Sauk Prairie Conservation Alliance v. United States Department of the Interior

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2213
S AUK PRAIRIE C ONSERVATION A LLIANCE,
Plaintiff-Appellant,
v.
U NITED S TATES D EPARTMENT OF THE I NTERIOR , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 17-cv-35 — James D. Peterson, Chief Judge.
____________________
A RGUED M AY 17, 2019 — DECIDED D ECEMBER 12, 2019
____________________
Before R IPPLE, M ANION , and S YKES, Circuit Judges.
S YKES, Circuit Judge. The National Park Service donated
more than 3,000 acres in central Wisconsin to the state’s
Department of Natural Resources. The goal was to turn the
site of a Cold War munitions plant into a state park designed
for a variety of recreational uses. That land now makes up
the Sauk Prairie Recreation Area (“Sauk Prairie Park”). The
Sauk Prairie Conservation Alliance (“the Alliance”), an
environmentalist group, sued to halt three activities now

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2 No. 18-2213
permitted at the park: dog training for hunting, off-road
motorcycle riding, and helicopter drills conducted by the
Wisconsin National Guard. The defendants include the
Department of the Interior, the National Park Service, and
several federal officers. The State of Wisconsin intervened.
The Alliance invokes two federal statutes. The first is the
Property and Administrative Services Act (“the Property
Act”), which, among other things, controls the terms of
deeds issued through the Federal Land to Parks Program,
40 U.S.C. § 550, the program that led to the creation of Sauk
Prairie Park. The statute requires the federal government to
enforce the terms of any deed it issues. And here, the rele-
vant deeds provide that Wisconsin must use Sauk Prairie
Park for its originally intended purposes. The Alliance
argues that dog training and motorcycle riding are incon-
sistent with the park’s original purposes because neither was
mentioned in Wisconsin’s initial application. So, the argu-
ment goes, the statute requires the National Park Service to
enforce the deeds by taking action to end those uses. The
Property Act also requires, with some important qualifica-
tions, that any land conveyed through the program must be
conveyed for recreational purposes. The Alliance argues that
this provision precludes military helicopter training.
The second statute at issue is the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. The Alliance
claims that the federal defendants violated NEPA by failing
to prepare an environmental-impact statement prior to
approving these three uses.
The district court entered summary judgment for the de-
fendants on all claims, and we affirm. To start, the National
Park Service’s approval of these three uses did not violate the

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No. 18-2213 3
Property Act. Dog training and off-road motorcycle riding
were not explicitly mentioned in the State’s initial applica-
tion, but both are recreational uses and therefore consistent
with the original purposes of Sauk Prairie Park. And while
military helicopter training is obviously not recreational, the
National Park Service included a provision in the final deed
explicitly reserving the right to continue the flights, and the
Property Act authorizes reservations of this kind.
As for the NEPA claim, the Alliance failed to show that
the National Park Service acted in an arbitrary and capri-
cious manner. The agency reasonably concluded that its
approval of both dog training and off-road motorcycle
riding fell within a categorical exclusion to NEPA’s require-
ments—an exclusion for minor amendments to an existing
plan. Helicopter training, on the other hand, likely doesn’t
fall within that category. Still, the National Park Service was
not required to prepare an environmental-impact statement
for this use because the agency had no authority to discon-
tinue the flights. Because the Park Service had no discretion,
it was not required to prepare an environmental-impact
statement.
I. Background
The former Badger Army Ammunition Plant was once
the world’s largest propellant-manufacturing facility. Years
of heavy industrial use contaminated the area’s soil and
groundwater with asbestos, lead paint, PCBs, and oil. Plant
operations ceased in 1975, and since then the Army’s reme-
diation efforts have yielded thousands of acres suitable for
recreational use.

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4 No. 18-2213
In 2001 the General Services Administration (“GSA”)
prepared an environmental-impact statement assessing
various uses for the site. Given the property’s proximity to
other recreation areas, the GSA concluded that low- and
medium-intensity recreational uses—activities ranging from
hiking to snowmobiling—would be most appropriate.
Around the same time, then-Congresswoman Tammy
Baldwin and local officials formed the Badger Reuse Com-
mittee, which recommended uses for the property.
Three years later the Wisconsin Department of Natural
Resources (“DNR”) applied to acquire portions of the prop-
erty through the Federal Land to Parks Program. See
40 U.S.C. § 550. As part of its application, the DNR prepared
a Program of Utilization, a four-page document describing
the proposal at a general level. It said that the area would be
used for recreational purposes and that it would “include
facilities for hiking, picnicking, primitive camping, Lake
Wisconsin access and viewing, savanna and grassland
restoration, environmental education, and cultural/historical
interpretation.” The Program of Utilization added that many
local groups “shared a common goal” of converting the
property into a recreation area that would include low-
impact uses. But while the proposal said that the permitted
activities would include these low-impact uses, it never said
that the list was exhaustive. To the contrary, it explicitly
stated that the DNR would prepare a more detailed “Master
Plan” at a later date to “define appropriate land uses.”
Indeed, when the DNR wrote the Program of Utilization, it
had no idea which parts of the future Sauk Prairie Park it
would receive, so a detailed proposal simply wasn’t possi-
ble. To give an example, the state agency did not yet know
that it would receive Parcel V1, a heavily contaminated area

