Rocky Mountain Wild v. DallasRocky Mountain Wild v. Dallas
ROCKY MOUNTAIN WILD; SAN LUIS VALLEY ECOSYSTEM COUNCIL; SAN JUAN CITIZENS ALLIANCE; WILDERNESS WORKSHOP,
Petitioners - Appellees,
v.
DAN DALLAS, in his official capacity as Forest Supervisor; BRIAN FEREBEE, in his official capacity as Regional Forester; ANNE TIMBERMAN, in her official capacity as Western Colorado Supervisor, UNITED STATES FOREST SERVICE, a Federal Agency within the U.S. Department of Agriculture; U.S. FISH AND WILDLIFE SERVICE, a federal agency within the Department of the Interior.
and
Respondents - Appellants,
TAMARA WHITTINGTON, in her official capacity as Deputy Regional Forester, et al.,
Respondents.
No. 22-1438
LEAVELL-MCCOMBS JOINT VENTURE,
Intervenor Respondent.
ROCKY MOUNTAIN WILD; SAN LUIS VALLEY ECOSYSTEM COUNCIL; SAN JUAN CITIZENS ALLIANCE; WILDERNESS WORKSHOP,
Petitioners - Appellees,
v.
DAN DALLAS, in his official capacity as Forest Supervisor; TAMARA WHITTINGTON, in her official capacity as Deputy Regional Forester; BRIAN FEREBEE, in his official capacity as Regional Forester; UNITED STATES FOREST SERVICE, a Federal Agency within the U.S. Department of Agriculture; ANNE TIMBERMAN, in her official capacity as Western Colorado Supervisor; U.S. FISH AND WILDLIFE SERVICE, a federal agency within the Department of the Interior,
Respondents.
No. 22-1439
LEAVELL-MCCOMBS JOINT VENTURE,
Intervenor Respondent - Appellant.
Katelin Shugart-Schmidt, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Todd Kim, Assistant Attorney General, with her on the briefs), for Respondents - Appellants.
Aaron D. Van Oort, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota (William Leone, Norton Rose Fulbright US LLP, Denver, Colorado, with
Travis E. Stills, Energy & Conservation Law, Durango, Colorado (Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, and Matt Kenna, Public Interest Environmental Law, Durango, Colorado, with him on the brief), for Petitioners - Appellees.
Before McHUGH, EID, and ROSSMAN, Circuit Judges.
McHUGH, Circuit Judge.
Intervenor Leavell-McCombs Joint Venture (“LMJV“)1 owns a 300-acre parcel of land within the Rio Grande National Forest in Colorado, abutting the Wolf Creek Ski Area (“LMJV Parcel” or “Parcel“). LMJV obtained the Parcel through a land exchange with Appellant U.S. Forest Service (“USFS“) in 1987. The LMJV Parcel was encumbered with an easement, placing some restrictions on development (“Scenic Easement“). Development of the LMJV Parcel into a ski resort village was hindered because the Parcel can be reached оnly by a gravel road managed by the USFS that is unusable by vehicles in the winter.
In 2007, after the Colorado Court of Appeals required LMJV to secure year-round road access to the Parcel before developing it, LMJV invoked the Alaska National Interest Lands Conservation Act (“ANILCA“), claiming it requires the USFS to grant access to inholdings within USFS land. The USFS initially proposed a second land exchange with LMJV to secure access to Highway 160, the highway that serves the Wolf Creek Ski Area and is closest to the Parcel. To ensure compliance with the Endangered Species Act (“ESA“), in 2013, the USFS prepared an Environmental Impact Statement (“EIS“) and worked with Appellant U.S. Fish and Wildlife Service (“FWS“) to secure a biological opinion (“BiOp“) and an incidental take statement (“ITS“). In 2015, USFS issued a final Record of Decision (“ROD“) and approved the land exchange. Rocky Mountain Wild (“RMW“), San Luis Valley Ecosystem Council, San Juan Citizens Alliance, and Wilderness Workshop (collectively, the “Conservation Groups“) challenged this action in the United States District Court for the District of Colorado under the Administrative Procedure Act (“APA“), alleging that it violated the National Environmental Policy Act (“NEPA“) and the ESA, among other allegations. In 2017, the district court vacated the USFS decision and remanded to the agency.
The USFS subsequently abandoned the land exchange option and instead considered a new alternative in the form of a right-of-way easement to LMJV across USFS land between the Parcel and Highway 160. The USFS consulted with the FWS to secure a new BiOp and ITS for the proposed action in 2018. The USFS then issued a final ROD in 2019, approving the easement.
The Conservation Groups challenged this latest ROD under NEPA, the ESA, and ANILCA. The district court vacated and remanded under the law of the case doctrine, concluding that it was bound by the reasoning of the district court‘s 2017 order. According to the district court, the USFS and FWS (collectively, the “Agencies“) relied on the same flawed EIS and utilized the same flawed reasoning in the 2018 BiOp and 2019 ROD that the district court previously addressed concerning the 2013 BiOp and the 2015 ROD.
The Conservation Groups challenge our subject matter jurisdiction and defend the district court‘s reasoning under the law of the case doctrine. They further respond that the Agencies’ actions were arbitrary and capricious under NEPA and the ESA, and that the USFS improperly extended the reach of ANILCA beyond parcels located in Alaska.
After reviewing the parties’ submissions and pertinent authorities, we vacate the district court‘s order and affirm the Agencies’ decisions. We first conclude we have jurisdiction over the matter under the practical finality rule, and that the Conservation Groups have standing. We then hold that the district court incorrectly applied the law of the case doctrine because the Agencies considered a different alternative when issuing the 2019 ROD, and much of the cited reasoning from the district court‘s 2017 order was either specifically tailored to the land exchange proposal—as opposed to a right-of-way proposal—or was expressed in dicta.
Next, under this court‘s binding precedent, we conclude ANILCA requires the USFS to grant access to the LMJV Parcel. Further, we determine that even if the Conservation Groups could show error under NEPA, they have not shown that any alleged error was harmful. Finally, we hold that the Conservation Groups fail to successfully challenge the 2018 BiOp under the ESA, and that the Agencies correctly allowed the ITS to cover not only the proposed easement, but also LMJV‘s proposed development.2
A. Factual History
In 1986, LMJV‘s predecessor and USFS prepared to enter a land exchange, in which LMJV would trade 1,631 acres of land for 420 acres of USFS land in the Rio Grande National Forest adjacent to Wolf Creek Ski Area. Rocky Mountain Wild v. Dallas, No. 15-cv-01342-RPM, 2017 WL 6350384, at *1–*2 (D. Colo. May 19, 2017). The 420 acres USFS offered in the exchange would overlay Highway 160 and facilitate LMJV‘s development of a ski village adjacent to the Wolf Creek Ski Area. Id. at *1–*3. USFS reduced the conveyance to 300 acres after finalization of the relevant appraisals, and the parcel became an inholding which could access Highway 160 only by a USFS-managed road closed to “motorized traffic” during the winter. Id. at *1. The final exchange occurred in 1987. Id.
The USFS also imposed the Scenic Easement on the plot conveyed to LMJV, limiting development on the property to residential, commercial, and recreational uses “typical to an all-season resort village.” Agencies App. Vol. I at 236. The Scenic Easement dictates the architecture of the structures, the building materials that may be used, and the height of buildings, and prohibits several uses, including feed lots, commercial greenhouses, airports, and permanent hazardous product storage. The Scenic Easement also requires the Supervisor of the Rio Grande National Forest to approve proposed development on the property, which is subject both to waiver by the supervisor and negotiation and arbitration in the event of a disagreement.
