West Slope Colorado Oil and Gas Association v. Jewell et al

Filing 42

ORDER Affirming Agency Decisions by Judge Christine M. Arguello on 08/18/2017. (swest)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-02764-CMA
WEST SLOPE COLORADO OIL AND GAS ASSOCIATION,
Plaintiff,
v.
SALLY JEWELL, in her official capacity as the Secretary of the U.S. Department of the
Interior;
UNITED STATES DEPARTMENT OF THE INTERIOR;
DANIEL M. ASHE, in his official capacity as the Director of the U.S. Fish and Wildlife
Service;
UNITED STATES FISH AND WILDLIFE SERVICE;
RUTH WELCH, in her official capacity as the State Director of the Bureau of Land
Management Colorado State Office;
BUREAU OF LAND MANAGEMENT COLORADO STATE OFFICE;
KENT WALTER, in his official capacity as Field Manager of the Bureau of Land
Management White River Field Office
Defendants.

ORDER AFFIRMING AGENCY DECISIONS

Plaintiff West Slope Colorado Oil and Gas Association (“Plaintiff”) appeals the
administrative actions taken by Defendants Sally Jewell, in her official capacity as the
Secretary of the United States Department of the Interior; United States Department of
the Interior (“DOI”); Daniel M. Ashe, in his official capacity as the Director of the United
States Fish and Wildlife Service; United States Fish and Wildlife Service (“FWS”); Ruth
Welch, in her official capacity as the State Director of the Bureau of Land Management
Colorado State Office; Bureau of Land Management Colorado State Office “(BLM”); and

Kent Walter, in his official capacity as Field Manager of the Bureau of Land
Management White River Field Office (collectively “Defendants”). Plaintiff seeks the
reversal of the FWS July 26, 2012 permit to Colorado State University (“CSU”) for a
research project, the FWS October 4, 2012 Biological Opinion (BiOp”)1 and the Interior
Board of Land Appeals (“IBLA”) August 21, 2014 Order IBLA 2014-11 (“Order”) that
affirmed the BLM’s September 23, 2013 Final Environmental Assessment/Decision
Record (“Final EA/DR”). Plaintiff alleges that Defendants violated the Endangered
Species Act (“ESA”), the National Environmental Policy Act (“NEPA”), the Federal Land
Policy and Management Act (“FLPMA”) and other administrative authorities. Plaintiff’s
appeal is before the Court pursuant to the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 701-706. For the reasons described below, the Court affirms the challenged
agency actions.
I. BACKGROUND
In 1990, FWS determined that the Dudley Bluffs Bladderpod (Lesquerella
congesta) and the Dudley Bluffs Twinpod (Physaria obcordata) are threatened species
of wild mustard plants (“the threatened plants”) found only in the Piceance Basin in
western Colorado. See 55 Fed. Reg. 4152-7 (Feb. 6, 1990). As required by 16 U.S.C. §
1533, FWS listed the threatened plants in its Endangered and Threatened Wildlife and
Plants; 5-Year Review of Listed Species, 56 Fed Reg. 56882-01 (Nov. 6, 1991). The
threatened plants therefore received ESA protection. The ESA prohibits the commercial

1

FWS issued a Memorandum but the parties use BiOp so the Court adopts their nomenclature.
2

trade, removal, or malicious damage or destruction of endangered and threatened
plants located on federal land. 16 U.S.C. § 1538(a)(2).
In February 2012, CSU began coordinating with BLM regarding its then proposed
research project. (BLM-000128-9.)2 In June 2012, CSU applied to FWS for a recovery
permit to collect and propagate seeds of the threatened plants with the eventual goal of
establishing new populations of them in suitable habitats. (DOI-000202-323.) On July
26, 2012, FWS issued to CSU the Federal Fish and Wildlife Permit number TE76718A0 (DOI-000724-730) for a restoration project3 of the threatened plants. The permit
authorized CSU to “remove and reduce to possession seed [of the threatened plants] on
Federal lands” and subsequently to “propagate seeds and reintroduce plants” subject to
conditions yet to be determined. (DOI-000725-7.) The permit required CSU to obtain
permissions and coordination with BLM, the landowner, and with FWS prior to collection
and reintroductions. (DOI-000725.)
BLM was deemed to propose the “agency action” since it would determine
whether or not to allow CSU’s research project. Therefore as required by section 7 of
the ESA, 16 U.S.C. § 1536(a), BLM consulted with FWS to ensure that the research
project would not be likely to jeopardize the threatened plants or their habitat. In
response thereto, on October 4, 2012, FWS issued its BiOp. (CSU-000484-5.)4 In its
BiOp, FWS noted the terms of the proposed research project. The relevant ones herein
include: (1) that “[t]he purpose of the proposed research project is to explore possible
2

