Sierra Club v. Kimbell, 09-1639.

• Citation: 623 F.3d 549
• Decision Date: 18 October 2010
• Docket Number: No. 09-1639.,09-1639.
• Parties: SIERRA CLUB; Friends of the Boundary Waters Wilderness; Defenders of Wildlife; Northeastern Minnesotans for Wilderness, Appellants, v. Abigail KIMBELL, Chief of the United States Forest Service; Tom Vilsack, Secretary of Agriculture, Appellees. Minnesota Forest Industries, Inc.; Minnesota Timber Producers Association; Lake County; All Terrain Vehicle Association of Minnesota; Blue Ribbon Coalition, Inc., Intervenor Defendants/Appellees, The Ruffed Grouse Society, Amicus on Behalf of Appellee, Mark Holsten, as Commissioner of The Minnesota Department of Natural Resources, Amicus on Behalf of Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

623 F.3d 549

SIERRA CLUB; Friends of the Boundary Waters Wilderness; Defenders of Wildlife; Northeastern Minnesotans for Wilderness, Appellants,

v. Abigail KIMBELL, Chief of the United States Forest Service; Tom Vilsack, Secretary of Agriculture, Appellees.Minnesota Forest Industries, Inc.; Minnesota Timber Producers Association; Lake County; All Terrain Vehicle Association of Minnesota; Blue Ribbon Coalition, Inc., Intervenor Defendants/Appellees,The Ruffed Grouse Society, Amicus on Behalf of Appellee,Mark Holsten, as Commissioner of The Minnesota Department of Natural Resources, Amicus on Behalf of Appellee.

No. 09-1639.

United States Court of Appeals,Eighth Circuit.

Submitted: Feb. 9, 2010.

Filed: Oct. 18, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Sanne Knudsen, argued, Brian B. O'Neill, Richard A. Duncan, on the brief, Minneapolis, MN, for appellants.

Ellen J. Durkee, U.S.D.O.J., argued, Brian M. Collins, David C. Shilton, U.S.D.O.J., on the brief, Washington, DC, for Federal Appellees.

David R. Oberstar, argued, Duluth, MN, for Appellees Minnesota Forest Industries, Inc. and Minnesota Timber Producers Assoc.

Paul A. Turcke, Boise, ID, Kathleen M. Ghreichi, Minnetonka, MN, on the brief, for Intervenor-Appellees ATVAM and BlueRibbon Coalition.

Ryan L. Woody, Hartford, WI, on the amicus brief of The Ruffed Grouse Society in support of appellees.

David P. Iverson, AAG, Nathan J. Hartshorn, AAG, St. Paul, MN, on the amicus brief of Mark Holsten as Commissioner of the Minnesota Department of Natural Resources on behalf of the appellees.

Before LOKEN, Chief Judge, ¹ COLLOTON and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

In July 2004, the United States Forest Service issued a Land and Resource Management Plan for the Superior National Forest (the “forest plan”). Sierra Club, Friends of the Boundary Waters Wilderness, and Northeastern Minnesotans for Wilderness (collectively, “Sierra Club”) sought judicial review of the forest plan in the district court. As relevant to this appeal, Sierra Club argued that the Forest Service's assessment of the forest plan's environmental impacts violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h. In particular, Sierra Club claimed that the Forest Service had failed to consider the plan's effects on the Boundary Waters Canoe Area Wilderness (“BWCAW”). The district court ² determined that the Forest Service had considered adequately the impacts on the nearby wilderness area in accordance with NEPA, and therefore granted the agency's motion for summary judgment. Sierra Club v. Kimbell, 595 F.Supp.2d 1021 (D.Minn.2009). Sierra Club appeals, and we affirm.

I.

The Superior National Forest was created by a proclamation of President Theodore Roosevelt in 1909 and expanded through a series of subsequent acquisitions. Today, the forest encompasses over three million acres in northeastern Minnesota along the United States-Canadian border near Lake Superior. Within the Superior National Forest lies a 1.1 million acre wilderness area known as the BWCAW. The BWCAW is one of the nation's most popular wilderness areas, attracting nearly 300,000 visitors annually to its many lakes and pristine forested landscapes.

Federal efforts to protect the BWCAW date back to at least 1926, when 1000 square miles within the Superior National Forest were set aside as a canoe recreation area. The Wilderness Act of 1964 expanded the protected area and officially designated the BWCAW as wilderness, thereby restricting authorized uses of the area to preserve its wilderness character. See 16 U.S.C. § 1133(b). In 1978, the Boundary Waters Canoe Area Wilderness Act, Pub.L. No. 95-495, 92 Stat. 1649 (1978), gave the area its current name, set aside additional acreage as wilderness, and further restricted authorized uses. Id. §§ 3, 4. The BWCAW Act ended all logging within the wilderness and established stricter limitations on motorized recreational use. Id. §§ 4(c), (e), (f), 6(a).

