San Juan Citizens Alliance v. U.S. Bureau of Land Mgmt.

326 F.Supp.3d 1227

SAN JUAN CITIZENS ALLIANCE, WildEarth Guardians, Amigos Bravos, Dine Citizens Against Ruining Our Environment, and Sierra Club, Plaintiffs,

v.UNITED STATES BUREAU OF LAND MANAGEMENT, Sally Jewell, in her official capacity as United States Secretary of the Interior, United States Forest Service, and Tom Vilsack, in his Official capacity as United States Secretary of Agriculture, Defendants.

No. 16-cv-376-MCA-JHR

United States District Court, D. New Mexico.

Signed June 14, 2018

Kyle Tisdel, Western Environmental Law Center, Taos, NM, Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, NM, for Plaintiffs.

Clare Marie Boronow, U.S. Department of Justice, Denver, CO, Rebecca J. Jaffe, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, Senior United States District Judge

THIS MATTER is before the Court on Plaintiffs' Petition for Review of Agency Action [Doc. 1] and Plaintiffs' Opening Merits Brief [Doc. 22].

Plaintiffs are a collective of citizens groups whose members variously "use and enjoy the wildlands, wildlife habitat, rivers, streams, and healthy environment on ... lands affected by development of the 13 leases challenged" by this action. [Doc. 1 ¶¶ 12-17] Defendants are federal agencies (or the heads of such agencies) responsible for managing the at-issue public lands and resources. [Doc. 1 ¶¶ 20-23] Plaintiffs' Petition challenges the joint decision of the United States Bureau of Land Management (BLM) and the United States Forest Service (USFS or "the Forest Service") to lease thirteen parcels of federal mineral estate in the Santa Fe National Forest (SFNF) in New Mexico. [Doc. 22 p. 12; Doc. 26 p. 7]¹ As grounds for their challenge, Plaintiffs allege that BLM and the Forest Service (collectively "the agencies") violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 - 35.

The Court has considered the parties' submissions, the relevant law, and the record, and is otherwise fully advised. For the reasons that follow, the Court grants in part and denies in part Plaintiffs' requested relief.

I. DISCUSSION

A. Overview of the Governing Law

1. NEPA

NEPA was enacted by Congress in recognition of "the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influence[ ] of ... resource exploitation" and "the critical importance of restoring and maintaining environmental quality[.]" 42 U.S.C. § 4331(a). Congress declared it to be "the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." Id.

To that end, NEPA requires "all agencies of the Federal Government" to:

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality [CEQ] ... which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed [environmental impact] statement [EIS] by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332.

NEPA is complemented by federal regulations purposed "to tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act." 40 C.F.R. § 1500.1(a). The procedures require that "high quality" environmental information based on "[a]ccurate scientific analysis, expert agency comments, and public scrutiny" is available to public officials and citizens before decisions are made and before actions are taken. Id. § 1500.1(b).

NEPA's purpose is not to generate paperwork—even excellent paperwork—but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. The[ ] regulations provide the direction to achieve this purpose.

40 C.F.R. § 1500.1(c).

To determine whether a proposed action "significantly affect[s] the quality of the human environment," thereby prompting the EIS requirement, 42 U.S.C. § 4332(c), the federal agency may be required to prepare an environmental assessment (EA). 40 C.F.R. § 1501.4(b). "An EA is a concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact." Blue Mountains Biodiversity Project v. Blackwood , 161 F.3d 1208, 1212 (9th Cir. 1998) (internal quotation marks, citations and brackets omitted); accord 40 C.F.R. § 1508.9(a)(1). Based on the environmental assessment, a federal agency must either prepare an EIS or prepare a "finding of no significant impact" (FONSI). 40 C.F.R. § 1501.4(c) - (e). "[I]nherent in NEPA and its implementing regulations is a ‘rule of reason,’ which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (internal quotation marks and citation omitted).

In cases requiring an EIS, the agency is required to prepare "a concise public record of decision" stating, among other things: what the decision was; all alternatives that were considered in reaching the decision; the alternatives that were "environmentally preferable"; and "whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not[.]" 40 C.F.R. § 1505.2.

The environmental impact statement shall succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration. The descriptions shall be no longer than is necessary to understand the effects of the alternatives. Data and analyses in a statement shall be commensurate with the importance of the impact, with less important material summarized, consolidated, or simply referenced. Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on important issues. Verbose descriptions of the affected environment are themselves no measure of the adequacy of an environmental impact statement.

40 C.F.R. § 1502.15.

Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix.

40 C.F.R. § 1502.24.

Agencies are encouraged to tier² their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review (§ 1508.28). Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action. The subsequent document shall state where the earlier document is available.

40 C.F.R. § 1502.20. "A NEPA document that tiers to another broader NEPA document ... must include a finding that the conditions and environmental effects described in the broader NEPA document are still valid or address any exceptions." 43 C.F.R. § 46.140. "An [EA] prepared in support of an individual proposed action can be tiered to a programmatic or other broader-scope [EIS] ... for a proposed action with significant effects ... if the ... broader [EIS] ... fully analyzed those significant effects." 43 C.F.R. § 46.140(c). However, "[t]o the extent that any relevant analysis in the broader NEPA document is not sufficiently comprehensive or adequate to support further decisions, the tiered NEPA document must explain this and provide any necessary analysis." 43 C.F.R. § 46.140(b).

In cases in which a federal agency prepares a FONSI, the reviewing court must "insure that the agency [took] a ‘hard look’ at environmental consequences"; however, the Court "cannot interject itself within the area of discretion of the [agency] as to the choice of the action to be taken." Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). In keeping with the "hard look" requirement, some courts have held that an agency that prepares a FONSI "must supply a convincing statement of reasons to...