Sierra Club v. Wagner

United States Court of Appeals
For the First Circuit
No. 08-1978
SIERRA CLUB, CENTER FOR BIOLOGICAL DIVERSITY,
and THE WILDERNESS SOCIETY,
Plaintiffs, Appellants,
v.
THOMAS WAGNER, in his official capacity as Forest Supervisor of
the White Mountain National Forest; ABIGAIL KIMBELL, in her
official capacity as Chief of the United States Forest Service;
EDWARD T. SCHAFER, in his official capacity as Secretary of the
United States Department of Agriculture; and the UNITED STATES
DEPARTMENT OF AGRICULTURE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Selya and Stahl,
Circuit Judges.
Kristin A. Henry, with whom Eric E. Huber and Bradford W.
Kuster were on brief for appellants.
Charles R. Scott, United States Department of Justice,
Environment & Natural Resources Division, with whom Cynthia S.
Huber and Mark R. Haag, United States Department of Justice,
Environment & Natural Resources Division, and Ronald J. Tenpas,
Assistant Attorney General, were on brief for appellees.
February 6, 2009
BOUDIN, Circuit Judge. The Sierra Club, along with two
other conservation groups (for simplicity we refer only to the
Sierra Club), challenges the Forest Service's approval of two
forest resource management projects in the White Mountain National
Forest ("Forest" or "WMNF"): the Than Forest Resource Management
Project ("Than Project") and the Batchelder Brook Vegetation
Management Project ("Batchelder Project"). The district court's
decision, upholding the Forest Service, provides detailed
background, Sierra Club v. Wagner, ___ F. Supp. 2d ___, 2008 WL
2336902, at *1-5 (D.N.H. Jun. 6, 2008), which we summarize here.
The Forest Service, an agency of the U.S. Department of
Agriculture, is responsible for national forests. The National
Forest Management Act ("NFMA"), 16 U.S.C. §§ 472a, 521b, 1600 et
seq. (2006), provides for management of national forests at two
levels, the programmatic (or plan) level and the project level
(where the Forest Service implements the broader programs and goals
laid out in the forest plan). Ohio Forestry Ass'n v. Sierra Club,
523 U.S. 726, 729-30 (1998).
All projects within a forest must comply with the overall
plan for that forest, 16 U.S.C. § 1604(i), which is revised
periodically, id. § 1604(f)(5). The governing White Mountain
National Forest Land and Resource Management Plan was most recently
revised and adopted in September 2005 ("the 2005 Plan"). The 2005
Plan was revised pursuant to the 1982 forest service regulations
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("the 1982 rules"), which could still permissibly be considered for
Plan revisions when the new plan was adopted. See 36 C.F.R. §
219.35(b).
The White Mountain National Forest covers almost 800,000
acres in northern New Hampshire and western Maine. The governing
2005 Plan promotes multiple uses for the Forest including
recreation, timber harvesting, and preservation of wildlife and
wilderness, as required by the NFMA. 16 U.S.C. §§ 1604(a), (e).
The 2005 Plan classifies approximately 281,000 acres in the WMNF as
appropriate for harvesting timber, but currently harvesting is
allowed only on roughly 3,400 acres annually, a tiny fraction of
the forest.
During the 2005 Plan revision process, the land was
inventoried to determine whether it qualified as "roadless." 36
C.F.R. § 219.17(a) (1983). In the eastern United States, to
qualify as roadless, land must meet certain environmental standards
including very few constructed roads or recent timber harvesting.1
Twenty-seven areas, totaling 403,000 acres, met these criteria and
comprise inventoried roadless areas ("IRA's"), which can be
designated by Congress as Wilderness Areas, thereby affording the
1
To qualify requires a natural, untrammeled appearance;
improvements in the area must be disappearing or muted; the
location must be conducive to perpetuating wilderness values; the
area may contain no more than one-half mile of improved road for
each 1,000 acres; and only twenty percent or less of the area may
have been the subject of timber harvesting within the past ten
years. Forest Serv. Handbook 1909.12, § 7.12 (1992).
