Cure Land, LLC v. United States Department of Agriculture
2016 U.S. App. LEXIS 14844
| 10th Cir. | 2016Background
- The Colorado Republican River Conservation Reserve Enhancement Program pays landowners to cease irrigation and restore marginal cropland to conserve groundwater and improve surface waters.
- In 2007 the District proposed an amendment to expand the program (35,000 → 55,000 acres), add counties, increase funding, and create a "target zone" where landowners could convey groundwater rights to the District instead of retiring wells.
- The District purchased Cure Land’s groundwater rights and built a pipeline to move that water to the North Fork of the Republican River to help Colorado meet compact obligations with Nebraska and Kansas.
- The agency (USDA/FSA) prepared a supplemental Environmental Assessment (EA) and received public opposition focused on the target zone as potentially inequitable and not producing local aquifer benefits.
- The EA concluded the amendment would have no significant negative environmental impacts overall. The agency issued a FONSI in 2012 that excluded the target zone; Cure Land sued under NEPA and the APA challenging the FONSI.
- The district court upheld the agency; the Tenth Circuit affirmed, holding the FONSI was final agency action, consistent with the EA, and complied with NEPA procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Is the FONSI reviewable final agency action? | FONSI is tentative due to caveat allowing amendment changes; not final. | FONSI consummates NEPA decision-making and determines which changes require further NEPA. | Held final: satisfies consummation and legal-consequences tests. |
| 2) Does the FONSI contradict the EA (requiring explanation)? | FONSI language implies amendment would be harmful "if" target zone included, contradicting EA's finding of no significant impacts. | FONSI permissibly states only that amendment without target zone has no significant impacts and is consistent with EA. | Held consistent with EA; no unexplained factual conflict, agency action not arbitrary or capricious. |
| 3) Was removal of target zone an improper or unsupported mitigation measure? | Removing target zone acted as mitigation for significant impacts and lacks substantial evidence. | Agency did not treat removal as mitigation; EA found no significant impacts even with target zone. | Held not a mitigation measure; EA did not find significant impacts, so objection fails. |
| 4) Did agency violate NEPA by relying on socioeconomic/public opposition or by inadequate notice/comment? | Agency relied on public perception/equity and failed to present amendment-without-target as a separate alternative for comment. | Comments were solicited on the full proposal; socioeconomic concerns were noted but not used as environmental findings; public participation was adequate. | Held NEPA procedural requirements satisfied; socioeconomic concerns not treated as environmental findings and notice/comment was adequate. |
Key Cases Cited
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA imposes procedural "hard look" duties)
- Bennett v. Spear, 520 U.S. 154 (1997) (finality test for agency action: consummation and legal consequences)
- Fed. Commc’n Comm’n v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency must explain changed positions when new factual findings contradict prior ones)
- Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) (unexplained inconsistencies between NEPA records render action arbitrary)
- Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257 (10th Cir. 2004) (use of EA and FONSI process when significance unclear)
- Krueger (Citizens’ Comm. to Save Our Canyons v. Krueger), 513 F.3d 1169 (10th Cir. 2008) (deferential APA review; agency must articulate rational connection between facts and decision)
- Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147 (10th Cir. 2004) (agency NEPA determinations can be final even if underlying project terms remain uncertain)
- Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152 (10th Cir. 2002) (agency not required to prioritize environmental over other policy concerns)
- Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980) (NEPA satisfied when agency takes required ‘‘hard look’')
- WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677 (10th Cir. 2015) (agency discretion in extent of public involvement for an EA)