UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THE VILLAGE OF LOGAN, Plaintiff - Appellant,

v. UNITED STATES DEPARTMENT OF INTERIOR; THE HO NORABLE SALLY JEWELL, in her capacity as Secretary, Department of the Interior; THE BUREAU OF RECLAMATION; THE HONORABLE MICHAEL L. CONNOR, in his capacity as Commissioner, The Bureau of Reclamation; EASTERN NEW MEXICO WATER UTITLITY AUTHORITY, Defendants - Appellees. No. 13-2082 (D.C. No. 1:12-CV-00401-WJ-LFG) (D. N.M.)

ORDER AND JUDGMENT *

Before HARTZ , EBEL , and PHILLIPS , Circuit Judges.

Plaintiff-Appellant the Village of Logan (“ Logan”) appeals from the district court’s order denying Logan a preliminary injunc tion to prevent Defendants-Appellees the

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 25, 2014

Elisabeth A. Shumaker Clerk of Court2 Department of Interior, the Bureau of Recl amation, and the East ern New Mexico Water Utility Authority as well as a number of individual defendants (collec tively “Defendants”) from undertaking any work on the Eastern New Mexico Rura l Water System Project until they prepare an Environmental Impact St atement in compliance with the National Environmental Policy Act of 1969. The district court refused to enjoin the Project preliminarily not only because th e court found that delaying th e Project would be contrary to the public interest, but also because Logan had failed to establish that it was likely to succeed on the merits of its underlying claims . Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we AFFIRM.

BACKGROUND

The Canadian River Compact (“Compact”) allocates water from the Canadian River watershed to the states of New Mexico, Oklaho ma, and Texas. Following its ratification, New Mexico constructed the Ute Reservoir (“Re servoir”) on the Canadian River just west of Logan as a way to store the water New Mexi co had been allocated under the Compact. Although the Reservoir was initia lly intended as a source of water for municipal and industrial use—and more specifically, as a way to replace the declining ground water supply in eastern New Mexico—it has since become a popular destination for outdoor recreation activities such as boating, fishing, and camping. The Re servoir is owned and operated by the New Mexico Interstate Stre am Commission (“ISC”). While the Compact regulates the amount of water that can be st ored in the Reservoir, it is the ISC that3 determines how much water can be rem oved from the Reservoir. That authority, however, is constrained by a 1962 Memorand um of Agreement (“Agreement”), entered into by the ISC and a predece ssor of the New Mexico Depa rtment of Game and Fish (“NMDGF”), establishing a minimum reservoir el evation of 3,741.6 feet. Also referred to as the “fisheries minimum pool,” this water el evation must be maintained at all times, meaning that the ISC is required to stop a ll withdrawals from the Reservoir once that elevation is reached. The Agreement wa s most recently renewed in 2010. Following a sustainable yield analysis, th e ISC determined th at up to 24,000 acre-feet per year of water (A FY) can safely be removed fro m the Reservoir. Since 1997, the entire yield of the Reservoir has been contracted to the Ute Reservoir Water Commission (“UWC”), which has the option to pu rchase up to 24,000 AFY for beneficial consumptive uses, including municipal and industr ial, sanitation, irrigation, and recreation

uses. The UWC is a twelve-member consor tium that includes the Eastern New Mexico Water Utility Authority (“ENMWUA”) member s (the municipalities of Clovis, Elida, Grady, Melrose, Portales, and Texico; and Curry and Roosevelt counties) and the UWC Quay County entities (Logan, City of Tucumcari, and Quay County). Under the most-current iteration of the contract, 16,4 50 AFY is allocated to the ENMWUA members and the remaining 7,550 AFY is allocated to the UWC Quay County entities. While the UWC is responsible for funding and constr ucting any water diversion or conveyance facilities, the contract makes clear that all diversion projects, and any water withdrawals4 themselves, must be approved by the ISC. To this end, th e contract provides that the UWC’s right to purchase water is subject to th e availability of water, and that the ISC is solely responsible for determining whether wate r is available. Should the Reservoir drop below the 3,741.6-foot minimu m elevation set by the Agreemen t, for instance, the ISC can

