Sierra Club v. Kimbell
| Decision Date | 20 January 2009 |
| Docket Number | Case No. 06-CV-3334 (PJS/RLE). |
| Citation | 595 F.Supp.2d 1021 |
| Parties | SIERRA CLUB, Friends of the Boundary Waters Wilderness, Defenders of Wildlife, and Minnesotans for Wilderness, Plaintiffs, v. Abigail R. KIMBELL, Chief of the United States Forest Service, and Ed Schafer, Secretary of Agriculture,<SMALL><SUP>1</SUP></SMALL> Defendants, Minnesota Forest Industries, Inc., Minnesota Timber Producers Association, All Terrain Vehicle Association of Minnesota, BlueRibbon Coalition, and Lake County, Intervenor Defendants. |
| Court | U.S. District Court — District of Minnesota |
Sanne H. Knudsen, Brian B. O'Neill, and Richard A. Duncan, Faegre & Benson, LLP; Sierra Weaver, Defenders of Wildlife, for plaintiffs.
Rachel A. Dougan and Ronald J. Tenpas, U.S. Department of Justice, Environment and Natural Resources Division; Gregory G. Brooker, United States Attorney's Office, for defendants.
Paul A. Turcke, Moore Smith Buxton & Turcke; Patrick D. Robben, Morrison Fenske & Sund, P.A., for intervenor defendants All Terrain Vehicle Association of Minnesota and BlueRibbon Coalition.
David R. Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., for intervenor defendants Minnesota Forest Industries, Inc., and Minnesota Timber Producers Association.
Ryan L. Woody, Matthiesen, Wicker & Lehrer, S.C.; Charles James Suk, Suk Law Firm Ltd., for amicus curiae the Ruffed Grouse Society.
Lori Swanson and David P. Iverson, Minnesota Attorney General's Office, for amicus curiae Mark Holsten, as Commissioner of the Minnesota Department of Natural Resources.
Plaintiffs (collectively, "the Sierra Club") brought this action to challenge decisions of the United States Forest Service regarding the management of the Superior National Forest. The Court has already dismissed Counts I and II of the Sierra Club's complaint, which raised challenges under the National Forest Management Act of 1976 ("NFMA"), Pub. L. 94-588, 90 Stat. 2949 (codified mainly at 16 U.S.C. §§ 1600-1614). Mem. Op. & Order, Nov. 15, 2007, 2007 WL 4050102 [Docket No. 107]. The two remaining claims, Counts III and IV of the complaint, allege that the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, in revising the forest plan for the Superior National Forest.2
The Sierra Club moves for summary judgment. The government cross-moves for summary judgment, as do intervenors representing the timber industry (collectively, "MTPA"). For the reasons that follow, the Court denies the Sierra Club's motion and grants the motions of the government and the MTPA.
The facts are essentially undisputed. The Superior National Forest is an area of over three million acres located in Northern Minnesota. The Boundary Waters Canoe Area Wilderness ("BWCAW") is located within the Superior National Forest and takes up about one-third of the forest's total area.
Congress established substantive directions for the management of national forests in NFMA. Congress established procedural rules for how federal agencies should assess the environmental impacts of certain activities in NEPA. National forests such as the Superior National Forest are managed by the United States Forest Service in accordance with forest plans that must comply with the substantive dictates of NFMA and the procedural dictates of NEPA. The BWCAW is subject to additional standards set forth in the Wilderness Act, Pub. L. 88-577, 78 Stat. 890 (1964) () and the Boundary Waters Canoe Area Wilderness Act, Pub. L. 95-495, 92 Stat. 1649 (1978) ( the Wilderness Act).
Under NFMA, creating a forest plan is only the first stage of a two-stage planning process for forest management. A forest plan is a "general planning tool" that "provides guidelines and approved methods by which forest management decisions are to be made...." Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.1994). A forest plan does not, however, authorize any particular site-specific activities. Id. Such site-specific activities, which are themselves subject to NFMA and NEPA, must be separately authorized at the second stage of forest planning. Id. This case does not involve any proposed site-specific activities.
The Forest Service adopted the first forest plans for the Superior National Forest and the nearby Chippewa National Forest in 1986. Forest plans are generally revised every ten to fifteen years, and in 1997, the Forest Service announced its intention to revise the forest plans and solicited public input. See 16 U.S.C. § 1604(f)(5)(A) (). Six years later, in 2003, the Forest Service issued a draft Environmental Impact Statement ("EIS") discussing the likely environmental effects of various proposed approaches to managing the two forests. Draft EIS, April 2003 (AR 18008).3 Members of the public, including some of the plaintiffs in this case, commented on the draft EIS.
