IN Forest Alliance v. US Forest Service , 325 F.3d 851 ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3316
INDIANA FOREST ALLIANCE, INC.,
HEARTWOOD, INC., SASSAFRAS AUDUBON
SOCIETY, INC., REGIONAL ASSOCIATION OF
CONCERNED ENVIRONMENTALISTS, INC.,
PROTECT OUR WOODS, INC.,
Plaintiffs-Appellants,
v.
UNITED STATES FOREST SERVICE, AND
KENNETH DAY, FOREST SUPERVISOR, AND
HOOSIER NATIONAL FOREST,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 99 C 214—David F. Hamilton, Judge.
____________
ARGUED FEBRUARY 13, 2002—DECIDED APRIL 8, 2003
____________
Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. In 1999, the United States Forest
Service proposed a comprehensive plan to maintain forest
openings in the Hoosier National Forest. Pursuant to the
National Environmental Policy Act, the Forest Service
prepared an environmental assessment and found that the
project would have no significant environmental impact
2 No. 01-3316
and therefore would not require a more extensive environ-
mental impact statement. Several groups of conservation-
ists appealed the decision through administrative chan-
nels and then filed a claim in district court. On a motion
for summary judgment, the district court held that because
the Forest Service had not acted arbitrarily or capriciously
in concluding that an environmental impact statement
was not required, that decision must be upheld. We affirm.
I. Background
The Hoosier National Forest (or the “Forest”) consists
of approximately 196,102 acres arranged in a checkerboard
of private and federal lands across the state of Indiana. The
Forest comprises about 27 percent of the total public land
available for recreation and 40 percent of the public land
open for hunting in Indiana. The United States Forest
Service (“Forest Service”) oversees the Forest and, as part
of that duty, maintains small openings in wooded areas to
provide habitat for plants and animals that benefit from
1
vegetation in early successional stages. These forest
openings occur as both natural openings, known as bar-
rens, and artificial openings which are maintained by
periodic treatments, such as mowing, cutting, or prescribed
burning.
On March 20, 1998, the Forest Service announced a
proposal for a more comprehensive approach to forest
1
Early successional forests include tree stands less than ten
years old and currently constitute about three percent of the
Forest, while late and mid-successional tree stands composed
of oaks, mixed hardwoods and pine trees greater than ten years
old account for 96 percent of the Forest.
No. 01-3316 3
openings maintenance. In a letter known as a “scoping
notice,” the Forest Service proposed maintaining 972
openings covering 3,341 acres over a five-year period.
According to the scoping notice, the purpose of the forest
openings maintenance project was to provide early
successional habitat for a variety of wildlife species, to
add visual variety to the landscape, and to provide for
recreational activities such as hunting, berry-picking,
and wildlife observation.
In March 1999, the Forest Service sent a pre-decision
environmental assessment (EA) of the proposed project
to interested parties and provided a 30-day public com-
ment period. The EA addressed three management alterna-
tives: the “proposed action” alternative, a “mowing only”
alternative, and a “no action” alternative. The Forest Ser-
vice received about 90 responses from parties both op-
posed to, and in favor of, the project. Those opposed to the
project, including several noted scientists in the field of
ornithology, raised concerns as to the project’s effects on
neo-tropical migrant bird populations and other animals
and plants in the Forest. After reviewing the comments
on the draft EA, Kenneth Day, Forest Supervisor for the
Hoosier National Forest, issued a Decision Notice and
Finding of No Significant Impact (FONSI), which an-
nounced the Forest Service’s plan to proceed with 947
2
openings on 3111 acres of the Forest. The FONSI was ac-
companied by a Final EA, which included a response to
comments section.
2
The number of openings was reduced based on the public
response and efficiency and access concerns.
4 No. 01-3316
3
Several groups of concerned citizens, including the
Indiana Forest Alliance, Inc., filed an administrative ap-
peal and on September 20, 1999, Forest Service hearing
officer Steve Kessler recommended the affirmance of the
Forest Service’s decision to maintain the Forest openings
as proposed. Regional Forester Robert T. Jacobs incorpo-
rated Officer Kessler’s findings in full on each of the ap-
peal issues and adopted his recommendation to affirm
the Forest Service’s decision on October 1, 1999. The plain-
tiffs then filed suit in federal court alleging that the For-
est Service’s decision to implement the forest openings
4
project was unlawful on two grounds. First, the plain-
tiffs contended that pursuant to the National Environ-
mental Policy Act (NEPA) the Forest Service was required
to prepare a full environmental impact statement (EIS) for
3
Fourteen different citizen groups participated in the admin-
istrative appeal process but only five plaintiff organizations
participated in the subsequent suit in district court and this
appeal. They are: (1) the Indiana Forest Alliance, Inc., (2) Heart-
wood, Inc., (3) Sassafras Audubon Society, Inc., (4) the Regional
Association of Concerned Environmentalists, Inc., and (5) Pro-
tect our Woods, Inc. (hereinafter “plaintiffs”). The plaintiff or-
ganizations all alleged that their members use the Hoosier
National Forest for a variety of recreational and scientific
purposes.
