Friends of Bd. Water v. Michael Dombeck , 164 F.3d 1115 ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3282
___________
Friends of the Boundary Waters *
Wilderness; Wilderness Watch; Sawbill *
Outfitters, Inc.; Izaak Walton League of *
America; The Wilderness Society; *
Wilderness Inquiry, Inc., *
*
Appellants, *
*
v. *
*
Michael P. Dombeck, as Chief of the *
United States Forest Service; Daniel *
Glickman, as Secretary of Agriculture, *
*
Appellees. *
___________
Appeals from the United States
No. 97-3292 District Court for the District of
___________ Minnesota.
County of St. Louis, County of Lake, *
County of Cook, National Association *
of Canoe Liveries and Outfitters, *
Conservationists with Common Sense, *
Ely Outfitters Association, Grand *
Marais Gunflint Trail Outfitters *
Association, Harvey G. Solberg, *
*
Appellants, *
v. *
*
Michael P. Dombeck, Chief of the *
U. S. Forest Service; Daniel Glickman, *
Secretary of the U. S. Department of *
Agriculture, *
*
Appellees, *
*
Wilderness Inquiry, Inc.; Friends of *
the Boundary Waters Wilderness; *
Wilderness Watch; Sawbill Trail *
Outfitters Association, *
*
Intervenors-Appellees. *
________________
Submitted: March 11, 1998
Filed: January 7, 1999
________________
Before WOLLMAN and HANSEN, Circuit Judges, and GOLDBERG,1 Judge.
___________________
HANSEN, Circuit Judge.
This appeal involves two separate cases which were consolidated before the
district court. The plaintiffs in each case sought judicial review of agency action taken
by the defendants, the United States Forest Service and the United States Department
of Agriculture. The agency action complained of involves the defendants'
interpretation of the statutes governing the Boundary Waters Canoe Area (BWCA)
Wilderness,
1
The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
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which is located in the Superior National Forest along the United States and Canadian
border in Minnesota. The challenged statutory interpretations, dealing with visitor and
motorboat use restrictions in the BWCA Wilderness, are articulated in the Forest
Service's BWCA Wilderness Management Plan and Implementation Schedule of 1993
(the Wilderness Plan). The parties submitted their cases to the district court on cross-
motions for summary judgment. In each case, the district court granted summary
judgment to the defendants, and the plaintiffs appeal. We affirm in part and reverse
in part.
I.
The Wilderness Act of 1964, 16 U.S.C. § 1131-36 (1994), established a national
system of preserving and protecting federally held wilderness areas. The BWCA,
comprising more than one million acres of land and waterways in the Superior
National Forest, was among the initial wilderness areas designated for protection. See
16 U.S.C. § 1132. The BWCA Wilderness contains over one thousand portage-linked
lakes, and it is a heavily visited wilderness area, though motorized vehicle use is
severely restricted. See State of Minnesota By Alexander v. Block, 660 F.2d 1240,
1245 (8th Cir. 1981), cert. denied, 455 U.S. 1007 (1982). The Wilderness Act of 1964
generally prohibits the use of motorboats and motor vehicles within any designated
wilderness, except as required for administration of the area. See 16 U.S.C. § 1133(c);
Block, 660 F.2d at 1245. In the same 1964 Act, Congress muddied the waters, so to
speak, by including a proviso which permitted the continuance within the BWCA of
any already established use of motorboats. See 16 U.S.C. § 1133(d)(5) (1976),
repealed by Pub. L. No. 95-495, 92 Stat. 1649, 1650 (1978). These provisions sparked
a great deal of local controversy over motorboat use in the BWCA Wilderness. See
Block, 660 F.2d at 1246.
In 1978, Congress provided additional guidance by enacting the Boundary
Waters Canoe Area Wilderness Act (the BWCA Wilderness Act), Pub. L. No. 95-495,
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92 Stat. 1649 (1978). In doing so, it eliminated prior section 1133(d)(5) and in its
place legislated a ban on the use of motorboats in the BWCA Wilderness except on
particular named lakes, portions of lakes, and rivers. See 92 Stat. at 1650, § 4(c).
Congress directed the Secretary to develop and implement entry point quotas to govern
and restrict the use of motorboats on those particular lakes listed in section 4(c) where
it had legislatively authorized their restricted use. 92 Stat. at 1651, § 4(f). The only
specific guidance given to the Secretary concerning these quotas was a statutory cap
on motorboat use, which prescribes that motorboat use "shall not exceed the average
actual annual motorboat use" during the years 1976 through 1978. Id.
The Department of Agriculture and the Forest Service manage the BWCA
Wilderness in accordance with a 1986 Land and Resource Management Plan for the
Superior National Forest, amended by the BWCA Wilderness Management Plan and
Implementation Schedule of 1993 (the Wilderness Plan), which is the challenged
agency action in this suit. The Record of Decision accompanying the Wilderness Plan
indicates that the Forest Service established these motorboat quotas after considering
the pertinent legislation, Forest Service policy, the needs of the environment, the
historic uses of the area, and the recreational needs of the visitors. The Record of
Decision explains that the available information indicated that "use levels have begun
to strain the wilderness environment" (Record of Decision at 7), and that "[t]he role of
the Wilderness Plan is to guide the management of the Wilderness in a manner that
maintains its naturalness and protects it for the use of future generations." (Id. at i.)
