Habitat Educ. Center, Inc. v. U.S. Forest Service

• Citation: 603 F.Supp.2d 1176
• Decision Date: 19 March 2009
• Docket Number: Case No. 08-C-0043.
• Parties: HABITAT EDUCATION CENTER, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

603 F.Supp.2d 1176

HABITAT EDUCATION CENTER, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.

Case No. 08-C-0043.

United States District Court, E.D. Wisconsin.

March 19, 2009.

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Bradley D. Klein, Howard A. Learner, Kathrine B. Dixon, Chicago, IL, Brady C. Williamson, Godfrey & Kahn SC, Madison, WI, Sean O. Bosack, Godfrey & Kahn SC, Milwaukee, WI, for Plaintiffs.

Pamela S. West, Stacey M. Bosshardt, United States Department of Justice, Environment & Natural Resources Div., Washington, DC, for Defendants.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

Plaintiffs filed the present action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, arguing that in approving a project (the "Fishbone" project) in the Chequamegon-Nicolet National Forest ("CNNF"), the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600-1687. Before me are the parties' cross-motions for summary judgment.

I. BACKGROUND

The CNNF covers approximately 1.5 million acres in northern Wisconsin, where between the mid-nineteenth century and the Great Depression timber barons and forest fires reduced Wisconsin's old-growth forests to "brush fields, eroded fallow pastures, and burned-over stump patches." See History of the Chequamegon-Nicolet National Forests ("History of CNNF") at 2-4.¹ After the timber barons denuded the forest, speculators sold what remained as farmland. The land was unproductive, however, and the farmers could not earn enough to pay their property taxes, causing them to abandon their lands or forfeit them to county governments. Id. at 3; Fishbone Record of Decision ("ROD") at 2.

In the late 1920s, the federal government began purchasing the abandoned land from the counties and managing it as a national forest. During the Great Depression, the Civilian Conservation Corp planted thousands of acres of pine throughout the barren farmland. ROD at 2. In 1933, the government's collective purchases were designated as the Nicolet National Forest. Because the national forest emerged from the government's purchases of individual tracts of land and was not carved from large blocks of public land, it had a fragmented ownership pattern, characterized by a patchwork of public and private lands. History of CNNF at 4. In 1933, these lands were aggregated into two, noncontiguous units, the Nicolet East and Nicolet West. The Nicolet West eventually became the Chequamegon National Forest. For sixty years, the Forest Service managed the Nicolet and Chequamegon units as separate national forests. Since 1993, however, the units have been managed as a single entity, now known as the Chequamegon-Nicolet National Forest. Id. Although the amount of national forest land has grown over the years, the Nicolet and Chequamegon units remain noncontiguous. The Nicolet unit is located on the eastern half of northern Wisconsin, east of Rhinelander, and the Chequamegon is located on the western half of northern Wisconsin, near Park Falls.²

As a result of the Forest Service's management of the CNNF, the land has returned to forest conditions, although it is now a young forest characterized by even-aged stands (i.e., trees that are roughly the same age). ROD at 2. While this is an improvement over the conditions left by the timber barons, a truly healthy forest contains trees of different ages, as well as a variety of tree species. Id. Thus, one of the Forest Service's objectives in managing the forest is to encourage a diversity of tree species and a diversity of tree ages throughout the CNNF. Id. One of the tools that the Forest Service uses to further this objective is selective timber harvesting through restoration projects, such as the project at issue in this case. Id. When selected trees are harvested from an even-aged stand, the stand becomes more diverse over time, as younger trees replace the harvested trees and compliment the older trees that were left in the stand.³ Id. Thus, restoration projects further not only the economic interests of those who benefit from forest commodities, but also the objective of forest diversity.

On June 18, 2007, Jeanne M. Higgins, the Forest Supervisor for the CNNF, issued a Record of Decision ("ROD") in which she approved the Fishbone project, a restoration project located on the Chequamegon side of the forest. Before deciding to implement the project, the Forest Service surveyed the project area and identified a number of project goals. Those goals were designed to bring the project area closer to the condition described by the Forest Plan for the CNNF, a document that the Forest Service created in 2004 to guide its overall management of the forest. The Forest Service identified five project goals, including the reduction of old-age oak and aspen trees (which are susceptible to pests and diseases) and the provision of timber to meet the demand for wood products. See, e.g., Environmental Impact Statement, at ii-iv (executive summary). The resulting project will involve a variety of activities, including various harvesting methods, some road building and some road closings. See, e.g., ROD at 9 (Table 3).

