PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ HIGH COUNTRY CONSERVATION ADVOCATES; WILDEARTH GUARDIANS; CENTER FOR BIOLOGICAL DIVERSITY; SIERRA CLUB; WILDERNESS WORKSHOP, Plaintiffs - Appellants,

v. UNITED STATES FOREST SERVICE; UNITED STATES DEPARTMENT OF AGRICULTURE; DANIEL JIRÓN, in his official capacity as Acting Under Secretary of Agriculture for Natural Resources and Environment, U.S. Department of Agriculture; SCOTT ARMENTROUT, in his official capacity as Supervisor of the Grand Mesa Uncompahgre, and Gunnison National Forests; UNITED STATES DEPARTMENT OF INTERIOR; BUREAU OF LAND MANAGEMENT; KATHERINE MACGREGOR, in her official capacity as Deputy Assistant Secretary, Land and Minerals Management, U.S. Department of Interior, Defendants - Appellees, and MOUNTAIN COAL COMPANY, LLC, Intervenor Defendan t - Appellee. No. 18-1374

_________________________________ FILED United States Court of Appeals Tenth Circuit 

### March 2, 2020 Christopher M. Wolpert Clerk of Court2 Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-03025-PAB)

_________________________________ Robin Cooley, Earthjustice, Denver, Colora do (Yuting Chi, Earthjustice, Denver, Colorado, and Nathaniel Shoaff, Sierra Club, Oakland, California, with her on the briefs), for Plaintiffs-Appellants. John Emad Arbab, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Je ffery Bossert Clark, Eric Gran t, John L. Smeltzer, John S. Most, Environment and Natural Resources Di vision, U.S. Department of Justice, Washington, D.C.; Stephen Alexander Vaden, Kenneth Capps, Office of the General Counsel, U.S. Department of Agriculture; a nd Kristen Guerriero, Office of the Solicitor, U.S. Department of the Interior, with hi m on the brief), for Defendants-Appellees. Michael Drysdale, Dorsey & Whitney LLP, Minneapolis, Mi nnesota (Sarah Goldberg, Dorsey & Whitney LLP, Salt Lake City, Utah, with him on the brief), for Intervenor Defendant-Appellee.

