Heartwood, Inc. v. U.S. Forest Service, 03-3267.

• Decision Date: 25 August 2004
• Docket Number: No. 03-3267.,03-3267.
• Citation: 380 F.3d 428
• Parties: HEARTWOOD, INC., a not-for-profit corporation; Jim Bensman, Plaintiffs/Appellants, v. UNITED STATES FOREST SERVICE; United States Fish and Wildlife Service, Defendants/Appellees, Mercantile Lumber Co., Inc.; Mark Twain Timber Purchasers Group, Intervenor Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 428

380 F.3d 428

HEARTWOOD, INC., a not-for-profit corporation; Jim Bensman, Plaintiffs/Appellants, v. UNITED STATES FOREST SERVICE; United States Fish and Wildlife Service, Defendants/Appellees, Mercantile Lumber Co., Inc.; Mark Twain Timber Purchasers Group, Intervenor Defendants/Appellees.

No. 03-3267.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2004.

Filed: August 25, 2004.

Appeal from the United States District Court for the Eastern District of Missouri, Charles A. Shaw, J Matt Kenna, Kenna & Hickcox, Durango, CO, Kathleen Green Henry, Great Rivers Environmental Law Center, St. Louis, MO, for Plaintiffs/Appellants.

Ellen J. Durkee, Susan L. Pacholski, Myesha K. Braden, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, Michael A. Price, U.S. Attys. Office, Cape Girardeau, MO, Susan M. Henderson, Eileen Sobeck, U.S. Dept. of Justice, Wildlife and Marine Resources Section, Washington, DC, for Defendants/Appellees.

Searcy W. Harrell, Jr., Harrell & Lindsey, Camden, AR, Thomas Richard Lundquist, Joseph Michael Klise, Crowell & Moring, Washington, DC, for Intervenor Defendants/Appellees.

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Heartwood, Inc. and Jim Bensman (referred to collectively as Heartwood) appeal the district court's¹ grant of summary judgment in favor of the United States Forest Service (USFS) and the United States Fish and Wildlife Service (FWS). For the reasons stated below we affirm the district court.

I.

Heartwood challenges the USFS's approval of the Eastwood II Project located in the Mark Twain National Forest (MTNF) in Missouri. The project includes plans to harvest timber. Heartwood argues that approval was inappropriate because the USFS violated the National Environmental Policy Act (NEPA), see 42 U.S.C. §§ 4321-4370f, by approving the project without preparing an environmental impact statement (EIS), and because the USFS violated the Endangered Species Act (ESA), see 16 U.S.C. §§ 1531-1544, by not conducting new surveys at the project area for the endangered Indiana bat.

II.

NEPA requires that federal agencies follow certain procedures to examine the environmental impact of their proposed actions. If an agency proposes a "major Federal action [that] significantly affect[s] the quality of the human environment," NEPA requires that the agency prepare an EIS that, among other things, details "the environmental impact of the proposed action." 42 U.S.C. § 4332(C). An EIS, however, is not required if the agency first prepares an environmental assessment (EA) providing "sufficient evidence and analysis" that no EIS is necessary because the proposed action will not significantly affect the quality of the human environment. See 40 C.F.R. § 1508.9. In those circumstances, the agency issues a finding of no significant impact (FONSI) rather than preparing an EIS. 40 C.F.R. § 1508.13.

In some cases, an agency will compile a large programmatic EIS and, as specific components of the program are ready to be implemented, complete a site-specific EIS or EA that expands on the larger EIS. The subsequent EIS or EA need "only summarize the issues discussed in the broader statement ... [and] concentrate on the issues specific to the subsequent action." 40 C.F.R. § 1502.20. The Council on Environmental Quality (CEQ) permits this procedure to avoid "repetitive discussions of the same issues and to focus on the actual issues ripe for decision." Id.

Heartwood argues that the USFS violated NEPA by failing to prepare a site-specific EIS for the Eastwood II project. We require that an agency, in reaching its conclusion to forego an EIS, take a "hard look" at the project's potential impacts, identify the "relevant areas of environmental concern," make a "convincing case that the impact was insignificant," and, if the impact is determined to be significant, convincingly establish that changes in the project will sufficiently reduce that impact. Audubon Soc'y of Cent. Ark. v. Dailey, 977 F.2d 428, 434 (8th Cir.1992). It is undisputed that the USFS completed a programmatic EIS that included all of its proposed projects in the MTNF. With respect to the Eastwood II project, the USFS considered multiple alternatives (including a no-action alternative), addressed public concerns about the project in an EA, and issued a decision notice that included a FONSI.

