United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 4, 1997 Decided October 17, 1997
No. 96-5298
The Fund for Animals, Inc., et al.,
Appellants
v.
Jack Ward Thomas, Chief of the United States Forest
Service, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01177)
Eric R. Glitzenstein argued the cause for the appellants.
Katherine A. Meyer was on brief.
Jeffrey C. Dobbins, Attorney, United States Department of
Justice, argued the cause for the federal appellees. Lois J.
Schiffer, Assistant Attorney General, and Ellen J. Durkee,
Attorney, United States Department of Justice, were on brief.
Paul A. Lenzini, Special Assistant Attorney General, State
of Wyoming, argued the cause for appellee State of Wyoming.
William P. Horn and Douglas S. Burdin were on brief for
amicus curiae Wildlife Conservation Fund of America.
Thomas L. Albert entered an appearance.
Before: Williams, Ginsburg and Henderson, Circuit
Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The appellants,
five environmental groups and two individuals, challenge the
national policy of appellee United States National Forest
Service (Forest Service) which leaves regulation of game
"baiting" on National Forest System (Forest System) lands to
the states in which the lands lie.1 See Use of Bait in Hunting,
60 Fed. Reg. 14,720 (1995). The appellees maintain that in
promulgating the policy the Forest Service violated both the
National Environmental Policy Act (NEPA), 42 U.S.C.
ss 4321 et seq., by failing to first prepare an environmental
impact statement (EIS), and the Endangered Species Act
(ESA), 16 U.S.C. ss 1531 et seq., by failing to formally
consult the Fish and Wildlife Service (FWS) regarding the
policy. For the reasons set forth below, we conclude that the
policy does not constitute a "major federal action" triggering
NEPA's EIS requirement and that the Forest Service satis-
fied its duty to consult FWS. Accordingly, we affirm the
district court's judgment in favor of the Forest Service. See
Fund for Animals, Inc. v. Thomas, 932 F. Supp. 368 (D.D.C.
1996).
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1 "[T]he National Forest System consists of units of federally
owned forest, range, and related lands throughout the United
States and its territories, united into a nationally significant system
dedicated to the long-term benefit for present and future genera-
tions...." 16 U.S.C. s 1609(a). It includes national forest lands,
national grasslands and land utilization projects administered by the
National Forest Service. Id.
I.
"Baiting" is the practice of placing bait, either food or
scent, to attract wild game to a particular hunting location.
See 60 Fed. Reg. at 14,721; 932 F. Supp. at 369. Bear
baiting is prohibited in most states but remains lawful in
Alaska, Idaho, Maine, Michigan, Minnesota, New Hampshire,
Utah, Wisconsin and Wyoming.2 At one time Forest Service
officials regulated the practice in some states by issuing to
hunters and guides special use permits that imposed specific
conditions on their baiting activities. On March 23, 1992 the
Forest Service replaced its special use permit regime in
Wyoming with a "closure" order that established conditions
for bear baiting generally on Forest System lands in Wyo-
ming and prohibited the practice altogether in specified griz-
zly bear management areas and within set distances of vari-
ous amenities, such as open water, residences and roads. A
suit was filed challenging the regulatory change on the
ground that the Forest Service had failed to prepare an EIS
as required by NEPA. As part of a settlement the Forest
Service agreed to a temporary return to special use permits
in Wyoming pending a NEPA analysis.
Pursuant to the settlement the Forest Service prepared an
environmental analysis (EA), dated February 19, 1993, that
considered various options for regulating baiting on Forest
System lands in Wyoming, including retaining special use
permits, allowing Wyoming to assume regulation and banning
baiting altogether. After preparing a "biological evaluation"
of its preferred alternative, state regulation, the Forest Ser-
vice issued a "Decision Notice and Finding of No Significant
Impact" on April 2, 1993, in which it announced its decision to
transfer regulation of baiting to the State of Wyoming, which
__________
2 In its 1994 publication of the proposed national policy, discussed
infra, the Forest Service observed that the only states in which
bear baiting remained legal were Alaska, Idaho, Maine, Michigan,
Minnesota, New Hampshire, Utah, Washington, Wisconsin and
Wyoming. Since that time Washington State has outlawed the
practice. See Wash. Rev. Code Ann. s 77.16(1) (West elec. update
1997).
at that time had only recently adopted its own baiting regula-
tions. The document expressly concluded that the change to
state regulation in Wyoming was "not a major federal action"
and "will not significantly affect the quality of the human
environment." JA 329.
On April 6, 1993 the Forest Service requested formal
consultation with the FWS pursuant to ESA. On April 14,
1993 the FWS issued a "biological opinion" concluding that
"none of the alternatives analyzed are likely to jeopardize the
continued existence of any endangered or threatened spe-
cies," JA 332, but setting out specific non-discretionary condi-
tions to avert the "remote possibility that a grizzly bear may
be taken as a result of black bear baiting," JA 338, as well as
discretionary conservation recommendations. The new Wyo-
ming policy was never implemented because the Forest Ser-
vice, under threat of further litigation, declared a temporary
ban on all bear baiting on Forest System lands in Wyoming
while it prepared a comprehensive national baiting policy.
