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High Country Conservation Advocates v. United States Forest..., 951 F.3d 1217 (2020)
<br />This alternative would remove the
<br />Pilot Knob Roadless Area, about
<br />5,000 acres (about 25%) of the
<br />project area, from the North Fork
<br />Coal Mining Area. This alternative
<br />was dismissed from detailed analysis
<br />because the Colorado Roadless Rule
<br />is considering access to coal resources
<br />within the North Coal Mining Area
<br />[sic] over the long-term based on
<br />where recoverable coal resources
<br />might occur. The Rule preserves the
<br />option of future coal exploration and
<br />development by allowing temporary
<br />road construction for coal exploration
<br />and coal -related surface activities. One
<br />of the State -specific concerns is the
<br />stability of local economies in the
<br />North Fork Valley and recognition of
<br />the contribution that the coal industry
<br />provides to those communities.
<br />Preserving coal exploration and
<br />development opportunities in the area
<br />is a means of providing community
<br />stability.
<br />Instead, the Forest Service offered detailed analyses of three
<br />options: (A) no action, which would preserve all three areas
<br />as roadless; (B) promulgation of the entire North Fork
<br />Exception, permitting mining on 19,700 acres and providing
<br />access to 172 million short tons of coal; and (C) promulgation
<br />of the North Fork Exception excluding "wilderness capable"
<br />lands in the Sunset and Flatirons Roadless *1222 Areas,
<br />which would protect 7100 acres, permit mining on 12,600
<br />acres, and provide access to 95 million short tons of
<br />coal. Ultimately, the Forest Service adopted Alternative B,
<br />reimplementing the entire North Fork Exception.
<br />Subsequently, Mountain Coal resubmitted two applications
<br />for lease modifications, seeking to add a total of
<br />approximately 1720 acres to federal coal leases adjacent
<br />to the West Elk Mine. Approximately 1700 acres of the
<br />area at issue were within the Sunset Roadless Area and
<br />covered by the North Fork Exception. In response to the
<br />requests, the Forest Service and BLM issued a draft of
<br />the Leasing SFEIS. Environmental groups requested that
<br />VVESTLAW
<br />the agencies analyze a Methane Flaring Alternative in
<br />the final version. Flaring converts methane, an especially
<br />potent greenhouse gas, to carbon dioxide, a less potent
<br />greenhouse gas. Under the Methane Flaring Alternative,
<br />Mountain Coal would be required to flare methane, thereby
<br />mitigating the environmental impact. In the Leasing SFEIS,
<br />the agencies eliminated the Methane Flaring Alternative from
<br />detailed study, concluding that evaluating methane mitigation
<br />measures requires site-specific data and engineering designs
<br />unavailable at the leasing stage. With consent from the Forest
<br />Service, BLM approved the modifications.
<br />In the instant litigation, plaintiffs challenge the elimination
<br />from detailed study of the Pilot Knob Alternative in the
<br />North Fork SFEIS and the Methane Flaring Alternative in the
<br />Leasing SFEIS. The district court denied them relief, ruling
<br />the agency actions under NEPA did not violate the APA.
<br />Plaintiffs timely appealed. 1
<br />II
<br />Because NEPA does not provide a private right of action,
<br />the agencies' promulgation of the North Fork SFEIS and the
<br />Leasing SFEIS are reviewed as final agency actions under the
<br />APA. See Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209,
<br />1226 (10th Cir. 2011). We review the district court's decision
<br />de novo. Id.
<br />I11 121 131 Under the APA, we will set aside agency action
<br />only if it "fails to meet statutory, procedural or constitutional
<br />requirements, or ... is arbitrary, capricious, an abuse of
<br />discretion, or otherwise not in accordance with law." N.M.
<br />Cattle Growers Ass'n v. U.S. _Fish_ & Wildlife Serv., 248
<br />F.3d 1277, 1281 (10th Cir. 2001) (quotation omitted). Agency
<br />action is arbitrary and capricious if an agency "has relied
<br />on factors which Congress has not intended it to consider,
<br />entirely failed to consider an important aspect of the problem,
<br />offered an explanation for its decision that runs counter to
<br />the evidence before the agency," or the agency action "is
<br />so implausible that it could not be ascribed to a difference
<br />in view or the product of agency expertise." Motor Vehicle
<br />Mfrs. Ass'n of U.S.. Inc. v. State Farm Mut. Auto. Ins. Co.,
<br />463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
<br />"In performing arbitrary and capricious review, we accord
<br />agency action a presumption of validity; the burden is on
<br />the petitioner to demonstrate that the action is arbitrary and
<br />capricious." *1223 Copar Pumice Co. v. Tidwell, 603 F.3d
<br />780, 793 (10th Cir. 2010) (quotations omitted). We will
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