Newton Cty. Wildlife v. George Rogers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 97-1852
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Newton County Wildlife Association, *
et al., *
*
Plaintiffs - Appellants, *
*
v. * Appeal from the United States
* District Court for the
George Rogers, et al. * Eastern District of Arkansas.
*
Defendants - Appellees, *
*
Arkansas Forestry Association, et al., *
*
Intervenors - Appellees. *
___________

Submitted: December 10, 1997
Filed: April 1, 1998
___________

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
___________

LOKEN, Circuit Judge.

Newton County Wildlife Association, the Sierra Club, and certain
individuals (collectively “the Wildlife Association”) sued the United
States Forest Service and four of its employees (collectively the “Forest
Service”) to enjoin or set aside four timber
sales in the Ozark National Forest. The district court1 denied a
preliminarily injunction under the Wild and Scenic Rivers Act, 16 U.S.C.
§§ 1271, et seq., or the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et
seq., and we affirmed. Newton County Wildlife Ass’n v. United States
Forest Service, 113 F.3d 110 (8th Cir. 1997), cert. denied, 1998 WL 69365
(Feb. 23, 1998). The Wildlife Association now appeals the district court’s
decision to limit its review to the administrative record, Newton County
Wildlife Ass’n v. Rogers, 948 F. Supp. 50 (E.D.Ark. 1996), and its
subsequent grant of summary judgment in favor of the Forest Service. We
affirm.

I. Background.

The Forest Service manages the national forests for “outdoor
recreation, range, timber, watershed, and wildlife and fish purposes.” 16
U.S.C. § 528. The National Forest Management Act, 16 U.S.C. §§ 1600, et
seq. (“NFMA”), requires the Forest Service to develop Land and Resource
Management Plans (“Forest Plans”) for the management of national forests.
See 16 U.S.C. § 1604. Individual projects, including timber sales, are
assessed in light of the Forest Plan. See 16 U.S.C. § 1604(i); Sierra Club
v. Robertson, 28 F.3d 753, 755 (8th Cir. 1994). The Forest Service issued
a ten-year Forest Plan for the 1,118,500-acre Ozark National Forest in
1986. The Plan was accompanied by an Environmental Impact Statement
(“EIS”) analyzing the environmental consequences of timber sales, including
the impact of harvesting and road construction on water quality, wildlife
and fish, wilderness areas, and threatened, endangered, and sensitive
wildlife and plant species.

In the early 1990’s, the Forest Service proposed four timber sales
in “general” areas of the Buffalo Ranger District (areas administered under
the Plan to yield a high level of timber). The proposed sales -- Sand Gap,
Round Hill, Junction, and Sandy

1
The HONORABLE WILLIAM R. WILSON, JR., United States District Judge
for the Eastern District of Arkansas.

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Springs -- involve timber harvesting on a total of 3,011 acres of forest
and require 13.64 miles of logging road reconstruction and 5.08 miles of
new road. For each proposed sale, the Forest Service mailed notices to
affected and interested members of the public, including the Wildlife
Association, describing the proposal and soliciting comments. After
receiving responses, the Forest Service studied site-specific environmental
effects and developed Environmental Assessments (“EAs”) evaluating the
environmental impacts of various sale alternatives, including the “no
action” alternative. Biological evaluations were prepared analyzing likely
effects on species known to inhabit the Forest. The District Ranger
circulated the EAs with requests for public comment prior to issuing
Decision Notices.

The Forest Service issued Decision Notices for Sand Gap and Round
Hill on May 27, 1994. Administrative appeals were rejected by September
1994, and the sales took place that fall. Purchasers commenced road
construction and logging in the spring of 1995. The Forest Service issued
Decision Notices for Junction and Sandy Springs on June 19 and May 22,
1995, and rejected administrative appeals in the fall of 1995. The
Wildlife Association filed this lawsuit on December 20, 1995. The second
amended complaint alleges that plaintiffs “seek judicial review of final
agency action in approving” the four timber sales. Counsel for the Forest
Service advised at oral argument that approximately three-fourths of road
work and timber harvesting in the four sale areas is now completed.

The Forest Service approved the timber sales acting under NFMA. That
Act “provides the mechanism for obtaining judicial review.” See Defenders
of Wildlife v. Administrator, E.P.A., 882 F.2d 1294, 1303 (8th Cir. 1989).
Though the Wildlife Association argues that the timber sales violate no
less than six substantive federal statutes, it persistently fails to relate
those arguments to the standard for judicial review set forth in the
Administrative Procedure Act, which provides that this type of final agency
action may be set aside if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See Citizens to
Preserve Overton Park, Inc.,

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v. Volpe, 401 U.S. 402, 414-15 (1971); 5 U.S.C. § 706(2)(A). Thus, we deal
here primarily with a single cause of action for APA review -- not, as the
Wildlife Association pleaded, with multiple statutory claims for relief.

