Ouachita Watch League v. Jacobs

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
___________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 5, 2006
No. 05–14461
THOMAS K. KAHN
___________________ CLERK

D.C. Docket No. 03-01230 CV–ODE–1

OUACHITA WATCH LEAGUE,
JERRY WILLIAMS,
FOREST CONSERVATION COUNCIL,

Plaintiffs–Appellants,

versus

ROBERT JACOBS, in his official capacity as Regional Forester
of the Southern Region of the U.S. Forest Service,
DALE BOSWORTH, in his official capacity as Chief of the U.S. Forest Service,
U.S. FOREST SERVICE, an agency of the U.S. Department of Agriculture,
ANN M. VENEMAN, in her official capacity as Secretary
of the U.S. Department of Agriculture,
U.S. DEPARTMENT OF AGRICULTURE,

Defendants–Appellees.
___________________

No. 05–14462
___________________

D.C. Docket No. 01–01976 CV–ODE–1
THE CHATTOOGA CONSERVANCY,
BIODIVERSITY LEGAL FOUNDATION,
FLORIDA BIODIVERSITY PROJECT,
FOREST CONSERVATION COUNCIL,
GEORGIA FORESTWATCH,
OUACHITA WATCH LEAGUE,
SIERRA CLUB,
SOUTHERN APPALACHIAN BIODIVERSITY PROJECT,
WILD ALABAMA,
WILD SOUTH,
WILDERNESS SOCIETY,

Plaintiffs–Appellants,

versus

ROBERT JACOBS,
as Regional Forester of the Southern Region
of the U.S. Forest Service,
U.S. FOREST SERVICE,

Defendants–Appellees.

_________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(September 5, 2006)

Before ANDERSON, BARKETT and CUDAHY,* Circuit Judges.

*
Honorable Richard D. Cudahy, Circuit Court Judge for the Seventh Circuit, sitting by
designation.

2
CUDAHY, Circuit Judge:

The basic substantive issue in this consolidated appeal is whether a coalition

of environmental groups (collectively, Ouachita) is correct that the U.S. Forest

Service’s (Forest Service’s) changes to certain forest plans1 in the Southern Region2

of the United States failed to comply with the National Environmental Policy Act

(NEPA) and the National Forest Management Act (NFMA). The district court never

reached that issue, concluding instead that the majority of Ouachita’s claims were not

ripe for review. That conclusion was wrong, since it was based primarily on a

construction of the ripeness doctrine that is generally standard but does not apply in

NEPA suits. Because we find no merit in the Forest Service’s claims that Ouachita

lacks standing and that certain claims are now moot (both of which it raised for the

first time on appeal), we reverse the judgment of the district court and remand the

case for further proceedings.

I. BACKGROUND

1
Forest plans are land and resource management plans that provide for multiple uses of
the forest, including outdoor recreation, range, timber watershed, wildlife and fish, and
wilderness. 16 U.S.C. § 1604 (2006).
2
The Southern Region covers Alabama, Arkansas, Florida, Georgia, Kentucky,
Louisiana, Mississippi, North Carolina, Oklahoma, Puerto Rico, South Carolina, Tennessee,
Texas and Virginia. 36 C.F.R. § 200.2 (2006).

3
 The central dispute between the parties in this case centers on environmental

impact statements and records of decision (collectively, EISs) for forests in three

subregions of the Southern Region (specifically, the Appalachian Mountains

subregion, the Coastal Plain/Piedmont subregion and the Ozark/Ouachita Mountains

subregion). These EISs, which the Forest Service completed following our decision

in Sierra Club v. Martin, 168 F.3d 1 (11th Cir. 1999), relate to revisions and

amendments to the Forest Service’s procedures for collecting information on

proposed, endangered, threatened and sensitive species, commonly called PETS.

Ouachita argues that these EISs fail to consider and are inconsistent with three earlier

vegetative management plans and EISs (collectively, VMEISs) for the Southern

Region, which the Forest Service completed in 1989.

