High Country Conservation v. United States Forest ServiceHigh Country Conservation v. United States Forest Service
PUBLISH
FILED United States Court of Appeals Tenth Circuit March 2, 2020 Christopher M. Wolpert Clerk of Court
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-03025-PAB)
Robin Cooley, Earthjustice, Denver, Colorado (Yuting Chi, Earthjustice, Denver, Colorado, and Nathaniel Shoaff, Sierra Club, Oakland, California, with her on the briefs), for Plaintiffs-Appellants.
John Emad Arbab, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Jeffery Bossert Clark, Eric Grant, John L. Smeltzer, John S. Most, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.; Stephen Alexander Vaden, Kenneth Capps, Office of the General Counsel, U.S. Department of Agriculture; and Kristen Guerriero, Office of the Solicitor, U.S. Department of the Interior, with him on the brief), for Defendants-Appellees.
Michael Drysdale, Dorsey & Whitney LLP, Minneapolis, Minnesota (Sarah Goldberg, Dorsey & Whitney LLP, Salt Lake City, Utah, with him on the brief), for Intervenor Defendant-Appellee.
Before BRISCOE, KELLY, and LUCERO, Circuit Judges.
This appeal is the latest installment in a long-running dispute concerning road construction and coal leases in National Forest lands near the North Fork of the Gunnison River in Colorado. The Colorado Roadless Rule, which the Forest Service adopted in 2012, prohibits road construction in designated areas but included an exception for the North Fork Coal Mining Area (the “North Fork Exception“). See
Following these decisions, the Forest Service prepared a Supplemental Final Environmental Impact Statement (“North Fork SFEIS“) and readopted the Exception,
In the instant litigation, a coalition of environmental organizations alleges that the agencies violated NEPA and the APA by unreasonably eliminating alternatives from detailed study in the North Fork SFEIS and the Leasing SFEIS. The district court rejected these challenges. Exercising jurisdiction under
I
The North Fork Coal Mining Area includes parts of three roadless areas: Pilot Knob, Sunset, and Flatirons. The Flatirons and Sunset Roadless Areas are south of the North Fork River and Highway 133. The Pilot Knob Roadless Area is separated from the others, lying north of the river and highway. Mountain Coal operates the West Elk Mine, which is the only operating coal mine in the valley and is located in the Sunset Roadless Area. There is also an idled mine, the Elk Creek Mine, partially located in the Pilot Knob Roadless Area. Coal production at that mine ceased in 2013; as of 2015, its operator was focused on final reclamation work.
In 2012, after the Forest Service adopted the Colorado Roadless Rule, BLM approved lease modifications extending Mountain Coal‘s leases in the Sunset Roadless Area. Conservation groups filed suit challenging the Colorado Roadless Rule, the lease modifications, and a related exploration plan. The district court concluded that the agencies violated NEPA in analyzing the North Fork Exception and the lease modifications. High Country I, 52 F. Supp. 3d at 1181. After additional briefing on remedies, it severed and vacated the North Fork Exception and vacated the approval of the lease modifications. High Country II, 67 F. Supp. 3d at 1266-67.
The Forest Service initiated a new rulemaking process to reimplement the Exception. In response to a draft of the North Fork SFEIS, conservation groups submitted a comment requesting that the Forest Service analyze an alternative that would prohibit road construction in the Pilot Knob Roadless Area but permit it in the other two areas. The groups stated that this alternative—the Pilot Knob Alternative—would protect 5000 acres, permit mining on 14,800 acres and make available 128 million short tons of coal while preserving a geographically and ecologically distinct roadless area. In the North Fork SFEIS, the Forest Service eliminated the Pilot Knob Alternative from detailed study with the following explanation:
This alternative would remove the Pilot Knob Roadless Area, about 5,000 acres (about 25%) of the project area, from the North Fork Coal Mining Area. This alternative was dismissed from detailed analysis because the Colorado Roadless Rule is considering access to coal resources within the North Coal Mining Area [sic] over the long-term based on where recoverable coal resources might occur. The Rule preserves the option of future coal exploration and development by allowing temporary road construction for coal exploration and coal-related surface activities. One of the State-specific concerns is the stability of local economies in the North Fork Valley and recognition of the contribution that the coal industry provides to those communities. Preserving coal exploration and development opportunities in the area is a means of providing community stability.