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No. 18-2213 5
that for decades had been used by the Wisconsin National
Guard for helicopter training.
In 2005 the National Park Service approved the applica-
tion, stating that the DNR would convert the land primarily
for recreational use, including the activities listed in the
Program of Utilization. Over the next decade, the National
Park Service began transferring the land piece by piece.
Between May 2010 and February 2015, the agency executed
six deeds conveying all but a few of the parcels that would
eventually make up Sauk Prairie Park (we’ll say more on the
remaining parcels in a moment). Each of these six deeds
included the following language:
[T]he property shall be used and maintained
exclusively for public park or public recrea-
tion[al] purposes for which it was conveyed in
perpetuity … as set forth in the program of uti-
lization … , which program and plan may be
amended from time to time at the request of ei-
ther the Grantor or Grantee.
In other words, each deed explicitly incorporated the DNR’s
Program of Utilization—subject to amendment—as a state-
ment of the purposes for which the land was conveyed. The
deeds also said that if the DNR violated this condition (or
any others), the land “shall revert to and become the proper-
ty of the [federal government] at its option.”
During those same years, the DNR was developing its
Master Plan for Sauk Prairie Park. It released a rough draft
in late 2015 and a final draft a year later. Each version pro-
posed to permit two of the activities contested here. The first
is dog training. Under the Master Plan, hunters may use a

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6 No. 18-2213
small area—roughly 2% of the park—to train their dogs;
namely, they acclimate the dogs to gunshots, though the
parties tell us that only blanks are used. (Relatedly, the
Master Plan permits “dog trialing,” a competitive event that
also involves hunting dogs.) It’s worth noting that the
Alliance has chosen not to challenge any of the other ways in
which parkgoers may bring dogs to and shoot guns in the
park. For instance, no one is challenging the fact that hunt-
ing itself is permitted throughout the park during certain
months of the year.
The second contested use is off-road motorcycle riding.
Six days a year up to 100 riders may use a limited portion of
the bike trails at Sauk Prairie Park. The motorcycles must
meet several environmental standards, including a noise
restriction.
As for helicopter training, the Master Plan was more ten-
tative. By the time the DNR submitted its final draft, the
National Park Service had executed the six deeds we’ve just
mentioned, but it had not yet transferred Parcel V1 where
the helicopters land. The Master Plan did say that the DNR
would support the continued use of the land for “limited
training exercises.” But because helicopter training is not a
recreational use, the Master Plan said that it would have to
be phased out “unless the V1 deed includes specific lan-
guage allowing future use by the [Wisconsin National
Guard].”
The Master Plan also included the DNR’s state-level
environmental-impact statement. The DNR concluded that
dog training and off-road motorcycle riding would not have
a significant effect on the environment. Most of the state
agency’s analysis focused on the fact that the Master Plan as

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No. 18-2213 7
a whole would improve the environment by converting a
former munitions plant into a conservation-focused recrea-
tion area—in other words, that the positive effects would
outweigh the negative. But the plan also included a mean-
ingful explanation of why the DNR thought dog training
and off-road motorcycle riding specifically would have a
minimal impact, even when viewed in isolation. The DNR’s
assessment of helicopter training was less optimistic. The
Master Plan noted that helicopters, if permitted, would
generate substantial noise, wind, and dust, and that “[t]here
is a lack of information about other potential impacts [on
wildlife,] including reproduction, physiological stresses, and
behavior patterns.”
The National Park Service approved the final draft of the
Master Plan and told the DNR that it would treat the docu-
ment as an amendment to the Program of Utilization. The
National Park Service did not, however, prepare its own
environmental-impact statement before approving the plan.
Instead, it prepared a short screening form in which it
concluded that the changes to the Program of Utilization
were categorically excluded from NEPA’s requirements.
According to the agency, an environmental-impact state-
ment wasn’t necessary for “[c]hanges or amendments to an
approved plan, when such changes would cause no or only
minimal environmental impact.” Relying almost entirely on
the DNR’s environmental analysis, the agency concluded
that the changes to the Program of Utilization would have
“only minimal” environmental impact.
After the Master Plan went into effect, the National Park
Service executed two final deeds conveying what remained
of the site. One included essentially the same terms as the

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8 No. 18-2213
previous six: that the DNR must use the land in ways con-
sistent with the purposes described in the Program of Utili-
zation, subject to amendment, and that the federal
government can reclaim the land if the DNR violates that
condition.
But the final deed broke new ground. This instrument
conveyed Parcel V1, the site of the helicopter exercises. Like
the other seven, this deed incorporated the Program of
Utilization to define the “purposes for which [the property]
was conveyed.” Unlike the other seven, it included a new
provision:
Notwithstanding [the paragraph incorporating
the Program of Utilization], if requested by the
WDNR or by the Governor of the State of Wis-
consin, the Wisconsin National Guard may en-
ter into an agreement with the WDNR to
utilize Parcel V1 for rotary wing aviation train-
ing conducted in a manner that is consistent
with [the] WDNR’s approved Master Plan for
the Property.
According to e-mails between GSA and the National Park
Service, the United States Army imposed this requirement.
After the parcel was transferred, the DNR and the Wisconsin
National Guard entered into an agreement permitting
continued helicopter training on Parcel V1. The agreement
also specified a limited flight path for helicopters crossing
the rest of Sauk Prairie Park to reach Parcel V1. Over certain
areas the helicopters may fly as low as 25 feet above the
ground, while in others they must clear 500 feet.
* * *

