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West Slope Colorado Oil and Gas Association v. Jewell

United States District Court, D. Colorado

August 16, 2017

WEST 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.

          ORDER AFFIRMING AGENCY DECISIONS

          CHRISTINE M. ARGUELLO United States District Judge.

         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 commercial trade, 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 project[3] 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 possible approaches 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 WRFO notified 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 research plots 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 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., 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. 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). 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).

         III. ANALYSIS

         A. Standing

         Plaintiff has standing to appeal the various agency actions pursuant to 5 U.S.C. § 704, on an organizational basis on behalf of its members. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). (Trade association has standing when it alleges that its members will suffer immediate or threatened injury from the challenged action so long as each member is not an indispensable party.)

         Defendants challenge Plaintiff's standing to assert NEPA claims against Defendants, arguing that its claims do not fall within the environmental zone of interests protected by NEPA. The record shows otherwise. As described in this Order, Defendants considered Plaintiff to be a stakeholder that was entitled to participate in the environmental analysis due to the potential impact of the research project. Defendants thus invited comments from Plaintiff as part of their NEPA analysis and then relied on its participation to prove their NEPA compliance to IBLA. The Court concludes therefrom that Plaintiff has standing to assert its NEPA claims.

         The Court addresses the appellate issues raised by the entities that submitted Amicus Briefs within its analysis below but not separately. The Court is mindful that these entities are unable to raise new issues on appeal. Moffat Tunnel Imp. Dist. V. Denver S.L.Ry.Co., 45 F.2d 715, 722 (10th Cir. 1930).

         B. Endangered Species Act

         The ESA provides the means to conserve endangered and threatened species. 16 U.S.C. § 1531(b). A “threatened species” is one that “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). Federal agencies are to “utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of [endangered or threatened species.]” 16 U.S.C. § 1536(a)(1). The ESA authorizes the Secretary to trap and transplant endangered and threatened species, if necessary, to bolster the species such that the ESA protections become unnecessary. See 16 U.S.C. §§ 1532(3) (defining “conservation”), 1536(a)(1). Incidental taking permits, also known as Section 10 permits, are required when non-Federal activities will result in the incidental taking of listed species. 16 U.S.C. § 1539(a)(1).

         C. Availability of ...


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