Lockhart v. Kenops, 89-5575SD

• Decision Date: 07 March 1991
• Docket Number: No. 89-5575SD,89-5575SD
• Citation: 927 F.2d 1028
• Parties: 21 Envtl. L. Rep. 20,994 James LOCKHART, Gemma Lockhart, Appellant, Sandra Reub, American Indians Against Desecration, v. Darral KENOPS, Forest Supervisor, Black Hills National Forest, United Forest Service; Gary Cargill, Regional Forest Service; F. Dale Robertson, United States Forest Service; John Block, Secretary of Agriculture; Verla Van Etten, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1028

927 F.2d 1028

21 Envtl. L. Rep. 20,994

James LOCKHART, Gemma Lockhart, Appellant, Sandra Reub, American Indians Against Desecration, v. Darral KENOPS, Forest Supervisor, Black Hills National

Forest, United Forest Service; Gary Cargill, Regional

Forest Service; F. Dale Robertson, United States Forest

Service; John Block, Secretary of Agriculture; Verla Van

Etten, Appellees.

No. 89-5575SD.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 10, 1990.

Decided March 7, 1991.

Larry Leventhal, Minneapolis, Minn., and Bruce Ellison, Rapid City, S.D., for appellant.

Robert L. Klarquist, Washington, D.C., for appellees.

Before WOLLMAN and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.

MAGILL, Circuit Judge.

Gemma Lockhart appeals from an order of the district court ¹ granting summary judgment to the government in her action to enjoin the exchange of a parcel of federal land. On appeal, Lockhart argues that the Forest Service's decision to go ahead with the exchange without preparing an environmental impact statement (EIS) was arbitrary and capricious and violated the National Environmental Policy Act (NEPA). Lockhart also argues that the decision to proceed with the exchange violated the first amendment of the Constitution and the American Indian Religious Freedom Act (AIRFA) because the exchange will interfere with the exercise of Lockhart's religion and because Indian religious leaders were not consulted. Because we find that the Forest Service's decision was not arbitrary and capricious and did not violate NEPA, AIRFA or the first amendment, we affirm.

I. BACKGROUND

A. The Administrative Process

This action concerns a land exchange between the federal government and Verla Van Etten, the intervenor below. Proceedings have been going on for nearly nine years. On September 22, 1982, Van Etten proposed exchanging 160 acres of land she owned in the Black Hills of South Dakota for 100 acres owned by the Forest Service in another part of the Black Hills. It is this second parcel, located along the edge of Dark Canyon in a rural area near Rapid City, that the parties are arguing about. The purpose of the exchange, from the Forest Service's point of view, was to consolidate federal lands; the Dark Canyon parcel was surrounded on all sides by private land, whereas the land offered by Van Etten was surrounded on all sides by land that already belonged to the Forest Service. The Van Etten parcel was also particularly desirable to the Forest Service because it is important wildlife habitat. Van Etten wanted to develop the Dark Canyon parcel; she planned to build sixteen luxury homes on it. On October 6, 1983, the Regional Forester issued an environmental assessment (EA) as required by Sec. 254.10 of the Forest Service regulations governing land exchanges, 36 C.F.R. Sec. 254.10(b), to ensure compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4331-4347. NEPA requires that an environmental impact statement (EIS) be done for all "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C) (1988). An agency prepares an EA to determine whether an EIS is required under this standard. The EA concluded that the exchange would have no significant impact on the environment and that therefore no EIS was required. However, the EA stated that approval of the exchange was "in concept only"; final approval was expressly conditioned on completion of studies of cultural and mineral resources with a finding that they would not be significantly affected.

When appraisals showed that Van Etten's land was worth less than the federal land, Van Etten offered an additional eighty-acre parcel in the same area to equalize the land values. On January 3, 1985, the Regional Forester approved the revised exchange proposal and issued a revised EA, again concluding that the exchange would have no significant impact on the environment and that no EIS need be done. During the next month, February, Lockhart and five other Dark Canyon landowners appealed the decision to the Forest Service pursuant to 36 C.F.R. Sec. 211.18. They complained that developing the land would adversely affect the air, water, and soil, would harm wildlife, including endangered and threatened species, and would interfere with Indian religious ceremonies. On June 7, 1985, the Chief of the Forest Service, Max Peterson, remanded the matter to the Regional Forester, saying that the Regional Forester's approval of the project was "procedurally deficient" because: (1) the proposed exchange of the second parcel of eighty acres had never been publicly advertised, as required by 36 C.F.R. Sec. 254.8; (2) the earlier approval had been contingent on studies of cultural and mineral resources that were never done; and (3) the revised EA did not discuss the environmental impact of Van Etten's planned use of the land. Chief Peterson also said that the EA ought to discuss the applicable state and county regulations and how they would affect the intended use of the property. On July 9, 1985, the Regional Forester issued a supplemental EA that included the missing studies and other supporting documentation, including the applicable zoning regulations.