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No. 18-2213 9
The Alliance is an environmental organization whose
members use Sauk Prairie Park for recreational purposes. It
sued the federal defendants, and the DNR later intervened.
The Alliance claims that the National Park Service violated
the Property Act by authorizing dog training and off-road
motorcycle riding, uses that are inconsistent with the park’s
original purposes. The Alliance also claims that the agency
violated the Act by approving helicopter training, a plainly
nonrecreational use. Finally, the Alliance claims that the
agency violated NEPA by failing to prepare an environmen-
tal-impact statement for these uses.
The Alliance moved for a preliminary injunction, which
the district judge denied. While the Alliance’s interlocutory
appeal of that ruling was pending, the judge entered sum-
mary judgment for the defendants on all claims. The judge
ruled that the contested uses do not conflict with the Proper-
ty Act and that the amendments to the Master Plan do in fact
fall within a categorical exclusion to NEPA’s requirements.
We now review that final judgment on the merits.
II. Discussion
“We review a summary judgment de novo, asking
whether the movant has shown that there is no genuine
dispute as to any material fact.” Kopplin v. Wis. Cent. Ltd.,
914 F.3d 1099, 1102 (7th Cir. 2019) (quotation marks omit-
ted). Under the Administrative Procedure Act, which con-
trols our review, we may set aside the agency’s decisions
only if they were “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). This “standard of review is a narrow one.”
Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quota-
tion marks omitted). “We only must ask whether the deci-

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10 No. 18-2213
sion was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” Highway J
Citizens Grp. v. Mineta, 349 F.3d 938, 952–53 (7th Cir. 2003)
(quotation marks omitted). Regarding the NEPA claim in
particular, “arbitrary and capricious review prohibits a court
from substituting its judgment for that of the agency as to
the environmental consequences of its actions.” Id. at 953
(quotation marks and alteration omitted).
Before we take up the merits, a brief word about stand-
ing. The district judge appropriately began his analysis by
examining whether the Alliance has standing to challenge
the contested uses. Citing well-established principles gov-
erning suits brought by environmental groups, the judge
concluded that the Alliance has established standing to sue.
More specifically, the judge evaluated the following re-
quirements for associational standing:
An organization has standing to sue if (1) at
least one of its members would otherwise have
standing; (2) the interests at stake in the litiga-
tion are germane to the organization’s purpose;
and (3) neither the claim asserted nor the relief
requested requires an individual member’s
participation in the lawsuit.
Sierra Club v. Franklin Cty. Power of Ill., LLC, 546 F.3d 918, 924
(7th Cir. 2008). The judge concluded that the Alliance satis-
fies each of these elements, and we agree. No one contests
the point, so no more needs to be said.

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No. 18-2213 11
A. The National Park Service’s approval of the contested
uses was fully consistent with the Property Act.
We start with an overview of the statutory framework.
Four aspects of the Property Act are important here:
First, the statute authorizes the Secretary of the Interior
(the “Secretary”) to sell surplus land to states to build parks.
“[T]he Secretary, for public park or recreation area use, may
sell or lease property assigned to the Secretary … to a State,
a political subdivision or instrumentality of a State, or a
municipality.” 40 U.S.C. § 550(e)(2).
Second, the statute mandates that whenever the Secretary
executes a deed, the government must retain the option to
retake the land if the state stops using the property for its
intended purposes.
The deed of conveyance of any surplus real
property disposed of under this subsection …
shall provide that all of the property be used
and maintained for the purpose for which it
was conveyed in perpetuity, and that if the
property ceases to be used or maintained for
that purpose, all or any portion of the property
shall, in its then existing condition, at the op-
tion of the Government, revert to the Govern-
ment.
§ 550(e)(4)(A).
Third, the statute authorizes the Secretary to include oth-
er necessary reservations in addition to the option to retake
the land. “The deed of conveyance of any surplus real
property disposed of under this subsection … may contain
additional terms, reservations, restrictions, and conditions

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12 No. 18-2213
the Secretary of the Interior determines are necessary to
safeguard the interests of the Government.” § 550(e)(4)(B).
Fourth, the statute imposes an affirmative obligation on
the Secretary to enforce the terms of the deeds. The Secretary
“shall determine and enforce compliance with the terms,
conditions, reservations, and restrictions contained in an
instrument by which a transfer under this section is made.”
§ 550(b)(1).
1. Dog Training and Off-Road Motorcycle Riding
No one disputes that both dog training and off-road mo-
torcycle riding are recreational activities. The Alliance
argues that the National Park Service nonetheless violated
the Property Act when it approved these uses because (1) the
federal government has an obligation under § 550(b)(1) to
enforce the terms of the deeds; (2) the deeds say, in accord-
ance with § 550(e)(4)(A), that the property may be used only
for its originally intended purposes; and (3) these two
activities were not among the originally contemplated uses.
This argument turns on how the park’s originally intend-
ed purposes are defined. For what it’s worth, we agree with
the Alliance that we begin with the Program of Utilization.
All eight deeds explicitly incorporate that document as a
statement of the “public park or public recreation purposes
for which [the property] was conveyed in perpetuity.” But
the Alliance fails to appreciate the broad strokes with which
the Program of Utilization discussed the park’s purpose. The
document is written at a high level of generality. It simply
says that Sauk Prairie Park will be used for recreation with
the specifics to be filled in later by the Master Plan. And
that’s exactly what happened here.

