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National Parks Conservation Association v. United States Forest Service

United States District Court, District of Columbia

January 22, 2016

National Parks Conservation Association, Plaintiff,
United States Forest Service, et al., Defendants, and Elkhorn Minerals LLC, Intervenor.


AMIT P. MEHTA, District Judge.


This case concerns gravel mining on 24.6 acres of land located in Billings County, North Dakota. On December 14, 2015, Intervenor Elkhorn Minerals LLC received final approval from Defendant United States Forest Service to begin mining operations on a five-acre parcel of that land. The approved operations started the very next day and are ongoing. Plaintiff National Parks Conservation Association has moved this court for a preliminary injunction that, if granted, would halt mining operations immediately.

The 24.6 acre tract has a storied history. It was once part of Theodore Roosevelt's expansive Elkhorn Ranch, which the former president purchased in 1884. Today, it is adjacent to the Elkhorn Ranch Unit of Theodore Roosevelt National Park, where President Roosevelt's ranch house once stood. Motivated by the area's historical significance, in 2007, the United States Forest Service, with the assistance of private funds, acquired the 24.6 acres as part of a 5, 200 acre purchase of land surrounding the Elkhorn Ranch Unit. The Forest Service's purchase, however, was limited only to the land's surface rights. The land's sub-surface rights remained under the control of various private parties.

Elkhorn Minerals holds sub-surface rights in the 24.6 acre parcel. In 2010, its owners took initial steps to exercise those rights. That began a nearly six-year process-involving extensive negotiations with the Forest Service, the preparation of an Environmental Assessment pursuant to the National Environmental Policy Act, and the issuance of a Decision Notice and Finding of No Significant Impact-that culminated in the start of mining operations on December 15, 2015. Two days later, Plaintiff filed a Motion for Preliminary Injunction, alleging that the Forest Service's approval of mining operations violated the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedure Act.

Injunctive relief is an extraordinary remedy. To receive it, a moving party must show that, absent such relief, it will suffer irreparable harm. It also must show that the balance of equities and the public interest favor a preliminary injunction. Upon consideration of the parties' filings, the Administrative Record, and the parties' representations at oral argument, the court finds that Plaintiff has failed to make those required showings. The court therefore denies Plaintiff's Motion for a Preliminary Injunction.

This Memorandum Opinion does not address Plaintiff's claims on the merits. The court, however, will address those arguments on an expedited basis. The Forest Service and Elkhorn Minerals have represented that mining operations on the first five-acre parcel are expected to continue through mid-March 2016. To enable the court to reach a final decision on the merits before then, the parties will be required to complete merits briefing on an expedited schedule. An Order setting forth a briefing schedule accompanies this Memorandum Opinion.


A. Factual Background

1. Purchase of the Elkhorn Ranchlands

In 2007, Defendant United States Forest Service ("Forest Service") and "a group of more than 100 private individuals and organizations from around the United States" purchased the Elkhorn Ranchlands from a private landholder for 4.8 million dollars. Pl.'s Mem. in Supp. of Mot. for Prelim. Inj., ECF No. 31-1 [hereinafter Pl.'s Mot.], at 4; see also Defs.' Opp'n to Mot. for Prelim. Inj., ECF No. 35 [hereinafter Defs.' Opp'n], at 6. The approximately 5, 200-acre parcel lies within an area called the Dakota Prairie Grasslands and is under the domain of the Forest Service's Medora District Ranger. See Defs.' Opp'n at 6. The parcel "surround[s] the Elkhorn Ranch Unit of the [Theodore Roosevelt] National Park, " Pl.'s Mot. at 4, which is one of three "main units of the Park, " Intervenor's Mem. in Opp'n to Mot. for Prelim. Inj., ECF No. 36 [hereinafter Int.'s Opp'n], Decl. of David C. Fredley, ECF No. 36-3 [hereinafter Fredley Decl.], ¶ 9.

The Elkhorn Ranch Unit includes the site of Theodore Roosevelt's former home. See Pl.'s Mot. at 4. The historical significance of that site motivated the purchase of the Elkhorn Ranchlands. See FS-002296 ("Acquisition of this parcel will preserve the integrity and historic character of the area around the Theodore Roosevelt Elkhorn Ranch[.]"); see also Pl.'s Mot. at 4; Defs.' Opp'n at 6. It also motivated the 2012 designation of portions of the Elkhorn Ranchlands, along with the Elkhorn Ranch Unit and other historically significant lands, as the "Theodore Roosevelt's Elkhorn Ranch and Greater Elkhorn Ranchlands Historic District" (the "Elkhorn Ranchlands NHD"). Pl.'s Mot., Ex. A, Environmental Assessment: Elkhorn Gravel Pit [hereinafter EA], at 29. The 24.6 acres that Elkhorn Minerals intends to mine (the "Gravel Pit") lie within both the Elkhorn Ranchlands and the Elkhorn Ranchlands NHD, approximately 0.8 miles from the Elkhorn Ranch Unit. EA at 31-32, 35, 48, 55-56.

The Forest Service's 2007 purchase of the Elkhorn Ranchlands was subject to all valid, existing mineral rights. See FS-003443-4 ("Reserving [u]nto the Grantor [a]ll metals, ores and minerals of any nature whatsoever in or upon the [Elkhorn Ranchlands] and including... gravel that may be owned together with the right to enter upon said lands for the purpose of [mining operations] and to occupy and make use of so much of the surface of said land as may be reasonably necessary[.]"); see also EA at 7 (quoting FS-003443-4); Defs.' Opp'n, Second Decl. of Shannon Boehm, ECF No. 35-1 [hereinafter Sec. Boehm Decl.], ¶ 3 ("All transaction documents made clear that surface and subsurface minerals were not included in the acquisition of Elkhorn Ranchlands."). In other words, while the Forest Service acquired the surface rights to the Elkhorn Ranchlands, the tract's sub-surface rights remained in private hands. Indeed, the Elkhorn Ranchlands has "approximately forty different third party surface mineral and/or subsurface mineral owners, " whose rights "were not available for purchase by the government" in 2007. EA at 6. Peggy Braunberger, one of Elkhorn Minerals' owners, id. at 9, purchased "26.86% [of the] mineral ownership from [a] third party in 2009, " id. at 6.

2. Development of the Gravel Pit and Compliance with NEPA

i. Initial steps

On February 9, 2010, Braunberger submitted to the Medora District Ranger the "initial Operating Plan to mine and develop the" Gravel Pit. Id. at 4.[1] This Operating Plan, however, was "too generic and did not address all resource, surface use, and operation concerns." Id. On September 1, 2011, after "approximately eighteen months of negotiations" with the Forest Service, Braunberger submitted her final Operating Plan. Id. at 4, 19; see also Defs.' Opp'n at 8. The Forest Service, through the Medora District Ranger, then issued a "Public Scoping Letter" to "one hundred contacts, including county commissioners, state, and federal agencies, tribal governments, environmental groups, private interested individuals, and the press, " Defs.' Opp'n at 8, soliciting comments on the Operating Plan, see FS-000625-27. It received 71 comments in response. See FS-000628-740; see also Defs.' Opp'n at 8.

ii. Preparation of the Environmental Assessment and Issuance of the Decision Notice and Finding of No Significant Impact

The National Environmental Policy Act ("NEPA") requires federal agencies to issue an exhaustive, in-depth analysis document referred to as an "Environmental Impact Statement" ("EIS") in connection with "proposals for... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). NEPA, however, permits agencies as a first step to prepare an Environmental Assessment ("EA")-a comprehensive but less-detailed analysis of a proposed project's environmental impact-to determine whether an EIS is necessary. See 40 C.F.R. §§ 1501.3-4. If, based on a completed EA, an agency determines that a proposal will not significantly affect the quality of the environment, it may issue a Decision Notice and Finding of No Significant Impact ("DN/FONSI") instead of proceeding with an EIS. Id. § 1501.4(e)(1). A DN/FONSI includes the EA or a summary of it and "briefly present[s] the reasons why an action... will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared." Id. § 1508.13.

As relevant to this case, the public-facing NEPA process began in May 2012, approximately eight months after Braunberger had submitted the Gravel Pit's final Operating Plan. On May 11, 2012, the Forest Service issued a second Public Scoping Letter, this time soliciting comments on a draft EA it had prepared for the Gravel Pit. See FS-000958-59; FS-000081-151. The Forest Service received 54 comments on its draft EA. See FS-000974-1086; see also Defs.' Opp'n at 9. Instead of modifying the draft based on these comments, the Forest Service entered into an agreement with Braunberger and Roger Lothspeich-a current co-owner of Elkhorn Minerals to whom Braunberger had granted Power of Attorney, see EA at 20-"to put processing of the Operating Plan on hold to search for possible exchange properties and to explore alternatives to development of the [Gravel Pit], " Defs.' Opp'n at 9; see also FS-003914-15.

This "Agreement in Principal" was in effect from July 18, 2012, to August 2, 2013, at which point Braunberger and Lothspeich withdrew. See EA at 20-21; Defs.' Opp'n at 9. In a letter to the Forest Service, counsel for Braunberger and Lothspeich explained that his clients "remain open to considering alternative resolutions, " but chose to withdraw "because of the lack of progress that has occurred over the past year in pursuing the mineral exchange option, and because of various acknowledged feasibility problems which have arisen[, ] raising questions about whether it is realistic to hope to achieve the mineral exchange as a solution." FS-003916. In that same letter, counsel "request[ed] that the Forest Service... bring the Operating Plan review process to a favorable conclusion expeditiously." FS-003917. Three months later, on November 15, 2013, Braunberger and Lothspeich "transferred [their mineral rights] by Quit Claim to Elkhorn Minerals." EA at 9.

The Forest Service thereafter "incorporate[d] changes resulting from public and agency input" into the draft EA and, on April 21, 2014, issued an updated EA. Defs.' Opp'n at 9. Three days later, on April 24, 2014, the Forest Service issued a draft DN/FONSI, which it then subjected to a "pre-decisional objection period." Defs.' Opp'n at 10. Following the close of the ...

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