Cronin v. U.S. Dept. of Agriculture

• Citation: 919 F.2d 439
• Decision Date: 28 November 1990
• Docket Number: No. 90-2744,90-2744
• Parties: 21 Envtl. L. Rep. 20,492 William CRONIN, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 439

919 F.2d 439

21 Envtl. L. Rep. 20,492

William CRONIN, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants-Appellees.

No. 90-2744.

United States Court of Appeals Seventh Circuit.

Argued Sept. 28, 1990.

Decided Nov. 28, 1990.

Barry Levenstam, Thomas C. Buchele, Chicago, Ill., Joseph Glisson, Pomona, Ill., for plaintiffs-appellants.

Stephen B. Clark, Asst. U.S. Atty., Office of the U.S. Atty., East St. Louis, Ill., Leslie Auriemmo, Dept. of Agriculture, Milwaukee, Wis., Thomas F. Crosby, Winters, Brewster, Murphy, Crosby & Patchett, Marion, Ill., for defendants-appellees.

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Recreational frequenters of the Shawnee National Forest in southern Illinois have appealed from the denial of their request for a preliminary injunction. The Forest Service authorized a sale of timber, to be harvested by the method of logging known as "group selection," from a 661-acre tract, called "Fairview," of the 260,000-acre national forest. The suit charges that the sale violates federal law, in particular the National Environmental Policy Act, 42 U.S.C. Secs. 4321 et seq., and the National Forest Management Act, 16 U.S.C. Secs. 1600 et seq. The former statute requires a federal agency to prepare an environmental impact statement before the agency undertakes a "major" action having a "significant" impact on the environment, 42 U.S.C. Sec. 4332(2)(c), while the latter requires contracts for the exploitation of the national forests' timber resources to conform to the Forest Service's land management plans. 16 U.S.C. Sec. 1604(i).

The Service had issued such a plan for the Shawnee National Forest in 1986, and with it a statement of the plan's environmental impact that the plaintiffs acknowledge complied with the National Environmental Policy Act. The plan divided the forest into areas called "Management Prescriptions." Fairview is in Management Prescription 3.2, and the plan authorizes logging there by the method known as "even-aged management," and specifically by clear-cutting. (If all the trees in a tract are cut down at once, the new trees that grow in their place will be of roughly the same age.) But the plan also authorizes "uneven-aged management" in Management Prescription 3.2 where necessary to achieve certain specified objectives, including "visual quality objectives," a euphemism for not too unsightly. Uneven-aged management can take the form of either cutting down individual trees or clearing small patches. The latter method is called "group selection"--a more informative name would be "clear-cutting at retail"--and has not been used before in the Shawnee National Forest. Either method results in an area in which the trees are of uneven age, since if one tree or a small swatch of trees is cut down the tree or trees that grow up in its (their) place will be younger than the surrounding trees, which had been spared.

Concerned by the amount of clear-cutting authorized by the 1986 plan, conservation-minded users of Fairview sought review of the plan in accordance with procedures that the Forest Service has established. The administrative proceeding was dropped when the Service agreed to amend the plan to limit the amount of clear-cutting allowed. But the settlement agreement (which, incidentally, the plaintiffs in this case refused to sign) disclaims any purpose of preventing the plan from becoming final and effective, as it has since become. The amended plan envisaged by the settlement, along with a statement of the environmental impact of the amendments, is in the works but has not yet been completed; nevertheless the Forest Service has suspended clear-cutting in Management Prescription 3.2 indefinitely.

