NEWS FLASH - April 19, 2024 - Alberta Park, Wolf Creek, CO.
US District Court finds* District court was wrong to vacate agency authorizations* Federal Alaska conservation act (ANILCA) supports access to parcel
"The Tenth Circuit on Friday overruled a lower court and reinstated federal agencies' authorizations for a right-of-way easement to develop a ski resort village in Colorado.A federal district court has sent the approvals back to agencies, saying they were based on the same deficient documents as previously vacated authorizations - but the US Court of Appeals for the Tenth Circuit said that decision was wrong because the agencies proposed different options for the project. ..."
Quoting, JUSTIA US LAW:
Rocky Mountain Wild v. Dallas, No. 22-1438 (10th Cir. 2024)
Justia Opinion Summary
The court concluded that it had jurisdiction over the matter under the practical finality rule, and that the Conservation Groups had standing. The court held that the district court incorrectly applied the law of the case doctrine because the Agencies considered a different alternative when issuing the 2019 ROD. The court also concluded that ANILCA requires the USFS to grant access to the LMJV Parcel.
The court determined that even if the Conservation Groups could show error under NEPA, they had not shown that any alleged error was harmful. Finally, the court held that the Conservation Groups failed to successfully challenge the 2018 BiOp under the ESA, and that the Agencies correctly allowed the ITS to cover not only the proposed easement, but also LMJV’s proposed development.
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Seems to me this is our marching orders.Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024
I. BACKGROUND
A. Factual History
B. Land Exchange Litigation
C. Right-of-Way Alternative
D. Right-of-Way Litigation
II. DISCUSSION
"We start by assessing whether we have jurisdiction over this appeal and whether the Conservation Groups have standing to pursue it. Deciding these questions in the affirmative, we then assess the district court’s application of the law of the case doctrine. We conclude the district court erroneously applied that doctrine. Finally, we assess the Conservation Groups’ APA challenge to the 2019 ROD and 2018 BiOp under ANILCA, NEPA, and the ESA, ultimately affirming the USFS’s grant of the right-of-way and the Agencies’ extension of the § 7 ITS to cover the LMJV Parcel. ..."
A. Jurisdiction
1. Administrative Remand Rule
2. Practical Finality Rule
3. Standing
B. Law of the Case Doctrine
C. APA Standard of Review
D. ANILCA
E. NEPA
1. NEPA Overview
2. Direct and Indirect Effects
"First, we review the Conservation Groups’ challenge to how the USFS categorized the effects of the right-of-way in the EIS and 2019 ROD. The Conservation Groups allege that the USFS acted arbitrarily and capriciously in categorizing the LMJV’s proposed development as an indirect effect of the right-of-way, rather than a direct effect.11 We disagree, but nevertheless conclude that the Conservation Groups have failed to demonstrate prejudice from the alleged categorization error.
Under NEPA’s implementing regulations, direct effects are those “caused by the action [that] occur at the same time and place,” and indirect effects are “caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8. For effects in either of these categories, the agency must evaluate the “‘ecological[,] . . . economic, [and] social’ impacts of a proposed action.” High Country Conservation Advocs. v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1190 (D. Colo. 2014) (alterations in original) (quoting 40 C.F.R. § 1508.8).
Under the regulatory definitions, LMJV’s proposed development is an indirect effect of the right-of-way. The development plans have yet to be set and are thus removed in time, excluding them from the definition of “direct effects.” But they are nevertheless foreseeable, thereby bringing them within the ambit of “indirect effects.” See 40 C.F.R.
§ 1508.8.§ 1508.8. Furthermore, the plans would cause “induced changes in the pattern of land. But even assuming the Conservation Groups are correct that the development should have been characterized as a direct effect of the right-of-way alternative, they fail to identify any harmful impact from that presumed mischaracterization. The Conservation Groups merely state that categorizing an effect as a direct effect properly informs the public of an immediate effect. They assert that “[c]orrect categorization
. . . allows consistent comparison of effects across a reasonable range of alternatives that may result in differing temporal and spatial impacts.” Response Br. at 89. But the Conservation Groups do not explain what change in the analysis or conclusion would result if the USFS had categorized LMJV’s development as a direct effect rather than an indirect effect. Nor do they identify any harm caused by the USFS’s alleged failure to categorize LMJV’s development proposal as a direct effect. See Richardson, 565 F.3d at 704; WildEarth Guardians, 703 F.3d at 1183. Thus, the Conservation Groups have failed to meet their burden.
