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Guardians v. Conner

United States Court of Appeals, Tenth Circuit

April 15, 2019

WILDEARTH GUARDIANS, Plaintiff-Appellant,
v.
TAMARA CONNER, in her official capacity as District Ranger, Leadville Ranger District, San Isabel National Forest, United States Forest Service; UNITED STATES FOREST SERVICE, a federal agency of the United States Department of Agriculture, Defendants-Appellees.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-00858-CMA)

          John R. Mellgren, (Peter M.K. Frost, with him on the briefs), Western Environmental Law Center, Eugene, Oregon, for Plaintiff-Appellant.

          Sommer H. Engels (Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Andrew C. Mergen, Allen M. Brabender, and Barclay T. Samford, Attorneys, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., and Tyler Clarkson, Deputy General Counsel, and Kenneth Capps, Office of General Counsel, United States Department of Agriculture, with her on the brief), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C for Defendants-Appellees.

          Before HARTZ, SEYMOUR, and EID, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         The dispute before us concerns the Tennessee Creek Project (the Project), an effort of the United States Forest Service (the Service) in the San Isabel and White River National Forests to protect the forest from insects, disease, and fire; improve wildlife habitat; and maintain watershed conditions. In 2014 the Service published an environmental assessment (EA) of the Project, followed by a Decision Notice (DN) and Finding of No Significant Impact (FONSI). One of the EA's many conclusions was that the Project was unlikely to adversely affect Canada lynx, and the DN/FONSI declared that the Project would not significantly impact the human environment.

         WildEarth Guardians sought review in the United States District Court for the District of Colorado, arguing that the Service had violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by failing in its EA to adequately assess the Project's effects on lynx and by failing to prepare an environmental impact statement (EIS). The district court upheld the agency action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Service satisfied its NEPA obligations when it reasonably concluded in its EA that under a worst-case scenario the lynx would not be adversely affected by the Project and reasonably concluded that an EIS was not necessary.

         I. BACKGROUND

         A. NEPA framework

         We have called NEPA the "centerpiece of environmental regulation in the United States." New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). The statute's "twin aims" are to ensure that agencies consider the environmental effects of their actions and inform the public of having done so. Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97 (1983). It does not compel "agencies to elevate environmental concerns over other appropriate considerations." Id. Instead, NEPA's mandate is that agencies "pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives." Richardson, 565 F.3d at 703; see also Marsh v. Oregon Nat. Res.'s Council, 490 U.S. 360, 371 (1989). It "merely prohibits uninformed-rather than unwise-agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

         If an agency is considering an action that might affect the environment, it must follow a process prescribed by NEPA and its implementing regulations. See 42 U.S.C. § 4321 et seq.; 40 C.F.R. § 1500 et seq. First, "the agency must determine whether the proposed action will significantly affect the environment." Western Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1269 (10th Cir. 2013) (emphasis added). Unless the answer is "immediately apparent," the agency must prepare an EA, which is "a concise public document that briefly provides sufficient evidence and analysis for determining the appropriate next step." Western Watersheds Project, 721 F.3d at 1269 (internal quotation marks omitted); see 40 C.F.R. § 1508.9. "If the EA concludes that the proposed action will have no significant effect on the environment, the agency may issue a [FONSI] and move forward with the proposed action." Western Watersheds Project, 721 F.3d at 1269; see 40 C.F.R. §§ 1501.4(e), 1508.13. Otherwise, the agency must prepare an EIS-a more extensive analysis assessing all the predicted impacts on the environment and comparing the proposed action to all reasonable alternatives. See Richardson, 565 F.3d at 703-04; 40 C.F.R. § 1502.14.

         Because NEPA provides no private cause of action, see Utah Envtl. Congress v. Russell, 518 F.3d 817, 823 (10th Cir. 2008), challenges to an EA or FONSI must be brought under the Administrative Procedure Act (APA), which instructs us to review whether an agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A). See Russell, 518 F.3d at 823; Utah Shared Access All. v. United States Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002).

         B. Factual Background

         1. The Canada lynx

         The Canada lynx is native to the snowy, high-altitude coniferous forests of Colorado's Southern Rockies. These mountains provide the conditions necessary for lynx habitat: elevated forests dominated by spruce-fir, lodgepole pine, and aspen-conifer mix, and populated by snowshoe hare for lynx to prey on. The U.S. Fish and Wildlife Service (FWS) designated the lynx as a threatened species in 2000. See 65 Fed. Reg. 16052 (March 24, 2000). A year earlier the Colorado Division of Wildlife began releasing lynx into the wild to augment the very small population. By 2007, it had released 218 lynx.

