In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1322 & 10-1346
H ABITAT E DUCATION C ENTER, INC., et al.,
Plaintiffs-Appellants,
v.
U NITED S TATES F OREST S ERVICE, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
Nos. 2:04-cv-00254-LA and 2:03-cv-01023-LA—Lynn Adelman, Judge.
A RGUED F EBRUARY 22, 2011—D ECIDED M ARCH 7, 2012
Before W ILLIAMS and T INDER, Circuit Judges, and
G OTTSCHALL, District Judge.
W ILLIAMS, Circuit Judge. The plaintiffs, Habitat Ed-
ucation Center, Inc., a citizens’ organization engaged
Of the United States District Court for the Northern District
of Illinois, sitting by designation.
2 Nos. 10-1322 & 10-1346
in forest, wildlife, and natural resource protection, two
of its officers, and the Environmental Law & Policy
Center successfully sued to enjoin a number of logging
projects planned for the Chequamegon-Nicolet National
Forest (the “Forest”). The district court later lifted its
injunction after finding that the defendants took the
appropriate corrective action to comply with the
National Environmental Policy Act (“NEPA”), 42 U.S.C.
§§ 4321 et seq.
The plaintiffs argue that the injunction should not
have been lifted because the United States Forest Service
failed to consider how a future project in the Forest’s
Fishel area might alter the cumulative impacts analysis
it presented in the draft environmental impact statements
for projects in the McCaslin and Northwest Howell
areas of the Forest. But we find that the Fishel project
was formally proposed after the Forest Service issued
those draft statements, and it is neither arbitrary nor
capricious for an agency to exclude from the cumulative
impacts analysis presented in its final statement those
projects that (1) only become capable of meaningful dis-
cussion after the agency has issued its draft statement,
and (2) do not significantly alter the environmental land-
scape presented in the draft. The plaintiffs also argue that
the Forest Service should have supplemented its state-
ments, but we do not find that the agency acted arbitrarily
by failing to do so. Finally, the plaintiffs insist that
the Forest Service should have strictly followed NEPA’s
procedures for indicating incompleteness. However,
we conclude that NEPA does not require an agency to
generate paperwork bearing no meaningful effect on the
substance of pending proposals. Accordingly, we affirm.
Nos. 10-1322 & 10-1346 3
I. BACKGROUND
The Forest covers more than 1.5 million acres in
northern Wisconsin, contains mostly northern hardwood,
mixed conifer, and aspen trees, and is home to more than
300 species of wildlife. It consists of two noncontiguous
tracts of land: the Chequamegon, which is located on
858,400 acres in northwest and north-central Wisconsin,
and the Nicolet, which occupies 661,400 acres in the
northeastern part of the state. Though noncontiguous,
the Chequamegon and the Nicolet have been managed
by the Forest Service as a single entity since 1993. Among
the many species cohabiting the Forest are the red-shoul-
dered hawk, the goshawk, and the American marten.
Each has been identified as “Regional Forester’s Sensi-
tive Species” and “Management Indicator Species.”
Those designations require emphasis in planning,
analysis of adverse effects on the population, habitat,
and viability of the species, and monitoring during
forest plan implementation.
In 2000, the Forest Service began planning a timber
harvesting project in the McCaslin area on the Nicolet
side of the Forest. In 2003, it issued a record of decision
(“ROD”) indicating that it would pursue a project in
the McCaslin area that consisted of 8,876 acres of
logging, three miles of road construction, and seven
miles of road reconstruction. That same year, the Forest
Service approved five other timber harvesting projects
for the Forest. Of relevance here, one of the approved
projects proposed 7,000 acres of logging, two miles of
road construction, and 24 miles of road reconstruction
in the Forest’s Northwest Howell area.
4 Nos. 10-1322 & 10-1346
The Forest Service contends that both the McCaslin
and the Northwest Howell projects are congruent with
the current management plan for the Forest, issued in
2004, which seeks to return the Forest to conditions that
more closely approximate a natural forest by increasing
structural diversity through “selective harvest[ing].” In
its opinion, removing certain trees will open up small
gaps in the forest canopy allowing sunlight to reach a
new generation of trees on the forest floor, reduce the
density of stands to permit the remaining trees to grow
more rapidly, and create a more complex forest struc-
ture that improves both the ecological and economic
value of the stands. And returning the Forest to condi-
tions that more closely approximate a natural forest
will improve the habitat and long-term viability of
a range of species living there.
The plaintiffs disagree. They insist that the McCaslin
and Northwest Howell projects (as well as other projects
proposed for the Forest) threaten the viability of the red-
shouldered hawk, the goshawk, and the American
marten by adversely affecting their natural habitats. To
prevent this from happening, the plaintiffs administra-
tively appealed the RODs issued for the McCaslin and
Northwest Howell projects, and tried to informally re-
solve their dispute with the Forest Service. Unsuccessful,
the plaintiffs initiated this action in the Eastern District
of Wisconsin, under the Administrative Procedures
Act (“APA”), 5 U.S.C. § 702, alleging violations of, among
other things, NEPA and the National Forest Manage-
ment Act (“NFMA”), 16 U.S.C. §§ 1600-1687. The
plaintiffs sought to enjoin the Forest Service, its Chief,
Nos. 10-1322 & 10-1346 5
and the Secretary of the United States Department of
Agriculture from effectuating the McCaslin and North-
west Howell projects.
