WildEarth Guardians v. United States Fish & Wildlife Service

FILED
United States Court of Appeals
Tenth Circuit
April 17, 2015
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
WILDEARTH GUARDIANS; ROCKY
MOUNTAIN WILD; THE TOWN OF
SUPERIOR, a Colorado municipality,
Plaintiffs - Appellants,
and
CITY OF GOLDEN, COLORADO,
Plaintiff,
v.
UNITED STATES FISH AND
WILDLIFE SERVICE; UNITED
STATES DEPARTMENT OF THE
INTERIOR; S.M.R. JEWELL, acting Nos. 12-1508 & 12-1509
in her official capacity as Secretary of
the Interior; DANIEL M. ASHE,
acting in his official capacity as
Director of the United States Fish and
Wildlife Service; NOREEN WALSH,
acting in her official capacity as
Regional Director of the
Mountain-Prairie Region of the United
States Fish and Wildlife Service;
DAVID LUCAS, acting in his official
capacity as Rocky Flats National
Wildlife Refuge Manager,
Defendants - Appellees,
and
THE BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF JEFFERSON,
COLOARDO; CITY OF ARVADA;
JEFFERSON PARKWAY PUBLIC
HIGHWAY AUTHORITY;
COLORADO NATURAL RESOURCE
TRUSTEES OF THE STATE OF
COLORADO; THE BOARD OF
LAND COMMISSIONERS OF THE
STATE OF COLORADO,
Defendant Intervenors -
Appellees.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:11-CV-03294-PAB)
Neil Levine (James Jay Tutchton, WildEarth Guardians, Centennial, Colorado,
and Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, Timothy
Gablehouse and Melanie Granberg, Gablehouse Granberg, Denver, Colorado, with
him on the briefs), Grand Canyon Trust, Denver, Colorado, for Plaintiffs-
Appellants.
Mary Gabrielle Sprague (Robert G. Dreher, Acting Assistant Attorney General,
U.S. Department of Justice, Environment & Natural Resources Division,
Washington, DC; Andrew C. Mergen and Ellen J. Durkee, U.S. Department of
Justice, Environment & Natural Resources Division, Appellate Section,
Washington, DC, with her on the brief), U.S. Department of Justice, Environment
& Natural Resources Division, Appellate Section, Washington, DC, for
Defendants-Appellees.
Howard Kenison and Patrick G. Compton, Lindquist & Vennum LLP, Denver,
Colorado; Ellen G. Wakeman, Jefferson County Attorney, Writer Mott, Assistant
County Attorney, and Eric Butler, Assistant County Attorney, Jefferson County
Attorney’s Office, Golden, Colorado; Christopher K. Daly, City Attorney, and
Roberto Ramirez, Assistant City Attorney, City of Arvada City Attorney’s Office,
2
Arvada, Colorado; John W. Suthers, Attorney General, Daniel S. Miller, Senior
Assistant Attorney General, Edgar Hamrick, First Assistant Attorney General,
Jason King, Assistant Attorney General, and Heather Warren, Assistant Attorney
General, Office of the Attorney General, State of Colorado, Denver, Colorado, on
the brief for Defendant-Intervenors-Appellees.
Before HARTZ, HOLMES, and BACHARACH, * Circuit Judges.
HOLMES, Circuit Judge.
The U.S. Fish and Wildlife Service (“the Service”) conveyed to a
consortium of local governments a strip of land (“the corridor”) for the
construction of a parkway. Its decision was challenged on various environmental
grounds by several parties, including WildEarth Guardians, Rocky Mountain
Wild, the Town of Superior, and the City of Golden (collectively, “Appellants”).
The district court affirmed the Service’s actions, and Appellants brought their
claims here. They assert that the Service violated the Rocky Flats National
Wildlife Refuge Act (“the Rocky Flats Act” or “RFA”), the National
Environmental Policy Act (“NEPA”), and the Endangered Species Act (“the
ESA”). With jurisdiction granted by 28 U.S.C. § 1291, we affirm the judgment
*
The late Honorable William J. Holloway, Jr., United States Senior
Circuit Judge, was originally assigned to this case and heard oral argument on
November 20, 2013. Upon his death, the Honorable Robert E. Bacharach was
substituted on this panel. Judge Bacharach has reviewed the record and all the
pleadings filed in this matter, has listened to the recording created from the oral
argument hearing, and has fully participated in the ultimate resolution of this
case.
3
of the district court.
I
Rocky Flats (at times, “the Flats”) is comprised of roughly 6,200 acres in
Colorado. For a number of years the Department of Energy (“Energy”) and its
predecessor agency used the central part of the Flats to manufacture components
involved in nuclear weapons, while the remainder of the Flats sat idle. As a result
of the weapons work, some of the land became polluted by various hazardous
materials, including plutonium. In 1989, a large-scale cleanup operation began.
Recognizing the progress that had been made in the cleanup effort, Congress
passed the Rocky Flats Act in 2001. National Defense Authorization Act for
Fiscal Year 2002, Pub. L. No. 107-107, 115 Stat. 1012, §§ 3171–82 (2001), 16
U.S.C. § 668dd note. 1 Under the Rocky Flats Act, Energy was to manage the
central area of the Flats (the locus of the earlier nuclear activity) and the balance
of the Flats was to become a National Wildlife Refuge run by the Service, an arm
of the Department of the Interior. 2 See generally RFA §§ 3175–77.