determine that water is not available and discontinue deliveries under the contract. The Eastern New Mexico Rural Water System Project (“Project”) was conceived as a way to provide the ENMWUA members and Canon Air Force Base (collectively the “Participating Communities”) wi th a long-term sustainabl e municipal water supply, including drinking water. At this time, th e Participating Communities’ sole source of water is ground water from the Ogallala aquife r, which underlies portions of New Mexico, Texas, Oklahoma, and Kansas and serves many other water dive rsion purposes—the largest of which is irrigated agriculture. Because historical demand has significantly exceeded aquifer recharge, the net result has been declining water levels throughout the Ogallala aquifer. These declining water le vels have complicated the Participating Communities’ ability to provide a reliable wa ter supply in two ways, one quantitative and one qualitative. As the water levels in th e acquifer have droppe d, so too have well production rates, meaning that th ere is simply less water to be had. Equally troublesome, however, is that water quality is also diminishi ng, as aquifer declines have contributed to

increased concentrations of co nstituents such as total dissol ved solids, arsenic, fluoride, iron, radon, and volatile organic compounds in the ground water. Indeed, four of the5 Participating Communities are already experi encing difficulty complying with state and federal drinking water standards. The goal of the Project is to construct a pipeline and the associated intake, pumping, treatment, storage, and delivery facilities necessary to deliver 16,450 AFY from the Reservoir to the Participating Communities in order to meet a portion of their current and future water supply needs. Although the Proj ect’s intake structure has been designed, at the request of New Mexico state legislators, to allow for up to 24,000 AFY in withdrawals

in order to accommodate the UW C Quay County entities in the event that they exercise their option to purchase the 7,550 AFY that has been separately allocated to them, delivery systems for such withdrawals are not planned or permitted at this time and are not part of the Project. Indeed, other than the intake structure, the remaini ng components of the Project (including all pipes, booster pumps, and water treatment facilities) have been designed and funded to deliver only a maximu m of 16,450 AFY from the Reservoir to the Participating Communities. In other words, if at some point the UWC Quay County entities elect to purchase water that has been a llocated to them, they will need to design, fund, and construct their own delivery project( s) in order to withdraw any water from the Reservoir using the Project’s intake structure. When Congress authori zed the Bureau of Reclamati on (“Reclamation”) to provide

financial and technical assistance to the Pr oject, it triggered the National Environmental Policy Act (“NEPA”), requiring Reclamation to prepare an Environmental Assessment6 (“EA”) studying the Project’s environmenta l impacts. Reclamation began the NEPA scoping process in September 2007, when it asked members of the public and various government officials—including Logan’s V illage Administrator—to help Reclamation identify, among other things, “[t]he important issues, resources concerns, and possible impacts to be addressed in the EA.” Aplt. App. at 599. Neither the Village Administrator nor any other Logan representa tive responded to Reclamation’s request. Reclamation continued to scope the Project by holding a series of public meetings in Logan, Clovis, and Portales, where it once ag ain sought and received input on which issues

should be evaluated in the EA. Although Logan’s Villa ge Administrator was present at the Logan meeting, neither he nor any other Logan represen tative offered any comments or made any objections to the Project at that time. On January 13, 2010, after consideri ng the issues raised during scoping,

