WILLIAM J. MARTÍNEZ, District Judge.
This matter is before the Court on Plaintiffs' appeal seeking judicial review of (1) Defendants' decision in 2007 to expand the Uranium Lease Management Program ("ULMP") in southwestern Colorado; (2) Defendants' issuance of leases to uranium mining companies under the ULMP; and (3) Defendants' approvals of exploration or reclamation activities on certain lease tracts. The matter has been fully briefed (ECF No. 78, 82, 88), and Defendants have submitted the administrative record to the Court (ECF No. 19, 59). After carefully analyzing the briefs and the administrative record, the Court VACATES IN PART and REMANDS.
The Court has jurisdiction over this matter under 28 U.S.C. § 1331 (federal question), and 5 U.S.C. §§ 701-706 (the Administrative Procedure Act ("APA")).
This case involves potential uranium
This area in southwestern Colorado has been mined for uranium and vanadium under government programs in the past. Following World War II, in order to develop a domestic supply of uranium to meet the nation's defense needs, Congress authorized DOE's predecessor, the Atomic Energy Commission ("AEC"), to withdraw federal lands from public use and lease them to uranium mining companies. (AR002614.) By 1949, approximately 25,000 acres of land had been withdrawn for uranium mining. (Id.) The first leasing program, conducted between 1949 and 1962, produced more than 1.2 million pounds of uranium and 6.8 million pounds of vanadium, and generated $5.9 million in royalties to the federal government. (Id.)
In 1974, AEC initiated a second leasing program, the ULMP, involving 38 lease tracts on the same land at issue in this action, and five lease tracts in Utah and New Mexico. (AR002615.)
In 1994, the 30 remaining leases were allowed to expire, and DOE conducted an environmental assessment to determine whether to continue leasing under the ULMP. (Id.) In 1995, DOE issued a Final Environmental Assessment and Finding of No Significant Impact, resolving to continue the ULMP. (AR000001-109.) In 1996 and 1997, DOE entered into new lease agreements with 15 leaseholders. (AR002616.)
In June 2005, with the 13 active leases nearing expiration, DOE decided to conduct another environmental assessment of the ULMP, which is the assessment at issue in this administrative appeal. (AR000114-17.) At that time, DOE noted that "[a] recent increase in the demand for uranium and vanadium has prompted DOE to consider extending the program, and increasing the number of leases [back] to 38 for exploration and production." (AR000114.)
On August 10, 2005, DOE invited the Bureau of Land Management ("BLM"), the United States Fish and Wildlife Service ("FWS"), and the Colorado Department of Natural Resources to serve as cooperating agencies in the environmental assessment. (AR000154-59.) On August 10 and 11, 2005, DOE held public scoping meetings regarding the scope of the environmental assessment to be conducted. (AR000144-146, AR000161-175.)
In July 2006, DOE released its Draft Programmatic Environmental Assessment ("Draft EA"), which discussed three alternatives for managing the lease tracts, and the environmental effects of each. (AR001419-1574.) DOE also provided notice to the public and an opportunity to comment regarding the Draft EA. (AR001417-18.) Plaintiffs, among others, submitted comments regarding the Draft EA. (AR001625-2010.)
In July 2007, DOE released its Final Programmatic Environmental Assessment ("EA"). (AR002593-2789.) The EA evaluated three alternatives: (1) the Expanded Program Alternative (DOE's preferred alternative), in which the leasing program would be expanded to include 38 leases on all DOE-managed lands in the Uravan Mineral Belt; (2) the Existing Program Alternative, in which only the 13 active leases would be extended; and (3) the No Action Alternative, in which the current leases would be allowed to expire, and either DOE would continue to manage the 27,000 acres of land without leasing, or the land would be returned to the public domain under BLM's administrative control. (AR002618-20.)
As a result of the analysis in the EA, DOE issued a Finding of No Significant Impact ("FONSI"), determining to proceed with DOE's preferred alternative of expanding the ULMP to lease all 38 lease tracts. (AR002790-2800.) The FONSI concluded that "the proposed action does not constitute a major Federal action significantly affecting the quality of the human environment. Therefore, preparation of an environmental impact statement is not required." (AR002800.)
In late 2007, DOE reconfigured the lease tracts (mostly by combining certain lease tracts) so that there were a total of
During 2009, DOE approved exploration plans on five different lease tracts, and also approved a mine re-entry plan on one of those lease tracts. (AR003052-110, AR003172-213, AR003263-314, AR003457-548, AR003578-635.) DOE also approved Reclamation in-lieu-of Royalties ("RILOR") plans on 13 different lease tracts. (AR002832-43, AR002994-3020, AR003214-31, AR003344-69, AR003696-706, AR003738-62, AR003851-902, AR003932-60, AR004020-50, AR004109-30, AR004160-82, AR004212-28, AR004331-48.)
On July 31, 2008, Plaintiffs filed their Complaint in this action, raising six claims alleging NEPA violations by DOE in its decision to expand the ULMP. (ECF No. 1.) After some discovery, Plaintiffs filed a First Amended Complaint bringing 10 claims alleging violations of NEPA and ESA, and challenging DOE's decisions to expand the ULMP, to issue the 31 leases, and to approve the exploration and reclamation activities. (ECF No. 61.)
