Heartwood, Inc. v. Agpaoa

Decision Date13 December 2010
Docket NumberNo. 09-5761,09-5761
Citation628 F.3d 261,71 ERC 2185
PartiesHEARTWOOD, INC.; Kentucky Heartwood, Inc., Plaintiffs-Appellants, v. Elizabeth L. AGPAOA, Regional Forester; United States Forest Service, an Agency of the United States Department of Agriculture, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Joe F. Childers, Getty & Childers, PLLC, Lexington, Kentucky, for Appellants. Allen M. Brabender, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Joe F. Childers, Getty & Childers, PLLC, Lexington, Kentucky, for Appellants. Allen M. Brabender, United States Department of Justice, Washington, D.C., for Appellees.

Before: MARTIN, COLE, and CLAY, Circuit Judges.

OPINION

COLE, Circuit Judge.

Plaintiffs-Appellants Heartwood, Inc. and Kentucky Heartwood, Inc. (collectively "Heartwood") are non-profit corporations active in forest and species protection. Heartwood appeals the district court's judgment granting Defendants-Appellees Elizabeth L. Agpaoa, the Regional Forester for the Daniel Boone National Forest ("Forest"), and the U.S. Forest Service (collectively "Forest Service") judgment on the administrative record. Heartwood claims that the Forest Service enacted the 2004 Forest Plan ("Plan") for the Forest in violation of the procedures mandated by 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 et seq. Specifically, Heartwood alleges that, in promulgating the Plan, the Forest Service failed to consider a "no commercial logging" alternative and account for the environmental effects of herbicide use through an environmental impact statement ("EIS"). Heartwood also challenges the Forest Service's environmental assessment ("EA") for the 2003 Ice Storm Recovery Project ("Project") in the Forest, undertaken pursuant to the Plan; on this issue, Heartwood argues that the EA inadequately addressed the effects of herbicide application in the Project. Heartwood brings these claims against the Forest Service, a federal agency, under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq.

For the following reasons, we REVERSE the district court's judgment and REMAND this case to the district court with instructions to dismiss for want of jurisdiction.

I.
A. Statutory Background

Congress enacted NEPA "[t]o declare a national policy which will encourage productive and enjoyable harmony betweenman and his environment[, and] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321. Under NEPA, "federal officials are required to assume the responsibility that the Congress recognized ... as the obligation of all citizens: to incorporate the consideration of environmental factors into the [federal] decision-making process." Envtl. Def. Fund v. Tenn. Valley Auth., 468 F.2d 1164, 1174 (6th Cir.1972). Officials comply with NEPA "primarily by [conducting] an [EIS] for any 'major Federal action significantly affecting the quality of the human environment.' " Burkholder v. Peters, 58 Fed.Appx. 94, 96 (6th Cir.2003) (quoting 42 U.S.C. § 4332(2)(C)). An EIS is a "detailed statement" that describes:

(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C). If an agency does not believe that the federal action will have a "significant impact" on the environment, then NEPA's regulations permit the agency to conduct a less exhaustive EA. 40 C.F.R. §§ 1501.4(b), 1508.9. If the EA reveals a significant impact, then the agency must prepare an EIS; if it does not, then the agency may simply issue a finding of no significant impact. 40 C.F.R. § 1501.4.

Meanwhile, NFMA governs the National Forest Service and Regional Foresters' management of the national forest system; under that act, the Secretary of Agriculture must "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). A forest must be revised at least every fifteen years, or sooner if conditions in the forest "have significantly changed." Id. § 1604(f)(5). "Implementation of the forest plan is achieved through individual site-specific projects, and all projects must be consistent with the forest plan." Northwoods Wilderness Recovery v. U.S. Forest Serv., 323 F.3d 405, 407 (6th Cir.2003) (citing 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10). The NFMA forest plans and site-specific projects must also comport with NEPA's requirements, including preparation of an appropriate EIS or EA.

