W. Slope Colo. Oil & Gas Ass'n v. Jewell

Decision Date16 August 2017
Docket NumberCivil Action No. 14-cv-02764-CMA
PartiesWEST SLOPE COLORADO OIL AND GAS ASSOCIATION, Plaintiff, v. SALLY JEWELL, in her official capacity as the Secretary of the U.S. Department of the Interior; UNITED STATES DEPARTMENT OF THE INTERIOR; DANIEL M. ASHE, in his official capacity as the Director of the U.S. Fish and Wildlife Service; UNITED STATES FISH AND WILDLIFE SERVICE; RUTH WELCH, in her official capacity as the State Director of the Bureau of Land Management Colorado State Office; BUREAU OF LAND MANAGEMENT COLORADO STATE OFFICE; KENT WALTER, in his official capacity as Field Manager of the Bureau of Land Management White River Field Office Defendants.
CourtU.S. District Court — District of Colorado

Judge Christine M. Arguello

ORDER AFFIRMING AGENCY DECISIONS

Plaintiff West Slope Colorado Oil and Gas Association ("Plaintiff") appeals the administrative actions taken by Defendants Sally Jewell, in her official capacity as the Secretary of the United States Department of the Interior; United States Department of the Interior ("DOI"); Daniel M. Ashe, in his official capacity as the Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service ("FWS"); Ruth Welch, in her official capacity as the State Director of the Bureau of Land Management Colorado State Office; Bureau of Land Management Colorado State Office "(BLM"); and Kent Walter, in his official capacity as Field Manager of the Bureau of Land Management White River Field Office (collectively "Defendants"). Plaintiff seeks the reversal of the FWS July 26, 2012 permit to Colorado State University ("CSU") for a research project, the FWS October 4, 2012 Biological Opinion (BiOp")1 and the Interior Board of Land Appeals ("IBLA") August 21, 2014 Order IBLA 2014-11 ("Order") that affirmed the BLM's September 23, 2013 Final Environmental Assessment/Decision Record ("Final EA/DR"). Plaintiff alleges that Defendants violated the Endangered Species Act ("ESA"), the National Environmental Policy Act ("NEPA"), the Federal Land Policy and Management Act ("FLPMA") and other administrative authorities. Plaintiff's appeal is before the Court pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. For the reasons described below, the Court affirms the challenged agency actions.

I. BACKGROUND

In 1990, FWS determined that the Dudley Bluffs Bladderpod (Lesquerella congesta) and the Dudley Bluffs Twinpod (Physaria obcordata) are threatened species of wild mustard plants ("the threatened plants") found only in the Piceance Basin in western Colorado. See 55 Fed. Reg. 4152-7 (Feb. 6, 1990). As required by 16 U.S.C. § 1533, FWS listed the threatened plants in its Endangered and Threatened Wildlife and Plants; 5-Year Review of Listed Species, 56 Fed Reg. 56882-01 (Nov. 6, 1991). The threatened plants therefore received ESA protection. The ESA prohibits the commercialtrade, removal, or malicious damage or destruction of endangered and threatened plants located on federal land. 16 U.S.C. § 1538(a)(2).

In February 2012, CSU began coordinating with BLM regarding its then proposed research project. (BLM-000128-9.)2 In June 2012, CSU applied to FWS for a recovery permit to collect and propagate seeds of the threatened plants with the eventual goal of establishing new populations of them in suitable habitats. (DOI-000202-323.) On July 26, 2012, FWS issued to CSU the Federal Fish and Wildlife Permit number TE76718A-0 (DOI-000724-730) for a restoration project3 of the threatened plants. The permit authorized CSU to "remove and reduce to possession seed [of the threatened plants] on Federal lands" and subsequently to "propagate seeds and reintroduce plants" subject to conditions yet to be determined. (DOI-000725-7.) The permit required CSU to obtain permissions and coordination with BLM, the landowner, and with FWS prior to collection and reintroductions. (DOI-000725.)

BLM was deemed to propose the "agency action" since it would determine whether or not to allow CSU's research project. Therefore as required by section 7 of the ESA, 16 U.S.C. § 1536(a), BLM consulted with FWS to ensure that the research project would not be likely to jeopardize the threatened plants or their habitat. In response thereto, on October 4, 2012, FWS issued its BiOp. (CSU-000484-5.)4 In its BiOp, FWS noted the terms of the proposed research project. The relevant ones herein include: (1) that "[t]he purpose of the proposed research project is to explore possibleapproaches for establishing new populations of [the threatened plants] in suitable habitats of the Piceance Basin in Northwestern Colorado in order to increase the plants' overall abundance in the region"; (2) that, "[p]rior to establishing new populations, CSU will consult with the BLM and [FWS] for approval of specific locations"; and (3) that "[t]he study areas will be located across all known element occurrences (EO) for [the threatened plants] in order to find plots far enough from current populations to avoid negatively influencing genetic flow." Id. FWS then concluded that "this research will be largely beneficial for both the bladderpod and the twinpod and the action therefor[e] may affect but is not likely to adversely affect bladderpod and twinpod." Id. at 485.

