Habitat Education Center v. U.S. Forest Service

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-1672

H ABITAT E DUCATION C ENTER, et al.,

Plaintiffs-Appellants,
v.

U.S. F OREST S ERVICE, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-C-0578—Lynn Adelman, Judge.

A RGUED F EBRUARY 26, 2010—D ECIDED JUNE 29, 2010

Before F LAUM and W OOD , Circuit Judges, and S T . E VE,
District Judge.Œ
F LAUM, Circuit Judge. Habitat Education Center appeals
from a grant of summary judgment to the United States
Forest Service in a lawsuit challenging the environ-

Œ
The Honorable Amy J. St. Eve, District Judge for the Northern
District of Illinois, sitting by designation.
2 No. 09-1672

mental impact statement (“EIS”) prepared by the agency
in connection with a forest management project in
the Chequamegon-Nicolet National Forest in northern
Wisconsin. The project at issue is a timber sale known as
the “Twentymile” project. In the district court, the plain-
tiffs made several challenges to the adequacy of the EIS.
On appeal, they argue only that the EIS failed to
describe the reasonably foreseeable cumulative effects
of another proposed timber sale, known as the “Twin
Ghost” project. We conclude that at the time the EIS
was being prepared, the Twin Ghost project was too
nebulous to be discussed in any meaningful way, and
thus affirm the district court’s grant of summary judg-
ment to the Forest Service.

I. Background
The Chequamegon-Nicolet National Forest covers
approximately 1.5 million acres in Northern Wisconsin.
It consists of many lakes, rivers, and streams, is home to
over 300 species of wildlife, and is visited by approxi-
mately 2.1 million people each year. The forest occupies
land that was once clear-cut by nineteenth-century
logging and forest fires. In the 1920s, the federal govern-
ment began purchasing the land and managing it as a
national forest. Because it emerged from the govern-
ment’s purchases of individual tracts of land, it is made
up of a patchwork of public and private lands. In 1933,
these were aggregated into two noncontiguous units.
These came to be known as the Nicolet and Chequamegon
units. Since 1993, these units have been managed
No. 09-1672 3

as a single entity, now known as Chequamegon-Nicolet
National Forest, although the two units remain noncon-
tiguous. (The Nicolet unit is located in the eastern
half of northern Wisconsin, and the Chequamegon unit
is located in the western half of northern Wisconsin.)
Since 2002, the Forest Service has proposed seventeen
timber projects covering an area of approximately 130,000
acres. These timber projects are designed to advance a
number of forest management goals; in particular, they
are intended to ensure a diversity of tree ages in the
forest (most of the trees are the same age because they
were planted in the 1920s and 1930s when the forest
was being restored.) The plaintiffs in this litigation
have been involved in challenges to most of these
projects through the administrative environmental
review process. The plaintiffs have appealed final agency
actions to the district court in six cases, settled with the
Forest Service in four cases, and have refrained from
challenging four timber sale approvals.
On December 23, 2004, the Forest Service announced
the proposed Twentymile timber sale. This proposed sale
was located immediately to the northwest of a previous
timber sale, the Cayuga sale. The proposed Twentymile
project would involve logging and roadbuilding on 8,875
acres of public land near Clam Lake in Bayfield County,
Wisconsin. During administrative review, the plaintiffs
submitted extensive commentary and argued that the
cumulative effects from the Twentymile and Cayuga
projects would have a significant impact on wild-
life habitat. In particular, plaintiffs argued that the
4 No. 09-1672

Twentymile project would put the American Pine Marten
at risk.1
Over the plaintiffs’ objections, the Forest Service
released its final EIS and Record of Decision (“ROD”) in
February 2007, authorizing the Twentymile project to
move forward largely as originally proposed. The
plaintiffs brought an administrative appeal pursuant to
Forest Service regulations. That appeal was denied on
May 24, 2007.
On June 22, 2007, the plaintiffs filed a civil complaint
challenging the Twentymile Final EIS and ROD in the
Eastern District of Wisconsin. Among other claims, plain-
tiffs contended that the Forest Service had violated the
National Environment Policy Act’s (“NEPA”) require-
ment to fully and fairly analyze the cumulative environ-
mental impacts of all “past, present, and reasonably
foreseeable future actions” across the forest.
After the parties had briefed cross-motions for sum-
mary judgment and shortly before the scheduled oral

