Swomley v. Schroyer
| Decision Date | 03 September 2020 |
| Docket Number | Civil Action No. 19-cv-01055-TMT |
| Citation | 484 F.Supp.3d 970 |
| Parties | John SWOMLEY, Todd Barker, David Goldstein, Elizabeth Swomley, Olivia Swomley, James Swomley, Sarah Swomley, Robert Cosinuke, Willa Cosinuke, Jennifer Krier, Abigayle Cosinuke, August Cosinuke, Kathryn Vagneur, Bruce Barker, Gerry Barker, Tom Stewart, Barbara Stewart, Thomas H. Stewart, Katherine Kenney, Eric Voth, Michelle Voth, Petitioners, v. Karen SCHROYER, in her official capacity as District Ranger, Aspen-Sopris Ranger District, White River National Forest, United States Forest Service, and United States Forest Service, a federal agency of the United States Department of Agriculture, Federal Respondents. |
| Court | U.S. District Court — District of Colorado |
John Gregory Swomley, Swomley & Tennen LLP, Boston, MA, for Petitioners.
Hayley A. Carpenter, U.S. Department of Justice, Washington, DC, for Federal Respondents.
This matter comes before this court on Petitioners’ "Petition for Review of Agency Action." (Doc. 1.) In the Petition, 21 residents of the Upper Fryingpan Valley near Leadville, Colorado (collectively Petitioners) challenge the U.S. Forest Service's approval of the Upper Fryingpan Project—a timber project in a section of the White River National Forest.
Petitioners bring three claims under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). Petitioners allege the Forest Service1 violated these statutes by (1) failing to consider the Project's impact on climate change; (2) failing to adequately consider scientific evidence regarding the Project's impact on fungi; and (3) failing to prepare an environmental impact statement (EIS) for the Project. After careful review of the parties’ briefing and the administrative record,2 this court holds Petitioners have failed to establish any violations under NEPA or the APA. Thus, for the reasons stated below, this court denies the Petition and grants judgment in favor of the Forest Service on all counts.
This matter arises from the Forest Service's approval of the Upper Fryingpan Project. The Project authorizes logging on 1,631 acres of land in the White River National Forest.3 Specifically, the Project is located in the Upper Fryingpan Valley and covers numerous unconnected segments of forest roughly in between Leadville, Colorado and the Reudi Reservoir. (See Doc. 26 at 3.) Petitioners regularly use the valley, including the Project area, to fish, hike, swim, mountain bike, hunt mushrooms, observe wildlife, and "enjoy nature."4 (Doc. 22 at 3, 7.)
The forest in the Project area is composed of lodgepole pine, aspen, and mixed conifer species. Of the 1,631 acres, the Forest Service plans to treat 1,061 acres with a "clearcut with leave tree" method. This approach harvests all lodgepole pine over five inches in diameter, but leaves aspen and mixed conifer species on the landscape. Another 198 acres will be treated through a "coppice" method, which involves harvesting all merchantable trees (typically those over five inches in diameter) and felling or burning all nonmerchantable trees. The remaining 369.6 acres5 will be treated through a "group selection" method, which "create[s] small openings, a quarter acre to an acre in size." AR5386. These openings would not collectively exceed 25% to 30% of the acreage treated with this method.
Generally, the harvested trees will be removed for use as forest products and biomass fuel. The waste resulting from the logging—known as "slash"—will be piled and burned; lopped and scattered; or removed for biomass energy generation.
The Forest Service identifies three purposes for the Project: (1) providing commercial forest products and biomass to local industries; (2) increasing the "tree age/size class diversity at the stand and landscape scales, thereby increasing forest resistance and resilience to disturbances, such as future bark beetle outbreaks, fires, and other climate-related mortality events"; and (3) providing "snowshoe hare habitat in both the stand initiation structural stage and in mature, multi-story conifer vegetation to benefit the Canada lynx, a federally threatened species." AR5375–76.
Approval for the Project began on October 6, 2016, when the Forest Service first initiated a scoping process. Two alternatives were considered: (1) the "no action" alternative, and (2) the "preferred alternative" of moving forward with the Project. AR3384. The Forest Service received numerous comments on its proposal and, in response, made slight adjustments to the Project's size and design. In August 2017, the Forest Service prepared a 172-page environmental assessment (EA), finding that the Project would have no significant impact on the environment. See AR5369–540. In December 2017, the Forest Service issued a Draft Decision Notice indicating its intent to move forward with the Project as then-designed. Petitioners and others filed objections. As a result of the objection process, the Forest Service again made slight adjustments to the Project's size and design. Finally, on April 30, 2018, the Forest Service issued its Final Decision Notice, authorizing implementation of the Project.
Petitioners initiated this suit on April 10, 2019. The Petition alleges three counts of NEPA and APA violations. In Count One, Petitioners contend the Forest Service failed to disclose and analyze the Project's indirect and cumulative impacts on climate change in violation of NEPA. In Count Two, Petitioners allege that the Forest Service ran afoul of NEPA by failing to adequately consider relevant science concerning the Project's potential impact on mycelium.6 Count Three asserts another NEPA violation due to the Forest Service's failure to prepare an environmental impact statement (EIS) for the Project.
For each count, Petitioners allege the Forest Service's conduct was arbitrary and capricious under the APA. Accordingly, the Petition seeks a declaration of the Forest Service's alleged violations, injunctive relief precluding the Project from moving forward until those violations are cured, and costs and fees.
Petitioners bring their claims under NEPA, the basic national charter for protecting the environment. NEPA places "upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action [and] ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc. , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). NEPA does not "mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
When a proposed major federal action may significantly affect the quality of the environment, a federal agency must prepare a "detailed statement" known as an EIS. See 42 U.S.C. § 4332(2)(C). Where it is unclear whether a proposed project may significantly affect the quality of the environment, a federal agency may prepare an EA to "briefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or [issue] a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1). When an EA reveals that a proposed action will have significant potential effects, the agency must prepare an EIS. 42 U.S.C. § 4332. If the agency concludes the action "is unlikely to have a significant impact, it may issue a finding of no significant impact and proceed." Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs , 702 F.3d 1156, 1166 (10th Cir. 2012).
Judicial review of agency action under NEPA is governed by the APA. The reviewing court "shall ... hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Review under this standard is deferential to the agency—"[a] presumption of validity attaches to the agency action and the burden of proof rests with the parties who challenge such action." Hillsdale , 702 F.3d at 1165. The court's role is not to "substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Instead, the court only looks to insure that the agency has "taken a ‘hard look’ at environmental consequences." Id. (quoting Nat. Res. Def. Council v. Morton , 458 F.2d 827, 838 (D.C. Cir. 1972) ).
To survive arbitrary and capricious review, an agency must "examine the relevant data and articulate a rational connection between the facts found and the decision made." New Mexico ex rel. Richardson v. Bureau of Land Mgmt. , 565 F.3d 683, 713 (10th Cir. 2009). Agency action will not pass muster where the agency "relied on factors which Congress has 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." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
But courts will only set aside an agency's decision for "substantial procedural or substantive reasons." Silverton Snowmobile Club v. U.S. Forest Serv. , 433 F.3d 772, 780 (10th Cir. 2006). Deficiencies that are "mere ‘flyspecks’ and do not defeat NEPA's goals of informed decisionmaking and informed public comment will not lead to reversal." Hillsdale , 702 F.3d at 1165.
Petitioners attack the Forest Service's failure to consider the Project's effects on climate change, its conclusions with respect to the Project's effects on mycelium,...
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