Habitat Education Center, Inc. v. United States Forest Service
673 F.3d 518
7th Cir.2012Background
- Forest Service planned McCaslin and Northwest Howell timber projects in Nicolet part of Chequamegon-Nicolet National Forest; final RODs issued and injunctions issued against projects pending NEPA compliance.
- Plaintiffs challenged NEPA and NFMA compliance, arguing improper cumulative impacts analysis, and sought to enjoin projects.
- A future Fishel Vegetation and Transportation Management Project was formally proposed March 9, 2006, after the McCaslin/Northwest Howell draft SEISs.
- District court held Fishel was not reasonably foreseeable at the time of the drafts and that supplementation was not required; injunctions were lifted.
- Appellants argued the agency failed to include Fishel in cumulative impacts analysis, failed to supplement, and failed to clearly indicate incompleteness under NEPA; the Seventh Circuit majority affirmed, with a partial dissent by Judge Gottschall.
- The court applied NEPA/CEQ framework (two-stage EIS, supplementation when significant new information arises) and deferred to agency expertise on hard-look determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fishel should have been included in cumulative impacts | Habitat argued exclusion was arbitrary; Fishel would alter landscape | Agency properly excluded until meaningful discussion possible; not significantly altering landscape | Not arbitrary or capricious; exclusion upheld |
| Whether the Forest Service should have supplemented | Supplementation was required due to new information | Not required; hard look taken; new info not significant | Not arbitrary or capricious; supplementation not required |
| Whether the agency violated § 1502.22 by not clearly indicating incompleteness | Agency failed to follow procedures to indicate incompleteness | Agency adequately indicated incompleteness per rule of reason | Sufficient under rule of reason; no rigid paperwork mandate |
Key Cases Cited
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (agency must take hard look; supplementation decisions defer to agency)
- Kleppe v. Sierra Club, 427 U.S. 265 (1976) (agency expertise deference in NEPA analysis)
- Baltimore Gas & Electric Co. v. NRDC, 462 U.S. 87 (1983) (NEPA requires hard look; not mandate of results)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (central NEPA hard look standard; supplement if significant change)
- Twentymile Coal Co. v. ADM, 609 F.3d 897 (7th Cir. 2010) (NEPA review is deferential but searching; hard look)
- Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (reasonableness of foreseeing actions and supplementation)
- Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437 (4th Cir. 1996) (hard look insufficiency when considering new info)
- Natural Resources Defense Council v. FAA, 564 F.3d 549 (2d Cir. 2009) (agency not required to supplement absent significant new info)