B. Factual Background

Heartwood, Inc. and Kentucky Heartwood, Inc. are not-for-profit corporations involved in the protection of the forests and species of the eastern United States and Kentucky, respectively. Both organizations are interested in protection of the Forest in Kentucky.

1. The Plan

Until the consideration and passage of the current Plan, the Forest Service managed the Forest under a Forest Plan approved on September 27, 1985. Because of its duty to revise a Forest Plan at least every fifteen years, the Forest Service published notice that it intended to prepare an EIS to revise its Forest Plan on June 21, 1996. After a period of identifying the issues to be addressed, 40 C.F.R. §§ 1502.4, 1508.25, the Forest Service received numerous comments from the public, including Heartwood. These commentscalled for, among other things, the Forest Service's consideration of a "no commercial logging" alternative and no herbicide application.

After this process, the Forest Service completed its draft EIS on April 1, 2003. The draft EIS proposed eight alternative plans for management of the Forest, six of which the Forest Service considered in detail and two of which it did not. Of note, the Forest Service considered Alternative B-1, a minimal-management option, in detail, and considered Alternative B, a no-management option, not in detail. The Forest Service, meanwhile, recommended adoption of Alternative C-1, which emphasized maintenance and restoration of ecological processes while facilitating public enjoyment and recreation. During the next period of public comment, 40 C.F.R. § 1506.10(b)(1), Heartwood and others made numerous comments on the draft EIS. A number of these comments, echoing those sent earlier, protested the Forest Service's failure to consider a reasonable "no commercial logging" alternative representative of public opinion, or to discuss the effects of and limits on herbicide use. These comments further proposed several additional alternatives.

On April 16, 2004, the Forest Service issued its final EIS and the Regional Forester adopted the current Plan, implementing Alternative C-1. Heartwood appealed the final EIS and Plan, but the Forest Service affirmed its prior decision.

2. The Project

On February 15, 2003, a significant ice storm destroyed trees on over 25,000 acres of the Forest. As a result, the Forest Service determined that restoration efforts in the Forest would require, among other things, commercial logging of 4,845 acres of damaged and downed trees, and control of non-native invasive plants through removal on 1,000 acres, in part by careful application of herbicides on approximately 700 acres. Although the Forest Service decided ultimately to adopt this course, it considered—and rejected—an alternative involving no commercial logging or herbicide application. The Forest Service undertook numerous studies on herbicide use in the Project before reaching its decision.

On November 11, 2004, the Forest Service chose the aforementioned alternative including commercial logging and herbicide application, and published an EA stating that the Project merited a finding of no significant impact. During the period of public comment, 36 C.F.R. § 215.6(a)(1)(i), Heartwood and others sent comments protesting commercial logging, herbicide application, and the Forest Service's decision not to prepare an EIS. However, several subsequently published reports by other agencies agreed with the Forest Service's conclusions on the Project.

Heartwood appealed the EA, but the Forest Service affirmed its prior decision. As of November 18, 2008 (the most recent update on the Project's status in the record), the Project was underway, and the Forest Service had yet to complete 3,754 acres of projected commercial logging and 600 acres of herbicide application. At oral argument, the Forest Service indicated that the Project is ongoing.

3. The Current Litigation

Heartwood filed its complaint in the United States District Court for the Eastern District of Kentucky appealing the Forest Service's decisions on both the Plan and the Project. Heartwood moved for judgment on the administrative record, seeking declaratory and injunctive relief for numerous violations of NEPA, NFMA, the Endangered Species Act ("ESA"), 16 U.S.C. § 1533 et seq., and for other unrelated errors. On April 27, 2009, the districtcourt denied Heartwood's motion and instead entered judgment in full for the Forest Service. This appeal followed.

Here, Heartwood advances three main claims: (1) the Plan is invalid under NEPA and NFMA because the Forest Service failed to consider the reasonable alternative of "no commercial logging"; (2) the Plan is invalid under NEPA because the Forest Service failed to consider the effects of herbicides generally; and (3) the Project's EA is invalid under NEPA because the Forest Service failed to consider and to discuss adequately...

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