Heartwood Inc. et al v. United States Forest Service et al, No. 00-1230

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore Bauer, Manion, and Williams; Williams
Citation230 F.3d 947
Parties(7th Cir. 2000) HEARTWOOD, INC., et al., Plaintiffs-Appellants, v. United States Forest Service, et al., Defendants-Appellees
Decision Date18 October 2000
Docket NumberNo. 00-1230

Page 947

230 F.3d 947 (7th Cir. 2000)
HEARTWOOD, INC., et al., Plaintiffs-Appellants,
v.
United States Forest Service, et al., Defendants-Appellees.
No. 00-1230
In the United States Court of Appeals For the Seventh Circuit
Argued June 6, 2000
Decided October 18, 2000

Appeal from the United States District Court for the Southern District of Illinois. No. 98 C 4289--J. Phil Gilbert, Judge.

Page 948

Before Bauer, Manion, and Williams, Circuit Judges.

Williams, Circuit Judge.

Heartwood, Inc., Jim Bensman, and Mark Donham (collectively, "Plaintiffs") challenge the district court's grant of summary judgment in favor of Defendants, the United States Forest Service and Mike Dombeck, Chief of the Forest Service, as to Count II of their complaint. In Count II, Heartwood alleged that when the Forest Service ("Service") adopted a rule excluding certain classes of Service action from procedural safeguards designed to determine the environmental impact of those actions, it violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. sec. 4321, et seq., and the Administrative Procedures Act ("APA"), 5 U.S.C.

Page 949

sec. 706. Plaintiffs maintain that the Service violated certain Council on Environmental Quality ("CEQ") regulations, by: (1) not conducting an environmental assessment ("EA") and issuing a finding of no significant environmental impact or seeking an environmental impact statement ("EIS"); (2) failing to address or consider extraordinary circumstances before issuing the categorical exclusions ("CEs"); and (3) utilizing a case-by-case CE procedure. The district court concluded that the Service did not need to prepare an EA or an EIS before adopting the rule on categorical exclusions and granted the Service's motion for summary judgment on that claim. Heartwood now appeals, and, because neither NEPA nor the APA requires the Service to perform an EA or an EIS before promulgating its procedures for creating CEs, we affirm the judgment of the district court.

I

Plaintiffs mount a facial challenge to certain categorical exclusions ("CEs") that have been promulgated by the United States Forest Service, pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. sec. 4321 et seq., as well as the Administrative Procedures Act, 5 U.S.C. sec. 706.1 NEPA was enacted to regulate government activity that significantly impacts the environment and "to help public officials make decisions that are based on an understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." 40 C.F.R. sec. 1500.1(c). As such, NEPA is the "basic national charter for protection of the environment." Id.

The Council on Environmental Quality ("CEQ") administers NEPA and promulgates regulations related to NEPA that are binding on federal agencies. See 42 U.S.C. sec.sec. 4342, 4344(3); 40 C.F.R. sec.sec. 1501-08. Every federal agency then drafts its own administrative regulations to implement and supplement the CEQ regulations. See 40 C.F.R. sec. 1507.3.

To effectuate the goals of NEPA, the CEQ created rules requiring agencies to establish implementing procedures that facilitate the evaluation of management decisions and the environmental effects of proposed federal agency actions. Under these guidelines, an agency must identify those actions which normally require an environmental impact statement, or "EIS." See 40 C.F.R. sec. 1501.4(a)(1). An EIS is required for "major federal actions significantly affecting the quality of the environment." 40 C.F.R. sec. 1508.9. The report itself is a detailed analysis and study conducted to determine if, or the extent to which, a particular agency action will impact the environment.

In order to determine whether a particular proposed action requires the preparation of an EIS, agencies perform an environmental assessment ("EA"). An EA is a public document (shorter than an EIS) that contains information pertaining to the need for the proposed action, other alternatives, the environmental impact of the proposal and its alternatives, and other relevant information. An agency may prepare an EA for one of several reasons: (1) to provide evidence and analysis that establish whether or not an EIS or a Finding of No Significant Impact ("FONSI") should be prepared; (2) to help the agency comply with NEPA when no EIS is necessary; and (3) to facilitate preparation of an EIS when one is necessary. See 40 C.F.R. sec. 1508.9(a).