_________________________________ Before BRISCOE , KELLY , and LUCERO , Circuit Judges.

_________________________________ LUCERO , Circuit Judge.

_________________________________ This appeal is the latest installment in a long-runni ng dispute concerning road construction and coal leases in National Fo rest lands near the North Fork of the Gunnison River in Colorado. The Colorado Roadless Rule , which the Forest Service adopted in 2012, prohibits road construction in designa ted areas but included an exception for the North Fork Coal Mining Ar ea (the “North Fork Exception”). See Special Areas; Roadless Area Conservati on; Applicability to National Forests in Colorado, 77 Fed. Reg. 39,576, 39,578 (July 3, 2012). In prior litigation, a district court concluded agency decisions violat ed the National Environmental Policy Act3 (“NEPA”) and the Administrative Pr ocedure Act (“APA”), High Country Conservation Advocates v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1181 (D. Colo. 2014) (“High Country I”), and vacated the North Fork Exception, High Country Conservation Advocates v. U.S. Forest Se rv., 67 F. Supp. 3d 1262, 1266-67 (D. Colo. 2014) (“High Country II”). Following these decisions, the Forest Service prepared a Supplemental Final Environmental Impact Statement (“North Fo rk SFEIS”) and readopted the Exception, Roadless Area Conservation; National Forest System Lands in Colorado, 81 Fed. Reg. 91,811 (Dec. 19, 2016). Mountain Coal Company, LLC, submitted lease modification requests in connection with coal leases in the area . In response, the Forest Service and the Bureau of Land Ma nagement (“BLM”) issued a Supplemental Final Environmental Impact Statement (“Leas ing SFEIS”) and approved the requests. In the instant litigation, a coalition of environmental organizations alleges that the agencies violated NEPA and the APA by unreasonably eliminating alternatives from detailed study in the North Fork SFEI S and the Leasing SFEIS. The district court rejected these challenge s. Exercising jurisdiction u nder 28 U.S.C. § 1291, we reverse as to the North Fork SFEIS, holding that the Forest Serv ice violated NEPA by failing to study in detail the “Pilot K nob Alternative” proposed by plaintiffs. Accordingly, we remand to the district c ourt with instructions to vacate the North Fork Exception. With respect to the Leasing SFEIS, we hold NEPA did not require consideration of the “Methane Flari ng Alternative” proposed by plaintiffs.
I4 The North Fork Coal Mining Area includes pa rts of three roadle ss areas: Pilot Knob, Sunset, and Flatirons. The Flatirons and Sunset Roadless Areas are south of the North Fork River and Highway 133. The Pilot Knob Roadle ss Area is separated from the others, lying north of the river and highway. Mountain Coal operates the West Elk Mine, which is the only operating coal mine in th e valley and is located in the Sunset Roadless Area. Th ere is also an idled mine, the Elk Creek Mine, partially located in the Pilot Knob Ro adless Area. Coal producti on at that mine ceased in 2013; as of 2015, its operator was fo cused on final reclamation work. In 2012, after the Forest Service a dopted the Colorado Roadless Rule, BLM approved lease modifications extending Mountain Coal’s leases in the Sunset Roadless Area. Conservation groups file d suit challenging th e Colorado Roadless Rule, the lease modifications, and a relate d exploration plan. The district court concluded that the agencies violated NE PA in analyzing the North Fork Exception and the lease modifications. High Countr y I, 52 F. Supp. 3d at 1181. After additional briefing on remedi es, it severed and vacated th e North Fork Exception and vacated the approval of the le ase modifications. High Co untry II, 67 F. Supp. 3d at
1266-67. The Forest Service initiated a new ru lemaking process to reimplement the Exception. In response to a draft of th e North Fork SFEIS, conservation groups submitted a comment requesting that the Forest Service an alyze an alternative that would prohibit road construction in the Pilo t Knob Roadless Area but permit it in the other two areas. The groups stated th at this alternative—the Pilot Knob5 Alternative—would protect 5000 acres, pe rmit mining on 14,800 acres and make available 128 million short t ons of coal while preser ving a geographically and ecologically distinct roadless area. In the North Fork SFEIS, the Forest Service eliminated the Pilot Knob Alternative from detailed study with the following explanation: This alternative would remove the Pilot Knob Roadless Area, about 5,000 acres (about 25%) of the project area, from the North Fork Coal Mining Area. This alternative was dismisse d from detailed anal ysis because the Colorado Roadless Rule is considering access to coal resources within the North Coal Mining Area [sic] over the long-term based on where recoverable coal resources might occu r. The Rule pr eserves the option of future coal exploration and de velopment by allowing temporary road construction for coal expl oration and coal-related su rface activities. One of the State-specific concerns is th e stability of local economies in the North Fork Valley and recognition of the contribution that the coal industry provides to those communities. Preserving coal exploration and development opportunities in the area is a means of providing community stability. Instead, the Forest Serv ice offered detailed analyses of three options: (A) no action, which would preserve all three areas as roadless; (B) promulgation of the entire North Fork Exception, permitting mining on 19,700 acres and providing access to 172 million short tons of coal; and (C) promulgation of the North Fork Exception excluding “wilderness capable” lands in the Sunset and Flatirons Roadless Areas, which would protect 7100 acres, permit mining on 12,600 acres, and provide access to 95 million short tons of coal. Ultimate ly, the Forest Servi ce adopted Alternative B, reimplementing the entire North Fork Exception. Subsequently, Mountain Coal resubm itted two applications for lease modifications, seeking to add a total of approximately 1720 acres to federal coal6 leases adjacent to the West Elk Mine. Approximately 1700 acres of the area at issue were within the Sunset Roadless Area and covered by the North Fork Exception. In response to the requests, the Forest Servic e and BLM issued a draft of the Leasing SFEIS. Environmental groups requested that the agencies analyze a Methane Flaring Alternative in the final vers ion. Flaring converts methan e, an especially potent greenhouse gas, to carbon dioxi de, a less potent greenhous e gas. Under the Methane Flaring Alternative, Mountain Coal woul d be required to flare methane, thereby mitigating the environmental impact. In th e Leasing SFEIS, the ag encies eliminated the Methane Flaring Altern ative from detailed study, concluding that evaluating methane mitigation measures requires site-specific data and engineering designs unavailable at the leasing stage. With consent from the Forest Service, BLM approved the modifications. In the instant litigation, pl aintiffs challenge the elim ination from detailed study of the Pilot Knob Alterna tive in the North Fork SFEI S and the Methane Flaring Alternative in the Leasing SFEIS. The dist rict court denied them relief, ruling the agency actions under NEPA did not violate the APA. Plaintiffs timely appealed. 1

