Habitat Educ. Ctr., Inc. v. United States Forest Serv.

• Decision Date: 07 March 2012
• Docket Number: 10–1346.,Nos. 10–1322,s. 10–1322
• Citation: 673 F.3d 518
• Parties: HABITAT EDUCATION CENTER, INC., et al., Plaintiffs–Appellants, v. UNITED STATES FOREST SERVICE, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

673 F.3d 518

HABITAT EDUCATION CENTER, INC., et al., Plaintiffs–Appellants,

v.UNITED STATES FOREST SERVICE, et al., Defendants–Appellees.

Nos. 10–1322

10–1346.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 22, 2011.Decided March 7, 2012.

Sean O'D. Bosack, Attorney, Godfrey & Kahn, Milwaukee, WI, Howard A. Learner (argued), Attorney, Chicago, IL, for Plaintiffs–Appellants.

Elizabeth A. Peterson (argued), Kurt Kastorf, Attorneys, Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants–Appellees.

Before WILLIAMS and TINDER, Circuit Judges, and GOTTSCHALL, District Judge.^*WILLIAMS, Circuit Judge.

The plaintiffs, Habitat Education Center, Inc., a citizens' organization engaged in forest, wildlife, and natural resource protection, two of its officers, and the Environmental Law & Policy Center successfully sued to enjoin a number of logging projects planned for the Chequamegon–Nicolet National Forest (the “Forest”). The district court later lifted its injunction after finding that the defendants took the appropriate corrective action to comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.

The plaintiffs argue that the injunction should not have been lifted because the United States Forest Service failed to consider how a future project in the Forest's Fishel area might alter the cumulative impacts analysis it presented in the draft environmental impact statements for projects in the McCaslin and Northwest Howell areas of the Forest. But we find that the Fishel project was formally proposed after the Forest Service issued those draft statements, and it is neither arbitrary nor capricious for an agency to exclude from the cumulative impacts analysis presented in its final statement those projects that (1) only become capable of meaningful discussion after the agency has issued its draft statement, and (2) do not significantly alter the environmental landscape presented in the draft. The plaintiffs also argue that the Forest Service should have supplemented its statements, but we do not find that the agency acted arbitrarily by failing to do so. Finally, the plaintiffs insist that the Forest Service should have strictly followed NEPA's procedures for indicating incompleteness. However, we conclude that NEPA does not require an agency to generate paperwork bearing no meaningful effect on the substance of pending proposals. Accordingly, we affirm.

I. BACKGROUND

The Forest covers more than 1.5 million acres in northern Wisconsin, contains mostly northern hardwood, mixed conifer, and aspen trees, and is home to more than 300 species of wildlife. It consists of two noncontiguous tracts of land: the Chequamegon, which is located on 858,400 acres in northwest and north-central Wisconsin, and the Nicolet, which occupies 661,400 acres in the northeastern part of the state. Though noncontiguous, the Chequamegon and the Nicolet have been managed by the Forest Service as a single entity since 1993. Among the many species cohabiting the Forest are the red-shouldered hawk, the goshawk, and the American marten. Each has been identified as “Regional Forester's Sensitive Species” and “Management Indicator Species.” Those designations require emphasis in planning, analysis of adverse effects on the population, habitat, and viability of the species, and monitoring during forest plan implementation.

In 2000, the Forest Service began planning a timber harvesting project in the McCaslin area on the Nicolet side of the Forest. In 2003, it issued a record of decision (“ROD”) indicating that it would pursue a project in the McCaslin area that consisted of 8,876 acres of logging, three miles of road construction, and seven miles of road reconstruction. That same year, the Forest Service approved five other timber harvesting projects for the Forest. Of relevance here, one of the approved projects proposed 7,000 acres of logging, two miles of road construction, and 24 miles of road reconstruction in the Forest's Northwest Howell area.

The Forest Service contends that both the McCaslin and the Northwest Howell projects are congruent with the current management plan for the Forest, issued in 2004, which seeks to return the Forest to conditions that more closely approximate a natural forest by increasing structural diversity through “selective harvest[ing].” In its opinion, removing certain trees will open up small gaps in the forest canopy allowing sunlight to reach a new generation of trees on the forest floor, reduce the density of stands to permit the remaining trees to grow more rapidly, and create a more complex forest structure that improves both the ecological and economic value of the stands. And returning the Forest to conditions that more closely approximate a natural forest will improve the habitat and long-term viability of a range of species living there.