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lands special protection, 16 U.S.C. § 1132(b). The Forest Service
recommended that Congress so designate 34,500 acres over and above
the 114,000 acres previously protected.
After adoption of the 2005 Plan, the Forest Service
evaluated various management areas within the Forest to determine
what new projects were required to achieve the 2005 Plan goals. It
determined, for the areas encompassing the Than and Batchelder
projects, that more diverse habitats, including new vegetation in
younger age classes, were needed and that it would be beneficial to
harvest some mature trees to create room for younger trees
(creating what is known as early successional habitat).
Ultimately the Forest Service proposed to allow timber
harvesting of approximately 929 acres in the Than project,
creating up to 231 acres of early successional habitat. Some
existing roads would receive maintenance or reconstruction, and a
500 foot section of new road was planned. Part of this project
would affect the Wild River Inventoried Roadless Area, including
464 acres of timber harvesting in that area.
The other proposed action, the Batchelder Project,
involved harvesting on 380 acres, including 139 acres within the
South Carr Mountain Inventoried Roadless Area. The Project
requires no new road construction, but does authorize maintenance
on approximately three miles of road, one-half mile of which is
located in the South Carr Mountain IRA.
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The National Environmental Policy Act ("NEPA"), 42 U.S.C.
§ 4321 et seq., obligates agencies such as the Forest Service to
evaluate the environmental impacts of its proposed actions. Dubois
v. U.S. Dep't of Agriculture, 102 F.3d 1273, 1284 (1st Cir. 1996),
cert. denied sub. nom. Loon Mtn. Recreation Corp. v. Dubois, 521
U.S. 1119 (1997). To comply with NEPA, the Forest Service was
first required to determine whether either the Than or the
Batchelder Project would have a significant environmental impact.
40 C.F.R. § 1501.4 (2007); Save Our Heritage, Inc. v. F.A.A., 269
F.3d 49, 57 (1st Cir. 2001).
A detailed environmental impact statement ("EIS") is
required whenever proposed actions will "significantly affect the
quality of the human environment." 42 U.S.C. § 4332; 40 C.F.R. §§
1502.1, 1502.14; Dubois, 102 F.3d at 1285. If uncertain about
impact, the agency may start with a less detailed Environmental
Assessment ("EA"); 40 C.F.R. § 1501.3. If the EA finds a
significant impact, a full EIS must be prepared; if not, the agency
makes a "Finding of No Significant Impact" ("FONSI"), which
exhausts its obligation under NEPA. Id. §§ 1501.4, 1508.9,
1508.13.
The Forest Service prepared an EIS in connection with the
2005 Plan revision and it was also required to prepare either an
EIS or EA for both the Than and Batchelder projects. 40 C.F.R. §
1501.4; see also Blue Mountains Biodiversity Project v. Blackwood,
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161 F.3d 1208, 1214 (9th Cir. 1998), cert. denied, 527 U.S. 1003(1999). Under the 2005 Plan, specific projects' environmental
analyses may incorporate by reference ("tier") information that is
in the Plan EIS, so an EA need not start from scratch. 40 C.F.R.
§ 1508.28.
The Forest Service prepared an initial EA for the Than
Project in May 2006 but, after an administrative appeal, issued in
November 2006 a revised EA for public comment. After receiving
comments and after an injunction deferred the operation of new
Forest Service rules relied on in the November 2006 draft, the
Forest Service revised the EA and issued the final Than EA in April
2007.
Despite certain possible adverse effects of the Than
Project on the Wild River Inventoried Roadless Area--including
sediment inputs to streams, some soil disturbance, and effects on
stream temperature--the Forest Service concluded that the project
would
not significantly alter the character of the
area or the qualities which qualified it for
inclusion in the inventory . . . because the
harvests are of limited intensity and minimal
road systems will be used [and that there
would be no] lasting or significant effect on
the roadless character of the area.
It issued a FONSI and thereafter denied the Sierra Club's
administrative appeal.
