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Colorado Environmental Coalition v. Office of Legacy Management

United States District Court, D. Colorado

February 2, 2018

COLORADO ENVIRONMENTAL COALITION, INFORMATION NETWORK FOR RESPONSIBLE MINING, CENTER FOR NATIVE ECOSYSTEMS, CENTER FOR BIOLOGICAL DIVERSITY, and SHEEP MOUNTAIN ALLIANCE, Plaintiffs,
v.
OFFICE OF LEGACY MANAGEMENT, and UNITED STATES DEPARTMENT OF ENERGY, Defendants.

          ORDER DENYING MOTION TO DISSOLVE INJUNCTION WITHOUT PREJUDICE

          William J. Martinez United States District Judge

         This case involves a uranium mining program in southwestern Colorado overseen by the United States Department of Energy's Office of Legacy Management (for purposes of this order, “DOE”). That program is known as the Uranium Lease Management Program (“ULMP”). In 2007 and 2008, DOE approved additional uranium mining under the ULMP. Plaintiffs then sued under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., to have DOE's actions declared unlawful under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4231 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq.

         In 2011, this Court partially agreed with Plaintiffs' challenge. See Colorado Envtl. Coal. v. Office of Legacy Mgmt., 819 F.Supp.2d 1193 (D. Colo. 2011) (“CEC”). As a consequence, the Court vacated DOE's environmental review documents, stayed all existing ULMP leases, and enjoined DOE from approving additional leases or other ULMP-related activities on the lease tracts. Id. at 1224. The Court then invited DOE to “move . . . to dissolve this injunction” after it had “conduct[ed] an environmental analysis on remand that complies with NEPA, ESA, all other governing statutes and regulations, and this Order.” Id.

         Currently before the Court is DOE's Motion to Dissolve the Injunction. (ECF No. 147.) DOE puts forward new environmental review documents that, it says, remedy the violations the Court previously found. For the reasons explained below, the Court concludes that DOE's new documents mostly pass muster. There is, however, one remaining flaw regarding estimates of potential water depletion as they relate to DOE's duty to ensure that its actions do not jeopardize endangered species or their critical habitat (see Part V.C.3, below). As to that issue, the Court will order a limited remand. In the meantime, the injunction will remain in place. Therefore, DOE's motion is denied without prejudice.

         I. PROCEDURAL POSTURE

         DOE previously moved to dissolve the injunction on an abbreviated record. (ECF No. 124.) DOE's argument was, in essence, that it had generated all of the needed environmental review documents and touched upon all of the subjects missing from its previous round of documents; therefore the injunction should be lifted. (See ECF No. 124-1 at 9-14.)[1] The Court held, however, that its injunction could not be dissolved on an abbreviated record. (ECF No. 132 at 2-3.) The Court required submission of a new administrative record and new briefing, but with the burden of persuasion placed on DOE rather than on Plaintiffs. (Id. at 3.)

         In its current briefing, DOE invokes Federal Rule of Civil Procedure 60(b)(5), which permits the Court to relieve a party from a final judgment or other order when “the judgment has been satisfied, released or discharged . . . or applying it prospectively would no longer be equitable.” (See ECF No. 147 at 18-19.) Plaintiffs, for their part, argue from case law specifically about dissolving injunctions, particularly case law stating that DOE should bear a heavy burden to show that circumstances have changed. (See ECF No. 148 at 10-11.)

         The Court disagrees with both sides' proposed approaches. Plaintiffs' cited case law relates to injunctions that were meant to last indefinitely. Here, however, the Court specifically contemplated lifting its injunction after DOE completed the necessary environmental review. CEC, 819 F.Supp.2d at 1224. But the Court likewise disagrees with DOE's position that the current proceeding is limited solely to the question of whether the injunction should be lifted, leaving the question of actual compliance with NEPA, the ESA, etc., for a separate lawsuit. (See ECF No. 149 at 34.) Again, the Court stated that it would lift the injunction conditioned on DOE's compliance “with NEPA, ESA, all other governing statutes and regulations, and this Order.” CEC, 819 F.Supp.2d at 1224. That is why the Court ordered the parties to submit “a new Administrative Record and new briefing.” (ECF No. 132 at 3.) This proceeding is, in other words, a new administrative review proceeding, and will be judged accordingly.