Earlier this year the Forest Service revived a previous plan for logging in Fairview. A private logger would be permitted to conduct group selection by clearing the trees on patches ranging from one-quarter acre to two acres in size scattered throughout the Fairview area; added together the patches would come to 26 acres. After receiving written comments from the later-to-be plaintiffs in this case and others, the supervisor of the Shawnee National Forest issued a written decision authorizing the project to go forward. The decision indicates that the forest supervisor believes the project to be consistent with Management Prescription 3.2, and hence not to violate the National Forest Management Act, because group selection is necessary to achieve the management plan's visual quality objectives. The decision does not say this in so many words, but the implication is unmistakable. Group selection is said to have been chosen because it "responds to public concerns about the effects of clearcutting on ... forest services," and clear-cutting rejected because it "would not meet the established visual quality objectives of partial retention." Management Prescription 3.2 allows group selection in lieu of clear-cutting when it is necessary to meet visual quality objectives, and evidently the forest supervisor thought it was. He could have said this more clearly, but a reviewing court may--without violating the rule of SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), against the court's supplying a rationale for the agency's decision--"uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Bowman Transportation Co., Inc. v. Arkansas-Best Freight Co., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974); see also Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 836, 89 L.Ed. 1206 (1945); Consolidated Gas Transmission Corp. v. FERC, 771 F.2d 1536, 1550 n. 18 (D.C.Cir.1985); Ceramica Regiomontana, S.A. v. United States, 810 F.2d 1137 (Fed.Cir.1987) (per curiam). That undemanding standard is satisfied here--especially when allowance is made for the fact that the decision is that of a local forest supervisor rather than of the members of a sophisticated agency in Washington. It was in a case involving such an agency, the Federal Power Commission, that the Supreme Court declined to remand for further findings because even though the Commission's findings "leave much to be desired," Colorado Interstate Gas Co. v. FPC, supra, 324 U.S. at 595, 65 S.Ct. at 836, "the path which it followed can be discerned." Id. It can be discerned here. A remand for better findings would serve the plaintiffs' interest in delaying the timber sale, but no other interest for it is plain what those findings must be. Chenery does not require futile remands. Illinois v. ICC, 722 F.2d 1341, 1348-49 (7th Cir.1983); Erie-Lackwanna R.R. v. United States, 279 F.Supp. 316, 354-55 (S.D.N.Y.1967) (three-judge court) (Friendly, J.), aff'd with modifications, and remanded, under the name Penn-Central and N & W Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968).

The forest supervisor suggested another reason for authorizing group selection in Fairview. It would be a boon to "shade intolerant" trees (trees that need more sun than they can get in a dense forest--the Forest Service's proclivity to employ a wooden vocabulary is an unintentional irony in this case) because it would create open areas through which the sun, when it is not directly overhead, would stream into the surrounding woods. It is these very trees--the oaks and hickories--that the logger is after. The patches that he will be clearing if we let him are the ones in which those trees are concentrated; apparently, group selection, which is more costly than clear-cutting, pays only when the groups selected include the commercially more valuable trees.

After stating that the project will enable the Forest Service's employees at Shawnee National Forest to gain experience with group selection, the forest supervisor's decision concludes with a "finding of no significant [environmental] impact." The basis for this finding is an "environmental assessment" that the forest supervisor had prepared shortly before. An environmental assessment is a rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement--which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project--is necessary. River Road Alliance, Inc. v. Corps of Engineers, 764 F.2d 445, 449 (7th Cir.1985). ("Rough-cut" and "low budget" are relative terms: the environmental assessment in this case is 112 pages long--4.3 pages per acre.) Since the forest supervisor did not believe that the logging contract would have a significant environmental impact, he did not think an environmental impact statement required. Incidentally, the environmental assessment also notes that one of the major concerns with clear-cutting is its effect on visual quality and that unevenaged management helps "maintain aesthetic values." This is further evidence that the forest supervisor's decision was indeed based, in part anyway, on a belief that the substitution of group selection for clear-cutting in Fairview was necessitated by concern about visual quality.

After exhausting their administrative remedies by appealing the forest supervisor's decision to the regional forester, 36 C.F.R. Sec. 217.7(b)(1), the plaintiffs brought this suit, which the district judge referred to a magistrate for a brief evidentiary hearing after which the judge denied the plaintiffs' request for a preliminary injunction. And this is the first puzzle about the case: why the district judge thought it proper to order an evidentiary hearing.

When persons harmed by administrative action bring a suit for injunction in a federal district court, it is not because they want, or are entitled to, a trial. It is because when Congress has not prescribed the mode of judicial review of a particular type of administrative decision, here a decision...