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 Defendant - Appellee. 

No. 18-1374 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 2, 2020

Christopher M. Wolpert 

Clerk of Court
2 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:17-CV-03025-PAB)

_________________________________ 

Robin Cooley, Earthjustice, Denver, Colorado (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. (Jeffery Bossert Clark, Eric Grant, John L. Smeltzer, John S. 

Most, Environment and Natural Resources Division, U.S. Department of Justice, 

Washington, D.C.; Stephen Alexander Vaden, Kenneth Capps, Office of the General 

Counsel, U.S. Department of Agriculture; and Kristen Guerriero, Office of the Solicitor, 

U.S. Department of the Interior, with him on the brief), for Defendants-Appellees. 

Michael Drysdale, Dorsey & Whitney LLP, Minneapolis, Minnesota (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-running dispute concerning road 

construction and coal leases in National Forest 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 designated areas but included an 

exception for the North Fork Coal Mining Area (the “North Fork Exception”). See 

Special Areas; Roadless Area Conservation; 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 violated the National Environmental Policy Act 
3 

(“NEPA”) and the Administrative Procedure 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 Serv., 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 Fork 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 Management (“BLM”) issued a Supplemental 

Final Environmental Impact Statement (“Leasing 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 SFEIS and the Leasing SFEIS. The district 

court rejected these challenges. Exercising jurisdiction under 28 U.S.C. § 1291, we 

reverse as to the North Fork SFEIS, holding that the Forest Service violated NEPA 

by failing to study in detail the “Pilot Knob Alternative” proposed by plaintiffs. 

Accordingly, we remand to the district court with instructions to vacate the North 

Fork Exception. With respect to the Leasing SFEIS, we hold NEPA did not require 

consideration of the “Methane Flaring Alternative” proposed by plaintiffs. 

I
4 

The North Fork Coal Mining Area includes parts of three roadless 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 Roadless 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 the valley and is located in 

the Sunset Roadless Area. There is also an idled mine, the Elk Creek Mine, partially 

located in the Pilot Knob Roadless Area. Coal production at that mine ceased in 

2013; as of 2015, its operator was focused on final reclamation work. 

In 2012, after the Forest Service adopted the Colorado Roadless Rule, BLM 

approved lease modifications extending Mountain Coal’s leases in the Sunset 

Roadless Area. Conservation groups filed suit challenging the Colorado Roadless 

Rule, the lease modifications, and a related exploration plan. The district court 

concluded that the agencies violated NEPA in analyzing the North Fork Exception 

and the lease modifications. High Country I, 52 F. Supp. 3d at 1181. After 

additional briefing on remedies, it severed and vacated the North Fork Exception and 

vacated the approval of the lease modifications. High Country II, 67 F. Supp. 3d at 

1266-67. 

The Forest Service initiated a new rulemaking process to reimplement the 

Exception. In response to a draft of the North Fork SFEIS, conservation groups 

submitted a comment requesting that the Forest Service analyze an alternative that 

would prohibit road construction in the Pilot Knob Roadless Area but permit it in the 

other two areas. The groups stated that this alternative—the Pilot Knob 
5 

Alternative—would protect 5000 acres, permit mining on 14,800 acres and make 

available 128 million short tons of coal while preserving 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 dismissed from detailed analysis 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 occur. The Rule preserves the option 

of future coal exploration and development by allowing temporary road 

construction for coal exploration and coal-related surface activities. One 

of the State-specific concerns is the 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 Service 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. Ultimately, the Forest Service adopted Alternative 

B, reimplementing the entire North Fork Exception. 

Subsequently, Mountain Coal resubmitted two applications for lease 

modifications, seeking to add a total of approximately 1720 acres to federal coal 
6 

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 Service and BLM issued a draft of the Leasing 

SFEIS. Environmental groups requested that the agencies analyze a Methane Flaring 

Alternative in the final version. Flaring converts methane, an especially potent 

greenhouse gas, to carbon dioxide, a less potent greenhouse gas. Under the Methane 

