In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1230

HEARTWOOD, INC., et al.,

Plaintiffs-Appellants,

v.

United States Forest Service, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98 C 4289--J. Phil Gilbert, Judge.


Argued June 6, 2000--Decided October 18, 2000



  Before Bauer, Manion, and Williams, Circuit Judges.

  Williams, Circuit Judge. Heartwood, Inc., Jim
Bensman, and Mark Donham (collectively,
"Plaintiffs") challenge the district court’s
grant of summary judgment in favor of Defendants,
the United States Forest Service and Mike
Dombeck, Chief of the Forest Service, as to Count
II of their complaint. In Count II, Heartwood
alleged that when the Forest Service ("Service")
adopted a rule excluding certain classes of
Service action from procedural safeguards
designed to determine the environmental impact of
those actions, it violated the National
Environmental Policy Act ("NEPA"), 42 U.S.C. sec.
4321, et seq., and the Administrative Procedures
Act ("APA"), 5 U.S.C. sec. 706. Plaintiffs
maintain that the Service violated certain
Council on Environmental Quality ("CEQ")
regulations, by: (1) not conducting an
environmental assessment ("EA") and issuing a
finding of no significant environmental impact or
seeking an environmental impact statement
("EIS"); (2) failing to address or consider
extraordinary circumstances before issuing the
categorical exclusions ("CEs"); and (3) utilizing
a case-by-case CE procedure. The district court
concluded that the Service did not need to
prepare an EA or an EIS before adopting the rule
on categorical exclusions and granted the
Service’s motion for summary judgment on that
claim. Heartwood now appeals, and, because
neither NEPA nor the APA requires the Service to
perform an EA or an EIS before promulgating its
procedures for creating CEs, we affirm the
judgment of the district court.

I

  Plaintiffs mount a facial challenge to certain
categorical exclusions ("CEs") that have been
promulgated by the United States Forest Service,
pursuant to the National Environmental Policy Act
("NEPA"), 42 U.S.C. sec. 4321 et seq., as well as
the Administrative Procedures Act, 5 U.S.C. sec.
706./1 NEPA was enacted to regulate government
activity that significantly impacts the
environment and "to help public officials make
decisions that are based on an understanding of
environmental consequences, and take actions that
protect, restore, and enhance the environment."
40 C.F.R. sec. 1500.1(c). As such, NEPA is the
"basic national charter for protection of the
environment." Id.

  The Council on Environmental Quality ("CEQ")
administers NEPA and promulgates regulations
related to NEPA that are binding on federal
agencies. See 42 U.S.C. sec.sec. 4342, 4344(3);
40 C.F.R. sec.sec. 1501-08. Every federal agency
then drafts its own administrative regulations to
implement and supplement the CEQ regulations. See
40 C.F.R. sec. 1507.3.

  To effectuate the goals of NEPA, the CEQ
created rules requiring agencies to establish
implementing procedures that facilitate the
evaluation of management decisions and the
environmental effects of proposed federal agency
actions. Under these guidelines, an agency must
identify those actions which normally require an
environmental impact statement, or "EIS." See 40
C.F.R. sec. 1501.4(a)(1). An EIS is required for
"major federal actions significantly affecting
the quality of the environment." 40 C.F.R. sec.
1508.9. The report itself is a detailed analysis
and study conducted to determine if, or the
extent to which, a particular agency action will
impact the environment.

  In order to determine whether a particular
proposed action requires the preparation of an
EIS, agencies perform an environmental assessment
("EA"). An EA is a public document (shorter than
an EIS) that contains information pertaining to
the need for the proposed action, other
alternatives, the environmental impact of the
proposal and its alternatives, and other relevant
information. An agency may prepare an EA for one
of several reasons: (1) to provide evidence and
analysis that establish whether or not an EIS or
a Finding of No Significant Impact ("FONSI")
should be prepared; (2) to help the agency comply
with NEPA when no EIS is necessary; and (3) to
facilitate preparation of an EIS when one is
necessary. See 40 C.F.R. sec. 1508.9(a).

  When an agency identifies certain actions that
do not have any significant effect on the
environment, the agency may classify those
actions as categorical exclusions or CEs. Under
NEPA and CEQ regulations, if an action falls
within a particular categorical exclusion, the
agency need prepare neither an EIS nor an EA. The
CEQ requires federal agencies to design
procedures for establishing CEs. Specifically, a
CE is

a category of actions which do not individually
or cumulatively have a significant effect on the
human environment and which have been found to
have no such effect in procedures adopted by a
Federal agency in implementation of these
regulations (sec. 1507.3) and for which,
therefore, neither an environmental assessment
nor an environmental impact statement is
required. An agency may decide to prepare
environmental assessments for the reasons stated
in sec. 1508.9 even though it is not required to
do so. Any procedures under this section shall
provide for extraordinary circumstances in which
a normally excluded action may have a significant
environmental effect.