The Rocky Flats Act further provided that Energy would transfer to the
Service administrative jurisdiction of the land marked for refuge status as soon as
1
Following the lead of the parties, we refer to sections of the Rocky
Flats Act, rather than the sections of the U.S. Code, and use the form “RFA § __”
where a full citation is needed.
2
Because the Service is the only branch of the Department of the
Interior that is relevant to this appeal, we refer to the Service even where other
materials relevant to this litigation refer to the Department as a whole.
4
the EPA determined the cleanup was complete. See id. § 3175(a). Importantly,
the Rocky Flats Act set aside a piece of land along the Flats’s 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 Service’s 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 Energy’s 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 Preble’s 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 Service’s 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
appealed, reviving the same three grounds.
II
We consider the appeal under the analytical rubric established by the
Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(2)(C) (providing that
the courts will set aside agency action taken “in excess of statutory jurisdiction”);
Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1008
(10th Cir. 2012) (applying the APA to a NEPA claim); Ctr. for Native Ecosystems
v. Cables, 509 F.3d 1310, 1320 (10th Cir. 2007) (applying the APA to an ESA
claim). Under the APA, we owe the district court’s determination no deference.
See Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1226–27 (10th Cir. 2011).
However, we may only set aside the Service’s actions if, as relevant to the
arguments here, it acted arbitrarily or capriciously, not in accordance with the
law, beyond its jurisdictional authority, or “without observance of procedure
required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
That test is met when an agency fails to consider “the relevant data” or fails
to put forth “a rational connection between that data and its decision.” WildEarth
Guardians v. Nat’l Park Serv., 703 F.3d 1178, 1182–83 (10th Cir. 2013). It is
also met when the agency “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.,
7
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 agency’s area of expertise.” Nat’l Park Serv., 703
F.3d at 1183.
III
Appellants challenge the Service’s 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 Service’s authority.
1
We must first ascertain the appropriate framework for assessing the
Service’s 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, 1293–94 (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 agency’s 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 Service’s “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
3
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 agency’s 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. Comm’rs 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
4
If Appellants mean to suggest that Chevron is inapplicable because
the case does not involve the Service’s “organic” statute, i.e., the law that actually
established the agency, they are mistaken in assuming that Chevron is always
limited to such circumstances. See NISH v. Rumsfeld, 348 F.3d 1263, 1267–72
(10th Cir. 2003) (applying Chevron to the Department of Education’s
interpretation of an act that was not its organic statute). On a similar note,
Appellants do not argue that the Service’s conveyance of the land falls outside
Chevron because it lacked the trappings of formal rule-making or adjudication,
see generally United States v. Mead Corp., 533 U.S. 218 (2001), so we do not
address that issue. They also decline to argue that Energy, and not the Service, is
entitled to deference regarding the implementation of the pertinent provisions of
the Rocky Flats Act. We therefore forgo any discussion of that point.
10
submission of an application meeting” certain criteria, “[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.”
RFA § 3174(e)(1)(A). Another section of the Act, which falls under the heading
“transfer of management responsibilities and jurisdiction over Rocky Flats,”
states that, “[s]ubject to the other provisions of this section, [Energy] shall
transfer administrative jurisdiction over the property that is to comprise the refuge
to the [Service].” Id. § 3175(a)(1).
Collectively, these provisions leave the crucial question here unanswered.
We know that Energy, at some point, has the authority to convey the land solely
for transportation purposes. And we know that, at a certain point, Energy will
transfer jurisdiction over the whole refuge 5 to the Service. What we do not know
from the statute’s plain language is whether the authority—indeed, the
obligation—to make the land available for transportation purposes switches to the
Service upon Energy’s transfer to the Service of jurisdiction over the refuge, or
whether, as Appellants maintain, that authority is extinguished upon this transfer
by Energy because Congress intended to vest only Energy with the authority to
5
In their opening brief, Appellants unequivocally took the position
that Congress placed the corridor within the refuge. See, e.g., Aplts.’ Opening
Br. at 20 (“Congress ensured the Corridor would not become a highway once it
became part of the refuge.” (emphasis added)). We therefore undertake the
following analysis on the basis of that premise.
11
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 agency’s 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 843–44).
a
Most saliently, preventing Appellants from showing that the Service’s
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
6
We recognize that there may be a third possibility: Energy retained
the ability to make the corridor available for transportation purposes even after
transferring jurisdiction over the land that would constitute the refuge, including
the corridor, to the Service. However, Appellants have eschewed this option, and
instead have consistently maintained that neither agency had the authority to
make the corridor available for transportation improvements after jurisdiction
over the land that included the corridor was transferred to the Service. See, e.g.,
Aplts.’ Opening Br. at 14 (“The . . . authority to convey the Corridor . . . was
limited and has now expired. . . . [T]his authority existed only so long as
[Energy] retained jurisdiction and the Corridor was not part of a National Wildlife
Refuge.”); id. at 20 (“The authority . . . to convey the corridor terminated when
the refuge was established.” (capitalization removed)); id. at 22 (“Now that the
Corridor is part of the Refuge, it must remain so.”). Thus, we need not entertain
this alternative explanation. And, in any event, the statute does not make pellucid
that Energy retained authority after the transfer, so this interpretation fails step
one of Chevron.