Flaring Alternative, Mountain Coal would be required to flare methane, thereby 

mitigating the environmental impact. In the Leasing SFEIS, the agencies eliminated 

the Methane Flaring Alternative 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, plaintiffs challenge the elimination from detailed study 

of the Pilot Knob Alternative in the North Fork SFEIS and the Methane Flaring 

Alternative in the Leasing SFEIS. The district 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 Office of Surface Mining Reclamation and 

Enforcement (“OSM”) adopted the Leasing SFEIS and recommended that the 

Secretary of the Interior approve a mining plan modification proposed by Mountain 

Coal. Notice of Record of Decision for the West Elk Mining Plan 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. Nov. 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 private 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 Wyoming 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 agency action only if it “fails to meet 

statutory, procedural or constitutional requirements, or . . . is arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance 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 failed 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 “is so implausible 

that it could not be ascribed to a difference in view or the product of agency 

expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983). “In performing arbitrary and capricious review, we 

accord agency action a presumption of validity; 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 (10th Cir. 2010) (quotations omitted). We will “uphold a 

decision of less than ideal clarity if the agency’s path may reasonably be discerned,” 

but will not “supply a reasoned basis for the agency’s action that the agency itself has 

not given.” State Farm, 463 U.S. at 43 (quotations omitted). 
8 

“NEPA requires federal agencies to pause before committing resources to a 

project and consider the likely environmental impacts of the preferred course of 

action as well as reasonable alternatives.” N.M. ex rel. Richardson v. Bureau of 

Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009). The “twin 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, Inc., 462 U.S. 87, 97 (1983). NEPA creates “a set of actionforcing procedures that require that agencies take a hard look at environmental 

consequences, and that provide for broad dissemination of relevant environmental 

information.” Robertson v. Methow Valley 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.” Wyoming, 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. § 4332(C). An EIS must include, inter alia,

“alternatives to the proposed action.” § 4332(C)(iii). As explained in NEPA 

regulations, an EIS must “[r]igorously explore and objectively evaluate all reasonable 

alternatives, and for alternatives 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 inadequate.” (quotation omitted)). 
9 

In reviewing the adequacy of an agency’s analysis of alternatives in an EIS, we 

apply a “rule of reason,” determining whether the “statement contained sufficient 

discussion of the relevant issues and opposing viewpoints to enable the [agency] to 

take a hard look at the environmental impacts of the proposed [action] and its 

alternatives, and to make a reasoned decision.” Colo. Envtl. Coal. v. Dombeck, 185 

F.3d 1162, 1174 (10th Cir. 1999). This “reasonableness 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 1152, 1166 (10th Cir. 

2002), as modified on reh’g, 319 F.3d 1207 (10th Cir. 2003). 

“[O]nce an agency establishes the objective of the proposed action—which it 

has considerable discretion to define—the agency need not provide a detailed study 

of alternatives that do not accomplish that purpose or objective, as those alternatives 

are not ‘reasonable.’” Wyoming, 661 F.3d at 1244 (citations omitted). But agencies 

may not “define the objectives of a proposed action so narrowly as to preclude a 

reasonable consideration of alternatives.” Id. (quotation and alteration omitted). In 

short, “NEPA does not require agencies to analyze the environmental consequences 

of alternatives it has in good faith rejected as too remote, speculative, or impractical 

or ineffective.” Richardson, 565 F.3d at 708 (quotation omitted). Moreover, “an 

agency need not consider an alternative unless it is significantly distinguishable from 

the alternatives already considered.” Id. at 708-09. 

A 
10 

Turning to the North Fork SFEIS, we must determine whether the Forest 

Service reasonably eliminated the Pilot Knob Alternative from detailed study. We 

judge the reasonableness of the agency action against two guideposts: (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, the Forest Service’s 

statutory mandate grants it “broad discretion to regulate the national forests, 

including for conservation purposes.” Wyoming, 661 F.3d at 1234 (citing 16 U.S.C. 

§ 551). It similarly possesses the authority “to manage the national forests for 

‘multiple uses,’ including ‘outdoor recreation, range, timber, watershed, and wildlife 

and fish purposes.’” Id. at 1235 (quoting 16 U.S.C. § 528). We have little trouble 

concluding that the Pilot Knob 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 for the particular project, the North Fork 

SFEIS states, “the specific purpose and need for reinstating the North Fork Coal 

Mining Area exception is to provide management direction for conserving about 4.2 

million acres of [Colorado roadless 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 specifically, the North Fork SFEIS recognizes 

the “need . . . to provide for the conservation and management of roadless area 

characteristics,” including “sources of drinking water, important fish and wildlife 

habitat, semi-primitive or primitive recreation areas . . . and naturally appearing 
11 

landscapes.” It also recognizes 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 for conservation in one roadless area and facilitates the 

development of coal resources in two others. 

