Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 1 of 20 Civil Action No. 1:14-cv-284 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CITIZENS FOR A HEALTHY COMMUNITY, and HIGH COUNTRY CITIZENS ALLIANCE, vs. Plaintiffs, UNITED STATES FOREST SERVICE, an agency of the U. S. Department of Agriculture, and SCOTT G. FITZWILLIAMS, in his official capacity as Appeal Deciding Officer and Forest Supervisor, White River National Forest, U.S. Forest Service, and RHONDA O BYRNE, in her official capacity as Appeal Reviewing Officer, Black Hills National Forest, U.S. Forest Service, and LEVI BROYLES, in his official capacity as District Ranger, Paonia Ranger District, Gunnison National Forest, U.S. Forest Service, Federal Defendants. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs, CITIZENS FOR A HEALTHY COMMUNITY and HIGH COUNTRY CITIZENS ALLIANCE (collectively Citizens ) allege as follows: INTRODUCTION 1. Citizens bring this civil action for declaratory and injunctive relief against the above named Federal Defendants, UNITED STATES FOREST SERVICE, SCOTT G. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 1 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 2 of 20 FITZWILLIAMS, RHONDA O BYRNE, and LEVI BROYLES (collectively Forest Service or Federal Defendants ), in accord with the Administrative Procedure Act ( APA ), 5 U.S.C. 701 et seq., for violations the National Environmental Policy Act ( NEPA ), 42 U.S.C. 4321 et seq., NEPA s implementing regulations promulgated by the Council on Environmental Quality ( CEQ ), 40 C.F.R. 1500.1 et seq., as well as U.S. Forest Service, Department of Agriculture regulations, 36 C.F.R. 220 et seq. 2. Citizens action arises from the Forest Service s decision to approve the Federal 11-90-9 #3 Well Surface Use Plan of Operations ( 11-90-9 #3 SUPO ) through a categorical exclusion ( CE ). The Forest Service s decision authorizes the construction of an approximately 3-acre drill pad site for the purpose of drilling up to 5 gas wells, as well as the development of associated oil and gas facilities and infrastructure. 3. The Forest Service approval through a CE violates the prescribed regulatory standards for approval of such development by exceeding the criteria limitations on grounddisturbing activity. 4. The Forest Service has also unlawfully failed to perform required NEPA analyses for a development project that may result in significant direct, indirect, and cumulative impacts to the environment. 5. Citizens seek a declaratory judgment and injunctive relief to remedy the violations complained of herein. Citizens also seek an award of attorneys fees, costs, and other expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412(d). COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 2 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 3 of 20 JURISDICTION & VENUE 6. This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1346 because this action involves the United States as a Defendant and arises under the laws of the United States. 7. This action reflects an actual, present, and justiciable controversy between Citizens and the Forest Service. Citizens interests will be adversely affected and irreparably injured if the Forest Service continues to violate NEPA and Forest Service regulations as alleged herein, and if this challenged decision is implemented. These injuries are concrete and particularized and fairly traceable to the Forest Service s challenged decision, providing the requisite personal stake in the outcome of this controversy necessary for this Court s jurisdiction. 8. The requested relief is authorized by 28 U.S.C. 2201, 2202 and 5 U.S.C. 705, 706. 9. The requested relief would redress the actual, concrete injuries the Forest Service caused to Citizens by failing to comply with NEPA mandated duties and the regulations promulgated pursuant to NEPA. 10. The challenged agency actions are final and subject to judicial review pursuant to 5 U.S.C. 702, 704, and 706. 11. Citizens have exhausted any and all available and required administrative remedies. 