Opinion
CAUSE NO. NA 99-214-C H/G
July 5, 2001
ENTRY ON MOTIONS FOR SUMMARY JUDGMENT
This is an action under the Administrative Procedure Act, 5 U.S.C. § 706 (2)(A), for judicial review of a final decision by the United States Forest Service to maintain 947 "forest openings" in the Hoosier National Forest ("the Forest"). These openings already exist, and would be maintained once every five years, primarily by mowing or burning.
Plaintiffs are the Indiana Forest Alliance, Inc. and several other groups and individuals who hike or camp in the Forest. They contend that the decision to continue maintaining the openings was arbitrary, capricious, and not in accordance with the procedural safeguards of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the more substantive protections of the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq. Both sides have moved for summary judgment. As explained below, the court finds that the Forest Service's decision was not arbitrary or capricious. Plaintiffs' challenges to the decision show not violations of law but only reasonable differences of opinion about how the Forest should be managed. Such a showing is insufficient to overturn an agency decision, which receives deferential review. Accordingly, plaintiffs' summary judgment motion is denied and defendants' summary judgment motion is granted.
Plaintiffs' allegations that they use the Forest for hiking, camping, and birding are sufficient to establish standing to bring this suit. See Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998) (advising that standing to bring NEPA action should be examined even where, as here, the defendant does not dispute it; plaintiffs whose use and enjoyment of a national forest could be diminished by agency decision had standing to bring suit where alleged procedural violations were connected to alleged harm); accord, Heartwood, Inc. v. United States Forest Service, 230 F.3d 947, 951-52 (7th Cir. 2000) (same); Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995) (interest in the use and enjoyment of the national forests is "concrete and legally cognizable"); see also Friends of Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 183 (2000) (persons for whom the aesthetic and recreational values of the area will be lessened have standing to bring environmental claims).
I. Background and Procedural History
The Forest Service's final decision under judicial review is the Regional Forester's October 1, 1999, affirmance of Forest Supervisor Kenneth G. Day's Decision Notice and Finding of No Significant Impact for Forest Openings Maintenance in the Brownstown and Tell City Ranger Districts of the Hoosier National Forest. (The Forest is divided into these two ranger districts for administrative purposes.)
The Regional Forester's decision constitutes a final decision by the United States Department of Agriculture, of which the Forest Service is a "subunit." See Rhodes, 153 F.3d at 788. The Department of Agriculture has delegated its statutory duty to administer the national forest system to the Forest Service. See 16 U.S.C. § 1604(a); 36 C.F.R. § 200.3(b)(2).
The Hoosier National Forest consists of approximately 196,102 acres arranged in a checkerboard of private and federal lands. The forested sections of the Forest can be categorized as early successional, mid-successional, and late successional based on the age and species of trees in the sections. Early successional forests include tree stands less than 10 years old. About 2.5 percent of the Forest is early successional. See AR 4240. Much of the early successional areas in the Forest exist in maintained forest openings and utility corridors. Mid — and late successional forests include tree stands over ten years old. The mid-successional areas of the Forest are dominated by tree species such as oaks, mixed hardwoods, and pines. About 90 percent of the Forest is mid-successional. The late successional areas of the Forest are dominated by species such as beech and maple. About 6 percent of the Forest is late successional. The developmental stages of forest sections affect the types of habitats they provide.
Citations to "AR" refer to the administrative record leading up to and including the Forest Service's final decision on the forest openings maintenance project. Documents comprising the Forest Service's appeal file in this matter are referred to as the "Appeal Record."
The Forest Service's management of the Forest is governed in part by the Hoosier National Forest Land and Resource Management Plan Amendment, approved April 9, 1991 (the "Plan"). The Plan contains "forest-wide guidance" on a number of topics, including forest openings. The guidance was intended to assist the Forest Service design projects that would be subjected to site-specific analysis after the Plan's implementation. See Plan, 2-5. Regarding openings, the guidance states, in part:
The NFMA requires the Forest Service to develop land and resource management plans for the national forest system. See 16 U.S.C. § 1604(a). See generally Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 728-729 (1998) (discussing forest plans and management of the national forests generally); Sierra Club v. Marita, 46 F.3d at 608-09 (7th Cir. 1995) (same; "The process for developing plans is quite elaborate.").
The Forest Service defines "Forest Openings" as:
Openings maintained to provide habitat or habitat components for plants and animals which require or are benefited by early successional stages of vegetation. May include natural openings (barrens) and other openings with native or non-native vegetation. These openings are maintained by periodic treatments, such as mowing, cutting, or prescribed burning. These included openings previously identified as "wildlife openings."
Plan, A-12.
New forest openings may be established, and some openings maintained in native vegetation as site opportunities permit, and as necessary to meet management area objectives. Forest openings are managed to provide early successional vegetation beneficial to some wildlife species, provide habitat for rare native plant communities, add visual variety, and provide for associated recreation opportunities such as hunting, berry picking, and wildlife conservation.
Plan, 2-9. According to the Plan, most of the openings in the Forest in 1991 were cropland, pasture, or home sites before becoming national forest. Plan Draft Environmental Impact Statement, 4-42. These openings would revert to forest if left to natural processes. Id. Other openings are natural and have relatively little or no tree growth because of site characteristics. Id. Almost all of the 947 openings included in the forest openings maintenance project have existed in the Forest for many years. Five openings have existed as open areas on lands that the Forest Service has acquired more recently. AR 2933.
Following the Plan's implementation, the Forest Service has maintained various openings pursuant to a series of decisions that were narrower in geographic and temporal scope than the one before the court. See AR 623 (1992 Decision Notice and Finding of No Significant Impact, Forest Openings Maintenance, Brownstown Ranger District); AR 242 (1993 Forest Openings Maintenance Decision Memo, Tell City Ranger District); AR 244 (1993 Forest Openings Maintenance Program Decision Memo, Brownstown Ranger District); AR 248 (1995 Forest Openings Maintenance Decision Memo, Tell City Ranger District); AR 250 (1995 Openings Maintenance Program Decision Memo, Brownstown Ranger District); AR 252 (1996 and 1997 Openings Maintenance Decision Memo, Brownstown and Tell City Ranger Districts).
These forest openings maintenance projects, as well as the one at issue here, were "tiered" to the Plan and its related documents (including the Forest Plan Draft Environmental Impact Statement (DEIS) and Final Environmental Impact Statement (FEIS)). See AR 255, 4229 (discussing tiering). Tiering allows the Forest Service to undertake a broad analysis of an issue at the forest plan level and to study the details later when a smaller-scale project is developed. See 40 C.F.R. § 1508.28; see also Inland Empire Public Lands Council v. United States Forest Service, 88 F.3d 754, 757 (9th Cir. 1996) (a tiered site-specific plan need not reiterate issues adequately addressed in the forest plan). The Plan DEIS and FEIS considered issues related to maintaining openings at some length, including many of issues raised in this litigation. See Plan DEIS, 4-42 to 4-47; Plan FEIS, 9-32 to 9-34, 9-44 to 9-46, and 9-60 to 9-64.
On March 20, 1998, the Forest Service announced a proposal for a somewhat more comprehensive approach to forest openings maintenance. That proposal ultimately led to the final decision now under review. In a letter known as a "scoping notice," the Forest Service proposed to maintain 972 openings covering 3,341 acres over a five-year period. The maintenance would be conducted by mowing (bush-hogging), burning, edge-maintenance by chainsaw cutting and heavy equipment, and brush-piles for wildlife would be built with heavy equipment. AR 20. About one-fifth of the openings would be maintained annually. According to the scoping notice, the purpose of the opening maintenance project was to provide early successional habitat for a variety of wildlife species, to add visual variety to the landscape, and to provide for recreational activities such as hunting, berry picking, and wildlife observation. Id. The Forest Service sought public comments on the proposal.
Forest Service regulations define "scoping" as "an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action." 40 C.F.R. § 1501.7. "Edge maintenance" is the removal of small trees on the edge of openings. AR 3579.
The Forest Service received about 20 responses to the scoping notice. Id. Members of the Indiana Forest Alliance and other plaintiffs were among those who opposed the proposal. They voiced concerns about a variety of issues, including the project's effects on neotropical migrant bird populations and other animals and plants in the Forest. The Forest Service also received some comments in support of the project.
On July 22, 1998, Forest Supervisor Day issued a Decision Memorandum announcing the Forest Service's decision to proceed with the project on 952 openings based on an internal review of issues raised in the scoping process. AR 3579. The maintenance would be performed by mowing and edge maintenance only, pending further study of the effects of burning and the use of heavy equipment. In addition, 20 openings in particularly sensitive areas were dropped from the project in response to public comments. About 300 acres of openings were maintained shortly following the decision. AR 4297.
