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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 08-cv-1624-WJM-NRN
COLORADO ENVIRONMENTAL COALITION,
INFORMATION NETWORK FOR RESPONSIBLE MINING,
CENTER FOR NATIVE ECOSYSTEMS,
CENTER FOR BIOLOGICAL DIVERSITY, and
SHEEP MOUNTAIN ALLIANCE,
Plaintiffs,
v.
OFFICE OF LEGACY MANAGEMENT, and
UNITED STATES DEPARTMENT OF ENERGY,
Defendants.

ORDER GRANTING MOTION TO DISSOLVE INJUNCTION AND
DIRECTING ENTRY OF FINAL JUDGMENT

Plaintiffs bring this lawsuit under the Administrative Procedure Act (“APA”),
5 U.S.C. §§ 701 et seq., the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4231 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq.,
challenging certain decisions made by the United States Department of Energy’s Office
of Legacy Management (for purposes of this order, “DOE”) concerning a uranium
mining program in southwestern Colorado that DOE oversees. That program was
known as the Uranium Lease Management Program (“ULMP”). At some point, the
program dropped “Management” from its title and now goes by “ULP,” but the Court will
continue to refer to it as “ULMP” for consistency with prior orders.
In an earlier phase of this lawsuit, the Court enjoined DOE from implementing its

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most recent decisions regarding the ULMP. Currently before the Court is DOE’s Motion
to the Dissolve Injunction (“Motion to Dissolve”). (ECF No. 160.) For the reasons
explained below, the Court will grant this motion, dissolve the injunction, and enter final
judgment.
I. BACKGROUND
A.

Early Stages and Original Injunction
In 2007 and 2008, DOE approved new uranium mining under the ULMP, mostly

on lands around Paradox Valley in southwestern Colorado. Plaintiffs sued in July 2008,
claiming that DOE had not satisfied its obligations under NEPA, ESA, and associated
regulations when making this decision. (ECF No. 1.) Substantive proceedings moved
slowly at first due to parallel litigation over collateral matters, and to limited discovery
the Court permitted. (ECF No. 41.) The case was transferred to the undersigned upon
his appointment in February 2011. (ECF No. 71.)
In October 2011, having finally received full substantive briefing, the Court
partially agreed with Plaintiffs’ challenges. See Colo. Envtl. Coal. v. Office of Legacy
Mgmt., 819 F. Supp. 2d 1193 (D. Colo. 2011) (ECF No. 94) (“CEC I”). Consequently,
the Court vacated DOE’s environmental review documents, stayed all existing ULMP
leases, and enjoined DOE from approving additional leases or other ULMP-related
activities on the lease tracts. Id. at 1224. The Court then invited DOE to “move . . . to
dissolve this injunction” after it had “conduct[ed] an environmental analysis on remand
that complies with NEPA, ESA, all other governing statutes and regulations, and this
Order.” Id.

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B.

Previous Motion to Dissolve Injunction
In April 2017, DOE moved to dissolve the injunction. (ECF No. 147.) The Court

resolved that motion in February 2018. See Colo. Envtl. Coal. v. Office of Legacy
Mgmt., 302 F. Supp. 3d 1251 (D. Colo. 2018) (ECF No. 151) (“CEC II”). The Court
agreed with DOE that it had corrected all previously noted errors, save for one. The
ESA requires federal agencies to evaluate whether their actions might jeopardize the
habitat of an endangered or threatened species, and this evaluation process may
include consultation with the United States Fish & Wildlife Service (“FWS”). See id. at
1269–70. In this case, the main question was whether reasonably foreseeable uses
and discharges of water in the course of mining and associated activities might
ultimately affect four endangered fish species living in the Colorado River. Id. at 1270,
1273–74. DOE requested FWS’s opinion on the matter (a “Biological Opinion” or
“BiOp”) by sending to FWS the DOE’s Biological Assessment (“BA”) that that water
usage would have at least some adverse effect on the endangered Colorado River fish.
Id. at 1270. FWS’s resulting BiOp concluded that there was no likelihood of
jeopardizing or threatening those fishes’ habitat. Id. at 1270–71.
However, when requesting the BiOp, DOE conveyed to FWS only the forecasted
annual water consumption of ULMP mines, and not water consumption for “other mining
operations expected to coincide with renewed mining on ULMP lease tracts.” Id. at
1273. In particular, DOE’s water consumption analysis did not address a uranium mill
planned for Paradox Valley, to be known as the Piñon Ridge Mill:
Among the many things DOE says about this mill, DOE
predicts “[a] surge in uranium exploration, mining, and
permitting . . . if the mill is constructed,” referring to mining
on BLM land rather than ULMP lease tracts. DOE notes that