To this end, and to implement the BWCA Wilderness Act, the Wilderness Plan
restricts visitor and motorboat use within the BWCA through a quota system, entry
point restrictions, special permits for commercial towboats,2 and a special exemption
from the motorboat quota system for homeowners, resort owners, and their guests.
These are the provisions at issue.
2
Commercial towboats transport additional canoes, boats, camping supplies,
equipment, and persons across the waterways of the BWCA.
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One group of plaintiffs consists of several counties, concerned citizens, and
outfitters in the BWCA (collectively, the Outfitters). The Outfitters brought suit
challenging the Wilderness Plan, claiming the Plan's motorboat quotas, visitor use
restrictions, and definition of "guest" unduly limit access to the BWCA Wilderness in
violation of the BWCA Wilderness Act; the Administrative Procedure Act (APA), 5
U.S.C. § 706 (1994); the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101-12213 (1994); and the National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4332(2) (1994). The other group of plaintiffs consists of several environmental
groups concerned with the BWCA Wilderness (collectively, the Environmentalists).
The Environmentalists intervened in the Outfitters' suit and brought a separate
challenge to the Wilderness Plan, claiming that its special use permits for towboats and
the Plan's grouping of certain listed chains of lakes on which homeowners, resort
owners, and guests are exempt from the quota system, allow excessive motorized use
in the area in violation of the BWCA Wilderness Act and the APA. In each case, the
Forest Service asserted that the restrictions and definitions in the Wilderness Plan
comply with all Congressional mandates and are not arbitrary or capricious.
The district court consolidated the two cases, and all parties sought summary
judgment. The district court granted summary judgment in favor of the Forest Service
and the Department of Agriculture, dismissing the Outfitters' ADA claim (which is not
appealed); dismissing the Outfitters' and Environmentalists' APA claims, concluding
that the policies expressed in the Wilderness Plan are consistent with and a reasonable
interpretation of the BWCA Wilderness Act; and dismissing the Outfitters' NEPA
claims, concluding that the Outfitters lacked standing to assert the claims under NEPA.
The plaintiffs appeal the dismissal of their APA claims and the Outfitters' NEPA
claims.
II.
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We review a district court's summary judgment decision de novo, applying the
same standards as those employed by the district court. See Phillips v. Taco Bell
Corp., 156 F.3d 884, 887 (8th Cir. 1998). Summary judgment is proper if the
evidence, viewed in the light most favorable to the nonmoving party, demonstrates the
absence of any genuine issue of material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). The parties here have all moved
for summary judgment, and they agree that no disputed issue of material fact remains.
Consequently, we need only determine which party is entitled to judgment as a matter
of law.
We bear in mind that when reviewing agency action, we accord "substantial
deference to the agency's interpretation of the statutes and regulations it administers."
Vue v. INS, 92 F.3d 696, 699 (8th Cir. 1996) (citing Chevron USA, Inc. v. Natural
Resources Defense Council, 467 U.S. 837, 842-44 (1984)). We defer to the agency's
interpretation "so long as it is not arbitrary, capricious, an abuse of discretion, or
otherwise not supported by law." State of Minnesota v. Apfel, 151 F.3d 742, 745 (8th
Cir. 1998) (internal quotations omitted); see 5 U.S.C. § 706(2)(a). "Whether an
agency's action is arbitrary and capricious depends on whether 'the agency has . . .
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.'" Mausolf v. Babbitt, 125 F.3d 661, 669 (8th Cir. 1997)
(quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983)), cert. denied, 118 S. Ct. 2366 (1998). When reviewing an agency's
construction of a statute, the court first considers whether the intent of Congress is
clear; if so, the court's inquiry is over, "for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-
43. If the statute is silent or ambiguous on the question at issue, the court considers
whether the agency interpretation "is based on a permissible construction of the
statute." Id. at 843.
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A. Towboat Special Use Permits
The BWCA Wilderness Act directs the Secretary of Agriculture to develop and
implement "entry point quotas for use of motorboats within the wilderness portions of
the lakes." Pub. L. No. 95-495, 92 Stat. 1651, § 4(f). Congress specifically directed
"[t]hat the quota established for any one year shall not exceed the average actual annual
motorboat use of the calendar years [1976-78] for each lake." Id. The Wilderness Plan
establishes motorboat use quotas and separate special use permits for commercial
towboats, providing that "all towboat operations must be authorized by a special use
permit," and that "[t]owboat use will be limited to the 1992 levels for numbers of
boats, trips, current operators, and specific lakes." (Wilderness Plan at 3-14; Outfitters'
App. at 45). Further, the Plan provides that growth in commercial towboat operations
beyond these limits will not be permitted. Commercial towboats subject to this special
use permit requirement do not count against the quotas established for motorboat use
on those lakes where towboats are permitted to operate.
The Environmentalists challenge the Forest Service's adoption of special use
permits for commercial towboats. They argue that the plain language of the BWCA
Wilderness Act requires towboat use to be taken into account in the motorboat use
quotas because the statute makes no explicit exception for commercial towboats. We
respectfully disagree. The plain language of the statute requires the Secretary to
implement a system of "entry point quotas" for motorboat use and caps the quota at the
average use for the years 1976-78, which totaled 10,539 motorboat trips. Within these
guideposts, the specific means of implementing motorboat use quotas is left to the
discretion of the Secretary. While the Secretary has chosen to implement an
independent means of monitoring commercial towboats, the Secretary has not
exempted commercial towboats from the overall motorboat use restrictions set forth
in the BWCA Wilderness Act. The Wilderness Plan limits commercial towboats to
their 1992 levels, which amounts to 1,342 towboat trips per season. Separately, the
Plan sets the general motorboat use quota at 7,902 trips. The combined number of
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motorized boat trips that the Plan allows (1,342 + 7,902) totals 9,244 trips, which does
not exceed the 10,539 motorboat trips cap mandated by the BWCA Wilderness Act.
