Glenwood Springs Citizens' Alliance v. United States Department of Interior et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:20-cv-00658-CNS
GLENWOOD SPRINGS CITIZENS’ ALLIANCE,
Plaintiff,
and
GARFIELD COUNTY BOARD OF COUNTY COMMISSIONERS,
Plaintiff-Intervenor,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR,
DEBORAH HAALAND, Secretary of the Interior,
UNITED STATE BUREAU OF LAND MANAGEMENT,
NADA CULVER, Acting Deputy Director of the BLM,
JAMIE CONNELL, Colorado BLM State Director, and
LARRY SANDOVAL, JR., Field Manager of the BLM’s Colorado River Valley Field Office,
Defendants.
ORDER
Garfield County covers the cities of Glenwood Springs and Rifle; the towns of Carbondale,
Parachute, Newcastle, and Silt; and the community of Battlement Mesa (ECF No. 19 at ¶ 4). The
Garfield County Board of County Commissioners is the sole legislative authority for Garfield
County (Id.) Members of Plaintiff Glenwood Springs Citizens’ Alliance, a non-profit organization,
live near Glenwood Springs, and make daily use of the nearby roads for transportation and
recreational purposes (ECF No. 1 at 5-6 ¶ 13). This civil action concerns a mining quarry
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maintained outside Glenwood Springs by non-party Rocky Mountain Resources, and Rocky
Mountain Resources’ alleged use of the mining quarry to mine “common variety minerals” (ECF
No. 1 at 1-2 ¶ 1). According to Plaintiffs, mining these minerals has—and continues to—harm the
surrounding area (see, e.g, id. at 6 ¶ 14). Glenwood Springs and Garfield County allege that the
Bureau of Land Management has enabled Rocky Mountain Resources’ mining practices for years,
contravening the Bureau’s regulatory obligations (See, e.g., ECF No. 19 at 6 ¶ 12).
Before the Court is the Federal Defendants’ Motion to Dismiss Plaintiff Glenwood Springs
Citizens’ Alliance’s (“Glenwood Springs’”) Complaint and Plaintiff-Intervenor Garfield County
Board of County Commissioners’ (“Garfield County’s”) Complaint-in-Intervention (ECF No.
30).1 The Federal Defendants contend that the Court should dismiss Glenwood Springs’ and
Garfield County’s claims against them for lack of subject matter jurisdiction and for the failure to
state a claim under the Administrative Procedure Act (Id. at 1-2). For the reasons set forth below,
the Court GRANTS in part and DENIES in part the Federal Defendants’ Motion to Dismiss.
I. BACKGROUND2
The Bureau of Land Management (the “Bureau”) first approved Mid-Continent Resources
Minerals, Inc. and associated Pitkin Iron, Inc’s Plan of Operations in 1982 (the “1982 Plan”) (ECF
No. 1 at 17 ¶ 56).3 The companies conducted mining operations at the quarry, known as the Mid-
Continent Quarry (the “Quarry”), located on federal public lands outside of Glenwood Springs,
1 Pursuant to a prior minute order and status conference, the Federal Defendants refiled their previously filed Motion
to Dismiss in August 2021. (See ECF No. 30 at 1-2.)
2 The background facts are taken predominantly from the well-pleaded allegations in Glenwood Springs’ Complaint.
See Porter v. Ford Motor Co., 917 F.3d 1246, 1248 n.1 (10th Cir. 2019). The allegations in the Complaint and Garfield
County’s Complaint-in-Intervention are substantially similar.
3 The Bureau amended the Plan in 1989 (ECF No. 19 at 9 ¶ 18).
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Colorado (Id. at 1-2, 17 ¶¶ 1, 56). The 1982 Plan was approved strictly for mining and removing
“locatable” minerals, and did not authorize the removal of common variety limestone (Id. at ¶ 57).
A mineral deposit is considered “common variety” if it is sold or used for common variety
purposes, such as for “roadbase, rip-rap, backfill, and boulders” for construction projects (Id. at 12
¶ 36). Mining companies require special permission from the Bureau to mine common variety
minerals, and regulations governing the removal of common variety minerals differ from
regulations governing the removal of other minerals (See, e.g., id. at 13 ¶¶ 40-43). CalX Minerals,
Inc., Rocky Mountain’s predecessor, acquired the Mid-Continent Quarry mining claims and
resumed operations in early 2009 (Id. at 17 ¶ 58). The Bureau stressed to Rocky Mountain’s
predecessors that, pursuant to the 1982 Plan, mining for common variety uses was prohibited at
the Quarry (See id. at ¶ 59; see also id. at 19-20 ¶ 66-68).
Time passed. Rocky Mountain purchased the mining claims covering the Quarry in 2016
(Id. at 17, 20 ¶¶ 57, 69). Like its predecessors, Rocky Mountain was informed that, pursuant to the
1982 Plan, mining minerals for common variety purposes at the Quarry was impermissible (Id. at
20-21 ¶ 71). Nonetheless, Glenwood Springs alleges that since Rocky Mountain purchased the
Quarry’s mining claims, the Bureau has allowed Rocky Mountain to excavate and sell limestone
for common variety uses (Id. at 21 ¶ 73). But because the Bureau never gave Rocky Mountain
formal permission to mine and sell minerals for common variety purposes through a Mineral
Material Sales Contract, Rocky Mountain’s mining operations have been in violation of relevant
federal regulations (See, e.g., id. at 24 ¶ 84). After investigating Rocky Mountain’s mining
operations, Garfield County issued a violation notice against Rocky Mountain for violating its
county permit in 2019 (Id. at 25 ¶ 86). Glenwood Springs alleges that sales record evidence further
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demonstrates that Rocky Mountain violated both its county permit and the 1982 Plan by mining
common variety minerals (See, e.g.¸ id. at 27 ¶¶ 92-93).
