Habitat Educ. Center, Inc. v. Bosworth

• Decision Date: 31 March 2005
• Docket Number: No. 04-C-0254.,04-C-0254.
• Citation: 363 F.Supp.2d 1070
• Parties: HABITAT EDUCATION CENTER, INC., David Zaber, and Ricardo Jomarron, Plaintiffs, v. Dale BOSWORTH, Chief of the United States Forest Service, and Mike Johanns, Secretary of the United States Department of Agriculture,<SMALL><SUP>1</SUP></SMALL> Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

363 F.Supp.2d 1070

HABITAT EDUCATION CENTER, INC., David Zaber, and Ricardo Jomarron, Plaintiffs, v. Dale BOSWORTH, Chief of the United States Forest Service, and Mike Johanns, Secretary of the United States Department of Agriculture,¹ Defendants.

No. 04-C-0254.

United States District Court, E.D. Wisconsin.

March 31, 2005.

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Howard Learner, Sean O'Bosak, Brady Williamson, Shannon Fisk, for Plaintiff or Petitioner.

Benjamin Longstreth, David Oberstar, for Defendant or Respondent.

DECISION AND ORDER

ADELMAN, District Judge.

I. NATURE OF CASE

Plaintiff Habitat Education Center, Inc., a citizen's organization engaged in forest, wildlife, and natural resource protection and two of its officers, bring this action against defendants, Dale Bosworth, Chief of the United States Forest Service, and Mike Johanns, Secretary of the United States Department of Agriculture (collectively "the Forest Service"). Plaintiffs allege that in approving logging activities and timber sales in the McCaslin area ("the McCaslin project") of the Chequamegon-Nicolet National Forest ("CNNF") in northern Wisconsin, 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.

Plaintiffs allege that the Forest Service violated NEPA by: (1) failing to adequately consider the cumulative impacts on the environment of past, present and reasonably foreseeable future logging projects; and (2) failing to consider sound, high quality scientific information indicating that the McCaslin project will harm goshawk and red-shouldered hawk, which species are in severe decline. Plaintiffs contend that the Forest Service violated NFMA by: (1) approving the McCaslin project based on an outdated 1986 forest plan; and (2) allowing greater road density in the McCaslin area than the 1986 plan permitted. Plaintiffs bring the action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, which permits persons who are adversely affected by the action of a federal agency to obtain judicial review of such action. See Sierra Club v. Marita, 46 F.3d 606, 610 n. 3 (7th Cir.1995). Plaintiffs have standing to sue because they allege that the Forest Service's actions will diminish their use and enjoyment of the CNNF. See Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir.1998). Before me now are the parties' cross-motions for summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

The CNNF comprises two areas, the Chequamegon, which covers 858,400 acres in northwestern and north-central Wisconsin and the Nicolet, which covers 661,400 acres in northeastern Wisconsin. Prior to 1993, the Forest Service managed the areas separately but has since treated them as a single unit. In 2000, the Forest Service began planning a timber harvesting project in the McCaslin area on the Nicolet side of the CNNF, and in 2001, pursuant to NEPA, it requested public comments on the scope of the environmental impact statement ("EIS"). It subsequently prepared a draft EIS, in which it evaluated five alternatives for conducting the harvest and solicited public comments. See 40 C.F.R. § 1503 (requiring an agency to solicit public comments after preparing a draft EIS, but prior to preparing a final EIS).

In September 2003, the Forest Service signed the record of decision ("ROD") and released the final EIS in which it stated that it chose an alternative that created "desired vegetation conditions while striking a balance between issues of providing for interior forest and aspen communities and forest products." (R. DD-3, ROD at 1.) In 2003, the Forest Service also approved five other timber harvesting projects in the CNNF, one, the Northwest Howell project, on the Nicolet side and four, the Cayuga, Gilman Tornado, Hoffman Sailor and Sunken Moose projects, on the Chequamegon side. In November 2003, plaintiffs administratively appealed, and in December, the parties unsuccessfully attempted to resolve the dispute informally.