Instead, the Forest Service offered detailed analyses of three options: (A) no action, which would preserve all three areas as roadless; (B) promulgation of the entire North Fork Exception, permitting mining on 19,700 acres and providing access to 172 million short tons of coal; and (C) promulgation of the North Fork Exception excluding “wilderness capable” lands in the Sunset and Flatirons Roadless
Subsequently, Mountain Coal resubmitted two applications for lease modifications, seeking to add a total of approximately 1720 acres to federal coal leases adjacent to the West Elk Mine. Approximately 1700 acres of the area at issue were within the Sunset Roadless Area and covered by the North Fork Exception. In response to the requests, the Forest Service and BLM issued a draft of the Leasing SFEIS. Environmental groups requested that the agencies analyze a Methane Flaring Alternative in the final version. Flaring converts methane, an especially potent greenhouse gas, to carbon dioxide, a less potent greenhouse gas. Under the Methane Flaring Alternative, Mountain Coal would be required to flare methane, thereby mitigating the environmental impact. In the Leasing SFEIS, the agencies eliminated the Methane Flaring Alternative from detailed study, concluding that evaluating methane mitigation measures requires site-specific data and engineering designs unavailable at the leasing stage. With consent from the Forest Service, BLM approved the modifications.
In the instant litigation, plaintiffs challenge the elimination from detailed study of the Pilot Knob Alternative in the North Fork SFEIS and the Methane Flaring Alternative in the Leasing SFEIS. The district court denied them relief, ruling the agency actions under NEPA did not violate the APA. Plaintiffs timely appealed.1
II
Because NEPA does not provide a private right of action, the agencies’ promulgation of the North Fork SFEIS and the Leasing SFEIS are reviewed as final agency actions under the APA. See Wyoming v. U.S. Dep‘t of Agric., 661 F.3d 1209, 1226 (10th Cir. 2011). We review the district court‘s decision de novo. Id.
Under the APA, we will set aside agency action only if it “fails to meet statutory, procedural or constitutional requirements, or . . . is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” N.M. Cattle Growers Ass‘n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001) (quotation omitted). Agency action is arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,” or the agency action “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “In performing arbitrary and capricious review, we accord agency action a presumption of validity; the burden is on the petitioner to demonstrate that the action is arbitrary and capricious.” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793 (10th Cir. 2010) (quotations omitted). We will “uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned,” but will not “supply a reasoned basis for the agency‘s action that the agency itself has not given.” State Farm, 463 U.S. at 43 (quotations omitted).
“NEPA requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). The “twin aims” of NEPA are to require agencies to “consider every significant aspect of the environmental impact of a proposed action” and to facilitate public involvement. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). NEPA creates “a set of action-forcing procedures that require that agencies take a hard look at environmental consequences, and that provide for broad dissemination of relevant environmental information.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quotations and citation omitted). However, it “is strictly a procedural statute” that “does not mandate substantive results.” Wyoming, 661 F.3d at 1237.
Under NEPA, an agency must include an environmental impact statement (“EIS“) in reports on “major Federal actions significantly affecting the quality of the human environment.”
In reviewing the adequacy of an agency‘s analysis of alternatives in an EIS, we apply a “rule of reason,” determining whether the “statement contained sufficient discussion of the relevant issues and opposing viewpoints to enable the [agency] to take a hard look at the environmental impacts of the proposed [action] and its alternatives, and to make a reasoned decision.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999). This “reasonableness standard applies both to which alternatives the agency discusses and the extent to which it discusses them.” Utahns for Better Transp. v. U.S. Dep‘t of Transp., 305 F.3d 1152, 1166 (10th Cir. 2002), as modified on reh‘g, 319 F.3d 1207 (10th Cir. 2003).
“[O]nce an agency establishes the objective of the proposed action—which it has considerable discretion to define—the agency need not provide a detailed study of alternatives that do not accomplish that purpose or objective, as those alternatives are not ‘reasonable.‘” Wyoming, 661 F.3d at 1244 (citations omitted). But agencies may not “define the objectives of a proposed action so narrowly as to preclude a reasonable consideration of alternatives.” Id. (quotation and alteration omitted). In short, “NEPA does not require agencies to analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or impractical or ineffective.” Richardson, 565 F.3d at 708 (quotation omitted). Moreover, “an agency need not consider an alternative unless it is significantly distinguishable from the alternatives already considered.” Id. at 708-09.
