San Juan Citizens Alliance v. Stiles

FILED
United States Court of Appeals
Tenth Circuit

July 21, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SAN JUAN CITIZENS ALLIANCE;
COLORADO ENVIRONMENTAL
COALITION; COLORADO WILD;
OIL AND GAS ACCOUNTABILITY
PROJECT; THE WILDERNESS
SOCIETY,

Plaintiffs - Appellants,
v. No. 10-1259
MARK STILES, in his official
capacity as San Juan National Forest
Supervisor and BLM Center Manager
of the San Juan Public Lands Center;
RICK CABLES, in his official
capacity as Regional Forester of the
Rocky Mountain Region of the U.S.
Forest Service; UNITED STATES
FOREST SERVICE; THOMAS
VILSACK, in his official capacity as
Secretary of the Department of
Agriculture; UNITED STATES
BUREAU OF LAND
MANAGEMENT; KEN SALAZAR, in
his official capacity as Secretary of the
Department of Interior ,

Defendants - Appellees,

and

BP AMERICA PRODUCTION
COMPANY; ELM RIDGE
EXPLORATION COMPANY, LLC;
 EXOK, INC.; PETROX RESOURCES,
INC.; XTO ENERGY INC.,

Intervenor-Defendants -
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:08-CV-00144-RPM)

Michael S. Freeman (Edward B. Zukoski and Margaret Parish, with him on the
briefs), Earthjustice, Denver, Colorado, for Plaintiffs - Appellants.

Thekla Hansen-Young, U.S. Department of Justice, Environment & Natural
Resources Division, (Ignacia S. Moreno, Assistant Attorney General; Andrew C.
Mergen, Robert Oakley, John S. Most, U.S. Department of Justice, Environment
& Natural Resources Division; Kenneth Caps, U.S. Department of Agriculture,
Office of General Counsel; and Philip Lowe, U.S. Department of the Interior,
Office of Solicitor, with her on the briefs), Washington, D.C., for Defendants -
Appellees.

Ezekiel J. Williams, Ducker, Montgomery, Lewis & Bess, P.C., (Steven K. Imig,
Ducker, Montgomery, Lewis & Bess, P.C.; Bret A. Sumner, William E. Sparks,
Beatty & Wozniak, P.C., with him on the brief, and Charles L. Kaiser, Charles A.
Breer, Davis Graham & Stubbs LLP), Denver, Colorado, for Intervenor-
Defendants - Appellees.

Before MURPHY, HARTZ, and O’BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

This appeal concerns the Northern San Juan Basin Coal Bed Methane

project (the Project), which has been approved by the United States Forest

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Service (the Forest Service) and the Bureau of Land Management (the BLM).

The Project contemplates the construction of numerous gas wells within the San

Juan National Forest (the Forest) and on other federal lands. San Juan Citizens

Alliance and four other environmental advocacy groups (collectively, SJCA) filed

suit in the United States District Court for the District of Colorado against the

Forest Service, the BLM, and four government officials (collectively, the Federal

Defendants) for alleged violations of the National Forest Management Act

(NFMA), 16 U.S.C. §§ 1600–1614, and the National Environmental Policy Act

(NEPA), 42 U.S.C. §§ 4321–4347. The suit contends that the 2007 record of

decision (ROD) approving the Project was unlawful. Several companies holding

valid leases in the area and interested in drilling for gas (the Lessees) were

permitted to intervene as additional defendants. The district court entered

judgment in favor of the defendants.

SJCA argues on appeal that the Project violates the NFMA because it is

inconsistent with provisions of the San Juan National Forest Plan (the Forest

Plan) protecting old-growth ponderosa pine forests, wildlife habitat, and riparian

areas, and that the ROD approved individual wells under the Project that violate

the Forest Plan’s standards and guidelines protecting riparian areas. It further

argues that the Federal Defendants violated NEPA in two respects when they

prepared an environmental impact statement (EIS) assessing the Project’s

environmental consequences: (1) the EIS did not adequately analyze the Project’s

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effects on the Forest’s riparian areas, offering only perfunctory references to

mitigation measures without evaluating how those measures could correct Forest

Plan violations; and (2) the Federal Defendants did not include several nearby

national parks and wilderness areas in its cumulative-impact analysis of the

Project’s effects on air quality and visibility.

We have jurisdiction under 28 U.S.C. § 1291 and affirm in part and remand

in part. Ripeness doctrine precludes us from addressing the merits of any of

SJCA’s challenges to the Project under the NFMA. A claim that the Project is

inconsistent with the Forest Plan is not ripe until that inconsistency leads to the

improper approval of a specific well (or associated construction). If that causal

connection is present, the challenge to the well can encompass a challenge to the

defective Project provision under which the well is approved. SJCA’s NFMA

claims fail for lack of the requisite causal connection. We dispose of them as

follows: First, SJCA’s claim that the Project is inconsistent with the Forest

Plan’s old-growth provision is not ripe because SJCA has not challenged the

Federal Defendants’ approval of any wells that affect the Forest’s stands of old-

growth ponderosa pine. Second, SJCA’s contention that the Project violates

certain wildlife-habitat provisions in the Forest Plan is not ripe because SJCA’s

appellate briefs have not argued, much less shown, any causal connection between

the alleged violations and specifically challenged well approvals. Third, SJCA’s

opening brief on appeal appears to raise a ripe challenge to the consistency of the

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Project with the Forest Plan provisions protecting riparian areas when it

complains of riparian damage caused by approval of specific wells and associated

construction of a road. It turns out, however, that the wells and road are not

within the Forest Plan’s management area for riparian land, so the challenge to

approval of the Project based on inconsistencies with the Forest Plan’s mandates

for riparian areas is likewise unripe. (The challenges to the specific well

approvals are ripe, but fail on the merits.) Because SJCA’s NFMA claims that

the Project is inconsistent with the Forest Plan are not ripe, we remand to the

district court to vacate its judgment on those claims and to dismiss them without

prejudice.

As for SJCA’s NEPA claims, we reject them on the merits. First, the EIS’s

discussion of riparian-area mitigation measures is more than adequate to satisfy

NEPA. An EIS assessing environmental consequences at the programmatic stage

of a multi-step development project can properly discuss mitigation measures in

general terms when the specifics of possible well locations are still uncertain,

leaving for later a more complete analysis of environmental consequences

associated with permitting a particular well site. Second, the Federal Defendants’

decision on which public lands to include in the cumulative-impact analysis of air

quality was a reasonable choice involving technical and scientific matters within

their areas of expertise.

I. BACKGROUND

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 A. Overview Of The Federal Regulatory Structure

The Forest Service, an agency within the United States Department of

Agriculture, manages the National Forest System. See Utah Envtl. Congress v.

Richmond, 483 F.3d 1127, 1131 (10th Cir. 2007). Among the laws governing that

management is the NFMA, which requires the Forest Service to “develop,

maintain, and, as appropriate, revise land and resource management plans for

units of the National Forest System.” 16 U.S.C. § 1604(a). Those plans,

commonly known as forest plans, guide all natural resource management

activities. See 36 C.F.R. § 219.1(a). They must provide for multiple uses of the

forests, and include “coordination of outdoor recreation, range, timber, watershed,

wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). All resource plans

and permits, contracts, and other instruments for use and occupancy of the

National Forest lands must be consistent with the governing forest plan. See id.