In two separate suits, the plaintiffs alleged that the
Forest Service violated NEPA by: (1) failing to consider
the cumulative impacts on the environment of past,
present, and reasonably foreseeable future logging
projects; and (2) failing to consider sound, high-quality
scientific information indicating that the McCaslin and
Northwest Howell projects will harm the red-shouldered
hawk, goshawk, and American marten. The plaintiffs
also alleged that the Forest Service violated NFMA by:
(1) approving the two projects based on an outdated
1986 forest plan; (2) allowing greater road density in
the McCaslin area than the 1986 plan permitted; and
(3) failing to collect data indicating the effect of the
project on management indicator species. Finding the
cumulative impacts analysis for the two projects insuf-
ficient, the district court reversed the Forest Service’s
decision, remanded the case for reconsideration, and
enjoined implementation of the McCaslin and North-
west Howell projects until the Forest Service completed
an environmental impact statement (“EIS”) for each
that complied with NEPA. Habitat Educ. Ctr. v. Bosworth
(Howell I), 363 F. Supp. 2d 1090, 1098-99 (E.D. Wis. 2005);
Habitat Educ. Ctr. v. Bosworth (McCaslin I), 363 F. Supp. 2d
1070, 1078 (E.D. Wis. 2005). The court denied the plain-
tiffs’ motions in all other respects.
On remand, the Forest Service prepared a Supple-
mental Environmental Impact Statement (“SEIS”) for
6 Nos. 10-1322 & 10-1346
the McCaslin project and an SEIS for the Northwest
Howell project. It issued a draft SEIS for each
individual project in January 2006. Eight months later,
in September 2006, the Forest Service issued final state-
ments and re-approved both projects. The Forest
Service then filed motions in the district court to lift the
injunctions issued in McCaslin I and Howell I. The
district court, however, denied the motions because
it found that the Forest Service did not show that the
statements complied with NEPA. The parties later filed
cross-motions for summary judgment addressing the
adequacy of the statements under NEPA.
In their motion for summary judgment, the plaintiffs
argued that the statements did not comport with NEPA
because, among other things, they failed to discuss rea-
sonably foreseeable projects that were formally proposed
after the issuance of each draft SEIS and were scheduled
to occur on the Nicolet side of the Forest in the near
future. The plaintiffs highlighted the Fishel Vegetation
and Transportation Management Project that was pro-
posed on March 9, 2006, six months before the Forest
Service issued final statements for the McCaslin and
Northwest Howell projects. The Fishel proposal identi-
fied the project’s boundaries, stated its objective, and
identified the precise action to be undertaken. It also
estimated the number of acres that would be affected
by the project and the volume of timber that would
be made available for sale.
The district court determined that the Fishel project
was reasonably foreseeable, as contemplated under
Nos. 10-1322 & 10-1346 7
NEPA, at the time the Forest Service issued the final
statements for the McCaslin and Northwest Howell
projects. But the court granted the Forest Service’s
motion to lift the injunction “because the draft [state-
ments were] issued in January 2006, two months before
the Fishel project was formally proposed.” Habitat Educ.
Ctr. v. U.S. Forest Serv. (McCaslin II), 680 F. Supp. 2d 1007,
1018 (E.D. Wis. 2010) (emphasis in original); accord
Habitat Educ. Ctr. v. U.S. Forest Serv. (Howell II), 680
F. Supp. 2d 996, 1004 (E.D. Wis. 2010). The court found
that the Forest Service could not have meaningfully
discussed the Fishel project in either the McCaslin or
the Northwest Howell draft SEIS. And because the ad-
ministrative record did not indicate that the anticipated
effects of the Fishel project would seriously change
the environmental landscape presented in the draft
statements, the district court concluded that the Forest
Service was not required to further supplement the
McCaslin and Northwest Howell projects’ respective
statements. McCaslin II, 680 F. Supp. 2d at 1019; Howell II,
680 F. Supp. 2d at 1005. The court granted summary
judgment to the defendants and lifted the injunctions.
The plaintiffs appealed both cases, which we have con-
solidated.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo. Habitat Educ. Ctr. v. U.S. Forest Serv.
(Twentymile), 609 F.3d 897, 900 (7th Cir. 2010). An agency
decision that allegedly violates NEPA may be set aside
8 Nos. 10-1322 & 10-1346
under the APA only if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). When the issue pre-
sented is whether an agency has failed to prepare a satis-
factory EIS, the court’s role is to ensure that the
agency “has taken a ‘hard look’ at environmental conse-
quences.” Twentymile, 609 F.3d at 900 (quoting Kleppe v.
Sierra Club, 427 U.S. 390, 410 n.21 (1976)) (first internal
quotation marks omitted). Our review, while deferential,
must be “searching and careful” and may not condone
a “clear error of judgment.” Marsh v. Or. Natural Res.
Council, 490 U.S. 360, 378 (1989) (internal citation and
quotation marks omitted).
When a federal agency, like the Forest Service, elects to
pursue any major action that might significantly affect
the environment, it must comply with the procedures set
forth in NEPA. That statute commands agencies to
prepare an EIS unless the action under consideration
is categorically excluded or an “environmental
assessment”1 shows that no EIS is needed. 40 C.F.R.
§ 1501.4. An EIS is “a detailed analysis and study con-
ducted to determine if, or the extent to which, a particular
agency action will impact the environment.” Highway J
Citizens Grp. v. Mineta, 349 F.3d 938, 953 (7th Cir. 2003)
(citation and internal quotation marks omitted). If the
1
An environmental assessment is a “concise public docu-
ment . . . that . . . [b]riefly provide[s] sufficient evidence and
analysis for determining whether to prepare an environ-
mental impact statement or a finding of no significant impact.”
40 C.F.R. § 1508.9.
Nos. 10-1322 & 10-1346 9
agency does not prepare an EIS, it must prepare and make
publicly available a “finding of no significant impact.”
40 C.F.R. § 1501.4(e).
To begin the process of preparing an EIS, an agency
must publish a notice of intent in the Federal Register.
40 C.F.R. § 1501.7. The agency will then undertake
what is generally known as the “scoping process,” to
determine the scope of the issues to be addressed in the
EIS. Id. After deciding on the scope, the agency conducts
the environmental study and prepares a draft EIS. The
draft must then be made publicly available, and the
agency must obtain or request comments on the draft
from other federal agencies, state and local agencies
authorized to enforce environmental standards, affected
Indian tribes, and interested or affected organizations
or members of the public. 40 C.F.R. § 1503.1. The agency
will then consider the comments, and respond to any
issue that the draft does not adequately discuss in a
published “final” EIS. If at any point the agency makes
“substantial changes” in the proposed action, or there are
“significant new circumstances or information” relevant
to environmental concerns, the statute requires the agency
to prepare supplements to either the draft or final EIS
to account for the change or new information. 40 C.F.R.