The 1989 VMEISs cover more than 12.6 million acres of national forest land

spanning 13 states. They specifically consider five distinct methods of vegetation

management,3 along with (pursuant to 40 C.F.R. § 1502.14 (2006)) measures to

mitigate any potential damages that those methods might cause.

The VMEISs require that when the Forest Service considers using one of the

five vegetation management methods, it perform a biological evaluation of the effects

3
The five methods of vegetation management are: (1) prescribed fire; (2) mechanical
methods (such as bulldozers and mowers); (3) manual methods (such as clippers and chainsaws);
(4) biological methods (such as grazing); and (5) herbicides. (R., Chattooga Conservancy,
69:Vol. IV, tab 1 at vi–viii.)
4
on PETS as part of its consideration. Specifically, the VMEISs provide that:

[w]hen adequate population inventory information is unavailable, it
must be collected when the site has a high potential for occupancy by a
threatened, endangered, proposed, or sensitive species.

(R., Chattooga Conservancy, 69:Vol. IV, tab 1 at II–41.) The Forest Service

interpreted this language to require population inventories only if the site has a high

potential for occupancy by PETS. Martin, 168 F.3d at 4. Information about the

habitats, it reasoned, satisfied the monitoring requirement. Id. The Forest Service

later amended the forest plans for each forest at issue in this case to include this

PETS-monitoring language.

In 1996, several plaintiffs involved in the present appeal sued the Forest

Service, arguing that its interpretation of the PETS-monitoring language was

incorrect. On appeal, we concluded that the plain language of the VMEISs’ provision

required the Forest Service to perform population inventories in project areas where

such inventories were not “available.” Id.

Not long after Martin, the Forest Service amended the forest plans of three

national forests to adopt revised PETS-monitoring provisions. This new language

provided that, in certain circumstances, the Forest Service need not perform

inventories but could instead assume the presence of PETS if suitable habitats were

5
present.4 The Forest Service has since replaced these amendments and adopted new

language.5

In response to the amendments (and before the adoption of the new language),

several environmental groups sued the Forest Service on July 26, 2001. Chattooga

4
The substantially identical revisions provide in full:

However, there are some PETS species and situations where information to
determine potential effects to PETS species may not require field surveys. For
these situations, the PETS species in question would be assumed to occur in the
area if suitable habitat is present, and effects to the species would be considered in
the effects analysis. These situations occur when:

1. There is a low likelihood of detecting a particular species: a field
survey probably would not find that species and therefore could not
provide definitive information for excluding a species being
considered for protection.
2. Established Forest Plan direction or mitigation that effectively
protects PETS species expected to occur in suitable habitat in the
project vicinity is already in place and is part of the proposed action.
3. Habitat requirements of a PETS species are well known and (a) there
is sufficient evidence that the proposed actions would have only
short- or long-term beneficial effects or no adverse effects to PETS
species or (b) any expected adverse effects of the proposed actions
would not be likely [to] cause it to be Federally listed or to suffer
reduced viability.

(R., Chattooga Conservancy, 69:Vol. IV, tab 5 at 2; 70:Ex. A–1 & B–1.)
5
The new language states that “A biological evaluation of how a project
may affect any species Federally listed as threatened, endangered or proposed, or
identified by the Forest Service as sensitive shall be done as part of the site-
specific environmental analysis. This evaluation considers available information
on threatened, endangered, proposed, and sensitive species populations and their
habitat for the proposed treatment area.” (R., Chattooga Conservancy, 69:Vol. IV,
tab 9 at 2–4.)
6
Conservancy v. Jacobs, 373 F. Supp. 2d 1353 (N.D. Ga. 2005). The basic theory of

Chattooga Conservancy was that these amendments were a thinly veiled attempt to

avoid the requirements of Martin. Specifically, the complaint alleged that the forest

plan amendments and revisions violated the governing regional VMEISs. In addition,

the complaint alleged that the Forest Service violated NEPA in several ways,

including by failure to prepare supplements to the regional VMEISs before making

the plan amendments and revisions.