1 After this appeal was filed, the O ffice of Surface Mining Reclamation and Enforcement (“OSM”) adopted the Leas ing SFEIS and recommended that the Secretary of the Interior approve a mini ng plan modification pr oposed by Mountain Coal. Notice of Record of Decision for the West Elk Mining Pl an Modification, 84 Fed. Reg. 9554, 9556 (Mar. 15, 2019). The Department of the Interior approved the mining plan modification, and the plaintiffs in this case filed a separate lawsuit challenging OSM’s decision. WildEarth Guardians v. Bernhardt, No. 19-CV001920-RBJ 2019 WL 5853870 (D. Colo. N ov. 8, 2019). The district court remanded the decision to OSM and enjoined coal mining pursuant to approval of the mining-plan modification. Id. at *15.7 II Because NEPA does not provide a priv ate right of action, the agencies’ promulgation of the North Fork SFEIS and the Leasing SFEIS are reviewed as final agency actions under the APA. See Wyom ing v. U.S. Dep’t of Agric., 661 F.3d 1209, 1226 (10th Cir. 2011). We review the district court’s decision de novo. Id. Under the APA, we will set aside agen cy action only if it “fails to meet statutory, procedural or constit utional requirements, or . . . is arbitrary, capricious, an abuse of discretion, or otherwise not in acc ordance with law.” N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F. 3d 1277, 1281 (10th Cir. 2001) (quotation omitted). Agency action is arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider, entirely fa iled to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,” or the agency action “i s so implausible that it could not be ascribed to a diffe rence in view or the product of agency expertise.” Motor Vehicle Mf rs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “In performi ng arbitrary and capricious review, we accord agency action a presumption of va lidity; the burden is on the petitioner to demonstrate that the action is arbitrary and capricious.” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793 (1 0th Cir. 2010) (quotations omitted). We will “uphold a decision of less than ideal clar ity if the agency’s path ma y reasonably be discerned,” but will not “supply a reasoned basis for the ag ency’s action that th e agency itself has not given.” State Farm, 463 U.S. at 43 (quotations omitted).8 “NEPA requires federal agencies to pa use before committing resources to a project and consider the likely environmen tal impacts of the preferred course of action as well as reasonable al ternatives.” N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 ( 10th Cir. 2009). The “twi n aims” of NEPA are to require agencies to “consider every significant aspect of the environmental impact of a proposed action” and to facilitate public involvement. Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, In c., 462 U.S. 87, 97 (1983). NE PA creates “a set of actionforcing procedures that require that agen cies take a hard l ook at environmental consequences, and that provi de for broad dissemination of relevant environmental information.” Robertson v. Methow Va lley Citizens Council, 490 U.S. 332, 350 (1989) (quotations and citation omitted). However, it “is strictly a procedural statute” that “does not mandate substantive results.” W yoming, 661 F.3d at 1237. Under NEPA, an agency must include an environmental impact statement (“EIS”) in reports on “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 433 2(C). An EIS must include, inter alia, “alternatives to the propos ed action.” § 4332(C)(iii). As explained in NEPA regulations, an EIS must “[r]igorously expl ore and objectively evaluate all reasonable alternatives, and for alterna tives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a); see also Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir. 2004) (“The existence of a viable but unexamined alternative renders an environmental impact statement in adequate.” (quotation omitted)).9 In reviewing the adequacy of an agency’s analysis of al ternatives in an EIS, we apply a “rule of reason,” determining whet her the “statement contained sufficient discussion of the relevant issues and oppos ing viewpoints to enable the [agency] to take a hard look at the environmental im pacts of the proposed [action] and its alternatives, and to make a reasoned deci sion.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999). This “r easonableness standard applies both to which alternatives the agency discusses and the extent to which it discusses them.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 11 52, 1166 (10th Cir. 2002), as modified on reh’g, 31 9 F.3d 1207 (10th Cir. 2003). “[O]nce an agency estab lishes the objective of the proposed action—which it has considerable discretion to define—the agency need not prov ide a detailed study of alternatives that do not accomplish that pu rpose or objective, as those alternatives are not ‘reasonable.’” Wyom ing, 661 F.3d at 1244 (citations omitted). But agencies may not “define the objectives of a propos ed action so narrowly as to preclude a reasonable consideration of a lternatives.” Id. (quotation and alteration omitted). In short, “NEPA does not require agencies to analyze the environm ental consequences of alternatives it has in go od faith rejected as too remote , speculative, or impractical or ineffective.” Richardson, 565 F.3d at 708 (quotation omitte d). Moreover, “an agency need not consider an alternative unless it is si gnificantly distinguishable from the alternatives already cons idered.” Id. at 708-09. A10 Turning to the North Fork SFEIS, we must determine wh ether the Forest Service reasonably eliminated the Pilot K nob Alternative from detailed study. We judge the reasonableness of the agency act ion against two guide posts: (1) “the agency’s statutory mandate” and (2) the “agency’s objectives for a particular project.” Id. at 709. With respect to the first guidepost, th e Forest Service’s statutory mandate grants it “broad disc retion to regulate th e national forests, including for conservation purposes.” Wyom ing, 661 F.3d at 123 4 (citing 16 U.S.C. § 551). It similarly possesses the aut hority “to manage the national forests for ‘multiple uses,’ including ‘out door recreation, range, timb er, watershed, and wildlife and fish purposes.’” Id. at 1235 (quoting 16 U.S.C. § 52 8). We have little trouble concluding that the Pilot K nob Alternative, which would preserve one roadless area and open two others for coal mining, falls within the Forest Service’s statutory mandate. As to the Forest Service’s objectives fo r the particular project, the North Fork SFEIS states, “the specific purpose and need for reinstating th e North Fork Coal Mining Area exception is to provide manageme nt direction for c onserving about 4.2 million acres of [Colorado ro adless areas] while addressing the state’s interest in not foreclosing opportunities for exploration and development of coal resources in the North Fork Coal Mining Area.” More speci fically, the North Fork SFEIS recognizes the “need . . . to provide for the conser vation and management of roadless area characteristics,” including “sources of dri nking water, important fish and wildlife habitat, semi-primitive or primitive recreation areas . . . and naturally appearing11 landscapes.” It also recogni zes the need to “facilitat[e] exploration and development of coal resources in the North Fork coal mining area.” The specific project purpose thus echoes the Forest Service’s general statutory mandate of balancing multiple possible uses. And the Pilot Knob Alternative would appear to fit within the stated project goals: it provides fo r conservation in one roadle ss area and facilitates the development of coal res ources in two others. However, the Forest Service dismi ssed this alternat ive from detailed consideration “because the Colorado Roadle ss Rule is consider ing access to coal resources within the Nort h [Fork] Coal Mining Area over the long-term based on where recoverable coal resources might occur. ” Its explanation is based solely on the fact that the Pilot Knob A lternative would protect more land and provide access to fewer tons of coal than Alternative B (rein stating the entire Nort h Fork Exception). But that factor is relevant to only one of the agency’s established objectives— providing for long-term co al-exploration and mining opp ortunities. It does not address the Forest Service’s other objec tive—providing management direction for conserving roadless areas in Colorado. Th is one-sided approach conflicts with the agency’s obligation under NEPA to “provide legitimate considera tion to alternatives that fall between the obvious extremes.” Dombeck, 185 F.3d at 1175. Under the agency’s logic, every altern ative except Alternative B c ould have been eliminated from detailed study merely because it forecl oses long-term coal mining opportunities. QED: The Forest Service’s rationa le for eliminati ng the Pilot Knob Alternative is arbitrary. In light of the agency’s st ated objectives, the proffered12 explanation does not establish that the a lternative was reject ed as too remote, speculative, impractical, or in effective. Where the agency omits an alternative but fails to explain why that a lternative is not reasonable, the EIS is inadequate. See Utahns for Better Transp., 305 F.3d at 1170-71. This failure is similar to BLM’s failure in Richardson. In that case, BLM eliminated an alternative that would have cl osed the Otero Mesa to mining, stating it was inconsistent with the project purpose of determining which lands “are suitable for leasing and subsequent de velopment.” 565 F.3d at 710. We explained that the project “purpose does not take development of the Mesa as a foregone conclusion. To the contrary, the question of whether a ny of the lands in th e plan area [we]re ‘suitable’ for fluid minerals developmen t . . . [was] precise ly the question the planning process was intended to address.” Id. at 711 (emphasis omitted). We rejected the argument “that it would be im practical or ineffec tive under multiple-use principles to close the Mesa to development,” holding the agency “was required to include such an alternative in its NEPA analysis, and the failure to do so was arbitrary and capricious.” Id. (quotations omitted). Similarly, the agency’s elimination of an alternative from deta iled study in this case was arbitrary and capricious because its explanation for doing so was inconsistent with its stated
purpose. 2

