Habitat Educ. Center, Inc. v. Bosworth

Decision Date08 August 2005
Docket NumberNo. 03C1024.,03C1024.
Citation381 F.Supp.2d 842
PartiesHABITAT 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, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin

Ann Alexander, Howard A. Learner, Shannon W. Fisk, Environmental Law and Policy Center, Chicago, IL, Brady C. Williamson, Sean O. Bosack, Godfrey & Kahn SC, Milwaukee, WI, for Plaintiffs.

Benjamin Longstreth, United States Department of Justice, Washington, DC, David R. Oberstar, Fryberger Buchanan Smith & Frederick PA, Duluth, MN, for Defendants.


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, and Mike Johanns, Secretary of the United States Department of Agriculture (collectively the "Forest Service").1 Plaintiffs allege that in approving logging activities and timber sales in the Cayuga 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., and the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687.

Plaintiffs contend that 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. Plaintiffs contend that the Forest Service violated NFMA by: (1) approving the project based on an outdated 1986 forest plan, and (2) failing to monitor the populations of certain management indicator species.

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 actions complained of 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.


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 has treated them as a single unit. In 2001, the Forest Service commenced the process of preparing an environmental impact statement ("EIS") concerning the Cayuga project on the Chequamegon side of the CNNF. On May 7, 2003, the District Ranger signed a record of decision ("ROD") for the project and released the final EIS. The District Ranger selected the fifth of five alternative approaches because it

1. Provid[es] breeding, foraging areas and dispersal habitat for pine marten by managing for a contiguous block of northern hardwoods across the northern portion of the project area; 2. Result[s] in a lower level of fragmentation that would reduce the potential for predation on forest interior migratory birds; and 3. Protect[s] lowland areas from potential impacts of clearcutting and temporary road construction.

(R. 5 at 7.) 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, three on the Chequamegon side, the Gilman Tornado, Hoffman Sailor and Sunken Moose sales, and two, the McCaslin and Northwest Howell sales, 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.

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


As stated, the parties cross-move 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 Services, 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) (treating the Commissioner's motion for summary judgment in a Social Security case as a motion to affirm 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." 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 is sufficient. Thus, I will treat plaintiffs' motion as one to reverse the Forest Service's determinations and the Forest Service's cross-motion as one to affirm such determinations. See Habitat Educ. Ctr., Inc. v. Bosworth, 363 F.Supp.2d 1070, 1074 (E.D.Wis.2005) (treating motions for summary judgment as motions to reverse and to affirm); Habitat Educ. Ctr., Inc. v. Bosworth, 363 F.Supp.2d 1090, 1095 (E.D.Wis.2005) (same).

I review challenges to agency action under NEPA and NFMA 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). 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 and 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).


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 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," "any...

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