2020-06-16_ENFORCEMENT - C1980007

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High Country Conservation Advocates v. United States Forest..., 951 F.3d 1217 (2020) fits squarely within the agency's rationale for .rejection. The agency was not required to explicitly "state that the Pilot *1231 Knob Alternative was eliminated from detailed study because of the existence of the Elk Creek Mine" in order to allow a court to affirm on those grounds. Rather, its reasoning needed to be "clearly disclosed in, and sustained by, the record." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994). I believe that standard was met here. The court's contrary holding risks distorting the administrative record by ignoring obviously relevant facts that were considered but not expressly mentioned in an agency's brief discussion of its reasons for eliminating an alternative. I disagree that this case is analogous to N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009), where the agency took oil and gas development of Otero Mesa as a foregone conclusion and should have analyzed an alternative that would have precluded development. Here, the agency evaluated in detail a no -action alternative (Alternative A) that would have preserved all 19,700 acres of the North Fork area as roadless. A no -action alternative that continues existing development in an area is a "far cry" from an alternative that would prohibit development entirely. Id. at 711. The court is correct that we cannot sustain the agency's decision on the ground that the Pilot Knob alternative was not "significantly distinguishable" from Alternative C. Id. at 708-09. The agency did not advance this reason for elimination in its SFEIS and we must affirm, "if at all, on grounds articulated by the agency itself." Utahns for Better Transn., 305 F.3d at 1165. Yet the court's analysis of this issue necessarily grafts arbitrary benchmarks onto the rule of reason test and consequently curtails the discretion Congress vested in agencies through NEPA. The court observes that the Pilot Knob alternative protects "nearly 30% less land" and affords access to "35% more coal" than Alternative C while affecting "entirely separate coal resources." The court also accepts plaintiffs' portrayal of the record as establishing that "the two alternatives would result in significantly different environmental impacts because the Pilot Knob Roadless Area is geographically separate from [the other roadless areas] and has dissimilar habitat features." I doubt that geographic separation of the areas, standing alone, renders the Pilot Knob alternative significantly distinguishable. Plaintiffs also assert that Pilot Knob is "ecologically unique" because it "contains the only 1NEST.AW winter range for deer and bald eagles, the only severe winter range for elk, and the only historic and potential future habitat for the imperiled Gunnison sage -grouse." Aplt Br. at 7. But the portions of the record cited demonstrate that these ecological features exist in other parts of the state, just not in other parts of the areas under consideration. See III Aplt. App. 279, 325, 328-39, 331. The record may establish that Pilot Knob is ecologically different from the other roadless areas, but it falls fall short of establishing that it is "ecologically unique," even assuming that such a standard would properly factor into the significantly distinguishable branch of the rule of reason analysis. The court identifies distinctions between the alternatives, but it is not at all clear that they are significant enough to trigger NEPA's statutory mandates. The court does not provide a limiting principle for this method of reexamining the merits of alternatives. Future parties are likely to seize on catchwords like "30% less land protected," "35% more coal made accessible," and "dissimilar habitat features" for what makes an alternative sufficiently distinguishable, notwithstanding a lack of grounding in NEPA or its implementing regulations. The court's opinion may provide a roadmap for delaying federal action rather than promoting informed decision- making *1232 through careful consideration of reasonable alternatives. Perhaps some other case may necessitate such line -drawing, but this is not it. Because this analysis is not necessary to the court's conclusion, prudence counsels against conducting it. The Colorado Roadless Rule, including the 19,700 -acre North Fork Exception, was the product of years of deliberation, periods of notice and comment, and compromise. Our review of an agency's decision to eliminate an alternative must be informed by a "rule of reason and practicality." Biodiversity Conservation All. v. Bureau of Land Mgmt., 608 F.3d 709, 714 (10th Cir. 2010). "The range of reasonable alternatives is not infinite," Aron, 762 F.3d at 1083 (internal quotation and citation omitted), and agencies cannot be expected to consider alternatives of finer and finer distinction. See Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1012 (10th Cir. 2012) ("By necessity, an agency must select a certain number of [alternatives] for serious study and eliminate the rest without detailed analysis."). This court's role under NEPA is not to "substitute our judgment" about what alternatives are most effective to achieve an action's purpose, but only to "determine whether the necessary procedures have been followed." Assocs. Working for Aurora's Residential Env't v. Colo. Dep't