The BLM citations are to the administrative record from the Department of Interior.
The project is referred to interchangeably as a “research” and “restoration” project.
4
The CSU citations are included within the administrative record from the Bureau of Land
Management.
3

3

approaches for establishing new populations of [the threatened plants] in suitable
habitats of the Piceance Basin in Northwestern Colorado in order to increase the plants’
overall abundance in the region”; (2) that, “[p]rior to establishing new populations, CSU
will consult with the BLM and [FWS] for approval of specific locations”; and (3) that “[t]he
study areas will be located across all known element occurrences (EO) for [the
threatened plants] in order to find plots far enough from current populations to avoid
negatively influencing genetic flow.” Id. FWS then concluded that “this research will be
largely beneficial for both the bladderpod and the twinpod and the action therefor[e] may
affect but is not likely to adversely affect bladderpod and twinpod.” Id. at 485.
BLM may determine the environmental impact of a proposed agency action
through an environmental assessment when the action would not significantly affect the
environment, as the FWS had concluded in its BiOp. 43 C.F.R. 4501.4(b). It thereby
determines if an environmental impact statement (“EIS”) is required, and if not, it instead
issues a “finding of no impact statement” (“FONSI”). 43 C.F.R. 4501.4(c) and (e).
Thus BLM proceeded with its environmental assessment (“EA”). On March 12,
2013, it posted a notice in the NEPA register to announce a March 20, 2013 meeting of
stakeholders, those affected by the research project, to discuss the project. (BLM0001321.) Plaintiff hosted this meeting at its regularly scheduled Rio Blanco County
task force meeting. At the meeting, the BLM’s Western Regional Field Office (“WRFO”)
proposed a collaborative effort among BLM, Rio Blanco County, FWS and industry to
create a Conservation Plan to promote recovery of the threatened plants while
accommodating resource extraction. (BLM-001497-8.) On July 18, 2013, the WRFO

4

notified the stakeholders, including Plaintiff, by letter (BLM-000075-86) that a Draft
Environmental Assessment (“Draft EA”) would be released on July 23, 2013, and that
the stakeholders would have a 15 day period within which to provide comment on it.
On July 23, 2013, the WRFO issued the Draft EA and a draft FONSI. (BLM001248-80; 0001278-80.) The Draft EA titled the project “Threatened plant species
reseeding research” and described its intent and its parameters. Some of these
included (1) that the project is “an attempt to expand current occupied habitat of two
federally threatened plant species...” (BLM-001248); (2) that “[t]he ultimate goal of this
project is to increase the likelihood that these species may be delisted” (BLM-001248);
(3) that the determination to be made by BLM was “whether or not to allow the proposed
threatened plant species reseeding research to proceed in the Piceance Basin, and if
so, under what terms and conditions” (BLM-001249); (4) that “[t]he purpose of the
proposed research project is to explore possible approaches for establishing new
populations of these species in suitable areas in order to increase their overall
abundance in the region” (BLM-001249-50); (5) that “[a]ll sites will be considered
research populations and both the seeds and transplants will be protected under the
[ESA] as threatened species” (BLM-001250); (6)“[i]f research populations are viable
beyond 10 years they will be considered fully established and will not be treated
differently than any other natural population” (BLM-001250); and (7) that “[t]here will be
six, 5- x -5 meter study areas for each species to equal a total of 300 square meters
utilized in the research project for the 12 separate study areas” (BLM-001251.) The
Draft EA also included maps identifying the precise locations of the proposed research

