Decision Date: 01 April 2010
• Docket Number: Civil Action No. 08-cv-02167-JLK.
• Citation: 713 F.Supp.2d 1243
• Parties: WILDEARTH GUARDIANS, a not-for-profit corporation, Petitioner,v.UNITED STATES FOREST SERVICE, a federal agency within the U.S. Department of Agriculture, Rick Cables, in his official capacity as Regional Forester of the U.S. Forest Service's Rocky Mountain Region, Charles S. Richmond, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, Gunnison National Forest, United States Department of the Interior, a federal agency, and Wilma Lewis, in her official capacity as Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior, Respondents,andMountain Coal Company, Intervener-Respondent.
• Court: U.S. District Court — District of Colorado

713 F.Supp.2d 1243

WILDEARTH GUARDIANS, a not-for-profit corporation, Petitioner,v. UNITED STATES FOREST SERVICE, a federal agency within the U.S. Department of Agriculture, Rick Cables, in his official capacity as Regional Forester of the U.S. Forest Service's Rocky Mountain Region, Charles S. Richmond, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, Gunnison National Forest, United States Department of the Interior, a federal agency, and Wilma Lewis, in her official capacity as Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior, Respondents,andMountain Coal Company, Intervener-Respondent.

Civil Action No. 08-cv-02167-JLK.

United States District Court D. Colorado.

April 1, 2010.

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Edward Breckenridge Zukoski, Earthjustice Legal Defense Fund, Denver, C.O., for Petitioner.

Gregory Daniel Page, U.S. Department of Justice, Washington, D.C., for Respondents.

Stephen D. Bell, Dorsey & Whitney, LLP, Denver, C.O., for Intervener-Respondent.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

The West Elk Coal Mine is a subterranean coal mine located near Paonia, Colorado.

Operated since 1981 by the Mountain Coal Company (“MCC”), a subsidiary of the St. Louis, Missouri-based Arch Coal Company, the mine largely underlies lands managed by the Grand Mesa, Uncompahgre, Gunnison National Forest. As a result of MCC's mining activities, significant quantities of methane, a highly combustible gas which poses a significant safety risk, is released into the underground mine.¹ Of great significance to WildEarth Guardians, methane is also a potent greenhouse gas that traps heat in the atmosphere twenty-one times more effectively than carbon dioxide.

In order to alleviate the safety hazard posed by the accumulation of methane, MCC has in the past vented the methane produced in its mining operations directly into the atmosphere. Such venting has been accomplished by building roads on top of the area to be mined, bulldozing a well pad, and drilling into the coal seam from Forest Service land. Since approximately 2002, MCC's mining (and venting) activities have been concentrated in (and above) a geologic formation known as the “B seam.” MCC has, however, sought state and federal approval for a plan to expand its mining operations into a different formation-the “E seam.” As part of the permitting process, MCC proposed to address methane in the E seam as it had in the B seam-venting methane directly into the atmosphere.

Venting of the E seam would require the construction of twenty-three miles of new roads, 146 well pads, and 168 methane drainage wells. As a result, the expansion into the E seam required modification of the existing mine plan and implicated a variety of statutory regimes: NEPA, the Minerals Leasing Act, and the Surface Mining Control and Reclamation Act. Accordingly, the expansion required the consent of the Forest Service, the recommendation of both the Colorado Division of Reclamation Mining and Safety (“DRMS”) and the Office of Surface Mining (“OSM”), and the approval of the Secretary of the Interior. MCC sought and received the necessary consent (the Forest Service notified OSM and DRMS of its consent on June 6, 2008) ²; recommendations (DRMS issued a proposed decision on Phase I on June 9, 2008, and on Phase II on Nov. 14, 2008, and OSM recommended approval of Phase I on July 23, 2008 and Phase II on December 10, 2008); and approval (DOI Assistant Secretary Stephen Allred approved the mining plan modification for the first phase of the expansion on July 31, 2008 and for the second phase of the expansion on January 15, 2009) for these modifications.