BLM may determine the environmental impact of a proposed agency action through an environmental assessment when the action would not significantly affect the environment, as the FWS had concluded in its BiOp. 43 C.F.R. 4501.4(b). It thereby determines if an environmental impact statement ("EIS") is required, and if not, it instead issues a "finding of no impact statement" ("FONSI"). 43 C.F.R. 4501.4(c) and (e).

Thus BLM proceeded with its environmental assessment ("EA"). On March 12, 2013, it posted a notice in the NEPA register to announce a March 20, 2013 meeting of stakeholders, those affected by the research project, to discuss the project. (BLM-0001321.) Plaintiff hosted this meeting at its regularly scheduled Rio Blanco County task force meeting. At the meeting, the BLM's Western Regional Field Office ("WRFO") proposed a collaborative effort among BLM, Rio Blanco County, FWS and industry to create a Conservation Plan to promote recovery of the threatened plants while accommodating resource extraction. (BLM-001497-8.) On July 18, 2013, the WRFOnotified the stakeholders, including Plaintiff, by letter (BLM-000075-86) that a Draft Environmental Assessment ("Draft EA") would be released on July 23, 2013, and that the stakeholders would have a 15 day period within which to provide comment on it.

On July 23, 2013, the WRFO issued the Draft EA and a draft FONSI. (BLM-001248-80; 0001278-80.) The Draft EA titled the project "Threatened plant species reseeding research" and described its intent and its parameters. Some of these included (1) that the project is "an attempt to expand current occupied habitat of two federally threatened plant species..." (BLM-001248); (2) that "[t]he ultimate goal of this project is to increase the likelihood that these species may be delisted" (BLM-001248); (3) that the determination to be made by BLM was "whether or not to allow the proposed threatened plant species reseeding research to proceed in the Piceance Basin, and if so, under what terms and conditions" (BLM-001249); (4) that "[t]he purpose of the proposed research project is to explore possible approaches for establishing new populations of these species in suitable areas in order to increase their overall abundance in the region" (BLM-001249-50); (5) that "[a]ll sites will be considered research populations and both the seeds and transplants will be protected under the [ESA] as threatened species" (BLM-001250); (6)"[i]f research populations are viable beyond 10 years they will be considered fully established and will not be treated differently than any other natural population" (BLM-001250); and (7) that "[t]here will be six, 5- x -5 meter study areas for each species to equal a total of 300 square meters utilized in the research project for the 12 separate study areas" (BLM-001251.) The Draft EA also included maps identifying the precise locations of the proposed researchplots and described the areas that could be impacted by the ESA protection accorded to the plots. (BLM-001272-76, 001258-9, 001266.)

On August 7, 2103, Plaintiff submitted its written comments on the Draft EA. At its September 11, 2013, Rio Blanco County task force meeting, Plaintiff hosted WRFO and CSU to discuss the research project and Plaintiff's comments on the Draft EA. (BLM-001282.) On September 23, 2013, BLM approved the Final EA/DR, BLM Colorado State Director affirmed the approval, and BLM issued its EA/DR (BLM-001281-1319, 001241-4), and FONSI. (BLM-001245-47.) BLM's Final EA/DR largely preserved the procedure proposed in the Draft EA.

On October 23, 2013, Plaintiff filed an administrative appeal of BLM's Final EA/DR with IBLA and also petitioned IBLA to stay the BLM action. On August 21, 2014, IBLA issued its Order affirming BLM's Final EA/DR and denied the petition for stay.5 (BLM-001621-35.) The Order constitutes the IBLA final agency action. See 43 C.F.R. § 4.403(a).

II. STANDARD OF REVIEW

This court has jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 704.

The APA instructs that the Court shall set aside a federal agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." 5 U.S.C. §§ 706(2)(A) & (D). "[I]n determining whether the agency acted in an 'arbitrary and capricious manner,' [the court] must ensure that the agency 'decision was based on a consideration of therelevant factors' and examine whether there has been a clear error of judgment." Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997). The scope of review is narrow and a court is not to substitute its judgment for that of the agency. Motor Vehicle Mfrs. Ass'n of U.S., ...

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