Rocky Mountain Wild v. Dallas

98 F.4th 1263

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 19, 2024
• Docket: 22-1438
• Status: Published

Opinion

Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 19, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

ROCKY MOUNTAIN WILD; SAN LUIS VALLEY ECOSYSTEM COUNCIL; SAN JUAN CITIZENS ALLIANCE; WILDERNESS WORKSHOP,

Petitioners - Appellees,

v. No. 22-1438

DAN DALLAS, in his official capacity as Forest Supervisor; BRIAN FEREBEE, in his official capacity as Regional Forester; ANNE TIMBERMAN, in her official capacity as Western Colorado Supervisor, UNITED STATES FOREST SERVICE, a Federal Agency within the U.S. Department of Agriculture; U.S. FISH AND WILDLIFE SERVICE, a federal agency within the Department of the Interior.

Respondents - Appellants,

and

TAMARA WHITTINGTON, in her official capacity as Deputy Regional Forester, et al.,

Respondents.

------------------------------

LEAVELL- MCCOMBS JOINT VENTURE, Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 2

Intervenor Respondent. _________________________________

ROCKY MOUNTAIN WILD; SAN LUIS VALLEY ECOSYSTEM COUNCIL; SAN JUAN CITIZENS ALLIANCE; WILDERNESS WORKSHOP,

v. No. 22-1439

DAN DALLAS, in his official capacity as Forest Supervisor; TAMARA WHITTINGTON, in her official capacity as Deputy Regional Forester; BRIAN FEREBEE, in his official capacity as Regional Forester; UNITED STATES FOREST SERVICE, a Federal Agency within the U.S. Department of Agriculture; ANNE TIMBERMAN, in her official capacity as Western Colorado Supervisor; U.S. FISH AND WILDLIFE SERVICE, a federal agency within the Department of the Interior,

LEAVELL-MCCOMBS JOINT VENTURE,

Intervenor Respondent - Appellant. _________________________________

Appeals from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01512-CMA) _________________________________

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Katelin Shugart-Schmidt, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Todd Kim, Assistant Attorney General, with her on the briefs), for Respondents – Appellants.

Aaron D. Van Oort, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota (William Leone, Norton Rose Fulbright US LLP, Denver, Colorado, with him on the briefs), for Intervenor Respondent – Appellant.

Travis E. Stills, Energy & Conservation Law, Durango, Colorado (Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, and Matt Kenna, Public Interest Environmental Law, Durango, Colorado, with him on the brief), for Petitioners – Appellees. _________________________________

Before McHUGH, EID, and ROSSMAN, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

Intervenor Leavell-McCombs Joint Venture (“LMJV”)1 owns a 300-acre parcel of

land within the Rio Grande National Forest in Colorado, abutting the Wolf Creek Ski

Area (“LMJV Parcel” or “Parcel”). LMJV obtained the Parcel through a land exchange

with Appellant U.S. Forest Service (“USFS”) in 1987. The LMJV Parcel was

encumbered with an easement, placing some restrictions on development (“Scenic

Easement”). Development of the LMJV Parcel into a ski resort village was hindered

because the Parcel can be reached only by a gravel road managed by the USFS that is

unusable by vehicles in the winter.

In 2007, after the Colorado Court of Appeals required LMJV to secure year-round

road access to the Parcel before developing it, LMJV invoked the Alaska National

1 In addition to their definitions in the text, a glossary of acronyms is attached in an Appendix to this opinion. 3 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 4

Interest Lands Conservation Act (“ANILCA”), claiming it requires the USFS to grant

access to inholdings within USFS land. The USFS initially proposed a second land

exchange with LMJV to secure access to Highway 160, the highway that serves the Wolf

Creek Ski Area and is closest to the Parcel. To ensure compliance with the Endangered

Species Act (“ESA”), in 2013, the USFS prepared an Environmental Impact Statement

(“EIS”) and worked with Appellant U.S. Fish and Wildlife Service (“FWS”) to secure a

biological opinion (“BiOp”) and an incidental take statement (“ITS”). In 2015, USFS

issued a final Record of Decision (“ROD”) and approved the land exchange. Rocky

Mountain Wild (“RMW”), San Luis Valley Ecosystem Council, San Juan Citizens

Alliance, and Wilderness Workshop (collectively, the “Conservation Groups”)

challenged this action in the United States District Court for the District of Colorado

under the Administrative Procedure Act (“APA”), alleging that it violated the

National Environmental Policy Act (“NEPA”) and the ESA, among other allegations.

In 2017, the district court vacated the USFS decision and remanded to the agency.

The USFS subsequently abandoned the land exchange option and instead

considered a new alternative in the form of a right-of-way easement to LMJV across

USFS land between the Parcel and Highway 160. The USFS consulted with the FWS to

secure a new BiOp and ITS for the proposed action in 2018. The USFS then issued a final

ROD in 2019, approving the easement.

The Conservation Groups challenged this latest ROD under NEPA, the ESA, and

ANILCA. The district court vacated and remanded under the law of the case doctrine,

concluding that it was bound by the reasoning of the district court’s 2017 order.

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According to the district court, the USFS and FWS (collectively, the “Agencies”)

relied on the same flawed EIS and utilized the same flawed reasoning in the 2018

BiOp and 2019 ROD that the district court previously addressed concerning the 2013

BiOp and the 2015 ROD.

The Agencies appeal the district court’s decision vacating the 2018 BiOp and

2019 ROD. At the outset, they argue this court has jurisdiction despite the district

court’s remand to the agency under the practical finality rule. The Agencies also

assert that the district court erred in its application of the law of the case doctrine. As

to the merits, the Agencies defend their actions under NEPA and the ESA. LMJV

joins as an intervenor in the Agencies’ arguments and advances separate arguments

defending the Agencies’ interpretation of ANILCA and responding to other

objections presented to the district court.

The Conservation Groups challenge our subject matter jurisdiction and defend

the district court’s reasoning under the law of the case doctrine. They further respond

that the Agencies’ actions were arbitrary and capricious under NEPA and the ESA,

and that the USFS improperly extended the reach of ANILCA beyond parcels located

in Alaska.

After reviewing the parties’ submissions and pertinent authorities, we vacate

the district court’s order and affirm the Agencies’ decisions. We first conclude we have

jurisdiction over the matter under the practical finality rule, and that the Conservation

Groups have standing. We then hold that the district court incorrectly applied the law

of the case doctrine because the Agencies considered a different alternative when

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issuing the 2019 ROD, and much of the cited reasoning from the district court’s 2017

order was either specifically tailored to the land exchange proposal—as opposed to a

right-of-way proposal—or was expressed in dicta.

Next, under this court’s binding precedent, we conclude ANILCA requires the

USFS to grant access to the LMJV Parcel. Further, we determine that even if the

Conservation Groups could show error under NEPA, they have not shown that any

alleged error was harmful. Finally, we hold that the Conservation Groups fail 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.2

2 The Agencies and Conservation Groups also seek permission to file supplemental briefing. In a footnote in their opening brief, the Agencies note that the Conservation Groups presented several substantive NEPA arguments before the district court that the district court did not address. The Agencies then state “[s]hould the Court determine it is in the interest of justice to resolve the remaining issues in this case without a remand, Appellants would submit supplemental briefing in line with the arguments previously presented to the district court.” Agencies Br. at 19 n.4. The Conservation Groups respond that they “request the opportunity to fully explore and present the issues set forth in administrative filings and the District Court proceedings,” should the court permit supplemental briefing. Response Br. at 87. If we review the 2019 ROD de novo, the Conservation Groups request additional briefing to respond to LMJV’s arguments on appeal that they elected not to address in their response brief. We deny permission to file supplemental briefing. First, Federal Rule of Appellate Procedure 27(a)(1) expressly requires an application for an order or other relief to be made by motion, but the parties have failed to file motions for supplemental briefing. Second, our precedent is clear that:

[w]hen a district court fails to conduct the requisite plenary review and make necessary factual findings to support the affirmance of agency action, we may either vacate its order and remand for further proceedings

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I. BACKGROUND

A. Factual History

In 1986, LMJV’s predecessor and USFS prepared to enter a land exchange, in

which LMJV would trade 1,631 acres of land for 420 acres of USFS land in the Rio

Grande National Forest adjacent to Wolf Creek Ski Area. Rocky Mountain Wild v.

Dallas, No. 15-cv-01342-RPM, 2017 WL 6350384, at *1–*2 (D. Colo. May 19, 2017).

The 420 acres USFS offered in the exchange would overlay Highway 160 and facilitate

LMJV’s development of a ski village adjacent to the Wolf Creek Ski Area. Id. at *1–*3.

USFS reduced the conveyance to 300 acres after finalization of the relevant appraisals,

and the parcel became an inholding which could access Highway 160 only by a

USFS-managed road closed to “motorized traffic” during the winter. Id. The final

exchange occurred in 1987. Id. at *1.

or we may conduct the necessary review ourselves based on the same administrative record considered by the district court.

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). The parties have had sufficient notice and opportunity to address the merits of the Conservation Groups’ APA challenge and have indeed done so in this appeal. And to the extent that the Conservation Groups seek development of the record, “[j]udicial review of agency action is normally restricted to the administrative record.” Citizens for Alts. to Radioactive Dumping v. U.S. Dep't of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007). Indeed, “[i]t is only in extremely limited circumstances, such as where the agency ignored relevant factors it should have considered or considered factors left out of the formal record that we will consider extra-record evidence.” Id. (internal quotation marks omitted). As we now explain, the Conservation Groups make no such showing.

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The USFS also imposed the Scenic Easement on the plot conveyed to LMJV,

limiting development on the property to residential, commercial, and recreational uses

“typical to an all-season resort village.” Agencies App. Vol. I at 236. The Scenic

Easement dictates the architecture of the structures, the building materials that may be

used, and the height of buildings, and prohibits several uses, including feed lots,

commercial greenhouses, airports, and permanent hazardous product storage. The Scenic

Easement also requires the Supervisor of the Rio Grande National Forest to approve

proposed development on the property, which is subject both to waiver by the supervisor

and negotiation and arbitration in the event of a disagreement.

Litigation ensued when LMJV attempted to develop the Parcel, ultimately

curtailing LMJV’s development plans. Wolf Creek Ski Corp. v. Bd. of Cnty. Comm’rs of

Mineral Cnty., 170 P.3d 821 (Colo. App. 2007) (affirming the trial court order voiding

approval of LMJV’s resort development plans). The Colorado Court of Appeals held that

state law “require[d] at a minimum year-around wheeled[-]vehicle access between State

Highway 160” and the planned development. Id. at 830. Because the USFS road “is not

usable by wheeled vehicles during the winter,” the court held the development plan did

not satisfy state law. Id.

In 2010, LMJV submitted a land exchange proposal to the USFS and requested

that the USFS analyze an access road across USFS lands, invoking the USFS’s

obligations to provide access to the Parcel to secure “reasonable use and enjoyment

thereof” under ANILCA. LMJV App. Vol. IX at 2346. ANILCA directs the USFS to

“provide such access to nonfederally owned land within the boundaries of the National

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Forest System as [it] deems adequate to secure to the owner the reasonable use and

enjoyment thereof.” 16 U.S.C. § 3210(a). As part of the land exchange proposal, LMJV

offered to trade approximately 177 acres of the upland portion of its inholding for 205

acres of USFS’s low-lying land that abutted Highway 160. The second alternative was a

right-of-way easement approximately 1,612 feet in length and 60 feet in width.

In an effort to comply with NEPA, the USFS prepared and issued a draft EIS for

public comment. See 42 U.S.C. § 4332(C) (requiring federal agencies to prepare an EIS

for “major Federal actions”). The USFS issued its final EIS in 2014. The EIS considered

three possible alternatives: the proposed land exchange, the access road easement, or no

action. In the “Purpose and Need for Action” chapter of the EIS, the USFS acknowledged

that LMJV has a “legal entitlement” to access its property under ANILCA. LMJV App.

