United States District Court, D. Colorado
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For Rags Over the Arkansas River Inc, Plaintiff: Michael Ray Harris, LEAD ATTORNEY, University of Denver-Sturm College of Law, Denver, CO.
For The Bureau of Land Management, an agency of the United States, Keith E. Berger, in his official capacity as Field Manager for the Royal Gorge Field Office of the Bureau of Land Management, Helen Hankins, in her official capacity as Colorado State Director of the Bureau of Land Managment, Defendants: Ty Bair, LEAD ATTORNEY, U.S. Department of Justice-DC-ENRD-#663, Washington, DC; Kristofor R. Swanson, U.S. Department of Justice-DC-ENRD-7611, Washington, DC.
For Department of the Interior, The an agency of the United States, Thomas Heinlein, in his official capacity as District Manager for the Front Range District of the Bureau of Land Management, Sally Jewell, in her official capacity as Secretary of the Department of the Interior, Defendants: Kristofor R. Swanson, U.S. Department of Justice-DC-ENRD-7611, Washington, DC.
For The Over The River Corporation, Intervenor Defendant: Lori Jean Potter, LEAD ATTORNEY, Kaplan Kirsch & Rockwell, LLP-Denver, Denver, CO.
ORDER AFFIRMING AGENCY DECISION
William J. Martínez, United States District Judge.
Plaintiff Rags Over the Arkansas River, Inc. (" Petitioner" or " ROAR" ) brings this action against the Bureau of Land Management (" BLM" ), the Department of the Interior (" DOI" ) (together " Agencies" ), Keith Berger, Thomas Heinlein, and Helen Hankins in their official capacities as officials at the BLM, and Sally Jewell, in her official capacity as Secretary of the DOI (collectively " Respondents" ). This matter is before the Court pursuant to the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706, on Petitioner's appeal of the Agency's approval of the temporary art installation proposed to be constructed on federal land by Intervenor Over the River Corporation (" OTR" ). ( Id.) For the reasons set forth below, the Agency's decision is affirmed.
I. LEGAL STANDARD
Petitioner challenges Respondents' actions under both the National Environmental Policy Act (" NEPA" ) and the Federal Land Policy and Management Act (" FLPMA" ). However, as neither NEPA nor FLPMA creates a private right of action, see Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998), Petitioners must bring their claims pursuant to the judicial review procedures of the APA.
The APA instructs that federal agency action must be set aside if it is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or " without observation of procedure required by law." 5 U.S.C. § § 706(2)(A) &
(D). " In determining whether the agency acted in an arbitrary and capricious manner, we must ensure that the agency decision was based on a consideration of the relevant factors and examine whether there has been a clear error of judgment." Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999). However, a court may not substitute its judgment for that of the agency nor set aside the decision merely because it disagrees with the result. Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). Rather, the court may only find a decision arbitrary and capricious
if the agency . . . 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). Though a court must engage in a " substantial inquiry," Lamb v. Thompson, 265 F.3d 1038, 1046 (10th Cir. 2001), that is " searching and careful," Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), " the ultimate standard of review is a narrow one," id.
Review of an agency's decision is usually deferential. See Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). The deference given " is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise." Utah Envtl. Congress v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). If the agency's exercise of discretion is truly informed, then the court defers to it. Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002). However, if the record shows that the agency prejudged the issues, then deference to the agency's decision is diminished. See Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002).
II. FACTUAL BACKGROUND
The Arkansas Headwaters Recreation Area (" AHRA" ) is located in Chaffee, Lake, Pueblo, and Freemont Counties in south-central Colorado. The AHRA is comprised of the surface of the Arkansas River, lands owned by the State of Colorado, and lands owned by the United States which are administered by BLM. (Record (" R." ) (ECF No. 32) 6752 at 69656, 69688-94.) The AHRA is managed jointly by federal and state agencies--including BLM, the United States Forest Service, and Colorado Parks and Wildlife--who attempt to balance the popularity of the Arkansas River with protection of wildlife and other resources in the area. (R. 6789 at 76977-78.) To this end, the agencies developed the Arkansas River Recreation Management Plan (" ARRMP" ) in 1989. (R. 6752.) In pertinent part, the ARRMP requires that only leases, permits, and easements consistent with the Royal Gorge Resource Management Plan (" Royal Gorge RMP" ) will be granted. (R. 6752 at 69764-66.)