Our independent review of the record indicates that the USFS carefully considered the potential effects of developing the LMJV Parcel into a resort village. ..."
Along with explaining all the inevitable consequences of bulldozing the underground hydrology - along with all the above ground disruptions to this nearly pristine watershed landscape at the source-waters of the Rio Grande River.
3. Cooperating Agencies
4. Major Federal Action
F. ESA (Environmental Site Assessment)
"Finally, we address the Conservation Groups’ challenge to the 2018 BiOp and accompanying ITS under the ESA. “[I]n examining whether the [FWS’s] actions violate the ESA, we rely on the standards of review provided in the APA.” Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1252 (10th Cir. 1998). We conclude the Agencies did not violate the ESA by extending a permit for the incidental take to the LMJV Parcel under § 7, nor was any conclusion of the 2018 BiOp or corresponding ITS arbitrary and capricious. ..."
1. ESA Overview
2. Propriety of § 7 Analysis
"... In sum, the Agencies properly considered the right-of-way and the LMJV development under § 7 of the ESA and issued an ITS covering both the direct and incidental effects of the federal action on the lynx. We affirm the Agencies’ decision to include the LMJVParcel in the scope of the § 7 take analysis.19 "
3. Other Conclusions of the 2018 BiOp and ITS
III. CONCLUSION
"We VACATE the district court’s order and AFFIRM the 2018 BiOp (Biological Opinion) and 2019 ROD (Record of Decision)."
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Rocky Mountain Wild v. Dallas, Nos. 22-1438, 22-1439 EID, Circuit Judge, concurring:
I agree that we must resolve this appeal as described in the Court’s opinion because of how the parties litigated this case. I therefore join the Court’s opinion in full. However, I write separately to clarify that for the purposes of this case we assume, but cannot here decide, that provisions of law such as NEPA and the ESA may constrain the Secretary’s power to grant access to inholdings pursuant to ANILCA. We have not yet considered the effect of the “[n]otwithstanding any other provision of law” clause contained in § 3210(a) of ANILCA. Nor did the parties raise its application in this case. Accordingly, the question of how ANILCA interacts with other, potentially conflicting statutes remains open to resolve in a future case.
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It seems to me, pretty logical to assume that LMJV developers have already been wooing the Mineral County Commissioners big time in anticipation of this ruling.
Furthermore, it seems to me that getting the Mineral County Commissioners up to speed on the far reaching implications of that development is of first order importance.
I remember from the last time around, folks over in Creede liked painting this as a local issue, but it's not! The Rio Grande River should make that crystal clear, but it takes informed people to take the time to clearly explain. Can you help?
The immense irreparable damages that this development would inevitably inflict upon the underground hydrology of the Alberta Park watershed, needs to be spelled out by experts. Can you help?
Not only that, but also finding ways to convey the sheer hubris of this project, and the host of real world factors that LMJV's starry eyed developers choose to ignore. Do you have expertise in any aspect of municipal (Creede, Silverton, Telluride, Ouray, small Mtn towns.) governance especially regarding all the budget line items, that translate into costly responsibilities that must be met. Can you help?
I share the County Commissioners contact information and implore you to please keep it civil, constructive, and concise.
We want to educate, not antagonize! Which, trust me I know, can be difficult, still necessary or we lose.
County Commissioners are citizens doing their civic duty and deserve your respect, they are very busy, so keep it concise.
Mineral County Commissioners
Jesse Albright
Ramona Weber
R. Scott Lamb
Mineral County Courthouse
1201 N. Main
P.O. Box 70
Creede, CO 81130
I have heard back from the Mineral County Commissioners and was told:
"We meet the first and third Wednesday of every month at 9 am.
And, there has been no new submissions from the village at this time." (4-26-24)
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If you want to get involved please contact one of the
organizations that have been doing all the heavy lifting:
San Luis Valley Ecosystem Council
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