§ 1604(i).

The BLM, which is in the Department of the Interior, administers oil and

gas leases on federal land. See 30 U.S.C. § 226; Wyoming Outdoor Council v.

Bosworth, 284 F. Supp. 2d 81, 81–83 (D.D.C. 2003). For land within the

National Forest System, however, a lease may not be issued over the objection of

the Forest Service, see 30 U.S.C. § 226(h), and the Forest Service regulates

surface-disturbing activity on the leasehold, see id. § 226(g); Bosworth, 284 F.

Supp. 2d at 82–83.

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 The Forest Service and BLM are subject to NEPA, which “requires federal

agencies to examine and disclose the environmental impacts of their proposed

actions,” Richmond, 483 F.3d at 1133. It has twin aims:

First, it places upon an agency the obligation to consider every
significant aspect of the environmental impact of a proposed action.
Second, it ensures that the agency will inform the public that it has
indeed considered environmental concerns in its decisionmaking
process.
Under NEPA, before an agency may take major Federal actions
significantly affecting the quality of the human environment, [it]
must prepare an environmental impact statement . . . in which [it]
considers the environmental impacts of the proposed action and
evaluates alternatives to the proposed action, including the option of
taking no action. In doing so, the agency must take a “hard look” at
information relevant to its decision.

Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 711 (10th Cir.

2010) (citations, brackets and internal quotation marks omitted). “NEPA imposes

only procedural requirements . . . .” Richmond, 483 F.3d at 1133. It does not

“mandat[e] that agencies achieve particular substantive environmental results.”

Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371 (1989). Nor does it

require the court “to fly speck the [EIS], but rather, to make a pragmatic judgment

whether the [EIS]’s form, content and preparation foster both informed decision-

making and informed public participation.” Custer Cnty. Action Ass’n v. Garvey,

256 F.3d 1024, 1035 (10th Cir. 2001) (internal quotation marks omitted).

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 B. The San Juan Basin and the Forest Plan

Words cannot adequately convey what makes the San Juan Basin so special.

We will not even attempt an approximation. The Basin occupies about 26,000

square miles in northwestern New Mexico and southwestern Colorado. Its

topography includes plateaus, mesas, mountains, rolling uplands, canyons, and

valleys. It is interspersed with transient and permanent streams, and four rivers.

Humans have made their homes in the Basin for millenia. The Basin also

provides valuable habitat and migration routes for many species of wildlife,

including big game and a number of bird species. The Basin offers extensive

recreational and cultural resources.

Of particular relevance to this appeal, the Basin has the second-largest

natural-gas field in the United States. That natural gas includes coal-bed methane

(CBM), a byproduct of the evolution of organic matter into coal. It forms from

organic debris buried beneath thousands of feet of sediment. The gas remains

contained in and adsorbed to the coal until it is liberated by removing the

surrounding groundwater, a process that reduces the pressure within the coal bed.

The first CBM wells were drilled in the San Juan Basin in 1948, and widespread

CBM development in the area began in the mid-1980s. By 1999 there were some

1,000 CBM wells in the Colorado portion of the Basin.

The San Juan Forest occupies more than one million acres within the San

Juan Basin. It is governed by the Forest Plan, which was adopted in 1983 and

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amended in 1992. The Plan “establishes management standards and guidelines

for” the Forest. Lessees’ Supp. App., Vol.1 at 3. It identifies several

management areas consisting of different types of terrain and resources. For each

area the Plan sets forth specific management requirements, which “set the

baseline conditions that must be maintained . . . in carrying out th[e] Forest Plan.

They establish the environmental quality requirements, natural and depletable

resource requirements, and mitigating measures that apply to all areas of the

Forest.” Aplts. App., Vol. I at 232. Any occupancy or use of lands in the Forest,

including the development of gas resources, must be consistent with these

requirements.

C. The Project

In 2000, six companies, including the Lessees, submitted a proposal to drill

for CBM in a portion of the San Juan Basin within Colorado’s La Plata and

Archuleta Counties. The 125,000-acre area (the Project Area) is comprised of

49,000 acres within the San Juan Forest, 7,000 acres of BLM administered land,

9,000 acres of private lands overlying federal minerals, and 60,000 acres of state

and privately held lands overlying nonfederal minerals. The Lessees’ gas-field

development plan proposed drilling 284 wells, 185 of which would be on federal

mineral estate. The plan also called for associated construction, such as access

roads, pipelines, and facilities for measuring and compressing gas. The life of the

proposed project, from initial construction through production and until the

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initiation of reclamation, would be about 40 years. The federal government does

not have authority over private mineral development; but such development was

considered in the EIS analysis of cumulative environmental impacts.

On April 4, 2000, the Federal Defendants published notice in the Federal

Register of their intent to prepare an EIS on proposed CBM development in the

Project Area. See 65 Fed. Reg. 17672 (Apr. 4, 2000). In compliance with the

scoping regulation of the Council on Environmental Quality, they held meetings

and invited written comments to assist them in “determining the scope of issues to

be addressed [in the EIS] and . . . identifying the significant issues related to [the

proposed Project].” 40 C.F.R. § 1501.7. On June 10, 2004, the Federal

Defendants released a draft EIS that considered five alternatives, including a no-

action alternative. They took public comments until November 30, 2004,

receiving about 68,000 responses. The final EIS, published in July 2006, did not

carry forward two of the earlier proposed alternatives (Alternatives 3 and 4) but

analyzed in detail the other three of those alternatives and two new alternatives

(Alternatives 6 and 7) that arose out of comments from the public.

In April 2007, after receiving and responding to additional public

comments, the Federal Defendants issued the ROD. It approved a gas-field

development plan allowing somewhat less CBM development than under

Alternative 7, the preferred alternative in the EIS, and significantly less than

under Alternative 1, the Lessees’ proposal. The approved plan contemplates the

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potential construction of no more than 138 wells and 127 well pads on federal

lands, which would result in the short-term disturbance of 650 acres and long-

term disturbance of 381 acres in the 125,000-acre Project Area.

The ROD did not, however, permit commencement of all the proposed

construction; it specifically authorized only five wells. Development of the rest

of the Project requires additional agency action. Even after approval of the

Project, a Lessee must file for each well site an application for permit to drill

(APD), which contains a surface-use plan of operations (SUPO). See 30 U.S.C.

§ 226(g); 43 C.F.R. § 3162.3-1(d)(2). The SUPO, which may be submitted for

several wells, must provide the location of the drillpad and road, details of pad

construction and methods of containing and disposing of waste, and a surface

reclamation plan for when the well is put out of service. See 43 C.F.R.

§ 3162.3-1(f). Before approving the SUPO, the Federal Defendants must ensure

that the SUPO is consistent with federal law, see 36 C.F.R. § 228.107(a)(1), and,

for wells in the San Juan Forest, the Forest Plan, see id. § 228.107(a)(2), and must

“prepare an environmental record of review or an environmental assessment, as

appropriate[,] . . . [to] be used in determining whether or not an environmental

impact statement is required and in determining any appropriate terms and

conditions of approval of the submitted plan,” id. § 3162.5-1(a). Wells in the

national forest require Forest Service approval of the SUPO before the BLM can

approve an APD. See 30 U.S.C. § 226(g); 43 C.F.R. § 3162.3-1(h).

