WildEarth Guardians v. U.S. Fish and Wildlife, 10th Cir. (2015)
WildEarth Guardians v. U.S. Fish and Wildlife, 10th Cir. (2015)
Elisabeth A. Shumaker
Clerk of Court
the EPA determined the cleanup was complete. See id. 3175(a). Importantly,
the Rocky Flats Act set aside a piece of land along the Flatss border to be made
available for transportation improvements. See id. 3174(e)(1)(A). To facilitate
the transportation improvements, the Rocky Flats Act provided that, [o]n
submission of an application meeting certain criteria not relevant to this appeal,
[Energy], in consultation with the [Service], shall make available land along the
eastern boundary of Rocky Flats for the sole purpose of transportation
improvements along Indiana Street. Id. The transfer was to take place within a
month of the EPA certifying the cleanup as complete. Id. 3175(a)(2), (3).
Pursuant to the Rocky Flats Act, Energy transferred the Flats to the Service
when the EPA issued its certification in 2007. Not long after, Energy and the
Service mutually decided that the applications for the transportation
improvements were the Services to consider, in consultation with Energy. And
so it was that the Service ended up giving the green light to the exchange
underlying this appeal, with Energys ancillary approval. In that exchange, the
Service engineered a complicated deal amongst a number of different parties in
which it added some land to the refuge but transferred a roughly 300-foot-wide,
100-acre strip of land to a consortium of local governments that planned to
construct a parkway as part of a mostly-completed beltway encircling the Denver
metropolitan area.
The Prebles Meadow Jumping Mouse (sometimes, the mouse) is a
5
threatened species with critical habitat in the corridor. Prior to its final approval
of the land exchange, and pursuant to the ESA, the Service issued two biological
opinions on the potential consequences of the exchange to the mouse. The
product of those opinions was a determination that the exchange would not
jeopardize the continued existence of the mouse or adversely modify its critical
habitat.
In addition to the ESA, NEPA imposed on the Service various obligations
regarding the exchange. Most relevant here, NEPA directs federal agencies to
prepare an environmental impact statement (EIS) whenever they undertake
major Federal actions significantly affecting the quality of the human
environment. 42 U.S.C. 4332(C). To determine whether the statutory
conditions for preparation of an EIS are present, an agency generates an
environmental assessment (EA). See 40 C.F.R. 1501.4(b). If the EA leads to
the conclusion that no EIS is necessary, the agency creates a finding of no
significant impact (FONSI). See id. 1501.4(e). The Service in this case
issued an EA and a FONSI rather than an EIS. After the EA was circulated for
public comment, the exchange went ahead as planned.
Displeased by the land exchange, Appellants sued in federal district court,
challenging the Services actions on three grounds: (1) they violated the Rocky
Flats Act; (2) they violated NEPA; and (3) they violated the ESA. The district
court rejected all three claims and upheld the exchange. Appellants timely
6
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Our deference to
the agency is more substantial when the challenged decision involves technical or
scientific matters within the agencys area of expertise. Natl Park Serv., 703
F.3d at 1183.
III
Appellants challenge the Services actions on three statutory bases:
specifically, the Rocky Flats Act, NEPA, and the ESA. Because they fail to show
violations of any of these Acts, we affirm.
A
Appellants first contend that the Service lacked the authority to convey the
corridor under the Rocky Flats Act. Constrained by our deferential standard of
review, we uphold the Services authority.
1
We must first ascertain the appropriate framework for assessing the
Services power. The APA directs courts to set aside agency actions that are
taken in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right. 5 U.S.C. 706(2)(C). Because of this provision, an essential
function of our review under the APA is determining whether an agency acted
within the scope of its authority. Copar Pumice Co. v. Tidwell, 603 F.3d 780,
801 (10th Cir. 2010). If it is otherwise appropriate, we apply the test established
by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837
8
(1984), when asking whether an agency has acted within its authority. See Pub.
Lands Council v. Babbitt, 167 F.3d 1287, 129394 (10th Cir. 1999); see also Iowa
League of Cities v. EPA, 711 F.3d 844, 876 (8th Cir. 2013) (Appellate review
under APA section 706(2)(C) proceeds under the familiar Chevron framework.).