12
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 statute’s 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 statute’s 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
Service’s 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
condition that administrative jurisdiction over it may be transferred to the
Service), at which point no one has that conveyance authority and the corridor can
never be subject to transportation improvements. But Appellants offer no reason
why Congress would limit the possibility of transportation improvements to such
a narrow window (before the cleanup is completed) and then close it forever
thereafter. Such a system would certainly not further the congressional purpose
of allowing for long-term improvements to local traffic patterns.
ii
In a related fashion, a glance at the context of the Rocky Flats Act as a
whole illuminates congressional intent with respect to the more specific issue of
the administrative duties and rights imposed on Energy and the Service
respectively; the effect of this glance is to undermine Appellants’ reading of the
statute. It reveals that in the Rocky Flats Act, Congress intended for Energy to
handle energy-related matters and the Service to handle nature-related matters—a
reasonable and logical division of responsibilities.
Section 3174 of the Rocky Flats Act contains the provision regarding the
conveyance of the corridor. The very next section is entitled “transfer of
management responsibilities and jurisdiction over Rocky Flats,” and it begins by
stating that “[Energy] shall transfer administrative jurisdiction over the property
that is to comprise the refuge to the [Service].” RFA § 3175(a)(1). Energy only
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 Energy’s
operations. See United States v. Manning, 527 F.3d 828, 839 (9th Cir. 2008)
(discussing Energy’s 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 Service’s 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
7
Appellants’ best interpretive argument is that other provisions of the
Rocky Flats Act explicitly apply to both Energy and the Service, and this one
does not, thereby implying that only the former has the authority to convey the
corridor. See, e.g., RFA § 3174(c) (“Neither [Energy] nor the [Service] shall
allow the annexation of land within the refuge by any unit of local government.”
(emphases added)). Nevertheless, at best, this point shows that there are other
reasonable interpretations of the Act in addition to the Service’s. It does not
show that Appellants’ is the only plausible alternative. Under Chevron, we must
still therefore defer to the Service’s interpretation.
15
reading, Energy—and Energy alone—could convey the corridor for transportation
improvements. Yet, Appellants fail to explain why Congress would have wanted
long-lasting improvements only if a deal to effectuate these improvements could
be reached before the administrative hand-off occurred between Energy and the
Service. Moreover, managing such a project (and ensuring that it does not unduly
impair the refuge) clearly falls squarely within the Service’s administrative
responsibilities, as the Service is in charge of refuge-related matters. 8
b
In addition to the Rocky Flats Act, the Service argues that it had the
complimentary authority to convey the land under the National Wildlife Refuge
System Act (“the Refuge Act”) and the Fish and Wildlife Act. Appellants’ only
response is that the Service never invoked those Acts during the administrative
process and thus cannot avail themselves of them now. Although “[i]t is well-
established that an agency’s action must be upheld, if it all, on the basis
articulated by the agency itself,” State Farm, 463 U.S. at 50, Appellants are
simply wrong that the Service cited the Rocky Flats Act as its only authority. See
8
Appellants insist that our “interpretation would also render the
language in § 3174(e)(1)(A) meaningless.” Aplts.’ Opening Br. at 19. Not so.
As we read it, § 3174(e)(1)(A) made clear that Energy had the power to convey
the corridor before the refuge was established, whereas the Service was intended
to have the power afterwards. The provision therefore served a definite role,
albeit one that became irrelevant after the land was transferred from one agency
to the other.
16
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
Service’s 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 Service’s 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 Act’s 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 Service’s view that it had the power to preside
17
over the exchange here. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
184–85 (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 Service’s 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
Service’s 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
RFA § 3175(d)(1), (d)(1)(B) (emphasis added). Subsection (a), in turn, provides
that “[s]ubject to the other provisions of this section, [Energy] shall transfer
administrative jurisdiction over the property that is to comprise the refuge to the
[Service].” Id. § 3175(a)(1).
Appellants submit that this catch-all clause—“or any other action”—refers
to the corridor, as Energy was tasked with making it available for transportation
improvements. See RFA § 3174(e)(1)(A). Thus, as Appellants see it,
§ 3175(d)(1)(B) indicates that Energy was never supposed to hand over the
corridor to the Service. See Aplts.’ Supp. Br. at 6 (“Congress anticipated that
[Energy] would not transfer the Corridor to [the Service] for inclusion in the
Refuge.”). This, reason Appellants, “explains why Congress, in Section
3174(e)(1)(A), authorized only [Energy] to ‘make available’ the Corridor, and not
[the Service].” Id.
Notably, Appellants take the position that Energy “did not, in fact, retain
the Corridor” when it transferred to the Service administrative jurisdiction over
the land allocated for the refuge. Id. And, because Energy supposedly “missed
its opportunity to retain this property” by virtue of the transfer, it forfeited the
authority to convey the corridor for transportation purposes that it otherwise
would have had under the congressional grant of § 3175(d)(1)(B). Id.; see id.