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As for the Batchelder project, an initial EA draft was
withdrawn when the initial Than EA was set aside; a revised EA was
issued in December 2006 for public comment followed by a final EA
and a revised decision notice with a FONSI in May 2007. The FONSI
conceded certain potential adverse effects (on wildlife and
possible sedimentation of streams), but concluded that no
significant impact would result on the South Carr Mountain Area's
roadless or wilderness characteristics. A Sierra Club
administrative appeal was thereafter denied.
In August 2007, the Sierra Club filed a complaint in the
district court challenging the Than Project. It amended its
complaint to incorporate claims regarding the Batchelder Brook
Project in October 2007. On cross-motions for summary judgment,
the district court upheld the Forest Service's actions, granted the
Forest Service's motion and denied Sierra Club's. We denied a stay
pending appeal but expedited the case.
On appeal, Sierra Club claims error by the Forest Service
in several respects. We review questions of law de novo, WorldNet
Telecommunications, Inc. v. Puerto Rico Telephone Co., 497 F.3d 1,
5 (1st Cir. 2007), but are deferential to the agency in its
interpretation of its own rules, Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, 467 U.S. 837, 843-44 (1984), and in judgment
calls as to the likely impact of proposed actions. Associated
Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.
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1997). The latter, reflected in the FONSI findings, are to be
upheld unless arbitrary and capricious. Marsh v. Oregon Natural
Res. Council, 490 U.S. 360, 374, 376 (1989); see also 5 U.S.C. §
706(2)(A).
Sierra Club argues first that the Forest Service erred by
applying the "best available science" standard found in the Forest
Service rules, adopted in 2000, see 36 C.F.R. § 219.35(a) (2001),
to its evaluation of the Than and Batchelder Brook projects, rather
than a set of rules adopted in 1982. One might think from the name
that "best available science" is an unexceptionable standard, but
according to Sierra Club, the 1982 rules provided a set of precise
tests for evaluating a project's impact on species that are more
rigorous and were intentionally weakened by the 2000 rules.
Its brief provides a short description of the difference
and, as the characterization is not denied by the Forest Service's
brief, we will assume it to be true. See Forest Watch v. U.S.
Forest Serv., 410 F.3d 115, 116-17 (2d Cir. 2005). However, Sierra
Club's brief fails to explain whether or how the allegedly more
rigorous standards of the 1982 rules would likely have altered the
Forest Service's ultimate evaluation of the two projects. This may
not derail the argument but it reduces one's enthusiasm for it.
In all events, Sierra Club contends that the 1982 rules
apply in this case, and understanding the argument requires a brief
excursion. When the new 2000 NFMA rules were announced, their
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transition provision deferred many of the new rules until November
2003 (a date thereafter extended)2; but the provision said that
effective immediately the Forest Service "must consider the best
available science in implementing . . . the current plan." 36
C.F.R. § 219.35(a). The parties take this language to supercede
the allegedly more stringent 1982 rules on species evaluation, but
disagree as to whether the transition provision covers the two
projects in issue here.
Sierra Club argues that the plain language of the
transition provision applies only to forest plans that were
"current" when the transition provision was adopted in 2000. See
Utah Environmental Congress v. Troyer, 479 F.3d 1269, 1272-74 (10th
Cir. 2007). And, the argument goes, the 2005 Plan for the forest
(which had been implemented when the two projects were approved)
was not "current" in 2000. The Forest Service counters that Sierra
Club waived this argument because it was not presented to the
district court.
Ordinarily, arguments not raised in the district court
cannot be raised for the first time on appeal. E.g., Boston
2
The extensions continued until January 2005 when a revised
set of rules were adopted, which (according to Sierra Club) are
even weaker in protecting the environment; but they have been
enjoined nationwide pendente lite, Citizens for Better Forestry v.
U.S. Dep't of Agriculture, 481 F. Supp. 2d 1059, 1100 (N.D. Cal.
2007), so prior rules, including the 2000 transition provision,
seemingly remain in effect for the present. See Action on Smoking
& Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir.
1983).
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Celtics Ltd. P'ship v. Shaw, 908 F.2d 1041, 1045 (1st Cir.1990).