4
The plaintiffs’ allegations that they use the Forest for hik-
ing, camping, and birding are sufficient to establish standing
to bring this suit. See Rhodes v. Johnson, 153 F.3d 785, 787 (7th
Cir. 1998) (advising that standing to bring a NEPA action
should be examined even where, as here, the defendant does
not dispute it; plaintiffs whose use and enjoyment of a national
forest could be diminished by agency decision had standing
to bring suit where alleged procedural violations were con-
nected to alleged harm).
No. 01-3316 5
the project, not merely an environmental assessment.
Second, the plaintiffs asserted that the Forest Service
violated the National Forest Management Act (NFMA) by
not collecting population data for management indicator
species and by not establishing population objectives for
sensitive species. Both parties moved for summary judg-
ment, and the district court first ruled that the Forest Ser-
vice had not acted arbitrarily or capriciously in finding
no significant impact of the openings plan and therefore
the agency was not required to prepare an EIS. The dis-
trict court also determined that the Forest Service did not
act arbitrarily or capriciously with respect to its monitor-
ing duties under the NFMA when it decided to implement
the forest openings maintenance project. The plaintiffs
appeal.
II. Discussion
On appeal the plaintiffs contend that the district court
erred in granting summary judgment to the Forest Service
because the record reflects substantial, unresolved scien-
tific controversy regarding the impact of the Forest Ser-
vice’s decision on various bird species and therefore the
Service violated NEPA by acting arbitrarily and capriciously
in deciding not to prepare an EIS. Additionally, they
contend that the Forest Service’s decision was arbitrary
and capricious in violation of the NFMA because the
administrative record contains no site-specific data or
other monitoring information regarding the impacts of
the Forest openings program on many native wildlife
species.
6 No. 01-3316
A. Preparation of an EIS
Under NEPA, federal agencies must include an EIS in
every recommendation for “major Federal actions signifi-
cantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C) (emphasis added); City of Evanston v.
Regional Transp. Authority, 825 F. 2d 1121, 1124 (7th Cir.
1987). Conversely, an agency is not required to prepare
an EIS where the proposed action will not significantly
affect the environment. See id. at 1125 (citing cases). The
Council on Environmental Quality (CEQ) has promulgated
regulations to establish uniform procedures for determining
whether, when, and how to prepare an EIS. See 42 U.S.C.
§§ 4341-4347 (establishing the CEQ); see also, 40 C.F.R.
§§ 1500-1517. When a proposed action is neither one
normally requiring an environmental impact statement
5
nor one categorically excluded from the EIS process, the
6
agency must prepare an environmental assessment (EA).
An EA has been described as a “rough-cut, low-budget
environmental impact statement designed to show whether
a full-fledged environmental impact statement—which
is very costly and time-consuming to prepare and has been
5
The CEQ regulations direct agencies to adopt implementing
procedures to determine which actions normally do not have
any significant impact on the environment and so need not be
the subject of a study or report. These actions are referred to
as “categorical exclusions.” 40 C.F.R. § 1501.4(a)(2). See also
Rhodes, 153 F.3d at 788; Heartwood, Inc. v. United States Forest
Service, 230 F.3d 947, 949-50 (7th Cir. 2000).
6
NEPA makes no mention of EAs; however, the CEQ regula-
tions outline the requirements for preparing an EA. 40 C.F.R.
§ 1500 et seq. The Supreme Court has stated that these regula-
tions are entitled to “substantial deference.” Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 372 (1989).
No. 01-3316 7
the kiss of death to many a federal project—is necessary.”
Rhodes, 153 F.3d at 788 (quoting Cronin v. United Stated
Dep’t of Agriculture, 919 F.2d 439, 443 (7th Cir. 1990)). “[T]he
purpose of an environmental assessment is to determine
whether there is enough likelihood of significant environ-
mental consequences to justify the time and expense of
preparing an environmental impact statement.” River Road
Alliance v. United States Army Corps of Engineers, 764 F.2d
445, 449 (7th Cir. 1985). In this case, the Forest Service
made a finding of no significant impact at the culmination
of the environmental assessment process for the forest
openings project, and therefore did not prepare an EIS.
The CEQ regulations require agencies to examine two
dispositive considerations in formulating an EA to deter-
mine whether the proposed action may have a significant
effect on the environment, thereby requiring an EIS:
“context and intensity.” 40 C.F.R. § 1508.27; 42 U.S.C.