Accordingly, this portion of the Plan is an entirely reasonable and permissible
construction of the statute.
Additionally, the Environmentalists contend that the statute does not delegate
authority for the agency to issue special use permits to commercial towboats, and
therefore, the agency is engaged in an unauthorized regulatory scheme. Contrary to
the Environmentalists' assertion, the Plan's creation of special use permits for
commercial towboats does not create an unauthorized regulatory scheme. As noted
above, the statute delegates to agency discretion the job of implementing the provisions
of the BWCA Wilderness Act and the Wilderness Act of 1964, and gives no more
specific direction than requiring the implementation of use quotas and capping use
levels at the average use during the years 1976-78. The Act does not prescribe the
manner or type of entry point regulatory schemes that may be used by the agency to
implement the quotas required by the statute. The Forest Service's separate system for
monitoring commercial towboat use is born out of a concern that absent a separate
system, commercial towboat use would grow and take up an increasingly greater
percentage of the available motorboat use quota, leaving fewer quota permits available
to visitors. We conclude that this is a reasonable concern and that the Wilderness
Plan's implementation of special use permits for commercial towboats is consistent
with the statute.
B. "Guest" Definition
The Outfitters contend that the Wilderness Plan's definition of the term "guest"
is too restrictive and is inconsistent with the language of the statute. The statute
exempts from the motorboat use quotas any motorboat use by real estate owners and
their guests by specially providing "[t]hat on each lake homeowners and their guests
and resort owners and their guests on that particular lake shall have access to that
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particular lake and their entry shall not be counted in determining such use." Pub. L.
No. 95-495, 92 Stat. 1651, § 4(f). Congress did not specifically define who qualifies
as a "guest" within the meaning of the statute. The agency's Wilderness Plan provides
a definition that limits the term to "[a] person receiving overnight lodging at a home
or resort, and who lodges with the consent of a keeper or owner. Customers; i.e., those
who purchase a meal, rent a boat, or pay for parking, are not considered guests."
(Wilderness Plan, App. F. at F-5; Outfitters' App. at 104.) As such, the term is
restricted to overnight lodgers, and all other customers who take a motorboat out on
a lake must be counted against the motorboat use and entry point quotas.
The Outfitter plaintiffs contend that the Wilderness Plan's restriction of "guests"
to include only overnight visitors is not based on a permissible construction of the
statute because it is too specialized a meaning to impose on the common word chosen
by Congress. While "the court as well as the agency must give effect to the
unambiguously expressed intent of Congress," Chevron, 467 U.S. at 842-843, when
a term is ambiguous, the court's task is not to decide the best interpretation of the
statute, but whether the agency's interpretation represents a reasonable one. Atlantic
Mut. Ins. Co. v. CIR, 118 S. Ct. 1413, 1418 (1998). Congress did not specifically
define the term "guest," nor has the Forest Service ever specifically defined the term
in prior wilderness management plans. As a purely linguistic matter, the word is
common and broad enough to include mere daytime customers, as the Outfitters assert.
In fact, the meaning of "guest" can be quite varied given the context in which the word
is used, and it is not beyond the scope of common usage of the word to define a resort
"guest" as an overnight lodger.
Furthermore, the agency has found that the lack of any specific definition of this
word in the past has resulted in an abuse of this exemption from the motorboat use
quotas. As the district court pointed out, without the contested definition, resort
owners could treat every customer who purchased a candy bar or bait as a resort
"guest" to whom they could rent a motorboat for the day without counting against the
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quota system. The Forest Service sought to avoid such abuses by defining only
overnight lodgers as guests. We bear in mind both that the statutory exemption at issue
is crafted as an exception to the motorboat use quotas and that these quotas are
required by Congress with the intent of protecting the BWCA Wilderness. See Block,
660 F.2d at 1251 (holding the motor use restrictions of section 4 of the BWCA
Wilderness Act are "part of an elaborate system of regulation [Congress] considered
necessary to preserve the BWCAW as a wilderness"). Preventing both the repetition
of any past or future abuse of the "guest" exemption and the resulting detriment to the
goals expressed by Congress, is a reasonable basis on which to impose a more specific
and limited definition of "guest." We conclude that the construction of "guest"
provided by the Plan does not thwart congressional intent but is a reasonable attempt
to comply with the overall congressional intent of protecting this wilderness area
through motorboat use restrictions.
We believe the Outfitters exaggerate the problems that could result from this
definition. They assert that under this restrictive definition, a child could not spend the
day fishing with a parent homeowner without a permit. This argument strains common
sense. In our view, the plain meaning of the statute allows the immediate family
members of a homeowner who reside in the home access to the particular lake on
which the home is located without even considering the definition of "guest." Also,
the Plan does not restrict the number of motorboats a homeowner may own or use to
access the lake. While the definition restricts a homeowner's day-only guests
(including a homeowner's child who does not reside in the home and whose visit does
not include an overnight stay) from placing the guest's motorboat in the water without
a permit, this inconvenience does not render the agency's interpretation unreasonable
or arbitrary.
