Opinion
Civil Action No. 15-cv-00858-CMA
07-25-2017
WILDEARTH GUARDIANS Petitioner, v. TAMARA CONNER, in her official capacity as District Ranger, Leadville Ranger District, San Isabel National Forest, United States Forest Service; and UNITED STATES FOREST SERVICE, a federal agency of the United States Department of Agriculture, Respondents.
ORDER AFFIRMING AGENCY DECISION
Petitioner Wildearth Guardians ("Petitioner") appeals the administrative actions taken by Respondents Tamara Conner in her official capacity as District Ranger, Leadville Ranger District, San Isabel National Forest, United States Forest Service; and the United States Forest Service ("Service"), a federal agency of the United States Department of Agriculture. Petitioner seeks the reversal of the April 2014 Environmental Assessment ("EA") which the Service undertook for the Tennessee Creek Project (Project") and the related November 13, 2014 Decision Notice ("DN") and Finding of No Impact Statement ("FONSI"). Petitioner alleges that Respondents violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Petitioner's appeal is before the Court pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. For the reasons described below, the Court affirms the challenged agency actions.
I. BACKGROUND
Lynx were listed as threatened under the Endangered Species Act ("ESA") by the U.S. Fish and Wildlife Service ("FWS") in 2000. 65 Fed. Reg. 16052 (March 24, 2000). Lynx therefore received ESA protection pursuant to 16 U.S.C. § 1538(a)(1). Due to their threatened status, the Southern Rockies Lynx Amendment ("SRLA"), applicable to the Land and Resource Management Plan for the Pike-San Isabel National Forest, was generated in October 2008, providing binding direction for project level decisions in lynx habitat. (T01098). It incorporates the best-available information on lynx. (T01062).
On July 20, 2011, the Service proposed the Project to treat 13,580 acres of forest (T2281-5) (Project Initiation Letter) within the Project Area. (T10510) (Map). The purposes and needs of the Project include the creation of forest conditions that are more resilient to insects, diseases, and fire and the improvement or maintenance of habitat for endangered species, including lynx. (T10502). The Project Area includes 16,450 acres on the Leadville and Eagle-Holy Cross Ranger Districts. (T10501) (Map). The proposed treatments include 2,370 acres of regeneration harvest in lodgepole pine stands, 6,765 acres of thinning in mature lodgepole pine stands, and 345 acres of pre-commercial thinning. (T10507). Treatments will average 300-500 acres per year (T10502) in areas in need of treatment and will be implemented over the next ten to fifteen years. The Project will be implemented on some lynx habitat.
The SRLA identifies the Lynx Assessment Unit ("LAU") as the appropriate unit for analyzing the effects of project-level decisions on lynx habitat. (T01109). It sets goals, objectives, standards and guidelines that collectively ensure that LAUs retain a sufficient quantity and distribution of lynx habitat. LAU boundaries are designed to provide an adequate amount and spatial distribution of primary and secondary lynx habitat, and apply to habitat in the aggregate. (T01218-9).
The Service began its determination of the environmental impact of the Project with an environmental assessment, pursuant to 40 C.F.R. 1501.4(b). The assessment would determine if the Service would be required to perform an environmental impact statement , and if not, to instead issue a "finding of no impact statement" ("FONSI"), 40 C.F.R. 1504(b); 40 C.F.R. 1508.9(a)(1).
Although a draft EA was not required, on December 17, 2013, the Service distributed one. 43 C.F.R. § 46.305(a) required the Service to "provide for public notification and public involvement" in the preparation of its EA, and vested it with discretion to determine the methodology used. Consistent therewith, on December 19, 2013, the Service published a notice announcing a 30-day comment period on the draft EA.
16 U.S.C. § 1536(a) required the Service to consult with FWS to ensure that the Project would not be likely to jeopardize the lynx or its habitat. On December 10, 2013, the Service prepared a draft Biological Assessment ("BA") for the FWS to review as part of its consultation to analyze the effects of the Project on lynx. (T06255-322). The BA concluded that the Project is "not likely to adversely affect" lynx. (T06302). After receiving comments from FWS on the draft BA and public comments on the draft EA, on March 14, 2014, the Service revised the BA (T06515-76) and it again concluded that the Project is "not likely to adversely affect" the lynx. (T06566). The Service resubmitted the revised BA to FWS. On July 14, 2014, FWS concurred with the BA's conclusion, stating that the Project "may affect, but is not likely to adversely affect the Canada Lynx" (T06587) and that "no critical habitat for the lynx will be affected." Id.