§ 4332(2)(C); see also, Sierra Club v. United States Forest Serv.,
7
843 F.2d 1190, 1193 (9th Cir. 1988). In this case the plain-
tiffs argue on appeal that the Forest Service failed to prop-
erly consider only one of the ten factors that the CEQ
regulations identify as indicia of intensity: “(4) The degree
7
The CEQ defines these factors as:
(a) Context. This means that the significance of an action
must be analyzed in several contexts such as society as a
whole (human, national), the affected region, the affected
interests, and the locality.
...
(b) Intensity. This refers to the severity of impact. Respon-
sible officials must bear in mind that more than one agency
may make decisions about partial aspects of a major action.
40 C.F.R. § 1508.27.
8 No. 01-3316
to which the effects on the quality of the human environ-
8
ment are likely to be highly controversial.” The plaintiffs
contend that the existence of scientific dispute over the
effects of the proposed action on wildlife requires a find-
ing that the action is significant, thereby demanding an EIS.
Hence, we begin our analysis of the plaintiffs’ claim by
looking at the language of the statute. This circuit has yet
to address the appropriate manner in which agencies
should address this specific indicia of intensity, and neither
NEPA, nor its implementing regulations, defines “highly
controversial.” The primary rule of statutory interpretation
is that words used in statutes must be given their ordinary
and plain meaning. United States v. Wilson, 159 F.3d 280, 291
(7th Cir. 1998). Webster’s defines controversy as “a differ-
ence marked especially by the expression of opposing
views.” Webster’s Third New International Dictionary 497
(1981). The term “controversial” is then modified by the
term “highly,” limiting the controversies worth consider-
ation to only those that create a substantial dispute. Those
controversies described by the regulation are further lim-
ited to only those that concern the effects of the regulation
on the environment, and therefore mere opposition to a
8
The Forest Service argues that since the degree of controversy
is but one of ten factors agencies must consider in determining
intensity under the regulation, the existence of that factor alone
is not enough to require an EIS. See, e.g., Soc’y Hill Towers
Owners’Ass’n v. Rendell, 210 F.3d 168, 184 (3d Cir. 2000) (“[I]t is
important to note that the existence of a controversy is only one
of the ten factors listed for determining if an EIS is necessary.”).
However, because we conclude that the Forest Service’s assess-
ment of this factor was not arbitrary or capricious, we need
not address the issue of whether any one factor could be deter-
minative of intensity under the CEQ regulations.
No. 01-3316 9
proposed action will not create high controversy. See State
of N.C. v. Fed. Aviation Admin., 957 F.2d 1125, 1134 (4th Cir.
1992) (noting that if controversy were equated with opposi-
tion, the EIS outcome would be governed by a “heckler’s
veto”). Therefore in order for a proposed action to be highly
controversial it must be subject to a substantial dispute
concerning the specific environmental effects of the action.
While this is the first instance that we have had an
opportunity to address this issue, a substantial body of
9
case law has developed in the Ninth Circuit. The Ninth
Circuit has held “highly controversial” in NEPA context
does not encompass all public opposition to a proposed
action, but instead only applies to a substantial dispute as
to the size, nature, or effect of an action. Wetlands Action
Network v. United States Army Corps of Eng’rs, 222 F.3d 1105,
1122 (9th Cir. 2000). See also, Blue Mountains Biodiversity
Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998)
(stating that controversy, in this context, requires “a sub-
stantial dispute [about] the size, nature, or effect of the
major Federal action rather than the existence of opposi-
tion to a use.” (citing Greenpeace Action v. Franklin, 14 F.3d
1324, 1335 (9th Cir. 1993)); Sierra Club v. United States Forest
Service, 843 F.2d 1190, 1193 (9th Cir. 1988) (accord);
LaFlamme v. Federal Environmental Regulatory Commission, 852
F.2d 389, 400-01 (9th Cir. 1988) (accord). Thus, controversy
9
The Forest Service itself does not define highly controversial
for its own purposes in the context of preparing an environmen-
tal assessment. By comparison the FAA has defined this term.
FAA Order 1050.1D ¶ 32(b). The FAA’s regulations, read literal-
ly, indicate that a project is “highly controversial” if the “ac-
tion” in question is “opposed on environmental grounds by
a Federal, State, or local government agency or by a substantial
number of the persons affected.” FAA Order 1050.1D, ¶ 17.
10 No. 01-3316
does not refer simply to the existence of public opposition
to a use. LaFlamme at 401; see also Hanly v. Kleindienst, 471
F.2d 823, 830 (2d Cir. 1972) (“[t]he suggestion that ‘controver-
sial’ must be equated with neighborhood opposition has
also been rejected by others”). Therefore, in reconciling
our interpretation of the statute with the developed case
law, this factor considers whether there is a substantial
dispute about the size, nature or effect of an action in the
relevant community. However, the analysis does not end
with that conclusion. See Sierra Club v. Watkins, 808 F. Supp.
