Art v. Nature: The Continuing Saga of Christo’s “Over The River” Project

Background

In 1996, the Bulgarian-American artist Christo Javacheff, better known as Christo, and his now-deceased wife Jeanne-Clause Denat approached the U.S. Bureau of Land Management (“BLM”) seeking permission for a temporary art installation over a portion of the Arkansas River. If completed, The Over The River Project (“OTR”) will suspend nearly six miles of silver fabric above eight separate areas of the Arkansas River between Cañon City and Salida, Colorado. One of the installation sites includes the Arkansas Canyonlands Area of Critical Environmental Concern (“ACEC”). Since its inception, the project has been controversial. It has been opposed by environmental groups including Rags Over Arkansas River, Inc., (“ROAR”), formed specifically to fight the project. Christo has said that he holds no animosity toward those fighting his project; rather he finds it “invigorating”.

Christo’s vision for OTR is that it will highlight the banks of the river. Those viewing the fabric panels from the river, will view the surrounding mountains and sky through the translucent fabric. While those viewing from above will see a reflection of the sky undulating in the breeze. OTR lists among its supporters various chambers of commerce, the Arkansas River Outfitter’s Association, and Colorado Governor John Hickenlooper.

Opponents’ vision of OTR is starkly different. They fear permanent defacement of riverbanks, impediment of fishing access for eagles, and a barrier for elk, pronghorn, and deer trying to reach the river. They also see the impact of the expected 400,000 human visitors as a problem causing traffic congestion and an increase in human and solid waste on rural systems ill-equipped to handle it.

In July 2010, BLM released a Draft Environmental Impact Statement (“DEIS”) for public comment. Over 4,500 individual comments were received on the DEIS. BLM considered these comments prior to issuing the Final Environmental Impact Statement (“FEIS”) in July 2011. In November of that year, BLM issued a Record of Decision (“ROD”) authorizing the project. Following an appeal by two individuals and the Quiet Use Coalition, the U.S. Department of the Interior (“DOI”) Board of Land Appeals issued a final agency decision in June 2013 upholding the ROD. ROAR filed suit in the U.S. District Court for the District of Colorado. Federal District Judge William Martinez ruled against ROAR on January 2nd, 2015.

Issue

ROAR’s action alleged BLM, DOI, and four officials from those agencies violated the Administrative Procedure Act (“APA”) when they failed to comply with the National Environmental Policy Act (“NEPA”) and the Federal Land Policy and Management Act (“FLPMA”). The Over River Corporation, formed by Christo to complete the project, intervened in the action as respondents.

This action challenged the BLM and DOI actions as, “. . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Recent common law from the 10th Circuit narrows the standard of review, requiring deference to a federal agency where the challenged actions involve scientific issues within the agency’s expertise.

To determine if an agency decision is arbitrary and capricious courts consider whether the agency: 1) relied on factors Congress did not intend, 2) failed to consider an important aspect of the issue, 3) offered an explanation for the decision that is contrary to the evidence available, and 4) made a decision that is implausible beyond the explanation of a difference professional opinion.

The court found that BLM did not act arbitrarily or capriciously with regard to NEPA.

ROAR raised two challenges to the BLM and DOI decisions under NEPA. First, ROAR alleged that BLM failed to adequately consider the impact of OTR on the bighorn sheep population in the area, ROAR also alleged that BLM failed to consider the impacts of traffic issues, both for construction and an influx of visitors.

On both of these issues, the court held for the BLM, finding that the goal of NEPA is not to enforce any particular environmental policy goals. Rather NEPA only requires that agencies take a “hard look” at environmental impacts of projects. NEPA serves to protect against uninformed environmental decisions, rather than their potential value or harm.

ROAR alleged that BLM failed to consider the full impact of OTR on the bighorn sheep population and that it failed to make correct findings when it acknowledged that it could not, with certainty, predict the impact on the population due to the novelty of the OTR project. The herd-specific studies BLM relied on were over fifteen years old, and ROAR claimed they were obsolete because the lifespan of a sheep is only nine years. Additionally, ROAR claimed that a study of the impact of helicopter over-flight in the Grand Canyon on sheep populations was not adequately analogous to the present situation. The court rejected both lines of reasoning, finding that ROAR failed to point to any more-relevant scientific information upon which BLM could have relied.

ROAR made three arguments against BLM’s consideration of traffic mitigation. Specifically ROAR objected to the method of traffic modeling, traffic modifications that were not reflected in the FEIS, and a failure to mitigate traffic issues for the duration of OTR.   The court rejected all of these arguments.