The CEQ has promulgated regulations detailing how agencies should fulfill their NEPA obligations. The CEQ's regulations list ten considerations that agencies should take into account when taking a "hard look" at whether a project will have "significant" environmental impacts, including the "degree to which the action may adversely affect an endangered or threatened species," the "degree to which the effects on the quality of the human environment are likely to be highly controversial," the "degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks," and the "[u]nique characteristics of the geographic area such as proximity to ... park lands, ... [or] wild or scenic rivers." 40 C.F.R. § 1508.27(b)(3), (4), (5), (9). If an agency takes a "hard look" and determines that the proposed action has no "significant" environmental impact, an EIS is unnecessary.

A.

The CEQ regulations list the "degree to which the action may adversely affect endangered or threatened species" as one of the matters that ought to be considered in deciding whether to issue an EA or an EIS. 40 C.F.R. § 1508.27(b)(9). Prior to reaching its decision, the USFS prepared a biological evaluation that concluded that the Eastwood II project area had no known caves or mines that could serve as winter habitat (hibernacula) for Indiana bats. At the time that the evaluation was completed, the nearest capture of a reproductively active female Indiana bat was made approximately 80 miles north of the project area and the nearest maternity colony was 100 miles west of the project area. Although a recent timber project led to the discovery of a maternity colony 35 miles northeast of the Eastwood II site, this information was not known at the time that the USFS made its decision to approve the Eastwood II project.

As part of formal consultation with the USFS, the FWS completed a biological opinion (BO) for the Eastwood II project that concluded that "adverse effects are likely to occur to the Indiana bat," but that these effects were "not likely to jeopardize [the bat's] continued existence." The BO explained that the "only potential impact to the species [within the Eastwood II project area] would be during spring and fall migration" and could occur from removing potential roost trees and prescribed fires when bats are using the trees or when winds could drift smoke into a hibernaculum 14 miles away. The BO, however, concluded that "[t]he likelihood of cutting a tree containing an individual roosting Indiana bat ... is anticipated to be extremely low because of the large number of suitable roost trees present on the MTNF and the rarity of the species" in the area. And, while "[d]irect mortality or injury to individuals or small groups of roosting bats may occur during the accidental burning of ... trees that may harbor undetected roosts (if, in fact, such roosts occur within the proposed action area), or removal of potential roosting trees during and after the prescribed fires," "the effects of prescribed burning is expected to be minimal due to the low density of Indiana bats documented within the project area and the 14-mile distance to the closest occupied hibernacula."

After the FWS prepared the BO, the USFS evaluated the severity of the effect of the project on the Indiana bat and determined that the project would "have no additional effects beyond those identified" in the BO and a previous biological assessment, which both concluded that the "action [was] not likely to jeopardize the continued existence of the Indiana bat" and that the effects of the project would be minimal. The USFS concluded that the "possibility of [harming] an individual Indiana bat or bats is remote." Specifically, "the possibility of direct impacts to Indiana bats is extremely low, and the possibility of indirect impacts (removal of suitable roost trees or change in preferred foraging acres) is also low."

The above findings support the USFS's ultimate "finding of no significant impact." The operative word here is "significant." While the FWS detailed some potential impacts, it found that they were unlikely to occur and would not have a significant impact on the species. The USFS used its expertise, along with its consultation with the FWS, to conclude that the degree to which the project may adversely affect the endangered Indiana bat was small. Cf. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374-77, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

The BO requires the USFS to implement "all pertinent reasonable and prudent measures ... to minimize the impact of the anticipated incidental take of Indiana bats" in order to insure that any harm that does occur is not significant. "Take" is defined under ESA to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. § 1532(19). By approving the Eastwood II project, the USFS did not give itself a green light to disregard the project's impact on the Indiana bat. Should that impact turn out to be significantly adverse, the USFS will be required to adjust the project accordingly.

B.

The CEQ regulations require that an agency consider the degree to which the effects of projects are "likely to be highly controversial" and the extent to which their possible effects are "highly uncertain or involve unique or unknown risks." 40 C.F.R. § 1508(b)(4), (5). The term "`controversial' refers to the existence of a `substantial dispute ... as to the size, nature, or effect of...