852, 862 (D.D.C.1991) (holding that a controversy does not
exist simply because there are conflicting views among
experts). If there is such a dispute, NEPA then places
the burden on the agency to come forward with a “well-
reasoned explanation” demonstrating why opinions dis-
puting an EA’s conclusions “do not suffice to create a pub-
lic controversy based on potential environmental con-
sequences.” LaFlamme, 852 F.2d at 401.
In Sierra Club, for example, the Forest Service decided
to award several timber contracts that allowed harvesting
in forests containing groves of giant sequoia redwoods.
The Forest Service reached this decision without preparing
an EIS. Sierra Club, 843 F.2d at 1192. The Sierra Club pro-
duced testimony from numerous biologists, conservationists
and other experts showing that the EA inadequately ad-
dressed these concerns and therefore cast serious doubt
on the Forest Service’s conclusions. The Ninth Circuit
observed that “[t]his is precisely the type of ‘controversial’
action for which an EIS must be prepared.” Id. at 1193. See
also, Public Citizen v. Department of Transportation, 2003 WL
124764 (9th Cir. 2003) (finding that a project was suffi-
ciently controversial when 90% of the comments opposed a
DOT project and these comments were not addressed by
an EA). The Ninth Circuit followed the same approach
No. 01-3316 11
but reached a different conclusion in Wetlands Action Net-
work, where the court found that because the EA addressed
the concerns and objections raised by conservation groups,
there was no significant controversy under NEPA. See
Wetlands Action Network, 222 F.3d at 1122.
Read together, Sierra Club and Wetlands Action Network
establish a two-step approach to determining whether an
agency has acted arbitrarily or capriciously in deciding
not to prepare an EIS in the face of scientific controversy.
First, plaintiff organizations must demonstrate a substan-
tial dispute concerning the size, nature or effect of the
proposed action. If they succeed in doing so, the agency
must consider the dispute and address the concerns in its
final decision. This two-step approach recognizes that as
long as the agency has taken a “hard look” at the relevant
issues involved in the preparation of an EIS and satisfacto-
rily explained its subsequent decision, the agency deci-
sion should not be set aside.
This standard is appropriate considering that our review
of the Forest Service’s action under NEPA is governed by
the Administrative Procedures Act (APA). Heartwood Inc. v.
United States Forest Service, 230 F.3d 947, 953 (7th Cir.
2000). Under the APA, courts must set aside agency de-
cisions found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.”
5 U.S.C. § 706(2)(A); FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775, 802 (1978). To determine wheth-
er an agency action is arbitrary or capricious, we must con-
sider “whether the decision was based on a consideration
of the relevant factors and whether there has been clear
error of judgment.” Marsh v. Oregon Natural Resources
Council, 490 U.S. 360, 378 (1989) (citations omitted). We
must satisfy ourselves that the agency “examine[d] the
relevant data and articulate[d] a satisfactory explanation
12 No. 01-3316
for its action including a ‘rational connection between the
facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). If an
agency considers the proper factors and makes a factual
determination on whether the environmental impacts
are significant or not, that decision implicates substantial
agency expertise and is entitled to deference. Marsh, at
376; see also Greenpeace Action v. Franklin, 14 F.3d 1324,
1330 (9th Cir. 1992). Pursuant to this deferential standard,
reviewing courts should not substitute their judgments for
those of an agency as to the environmental consequences
of its actions. Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21
(1976). Consequently, the standard of review when exam-
ining an agency’s decision under NEPA is a narrow one.
See Marsh, 490 U.S. at 378.
Thus we must ask on this appeal whether the plaintiffs
have demonstrated a substantial dispute as to the effects
of the forest openings project on the environment and
whether the Forest Service’s decision to proceed despite
10
this scientific disagreement is arbitrary or capricious.
The plaintiffs direct our attention to the comments sub-
mitted in response to the Forest Service’s request and
contained in the administrative record from four acknowl-
edged experts on bird issues: Dr. Donald Whitehead,
Donald Winslow, Dr. Jean Graber, and Scott Pruitt (col-
10
The plaintiffs only contend that there is a substantial contro-
versy concerning the impact of the forest openings project on
several bird species. They do not cite to any substantial contro-
versy regarding the impact of the openings project on the flora,
non-aviary wildlife species, visual variety, hunting, berry-picking
or general wildlife observation in the Hoosier National Forest.
No. 01-3316 13
11
lectively referred to as the “Dissenting Scientists”). Each
of these scientists disputed the Forest Service’s conclusion
that the maintained openings would benefit various bird
species dependent on early successional habitat. More
specifically, these experts believed that the project would
actually have a negative effect on forest interior bird species,
no effect on most open land bird species, and, contrary to
the EA, believed that no bird species is dependent on
these small artificially maintained openings.
