Sierra Club v. U.S. Dept. of Agr., 96-2244

• Decision Date: 28 May 1997
• Docket Number: No. 96-2244,96-2244
• Citation: 116 F.3d 1482
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. THE SIERRA CLUB and The Regional Association of Concerned Environmentalists, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Michael Espy, United States Forest Service, Jack Ward Thomas, Floyd Marita, and Louise Odegaard, Defendants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1482

116 F.3d 1482

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

THE SIERRA CLUB and The Regional Association of Concerned

Environmentalists, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Michael Espy,

United States Forest Service, Jack Ward Thomas,

Floyd Marita, and Louise Odegaard, Defendants.

No. 96-2244.

United States Court of Appeals, Seventh Circuit.

May 28, 1997.

ORDER

The defendants filed this appeal from the District Court's grant of summary judgment for the plaintiffs on four of the nine counts in their complaint. After reviewing the decision of the District Court,the parties' appellate briefs, and the administrative record, we havedetermined that the District Court properly identified and resolved theissues before us on appeal. We therefore affirm the judgment andinjunction issued by the District Court for the reasons stated in thetwo attached memorandum opinions.

MEMORANDUM AND ORDER

Filed Sept. 25, 1995.

GILBERT, Chief Judge:

Pending before the Court are cross-motions for summary judgment [Documents 19, 25] as well as a supplemental memorandum filed by plaintiff-intervenor Audubon Council. The plaintiffs have sought judicial review of an agency decision pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706 (1988), raising issues under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370d (1988), the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604 (1988), the Multiple Use Sustained Yield Act ("MUSYA"), 16 U.S.C. §§ 528-531 (1988), and the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703-712 (1988). Therefore, the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 (1988).

As a preliminary matter, the Court notes that the plaintiffs have filed a motion to strike [Document 37] the defendants' reply brief. The Court agrees that the defendants were in error to file the brief without prior court authorization. However, in the interest of full discussion of the issues and in light of the fact that the plaintiffs have responded to this brief in their own reply brief, the Court DENIES the motion to strike. ¹

I. BACKGROUND

The plaintiffs filed this action to challenge two records of decision issued in 1992 by the United States Forest Service. One of these decisions relates to the agency's adoption of an Amended Land and Resource Management Plan ("ALRMP") for the Shawnee National Forest. (Record of Decision, Amended Land and Resource Management Plan (hereinafter "ROD for ALRMP").) The other relates to the agency's decision to allow oil and gas leasing within the Shawnee. (Record of Decision, Oil and Gas Leasing (hereinafter "ROD for Oil and Gas Leasing").)

The ALRMP was created as a result of objections to the original Land and Resource Management Plan that was approved for the Shawnee in 1986. In an attempt to resolve administrative appeals that had been filed against the 1986 plan, the Forest Service entered into a settlement agreement with the organizations that had filed the appeals, which included the Sierra Club and the Audubon Council. ² The document lists "the points of agreement that were reached" among the participants regarding various issues that had been appealed. (Appeal Settlement Agreement at 1.) Of particular note for purposes of this case are the sections concerning all-terrain vehicle ("ATV") use of the forest, management of habitat for forest interior species, and identification of areas recommended for wilderness study. The agreement further provided that:

[a]mendments and changes to the Forest Plan or changes in its implementation, where called for by the agreements in this document, will be carried out through the proper procedures in accordance with the requirements of the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA), and other appropriate laws and regulations.

(Settlement Agreement at 2.)

Pursuant to the agreement, the environmental groups agreed to withdraw their appeals and to not initiate any further appeals or judicial review of the 1986 plan. (Settlement Agreement at 25.) They reserved their right to initiate and pursue appeals or judicial review of any future plan actions except with respect to the "specific claims raised in the appeal of the [1986 plan]." (Settlement Agreement at 25.) If any group pursued an appeal or judicial review realleging claims raised in the 1986 appeal, such action would void the settlement agreement as to that particular party. (Settlement Agreement at 25.) The agreement further stated that if the Forest Service failed to amend the Forest Plan as provided in the agreement, "that portion of the Agreement not enacted as provided herein shall be null and void and all obligations under it discharged, and all rights of any party to appeal or seek judicial review ... remain as they were on the effective date of this Agreement." (Settlement Agreement at 26.)

