Rhodes v. Johnson

Citation153 F.3d 785
Decision Date27 August 1998
Docket NumberNo. 97-3687,97-3687
Parties29 Envtl. L. Rep. 20,092 Craig RHODES, Charlene Brown, Mark Donham, et al., Plaintiffs-Appellants, v. James JOHNSON, District Ranger, Vienna District, Shawnee National Forest, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Thomas C. Buchele, Steven M. Siros (argued), Karen C. Bruntrager, Jenner & Block, Chicago, IL, for Plaintiffs-Appellants.

Andrew C. Mergen (argued), Department of Justice, Land & Natural Resources Division, Washington, DC, William E. Coonan, Office of the United States Attorney, Civil Division, Fairview Heights, IL, for Defendant-Appellee.

Before MANION, KANNE, and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.

The defendant is the U.S. Forest Service's District Ranger for the Vienna District of the Shawnee National Forest in southern Illinois. The plaintiffs are five neighbors of the Burke Branch Research Natural Area--part of the Shawnee National Forest--who use Burke Branch for such activities as hiking and nature photography. They seek declaratory and injunctive relief against the defendant, challenging his authority to burn one area of Burke Branch and remove shrubs from another without conducting an "environmental assessment," which the plaintiffs argue is required by the Forest Service's procedures implementing the National Environmental Policy Act (NEPA), 42 U.S.C. § 4231 et seq., and the Council on Environmental Quality (CEQ)'s regulations. Although the controlled burn and shrub removal are "categorical exclusions" under the Forest Service's implementing procedures, and so would not generally be subject to an environmental assessment, the plaintiffs argue that the mere presence of at least two "extraordinary circumstances" removes the proposed actions from the categorical exclusions. 1 The defendant argues that under the Forest Service's interpretation of its procedures an environmental assessment is not necessary if, after an internal review, the Forest Service determines that the presence of the extraordinary circumstances would not have a significant impact on the environment. The district court accepted the Forest Service's interpretation and so granted summary judgment for the defendant. Because the Forest Service's

interpretation contradicts the plain language of its implementing procedures, we reverse.

I. Background

The Shawnee National Forest covers much of the southern tip of Illinois. Within this large area is the 206-acre Burke Branch Research Natural Area. In 1989, after the Forest Service prepared a Management Plan for Burke Branch, it prepared an environmental assessment of that Plan's impact. (An environmental assessment is one of the studies that an agency may conduct to fulfill its obligations under NEPA and the CEQ's regulations.) As required by regulation, the 1989 environmental assessment was subject to public review and comment. This environmental assessment led the Forest Service to issue a "finding of no significant impact," meaning no further study or documentation was necessary. As part of the Management Plan, the Forest Service conducted controlled burns in Burke Branch in 1990 and 1992.

This 1989 environmental assessment was applicable for five years, but after it expired in 1993, the Forest Service did not conduct a new one. Rather, on August 13, 1996, the Forest Service issued an "environmental analysis," in which it concluded that burns and shrub removal in Burke Branch would not significantly impact the environment. Like the 1989 environmental assessment, the environmental analysis purported to be valid for five years, but unlike an environmental assessment, this analysis was essentially an internal study, not subject to public review. On August 16, 1996, the defendant issued a decision memo recommending controlled burns in a 17-acre area within Burke Branch and removing trees, shrubs, and other selected woody plants from another 10 acres.

On September 18, 1996, the plaintiffs filed this suit, seeking declaratory and injunctive relief against the defendant acting on his decision memo. After the district court denied the plaintiffs' motion for preliminary injunction, both parties filed motions for summary judgment, and on August 28, 1997, the district court denied the plaintiffs' motion and granted the defendant's. The plaintiffs then appealed. Although the defendant has conducted some controlled burns, this case is not moot because the defendant still plans to conduct shrub removals and intends to conduct future controlled burns in accord with the environmental analysis.

II. Analysis

We first address an issue not raised by the parties: whether the plaintiffs have standing under Article III of the U.S. Constitution to bring this suit. Even where the parties agree that the plaintiffs have constitutional standing, we have to satisfy ourselves that this jurisdictional requirement is met. See, e.g., Riordan v. Commonwealth Edison Co., 128 F.3d 549, 551 (7th Cir.1997); Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th Cir.1997). In their jurisdictional statement, the plaintiffs assert federal question jurisdiction because the defendant's decision was unlawful in that in reaching it he failed to follow the required procedures. But Lujan v. Defenders of Wildlife, 504 U.S. 555, 571-72, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), foreclosed standing based on some sort of "procedural injury," so this assertion can be no help to the plaintiffs. Reviewing the record in this case, however, we are satisfied that the plaintiffs do have standing because they allege that they use Burke Branch, that the defendant's decision will diminish this use and enjoyment, and that the defendant's failure to permit them to participate in the public review of the decision is causally connected to their harm. This is enough to show Article III standing. See Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130 (citing Sierra Club). In the future, we hope that litigants will be mindful of our obligation to satisfy ourselves of our jurisdiction and when, in cases like this, standing is an obvious issue, they will cite to the relevant parts of the record to avoid wasting judicial time and resources. We now turn to the merits of this appeal.

NEPA established a national policy of protecting the environment as a way of promoting human health. 42 U.S.C. § 4321. NEPA also created CEQ, which promulgates regulations related to NEPA that are binding on Federal agencies. 42 U.S.C. § 4342. One of those regulations requires all Federal [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....

agencies to adopt procedures implementing CEQ's regulations and provides that

40 C.F.R. § 1507.3. In accord with this regulation, the Forest Service, which is a subunit of the U.S. Department of Agriculture, adopted implementing procedures in its Environmental Policy and Procedures Handbook, FSH 1909.15, which we will refer to as the Environmental Handbook.

The Department of Agriculture adopted environmental regulations to fulfill its NEPA obligations, see 7 C.F.R. § 3100.41(e), and the Forest Service's Environmental Handbook is meant to be a layer of agency rules one level below these. See Environmental Handbook, section 01.3. Both parties and the district court treated the Forest Service's Environmental Handbook as agency regulations and the Forest Service's interpretation of the Environmental Handbook's provisions as an agency interpreting its own regulations. This appears to be correct because--as required by 40 C.F.R. § 1507.3--the Environmental Handbook was published in the Federal Register, see 57 Fed.Reg. 43,180 (Sept. 18, 1992), and was subject to public comment and review. See Western Radio Services Co. v. Espy, 79 F.3d 896, 901 (9th Cir.1996) (holding that a different Forest Service Handbook was not binding law because it had not been issued as a regulation in the C.F.R. or been published in the Federal Register). But see Southwest Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir.1996) (stating court's belief that because Forest Service's Environmental Handbook had not been published in the Federal Register, it did not have the independent force and effect of law).

NEPA requires that all agencies make a report on the "environmental impact of the proposed action" whenever the agency proposes action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). CEQ's regulations refer to this report as an "environmental impact statement," 40 C.F.R. § 1508.11, and direct 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). If a proposed action is neither one normally requiring an environmental impact statement nor one normally a categorical exclusion, the agency must prepare an "environmental assessment," 40 C.F.R. § 1501.4(b), which is "a rough-cut, low-budget...

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