Reclamation issued a draft EA and a Findi ng of No Significant Impact (“FONSI”), explaining that Reclamation di d not intend to prep are an Environmental Impact Statement (“EIS”) for the Project. As relevant here, th e draft EA defined the proposed federal action as providing funding to construct a system to deliver 16,450 AFY of water from the Reservoir to the Participating Communities. Th e draft EA also made clear that the FONSI was based on, among other things, the most recent ten-year bathymetric survey (from 2002) and on forty-one years of historic hydrologic data (from 1966 to 2007). Reclamation’s preliminary findings were made available at public libraries and over the7 internet, and Reclamation prov ided a public comment period on the draft EA and FONSI until February 19, 2010. In or der to facilitate public comme nt, Reclamation held another public meeting in Logan on January 19, 2010. Logan’s V illage Administrator attended the meeting, but again, neither he nor anyone else offered any comments on the draft EA or FONSI. Indeed, Reclamation received but two comments throughout the public comment period, one from NMDGF on poten tial effects to fishery res ources and one from Western Resource Advocates on possible renewable ener gy sources for the Project. On January 28, 2011, after addressing both of these comments, Reclamati on issued a final EA finding “that there [will] be no significant impacts asso ciated with the proposed action” and, thus, that “no environmental impact statement will be prepared.” Aplt. App. at 72. More than a year later, de spite making no comments or objections to the Project at any time during the administrative process, Logan filed suit in federal district court seeking to enjoin the Project. Asserting that it was “inexplicabl[e] . . . that the massive construction project ‘would no t result in any significant impacts to the environment,’” Logan alleged that Defendants had violated NEPA by failing “t o take a hard look at the actual and potential adverse environmental c onsequences of the proposed Ute Lake Diversion Project.” First Amended Compla int, Doc. 9 at. 2-3. Logan sought a declaratory judgment holding that Defe ndants had committed eight distinct NEPA violations, as well as a mandatory injuncti on preventing Defendants from undertaking any work on the Project until after they completed a full EIS.8 Shortly thereafter, Logan moved the dist rict court to enter the preliminary injunction at issue here, which the district co urt denied. In a thorough and well-reasoned opinion, the district court held not only that Logan had failed to dem onstrate a likelihood of success on the merits, but also th at the public interest wei ghed in favor of denying the preliminary injunction. While acknowledging that Logan has an important interest in continued recreation at the Reservoir, the court recognized that “that in terest must defer to the need for potable drinking water and for su pport for municipal and irrigation purposes.” Doc. 56 at 32. Logan filed a motion for rec onsideration, which the district court also denied. Then, after timely appealing the denial of its preliminary injunction motion, Logan raised its prospect of injunctive relief for a third and fourth time when it requested

both the district court and this court to en join the Project pending appeal. Applying essentially the same fo ur-factor test that governs here, bo th courts again rejected Logan’s claim that an injunction was warranted. See Do c. 85 at 5; Tenth Circuit Order, July 2, 2013 at 2. We now take up the district c ourt’s denial of Logan’ s underlying preliminary injunction motion.

DISCUSSION

This court reviews a district court’s deci sion to deny a preliminary injunction under

a deferential abuse of discretion standard. See Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249, 1262 (10t h Cir. 2005). Particular deference is owed to the district court’s “balancing of conflictin g [preliminary injunction] fact ors,” Water Keeper Alliance9 v. U.S. Dep’t of Defense, 27 1 F.3d 21, 30 (1st Cir. 2001), and the “court’s decision will not be disturbed unless [this] court has a definite and firm convic tion that the lower court made a clear error of judgment or exceeded th e bounds of permissible choice in the

circumstances.” Somerlott v. Cherokee Nati on Distributors, Inc., 686 F.3d 1144, 1152 (10th Cir. 2012) (internal quotation marks omitte d). Reviewing the district court’s factual findings for clear error and legal determinations de novo, our task is merely to determine

whether the district court made “an arbitr ary, capricious, whimsical, or manifestly unreasonable judgment.” Wyomi ng v. U.S. Dep't of Agric. , 661 F.3d 1209, 1227 (10th Cir. 2011). Finding nothing of th e sort here, we now affirm th e district court’s denial of Logan’s preliminary injunction motion.

