Colorado Wild v. U.S. Forest Service

• Decision Date: 18 January 2006
• Docket Number: No. 05-1265.,05-1265.
• Citation: 435 F.3d 1204
• Parties: COLORADO WILD; HEARTWOOD, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, and Intermountain Forest Association, an Idaho corporation, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

435 F.3d 1204

COLORADO WILD; HEARTWOOD, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, and Intermountain Forest Association, an Idaho corporation, Defendant-Intervenor-Appellee.

No. 05-1265.

United States Court of Appeals, Tenth Circuit.

January 18, 2006.

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Matthew G. Kenna, Western Environmental Law Center, Durango, CO, for Plaintiffs-Appellants.

Barclay T. Samford (and Kelly A. Johnson, Acting Assistant Attorney General, on the brief), United States Department of Justice, Environment & Natural Resources Division, Denver, CO, for Defendant-Appellee.

Scott W. Horngren, Haglund, Kelley, Horngren, Jones and Wilder, L.L.P., Portland, OR, for Defendant-Intervenor-Appellee.

Before KELLY, PORFILIO, and TYMKOVICH, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff-Appellants Colorado Wild, Inc. and Heartwood, Inc. (collectively, the "Conservation Groups") appeal from a final judgment in favor of Defendant-Appellee, United States Forest Service ("Forest Service") and Intervenor-Defendant-Appellee Intermountain Forest Association ("Intermountain"). The Conservation Groups challenge, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-06, a categorical exclusion promulgated by the Forest Service ("Category 13") that allows the salvage of dead and/or dying trees on up to 250 acres (with up to one-half mile of temporary road construction) to proceed without preparation of an environmental impact statement ("EIS") or an environmental assessment ("EA") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f. The Shaw Lake Vegetation Project ("Shaw Lake Project") was approved pursuant to Category 13. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Statutory Background

Our review of the challenged regulation is set against the backdrop of NEPA and the regulations and guidance created by the administrative agency charged with its implementation, the Council on Environmental Quality ("CEQ"). We therefore begin with a brief overview thereof. NEPA was enacted to regulate government activity that significantly impacts the environment and "to help public officials make decisions that are based on [an] understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." 40 C.F.R. § 1500.1(c). The CEQ administers NEPA and promulgates regulations related to NEPA that are binding on federal agencies. See 42 U.S.C. §§ 4342, 4344(3); 40 C.F.R. §§ 1501-08. Every federal agency then drafts its own administrative regulations to implement and supplement the CEQ regulations. See 40 C.F.R. § 1507.3.

To effectuate the goals of NEPA, the CEQ created rules requiring agencies to establish implementing procedures that facilitate the evaluation of management decisions and the environmental effects of proposed federal agency actions. Under these guidelines, an agency must identify those actions which normally require an EIS. See id. § 1501.4(a)(1). An EIS is required for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

In order to determine whether a particular proposed action requires the preparation of an EIS, agencies perform an EA. An EA is a public document (shorter than an EIS) that contains information pertaining to the need for the proposed action, other alternatives, the environmental impact of the proposal and its alternatives, and other relevant information. See 40 C.F.R. § 1508.9(b). An agency may prepare an EA for one of several reasons: (1) to provide evidence and analysis that establish whether or not an EIS or a Finding of No Significant Impact ("FONSI") should be prepared; (2) to help the agency comply with NEPA when no EIS is necessary; and (3) to facilitate preparation of an EIS when one is necessary. See id. § 1508.9(a)(1)-(3).

When an agency identifies certain actions that do not have any significant effect on the environment, the agency may classify those actions as categorical exclusions ("CEs"). Under NEPA and CEQ regulations, if an action falls within a particular CE, the agency need prepare neither an EIS nor an EA. The CEQ requires federal agencies to design procedures for establishing CEs. Specifically, a CE is

a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.