In response to the complaint, the Forest Service gave notice of its intention to

prepare supplements to the VMEISs and to amend the Forest Service Manual to

include a new requirement of a time to perform population inventories for PETS

species. Both the forest plan amendments and the manual revision eliminated the

requirement that the Forest Service collect population inventory data on PETS

species.

On May 7, 2003, many of the plaintiffs involved in Chattooga Conservancy

filed another suit challenging a number of site-specific projects on several national

forests, most of which were severed and transferred. Forest Conservation Council

v. Jacobs, 374 F. Supp. 2d 1187 (N.D. Ga. 2005). The portion of the complaint in

that action relevant to the present appeal challenged the Forest Service’s NEPA

7
compliance with respect to Amendment 31 to the Ouachita National Forest Plan,6

which specifically revised that plan so that the Forest Service could rely upon “habitat

information” instead of “population inventories.” The Forest Service now claims that

Ouachita’s challenge to Amendment 31 is moot. Chattooga Conservancy and Forest

Conservation Council (the latter of which the parties refer to as “Wild South”) were

consolidated for the purposes of this appeal.

II. DISCUSSION

We review a district court’s entry of summary judgment, along with threshold

justiciability determinations, de novo. Sierra Club v. Tenn. Valley Auth., 430 F.3d

1337, 1344 (11th Cir. 2005); Wilderness Soc’y v. Alcock, 83 F.3d 386, 389 (11th Cir.

1996). We review an agency’s decisions pursuant to NEPA under the arbitrary and

capricious standard of the Administrative Procedure Act (APA). 5 U.S.C. §

706(2)(A) (2006); City of Oxford v. FAA, 428 F.3d 1346, 1351 (11th Cir. 2005).

A. Threshold Justiciability Considerations

6
The text of Amendment 31 is provided supra note 4.

8
 The Forest Service has challenged Ouachita’s claims on ripeness, mootness and

standing grounds—the latter two of which it raised only on appeal. We begin with

the standing consideration, since we have an obligation to assure ourselves of a

litigant’s standing under Article III, which provides a fundamental limitation on a

federal court’s authority to exercise jurisdiction. DaimlerChrysler Corp. v. Cuno,

126 S. Ct. 1854, 1860–61 (2006).

1. STANDING

Resolving the Forest Service’s claim that Ouachita lacks standing requires

analysis under both the constitutional and the nonconstitutional or prudential standing

doctrines. Kowalski v. Tesmer, 543 U.S. 125, 128 (2004). Since this case involves

a coalition of environmental groups, the rules for associational standing also apply.

That is, “[a]n association has standing to bring suit on behalf of its members when its

members would otherwise have standing to sue in their own right, the interests at

stake are germane to the organization’s purpose, and neither the claim asserted nor

the relief requested requires the participation of individual members in the lawsuit.”

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181

(2000); Tenn. Valley Auth., 430 F.3d at 1344. So long as one party has standing,

9
other parties may remain in the suit without a standing injury. Clinton v. City of New

York, 524 U.S. 417, 434–36 (1998).

The requirements for constitutional standing are familiar: Ouachita must show

that it has suffered an injury in fact that was caused by the Forest Service’s actions

and that can be redressed by a favorable judicial decision. Friends of the Earth, 528

U.S. at 180–81 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).

In environmental suits, the injury-in-fact inquiry tends to be more searching than the

causation or redressability considerations. Sierra Club v. Johnson, 436 F.3d 1269,

1277–78 (11th Cir. 2006); see also Citizens for Better Forestry v. U.S. Dep’t of

Agric., 341 F.3d 961, 972 (9th Cir. 2003); Cantrell v. City of Long Beach, 241 F.3d

674, 682 (9th Cir. 2001).

