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Center For Biological Diversity v. United States Forest Service

United States District Court, D. Colorado

August 10, 2018

CENTER FOR BIOLOGICAL DIVERSITY, SIERRA CLUB, and WILDERNESS WORKSHOP, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE, DANIEL JIRÓN, in his official capacity as Acting Under Secretary of Agriculture for Natural Resources and Environment, U.S. Department of Agriculture, SCOTT ARMENTROUT, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, and KATHARINE MACGREGOR, in her official capacity as Deputy Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior, Defendants, and MOUNTAIN COAL COMPANY, LLC, Defendant-Intervenor.

          ORDER

          PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on plaintiffs' First Amended Complaint for Declaratory and Injunctive Relief and Petition for Review of Agency Action [Docket No. 39] and Plaintiffs' Amended Opening Brief on the Merits [Docket No. 47]. Plaintiffs challenge the approval of the North Fork Exception to the Colorado Roadless Rule (“CRR”) by the United States Forest Service (“Forest Service”) and the joint approval of lease modifications in favor of defendant-intervenor Mountain Coal Company, LLC (“Mountain Coal”) by the Forest Service and Bureau of Land Management (“BLM”) (collectively with the Forest Service and the individual defendants named in their official capacities, the “Agencies”). Plaintiffs' claims arise under the federal Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4331 et seq. Also before the Court is the Motion of the Institute for Policy Integrity at New York University School of Law to Participate as Amicus Curiae and with Proposed Amicus Brief in Support of Plaintiffs [Docket No. 41]. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702.

         I. BACKGROUND

         This lawsuit is part of an ongoing dispute over proposed exploration and coal mining activities in and around the Sunset Roadless Area near the west flank of Mount Gunnison in Colorado. As explained by District Judge R. Brooke Jackson in his 2014 decision:

The Sunset Roadless Area contains 5, 800 acres of relatively undeveloped forest and scrub land in a part of western Colorado called the North Fork Valley. Mount Gunnison and the West Elk Wilderness lie to the east. . . . [T]here have been human activities in the area making it less pristine than the nearby West Elk Wilderness Area. But at the same time the area is undoubtedly wild, relatively empty, and home to diverse flora and fauna.
Recreational opportunities are available in the area as well, . . . there are two trails . . . - the Sunset Trail and Trail 8152 - though they do not receive heavy use. The area is more popular for dispersed recreational activities.

High Country Conservation Advocates v. United States Forest Serv., 52 F.Supp.3d 1174, 1183 (D. Colo. 2014) (citations and footnote omitted) (“High Country”)

         The Sunset Roadless Area is located on National Forest lands managed by the Forest Service. The BLM is, however, responsible for managing coal leases on Forest Service land. See 30 U.S.C. § 181 et seq. Coal leases and lease modifications are subject to a dual-agency permitting process by which the BLM must obtain the consent of the Forest Service before approving leases or lease modifications. High Country, 52 F.Supp.3d at 1182-83 (citing 30 U.S.C. §§ 201(a)(3)(iii), 207(a); 43 C.F.R. §§ 3425.3(b), 3432.3(d)).

         Mountain Coal currently operates the West Elk Coal Mine, an underground mine that runs below parts of the Grand Mesa, Uncompahgre, and Gunnison National Forests. R. at FSLeasingII-0000046; see also WildEarth Guardians v. U.S. Forest Serv., 828 F.Supp.2d 1223, 1227 (D. Colo. 2011) (“WildEarth”). Plaintiffs, a group of environmental advocacy organizations, challenge the Agencies' approval of the North Fork Exception and modifications to Mountain Coal's lease. See Docket No. 1 at 17, ¶ 50. The changes allow Mountain Coal to perform exploration activities, including road construction, with a view toward expanded mining operations into the Sunset Roadless Area. Id. at 18, ¶ 52.