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the Piñon Ridge Mill would require water as part of its milling
operations. DOE does not, however, estimate the mill’s
water requirements, nor the water requirements of the nonULMP uranium mines it predicts will come into existence.
Id. (citations omitted; alterations in original). “Notably,” the Court added,
DOE does not claim that it lacks information from which it
can reasonably estimate the amount of water the Piñon
Ridge Mill will likely consume, or the amount of water nonULMP uranium mines will likely consume. The Court is
therefore compelled to presume that DOE possesses the
necessary information.
Id. at 1274.
With the ability to predict all water consumption associated with renewed mining
on the ULMP tracts—whether caused by DOE’s decision to resume mining there, or
simply coinciding with it and reasonably foreseeable to occur—the Court held that DOE
had acted arbitrarily and capriciously by relying on FWS’s resulting BiOp, knowing that
the BiOp was formulated with materially incomplete information. Id.; see also id. at
1272 (“An agency acts ‘not in accordance with law,’ 5 U.S.C. § 706(2)(A), when it fails
to convey material information in its possession to FWS, and the agency behaves
arbitrar[ily] and capriciously when it relies on a BiOp resulting from a materially defective
consultation.”). “Fortunately,” the Court continued,
the remedy in this circumstance does not require total
vacatur . . . . Instead, the Court will leave the existing
injunction in place, for the time being, and order DOE to
reinitiate consultation with FWS based on a supplemental
BA. The supplemental BA may be limited solely to the
question of water depletion based on DOE’s estimates of the
likely combined annual water usage of ULMP mines, nonULMP mines likely to become operational, and the Piñon
Ridge Mill. Upon receiving FWS’s response (presumably an
additional or supplemental BiOp), DOE may then issue an
updated or supplemental ROD [i.e., record of decision] and
move once again to dissolve the injunction. Such a motion

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need only address whether DOE fulfilled its ESA § 7
consultation duties with respect to water depletion that may
affect Colorado River endangered fish.
Id. (footnote omitted).
C.

Current Motion to Dissolve
By letter dated May 2, 2018, DOE transmitted a supplemental BA to FWS. (ECF

No. 160-1.) The supplemental BA reports DOE’s efforts to search for all relevant
current or reasonably foreseeable uranium mining and related activities in the area, and
to estimate annual water usage of all these activities. (Id. at 4–7.) The BA also
tabulates all of the estimated water usage. (Id. at 7–10.)
The most notable development reported in the supplemental BA is that, not long
after this Court issued CEC II, a Colorado administrative law judge ruled that the
Colorado Department of Public Health and Environment (“CDPHE”) should not have
issued the license under which the Piñon Ridge Mill was to be constructed and
operated. (Id. at 5–6.) The supplemental BA further reports that CDPHE elected not to
appeal the judge’s decision, and “therefore the license [was] revoked as of April 26,
2018.” (Id. at 6.) In this light, the supplemental BA announces that the Piñon Ridge Mill
is no longer a reasonably foreseeable action coinciding with renewed ULMP mining, so
DOE would not consider its potential water usage. (Id.) However, perhaps out of a
desire not to appear to be shirking the Court’s instructions in CEC II, DOE included
within the supplemental BA the amount of water the Piñon Ridge Mill had been
expected to consume. (Id.) DOE also included a parting comment about the changing
uranium market and its potential relationship to the defunct Piñon Ridge proposal:
Finally, in the [previous BA’s] discussion regarding
cumulative effects from the yet-to-be constructed Piñon

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Ridge Mill, whose licensed was revoked in April 2018, DOE
cited the following text from that company’s reports for the
mill: “A surge in uranium exploration, mining, and permitting
is anticipated if the mill is constructed, including permitting
and development of uranium/vanadium deposits controlled
by Energy Fuels Resources.” The cited reports were circa
2009 to 2012. This statement may have been appropriate at
that time; however, since then, various world events
happened (e.g., Fukushima in 2011) that contributed to
continued low uranium ore prices—lower than economically
feasible for new mining or a surge in mining.
(Id. at 10–11.)
By letter dated June 19, 2018, FWS responded to DOE’s supplemental BA.
(ECF No. 160-2.) As to Piñon Ridge, FWS agreed that it was no longer the sort of
reasonably foreseeable action that must be considered. (Id. at 3.) As to all other data
reported in the supplemental BA, FWS announced that its previous BiOp was still
accurate in predicting no jeopardy to the Colorado River endangered fishes’ habitat.
(Id. at 2–4.)
Having received this information, DOE moved to dissolve the injunction in July
2018. (ECF No. 160.) Plaintiffs remain opposed to dissolving the injunction, except as
to ULMP least tracts that will be reclaimed rather than newly mined. (ECF No. 162 at
9–10.)
II. LEGAL STANDARD
In opposing the first motion to dissolve, Plaintiffs argued from case law that a
party seeking to dissolve an injunction bears a heavy burden to show that
circumstances have changed. (See ECF No. 148 at 10–11.) The Court rejected this
argument: “Plaintiffs’ cited case law relates to injunctions that were meant to last
indefinitely. Here, however, the Court specifically contemplated lifting its injunction after