§ 1502.9(c)(1)(i), (ii). After completing these steps, the
agency issues a ROD explaining its final decision and the
reasons for its choice among the alternatives considered.
As part of the EIS preparation process, NEPA requires
agencies to analyze the cumulative impacts of past, pres-
ent, and reasonably foreseeable projects on the environ-
10 Nos. 10-1322 & 10-1346
ment. 40 C.F.R. § 1508.25(a)(2). Cumulative impacts
may result from “individually minor but collectively
significant actions taking place over a period of time.” Id.
§ 1508.7. In determining whether a project will have a
“significant” impact on the environment, an agency
must consider “[w]hether the action is related to other
actions with individually insignificant but cumulatively
significant impacts.” Id. § 1508.27(b)(7). This ensures
that a federal agency will not act on incomplete infor-
mation, only to regret its decision after it is too late
to correct. Marsh, 490 U.S. at 371 (citation omitted).
On appeal, the plaintiffs attack three aspects of the
process that the Forest Service undertook in preparing
environmental impact statements for the McCaslin and
Northwest Howell projects. First, they argue that the
Forest Service failed to consider the Fishel project in
its cumulative impacts analysis for the McCaslin and
Northwest Howell projects. Next, they contend that
even if the Fishel project was not reasonably foreseeable
when the McCaslin and Northwest Howell draft state-
ments were issued, the Forest Service failed to sup-
plement those statements as required by NEPA.
Finally, the plaintiffs insist that, at the very least, the
Forest Service should have strictly complied with
NEPA’s procedure for indicating that its analysis of
the McCaslin and Northwest Howell projects was incom-
plete. We address each issue in turn.
Nos. 10-1322 & 10-1346 11
A. The Forest Service’s Exclusion of Fishel from Its
Cumulative Impacts Analysis Was Not Arbitrary,
Capricious, or Contrary to Law.
The issue raised by the plaintiffs’ first contention is
whether the Forest Service should have included the
Fishel project in the cumulative impacts analysis
presented in the final statements even though the Fishel
project could not be meaningfully discussed until after
the McCaslin and Northwest Howell draft statements
were issued. In considering this question, we remain
cognizant of the need to avoid interpreting NEPA in
a way that would “paralyze agencies by preventing
them from acting until inchoate future projects take
shape (by which time, presumably, new inchoate projects
would loom on the horizon).” Twentymile, 609 F.3d at
903. Instead, we should, to the fullest extent possible,
interpret NEPA and its regulations strictly in accord with
the twin goals of the statute: ensuring “that the agency . . .
will have available, and will carefully consider, detailed
information concerning significant environmental im-
pacts,” and guaranteeing that “the relevant information
will be made available to the larger audience that may
also play a role in both the decisionmaking process and
the implementation of that decision.” Dep’t of Transp. v.
Pub. Citizen, 541 U.S. 752, 768 (2004) (citation omitted).
NEPA does not require agencies “to elevate environmental
concerns over other appropriate considerations”; rather, it
demands only “that the agency take a ‘hard look’ at the
environmental consequences before taking a major
action.” Baltimore Gas & Elec. Co. v. Nat’l Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983) (citation omitted). The statute
“does not mandate particular results”; it “simply pre-
12 Nos. 10-1322 & 10-1346
scribes the necessary process.” Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989).
The Council on Environmental Quality (“CEQ”), estab-
lished by NEPA, has promulgated regulations that set
forth with specificity the process by which an EIS must
be prepared. 40 C.F.R. § 1502.9(a)-(c). We give
“substantial deference” to those regulations when in-
terpreting NEPA. Marsh, 490 U.S. at 372; Ctr. for Biological
Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1166 (9th
Cir. 2003). The regulations require that an EIS “be
prepared in two stages”: a draft EIS, and a final EIS. 40
C.F.R. § 1502.9(a), (b). The former “must fulfill and
satisfy to the fullest extent possible the requirements
established for final statements.” Id. § 1502.9(a). The
latter “shall respond to comments as required . . . [and
discuss] any responsible opposing view which was not
adequately discussed in the draft statement.” Id.
§ 1502.9(b). This regulatory scheme front-loads the
EIS’s analytic process, and contemplates publication of
a final EIS that addresses issues raised about the draft.
E.g., Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1183
(9th Cir. 2011) (“In sum, the SEIS dedicates over 120
pages to raising and meaningfully responding to
public critiques. That is all NEPA requires.”); cf. Dubois
v. U.S. Dep’t of Agric., 102 F.3d 1273, 1288 (1st Cir.
1996) (“Instead of ‘rigorously explor[ing]’ the alternative
of using artificial water storage units instead of Loon
Pond, the Forest Service’s Final EIS did not respond to
these comments at all . . . . This failure violated the
Forest Service’s EIS obligation under NEPA.” (alteration
in original)).
Nos. 10-1322 & 10-1346 13
The district court concluded that because most of
the heavy lifting involved in the environmental impact
analysis must occur before the draft EIS is com-
pleted, the Forest Service may exclude from its final
EIS’s cumulative impacts analysis any project that cannot
be meaningfully discussed at the time the draft EIS is
issued. That holding is consistent with the position taken
by the D.C. Circuit on a related question. Cf. Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 513
(D.C. Cir. 2010) (holding that it is not “arbitrary and
capricious for the [agency] to om it from its
cumulative impact analysis other projects for which
nothing had been completed except notices of intent,
each published after the . . . draft EIS had been re-
leased.”). We agree with the district court and find our
sister circuit’s decision instructive. We therefore hold
that a federal agency does not act arbitrarily or ca-
priciously by excluding from its final EIS those projects
that cannot be meaningfully discussed at the time the
agency issues its draft EIS and do not significantly alter
the environmental landscape as presented in that draft.