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 The ROD approved five SUPOs for individual wells and denied two others.

Since the ROD’s issuance, the Federal Defendants have approved at least 16

additional SUPOs, as well as special use permits for state monitoring wells,

construction of pipelines, and road reconstruction, use, and maintenance. The

Federal Defendants estimate that the Lessees will submit between 20 to 30 new

APDs per year, each of which, as noted above, will undergo an environmental

review when submitted.

D. SJCA’s Challenges to the Project

SJCA appealed the approval of the Project to the Regional Forester, seeking

the ROD’s withdrawal. It challenged the Federal Defendants’ “[a]pproval of

surface use associated with gas field development plans and environmental

protection measures for [Forest Service] lands,” Aplts. Supp. Post-Argument

App., Vol. VII at 2023, and their approval of the five SUPOs. The Forest Service

denied SJCA’s appeal and affirmed the ROD, although it mandated some

additional mitigation measures.

SJCA then filed suit in federal court challenging the validity of the ROD

and the EIS on which it is based. In addition to contending that the Federal

Defendants’ analysis of the Project failed to meet the procedural requirements of

NEPA, it asserted that the Project violates the NFMA because it fails to meet the

Forest Plan’s requirements for the protection of old-growth ponderosa pine,

wildlife habitat in certain management areas, and streams and riparian areas. The

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district court disagreed and affirmed the approval of the Project. Although it

acknowledged “flaws in the analysis done in the preparation and writing of the

[EIS] and in the matching up of the [P]roject with the requirements of the Forest

Plan,” it found them to be “minor in proportion to the full context of the agency

action under review.” Aplts. App., Vol. I at 159. SJCA timely appealed.

II. DISCUSSION

A. Standard of Review

We review de novo the district court’s decision affirming the Federal

Defendant’s issuance of the ROD. See Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560, 1564 (10th Cir. 1994). SJCA’s claims in district court were

challenges to final agency action under the Administrative Procedures Act. See

Utah Envtl. Congress v. Russell, 518 F.3d 817, 823 (10th Cir. 2008) (noting that

“neither the NFMA nor NEPA provide a private right of action”). When courts

consider such challenges, an agency’s decision is entitled to a presumption of

regularity, see Rapp v. U.S. Dep’t of Treasury, 52 F.3d 1510, 1515 (10th Cir.

1995), and the challenger bears the burden of persuasion. See Citizens’ Comm. to

Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008). But we can

set aside an agency decision if it is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Morris v.

U.S. Nuclear Regulatory Comm’n, 598 F.3d 677, 690 (10th Cir. 2010).

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 An agency’s decision is arbitrary and capricious if the agency (1)
entirely failed to consider an important aspect of the problem, (2)
offered an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise,
(3) failed to base its decision on consideration of the relevant factors,
or (4) made a clear error of judgment.

New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th

Cir. 2009) (citations and internal quotation marks omitted). The deference we

give agency action “is especially strong where the challenged decisions involve

technical or scientific matters within the agency’s area of expertise.” Russell, 518

F.3d at 824.

B. The NFMA Claims

SJCA argues that the Federal Defendants’ approval of the ROD violated the

NFMA because the Project is inconsistent with a number of the Forest Plan’s

standards and guidelines that protect and conserve the Forest’s old-growth

ponderosa pines, wildlife habitat, and riparian areas. We address these

contentions in turn.

1. The Old-Growth Standard

SJCA contends that the Project is inconsistent with a Forest Plan

requirement that “[i]n forested areas of a unit,” Aplts. App., Vol. I at 233—in this

case all national forest lands within the Project area,—“5 percent or more should

be in old-growth.” Id. SJCA notes that “[t]he EIS estimated that old growth

currently represents only 3.8 percent of the ponderosa pines on national forest

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lands in the Project area,” Aplt. Br. at 17, and contends that “[t]he Project

exacerbates this violation by allowing destruction of still more old growth for

well pads and roads,” id. It finds support for its claim in the EIS’s allegedly

dispositive admission that the fully developed Project would impact old-growth

ponderosa pine in the Project Area and that “‘[t]hese reductions in the old growth

stage would move the Project Area further away from the’ five percent standard.”

Id. (quoting Aplts. App., Vol. I at 280). SJCA asserts that approval of the Project

was therefore unlawful, and that the Federal Defendants should have amended the

Forest Plan or modified the Project to avoid violating it.

The Federal Defendants disagree with SJCA’s characterization of the Forest

Plan’s old-growth standard as mandatory. They assert that the 5% standard is

merely aspirational, “not a binding requirement, and thus the Project may proceed

even though there is less than five percent old growth timber in the Project Area.”

Fed. Defs. Br. at 19.

And in any event, they and the Lessees argue, we need not reach the merits

of that dispute because SJCA’s old-growth claim is premature. They contend that

until the Federal Defendants grant site-specific authorization for a well pad whose

construction would affect areas of old growth, SJCA’s old-growth challenge is not

ripe for adjudication. We agree.

The “ripeness doctrine is drawn both from Article III limitations on judicial

power and from prudential reasons for refusing to exercise jurisdiction.” Reno v.

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Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18 (1993). It serves “to prevent the

courts, through avoidance of premature adjudication, from entangling themselves

in abstract disagreements over administrative policies, and . . . to protect the

agencies from judicial interference until an administrative decision has been

formalized and its effects felt in a concrete way by the challenging parties.”

Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967). To determine whether an

issue is ripe for judicial review, we must examine “both the fitness of the issues

for judicial decision and the hardship to the parties of withholding court

consideration.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998)

(internal quotation marks omitted). “[T]he burden is on the [party challenging an

agency action] to provide evidence establishing that the issue[] [is] ripe for

review.” Park Lake Res. LLC v. U.S. Dep’t of Agric., 197 F.3d 448, 450 (10th

Cir. 1999).

The Supreme Court’s opinion in Ohio Forestry helps demonstrate why

SJCA must wait to challenge the Project’s consistency with the Forest Plan’s old-

growth standard. In that case the Forest Service had adopted a forest plan which

specified those parts of the Wayne National Forest suitable for logging, set

logging goals and limits, and determined which methods of harvesting timber

would be appropriate. See Ohio Forestry, 523 U.S. at 729. The Sierra Club

challenged the plan on the grounds that it permitted excessive logging and

clearcutting, see id. at 728, but Ohio Forestry argued that the case was

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nonjusticiable because the controversy was not ripe. See id. at 732. To determine

ripeness the Court considered: “(1) whether delayed review would cause hardship

to the plaintiffs; (2) whether judicial intervention would inappropriately interfere

with further administrative action; and (3) whether the courts would benefit from

further factual development of the issues presented.” Id at 733. A unanimous

Court ruled that all three factors argued against ripeness. See id.

