Sierra Club v. U.S. Dept. of Energy, Civil Action No. 97-B-529.

• Decision Date: 13 August 1998
• Docket Number: Civil Action No. 97-B-529.
• Citation: 26 F.Supp.2d 1268
• Parties: SIERRA CLUB, a non-profit corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, and Federico Pena, in his official capacity as Secretary of Energy, Defendants.
• Court: U.S. District Court — District of Colorado

Page 1268

26 F.Supp.2d 1268

SIERRA CLUB, a non-profit corporation, Plaintiff, v. UNITED STATES DEPARTMENT OF ENERGY, and Federico Pena, in his official capacity as Secretary of Energy, Defendants.

Civil Action No. 97-B-529.

United States District Court, D. Colorado.

August 13, 1998.

Colin Christopher Deihl, Faegre & Benson, Denver, CO, Neil Levine, Earthlaw, Denver, CO, for Plaintiff.

Robert D. Clark, United States Attorney's Office, Civil Division, Denver, CO, for Defendants.

AMENDED ORDER

COAN, United States Magistrate Judge.

This matter is before the court on the United States' Renewed Motion for Protective Order [filed May 19, 1998] and Plaintiff's Motion to Compel Discovery Responses [filed June 5, 1998]. The motions are fully briefed. The court heard oral argument from the parties on August 4, 1998.

Plaintiff seeks to compel defendants to answer Plaintiff's First Set of Interrogatories and Requests for Production of Documents propounded by plaintiff on or about April 10, 1998. Defendants resist discovery and move for a protective order on the ground that this is an Administrative Procedure Act ("APA") judicial review case, and, therefore, the court's review is limited to the administrative record.

I. Background

Plaintiff's second amended complaint alleges that the Department of Energy ("DOE") and the Army Corps of Engineers ("Corps") are violating several federal statutes by not regulating anticipated mining activities on DOE's property at Rocky Flats. Plaintiff contends that a proposed sand and gravel strip mine on the site will destroy prime wetland and riparian habitat. The property at issue is a large parcel of open space within the Rocky Flats Buffer Zone and adjacent to the DOE's former nuclear weapons plant. The United States owns the surface estate of the property, but non parties own the subsurface severed mineral estate. The mineral rights are leased by a private mining company ("WAI") from the owners of the severed mineral estate. The mining company has been mining the land adjacent to the buffer zone for several years. The mining company has applied for, and obtained, permits from Jefferson County and the Colorado Mined Land Reclamation Board to allow the mining company to expand its gravel mining operations into the adjacent buffer zone, subject to various conditions imposed by the County and State. At this time, the mining company has not fulfilled all conditions necessary to expand its mining operations into the buffer zone.

According to plaintiff, one of the largest remaining populations of the Preble's Meadow Jumping Mouse ("the Mouse") occupies the wetland habitat in the Rocky Flats buffer zone, including the site of the proposed mining expansion. On May 12, 1998, the Mouse was listed as a threatened species under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq.

Plaintiff alleges that DOE has not taken steps to minimize the pending destruction of the wetlands and has not acted to preserve or enhance the wetlands, as required by federal law. Instead, plaintiff contends that DOE has actively assisted the mining company's efforts to expand its mining operation.

Plaintiff's second amended complaint for declaratory and injunctive relief contains eight claims for relief. In two claims, plaintiff contends that DOE has unlawfully withheld compliance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. at § 4332, by failing to prepare an Environmental Impact Statement ("EIS") concerning the impact on the environment of the mining company's expansion proposals, the impact of the categorical exclusions DOE granted to the mining company for a road easement and road relocation license, and the impact of a now-expired license DOE issued to allow the mining company to install an air quality monitoring station on one of DOE's existing antennas.