II. The Record on Review.

APA review of agency action is normally confined to the agency’s
administrative record. See Camp v. Pitts, 411 U.S. 138, 142 (1973). If
the agency record is for some reason inadequate, “the proper course, except
in rare circumstances, is to remand to the agency for additional
investigation.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985). When as here there is a contemporaneous administrative record and
no need for additional explanation of the agency decision, “there must be
a strong showing of bad faith or improper behavior” before the reviewing
court may permit discovery and evidentiary supplementation of the
administrative record. Overton Park, 401 U.S. at 420; see Cronin v. United
States Dep’t of Agric., 919 F.2d 439, 444 (7th Cir. 1990); Maxey v.
Kadrovach, 890 F.2d 73, 77 (8th Cir. 1989), cert. denied, 495 U.S. 933
(1990).

We conclude the district court did not abuse its discretion by
conducting its judicial review on the voluminous administrative record
compiled by the Forest Service for the four timber sales. See Missouri
Coalition for the Env’t v. Corps of Engineers, 866 F.2d 1025, 1031 (8th
Cir.) (standard of review), cert. denied, 493 U.S. 820 (1989). The court
properly excluded the Wildlife Association’s voluminous evidence concerning
post-sale logging and road construction because its lawsuit challenges the
Forest Service’s timber sales decisions, not post-sale activities
implementing the sales. On appeal, the Wildlife Association argues this
evidence should be admitted by the reviewing court under the bad faith
exception to record review because of the discrepancy between the actual
logging and road construction taking place, and the environmentally less
damaging activity studied in the pre-sale Environmental Assessments (an
asserted discrepancy the agency emphatically denies). Like the

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district court, we find this threshold showing of bad faith woefully
inadequate to justify going outside the administrative record.

The Wildlife Association further argues that it must be allowed to go
outside the agency record to demonstrate that the Forest Service violated
its duty under the National Environmental Policy Act (“NEPA”) to consider
all relevant environmental factors. See 42 U.S.C. § 4332. We need not
decide whether to adopt the Second Circuit’s view that courts should be
more willing to go outside the administrative record in considering NEPA
challenges. See National Audubon Soc’y v. Hoffman, 132 F.3d 7, 14-16 (2d
Cir. 1997); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368,
1384-85 (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978). Here, the
Wildlife Association wishes to supplement the record with evidence of post-
sale implementation activity, information that was not available to the
Forest Service when it prepared the Environmental Assessments. As we said
in Lockhart v. Kenops, 927 F.2d 1028, 1036 (8th Cir.), cert. denied, 502
U.S. 863 (1991):

This court’s task is to make sure the Forest Service considered
the information available at the time it made its decision; if
the agency’s decision was proper at the time it was made, our
inquiry is at an end.

Accord Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58, 63-64 (4th Cir.
1991), cert. denied, 502 U.S. 1092 (1992). To the extent the Wildlife
Association’s extra-record proffers consisted of expert opinions and
studies analyzing environmental impacts and conditions known prior to the
sales, the Association failed to provide adequate justification for its
failure to present those materials to the agency during its decision-making
process. See Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 553-54 (1978).

Finally, the Wildlife Association argues that it should be entitled
to go outside the administrative record because it has invoked the citizen-
suit provisions of the

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Endangered Species Act, 16 U.S.C. § 1540(g)(1) (“ESA”), and the Clean
Water Act, 33 U.S.C. § 1365(a)(1). We disagree. These statutes provide
for judicial review but do not prescribe a standard for that review.
“[W]here Congress has simply provided for review, without setting forth the
standards to be used or the procedures to be followed, this Court has held
that consideration is to be confined to the administrative record and that
no de novo proceeding may be held.” United States v. Carlo Bianchi & Co.,
373 U.S. 709, 715 (1963); see Cabinet Mountains Wilderness/Scotchman’s Peak
Grizzly Bears v. Peterson, 685 F.2d 678, 685-86 (D.C. Cir. 1982).

