Town of Superior v. United States Fish & Wildlife Service (913 F. Supp. 2d 1087, 2012)

United States District Court for the District of Colorado 2012-12-21

Conservation Highways The Public Health and Welfare Transportation

Citations

Full opinion text

ORDER

PHILIP A. BRIMMER, District Judge.

This matter comes before the Court on plaintiffs’ challenges in three consolidated cases to the final action of the United States Fish and Wildlife Service (“FWS”) approving a land exchange affecting the Rocky Flats National Wildlife Refuge in Colorado. Plaintiff Town of Superior filed its amended complaint on July 19, 2012 alleging violations of the Administrative Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and the Rocky Flats Act (“RFA”). Docket No. 68 at 18-21. Plaintiff City of Golden filed its complaint on January 5, 2012 alleging violations of the APA, NEPA, and the RFA in addition to a violation of the Endangered Species Act (“ESA”). 12-cv-00034-PAB, Docket No. 1 at 16-20. Plaintiffs WildEarth Guardians and Rocky Mountain Wild filed their complaint on February 14, 2012 alleging violations of the APA, NEPA, and the RFA. 12-cv-00388, Docket No. 1 at 18-23. The three cases were consolidated through orders dated January 27, 2012 and May 10, 2012. See Docket Nos. 20 and 38. The Board of County Commissioners of the County of Jefferson, the City of Arvada, the Jefferson Parkway Public Highway Authority (“JPPHA”), the Natural Resources Trustees of the State of Colorado, and the State Board of Land Commissioners have intervened as defendants. The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

I. BACKGROUND

In 1951, the United States government purchased several hundred acres of land northwest of Denver, Colorado to build the Rocky Flats nuclear weapons plant. AR 27233. In 1975, the government purchased a buffer zone of land around the plant, bringing the total area of the site to approximately 6,200 acres. Id. at n. 2. The plant was operated by the Department of Energy (“DOE”) and its predecessors. AR 27233. Weapons production was concentrated in a small area on the property and the buffer zone was “left mostly undisturbed.” AR 27239. However, over the course of forty years, manufacturing activities, spills, fires, and waste disposal released plutonium and other radionuclides, which were dispersed by wind and rain into the soil and water systems in the buffer zone. AR 27245.

In 1989, the Environmental Protection Agency (“EPA”) added Rocky Flats to the National Priorities List as a Superfund site. AR 27239; see the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9605(a)(8) (2012). In 1992, DOE ceased manufacturing weapons at the site. AR 27240. For the next two decades, EPA, DOE, and the Colorado Department of Public Health and Environment (“CDPHE”) collaborated on cleanup of the site. AR 27245-246, 26940 (1996 Final Rocky Flats Cleanup Agreement).

In 2001, Congress passed the RFA to create the Rocky Flats National Wildlife Refuge (“the Refuge”) out of the Rocky Flats Environmental Technology Site. Pub.L. No. 107-107, §§ 3171-82, 115 Stat. 1012 (2001). As part of the creation of the Refuge, the RFA provides that, upon receipt of a qualifying application, a strip of land along the eastern boundary of the Refuge (the “corridor”) must be transferred to a Colorado governmental entity for transportation improvements. Id. at § 3174(e). In 2006, Congress amended the RFA to encourage federal acquisition of private mineral rights on Rocky Flats. Pub.L. No. 109-163, § 3112, 119 Stat. 3136 (2006).

In 2004, pursuant to the RFA, the FWS issued a Comprehensive Conservation Plan/Environmental Impact Statement (“CCP/EIS”) outlining its plan for managing the Refuge. AR 3046; see RFA at § 3178. • The CCP/EIS concludes that transferring a corridor of land for transportation improvements would not significantly impact the Refuge. AR 3260-61.

In September 2006, EPA and CDPHE issued a final cleanup decision, recommending continued DOE jurisdiction over approximately 1,300 acres that required further cleanup, but finding the surrounding 4,900 acres tu be “acceptable for unrestricted use and unlimited exposure.” AR 2468. In 2007, EPA removed the buffer zone from the National Priorities List, and DOE transferred jurisdiction over approximately 4,000 acres to DOI to establish the Refuge. 72 Fed.Reg. 29,276; AR 1867-71.

In 2008, the City of Arvada, the City and County of Broomfield, and Jefferson County submitted an application for the transportation corridor to DOE in order to construct part of a thirteen-mile tollway to help complete the beltway around Denver. AR 15782. While awaiting DOE’s reply, they formed the JPPHA AR 4262. DOE’s reply stated that it had transferred jurisdiction over the corridor to the FWS and no longer had authority to approve the transfer of the corridor. AR 15794. Accordingly, JPPHA redirected its application to the Sécretary of the Interior. AR 15784. In March 2010, the FWS entered into discussions with JPPHA and other local government entities regarding the possible transfer of the corridor pursuant to a land exchange. AR 15782.

In May 2011, the City of Golden (“Golden”) submitted an application for the corridor in order to develop a bikeway. AR 15742-61. The FWS evaluated both JPPHA’s and Golden’s proposals for the corridor pursuant to NEPA and the ESA. See 42 U.S.C. § 4321; 16 U.S.C. § 1531. In November 2011, the FWS issued a Biological Opinion (“BiOp”) concluding that the land exchange proposed by JPPHA was not likely to jeopardize the endangered Preble’s Meadow Jumping Mouse (the “Preble’s mouse”) or its critical habitat. AR 14497-515. The FWS did not issue a statement exempting any accidental “take” of the Preble’s mouse at the time, but in February 2012 it completed a second BiOp, reaching the same conclusion and issuing a statement regarding the possibility of inadvertent take. AR 17974-998. In December 2011, the FWS issued an Environmental Assessment (“EA”) and a Finding of No Significant Impact (“FONSI”). AR 15596, 15024-027. In its FONSI, FWS selected JPPHA’s proposal for implementation. AR 15024. This decision was subsequently adopted by the Refuge Manager. AR 16408-412.

The land exchange agreements were finalized at the end of January 2012. AR 21018 (email forwarding final escrow agreements), 17900-905. The agreements specify that JPPHA, the City of Arvada, the Colorado Department of Natural Resources, the City and County of Boulder, and Jefferson County will contribute money toward FWS’ purchase of (1) approximately 617 acres of land, known as Section 16, which are adjacent to the Refuge and currently owned by the State Land Board; (2) leases for resource extraction on Section 16; and (3) privately owned mineral rights located elsewhere on Rocky Flats. AR 17904-05. In return, the FWS will give JPPHA a quitclaim deed to the transportation corridor. AR 17904.