The Service developed three alternatives for detailed consideration in the EA. (T10506-34). A no-action alternative would maintain the status quo (T10506-07), which Service concluded would not meet the purpose and need of the Project. (T10271). The proposed action Alternative 1 would regenerate lodgepole pine on 2,370 acres, thin 7,110 acres of mature lodgepole pine stands, and improve 115 acres of aspen stands. (T10507-08). Alternative 2 proposed a different mix of treatments. (T10512). The Service also modified the proposed action alternatives in response to public comments to the draft EA. (T11036; T02783). The service made conservative assumptions for its analysis in the EA. Based thereon, the EA concluded that the Project would not exceed the SRLA's parameters. (T10651).
On April 11, 2014, the Service issued its Final EA, concluding that the Project, under either Alternatives 1 and 2, is "not likely to adversely affect" lynx. (T10583-4). On November 13, 2014, Respondent Tamara Conner issued the DN and FONSI, choosing to proceed with Alternative 1 of the Project.
II. STANDARD OF REVIEW
This court has jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 704.
The APA instructs that the Court shall set aside a federal agency action if it is ''arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law'' or ''without observance of procedure required by law.'' 5 U.S.C. §§ 706(2)(A) & (D). ''[I]n determining whether the agency acted in an 'arbitrary and capricious manner,' [the court] must ensure that the agency 'decision was based on a consideration of the relevant factors' and examine whether there has been a clear error of judgment.'' Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997). The scope of review is narrow and a court is not to substitute its judgment for that of the agency. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Agency decisions should be set aside "only for substantial procedural or substantive reasons. . . not simply because the court is unhappy with the result reached." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983). Normally, the court may find a decision arbitrary and capricious if:
the agency had relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463 U.S. at 43.
Review of an agency's decision is usually deferential. Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). The deference given ''is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise.'' Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). If the agency's exercise of discretion is truly informed, then the court must defer to it. Utah Shared Access All. v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002).
III. ANALYSIS
A. The Service's Analysis of the Project's Impacts
Petitioner claims that the EA and DN/FONSI fail to disclose, analyze, and otherwise take a hard look at the environmental effects on lynx and specific types of lynx habitat, precluding an accurate assessment of the environmental consequences of the proposed Project. While other species are present in the Project Area, Petitioner's appeal is focused on the effects of the Project on lynx. Petitioner alleges that the Service failed to create and consider the necessary site-specific data to comply with NEPA. Petitioner argues that the Service also failed to proffer this data for public comment in the preparation of its EA, although it does not appeal the methodology of the public involvement implemented by the Service. Petitioner argues that the Service needed to have prepared an environmental impact statement to cure these deficiencies.
Citing Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999), Respondents assert that the Service analyzed the effects of the proposed treatments of the Project on lynx habitat consistent with the relevant factors of the SRLA (T10263), and both that this constituted a reasonable approach for the Service to utilize and satisfies NEPA's hard look requirement. Respondents also describe the public participation in the preparation of the EA, which they consider adequate because the process used informed the public about the effects of the Project and ensured the Service reached a well-informed decision, consistent with NEPA. (T10503-04).
The Court addresses each argument in turn.
1. The EA's Site-Specific Detail
a. The Parties' Arguments
Petitioner argues that the Forest Service violated NEPA as follows.
• The Service failed to take a hard look at the effects of the Project based on the absence of site-specific analyses, citing Colo. Envtl. Coal. v. Ofc. of Legacy Mgmt., 819 F.Supp. 2d 1193, 1209-10 (D. Colo. 2011), and failed to disclose the specifics of the treatment units, the locations of temporary roads, and the placement of reserves. As a result, this lack of detail precludes the ability to confirm that the Service's conclusion that it will avoid lynx habitat "stands with greater than 35 percent dense horizontal cover."
• The Service failed to meet its duty to quantify the anticipated scope of the effects of the Project on the lynx winter and denning habitat because the Service did not identify the logging units to be treated although it had already "pre-identified" some for pre-commercial thinning. (T11614). Petitioner claims that these deficiencies in the NEPA analysis rendered the EA and DN/FONSI arbitrary and capricious.
In response, Respondents contend:
• Petitioner has waived the issue of the precise location of all treatment units and temporary roads since it did not raise this issue before now;
• the Service had no duty to specify the exact location of every treatment unit and temporary road to fulfill its responsibility to take a hard look at the effects of the Project;
• the Service fashioned the Project consistent with every goal, objective, standard and guideline of the SRLA, including analyzing the effects of the Project on lynx on each LAU as directed by the SRLA, which does not require it to specify these exact locations;
• the EA provides detailed guidance on treatment prescriptions (T10507-09; T10515-31), consistent with the SRLA, which the DN/FONSI adopted as requirements. (T10714-17; T10734-41);
• the EA adequately quantifies the acres of lynx habitat that will be removed by pre-commercial thinning treatments, specifies their location in prior clear-cut units, and explains how these treatments comport with the SRLA's standards (T10578; T10651-62); (T10267) (Consideration of Comments), sufficiently for Petitioner to comment during the EA process; and
• the FWS concurs that the Service's methodology is sound, the Service took a hard look at the relevant factors in its analysis, and the Project is not likely to adversely affect lynx.