To begin with, although the plan’s “promulgation . . . ma[de] logging more

likely in that it is a logging precondition [and] in its absence logging could not

take place,” id. at 730, no cognizable harm flowed immediately from adoption of

the plan. The plan did not “command anyone to do anything or to refrain from

doing anything; [it did] not grant, withhold, or modify any formal legal license,

power, or authority; [it did] not subject anyone to any civil or criminal liability;

[and it] create[d] no legal rights or obligations,” such as “giv[ing] anyone a legal

right to cut trees.” Id. at 733. Before tree harvesting could commence, the Forest

Service had to take additional site-specific actions: proposing a specific area for

logging and a specific harvesting technique, providing notice and an opportunity

for comments, conducting an environmental analysis under NEPA, and making a

final decision that could be challenged through administrative appeals and the

courts. See id. at 729–30. Thus, the Sierra Club would have “ample

opportunity . . . to bring its legal challenge at a time when harm is more imminent

and more certain.” Id. at 734. And such a challenge could include a “challenge

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to the lawfulness of the [forest plan] if (but only if) the [plan] then matter[ed],

i.e., if [it] play[ed] a causal role with respect to the future, then-imminent harm

from logging.” Id. (emphasis added). Although the Sierra Club said that it would

“be easier, and certainly cheaper, to mount one legal challenge against the Plan

now, than to pursue many challenges to each site-specific logging decision to

which the Plan might eventually lead,” the Court responded that it would expect

preclusion principles to enable the Sierra Club effectively to carry the day based

on “one initial site-specific victory (if based on the Plan’s unlawfulness),” and “in

any event, the Court has not considered this kind of litigation cost saving

sufficient by itself to justify review in a case that would otherwise be unripe.” Id.

at 734–35.

Regarding the second factor, the Court said that “immediate judicial review

directed at the lawfulness of logging and clearcutting could hinder [the Forest

Service’s] efforts to refine its policies.” Id. at 735. For example, it could revise

the plan before implementation “in response to an appropriate proposed site-

specific action that [would otherwise be] inconsistent with the Plan.” Id. Or it

could adjust site-specific application of the plan to avoid potential

inconsistencies. See id.

And finally, the Court reasoned that further factual development of the

Sierra Club’s claim would be beneficial to the courts. To resolve the challenge

on the present record, the Court would have to engage in “time-consuming . . .

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consideration of the details of an elaborate, technically based plan . . . without

benefit of the focus that a particular logging proposal could provide.” Id. at 736.

Also, review could ultimately prove unnecessary if, as the Court had previously

noted, the Forest Service chose to “revise the Plan or modify the expected

methods of implementation.” Id.

A Ninth Circuit opinion nicely illustrates when a challenge to a forest plan

is ripe for review. In Wilderness Society v. Thomas, 188 F.3d 1130 (9th Cir.

1999), the Wilderness Society contended that the Forest Service had violated the

NFMA by approving a forest plan for the Prescott National Forest that identified

acreage capable of being used for commercial livestock grazing without

conducting a proper analysis of whether the lands were suitable for that purpose.

See id. at 1132–35. In addition, the Wilderness Society alleged that the Forest

Service had unlawfully issued grazing permits for two allotments without

conducting an analysis of grazing suitability. See id. at 1133. Following Ohio

Forestry, the court ruled that the general challenge to the sufficiency of the forest

plan was not ripe. See id. at 1134. The site-specific claims, however, were

justiciable. And because the Wilderness Society alleged that “the site-specific

injury to the two allotments [was] caused by a defect in the Forest Plan,” the

court could “consider whether the Forest Service complied with the [NFMA] in

making its general grazing suitability determinations in the Forest Plan.” Id; see

Wilderness Soc’y v. Alcock, 83 F.3d 386, 390–91 (11th Cir. 1996) (claim that

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forest plan violated the NFMA was not ripe until Forest Service issued a site-

specific decision that was made possible by the alleged defect in forest plan); cf.

Sierra Club v. Robertson, 28 F.3d 753, 758–59 (8th Cir. 1994) (Sierra Club did

not have standing to challenge Ouachita National Forest Plan because it had not

suffered the necessary injury-in-fact; adoption of the plan, a “general planning

tool” that did “not effectuate any on-the-ground environmental changes,” did not

produce an imminent injury; it could, however, challenge a site-specific action

and “assert that the proposed site-specific action is not consistent with the Plan,

or that the Plan as it relates to the proposed site-specific action is inconsistent

with the governing statutes, or both.”); San Juan Citizens Alliance v. Norton, 586

F. Supp. 2d 1270, 1295 (D.N.M. 2008) (plaintiff’s “programmatic challenge” was

not ripe for review because the resource management plan did not “authorize any

specific ground-level disturbances” and “all decisions concerning future, site-

specific actions such as approval of an application for a permit to drill [would be]

subject to administrative approval, and [would] include a detailed NEPA analysis

of the likely environmental impacts of the proposed action”); Bosworth, 284 F.

Supp. 2d at 90–93 (plaintiff’s challenge to issuance of an oil-and-gas lease was

not ripe for review because actual development rested upon uncertain future

events, including the lessees’ submission of APDs and agency approval of

SUPOs).

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 Applying this law to SJCA’s claim that approval of the Project violated the

Forest Plan’s 5% old-growth standard, it is clear that the claim is not ripe. The

Project approval does not cause the loss of a single old-growth ponderosa pine.

To borrow the Supreme Court’s parlance, it does not “command anyone to do

anything or to refrain from doing anything; [it] do[es] not grant, withhold or

modify any formal legal license, power, or authority; . . . [it] create[s] no legal

rights or obligations.” Ohio Forestry, 523 U.S. at 733. No construction or

drilling will take place, and no potential injury can occur, until the Forest Service

approves site-specific SUPOs.

True, SJCA has challenged several site-specific approvals of SUPOs. But

it does not dispute that none of these sites contains old-growth ponderosa pines.

Thus, even if, as SJCA suggests, the Project should not have been approved

without changes to its treatment of old growth, that error has not “play[ed] a

causal role,” id. at 734, in any harm to old-growth trees. Accordingly, delaying

review of the old-growth claim does not cause hardship to the interests asserted

by SJCA. It can wait to bring a challenge when a site-specific SUPO threatens

old growth—“a time when harm is more imminent and more certain.” Id.

The other two ripeness factors articulated in Ohio Forestry likewise favor

delay in adjudication. Judicial review of SJCA’s claim at this time could hinder

the Forest Service’s efforts to refine its policies. When faced with a request to

approve a specific well, it may wish to revise the Forest Plan; and further study

-21-
may alter the factual assumptions underlying the Project, resulting in modification

to site-specific drilling proposals, site-approval practices, or even the old-growth

standard itself. For example, we note that the Forest Service represents that it

now believes that the Project contains more than 5% old growth. We need not

accept that representation as true to recognize that if such a finding were adopted

before approval of a SUPO that called for cutting some old growth, the Forest

Service might well adjust its analysis of the Project.

As for the third factor—benefit to the judiciary—delaying review of

SJCA’s claim prevents time-consuming judicial consideration of an alleged injury

that may never come to pass. By the time the Federal Defendants approve a well

affecting the Forest’s old growth, new information may demonstrate the Project’s

consistency with the Forest Plan or the Forest Service may have amended the

Forest Plan’s old-growth standard. Or, of course, a well impacting the Forest’s

old growth may never be approved.