Plaintiffs Golden, Town of Superior, WildEarth Guardians, and Rocky Mountain Wild filed this case against the FWS, DOI, and four DOI officials in their official capacities, alleging that the FWS’ approval of JPPHA’s .application and rejection of Golden’s application violated NEPA, the ESA, the RFA, and the National Wildlife Refuge System Administration Act. Plaintiffs seek an order holding unlawful and setting aside the FWS’ decision to enter into the land exchange and transfer the corridor to JPPHA.

II. DISCUSSION

A. Standard of Review

Pursuant to the APA, 5 U.S.C. § 701, the Court must determine whether the agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at § 706(2)(A). The scope of this review is narrow. See Colo. Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir.2006) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “An agency’s decision is arbitrary and capricious if the agency (1) entirely failed to consider an important aspect of the problem, (2) offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, (3) failed to base its decision on consideration of the relevant factors, or (4) made a clear error of judgment.” New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir.2009) (internal citation omitted). “In addition to requiring a reasoned basis for agency action, the ‘arbitrary or capricious’ standard requires an agency’s action to be supported by the facts in the record.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994). An agency’s decision, therefore, is arbitrary if not supported by “substantial evidence.” Id. “Evidence is substantial in the APA sense if it is enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.” Id. (internal citation omitted).

A presumption of validity attaches to agency action and the burden of proof rests with the appellants who challenge such action. Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir.2008). The deference given to agency action is “especially strong where the challenged decisions involve technical or scientific matters within the agency’s area of expertise.” Utah Envtl. Cong. v. Dale Bosworth, 443 F.3d 732, 739 (10th Cir.2006).

B. Rocky Flats National Wildlife Refuge Act

Plaintiffs allege that the FWS lacks statutory authority to transfer the transportation corridor because the RFA vested that power exclusively in DOE and because that authority expired when DOE transferred administrative jurisdiction of the Refuge to DOI. Docket No. 117 at 1-2. Plaintiffs further allege that JPPHA’s proposal does not meet the RFA’s requirements and that the FWS’ rejection of Golden’s proposal was arbitrary and capricious. Docket No. 100 at 53-61.

1. Statutory Authority to Transfer the Transportation Corridor

a. Statutory Framework

The RFA has a dual purpose: to create the Refuge and to provide for ongoing cleanup of the site. Id. at § 3172(b). The balance between these goals is evident in the provision that, 30 business days after the EPA certifies to the Sécretary of Energy and the Secretary of the Interior that cleanup of the site is complete, the Secretary of Energy “shall transfer administrative jurisdiction over the property that is to comprise the refuge to the Secretary of the Interior.” Id. at § 3175(a)(1), (2). The RFA specifies that DOE is to retain jurisdiction over only that property used in the continuing environmental cleanup. Id. at § 3175(d).

The RFA provides that, no later than 30 days after transfer of jurisdiction, the Secretary of the Interior must establish a wildlife refuge on the land. Id. at § 3177(b). The Secretary of the Interior is then charged with managing the Refuge in accordance with the RFA’s purposes, namely, restoring and preserving native ecosystems; providing habitat for native plants and wildlife; conserving endangered species; and providing opportunities for scientific research, where possible. Id. at § 3177(e). The RFA provides that all “right, title, and interest” in Rocky Flats held or acquired after the RFA’s enactment shall be retained by the United States. Id. at § 3174(a). •

In addition to its two main purposes, the RFA is also intended to ease pressure on regional transportation facilities by allocating a strip of land at the edge of the Refuge for transportation improvements. Id. at § 3174(e). This purpose was articulated by one of the bill’s sponsors, then-Representative Mark Udall, speaking on the House floor:

Rocky Flats is located in the midst of a growing area of the Denver metropolitan region. As this area continues to grow, pressure is being put on the existing transportation facilities just outside the borders of the site. In addition, the Denver-metropolitan region has been constructing a beltway around the city. The last segment of this beltway yet to be completed or approved for construction is to be in the northwest section of Denver, the same general areas where Rocky Flats is.located. The communities that surround the site have been considering transportation improvements in this area for a number of years — including the potential completion of the beltway.

146 Cong. Rec. E1560 (daily ed. Sep. 21, 2000) (statement of Rep. Udall). Representative Udall further stated that the RFA “should allow for possible availability of some land along Indiana Street” but should not “specifically provide for a more far-reaching availability of Rocky Flats land for a beltway.”- Id. The RFA implements the goal of improving regional transportation by providing for the transfer of the transportation corridor to a government entity:

On submission of an application meeting each of the conditions specified in paragraph (2), the Secretary, in consultation with the Secretary of the Interior, shall make available land along the eastern boundary of Rocky Flats for the sole purpose of transportation improvements along Indiana Street.

Rocky Flats Act, § 3174(e)(1). The RFA states that applications may only be accepted from, a county, city, or other political subdivision of Colorado, must document that improvements will be carried out so as to minimize their adverse effect on the Refuge, and must show -that the proposed improvements are included in the Denver Regional Transportation Plan. Id. at § 3174(e)(2). The RFA also requires the Secretary of the Interior to make recommendations about land that could be made available for transportation improvements in the context of developing a comprehensive conservation plan for the Refuge. Id. at § 3178(d)(1).