I. The district court did not abuse it s discretion in denying Logan a preliminary injunction “A preliminary injunction is an ‘extraor dinary and drastic remedy.’” Munaf v. Geren, 553 U.S. 674, 689 (2008). “In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Re s. Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal quotation marks omitted). A prelim inary injunction is “never awarded as of right,” id., but only when “the movant’s right to relief is ‘clear and unequivocal.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). In order to obtain a preliminary injunction, therefore, a plaintiff mu st establish “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,10 that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. “‘[C]ourts of equity should pay particular regard for the public consequences in employing th e extraordinary remedy of inju nction,’” id. at 24, and a plaintiff’s failure to prove a ny one of the four preliminary injunction factors renders its request for injunctive relief unwarranted. See id. at 23-24; accord Sierra Club, Inc. v. Bostick, 539 F. App'x 885, 888-89 (10th Cir. 2013) (unpub lished) (“A party seeking a preliminary injunction must prove that all four of the equitable factors weigh in its favor.”). As we explain herein, a preliminary injunction would be particularly inappropriate in this case because Logan has not estab lished that any of the four factors weigh in its favor.

a. Failing to enjoin the Project will not cause Logan to suffer irreparable harm In order to receive a preliminary injunctio n, the moving party mu st establish that it will suffer irreparable harm without the prelim inary injunction—that is, that failing to grant the injunction will cause plaintiff to suffe r an injury that is not “merely serious or substantial” but “certain, great, actual and not theoretical.” Heideman , 348 F.3d at 1189 (internal quotation marks om itted). Logan asserts that it meets this prong of the preliminary injunction test because failing to enjoin the Project will allegedly condone “patent NEPA violations” and result in “actu al, imminent harm . . . including loss of revenue, aesthetic impairment, declining prop erty values and business devaluation, and degradation of the fisheries population,” Aplt. B. at 52-53. However, the injuries that Logan alleges as support for that assertion ar e inadequate to justif y enjoining the Project11 because Logan has not shown the asserted damages to be certain, great, actual and not

theoretical. Nor can Logan make the irreparable harm s howing by pointing to wh at it refers to as “the presumption of harm conferred . . . as a result of the patent NEPA violations.” Aplt.

B. at 52. While it is true “that harm to th e environment may be presumed when an agency fails to comply with the requi red NEPA procedure,” Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir. 2002), that presumption only applies in cases where NEPA vi olations are likely to have occurred, see id. at 11 5 n. 6, and as we explain be low, Logan has not made that showing here. But even if it had, Davis also makes clear that the NEPA presumption does not absolve a plaintiff from ha ving to “make a specific sh owing that the environmental harm results in irreparable inju ry to their specific environmen tal interests,” id. And here, the only specific interests to which Logan points are “aesthetic impairment” and “degradation of the fisheries p opulation,” Aplt. B. at 52-53—ne ither of which is sufficient to warrant injunctive relief under the circumstances. Although we do not doubt th at causing aesthetic harm to the environment or degrading the fisheries population could, in some situations, result in irreparable harm, Valley Cmty. Preservation Comm’n v. Mineta , 373 F.3d 1078, 1086 (10th Cir. 2004), a preliminary injunction is warranted only if “the injury comp lained of is of such imminence that there is a clear and pres ent need for equitable relief.” Heideman, 348 F.3d at 1189 (internal quotation marks omitted). Accord ing to Logan’s own ad missions, however, no12 such need exists in this case. It is not necessary, or for that matter possible, to enjoin the underwater blasting that Loga n contends degraded the Rese rvoir’s fisheries population because that blasting is now complete, see ENMWUA B. at 9, a nd it should go without saying that any harms alle gedly resulting from past de tonation activities cannot be relieved, let alone prevented, by enjoining th e Project at this point. After all, “[t]he purpose of a preliminary injunction is not to re medy past harm but to protect plaintiffs from irreparable injury that will sure ly result without thei r issuance.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). Logan’s “aesthetic impairment” allegation is similarly inadequate to meet the irreparable harm showing, but for essentia lly the opposite reas on: it is simply too speculative to warrant enjoining the Project at this time. For one thing, Logan makes no attempt to appraise this court of any evid ence showing what aesthe tic damage will occur, where it will occur, how it will occur, or when it will occur— it merely posits that such harm will result. Such ipse dixit, however, is an insufficient basi s to enjoin a project which, as we explain in the next section, is vital to the public interest. See Schrier, 427 F.3d at 1267. Further, Logan freely admits that the Project will not be completed and operational “for at least a decade.” Aplt. B. at 54. Despite Logan’s protestations to the contrary, therefore, the harms that might potentially result fro m any far-in-the-future water

withdrawals are not “of such imminence that th ere is a clear and present need for equitable relief.” Heideman, 348 F.3d at 1189 (int ernal quotation marks omitted, emphasis in13 original).

