Cure Land, LLC et al v. United States Department of Agriculture et al
Filing
37
ORDER Affirming Agency's Decision to exclude the Target Zone from the Amendment is hereby AFFIRMED. The Clerk shall enter judgment against Plaintiffs and in favor of Defendants. Defendants shall have their costs, by Judge William J. Martinez on 8/14/2014. (evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-2388-WJM
CURE LAND, LLC, and
CURE LAND II, LLC,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE,
TOM VILSACK, in his official capacity as Secretary of the United States Department of
Agriculture,
FARM SERVICE AGENCY, an Agency of the United States Department of Agriculture,
and
JUAN M. GARCIA, in his official capacity as Administrator of the Farm Service Agency,
Defendants.
ORDER AFFIRMING AGENCY’S DECISION
Plaintiffs Cure Land, LLC and Cure Land II, LLC (jointly the “Plaintiffs”) bring this
action against Defendants the United States Department of Agriculture (“USDA”), the
Farm Service Agency (“FSA”) (jointly the “Agency”), Tom Vilsack in his official capacity
as Secretary of the USDA, and Juan M. Garcia in his official capacity as Administrator
of the FSA (collectively the “Defendants”). (ECF No. 1.) This matter is before the Court
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, on
Plaintiffs’ appeal of the Agency’s decision to exclude certain lands from a proposed
water conservation program. (Id.) For the reasons set forth below, the Agency’s
decision is affirmed.
I. BACKGROUND
A.
Statutory Background
The National Environmental Policy Act (“NEPA”) is “[t]he centerpiece of
environmental regulation in the United States”. New Mexico ex rel. Richardson v.
Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). NEPA’s “twin aims” require
a federal agency “to consider every significant aspect of the environmental impact of a
proposed action,” and to “inform the public that it has indeed considered environmental
concerns in its decision-making process.” Baltimore Gas & Elec. Co. v. Natural Res.
Defense Council, 462 U.S. 87, 97 (1983). “The Act does not require agencies to
elevate environmental concerns over other appropriate considerations, however; it
requires only that the agency take a ‘hard look’ at the environmental consequences
before taking a major action.” Utah Shared Access Alliance v. U.S. Forest Serv., 288
F.3d 1205, 1207-08 (10th Cir. 2002) (citing Baltimore Gas, 462 U.S. at 97). That is,
NEPA “‘merely prohibits uninformed—rather than unwise—agency action.’”
Richardson, 565 F.3d at 704 (quoting Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 351 (1989)).
“Before an agency may take ‘major Federal actions significantly affecting the
quality of the human environment,’ an agency must prepare an environmental impact
statement (“EIS”) in which the agency considers the environmental impacts of the
proposed action and evaluate[s] ‘alternatives to the proposed action,’ including the
option of taking ‘no action.’” Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d
772, 780 (10th Cir. 2006) (quoting 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.14(d)).
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However, “[i]f an agency is uncertain whether the proposed action will significantly
affect the environment, it may prepare a considerably less detailed environmental
assessment” (“EA”) to determine whether an EIS is necessary. Utah Envtl. Cong. v.
Bosworth, 443 F.3d 732, 736 (10th Cir. 2006) (citing 40 C.F.R. § 1508.9). If the EA
concludes that the proposed project will have a significant effect on the environment,
the agency must then develop an EIS; if not, the agency then issues a “Finding of No
Significant Impact” (“FONSI”), and no further agency action is required. Id.
In addition to these procedural requirements, “[a]t all stages throughout the
process, the public must be informed and its comments considered.” Richardson, 565
F.3d at 704 (citing 40 C.F.R. §§ 1503.1, 1505.2, 1506.10). NEPA does not
circumscribe “the substantive action an agency may take—the Act simply imposes
procedural requirements intended to improve environmental impact information
available to agencies and the public.” Id.
B.
Factual and Procedural Background
This action arises out of a proposed amendment to the Colorado Republican
River Conservation Reserve Enhancement Program (“RR CREP”). The RR CREP is a
federal-state program in which enrolled cropland owners receive federal funding in
exchange for agreeing to cease irrigation of their lands, with the aim of conserving
water, improving water quality, controlling erosion, and protecting wildlife. (Amended
Admin. Record (“R.”) (ECF No. 29) at CL01600-15.) The RR CREP Agreement
involves the USDA and the State of Colorado, among other parties, and is administered
by the FSA, an agency of the USDA. (Id. at CL01352-64.) The RR CREP Agreement
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was entered into in April 2006. (Id.)