On May 3, 2011, Plaintiffs filed their Opening Brief, arguing that:
(A) DOE violated NEPA by:
(B) DOE violated ESA:
During June and July 2011, DOE also filed with the Court three notices regarding recent developments with the ULMP. On June 22, 2011, DOE notified the Court of the publication in the Federal Register of its Notice of Intent to Prepare a Programmatic Environmental Impact Statement for the U.S. Department of Energy Uranium Leasing Program ("NOI"). (ECF No. 83.) See also 76 Fed. Reg. 36,097-36,100 (June 21, 2011). The NOI states,
76 Fed. Reg. at 36,097. See also id. at 36,098, 36,099. (See also ECF No. 82, at 6.) Then, on July 11, 2011, DOE notified the Court that it had recently sent a letter to the lessees informing them that, inter alia, the EIS "is estimated to take from 12-15 months to complete" and that "[u]nfortunately, during that time period, DOE will be unable to approve any new ground disturbing activities on the lease tracts (i.e., approve any new lessee's exploration or mining plans)." (ECF No. 85 Ex. A.) Lastly, on July 25, 2011, DOE notified the Court of the publication in the Federal Register of its Notice of Public Scoping Meetings and Extension of Scoping Period for the U.S. Department of Energy Uranium Leasing Program Programmatic Environmental Impact Statement. (ECF No. 89.) See also 76 Fed. Reg. 43,678 (July 21, 2011).
Before turning to the merits of Plaintiffs' appeal, the Court first addresses DOE's Motion to Strike Extra-Record Materials. DOE moves to strike four state agency lease documents cited to and described by Plaintiffs on page 11 of their Reply Brief, arguing that the materials constitute extra-record evidence that would not be properly considered by the Court. (ECF No. 91; ECF No. 88, at 11.) Plaintiffs respond by arguing that the information is necessary to rebut the extra-record evidence DOE itself recently submitted to the Court regarding its plan to effectively stay any ground disturbing activities on the lease tracts. (ECF No. 93.)
"Motions to strike are generally disfavored, but are within the district court's sound discretion." Resolution Trust Corp. v. Ascher, 839 F.Supp. 764, 765-66 (D.Colo.1993). While a court's review of the merits in an APA case is generally limited to the administrative record, a court may consider extra-record materials for purposes of determining whether it has jurisdiction over the matter before it. See Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir.1990) (holding that district court did not abuse its discretion in considering extra-record evidence in order to determine whether it had jurisdiction); Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir.1997) (considering extra-record evidence "not in order to supplement the administrative record on the merits, but to determine whether [the court has] jurisdiction"); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560-61 (9th Cir. 2000) (denying motion to strike and considering extra-record evidence in order to
The extra-record evidence submitted or cited to by both parties in this action has been submitted or cited to in order to assist the Court in evaluating DOE's arguments that the action is prudentially moot and unripe.
The Court proceeds to analyze DOE's arguments that Plaintiffs' claims should be dismissed on the grounds that they are prudentially moot
DOE argues that the case is prudentially moot because it has committed to prepare an EIS in the future, there will be no ground disturbing activities on the lease tracts before completion of the EIS, and thus, "[a]s a functional matter, the leases and the [ULMP] itself are stayed." (Id. at 12.) It argues that, therefore, "[j]udicial review of the [EA] would be hollow given that its effect on future actions will likely be of no import," and that "any relief this Court might grant [would be] without practical effect." (Id. at 11-12.)
The doctrine of prudential mootness applies to controversies that, "though not moot in the strict Article III sense, [are] so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997) (citation and internal quotation marks omitted). "Prudential mootness addresses not the power to grant relief but the court's discretion in the exercise of that power." Id. (citation and internal quotation marks omitted); see also Rio Grande, 601 F.3d at 1122 ("Prudential mootness arises out of the court's general discretion in formulating prospective equitable remedies.") (citation and internal quotation marks omitted). In determining whether to exercise such discretion, "the central inquiry [is whether] circumstances have changed since the beginning of the litigation that forestall any occasion for meaningful relief." S. Utah Wilderness Alliance, 110 F.3d at 727.
The Court declines to exercise its authority to dismiss this action on the ground of prudential mootness because there is insufficient evidence before the Court that the planned EIS will indeed be completed. Numerous considerations lead the Court to this decision. First, despite DOE's publication in the Federal Register of the NOI and notice regarding public scoping, such published notices do not bind DOE to actually complete the EIS. See, e.g., 76 Fed. Reg. 84-85 (Jan. 3, 2011)
Second, despite DOE's assurances to the Court that it intends to complete the EIS, it has provided an insufficient explanation to the Court for why it is now planning to conduct an EIS. DOE's only explanation to the Court consists of the following:
(ECF No. 82, at 6; ECF No. 91, at 2-3.)
Third, DOE has provided no timetable to the Court for when the EIS will be completed. Although DOE has apparently recently informed the lessees that preparation of the EIS "is expected to take from 12-15 months to complete," nothing precludes DOE from granting itself one or more extension(s) of time with which to complete the EIS, or otherwise binds DOE to that or any other time frame.
Fourth, although DOE has represented to the Court that it will not approve any new "ground disturbing activities" while the EIS is being prepared, it has specifically excluded reclamation activities, suggesting that reclamation activities may continue during preparation of the EIS. (ECF No. 82, Ex. B, at 3 ¶ 8 ("While the [EIS] is being prepared, DOE will not approve any new ground disturbing activities other than for the limited purposes of reclamation.").) This does not appear to be entirely consistent with DOE's representation that "[a]s a functional matter, the leases and the [ULMP] itself are stayed." (ECF No. 82.) And there is evidence in the record suggesting that reclamation
Fifth, despite now planning an EIS, DOE has maintained its position that it did not violate NEPA by previously issuing an EA and FONSI. Indeed, an EIS is only required by law where a proposed action will "significantly affect[ ] the quality of the human environment." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4. However, DOE, in deciding to change course and prepare an EIS, has not conceded that expansion of the ULMP will significantly affect the quality of the human environment. Instead, the only explanation DOE has provided for preparing the EIS is that a new EIS "would be appropriate to analyze further the reasonably foreseeable environmental impacts, including site-specific impacts, of a range of alternatives for management of the [ULMP]." (ECF No. 82, at 6.) Therefore, it does not appear that DOE concedes or even believes that its preparation of an EIS is required by law. Thus, because its plan to conduct an EIS has been unilaterally undertaken apart (in its view) from any statutory requirement that it so do, DOE could, with some internal consistency, take the position in the future that it considers itself free to walk away from any commitment to complete the EIS. See Blue Ocean Preservation Soc. v. Watkins, 767 F.Supp. 1518 (D.Haw.1991) ("[T]he government unequivocally states its position that it is not required to prepare an EIS. It has consistently maintained that NEPA does not require it. . . . Thus the government reaffirms its position that nothing but its own volition is prompting the preparation of the EIS, and in so doing concedes that nothing would prevent it from again changing its position.").