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No. 18-2213 13
The Alliance insists that the Program of Utilization limits
the park’s uses to the specific activities listed—things like
hiking and camping—or at the very least to low-impact uses.
But that’s not what the Program of Utilization says. It says
only that the proposed uses will include those listed. And we
generally read the word “including” to “introduce[] exam-
ples, not an exhaustive list.” Bernal v. NRA Grp., LLC,
930 F.3d 891, 894 (7th Cir. 2019) (quoting A NTONIN S CALIA &
BRYAN A. GARNER , R EADING L AW : THE I NTERPRETATION OF
LEGAL TEXTS 132 (2012)).
So we frame the purpose of the conveyance at an appro-
priately general level: the property was conveyed for recrea-
tional use, writ large. And dog training and off-road
motorcycle riding are fully consistent with that broad recrea-
tional purpose. When the Master Plan filled in the details by
adding these uses (among others), it did no more than
implement what was laid out in the Program of Utilization.
So there was no deed violation—and therefore nothing for
the National Park Service to enforce.
The Alliance offers two responses. First, it says that the
DNR was bound not just by the Program of Utilization but
also by the recommendations of the Badger Reuse Commit-
tee, the group of local officials organized early in the pro-
cess. The Alliance maintains that the committee
recommended only low-impact uses. But it has never ex-
plained why those recommendations are binding. Granted,
the Program of Utilization says that the Master Plan would
“build upon work done” by the committee. But it never said
that the Master Plan’s authors were bound to what the
committee had in mind. As far as we can gather from the

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14 No. 18-2213
record, the committee’s recommendations were exactly that:
recommendations.
Second, the Alliance argues that the DNR was authorized
to add new activities only if the additions were similar to the
activities that were already listed—namely, those with
similarly minimal environmental impact. The Alliance
frames this argument as a variation on the ejusdem generis
canon of interpretation. See S CALIA & G ARNER , supra at 199
(“Where general words follow an enumeration of two or
more things, they apply only to persons or things of the
same general kind or class specifically mentioned.”). Once
again, nothing in the Program of Utilization called for that
kind of rigidity. The document included a nonexhaustive list
of examples with a separate provision explaining that the list
would be expanded. Indeed, the most the document says is
that the listed activities were “the types of uses we’d antici-
pate would come out of the planning process.” Nothing in
that language outright prohibited the DNR from exploring
other recreational uses.1
1 As for ejusdem generis, there are several reasons the canon doesn’t apply.
For one, we typically use it “to ensure that a general word will not
render specific words meaningless,” CSX Transp., Inc. v. Ala. Dep’t of
Revenue, 562 U.S. 277, 295 (2011), and there’s no risk of that here. To the
contrary, it’s obvious why this document would include some specifics in
addition to a general reservation for amendments: It was an early
proposal for a large-scale plan, so it would be natural to give as many
details as possible while otherwise retaining flexibility. So the canon just
doesn’t do any work here—for this reason, and others. See Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 225 (2008) (explaining that the canon is
relevant only when the text follows an exact pattern: where there is “a
list of specific items separated by commas and followed by a general or
collective term”); Tourdot v. Rockford Health Plans, Inc., 439 F.3d 351, 354

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No. 18-2213 15
Simply put, nothing in the text of the document suggests
a restriction on the DNR’s ability to add new recreational
uses. The National Park Service did not violate the Property
Act when it approved dog training and off-road motorcycle
riding at Sauk Prairie Park.2
2. The National Guard’s Helicopter Exercises
Unlike dog training and off-road motorcycle riding, mili-
tary helicopter training is legitimately inconsistent with the
recreational uses laid out in the Program of Utilization. No
one argues otherwise. But the National Park Service includ-
ed a provision in the deed conveying Parcel V1 that explicit-
ly permits the DNR to reach an agreement with the
Wisconsin National Guard to authorize continued helicopter
training. This counts as an “additional … reservation[] …
necessary to safeguard the interests of the Government” as
permitted under § 550(e)(4)(B).
In response the Alliance argues that § 550(e)(4)(B) is still
subject to the statute’s overarching requirement that the
property be conveyed for recreational use. That is, the
Alliance contends that the “additional reservations” can
include whatever reservations the government finds are in
(7th Cir. 2006) (explaining that the canon applies only if “uncertainty or
ambiguity exists”).
2 The Alliance also raises a technical challenge to a provision in the
Master Plan permitting the DNR to hold unspecified special events
outside the park’s normal use patterns. But the Alliance offered almost
no independent analysis of why that provision violates the Property Act.
In any event, the special events will be recreational in nature, so they—
like dog training and off-road motorcycling—are perfectly consistent
with the purposes for which Sauk Prairie Park was conveyed.