The Outfitters also contend that the agency's definition of "guest" represents a
departure from how the agency has interpreted the word in the past, and thus, it is not
entitled to deference. We disagree. No prior Forest Service or Department of
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Agriculture plans for the BWCA Wilderness have provided a specific definition of the
term. Even assuming the new definition runs contrary to some prior agency policy,
"the mere fact that an agency interpretation contradicts a prior agency position is not
fatal," unless the new position is a sudden and unexpected change in agency policy that
can be characterized as arbitrary, capricious, or an abuse of discretion. Smiley v.
Citibank (South Dakota) N.A., 517 U.S. 735, 742 (1996); see also Lovilia Coal Co. v.
Harvey, 109 F.3d 445, 452 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385 (1998). The
Forest Service explained that because it has not provided any definitional guidance in
the past, this exemption has become an area of possible abuse of the quota system, and
it has now provided this specific definition of "guest" in an attempt to avoid such
abuse. Because no definition was specified under prior plans, the current definition
cannot be considered as reversing a prior agency policy, and in any event, the new
definition is not arbitrary, capricious, or an abuse of agency discretion.
We conclude that the Forest Service's definition of "guests" of homeowners or
resort owners as including only overnight lodgers is not an unreasonable interpretation
of the statute and that it reasonably promotes the objectives of the statute.
C. "That Particular Lake"
As noted above, the BWCA Wilderness Act creates the following exemption
from motorboat use quotas: "Provided further: That on each lake homeowners and
their guests and resort owners and their guests on that particular lake shall have access
to that particular lake and their entry shall not be counted in determining such use."
Pub. L. No. 95-495, 92 Stat. 1651, § 4(f) (emphasis added). The Wilderness Plan (not
the statute) defines the phrase "that particular lake" by providing that certain chains of
lakes are to be considered one lake "[f]or the purpose of administering th[e] guest
provision." (Wilderness Plan at 3-16; Outfitters' App. at 47.) The Plan states that the
Moose Lake Chain, comprised of Moose, Sucker, Newfound, and Birch Lakes, is
considered one lake; that the Farm Lake Chain, comprised of White Iron, Farm,
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Garden, and South Farm Lakes, is considered one lake; and that the Seagull River and
Gull Lake are considered part of Saganaga Lake.
The Environmentalists challenge the agency's decision to consider each chain
of lakes as one lake for purposes of exempting property owners and their guests from
the motorboat use quotas, contending that this policy impermissibly expands the
motorboat use quota exemption. The Environmentalists contend that this statutory
exemption from motorboat use quotas gives property owners and their guests quota-
free access only to the named lake that abuts their property.
The Forest Service asserts that its interpretation is reasonable because it has
always applied this interpretation. Since the BWCA Wilderness Act was passed in
1978, the Forest Service has defined the Moose Lake and Farm Lake chains as one
lake each, and has considered the Seagull River and Gull Lake as part of Saganaga
Lake in administering the guest provision of section 4(f). The Forest Service reasoned
that because these interconnected waterways have a continuously navigable water
surface, they are properly considered as one lake. The agency asserts it wanted to
avoid interrupting long-standing travel patterns between the lakes within these chains
and to continue the Forest Service's historic treatment of these waterways as a single
lake. The Forest Service further argues that enforcement of quotas on these connected
lakes would be difficult since the property owners and guests can access the connected
lakes without leaving the water.
We are not persuaded by the Forest Service's reasons for redefining the plain
language of the phrase "that particular lake" as including more than one lake. The
premise of the BWCA Wilderness Act of 1978 is that motorboat use is prohibited in
the wilderness area, except to the extent that Congress specifically authorized
motorboat use on specifically designated lakes, portions of lakes, and rivers. Pub. L.
No. 495, 92 Stat. 1650, § 4(c). While a consistent historic interpretation by the agency
is entitled to no small amount of deference, it cannot control our interpretation of the
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statute when that prior interpretation is at odds with and contrary to the plain language
of the statute which the agency is responsible for implementing. When Congress has
directly spoken on a matter, and "the intent of Congress is clear, that is the end of the
matter, for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress." Chevron, 467 U.S. at 842-43.
In our view, Congress has spoken in unambiguous terms by using the phrase
"that particular lake" in section 4(f) of the BWCA Wilderness Act. We can assume
Congress was well aware that many lakes within the BWCA Wilderness are separately
named lakes but are interconnected by waterways--one of the unique features of this
particular wilderness area. Congress demonstrated this understanding in section 4(c)
of the same Act, wherein Congress provided an exception to the general motorboat
prohibition by allowing boats with certain sized motors to travel on certain individually
named lakes--some of the same lakes with recognized and specific names that the
Forest Service now attempts to lump together as one. Congress even prescribed
differing motor sizes as appropriate for each specifically named lake, including lakes
within a single chain of lakes as now designated by the Forest Service. Thus, when
Congress states in section 4(f) that property owners and their guests have access to "that
particular lake," it is clear to us from the context that each individually named lake is
to be considered a "particular lake." It is not reasonable for the Forest Service to
broaden this restrictive phrase by redefining the term "lake" to include several
connected but individually named lakes when, within the same section of the Act,
Congress has listed named lakes separately and prescribed differing motor sizes for the
different specifically named lakes, and indeed has gone so far as to subdivide named
lakes for motorboat use purposes.
