Summary of a Recent
Judicial Development in
Environmental Law

Compliance with NEPA in Formulating Environmental
Impact Statement and Assessing Data

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Sierra Club v. Kimbell, 595 F. Supp. 2d 1021, 2009 WL 250011 (D. Minn. 2009), the United States District Court for the District of Minnesota held that the Forest Service had not acted in violation of the National Environmental Policy Act (NEPA) in revising its forest plan for a national forest, and found that its methodology for assessing and inventorying data within the forest was neither arbitrary nor without foundation, and therefore granted the Forest Service's motion for summary judgment.

Background

The Sierra Club brought this action against the U.S. Forest Service, claiming that it violated NEPA, 42 U.S.C. §§ 4321-4370f, in revising the forest plan for the Superior National Forest. Id. at *1.

Arguments

The Sierra Club argued that the Final Environmental Impact Statement (FEIS) for the forest plan did not adequately consider the effects of the plan on the Boundary Waters Canoe Area Wilderness (BWCAW) of the Superior National Forest, and that the FEIS was "based on seriously flawed data about the roads and trails within the Superior National Forest." Id. at *2. More specifically, it argued that the Forest Service "inadequately disclosed its methodology with respect to the roads-and-trails data." Id.

The Forest Service argued that its FEIS adequately considered the effects of the forest plan on the BWCAW; more specifically, it claimed that because the forest plan was a "programmatic document that does not authorize site-specific activities, the FEIS for the plan was not required to assess the plan's effects on the BWCAW in detail," and that such effects would be given detailed consideration in future statements issued in connection with site-specific actions. Id. at *5. It also argued that the Sierra Club had waived its "roads-and-trails" argument because it had not raised the issue during the public comment period. Id. at *7.

Analysis and Holdings

The court explained that NEPA requires an agency to take a "hard look" at the environmental consequences before taking a major action. Id. at *3. Although it did not discuss in detail any site-specific actions, the court noted that the FEIS for the forest plan "clearly set forth a policy that the Forest Service's management of the Superior National Forest as a whole is intended to be neutral with respect to the BWCAW." Id. at *6. The court pointed out that "the FEIS itself recognizes that further site-specific analysis may be necessary to ensure that the BWCAW is not harmed by particular activities." Id. The court concluded that "the FEIS, taken as a whole and given the programmatic nature of the forest plan, adequately considers how the BWCAW would be affected by the different management approaches under consideration," and therefore held that the Forest Service had not acted arbitrarily or capriciously. Id. at *7.

Turning to the Sierra Club's other claim regarding flawed data in the FEIS, the court first rejected the Forest Service's defense that the claim was untimely because it had not been made during the public comments period. Id. at *8-9. Under 36 C.F.R. § 215.11(a)-(b) and § 215.13(e), "only parties who have submitted comments may file appeals with respect to site-specific actions." Id. at *9. However, under 36 C.F.R. § 217.6(a), "any person" may file an appeal with respect to a forest plan under § 217.6, not just persons who had previously submitted comments. Id. After examining the administrative record, the court concluded that although some of its data was incorrect, "the Forest Service's methodology for assessing and inventorying the roads and trails within the Superior National Forest was neither arbitrary nor without foundation." Id. at *14. The court therefore granted the Forest Service's motion for summary judgment. Id. at *16.

The case was decided on January 20, 2009.