         The present dispute has its roots in earlier administrative approval processes and the lawsuit between the parties that concluded with Judge Jackson's order in High Country. In 2012, the Forest Service approved the CRR, which “extended roadless protections to a vast amount of acreage that was previously unprotected under the national rule in exchange for various concessions from environmentalists.” High Country, 52 F.Supp.3d at 1184. The CRR included a provision, referred to as the North Fork Exception, that allowed “for road construction related to coal mining on about 20, 000 acres of previously protected land including the Sunset Roadless Area, ” the Pilot Knob Roadless Area, and the Flatirons Roadless Area. Id.[1] After the CRR was approved, the BLM approved modifications to the lease held by Mountain Coal, adding new lands for the West Elk Mine, and approved an exploration plan for the newly-leased area. Id. The environmental groups filed suit in July 2013, challenging the CRR, the lease modifications, and the exploration plan. Id. at 1185.

         On June 27, 2014, Judge Jackson issued his order on the merits in High Country. He found that the lease modification's final environmental impact statement improperly discussed only the beneficial impacts expected to result from additional mining, but failed to consider environmental harms that would result. High Country, 52 F.Supp.3d at 1191. Specifically, Judge Jackson found that it was arbitrary for the Forest Service to, without explanation, quantify the expected economic benefits of additional mining, but fail to quantify the expected economic harms related to the expected increase in greenhouse gas emissions. Id. at 1190-91. He noted that the draft version of the environmental impact statement had contained such a quantification based on the “social cost of carbon protocol.” Id. The social cost of carbon protocol is “designed to quantify a project's contribution to costs associated with global climate change [and] was created with the input of several departments, public comments, and technical models.” Id. at 1190. It was “expressly designed to assist agencies in cost-benefit analyses associated with rulemakings, but the EPA has expressed support for its use in other contexts.” Id.; see also R. at FSLeasingII-031713-17 (EPA, EPA Fact Sheet, Social Cost of Carbon (Dec. 2016)). By the Forest Service quantifying benefits, but failing to quantify harms, Judge Jackson found that “[i]n effect the agency prepared half of a cost-benefit analysis, incorrectly claimed that it was impossible to quantify the costs, and then relied on the anticipated benefits to approve the project.” High Country, 52 F.Supp.3d at 1191. Judge Jackson similarly found that the CRR's final environmental impact statement (“CRR FEIS”) improperly failed to disclose the expected greenhouse gas emissions from the North Fork Exception allowing for mining operations, while at the same time basing approval on projected benefits. Id. at 1195 (“It is arbitrary to offer detailed projections of a project's upside while omitting a feasible projection of the project's costs.” (citations omitted)). Consistent with these findings, the court enjoined Mountain Coal from moving ahead with the exploration plan and ordered briefing on an appropriate remedy. Id. at 1201.

         On September 11, 2014, with the benefit of the parties' briefing on the appropriate remedy, Judge Jackson vacated the approvals of the lease modifications and the exploration plans. High Country, No. 13-cv-01723, Docket No. 101 at 7. With respect to the CRR, Judge Jackson severed the North Fork Exception from the remainder of the CRR and vacated the North Fork Exception. Id. Judge Jackson did not remand any issues for reconsideration. High Country, No. 13-cv-01723, Docket No. 102 at 2.

         After the High Country court entered judgment for plaintiffs, Mountain Coal renewed its mine expansion applications. R. at FSLeasingII-0000132 (“Applications for lease modification were resubmitted to BLM on January 30, 2015 and sent to the Forest Service for consent to lease.”). It is the regulatory actions taken by the Forest Service and BLM in relation to these renewed applications that are at issue in this proceeding. The Forest Service initiated a rulemaking to reimplement the North Fork Exception with the purpose of “provid[ing] management direction for conserving about 4.2 million acres of [Colorado roadless areas] while addressing the State's interest in not foreclosing opportunities for exploration and development of coal resources in the North Fork Coal Mining Area.” R. at CRR2-0000011. The Forest Service also reaffirmed that the new rulemaking was meant to accomplish the purposes of the 2012 CRR rulemaking. Id.[2]