On September 21, 1998, the Forest Supervisor withdrew the July 22, 1998, decision in order to perform an environmental assessment for the forest openings project. Id. This action was a response to the Seventh Circuit's August 27, 1998, decision in Rhodes v. Johnson, 153 F.3d at 787. In Rhodes, the court rejected the Forest Service's decision to review a proposal to burn and remove shrubs from the Shawnee National Forest on an internal basis only without conducting an environmental assessment.
As discussed below, an "environmental assessment" is a concise public document which provides the evidence and analysis the agency used in determining whether an action will have a significant environmental impact. See 40 C.F.R. § 1508.9. If there will be such an impact, the agency must prepare an environmental impact statement, which is the more detailed written statement required by NEPA. See id.; see also 40 C.F.R. § 1508.11, 42 U.S.C. § 4332 (2)(C).
During the months that followed, the Forest Service prepared an environmental assessment for the forest openings maintenance project. See AR 3681. The Forest Service considered three management alternatives in detail: the proposed action, an alternative using only mowing to maintain the openings, and a "no action" alternative under which no maintenance would be performed. The Forest Service then analyzed the environmental effects of the alternatives in the context of the six issues raised during the scoping process: (1) management efficiency; (2) burning as a management tool; (3) protection of karst features; (4) providing late successional habitat; (5) forest fragmentation; and (6) soil compaction and erosion.
"Karst terrain" is a "terrain, underlain by limestone, in which the topography is chiefly formed by the dissolving rock, and which is commonly characterized by closed depressions, subterranean drainage, and caves." Plan, A-16.
On March 11, 1999, the Forest Service sent the pre-decision environmental assessment to interested parties and provided a 30-day public comment period. See AR 3731, 3749. The Forest Service received about 90 responses. Several individuals and organizations (including the plaintiffs) opposed the project while several individuals and organizations supported the project.
Hunting organizations and individual hunters are among those who favor maintaining the forest openings. See, e.g., AR 3795 (letter of support from National Wild Turkey Federation); AR 3821 ("If everyone would spend a few hours near one of these areas as I have while hunting, they would be aware of the large numbers of small mammals and birds that use [openings]."); AR 3830 (letter of support from Indiana State Trappers Association). Others support the project because the openings provide greater variety in the Forest. See, e.g., AR 3776 ("I love to see large trees like most people, but there is so much more to a forest.").
On June 28, 1999, the Forest Service issued its Decision Notice and Finding of No Significant Impact indicating its intent to implement the forest openings maintenance program. The decision was accompanied by its final Environmental Assessment for the project. The Decision Notice explained that the Forest Service would proceed with maintenance on 947 openings, down from the 958 openings considered in the Environmental Assessment. Forest Supervisor Day decided to drop 11 openings from the project based in part on comments from the public. AR 4315.
An administrative appeal followed. Appeal Reviewing Officer Steven Kessler prepared a memorandum to the Regional Forester analyzing all arguments raised on appeal. On September 20, 1999, Officer Kessler recommended the affirmance of the Forest Service's decision to maintain the forest openings. Appeal Record 75. Regional Forester Robert T. Jacobs incorporated Officer Kessler's findings in full on each of the appeal issues and adopted his recommendation to affirm the Forest Service's decision on October 1, 1999. Appeal Record 85.
II. Standard of Review
The Administrative Procedure Act sets forth the applicable scope of judicial review for cases like this one. In relevant part, the APA requires the reviewing court to hold unlawful and to set aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The agency decision is entitled to a presumption of regularity. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971). The scope of review is narrowly circumscribed, permitting the court to evaluate only whether the decisions were based on a consideration of the relevant factors and whether there has been a clear error of judgment by the administrative body. Id. at 416.
The requirements imposed on agencies by the National Environmental Policy Act are essentially procedural. If an agency's decision is based on the appropriate information and considerations, it must be upheld even it is not a decision that a judge would have made in the first instance as the decision-maker for the federal agency. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558 (1978). "Administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute . . . not simply because the court is unhappy with the result reached." Id. (citation omitted). In other words, if the agency followed NEPA's procedural mandate, the court must not substitute its judgment for that of the agency as to the action to be taken. Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 (1980); Sierra Club v. Marita, 46 F.3d at 619. NEPA 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). "NEPA merely prohibits uninformed — rather than unwise — agency action." Id. The burden of proof is on the plaintiffs to demonstrate that the Forest Service's decision was improper. Sierra Club v. Marita, 46 F.3d at 619.
The National Forest Management Act governs the development of forest plans and requires that they provide for biological diversity. See 16 U.S.C. § 1604. While the statute creates substantive requirements for forest management, it does not provide for direct judicial review. See Sierra Club v. Marita, 46 F.3d at 610 n. 3. Claims that an agency has violated NFMA's substantive provisions therefore must be brought under the APA, see id., to that an agency's action under the NFMA will be upheld unless the administrative record shows that the agency acted arbitrarily or capriciously in light of applicable NFMA standards.
Deference to agency expertise does not, however, shield agency action from a "thorough, probing, in-depth review" to determine if the agency has relied on irrelevant factors, wholly failed to consider an important issue, or "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" such that the agency has violated the standards of the APA. Citizens to Preserve Overton Park, 401 U.S. at 415; Mahler v. United States Forest Service, 128 F.3d 573, 582 (7th Cir. 1997). Nevertheless, review of the adequacy of the agency's decision-making process should not open the door to reargument of the merits of the agency's decision. The role of the court is only to ensure that the agency took a "hard look" at environmental considerations. See Kleppe, 427 U.S. at 410 n. 21; City of Des Plaines v. Metropolitan Sanitary District of Chicago, 552 F.2d 736, 738 (7th Cir. 1977).
In the review of an agency action under the APA, the court's analysis is confined to the evidence in the administrative record. 5 U.S.C. § 706; Smith v. Office of Civilian Health and Medical Program of the Uniformed Servs., 97 F.3d 950, 955 (7th Cir. 1996); Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994). It is not the function of the court to conduct an unguided search of the record in search of evidence to support or refute any party's position, nor has the court done so. This case comes before the court on the parties' cross-motions for summary judgment. Where the court's task is to review an administrative record and to apply legal standards to that record, summary judgment is an appropriate vehicle for deciding the case. See Hunger, 15 F.3d at 669.
III. Discussion
Plaintiffs contend the Forest Service's decision to implement the forest opening project was unlawful on two grounds. First, plaintiffs contend that NEPA requires the Forest Service to prepare a full environmental impact statement for the project, not merely a less thorough environmental assessment. Second, plaintiffs assert that the Forest Service violated the NFMA by not collecting population data for management indicator species and by not establishing population objectives for sensitive species.
A. NEPA — Environmental Impact Statement v. Environmental Assessment
Plaintiffs contend that NEPA requires the Forest Service to perform a substantially more detailed analysis of the forest openings project by preparing an environmental impact statement ("EIS"). Under NEPA, federal agencies must include an EIS in every recommendation for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); City of Evanston v. Regional Transp. Authority, 825 F.2d 1121, 1124 (7th Cir. 1987). Conversely, an agency is not required to prepare an EIS where the proposed action will not significantly affect the environment. See id. (citing cases). Cf. River Road Alliance v. Corps of Eng. of United States Army, 764 F.2d 445, 450 (7th Cir. 1985) (whether a federal action is "major" adds nothing to the analysis of whether the action will significantly affect the environment). Preparing an EIS can be a long and expensive process. See id. at 449 (citing example of an EIS estimated to cost $250,000 several years ago). The Seventh Circuit has observed that "if such a statement were required for every proposed federal action that might affect the environment, federal governmental activity and the private activity dependent on it would pretty much grind to a halt." Id.
The Council on Environmental Quality (CEQ) has promulgated regulations to establish uniform procedures for determining whether, when, and how to prepare an EIS. See 42 U.S.C. § 4341-4347 (establishing the CEQ); see also 40 C.F.R. § 1500-1517. The CEQ regulations direct agencies to adopt implementing procedures to determine which actions normally do not have any significant impact on the environment and so need not be the subject of a study or report. These actions are referred to as "categorical exclusions." 40 C.F.R. § 1501.4(a)(2). See also Rhodes, 153 F.3d at 788; Heartwood, Inc. v. United States Forest Service, 230 F.3d 947, 949-50 (7th Cir. 2000). If a proposed action is neither one normally requiring an environmental impact statement nor one normally a categorical exclusion, the agency must prepare an environmental assessment, which is a "rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary." Rhodes, 153 F.3d at 788, quoting Cronin v. United Stated Dep't of Agriculture, 919 F.2d 439, 443 (7th Cir. 1990).
An environmental assessment leads either to a finding of no significant impact or to a finding that the project will have a significant impact, in which case an EIS is required. Id. What constitutes a "significant" impact is hard to define. See Abbema v. Fornell, 807 F.2d 633, 637 (7th Cir. 1986), citing River Road Alliance, 764 F.2d at 450 (describing difficulties). To interpret "significant" essentially requires a prediction: "whether the time and expense of preparing an environmental impact statement are commensurate with the likely benefits from a more searching evaluation than an environmental assessment provides." River Road Alliance, 764 F.2d at 449. The CEQ regulations require the agency to consider the context and intensity of the action's likely effects in detail to determine whether the impact of a proposed action is significant. See 40 C.F.R. § 1508.27 (defining "significantly").