When an agency identifies certain actions that do not have any significant effect on the environment, the agency may classify those actions as categorical exclusions or CEs. Under NEPA and CEQ regulations, if an action falls within a particular categorical exclusion, the agency need prepare

Page 950

neither an EIS nor an EA. The CEQ requires federal agencies to design procedures for establishing CEs. Specifically, a CE is a

category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (sec. 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide to prepare environmental assessments for the reasons stated in sec. 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.

40 C.F.R. sec. 1508.4.

At issue are a set of new policies and procedures established to replace those originally published in the Federal Register in June 1985 (50 Fed. Reg. 26078). Specifically, Plaintiffs are concerned about the impact of a set of CEs for timber harvests on Service land. When the Service adopted the new policy and procedures that set forth the challenged CEs, it published a notice which read

Based on experience and environmental analysis, the implementation of the revised Forest Service environmental policy and procedures will not significantly affect the quality of the human environment, individually or cumulatively. Therefore, this action is categorically excluded from documentation in an environmental impact statement or an environmental assessment.

The Service gave notice on April 29, 1991 that it was adopting revised policies and procedures for implementing NEPA and CEQ regulations and set forth its proposal for those new policies and procedures. The Service did not produce a formal document in the form of an EA or an EIS prior to publishing the notice. After the Service made the proposed new policies and procedures available for public comment, Plaintiff Bensman raised his concerns in a comment submitted on June 25, 1991. Plaintiff Dobham presented his comments one day later. In a notice published on September 18, 1992, the Service announced that it had adopted the new policies and procedures that would become effective September 21, 1992. Afterwards, Plaintiff Donham made a Freedom of Information Act ("FOIA") request seeking correspondence between the Service and the CEQ about the process that led to the new policies and procedures and later requested records regarding the Service promulgation of the challenged NEPA rules. None of the documents sent to Donham was correspondence between the CEQ and Service concerning the challenged rulemaking process.

Plaintiffs' complaint contained three separate counts.2 On appeal, Plaintiffs challenge only the district court's ruling on Count II. In short, Plaintiffs maintain that, in adopting its procedures for identifying CEs, the Service violated NEPA and the APA, as well as other CEQ and Department of Agriculture regulations.3 They

Page 951

claim that the Service, (1) failed to conduct an EA on the proposed CE procedures and instead issued a finding of no significant impact ("FONSI") for the CE procedures (or alternatively, failed to conduct a more extensive EIS once it was known that a FONSI was not appropriate); (2) failed to address or consider extraordinary circumstances before issuing the CEs; and (3) utilized a "case-by-case" CE procedure in part in an attempt to avoid NEPA requirements. On a motion for summary judgment, the district court ruled in favor of the Service on Count II.4

II

A. Justiciability

As always, before the court may consider the merits of a case, we must determine whether Plaintiffs' have presented a justiciable claim. The Service insists that since Plaintiffs have challenged Service plans rather than a specific action that definitively affects a particular forest area, this challenge raises a question as to both standing and ripeness.

1. Standing

The Service maintains that Plaintiffs have failed to establish that they suffered a cognizable injury. Under Article III of the Constitution, before a plaintiff may seek redress in court, he or she must have standing. See U.S. Const. art. III. To have standing, Plaintiffs must show three things: (1) injury in fact (the actual or imminent invasion of a concrete and particularized interest), (2) causation (a causal connection between the defendant's actions and the injury), and (3) redressability (the likelihood that the injury is redressable by a favorable court decision). See Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 103-04 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Siding with Heartwood, the district court held that plaintiffs had standing and wrote

[B]ecause they do allege that they use and enjoy the Service lands upon which their claims are based, both in the Southern District of Illinois and elsewhere throughout the United States, Service decisions here 'will diminish this use and enjoyment.' This potential harm would result directly from the Service's lack of compliance with NEPA and federal regulations, so that the harms would be 'causally connected' to...

