Forest Guardians v. United States Forest Service

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
July 20, 2007
UNITED STATES COURT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

FO REST G U A RD IA N S; C OLORADO
W ILD ; CEN TER FO R N A TIV E
ECOSYSTEM S; CA RSO N FOREST
W A T CH ; K . R AN D A LL M cK OW N;
G ILBER T D U RA N ; and A LIC E DURAN,

Plaintiffs – A ppellants,
v.

UN ITED STATES FOREST SERV ICE,
No. 07-1020
Defendant – Appellee.

-----------------

INTER M OUNTA IN FOREST
ASSOCIATION; INTERM OUNTAIN
RESOURCES, LLC; and M OUNTAIN
VALLEY LUM BER CO., IN C.,

Defendants – Intervenors –
Appellees.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 06-CV-01231)

Nicolas F. Persampieri (Andrea Zaccardi with him on the briefs), Earthjustice,
Denver, Colorado for the Plaintiffs – A ppellants.

Scott W . Horngren, Haglund, Kelley, Horngren, Jones, & W ilder, LLP, Portland,
Oregon and John L. Smeltzer (K enneth Capps, Office of the General Counsel,
U.S. Department of Agriculture; M atthew J. M cKeown, and M ark R. Haag with
them on the briefs), U.S. Department of Justice, W ashington, D.C. for the
Defendants – Appellees.

Before LUC ER O, A ND ER SO N, and M cCONNELL, Circuit Judges.

L UC ER O, Circuit Judge.

Forest Guardians 1 appeal a district court decision finding that the United

States Forest Service (“USFS”) complied with the relevant laws in approving the

County Line Vegetation M anagement Project. They argue that USFS: (1)

violated the National Forest M anagement Act (“NFM A”), 16 U.S.C. § 1604(b), by

failing to collect actual population data for management indicator species

(“M IS”); (2) failed to provide substantial evidence for its conclusion that the

relevant soil standard would be met; and (3) violated the National Environmental

Policy Act (“NEPA ”), 42 U.S.C. §§ 4321 et seq., by failing to consider the

impacts of logging trucks on neighboring landowners. W e take the district

court’s view of the matter and reject Forest Guardians’ first and third claims on

the merits. W e further conclude that Forest G uardians did not present their

1
Plaintiffs in this case include Forest Guardians, Colorado W ild, The
Center for Native Ecosystems, Carson Forest W atch, K. Randal M cK own, Gilbert
Duran, and Alice Duran. W e hereinafter use “Forest G uardians” to refer to
plaintiffs.

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second claim in their administrative appeal and have thus forfeited it.

Accordingly, we A FFIR M .

I

The Rio G rande N ational Forest covers nearly two million acres in southern

Colorado, including the headwaters of the historic Rio Grande. Spanning both

sides of the Continental Divide, it encompasses a wide variety of breathtaking

landscapes, from alpine desert to the organ pipes of the W heeler Geologic Area,

long silenced after their deafening creation from the volcanic froth of the Creede

Caldera. Pursuant to the NFM A, USFS management of the forest is guided by the

Rio G rande N ational Forest Land and Resource M anagement Plan (the “Forest

Plan”), which was comprehensively amended in 1996 to comply with the USFS

regulations that were then in effect. See Nat’l Forest Sys. Land and Res. M gmt.

Planning, 47 Fed. Reg. 43,026 (Sept. 30, 1982) (formerly codified at 36 C.F.R. §

219) (the “1982 Regulations”).

Following an administrative appeal brought by several environmental

groups, USFS determined that additional amendments to the Forest Plan w ere

necessary. Under the 1996 plan, USFS failed to designate M IS as was then

required by 36 C.F.R. § 219.19(a)(6). M IS, like canaries in coal mines, are used

as proxies for environmental health; problems in M IS populations indicate larger

ecosystem trouble. In 2003, USFS again amended the Forest Plan to remedy its

M IS shortcoming. In the Environmental Assessment accompanying that

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amendment, USFS stated, “The primary purpose of the M IS amendment is to

assure that species viability is measured and monitored as directed in 36 C.F.R.