         In considering whether to reimplement the North Fork Exception, the Forest Service prepared a draft supplemental environmental impact statement and then a supplemental final environmental impact statement (the “Exception SFEIS”). See R. at CRR2-0000001. As part of a revised economic analysis, the Exception SFEIS used the social cost of carbon protocol to determine the expected harm from the amount of carbon predicted to be mined in the North Fork Area. R. at CRR2-0000234-267. On December 19, 2016, the Forest Service readopted the North Fork Exception by issuing a Record of Decision. Roadless Area Conservation; National Forest System Lands in Colorado, 81 Fed. Reg. 91811 (Dec. 19, 2016).

         In April 2017, the BLM, along with Forest Service and other participating agencies, issued a supplemental environmental impact statement related to the lease modifications (the “Leasing SFEIS”) with the purposes to “facilitate recovery of federal coal resources in an environmentally sound manner” and “ensure that compliant and super-compliant coal reserves are recovered and not bypassed.” R. at FSLeasingII-0000135. The Leasing SFEIS disclosed the anticipated greenhouse gas emissions from a mine expansion, but did not use the social cost of carbon protocol to quantify expected environmental harms. R. at FSLeasingII-0000241. On December 11, 2017, the Forest Service consented to the lease modifications. R. at FSLeasingII-0000023. On December 15, 2017, the Department of the Interior approved the lease modifications. R. at BLM000017.

         On December 15, 2017, plaintiffs filed their complaint in this action. Docket No. 1. Three days later, plaintiffs moved for a preliminary injunction and temporary restraining order (“TRO”). Docket No. 8. On December 21, 2017, the Court held a hearing on plaintiffs' motion for a TRO. Docket No. 26. The Court denied plaintiffs' request for a TRO and set a preliminary injunction hearing. Id. The Court later vacated the preliminary injunction hearing on plaintiffs' motion and set an expedited merits briefing schedule. See Docket No. 28 at 2; Docket No. 32. On March 27, 2018, the Institute for Policy Integrity at New York University School of Law (“Institute”) filed a motion seeking to file a brief as amicus curiae in support of plaintiffs, which included a proposed brief. Docket No. 41.

         II. AMICUS MOTION

         The Institute requests permission to file an amicus brief in support of plaintiffs. Docket No. 41. The Agencies and Mountain Coal (collectively, “defendants”) oppose. They argue that the Institute's motion is untimely, that the Institute is not a disinterested party because it submitted comments during the administrative proceedings, and that plaintiffs are represented by competent counsel who address the same issues in plaintiffs' briefing. See Docket No. 53 at 6-12; Docket No. 54 at 2-4.

         Courts have broad discretion in determining whether to allow participation by amicus curiae. WildEarth Guardians v. Lane, 2012 WL 10028647, at *1 (D.N.M. June 20, 2012) (collecting cases). In determining whether to allow participation, courts “consider whether the amicus briefs provide ‘unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Id. at *2 (quoting Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062, 1063 (7th Cir.1997)); see also Ass'n of Am. Sch. Paper Suppliers v. United States, 683 F.Supp.2d 1326, 1327 (Ct. Int'l Trade 2010) (citations omitted) (discussing other factors). The Institute argues that it has “expertise generally in economic analysis-and particularly on the social cost of greenhouse gas metrics and the standards for federal cost-benefit analysis.” Docket No. 41 at 3. In this vein, the proposed amicus brief discusses how economic measures can aid public understanding of abstract harms, id. at 5, and argues that the challenged regulatory actions use arbitrary economic analysis and terminology. Id. at 10. Defendants and Mountain Coal request further briefing to respond, Docket No. 53 at 12; Docket No. 54 at 6, but identify nothing that they would provide in response that is not already in the record or available in reported legal decisions. Docket No. 53 at 8-10; Docket No. 54 at 5 (citing CRR2-0105119, 105127-132 (Mountain Coal's record comments) and EarthReports, Inc. v. Federal Energy Regulatory Comm'n, 828 F.3d 949, 956 (D.C. Cir. 2016)). Indeed, they argue that the Institute's arguments are “merely duplicative” of plaintiffs' arguments. Docket No. 53 at 4; see also Docket No. 54 at 3-4.