Although the statutory scheme, acronyms and terms of art make this case

appear somewhat confusing at the outset, the fundamental dispute with respect to

which we analyze standing is rather straightforward: Ouachita alleges that the Forest

Service has shirked its duties under NEPA and NFMA, with the result that already

vulnerable species and their habitats are now more vulnerable. The injury that

Ouachita asserts is a procedural injury, but that does not fundamentally alter the

constitutional standing analysis. See City of Sausalito v. O’Neill, 386 F.3d 1186,

1197 (9th Cir. 2004). To show a cognizable injury in fact in a procedural injury case,

10
a plaintiff must allege that the agency violated certain procedural rules, that these

rules protect a plaintiff’s concrete interests and that it is reasonably probable that the

challenged action will threaten these concrete interests. Johnson, 436 F.3d at

1278–79.

Because the Forest Service has raised the issue of Ouachita’s standing for the

first time on appeal, we must look to the declarations in the record to determine

whether Ouachita has standing to maintain the suit. Region 8 Forest Serv. Timber

Purchasers Council v. Alcock, 993 F.2d 800, 806–07 (11th Cir. 1993). Turning to the

declarations requires that we pause briefly to resolve two motions pending before us:

the Forest Service’s motion to strike declarations that Ouachita filed with its reply

brief and Ouachita’s cross-motion for leave to file those declarations.

Although we generally do not consider evidence that the parties did not submit

in the district court, we have the power to do so when doing so is in the interests of

justice and judicial economy. Young v. DeVaney ex rel. City of Augusta, Ga., 59 F.3d

1160, 1168 (11th Cir. 1995). Where “additional material would be dispositive of

pending issues in the case,” we are often more willing to allow supplementation of

the record. Id. Here, the record indicates that the Forest Service challenged

Ouachita’s general standing to maintain this suit for the first time on appeal, although

it did make site-specific standing challenges in the trial court. Given that the

11
declarations in question resolve the standing issue and illuminate the mootness issue,

and given the length of time that these environmental suits have been pending, we

conclude that it is in the interests of justice and efficiency to consider the

supplemental declarations. We therefore deny the Forest Service’s motion to strike

the declarations and grant Ouachita’s motion for leave to supplement the record on

appeal.

Having resolved the motions pending before us, we return to the issue of

constitutional standing. All Ouachita needs to establish associational standing is one

person in each region who can establish standing. It is well settled that, in a NEPA

suit, “a cognizable procedural injury exists when a plaintiff alleges that a proper EIS

has not been prepared . . . when the plaintiff also alleges a ‘concrete’ interest—such

as an aesthetic or recreational interest—that is threatened by the proposed actions.”

Johnson, 436 F.3d at 1278–79.

Applying that standard to the present facts, we conclude that Ouachita easily

meets the constitutional test for injury in fact. Ouachita’s declarations indicate that

many of its plaintiffs use and will continue to use the forests in the three regions

covered by the VMEISs and the EISs for recreation and, in some cases, for their

livelihoods. (See, e.g., R., Wild South, 12:Ex. M, Decl. of Tracy Davids ¶ 4–5

(regarding the Appalachian Mountains subregion, noting “I also use and enjoy the

12
biological, recreational and aesthetic values of [some of the forests at issue], and

appreciate the complex interactions of plant and animal species which indicate the

health of the National Forests. . . . The Forest Service’s Secretary’s failure to

adequately analyze the environmental impacts of these timber sales has prevented the

implementation of proactive measures that can prevent the decline of this area.”);

Appellant’s Reply Br., Decl. of Norman F. (Buzz) Williams ¶ 8 (regarding the

Appalachian Mountains subregion, noting, “I engage in hiking, canoeing, fishing,

birdwatching, archeological and cultural studies throughout each of the three National

Forests in the Chattooga watershed.”); R., Wild South, 12:Ex. B, Decl. of Lamar

Marshall ¶ 4 (regarding the Coastal Plain/Piedmont subregion, noting “I regularly

participate in a wide range of recreational activities in the National Forests in