12. Venue in this Court is proper pursuant to 28 U.S.C. 1391(e). Defendant Forest Service s Paonia District Ranger, in Colorado, approved the challenged 11-90-9 #3 SUPO. A substantial part of the events and omissions giving rise to this case occurred in Colorado, and this COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 3 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 4 of 20 case involves public lands, resources, and environmental interests managed by the Forest Service Paonia District Ranger. PARTIES 13. Plaintiff CITIZENS FOR A HEALTHY COMMUNITY ( CHC ) is a nonprofit organization located in Hotchkiss, Colorado. CHC was founded in 2010 for the purpose of protecting people and their environment from irresponsible oil and gas development in the Delta County region. CHC s members and supporters include farmers, ranchers, vineyard and winery owners, and other concerned citizens impacted by oil and gas development, who currently and plan to continue to live in, use, and enjoy the communities and landscapes affected by the challenged Forest Service action. CHC brings this action on its own behalf and on behalf of its adversely affected members. 14. Plaintiff HIGH COUNTRY CITIZENS ALLIANCE ( HCCA ) is a nonprofit organization located in Crested Butte, Colorado with over 750 members. HCCA was founded in 1977 to conserve and protect wild places, rivers, and wildlife in and around Gunnison County. HCCA has worked on oil, natural gas, and coal bed methane development in Gunnison County for over a decade to prevent irreparable harm to its members interests. HCCA s members use and plan to continue to live in, use, and enjoy the communities and landscapes affected by the challenged Forest Service action. HCCA brings this action on its own behalf and on behalf of its adversely affected members. 15. The Citizens and their members have concrete and particularized interests in the valley and surrounding landscape of the North Fork of the Gunnison River (hereinafter North Fork ), which includes the project site s location, and, in particular, the protection of fragile COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 4 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 5 of 20 land, wildlands, air, water, habitat, wildlife, and communities impacted by oil and gas development and production. 16. The Citizens and their members interests are deeply rooted in this part of Colorado s Western Slope where the Citizens members live, work, and recreate. These interests include the land, wildlands, air, rivers, streams, habitat, wildlife, topography, and other components of healthy, intact landscapes in the North Fork. Citizens and their members use and enjoy this area for hiking, hunting, camping, photography, aesthetic enjoyment, spiritual contemplation, and other vocational, scientific, and recreational activities. Citizens and their members intend to continue to use and enjoy these Forest Service public lands, wildlands, wildlife habitat, rivers, streams, and healthy environments frequently and on an ongoing basis now and in the future. 17. The aesthetic, recreational, scientific, educational, and procedural interests of Citizens and their members have been adversely affected and irreparably injured by the process the Forest Service used for approving the 11-90-9 #3 SUPO through a CE, and by the Forest Service s decision itself. The adverse impacts that will result from the Forest Service s process and decision threaten actual, imminent, concrete, and particularized harm to Citizens and their members interests. 18. The relief sought by Citizens would help remedy the injuries suffered by Citizens and their members. The Forest Service would be required to revisit the challenged 11-90-9 #3 SUPO and take action to meaningfully evaluate and prevent or abate significant impacts that would result from Forest Service s authorization of oil and gas development in this area. The relief sought would redress these injuries. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 5 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 6 of 20 19. Defendant UNITED STATES FOREST SERVICE is an agency within the United States Department of Agriculture and is responsible for managing public lands and resources in Colorado, including oil and gas exploration and development on and affecting Forest Service lands in the North Fork, and, particularly the lands implicated herein. In this capacity, the Forest Service is responsible for implementing and complying with federal law, including the federal laws implicated by this action. 20. Defendant SCOTT G. FITZWILLIAMS is the Forest Supervisor of the White River National Forest for the U.S. Forest Service, is the Appeal Deciding Officer for the decision challenged herein, and, in that official capacity, is responsible for implementing and complying with federal law, including the federal laws implicated by this action. 