Four claims are brought against the DOE under the ESA, 16 U.S.C. at § 1536(a)(1), § 1536(a)(2), and § 1538(a)(1), for failure to provide for the conservation of the Mouse, failure to consult with the United States Fish and Wildlife Service ("FWS") concerning the impact of the road easement and license upon the Mouse, and failure to comply with the ESA's "no jeopardy" mandate and "take" prohibition by "assisting the mining company" to obtain state and local authorization for mining expansion, and, by granting the road easement and relocation license to facilitate mining expansion.

The seventh claim alleges that DOE violated Executive Order No. 11990¹ by failing to comply with conservation mandates, by assisting the mining company in its application for state and local mining expansion permits and by providing the mining company a road relocation license and road easement. The eighth claim avers that the Corps failed to assert jurisdiction over the wetlands in the Buffer Zone and over the mining company's proposed expansion under § 404 of the Clean Water Act ("CWA"), 33 U.S.C. at § 1344.

All of plaintiff's claims seek review under the APA's judicial review provisions, 5 U.S.C. § 706.² Six of plaintiff's seven claims allege, under § 706(1), that DOE unlawfully took no action to comply with statutory mandates to protect the Mouse and its wetland habitat, but instead performed several acts to assist the proposed mining expansion which actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" and are "without observance of procedure required by law." § 706(2)(A) and (D).³ Plaintiff's third claim for relief, under § 1536(a)(1) of ESA, is brought solely under § 706(1).

II. Legal Analysis

Judicial review of agency action under § 706 of the APA is generally limited to a review of the administrative record. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir.1994); Franklin Sav. Ass'n v. Director, Office of Thrift Supervision, 934 F.2d 1127 (10th Cir.1991). A reviewing court may look outside the administrative record for the following limited purposes: (1) when the record fails to disclose the factors considered by the agency, the court may require additional findings or testimony from agency officials to determine if the action was justified; (2) when necessary for background information or for determining whether the agency considered all relevant factors including evidence contrary to the agency's position; or (3) when necessary to explain technical terms or complex subject matter involved in the action. Franklin Sav. Ass'n, 934 F.2d at 1137-38 (internal citations omitted); Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993) ("When a showing is made that the record may not be complete, limited discovery is appropriate to resolve that question."); see, also, Colorado Environmental Coalition v. Lujan, 803 F.Supp. 364, 370 (D.Colo. 1992)(NEPA case).

Defendants represent that they have generated and produced to plaintiff an administrative record which includes the following: DOE's communications with Jefferson County and the State concerning the mining company's proposed mining expansion activities; the NEPA documentation DOE generated with regard to the road easement, road relocation license and air monitoring device installation license granted to the mining company; documents reflecting the need for DOE to "conference" with FWS on the Mouse, when the Mouse was proposed to be listed as an endangered species; supplements to the record to reflect DOE's recent "consultations" with FWS following the Mouse's listing as an endangered species; and documents reflecting the DOE's and Corps' respective analyses of their wetlands responsibilities under Executive Order 11990 and the CWA. Defendants argue that the administrative record is sufficient for the court to determine whether the agencies failed to comply with NEPA, ESA, Executive Order No. 11990, and the CWA.

Plaintiff contends that the court's determination of this action is not limited to the administrative record because plaintiff seeks to "compel agency action unlawfully withheld" under 5 U.S.C. § 706(1). Plaintiff argues that because it is challenging the defendants' failure to take action, there is no record to review, and therefore no limitation on discovery.

Plaintiff concedes that one of its NEPA claims is subject to review upon the administrative record, but argues that it is entitled to limited discovery on that claim because it cannot determine from the administrative record whether defendant DOE considered all relevant factors in making the decision to issue the categorical exclusion for roads within the buffer zone, specifically, whether DOE considered the connection between the roads and mine expansion.

The court finds that plaintiff's position that "this is not a record review case" is without merit. The judicial review provisions of the APA do not distinguish between a claim that an agency unlawfully failed to act and a claim based on action taken. In both cases, the court's review of the defendant agencies' actions is generally confined to the administrative...