In August 1985, Lockhart and two of the other original administrative appellants appealed again. On September 2, 1986, Chief Peterson again sent the case back to the Regional Forester for supplementation of the administrative record under 36 C.F.R. Sec. 211.18(q). ² The Chief said that because Van Etten's plans for developing the land had become more definite, the record should be supplemented to consider information about the environmental effect of those plans. In his letter ordering the remand, Chief Peterson said, "[W]e are concerned that the potential environmental consequences ... are not sufficiently discussed" in the EA, and he ordered the Regional Forester "to specifically address the direct effects of Van Etten's proposal on the soil, water, and air quality on and in the vicinity of the parcel, as well as its indirect effects on highway traffic, esthetics, and forest fire problems."

On November 4, 1986, the Regional Forester issued an environmental assessment update (EA update or final EA) with a geological study of the land attached. The EA update addressed the issues the Chief had specified, albeit not in great detail. On May 7, 1987, Dale Robertson, the new Chief of the Forestry Service, approved the exchange. When the Secretary of Agriculture declined to review that determination, the decision became final under 36 C.F.R Sec. 211.18(f)(6). The exchange could not take place, however, because Public Land Order 725 (PLO 725), issued June 4, 1951, had classified the land for public uses and made it illegal for the government to transfer it. An injunction issued in National Wildlife Fed'n v. Burford, 835 F.2d 305 (D.C.Cir.1987), prohibited the government from changing the classification. Therefore, the case was in procedural limbo for some time after the Chief's decision.

B. Court Proceedings

On August 4, 1987, Lockhart and two other Dark Canyon landowners who had appealed at the administrative level filed this action, alleging violations of NEPA, the Endangered Species Act (ESA), 16 U.S.C. Secs. 1531-1544, the Bald Eagle Protection Act, 16 U.S.C. Sec. 668, Sec. 106 of the National Historic Preservation Act, 16 U.S.C. Sec. 470f, the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. Sec. 1996, the Federal Land Exchange Acts, 16 U.S.C. Secs. 485, 486, 516, 521d, 555a; 42 U.S.C. Secs. 1715, 1716; 7 U.S.C. Sec. 1011, and the first and fifth amendments to the federal Constitution. The action sought declaratory and injunctive relief to prevent the Forest Service from proceeding with the exchange unless and until the cited statutes were complied with. The parties stipulated to a stay, however, because of PLO 725 and the injunction in Burford. Then, on November 4, 1988, the D.C. Circuit vacated the Burford injunction, and six months later PLO 725 was revoked with respect to the land in this suit. 54 Fed.Reg. 17,708 (1989) (codified at 43 C.F.R. PLO 6728). The revocation of PLO 725 became effective May 25, 1989; shortly thereafter, the government announced that it intended to go ahead with the exchange. On July 5, 1989, the district court granted a temporary restraining order (TRO) prohibiting the exchange, subject to posting of a $50,000 bond by plaintiffs. When the plaintiffs did not post the bond, the court lifted the TRO and allowed the exchange, subject to the requirement that Van Etten not cause "any physical change or destruction of the environment or property" until the case was over. The exchange occurred on July 7, 1989. ³ The district court granted the government's motion for summary judgment on September 18, 1989, holding that the agency's decision not to prepare an EIS was not arbitrary and capricious. Lockhart filed a notice of appeal on November 17, 1989. On appeal, she claims violations only of NEPA, AIRFA, and the first amendment. The other two federal plaintiffs did not appeal.

II. DISCUSSION

We review the district court's decision de novo. "[T]he appellate court must render an independent decision on the basis of the same administrative record as that before the district court; the identical standard of review is employed at both levels; and once appealed, the district court decision is accorded no particular deference." Brown v. United States Dep't of Interior, 679 F.2d 747, 748-49 (8th Cir.1982) (quotation omitted). Under Sec. 706(2)(A) of the Administrative Procedure Act, an informal determination by an agency must be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1988). An agency's decision not to prepare an EIS is reviewed under this standard. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, ...