21. Defendant RHONDA O BYRNE is a District Ranger in the Northern Hills Ranger District of the Black Hills National Forest, was the Appeal Reviewing Officer for the decision challenged herein, and, in that official capacity, is responsible for implementing and complying with federal law, including the federal laws implicated by this action. 22. Defendant LEVI BROYLES, is a District Ranger in the Paonia Ranger District of the Gunnison National Forest, authored the challenged decision herein, and, in that official capacity, is responsible for implementing and complying with federal law, including the federal laws implicated by this action. STATUTORY BACKGROUND 23. NEPA is our basic national charter for the protection of the environment. 40 C.F.R. 1500.1. Recognizing that each person should enjoy a healthful environment, NEPA ensures that the federal government uses all practicable means to assure for all Americans safe, COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 6 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 7 of 20 healthful, productive, and esthetically and culturally pleasing surroundings, and to attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences, among other policies. 43 U.S.C. 4331(b). 24. NEPA regulations explain, in 40 C.F.R. 1500.1(c), that: Ultimately, of course, it is not better documents but better decisions that count. NEPA s purpose is not to generate paperwork even excellent paperwork but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. 25. Agencies shall integrate NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts. 40 C.F.R. 1501.2. 26. To accomplish this purpose, NEPA sets out three categories of review for agency action. First, the preparation of an environmental impact statement ( EIS ) is required for major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. 4332(2)(C); 40 C.F.R. 1501.4; 40 C.F.R. 1501.4(a). Second, certain actions may be categorically excluded ( CE ) from full NEPA Review. NEPA regulations define CEs as actions which do not individually or cumulatively have a significant effect on the human environment. 40 C.F.R. 1508.4. A categorically excluded activity may nonetheless require full NEPA analysis if there are extraordinary circumstances, such as when the action causes significant impacts. Id.; 36 C.F.R. 220.6. Third, any actions that do not fall into either of the two categories above should be evaluated through an environmental assessment ( EA ) to determine whether the proposed action s impacts may be significant. 40 C.F.R. 1508.9. If the COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 7 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 8 of 20 EA concludes that the project may have a significant impact on the environment, then an EIS must be prepared. Id. 27. In determining whether an action requires an EA, an EIS, or is categorically excluded, NEPA requires agencies to consider direct, indirect, and cumulative impacts, as well as the significance of an action. 42 U.S.C. 4332; 40 C.F.R. 1501.4; 40 C.F.R. 1508.25(c); 40 C.F.R. 1508.27. 28. A cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 40 C.F.R. 1508.7. 29. 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(b). 30. NEPA requires agencies to consider, among other things: (1) the degree to which the action may establish precedent for future actions with significant effects or represents a decision in principle about a future consideration; and (2) whether the action is related to other actions with individually insignificant but cumulatively significant impacts. 40 C.F.R. 1508.27(6); 40 C.F.R. 1508.27(7). The action is significant if it is reasonably anticipated to have a cumulatively significant impact on the environment. 40 C.F.R. 1508.27(7). Such significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. Id. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 8 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 9 of 20 31. In addition, NEPA regulations require agencies to consider the impacts of connected actions, cumulative actions, and similar actions. 40 C.F.R. 1508.25(a). All three of these actions should be discussed in the same impact statement. Id. 32. In accordance with these definitions, an agency must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum. 33. Forest Service regulations require scoping on all proposed projects, including those that would appear to be categorically excluded. In determining the scope of a proposed project, the responsible Forest Service officer is required to consider the cumulative impacts of connected, cumulative, and similar actions. STATEMENT OF FACTS 34. On June 14, 2012, oil and gas industry developer SG Interests submitted to the Forest Service a Surface Use Plan of Operations ( 11-90-9 #3 SUPO ), identified as Federal 11-90-9 # 3 Application for Permit to Drill ( APD ). 