         From 1998 to 2000, biologists from the Service, Bureau of Land Management, National Park Service, and the FWS jointly compiled information on lynx in the contiguous United States, culminating in the 2000 publication of the Canada Lynx Conservation Assessment and Strategy (LCAS). The LCAS instructed agencies to map Lynx Analysis Units (LAUs), which are geographic areas approximating the size of the home range of a female lynx to be used "to begin the analysis of potential direct and indirect effects of projects or activities on individual lynx, and to monitor habitat changes." Bill Ruediger et al., USDA Forest Service, USDI Fish and Wildlife Service, USDI Bureau of Land Management, and USDI National Park Service, Canada Lynx Conservation Assessment and Strategy, 6-2 (2d ed. 2000). It also recommended various conservation measures to protect lynx habitat on federal lands. For example, if an agency intended to take management action within an LAU, the LCAS instructed it to map lynx denning and foraging habitat and to ensure that at least 10% of the lynx habitat in the LAU would remain denning habitat. See LCAS at 7-4. And because the lynx population in the Southern Rockies is limited by the availability of snowshoe hare (the primary prey for lynx), the LCAS also recommended various measures to maintain the horizontal cover (e.g., shrubs, understory trees, and low limbs) necessary for snowshoe-hare habitat. See LCAS at pp. 7-4-7-6. A month after the LCAS was published, regional managers of the Service and the FWS in the Southern Rockies signed the Lynx Conservation Agreement, committing themselves to consider the LCAS's recommendations before undertaking new actions in lynx habitat. The agreement was revised and extended in 2005, and amended in 2006.

         In 2008 the Service adopted the Southern Rockies Lynx Amendment (SRLA). This document superseded the Lynx Conservation Agreement, and it amended the Land and Resource Management Plans of eight National Forests in the Southern Rockies. Its purpose was to strike "a reasonable balance in providing for the conservation of lynx habitat while also allowing appropriate levels of human uses to occur." Aplt. App. at 227. The SRLA imposes seven standards on agencies, such as a standard stating that "[t]imber management projects shall not regenerate[1] more than 15 percent of lynx habitat on [National Forest System] lands within an LAU in a ten-year period." Aplee. App. at GA7 (footnotes omitted). The SRLA also includes nonmandatory guidelines that recommend "actions that will normally be taken to meet [SRLA] objectives." Aplt. App. at 227.

         The standards and guidelines of the SRLA were adopted only after completion of an EIS. The draft EIS for the SRLA (issued in 2004) and the supplemental draft EIS (issued in 2006) received nearly 300 comments. The final EIS explored five different alternatives, at least one of which-Alternative B-would have included greater protection for lynx denning habitat than Alternative F, which the Forest Service ultimately adopted. For one thing, Alternative B would have included a standard similar to the one in the LCAS that 10% of lynx habitat in each LAU must be maintained as denning habitat. The Service explained in its EIS that such a standard was probably unnecessary because most LAUs already have between 20% and 40% denning habitat, in which case the availability of denning habitat would not be a limiting factor for lynx. Indeed, research after the study that led to the 10% standard in the LCAS concluded that lynx use "a greater variety of habitat for denning" than previously thought. Aplt. App. at 232. The research showed that lynx den sites "are found in both mature and younger forests that have a large amount of cover and downed, large woody debris. . . . [L]ynx have used all kinds of deadfall for den sites, so it is likely almost any forest does supply denning habitat. . . . The research does not indicate a certain minimum amount of denning habitat is required for lynx." Aplee. Fed. R. App. P. 28(j) Letter of 11/17/2018, attachment at T01678.

         Yet the SRLA still protected denning habitat. Guideline VEG G11 states that "[i]f denning habitat appears to be lacking in the LAU, then projects should be designed to retain some coarse woody debris, piles, or residual trees to provide denning habitat in the future." Aplee. App. at GA9 (footnotes omitted). The SRLA also advises agencies to protect certain types of vegetation that are beneficial to lynx and their prey, and to ensure that lynx denning habitat is near snowshoe-hare winter habitat:

Guideline VEG G1: Vegetation management projects should be planned to recruit a high density of conifers, hardwoods, and shrubs where such habitat is scarce or not available. Priority for treatment should be given to stem-exclusion, closed-canopy structural stage stands to enhance habitat conditions for lynx or their prey (e.g. mesic, monotypic lodgepole stands). Winter snowshoe hare habitat should be near denning habitat.

Aplee. App. at GA9 (footnotes omitted).

         The SRLA's standards and guidelines also aim to protect the winter habitat of snowshoe hare, which are the primary source of food for lynx. The SRLA describes snowshoe-hare winter habitat as "places where young trees or shrubs grow densely- thousands of woody stems per acre-and tall enough to protrude above the snow during winter, so snowshoe hare can browse on the bark and small twigs." Aplt. App. at 239. Several studies have identified spruce-fir stands as providing the highest snowshoe-hare densities of forest types in the region, but snowshoe hare can also populate aspen and lodgepole-pine stands, so long as the stands provide enough horizontal cover, which the SRLA defines as "visual obscurity provided by vegetation that extends to the ground or snow surface." Aplt. App. at 655.

         Further, the SRLA Implementation Guide provides clarification and guidance on how agencies should remap LAUs. An LAU should approximate the size of the home range of a female lynx in the Southern Rockies (one study reported that this averaged about 18, 500 acres). It also must contain at least 6, 400 acres of "primary vegetation," Aplee. App. at GA45, which typically consists of spruce-fir, Douglas-fir, aspen-mix, and seral lodgepole-pine stands-forest types that can support lynx denning, rearing, and foraging. See Aplee. App. at GA43-45.

         2. The Tennessee Creek Project

         a. Scope

         The Project is a response to a mountain-pine-beetle epidemic that impacted forest stands on the White River and San Isabel National Forests, and an associated threat to headwaters that serve communities along Colorado's Front Range. It will be implemented over 10 to 15 years "to create forest conditions that are more resilient to outbreaks of insects, disease and wildfire; to improve habitat for threatened, endangered and sensitive species and other important wildlife species; and to provide for ...


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