Cent. SD Coop. Graz'g v. Sec'y of U.S. Dept. Agric.

• Decision Date: 15 June 2001
• Docket Number: No. 00-3567,00-3567
• Citation: 266 F.3d 889
• Parties: (8th Cir. 2001) CENTRAL SOUTH DAKOTA COOPERATIVE GRAZING DISTRICT, APPELLANT, v. SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE; CHIEF OF THE UNITED STATES FOREST SERVICE; REGIONAL FORESTER OF THE ROCKY MOUNTAIN REGION OF THE UNITED STATES FOREST SERVICE; FOREST SUPERVISOR OF THE NEBRASKA NATIONAL FOREST OF THE UNITED STATES FOREST SERVICE, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 889

266 F.3d 889 (8th Cir. 2001)

CENTRAL SOUTH DAKOTA COOPERATIVE GRAZING DISTRICT, APPELLANT, v. SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE; CHIEF OF THE UNITED STATES FOREST SERVICE; REGIONAL FORESTER OF THE ROCKY MOUNTAIN REGION OF THE UNITED STATES FOREST SERVICE; FOREST SUPERVISOR OF THE NEBRASKA NATIONAL FOREST OF THE UNITED STATES FOREST SERVICE, APPELLEES.

No. 00-3567

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 15, 2001

Filed: September 24, 2001

Appeal from the United States District Court for the District of South Dakota. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Murphy, Heaney, and Beam, Circuit Judges.

Beam, Circuit Judge.

Central South Dakota Cooperative Grazing District (Grazing District) appeals the district court's¹ grant of summary judgment affirming administrative action by the United States Department of Agriculture Forest Service (Forest Service).² The Grazing District argues that the Forest Service violated the National Environmental Policy Act of 1969 (NEPA), specifically, 42 U.S.C. § 4332, because it failed to consider reasonable alternatives to reducing grazing levels in the Fort Pierre National Grasslands (Grasslands), and that its methodologies for assessing species populations and range conditions were so unreliable that they made its choice of stocking levels arbitrary and capricious. The Forest Service responds, in part, by asserting that the Grazing District lacks standing to pursue its NEPA claim. We affirm the district court's grant of summary judgment in favor of the Forest Service.

I. BACKGROUND

The National Forest Management Act of 1976 (NFMA), 16 U.S.C. §§ 1600 et seq., provides for a two-phase forest planning process. First, the Forest Service is to develop a Land and Resource Management Plan (forest plan), which is a "general planning tool" that "provides guidelines and approved methods by which forest management decisions are to be made." Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994). Forest plans are to be prepared in accordance with NEPA. 16 U.S.C. § 1604(g)(1); Robertson, 28 F.3d at 758. Second, the Forest Service implements the forest plan through site-specific actions, assessing each such action to determine its compatibility with the forest plan, NEPA,³ and other applicable law. Sierra Club v. United States Forest Serv., 46 F.3d 835, 837 (8th Cir. 1995) [hereinafter U.S. Forest Service]. If the proposed action was not adequately analyzed in an Environmental Impact Statement (or EIS) for the forest plan, as required by NEPA, a project-level EIS must be completed, unless the agency has determined through its Environmental Assessment (or EA) that the project will not significantly affect the environment (finding of no significant impact, or FONSI), in which case the EA itself may suffice. 40 C.F.R. § 1500.4(q); U.S. Forest Service, 46 F.3d at 837, 840.

Under this NFMA configuration, a forest plan identifies suitable grazing lands, while permits to graze, if appropriate under that general plan, are issued pursuant to an appropriate site-specific project analysis. See generally Lujan v. National Wildlife Fed'n, 497 U.S. 871, 892 n.3 (1990) (mining permits); U.S. Forest Service, 46 F.3d at 837 (timber sales); Robertson, 28 F.3d at 759 (same); Natural Res. Defense Council, Inc. v. Hodel, 624 F. Supp. 1045, 1061 (D. Nev. 1985) (grazing permits). Grazing permits "convey no right, title, or interest" in lands or resources, 36 C.F.R. § 222.3(b), and are subject to modification according to changes in management needs or resource conditions, 36 C.F.R. § 222.4(a)(7) & (8).