35. On July 9, 2012, the U.S. Department of Agriculture, Forest Service, Grand Mesa-Uncompahgre-Gunnison National Forests, Paonia Ranger District, in a letter to interested parties initiating scoping, announced its intent to authorize SG Interests to exercise and conduct surface operations associated with accessing, drilling, testing, and completing a multiple-well drill pad for up to 5 gas wells within the Gunnison National Forest. 36. The proposed drill pad is located in Township 11 South, Range 90 West, Section 9 on Federal lease COC-8905 in Gunnison County, Colorado. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 9 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 10 of 20 37. Plaintiffs CHC and HCCA both submitted scoping comments to the Forest Service regarding SG Interests 11-90-9 #3 SUPO, on August 9, 2012, raising concerns identified herein. 38. The Forest Service, in a Decision Memorandum dated March 12, 2013 and signed by Defendant Broyles (hereinafter DM1 ), authorized SG Interests proposed 11-90-9 #3 SUPO through a Categorical Exclusion pursuant to Section 390 of the Energy Policy Act of 2005, 42 U.S.C. 15942. 39. Among other requirements, Section 390 mandates as a condition of approving an oil and gas development activity through a CE that site-specific analysis in a document prepared pursuant to NEPA has been previously completed. Id. at 15942(b)(1). 40. In an effort to satisfy this requirement, the Forest Service identified that prior sitespecific analysis was carried out for the Gunnison Energy 16 Well Master Development Plan. This plan was also approved through the use of a CE, and, thus, contained no site-specific NEPA analysis of the reasonably foreseeable impacts of oil and gas development. 41. Plaintiffs CHC and HCCA both submitted an administrative appeal to the Forest Service regarding DM1, on May 1, 2013 and May 5, 2013 respectively, identifying the Forest Service s failure to perform any prior site-specific NEPA analysis, as well as other concerns with the proposed project. 42. On June 14, 2013, Citizens received notice from the Forest Service Appeals Deciding Officer that Defendant Ranger Broyles was withdrawing his Decision, identified herein as DM1, approving SG Interests 11-90-9 #3 SUPO due to administrative issues. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 10 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 11 of 20 43. On September 4, 2013, the Forest Service issued a second Decision Memorandum, signed by Defendant Broyles (hereinafter DM2 ), again authorizing SG Interests proposed 11-90-9 #3 SUPO through a CE. This time, however, the Forest Service justified its use of a CE by applying Forest Service regulations at 36 C.F.R. 220.6(e)(17). 44. In identifying categories of actions excluded from analysis in an EIS or EA, Forest Service regulations provide in part: Approval of a Surface Use Plan of Operations for oil and natural gas exploration and initial development activities, associated with or adjacent to a new oil and/or gas field or area, so long as the approval will not authorize activities in excess of any of the following: (i) One mile of new road construction; (ii) One mile of road reconstruction; (iii) Three miles of individual or co-located pipelines and/or utilities disturbance; and (iv) Four drill sites. (Emphasis added). 45. The Forest Service s approval of 11-90-9 #3 SUPO would authorize oil and gas development by SG Interests, including: the construction of an approximately 3-acre drill pad, sized for drilling up to 5 gas wells; the construction of approximately 1/3 mile (~1700 feet) of access road with co-located gas and water lines; and 5.5 miles of surface HDPE pipeline to transport wastewater to the McIntyre Flowback Pits (which will be shared with adjacent oil and gas development SG Interests is pursuing within the Bull Mountain Unit, identified as the Bull Mountain Master Development Plan). 46. The construction of 5.5 miles of HDPE pipeline exceeds the 3-mile regulatory threshold for a CE under Forest Service regulation, 36 C.F.R. 220.6(e)(17), by at least 2 miles. 