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DOE completed the necessary environmental review.” CEC II, 302 F. Supp. 3d at 1255
(citing CEC I, 819 F. Supp. 2d at 1224).
In opposing DOE’s current Motion to Dissolve, Plaintiffs once again argue that
DOE bears a heavy burden of showing changed circumstances. (ECF No. 162 at 4.)
The Court again rejects this argument, for the reasons just stated. Although DOE bears
the burden in this procedural posture, it is simply a burden to show that it has materially
complied with the Court’s instructions.
III. ANALYSIS
A.

Whether a New or Supplemental Administrative Record is Needed
DOE attached its supplemental BA and FWS’s response to its Motion to Dissolve

(ECF Nos. 160-1, 160-2), but has not submitted any other documents generated during
the re-consultation process the Court ordered in CEC II. Plaintiffs’ primary challenge is
that DOE cannot move to dissolve the injunction without first assembling and lodging a
new or supplemental administrative record, comprising all documents related to the reconsultation. (ECF No. 162 at 5–6.)
The parties have not cited, nor has the Court located, any authority establishing
that a government agency must, in all instances, assemble and disclose a full
administrative record before seeking a Court’s approval of its administrative action. The
case law assumes that an administrative record will be assembled, but without
discussing it as some sort of categorical or jurisdictional requirement.
Despite the paucity of case law on the topic, judicial review of administrative
action will, by nature, nearly always require an administrative record. Under the unique
circumstances presented here, however, the Court finds that DOE committed no error,

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or, if it did, the error is attributable to Plaintiffs as the equivalent of invited error. These
outcomes are evident from the procedures that led up to the Motion to Dissolve.
To repeat, the Court’s instructions in CEC II were as follows:
Fortunately, the remedy in this circumstance does not
require total vacatur . . . . Instead, the Court will leave the
existing injunction in place, for the time being, and order
DOE to reinitiate consultation with FWS based on a
supplemental BA. The supplemental BA may be limited
solely to the question of water depletion based on DOE’s
estimates of the likely combined annual water usage of
ULMP mines, non-ULMP mines likely to become operational,
and the Piñon Ridge Mill. Upon receiving FWS’s response
(presumably an additional or supplemental BiOp), DOE may
then issue an updated or supplemental ROD and move once
again to dissolve the injunction. Such a motion need only
address whether DOE fulfilled its ESA § 7 consultation
duties with respect to water depletion that may affect
Colorado River endangered fish.
302 F. Supp. 3d at 1274 (footnote omitted). A few months later, DOE submitted a
status report announcing that it had transmitted its supplemental BA to FWS and
“intend[ed] to file a motion to dissolve the injunction as soon as practicable after receipt
of [FWS’s] final response to the [BA].” (ECF No. 154 at 1–2.) The Court then ordered
the parties to “confer and . . . file a joint status report explaining their views (including
their respective views, if they cannot agree) on: (1) what steps remain, if any, before
[DOE] may file a motion to dissolve the injunction, and (2) an appropriate briefing
schedule for such a motion.” (ECF No. 155.) In the joint status report, “[t]he parties
agree[d] that the only step remaining before [DOE] may file a motion to dissolve the
injunction is for [DOE] and [FWS] to complete their consultation over [the supplemental
BA].” (ECF No. 156 at 1.) The parties also presented an agreed-upon briefing
schedule, with the motion to dissolve due “30 days after receipt of final response from

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FWS to Supplemental BA.” (Id. at 3.) The Court adopted the proposed briefing
schedule, with the first deadline (i.e., filing of the motion to dissolve) set for 30 days
after DOE received a final response from FWS regarding the supplemental BA. (ECF
No. 157.)
This course of events reveals three things. First, the Court charged DOE with a
limited, discrete task—in contrast to a reopening of the entire process that the Court
ordered in CEC I. Second, the Court expressed its expectation of an updated or
supplemental ROD, 1 but the Court said nothing about a new or supplemental
administrative record—in contrast to proceedings before the original motion to dissolve
(ECF No. 147), where the Court specifically required a new administrative record (see
ECF No. 132). Third, the Court asked the parties to describe “what steps remain, if any,
before [DOE] may file a motion to dissolve the injunction” (ECF No. 155), and Plaintiffs
did not at that time raise the need to produce a new or supplemental administrative
record.
Accordingly, because the Court did not require a new administrative record, DOE
did not err in failing to produce one. Also, the situation is equivalent to “invited error”
because Plaintiffs had their opportunity to insist on an administrative record as part of
the scheduling order but did not. See, e.g., United States v. Edward J., 224 F.3d 1216,
1222 (10th Cir. 2000).
Finally, assembling an administrative record would take more time and likely
more briefing. The Court finds that it would not be in the interest of justice to delay
1

No party has pointed the Court to an updated or supplemental ROD, unless the
supplemental BA (ECF No. 160-1) is deemed to be the same thing. But Plaintiffs do not object
on this account, so the Court will not explore the matter further.