Strictly construed, NEPA and the CEQ regulations
permit an agency to issue a final EIS that does no more
than incorporate a previously issued draft EIS and re-
spond to comments received regarding that draft (assum-
ing, of course, that the draft complies with NEPA). That
seems to be what occurred here. The Forest Service ex-
cluded the Fishel project from its final statements because
the Fishel project was not capable of meaningful discussion
at the time the McCaslin and Northwest Howell draft
statements were issued, and the Fishel project did not
14 Nos. 10-1322 & 10-1346
alter the environmental landscape presented in the
draft (an issue we discuss more fully below). We
cannot say that the Forest Service’s decision was
arbitrary, capricious, or contrary to law. To hold other-
wise would paralyze federal agencies by transforming
the two-stage EIS preparation process into an endless
loop of creating and recreating draft statements. NEPA
does not require federal agencies to do the impractical.
Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88
F.3d 754, 764 (9th Cir. 1996). And logic dictates that
at some point an agency must be allowed to move
beyond the draft EIS. In our view, unless newly dis-
covered information requires supplementation, that
point is reached when the draft is issued. It was there-
fore not a “clear error of judgment” for the Forest Service
to reach the same conclusion.
B. The Forest Service’s Decision Not to Supplement
Also Was Not Arbitrary, Capricious, or Contrary to
Law.
Where a future project is not reasonably foreseeable
at the time an agency issues a draft EIS for a current
project, we cannot say that the agency’s decision to
exclude the future project from the cumulative impacts
analysis it presents in its final EIS is arbitrary, capri-
cious, or otherwise contrary to law. But, importantly, this
does not mean that the agency is free to ignore any
new information that comes to light in the interval
between the draft and final EIS. Instead, the agency
must take a hard look at the new information and deter-
Nos. 10-1322 & 10-1346 15
mine if supplementation is necessary. Our inquiry into
the propriety of supplementation is a separate one. We
therefore turn to the appellants’ argument that the
Forest Service should have further supplemented the
McCaslin and Northwest Howell statements.
An agency’s decision whether to supplement an EIS
is subject to the “rule of reason,” and we review that
decision under the APA’s “arbitrary and capricious”
standard. Marsh, 490 U.S. at 376. We take care
to distinguish between claimed deficiencies in an EIS
that are “merely flyspecks” and those that are “sig-
nificant enough to defeat the goals of informed
decisionmaking and informed public comment.” Utahns
for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152,
1163 (10th Cir. 2002) (citation omitted).
The CEQ regulations impose a duty on all federal
agencies to supplement either a draft or a final EIS if
there “are significant new circumstances or information
relevant to environmental concerns and bearing on the
proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii).
Supplementation is not required every time new infor-
mation comes to light—otherwise, agency decisionmaking
would be rendered “intractable, always awaiting
updated information only to find the new information
[is] outdated by the time a decision is made.” Marsh, 490
U.S. at 373. But NEPA does require an agency to take
a “hard look” at the environmental impacts of its
planned action, even after a proposal has received
initial approval. Id. at 374.
16 Nos. 10-1322 & 10-1346
The question before us, whether the Forest Service
should have published additional supplements to the
McCaslin and Northwest Howell statements, is a “classic
example of a factual dispute the resolution of which
implicates substantial agency expertise,” Id. at 376,
because “ ‘the determination of the extent and effect of
[cumulative impact] factors . . . is a task assigned to the
special competency of the appropriate agencies.’ ” Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d
1208, 1215 (9th Cir. 1998) (brackets in original) (quoting
Kleppe, 427 U.S. at 414). Moreover, the agency need only
supplement an environmental impact statement if the
new circumstance or information is “significant,” 40
C.F.R. § 1508.27(b)(7), and determining significance is “a
factual question requiring technical expertise.” Town of
Winthrop v. F.A.A., 535 F.3d 1, 8 (1st Cir. 2008) (citation
omitted).
The Forest Service’s cumulative impacts analysis for
McCaslin and Northwest Howell is not alleged to
contain any deficiencies other than its failure to
consider the Fishel project. A cumulative impact on the
environment “results from the incremental impact of the
action when added to other past, present, and rea-
sonably foreseeable future actions.” 40 C.F.R. § 1508.7. By
nature of that definition, the cumulative impacts of
McCaslin, Northwest Howell, and Fishel together will
be considered at some point before each of the three
projects are undertaken. Indeed, “present” projects
(McCaslin and Northwest Howell), if adopted and im-
plemented, will become “past” projects with which any
future project (Fishel) must be cumulatively considered
Nos. 10-1322 & 10-1346 17
before that future project may be implemented without
running afoul of NEPA. Where, as here, future action is
too inchoate to be meaningfully discussed at the time
the agency issues a draft EIS for two current projects,
the environment remains protected against the cumula-
tive impacts of all three projects together because the
future action must eventually be analyzed as a “present”
action, taking into account the other two, now “past,”
projects. More importantly, if new information about a
future project becomes clear while the current projects
are pending, and that information significantly alters
the previously presented environmental landscape, the
agency would be required to issue a supplement to its
draft or, if issued, final EIS. See 40 C.F.R. § 1502.9(c)(1)
(explaining that agencies “[s]hall prepare supple-
ments to either draft or final environmental impact state-
ments” (emphasis added)).
The issue of supplementation was front and center
in Marsh. The plaintiffs in that case argued that the de-
fendant, U.S. Army Corps of Engineers, should have
supplemented the final EIS issued for construction of
a portion of the three-dam project because new informa-
tion emerged, which allegedly undermined the Corps’
environmental impact analysis. Marsh, 490 U.S. at 369.
The plaintiffs relied on two documents to support their
contention: an internal memorandum prepared by two
Oregon Department of Fish and Wildlife biologists,
which suggested the dam would adversely affect down-
stream fishing, and a soil survey prepared by the United
States Soil Conservation Service, which the plaintiffs
claimed indicated greater downstream turbidity than
18 Nos. 10-1322 & 10-1346
did the final EIS. Id. Rejecting the plaintiffs’ claims, the
Court held that “the Corps had a duty to take a hard
look at the proffered evidence. However, having
done so and having determined based on careful
scientific analysis that the new information was of exag-
gerated importance, the Corps acted within the dic-
tates of NEPA in concluding that supplementation
was unnecessary.” Id. at 385.