1
The American Pine Marten is a “state-listed” endangered
animal because its Wisconsin population is very small. The
pine marten is a member of the weasel family, similar in size
to a small house cat or full-bodied mink. By 1925, logging
had driven the pine marten out of Wisconsin entirely.
The Wisconsin Department of Natural Resources began rein-
troducing the pine marten in 1979. That reintroduction has not
been particularly successful; however, the pine marten is not
endangered in other areas of its range, and the Chequamegon
pine marten population is not a significant portion of the
total pine marten population.
No. 09-1672 5

argument, the Forest Service announced another new
timber sale, the Twin Ghost project, located immediately
to the south of the Twentymile timber sale and to the
southwest of the Cayuga timber sale. The Twin Ghost
project is not mentioned in the Twentymile EIS or ROD.
However, it was identified in internal Forest Service
documents in the Twentymile administrative record as a
project “in the timber pipeline.” The district court ordered
supplemental briefing on the Twin Ghost project.
In their supplemental brief, the Forest Service
conceded that the Twin Ghost project falls within the
Forest Service’s designated cumulative effects area for the
Twentymile project and that it did not consider the
Twin Ghost project during the EIS process for the
Twentymile project. However, the Forest Service argued
that the project was not reasonably foreseeable and thus
its omission from the EIS was not error.
As part of the supplemental briefing, the Forest Service
submitted a detailed affidavit describing the history of
the Twin Ghost project. Forest Service staff first began
to “think about” what types of management activity
might be needed in the Twin Ghost area in 2005. The
first step was to identify the potential goals of a restora-
tion project conducted at some point in the future. This
meant collecting data about the existing state of the
vegetation, wildlife, roads, and other resources in the
Twin Ghost area. This process began in the spring and
summer of 2005 and was completed in the fall of 2007.
(Recall that the final Twentymile EIS and ROD were
released in February 2007, Habitat’s administrative
6 No. 09-1672

appeal was denied in May 2007, and this suit was
initiated on June 22, 2007.) In November 2007, the
Forest Service identified a preliminary project boundary
and an initial list of tree stands to consider for inclusion
in the project. In January 2008, the Forest Service devel-
oped a list of goals for the Twin Ghost project. However,
in February 2008, the Forest Service put planning for
Twin Ghost on hold to focus on other priorities, and
did not return its attention to Twin Ghost until
October 2008, when it was added to the Forest Service’s
Schedule of Proposed Actions. In November 2008, Twin
Ghost was disclosed to the public. As of the date of the
district court’s decision, the Forest Service continued
to receive public comment about the proposal and no
decision to implement the proposal had been made.
On January 12, 2009, the district court issued an opin-
ion granting summary judgment to the Forest Service.
Among other holdings not challenged here, the district
court determined that the Twin Ghost timber sale
was not “reasonably foreseeable” under NEPA. Plaintiffs
appeal, and we now affirm.

II. Analysis
We review de novo a district court’s grant of summary
judgment. Schoenfeld v. Apfel, 237 F.3d 788, 792 (7th Cir.
2001). Review of agency action under NEPA is governed
by the Administrative Procedure Act (“APA”) and is
limited to determining whether an agency action is
“arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
No. 09-1672 7

When, as here, plaintiffs’ claim is that an agency failed
to prepare a satisfactory EIS, “the only role for a court is
to insure that the agency has taken a ‘hard look’ at en-
vironmental consequences.” Kleppe v. Sierra Club, 427
U.S. 390, 410 n.21 (1976); Environmental Law & Policy Ctr. v.
U.S. Nuclear Regulatory Comm’n, 470 F.3d 676, 682 (7th
Cir. 2006).
However, before reaching the merits of the plaintiffs’
argument, we must address the Forest Service’s claim
that the plaintiffs have forfeited their Twin Ghost argu-
ment by not raising it in the administrative proceeding
or in the district court before cross-motions for sum-
mary judgment were filed. In support of its argument,
the Forest Service relies on two cases: Public Citizen v.
United States Dept. of Transp., 541 U.S. 752 (2004), and
Kleissler v. U.S. Forest Service, 183 F.3d 196 (3d Cir. 1999).
In Public Citizen, the Supreme Court held that plaintiffs
had forfeited their argument that the agency failed to
consider alternatives because the plaintiffs had not raised
new alternatives or urged the agency to consider new
alternatives during the administrative process. 541 U.S.
at 764. In Kleissler, the Third Circuit held that the
plaintiff had failed to exhaust his administrative rem-
edies by not presenting certain arguments in writing,
instead raising them only informally at certain public
meetings. 183 F.3d at 200-02.
We need not reach the merits of this forfeiture argu-
ment, because the argument itself has been waived.
When the district court ordered supplemental briefing
on the question of whether Twin Ghost was a reasonably
8 No. 09-1672