In June 2007, an amendment was proposed to the RR CREP Agreement
(“Amendment”), which included the addition of an area of land known as the “Target
Zone” within which Colorado’s Republican River Water Conservation District (the
“District”) could purchase the water rights. (R. at CL01184-85.) The District intended to
use the RR CREP funds to further incentivize landowners in the Target Zone to agree
to divert water to a pipeline that would feed into the Republican River, thereby helping
the State of Colorado meet its water supply obligations under a compact with Kansas
and Nebraska. (Id.) In 2008, pursuant to this plan, the District purchased some of the
water rights to lands owned by Plaintiffs in the Target Zone. (Id. at CL01114-15.) In
the course of considering the Amendment, the Agency expressed concerns regarding
the inclusion of the Target Zone in the RR CREP. Specifically, the Agency considered
whether a Target Zone landowner could be a voluntary participant in the CREP if
compliance with the compact was mandatory, and whether diverting water to the
pipeline would have conservation benefits, given that the water could later be used by
other states rather than conserved. (See id. at CL00615-18, 621-22.)
In October 2009, the Agency informed Colorado that it generally supported the
Amendment and intended to prepare a supplemental environmental assessment to
evaluate the Amendment’s environmental impact (“Supplemental EA”). (R. at
CL00699.) During the course of these preparations, the Agency began to receive
public comments regarding the Amendment, some of which challenged the inclusion of
the Target Zone. (See, e.g., id. at CL01750.) This opposition initially came from one
individual who argued that the Target Zone lands were principally owned by one family,
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which would stand to profit inequitably from selling their water rights to the District for
compact compliance, while also receiving RR CREP funds. (See id.) However, the
Agency then began receiving similar comments from other individuals, indicating a
broader controversy and prompting the Agency to hold a public meeting in October
2010 to solicit verbal comments on the Supplemental EA. (Id. at CL00806, 1690.) The
Agency received several verbal comments at the public meeting, and subsequently
received several written comments from individuals, letters from other conservation
districts rescinding previous support for the Amendment, and a petition with 90
signatures, most of which challenged the inclusion of the Target Zone in the
Amendment. (Id. at CL00771, 800.)
In December 2010, the Agency published the Final Supplemental EA (R. at
CL00379-464), which concluded that the Amendment as a whole would have
environmental benefits and would have “no expected long term significant negative
impacts . . . .” (Id. at 00427.) The Supplemental EA reviewed the comments received
in opposition to the inclusion of the Target Zone, and generally noted that no change to
the EA was required. (Id. at CL00444, 449-460.) In a few instances, the Supplemental
EA declined to respond to the commenters’ concerns regarding the fairness of the
incentive payments and the equity of including the Target Zone in the Amendment,
because such issue was deemed “not an issue for the EA”. (Id. at CL00452, 53.)
In December 2010, the Agency prepared a draft decision document concluding
that no significant environmental impact would occur (“Draft FONSI”) if the Amendment
were implemented as originally proposed. (R. at CL01867.) However, the Draft FONSI
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was not finalized due to concerns regarding the public controversy, amongst other
factors. (See id. at CL01525-30.) On April 16, 2012, the Agency issued a FONSI that
removed the Target Zone from the proposed Amendment. (Id. at CL00375-76.)
On September 7, 2012, Plaintiffs filed this action challenging the Agency’s
decision to exclude the Target Zone from the Amendment. (ECF No. 1.) Plaintiffs’
Opening Brief was filed on May 1, 2013. (ECF No. 30.) Defendants filed their
Response Brief on May 31, 2013 (ECF No. 31), and fourteen days later, Plaintiffs filed
their Reply (ECF No. 32).
II. LEGAL STANDARD
The role of a court reviewing a NEPA challenge “is simply to ensure that the
agency has adequately considered and disclosed the environmental impact of its
actions and that its decision is not arbitrary and capricious.” Baltimore Gas, 462 U.S. at
97-98; see also Richardson, 565 F.3d at 704 (“As with other challenges arising under
the APA, we review an agency’s NEPA compliance to see whether it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’”) (quoting 5
U.S.C. § 706(2)(A)).
An agency’s decision is considered arbitrary and capricious if it “(1) entirely failed
to consider an important aspect of the problem, (2) 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, (3)
failed to base its decision on consideration of the relevant factors, or (4) made a clear
error of judgment.” Richardson, 565 F.3d at 704 (quotations omitted). The Court’s
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“inquiry under the APA must be thorough, but the standard of review is very deferential
to the agency. . . . A presumption of validity attaches to the agency action and the
burden of proof rests with [the party raising the challenge].” W. Watersheds Project v.
