John McGuinness v. United States Forest Service ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2406
JOHN MCGUINNESS; DIANE ELLER; JESS V. CLAMPITT, JR.; RONNIE
CLAMPITT; EARLENE VON DER OSTEN; STEPHEN ZUCKER; NANCY
MOSTELLER; JOHN MAKAR; AURELIA STONE,
Plaintiffs – Appellants,
and
ROBERT VON DER OSTEN,
Plaintiff,
v.
UNITED STATES FOREST SERVICE,
Defendant – Appellee.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Max O. Cogburn, Jr., District Judge. (1:15-cv-00072-MOC-DLH)
Argued: May 10, 2018 Decided: July 26, 2018
Before TRAXLER and DIAZ, Circuit Judges, and Richard M. GERGEL, United States
District Judge for the District of South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Perrin Wells de Jong, PERRIN DE JONG, ATTORNEY AT LAW,
Asheville, North Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
David H. Becker, LAW OFFICE OF DAVID H. BECKER, LLC, Portland, Oregon, for
Appellants. Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following approximately 11 years of environmental study and public comment,
the United States Forest Service authorized the development of three to five acres of the
Nantahala National Forest in Clay County, North Carolina, for a shooting range.
Appellants are individual residents of Clay County who opposed this project and brought
an action challenging the Forest Service’s actions under the National Environmental
Policy Act (“NEPA”), see 42 U.S.C. § 4321 et seq., and seeking declaratory and
injunctive relief. The district court granted the Forest Service’s motion for summary
judgment and dismissed the action. Because the Forest Service’s decision to approve the
shooting range was not arbitrary or capricious, we affirm.
I.
In late 2001, Tusquittee District Ranger Charles Miller of the Forest Service began
gauging local interest in the construction of a shooting range in an area of the Nantahala
National Forest located in Clay County, North Carolina. In January 2002, a group of
Clay County residents formed the Clay County Sports Club (“CCSC”) for the purpose of
building, operating and maintaining a recreational shooting range on property situated in
the Nantahala National Forest.
In September 2002, the Forest Service solicited public input on a proposed
shooting range project to be located in Clay County near Birch Cove off Nelson Ridge
Road in the Nantahala Forest. Public reaction from local individual residents, interest
groups and governing bodies was extensive and mixed. The North Carolina Wildlife
Resources Commission, for example, supported the project, which it believed would
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“benefit the public and environment by providing a controlled shooting environment.”
J.A. 60. Numerous individual Clay County residents expressed their support for the
proposed Nelson Road project, as it afforded local enthusiasts an alternative to the closest
existing shooting range, which was situated in Georgia, and the availability of private
land for construction of a shooting range was “diminishing.” J.A. 61. Other local
residents expressed opposition—either to the general idea of a shooting range or to the
proposed location—due to numerous concerns, including “target range noise,” “impact . .
. [on] property values,” traffic and “closeness to population.” J.A. 71.
In May 2005, having taken note of the concerns raised by the public, the Forest
Service proposed three alternative sites for the shooting range, including one in the
Chestnut Branch area. In seeking public comment on this proposal, the Forest Service
indicated that it would prepare an Environmental Assessment (“EA”) to consider the
environmental effects of a shooting range at each of the four sites, including “such factors
as public safety, potential noise from gunfire, heritage resource sites, and threatened or
endangered plant and animal species.” J.A. 106. Once again, public reaction was mixed.
Notably, even some of those expressing opposition recognized the need for “a safe
shooting area as [the] county population grows,” J.A. 115, and simply objected to one of
the proposed locations.
In October 2007, the Forest Service asked for public comment on one final
potential location for the shooting range near upper Perry Creek, approximately 1,000
feet below and 2,500 feet west of Clay County’s most popular trail for hiking and
horseback riding, the Chunky Gal Trail. As before, reaction was mixed. Both those in
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favor and those opposed acknowledged a safe area to shoot was “badly needed.” J.A.
124. However, a number of opponents, in addition to raising continued concerns about
noise and traffic, asserted that there were shooting ranges available that eliminated the
need for one in Clay County.
In April 2008, the Forest Service, in conjunction with other agencies, conducted a
noise impact test (“2008 sound test”) at the Perry Creek site because public comments
had identified noise as a substantial concern with regard to that location. The test was
conducted on a “clear, still day” in order “to maximize the potential for sound to carry as
far as possible.” J.A. 535. The Forest Service placed a marksman at the proposed site
and instructed him to “fire a total of ten shots with two firearms . . . considered [to be]
among the loudest of the commercially available firearms likely to be encountered at a
Forest Service shooting range.” Id. Members of the test team were situated on “nearby
parcels of private land.” Id. Only the person located closest to the proposed site was able
to hear any of the test shots, and even then, he could only “hear a very faint report from
some, but not all, of the test shots.” Id.
In October 2008, the Forest Service and the CCSC entered into an agreement
whereby the CCSC agreed “to assist with the cost of review and comment” for, among
other things, “the Environmental Assessment for the Clay County Shooting Range
proposal.” J.A. 300. The site had not been predetermined at this time; however, the
Forest Service had narrowed the possibilities to two locations—Perry Creek and Chestnut
Branch.