Respondent also notes that the Service captured the effects of the Project on lynx habitat through its use of the most recent LAU maps (T06581), and that the Service will also survey each treatment unit to ensure consistency with the design criteria of the EA.
b. Additional Law
NEPA's ''twin aims'' require a federal agency ''to consider every significant aspect of the environmental impact of a proposed action,'' and to ''inform the public that it has indeed considered environmental concerns in its decision-making process.'' Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97 (1983). NEPA professes no public policy concerning the protection of the environment or natural resources; rather, it ''requires only that an agency take a 'hard look' at the environmental consequences of any major federal action.'' Citizen's Committee to Save Our Canyons v. Krueger, 513 F.3d 1169, 1178 (10th Cir. 2008); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 385 (1989). NEPA allows the Service to prepare an EA to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a [FONSI]." 40 C.F.R. § 1508.9(a)(1); WildEarth Guardians v. United States Fish & Wildlife Service, 784 F.3d 677, 690 (10th Cir. 2015) (An EA is a "rough-cut, low-budget [EIS] designed to show whether a fullfledged [EIS] . . . is necessary.").
c. The Court's Conclusion
In accordance with these legal principles, the Court concludes as follows. Petitioner sufficiently preserved its issue for appeal by objecting to the absence of specific locations of the treatment units and temporary roads. It objected that "A map of where these temporary roads will be located should also be included in the EA" (T10754), and also objected that "the Forest Service did not identify specific units." (T10821). Petitioner adequately presented this claim to the Service so as to allow it to rectify the alleged violation, as well as preserving it for appeal. Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 10th Cir. 2007).
In its Reply, Petitioner argues that its Petition for Review adequately preserved these claims, or in the alternative, that these issues relating to the location of logging units and temporary roads are so obvious that they were preserved for appeal without prior comment.
Objection of the Western Environmental Law Center, which includes Petitioner.
Objection by the Quiet Use Coalition, also part of the Western Environmental Law Center.
However, the Court concludes that Petitioner does not establish a deficiency of the EA based on these claims. The Court is tasked with determining whether the Service's methodology for the analysis is sound, not whether other methods may also work, Biodiversity Conservation All., 765 F.3d 1264, 1270 (10th Cir. 2014); and its role is not to decide the propriety of competing methodologies. Committee to Preserve Boomer Lake Park v. Department of Transp., 4 F.3d 1543, 1553 (10th Cir. 1993). A review of the process shows that the Service's methodology "had a rational basis and took into consideration the relevant factors." Utah Shared Access, 288 F.3d at 1212-13.
Colo. Envtl. Coal., 819 F.Supp. 2d 1193, which provides limited guidance as it involved mining, does not universally require site-specific analysis before implementation of the site-specific actions. Site-specific analysis is required only if the following factors are shown: (1) that the environmental impacts are reasonably forseeable, and (2) the agency will make an irretrievable commitment of resources. Id. at 1208.
Petitioner fails to establish the first factor — that the environmental impacts are reasonably foreseeable. Petitioner does not claim any such foreseeable impacts exist, rather it warns of unknown impacts based on the lack of detail in the EA. However, Respondents have adequately addressed the potential impacts by implementing the direction provided by the SRLA, undisputed herein as the best science available regarding lynx. The Service is also bound by the directives of the SRLA. The Court also notes that the court in Colo. Envtl. Coal., 185 F.3d at 1172, approved of the Service's use of the best science available without site-specific data to determine the impact of its action on lynx habitat.
The Court notes that Petitioner did not submit any alternative science. --------
The EA assumed that every acre of lynx habitat within the Project Area would be treated (T10575) and it provides detailed guidance regarding treatment prescriptions, consistent with the SRLA. (T10507-09; T10515-31). It quantifies the acres of lynx habitat that will be removed by pre-commercial thinning treatments, notes their location in prior clear-cut units, and explains how these treatments comport with the SRLA's standards. (T10578; T10651-62; T10267). The EA also specifies general locations as well as the relation of reserve areas to lynx habitat, including: 1) retaining habitat with greater than 35 percent dense horizontal cover, 2) leaving 10 percent of thinning units uncut, and 3) providing a 200-foot wide travel corridor between clearcut units. (T10507).
