United States District Court, D. Colorado
ORDER AFFIRMING AGENCY DECISIONS
CHRISTINE M. ARGUELLO United States District Judge.
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”) 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
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).
February 2012, CSU began coordinating with BLM regarding its
then proposed research project. (BLM-000128-9.) 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 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.
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.) 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.
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).
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.
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.)
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.
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.(BLM-001621-35.) The Order constitutes the
IBLA final agency action. See 43 C.F.R. §
STANDARD OF REVIEW
court has jurisdiction under 28 U.S.C. § 1331 and 5
U.S.C. § 704.
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.
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).
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.)
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.
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.
Endangered Species Act
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).
Availability of ...