Given the plain language of the subsection at issue and its context, we are
convinced that the homeowner/resort owner and guest exception to the motorboat use
quota system should remain as narrow as Congress has written it and that the agency's
interpretation is not permissible because it is contrary to the clearly expressed intent of
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Congress. Accordingly, the Environmentalist plaintiffs were and are entitled to
summary judgment on this issue.
D. NEPA Standing
The Outfitters claim that the Forest Service's Wilderness Plan for the BWCA
Wilderness violates NEPA, see 42 U.S.C. § 4332(2), asserting that the Final
Environmental Impact Statement (Final EIS), prepared to aid the agency in analyzing
the effects of the Wilderness Plan, was inadequate to satisfy the terms of NEPA. The
district court determined that the Outfitters did not have standing to raise their NEPA
claims because they complain of potential economic loss, which the district court
concluded is not a protected interest under NEPA. The Outfitters contend on appeal that
they have standing under the APA to assert that they have been "adversely affected or
aggrieved by agency action," see 5 U.S.C. § 702, because their NEPA claims include
environmental interests as well as social and economic interests, and their claims
challenge the adequacy of the Forest Service's consideration of the economic impact of
the Plan.
"The question of standing 'involves both constitutional limitations on federal court
jurisdiction and prudential limitations on its exercise.'" Bennett v. Spear, 520 U.S. 154,
117 S. Ct. 1154, 1161 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)); see
id. at 1161 (prudential principles of standing are judicially imposed jurisdictional limits
which may be altered by Congress); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992) (constitutional case and controversy standing requires a party to demonstrate
an injury in fact which can be traced to the conduct complained of and is likely to be
redressed by a favorable decision). Constitutional standing is not challenged in this
case. The relevant prudential principle at play is the zone-of-interests test, which
considers "'whether the interest sought to be protected by the complainant is arguably
within the zone of interests to be protected or regulated by the statute or constitutional
guarantee in question.'" Bennett, 117 S. Ct. at 1167 (quoting Association
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of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)); accord
National Credit Union Admin v. First Nat. Bank & Trust, 118 S. Ct. 927, 933 (1998);
Lujan v. National Wildlife Fed'n, 497 U.S. 871, 883 (1990). The breadth of this zone-
of-interests test varies depending upon the language of the statutory provision at issue.
Bennett, 117 S. Ct. at 1161. Recently, in the context of the Endangered Species Act, the
Supreme Court refined the zone-of-interests test, stating that "[w]hether a plaintiff's
interest is arguably protected by the statute within the meaning of the zone-of-interests
test is to be determined not by reference to the overall purpose of the Act in question .
. . but by reference to the particular provision of law upon which the plaintiff relies."
Id. at 1167 (alterations and quotations omitted).
While the overall purpose of NEPA is to establish "a broad national commitment
to protecting and promoting environmental quality," Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 348 (1989), the particular provisions relied on by the
Outfitters indicate that the social and economic effects of proposed agency action must
also be considered once it is determined that the proposed agency action significantly
affects the physical environment. In particular, NEPA directs federal agencies to
prepare "a detailed statement" evaluating the environmental impact of a proposed
agency action and possible alternatives to the proposed action before the agency takes
any action that will "significantly affect[] the quality of the human environment." 42
U.S.C. § 4332(2)(C). The regulations implementing NEPA mandate that the term
"'[h]uman environment' shall be interpreted comprehensively to include the natural and
physical environment and the relationship of people with that environment." 40 C.F.R.
§ 1508.14. The regulation further explains:
This means that economic or social effects are not intended by themselves
to require preparation of an environmental impact statement. When an
environmental impact statement is prepared and economic or social and
natural or physical environmental effects are interrelated, then the
environmental impact statement will discuss all of these effects on the
human environment.
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Id.
Other explicit policies of NEPA on which the Outfitters rely state that its
protections are meant to "assure for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings," 42 U.S.C. § 4331(b)(2); to "achieve
a balance between population and resource use which will permit high standards of
living and a wide sharing of life's amenities," id. § 4331(b)(5); and "to create and
maintain conditions under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present and future generations of
Americans." Id. § 4331(a) (emphasis added). Additionally, the regulations
implementing NEPA require an agency to consider the impact of agency action "in
several contexts such as society as a whole (human, national), the affected region, the
affected interests, and the locality." 40 C.F.R. § 1508.27(a). Agencies considering
significant action are required to examine, inter alia, the "historic, cultural, economic,
social, or health [effects of agency action], whether direct, indirect, or cumulative." Id.
§ 1508.8; see also id. § 1502.16(a),(b).
The Outfitters claim that they have standing because the Final EIS fails to
consider adequately the economic impact on local economies and the Final EIS is based
on flawed data or an incomplete analysis of alternative plans. These concerns are
explicitly referenced in the provisions of NEPA, which the Forest Service has applied
in this case, and its implementing regulations. Pursuant to NEPA, the Forest Service
prepared an exhaustive 312-page environmental impact statement, discussing and
comparing the range of alternatives available, the affected environment (including the
natural ecosystem, the human ecosystem, the economic setting and the social setting),
and the environmental consequences of each alternative plan of agency action. In
several contexts, the Final EIS discusses the economic setting and the economic
implications of the available alternatives. Additionally, the Outfitters assert their own
inability to fully enjoy the BWCA Wilderness as a result of the visitor use restrictions,
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a claim which is closely related to the physical environment and which the Final EIS
addresses. Thus, we conclude that the Outfitters' claims are all arguably within the zone
of interests protected by NEPA, and the Outfitters have prudential standing to assert
their NEPA claims.