47. The regulation allowing the Forest Service to approve development under a CE makes no distinction between a permanent or temporary pipeline, nor whether such pipeline is constructed on Forest Service, state, federal, or private lands. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 11 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 12 of 20 48. The Forest Service s decision to approve the 11-90-9 #3 SUPO through a CE failed to consider the entire 5.5-mile length of the HDPE pipeline. Rather, the agency considered only the surface disturbing activities that will take place on Forest Service lands, thus counting only the 1.45 miles of pipeline on Forest Service lands and disregarding the other 4.05 miles of pipeline disturbance. 49. The Forest Service s decision on the 11-90-9 #3 SUPO failed to account for the agency s broader NEPA mandate, relying exclusively on the specific regulatory criteria for a CE to justify approval and, thus, failing to consider or analyze potentially significant direct, indirect, and cumulative impacts of the proposed action. 50. Of particular concern, here, are the potentially significant cumulative impacts that may result from development of the 11-90-9 #3 SUPO when considered with other past, present, and reasonably foreseeable oil and gas development in the area. 51. As recognized by the Forest Service decision to withdraw DM1, there has been no prior site-specific NEPA analysis of the direct, indirect, and cumulative impacts of oil and gas development in the area. 52. The North Fork is the target of increasing interest from to oil and gas industry who wish to develop the region for its mineral resources. In recent years, this interest has included the nomination of approximately 30,000 acres of public lands to be included in a Bureau of Land Management ( BLM ) oil and gas lease sale, proposals for master development plans ( MDPs ) that collectively include hundreds of oil and gas wells, as well as individual well drilling requests. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 12 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 13 of 20 53. SG Interests is one of the main industry proponents seeking to extract oil and gas in the North Fork. Since the early 2000s, the Forest Service has approved similar SG Interests SUPOs and APDs located in the North Fork. For example, the Henderson #1R SUPO is located on the same federal lease as the 11-90-9 #3 SUPO (COC-8905). The Henderson #1R SUPO was similarly approved with a CE in 2006. 54. The cumulative impacts of the Henderson #1R SUPO, the 11-90-9 #3 SUPO, as well as other projects within this geographic area, have never been analyzed. 55. In addition, SG Interests is the industry proponent of the Bull Mountain MDP, which is approximately 2-miles away from the 11-90-9 #3 SUPO challenged herein. The Bull Mountain MDP is a proposed 150-well oil and gas development with a project area of approximately 19,645 acres of federal and private mineral estate. 56. The Bull Mountain MDP and the 11-90-9 #3 SUPO challenged herein will share oil and gas infrastructure, including gas and water pipelines, as well as the McIntyre Flowback pits. 57. The Bull Mountain MDP principally consists of BLM managed minerals with primarily private surface ownership. The BLM s Uncompahgre Field Office released a Preliminary EA for this project on March 22, 2012. 58. Citizens participated in BLM decisionmaking by submitting administrative comments on the Preliminary EA. The BLM determined that a finding of no significant impact ( FONSI ) was unsupportable, and decided to prepare an EIS for the project, which is still pending. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 13 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 14 of 20 59. The Forest Service did not consider the Bull Mountain MDP, the Henderson #1R SUPO, or other reasonably foreseeable development in a cumulative analysis prior to authorizing SG Interests proposed 11-90-9 #3 SUPO. 60. The 11-90-9 #3 SUPO is located in an area with many other resource values that may be impacted directly, indirectly or cumulatively by the proposed development. 61. The proposed project is in the West Muddy Creek area; a tributary for the North Fork of the Gunnison River and, consequently, the Colorado River. The proposed pad site would be approximately 600 feet away from Little Henderson Creek. 62. SG Interests states that the primary source of the fresh water required for drilling is Little Henderson Creek, and that either trucks or poly-pipeline would be used to transport the water to the drill pad. 63. SG Interests estimates that 150,000 barrels of water would be needed for completing the first of up to 5 gas wells. 