(“Had [Energy] retained jurisdiction in accordance with Section 3175(d)(1)(B),
19
[Energy] could convey the Corridor for transportation improvements in
accordance with Section 3174(e)(1)(A).” (emphasis added)). Nevertheless,
according to Appellants, this transfer to the Service does not alter the fact that
Congress never intended for the Service to have jurisdiction over the corridor. Id.
at 7 (“The fact that [Energy] did not retain jurisdiction over the Corridor, or
convey it before the 2007 transfer, does not change the fact that [the Service]
never had authority under the Rocky Flats Act to engage in the 2011 Land
Exchange.”). We cannot accept Appellants’ argument.
We begin by explaining Appellants’ reasoning in greater detail. They
contend that “other than the various response actions and the duty to make
available the Corridor, there are no required actions for [Energy] at Rocky Flats.”
Aplts.’ Supp. Br. at 5. As a result, the “any other action” language “must involve
[Energy’s] requirement to make available the Corridor, or else the” phrase has no
significance and “that would violate the statutory construction principle to give
meaning to all provisions.” Id. Appellants’ argument proves too much. As they
acknowledge, “any other action” is a “catch-all clause.” Id. at 4. We find it
difficult to believe that Congress would use a highly generalized “catch-all
clause” to express its intent regarding a single, extremely specific issue—viz.,
making the corridor available for transportation improvements. Indeed, in the
Rocky Flats Act itself Congress issued detailed instructions regarding the
20
transportation improvements. See RFA § 3174(e). Consequently, it would be
rather surprising if Congress decided to set out its intent regarding the corridor at
length in one section and then in the next decided to use an abstract, amorphous
phrase to refer solely to the corridor. In other words, Congress knew how to write
“transportation improvements” in § 3174(e). Presumably, it knew how to write it
as well in § 3175(d)(1)(B), if indeed that is what it meant there too. But it did not
do so.
Contrary to Appellants’ view that making the corridor available was the
only action left for Energy that could be captured by the catch-all clause,
arguably another way that one might view the clause as related to the corridor is
if it refers to a larger category that includes actions concerning the corridor.
Recall that the “or any other action” clause is framed to cover Energy’s
undertakings at Rocky Flats aside from those related to “response actions.” RFA
§ 3175(d)(1)(B). The Rocky Flats Act defines “response action” with reference to
the Comprehensive Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601, and with reference to the Colorado Hazardous
Waste Act. See RFA § 3173(6). In its supplemental brief, the Service describes
other responsibilities that Energy “has had that are not fairly characterized as
‘response actions,’” such as the construction of dams and possibly actions
ancillary to its environmental clean-up duties. Aplees.’ Supp. Br. at 4 & Ex. 1.
21
For our purposes, the pivotal point is not how accurate the Service’s 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 issue—making the
corridor available—that 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 Service’s 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 Service’s powers with
respect to the corridor. As for Chevron step two, given the many aforementioned
reasons for concluding that the Service’s 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
Appellants observe that the Service earlier understood the Rocky
(continued...)
23
B
Appellants believe the Service violated NEPA with respect to three main
factual areas: (1) contaminated soils; (2) air pollution; and (3) the Preble’s
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 Service’s 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
decisionmaking process.” Wyoming, 661 F.3d at 1236–37 (quoting Forest
Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir. 2010))
(internal quotation marks omitted). The Supreme Court has made clear that
“NEPA itself does not mandate particular results, but simply prescribes the
necessary process.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
350 (1989).
Under NEPA, federal agencies must prepare an EIS whenever they
undertake “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). To determine whether an impact statement
is warranted, an agency generates an EA, 40 C.F.R. § 1501.4(b), a “concise public
document . . . that serves to . . . [b]riefly provide sufficient evidence and analysis
for determining whether to prepare an [EIS] or a [FONSI],” id. § 1508.9(a)(1).
The assessment must “include brief discussions of the need for the proposal, of
alternatives . . . , [and] of the environmental impacts of the proposed action and
alternatives.” Id. § 1508.9(b). As such, an EA must consider “the cumulative
impacts of a project,” Davis v. Mineta, 302 F.3d 1104, 1125 (10th Cir. 2002), as
well as its “indirect effects,” Airport Neighbors Alliance, Inc. v. United States, 90
F.3d 426, 433 (10th Cir. 1996). Distilled to its essence, “[t]he EA is a rough-cut,
low-budget [EIS] designed to show whether a full-fledged [EIS]—which is very
costly and time-consuming to prepare and has been the kiss of death to many a
25
federal project—is necessary.” Spiller v. White, 352 F.3d 235, 237 (5th Cir.
2003) (quoting Sabine River Auth. v. U.S. Dep’t 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 agency’s 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 judiciary’s role in
the NEPA context is merely to ensure that the federal agency takes a hard look at
26
the environmental consequences of its actions.” Middle Rio Grande Conservancy
Dist. v. Norton, 294 F.3d 1220, 1225 (10th Cir. 2002). “[A] presumption of
validity attaches to the agency action and the burden of proof rests with the
appellants who challenge such action.” Prairie Band, 684 F.3d at 1008 (quoting
Richardson, 565 F.3d at 704) (internal quotation marks omitted). That said, “our
review of an EA/FONSI has a substantive component as well as a component of
determining whether the agency followed procedural prerequisites.” Davis, 302
F.3d at 1112. “If the plaintiffs can demonstrate substantively that the [agency’s]
conclusion of non-significant effect on the environment represents a ‘clear error
of judgment,’ then that conclusion must be reversed.” Id. (quoting Utah Shared
Access Alliance, 288 F.3d at 1213).