In March and July 2019, the Bureau sent letters (the “March 2019 Letter” and the “July
2019 Letter”) to Rocky Mountain permitting its continued operations (Id. at 31 ¶¶ 103-04). In
2019, Rocky Mountain and the Bureau entered into an escrow agreement (the “Escrow
Agreement”) (Id. at ¶ 104). Under the Agreement’s terms, the Bureau permitted Rocky Mountain
to continue its current operations subject to the parties establishing an escrow account to cover the
sale of Rocky Mountain’s common variety minerals, if such sales were occurring (Id.). At the same
time, the Bureau began investigating Rocky Mountain’s common varieties operations in order to
prepare 	a 	Determination 	of 	Common 	Variety 	Mineral 	Examination 	Report 	(the 	“DCV
Investigation”) regarding Rocky Mountain’s operations (Id. at 31 ¶ 103). At bottom, during the
DCV Investigation, the Bureau has permitted Rocky Mountain to continue its common variety
mining operations, despite having actual knowledge that Rocky Mountain has for years improperly
produced and sold minerals for common variety uses (Id.). The Bureau has never otherwise
conducted a regulatory review of Rocky Mountain’s mining operations, and permitted Rocky
Mountain to continue its operations “unabated” (See id. at 33, 38-39 ¶¶ 113, 136).
II. LEGAL STANDARD
The Federal Defendants move to dismiss the Complaint and Complaint-in-Intervention’s
claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (ECF No. 30 at 2). The
Federal Defendants argue that to survive their motion to dismiss, Glenwood Springs and Garfield
County must allege facts satisfying the APA’s statutory standing requirements (Id.). The Court
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applies both the Rule 12(b)(1) and 12(b)(6) standards in assessing Glenwood Springs’ and Garfield
County’s claims.4
A. Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) governs dismissal challenges for lack of subject
matter jurisdiction. Rule 12(b)(1) challenges assume two forms. First, the moving party may mount
a “facial attack” that challenges the complaint’s allegations as to the “existence of subject matter
jurisdiction.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004).
When a party mounts a facial attack, courts must accept a complaint’s allegations as true. See Holt,
46 F.3d at 1002. Second, a party may “go beyond” the complaint’s allegations by presenting
evidence challenging the factual basis “upon which subject matter jurisdiction rests.” Id. (citation
omitted). Plaintiffs bear the burden of establishing subject matter jurisdiction because they are the
parties asserting it. See Port City Properties v. Union Pac. R. Co., 518 F.3d 1186, 1189 (10th Cir.
2008).
In the APA context, establishing statutory standing is required for a court to exercise
jurisdiction over a party’s APA claims. See, e.g., S. Utah Wilderness All. v. Sierra, No. 2:07-CV-
00199-CW, 2010 WL 4782976, at *2 (D. Utah Nov. 16, 2010), aff’d and remanded sub nom. S.
Utah Wilderness All. v. Palma, 707 F.3d 1143 (10th Cir. 2013). The failure to do so compels
4 District courts within the Tenth Circuit have applied both the Rule 12(b)(1) standard and the Rule 12(b)(6)
standard in assessing similar APA claims. See Slater Park Land & Livestock, LLC v. U.S. Army Corps of Engineers,
423 F. Supp. 3d 1076, 1079 (D. Colo. 2019) (“[T]he presence of final agency action is not a jurisdictional issue.”
(citation omitted)); but see Cnty. Commissioners of Cnty. of Sierra v. United States Dep’t of the Interior, No. CV 21-
611 GBW/CG, 2022 WL 2754297, at *5 (D.N.M. July 14, 2022) (“[T]he finality of a challenged agency action is . .
. jurisdictional in the Tenth Circuit.” (citation omitted)). Although the Tenth Circuit has indicated but not explicitly
held that the Rule 12(b)(1) standard applies rather than the Rule 12(b)(6) standard, see Farrell-Cooper Mining Co. v.
United States Dep’t of Interior, 864 F.3d 1105, 1109 (10th Cir. 2017), given that the Federal Defendants moved to
dismiss under Rules 12(b)(1) and 12(b)(6)—and that District Courts are split on this issue—for completeness the
Court analyzes the Complaint and Complaint-in-Intervention under both standards.
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dismissal. See, e.g., id. In ruling on a Rule 12(b)(1) motion to dismiss claims under the APA, a
party must meet its burden of showing that jurisdiction is proper for each claim. See State of Utah
v. Babbitt, 137 F.3d 1193, 1204 (10th Cir. 1998).
The Court construes the Federal Defendants’ Motion to Dismiss as a facial attack on
Glenwood Springs’ Complaint and Garfield County’s Complaint-in-Intervention. The Motion to
Dismiss challenges Glenwood Springs’ and Garfield County’s allegations, and the Federal
Defendants attached no exhibits to it (See, e.g., ECF No. 30 at 5). Cf. Shipley v. I.R.S., No. CIV.A.
042573JWL, 2005 WL 1334617, at *1 (D. Kan. June 6, 2005), aff’d, No. 05-3273, 2006 WL
497720 (10th Cir. Mar. 2, 2006) (construing motion to dismiss as “factual attack” where defendant
“offer[ed] exhibits” in support of the motion). Accordingly, the Court accepts Glenwood Springs’
and Garfield County’s allegations as true in its analysis of the Federal Defendants’ dismissal
motion. See Holt, 46 F.3d at 1002.
B. Federal Rule of Civil Procedure 12(b)(6)
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Allegations are read in “the context of the
entire complaint.” Chilcoat v. San Juan Cnty., 41 F.4th 1196, 1207 (10th Cir. 2022) (quotation
omitted). To survive a motion to dismiss, a complaint must allege facts, accepted as true and
interpreted in the light most favorable to the plaintiff, to state a claim to relief that is plausible on
its face. See, e.g., Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). A plausible claim
is one that allows the court to “draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If a complaint’s allegations are
“so general that they encompass a wide swath of conduct, much of it innocent,” then a plaintiff
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has failed to “nudge [the] claims across the line from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quotation omitted). In assessing a claim’s
plausibility, “legal conclusions” contained in the complaint are not entitled to the assumption of
truth. See Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). The
standard, however, remains a liberal pleading standard, and “a well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (quotation omitted).