b. The injuries that Defendants wo uld suffer under an injunction outweigh the threatened injuries to Logan Logan has also failed to esta blish that “the balance of equities tips in [its] favor,” Winter, 555 U.S. at 20—that is, that the in juries it will suffer in the absence of an injunction outweigh the injuries that Defe ndants will suffer under an injunction. See Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Ci r. 2012). We have already observed that Logan has failed to make an ad equate showing that it will suffe r future damages that could be remedied by an injunction at this state in the project. On the other side of the equation,

Defendants have shown that th ey would suffer immediate and significant harm in the form of construction related delays if an injunc tion issues now stopping this project. The economic cost alone of stopping construction ca nnot easily be overlooked—one estimate puts the probable monthly cost of delaying the Project at $745,592, see Doc. 85 at 4. In light of the fact federal funds for the Project are capped, and given th e propensity of trials to drag on in the federal system, enjoining the Project until after trial would impose a

considerable financial burden on the ENMWUA. See, e.g., Wilderne ss Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1231 (10th Cir. 2008); accord Amoco Prod. Co. v.

Vill. of Gambell , 480 U.S. 531, 545 (1987) Perhaps more worrisome, though, is that stopping construction until after trial would also extend the co mpletion date of an already complex and time-consuming Project. Althou gh Logan contends that the Project’s ten-year timeline renders any injunction-crea ted delays inconsequential, we disagree:14 given the real need for potable drinking wate r in eastern New Mexico, the fact that the Project will take years to build is all the more reason to keep its construction on pace. See Valley Cmty. Pres. Comm’n, 373 F.3d at 1087 (“[W]e are dealing with a partially-completed project, and as such, the public interest in favor of continuing the project is much stronger.”).

c. Enjoining the Project would be co ntrary to the pu blic interest Perhaps the greatest reason to deny Logan a preliminary injunction is that enjoining the Project would be contrary to the public inte rest. See Winter, 555 U.S. at 23 (“A proper consideration of [the public interest fact or] alone requires denial of the requested injunctive relief.”). As outlined above, the Participating Co mmunities currently rely on ground water from the Ogallala aquifer for th eir sole source of water, and with water demand exceeding aquifer recharge, the long-term viability of that aquifer is being called into question. These dropping water le vels have decreased well production rates throughout the Participating Co mmunities, forcing them to bu ild new wells or extend their existing wells just to find wa ter. In some of the Partic ipating Communities, moreover, drilling new wells also comes with added cost of buildi ng additional water treatment infrastructure, as declining water levels have hindered water quality to such an extent that these communities are having tr ouble complying with state and federal drinking water standards. As the district court recognized, in short, the citizens of eastern New Mexico

have a vital need for an alte rnative water source that can su pply “potable drinking water15 and . . . support for municipal and irrigation pu rposes,” Doc. 56 at 32. Logan again makes much of the fact that the Project likely cannot fill that need for years to come, but as just discussed, that counsels against delaying the Project any further at this point.