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resolution of the matter any further. This case is almost eleven years old, and the
Court’s injunction has been in place for more than seven years.
For all these reasons, the Court holds under the unusual circumstances
presented here that DOE need not have assembled and disclosed a full administrative
record before seeking review of its limited, Court-ordered re-consultation with FWS.
B.

Whether DOE Properly Evaluated the Significance of the Piñon Ridge Mill
Developments
Plaintiffs’ only other argument against dissolving the injunction is that DOE

purportedly did not recognize the true significance of the Piñon Ridge Mill’s demise.
(ECF No. 162 at 6–8.) Plaintiffs note that the Piñon Ridge Mill was expected to
consume a substantial amount of water—substantial enough to exceed a numeric
threshold that FWS finds significant, particularly when added to all other estimated
water usage. (Id. at 7.) Plaintiffs argue that FWS therefore should have considered the
Piñon Ridge estimate as a proxy for whatever mill will handle the uranium likely to be
mined in the area: “the newly presented fact that [the] Piñon Ridge Mill license is no
longer effective and another mill must be used does not allow [DOE] to arbitrarily
exclude the water depletions needed to mill the oars from the [DOE] uranium lease
tracts.” (Id. (emphasis added).) Plaintiffs’ argument fails for at least three reasons.
First, Plaintiffs fail to recognize the significance of the Piñon Ridge Mill in the
Court’s previous ruling. The Court noted DOE’s prediction that the Piñon Ridge Mill
would prompt a uranium mining boom in the area, particularly on non-ULMP tracts.
CEC II, 302 F. Supp. 3d at 1273. The Court thus faulted DOE for failing to “estimate the
mill’s water requirements, [and] the water requirements of the non-ULMP uranium
mines [DOE] predicts will come into existence.” Id. And that is what the Court tasked

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DOE with estimating and then transmitting to FWS. Id. at 1274. The Court never
faulted DOE’s estimates for water usage associated with ULMP lease tracts.
Regardless, the supplemental BA plausibly and adequately explains why the Piñon
Ridge Mill will likely never be constructed, and why substantial uranium mining is not
likely to occur anyway. There is no hint that the mining that likely will occur will require
anywhere near the fairly large amount of water predicted for the Piñon Ridge Mill.
Second, FWS in fact conveyed the Piñon Ridge Mill estimate to FWS. It did so,
of course with a significant caveat, i.e., that it no longer viewed the estimate as relevant
and it was not seeking FWS’s opinion in light of the estimate. (ECF No. 160-1 at 5–6.)
Nonetheless, FWS came to its own conclusion, in agreement with DOE, that the Piñon
Ridge estimate was not a matter it needed to consider. (ECF No. 160-2 at 3.) DOE
therefore did not fail to convey the relevant information to FWS—and conveying that
information is what the Court ordered in CEC II.
Third, the only potential location that ULMP-generated uranium ore could be
milled is the White Mesa Mill near Blanding, Utah, roughly 100 miles from Paradox
Valley. DOE conveyed White Mesa’s estimated water requirements to FWS. (ECF No.
160-1 at 7.) Plaintiffs fault DOE for relying on a 1979 figure for that estimate, stating
that “[c]urrent data is [sic] presumably available.” (ECF No. 162 at 8.) But Plaintiffs
then go on to note that the previously-filed administrative record shows the White Mesa
Mill processes “only alternate feed” (nuclear waste generated through non-natural
processes, from which uranium may be extracted), not uranium ore. (Id. (internal
quotation marks omitted).) This strongly suggests that useful data for White Mesa Mill
are not available, given that the mill does not presently process what ULMP and other

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uranium mines would produce—uranium ore.
For these reasons, the Court finds that DOE did not fail to convey adequate
information to FWS during the re-consultation process. Consequently, DOE has
remedied the only lingering problem noted in CEC II, and is entitled to have the
injunction dissolved.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion to Dissolve the Injunction (ECF No. 160) is GRANTED;

2.

The Court’s injunction entered October 18, 2011 (ECF No. 94, as modified by
ECF No. 102) is DISSOLVED;

3.

The Clerk shall enter judgment in favor of Defendants and against Plaintiffs, and
shall terminate this action; and

4.

The parties shall bear their own costs.
Dated this 18th day of March, 2019.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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