Indiana Forest Alliance v. U.S. Forest Service
| Citation | 325 F.3d 851 |
| Decision Date | 08 April 2003 |
| Docket Number | No. 01-3316.,01-3316. |
| Parties | INDIANA FOREST ALLIANCE, INC., Heartwood, Inc., Sassafras Audubon Society, Inc., Regional Association of Concerned Environmentalists, Inc., Protect Our Woods, Inc., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, and Kenneth Day, Forest Supervisor, and Hoosier National Forest, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Thomas C. Buchele (argued), University of Pittsburgh, Pittsburg, PA, for Plaintiffs-Appellants.
Stephanie Tai (argued), John P. Almeida, Dept. of Justice, Environmental & Natural Resources Div., Washington, DC, for Defendants-Appellees.
Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
In 1999, the United States Forest Service proposed a comprehensive plan to maintain forest openings in the Hoosier National Forest. Pursuant to the National Environmental Policy Act, the Forest Service prepared an environmental assessment and found that the project would have no significant environmental impact and therefore would not require a more extensive environmental impact statement. Several groups of conservationists appealed the decision through administrative channels and then filed a claim in district court. On a motion for summary judgment, the district court held that because the Forest Service had not acted arbitrarily or capriciously in concluding that an environmental impact statement was not required, that decision must be upheld. We affirm.
The Hoosier National Forest (or the "Forest") consists of approximately 196,102 acres arranged in a checkerboard of private and federal lands across the state of Indiana. The Forest comprises about 27 percent of the total public land available for recreation and 40 percent of the public land open for hunting in Indiana. The United States Forest Service ("Forest Service") oversees the Forest and, as part of that duty, maintains small openings in wooded areas to provide habitat for plants and animals that benefit from vegetation in early successional stages.1 These forest openings occur as both natural openings, known as barrens, and artificial openings which are maintained by periodic treatments, such as mowing, cutting, or prescribed burning.
On March 20, 1998, the Forest Service announced a proposal for a more comprehensive approach to forest openings maintenance. In a letter known as a "scoping notice," the Forest Service proposed maintaining 972 openings covering 3,341 acres over a five-year period. According to the scoping notice, the purpose of the forest openings maintenance project was to provide early successional habitat for a variety of wildlife species, to add visual variety to the landscape, and to provide for recreational activities such as hunting, berry-picking, and wildlife observation.
In March 1999, the Forest Service sent a pre-decision environmental assessment (EA) of the proposed project to interested parties and provided a 30-day public comment period. The EA addressed three management alternatives: the "proposed action" alternative, a "mowing only" alternative, and a "no action" alternative. The Forest Service received about 90 responses from parties both opposed to, and in favor of, the project. Those opposed to the project, including several noted scientists in the field of ornithology, raised concerns as to the project's effects on neo-tropical migrant bird populations and other animals and plants in the Forest. After reviewing the comments on the draft EA, Kenneth Day, Forest Supervisor for the Hoosier National Forest, issued a Decision Notice and Finding of No Significant Impact (FONSI), which announced the Forest Service's plan to proceed with 947 openings on 3111 acres of the Forest.2 The FONSI was accompanied by a Final EA, which included a response to comments section.
Several groups of concerned citizens,3 including the Indiana Forest Alliance, Inc., filed an administrative appeal and on September 20, 1999, Forest Service hearing officer Steve Kessler recommended the affirmance of the Forest Service's decision to maintain the Forest openings as proposed. Regional Forester Robert T. Jacobs incorporated Officer Kessler's findings in full on each of the appeal issues and adopted his recommendation to affirm the Forest Service's decision on October 1, 1999. The plaintiffs then filed suit in federal court alleging that the Forest Service's decision to implement the forest openings project was unlawful on two grounds.4 First, the plaintiffs contended that pursuant to the National Environmental Policy Act (NEPA) the Forest Service was required to prepare a full environmental impact statement (EIS) for the project, not merely an environmental assessment. Second, the plaintiffs asserted that the Forest Service violated the National Forest Management Act (NFMA) by not collecting population data for management indicator species and by not establishing population objectives for sensitive species. Both parties moved for summary judgment, and the district court first ruled that the Forest Service had not acted arbitrarily or capriciously in finding no significant impact of the openings plan and therefore the agency was not required to prepare an EIS. The district court also determined that the Forest Service did not act arbitrarily or capriciously with respect to its monitoring duties under the NFMA when it decided to implement the forest openings maintenance project. The plaintiffs appeal.
On appeal the plaintiffs contend that the district court erred in granting summary judgment to the Forest Service because the record reflects substantial, unresolved scientific controversy regarding the impact of the Forest Service's decision on various bird species and therefore the Service violated NEPA by acting arbitrarily and capriciously in deciding not to prepare an EIS. Additionally, they contend that the Forest Service's decision was arbitrary and capricious in violation of the NFMA because the administrative record contains no site-specific data or other monitoring information regarding the impacts of the Forest openings program on many native wildlife species.
Under NEPA, federal agencies must include an EIS in every recommendation for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (emphasis added); City of Evanston v. Regional Transp. Authority, 825 F.2d 1121, 1124 (7th Cir.1987). Conversely, an agency is not required to prepare an EIS where the proposed action will not significantly affect the environment. See id. at 1125 (citing cases). The Council on Environmental Quality (CEQ) has promulgated regulations to establish uniform procedures for determining whether, when, and how to prepare an EIS. See 42 U.S.C. §§ 4341-4347 (establishing the CEQ); see also, 40 C.F.R. §§ 1500-1517. When a proposed action is neither one normally requiring an environmental impact statement nor one categorically excluded from the EIS process,5 the agency must prepare an environmental assessment (EA).6 An EA has been described as a "rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary." Rhodes, 153 F.3d at 788 (quoting Cronin v. United Stated Dep't of Agriculture, 919 F.2d 439, 443 (7th Cir.1990)). "[T]he purpose of an environmental assessment is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact statement." River Road Alliance v. Corps of Engineers of United States Army, 764 F.2d 445, 449 (7th Cir.1985). In this case, the Forest Service made a finding of no significant impact at the culmination of the environmental assessment process for the forest openings project, and therefore did not prepare an EIS.
The CEQ regulations require agencies to examine two dispositive considerations in formulating an EA to determine whether the proposed action may have a significant effect on the environment, thereby requiring an EIS: "context and intensity." 40 C.F.R. § 1508.27; 42 U.S.C. § 4332(2)(C); see also, Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1193 (9th Cir.1988).7 In this case the plaintiffs argue on appeal that the Forest Service failed to properly consider only one of the ten factors that the CEQ regulations identify as indicia of intensity: "(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial."8 The plaintiffs contend that the existence of scientific dispute over the effects of the proposed action on wildlife requires a finding that the action is significant, thereby demanding an EIS.
Hence, we begin our analysis of the plaintiffs' claim by looking at the language of the statute. This circuit has yet to address the appropriate manner in which agencies should address this specific indicia of intensity, and neither NEPA, nor its implementing regulations, defines "highly controversial." The primary rule of statutory interpretation is that words used in statutes must be given their ordinary and plain meaning. United States v. Wilson, 159 F.3d 280, 291 (7th Cir.1998). Webster's defines controversy as "a difference marked especially by the expression of opposing views." Webster's Third New International Dictionary 497 (1981). The term "controversial" is then modified by the term "highly," limiting the controversies worth consideration to only those that create a substantial dispute. Those controversies described by the regulation are further limited to only those that concern the effects of the regulation on the environment, and therefore mere opposition to a proposed action...
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