Turning to the North Fork SFEIS, we must determine whether the Forest Service reasonably eliminated the Pilot Knob Alternative from detailed study. We judge the reasonableness of the agency action against two guideposts: (1) “the agency‘s statutory mandate” and (2) the “agency‘s objectives for a particular project.” Id. at 709. With respect to the first guidepost, the Forest Service‘s statutory mandate grants it “broad discretion to regulate the national forests, including for conservation purposes.” Wyoming, 661 F.3d at 1234 (citing
As to the Forest Service‘s objectives for the particular project, the North Fork SFEIS states, “the specific purpose and need for reinstating the North Fork Coal Mining Area exception is to provide management direction for conserving about 4.2 million acres of [Colorado roadless areas] while addressing the state‘s interest in not foreclosing opportunities for exploration and development of coal resources in the North Fork Coal Mining Area.” More specifically, the North Fork SFEIS recognizes the “need . . . to provide for the conservation and management of roadless area characteristics,” including “sources of drinking water, important fish and wildlife habitat, semi-primitive or primitive recreation areas . . . and naturally appearing landscapes.” It also recognizes the need to “facilitat[e] exploration and development of coal resources in the North Fork coal mining area.” The specific project purpose thus echoes the Forest Service‘s general statutory mandate of balancing multiple possible uses. And the Pilot Knob Alternative would appear to fit within the stated project goals: it provides for conservation in one roadless area and facilitates the development of coal resources in two others.
However, the Forest Service dismissed this alternative from detailed consideration “because the Colorado Roadless Rule is considering access to coal resources within the North [Fork] Coal Mining Area over the long-term based on where recoverable coal resources might occur.” Its explanation is based solely on the fact that the Pilot Knob Alternative would protect more land and provide access to fewer tons of coal than Alternative B (reinstating the entire North Fork Exception). But that factor is relevant to only one of the agency‘s established objectives—providing for long-term coal-exploration and mining opportunities. It does not address the Forest Service‘s other objective—providing management direction for conserving roadless areas in Colorado. This one-sided approach conflicts with the agency‘s obligation under NEPA to “provide legitimate consideration to alternatives that fall between the obvious extremes.” Dombeck, 185 F.3d at 1175. Under the agency‘s logic, every alternative except Alternative B could have been eliminated from detailed study merely because it forecloses long-term coal mining opportunities.
QED: The Forest Service‘s rationale for eliminating the Pilot Knob Alternative is arbitrary. In light of the agency‘s stated objectives, the proffered explanation does not establish that the alternative was rejected as too remote, speculative, impractical, or ineffective. Where the agency omits an alternative but fails to explain why that alternative is not reasonable,
This failure is similar to BLM‘s failure in Richardson. In that case, BLM eliminated an alternative that would have closed the Otero Mesa to mining, stating it was inconsistent with the project purpose of determining which lands “are suitable for leasing and subsequent development.” 565 F.3d at 710. We explained that the project “purpose does not take development of the Mesa as a foregone conclusion. To the contrary, the question of whether any of the lands in the plan area [we]re ‘suitable’ for fluid minerals development . . . [was] precisely the question the planning process was intended to address.” Id. at 711 (emphasis omitted). We rejected the argument “that it would be impractical or ineffective under multiple-use principles to close the Mesa to development,” holding the agency “was required to include such an alternative in its NEPA analysis, and the failure to do so was arbitrary and capricious.” Id. (quotations omitted). Similarly, the agency‘s elimination of an alternative from detailed study in this case was arbitrary and capricious because its explanation for doing so was inconsistent with its stated purpose.2
In its briefs, the Forest Service asserts that the idled Elk Creek Mine, located in the Pilot Knob Roadless Area, presents distinct long-term opportunities for coal access that would be foreclosed by the Pilot Knob Alternative but not by Alternative C. But this is not the explanation the Forest Service gave for eliminating the Pilot Knob Alternative. We “may affirm agency action, if at all, only on the grounds articulated by the agency itself.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1565 (10th Cir. 1994). We cannot consider a “post-hoc rationalization” for eliminating an alternative from consideration in an EIS. Utahns for Better Transp., 305 F.3d at 1165. Because the North Fork SFEIS does not state that the Pilot Knob Alternative was eliminated from detailed study because of the existence of the Elk Creek Mine, we cannot affirm the agency‘s decision on that basis.3
The dissent adds that the Pilot Knob Alternative, unlike Alternative C, would foreclose access to existing federal coal leases or private leases and recoverable coal. But this fact does not render the Pilot Knob Alternative unreasonable. Alternative A—the no-action alternative—would also have foreclosed access to existing federal coal leases, private leases, and recoverable coal. But that did not prevent the Forest Service from considering it. Further, although Alternative C would not
The Forest Service also argues that the Pilot Knob Alternative is not significantly distinguishable from Alternative C.4 We disagree. Alternative C would protect 7100 acres of wilderness, whereas the Pilot Knob Alternative would protect 4900 acres. That is, the Pilot Knob Alternative would protect 2100 fewer acres—nearly 30% less land. This 2100-acre difference represents more than 10% of the entire North Fork Coal Mining Area.