I will discuss additional facts in the course of the decision.

III. STANDARDS OF REVIEW

As stated, the parties bring cross-motions for summary judgment under Fed.R.Civ.P. 56. However, in cases like the present one in which a district court reviews the action of an agency and thus performs an essentially appellate function, a summary judgment motion is an imperfect vehicle. See Primeco Pers. Communications, Ltd. P'ship v. City of Mequon, 242 F.Supp.2d 567, 574 (E.D.Wis.2003) (noting that in cases involving review of municipal decisions under the Telecommunications Act, "district courts sit in an appellate capacity, much as in Social Security cases where they review the decisions of administrative law judges"); see also Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1501 (10th Cir.1992) (Kane, J., concurring) (pointing out that summary judgment motions in social security cases are unnecessary); Vaile v. Chater, 916 F.Supp. 821, 823 n. 2 (N.D.Ill.1996) (in a Social Security case, treating the Commissioner's motion for summary judgment as a motion to confirm the Commissioner's decision). The purpose of a summary judgment motion is to determine whether a case should proceed to trial, but in a case where a court reviews an agency decision, the "trial," such as it was, has already taken place. Further, in the present case, the standard of review is not whether there is a genuine issue of material fact, as it is under Rule 56, but whether the agency's decision was "arbitrary and capricious" under the APA. See e.g., Env't Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994) (noting that when the court reviews an agency decision "[t]he question is not whether there is a genuine issue of material fact, but whether the agency action was arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole"). The Federal Rules do not seem to provide an appropriate mechanism for challenging an agency's decision. Nevertheless, I believe that a simple motion stating the relief requested should be sufficient. I will therefore treat plaintiffs' motion as one to reverse the Forest Service's approval of the McCaslin project and the agency's cross-motion as one to affirm.

I review challenges to agency action under NEPA and the NFMA according to the standard provided in the APA. See Highway J Citizens Group v. Mineta, 349 F.3d 938, 952 (7th Cir.2003) (reviewing NEPA claim); Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 859, 862 (7th Cir.2003) (reviewing NFMA claim). As stated, under such standard, I may set aside an agency's action only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "without observance of procedure required by law." 5 U.S.C. §§ 706(2)(A), 706(2)(D). This standard of review is narrow and requires that I "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment." Highway J Citizens Group, 349 F.3d at 952-53 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations omitted)). I may not substitute my judgment regarding the environmental consequences of an action for that of the agency. Id. at 953. However, I must "insure that the agency has taken a `hard look' at environmental consequences." Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). Thus, if

an 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[,] the agency has violated the APA. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

When interpreting NEPA, I must give "substantial deference to the regulations issued by the Council on Environmental Quality" ("CEQ"). Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th Cir.2003) (citing 42 U.S.C. § 4342). "The procedures prescribed both in NEPA and the implementing regulations are to be strictly interpreted `to the fullest extent possible' in accord with the policies embodied in the Act." Id. (citing 42 U.S.C. § 4332(1) and California v. Block, 690 F.2d 753, 769 (9th Cir.1982)). "Grudging, pro forma compliance will not do." Id. (citation omitted).

A plaintiff challenging agency action under NEPA or the NFMA bears the burden of proof. Marita, 46 F.3d at 619. Finally, in reviewing agency action under the APA, I "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The scope of review is thus necessarily limited to the administrative record before the agency decisionmaker. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985).

IV. NEPA CLAIMS

Congress enacted NEPA to foster better decisionmaking and informed public participation in actions that affect the environment. 42 U.S.C. § 4321 et seq. To achieve this goal, NEPA requires that federal agencies prepare a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS must include a "detailed statement" concerning "the environmental impact of the proposed action" and "any adverse environmental effects which cannot be avoided" and alternative proposals that could minimize the adverse impacts or enhance the quality of the environment. Id. Finally, the EIS must include an analysis of the "relationship between local short-term uses of man's environment and the maintenance and enhancement of...