And sixth, as a related matter, DOE has left the EA, FONSI, and 31 leases in place, and it appears that, absent judicial intervention, it intends to do so until the EIS is actually completed. DOE could have likely rendered this action not only prudentially moot, but constitutionally moot, by withdrawing the EA and FONSI and rescinding the 31 leases. It chose not to do so, and so the final actions challenged by Plaintiffs are still properly before the Court.
For the aforementioned reasons, the Court declines to dismiss this action on the ground of prudential mootness. See S. Utah Wilderness Alliance, 110 F.3d at 727.
Based on the same claim that DOE will prepare an EIS in the future, DOE also argues that Plaintiffs' claims should be dismissed because they are unripe "inasmuch as they challenge future actions by DOE." (ECF No. 82, at 15.)
"[A] court determines whether an agency decision is ripe for judicial review by examining the fitness of the issues for judicial decision and the hardship caused to the parties if review is withheld." Friends Of Marolt Park v. U.S. Dep't of Transp., 382 F.3d 1088, 1093 & n. 2 (10th Cir.2004) (citation and internal quotation marks omitted).
In terms of "the fitness of the issues for judicial decision" factor, there are 55 agency actions being appealed here, and they are final as of the date this decision was issued (although some of them are potentially subject to being reversed in the future if DOE completes the EIS and determines to terminate the ULMP). Also, the issuance of the EA/FONSI and 31 leases has resulted in tangible effects, namely, the approvals of exploration or reclamation activities on certain lease tracts. Under these circumstances, the Court finds that "the fitness of the issues for judicial decision" factor weighs heavily in favor of a finding that the action is ripe for review. See id. at 1093-94 & n. 2. The other factor the Court considers—the "hardship caused to the parties if review is withheld"—does not weigh heavily in either direction because, while DOE does not plan to approve any new ground disturbing activities before issuance of the EIS, it appears that DOE does plan to approve reclamation activities in the meantime. Id. at 1093 & n. 2. Thus, the "fitness of the issues for judicial decision" factor is dispositive, and leads the Court to decline to dismiss the action on the ground of lack of ripeness.
The Court now turns to the merits of Plaintiffs' administrative appeal.
Under the APA, a reviewing court shall set aside agency action if it is, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Generally, an agency decision will be considered arbitrary and capricious
However, "[t]he scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856; see also Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.2002) (stating that the court's review is "highly deferential"). The Court confines its review "to ascertaining whether the agency examined the relevant data and articulated a satisfactory explanation for its decision, including a rational connection between the facts found and the decision made." Colorado Wild v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir.2006).
"[T]he burden of proof rests with the appellants who challenge [the agency] action." Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir.2008) (citation and internal quotation marks omitted).
NEPA "require[s] agencies to consider environmentally significant aspects of a proposed action." Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1162 (10th Cir.2002). "NEPA does not, however, require agencies to elevate environmental concerns over other appropriate considerations; it requires only that the agency take a `hard look' at the environmental consequences before taking a major action." Krueger, 513 F.3d at 1178 (citation and internal quotation marks omitted). Also, "NEPA dictates the process by which federal agencies must examine environmental impacts, but does not impose substantive limits on agency conduct." Utah Envtl. Cong. v. Russell, 518 F.3d 817, 821 (10th Cir.2008). NEPA merely guards against "uninformed—rather than unwise—agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir.2006).
Plaintiffs argue that DOE violated NEPA by issuing the EA and FONSI rather than preparing a more detailed EIS, providing several bases for the argument. (ECF No. 78, at 21-24.)
One of Plaintiffs' primary arguments is that DOE violated NEPA by failing to analyze in the EA site-specific impacts of expanding the ULMP. (Id. at 21, 22, 23-24.) Indeed, DOE expressly noted in the EA that the EA "supports [DOE's] decision making on whether or not to continue the [ULMP] and provide[s] a level of detail commensurate with that process. It does not attempt to assess the site-specific impacts that might occur on individual lease tracts of the DOE-managed lands." (AR002613 (emphasis added).) In response, DOE argues, inter alia, that when the EA was issued, "DOE could not know with certitude what actions would be necessary to implement the [ULMP]," and the EA "properly deferred development of a detailed analysis of site-specific impacts until management of the [ULMP] is crystallized through implementation of site-specific actions." (ECF No. 82, at 20.)
The most recent Tenth Circuit case addressing the issue of whether a federal agency, acting in compliance with NEPA, must analyze site-specific impacts at the leasing stage of a mineral exploration and mining program is New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683 (10th Cir.2009). There, the court first analyzed the two prior Tenth Circuit precedents addressing the same issue: Park County Resource Council, Inc. v. U.S. Department of Agriculture, 817 F.2d 609 (10th Cir.1987),
565 F.3d at 717-18 (citations omitted). Analyzing those two factors, the New Mexico ex rel. Richardson court first held that environmental impacts were reasonably foreseeable at the leasing stage because considerable exploration had already occurred on adjacent land, a natural gas supply was known to exist beneath the parcels, and the company already had concrete drilling and mining plans in terms of the number of wells. Id. at 718-19. In terms of whether the leasing constituted an irretrievable commitment of resources, the court held that it did because of oil and gas regulations entitling the leaseholder to drill. Id. at 718. Thus, the court held that, under the facts of that case, the
This Court proceeds to analyze these same two factors. In terms of whether environmental impacts were reasonably foreseeable when DOE issued its EA, the Court concludes that they were, with the relevant facts of this case much like those in New Mexico ex rel. Richardson.
