Sierra Club v. U.S.

• Decision Date: 22 November 2002
• Docket Number: No. CIV. 97-B-529(PAC).,CIV. 97-B-529(PAC).
• Parties: SIERRA CLUB and Center For Native Ecosystems, Plaintiffs, v. UNITED STATES DEPARTMENT OF ENERGY and Spencer Abraham; in his official capacity as Secretary of Energy, Defendants. and Mineral Reserves, Inc., Defendant-Intervenor.
• Court: U.S. District Court — District of Colorado

255 F.Supp.2d 1177

SIERRA CLUB and Center For Native Ecosystems, Plaintiffs, v. UNITED STATES DEPARTMENT OF ENERGY and Spencer Abraham; in his official capacity as Secretary of Energy, Defendants. and Mineral Reserves, Inc., Defendant-Intervenor.

No. CIV. 97-B-529(PAC).

United States District Court, D. Colorado.

November 22, 2002.

COPYRIGHT MATERIAL OMITTED

Colin Christopher Deihl, Faegre & Benson, Denver, CO, Neil Levine, Earthlaw University of Denver-Forbes House, Denver, CO, for Plaintiffs.

Derek G. Passarelli, John A. Herrick, U.S. Dept. of Energy, Golden, CO, Robert D. Clark, Attorney General's Office, Denver, CO, Stephen D. Taylor, U.S. Attorney's Office, Denver, CO, David Alan Bailey, Schwarz Semenoff McNab & Bailey, P.C., Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.

Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, Plaintiffs Sierra Club and Center for Native Ecosystems (collectively, Plaintiffs), seek declaratory and injunctive relief against Defendant Department of Energy (DOE) based on their claims that DOE violated: 1) the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA) by failing to prepare an environmental assessment (EA) or environmental impact statement (EIS) prior to its decision to grant a road easement; and 2) the Endangered Species Act, 16 U.S.C. § 1531 et seq. (ESA) by failing to consult with the Fish and Wildlife Service before granting the easement. After consideration of the petition, briefs, and counsel's arguments at the November 1, 2002 hearing, I grant the relief sought.

I. Procedural History

On March 17, 1997, Plaintiff Sierra Club filed suit alleging eight claims, including violations of NEPA, ESA, and the Clean Water Act against Defendant DOE and the United States Army Corps of Engineers.

On February 2, 2001, I dismissed Sierra Club's Second Amended Complaint concluding that the claims against DOE were not ripe for adjudication. See Sierra Club v. United States DOE, 150 F.Supp.2d 1099 (D.Colo.2001) (Sierra Club I). On appeal, the Tenth Circuit held the case ripe for adjudication and reversed and remanded for further proceedings as to Plaintiffs NEPA and ESA claims. See Sierra Club v. United States DOE, 287 F.3d 1256 (10th Cir.2002) (Sierra Club II).

After remand, Plaintiff Sierra Club filed a Third Amended Complaint in which the Center For Native Ecosystems joined as a plaintiff. On August 30, 2002, I granted Defendant Mineral Reserves, Inc. (MRI) an assignee of the road easement at issue, leave to intervene.

II. Facts

In 1951, the United States acquired the Rocky Flats facility, located immediately east of Colorado State Highway 93, between Golden and Boulder, Colorado. From 1952 to 1992, the Rocky Flats facility processed plutonium and produced nuclear warhead triggers. In 1975, the government acquired additional surface rights to increase the size of the buffer zone (Buffer Zone) around the inner plant facilities. After this expansion, the site totaled 6,500 acres.

In 1977, the DOE took over administration of Rocky Flats. In early 1992, plutonium processing ceased at Rocky Flats based, in part, on ground contamination occurring in the area immediately surrounding the plant. Many portions of the larger Buffer Zone, however, escaped contamination.

Until 1992, the owners of the Rocky Flats subsurface were precluded from accessing their mineral rights. The subsurface mineral rights owners leased their rights to Western Aggregates, Inc. (WAI), which operated an existing gravel pit and grading facility directly west of the Buffer Zone. Defendant MRI is the current holder of all property rights, permits and other interests previously applied for or received by WAI.

The Buffer Zone contains one of twenty remaining xeric tall grass prairies in the world and a large population of the Preble's meadow jumping mouse (the Mouse). On May 13, 1998, the United States Fish and Wildlife Service (FWS) listed the Mouse as a threatened species under the ESA. See 63 Fed.Reg. 26517. Two hundred acres of the Buffer Zone are used by the DOE as a National Wind Technology Center (NWTC).