The EA and DN also require a Forest biologist or other trained personnel to ensure that treatment units exclude high-quality habitat and are consistent with the design constraints. (T06526). The Service's use of the most recent LAU maps to analyze the Project's effects on lynx habitat adequately captured its effects. (T06581). The Service will survey each treatment unit to ensure consistency with the design criteria of the EA. FWS concurred with this analysis and its concurrence supported its status as reasonable. See Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310, 1327 (10th Cir. 2007) ("The FWS's acceptance of the validity of this methodology for analyzing effects under the ESA supports the conclusion that the methodology is hardly arbitrary.").
Accordingly, the exact location of treatment units was unnecessary to reach an informed conclusion that the Project will not have a significant impact on lynx. See Utah Shared Access, 288 F.3d at 1211 ("NEPA does not demand that every federal decision be verified by reduction to mathematical absolutes for insertion into a precise formula."). The Service's NEPA analysis for its preparation of its EA and DN/FONSI was neither arbitrary nor capricious.
2. The EA's Information About Lynx Denning Habitat
a. The Parties' Arguments
Petitioner next argues:
• the Service cannot properly evaluate the environmental impacts of the Project without first determining the lynx denning habitat before and after the Project activities;
• the Service ignored its request that it "disclose and analyze how much denning habitat" would be removed and would remain under the selected action Alternative, and whether the remaining habitat would be near suitable lynx foraging habitat (T10752); and
• any impact on denning habitat is detrimental, will last beyond 150 years, and Project mitigation activities would not create "quality denning habitat." (T10577).
Respondents again assert their reliance on the SRLA framework for evaluating the effects of a Project on lynx, arguing that consistency with the SRLA objectives ensures that the Project will "promote the development and retention of adequate amounts of denning habitat" (T11437). They contend that:
• the SRLA directs the Service to ensure that the LAUs contain enough primary and secondary habitat to support a female lynx, including denning habitat, without distinguishing between primary and secondary vegetation (T07068), so the analysis of the Project's effects on lynx habitat is in the aggregate. (T01071);
• the Service concluded that adequate habitat would remain in both LAUs to comply with the SRLA (T10577) and that the Project treatments were consistent with it. (T10650- 51);
• this analysis captures the Project effects (T10266) and complies with the SRLA guidelines regarding forage (10650) and denning habitat in a LAU (T10653); and
• the Service's methodology is sound and entitled to this Court's deference, citing Biodiversity Conservation Alliance v. United States Forest Serv., 765 F.3d 1264, 1270 (10th Cir. 2014).
b. The Court's Conclusion
The Court concludes that Petitioner does not establish a deficiency of the EA based on this claim. The Service obtained guidance from the SRLA in determining the relevant factors necessary to be addressed for a reasoned evaluation, and additional detail is unnecessary. See Utah Shared Access at 1213 ("NEPA requires that we review the record to ascertain whether the agency decision is founded on a reasoned evaluation of the relevant factors."). The SRLA sets forth the appropriate framework for evaluating the effects of a Project on lynx. It directs the Service to map out LAUs to ensure they contain enough primary and secondary habitat to support a female lynx, including denning habitat. It directs the Service to analyze projects based on their effects on mapped lynx habitat in the aggregate. (T01071). The Service quantified the amount of mapped lynx habitat that would be removed from each LAU and concluded adequate habitat would remain within both LAUs to comply with the SRLA. (T10577). The Service addressed denning habitat by leaving reserves (T10577, T10582) and 10 percent of any potential salvage of spruce-fir on the landscape as denning habitat. (T10594, T10653, T06301). The design thus complies with the SRLA guideline regarding course wood material in habitat. (T10653) (analyzing Guideline Veg G11).
Because lynx primarily den in "Engelmann spruce and subalpine fir stands in concave drainages or basins with dense horizontal cover and abundant coarse woody debris" (T06854), the Service generally excluded from treatment spruce-fir habitat (T10516), and habitat with dense horizontal cover. (T10507). The Service also attempts to promote foraging habitat by removing low-quality lodgepole pine stands adjacent to higher quality reserve areas. (T10576-7). Both LAUs will therefore continue to provide a mosaic of denning and foraging habitat, consistent with the SRLA. (T10266; T10650). Some denning habitat could be located in climax lodgepole pines stands targeted for removal (T10265) and would be removed "should it exist in clearcut areas" and likely take over 150 years to recover. (T10577). However, removal of such habitat will be incidental because it will generally be avoided. (T10265). Thus, the analysis measures the effects to denning habitat (T10266) without specifically quantifying it before and after the Project activities.