The RFA states that the transfer of the corridor shall be made “in compliance with applicable law.” Id. at § 3174(e)(1)(D). It also states that DOI “shall manage the refuge in accordance with applicable law, including ... the National Wildlife Refuge System Administration Act” (the “Refuge Act”). Id. at § 3177(e)(1). The Refuge Act states that the FWS must manage refuge land with an eye to the “restoration, preservation, development and management of wildlife and wildlands habitat ... and for the management of wildlife and wildlands to obtain the maximum benefits from these resources.” 50 C.F.R. § 25.11 (2012). To that end, it generally prohibits the transfer or disposal of lands within the refuge system. 16 U.S.C. § 668dd(a)(5) (2012). It does, however, permit the government to exchange Refuge land for other interests in real property so long as the “values of the properties so exchanged” are “approximately equal” or “equalized by the payment of cash.” Id. at § 668dd(b)(3). The FWS may only enter into an exchange that “provide[s] a benefit to refuge-.resources managed by the Service.” AR 4807; see 16 U.S.C. § 668dd(4). -

Although not explicitly mentioned in the RFA, applicable law also includes the Fish and Wildlife Act of 1956, which created the FWS. 16 U.S.C. § 741-754e (2012). The Act authorizes the Secretary of the Interi- or to “take such steps as may be required for the development, advancement, management, conservation, and protection of fish and wildlife resources including ... acquisition by purchase or exchange of land and water, or interests therein.” 16 U.S.C. § 742f(a)(4).

b. Facts Relevant to Transfer Authority

In 2004, the FWS issued its CCP/EIS, intended to “guide management of Refuge operations, habitat restoration and visitor services for the next 15 years.” AR 3062. The CCP/EIS states that the “Refuge Act’s § 3174 prohibits the construction of a public road through the Refuge. However, the DOE can make available land along the eastern boundary of the Refuge for the sole purpose of transportation improvements along Indiana Street.” AR 3146.

In 2006, EPA, DOE, and CDPHE issued a Corrective Action Report/Record of Decision (“CAD/ROD”) certifying that cleanup of Rocky Flats was complete and that the land was available for unrestricted use. See AR 2452. In 2007, DOE transferred administrative jurisdiction over the land to DOI, thereby creating the Refuge. AR 1874-86. DOI, through the FWS, has been managing the Refuge since that time. Id.

As already noted, in April 2008, the City of Arvada, the City and County of Broom-field, and the County of Jefferson sent an initial request to the Secretary of Energy seeking transfer of the transportation corridor. AR 4347-48. DOE and DOI met to discuss the proposal and determine how to proceed. See, e.g., AR 4363. On July 9, 2008, the Director of DOE’s Office of Legacy Management sent these entities a reply which explained that DOE lacked jurisdiction to transfer the corridor:

[The transportation corridor] was transferred from the Department of Energy (DOE) to the U.S. Fish and Wildlife Service (USFWS) on July 12, 2007. The transfer gave total jurisdiction to the USFWS subject to environmental restrictions that were described in the transfer document and the environmental covenants in existence at the time. DOE therefore has no authority or jurisdiction regarding the 300 foot strip of land on the eastern side of the Rocky Flats Wildlife Refuge except for any appropriate environmental restrictions discussed in the aforementioned transfer document. The USFWS is the appropriate federal entity with jurisdiction to work any transfers provided for in the 2001 Rocky Flats Wildlife Refuge Act.

AR 15794. The local government entities redirected their inquiry to the FWS. See AR 15975-976.

The FWS considered the question of transfer authority before responding to the local governments’ application. An April 2009 FWS memorandum to the Assistant Secretary of DOI queries “[whether or not the Act authorizes the Department of Interior (DOI), as opposed to the Department of Energy (DOE), to sell or transfer the right of way.” AR 4586. It goes on to ask “whether or not DOI can transfer the 300-foot strip of land -back to DOE, and if so by what authority. The Act contemplated a transfer from DOE, which may have broader authorities to transfer the- property to JPPHA for transportation purposes if DOI could return it to DOE.” Id. It concludes by stating that the FWS met with representatives from the DOI’s Solicitor’s Office for the Rocky Mountain Region to draft a reply to JPPHA’s application, Id. The FWS responded to the applicants, explaining that it has authority to transfer the corridor pursuant to both the Refuge Act and the Fish and Wildlife Act. AR 4805-08, 15603; see 16 U.S.C. § 668dd(b)(3); 16 U.S.C. § 742f(a)(4).

In 2011, the FWS issued an Environmental Assessment (“EA”) of the proposed land exchange. AR 15587. The EA lists alternatives to the land exchange that the FWS initially considered but eliminated from further analysis, including the option to return management of the transportation corridor to DOE. AR 15613. The EA explains the FWS’ reason for rejecting this alternative:

The Rocky Flats Act required the Secretary of Energy to be responsible for disposal of the transportation corridor. The transportation corridor was contemplated in the Corrective Action Decision/Record of Decision for the Rocky Flats Plant Peripheral Operable Unit and Central Operable Unit, and lands were transferred to the Service in 2007 (DOE 2006). This alternative would require that management authority over lands be transferred back to DOE. Transfer of management authority from the Service to DOE is not in the interest of any party and would result in increased overall costs.

AR 15613. Although DOE disclaimed jurisdiction over the transfer, it did consult with the FWS prior to the acceptance of JPPHA’s application, providing comments to the- draft EA and explicitly articulating its approval of the proposed land exchange. AR 15555 (FWS email memorializing conference call with DOE regarding draft EA and stating that “DOE will not oppose the EA proposed action, nor the response to comments.... Therefore, we believe that there are no DOE concerns that would preclude a FONSI determination.”). In December 2011, the FWS approved JPPHA’s application for the corridor and the related land exchange. AR 15024.

c. Discussion

Plaintiff Town of Superior argues that the RFA authorizes only DOE to transfer the corridor, and that, while DOE must seek the FWS’ advice, it cannot empower the FWS to make the final decision. Docket No. 118 at 4-5. It also argues that the record shows the FWS initially interpreted the statute as permitting only DOE to transfer the corridor. Id. at 8-10. Plaintiffs WildEarth Guardians and Rocky Mountain Wild argue that all authority to transfer the corridor expired once the FWS assumed administration of the Refuge. Docket No. 117. They point out that the RFA imposes certain obligations jointly on DOE and DOI, but expressly limits the duty to transfer the .corridor to DOE. Docket No. 117 at 2; compare Rocky Flats Act, § 3174(c) (“Neither the Secretary nor the Secretary of the Interior shall allow the annexation of land within the refuge by any unit of local government.”) with § 3174(e)(1)(A) (“the Secretary, in consultation with the Secretary of the Interior, shall make available land”). They further assert that the expiration of transfer authority is consistent with the goal of preserving Refuge land. Docket No. 117 at 3; Rocky Flats Act, § 3172(b)(1).