As a condition of his approval, however, Assistant Secretary Allred included a provision requiring MCC to “capture all coalbed gas that would otherwise be vented ... if such capture is economically feasible and does not jeopardize the safety or health of the miners. The capture operations must comply with the terms of the amended [coal] leases....” Accordingly, MCC negotiated amendments to its existing coal leases reflecting this requirement, and on January 14, 2009, the Bureau of Land Management amended MCC's leases for the coal to be mined in the E seam expansion.

WildEarth Guardians challenges the four agency decisions which allowed MCC to proceed with its expansion into the E seam: the Forest Service's consent, the Assistant Secretary's approval of Phase I and Phase II of the expansion, and the BLM's amendment of the existing leases.³ WildEarth Guardians alleges that the actions of the Forest Service and the Assistant Secretary are based on an inadequate EIS which failed to analyze a range of reasonable alternatives to methane venting, failed to analyze measures to mitigate impacts of methane venting, and failed to analyze the impacts of methane venting. Furthermore, they allege that BLM completely failed to analyze the environmental impacts of the coal lease amendments.

As these decisions are based on two distinct decision making processes (the decisions relating to the mine plans and the decision to amend the coal leases), the Respondents prepared two independent Administrative Records-the Mine Plan Modification Administrative Record and the Lease Amendment Administrative Record. In their Motion to Compel Completion of the Administrative Records (Doc. 70), WildEarth Guardians challenges the sufficiency of each of these Administrative Records. In its motion, WildEarth Guardians argues that (1) Respondents have failed to provide the full records upon which they directly or indirectly relied in making the decisions which are the subject of this challenge and (2) Respondents have improperly asserted the attorney-client privilege in withholding certain materials. WildEarth Guardians urges that the Respondents should be compelled to include these materials in the appropriate Administrative Records in order to allow meaningful judicial review of the challenged agency actions. For the reasons stated below, this motion is GRANTED in part and DENIED in part.

LEGAL STANDARDS

WildEarth Guardians challenges the Respondents' actions under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“ NEPA ”). As this statute fails to define or specify the standard of review to be used in examining the Respondents' actions, the Administrative Procedures Act (“APA”), 5 U.S.C. § 500 et seq., provides the framework for this appeal. Accordingly, I must apply the standards articulated in the APA in considering the merits of WildEarth Guardians' Motion to Compel Completion of the Administrative Record.

Judicial Review of Informal Rulemaking under the APA

Under the APA, I review Respondents' informal rulemaking to determine if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). As the Supreme Court held in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), “the generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry.” Id. at 415, 91 S.Ct. 814. At the same time, the Supreme Court acknowledged “the Secretary's decision is entitled to a presumption of regularity.” Id. The Court emphasized, however, that the “presumption is not to shield [the Secretary's] action from a thorough probing, in-depth review.” Id. The tension inherent in these mandates is revealed by the Court's own declaration that though “this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. at 416, 91 S.Ct. 814.

In conducting my review of Respondents' actions, I must balance these mandates. In order to afford appropriate deference, I review the administrative agency's decision as an appellate body. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994). As a result, I apply the Federal Rules of Appellate Procedure and, generally, limit my review to the evidence relied upon by Respondents in reaching the challenged decision. Id. at 1580. In order to ensure a “substantial inquiry,” however, I also apply a variety of rules and exceptions consistent with my responsibility to ensure meaningful judicial review. Most relevant to the instant controversy, I apply this general framework to the process of determining the sufficiency of the Administrative Record submitted by Respondents.

Judicial Review of the Sufficiency of the Administrative Record

The APA directs that “the court shall review the whole record or those parts of it cited by a party....” 5 U.S.C. § 706. The definition of the “whole record” is not entirely clear, but in Overton Park the Supreme Court directed lower courts to confine their review of agency decisions to “the full administrative record that was before the Secretary at the time he made his decision.” 401 U.S. at 420, 91 S.Ct. 814. The Court clarified this mandate in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), stating that “[t]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Id. at 142, 93 S.Ct. 1241; see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (“The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court”).

Consequently, in accordance with my role in reviewing agency action under § 706, I begin my review of the sufficiency of the submitted Administrative Record by applying a “presumption of regularity” to the record as it is designated by the agency. In order to ensure a “probing inquiry” and a ...