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Rhodes v. Johnson

ELR Citation: 29 ELR 20092
Nos. 97-3687, 153 F.3d 785/(7th Cir., 08/27/1998)

The court holds that the presence of extraordinary circumstances requires the U.S. Forest Service to conduct an environmental assessment (EA) before burning and removing shrubs from portions of the Shawnee National Forest in Illinois even though these activities fall under categorical exclusions for which an EA would not normally be needed. The court first holds that citizens challenging the proposed agency action have standing. They allege that they use the portion of the forest at issue, that the Forest Service's decision will diminish their use and enjoyment, and that the Forest Service's failure to permit them to participate in the public review of the decision is causally connected to their harm. The court then notes that the parties agree that the controlled burns and shrub removal are categorical exclusions, but that there are also present at least two extraordinary circumstances that may have a significant environmental effect because the forest is the home of the endangered Indiana bat and is a research natural area. Next, the court holds that the presence of an extraordinary circumstance requires the Forest Service to prepare an EA. The regulations unambiguously set out two possible paths when a categorical exclusion applies: either the proposed action has no extraordinary circumstances and so no further analysis is required, or it has extraordinary circumstances in which case an EA is required. Contrary to the Forest Service's position, internal review that serves the same purpose as, and so replaces, an EA is not a third option. Therefore, the Forest Service's decision to conduct controlled burns or shrub removal in the forest without first preparing an EA was unlawful and must be set aside.

Counsel for Plaintiffs
Steven M. Siros
Jenner & Block
One IBM Plaza, Chicago IL 60611
(312) 222-9350

Counsel for Defendant
Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Kanne and Wood, JJ.