In this case, the Forest Service did not prepare an EIS for the project because it made a finding of no significant impact ("FONSI," in NEPA jargon) at the culmination of the environmental assessment process. Under the arbitrary and capricious standard of review, the Forest Service's decision not to prepare an EIS will be upheld if it was based on a consideration of relevant factors and was made on a rational basis. State of Wisconsin v. Weinberger, 745 F.2d 412, 417 (7th Cir. 1984) (reviewing decision not to prepare a supplemental environmental impact statement); River Road Alliance, 764 F.2d at 449. Because the Forest Service allowed public input into its preparation of the environmental assessment for the forest openings maintenance project, its conclusion that no EIS is warranted is entitled to additional deference. Id. at 451.
Plaintiffs argue that the Forest Service failed to consider properly four of the factors that the CEQ regulations identify as indicia of intensity, which the agency must consider in determining whether its action will significantly impact the environment. These factors are: (1) the degree to which the effects are likely to be "highly controversial"; (2) the cumulative effects of the action; (3) the unique characteristics of the geographic area; and (4) the beneficial impacts of the project. See 40 C.F.R. § 1508.27. Plaintiffs also contend that the Forest Service did not adequately consider site-specific concerns and that the length of the Environmental Assessment proves that an EIS is necessary.
1. Environmental Status Quo
Before addressing plaintiffs' many specific attacks, the court addresses the Forest Service's broad argument that it was not required to prepare an EIS because the decision at issue would merely maintain the environmental status quo. The Forest Service has not proposed the creation of any new openings. Its decision would affect only certain openings that have existed for some time.
Plaintiffs contend that the court should not consider the Forest Service's environmental status quo argument because it is a "post-hoc rationalization" for the agency's final action not articulated in the FONSI. See Pl. Reply at 1. The court disagrees. The court understands the environmental status quo concept as a gloss on the Forest's Service general response to plaintiffs' NEPA allegations and not as an unspoken reason for the decision to implement the forest openings maintenance project in the first place. The cases cited in this section do not indicate whether the agencies first invoked the status quo defense at the time of a final decision or later during litigation.
The Forest Service relies on a line of cases holding that NEPA did not require an EIS when an agency proposed merely to preserve the environmental status quo. See, e.g., Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 679 (5th Cir. 1992) ("the acquisition of a negative easement which by its terms prohibits any change in the status quo does not amount to major Federal action significantly affecting the quality of the human environment.") (citation and internal quotation marks omitted); Upper Snake River v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990) (EIS was not required where it would have discussed the environmental effects of continuing to use land in the manner in which it was being used); Sierra Club v. Hassell, 636 F.2d 1095, 1099 (5th Cir. 1981) (rebuilding a 24-year-old bridge destroyed by a hurricane would maintain the environmental status quo and did not require an EIS under agency regulations); City County of San Francisco v. United States, 615 F.2d 498, 501 (9th Cir. 1980) (agency required to consider the environmental effects of having only a new tenant lease a shipyard; "the Navy was not required to evaluate the environmental consequences of the lease as if the Navy were proposing to establish this multi-million dollar industrial complex for the first time"); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1003 (D.C. Cir. 1979) (no EIS required when government leased pre-existing parking facility to management firm because there was no change in the status quo); Overseas Shipping Group, Inc. v. Skinner, 767 F. Supp. 287, 298 (D.D.C. 1991) (agency was not required to consider effects of rule permitting large crude tankers to navigate domestic waters as if temporary waivers for tankers had never existed; "[t]he agency correctly refused to extrapolate based upon a situation which no longer exists, and correctly evaluated the status quo at the time of the rulemaking").
These cases reason that if the proposed action will not change the physical environment as it exists at the time of the agency action, there can be no significant effect under NEPA. See Sabine River Authority, 951 F.2d at 680, citing Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 773 (1983) (NEPA inquiry is whether the federal action at issue is "proximately related to a change in the physical environment").
Read together, these cases offer a possible defense to a NEPA challenge when the agency can show that a proposed action is so insubstantial in light of existing environmental conditions that it need not be subject to further consideration under the rules that define a "significant impact on the human environment." If a proposed action will affect the status quo, a more detailed analysis of whether the action will significantly impact the environment is required.
Here, the Forest Service's proposed decision to maintain forest openings is different in scope and nature from the decisions cited above. Because the openings would grow back into forest if left alone, the decision to maintain them is not analogous to decisions simply to preserve the environmental conditions present at the time of an agency decision. In this context, the court cannot conclude as a matter of law that the forest openings maintenance project would simply maintain the status quo in the Forest. Accordingly, the court addresses plaintiffs' specific arguments about the need for an EIS under the regulations that define "significant impact."
2. Highly Controversial Effects
The CEQ regulations define "significantly" and "intensity" to require the agency to consider the degree to which the proposed action's likely environmental effects are "highly controversial." 40 C.F.R. § 1508.27(b)(4). Plaintiffs argue that the Forest Service must prepare an EIS because the administrative record demonstrates a scientific controversy about the effects of the proposed forest openings maintenance program.
Neither the regulations nor relevant cases explain in detail how great the difference of opinion must be in the scientific community to establish a controversy sufficient to trigger the duty to perform an EIS. See Sierra Club v. Watkins, 808 F. Supp. 852, 860 (D.D.C. 1991). Courts have said that there must be a "substantial" dispute about the effects of the proposed action. See id. n. 9 (citing cases from the Fourth, Eighth, and Ninth Circuits); see also Friends of the Ompompanoosuc v. F.E.R.C., 968 F.2d 1549, 1557 (2d Cir. 1992). The mere existence of a disagreement about the effects of a project does not amount to "scientific controversy." Sierra Club v. Watkins, 808 F. Supp. at 862 (agency not required to consider and discuss every viewpoint in the scientific community on a given matter). When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. Id., citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378 (1989). "Highly controversial" means not just whether there is opposition to the proposal but whether there is a substantial dispute as to the size, nature, or effect of the proposal. See, e.g., Friends of the Ompompanoosuc, 968 F.2d at 1557.
The Seventh Circuit has not addressed this issue.
The forest openings project does not enjoy universal support among wildlife experts and specialists, but the administrative record shows support for the project by Dr. John Castrale, a non-game biologist from the IDNR Division of Fish and Wildlife, AR 877-78 (14 bird species would benefit from openings maintenance; "Since very little timber cutting has occurred during the last 20 years, maintenance of forest openings is now the only planned way to maintain a proportion (albeit small) of the forest in early successional habitats."); Rex Watters, IDNR Reservoir Wildlife Specialist, AR 3771 (commenting that in light of the IDNR's maintenance of openings on Monroe Reservoir, "[t]he benefits of maintaining these openings far [outweigh] the expense and effort required"); Gary Doxtater, Director of the IDNR Division of Fish and Wildlife, AR 3814 (discussing benefits of openings maintenance on several bird species, bobcats, rabbits, and small rodents); Mark Banker, Regional Biologist for the Ruffed Grouse Society, AR 3783 ("Wildlife survey data for Indiana strongly supports the Forest's contention that the management of early successional habitat is critical."); and the Indiana Chapter of the Wildlife Society (a self described organization of professional biologists dedicated to conservation and research concerning wildlife in Indiana), AR 3986 (openings maintenance will benefit several bird species).
In their Reply, plaintiffs question the qualifications of the specialists on whose opinion the Forest Service relies. See Pl. Reply at 6. They note that the Environmental Assessment states that two Forest Service employees have degrees in zoology. See AR 4255. They claim that only ornithologists, like Graber, Whitehead, and Winslow, are qualified to provide evidence about the forest openings maintenance project's effects on birds. The court disagrees. NEPA requires the Forest Service to make informed decisions. It does not specify how those decisions are made. It was not unreasonable for the Forest Service to rely on information provided by zoologists and other wildlife specialists. Whether an EIS is necessary on a theory of "controversy" is not decided by gauging the relative qualifications of experts who disagree on forest management issues.
The Forest Service has stated that the maintenance project is necessary to ensure the continued availability of early successional habitat. AR 4226. In the Environmental Assessment, the Forest Service considered the forest openings project's effects on various bird species. The Forest Service based its findings on the book The Birds of Indiana and on discussions with two "local bird experts." In Table 1, the Environmental Assessment indicated that 17 of the 24 species from the Audubon Society Indiana Watchlist are "dependent on the types of habitats provided by maintained forest openings." AR 4227. The Forest Service found that 12 of those 17 species breed in or near the Forest. Beyond the information provided in Table 1, the Forest Service also stated in the Environmental Assessment that the Scarlet Tanager and Bewick's wren could benefit from the openings maintenance project. AR 4226, 4277.