The defendants assert that the language of Metropolitan Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 772 (1983), supports their contention that the
Outfitters lack standing under NEPA. In a discussion concerning the overall threshold
applicability of NEPA, the Supreme Court stated, "NEPA was designed to promote
human welfare by alerting governmental actors to the effect of their proposed actions
on the physical environment." Id. The Court continued, explaining that "although
NEPA states its goals in sweeping terms of human health and welfare, these goals are
ends that Congress has chosen to pursue by means of protecting the physical
environment." Id. The defendants especially cling to the following statement of the
Court: "If a harm does not have a sufficiently close connection to the physical
environment, NEPA does not apply." Id. at 778. The defendants assert that the
economic injury claimed by the Outfitters is not closely related to the physical
environment, and therefore it does not state an injury within the meaning of NEPA. The
reasoning offered by the defendants simply does not apply in the case at hand. We agree
that the Court in Metropolitan Edison indicates clearly that despite the broadly stated
policies of NEPA, NEPA's protections do not apply unless the harm is closely related
to the physical environment. Nevertheless, the present case does not involve the
threshold applicability of NEPA as did Metropolitan Edison.
In the present case, the threshold applicability of NEPA is not contested; rather,
the agency assumed NEPA applied because the agency action significantly affects the
physical environment of the BWCA Wilderness. The agency accordingly prepared an
EIS and made factual findings on this basis. We view this case as more akin to Bennett,
where the plaintiffs challenged a biological report on grounds that it adversely affected
their economic interests under the Endangered Species Act. There was no
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question about the applicability of the Act. Instead, the question focused on standing
to challenge the report on which the agency relied. The Court stated that to determine
whether the plaintiff's economic interest is arguably protected by the statute for purposes
of the zone-of-interests test, courts must consider "the particular provision of law upon
which the plaintiff relies," not the overall purpose of the Act in question. Bennett, 117
S. Ct. at 1167. The Court held that the Endangered Species Act included an explicit
concern for economic consequences, which provided standing for the petitioners. Id.
at 1168.
From this analysis, we conclude that although Metropolitan Edison supports the
proposition that the sweeping purposes of NEPA do not, as a threshold matter, bring
NEPA's procedures into play unless an environmental injury is at stake, Bennett
indicates that once those procedures have been invoked, the plaintiffs can assert an
injury arising from the agency's failure to take into consideration the particular purposes
or provisions of the statute at issue -- in this case, NEPA.
As illustrated above, the Outfitters have asserted particular provisions of NEPA
which encompass the claims they set forth in their complaint. We need not consider
whether the Outfitters are in fact more concerned with economics than with the welfare
of the physical environment. Regardless of their true intent, they have standing to
ensure that the agency adequately considers all of the statutorily referenced concerns
when balancing the relevant factors in the Final EIS. See Mountain States Legal Found.
v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir. 1996) ("NEPA standing is not limited to the
pure of heart") (internal quotations omitted). We hold that the Outfitters have standing
to challenge the Final EIS on the grounds stated in their complaint because these claims
are arguably within the zone of interests protected by NEPA.
E. Merits of NEPA Claims
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Having concluded that the Outfitters have standing to bring their NEPA claims,
we must determine whether a remand is necessary for resolution of the merits of the
NEPA claims. The Outfitters' complaint alleges claims that the Final EIS for the
Wilderness Plan failed to consider adequately all available alternatives, the available
data, the economic effects of the Plan on the local communities, and the impact of
restricting visitor use on their own use of the area. In their opening brief, the Outfitters
do not offer argument on the merits of these NEPA claims but seek a remand to allow
the district court to determine the merits in the first instance. In their reply brief
answering the defendants' arguments that NEPA was complied with and that this court
can affirm the district court on any ground supported in the record, the Outfitters
advance arguments on the merits of these claims yet still request a remand to the district
court for a decision on the merits.
We do review the district court's grant of summary judgment de novo, and we
may affirm the grant of summary judgment on any basis supported by the record. Hall
v. Lhaco, Inc., 140 F.3d 1190, 1193 (8th Cir. 1998). Because the Outfitters do not assert
that additional evidence is necessary to resolve their NEPA claims, we will consider the
NEPA claims on their merits rather than remand to the district court. When reviewing
the sufficiency of an EIS under NEPA, an appeals court is "in as good a position as the
district court to determine on the undisputed facts what could reasonably be demanded
of the EIS in issue." County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1375
(2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978).
Our role "in reviewing the sufficiency of an agency's consideration of
environmental factors is a limited one." Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 555 (1978). We are not free
to substitute our judgment for that of the agency. Id. We may set aside an agency
decision in this context only if the agency action fails to conform to one of the relevant
standards of review articulated in the APA. See 5 U.S.C. § 706 (providing that
reviewing court shall hold agency action unlawful if the agency action is arbitrary and
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capricious or an abuse of discretion; in excess of statutory jurisdiction; without
observance of procedure required by law; or unsupported by substantial evidence); see
also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-76 & n.21 (1989)
(applying the arbitrary and capricious standard to an agency determination that an EIS
need not be supplemented). When the resolution of the dispute involves primarily issues
of fact and analysis of the relevant information "requires a high level of technical
expertise, we must defer to the informed discretion of the responsible federal agencies."
