Utah Environmental Cong. v. Dale Bosworth, No. 05-4102.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Tymkovich
• Citation: 443 F.3d 732
• Parties: UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. DALE BOSWORTH, in his official capacity as Chief of the United States Forest Service; United States Forest Service; Mary Erickson, in her official capacity as Supervisor of the Fishlake National Forest; and D. Fred Houston, in his official capacity as Richfield District Ranger of the Fishlake National Forest, Defendants-Appellees.
• Docket Number: No. 05-4102.
• Decision Date: 06 April 2006

443 F.3d 732 UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant,
v.
DALE BOSWORTH, in his official capacity as Chief of the United States Forest Service; United States Forest Service; Mary Erickson, in her official capacity as Supervisor of the Fishlake National Forest; and D. Fred Houston, in his official capacity as Richfield District Ranger of the Fishlake National Forest, Defendants-Appellees. No. 05-4102. United States Court of Appeals, Tenth Circuit. April 6, 2006.

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Joel Ban, WildLaw, Salt Lake City, UT, for Plaintiff-Appellant.

Mark R. Hagg, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Kelly A. Johnson, Acting Assistant Attorney General, and Todd S. Aagaard, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C., and Elise Foster, Of Counsel, United States Department of Agriculture, Ogden, UT, with him on the brief), for Defendants-Appellees.

Before HENRY, EBEL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

In 2004, the United States Forest Service approved a 123-acre timber-thinning project to treat beetle-infested trees in Utah's Fishlake National Forest. Its approval was made pursuant to a categorical exclusion, a streamlined process allowing minor projects to be quickly implemented so long as they have no significant effect on the environment. As a result of this decision, Utah Environmental Congress ("UEC") appealed to the district court arguing that the project violated a number of environmental and regulatory provisions. We agree with the district court that the Forest Service properly implemented this project under a categorical exclusion.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Background

A. Statutory and Regulatory Framework

1. National Environmental Policy Act

The National Environmental Policy Act ("NEPA") requires federal agencies such

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as the Forest Service to analyze environmental consequences before initiating actions that potentially affect the environment.¹ In conducting this analysis, the Forest Service must prepare one of the following: (1) an environmental impact statement, (2) an environmental assessment, or (3) a categorical exclusion. An environmental impact statement involves the most rigorous analysis, and is required if a proposed action will "significantly affect[ ] the quality of the human environment." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4.

If an agency is uncertain whether the proposed action will significantly affect the environment, it may prepare a considerably less detailed environmental assessment. 40 C.F.R. § 1508.9. An environmental assessment provides "sufficient evidence and analysis" to determine whether a proposed project will create a significant effect on the environment. Id. If so, the agency must then develop an environmental impact statement; if not, the environmental assessment results in a "Finding of No Significant Impact," and no further agency action is required. Id.

In certain narrow instances, however, an agency is not required to prepare either an environmental assessment or an environmental impact statement. This occurs when the proposed action falls within a categorical exclusion, i.e., those actions predetermined not to "individually or cumulatively have a significant effect on the human environment." Id. § 1508.4. The Forest Service has created a list of 24 such categories.² See Forest Service Handbook 1909.15 (Environmental Policy and Procedures Handbook), Ch. 30, §§ 31.12, 31.2, http://www.fs.fed.us/cgi-bin/Directives/get — dirs/fsh?1909.15 (last visited March 24, 2006) [hereinafter Forest Service Handbook]. Examples include small acreage timber-thinning and harvesting, as well as the construction of trails, utility lines, and meteorological sampling sites. See id.

Federal law limits categorical exclusions in one critical respect: a proposed action is precluded from categorical exclusion if "extraordinary circumstances" exist such that "a normally excluded action may have a significant environmental effect." 40 C.F.R. § 1508.4. Extraordinary circumstances may exist, for example, where a proposed action — albeit small in scope — significantly affects inventoried roadless areas, archaeological sites, flood plains, or federally listed threatened or endangered species habitat. Forest Service Handbook, Ch. 30, § 30.3.

2. National Forest Management Act

Under the National Forest Management Act of 1976 ("NFMA"), the Forest Service must develop a land and resource management plan, commonly known as a forest plan, for each unit of the National Forest System. 16 U.S.C. § 1604(a), (e), (g)(3)(B). The Forest Service manages each forest unit at two different levels: (1) programmatic and (2) project. Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1167-68 (10th Cir.1999).