Marsh is instructive. In contrast to that case, however,
the plaintiffs here have not identified any evidence to
support their claim that the Fishel project significantly
altered the environmental landscape presented in
the McCaslin and Northwest Howell final statements.
But even accepting the Fishel project’s significance, it
was neither arbitrary nor capricious for the Forest
Service to refrain from further supplementing its final
statements. The Forest Service need only take a “hard
look” at the concerns raised by the plaintiffs. It effectively
did so in two ways. First, it included in its cumulative
impacts analysis for McCaslin and Northwest Howell
an assumption that all future projects, including Fishel,
“must be consistent with the protective requirements
for [Regional Foresters’ Sensitive Species] of the 2004
Forest Plan,” and that such projects “will not occur if
their additive effects are unacceptable.” Second, it made
clear that the cumulative impacts of all three projects
would be addressed in the Fishel project’s EIS. The
Forest Service, in fact, made good on that promise by
including that very analysis in the EIS issued for Fishel.
And nothing in the record undermines the validity of
the Forest Service’s stated analytic assumption. Therefore,
Nos. 10-1322 & 10-1346 19
we are satisfied that the Forest Service made a “reasoned
decision based on its evaluation of the [Fishel project’s]
significance” that the project did not significantly alter
the environmental landscape, and that the cumulative
impact of the Fishel, McCaslin, and Northwest Howell
projects together would be adequately addressed in the
not-too-distant future. See id. at 377-78 (“Because analysis
of the relevant documents requires a high level of
technical expertise, we must defer to the informed dis-
cretion of the responsible federal agencies.” (citations
and internal quotation marks omitted)). There may be
cases in which an agency faced with newly discovered
information evidencing a significant change in the en-
vironmental landscape must supplement an EIS to
comply with NEPA, e.g., Seattle Audubon Soc’y v. Espy,
998 F.2d 699, 703-04 (9th Cir. 1993) (affirming injunction
because agency did not consider intervening U.S. Fish
and Wildlife Service report that “ ‘raise[d] serious ques-
tions’ ” about the agency’s analysis), but this is not one of
them. See Wis. v. Weinberger, 745 F.2d 412, 420 (7th Cir.
1984) (“An original EIS is no longer ‘adequate as a source
of information necessary to a rational decision on the
relative risks and benefits’ of a proposed action not because
it fails to ‘include’ new information or any ‘evaluation’ of
it, but because the new information presents a seriously
different picture of the likely environmental harms stem-
ming from the proposed action.” (emphasis omitted)).
Our dissenting colleague would find that the Forest
Service’s explanation that the Fishel Project must comport
with the Forest Plan and have acceptable additive effects
20 Nos. 10-1322 & 10-1346
on the environment does not provide sufficient evidence
of a “hard look” at the information revealed by Fishel’s
scoping notice. The objection raised is reasonable, but
contrary to the deference we owe to federal agencies
on this question. And the cases cited by the dissent illus-
trate this point.
In Natural Res. Def. Council, Inc. v. F.A.A., 564 F.3d
549, 562 (2d Cir. 2009), the petitioners insisted
that the FAA should have supplemented because it
“did not consider the effects of secondary development
in areas” outside of the identified 75,000-acre West Bay
Sector Plan. The Second Circuit rejected the petitioners’
argument, however, because among other things the
plan “already takes into account many of the secondary
effects about which petitioners express concern. To the
extent that new roads and dwellings may adversely
affect the woodpecker in areas beyond the West Bay
Sector Plan, such construction may itself become the
object of an appropriate study” under NEPA. Id.;
see also Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp.,
42 F.3d 517, 529-30 (9th Cir. 1994) (“Fires are natural oc-
currences in the Laguna Greenbelt area. The EIS takes
the occurrence of fire into account and existing mitiga-
tion measures in the EIS consider the possibility of fire.”).
As the dissent notes, Hughes River Watershed Conservancy
v. Glickman, 81 F.3d 437, 445 (4th Cir. 1996) is a case
where the reviewing court held that an agency acted
arbitrarily by not supplementing its EIS in light of new
information. But that case was decided on a substan-
tially different record than what we have here. In Hughes,
Nos. 10-1322 & 10-1346 21
the agency failed to consider evidence from six experts
showing that, contrary to the agency’s prediction, the
area in question “would not become heavily infested
[with zebra mussel] without the Project.” Id. The
Fourth Circuit found the agency’s review of this new
information wanting because “a District Office biologist
simply made two telephone calls to the Corps’s water
quality section and elicited the opinions from
two individuals that all the district’s reservoirs would
eventually become infested and . . . could possibly become
infested from fish bait buckets.” Id. According to the
Fourth Circuit, the “only glimmer of reasoning” provided
by the agency was the “notation” that current fishing
would possibly lead to infestation from fish bait
buckets, and “the only information regarding the quali-
fications of the person who supplied this reasoning
is that he was an employee of the Corps’s water
quality section.” Id.
The important distinction in this case is that the record
is devoid of any new scientific evidence that might have
caused the Forest Service to reassess the assumptions
underlying its previous cumulative impacts analysis.
More importantly, the determination to be made about
the weight of such new evidence is one particularly
suited for the agency’s discretion and expertise, not this
court’s. See, e.g., Winthrop, 535 F.3d at 11 (“[I]t was not
arbitrary and capricious for the FAA to conclude that
it had enough data to make a reasoned decision. There
will always be more data that could be gathered;
agencies must have some discretion to decide when to
draw the line and move forward with decisionmaking.”).