Sierra Club agrees that it did not raise its "current plan"
argument in the district court but says that it did there oppose
the "best available science" standard on other grounds and this is
enough to allow us to consider its new legal theory in support of
the same result. This is a misunderstanding of the requirements
for preserving issues for review.
We can affirm a judgment on a legal ground not relied
upon in the district court, Plymouth Sav. Bank v. I.R.S., 187 F.3d
203, 209-10 (1st Cir. 1999)--after all, why send the case back if
the result was right--but it is altogether different to reverse a
judgment on a ground never raised in the lower court. See In re
Boston Reg'l Med. Ctr., 291 F.3d 111, 125 n.16 (1st Cir. 2002). We
may ourselves choose to consider newly minted arguments from the
parties, or devise them ourselves, but this is not an entitlement
of the parties.3 See, e.g., United States v. La Guardia, 902 F.2d
1010, 1013 (1st Cir. 1990)).
In sum, the Sierra Club has forfeited the argument, and
we decline to consider it. The 2005 rules have been enjoined but
3
For example, we may choose to hear an argument not raised
below in “cases that involv[e] important constitutional or
governmental issues [which are] exceptional . . . and, as such
[warrant] a full legal treatment of all legal issues involved,
whether squarely introduced by the parties or not.” TI Fed. Credit
Union v. DelBonis, 72 F.3d 921, 930 (1st Cir. 1995) (citing Nat'l
Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628 (1st
Cir.1995)).
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to return to the 1982 rules, instead of the 2000 transition
provision, is not appealing where, as here, Sierra Club has not
troubled to explain why the outcome would change (delay aside) if
the 1982 rules were applied. Nor do we find the Forest Service's
reading of the transition provision patently wrong, a circumstance
that might help persuade us to excuse the forfeiture.
Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1281 (10th
Cir. 2007), agrees with Sierra Club's belated argument--indeed,
probably prompted it--but Troyer is quite possibly wrong in
thinking the word "current" can yield only one meaning. And Troyer
is at odds with a 2004 interpretive rule issued by the Forest
Service, 69 Fed. Reg. 58055, 58057 (2004),4 ordinarily entitled to
"substantial deference" where the subject is "the agency's
interpretation of its own regulations." N. Wind, Inc. v. Daley,
200 F.3d 13, 17 (1st Cir. 1999).
Next, Sierra Club contends that the Than Project EA was
based on the Management Indicator Species Provision of the 2005
rules, 36 C.F.R. § 219.14(f) (2005), which were enjoined nationwide
in March 2007. See Citizens for Better Forestry, 481 F. Supp. 2d
at 1100. Admittedly, the final Than Project EA says once that
"[t]he analysis of MIS [the species analysis] was undertaken in the
4
The rule, directly addressing the claim now advanced by the
Sierra Club as to the meaning of its transition rule, states that
"the best available science" standard should be used in
"implementing national forest land management plans." 69 Fed. Reg.
at 58,056.
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context of 36 C.F.R. § 219.14(f)" [which is only found in the
enjoined 2005 rules]. Below, the Forest Service disclaimed this
reference as a typographical error--and the district court agreed.
It appears that when the revised draft Than EA was
published for public comment in 2006, the 2005 rules had been
adopted as a rewriting of the long deferred 2000 rules. Once the
injunction against the 2005 rules issued, the Forest Service
removed almost all of the references in the draft to the 2005 rules
and issued the final Than Project EA shortly thereafter, relying
instead on the 2000 transition provision's "best available science"
standard. But, says the Forest Service, the one reference to the
2005 rules was missed in the clean-up.
This is hardly the "post hoc rationalization" claimed by
Sierra Club, see NRDC v. U.S. Envtl. Prot. Agency, 824 F.2d 1258,
1286 n.19 (1st Cir. 1987), since the agency itself identified the
typographical error as such in denying Sierra Club's administrative
appeal and the explanation is therefore part of the administrative
record. Nor does Sierra Club provide any reason to doubt the
Forest Service's explanation. So the citation may fairly be
treated as a typographical error; but this is not automatically
dispositive.