The Royal Gorge RMP was adopted in 1996 and governs BLM resource management in the State of Colorado east of the Continental Divide. (R. 6738 at 68336.) The land managed under this RMP is divided into ten sub-regions, including the Arkansas River Subregion (Eco-Subregion #1), which includes 125,000 acres along the Arkansas River corridor between Leadville and Pueblo, Colorado. (R. 6744 at 68894.) The Arkansas River Subregion
contains the Arkansas Canyonlands Area of Critical Environmental Concern (" ACEC" ), which extends from Texas Creek to Cottonwood Creek and is the eastern portion of Bighorn Sheep Canyon along the Arkansas River. (R. 6747 at 69094.) Bighorn Sheep Canyon is also designated a Class II in the BLM's Visual Resource Management system, which is designed to protect natural scenic values. (R. 6742 at 68767.)
In 1996, artists Christo and Jean-Claude approached BLM proposing to construct a temporary art installation (the " Project" ) over the Arkansas River. (R. 6789 at 76636.) After some public input and testing, the proposal was put on hold until 2005, when OTR, on behalf of Jean-Claude and Christo, approached BLM and the Colorado State Parks to reinitiate the Project. After significant revisions, the Project is proposed to consist of 5.9 miles of steel cables, anchored on the riverbanks between 8 and 25 feet above a 42-mile stretch of the Arkansas River, over which fabric panels will be suspended. (R. 6057 at 45437.) The Project consists of three phases: (1) installation of the anchors and cables, which is expected to take approximately 28 months; (2) a two-week display during which the fabric panels will be " blossomed" ; and (3) removal of the supports over approximately 3 months. (R. 6057 at 76590-91.) In all, the Project is anticipated to be installed, displayed, and removed within three years. (R. 6057 at 45441-43.)
As 160 acres of the Project are planned to be located on federal land, the Project required BLM approval, which is conditioned on BLM finding that the Project is in compliance with the Royal Gorge RMP. (R. 6057 at 45436.) Based on the scope of the Project, BLM published a Notice of Intent in the Federal Register in 2006, stating its intent to prepare an Environmental Impact Study (" EIS" ) for the Project. (R. 4739 at 28356; 6057 at 45438, 45493.) After its initial review, on July 28, 2008, BLM found the Project to be in " broad conformance" with the Royal Gorge RMP, but intended to use the EIS process to study the issue more closely. (R. 6100 at 47846; 6789 at 76643-46.)
BLM enlisted the support of more than thirty cooperating state and federal agencies and, in July 2010, released a Draft Environmental Impact Statement (" DEIS" ) for public comment. (R. 6057 at 45493; 6789 at 76657.) The public made more than 3,5000 submissions during the public comment period, which totaled more than 4,500 individual comments. (R. 6789 at 76657.) After considering these comments and adjusting its analysis of the Project in response, in July 2011, BLM issued the Final Environmental Impact Statement (" FEIS" ). (R. 6057 at 45493.)
In November 2011, BLM issued a Record of Decision (" ROD" ) finding that the Project conformed to the Royal Gorge RMP and authorizing the land use under 43 C.F.R. § 2920.1-1(b). (R. 6057.) In approving the Project, BLM imposed a variety of mitigation and avoidance measures. For example, during the installation phase, BLM disallowed work during bighorn sheep lambing season and migratory bird nesting season, and placed restrictions on lane closures during certain times of the year. (R. 6057 at 45461-92.) BLM also required OTR to fully remediate the Project area, and to post a significant bond to ensure that the remediation is completed. ( Id. at 45490-92.) BLM found that its mitigation and remediation plans reduced concerns regarding potential negative impacts on the area's natural resources to the point that the Project could be approved. ( Id. at 45448-51.)
After the ROD was issued, a third party appealed the decision to the Department of Interior Board of Land Appeals (" Board" ).
(R. 8358.) On June 28, 2013, the Board issued its decision upholding the BLM's land use authorization. (R. 8329.) The Board's decision constitutes the final ...