foreseeable future project, it asked the parties to discuss
whether this question had been forfeited or waived. The
Forest Service responded with only a short footnote in
their supplemental brief. In this footnote, the Forest
Service noted that the plaintiffs did not raise Twin Ghost
before the agency. However, they did not claim, even in
a conclusory manner, that this amounted to waiver,
instead making a somewhat oblique reference to Vermont
Yankee Nuclear Power Corp. v. Natural Res. Def. Council,
435 U.S. 519 (1978), citing it for the proposition that
parties “who wish to participate [must] structure their
participation so that it is meaningful, so that it alerts the
agency to [parties’] positions and contentions.” The
district court did not address the forfeiture issue in its
opinion, presumably concluding from the lack of argu-
ment that the Forest Service did not intend to raise
this issue.
It is not surprising that the Forest Service declined to
press the argument that the plaintiffs should have
argued earlier for the Twin Ghost project to be included
in the EIS. This argument cuts directly against the
Forest Service’s main argument: that the Twin Ghost
project was so far from taking shape that not even the
Forest Service, let alone an outsider, could have said
anything meaningful about it. The Forest Service did not
make any attempt below to establish that the plaintiffs
were aware of the Twin Ghost project and could have
raised it during the administrative process. Having
made the decision not to advance a forfeiture claim
below, the Forest Service cannot change tacks and
advance such an argument here.
No. 09-1672 9

On the merits, the plaintiffs argue that Twin Ghost was
either a “present” or a “reasonably foreseeable future
action” and thus should have been discussed in the EIS.
See 40 C.F.R. § 1508.7 (requiring agencies to consider the
cumulative environmental impacts of all “past, present,
and reasonably foreseeable future actions”). They rely
principally on the fact that during the EIS process, one
Forest Service employee noted that Twin Ghost was “in
the timber pipeline.” 2 The Forest Service responds by
arguing that while it knew in a general sense that there
would be a project in the Twin Ghost area in the future,
it did not know the scope or aims of this future project
and thus could not speak meaningfully about it.
Plaintiffs rely heavily on Mid States Coalition for Progress
v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003). In Mid
States, the Eighth Circuit considered a challenge to the
Surface Transportation Board’s approval of a railroad
company’s proposal to construct 280 miles of new rail
line to reach the coal mines of Wyoming’s Powder River
Basin. Plaintiffs argued that the Board had failed to
consider the impact on air quality that would result
from the availability of cheaper coal after the rail lines
were built. The defendant acknowledged that this was
a potential consequence of the new lines but argued that
it could not predict how many new plants would be
built or how much coal these plants would consume.
The Eighth Circuit rejected this argument, holding that

2
This email, sent June 30, 2005, was included in the administra-
tive record for the Twentymile project.
10 No. 09-1672

“when the nature of the effect is reasonably foreseeable
but its extent is not, we think that the agency may not
simply ignore the effect.” Id. at 549-50 (emphasis in origi-
nal). Here, plaintiffs argue that any project in the
Twin Ghost area would include at least “some logging,”
and thus the agency should have discussed the potential
impact of logging in the Twin Ghost area even if the
extent of that logging was unknown.
The Forest Service, in contrast, relies on Environmental
Protection Information Center v. United States Forest Service
(EPIC), 451 F.3d 1005 (9th Cir. 2006). In EPIC, the Ninth
Circuit held that “although it is not appropriate to
defer consideration of cumulative impacts to a future
date when meaningful consideration can be given now,
if not enough information is available to give mean-
ingful consideration now, an agency decision may not
be invalidated based on the failure to discuss an
inchoate, yet contemplated, project.” Id. at 1014. Several
other circuits have similarly suggested that a project
is not “reasonably foreseeable” if not enough is known
to provide a meaningful basis for assessing its impact. See
Town of Marshfield v. FAA, 552 F.3d 1, 4-5 (1st Cir. 2008)
(discussion of cumulative impacts of future action not
required where “some . . . action was foreseeable but one
could only speculate as to which . . . measures would be
implemented); City of Oxford v. FAA, 428 F.3d 1346,
1353 (11th Cir. 2005) (“An agency must consider the
cumulative impacts of future actions only if doing so
would further the informational purposes of NEPA”);
Society Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168,
182 (3d Cir. 2000) (“[P]rojects that the city has merely
No. 09-1672 11

