from the United States District Court for the District of
Colorado (D.C. No. 1:15-CV-00858-CMA)
R. Mellgren, (Peter M.K. Frost, with him on the briefs),
Western Environmental Law Center, Eugene, Oregon, for
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
HARTZ, SEYMOUR, and EID, Circuit Judges.
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
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.
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).
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.
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).
The Canada lynx
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
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.
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 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.
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
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).
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.
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.
The Tennessee Creek Project
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 ...