The EA also indicates that DOE has learned to set precise limitations on where the mine sites can and cannot be located. (See, e.g., AR002711 ("Under the Expanded Program alternative, DOE would restrict activities at existing mine sites so that they do not further encroach toward the Dolores River, and new mining activities would not be allowed within 0.25-mile of the Dolores River. Additionally, DOE would exclude tract 2 of lease tract 14 (which is extensively traversed by the Dolores River) from future leasing activities.").) Further, the EA describes in detail the specific activities that would take place on the lands, such as surface exploration, mine-site preparation, surface-plant area construction and operations, mine development and operation, and interim and permanent shutdown activities. (AR002634-55.) Thus, although DOE had not received any specific exploration or mining proposals at the time of the issuance of the EA, DOE had enough specific information regarding the lease tracts, the environmental setting, and the likely number and size of mines such that site-specific environmental impacts of expanding the ULMP were reasonably foreseeable when DOE issued the EA.
This case is distinguishable from New Mexico ex rel. Richardson as to whether the expansion of the ULMP would constitute
Park County, the first Tenth Circuit case addressing this issue, and which is relied on heavily by DOE in its Response Brief, is distinguishable.
The Court applauds DOE for planning to conduct an EIS for the ULMP that will include site-specific impacts. However, the question before the Court is whether DOE acted arbitrarily and capriciously in failing to analyze site-specific impacts in
Another argument Plaintiffs make in this section of their Opening Brief is that DOE violated NEPA by failing to consider the impacts of a proposed Energy Fuels uranium mill ("the Piñon Ridge Mill"). (ECF No. 78, at 22-23.) DOE responds by focusing on three primary things: (1) the mill was only in a preliminary planning stage at the time the EA was issued; (2) the mill is being built by a company on private land, and therefore does not involve federal action; and (3) approval of the construction of the mill is controlled by the Nuclear Regulatory Commission ("NRC") and state agencies, not DOE. (ECF No. 82, at 18-19.)
The Court concludes that DOE's first argument above has merit, and on that basis holds that DOE did not act arbitrarily and capriciously by failing to analyze the combined impacts of the Piñon Ridge Mill with expansion of the ULMP. On October 13, 2006, during the public comment period following DOE's issuance of the Draft EA, Plaintiffs specifically informed DOE regarding the mill. (AR002055-2059.) The EA specifically responded to this issue:
(AR002643; see also AR002734) ("There is speculation that a new mill might be built within the Paradox Basin. . . . However, at this time a specific location is unknown and, therefore, a more quantified assessment of potential changes in traffic impacts is neither warranted nor possible.") Because no formal proposal for constructing the mill had even been submitted to governmental permitting agencies at the time the EA was issued (and the EA stated this to be the reason for declining to consider the effects of the mill), the Court holds that DOE did not act arbitrarily and capriciously by declining to consider the effects of the mill. See Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1229 (10th Cir.2008) ("While a cumulative impact analysis requires the [reviewing agency] to include `reasonably foreseeable' future actions in its review, improper segmentation is usually concerned with projects that have reached the proposal stage.") (emphasis added) (internal quotation marks omitted); Grand Canyon Trust v. Fed. Aviation Admin., 290 F.3d 339, 345 (D.C.Cir.2002) (stating that, in analyzing the cumulative effects of a proposed action, an agency must consider "other actions—past, present, and proposed, and reasonably foreseeable—that have had or are expected to have impacts in the same area") (emphasis added).
However, because the Court by this Order is remanding to DOE to conduct a NEPA-compliant analysis of the ULMP (and DOE has represented to the Court that it will complete an EIS), it makes sense to point out that it appears that the Piñon Ridge Mill is in a much more advanced stage as of the date of this decision. In April 2009, Energy Fuels submitted a revised Special Use Permit Application for the mill to the Montrose County government.
DOE's other two arguments—that the effects of the mill need not be evaluated because (1) it is being built by a company on private land, and (2) approval of the mill is controlled by other governmental entities—lack merit. Regardless of whether an EA or EIS is being prepared, the agency conducting the analysis must consider the "cumulative impacts" of the proposed action. See, e.g., Bosworth, 443 F.3d 732 (stating that conducting an environmental assessment requires a cumulative impacts analysis); Davis v. Mineta, 302 F.3d at 1125-26 (requiring that agency conduct cumulative impacts analysis in EA). The applicable regulation defines "cumulative impact" as
40 C.F.R. § 1508.7 (emphasis added). Nothing in this regulation suggests that "cumulative impacts" are limited to those occurring on ULMP land, or that DOE need not consider the impacts from related activities that another federal agency is in charge of approving or disapproving. Case law is in accord with the Court's interpretation of this regulation. See, e.g., Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1176-77 (10th Cir.1999) (holding that agency had sufficiently analyzed off-site and indirect effects of its proposed action); Colo. River Indian Tribes v. Marsh, 605 F.Supp. 1425, 1433 (C.D.Cal.1985) (holding that the agency should have examined, as part of its cumulative effects analysis, the indirect effects of the action on off-site locations, and in so doing rejecting agency's contention that it need only consider activities within its own jurisdiction).