On March 14, 1994 the Forest Service published an interim
national policy that adopted on a national scale the approach
proposed for Wyoming in the 1993 policy. The interim policy
eliminated special use permits and left baiting regulation
entirely in the hands of the individual states, subject to
Forest Service closure of particular Forest System lands in
the event of inadequate state regulation. Use of Bait in
Hunting, 59 Fed. Reg. 11,765 (1994). A suit was filed chal-
lenging the interim policy and the Forest Service agreed to
withdraw it and return to the previous policy which prohibit-
ed bear baiting altogether in Wyoming and left the practice to
state regulation elsewhere. Accordingly, on April 14, 1994
the Forest Service issued a notice of withdrawal of the
interim policy and a request for public comment on a pro-
posed national policy which generally tracked the interim
policy. Use of Bait in Hunting, 59 Fed. Reg. 17,758 (1994).
On February 13, 1995 the Forest Service issued a biological
evaluation of the proposed national policy, concluding that it
"will programatically benefit (is not likely to adversely affect)
the bald eagle, gray wolf and grizzly bear on [Forest System]
lands." JA 518-19 (emphasis in original). The Forest Ser-
vice then requested review of its evaluation from FWS which
responded by letter dated February 27, 1995: "The proposed
National Policy appears to be consistent with our biological
opinion of April 14, 1993, and no information has become
available to suggest that additional terms and conditions are
necessary at this time." JA 522. Based on discussions with
Forest Service personnel and internal analyses, FWS stated
definitively in a March 14, 1995 letter: "[W]e concur in your
determination that the proposed national policy on baiting is
not likely to adversely affect listed species." JA 467. The
Forest Service then issued an EA which concluded that "the
environmental consequences" of the proposed policy "would
be negligible," JA 485, noting that the policy "provides safe-
guards in all States allowing baiting," JA 486.
On March 15, 1995 the Forest Service issued a "Decision
Notice and Finding of No Significant Impact" which adopted
the proposed national baiting policy and concluded that "an
environmental impact statement is not needed" because its
"actions are not a major Federal action, individually or cumu-
latively, and will not significantly affect the quality of the
human environment." JA 555. The Forest Service published
the final policy on March 20, 1995, stating:
Having considered the comments received, the Forest
Service is adopting a final policy on the use of bait on
National Forest System lands. The policy retains the
long-standing reliance on State regulation of baiting resi-
dent game. Where State law and regulation permit
baiting the practice is permitted on National Forest
System lands unless the authorized officer determines on
a site specific basis that the practice conflicts with Feder-
al laws or regulations, or forest plan direction, or would
adversely affect other forest uses or users.
60 Fed. Reg. at 14,722.
On June 21, 1995 the appellants filed this suit challenging
the final policy. On August 8, 1996 the district court granted
summary judgment in the Forest Service's favor. The appel-
lants appeal the judgment.
II.
The appellants raise the same two arguments here as
below: that the Forest Service (1) failed to prepare an EIS as
required by NEPA and (2) failed to formally consult with and
obtain a final biological opinion from FWS as required by
ESA. We address each statute separately.
A. NEPA
First, the appellants contend that an EIS was required
under NEPA because the new policy was a "major Federal
action[ ] significantly affecting the quality of the human envi-
ronment" within the meaning of NEPA s 102, 42 U.S.C.
s 4332. Section 102 requires that federal agencies
include in every recommendation or report on proposals
for legislation and other major Federal actions signifi-
cantly affecting the quality of the human environment, a
detailed statement by the responsible official on
(i) the environmental impact of the proposed ac-
tion....
42 U.S.C. s 4332(2)(C). It is clear from this language that
the EIS requirement is triggered only by a "major Federal
action[ ]." Thus, where there is no such action, there is no
EIS obligation. See Macht v. Skinner, 916 F.2d 13 (D.C. Cir.
1990); District of Columbia v. Schramm, 631 F.2d 854, 862
(D.C. Cir. 1980). Because we conclude the national baiting
policy is not a major federal action, the Forest Service has no
EIS obligation.
Assuming that the final policy constitutes federal "action"
at all--because it implements the existing federal policy of
leaving baiting regulation to individual states that have
adopted adequate regulatory provisions 3--we nevertheless
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3 The Forest Service's decision to refrain from future regulation
of baiting may not constitute "action" at all. See Defenders of
Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980) (NEPA did not
require Department of Interior to prepare EIS before "allowing"
Alaska Department of Fish and Game to conduct airborne shoot of
wolves on federal lands because complained of decision was "inac-
tion," not action); Cross-Sound Ferry Servs., Inc. v. ICC, 934 F.2d
agree with the Forest Service that it is not a "major" federal
action under NEPA. In the 1995 EA, the Forest Service
asserted that "Wyoming is the only State where special use
permits have been recently used to regulate placement of bait
for hunting" and that "the environmental consequences of
shifting from the Forest Service issuing permits for baiting in
Wyoming to the State Game and Fish Department adminis-
tering the program ... would be negligible." JA 485. Both
statements find substantial support in the administrative
record and compel the conclusion that adoption of the new
policy is not a major federal action requiring an EIS under
NEPA.