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16 No. 18-2213
its interests unless those reservations would permit non-
recreational activity.
We disagree with this interpretation of the Property Act.
It is perfectly consistent with the statute for the federal
government to convey its property to the State of Wisconsin
“for public park or recreation area use,” § 550(e)(2), and to
require that “the property be used and maintained” by the
State in perpetuity for recreational use, § 550(e)(4)(A), while
simultaneously including “reservations” in its own interests
that have nothing to do with recreation. The Alliance coun-
ters that the statute puts the government to an all-or-nothing
choice: abandon all nonrecreational interests in the property
or don’t use the § 550(e) land-grant program at all. But that
ultimatum simply isn’t in the statute’s text. The statute
instead broadly permits reservations—i.e., “[t]he establish-
ment of a limiting condition or qualification.” Reservation,
BLACK’ S LAW DICTIONARY (11th ed. 2019); id. (“A keeping
back or withholding.”). That is, while § 550(e)(2) authorizes
the government to sell or donate the property for recreation-
al use, § 550(e)(4)(B) authorizes the government to limit and
qualify that transfer. The fact that the transfer must be for a
given reason doesn’t mean that the limitations on that trans-
fer must advance the same purpose. If they did, they
wouldn’t even be limitations.
After all, it’s hard to imagine a reservation aimed exclu-
sively at recreation that would be “necessary to safeguard
the interests” of the United States Government.
§ 550(e)(4)(B). Indeed, the Alliance’s argument would inval-
idate most of the other reservations found in these deeds,
none of which it contends were unlawful. For example, the
deeds retain for the federal government “a non-exclusive

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No. 18-2213 17
easement for use of … roadways,” presumably for nonrecre-
ational purposes. The deeds also grant the government the
right “to enter upon the Property for any purpose of its own as
long as [the] Army continues to occupy any portion of the
former” munitions plant. (Emphasis added.) And the deeds
grant the Army “the right to excavate and remove clay from
any portion of the Property.” If the Alliance’s interpretation
is correct, all of these unchallenged reservations would also
violate the Property Act because they all permit nonrecrea-
tional uses. But the Alliance’s interpretation is not correct;
the clear terms of § 550(e)(4)(B) permit the government to
include exactly these kinds of qualifications.
Next, the Alliance says that the helicopter-training provi-
sion is unlawful because it conflicts with other parts of the
deed that require the property to be used for recreational
purposes consistent with the Program of Utilization. But the
paragraph of the deed authorizing helicopter training explic-
itly says that it applies “notwithstanding” the parts of the
deed that discuss recreational uses. Because of that superor-
dinating language, there is no conflict.
Finally, the Alliance says that § 550(e)(4)(B) should not
apply because there is no evidence that the Secretary actual-
ly determined that this reservation is “necessary to safe-
guard the interests of the Government.” This argument is
new on appeal; the Alliance never mentioned it in the dis-
trict court. When we raised the prospect of waiver at oral
argument, the Alliance’s attorney directed us to two pages of
its summary-judgment brief. But those pages never mention
this point, nor does anything in the rest of the brief. The
argument is therefore waived. See Puffer v. Allstate Ins. Co.,
675 F.3d 709, 718 (7th Cir. 2012) (“It is a well-established rule

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18 No. 18-2213
that arguments not raised to the district court are waived on
appeal.”).
Even if the Alliance had preserved this argument, the
available evidence suggests that the Secretary included this
reservation because the Department concluded, in light of a
request by the Army, that the provision was necessary to
safeguard the nation’s interests in training members of the
National Guard. In one e-mail, a GSA representative ex-
plained to Elyse LaForest of the National Park Service that
the helicopter provision was “a requirement imposed by
[the] Army to allow continued use of the parcel by [the]
Wisconsin National Guard for helicopter training activities.”
In a second e-mail, LaForest explained to the DNR that
“helicopter use is a condition of assignment by the Army.”
And in a third e-mail chain, LaForest informed the State that
the provision was originally requested by the Pentagon and
that the National Park Service did not have the authority to
move forward until it got “word from [the] Army.” So
waiver aside, the Alliance’s argument is meritless.
As a fallback the Alliance argues that even if helicopter
training in Parcel V1 is not unlawful, the low-level flights
over the rest of the park are a step too far. As the Alliance
correctly notes, the deeds conveying the other parcels said
nothing about helicopters. They simply said that the “prop-
erty shall be used and maintained exclusively for public
park or public recreation[al] purposes … in perpetuity.” The
federal defendants argue that the other deeds are relevant
only in defining which land uses are permitted and that the
military has the right to use the airspace over those parcels
regardless of whether the deeds explicitly permit it.