3
a
Appellants first assert that the Service had an obligation to prepare an
impact statement in regards to soil contaminants, and in particular plutonium. As
noted, an agency is compelled to complete an impact statement where its
proposed action “may significantly affect the quality of the human environment.”
Norton, 294 F.3d at 1224 (emphasis added). The term “significantly” is defined
in part with reference to “[t]he degree to which the proposed action affects public
health or safety.” 40 C.F.R. § 1508.27(b)(2). In Appellants’ view, the parkway
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 Service’s request—and prior to its
decision to enter into the land exchange—the EPA clarified that this clearance
applied to the construction of the proposed parkway as well.
In their opening brief, Appellants challenge the EPA’s 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
Other state and federal agencies were involved in the preparation of
this report. It is not disputed that the EPA played a major role in preparing the
report and, more importantly, that it issued the subsequent clarification of the
report, and those are the essential facts for our purposes.
28
There is no apparent impropriety in the Service’s use of the letter. NEPA
itself instructs agencies that are deciding whether an impact statement is called
for to make use of 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). With respect to the plutonium issue here, the EPA is
undeniably such an agency. See generally Waste Action Project v. Dawn Mining
Corp., 137 F.3d 1426 (9th Cir. 1998) (discussing the EPA’s role in regulating
radioactive materials). Tacitly conceding these points, Appellants press two
rebuttals: (1) the letter “was not subject to any of the formal procedures that
accompany a CERCLA determination,” Aplts.’ Reply Br. at 11; and (2) it was
based on flawed reasoning. 12
The first argument is unsupported by any authority or elaboration, and is
thus inadequately articulated to warrant our consideration of it. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised, or are inadequately presented, in an
appellant’s opening brief.”). At any rate, to the extent that we can discern its
substance, the argument is unconvincing. As noted, NEPA encourages agencies
12
We do not understand Appellants to argue that the 2011 letter was
not part of the EA; insofar as they believe that to be the case, they have
insufficiently presented the contention. See United States v. Rodriguez-Aguirre,
108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (“[I]t is the appellant’s responsibility to
tie the salient facts, supported by specific record citation, to [his] legal
contentions.” (second alteration in original) (internal quotation marks omitted)).
29
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 Service’s part.
Appellants’ second objection to the 2011 letter—that its reasoning is
flawed—is 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 employees—“includ[ing]
the potential for greater rates of inhalation and ingestion of soil by the
construction worker”—but 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 EPA’s 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
EPA’s logic, nor to fault the Service for relying on it.
Finally, Appellants articulate a highly detailed criticism of the EPA’s
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
agency’s,” and that we may not do. Ass’ns Working for Aurora’s Residential
Env’t v. Colo. Dep’t of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998).
Recognizing the EPA’s 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 Service’s 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
insignificant.” Aplts.’ Opening Br. at 32. Neither contention justifies reversal.
i
Appellants believe that the Service failed to adequately consider the
impacts the construction of the parkway would have on smog, despite having
ample data on the issue at hand, by choosing to rely on state studies. They clarify
in their reply brief that their objection to the Service’s reliance on the state
studies is chiefly that the studies relied on purportedly outdated EPA air quality
standards. In 2008, the EPA revisited those standards and Appellants insist that
the Service should have utilized the new standards.
This argument does not survive the rigor of an arbitrary-and-capricious
review. The Service avers that the 2008 rules had not yet been implemented
when the EA was being prepared and Appellants do not dispute that fact. See
Implementation of the 2008 National Ambient Air Quality Standards for Ozone,
77 Fed. Reg. 30,160, 30,161 (May 21, 2012) (noting that the “EPA deferred initial
designation of areas for the 2008 ozone NAAQS” and only proposed rulemaking
to “address the classifications and attainment deadlines” in February 2012).
Therefore, Appellants’ argument is essentially that the Service acted arbitrarily
and capriciously in relying on studies predicated on then-prevailing standards
promulgated by the nation’s leading environmental agency, simply because new
standards were forthcoming. Not surprisingly, they have no caselaw to support
33
that proposition. Appellants fail to overcome the “presumption of validity” that
“attaches to the agency action.” Prairie Band, 684 F.3d at 1008 (quoting
Richardson, 565 F.3d at 704) (internal quotation marks omitted). There was no
NEPA violation with respect the Service’s reliance on the state studies.
ii
Appellants also fault the Service for not sufficiently analyzing—or
disclosing—the emissions that would result from the construction of the parkway.
In its EA, the Service noted that the parkway project would be required to comply
with current and future air quality standards. Ultimately, Appellants have no
good explanation as to why it was inadequate of the Service to rely on the fact
that the parkway project would be subject to continuing environmental
requirements. Appellants’ largely unsubstantiated position is also complicated by
a more fundamental question regarding what the proposed federal action here is.