2 The dissent attempts to distinguish Richardson because in that case, BLM “took oil and gas development of Otero Mesa as a foregone conclusion and should have analyzed an alterna tive that would have precluded development,” whereas the13 In its briefs, the Forest Service asserts that the idled Elk Creek Mine, located in the Pilot Knob Roadless Area, presents distinct l ong-term opportunities for coal access that would be forecl osed by the Pilot Knob Altern ative but not by Alternative C. But this is not the explanation the Fo rest Service gave for eliminating the Pilot Knob Alternative. We “may affirm agency action, if at all, only on the grounds articulated by the agency itself.” Ole nhouse v. Commodity Credit Corp., 42 F.3d 1560, 1565 (10th Cir. 1994). We cannot consider a “post-hoc rationalization” for eliminating an alternative fro m consideration in an EIS. Utahns for Better Transp., 305 F.3d at 1165. Because the North Fork SFEIS does not state that the Pilot Knob Alternative was eliminated from detailed st udy because of the existence of the Elk Creek Mine, we cannot affirm the agency’s decision on that basis. 3

Forest Service in this case did evaluate such an alternative— Alternative A. But Richardson is not limited to cases in which the proposed action would prohibit development. The Forest Service’s consid eration of a no-action alternative in this case does not excuse the unreasonableness of its explanation for excluding the Pilot Knob Alternative fro m detailed study.

3 The dissent would hold th at the inclusion of finding s with respect to the Elk Creek Mine in a different part of the North Fork SFEIS shows that the agency dismissed the Pilot Knob Alte rnative from detailed analys is because of the presence of the Elk Creek Mine. This is inconsiste nt with the administra tive record. In the Forest Service’s explanation of why it el iminated the Pilot Knob Alternative from detailed study, the agency me ntions access to coal “over th e long term,” “future coal exploration and devel opment,” and “the stability of lo cal economies.” It does not mention the Elk Creek Mine or compare the potential of the Elk Creek Mine with the long-term coal mining op portunities foreclosed by Alternative C.14 The dissent adds that the Pilot Knob Alternative, un like Alternative C, would foreclose access to existing fede ral coal leases or private le ases and recove rable coal. But this fact does not render the Pilot K nob Alternative unreasonable. Alternative A—the no-action alternative—would also have foreclosed access to existing federal coal leases, private leases, a nd recoverable coal. But thatdid not prevent the Forest Service from considering it. Further, although Alternative C would not foreclose access to any existing federal coal leases, it would nevertheless prohibit coal mining in part of the Sunset Roadless Area s ubject to a proposed lease modification. The Forest Service also argues that the Pilot Knob Alternative is not significantly distinguish able from Alternative C. 4 We disagree. Alternative C would protect 7100 acres of wilderness, whereas th e Pilot Knob Alternative would protect 4900 acres. That is, the Pilot Knob A lternative would protect 2100 fewer acres— nearly 30% less land. This 2100-acre differ ence represents more than 10% of the entire North Fork Coal Mining Area. The difference in accessible tons of coal is even gr eater. Alternative C would allow access to 95 million short tons of co al, whereas the Pilo t Knob Alternative would allow access to 128 m illion short tons of coal. This represents 33 million short tons, which is approximately 35% more coal than Alternat ive C and 19% of the total amount of coal recoverable in the entire North Fork Coal Mining Area.