Litigation ensued when LMJV attempted to develop the Parcel, ultimately curtailing LMJV‘s development plans. Wolf Creek Ski Corp. v. Bd. of Cnty. Comm‘rs of Mineral Cnty., 170 P.3d 821 (Colo. App. 2007) (affirming the trial court order voiding approval of LMJV‘s resort development plans). The Colorado Court of Appeals held that state law “require[d] at a minimum year-around wheeled[-]vehicle access between State Highway 160” and the planned development. Id. at 830. Because the USFS road “is not usable by wheeled vehicles during the winter,” the court held the development plan did not satisfy state law. Id.
In 2010, LMJV submitted a land exchange proposal to the USFS and requested that the USFS analyze an access road across USFS lands, invoking the USFS‘s obligations to provide access to the Parсel to secure “reasonable use and enjoyment thereof” under ANILCA. LMJV App. Vol. IX at 2346. ANILCA directs the USFS to “provide such access to nonfederally owned land within the boundaries of the National Forest System as [it] deems adequate to secure to the owner the reasonable use and enjoyment thereof.”
The USFS issued its final ROD in 2015 (“2015 ROD“). The 2015 ROD concluded that “access adequate to the reasonable use and enjoyment of the LMJV property” required “automobile access on a snowplowed road.” LMJV App. Vol. XII at 3227. The ROD therefore rejected the no-action alternative because it did not meet the USFS‘s obligation under ANILCA to provide access. The ROD further “conclude[d] that selection of either action alternative would meet” that obligation. Id. After reviewing the EIS and “all resource areas,” the ROD approved the land exchange because it “provide[d] the greatest opportunity for the [USFS] to improve [its resource] management abilities while meeting [its] legal obligations [under] ANILCA.” Id. at 3230.
In addition to NEPA, the USFS and LMJV also had to comply with the ESA. Generally, the ESA prohibits the “take” of any endangered or threatened species “within the United States.” See
Regarding the land exchange proposal, the USFS attempted to comply with the ESA by consulting with the FWS and extending incidental take protections to LMJV under § 7, rather than requiring LMJV to undergo the § 10 process to insulate themselves from liability under the ESA. Rocky Mountain Wild, 2017 WL 6350384, at *7. Concerning the endangered Canada lynx, the FWS concluded that while the land exchange would result in a slight increase in the number of lynx taken due to increased traffic along Highway 160, the cumulative effects of the land exchange were “not likely to jeopardize the continued existence of [the] lynx.” LMJV App. Vol. VIII at 2299. The FWS therefore issued a BiOp and an ITS (“2013 BiOp“) exempting a take resulting from the land exchange on the condition that LMJV comply with certain “mandatory reporting and monitoring requirements . . . in order for the take exemption in the [ITS] to be valid.” Id. at 2303.
B. Land Exchange Litigation
Following the FWS‘s approval of the land exchange, the Conservation Groups filed an action in the United States District Court for the District of Colorado. Rocky Mountain Wild, 2017 WL 6350384, at *1. They sought review of the USFS‘s 2015 ROD under the APA, claiming that the USFS had violated NEPA and the ESA, among other statutes. Id. The district court set aside the 2015 ROD on several grounds. Id. at *18. First, it found that the USFS‘s attempt to comply with NEPA violated the APA because the USFS “failed to consider an important aspect of the problem, offered explanations for its decision that run counter to the evidence before the agency, failed to base its decision on consideratiоn of all relevant factors, and was wrong as a matter of law.” Id. at *11. The district court explained that there was no basis for the USFS to conclude in its EIS and ROD “that the Forest Service had no power or jurisdiction to limit or regulate development on the federal lands being conveyed to LMJV in the present exchange.” Id. The district court also held that the USFS‘s Scenic Easement on the property “demonstrates the [USFS‘s] actual power to control development.” Id.
Second, the district court determined that the USFS‘s interpretation of ANILCA was contrary to law. Id. The court did not question the USFS‘s obligation to provide access under ANILCA but disagreed with the USFS‘s “categorical refusal to consider restrictions on the federal exchange parcel based on ANILCA,” rather than applying its land exchange regulations. Id. at *12 (emphasis added). The district court explained that “[w]hen a land exchange is selected instead of a proposal under ANILCA, any limitation on [USFS] power to regulate private property to which access is granted under ANILCA is inapplicable.” Id. Finally, concerning the ESA challenge, the district court concluded that the “conservation measures” imposed “in this case do not meet [statutory] requirements,” and as a result, the court held it was “not necessary to decide whether the ‘take’ authorization [was] legal.” Id. at *15–*16.
Both the Agencies and LMJV appealed. In response, the Conservation Groups filed a conditional cross-appeal. In 2018, LMJV filed a new “Application for Access,” encouraging the USFS to proceed with the access road, or right-of-way, alternative. The Agencies subsequently moved to voluntarily dismiss their appeal, and we granted that motion. Rocky Mountain Wild v. Dallas, No. 17-1366, No. 17-1408, No. 17-1413, 2018 WL 11222966 (10th Cir. May 14, 2018). The Conservation Groups then moved to dismiss both LMJV‘s appeal and its conditional cross-appeal. Rocky Mountain Wild v. Dallas, No. 17-1366, 17-1413, 2018 WL 11225766, at *1 (10th Cir. Dec. 11, 2018). We granted the Conservation Groups’ motion, concluding that we lacked jurisdiction over the appeal because the USFS engaged in an adjudicatory action in pursuing the land exchange and the district court functionally remanded the matter to the agency, аs evidenced in part by the USFS‘s decision at the time to voluntarily dismiss its appeal and move forward with the access road alternative. Id. at *3–*5. We emphasized, however, that “[w]hether [the] USFS ultimately completes the land exchange, builds an access road across USFS land, or takes some other alternative, it is not free to ‘do nothing at all‘; it must take some action to provide LMJV with access.” Id. at *4.
C. Right-of-Way Alternative
The USFS proceeded with the right-of-way alternative and prepared a Supplemental Information Report (“SIR“) to determine whether it needed to prepare a supplemental EIS. The SIR concluded that a supplemental EIS was “not warranted” because “[any] changed conditions and new information would not present a significantly different picture of the environmental
The FWS issued a new BiOp (“2018 BiOp“) concluding that the incidence of Canada lynx killed “will increase by one lynx” due to the right-of-way and the corresponding increase in traffic on Highway 160, but the right-of-way “is not likely to result in jeopardy to the species.” Id. at 722–23. In comparison with the land exchange proposal, the FWS noted that “[t]he effects of the two actions are similar in severity, duration, and intensity from functional loss of 288–324 acres of Canada lynx habitat and traffic related effects.” Id. at 693. However, as the FWS explained after reviewing literature on the subject, higher traffic volumes resulting from the development of the LMJV Parcel may reduce the take of lynx because frequent traffic creates a barrier for the species. The FWS also considered three proposed growth models for the anticipated LMJV development in reaching its conclusions. The FWS explained that its analysis changed from that of prior BiOps because it received updated traffic data from the Colorado Department of Transportation and there had been intervening changes in the surrounding habitat which had led to shifts in the Canada lynx populatiоn. The FWS reached these conclusions without considering LMJV‘s proposed conservation efforts.
The USFS issued a final ROD in 2019 (“2019 ROD“). The 2019 ROD granted LMJV a right-of-way to construct an approximately 1,610-foot-long year-round access road over approximately 3.7 acres of federal land, as well as a 530-foot extension of a preexisting secondary road. The USFS explained that its choice to issue a right-of-way, rather than engage in a land exchange without deed restrictions, “addresses the [district court‘s] concern that the land exchange alternative gives up existing regulatory authority, while recognizing that [the USFS] cannot compel LMJV to accept any deed restrictions.” Id. at 832.
