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Guardians v. Jewell

United States District Court, D. Utah, Central Division

February 13, 2017

S.M.R. JEWELL, ET AL., Defendant.


          David Nuffer District Judge.

         District Judge David Nuffer Plaintiffs, WildEarth Guardians and Grand Canyon Trust, move to amend the complaint.[1]Defendants, Sally Jewell in her official capacity, United States Bureau of Land Management (BLM), and United States Forest Service (Service), (collectively “the government”) oppose the motion[2] on the ground that the proposed amendments would be futile.[3] Plaintiffs reply in support of their motion.[4]

         The Motion is DENIED IN PART and GRANTED IN PART because judicial review of an agency's decision to not supplement an environmental impact study is not permitted under § 706(1) of the Administrative Procedure Act, but courts may nonetheless order agencies to do a supplemental environmental impact study.


         Plaintiffs' claims all relate to a coal-mining lease in Flat Canyon. As currently pleaded, plaintiffs allege that “in issuing the Flat Canyon Lease, Federal Defendants relied on a nearly 15 year old environmental analysis and completely overlooked a number of potentially significant environmental impacts, including new information, that should have been considered in their decision as to whether issuance of the lease was in the public interest.”[5] The government argues that the involved agencies “re-examined [the old environmental analysis] and considered its adequacy to support a lease sale.”[6] In the end, the agencies “concluded that supplementation of the [earlier environmental analysis] was not required to hold a lease sale or issue a lease.”[7] The Service memorialized its decision in a Supplemental Information Report (SIR).[8] And the BLM memorialized its decision in a Determination of NEPA Adequacy (DNA).[9]

         Besides a few grammatical changes, plaintiffs' amendments to the Complaint mostly seek to change the third cause of action. As currently pleaded, the third cause of action only alleges that the government's issuance of the Flat Canyon lease was arbitrary, capricious, and an abuse of discretion; all properly considered under the APA's § 706(2) judicial review provision. The amendment seeks to “clarify[y] that [the third cause of action] is also brought under 5 U.S.C. § 706(1), which authorizes courts to ‘compel agency action unlawfully withheld.'”[10] Plaintiffs also seek a complementary addition to the prayer for relief: “Order Federal Defendants to prepare a Supplemental Environmental Impact Statement pursuant to NEPA.”[11]

         The government resists these amendments first because Supreme Court precedent requires courts to consider an agency's decision to supplement an environmental analysis only under the 706(2) arbitrary and capricious standard.[12] And second, the amendments are resisted because the record clearly indicates that the agencies “did in fact assess whether supplementation is required, ” thus rendering moot § 706(1) review.[13]


         Rule 15 of the Federal Rules of Civil Procedure states, in relevant part, that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” The Supreme Court enumerated several reasons why a motion to amend a pleading should be denied: “[1] undue delay, [2] bad faith or dilatory motive on the part of the movant, [3] repeated failure to cure deficiencies by amendments previously allowed, [4] undue prejudice to the opposing party by virtue of allowance of the amendment, [5] futility of amendment.”[14]

         The government focusses only on the fifth reason, the alleged futility of plaintiffs' amendment. “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.”[15]

         The agencies' decisions to not supplement the environmental impact statement will only be reviewed under § 706(2).

5 U.S.C. § 706 in relevant part states:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law

         In Marsh v. Oregon Natural Resources Council[16] the Supreme Court considered the appropriate standard for review:

Petitioners argue that the reviewing court need only decide whether the agency decision was “arbitrary and capricious, ” whereas respondents argue that the reviewing court must make its own determination of reasonableness to ascertain whether the agency action complied with the law. In determining the proper standard of review, we look to § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, which empowers federal courts to “hold unlawful and ...

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