The Court also concludes that the Service's methodology is sound and entitled to deference, Biodiversity Conservation All., 765 F.3d at 1270, and that the EA's analysis of the lynx habitat was neither arbitrary nor capricious. See Utah Shared Access, 288 F.3d at 1213. ("An agency's decision to issue a FONSI and not prepare an EIS is a factual determination which implicates agency expertise and accordingly, is reviewed under the deferential arbitrary and capricious standard of review.")
3. The EA's Information About Lynx Winter Habitat
a. The Parties' Arguments
Petitioner contends that the Service violated its duty to disclose, analyze, and otherwise take a hard look at the environmental effects of its proposed actions. It argues that EA's failure to disclose the existing lynx winter habitat in the project area, the remaining habitat after the Project activities, and Project's other cumulative impacts on it render the EA and DN/FONSI arbitrary and capricious. Petitioner complains that the Service refused to disclose additional detail in response to its query about the effects of the Project on the "distinct" winter lynx habitat and on snowshoe hare habitat (T10751), and that the Service's claim that the design features of the Project would protect lynx winter habitat is unverifiable. (T10264).
Respondents argue that Petitioner has not shown the need for the Service to analyze the lynx winter habitat given its thorough analysis of the snowshoe hare habitat; that the lynx winter habitat and winter snowshoe hare habitat "are very closely associated" (T10264); and that snowshoe hare habitat appears to be a limiting factor for lynx. (T10568). Therefore, the Service designed the Project to exclude high-quality snowshoe hare habitat from treatment (T10264), consistent with the SRLA guidance for its maintenance (T10650), confirming that the proposed treatments would not have a significant impact on snowshoe hare habitat in either LAU. (T10576-83; T10651-52).
Petitioner replies that the Service failed to analyze the effects of the Project on lynx winter habitat by looking at its effects on snowshoe hare habitat.
b. The Court's Conclusion
The Court again concludes that Petitioner does not establish a deficiency of the EA based on this claim. The Service focused on maintaining high-quality winter snowshoe hare habitat, per the SRLA guidance. (T10650). This habitat, areas where dense horizontal cover exceeds 35 percent (T01149), is important because lynx appear to be limited by the amount of snowshoe hare. (T10568). Lynx focus their foraging in conifer habitats that support snowshoe hare. (T06851). The Service thus designed the Project to exclude high-quality snowshoe hare habitat from treatment based on the best available science, including studies by Squires et al. (T10264-5), which Petitioner recommended. (T10263). The Service confirmed that the proposed treatments would not have a significant impact on snowshoe hare habitat in either LAU, consistent with SRLA. (T10576-83; T10651-52). In other words, the Service will protect the lynx habitat by protecting snowshoe hare habitat.
Accordingly, the Service's focus on the snowshoe hare habitat satisfies its duty to take a hard look at the Project's impact on the lynx winter habitat, and its EA and DN/FONSI are neither arbitrary nor capricious. S ee Citizens' Committee to Save Our Canyons v. Krueger, 513 F.3d 1169, 1177-78 (10th Cir. 2008) ("The role of the courts in reviewing compliance with NEPA is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious.")
B. Necessity of an Environmental Impact Statement (EIS)
Petitioner further contends that NEPA requires the Service to prepare an EIS when it proposes a major federal action that may significantly affect the quality of the environment. It argues that the Forest Service must consider both the context and the intensity of the proposed action in determining whether or not to prepare an EIS. Petitioner claims that because the Service erred in determining that the Project "w[ould] not have a significant effect on the human environment," (T10722) due to several significance factors that indicate possible significant environmental consequences of the Project, the Service was required to perform an EIS. Because it failed to do, the DN/FONSI is rendered arbitrary and capricious.
1. Issue of Significant Direct and Cumulative Impacts
a. The Parties' Arguments
Petitioner first raises the issue that the sheer size of the components of the Project constitute significant direct and cumulative impacts. It notes the impact on up to 16,450 acres of land, including clear cutting 2,370 acres of forest, thinning 6,765 acres, and the creation of approximately 21 miles of temporary roads. Petitioner also argues that the Project will have significant direct and cumulative impacts to lynx and its habitat, noting that Project activities "would potentially degrade lynx habitat quality in the short term...." (AR T10582); that "increased horizontal cover" would not appear on the landscape for "50+ yrs" (T06503); and that lynx denning habitat would be removed or degraded for over 150 years. (AR T10577). Petitioner claims that the direct and cumulative effects of the Project indicate possible significant effects to the environment requiring an EIS.