219.19.” Similarly, in its Decision Notice/Finding of No Significant Impact for

the amendment, USFS concluded “M IS selection, monitoring, and assessment

need to meet the intent of monitoring and evaluating M IS as described in the 1982

planning regulations (36 C.F.R. 219.19).”

Towards that end, USFS selected nine M IS for the Rio Grande National

Forest: the brow n creeper, the hermit thrush, the pygmy nuthatch, Lincoln’s

sparrow, W ilson’s warbler, the vesper sparrow, the mule deer, the Rocky

M ountain elk, and the Rio Grande cutthroat trout. W here Rio Grande cutthroat

trout are not present, USFS designated several other trout species to be monitored

in their stead. The amendment also included a chart establishing monitoring

schedules and methods for M IS. 2 Rio Grande cutthroat trout are to be evaluated

every five years, using “Stream surveys/D OW surveys.” 3 M IS birds are subject to

“[p]oint counts, nest search, presence surveys, [and/or] M CB surveys,” 4 to be

conducted “[a]nnually at the state and national forest level.” A footnote to the

M IS birds discussion indicates that “[p]roject-specific monitoring will be

2
The full text of the amending chart is appended to this opinion.
3
“DOW ” refers to the Colorado Division of W ildlife.
4
“M CB” refers to the M onitoring Colorado’s Birds project, administered
by the Rocky M ountain Bird Observatory.

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incorporated into Forest Plan monitoring as applicable.” Finally, mule deer and

Rocky M ountain elk are to be evaluated annually using DOW surveys. The

Forest Plan itself does not explicitly incorporate 36 C.F.R. § 219.19.

Following adoption of the 2003 amendment, and the discovery of a

significant spruce beetle infestation, USFS developed a logging project referred to

as the “County Line Vegetation M anagement Project.” Under that project, USFS

authorized the harvest of 24 to 29 million board feet of timber from a 2282 acre

area. In the southern section of that area, infested trees will be removed from 841

acres. In the northern section, where infestation is minimal, 715 acres will be

thinned. Approximately eighteen miles of roads will be constructed or

reconstructed. Two sections of the project area are considered landslide risks and

will not be logged. In addition, USFS instituted a 100 foot buffer zone on both

sides of any creek. Two waterways fall within the project area – the Rio de los

Pinos and W olf Creek.

To assist it in developing an Environmental Impact Statement (“EIS”) for

the project, USFS prepared a “Specialist Report for M IS,” which details the

agency’s M IS monitoring activities. Two M IS, the pygmy nuthatch and the

vesper sparrow, were not analyzed because no suitable habitat for those species

exists in the project area. Tw o others, W ilson’s warbler and Lincoln’s sparrow,

were also excluded because the project area included only a very limited amount

of habitat for those species. For the final two avian M IS, the brown creeper and

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the hermit thrush, USFS estimated project-level populations using potential

population densities. Project-level point counts confirmed the presence of both

species. Because M IS monitoring did not begin until 2004, USFS did not yet

have forest-wide trend data. Instead, it utilized trend data from the M CB

program, the Colorado Land Bird Conservation Plan, and the Colorado Breeding

Bird Atlas project. The specialist report noted that the project could displace up

to 311 pairs of brown creeper and 155 pairs of hermit thrush, but that such

numbers represented a negligible portion of the forest-level populations of these

species.

Rocky M ountain elk and mule deer population data were based on Colorado

DOW surveys. However, given the range of these animals, it was not feasible to

estimate populations for a relatively small 2282 acre site. The report predicted

that the project would not significantly impact either species. Rio Grande

cutthroat trout forest-level population trend data were based on Colorado DOW

surveys. USFS also reported that core trout populations were found in Rio de los

Pinos about one half mile upstream from the project, and in W olf Creek one mile

downstream from the project. Both populations are cut off from the project area

by the presence of large waterfalls. Population data for these groups were based

on 2001 and 2003 survey data. A lthough it acknowledged the project could

adversely impact the downstream population in the short term, USFS concluded

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that, with mitigation measures, the project would not seriously impact species

density.