After BLM initially used a widely criticized traffic report, it created its own report with the Colorado Department of Transportation. The Court found that the process BLM used to model traffic impacts was reasonable, meeting the NEPA requirement. Further, one of the traffic modifications not included in the FEIS was the removal of a visitor center, and an adjacent 900-space parking lot. The court found that removal of project features that reduced environmental impacts did not compel BLM to review the FEIS as ROAR argued. Finally, on the issue of the lack of traffic mitigations, the court considered the precedent cited by ROAR in Dine Citizens Against Ruining Our Environment v. Klein. The Dine court held that an agency finding of no significant environmental impact from drilling operations based on a yet-to-be-written mitigation plan was arbitrary and capricious. The court in the present case, however, found the situation was significantly different because the FEIS contained thirteen separate mitigation actions related to traffic issues for OTR.

In summary, the court found that BLM’s action was not arbitrary and capricious with regard to NEPA.

The court found that BLM did not act arbitrarily or capriciously with regard to FLPMA.

ROAR alleged that the FLPMA requires BLM to “manage the public lands under principles of multiple use and sustained yield.” These twin aims ensure that land use is balanced among competing needs and that extractive or depleting activities are managed. Specifically, ROAR argued that: 1) BLM used the wrong legal standard to approve OTR, 2) that its decision was arbitrary and capricious, and that 3) the FLPMA required BLM to prioritize protection of ACECs. The court rejected all three arguments.

The FLPMA requires BLM to maintain a resource management plan (“RMP”) for areas under its stewardship. The Royal Gorge RMP covers the area proposed for OTR. ROAR argued that BLM may only approve projects that are “clearly consistent” with the RMP, rather than the looser standard of “not inconsistent” that BLM actually used. While the court found that “clearly consistent” is usually the appropriate standard, this case is unique because of the one-of-a-kind art project in a sensitive natural area. The court held that because OTR is a one-time project, not contemplated by the RMP, the agency must consider whether the project is “not inconsistent” with the RMP, and contributes to plan goals.

ROAR claimed that BLM is required to favor preservation of natural resources above all other land uses. The court reluctantly held that there is no such provision in the FLPMA, stating, “[M]uch as the Court may wish that were the case under the statute, the FLPMA requires that BLM manage the federal lands under its control for multiple uses, and this includes approving projects that could deplete resources.”

ROAR claimed that BLM could approve the portion of the project over the Arkansas Canyonlands ACEC only if it would “protect or enhance” the area. The court found that the FLPMA requires BLM to protect ACECs from “irreparable damage”. Because the installation would be temporary, the court held that ROAR failed to show irreparable damage would be done to the ACEC and that approval of temporary activities in the area was within BLM’s discretion. Lastly, because BLM is requiring the project to post a $200,000 bond to pay for mitigation after the project is removed, any damage would be merely temporary.

Conclusion

In summary, the court found that BLM did not violate either NEPA or FLPMA in approving the OTR project, and affirmed the BLM’s approval of OTR. ROAR is considering its next move in the case, including the possibility of an appeal. ROAR also has an action against the Colorado Parks board pending in the Colorado Court of Appeals.

 

The title image features the Arkansas River outside Cañon City, Colorado and is licensed under the Creative Commons Attribution Share-Alike 3.0 Unported License. The owner does not endorse this blog.

 


Sources:

Rags Over the Arkansas River, Inc. v. Bureau of Land Mgmt., No. 12–cv–0265–WJM, 2015 WL 59471, at *1-*13 (D. Colo. 2015).

Utah Envtl. Cong. v. Dale Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).

Administrative Procedure Act, 5 U.S.C. §§ 702, 704, 706 (2011).

Status Reports and Legal Update, http://www.roarcolorado.org (last visited Jan. 25, 2015).

Life and Work, http://www.christojeanneclaude.net/life-and-work (last visited Jan. 25, 2015).

Jason Blevins, Foes Vow Continued Fight Against Christo’s Over The River Project, Denver Post, January 7, 2015, at 4A.

Jason Blevins, Christo Says Opposition to “Over the River” Project is Part of the Art, Denver Post, October 17, 2013, at 4A.

OTR Legal Proceedings, http://www.overtheriverinfo.com/index.php/about-over-the-river/otr-legal-proceedings (last visited Feb. 6, 2015).

OTR Supporters, http://www.overtheriverinfo.com/index.php/otr-supporters (last visited Feb. 6, 2015).

The OTR Experience, http://www.overtheriverinfo.com/index.php/about-over-the-river/the-otr-experience (last visited Feb. 6, 2015).

Rags Over The Arkansas River, http://www.roarcolorado.org/archive/index.html (last visited Feb. 6, 2015).