D. Right-of-Way Litigation
The Conservation Groups subsequently filed this lawsuit in the District of Colorado in May 2019 and brought fourteen counts challenging the USFS‘s decision under NEPA, ANILCA, USFS land exchange regulations, the APA, the Federal Records Act, the Freedom of Information Act, the ESA, and the National Forest Management Act. LMJV filed a motion to intervene, which the district court granted on March 31, 2020.
Upon review on the merits, the district court vacated the 2019 ROD and remanded the matter to the USFS. The district court first held that the Conservation Groups have Article III and prudential standing because they submitted declarations showing a concrete and particularized injury that is fairly traceable to the 2019 ROD. The district court then reasoned that the 2017 district court decision was binding on this matter as law of the case, stating that “[a]side from a new ROD and [BiOp], [the Agencies] rely on a virtually identical administrative record to support the decisions in this case and in the Land Exchange Lawsuit.” Agencies App. Vol. I at 176. The district court also held there was no new evidence that would change the court‘s analysis.
As to the NEPA claims, the district court noted its 2017 holding that the environmental analysis of the EIS was faulty because it was limited to the indirect effects of the proposal development, which in the court‘s determination was contrary to
With respect to the claims under the ESA, the district court concluded that the USFS made the same error in the 2019 ROD that it did in the 2015 ROD by consulting with the FWS regarding LMJV‘s proposed development under § 7, which concerns the impacts of federal agency action, rather than directing LMJV to consult with the FWS under the more onerous § 10, in determining whether LMJV‘s development plan would result in a take of the Canada lynx. The district court concluded that, based on prior litigation and its analysis of legislative history, LMJV should not be covered under a § 7 ITS. Finally, the district court noted that the Agencies’ internal deliberations concerning whether § 7 or § 10 applies, particularly statements alleging that § 7 was not the obvious pathway for this action, further demonstrated the USFS‘s improper reliance on that section. The district court concluded that vacatur and remand was the appropriate remedy.
II. DISCUSSION
We start by assessing whether we have jurisdiction over this appeal and whether the Conservation Groups have standing to pursue it. Deciding these questions in the affirmative, we then assess the district court‘s application of the law of the case doctrine. We conclude the district court erroneously applied that doctrine. Finally, we assess the Conservation Groups’ APA challenge to the 2019 ROD and 2018 BiOp under ANILCA, NEPA, and the ESA, ultimately affirming the USFS‘s grant of the right-of-way and the Agencies’ extension of the § 7 ITS to cover the LMJV Parcel.
A. Jurisdiction
We begin, as we must, by assessing our jurisdiction over this appeal. “[J]urisdiction is a threshold question which an appellate court must resolve before addressing the merits of the matter before it.” Timpanogos Tribe v. Conway, 286 F.3d 1195, 1201 (10th Cir. 2002). “Absent a specific statutory grant of jurisdiction over a particular type of dispute, we exercise jurisdiction over final decisions of the federal district courts pursuant to
Typically, we do not have jurisdiction over an APA action which a district court has remanded to the agency for further proceedings. However, this rule is subject to exception. The Agencies assert that this court has jurisdiction under the practical finality rule, despite the district court‘s vacatur and remand to the agency. They cite in support of this position the importance and urgency of the issue, the fact that the deciding agency is filing the appeal, and the application of our balancing test.3 We agree and exercise jurisdiction
1. Administrative Remand Rule
“The remand by a district court to an administrative agency for further proceedings is ordinarily not appealable because it is not a final decision.” Bender v. Clark, 744 F.2d 1424, 1426–27 (10th Cir. 1984); see also N.C. Fisheries Ass‘n, Inc. v. Gutierrez, 550 F.3d 16, 19 (D.C. Cir. 2008) (“It is black letter law that a district court‘s remand order is not normally ‘final’ for purposes of appeal under
In determining whether the administrative remand rule applies, we must first decide if a remand occurred, meaning “[we] must consider the nature of the agency action as well as the nature of the district court‘s order.” New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 697 (10th Cir. 2009). Normally, a remand “occurs when an agency has acted in an adjudicative capacity,” meaning “[a] party to the adjudication appeals the agency‘s determination to a district court, and the district court instructs the agency to conduct further proceedings.” Id. Here, the district court explicitly remanded the action to the agency to conduct further proceedings, leaving us to decide only whether the agency action was adjudicative in nature.
Much like the USFS‘s 2015 ROD, which we held was adjudicative because it impacted the rights of LMJV, the USFS‘s 2019 ROD was adjudicative. See Rocky Mountain Wild, 2018 WL 11225766, at *4. Agency action that “settles the rights of specific parties,’ like permitting or ‘making a determination on a particular entity‘s lease application,’ is adjudicative.” Id. (quoting W. Energy All., 709 F.3d at 1047–48). Here, the USFS made a determination on an application—the inholding access application—and settled the rights of a specific party, LMJV. Furthermore, the proposed right-of-way would connect a private plot of land to a public roadway, rather than, for instance, provide public access to a broader section of USFS land. Accordingly,
2. Practical Finality Rule
Because the district court‘s order is subject to the administrative remand rule, the next step is to determine whether an exception to the rule applies. “We have recognized three exceptions to the administrative remand rule: (1) the collateral order doctrine, (2) the practical finality rule, and (3) the pendent appellate jurisdiction doctrine.” C.W. by & through B.W. v. Denver Cnty. Sch. Dist. No. 1, 994 F.3d 1215, 1221 (10th Cir. 2021). The Agencies assert that this court has jurisdiction over the district court‘s order under the practical finality rule. We agree.
“A district court‘s remand is practically final when it is urgent that an issue be decided because it is important, serious, and unsettled.” Zen Magnets, LLC v. Consumer Prod. Safety Comm‘n, 968 F.3d 1156, 1164–65 (10th Cir. 2020). “In practice, we have applied the practical finality rule to review important legal questions which a remand may make effectively unreviewable.” C.W., 994 F.3d at 1221 (internal quotation marks omitted). “To decide whether a decision is practically final, we ask whether the danger of injustice by delaying appellate review outweighs
“Practical finality is particularly appropriate when an agency may be foreclosed from appellate review,” id., because “once [an] agency completes its remand proceedings, the government, unlike a private litigant, typically has no avenue for obtaining judicial review of its own administrative decisions,” C.W., 994 F.3d at 1221 (internal quotation mаrks omitted). This stems from the fact that “[a]fter a district court remands to an agency for further proceedings, the agency must conform its proceedings to the remand order.” Id. “Consequently, if a district court remands an issue to an administrative agency and essentially instructs the agency to rule in favor of the plaintiff, the agency may well be foreclosed from again appealing the district court‘s determination at any later stage of the proceeding.” Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1262 (10th Cir. 2001) (internal quotation marks omitted); see, e.g., Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1152 (10th Cir. 2019) (concluding that a remand order was appealable under the practical finality rule when it prevented the Bureau of Indian Affairs from placing a parcel of land into trust for the benefit of a band of Cherokee Indians
without the consent of the Cherokee Nation, thereby blocking any further agency action without the Cherokee Nation‘s consent); Ausmus v. Perdue, 908 F.3d 1248, 1252 (10th Cir. 2018) (applying the practical finality rule when an agency was directed to implement a particular outcome rather than recommence a proceeding).
“[W]e employ a two-pronged test for applying the practical finality rule: the issue must be ‘important’ and it must be ‘urgent.‘” W. Energy All., 709 F.3d at 1049–50. “If the test is met, we then follow a balancing approach[,]” with the “critical inquiry” being “whether the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review.” Id. at 1050 (internal quotation marks omitted). “As a general matter, if additional proceedings in a district court are contemplated after remand to an agency [for example, when counts of a complaint remain pending before the district court,] we think the better rule is for the government to wait until a final judgment is entered.” Miami Tribe of Okla. v. United States, 656 F.3d 1129, 1140 (10th Cir. 2011).