Plaintiffs assert that evidence in the administrative record that contradicts the Forest Service's position on the effects of and need for the project shows that the project is highly controversial. Plaintiffs point to comments submitted by Dr. Donald Whitehead, Donald Winslow, Dr. Jean Graber, and Scott Pruitt. Whitehead is a biology professor at Indiana University who has researched songbirds in Indiana. Appeal Record 23. Winslow is a doctoral candidate at Indiana University who researches bird breeding in the Forest. Appeal Record 18. Graber is an ornithologist retired from the Illinois Natural History Survey. See AR 3916. Pruitt is an acting supervisor for the U.S. Fish and Wildlife Service. See AR 3514. According to Whitehead, eight of the bird species on the Indiana Watchlist have never been "tallied" in the Forest. In addition, Bewick's wren has not been sighted in the Forest recently. Regarding the Scarlet Tanager, Whitehead contends that Forest Service was simply wrong that it would benefit from maintained openings. In his opinion, maintaining the openings would reduce the Scarlet Tanager's available breeding habitat and would expose it to increased cowbird parasitism. In Whitehead's view, the Forest Service was so obviously wrong about the Scarlet Tanager that it "seriously undermines the scientific credibility of the [environmental] assessment." Appeal Record 26.
These species are the Henslow's sparrow, short-eared owl, Bell's vireo, golden-winged warbler, bobolink, dickcissel, Bachman's Sparrow, and field sparrow. Appeal Record 26.
The cowbird lays its eggs in other birds' nests. See AR 1024.
Whitehead also disagrees with the Forest Service's use of the Audubon Society Indiana Watchlist as a reference source. With his comments on the pre-decision environmental assessment, Whitehead submitted a list of birds that occur in the Forest. The list included 47 neotropical birds, of which Whitehead believes 21 should be considered a priority for forest management because they are prioritized by Partners in Flight, the Audubon Society, and/or are state-listed endangered species. According to Whitehead, 17 of those 21 bird species would be negatively affected by openings maintenance. The remaining four "might be unaffected." Of the 26 non-priority species on the list, 14 would be negatively affected by forest openings. Impacts on the remaining 12 would be neutral, except for the cowbird, which would benefit from openings maintenance to the detriment of many priority species. Appeal Record 25. Winslow also found that the EA failed to consider the effects on several forest birds.
Winslow identified seven forest birds that the Forest Service should have considered (black-and-white warbler, broad-winged hawk, cerulean warbler, hooded warbler, red-shouldered hawk, sharp-shinned hawks, and worm-eating warbler). In fact, however, the cerulean warbler and the worm-eating warbler do appear on the Indiana Watchlist that the Forest Service used in Table 1, though the others do not. AR 4227.
Graber and Pruitt dispute the claim that the openings benefit birds that occur in early successional habitat. They contend many of the openings are too small to provide an adequate habitat. See AR 3917 (Graber). According to Pruitt, Henslow's sparrow and similar species can benefit by maintaining only large acreages of early successional habitat. AR 3514-15.
Whitehead and Winslow also challenge the Forest Service's general assertion that there is a need to maintain openings in order to guarantee early successional habitat in the Forest. In the Environmental Assessment, the Forest Service wrote that openings should be maintained because fewer openings have occurred over the past several years through farming, grazing, and logging. AR 4226 ("Very little early successional habitat has been created on the Forest over the past ten years."). Whitehead and Winslow contend that natural disturbances such as storms and the deaths of trees can provide adequate successional habitat.
Thus, plaintiffs assert that the forest openings maintenance project is "highly controversial" within the meaning of 40 C.F.R. § 1508.27(b)(4) because they "have demonstrated that experts and state and federal agencies disagree about the effects of the forest openings project on the human environment." See Pl. Br. at 11. This disagreement is not enough to establish a need for an EIS.
In Sierra Club v. Marita, 46 F.3d 606, the Seventh Circuit rejected a challenge to the methodology the Forest Service used to analyze biological diversity issues in forest plans for two national forests in Wisconsin. The Sierra Club advocated the use of "conservation biology," which, generally speaking, measures diversity through an "understanding of the relationships between differing landscape patterns and among various habitats." Id. at 617. A major premise of conservation biology is that the size of habitat affects the survival of the habitat and the diversity of plant and animal species within that habitat. Id. In contrast, the Forest Service analyzed diversity within discrete areas of the forest without reference to "patch size."
The Seventh Circuit upheld the forest plans as drafted by the Forest Service. Although the NFMA and various NEPA regulations required the Forest Service to account for diversity in designing the plans, they did not require a particular method or particular result. Id. at 621 ("The Service is entitled to use its own methodology, unless it is irrational."). The court commented: "The Sierra Club may have wished the Service to analyze diversity in a different way, but we cannot conclude on the basis of the records before us that the Service's methodology arbitrarily or capriciously neglected the diversity of ecological communities in the forest." Id. at 620.
Here, the record shows that the Forest Service considered in the Environmental Assessment the issues raised by Winslow, Whitehead, Pruitt, and Graber. See, e.g., AR 4300-01 (responding to questions regarding the need for openings maintenance); at AR 4303, 4306-07 (addressing concerns about Henslow's sparrow); AR 4226, 4308 (acknowledging that Bewick's wren and Bachman's sparrow may not currently be present in the Forest); AR 4310 (10 out of 12 sources recommended by Winslow were reviewed; the Forest Service considered but rejected Winslow's comments). This is what NEPA requires. See Sierra Club v. Espy, 38 F.3d at 802 (NEPA requires informed decision-making but not a particular result). The Forest Service has substantial discretion in choosing how to analyze possible environmental effects. See Louisiana ex rel. Fuste v. Verity, 853 F.2d 322, 329 (5th Cir. 1988) ("[U]nder the arbitrary-and-capricious standard, our deference to the agency is greatest when reviewing technical matters within its area of expertise, particularly its choice of scientific data and statistical methodology."). Plaintiffs have not demonstrated that the Forest Service's decision to implement the forest openings maintenance project was sufficiently controversial to require the Forest Service to prepare an EIS.
There is some question as to whether the Forest Service fully considered Winslow's list of Forestland Neotropical Migrant Landbirds Occurring in Hoosier National Forest. AR 3952. As indicated above, the Forest Service noted in the Environmental Assessment that it considered Winslow's comments generally. In its brief, the Forest Service stated that it considered the project's effects on the species on Winslow's list. See Def. Br. at 18 n. 6, citing AR 2941(Forest Species of Concern Memo); and Exhibit C (Biological Evaluation). However, the Forest Species of Concern Memo and the Biological Evaluation do not mention by name many of the species on Winslow's list.
3. Cumulative Effects
Plaintiffs also contend that the Forest Service failed to consider adequately the cumulative effects or impacts of maintaining the forest opening project. Cumulative effects are those that result from the "incremental impact of the action when added to the past, present, and reasonably foreseeable future actions. . . ." 40 C.F.R. § 1508.7. An agency must consider cumulative effects in deciding whether a proposed action will significantly affect the environment. 40 C.F.R. § 1508.27(b)(7).
The court refers to "cumulative effects" and "cumulative impacts" interchangeably. NEPA refers to effects, while the regulations refer to impacts.
The "determination of the extent and effect of [cumulative impacts], and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies." Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976), quoted in Hoosier Environmental Council v. U.S. Army Corps of Engineers, 105 F. Supp.2d 953, 980 (S.D.Ind. 2000). In reviewing the agency's conclusions about cumulative effects, the court merely considers whether the decision was arbitrary or an abuse of discretion. See Hoosier Environmental Council, 105 F. Supp.2d at 980. "Even if environmental interrelationships could be shown conclusively to extend across [geographic areas], practical considerations of feasibility might well necessitate restricting the scope of comprehensive statements." Id., quoting Kleppe, 427 U.S. at 414. Plaintiffs have the burden of showing exactly how the agency's decision-making was flawed. Id. (rejecting cumulative effects challenge where plaintiffs questioned the extent of the agency's cumulative effects analysis without pointing to any facts in the record that would demonstrate that the agency abused its discretion).
The Forest Service addressed the cumulative effects of the forest openings maintenance project in the Environmental Assessment. The Environmental Assessment includes a section on the possible cumulative effects of each management alternative with respect to each of the issues identified in the scoping process. See AR 4236 (cumulative effects on management efficiency); AR 4237 (cumulative effects related to use of prescribed fire); AR 4238-39 (cumulative effects on karst features); AR 4240-41 (cumulative effects on late successional habitat); AR 4242-43 (cumulative effects on forest fragmentation); AR 4243-44 (cumulative effects on soil compaction or erosion); AR 4245 (cumulative effects on heritage resources); AR 4246 (cumulative effects on threatened and endangered species). In addition, the Biological Evaluation and the Forest Species of Concern Memo discussed the cumulative effects of the maintenance project. AR 2936, 2942. The Forest Service also addressed cumulative effects in response to a public comment on the subject. AR 4259.
