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National Audubon Soc'y v. Hoffman

ELR Citation: 28 ELR 20318
Nos. 96-6037, -6049, 132 F.3d 7/(2d Cir., 12/22/1997)

The court holds that a U.S. Forest Service proposal for a logging project and road extension in the Green Mountain National Forest in Vermont violated the National Environmental Policy Act (NEPA), but not the National Forest Management Act (NFMA). The court first holds that neither the district court's receipt nor its denial of extra-record evidence constituted an abuse of discretion. Allowing the Forest Service to introduce additional explanations to explain its reasoning in the record but limiting the environmental groups' submissions to fill in the gap in the administrative record only with respect to a Forest Service mitigation measure was appropriate. In addition, the groups failed to make the required strong showing of bad faith that would allow receipt of extra-record evidence that the Forest Service acted in bad faith by improperly using its environmental assessment as a post hoc tool to justify a decision it had already made. The court next holds that the Forest Service violated NEPA by failing to consider adequately all relevant environmental factors of the logging project prior to making its finding of no significant impact. Absent substantial evidence to support the efficacy of the mitigation measure to prevent the disruption of black bear habitat, the Forest Service could not have adequately considered the significance of its proposed action's impact on the environment. Thus, the Forest Service failed to take a hard look at the possible effects of the proposed action. The court also holds that the Forest Service's determination that preparation of an environmental impact statement (EIS) was not necessary was arbitrary and capricious. If the Forest Service had taken a hard look at the context and intensity of its proposal, it necessarily would have decided to prepare an EIS.

However, the court further holds that the district court overstepped the narrow confines of judicial review of an agency decision when it jumped to the conclusion that the impact of the project would be arguably significant and, on that basis, ordered the agency to prepare an EIS. Because the question of whether the project may have significant adverse impacts is one that the Forest Service must decide, the appropriate remedy is to remand the case to the agency to correct the deficiencies in the record and in its analysis. The court rejects the groups' argument that remand to the agency may result in nothing more than a new rationalization for the same result rather than a hard look. NEPA is a procedural statute and an agency's substantive decisions are intended to be largely insulated from judicial review. Moreover, a remand in this case may improve the agency's decisionmaking process and encourage NEPA compliance in the long run by inducing the agency to make a better initial investigation with respect to the impact of a proposed action. Finally, the court holds that there is no indication that the Forest Service's proposal to extend a forest road is inconsistent with the forest plan or violates the NFMA.

Counsel for Plaintiffs
Stephen L. Saltonstall
Witten, Saltonstall, Woolmington, Bongartz & Campbell
P.O. Box 4600, Bennington VT 05201
(802) 442-6324

Counsel for Defendants
Helen M. Toor, Chief U.S. Attorney
U.S. Attorney's Office
11 Elmwood Ave., Burlington VT 05402
(802) 951-6725

Before Cardamone and Cabranes, JJ.