22 Nos. 10-1322 & 10-1346
The particular facts of this case favor deference to the
agency. Unlike Hughes, this case does not involve dis-
closure of new information about how a project might
harm a previously overlooked species; rather, it involves
a revelation of additional information about a future
project for which the agency had already made assump-
tions and incorporated those assumptions into its analy-
sis. On this record, we think the Forest Service’s failure to
supplement was neither arbitrary nor capricious. See
Marsh, 490 U.S. at 385. (“Even if another decisionmaker
might have reached a contrary result, it was surely not
‘a clear error of judgment’ for the Corps to have found
that the new and accurate information contained in the
documents was not significant and that the significant
information was not new and accurate.”).
C. The Forest Service Made Clear that It Lacked Infor-
mation to Meaningfully Discuss Fishel.
The plaintiffs’ final contention is that the Forest Service
violated NEPA by not strictly complying with 40 C.F.R.
§ 1502.22, which mandates that an agency indicate its
analysis is incomplete if such is the case. The Forest Ser-
vice’s compliance with § 1502.22 is subject to the “rule of
reason.” See 40 C.F.R. § 1502.22(b)(4) (“[A]nalysis of the
impacts . . . is within the rule of reason.”).
Importantly, the regulations demand that federal agen-
cies “make clear that . . . information is lacking” when
“evaluating reasonably foreseeable significant adverse
effects on the human environment” and such evaluation
is not complete. Id. The plaintiffs argue that agencies
Nos. 10-1322 & 10-1346 23
must do more; they demand that the Forest Service
strictly follow the specific procedures outlined in sub-
sections (b)(1) through (4) of 40 C.F.R. § 1502.22. Those
subsections direct an agency to issue a statement that
(1) identifies its information as incomplete; (2) clarifies
the missing information’s relevance to its evaluation of
the environmental impacts; (3) summarizes relevant
scientific evidence; and (4) evaluates the environmental
impacts using generally accepted “theoretical ap-
proaches or research methods.” Id. § 1502.22(b)(1)-(4).
But they apply only “[i]f the information relevant to
reasonably foreseeable significant adverse impacts can-
not be obtained because the overall costs of obtaining it
are exorbitant or the means to obtain it are not known.”
Id. § 1502.22(b). The Forest Service has never taken the
position that its cumulative impacts analysis did not
include the Fishel project because of exorbitant costs.
Nor has it maintained that the means to obtain a cumula-
tive analysis of all three projects were “not known.”
Instead, the Forest Service has consistently contended
that the Fishel project was not reasonably foreseeable
at the time it issued the draft supplemental statements
for McCaslin and Northwest Howell, and the cumulative
analysis for all three projects would be presented in
the Fishel EIS. Under these circumstances, an agency
need only have made clear that information was lacking
to comply with the regulations. The Forest Service did
just that.
In its draft supplemental statements for McCaslin and
Northwest Howell, the Forest Service stated that although
the Fishel Project was likely to be proposed soon, the
24 Nos. 10-1322 & 10-1346
agency did not have sufficient information to discuss
its impacts at the time. The Forest Service also explained
that the cumulative impacts of all three projects would
be considered and discussed in the EIS the agency in-
tended to issue for the Fishel project.2 The regulations do
not prescribe the precise manner through which an agency
must make clear that information is lacking. The manner
by which Forest Service elected to convey its lack of
information was not a clear error of judgment or otherwise
contrary to law. See Colo. Envtl. Coal. v. Dombeck, 185 F.3d
1162, 1172-73 (10th Cir. 1999) (“[W]e are unwilling to give
a hyper-technical reading of the regulations to require the
Forest Service to include a separate, formal disclosure
statement in the environmental impact statement to
the effect that lynx population data is incomplete or
unavailable. Congress did not enact the National En-
vironmental Policy Act to generate paperwork or impose
2
The supplemental statements stated specifically that “there
are two proposals that will be put out for the initial public
scoping in the near future, the Fishel project and the Spruce
Decline II project. Neither proposal was sufficiently detailed
for use at the time the cumulative effects analysis was com-
pleted for the Northwest Howell or McCaslin SEIS analysis.
These projects were in the very early stages of development
and there wasn’t a specific proposal to do detailed quantitative
analysis. However, Fishel and Spruce Decline II will be con-
sistent with the 2004 Forest Plan. In addition, when the en-
vironmental analysis is done for these new projects, they
will look at current projects (such as McCaslin and North-
west Howell) as part of their disclosure of cumulative impacts.”
Nos. 10-1322 & 10-1346 25
rigid documentary specifications.”). While it might be
better for an agency to always follow the § 1502.22(b)
procedures when it lacks information relevant to its
cumulative impacts analysis, we cannot substitute our
own judgment for that of the agency. And we should
not impose an “empty technicality—a requirement that
agencies explicitly state that they lack knowledge about
the details of potential future projects.” Twentymile, 609
F.3d at 902-03. Given our deferential review, the
Forest Service’s statement of incompleteness was suf-
ficient. See 40 C.F.R. § 1500.3 (“[A]ny trivial violation
of these regulations [does] not give rise to any
independent cause of action.”).
NEPA “is our basic national charter for protection of
the environment.” 40 C.F.R. § 1500.1(a). The statute em-
phasizes the importance of coherent and comprehensive
up-front environmental analysis to ensure informed
decisionmaking and prevent an agency from “act[ing] on
incomplete information, only to regret its decision after
it is too late to correct.” Marsh, 490 U.S. at 371. NEPA’s
purpose, however, “is not to generate paperwork—even
excellent paperwork—but to foster excellent action.” 40
C.F.R. § 1500.1(c). Because the Forest Service could not
meaningfully discuss the Fishel project when the draft
statements for the McCaslin and Northwest Howell
projects were issued, analysis of the cumulative impacts
of all three projects likely would be, and indeed was,
discussed in the Fishel project’s EIS, and nothing in
the record suggests that the Fishel project significantly
altered the environmental landscape presented in
26 Nos. 10-1322 & 10-1346
those draft statements, the plaintiffs’ plea amounts to a
request that the agency generate more paperwork to
further (and somewhat retroactively) justify actions that
it proposed, analyzed, and adopted in substantial com-
pliance with NEPA. The statute, however, is intended to
foster excellent and environmentally conscious action,
not prevent it. We believe that our holding aligns with
the essential purpose of NEPA.
