United States District Court, D. Colorado
WILDEARTH GUARDIANS, HIGH COUNTRY CONSERVATION ADVOCATES, CENTER FOR BIOLOGICAL DIVERSITY, SIERRA CLUB, and WILDERNESS WORKSHOP, Petitioners,
DAVID L. BERNHARDT, in his official capacity as United States Secretary of the Interior, UNITED STATES OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, JOSEPH BALASH, in his official capacity as Assistant Secretary of Land and Minerals Management, U.S. Department of Interior, GLENDA OWENS, in her official capacity as Acting Director of U.S. Office of Surface Mining Reclamation and Enforcement, and DAVID BERRY, in his official capacity as Regional Director of U.S. Office of Surface Mining Western Region, Respondents,
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
case before the Court, the plaintiff environmental
organizations seek judicial review of a decision by the
Office of Surface Mining Reclamation and Enforcement
(“OSM”). The decision recommended that the
Secretary of Interior approve a mining plan authorizing the
mining of federally owned coal on public lands by defendant
Mountain Coal Company (“MCC”). Mining is
scheduled to begin in January of 2020 in a part of the North
Fork Valley called the Sunset Roadless Area. Plaintiffs
allege that the agency decision failed to comply with the
National Environmental Policy Act (“NEPA”) and
the Administrative Procedure Act (“APA”) and must
be set aside. The Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§
The National Environmental Policy Act
National Environmental Policy Act does not prescribe any
substantive environmental standards per se. Rather NEPA is a
procedural statute designed to ensure public participation
and transparent decision-making by federal agencies.
Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989). Before taking major action, NEPA
requires federal agencies to prepare an Environmental Impact
Statement (“EIS”). 42 U.S.C. § 4332(2)(C).
An EIS must take a “hard look” at the potential
environmental impacts of the agency's proposed action,
including direct, indirect, and cumulative impacts.
Robertson, 490 U.S. at 350; New Mexico ex rel.
Richardson v. Bureau of Land Management, 565 F.3d 683,
713 (10th Cir. 2009).
EIS must also ‘rigorously explore and objectively
evaluate all reasonable alternatives' to a proposed
action in comparative form, so as to provide a ‘clear
basis for choice among the options.'” WildEarth
Guardians v. U.S. Forest Serv., 828 F.Supp.2d 1223, 1236
(D. Colo. 2011) (quoting 40 C.F.R. § 1502.14).
“Reasonable alternatives are those which are
‘bounded by some notion of feasibility,' and, thus,
need not include alternatives which are remote, speculative,
impractical, or ineffective.” Id. at 1236-37
(quoting Utahns for Better Transp. v. U.S. Dep't of
Transp., 305 F.3d 1152, 1172 (10th Cir. 2002) and citing
Custer Cnty. Action Ass'n v. Garvey, 256 F.3d
1024, 1039-40 (10th Cir. 2001)). “The EIS also must
briefly discuss the reasons for eliminating any alternative
from detailed study.” Id. (citing 40 C.F.R.
NEPA, an agency may adopt pre-existing NEPA analyses prepared
by other agencies. 43 C.F.R. § 46.120(c). The adopting
agency must determine, “with appropriate supporting
documentation, that it adequately assesses the environmental
effects of the proposed action and reasonable
alternatives.” Id. Supporting documentation
“must include an evaluation of whether new
circumstances, new information or changes in the action or
its impacts not previously analyzed may result in
significantly different environmental effects.”
Id. To determine whether alleged deficiencies in an
EIS merit reversal, the Court applies “a rule of reason
standard (essentially an abuse of discretion
standard).” Utahns for Better Transp., 305
F.3d at 1163.
The Mineral Leasing Act (“MLA”) and Surface
Mining Reclamation and Control Act
allows the Secretary of the Interior to lease federal coal
resources. See 30 U.S.C. §§ 181, 201. The
Bureau of Land Management (“BLM”) largely
implements this function. The MLA also authorizes the
Secretary to approve proposed mining, but if that action
“might cause significant disturbance of the
environment, ” the operator must submit a plan to the
Secretary for approval. 30 U.S.C. § 207(c). OSM has been
charged with preparing and submitting to the Secretary a
decision document “recommending approval, disapproval
or conditional approval of the mining plan.” 30 C.F.R.
the SMRCA, OSM must base its recommendation on, among other
things, information prepared in compliance with NEPA,
“comments and recommendations or concurrence of other
federal agencies, as applicable, and the public, ”
“findings and recommendations of the Bureau of Land
Management with respect to the resource recovery and
protection plan and other requirements of the lease and the
Mineral Leasing Act.” 30 C.F.R. § 746.13.