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In May 2010, the Forest Service issued an extensive EA for the Clay County
shooting range project and published notice in the local newspapers formally inviting
public review and comment. As before, the Forest Service received mixed input from the
public. Many of the supporters preferred the Perry Creek site because it was further than
Chestnut Branch from residential areas and it was oriented such that users would fire
toward the side of a mountain instead of a ridge, making it safer.
Shortly after issuing the 2010 EA, the Forest Service retained Dr. Paul Schomer of
the Acoustical Society of America to perform a sound assessment of the noise reaching
private property near both of the proposed sites. Schomer was also asked to estimate the
noise level that would be created along the sections of the Chunky Gal Trail running by
both sites. Schomer was informed that no matter which site was selected, the shooting
range would be covered by a roof and no large-caliber rounds, shotguns or automatic
weapons would be allowed. Schomer performed his assessment using a “worst case
hour” scenario simulating heavy use and determined that “[t]he Chunky Gal Trail will
experience clearly noticeable, possibly bothersome gunfire noise from either of the
proposed ranges.” J.A. 630. Schomer recommended the Perry Creek location, however,
“because the gunfire noise on Chunky Gal trail will drop off quickly as one moves in
either direction away from the point of closest approach of the Chunky Gal trail to the
Perry Creek site.” Id. Additionally, Schomer found that “no private residences are
impacted” by shooting at the Perry Creek location. Id.
In October 2010, the Forest Service issued a Decision Notice approving the Perry
Creek location for construction of a firing range. After District Ranger Steve Lohr met
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with a group of community members (including Appellants) who had objected to the
Decision Notice, the Forest Service withdrew the notice in order to include “additional
analysis on the topics of traffic, dust, and noise.” J.A. 482.
In March 2012, the Department of Forestry & Geology at the University of the
South submitted a report to the Forest Service regarding the dust that would be produced
as a result of increased traffic on Nelson Ridge Road by users of the Perry Creek site.
According to the report, “any proposed increase in traffic . . . will not raise the 24 hour
average . . . above the federal standard,” provided “the total number of cars remains
below 500 and their average speed remains less than 55 mph.” J.A. 660.
Also in March 2012, the Forest Service conducted another sound test (“2012
sound test”) at the Perry Creek site in response to complaints about the adequacy or
accuracy of the 2008 sound test. During the second test, local residents, Forest Service
employees, and CCSC members were positioned at seven private property locations
selected by the residents to record any audible gunfire during the test. The Forest Service
attempted “[t]o simulate the heaviest possible use” by having eight people shoot pistols
and rifles during three one-minute periods, producing a “rate of fire . . . between 60 to 80
rounds per minute.” J.A. 537. At four of the locations, no sounds were detected.
Listeners at two of the locations reported hearing gunfire during one of the three live-fire
periods. And, at the other spot, listeners reported hearing gunfire during all three of the
live-fire periods, but described the noise level as “louder than low conversational speech”
but “not louder than normal conversational speech.” Id. Finally, during this same test,
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volunteers were placed on the Chunky Gal Trail near the Perry Creek site and reported
hearing gunfire that was “almost as loud as shouting.” J.A. 539.
In August 2012, the Forest Service issued a revised EA for the Clay County firing
range project and requested public comments. As in each previous instance, the Forest
Service received public input both generally in support and in opposition to the proposed
construction of a firing range. Supporters and opponents offered a few additional
considerations as well. The Clay County Board of Commissioners submitted another
letter in support of the project, but expressed a preference for the Perry Creek site
because it afforded law enforcement officers a safe and convenient location to “certify/re-
certify with their firearms,” J.A. 451, as well as a safe location for Clay County school
shooting teams to practice and compete. On the other hand, a local realtor’s objection to
the project was based in part on her anticipated obligation “to disclose the possibility of
gun fire reports to every client looking to buy in the Tusquittee Valley,” which would
“depreciate the land values.” J.A. 456. Finally, the Forest Service received a report from
Merck & Hill Consultants critiquing the 2012 sound test which had been included in the
revised EA. The Merck report noted that the test did not sufficiently account for
meteorological data or topography or consider that “the psychological and physiological
responses to gunfire sounds may cause greater stress than exposure to vocal sounds” and
would therefore “likely be more bothersome” than vocal sounds at the same level. J.A.
1054. The Merck report concluded that “more thorough evaluations over a longer period
of time and under differing seasonal and meteorological conditions” were needed to
meaningfully assess the sound impact of a firing range. J.A. 1054-55.
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In June 2013, the Forest Service issued a second revised EA. In reiterating the
need for the construction of a shooting range, the second revised EA noted that, because
there is no suitable and convenient firing range in or near Clay County, “local residents
frequently use privately owned lands in Clay County for target practice,” potentially
creating “unsafe conditions.” J.A. 478. In light of the dramatic population growth in
Clay County and the “corresponding residential development,” the second revised EA
stated that “a safe, convenient public range could reduce dispersed shooting activity in
the county, improve public safety, and reduce the negative impacts of dispersed shooting
to physical, biological and social resources.” Id.
