Partners In Forestry Cooperative v. United States Forest Service
638 F. App'x 456
6th Cir.
2015

Background

  • The Forest Service proposed a land exchange in the Ottawa National Forest: ~421 acres from the Deliches for ~320 (later 240) acres of federal parcels interspersed among private land to improve management efficiency.
  • The Forest Service prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI); after administrative appeals it prepared a Revised EA and a second FONSI; two federal parcels were later excluded, reducing the exchange to 240 acres for 421 acres.
  • Appellants (two nonprofits and seven individuals) exhausted administrative remedies and sued under the Administrative Procedure Act, alleging NEPA violations and challenging the district court’s exclusion of a separately prepared land appraisal from the administrative record.
  • Appellants argued (1) an EIS was required because impacts could be significant (uniqueness, controversy); (2) the agency failed to consider adequate alternatives; (3) the Revised EA inadequately analyzed direct, indirect, and cumulative impacts; and (4) new information required supplementation.
  • The district court granted summary judgment to the Forest Service and struck the appraisal; the Sixth Circuit reviewed de novo for arbitrary and capricious agency action and for abuse of discretion on the record-exclusion issue.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether an EIS was required (significance: §1508.27 factors) Exchange may have significant impacts: loss of old-growth/hemlock, unique rock features, loss of Wildcat Falls; logging impacts uncertain and controversial Revised EA analyzed old growth, vegetation, recreation, and logging scenarios (with and without BMPs); site features not shown to be unique; impacts minor Court held no EIS required; agency reasonably considered intensity/context and did not act arbitrarily or capriciously
Adequacy of alternatives considered in EA Agency considered only the exchange and No Action in depth; should have considered other feasible alternatives or excluded high-value parcels Agency evaluated four alternatives overall, thoroughly considered No Action and exchange, rejected purchase as infeasible and certain parcel-exclusions as ineffective; exclusion of parcels 5–6 served Forest Plan goals Held that the agency permissibly considered reasonable alternatives and validly rejected infeasible/ineffective ones
Adequacy of Revised EA’s impact analysis (direct, indirect, cumulative) Revised EA failed to adequately analyze effects on Wildcat Falls, perennial streams, old-growth, recreation, and consistency with Forest Plan Revised EA included specialist reports, surveys, maps, considered cumulative/direct/indirect effects, acknowledged small old-growth loss and recreation tradeoffs, and found impacts minor Held that the Revised EA provided sufficient evidence and analysis; agency gave the required hard look and did not act arbitrarily
Whether new information required supplementation (trail relocation; possible lynx tracks) and whether appraisal should be in record New Trail routing and lynx tracks are significant new information requiring supplementation; appraisal should be included in administrative record Agency prepared a Supplemental Information Report (SIR) and investigated lynx reports; concluded new info not significant; appraisal not necessary for review and not excluded in bad faith Held no supplementation required; SIR and investigations adequate. District court did not abuse discretion in striking the appraisal from the record

Key Cases Cited

  • Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action arbitrary and capricious standard)
  • Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (EA may be used to determine whether EIS required)
  • Dep't of Transp. v. Public Citizen, 541 U.S. 752 (NEPA imposes procedural duties; FONSI content)
  • Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (courts ensure agency took adequate hard look)
  • Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (supplementation not required for every new piece of information)
  • Klein v. U.S. Dep't of Energy, 753 F.3d 576 (6th Cir.) (EA/FONSI/EIS standards)
  • Meister v. U.S. Dep't of Agric., 623 F.3d 363 (6th Cir.) (deference to agency procedures)
  • Crounse Corp. v. Interstate Commerce Comm'n, 781 F.2d 1176 (EA-based FONSI review standard)
  • Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (agency discretion on alternatives scope)
  • Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir.) (scope-of-alternatives principles in NEPA context)
Read the full case