5

plots and described the areas that could be impacted by the ESA protection accorded to
the plots. (BLM-001272-76, 001258-9, 001266.)
On August 7, 2103, Plaintiff submitted its written comments on the Draft EA. At
its September 11, 2013, Rio Blanco County task force meeting, Plaintiff hosted WRFO
and CSU to discuss the research project and Plaintiff’s comments on the Draft EA.
(BLM-001282.) On September 23, 2013, BLM approved the Final EA/DR, BLM
Colorado State Director affirmed the approval, and BLM issued its EA/DR (BLM001281-1319, 001241-4), and FONSI. (BLM-001245-47.) BLM’s Final EA/DR largely
preserved the procedure proposed in the Draft EA.
On October 23, 2013, Plaintiff filed an administrative appeal of BLM’s Final
EA/DR with IBLA and also petitioned IBLA to stay the BLM action. On August 21, 2014,
IBLA issued its Order affirming BLM’s Final EA/DR and denied the petition for stay.5
(BLM-001621-35.) The Order constitutes the IBLA final agency action. See 43 C.F.R. §
4.403(a).
II. STANDARD OF REVIEW
This court has jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 704.
The APA instructs that the Court shall set aside a federal agency action if it is
‘‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’’
or ‘‘without observance of procedure required by law.’’ 5 U.S.C. §§ 706(2)(A) & (D).
‘‘[I]n determining whether the agency acted in an ‘arbitrary and capricious manner,’ [the
court] must ensure that the agency ‘decision was based on a consideration of the
5

IBLA lacks jurisdiction over the issue of FWS’s designation of the proposed plant population as
“research” versus “experimental” and did not address it.
6

relevant factors’ and examine whether there has been a clear error of judgment.’’
Friends of the Bow v. Thompson, 124 F.3d 1210, 1215 (10th Cir. 1997). The scope of
review is narrow and a court is not to substitute its judgment for that of the agency.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983). Agency decisions should be set aside “only for substantial procedural or
substantive reasons…not simply because the court is unhappy with the result reached.”
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983).
Normally, the court may find a decision arbitrary and capricious if:
the agency had relied on factors which Congress had not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.
Motor Vehicle Mfrs. Ass’n of U.S., Inc., Id.
Review of an agency’s decision is usually deferential. See Citizens’ Comm. to
Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). The
deference given ‘‘is especially strong where the challenged decisions involve technical
or scientific matters within the agency’s area of expertise.’’ Utah Envtl. Cong. v.
Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). If the agency’s exercise of discretion is
truly informed, then the court must defer to it. Utah Shared Access All. v. U.S. Forest
Serv., 288 F.3d 1205, 1213 (10th Cir.2002). However, if the record shows that the
agency prejudged the issues, then deference to the agency’s decision is diminished.
See Davis v. Mineta, 302 F.3d 1104, 1112 (10th Cir. 2002).

7

III. ANALYSIS
A.

Standing

Plaintiff has standing to appeal the various agency actions pursuant to 5 U.S.C. §
704, on an organizational basis on behalf of its members. See Hunt v. Washington
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). (Trade association has standing
when it alleges that its members will suffer immediate or threatened injury from the
challenged action so long as each member is not an indispensable party.)
Defendants challenge Plaintiff’s standing to assert NEPA claims against
Defendants, arguing that its claims do not fall within the environmental zone of interests
protected by NEPA. The record shows otherwise. As described in this Order,
Defendants considered Plaintiff to be a stakeholder that was entitled to participate in the
environmental analysis due to the potential impact of the research project. Defendants
thus invited comments from Plaintiff as part of their NEPA analysis and then relied on its
participation to prove their NEPA compliance to IBLA. The Court concludes therefrom
that Plaintiff has standing to assert its NEPA claims.
The Court addresses the appellate issues raised by the entities that submitted
Amicus Briefs within its analysis below but not separately. The Court is mindful that
these entities are unable to raise new issues on appeal. Moffat Tunnel Imp. Dist. V.
Denver S.L.Ry.Co., 45 F.2d 715, 722 (10th Cir. 1930).
B.

Endangered Species Act

The ESA provides the means to conserve endangered and threatened species.
16 U.S.C. § 1531(b). A “threatened species” is one that “is likely to become an

8

endangered species within the foreseeable future throughout all or a significant portion
of its range.” 16 U.S.C. § 1532(20). Federal agencies are to “utilize their authorities in
furtherance of the purposes of [the ESA] by carrying out programs for the conservation
of [endangered or threatened species.]” 16 U.S.C. § 1536(a)(1). The ESA authorizes
the Secretary to trap and transplant endangered and threatened species, if necessary,
to bolster the species such that the ESA protections become unnecessary. See 16
U.S.C. §§ 1532(3) (defining “conservation”), 1536(a)(1). Incidental taking permits, also
known as Section 10 permits, are required when non-Federal activities will result in the
incidental taking of listed species. 16 U.S.C. § 1539(a)(1).