proposed in planning documents are not sufficiently
concrete to warrant inclusion in the [environmental
analysis] for the . . . project at issue here.”).
We agree with our sister circuits that an agency deci-
sion may not be reversed for failure to mention a project
not capable of meaningful discussion. To the extent
plaintiffs are arguing that the Eighth Circuit’s decision in
Mid States is in tension with this consensus, we reject
their reading of that decision. The court in Mid States
concluded that adverse effects from the readily fore-
seeable increase in coal sales were certain to occur and
questioned the defendant’s contention that those effects
could not be meaningfully forecast. 345 F.3d at 549. Thus,
it is apparent that the Eighth Circuit thought some worth-
while discussion of the impact of the railroad on coal
consumption could be had. It may well be that where,
as in Mid States, the challenged cumulative effects are
predictable, even if their extent is not, they may be
more likely to be capable of meaningful discussion than
in a case where the challenged omission is a future
project so nebulous that the agency cannot forecast its
likely effects. In any event, an agency does not fail to
give a project a “hard look” simply because it omits from
discussion a future project so speculative that it can say
nothing meaningful about its cumulative effects. To hold
otherwise would either create an empty technicality—
a requirement that agencies explicitly state that they
lack knowledge about the details of potential future
projects—or paralyze agencies by preventing them from
acting until inchoate future projects take shape (by
which time, presumably, new inchoate projects would
12 No. 09-1672

loom on the horizon). This unreasonable result would
replace the “tyranny of small decisions” with the impossi-
ble requirement that all agency action be comprehensive.
To illustrate the danger that the cumulative effects
requirement was designed to protect against, it is useful
to discuss another case relied on by the plaintiffs, Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d
1208 (9th Cir. 1998). In Blue Mountains, plaintiffs argued
that the Forest Service had failed to consider the cumula-
tive effects of several timber sales in a fire-ravaged
portion of the Umatilla National Forest. Following the
fire, the Forest Service proposed five logging projects in
the same watershed, but performed no assessment of
the combined impact of these projects. Id. at 1214-15.
Importantly, these five projects were to proceed together
as part of what the Forest Service itself acknowledged
was a “coordinated [fire] recovery strategy.” Id. at 1215.
The Ninth Circuit enjoined the sales and ordered the
Forest Service to prepare a comprehensive EIS. Id.
The contrast between this case and Blue Mountains is
instructive. In Blue Mountains, the nature of all five
logging projects was known in advance of the prepara-
tion of each project’s environmental assessment. Indeed,
all five sales had been disclosed to logging companies,
with estimated sale quantities and timelines, before the
environmental assessment at issue had even been pre-
pared. Id. Here, the Forest Service had not yet developed
the goals for the Twin Ghost project, let alone forecast
the quantity and timing of logging that would take place.
Not until the fall of 2007, months after the agency
No. 09-1672 13

issued the final EIS and ROD for the Twentymile project,
had the Forest Service even gathered enough informa-
tion about the existing state of Twin Ghost area to
identify the goals of the Twin Ghost project. The environ-
mental assessments at issue in Blue Mountains made no
reference to the other contemporaneous timber sales, be
it as past, present, or future sales. Here, because the
Twin Ghost project is being developed well after the
Twentymile proposal, its EIS must discuss the com-
bined effects of Twin Ghost and Twentymile even if the
Twentymile EIS cannot. Cf. EPIC, 451 F.3d at 1014 (“Once
contemplated actions become more formal proposals,
later impact statements on those projects will take into
account the effect of the earlier proposed actions.”) Finally,
in Blue Mountains there were “substantial questions” for
a cumulative effects analysis to address. Id. Here, because
of the lack of information about the nature and scope of
the Twin Ghost project, plaintiffs have not raised sub-
stantial questions about the cumulative effects of the
two projects, instead arguing only that they should have
been informed that some action might take place in
the Twin Ghost area in the near future. Plaintiffs
suggested that they would have “tailor[ed]” their com-
ments differently had they known that the Twin Ghost
project would be coming in the future, but they do not
explain in any meaningful detail what additional analysis
would have been possible from only the limited knowl-
edge that some logging might take place in the Twin
Ghost area in the future. Relatedly, they do not explain
why, if the cumulative effects of the two projects will be
harmful, this cannot be adequately addressed as part of
the Twin Ghost EIS.
14 No. 09-1672

As the district court noted, some notice of Twin Ghost
in the Twentymile EIS would have improved the docu-
ment. It seems that the better practice would be to err
on the side of disclosure, both to aid the public in under-
standing the Forest Service’s plans and to avoid costly
litigation. But without some indication that meaningful
analysis could have accompanied this mention, it is not
a substantial enough ground to invalidate the EIS and
start over. The omission of Twin Ghost does not render
the EIS any less of a hard look at the environmental
consequences of the Twentymile project or cast any
doubt on the conclusions drawn in that report.

III. Conclusion
For these reasons, we A FFIRM the judgment of the
district court.

6-29-10