The Sunset Roadless Area
recently, the Sunset Roadless Area contained 5, 800 acres of
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. In High Country
Conservation Advocates v. United States Forest Serv. (High
Country I), I described this area as “undoubtedly
wild, relatively empty, and home to diverse flora and
fauna.” 52 F.Supp.3d 1174, 1183 (D. Colo. 2014). In
addition to serving as a habitat for numerous species of
wildlife, the area also draws recreational visitors.
door to the Sunset Roadless Area sits the West Elk coal mine.
This underground mine has been operating since 1981, mostly
beneath public lands managed by the Forest Service. See
High Country I, 52 F.Supp.3d 1174. Since that case
was decided, coal exploration activities began in late 2018,
and construction of mining sites in the Sunset Roadless Area
continues to expand into the Sunset Roadless Area under the
new mining plan, it will build approximately 8.4 miles of new
roads and install 43 methane drainage wells throughout this
natural landscape. MCC's methane drainage wells will
release methane, a powerful greenhouse gas, directly into the
atmosphere. The United States Forest Service
(“USFS”) estimated that the total methane
released from the proposed expansion would be approximately
11.91 million tons. AR 000320.
in this case are a collection of non-profit environmental
groups who identify as “conservation groups.” ECF
No. 1 at 4. Plaintiff WildEarth Guardians is a non-profit
organization “dedicated to protecting and restoring the
wildlife, wild places, and wild rivers throughout the
American West.” Id. at 4-5. Since 1977,
Plaintiff High Country Conservation Advocates has operated in
the Gunnison area, working to address issues “that
affect Gunnison County's clean air, clean water, public
lands, and health wildlife.” Id. at 5.
Plaintiff The Center For Biological Diversity is a non-profit
environmental organization that “uses science, policy,
and law to advocate for the conservation and recovery of
species on the brink of extinction and the habitats they need
to survive.” Id. Plaintiff Wilderness Workshop
is a Colorado-based nonprofit “engaged in research,
education, legal advocacy and grassroots organizing to
protect the ecological integrity of local public
lands.” Id. at 6. Members of these
organizations recreate in the Sunset Roadless Area and nearby
public lands; they visit for the opportunity to enjoy the
solitude and quiet of the area as well as the opportunity to
hike, camp, and observe wildlife. Id.
Sierra Club is a national environmental non-profit group that
shares similar conservation goals as the other plaintiffs in
this case. In addition, the Sierra Club is dedicated to
“practicing and promoting the responsible use of the
Earth's resources and ecosystems.” Id.
these groups participated in the public comment process
associated with agency approvals of modifications to the West
Elk mine lease and the coal exploration plan of portions of
the Sunset Roadless Area. See High Country I, 52
F.Supp.3d 1174 and High Country Conservation Advocates v.
U.S. Forest Serv. (High Country III), 333 F.Supp.3d 1107
(D. Colo. 2018) (decision currently on appeal). Conservation
groups subsequently brought multiple suits against BLM and
USFS for their failure to comply with NEPA in those
decisions. Id. Though OSM did not solicit public
comments prior to its approval of the mining plan at issue in
this case, conservation groups submitted an unsolicited
letter registering concerns regarding OSM's proposed
defendants come from two groups. First there are the federal
defendants, Secretary of Interior David Bernhardt, OSM, David
Berry, Regional Director of OSM's western region, Glenda
Owens, Director of OSM, Joseph Balash, Assistant Secretary of
Land and Minerals Management of the Department of Interior.
ECF No. 1 at 8. OSM's decision to recommend approval of
the mining plan is the basis of this action.
there is MCC. MCC, a subsidiary of Arch Coal, owns leases in
West Elk Mine and petitioned OSM for the mining plan
approving its expansion of the West Elk Mine. After this suit
was filed, MCC filed an unopposed motion to intervene as a
respondent, claiming its “clear entitlement to
intervention as of right.” ECF No. 11 at 2. The motion
was granted on July 8, 2019. ECF No. 18.
The Agency Decision
decision challenged here is OSM's recommendation that the
Assistant Secretary of Land and Minerals Management approve
the proposed mining plan and OSM's accompanying record of
decision (“ROD”) explaining its recommendation.