Because the Fishbone project is a "major Federal action[] significantly affecting the quality of the human environment," NEPA required the Forest Service to prepare an Environmental Impact Statement ("EIS") for the project, which is "a detailed analysis and study conducted to determine if, or the extent to which, a particular agency action will impact the environment." See Highway J Citizens Group v. Mineta, 349 F.3d 938, 953 (7th Cir.2003). The final version of the EIS for the Fishbone project was published in June 2007.

The plaintiffs, environmental advocates, challenged the ROD approving the Fishbone project in administrative proceedings. After exhausting their administrative remedies, plaintiffs commenced this action, which is the fifth in a series of actions that plaintiffs have filed in this District against the Forest Service relating to their approval of restoration projects within the CNNF. In three of the previous three actions, I determined that the Forest Service did not fully comply with NEPA and enjoined the projects until such time as the Forest Service remedied their non-compliance. See Habitat Educ. Ctr. v. Bosworth, 381 F.Supp.2d 842 (E.D.Wis.2005) ("Habitat III"); Habitat Educ. Ctr. v. Bosworth, 363 F.Supp.2d 1090 (E.D.Wis.2005) ("Habitat II"); Habitat Educ. Ctr. v. Bosworth, 363 F.Supp.2d 1070 (E.D.Wis.2005) ("Habitat I"). More recently, I found that the Forest Service's decision to approve a project complied with NEPA and NFMA. See Habitat Educ. Ctr. v. U.S. Forest Service, 593 F.Supp.2d 1019 (E.D.Wis.2009) ("Habitat IV"). Although the present action arises out of the same forest, involves some of the same species, and has some issues in common with the previous actions, the actions are otherwise unrelated. The project involved in the present case has its own administrative record, which I review independently of my decisions in the three earlier cases. See Habitat Educ. Ctr. v. Kimbell, 250 F.R.D. 390, 394-95 (E.D.Wis.2008) (explaining that each project is distinct and must be reviewed independently and on its own administrative record).

In bringing this action, plaintiffs express concern about the Forest Service's management of two sensitive species that inhabit the CNNF: Northern Goshawk and Red-shouldered Hawk. They argue that the Forest Service has not adequately analyzed the potential impact of the Fishbone project on the habitat of these species. A brief overview of these species and their habitat will help the reader understand the parties' positions in this case.⁴

The Northern Goshawk is a large, forest dwelling raptor (i.e., bird of prey) that generally makes its habitat in mature deciduous, conifer or mixed forest. The CNNF is at the southernmost edge of goshawks' breeding range. Because of this, goshawks are expected to occur in the CNNF in lower numbers and with higher variation than at the core of their range. Even before the timber barons, goshawks were considered rare summer residents. After the northern hardwoods were logged, goshawks persisted in pockets of unharvested land. Research in the 1970s indicated that goshawks were becoming more common in the northeast portion of the state (i.e., near the Nicolet side of the CNNF). In the mid-1980s, however, severe depredation by racoons and fisher began to affect the population.

The Red-shouldered Hawk is a medium-to-large woodland hawk that makes its habitat in mature hardwood forest near riparian areas. Prior to 1900, it was one of the most common hawks in the eastern United States, but it has probably never been common in Wisconsin. Once again, logging in the late nineteenth and early twentieth centuries destroyed much of its habitat. Presently, the Red-shouldered Hawk is an uncommon summer resident in Wisconsin.

II. DISCUSSION

A. NEPA

1. Standard of Review

When an agency's decision is challenged under the APA based on the agency's failure to comply with NEPA, the standard of judicial review is a narrow one. Highway J, 349 F.3d at 952. The court is not empowered to examine whether the agency made the "right" decision, but only to determine whether, in making its decision, the agency followed the procedures prescribed by NEPA. Id. (NEPA "`does not mandate particular results, but simply prescribes the necessary process.'") In the present case, plaintiffs argue that the Forest Service did not comply with the procedures required by NEPA because it did not prepare a satisfactory EIS before approving the Fishbone project.

As noted, NEPA requires that federal agencies prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. §...