For example, according to Dr. Whitehead, eight of the
bird species described by the Forest Service as benefitting
from the project have never been “tallied” in the For-
12
est. Thus it would be impossible for the project to benefit
these species, as the Forest Service claims. Whitehead also
contends that the Forest Service was wrong in its assertion
that the scarlet tanager would benefit from maintained
openings because, in his opinion, the openings would re-
duce the scarlet tanager’s available breeding habitat and
would expose it to increased cowbird parasitism. In White-
head’s view, the Forest Service was so obviously wrong
about the scarlet tanager that it “seriously undermines the
scientific credibility of the [environmental] assessment.” Dr.
Graber and Pruitt also dispute the claim that the openings
benefit birds that live in early successional habitat. They
11
Dr. Whitehead is a biology professor at Indiana University who
has researched songbirds in Indiana. Donald Winslow is a
doctoral candidate at Indiana University who researches bird
breeding in the Forest. Dr. Graber is an ornithologist retired from
the Illinois Natural History Survey. Scott Pruitt is an acting
supervisor for the U.S. Fish and Wildlife Service.
12
These species are the Henslow’s sparrow, short-eared owl,
Bell’s vireo, golden-winged warbler, bobolink, dickcissel,
Bachman’s Sparrow, and field sparrow.
14 No. 01-3316
contend many of the openings are too small to provide an
adequate habitat, especially for Henslow’s sparrow and
similar species that only benefit by large acreages of early
successional habitat. Thus these experts disputed the
beneficial effects of the project and challenged the Forest
Service’s conclusions as to open-land dependent bird
species. The plaintiffs therefore assert that the forest open-
ings maintenance project is “highly controversial” within
the meaning of 40 C.F.R. 1508.27(b)(4) because they “have
demonstrated that experts and state and federal agencies
disagree about the effects of the forest openings project
on the human environment.”
We agree that the plaintiffs have presented evidence of
a controversy as to the effects of this action. However that
does not end our inquiry. Rather, we must now consider
whether the administrative record shows that these con-
cerns were addressed by the Forest Service in finding that
the project would not significantly affect the environment.
We conclude that these concerns were addressed. The
administrative record is replete with scientific data ad-
dressing the concerns of the Dissenting Scientists. During
the comment period, Dr. John Castrale, a non-game biolo-
gist from the Indiana Division of Natural Resources (IDNR),
Division of Fish and Wildlife, voiced his findings in sup-
port of the project. His findings are that 14 bird species
would benefit from openings maintenance, “[s]ince very
little timber cutting has occurred during the last 20 years,
maintenance of forest openings is now the only planned
way to maintain a proportion (albeit small) of the forest
in early successional habitats.” Rex Watters, IDNR Reser-
voir Wildlife Specialist, commented that in light of the
IDNR’s maintenance of openings on Monroe Reservoir,
“[t]he benefits of maintaining these openings far [outweigh]
the expense and effort required.” Gary Doxtater, Director
of the IDNR Division of Fish and Wildlife, discussed the
No. 01-3316 15
benefits of openings maintenance on several bird species,
bobcats, rabbits, and small rodents. Mark Banker, Regional
Biologist for the Ruffed Grouse Society, stated that
“[w]ildlife survey data for Indiana strongly supports the
Forest’s contention that the management of early suc-
cessional habitat is critical.” Similarly, the Indiana Chapter
of the Wildlife Society (a self-described organization of
professional biologists dedicated to conservation and
research concerning wildlife in Indiana) concluded that
the openings maintenance will benefit several bird species.
These comments were cited extensively in Appendix E
of the EA where the Forest Service responded to the com-
ments and criticisms raised during the comment period.
See Environmental Assessment, Forest Openings Mainte-
nance Project, June 28, 1999, cmts. G-15, P-2, P-3, P-18, P-41,
P-49, P-50 (responding to general comments, and com-
ments about plant and animal effects, and providing addi-
tional references where appropriate).
In the direct administrative appeal of the FONSI deci-
sion, the Forest Service hearing official noted that while
dissenting scientific opinions exist, the project was not
13
highly controversial thereby requiring an EIS. Those
courts that have addressed this issue have consistently
13
In the Decision Notice and FONSI the Forest Service states:
Based on the involvement of resource specialists, both
within and outside the Forest Service, I do not expect the
effects of these actions on the human environment to be
highly controversial (scientifically). Some people will not
accept this decision; some people will probably find that
their own personal needs and values are not served by the
proposed actions . . . . However, I believe we addressed
the most significant biological, social and economical issues
sufficiently to avoid scientific controversy over the scope
and intensity of the project.