Mississippi, often in the areas that are the subject of this lawsuit.”); R., Wild South,

12:Ex. H, Decl. of Alvin Brooks ¶ 2 (regarding the Ozark/Ouachita subregion, noting

“I have suffered personal harm due to Forest Service activities . . . . [H]erbicide drift

from forestland above me contaminated my pond so that I could not claim the cattle

I sold were ‘organic.’”).)7 These declarations also allege quite clearly that the Forest

7
The excerpts quoted above are, of course, only a sample of the relevant declarations that
Ouachita provided. The Forest Service makes a brief argument that some of these declarations
are irrelevant because they relate to site-specific claims no longer involved in the present suit.
(Appellee’s Br. 30 n.4.) We find this argument curious; it is our understanding that the Forest
Service analyzed the site-specific projects under the regional forest plans. If a plaintiff had
standing to challenge a site-specific project (which is narrower and may require a tighter nexus

13
Service’s failure to analyze the potential environmental impact of various projects and

policy changes make it substantially more likely that the declarants’ interests will be

harmed. (See, e.g., R., Wild South, 12:Ex. L, Decl. of Steven Krichbaum ¶ 10

(regarding the Appalachian Mountains subregion, noting “The implementation of

[certain projects] without compliance with appropriate statutes and regulations will

cause substantive injury to my scientific use and recreational and aesthetic enjoyment

of [a forest at issue].”); Appellant’s Reply Br., Decl. of Norman F. (Buzz) Williams

¶ 8 (regarding the Appalachian Mountains subregion, noting, “During these

excursions, I have witnessed excessive siltation of the Chattooga River and ma[n]y

of its tributaries from management activities on National Forests, including logging,

road building, burning, and other vegetative management.”); R., Wild South, 12:Ex.

D, Decl. of Brandt Mannchen at 4 (regarding the Coastal Plain/Piedmont subregion,

noting “I complained that the impacts that the Sierra Club observed reduced

biodiversity of the riparian zone by removing or injuring hardwoods and other

vegetation, increased sedimentation, and reduced shade on the stream and thus

warmed the water. I also complained that the burning and logging make the trail less

interesting to hike because there is less diversity of vegetation to observe.”); R.,

with the area affected by the project), then a fortiori that plaintiff would have standing to
challenge the regional plan under which the specific project was approved.

14
Chattooga Conservancy, 34:Ex. T, Decl. of David Reagan ¶ 9 (regarding the

Ozark/Ouachita subregion, noting “The Forest Service’s failure to collect population

inventory data on Proposed, Endangered, Threatened, and Sensitive Species (PETS)

has deprived both the agency and interested members of the public of information

needed to assess the impacts of the agency’s vegetation management on rare,

sensitive, and declining wildlife and plants, and on wildlife generally . . . . This

directly impacts my use and enjoyment of the forest, as these rare and sensitive

species are a significant part of why I recreate there.”); R., Chattooga Conservancy,

34:Ex. 5, Decl. of Jerry Williams ¶¶ 12–14 (regarding the Ozark/Ouachita subregion,

noting “I have used [the forests] for hunting . . . fishing . . . recreation, observation

of wildlife, and checking of Forest Service activities due to concern for damage to the

forest resources . . . . I intend to keep using [the forests at issue], all of which will be

harmed if these projects proceed forward as planned.”).) In short, Ouachita’s

exhaustive declarations establish far more than a general public interest in the forests.

Constitutional standing also requires that Ouachita establish causation and

redressability. Once, however, a plaintiff has established injury in fact under NEPA,

the causation and redressability requirements are generally more relaxed. See

Cantrell, 241 F.3d at 682. To establish causation, Ouachita must demonstrate only

that it is reasonably probable that the challenged actions will threaten its concrete

15
interests. See, e.g., Citizens for Better Forestry, 341 F.3d at 972.