         II. GENERAL NEPA & APA REQUIREMENTS

         NEPA “require[s] agencies to consider environmentally significant aspects of a proposed action.” Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1162 (10th Cir. 2002). “NEPA does not, however, require agencies to elevate environmental concerns over other appropriate considerations; it requires only that the agency take a ‘hard look' at the environmental consequences before taking a major action.” Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th Cir. 2008) (citation and internal quotation marks omitted). Also, “NEPA dictates the process by which federal agencies must examine environmental impacts, but does not impose substantive limits on agency conduct.” Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821 (10th Cir. 2008). NEPA merely guards against “uninformed-rather than unwise-agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

In conducting this analysis [under NEPA], the [agency] must prepare one of the following: (1) an environmental impact statement, (2) an environmental assessment, or (3) a categorical exclusion. An environmental impact statement involves the most rigorous analysis, and is required if a proposed action will “significantly affect[] the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4.
If an agency is uncertain whether the proposed action will significantly affect the environment, it may prepare a considerably less detailed environmental assessment. 40 C.F.R. § 1508.9. An environmental assessment provides “sufficient evidence and analysis” to determine whether a proposed project will create a significant effect on the environment. Id. If so, the agency must then develop an environmental impact statement; if not, the environmental assessment results in a “Finding of No. Significant Impact, ” and no further agency action is required. Id.

Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir. 2006).

         NEPA contains no private right of action, but is enforceable through the APA, which empowers a reviewing court to set aside agency action if it is, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Generally, an agency decision will be considered arbitrary and capricious

if the agency has relied on factors which Congress has 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 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court should engage in a “thorough, probing, in-depth review, ” Wyoming v. United States, 279 F.3d 1214, 1238 (10th Cir. 2002) (citation omitted), with its review of the merits “generally limited to . . . the administrative record, ” Custer Cnty. Action Assoc. v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001).[2]

         However, “[t]he scope of review under the ‘arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43; see also Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002) (stating that the court's review is “highly deferential”). The Court confines its review “to ascertaining whether the agency examined the relevant data and articulated a satisfactory explanation for its decision, including a rational connection between the facts found and the decision made.” Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006).

         In the NEPA context in particular, the district court's objective “is not to ‘fly speck' the environmental impact statement, but rather, to make a pragmatic judgment whether the environmental impact statement's form, content and preparation foster both informed decision-making and informed public participation.” Custer Cnty., 256 F.3d at 1035. The Court is to apply “a rule of reason standard (essentially an abuse of discretion standard) in deciding whether claimed deficiencies in [environmental review documents] are merely flyspecks, or are significant enough to defeat [NEPA's] goals of informed decision making and informed public comment.” Fuel Safe Washington v. F.E.R.C., 389 F.3d 1313, 1323 (10th Cir. 2004).

         III. BACKGROUND & PROCEDURAL HISTORY[3]

         A. Events Leading to the 2007 EA & FONSI

         The Court repeats the following background information from its previous order:

This case involves potential uranium and vanadium mining on approximately 27, 000 acres of land in the Uravan Mineral Belt in Mesa, Montrose, and San Miguel Counties in southwestern Colorado. The Office of Legacy Management, a division of the United States Department of Energy (collectively, “DOE”), manages the land under the ULMP.
This area in southwestern Colorado has been mined for uranium and vanadium under government programs in the past. Following World War II, in order to develop a domestic supply of uranium to meet the nation's defense needs, Congress authorized DOE's predecessor, the Atomic Energy Commission (“AEC”), to withdraw federal lands from public use and lease them to uranium mining companies. By 1949, approximately 25, 000 acres of land had been withdrawn for uranium mining. The first leasing program, conducted between 1949 and 1962, produced more than 1.2 million pounds of uranium and 6.8 million pounds of vanadium, and generated $5.9 million in royalties to the federal government.
In 1974, AEC initiated a second leasing program, the ULMP, involving 38 lease tracts on the same land at issue in this action, and five lease tracts in Utah and New Mexico. In 1984, lease agreements were renewed (for a second 10-year term) for 33 of these 43 lease tracts. . . .
In 1994, the 30 remaining leases were allowed to expire, and DOE conducted an environmental assessment to determine whether to continue leasing under the ULMP. In 1995, DOE issued a Final Environmental Assessment and Finding of No. Significant Impact, resolving to continue the ULMP. In 1996 and 1997, DOE entered into new lease agreements with 15 leaseholders. After two more leaseholders relinquished their leases in the year 2000, there were 13 active lease tracts and 25 inactive lease tracts on ULMP land.
In June 2005, with the 13 active leases nearing expiration, DOE decided to conduct another environmental assessment of the ULMP . . . . At that time, DOE noted that “[a] recent increase in the demand for uranium and vanadium has prompted DOE to consider extending the program, and increasing the number of leases [back] ¶ 38 for exploration and production.”
* * *
In July 2007, DOE released its Final Programmatic Environmental Assessment (“EA”). The EA evaluated three alternatives: (1) the Expanded Program Alternative (DOE's preferred alternative), in which the leasing program would be expanded to include 38 leases on all DOE-managed lands in the Uravan Mineral Belt; (2) the Existing Program Alternative, in which only the 13 active leases would be extended; and (3) the No. Action Alternative, in which the current leases would be allowed to expire, and either DOE would continue to manage the 27, 000 acres of land without leasing, or the land would be returned to the public domain under BLM's administrative control. The EA described the environmental setting on and near DOE's lease tracts, and evaluated the likely environmental impacts of each of the three alternatives. . . .
As a result of the analysis in the EA, DOE issued a Finding of No. Significant Impact (“FONSI”), determining to proceed with DOE's preferred alternative of expanding the ULMP to lease all 38 lease tracts. The FONSI concluded that “the proposed action does not constitute a major Federal action significantly affecting the quality of the human environment. Therefore, preparation of an environmental impact statement is not required.”
In late 2007, DOE reconfigured the lease tracts (mostly by combining certain lease tracts) so that there were a total of 31 lease tracts. During 2008, DOE issued leases for those 31 tracts to six different companies: Cotter Corporation (10 lease tracts), Golden Eagle Uranium, LLC (8), Energy Fuels Resources (6), Gold Eagle Mining, Inc. (3), U.S. Uranium Corporation (2), and Zenith Minerals, LLC (2).
During 2009, DOE approved exploration plans on five different lease tracts, and also approved a mine re-entry plan on one of those lease tracts. DOE also approved Reclamation in-lieu-of Royalties (“RILOR”) plans on 13 different lease tracts.

CEC, 819 F.Supp.2d at 1198-1201 (citations omitted).

         B. The Injunction

         Plaintiffs filed this lawsuit in July 2008. (ECF No. 1.) Substantive proceedings were severely delayed due related lawsuits proceeding under the Freedom of Information Act (see INFORM v. BLM, No. 06-cv-2269 (D. Colo., filed Nov. 13, 2006); INFORM v. DOE, No. 06-cv-2271 (D. Colo., filed Nov. 13, 2006)), and due to certain discovery the Court allowed in this lawsuit (see ECF No. 41). Plaintiffs finally filed their opening merits brief in May 3, 2011. (ECF No. 78.) One of Plaintiffs' main arguments was that DOE unlawfully chose to prepare an EA, rather than an EIS. (Id. at 23-26.)

         On June 15, 2011, DOE announced to the public that it would prepare a programmatic EIS (“PEIS”) for the ULMP. (ECF No. 82-1.) It did not, however, formally withdraw the 2007 EA or FONSI.

         On June 20, 2011, DOE filed its response brief on the merits, arguing that any challenge to the EA/FONSI was now prudentially moot and any challenge to the forthcoming EIS was unripe. (ECF No. 82 at 13-21.) DOE also responded to Plaintiffs' substantive attacks on the EA/FONSI. (Id. at 21-43.)

