Habitat Educ. Ctr. v. United States Forest Serv.
| Decision Date | 14 January 2010 |
| Docket Number | Case No. 04-C-0254. |
| Citation | 680 F.Supp.2d 1007 |
| Parties | HABITAT EDUCATION CENTER, David Zaber, Ricardo Jomarron, Don Waller, and Environmental Law and Policy Center, Plaintiffs, v. UNITED STATES FOREST SERVICE, Tom Tidwell, Chief, U.S. Forest Service, and Tom Vilsack, Secretary, U.S. Department of Agriculture, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
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Bradley D. Klein, Howard A. Learner Kathrine B. Dixon, Chicago, IL, Brady C Williamson, Godfrey & Kahn SC, Madison WI, Sean 0. Bosack, Godfrey & Kahn SC Milwaukee, WI, for Plaintiffs.
Pamela S. West, United States Department of Justice, Washington, DC, for Defendants.
DECISION AND ORDER
In 2004, plaintiffs Habitat Education Center, David Zaber, Ricardo Jomarron Don Waller, and the Environmental Law and Policy Center brought this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, against the United States Forest Service and other federal officials and entities.1 Plaintiffs challenged the Forest Service's approval of the McCaslin timber project in the Chequamegon-Nicolet National Forest ("CNNF"). Plaintiffs alleged that 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.
In March 2005, I found that the Forest Service violated NEPA by failing to prepare an adequate environmental impact statement ("EIS") and enjoined the project until the Forest Service complied with NEPA. See Habitat Educ. Ctr., Inc. v. Bosworth ("Habitat I"), 363 F.Supp.2d 1070 (E.D.Wis.2005). On remand, the Forest Service prepared a supplemental EIS ("SEIS") that addressed the deficiencies I identified in the original EIS. In 2006, in reliance on the SEIS, the Forest Service issued a new Record of Decision ("ROD"), in which it re-approved the McCaslin project.
Following the preparation of the SEIS and new ROD, the Forest Service filed a motion to lift the injunction in this case. However, because the motion to lift the injunction did not attempt to show that the SEIS complied with NEPA, I denied the motion without prejudice. The parties have since filed cross-motions for summary judgment addressing the adequacy of the SEIS, and I consider below whether the Forest Service has complied with NEPA and whether the injunction should be lifted.
I have extensively discussed the history of the CNNF and the background to plaintiffs' claims in other opinions. See Habitat Educ. Ctr. v. U.S. Forest Serv. ("Habitat V"), 603 F.Supp.2d 1176 (E.D.Wis.2009); Habitat Educ. Ctr. v. U.S. Forest Serv. ("Habitat IV"), 593 F.Supp.2d 1019 (E.D.Wis.2009). I will not repeat that discussion here except to note that, in bringing this action, plaintiffs express concern over the Forest Service's management of three sensitive species that inhabit the CNNF: American Pine Marten, Northern Goshawk, and Red-shouldered Hawk. They argue that the Forest Service has not adequately analyzed the potential impact of the McCaslin project on the habitat of these species.
The Forest Service argues that plaintiffs did not have standing to seek the original injunction in this case and that, even if they did, they do not currently have standing to oppose the Forest Service's motion to lift the injunction. To show that they have standing to seek injunctive relief, plaintiffs must demonstrate that they are under threat of suffering an injury-in-fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. See, e.g., Summers v. Earth Island Inst, — U.S. —, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009). Two of the five plaintiffs are organizations, and for these plaintiffs to establish standing, they must show that they each have at least one member that has standing to seek injunctive relief. Id.
Before I enjoined the McCaslin project, plaintiffs submitted affidavits showing that the individual plaintiffs and the members of the organizational plaintiffs regularly visited the CNNF and the McCaslin project area, and that the McCaslin project would harm their professional and recreational interests in the area. (Exs. 1 & 2, Docket Entry # 31.) Further, plaintiffs recently filed supplemental affidavits indicating that they continue to visit the CNNF and the project area and that the present iteration of the McCaslin project would harm their professional and recreational interests in the area. (Exs. 2-4, Docket Entry #186.) These affidavits satisfactorily demonstrate that plaintiffs have personal stakes in this lawsuit sufficient to warrant their invocation of federal court jurisdiction. Summers, 129 S.Ct. at 1149. Therefore, plaintiffs have standing to oppose the Forest Service's request to lift the injunction against the McCaslin project.
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 Citizens Group v. Mineta, 349 F.3d 938, 952 (7th Cir.2003). 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. ()
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 McCaslin project. 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 § 4332(2)(C). An EIS is "a detailed analysis and study conducted to determine if, or the extent to which, a particular agency action will impact the environment." Highway J, 349 F.3d at 953. Requiring an agency to prepare an EIS serves two purposes. First," '[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.'" Dep't of Transp. v Public Citizen, 541 U.S. 752, 768, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)) (alteration in original). Second, "it 'guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.'" Id. Thus, the agency must "articulate why [it has] settled upon a particular plan and what environmental harms (or benefits) [its] choice entails." Simmons v. U.S. Army Corps of Eng'rs, 120 F.3d 664, 666 (7th Cir.1997). The EIS must show that agency officials have "[thought] through the consequences of—and alternatives to— their contemplated acts," and must ensure that "citizens get a chance to hear and consider the rationales the officials offer." Id. Stated differently, the agency must demonstrate that it "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). However, "[w]hat constitutes a 'hard look' cannot be outlined with rule-like precision," Nat'l Audubon Soc'y v. Dep't of the Navy, 422 F.3d 174, 185 (4th Cir.2005), and it is a standard that "is not susceptible to refined calibration," Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001) (internal quotation marks and citation omitted). Rather than apply a rigid standard, a court must make a "pragmatic judgment" as to whether the agency has fostered the two principal purposes of an EIS: informed decisionmaking and informed public participation. Id.
In making its pragmatic judgment, a court must be careful not to " 'flyspeck' an agency's environmental analysis looking for any deficiency, no matter how minor." Nat'l Audubon Soc'y, 422 F.3d at 186. With a document as complicated and mired in technical detail as an EIS, it will always be possible to point out some potential defect or shortcoming, or to suggest some additional step that the agency could have taken to improve its environmental analysis. An EIS is unlikely to be perfect, and setting aside an EIS based on minor flaws that have little or no impact on informed decisionmaking or informed public participation would defy common sense. Thus, rather than getting bogged down in possible technical flaws, a court must "take a holistic view of what the agency has done to assess environmental impact." Id. Further, courts must remember that it is the agency, and not the court, that has the technical expertise required to perform the environmental analysis in the first place. This means that judicial review of an EIS must be deferential, especially when it comes to the scientific and technical details that make up the heart of the analysis. Citizens for Alternatives to Radioactive Dumping v. Dep't of Energy, 485 F.3d 1091, 1098 (10th Cir.2007) (). Of course, deferential review does not mean no review, and courts must ensure that agencies carry out their duties under NEPA, make reasoned choices, and provide a discussion that fully and frankly explains the environmental consequences of a proposed action. However, to strike a proper balance between deference and a "searching and careful" inquiry, Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), a court may invalidate an EIS only if,...
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Habitat Educ. Ctr., Inc. v. United States Forest Serv.
...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......
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