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At the programmatic level, the Forest Service creates general, forest-wide planning goals memorialized in a forest plan. Because the Forest Service must account for a variety of different interests, each forest plan envisions the forest will be used for multiple purposes, including "out-door recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). At the same time, the forest plan provides for "diversity of plant and animal communities based on the suitability and capability of the specific land area." Id. § 1604(g)(3)(B).

At the project or site-specific level, the Forest Service implements the forest plan by approving or disapproving particular projects using an environmental impact statement, an environmental assessment, or a categorical exclusion. Projects must comply with the applicable forest plan. Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir.2006); see 16 U.S.C. § 1604(i).

3. Implementing Regulations

Before a forest plan may be created, NFMA "explicitly requires the Secretary of Agriculture to issue regulations that set out the process for the development and revision of land management plans for units of the National Forest System, and regulations that establish management planning standards and guidelines...." 47 Fed.Reg. 43,026, 43,037 (Sept. 30, 1982). Of particular concern in this case are planning rules the Forest Service adopted in 1979 and revised in 1982, codified at 36 C.F.R. § 219 (1982), which govern Forest Service management at both the programmatic and project levels. See generally id. In November 2000, the Forest Service substantially amended these regulations, known as the 1982 planning rules, replacing them with the 2000 planning rules, codified at 36 C.F.R. § 219 (2001). 65 Fed.Reg. 67,568 (Nov. 9, 2000).

The 2000 planning rules were not immediately promulgated. Instead, the new regulations contained transition provisions which provided that, beginning on November 9, 2000, until the promulgation of the new, final rule, the Forest Service should consider "the best available science in implementing a forest plan."³ 36 C.F.R. § 219.35(a), (d) (2001). These transition provisions remained on the books until January 2005 when the new rules were finally implemented. 36 C.F.R. §§ 219.1 to .16 (2005); 70 Fed.Reg. 1,023 (Jan. 5, 2005). The 2005 rules retained the best available science standard, requiring the "Responsible Official [to] take into account the best available science" by "document[ing] how the best available science was taken into account in the planning process," and evaluating and disclosing substantial uncertainties and risks in that science. 36 C.F.R. § 219.11(a) (2005) (emphasis added).

B. The Seven Mile Project

The Seven Mile Spruce Beetle Management Project ("Seven Mile Project" or "Project") sitting within the 1,424,479 acres of the Fishlake National Forest in south-central Utah, is located approximately 22 miles east of Richfield, Utah. Because it sits within the Fishlake National Forest, the Seven Mile Project is governed by the Fishlake Forest Plan ("the Forest Plan" or "Plan"). See U.S. Dep't of Agric., Forest Service Region 4, Land and Resource Management Plan for the Fishlake

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National Forest, http://www.fs.fed.us/r4/dixie/projects/FParea/LiveDocs/Fishlake.pdf (last visited March 24, 2006) [hereinafter Forest Plan]. The Project involves a selective harvest of beetle-infested mature, dead, diseased, or dying Englemann spruce timber stands covering approximately 123 acres. By implementing the Project, the Forest Service plans to prevent an epidemic infestation of spruce beetle from spreading into adjacent stands and killing the spruce. In so doing, the Forest Service hopes to protect mature stands, preserve wildlife habitat, and reduce the risk of wildfire.

The Forest Service ultimately approved the Seven Mile Project under categorical exclusion 14 ("Category 14") in 2004. However, consideration of this particular project had begun over five years earlier. Beginning in June 1999, the Seven Mile Project was approved under another timber harvest categorical exclusion known as Category 4. When a federal district court in Illinois invalidated Category 4 later that year, Heartwood, Inc. v. U.S. Forest Serv., 73 F.Supp.2d 962 (S.D.Ill.1999), the Forest Service opted to prepare an environmental assessment for the Seven Mile Project, which was completed in June 2000. The Regional Forester deemed this environmental assessment inadequate; consequently, another draft environmental assessment for the Project was prepared in September 2003. At the same time the Forest Service was completing this revised environmental assessment, a new set of categorical exclusions was adopted by the Department of Agriculture, which included Category 14.

Category 14 applies to small acreage timber-thinning projects. Specifically, it excludes from NEPA review "commercial and noncommercial sanitation harvest of trees to control insects or disease...