III. ANALYSIS
Having considered the Federal Defendants’ Motion to Dismiss (ECF No. 30), Glenwood
Springs’ Response (ECF No. 31), Garfield County’s Response (ECF No. 32), the Federal
Defendants’ Reply (ECF No. 33), the Complaint (ECF No. 1), the Complaint-in-Intervention
(ECF No. 19), relevant legal authority, and oral argument held on October 26, 2022, the Court
grants in part and denies in part the Federal Defendants’ Motion to Dismiss.
A. The Improper Authorization Claims
Glenwood Springs and Garfield County allege that the Bureau has violated its legal and
regulatory obligations by improperly authorizing Rocky Mountain’s mining operation for common
variety minerals, and that for this reason the Bureau’s actions are arbitrary and capricious subject
to judicial review under the APA (ECF Nos. 1 at 41 ¶ 143, 19 at 19-20 ¶ 46). The Federal
Defendants urge dismissal of Glenwood Springs’ and Garfield County’s improper authorization
claim on the grounds that the Complaint and Complaint-in-Intervention fail to allege the Federal
Defendants took any final agency action (See ECF No. 30 at 3). According to the Federal
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Defendants, the alleged “agency actions” that support Glenwood Springs’ and Garfield County’s
claim contemplate “pre-enforcement” activity—not actions that demonstrate any decision the
Bureau has formally made regarding Rocky Mountain’s mining operations (Id. at 6). At bottom,
the Federal Defendants contend that without adequately alleging they took any final agency action,
the Complaint and Complaint-in-Intervention fail to establish that Glenwood Springs and Garfield
County have statutory standing to bring their improper authorization claim (See id. at 3). The Court
agrees with the Federal Defendants.
To establish statutory standing under the APA for their improper authorization claim,
Glenwood Springs and Garfield County must allege that the Federal Defendants took a “final
agency action.” See Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1155 (10th Cir.
2004); see also 5 U.S.C. § 551(13) (defining types of agency actions). An agency action is “final”
if 	it 	meets 	two 	requirements. 	First, 	it 	must 	mark 	the “consummation 	of 	[an] 	agency’s
decisionmaking process.” Kansas ex rel. Schmidt v. Zinke, 861 F.3d 1024, 1031 (10th Cir. 2017)
(quotation omitted). Second, it must be an action that establishes “rights or obligations,” or from
which “legal consequences . . . flow.” Id. (citation omitted). Agency decisions of a “merely
tentative” or interlocutory nature are not final. Pennaco Energy, 377 F.3d at 1155.5
In support of their argument that the Bureau’s allegedly improper authorization of Rocky
Mountain’s mining operations gives rise to a cognizable APA claim, Glenwood Springs and
Garfield County identify three documents they contend constitute final agency actions subject to
5 These two “prongs” were articulated in Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Courts have consistently
interpreted—and applied—Bennett as a two-prong test. See, e.g., Pennaco Energy, 377 F.3d at 1155. The Federal
Defendants invite the Court to apply a third: whether a final agency action had a “direct and immediate” impact. (ECF
No. 30 at 3.) The Court declines the Federal Defendants’ invitation. As Garfield County correctly argues, the authority
on which they rely for this proposition predates Bennett, and the Court is bound to follow the Bennet framework and
subsequent Tenth Circuit cases applying it (See ECF No. 32 at 12).
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judicial review: the March 2019 Letter, the July 2019 Letter, and the Escrow Agreement (ECF
Nos. 1 at 38 ¶ 134, 31 at 22, 32 at 9-10). Even assuming that these documents are agency actions,
the Court agrees with the Federal Defendants they are not final agency actions.
To be “final” agency actions, the three documents must consummate the Bureau’s
decisionmaking process. See Zinke, 861 F.3d at 1031. Glenwood Springs argues that the Escrow
Agreement allowed Rocky Mountain to continue mining common variety minerals, and that it
represented the Bureau’s “affirmative decision” to permit continued mining at the Quarry (ECF
No. 31 at 34-35). Therefore, it argues, the Escrow Agreement is not merely a tentative or
interlocutory decision—it is a document that authorized Rocky Mountain’s continued mining of
common variety minerals with “daily on-the-ground impacts” for local residents (Id. at 39). For
these reasons, Glenwood Springs contends, the Escrow Agreement satisfies Bennet’s first
“consummation” prong (Id. at 35-36). Garfield County makes similar arguments regarding both
the Agreement and the March 2019 and July 2019 Letters. According to Garfield County, the
documents unambiguously represent the consummation of the Bureau’s decision to allow removals
of suspected common variety limestone, further underscored by the extensive negotiations that
prefaced the Escrow Agreement’s execution (ECF No. 32 at 13-15).
The Court rejects Glenwood Springs’ and Garfield County’s interpretation of the Escrow
Agreement, March 2019, and July 2019 Letters. Turning to the Escrow Agreement, it states that
the Bureau “believes that” the minerals Rocky Mountain removed from the Quarry “may not be”
subject to disposal under the Mining Law of 1872 (ECF No. 32-1 at 2).6 It goes on to state that the
6 Even construing the Federal Defendants’ Motion to Dismiss as a facial attack under Rule 12(b)(1), the Court may
consider the Escrow Agreement and other documents attached to or referenced in the Complaint and Complaint-in-
Intervention. See Am. Nat’l Prop. & Cas. Co. v. Whisenant, No. CV 19-1024 KG/KK, 2020 WL 5366810, at *4
(D.N.M. Sept. 8, 2020) (determining that consideration of documents attached to or referenced in complaint generally
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Bureau has “begun” a mineral investigation, and that “if” the Bureau concludes that minerals are
not subject to the Mining law then the Bureau “may” initiate administrative contest proceedings
(Id.). And when the Bureau’s determination “has become” final, the Bureau “shall” notify Rocky
Mountain (Id. at 3). The Escrow Agreement contains similar language elsewhere. For instance, “in
the event” that the Bureau determines some Quarry minerals are not subject to the Mining Law
and Rocky Mountain fails to follow the Agreement’s prescribed escrow procedures, then Rocky
Mountain “may be subject to liability” for damages (Id. at 4).