During the same time frame, the Forest Service began considering whether to amend the 1986 plan to adopt provisions for oil and gas leasing. These discussions were prompted by the Federal Onshore Oil and Gas Leasing Reform Act of 1987 and its implementing regulations, in which the Secretary of Interior requested that suitable National Forest System Lands be identified and offered for lease. The 1986 Shawnee Forest Plan had "already identified most lands as suitable for oil and gas exploration and development[ ]" but further environmental analysis was needed before authorizing the Bureau of Land Management to offer such land for lease. (ROD for Oil and Gas Leasing at 1.) "Because we had already begun the analysis for amending the Forest Plan as required in the Settlement Agreement, it was appropriate to expand the analysis to include oil and gas leasing." (ROD for Oil and Gas Leasing at 1.)

Regional Forester Floyd J. Marita signed the records of decision for both the ALRMP and the Oil and Gas Leasing program on March 23, 1992. The Chief of the Forest Service ultimately affirmed the ALRMP in a decision released on June 25, 1993. That decision became the agency's final administrative determination on July 23, 1993, when the Secretary of Agriculture declined to conduct a discretionary review pursuant to 36 C.F.R. §§ 217.7(e), 217.17 (1992). The oil and gas leasing decision was similarly affirmed on July 14, 1993, and became final when the Secretary of Agriculture declined discretionary review on July 30, 1993.

The Sierra Club and the Regional Association of Concerned Environmentalists ("RACE") filed the pending complaint on April 14, 1994, seeking judicial review of both the ALRMP and the oil and gas leasing decision. The Audubon Council's motion to intervene as a plaintiff was granted on April 10, 1995. The complaint alleges that both decisions violate NEPA, 42 U.S.C. §§ 4321-4370d (1988), NFMA, 16 U.S.C. § 1604 (1988), MUSYA, 16 U.S.C. §§ 528-531, and the MBTA, 16 U.S.C. §§ 703-712 (1988).

II. ANALYSIS

Because this case involves judicial review of an agency's decision, the Court's resolution of this case is subject to a narrow standard. Under the APA, "[a]gency actions may be overturned only if they are--(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; ... [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right...." 5 U.S.C. § 706(2) (1988); Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir.1995). To determine whether agency action is arbitrary or capricious, the Court must consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). As the Seventh Circuit stated in Sierra Club:

"Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." ... [However,] deference does not mean obeisance. Deference will not "shield [an agency] action from a thorough, probing, in-depth review." ... Where an "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," the agency has violated the standards of the APA.

46 F.3d at 619 (citations omitted).

To the extent that the plaintiffs seek judicial review of the agency's compliance with NEPA, the court's only role "is to insure that the agency has taken a 'hard look' at environmental consequences...." Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976). NEPA does not impose any substantive requirements, i.e., it "does not command the agency to favor an environmentally preferable course of action...." Sierra Club v. Espy, 38 F.3d 792, 802 (5th Cir.1994). Rather, it "simply prescribes the necessary process[ ]" that the agency must follow in its decisionmaking. Sierra Club v. Marita, 46 F.3d at 623. In short, "NEPA merely prohibits uninformed--rather than unwise--agency action." Sierra Club v. Espy, 38 F.3d at 802.

The plaintiffs' complaint contains nine counts which allege that the ALRMP and the oil and gas leasing decisions violate various provisions of NFMA, MUSYA, NEPA, and the MBTA. The Court will address each count in turn. However, to put the plaintiffs' arguments into their proper perspective, a brief historical overview of the development of the national forests and the statutory framework is in order.

Congress provided for the creation of national forests through the Creative Act of 1891, which...