124 F.3d 1210 (10th Cir. 1997), 96-1460, Friends of the Bow v. Thompson

Docket Nº:96-1460.
Citation:124 F.3d 1210
Party Name:FRIENDS OF THE BOW, Wyoming Outdoor Council, Leila R. Stanfield, Donald J. Duerr, and Jeff Kessler, Plaintiffs-Appellants, v. Tom L. THOMPSON, Deputy Regional Forester, U.S. Forest Service Rocky Mountain Region, Jack Ward Thomas, Chief, U.S. Forest Service, and the United States Forest Service, Defendants-Appellees, and Big Horn Lumber Co., Inc., I
Case Date:August 27, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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124 F.3d 1210 (10th Cir. 1997)

FRIENDS OF THE BOW, Wyoming Outdoor Council, Leila R.

Stanfield, Donald J. Duerr, and Jeff Kessler,



Tom L. THOMPSON, Deputy Regional Forester, U.S. Forest

Service Rocky Mountain Region, Jack Ward Thomas,

Chief, U.S. Forest Service, and the

United States Forest Service,



Big Horn Lumber Co., Inc., Intervenor.

No. 96-1460.

United States Court of Appeals, Tenth Circuit

August 27, 1997

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Mark Squillace, Laramie, WY (Reed Zars, Laramie, WY, with him on briefs) for Plaintiffs-Appellants.

Joan M. Pepin, Department of Justice, Washington, DC, (Lois J. Schiffer, Assistant Attorney General, Washington, DC, Henry L. Solano, United States Attorney, Denver, CO, Robert D. Clark, Assistant United States Attorney, Denver, CO, Robert L. Klarquist, Department of Justice, Washington, DC, and Kenneth Capps, Department of Agriculture, Denver, CO, with her on briefs) for Defendants-Appellees.

Scott W. Horngren, Haglund & Kirtley, Portland, OR, (Michael G. Neff, Haglund & Kirtley, Portland, OR, and Kim E. Ikeler, Krendl, Horowitz & Krendl, Denver, CO, and with him on briefs) for Intervenor.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

This case involves a dispute concerning the United States Forest Service's approval of a timber sale, known as the "Banner Timber Sale," in the Medicine Bow National Forest. Friends of the Bow ("Friends"), an environmental group, objected to the sale, and brought suit in the District of Colorado against the Forest Service and the two Forest Service officials who approved the sale. Bighorn Lumber Co., the purchaser of the sale, intervened to defend the sale. Specifically, Friends claims that: (1) approval of the sale was "arbitrary and capricious" under the Administrative Procedures Act; (2) the Forest Service should have conducted a supplemental environmental assessment based on new evidence concerning the forest's sustainable yield; (3) the Forest Service did not respond specifically to issues raised by Friends in their administrative appeal of the decision, as is required by 5 U.S.C. § 555(e) (1994); and (4) the Forest Service violated 5 U.S.C. § 555(b) (1994) in failing to respond to Friends' request that the Service prepare a supplemental environmental assessment. The district court granted summary judgment against Friends on all four claims, and Friends now appeals. We have jurisdiction under 28 U.S.C. § 1291 (1994) and affirm.

Statutory Background

The factual background of this case is best understood in the context of the relevant statutes, as the most relevant facts are the various procedures the United States Forest Service has gone through in attempting to conduct the Banner sale, and the various objections that Friends has made to those procedures based on the relevant statutes. Accordingly, we first set forth the applicable statutory requirements before discussing the factual background of the case.

There are three statutes relevant to this appeal: the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.; the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq.; and the Administrative Procedure Act of 1946 ("APA"), 5 U.S.C. § 551 et seq. We will discuss each statute in turn.

  1. The National Environmental Policy Act

    NEPA sets forth "a set of 'action-forcing' procedures that require that agencies take a 'hard look' at environmental consequences." Robertson v. Methow Valley Citizens' Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). Importantly, the statute does not impose substantive limits on agency conduct. Id. Rather, once environmental concerns are "adequately identified and evaluated" by the agency, NEPA places no further constraint on agency actions. Id.