Accordingly, we remand SJCA’s old-growth claim to the district court with

instructions to vacate the portion of its judgment resolving that claim and to

dismiss the claim without prejudice. See Friends of Marolt Park v. U.S. Dep’t of

Transp., 382 F.3d 1088, 1097 (10th Cir. 2004) (instructing district court to vacate

the portion of its judgment pertaining to an unripe claim); Coal. for Sustainable

Res., Inc. v. U.S. Forest Service, 259 F.3d 1244, 1253 (10th Cir. 2001) (same).

2. The Wildlife Standards

-22-
 SJCA argues that the Federal Defendants violated the NFMA when they

approved the Project because they essentially disregarded four Forest Plan

standards designed to protect species’ habitat in two of the Forest’s Management

Areas, 4B and 5B. Area 4B is a 95,070-acre portion of the Forest that is managed

primarily to maintain habitat for a variety of species. SJCA challenges the

Project’s compliance with two guidelines for Area 4B:

(1) “Maintain at least 90 percent of the habitat needed to support
the State population goals” for “commonly hunted, fished, or
trapped” species (the 4B 90% Guideline). Aplts. App., Vol. I
at 236.

(2) “Maintain habitat capability at a level of at least 80 percent of
potential capability” for certain wildlife species (the 4B 80%
Guideline). Id.

Area 5B consists of 150,110 acres of Forest land that is managed as winter range

for big game species—deer, elk, bighorn sheep, and mountain goats. The

Project’s compliance with two guidelines for Area 5B is challenged by SJCA:

(1) “Maintain habitat effectiveness during winter of at least 90
percent” for big game (the 5B 90% Guideline). Id. at 241.

(2) “Maintain habitat capability at a level at least 80 percent of
potential capability” for big game (the 5B 80% Guideline). Id.

SJCA contends that the Federal Defendants failed to analyze the 4B and 5B 90%

Guidelines “anywhere in the EIS and [ROD] approving the Project,” Aplts. Reply

Br. at 6, and that the 4B and 5B 80% Guidelines “receive[d] only a conclusory

-23-
reference in the EIS that lack[ed] any administrative record support,” id. at 7. By

this failure, SJCA claims, the Federal Defendants violated the NFMA.

As with SJCA’s old-growth claim, however, a stand-alone challenge to

Project approval based on inconsistency with the Forest Plan is not ripe for

review. A challenge can be raised only if Project approval “play[ed] a causal

role” with respect to an imminent harm, such as approval of a SUPO. Ohio

Forestry, 523 U.S. at 734. Perhaps such a challenge could be ripe because the

Federal Defendants have approved site-specific projects within Management

Areas 4B and 5B. But SJCA’s briefs on appeal fail to argue, much less cite

factual support for, a causal connection between the site-specific approvals and

the Project’s alleged inconsistencies with the Forest Plan. It did not allege any

particulars regarding how the specific approvals could contribute to violation of

the standards for Areas 4B or 5B. Any ripe claim is therefore waived. See

Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) (“The

failure to raise an issue in an opening brief waives that issue.”).

3. The Riparian Standards

SJCA contends that the Project is inconsistent with Forest Plan standards

that apply to Forest Management Area 9A. The Forest Plan defines Area 9A to

include “the aquatic ecosystem, the riparian ecosystem . . . , and adjacent

ecosystems that remain within approximately 100 feet measured horizontally from

both edges of all perennial streams and from the shores of lakes and other still

-24-
water bodies.” Aplees.-Fed. Defs. Supp. App., Vol. I at 53 (emphasis added).

The Forest Service manages these ecosystems together “as a land unit comprising

an integrated riparian area, and not as separate components.” Id.

The Forest Plan limits development within Area 9A through standards and

guidelines. SJCA’s briefs focus on four limitations (the Area 9A standards):

• “Proposed new land-use facilities (roads, campgrounds, buildings)
will not normally be located within flood-plain boundaries for the
100-year flood.” The Forest Service must “[p]rotect present and all
necessary future facilities that cannot be located out of the 100-year
floodplain by structural mitigation (deflection structures, riprap,
etc.).” Aplts. Appx., Vol. I at 246.

• The Forest Service must “[p]revent stream channel instability, loss of
channel cross-sectional areas, and loss of water quality resulting
from activities that alter vegetative cover.” Id.

• The Forest Service must “[l]ocate mineral removal activities away
from the water’s edge or outside the riparian area.” Id. at 249.

• The Forest Service must “[l]ocate roads and trails outside riparian
areas unless alternative routes have been reviewed and rejected as
being more environmentally damaging.” Id. at 250.

SJCA contends that approval of the ROD violates the NFMA because some of the

Project’s proposed development is located in riparian areas and the EIS

acknowledged that the Project may not comply with the Area 9A standards.

According to SJCA, the Federal Defendants should therefore have modified the

proposal, rejected the proposal, or amended the Forest Plan, but, instead, they

“shirked [their] duty under NFMA” by “deferr[ing] the anticipated ‘compliance

issues’ until the time individual wells were approved during implementation of

-25-
the Project.” Aplts. Br. at 42. SJCA also claims that the Federal Defendants’

site-specific approval of two wells and the associated construction of an access

road and pipeline violates the Area 9A standards.

We need not repeat our reasoning with respect to SJCA’s other NFMA

issues to state that its challenge to the Project based on violation of the Area 9A

standards can be ripe only if it challenges site-specific approvals whose

contribution to violation of these standards is causally related to the Project

approval. On this claim, in contrast to the other NFMA claims, SJCA’s appellate

briefs argue this causal connection, contending that approval of two Bull Canyon

wells and the associated road construction violates the Forest Plan. 1 In August

2008 the Forest Service approved the construction of the two wells and the

1
In a post-oral-argument letter submitted under Fed. R. App. Proc. 28(j),
SJCA appears to claim that it has also challenged the Federal Defendants’ site-
specific approval of road construction within Area 9A along Fosset Gulch. But
SJCA’s opening brief is silent on the approval of that construction. It was not
until its reply brief that SJCA first mentioned the approval, stating: “Like Bull
Canyon, the Fosset Gulch approval ignores the 9A violations identified by the
EIS. It asserts (incorrectly) that ‘no disturbance would occur within any water
influence zones.’” Aplts. Reply Br. at 20 n.10. SJCA’s belated mention of the
approval of the Fosset Gulch construction was not sufficient to preserve its
challenge for appeal. See Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174
(10th Cir. 2005) (“The failure to raise an issue in an opening brief waives that
issue.”).
The 28(j) letter also claimed that SJCA had challenged the approval of well
9U#2 (not a Bull Canyon well) as violative of the Area 9A standards. But, again,
SJCA’s opening brief is silent on approval of this well. On the contrary, the brief
states that the two “Bull Canyon wells are the only individual approvals issued to
date where the EIS had anticipated a riparian buffer zone violation.” Aplts. Br. at
43 n.12. This challenge is likewise waived.

-26-
associated reconstruction of approximately 5000 feet of the existing Bull Canyon

Road, NFSR 841, which provides access to the well sites. The parties appear to

agree that the two well sites themselves are not located in Area 9A. They also

agree that a portion of reconstructed Bull Canyon road runs along and crosses the

upper reaches of Little Bull Creek, an “[i]ntermittent and [e]phemeral” tributary

of the Lower Piedra River. Aplts. Supp. Post-Argument App., Vol. I at 262.