Here, both the importance prong and urgency prong are readily met because the Agencies would be required to comply with the district court‘s analysis of important issues under
We also conclude “the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review.” See Miami Tribe of Okla., 656 F.3d at 1140 (quotation marks omitted). First, there are no other aspects of this litigation pending before the district court. See id. Second, the district court‘s actions have precluded the Agencies from providing LMJV access to the Parcel, contrary to this court‘s order in 2018 stating, “Whether USFS ultimately completes the land exchange, builds an access road across USFS land, or takes some other alternative, it is not free to ‘do nothing at all‘; it must take some action to provide LMJV with access.” Rocky Mountain Wild, 2018 WL 11225766, at *4. Where LMJV and its predecessor have been attempting to obtain access to the Parcel since 1987, this is an urgent and important issue. See Trout Unlimited v. U.S. Dep‘t of Agric., 441 F.3d 1214, 1219 (10th Cir. 2006) (jurisdiction contrary to the administrative remand rule may be appropriate when “delay in review . . . would likely result in further disputes and litigation, confusion and danger of injustice” (quotation marks omitted)).
The Conservation Groups point to the Agencies’ failure to appeal the district court‘s 2017 order and their alleged rebuke of the district court‘s reasoning as precluding their ability to appeal the district court‘s 2022 order. But as the Agencies correctly explain in reply, this response does not engage with the practical finality exception to the administrative remand rule. Instead, the Conservation Groups conflate the law of the case doctrine with the scope of our subject matter jurisdiсtion. The Conservation Groups also argue that allowing this appeal to proceed would “improperly alter the finality of the [government‘s] decision [not to approve the Agencies desire to appeal the 2017 district court decision] that obligated the Agencies to conform with [that] order on remand.” Response Br. at 74. However, this argument concerns the merits of the appeal, rather than our jurisdiction. This is because
We conclude that the danger of injustice in delaying appellate review here outweighs the costs of piecemeal review. Accordingly, we have jurisdiction over this appeal under the practical finality rule.
3. Standing
While neither the Agencies nor LMJV contest standing, the Conservation Groups reassert their standing arguments before this court.5 “Standing . . . raises jurisdictional questions and we are required to consider the issue sua sponte to ensure that there is an Article III case or controversy before us.” Rector v. City & Cnty. of Denver, 348 F.3d 935, 942 (10th Cir. 2003) (internal quotation marks omitted). All four Conservation Groups have standing to proceed with this litigation.
Article III of the United States Constitution limits federal jurisdiction to cases and controversies.
When it comes to environmental litigation, if the alleged “harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). “In the context of a NEPA claim, the harm itself need not be immediate, as the federal project complained of may not affect the concrete
Several affidavits before us demonstrate standing for three of the Conservation Groups. For one, Jimbo Buickerood, a member and employee of the San Juan Citizens Alliance, discusses his frequent trips to Wolf Creek Pass for recreation and how the LMJV development would impact his recreational, spiritual, and esthetic enjoyment of the area. Christine Canaly, the Director of the San Luis Valley Ecosystem Council, discusses how the organization‘s members rely on groundwater, which will be impacted by the development, and also attests that members recreate in the surrounding National Forest. Tehri Parker, the Executive Director of RMW, and Paige Singer, a Conservation Biologist and Geographic Information Systems Specialist for RMW, frequently recreate in the area surrounding the site of the proposed development, and Ms. Singer personally and academically observes the Canada lynx and is therefore concerned about how the project will impact them. There is no dispute that the right-of-way would change traffic patterns surrounding the Wolf Creek Ski Area and would also lead to new development activities, changing the esthetic nature of the Rio Grande National Forest and affecting the Canada lynx population in the area. Each affidavit shows that at least one member of the aforementioned organizations has recreational and esthetic interests which would be affected if the right-of-way grant proceeds. These affidavits support standing for the San Juan Citizens Alliance, the San Luis Valley Ecosystem Council, and RMW.
There are no affidavits supporting Wilderness Workshop‘s standing. So long as it does not seek any further relief than the other Conservation Groups who have independently established standing, however, it may remain a party to the litigation. See Town of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017) (“For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right.” (emphasis added)). Wilderness Workshop does not seek any relief in addition to that sought by the other Conservation Groups. Accordingly, the Conservation Groups all have standing to litigate this appeal.
B. Law of the Case Doctrine
We next review the propriety of the district court‘s reliance on the law of the case doctrine in remanding the 2019 ROD to the USFS. The district court reasoned the law of the case doctrine controls the outcome here because the 2019 ROD relied on the same “flawed” EIS as the 2015 ROD, and the ESA analysis underlying the 2018 BiOp is similar to the ESA analysis underlying the 2013 BiOp. But the district court overlooked the fact that the 2019 ROD considered a new alternative, the underlying reasoning of which transcends the scope of the district court‘s holdings in 2017. Accordingly, the law of the case doctrine is inapplicable to this matter.6
We first hold that the Agencies approved a significantly different action alternative here in the form of a right-of-way, rather than a land exchange. To be sure, they relied on the same EIS that was challenged before the district court in 2017, but they did so after preparing an SIR, which determined that a new EIS was not warranted because any “changed conditions and new information would not present a significantly different picture of the environmental effects.” Agencies App. Vol. III at 615. Further, the Agencies included in the 2019 ROD a new BiOp that noted changes in the relevant data since it issued its land exchange BiOp in 2013.
The Supreme Court has explained that district courts are permitted to remand agency actions to either provide “a fuller explanation of the agency‘s reasoning at the time of the agency action” or to take new agency action. Biden v. Texas, 597 U.S. 785, 808 (2022) (quoting Dep‘t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1907 (2020)). For instance, in Biden, when the Secretary of Homeland Security was seeking to end the Migrant Protection Protocols program, the Secretary issued a new memorandum on remand that officially superseded the memorandum a district court had vacated and
The district court acknowledged that the USFS undertook a new agency action but took issue with its continued reliance on the same EIS. The district court‘s analysis overlooks that “[i]t is black-letter law that an agency that takes superseding action on remand is entitled to ‘reexamine[] the problem, recast its rationale and reach[] the same result.‘” Biden, 597 U.S. at 813 (second and third alterations in original) (quoting Sec. & Exch. Comm‘n v. Chenery Corp., 332 U.S. 194, 196 (1947)). The USFS abandoned the land exchange proposal and instead considered a right-of-way easement to secure access to the LMJV Parcel. In doing so, the USFS reexamined the problem in light of the district court‘s 2017 decision and reached a different conclusion about the preferred alternative. Although it relied on a similar agency record, the USFS completed an SIR that concluded a new EIS was not required, obtained a new BiOp examining the impacts of the right-of-way alternative on the endangered lynx, and entertained additional public comment.
Furthermore, the district court‘s analysis overlooks the narrow scope of the district court‘s review of the EIS in its 2017 order. There, the district court held there was no basis for the USFS to conclude in its EIS and 2015 ROD “that the Forest Service had no power or jurisdiction to limit or regulate development on the federal lands being conveyed to LMJV in the present exchange.” Rocky Mountain Wild, 2017 WL 6350384, at *11. The district court concluded such authority could be found in the USFS‘s Scenic Easement on the Parcel because it gave the USFS “actual power to control development.” Id. But the district court reached that conclusion based on its reading of the land exchange regulations as requiring agencies to reserve certain rights to ensure the public interest is protected. Id. Critically, a core failing of the land exchange according to the district court was its failure to extend the Scenic Easement to the land to be conveyed under the 2015 ROD. Id. The district court highlighted that “neither the [EIS] nor the ROD provide the reasoning or public interest analysis for failing to consider conditioning the land exchange on extension of the Scenic Easement to the federal lands being conveyed, or taking other restrictive steps.” Id. These statements taken together show that the district court‘s 2017 decision and underlying reasoning regarding the EIS‘s and the 2015 ROD‘s NEPA analysis primarily concern the unique challenges presented by a land exchange, rather than a right-of-way.