Had the revised draft Than EA relied on the 2005 rules in
any way critical to the outcome, Sierra Club might well have an
argument--regardless of missed citations--that the Than Project EA
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could not be saved by an overnight mechanical deletion of specific
references. But whatever weakening attended the 2005 rules, Sierra
Club has not shown that those rules were pertinently less demanding
than the 2000 rule's "best available science" standard. Instead,
the distinctions it draws are between the 1982 rules and the 2000
rules, which is not the relevant comparison.
Sierra Club also contends that because the 2005 rules
were enjoined by a district court, the 1982 rules went back into
effect. Had we in fact found that the 2000 rules did not apply,
this argument would have merit. See Action on Smoking & Health,
713 F.2d at 797 (holding that where one agency rule is invalidated
the previous rule in force applies). However, because we hold the
best available science standard applied, that portion of the 2000
rules went back into effect when the 2005 rules were enjoined.
Sierra Club next says that the EAs were inconsistent in
identifying which rules governed and did not explicitly use the
"best available science" standard on which the Forest Service now
relies. Sierra Club's argument rests heavily on the Second
Circuit's opinion in Forest Watch v. U.S. Forest Service, 410 F.3d
115, 119 (2d Cir. 2005), which held that Forest Service's failure
to "consider or mention the 'best available science' standard" in
implementing two site-specific projects amounted to conduct that
was arbitrary and capricious.
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In fact, the Batchelder EA did refer to the best evidence
standard, the Forest Service says that the Than EA complied with it
in substance and the FONSIs for the projects state the Forest
Service relied on the "best available science"--all consistent with
the Forest Service's view of the 2000 transition provision. By
contrast, in Forest Watch, the EAs and the FONSIs made no reference
to "best available science" and, more significant, there were
repeated citations to the 1982 rules. Forest Watch, 410 F.3d at
119.
On top of all this, it is not clear why references to
"best available science" matter: unlike Forest Watch, there is no
indication here that the Forest Service invoked the 1982 rules,
allegedly misapplied them and is now claiming that it used the
newer standard instead. Of course, Sierra Club could point us to
some specific substantive dispute and then argue the science relied
upon by the agency was not "the best." But Sierra Club identifies
no such controversy in this case.
Sierra Club next argues that even if the 1982 rules did
not apply to the Than and Batchelder projects by their own force,
they apply because the Forest Service chose to revise the 2005
Forest Plan so as to incorporate the 1982 rules for future site-
specific projects. The Forest Service agrees that the conclusion
would follow if the premise were correct, see Troyer, 479 F.3d at
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1282; but it denies that the 2005 Plan adopted the 1982 rules as
requirements for subsequent projects like Than and Batchelder.
The district court found that the 2005 Plan did not
"specifically incorporate" the 1982 rules and so they did not apply
under an "adoption" theory to the Than and Batchelder Brook
projects. Wagner, 2008 WL 4560669, at *11. The 2005 Plan does
refer to the 1982 rules on several different occasions, notably
several references to "MIS Monitoring." But the 2005 Plan does not
say that the 1982 rules govern plan projects; in fact, it states
that "[t]he regulations do not require MIS monitoring on every
project."
In addition to its "wrong rules" arguments, Sierra Club
objects to the Forest Service's substantive finding that the Than
and Batchelder projects would have no significant impact on the
environment. This is an argument that one might think could have
promise because the two projects are not trivial and the Forest
Service itself conceded that there would be some negative effects.
But Sierra Club's own arguments do not seriously undermine the
FONSI findings.
A substantive attack on an impact assessment is not easy.
The Council on Environmental Quality ("CEQ") and case law standards
for "significance" are (perhaps inevitably) general, and courts
have good reason to take seriously the deference due to the agency
in technical and scientific matters. Kleppe v. Sierra Club, 427
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U.S. 390, 410 n.21 (1976); see also Sierra Club v. Marsh, 769 F.2d
868, 871 (1st Cir. 1985) (Breyer, J.). Ordinarily, the attack has
to start by explaining just what harms might result and make, in
the Third Circuit's words,
at least some effort . . . to advance specific
allegations that the agency . . .
misinterpreted the evidence, overlooked
certain testimony, or unreasonably reached its
'no significant impact determination.'
