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Guardians v. Zinke

United States District Court, D. Utah

July 8, 2019

WILDEARTH GUARDIANS, and GRAND CANYON TRUST, Plaintiffs,
v.
RYAN ZINKE, et al., Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO EXPAND RECORD AND CONDUCT LIMITED DISCOVERY

          DAVID NUFFER UNITED STATES DISTRICT JUDGE

         Plaintiffs WildEarth Guardians and Grand Canyon Trust (collectively, “WildEarth”) have filed a motion (the “Motion”)[1] for: (1) the addition of certain documents to the administrative record; (2) permission “to conduct limited discovery to fill gaps in the records”; and (3) adjudication of WildEarth's “failure-to-act” claim “without limiting the scope of review to the administrative records.”[2] For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.

         TABLE OF CONTENTS

         Background ...................................................................................................................................... 2

         Discussion ........................................................................................................................................ 4

         Some materials should be added to complete or supplement the record. . ........................... 5

         The BLM's fair-market-value analysis should be added. . ....................................... 5

         Exhibit 34 should be added. . .................................................................................... 6

         Air-quality permits and emission data should be added. . ........................................ 6

         Some materials are not needed to complete or supplement the record. . .............................. 8

         Exhibits 18-31 will not be added ............................................................................. 8

         Regional lease documents will not be added. . ......................................................... 8

         Greater sage-grouse publications will not be added. . .............................................. 9

         Discovery is unnecessary. . ................................................................................................. 10

         Arguments regarding the “failure-to-act” claim are moot. . ............................................... 11

         Order .............................................................................................................................................. 11

         BACKGROUND

         The U.S. Bureau of Land Management (“BLM”) is an agency within the U.S. Department of the Interior. The BLM is responsible for approving applications to lease public lands for the development of federally owned coal and other mineral deposits in accordance with applicable laws, including the Mineral Leasing Act (“MLA”)[3] and National Environmental Policy Act (“NE PA ”).[4] Before the BLM can approve a lease application, the MLA and NEPA require the BLM to prepare either an environmental assessment or an environmental impact statement (“EIS”) to evaluate the lease's effects and determine whether it is in the public interest.[5] If “[t]here are significant new circumstances or information relevant to environmental concerns and bearings on the proposed action or its impacts, ” a supplement to an EIS is required.[6] And where the lease “cover[s] lands the surface of which is under the jurisdiction of” the U.S. Forest Service (“FS”), the lease “may be issued only upon consent of” the FS.[7]

         On or about March 6, 1998, Canyon Fuel Company (“CFC”)[8] submitted an application to the BLM to lease a tract of public land in Utah for coal mining.[9] This tract, which the parties refer to as the “Flat Canyon Tract, ” is on lands within the FS's jurisdiction. On January 3, 2002, the BLM and FS jointly issued a final environmental impact statement (“FEIS”) for the proposed lease (“Lease”).[10] On April 11, 2002, the BLM authorized the Lease, [11] but soon thereafter CFC decided not to pursue it.[12] As a result, the Lease was not “fully approved” at that time.[13]

         Approximately ten years later, CFC again expressed interest in the Lease.[14] Because so much time had passed, the BLM and FS initially believed that the FEIS may be “stale”[15] and that the FES “would not be adequate for leasing without a supplement.”[16] However, after further evaluation, both agencies concluded that the Lease could proceed without supplementing the FEIS.[17] On July 31, 2015, the BLM issued the Lease to CFC without supplementing the FEIS.[18]

         DISCUSSION

         WildEarth commenced this action for judicial review under the Administrative Procedure Act (“A PA ”)[19] to challenge the actions of the BLM and FS related to the Lease.[20] A court reviewing the action of an agency under the APA must, in making its determinations, “review the whole record or those parts of it cited by a party.”[21] This necessarily requires the “whole record” on which the agency acted to be before the court.[22] “The complete administrative record consists of all documents and materials directly or indirectly considered by the agency.”[23]

         An agency cannot “unilaterally determine what constitutes the Administrative Record” or “supplement the Administrative Record submitted to the district court with post hoc rationalizations for its decision.”[24] “However, the designation of the Administrative Record . . . is entitled to a presumption of administrative regularity.”[25] Absent clear evidence to the contrary, courts assume that the record is proper[26] and generally limit their review to that record.[27] While any exception to this general rule is “extremely limited, ”[28] possible justifications include:

(1) the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials; (2) the record is deficient because the agency ignored relevant factors it should have considered in making its decision; (3) the agency considered factors that were left out of the formal record; (4) the case is so complex and the record so unclear that the reviewing court needs more evidence to enable it to understand the issues; and (5) evidence coming into existence after the agency acted demonstrates the actions were right or wrong.[29]

         In this Motion, WildEarth requests that certain material be added to the administrative record, that it be allowed to conduct limited fact discovery, and that consideration of its “failure-to-act” claim not be confined to documents in the administrative record.

         Some materials should be added to complete or supplement the record.

         The BLM's fair-market-value analysis should be added.

         WildEarth contends that the administrative record is incomplete because it does not include the BLM's analysis of the fair market value (“FMV”) of the Flat Canyon Tract's coal reserves, which analysis began on January 23, 2015, and was completed on April 29, 2015.[30]Although the BLM admits that it was “statutorily required to ensure it receive[d]” FMV for the “coal being sold, ”[31] it argues that the analysis in question “was not considered for purposes of making the challenged decision” because “the FMV process was completed after the BLM completed its [NEPA] processes for the lease sale” in 2002.[32] Even if the BLM did not consider this analysis in making its decision to lease the Flat Canyon Tract in 2002, the evidence is clear that the BLM did consider this analysis, directly or indirectly, in making its decision to lease the Flat Canyon Tract in 2015.[33] As a result, the BLM's FMV analysis is necessary to complete the record, and the Motion is GRANTED with respect to it.[34]

         Exhibit 34 should be added.

         WildEarth attached a copy of a 2013 report on the greater sage-grouse to the Motion as “Exhibit 34.”[35] WildEarth asks that this exhibit be added to the administrative record.[36] Because the BLM admits that it considered the information in this exhibit in making its decision to lease the Flat Canyon Tract, [37] it is clear that Exhibit 34 is necessary to complete the administrative record. Accordingly, the Motion is GRANTED as to Exhibit 34.

         Air-quality permits and emission data should be added.

         The FEIS expressly states that emissions at CFC's facilities adjacent to the Flat Canyon Tract “currently meet air quality standards and the Permit-to-Construct issued by the Utah Department of Air Quality, ” and that the Lease “would not lead to additional emissions.”[38] The supplemental information report (“SIR”), which the BLM and FS later prepared and relied on, repeats this statement verbatim and adds: “The air quality permit is primarily concerned with dust deriving from how much coal is moved on the surface of the mine in a given year, and that will not change if this decision is implemented.”[39]

         Despite these representations, the administrative record does not contain any air-quality permit or related emission data. For this reason, WildEarth asks that this material be added to the administrative record.[40] In response, the BLM states that it cannot confirm whether or not it considered this material in its decision to lease the Flat Canyon Tract.[41]

         Based on the contents of the FEIS and SIR, the evidence is clear that the BLM and FS considered this material in connection with the Lease. But even if the BLM and FS had not considered this material, it is equally clear that they should have done so, as the FEIS and SIR purport to be predicated on this material and recognize its relevance. Thus, without this ...


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