In response to a Forest Plan requirement that USFS “[m]anage land

treatments to limit the sum of severely burned and detrimentally compacted,

eroded, and displaced land to no more than 15% of any land unit,” USFS reported

the following: (1) Existing soil impacts were estimated at less than 5% of the

project area, consisting of past logging roads and skid trails; (2) No recent

logging projects were conducted in the southern section of the project area; (3) A

number of mitigation techniques, including use of existing skid trails and the

potential use of a winged subsoiler to till compacted lands, would keep the project

within the 15% limit; (4) Based on the W ater Erosion Prediction Program

(“W EPP”) model, the project would increase erosion rates, but would have little

impact on overall erosion; and (5) Continuous inspection by USFS soil experts

would ensure project compliance.

These statements are supported by five documents in the administrative

record. John Rawinski, a forest soil scientist, provided reports for two on-site

investigations he conducted. The first discusses soil conditions on and around an

existing road that could be used for the project. The second details his inspection

of an area excluded from the project due to its landslide potential. The third

document is a collection of notes and reports from prior projects discussing soil

conditions in the project area. Fourth, a report from geotechnical engineer

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M ichael Burke discusses landslide potential in two areas that were subsequently

excluded from the project. Finally, a report also authored by Rawinski provides

erosion rate estimates using the W EPP model.

M any individuals and groups, including Forest Guardians, submitted

com ments to U SFS w ith respect to the project. Private abutting landowners K.

Randal M cKown, and Alice and Gilbert Duran submitted comments about “noise,

traffic, and dust” that would be generated by logging trucks. Responding to the

private landowners in the final EIS, USFS noted that the project “would have

temporary effects to recreation users and private land owners adjacent to the

proposed treatment areas, especially during the active timber sales with heavy

truck traffic on the roads leading into the sale areas.”

On the same day it issued the final EIS, USFS filed its Record of Decision.

Several environmental groups, 5 along w ith a number of private landow ners,

challenged the project in an administrative appeal. After USFS denied that

appeal, Forest Guardians filed a suit in federal district court alleging: (1) USFS

violated the NFM A by failing to collect project-level M IS population data; (2)

USFS violated the NFM A by failing to meaningfully analyze whether the project

meets the 15% soil productivity standard; (3) USFS violated the NFM A by

5
Those groups were: Forest Guardians, Colorado W ild, The Center for
Native Ecosystems, The Rocky M ountain Chapter of the Sierra Club, The San
Luis Valley Ecosystems Council, The San Juan Citizens A lliance, Carson Forest
W atch, and the W olf Creek Wheel Club.

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deficiently analyzing the project’s impact on stream health; and (4) USFS violated

NEPA by failing to adequately analyze certain indirect and cumulative effects of

the project. Intermountain Forest Association, Intermountain Resources, LLC,

and M ountain V alley Lumber C o., Inc. intervened on behalf of USFS. On

December 6, 2006, the district court issued an order and judgm ent rejecting Forest

Guardians’ claims and denying them relief. Forest Guardians now appeal the

district court’s denial of relief on their first, second, and fourth claims.

II

W hen, as here, a district court’s decision is based on its review of the

administrative record, we conduct our review de novo. Utah Envtl. Cong. v.

Bosworth, 443 F.3d 732, 739 (10th Cir. 2006) (“UEC III”). Forest Guardians

challenge USFS’s approval of the project under the Administrative Procedures

Act (“APA ”), 5 U.S.C. §§ 500 et seq. The APA mandates that agency action be

set aside when it is “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.” 5 U.S.C. § 706(2)(A). W e must determine whether the

challenged action “was based on consideration of the relevant factors and whether

there has been a clear error of judgment.” M arsh v. Or. Natural Res. Council, 490

U.S. 360, 378 (1989) (quotation omitted). In doing so, we afford “substantial

deference” to agencies’ interpretations of their own regulations. UEC III, 443

F.3d at 739.