Plaintiffs also argue in this section of their Opening Brief that DOE violated NEPA by failing to consider road access and use of off-lease lands. (ECF No. 78, at 24.) As for road access, Plaintiffs' argument fails because the EA did explicitly consider, in detail, the effects that expansion of the ULMP would have on transportation. (See AR002643-53; AR002662-63.) In terms of other uses of off-lease lands by leaseholders, Plaintiffs' undetailed argument on this point fails to carry their burden of showing that the EA failed to sufficiently analyze such off-lease impacts.
However, given that DOE is being ordered on remand to conduct a NEPA-compliant analysis of the ULMP, it makes sense to point out that DOE is incorrect in its arguments in its Response Brief for why off-lease land uses by leaseholders need not be analyzed under NEPA. First, it argues that "[t]he scope of off-lease land uses is speculative at best at the pre-leasing stage." (ECF No. 82, at 22 n.7.) This argument is unpersuasive for the same reason the argument that site-specific impacts need not be considered is unpersuasive, namely, because such impacts are reasonably foreseeable given DOE's history of managing the ULMP program and its detailed knowledge regarding the mining that would occur under the expanded ULMP (e.g., how much uranium would be mined, the number and size of mines, etc.). Second, DOE argues that it need not address off-lease activities on land under BLM's jurisdiction. (See id.) The argument lacks merit. Even if BLM is in control of approving such activities, that does not mean that DOE need not consider such activities in its cumulative effects analysis. See 40 C.F.R. § 1508.7; Colo. Envtl. Coal. v. Dombeck, 185 F.3d at 1176-77; Colo. River Indian Tribes, 605 F.Supp. at 1433. DOE is ordered on remand to include in its NEPA-compliant analysis an analysis of the combined and cumulative impacts of the proposed action, including off-site activities by leaseholders.
The Court has concluded that DOE acted arbitrarily and capriciously by failing to analyze site-specific impacts in its NEPA analysis. The question is what the appropriate remedy is for that NEPA violation (an issue the Court discusses further infra). Plaintiffs make the baseline request that "the Court should remand the [EA] and FONSI back to [DOE] for the required NEPA analysis" (without specifying what type of NEPA analysis is required). (ECF No. 78, at 24.) The Court agrees that this is a proper course of action. Plaintiffs then note that the Court could go a step further and make an affirmative finding that the expansion of the ULMP will "significantly affect[ ] the quality of the human environment," which would require completion of an EIS. 42 U.S.C. § 4332(2)(C) (emphasis added). (See ECF No. 78, at 24) ("[T]his Court need not simply remand the significance decision, but instead has the power to find that the foreseeable direct, indirect, and cumulative past, present and future impacts ULMP
The Court declines to make a determination regarding whether the ULMP will significantly affect the quality of the human environment. That is DOE's role.
Plaintiffs argue that DOE violated NEPA by failing to review a reasonable range of alternatives in the EA. (ECF No. 78, at 24-27.) Specifically, Plaintiffs first argue that DOE acted unreasonably by including in one alternative the two options of retaining the land at issue under DOE control and transferring the land to BLM's jurisdiction. (Id. at 26-27.) Plaintiffs also argue that DOE's selection of alternatives was unreasonable because DOE failed to analyze the alternative of "pursuing additional withdrawals and more lease tracts." (ECF No. 78, at 27.)
40 C.F.R. § 1508.9 provides that an environmental assessment "[s]hall include brief discussions of the need for the proposal, alternatives as required by [42 U.S.C. § 4332(2)(E)], [and] of the environmental impacts of the proposed action and alternatives. . . ." 42 U.S.C. § 4332(2)(E) provides that federal agencies shall "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources."
New Mexico ex rel. Richardson, 565 F.3d at 708-09 (citations and internal quotation marks omitted).
Plaintiffs have not discharged their burden of showing that DOE's selection of alternatives was arbitrary and capricious. First, regarding DOE's inclusion in one alternative the two options of retaining the land under DOE control and transferring the land to BLM's jurisdiction, Plaintiff has not sufficiently shown that the two options have significant differences. On this point, Plaintiffs make only vague references to "this change in regulatory status, and the resulting changes in regulatory
Plaintiffs also state that "maintaining the lease tracts for future ULMP leasing would have very different environmental consequences than conducting reclamation activities necessary to transfer to BLM," implying that BLM would require higher-quality reclamation activities than would DOE. (Id. at 26-27.) Again, Plaintiffs have not met their burden of showing that significantly different levels of reclamation activities would occur under DOE control as opposed to BLM control. The EA itself stated that the same reclamation activities would occur no matter whether DOE or BLM had jurisdiction:
(AR002628.) Thus, there is insufficient evidence indicating that reclamation activities under DOE jurisdiction would be significantly different than those under BLM jurisdiction.
Regarding Plaintiffs' argument that DOE unreasonably failed to analyze the alternative of "pursuing additional withdrawals and more lease tracts," DOE argues that it did consider, but eliminated from consideration, this alternative "because neither BLM nor DOE have the authority to withdraw additional lands without Congressional approval." (AR002625.) Plaintiffs did not effectively respond to that argument in their Reply Brief. (See ECF No. 88, at 14.) Plaintiffs have not shown that DOE acted arbitrarily and capriciously by failing to select that alternative as one analyzed in detail in the EA.
Plaintiffs argue that DOE acted arbitrarily and capriciously by failing to invite CDPHE and EPA to serve as "cooperating agencies" in the NEPA process under 40 C.F.R. § 1501.6. In response, DOE argues that it was not required to invite CDPHE and EPA as cooperating agencies because neither agency has "jurisdiction by law" under 40 C.F.R. § 1501.6.