4 This, too, is a post-hoc rationalization not mentioned in the agency’s discussion of why it eliminated the Pilot Kn ob Alternative from de tailed study.15 Further, the Pilot Knob Alternative is significantly distinguishable from Alternative C because it would affect entirely separate co al resources. The record indicates that if the North Fork Exception were reimplemen ted, mining would be less likely to occur in the areas protected under the Pilot Knob Altern ative than in the areas protected under Alternative C. Th e Pilot Knob Alternative would foreclose mining on land adjacent to the idle Elk Creek Mine, which has not produced any coal since December 2013. The mine does not a ppear likely to resume production, as its operator has auctioned off mining equipm ent and demolished mining infrastructure within the mine. In contra st, Alternative C would forecl ose mining in the Flatirons and Sunset Roadless Areas adja cent to an active coal mine —the West Elk Mine. The operator of the West Elk Mi ne, moreover, has applied fo r lease modifications that would extend the mine into areas that woul d be protected under Alternative C. In short, the Pilot Knob Alte rnative would foreclose mini ng only if production at the Elk Creek Mine resumed, whereas Alterna tive C would foreclose expansion of coal leases already sought by the ope rator of the West Elk Mine. Moreover, the two alternatives w ould result in signi ficantly different environmental impacts because the Pilot Knob Roadless Area is geographically separate from, and has habitat features dissimilar to, the S unset and Flatirons Roadless Areas. We have recognized, albeit in a different context, that “location, not merely total surface disturbance, affect s” environmental imp acts and that “the location of development greatly influences the likelihood and extent of habitat preservation.” Richardson, 56 5 F.3d at 706, 707. Of th e three roadless areas, only16 the Pilot Knob Roadless Area contains a winter range fo r deer and bald eagles, a severe winter range for el k, and a historic and poten tial future habitat for the Gunnison sage-grouse. See Balt. Gas, 462 U.S. at 97 (NEPA requires agencies to “consider every significant aspect of the environmen tal impact of a proposed action”). 5 In sum, we conclude that the Pilot Knob Alternative a nd Alternative C are significantly distinguishable because they differ in acreage of protected land, amounts of recoverable coal, likelihood of coal mining activity, and environmental impacts. We recognize that agencies mu st engage in line-drawing and are due deference in that exercise. See Wyomi ng, 661 F.3d at 1250. “By necessity, an agency must select a certain number of [alternatives] fo r serious study and eliminate the rest without detailed analysis,” Prairie Band Po ttawatomie Nation v. Fed. Highway Admin., 684 F.3d 1002, 1012 (10th Cir. 2012). Nevertheless, NEPA and the APA require agencies to act reasonably in eliminating altern atives from detailed study. In this case, the Fo rest Service failed to pr ovide a logically coherent explanation for its decision to eliminate the Pilot Knob Alte rnative. That alternative was not “remote, speculative, or impractical or ineffective” as judged against the

5 The dissent correctly notes that some of these ecological features occur in other parts of the state outside of the three roadless areas at issu e in this case. But this is irrelevant; our inqui ry is whether the ecological consequences of the Pilot Knob Alternative would be significantly distinguishable from those of the other alternatives. We therefore consider whether the Pilot Kn ob Roadless Area is ecologically unique with resp ect to the areas protected under the other alternatives, not with respect to the entire state.17 Forest Service’s statutory mandate and th e project goals. Rich ardson, 565 F.3d at 708 (quotation omitted). And it was “s ignificantly distinguishable from the alternatives already considered .” Id. at 708-09. We thus conclude that the Forest Service’s elimination of the Pilot Knob Alternative from detailed study in the North Fork SFEIS was arbitrary and capricious.
B Plaintiffs also challenge the elimination from deta iled study of the Methane Flaring Alternative in the ag encies’ promulgation of the Leasing SFEIS. The Leasing SFEIS’s stated purpose was to “facilitate r ecovery of federal coal resources in an environmentally sound manner.” It provided two bases for the agencies’ decision to eliminate the Methane Flaring Alte rnative from detailed study. First, the Forest Service and BLM incl uded a section on their elimination from detailed study of alterna tives requiring Mountain Coal to use methane-mitigation measures. They noted that assessing a ny potential methane-mitigation measure requires “site-specific explor ation data” and “resultant engineering designs,” which would be part of the mine-permitting pro cess conducted by state agencies, OSM, and the federal Mine Safety and Health Admi nistration (“MSHA”). And the agencies found that the effectiveness of portable methane flares in the lease modification area18 is uncertain because the e ffectiveness of a flare depe nds on a particular methane drainage well’s gas composition, which wa s not available at the leasing stage. 6 Plaintiffs argue that the Forest Se rvice and BLM had sufficient data to evaluate the Methane Flaring Alternative from the existi ng operation at the West Elk Mine and the lease-modifica tions proposal. But they do not offer evidence indicating that the information availabl e at the time was sufficient to analyze the feasibility and environmental impacts of methane flaring w ithout the site-specifi c exploration data and engineering designs deem ed necessary by the agencies . We are mindful that environmental analyses under NEPA must be conducted at “t he earliest possible time.” 40 C.F.R. § 1501.2. Nonetheless, given the plaint iffs’ lack of evidence, we conclude that the elimination of the Meth ane Flaring Alternative was reasonable. Second, the Leasing SFEIS explains th at MSHA approval, wh ich occurs later in the mine-permitting process, is required for any flare-use proposal. It also notes that, at the time it was is sued, MSHA had not approved a ny flaring operations at active coal mines. 7 In response, plaintiffs conte nd that the Forest Service and BLM