40 C.F.R. sec. 1508.4.

  At issue are a set of new policies and
procedures established to replace those
originally published in the Federal Register in
June 1985 (50 Fed. Reg. 26078). Specifically,
Plaintiffs are concerned about the impact of a
set of CEs for timber harvests on Service land.
When the Service adopted the new policy and
procedures that set forth the challenged CEs, it
published a notice which read:

Based on experience and environmental analysis,
the implementation of the revised Forest Service
environmental policy and procedures will not
significantly affect the quality of the human
environment, individually or cumulatively.
Therefore, this action is categorically excluded
from documentation in an environmental impact
statement or an environmental assessment.

The Service gave notice on April 29, 1991 that it
was adopting revised policies and procedures for
implementing NEPA and CEQ regulations and set
forth its proposal for those new policies and
procedures. The Service did not produce a formal
document in the form of an EA or an EIS prior to
publishing the notice. After the Service made the
proposed new policies and procedures available
for public comment, Plaintiff Bensman raised his
concerns in a comment submitted on June 25, 1991.
Plaintiff Dobham presented his comments one day
later. In a notice published on September 18,
1992, the Service announced that it had adopted
the new policies and procedures that would become
effective September 21, 1992. Afterwards,
Plaintiff Donham made a Freedom of Information
Act ("FOIA") request seeking correspondence
between the Service and the CEQ about the process
that led to the new policies and procedures and
later requested records regarding the Service
promulgation of the challenged NEPA rules. None
of the documents sent to Donham was
correspondence between the CEQ and Service
concerning the challenged rulemaking process.

  Plaintiffs’ complaint contained three separate
counts./2 On appeal, Plaintiffs challenge only
the district court’s ruling on Count II. In
short, Plaintiffs maintain that, in adopting its
procedures for identifying CEs, the Service
violated NEPA and the APA, as well as other CEQ
and Department of Agriculture regulations./3
They claim that the Service, (1) failed to
conduct an EA on the proposed CE procedures and
instead issued a finding of no significant impact
("FONSI") for the CE procedures (or
alternatively, failed to conduct a more extensive
EIS once it was known that a FONSI was not
appropriate); (2) failed to address or consider
extraordinary circumstances before issuing the
CEs; and (3) utilized a "case-by-case" CE
procedure in part in an attempt to avoid NEPA
requirements. On a motion for summary judgment,
the district court ruled in favor of the Service
on Count II./4

II
A. Justiciability

  As always, before the court may consider the
merits of a case, we must determine whether
Plaintiffs’ have presented a justiciable claim.
The Service insists that since Plaintiffs have
challenged Service plans rather than a specific
action that definitively affects a particular
forest area, this challenge raises a question as
to both standing and ripeness.


  1. Standing

  The Service maintains that Plaintiffs have
failed to establish that they suffered a
cognizable injury. Under Article III of the
Constitution, before a plaintiff may seek redress
in court, he or she must have standing. See U.S.
Const. art. III. To have standing, Plaintiffs
must show three things: (1) injury in fact (the
actual or imminent invasion of a concrete and
particularized interest), (2) causation (a causal
connection between the defendant’s actions and
the injury), and (3) redressability (the
likelihood that the injury is redressable by a
favorable court decision). See Steel Co. v.
Citizens for Better Env’t, 523 U.S. 83, 103-04
(1998); Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). Siding with Heartwood, the
district court held that plaintiffs had standing
and wrote:

[B]ecause they do allege that they use and enjoy
the Service lands upon which their claims are
based, both in the Southern District of Illinois
and elsewhere throughout the United States,
Service decisions here ’will diminish this use
and enjoyment.’ This potential harm would result
directly from the Service’s lack of compliance
with NEPA and federal regulations, so that the
harms would be ’causally connected’ to the
defendants’ actions.

  The Supreme Court recently held that
"environmental plaintiffs adequately allege
injury in fact when they aver that they use the
affected area and are persons ’for whom the
aesthetic and recreational values of the area
will be lessened’ by the challenged activity."
Friends of the Earth v. Laidlaw Evtl. Servs., 120
S.Ct. 693, 705 (2000) (citations omitted). Faced
with a question similar to the one posed here, in
Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir.
1998), we held that the plaintiffs had standing.
In Rhodes, the court permitted plaintiffs to
challenge the categorical exclusion of controlled
burn and shrub removal in a local forest
preserve. "[P]laintiffs do have standing because
they allege that they use Burke Branch, that the
defendant’s decision will diminish this use and
enjoyment, and that the defendant’s failure to
permit them to participate in the public review
of the decision is causally connected to their
harm. This is enough to show Article III
standing." Rhodes, 153 F.3d at 787.