Plaintiffs have two complaints about the Forest Service's cumulative effects analysis. First, they assert that the Forest Service should have analyzed the cumulative effects of the openings maintenance project in light of present and future private land use in and around the Forest. Second, plaintiffs argue that the Forest Service was required to consider its own future acts, such as what plaintiffs describe as its "penchant for timber sales."
The Forest Service adequately addressed the cumulative effects of the forest openings maintenance project. Regarding plaintiffs' specific concerns, the Forest Service did consider the possible cumulative effects of activities on private lands. In the Environmental Assessment, the Forest Service discussed private lands in its consideration of forest fragmentation and successional habitat issues. For example, the agency acknowledged that non-forested private lands often are in the early successional stage of development. However, the Forest Service has characterized the open habitats available on private lands as "lesser quality" habitat. AR 4226.
The plaintiffs have not specified what particular activities on private lands the Forest Service should have considered but did not. It is the plaintiffs' burden to do so. Plaintiffs cannot mount a successful cumulative effects challenge based on unarticulated speculation about what might happen on private lands in the future. See Ringsred v. City of Duluth, 828 F.2d 1305, 1308-09 (8th Cir. 1987) ("A requirement that every Environmental Assessment must speculate as to the environmental effects of privately proposed developments that are outside the control of the federal government would create burdens in the Environmental Assessment `screening process' that are equally significant to those placed on an agency required to file an EIS.").
The Forest Service also considered its own activities, including future timber harvests. See AR 4230 ("[p]rojects likely to occur near openings include timber harvest . . ."). The Environmental Assessment explained that the typical timber harvest prescription is "uneven-aged silvicultural techniques designed to accelerate late-successional forest condition." AR 4240-41. Future timber harvests therefore are not likely to duplicate the effects of the openings maintenance project by creating additional early successional conditions. Rather, future timber harvests would likely result in shifts from mid- to late successional forest stands. See id. This consideration of the cumulative effects of the openings maintenance project was adequate in light of the lack of record evidence of about the Forest Service's future timber sales, other than the general information provided in the Environmental Assessment. If the Forest Service's practices with respect to timber harvesting change significantly in the future, specific future decisions would be subject to administrative and judicial review. See River Rd. Alliance, 764 F.2d at 452 (rejecting cumulative effects challenge because agency would be able to control future use of river through permitting process).
4. Unique Characteristics
The "unique characteristics of the geographic area" are another indicator of the "intensity" of a project under the CEQ regulation's definition of "significantly." 40 C.F.R. § 1508.27 (b)(3). "Unique characteristics" include "ecologically critical areas." Id. Plaintiffs argue that some of the openings scheduled for maintenance are in or near unique ecosystems, including what the Forest Service calls "special" and "core" areas, and in areas near rare plant species.
The Forest Service adequately considered unique characteristics in the Environmental Assessment. Over time, the Forest Service modified its original proposal for the forest openings maintenance project because of concerns about certain unique features that were raised in the scoping process and in the comments about the pre-decision environmental assessment. The Forest Service originally proposed to maintain 977 openings. The Forest Service reduced that number to 952 because several openings were located in particularly sensitive areas. Those openings were removed from the proposal. See AR 3579 (the Forest Service's first decision on the openings maintenance project).
The Forest Service continued considering unique characteristics in or near the openings during the course of completing the Environmental Assessment. See AR 3491 ("Maps of the designated forest core areas were reviewed and any openings within their boundaries were dropped."). By the time of the Forest Service's final decision, the total number of openings was reduced to 947 because of the particular characteristics of certain openings. See AR 4315. In addition, the Forest Service considered the project's effects on karst features, one of the issues raised in the scoping process. AR 4238-4239. At the end of the environmental assessment process, the Forest Service concluded that no unique characteristics of the relevant geographical areas would be affected by the project. AR 4318.
While plaintiffs have identified certain unique characteristics of the Forest, such as its karst features, core areas, special areas, and large habitats for birds, plaintiffs have not shown that the Forest Service unreasonably concluded that the forest openings maintenance project will not significantly affect any of them. Plaintiffs' most specific objection relates to comments provided by Cloyce Hedge, Coordinator, Indiana Natural Heritage Data Center, IDNR Division of Nature Preserves. Hedge has stated that the reforestation of openings would benefit the state-listed northern cavefish, amblyopsis spelaea. AR 3511. However, Hedge also acknowledged that the maintenance project has potential benefits for karst areas as well as benefits for species that occur in early successional habitat. See id. (grassland vegetation on an opening in the Brownstown Ranger District "does significantly reduce erosion and sedimentation into karst drainage systems"; "managing for open grasslands does indeed benefit species with this habitat requirement."). The administrative record shows that the Forest Service adequately considered unique characteristics found in the openings and reasonably concluded that the maintenance project would not significantly affect those characteristics. The mere presence of unique features does not require the Forest Service to prepare an EIS.
Plaintiffs contend incorrectly that collateral estoppel bars the Forest Service's defense against the claim that the Forest has such unique characteristics that an EIS is required. House v. United States Forest Service, 974 F. Supp. 1022 (E.D.Ky. 1997) held, in relevant part, that an EIS was necessary with respect to a proposed timber sale near the Red River Gorge in Kentucky where the Forest Service had failed to take a "hard look" at evidence related to the anticipated negative effects on the Indiana bat, an endangered species. House has no preclusive effect because the issue here is not identical. See Kunzelman v. Thompson, 799 F.2d 1172, 1176 (7th Cir. 1986) (citations omitted) (collateral estoppel precludes relitigation of issues in a subsequent proceeding when: (1) the party against whom the doctrine is asserted was a party to the earlier proceeding; (2) the issue was actually litigated and decided on the merits; (3) the resolution of the particular issue was necessary to the result; and (4) the issues are identical).
Viewing House as persuasive authority, it is distinguishable. There is no evidence that the forest openings maintenance project would threaten the Indiana bat or any endangered species. On this point, plaintiffs have overstated the record evidence, asserting that Cloyce Hedge believed the northern cavefish, a state-listed species, would be harmed by the openings maintenance project. See Pl. Br. at 12. In fact, as discussed above, Hedge wrote that the northern cavefish would benefit from reforestation. The court must assume that if Hedge believed the cavefish would be harmed by the project, Hedge would have said so.
5. Beneficial Impacts
The CEQ regulations provide that an agency should consider both beneficial and adverse impacts in measuring the intensity or severity of a project's likely effects. See 40 C.F.R. § 1508.27 (b)(1). "A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial." Id. The plaintiffs argue that the Forest Service's assertion that maintaining the openings will have beneficial effects for species that require early successional habitat demonstrates that the project has a significant impact and therefore requires an EIS. The court disagrees.
In their Reply, plaintiffs argue that the Forest Service's failure to address their "beneficial impacts" argument in its responsive brief constitutes a waiver on this issue. On plaintiffs' summary judgment motion, plaintiffs have the burden to prove they are entitled to judgment as a matter of law. Although the Forest Service has waived the opportunity to offer argument on this particular issue, such a waiver does not, without more, entitle plaintiffs to judgment in their favor.
Although few courts have construed 40 C.F.R. § 1508.27 (b)(1), the Sixth Circuit has rejected the argument plaintiffs make here. In Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 505 (6th Cir. 1995), the court affirmed an agency's decision not to conduct an EIS. The plaintiffs asserted that the agency's declaration that "the project will have a positive impact on the living environment of the residents of the area" triggered the agency's duty to prepare an EIS. The court upheld the agency's decision not to prepare an EIS based on the general rules that govern such an analysis. "It would be anomalous to conclude that an environmental impact statement is necessitated by an assessment which identifies beneficial impacts while forecasting no significant adverse impacts, when the same assessment would not require the preparation of an impact statement if the assessment predicted no significant beneficial effect." Id. See also Rosebud Sioux Tribe v. Gover, 104 F. Supp.2d 1194, 1211 (D.S.D. 2000) ("[T]he conclusion that a project will have purely beneficial impacts does not require preparation of an EIS.").
Under the Sixth Circuit's analysis, 40 C.F.R. § 1508.27(b)(1) is relevant only in situations where the agency must balance significant adverse impacts against significant beneficial impacts. Friends of Fiery Gizzard, 61 F.3d at 505. The court agrees, and that is not the case here. The Forest Service considered both the beneficial and negative effects of the forest openings maintenance project and found that there would be no significant adverse effects. AR 4318. 40 C.F.R. § 1508.27(b)(1) therefore does not come into play because the agency had no need to consider whether "on balance," there would be significant beneficial effects. Plaintiffs' construction of 40 C.F.R. § 1508.27(b)(1) is unreasonable. It would require the Forest Service to prepare an EIS for every project that it contends would have a significant beneficial impact on the environment. This is not what NEPA requires.
