United States District Court, D. Colorado
ORDER AFFIRMING AGENCY DECISION
CHRISTINE M. ARGUELLO United States District Judge
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
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).
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
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).
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).
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
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.
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
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.
STANDARD OF REVIEW
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.
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
The Service's Analysis of the Project's
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
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
Court addresses each argument in turn.
The EA's Site-Specific Detail a. The Parties'
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
• 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
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
• 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 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;
• 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
‘‘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.”).
The Court's Conclusion
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. It objected that
“A map of where these temporary roads will be located
should also be included in the EA” (T10754),
also objected that “the Forest Service did not identify
specific units.” (T10821). 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).
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
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 ...