Defendants argue that the statute’s transfer or “administrative jurisdiction” over the Refuge land to DOI included the power to dispose of the transportation corridor. Docket No. 116 at 2; Rocky Flats Act, § 3175(a)(1). Accordingly, defendants read § 3175(a) as terminating DOE’s authority under § 3174(e)(2)(A) once the transfer of jurisdiction was complete. Docket No. 116 at 5. Defendants further assert that the list of exceptions to DOI’s administrative jurisdiction is exclusive, confining DOE’s authority to sites involved in ongoing environmental cleanup. Docket No. 116 at 4-5; see Rocky Flats Act, § 3176. DOE concurs in this interpretation, as it stated in its July 2008 letter disclaiming authority to sell or exchange the corridor: “[t]he transfer gave total jurisdiction to the USFWS subject to environmental restrictions that were described in the transfer document....” AR 15794. In addition, defendants argue that the RFA does not abrogate DOI’s powers under the Refuge Act, which authorizes it to enter into land exchanges that benefit refuge property. Docket No. 116 at 2-5; see 16 U.S.C. § 668dd(b)(3).

In construing a statute, courts must condition their reading of each word or phrase “upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). The courts’ purpose in this task is to “give effect to the intent of Congress.” Robbins v. Chronister, 402 F.3d 1047, 1050 (10th Cir.2005) (internal citation omitted). To that end, “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Id. (citing Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)).

As stated above, the purpose of the RFA is two-fold: to create a wildlife refuge at Rocky Flats and to provide for ongoing cleanup of the site. Rocky Flats Act, § 3172(b). The legislative history and the inclusion of § 3174 indicates that the RFA has an additional purpose, which is to relieve the “pressure [] being put on the existing transportation facilities just outside the borders of the site.” 146 Cong. Reo. E1560 (daily ed. Sep. 21, 2000) (statement of Rep. Udall). The effort to balance these goals is evident in the design of the RFA, which grants DOI administrative jurisdiction over all Refuge land while carving out an exception solely for property involved in environmental cleanup. Compare Rocky Flats Act, § 3175 with § 3176. Accordingly, the RFA ensures that, subsequent to transfer, DOE has no remaining responsibilities on Refuge land, save for those related to cleanup. See id. at §§ 3175(d), 3176. Given “the whole statutory text” and “considering the purpose and context of the statute,” Congressional intent would be stymied by a reading that prevented the FWS from exercising jurisdiction over the transportation corridor and that required DOE to take charge of a decision with a much greater impact on Refuge management than on the cleanup process. See Dolan, 546 U.S. at 486, 126 5.Ct. 1252; Robbins v. Chronister, 402 F.3d at 1050.

Furthermore, the reading advanced by plaintiffs WildEarth Guardians and Rocky Mountain Wild is not tenable as it leads to an absurd result. See Robbins v. Chronister, 402 F.3d at 1050. Nowhere does the RFA state that transfer authority expires, and reading such a limitation into § 3174 would frustrate Congressional intent to improve regional transportation facilities. See 146 Cong. Rec. E1560 (daily ed. Sep. 21, 2000) (Rep. Udall). WildEarth Guardians and Rocky Mountain Wild do not explain why the RFA’s purpose is served by ensuring that the conveyance would “occur, if at ail, before Rocky Flats became a National Wildlife' Refuge.” Docket No. 117 at 3 (emphasis in original). Nor do they explain why Congress would expect local governments to invest time and resources in acquiring land not yet certified as safe for use. See Rocky Flats Act § 3175(a).

In sum, the FWS acted in accordance with the RFA in approving the land exchange.

2. Mitigation Measures

Plaintiffs argue that JPPHA’s application does not meet the conditions of the RFA because it does not include sufficient “documentation demonstrating that the transportation improvements for which the land is to be made available ... are carried out so as to minimize adverse effects on the management of Rocky Flats as a wildlife refuge----” Rocky Flats Act, § 3174(e)(2)(B)©; Docket No. 100 at 53-55.

JPPHA’s August 11, 2008 application for the corridor cites two sources to document its compliance with the minimization requirement. AR 4386. First, it references the finding in the FWS' 2004 CCP/EIS that “transfer of a corridor up to 300 feet wide would not adversely affect the management of the refuge.” Id.; AR 3260. Second, it cites CDOT’s Northwest Corridor Transportation and Environmental Planning Study. AR 1553. The CDOT study considers a number of possible improvements and recommends a plan that includes a tollway alignment along the eastern boundary of the Refuge because that plan would balance “future transportation needs (2030 horizons) with community and environmental impacts better than the other alternatives considered.” AR 1479,1554.

On April 16, 2009, JPPHA adopted a resolution that lists the mitigation measures contained in the 2004 CCP/EIS, declares that these measures are acceptable to JPPHA, recognizes that these measures will be “required of those designing, constructing, maintaining, and operating” the parkway, resolves that JPPHA is “capable of and willing to implement each of the strategies,” and further resolves that JPPHA will negotiate a memorandum of understanding with the FWS to “memorialize” its “commitment to accomplish the desired impact minimization and mitigation.” AR 14537 (listing mitigation measures including “best management practices for water quality,” “best management practices for noxious weed control,” “below-grade small animal crossings and large animal preventative fencing,” and “noise-reducing and light-reducing techniques”).

On January 26, 2010, JPPHA submitted a proposal to the FWS for direct sale of the corridor, citing the 2004 CCP/EIS and the Board resolution as evidence of its compliance with the mitigation requirement. AR 5105-6. A November 2011 FWS email states that JPPHA could satisfy the minimization requirement by submitting a letter “explicitly stating their commitment to follow the recommended measures from the transportation study.” AR 14528.

According to Golden’s reading, the RFA’s minimization requirement comprises not only a procedural but also a substantive element, obligating the FWS to “choose the proposal with the fewest adverse impacts to the Refuge.” Docket No. 93 at 46. Golden argues that this reading is supported by the statute as a whole, which instructs the FWS to manage the Refuge for preservation of wildlife and plant communities. Id. at 48-49. It argues that JPPHA’s documentation is insufficient because it “provides only general assurances about complying with generic mitigation measures.” Id. at 48. It further argues that the FWS’s analysis of the proposed parkway was insufficient to understand its impacts on the Refuge and how they may be minimized. Id.

The FWS interprets the phrase “are carried out so as to minimize adverse effects” to mean that an applicant must indicate that it will undertake steps, in the course of constructing transportation improvements, to ensure that the effects of those improvements are minimized with respect to that particular project. In other words, the FWS understands this to be a strictly procedural provision, requiring only that an “applicant submit ... information on the steps they will take to minimize the effects of their actions” and not a “comparison of how minimal the minimized impacts are among competing applications.” AR 15977.

