2020-06-16_ENFORCEMENT - C1980007

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High Country Conservation Advocates v. United States Forest..., 951 F.3d 1217 (2020) Fork Coal Mining Area." More specifically, the North Fork SFEIS recognizes the "need ... to provide for the conservation and management of roadless area characteristics," including "sources of drinking water, important fish and wildlife habitat, semi -primitive or primitive recreation areas ... and naturally appearing landscapes." It also recognizes the need to "facilitat[e] exploration and development of coal resources in the North Fork coal mining area." The specific project purpose thus echoes the Forest Service's general statutory mandate of balancing multiple possible uses. And the Pilot Knob Alternative would appear to fit within the stated project goals: it provides for conservation in one roadless area and facilitates the development of coal resources in two others. 1111 However, the Forest Service dismissed this alternative from detailed consideration "because the Colorado Roadless Rule is considering access to coal resources within the North [Fork] Coal Mining Area over the long-term based on where recoverable coal resources might occur." Its explanation is based solely on the fact that the Pilot Knob Alternative would protect more land and provide access to fewer tons of coal than Alternative B (reinstating the entire North Fork Exception). But that factor is relevant to only one of the agency's established objectives—providing for long-term coal -exploration and mining opportunities. It does not address the Forest Service's other objective—providing management direction for conserving roadless areas in Colorado. This one- sided approach conflicts with the agency's obligation under NEPA to "provide legitimate consideration to alternatives that fall between the obvious extremes." Dombeck, 185 F.3d at 1175. Under the agency's logic, every alternative except Alternative B could have been eliminated from detailed study merely because it forecloses long-term coal mining opportunities. 1121 QED: The Forest Service's rationale for eliminating the Pilot Knob Alternative is arbitrary. In light of the agency's stated objectives, the proffered explanation does not establish that the alternative was rejected as too remote, speculative, impractical, or ineffective. Where the agency omits an alternative but fails to explain why that alternative is not reasonable, *1225 the EIS is inadequate. See Utahns for Better Transp., 305 F.3d at 1170-71. This failure is similar to BLM's failure in Richardson. In that case, BLM eliminated an alternative that would have closed the Otero Mesa to mining, stating it was inconsistent with the project purpose of determining which lands "are suitable for leasing and subsequent development." 565 F.3d at 710. We wESTvrw explained that the project "purpose does not take development of the Mesa as a foregone conclusion. To the contrary, the question of whether any of the lands in the plan area [we]re `suitable' for fluid minerals development ... [was] precisely the question the planning process was intended to address." Id. at 711 (emphasis omitted). We rejected the argument "that it would be impractical or ineffective under multiple - use principles to close the Mesa to development," holding the agency "was required to include such an alternative in its NEPA analysis, and the failure to do so was arbitrary and capricious." Id. (quotations omitted). Similarly, the agency's elimination of an alternative from detailed study in this case was arbitrary and capricious because its explanation for doing so was inconsistent with its stated purpose. 2 1131 In its briefs, the Forest Service asserts that the idled Elk Creek Mine, located in the Pilot Knob Roadless Area, presents distinct long-term opportunities for coal access that would be foreclosed by the Pilot Knob Alternative but not by Alternative C. But this is not the explanation the Forest Service gave for eliminating the Pilot Knob Alternative. We "may affirm agency action, if at all, only on the grounds articulated by the agency itself." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1565 (10th Cir. 1994). We cannot consider a "post -hoc rationalization" for eliminating an alternative from consideration in an EIS. Utahns for Better Transp., 305 F.3d at 1165. Because the North Fork SFEIS does not state that the Pilot Knob Alternative was eliminated from detailed study because ofthe existence of the Elk Creek Mine, we cannot affirm the agency's decision on that basis. 3 The dissent adds that the Pilot Knob Alternative, unlike Alternative C, would foreclose access to existing federal coal leases or private leases and recoverable coal. But this fact does not render the Pilot Knob Alternative unreasonable. Alternative A—the no -action alternative—would also have foreclosed access to existing federal coal leases, private leases, and recoverable coal. But that did not prevent the Forest Service from considering it. Further, although Alternative C would not *1226 foreclose access to any existing federal coal leases, it would nevertheless prohibit coal mining in part of the Sunset Roadless Area subject to a proposed lease modification. The Forest Service also argues that the Pilot Knob Alternative is not significantly distinguishable from Alternative C.4 We disagree. Alternative C would protect 7100 acres of wilderness, whereas the Pilot Knob Alternative would protect 4900 acres. That is, the Pilot Knob Alternative would protect