United States District Court, D. Colorado
COLORADO PRAIRIE INITIATIVE, a Colorado nonprofit corporation, Petitioner,
MARTY LOWNEY, in his official capacity as the Colorado State Director for USA-APHIS Wildlife Services, JASON SUCKOW, in his official capacity as the Western Regional Director for USA-APHIS Wildlife Service, and ANIMAL AND PLANT HEALTH INSPECTION SERVICE - WILDLIFE SERVICES, a federal agency of the United States Department of Agriculture, Respondents.
ORDER AFFIRMING AGENCY ACTION
CHRISTINE M. ARGUELLO United States District Judge
matter is before the Court for review of an agency action
pursuant to the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq. The Court
has reviewed the Administrative Record, the Plaintiff's
opening brief (Doc. # 25), the Defendants' response brief
(Doc. # 31), and the Plaintiff's reply brief (Doc. # 34).
The Court holds that the agency action in this case was not
arbitrary, capricious, or otherwise contrary to law.
BACKGROUND AND PROCEDURAL HISTORY
Colorado Prairie Initiative (“CPI”) is
challenging two actions by the United States Department of
Agriculture's Animal and Plant Health Inspection Service
(“APHIS” or the “Agency”). (Doc. # 1
at 2.) CPI is a Colorado-based organization that advocates
for the conservation and restoration of prairie ecosystems.
(Id. at 3.) It seeks to establish and protect
natural prairies across Colorado “sufficient to allow
the reintroduction and survival of charismatic species such
as bison, elk, and wolves.” (Id.) CPI's
members assert that they recreate throughout Colorado and
enjoy observing prairie dogs and their predators.
challenges the Agency's prairie dog removal and control
operations in Colorado. (Id. at 2.) It claims that
“[w]ithout proper analysis, [the Agency's actions]
risk the populations of not only prairie dogs, but also the
myriad grassland species that rely on and associate with the
prairie dog colonies.” (Id. at 4.)
black-tailed prairie dog is a rodent that is both a benefit
and a nuisance to the United States. According to studies,
prairie dogs support ecosystems because, by way of example,
animals like the horned lark, killdeer, and burrowing owl
survive by preying on these prairie dogs. (AR at 47.)
Further, studies demonstrate that the presence of prairie
dogs increases the diversity and abundance of birds like the
golden eagle, the bald eagle, and the ferruginous hawk.
See (AR at 46.) Prairie dog removal or control
programs can therefore “potentially influence birds and
small rodents common on prairie dog towns.” (AR at 47.)
federal government began population control of prairie dogs
in 1915 to protect Colorado's rangelands and ranchers.
(AR at 68.) Many rural landowners and ranchers view prairie
dogs as destructive and as a danger to health, safety, and
property. (Doc. # 31 at 8.) Landowners often express concern
about the transmission of diseases carried by these prairie
dogs. (Id. at 11.) Prairie dogs and cattle have
similar diets, meaning less food available for livestock
during the growing season where prairie dogs are present. (AR
at 458.) Additionally, because birds prey on prairie dogs,
airport locations near prairie dog habitats can be dangerous,
due to the airplanes' risk of striking feeding birds. (AR
task of balancing the benefits and costs of these
black-tailed prairie dogs falls on each state. (Doc. # 31 at
9.) However, the Secretary of Agriculture is authorized to
carry out wildlife control programs to protect the
nation's agricultural resources. 7 U.S.C. §§
8351-53. The Agency therefore plays a role in the control and
management of prairie dogs. See 7 C.F.R.
§§ 2.80(a)(26), (27). The Agency's management
program includes lethal or non-lethal measures against
prairie dogs to protect agricultural resources. (Doc. # 31 at
11.) It also includes activities to protect and enhance
wildlife, including programs to protect prairie dogs and to
prevent the spread of disease among prairie dog colonies.
with the manner in which the Agency was managing the prairie
dog populations in Colorado, CPI petitioned the Agency on
April 30, 2016, for a rulemaking to create a more detailed
environmental analysis of the Agency's actions. (Doc. #
25 at 10.) The Agency denied the petition, stating that its
actions were properly excluded from an in-depth environmental
analysis. (Id.) On November 4, 2016, CPI sought
through the Freedom of Information Act (“FOIA”)
information about the Agency's prairie dog management
the FOIA request, CPI learned of the Agency's activities
in Colorado regarding prairie dog removal and control
operations. For example, it learned that on April 11, 2016,
the Agency approved a control operation for black-tailed
prairie dogs in a private landowner's pasture in Adams
County, Colorado. (AR at 1.) The operation was meant to
reduce damage by prairie dogs to seventy acres of pasture and
rangeland. (Id.) The operation was scheduled to be
completed by April 14, 2017. (AR at 2.) CPI also learned that
on October 5, 2016, the Agency approved a removal operation
for black-tailed prairie dogs in Pueblo County, Colorado. (AR
at 5.) The Colorado Department of Transportation sought to
develop six acres of land to construct its regional
headquarters. (Doc. # 31 at 12.) It thus requested the
Agency's assistance in removing the prairie dogs.