As a preliminary matter, Appellants insist that it is not otherwise
appropriate to apply Chevron because the Rocky Flats Act is not administered
by the Service. See Berneike v. CitiMortgage, Inc., 708 F.3d 1141, 1147 (10th
Cir. 2013) (When reviewing an agencys construction of a statute it administers,
we apply the well-known, two-step analysis articulated in Chevron . . . .
(emphasis added)). Its argument to that effect is limited to the contention that
Congress in the Rocky Flats Act did not delegate administration to the Service,
but rather regulate[d] the Services actions and obligations concerning Rocky
Flats, and those of Energy. Aplts. Opening Br. at 19.
The cases that Appellants cite 3 do not draw any distinction between statutes
that regulate an agency and those that are administered by one. Indeed, it
would be odd if the law did draw such a distinction, as any statute that an agency
administers necessarily regulates that agency to some extent, at least in the sense
that it imposes various obligations on the agency and instructs it to take various
actions. In the Rocky Flats Act, Congress imposed a number of obligations on
City of Arlington v. FCC, --- U.S. ----, 133 S. Ct. 1863 (2013), and
Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009).
9
both Energy and the Service, and provided them a wide latitude in how they
fulfilled many of those obligations. That is sufficient to defeat Appellants false
dichotomy and to apply the Chevron framework. 4
2
The Chevron test requires us to ask first whether Congress has directly
spoken to the precise question at issue. Chevron, 467 U.S. at 842. If it has,
that is the end of the matter and we do as instructed by Congress. Id. If, on the
other hand, the statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agencys answer is based on a
permissible construction of the statute. Id. at 843. Our inquiry must begin, then,
with this question: Did Congress directly address the matter of whether the
Service could convey the corridor? Focusing on the language of the statute, as we
must, see Bd. of Cnty. Commrs v. EEOC, 405 F.3d 840, 844 (10th Cir. 2005), we
conclude that it did not. One provision of the Rocky Flats Act states that [o]n
make the land available. 6 Regarding this question, the Rocky Flats Act is silent;
therefore, we turn to step two of Chevron.
3
Thus the question becomes whether the agencys answer is based on a
permissible construction of the statute. Chevron, 467 U.S. at 843. An agency
interpretation is permissible where it is not arbitrary, capricious, or manifestly
contrary to the statute. Berneike, 708 F.3d at 1148 (quoting Chevron, 467 U.S.
at 84344).
a
Most saliently, preventing Appellants from showing that the Services
answer is not permissible are two of the oldest and most established canons of
statutory construction: (1) effectuating the intent of Congress; and (2) taking the
statutory language in context. See United States v. Handley, 678 F.3d 1185, 1189
(10th Cir. 2012) (It is our primary task in interpreting statutes to determine
[C]ongressional intent . . . . If the statutes plain language is ambiguous as to
Congressional intent, we look to the legislative history and the underlying public
policy of the statute. . . . When considering the language employed by Congress,
we read the words of the statute in their context and with a view to their place in
the overall statutory scheme . . . . (alteration in original) (internal quotation
marks omitted)); see also Antonin Scalia & Bryan Garner, Reading Law: The
Interpretation of Legal Texts 56 (2012) ([I]t can be said more generally that the
resolution of an ambiguity . . . that achieves a statutes purpose should be favored
over a resolution that frustrates its purpose.); id. at 167 (Context is the primary
determinant of meaning.). These guidelines strongly militate in favor of the
Services authority to convey the land.
i
First, Congress clearly passed the Rocky Flats Act with the intent, in part,
to relieve the burden on transportation in the area. Indeed, there is no other
conceivable reason why it included the provision, and Appellants do not propose
one. Keeping that congressional interest in mind, Appellants construction of the
Rocky Flats Act clearly thwarts it. As Appellants see it, the Rocky Flats Act
gives Energy the authority to convey the corridor for transportation improvements
until the area is fully clean and a refuge (that is, until the area is in such a
13
14
had the land because of the nuclear facilities it once contained, the remnants of
which required removal; this removal work was a core element of Energys
operations. See United States v. Manning, 527 F.3d 828, 839 (9th Cir. 2008)
(discussing Energys role in the nationwide management of nuclear waste).