C.

Availability of Section 10(a) to FWS

Plaintiff claims that FWS/BLM’s various decisions are ultra vires, arbitrary, and
capricious, and hence they should be reversed. Specifically, Plaintiff claims that FWS
erred in issuing its July 26, 2012 permit to CSU and its BiOp under 16 U.S.C. § 1539(a)
(“Section 10(a)”) instead of under 16 U.S.C. § 1539(j)(2) (“Section 10(j)”). Plaintiff
argues that either the permit or the BiOp constitutes the FWS final agency action, while
Defendants argue that the permit is the final agency action. The Court finds that
FWS’s permit, not the BiOp, constitutes the FWS final action. 5 U.S.C. § 551(13), See
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 62 (2004). (Includes "permit
... or other form of permission" in its definition of final agency action.) Regardless, this
designation of the final agency action does not change the analysis in this Order.
Plaintiff asserts that FWS violated the ESA by failing to implement the procedure
specified in Section 10(j), as it applies to “experimental” plant populations. It alleges

9

that the “research population” of plants that FWS authorized to be introduced through
the July 26, 2012 permit is in fact an “experimental population.” Plaintiff argues that
compliance by FWS with Section 10(j) was mandatory and that FWS eliminated the
substantive and procedural protections that Section 10(j) affords to the stakeholders by
authorizing the research project pursuant to Section 10(a).
Defendants respond that FWS may issue permits for populations of threatened
plants outside of the current range of the species pursuant to Section 10(a) as well as
Section 10(j). Defendants quote Section 10(a) at 16 U.S.C. § 1539(a):
(1) The Secretary may permit, under such terms and conditions as he shall
prescribe—(A) any act otherwise prohibited by section 1538 of this title for
scientific purposes or to enhance the propagation or survival of the affected
species, including but not limited to, acts necessary for the establishment and
maintenance of experimental populations pursuant to subsection (j);
In addition, Defendants rely on 50 C.F.R. § 17.72, which authorizes the FWS to grant
exemptions from the ESA prohibitions when the action is for “scientific purposes, the
enhancement of the propagation or survival of threatened species … or other activities
consistent with the purposes and policy of the [ESA.]”
Defendants also argue that, while Section 10(j) authorizes the release of
experimental plant populations for conservation purposes, it merely supplements the
existing authority of FWS under Section 10(a) to reintroduce endangered species into
their historic ranges, including outside their current range. The parties rely on different
parts of the congressional record to support their positions.
Plaintiff replies that Section 10(j) overrules Section 10(a) based on the general
principle of statutory construction that a particular section trumps a general one.

10

However, Plaintiff’s construction does not appear to be the Tenth Circuit’s
interpretation of the statute. In Farm Bureau Federation v. Babbitt, 199 F.3d 1224,
1231-32 (10th Cir. 2000), the Tenth Circuit found that Section 10(j) was an addition to
the statute, not a replacement of Section 10(a):
Congress added section 10(j) to the Endangered Species Act in 1982 to address
the Fish and Wildlife Service's and other affected agencies' frustration over political
opposition to reintroduction efforts perceived to conflict with human activity.
Although the Secretary already had authority to conserve a species by introducing
it in areas outside its current range, Congress hoped the provisions of section 10(j)
would mitigate industry's fears experimental populations would halt development
projects, and, with the clarification of the legal responsibilities incumbent with the
experimental populations, actually encourage private parties to host such
populations on their lands. H.R.Rep. No. 97–567, at 8 (1982)…
The Tenth Circuit therein also confirmed that, even prior to the enactment of Section
10(j), the Secretary had been authorized to introduce a species outside of its current
range. The Tenth Circuit concluded that Section 10(a) authorized FWS to introduce a
threatened plant population outside of its current range without designating it as
experimental.
Plaintiff next argues that FWS can introduce an experimental population outside
of its current range pursuant to Section 10(j), only if it determines by regulation as
specified by 16 U.S.C. § 1539(j)(2)(B) (emphasis added), that the experimental
population is essential to the conservation of the species. 16 U.S.C. § 1539(j)(1)
defines an experimental population as one which is “wholly separate geographically
from the nonexperimental populations of the same species.” Plaintiff claims that,
because the geographic location of the research population herein is separate from the
existing plant population, it must be “experimental,” as defined by Section 10(j).