         The Court finds that the Institute's participation as amicus curiae is warranted and will grant its motion. Although the Institute addresses the same issues as the parties, the Court finds its unique perspective helpful in understanding and analyzing the issues presented. See Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1143 n.7 (10th Cir. 2010); see also Vigil v. Am. Tel. & Tel. Co., No. C-1476, 1969 WL 118, at *1 (D. Colo. Sept. 9, 1969); United States v. State of Mich., 940 F.2d 143, 165 (6th Cir. 1991). The Court further finds further briefing is unnecessary because the Institute's brief is limited to the same issues addressed by the parties, its brief was filed weeks before defendants' briefs, and defendants were afforded more combined pages than plaintiffs and the Institute. See Cmty. Ass'n for Restoration of Env't (CARE) v. DeRuyter Bros. Dairy, 54 F.Supp.2d 974, 976 (E.D. Wash. 1999).

         III. STANDING

         The party seeking redress bears the burden of establishing standing. Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). To carry this burden, plaintiffs must show “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Id. at 543 (internal quotation marks and alteration marks omitted); Lujan, 504 U.S. at 560-61. As organizations with members, plaintiffs can establish standing either in their own right or on behalf of their members. Sierra Club v. Morton, 405 U.S. 727, 739 (1972).

         In conjunction with their merits brief, plaintiffs filed updated declarations from their members that addressed events occurring after the denial of plaintiffs' TRO motion. See Docket Nos. 47-1, 47-2, 47-7, 47-8. Mountain Coal challenges the standing of plaintiffs, arguing that plaintiffs' members are unlikely to visit the Sunset Roadless Area in the future because of the road construction that occurred after the Court denied the TRO. Docket No. 52 at 10. Mountain Coal argues that the updated declarations of plaintiffs' members that they would be deterred from returning to the Sunset Roadless Area by road construction are “not credible” because either “(1) the TRO Declarants' December testimony was exaggerated, to accentuate the perception of harm and improve their chances of obtaining injunctive relief; or (2) their updated testimony is misleading, promising future visits where none are in fact likely.” Id. at 13 (emphasis omitted). However, contrary to Mountain Coal's characterization of them, the declarations do not suggest that plaintiffs' members only visit undisturbed wilderness or that the limited damage that has occurred thus far would rule out future visits to the areas at issue. See, e.g., Docket No. 47-1 at 26, ¶ 26 (“I intend to return to hike, view wildlife, and enjoy the natural and undeveloped nature of the area in June of 2018, if not earlier. . . . [R]oad construction in this area . . . will irreversibly alter the natural and undeveloped character of the area and irreparably diminish my enjoyment of future recreation.”); Docket No. 47-2 at 18-19, ¶ 39 (“My favorite time of year to visit is in the fall. . . . I hope to have this experience this coming year and for years to come.”). The Court finds the declarations establish potential harm to plaintiffs' members' aesthetic and recreational interests, which is sufficient to confer standing on plaintiffs. See Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (“While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.” (citing Morton, 405 U.S. at 734-36)); Docket No. 47-7 at 18 (“I will be unable to make future trips, or have less reason to do so, should the bulldozing, pad construction, drilling, vehicle use, noise, dust, and increased human presence associated with this coal lease expansion and development . . . occur.”).

         IV. ADMINISTRATIVE APPEAL

         A. Waiver and Res Judicata

         As an initial matter, the Court addresses defendants' arguments that plaintiffs waived, or are barred from raising, arguments that were not raised during the administrative proceedings before the decision in High Country. In particular, defendants argue that plaintiffs cannot raise the Pilot Knob alternative, the lack of baseline environmental information, and the methane flaring alternative. See Docket No. 51 at 13-16, 18-19, 32-33.