6 The Leasing SFEIS states that th e engineering designs would become available during the state and OSM mine-per mitting processes. In reviewing the OSM decision issued after the filing of this appeal, the district court vacated the approval of the mining-plan modification partly because OSM did not rigorously explore and objectively evaluate methane flar ing. WildEarth Guar dians v. Bernhardt, 2019 WL 5853870, at *9-10.

7 After this appeal was filed, Mount ain Coal submitted to MSHA a proposal for a methane flaring system at the active West Elk Mine . WildEarth Guardians v. Bernhardt, 2019 WL 5853870, at *14 n.4. Mountain Coal represents that MSHA has approved the proposed flaring system and that the Assistant Secretary of Land and19 are authorized to condition leases to pr otect the environment and that BLM in particular is required to ensure that coal leases contain provisions “for the safeguarding of the public welfare.” 30 U. S.C. § 187. We agree that the Forest Service and BLM are broadly authorized to create conditions for coal leasing. But they are not the agencies ch arged with approving flaring. Because at th e time they issued the Leasing SFEIS, it was uncertain whether MSHA would approve methane flaring for an active coal mine, we concl ude it was reasonable fo r the Forest Service and BLM to eliminate the Methane Fl aring Alternative from detailed study. 8 Because the Leasing SFEIS contains su fficient discussion of the relevant issues, we are convinced that the agencies took a hard look at the Methane Flaring Alternative. Their eliminati on from detailed study of the alternative was not arbitrary and capricious.

Minerals Management has au thorized it. The Colorado state permitting process for the system, however, is not yet complete . These recent developments are not relevant to our analysis of whether the Leasing SFEIS co mplied with NEPA.

8 When promulgating the North Fork SFEIS earlier in the mine-permitting process, the Forest Service declined to study methane flar ing in detail, stating that “methane flaring is best considered at the leasing stage when there is more information on the specific mi nerals to be developed a nd the lands that would be impacted by a flaring operation.” Plaintiffs contend this statem ent is inconsistent with the agencies’ present pos ition that the leasing stag e is too early to study the Methane Flaring Alternative in detail. Although this factor weighs against concluding that it was reasonable for the ag encies to eliminate the Methane Flaring Alternative, we must address the reasonabl eness of the agencies’ actions based on the reasons provided in the Leasing SFEIS. Furt her, the other reason the Forest Service declined to study methane flaring in detail in the North Fork SFEIS is that MSHA could decide not to allow flar ing, resulting in contradictory agency rules. This reason is consistent with the Leasing SFEIS.20 III With respect to the North Fork SFEIS, plaintiffs s eek vacatur of the North Fork Exception. Mountain Coal contends th at the appropriate remedy is vacatur of the Exception only as applied to the Pilot Knob Roadless Area . “Under the APA, courts ‘shall’ ‘hold unlawful and set aside agency action’ that is found to be arbitrary or capricious. Vacatur of agency action is a common, and often appropriate form of injunctive relief granted by dist rict courts.” WildEarth Gu ardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1239 (10th Cir. 2017) (quoting 5 U.S.C. § 706(2)(A)). We have taken several different steps wh en reversing a district court decision and finding a violation of NEPA. We ha ve: “(1) reversed and remanded without instructions, (2) reversed and remanded with instructions to v acate, and (3) vacated agency decisions.” Id. Th e typical remedy for an EIS in violation of NEPA is remand to the district court with instructions to vacate the agency action. See, e.g., Diné Citizens Against Ruining Our Env’t v. Bernhardt, 923 F.3d 83 1, 859 (10th Cir. 2019). But a court “may partially set as ide a regulation if the invalid portion is severable,” that is, “if th e severed parts operate entirely independently of one another, and the circumstances indicate the agency would have adopted the regulation even without the faulty provision.” Ariz . Pub. Serv. Co. v. U.S. E.P.A., 562 F.3d 1116, 1122 (10th Ci r. 2009) (quotati on omitted). The Colorado Roadless Rule includes a seve rability clause providing that, “[i]f any provision in this subpart [C.F.R. Title 36, Chapter II, Part 294, Subpart D] or its application to any person or to certain ci rcumstances is held to be invalid, the21 remainder of the regulations in this subpart and their appli cation remain in force.” 36 C.F.R. § 294.48(f). The record of decision accompanying the final rules clarifies that “[t]his provision identifies the Department’s intention that, in the event any provision is determined invalid, the re maining portions of the rule would remain in force.” Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 326 0 (Jan. 12, 2001). The North Fork Exception is codified in the sa me subpart as the severability clause. Accordingly, the regulations contemplate vacatur of any pr ovision of the North Fork Exception that is held to be invalid. Mountain Coal urges us to sever and vacate the North Fork Exception only as applied to the Pilot Knob Ro adless Area. We turn to the language of the Exception as promulgated to determine whether it c ontains a severable pr ovision applying only to the Pilot Knob Area. The regulation pe rmits temporary road construction for coalrelated surface activities on “certain lands with Colorado Roadless Areas within the North Fork Coal Mining Area of the Gr and Mesa, Uncompa hgre, and Gunnison National Forests as defined by the North Fork Coal Mining Area displayed on the final Colorado Roadless Areas map.” 36 C.F.R. § 294.43(c)(ix). There is no provision in the Rule that relates only to the Pilot Knob Roadless Area; rather, severing and vacating the North Fork Excep tion as applied only to the Pilot Knob Roadless Area would require rewriting the re gulation. Mountain Coal specifically asks us to add the words “ex cept Pilot Knob” to the regul ation rather than striking any portion of the text. In light of the st ructure of the rule, we conclude that the portion of the North Fork Exception applyi ng to the Pilot Knob Roadless Area is not22 severable from the remainder of the Exception because it does not operate independently. Moreover, the North Fork SFEIS dealt with the North Fork Coal Mining Area as a whole, 9 rather than only with the Pilot Knob Ro adless Area. We conclude that the Forest Service acted arbitrarily and capri ciously in its analysis of the entire North Fork Exception by failing to study in detail the Pilot Knob Altern ative. Under our traditional equitable powers to fashion appropriate relief, which are retained under the APA, 5 U.S.C. § 702, the appropriate re medy is vacatur of th e entire North Fork Exception. IV For the foregoing reasons, we VACATE the district court’s judgment and REMAND the case for entry of an order vacating the North Fork Exception.