The second revised EA identified the key issues developed through the public
comment process, which included: (1) whether “the proposed shooting range at Perry
Creek would produce a constant or continuous sound of gunshot” and cause a “persistent
impact to residents in the Upper Tusquittee Valley,” J.A. 482; (2) whether “the sound of
gunfire from the range would impact the solitude that is sought by Chunky Gal trail
hikers,” id.; (3) whether, if the Perry Creek site were to be selected, “the increase in
traffic on Nelson Ridge Road would exceed the capacity of the road to safely handle the
number of cars using it,” id.; and (4) whether, were the Perry Creek location selected,
“the increase in traffic on Nelson Ridge Road would generate airborne dust levels . . . that
exceed [EPA] standards,” J.A. 482-83. The second revised EA highlighted these issues
throughout the report as it addressed the consequences of locating a firing range at either
the Perry Creek or the Chestnut Branch sites on natural resources (including impact on
soils, water quality, air quality, cultural resources, and inventoried roadless areas); on
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biological resources (including threatened or endangered species, special habitats, and
wildlife); and on the human environment (including noise, recreational resources, scenery
effects, vehicular traffic and health and safety).
The second revised EA noted that “[s]ound management is an important
consideration at both of the proposed sites” and that several things could be done to
reduce noise, including imposing “[r]estrictions on the number of users as well as the
type, size, and caliber of firearms”; orienting firing lines “to direct shooting away from
soundsensitive areas”; incorporating engineering features such as “[b]erms and non-
porous walls [that could] serve to deflect and absorb sound”; and adding new or relying
on existing vegetation, such as evergreens which “retain sound-absorbing foliage year-
round.” J.A. 488. The second revised EA then summarized at length the three sound
tests the Forest Service had conducted. With respect to the Perry Creek site, the second
revised EA indicated that “[t]he project would produce marginal direct” and “few indirect
effects to local residents due to noise,” but that “[h]ikers on segments of the Chunky Gal
Trail . . . would experience direct impacts from gunfire noise” that “would approximate
the sound of very loud conversational speech (almost as loud as shouting) during
infrequent periods of very heavy use.” J.A. 539. The second revised EA estimated “that
between two and three miles of the Chunky Gal trail may experience sounds from the
shooting range,” which constituted approximated about “9.5% to 14.3% of the total trail
miles under this proposal.” Id. As for the overall effect of the noise created by the
proposed shooting range at Perry Creek, the Forest Service stated that the gunfire would
add to a variety of existing “human-induced sounds in the area, including vehicular
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traffic, domesticated animals, small engine sources (e.g. tractors, lawn mowers, leaf
blowers, tillers, string-trimmers), and overflying aircraft.” Id.
With regard to traffic, both proposed range sites would be “accessed by single lane
gravel roads,” and “traffic safety, both to those using the roads, and in the case of the
proposed Perry Creek site, to residents who use Nelson Ridge Road to access their
property,” was an important issue. J.A. 546. To assess traffic that would be generated by
a Perry Creek shooting range, the Forest Service installed two traffic counters in 2011
and determined “that daily use of Nelson Ridge Road would increase between six and
eight vehicles per day.” J.A. 549. The Forest Service concluded that, “[b]ased on the
current and projected traffic figures, . . . Nelson Ridge Road can safely absorb range-
related vehicular use in addition to current use.” Id.
Finally, the second revised EA indicated that “the Forest Service partnered with a
nearby university to conduct independent research into airborne dust.” J.A. 552. It found
that dust would not pose a significant problem:
Airborne road dust would be generated from gravel roads and parking areas
from vehicles accessing the range. While road dust is a nuisance,
independent research conducted for this project on airborne dust indicates
that the fine particulates would not be a human health issue given the
projected vehicular traffic loads and driving speeds.
J.A. 493.
In June 2013, the Forest Service issued a Decision Notice and Finding of No
Significant Impact (“FONSI”), dated June 3, 2013, which approved of and authorized the
construction of a shooting range at the Perry Creek site. The Forest Service subsequently
withdrew this Decision Notice, citing “a procedural error regarding publication of the
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legal notices.” J.A. 738. In September 2013, the Forest Service issued its fourth and
final revised EA (“September 2013 EA”), which was essentially identical to the previous
EA but included a more thorough analysis and explanation of the “No Action” alternative
in each analytical section. J.A. 754. And, on September 27, 2013, District Ranger
Lauren Stull issued a final Decision Notice and FONSI, authorizing the construction of a
shooting range at the Perry Creek site. Ranger Stull explained that, “[b]ased upon [her]
review of the alternatives, [she] decided to select . . . [the] Perry Creek Location of the
Clay County Shooting Range Project Environmental Assessment (EA)” to “develop
approximately three to five acres off Passmore Spur Road near Perry Creek as a
recreational shooting range.” J.A. 942. The Decision Notice explained that “[t]he
purpose for the proposal . . . is to provide a safe and environmentally sound and secure
public shooting facility to serve the local community of Clay County, North Carolina,”
and “to address the lack of a facility that is designed to minimize the impacts to physical,
biological and social resources.” J.A. 943.
In explaining why she selected the Perry Creek alternative over the No Action
alternative, Ranger Stull stated in pertinent part as follows:
Under [the “No Action”] Alternative . . . , the Forest Service would not
establish a shooting range in Clay County and . . . there would be no
designated facility . . . to provide the public with the opportunity for
recreational shooting. I did not select this alternative because it would not
have met the purpose and need to provide a safe and environmentally sound
and secure public shooting facility designed to contain lead and noise as
described in . . . the [September 2013] EA.
J.A. 944.
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As for why she selected the Perry Creek alternative over the Chestnut Branch
alternative, Ranger Stull stated:
● Unlike the Perry Creek location . . . , the topography at the Chestnut
Branch location does not provide a supplemental natural back stop,
increasing the potential for bullets to leave the range site [as it] is
positioned at an elevation of approximately 4000 feet and is located on top
of a natural topographic shelf which does not provide an adequate natural
back stop behind the proposed range. . . .
● The sound test conducted by Schomer and Associates in 2010 . . . showed
that noise from the range would impact residences in the Rainbow Springs
area.
● The facility at [Chestnut Branch] would have offered four to five
shooting lanes, fewer than could be established [at Perry Creek].
Id.
By contrast, the Perry Creek location more adequately addressed the key issues
according to Ranger Stull:
● [The Perry Creek location] is positioned at approximately 2,800 feet in
elevation and the existing topography allows for a natural backstop beyond
any constructed backstops with an increase in elevation of 1,000 feet above
the range site. This natural backstop surrounds the proposed shooting
direction and covers approximately 180 degrees which encompasses the
trajectory safety zone.
● Results from three sound tests . . . show minimal nuisance noise from the
Perry Creek location, even in the absence of sound management features
[that] . . . [t]he Forest Service will implement[, including] a combination of
operational, site, engineering, and vegetation approaches to manage noise
from the facility.
● Results from traffic studies for [Perry Creek] show that current and
projected range use is consistent with [applicable standards] for the roads
that access the range site. The Forest Service will implement traffic
calming measures as a safety precaution for residents along Nelson Ridge
Road and forest users.
● Results from a dust analysis for [Perry Creek] shows that the projected
use will not generate hazardous amounts of fine particulates in road dust
from vehicles accessing and exiting the range site.
J.A. 943.
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Ranger Stull formally determined that the project “will not have a significant
effect on the quality of the human environment considering the context and intensity of
Impacts,” J.A. 944, precluding the need for an environmental impact statement (“EIS”).
Appellants filed an administrative appeal, arguing that (1) the EA did not consider
“[a]n [a]dequate [r]ange [o]f [a]lternatives,” J.A. 1066; (2) the study of noise “[i]mpacts
[t]o the Chunky Gal Trail” was flawed, J.A. 1068; (3) the effects of the project on the
Chunky Gal Trail had not been adequately considered; (4) the study of “[t]raffic
[i]mpacts [t]o Nelson Ridge Road” was insufficient, J.A. 1069; and (5) the description of
the implementation of the project was insufficient. The Appeal Reviewing Officer issued
a written decision rejecting each of these contentions and affirming the approval of the
Clay County shooting range project.
II.
Appellants filed this action for declaratory and injunctive relief, seeking a
declaration that the Forest Service, in issuing the Decision Notice, FONSI and September
2013 EA, acted in a manner that was arbitrary and capricious, and a judgment vacating
the decision authorizing the shooting range. Appellants alleged specifically that the
Forest Service violated NEPA by failing to “rigorously explore and objectively evaluate
the full range of reasonable alternatives, including the no action alternative, before
issuing the Decision Notice,” J.A. 1150; that the Forest Service violated NEPA by failing
to prepare an EIS; and that the Forest Service violated NEPA by failing to prepare a
Decision Notice, a FONSI or an EA that conformed with NEPA. Appellants also alleged
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that the Decision Notice and FONSI violated North Carolina state law; however,
Appellants do not challenge the dismissal of this claim on appeal.
The parties filed cross motions for summary judgment. The district court granted
the Forest Service’s motion, concluding that, as a matter of law, the agency’s “‘hard
look’” at “the potential environmental impact of the project” passed muster under the
arbitrary and capricious standard. J.A. 1367. Additionally, the district court rejected
Appellants’ argument that an EIS was required, explaining that “[i]nasmuch as the
administrative decision to issue an EA rather than an [EIS] was based on extensive
scientific studies, the decision was not arbitrary and capricious . . . as the agency
provided an explanation of its decision that included a rational connection between the
facts found through those studies and the choice it ultimately made.” J.A. 1369. The
district court rejected the Appellants’ contention “that the premise of the project was
faulty as there was no need to build the shooting range inasmuch as a private shooting
range existed in an adjoining county in the State of Georgia” and therefore led the Forest
Service to improperly reject the “‘no-build’” alternative “out-of-hand.” J.A. 1369-70. In
addressing this argument, the district court noted that public comment demonstrated that
“even if a private range was available in an adjoining county, residents were not using it,
opting instead to discharge firearms on private and public lands” and that “shooting in
uncontrolled settings increased the likelihood of accidents and raised the risk to others.”
J.A. 1370.
Finally, the district court found Appellants’ critique of the agency’s analysis of the
potential effect of the project on noise level, traffic, dust and property values to be
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unconvincing. With respect to noise, the court observed that the agency’s evaluation,
which included “several sound tests,” constituted a “‘hard look’ at the data before it.”
J.A. 1371. As for the traffic, the district court noted that the Forest Service conducted
two studies upon which it reasonably reached the conclusion that planned “traffic
calming measures” would be sufficient to address increased traffic. J.A. 1372. The
district court noted, moreover, that the Forest Service “conducted a dust analysis using
the atmospheric dispersion modeling system” and determined “that the projected
increased traffic caused by the shooting range would not generate enough dust to exceed”
standards established by the EPA. Id. The district court was “satisfied” that this
constituted a “hard look” at the evidence regarding dust. And, as for the agency’s failure
to consider the effect of the project on local property values, the district court concluded
that “[p]roperty values are not an environmental impact, but instead an economic
consequence,” and thus the agency had not acted in an arbitrary and capricious manner in
this respect. J.A. 1374.
III.
A.
“NEPA sets forth a regulatory scheme for major federal actions that may
significantly affect the natural environment.” Nat’l Audubon Soc'y v. Dep’t of Navy, 422
F.3d 174, 184 (4th Cir. 2005). “NEPA is a procedural statute; it does not force an agency
to reach substantive, environment-friendly outcomes. Rather, NEPA simply requires that
the agency take a ‘hard look’ at environmental impacts before taking major actions.” Id.;
see Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir. 2009)
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(“Under NEPA, federal agencies must take a ‘hard look’ at the potential environmental
consequences of their actions.”). And, because NEPA is procedural in nature, “even
agency action with adverse environmental effects can be NEPA-compliant so long as the
agency has considered those effects and determined that competing policy values
outweigh those costs.” Aracoma Coal Co., 556 F.3d at 191. “NEPA merely prohibits
uninformed—rather than unwise—agency action.” Nat’l Audubon Soc’y, 422 F.3d at 184
(internal quotation marks omitted). Additionally, NEPA requires an agency “to
disseminate information that allows the public to participate in the decisionmaking
process.” Shenandoah Valley Network v. Capka, 669 F.3d 194, 196 (4th Cir. 2012)
We review claims asserting that an agency violated NEPA under the
Administrative Procedure Act (“APA”). See 5 U.S.C. § 701 et seq.; Capka, 669 F.3d at
196. Pursuant to the APA, “a court will set aside an agency action if it is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’” Ohio
Valley Envtl. Coal., Inc. v. United States Army Corps of Eng’rs, 828 F.3d 316, 321 (4th
Cir. 2016) (quoting 5 U.S.C. § 706(2)(A)). “In determining whether agency action was
arbitrary or capricious, [a] court examining the sufficiency of an agency’s environmental
analysis under NEPA must determine whether the agency has taken a ‘hard look’ at an
action’s environmental impacts.” Nat’l Audubon Soc’y, 422 F.3d at 185.
“Review under this standard is highly deferential, with a presumption in favor of
finding the agency action valid,” particularly “in matters involving not just simple
findings of fact but complex predictions based on special expertise.” Aracoma Coal Co.,
556 F.3d at 192. While deferential review in this context “does not turn judicial review
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into a rubber stamp,” neither does it permit judicial “second-guessing” of “substantive
decisions committed to the discretion of the agency.” Nat’l Audubon Soc’y, 422 F.3d at
185. Here, judicial review serves “primarily to educate the court so that it can understand
enough about the problem confronting the agency to comprehend the meaning of the
evidence relied upon and the evidence discarded; the questions addressed by the agency
and those bypassed; the choices open to the agency and those made.” Aracoma Coal Co.,
556 F.3d at 192-93 (internal quotation marks omitted). “Deference is due where the
agency has examined the relevant data and provided an explanation of its decision that
includes a rational connection between the facts found and the choice made.” Id. at 192
(internal quotation marks omitted). At bottom, “[i]n determining whether agency action
was arbitrary or capricious, the court must consider whether the agency considered the
relevant factors and whether a clear error of judgment was made.” Id.
B.
First, Appellants contend that the Forest Service violated NEPA by failing to
adequately compare the environmental effects of the No Action alternative with the
environmental effects of authorizing a shooting range at one of the proposed sites.
Appellants’ primary focus is on the noise effects of the project. In particular, Appellants
assert that the September 2013 EA lacks meaningful data with regard to the “quiet
conditions” that would exist near the proposed alternative sites if “no action were taken.”
Brief of Appellants at 33. Lacking information about existing conditions in the absence
of the proposed project, Appellants argue, the Forest Service and the public were
deprived of a meaningful basis for determining the environmental impacts of gunfire
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from the proposed shooting range sites, rendering the Forest Service’s decision to build
the Perry Creek shooting range arbitrary and capricious. We disagree.
NEPA requires that an agency considering a proposed action “study, develop, and
describe appropriate alternatives to recommended courses of action.” 42 U.S.C. §
4332(E). Under NEPA’s implementing regulations, the agency must consider a “no
action” or “‘no build’ alternative” when issuing an EIS. N.C. Wildlife Fed’n v. N.C.
Dep’t of Transp., 677 F.3d 596, 602, 603 (4th Cir. 2012); see 40 C.F.R. § 1502.14(d).
The Forest Service did not prepare an EIS in this case, concluding that its 175-page
September 2013 EA was sufficient to assess the environmental effects of the project.
Unlike an EIS, an EA is intended to be “a concise public document . . . that serves to . . .
[b]riefly provide sufficient evidence and analysis for determining whether to prepare an
[EIS] or a finding of no significant impact [(“FONSI”)].” 40 C.F.R. § 1508.9(a)(1).
Under the regulation applicable to EAs, there is no explicit directive that the agency
consider a “no action” alternative; an EA must simply include “brief discussions of the
need for the proposal, of alternatives as required by [42 U.S.C. § 4332(E)], of the
environmental impacts of the proposed action and alternatives, and a listing of agencies
and persons consulted.” 40 C.F.R. § 1508.9(b).
The September 2013 EA discusses at every step of its analysis, in a fairly detailed
manner, the need for the proposed shooting range and the environmental impacts of the
alternatives to the proposed shooting range, including the no build alternative. Most
significantly, the September 2013 EA describes existing noise levels in the vicinity of the
proposed shooting range sites, and provides a detailed description of the additional noise
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that would result from either of the proposed alternatives. With respect to existing noise
levels, the September 2013 EA states that “[c]urrent noise levels in the proposed
treatment areas,” in the absence of a shooting range, “are generated primarily by natural
sources, and include (but are not limited to) wind, flowing water, birds, insects (e.g.
cicadas, katydids), and thunder.” J.A. 805. The September 2013 EA further notes:
These ambient sounds vary in duration and intensity throughout the day,
ranging from noise equivalent to a whisper (gentle breezes) to louder than
yelling (nearby thunder). Natural ambient sounds in the treatment area also
have a seasonal component, with winter conditions resulting in the lowest
noise levels and spring and summer producing the most. While a
subjective assessment, for the purposes of this EA the sound levels at the
proposed treatment areas will be classified as being of predominantly low
intensity.
Id.
The Forest Service also included a table in the September 2013 EA summarizing
the results of the 2012 sound test, which described existing background ambient sounds
near the Perry Creek location such as wind chimes, wind in trees, roosters, traffic and
barking dogs. These noise levels ranged from “[l]ouder than a whisper” to “[l]ouder than
normal conversational speech.” J.A. 808. Finally, the September 2013 EA also
discussed the “[c]umulative impacts to local residents from noise” at the alternative
proposed sites, including all existing “human-induced sounds.” J.A. 809. At Perry
Creek, the existing sounds included “vehicular traffic, domesticated animals, small
engine sources (e.g. tractors, lawn mowers, leaf blowers, tillers, string-trimmers), and
overflying aircraft.” Id.
20
With this baseline description of existing ambient noise, the Forest Service
explained in detail, as previously described, the live-fire sound tests that were conducted,
and the Forest Service considered the impact of the two action alternatives on existing
noise levels. At the Perry Creek site, “[h]ikers on segments of the Chunky Gal Trail . . .
would experience direct impacts from gunfire noise, with the greatest impacts at the
trail’s closest approach to the proposed facility,” at levels approximating “the sound of
nearby normal conversations” during heavy use of the shooting range and “the sound of
very loud conversational speech (almost as loud as shouting) during infrequent periods of
very heavy use.” J.A. 809. The September 2013 EA concluded, finally, that “[b]ecause
noise levels in the area are currently low, the cumulative impact to forest visitors in the
area would be the noise emanating from the shooting range. To diminish these effects,
the Forest Service would implement management actions to contain and reduce noise
emanating from the shooting range as needed.” J.A. 809-10.
The Forest Service’s consideration of the alternatives, including the No Action
alternative, was more than sufficient to satisfy the NEPA requirement that it “take a ‘hard
look’” at the effect of its actions on the existing noise level. Aracoma Coal Co., 556 F.3d
at 191. In considering the impact of the proposed alternatives on soils, water quality, air
quality, cultural and historical resources, roadless areas, biological resources, and the
human environment, the September 2013 EA addressed, in varying degrees of detail, the
No Action alternative. We conclude that the Forest Service took the requisite “hard look
at the potential environmental consequences of” its decision authorizing the proposed
shooting range. Id.
21
C.
Appellants next argue that the Forest Service violated NEPA by not issuing an
EIS. NEPA requires that federal agencies prepare an EIS only for “major Federal actions
significantly affecting the quality of the human environment.” Id. (quoting 42 U.S.C. §
4332(C)). “Significance,” in turn, “is determined by evaluating both the context of the
action and the intensity, or severity, of the impact.” Id. (emphasis added); see 40 C.F.R.
§ 1508.27. Among the considerations for evaluating intensity of the impact is “[t]he
degree to which the effects on the quality of the human environment are likely to be
highly controversial.” 40 C.F.R. § 1508.27(b)(4). When “it is not readily discernible
how significant the environmental effects of a proposed action will be, federal agencies
may prepare an [EA].” Aracoma Coal Co., 556 F.3d at 191; see 40 C.F.R. § 1501.4(b),
(c). One of the purposes of the more summary EA is to “[b]riefly provide sufficient
evidence and analysis for determining whether to prepare an [EIS] or a [FONSI].” 40
C.F.R. § 1508.9(a)(1).
Appellants argue that an EIS was required because the Forest Service’s finding
that gunfire on the human environment near the proposed Perry Creek shooting range
would have no significant impact is “highly controversial.” 40 C.F.R. § 1508.27(b)(4).
Appellants base their position on several claims. First, Appellants suggest that the
September 2013 EA fails to acknowledge the “startling effect” that gunshots can have on
human beings. Brief of Appellants at 14 (internal quotation marks omitted). Second,
Appellants dispute the Forest Service’s conclusion that the three sound tests show
minimal nuisance noise from the Perry Creek site for several reasons: that the 2008 and
22
2010 sound tests “had to be re-run due to public objections,” Brief of Appellants at 37;
that only the 2010 sound test was conducted by sound experts who in fact found that
users of the Chunky Gal Trail would experience potentially bothersome gunfire noise
from the Perry Creek site; that none of the tests measured the actual decibel levels of the
existing ambient sounds; that sound expert Merck disputed that the noise levels produced
by gunfire from the Perry Creek site were linked to the rate of fire; and that Merck opined
that a shooting range in the proposed locations might significantly degrade the existing,
natural auditory conditions. Appellants contend that the Forest Service’s FONSI runs
counter to the foregoing evidence, reflecting that a substantial dispute existed and that the
Forest Service was required to prepare an EIS to comprehensively address those auditory
effects.
We disagree. It is apparent from both the September 2013 EA and the Decision
Notice that the Forest Service did not act arbitrarily or capriciously in selecting the Perry
Creek alternative without first issuing an EIS. The agency carefully considered the noise
effects of its decision, noting that the shooting range would create additional low-level
noise for residents in the vicinity and that hikers on the Chunky Gal Trail would hear
gunfire and increased noise levels that would approximate loud conversational speech or
even shouting during very heavy shooting range use. In the Decision Notice, Ranger
Stull then specifically considered the regulatory factors for determining whether an EIS
was required. In particular, she found that “[t]he effects on the quality of the human
environment are not likely to be highly controversial” and that “the effects are not
23
uncertain, and do not involve unique or unknown risk,” as “[t]he Forest Service has
considerable experience with the types of activities to be implemented.” J.A. 945.
These are reasonable conclusions based on agency expertise to which we defer. In
this context, agency action is “likely to be highly controversial” when “a substantial
dispute exists as to the size, nature or effect of the major federal action.” Rucker v.
Willis, 484 F.2d 158, 162 (4th Cir. 1973) (internal quotation marks omitted). The general
effects of gunfire on the environment are clearly not uncertain or unknown. The sound of
a rifle being discharged is well-known to anyone in the Forest Service. And, assuming
the proposed project qualifies as a “major federal action,” there is no “substantial
dispute” regarding “the size, nature or effect” of the proposed project. Appellants nitpick
the results of the sound tests considered by the Forest Service, but mere opposition—or
the extent of that opposition—to a proposed agency action does not create a “substantial
dispute” or make the action “highly controversial.” See id. (“We reject . . . the suggestion
that ‘controversial’ must necessarily be equated with opposition.”).
The only dispute as to the effect of the gunfire that will occur at the proposed
shooting range is fairly minor. The Forest Service hired an expert to conduct a sound
test; Appellants contend that Merck’s expert analysis created a substantial dispute about
the noise that will emanate from the project. This is simply not so. Merck did not
conduct its own sound test of the proposed shooting range but simply critiqued the Forest
Service’s tests and suggested that gunfire sounds “may cause greater stress than exposure
to vocal sounds” and would “likely be more bothersome or annoying for the same given
sound level.” J.A. 1054. It is certainly reasonable and not arbitrary or capricious to
24
conclude that such speculative statements create no significant dispute or controversy—
scientific or otherwise—over the effects of the actual noise levels created by the project. *
Finally, even if we concluded, based on the issues identified by the Appellants,
that the proposed project is “likely to be highly controversial,” 40 C.F.R. § 1508.27(b)(4),
“the existence of a controversy is only one of the ten factors listed for determining if an
EIS is necessary.” Soc’y Hill Towers Owners' Ass’n v. Rendell, 210 F.3d 168, 184 (3d
Cir. 2000). In view of the nature of the controversy—which Appellants have tried to
create by questioning the methodology of the sound tests and other information
considered by the agency—and “the fact that degree of controversy is only one of ten
factors to be considered in determining whether a significant impact is present,” id., we
conclude that the issuance of the FONSI and the Decision Notice in the absence of an EIS
was not arbitrary or capricious.
D.
Appellants contend the Forest Service violated NEPA by not considering the
possible effects of the proposed shooting range project on the values of nearby property.
An EA must include “brief discussions . . . of the environmental impacts of the proposed
*
We are likewise unconvinced by Appellants’ other arguments suggesting that the
proposed project is likely to be highly controversial. For example, the suggestion that the
2008 and 2010 sound tests had to be “re-run” because of public objections to their
“accuracy” is refuted by the record. In response to continued concern about noise levels
expressed by the public during the eleven-year study period, the Forest Service simply
ran additional tests to obtain more information. It did not re-run the same tests as if they
were flawed. As the Forest Service points out, “[t]his kind of agency decision making is
precisely what NEPA encourages.” Brief of Appellee at 58.
25
action and alternatives.” 40 C.F.R. § 1508.9(b). Impacts in this context include effects
that are “ecological (such as the effects on natural resources and on the components,
structures, and functioning of affected ecosystems), aesthetic, historic, cultural,
economic, social, or health.” 40 C.F.R. § 1508.8(b) (emphasis added). Though authority
is scant, some courts have considered the potential effect of a proposed agency action on
nearby property values. See Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783
F.3d 1301, 1324 (D.C. Cir. 2015) (considering whether “Environmental Assessment
[took] a ‘hard look’ at ‘quantifying the impacts of the project on property values and lost
development opportunities’”).
The September 2013 EA lists the value of private property near the proposed
shooting range locations as one of several “other concerns” identified “through the public
comment process.” J.A. 751. It provides in full as follows:
Concerns regarding the values of private property near the shooting range.
This is not a key issue because it is not supported by scientific research.
The Forest Service searched the literature and consulted with social
scientists and legal experts and could not find scholarly research proving a
direct and statistically significant link that shooting ranges devalue
surrounding property.
J.A. 752.
According to Appellants, there was uncontradicted evidence before the Forest
Service indicating that the presence of a shooting range creates a strong likelihood of
diminished nearby property values. Such evidence included an anecdotal opinion from a
local realtor that the Perry Creek range “undoubtedly would lessen the desirability of the
area and would depreciate the land values in the Tusquittee Valley,” J.A. 456, and
26
evidence that persistent noise—such as that created by air traffic or a speedway—tends to
have a depressive effect on property values. Appellants also point to a law review article
that was offered to the Forest Service and indicated that property owners commonly
complain that shooting ranges hurt the value of their property. Because the September
2013 EA did not discuss any of these items specifically, Appellants contend that the
Forest Service refused to take the required “hard look” at this information, rendering its
decision arbitrary and capricious.
As is apparent from its statement in the September 2013 EA, the Forest Service
did not simply refuse to consider the effect of a shooting range on property values. It
acknowledged that it was of concern to some local residents, albeit not a major issue in
the global sense. Moreover, the agency gave at least some consideration to this issue,
noting that it had “searched the literature and consulted with social scientists and legal
experts.” J.A. 752. The record reflects that the Forest Service contacted Dr. Ken Cordell
of Forestry Sciences Laboratory in Georgia who wrote that he was not aware of any work
“that addresses effects of shooting ranges on market value of adjacent or nearby
properties.” J.A. 420. He did note that he believed “[t]here ha[d] been a few studies . . .
addressing generally effects of noise from operations such as airports” and that “[f]rom
personal experience I would say shooting is very much an impact, especially since it
tends to be heaviest on weekends.” Id.
We conclude, based on the record before us, that the Forest Service “considered
the relevant factors,” “examined the relevant data and provided an explanation of its
decision that includes a rational connection between the facts found and the choice
27
made.” Aracoma Coal Co., 556 F.3d at 192 (internal quotation marks omitted). Even
though the EA omits mention of the anecdotal evidence regarding property values, we are
not able to say that the agency made an arbitrary and capricious decision.
E.
Finally, Appellants argue that the Forest Service failed to estimate the cost of
increased road maintenance and failed to consider potential issues created by increased
traffic related to the shooting range. The Forest Service, however, took the required hard
look at this issue, and its decision to authorize the project notwithstanding the
maintenance costs and increased traffic was well within its discretion. The September
2013 EA indicates that the traffic on Nelson Ridge Road, which provides access to the
proposed Perry Creek site, would result in 18 additional cars per day on a heavy-use day
for a total of less than 50 cars per day as a result of the shooting range. This finding was
based on average usage at a Forest Service shooting range in a nearby county. Based on
its experience, the Forest Service concluded that Nelson Ridge Road could handle 100
cars per day and, therefore, that the road could safely absorb the additional traffic created
by the shooting range.
Appellants also argue that the Forest Service relied upon insufficient and
conclusory mitigation measures when determining that there will be no significant impact
from increased traffic on Nelson Ridge Road. We agree with the Forest Service,
however, that neither the FONSI nor the September 2013 EA relied on traffic-mitigation
measures to support these conclusions. “Based on the current and projected traffic
figures, the Forest Service believe[d] that that “Nelson Ridge Road [could] safely absorb
28
range-related vehicular use in addition to current use.” J.A. 49. Likewise, in the
Decision Notice, Ranger Stull stated that “[t]he Forest Service will implement traffic-
calming measures as a safety precaution,” but that “current and projected range use is
consistent with [the applicable standards] for the roads that access the range site.” J.A.
943.
The Forest Service noted that additional regular grading and maintenance would
be required because of the increased traffic. Appellants contend that the Forest Service
failed to consider the cost of increased maintenance in the September 2013 EA or that the
burden of increased costs would fall on local residents. The only evidence of this is a
speculative submission from a local resident. And the increased maintenance costs of 18
additional cars per day on Nelson Ridge Road, see J.A. 819, is not a sufficiently
important factor that the Forest Service’s decision to authorize the shooting range without
estimating the financial costs of increased maintenance is either arbitrary or capricious.
IV.
For the foregoing reasons, we conclude that the Forest Service’s consideration of
the relevant facts and information before it qualified as the NEPA-required “‘hard look’
at the potential environmental consequences of [its] actions.” Aracoma Coal Co., 556
F.3d at 191. Thus, the issuance of the September 2013 EA, the final FONSI and the final
Decision Notice were reasonable and not arbitrary or capricious. Accordingly, we affirm
the decision of the district court.
AFFIRMED
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