Respondents disagree — asserting that the Record does not support the Petitioner's contention that the size of the Project equates to significant impacts. Respondents instead contend that the Project's size and it level of treatment is insignificant when evaluated within the context of the Leadville and Eagle-Holy Cross Ranger Districts and Lake and Eagle Counties (T10722; T10268). Citing to Decker v. U.S. Forest Service, 780 F.Supp.2d 1170, 1179 (D. Colo. 2011), they argue that the Project will not have a significant impact, as described in the EA. With respect to the roads, Respondents indicate that the Service will construct temporary roads only as needed and then decommission them. Respondents argue that the record demonstrates that the Service took the requisite "hard look" at its proposed actions and did not act arbitrarily in concluding that impact to lynx would be insignificant.
b. The Court's Conclusion
The Court agrees with Respondents. Petitioner has not established that an EIS is necessary. First, the size of a Project alone does not require an EIS. See Decker v. U.S. Forest Service, 780 F.Supp.2d 1170, 1179 (D. Colo. 2011) ("Even assuming that the project does impact a relatively large area, plaintiffs have not provided any support for the contention that an EIS is necessary when a project reaches a certain size."); Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 862 (D.C. Cir. 2006) ("[T]here is no categorical rule that sizable federal undertakings always have a significant effect on the quality of the human environment.") Next, the Project activities are not significant when compared to the area in which they will be undertaken. See Decker, 780 F.Supp.2d at 1179 (The project would treat only about 2.6% of the species in the district."). The Project would treat 5.4 percent of the Leadville Ranger District (1.34% of the San Isabel National Forest) and less than 0.1 percent of the Holy Cross Ranger District (T10268) over a ten-year timeframe. The 2,370 acres of clear cuts would be spread across the entire Project Area over a ten year period (T10576-77), in units not exceeding 40 acres. (T10507). The 6,795 acres of thinning treatments will avoid high quality lynx habitat, will not completely render any lynx habitat unsuitable, and may increase foraging opportunities for snowshoe hare, benefiting lynx. (T10578). The Service will construct temporary roads only where needed, limit their use, and decommission them after use. (T10517-18). The Project treatment will not have a significant impact on lynx, as described in the EA. In sum, the record demonstrates that the Service took the requisite "hard look" at the Project through the EA and did not act arbitrarily or capriciously in preparing it.
2. Issue of Areas with Unique Characteristics
a. The Parties' Arguments
Petitioner also claims that an EIS must be prepared because the Project will have significant impacts to historic resources and ecologically critical areas. Petitioner notes that the Project would be implemented in habitat for the federally-listed lynx, the Colorado-listed wolverine, and Rocky Mountain elk (T10567; T10571), which it describes as "ecologically critical areas." Petitioner reiterates that Project would impact the lynx habitat types, some for decades. Id. It also notes that the Project activities would occur adjacent to two federally-designated wilderness areas, and near the Continental Divide National Scenic Trail ("CDNST"), the Colorado Trail, and Colorado Roadless Areas. (T10514; T10560-61). Petitioner claims that the Project would impact these areas and six historic 10th Mountain Division huts. (T02366-68).
The Respondents respond that the analysis provided an adequate basis for the Service's conclusion that areas with unique characteristics would not be significantly impacted, citing Utah Shared Access, 288 F.3d at 1214. They note that the Service considered the unique characteristics of the Project Area, that treatments will not occur in Wilderness (or Colorado Roadless Areas), and that thinning treatments will be sensitive to visual quality objectives. As such, the EA adequately analyzed these criteria and concluded there are no significant impacts to the unique areas.
b. The Court's Conclusion
The Court again agrees with Respondents and concludes that Petitioner has not established that an EIS was necessary based on this claim. The Service considered the unique characteristics of the Project Area, including the lynx habitat, the CDNST, Roadless Areas, and Wildernesses. (T10561-64; T10575-84). The design constraints imposed on the Project protect high quality lynx habitat. (T10582). Treatments will not occur in Wildernesses (or Colorado Roadless Areas) and any thinning treatments adjacent to the CDNST will be "feathered" to ensure visual quality objectives are met. (T10530-31). The EA analyzed these criteria and concluded there are no significant impacts to the CDNST or any other unique areas. (T10562-64; T10723). It thus provided an adequate basis for the Service's conclusion of its FONSI that the potential effects of the Project to areas with unique characteristics would not constitute a significant impact. Utah Shared Access, 288 F.3d at 1214.