40 C.F.R. § 1508.4.

In Guidance Regarding NEPA Regulations, 48 Fed.Reg. 34,263, 34,265 (July 28, 1983), the CEQ expressed concern that some agencies were developing lists of specific activities which qualify as CEs. The CEQ discouraged this practice, noting that "if this approach is applied narrowly it will not provide the agency with sufficient flexibility to make decisions on a project-by-project basis with full consideration to the issues and impacts that are unique to a specific project." Id. The CEQ went on to encourage agencies "to consider broadly defined criteria which characterize types of actions that, based on the agency's experience, do not cause significant environmental effects." Id.

In order to establish a CE, the CEQ requires that an agency publish the proposed CE in the Federal Register, provide an opportunity for public comment, and submit the CE to the CEQ for review and approval. See 40 C.F.R. § 1507.3(a). The CEQ reviews proposed CEs at the draft stage. 48 Fed.Reg. 34,265. After reviewing comments received during the review period and prior to publication in final form, the CEQ determines whether the CEs are consistent with NEPA regulations. Id.

Factual Background

In 1992, the Forest Service promulgated and adopted a CE for timber harvests "which remove 250,000 board feet or less of merchantable wood products or salvage which removes 1,000,000 board feet or less." 57 Fed.Reg. 43,180, 43,209 (Sept. 18, 1992) (the "Former CE"). In 1999, a federal district court in Illinois struck down the Former CE. Heartwood, Inc. v. U.S. Forest Serv., 73 F.Supp.2d 962, 975 (S.D.Ill.1999).

In 2001, the Forest Service began developing a new set of CEs to cover small-scale timber harvests. As a basis for proposing a new set of CEs, the Forest Service looked at two sets of data. The Forest Service first analyzed all 306 timber harvest projects performed under the Former CE for the year 1998, the last year the Former CE was available to the Forest Service. This data was compiled and reviewed to estimate the extent to which the Former CE was used and to determine average project size (in acres) and harvest volume (in board feet).

Second, in 2001, the Forest Service selected, on a nationwide basis, 154 timber harvest projects that were either (1) approved under the Former CE, (2) approved after an EA or an EIS was prepared but fit within the Former CE requirements, or (3) were otherwise small in scope. This sample consisted of 101 dead timber salvage projects and 53 green timber harvest projects. None of the 154 projects reviewed predicted significant effects on the environment before the project was implemented.

Of the 154 projects reviewed, 122 were approved under the Former CE and were documented with decision memos¹ while 32 were documented with EAs. In addition to reviewing these documents, teams of interdisciplinary resource specialists from the Forest Service (the "Interdisciplinary Teams") conducted on-site, post-implementation assessments of these projects' environmental effects. The Interdisciplinary Teams monitored and documented whether each project met project standards (e.g., Forest Plan Standards or Guidelines, state water quality standards, etc.) for "soil, water, air, vegetation, wildlife, fish, cultural and historic resources, [and] other pertinent issue related resources." Aplt.App. at 38.

The resulting data indicated that a few of the projects showed "minor soil disturbance and compaction," while a few others showed that "small numbers of noxious weeds or invasive plants entered the area where the trees had been removed." 68 Fed.Reg. 44,598 (July 29, 2003). However, based on the information provided by the Interdisciplinary Teams, the respective Forest Service line officer responsible for each timber harvest project reviewed made a finding that these impacts were not significant in the NEPA context, i.e., they did not individually or cumulatively have a significant effect on the human environment. Id. at 44,599. Thus, the Forest Service considered pre-implementation prediction and post-implementation verification of no significance in the NEPA context.

Based on the 154 projects reviewed, the Forest Service identified three types of actions that it determined normally do not individually or cumulatively have a significant effect on the human environment. As such, the Forest Service defined the criteria which characterize these actions and proposed three new categories of CEs consistent therewith: (1) harvest of live trees not to exceed 70 acres (green timber harvests or "Category 12"), (2) salvage of dead and/or dying trees not to exceed 250 acres (salvage timber harvests or Category 13), and (3) commercial and non-commercial sanitation of trees to control insects or disease not to exceed 250 acres ("Category 14"). See 68 Fed.Reg. 44,598. The Forest Service also defined all three CEs to permit no more than one-half mile of...