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 Forest Guardians’ initial claim is that USFS violated the N FM A’s

consistency provision by failing to collect actual M IS population data before

approving the County Line project. NFM A requires that all “contracts . . . for the

use and occupancy of National Forest System lands shall be consistent with the

land management plans.” 16 U.S.C. § 1604(i). In this case, the relevant land

management plan is the Rio Grande National Forest Land and Resource

M anagement Plan, including the 2003 amendment.

Forest Guardians advance a multi-step argument. First, they contend, the

2003 Forest Plan amendment incorporated the 1982 Regulations, specifically the

1982 version of 36 C.F.R. § 219.19. Second, they cite Utah Envtl. Cong. v.

Bosworth, 372 F.3d 1219 (10th Cir. 2004), (“UEC I”) for the proposition that the

1982 version of 36 C.F.R. § 219.19 6 requires U SFS to collect actual M IS

population data for project-level activities, rather than relying on estimates. See

id. at 1227. Thus, they claim that the Forest Plan requires the collection of actual

population data prior to a project’s approval.

“Forest plans may require particular standards to be followed regardless of

later changes in the regulations.” Ecology Ctr., Inc. v. U.S. Forest Serv., 451

6
USFS implementing regulations w ere replaced first by a transitional rule
in 2000, see Nat’l Forest Sys. Land and Res. M gmt. Planning, 65 Fed. Reg.
67,514 (Nov. 9, 2000), and then by a final rule in 2005, see Nat’l Forest Sys.
Land M gmt. Planning, 70 Fed. Reg. 1,023 (Jan. 5, 2005). See also UEC III, 443
F.3d at 737 (discussing the history of the regulations). Forest Guardians do not
allege that USFS violated the subsequent versions of the rules.

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F.3d 1183, 1190 (10th Cir. 2006). If a forest plan adopts the language of a

generally applicable regulation, that language remains binding on USFS

regardless of subsequent regulatory amendments, until the forest plan itself is

altered. Plaintiffs in both Ecology Ctr. and UEC III advanced claims similar to

Forest Guardians’ argument here; however, in both prior cases we determined that

the forest plans at issue did not adopt the 1982 Regulations. Id.; UEC III, 443

F.3d at 748. The same is true in this case.

Forest Guardians cite several documents that reference the 1982

Regulations: the Environmental Assessment for the 2003 Amendment, the

Decision Notice/Finding of No Significant Impact for that amendment, and the

Specialist Report for M IS compiled for the County Line project. But the Forest

Plan itself does not explicitly incorporate the 1982 Regulations. Nor do the

Forest Plan’s M IS-monitoring requirements track the language of the 1982

Regulations. Rather, the Forest Plan mandates forest-wide, periodic monitoring

of M IS. Such monitoring may include direct observation, but reliance on DOW

or M CB surveys is also permitted.

The disconnect between the USFS planning documents, which specifically

note that the purpose of the 2003 Amendment was to adopt the 1982 version of 36

C.F.R. § 219.19, and the Forest Plan itself, which does not require actual

population data at the project level, is easily explained. In 2003, before we

determined that USFS was required to collect actual population data at the

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project-level, see UEC I, 372 F.3d at 1227, USFS took the position that the 1982

Regulations did not require actual counting. See Utah Envtl. Cong. v. Bosworth,

439 F.3d 1184, 1191 (10th Cir. 2006) (“UEC II”) (“Prior to U EC I, the Forest

Service contended that it need not conduct ‘head-counts’ of M IS in a planning

area because it had discretion to assess a project’s effects on M IS using habitat

data, population data, or both.”). At the time it drafted the 2003 Amendment

planning documents, USFS believed the M IS monitoring requirements included in

the Forest Plan, which do not mandate project-level head counts, complied with

the 1982 Regulations. Although we later held that USFS’s position on the 1982

Regulations was incorrect in UEC I, our holding in that case does not control our

interpretation of the Forest Plan.