         Defendants' preclusion and waiver arguments are based on the argument that the High Country court “remanded” issues to the Agencies for consideration. See, e.g., Docket No. 51 at 18 (“Plaintiffs, moreover, cannot elude claim preclusion by directing their baseline arguments at the Exception SFEIS, because baseline information was not among the deficiencies the [High Country] Court instructed the USDA to address on remand.”); Docket No. 52 at 15 (“Fundamentally, the Pilot Knob, Baseline Data, and Methane Flaring claims are attempts to inject new arguments or relitigate old issues that are well beyond the scope of the supplemental FEIS ordered in the [High Country] remand and are thus waived.”). However, no such remand occurred. Defendants did argue in High Country that vacatur was inappropriate and that the Agencies should be allowed to supplement their findings through a continuation of the administrative procedure. High Country, No. 13-cv-01723, Docket Nos. 97 at 1-2, 98 at 3 (“Vacatur would require . . . starting the leasing process from scratch.”). But the court rejected these arguments, and it vacated the Forest Service and BLM's administrative actions as unlawful. High Country, No. 13-cv-01723, Docket Nos. 101 at 7, 102 at 2. The Forest Service and BLM later initiated new administrative approval processes based on a renewed application by Mountain Coal. R. at CRR2-0000013-14; R. at FSLeasingII-0000132. In its new rulemaking, the Forest Service considered a new alternative to the North Fork Exception that it had not considered during the 2012 rulemaking process. Compare R. at CRR-0153301 with R. at CRR2-0000012. Defendants provide no basis for barring plaintiffs from proposing new alternatives where the agency itself reopened the alternatives analysis. The cases that defendants cite involve remand or instances where the Court ordered specific analysis, which are inapposite here.[3] The newly issued SFEIS and lease modifications were “supplemental” administrative actions only in the sense that they incorporated by reference substantial information from earlier, vacated administrative actions. See, e.g., R. at CRR2-0000014 (explaining that the Exception SFEIS addressed several new issues, but incorporated by reference the earlier record because the “Colorado Roadless Rule interdisciplinary team determined that the majority of the analyses in the 2012 FEIS did not warrant supplementation due to changed circumstances and/or new information”). In such circumstances, plaintiffs are not barred by res judicata from proposing new alternatives or considered to have waived arguments not raised in prior administrative proceedings. Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 211 (4th Cir. 2009) (“[T]he fact that the two suits involve challenges to very similar courses of conduct does not matter; a prior judgment ‘cannot be given the effect of extinguishing claims which did not even then exist.'” (quoting Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 328 (1955))). Defendants do not contest that plaintiffs raised the arguments that they seek to raise at an appropriate stage of the new administrative proceedings. Accordingly, the Court rejects defendants' res judicata and waiver arguments.

         B. Standard of Review

         Pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the Court must determine whether an agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of this review is narrow. See Colo. Wild, Heartwood v. U.S. Forest Service, 435 F.3d 1204, 1213 (10th Cir. 2006) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “An agency's decision is arbitrary and capricious if the agency (1) ‘entirely failed to consider an important aspect of the problem,' (2) ‘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,' (3) ‘failed to base its decision on consideration of the relevant factors,' or (4) made ‘a clear error of judgment.'” New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 704 (10th Cir. 2009) (citation omitted). When reviewing an agency's factual determinations, the Court “ask[s] only whether the agency took a ‘hard look' at information relevant to the decision.” Id.

         “In addition to requiring a reasoned basis for agency action, the ‘arbitrary or capricious' standard requires an agency's action to be supported by the facts in the record.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994). An agency's decision, therefore, is arbitrary if not supported by “substantial evidence.” Id. “Evidence is substantial in the APA sense if it is ‘enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.'” Id. (citation omitted).

         A presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action. Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008). The deference given to an agency action “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).

         C. National ...


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