40 C.F.R. § 1501.6(a)(1) provides that a "lead agency shall [r]equest the participation of each cooperating agency in the NEPA process at the earliest possible time" (emphasis added). 40 C.F.R. § 1501.6 must be read in conjunction with 40 C.F.R. § 1508.5, which defines the term "cooperating agency" under the regulations. 40 C.F.R. § 1508.5 provides,
Under 40 C.F.R. 1501.6(a)(1), a lead agency must request the participation in the NEPA process of any agency fulfilling the definition of "cooperating agency" under 40 C.F.R. § 1508.5.
First, as to CDPHE, the last sentence of 40 C.F.R. § 1508.5 makes clear that CDPHE, a state agency, was by definition not a "cooperating agency" because it never reached an agreement with DOE to serve as a cooperating agency. Therefore, DOE was not required under 40 C.F.R. § 1501.6(a)(1) to request the participation of CDPHE in the NEPA process at the earliest possible time.
However, the Court concludes that DOE was required to "[r]equest the participation of [EPA] in the NEPA process at the earliest possible time." 40 C.F.R. § 1501.6(a)(1). Contrary to DOE's argument, a federal agency is a "cooperating agency in the NEPA process not only if it has "jurisdiction by law," but also if it has "special expertise" with respect to the environmental issues involved." 40 C.F.R. § 1508.5. The EA itself indicates that EPA has special expertise with respect to uranium mining, specifically, radon emissions from uranium mines. (AR002634 (discussing standards established by EPA governing radon emissions from uranium mines); AR002709 (same).) See also 40 C.F.R. § 61.22 ("Emissions of radon-222 to the ambient air from an underground uranium mine shall not exceed those amounts that would cause any member of the public to receive in any year an effective dose equivalent of 10 mrem/y."). See generally 40 C.F.R. pt. 61 subpt. B (creating "National Emission Standards for Radon Emissions from Underground Uranium Mines").
Therefore, EPA was a "cooperating agency" under 40 C.F.R. § 1508.5. As a result, 40 C.F.R. § 1501.6(a)(1) required DOE to request participation of EPA in the NEPA process at the earliest possible time. The record indicates that the NEPA process at issue began in June 2005, and DOE invited other agencies to serve as cooperating agencies in August 2005. However, DOE's only apparent contact with any EPA representative during the NEPA process was sending a draft EA to the EPA representative in July 2006. Thus, the Court concludes that DOE violated NEPA by failing to request the participation of EPA in the NEPA process at the earliest possible time. 40 C.F.R. § 1501.6(a)(1).
Plaintiffs argue that DOE's issuance of the 31 leases violated NEPA because no further NEPA analysis was conducted prior to the issuance of each lease. (ECF No. 78, at 29-30.) In support of their argument, Plaintiffs rely on Southern Utah Wilderness Alliance v. Norton, 457 F.Supp.2d 1253 (D.Utah.2006). There, the court held that BLM violated NEPA by issuing oil and gas leases in reliance on environmental analyses that were, in some cases, more than 30 years old. Id. at 1253, 1264-65. The court held that BLM should have supplemented those environmental analyses prior to issuing the leases, because of evidence in the record of "significant new information about the affected environment" that did not exist at the time of the prior environmental analyses. Id. at 1264-65. Here, however, the EA/FONSI was issued in July 2007, and the leases were issued during 2008. Plaintiffs have not pointed out to the Court "significant" new information that was available to DOE in 2008 that was not available to it in July 2007, which would require a supplemental environmental analysis. Thus, Plaintiffs have not met their burden of showing that DOE acted arbitrarily and capriciously by issuing leases pursuant to the EA/FONSI without conducting further environmental analyses under NEPA.
Plaintiffs argue that DOE unlawfully relied on categorical exclusions in approving the exploration and reclamation activities. (ECF No. 78, at 30-36.) DOE responds by arguing that (1) the issue of DOE's use of categorical exclusions is moot because the approved exploration and reclamation activities have already been completed, and (2) DOE's use of categorical exclusions to approve the activities at issue was not arbitrary and capricious. The Court rejects DOE's first argument, but agrees with its second argument.
As for DOE's mootness argument, the Court points out that, although the Court has no power to enjoin already-conducted exploration and reclamation activities, DOE can repeat the use of categorical exclusions for such activities under the ULMP and leases still in effect. The issue of whether the use of categorical exclusions to approve such activities violates NEPA is therefore not moot. See Rio Grande, 601 F.3d at 1122 ("A voluntary-cessation evaluation may be an important component of the overall analysis with respect to both constitutional and prudential mootness. . . . Under both mootness doctrines, courts must assess the likelihood that defendants will recommence the challenged, allegedly offensive conduct.").
However, the Court holds that the use of categorical exclusions for these activities was not arbitrary and capricious. NEPA regulations define categorical exclusions as "actions which do not individually or cumulatively have a significant effect on the human environment . . . and for which . . . neither an environmental assessment nor an environmental impact statement is required." 40 C.F.R. § 1508.4. DOE regulations
The five exploration plans at issue consisted of the drilling on each lease tract of anywhere from one to eight exploratory boreholes, each approximately six inches wide and anywhere from 225 to 750 feet deep. (AR003063, AR003179, AR003283, AR003491, AR003581.) DOE approved the exploration activities under categorical exclusion B3.1 in its regulations entitled "Onsite and offsite site characterization and environmental monitoring . . .," with two of the approvals specifically referring to subpart B3.1 (f), which categorically excludes "[s]ampling and characterization of water, soil, rock, or contaminants." 10 C.F.R. Pt. 1021, Subpt. D, App. B. (AR003064, AR003180, AR003284, AR003495, AR003582.) The exploratory boreholes that were drilled can reasonably be characterized as "site characterization," particularly given that an example in the regulations for "site characterization" was "soil sampling and characterization." This use by DOE of this categorical exclusion was not arbitrary and capricious. See Krueger, 513 F.3d at 1178; Alaska Ctr. for the Env't, 189 F.3d at 857.