The district court‘s application of the law of the case doctrine is further undermined because the analysis in thе 2018 BiOp used in the 2019 ROD is distinguishable from the analysis in the 2013 BiOp incorporated into the 2015 ROD. The 2018 BiOp relies on different metrics than the 2013 BiOp and, unlike the 2013 BiOp, did not predicate its conclusion on LMJV‘s conservation proposals. Critically, the district court in 2017 rejected the USFS‘s analysis of the ESA impacts because it was based only on the proposed conservation measures in the 2013 BiOp. Id. at *13–*16. The ESA analysis challenged in this lawsuit is different than that advanced in the
Accordingly, the district court erred in its application of the law of the case doctrine to this matter.
C. APA Standard of Review
We review a district court‘s resolution of APA claims de novo, applying the same deferential standard toward the agency‘s decisions that the district court applies. Biodiversity Conserv. All. v. Jiron, 762 F.3d 1036, 1059 (10th Cir. 2014); Utah Env‘t Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). We will not overturn an agency‘s decision “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law.‘” Utah Env‘t Cong., 443 F.3d at 739 (quoting
“[T]he burden is on the petitioner to demonstrate that the action is arbitrary and capricious.” Wyoming v. U.S. Dep‘t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011) (quotation marks omitted). To avoid a finding that an agency action is arbitrary and capricious, “the agency cannot (1) rely on factors deemed irrelevant by Congress; (2) fail to consider important aspects of [the] problem; (3) present an explanation that is either implausible or contrary to the evidence or (4) reach a decision that is not supported by substantial evidence in the [administrative] record.” Am. Petroleum Inst. v. U.S. Dep‘t of Interior, 81 F.4th 1048, 1058 (10th Cir. 2023) (internal quotation marks omitted) (alterations in original). “We do nоt ‘substitute [our] judgment for that of the agency,’ and we do not ‘supply a reasoned basis for the agency‘s action that the agency itself has not given.‘” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793–94 (10th Cir. 2010) (alteration in original) (quoting Motor Vehicle Mfrs. Ass‘n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Nevertheless, “we also accord agency action a presumption of validity.” Wyoming, 661 F.3d at 1227 (internal quotation marks omitted). “If the agency‘s ‘path may reasonably be discerned’ from its explanation, we will not disturb the action even when the explanation is not entirely clear.” WildEarth Guardians v. U.S. E.P.A., 770 F.3d 919, 927 (10th Cir. 2014) (quoting Alaska Dep‘t of Env‘t Conservation v. E.P.A., 540 U.S. 461, 497 (2004)).
D. ANILCA
In our merits review of this matter, we first address the Conservation Groups’ challenge to the USFS‘s understanding of ANILCA,
“Our primary task in construing statutes is to determine congressional intent, using traditional tools of statutory interpretation.” S. Furniture Leasing, Inc. v. YRC, Inc., 989 F.3d 1141, 1146 (10th Cir. 2021) (quotation marks omitted). “When interpreting a statute, we begin by examining the statute‘s plain language, and if the statutory language is clear, our analysis ordinarily ends.” Seale v. Peacock, 32 F.4th 1011, 1024 (10th Cir. 2022) (internal quotation marks omitted). “[Tools of statutory interpretation] include examination of the statute‘s text, structure, purpose, history, and relationship to other statutes.” Am. Fed‘n of Gov‘t Emps., Loc. 1592 v. Fed. Lab. Rels. Auth., 836 F.3d 1291, 1295 (10th Cir. 2016). When a term is undefined in a statute, we must look to its ordinary meaning. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). “Dictionary definitions are useful touchstones to determine the ‘ordinary meaning’ of an undefined statutory term.” In re Mallo, 774 F.3d 1313, 1321 (10th Cir. 2014).
Section 3210(a) of ANILCA states in relevant part:
Reasonable use and enjoyment of land within boundaries of National Forest System
Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure tо the owner the reasonable use and enjoyment thereof[.] . . . .
The Conservation Groups argue that the plain language of the statute contains no express reference to lands outside of Alaska. To the contrary, LMJV and the Agencies contend the statute contains no language expressly limiting the section‘s
The Conservation Groups counter, however, that § 3210(a) of ANILCA is expressly limited to National Forest Service Land in Alaska because it is part of a broader statutory framework titled the Alaska National Interest Lands Conservation Act. They also assert that the Supreme Court has limited applicability of other sections of ANILCA to Alaska, and that the Congressional Statement of Purpose makes repeated mention of preserving land, water, and the economic and subsistence needs of Alaska.
To be sure, the parties have raised competing interpretations concerning the reach of ANILCA. We need not resolve this issue in the first instance, however, because we are bound by circuit precedent. In 1994, we held in United States v. Jenks that “[§] 3210(a) of ANILCA guarantees to inholders a threshold ‘right of access to their lands subject to reasonable regulation [under FLPMA] by . . . the Secretary of Agriculture in the case of national forest [lands].‘” 22 F.3d 1513, 1516 (10th Cir. 1994) (second and third alterations in original) (quoting Adams v. United States, 3 F.3d 1254, 1258–59 (9th Cir. 1993)). Relying upon post-enactment legislative history discussed in a 1980 House of Representatives report and adopting the view of the Ninth Circuit, we concluded that “[§] 3210(a) of ANILCA applies to all National Forest System lands.” Id. at 1516 n.3. There, we held ANILCA guaranteed access to the defendant‘s inholdings located in Apache National Forest in Catron County, New Mexico. Id. at 1516. Thus, we have binding precedent interpreting ANILCA‘s reach as nationwide.
The Conservation Groups attempt to overcome this hurdle by pointing to the Supreme Court‘s disfavor of post-enactment legislative history. But “[w]e cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” United States v. Manzanares, 956 F.3d 1220, 1225 (10th Cir. 2020) (quotation marks omitted) (alteration in original).
It is true the Supreme Court disfavors reliance on post-enactment legislative history, Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011), and has asserted a preference for plain language interpretation when possible, Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 673–75 (2020). But the Supreme Court has never explicitly forbidden reliance upon post-enactment legislative history. Nor has the Supreme Court held that the applicability of § 3210(a) is limited to Alaska. While the Court has explained, looking at ANILCA as a whole, “the Act contemplates the possibility that all the
E. NEPA
We next address the Conservation Groups’ challenge to the 2019 ROD under NEPA. They claim that the 2019 ROD improperly fails to classify LMJV‘s development proposal as part of a federal action, while also alternatively arguing that the 2019 ROD erred by not considering the development proposal as a direct effect of the federal action. They also assert that the USFS improperly declined to work with cooperating agencies in preparing the underlying EIS. Upon review of these arguments and of the agency record, we conclude there are no violations of NEPA warranting vacatur.9
1. NEPA Overview
NEPA is a federal environmental law that requires agencies to consider the environmental impacts of their actions as part of the decision-making process and to inform the public about these impacts. Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). “NEPA does not create a cause of action, so NEPA challenges are brought under the APA.” Dine Citizens Against Ruining Our Env‘t v. Haaland, 59 F.4th 1016, 1029 (10th Cir. 2023). NEPA does not require any particular outcome, and it does not require agencies to give special weight to environmental concerns. Citizens’ Comm. to Save Our Canyons, 297 F.3d at 1022. “[I]t requires only that the agency take a ‘hard look’ at the environmental consequences before taking a major action.” Id. (quotation marks omitted). To that end, NEPA requires agencies to prepare an EIS for “proposals for . . . major Federal actions significantly affecting the quality of the
In taking a hard look at the environmental consequences of a proposed action, the agencies must consider the direct, indirect, and cumulative environmental impacts of the action.