Under the legislative scheme, it only stands to reason that the Service would take
control of the land and its disposition when it becomes a refuge, because
managing refuges is firmly within the Services bailiwick. See 16 U.S.C.
668dd(a)(1) (directing the Service to administer federal refuges). The scheme is
further elucidated by the fact that the Rocky Flats Act directs Energy to retain
jurisdiction only over facilities related to the continuing cleanup efforts. See
RFA 3175(d). Put simply, the Rocky Flats Act acknowledges that Energy
should take care of energy-related matters and the Service should take care of
nature-related matters. 7
Appellants read an exception into the Rocky Flats Act that cannot be
squared with this common-sense administrative allotment. For under their
Aplts. App. at 386 (Agreement for the Exch. of Lands) (relying on the Refuge
Act); id. at 412 (Envtl. Assessment, prepared Dec. 8, 2011) (relying on the Fish
and Wildlife Act and the Refuge Act); id. at 514 (Response 105.17) (relying on
the Fish and Wildlife Act). Because Appellants only argument against the
Services authority under the Refuge Act and the Fish and Wildlife Act is
predicated on a misunderstanding of the record, we reject it for that reason alone.
See United States v. Yelloweagle, 643 F.3d 1275, 1284 (10th Cir. 2011) (noting
that we will not make arguments for a litigant).
Even were we to reach the substance of Appellants contention, we would
conclude that these additional authorities strengthen the Services position. A
provision of the Refuge Act authorizes the Service to [a]cquire lands or interests
therein by exchange . . . for acquired lands or public lands, or for interests in
acquired or public lands. 16 U.S.C. 668dd(b)(3). A similar provision of the
Fish and Wildlife Act provides that the Service shall take such steps as may be
required for the development, advancement, management, conservation, and
protection of fish and wildlife resources including . . . acquisition by purchase or
exchange of land and water, or interests therein. Id. 742f(a)(4). Given the
ambiguity of the Rocky Flats Acts plain language, the fact that the Service
enjoys the power to enter into land exchanges like this one as a general matter
bolsters the reasonableness of the Services view that it had the power to preside
17
over the exchange here. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
18485 (1988) (We generally presume that Congress is knowledgeable about
existing law pertinent to the legislation it enacts.). 9
4
On a final point, we directed the parties to submit supplemental briefs on
the potential bearing that RFA 3175(d)(1)(B) has on the Services authority to
convey the corridor. Having considered the additional arguments on that
question, we determine that the provision does not affect the analysis set forth
above.
According to this provision,
[t]he transfer required by subsection (a) shall not include, and
[Energy] shall retain jurisdiction, authority, and control over, the
following real property and facilities at Rocky Flats: . . . [a]ny
real property or facility to be used for any other purpose relating
to a response action or any other action that is required to be
carried out by [Energy] at Rocky Flats.
9
At oral argument, Appellants averred that the Refuge Act and the
Fish and Wildlife Act mandate different procedures that the Service was required
to comply with if it intended to use them. Appellants did not make this argument
in their briefs, so we decline to consider it. See United States v. Rutland, 705
F.3d 1238, 1247 n.2 (10th Cir. 2013) ([W]e do not address arguments raised for
the first time at oral argument.). In any event, we are not holding that the
Service did or did not follow all of the statutory prerequisites for relying on the
Refuge Act and the Wildlife Act; we are holding only that the Acts establish the
Services authority to organize similar deals, that the Service did invoke the Acts
as part of its authority during the administrative process (regardless of whether it
observed all of the technicalities articulated by the Acts), and that the Service is
therefore now entitled to cite the Acts to support the reasonableness of its
statutory interpretation of the Rocky Flats Act.
18
20
21
For our purposes, the pivotal point is not how accurate the Services listing of
responsibilities is; rather, it is whether it is reasonable to infer that Congress
could have been concerned about the possibility that Energy might have tasks to
perform at Rocky Flats that were not necessarily enveloped by the term response
action, as the RFA has defined it. And we think that inference is quite
reasonable.