Under Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), analysis of an agency’s interpretation of a statute begins by determining whether Congress has spoken to the precise question at issue. If Congress has not, the court must consider whether the agency’s construction is permissible. Id. A permissible construction is not necessarily the one the court itself would have chosen had it the authority to do so. Id. at 843, 104 S.Ct. 2778.

In assessing whether to accord an agency Chevron deference, courts consider the “degree of the agency’s care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency’s position.” United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Decisions made pursuant to notice-and-comment rule-making or adjudication tend to receive substantial deference, although deference may be accorded even when “no such administrative formality was required and none was afforded.” Id. at 231, 121 S.Ct. 2164. On the other end of the spectrum, decisions announced in opinion letters, policy statements, agency manuals, and enforcement guidelines generally do not receive Chevron deference. Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000). Where Chevron deference is not warranted, courts weigh an agency’s decision according to the “thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

The RFA does not use any comparative or superlative language stating that the FWS is bound to select the application that will have the least impact. Instead, the phrase “carried out so as to minimize” indicates that applicants need only document how they will minimize the effects of their project to the extent possible for that particular project. See Rocky Flats Act, § 3174(e)(2)(B)(i). Moreover, Golden does not explain how applicants are to acquire the information necessary to show that their project will have less of an impact than other proposed projects.

The Court finds that the RFA’s mandate to the FWS to document that improvements will be “carried out so as to minimize adverse effects on the management of Rocky Flats as a wildlife refuge” is ambiguous in that it is susceptible to multiple interpretations regarding the meaning of “minimize” and regarding the volume and nature of documentation necessary. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. The FWS’ resolution of this ambiguity is entitled to Chevron deference because the FWS is charged with implementing the RFA, the decision to approve JPPHA’s application implicated the FWS’ Refuge-management expertise, and the FWS engaged in notice-and-comment procedures before approving the land exchange. See Mead, 533 U.S. at 228, 121 S.Ct. 2164.

Granting the FWS the appropriate deference, the Court finds that its interpretation of the RFA in regard to the phrase “carried out so as to minimize” is a permissible one. JPPHA’s documentation complied with the FWS’ interpretation of the requirement. By recognizing that construction of the parkway will require minimization measures, and resolving to work with the FWS to develop and implement those measures already identified in the CCP/EIS, JPPHA demonstrated that it will carry out construction of the proposed parkway so as to minimize the effects of that particular project on the Refuge. See AR 14537. The Court affirms the FWS’ determination that the statute requires nothing more.

3. Golden’s Application

Golden argues that the FWS’ denial of its application was arbitrary and capricious in part because the proposed bikeway was included in the “regional transportation plan of the metropolitan planning organization designated for the Denver metropolitan area” under the meaning of the RFA. Rocky Flats Act, § 3174(e)(2)(B)(ii); Docket No. 93 at 50-51. Defendants counter that Golden’s proposal did not meet the RFA’s requirements because it was not included in the fiscally constrained Regional Transportation Plan. Docket No. 95 at 41-43.

The RFA states that applications for the transportation corridor are only eligible if they “include[ ] documentation demonstrating that the transportation improvements for which the land is to be made available ... are included in the regional transportation plan of the metropolitan planning organization designated for the Denver metropolitan area under section 5303 of title 49.” Rocky Flats Act, § 3174(e)(2)(B)(ii).

Metropolitan transportation planning is intended to assist localities develop public transportation systems that will foster “desirable urban development” and help meet the transportation needs of the elderly, people with disabilities, and low-income individuals, while minimizing fuel consumption and air pollution. 49 U.S.C. § 5301(f); 23 U.S.C. § 134(a)(1). Accordingly, metropolitan planning organizations must periodically issue long-range regional transportation plans. 49 U.S.C. § 5303(i)(2). A regional transportation plan must contain a financial plan that “demonstrates how the adopted transportation plan can be implemented, indicates resources from public and private sources that are reasonably expected to be made available to carry out the plan, and recommends any additional financing strategies for needed projects and programs.” Id. at § 5303(i)(2)(C). The “financial plan” may contain “for illustrative purposes, additional projects that would be included in the adopted transportation plan if reasonable additional resources beyond those identified in the financial plan were available.” Id. However, transportation plans must be “fiscally constrained” in order to comply with the Clean Air Act. 40 C.F.R. § 93.108. A fiscally constrained plan is one that “includes sufficient financial information for demonstrating that projects” in the plan can be “implemented using committed, available, or reasonably available revenue sources.” 23 C.F.R. § 450.104. In addition, transportation plans “shall” include “pedestrian walkway and bicycle transportation facilities.” 23 C.F.R. § 450.322.

On September 2, 2008, Golden sent a letter to the FWS arguing that JPPHA was ineligible for the transportation corridor because the proposed parkway, while included in the 2035 Metro Vision Regional Roadway System issued by the Denver Regional Council of Governments (“DRCOG”), was not listed in the fiscally constrained 2035 Regional Transportation Plan. AR 4436. Golden argued that the Metro Vision plan was “simply a depiction of DRCOG’s unconstrained transportation vision and goals; it is not the fiscally constrained regional transportation plan required by ... U9 U.S.C. § 5303.” AR 4436 (emphasis in original). On June 8, 2009, Golden sent a similar letter, arguing that it was unlikely that the proposed parkway would be eligible for the fiscally constrained Regional Transportation Plan based on studies showing that the parkway would not generate sufficient revenue to pay its costs, especially in the current economy. AR 4800. Golden further argued that “[although DRCOG has developed its unconstrained transportation vision and goals as locally-provided additions to the federal process in its ‘Metro Vision Plan,’ references to transportation plans under federal law only mean fiscally constrained plans.” AR 4800.

In February 2011, DRCOG released the 2035 Metro Vision Regional Transportation Plan, which includes as Chapter 5 the Fiscally Constrained Regional Transportation Plan. AR 23251-256. The Metro Vision plan explains that it is “unconstrained by financial limitations” but contains a “federally required component” that “defines the specific transportation elements and services that can be provided over the next 25 years based on reasonably expected revenues.” AR 23259. It further explains that federal funds are available but can only be allocated according to a “regional plan that reflects expected revenues.” AR 23259. It concludes that the Metro Vision plan includes the fiscally constrained Regional Transportation Plan for “federal funding purposes.”' AR 23259-260.