11

Defendants respond that the term “experimental population,” as defined by
Section 10(j) and 50 C.F.R § 17.80(a), applies only when said population is “wholly
separate geographically from the nonexperimental populations of the same species.”
Defendants argue that the locations of the research populations herein are actually
within the current range of the existing populations and therefore the research
populations do not qualify as Section 10(j) “experimental populations.” Defendants
note that the 1993 Draft Recovery Plan for the threatened plants (DOI-000925-1058)
mapped their existence (DOI-000936) within a rectangular range of 27 miles from east
to west and 19 miles from north to south. (DOI-000939.)
Plaintiff replies that, because BiOp intended the plant introductions to be “far
enough from current populations to avoid negatively influencing genetic flow,” they
must be separate, and thus experimental.
“Congress purposely designed section 10(j) to provide the Secretary flexibility
and discretion in managing the reintroduction of endangered species” under the ESA.
Farm Bureau Federation, 199 F.3d at 1233. Thus, FWS has flexibility in interpreting
“current range” and “wholly separate geographically” to address the context of the
particular species. This Court is to defer to FWS’s interpretation if it does not conflict
with the plain language of the ESA. Forest Guardians v. United States Fish and
Wildlife Service, 611 F.3d 692, 706 (10th Cir. 2010).
Plaintiff admits that additional intensive surveying would be required to ensure
that the proposed populations would be separate from the current population. (DOI–
000793) Yet Plaintiff did not actually contrast the EA’s maps of the proposed plots with

12

the maps in Draft Recovery Plan to support its claims to the IBLA. Plaintiff has failed to
meet its burden of proving that the research population herein would be “wholly
separate geographically” from the current range of the threatened plants.
The Court concludes that FWS’s issuance of the July 26, 2012 permit to CSU
was appropriate and not arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.
D.

ALLEGED NEPA VIOLATIONS
1.

The Scoping Process

Plaintiff claims that several of BLM’s actions leading up to its authorization of the
research project on federal lands are also improper and should be reversed. Plaintiff
claims that BLM violated the NEPA and the FLPMA, the latter through violations of the
White River Resource Management Plan (“RMP”), the BLM Manual 6840 (“Manual”)
and the valid, existing rights that Plaintiff’s members own through their leaseholds and
federal rights-of-way.
Plaintiff claims that BLM violated the NEPA by disregarding the scoping
procedure mandated by 40 C.F.R. § 1501.7, in that BLM failed both to adequately
announce public meetings and to document the comments made and the alternatives
proposed at such meetings. Plaintiff also asserts that BLM mischaracterized its
procedure as scoping because BLM failed both to involve the public and to consider the
proposed alternatives.
Plaintiff argued to IBLA (BLM-001479) and reiterates here that BLM did not
identify the meeting of March 20, 2013, as a scoping meeting in its posting in the

13

Register. Plaintiff also argues that BLM did not address the issues that Plaintiff raised,
the identification of the meeting and its proposed use of an MOU, at the March 20, 2013
meeting in its Final EA/DR, as required by the NEPA Handbook Sections 6.3.2 at pg. 39
and 8.3.3 at pg. 78. (BLM-000888, 000927.) Citing to 40 C.F.R. §1503.4, Plaintiff also
argues that BLM’s failure to address contemporaneously the issues that Plaintiff raised
at the September 11, 2013 meeting, as described in the NEPA Handbook (BLM000914), rather than in its Final EA/DR violated NEPA.
Defendants respond that the procedure regarding scoping is inapplicable herein.
The Court agrees in part with Defendants. 40 C.F.R. § 1501.7 dictates the
scoping procedure for an EIS, whereas BLM produced an EA herein. However, NEPA
places an obligation on BLM “to consider every significant aspect of the environmental
impact of a proposed action.” Forest Guardians, 611 F.3d at 711. Because BLM
addressed this obligation through an EA and concluded that an EIS was unnecessary,
the process set forth in 40 C.F.R. § 1501.7 is inapplicable. Nonetheless, 43 C.F.R. §
46.305(a) requires BLM to “provide for public notification and public involvement” in the
preparation of the EA, although it also vests BLM with discretion to determine the
methodology therefor.
BLM described its external scoping process in its Final EA/DR. (BLM-001282.)
It identified the March 12, 2013 posting in the NEPA register, the attendance by BLM at
the meetings of March 20 and of September 11, 2013 - which Plaintiff attended, and the
15 day public comment period that began on July 23, 2013, when BLM issued its draft
EA and which it announced by letters dated July 18, 2013 to the stakeholders.