Bureau of Land Mgmt., 721 F.3d 1264, 1273 (10th Cir. 2013) (internal citations
omitted).
III. ANALYSIS
Plaintiffs argue that the Agency’s decision to exclude the Target Zone from the
Amendment was arbitrary and capricious, an abuse of discretion, and not in
accordance with law, and should therefore be vacated. (ECF No. 30 at 19.) Plaintiffs
readily admit that this is not the ordinary posture of a NEPA challenge, which typically
argues that an agency should have performed more environmental analysis. (Id. at 1.)
Instead, Plaintiffs’ challenge is rooted in NEPA’s procedural requirements, contesting
the Agency’s change of position between the Supplemental EA and the FONSI.
Plaintiffs raise three arguments: (1) the Agency improperly changed course to exclude
the Target Zone despite its prior analyses; (2) Defendants improperly disregarded their
own technical analyses and bowed to political pressures; and (3) Defendants had no
authority to exclude the Target Zone as a mitigation measure. (Id. at 19-30.) The Court
will discuss each argument in turn.
A.
Change of Course
Plaintiffs argue that the Agency’s decision to exclude the Target Zone was
arbitrary and capricious because it was an unjustified change of course from the
Agency’s findings in the Supplemental EA that no adverse environmental
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consequences would result. (ECF No. 30 at 19-23.) Plaintiffs contend that the decision
was made with no public explanation, constituting arbitrary and capricious action and an
abuse of discretion. (Id. at 20.)
Plaintiffs cite numerous authorities holding that an agency may not abandon a
previous policy or rule without providing a reasoned explanation for its reversal. (Id. at
20-22.) The factual scenarios in the cases cited by Plaintiffs include an agency
decision to abandon a rule requiring airbags in new vehicles, see Motor Vehicle
Manufacturers Association v. State Farm Mutual Auto Insurance Co., 463 U.S. 29
(1983); an agency’s issuance of an operating permit without a compliance schedule in
violation of prior policies and practices, see New York Public Interest Research Group,
Inc. v. Johnson, 427 F.3d 172 (2d Cir. 2005); an agency’s change of position regarding
whether a bridge would adversely affect the area’s scenic and recreational values, see
Sierra Club North Star Chapter v. LaHood, 693 F. Supp. 2d 958 (D. Minn. 2010); and
an agency’s change of position regarding the necessity of firearm restrictions to ensure
public safety in national parks and wildlife refuges, see Brady Campaign to Prevent Gun
Violence v. Salazar, 612 F. Supp. 2d 1 (D.D.C. 2010). (ECF No. 30 at 20-22.)
While Plaintiffs’ argument is somewhat compelling, ultimately the Court is not
persuaded. As an initial matter, the majority of the authorities Plaintiffs cite involve
established policies or promulgated rules that are subsequently abandoned without
explanation. See, e.g., Motor Vehicle Mfrs. Ass’n, 463 U.S. at 29. The instant case is
distinguishable, as it does not involve a policy or rule that was previously established
and subsequently abandoned. Rather, it involves a proposed amendment to expand
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the scope of a conservation program, and a change in the size of the proposed
expansion between the environmental evaluation (the Supplemental EA) and the final
decision (the FONSI). A case involving “the revocation of an extant regulation”, wherein
“[r]evocation constitutes a reversal of the agency’s former views as to the proper
course”, does not inform the instant case, where the initial proposal was not formally
promulgated. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 41 (noting that a “settled
course of behavior” in carrying out the agency’s policies implies “a presumption that
those policies will be carried out best if the settled rule is adhered to”). The proposed
Amendment discussed in the Supplemental EA was neither a promulgated rule, nor an
established practice constituting a “settled course of behavior”. Id. Accordingly, the
Court finds these cases inapplicable here.
Rather than requiring an explanation for the change in course, NEPA requires
only that the Agency “articulate ‘a rational connection between the facts found and the
choice made.’” Friends of Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1096
(10th Cir. 2004) (quoting Baltimore Gas, 462 U.S. at 105). In Friends of Marolt Park,
the agency changed the scope of the proposal—the “preferred option”—between the
environmental evaluation document (a draft supplemental EIS) and the decision
document (a Record of Decision), wherein it explained that it modified the preferred
option based on a lack of public support and due to additional costs. Id. at 1092, 1096.
The Supreme Court held that the explanation in the decision document provided the
requisite rational connection between the facts and the decision, and the agency
appropriately evaluated the environmental impact of its decision. Id. at 1096. Friends
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of Marolt Park thus supports Defendants’ argument that an agency conducting an
environmental review under NEPA has not established a policy merely by evaluating
one proposed action in its environmental document, nor is it required to tie any change
in that proposed action to its environmental impact, as long as it articulates the required
rational connection for the change. Id.