  The Service makes no attempt to distinguish the
instant case from Rhodes, and with good reason.
The facts in Rhodes are similar to those in this
case. The Rhodes plaintiffs challenged a forest
ranger’s authority to burn and remove shrubs
without conducting an EA. In his defense, the
forest ranger relied on the fact that the
controlled burn and shrub removal were
categorical exclusions under the Service’s
implementing procedures. Rhodes, 153 F.3d at 786.
Here, Plaintiffs challenge the Service’s
establishment of CEs without performing an EA on
the overall effect of the rules. While there may
be a subtle distinction between the claims in the
two cases (Rhodes, categorical exclusion of rules
on burning shrubs compared with Heartwood,
categorical exclusion of rules setting forth
categorical exclusions), we do not think it is a
significant one.

  The Service also suggests that Plaintiffs’
claims implicate a procedural right only. Lujan
v. Defenders of Wildlife, 504 U.S. at 571-72,
makes clear that assertion of a procedural right,
unconnected to a plaintiff’s concrete harm, is
not enough to convey standing. Here, Plaintiffs
assert that the Service deprived them of the
opportunity to participate in the process of
establishing the rules for creating categorical
exclusions. However, Lujan also says that "[t]he
person who has been accorded a procedural right
to protect his concrete interests can assert that
right without meeting all the normal standards
for redressability and immediacy." Lujan, 504
U.S. at 573 n.7. Still, the Service insists that
Plaintiffs’ failure to specify the when, where,
and how of its injury should be fatal. We believe
that Plaintiffs have sufficiently alleged that
they would use and enjoy Service lands that they
believe would be affected by the challenged
policy decisions.

  Under Rhodes, where the Service fails "to
permit [plaintiffs] to participate in the public
review of the decision" to establish a
categorical exclusion and forego performance of
an EA, and this decision affects plaintiffs’
ability to use and enjoy Service land, this is
enough to show Article III standing. Plaintiffs
allege more than just a procedural injury here.
They claim that their use of certain national
forests and other areas was harmed by the
enactment of several categorical exclusions and
that if an EA or EIS had been performed, the
Service could have made that known and
Plaintiffs’ harm would have been lessened or
avoided. Plaintiffs present detailed information
as to how their interests are affected by the
categorical exclusion rule in various
declarations from Heartwood members./5 As such,
we conclude that Plaintiffs have standing.


  2. Ripeness

  The Service maintains that "only when a
specific project is authorized at a specific
National Forest pursuant to a categorical
exclusion will a challenge to that categorical
exclusion be ripe for judicial resolution." In
support of this argument, the Service relies upon
the Supreme Court’s decision in Ohio Forestry
Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998).
In that case, after reviewing whether, (1)
delayed review of an agency decision would cause
hardship to plaintiffs; (2) judicial intervention
would inappropriately interfere with further
administrative action; and (3) the courts would
benefit from further factual development of the
issues presented, the court held that the
plaintiff’s claims were not ripe. Id., 523 U.S.
at 733 (involving a challenge to a plan to permit
logging in certain forests, but not the cutting
of any trees). Yet, in the same case, the Court
distinguished suits brought pursuant to NEPA and
made clear that "a person with standing who is
injured by a failure to comply with a NEPA
procedure may complain of that failure at the
time the failure takes place, for the claim can
never get riper." Id. at 737.

  Plaintiffs allege that under Defendant’s theory
of ripeness, the Service’s failure to produce an
EA or an EIS before establishing the rules
creating new CEs means that they will be unable
to challenge Service activity in areas they use
and enjoy. In an extended discussion of standing
and ripeness, this court has held that "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." Sierra Club v. Marita, 46 F.3d 606,
612 (7th Cir. 1995) (plaintiff appealed issuance
of final management plan which would direct
Service activities in particular areas). "Once
the plan has passed administrative review, the
procedural injury has been inflicted. Unless a
plaintiff’s purported interest in the matter is
wholly speculative, waiting any longer to address
that injury makes little sense." Id. Very much
like the plaintiffs in Marita, Plaintiffs in this
case "need not wait to challenge a specific
project when their grievance is with an overall
plan." Marita, 46 F.3d at 614. Having found that
Plaintiffs’ claim is justiciable, we will proceed
to the merits.