In that regard, the transformation of Rocky Flats from a pollution-plagued
former nuclear-weapons operation into a national refuge was an enormous
undertaking that lasted decades and involved extensive collaboration between
numerous state and federal agencies. Energy played a major role in that effort, as
it had managed the land for many years prior. Even as Congress provided for the
transfer of much of the area from Energy to the Service, it obviously foresaw a
continued role for Energy, for it spelled out a number of duties Energy had left to
discharge. In light of these facts, the proposition that it was possible that Energy
might have responsibilities relating to Rocky Flats that were not sufficiently
encompassed by the term response actions is, in our opinion, irrefutable.
The remaining question, then, is whether making the corridor available can
be regarded as falling into this category along with any other matters outside the
response action bucket. We do not believe that it can. The catch-all phrase
makes good sense as a precautionary measure to capture any duties Congress had
22
not specifically foreseen falling upon Energy but that Energy would need to
perform. It makes far less sense as a reference to a specific issuemaking the
corridor availablethat Congress not only foresaw but also addressed at some
length in the RFA itself. Thus, we reject Appellants contention that the catch-all
or any other action clause of 3175(d)(1)(B) refers to the corridor and, more
specifically, making it available.
It is helpful to place the foregoing analysis within the context of Chevron.
For 3175(d)(1)(B) to alter the outcome, we must find that it is either (1) an
unambiguous directive prohibiting the Service from conveying the corridor; or (2)
evidence of congressional intent sufficient to render the Services interpretation
unreasonable. Neither finding is justified. Far from being unambiguous,
3175(d)(1)(B) speaks in extraordinarily broad, vague language that has no
obvious or explicit connection to the corridor, or to the Services powers with
respect to the corridor. As for Chevron step two, given the many aforementioned
reasons for concluding that the Services interpretation is reasonable, we do not
believe that 3175(d)(1)(B) can establish its unreasonableness.
For all of the reasons discussed above, we reject Appellants argument that
the Service lacked the authority to convey the corridor under the Rocky Flats
Act. 10
10
B
Appellants believe the Service violated NEPA with respect to three main
factual areas: (1) contaminated soils; (2) air pollution; and (3) the Prebles
Meadow Jumping Mouse. They do not adequately show a NEPA violation in any
of these areas.
1
In NEPA, Congress codified rules designed to focus[] both agency and
public attention on the environmental effects of proposed actions and thereby
facilitate[] informed decisionmaking by agencies and allow[] the political
process to check those decisions. N.M. ex rel. Richardson v. Bureau of Land
Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). The Act does so in two ways: First,
it places upon an agency the obligation to consider every significant aspect of the
environmental impact of a proposed action. Second, it ensures that the agency
will inform the public that it has indeed considered environmental concerns in its
10
(...continued)
Flats Act to endow Energy with the exclusive authority to convey the corridor.
However, the Services statements that Appellants point to in making their case
for agency inconsistency were all either made before the Flats was transferred to
the Service and established as a refuge, or simply recite the indisputable fact that
the Rocky Flats Act gave Energy the authority to convey the land before the
establishment of the refuge. The statements are therefore entirely irrelevant to
the question of whether the Service had the authority to transfer the land after it
assumed administrative jurisdiction over it, and that is the only question before
us. Thus, assuming arguendo that they are legally relevant, Appellants claims of
agency inconsistency have no factual basis in the record.
24
25
federal projectis necessary. Spiller v. White, 352 F.3d 235, 237 (5th Cir.
2003) (quoting Sabine River Auth. v. U.S. Dept of Interior, 951 F.2d 669, 677
(5th Cir. 1993)) (internal quotation marks omitted).
If the EA leads to the conclusion that no impact statement is necessary, the
agency also creates a FONSI, 40 C.F.R. 1501.4(e), a document . . . briefly
presenting the reasons why an action . . . will not have a significant effect on the
human environment and for which an [EIS] therefore will not be prepared, id.
1508.13.
The Service in this case issued an EA and FONSI rather than an impact
statement, a decision Appellants contest.
2
An agencys decision to issue a FONSI and not prepare an EIS is a factual
determination which implicates agency expertise. Greater Yellowstone Coal. v.
Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004) (quoting Utah Shared Access
Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002)) (internal
quotation marks omitted). We therefore ask whether the agency acted arbitrarily
and capriciously in concluding that the proposed action will not have a significant
effect on the human environment. Id. (quoting Davis, 302 F.3d at 1112)
(internal quotation marks omitted). As a general principle, the judiciarys role in
the NEPA context is merely to ensure that the federal agency takes a hard look at
26
27
potentially significantly affects the quality of the human environment because its
construction will release dangerous levels of plutonium. They therefore assert
that the Service was compelled to conduct an EIS concerning plutonium.
In defense of its decision not to conduct a full-blown EIS with regard to
plutonium, the Service relied (and continues to rely) on assurances it received
from the EPA. More specifically, in 2006 the EPA certified that conditions in the
area where the corridor would be situated were acceptable for unrestricted use
and unlimited exposure. Aplts. App. at 132 (Corrective Action Decision,
prepared Sept. 2006). 11 Five years later, at the Services requestand prior to its
decision to enter into the land exchangethe EPA clarified that this clearance
applied to the construction of the proposed parkway as well.
In their opening brief, Appellants challenge the EPAs advice as
inapplicable, because it was supposedly premised on the assumption that no soil
disturbance would take place, and thus did not account for the construction of a
parkway. Aplts. Opening Br. at 31. This is arguably true of the 2006 report, but
quite obviously not true of the 2011 letter, which explicitly addressed the
parkway construction and explicitly confirmed that such construction posed no
risk of exposing anyone to an unacceptable level of radioactive material.
11
to rely on the views of the appropriate Federal, State, and local agencies, which
are authorized to develop and enforce environmental standards. 42 U.S.C.
4332(C)(v). The statute does not limit itself to views of requisite formality,
and we are reluctant to insert language where Congress has elected not to. See,
e.g., Marchetti v. United States, 390 U.S. 39, 60 n.18 (1968) (noting that courts
should not insert words into statutes that their drafters omitted); see also
Biodiversity Conservation Alliance v. U.S. Forest Serv., 765 F.3d 1264, 1270
(10th Cir. 2014) (NEPA grants substantial discretion to an agency to determine
how best to gather and assess information.). Furthermore, the 2011 EPA letter is
reasonably read as a clarification and elaboration of the 2006 report; the letter
extrapolates from the 2006 findings to explain the risk to construction workers.
As such, it was reasonable of the Service to regard the letter as, in essence, a
continuation of the CERCLA process that the EPA had begun several years
earlier. Consequently, any difference in formality between the 2011 letter and the
2006 report is not dispositive, and certainly does not demonstrate any arbitrary or
capricious conduct on the Services part.
Appellants second objection to the 2011 letterthat its reasoning is
flawedis even less substantial. They complain that the letter equates a wildlife
refuge worker . . . with construction workers, even though the two are not
comparable. Aplts. Reply Br. at 12 (emphasis added). But the letter does no
30
such thing. In the 2006 report, the EPA had considered the health risks associated
with plutonium exposures of wildlife refuge workers, but had no occasion to
examine such risks as to construction workers. However, in reaching its
conclusion in the 2011 letter that the construction posed no risk of exposing
anyone to an unacceptable level of radioactive material, the EPA explained that it
took account of the difference between the two types of employeesinclud[ing]
the potential for greater rates of inhalation and ingestion of soil by the
construction workerbut determined that the differences are likely offset by
the much greater exposure duration for refuge workers, relative to construction
workers who would just be exposed for a few months. Aplts. App. at 527
(Letter from Carl Spreng to David Lucas, dated Sept. 21, 2011). The EPAs logic
is straightforward and comprehensible: although construction workers are likely
to face greater exposures to plutonium than wildlife refuge workers, they will
likely be exposed for much shorter periods of time and, therefore, the risks they
face are essentially comparable to those of wildlife refuge workers, whom the
EPA concluded faced acceptable levels of risk. We have no reason to doubt the
EPAs logic, nor to fault the Service for relying on it.