The difference in accessible tons of coal is even greater. Alternative C would allow access to 95 million short tons of coal, whereas the Pilot Knob Alternative would allow access to 128 million short tons of coal. This represents 33 million short tons, which is approximately 35% more coal than Alternative C and 19% of the total amount of coal recoverable in the entire North Fork Coal Mining Area.
Further, the Pilot Knob Alternative is significantly distinguishable from Alternative C because it would affect entirely separate coal resources. The record indicates that if the North Fork Exception were reimplemented, mining would be less likely to occur in the areas protected under the Pilot Knob Alternative than in the areas protected under Alternative C. The Pilot Knob Alternative would foreclose mining on land adjacent to the idle Elk Creek Mine, which has not produced any coal since December 2013. The mine does not appear likely to resume production, as its operator has auctioned off mining equipment and demolished mining infrastructure within the mine. In contrast, Alternative C would foreclose mining in the Flatirons and Sunset Roadless Areas adjacent to an active coal mine—the West Elk Mine. The operator of the West Elk Mine, moreover, has applied for lease modifications that would extend the mine into areas that would be protected under Alternative C. In short, the Pilot Knob Alternative would foreclose mining only if production at the Elk Creek Mine resumed, whereas Alternative C would foreclose expansion of coal leases already sought by the operator of the West Elk Mine.
Moreover, the two alternatives would result in significantly different environmental impacts because the Pilot Knob Roadless Area is geographically separate from, and has habitat features dissimilar to, the Sunset and Flatirons Roadless Areas. We have recognized, albeit in a different context, that “location, not merely total surface disturbance, affects” environmental impacts and that “the location of development greatly influences the likelihood and extent of habitat preservation.” Richardson, 565 F.3d at 706, 707. Of the three roadless areas, only the Pilot Knob Roadless Area contains a winter range for deer and bald eagles, a severe winter range for elk, and a historic and potential future habitat for the Gunnison sage-grouse. See Balt. Gas, 462 U.S. at 97 (NEPA requires agencies to “consider every significant aspect of the environmental impact of a proposed action“).5
Forest Service‘s statutory mandate and the project goals. Richardson, 565 F.3d at 708 (quotation omitted). And it was “significantly distinguishable from the alternatives already considered.” Id. at 708-09. We thus conclude that the Forest Service‘s elimination of the Pilot Knob Alternative from detailed study in the North Fork SFEIS was arbitrary and capricious.
B
Plaintiffs also challenge the elimination from detailed study of the Methane Flaring Alternative in the agencies’ promulgation of the Leasing SFEIS. The Leasing SFEIS‘s stated purpose was to “facilitate recovery of federal coal resources in an environmentally sound manner.” It provided two bases for the agencies’ decision to eliminate the Methane Flaring Alternative from detailed study.
First, the Forest Service and BLM included a section on their elimination from detailed study of alternatives requiring Mountain Coal to use methane-mitigation measures. They noted that assessing any potential methane-mitigation measure requires “site-specific exploration data” and “resultant engineering designs,” which would be part of the mine-permitting process conducted by state agencies, OSM, and the federal Mine Safety and Health Administration (“MSHA“). And the agencies found that the effectiveness of portable methane flares in the lease modification area is uncertain because the effectiveness of a flare depends on a particular methane drainage well‘s gas composition, which was not available at the leasing stage.6
Plaintiffs argue that the Forest Service and BLM had sufficient data to evaluate the Methane Flaring Alternative from the existing operation at the West Elk Mine and the lease-modifications proposal. But they do not offer evidence indicating that the information available at the time was sufficient to analyze the feasibility and environmental impacts of methane flaring without the site-specific exploration data and engineering designs deemed necessary by the agencies. We are mindful that environmental analyses under NEPA must be conducted at “the earliest possible time.”
are authorized to condition leases to protect the environment and that BLM in particular is required to ensure that coal leases contain provisions “for the safeguarding of the public welfare.”