The Forest Service argues that none of the Ouachita plaintiffs can show that

any alleged Forest Service activities will cause harm to any PETS species. The Forest

Service argues instead that the revisions and amendments to the forest plans (for

which Ouachita alleges that the EISs were insufficient) have no on-the-ground

impact. Since, the Forest Service argues, Ouachita cannot demonstrate that the

revisions and amendments demonstrably increase the risk of actual harm to at least

one PETS species, Ouachita cannot establish causation.

This formulation of the causation test, especially in the NEPA context, is far

too rigid. The proper focus on causation is not harm to the environment, but harm to

the plaintiffs. Laidlaw, 528 U.S. at 181. Here, as we discussed earlier, the plaintiffs

were harmed when their procedural rights under NEPA were violated. Since the

Forest Service (according to Ouachita) failed to follow NEPA, it is clear that the

Forest Service caused Ouachita’s alleged injury. That is the extent of Ouachita’s

burden to establish causation.

The final piece of constitutional standing is redressability. The court, if it

concludes that the Forest Service has failed to follow NEPA, has the power to order

the agency to comply. As the injury Ouachita asserts is the Forest Service’s failure

to comply with NEPA, that injury is plainly redressable. See, e.g., Utah v. Babbitt,

16
137 F.3d 1193, 1216 & n.37 (10th Cir. 1998). Ouachita has therefore satisfied the

elements of constitutional standing.

Concluding that Ouachita meets the constitutional standing test does not

entirely resolve the standing inquiry—Ouachita still must demonstrate that it has

satisfied the nonconstitutional or prudential standing requirements. The relevant

prudential inquiry is “whether a particular plaintiff has been granted a right to sue by

the statute under which he or she brings suit.” City of Sausalito, 386 F.3d at 1199.

“Because NEPA does not provide for a private right of action, plaintiffs challenging

an agency action based on NEPA must do so under the Administrative Procedure

Act.” Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir. 2005); see

also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990). A plaintiff wishing to

establish standing under the APA must show that there has been a final agency action

adversely affecting it and that, as a result, it suffers a legal wrong or that its injury

falls within the “zone of interests” of the statutory provision that the plaintiff claims

was violated. Nat’l Wildlife Fed’n, 497 U.S. at 882.

The Forest Service has not challenged Ouachita’s prudential standing in this

suit. We tarry here only to note that any prudential challenge would be futile. It is

well settled that “a final EIS or the record of decision issued thereon constitute[] final

agency action.” Sw. Williamson County Cmty. Ass’n, Inc. v. Slater, 173 F.3d 1033,

17
1036 (6th Cir. 1999). In addition, plaintiffs in the Ouachita coalition have alleged

that the Forest Service’s failure to comply with NEPA with respect to revisions to

certain forest plans in the Southern Region have adversely affected the environment,

which is the source of their injury. Finally, since the injury alleged is environmental,

it falls within the zone of interests protected by NEPA (via the APA).

Thus, we conclude that Ouachita has satisfied both the constitutional and

prudential standing tests and is therefore a proper plaintiff. We must now turn to the

remaining justiciability issues in this appeal—ripeness, which the district court found

dispositive, and mootness, which the Forest Service raised for the first time on appeal.

2. RIPENESS

We note at the outset of the discussion that the Forest Service has abandoned

its ripeness challenge and instead frames its argument in terms of standing.

(Appellee’s Br. 20–22.) We pause here only to explain why Ouachita is correct that

its claims are ripe for review.

We have noted in earlier decisions that delineating between the doctrines of

standing and ripeness is particularly confusing. “Few courts draw meaningful

distinctions between the two doctrines; hence, this aspect of justiciability is one of the

18
most confused areas of the law.” Wilderness Soc’y v. Alcock, 83 F.3d 386, 389–90

(11th Cir. 1996). “When determining standing, a court asks whether these persons

are the proper parties to bring the suit, thus focusing on the qualitative sufficiency of

the injury and whether the complainant has personally suffered the harm. . . . When

determining ripeness, a court asks whether this is the correct time for the complainant

to bring the action.” Id. at 390 (citations omitted).

