2020-06-16_ENFORCEMENT - C1980007

Home Browse Search

High Country Conservation Advocates v. United States Forest..., 951 F.3d 1217 (2020) Colorado Roadless Areas map." 36 C.F.R. § 294.43(c)(ix). There is no provision in the Rule that relates only to the Pilot Knob Roadless Area; rather, severing and vacating the North Fork Exception as applied only to the Pilot Knob Roadless Area would require rewriting the regulation. Mountain Coal specifically asks us to add the words "except Pilot Knob" to the regulation rather than striking any portion of the text. In light of the structure of the rule, we conclude that the portion of the North Fork Exception applying to the Pilot Knob Roadless Area is not severable from the remainder of the Exception because it does not operate independently. Moreover, the North Fork SFEIS dealt with the North Fork Coal Mining Area as a whole, 9 rather than only with the Pilot Knob Roadless Area. We conclude that the Forest Service acted arbitrarily and capriciously in its analysis of the entire North Fork Exception by failing to study in detail the Pilot Knob Alternative. Under our traditional equitable powers to fashion appropriate relief, which are retained under the APA, 5 U.S.C. § 702, the appropriate remedy is vacatur of the entire North Fork Exception. IV For the foregoing reasons, we VACATE the district court's judgment and REMAND the case for entry of an order vacating the North Fork Exception. KELLY, Circuit Judge, concurring in part and dissenting in part. I concur in the court's decision that NEPA did not require consideration of the methane flaring alternative but respectfully *1230 dissent from the conclusion that U.S. Forest Service was required to consider the Pilot Knob alternative in detail. This time around, the Forest Service considered three alternatives in detail and eliminated 12 others from such consideration, including the Pilot Knob alternative. Those three alternatives, Alternatives A, B, and C, represented a reasonable range of acreage available for mining, within which the Pilot Knob alternative fell. An agency is not required to consider alternatives that do not meet the purposes or objectives of the federal action. Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1085 (10th Cir. 2014). The categorical prohibition on access to coal in Pilot Knob, given "the State's interest in not foreclosing opportunities for exploration and development of coal resources," III Aplt. App. 266, was a sufficient reason for not considering it in greater detail. The "alternatives analysis" need only satisfy a "rule of reason." Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999). This is not a case where the agency defined the objectives in such a manner that they could only be satisfied by one alternative. Agencies need only briefly discuss their reasons for rejecting a possible alternative. Utahns for Better Transp.v. U.S. Dep't of Transp., 305 F.3d 1152, 1166 (10th Cir. 2002) (quoting 40 C.F.R. § 1502.14(a)). The court concludes that the Pilot Knob alternative advances the purposes of the action, and that the Forest Service's explanation for rejecting it is arbitrary and capricious. According to the court, the rejection "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)," which it argues is a rationale that could be applied to every other alternative. I The court also concludes that because the rejection did not mention the Elk Creek Mine (which is within Pilot Knob), the argument that Alternative C did not foreclose future access to existing federal coal or private leases constitutes a post -hoc rationalization. Both the Pilot Knob alternative (5,000 acres) and Alternative C (7,100 acres) removed acreage from coal development in order to preserve certain roadless areas. Unlike the Pilot Knob alternative, however, Alternative C did not foreclose future access to existing federal coal leases or private leases and recoverable coal. The SFEIS contained a map that identified existing and proposed coal leases and indeed mentioned the Elk Creek Mine, although it did point out that production idled in December 2015, in favor of final reclamation. III Aplt. App. 272, 273 Fig. 3-1; see also IV Gov't Supp. App. 940 (noting that the operator continued to show interest and another operator could theoretically operate in the future). On this record, I disagree with the court's conclusion that the agency engaged in a "post -hoc rationalization" regarding the Elk Creek Mine. The agency clearly articulated that it excluded the Pilot Knob alternative because it failed to "preserve[ ] the option of future coal exploration and coal -related surface activities." III Aplt. App. 270. It then discussed sites where coal mining has taken place and where existing mines sit on federal leases within the affected area, including the Elk Creek Mine. Id. at 272. The Pilot Knob alternative foreclosed access to that mine, idled or not, which