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An agency's failure to prepare an SEIS is reviewed under § 706(1) of the APA, which requires the court to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). To prevail, plaintiffs must show that defendants have refused to prepare an SEIS despite a clear legal duty to do so. . . . An SEIS is required if "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns" or "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c).
WildEarth Guardian and Grand Canyon Trust’s (“WildEarth”) claims all relate to a coal-mining lease in Flat Canyon. As currently pleaded, WildEarth allege that "in issuing the Flat Canyon Lease, Defendants, Sally Jewell in her official capacity, United States Bureau of Land Management (BLM), and United States Forest Service (Service), (collectively "the government") relied on a nearly 15 year old environmental analysis and completely overlooked a number of potentially significant environmental impacts, including new information, that should have been considered in their decision as to whether issuance of the lease was in the public interest." The government argues that the involved agencies "re-examined [the old environmental analysis] and considered its adequacy to support a lease sale." In the end, the agencies "concluded that supplementation of the [earlier environmental analysis] was not required to hold a lease sale or issue a lease." The Service memorialized its decision in a Supplemental Information Report (SIR). And the BLM memorialized its decision in a Determination of NEPA Adequacy (DNA). Besides a few grammatical changes, WildEarth’s amendments to the Complaint mostly seek to change the third cause of action. As currently pleaded, the third cause of action only alleges that the government's issuance of the Flat Canyon lease was arbitrary, capricious, and an abuse of discretion; all properly considered under the APA's § 706(2) judicial review provision. The amendment seeks to "clarify[y] that [the third cause of action] is also brought under 5 U.S.C. § 706(1), which authorizes courts to 'compel agency action unlawfully withheld.'" Plaintiffs also seek a complementary addition to the prayer for relief: "Order Federal Defendants to prepare a Supplemental Environmental Impact Statement pursuant to NEPA." The government resists these amendments first because Supreme Court precedent requires courts to consider an agency's decision to supplement an environmental analysis only under the 706(2) arbitrary and capricious standard. And second, the amendments are resisted because the record clearly indicates that the agencies "did in fact assess whether supplementation is required," thus rendering moot § 706(1) review
Should the motion to amend the Third Claim for Relief to include 5 U.S.C. § 706(1) as a basis for judicial review be granted?
The Court decided that "review of the narrow question determination that need not be supplemented should be set aside is controlled by the 'arbitrary and capricious' standard of § 706(2)(A)." The government persuasively argued that Marsh precludes judicial review of an agency's decision to not supplement an EIS under § 706(1). Indeed, Tenth Circuit case law states it more forcefully than Marsh: "Decisions not to supplement an EIS or EA will only be reversed if the agency decision is found to have been arbitrary and capricious." A decision not to prepare an SEIS is entitled to deference and cannot be set aside unless it was arbitrary and capricious. In this case, the BLM and the Service decided not to prepare an SEIS. The Service decided this in a Supplemental Information Report (SIR). And the BLM decided this in a Determination of NEPA Adequacy (DNA). Therefore, those decisions will only be reviewed under § 706(2). The plaintiffs will not be able to amend their complaint to include § 706(1) review of the decision not to supplement the EIS.