WildEarth Guardians v. United States Fish & Wildlife Service
2015 U.S. App. LEXIS 6333
| 10th Cir. | 2015Background
- Rocky Flats, ~6,200 acres in Colorado, formerly a DOE nuclear-weapons site; Congress enacted the Rocky Flats Act (RFA) to transfer most land to the U.S. Fish & Wildlife Service (Service) as a National Wildlife Refuge while allowing a corridor for transportation improvements along Indiana Street.
- After EPA certified cleanup, Energy transferred administrative jurisdiction to the Service in 2007. The Service later negotiated a land exchange that added land to the refuge and conveyed a ~300-foot by 100-acre corridor to local governments for a parkway.
- The corridor contains critical habitat for the threatened Preble’s Meadow Jumping Mouse. The Service completed two biological opinions under the ESA, concluding no jeopardy and anticipating no incidental take from the exchange (but recognizing take from future parkway construction may occur and require incidental-take coverage).
- The Service prepared an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) instead of an Environmental Impact Statement (EIS); EPA provided letters (2006 and 2011) addressing residual contamination (including plutonium) and the risk posed by parkway construction.
- Appellants (WildEarth Guardians, Rocky Mountain Wild, Town of Superior, City of Golden, et al.) sued claiming violations of the Rocky Flats Act, NEPA, and the ESA; district court upheld the Service, and the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority under the Rocky Flats Act to convey the corridor | RFA gave only Energy authority to "make available" the corridor; once jurisdiction transferred to the Service, no authority remained to convey | Service: RFA ambiguous; interpreting statute in context supports Service authority after transfer; also cites Refuge Act and Fish & Wildlife Act permitting exchanges | Chevron applicable; RFA silent on post-transfer conveyance; Service’s interpretation reasonable and not arbitrary — Service had authority to convey |
| NEPA – soil contamination / plutonium (need for EIS) | Construction could disturb contaminated soils and release plutonium; EA/FONSI insufficient, EIS required | Service relied on EPA findings (2006 CERCLA decision and 2011 letter addressing construction) and took a ‘‘hard look’’; EPA is expert agency on contamination | Service acted reasonably in relying on EPA determinations; no arbitrary-and-capricious NEPA violation; no EIS required |
| NEPA – air quality (ozone, NO2, emissions analysis) | EA failed to analyze ozone/NO2 with newest standards; did not quantify emissions or disclose public-health impacts | Service: EA used then-applicable state studies; new EPA standards were not yet implementable; future permitting and regional planning require further review; parkway construction is a secondary consequence of the land exchange | No NEPA violation: reliance on prevailing standards and future permitting/transportation planning was reasonable; omission of detailed emissions modeling not arbitrary |
| ESA – incidental take statement for the land exchange | Service unlawfully failed to issue mandatory incidental take statement for the land exchange | Service: biological opinions stated exchange would not likely result in incidental take; each opinion included an "incidental take statement" section and recognized that parkway construction later may require incidental-take coverage | Court rejects Plaintiffs’ claim: either no take statement was required or the biological opinions contain sufficient incidental-take statements; ESA claim fails |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (agency deference framework)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (arbitrary and capricious standard)
- WildEarth Guardians v. National Park Service, 703 F.3d 1178 (10th Cir.) (agency must consider relevant data; deference on technical matters)
- Prairie Band Potawatomi Nation v. Federal Highway Admin., 684 F.3d 1002 (10th Cir.) (APA review applied to NEPA claims)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir.) (procedure and nature of biological opinions under ESA)
- Bennett v. Spear, 520 U.S. 154 (incidental-take statement functions as permit)
- Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir.) (EA/FONSI review; consultation and public involvement considerations)