Many of the 13 RILOR plans at issue involved reclaiming abandoned mines, which generally involved closing the mine holes with boulders and rocks and/or backfilling the hole with available mine-waste rock and other surface soil materials, covering those materials with soil, and reseeding the soil. (See AR002999, AR003218, AR003349, AR003862, AR003939, AR004030, AR004116, AR004168, AR004217, AR004336.) Some of the RILOR plans involved capping drill holes with a polyurethane foam plug, covering the plug with soil, and re-seeding the soil. (See AR002835, AR003699, AR003862, AR004217.)
The reclamation activities that were conducted were all approved by DOE pursuant to categorical exclusion B1.3(k). Categorical exclusion B1.3 applies to "routine maintenance activities . . . for buildings, structures, rights-of-way, infrastures (e.g., pathways, roads, and railroads), vehicles and equipment, and localized vegetation and pest control. . . ." See 10 C.F.R. Pt. 1021, Subpt. D, App. B. The categorical exclusion provides examples of the "routine maintenance activities" applicable to the categorical exclusion, with B1.3(k)— the one utilized by DOE—being "[e]rosion control and soil stabilization measures (such as reseeding and revegetation)." See id.
The use of this particular categorical exclusion for these reclamation activities presents a closer question. It is a stretch to characterize the reclamation activities that took place as "[r]outine maintenance activities . . . for buildings, structures, rights-of-way, infrastures (e.g., pathways, roads, and railroads), vehicles and equipment, and localized vegetation and pest control." Further, the record does not indicate that the primary purpose of reclamation of abandoned uranium mines would
Under the ESA, a federal agency is required to "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. . . ." 16 U.S.C. § 1536(a)(2); see also Rio Grande, 601 F.3d at 1104. To meet this obligation, the agency must "review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat." 50 C.F.R. § 402.14 (emphasis added); see also Rio Grande, 601 F.3d at 1105. If the agency determines that an action may affect listed species or critical habitat, it must formally consult with the FWS. 50 C.F.R. § 402.14; Rio Grande, 601 F.3d at 1105. "During consultation, the FWS evaluates the effects of the proposed action on the survival of the species and any potential destruction or adverse modification of critical habitat. . . ." Rio Grande, 601 F.3d at 1105.
As an initial matter, DOE argues that Plaintiffs failed to provide the required notice under the ESA regarding their intent to sue as to 20 of the 55 final agency actions at issue in this action. (ECF No. 82, at 30-32.) Specifically, it argues that Plaintiffs' April 15, 2009 notice letter to DOE regarding their intent to sue could not serve as an effective notice as to the 20 final agency actions that occurred after April 15, 2009,
As to DOE's first argument, nothing in the notice statute's language explicitly prevents a notice from being effective as to a future action. See 16 U.S.C. § 1540(g)(2)(A)(i). Case law appears to be divided on the issue of whether a notice can be effective as to a future action. Compare Water Keeper Alliance v. U.S.
However, case law is more consistent in holding that a legal action brought under the ESA may challenge future actions. See, e.g., Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 785 (9th Cir.1995) ("[T]he injunctive relief authorized by the citizen suit provision, 16 U.S.C. § 1540(g), is by its very nature directed at future actions."); Animal Welfare Inst. v. Beech Ridge Energy, LLC, 675 F.Supp.2d 540, 560 (D.Md.2009) ("[T]he ESA's citizen suit provision provides for injunctive relief which by design prevents future actions that will take listed species."). Allowing a legal action to be brought under the ESA that challenges future agency actions is inconsistent with a rule that a pre-suit notice under the ESA cannot challenge future agency actions. Allowing a pre-suit notice under the ESA to challenge future agency actions would harmonize better with the holdings of Rosboro Lumber and Beech Ridge Energy.
Instead, the determinative question (raised by DOE's second argument) is whether the notice sent by Plaintiffs contained a sufficient description of the challenged activities, thus sufficiently putting DOE on notice. In addressing the level of specificity an ESA notice of intent to sue must have, the court in Wyoming Farm Bureau Federation v. Babbitt, 987 F.Supp. 1349 (D.Wyo.1997), rev'd on other grounds, 199 F.3d 1224, 1230 (10th Cir.2000), held that the notice must "provide a generic description of the activity alleged to constitute the violation." Id. at 1363 (emphasis in original). The Court holds that the notice was effective to challenge the subsequent approvals of the five exploration plans and 13 RILOR plans.
Plaintiffs argue that DOE violated the ESA by failing to consult with the FWS regarding the potential effects of the ULMP on four endangered species of fish found in the Colorado river downstream from the ULMP land: the Colorado pikeminnow, humpback chub, razorback sucker, and bonytail.
If DOE's representations to this Court that it came to a "no effect" determination in the EA were accurate, it is true that it would have had no duty to consult with FWS. Formal consultation is only required under the ESA if an agency comes to a determination that a proposed federal action "may affect" listed species or critical habitat. See 50 C.F.R. § 402.14(a) ("Each Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required. . . .").
However, contrary to DOE's representations, it did not arrive at a "no effect" determination in the EA. Instead, the EA states, "Impacts to threatened, endangered, and sensitive fish in the Dolores River or downstream in the Colorado River would be highly unlikely due to the small scale of disturbances, implementation of storm-water controls, and lack of discharge into waterways during mining operations." (AR002715 (emphasis added).)
The Court turns to evaluating whether the EA's determination that impacts to endangered fish would be "highly unlikely" triggered DOE's duty under the ESA to consult with FWS. Again, formal consultation is required under the ESA if an agency comes to a determination that an action "may affect" listed species or critical habitat. 50 C.F.R. § 402.14(a).