Vol. IX at 2346, 2348.

The USFS issued its final ROD in 2015 (“2015 ROD”). The 2015 ROD concluded

that “access adequate to the reasonable use and enjoyment of the LMJV property”

required “automobile access on a snowplowed road.” LMJV App. Vol. XII at 3227. The

ROD therefore rejected the no-action alternative because it did not meet the USFS’s

obligation under ANILCA to provide access. The ROD further “conclude[d] that

selection of either action alternative would meet” that obligation. Id. After reviewing the

EIS and “all resource areas,” the ROD approved the land exchange because it “provide[d]

the greatest opportunity for the [USFS] to improve [its resource] management abilities

while meeting [its] legal obligations [under] ANILCA.” Id. at 3230.

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In addition to NEPA, the USFS and LMJV also had to comply with the ESA.

Generally, the ESA prohibits the “take” of any endangered or threatened species “within

the United States.” See 16 U.S.C. § 1538(a)(1)(B). Under § 7 and § 10 of the ESA,

incidental take may be exempted or permitted. See id. §§ 1536(b)(4), 1539(a)(1)(B). Per

§ 7, federal agencies must consult with the FWS to “insure” that any action taken by the

consulting agency “is not likely to jeopardize the continued existence of any endangered

[or threatened] species.” Id. § 1536(a)(2). If, after consultation, the FWS determines that

“the taking of an endangered [or threatened] species . . . [is] incidental to the agency

action,” it can “provide . . . a written statement” exempting the incidental take. See id.

§ 1536(b)(4). Such an exempted take is not “considered to be a prohibited taking” under

the statute. Id. § 1536(o)(2). Under § 10, when a state or private party, rather than a

federal agency, is at risk of taking a species, the FWS “may permit” such action “if such

taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful

activity.” Id. § 1539(a)(1)(B).

Regarding the land exchange proposal, the USFS attempted to comply with the

ESA by consulting with the FWS and extending incidental take protections to LMJV

under § 7, rather than requiring LMJV to undergo the § 10 process to insulate themselves

from liability under the ESA. Rocky Mountain Wild, 2017 WL 6350384, at *7.

Concerning the endangered Canada lynx, the FWS concluded that while the land

exchange would result in a slight increase in the number of lynx taken due to increased

traffic along Highway 160, the cumulative effects of the land exchange were “not likely

to jeopardize the continued existence of [the] lynx.” LMJV App. Vol. VIII at 2299. The

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FWS therefore issued a BiOp and an ITS (“2013 BiOp”) exempting a take resulting from

the land exchange on the condition that LMJV comply with certain “mandatory reporting

and monitoring requirements . . . in order for the take exemption in the [ITS] to be valid.”

Id. at 2303.

B. Land Exchange Litigation

Following the FWS’s approval of the land exchange, the Conservation Groups

filed an action in the United States District Court for the District of Colorado. Rocky

Mountain Wild, 2017 WL 6350384, at *1. They sought review of the USFS’s 2015 ROD

under the APA, claiming that the USFS had violated NEPA and the ESA, among other

statutes. Id. The district court set aside the 2015 ROD on several grounds. Id. at *18.

First, it found that the USFS’s attempt to comply with NEPA violated the APA because

the USFS “failed to consider an important aspect of the problem, offered explanations for

its decision that run counter to the evidence before the agency, failed to base its decision

on consideration of all relevant factors, and was wrong as a matter of law.” Id. at *11.

The district court explained that there was no basis for the USFS to conclude in its EIS

and ROD “that the Forest Service had no power or jurisdiction to limit or regulate

development on the federal lands being conveyed to LMJV in the present exchange.” Id.

The district court also held that the USFS’s Scenic Easement on the property

“demonstrates the [USFS’s] actual power to control development.” Id.

Second, the district court determined that the USFS’s interpretation of ANILCA

was contrary to law. Id. The court did not question the USFS’s obligation to provide

access under ANILCA but disagreed with the USFS’s “categorical refusal to consider

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restrictions on the federal exchange parcel based on ANILCA,” rather than applying its

land exchange regulations. Id. at *12 (emphasis added). The district court explained that

“[w]hen a land exchange is selected instead of a proposal under ANILCA, any limitation

on [USFS] power to regulate private property to which access is granted under ANILCA

is inapplicable.” Id. Finally, concerning the ESA challenge, the district court concluded

that the “conservation measures” imposed “in this case do not meet [statutory]

requirements,” and as a result, the court held it was “not necessary to decide whether the

‘take’ authorization [was] legal.” Id. at *15–*16.

Both the Agencies and LMJV appealed. In response, the Conservation Groups

filed a conditional cross-appeal. In 2018, LMJV filed a new “Application for Access,”

encouraging the USFS to proceed with the access road, or right-of-way, alternative. The

Agencies subsequently moved to voluntarily dismiss their appeal, and we granted that

motion. Rocky Mountain Wild v. Dallas, No. 17-1366, No. 17-1408, No. 17-1413, 2018

WL 11222966 (10th Cir. May 14, 2018). The Conservation Groups then moved to

dismiss both LMJV’s appeal and its conditional cross-appeal. Rocky Mountain Wild v.

Dallas, No. 17-1366, 17-1413, 2018 WL 11225766, at *1 (10th Cir. Dec. 11, 2018). We

granted the Conservation Groups’ motion, concluding that we lacked jurisdiction over the

appeal because the USFS engaged in an adjudicatory action in pursuing the land

exchange and the district court functionally remanded the matter to the agency, as

evidenced in part by the USFS’s decision at the time to voluntarily dismiss its appeal and

move forward with the access road alternative. Id. at *3–*5. We emphasized, however,

that “[w]hether [the] USFS ultimately completes the land exchange, builds an access road

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across USFS land, or takes some other alternative, it is not free to ‘do nothing at all’; it

must take some action to provide LMJV with access.” Id. at *4.

C. Right-of-Way Alternative

The USFS proceeded with the right-of-way alternative and prepared a

Supplemental Information Report (“SIR”) to determine whether it needed to prepare a

supplemental EIS. The SIR concluded that a supplemental EIS was “not warranted”

because “[any] changed conditions and new information would not present a significantly

different picture of the environmental effects.” Agencies App. Vol. III at 615. The USFS

also consulted with the FWS under the ESA concerning the right-of-way, given LMJV’s

request for coverage under a § 7 ITS and the expected private development which would

result from granting the right-of-way.

The FWS issued a new BiOp (“2018 BiOp”) concluding that the incidence of

Canada lynx killed “will increase by one lynx” due to the right-of-way and the

corresponding increase in traffic on Highway 160, but the right-of-way “is not likely to

result in jeopardy to the species.” Id. at 722–23. In comparison with the land exchange

proposal, the FWS noted that “[t]he effects of the two actions are similar in severity,

duration, and intensity from functional loss of 288–324 acres of Canada lynx habitat and

traffic related effects.” Id. at 693. However, as the FWS explained after reviewing

literature on the subject, higher traffic volumes resulting from the development of the

LMJV Parcel may reduce the take of lynx because frequent traffic creates a barrier for the

species. The FWS also considered three proposed growth models for the anticipated

LMJV development in reaching its conclusions. The FWS explained that its analysis

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changed from that of prior BiOps because it received updated traffic data from the

Colorado Department of Transportation and there had been intervening changes in the

surrounding habitat which had led to shifts in the Canada lynx population. The FWS

reached these conclusions without considering LMJV’s proposed conservation efforts.

The USFS issued a final ROD in 2019 (“2019 ROD”). The 2019 ROD granted

LMJV a right-of-way to construct an approximately 1,610-foot-long year-round access

road over approximately 3.7 acres of federal land, as well as a 530-foot extension of a

preexisting secondary road. The USFS explained that its choice to issue a right-of-way,

rather than engage in a land exchange without deed restrictions, “addresses the [district

court’s] concern that the land exchange alternative gives up existing regulatory authority,

while recognizing that [the USFS] cannot compel LMJV to accept any deed restrictions.”

Id. at 832.

D. Right-of-Way Litigation

The Conservation Groups subsequently filed this lawsuit in the District of

Colorado in May 2019 and brought fourteen counts challenging the USFS’s decision

under NEPA, ANILCA, USFS land exchange regulations, the APA, the Federal Records

Act, the Freedom of Information Act, the ESA, and the National Forest Management Act.

LMJV filed a motion to intervene, which the district court granted on March 31, 2020.

Upon review on the merits, the district court vacated the 2019 ROD and remanded

the matter to the USFS. The district court first held that the Conservation Groups have

Article III and prudential standing because they submitted declarations showing a

concrete and particularized injury that is fairly traceable to the 2019 ROD. The district

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court then reasoned that the 2017 district court decision was binding on this matter as law

of the case, stating that “[a]side from a new ROD and [BiOp], [the Agencies] rely on a

virtually identical administrative record to support the decisions in this case and in the

Land Exchange Lawsuit.” Agencies App. Vol. I at 176. The district court also held there

was no new evidence that would change the court’s analysis.

As to the NEPA claims, the district court noted its 2017 holding that the

environmental analysis of the EIS was faulty because it was limited to the indirect effects

of the proposal development, which in the court’s determination was contrary to law and

directly contradicted by the USFS’s own prior actions concerning LMJV’s acquisition

and ownership of the private inholding. The district court then explained that the

Agencies relied on the same “flawed” EIS in the 2019 ROD, and the reasons set forth in

the 2019 ROD were substantially the same as those set forth in the 2015 ROD. Id. at 178.

The district court also explained that any of the USFS’s contentions in the 2019 ROD that

it cannot regulate LMJV’s private land and development were arbitrary and capricious

because they ran contrary to the Scenic Easement, which grants the USFS certain

developmental controls.

With respect to the claims under the ESA, the district court concluded that the

USFS made the same error in the 2019 ROD that it did in the 2015 ROD by consulting

with the FWS regarding LMJV’s proposed development under § 7, which concerns the

impacts of federal agency action, rather than directing LMJV to consult with the FWS

under the more onerous § 10, in determining whether LMJV’s development plan would

result in a take of the Canada lynx. The district court concluded that, based on prior

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litigation and its analysis of legislative history, LMJV should not be covered under a § 7

ITS. Finally, the district court noted that the Agencies’ internal deliberations concerning

whether § 7 or § 10 applies, particularly statements alleging that § 7 was not the obvious

pathway for this action, further demonstrated the USFS’s improper reliance on that

section. The district court concluded that vacatur and remand was the appropriate

remedy.

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

We begin, as we must, by assessing our jurisdiction over this appeal.

“[J]urisdiction is a threshold question which an appellate court must resolve before

addressing the merits of the matter before it.” Timpanogos Tribe v. Conway, 286 F.3d

1195, 1201 (10th Cir. 2002). “Absent a specific statutory grant of jurisdiction over a

particular type of dispute, we exercise jurisdiction over final decisions of the federal

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district courts pursuant to 28 U.S.C. § 1291.” W. Energy All. v. Salazar, 709 F.3d 1040,

1047 (10th Cir. 2013).

Typically, we do not have jurisdiction over an APA action which a district court

has remanded to the agency for further proceedings. However, this rule is subject to

exception. The Agencies assert that this court has jurisdiction under the practical finality

rule, despite the district court’s vacatur and remand to the agency. They cite in support of

this position the importance and urgency of the issue, the fact that the deciding agency is

filing the appeal, and the application of our balancing test.3 We agree and exercise

jurisdiction over this appeal.4 We further hold that the Conservation Groups have

standing to pursue it.