III. The Merits.

A. Wild & Scenic Rivers Act. WSRA requires federal agencies
responsible for land adjacent to designated river components to protect
designated rivers, with “[p]articular attention” paid to “scheduled timber
harvesting, road construction, and similar activities which might be
contrary to the purposes of this chapter.” 16 U.S.C. § 1283(a). In our
prior opinion, we noted that “the Forest Service may well have WSRA
compliance obligations in approving timber sales (an issue not before us).”
113 F.3d at 112-113. On this appeal, the Wildlife Association argues that
the timber sales violate the Forest Service’s WSRA duties to protect the
water quality of designated segments of the Buffalo River and Richland
Creek, and to “cooperate with the Secretary of the Interior and with the
appropriate State water pollution control agencies for the purpose of
eliminating or diminishing the pollution of waters of the river.” 16
U.S.C. § 1283(c).

The Wildlife Association points to nothing in the administrative
record establishing that the Forest Service acted arbitrarily and
capriciously in finding that logging and road work will have an
insignificant effect on WSRA-designated river components. The EAs
thoroughly discuss the impact of the sales on water quality of the Buffalo
River and Richland Creek and call for mitigation measures designed to
protect affected waters. We reject the Wildlife Association’s contention
that the Forest

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Service failed to cooperate with state water pollution control agencies
simply because the Arkansas Department of Pollution Control and Ecology and
the Arkansas Natural and Scenic Rivers Commission opposed the sales. The
record reflects that the Forest Service considered the State’s objections
even though they were not expressed until after the comment period ended.

B. National Forest Management Act. The Wildlife Association argues
that the timber sales are inconsistent with 1991 amendments to the Forest
Plan and EIS for the Ozark National Forest because the Forest Service (1)
failed to timely make available an inventory map of all forest roads with
their management objectives; (2) failed to designate “Special Interest”
areas; (3) increased net logging road mileage within the
Forest; and (4) authorized road construction and logging within 198 feet
of the Highlands Trail. None of these relatively insignificant issues
comes close to establishing that approval of the sales was arbitrary or
capricious. For example, the Forest Service explains that the Forest
Plan’s requirement of no net increase in logging roads is a forest-wide
concept, and the four sales in question involve less than ten miles of new
road and reconstruction of less than twenty miles of road.

C. National Environmental Policy Act. NEPA requires all federal
agencies, including the Forest Service, to prepare an EIS for all “major
Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). Council on Environmental Quality
regulations provide that an agency may prepare an EA to determine whether
an action significantly affects the environment. If the agency determines
based upon the EA not to prepare an EIS, it makes and publishes a finding
of no significant impact, or “FONSI.” See 40 C.F.R. § 1501.4. An EA is
a “rough-cut, low-budget environmental impact statement designed to show
whether a full-fledged environmental impact statement . . . is necessary.”
Cronin, 919 F.2d at 443. If an agency has prepared an EIS for a large
action, the regulations encourage it to incorporate EIS conclusions into
EAs prepared for smaller, subsequent actions included within the broad
program. See 40 C.F.R. § 1502.20.

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 In this case, the Forest Service prepared an EIS for the broad Forest
Plan and EAs for the four timber sales. The Wildlife Association argues
that the Forest Service violated NEPA by not preparing an EIS for the
timber sales. It further contends that the four EAs failed to analyze the
cumulative effects of the sales on watershed resources, fish, and wildlife.
We “must affirm if we find the Service took a ‘hard look’ at the project,
identified the relevant areas of environmental concern, and made a
convincing statement for its FONSI.” Sierra Club v. United States Forest
Service, 46 F.3d 835, 838-39 (8th Cir. 1995).

The Forest Plan EIS considered cumulative impacts and forest
management issues for the Ozark National Forest as a whole. Each timber
sale EA is over one hundred pages long and is “tiered” to the Forest Plan
EIS, consistent with the policy behind 40 C.F.R. § 1502.20 to save money
and time by avoiding repetitive inquiries. While the EAs do not cross
reference each other, each expressly addresses cumulative environment
impacts. The EAs study areas significantly larger than the area to be
logged; for example, the Sandy Springs sale involves 1,871 acres, but its
EA considers environmental impacts on 26,699 acres. An “EA cannot be both
concise and brief and provide detailed answers for every question.” Sierra
Club, 46 F.3d at 840. Recognizing that federal agencies must study
cumulative environmental impacts and prepare comprehensive EIS’s when
appropriate, we conclude the Forest Service’s EAs were not arbitrary or
capricious compliance with its NEPA obligations in making these timber sale
decisions. See Kleppe v. Sierra Club, 427 U.S. 390, 410-14 (1976).