Marsh, 490 U.S. at 377 (internal quotations omitted).
NEPA requires "that the agency take a 'hard look' at the environmental
consequences" of a project before taking a major action. Baltimore Gas & Elec. Co. v.
Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983). The statute requires
a "detailed statement," 42 U.S.C. § 4332(2)(C), "from which a court can determine
whether the agency has made a good faith effort to consider the values NEPA seeks to
protect." Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th
Cir. 1976), cert. denied, 430 U.S. 922 (1977). "[T]he statement must not merely catalog
environmental facts, but also explain fully its course of inquiry, analysis and reasoning."
Id. "The role of the courts is simply to ensure that the agency has adequately considered
and disclosed the environmental impact of its actions and that its decision is not arbitrary
or capricious." Baltimore Gas & Elec., 462 U.S. at 97-98. Adequate agency
consideration is evidenced through the EIS's form, content, and preparation.
Association of Pub. Agency Customers v. Bonneville Power Admin., 126 F.3d 1158,
1183 (9th Cir. 1997). We need not "fly speck" an EIS for inconsequential or technical
deficiencies. Dubois v. United States Dep't of Agric., 102 F.3d 1273, 1287 (1st Cir.
1996), cert. denied, 117 S. Ct. 2510 (1997). Instead, we consider "whether the agency's
actual balance of costs and benefits was arbitrary or clearly gave insufficient weight to
environmental values." Minnesota Pub. Interest Research Group, 541 F.2d at 1300.
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The Outfitters first contend that the Final EIS must be set aside because it failed
to include all reasonable alternatives. An EIS must discuss alternatives to the proposed
action. 42 U.S.C. § 4332(2)(C)(iii). NEPA requires federal agencies to "study, develop,
and describe appropriate alternatives to recommended courses of action in any proposal
which involves unresolved conflicts concerning alternative uses of available resources."
42 U.S.C. § 4332(2)(E). We review the agency's choice of which alternatives to discuss
and the extent to which the EIS must discuss them under the "rule of reason." City of
Carmel-By-The-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir.
1997). Guided by the "rule of reason," we consider whether the EIS "has been compiled
in good faith" and adequately sets forth sufficient information to allow the decision-
maker to consider alternatives and make a reasoned decision after balancing the risks
of harm to the environment against the benefits of the proposed action. County of
Suffolk, 562 F.2d at 1375. Finally, courts have held that while the EIS need not be
exhaustive, "[t]he existence of a viable but unexamined alternative renders an
environmental impact statement inadequate." Dubois, 102 F.3d at 1287.
Specifically, the Outfitters contend that the Forest Service intentionally limited
the alternatives it considered by not creating a plan that distributes use in specific areas,
by considering only one alternative that provided for increases in visitor use, and by
considering only one alternative that provided an increase in overnight entry quotas.
The Outfitters complain that the Forest Service had a predisposition toward alternatives
that would reduce visitor use.
Having reviewed the Final EIS and the agency findings, we conclude that the
Final EIS is adequate to satisfy the requirements of NEPA. The Final EIS, as noted
above, is a very long and detailed document. It provides ten alternative plans of agency
action and states that the alternatives are based on visitor use levels and the effects of
visitor use. (See Final EIS at 2-2, Outfitters' App. at 126, stating that "the range of
alternatives developed and considered in this EIS relates to visitor use levels.") The
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Final EIS explains that two alternatives were considered but eliminated from detailed
study. One was a plan eliminating all visitor use from the area, which the agency found
to be not practical; and the other was a plan allowing maximum visitor use, which the
agency found would lead to widespread environmental degradation and would not
provide visitors the opportunity for a wilderness solitude experience. Nevertheless, one
of the viable alternative plans considered increased visitor use and another considered
increased overnight entry quotas. Additionally, one alternative considered the current
visitor use levels, and one considered redistributing the current level of visitor use.
Other alternatives considered lowering visitor use beyond the level adopted as the final
preferred plan. The Final EIS states that there is currently too much visitor use in some
areas on some days, which results in excessive erosion, disturbed water quality and
wildlife, diminished campsite availability, and a lack of solitude in some areas. (Final
EIS at 1-6 - 1-7; Outfitters' App. at 122-23.) This adequately explains the lack of any
further study on increasing visitor use. While the Outfitters complain that the Final EIS
does not consider more alternatives that include increased visitor use, they present no
reasons why increased visitor use should be considered a viable alternative. Neither do
the Outfitters contend that additional evidence is necessary to demonstrate what
environmental alternatives the agency ignored. See County of Suffolk, 562 F.2d at 1384
(indicating that it is sometimes necessary to look "outside the administrative record to
see what the agency may have ignored"). Further, the Final EIS indicates, and the
Forest Service found, that the current visitor use levels are beginning to strain the
viability and solitude of the wilderness area and to degrade the intended primitive
recreational experience. In light of this data and these findings, we fail to see how
further consideration of increased visitor use levels, as urged by the Outfitters, would
serve to "attain the widest range of beneficial uses of the environment without
degradation," within the meaning of the statute. 42 U.S.C. § 4331(b)(3). There is no
need for the agency to pursue alternatives that are contrary to the goals of the statute.
