Heartwood, Inc. v. U.S. Forest Service, 98-CV-4289-JPG.

CourtUnited States District Courts. 7th Circuit. Southern District of Illinois
Writing for the CourtGilbert
Citation73 F.Supp.2d 962
PartiesHEARTWOOD, INC.; Jim Bensman; and Mark Donham, Plaintiffs, v. UNITED STATES FOREST SERVICE; and Michael Dombeck, Chief, United States Forest Service, Defendants.
Docket NumberNo. 98-CV-4289-JPG.,98-CV-4289-JPG.
Decision Date28 September 1999
73 F.Supp.2d 962
HEARTWOOD, INC.; Jim Bensman; and Mark Donham, Plaintiffs,
UNITED STATES FOREST SERVICE; and Michael Dombeck, Chief, United States Forest Service, Defendants.
No. 98-CV-4289-JPG.
United States District Court, S.D. Illinois.
September 28, 1999.

Page 963


Page 964

Matt Kenna, Kenna & Hickcox, Durango, CO, for Heartwood, Inc, Jim Bensman and Mark Donham.

William E. Coonan, Asst. U.S. Atty., Fairview Heights, IL, Albert C. Lin, U.S. Dept. of justice Environmental & Natural Resources Div., Washington, DC, for U.S. Forest Service, Defendant.

Albert C. Lin, U.S. Dept. of Justice Environmental & Natural Resources Div., Washington, DC, Vince DeWitte, U.S. Dept. of Agriculture Natural Resources Div., Washington, DC, Marcia MacNaughton, U.S. Dept. of Agriculture, Washington, DC, for Mike Dombeck, Defendant.


GILBERT, Chief Judge.

Pending before the Court are the parties' cross-motions for summary judgment (docs. 20 & 21). Both parties responded (docs. 27 & 29) and replied (docs. 29 & 30).

This complaint is a three-count facial challenge to certain Categorical Exclusions ("CE's") promulgated by the Forest Service ("FS"), pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. At issue are new policies and procedures to replace those originally published in the Federal Register in June, 1985, (50 FR 26078), as well as a particular CE regarding timber harvests on FS land. The new policies and procedures were issued as Chapter 1950 of the Forest Service Manual ("FSM") and as Forest Service Handbook ("FSH") § 1909.15, Environmental Policy and Procedures Handbook. The challenged CE's were adopted purportedly pursuant to NEPA and the Administrative Procedures Act ("APA") and are described and contained in Forest Service Handbook ("FSH") 1909.15, Chapter 30, §§ 31.1b(2), (4) through (8), and §§ 31.2(1) through (9). The final rule adopting the challenged CE's, entitled "National Environmental Policy Act: Revised Policy and Procedures, AGENCY: Forest Service, USDA" was published in the Federal Register, Vol. 57, No. 182, on September 18, 1992.

The plaintiffs assert that the defendants acted contrary to law when they promulgated and adopted the challenged CE's by failing to follow all procedural requirements and mandates. The plaintiffs assert, therefore, that the challenged CE's are invalid on their face and should be declared null and void. The plaintiffs also ask the Court to grant specific injunctive relief and enjoin the defendants from utilizing the challenged CE's. The plaintiffs allege that the actions authorized under these challenged CE's may have a significant effect on the environment but have not been given the requisite hard look under NEPA.

The Court notes that this complaint does not challenge the FS' application of a CE. This complaint actually challenges the FS' adoption of the CE itself and the process by which the adoption took place. For all three counts, the plaintiffs ask the Court to (1) declare the relevant CE's null and void and as violative of the APA and NEPA; (2) declare null and void all FS project decisions regarding these challenged CE's; and (3) issue a nationwide injunction against the FS undertaking or allowing any of the activities pursuant to the challenged CE's.

I Background


NEPA is the "basic national charter for protection of the environment." 40 C.F.R.

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§ 1500.1. Its purpose is 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." Id. at 1500.1(c); Fund for Animals v. Babbitt, 89 F.3d 128, 130 (2nd Cir.1996). NEPA established a national policy of protecting the environment as a way of promoting human health. 42 U.S.C. § 4321.