The 	Escrow 	Agreement’s 	recitals 	bear 	no 	hallmarks 	of 	consummated 	agency
decisionmaking. There is nothing to indicate that the Escrow Agreement was issued after
“extensive agency factfinding” regarding Rocky Mountain’s mining operations. See U.S. Army
Corps of Engineers v. Hawkes Co., 578 U.S. 590, 597 (2016). By its own terms, the Escrow
Agreement states that the Bureau has undertaken, but not yet completed, its DCV Investigation
(See ECF No. 32-1 at 2). The Bureau has not “ruled definitively” on whether Rocky Mountain is
mining common variety minerals—the Escrow Agreement states only that it “believes” Rocky
Mountain may be mining common variety minerals (See id.). See also Hawkes, 578 U.S. at 597
(quotation omitted). The Escrow Agreement more closely resembles a tentative assessment of
Rocky Mountain’s operations, and is not the “last word” on Rocky Mountain’s mining operations.
Ctr. For Native Ecosystems v. Cables, 509 F.3d 1310, 1330 (10th Cir. 2007). Furthermore, even if
the Bureau’s investigation determines that some Quarry minerals are not subject to the Mining
Law, then “the [Bureau] may initiate” administrative proceedings, illustrating that the Bureau may
does not “convert a facial attack to a factual one” (quotation omitted)). The Court may also consider the documents
under Rule 12(b)(6) as well. See, e.g., N.E.L. v. Gildner, 780 F. App’x 567, 571 (10th Cir. 2019).
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choose not to pursue any violation it uncovers (ECF No. 32-1 at 2 (emphasis added)). See also
Slater Park, 391 F. Supp. 2d at 1082 (determining notice of violation was not final because
defendants “may also choose not” to further pursue violation). In sum, the Escrow Agreement only
reflects the “first step in a potential enforcement process”—not the end of the Bureau’s
decisionmaking. Id. (quotation omitted). See also Utah Native Plant Soc’y v. United States Forest
Serv., 923 F.3d 860, 866 (10th Cir. 2019) (determining agency action was final where action
resulted in the plaintiff’s “first demand denied; end of discussion”).
For substantially the same reasons, the Court concludes that the March 2019 and July 2019
Letters do not consummate the Bureau’s final decisionmaking process. Garfield County contends
that Letters, like the Escrow Agreement, evidence the Bureau’s decision to allow Rocky
Mountain’s removal of “suspected” common variety limestone (ECF No. 32 at 13). But the March
2019 Letter notified Rocky Mountain that the Bureau intended to conduct a “Determination of
Common Variety Mineral Examination,” and the July 2019 Letter outlined “next steps” for
baseline studies, the escrow account, and Determination of Common Variety Mineral Examination
(ECF Nos. 32-9 at 1, 32-10 at 1-3). The content of the March 2019 and July 2019 Letters do not
demonstrate that the Bureau had reached a definitive ruling on Rocky Mountain’s mining
operations or that the Bureau had, at that time, extensively investigated whether Rocky Mountain
was mining minerals for common variety uses. Cf. Hawkes, 578 U.S. at 597; Cables, 509 F.3d at
1330. Accordingly, the March 2019 and July 2019 Letters do not satisfy Bennett’s first
“consummation” prong.
* * *
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The gravamen of Glenwood Springs’ and Garfield County’s argument is that the Bureau
has taken a final agency action because the Escrow Agreement permits Rocky Mountain to
continue its mining operations, which are likely in violation of the 1982 Plan (See ECF Nos. 31 at
38-39, 32 at 15). But alleging that the Escrow Agreement enables Rocky Mountain to continue its
mining operations while the DCV Investigation is allegedly pending is insufficient to show the
Agreement is a “consummation” of the Bureau’s decisionmaking. See Bennett, 520 U.S. at 177–
78. Simply because an agency action carries consequences—even if allegedly harmful—does not
necessarily make that action final.
Glenwood Springs and Garfield County have failed to show the Escrow Agreement, March
2019 Letter, or July 2019 Letter are consummations of the Bureau’s decisionmaking. As such, the
Court need not address whether these documents are agency actions that have determined any
rights or obligations, or are actions “from which legal consequences” flow. Bennett, 520 U.S. at
177–78. Accordingly, Glenwood Springs and Garfield County have not met their burden of
satisfying the APA’s statutory standing requirements as to their improper authorization claim, see,
e.g., Pennaco Energy, 377 F.3d at 1155, and this claim is DISMISSED.7
B. The Failure to Act & Unreasonable Delay Claims
Turning to Glenwood Springs’ and Garfield County’s second claim under § 706(1) of the
APA, the parties contend that the Bureau violated its statutory and regulatory obligations by failing
to act when it knew Rocky Mountain was mining common variety minerals (See ECF Nos. 1 at
7 For the same reasons, dismissal under Rule 12(b)(6) is appropriate because Glenwood Springs and Garfield County
have failed to plead a plausible claim for relief. The March 2019 Letter, July 2019 Letter, and Escrow Agreement do
not constitute final agency actions. Therefore, Glenwood Springs and Garfield County have not set forth a plausible
APA claim based on the Bureau’s alleged improper authorization of Rocky Mountain’s mining operations. See, e.g.,
Mayfield, 826 F.3d at 1255; Iqbal, 556 U.S. at 678.
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41-42 41-42 ¶ 145, 19 at 48). The plaintiffs further allege that the Bureau unreasonably delayed in
applying the governing law and implementing regulations to Rocky Mountain’s ongoing mining
operations (See id.). As with their improper authorization claim, under Rule 12(b)(1) Glenwood
Springs and Garfield County bear the burden of satisfying the APA’s statutory standing
requirements for their second claim based on the Bureau’s “unlawfully withheld and unreasonably
delayed” agency action (ECF Nos. 1 at 41-42 41-42 ¶ 145, 19 at 48). See also Babbitt, 137 F.3d at
1204. And under Rule 12(b)(6), Glenwood Springs and Garfield County must allege plausible
claims based on the Bureau’s “unlawfully withheld and unreasonably delayed” agency action. See,
e.g., Mayfield, 826 F.3d at 1255.
