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Habitat Education Center v. U.S. Forest Service

June 29, 2010

HABITAT EDUCATION CENTER, ET AL., PLAINTIFFS-APPELLANTS,
v.
U.S. FOREST SERVICE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-C-0578-Lynn Adelman, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED FEBRUARY 26, 2010

Before FLAUM and WOOD, Circuit Judges, and ST. EVE, District Judge.*fn1

Habitat Education Center appeals from a grant of summary judgment to the United States Forest Service in a lawsuit challenging the environmental impact statement ("EIS") prepared by the agency in connection with a forest management project in the Chequamegon-Nicolet National Forest in northern Wisconsin. The project at issue is a timber sale known as the "Twentymile" project. In the district court, the plaintiffs made several challenges to the adequacy of the EIS. On appeal, they argue only that the EIS failed to describe the reasonably foreseeable cumulative effects of another proposed timber sale, known as the "Twin Ghost" project. We conclude that at the time the EIS was being prepared, the Twin Ghost project was too nebulous to be discussed in any meaningful way, and thus affirm the district court's grant of summary judgment to the Forest Service.

I. Background

The Chequamegon-Nicolet National Forest covers approximately 1.5 million acres in Northern Wisconsin. It consists of many lakes, rivers, and streams, is home to over 300 species of wildlife, and is visited by approximately 2.1 million people each year. The forest occupies land that was once clear-cut by nineteenth-century logging and forest fires. In the 1920s, the federal government began purchasing the land and managing it as a national forest. Because it emerged from the govern-ment's purchases of individual tracts of land, it is made up of a patchwork of public and private lands. In 1933, these were aggregated into two noncontiguous units. These came to be known as the Nicolet and Chequamegon units. Since 1993, these units have been managed as a single entity, now known as Chequamegon-Nicolet National Forest, although the two units remain noncontiguous. (The Nicolet unit is located in the eastern half of northern Wisconsin, and the Chequamegon unit is located in the western half of northern Wisconsin.)

Since 2002, the Forest Service has proposed seventeen timber projects covering an area of approximately 130,000 acres. These timber projects are designed to advance a number of forest management goals; in particular, they are intended to ensure a diversity of tree ages in the forest (most of the trees are the same age because they were planted in the 1920s and 1930s when the forest was being restored.) The plaintiffs in this litigation have been involved in challenges to most of these projects through the administrative environmental review process. The plaintiffs have appealed final agency actions to the district court in six cases, settled with the Forest Service in four cases, and have refrained from challenging four timber sale approvals.

On December 23, 2004, the Forest Service announced the proposed Twentymile timber sale. This proposed sale was located immediately to the northwest of a previous timber sale, the Cayuga sale. The proposed Twentymile project would involve logging and roadbuilding on 8,875 acres of public land near Clam Lake in Bayfield County, Wisconsin. During administrative review, the plaintiffs submitted extensive commentary and argued that the cumulative effects from the Twentymile and Cayuga projects would have a significant impact on wild-life habitat. In particular, plaintiffs argued that the Twentymile project would put the American Pine Marten at risk.*fn2

Over the plaintiffs' objections, the Forest Service released its final EIS and Record of Decision ("ROD") in February 2007, authorizing the Twentymile project to move forward largely as originally proposed. The plaintiffs brought an administrative appeal pursuant to Forest Service regulations. That appeal was denied on May 24, 2007.

On June 22, 2007, the plaintiffs filed a civil complaint challenging the Twentymile Final EIS and ROD in the Eastern District of Wisconsin. Among other claims, plaintiffs contended that the Forest Service had violated the National Environment Policy Act's ("NEPA") requirement to fully and fairly analyze the cumulative environ-mental impacts of all "past, present, and reasonably foreseeable future actions" across the forest.

After the parties had briefed cross-motions for summary judgment and shortly before the scheduled oral argument, the Forest Service announced another new timber sale, the Twin Ghost project, located immediately to the south of the Twentymile timber sale and to the southwest of the Cayuga timber sale. The Twin Ghost project is not mentioned in the Twentymile EIS or ROD. However, it was identified in internal Forest Service documents in the Twentymile administrative record as a project "in the timber pipeline." The district court ordered supplemental briefing on the Twin Ghost project.

In their supplemental brief, the Forest Service conceded that the Twin Ghost project falls within the Forest Service's designated cumulative effects area for the Twentymile project and that it did not consider the Twin Ghost project during the EIS process for the Twentymile project. However, the Forest Service argued that the project was not reasonably foreseeable and thus its omission from the EIS was not error.

As part of the supplemental briefing, the Forest Service submitted a detailed affidavit describing the history of the Twin Ghost project. Forest Service staff first began to "think about" what types of management activity might be needed in the Twin Ghost area in 2005. The first step was to identify the potential goals of a restoration project conducted at some point in the future. This meant collecting data about the existing state of the vegetation, wildlife, roads, and other resources in the Twin Ghost area. This process began in the spring and summer of 2005 and was completed in the fall of 2007. (Recall that the final Twentymile EIS and ROD were released in February 2007, Habitat's administrative appeal was denied in May 2007, and this suit was initiated on June 22, 2007.) In November 2007, the Forest Service identified a preliminary project boundary and an initial list of tree stands to consider for inclusion in the project. In January 2008, the Forest Service developed a list of goals for the Twin Ghost project. However, in February 2008, the Forest Service put planning for Twin Ghost on hold to focus on other priorities, and did not return its attention to Twin Ghost until October 2008, when it was added to the Forest Service's Schedule of Proposed Actions. In November 2008, Twin Ghost was disclosed to the public. As of the date of the district court's decision, the Forest Service continued to receive public comment about the proposal and no decision to implement the proposal had been made.

On January 12, 2009, the district court issued an opinion granting summary judgment to the Forest Service. Among other holdings not challenged here, the district court determined that the Twin Ghost timber sale was not "reasonably ...


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