The ripeness inquiry is designed “to prevent the courts, through avoidance of

premature adjudication, from entangling themselves in abstract disagreements over

administrative policies, and also to protect the agencies from judicial interference

until an administrative decision has been formalized and its effects felt in a concrete

way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–49

(1967). To decide whether an issue is ripe for judicial review, courts will examine

both the fitness of the issue for judicial decision and the hardship on the parties if a

court withholds consideration. Id. at 149.

That explanation is straightforward enough for a general ripeness inquiry, but

NEPA adds an important twist. In a NEPA suit, the issue presented for review

typically is whether the agency has complied with the statute’s particular procedures.

Because of the rather special nature of the injury (that is, the failure to follow NEPA),

the issue is ripe at the time the agency fails to comply. “Hence a person with standing

19
who is injured by a failure to comply with the NEPA procedure may complain of that

failure at the time the failure takes place, for the claim can never get riper.” Ohio

Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998). As we see it, that is

the end of the proper ripeness analysis in a NEPA suit.

The district court recognized the special nature of the NEPA injury but went

on to note that:

The [Supreme] Court may have been referring only to a failure to
prepare an environmental impact statement (or environmental
assessment). On the other hand, the Court may have been referring to
other, broader NEPA claims such as the claimed failure of the
environmental impact statement to take a “hard look” at the
environmental consequences of an issue before deciding it. This latter
type of challenge is close to being substantive; the former are not.

Chattooga Conservancy, 373 F. Supp. at 1370–71. The district court then concluded

that, since Ouachita’s NEPA claim is “as much substantive as it is procedural in

nature,” it is not ripe. Id. at 1371. The district court’s point, we think, is that

reviewing a NEPA claim requires it to look at the facts and, on some level, the

substance of what took place in the agency proceedings. That may be true, but

expanding that reasoning to conclude that NEPA is therefore “close to being

substantive” ultimately confuses the issue.

The courts have been very clear that NEPA imposes a procedural duty upon

20
the agencies to take a hard look at the environmental consequences of their actions.

Ohio Forestry Ass’n, 523 U.S. at (1998) (noting that NEPA “simply guarantees a

particular procedure, not a particular result”); Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350 (1989) (“[I]t is well settled that NEPA itself does not

impose substantive duties mandating particular results, but simply prescribes the

necessary process for preventing uninformed—rather than unwise—agency action.”);

Fund for Animals v. Rice, 85 F.3d 535, 546 (11th Cir. 1996). When an agency fails

to satisfy that procedural duty, a plaintiff’s claim is ripe for review. We recognize

the difficulty of reviewing the technical, nuanced agency action in this case. But the

injury alleged is a proper (and therefore ripe) NEPA injury.

3. MOOTNESS

The final justiciability issue before us is the Forest Service’s claim that

Ouachita’s challenge to Amendment 31 (which made the acquisition of PETS data

more clearly a matter of Forest Service discretion) is moot. A case is moot when the

issues no longer involve a live controversy with respect to which the court can give

meaningful relief. Al Najjar v. Ashcroft, 273 F.3d 1330, 1335–36 (11th Cir. 2001).

“[T]he party asserting mootness bears ‘the heavy burden of persuading the court that

21
the challenged conduct cannot reasonably be expected to start up again.’” Wilderness

Watch & Pub. Employees for Envtl. Responsibility v. Mainella, 375 F.3d 1085, 1090

n.6 (11th Cir. 2004) (citing Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222

(2000)).