However, the Forest Service dismissed this alternative from detailed 

consideration “because the Colorado Roadless Rule is considering access to coal 

resources within the North [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 Alternative would protect more land and provide access to 

fewer tons of coal than Alternative B (reinstating the entire North Fork Exception). 

But that factor is relevant to only one of the agency’s established objectives—

providing for long-term coal-exploration and mining opportunities. It does not 

address the Forest Service’s other objective—providing management direction for 

conserving roadless areas in Colorado. This one-sided approach conflicts with the 

agency’s obligation under NEPA to “provide legitimate consideration to alternatives 

that fall between the obvious extremes.” Dombeck, 185 F.3d at 1175. Under the 

agency’s logic, every alternative except Alternative B could have been eliminated 

from detailed study merely because it forecloses long-term coal mining opportunities. 

QED: The Forest Service’s rationale for eliminating the Pilot Knob 

Alternative is arbitrary. In light of the agency’s stated objectives, the proffered 
12 

explanation does not establish that the alternative was rejected as too remote, 

speculative, impractical, or ineffective. Where the agency omits an alternative but 

fails to explain why that alternative 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 closed the Otero Mesa to mining, stating it 

was inconsistent with the project purpose of determining which lands “are suitable 

for leasing and subsequent development.” 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 any of the lands in the plan area [we]re 

‘suitable’ for fluid minerals development . . . [was] precisely the question the 

planning process was intended to address.” Id. at 711 (emphasis omitted). We 

rejected the argument “that it would be impractical or ineffective 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 detailed 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 alternative that would have precluded development,” whereas the 
13 

In its briefs, the Forest Service asserts that the idled Elk Creek Mine, located 

in the Pilot Knob Roadless Area, presents distinct long-term opportunities for coal 

access that would be foreclosed by the Pilot Knob Alternative but not by Alternative 

C. But this is not the explanation the Forest 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.” Olenhouse v. Commodity Credit Corp., 42 F.3d 

1560, 1565 (10th Cir. 1994). We cannot consider a “post-hoc rationalization” for 

eliminating an alternative from 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 study 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 consideration of a no-action alternative in this 

case does not excuse the unreasonableness of its explanation for excluding the Pilot 

Knob Alternative from detailed study. 

3

 The dissent would hold that the inclusion of findings with respect to the Elk 

Creek Mine in a different part of the North Fork SFEIS shows that the agency 

dismissed the Pilot Knob Alternative from detailed analysis because of the presence 

of the Elk Creek Mine. This is inconsistent with the administrative record. In the 

Forest Service’s explanation of why it eliminated the Pilot Knob Alternative from 

detailed study, the agency mentions access to coal “over the long term,” “future coal 

exploration and development,” and “the stability of local economies.” It does not 

mention the Elk Creek Mine or compare the potential of the Elk Creek Mine with the 

long-term coal mining opportunities foreclosed by Alternative C. 
14 

The dissent adds that the Pilot Knob Alternative, unlike Alternative C, would 

foreclose access to existing federal coal leases or private leases and recoverable coal. 

But this fact does not render the Pilot Knob Alternative unreasonable. Alternative 

A—the no-action alternative—would also have foreclosed access to existing federal 

coal leases, private leases, and recoverable coal. But that did 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 subject to a proposed lease modification. 

The Forest Service also argues that the Pilot Knob Alternative is not 

significantly distinguishable from Alternative C.4

 We disagree. Alternative C would 

protect 7100 acres of wilderness, whereas the Pilot Knob Alternative would protect 

4900 acres. That is, the Pilot Knob Alternative would protect 2100 fewer acres—

nearly 30% less land. This 2100-acre difference represents more than 10% of the 

entire North Fork Coal Mining Area. 