14

The record shows that BLM, in accordance with 43 C.F.R. § 46.305(a), clearly
informed the stakeholders about the research project through its communications and
its detailed Draft EA and that it received public comments on the project. BLM’s
process, regardless of whether or not it improperly named the meeting, constituted
adequate public notification which, in fact, resulted in public involvement, including that
of Plaintiff. See Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1279 (10th
Cir. 2004). (“NEPA's public involvement requirements are not as well defined when an
agency prepares only an EA and not an EIS.”)
A second general aim of NEPA is to ensure that an agency will inform the public
that it has considered environmental concerns in its decision making process. See
Forest Guardians, 611 F.3d at 711. As identified in its Order, IBLA identified various
instances of BLM’s consideration of environmental concerns in the Final EA. (BLM001625-6.) For example, the EA identified that three wells existed within one-half mile
of three research population plots. The EA stated that pre-existing wells, facilities, and
rights-of–way would continue, provided they “would not preclude the survival or
recovery of the species.” The EA noted that, while 11 of 12 of the research plots are on
leaseholds, the additional effects on lease activities could involve only three sites: those
which were not currently subject to “no surface occupancy stipulations” (“NSO”),
“controlled surface use,” or detrimental slopes that are undesirable for development.
The EA stated that recovery of resources could still occur with directional drilling. The
EA also stated that maintenance and construction of existing rights-of-way would
continue provided they do not preclude the survival or recovery of the species. It noted

15

that none of the existing or proposed rights-of-way were located within 50 meters of a
plot. The EA quantified that the research project would add 15 acres of land restrictions
for mineral development during the initial ten years, which could thereafter increase to
450 acres, constituting an increase of land encumbered by restrictions of only
approximately 0.5 percent.
Consistent with NEPA, BLM considered both the impact of the action proposed in
the Draft EA and as well as the impact of taking no action. Utah Envtl. Cong. v.
Bosworth, 439 F.3d 1184, 1195 (10th Cir. 2006). In its Order, IBLA noted that BLM
effectively had no other suitable alternatives to the locations that it identified for the
research population plots. (BLM-001631.) The IBLA Order documents that BLM
strategically located the plots so as to minimize their impact on the leaseholders, and no
stakeholder suggested any alternative locations for the proposed plots. Hence, the
Court concludes that BLM adequately informed the public of its consideration of the
environmental concerns of the research project, consistent with Forest Guardians,
supra.
2.

The Irretrievable Commitment of Resources

Plaintiff argues that BLM impermissibly committed predetermination, an
irreversible and irretrievable commitment of resources, before undertaking the EA
analysis. Plaintiff alleges that documents undisclosed at the IBLA level reveal that BLM
made its commitment of resources by letter dated May 21, 2012. 6 (BLM-001024.) BLM
had thereby declared its support of CSU’s request for a Section 10 permit for its

6

The Court notes that this letter is included in the record twice at BLM-001024 and 001048.
16

proposed research project. BLM also stated therein that it had given permission to CSU
to conduct the research on lands that it administered, and that it would help identify
suitable research plots. Id.
Plaintiff argues that early actions taken by BLM, FWS, and CSU prior to BLM’s
notice about the March 12, 2013 public meeting, forced BLM to approve the research
project in its Final EA/DR to avoid losing the seeds that CSU had already collected.7
These early actions include: a) BLM’s issuance of the July 26, 2012 permit to CSU;8 b)
a September 22, 2012 Assistance Agreement between FWS and CSU whereby FWS
partially funded the project in the amount of $6,000 (BLM-001742-56.); c) CSU began
growing seeds in its green house, with FWS/BLM knowledge, in January 2013 (BLM000557.); and d) FWS’s amendment to its Assistance Agreement with CSU to increase
the partial funding by $54,000 on February 14, 2013 (BLM-001760-2.).
Defendants respond that none of the activities described by Plaintiff constitute an
irreversible and irretrievable commitment of resources. Defendants argue that Plaintiff
would need to show that the July 26, 2012 permit for seed collection predetermined the
decision of when and where to plant the seeds. Defendants argue that the permit
neither authorized the planting of the threatened plants on federal lands nor identified
the location of any proposed research plots on them.
Defendants next note that the purpose of the Assistance Agreements was to
explore the possible establishment of new populations of the threatened plants in
7