Lower Alloways Creek Twp. v. Pub. Serv. Elec. & Gas Co., 687 F.2d
732, 747 (3d Cir. 1982).
The Forest is almost 800,000 acres and has a history of
mixed uses included timber harvesting. The Than Project involves
timber harvesting, subject to maximum amounts, on 929 acres, with
clear cutting for new timber on up to 231 acres; Batchelder Brook
Project involves harvesting on 380 acres; some of the harvesting in
each case is in inventoried roadless areas. Than requires 500 feet
of new road; Batchelder none. On an order of magnitude basis these
do not seem like negligible enterprises but--without more--neither
are they self-evidently "significant" in potential negative impact.
Yet Sierra Club makes only a single concrete point as to
immediate harm: it argues that harvesting, especially clear cutting
for new growths, creates visual scars visible even from outside the
area; that the Forest Service concedes that the effects could
endure for a decade or two; and that in California v. Block, 690
F.2d 753, 763 (9th Cir. 1982), the court said that "[t]he 'critical
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decision' to commit [roadless] areas for nonwilderness uses, at
least for the next ten to fifteen years, is 'irreversible and
irretrievable.'"
Block, very different from this case, involved a decision
by the Forest Service to "command that [certain roadless areas
nationwide] be used for non-wilderness purposes" without troubling
to "assess the wilderness value of each area [that would have been
allocated] and to evaluate the impact of Nonwilderness designations
upon each area's wilderness characteristics and value." Id. at
764. Here we have a narrow judgment that neither of the two
precisely defined projects will have a "significant" adverse
effect.
In estimating duration, the Forest Service was talking
only of the visual effect from clear-cutting, which diminishes over
time and a more complete version of its verdict is that the effects
"should not be noticeable to the untrained eye within a decade or
two." If so, the visual blight would begin to be dissipating
almost from the start. So, too, harvesting would disturb solitude;
but this would be primarily limited to the period in which
harvesting was occurring.
It is perhaps more troubling that the Forest Service EAs
also conceded that there would or could be negative effects from
sedimentation in waters due to erosion and other effects from
logging and that disturbances could harm both water and wildlife.
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Still, mitigating measures were promised and are relevant, e.g.,
Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v.
Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982), and Sierra Club's
brief makes no effort to develop an attack on their adequacy.
Sierra Club does argue that the Forest Service failed to
consider the impact the projects would have on so-called "roadless
characteristics," which are identified in the 2001 Roadless Area
Conservation Rule ("Roadless Rule"), 36 C.F.R. § 294. The Forest
Service says, without any answer from Sierra Club, that the
Roadless Rule does not apply to these projects.5 Sierra Club
concedes in its reply brief that the Roadless Rule merely
identifies concerns that the Forest Service must address.
The so-called roadless characteristics to which Sierra
Club points are a catch-all list of potential concerns,6 and some
5
The Forest Service says that the Roadless Rule applies only
to areas so designated at the time the new regime was established
in November 2000 or before, 66 Fed. Reg. at 3272, and that the IRAs
involved in Than and Batchelder were not included.
6
They are as follows:
(1) high quality or undisturbed soil, water, and air;
(2) sources of public drinking water;
(3) diversity of plant and animal communities;
(4) habitat for threatened, endangered, proposed, candidate,
and sensitive species and for those species dependent on
large, undisturbed areas of land;
(5) primitive, semi-primitive nonmotorized and semi-primitive
motorized classes of dispersed recreation;
(6) reference landscapes;
(7) natural appearing landscapes with high scenic quality;
(8) traditional cultural properties and sacred sites; and
(9) other locally identified unique characteristics.
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were certainly considered (soil and water quality, appearance)
while others (e.g., sacred sites) are not even alleged to be of
issue. It is up to Sierra Club to identify important
considerations that were presented by the record but were not
seriously addressed in an EA. The generality of the argument made
renders it ineffective.