B ecause the Forest Plan does not incorporate the 1982 Regulations, we

m ust look to the plan itself, not the Code of Federal Regulations or our case law,

to determine whether USFS complied with its M IS-monitoring duties. Comparing

the text of the Forest Plan with USFS’s actions, we conclude that it did. W ith

respect to the Rio Grande cutthroat trout, USFS relied on Colorado DOW surveys

for forest-wide trend data, precisely as directed by the Forest Plan. For the trout

populations closest to the project area, USFS considered prior survey data from

2001 and 2003, both within the plan’s five-year review cycle. M ule deer and

Rocky M ountain elk population data were also based on Colorado DOW surveys,

as directed by the Forest Plan. Finally, USFS relied on M CB surveys for forest-

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level M IS bird data. The Forest Plan includes such surveys in its list of

acceptable bird monitoring techniques. Although the plan includes a footnote

indicating that project-specific monitoring of M IS birds will be conducted “as

applicable,” Forest G uardians do not argue that this notation required project-

specific monitoring in this case. Accordingly, USFS complied w ith the Forest

Plan’s M IS-monitoring directives.

III

Forest Guardians advances a second NFM A consistency claim. They argue

USFS failed to provide substantial evidence for its conclusion that the project

would comply with the Forest Plan’s soil requirements. Agency decisions must

be based on “substantial evidence,” which is evidence sufficient to “justify, if the

trial w ere to a jury, a refusal to direct a verdict when the conclusion to be draw n

is one of fact.” O lenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th

Cir. 1994) (quotation omitted). Evidence is not substantial if it “constitutes mere

conclusion.” Id. at 1581.

USFS argues that Forest G uardians have forfeited this claim by failing to

adequately present their objection during administrative proceedings. Plaintiffs

must exhaust administrative procedures before filing suit against USFS. See 7

U.S.C. § 6912(e). 7 Parties generally must “‘structure their participation so that it

7
The district court did not rule on the exhaustion issue, and it was
apparently not raised below. As a general matter, we do not consider issues that
(continued...)

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alerts the agency to the parties’ position and contentions,’ in order to allow the

agency to give the issue meaningful consideration.” Dep’t of Transp. v. Pub.

Citizen, 541 U.S. 752, 764 (2004) (quoting Vt. Yankee Nuclear Pow er Corp. v.

Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)) (omission and

alteration omitted). Claims not properly raised before an agency are waived,

unless the problems underlying the claim are “obvious,” id. at 764-65, or

otherwise brought to the agency’s attention, see Wyo. Lodging & Rest. Ass’n v.

7
(...continued)
were not raised below. See W alker v. M ather (In re W alker), 959 F.2d 894, 896
(10th Cir. 1992). That rule, however, “is not inflexible and the matter of what
questions may be taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be exercised on the facts of
individual cases.” Anixter v. Home-stake Prod. Co., 77 F.3d 1215, 1229 (10th
Cir. 1996) (quotations and citations omitted).
The general waiver rule does not apply to jurisdictional issues, which may
be raised at any time. See Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir.
2006). Thus USFS would be able to raise this claim if § 6912(e) is a
jurisdictional statute. Circuits have split on that question. See Ace Prop. & Cas.
Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 997-98 (8th Cir. 2006) (noting the
split and collecting cases). R ather than decide that issue of first impression, w e
exercise our discretion to hear USFS’s argument for the first time on appeal
regardless. Such review may be appropriate when, as here, “the proceedings
below resulted in a record of amply sufficient detail and depth from which the
determination may be made.” United states v. M endez, 118 F.3d 1426, 1431 n.2
(10th cir. 1997) (quotation omitted). The fact that exhaustion is an issue of law,
see Fitzgerald v. Corr. Corp. of A m., 403 F.3d 1134, 1138 (10th Cir. 2005), also
counsels in favor of considering the defense, see Ross v. United States M arshal,
168 F.3d 1190, 1195 n.5 (10th Cir. 1999), as does the fact that the issue presents
an alternative basis for affirmance. See Stahmann Farms, Inc. v. United States,
624 F.2d 958, 961 (10th Cir. 1980). Notably, although Forest Guardians mention
that USFS raised the exhaustion issue for the first time on appeal, they do not
argue that the issue has been waived; instead, they proceeded to fully brief it. For
these reasons we deem it appropriate to consider administrative exhaustion.