Though Appellants’ briefing could be read to imply that the federal action being
challenged is the construction of the parkway, they acknowledged at oral
argument that the construction is really just a consequence of the action under
attack, which is—understood in its most reasonable terms—only the land
exchange. Although the distinction may be a technical one, since Appellants
fairly regard the exchange and the parkway as closely related, it is nevertheless a
distinction that tips the scales in the Service’s favor because we are called upon in
34
part to determine whether the level of detail that the Service offers regarding the
environmental effects of the parkway’s construction—here, effects relating to
emissions—is 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 parkway’s 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 Service’s 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 Service’s] 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
Intervenors are comprised of Jefferson County, the City of Arvada,
the Jefferson Parkway Public Highway Authority, the Colorado Natural Resource
Trustees, and the Colorado State Board of Land Commissioners.
35
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. Dep’t 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 undertakings—the parkway included—would 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 Service’s
36
treatment of nitrogen dioxide emissions from vehicles on the proposed parkway
violated NEPA in the following respects: (1) it failed to quantify emissions; (2) it
omitted “an alternative qualitative description of the public health impacts
associated with” emissions; and (3) it failed to consider whether emissions would
comply with a nitrogen dioxide standard adopted by the EPA in 2010. Aplts.’
Opening Br. at 32. In response, the Service argues that the evolving nature of the
EPA standards regarding nitrogen dioxide made it impractical to fully consider
the matter in its EA and made it more appropriate to rely on local government to
ensure that any transportation projects comply with national benchmarks.
Appellants’ attack on the Service’s explanation is twofold: (1) “agencies
cannot avoid NEPA significance by claiming impacts are unclear or require
additional study”; and (2) modeling of nitrogen dioxide emissions is available.
Aplts.’ Opening Br. at 38. Both of these assertions imply that the Service refused
to consider nitrogen dioxide impacts because of difficulties assembling the
pertinent data. That is not, however, why it left the impacts out of its EA.
Rather, it did so because the forthcoming legal standards had not yet been
promulgated. See Aplts.’ App. at 474 (“In the absence of final standards and
guidance, modeling how current, approved regional transportation plans comply
with the new standards for these pollutants would be difficult at best.” (emphasis
added)); see also Primary National Ambient Air Quality Standards for Nitrogen
37
Dioxide, 75 Fed. Reg. 6474, 6520 (Feb. 9, 2010) (stating that “initial [nitrogen
dioxide] designations” would be promulgated by January 2012). What Appellants
need—and what they completely lack—is 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 Preble’s Meadow Jumping Mouse in various ways, each of
which is discussed below.
i
In Appellants’ view, the Service’s “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 Ass’n 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 Service’s 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 44–45. 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
exchange—which included Section 16—as “very important” to the mouse,
Aplees.’ J. Supp. App. at 227 (Draft Envtl. Assessment, prepared Sept. 2011).
Short though these discussions may be, they undermine Appellants’ insistence
that the EA “failed to disclose the current status of Mouse habitat on the Section
16 property,” Aplts.’ Opening Br. at 44–45, and thus weaken the underlying
premise of their position.
Taking a related tack, Appellants fault the Service for failing to disclose
that the habitat within Sections 3 and 16 had been conserved; as a result, they
reason, the exchange gave the mouse nothing, because it was already protected in
the land acquired by the Service in the exchange. 14 The Service responds that
“[t]he fact that the Mouse habitat in Sections 3 and 16 already had some legal
protections . . . does not undercut the stated benefit of permanently placing the
land in federal ownership.” Aplees.’ Br. at 57–58. We agree. In particular, the
government notes that the conservation lease on Section 16 would have been
14
Appellants argue in passing in their section on mitigation measures
(which are discussed infra) that Section 16 contains no habitat essential to the
mouse because the Service did not designate any land within it critical habitat.
Because Appellants do not make this argument with respect to the no-action
analysis, there is no need to address it here. In addition, we have no reason to
believe that this alleged fact renders the Service’s no-action analysis
automatically arbitrary and capricious. The Service stated why it considered
Section 16 to be suitable habitat for the mouse, and it was reasonable—for no-
action purposes—for the Service to consider the acquisition of 104 acres of mouse
habitat worth the sacrifice of 12.4 acres (of 35,000 total acres) of critical habitat,
regardless of whether or not the 104 was critical or just suitable habitat.
40
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 agency’s 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
government’s 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 Service’s expertise, Flowers, 359 F.3d at 1274, we uphold the
Service’s 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 exchange—which
included Section 16—contained 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 Service’s 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 Eng’rs, 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., O’Reilly v. U.S.
Army Corps of Eng’rs, 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
on the human environment.” 40 C.F.R. § 1508.13. It would make no sense to
demand an articulation of mitigation measures when there is no anticipated harm
to mitigate.