In this case, the Grazing District is an association that has a permit to graze cattle upon the Grasslands. In 1984, after completion of an EIS, the Forest Service adopted and approved the Nebraska National Forest Land and Resource Management Plan (Nebraska Forest Plan) to regulate use of the Grasslands' resources. This plan emphasizes wildlife habitat, directing the Forest Service to "[a]lter grazing systems, season of use, and stocking levels to enhance wildlife habitat." It also requires the Forest Service to have developed residual cover⁴ guidelines for the sharp-tailed grouse and greater prairie chicken "by [the] close of FY 1988." In 1985-prior to having considered all resource factors, seeking involvement of all interested parties, or conducting the requisite NEPA analysis-the Forest Service authorized the issuance of permits to graze cattle on the Grasslands at a maximum stocking rate of 70,436 Animal Unit Months (AUMs).⁵ Documentation incorporated into the Grazing District's grazing agreement indicated that proper range condition analyses needed to be conducted, that when residual cover requirements were established, the permits would be subject to them, and that as monitoring and evaluation were conducted, the stocking levels could be revised.

After extensively studying⁶ the impact of grazing on the wildlife habitat, the Forest Service ultimately determined that the 1985 stocking level made it impossible to satisfy the Nebraska Forest Plan's requirements for "long-term rangeland health and productivity, wildlife habitat, woody draw habitat, and soil and water protection." Therefore, in accordance with the NFMA and NEPA, the Forest Service prepared an Environmental Assessment in which it considered maximum grazing levels of 55,440⁷ (an alternative considered at the request of the Grazing District), 45,211, 15,070, and 51,558 AUMs, along with a no-grazing alternative. In 1998, after giving public notice and receiving comments, the Forest Service issued a decision notice establishing the total maximum stocking level for the Grasslands at 51,558 AUMs and made a finding of no significant impact for the selected level.

The Grazing District subsequently filed a complaint seeking judicial review of this agency action. Both the Grazing District and Forest Service filed simultaneous motions for summary judgment. The district court granted summary judgment in favor of the Forest Service.

II. AGENCY ACTION

We review a district court's summary judgment decision de novo, applying the same standards as those applied by the district court. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1121 (8th Cir. 1999). When reviewing agency action intended by Congress to carry the force of law, we accord substantial deference to the agency's interpretation of the statutes and regulations it administers. Compare id. with United States v. Mead Corp., ___U.S.___, ___ _ ___, 121 S. Ct. 2164, 2172-76 (2001) (distinguishing degrees of deference to agency action pursuant to Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944), based on whether Congress intended to delegate authority to regulate with the force of law), and Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1186 (8th Cir. 2001) (indicating that agency rulings not reached as the result of adjudicatory adversary proceedings or formal rule making are not entitled to Chevron-type deference but are "nevertheless accorded respect by the courts to the extent [they have] the power to persuade"). Here, it is apparent that Congress intended that public land be managed with the force of law, see, e.g., 16 U.S.C. § 1604 (providing intricate detail for land management process, including, notably, public participation). Following statutory and regulatory guidance, the Forest Service amended the grazing plan through the public comment process.

Although NEPA does not authorize a private right of action, the Administrative Procedure Act (APA) provides for judicial review of agency action. Sierra Club v. Slater, 120 F.3d 623, 630-31 (6th Cir. 1997). Under the APA scheme, we must uphold agency action unless it was "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'" Richards-Gebaur, 251 F.3d at 1185 (quoting 5 U.S.C. § 706(2)(A)).

A decision is arbitrary and capricious if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Yet, "[w]hen the resolution of the dispute involves primarily issues of fact and analysis of the relevant information 'requires a high level of technical expertise, we must defer to the informed discretion of the responsible federal agencies.'" Dombeck, 164 F.3d at 1128 (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377 (1989). The scope of our review is narrow and we are not to substitute our judgment for that of the agency. Motor Vehicle Mfrs., 463 U.S. at 43.

We therefore accord appropriate deference to the agency's action under both Acts. Because the Grazing District does not indicate that additional evidence is necessary to resolve its claims, we will consider them on their merits and not remand to the district court.⁸ See Dombeck, 164 F.3d at 1127.

A. The National Environmental Policy Act

1. Standing

As a threshold issue, the Forest Service contends that the Grazing District lacks standing to pursue its NEPA claim. The issue of standing implicates constitutional limitations on federal court jurisdiction and prudential limitations on the exercise thereof. Bennett v. Spear, 520 U.S. 154, 162 (1997). Prudential standing is ascertained according to the zone-of-interests test, that is "'whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. at 175 (quoting Association of Data Processing...