64. The pit water necessary for the proposed 11-90-9 #3 SUPO would be transported approximately 5.5 miles from the McIntyre Flowback Pits, which would be shared other wells, including those from the Bull Mountain MDP. 65. The proposed 11-90-9 #3 SUPO is also within a Colorado Parks and Wildlife ( CPW ) mapped critical elk habitat, which is the only Winter Concentration Area and Winter Range in this geographic area. The location is also within elk summer and overall range. 66. More broadly, the North Fork contains important wildlife habitat that may also be impacted by the current and proposed mineral extraction in the area. Intensive development of COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 14 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 15 of 20 the North Fork would reduce suitable wildlife habitat, threaten the land s integrity, and impact important water resources of the Upper Colorado River Basin. 67. On October 22, 2013, Citizens submitted an administrative appeal of the Forest Service DM2, authorizing SG Interests 11-90-9 #3 SUPO through a CE. 68. On December 3, 2013, the Appeal Reviewing Officer Defendant O Byrne submitted a Recommendation Memorandum for Citizens appeal of the 11-90-9 #3 SUPO to Appeal Deciding Officer Defendant Fitzwilliams, recommending that Defendant District Ranger Broyles decision be affirmed and that the Appeal be denied. 69. On December 5, 2013, Appeal Deciding Officer Defendant Fitzwilliams incorporated Defendant O Byrne s recommendation, affirming Defendant Broyles decision and denying Citizens appeal and request for relief. paragraphs. CLAIMS FOR RELIEF A. THE FOREST SERVICE VIOLATED NEPA AND AGENCY REGULATIONS BY APPROVING THE PROPOSED 11-90-9 #3 SUPO THROUGH A CATEGORICAL EXCLUSION. (First Claim: Violation of NEPA) 70. The Citizens hereby restate and incorporate by this reference all preceding 71. The Forest Service is required to comply with NEPA, NEPA s implementing CEQ regulations, as well as the Forest Service s own NEPA compliance regulations. 36 C.F.R. 220.1(b). 72. The Forest Service s NEPA regulations do not lessen the applicability of CEQ regulations, rather, the agency is required to use the CEQ regulations in conjunction with its own. 36 C.F.R. 220.1(b). COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 15 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 16 of 20 73. The Forest Service used agency regulations at 36 C.F.R. 220.6(e)(17) to approve SG Interests 11-90-9 #3 SUPO. The specific terms of this regulation requires that, among other things, there be no more than 3 miles of individual or co-located pipelines and/or utilities disturbance. Here, the Forest Service s decision results in the construction of 5.5 miles of HDPE poly-pipeline, exceeding the CE s requirement by over 2.5 miles. This 2.5-mile exceedance is a prima facie violation of the CE s requirement. 74. The Forest Service s actions are arbitrary, capricious, an abuse of discretion, in excess of statutory authority and limitations, short of statutory right, and not in accordance with the law and procedures required by law, because the Forest Service improperly approved the 11-90-9 #3 SUPO with a CE despite its prima facie violation of the CE s requirements. 5 U.S.C. 706(2)(A), (C), (D). paragraphs. B. THE FOREST SERVICE VIOLATED NEPA BY FAILING TO CONSIDER DIRECT, INDIRECT, AND CUMULATIVE IMPACTS TO THE ENVIRONMENT WHEN APPROVING THE 11-90-9 #3 SUPO THROUGH A CATEGORICAL EXCLUSION. (Second Claim: Violation of NEPA) 75. The Citizens hereby restate and incorporate by this reference all preceding 76. The Forest Service must comply with NEPA before making any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. 4332(2)(c)(v); see also 40 C.F.R. 1501.2, 1502.5(a). 77. NEPA imposes action-forcing procedures that require agencies to take a hard look at environmental consequences. These environmental consequences may be direct, indirect, or cumulative. 40 C.F.R. 1502.16, 1508.7, 1508.8. COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 16 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 17 of 20 78. Certain agency actions may be categorically excluded from full NEPA review. NEPA regulations define categorical exclusions as actions which do not individually or cumulatively have a significant effect on the human environment. 40 C.F.R. 1508.4. 