Finally, Appellants articulate a highly detailed criticism of the EPAs
conclusion based on the supposed areas that were cleaned and the supposed levels
of acceptable hazardous materials. Again, its criticism cannot be squared with the
31
contents of the 2011 letter. In the relevant section of the letter, the EPA indicated
that it was addressing dangers to construction workers insofar as they would be
working on a construction project related to a future land transfer at the eastern
edge of the site, as per provisions of the [Rocky Flats Act]. Aplts. App. at 527.
In other words, the EPA specifically had in mind the project Appellants are now
alleging would release a dangerous amount of radioactive material. And it
specifically rejected the allegation that Appellants advance. For us to now
second-guess its judgment and hold that the EPA was not in fact aware of the
terms of its own analysis would be to substitute our judgment for that of the
agencys, and that we may not do. Assns Working for Auroras Residential
Envt v. Colo. Dept of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998).
Recognizing the EPAs authority in the pollutants arena, the Service reasonably
consulted it and was given its approval to proceed. Simply put, the Service took a
hard look at the relevant environmental conclusions reached by an expert
agency, and we are in no position to disturb its decision with regard to soil
contaminants.
b
Appellants next discern NEPA violations in the Services failure to take a
hard look at ozone[, i.e., smog,] and nitrogen dioxide pollution, and in its
fail[ure] to support its conclusion that these air quality impacts will be
32
33
34
part to determine whether the level of detail that the Service offers regarding the
environmental effects of the parkways constructionhere, effects relating to
emissionsis reasonable. Seemingly, were the federal action the parkway
construction itself, rather than the land exchange, the Service would have had
access to a far more detailed actual construction plan than the hypothetical plan
that the Service had before it during the NEPA process. Such a plan would have
provided the foundation for a more extensive environmental analysis regarding
the parkways construction, including emissions.
All of this is enough to mean that the Service gets the benefit of the doubt
in relying on future regulation and compliance for a parkway that (at least at
material times) was not yet a reality. In this same vein, Intervenors 13 detailed
explication of the battery of state and federal environmental hoops the parkway
will have to jump through before it can come into being adds even further weight
to the Services approach here. At the end of the day, the only rejoinder
Appellants have is that [n]one of these studies or commitments were relied upon
in [the Services] decision-making documents, none are directly enforceable by
[the Service], and none were imposed . . . as conditions of the land exchange.
Aplts. Reply Br. at 10 n.5. But the Service did fundamentally rely on the
13
supposition that the parkway would have to obtain environmental clearances that
would ensure its compliance with the same laws and standards the Service itself
would have considered if it were directly approving the construction of the
parkway itself. See Klein v. U.S. Dept of Energy, 753 F.3d 576, 583 (6th Cir.
2014) (finding an EA sufficient, in part, based on its discussion of future
requirements the [proposed action] will have to meet to secure construction and
operation permits because those permits would need to be obtained before
construction and operation (and the resulting environmental impacts) could
begin).
It is also significant that Congress imposed on the transportation
improvement plan the requirement that it be included in the regional
transportation plan of the metropolitan planning organization designated for the
Denver metropolitan area. RFA 3174(e)(2)(B)(ii). This occurred with respect
to the parkway project. As required by federal law, the planning organization
verified that each of its undertakingsthe parkway includedwould meet federal
emissions standards. See 23 U.S.C. 134(i)(3). The Service was thus on solid
ground in relying on procedures for future environmental oversight, as Congress
specifically provided an important mechanism in that regard.
iii
Turning to Appellants next contention, they maintain that the Services
36
37
Dioxide, 75 Fed. Reg. 6474, 6520 (Feb. 9, 2010) (stating that initial [nitrogen
dioxide] designations would be promulgated by January 2012). What Appellants
needand what they completely lackis any authority or tenable argument on
why it was arbitrary or capricious for the Service to rely on the future
commitments of state and local entities in the absence of clear nitrogen dioxide
guidelines from the EPA. Given that void of argument and authority, their
nitrogen dioxide claim fails.
c
Appellants contend that the Service violated NEPA in its EA with respect
to its treatment of the Prebles Meadow Jumping Mouse in various ways, each of
which is discussed below.
i
In Appellants view, the Services discussion of the no action alternative
was deficient. Aplts. Opening Br. at 44 (capitalization removed). A no-action
analysis compare[s] the potential impacts of the proposed major federal action to
the known impacts of maintaining the status quo. Custer Cnty. Action Assn v.
Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001). Appellants begin this section of
their brief with the statement that NEPA requires agencies to evaluate a no
action alternative to provide an environmental baseline. Aplts. Opening Br. at
44 (citing 40 C.F.R. 1502.14(d)). Here, though, there was no such requirement.
38
We have explained that 1502.14 applies only to the EIS preparation process, not
to the preparation of EAs, and that a no-action analysis is therefore not
automatically necessary when an agency does only the latter. See W. Watersheds
Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1274 (10th Cir. 2013).
Even though the absence of a detailed No Action analysis by itself does
not render an EA and its resulting FONSI arbitrary or capricious, id. at 1274, a
plaintiff may in some circumstances demonstrate that the absence of a No Action
analysis compromised the EA so severely as to render the FONSI arbitrary and
capricious, id. at 1275.
The question of whether the Services no-action analysis passes muster
turns on the nature of the various parcels involved in the land exchange.
According to the terms of the exchange, the Service acquired the surface, sand,
and gravel rights to Section 16 (acquired from the State of Colorado) and all of
the land in Section 3 (acquired from Energy). With respect to these parcels,
Appellants first complain that [t]he agency failed to disclose the current status of
Mouse habitat on either section and thus the EA omits the benchmark against
which the Land Exchange can be judged. Aplts. Opening Br. at 4445. In fact,
the EA noted that section 16 contains some riparian habitat that is considered
suitable for [the] mouse, Aplts. App. at 457, and the draft EA that was
circulated for public comment described the land acquired in the
39
14
extinguished in the event the parcel was sold. Appellants do not dispute that
assertion. Thus, accepting this statement as true, the exchange did offer the
mouse a greater level of protection on Section 16. An agencys duty to inform
the public that it has indeed considered environmental concerns in its
decisionmaking process, Wyoming, 661 F.3d at 1236 (internal quotation marks
omitted), cannot plausibly be read to encompass environmental concerns that it
reasonably understands will not affect the bottom-line conservation calculus.
With those background points in mind, there is evidence in the
administrative record that the acquisition of Section 16 brought into the federal
governments control 104 acres of suitable mouse habitat. 15 In return, the Service
gave up approximately 12.4 acres of critical mouse habitat. Utilizing the highly
deferential standard that we must, W. Watersheds Project, 721 F.3d at 1273, and
trusting the Services expertise, Flowers, 359 F.3d at 1274, we uphold the
Services cost-benefit analysis.
ii
15
The Service does not contend that a precise assessment of how much
suitable mouse habitat Section 16 contains was circulated for public comment
prior to the execution of the exchange. But the draft EA that was circulated for
public comment clearly indicated that the corridor had 12.4 acres of critical
mouse habitat, and indicated that the land acquired in the exchangewhich
included Section 16contained land considered very important to the mouse.
Aplees. J. Supp. App. at 227. Thus, the Service considered and presented to the
public the essential thought process regarding the mouse that led it to accept the
exchange: that it was, in the totality of circumstances, better for the mouse, not
worse.
41
Lastly, Appellants assert that the Service violated NEPA by not specifically
addressing the acquired properties as mitigation measures for the exchange.
However, in our view, Appellants misunderstand the Services reasons for
discussing the acquired properties in the EA. They were not mitigation measures
at all. We begin by explaining the function of mitigation measures in the NEPA
setting.
An agency can decline to prepare an EIS even if it finds a potentially
significant impact so long as it also finds changes or safeguards in the project
sufficiently reduce the impact to a minimum. Hillsdale Envtl. Loss Prevention,
Inc. v. U.S. Army Corps of Engrs, 702 F.3d 1156, 1172 (10th Cir. 2012) (quoting
Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008)).
These changes or safeguards constitute mitigation measures in the EA context
and may negate the need to prepare an EIS. Id. However, an EA need only
explore mitigation measures where it acknowledges the possibility that the agency
action will cause environmental harm; the EA does so as a means of determining
the extent to which the harm may be balanced out. See, e.g., OReilly v. U.S.