AR 000004; AR 000014-37. The challenge also significantly
implicates OSM's NEPA Adequacy Review Form (NARF) in
which it evaluated the proposed action's compliance with
NEPA. AR 000038-44. Before recommending approval, OSM did not
release draft documents for public review or hold a formal
public comment period. The decision and the supporting ROD
incorporated by reference other agencies' environmental
analysis documents in order to comply with NEPA. In
particular, OSM adopted and heavily relied on the findings
made in USFS's “supplemental and final” EIS
(“SFEIS”) made in response to this Court's
ruling in High Country II. AR 000038; AR 000015.
plaintiffs initiated this suit in July of 2019, this case has
an extensive history going back to 2009. MCC first sought to
expand the West Elk mine in 2009. In 2012 and 2013, USFS and
BLM issued several decisions allowing the expansion to move
forward. In 2012 USFS adopted the Colorado Roadless Rule
which included an exception for the North Fork Coal Mining
Area allowing the construction of temporary coal mine roads
in the Sunset Roadless Area, among other areas. 77 Fed. Reg.
39, 576, 39, 576 (July 3, 2012). Id. Also in 2012,
USFS consented to, and BLM subsequently approved of, proposed
lease modifications to MCC's lease of the West Elk mine.
High Country I, 52 F.Supp. at 1184. In 2013, BLM
approved a coal exploration plan. Id. at 1185.
2014, conservation groups challenged these actions in
High Country Conservation Advocates v. U.S. Forest
Service (High Country II), 67 F.Supp.3d 1262
(D. Colo. 2014). This Court found that several agency
decisions violated NEPA by failing to account for the
environmental costs of the action in their cost/benefit
analysis. Id. at 1195-97. This Court vacated the
exploration plan as well as the lease modifications, and MCC
was enjoined from actions taken pursuant to those decisions.
Id. at 1266-67.
2017, the agencies began again. BLM and USFS reinstated the
coal mine exception to the Colorado Roadless Rule, 82 Fed.
Reg. 9, 973-01 (Feb. 9, 2017), and initiated proceedings to
lease a portion of the Sunset Roadless area to MCC. They also
issued the SFEIS, which contained new analysis conducted in
attempted compliance with the decision in High Country
II. AR 000190. Conservation groups again challenged
these and other related agency actions in High Country
III, 333 F.Supp.3d 1107 (D. Colo. 2018). The district
court upheld the agency actions, and conservation groups
appealed to the Tenth Circuit. High Country Conservation
Advocates v. U.S. Forest Serv., No. 18-1374 (10th
Circuit appeal filed Sept. 11, 2018).
High Country III, OSM recommended the approval of
MCC's proposed mining plan and issued an ROD explaining
its decision. AR 000004; AR 000014-000037. With mining
scheduled to begin in early 2020, plaintiffs filed this suit.
The Court granted MCC leave to intervene in the case on July
8, 2019. Plaintiff's filed their opening brief on August
19, 2019. Oral arguments on the merits were heard before this
Court on October 17, 2019.
this Court may only set aside an agency decision if after a
review of the entire administrative record the Court finds
that the decision was “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also Davis v.
Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002).
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. Deficiencies in an EIS that
are mere “flyspecks” and do not defeat NEPA's
goals of informed decisionmaking and informed public comment
will not lead to reversal.
New Mexico ex rel. Richardson, 565 F.3d at 704
(internal quotation marks and citations omitted). Plaintiffs
bear the burden of proof on the question of whether an
agency's decision was arbitrary or capricious.
Citizen's Comm. to Save Our Canyons v. Krueger,
513 F.3d 1169, 1176 (10th Cir. 2008) (noting that the
agency's decision is presumed valid). The agencies'
decisions-as long as they are neither arbitrary nor
capricious-are entitled to deference, and this Court cannot
substitute its own judgment for the agency's. Vt.
Yankee Nuclear Power Corp. v. Natural Res. Def. Council,
435 U.S. 519, 555 (1978). Deference to the agency is also
“especially strong where the challenged decisions
involve technical or scientific matters within the
agency's area of expertise.” Wyoming v. U.S.
Dep't of Agric., 661 F.3d 1209, 1246 (10th Cir.
2011) (quoting Morris v. U.S. Nuclear Regulatory
Comm'n, 598 F.3d 677, 691 (10th Cir. 2010)). But as
I noted in High Country I, the Court will not
“defer to a void.” Oregon Natural Desert
Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092, 1121
(9th Cir. 2010). “In addition to requiring a reasoned
basis for agency action, the arbitrary or capricious standard
requires an agency's action to be ...