The Metro Vision plan identifies “regional and community” bicycle corridors “as part of a system” intended to ensure “connections among various parts- of the region.” AR 23327. It explains that the “precise location of many corridor facilities is not known at this time” but that any new facilities designated according to the plan must be “within 1,000 feet of the mapped route.” AR 23327. -It contains a map depicting the “2035 Regional Bicycle Corridor System Vision.” AR 23329. On the map, the portion of Indiana Street adjacent to Rocky Flats is labeled as a “community corridor.” Id.

The February 2011 fiscally constrained Regional Transportation Plan calculates that it will cost $900 million to construct the new bicycle and pedestrian facilities outlined in the Metro Vision plan but identifies only $590 million in available revenues. AR 23377. It does not identify which bicycle and pedestrian routes will be built and which will not. Id.

On December 14, 2011, the FWS sent a letter to Golden explaining that the proposed bikeway does not satisfy the RFA in part because it is not included in the fiscally constrained Regional Transportation Plan. AR Í6292-294; see also AR 15597 (EA explaining rejection of Golden’s application on the same grounds).

The Court finds Golden’s initial arguments persuasive. Given that the Clean Air Act requires regional transportation plans to be fiscally constrained, it would be illogical to interpret the term “regional transportation plan” in a federal statute to encompass a fiscally unconstrained plan. See 40 C.F.R. § 93.108 (“Transportation plans ... must be fiscally constrained ... in order to be found in conformity.”). This interpretation is consistent with the RFA’s goal of easing existing pressure on transportation facilities, which would be served by conditioning the transfer of the corridor on a showing that fiscal constraints will not preclude the proposed improvements.

However, this interpretation does not mean that the fiscally constrained Regional Transportation Plan is invalid because it does not identify specific bicycle or pedestrian projects. See Docket No. 100 at GOBI. The fiscally constrained Regional Transportation Plan meets the federal requirements that it “include ... bicycle transportation facilities” and that it give “due consideration” to bicyclists by allocating $590 million to “New Bicycle/Pedestrian Facilities.” 49 U.S.C. § 5303(c); .23 U.S.C. § 217(g)(2).

The FWS’ reading of the phrase “regional transportation plan” to mean the federally required fiscally constrained Regional Transportation Plan is permissible, and thus it was not arbitrary and capricious to reject Golden’s application on the ground that its application was not included in the fiscally constrained plan.

C. The National Wildlife Refuge System Administration Act

Plaintiffs argue that the FWS violated the Refuge Act by failing to issue a compatibility determination. Docket No. 92 at 37-40; Docket No. 100 at 61-62; 16 U.S.C. § 668dd(d); 50 C.F.R. § 26.41. Defendants contend that such an analysis is not required because the RFA supersedes the Refuge Act’s compatibility determination requirement. Docket No. 95 at 117.

The Refuge Act states that the Secretary of the Interior “shall not initiate or permit a new use of a refuge or expand, renew, or extend an existing use of a refuge, unless the Secretary has determined that the use is a compatible use.” 16 U.S.C. § 668dd(d)(3)(A)(i). A use is “compatible” if it will not “materially interfere with or detract from the fulfillment of the mission of the System or the purposes of the refuge.” 16 U.S.C. § 668ee(l). The statute lists hunting, fishing, public recreation, public access, accommodation, and easements for utilities or transportation as examples of compatible uses. 16 U.S.C. § 668dd(d)(l). The statutory examples “encompass a common ingredient,” namely, they are all “meant to be performed by third parties or the public.” Fund for Animals v. Clark, 27 F.Supp.2d 8, 11 (D.D.C.1998).

A compatibility determination must be in writing and its conclusion must be based on the Secretary’s “sound professional judgment.” 50 C.F.R. § 25.12; see Ctr. for Food Safety v. Salazar, 898 F.Supp.2d 130, 152, 2012 WL 4857793, at *19 (D.D.C. Oct. 15, 2012). It must address a number of issues, including the nature and extent of the new use, the reason for proposing a new use, the expected impact of the new use on the individual refuge and the refuge system as a whole, the costs of administering the new use, and stipulations required to ensure compatibility. 50 C.F.R. § 26.41(a). A compatibility determination is not required for flights over a refuge or for activities conducted by an agency other than the FWS that has primary jurisdiction over refuge land. 16 U.S.C. § 668dd(d)(4)(A)-(B). In addition, the FWS’ internal guidance states that a compatibility determination is not required where “legal mandates supersede those requiring compatibility.” See National Wildlife Refuge System Uses Compatibility, 603 FW 2.10(B)(1) (Nov. 17, 2000), available at http://www.fws.gov/policy/603fw2. html. The FWS did not issue a compatibility determination for the land exchange. The EA explains:

The Service’s Compatible Uses Policy (USFWS 2000b), and the National Wildlife Refuge System Improvement Act set forth general rules and provide guidelines for determining compatibility of existing and proposed uses of the Refuge. This policy does not apply to circumstances where other legal mandates supersede those requiring compatibility.

AR 15737 (Appendix D: Process for Evaluation of Competing Applications).

An agency interpreting its own statute receives “substantial deference” and its interpretation is granted “controlling weight” unless “plainly erroneous or inconsistent with the regulation.” United States v. Mollner, 643 F.3d 713, 718 (10th Cir.2011). Town of Superior argues that the RFA does not “supersede” the Refuge Act because it explicitly states that the corridor must be transferred “in compliance with applicable law.” Docket No. 92 at 38; see Rocky Flats Act, § 3174(e)(1)(D). It further argues that a compatibility determination would have compelled the FWS to acknowledge that it lacks the funds to properly administer an expanded Refuge, as evidenced by a 2011 DOI report noting that the Refuge has not yet opened to the public and- that invasive weeds are threatening its biological diversity. Id. at 38-40; AR 20805.

Plaintiffs do not explicitly identify the alleged “use” that the FWS is initiating or expanding, but imply that a compatibility determination was required for the acquisition of land. See Docket No. 92 at 40 (“There is no rationale that would support increasing the size of the Refuge by 15% in the face of these realities under the Compatible Use requirements. USFWS’ decision to acquire Section 16 is not supported by the administrative record, is contrary to the agency’s compatible uses policy, and is arbitrary and capricious.”); Docket No. 100 at 61-62; see also 16 U.S.C. § 668dd(d)(3)(A)(i). Plaintiffs do not allege that FWS is proposing to allow new uses on Section 16 and, in fact, state that the FWS has not permitted any third-party uses, criticizing the failure to open the Refuge to the public. See Docket No. 92 at 39 (“Contrary to the purposes for the Refuge that were outlined in the CCP/ EIS, the Refuge has never opened to the public.”); Docket No. 100 at 61-62.

