Nat'l Parks Conservation Ass'n v. U.S. Forest Serv.

• Decision Date: 31 March 2016
• Docket Number: Civil No. 15-cv-01582 (APM)
• Citation: 177 F.Supp.3d 1
• Court: U.S. District Court — District of Columbia
• Parties: National Parks Conservation Association, Plaintiff, v. United States Forest Service, et al., Defendants, and Elkhorn Minerals LLC, Intervenor.

177 F.Supp.3d 1

National Parks Conservation Association, Plaintiff,

v.United States Forest Service, et al., Defendants,andElkhorn Minerals LLC, Intervenor.

Civil No. 15-cv-01582 (APM)

United States District Court, District of Columbia.

Signed March 31, 2016

Howard A. Learner, Jennifer Lynn Cassel, Jennifer Elyse Tarr, Chicago, IL, for Plaintiff.

Daniel W. Wolff, R. Timothy McCrum, Crowell & Moring, Washington, DC, for Intervenor.

Shawn Derek Shugert, Tyler L. Burgess, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta

, United States District Judge

I. INTRODUCTION

In December 2015, pursuant to permits issued by Defendant United States Forest Service (“Forest Service”) and an Operating Plan that the agency had approved, Intervenor Elkhorn Minerals LLC (“Elkhorn Minerals”) began mining for gravel on a five-acre parcel of land in Billings County, North Dakota. The five-acre parcel lies within a 24.6 acre tract of land on which, under the agreed upon Operating Plan, mining operations are expected to continue for the next two to three years. The surface rights of the 24.6 acre tract are owned by the Forest Service, which acquired those rights in 2007 as part of a 5,200 acre purchase of land surrounding the Elkhorn Ranch Unit of Theodore Roosevelt National Park. The 5,200 acre purchase was explicitly subject to pre-existing mineral rights, including those within the 24.6 acres now held by Elkhorn Minerals.

Though mining operations began only months ago, more than six years have passed since the Forest Service first received Elkhorn Minerals' plans to extract gravel from the land. Extensive negotiations followed, with the Forest Service mindful throughout of Elkhorn Minerals' valid subsurface rights, and Elkhorn Minerals equally mindful of the Forest Service's entitlement to limit surface use to that which is reasonable. As negotiations progressed, so too did the Forest Service's efforts to comply with the procedural duties imposed upon it by the National Environmental Policy Act. It this lawsuit, Plaintiff National Parks Conservation Association (“NPCA”) challenges the Forest Service's fulfillment of those duties.

NPCA brought this action under the Administrative Procedure Act. It alleges that the Forest Service violated the National Environmental Policy Act by issuing a “Decision Notice and Finding of No Significant Impact,” rather than preparing an “Environmental Impact Statement,” for Elkhorn Minerals' mining operations. NPCA alleges a host of deficiencies in the Forest Service's actions. It argues that the Forest Service (1) adopted an improperly narrow “purpose and need” statement to evaluate the proposed project; (2) inadequately considered alternatives to approving the project; and (3) failed to take a “hard look” at the project's environmental impacts. NPCA asserts that these deficiencies, along with the precedential and controversial nature of the Forest Service's actions, required the production of an Environmental Impact Statement. NPCA further alleges that the Forest Service's failure to amend the Land and Resource Management Plan for the Dakota Prairie Grasslands—the Forest Service region in which the mining is occurring—violated the National Forest Management Act.

Following the court's denial of NPCA's Motion for a Temporary Restraining Order and its subsequent denial of NPCA's Motion for a Preliminary Injunction, the parties—including Intervenor Elkhorn Minerals—cross-moved for summary judgment. Those Motions for Summary Judgment are now before this court. Upon consideration of the parties' filings and the Administrative Record, the court finds that the Forest Service has complied with the National Environmental Policy Act and the National Forest Management Act. It therefore grants the Forest Service's and Elkhorn Minerals' Motions for Summary Judgment in their entirety, and denies NPCA's Motion for Summary Judgment in its entirety.

II. BACKGROUND

A. Regulatory Framework

1. The National Environmental Policy Act

The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. ,

“establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and his environment.’ ” U.S.

Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321 ). It aims to effectuate that policy, “not [by] mandat[ing] particular results, but simply [by] prescrib[ing] the necessary process.” Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; see also

Marsh v. Oregon Natural Res. Council , 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (“NEPA does not work by mandating that agencies achieve particular substantive environmental results.”). As the Court of Appeals has noted, it “is an ‘essentially procedural’ statute intended to ensure ‘fully informed and well-considered’ decisionmaking, but not necessarily the best decision.” New York v. Nuclear Regulatory Comm'n , 681 F.3d 471, 476 (D.C.Cir.2012) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ). NEPA ensures that federal agencies engage in such decisionmaking through certain “ ‘action-forcing procedures,’ ” Andrus v. Sierra Club , 442 U.S. 347, 350, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979) (quoting S. Rep. No. 91-296, at 19 (1969)), which require them “to consider and report on the environmental effect of their proposed actions,” WildEarth Guardians v. Jewell , 738 F.3d 298, 302 (D.C.Cir.2013). The Council on Environmental Quality, a body created by NEPA, promulgates binding regulations that “tell federal agencies what they must do to comply with [NEPA's] procedures and achieve the goals of the Act.” 40 C.F.R. § 1500.1.

Specifically, NEPA and its implementing regulations require federal agencies to issue an exhaustive, in-depth analysis document referred to as an Environmental Impact Statement (“EIS”) in connection with “proposals for ... major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C)

. An EIS must include “detailed statement [s]” about, among other things, “the environmental impact of the proposed action”; “any adverse environmental effects which cannot be avoided should the proposal be implemented”; and “alternatives to the proposed action.” Id. § 4332(C)(i)-(iii)

. “The statutory requirement that a federal agency contemplating a major action prepare such an [EIS] serves NEPA's ‘action-forcing’ purpose” by guaranteeing (1) “that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts” and (2) “that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson , 490 U.S. at 349, 109 S.Ct. 1835 ; see also

Baltimore Gas & Elec. Co. v. Natural Res. Def. Council , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (discussing NEPA's “twin aims”).

Because agencies need only prepare an EIS for actions “significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C)

, and “as the ecological significance of administrative actions are often less than self-evident,” Humane Soc'y of the U.S. v. U.S. Dep't of Commerce , 432 F.Supp.2d 4, 13–14 (D.D.C.2006), NEPA permits agencies as a first step to prepare an Environmental Assessment (“EA”)—a comprehensive but abbreviated analysis of a proposed project's environmental impacts—to determine whether an EIS is necessary, see 40 C.F.R. § 1501.3 -4. If, based on a completed EA, an agency determines that a proposal will not significantly affect the quality of the environment, it may issue a Decision Notice and Finding of No Significant Impact (“DN/FONSI”) instead of proceeding with an EIS. Id. §§ 1501.4(e)(1), 1508.13. A DN/FONSI includes the EA or a summary of it and “briefly present [s] the reasons why an action ... will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared.” Id. § 1508.13. It is the adequacy of the EA for Elkhorn Minerals' mining operations and the Forest Service's issuance of a DN/FONSI in lieu of an EIS that Plaintiff challenges here.

2. The National Forest Management Act

The National Forest Management Act of 1976 (the “NFMA”), 16 U.S.C. § 1600 et seq. ,

requires the Secretary of Agriculture, through the Forest Service, to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” Id. § 1604(a). “In developing the plans, the Service must take both environmental and commercial goals into account.” Ohio Forestry Ass'n v. Sierra Club , 523 U.S. 726, 729, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). More specifically, the Forest Service must consider its statutory mandates to develop and administer the national forests “to secure favorable conditions of water flows and to furnish the country with a continuous supply of timber”; “for outdoor recreation, range, timber, watershed, and wildlife and fish purposes”; and “for multiple use and sustained yield of the several products and services obtained therefrom.” Montanans For Multiple Use v. Barbouletos , 568 F.3d 225, 226–27 (D.C.Cir.2009) (citing 16 U.S.C. §§ 475, 528, 529 ).

The NFMA imposes a second requirement on the Forest Service. The NFMA mandates that “[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands ... be consistent with the land [and resource] management plans.” 16 U.S.C § 1604(i)

. In practice, this provision requires the Forest Service to “analyze[ ] and authorize[ ] site-specific projects consistent with the governing plan” for the region in which the project is located.

Montanans For Multiple Use , 568 F.3d at 227

(citations...