In 1997, WAI applied for and received an expansion of its mining permit from the Colorado Department of Natural Resources. The proposed expansion would expand the existing gravel mine to approximately 425 acres located in the Buffer Zone, including a part of the land comprising the NWTC. Jefferson County, Colorado, conditionally approved WAI's rezoning application for the area.

Pursuant to the rezoning resolutions, MRI is required to meet mandatory requirements to protect the hydrological and ecological resources in the proposed area, including submission of hydrological and tall grass prairie studies and a mine operation plan to Jefferson County for approval. MRI must also post reclamation bonds, and obtain other permits such as an air quality amendment from the Colorado Department of Health, a Colorado mined land reclamation board permit amendment, and a Colorado Department of Transportation highway access permit before it may commence mining operations on all but 20 acres of the expanded acreage. Since this action was filed, the required state air quality permit has been issued.

In July 1995, the DOE issued a road easement (Easement) to WAI, giving rise to Sierra Club's claims underlying this appeal. The Easement allows WAI and its successor MRI to construct a road from Highway 128 across the NWTC to the proposed mining expansion and the existing mining operations, thus facilitating the off-site removal of the mined sand and gravel. The use and occupation of the road were made subject to such rules and regulations as may be prescribed by the Golden, Colorado, DOE field office manager. Pursuant to a memorandum of understanding (MOU) accompanying the Easement, WAI agreed not to conduct any mining operations on that portion of the property comprising the NWTC for a period of twenty years after receiving approval from Jefferson County to do so. The grant of easement contains a clause stating that:

[t]he construction, use, and/or operation and maintenance of said easement shall be performed without cost or expense to the Government under the general supervision and subject to the prior approval of the Manager of the Golden Field Office of the Department of Energy.

AR, Vol. I, § B, Tab 3.

Furthermore, the MOU contains the following clause:

DOE agrees that upon mutual agreement between WAI and DOE of appropriate terms and conditions, DOE shall grant to WAI an easement traversing the NWTC over which WAI may construct, at no cost to DOE, a roadway connecting WAI's existing facilities to Highway 128 on the north. The general location of this easement is more particularly described in Attachment D which is incorporated herein by this reference. AR, Vol. I, § B, Tab 2.

III.

A federal agency's compliance with NEPA and ESA is subject to review under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. (APA). Pursuant to the APA, 5 U.S.C. § 706, review of an agency action is treated in the district court as an appeal. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994). The appellate review "requires a plenary review of the record as it existed before the agency." Id. at 1576. I must review the agency's decision-making process and determine whether the agency examined all relevant data and articulated a satisfactory explanation for its action. Id at 1575 citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A court's review of an agency's decision is generally limited to a review of the administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Olenhouse, 42 F.3d at 1579-80. The "agency action must be examined by scrutinizing the administrative record at the time the agency made its decision." Asarco, Inc. v. United States EPA 616 F.2d 1153, 1159 (9th Cir.1980); Sportsmen's Wildlife Defense Fund v. Romer, 29 F.Supp.2d 1199, 1211 (D.Colo.1998). I do not re-weigh the evidence. Id.

Under the APA, I may overturn an agency action only if the action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) and (C). While the inquiry under the arbitrary and capricious standard must be "searching and careful," "the ultimate standard of review is a narrow one." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Tenth Circuit explained what constitutes arbitrary and capricious agency action: Generally, an agency decision will be considered arbitrary and capricious if the agency had relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir.1997).

Under this standard, the agency must take a "hard look" at the environmental consequences of the action. Robertson v. Methow Valley Citizens Council, 490 U.S 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The Tenth Circuit has consistently applied deference in NEPA cases. Comm. to Preserve Boomer Lake Park v. Dep't. of Transp., 4 F.3d 1543, 1555 (10th Cir.1993)(agency decision to issue FONSI and not prepare EIS "is reviewed under the deferential arbitrary and capricious standard of review"); Los Ranchos de Albuquerque v. Marsh, 956 F.2d 970, 972-73 (10th Cir.1992).

It is the plaintiffs burden to prove that these criteria are not met. Boomer Lake Park, 4 F.3d at 1555; Park County Resource Council, Inc. v. United...