Because the Leasing SFEIS contains sufficient discussion of the relevant issues, we are convinced that the agencies took a hard look at the Methane Flaring Alternative. Their elimination from detailed study of the alternative was not arbitrary and capricious.
III
With respect to the North Fork SFEIS, plaintiffs seek vacatur of the North Fork Exception. Mountain Coal contends that the appropriate remedy is vacatur of the Exception only as applied to the Pilot Knob Roadless Area. “Under the APA, courts ‘shall’ ‘hold unlawful and set aside agency action’ that is found to be arbitrary or capricious. Vacatur of agency action is a common, and often appropriate form of injunctive relief granted by district courts.” WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1239 (10th Cir. 2017) (quoting
We have taken several different steps when reversing a district court decision and finding a violation of NEPA. We have: “(1) reversed and remanded without instructions, (2) reversed and remanded with instructions to vacate, and (3) vacated agency decisions.” Id. The typical remedy for an EIS in violation of NEPA is remand to the district court with instructions to vacate the agency action. See, e.g., Diné Citizens Against Ruining Our Env‘t v. Bernhardt, 923 F.3d 831, 859 (10th Cir. 2019). But a court “may partially set aside a regulation if the invalid portion is severable,”
The Colorado Roadless Rule includes a severability clause providing that, “[i]f any provision in this subpart [C.F.R. Title 36, Chapter II, Part 294, Subpart D] or its application to any person or to certain circumstances is held to be invalid, the remainder of the regulations in this subpart and their application remain in force.”
Mountain Coal urges us to sever and vacate the North Fork Exception only as applied to the Pilot Knob Roadless Area. We turn to the language of the Exception as promulgated to determine whether it contains a severable provision applying only to the Pilot Knob Area. The regulation permits temporary road construction for coal-related surface activities on “certain lands with Colorado Roadless Areas within the North Fork Coal Mining Area of the Grand Mesa, Uncompahgre, and Gunnison National Forests as defined by the North Fork Coal Mining Area displayed on the final Colorado Roadless Areas map.”
Moreover, the North Fork SFEIS dealt with the North Fork Coal Mining Area as a whole,9 rather than only with the Pilot Knob Roadless Area. We conclude that the Forest Service acted arbitrarily and capriciously in its analysis of the entire North Fork Exception by failing to study in detail the Pilot Knob Alternative. Under our traditional equitable powers to fashion appropriate relief, which are retained under the APA,
IV
For the foregoing reasons, we VACATE the district court‘s judgment and REMAND the case for entry of an order vacating the North Fork Exception.
No. 18-1374, High Country Conservation Advocates, et al. v. United States Forest Service, et al.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur in the court‘s decision that NEPA did not require consideration of the methane flaring alternative but respectfully
The “alternatives analysis” need only satisfy a “rule of reason.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999). This is not a case where the agency defined the objectives in such a manner that they could only be satisfied by one alternative. Agencies need only briefly discuss their reasons for rejecting a possible alternative. Utahns for Better Transp. v. U.S. Dep‘t of Transp., 305 F.3d 1152, 1166 (10th Cir. 2002) (quoting
The court concludes that the Pilot Knob alternative advances the purposes of the action, and that the Forest Service‘s explanation for rejecting it is arbitrary and capricious. According to the court, the rejection “is based solely on the fact that the Pilot Knob Alternative would protect more land and provide access to fewer tons of coal than Alternative B (reinstating the entire North Fork Exception),” which it argues is a rationale that could be applied to every other alternative.1 The court also concludes that because the rejection did not mention the Elk Creek Mine (which is within Pilot Knob), the argument that Alternative C did not foreclose future access to existing federal coal or private leases constitutes a post-hoc rationalization.
Both the Pilot Knob alternative (5,000 acres) and Alternative C (7,100 acres) removed acreage from coal development in order to preserve certain roadless areas. Unlike the Pilot Knob alternative, however, Alternative C did not foreclose future access to existing federal coal leases or private leases and recoverable coal. The SFEIS contained a map that identified existing and proposed coal leases and indeed mentioned the Elk Creek Mine, although it did point out that production idled in December 2015, in favor of final reclamation. III Aplt. App. 272, 273 Fig. 3-1; see also IV Gov‘t Supp. App. 940 (noting that the operator continued to show interest and another operator could theoretically operate in the future).