What the parties disagree about, however, is whether the portion of Little Bull

Creek along which Bull Canyon Road runs is part of Area 9A and therefore

subject to the Area 9A standards.

The Federal Defendants’ position is straightforward. They rely (1) on the

fact (unchallenged by SJCA) that Little Bull Creek is an “[i]ntermittent and

[e]phemeral” stream, id., and (2) the definition of Area 9A as including only areas

within 100 feet of perennial streams, see Aplees.-Fed. Defs. Supp. App., Vol. I at

53. Because the portion of Bull Canyon Road addressed in the approval of the

Bull Canyon wells is therefore not in Area 9A, the approval could not violate the

Area 9A standards.

SJCA responds that the Federal Defendants’ “suggest[ion] that 9A

standards may not apply to non-perennial streams” is a “post-hoc rationalization,”

and asserts that they have “always recognized the standards’ applicability to [non-

perennial] streams.” Aplts. Reply Br. at 20 n.9. SJCA appears to be invoking

(without citation to any court opinions or other authority) the doctrine of SEC v.

-27-
Chenery Corp., 318 U.S. 80 (1943), which does not permit an administrative

agency to defend against a court challenge to an agency decision by invoking a

rationale for its decision that had not been expressed in the agency’s

administrative proceedings.

To support its assertion that the Federal Defendants had previously

considered intermittent streams to be within Area 9A, SJCA primarily relies on

the EIS. The EIS examined water influence zones (WIZs) to “evaluate the

proximity of CBM surface disturbances to surface drainages and water bodies,”

Aplees.-Fed. Defs. Supp. App., Vol. I at 108. For intermittent and ephemeral

streams, such as Little Bull Creek, the WIZ extended 100 feet on each side of the

stream. (For perennial streams it extended 300 feet on each side.) After noting

the proposed “new road construction adjacent to” Little Bull Creek and elsewhere,

the EIS stated that “[r]oad construction as proposed in the WIZ would modify

floodplains, increase sediment delivery, and impact water quality to a high degree

in” the Bull Creek watershed, 2 Aplts. App., Vol. I at 270, and that the proposed

2
The complete passage reads:

Alternatives 1, 2, 5, 6, and 7 would have the same impacts within the Bull
Creek watershed. Large watershed impacts from high road densities
would occur with all alternatives, especially when compared to the current
undeveloped state of the mid and upper watershed. Bull Creek and the
majority of Little Bull Creek would have new road construction adjacent
to the entire length of these streams. Field examination verifies that many
new road stream crossings, road crossings of side tributaries
(approximately 26 road crossings in 2 miles), and substantive construction
(continued...)

-28-
construction in the Bull Creek watershed “may not comply” with some of the

Area 9A standards, 3 id. at 274. SJCA also claims support for its position in (1) a

memo written by a forest hydrologist, which states that in the Bull Creek

2
(...continued)
within the WIZ would be necessary if the road were built as
proposed. In many sections of the canyon, the valley bottom is so
narrow that the road would likely encroach in the stream floodplain
and channel. Road construction as proposed in the WIZ would
modify floodplains, increase sediment delivery, and impact water
quality to a high degree in a watershed that is largely undeveloped.
Bull Creek is an alternately perennial and intermittent stream that
flows directly into the Piedra River. Construction-derived sediment
delivered to Bull Creek would likely also route into the Piedra River,
a perennial fish-bearing river.

Aplts. App., Vol. I at 270 (emphasis added).
3
The part of the paragraph referring to Bull Creek states:

Within the largely undeveloped Bull Creek watershed, Alternatives 1,
2, 5, 6, and 7 propose extensive new road, well, and pipeline
construction parallel to the stream and in the WIZ and through
narrow, confined canyon bottoms. Those activities may not comply
with the following management standards: “Locate mineral removal
activities away from the waters edge or outside of the riparian area
(Forest Plan – MA 9A Mining Law Compliance and Administration –
GD, 02)” . . . and: “Prevent stream channel instability, loss of
channel cross-sectional areas, and loss of water quality resulting
from activities that alter vegetative cover (Forest Plan – MA 9A
Water Resource Improvement and Maintenance – GD, 03,” and:
“Locate roads and trails outside riparian areas unless alternative
routes have been reviewed and rejected as being more
environmentally damaging (Forest Plan – MA 9A Transportation
System Management – L01, L02, 01).

Id. at 274–75 (emphasis added).

-29-
watershed the WIZ “include[s] . . . an area 100 feet from the exterior edge of any

stream,” id., Vol. II at 444, and (2) a hard-to-read map which may show Bull

Canyon Road crossing a WIZ.

But the EIS and other statements relied on by SJCA do not purport to

redefine the boundaries of Area 9A, nor do they unequivocally state that the Bull

Canyon Road, or the portion pertinent to our inquiry, is in Area 9A. That the EIS

analyzed effects on water quality throughout a WIZ that included significantly

more than Area 9A reflects the exhaustive breadth of the EIS, not its

interpretation of the Forest Plan.

In our view, the Federal Defendants’ argument is not barred by Chenery.

The record contains the Forest Plan’s definition of Area 9A and the Federal

Defendants’ description of Little Bull Creek as an ephemeral or intermittent

stream. No further analysis is necessary to determine that Little Bull Creek is not

in Area 9A. Perhaps there is an ambiguity in the Federal Defendants’

Supplemental Information Report that supported approval of the Bull Canyon

wells and associated road construction. It said simply that “no riparian zones

would be affected” by the proposed construction. Id. at 576. One might interpret

the statement as saying that even though there is proposed construction in riparian

zones, they will not be affected. But the more natural reading is that the

construction would not be in riparian zones. And if SJCA had been uncertain

about the matter, it could have objected to the well approval in administrative

-30-
proceedings on the ground that Area 9A standards would be violated. Indeed, its

failure to raise that objection in the administrative proceedings would have

foreclosed our consideration of the issue if any defendant had raised an

exhaustion defense. See Forest Guardians v. U.S. Forest Service, 641 F.3d 423,

430 (10th Cir. 2011) (“Plaintiffs must exhaust available administrative remedies

before the [Forest Service] prior to bringing their grievances to federal court.”)

Accordingly, we hold that the approval of the Bull Canyon wells could not

have violated the Area 9A standards because the well pads and their associated

construction are not within Area 9A. And absent a challenge to site-specific

approvals within Area 9A, SJCA has no ripe challenge to Project approval based

on alleged violations of Forest Plan requirements for that area. We therefore

remand to the district court to vacate its judgment on SJCA’s Area 9A claims and

to dismiss them without prejudice. As for SJCA’s Area 9A challenge to the

approval of the Bull Canyon wells and associated road construction, we reject the

challenge on the merits.

D. SJCA’s NEPA Claims

SJCA contends that the Federal Defendants’ analysis of the Project led to

multiple NEPA violations. We hold that SJCA has not established any ground for

reversal under NEPA of the district court’s decision.