The difference in accessible tons of coal is even greater. Alternative C would 

allow access to 95 million short tons of coal, whereas the Pilot Knob Alternative 

would allow access to 128 million short tons of coal. This represents 33 million 

short tons, which is approximately 35% more coal than Alternative 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 Knob Alternative from detailed study. 
15 

Further, the Pilot Knob Alternative is significantly distinguishable from 

Alternative C because it would affect entirely separate coal resources. The record 

indicates that if the North Fork Exception were reimplemented, mining would be less 

likely to occur in the areas protected under the Pilot Knob Alternative than in the 

areas protected under Alternative C. The 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 appear likely to resume production, as its 

operator has auctioned off mining equipment and demolished mining infrastructure 

within the mine. In contrast, Alternative C would foreclose mining in the Flatirons 

and Sunset Roadless Areas adjacent to an active coal mine—the West Elk Mine. The 

operator of the West Elk Mine, moreover, has applied for lease modifications that 

would extend the mine into areas that would be protected under Alternative C. In 

short, the Pilot Knob Alternative would foreclose mining only if production at the 

Elk Creek Mine resumed, whereas Alternative C would foreclose expansion of coal 

leases already sought by the operator of the West Elk Mine. 

 Moreover, the two alternatives would result in significantly different 

environmental impacts because the Pilot Knob Roadless Area is geographically 

separate from, and has habitat features dissimilar to, the Sunset and Flatirons 

Roadless Areas. We have recognized, albeit in a different context, that “location, not 

merely total surface disturbance, affects” environmental impacts and that “the 

location of development greatly influences the likelihood and extent of habitat 

preservation.” Richardson, 565 F.3d at 706, 707. Of the three roadless areas, only 
16 

the Pilot Knob Roadless Area contains a winter range for deer and bald eagles, a 

severe winter range for elk, and a historic and potential 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 environmental impact of a proposed 

action”).5

 In sum, we conclude that the Pilot Knob Alternative and 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 must engage in line-drawing and are due 

deference in that exercise. See Wyoming, 661 F.3d at 1250. “By necessity, an 

agency must select a certain number of [alternatives] for serious study and eliminate 

the rest without detailed analysis,” Prairie Band Pottawatomie 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 alternatives from detailed 

study. In this case, the Forest Service failed to provide a logically coherent 

explanation for its decision to eliminate the Pilot Knob Alternative. 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 issue in this case. But 

this is irrelevant; our inquiry 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 Knob Roadless Area is 

ecologically unique with respect to the areas protected under the other alternatives, 

not with respect to the entire state. 
17 

Forest Service’s statutory mandate and the project goals. Richardson, 565 F.3d at 

708 (quotation omitted). And it was “significantly 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 detailed study of the Methane 

Flaring Alternative in the agencies’ promulgation of the Leasing SFEIS. The Leasing 

SFEIS’s stated purpose was to “facilitate recovery of federal coal resources in an 

environmentally sound manner.” It provided two bases for the agencies’ decision to 

eliminate the Methane Flaring Alternative from detailed study. 

First, the Forest Service and BLM included a section on their elimination from 

detailed study of alternatives requiring Mountain Coal to use methane-mitigation 

measures. They noted that assessing any potential methane-mitigation measure 

requires “site-specific exploration data” and “resultant engineering designs,” which 

would be part of the mine-permitting process conducted by state agencies, OSM, and 

the federal Mine Safety and Health Administration (“MSHA”). And the agencies 

found that the effectiveness of portable methane flares in the lease modification area 
18 

is uncertain because the effectiveness of a flare depends on a particular methane 

drainage well’s gas composition, which was not available at the leasing stage.6

 

Plaintiffs argue that the Forest Service and BLM had sufficient data to 

evaluate the Methane Flaring Alternative from the existing operation at the West Elk 

Mine and the lease-modifications proposal. But they do not offer evidence indicating 

that the information available at the time was sufficient to analyze the feasibility and 

environmental impacts of methane flaring without the site-specific exploration data 

and engineering designs deemed necessary by the agencies. We are mindful that 

environmental analyses under NEPA must be conducted at “the earliest possible 

time.” 40 C.F.R. § 1501.2. Nonetheless, given the plaintiffs’ lack of evidence, we 

conclude that the elimination of the Methane Flaring Alternative was reasonable. 