The Federal Defendants contend dismissal of Glenwood Springs’ and Garfield County’s
claims is appropriate because the Bureau’s decision to bring an enforcement action against Rocky
Mountain is discretionary, and for this reason, its failure to do so does not violate the APA (See
ECF No. 30 at 8). See also 5 U.S.C. § 706(1). As explained further below, the Court disagrees with
the Federal Defendants that the Bureau’s discretion to bring an enforcement action warrants
dismissal of Glenwood Springs’ and Garfield County’s second claim.
1. 	Unlawfully Withheld Agency Action
Glenwood Springs and Garfield County allege the Bureau has unlawfully withheld agency
action against Rocky Mountain’s continued mining of alleged common variety minerals (See ECF
Nos. 1 at 41-42 41-42 ¶ 145, 19 at 48). The Court first determines what requirements Glenwood
Springs and Garfield must satisfy to survive the Federal Defendants’ Motion to Dismiss their §
706(1) claims based on the Bureau’s unlawfully withheld actions before discussing whether they
have satisfied those requirements.
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a. 	Legal Framework
The APA authorizes suit by any person adversely affected by an agency’s failure to take
certain agency actions. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 61–62 (2004) (citing 5
U.S.C. §§ 702 and 704). Relief for an agency’s failure to act is provided in § 706(1): a reviewing
court shall “compel agency action unlawfully withheld . . . .”
Agencies’ failures to act are “sometimes remediable under the APA, but not always.”
Norton, 542 U.S. at 61. A claim for unlawfully withheld agency actions under § 706(1) may only
proceed where a plaintiff asserts an agency failed “to take a discrete agency action” as defined in
§ 551(13) that “it is required to take.” Id. at 64 (original emphasis); see also Scarborough Citizens
Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 99–100 (1st Cir. 2012) (“We start by
asking whether the . . . [statutory] provision . . . . imposes a discrete, non-discretionary duty to act
on the federal official.”). “The discreteness requirement promotes a core goal of the APA because
it permits lawsuits targeting agency inaction to the same degree that suits challenging reviewable
‘agency action’ under § 706(2) . . . are permitted.” Ctr. for Biological Diversity v. Zinke, 260 F.
Supp. 3d 11, 20 (D.D.C. 2017) (citations omitted) (original emphasis). So too with the
“mandatory” requirement: it is consistent with the practice of limiting judicial review to acts
agencies are demanded to take by law—including, “of course, agency regulations that have the
force of law.” Norton, 542 U.S. at 65. In the context of agency enforcement actions, there is a
presumption against judicial review of an agency’s “refusal to take enforcement steps” if the
decision to enforce is discretionary. Heckler v. Chaney, 470 U.S. 821, 831 (1985).
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With this framework in mind, the Court turns to the Federal Defendants’ argument that
Glenwood Springs and Garfield County have failed to allege the Bureau unlawfully withheld any
agency action under § 706(1).
b. 	Discussion
According to the Federal Defendants, Glenwood Springs and Garfield County have not
alleged facts satisfying their standing burden (See ECF No. 30 at 7). They have not met their
burden, the Federal Defendants’ argument goes, because the Bureau’s decision to take any
enforcement action against Rocky Mountain for its alleged mining of common variety minerals is
discretionary (Id. at 8). To the extent Glenwood Springs’ and Garfield County’s second claims are
premised on any allegedly withheld enforcement action against Rocky Mountain, the Court agrees
with the Federal Defendants.
Glenwood Springs and Garfield County point to 43 C.F.R. § 3601.6 in arguing that the
Bureau was under a “mandatory rule” to, among other actions, prohibit Rocky Mountain’s
operation for mining common variety minerals (ECF No. 31 at 46; see also ECF No. 32 at 18-19).
But § 3601.6 outlines the Bureau’s policy goals—it does not impose any discrete actions the
Bureau is required to take. See Norton, 542 U.S. at 64. Glenwood Springs and Garfield County
fail to identify any other authority that imposes on the Bureau a mandatory duty to initiate an
enforcement action against Rocky Mountain for its mining operations. Cf. 43 C.F.R. § 3601.71
(explaining “unauthorized use” of public lands for companies’ operations). Accordingly, to the
extent Glenwood Springs and Garfield County argue the Bureau’s alleged failure to prevent or
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stop Rocky Mountain’s continued mining of suspected common variety minerals, the parties have
failed to meet their standing burden (See ECF Nos. 31 at 46, 32 at 21). See also Heckler, 470 U.S.
at 831.8
But this does not end the Court’s analysis of Glenwood Springs’ and Garfield County’s
second claim. As pleaded, the parties also allege the Bureau unreasonably delayed agency action
against Rocky Mountain for its suspected mining of common variety minerals (See ECF Nos. 1 at
41-42 41-42 ¶ 145, 19 at 48). Accordingly, the Court must proceed to analyze Glenwood Springs’
and Garfield County’s second claim under the APA’s “unreasonably delayed” framework. See §
706(1).
2. 	Unreasonably Delayed Agency Action
Glenwood Springs and Garfield County claim that the Bureau unreasonably delayed taking
any agency action against Rocky Mountain for mining common variety minerals (ECF Nos. 1 at
41-42 41-42 ¶ 145, 19 at 48). In support of their claim, they point to allegations that the Bureau
knew—and had known for years—that Rocky Mountain was mining common variety minerals
(See, e.g., ECF Nos. 1 at 2-3 ¶ 3, 19 at 3-4 ¶ 5). The Court first determines what requirements
Glenwood Springs and Garfield must satisfy to survive the Federal Defendants’ Motion to Dismiss
their § 706(1) claims based on the Bureau’s unreasonably delayed actions before discussing
whether they have satisfied those requirements.