3 The Conservation Groups make several arguments asserting that this court lacks jurisdiction over this matter. However, with minimal support, their argument primarily consists of challenging the appellants’ ability to appeal this matter on account of their alleged failure to adhere to the 2017 district court order. But they conflate the law of the case doctrine with appellate jurisdiction, as reflected in their citations to circuit precedent addressing the law of the case doctrine in support of their jurisdictional argument. The Conservation Groups also cite to past actions between LMJV and the USFS to support their jurisdictional argument, although those actions are not before this court and are not incorporated into either of the district court opinions referenced here. Their jurisdictional arguments are therefore unpersuasive. 4 LMJV asserts that this court has pendant appellate jurisdiction over its appeal “because both appeals arise from the same district court order and address the same underlying access decision,” and because their rights will be adjudicated by this court in conjunction with the Agencies’ appeal. LMJV Br. at 3. This is correct. Only the Agencies may undertake action granting LMJV access to their properties, and only the Agencies can independently obtain appellate jurisdiction in this matter under the practical finality exception to the administrative remand rule. See Zen Magnets, LLC v. Consumer Prod. Safety Comm’n, 968 F.3d 1156, 1166–67 (10th Cir. 2020) (“We may exercise that discretion [to exercise pendant appellate jurisdiction] when the

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1. Administrative Remand Rule

“The remand by a district court to an administrative agency for further

proceedings is ordinarily not appealable because it is not a final decision.” Bender v.

Clark, 744 F.2d 1424, 1426–27 (10th Cir. 1984); see also N.C. Fisheries Ass’n, Inc. v.

Gutierrez, 550 F.3d 16, 19 (D.C. Cir. 2008) (“It is black letter law that a district court’s

remand order is not normally ‘final’ for purposes of appeal under 28 U.S.C. § 1291.”).

“The purpose of the finality requirement is to avoid piecemeal review.” Bender, 744 F.2d

at 1426. The general principle that appellate courts do not address issues pending before

an agency is called the administrative remand rule. W. Energy All., 709 F.3d at 1047.

In determining whether the administrative remand rule applies, we must first

decide if a remand occurred, meaning “[we] must consider the nature of the agency

action as well as the nature of the district court’s order.” New Mexico ex rel. Richardson

v. Bureau of Land Mgmt., 565 F.3d 683, 697 (10th Cir. 2009). Normally, a remand

“occurs when an agency has acted in an adjudicative capacity,” meaning “[a] party to the

adjudication appeals the agency’s determination to a district court, and the district court

instructs the agency to conduct further proceedings.” Id. Here, the district court explicitly

remanded the action to the agency to conduct further proceedings, leaving us to decide

only whether the agency action was adjudicative in nature.

non-appealable and appealable decisions are inextricably intertwined, [meaning] the pendent claim is coterminous with, or subsumed in, the claim before the court on interlocutory appeal.” (internal quotation marks omitted)).

18 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 19

Much like the USFS’s 2015 ROD, which we held was adjudicative because it

impacted the rights of LMJV, the USFS’s 2019 ROD was adjudicative. See Rocky

Mountain Wild, 2018 WL 11225766, at *4. Agency action that “‘settles the rights of

specific parties,’ like permitting or ‘making a determination on a particular entity’s lease

application,’ is adjudicative.” Id. (quoting W. Energy All., 709 F.3d at 1047–48). Here,

the USFS made a determination on an application—the inholding access application—

and settled the rights of a specific party, LMJV. Furthermore, the proposed right-of-way

would connect a private plot of land to a public roadway, rather than, for instance,

provide public access to a broader section of USFS land. Accordingly, we conclude the

USFS’s approval of LMJV’s access application was adjudicative. See W. Energy All., 709

F.3d at 1047; contra Richardson, 565 F.3d at 697–98 (concluding that a Bureau of Land

Management (“BLM”) regulation that was broadly applicable was legislative in nature).

As the USFS’s 2019 ROD, and the 2018 BiOp through incorporation, were both

adjudicative and remanded to the agency, the administrative remand rule applies.

2. Practical Finality Rule

Because the district court’s order is subject to the administrative remand rule, the

next step is to determine whether an exception to the rule applies. “We have recognized

three exceptions to the administrative remand rule: (1) the collateral order doctrine,

(2) the practical finality rule, and (3) the pendent appellate jurisdiction doctrine.” C.W. by

& through B.W. v. Denver Cnty. Sch. Dist. No. 1, 994 F.3d 1215, 1221 (10th Cir. 2021).

The Agencies assert that this court has jurisdiction over the district court’s order under

the practical finality rule. We agree.

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“A district court’s remand is practically final when it is urgent that an issue be

decided because it is important, serious, and unsettled.” Zen Magnets, LLC v. Consumer

Prod. Safety Comm’n, 968 F.3d 1156, 1164–65 (10th Cir. 2020). “In practice, we have

applied the practical finality rule to review important legal questions which a remand

may make effectively unreviewable.” C.W., 994 F.3d at 1221 (internal quotation marks

omitted). “To decide whether a decision is practically final, we ask whether the danger of

injustice by delaying appellate review outweighs the inconvenience and costs of

piecemeal review.” Zen Magnets, 968 F.3d at 1165 (internal quotation marks omitted).

“Practical finality is particularly appropriate when an agency may be foreclosed

from appellate review,” id., because “once [an] agency completes its remand

proceedings, the government, unlike a private litigant, typically has no avenue for

obtaining judicial review of its own administrative decisions,” C.W., 994 F.3d at 1221

(internal quotation marks omitted). This stems from the fact that “[a]fter a district court

remands to an agency for further proceedings, the agency must conform its proceedings

to the remand order.” Id. “Consequently, if a district court remands an issue to an

administrative agency and essentially instructs the agency to rule in favor of the plaintiff,

the agency may well be foreclosed from again appealing the district court’s determination

at any later stage of the proceeding.” Rekstad v. First Bank Sys., Inc., 238 F.3d 1259,

1262 (10th Cir. 2001) (internal quotation marks omitted); see, e.g., Cherokee Nation v.

Bernhardt, 936 F.3d 1142, 1152 (10th Cir. 2019) (concluding that a remand order was

appealable under the practical finality rule when it prevented the Bureau of Indian Affairs

from placing a parcel of land into trust for the benefit of a band of Cherokee Indians

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without the consent of the Cherokee Nation, thereby blocking any further agency action

without the Cherokee Nation’s consent); Ausmus v. Perdue, 908 F.3d 1248, 1252 (10th

Cir. 2018) (applying the practical finality rule when an agency was directed to implement

a particular outcome rather than recommence a proceeding).

“[W]e employ a two-pronged test for applying the practical finality rule: the issue

must be ‘important’ and it must be ‘urgent.’” W. Energy All., 709 F.3d at 1049–50. “If the

test is met, we then follow a balancing approach[,]” with the “critical inquiry” being

“whether the danger of injustice by delaying appellate review outweighs the

inconvenience and costs of piecemeal review.” Id. at 1050 (internal quotation marks

omitted). “As a general matter, if additional proceedings in a district court are

contemplated after remand to an agency [for example, when counts of a complaint remain

pending before the district court,] we think the better rule is for the government to wait

until a final judgment is entered.” Miami Tribe of Okla. v. United States, 656 F.3d 1129,

1140 (10th Cir. 2011).

Here, both the importance prong and urgency prong are readily met because the

Agencies would be required to comply with the district court’s analysis of important

issues under NEPA and the ESA without review by this court. Cf. W. Energy All., 709

F.3d at 1050 (“[W]e review orders to remand a matter to an administrative agency when

it is necessary to ensure that we can review important legal questions which a remand

may make effectively unreviewable, because administrative agencies may be barred from

seeking [judicial] review of their own administrative decisions.” (quotation marks

omitted)). And if the Agencies were to make the changes to the analysis directed by the

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district court, they would likely have no opportunity to return to the district court to

contest those required changes. While undertaking the analysis prescribed by the district

court could lead to litigation by LMJV against the Agencies, which might resurrect these

issues, we have previously held that speculative future litigation does not preclude an

agency from seeking review of its own actions under the practical finality doctrine.

Bender, 744 F.2d at 1428.

We also conclude “the danger of injustice by delaying appellate review outweighs

the inconvenience and costs of piecemeal review.” See Miami Tribe of Okla., 656 F.3d

at 1140 (quotation marks omitted). First, there are no other aspects of this litigation

pending before the district court. See id. Second, the district court’s actions have

precluded the Agencies from providing LMJV access to the Parcel, contrary to this

court’s order in 2018 stating, “Whether USFS ultimately completes the land exchange,

builds an access road across USFS land, or takes some other alternative, it is not free

to ‘do nothing at all’; it must take some action to provide LMJV with access." Rocky

Mountain Wild, 2018 WL 11225766, at *4. Where LMJV and its predecessor have been

attempting to obtain access to the Parcel since 1987, this is an urgent and important issue.

See Trout Unlimited v. U.S. Dep’t of Agric., 441 F.3d 1214, 1219 (10th Cir. 2006)

(jurisdiction contrary to the administrative remand rule may be appropriate when “delay

in review . . . would likely result in further disputes and litigation, confusion and danger

of injustice” (quotation marks omitted)).

The Conservation Groups point to the Agencies’ failure to appeal the district

court’s 2017 order and their alleged rebuke of the district court’s reasoning as precluding

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their ability to appeal the district court’s 2022 order. But as the Agencies correctly

explain in reply, this response does not engage with the practical finality exception to the

administrative remand rule. Instead, the Conservation Groups conflate the law of the case

doctrine with the scope of our subject matter jurisdiction. The Conservation Groups also

argue that allowing this appeal to proceed would “improperly alter the finality of the

[government’s] decision [not to approve the Agencies desire to appeal the 2017 district

court decision] that obligated the Agencies to conform with [that] order on remand.”

Response Br. at 74. However, this argument concerns the merits of the appeal, rather than

our jurisdiction. This is because responding to this contention necessarily involves review

of whether the Agencies undertook a new NEPA review and whether they acted

arbitrarily and capriciously in approving a different alternative in the 2019 ROD. For

purposes of assessing our subject matter jurisdiction, we consider only “whether the

danger of injustice by delaying appellate review outweighs the inconvenience and costs

of piecemeal review.” Zen Magnets, 968 F.3d at 1165 (internal quotation marks omitted).

We conclude that the danger of injustice in delaying appellate review here

outweighs the costs of piecemeal review. Accordingly, we have jurisdiction over this

appeal under the practical finality rule.

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3. Standing

While neither the Agencies nor LMJV contest standing, the Conservation Groups

reassert their standing arguments before this court.5 “Standing . . . raises jurisdictional

questions and we are required to consider the issue sua sponte to ensure that there is an

Article III case or controversy before us.” Rector v. City & Cnty. of Denver, 348 F.3d

935, 942 (10th Cir. 2003) (internal quotation marks omitted). All four Conservation

Groups have standing to proceed with this litigation.

Article III of the United States Constitution limits federal jurisdiction to cases and

controversies. U.S. Const. art. III. The Supreme Court has interpreted this to mean parties

must have standing to bring cases in federal courts. To establish standing, a plaintiff must

show “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to

the challenged action of the defendant; and (3) it is likely, as opposed to merely

5 The Conservation Groups also assert in a footnote that LMJV and the Agencies do not argue that they have standing to bring this appeal. But “[t]he party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The Conservation Groups brought this suit from the outset. Accordingly, they bear the burden to establish their standing to pursue the action. In any event, because the Agencies are aggrieved by the ruling of the district court, they have standing to bring this appeal. Miami Tribe of Okla. v. United States, 656 F.3d 1129, 1137 (10th Cir. 2011). And because LMJV does not seek any additional relief beyond that sought by the Agencies, it has standing to intervene in this appeal. See Town of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017) (“For all relief sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a plaintiff, a coplaintiff, or an intervenor of right. Thus, at the least, an intervenor of right must demonstrate Article III standing when it seeks additional relief beyond that which the plaintiff requests.”). 24 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 25

speculative, that the injury will be redressed by a favorable decision.” Friends of the

Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). An organization has

standing if it can show at least one of its members meets the requirements for Article III

standing. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009).