1. The Riparian Areas

-31-
 As we understand SJCA’s riparian-area NEPA claim, it is arguing that the

EIS did not satisfy the requirements of NEPA because it acknowledged that some

of the Project’s proposed development “may not comply” or “may conflict” with

various Area 9A standards, id., Vol. I at 273–275, yet it offered only perfunctory

references to mitigation measures without analyzing how those measures could

correct the anticipated violations of the Forest Plan. According to SJCA, the

EIS’s discussion of mitigation measures fell short of NEPA’s mandated “hard

look,” and left the public unable to assess the Project’s conformity with Forest

Plan mandates. We disagree.

To be sure, an EIS must assess whether there are “[p]ossible conflicts

between the proposed action and the objectives of Federal . . . use plans,” 40

C.F.R. § 1502.16(c), and then discuss “steps that can be taken to mitigate [a

project’s] adverse environmental consequences.” Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 351 (1989). This requirement is “[i]mplicit in

NEPA’s demand that an agency prepare a detailed statement on ‘any adverse

environmental effects which cannot be avoided should the proposal be

implemented.’” Id. at 351–52 (quoting 42 U.S.C. § 4332(C)(ii)). Accordingly,

the EIS must discuss “mitigation . . . in sufficient detail to ensure that

environmental consequences have been fairly evaluated.” Id. at 352. An agency

is required to “discuss possible mitigation measures in defining the scope of the

EIS, 40 CFR § 1508.25(b) (1987), in discussing alternatives to the proposed

-32-
action, § 1502.14(f), and consequences of that action, § 1502.16(h), and in

explaining its ultimate decision, § 1505.2(c).” Id. “It is not enough to merely list

possible mitigation measures.” Colorado Envtl. Coal. v. Dombeck, 185 F.3d

1162, 1173 (10th Cir. 1999).

But NEPA does not contain “a substantive requirement that a complete

mitigation plan be actually formulated and adopted.” Robertson, 490 U.S. at 352.

An EIS’s discussion of mitigation measures need be only “reasonably complete.”

Id. It need not present a mitigation plan that is “legally enforceable, funded or

even in final form to comply with NEPA’s procedural requirements.” Nat’l Parks

& Conservation Ass’n v. U.S. Dep’t of Transp., 222 F.3d 677, 681 n.4 (9th Cir.

2000).

“[T]he line between an EIS that contains an adequate discussion of

mitigation measures and one that contains a ‘mere listing’ is not well defined.”

Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 476 (9th Cir. 2000).

The essential test is reasonableness. See Robertson, 490 U.S. at 352 (discussion

need be only “reasonably complete”). And the detail that reasonableness requires

can depend on the stage of the approval process at which the EIS is prepared.

Detailed quantitative assessments of possible mitigation measures are

generally necessary when a federal agency prepares an EIS to assess the impacts

of a relatively contained, site-specific proposal. See Neighbors of Cuddy

Mountain v. U.S. Forest Service, 137 F.3d 1372, 1380–81 (9th Cir. 1998); The

-33-
Wilderness Soc’y v. Bosworth, 118 F. Supp. 2d 1082, 1106–07 (D. Mont. 2000).

But requiring such detail would often not be appropriate when the EIS concerns a

large-scale, multi-step project and the risks to be mitigated cannot be accurately

assessed until final site-specific proposals are presented. For the EIS to analyze

in detail every possible site proposal could take enormous time and resources,

much of which would be wasted on potential proposals that would never

materialize. Thus, NEPA regulations allow for “tiering” of environmental

reviews:

Tiering refers to the coverage of general matters in broader
environmental impact statements (such as national program or policy
statements) with subsequent narrower statements or environmental
analyses (such as regional or basinwide program statements or
ultimately site-specific statements) incorporating by reference the
general discussions and concentrating solely on the issues specific to
the statement subsequently prepared.

40 C.F.R. § 1508.28. Tiering can “eliminate repetitive discussions of the same

issues and [allows the agency] to focus on the actual issues ripe for decision at

each level of environmental review,” id. § 1502.20, while “exlud[ing] from

consideration issues already decided or not yet ripe,” id. § 1508.28(b); see Sierra

Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1215 (11th Cir. 2002).

N. Alaska Environmental Center v. Kempthorne, 457 F.3d 969 (9th Cir.

2006), is instructive. Environmentalists alleged that an EIS analyzing the

environmental consequences of a BLM plan to offer long-term oil and gas leases

in northern Alaska violated NEPA because it only “listed general mitigation

-34-
measures and did not analyze the effectiveness of each measure.” Id. at 979. The

Ninth Circuit, however, upheld the EIS’s discussion of mitigation measures.

Similar to the project at issue here, the BLM’s approval of the leasing plan did

not approve any construction projects. Actual on-the-ground disturbances would

not occur until the project’s exploration and development stages, see id. at 977,

and permits for those actions would not issue until the agency had performed

extensive analysis of site-specific environmental effects and appropriate

mitigation measures, see id. at 973. Although the EIS included lease stipulations

and required operating procedures to avoid or minimize the environmental impact

of the leasing program, it left further details regarding possible additional

mitigation measures to site-specific environmental assessments when lessees

submitted exploration and development plans. See id. at 979. Given the

uncertainty regarding which sites would eventually be developed at such an early

stage of a multi-step process, the court determined that the “development of more

specific mitigating measures” was not required at that time. Id; see Theodore

Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 515–17 (D.C. Cir. 2010)

(programmatic EIS’s discussion of mitigation measures satisfied NEPA even

though many of the mitigation measures were described in general terms and their

“exact application . . . [would] be determined on a site-specific basis”); N. Alaska

Envtl. Ctr. v. Lujan, 961 F.2d 886, 890–91 (9th Cir. 1992) (detailed analysis of

mitigation measures is unwarranted in a programmatic EIS; it can be “deferred

-35-
until a concrete development proposal crystalizes the dimensions of a project’s

probable environmental consequences” (internal quotation marks omitted)).

We think that the EIS’s discussion of the Project’s impact on Area 9A

standards was “reasonably complete.” Robertson, 490 U.S. at 352. The EIS and

the ROD indicate that further review will take place when the Lessees submit

site-specific permit applications. That review will “be tiered to the [EIS]” and

will “be limited in scope . . . to the site-specific aspects of the environmental

analysis that were not covered by the [EIS].” Aplts. App. at 413. Because of the

uncertainty regarding the siting of wells and ancillary facilities, much of the EIS

analysis had to rely on “conceptual approximations of the best facility location

based upon field knowledge, topographic map aids, and the application of well

spacing rules.” Aplees.-Fed. Defs. Supp. App., Vol. I at 110–11.

Even so, the EIS included more than seven pages of siting and engineering

techniques and best management practices to “reduce CBM development effects

to surface water quality, quantity, and use.” Id. For example, the EIS

recommends 11 mitigation measures if a pipeline, road, or power line has to cross

a stream, wetland, or riparian area. As the EIS points out, the Forest Service

Region 2 Watershed Conservation Practices Handbook describes the general

effectiveness of many of these measures, often referencing empirical studies. The

EIS also recommends the development of site-specific mitigation plans during the

approval process of individual wells that would disturb wetlands or riparian areas,

-36-
and notes that the Forest Plan requires the Lessees to implement monitoring plans

to assess surface-water quality.

SJCA has utterly failed to explain why it was unreasonable for the EIS to

leave further detail to environmental analyses tied to specific site approvals. If

SJCA believes that such analyses are nonexistent or inadequate, it can challenge

the associated site approvals.