The crux of the Forest Service’s mootness argument is that it has amended each

of the forest plans at issue to remove the provisions that Ouachita claims were

enacted in violation of NEPA. This argument, however, is little more than an

assertion that the challenged provisions no longer exist and that no work is being

done under them. Ouachita points out that a number of Forest Service projects

approved under those provisions are still pending and lists the projects. (Appellant’s

Reply Br., Decl. of Jerry Williams ¶ 8.) It is difficult to ascertain the status of these

projects on the evidence presented; we simply do not know whether the Forest

Service is correct that these provisions no longer affect anything or whether Ouachita

is correct that, although the provisions have been superseded, they still govern a

number of projects. Since the tie goes to the runner in the mootness inquiry and we

cannot ascertain whether the provisions have any effect, we must conclude that the

Forest Service has failed to carry its heavy burden to establish that Ouachita’s claims

are moot. With that, we conclude our consideration of the threshold justiciability

issues in this case.

22
 B. Amendment 31’s NEPA Compliance

The only substantive issue that the Forest Service addressed on appeal was

whether the Forest Service complied with NEPA in promulgating Amendment 31.8

The Forest Service adopted Amendment 31 to the Ouachita National Forest Plan in

2000. Ouachita’s primary argument is that Amendment 31 is arbitrary and capricious

because the Forest Service failed to prepare an environmental impact statement before

enacting the amendment, and conflicts with the VMEISs (which it failed to consider),

especially their mitigation measures.9 The district court concluded that Amendment

31 did not significantly alter the Forest Service’s obligation to protect PETS species

in the Ouachita National Forest.

The most difficult aspect of this issue is determining how it fits with Sierra

Club v. Martin. 168 F.3d 1. In Martin, we concluded that the Forest Service was not

following its own PETS-monitoring directives; it collected no population inventory

information pertaining to certain PETS species despite language in the Forest Plans

8
The text of Amendment 31 is repeated supra note 4.
9
NEPA requires that all federal agencies, including the Forest Service, comply with
mitigation measures. 40 C.F.R. § 1505.3. See also Heartwood, Inc. v. U.S. Forest Serv., 230
F.3d 947, 949 (7th Cir. 2000).

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clearly requiring it to do so. 168 F.3d at 4. After Martin, the Forest Service

attempted to “clarify” its directives with a variety of amendments, including

Amendment 31. The district court reasoned that the holding of Martin was limited

to the fact that the Forest Service had collected no population inventory data, which

clearly violated the Forest Plans. Chattooga Conservancy, 373 F. Supp. 2d at 1373.

The district court further reasoned that the word “inventory” permitted “a

measurement based on some type of estimating procedure.” Id. at 1374. The district

court then concluded that since the Forest Service was only adapting its directives to

fit its activities, there was no environmental impact to consider. Id.

This interpretation unduly limits Martin. While the district court was correct

to note that we took particular issue with the Forest Service’s complete lack of data

on PETS species, we also specifically noted that, at a more basic level, the forest

plans required the Forest Service to keep inventory data on sensitive species. Martin,

168 F.3d at 4. The Forest Service, we concluded, was obliged to consider actual

population data, not habitat data. Id. at 3–4. Because the district court analyzed

Amendment 31 under an overly narrow view of Martin, the analysis is incomplete.

We therefore remand the substantive analysis of Amendment 31, so that the district

court may consider whether the Forest Service complied with NEPA in enacting that

amendment in light of this broader reading of Martin.

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 III. CONCLUSION

Accordingly, the judgment of the district court is REVERSED and the case is

REMANDED for proceedings consistent with this opinion.10

10
We acknowledge Ouachita’s argument that we should decide this case on the merits at
this point in the litigation. As we have explained, however, the district court dismissed
Ouachita’s claims on ripeness grounds and therefore did not reach the underlying substantive
issues. Given the complexity of the facts, we decline to resolve the case on the merits on appeal.
We finally note Ouachita’s argument that the Forest Service submitted an inadequate
administrative record. Since we reverse and remand this entire proceeding, we do not reach the
issue but instead underscore it for the district court.

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