Sierra Club next says that the Forest Service failed to
consider whether the timber harvesting would disqualify any of the
land involved from future recommended designation for wilderness
protection that Congress may afford. The Forest Service fairly
responds that harvesting does not automatically preclude such a
designation7 and that the South Carr Mountain area was considered
for designation despite past timber harvesting but thought
unsuitable for other reasons.
Further, the 2005 Plan (to whose analysis the Than and
Batchelder projects were tiered) contains even more specific
analysis, including explicit findings that the areas in question
were inappropriate for future wilderness designation. See
Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d 428, 433 (8th Cir.
66 Fed. Reg. 3,244, 3272 (Jan. 12, 2001).
7
The Forest Service has recognized in its own handbook the
difference between Eastern and Western forests, with Eastern land
with up to 20 percent of a given area harvested for timber still
eligible for wilderness designation. FSH 1909.12 ch. 71.12 (2005).
Land is eligible in the west for wilderness designation only in
"areas where logging and prior road construction are not evident."
FSH 1909.12 ch. 71.1, 71.11 (2005).
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2004) (EA permissible when tiered to broader plan that did address
impact). And contrary to Sierra Club's assertion that wildlife was
not taken into consideration, the Forest Service explicitly looked
at the impact on a host of species.
Independent of concrete harms from this project, Sierra
Club makes a set of arguments that the projects are significant
because of their "context" and ostensibly controversial nature.
One might be surprised to discover that even if a particular
project threatens no significant environmental harm, the decision
to permit it may still be significant, depending on "contextual
factors." Yet, the regulations do suggest such a reading. 40
C.F.R. § 1508.27 (2008). Sierra Club argues that the Forest
Service failed to consider that "these projects are the first to
authorize commercial logging and road building in an IRA in the
eastern United States and the first to enter a roadless area under
the 'Forest Plan IRAs' theory, since promulgation of the Roadless
Rule." However, such a broad definition of context is explicitly
disclaimed by the relevant regulation, which states that the
relevant context for "site specific action[s] . . . would usually
depend upon the effects in the locale rather than in the world as
a whole." 40 C.F.R. § 1508.27 (2008).
Its other argument is that the effects of the projects
were "controversial," requiring the completion of an EIS. But once
again, the highly general character of this claim deprives it of
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force. We are not told where the controversy lies, or even amongst
whom there is a meaningful dispute. As best we can tell, the
controversy is that the Sierra Club disagrees with the conclusions
the Forest Service reaches, which is not sufficient by itself to
warrant an EIS. Cf. Native Ecosystems Council v. United States
Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005).
The Forest Service did no EIS but also did not brush off
environmental concerns. Its EAs that are lengthy by any standard
(appendices aside, the Than EA is 194 pages and the Batchelder EA
is 146 pages) addressing in detail the environmental concerns that
might arise before concluding that, as subject to intended
mitigation, the impacts were not significant. The substantive
decisions thus did not ignore the possible environmental effects.
The Forest Service's EA discussion makes clear that it
considered all of the arguable categories of harm--such as visual
effects, noise, soil effects, impact on wildlife, road and bridge
construction or maintenance, and impact on watershed--and that it
addressed and answered claims concerning precedential significance,
impact on wilderness designation and the impact of the roadless
rule. Possibly little was saved by doing EAs of this character
instead of EISs, but it is not clear that anything was lost.
Sierra Club ends with a procedural argument that the
Forest Service violated NEPA by not making the FONSIs available
for thirty days of notice and comment. CEQ regulations require
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that draft FONSIs be made available for public review and comment,
inter alia, when "[t]he proposed action is, or is closely similar
to, one which normally requires the preparation of an
environmental impact statement." 40 C.F.R. § 1501.4(e)(2)(i)
(2008). Sierra Club says that the projects here meet the test for
such notice.
Whether or not this is so, the evident intent to allow
public comment on FONSI findings seems to have been satisfied here
in spades. An agency that adopts a FONSI without seeking input
can be expected at least to accept comments before acting on the
merits of a decision; but here both EAs were circulated in draft
form and comments solicited even before any FONSI was finally
adopted. Why this does not satisfy the purpose of the thirty day
rule Sierra Club does not explain.
Affirmed.
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