    The primary procedure that NEPA establishes to ensure that agencies take a "hard look" at the environmental consequence of their actions is the Environmental Impact Statement ("EIS"). An EIS is a detailed statement of the environmental impact of a proposed action, and must be prepared whenever a federal agency proposes a "major Federal action[ ] significantly affecting the

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    quality of the human environment." 42 U.S.C. § 4332 (1994).

    The NEPA makes no mention of Environmental Assessments ("EAs"), which are the documents agencies prepare in preparation for less significant agency actions. However, the Council on Environmental Quality (CEQ) has issued regulations that govern agency decisions regarding whether to prepare an EIS, and those regulations also outline the requirements for preparing an EA. 40 C.F.R. § 1500 et seq. The Supreme Court has stated that these regulations are entitled to "substantial deference." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989).

    The CEQ regulations provide that an agency may prepare an EA to determine whether an EIS is necessary. 40 C.F.R. § 1501.4, 1508.9(a) (1996). If the EA indicates that the proposed action will not significantly impact the environment, the agency may make a finding of no significant impact, or "FONSI." Id. § 1501.4(e). Where a FONSI is made, the agency need not prepare a full EIS. Id. § 1501.4(e); see Park County Resource Council v. United States Dep't of Agric., 817 F.2d 609, 621 (10th Cir.1987), overruled in other respects by Village of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970, 973 (10th Cir.1992) (en banc).

    When an EIS has been prepared for an action, the CEQ regulations encourage the agency to incorporate its conclusions into EAs prepared for all subsequent and smaller actions. 40 C.F.R. § 1502.20 (1996). However, the regulations require agencies formally to supplement the EIS through a Supplemental Environmental Impact Statement (SEIS) only when "[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns," id. § 1502.9(c)(1)(i), or when "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Id. § 1502.9(c)(1)(ii).

  2. The National Forest Management Act

    The NFMA requires the United States Forest Service (the "Forest Service" or "USFS") to develop Land and Resource Management Plans ("Forest Plans") for the management of National Forests. 16 U.S.C. § 1604(a), (b) (1994). Forest Plans are required to "provide for multiple use and sustained yield of the products and services obtained [from national forests] ...," and "determine forest management systems [and] harvesting levels" to be maintained on the relevant forest. Id. § 1604(e). Such plans must be revised at least every fifteen years, and must be prepared by an interdisciplinary team. Id. § 1604(f)(5), (f)(3).

    Additionally, the NFMA requires the Forest Service to limit the sale of timber from each national forest to "a quantity equal to or less than a quantity which can be removed from such forest annually in perpetuity on a sustained-yield basis." Id. § 1611(a). This figure is known as the forest's long-term sustained yield capacity ("LTSYC"). The Service is also required to set annual harvest levels, or "allowable sale quantit[ies]" ("ASQs") based on sustainable yield principles. Id. § 1604(e)(2). In any given year, the Service may exceed the annual ASQ for a particular forest, "so long as the average sale quantities of timber from such national forest over the decade covered by the plan do not exceed such quantity limitation." Id. § 1611(a). The ASQ may be modified, but only through a revision of the forest plan, with full public participation. Id. § 1604(d).

  3. The Administrative Procedures Act

    The APA governs agency procedures in all administrative proceedings. Under the APA, agency functions are characterized as either "rulemakings" or "adjudications." 5 U.S.C. § 551 (1994) (defining "adjudication" as the formulation of an "order," and "order" as the "whole or part of a final disposition ... other than rule making but including licensing"). With regard to informal adjudications, i.e., those not conducted on the record after the opportunity for an agency hearing, "interested persons" are entitled to a "brief statement of the grounds for denial" when an agency denies "a written application, petition, or other request ... made in connection with any agency proceeding." Id. § 555(e). Further, when an interested person makes a request for agency action, the person is entitled to

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    have the agency conclude the matter presented to it "within a reasonable time." Id. § 555(b).

    We have held that

    [t]he statement of grounds [under 5 U.S.C. § 555(e) ] must be sufficiently detailed that the reviewing tribunal can appraise the agency's determination under the appropriate standards of review.... [T]he statement of grounds must be sufficiently detailed that we can determine whether the [agency] considered the relevant factors and that the choice it made based on those factors is a reasonable one.

    City of Gillette v. FERC, 737 F.2d 883, 886 (10th Cir.1984).

    When an interested...

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