3. Issue of Highly Uncertain and Highly Controversial Effects
a. The Parties' Arguments
Petitioner argues that the Service must prepare an EIS because the effects of the Project are "highly controversial" or "highly uncertain or involve unique or unknown risks." Petitioner specifically claims that
• the Service's failure to determine the specific locations of the logging activities renders the Project "highly controversial" because it creates "a substantial dispute as to the size, nature, or effect of the action," citing Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1229 (10th Cir. 2002);
• the Service's lack of specific locations creates uncertainty as to the Project's impact on lynx habitat, which an EIS could resolve; and
• the absence of specific locations refutes the conclusion of the DN/FONSI that the "decision has no known effects on the human environment that are highly uncertain" (T10724).
Respondents respond that the Service's analysis, and its conclusion that there are no significant impacts with FWS' concurrence, rebuts any claims of uncertainty or controversy regarding the impacts of the Project. They argue that:
• the Service created sufficient detail about the Project to determine its compliance with the SRLA and that it will sustain adequate lynx habitat throughout both LAUs;
• the Service provided sufficient information to the public such that the Service received ample public comment; and
• an EA is proper under the circumstances.
b. The Court's Conclusion
The Court concludes that Petitioner has not established that an EIS is necessary based on this claim. Mere opposition to a Project does not render it highly controversial; rather it is a wide disparity regarding the size, nature, or effect of the Project that does so. Middle Rio Grande Conservancy Dist., 294 F.3d at 1229. Herein, the Service generally quantified the lynx habitat in the Project Area, detailed the proposed treatment criteria, and quantified the maximum amount of lynx habitat that could be treated over the more than ten-year life of the Project. (T10507-10; T10573- 86). There is no wide disparity regarding these items. Instead Petitioner complains that the Service does not state more detailed effects. But Petitioner does not quantify any disagreement with the EA's statement of the effects of the Project, nor does Petitioner disagree with the EA's statements of compliance with the SRLA. Petitioner's lack of any particularized disagreement with the EA's statements of effects undermines its allegations of uncertainty and controversy, especially since the Service implemented a conservative methodology in preparing the EA. FWS also concurred with the Service's conclusion that there would be no significant impacts on lynx, which supports the position that the Project is not uncertain or controversial. See Rucker v. Willis, 484 F.2d 158, 162 (4th Cir. 1973) (Noting that "[i]t is significant that no federal...agency charged with expertise in these matters expressed any objection" in finding that the proposed agency action was not controversial."). Thus, the Service properly exercised its discretion to forego an EIS and conserve its resources. See Utah Shared Access, 288 F.3d at 1213 ("By conducting an EA, an agency considers environmental concerns yet reserves its resources for instances where a full EIS is appropriate.").
4. Issue of Significant Effects to Threatened Species
a. The Parties' Arguments
Petitioner argues that the presence of any effects to a species listed as threatened under the ESA, in conjunction with other factors, requires the Service to prepare an EIS. It argues that the Service's determination that the Project may affect lynx (although "not likely adversely affect") (T06504), suffices to support this argument.
Respondents assert that none of the significance factors require an EIS. They argue that:
• the Service's decision was based on a consideration of the relevant factors, and that Petitioner made no showing that the Service's FONSI constituted "a clear error in judgment," Utah Shared Access All., 288 F.3d at 1214;
• the Project comports with the SRLA in that, "[t]he effects to Canada lynx would be minimal, insignificant (immeasurable and would not reach the level of take), and discountable (extremely unlikely to occur)," (T10583); and
• the Service reasonably concluded that there are no significant impacts to lynx warranting an EIS. Id.
b. The Court's Conclusion
The Court agrees with Respondents and concludes that Petitioner does not establish that an EIS was necessary based on this claim. As described above, the Service considered the relevant factors in arriving at its FONSI on lynx. The Service was to assess "[t]he degree to which the action may adversely affect an endangered or threatened species . . . ." 40 CFR § 1508.27(b)(9). However, an EIS is not required even where the loss of some of a threatened species is anticipated. Greater Yellowstone Coalition v. Flowers 359 F.3d at 1276. The Project comports with the SRLA, is not expected to result in the incidental take of lynx and is projected to not likely affect it adversely. (T10583). Thus, the Service reasonably concluded that there are no significant impacts to lynx warranting an EIS. Id.
5. The Issue of Consideration of Reasonable Alternatives
a. The Parties' Arguments
Petitioner argues that:
• the Service violated its duty to "[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives ... eliminated from detailed study, briefly discuss the reasons for their having been eliminated," 40 C.F.R. § 1502.14(a);
• the EA included only two action alternatives, neither of them palatable to it: Alternative 1 because it contains the larger amount of acres to be treated, and Alternative 2 because it contains a larger number of acres that would be clearcut (T10748); and
• the Service did not consider its numerous suggested alternatives in detail, did not explicitly reject them as unreasonable or impractical, or even discuss them, all in violation of 36 C.F.R. § 220.7(b)(2)(i), which requires the Service to consider other reasonable alternatives when "there are ... unresolved conflicts concerning alternative uses of available resources," which it claims are present here. It argues that the Service should have at least explained why it did not consider Petitioner's proposed alternatives, citing 40 C.F.R. § 1502.14(a), and that therefore the EA is inadequate, citing Dine CARE v. Klein, 747 F.Supp.2d 1234, 1256 (D.Colo. 2010).