Second, the Leasing SFEIS explains that MSHA approval, which occurs later 

in the mine-permitting process, is required for any flare-use proposal. It also notes 

that, at the time it was issued, MSHA had not approved any flaring operations at 

active coal mines.7

 In response, plaintiffs contend that the Forest Service and BLM 

 6

 The Leasing SFEIS states that the engineering designs would become 

available during the state and OSM mine-permitting 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 flaring. WildEarth Guardians v. Bernhardt, 

2019 WL 5853870, at *9-10. 

7

 After this appeal was filed, Mountain 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 and 
19 

are authorized to condition leases to protect 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 charged with approving flaring. Because at the time they 

issued the Leasing SFEIS, it was uncertain whether MSHA would approve methane 

flaring for an active coal mine, we conclude it was reasonable for the Forest Service 

and BLM to eliminate the Methane Flaring Alternative from detailed study.8

Because the Leasing SFEIS contains sufficient discussion of the relevant 

issues, we are convinced that the agencies took a hard look at the Methane Flaring 

Alternative. Their elimination from detailed study of the alternative was not arbitrary 

and capricious. 

 

Minerals Management has authorized 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 complied with NEPA. 

8

 When promulgating the North Fork SFEIS earlier in the mine-permitting 

process, the Forest Service declined to study methane flaring in detail, stating that 

“methane flaring is best considered at the leasing stage when there is more 

information on the specific minerals to be developed and the lands that would be 

impacted by a flaring operation.” Plaintiffs contend this statement is inconsistent 

with the agencies’ present position that the leasing stage is too early to study the 

Methane Flaring Alternative in detail. Although this factor weighs against 

concluding that it was reasonable for the agencies to eliminate the Methane Flaring 

Alternative, we must address the reasonableness of the agencies’ actions based on the 

reasons provided in the Leasing SFEIS. Further, 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 flaring, resulting in contradictory agency rules. This reason 

is consistent with the Leasing SFEIS. 
20 

III

With respect to the North Fork SFEIS, plaintiffs seek vacatur of the North 

Fork Exception. Mountain Coal contends that 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 district courts.” WildEarth Guardians 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 when reversing a district court decision 

and finding a violation of NEPA. We have: “(1) reversed and remanded without 

instructions, (2) reversed and remanded with instructions to vacate, and (3) vacated 

agency decisions.” Id. The 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 831, 859 (10th Cir. 

2019). But a court “may partially set aside a regulation if the invalid portion is 

severable,” that is, “if the 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 Cir. 2009) (quotation omitted). 

The Colorado Roadless Rule includes a severability 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 circumstances is held to be invalid, the 
21 

remainder of the regulations in this subpart and their application 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 remaining portions of the rule would remain in force.” 

Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3260 (Jan. 12, 2001). 

The North Fork Exception is codified in the same subpart as the severability clause. 

Accordingly, the regulations contemplate vacatur of any provision 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 Roadless Area. We turn to the language of the Exception 

as promulgated to determine whether it contains a severable provision applying only 

to the Pilot Knob Area. The regulation permits temporary road construction for coalrelated surface activities on “certain lands with Colorado Roadless Areas within the 

North Fork Coal Mining Area of the Grand Mesa, Uncompahgre, 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 Exception as applied only to the Pilot Knob 

Roadless Area would require rewriting the regulation. Mountain Coal specifically 

asks us to add the words “except Pilot Knob” to the regulation rather than striking 

any portion of the text. In light of the structure of the rule, we conclude that the 

portion of the North Fork Exception applying to the Pilot Knob Roadless Area is not 
22 

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 Roadless Area. We conclude that 

the Forest Service acted arbitrarily and capriciously in its analysis of the entire North 

Fork Exception by failing to study in detail the Pilot Knob Alternative. Under our 

traditional equitable powers to fashion appropriate relief, which are retained under 

the APA, 5 U.S.C. § 702, the appropriate remedy is vacatur of the 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 court cited the Colorado Roadless Rule’s 

severability clause, severed 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 Advocates, 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 NEPA did not require consideration of the 

methane flaring alternative but respectfully dissent from the conclusion that U.S. Forest 

Service was required to consider the Pilot Knob 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. Those three alternatives, 

Alternatives A, B, and C, represented a reasonable range of acreage available for mining, 

within which the Pilot Knob alternative fell. An agency is not required to consider 

alternatives that do not meet the purposes or objectives 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 Pilot 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 considering 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 that they could only be satisfied by one 

alternative. Agencies need only briefly discuss their reasons 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 advances the purposes of the 

action, and that the Forest Service’s explanation 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 Exception),” 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 within Pilot Knob), the 

argument that Alternative C did not foreclose future access to existing federal coal or 

private leases constitutes a post-hoc rationalization. 