By contrast, an EIS presupposes the existence of significant environmental
effects—that is, such effects are its raison d’être, see, e.g., Utah Shared Access
Alliance v. Carpenter, 463 F.3d 1125, 1131 (10th Cir. 2006); consequently, an
EIS must include a discussion of mitigation measures, see San Juan Citizens
Alliance v. Stiles, 654 F.3d 1038, 1053 (10th Cir. 2011) (“[A]n EIS must
. . . discuss ‘steps that can be taken to mitigate [a project’s] adverse
environmental consequences.’” (second alteration in original) (quoting Robertson,
490 U.S. at 351)).
Applying that framework, the Service was only required to include
mitigation measures in its EA if it forecast a significant impact resulting from the
exchange. The EA made no such forecast. Rather, as the Service rightly
observes, the EA discussed the acquisition of Sections 3 and 16 (and the other
parcels transferred to the Service under the deal) as part of the proposed agency
action, not as a mitigation measure to compensate for some separate action. It is
therefore appropriate that the EA omitted any section with the word “mitigation”
in the title, and Appellants’ mitigation arguments do not entitle them to relief.
iii
43
It is Appellants’ position that the Service ran afoul of NEPA when it
shielded from public notice and comment the documents the EA relied upon for
its statements regarding the mouse. When preparing an EA, an “agency shall
involve . . . the public . . . to the extent practicable.” 40 C.F.R. § 1501.4(b).
Plainly, this language affords an agency “considerable discretion to decide the
extent to which such public involvement is ‘practicable.’” Brodsky v. U.S.
Nuclear Regulatory Comm’n, 704 F.3d 113, 121 (2d Cir. 2013); see Taxpayers of
Mich. Against Casinos v. Norton, 433 F.3d 852, 861 (D.C. Cir. 2006) (observing
that an agency enjoys “significant discretion in determining when public comment
is required with respect to EAs”); see also Flowers, 359 F.3d at 1279 (“NEPA’s
public involvement requirements are not as well defined when an agency prepares
only an EA and not an EIS.”).
Our Flowers decision compels a finding that the Service acted well within
the confines of this substantial discretion. There, we upheld an agency against a
similar challenge where it failed to circulate for public comment various
documents supporting its environmental assessment. 359 F.3d at 1279. One of
those documents was a biological opinion, the very document that Appellants
focus on here. Id. Rejecting the appellants’ argument in Flowers, we emphasized
that the circulated notice indicated that the project would likely affect bald eagles,
the species at issue, and found that sufficient to satisfy the public-involvement
44
aspect of NEPA under the circumstances. Id.
The logic of Flowers applies a fortiori to the instant appeal. In Flowers,
the assessment itself was never circulated, id., which was not the case here. And,
just as in Flowers, the circulated notice did mention the possibility of impacts on
the mouse, and the notice was presumably sufficient since the comments
themselves then brought the issue up. Thus, there is even more reason here to
uphold the agency action than in Flowers. In sum, Appellants fail to disturb the
“presumption of validity [that] attaches to the agency action.” Prairie Band, 684
F.3d at 1008 (quoting Richardson, 565 F.3d at 704) (internal quotation marks
omitted).
iv
In Appellants’ opinion, the Service’s decision to conduct an intra-agency
consultation regarding the potential effect of the parkway on the mouse
“undermines [its] NEPA findings on the same agency action,” Aplts.’ Opening Br.
at 41, because a formal consultation only occurs when an action is “likely to
adversely affect” a species and that very finding required the Service to also
prepare a full EIS and not just an EA, id. (quoting 50 C.F.R. § 402.13).
Appellants have no authority to support the proposition that once an agency
initiates the consultation process it is precluded from issuing an EA rather than an
EIS. Under our binding precedent, that is clearly not the case. See Flowers, 359
45
F.3d at 1265, 1276 (upholding an agency’s decision to prepare only an EA despite
the fact that it initiated—and reinitiated—consultation with the Service); cf. Cold
Mountain v. Garber, 375 F.3d 884, 893 (9th Cir. 2004) (affirming an agency’s
decision not to prepare an EIS in part because it engaged in consultation with the
Service beforehand). Accordingly, Appellants do not demonstrate a NEPA
violation on this ground.
v
Appellants contend that the Service violated NEPA by relying on the first
biological opinion, when its decision to get a second opinion reveals the first to
be inadequate. However, as the district court before us held, the two biological
opinions reach the same ultimate conclusion: that the land exchange did not
jeopardize the continued existence of the mouse. It is entirely unclear how the
fact of the reinitiation and subsequent biological opinion has any bearing on the
Service’s decision to forgo an impact statement, and Appellants offer no
assistance in detecting such a connection.
For all of these reasons, we reject Appellants’ NEPA claim.
C
Having disposed of Appellants’ NEPA claim, we now take up their ESA
argument. The entirety of Appellants’ ESA-based argument is premised on the
notion that “[the Service] unlawfully failed to issue [a take statement] for the land
46
exchange.” Aplts.’ Opening Br. at 52 (emphasis added) (capitalization
removed). 16
An agency is required to consult with the Service under the ESA whenever
it plans to take an action that “may affect” a threatened species or its critical
habitat. 50 C.F.R. § 402.14(a). As a culminating act of the consultation process,
the Service “formulates a biological opinion.” Rio Grande Silvery Minnow v.