D. Clean Water Act. The Wildlife Association argues the Forest
Service failed to obtain necessary NPDES and dredge and fill permits for
the discharges of pollutants that will accompany logging and road
construction under the timber sales. See 33 U.S.C. §§ 1311(a), 1344.
These contentions are without merit. The Wildlife Association cites no
authority for the proposition that the Forest Service needs an NPDES permit
before contracting to allow others to harvest timber and build roads. The
Environmental Protection Agency, which administers the NPDES permit
program,

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has not intervened to support this contention, and EPA’s regulations
expressly provide, “it is the operator’s duty to obtain a permit.” 40
C.F.R. § 122.21(b). Moreover, EPA regulations do not include the logging
and road building activities cited by the Wildlife Association in the
narrow list of silvicultural activities that are point sources requiring
NPDES permits. See 33 U.S.C. §§ 1311(a), 1342(a), 1362(12), (14); 40
C.F.R. § 122.27(b)(1); 41 Fed. Reg. 24709, 24710 (June 18, 1976).
Similarly, logging and associated road building are exempt from dredge and
fill permit requirements so long as construction and maintenance comply
with best management practices. See 33 U.S.C. §§ 1344(f)(1)(A);
1344(f)(1)(E). The administrative record contains no evidence those
practices have not been followed.

The Wildlife Association next argues that the timber sales are
contrary to the State of Arkansas antidegradation policy and therefore
violate the Clean Water Act. See 33 U.S.C. § 1323(a). Assuming without
deciding that compliance with a state antidegradation policy is a
legitimate inquiry on APA review of this type of agency action, we conclude
the Arkansas statewide policy for nonpoint sources is so broadly stated
that the Forest Service was not arbitrary or capricious in concluding this
policy added nothing to its compliance obligations under federal
environmental laws.

E. Wilderness Act. The Wilderness Act of 1964 makes agencies that
administer wilderness areas responsible for preserving their wilderness
character. See 16 U.S.C. § 1133(b). The Arkansas Wilderness Act of 1984
designated parts of the Ozark National Forest as wilderness areas. See
Pub. L. No. 98-508, 98 Stat. 2349 (1984). Although the four timber sales
are not located within wilderness areas, the Wildlife Association argues
that the sales violate the Wilderness Act because the logging activities
are upstream and will degrade the quality of Buffalo River and Richland
Creek waters flowing through designated wilderness areas.

The district court rejected this argument based upon Section 7 of the
Arkansas Wilderness Act, which disclaims any congressional intent to create
“protective

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perimeters or buffer zones around each wilderness area.” 98 Stat. at 2352.
We agree. If the Forest Service prohibited an activity outside a
wilderness area “solely because of its potential effect on the Wilderness
area,” that prohibition would violate Section 7. Northwest Motorcycle
Ass’n v. United States Dep’t of Agric., 18 F.3d 1468, 1480 (9th Cir. 1994).
Moreover, the Forest Service thoroughly considered the effect of logging
and road construction on the water quality of the Buffalo River and its
tributaries, including Richland Creek, concluding that with mitigation
measures and best management practices the impact on water quality would
be insignificant. The Wildlife Association points to nothing in the
administrative record establishing that this analysis was arbitrary or
capricious.

F. Endangered Species Act. The Endangered Species Act requires
federal agencies to consult with the appropriate federal fish and wildlife
agency when their actions “may affect” an endangered or threatened species.
See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). The Wildlife
Association argues the Forest Service was arbitrary and capricious in
approving the sales before the United States Fish and Wildlife Service
determined whether the logging might significantly affect any listed
species. The Forest Service prepared a detailed biological “evaluation”
for each sale and found there was no effect on any listed or endangered
species. A finding of no effect obviates the need for consultation with
the Fish and Wildlife Service. See 50 C.F.R. § 402.14; Southwest Center
for Biological Diversity v. United States Forest Service, 100 F.3d 1443,
1447 (9th Cir. 1996). The Wildlife Association argues the Forest Service
was required to prepare biological “assessments” to decide whether to
consult with the Fish and Wildlife Service. See 16 U.S.C. § 1536(c).
However, a biological assessment is only required for “major construction
activities.” 50 C.F.R. § 402.12. Finally, the Wildlife Association argues
the Forest Service failed to make an adequate assessment of whether the
sales would affect the bald eagle. However, the biological evaluations and
the EAs specifically considered impacts on the bald eagle and its habitat
and determined that the sales would have no effect. Accordingly,

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nothing in the administrative record establishes that the Forest Service
was arbitrary or capricious in carrying out its ESA obligations regarding
these sales.

We have carefully considered all other arguments made by the Wildlife
Association and conclude they are without merit. The judgment of the
district court is affirmed. As the Wildlife Association is not a
prevailing party, its request for an award of attorney’s fees and costs on
appeal is denied. See 28 U.S.C. § 2412.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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