In Friends of Fiery Gizzard, the Sixth Circuit acknowledged in a footnote that the Fifth Circuit suggested in dicta over 25 years ago that an environmental impact statement may be necessary even if only significant beneficial effects will flow from an agency action. See Friends of Fiery Gizzard, 61 F.3d at 505 n. 1, citing Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 426-27 (5th Cir. 1973), disavowed on other grounds by Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 492 F.2d 1123 (5th Cir. 1974). See also Environmental Defense Fund v. Marsh, 651 F.2d 983, 993, 997 (5th Cir. 1981) (requiring agency to prepare supplemental EIS because, among other things, the agency had a duty to analyze significant beneficial effects); National Wildlife Federation v. Marsh, 721 F.2d 767, 782-83 (11th Cir. 1983) (under Environmental Defense Fund v. Marsh, adoption of mitigation plan necessitated supplemental EIS). As the Sixth Circuit noted, however, over time there has been "a loosening of the judicial reins on agency decisions not to require environmental impact statements." Friends of Fiery Gizzard, 61 F.3d at 505 n. 1, quoting River Road Alliance, 764 F.2d at 450-51. As the Seventh Circuit has commented, this "loosening" has been motivated by an awareness that requiring environmental impact statements "would use up resources better spent in careful study of actions likely to harm the environment substantially." Id.
6. Site-Specific Analysis
Plaintiffs also charge that NEPA required the Forest Service to undertake a site-specific analysis for each of the 947 openings scheduled for maintenance. This approach would turn the environmental assessment process on its head. See 40 C.F.R. § 1508.9 (environmental assessment is a "concise public document").
Plaintiffs rely on California v. Block, 690 F.2d 753, 764 (9th Cir. 1982), where the Ninth Circuit required the Forest Service to conduct a more detailed, site-specific analysis. Block is inapposite in several important respects. Procedurally, Block involved a challenge to an EIS for the Roadless Area Review and Evaluation project (RARE II). Under RARE II, the Forest Service designated 62 million acres of national forest for "wilderness," "further planning," or "nonwilderness." The State of California challenged the designation of nonwilderness areas in the state.
Plaintiffs also cited two Forest Service Appeal Decisions. The court has not considered these decisions because they were not made available to the court. Although Forest Service Appeal Decisions are available on the Forest Service website, none was indexed by the name "Flathead Plan Decision" or by the citations "Appeal Decision NFS # 1513 1467" or "Appeal Decision #ER- 0079." Under Local Rule 7.1(b), a party citing a decision, statute, or regulation that is not available on Westlaw or Lexis/Nexis must furnish a copy to the court and other parties.
Of relevance here, the Ninth Circuit held that the EIS was inadequate because the Forest Service did not conduct a proper site-specific analysis for the nonwilderness areas. The court observed that the level of detail that NEPA requires depends upon the nature and scope of the proposed action. Id. at 761, citing Aberdeen Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 322 (1975). When a programmatic EIS already has been prepared, detailed site-specific analyses are required when a critical decision has been made that will result in an "irreversible and irretrievable commitment of the availability of resources" to a project at a particular site. Id. at 761 (citation omitted). The Block court held the EIS to a high standard because of the importance of a "nonwilderness" designation. The court concluded that the designation, which would be in effect for at least the next ten to fifteen years, was "irreversible and irretrievable." 690 F.2d at 763.
Here, because of the limited nature and scope of the forest openings maintenance project, the Forest Service's analysis of site-specific issues must be held to a lower standard than the one applied in Block. This project has a limited geographic scope. Many of the openings are only a few acres wide. See AR 4234 (only 123 of the 958 openings studied in the Environmental Assessment were more than 5 acres wide). In addition, the project has a defined temporal scope. Under the Forest Service's decision, the openings are scheduled to be maintained only once over the course of five years. The decision does not address the future management of the openings. Moreover, there is nothing about maintaining the openings that will necessarily restrict future management decisions. Compare Block, 690 F.2d at 762 ("Future decisions concerning these areas will be constrained by this choice."). Once mowed or burned, the openings may be left to grow back naturally or may be subject to further management by the Forest Service. Thus, the decision is not "irreversible and irretrievable."
The Forest Service adequately addressed relevant site-specific concerns during the environmental assessment process. Again, plaintiffs have not articulated the manner in which they believe the Forest Service failed to consider site-specific concerns. Plaintiffs broadly assert that the Forest Service "ignored" site-specific information from "resource specialists." Specifically, however, they cite only the example of comments by Hedge. Plaintiffs allege that the Forest Service failed to address most of Hedge's site-specific comments. The court disagrees. The Forest Service responded to Hedge's detailed letter, which it acknowledged as "very site specific," with its own detailed letter. The Forest Service addressed each general issue that Hedge raised and provided additional site-specific information. AR 3491-94.
7. Length of Environmental Assessment
Finally, plaintiffs also argue that the very size of the Environmental Assessment shows that a full EIS was needed. The Environmental Assessment for the Forest Openings Project is 31 pages long and includes about 60 pages of appendices. Plaintiffs cite the CEQ "40 Questions" which state: "While the regulations do not contain page limits for EAs, the Council has generally advised agencies to keep the length of EAs to not more than approximately 10-15 pages. . . . In most cases, however a lengthy EA indicates that an EIS is needed." Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act regulations, 46 Fed. Reg. 18026, 18037 (Mar. 3, 1981).
The length of the Environmental Assessment does not indicate that an EIS is necessary in this case. As the Forest Service points out, the CEQ 40 Questions are not treated as controlling authority. See, e.g., Friends of the Earth v. Hintz, 800 F.2d 822, 837 n. 15 (9th Cir. 1986) (citing cases). Even if they were, the 31- page document does not raise questions about the appropriateness of the Environmental Assessment in light of the number of issues raised in the scoping process and the number of public comments received. The Environmental Assessment in this case is considerably shorter than the documents in cases cited by plaintiffs where the courts concluded an EIS was necessary. Although courts have considered the length of an environmental assessment, that length is significant only in relationship to the overall magnitude of the proposal.
None of the cases on which plaintiffs rely held that an EIS was required solely because of the length of the environmental assessment. See Curry v. United States Forest Service, 988 F. Supp. 541, 551-52 (W.D.Pa. 1997) (49-page environmental assessment with 349-page appendix undermined decision not to prepare EIS for proposed timber sales on 5,000 acres which would involve logging, herbicide use, fencing, and road construction); National Audubon Soc'y v. Hoffman, 917 F. Supp. 280, 287 (D.Vt. 1995), aff'd in relevant part, 132 F.3d 7 (2d Cir. 1997) (magnitude of proposals set forth in more than 65 pages long environmental assessment undermined agency's contention that proposal to clear-cut 300 acres, with an admitted intrusion into bear and bird habitat, was not significant). See also Sierra Club v. Marsh, 769 F.2d 868, 874 (1st Cir. 1985) (commenting that length of environmental assessment does not raise presumption one way or the other); Hoosier Environmental Council, 105 F. Supp.2d at 998 (rejecting argument that the length of the environmental assessment demonstrated need for EIS). Here, the length of the Environmental Assessment adds nothing to plaintiffs' NEPA challenge to the forest openings maintenance project.
Plaintiffs' argument that the Forest Service is collaterally estopped from taking the position that the size of the Environmental Assessment does not demonstrate a need for an EIS is misguided. The relevant issue before the court in Curry, 988 F. Supp. 541, was whether the environmental assessment prepared for the "Mortality II Project" in the Allegheny National Forest demonstrated that an EIS was required. This case obviously does not involve that issue, so there is no estoppel. Unless the issues involved are identical, collateral estoppel does not come into play. See discussion, supra, n. 21.
In sum, plaintiffs' challenge under NEPA is not persuasive on any grounds presented to the court. Defendants are entitled to summary judgment on the NEPA claim.
B. National Forest Management Act
Plaintiffs also allege that the Forest Service has violated the NFMA, which in contrast to NEPA's procedural rules, provides some substantive guidance for forest management. Specifically, plaintiffs contend that the Forest Service has failed to collect population data for "management indicator species" and to establish population objectives for "sensitive species."
As noted above, among other things, the NFMA requires the Forest Service to prepare a land and resource management plan for each national forest. The plans must fulfill the Forest Service mandate to "provide for multiple use and sustained yield . . . includ[ing] coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e). Forest plans also must "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." 16 U.S.C. § 1604(g)(3)(B). To that end, and relevant here, NFMA regulations require that "[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 36 C.F.R. § 219 .19 (1999).
Unless otherwise indicated, all citations to NFMA regulations in this entry refer to the regulations in effect at the time of the Forest Service's final decision regarding the forest openings maintenance project on October 1, 1999. The Forest Service substantially revised 36 C.F.R. Parts 217 and 219 in its Final Rule which was issued and became effective on November 9, 2000. See 65 Fed. Reg. 67514 (Nov. 9, 2000). According to the Forest Service, the Final Rule "reaffirms sustainability as the overall goal for National Forest System planning and management; establishes requirements for the implementation, monitoring, evaluation, amendment, and revision of land and resource management plans; and guides the selection and implementation of site-specific actions." The goals of the Final Rule were to "simplify, clarify, and otherwise improve the planning process; to reduce burdensome and costly procedural requirements; to strengthen and clarify the role of science in planning, and to strengthen collaborative relationships with the public and other government entities." The Final Rule does not apply retroactively to the Forest Service's final decision on the forest openings maintenance project. See id. at 67566 ("no retroactive effect is given to this rule").