The Court finds that the FONSI sufficiently articulated such a connection here.
Under the title “Reasons for Finding of No Significant Impact”, the Agency explains that
“the Target Zone has been removed from the preferred alternative and a [FONSI] is
being rendered. This determination is based on the following” ten enumerated reasons.
(R. at CL00376.) Most of the listed reasons relate to the environmental impact of the
proposed Amendment, but one describes public opinion, as follows:
The potential impacts on the quality of the human
environment are not considered highly controversial.
Additional public involvement measures were taken for this
action given the high public interest in the action.
Comments received throughout the project did not indicate
significant concern with the environmental analysis but
rather opposition to the proposed incentive payments and
eligibility requirements described in the proposed
Amendment to the Republican River CREP.
(Id. at CL00376 ¶ 4.) The FONSI does not explicitly state that the comments received
were specifically opposed to the inclusion of the Target Zone. However, the ten
enumerated reasons are offered in explanation of the decision to remove the Target
Zone and issue a FONSI. Thus, the cited language articulates a rational connection
between the decision to remove the challenged area and the comments received, which
satisfies the Agency’s obligations. See Friends of Marolt Park, 382 F.3d at 1096.
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Plaintiffs object to the application of the legal standard articulated in Friends of
Marolt Park, and the majority of the argument in Plaintiffs’ Reply is spent in
distinguishing that case. (ECF No. 32 at 8-12.) First, Plaintiffs argue that the agency in
Friends of Marolt Park had issued a draft EIS that identified both the initial proposal and
the alternative that was ultimately selected, which gave the public notice and an
opportunity to comment on them. (Id. at 9.) Here, Plaintiffs note that the Supplemental
EA did not discuss an alternative that omitted the Target Zone, and thus contend that
the public was not provided notice or an opportunity to comment on the potential
exclusion of the Target Zone. (Id.) However, Plaintiffs’ argument fails because the
Record shows that the public was given ample opportunity to comment on any and all
aspects of the proposed Amendment. Indeed, as the FONSI notes, “[a]dditional public
involvement measures were taken,” including holding a public meeting to receive verbal
as well as written comments. (See R. at CL00376, CL00806-56.) Plaintiffs have cited
no support for their contention that an agency may not choose to implement a portion of
a proposed action unless it has specifically identified that portion as a separate
alternative before soliciting comments. As a practical matter, such a requirement would
be unduly burdensome for agencies, which regularly propose complex actions with
many parts. Thus, the Court finds that an opportunity for public comment was properly
provided in this case.
Plaintiffs next argue that, unlike Friends of Marolt Park, the Agency here “only
considered half the story” because it failed to seek comment from Plaintiffs, who would
have provided explanations to alleviate the inequity concerns raised by other members
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of the public. (ECF No. 32 at 10.) However, Plaintiffs have cited no authority requiring
an agency to request comment from specific members of the public who will be affected
by a decision. Plaintiffs had an opportunity to comment along with all other members of
the public, but provided no such comment to the Agency for its consideration. (See R.
at CL00806-56.) Accordingly, the Court finds no indication that the Agency’s
consideration of public opinion was biased or that the Agency failed to consider all
relevant factors because it did not seek comment from Plaintiffs.
Finally, Plaintiffs argue that Friends of Marolt Park is distinguishable because in
that case, the proposed action required voter approval, and thus public opinion was a
necessary component of the action. (ECF No. 32 at 10-11.) Since voter approval was
not required to implement the Amendment here, Plaintiffs argue that the Agency’s
decisionmaking was flawed because there was no indication that public opinion would
be a factor in its decision. (Id. at 11-12.) This argument ignores the fact that informing
the public and considering its opinion is a core obligation of an agency in compliance
with NEPA. See Richardson, 565 F.3d at 704; see also 40 C.F.R. §§ 1503.1, 1505.2,
1506.10. Plaintiffs appear to presume that NEPA requires an agency to consider only,
or principally, environmental factors in its decisionmaking, when the case law states
otherwise. See, e.g., Utah Shared Access Alliance, 288 F.3d at 1207 (“[NEPA] does
not require agencies to elevate environmental concerns over other appropriate
considerations”); cf. Friends of Marolt Park, 382 F.3d at 1092 (modifying a proposed
action based on public opinion and cost considerations).
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Accordingly, the Court finds that Friends of Marolt Park is applicable here.