79. A categorically excluded activity may nonetheless require full NEPA analysis if there are extraordinary circumstances in which a normally excluded action may have a significant environmental effect. 40 C.F.R. 1508.4. 80. A federal action affects the environment when it will or may have an effect on the environment. 40 C.F.R. 1508.3. 81. Federal agencies determine whether direct, indirect, or cumulative impacts are significant by accounting for both the context and intensity of those impacts. 40 C.F.R. 1508.27. 82. The Forest Service must consider NEPA s significance criteria, including the potential for cumulatively significant impacts, before approving a project through a CE. 83. Forest Service policy recognizes that the agency must consider NEPA significance factors prior to authorizing development through a CE, explaining that extraordinary circumstances must be interpreted in light of the entire [CEQ] regulation and its accompanying policy, and, further, explicitly instructing the Forest Service to read all sections of its policy handbook in conjunction. 84. Forest Service regulations on extraordinary circumstances provides a list of special resource conditions that the Forest Service should consider when determining whether the proposed action may have significant environmental effects within the meaning of NEPA. These regulations, however, do not define the types of effects the agency must consider (i.e., COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 17 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 18 of 20 direct, indirect, or cumulative), nor the factors that should guide its significance determinations. 85. Federal agencies must take the appropriate steps to ensure that their application of the CE authority is limited to those situations where there is truly only an insignificant or minor effect on the environment. 86. Here, the Forest Service failed to consider direct, indirect, and cumulative impacts of the 11-90-9 #3 SUPO when approving the proposed development through a CE; rather, the Forest Service isolated SG Interests proposed SUPO, viewing it in a vacuum. 87. The Forest Service s actions are arbitrary, capricious, an abuse of discretion, in excess of statutory authority and limitations, short of statutory right, and not in accordance with the law and procedures required by law, because the Forest Service unlawfully failed to consider the direct, indirect, and cumulative impacts of the proposed action. 5 U.S.C. 706(2)(A), (C), (D). RELIEF REQUESTED WHEREFORE, the Plaintiffs respectfully request that this Court: A. Declare that Forest Service s actions violate NEPA, and regulations and policies promulgated thereunder; B. Set aside the Forest Service s actions; C. Suspend and enjoin development of the 11-90-9 #3 SUPO, as well as all other SUPO and APD level oil and gas activity authorized by the Forest Service through a CE, pending full compliance with NEPA, and NEPA s regulations and policies; COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 18 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 19 of 20 D. Issue such relief as the Plaintiffs subsequently request or that this Court may deem just, proper, and equitable; E. Retain jurisdiction over this matter until the Forest Service fully remedies the violations of law enumerated in this complaint; and law. F. Award Plaintiffs their fees, costs, and other expenses as provided by applicable Respectfully submitted this 31 st day of January 2014, _/s/ Kyle J. Tisdel Kyle J. Tisdel (CO Bar No. 42098) Megan Anderson O Reilly (NM Bar No. 126305) WESTERN ENVIRONMENTAL LAW CENTER 208 Paseo del Pueblo Sur, Suite 602 Taos, New Mexico 87571 (p) 575.613.8050 (f) 575.751.1775 tisdel@westernlaw.org anderson@westernlaw.org Counsel for Plaintiffs Citizens for a Healthy Community and High Country Citizens Alliance Citizens for a Healthy Community P.O. Box 291 Hotchkiss, Colorado 81419 High Country Citizens Alliance P.O. Box 1066 Crested Butte, Colorado 81224 Allison N. Melton (CO Bar No. 45088) HIGH COUNTRY CITIZENS ALLIANCE PO Box 1066 Crested Butte, Colorado 81224 (p) 970.349.7104 (f) 970.349.0164 alli.melton@gmail.com COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 19 of 20
Case 1:14-cv-00284 Document 1 Filed 01/31/14 USDC Colorado Page 20 of 20 Counsel for Plaintiff High Country Citizens Alliance High Country Citizens Alliance P.O. Box 1066 Crested Butte, Colorado 81224 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF PAGE 20 of 20