Sierra Club v. Marita

• Citation: 46 F.3d 606
• Decision Date: 05 April 1995
• Docket Number: 94-1827,Nos. 94-1736,s. 94-1736
• Parties: , 63 USLW 2497, 25 Envtl. L. Rep. 20,514 SIERRA CLUB, Wisconsin Forest Conservation Task Force and Wisconsin Audubon Council, Incorporated, Plaintiffs-Appellants, v. Floyd J. MARITA, as Regional Forester of the Eastern Region of the Forest Service, United States Department of Agriculture, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 606

46 F.3d 606

40 ERC 1065, 63 USLW 2497, 25 Envtl.

L. Rep. 20,514

SIERRA CLUB, Wisconsin Forest Conservation Task Force and Wisconsin Audubon Council, Incorporated Plaintiffs-Appellants, v. Floyd J. MARITA, as Regional Forester of the Eastern Region of the Forest Service, United States Department of Agriculture, et al., Defendants-Appellees.

Nos. 94-1736, 94-1827.

United States Court of Appeals Seventh Circuit.

Argued Oct. 7, 1994.

Decided Jan. 20, 1995.

Rehearing Denied April 5, 1995.

Bonnie A. Wendorff, Walter Kuhlmann (argued), Boardman, Suhr, Curry & Field, Madison, WI, for plaintiffs-appellants.

Katherine W. Hazard (argued), Albert M. Ferlo, Dept. of Justice, Land & Natural Resources Div., Washington, DC, for defendants-appellees in No. 94-1736.

Nathaniel S.W. Lawrence, San Francisco, CA, for amici curiae Society for Conservation Biology, American Institute of Biological Sciences.

Scott W. Hansen, R. Timothy Muth, Reinhart, Boerner, Vandeuren, Norris & Rieselbach, Milwaukee, WI, for amicus curiae Lake States Resource Alliance, Inc.

Mel S. Johnson, Asst. U.S. Atty., Milwaukee, WI, Elizabeth A. Peterson (argued), Dept. of Justice, Land & Natural Resources Div., Wells Burgess, Jonathan Wiener, Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for defendants-appellees in No. 94-1827.

Before CUMMINGS, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiffs Sierra Club, Wisconsin Forest Conservation Task Force, and Wisconsin Audubon Council, Inc. (collectively, "Sierra Club") brought suit against defendant United States Forest Service ("Service") seeking to enjoin timber harvesting, road construction or reconstruction, and the creation of wildlife openings at two national forests in northern Wisconsin. The Sierra Club claimed that the Service violated a number of environmental statutes and regulations in developing forest management plans for the two national forests by failing to consider properly certain ecological principles of biological diversity. The district court determined that the plaintiffs' claims were justiciable but then granted the Service summary judgment on the merits of those claims. We affirm.

I.

The National Forest Management Act ("NFMA") requires the Secretary of Agriculture, who is responsible for the Forest Service, to develop "land and resource management plans" to guide the maintenance and use of resources within national forests. 16 U.S.C. Secs. 1601-1604. In developing these plans the Secretary must determine the environmental impact these plans will have and discuss alternative plans, pursuant to the National Environmental Policy Act ("NEPA") 42 U.S.C. Sec. 4321 et seq. The Secretary must also consider the "multiple use and sustained yield of the several products and services obtained" from the forests, pursuant to the Multiple-Use Sustained Yield Act ("MUSYA"), 16 U.S.C. Secs. 528-531.

The process for developing plans is quite elaborate. The Service must develop its management plans in conjunction with coordinated planning by a specially-designated interdisciplinary team, extensive public participation and comment, and related efforts of other federal agencies, state and local governments, and Indian tribes. 36 C.F.R. Secs. 219.4-219.7. Directors at all levels of the Service participate in the planning process for a given national forest. The Forest Supervisor, who is responsible for one particular forest, initially appoints and then supervises the interdisciplinary team in order to help develop a plan and coordinate public participation. The Supervisor and team then develop a draft plan and draft environmental impact statement ("EIS"), which is presented to the public for comment. 36 C.F.R. Secs. 219.10(a), 219.10(b). After a period of comment and revision, a final plan and final EIS are sent to the Regional Forester, who directs one of four national forest regions, for review. If the Regional Forester approves them, she issues both along with a Record of Decision ("ROD") explaining her reasoning. 36 C.F.R. Sec. 219.10(c). An approved plan and final EIS may be appealed to the Forest Service Chief ("Chief") as a final administrative decision. 36 C.F.R. Secs. 219.10(d), 211.18.

The final plan is a large document, complete with glossary and appendices, dividing a forest into "management areas" and stipulating how resources in each of these areas will be administered. The plans are ordinarily to be revised on a ten-year cycle, or at least once every fifteen years. 36 C.F.R. Sec. 219.10(g).