In response, Respondents contend that:
• 42 U.S.C. § 4332(E) requires federal agencies to address appropriate alternatives to recommended courses of action but that the Service only needs set forth those alternatives necessary to permit a reasoned choice;
• an agency's duty to consider alternatives is lower in an EA than in an EIS;
• the EA sets forth three alternatives which, according to Colo. Envtl. Coal., 185 F.3d at 1174, is an adequate range that permitted a reasoned choice consistent with the purpose of the Project, complied with NEPA, and was "sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned";
• the Service satisfied the requirements for an EA when it considered two action alternatives that enabled it to analyze impacts of the Project on lynx habitat and discarded a no-action alternative as inconsistent with the purpose and need of the Project (T10271); and
• the Service complied with NEPA by modifying the Project for high quality lynx habitat and reserve areas in response to public comments. (T11036-7).
b. The Court's Conclusion
The Court concludes that Petitioner has not established that an EIS was necessary based on the alleged lack of alternatives. Initially, the Court notes that 40 C.F.R. § 1502.14(a), on which Petitioner relies for this claim, regulates an EIS, not an EA as the Service prepared here. In addition, Dine CARE, 747 F.Supp.2d at 1256, on which Petitioner relies is distinguishable in that the agency therein adopted an alternative that had not been explicitly considered in the EA process, id. at 1255-6. 42 U.S.C. § 4332(E) requires an agency to address alternatives to the recommended courses of action. However, the Service need address "only those alternatives necessary to permit a reasoned choice," Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1160 (9th Cir. 1998), and not any that "it has in good faith rejected as too remote, speculative, or . . . impractical or ineffective," Utah Envtl. Cong., 439 F.3d at 1195. The Service has a lower duty to consider alternatives in preparing an EA than an EIS. Greater Yellowstone Coal., 359 F.3d at 1278-79.
The purposes and needs of the Project include the creation of improved forest conditions and the improvement or maintenance of habitat for endangered species, including lynx. (T10502). The Service therefore developed three alternatives, sufficient for a comparative analysis of the effects of the proposed action. (T10506-31).
The Service considered and rejected Petitioner's suggestion of excluding all lynx habitat from treatment within the no-action alternative, as inconsistent with the purpose of the Project. (T10271). The Service rejected Petitioner's suggestion to not construct any new roads (T10245), also as inconsistent with the purpose of the Project because "[a]pproximately 40-50% of the project area would not be accessible if temporary roads were not allowed." (T10245). The Service thus had no obligation to address these suggestions in detail and reasonably excluded them from detailed consideration. Custer Cty. Action Ass'n v. Garvey, 256 F.3d 1024, 1041 (10th Cir. 2001).
The Service also considered two action alternatives that proposed different levels of treatment in lynx habitat. (T10584) (Alternative 2 would have "higher levels and degrees of effects" on lynx habitat than the proposed action.) These alternatives enabled the Service to analyze impacts on lynx habitat and reach an informed decision, thereby satisfying NEPA. Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1031 (10th Cir. 2002) (an EIS need not consider a proposed alternative that falls within the range considered by the agency). In response to public comments, the Service modified the design constraints to further limit treatment of mapped lynx habitat. (T11036; T02783). For example, the Service modified the Project design to exclude high quality lynx habitat from treatment units and to retain reserve areas. (Compare, T02795 with T10507-08). The Service assessed the action alternatives and concluded that neither would cause a significant environmental impact.
In sum, the range of alternatives was consistent with NEPA and "sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned." Colo. Envtl. Coal., 185 F.3d at 1174 (citing Pueblo Council, 975 F.2d at 1444). The Service considered alternatives consistent with the purpose and need of the Project, and selected an action that protects the lynx habitat (T10507-10), and promotes future lynx habitat. (T10576; T10270). These alternatives satisfied NEPA's requirements for an EA. Utah Envtl. Cong., 439 F.3d at 1195.
IV. CONCLUSION
For these reasons, the Court concludes that that the Agency actions were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and that the Respondents did not violate NEPA. Accordingly, the Court AFFIRMS the Agency actions. DATED: July 25, 2017
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge