Cherokee Forest Voices v. United States Forest Service , 182 F. App'x 488 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0368n.06
Filed: May 25, 2006
No. 05-6570
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHEROKEE FOREST VOICES, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
UNITED STATES FOREST SERVICE, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
Before: RYAN and COOK, Circuit Judges; GWIN, District Judge.*
COOK, Circuit Judge. This case concerns challenges to two logging projects in the
Cherokee National Forest. The plaintiff, a collection of environmental groups, claims that the
projects must be made consistent with a revised forest management plan that went into effect after
the projects’ authorizations. The plaintiff also claims that the expected revisions to the forest plan
should have been addressed in the environmental assessments accompanying the projects. The
district court granted summary judgment to the Forest Service on both claims. We reverse the
district court’s judgment with respect to the first claim and hold that the projects must be made
consistent with the revised forest management plan. We affirm the district court’s judgment with
*
The Honorable James S. Gwin, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
respect to the second claim because we find no deficiencies with the projects’ environmental
assessments.
I
A.
The Cherokee National Forest covers 640,000 acres in Eastern Tennessee. Prior to March 1, 2004,
the forest was managed pursuant to the 1986 Land and Resources Management Plan (“Forest Plan”
or “Plan”). In 1994, the Forest Service began revising the Forest Plan. The final revised Forest Plan
was formally adopted on January 15, 2004, released on January 30, 2004, and became effective on
March 1, 2004.
The Flatwoods and George Creek projects designate uses for the various parts of the forest.
Although the stated purposes of the projects include habitat and tree management, blocking illegal
roads and trails, and rehabilitating wildlife openings, Cherokee Forest Voices’s (“CFV’s”) complaint
focuses on the projects’ plans for tree harvesting and road construction, both of which are to be
achieved through commercial logging.
Both projects, together with their requisite Environmental Assessments (“EAs”) and Findings
of No Significant Impact (“FONSIs”), were approved before the revised Forest Plan became
effective. CFV’s timely appeals of the projects were rejected by the forest supervisor.
-2-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
CFV’s first claim, under § 6(i) of the National Forest Management Act of 1976 (“NFMA”),
16 U.S.C. § 1604(i), alleges various inconsistencies between the Flatwoods and George Creek
projects and the revised Forest Plan. Specifically, CFV alleges that the projects authorize (1)
logging in areas where logging is prohibited by the revised Forest Plan’s logging restrictions; (2)
logging and road-building in areas where such activity is prohibited by the revised Forest Plan’s
riparian prescriptions; and (3) logging based upon habitat goals of the prior Forest Plan that were
substantially revised by the revised Forest Plan. CFV’s second claim alleges that the Forest Service
violated § 102 of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4332, by
failing to adequately disclose, analyze, consider or address a proper set of alternatives to the
proposed projects in light of the impending revisions to the Forest Plan.
Though the claims concern how the projects related to the revised Forest Plan itself, we focus
much of our attention on the Forest Service’s interpretation of the Plan in the Record of Decision
(“ROD”)/Environmental Impact Statement (“EIS”), dated January 15, 2004. The ROD addressed
the Forest Plan’s consistency with “permits, contracts, and other instruments for the use and
occupancy” of National Forest System lands, as required by 16 U.S.C. § 1604(i)1:
1
In fact, § 1604(i) requires “resource plans and permits, contracts, and other instruments”
(emphasis added) to be consistent with “land management plans.” CFV contends the Flatwoods and
George Creek projects are governed by this section as “site-specific projects.” See Habitat Educ.
Ctr., Inc. v. Bosworth, 363 F. Supp. 2d 1090, 1104 (E.D. Wis. 2005). The Forest Service does not
disagree. The parties thus implicitly regard the projects as either “resource plans” or “other
instruments.”
-3-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
In the LMP [the Forest Plan] revision context, NFMA specifically qualifies the
requirement [of consistency] in three ways: 1) these documents must be revised only
“when necessary”, 2) these documents must be revised “as soon as practicable”, and
3) any revisions are “subject to valid existing rights”.
In developing this revised LMP, implementing pre-existing decisions and the
associated effects of that implementation were considered part of the baseline
against which the alternatives were evaluated. Because these earlier decisions were
considered in our effects analysis, their implementation is not in conflict with the
revised LMP. Exercising my discretion under NFMA, I have determined that it is
not “necessary” to apply the revised LMP’s standards retroactively, and I find that
NFMA does not require revision of these pre-existing use and occupancy
authorizations. As soon as practicable after approval of the revised LMP, the Forest
Supervisor shall ensure that, subject to valid existing rights, all outstanding and
future permits, contracts, cooperative agreements and other instruments for
occupancy and use of affected lands are consistent with the revised LMP. On a case-
by-case basis, the Forest Supervisor shall exercise his or her sound discretion in
determining when such consistency is practicable.
(J.A. 434-35) (emphasis added.).
B.
CFV’s administrative appeals of the Flatwoods and George Creek projects laid the
foundation for CFV’s current arguments. In each appeal, CFV alleged that the Forest Service
violated NEPA by failing to address in the EA the impending revision to the Forest Plan; and in the
appeal of the George Creek project, CFV alleged that the project violated NFMA because it was
inconsistent with the revised Forest Plan. The appeal of the Flatwoods project also alleged that the
project conflicted with the revised Forest Plan, but it alleged less directly that the project violated
NFMA. It concluded that “the Flatwoods decision is arbitrary and capricious and may violate the
-4-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
NFMA because the project, which is disallowed by the Revised Plan, will actually take place when
the Revised Plan is in effect.” (J.A. 725) (emphasis added). We find, however, that this allegation
sufficiently presented the issue for our review, in part because the Forest Service’s denial of the
Flatwoods appeal squarely addressed the issue of NFMA compliance.
In the denials of each of CFV’s appeals, the Forest Service relied on the language in the
revised Forest Plan’s ROD to conclude that the projects were consistent with the revised Forest Plan.
In particular, the denials cited the language quoted above that “it is not ‘necessary’ to apply the
revised [Plan’s] standards retroactively, and . . . that NFMA does not require revision of the[] pre-
existing use and occupancy authorizations.” (J.A. 435.) The Forest Service rejected CFV’s NEPA
claim on other grounds.
The district court sided with the Forest Service on what it considered to be the two separate
aspects of CFV’s NFMA claims. First, the court held that § 1604(i) did not require the Forest
Service to modify the projects themselves (referring to them as “the proposed projects”). Second,
the court refused to grant CFV prospective relief with respect to the contracts that would implement
the projects.
The court held that the projects did not need to be modified because “substantial deference”
was due to the Forest Service’s interpretation that the revised Forest Plan was consistent with the
projects. It cited the ROD’s language that “implementing pre-existing decisions and the associated
effects of that implementation were considered in [the revised Plan’s] effects analysis, [and thus]
-5-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
their implementation is not in conflict with the revised [Plan].” (J.A. 434-35.) The court then asked
whether “the Forest Service acted arbitrarily or capriciously in determining that the revised Forest
Plan took into consideration as a baseline the implementation of the [projects.]” (J.A. 30.) And here
the court addressed the discontinuity between the projects and the revised Forest Plan’s riparian
regulations identified by the Forest Service’s August 27, 2004 “Comparisons Between 1986 Forest
Plan and 2004 Revised Plan.” It concluded that the conflicts did not pose a problem because—now
looking to the statute—“it is a reasonable interpretation that § 1604(i) does not require the revision
of projects that were approved prior to the adoption of a revised Forest Plan.”2 (J.A. 32.)
The district court found no need to address the second NFMA issue, whether to apply
prospective relief with regard to the contracts implementing the projects, because it concluded that
CFV failed to raise the issue during the administrative appeals of the projects. Moreover, the court
reasoned, the revised Forest Plan claimed to be consistent with the contracts implementing the
projects, and there was no evidence in the administrative record of CFV challenging the Plan.
The district court rejected CFV’s NEPA claims on the ground that the Forest Service was
not required in an EA to consider the effects of a future, as-of-yet-unadopted policy change. It
considered CFV’s “most compelling argument” to be that “the revised Forest Plan might be
2
The revised Forest Plan provides for variances of the riparian restrictions when a “site-
specific inter disciplinary field investigation determines the need to vary the width[s] [of the riparian
corridor],” but because no “projects [sic] had been prepared for sale” at the time of the appeal, the
court did not consider whether any site-specific investigations had occurred. (J.A. 31-32.)
-6-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
considered as significant new information to be evaluated in a supplemental NEPA process pursuant
to 40 C.F.R § 1502.9(c).” (J.A. 36.) But the court rejected this possibility because the Plaintiff
“failed to show that the revision of the Forest Plan changed the potential impact of the projects on
the human environment in a significant manner.” (J.A. 36.) The court also rejected CFV’s claim
that the ranges of policy alternatives in the EAs were inadequate because they failed to reflect
features of the then-proposed revised Forest Plan that were available to the agency at the time.
CFV timely filed a Notice of Appeal on October 10, 2005. On October 14, 2005, CFV filed
a motion for injunction pending appeal. On October 31, 2005, this court denied the motion but
ordered an expedited schedule for the case.
II
A.
The proper standard of review in this case was well-articulated by Carabell v. U.S. Army
Corps of Eng’rs, 391 F.3d 704, 707 (6th Cir. 2004):
We review the district court’s summary judgment order de novo. Where, as here, the
district court’s order is based on its review of an administrative agency’s final
decision, our review is governed by the Administrative Procedure Act (“APA”). The
APA provides that a court shall set aside an agency’s decision only if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). This standard of review is highly deferential, and the court is “not
empowered to substitute its judgment for that of the agency.” Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 416 (1971). An agency’s factual findings are
conclusive if supported by substantial evidence, and an agency’s interpretation of its
-7-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
own regulations is entitled to substantial deference and will be upheld unless plainly
erroneous or inconsistent with the regulatory text. 5 U.S.C. § 706 (2)(E).
(Citations omitted.)
B.
NFMA governs the Forest Service’s regulation of the national forest system. The Secretary
of Agriculture, acting through the National Forest Service, is required to “develop, maintain, and, as
appropriate, revise land and resource management plans for units of the National Forest System.”
16 U.S.C. § 1604(a). Such plans must “provide for multiple use and sustained yield of the products
and services obtained therefrom . . . and, in particular, include coordination of outdoor recreation,
range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e). The final plan
divides a forest into management areas and stipulates how resources in each of these areas will be
administered. A forest plan must be revised when conditions in a forest “have significantly changed,”
but at least once every fifteen years. 16 U.S.C. § 1604(f)(5). “Implementation of the forest plan is
achieved through individual site-specific projects, and all projects must be consistent with the forest
plan.” Northwoods Wilderness Recovery v. U.S. Forest Serv., 323 F.3d 405, 407 (6th Cir. 2003)
(citing 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10 (1999)). See Habitat Educ. Ctr., Inc. v. Bosworth,
363 F. Supp. 2d 1090, 1104 (E.D. Wis. 2005).
Specifically, § 1604(i) provides:
-8-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
Consistency of resource plans, permits, contracts, and other instruments with land
management plans; revision. Resource plans and permits, contracts, and other
instruments for the use and occupancy of National Forest System lands shall be
consistent with the land management plans. Those resource plans and permits,
contracts, and other such instruments currently in existence shall be revised as soon
as practicable to be made consistent with such plans. When land management plans
are revised, resource plans and permits, contracts, and other instruments, when
necessary, shall be revised as soon as practicable. Any revision in present or future
permits, contracts, and other instruments made pursuant to this section shall be subject
to valid existing rights.
(Emphasis added.) In addition, 36 C.F.R. § 219.10(e) (1999) provided:
As soon as practicable after approval of the plan, the Forest Supervisor shall ensure
that, subject to valid existing rights, all outstanding and future permits, contracts,
cooperative agreements, and other instruments for occupancy and use of affected
lands are consistent with the plan.
The only exception provided by § 1604(i)—that revisions “shall be subject to valid existing
rights”—does not apply here, as the Forest Service has not argued that such rights were conferred by
the projects.
The “final agency action[s]” that provide the basis for jurisdiction in this case are the Forest
Service’s decisions denying CFV’s administrative appeals of the projects. See 5 U.S.C. § 704
(“Agency action made reviewable by statute and final agency action for which there is no other
adequate remedy in a court are subject to judicial review.”). In each appeal, the Forest Service relied
on language from the ROD for the revised Forest Plan to reject CFV’s claim that the projects were
inconsistent with the revised Forest Plan and thus required revision. Substantial deference is due to
-9-
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
the Forest Service’s interpretation of a Forest Plan. See Forest Guardians v. U.S. Forest Serv., 329
F.3d 1089, 1098 (9th Cir. 2003) (“[F]ederal courts are required to defer to an agency’s reasonable
interpretation of its own guidelines, . . . and the Service’s decision can be overturned only if the
phased-in reduction scheme is plainly erroneous or inconsistent with the Forest Plan.” (citation
omitted)).
The Forest Service’s central argument is that it is unnecessary to revise the projects because
the ROD interpreted the revised Forest Plan to be consistent with the Flatwoods and George Creek
projects. For support, the Forest Service relies on the ROD’s blanket statement that “implementing
pre-existing decisions and the associated effects of that implementation were considered part of the
baseline against which the alternatives [for the revised Forest Plan] were evaluated” and that
therefore “their implementation is not in conflict with the revised [Plan].” (J.A. 434-35.) This
reasoning is valid, if not necessarily sound: the Forest Service certainly could have revised the Forest
Plan to accommodate the Flatwoods and George Creek projects and thereby rendered them consistent
with the Forest Plan. And had these statements in the ROD been the Forest Service’s only comments
on the matter, this court would have accepted them, unless clearly erroneous.
But, as the district court found, to prevail in this case the Forest Service cannot rely only on
the interpretation of the revised Forest Plan in the ROD. The August 27, 2004 Comparison
acknowledges that the revised Forest Plan and the projects conflict, at least with respect to the revised
Plan’s riparian restrictions. With respect to the Flatwoods project, the Comparison concludes that
- 10 -
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
“Flatwoods would not comply with the Revised Plan for perennial riparian corridors,” and,
concerning the so-called “Streamside Management Zones,” “[o]nly on the steeper slopes would the
project not comply with the Revised Plan.” (J.A. 785.) As regards the George Creek project, the
Comparison likewise admits noncompliance. (J.A. 787.) This apparent variance from the Revised
Plan forces the Forest Service to argue that § 1604(i) allows the Forest Service to determine whether
(or not) to revise projects even when those projects are inconsistent with a revised Forest Plan.
In support of its view that § 1604(i) does not require the Service to revise pre-existing projects
to be consistent with a revised Forest Plan, the Forest Service urges that “[p]hrases like ‘as soon as
practicable’ and ‘when necessary’ clearly give the Forest Service discretion in how a new Forest Plan
applies to projects developed under a prior Forest Plan.” (Appellee’s Br. 20.) The district court
agreed.3 We believe however that this reading of the statute contradicts the Forest Service’s own
regulations, see 36 C.F.R. § 219.10(e) (1999), and confounds logic. For were it entirely within the
3
See Memorandum, J.A. 32:
On its face, neither Section 1604(i) nor the implementing regulations refer to the
revision of projects, but only refer to the revision of instruments, ‘when necessary’.
This Court finds that it is a reasonable interpretation that § 1604(i) does not require
the revision of projects that were approved prior to the adoption of a revised Forest
Plan in order to bring them in compliance with the revised Forest Plan.
There are two potential arguments here: 1) that the “when necessary” language grants the Service
discretion to revise the projects when it sees fit; and 2) that the statute speaks of “instruments,” not
projects, so no revision of the Flatwoods and George Creek projects is necessary. CFV’s position
is that the projects are either “resource plans . . . permits, contracts, [or] other instruments,” and the
Forest Service does not contend otherwise. See supra n.1. We thus understand the district court to
have adopted the first argument.
- 11 -
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
Forest Service’s discretion to revise a project that conflicted with a revised Plan, it would be of no
legal consequence that an existing “resource plan . . . permit, contract [or] other instrument[]”
conflicted with a revised Forest Plan, and the third sentence of § 1604(i)—the sentence that includes
the “when necessary” phrase—would have no operative effect. On the other hand, if “when
necessary” is read to mean when a conflict exists, the statute makes perfect sense. The inclusion of
“when necessary” would then serve to prevent the third sentence from being misunderstood as
requiring an existing “resource plan . . . permit, contract [or] other instrument” to be revised even
when no conflict existed with a revised Forest Plan. Based upon this plain reading of the statute, we
hold that district court erroneously granted summary judgment to the Forest Service.
Because we disagree with the district court’s statutory holding that a project could conflict
with the revised Forest Plan without violating § 1604(i), we remand to the court questions preempted
by its erroneous conclusion. Specifically, the district court will need to review the August 27, 2004
Comparison’s conclusion as to the projects’ consistency with the revised Plan’s logging restrictions
or early successional habitat limitations, determining whether those latter two determinations were
“plainly erroneous or inconsistent with the Forest Plan.” Forest Guardians, 329 F.3d at 1098.
This disposition moots the related issue confronted by the district court: whether prospective
relief should be awarded to CFV as to contracts implementing the projects. Because we hold today
that § 1604(i) requires the projects be consistent with the revised Forest Plan, the contracts
implementing those projects must also be consistent with the revised Forest Plan. For that reason,
- 12 -
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
we have no cause to inquire whether CFV failed to exhaust its administrative remedies with respect
to the contracts that would have implemented the projects as they are currently drawn.
C.
The second issue concerns the National Environmental Policy Act and Environmental Impact
Study compliance. NEPA requires federal agencies to prepare an EIS for “major federal actions
significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). NEPA does
not mandate “particular results,” but only that the agency follow the necessary procedures in
assessing the environmental effects of projects. Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989). NEPA’s policy goals are:
realized through a set of ‘action-forcing’ procedures that require that agencies take
a hard look at environmental consequences and that provide for broad dissemination
of relevant environmental information. Although these procedures are almost certain
to affect the agency’s substantive decision, it is now well settled that NEPA itself
does not mandate particular results, but simply prescribes the necessary process.
Id. (quotation omitted). In the district court’s words, “the Court may not substitute its judgment for
the judgment of the agency, but rather must determine whether the defendant ‘has, in fact, adequately
stated the issue and taken a “hard look” at the environmental consequences of its decision.’” (J.A.
35) (quoting Kelley v. Selin, 42 F.3d 1502, 1518-19 (6th Cir. 1995) (quotation omitted)).
In the context of the NFMA:
- 13 -
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
Forest plans, as well as site-specific proposals, must be prepared in compliance with
National Environmental Policy Act, 42 U.S.C. § 4321, and the regulations
contemplate the preparation of an appropriate Environmental Impact Statement as
directed by the Policy Act as part of an integrated process. 16 U.S.C. § 1604(g)(1);
36 C.F.R. § 219.6(b). Federal regulations permit an agency that is planning a major
federal action to conduct a less exhaustive Environmental Assessment to determine
whether the proposed action will “significantly affect” the environment and thus
whether an Environmental Impact Statement is required. 40 C.F.R. §§ 1501.4(b),
1508.9 (2001). If the Environmental Assessment reveals that the proposed action will
significantly affect the environment, the agency must prepare an Environmental
Impact Statement. See id. Conversely, if the agency makes a Finding of No
Significant Impact, 40 C.F.R. § 1501.4(e), then it is not required to prepare an
Environmental Impact Statement.
Northwoods Wilderness Recovery, 323 F.3d at 407.
CFV grounds its NEPA claims on § 4332(2)(E), which requires that “all agencies of the
Federal Government . . . study, develop, and describe appropriate alternatives to recommended
courses of action in any proposal which involves unresolved conflicts concerning alternative uses of
available resources.” An agency must follow § 4332(2)(E) even when it prepares an EA. 40 C.F.R.
§ 1508.9(b) (“[EAs] [s]hall include brief discussions of the need for the proposal, of alternatives as
required by [§ 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and
a listing of agencies and persons consulted.”). CFV contends that the Forest Service violated NEPA
by failing to consider the as-of-yet-unadopted revised Forest Plan in the EAs for the Flatwoods and
George Creek projects.
But NEPA requires that EISs (and EAs) address the environmental impacts of proposed
projects, not their legal status or consistency with proposed policy changes. See Sierra Club v. U.S.
- 14 -
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
Forest Serv., 46 F.3d 835, 840 (8th Cir. 1995) (holding that an EA did not need to assess the effects
of correcting an error in the applicable forest plan because “[t]he purpose of an EA is to provide
information for determining whether prospective projects may have significant environmental
impacts”); Swanson v. U.S. Forest Serv., 87 F.3d 339, 344 (9th Cir. 1996) (holding that the
designation of a species as “threatened” did not require preparation of a supplemental EIS where the
environmental impacts of timber sales on the species had already been addressed, because a change
in the “legal status” of the species did not alter its “biological status” and “did not constitute new
information that would show that the timber harvests and sales were likely to ‘affec[t] the quality of
the . . . environment’ in a significant manner” (quoting Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 374 (1989) (alterations in original))).4
CFV’s response to these cases is that the restrictions imposed by the revised Forest Plan—and
likely known at the time of the projects’ EAs—would have prohibited some of the alternatives
considered in the EAs, and thus rendered the range of alternatives in the EAs incomplete. But
nothing in the expected revisions changed the effect that the projects would have upon the
environment, NEPA’s only focus. And just as an expected loosening of regulations does not require
4
Regarding the supplementation (as opposed to the revision) of the EAs, cf. 40 C.F.R. §
1502.9(c): “Agencies: (1) Shall prepare supplements to either draft or final environmental impact
statements if: (i) The agency makes substantial changes in the proposed action that are relevant to
environmental concerns; or (ii) There are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts.” CFV does not point to
any changes “in the proposed action,” or new “circumstances or information relevant to
environmental concerns” (emphasis added).
- 15 -
No. 05-6570
Cherokee Forest Voices v. United States Forest Service
the Forest Service to address alternatives that might become compliant, an expected tightening of
regulations does not limit the alternatives that the Forest Service may consider.
Because the agency’s alleged knowledge of the policy changes imposed by the impending
Forest Plan revision did not implicate the environmental impacts of the Flatwoods or George Creek
projects, we affirm the district court’s grant of summary judgment to the Forest Service on CFV’s
NEPA claims.
III
For these reasons, we reverse the district court’s summary judgment on CFV’s NFMA claims
and find arbitrary and capricious the Forest Service’s conclusion that 16 U.S.C. § 1604(i) does not
require the Forest Service to make existing projects consistent with a revised Forest Plan. We affirm
the district court’s summary judgment to the Forest Service on CFV’s NEPA claims.
- 16 -