8 For substantially the same reasons, Glenwood Springs and Garfield County have failed to plead a plausible claim for
relief based on the Bureau’s allegedly “unlawfully withheld” agency action under Rule 12(b)(6). As required for such
a claim, Glenwood Springs and Garfield County have not alleged that the Bureau was under a mandatory duty to
initiate an enforcement action. See Fed. R. Civ. P 12(b)(6); see also Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012) (determining that while the 12(b)(6) standard does not require showing of prima facie case in
complaint, elements of alleged cause of action help to determine “whether [the party] has set forth a plausible claim”
(citation omitted)).
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a. 	Legal Framework
The APA authorizes courts to compel agency actions “unreasonably delayed.” § 706(1).
As with “unlawfully withheld” agency actions, delays cannot be “unreasonable with respect to an
action that is not required.” Norton, 542 U.S. at 64 n.1. “In considering a charge of unreasonable
delay . . . . [a court] must satisfy [itself] that the agency has a duty to act and that it has
‘unreasonably delayed’ in discharging that duty.” In re Am. Rivers & Idaho Rivers United, 372
F.3d 413, 418 (D.C. Cir. 2004) (citing § 706(1)). Therefore, a plaintiff who seeks to compel agency
action “unreasonably delayed” under § 706(1) must “pinpoint an agency’s failure to take an action
that is both discrete and mandatory.” Center for Biological Diversity, 260 F. Supp. 3d at 21 (citing
Norton, 542 U.S. at 64); see also Cnty. Commissioners of Cnty. of Sierra v. United States Dep’t of
the Interior, No. CV 21-611 GBW/CG, 2022 WL 2754297, at *11 (D.N.M. July 14, 2022). In
determining whether an agency’s delay is unreasonable under the APA, the Court considers the
five factors set out in Qwest Commc’ns Int’l, Inc. v. F.C.C., 398 F.3d 1222, 1238–39 (10th Cir.
2005). These factors are the:
(1) extent of an agency’s delay;
(2) Reasonableness of the delay in the context of legislation “authorizing agency
action;”
(3) Consequences of the delay;
(4) Administrative difficulties bearing on the agency’s “ability to resolve [the]
issue;” and
(5) Complexity of the task “envisioned” by a court’s remand order
Id. at 1239 (citation omitted). With these factors in mind, the Court proceeds in its analysis of
Glenwood Springs’ and Garfield County’s § 706(1) claim for unreasonable delay.
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b. 	Discussion
Glenwood Springs and Garfield County contend that the Bureau “[did] not have discretion
to ignore the public interest” or otherwise disregard it statutory and regulatory obligations to
“assess the proposed [mineral] removal’s effects” on the public interest (ECF No. 32 at 19; see
also ECF No. 31 at 43). They both further identify one regulatory obligation the Bureau has not
yet discharged, given its knowledge that Rocky Mountain is mining “suspected” common variety
minerals: its duty to conduct the “required determinations” under the common variety statutes and
regulations regarding Rocky Mountain’s mining operations; that is, to complete the DCV
Investigation (ECF No. 32 at 19-20; see also ECF No. 31 at 45, 47). In sum, according to
Glenwood Springs and Garfield County, the Bureau has made no determinations and engaged in
no analysis regarding Rocky Mountain’s removal of the suspected common variety minerals (See
ECF Nos. 32 at 20, 31 at 47). In response to this argument, the Federal Defendants contend that
Glenwood Springs and Garfield County do not seek to bring “any claim” to force the Federal
Defendants to take any agency actions to allow Rocky Mountain’s sale of common variety
minerals (ECF No. 33 at 7-8). Nonsense.
First, Glenwood Springs and Garfield County clearly seek to enforce what they contend is
the Bureau’s regulatory obligation to make the “required determinations” that Rocky Mountain is
mining common variety minerals (ECF No. 32 at 20). The allegations in the Complaint and
Complaint-in-Intervention are clear:
Given the nearly two years between constructive knowledge and
submission 	of 	the 	expansion 	plan, 	further 	delay 	of 	the
[Determination 	of 	Common 	Variety 	Mineral 	Investigation] 	is
unreasonable, especially considering the decisions relating to the
expansion plan will not be completed for at least another year or
more.
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(ECF No. 19 at 17-18 ¶ 42; see also ECF No. 1 at 31 ¶ 103). The Bureau has simply incorrectly
read the Glenwood Springs’ and Garfield County’s briefs, Complaint, and Compliant-in-
Intervention.
Second, the Federal Defendants concede in their Reply brief that at the time of its filing in
October 2021, the Bureau had not yet determined whether Rocky Mountain was mining common
variety minerals (ECF No. 22 at 6-7). The Reply states that the Bureau had not “determined that
the mining operation [was] extracting common variety minerals,” and that enforcement actions
“depend[ed] on [the] completion of the pre-enforcement mineral examination” (Id. at 7). These
statements are wholly consistent with the Bureau’s statements at oral argument. When asked
whether—approximately one year after the Reply brief was filed—there were any factual updates
regarding 	the 	Bureau’s 	DCV 	Investigation 	of 	Rocky 	Mountain’s 	mining 	operations, 	the
government’s answer was straightforward: the DCV Investigation was ongoing, and the Bureau
had reached no conclusions about Rocky Mountain’s operations. And the Bureau had no particular
timeline for determining whether Rocky Mountain was mining common variety minerals.
If the Federal Defendants’ own statements were insufficient to reach the conclusion that
the completion of its mineral investigation has been unreasonably delayed, Qwest’s application
compels it. Of course, before applying the Qwest factors the Court must first determine, as a
threshold matter, whether completion of the mineral investigation is a discrete and mandatory task.
Norton, 542 U.S. at 64 n.1. As Glenwood Springs and Garfield County argue, it is (See, e.g., ECF
Nos. 32 at 20, 31 at 47).
