2020-06-16_ENFORCEMENT - C1980007

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High Country Conservation Advocates v. United States Forest..., 951 F.3d 1217 (2020) particular methane drainage well's gas composition, which was not available at the leasing stage.6 1141 Plaintiffs argue that the Forest Service and BLM had sufficient data to evaluate the Methane Flaring Alternative from the existing operation at the West Elk Mine and the lease -modifications proposal. But they do not offer evidence indicating that the information available at the time was sufficient to analyze the feasibility and environmental impacts of methane flaring without the site-specific exploration data and engineering designs deemed necessary by the agencies. We are mindful that environmental analyses under NEPA must be conducted at "the earliest possible time." 40 C.F.R. § 1501.2. Nonetheless, given the plaintiffs' lack of evidence, we conclude that the elimination of the Methane Flaring Alternative was reasonable. *1228 Second, the Leasing SFEIS explains that MSHA approval, which occurs later in the mine -permitting process, is required for any flare -use proposal. It also notes that, at the time it was issued, MSHA had not approved any flaring operations at active coal mines. 7 In response, plaintiffs contend that the Forest Service and BLM are authorized to condition leases to protect the environment and that BLM in particular is required to ensure that coal leases contain provisions "for the safeguarding of the public welfare." 30 U.S.C. § 187. We agree that the Forest Service and BLM are broadly authorized to create conditions for coal leasing. But they are not the agencies charged with approving flaring. Because at the time they issued the Leasing SFEIS, it was uncertain whether MSHA would approve methane flaring for an active coal mine, we conclude it was reasonable for the Forest Service and BLM to eliminate the Methane Flaring Alternative from detailed study. g Because the Leasing SFEIS contains sufficient discussion of the relevant issues, we are convinced that the agencies took a hard look at the Methane Flaring Alternative. Their elimination from detailed study of the alternative was not arbitrary and capricious. III With respect to the North Fork SFEIS, plaintiffs seek vacatur of the North Fork Exception. Mountain Coal contends that the appropriate remedy is vacatur of the Exception only as applied to the Pilot Knob Roadless Area. "Under the APA, courts `shall' `hold unlawful and set aside agency action' that is found to be arbitrary or capricious. Vacatur of agency action is a common, and often appropriate form of injunctive relief granted by district courts." WildEarth Guardians v. U.S. Bureau of Land MMgmt., 870 F.3d 1222, 1239 (10th Cir. 2017) (quoting 5 U.S.C. § 706(2)(A)). [15] We have taken several different steps when reversing a district court decision and finding a violation of NEPA. We have: "(1) reversed and remanded without instructions, (2) reversed and remanded with instructions to vacate, and (3) vacated agency decisions." Id. The typical remedy for an EIS in violation of NEPA is remand to the district court with instructions to vacate the agency action. See. e.g., Dine Citizens Against Ruining Our Env't v. Bernhardt, 923 F.3d 831, 859 (10th Cir. 2019). But a court "may partially set aside a regulation if the invalid portion is severable," *1229 that is, "if the severed parts operate entirely independently of one another, and the circumstances indicate the agency would have adopted the regulation even without the faulty provision." Ariz. Pub. Serv. Co. v. U.S. E.P.A., 562 F.3d 1116, 1122 (10th Cir. 2009) (quotation omitted). The Colorado Roadless Rule includes a severability clause providing that, "[i]f any provision in this subpart [C.F.R. Title 36, Chapter II, Part 294, Subpart D] or its application to any person or to certain circumstances is held to be invalid, the remainder of the regulations in this subpart and their application remain in force." 36 C.F.R. § 294.48(f). The record of decision accompanying the final rules clarifies that "[t]his provision identifies the Department's intention that, in the event any provision is determined invalid, the remaining portions ofthe rule would remain in force." Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3260 (Jan. 12, 2001). The North Fork Exception is codified in the same subpart as the severability clause. Accordingly, the regulations contemplate vacatur of any provision of the North Fork Exception that is held to be invalid. Mountain Coal urges us to sever and vacate the North Fork Exception only as applied to the Pilot Knob Roadless Area. We turn to the language of the Exception as promulgated to determine whether it contains a severable provision applying only to the Pilot Knob Area. The regulation permits temporary road construction for coal -related surface activities on "certain lands with Colorado Roadless Areas within the North Fork Coal Mining Area of the Grand Mesa, Uncompahgre, and Gunnison National Forests as defined by the North Fork Coal Mining Area displayed on the final