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Guardians v. Conner

United States District Court, D. Colorado

July 25, 2017

TAMARA CONNER, in her official capacity as District Ranger, Leadville Ranger District, San Isabel National Forest, United States Forest Service; and UNITED STATES FOREST SERVICE, a federal agency of the United States Department of Agriculture, Respondents.


          CHRISTINE M. ARGUELLO United States District Judge

         Petitioner Wildearth Guardians (“Petitioner”) appeals the administrative actions taken by Respondents Tamara Conner in her official capacity as District Ranger, Leadville Ranger District, San Isabel National Forest, United States Forest Service; and the United States Forest Service (“Service”), a federal agency of the United States Department of Agriculture. Petitioner seeks the reversal of the April 2014 Environmental Assessment (“EA”) which the Service undertook for the Tennessee Creek Project (Project”) and the related November 13, 2014 Decision Notice (“DN”) and Finding of No Impact Statement (“FONSI”). Petitioner alleges that Respondents violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Petitioner'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

         Lynx were listed as threatened under the Endangered Species Act (“ESA”) by the U.S. Fish and Wildlife Service (“FWS”) in 2000. 65 Fed. Reg. 16052 (March 24, 2000). Lynx therefore received ESA protection pursuant to 16 U.S.C. § 1538(a)(1). Due to their threatened status, the Southern Rockies Lynx Amendment (“SRLA”), applicable to the Land and Resource Management Plan for the Pike-San Isabel National Forest, was generated in October 2008, providing binding direction for project level decisions in lynx habitat. (T01098). It incorporates the best-available information on lynx. (T01062).

         On July 20, 2011, the Service proposed the Project to treat 13, 580 acres of forest (T2281-5) (Project Initiation Letter) within the Project Area. (T10510) (Map). The purposes and needs of the Project include the creation of forest conditions that are more resilient to insects, diseases, and fire and the improvement or maintenance of habitat for endangered species, including lynx. (T10502). The Project Area includes 16, 450 acres on the Leadville and Eagle-Holy Cross Ranger Districts. (T10501) (Map). The proposed treatments include 2, 370 acres of regeneration harvest in lodgepole pine stands, 6, 765 acres of thinning in mature lodgepole pine stands, and 345 acres of pre-commercial thinning. (T10507). Treatments will average 300-500 acres per year (T10502) in areas in need of treatment and will be implemented over the next ten to fifteen years. The Project will be implemented on some lynx habitat.

         The SRLA identifies the Lynx Assessment Unit (“LAU”) as the appropriate unit for analyzing the effects of project-level decisions on lynx habitat. (T01109). It sets goals, objectives, standards and guidelines that collectively ensure that LAUs retain a sufficient quantity and distribution of lynx habitat. LAU boundaries are designed to provide an adequate amount and spatial distribution of primary and secondary lynx habitat, and apply to habitat in the aggregate. (T01218-9).

         The Service began its determination of the environmental impact of the Project with an environmental assessment, pursuant to 40 C.F.R. 1501.4(b). The assessment would determine if the Service would be required to perform an environmental impact statement, and if not, to instead issue a “finding of no impact statement” (“FONSI”), 40 C.F.R. 1504(b); 40 C.F.R. 1508.9(a)(1).

         Although a draft EA was not required, on December 17, 2013, the Service distributed one. 43 C.F.R. § 46.305(a) required the Service to “provide for public notification and public involvement” in the preparation of its EA, and vested it with discretion to determine the methodology used. Consistent therewith, on December 19, 2013, the Service published a notice announcing a 30-day comment period on the draft EA.

         16 U.S.C. § 1536(a) required the Service to consult with FWS to ensure that the Project would not be likely to jeopardize the lynx or its habitat. On December 10, 2013, the Service prepared a draft Biological Assessment (“BA”) for the FWS to review as part of its consultation to analyze the effects of the Project on lynx. (T06255-322). The BA concluded that the Project is “not likely to adversely affect” lynx. (T06302). After receiving comments from FWS on the draft BA and public comments on the draft EA, on March 14, 2014, the Service revised the BA (T06515-76) and it again concluded that the Project is “not likely to adversely affect” the lynx. (T06566). The Service resubmitted the revised BA to FWS. On July 14, 2014, FWS concurred with the BA's conclusion, stating that the Project “may affect, but is not likely to adversely affect the Canada Lynx” (T06587) and that “no critical habitat for the lynx will be affected.” Id.

         The Service developed three alternatives for detailed consideration in the EA. (T10506-34). A no-action alternative would maintain the status quo (T10506-07), which Service concluded would not meet the purpose and need of the Project. (T10271). The proposed action Alternative 1 would regenerate lodgepole pine on 2, 370 acres, thin 7, 110 acres of mature lodgepole pine stands, and improve 115 acres of aspen stands. (T10507-08). Alternative 2 proposed a different mix of treatments. (T10512). The Service also modified the proposed action alternatives in response to public comments to the draft EA. (T11036; T02783). The service made conservative assumptions for its analysis in the EA. Based thereon, the EA concluded that the Project would not exceed the SRLA's parameters. (T10651).

         On April 11, 2014, the Service issued its Final EA, concluding that the Project, under either Alternatives 1 and 2, is “not likely to adversely affect” lynx. (T10583-4). On November 13, 2014, Respondent Tamara Conner issued the DN and FONSI, choosing to proceed with Alternative 1 of the Project.


         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 the relevant 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., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency decisions should be set aside “only for substantial procedural or substantive reasons. . . not simply because the court is unhappy with the result reached.” Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97(1983). Normally, the court may find a decision 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.

Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43.