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65 practice notes
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...Ohio Forestry , 523 U.S. at 727, 118 S.Ct. 1665 ). See also Kern , 284 F.3d at 1071 (citing Heartwood, Inc. v. U.S. Forest Serv. , 230 F.3d 947, 953 (7th Cir. 2000) and joining the Seventh Circuit in holding that plaintiffs could challenge an agency's failure to prepare an EA or EIS under N......
  • Center for Biological Diversity v. Brennan, No. C 06-7062 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 21, 2007
    ...Cir.2003), rev'd on other grounds, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see also Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947, 951-53 (7th Cir.2000) (the denial of a procedural right to participate in the rule-making process on a subject impacting the plaintiffs' enjoy......
  • Wildlaw v. U.S. Forest Service, Civil Action No. 2:03cv682-MHT (WO).
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • January 26, 2007
    ...(9th Cir.2006) (concluding that environmental plaintiffs have standing for their ARA challenge); Heartwood, Inc, v. U.S. Forest Service, 230 F.3d 947, 951-52 (7th Cir.2000) (same, where plaintiffs challenged CEs under The causation and redressability elements are met as well. "Once . . . a ......
  • Sierra Club v. Bosworth, No. 05-16989.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2007
    ...The district court found that, in accordance with the Seventh Circuit's decision in Heartwood, Inc. v. United States Forest Service, 230 F.3d 947, 954 (7th Cir.2000), the Forest Service is not required to produce an EIS or an EA prior to promulgating a CE. The district court found that the ......
  • Request a trial to view additional results
43 cases
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...Ohio Forestry , 523 U.S. at 727, 118 S.Ct. 1665 ). See also Kern , 284 F.3d at 1071 (citing Heartwood, Inc. v. U.S. Forest Serv. , 230 F.3d 947, 953 (7th Cir. 2000) and joining the Seventh Circuit in holding that plaintiffs could challenge an agency's failure to prepare an EA or EIS under N......
  • Center for Biological Diversity v. Brennan, No. C 06-7062 SBA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • August 21, 2007
    ...Cir.2003), rev'd on other grounds, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); see also Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947, 951-53 (7th Cir.2000) (the denial of a procedural right to participate in the rule-making process on a subject impacting the plaintiffs' enjoy......
  • Wildlaw v. U.S. Forest Service, Civil Action No. 2:03cv682-MHT (WO).
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • January 26, 2007
    ...(9th Cir.2006) (concluding that environmental plaintiffs have standing for their ARA challenge); Heartwood, Inc, v. U.S. Forest Service, 230 F.3d 947, 951-52 (7th Cir.2000) (same, where plaintiffs challenged CEs under The causation and redressability elements are met as well. "Once . . . a ......
  • Sierra Club v. Bosworth, No. 05-16989.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2007
    ...The district court found that, in accordance with the Seventh Circuit's decision in Heartwood, Inc. v. United States Forest Service, 230 F.3d 947, 954 (7th Cir.2000), the Forest Service is not required to produce an EIS or an EA prior to promulgating a CE. The district court found that the ......
  • Request a trial to view additional results
19 provisions
  • Part III
    • United States
    • Federal Register March 24, 2009
    • March 24, 2009
    ...analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. Furthermore, this final action will not have any effect on the quality of the environment under the NEPA and is categorica......
  • Part IV
    • United States
    • Federal Register October 15, 2008
    • October 15, 2008
    ...analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd 230 F.3d 947, 954-55 (7th Cir. By including the Department's CEs in this rule, the Department is merely moving established categories and language address......
  • Reports and guidance documents; availability, etc.: National Environmental Policy Act; land management plans; developing, revising, or amending documentation; categorical exclusion,
    • United States
    • Federal Register December 15, 2006
    • December 15, 2006
    ...analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999), aff'd, 230 F.3d 947, 954-56 (7th Cir. The Forest Service believes that the point in the planning process when direct, indirect and cumulative effects occur and ......
  • National Environmental Policy Act; implementation,
    • United States
    • Federal Register August 16, 2007
    • August 16, 2007
    ...analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd 230 F.3d 947. 954-55 (7th Cir. Regulatory Impact This proposed rule has been reviewed under USDA procedures and Executive Order 12866, Regulatory Planning......
  • Request a trial to view additional results

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