When it comes to environmental litigation, if the alleged “harm in fact affects the

recreational or even the mere esthetic interests of the plaintiff, that will suffice.” Summers

v. Earth Island Inst., 555 U.S. 488, 494 (2009). “In the context of a NEPA claim, the

harm itself need not be immediate, as the federal project complained of may not affect the

concrete interest for several years.” Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256,

1265 (10th Cir. 2002) (internal quotation marks omitted). Furthermore, “the desire to use

or observe an animal species, even for purely esthetic purposes, is undeniably a

cognizable interest for the purpose of standing.” S. Utah Wilderness All. v. Off. of Surface

Mining Reclamation & Enf’t, 620 F.3d 1227, 1233 (10th Cir. 2010) (quoting Lujan, 504

U.S. at 562–63).

Several affidavits before us demonstrate standing for three of the Conservation

Groups. For one, Jimbo Buickerood, a member and employee of the San Juan Citizens

Alliance, discusses his frequent trips to Wolf Creek Pass for recreation and how the

LMJV development would impact his recreational, spiritual, and esthetic enjoyment of

the area. Christine Canaly, the Director of the San Luis Valley Ecosystem Council,

discusses how the organization’s members rely on groundwater, which will be impacted

by the development, and also attests that members recreate in the surrounding National

25 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 26

Forest. Tehri Parker, the Executive Director of RMW, and Paige Singer, a Conservation

Biologist and Geographic Information Systems Specialist for RMW, frequently recreate

in the area surrounding the site of the proposed development, and Ms. Singer personally

and academically observes the Canada lynx and is therefore concerned about how the

project will impact them. There is no dispute that the right-of-way would change traffic

patterns surrounding the Wolf Creek Ski Area and would also lead to new development

activities, changing the esthetic nature of the Rio Grande National Forest and affecting

the Canada lynx population in the area. Each affidavit shows that at least one member of

the aforenamed organizations has recreational and esthetic interests which would be

affected if the right-of-way grant proceeds. These affidavits support standing for the San

Juan Citizens Alliance, the San Luis Valley Ecosystem Council, and RMW.

There are no affidavits supporting Wilderness Workshop’s standing. So long as it

does not seek any further relief than the other Conservation Groups who have

independently established standing, however, it may remain a party to the litigation. See

Town of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017) (“For all relief

sought, there must be a litigant with standing, whether that litigant joins the lawsuit as a

plaintiff, a coplaintiff, or an intervenor of right.” (emphasis added)). Wilderness

Workshop does not seek any relief in addition to that sought by the other Conservation

Groups. Accordingly, the Conservation Groups all have standing to litigate this appeal.

B. Law of the Case Doctrine

We next review the propriety of the district court’s reliance on the law of the case

doctrine in remanding the 2019 ROD to the USFS. The district court reasoned the law of

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the case doctrine controls the outcome here because the 2019 ROD relied on the same

“flawed” EIS as the 2015 ROD, and the ESA analysis underlying the 2018 BiOp is

similar to the ESA analysis underlying the 2013 BiOp. But the district court overlooked

the fact that the 2019 ROD considered a new alternative, the underlying reasoning of

which transcends the scope of the district court’s holdings in 2017. Accordingly, the law

of the case doctrine is inapplicable to this matter.6

“The law of the case doctrine provides, when a court rules on an issue of law, the

ruling should continue to govern the same issues in subsequent stages in the same case.”

Vehicle Mkt. Rsch., Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016)

(internal quotation marks omitted). “This principle applies to all issues previously

decided, either explicitly or by necessary implication.” Id. (internal quotation marks

omitted); see also Entek GRB, LLC v. Stull Ranches, LLC, 840 F.3d 1239, 1241 (10th

6 This court would not be bound by the district court’s application of the law of the case doctrine in any event. See, e.g., Woodruff v. Herrera, 623 F.3d 1103, 1113 (10th Cir. 2010) (“[T]his court is not bound by the law of the case set in district court.”); In re Woods, 173 F.3d 770, 776 (10th Cir. 1999) (“So long as a matter is properly preserved in [a] lower court, the fact that the lower court can properly refuse reconsideration as a matter of law of the case of course does not prevent subsequent review . . . on appeal.” (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478, at 801 (1981)) (alteration in original)). Because the parties’ briefing and district court’s reasoning suggest there is confusion over the applicability of the law of the case doctrine in complex administrative appeals with multiple remand orders, we address this issue to clarify the doctrine’s application. Additionally, the Conservation Groups seek a remand if the panel concludes that the district court improperly applied the law of the case doctrine. This is unnecessary, however, because we may review an APA challenge de novo, and the parties have argued the merits of the 2019 ROD on appeal. Olenhouse, 42 F.3d at 1580. Like this court did in Olenhouse, “[h]aving already obtained and reviewed the administrative record in this case, we choose the latter course.” Id. 27 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 28

Cir. 2016) (“Law of the case doctrine [precludes] the relitigation of issues either

expressly or implicitly resolved in prior proceedings in the same court.”). The law of the

case doctrine also “require[s] the administrative agency, on remand from a court, to

conform its further proceedings in the case to the principles set forth in the judicial

decision, unless there is a compelling reason to depart.” Grigsby v. Barnhart, 294 F.3d

1215, 1218 (10th Cir. 2002) (quoting Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998)).

“Whether a prior decision constitutes law of the case is a legal issue that we review de

novo.” Stewart v. Beach, 701 F.3d 1322, 1329 (10th Cir. 2012). However, “the decision

whether to apply [the] law of the case doctrine remains a matter of judicial discretion.”

Entek GRB, 840 F.3d at 1242.

We first hold that the Agencies approved a significantly different action

alternative here in the form of a right-of-way, rather than a land exchange. To be sure,

they relied on the same EIS that was challenged before the district court in 2017, but they

did so after preparing an SIR, which determined that a new EIS was not warranted

because any “changed conditions and new information would not present a significantly

different picture of the environmental effects.” Agencies App. Vol. III at 615. Further,

the Agencies included in the 2019 ROD a new BiOp that noted changes in the

relevant data since it issued its land exchange BiOp in 2013.

The Supreme Court has explained that district courts are permitted to remand

agency actions to either provide “a fuller explanation of the agency’s reasoning at the

time of the agency action” or to take new agency action. Biden v. Texas, 597 U.S. 785,

808 (2022) (quoting Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891,

28 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 29

1907 (2020)). For instance, in Biden, when the Secretary of Homeland Security was

seeking to end the Migrant Protection Protocols program, the Secretary issued a new

memorandum on remand that officially superseded the memorandum a district court had

vacated and that provided several new reasons, absent from the original memorandum,

justifying termination of the program and squarely addressing issues that the district court

believed were insufficiently addressed. Id. The Court reasoned that this action was

properly considered to be a new agency action. Id. Similarly, here, the USFS explained

that after the district court vacated the 2015 ROD, “the United States decided to pursue a

new decision and dismissed its appeal.” Agencies App. Vol. III at 829.

The district court acknowledged that the USFS undertook a new agency action but

took issue with its continued reliance on the same EIS. The district court’s analysis

overlooks that “[i]t is black-letter law that an agency that takes superseding action on

remand is entitled to ‘reexamine[] the problem, recast its rationale and reach[] the same

result.’” Biden, 597 U.S. at 813 (second and third alterations in original) (quoting Sec. &

Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947)). The USFS abandoned the

land exchange proposal and instead considered a right-of-way easement to secure access

to the LMJV Parcel. In doing so, the USFS reexamined the problem in light of the district

court’s 2017 decision and reached a different conclusion about the preferred alternative.

Although it relied on a similar agency record, the USFS completed an SIR that concluded

a new EIS was not required, obtained a new BiOp examining the impacts of the right-of-

way alternative on the endangered lynx, and entertained additional public comment.

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Furthermore, the district court’s analysis overlooks the narrow scope of the district

court’s review of the EIS in its 2017 order. There, the district court held there was no

basis for the USFS to conclude in its EIS and 2015 ROD “that the Forest Service had no

power or jurisdiction to limit or regulate development on the federal lands being

conveyed to LMJV in the present exchange.” Rocky Mountain Wild, 2017 WL 6350384,

at *11. The district court concluded such authority could be found in the USFS’s Scenic

Easement on the Parcel because it gave the USFS “actual power to control development.”

Id. But the district court reached that conclusion based on its reading of the land

exchange regulations as requiring agencies to reserve certain rights to ensure the public

interest is protected. Id. Critically, a core failing of the land exchange according to the

district court was its failure to extend the Scenic Easement to the land to be conveyed

under the 2015 ROD. Id. The district court highlighted that “neither the [EIS] nor the

ROD provide the reasoning or public interest analysis for failing to consider conditioning

the land exchange on extension of the Scenic Easement to the federal lands being

conveyed, or taking other restrictive steps.” Id. These statements taken together show that

the district court’s 2017 decision and underlying reasoning regarding the EIS’s and the

2015 ROD’s NEPA analysis primarily concern the unique challenges presented by a land

exchange, rather than a right-of-way.

The district court’s application of the law of the case doctrine is further

undermined because the analysis in the 2018 BiOp used in the 2019 ROD is

distinguishable from the analysis in the 2013 BiOp incorporated into the 2015 ROD. The

2018 BiOp relies on different metrics than the 2013 BiOp and, unlike the 2013 BiOp, did

30 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 31

not predicate its conclusion on LMJV’s conservation proposals. Critically, the district

court in 2017 rejected the USFS’s analysis of the ESA impacts because it was based only

on the proposed conservation measures in the 2013 BiOp. Id. at *13–*16. The ESA

analysis challenged in this lawsuit is different than that advanced in the 2017

proceedings. Indeed, the 2018 BiOp expressly excludes LMJV’s proposed conservation

measures from its analysis. Here, the criticism of the USFS’s treatment of the ESA is

focused on the propriety of the Agencies and LMJV relying upon § 7 of the ESA rather

than § 10. And while the district court in 2017 opined on the propriety of extending a § 7

ITS to cover LMJV’s proposed development, it explicitly stated that “[i]t is not necessary

to decide whether the ‘take’ authorization is legal.” Id. at *14–*15. “[D]icta is not subject

to the law of the case doctrine.” Bay v. Anadarko E&P Onshore LLC, 73 F.4th 1207,

1216 (10th Cir. 2023) (quotation marks omitted).

Accordingly, the district court erred in its application of the law of the case

doctrine to this matter.

C. APA Standard of Review

We review a district court’s resolution of APA claims de novo, applying the same

deferential standard toward the agency’s decisions that the district court applies.

Biodiversity Conserv. All. v. Jiron, 762 F.3d 1036, 1059 (10th Cir. 2014); Utah Env’t

Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). We will not overturn an agency’s

decision “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with [the] law.’” Utah Env’t Cong., 443 F.3d at 739 (quoting 5 U.S.C.

§ 706(2)(A)). Additionally, an agency’s violation of the APA “does not require reversal

31 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 32

unless the appellant demonstrates prejudice resulting from the error.” WildEarth

Guardians v. Nat’l Park Serv., 703 F.3d 1178, 1183 (10th Cir. 2013). “We may set aside

agency action only for substantial procedural or substantive reasons.” Silverton

Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 779 (10th Cir. 2006) (internal

quotation marks omitted).