Discrete and Mandatory Agency Action. Glenwood Springs and Garfield County point to
the escrow provision in 43 C.F.R. § 3809.101 as the Bureau’s “justification” for its delay in
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completing the mandatory DCV Investigation (See ECF Nos. 31 at 50, 32 at 20-21). The Bureau
is not entitled to justify these delays, Garfield County’s argument goes, because its duty to make
mineral determinations is “mandatory” (ECF No. 32 at 21). Assuming that Rocky Mountain’s pre-
existing mining plan and operations were compliant with § 3809.101(a)’s description of
“initiate[d] operations,” § 3809.101 contemplates an affirmative obligation imposed on the
Bureau. Indeed, under § 3809.101(a), the Bureau must “prepare[] a mineral examination report.”
In the context of mining suspected common variety minerals with an established escrow account,
the regulation mandates that the Bureau will prepare a mineral examination: “Until the mineral
examination report . . . is prepared, [the Bureau] will . . . approve a plan of operations for the
disputed mining claim . . . .” § 3809.101(b) (emphasis added).
This regulatory language demonstrates that § 3809.101 establishes that completion of the
Bureau’s mineral examination for a specific mining operation is a discrete and mandatory action.
See Norton, 542 U.S. at 64 (defining “failure to act” within the meaning of § 551(13) as failure to
take action with “same characteristic of discreteness” shared by statute’s preceding terms); see
also Am. Fin. Benefits Ctr. v. Fed. Trade Comm’n, No. 17-04817, 2018 WL 3203391, at *6 (N.D.
Cal. May 29, 2018) (concluding discreteness inquiry satisfied where agency’s grant of authority
included “investigating potential law violations”). Under the regulation, the Bureau must complete
a mineral examination. See § 3809.101(a). This satisfies § 706(1)’s “mandatory” requirement,
regardless of an investigation’s outcome. See Bennett, 520 U.S. at 172 (“It is rudimentary
administrative law that discretion as to the substance of the ultimate decision does not confer
discretion to ignore the required procedures of decisionmaking.” (citation omitted)). And although
§ 3809.101(a) does not state that the Bureau “shall” or “must” complete a mineral investigation
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within a set timeframe, the Court may infer that completion of the investigation is mandatory based
on the regulation’s framework. See Raymond Proffitt Found. v. U.S. E.P.A., 930 F. Supp. 1088,
1099 (E.D. Pa. 1996) (concluding that statutory framework “enable[d]” the court “to infer a
reasonable time frame within which” an agency must act). Moreover, in July 2019 the Bureau
represented that it “ha[d] already compressed the DCV schedule down to around one year” (ECF
No. 31-11 at 4). Reading § 3809.101(a) to impose a mandatory obligation on the Bureau is wholly
consistent with the remainder of the regulation: mining operations that do not meet § 3809.101(b)’s
“interim authorization” requirements cannot initiate operations until the Bureau completes its
investigation. See, e.g., Miranda v. Gonzales, No. 08-20682-CIV, 2008 WL 11417802, at *2 (S.D.
Fla. Aug. 25, 2008) (“Without APA relief, [the agency] could withhold a decision indefinitely.”);
see also Saleem v. Keisler, 520 F. Supp. 2d 1048, 1055 (W.D. Wis. 2007) (“The duty to act is no
duty at all if the deadline is eternity.” (quotation omitted)).
Accordingly, 	the 	Court 	concludes 	that 	§ 	3809.101 	satisfies 	§ 	706(1)’s 	threshold
requirements. See Norton, 542 U.S. at 64 n.1. The Court now applies the Qwest factors to the
Bureau’s delay in completing its DCV Investigation of Rocky Mountain’s mining operation.
Extent of Delay. The first Qwest factor considers the extent of an agency’s delay. 398 F.3d
at 1239. Glenwood Springs and Garfield County argue this factor weighs in favor of concluding
the Bureau has unreasonably delayed completion of the DCV Investigation (ECF Nos. 31 at 47,
32 at 21-22). The Court agrees. Both parties allege that the Bureau has suspected for years that
Rocky Mountain has been mining common variety minerals (See, e.g., ECF Nos. 1 at 31 ¶ 193, 19
at 17-18 ¶ 42). The Bureau has been, by the plain terms of the Escrow Agreement, investigating
Rocky Mountain’s mining operations since 2019 (See ECF No. 32-1 at 2). And as discussed above,
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the Bureau stated at oral argument that it has not, as of October 2022, completed its DCV
Investigation of Rocky Mountain’s mining operations. This indicates the Bureau’s delay in
completing the DCV Investigation has been extensive.
Reasonableness of Delay in Legislative Context. The second Qwest factor considers the
reasonableness of an agency’s delay in the context of legislation authorizing agency action. See
398 F.3d at 1239. The Court agrees with Garfield County that—for the same reason the Bureau’s
delay has been extensive—it is unreasonable on its face (ECF No. 32 at 22). Accepting them as
true, Glenwood Springs’ and Garfield County’s allegations make this clear (See, e.g., ECF Nos. 1
at 31 ¶ 193, 19 at 17-18 ¶ 42). See also Holt, 46 F.3d at 1002; Mayfield, 826 F.3d at 1255.
Turning to the legal basis for the Bureau’s delay, Glenwood Springs correctly observes that
the governing regulations compel the conclusion that judicial intervention would be appropriate
(ECF No. 31 at 47-48). Section 3809.101 does not set forth a specific timeframe by which the
Bureau must complete the DCV Investigation. See 43 C.F.R. § 3809.101(a). However, the Tenth
Circuit determined in Babbitt that, when an agency has no “concrete deadline establishing a date
by which it must act,” the APA’s “general admonition” that agencies act “within a reasonable
time” controls. 174 F.3d at 1190 (quoting 5 U.S.C. § 555(b)). See also Fort Sill Apache Tribe v.
Nat’l Indian Gaming Comm’n, 103 F. Supp. 3d 113, 119 (D.D.C. 2015) (“The APA imposes a
general but nondiscretionary duty upon an administrative agency to pass upon a matter presented
to it within a reasonable time.” (quotations omitted)). Thus, when an agency is required to act
under the APA “within an expeditious, prompt, or reasonable time,” § 706 leaves courts with “the
discretion to decide” whether a delay is unreasonable. Id. Application of that discretion in this case
is simple. Years long delay—with no factual developments in the DCV Investigation since it
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allegedly began—in completing Rocky Mountain’s mineral investigation is unreasonable.