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U.S. Dep’t of the Interior, 398 F. Supp. 2d 1197, 1211 (D. W yo. 2005) (holding

that the presence of third party comments addressing an issue put an agency on

notice). In order to satisfy exhaustion requirements, a plaintiff must present its

claim to USFS in sufficient detail to allow the agency to rectify the alleged

violation. See Native Ecosystem C ouncil v. Dombeck, 304 F.3d 886, 899-900

(9th Cir. 2002); Kleissler v. U.S. Forest Serv., 183 F.3d 196, 202 (3d Cir. 1999).

In response to the draft EIS for the County Line project, Forest Guardians

submitted a comment listing a number of complaints. W ith respect to the soil

standard, they stated:

The [Water Conservation Practices Handbook] further requires that
no more than 15% of the soils in any watershed be detrimentally
compacted, eroded, or displaced. Yet the [draft EIS] discloses that
21.4% of the 7th level watershed of concern (Rio de los Pinos
Tributary) will be affected under [the selected alternative]. Further,
the [draft EIS] notes that more than 15% of the total watershed
disturbance will occur, flatly violating the [Watershed Conservation
Practices Handbook]. . . .
The [draft EIS] notably calculates the total equivalent disturbance
acreage as 15% of each harvest area. W hat data or research is this
figure based on? It appears that the Forest Service chose to calculate
it at 15% , not because there is any data or research that can justify
this figure, but because it is the maximum permitted.

(citations omitted). USFS included much of this comment in the final EIS,

responding that Forest G uardians improperly conflated the soil standard with

watershed analysis. Under the soil standard, USFS must “[m]anage land

treatments to limit the sum of severely burned and detrimentally compacted,

eroded, and displaced land to no more than 15% of any land unit.” In conducting

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watershed analysis, USFS classifies a watershed as “of concern” if a certain

percentage of its land is “disturbed.” As USFS noted in its EIS response to Forest

Guardians’ comments, there are several differences between the two standards:

(1) W atersheds are typically much larger than the activity areas considered in the

soil standard; (2) “Disturbed,” “detrimentally compacted,” “detrimentally

eroded,” “detrimentally displaced” and “severely burned” are terms of art with

specific definitions – they are not interchangeable; and (3) Projects may exceed

the “watershed of concern” threshold, but the soil standard is mandatory.

Follow ing USFS’s decision to move forward with the County Line project, Forest

Guardians filed an administrative appeal in which they repeat the soil standard

allegation included in their prior comment verbatim.

W hether these statements put USFS on notice of Forest Guardians’

substantial evidence soil standard claim is a close question, and one complicated

by Forest Guardians’ apparent confusion of two independent provisions. M uch of

their argument is simply incorrect. There is no requirement that “no more than

15% of the soils in any watershed be detrimentally compacted, eroded, or

displaced”; rather, the soil standard refers to any “land unit.” USFS’s 15%

estimate, repeatedly cited by Forest Guardians, refers not to detrimental

compaction, erosion, or displacement, but to disturbances – a term used in

watershed analysis but not in the soil standard.

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 Ultimately, we conclude that Forest Guardians did not adequately present

this issue in its administrative appeal and have thus forfeited it. See Pub. Citizen,

541 U .S. at 764. The above-quoted language was included in a section of Forest

Guardian’s comments (and later, its administrative appeal), entitled “Impacts to

W ater Quality,” and not in the immediately preceding section entitled “Unstable

Soils.” Although they cite the EIS, Forest Guardians refer to USFS’s discussion

of watershed analysis, not its statements regarding the soil standard. The sole

connection between the soil standard and Forest G uardian’s statements to USFS is

their use of the phrase “detrimentally compacted, eroded, or displaced.” Read in

context, Forest Guardians’ statements simply cannot be understood as arguing

that the record lacked substantial evidence to support USFS’s conclusions

regarding the soil standard. Instead, an administrative officer reading the

complaint would conclude that Forest Guardians raised a challenge to U SFS’s

watershed analysis, and simply inserted incorrect language from the soil standard.