d. Logan is unlikely to succeed on the merits of its claims The district court denied Logan’s prelim inary injunction motion primarily because it determined that Logan had not shown that it was likely to succeed on the merits of its underlying claims. See Doc. 56 at 29. As outlined on appeal, Loga n’s underlying challenges to the Project are as follows: 1) NE PA required the preparation of a full EIS, rather than the less detailed EA, to have been pr epared for the Project, see Aplt. B. at 29; 2) the EA improperly segmented the Project by defi ning it as an action to withdraw 16,450 AFY, not 24,000 AFY, see id. at 31; 3) the EA failed to consider the “direct”

socioeconomic effects of withdr awing 24,000 AFY from the Reservoir, see id. at 39; 4) the EA relied on stale data when concluding that the Project would not have a significant impact on the sustainability of the Reservoir, s ee id. at 39; 5) the EA failed to address the environmental impacts of the controlled blasti ng that was used during the construction of the Project’s intake structure, see id. at 24. While the foregoing analysis makes it unnecessary for us to consider Logan’s lik elihood of success on these claims—because Logan has not met any of the other three indi spensable preliminary injunction factors to this point—we have the authority to do so nonetheless, see Winter, 555 U.S. at 31, and16 believe it is appropriate to exercise that au thority here given Logan’s abject failure to participate in the administrative process. 1 “Persons challenging an agen cy’s compliance with NEPA must ‘structure their participation so that it . . . alerts the agen cy to the [parties’] position and contentions,’ in order to allow the agency to gi ve the issue meaningful consider ation.” Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004) (quo ting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc. , 435 U.S. 519, 553 (1978)); a ccord New Mexico Envtl. Imp. Div. v. Thomas, 789 F. 2d 825, 835-36 (10th Ci r. 1986) (“If EID wish ed that the EPA consider a different formula which required EPA to study other information, it had a responsibility to place such information in the record.”). Unless the issue with the proposed action is “so obvious that there is no need for a commentator to point [it] out,” or some other extraordinary extenuating circumst ance exists, failing to raise an issue during

1 The parties disagree about what exactly Logan must show in order to meet the merits prong of the preliminary injunction test. Prio r to the Supreme Court’s decision in Winter, this court imposed two different tests depend ing on the circumstances of the case: in the run-of-the-mill case, we required a plaintiff to show “a substa ntial likelihood of success on the merits,” Wilderness Work shop, 531 F.3d at 1224 (emphasis added), but if a plaintiff could establish that the other three preliminary injunction factors “tip strongly in his or her favor,” we said the plaintiff needed only to show “questi ons going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigati on,” Valley Cmty. Pres. Comm’n, 373 F.3d at 1084. There is now a question whether either test survived Winter, where the Court stated that to meet the merits prong, a plaintiff needed to show that he was “likely to succeed on the merits,” 555 U.S. at 20. But we need no t resolve that question here because Logan has shown neither that the other thre e factors tip strongly in its fa vor nor that it is likely, let alone substantially likely, to succeed on the merits.17 the administrative proceedings precludes a plai ntiff from later raising that objection for the

first time in court. Pub. Citiz en, 541 U.S. at 764-65. Simply put, in other words, courts will not entertain any NEPA challenge that could reasonably have been but was not presented to the agency during the administrative proce ss. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 7 85 (10th Cir. 2006); accord Am. Frozen Food Inst. v. Train, 539 F.2d 107, 134 (D.C. Cir. 19 76). (“What the industry failed to present to the Administrator during rule-making procedur es when specifically asked to comment cannot now be urged [as] a basis for invalidati on [of the rule].”). “The policy behind such a rule, i.e., refusal to consider issues not presented to the ag ency, is sound, for we may not substitute our judgment for that of the agency on matters wher e the agency has not had an opportunity to make a factual record or apply its expertis e.” Thomas, 789 F.2d at 835. Applying this well-settled rule to the circ umstances presented here, we must reject as waived the majority of Logan’s challenges to the Project. Although Logan now asserts that the Project requires a full EIS rather th an a mere EA, the draft EA and FONSI made clear that no EIS was going to be prepared for the Project. See Aplt. App. at 72. By not objecting to the FONSI during the administrative process, Logan forfeite d its right to raise that objection for the first time in court. Se e Silverton Snowmobile Club, 433 F.3d at 785 (finding waiver of the same). Because the draf t EA also made clear that the Project was