2. Direct and Indirect Effects
First, we review the Conservation Groups’ challenge to how the USFS categorized the effects of the right-of-way in the EIS and 2019 ROD. The Conservation Groups allege that the USFS acted arbitrarily and capriciously in categorizing the LMJV‘s proposed development as an indirect effect of the right-of-way, rather than a direct effect.11 We disagree, but nevertheless conclude that the Conservation Groups have failed to demonstrate prejudice from the alleged categorization error.
Under NEPA‘s implementing regulations, direct effects are those “caused by the action [that] occur at the same time and place,” and indirect effects are “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.”
Under the regulatory definitions, LMJV‘s proposed development is an indirect effect of the right-of-way. The development plans have yet to be set and are thus removed in time, excluding them from the definition of “direct effects.” But they are nevertheless foreseeable, thereby bringing them within the ambit of “indirect effects.” See
use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems,” which the regulations describe as characteristic of
But even assuming the Conservation Groups are correct that the develоpment should have been characterized as a direct effect of the right-of-way alternative, they fail to identify any harmful impact from that presumed mischaracterization. The Conservation Groups merely state that categorizing an effect as a direct effect properly informs the public of an immediate effect. They assert that “[c]orrect categorization . . . allows consistent comparison of effects across a reasonable range of alternatives that may result in differing temporal and spatial impacts.” Response Br. at 89. But the Conservation Groups do not explain what change in the analysis or conclusion would result if the USFS had categorized LMJV‘s development as a direct effect rather than an indirect effect. Nor do they identify any harm caused by the USFS‘s alleged failure to categorize LMJV‘s development proposal as a direct effect. See Richardson, 565 F.3d at 704; WildEarth Guardians, 703 F.3d at 1183. Thus, the Conservation Groups have failed to meet their burden.
Our independent review of the record indicates that the USFS carefully considered the potential effects of developing the LMJV Parcel into a resort village. In the executive summary of the EIS, the USFS explained:
[I]n order to adequately disclose the range of indirect effects associated with private land development that could occur as a result of Forest Service approval of either a land exchange or a road access corridor across [USFS] lands, a range of development concepts, including Low, Moderate and Maximum Density, has been evaluated for each Action Alternative.
LMJV App. Vol. IX at 2319. The USFS then extensively analyzed the environmental impacts of low, moderate, and maximum density development concepts for the LMJV Parcel. That analysis explicitly considered the impacts of each type of development on landscape disturbances, air quality, vegetation, and water flow, among other factors, and evaluated how the ultimate size of the development would interact with each оf the federal actions proposed. The Conservation Groups identify no support from the record, and we have located none, for the proposition that categorizing the effects of the LMJV development as indirect, even if erroneous, had any harmful impact on the USFS‘s NEPA review.
In sum, we see no basis in the record for concluding that the USFS mischaracterized the effects of the LMJV development, let alone that any alleged miscategorization undermined the purpose of NEPA.
3. Cooperating Agencies
The Conservation Groups also challenge the USFS‘s decision not to proceed with any cooperating agencies in developing the EIS. Under our precedent, this challenge is unreviewable.
NEPA‘s implementing regulations provide that, “[u]pon request of the lead agency, any other Federal agency which has jurisdiction by law shall be a cooperating agency.”
We have previously held that, when the USFS denies a request by a state to participate as a cooperating agency in the NEPA process under
4. Major Federal Action
Finally, the Conservation Groups argue that the EIS arbitrarily and capriciously failed to categorize LMJV‘s development as part of a major federal action, despite the district court‘s prior questioning of the USFS on this issue and despite the alleged power the USFS retained when it exchanged land with LMJV‘s predecessor in
Under NEPA, “[w]e have defined major federal action as actions by the federal government . . . and nonfederal actions with effects that may be major and which are potentially subject to Federal control and responsibility.” Ross v. Fed. Highway Admin., 162 F.3d 1046, 1051 (10th Cir. 1998) (internal quotation marks omitted). “In effect, major federal action means that the federal government has actual power to control the project.” Id. (internal quotation marks omitted). We previously explained that nonfederal activities amount to “major federal action” in instances including “the filing of documents with a federal agency, when the filing is a necessary but insufficient step to gain eligibility to apply for federal funds for a nonfederal project, and an agency‘s approval of an Indian tribe‘s lease of its lands to nonfederal lessees.” Sierra Club v. Hodel, 848 F.2d 1068, 1089-90 (10th Cir. 1988), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). Conversely, we have held that a duty to ensure a local government does not exceed the bounds of a BLM right-of-way does not convert actions taken within the right-of-way into a federal action, unless there is, for example, a mandatory regulatory duty placed upon the agency to ensure the nonfederal actions do not produce environmental harms the agency is affirmatively responsible for preventing. Id. at 1090-91. We further suggested in Hodel that when federal control over an aspect of a nonfederal action is discretionary, it does not rise to the level of a major federal action. Id. at 1090.
When the USFS conveyed the ski village property in exchange for property formerly held by LMJV‘s predecessor, it retained a Scenic Easement over the LMJV Parcel that places esthetic limits and restrictions on the uses of the property. That Scenic Easement also requires the supervisor of the Rio Grande National Forest to approve any proposed development on the property. If the supervisor and LMJV cannot agree on the development plan after negotiation, the Scenic Easement anticipates they will engage in binding arbitration to resolve the dispute. The supervisor also retains discretion to waive enforcement of any portion of the Scenic Easеment.
The Conservation Groups allege that the Agencies erred by construing the definition of major federal action too narrowly, pointing to our decision in Ross. But the Conservation Groups read Ross too broadly. In Ross, we held that a road project is a major federal action when contemplated and funded by the federal government, even after federal funding is withdrawn at an advanced stage of the project. Ross, 162 F.3d at 1051-53. Here, we are faced with a proposed development on a privately owned parcel of land encumbered by a Scenic Easement. Importantly, no public funding has or will be provided for LMJV‘s use in development of the Parcel. Thus, while the Rio Grande National Forest retains the right to object to LMJV‘s development plans, the government‘s involvement
As the Agencies accurately note, the supervisor‘s authority over the development of the Parcel is further limited by the scope of the oversight power: the supervisor may only provide, within a thirty-day period of receiving a development proposal, “all reasonable objections which the Grantee has to such plans on the grounds of non-compliance with the terms of this [Scenic Easement].” Agencies App. Vol. I at 238. To the extent LMJV disagrees, the binding nature of arbitration limits the supervisor‘s power to dictate the parameters of the development. And the supervisor may waive any of the Scenic Easement restrictions. This framework suggests that the supervisor‘s approval of LMJV‘s development plans is more discretionary than mandatory, thereby disqualifying the approval process from treatment as a major federal action. See Hodel, 848 F.2d at 1090.