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No. 18-2213 19
We’re hard-pressed to evaluate this argument because no
party cites any support for its position—not a single case,
statute, or regulation. The Alliance simply declares that the
flights violate the deeds; the federal defendants declare that
they do not. But this isn’t an easy question with an obvious
answer. We’ve identified a number of legal principles that
could plausibly be relevant. For instance, a Wisconsin statute
declares that “[t]he ownership of the space above the lands
and waters of this state is declared to be vested in the several
owners of the surface beneath.” WIS. S TAT. § 114.03. Like-
wise, the Wisconsin Supreme Court has said that “a land-
owner has a three dimensional property interest in … the
block of air that is bounded by … the person’s land hold-
ings … and rises up to approximately the height of the
government-defined minimum safe altitude of flight.”
Brenner v. New Richmond Reg’l Airport Comm’n, 816 N.W.2d
291, 303 (Wis. 2012). And the state high court has also held
that the government takes a property interest in a piece of
land if it flies “low enough and with sufficient frequency to
have a direct and immediate effect on the use and enjoyment
of the property.” Id. at 310. On the other hand, while federal
regulations prohibit aircraft from flying below certain alti-
tudes, see 14 C.F.R. § 91.119, they carve out an exception for
helicopters, which “may be operated at less than the mini-
mums prescribed” elsewhere so long as the pilot follows
federal law and flies “without hazard to persons or property
on the surface,” id. § 91.119(d).
Without the benefit of any briefing on these issues, we
have no basis to properly evaluate this argument. Because
the Alliance did not develop its position in a meaningful
way, this argument is also waived. See Local 15, Int’l Bhd. of
Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 783 (7th

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20 No. 18-2213
Cir. 2007) (“A party waives any argument that it does not
raise before the district court or, if raised in the district court,
it fails to develop on appeal.”) (quotation marks omitted).
B. The National Park Service’s NEPA analysis was not
arbitrary or capricious.
NEPA requires federal agencies to prepare environmen-
tal-impact statements for “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
§ 4332(c). The federal defendants argue that the National
Park Service was not required to prepare an impact state-
ment evaluating dog training or off-road motorcycling
because the agency’s approval of these uses was categorical-
ly excluded from NEPA’s requirements. As for helicopter
training, they argue that the National Park Service had no
discretion to discontinue the flights in light of the Army’s
demands.
1. Dog Training and Off-Road Motorcycle Riding
Whether an environmental-impact statement is required
hinges on whether the action at issue will “significantly
affect” the environment. The question here is how much
analysis an agency must do before deciding that an action
won’t have significant environmental effects. More specifi-
cally, how can an agency know what effects the action will
have without preparing the environmental-impact statement
in the first place?
In the typical case, an agency will prepare an “environ-
mental assessment,” see 40 C.F.R. § 1501.4(b), which we’ve
described as “a rough-cut, low-budget environmental im-
pact statement designed to show whether a full-fledged
environmental impact statement—which is very costly and

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No. 18-2213 21
time-consuming to prepare and has been the kiss of death to
many a federal project—is necessary,” Rhodes v. Johnson,
153 F.3d 785, 788 (7th Cir. 1998) (quotation marks omitted).
But an agency can skip the environmental assessment if an
action falls within a “categorical exclusion,” see 40 C.F.R.
§ 1501.4(a)(2), which the regulations define 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,” id. § 1508.4. If an action falls within a
categorical exclusion, the agency generally does not need to
prepare an environmental-impact statement, subject to one
carveout: Even if an action falls within a specified category,
an environmental-impact statement is still necessary if there
are “extraordinary circumstances” indicating that the action
will nonetheless have a significant effect. See id. So the
inquiry presents two questions: Does this action fall within a
category that generally has no significant effect? And will it
nonetheless have a significant effect because of extraordi-
nary circumstances unique to this case?
The National Park Service prepared neither an environ-
mental-impact statement nor an environmental assessment.
Instead it took the position that the decision to permit the
contested uses fell within a categorical exclusion for
“[c]hanges or amendments to an approved plan, when such
changes would cause no or only minimal environmental
impact.” We’ll call this the minor-amendment category.
We begin by noting that the Alliance has never chal-
lenged whether the minor-amendment category is legitimate
in the first place—despite several potential problems with its
provenance. For one, the substance of this category of exclu-

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22 No. 18-2213
sion is rather unusual. As mentioned, section 1508.4 permits
an agency to skip an environmental-impact statement for
actions falling within a specified category, but only if it uses
established procedures to determine that actions within that
category generally have no significant effect. In other words,
NEPA always requires some sort of environmental analysis,
but the agency may do it at the categorical level rather than
on a case-by-case basis. But the minor-amendment category
is defined in terms of whether an action’s impact will be
minimal, which is completely circular: Why doesn’t the
agency have to assess whether the action will have a signifi-
cant effect? Because it falls within the minor-amendment
category. Why does it fall within that category? Because it
won’t have a significant effect. Given that circularity, it’s
unclear what kind of environmental analysis the National
Park Service could have possibly done at a categorical level.3
3 There was also some uncertainty at oral argument about whether this
category was developed through notice-and-comment rulemaking and
whether it appears in the Federal Register—both of which are indisputa-
bly required. See 40 C.F.R. §§ 1508.4, 1507.3. But after oral argument the
government was finally able to confirm that the minor-amendment
category went through the rulemaking process and that it appears in the
federal register. See National Environmental Policy Act; Revised Imple-
menting Procedures, 49 Fed. Reg. 39,233, 39,235 (Oct. 4, 1984).
Likewise, there was some uncertainty about whether the minor-
amendment category appeared anywhere in the record on appeal. In the
National Park Service’s NEPA screening form—the document in which it
determined that no environmental-impact statement was needed—the
agency claimed that the minor-amendment category could be found in
section 3.3(B)(1) of the agency’s NEPA handbook. But the parties could
not identify at oral argument where section 3.3(B)(1) appeared in the
record. The agency’s appendix includes only section 3.3(A)(1)—a
similarly worded category that applies to changes to “actions related to