16 No. 01-3316
held that when an agency’s finding of no significant im-
pact is based upon adequate data, the fact “that the record
also contains evidence supporting a different scientific
opinion does not render the agency’s decision arbitrary
and capricious.” Wetlands Action Network, 222 F3d at 1120-
21. See also Greenpeace Action, 14 F.3d at 1333; cf. Blue Moun-
tains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214
(9th Cir. 1998) (requiring an EIS only when the “EA contains
virtually no references to any material in support of or in
opposition to its conclusions”); Foundation for North Am.
Wild Sheep v. United States Dep’t of Agric., 681 F.2d 1172, 1178
(9th Cir. 1982) (finding that an agency’s failure to ad-
dress “certain crucial factors, consideration of which was
essential to a truly informed decision whether or not to
prepare an EIS,” rendered unreasonable its decision that
no EIS was necessary). This is because scientific dispute
is a part of the everyday existence for agencies involved
in environmental projects and thus, as the Supreme
Court has noted, when “specialists express conflicting
views, an agency must have discretion to rely on the
reasonable opinions of its own qualified experts even if,
as an original matter, a court might find contrary views
more persuasive.” Marsh, 490 U.S. at 378; see also Friends
of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th
Cir. 1985) (“NEPA does not require that we decide wheth-
er [a pre-EIS report] is based on the best scientific meth-
odology available, nor does NEPA require us to resolve
disagreements among various scientists as to methodol-
ogy.”). NEPA does not demand scientific unanimity in
order to support a FONSI; if it did,“agencies could only act
upon achieving a degree of certainty that is ultimately
illusory.” Greenpeace Action, 14 F.3d at 1336. See also, Fund
for Animals v. Babbitt, 903 F. Supp. 96, 115 (D.D.C. 1995)
(noting that “disagreement [among experts] does not ren-
der the agency’s action arbitrary and capricious”).
No. 01-3316 17
In this case the dispute involves only a few bird species
among the many wildlife species impacted by the project,
and the Forest Service has provided alternative scientific
data that addresses the controversy. The Forest Service’s
own assessment that the project is not objectively highly
controversial is entitled to deference if it is made after a
hard look at the controversy and rationally related to the
data. Because the Forest Service properly reached this
conclusion, based on a consideration of the appropriate
factors, it did not act arbitrarily and capriciously in find-
ing no significant impact of the forest openings project
and an EIS was not required under NEPA.
B. Monitoring Indicator Species Under the NFMA
In addition to challenging the Forest Service’s decision
not to prepare an EIS, the plaintiffs also contend that the
Forest Service has violated the National Forest Management
Act (NFMA), 36 C.F.R. §§ 219.19 & 219.26, by not mon-
itoring management indicator and sensitive species ade-
quately.
The NFMA requires that the Forest Service create Land
and Resource Management Plans (LRMP) to manage
National Forests. 16 U.S.C. §1604 (a). The NFMA further
requires that each plan set forth objectives to, among
other things, ensure a diversity of plant and animal species
and maintain the viability of desired species. 16 U.S.C.
§1604(e). The Forest Service has promulgated regulations
to carry out this mandate under the NFMA. See 36 C.F.R.
§ 219 (1999). Section 219.19 requires the Forest Service to
identify management indicator species (MIS) and monitor
their populations: “[p]opulation trends of the manage-
ment indicator species will be monitored and relationships
to habitat changes determined.” 36 C.F.R. § 219.19(a)(6)
18 No. 01-3316
(1999). Another subsection of Section 219 further mandates
that:
[f]orest planning shall provide for diversity of plant
and animal communities and tree species consistent
with the overall multiple-use objectives of the planning
area. Such diversity shall be considered throughout
the planning process. Inventories shall include quantita-
tive data making possible the evaluation of diversity
in terms of its prior and present condition. For each
planning alternative, the interdisciplinary team shall
consider how diversity will be affected by various
mixes of resource outputs and uses, including proposed
management practices.
36 C.F.R. § 219.26 (1999).
Consistent with these requirements, the LRMP for the
Hoosier National Forest requires that the Forest Service
monitor MIS to determine the effects of the management
activities. The LRMP states that “[r]ather comprehensive
monitoring of these species will provide data on population
trends under a variety of habitat conditions found in the
forest.” However, in order to achieve this goal the Plan
only requires that the Forest Service (1) “identify trends
of populations of management indicator species and their
relationship to habitat changes”; and (2) “monitor effects
of management” on populations of sensitive species.
Hoosier National Forest Plan (April 1991), 5-4 to 5-7. The
plaintiffs contend that the Forest Service has violated
the NFMA, and therefore acted arbitrarily and capricious-
ly, because in the EA for the forest openings decision, the
Forest Service has not included any hard data regarding
the actual impacts of those openings on management
indicator species.