Nevertheless, it is the challengers’ burden to identify how an error has harmed them. Here, the Conservation Groups neglect to explain how the failure to categorize LMJV‘s development as part of a major federal action caused them harm. That omission proves detrimental to their argument, particularly where the EIS extensively reviewed—for three levels of potential density—the development proposal‘s impacts on the environment.14 See, e.g., Eagle Cnty., Colo. v. Surface Transp. Bd., 82 F.4th 1152, 1176 (D.C. Cir. 2023) (“Even if the [agency] erroneously characterized the impacts related to increased oil production as cumulative impacts, Petitioners identify no way in which this decision materially affected the Board‘s analysis under NEPA.“); Richardson, 565 F.3d at 704; WildEarth Guardians, 703 F.3d at 1183 (requiring a show of prejudice from an alleged NEPA violation). Thus, although the Agencies did not consider the LMJV‘s future development of the ski village as a major federal action, it considered the impact of that development as part of its assessment of the environmental effects of the right-of-way. The Conservation Groups offer no explanation as to how the analysis would have been different if the Agencies had instead characterized the LMJV development itself as a major federal action.
In sum, the USFS did not violate NEPA in preparing the EIS or the 2019 ROD. We accordingly affirm the 2019 ROD under NEPA.
F. ESA
Finally, we address the Conservation Groups’ challenge to the 2018 BiOp and accompanying ITS under the ESA. “[I]n examining whether the [FWS‘s] actions violate the ESA, we rely on the standards
1. ESA Overview
The ESA, enacted in 1973, provides protection to endangered and threatened species.
Initially, the ESA lacked a method by which incidental takes of endangered species could be authorized. Congress addressed this issue in the Endangered Species Act Amendments of 1982. Pub. L. No. 97-304, §§ 4, 6, 96 Stat. 1411, 1147-20, 1422-25. Once a species is listed and a critical habitat is designated, federal agencies are required under § 7 of the ESA to,
in consultation with and with the assistance of the Secretаry, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical.
A BiOp “is a written statement determining whether the proposed action ‘is likely to jeopardize the continued existence of listed species.‘” Id. (quoting
In 1982, Congress also amended the ESA to add § 10, a provision by which the state or private parties can request an incidental take permit (“ITP“) for non-federal activities. Endangered Species Act Amendmеnts of 1982, § 6; H.R. Rep. No. 97-567, at 31 (1982); see also WildEarth Guardians v. U.S. Fish & Wildlife Serv., 622 F. Supp. 2d 1155 (D. Utah 2009) (affirming § 10 ITPs issued to a Utah municipality and Indian nation). Section 10 allows the FWS to grant an ITP to those parties carrying out an otherwise lawful activity which may result in the take of an endangered species within the United States, so long as the take is incidental to the action, rather than the purpose of the action.
face requirements in addition to those imposed on applicants for a § 7 ITS. For example, a § 10 ITP requires applicants to submit a detailed conservation plan, and mandates that the FWS open the permit application and related conservation plan to public comment before issuing the permit, with the permit subject to revocation if the applicant does not comply with its terms and conditions.
Nothing in § 10 indicates any intent to limit the reach of § 7. Rather, § 10 provides a method for obtaining an ITP on projects lacking any federal nexus. We now consider which section of the ESA governs the issuance of a take permit here.
2. Propriety of § 7 Analysis
The Conservation Groups challenge the Agencies’ decision to include LMJV‘s proposed development within the scope of its § 7 review for the right-of-way. Under the plain language of the ESA and relevant authorities, we conclude the Agencies committed no legal error by extending the ITS in the 2018 BiOp to cover LMJV‘s proposed development.
The FWS declared in its 2018 BiOp that, although the USFS does not have jurisdiction over the LMJV development, the FWS would extend the ITS for the Canada lynx to cover the LMJV development, conditioned upon LMJV following “the Reasonable and Prudent Measures and Terms and Conditions [therein].” Agencies App. Vol. III at 722. The Conservation Groups question the propriety of the Agencies’ inclusion of LMJV‘s development within the scope of a § 7 consultation, rather than requiring LMJV to undergo a separate § 10 consultation.
“Our primary task in construing statutes is to determine congressional intent, using traditional tools of statutory interpretation.” S. Furniture Leasing, Inc., 989 F.3d at 1146 (quotation marks omitted). “When interpreting a statute, we begin by examining the statute‘s plain language, and if the statutory language is clеar, our analysis ordinarily ends.” Seale, 32 F.4th at 1024 (internal quotation marks omitted). “[Tools of statutory interpretation] include examination of the statute‘s text, structure,
Recall that under § 7 of the ESA, “[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species . . . .”
the Secretary concludes that ... the taking of an endangered species or a threatened species incidental to the agency action will not violate [subsection (a)(2)] ... the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that—(i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, ... and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both.
The Conservation Groups assert that, by disavowing federal power over development of the LMJV Parcel,16 the Agencies have removed all grounds for expanding a § 7 ITS to a non-federally controlled property. But § 7 not only provides that where any action “authorized” by the agency is “likely to jeopardize the continued existence of any endangered species or threatened species,” the Secretary shall suggest reasonable and prudent alternatives that “can be taken by the Federal agency or applicant in implementing the agency action.”
suggests congressional intent to permit broad application of the ITS regime, thereby allowing FWS to impose conservation measures controlling the impacts on an endangered species caused by development of a property made accessible by the right-of-way.
The Fifth Circuit reached the same conclusion regarding the broad reach of a § 7 analysis in a decision instructive to the present dispute. In National Wildlife Federation v. Coleman, 529 F.2d 359 (5th Cir. 1976), conservation groups sought to enjoin construction of a section of interstate highway due to its impact on the endangered Sandhill Crane. The district court dismissed the action and the conservation
Although Coleman was decided before adoption of § 10 of the ESA or the creаtion of the § 7 ITS regime, its interpretation of the reach of § 7 has been cited favorably by this court after the 1982 amendments. Specifically, in Riverside Irrigation District v. Andrews, we explained that the Army Corps of Engineers:
is required, under both the Clean Water Act and the Endangered Species Act, to consider the environmental impact of the discharge that it is authorizing. To require it to ignore the indirect effects that result from its actions would be to require it to wear blinders that Congress has not chosen to impose. The fact that the reduction in water does not result “from direct federal action does not lessen the [agency‘s] duty under § 7 [of the Endangered Species Act].”
758 F.2d 508, 512 (10th Cir. 1985) (second alteration in original; emphasis added) (quoting Coleman, 529 F.2d at 374).
Thus, the plain language of § 7 and our own precedent supports consideration of indirect effects of federal action, including future development of lands rendered accessible by the agency action.17 Here, the Agencies have consistently treated the future development of the LMJV Parcel as an indirect effect of the agency action under both NEPA and the ESA. As such, the FWS was required to consider the impact of the development of the LMJV Parcel on the lynx as part of its § 7 analysis.
Additionally, without § 7, the Agencies would have no ability to impose conservation measures on LMJV‘s development of the Parcel. There is no affirmative requirement that LMJV seek a § 10 permit. See Defs. of Wildlife v. Bernal, 204 F.3d 920, 927 (9th Cir. 2000). And as the 2018 BiOp explains and supports with scientific literature, the take of lynx due to habitat modifications is nearly impossible to calculate or to detect. The 2018 BiOp notes that lynx will avoid the development activities, but that the development activities will nevertheless result in habitat loss. If LMJV is not placed under an affirmative duty to undertake conservation measures as part of granting the right-of-way, LMJV may ultimately take lynx during development without consequence given the difficulty of determining whether there has been any
Critically, the conservation measures are not static. Should the Agencies conclude at any point going forward that the take of lynx resulting from the right-of-way easement and the LMJV development exceeds that permitted under the ITS, the authorized actions harm the lynx in a way not previously considered, or new information reveals effects on the lynx not already considered in the 2018 BiOp, the FWS is required to reinitiate § 7 consultation. See
In sum, the Agencies properly considered the right-of-way and the LMJV development under § 7 of the ESA and issued an ITS covering both the direct and incidental effects of the federal action on the lynx. We affirm the Agencies’ decision to include the LMJV Parcel in the scope of the § 7 take analysis.19
3. Other Conclusions of the 2018 BiOp and ITS
The Conservation Groups also challenge several of the conclusions reached in the 2018 BiOp and their application to the accompanying ITS as arbitrary and capricious. Specifically, they allege that the FWS did not rely on the best available science in reaching its take conclusions and used improper surrogates for determining take projections.20 The
First, the Conservation Groups allege that the 2018 BiOp‘s take projection is arbitrary and capricious because it fails to “account for take resulting from a wide range of harms emanating from village construction, operations, water depletions, population influx, and other traffic related impacts.” Response Br. at 98. According to the Conservation Groups, additional taking of lynx will result from significant habitat modification or degradation in the development area, and the FWS arbitrarily and capriciously failed to factor these impacts into its take analysis. Our review of the 2018 BiOp does not support the Conservation Groups’ argument.