Both the Pilot Knob alternative (5,000 acres) and Alternative C (7,100 acres) 

removed acreage from coal development in order to preserve certain roadless areas. 

Unlike the Pilot Knob alternative, however, Alternative C did not foreclose future access 

to existing federal coal leases or private 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 characterization is not a reasonable reading of the agency’s rationale. 

The agency did not expressly or tacitly reject 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. The 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 Elk Creek Mine. Id. at 272. The Pilot Knob 

alternative foreclosed access to that mine, idled or not, which fits squarely within the 

agency’s rationale for rejection. The agency was not required to explicitly “state that the 

Pilot Knob Alternative was eliminated from detailed study because 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 “clearly 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 reasons 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 the agency took oil and gas development of 

Otero Mesa as a foregone conclusion and should have analyzed an alternative that would 

have precluded development. Here, the agency evaluated in detail a no-action alternative 

(Alternative A) that would have preserved all 19,700 acres of the North Fork area as 

roadless. A no-action alternative that continues existing development in an area is a “far 

cry” from an alternative that would prohibit development entirely. Id. at 711. 
4 

The court is correct that we cannot sustain the agency’s decision on the ground 

that the Pilot Knob alternative was not “significantly distinguishable” from Alternative C. 

Id. at 708–09. The agency did 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 analysis of this issue necessarily grafts 

arbitrary benchmarks onto the rule of reason test and consequently curtails the discretion 

Congress vested in agencies through NEPA. 

The court observes that the Pilot Knob alternative protects “nearly 30% less land” 

and affords access to “35% more coal” than Alternative C while affecting “entirely 

separate coal resources.” The court also accepts 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 dissimilar habitat features.” I doubt that 

geographic separation of the areas, standing alone, renders the Pilot Knob alternative 

significantly distinguishable. Plaintiffs also assert that Pilot Knob is “ecologically 

unique” because it “contains the only winter range for deer and bald eagles, the only 

severe winter range for elk, and the only historic and potential 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. See III Aplt. App. 279, 325, 328–39, 331. The 

record may establish that Pilot Knob is ecologically different from the other roadless 

areas, but it falls fall short of establishing that it is “ecologically unique,” even assuming 
5 

that such a standard would properly factor into the significantly distinguishable branch of 

the rule of reason analysis. 

 The court identifies distinctions between the 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 for this method of reexamining the merits of alternatives. 

Future parties are likely to seize on catchwords like “30% less land protected,” “35% 

more coal made accessible,” and “dissimilar habitat features” for what makes an 

alternative sufficiently distinguishable, notwithstanding a lack of grounding in NEPA or 

its implementing regulations. The court’s opinion may provide a roadmap for delaying 

federal action rather than promoting informed decision-making through careful 

consideration of reasonable alternatives. Perhaps some other case may necessitate such 

line-drawing, but this is not it. Because this 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 deliberation, periods of notice and comment, and 

compromise. Our review of an agency’s decision to eliminate 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). “The 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 alternatives of finer and finer 

distinction. See Prairie Band Pottawatomie Nation v. Fed. Highway Admin., 684 F.3d 
6 

1002, 1012 (10th Cir. 2012) (“By necessity, an agency 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 what alternatives are 

most effective to achieve an action’s purpose, 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 1122, 1130 (10th Cir. 1998). The agency met 

its mandate here by considering a reasonable range of alternatives and “briefly 

discuss[ing]” its reasons for eliminating others from detailed analysis. 

40 C.F.R. § 1502.14(a); see also 42 U.S.C. § 4332(C). For these reasons, I would affirm 

the district court’s judgment.