Because the NFMA does not create a private right of
action, the plaintiffs’ claim under the NFMA must be
No. 01-3316 19
analyzed under the APA. See Sierra Club v. Marita, 46 F.3d
606, 610 n.3 (7th Cir. 1995); accord Sierra Club v. Peterson,
228 F.3d 559, 565 (5th Cir. 2000) (en banc). Thus, we con-
sider only whether the decision to proceed with the forest
openings maintenance project, the final agency action at
issue, was arbitrary or capricious in light of applicable
NFMA standards. Under this deferential standard, see
supra p.11-12, the Forest Service’s decision to implement
the forest openings maintenance project must be upheld if
the record shows that the Forest Service took a hard look
at relevant NFMA issues in making its decision. See
Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976).
The administrative record shows that the Forest Service
relied on a variety of data types to determine manage-
ment indicator species population trends and to monitor
the effects of agency actions on sensitive species. For
example, the Forest Service has gathered this data in
coordination with the Indiana Department of Natural
Resources, Fish and Wildlife Division, as contemplated by
the regulations. See 36 C.F.R. § 219.19(a)(6) (1999) (“[t]his
[MIS] monitoring will be done in cooperation with State
fish and wildlife agencies, to the extent practicable”). The
record also contains quantitative population informa-
tion from the following sources: (1) Indiana Non-game
and Endangered Wildlife Program of Indiana Department
of Natural Resources Atlas of Breeding Birds Of Indiana;
(2) archers’ index of fur-bearing animal populations; (3)
wild turkey hunter bag; (4) maps of transect survey routes
on national forest lands; (4) ruffed grouse survey; (5)
woodcock survey; and (6) waterfowl surveys. The Forest
Service claims that it did not yet have adequate population
data to project population trends for fish, stream inverte-
brates, and cave invertebrates, but it had conducted sur-
veys that provide a baseline of information about popula-
tion trends. In addition to this direct population informa-
20 No. 01-3316
tion, the Forest Service also tracks habitat in the Forest
using a database inventory of forest stand and vegetative
type information. The Forest Service claims that tracking
habitat in this manner generally allows them to monitor the
habitat available for management indicator species.
The plaintiffs allege that the NFMA and its regulations,
the Plan for the Hoosier National Forest, and the Forest
Service Manual required the Forest Service to inventory
all management indicator and sensitive species before
making a final decision on the forest openings mainte-
nance project. They allege that the Forest Service failed
that directive by using data on habitat availability as an
approximation of the population of MIS, instead of going
into the field and actually counting all of the birds.
However, the plaintiffs’ argument fails because none of
these regulatory sources imposes such a specific require-
ment on the Forest Service. We have previously acknowl-
edged that the NFMA grants the Forest Service consider-
able discretion: “The drafters of the NFMA diversity reg-
ulations themselves recognized that diversity was a com-
plex term and declined to adopt any particular means or
methodology of providing for diversity.” Sierra Club v.
Marita, 46 F.3d at 620. In Marita, we approved the consider-
ation of habitat changes as one means of managing a
forest to encourage diversity and monitor management
indicator species. In Marita, the Forest Service was logically
proceeding under the assumption that an increase in the
diversity of habitats would increase the potential livelihood
of diverse kinds of organisms. Id. at 616. Pursuant to that
plan, the Forest Service surveyed vegetative diversity in
the relevant planning areas and then assessed animal
diversity primarily on the basis of vegetative diversity. The
Forest Service then selected MISs for various habitat types
and calculated the minimum viable population necessary
No. 01-3316 21
to continue the vitality of the species. Id. at 617. We con-
cluded that the Forest Service was entitled to use its own
methodology to fulfill its obligations unless it was irrational.
Id. at 621. In that case we found that the method of tracking
habitat was rational and therefore not in violation of the
NFMA.
We are not alone in this approach. In Inland Empire
v. United States Forest Service, 88 F.3d 754, 762-63 (9th Cir.
1996), the Ninth Circuit found that the Forest Service
complied with 36 C.F.R. § 219 by analyzing the effects of
a proposed timber sale on habitats for sensitive species. See
id. at 761. The court rejected the plaintiffs’ arguments that
the Forest Service must assess population viability in terms
of actual population size or population trends. Inland
Empire, 88 F.3d at 761 n.8. The court reached this conclusion
because it concluded that monitoring available habitat as
a method of monitoring species populations was “eminently
14
reasonable.” Id.Admittedly, this conclusion is not universally applied.