AlShamsawi v. Holder, No. 2:10-CV-194 CW, 2011 WL 1870284, at *3 (D. Utah May 16, 2011)
(applying second Qwest factor and concluding that an “indefinite delay . . . is not reasonable”); but
cf. Wyandotte Nation v. Salazar, 939 F. Supp. 2d 1137, 1152 (D. Kan. 2013) (finding second Qwest
factor weighed in agency’s favor where agency “made efforts to move [an] application forward”).
Consequences of the delay. The third Qwest factor considers the consequences of an
agency’s delay. See 398 F.3d at 1239. Another easily resolved issue. The Court agrees with
Glenwood Springs and Garfield County that the Bureau’s failure to complete the DCV
Investigation has carried severe consequences for the people and land of Glenwood Springs (ECF
Nos. 31 at 48, 32 at 22). The environmental and public health effects of Rocky Mountain’s
continued operations are, in the words of Garfield County, “dire” (ECF No. 32 at 22). Of course,
the Bureau may conclude—whenever it finishes the DCV Investigation—that Rocky Mountain is
not mining for any common variety purpose. But future possibilities do not excuse documented
and ongoing harm. Cf. Wyandotte Nation, 939 F. Supp. 2d at 1152 (distinguishing case from others
where consequences of delay “present[ed] harm to human health and welfare”); see also Western
Rangeland Conservation Ass’n v. Zinke, 265 F. Supp. 3d 1267, 1289–90 (D. Utah 2017)
(concluding “consequences of delay” factor favored conclusion that agency unreasonably delayed
where delay involved “tangible human cost”). At this stage of litigation, based on allegations in
the Complaint, the Complaint-in-Intervention, and relevant exhibits, the Court has no difficulty
concluding this factor favors Glenwood Springs and Garfield County.
Administrative Difficulty. The fourth Qwest factor looks to whether an agency’s resolution
of the issue poses administrative difficulties. See 398 F.3d at 1239. Completing the DCV
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Investigation of Rocky Mountain’s mining operation poses none. As Glenwood Springs argues,
the Bureau has had notice of Rocky Mountain’s suspected mining of common variety minerals for
years (ECF No. 31 at 48). And the Bureau’s investigation of Rocky Mountain’s mining operations
carries no indicia of administrative difficulty. Cf. Wyandotte Nation, 939 F. Supp. 2d at 1153
(concluding agency task was administratively difficult where “the problem seem[ed] to stem from
a lack of resources”). Even giving consideration to the “practical difficulty” of completing the
mineral investigation, the Court agrees with Garfield County that the Bureau has acquired enough
information that completing the DCV Investigation at this stage would require a nominal amount
of work (ECF No. 32 at 23). See also Western Rangeland, 265 F. Supp. 3d at 1291 (quoting In re
Int’l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)). Moreover, the Federal
Defendants have identified nothing to indicate that expediting its mineral investigation would
affect any other agency activities of a higher priority. See id. Given that any administrative
difficulties for the Bureau’s ability to complete the DCV Investigation lose persuasive force as
“delay progresses, and must always be balanced against the potential for harm,” the Court finds
this factor favors concluding the Bureau has unreasonably delayed completing its mineral
investigation. Cutler v. Hayes, 818 F.2d 879, 898 (D.C. Cir. 1987).
Complexity of remanded action. The fifth Qwest factor looks to the complexity of the “task
envisioned by a court’s remand order. 398 F.3d at 1239. The task “envisioned” by the Court is
simple: complete the DCV Investigation that the Bureau began in 2019 (See ECF No. 32-1 at 2).
Glenwood Springs notes that completion of the DCV Investigation would require data collection
and analysis (ECF No. 31 at 48). Other courts have determined that evaluation of this factor
requires “frank acknowledgment” that compelling agency action is “necessarily disruptive of
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agency priorities and programming.” Western Rangeland, 265 F. Supp. 3d at 1295. But, unlike the
breath of the plaintiff’s request to remove approximately 3,500 horses across 10 states in Western
Rangeland, see id., Glenwood Springs and Garfield County’s requested relief is simple: complete
an investigation that began at least three years ago into a company with whom the Bureau has held
a relationship for years longer.
* * *
The Court is mindful that in many circumstances deference to agency action and
decisionmaking is appropriate. Especially where, as here, the Bureau’s DCV Investigation
involves “technical and scientific matters” within its area of expertise. San Juan Citizens All. v.
Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011) (citation omitted). However, expertise does not
immunize agencies from delays in its exercise—especially, where, as here, the Bureau has made
no developments in its years long DCV Investigation into Rocky Mountain’s mining operations.
For the reasons set forth above, all five Qwest factors favor Glenwood Springs, Garfield
County, and the conclusion that the Bureau has unreasonably delayed in completing its mineral
investigation. Of course, at this stage the Court is not reaching the merits of Glenwood Springs’
and Garfield County’s unreasonable delay claim. It simply concludes that, under either Federal
Rule of Civil 12(b)(1) or 12(b)(6), the parties’ claims have survived the Federal Defendants’
Motion to Dismiss. Nonetheless, if the parties’ claims were before the Court in a different
procedural posture, its remedy would be guided by a basic principle: “There is a point when the
court must let the agency know, in no uncertain terms, that enough is enough.” In re International
Chemical Workers, 958 F.2d at 1150 (quotation omitted).
IV. CONCLUSION
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Consistent with the above analysis, the Federal Defendants’ Motion to Dismiss (ECF No.
30) is GRANTED in part and DENIED in part. Glenwood Springs’ and Garfield County’s first
claims are DISMISSED. The Court DENIES the Federal Defendants’ Motion to Dismiss
Glenwood Springs’ and Garfield County’s second claims. Finally, once the Bureau’s DCV
Investigation is complete, the Federal Defendants shall file a status update notifying the Court of
the same within 14 days of completion.
DATED this 8th day of November 2022.
BY THE COURT:
____________________________________
Charlotte N. Sweeney
United States District Judge
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