2. The Wildlife Standards

A footnote in SJCA’s opening brief contends that “the [Federal Defendants]

violated NEPA when [they] failed to demonstrate compliance with the Forest

Plan’s wildlife standards.” Aplt. Br. at 47 n.15. We decline to consider this

issue. SJCA’s opening brief mentions this NEPA argument only that one time,

and the footnote is in a section of its brief whose title—“The Forest Service

Violated NEPA By Failing To Demonstrate Compliance With The Forest Plan’s

Stream Protection Standards”—does not encompass this issue. Id. at 45.

Moreover, the footnote fails to develop SJCA’s argument. It states: “For the

same reasons [apparently referring to SJCA’s reasons for believing that the EIS’s

discussion of riparian-area mitigation measures was inadequate], the agency also

violated NEPA when it failed to demonstrate compliance with the Forest Plan’s

wildlife standards. For example, the Forest Service offered no analysis of

whether seasonal traffic restrictions could achieve compliance with the Area 5B

standards.” Id. at 47 n.15. SJCA advances the argument no further, leaving to

-37-
this Court the burden of constructing a persuasive case for its position. This we

will not do. Having raised the issue insufficiently in its opening brief, SJCA has

waived it on appeal. See Therrien v. Target Corp., 617 F.3d 1242, 1252–53 (10th

Cir. 2010) (appellant waived argument on appeal when it mentioned the issue

only once in a footnote in its opening brief and footnote did not contain

argument); Norris, a Dover Res. Co. v. NLRB, 417 F.3d 1161, 1168 (10th Cir.

2005) (issue mentioned but not argued in footnote was not adequately briefed);

Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1169 (10th

Cir. 2002) (one-sentence NEPA argument waived because not briefed

adequately); United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002)

(“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”).

3. Air-Quality Analysis

NEPA required the EIS to analyze the Project’s cumulative environmental

impact on the San Juan Basin and surrounding area. See Richmond, 483 F.3d at

1133; 40 C.F.R. § 1508.25. Cumulative impact is the “impact on the environment

which results from the incremental impact of the action when added to other past,

present, and reasonably foreseeable future actions regardless of what agency . . .

or person undertakes such other actions.” 40 C.F.R. § 1508.7. It can “result

from individually minor but collectively significant actions taking place over a

period of time.” Id. In evaluating a proposal’s cumulative impact, an agency

must consider the project’s “proximity to historical or cultural resources, park

-38-
lands, . . . or ecologically critical areas.” Id. § 1508.27(b)(3). As summarized by

a fellow circuit:

[A] meaningful cumulative impact analysis must identify five things:
(1) the area in which the effects of the proposed project will be felt;
(2) the impacts that are expected in that area from the proposed
project; (3) other actions—past, present, and proposed, and
reasonably foreseeable—that have had or are expected to have
impacts in the same area; (4) the impacts or expected impacts from
these other actions; and (5) the overall impact that can be expected if
the individual impacts are allowed to accumulate.

TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 864

(D.C. Cir. 2006) (internal quotation marks omitted).

Because CBM drilling and various activities associated with the

construction of CBM wells and their ancillary facilities can affect the surrounding

region’s air quality, the Federal Defendants used air-pollutant-dispersion

modeling to assess the Project’s cumulative impact on air quality and visibility.

Their modeling sought “to quantify potential [carbon monoxide] and [nitrogen

dioxide] impacts during [well] operation, based on the period of maximum

potential emissions and other emission sources located within the Analysis Area.”

Lessee’ Supp. App., Vol. I at 315. The analysis covered 12,600 square miles of

southwestern Colorado and northwestern New Mexico, and assessed the Project’s

air-quality impacts at Mesa Verde National Park and Weminuche Wilderness Area

in Colorado.

-39-
 SJCA contends that the Federal Defendants’ analysis nevertheless violated

NEPA because they failed to assess the Project’s effects on air quality and

visibility in certain “Class I” areas within New Mexico. The Clean Air Act

defines Class I areas to include national wilderness areas exceeding 5,000 acres

and national parks exceeding 6,000 acres. See 42 U.S.C. § 7472(a). The Act

declares as a “national goal the prevention of any future . . . [manmade]

impairment of visibility” in Class I areas. Id. § 7491(a). SJCA argues that the

absence of an assessment of the New Mexico areas “violated NEPA’s requirement

to take a hard look at the impacts of the Project to these areas, which Congress

has identified as being ecologically critical,” and that “[t]he stunted scope of [the

cumulative-impact] analysis cannot be excused as a necessary line-drawing

decision by the government.” Aplt. Br. at 50.

We disagree. Setting the boundaries of the region to be analyzed involved

technical and scientific judgments within the Federal Defendants’ area of

expertise, and their conclusion regarding which Class I sites to include in the

analysis is one to which we defer. See Kleppe v. Sierra Club, 427 U.S. 390, 414

(1976) (the “determination of the extent and effect of [cumulative environmental

impacts], and particularly identification of the geographic area within which they

may occur, is a task assigned to the special competency of the appropriate

agencies”); Morris, 598 F.3d at 691 (“[O]ur deference to [an] agency is especially

strong where [its] challenged decisions involve technical or scientific matters

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within the agency’s area of expertise.” (internal quotation marks omitted)). Both

the Mesa Verde and Weminuche Class I areas are closer to the Project Area than

the New Mexico Class I areas. SJCA has not demonstrated that it was

unreasonable for the Federal Defendants to conclude that “any visibility impacts

in Class I areas would be greatest in those two areas, and impacts at other, more

distant areas would be less significant.” Fed. Defs. Br. at 57. We recognize that

the New Mexico Environment Department disagreed with this conclusion.

According to the state agency, dispersion modeling analyses demonstrated that

“emissions from the Four Corners region degrade New Mexico’s Class I areas

visibility equally or more than Colorado’s Class I areas,” a fact which

necessitated “analysis at northern New Mexico Class I areas.” Aplts. Appx.,

Vol. II at 434–35. But “the Four Corners region” encompasses a far larger area

(and much of it significantly closer to New Mexico Class I areas) than the Project

Area. And in any event, “[w]hen specialists express conflicting views, an agency

must have discretion to rely on the reasonable opinions of its own qualified

experts even if, as an original matter, a court might find contrary views more

persuasive.” Marsh, 490 U.S. at 378; see Greater Yellowstone Coal. v. Flowers,

359 F.3d 1257, 1272 n.14 (10th Cir. 2004) (“[An agency] is entitled to rely on its

own experts even when their opinions conflict with those of other federal

agencies, as long as its decisions are not arbitrary and capricious.”). The Federal

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Defendants’ decision to limit the study to Colorado Class I areas was not arbitrary

or capricious.

IV. CONCLUSION

For the reasons stated above, we REMAND to the district court with

instructions to VACATE that portion of its judgment pertaining to the NFMA

claims challenging approval of the Project, and DISMISS those claims without

prejudice; we AFFIRM the district court’s order regarding the NEPA claims and

the NFMA challenge to approval of the Bull Canyon wells. Appellants’ Motion

to Strike the Forest Service’s supplemental brief and addendum is DENIED.

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