Bureau of Reclamation, 601 F.3d 1096, 1105 (10th Cir. 2010); see 50 C.F.R. §
402.14(g)(4) (noting that the Service is responsible “during formal consultation”
for “[f]ormulat[ing] its biological opinion”). A biological opinion is “a written
statement determining whether the proposed action ‘is likely to jeopardize the
continued existence of listed species.’” Rio Grande Silvery Minnow, 601 F.3d at
1105 (quoting 50 C.F.R. § 402.14(g)(4)).
The Service is also charged during the consultation process with
“formulat[ing] a statement concerning incidental take, if such take may occur.”
16
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 Service’s] 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 Service’s “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.”).
47
50 C.F.R. § 402.14(g)(7) (emphases added); see 16 U.S.C. § 1536(b)(4)(i)
(providing that the Service “shall provide the Federal Agency . . . with a written
statement that . . . specifies the impact of such incidental taking on the species”);
50 C.F.R. § 4012.14(i)(1) (noting that an incidental take statement “[s]pecifies the
impact, i.e., the amount or extent of such incidental taking on the species”). “The
term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19);
accord Rio Grande Silvery Minnow, 601 F.3d at 1106 n.4.
The take statement is “a permit authorizing the action agency to ‘take’ the
endangered or threatened species so long as it respects the Service’s terms and
conditions.” Bennett v. Spear, 520 U.S. 154, 170 (1997) (internal quotation
marks omitted). “In those cases where the Service concludes that an action (or
the implementation of any reasonable and prudent alternatives) and the resultant
incidental take of listed species will not violate [the ESA], . . . the Service will
provide with the biological opinion a statement concerning incidental take . . . .”
50 C.F.R. 402.14(i)(1) (emphases added) (citations omitted); see Rio Grande
Silvery Minnow, 601 F.3d at 1106 (describing the conditions under which an
incidental take statement may be issued).
As noted, Appellants’ ESA argument is predicated solely on the assertion
that the Service unlawfully failed to issue an incidental take statement regarding
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’ Ass’n 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. Dep’t of Navy, 733 F.3d 1106, 1122–23 (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’ Ass’n, 273 F.3d at 1240–41
49
(rejecting the Service’s argument that “it should be permitted to issue an
Incidental Take Statement whenever there is any possibility, no matter how small,
that a listed species will be taken”). We need not definitively opine on this
interpretive point, however. Because, even if the Service was obliged for some
reason to issue an incidental take statement as to the land exchange, we find
evidence in this record that it sufficiently did so—evidence that Appellants do not
bother to acknowledge, much less rebut.
In this regard, both biological opinions contain a section clearly labeled
“incidental take statement.” See Aplts.’ App. at 364; id. at 574 (Biological Op.,
prepared Feb. 14, 2012). In the first biological opinion, though noting that it
“anticipate[d] that the proposed land exchange w[ould] not result in incidental
take of [the mouse],” the Service explicitly recognized that the related “use of the
300-foot strip of land . . . may result in take, and the project proponent will be
required to obtain incidental take coverage . . . when a project has been defined
and proposed.” Id. at 365. The second opinion is of a similar stripe but provides
greater detail: it indicates that the construction of the parkway, “which is
interdependent upon [the] proposed land exchange, will result in the incidental
take of 12.4 acres of . . . mouse habitat and in the take of no more than one
individual mouse.” Id. at 575 (emphasis added).
Appellants offer no reason for us to consider these passages as anything
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 court’s judgment regarding Appellants’ ESA
claim. 18
17
In a letter of supplemental authority, Appellants endeavor to rely
upon Public Employees for Environmental Responsibility v. Beaudreu, 25 F.
Supp. 3d 67 (D.D.C. 2014), to support their argument regarding the incidental-
take-statement issue. They note that the district court in Beaudreu rejected the
government’s suggestion that the possibility of reconsultation mooted the need for
a take statement. Here, though, the fundamental problem with Appellants’
position is that the record contains two biological opinions with respective
sections entitled “incidental take statement,” and Appellants have given us no
reason to suppose that they are anything other than take statements. In the cited
section of Beaudreu, see id. at 114–15, the court does not indicate that there were
any similar documents in that record, so the case cannot help Appellants
overcome this hurdle.
18
Appellants assert in passing that “[The Service] failed to limit the
amount of take, identify mandatory terms and conditions to minimize harm, and
impose requirements for monitoring and reporting.” Aplts.’ Opening Br. at 57.
This argument too is explicitly tied to Appellants’ unsubstantiated claim that the
Service failed to issue a take statement, as they conclude their point shortly
thereafter with the following statement: “In short, [the Service] undermined the
purpose of [a take statement] by not issuing one for the Land Exchange.” Id.
Accordingly, because it is without footing in the record, this assertion need not be
addressed. However, it is worth noting that the reason the biological opinions
omitted some of these specific terms is because the entities building the parkway
“will be required to obtain incidental take coverage . . . when a project has been
defined and proposed.” Aplts.’ App. at 575. Appellants provide no meaningful
reasoning to explain why it was arbitrary and capricious for the opinions to take
this approach. Cf. Defenders of Wildlife, 733 F.3d at 1123–24 (holding that “it
(continued...)
51
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 Service’s 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.
52
DENY Appellants’ motion to file a supplemental appendix, and DENY the
Service’s motion to file a supplemental appendix as moot.
53