Habitat Educ. Center, Inc. v. Bosworth

• Citation: 363 F.Supp.2d 1090
• Decision Date: 01 April 2005
• Docket Number: No. 03-C-1023.,03-C-1023.
• Parties: HABITAT EDUCATION CENTER, INC., David Zaber and Ricardo Jomarron, Plaintiffs, v. Dale BOSWORTH, as Chief of the U.S. Forest Service, Mike Johanns, as Secretary of the United States Department of Agriculture, Matt Hogan, as Acting Director of the United States Fish and Wildlife Service, and Gale Norton, as Secretary of the Interior, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

363 F.Supp.2d 1090

HABITAT EDUCATION CENTER, INC., David Zaber and Ricardo Jomarron, Plaintiffs, v. Dale BOSWORTH, as Chief of the U.S. Forest Service, Mike Johanns, as Secretary of the United States Department of Agriculture, Matt Hogan, as Acting Director of the United States Fish and Wildlife Service, and Gale Norton, as Secretary of the Interior, Defendants.

No. 03-C-1023.

United States District Court, E.D. Wisconsin.

April 1, 2005.

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Howard Learner, Sean O'Bosak, Brady Williamson, Shannon Fisk, for Plaintiffs.

Benjamin Longstreth, David Oberstar, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

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, Mike Johanns, Secretary of the United States Department of Agriculture (collectively the "Forest Service"), Matt Hogan, Acting Director of the United States Fish and Wildlife Service, and Gale Norton, Secretary of the Interior (collectively the "FWS").¹ Plaintiffs allege that in approving logging activities and timber sales in the Northwest Howell area 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., the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687 and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544.

Plaintiffs allege that in approving the Northwest Howell project the Forest Service violated NEPA by: (1) failing to 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 project will harm several species inhabiting the CNNF which are already in decline. Plaintiffs allege that the Forest Service violated NFMA by: (1) approving the project based on an outdated 1986 forest plan, and (2) failing to collect data indicating the effect of the project on management indicator species. Finally, plaintiffs allege that the Forest Service's determination that the project will not affect Canada lynx violated ESA and that the Forest Service and the FWS violated ESA by failing to consult about Canada lynx.

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 their use and enjoyment of the CNNF will be diminished by the actions complained of. See Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir.1998). Before me now are the parties' cross-motions for summary judgment.

I. 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. Previous to 1993, the Forest Service managed the areas separately but has since has treated them as a single unit. In 2001, the Forest Service commenced the process of preparing an environmental impact statement ("EIS") concerning the Northwest Howell project on the Nicolet side of the CNNF. On April 14, 2003, the District Ranger signed a record of decision ("ROD") for the project and released the final EIS. The District Ranger selected the second of four alternative approaches because it "best addresses" the "most important component of the purpose and need for this project[, which] is increasing structural and species diversity in the hardwood stands." (R. 1066.) Plaintiffs administratively appealed unsuccessfully, and the parties' attempt to resolve the dispute informally also failed.

In 2003, the Forest Service also approved five other timber sales in the CNNF, four to occur on the Chequamegon side, the Cayuga, Gilman Tornado, Hoffman Sailor and Sunken Moose sales, and one, the McCaslin sale, to occur on the Nicolet side. On April 30, 2004, the Forest Service released the 2004 forest plan for the CNNF, and it became effective in June 2004.

Additional facts will be stated in the course of the decision.

II. 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 where a district court reviews the decision of an agency, a summary judgment motion is an imperfect vehicle. "This is so because when a district court reviews an agency decision, it performs an essentially appellate function." 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 for the reasons that I have stated); 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 ALJ'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," so to speak, 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, rather, whether the agency's decision is "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 appear not to provide an appropriate vehicle for challenging an agency's decision. I believe, however, that it is sufficient for a party to make a simple motion stating the relief requested. Therefore, I will treat plaintiffs' motion as one to reverse the agencies' determinations and the agencies' cross-motion as one to affirm such determinations.

I review challenges to agency action under NEPA, NFMA, and ESA² under the standard provided in the APA. See Highway J Citizens Group v. Mineta, 349 F.3d 938, 952 (7th Cir.2003) (reviewing NEPA claim); see also Ind. Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 859, 862 (7th Cir.2003) (reviewing NFMA claim); Ctr. for Marine Conservation v. Brown, 917 F.Supp. 1128, 1143 (S.D.Tex.1996) (reviewing ESA claim). Under such standard, I may set aside agency 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 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, NFMA, or ESA 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).

III. 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, such as the Forest Service, prepare a detailed EIS for all "major Federal actions...