The plain language of the Refuge Act supports the conclusion that a compatibility determination is not required for the acquisition of land. First, the list of example uses does not include the acquisition or sale of refuge land, but instead references only activities carried out by third parties on existing refuge land, such as hunting, fishing, or placing lines for utilities. See 16 U.S.C.- § 668dd(d)(l)(A)-(B). Second, the Refuge Act’s provision authorizing the FWS to enter into land exchanges is separate from the provision requiring a compatibility determination. Compare 16 U.S.C. §. 668dd(b)(3) with § 668dd(d). Moreover, § 668dd(b)(3) does not impose any requirements on the Secretary’s decision to exchange land, other than the requirement that the “values of the properties so exchanged either shall be approximately equal, or if they are not approximately equal the values shall be equalized by the payment of cash to the grantor or to the Secretary.” 16 U.S.C. § 668dd(b)(3). Congress is presumed to know how to condition an agency’s exercise of authority on .the completion of an analysis and did not do so in this instance.

Plaintiff Town of Superior alleges that a compatibility determination is required “when proposing a significant change to existing operations (including expansion of existing uses).” Docket No. 92 at 38. Its reliance on.the FWS’ regulations to support this proposition is unfounded. The FWS regulations, 50 C.F.R. § 26.41, echo the statutory language and do not impose the additional requirement of completing a determination for a major “change to existing operations.” See 50 C.F.R. § 26.41 (“The Refuge Manager will not initiate or permit a new use of a national wildlife refuge or expand, renew, or extend an existing use of a national wildlife refuge, unless the Refuge Manager has determined that the use is a compatible use.”).

Plaintiffs do not cite any cases challenging a land , exchange on the grounds that the FWS failed to complete a compatibility determination. Instead, the decision to enter into a land exchange is committed to the FWS’ discretion. See Sierra Club v. Hickel, 467 F.2d 1048, 1050-51 (6th Cir.1972) (holding that, because “the Secretary [of the Interior] had discretion [under the Refuge Act and the Fish and Wildlife Act] to determine whether he should enter into the agreement for the exchange of the lands, his action in so doing is not reviewable by the courts.”). In addition, the District Court for the District of Columbia has recognized that the term “use” does not encompass the FWS’ own actions on refuge land, but instead refers only to actions taken by third parties. Fund for Animals, 27 F.Supp.2d at 11 (holding that the FWS did not need to conduct a compatibility determination for its elk feeding program because it would be carried out by “persons authorized to manage” the refuge).

Since the land exchange does not fall within the meaning of “use” under the Refuge Act, the FWS was not required to conduct a compatibility determination.

D. National Environmental Policy Act

1. Statutory Framework

NEPA declares the federal government’s policy to “use all practicable means and measures, including financial and technical assistance ... to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4381(a). To that end, NEPA imposes a requirement on federal entities to take a “hard look” at any proposed action to determine what effect such action will have on the human environment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

If a proposed federal action will not have a “significant” environmental impact, an agency may satisfy NEPA by preparing an environmental assessment (“EA”), which is a “concise public document” that provides “sufficient evidence and analysis” for the agency to determine whether it needs to prepare either a more in-depth environmental impact statement .(“EIS”) or, instead, can issue a finding that the action in question will have no significant impact (“FONSI”). 40 C.F.R. § 1508.9(a). An EA need only include “brief discussions” of the need for the proposal, alternatives, and environmental impacts of both the proposed action and its alternatives. Id. at § 1508.9(b) (internal citations omitted).

However, a full EIS must be prepared before an agency may take a “major Federal actionf ] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). An EIS is an “action-forcing device” with two primary purposes: (1) to ensure that the decisionmaker “will have available, and will carefully consider, detailed information concerning significant environmental impacts,” and (2) to make information available to the public, which “may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson, 490 U.S. at 349, 109 S.Ct. 1835. An EIS must address the environmental impact of the proposed action; adverse effects that cannot be avoided; mitigation measures; alternatives to the proposed action, including a no-action alternative; direct, indirect, and cumulative impacts of the proposed action; and any “irreversible and irretrievable commitments of resources” entailed in implementing the proposed action. 42 U.S.C. § 4332; 40 C.F.R. § 1508.25.

Agencies must begin the NEPA evaluation process as early as possible to ensure incorporation of environmental values into agency action and to avoid downstream delays. 40 C.F.R. § 1501.2. In addition, an EIS should be prepared as soon as possible following an agency’s receipt of a proposal so that the EIS serves the decisionmaking process, instead of rationalizing it after the fact. 40 C.F.R. § 1502.5.

2. Alleged NEPA Violations

Plaintiffs allege that the FWS violated NEPA by erroneously concluding that its proposed action will have no significant environmental impact and by approving JPPHA’s application and entering into the land exchange without preparing an EIS. Docket No. 100 at 13-21. Defendants assert that the FWS’ analysis, embodied in the 2004 CCP/EIS and the 2011 EA, was sufficient under NEPA to support the conclusion that the land exchange will have no significant impact and thus that an EIS was not required. Docket No. 95 at 46.

a. Facts Relevant to the Alleged NEPA Violations

As stated earlier, the FWS issued a CCP/EIS in 2004, pursuant to the RFA before proposals to purchase the transportation corridor had been submitted. See Rocky Flats Act, § 3178. The CCP/EIS was intended to guide management of the Refuge for the next fifteen years. AR 3066. It assesses four different management alternatives: (1) no development of public facilities or education programs (which the FWS selected as the no action alternative); (2) wildlife conservation in conjunction with development of limited facilities for public use (which the. FWS selected as the preferred alternative); (3) ecological restoration to pre-settlement conditions; and (4) development of broad and varied opportunities for public use. AR 3066-67. The CCP/EIS acknowledges the likelihood that there will be transportation improvements near the Refuge, especially in light of the FWS’ statutory obligation to identify land along Indiana Street to be made available for sale. AR 3260; see Rocky Flats Act, § 3174(e). With respect to such improvements, the CCP/EIS analyzes the “potential indirect impacts to the Refuge, as well as recommendations that could minimize or mitigate the effects of transportation improvements,” and specifically addresses water quality, noxious weeds, wildlife corridors, noise and aesthetics, and public use facilities. AR 3260-62.