The Superior National Forest, which includes the entire BWCAW, is part of the National Forest System, and is subject to the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600-1687. As relevant to this appeal, NFMA directs the Secretary of Agriculture to “develop, maintain, and, as appropriate, revise [forest plans] for units of the National Forest System.” Id. § 1604(a). A forest plan is a “general planning tool” that establishes the “overall management direction for the forest unit for ten to fifteen years,” and serves as “a programmatic statement of intent” to guide “future site-specific decisions.” Sierra Club v. Robertson, 28 F.3d 753, 755, 758 (8th Cir.1994). In developing a forest plan, the Forest Service, which manages the Forest System, must comply with the Multiple Use-Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531. This Act requires the Forest Service to account for both environmental and economic considerations in the plan, see 16 U.S.C. § 1604(g), including “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” Id. § 1604(e)(1).

The Forest Service also must develop a forest plan in compliance with the procedural requirements of NEPA. Under NEPA, if an agency proposes to undertake a “major Federal action[ ] significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C), the agency must prepare an environmental impact statement (“EIS”). The Forest Service has therefore promulgated regulations requiring the preparation of a draft and final EIS in conjunction with a proposed forest plan. See 36 C.F.R. § 219.10(b) (2000). ³ The Forest Service must consider in the EIS a broad range of reasonable alternatives to help identify the alternative that best maximizes “net public benefits.” Id. § 219.12(f). The agency also must evaluate the “physical, biological, economic, and social effects” of those alternatives in compliance with NEPA procedures. Id. § 219.12(g), (h).

The development and implementation of a forest plan generally “involves a two-stage process.” Robertson, 28 F.3d at 755. Initially, the Forest Service creates a proposed forest plan and accompanying draft and final EIS to evaluate alternative management scenarios. See 36 C.F.R. § 219.10(b). After receiving public input, the Regional Forester either approves or disapproves the proposed plan. Id. § 219.10(b), (c). If the forest plan is approved, the Forest Service issues a record of decision to document the rationale for the management approach adopted in the plan. Id. § 219.10(c)(1). The process then moves to a second stage in which the forest plan is implemented and “individual site-specific projects are proposed and assessed.” Robertson, 28 F.3d at 755. An approved forest plan, for example, might establish logging goals for the forest as a whole, but before the Forest Service can permit a specific logging project, the agency must, among other things, ensure that the project conforms with the forest plan, see 36 C.F.R. § 219.10(e), and conduct site-specific environmental analysis pursuant to NEPA. See 40 C.F.R. §§ 1502.14, 1508.9(b); see also Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 729-30, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).

This case focuses on a dispute involving the first stage of the forest planning process for the Superior National Forest. Pursuant to NFMA's requirement that a forest plan be revised “at least every fifteen years,” see 16 U.S.C. § 1604(f)(5)(A), the Forest Service announced in 1997 its intention to revise the plan for the Superior National Forest that had been in effect since 1986. After a period of study and analysis, the Forest Service issued a draft EIS in 2003. The draft EIS discussed and compared the anticipated environmental impacts of several proposed approaches to forest management. The Forest Service considered public comments to the draft EIS, and, in July 2004, issued a final EIS (“FEIS”), a record of decision (“ROD”), and the revised forest plan.

The FEIS identifies seven alternative approaches for managing the Superior National Forest. These approaches, labeled A through G, differ in the amount and location of human activity (including logging and recreation) that they allow, and in their goals for plant and animal life in the forest. Alternative B, for example, would reduce timber harvesting from current levels, restore old growth forest, designate new wilderness study areas adjacent to the BWCAW, and decrease the number of new ATV and snowmobile trails. FEIS § 2-14. Similarly, Alternative D emphasizes non-motorized recreational activities, such as hiking and canoeing, along with the restoration of old growth forest through a reduction in logging. FEIS § 2-19. Alternative C, by contrast, allows an increase in timber production relative to the 1986 plan. FEIS § 2-17. Alternative E falls between these options with respect to timber, emphasizing more harvesting than Alternatives B and D, but less than Alternative C. FEIS § 2-22. Alternative E also permits the greatest number of new snowmobile and ATV trails, and designates no new wilderness study areas. FEIS § 2-24.

A common feature of each alternative is a commitment to continue to manage the BWCAW in accordance with the Boundary Waters Canoe Area Plan. The Forest Service adopted this plan in 1993 along with an EIS specific to the wilderness area. The 2004 forest plan and accompanying FEIS, therefore, anticipate changes to the management approach only for those areas of the Superior National Forest outside of the Boundary Waters. Another common point among the alternatives is their use of geographic “analysis areas” that extend in and out of the Boundary Waters. For example, the FEIS frequently employs the Northern Superior Uplands as the area in which environmental impacts are measured. FEIS § 3.1-24. This vast area, which includes the BWCAW, is preferred because “[m]any ecosystem processes essential for sustainability ......