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No. 18-2213 23
Nonetheless, the Alliance did not raise this point in its
briefs, and at oral argument it affirmatively waived any
challenge to the substance of the minor-amendment catego-
ry. For the purpose of this litigation, no environmental-
impact statement was required if the National Park Service
found that the amendments to the Program of Utilization
“would cause no or only minimal environmental impact.”
The first major dispute is whether it was appropriate for
the National Park Service to rely almost exclusively on the
DNR’s environmental-impact statement. The National Park
Service itself prepared only a short 13-page screening form
in which it checked a few boxes and included a few lines of
brisk explanation. Its final conclusions rested almost entirely
on conclusions already made by the state environmental
agency. The Alliance claims that the National Park Service
was required to conduct its own independent analysis to
satisfy NEPA.
We disagree. To be sure, there are several places where
either NEPA or its associated regulations require independ-
ent actions by the federal agency itself. For instance, when a
full environmental-impact statement is necessary, the statute
requires “a detailed statement by the responsible official.”
§ 4332(C) (emphasis added). Likewise, an agency can ap-
prove a category of use as a categorical exclusion only if the
category first passes through procedures established “by a
Federal agency.” See 40 C.F.R. § 1508.4 (emphasis added). But
the Alliance hasn’t cited any legal authority that limits what
general administration.” But the agency indisputably did not rely on that
category here. It wasn’t until after oral argument that the government
finally supplemented the record with the correct portion of its NEPA
handbook.

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24 No. 18-2213
kind of information an agency may rely on in determining
whether a properly promulgated category applies. And
that’s the kind of choice that’s usually left to the agency. See
La. ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir. 1988)
(“[O]ur deference to the agency is greatest when reviewing
technical matters within its area of expertise, particularly its
choice of scientific data and statistical methodology.”).
We dealt with a similar question in a different context in
Highway J Citizens Group. The question there was whether a
federal agency could rely on a state-level environmental
analysis—not at the first step of the categorical-exclusion
analysis (whether a categorical exclusion applies at all) but
at the second step (whether extraordinary circumstances
require an impact statement despite the category’s applica-
tion). We said that the federal agency could rely on the
state’s analysis because “neither a statute nor a rule requires
the agency to write its own analysis.” Highway J Citizens
Grp., 891 F.3d at 699. That is just as true at the first step of the
categorical-exclusion analysis: No statute or rule requires an
independent evaluation. Accordingly, a federal agency may
rely on a state’s environmental-impact analysis to determine
whether a categorical exclusion applies.
The next major dispute concerns the appropriate base-
line. An action with “minimal” impact falls within the
exclusion. But “minimal” compared to what? The Alliance
insists that because the minor-amendment category is de-
fined in terms of “amendments,” we should compare the
impact of these three uses to “the impacts that would occur
under the original Program of Utilization.” The National
Park Service disagrees. Rather than compare the amended
plan to what would have happened under the original pro-

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No. 18-2213 25
posal, the National Park Service says that we should focus
on the final plan’s impact on the park’s actual, current
conditions.
According to the Alliance, the National Park Service’s
baseline distorts the inquiry in two ways. First, it absolves
the agency of doing meaningful analysis because pretty
much any plan would improve the park’s current condi-
tions. Sauk Prairie Park sits on the remains of a contaminat-
ed munitions plant, so any kind of recreation area will be an
improvement. Second, the Alliance argues that the National
Park Service’s baseline allows for too much balancing of
distinct impacts. Namely, the federal agency claims it can
offset the negative impacts of these uses with the positive
impacts of the plan’s extensive habitat-restoration efforts.
The problem, according to the Alliance, is that we’re evaluat-
ing proposed changes to the Program of Utilization, and the
original program already included those restoration efforts.
The Alliance also argues that federal regulations prohibit
this kind of offsetting. See 40 C.F.R. § 1508.27(b)(1) (“A
significant effect may exist even if the Federal agency be-
lieves that on balance the effect will be beneficial.”).
We need not decide which baseline is correct. Under ei-
ther framework there was enough analysis in the Master
Plan and in the NEPA screening form to support the Nation-
al Park Service’s conclusion that the amendments would
have minimal impact. In other words, some of the analysis
truly does evaluate the effect of the amendments as amend-
ments, just as the Alliance demands.
As discussed, the National Park Service’s NEPA screen-
ing form relied heavily on the environmental analysis that
the DNR provided in the Master Plan. It’s important to