         This Court issued its order on October 18, 2011. (ECF No. 94.) The Court exercised its discretion not to dismiss Plaintiffs' challenge as prudentially moot, and the Court found that Plaintiffs' challenge remained ripe as to the EA/FONSI because, among other reasons, the EA/FONSI were still legally operative documents and there was no guarantee that DOE would complete the announced EIS. CEC, 819 F.Supp.2d at 1203-06.

         On the merits, the Court accepted some, but not all, of Plaintiffs' arguments. Those arguments are summarized in the various Analysis sections, below, to the extent they remain relevant to current proceedings. The upshot, however, was that the Court issued an injunction (“Injunction”) vacating the EA/FONSI, staying the existing leases on ULMP tracts, and prohibiting DOE from issuing new leases or approving lease-related activities on ULMP tracts.[4] Id. at 1224. The Injunction concluded: “After Defendants conduct an environmental analysis on remand that complies with NEPA, ESA, all other governing statutes and regulations, and this Order, Defendants may move the Court to dissolve this injunction.” Id.

         C. Post-Injunction Proceedings

         DOE completed the PEIS on March 21, 2014. (R. at 101170 (press release); R. at 101274-103269 (PEIS itself).) “At the time that the ULMP PEIS was being prepared, 29 of the 31 lease tracts were actively held under lease, and the remaining 2 tracts had not been leased.” (R. at 101363.)

         The PEIS evaluates five alternatives, as follows:

• Alternative 1 proposed terminating all existing leases, conducting reclamation as needed, and then doing nothing further save for whatever maintenance might be necessary to maintain the safety of the lease tracts. (R. at 101402, 101404.)
• Alternative 2 likewise proposed terminating all existing leases and conducting reclamation as needed, but also contemplated DOE relinquishing its management of the lease tracts and turning them over to BLM. (R. at 101405-06.) Under Alternative 2, DOE would formally terminate the ULMP. (Id.)
• Alternative 3 proposed continued exploration, mining, and reclamation on the thirteen lease tracts for which leases existed prior to July 2007 (which is when DOE issued the EA that this Court invalidated in October 2011). (R. at 101406, 101409.)
• Alternative 4 proposed maintaining all thirty-one lease tracts “available for potential exploration and mining of uranium, ” and maintaining the leases currently existing for twenty-nine of those tracts-i.e., the leases DOE executed in 2008-“for the next 10 years or for another reasonable period, as appropriate.” (R. at 101411.) Alternative 4 was considered the preferred alternative. (R. at 101277.)
• Alternative 5 was similar to Alternative 4 except that the existing leases “would continue exactly as they were executed in 2008” and would last for precisely ten years, adjusted for the time needed to prepare the PEIS. (R. at 101415.) Thus, the mining companies would likely have an incentive to operate larger mines as compared to Alternative 4, due to the shorter lease term and a consequent desire to extract as much ore as possible during that time. (Id.) Alternative 5 was the “No Action Alternative, ” given that it would preserve the status quo as it existed when DOE began developing the PEIS in June 2011. (Id.)

         On May 6, 2014, DOE issued a Record of Decision (“ROD”) adopting Alternative 4. (R. at 103860-76.) The ROD was published in the Federal Register on May 12, 2014. See 79 Fed. Reg. 26956.

         IV. NEPA ANALYSIS

         A. Matters No. Longer in Dispute

         The Court's previous order noted a number of deficiencies in the 2007 EA and FONSI. One of those deficiencies was DOE's failure to analyze combined and cumulative impacts caused by ULMP lessees' off-site activities (i.e., activities on lands not governed by DOE, such as on access roads through land controlled by other agencies). CEC, 819 F.Supp.2d at 1213. Another deficiency was DOE's failure to request the participation of the Environmental Protection Agency (“EPA”) in the NEPA process. Id. at 1216. Plaintiffs make no argument ...


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