Plaintiff claims that CSU had gathered seeds in June 2012 pursuant to a BLM permit (BLM000177), but the record is inconclusive on this allegation and said “permit” is not appealed.
8
The Court notes that Plaintiff misinterprets the record in part. FWS granted to CSU the July
26, 2012 permit to collect seeds, not BLM as Plaintiff alleges.
17

suitable areas. (BLM-001745.) CSU’s proposed activities, as accepted through the
initial Agreement, included a “mixture of laboratory, greenhouse and field studies” (BLM001726) in addition to the reintroduction of the threatened plants in yet to be determined
locations. (BLM-001727.) The Agreement required CSU to consult BLM regarding
progress and upcoming plans. (BLM-001727.) The Agreement incorporated by
reference the assurances from CSU’s Application that the project would comply with all
relevant environmental standards, laws and policies. (BLM-001735, 1746.) The
amended Agreement did not relax these assurances of compliance. (BLM-001760.)
Defendants thus conclude that the Agreements neither authorized the planting of plants
on federal lands nor identified the location of any proposed research plots on them.
Although it was FWS, not BLM, that granted to CSU the July 26, 2012 permit to
collect seeds, the Court notes that BLM did support CSU’s efforts to obtain approval of
the research project, as evidenced by its letter of May 21, 2012, and its participation
within the Agreements. Notably, BLM explained in the Final EA that it worked with FWS
to expedite the planning process to accommodate the project staff. FWS implemented
the term “research population” (BLM-001311) and thus avoided the more extensive
procedure required for an experimental population. BLM also finalized the EA by the
end of September 2013, for its approval by its Colorado State Director, before she
retired. (BLM-00045.)
“A petitioner must meet a high standard to prove predetermination. …
[P]redetermination occurs only when an agency irreversibly and irretrievably commits
itself to a plan of action that is dependent upon the NEPA environmental analysis

18

producing a certain outcome, before the agency has completed that environmental
analysis-which of course is supposed to involve an objective, good faith inquiry into the
environmental consequences of the agency's proposed action.” Forest Guardians, 611
F.3d at 714.
In the instant case, the record as described above does not meet the high
standard necessary to prove predetermination. Neither the actions of BLM nor the
actions of FWS committed BLM to the planting of seeds or transplants on federal lands.
Although BLM and FWS were supportive of the eventual planting of research
populations on federal lands, this receptiveness did not constitute predetermination.
The permit and Agreements did not authorize CSU to unilaterally plant the research
plots; rather, CSU needed consent from both FWS and BLM to plant them. Presumably
FWS and BLM would withhold their consent if the Final EA/DR determined that such
action was inappropriate. Predetermination is not present “simply because the agency's
planning, or internal or external negotiations, seriously contemplated, or took into
account, the possibility that a particular environmental outcome would be the result of its
NEPA review of environmental effects.” Id. at 715. BLM took the necessary actions to
facilitate what became the ultimate decision of the Final EA/DR, but these actions did
not individually or collectively commit it to implementing that ultimate decision. See 40
C.F.R. § 1506.1(d); Los Alamos Study Grp. v. U.S. Dept. of Energy, 692 F.3d 1057,
1066-68 (10th Cir. 2012) (The approval of ancillary, interlocutory actions is not
predetermination.) Hence, the Court concludes that BLM did not violate NEPA by
committing any impermissible predetermination.

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E.

Federal Land Policy and Management Act
1.

Resource Management Plan

The FLPMA mandates the development of the RMP to guide BLM’s management
of public lands. 43 U.S.C. § 1712, 43 C.F.R. 1601.1. Pursuant to 43 C.F.R. § 1601.0-2,
BLM approved its RMP (BLM-00606-836) in 1997 to provide this guidance. (BLM000604.) Plaintiff argues that the RMP limits the mechanisms for implementing the
recovery of the threatened plants to surface use restrictions or to acquisition of private
lands with suitable habitat. (BLM 000635-6.) Plaintiff notes that the RMP does not
specifically authorize the creation of “research populations” or re-seeding or
transplanting the plants for their recovery. (BLM-000635-6.) Plaintiff argues that BLM
could have included the option to create new habitat through the use of research
populations in the RMP had it so intended. Therefore, Plaintiff argues that BLM’s use of
the research populations violated the RMP.
Defendants respond that the use of the research population is consistent with the
RMP’s Objective regarding Threatened and Endangered Plant Species, to “Promote the
recovery of Federally listed and proposed threatened or endangered plant species.”
(BLM-000635.) Relying on 43 C.F.R. § 1601.0-5(b),9 Defendants note that IBLA stated
that conformance with a land use plan is achieved when an action is “specifically
provided for in the plan, or if not specifically mentioned, [is] … clearly consistent with the
terms, conditions, and decisions of the approved plan.” (BLM-0001631.) In addition,
9