To estimate the effects of management decisions on fish and wildlife populations, the Forest Service must select certain species as "management indicator species." 36 C.F.R. § 219 .19(a)(1). Species are selected as management indicator species because their population changes are believed to indicate the effects of management activities. Id. See Sierra Club v. Marita, 46 F.3d at 620; see also Sierra Club v. Martin, 168 F.3d 1, 7 (11th Cir. 1999) ("MIS are proxies used to measure the effects of management strategies on Forest diversity."); Inland Empire, 88 F.3d 754, 762 n. 11 ("A species chosen as a management indicator species is used as a bellwether — a class representative, if you will — for the other species that have the same special habitat needs or population characteristics.").
Once an indicator species is selected, the Forest Service must evaluate planning alternatives for projects that affect that species "in terms of both amount and quality of habitat and of animal population trends of the management indicator species." 36 C.F.R. § 219 .19(a)(2). In addition, NFMA regulations provide that population trends of the management indicator species "will be monitored and relationships to habitat changes determined," 36 C.F.R. § 219 .19(a)(6), and that "inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition." 36 C.F.R. § 219.26. See also 1909.15 Environmental Policy and Procedures Handbook § 53, 57 Fed. Reg. 43180, 43212 (Sept. 18, 1992) (Forest Service must comply with monitoring requirements in forest plans and may decide to conduct additional monitoring).
Plaintiffs emphasize that, in addition to the obligations the regulations impose on the Forest Service with respect to management indicator species, the Forest Service Manual (Manual or FSM) establishes objectives for "sensitive species." Sensitive species are plant and animal species identified by a Regional Forester for which population viability is a concern as evidenced by downward trends in population numbers or density, or by a decreasing or limited habitat. FSM 2670.5 (19). The Manual states that sensitive species "must receive special management emphasis to ensure their viability and to preclude trends toward endangerment that would result in the need for Federal listing. There must be no impacts to sensitive species without an analysis of the significance of adverse effects on the populations, its habitat, and on the viability of the species as a whole." FSM 2672.1.
The Forest Service Manual, or at least relevant excerpts, should have been provided to the court. See Local Rule 7.1(b). The court has referred to the on-line version of the relevant sections of the Manual available at www.fs.fed.us/im/directives/fsm. Plaintiffs argue that the Manual is binding on the Forest Service, citing Rhodes, in which the Seventh Circuit concluded that the Forest Service Environmental Handbook had the same effect as other agency regulations because it was published in the Federal Register and was subject to public review and comment. 153 F.3d at 788. The Forest Service contends that the Manual merely provides non-binding "guidance," which is essentially the same position rejected in Rhodes. Here, the court need not decide whether the Manual is binding on the Forest Service. As discussed above, even if the sections on which plaintiffs rely had the same force as other agency regulations, the plaintiffs have not shown that the Forest Service's final decision to implement the forest openings maintenance project was arbitrary and capricious in light of the general standards announced in the Manual.
The Manual also includes duties with respect to sensitive species in its broadly-worded lists of the duties of Regional Foresters, Forest Supervisors, and District Rangers. See FSM 2670.44 (Regional Foresters: "recommend research needs for endangered, threatened, proposed, and sensitive species"); FSM 2670.45 (Forest Supervisors: "coordinate Forest programs with . . . individuals concerned with the conservation of threatened, endangered, proposed, and sensitive species); FSM 2670.46 (District Rangers: "identify, protect, and manage habitat necessary to meet sensitive species objectives.")
The Plan addresses the Forest Service's obligations with respect to management indicator and sensitive species in the "Monitoring and Evaluation Program" for the Forest. Plan, 5-4 to 5-7. Under that program, the Forest Service must "identify trends of populations of management indicator species and their relationship to habitat changes" Id. at 5-5. In addition, the Forest Service must "monitor effects of management on populations of sensitive plant and animal species." Id. The program indicates the frequency for these monitoring activities as "annual/3 years" for management indicator species and "annual/5 years" for sensitive species. The Forest Service has rated the "desired precision, reliability" of the monitoring of management indicator and sensitive species as "moderate." Id.
Plaintiffs contend that the Forest Service has violated the NFMA by violating 36 C.F.R. § 219 .19 219.26 by not monitoring management indicator and sensitive species adequately. Because the NFMA does not create a private right of action, plaintiffs' claim must be analyzed under the APA. See Sierra Club v. Marita, 46 F.3d at 610 n. 3; accord, Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) ( en banc); Ecology Center, Inc. v. United States Forest Service, 192 F.3d 922, 924-25 (9th Cir 1999). Thus, the court considers only whether the forest openings maintenance project, the final agency action at issue, was arbitrary and capricious in light of applicable NFMA standards. Accordingly, the Forest Service's decision to implement the forest openings maintenance project must be upheld if the record shows that the Forest Service took a hard look at relevant NFMA issues in making its decision. See Kleppe, 427 U.S. at 410 n. 21.
Plaintiffs' broad-based challenge to the monitoring practices announced in the Plan and related documents is not justiciable in this action. "[T]he NFMA does not provide for any public participation requirements in the conduct of monitoring, and without such a mandate the [plaintiff] cannot demand general judicial review of day-to-day operations." Ecology Center, 192 F.3d at 925-26 (internal quotations omitted) (affirming dismissal for lack of subject matter jurisdiction over challenge to Forest Service's failure to monitor resources where plaintiff did not challenge a final agency action), citing Lujan, 497 U.S. at 899; see also Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1153-54 (9th Cir. 1998) (considering NFMA monitoring challenge in connection with proposed timber sale); Sierra Club v. Peterson, 228 F.3d at 565-70 (rejecting as non-justiciable plaintiffs' challenge to present and future timber sales under plan that district court found to violate NFMA monitoring standards, among other problems; on remand, claims were limited to specific, final agency actions).
This case is limited to the Forest Service's final decision to implement the forest openings maintenance project under the APA. Under Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, plaintiffs may not use this action as a vehicle to revisit the adequacy of the Plan's general monitoring provisions under the NFMA. In a decision rejecting NEPA and NFMA claims, the Seventh Circuit generally reviewed NFMA monitoring issues related to forest plans for the Shawnee National Forest without regard to any specific, final agency action in Sierra Club v. Marita, 46 F.3d at 610 ("The Sierra Club has challenged forest management plans rather than specific Service actions that more directly affect a forest. . . ."). However, the Supreme Court rejected that approach to NFMA claims in Ohio Forestry Ass'n, 523 U.S. at 732-37 (NFMA challenge to forest plan that provided for logging generally was not ripe where the Forest Service had not taken any final action to sell timber; lawfulness of plan would have to be considered later in relationship to specific actions). In contrast, the Supreme Court recognized that forest plans may be challenged under NEPA before any final agency action is taken under such a plan because a violation of NEPA's procedural safeguards "can never get any riper." Id. at 737. See also Heartwood, 230 F.3d at 952-53 (holding that plaintiffs' challenge to agency procedures for creating categorical exclusions under NEPA was ripe). The Supreme Court appears to have left a narrow opening for NFMA challenges to forest plans in the absence of final agency action where plaintiffs can show that the plan itself will result in immediate, concrete injury. See 523 U.S. at 738-39 (concluding that the plaintiffs in Ohio Forestry waived this argument by not raising it in the lower courts). Plaintiffs in this case make broad arguments about the infirmities of the Forest Service's monitoring practices but have not demonstrated any immediate concrete injury that will flow from such practices beyond the injury associated with the agency's final decision to implement the forest openings maintenance project.
The court concludes that the Forest Service did not act arbitrarily or capriciously with respect to its monitoring duties under the NFMA when it decided to implement the forest openings maintenance project. In reaching its final decision, the Forest Service considered the effects all three proposed management alternatives would have on threatened and endangered species and on management indicator species. AR 4245-54, 4275-86. In addition, the Forest Service considered the project's effects on threatened and sensitive species in its Biological Evaluation for the project, which it prepared to comply with the Forest Manual and the Plan. AR 2933-2940.
