ELR Citation: ELR 20514
No(s). s. 94-1736, -1827 (7th Cir. Jan 20, 1995)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), or regulations thereunder when it approved the land and resource management plans and the final environmental impact statements (EISs) for the Nicolet and Chequamegon National Forests in Wisconsin without incorporating certain principles of conservation biology into the diversity analyses for the plans. The court first holds that plaintiff environmental group has standing. The group's interest in the use and enjoyment of the Chequamegon and Nicolet National Forests is concrete and legally cognizable, and the group may maintain standing on behalf of its members. It is also uncontested that the Forest Service's actions could harm the group's interest and that this injury is likely redressable through court action. The court rejects the Forest Service's contention that because the forest plans and final EISs are programmatic and do not themselves implement anything or specify that any particular activity happen, there is no imminent injury. The regulations regarding forest plans speak in mandatory terms and the plans clearly require that certain projects be undertaken and indicate what their effects may be. Further, under U.S. Supreme Court precedent applying NEPA, a plaintiff clearly has standing to sue where there is a concrete injury underlying the procedural default even if the plan is not implemented immediately. And once a plan has passed administrative review, the procedural injury has been inflicted. If the group had to wait until the project level to address general procedural injuries regarding a broad issue like biological diversity, implementation of the forest plan might have progressed too far to permit proper redress. The court also recognizes that waiting until an actual timber sale occurs under the plans will not clarify the presentation of issues, and that arguments over the plans' sufficiency as a whole or the procedures the Forest Service followed with regard to diversity in developing the plans are as concrete now as they will ever become. The court holds that the group's claim is ripe because the Forest Service has issued final management plans that are appealable.

The court next addresses the group's claims that the Forest Service violated the NFMA and NEPA by using scientifically unsupported techniques to address diversity concerns in its plans and by arbitrarily disregarding certain principles of conservation biology in developing those plans. The court holds that the Forest Service met all legal requirements in addressing the concerns the group raises. The court holds that the NFMA, NEPA, and regulations thereunder do not require the Forest Service to apply an ecological approach to forest management. The drafters of the NFMA diversity regulations recognized that diversity was a complex term and declined to adopt any particular means or methodology for analyzing diversity. Thus, conservation biology is not a necessary element of diversity analysis. The court rejects the group's claim that the management indicator species (MIS) and population viability analyses do not gauge the diversity of ecological communities as required by the regulations. Except for those species to be monitored because they are specifically in danger, the Forest Service chooses species to be on an MIS list precisely because they will indicate the effects management practices are having on a broader ecological community. Although the NFMA does not permit the Forest Service to limit its choices to either enhancing diversity or protecting a particular species, such is not the case here. Thus, the court cannot conclude on the basis of the record before it that the Forest Service's methodology arbitrarily or capriciously neglected the diversity of ecological communities in the two forests. The court next holds that the NFMA diversity regulation at 36 C.F.R. §219.27(g) does not require the Forest Service to set aside large, unfragmented habitats to protect at least some old growth forest communities. The diversity regulations do not actually require the promotion of "natural forest" diversity, but rather the promotion of diversity at least as great as that found in a natural forest. The Forest Service considered the maintenance of some old growth forest, and to the extent that its final choice did not promote natural diversity above all else, the Forest Service acted well within its regulatory discretion.

The court next holds that the Forest Service met its responsibility under NEPA to use "high-quality" science in preparing EISs and evaluating diversity in them. The court holds that the Forest Service developed an appropriate method of analyzing diversity. Although the Forest Service did not employ conservation biology in its final analysis, it appropriately considered conservation biology and ultimately determined it to be uncertain in application. Based on the record and the agency's explanations, the court holds that the Forest Service acted rationally. The court refuses to apply the Supreme Court's test for admissibility of scientific expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 23 ELR 20979 (1993), to determine whether the court owes the Forest Service's scientific assertions any deference under NEPA. Forcing an agency to show that its theories are admissible as scientific evidence as a general rule is intrusive, not deferential, and not required.

The court next rejects the group's contention that the Forest Service's rejection of the group's "high-quality" science in preparing EISs and evaluating diversity in them. The court holds that the Forest Service developed an appropriate method of analyzing diversity. Although the Forest Service did not employ conservation biology in its final analysis, it appropriately considered conservation biology and ultimately determined it to be uncertain in application. Based on the record and the agency's explanations, the court holds that the Forest Service acted rationally. The court refuses to apply the Supreme Court's test for admissibility of scientific expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 23 ELR 20979 (1993), to determine whether the court owes the Forest Service's scientific assertions any deference under NEPA. Forcing an agency to show that its theories are admissible as scientific evidence as a general rule is intrusive, not deferential, and not required.

The court next rejects the group's contention that the Forest Service's rejection of the group's "high-quality" science argument on the basis of uncertainty in applying conservation biology principles was unscrupulous. Evidence suggests that the district court's understanding of scientific uncertainty was correct and that the Forest Service's explanation for not adopting conservation biology was principled. In looking at the conservation biology principle of island biogeography, the Forest Service noted that the principle developed as a result of research on actual islands or in the predominantly old growth forests of the Pacific Northwest and, therefore, does not necessarily lend itself to application in Wisconsin forests. Also, literature the group submitted to the Forest Service was not unequivocal in stipulating how to apply conservation biology principles in the Nicolet and Chequamegon National Forests. Thus, circumstances did not warrant setting aside a large portion of these forests to study island biogeography and related theories at the expense of other forest-plan objectives. The court therefore defers to the agency's method of measuring and maintaining diversity. The court next holds that the record shows that the Forest Service sufficiently complied with the NEPA regulation at 40 C.F.R. §1502.22 regarding scientific uncertainty. The agency looked at and disclosed the foreseeable environmental effects of the prposed alternatives and discussed them at length. That it did not adopt them is inconsequential. The court holds that to the extent §1502.22 mandates a discussion of conservation biology, the Forest Service more than adequately complied. The final EISs and records of decision for both forests generated the information and discussion that §1502.22 requires.

[The district court's decisions are published at 25 ELR 20029 and 25 ELR 20045.]

Counsel for Plaintiffs
Bonnie A. Wendorff
Boardman, Suhr, Curry & Field
One S. Pinckney St., Ste. 410, Madison WI 53701
(608) 257-9521

Counsel for Defendants
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before CUMMINGS, FLAUM, and RIPPLE, Circuit Judges.