B. Merits

  Plaintiffs maintain that the Service violated
NEPA by failing to prepare an EA to analyze the
effects of its CE rules. In response, the Service
contends that when it established the CE rules,
it was adopting an agency procedure, not
instituting a "federal action" to which NEPA’s EA
and EIS regulations apply. The Service argues it
did all that it was required to do, in that it
complied with the CEQ’s NEPA regulations by
consulting with the CEQ during development of the
CEs and by obtaining proper CEQ review. The
Service maintains that NEPA did not require it to
conduct an EA or an EIS when creating procedures
for the identification of CEs. The question then
is whether the promulgation of CE rules, in this
instance, can be considered a major federal
action of the type listed under sec. 4332(2)(C).

  The district court agreed with the Service and
rejected Plaintiffs’ argument calling for an EA
on the impact of the proposed categorical
exclusion rules. The court noted, "[t]he adoption
of a list of categories is not implementation of
a specific policy or statutory program, nor a
plan for action in any sense of the phrase. . .
. To propose that such a document be prepared for
types (categories) of actions that do not concern
a specific proposed action in a specific location
seems beyond the Court’s comprehension." The
court also found that an EA or EIS would have
been meaningless. Since such an EA would have
come prior to the adoption of the individual
categorical exclusions, the Service could not
have provided an accurate analysis of the
potential environmental consequences posed by the
exclusion of the different CEs.

  APA, 5 U.S.C. sec. 706 governs our review of
the Service’s actions. Under this provision, when
reviewing the actions of an administrative
agency, we must determine whether an agency
action is, (1) arbitrary and capricious; (2) an
abuse of discretion; or (3) otherwise not in
accordance with the law. We may not substitute
the court’s judgment for that of the agency. See
FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775, 802 (1978).
Additionally, when reviewing an agency’s
interpretation of its own implementing
procedures, the court should give substantial
deference to that agency’s interpretation. See
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994); Rhodes v. Johnson, 153 F.3d at 789.
The Supreme Court has held that ultimately, the
standard of review when examining an agency’s
decision under NEPA is a narrow one. See Marsh v.
Oregon Nat’l Resources Council, 490 U.S. 360, 378
(1989).

  We find that the district court did not err in
reaching the conclusion that the Service had not
violated NEPA or the APA. The Service action
creating CEs looks more like an implementing
procedure than a federal action of the type
contemplated in 42 U.S.C. sec. 4332(2)(C). The
CEQ defines "major Federal action" as "actions
with effects that may be major and which are
potentially subject to Federal control and
responsibility. . . . Actions include new and
continuing activities . . . new or revised agency
rules, regulations, plans, policies or
procedures; and legislative proposals." 40 C.F.R.
sec. 1508.18. The regulation then lists several
categories of Major Federal action, including
"Adoption of official policy, such as rules and
regulations, and interpretations adopted pursuant
to the APA, 5 U.S.C. sec. 551, et seq." Id.

  Plaintiffs believe that the promulgation of the
CE rules falls into one of the categories listed
in 40 C.F.R. sec. 1508.18. It does not. The
creation of new CEs is an agency procedure. The
CEs are not proposed actions, they are categories
of actions for which an EA or EIS has been deemed
unnecessary. The CEQ promulgated a rule requiring
agencies to establish "agency procedures" that
include "specific criteria for and identification
of those typical classes of action . . . which
normally do not require either an environmental
impact statement or an environmental assessment,"
in other words, procedures to establish CEs. 40
C.F.R. sec. 1507.3. The regulations simply define
a CE as a category of actions found to have no
significant effect on the environment "in
procedures adopted by a Federal agency in
implementation of these regulations." 40 C.F.R.
sec. 1508.4. For these procedures, the CEQ does
not mandate that agencies conduct an EA before
classifying an action as a CE and we must give
great deference to the CEQ’s interpretation of
its own regulations. Andus v. Sierra Club, 442
U.S. 347, 358 (1979).

  Additionally, categorical exclusions, by
definition, do not have a significant effect on
the quality of the human environment./6 The
Service and other agencies are authorized under
NEPA to create their own procedures and to
utilize CEs in order to make a threshold
determination as to which actions normally have
a significant effect on the environment. The
Service provided the following statement in its
notice adopting the new policy and procedure for
categorical exclusions:

Based on experience and environmental analysis,
the implementation of the revised Forest Service
environmental policy and procedures will not
significantly affect the quality of the human
environment, individually or cumulatively.
Therefore, this action is categorically excluded
from documentation in an environmental impact
statement or an environmental assessment.