On this record, I disagree with the court‘s conclusion that the agency engaged in a “post-hoc rationalization” regarding the Elk Creek Mine. The agency clearly articulated that it excluded the Pilot Knob alternative because it failed to “preserve[] the option of future coal exploration and coal-related surface activities.” III Aplt. App. 270. It then discussed sites where coal mining has taken place and where existing mines sit on federal leases within the affected area, including the Elk Creek Mine. Id. at 272. The Pilot Knob alternative foreclosed access to that mine, idled or not, which fits squarely within the agency‘s rationale for rejection. The agency was not required to explicitly “state that the Pilot
I disagree that this case is analogous to N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009), where the agency took oil and gas development of Otero Mesa as a foregone conclusion and should have analyzed an alternative that would have precluded development. Here, the agency evaluated in detail a no-action alternative (Alternative A) that would have preserved all 19,700 acres of the North Fork area as roadless. A no-action alternative that continues existing development in an area is a “far cry” from an alternative that would prohibit development entirely. Id. at 711.
The court is correct that we cannot sustain the agency‘s decision on the ground that the Pilot Knob alternative was not “significantly distinguishable” from Alternative C. Id. at 708-09. The agency did not advance this reason for elimination in its SFEIS and we must affirm, “if at all, on grounds articulated by the agency itself.” Utahns for Better Transp., 305 F.3d at 1165. Yet the court‘s analysis of this issue necessarily grafts arbitrary benchmarks onto the rule of reason test and consequently curtails the discretion Congress vested in agencies through NEPA.
The court observes that the Pilot Knob alternative protects “nearly 30% less land” and affords access to “35% more coal” than Alternative C while affecting “entirely separate coal resources.” The court also accepts plaintiffs’ portrayal of the record as establishing that “the two alternatives would result in significantly different environmental impacts because the Pilot Knob Roadless Area is geographically separate from [the other roadless areas] and has dissimilar habitat features.” I doubt that geographic separation of the areas, standing alone, renders the Pilot Knob alternative significantly distinguishable. Plaintiffs also assert that Pilot Knob is “ecologically unique” because it “contains the only winter range for deer and bald eagles, the only severe winter range for elk, and the only historic and potential future habitat for the imperiled Gunnison sage-grouse.” Aplt Br. at 7. But the portions of the record cited demonstrate that these ecological features exist in other parts of the state, just not in other parts of the areas under consideration. See III Aplt. App. 279, 325, 328-39, 331. The record may establish that Pilot Knob is ecologically different from the other roadless areas, but it falls fall short of establishing that it is “ecologically unique,” even assuming
that such a standard would properly factor into the significantly distinguishable branch of the rule of reason analysis.
The court identifies distinctions between the alternatives, but it is not at all clear that they are significant enough to trigger NEPA‘s statutory mandates. The court does not provide a limiting principle for this method of reexamining the merits of alternatives. Future parties are likely to seize on catchwords like “30% less land protected,” “35% more coal made accessible,” and “dissimilar habitat features” for what makes an alternative sufficiently distinguishable, notwithstanding a lack of grounding in NEPA or its implementing regulations. The court‘s opinion may provide a roadmap for delaying federal action rather than promoting informed decision-making
The Colorado Roadless Rule, including the 19,700-acre North Fork Exception, was the product of years of deliberation, periods of notice and comment, and compromise. Our review of an agency‘s decision to eliminate an alternative must be informed by a “rule of reason and practicality.” Biodiversity Conservation All. v. Bureau of Land Mgmt., 608 F.3d 709, 714 (10th Cir. 2010). “The range of reasonable alternatives is not infinite,” Jiron, 762 F.3d at 1083 (internal quotation and citation omitted), and agencies cannot be expected to consider alternatives of finer and finer distinction. See Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1012 (10th Cir. 2012) (“By necessity, an agency must select a certain number of [alternatives] for serious study and eliminate the rest without detailed analysis.“). This court‘s role under NEPA is not to “substitute our judgment” about what alternatives are most effective to achieve an action‘s purpose, but only to “determine whether the necessary procedures have been followed.” Assocs. Working for Aurora‘s Residential Env‘t v. Colo. Dep‘t of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998). The agency met its mandate here by considering a reasonable range of alternatives and “briefly discuss[ing]” its reasons for eliminating others from detailed analysis.