“[T]he burden is on the petitioner to demonstrate that the action is arbitrary and

capricious.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011)

(quotation marks omitted). To avoid a finding that an agency action is arbitrary and

capricious, “the agency cannot (1) rely on factors deemed irrelevant by Congress; (2) fail

to consider important aspects of [the] problem; (3) present an explanation that is either

implausible or contrary to the evidence or (4) reach a decision that is not supported by

substantial evidence in the [administrative] record.” Am. Petroleum Inst. v. U.S. Dep’t of

Interior, 81 F.4th 1048, 1058 (10th Cir. 2023) (internal quotation marks omitted)

(alterations in original). “We do not ‘substitute [our] judgment for that of the agency,’

and we do not ‘supply a reasoned basis for the agency’s action that the agency itself has

not given.’” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793–94 (10th Cir. 2010)

(alteration in original) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

Nevertheless, “we also accord agency action a presumption of validity.” Wyoming,

661 F.3d at 1227 (internal quotation marks omitted). “If the agency’s ‘path may

reasonably be discerned’ from its explanation, we will not disturb the action even when

the explanation is not entirely clear.” WildEarth Guardians v. U.S. E.P.A., 770 F.3d 919,

32 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 33

927 (10th Cir. 2014) (quoting Alaska Dep’t of Env’t Conservation v. E.P.A., 540 U.S.

461, 497 (2004)).

D. ANILCA

In our merits review of this matter, we first address the Conservation Groups’

challenge to the USFS’s understanding of ANILCA, 16 U.S.C. § 3210(a), as requiring it

to grant access to the LMJV Parcel. The Conservation Groups argue that the plain

language of the statutory framework does not extend ANILCA § 3210(a)’s coverage to

land outside of Alaska.7 Although the Conservation Groups raise cogent arguments and

the parties extensively discuss this issue in their briefing before this court, our precedent

7 The Conservation Groups further argue that the Agencies are improperly granting rights-of-way to utilities for LMJV’s development. They cite to 36 C.F.R. § 251.111, which explains that under the regulatory subpart governing “Access to Non-Federal Lands,” Part 251, Subpart D, “[a]ccess means the ability of landowners to have ingress and egress to their lands. It does not include rights-of-way for power lines or other utilities.” This regulatory subpart “set[s] forth the procedures by which landowners may apply for access across National Forest System lands and the terms and conditions that govern any special use or other authorization that is issued by the [USFS] to permit such access.” 36 C.F.R. § 241.110(a). It also contains three sections outlining the requirements for applications, the instruments of authorization, and the criteria, terms, and conditions for access. See 36 C.F.R. § 251.112–114. None of these three regulatory sections contains language prohibiting a grant of access that includes utilities. Instead, the use of “access” in these sections suggests that there is no obligation for the grant of a right-of-way to include utility easements. See, e.g., 36 C.F.R. § 251.114 (g) (listing factors the USFS must consider in authorizing access under ANILCA, which focus on means of ingress and egress). But there is no language in ANILCA limiting the extent of rights which may be conveyed in a right- of-way. We therefore see no basis to conclude that extending other rights-of-way, including for utilities serving a future development on the Parcel, is impermissible under the statute.

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reads § 3210(a) as extending to National Forest inholdings outside of Alaska. Therefore,

we are bound to mandate that the USFS grant LMJV access to the Parcel.

“Our primary task in construing statutes is to determine congressional intent, using

traditional tools of statutory interpretation.” S. Furniture Leasing, Inc. v. YRC, Inc., 989

F.3d 1141, 1146 (10th Cir. 2021) (quotation marks omitted). “When interpreting a

statute, we begin by examining the statute’s plain language, and if the statutory language

is clear, our analysis ordinarily ends.” Seale v. Peacock, 32 F.4th 1011, 1024 (10th Cir.

2022) (internal quotation marks omitted). “[Tools of statutory interpretation] include

examination of the statute’s text, structure, purpose, history, and relationship to other

statutes.” Am. Fed’n of Gov’t Emps., Loc. 1592 v. Fed. Lab. Rels. Auth., 836 F.3d 1291,

1295 (10th Cir. 2016). When a term is undefined in a statute, we must look to its ordinary

meaning. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012). “Dictionary

definitions are useful touchstones to determine the ‘ordinary meaning’ of an undefined

statutory term.” In re Mallo, 774 F.3d 1313, 1321 (10th Cir. 2014).

Section 3210(a) of ANILCA states in relevant part:

Reasonable use and enjoyment of land within boundaries of National Forest System

Notwithstanding any other provision of law, and subject to such terms and conditions as the Secretary of Agriculture may prescribe, the Secretary shall provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment thereof[.] . . . .

The Conservation Groups argue that the plain language of the statute contains no

express reference to lands outside of Alaska. To the contrary, LMJV and the Agencies

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contend the statute contains no language expressly limiting the section’s applicability to

Alaska. Furthermore, the Agencies are correct that the statute does not include a

definition, let alone an Alaska-specific definition, for “the National Forest System” or

“National Forest System lands.” 16 U.S.C. § 3102. Turning to the dictionary, the

adjective “national” is defined as “of a nation, common to a whole nation,” thereby

suggesting a broader reach than a single state. National, Oxford American Dictionary

(Oxford University Press 1980). Had the statute specifically referenced National Forest

System lands in Alaska, we would be bound to adhere to this geographic modifier. But no

such language exists in ANILCA.

The Conservation Groups counter, however, that § 3210(a) of ANILCA is

expressly limited to National Forest Service Land in Alaska because it is part of a broader

statutory framework titled the Alaska National Interest Lands Conservation Act. They

also assert that the Supreme Court has limited applicability of other sections of ANILCA

to Alaska, and that the Congressional Statement of Purpose makes repeated mention of

preserving land, water, and the economic and subsistence needs of Alaska. 16

U.S.C. § 3101. For example, part (b) of § 3210 is constrained to “nonfederally owned

land surrounded by public lands,” id. § 3210(b), which are by definition “situated in

Alaska,” id. § 3102(3). But part (a) is not so constrained, lending some support for an

interpretation applying § 3210(a) broadly to the entire “National Forest System” as

defined in § 1609(a).

To be sure, the parties have raised competing interpretations concerning the reach

of ANILCA. We need not resolve this issue in the first instance, however, because we are

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bound by circuit precedent. In 1994, we held in United States v. Jenks that “[§] 3210(a)

of ANILCA guarantees to inholders a threshold ‘right of access to their lands subject to

reasonable regulation [under FLPMA] by . . . the Secretary of Agriculture in the case of

national forest [lands].’” 22 F.3d 1513, 1516 (10th Cir. 1994) (second and third

alterations in original) (quoting Adams v. United States, 3 F.3d 1254, 1258–59 (9th Cir.

1993)). Relying upon post-enactment legislative history discussed in a 1980 House of

Representatives report and adopting the view of the Ninth Circuit, we concluded that

“[§] 3210(a) of ANILCA applies to all National Forest System lands.” Id. at 1516 n.3.

There, we held ANILCA guaranteed access to the defendant’s inholdings located in

Apache National Forest in Catron County, New Mexico. Id. at 1516. Thus, we have

binding precedent interpreting ANILCA’s reach as nationwide.

The Conservation Groups attempt to overcome this hurdle by pointing to the

Supreme Court’s disfavor of post-enactment legislative history. But “[w]e cannot

overrule the judgment of another panel of this court. We are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary decision by the

Supreme Court.” United States v. Manzanares, 956 F.3d 1220, 1225 (10th Cir. 2020)

(quotation marks omitted) (alteration in original).

It is true the Supreme Court disfavors reliance on post-enactment legislative

history, Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011), and has asserted a

preference for plain language interpretation when possible, Bostock v. Clayton Cnty.,

Georgia, 590 U.S. 644, 673–75 (2020). But the Supreme Court has never explicitly

forbidden reliance upon post-enactment legislative history. Nor has the Supreme Court

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held that the applicability of § 3210(a) is limited to Alaska. While the Court has

explained, looking at ANILCA as a whole, “the Act contemplates the possibility that all

the land within the boundaries of conservation system units in Alaska may be treated

differently from federally managed preservation areas across the country,” Sturgeon v.

Frost, 577 U.S. 424, 440–41 (2016), this does not squarely address the plain language of

§ 3210(a) or hold it is so limited. As a result, it is insufficient to override our past

precedent.8 See Manzanares, 956 F.3d at 1225. We therefore affirm the USFS’s reliance

on ANILCA in granting access to LMJV.

E. NEPA

We next address the Conservation Groups’ challenge to the 2019 ROD under

NEPA. They claim that the 2019 ROD improperly fails to classify LMJV’s development

proposal as part of a federal action, while also alternatively arguing that the 2019 ROD

erred by not considering the development proposal as a direct effect of the federal action.

They also assert that the USFS improperly declined to work with cooperating agencies in

8 The Conservation Groups also argue that the canon favoring a sovereign grantor when there is ambiguity in a land grant supports their reading of ANILCA. However, the cases they cite involve disputes between the government and the grantee over the scope of a land grant already conveyed. Watt v. W. Nuclear, Inc., 462 U.S. 36, 37–38 (1983); Great N. R. Co. v. United States, 315 U.S. 262, 270 (1942). Here, there is no dispute over the scope of the proposed right-of-way, and furthermore, the right-of-way conveyance being challenged has yet to occur.

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preparing the underlying EIS. Upon review of these arguments and of the agency record,

we conclude there are no violations of NEPA warranting vacatur.9

1. NEPA Overview

NEPA is a federal environmental law that requires agencies to consider the

environmental impacts of their actions as part of the decision-making process and to

inform the public about these impacts. Citizens’ Comm. to Save Our Canyons v. U.S.

Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). “NEPA does not create a cause of

action, so NEPA challenges are brought under the APA.” Dine Citizens Against Ruining

Our Env't v. Haaland, 59 F.4th 1016, 1029 (10th Cir. 2023). NEPA does not require any

particular outcome, and it does not require agencies to give special weight to

environmental concerns. Citizens’ Comm. to Save Our Canyons, 297 F.3d at 1022. “[I]t

requires only that the agency take a ‘hard look’ at the environmental consequences before

taking a major action.” Id. (quotation marks omitted). To that end, NEPA requires

9 The Conservation Groups also generally allege the USFS relied upon NEPA only to inform federal decisionmakers instead of also pursuing the other “twin aim[]” of NEPA—facilitating public involvement. Response Br. at 83 (quoting High Country Conservation Advocs. v. U.S. Forest Serv., 951 F.3d 1217, 1223 (10th Cir. 2020)). But they make no specific allegations as to how public involvement was not facilitated. As the EIS and 2019 ROD indicate, the USFS provided several opportunities for public notice and comment and held several public hearings regarding the project. Specifically, the USFS opened a public comment period on the draft 2019 ROD, prior to issuing the final 2019 ROD. And the USFS provided detailed responses to the comments it received in an extensive Response to Comments document in November 2018, prior to issuing the 2019 ROD. In any event, the regulations state that “[a]n agency may request comments on a final environmental impact statement before the decision is finally made.” 40 CFR § 1503.1(b) (emphasis added). There is no requirement that an agency open a ROD to public comment once the underlying EIS is final. See id. § 1503.1(a).

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agencies to prepare an EIS for “proposals for . . . major Federal actions significantly

affecting the quality of the human environment.” 42 U.S.C. § 4332(C); see also 40 C.F.R.

§§ 1502.1–1502.24 (1978)10 (relating to the EIS requirement).