(Id.) This operation was set to be completed on
February 28, 2017. (AR at 6.)
these operational deadlines, the Agency actually concluded
its work at both sites three months prior to the commencement
of this suit. (Doc. # 31 at 2.) CPI filed its suit on
February 3, 2017, alleging that the Agency violated the
National Environmental Policy Act (“NEPA”), its
implementing regulations, and the Administrative Procedure
Act. (Doc. # 1 at 9-11.) The Agency maintains that its
activities were categorically excluded from the procedural
requirements in NEPA.
a procedural statute that ensures that federal agencies
consider the environmental impact of their actions. 42 U.S.C.
§ 4332(2)(C). NEPA does not mandate certain results from
or impose substantive limits on agency conduct, but it does
dictate the process agencies must follow in examining the
impact of their actions on the environment. Utah Envtl.
Cong. v. Russell, 518 F.3d 817, 821 (10th Cir. 2008).
Satisfying NEPA's requirements usually necessitates that
prior to acting, an agency must either prepare some kind of
environmental analysis or determine that the action is
excluded from such analysis. Id. For example, an
agency that determines through its regulations that certain
actions significantly affect the quality of the environment
must prepare an environmental impact statement
(“EIS”) before undergoing such action. 40 C.F.R.
§ 1501.3; 7 C.F.R. § 372.5(a). An agency can also
prepare an environmental assessment (“EA”) for
certain actions to determine whether an EIS is even
necessary. 40 C.F.R. § 1501.4; 7 C.F.R. § 372.5(b).
Finally, an agency can determine through its regulations that
certain actions are categorically excluded from the
requirement that agencies conduct either an EA or EIS. 40
C.F.R. § 1501.4; 7 C.F.R. § 372.5(c).
that are categorically excluded from an EA or EIS are those
that do “not individually or cumulatively have a
significant effect on the human environment.” 40 C.F.R.
§ 1508.4. The purpose of these categorical exclusions is
to promote efficiency and avoid wasting resources on agency
actions that are unlikely to have a significant environmental
impact. Russell, 518 F.3d at 821.
enacted regulations identifying those actions that are
categorically excluded from NEPA's procedural
requirements. See generally 7 C.F.R. §
372.5(c). Pertinent to this case, APHIS categorically
excludes “routine measures, ” including wildlife
control and removal actions with the use of “chemicals,
pesticides, or other potentially hazardous or harmful
substance[.]” 7 C.F.R. § 372.5(c)(1)(i). Such
control and removal activities are exempted only if they meet
four requirements: (1) the activities are localized or
contained in areas where humans will likely not be exposed;
(2) the activities will not cause contaminants to enter
bodies of water; (3) the activities will not adversely affect
federally protected species or habitat; and (4) the
activities will not cause bioaccumulation. Id.
agencies must also provide for “extraordinary
circumstances in which a normally excluded action may [have]
a significant environmental effect.” 40 C.F.R. §
1508.4. When a decision maker from the agency determines that
a categorically excluded action may significantly affect the
quality of the environment, an EA or EIS must be prepared. 7
C.F.R. § 372.5(d). Such actions causing significant
environmental effects can include routine measures,
“the incremental impact of which, when added to other
past, present, and reasonably foreseeable future actions . .
. [have] the potential for significant environmental
impact[.]” Id. at § 372.5(d)(1).
JURISDICTION AND VENUE
Court has jurisdiction pursuant to 28 U.S.C. §§
1331 and 2202. Venue is proper pursuant to 28 U.S.C. §
STANDARD OF REVIEW
reviewing court is asked to determine whether an agency's
actions were arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law pursuant to 5 U.S.C.
§ 706(2)(A). The agency's decision that its actions
fell within one of its categorical exclusions will therefore
only be set aside if the court determines that the decision
was arbitrary and capricious. Citizens' Comm. to Save
Our Canyons v. U.S.
Serv., 297 F.3d 1012, 1023 (10th Cir. 2002). This
requires the court to determine whether the agency
“examined the relevant data and articulated a rational
connection between the facts found and the decision
made.” Olenhouse v. Commodity Credit Corp., 42
F.3d 1560, 1576 (10th Cir. 1994) (citing Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S.
29, 43 (1983)).
terms of the agency's interpretation and application of
its own regulation on categorical exclusions, a court grants
the agency's application and interpretation controlling
weight unless plainly erroneous or inconsistent with the
terms of the exclusion. Thomas Jefferson v. Shalala,
512 U.S. 504, 512 (1994). So long as the agency articulated a
rational basis for its interpretation and application, and
considered all the relevant factors, the court will uphold
the agency's action. Copart, Inc. v. Admin. Review
Bd., U.S. Dep't of Labor, 495 F.3d 1197, 1202 (10th
Cir. 2007); Olenhouse ...