III. CONCLUSION
For the reasons stated above, the district court’s
decision to grant summary judgment to the defendants
and lift the injunctions is A FFIRMED.
G OTTSCHALL, District Judge, dissenting in part. I agree
in large part with the majority, and as a result I gladly
join the opinion as to Parts II.A and II.C, as well as much
of Part II.B. When the draft supplemental environ-
mental impact statements (“SEISs”) for McCaslin and
Northwest Howell were issued, the Fishel project was too
indefinite to be meaningfully discussed; therefore, the
Forest Service properly excluded the Fishel project from
McCaslin’s and Northwest Howell’s cumulative impacts
analyses. I agree that when new information about a
Nos. 10-1322 & 10-1346 27
future project becomes clear only after a draft EIS for
a current project has already been issued, the agency is
not required to amend the draft EIS’s cumulative
impacts analysis to take account of the new information.
(Maj. Op. at 13-14.) As the majority states, once the draft
EIS has been issued and new information comes to
light, the agency is required to “take a hard look at the new
information,” apply a rule of reason, and make a decision
whether to supplement.3 (Maj. Op. at 14-15.) The agency
must supplement when the new information “signifi-
cantly alters the previously presented environmental
landscape,” (Maj. Op. at 17 (citing 40 C.F.R. § 1502.9(c)(1))),
and pursuant to Marsh v. Oregon Natural Resources
Council, 490 U.S. 360 (1989), the determination of whether
new information “significantly alters the previously
presented environmental landscape” is at first instance
a decision of the agency—a decision to which this
court owes considerable deference. Thus, I agree with
3
The Appellants indicate that the agency could choose to
amend the cumulative impacts analysis in the draft EISs
rather than prepare a supplement. (See Reply Br. at 14
(“Whether the Fishel project was incorporated into the cumula-
tive impacts analysis in the Final EISs or whether the agency
should have prepared a full-blown supplement to those EISs
is not the question here. In this case, because the Forest
Service failed to either include the Fishel timber sale project
in the Final EISs’ cumulative impacts analysis or prepare a
supplement, the Forest Service violated NEPA.”).) I do not
intend to suggest that an amendment of the cumulative
impacts analyses would be insufficient.
28 Nos. 10-1322 & 10-1346
Marsh and the majority that once it has taken the
required hard look, the agency’s decision not to
prepare a supplement should not be set aside unless
it is “arbitrary and capricious.” Id. at 374-75.
Unlike the majority, however, I cannot find any
evidence in this record that the Forest Service took the
hard look which the law requires. Because nothing in
the record justifies the Forest Service’s decision not to
supplement the McCaslin and Northwest Howell SEISs
to take account of Fishel, I find the agency’s failure to
supplement arbitrary and capricious, and I disagree
with Part II.B. of the majority opinion. For this reason,
I cannot join in the majority’s decision to affirm the
district court’s grant of summary judgment to the Appel-
lees in this case.
On March 9, 2006—after the draft SEISs for McCaslin
and Northwest Howell were issued in January 2006, but
before they were issued in final form in September
2006—the Forest Service issued a scoping notice for the
Fishel project, which Judge Adelman described as a
“formal proposal.” 4 In this proposal, Judge Adelman
4
Although Judge Adelman refers to the Forest Service’s notice
of March 9, 2006 as a “formal proposal,” the parties have
described this March 9, 2006 notice as a “scoping notice.” (See
Separate App. of Appellants at 3.) NEPA regulations contem-
plate a notice of intent, 40 C.F.R. § 1508.22; followed by a
proposal, id. § 1508.23; followed by a scoping notice, id.
§ 1508.25; followed by the draft and final environmental
(continued...)
Nos. 10-1322 & 10-1346 29
found, “the Forest Service identified the project’s bound-
aries, stated the project’s objectives, and identified the
precise action it proposed to take.” Habitat Educ. Ctr. v.
U.S. Forest Serv., 680 F. Supp. 2d 1007, 1018 (E.D. Wis.
2010). The Forest Service had also “estimated the number
of acres that would be affected by the project and the
volume of timber that would be made available for sale.”
Id. For these reasons, Judge Adelman explicitly found
that “the Fishel project was a reasonably foreseeable
future action that could have been meaningfully dis-
cussed.” Id. The Forest Service has not taken issue with
Judge Adelman’s finding that the Fishel project became
“reasonably foreseeable” at this point, although it equivo-
cates on the issue of whether the project could have
been meaningfully discussed. It admits, however, that
Fishel “was no longer entirely speculative.” (Br. for
the Appellees at 42-43.) Appellants argue that once the
Fishel project became reasonably foreseeable, the
Forest Service should have prepared supplements
to the McCaslin and Northwest Howell SEISs to
analyze the cumulative impacts of McCaslin and North-
west Howell, as affected by the upcoming Fishel project.
The majority concludes that the Forest Service satisfied
its obligation to take a hard look at the impact of Fishel on
4
(...continued)
impact statements. Id. § 1502.9(a) (noting that draft EISs
“shall be prepared in accordance with the scope decided upon
in the scoping process”); § 1502.9(b) (noting that the final
EIS “shall respond to comments” on the draft). The majority
assumes, as do I, that this formal proposal constituted new
information sufficient to trigger the hard look requirement.
30 Nos. 10-1322 & 10-1346
McCaslin and Northwest Howell in two ways. First,
the Forest Service “included in its cumulative impacts
analysis for McCaslin and Northwest Howell an assump-
tion that all future projects, including Fishel, ‘must be
consistent with the protective requirements for [Regional
Foresters’ Sensitive Species] of the 2004 Forest Plan,’ and
that such projects ‘will not occur if their additive effects
are unacceptable.’ ” (Maj. Op. at 18 (quoting Appellees’
Supp. App. at 34).) Second, the Forest Service “made
clear that the cumulative impacts of all three projects
would be addressed in the Fishel project’s EIS.” (Id.)