         Review of an agency's decision is usually deferential. 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. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). If the agency's exercise of discretion is truly informed, then the court must defer to it. Utah Shared Access All. v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002).

         III. ANALYSIS

         A. The Service's Analysis of the Project's Impacts

         Petitioner claims that the EA and DN/FONSI fail to disclose, analyze, and otherwise take a hard look at the environmental effects on lynx and specific types of lynx habitat, precluding an accurate assessment of the environmental consequences of the proposed Project. While other species are present in the Project Area, Petitioner's appeal is focused on the effects of the Project on lynx. Petitioner alleges that the Service failed to create and consider the necessary site-specific data to comply with NEPA. Petitioner argues that the Service also failed to proffer this data for public comment in the preparation of its EA, although it does not appeal the methodology of the public involvement implemented by the Service. Petitioner argues that the Service needed to have prepared an environmental impact statement to cure these deficiencies.

         Citing Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999), Respondents assert that the Service analyzed the effects of the proposed treatments of the Project on lynx habitat consistent with the relevant factors of the SRLA (T10263), and both that this constituted a reasonable approach for the Service to utilize and satisfies NEPA's hard look requirement. Respondents also describe the public participation in the preparation of the EA, which they consider adequate because the process used informed the public about the effects of the Project and ensured the Service reached a well-informed decision, consistent with NEPA. (T10503-04).

         The Court addresses each argument in turn.

         1. The EA's Site-Specific Detail a. The Parties' Arguments

         Petitioner argues that the Forest Service violated NEPA as follows.

• The Service failed to take a hard look at the effects of the Project based on the absence of site-specific analyses, citing Colo. Envtl. Coal. v. Ofc. of Legacy Mgmt., 819 F.Supp.2d 1193, 1209-10 (D. Colo. 2011), and failed to disclose the specifics of the treatment units, the locations of temporary roads, and the placement of reserves. As a result, this lack of detail precludes the ability to confirm that the Service's conclusion that it will avoid lynx habitat “stands with greater than 35 percent dense horizontal cover.”
• The Service failed to meet its duty to quantify the anticipated scope of the effects of the Project on the lynx winter and denning habitat because the Service did not identify the logging units to be treated although it had already “pre-identified” some for pre-commercial thinning. (T11614). Petitioner claims that these deficiencies in the NEPA analysis rendered the EA and DN/FONSI arbitrary and capricious.
In response, Respondents contend:
• Petitioner has waived the issue of the precise location of all treatment units and temporary roads since it did not raise this issue before now;
• the Service had no duty to specify the exact location of every treatment unit and temporary road to fulfill its responsibility to take a hard look at the effects of the Project;
• the Service fashioned the Project consistent with every goal, objective, standard and guideline of the SRLA, including analyzing the effects of the Project on lynx on each LAU[1] as directed by the SRLA, which does not require it to specify these exact locations;
• the EA provides detailed guidance on treatment prescriptions (T10507-09; T10515-31), consistent with the SRLA, which the DN/FONSI adopted as requirements. (T10714-17; T10734-41);
• the EA adequately quantifies the acres of lynx habitat that will be removed by pre-commercial thinning treatments, specifies their location in prior clear-cut units, and explains how these treatments comport with the SRLA's standards (T10578; T10651-62); (T10267) (Consideration of Comments), sufficiently for Petitioner to comment during the EA process; and
• the FWS concurs that the Service's methodology is sound, the Service took a hard look at the relevant factors in its analysis, and the Project is not likely to adversely affect lynx.

         b. Additional Law

         NEPA's ‘‘twin aims'' require a federal agency ‘‘to consider every significant aspect of the environmental impact of a proposed action, '' and to ‘‘inform the public that it has indeed considered environmental concerns in its decision-making process.'' Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983). NEPA professes no public policy concerning the protection of the environment or natural resources; rather, it ‘‘requires only that an agency take a ‘hard look' at the environmental consequences of any major federal action.'' Citizen's Committee to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th Cir. 2008); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 385 (1989). NEPA allows the Service to prepare an EA to “[b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a [FONSI].” 40 C.F.R. § 1508.9(a)(1); WildEarth Guardians v. United States Fish & Wildlife Service, 784 F.3d 677, 690 (10th Cir. 2015) (An EA is a “rough-cut, low-budget [EIS] designed to show whether a fullfledged [EIS] . . . is necessary.”).

         c. The Court's Conclusion

         In accordance with these legal principles, the Court concludes as follows. Petitioner sufficiently preserved its issue for appeal by objecting to the absence of specific locations of the treatment units and temporary roads.[2] It objected that “A map of where these temporary roads will be located should also be included in the EA” (T10754), [3] and also objected that “the Forest Service did not identify specific units.” (T10821).[4] Petitioner adequately presented this claim to the Service so as to allow it to rectify the alleged violation, as well as preserving it for appeal. Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 10th Cir. 2007).

         However, the Court concludes that Petitioner does not establish a deficiency of the EA based on these claims. The Court is tasked with determining whether the Service's methodology for the analysis is sound, not whether other methods may also work, Biodiversity Conservation All., 765 F.3d 1264, 1270 (10th Cir. 2014); and its role is not to decide the propriety of competing methodologies. Committee to Preserve Boomer Lake Park v. Department of Transp., 4 F.3d 1543, 1553 (10th Cir. 1993). A review of the process shows that the Service's methodology “had a rational basis and took into consideration the relevant factors.” Utah Shared Access, 288 F.3d at 1212-13.

         Colo. Envtl. Coal., 819 F.Supp.2d 1193, which provides limited guidance as it involved mining, does not universally require site-specific analysis before implementation of the site-specific actions. Site-specific analysis is required only if the following factors are shown: (1) that the environmental impacts are reasonably ...

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