The administrative record shows that the Forest Service has relied on a variety of different types of data to determine management indicator species population trends and to monitor the effects of management decisions on sensitive species. As contemplated by the regulations, the Forest Service has gathered the data in coordination with the Indiana Department of Natural Resources Fish and Wildlife Division. See 36 C.F.R. § 219 .19(a)(6) ("This [MIS] monitoring will be done in cooperation with State fish and wildlife agencies, to the extent practicable."). The administrative record contains population information from the following sources: (1) the Indiana Nongame and Endangered Wildlife Program of Indiana Department of Natural Resources Atlas of Breeding Birds Of Indiana, AR 876; (2) archers' index of furbearing animal populations, AR 2297; (3) wild turkey hunter bag, AR 1194; (4) maps of transect survey routes on national forest lands, AR Tab E-148; (4) ruffed grouse survey, AR 1215, (5) woodcock survey, AR 2288; and (6) waterfowl surveys, AR 2112, 2115. The Forest Service says it did not yet have adequate population data to project population trends for fish, stream invertebrates, and cave invertebrates, Def. Br. at 28 n. 11, but it had conducted surveys that provide a baseline of information about population trends. AR 4281.
In addition to this population information, the Forest Service tracks habitat in the Forest using a database inventory of forest stand and vegetative type information. Tracking habitat generally allows the Forest Service to monitor the habitat available for management indicator species. The forest stand and vegetative-type database shows that very little of the Forest now provides early successional habitat. In analyzing the population trends of early successional habitat dependent management indicator species, the Forest Service determined that some of these species were experiencing population declines. See AR 4276-81 (woodcock, ruffed grouse, yellow-breasted chat); see also AR 1215 ("Primary cause for low [grouse] population levels is the long term decline resulting from advancing forest succession."). These species will benefit from the forest openings maintenance project, as will other species that use early successional habitat. Conversely, as the Forest Service has acknowledged, populations associated with mid- and late successional forest habitat likely would benefit from a decision not to maintain the forest openings. See, e.g., AR 4277 (openings maintenance will have a slightly negative effect on the pileated woodpecker, will be unfavorable for the acadian flycatcher, will be negative for the Louisiana waterthrush to the extent openings adjacent to streams are maintained). However, these species will not lose habitat because the openings in question already exist.
Regarding sensitive species, the Forest Service learned from the Indiana Natural Heritage Program that there was no record of any such species in any of the openings scheduled for maintenance. AR 2937. The Forest Service also relied on a 1992 biological evaluation for an earlier forest opening maintenance project for the Brownstown Ranger District. Id. That evaluation concluded that openings maintenance would result in minimal negative effects for the cerulean warbler and Kirtland's snake. (The same evaluation also found there would be minimal beneficial effects for Kirtland's snake.) Some of the openings or the forest adjacent to them may provide feeding or breeding habitat for these species. Id.
Plaintiffs essentially allege that the NFMA and its regulations, the Plan, and the Forest Service Manual required the Forest Service to inventory all management indicator and sensitive species before making a final decision on the forest openings maintenance project. However, none of these sources imposes such a specific requirement on the Forest Service.
The Seventh Circuit has acknowledged that the NFMA grants the Forest Service considerable discretion generally: "The drafters of the NFMA diversity regulations themselves recognized that diversity was a complex term and declined to adopt any particular means or methodology of providing for diversity." Sierra Club v. Marita, 46 F.3d at 620. In this context, the court approved the consideration of the effects of management decisions on habitat as one means of managing for diversity and monitoring management indicator species. The Forest Service had assumed that an increase in the diversity of habitats would increase the potential livelihood of diverse kinds of organisms. Id. at 616. The Forest Service surveyed vegetative diversity in the relevant planning areas and then assessed animal diversity based on that survey. The Forest Service then selected management indicator species for various habitat types and calculated the minimum viable population necessary to ensure to continued reproductive vitality of the species. Id. at 617. Factors involved in this calculation included a determination of population size, the spatial distribution across the forest needed to ensure fitness and resilience, and the kinds, amounts and pattern of habitats needed to support the population. Id. The court concluded that the Forest Service was entitled to use its own methodology unless it is irrational. Id. at 621.
The Seventh Circuit's unpublished decision in Sierra Club v. United States Dept. of Agriculture, 116 F.3d 1482 (table), 1997 WL 295308 (7th Cir. May 28, 1997) (remanding to the Forest Service for further consideration of monitoring issues under 36 C.F.R. § 219 .19) adds nothing to the court's analysis of plaintiffs' NFMA claim. First, the decision has no precedential value. Second, contrary to plaintiffs' assertion, Sierra Club v. United States Dept. of Agriculture has no preclusive effect on this case because it involved a challenge to the amended land and resource management plan for the Shawnee National Forest. See discussion, supra note 20 (discussing collateral estoppel). Third, Sierra Club v. United States Dept. of Agriculture is distinguishable in two important respects related to NFMA and monitoring issues. First, the court held the Forest Service to specific monitoring standards set forth in the forest plan which are not present here. See 1997 WL 295308, at *13 (specific species were to be monitored annually and the unit of measure would be "populations; Song/sight census; Point count. Road and trail census. Transect count."). Second, in its broad, pre- Ohio River Ass'n, review of the forest plan amendment, the court found the amendment's monitoring provisions insufficient because they did not make clear what type of monitoring would be conducted. Id. at *14. The court indicated that field surveys and/or updated estimates of the management indicator species populations would be adequate while theoretical "guesstimates" would not. As discussed above, this court limits its analysis to whether the Forest Service's decision to implement the forest openings maintenance project was arbitrary and capricious and not to a wholesale review of the Plan.
Similarly, in Inland Empire, 88 F.3d at 762-63, the Ninth Circuit found that the Forest Service complied with 36 C.F.R. § 219 by analyzing the effects of a proposed timber sale on habitats for sensitive species. See id. at 761, citing Sierra Club v. Marita, 845 F. Supp. 1317, 1331 (E.D.Wis. 1994), aff'd, 46 F.3d 606. The court rejected the plaintiffs' arguments that the Forest Service must assess population viability in terms of actual population size or population trends. Inland Empire, 88 F.3d at 761 n. 8.
Plaintiffs rely heavily on Sierra Club v. Martin, 168 F.3d 1, where the Eleventh Circuit held that the Forest Service violated the NFMA because it did not have adequate population data for sensitive species. Significantly, however, the court based its decision in part on the specific management requirements imposed by the forest plan itself. Id. at 5 ("While it is true that the regulations make no such demand [regarding population data], the Forest Plan explicitly does so."). The plan provided: "When adequate population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a [proposed, endangered, threatened, or sensitive species of plants and animals]." In addition, the court observed that the Forest Service had "no information at all in terms of many of the [sensitive] species." Id. The Martin court was concerned that the Forest Service had acknowledged that the proposed timber sales would destroy some sensitive species in the affected areas. Id. at 4.
In addition, the Eleventh Circuit disagreed with the Ninth Circuit's conclusion in Inland Empire that the Forest Service could use habitat information as a means of complying with the NEPA regulations' monitoring requirements. Id. at 7 n. 10. The Sierra Club v. Martin court construed the plaintiffs' action related to a proposed timber sale as broad challenge to the monitoring provisions of the plan. See id. at 6.
Here, under Sierra Club v. Marita and Inland Empire, the court finds that the Forest Service did not act arbitrarily or capriciously in relying on habitat and survey information about management indicator and species information to monitor the effects of the forest openings management project on those species. In addition, plaintiffs have not identified any language in the Plan that specifically requires the Forest Service to inventory the populations of management indicator or sensitive species before taking a site-specific action. Instead, the Plan more generally requires only that the Forest Service (1) "identify trends of populations of management indicator species and their relationship to habitat changes"; and (2) "monitor effects of management" on populations of sensitive species. Plan, 5-4 to 5-7. In the Environmental Assessment and the Biological Evaluation, the Forest Service adequately satisfied these requirements to the extent they relate to the forest openings maintenance project.
It is unclear what specific identification and monitoring activities have been performed to satisfy the Plan's frequency requirement of "annual/3 years" (for management indicator species) and "annual/5 years" (for sensitive species). However, the administrative record contains information for the several years leading up to the final decision for various of the relevant species. The quantity and quality of this information for various species is not consistent. With respect to sensitive species, the Forest Service relied in part on the 1992 Biological Evaluation for an earlier, smaller forest openings maintenance project. Although plaintiffs may be right that it would have been a better policy for the Forest Service to obtain more recent information on species that may be "minimally negatively affected" by the project, the court cannot say that it was arbitrary and capricious for the Forest Service not to do so. Cf. Inland Empire, 88 F.3d at 761 n. 8 ("We do not mean to suggest, however, that Plaintiffs' suggestions are in any way improper. Indeed, we would encourage such analyses and hold only that they are not required."). Plaintiffs point to nothing in the record that suggests that it was unreasonable for the Forest Service to use the 1992 Biological Evaluation as a source.
Conclusion
The Forest Service complied with the NEPA and NFMA when it made its final decision to implement the forest openings maintenance project. The administrative record demonstrates that the agency followed required procedures under NEPA and considered legally relevant factors under the NFMA in reaching its decision. The Forest Service's summary judgment motion is therefore GRANTED, plaintiffs' summary judgment motion is DENIED, and plaintiffs' claims will be dismissed on the merits. Final judgment shall be entered accordingly.