In taking a hard look at the environmental consequences of a proposed action, the

agencies must consider the direct, indirect, and cumulative environmental impacts of the

action. 40 C.F.R. §§ 1502.16 (environmental consequences), 1508.7 (cumulative impact),

1508.8 (direct and indirect effects). When “considering whether the agency took a ‘hard

look,’ we consider only the agency’s reasoning at the time of decisionmaking, excluding

post-hoc rationalization concocted by counsel in briefs or argument.” Richardson, 565

F.3d at 704. We may also consider non-NEPA documents that have been incorporated by

reference into the NEPA documents. See 40 C.F.R. § 1502.21 (requiring agencies to

“incorporate material into an [EIS] by reference” to “cut down on bulk”). However, on a

hard look review under NEPA, we do not “decide the propriety of competing

methodologies”; we instead “determine simply whether the challenged method had a

rational basis and took into consideration the relevant factors.” Silverton Snowmobile

Club v. U.S. Forest Serv., 433 F.3d 772, 782 (10th Cir. 2006) (quotation marks omitted).

“Deficiencies in an EIS that are mere ‘flyspecks’ and do not defeat NEPA’s goals of

informed decisionmaking and informed public comment will not lead to reversal.”

Richardson, 565 F.3d at 704.

10 The agency decision at issue was released prior to the 2020 amendments, so we cite to the prior versions of the regulations. 39 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 40

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. Furthermore, the plans would cause “induced changes in the pattern of land

11 The Conservation Groups’ position that the LMJV development is a direct effect and therefore a federal action appears in tension with their argument that the FWS acted improperly when it issued an ITS under § 7 of the ESA that encompassed both the right-of-way and the proposed development on the LMJV Parcel. 40 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 41

use, population density or growth rate, and related effects on air and water and other

natural systems, including ecosystems,” which the regulations describe as characteristic

of indirect effects. Id. § 1508.8(b). The Conservation Groups argue, however, that the

development will result from construction of the right-of-way, and therefore it will be a

direct effect of the action. But the Conservation Groups fail to demonstrate that the

development would occur at the “same time,” especially when development plans have

yet to be finalized. See id. § 1508.8(a) (emphasis added). Accordingly, the Agencies

properly treated the LMJV development as an indirect effect of the right-of-way.12

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

12 Additionally, LMJV correctly identified the requirement that the Conservation Groups show prejudice flowing from the error, and the Conservation Groups failed to respond by identifying any record support for their contention. Irrespective of the merits of their contention, the Conservation Groups have failed to demonstrate prejudicial error stemming from the USFS’s categorization of LMJV’s proposed development in its review of the right-of-way in the EIS and 2019 ROD. See 5 U.S.C. 706 (in reviewing a challenge to an agency action under the APA, “due account shall be taken of the rule of prejudicial error); see, e.g., Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 659 (2007) (holding that a stray erroneous statement in the Federal Register “which could have had no effect on the underlying agency action being challenged” is not “the type of error that requires a remand”). 41 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 42

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. In the executive

summary of the EIS, the USFS explained:

[I]n order to adequately disclose the range of indirect effects associated with private land development that could occur as a result of Forest Service approval of either a land exchange or a road access corridor across [USFS] lands, a range of development concepts, including Low, Moderate and Maximum Density, has been evaluated for each Action Alternative.

LMJV App. Vol. IX at 2319. The USFS then extensively analyzed the environmental

impacts of low, moderate, and maximum density development concepts for the LMJV

Parcel. That analysis explicitly considered the impacts of each type of development on

landscape disturbances, air quality, vegetation, and water flow, among other factors, and

evaluated how the ultimate size of the development would interact with each of the

federal actions proposed. The Conservation Groups identify no support from the record,

and we have located none, for the proposition that categorizing the effects of the LMJV

development as indirect, even if erroneous, had any harmful impact on the USFS’s NEPA

review.

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The Conservation Groups also make a vague assertion that the Agencies did not

properly consider the full range of alternatives available due to the alleged failure to

properly categorize LMJV’s development proposals. To support this argument, the

Conservation Groups quote Richardson for the proposition that “[w]ithout substantive,

comparative environmental impact information regarding other possible courses of

action, the ability of an EIS to inform agency deliberation and facilitate public

involvement would be greatly degraded.” Response Br. at 89–90 (quoting Richardson,

565 F.3d at 708). However, Richardson concerns a failure by the BLM to consider

reasonable alternatives to a land leasing proposal for oil drilling that were raised

repeatedly during the public comment period and formal protest period, and which were

directly cited and discussed by the petitioner on appeal. Richardson, 565 F.3d at 708–09.

The Conservation Groups cite no specific alternatives raised before the USFS but not

considered here. And the Agencies expressly took a hard look at the impact on the

environment of each of three possible development proposals for the LMJV Parcel.

Accordingly, Richardson is unhelpful to the Conservation Groups’ arguments.

In sum, we see no basis in the record for concluding that the USFS

mischaracterized the effects of the LMJV development, let alone that any alleged

miscategorization undermined the purpose of NEPA.

3. Cooperating Agencies

The Conservation Groups also challenge the USFS’s decision not to proceed with

any cooperating agencies in developing the EIS. Under our precedent, this challenge is

unreviewable.

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NEPA’s implementing regulations provide that, “[u]pon request of the lead

agency, any other Federal agency which has jurisdiction by law shall be a cooperating

agency.” 40 C.F.R. § 1501.6. “In addition any other Federal agency which has special

expertise with respect to any environmental issue, which should be addressed in the

statement may be a cooperating agency upon request of the lead agency.” Id.

We have previously held that, when the USFS denies a request by a state to

participate as a cooperating agency in the NEPA process under 40 C.F.R. § 1501.6, “the

applicable regulations provide no standard for a court to apply in reviewing the [USFS’s]

denial of such a request, and are likewise devoid of any standards or directives that would

guide the [USFS] in granting or denying such a request[, meaning] there is simply no law

to apply.” Wyoming, 661 F.3d at 1242. Thus, while “[a]ll agency actions are presumed

reviewable under the APA,” under 5 U.S.C. § 701(a)(2), review is precluded “if the

statute is drawn so that a court would have no meaningful standard against which to

judge the agency’s exercise of discretion.” Id. Although the Wyoming holding related to

the participation of a state, rather than another federal agency, id. at 1241–42, we relied

on the same regulation and its applicable language in Wyoming as the Conservation

Groups place at issue here, and we can ascertain no basis for deviating from our prior

holding. As a result, we lack authority to review the USFS’s decision not to confer with

cooperating agencies in developing the EIS.

4. Major Federal Action

Finally, the Conservation Groups argue that the EIS arbitrarily and capriciously

failed to categorize LMJV’s development as part of a major federal action, despite

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the district court’s prior questioning of the USFS on this issue and despite the alleged

power the USFS retained when it exchanged land with LMJV’s predecessor in

1987.13 But the Conservation Groups fail to show how this alleged

mischaracterization of the development in the EIS impacted the 2019 ROD. And in

any event, the USFS properly categorized LMJV’s proposed development as a

nonfederal action that does not rise to the level of a major federal action.

Under NEPA, “[w]e have defined major federal action as actions by the federal

government . . . and nonfederal actions with effects that may be major and which are

potentially subject to Federal control and responsibility.” Ross v. Fed. Highway

Admin., 162 F.3d 1046, 1051 (10th Cir. 1998) (internal quotation marks omitted). “In

effect, major federal action means that the federal government has actual power to

control the project.” Id. (internal quotation marks omitted). We previously explained

that nonfederal activities amount to “major federal action” in instances including “the

filing of documents with a federal agency, when the filing is a necessary but

insufficient step to gain eligibility to apply for federal funds for a nonfederal project,

and an agency’s approval of an Indian tribe’s lease of its lands to nonfederal lessees.”

Sierra Club v. Hodel, 848 F.2d 1068, 1089–90 (10th Cir. 1988), overruled on other

grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir.

1992). Conversely, we have held that a duty to ensure a local government does not

13 Again, if the LMJV Parcel development were a major federal action, there is little doubt it could be included in an ITS issued under § 7 of the ESA. See infra Section II.F.2 (discussion of § 7 and § 10 of the ESA). LMJV’s arguments remain internally inconsistent on these points. 45 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 46

exceed the bounds of a BLM right-of-way does not convert actions taken within the

right-of-way into a federal action, unless there is, for example, a mandatory

regulatory duty placed upon the agency to ensure the nonfederal actions do not

produce environmental harms the agency is affirmatively responsible for preventing.

Id. at 1090–91. We further suggested in Hodel that when federal control over an

aspect of a nonfederal action is discretionary, it does not rise to the level of a major

federal action. Id. at 1090.

When the USFS conveyed the ski village property in exchange for property

formerly held by LMJV’s predecessor, it retained a Scenic Easement over the LMJV

Parcel that places esthetic limits and restrictions on the uses of the property. That

Scenic Easement also requires the supervisor of the Rio Grande National Forest to

approve any proposed development on the property. If the supervisor and LMJV

cannot agree on the development plan after negotiation, the Scenic Easement

anticipates they will engage in binding arbitration to resolve the dispute. The

supervisor also retains discretion to waive enforcement of any portion of the Scenic

Easement.

The Conservation Groups allege that the Agencies erred by construing the

definition of major federal action too narrowly, pointing to our decision in Ross. But

the Conservation Groups read Ross too broadly. In Ross, we held that a road project

is a major federal action when contemplated and funded by the federal government,

even after federal funding is withdrawn at an advanced stage of the project. Ross, 162

F.3d at 1051–53. Here, we are faced with a proposed development on a privately

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owned parcel of land encumbered by a Scenic Easement. Importantly, no public

funding has or will be provided for LMJV’s use in development of the Parcel. Thus,

while the Rio Grande National Forest retains the right to object to LMJV’s

development plans, the government’s involvement here is not analogous to that in

Ross.

As the Agencies accurately note, the supervisor’s authority over the

development of the Parcel is further limited by the scope of the oversight power: the

supervisor may only provide, within a thirty-day period of receiving a development

proposal, “all reasonable objections which the Grantee has to such plans on the

grounds of non-compliance with the terms of this [Scenic Easement].” Agencies App.

Vol. I at 238. To the extent LMJV disagrees, the binding nature of arbitration limits

the supervisor’s power to dictate the parameters of the development. And the

supervisor may waive any of the Scenic Easement restrictions. This framework

suggests that the supervisor’s approval of LMJV’s development plans is more

discretionary than mandatory, thereby disqualifying the approval process from

treatment as a major federal action. See Hodel, 848 F.2d at 1090.

Nevertheless, it is the challengers’ burden to identify how an error has harmed

them. Here, the Conservation Groups neglect to explain how the failure to categorize

LMJV’s development as part of a major federal action caused them harm. That omission

proves detrimental to their argument, particularly where the EIS extensively reviewed—

for three levels of potential density—the development proposal’s impacts on the

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environment.14 See, e.g., Eagle Cnty., Colo. v. Surface Transp. Bd., 82 F.4th 1152, 1176

(D.C. Cir. 2023) (“Even if the [agency] erroneously characterized the impacts related to

increased oil production as cumulative impacts, Petitioners identify no way in which this

decision materially affected the Board’s analysis under NEPA.”); Richardson, 565 F.3d

at 704; WildEarth Guardians, 703 F.3d at 1183 (requiring a show of prejudice from an

alleged NEPA violation). Thus, although the Agencies did not consider the LMJV’s

future development of the ski village as a major federal action, it considered the impact of

that development as part of its assessment of the environmental effects of the right-of-

way. The Conservation Groups offer no explanation as to how the analysis would have

been different if the Agencies had instead characterized the LMJV development itself as

a major federal action.

In sum, the USFS did not violate NEPA in preparing the EIS or the 2019 ROD.

We accordingly affirm the 2019 ROD under NEPA.

14 The Conservation Groups also allege that the USFS intentionally did not correct the deficiencies outlined by the 2017 district court order, citing the USFS’s statement in its subsequent SIR that it “does not intend to correct deficiencies identified by the district court.” Response Br. at 53 (quoting Agencies App. Vol. III at 607). In context, this quote merely identifies the limited purpose of the SIR. See Agencies App. Vol. III at 607 (“This SIR does not constitute a National Environmental Policy Act (NEPA) decision nor does it intend to fulfill the requirements for a revised or supplemental NEPA analysis. This SIR does not intend to correct deficiencies identified by the district court.”). Furthermore, according to agency regulations, SIRs are meant to address whether there are changes to environmental circumstances or whether new proposed agency actions may change prior environmental impact analyses. See 40 C.F.R. § 1502.9(d). The district court did not focus on environmental circumstances in its decision to set aside the 2015 ROD. Thus, the Conservation Groups have provided us with no rationale for setting aside the analysis in the SIR. 48 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 49

F. ESA

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

The ESA, enacted in 1973, provides protection to endangered and threatened

species. 16 U.S.C. § 1531(b); Endangered Species Act of 1973, Pub. L. No. 93–205,

87 Stat. 884. To advance this goal, the ESA requires the FWS to list endangered and

threatened species and to designate critical habitat for those species. 16 U.S.C.

§ 1533(a). Under § 9 of the ESA, a “take” of any species listed as endangered is

prohibited. Id. § 1538(a)(1)(B). “Take” is defined as “to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect.” Id. § 1532(19).

Initially, the ESA lacked a method by which incidental takes of endangered

species could be authorized. Congress addressed this issue in the Endangered Species

Act Amendments of 1982. Pub. L. No. 97-304, §§ 4, 6, 96 Stat. 1411, 1147–20,

1422–25. Once a species is listed and a critical habitat is designated, federal agencies

are required under § 7 of the ESA to,

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in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical.

16 U.S.C. § 1536(a)(2) (emphasis added). “During consultation, the FWS ‘evaluates

the effects of the proposed action on the survival of [the] species and any potential

destruction or adverse modification of critical habitat’ and, ‘based on the best

scientific and commercial data available,’ formulates a [BiOp].” Rio Grande Silvery

Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1105 (10th Cir. 2010) (first

alteration in original) (quoting Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,

524 F.3d 917, 924 (9th Cir. 2008)).

A BiOp “is a written statement determining whether the proposed action ‘is

likely to jeopardize the continued existence of listed species.’” Id. (quoting 50 C.F.R.

§ 402.14(g)(4)). “If the [BiOp] concludes that jeopardy is not likely and that there

will not be adverse modification of critical habitat . . . the consulting agency can

issue an [ITS] . . . .” Id. at 1105–06 (quoting Nat’l Wildlife Fed’n, 524 F.3d at 924)

(internal quotation marks omitted). Pursuant to the ESA Amendments of 1982, “[a]n

[ITS] ‘constitutes a permit authorizing the action agency to take the endangered or

threatened species so long as it respects the [FWS’s] terms and conditions.’” Id. at

1106 (third alteration in original) (quoting Bennett v. Spear, 520 U.S. 154, 170

(1997)); see also Endangered Species Act Amendments of 1982 § 4. Commentators

have called the ITS “the incidental take permit of [§] 7.” Donald L. Soderberg & Paul

E. Larsen, Triggering Section 7: Federal Land Sales and “Incidental Take” Permits,

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6 J. Land Use & Env’t L. 169, 193 (1991). Among the statutory factors the FWS

must consider in issuing an ITS is whether “the taking of an endangered species or a

threatened species incidental to the agency action will not violate [§ 7(a)(2)].” 16

U.S.C. § 1536(b)(4)(B). “The FWS must issue an [ITS] if the BiOp concludes no

jeopardy to listed species or adverse modification of critical habitat will result from

the proposed action, but the action is likely to result in incidental takings.”15 Oregon

Nat. Res. Council v. Allen, 476 F.3d 1031, 1036 (9th Cir. 2007).

In 1982, Congress also amended the ESA to add § 10, a provision by which the

state or private parties can request an incidental take permit (“ITP”) for non-federal

activities. Endangered Species Act Amendments of 1982, § 6; H.R. Rep. No. 97-567,

at 31 (1982); see also WildEarth Guardians v. U.S. Fish & Wildlife Serv., 622 F.

Supp. 2d 1155 (D. Utah 2009) (affirming § 10 ITPs issued to a Utah municipality and

Indian nation). Section 10 allows the FWS to grant an ITP to those parties carrying

out an otherwise lawful activity which may result in the take of an endangered

species within the United States, so long as the take is incidental to the action, rather

than the purpose of the action. 16 U.S.C. § 1539(a)(1)(B). Applicants for a § 10 ITP

15 There is no challenge here to the FWS’s baseline conclusion that

[a]fter reviewing the current status of lynx, the environmental baseline for the action area, the direct and indirect effects of the proposed action, and the cumulative effects, it is the Service’s biological opinion that the proposed action is not likely to jeopardize the continued existence of lynx within the contiguous United States distinct population segment.

Agencies App. Vol. III at 720. There is also no challenge here to the FWS’s previous determination that no critical habitat areas for lynx exist in Colorado. 51 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 52

face requirements in addition to those imposed on applicants for a § 7 ITS. For

example, a § 10 ITP requires applicants to submit a detailed conservation plan, and

mandates that the FWS open the permit application and related conservation plan to

public comment before issuing the permit, with the permit subject to revocation if the

applicant does not comply with its terms and conditions. 16 U.S.C. § 1539(a)(2). No

such requirements are present in § 7. See generally id. § 1536.

Nothing in § 10 indicates any intent to limit the reach of § 7. Rather, § 10

provides a method for obtaining an ITP on projects lacking any federal nexus. We

now consider which section of the ESA governs the issuance of a take permit here.

2. Propriety of § 7 Analysis

The Conservation Groups challenge the Agencies’ decision to include LMJV’s

proposed development within the scope of its § 7 review for the right-of-way. Under the

plain language of the ESA and relevant authorities, we conclude the Agencies committed

no legal error by extending the ITS in the 2018 BiOp to cover LMJV’s proposed

development.

The FWS declared in its 2018 BiOp that, although the USFS does not have

jurisdiction over the LMJV development, the FWS would extend the ITS for the

Canada lynx to cover the LMJV development, conditioned upon LMJV following

“the Reasonable and Prudent Measures and Terms and Conditions [therein].”

Agencies App. Vol. III at 722. The Conservation Groups question the propriety of the

Agencies’ inclusion of LMJV’s development within the scope of a § 7 consultation,

rather than requiring LMJV to undergo a separate § 10 consultation.

52 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 53

“Our primary task in construing statutes is to determine congressional intent, using

traditional tools of statutory interpretation.” S. Furniture Leasing, Inc., 989 F.3d at 1146

(quotation marks omitted). “When interpreting a statute, we begin by examining the

statute’s plain language, and if the statutory language is clear, our analysis ordinarily

ends.” Seale, 32 F.4th at 1024 (internal quotation marks omitted). “[Tools of statutory

interpretation] include examination of the statute’s text, structure, purpose, history, and

relationship to other statutes.” Am. Fed’n of Gov’t Emps., 836 F.3d at 1295.

Recall that under § 7 of the ESA, “[e]ach Federal agency shall, in consultation

with and with the assistance of the Secretary, insure that any action authorized, funded, or

carried out by such agency . . . is not likely to jeopardize the continued existence of any

endangered species or threatened species . . . .” 16 U.S.C. § 1536(a)(2). If following this

review,

the Secretary concludes that . . . the taking of an endangered species or a threatened species incidental to the agency action will not violate [subsection (a)(2)] . . . the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that—(i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, . . . and (iv) sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both.

Id. § 1536(b)(4) (emphasis added).

53 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 54

The Conservation Groups assert that, by disavowing federal power over

development of the LMJV Parcel,16 the Agencies have removed all grounds for

expanding a § 7 ITS to a non-federally controlled property. But § 7 not only provides

that where any action “authorized” by the agency is “likely to jeopardize the continued

existence of any endangered species or threatened species,” the Secretary shall suggest

reasonable and prudent alternatives that “can be taken by the Federal agency or applicant

in implementing the agency action.” 16 U.S.C. § 1536(a)(2), (b)(3)(A) (emphasis added).

Section 7 also instructs the FWS to consider in issuing an ITS whether “the taking of an

endangered species or a threatened species incidental to the agency action will not

violate [§ 7(a)(2)].” 16 U.S.C. § 1536(b)(4)(B) (emphasis added). Unlike NEPA, the

ESA does not define the term “incidental.” As the Agencies illustrate, however,

activities on an inholding accessed by a federally conveyed right-of-way naturally fit

within the dictionary definition of “incidental.” The Oxford American Dictionary

defined “incidental” as “occurring as a minor accompaniment,” “liable to occur in

consequence of or in connection with something,” or “casual, occurring by chance.”

Incidental, Oxford American Dictionary (Oxford University Press 1980). Use of an

inholding will flow from a grant of access to the inholding, and beyond the limitations

naturally created by the right-of-way itself, the grantor may be unable to anticipate or

control all uses of the inholding. The application of § 7 to incidental takes therefore

16 The Agencies concede that the Rio Grande National Forest retains the right to approve LMJV’s development plans. Agencies Br. at 37–39. Thus, the Agencies have not disavowed all federal power over the development. 54 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 55

suggests congressional intent to permit broad application of the ITS regime, thereby

allowing FWS to impose conservation measures controlling the impacts on an

endangered species caused by development of a property made accessible by the right-of-

way.

The Fifth Circuit reached the same conclusion regarding the broad reach of a

§ 7 analysis in a decision instructive to the present dispute. In National Wildlife

Federation v. Coleman, 529 F.2d 359 (5th Cir. 1976), conservation groups sought to

enjoin construction of a section of interstate highway due to its impact on the

endangered Sandhill Crane. The district court dismissed the action and the

conservation groups appealed. Id. at 361–62. The Fifth Circuit reversed, holding that

the § 7 analysis under the ESA was deficient for its failure to incorporate the

commercial and residential development that would likely result from the

construction of the proposed highway interchange. Id. at 373–74. The circuit court

explained: “The fact that the private development surrounding the highway and the

[proposed highway interchange] does not result from direct federal action does not

lessen the [agency’s] duty under [§] 7.” Id. at 374. Instead, the court held that the

agency was required under § 7 to consider the indirect effects of the federal action

and noted that “[p]rincipal among the indirect effects of the highway on the crane is

the residential and commercial development that can be expected to result from the

construction of the highway.” Id. at 373.

Although Coleman was decided before adoption of § 10 of the ESA or the

creation of the § 7 ITS regime, its interpretation of the reach of § 7 has been cited

55 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 56

favorably by this court after the 1982 amendments. Specifically, in Riverside

Irrigation District v. Andrews, we explained that the Army Corps of Engineers:

is required, under both the Clean Water Act and the Endangered Species Act, to consider the environmental impact of the discharge that it is authorizing. To require it to ignore the indirect effects that result from its actions would be to require it to wear blinders that Congress has not chosen to impose. The fact that the reduction in water does not result “from direct federal action does not lessen the [agency’s] duty under § 7 [of the Endangered Species Act].”

758 F.2d 508, 512 (10th Cir. 1985) (second alteration in original; emphasis added)

(quoting Coleman, 529 F.2d at 374).

Thus, the plain language of § 7 and our own precedent supports consideration

of indirect effects of federal action, including future development of lands rendered

accessible by the agency action.17 Here, the Agencies have consistently treated the

future development of the LMJV Parcel as an indirect effect of the agency action

under both NEPA and the ESA. As such, the FWS was required to consider the

impact of the development of the LMJV Parcel on the lynx as part of its § 7 analysis.

17 The District of Colorado similarly concluded that a § 7 analysis under the ESA requires consideration of the indirect effects of a federal right-of-way. In Sierra Club v. United States, 255 F. Supp. 2d 1177, 1187–89 (D. Colo. 2002), the district court held that the Department of Energy improperly failed to address the impacts of a mining project made possible by the right-of-way on an endangered species living in the affected property, although the species was not listed as endangered until after the easement was granted. The court noted that, as it found under its NEPA analysis of the same agency action, “the mine and the Easement are ‘interrelated,’ or ‘connected’ actions because the road has no purpose other than to provide access to the mine.” Id. at 1188.

56 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 57

Additionally, without § 7, the Agencies would have no ability to impose

conservation measures on LMJV’s development of the Parcel. There is no affirmative

requirement that LMJV seek a § 10 permit. See Defs. of Wildlife v. Bernal, 204 F.3d

920, 927 (9th Cir. 2000). And as the 2018 BiOp explains and supports with scientific

literature, the take of lynx due to habitat modifications is nearly impossible to

calculate or to detect. The 2018 BiOp notes that lynx will avoid the development

activities, but that the development activities will nevertheless result in habitat loss.

If LMJV is not placed under an affirmative duty to undertake conservation measures

as part of granting the right-of-way, LMJV may ultimately take lynx during

development without consequence given the difficulty of determining whether there

has been any take of lynx.18 By including the development as an indirect effect of the

federal action of granting the right-of-way and correspondingly covering LMJV’s

development in the ITS, the Agencies can impose conservation measures on LMJV

that are designed to protect the lynx during and following development. See, e.g.,

Agencies App Vol. III at 724 (requiring LMJV to conduct a “worker orientation

concerning lynx conservation”); id. (providing on-site employee housing to minimize

traffic impacts); id. (creating a lynx awareness program for property owners and

guests to inform them of lynx movements in the area and their crossings of Highway

160).

18 We acknowledge that the ESA provides civil and criminal penalties for unauthorized take. See 16 U.S.C. § 1540. But the difficulty here, is documenting whether any take of lynx has occurred, thereby making future penalties uncertain. 57 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 58

Critically, the conservation measures are not static. Should the Agencies

conclude at any point going forward that the take of lynx resulting from the right-of-

way easement and the LMJV development exceeds that permitted under the ITS, the

authorized actions harm the lynx in a way not previously considered, or new

information reveals effects on the lynx not already considered in the 2018 BiOp, the

FWS is required to reinitiate § 7 consultation. See 50 C.F.R. § 402.16(a). Thus, § 7

allows the Agencies to impose conservation measures from the outset and to modify

the conservation measures in response to changing circumstances or information.

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

19 Although we reach our conclusion independent of the FWS’s internal guidance, we acknowledge that it is consistent with our conclusion regarding the plain meaning of ESA § 7. In the 2018 BiOp, the FWS explained that it relied on a 2003 Interagency Agreement titled “Application of the [ESA] to proposals for access to non-federal lands across lands administered by the [BLM] and [USFS]” (the “Interagency Agreement”). Agencies App. Vol. III at 697. The Interagency Agreement states in relevant part:

An applicant has a right to receive an [ITS], with reasonable and prudent measures, if take is anticipated from the access itself. The applicant also may desire to include reasonable and prudent measures in the [ITS] for take resulting from activities on non-federal land. If the applicant requests an [ITS] for take resulting from activities on non-federal lands, the activities on non-federal land may be analyzed in the [§] 7 consultation for the access application. If the applicant chooses to be covered through the [§] 7 consultation, then the [ITS] can include reasonable and prudent measures related to activities on non-federal land. If the applicant abides

58 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 59

3. Other Conclusions of the 2018 BiOp and ITS

The Conservation Groups also challenge several of the conclusions reached in

the 2018 BiOp and their application to the accompanying ITS as arbitrary and

capricious. Specifically, they allege that the FWS did not rely on the best available

science in reaching its take conclusions and used improper surrogates for determining

take projections.20 The Conservation Groups do not sufficiently substantiate their

arguments and therefore do not meet their burden to challenge the 2018 BiOp and the

accompanying ITS.21

First, the Conservation Groups allege that the 2018 BiOp’s take projection is

arbitrary and capricious because it fails to “account for take resulting from a wide

by these measures, the applicant has ESA coverage for any associated take.

Application of the Endangered Species Act to Proposals for Access to Non-Federal Lands Across Lands Administered by the Bureau of Land Management and the Forest Service, at 3 (Jan. 2003), available at https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5345337.pdf. 20 The Conservation Groups also raise arguments concerning the propriety of the 2013 BiOp. But they point to nothing in the record suggesting the Agencies relied on the 2013 BiOp in approving the right-of-way alternative in the 2019 ROD. The Conservation Groups also attempt to incorporate by reference their briefing before the district court. Our precedent is clear, however, that “parties appearing before this court cannot satisfy Rule 28 by incorporating their claims by reference to either appendices or records from the court below.” United States v. Patterson, 713 F.3d 1237, 1250 (10th Cir. 2013). We therefore do not consider any argument raised in this manner. 21 Much like they do regarding the USFS’s NEPA analysis, the Conservation Groups challenge the FWS’s categorization of LMJV’s development proposal as indirect effects, rather than direct effects, of the right-of-way under the ESA’s

59 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 60

range of harms emanating from village construction, operations, water depletions,

population influx, and other traffic related impacts.” Response Br. at 98. According

to the Conservation Groups, additional taking of lynx will result from significant

habitat modification or degradation in the development area, and the FWS arbitrarily

and capriciously failed to factor these impacts into its take analysis. Our review of

the 2018 BiOp does not support the Conservation Groups’ argument.

The Agencies concluded that the development of the ski village is the reason

for the right-of-way and thus, development of the Parcel is an obvious, indirect effect

of the agency action. See Agencies App. Vol. III at 714 (“[D]evelopment of the

private lands [the Parcel] is reasonably certain to occur because the Applicant

specifically requested access across the [Rio Grande National Forest] for

development purposes.”). Accordingly, the 2018 BiOP analyzed the indirect effects

of the right-of-way by reviewing LMJV’s development proposals and then assuming

that any of the three possible levels of density for the LMJV development would

render the entire Parcel “non-functional for lynx.” Id. at 715. The 2018 BiOP

explains:

governing regulations. But the cited regulation does not distinguish the result of categorizing an action as direct versus indirect, grouping direct and indirect effects into the definition of “[e]ffects of the action.” 50 C.F.R. § 402.02. Furthermore, this argument undermines the Conservation Groups’ assertion that § 7 cannot apply here, given clear precedential direction for the FWS to consider direct effects of federal actions under § 7. See Riverside Irrigation District v. Andrews, 758 F.2d 508, 512 (10th Cir. 1985). Again, the Conservative Groups’ arguments are in tension with one another.

60 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 61

The Village constitutes a base area development, and lynx are likely to avoid this base area development, rather than pass through it. . . . The Applicant anticipates a development timeframe of 30 years (i.e. full buildout completed in year 2051). We anticipate a steady reduction in lynx use of the private lands caused by removal of forested habitat for construction of infrastructure, facilities, and housing, and as human presence and activity increases.

Id.

Then, after reviewing pertinent scientific literature on the subject, the 2018

BiOp concludes “it is not possible to quantify the number of lynx that become

susceptible to habitat loss and degradation,” whereas “[q]uantifying the anticipated

loss of lynx that may be injured or killed from a vehicle collision is relatively straight

forward.” Id. at 719. Thus, the Agencies did factor the impact of the LMJV

development activities on the lynx into the ESA analysis and provided a reasonable

basis for why the ITS focused on how to reduce traffic volume on Highway 160 and

the right-of-way easement. Besides, while the Conservation Groups disagree with the

2018 BiOp’s conclusions about the impact on lynx, they offer no scientific support or

any other explanation for their contrary opinion, and thus fail to meet their burden to

show how this action is arbitrary and capricious. See Wyoming, 661 F.3d at 1227; Am.

Petroleum Inst., 81 F.4th at 1058. Because the FWS concluded that the development

itself would not result in a calculable take, we find no basis to conclude that the FWS

acted arbitrarily and capriciously in not including requirements specific to the

development itself in issuing the accompanying ITS.

Next, the Conservation Groups target the FWS’s rationale for reducing the

take projection of Canada lynx in the 2018 BiOp compared to the 2013 BiOp. The

61 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 62

2018 BiOp concluded that granting the right-of-way to the LMJV parcel would result

in the taking of one lynx every twenty years through hit-by-vehicle mortality. The

2018 BiOp acknowledged that this is a change from the 2013 BiOp’s projection of

the taking of one lynx every six years. The Conservation Groups argue the 2018

BiOp is not based on the best available science because the BiOp notes that

“[d]iscovery or detection of lynx injury or mortality attributed to lynx-vehicle

collision is very unlikely if the animal wanders away from the highway before it

dies,” but allegedly does not incorporate this reasoning into its conclusion. Response

Br. at 99. But the FWS explains that because of the difficulty in detecting the

mortality associated with lynx-vehicle collisions and with functional habitat loss, it

relies upon traffic volume estimates “as a detectible and measurable surrogate to

quantify take.” Agencies App. Vol. III at 723. The FWS also relies on several studies

indicating that, as the traffic volume on a roadway increases to approximately 5,000

vehicles per day, the risk to lynx increases, but the risk then decreases once the

roadway surpasses 5,000 vehicles per day, because the higher traffic volume acts as a

barrier and animals cease attempting to cross the roadway. The FWS’s rationale for

using this surrogate measure is well explained and does not overlook evidence on the

record or fail to consider important aspects of this issue. The Conservation Groups

therefore have not met their burden to show that the lynx-vehicle collision calculation

is arbitrary and capricious. See Wyoming, 661 F.3d at 1227; Am. Petroleum Inst., 81

F.4th at 1058.

62 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 63

Finally, the Conservation Groups claim that the reduction in the take

projection of Canada lynx from one lynx every six years in the 2013 BiOp to one

lynx every twenty years in the 2018 BiOp does not reflect the “best available

science.” Response Br. at 112. But the FWS thoroughly explains that this change in

metric is the result of changes in the surrounding habitat due to forestry-related

changes and updates in projected traffic based on new data from the state. The

Conservation Groups present no other scientific evidence for their contention that the

2018 BiOp is inaccurate. Thus, they have failed to undermine the presumption of

validity afforded to the FWS’s action, or to establish that the FWS’s analysis is

arbitrary and capricious.

In sum, the FWS’s statements are not contrary to the evidence before it,

unsupported by substantial evidence, without consideration of important aspects of

the problem, or contrary to congressional direction. See Am. Petroleum Inst., 81 F.4th

at 1058. We therefore affirm the FWS’s analysis in the 2018 BiOp.22

III. CONCLUSION

We VACATE the district court’s order and AFFIRM the 2018 BiOp and 2019 ROD.

22 The Conservation Groups also criticize the 2018 BiOp for not considering the future development plans of the neighboring ski resort, calling it an “interrelated action.” Response Br. at 108–10. But aside from assumptions that LMJV’s development will trigger the ski resort’s development plans, the Conservation Groups provide no assurance that such development will occur or what form it may take. Under these circumstances, the Conservation Groups have failed to present a valid challenge to the 2019 ROD. 63 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 64

APPENDIX: GLOSSARY OF ACRONYMS

ANILCA Alaska National Interest Lands Conservation Act

APA Administrative Procedure Act

BiOp Biological Opinion

BLM Bureau of Land Management

EIS Environmental Impact Statement

ESA Endangered Species Act

FWS U.S. Fish and Wildlife Service

ITP Incidental Take Permit

ITS Incidental Take Statement

LMJV Leavell-McCombs Joint Venture

NEPA National Environmental Policy Act

RMW Rocky Mountain Wild

ROD Record of Decision

SIR Supplemental Information Report

USFS U.S. Forest Service

64 Appellate Case: 22-1438 Document: 010111034959 Date Filed: 04/19/2024 Page: 65

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.