defined as an action to deliver up to 16,450 AFY from the Re servoir to the Participating Communities, and Logan never challenged the defined scope of the Project at any time18 during the administrative process, Logan is likewise precluded from now arguing that the Project should have been defi ned and analyzed as a projec t to deliver up to 24,000 AFY from the Reservoir. For similar reasons, mo reover, Logan also forfeited its third challenge to the Project: althoug h Logan now contends that th e EA is deficient because it

labeled as “cumulative” and not “direct” the so cioeconomic effects of withdrawing 24,000 AFY from the Reservoir, the draft EA made clear that its direct impact analysis would be capped at withdrawals up to 16,450 AFY. Foreclosing judicial review of an agency action is no doubt a drastic remedy, but we are convinced it is the appropriate action unde r the circumstances. This is not a case

where the individual challe nging the agency’s co mpliance with the NEPA process was prevented from participating, or was otherwis e unable to participate, in that process. Much to the contrary, Defendants actually involved Logan at every step of the administrative process, including by reques ting its input on the Pr oject by letter and by inviting it to attend multiple public meetings on the Project in Logan itself. Yet, despite receiving that correspondenc e and attending thos e meetings, Logan never made any comments or objections to the Project at any time during the administrative process. Indeed, as Logan’s Village Administrator woul d later admit, “[t]he reason the Village of Logan made no effort to challenge the pr oposed pipeline during the EA process was

because we made a conscious decision to not take any steps to challenge the pipeline.” Aplt. App. at 1030. Logan asserts that that decision was based on its belief that the ISC19 had agreed to raise the minimum fisherie s pool from 3,741.6 feet to 3,765 feet—an agreement that Defendants say never existed— but we fail to see how that understanding could possibly save Logan’s clai ms when “the EA clearly re ferred to the original, lower minimum pool, rather than [Logan’s] preferred, higher level.” Doc. 56 at 6. As the district court recognized, in other words, ju st “[b]ecause Plaintiff believed that lower

minimum would not be enforced does not chan ge Defendants’ analysis of the Project’s impact at that level.” Id. More simply, it matters not why Logan ch ose not to participate in the NEPA process; having consciously made that choice, Logan must now live with it. Once these waiver principles are applied, Logan only asserts two challenges to the EA that are properly before th is court—neither of which is lik ely to succeed on the merits. Although Logan cannot be said to have waived its claim that the EA relied on stale data when concluding that the Proj ect would not have a significan t impact on the sustainability of the Reservoir—because Logan bases that claim on a 2012 study that only became available after the public comment period cl osed—Defendants likewise cannot be faulted for failing to consider a study that was publishe d after the EA was published in 2011. See Am. Mining Congress v. Thomas, 772 F.2d 6 17, 626 (10th Cir. 1985) (“[T]he agency's

action must be reviewed . . . on the evidence a nd proceedings before the agency at the time it acted.”). In any event, moreover, the district court also rejected the factual premise of Logan’s stale data claim, finding “that the ac cumulation projected in the EA matched the

accumulation documented in the 2012 study,” Doc. 56 at 16, and Logan ha s given us no20 reason to adjudge that finding clearly erroneous . All that remains, then, is Logan’s claim that the controlled blasting used to construct th e Project’s intake structure “is a significant impact that was omitted in the EA process a nd one that, in and of itself, compels an EIS analyzing all environmental impacts,” Aplt. B. at 28-29. As we alluded to above, however, requiring Defendants to supplement the EA to study the impacts of controlled

detonation after that controlled detonation ha s already occurred “would be futile.” See Highway J Citizens Grp. v. Mineta, 349 F.3d 93 8, 960 (7th Cir. 2003). For the foregoing reasons, therefore, Logan is unlikely to succeed on the merits of its claims. 2

CONCLUSION Having determined that Logan failed to esta blish that any of the four preliminary injunction factors weigh in its favor, we no w AFFIRM the district court’s denial of Logan’s preliminary injunction motion.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

2 Appellant’s Motion to Supplem ent the Record is denied.