Second, the Outfitters contend that the Forest Service used inadequate data when
deciding to limit the size of traveling groups to nine persons and four canoes. The
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allegedly flawed data consists of (1) statistics concerning the number of visitors who are
dissatisfied by the number of other visitors they encounter in the wilderness and (2) the
use of a travel zone computer model and study of visitor traffic, which they assert
amounts to a series of unverified assumptions used to reduce campsite occupancy levels.
The Outfitters offer little to support their assertion that the Final EIS relies on flawed
data. They cite to a study relied on by the Forest Service and attempt to contrast it with
a 1988 survey by the same researcher. Even assuming the data was flawed in some
respects, this one study was not the only source of information used by the Forest
Service in compiling the Final EIS. "When an agency relies on a number of findings,
one or more of which are erroneous, we must reverse and remand only when there is a
significant chance that but for the errors the agency might have reached a different
result." National Parks and Conservation Ass'n v. FAA, 998 F.2d 1523, 1533 (10th
Cir.1993). The alleged flawed data deals with the number of campers who were
satisfied or dissatisfied with their trip through the BWCA Wilderness, and clearly many
more considerations went into the Final EIS than the satisfaction of visitors. The
asserted flaw in how many were satisfied would not create a significant chance of a
different result in this case.
As to the criticism of the computerized travel zone model, we note that the Final
EIS itself includes a discussion of the benefits and possible pitfalls of this type of model.
The Final EIS notes that the model was fully updated, that it takes into account travel
patterns and length of stay, and that planners interpret the results to avoid extreme
results that might otherwise be produced by the model in some instances. We defer to
the agency's choice of methodology as long as it is not arbitrary or without foundation.
See Minnesota Pub. Interest Research Group, 541 F.2d at 1302. We may not second-
guess the values assigned to the environmental impacts considered in an agency study;
and NEPA does not anticipate that courts will determine the merits of conflicting views
between two or more schools of scientific thought. Id. It is not the role of this court to
choose between differing studies or differing expert views. We defer to the agency's
reasoned explanation. "NEPA does not require that we decide
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whether an EIS is based on the best scientific methodology available, nor does NEPA
require us to resolve disagreements among various scientists as to methodology."
Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 496 (9th Cir. 1987) (internal
quotations and alterations omitted). "Our task is simply to ensure that the procedure
followed by the agency resulted in a reasoned analysis of the evidence before it, and that
the agency made the evidence available to all concerned." Id. (internal quotations and
alterations omitted). It is not for this court to second-guess what is the best method of
determining visitor satisfaction in the BWCA Wilderness, nor is it this court's role to
scrutinize the scientific value of the computerized model. We are satisfied that the
agency followed proper procedures, accumulated data, and explained the information
in ways that permitted a reasoned analysis of the evidence for all concerned. The
Outfitters' bare assertion that the model was "seriously flawed" (Outfitters' Reply Br. at
16) is not a sufficient basis on which this court will disregard the agency's methodology.
Accordingly, we defer to the agency's choice of procedures and methods.
Third, the Outfitters contend that the Final EIS is inadequate because it identifies
but fails to sufficiently evaluate all of the significant social and economic effects of the
final Wilderness Plan. The Outfitters assert that the Final EIS concludes that the
proposed Plan will have no adverse effect on the local economy without offering a
reasoned explanation in support of this conclusion. To the contrary, the Final EIS
devotes a great deal of discussion to the economic effects on the local communities of
each alternative, including the potential job loss and the impact on local businesses.
Concerning the final Wilderness Plan alternative, the EIS concludes that "a group size
of 9 is sufficiently cost efficient to implement with little or no adverse economic impact
on the local economy." (Final EIS at 4-48; Outfitters' App. at 222.) Prior to stating this
conclusion, however, the Final EIS discusses the cost of this alternative, the recreational
net value of reducing party size, and the amount of money and jobs lost in the local
economy from the proposed plan, finding the total impact to be approximately .09% of
the area economy. (Id.)
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The Outfitters present affidavits from individual businessmen contesting this
approximation of the economic impact, describing their business losses due to the final
Plan. These select businessmen may feel the effect more concretely than others, but
their affidavits do not discredit the Final EIS, which was based on this type of public
comment as well as economic studies. The Final EIS states that in 1992, a draft EIS was
released for public comment and was changed in response to those comments. The
Outfitters also suggest that the Final EIS ignores a study by economist Jerrold M.
Peterson, but the defendants and the Environmentalists contend that this study was
flawed by improper assumptions. The draft EIS was based on an economic study by this
same person. In our view, the Final EIS adequately discusses the impact on local
economies.
Our review of the Outfitters' NEPA claims and the record before us convinces us
that the Final EIS "contains a reasonably thorough discussion of the significant aspects
of the probable environmental consequences," and we conclude that the Final "EIS's
form, content and preparation foster both informed decision making and informed public
participation." Association of Pub. Agency Customers, 126 F.3d at 1183. We conclude
that the Final EIS adequately considers the environmental, recreational, social, and
economic impacts of the Wilderness Plan, and that the Forest Service's use of
methodologies, studies, and data was not arbitrary or capricious.
III. Conclusion
For the reasons stated above, we reverse the district court's grant of summary
judgment to the defendants on the issue of defining the phrase, "that particular lake."
Summary judgment should be entered in favor of the Environmentalist plaintiffs on that
claim. We disagree with the district court's conclusion that the Outfitters lack standing
to bring their NEPA claims, but we affirm the district court's grant of summary
judgment after considering the merits of the NEPA claims. In all other respects, we
affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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