The Court holds that DOE's determination that effects on listed species would be "highly unlikely" satisfies this low "may affect" standard. Thus, DOE's own conclusion in the EA on this point triggered DOE's duty to consult with FWS. This determination in the EA was made in July 2007. By DOE's own admission, it still had not entered into formal consultation with FWS as of June 2011, although by that time it was planning to do so. (See ECF No. 82, Ex. B, at 2-3 ¶ 6.) In the meantime, DOE issued 31 leases, approved five exploration plans (with the exploratory boreholes already drilled), and approved 13 RILOR plans (with the reclamation activities already conducted). This failure to consult promptly with FWS upon its reaching its conclusion in the EA violated ESA. See 50 C.F.R. § 402.14(a).
DOE also argues that the EA/FONSI merely approved the issuance of leases, and that "an agency's approval of a leasing program and issuance of leases does not trigger ESA consultation where the agency authorizes no surface disturbing activity. . . ." (ECF No. 82, at 34.) On this point, I find my colleague U.S. District Judge Marcia S. Krieger's analysis in The Wilderness Society v. Wisely, 524 F.Supp.2d 1285 (D.Colo.2007), to be persuasive. There, Judge Krieger held that BLM had violated ESA by failing to engage in formal consultation with FWS, prior to its decision in the EA to resume oil and gas leasing on the South Shale Ridge in Colorado, regarding the oil and gas leasing's effects on the hookless cactus present in that area. Id. at 1298-1302. The court so held because ESA requires consultation "at the earliest possible time," and BLM had already attempted to assess in the EA the impacts of leasing on the hookless cactus. Id. at 1301. The court also based its decision on the fact that no new information was gained between the issuance of the EA and the time that BLM decided to consult with ESA. Id. at 1301-02. In addition, the court so held despite evidence that BLM would be able to engage in site-specific analysis when faced with actual applications for permits to drill. Id. at 1298-99, 1301.
Plaintiffs request that the Court "set aside" all 55 final agency actions at issue, including the issuance of the EA/FONSI, the issuance of the 31 leases, and the approvals of the exploration and reclamation activities. (ECF No. 78, at 39-40.) DOE responds that, should the Court find any NEPA or ESA violation, injunctive relief is not appropriate (and even if it is, it should be narrowly tailored), given that DOE plans to complete an EIS for the ULMP.
Injunctive relief does not automatically issue, nor is it presumptively proper, upon a finding of a NEPA violation. See Monsanto Co. v. Geertson Seed Farms, ___ U.S. ___, 130 S.Ct. 2743, 2756-57, 177 L.Ed.2d 461 (2010) (rejecting prior case law holding that an injunction is presumptively proper to remedy a NEPA violation). Instead, "the traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation." Id. at 2756. Under that test,
Id.
The Court has carefully considered the four Monsanto factors and applied them to the facts of this case. The Court concludes that in these circumstances injunctive relief is appropriate. First, although DOE's violation of NEPA standing alone does not establish irreparable injury, it is a relevant factor to consider. See, e.g., Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1, 24 (D.D.C.2009) ("Although a procedural violation of NEPA is not itself sufficient to establish irreparable
Therefore, through this Order, the Court issues the following injunctive relief:
(1) The 2007 EA and FONSI are hereby invalidated for being issued in violation of NEPA and ESA, and have no further legal or practical effect;
(2) The 31 leases currently in existence under the ULMP are hereby stayed. See Conner v. Burford, 848 F.2d 1441, 1460-61, 1462 (9th Cir.1988) (staying leases until agencies on remand complied with NEPA and ESA); Native Vill. of Point Hope v. Salazar, 730 F.Supp.2d 1009, 1019 (D.Alaska 2010) (finding NEPA violation and remanding, but declining to require agency to completely redo the permitting process at issue); Mont. Wilderness Ass'n v. Fry, 408 F.Supp.2d 1032, 1038 (D.Mont.2006) ("The appropriate injunctive relief with regard to the gas leases is a continued suspension of activity on those leases pending full compliance by the BLM with this Court's . . . Order.");
(3) DOE is enjoined from issuing any new leases on lands governed by the ULMP. See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., Civ. No. 05-0460 & 05-0488 (Dec. 7, 2009 order issued on remand from Tenth Circuit decision cited in this Order) (enjoining agency from issuing a lease "without first conducting an appropriate environmental analysis pursuant to NEPA");
(4) DOE is enjoined from approving any activities on lands governed by the ULMP, including exploration, drilling, mining, and reclamation activities. See Conner, 848 F.2d at 1461 ("As other courts also have done in similar situations, we hereby enjoin the federal defendants from permitting any surface-disturbing activity to occur on any of the leases until they have fully complied with NEPA and ESA"); Mont. Wilderness Ass'n, 408 F.Supp.2d at 1038; and
(5) After Defendants conduct an environmental analysis on remand that complies with NEPA, ESA, all other governing statutes and regulations, and this Order, Defendants may move the Court to dissolve this injunction. See Mont. Wilderness Ass'n, 408 F.Supp.2d at 1039-40.
In accordance with the foregoing, it is therefore ORDERED that:
Envtl. Prot. Agency, Technical Report on Technologically Enhanced Naturally Occurring Radioactive Materials From Uranium Mining, Volume 1: Mining and Reclamation Background, http://www.epa.gov/radiation/docs/tenorm/402-r-08-005-voli/402-r-08-005-v1.pdf (last visited Sept. 2, 2011).
Three more leaseholders discontinued operations and reclaimed their sites between 1984 and 1994. (Id.)
On a separate point, there is insufficient evidence for the Court to conclude that DOE's failure to invite EPA to serve as a cooperating agency in August 2005 was harmless. EPA's involvement in the NEPA process may have been more substantial if it had been formally invited to serve as a cooperating agency in August 2005, rather than DOE simply sending the draft EA to a single EPA representative in June 2006.