The present case concerns management plans developed for two forests: Nicolet National Forest ("Nicolet") and Chequamegon (She-WA-me-gon) National Forest ("Chequamegon"). Nicolet spreads over 973,000 acres, of which 655,000 acres are National Forest Land, in northeastern Wisconsin, while Chequamegon encompasses 845,000 publicly-owned acres in northwestern and north-central Wisconsin. ¹ Collectively, the Nicolet and the Chequamegon contain hundreds of lakes and streams, thousands of miles of roads and trails, and serve a wide variety of uses, including hiking, skiing, snowmobiling, logging, fishing, hunting, sightseeing, and scientific research. The forests are important for both the tourism and the forest product industries in northern Wisconsin.

In the late 1970s and early 1980s, the Nicolet and Chequamegon Forest Supervisors and interdisciplinary teams each began drafting a forest management plan for their respective forests. These plans were expected to guide forest management for ten to fifteen years beginning in 1986. Drafts of the Nicolet plan and an EIS comparing the proposed plan to several alternatives were issued on November 9, 1984, while similar drafts of the Chequamegon plan were issued on March 29, 1985. Both plans were followed by a period of public comment, pursuant to 16 U.S.C. Sec. 1604(d), which resulted in a number of changes to both plans.

The Regional Forester issued final drafts of both plans on August 11, 1986, as well as final environmental impact statements ("FEIS") and RODs explaining the final planning decisions. Various citizens' groups, including the Sierra Club, challenged the plans in administrative appeals. Chief F. Dale Robertson affirmed in part and remanded in part the Nicolet plan on February 22, 1988, and affirmed in part and remanded in part the Chequamegon plan on January 31, 1990. ²

The Sierra Club brought an action against the Service in the district court on April 2, 1990, over the Nicolet plan and on October 10, 1990, over the Chequamegon plan. Suing under the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 701-06, ³ the Sierra Club argued in both cases that the Service had acted arbitrarily or capriciously in developing these forest management plans and FEISs. The Sierra Club requested both declaratory and injunctive relief. The Service, in turn, replied that the Sierra Club lacked standing to challenge the forest plans or FEISs. Both sides moved for summary judgment.

The Sierra Club's primary contention concerned the Service's failure to employ the science of conservation biology, which failure led it to violate a number of statutes and regulations regarding diversity in national forests. Conservation biology, the Sierra Club asserted, predicts that biological diversity can only be maintained if a given habitat is sufficiently large so that populations within that habitat will remain viable in the event of disturbances. Accordingly, dividing up large tracts of forest into a patchwork of different habitats, as the Nicolet and Chequamegon plans did, would not sustain the diversity within these patches unless each patch were sufficiently large so as to extend across an entire landscape or regional ecosystem. See, generally, Reed F. Noss, Some Principles of Conservation Biology, As They Apply to Environmental Law, 69 Chi.-Kent L.Rev. 893 (1994). Hence, the Sierra Club reasoned, the Service did not fulfil its mandates under the NFMA, NEPA and MUYSA to consider and promote biological diversity within the Nicolet and the Chequamegon.

On February 9, 1994, the district court denied the Sierra Club's motion for summary judgment and granted the Service's with regard to the Nicolet. The court held that the Sierra Club had standing to challenge the forest management plan without attacking any specific action under the plan and that the plan was ripe for judicial review. The court then found for the Service on the merits, holding that because of the uncertain nature of application of many theories of conservation biology, the Service had not erred in failing to apply it and so had not violated the NFMA, NEPA, or MUSYA. Sierra Club v. Marita, 843 F.Supp. 1526 (E.D.Wis.1994) ("Nicolet "). The court issued a similar opinion with regard to the Chequamegon plan on March 7, 1994. Sierra Club v. Marita, 845 F.Supp. 1317 (E.D.Wis.1994) ("Chequamegon "). This consolidated appeal of the two cases followed.

II.

At the threshold we must determine whether the Sierra Club has presented a justiciable claim. The Sierra Club has challenged forest management plans rather than specific Service actions that more directly affect a forest, and these broad challenges raise questions of both standing and ripeness. Although the doctrines of standing and ripeness ostensibly require different inquiries, they "are closely related, and in cases like this one perhaps overlap entirely." Smith v. Wisconsin Dept. of Agriculture, 23 F.3d 1134, 1141 (7th Cir.1994); see also Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 2205 n. 10, 45 L.Ed.2d 343 (1975) ("The standing question thus bears close affinity to questions of ripeness--whether the harm asserted has matured sufficiently to warrant judicial intervention...."); Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U.Chi.L.Rev. 153, 155, 172-73 (1987) (noting that "the ripeness requirement is often indistinguishable from actionability analysis" and that no "line...