9 In High Country II, the district c ourt cited the Colorado Roadless Rule’s severability clause, severe d the North Fork Exception from the remainder of the Rule, and vacated the Exception. 67 F. Supp. 3d at 1266. At issue in this case is the re-promulgation of the North Fork Exception.No. 18-1374, High Country Conservation Advo cates, et al. v. United States Forest Service, et al.

KELLY , Circuit Judge, concurring in part and dissenting in part.

I concur in the court’s decision that NE PA did not require consideration of the methane flaring alternative but respectfully di ssent from the conclusion that U.S. Forest Service was required to consider the Pilot Kn ob alternative in detail. This time around, the Forest Service considered three alternatives in detail and eliminated 12 others from such consideration, including the Pilot Knob alternative. Thos e three alternatives, Alternatives A, B, and C, represented a reas onable range of acreage available for mining, within which the P ilot Knob alternative fell. An agen cy is not required to consider alternatives that do not meet the purposes or obj ectives of the federal action. Biodiversity Conservation All. v. Jiron, 762 F.3d 1036, 1085 (10th Cir. 2014). The categorical prohibition on access to coal in Pi lot Knob, given “the State’s interest in not foreclosing opportunities for exploration and development of coal resources,” III Aplt. App. 266, was a sufficient reason for not cons idering it in greater detail. The “alternatives analysis” need only satisfy a “rule of reason.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162 , 1174 (10th Cir. 1999). This is not a case where the agency defined the objectives in such a manner th at they could only be satisfied by one alternative. Agencies need only briefly discuss their re asons for rejecting a possible alternative. Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1166 (10th Cir. 2002) (quoting 40 C.F.R. § 1502.14(a)).2 The court concludes that the Pilot Knob alternative adva nces the purposes of the action, and that the Forest Service’s expl anation for rejecting it is arbitrary and capricious. According to the court, the rejection “is based solely on the fact that the Pilot Knob Alternative would protect more land and provide access to fewer tons of coal than Alternative B (reinstating the entire North Fork Ex ception),” which it argues is a rationale that could be applied to every other alternative. 1 The court also concludes that because the rejection did not mention the Elk Creek Mine (which is with in Pilot Kn ob), the argument that Alternative C di d not foreclose future access to existing federal coal or private leases constitutes a post-hoc rationalization. Both the Pilot Knob altern ative (5,000 acres) and A lternative C (7,100 acres) removed acreage from coal development in or der to preserve certain roadless areas. Unlike the Pilot Kn ob alternative, however, Alternativ e C did not foreclose future access to existing federal coal leases or privat e leases and recoverable coal. The SFEIS contained a map that identified existing and proposed coal leases and indeed mentioned the Elk Creek Mine, although it did point out that production idled in December 2015, in favor of final reclamation. III Aplt. App. 272, 273 Fig. 3-1; see also IV Gov’t Supp. App. 940 (noting that the operator continued to show interest and another operator could theoretically operate in the future).

