Glisson v. United States Forest Service

No. 97-2840 (138 F.3d 1181) (7th Cir. March 13, 1998)

The court upholds the U.S. Forest Service's interpretation of the term "native" and its environmental assessment (EA) for an ecological project in Shawnee National Forest in Illinois. The appellants argued that the ecological project will have an adverse effect on shortleaf pines and pine warblers in violation of a Forest Service regulation that requires the maintenance of viable populations of existing native species. The Forest Service interpreted "native" to mean native to the ecological project area and existing in a natural state. The court first holds that the Forest Service's interpretation of the term "native" in 36 C.F.R. § 219.19 is reasonable. Section 219.19 contains no definition of "native," and the court is required to uphold the Forest Service interpretation unless it is unreasonable. The court next holds that the EA's failure to mention the fact that the shortleaf pine is listed as an endangered species under Illinois law does not warrant reversal of the EA. An EA must discuss any inconsistency between a proposed action and local law, but is not required to bow to local law — only consider it. And if the Forest Service had considered Illinois law, it would doubtless have concluded that since Illinois approved the ecological project and never indicated that it considers the shortleaf pines endangered, the impact on the pines is not an adequate reason for blocking the project.

[Prior decisions in this litigation are published at 25 ELR 20300 and 21246.]

Counsel for Plaintiffs
Dr. Joseph Glisson
Rural Rte. 2, Box 84, Creal Springs IL 60293
(618) 966-2547

Counsel for Defendants
William Coonan, Ass't U.S. Attorney
U.S. Attorney's Office
Nine Executive Dr., Ste. 300, Fairview Heights IL 62208
(618) 628-3700

Before Fairchild and Kanne, JJ.

[28 ELR 21053]

Posner, J.

Before us is an appeal from a grant of summary judgment to the Forest Service in a suit to enjoin an "ecological restoration" project in a 10,500 acre tract ("Opportunity Area 6 [or OA6]") of the Shawnee National Forest in southern Illinois. The litigation has a long history unnecessary to recount, as the issues presented by the appeal are narrow ones. The first concerns the Service's compliance with a federal regulation that requires it "to maintain viable populations of existing native" species, 36 C.F.R. § 219.19. The project, although designed to promote a variety of fauna and flora native to the area, will have adverse effects on shortleaf pines and pine warblers. The Forest Service, however, interprets the word "native" in the regulation to mean "native to the project area," that is, to OA6, rather than native to the state or even to the national forest; and it interprets "native" to mean existing in a "natural" state in the area rather than introduced by man in recent times. On the basis of these interpretations, the Service held that the regulation does not bar the restoration project. The pines, which in turn provide a habitat for the warblers, were first planted in OA6 during the 1930s and 1940s, and that is too recent to satisfy the Service's conception of what it means for a plant or animal to be "native" to an area.

An agency is entitled to broad latitude in interpreting its regulations. E.g., Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, (1994); Arkansas v. Oklahoma, 503 U.S. 91, 112 [22 ELR 20552] (1992); Lyng v. Payne, 476 U.S. 926, 939 (1986). Since the regulation in question contains no definition of "native," we are required to uphold the Forest Service's interpretation unless it is unreasonable. E.g., Thomas Jefferson University v. Shalala, supra, 512 U.S. at 512; Bradvica v. INS, 128 F.3d 1009, 1014 (7th Cir. 1997). It is not.

Second, the environmental assessment prepared for the project does not mention the fact that the shortleaf pine is listed as an endangered species in the Illinois Administrative Code, § 1050.30. (It does mention, and sufficiently discuss the project's impact on, the pine warblers. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 [19 ELR 20743] (1989).) An environmental assessment or environmental impact statement must discuss any inconsistency between a proposed action, such as the restoration project at issue here, and local law. 40 C.F.R. § 1506.2(d). The Service argues that the shortleaf pines fall within an exemption in the Illinois endangered-species law for "individual plants," Ill. Adm. Code § 1050.20, but this seems doubtful, considering the number of trees that are to be cut down. But [28 ELR 21054] we do not think the oversight in the environmental assessment warrants reversal. The federal regulation does not require that the Service bow to local law — only that it consider it. And if it had done that here, it would doubtless have concluded that since the State of Illinois has approved the ecological-restoration project and has never indicated that it considers the shortleaf pines in OA6 endangered, and since two substantial stands of native shortleaf pines ("native" by the Service's exacting definition) will remain, the impact on the pines is not an adequate reason for blocking the project. As in the closely related case of Cronin v. U.S. Dept. of Agriculture, 919 F.2d 439, 442-43 [21 ELR 20492] (7th Cir. 1990), "a remand for better findings would serve the plaintiffs' interests in delaying the [project], but no other interests, for it is plain what those findings must be. Chenery [SEC v. Chenery Corp., 332 U.S. 194 (1947)] does not require futile remands."

No other issues need be discussed.

Affirmed.