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Colorado Prairie Initiative v. Lowney

United States District Court, D. Colorado

March 30, 2018

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.


          CHRISTINE M. ARGUELLO United States District Judge

         This 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.


         The 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. (Id.)

         CPI 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.)

         The 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.)

         The 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 at 544-45.)

         The 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. (Id.)

         Unsatisfied 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 activities. (Id.)

         Through 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.)

         Notwithstanding 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.


         NEPA is 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).

         Actions 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.

         APHIS 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.

         Finally, 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).


         The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2202. Venue is proper pursuant to 28 U.S.C. § 1391(e).


         A 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.

         Forest 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)).

         In 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 ...

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