Army Corps of Engrs, 477 F.3d 225, 234 (5th Cir. 2007) (discussing an EA that
listed mitigation measures because it also list[ed] the potentially significant
adverse impacts of the project). This stands to reason. An EA obviates the need
for an EIS when the agency finds that the action will not have a significant effect
42
43
44
45
46
See also Aplts. Opening Br. at 16 ([The Service] failed to issue the
mandatory [take statement] for the Land Exchange. (emphasis added)); id. at 53
(As detailed below, [the Service] had a mandatory duty to issue [a take
statement] for the Land Exchange.); id. at 56 ([The Services] Consultation
Handbook dictates that [a take statement] was mandatory in connection with the
Land Exchange.); id. (By not issuing [a take statement], [the Service] failed to
ensure the Mouse will be protected from the Land Exchange.); Aplts. Reply Br.
at 25 ([The Service] violated the [ESA] by not issuing an incidental take
statement. (capitalization removed)); id. (noting the Services failure to issue [a
take statement] for the Land Exchange); id. at 26 ([T]he ESA requires, in no
uncertain terms, that [the Service] issue [a take statement] for the Land Exchange
now.).
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48
the land exchange. We reject this contention. At the outset, we observe that
arguably the Service was not legally required to issue an incidental take statement
at all for the land exchange. This is because, in the course of issuing two
biological opinions indicating that the exchange would not jeopardize the
continued existence of the mouse or adversely modify its critical habitat, the
Service expressly stated that it anticipate[d] that the proposed land exchange will
not result in incidental take of the [mouse]. Aplts. App. at 365 (Biological Op.,
prepared Nov. 17, 2011).
The plain terms of the statute and regulations suggest that, at least where
there is no evidence that a take may occur, the Service need not issue an
incidental take statement. See Ariz. Cattle Growers Assn v. U.S. Fish & Wildlife
Serv., 273 F.3d 1229, 1241 (9th Cir. 2001) (endorsing the view that the plain
language of the ESA does not dictate that the [Service] issue an Incidental Take
Statement irrespective of whether any incidental takings will occur); 50 C.F.R.
402.14(g)(7) (noting that the Service is tasked with formulat[ing] a statement
concerning incidental take, if such take may occur (emphases added)); see also
Defenders of Wildlife v. U.S. Dept of Navy, 733 F.3d 1106, 112223 (11th Cir.
2013) (noting that because the biological opinion concluded that no take of listed
species is likely to occur from the agency action at issue, no incidental take
statement was required); cf. Ariz. Cattle Growers Assn, 273 F.3d at 124041
49
50
other than what they purport to be: incidental take statements pertaining to the
land exchange. 17 Consequently, we hold that even if the Service was required to
issue an incidental take statement with respect to the land exchange, Appellants
have not established on this record that the Service has not sufficiently done so.
Accordingly, we uphold the district courts judgment regarding Appellants ESA
claim. 18
17
D
Appellants seek leave to file a supplemental appendix. The Service
opposes the motion but asks, in the event it is granted, to be allowed to file its
own supplement. We conditionally allowed both parties to file their supplemental
submissions but reserved the right to exclude them. Upon further consideration,
we conclude that each of Appellants submitted documents could and should have
been included in their original appendix if they wanted to rely upon them. See
10th Cir. R. 30.1(A)(3) (The court need not remedy any failure of counsel to
provide an adequate appendix.). We accordingly deny Appellants motion to file
a supplemental appendix. As for the Service, its documents are only submitted in
response to Appellants, and since we are denying Appellants motion, we deny
the Services as moot.
IV
For the reasons stated, we AFFIRM the judgment of the district court,
18
(...continued)
was not arbitrary or capricious for the [agency] to postpone the issuance of an
incidental take statement, inter alia, because the corresponding incidental take
statement, which will pertain solely to operations on the [agency project], will
serve no purpose while the [project] is still in the installation phase and no
operations are actually occurring (emphasis added)). See generally Ctr. for
Biological Diversity v. Bureau of Land Mgmt., 698 F.3d 1101, 1126 (9th Cir.
2012) (applying the arbitrary-and-capricious standard while evaluating the content
of a take statement). Thus, to the extent Appellants could be understood to argue
that the terms of the incidental take statements are insufficient, they fail to show
that they are.
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53