The CCP/EIS does not, however, contain a “detailed analysis of any specific type of transportation improvement along Indiana Street, such as construction of a four-lane divided highway,” explaining that such an analysis is outside the scope of the document. AR 3261. It concludes that “[biased on this analysis, and the need for future coordination and consultation associated with any transportation improvement, along Indiana Street, the Service finds that transfer of a corridor up to 300 feet wide would not adversely affect the management of the Refuge.” AR 3260.

In July 2009, JPPHA submitted an application to DRCOG requesting inclusion of the proposed parkway in the 2035 Regional Transportation Plan, a prerequisite for purchasing the transportation corridor. AR 24672; Rocky Flats Act, § 3174(e)(2)(B)(ii). This application contains the most recent version of JPPHA’s proposal, including traffic projections, AR 24679, 24728-30, 24782-86, and information regarding the possible route and location of new interchanges. AR 24746, 24758-60, 24744. The application states that the project will require private money, but as of 2009, no private funding had been secured. AR 23666. (“The JPPHA expects to enter into an agreement with a private entity which will develop, finance, design, build, operate, and maintain the project for a predetermined time period allowing a fair return prior to handing the asset back to the JPPHA.”).

After DRCOG added the Jefferson Parkway to the Regional Transportation Plan, JPPHA formally applied to purchase the transportation corridor from the FWS. AR 5105-17. The application contains a two-page letter stating that JPPHA meets the requirements of the Rocky Flats Act; JPPHA’s Certificate of Organization; excerpts from the CCP/EIS stating that the transfer of the corridor will not significantly impact the Refuge; JPPHA Board resolutions concerning the project; a map of the proposed road from the RTP; and a Denver Post newspaper article about the proposed parkway. AR 5105-17. The JPPHA Board resolutions list mitigation strategies identified in the CCP/EIS and state that they are “acceptable to the Authority and will be required of those designing, constructing, maintaining and operating the Jefferson Parkway.” AR 5114. JPPHA’s application to the FWS does not contain the details regarding the parkway’s scope, funding, impacts, and design that JPPHA included in its application to DRCOG.

In 2011, having received applications from both Golden and JPPHA, the FWS issued an EA to address three main questions: (1) whether the FWS should expand the Refuge boundary; (2) whether the FWS should exchange the transportation corridor for land and mineral rights either adjacent to the Refuge or located elsewhere in Colorado; and, if yes to both questions, (3) whether exchanging the transportation corridor for parts of Section 16 and mineral rights on DOE-retained land would have a significant environmental impact. AR 15599. To answer these questions, the EA considers four alternatives: (1) completing a direct sale of the transportation 'corridor without changing the Refuge boundaries (which the FWS selected as the no action alternative); (2) exchanging the transportation corridor for land adjacent to the Refuge and mineral rights (which the FWS selected as the preferred alternative); (3) exchanging the corridor for land elsewhere in Colorado; and (4) exchanging the transportation corridor for land both adjacent to the Refuge and elsewhere in Colorado. AR 15605-613. The EA briefly discusses several alternatives that the FWS had considered but eliminated, namely, returning management authority over the corridor to DOE; retaining the corridor; disallowing transportation improvements on Indiana Street; expanding the boundary of the Refuge and selling the corridor directly; and retaining a limited interest in the transportation corridor. AR 15613-615. The EA explains that the FWS rejected the option of retaining the corridor because doing so would be “contrary to congressional intent.” AR at 15613.

Referring to the 2004 CCP/EIS, the EA states that the FWS has already conducted a “full NEPA review, which culminated in an EIS” that includes “an analysis of the impacts from potential transportation improvements along Indiana Street.” AR at 15601. The EA farther explains that, based upon the 2004 analysis, the FWS has concluded that a “transfer up to the statutory 800-foot width would not adversely affect the management of the refuge, and that the analysis satisfied its NEPA requirement relating to the mandated land disposal.” AR at 15601-602. The EA relies on the CCP/EIS in concluding that the proposed land exchange will not significantly impact the Refuge. See, e.g., AR 15646 (stating that the CCP/EIS determined that highway runoff may affect aquatic vegetation but would not significantly impact Refuge management); AR 15647 (the CCP/EIS “estimated that loss of the entire 300-foot transportation corridor would remove 8.5 acres of Preble’s meadow jumping mouse habitat”); AR 15648 (“CCP/EIS identified several methods of mitigating these disturbances for both construction (e.g., light positioning) and traffic (e.g., vegetation sound barriers).”). The EA states that, although improvements to the corridor are foreseeable, the “form and scope” of such improvements are not. AR 15668. The EA compensates for this uncertainty by basing its analysis of the cumulative impacts on the “worst-case scenario of construction of a highway for motorized vehicles accompanied by a bicycle and pedestrian path along the same route.” AR 15668.

On December 2, 2011, the FWS issued a FONSI stating that the land exchange was selected because it

best meets the Service’s mission goal to sustain fish and wildlife populations and to conserve a network of lands that provide their habitats, while meeting congressional intent to conserve open space along Colorado’s Front Range, and it most directly offsets any negative effects of the loss of the transportation corridor on the Refuge.

AR 15024. The FONSI briefly lists nine factors in support of its finding and concludes that “expanding Rocky Flats NWR and conducting the proposed land exchange is not a major federal action that would significantly affect the quality of the human environment within the meaning of Section 102(2)(C) of NEPA.” AR 15027.

b. Tiering the EA to the CCP/EIS

The FWS asserts that it met NEPA’s requirements by conducting a two-part analysis. First, it argues that it issued a broad, programmatic CCP/EIS in 2004 that considered the impact of transferring the transportation corridor and found that the transfer would not significantly impact the Refuge. Docket No. 95 at 46. Upon receiving two proposals for the corridor, the FWS issued its EA in 2011, containing an analysis focused specifically on the impacts of several proposed transactions. AR 15596-597. The FWS argues that the narrower EA is “tiered” to the broader CCP/EIS and that together these two documents constitute sufficient NEPA review. Docket No. 95 at 46-8.

Under NEPA, “tiering” refers to the “coverage of general matters in broader environmental impact statements” and the subsequent preparation of narrower statements that “incorp