Forest Guardians argue that their claim was properly presented because the

Appeal Review ing Officer (“ARO”) discusses the soil standard in his

recommendation to deny their administrative appeal. Although such evidence is

normally considered highly probative, the references to the soil standard in this

case do not lend credence to Forest Guardians claim that they properly presented

the soil standard issue. The ARO first cites the soil standard in discussing a

completely unrelated, now-abandoned claim advanced by Forest Service in its

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administrative appeal: that USFS violated NEPA by failing to consider

alternative road locations. The only other A RO reference to the soil standard

simply points out that Forest G uardians are confusing the soil standard with

watershed analysis. It is plain that the A RO interpreted this section of Forest

Guardians’ appeal as a watershed challenge. Neither ARO comm ent undermines

our conclusion that Forest Guardians failed to adequately present their substantial

evidence soil standard claim in their administrative appeal.

IV

Finally, Forest Guardians claim USFS failed to consider the impact of

truck-related dust, noise, and diesel fumes on adjacent lands. NEPA requires the

evaluation and disclosure of environmental impacts before undertaking “major

Federal actions significantly affecting the quality of the human environment,” 42

U.S.C. § 4332(2)(C), including impacts on private lands, see 40 C.F.R. § 1508.14

(noting that the phrase “‘[h]uman environment’ shall be interpreted

comprehensively to include the natural and physical environment”). NEPA does

not require that an agency discuss every impact in great detail; it simply requires

a reasoned evaluation of the relevant factors. Utah Shared Access Alliance v.

U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir. 2002). M oreover, NEPA does

not require that an agency give any particular weight to environmental

considerations. That is, it “merely prohibits uninformed – rather than unwise –

agency action.” Robertson v. M ethow Valley Citizens Council, 490 U.S. 332, 351

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(1989). In reviewing the adequacy of an EIS, we determine w hether “there is a

reasonable, good faith, objective presentation of the topics,” such that it “foster[s]

both informed decision-making and informed public participation.” Custer

County Action Ass’n v. Garvey, 256 F.3d 1024, 1035 (10th Cir. 2001) (citations

and quotations omitted).

Following the draft EIS, adjacent landowner and appellant K. Randal

M cKown submitted a comment to USFS expressing concern over the “noise,

traffic and dust that a commercial [logging] operation of this magnitude will

generate.” Similarly, appellants Gilbert and Alice Duran commented that the

“noise, dust, diesel exhaust and countless trucks will have a negative impact on

all of us.” USFS included these comments in the final EIS and, in response,

noted that the project “would cause additional noise and activity adjacent to your

property during project implementation.” M oreover, in the body of the final EIS,

USFS disclosed that the project “would have temporary effects to recreation users

and private land owners adjacent to the proposed treatment areas, especially

during the active timber sales with heavy truck traffic on the roads leading into

the sale areas.”

These statements adequately demonstrate that USFS considered the impacts

of noise, dust, and fumes on private landowners, which are clearly encompassed

by the “temporary effects” of “heavy truck traffic.” NEPA imposes no obligation

to use precise phrasing. By including this language in the final EIS, USFS put the

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public on notice that this project, and its attendant truck traffic, would have

negative consequences. This is not a case in which USFS made a finding of no

significant impact. Instead, it acknowledged that the project would cause a

number of significant environmental problems – including dust, noise, and diesel

fumes – but, as noted by USFS, it opted to pursue the project anyway based on

other considerations. Idiosyncratically, NEPA does not require more. Robertson,

490 U.S. at 351.

V

For the foregoing reasons, the decision of the district court is AFFIRM ED.

All pending motions are denied.

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