The Agencies concluded that the development of the ski village is the reason for the right-of-way and thus, development of the Parcel is an obvious, indirect effect of the agency action. See Agencies App. Vol. III at 714 (“[D]evelopment of the private lands [the Parcel] is reasonably certain to occur because the Applicant specifically requested access across the [Rio Grande National Forest] for development purposes.“). Accordingly, the 2018 BiOp analyzed the indirect effects of the right-of-way by reviewing LMJV‘s development proposals and then assuming that any of the three possible levels of density for the LMJV development would render the entire Parcel “non-functional for lynx.”
The Village constitutes a base area development, and lynx are likely to avoid this base area development, rather than pass through it. . . . The Applicant anticipates a development timeframe of 30 years (i.e. full buildout completed in year 2051). We anticipate a steady reduction in lynx use of the private lands caused by removal of forested habitat for construction of infrastructure, facilities, and housing, and as human presence and activity increases.
Then, after reviewing pertinent scientific literature on the subject, the 2018 BiOp concludes “it is not possible to quantify the number of lynx that become susceptible to habitat loss and degradation,” whereas “[q]uantifying the anticipated loss of lynx that may be injured or killed from a vehicle collision is relatively straight forward.”
Next, the Conservation Groups target the FWS‘s rationale for reducing the take projection of Canada lynx in the 2018 BiOp compared to the 2013 BiOp. The 2018 BiOp concluded that granting the right-of-way to the LMJV parcel would result in the taking of one lynx every twenty years through hit-by-vehicle mortality. The 2018 BiOp acknowledged that this is a change from the 2013 BiOp‘s projection of the taking of one lynx every six years. The Conservation Groups argue the 2018 BiOp is not based on the best available science because the BiOp notes that “[d]iscovery or detection of lynx injury or mortality attributed to lynx-vehicle collision is very unlikely if the animal wanders away from the highway before it dies,” but allegedly does not incorporate this reasoning into its conclusion. Response Br. at 99. But the FWS explains that because of the difficulty in detecting the mortality associated with lynx-vehicle collisions and with functional habitat loss, it relies upon traffic volume estimates “as a detectible and measurable surrogate to quantify take.” Agencies App. Vol. III at 723. The FWS also relies on several studies indicating that, as the traffic volume on a roadway increases to approximately 5,000 vehicles per day, the risk to lynx increases, but the risk then decreases once the roadway surpasses 5,000 vehicles per day, because the higher traffic volume acts as a barrier and animals cease attempting to cross the roadway. The FWS‘s rationale for using this surrogate measure is well explained and dоes not overlook evidence on the record or fail to consider important aspects of this issue. The Conservation Groups therefore have not met their burden to show that the lynx-vehicle collision calculation is arbitrary and capricious. See Wyoming, 661 F.3d at 1227; Am. Petroleum Inst., 81 F.4th at 1058.
Finally, the Conservation Groups claim that the reduction in the take projection of Canada lynx from one lynx every six years in the 2013 BiOp to one lynx every twenty years in the 2018 BiOp does not reflect the “best available science.” Response Br. at 112. But the FWS thoroughly explains that this change in metric is the result of changes in the surrounding habitat due to forestry-related changes and updates in projected traffic based on new data from the state. The Conservation Groups present no other scientific evidence for their contention that the 2018 BiOp is inaccurate. Thus, they have failed to undermine the presumption of validity afforded to the FWS‘s action, or to establish that the FWS‘s analysis is arbitrary and capricious.
In sum, the FWS‘s statements are not contrary to the evidence before it, unsupported by substantial evidence, without consideration of important aspects of the
III. CONCLUSION
We VACATE the district court‘s order and AFFIRM the 2018 BiOp and 2019 ROD.
APPENDIX: GLOSSARY OF ACRONYMS
| ANILCA | Alaska National Interest Lands Conservation Act |
| APA | Administrative Procedure Act |
| BiOp | Biological Opinion |
| BLM | Bureau of Land Management |
| EIS | Environmental Impact Statement |
| ESA | Endangered Species Act |
| FWS | U.S. Fish and Wildlife Service |
| ITP | Incidental Take Permit |
| ITS | Incidental Take Statement |
| LMJV | Leavell-McCombs Joint Venture |
| NEPA | National Environmental Policy Act |
| RMW | Rocky Mountain Wild |
| ROD | Record of Decision |
| SIR | Supplemental Information Report |
| USFS | U.S. Forest Service |
Rocky Mountain Wild v. Dallas, Nos. 22-1438, 22-1439
EID, Circuit Judge, concurring:
I agree that we must resolve this appeal as described in the Court‘s opinion because of how the parties litigated this case. I therefore join the Court‘s opinion in full. However, I write separately to clarify that for the purposes of this case we assume, but cannot here decide, that provisions of law such as NEPA and the ESA may
Notes
We deny permission to file supplemental briefing. First,
[w]hen a district court fails to conduct the requisite plenary review and make necessary factual findings to support the affirmance of agency action, we may either vacate its order and remand for further proceedings or we may conduct the necessary review ourselves based on the same administrative record considered by the district court.
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). The parties have had sufficient notice and opportunity to address the merits of the Conservation Groups’ APA challenge and have indeed done so in this appeal. And to the extent that the Conservation Groups seek development of the record, “[j]udicial review of agency action is normally restricted to the administrative record.” Citizens for Alts. to Radioactive Dumping v. U.S. Dep‘t of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007). Indeed, “[i]t is only in extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record that we will consider extra-rеcord evidence.” Id. (internal quotation marks omitted). As we now explain, the Conservation Groups make no such showing.
Agencies App. Vol. III at 720. There is also no challenge here to the FWS‘s previous determination that no critical habitat areas for lynx exist in Colorado.[a]fter reviewing the current status of lynx, the environmental baseline for the action area, the direct and indirect effects of the proposed action, and the cumulative effects, it is the Service‘s biological opinion that the proposed action is not likely to jeopardize the continued existence of lynx within the contiguous United States distinct population segment.
Application of the Endangered Species Act to Proposals for Access to Non-Federal Lands Across Lands Administered by the Bureau of Land Management and the Forest Service, at 3 (Jan. 2003), available at https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5345337.pdf.An applicant has a right to receive an [ITS], with reasonable and prudent measures, if take is anticipated from the access itself. The applicant also may desire to include reasonable and prudent measures in the [ITS] for take resulting from activities on non-federal land. If the applicant requests an [ITS] for take resulting from activities on non-federal lands, the activities on non-federal land may be analyzed in the [§] 7 consultation for the access application. If the applicant chooses to be covered through the [§] 7 consultation, then the [ITS] can include reasonable and prudent measures related to activities on non-federal land. If the applicant abides by these measures, the applicant has ESA coverаge for any associated take.