43 C.F.R § 1601.0-5 now defines Conformance to mean “that a resource management action shall be
clearly consistent with the plan components of the approved [RMP]...” See 81 FR 89661, effective
January 11, 2017. This revised definition is substantively similar to the former § 1601.0-5(b). 43 C.F.R. §
1601.9(c)(1) mandates that the actions that an agency takes before it adopts a new RMP after January
11, 2017 must also be “clearly consistent with the terms, conditions, and decisions of the approved plan.”

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Defendants note that IBLA specifically found that the research project “clearly
implements and conforms to the goals” of the RMP. (BLM-001632.)
Again, the Court notes that IBLA’s construction of the regulation is entitled to
“substantial deference.” Utah Envtl. Cong. V. Troyer, 479 F.3d 1269, 1281 (10th Cir.
2007). The Court concurs that BLM’s use of a research population is consistent with
the RMP’s Objective to promote the recovery of threatened species. Hence, the Court
concludes that BLM did not violate its RMP.
2.

BLM Manual 6840

Plaintiff argues that BLM violated its Manual because, although the Manual
authorizes the use of experimental populations in its Sect. H.2.b and c, it does not
authorize the use of research populations. Plaintiff argues that BLM violated the
Manual through its complicity with FWS in order to avoid what should have been the
mandatory designation of the research populations as experimental.
Defendants respond that BLM is not legally bound to implement the Manual as it
was not promulgated in accordance with APA procedures. They also argue that the
Manual does not impose a duty on BLM to establish an experimental population of the
threatened plants.
Defendants are correct that the Manual does not require BLM to establish an
experimental population of the threatened plants. The Manual states at H.2.b. “The
BLM shall cooperate and assist in establishing experimental populations of listed
species on BLM-managed lands when such establishment is consistent with BLM land
use plans and policy…” (BLM-001077.) As discussed above, FWS, not BLM, has the

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statutory authority to designate a population of a species as experimental. Had FWS
designated an experimental population, BLM would have been required to “cooperate
and assist” in its establishment. However, because FWS did not so designate the
population, BLM’s duty under this provision never materialized. The Court concludes
that BLM did not violate its Manual.
3.

Valid Existing Rights

Plaintiff argues that BLM violated the valid existing rights of its members by
locating the plots of the research populations of the threatened plants on their federal oil
and gas leaseholds and near their federal rights-of-way. Plaintiff cites caselaw that has
recognized valid existing rights, the Manual’s requirement that the BLM honor valid
existing rights, and the RMP’s stated goal of honoring valid existing rights. Plaintiff
notes that existing NSOs and COAs on some leaseholds restrict activity on mapped
populations of the plants, but not on the entire surface of the leased lands. Plaintiff also
argues that BLM is eroding the rights of its members through the location of the
threatened plants as its members will be subject to the statutory protections accorded to
the threatened plants.
Defendants respond that Plaintiff merely alleges the possibility of injury to the
rights of its members but cites no actual or imminent injury. Defendants also argue that
the members of Plaintiff did not receive unfettered rights through their leaseholds.
Defendants note that IBLA found that all the “leases are subject to Section 6 of the
standard lease terms” which requires that lessees terminate operations that would
destroy threatened or endangered species (BLM-001633), and that BLM may require

22

“reasonable measures” of its lessees to “minimize adverse impacts...not addressed in
the lease stipulations at the time operations are proposed.” 43 C.F.R. § 3101.1-2.
The Court concludes that, although the research plots will affect the land under
lease to Plaintiff’s members and their rights-of-way, given the parameters of said rights,
Plaintiff has shown no injury to those rights. Thus, no relief is available to them.
IV. CONCLUSION
For these reasons, the Court concludes that the FWS and BLM agency actions
were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law, and that neither FWS nor BLM violated the ESA, the NEPA, or the FLPMA.
Accordingly, the Court affirms the FWS and BLM agency actions.
DATED: August 16, 2017
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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