The plaintiffs disagree. They insist that the McCaslin and Northwest Howell projects (as well as other projects proposed for the Forest) threaten the viability of the red–shouldered hawk, the goshawk, and the American marten by adversely affecting their natural habitats. To prevent this from happening, the plaintiffs administratively appealed the RODs issued for the McCaslin and Northwest Howell projects, and tried to informally resolve their dispute with the Forest Service. Unsuccessful, the plaintiffs initiated this action in the Eastern District of Wisconsin, under the Administrative Procedures Act (“APA”), 5 U.S.C. § 702, alleging violations of, among other things, NEPA and the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600–1687. The plaintiffs sought to enjoin the Forest Service, its Chief, and the Secretary of the United States Department of Agriculture from effectuating the McCaslin and Northwest Howell projects.

In two separate suits, the plaintiffs alleged 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 McCaslin and Northwest Howell projects will harm the red-shouldered hawk, goshawk, and American marten. The plaintiffs also alleged that the Forest Service violated NFMA by: (1) approving the two projects based on an outdated 1986 forest plan; (2) allowing greater road density in the McCaslin area than the 1986 plan permitted; and (3) failing to collect data indicating the effect of the project on management indicator species. Finding the cumulative impacts analysis for the two projects insufficient, the district court reversed the Forest Service's decision, remanded the case for reconsideration, and enjoined implementation of the McCaslin and Northwest Howell projects until the Forest Service completed an environmental impact statement (“EIS”) for each that complied with NEPA. Habitat Educ. Ctr. v. Bosworth ( Howell I ), 363 F.Supp.2d 1090, 1098–99 (E.D.Wis.2005); Habitat Educ. Ctr. v. Bosworth ( McCaslin I ), 363 F.Supp.2d 1070, 1078 (E.D.Wis.2005). The court denied the plaintiffs' motions in all other respects.

On remand, the Forest Service prepared a Supplemental Environmental Impact Statement (“SEIS”) for the McCaslin project and an SEIS for the Northwest Howell project. It issued a draft SEIS for each individual project in January 2006. Eight months later, in September 2006, the Forest Service issued final statements and re-approved both projects. The Forest Service then filed motions in the district court to lift the injunctions issued in McCaslin I and Howell I. The district court, however, denied the motions because it found that the Forest Service did not show that the statements complied with NEPA. The parties later filed cross-motions for summary judgment addressing the adequacy of the statements under NEPA.

In their motion for summary judgment, the plaintiffs argued that the statements did not comport with NEPA because, among other things, they failed to discuss reasonably foreseeable projects that were formally proposed after the issuance of each draft SEIS and were scheduled to occur on the Nicolet side of the Forest in the near future. The plaintiffs highlighted the Fishel Vegetation and Transportation Management Project that was proposed on March 9, 2006, six months before the Forest Service issued final statements for the McCaslin and Northwest Howell projects. The Fishel proposal identified the project's boundaries, stated its objective, and identified the precise action to be undertaken. It also estimated the number of acres that would be affected by the project and the volume of timber that would be made available for sale.

The district court determined that the Fishel project was reasonably foreseeable, as contemplated under NEPA, at the time the Forest Service issued the final statements for the McCaslin and Northwest Howell projects. But the court granted the Forest Service's motion to lift the injunction “because the draft [statements were] issued in January 2006, two months before the Fishel project was formally proposed.” Habitat Educ. Ctr. v. U.S. Forest Serv. ( McCaslin II ), 680 F.Supp.2d 1007, 1018 (E.D.Wis.2010) (emphasis in original); accord Habitat Educ. Ctr. v. U.S. Forest Serv. ( Howell II ), 680 F.Supp.2d 996, 1004 (E.D.Wis.2010). The court found that the Forest Service could not have meaningfully discussed the Fishel project in either the McCaslin or the Northwest Howell draft SEIS. And because the administrative record did not indicate that the anticipated effects of the Fishel project would seriously change the environmental landscape presented in the draft statements, the district court concluded that the Forest Service was not required to further supplement the McCaslin and Northwest Howell projects' respective statements. McCaslin II, 680 F.Supp.2d at 1019; Howell II, 680 F.Supp.2d at 1005. The...