After considering the comments, the Forest Service issued three related documents in July 2004: a final EIS ("FEIS") (AR 18028), a Record of Decision ("ROD") (AR 18032), and a revised forest plan (AR 18035 (Superior National Forest)).4 The FEIS identifies seven alternative approaches to managing the Chippewa and Superior National Forests and analyzes the likely impacts of each approach on the environment.5 The ROD identifies which of those seven alternative approaches the Forest Service ultimately chose to govern management of the Superior National Forest. And the forest plan describes in detail how the forest will be managed under the approach identified in the ROD. Although the Forest Service issued a single FEIS for the Chippewa and Superior National Forests, it issued separate RODs and adopted separate forest plans. The Sierra Club challenges only the FEIS with respect to the forest plan for the Superior National Forest.
In November 2004, in accordance with Forest Service regulations, the Sierra Club administratively appealed the Forest Service's adoption of the revised forest plan. Notice of Appeal, Nov. 26, 2004 (AR 18127).6 The Forest Service rejected the appeal (along with appeals filed by others) in August 2005. Appeal Decision, Aug. 8, 2005 (AR 18144).7 The Sierra Club filed this suit a year later.
Since filing suit, the Sierra Club has narrowed its challenge to two basic arguments. First, the Sierra Club contends that the FEIS for the forest plan does not adequately consider the effects on the BWCAW of managing the surrounding areas of the Superior National Forest in accordance with the different approaches discussed in the FEIS. Second, the Sierra Club contends that the FEIS is based on seriously flawed data about the roads and trails within the Superior National Forest. On this second point, the Sierra Club makes the subsidiary argument that the Forest Service inadequately disclosed its methodology with respect to the roadsand-trails data.
Because NEPA itself does not provide for judicial review, the Sierra Club's NEPA challenge arises, as a formal matter, under the Administrative Procedure Act ("APA"). See Cent. S.D. Coop. Grazing Dist. v. Sec'y of the USDA, 266 F.3d 889, 894 (8th Cir.2001). Under the APA, the Court will set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. . . ." 5 U.S.C. § 706(2)(A); see also Cent. S.D. Coop. Grazing Dist., 266 F.3d at 894. An agency's decision or action is arbitrary and capricious if
the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A court's inquiry into the facts surrounding the agency's action or decision must be "searching and careful," but "the ultimate standard of review is a narrow one." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The court may not substitute its judgment for that of the agency. Id. Further, when a dispute is primarily factual and "requires a high level of technical expertise," resolution of the dispute "is properly left to the informed discretion of the responsible federal agencies." Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976); see also Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir.1999).
As noted, NEPA (unlike NFMA) does not establish substantive rules about how national forests should be managed. Rather, NEPA's "mandate to the agencies is essentially procedural." Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). In particular, 42 U.S.C. § 4332 requires that when an agency proposes to take a "major Federal action[ ] significantly affecting the quality of the human environment," the agency must prepare a "detailed statement" on, among other things, the proposed action's environmental impact, alternatives to the action, and any unavoidable environmental harm that would result from the action. 42 U.S.C. § 4332(2)(C). Such a statement has come to be known as an EIS.
NEPA's requirement that an agency prepare an EIS before taking a major action affecting the environment ensures that information about the action's environmental impact will be both considered by the agency and made available to the...
To continue reading
Request your trial
-
SIERRA CLUB NORTH STAR CHAPTER v. LaHood
...be deprived of "any opportunity to consider the issue that the challenger later sought to raise in litigation." Sierra Club v. Kimbell, 595 F.Supp.2d 1021, 1031 (D.Minn.2009). In this case, the Court does not find waiver because all of the alternatives Sierra Club now puts forth were brough......
-
Minn. Ctr. for Envtl. Advocacy v. U.S. Forest Serv.
...No. 60] is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. 1. The Plan has been upheld as not in violation of NEPA. Sierra Club v. Kimbell, 595 F.Supp.2d 1021 (D.Minn.2009), aff'd,623 F.3d 549 (8th Cir.2010). 2. OHVs, also known as recreational motorized vehicles (RMVs), include all-terrain v......
-
Natural Res. Def. Council v. Pritzker
...information as a new rationalization either for sustaining or attacking the Agency's decision."); see also Sierra Club v. Kimbell, 595 F. Supp. 2d 1021, 1038 (D. Minn. 2009) ("it is not reasonable to expect the [agency] to revise its work yet again on the basis of data that became available......
-
Natural Res. Def. Council v. Pritzker
...information as a new rationalization either for sustaining or attacking the Agency's decision.”); see also Sierra Club v. Kimbell, 595 F.Supp.2d 1021, 1038 (D.Minn.2009) (“it is not reasonable to expect the [agency] to revise its work yet again on the basis of data that became available onl......