Pursuant to the legal standard articulated by the Tenth Circuit therein, the Court finds
that the Agency sufficiently articulated its reasons for modifying the proposed action
and excluding the Target Zone, and that it appropriately considered public opinion in
doing so.
B.
Political Pressures
Plaintiffs contend that the Agency’s decision to exclude the Target Zone was
arbitrary and capricious because that decision was based on political pressure instead
of the Agency’s environmental evaluation. (ECF No. 30 at 26-29.) Plaintiffs argue that
an agency may not rely on “factors which Congress has not intended it to consider”,
including the desire to avoid “political heat”. (Id. (citing Latecoere Int’l, Inc. v. U.S. Dep’t
of Navy, 19 F.3d 1342, 1356 (11th Cir. 1994); D.C. Fed’n of Civil Ass’ns v. Volpe, 459
F.2d 1231, 1248 (D.C. Cir. 1972); Tummino v. Torti, 603 F. Supp. 2d 519, 542
(E.D.N.Y. 2009)).)
Plaintiffs’ cited authorities note that an agency’s decision must not result from
political bias, see Latecoere, 19 F.3d at 1364; must not involve factors that would
invalidate the statutory requirements, see D.C. Federation, 459 F.2d at 1248; and must
not be made in bad faith in departure from the agency’s own policies, see Tummino, 603
F. Supp. 2d at 547. Here, in contrast, the Agency’s consideration of public comments
and controversy was not in violation of a statutory requirement to only consider other
factors. NEPA explicitly permits and requires an agency to provide public notice and an
opportunity to comment. See Richardson, 565 F.3d at 704; see also 40 C.F.R. §§
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1503.1, 1505.2, 1506.10. Because the Agency here was permitted to consider public
opinion, and there is no indication that it abandoned its own policies or invalidated the
statutory scheme in doing so, the Court finds no evidence of bad faith or bias.
Plaintiffs have characterized the tenor of the public comments here as “political
pressure” in order to analogize the instant case to those in which an agency caved to
pressure from corporate interests or other branches of government. (See ECF No. 30
at 26-29.) However, if the Court were to accept Plaintiffs’ exceedingly broad definition
of “political pressure”, that definition would swallow the entire public comment process,
in which the weight of local politics can always be discerned. The Court declines to
create conflict with the express language of NEPA to make such a sweeping ruling
here, and rejects Plaintiffs’ political pressure argument.
C.
Mitigation Measure
Finally, Plaintiffs argue that the exclusion of the Target Zone in the context of a
FONSI suggests that Defendants intended it as a mitigation measure that would avoid
any significant environmental impact. (ECF No. 30 at 24.) Because a mitigation
measure requires substantial evidence to support it and may only be used to mitigate
environmental impacts, not social or economic effects, Plaintiffs contend that exclusion
of the Target Zone was inappropriate as a mitigation measure here. (Id. at 24-26.)
Defendants do not respond to this argument, instead focusing on defending the
Agency’s decision in the context of the four factors that can constitute arbitrary and
capricious action. (See ECF No. 31 at 15-26.) However, the Court finds nothing in the
Record that would suggest that Defendants intended the exclusion of the Target Zone
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to be a mitigation measure. Rather, the Supplemental EA is clear that no significant
impacts on the human environment would result from the proposed Amendment even if
it included the Target Zone, which obviates the need to mitigate any environmental
impacts, whether by excluding the Target Zone or otherwise. (See R. at CL00427
(noting “no expected long term significant negative impacts associated with
implementation of the Proposed Amendment”); CL00454 (“The findings of the EA did
not result in significant impacts and no mitigation measures are required.”).) Therefore,
the Court finds no need for the Agency’s decision to meet the requirements for a
mitigation measure, and rejects Plaintiffs’ mitigation argument.
In sum, Plaintiffs have failed to show that the Agency’s decision to exclude the
Target Zone from the Amendment should be vacated, because they have not
established that the Agency failed to consider an aspect of the problem, offered an
explanation that was counter to the evidence, failed to base its decision on the relevant
factors, or made a clear error of judgment. See Richardson, 565 F.3d at 704.
Therefore, the Court finds that the Agency’s decision was not arbitrary and capricious,
an abuse of discretion, or otherwise not in accordance with the law, and it must be
affirmed. See id.
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS that the Agency’s decision to
exclude the Target Zone from the Amendment is hereby AFFIRMED. The Clerk shall
enter judgment against Plaintiffs and in favor of Defendants. Defendants shall have
their costs.
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Dated this 14th day of August, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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