NEPA also created the Council on Environmental Quality ("CEQ"), which is the agency that administers NEPA and promulgates regulations related to NEPA that are binding on federal agencies. 42 U.S.C. § 4342; 42 U.S.C. § 4344(3); 40 C.F.R. §§ 1501-08. One of those regulations requires all federal agencies like the FS to adopt procedures implementing CEQ's regulations and provides that:

"[w]hen the agency is a department, major subunits are encouraged (with the consent of the department) to adopt their own procedures. Such procedures shall not paraphrase these regulations. They shall confine themselves to implementing procedures. Each agency shall consult with the [CEQ] while developing its procedures and before publishing them in the Federal Register for comment.... The procedures shall be adopted only after an opportunity for public review and after review by the [CEQ] for conformity with the Act and these regulations ..."

40 C.F.R. § 1507.3.

Reviewing courts give these CEQ regulations "substantial deference." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 1848-49, 104 L.Ed.2d 351 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). These regulations require every federal agency to draft its own administrative regulations to implement and supplement the regulations promulgated by CEQ. 40 C.F.R. § 1507.3.

Together, CEQ and NEPA, have established a complex system for evaluating environmental management decisions and the environmental effects of proposed federal agency actions. See 40 C.F.R. Parts 1500-08. This system consists of environmental impact statements, environmental assessments and categorical exclusions. The Department of Agriculture adopted environmental regulations to fulfill its NEPA obligations, see 7 C.F.R. § 3100.41(e), and the FS Environmental Handbook is meant to be a layer of agency rules one level below these. See 7 C.F.R. § 3100.41(e); Environmental Handbook, section 01.3; Rhodes v. Johnson, 153 F.3d 785, 788 (7th Cir.1998). CEQ directs agencies to establish implementing procedures to determine which actions "normally require[] an environmental impact statement." 40 C.F.R. § 1501.4(a)(1). Environmental impact statements are detailed reports completed after a thorough analysis and study. The CEQ regulations also direct agencies to adopt implementing procedures to determine which actions normally do not have any significant impact on the environment and so need not be the subject of any study or report; these actions are referred to as "categorical exclusions." 40 C.F.R. § 1501.4(a)(2); Johnson, 153 F.3d at 788.

Environmental impact statements ("EIS") are the most detailed form of analysis. Federal agencies like the FS must prepare an EIS for "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.3. Environmental assessments are concise public documents "that provide analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact on the environment." Mahler v. U.S. Forest Service, 927 F.Supp. 1559, 1570-71 (S.D.Ind.1996), citing 40 C.F.R. § 1508.9. "An environmental assessment must include discussions on the need for the proposal, other alternatives, the environmental impact of the proposal and its alternatives, and other information." Mahler, 927 F.Supp. at 1570-71. Agencies prepare EA's for several reasons,

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including: (1) to provide evidence and analysis that determine whether or not to prepare an EIS or a Finding of No Significant Impact ("FONSI"); (2) to help the agency comply with NEPA when no EIS is necessary; and (3) to "[f]acilitate preparation of an [EIS] when one is necessary." 40 C.F.R. § 1508.9(a).

CEQ and NEPA regulations allow agencies to avoid the preparing either an EIS or an EA if a proposed action properly comes within a "categorical exclusion." NEPA regulations provide in pertinent part:

"categorical exclusion" means 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 (§ 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 § 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. § 1508.4.

Federal agencies must adopt procedures for establishing CE's and must provide for "extraordinary circumstances" in which otherwise categorically excluded actions would require an EA or EIS; these extraordinary circumstances exceptions are for actions which may have a significant environmental effect despite their inclusion as a CE activity. The CE's at issue here are contained and described in 1909.15 of the FS Handbook ("FSH"), Chapter 30, §§ 31.1b(2), (4) through (8), and §§ 31.2(a) through (9).

A. The complaint

Count I asserts that the defendants violated C.F.R. § 1507.3, by failing to obtain the necessary review by CEQ of the challenged CE's prior to adopting them. In the process of promulgating FS NEPA procedures such as these, CEQ must review all CE's before the FS adopts them to assure the CE's compliance with CEQ and NEPA regulations. See 40 C.F.R. § 1507.3(a); 48 Fed.Reg. at 34,265. The plaintiffs assert in Count I that the defendants failed to obtain this required CEQ review.

Count II asserts that the defendants violated NEPA and the APA, 5 U.S.C. § 706, as well as CEQ and Department of Agriculture ("DOA") regulations when adopting the challenged CE's. The plaintiffs allege that these violations occurred by the following actions of the defendants: (1) failing to conduct an environmental assessment ("EA") and subsequently issuing a Finding of No Significant Impact ("FONSI"), or if a...

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