1 While simple, this characteri zation is not a reasonable readi ng of the agency’s rationale. The agency did not expressly or tacitly reje ct every alternative because it did not mirror the alternative selected.3 On this record, I disagree with the court’ s conclusion that the agency engaged in a “post-hoc rationalization” regarding the Elk Creek Mine. Th e agency clearly articulated that it excluded the Pilot Knob alternative because it failed to “preserve[] the option of future coal exploration and coal-related surface activities.” III Aplt. App. 270. It then discussed sites where coal mining has taken place and where existing mines sit on federal leases within the affected area, including the El k Creek Mine. Id. at 272. The Pilot Knob alternative foreclosed access to that mine, idled or not, which fits square ly within the agency’s rationale for rejection. The agency was notrequired to explic itly “state that the Pilot Knob Alternative was e liminated from detailed study becau se of the existence of the Elk Creek Mine” in order to allow a court to affirm on those grounds. Rather, its reasoning needed to be “clearl y disclosed in, and sustained by , the record.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994). I believe that standard was met here. The court’s contrary holding risks distorting the administrative record by ignoring obviously relevant facts that were considered but not expressly mentioned in an agency’s brief discussion of its reas ons for eliminating an alternative. I disagree that this case is analogous to N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009), where th e agency took oil and gas development of Otero Mesa as a foregone conclusion and shouldhave analyzed an alternative that would have precluded development. Here, the agency evaluated in detail a no-action alternative (Alternative A) that would have preserved a ll 19,700 acres of the North Fork area as roadless. A no-action alternative that continue s existing development in an area is a “far cry” from an alternative that would prohi bit development entirely. Id. at 711.4 The court is correct that we cannot sust ain the agency’s deci sion on the ground that the Pilot Knob alternativ e was not “significantly distinguishable” from Alternative C. Id. at 708–09. The agency di d not advance this reason for elimination in its SFEIS and we must affirm, “if at all, on grounds articulated by the agency itself.” Utahns for Better Transp., 305 F.3d at 1165. Yet the court’s an alysis of this issue necessarily grafts arbitrary benchmarks onto the rule of reason test and consequently curtails the discretion Congress vested in ag encies through NEPA. The court observes that the Pilot Knob alternative prot ects “nearly 30% less land” and affords access to “35% mo re coal” than Alternative C while affecting “entirely separate coal resources.” The court also ac cepts plaintiffs’ portrayal of the record as establishing that “the two alternatives would result in significantly different environmental impacts because the Pilot Knob Roadless Area is geographically separate from [the other roadless areas] and has dissi milar habitat features.” I doubt that geographic separation of the areas, standing alone, renders the Pilo t Knob alternative significantly distinguishable. Plaintiffs also assert that Pilot Knob is “ecologically unique” because it “contains the only winter range for deerand bald eagles, the only severe winter range for elk, and the only historic and pote ntial future habitat for the imperiled Gunnison sage-grouse.” Aplt Br. at 7. But the portions of the record cited demonstrate that these ecological features exist in other parts of the state, just not in other parts of the areas under consideration. Se e III Aplt. App. 279, 325, 328–39, 331. The record may establish that P ilot Knob is ecologically diffe rent from the other roadless areas, but it falls fall short of establishing th at it is “ecologically unique,” even assuming5 that such a standard would properly factor in to the significantly distinguishable branch of the rule of reason analysis.

The court identifies distinctions between th e alternatives, but it is not at all clear that they are significant enough to trigger NEPA’s statutory mandates. The court does not provide a limiting principle fo r this method of reexamining th e merits of alternatives. Future parties are likely to seize on catch words like “30% less land protected,” “35% more coal made accessible,” and “dissimilar habitat features” for what makes an alternative sufficiently distingu ishable, notwithstanding a lack of grounding in NEPA or its implementing regulations. The court’s opi nion may provide a roadmap for delaying federal action rather than promoting in formed decision-making through careful consideration of reasonable alte rnatives. Perhaps some othe r case may necessitate such line-drawing, but this is not it. Because th is analysis is not necessary to the court’s conclusion, prudence counsels against conducting it. The Colorado Roadless Rule, including the 19,700-acre North Fork Exception, was the product of years of deliberati on, periods of notice and comment, and compromise. Our review of an agency’s decision to elimin ate an alternative must be informed by a “rule of reason and practicality. ” Biodiversity Conservation All. v. Bureau of Land Mgmt., 608 F.3d 709, 714 (10th Cir. 2010). “T he range of reasonable alternatives is not infinite,” Jiron, 762 F. 3d at 1083 (internal quotation and citation omitted), and agencies cannot be expected to consider alte rnatives of finer and finer distinction. See Prairie Band Pottawatomi e Nation v. Fed. Highway Admin., 684 F.3d6 1002, 1012 (10th Cir. 2012) (“By necessity, an agen cy must select a certain number of [alternatives] for serious study and eliminate the rest without detailed analysis.”). This court’s role under NEPA is not to “substitute our judgment” about wh at alternatives are most effective to achieve an action’s purpo se, but only to “determine whether the necessary procedures have been followed.” Assocs. Working for Aurora’s Residential Env’t v. Colo. Dep’t of Transp., 153 F.3d 11 22, 1130 (10th Cir. 19 98). The agency met its mandate here by considering a reasonabl e range of alternatives and “briefly discuss[ing]” its reasons for eliminating others from detailed analysis. 40 C.F.R. § 1502.14(a); see al so 42 U.S.C. § 4332(C). For these reasons, I would affirm the district court’s judgment.