Several courts have held that § 219.19 does not allow use
of habitat as a proxy for hard population data. Sierra Club
v. Martin, 168 F.3d 1 (11th Cir. 1999). See also Utah Environ-
mental Congress v. Zieroth, 190 F. Supp. 2d 1265, 1271-72
(D.Utah 2002) (accord); Forest Guardians v. U.S. Forest Service,
180 F. Supp. 2d 1273, 1279 (D.N.M.2001) (accord). Specifical-
ly, in Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999), the
Eleventh Circuit held that the Forest Service violated the
14
The Ninth Circuit has subsequently clarified this issue in
Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 971-73
(2002). In Rittenhouse, the court held that while the use of hab-
itat availability could be used as a proxy for population data,
it was inappropriate when the Forest Service’s own scientific
evidence invalidated that approach. Id. at 972.
22 No. 01-3316
NFMA because it did not have adequate population data
for sensitive species. In reaching that decision, the Ele-
venth Circuit disagreed with the Ninth Circuit’s conclu-
sion in Inland Empire that the Forest Service could use
habitat information as a means of complying with NEPA
regulations’ monitoring requirements. Id. at 7 & n.10.
Significantly, however, that court based its decision in
part on the specific management requirements imposed
by the Forest Plan itself. Id. at 5 (“While it is true that the
regulations make no such demand [regarding popula-
tion data], the Forest Plan explicitly does so.”). In that
case, the plan provided that: “[w]hen adequate population
inventory information is unavailable, it must be collected
when the site has high potential for occupancy by a [pro-
posed, endangered, threatened, or sensitive species of
plants and animals].” In addition, the court observed
that the Forest Service had “no information at all in terms
of many of the [sensitive] species.” Id. The Martin court
was concerned that the Forest Service had acknowl-
edged that the proposed timber sales would destroy some
sensitive species in the affected habitats yet failed to pro-
vide specific data concerning the extent of the population
15
declines. Id. at 4.
15
Similarly in Forest Guardians v. U.S. Forest Service, 180 F. Supp.
2d 1273 (D. N.M. 2001), the plan unequivocally called for spec-
ific population data. In that case the plan required: “For non-
game birds, the monitoring methods are ‘point-counting,’ ‘man-
agement guilds,’ ‘single season,’ and habitat trends. Game
animals are to be monitored using ‘State Game and Fish census
techniques and resultant data’ and habitat trends. The purpose
of the ‘monitoring of habitat and populations [is] to ensure
the species do not fall below minimum viable populations.’ Id.
at 1279 (citations omitted). Also in Utah Environmental Congress
(continued...)
No. 01-3316 23
In this case we find ourselves in a situation more analo-
gous to the scenarios analyzed in Marita and Inland Empire.
The conclusion reached in those cases, that the Forest
Service’s methods of monitoring various types of data,
including the use of available habitat, were reasonable,
is applicable in this case. The use of available habitat is
eminently reasonable under the Forest Service’s plan be-
cause the forest openings project is specifically designed
to provide a form of habitat in short supply in the Forest.
Unlike Sierra Club v. Martin, and other cases that reached
the opposite conclusion, the plaintiffs have not identified
any language in the Plan for the Hoosier National Forest
that specifically requires the Forest Service to inventory the
populations of management indicator or sensitive species
before taking a site-specific action. Instead, the Plan for
the Hoosier National Forest more generally requires
that the Forest Service (1) “identify trends of populations
of management indicator species and their relationship
to habitat changes”; and (2) “monitor effects of manage-
ment” on populations of sensitive species. Plan, 5-4 to 5-7.
The Forest Service has rated the “desired precision, reliabil-
ity” of the monitoring of management indicator and sensi-
tive species as “moderate.” Id. In the EA and the accompa-
nying Biological Evaluation, the Forest Service adequately
satisfied these requirements to the extent they relate to
the forest openings maintenance project. For example the
EA contained synopses on fifteen different avian MIS,
including the Scarlet Tanager, and the relevant population
trends of each bird. While it is true that the Forest Service
15
(...continued)
v. Zieroth, 190 F. Supp. 2d 1265, 1271-72 (D. Utah 2002), the Forest
Plan required that the Forest track Blue Grouse as a manage-
ment indicator species and the agency had failed to collect any
data on the species for ten years.
24 No. 01-3316
could have used more recent data in many cases, the
methods employed by the Forest Service were not unrea-
sonable considering the purpose of the plan. Therefore, we
find that the Forest Service reasonably relied on habitat
and survey information about management indicator
species to monitor the effects of the forest openings manage-
ment project on those species. Because this method was
reasonable, the Forest Service did not act arbitrarily or
capriciously in proceeding with the action.
II. Conclusion
The Forest Service has complied with NEPA and the
NFMA in making its decision to implement the forest
openings maintenance project. The administrative record
demonstrates that the agency followed required proce-
dures and considered relevant data, and therefore did not
act arbitrarily or capriciously in arriving at its conclusion.
The district court’s grant of summary judgment to the For-
est Service is therefore AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-8-03