First, the record indicates that since 1988 the Forest
Service has regulated baiting in only three of the nine states
in which baiting remains lawful--Idaho, Utah and Wyoming.
Further, it appears that at least since spring 1993, when the
Forest Service agreed to ban baiting in Wyoming pending
adoption of a national policy, baiting in Idaho and Utah has
been subject to state, not federal, regulation. Thus, by 1995,
when the national policy was adopted, baiting remained feder-
ally regulated only in Wyoming and the shift at that time
from federal to state regulation had no effect outside Wyo-
ming.4 As for Wyoming itself, the effect there was minimal
because the substantive requirements of Wyoming's regula-
tions vary only insignificantly from those of the federal
special use permit conditions they replaced. The Wyoming
regulations prohibit baiting in grizzly bear habitats, as did the
federal conditions, and impose equally stringent limitations on
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327, 334 (D.C. Cir. 1991) (Interstate Commerce Commission's deter-
mination that ship company's services were "ferry services" exempt
from future regulation held not federal "action" under NEPA,
notwithstanding Commission's prior contrary determination, be-
cause declining to assert jurisdiction "plac[ed] the case squarely
within the 'inaction' rubric of Defenders of Wildlife").
4 One of the Forest Service's justifications for promulgating the
interim policy in 1994 was that "[i]t is unfair to continue the bear
baiting prohibition in Wyoming when such a prohibition is not in
effect on other National Forest System lands in other States where
the practice is permitted...." 59 Fed. Reg. at 11,766.
the number of baits per permittee, bait density, the distance
of baits from roads, trails and camping and picnic grounds,
the composition of baits, removal time after hunting season
and placement of identifying information at baiting sites.5
Because the new national policy maintained the substantive
status quo, it cannot be characterized as a "major federal
action" under NEPA. See Committee for Auto Responsibili-
ty v. Solomon, 603 F.2d 992, 1002-03 (D.C. Cir. 1979) ("The
duty to prepare an EIS normally is triggered when there is a
proposal to change the status quo.") (footnote omitted); Sier-
ra Club v. Andrus, 581 F.2d 895, 902 (D.C. Cir. 1978) ("In
general, however, if there is no proposal to change the status
quo, there is in our view no 'proposal for legislation' or 'other
major Federal action' to trigger the duty under NEPA to
prepare an EIS."), rev'd in other respect, 442 U.S. 347 (1979).
"The[r]e being no 'major Federal action,' the Agency was not
required to prepare an environmental impact statement."
District of Columbia v. Schramm, 631 F.2d at 862 (footnote
omitted).
B. ESA
Next, the appellants assert that the Forest Service violated
its duty under ESA to obtain a biological evaluation from
FWS before adopting the final policy in 1995. "Section 7(a)
of the ESA provides that each agency shall, in consultation
with FWS, 'insure that any action authorized, funded, or
carried out by such agency ... is not likely to jeopardize the
continued existence of any endangered species or threatened
species....' " American Iron & Steel Inst. v. EPA, 115 F.3d
979, 1003 (D.C. Cir. 1997) (quoting 16 U.S.C. s 1536(a)(2)).
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5 The Wyoming regulations exceed the former federal require-
ments in requiring that all baits be enclosed in "a rigid container of
wood, metal or plastic no larger than eight cubic feet." JA 239.
The only respect in which the federal restrictions may have exceed-
ed Wyoming's was in their requirement, for the Bridger Teton
National Forest only, that a bait "consist of no more than 25 pounds
of animal parts" and not include "animal carcasses." JA 169.
To the extent that there was an ESA consultation obligation,6
the Forest Service and FWS fulfilled it by engaging in
"informal consultation" in February and March 1995 pursuant
to the "joint regulations" promulgated by FWS and the
National Marine Fisheries Service. See 50 C.F.R. s 402.13(a)
("Informal consultation is an optional process that includes all
discussions, correspondence, etc., between the Service and the
Federal agency or the designated non-Federal representative,
designed to assist the Federal agency in determining whether
formal consultation or a conference is required. If during
informal consultation it is determined by the Federal agency,
with the written concurrence of the Service, that the action is
not likely to adversely affect listed species or critical habitat,
the consultation process is terminated, and no further action
is necessary.").
For the preceding reasons, the judgment of the district
court is
Affirmed.
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6 If promulgation of the policy constituted "inaction," see supra
note 3, there most probably would have been no "agency action" to
trigger the ESA consultation requirement.