With respect to the first, the Forest Service is merely
stating that (a) it intends to comply with its Forest Plan,
and (b) it will not approve future projects like Fishel if
the additive effects of Fishel, McCaslin and Northwest
Howell are “unacceptable.” This is nothing but a state-
ment that the Forest Service intends to follow the require-
ment that it protect the Regional Foresters’ Sensitive
Species outlined in the 2004 Forest Plan, which it is legally
required to do. See 16 U.S.C. § 1604(i) (“Resource plans
and permits, contracts, and other instruments for the
use and occupancy of National Forest System lands shall
be consistent with the land management plans.”); 36
C.F.R. § 219.10 (“All site-specific decisions, including
authorized uses of land, must be consistent with the
applicable plan.”); Friends of Southeast’s Future v. Morrison,
153 F.3d 1059, 1068 n.4 (9th Cir. 1998) (“Here, 16 U.S.C.
§ 1604(i) plainly imposes a legal obligation on the
Forest Service to ensure that timber sales are consistent
with the relevant Forest Plan.”). With respect to the
second—that the cumulative impacts of all three projects
Nos. 10-1322 & 10-1346 31
would eventually be addressed in the Fishel project’s
EIS—the idea that consideration of any significant in-
formation can be deferred to a future project’s EIS is
inconsistent with the design of NEPA. In the words of
the Ninth Circuit, “NEPA is not designed to postpone
the analysis of an environmental consequence to the last
possible moment. Rather, it is designed to require such
analysis as soon as it can reasonably be done.” Kern v.
U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1072 (9th Cir.
2002). The regulations clearly state that an appropriate
analysis of cumulative impacts requires that “the incre-
mental impact of the [present] action” be “added to
the past, present, and reasonably foreseeable future
actions.” 40 C.F.R. § 1508.7. The law is clear that defer-
ring a cumulative impacts analysis until a future EIS
for another project is impermissible unless the agency
has properly decided that deferral is scientifically justifi-
able.
The agency’s obligations in considering whether to
prepare a supplement, and the court’s standard of
review of the agency’s decision, were articulated clearly
in Marsh. Marsh held that an agency’s decision not to
supplement “is a classic example of a factual dispute
the resolution of which implicates substantial agency
expertise,” 490 U.S. at 376, and courts “must defer to
‘the informed discretion of the responsible federal agen-
cies.’ ” Id. at 377 (quoting Kleppe v. Sierra Club, 427 U.S.
390, 412 (1976)). The agency has a responsibility with
respect to any new information, however, and that re-
sponsibility is to take a hard look at it, “regardless of its
eventual assessment of the significance of [the] informa-
32 Nos. 10-1322 & 10-1346
tion.” Id. at 385. If major federal action remains to occur,5
and the new information shows that the remaining action
will affect the quality of the human environment in a
significant manner or to a significant extent not already
considered, a supplemental EIS is required. Id. If, after
taking a hard look, the agency determines that the new
information does not affect the quality of the human
environment in a significant manner or to a significant
extent not already considered, the agency is not
required to prepare a supplement, and its decision not
to do so will be upheld unless arbitrary and capricious.
See id. at 377.
In making the determination of whether the agency’s
decision not to supplement was arbitrary and capricious,
“the reviewing court ‘must consider whether the
decision was based on a consideration of the relevant
factors and whether there has been a clear error of judg-
ment.’ ” Id. at 378 (quoting Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). While the
agency has considerable discretion in determining on
what information to rely, “courts should not auto-
matically defer to the agency’s express reliance on an
interest in finality without carefully reviewing the
record and satisfying themselves that the agency has
made a reasoned decision based on its evaluation of the
significance—or lack of significance—of the new infor-
mation.” Id.
5
The parties have not disputed that major federal action
remained to occur with respect to the Fishel, McCaslin and
Northwest Howell projects.
Nos. 10-1322 & 10-1346 33
There is no indication in this record that the agency
considered any relevant factors at all or made any
reasoned decision based on its evaluation of the new
information set forth in the Fishel “formal proposal”: the
agency simply committed to follow its Forest Plan in the
future and deferred consideration of the cumulative
impacts of McCaslin, Northwest Howell, and Fishel to
the Fishel EIS. Finding such statements sufficient to
satisfy the agency’s hard look obligation is inconsistent
with Marsh (where deference was found to be appro-
priate because the decision whether to supplement is
based on “substantial agency expertise”), 490 U.S. at 376,
and the decisions of numerous courts of appeals. See, e.g.,
Natural Res. Def. Council, Inc. v. F.A.A., 564 F.3d 549, 561-62
(2d Cir. 2009) (upholding an agency’s decision not to
supplement because it had taken a hard look at new
circumstances and analyzed scientific information
relating to the ivory-billed woodpecker); Town of Winthrop
v. F.A.A., 535 F.3d 1, 13 (1st Cir. 2008) (upholding an
agency’s decision not to supplement where the agency
“ha[d] not ignored [certain environmental] concerns” and
“decided to evaluate the issue fully . . . alongside agencies
with relevant expertise”); Hughes River Watershed Conser-
vancy v. Glickman, 81 F.3d 437, 445 (4th Cir. 1996) (con-
cluding that an agency had not taken enough of a hard
look when it chose not to supplement an EIS with-
out “giv[ing] careful scientific scrutiny to the new infor-
mation and explain[ing] why the new information did not
require the preparation of a supplemental EIS”); Laguna
Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 529-30
(9th Cir. 1994) (upholding an agency’s decision not to
34 Nos. 10-1322 & 10-1346
supplement where the agency took a hard look, relying on
“substantial technical expertise possessed by two federal
agencies charged with responsibility for the respective
sectors of the affected environment”).
In short, I would agree that deference to the agency
was appropriate had the agency taken the requisite hard
look and determined that no supplementation was re-
quired. But I find no indication in the record that any
look—hard or otherwise—was taken. I see only a deci-
sion to defer consideration of the cumulative impacts of
the three projects to the cumulative impacts analysis
of the future Fishel EIS. For this reason, I respectfully
dissent.
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