57 Fed. Reg. 43,180 (Sept. 18, 1992) (emphasis
added). The language of this statement does not
indicate that by enacting this rule, the Service
would be authorizing any activity or committing
any resources to a project that might impact the
environment. Yet, Plaintiffs seem to suggest that
conducting an EA is the only way to determine
whether or not the revised policy and procedures
will significantly affect the quality of the
environment. We have found nothing in the
statute, the regulations or the case law to
substantiate this claim./7 Congress has
empowered the CEQ to review an agency’s
procedures for identifying classes of activity
that will be categorically excluded from EA and
EIS requirements. The CEQ apparently considered
the Service’s rules for identifying CEs as
procedures and not the type of federal action
that triggers the requirements of sec.
4332(2)(C). Plaintiffs have not presented any
evidence or made us aware of any law to suggest
that we should question the CEQ’s judgment.

  Plaintiffs make a number of other arguments,
many of which simply confuse the issues involved.
Much of the confusion is due to the fact that
Plaintiffs misconstrue the Service’s position.
The Service does not argue that NEPA does not
apply to CEs, only that under NEPA and the
regulations interpreting NEPA, its decision to
issue the CE rules without doing an EA was
proper. Many of the cases Plaintiffs cite in
support of their argument are inapposite. The
plaintiffs in those cases challenge an agency’s
decision not to conduct an EA for a specific
project or agency proposal that the agency deemed
to fall within a particular CE. That is not the
issue presented here. Here, Plaintiffs challenge
the Service’s creation of the categories in and
of themselves without preparing an EA. While the
Service could have prepared an EA to try and
gauge the impact specific CEs might have, it was
not required to do so. As such, in deciding
against using its resources to conduct a formal
EA before promulgating the new CEs, the Service
did not violate NEPA or the APA, nor did it abuse
its discretion or act arbitrarily or
capriciously.

III

  Having found that neither NEPA nor CEQ
regulations required the Service to conduct an EA
or an EIS prior to the promulgation of its
procedures creating categorical exclusions, we
AFFIRM the judgment of the district court.



/1 Plaintiff Heartwood, Inc. is a not-for-profit
corporation which operates as a coalition of
environmental organizations. Plaintiff Mark
Donham owns land and lives adjacent to the
Shawnee National Forest and Plaintiff Jim Bensman
uses the national forests.

/2 In Count I of their complaint, plaintiffs assert
that the Service violated C.F.R. sec. 1507.3, by
failing to obtain the necessary review by the CEQ
prior to adopting the challenged CEs. In Count
III, Plaintiffs challenge the timber harvest CE,
see FSH 1909.15, Ch. 20, sec. 31.2(4); 57 Fed.
Reg. at 43, 209, and argue that the defendants
violated NEPA and CEQ regulations by failing to
study the environmental consequences of the CE,
to consider and to respond to public comments
prior to the CEs adoption. See 40 C.F.R. sec.
1508.4.

/3 The Forest Service is a subunit of the Department
of Agriculture. The Department of Agriculture
adopted environmental regulations to fulfill its
NEPA obligations and the Forest Service compiles
its rules and procedures in the Forest Service
Environmental Handbook. It is the Service
Environmental Handbook which contains the
challenged CEs.

/4 The district court also granted defendant’s
motion for summary judgment on Count I, but
denied their motion on Count III. Judgment was
entered in favor of the plaintiffs on Count III.

/5 We find Heartwood’s argument as to
"informational" injury compelling as well. NEPA
requires agencies to conduct EA’s in order to
provide stakeholders with information necessary
to monitor agency activity. Without an EA,
interested parties have no way to comment on or
to appeal decisions made by an agency. The Court
has found a cognizable injury-in-fact for
plaintiffs who are deprived of this information.
Federal Election Commission v. Akins, 524 U.S.
11, 21-25 (1998).

/6 As noted above, 40 C.F.R. sec. 1508.4 defines
categorical exclusion as "a category of actions
which do not individually or cumulatively have a
significant effect on the human environment and
which have been found to have no such effect in
procedures adopted by a Federal agency in
implementation of these regulations and for
which, therefore, neither an environmental
assessment nor an environmental impact statement
is required."

/7 40 C.F.R. sec. 1507.3 reads in part,
when the agency is a department, major subunits
are encouraged (with the consent of the
department) to adopt their own procedures. Such
procedures shall not paraphrase these
regulations. They shall confine themselves to
implementing procedures. Each agency shall
consult with the CEQ while developing its
procedures and before publishing them in the
Federal Register for comment . . . . The
procedures shall be adopted only after an
opportunity for public review and after review by
the [CEQ] for conformity with the Act and these
regulations.