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26 No. 18-2213
remember that when the state agency prepared its own
environmental-impact statement, it was evaluating the plan
in its entirety. As a result, it includes analysis of both the
total result—that is, the cumulative effect of the beneficial
and harmful impacts—as well as of individual uses on their
own.
To give just a few examples, the Master Plan describes
nine ways in which it proposed to limit the harmful effects
of off-road motorcycling. Among others, riding would be
limited to six days per year and to half the park’s trails, and
each bike would have to be tested to ensure its noise did not
exceed 96 decibels. The Master Plan then explained that at
Wisconsin’s Bong State Recreation Area, data showed that
“[t]here doesn’t appear to be a sizeable reduction in the
number of species or number of birds in the area where
motorized recreation is allowed compared to other areas on
the property.” Finally, the Master Plan concluded, “[w]hile
individual animals may experience stress and stress re-
sponses[,] … any impacts to populations are expected to be
minor.” Largely relying on these findings, the National Park
Service noted in its NEPA screening form that because the
“plan has limited the frequency of motorized use and pro-
vides management guidelines to limit impacts on wildlife,”
the use would not “[h]ave significant negative impacts on
species.”
Note that this analysis explicitly compares what would
happen with motorcycle riding to what would happen
without it. In other words, it compares the effect of a plan
with amendments to the effect of a plan with none. That’s
the Alliance’s baseline.

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No. 18-2213 27
The analysis of dog training was less extensive, but the
Master Plan still assessed its impact under the Alliance’s
proposed baseline, at least to some extent. For instance, the
plan says that “[a]ny impacts to biological resources from
dog trials are likely to be minimal, localized, and of short
duration.” It also says that because there is no “pattern of
problems or complaints related to the use of dog training
grounds” at other recreation areas in the state, “[a]ny im-
pacts associated with the dog training at [Sauk Prairie Park]
are expected to be minor and temporary.”
Granted, the Master Plan also included language about
the impact of the plan as a whole rather than of the amend-
ments in isolation. For instance, it said, “When balanced
against the habitat improvements that are planned and
associated increases in wildlife that are expected, impacts
from the use of dual-sport motorcycle[s] at [Sauk Prairie
Park] are expected to be limited.” But the fact that the Master
Plan included some “whole plan” analysis doesn’t change
the fact that it also included ample analysis directly as-
sessing the impact of the amendments themselves.
That analysis was sufficient—certainly so under our nar-
row standard of review. As noted earlier, we may set aside
the agency’s decision only if it was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). The Supreme Court has directed
us to ask whether the “decision was based on a considera-
tion of the relevant factors and whether there has been a
clear error of judgment,” Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983),
but “the ultimate standard of review is a narrow one,”
Marsh, 490 U.S. at 378 (quotation marks omitted). In the

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28 No. 18-2213
NEPA context, we have said that “[i]f an agency considers
the proper factors and makes a factual determination on
whether the environmental impacts are significant or not,
that decision implicates substantial agency expertise and is
entitled to deference.” Highway J Citizens Grp., 349 F.3d at
953. The agency relied on the State’s analysis, which in turn
evaluated the expected impact of the contested uses and
concluded that the impact would be minimal—even when
considered in isolation, without reference to other beneficial
parts of the plan. Nothing about the agency’s conclusion was
arbitrary or capricious, and its application of expertise is
entitled to deference.
As a final rejoinder, the Alliance falls back on the second
step of the categorical-exclusion analysis. It argues that even
if this use falls within the categorical exclusion, the National
Park Service was still required to prepare an environmental-
impact statement because of extraordinary circumstances.
As required by federal regulations, the Department of the
Interior has promulgated a list of potentially extraordinary
circumstances that should be considered in this context. See
43 C.F.R. § 46.215. The Alliance claims four are at issue here.
The first three involve issues similar to those we’ve al-
ready discussed. The Alliance argues that the action will
have “significant impacts on such natural resources and
unique geographic characteristics as … park, recreation, or
refuge lands[,] … and other ecologically significant or critical
areas.” Id. § 46.215(b). It then argues that the action will have
“highly uncertain and potentially significant environmental
effects.” Id. § 46.215(d). And finally, it argues that the action
will “[e]stablish a precedent for future action … with poten-
tially significant environmental effects.” Id. § 46.215(e). But

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No. 18-2213 29
we’ve already held that the National Park Service adequate-
ly explained why dog training and motorcycle riding will
not have significant environmental effects. These arguments
fail for the same reasons.
The fourth provision is slightly more plausible. The
Alliance claims that the action will have “highly controver-
sial environmental effects or involve unresolved conflicts
concerning alternative uses of available resources.” Id.
§ 46.215(c). The National Park Service acknowledged in its
NEPA screening form that there was public controversy over
whether to permit active or passive recreation. The agency
discounted that problem by noting that the State—not the
federal government—defines the property’s uses. But it’s not
clear why that matters: The National Park Service concedes
that its decision to approve the State’s proposed uses is a
major federal action for NEPA purposes. So it has an obliga-
tion to determine whether its own extraordinary-
circumstances regulations require an impact statement. And
those regulations say that “highly controversial environmen-
tal effects or … unresolved conflicts” can be enough to
trigger further review. Nonetheless, the Alliance never
argued before the district court that public controversy
warranted a full impact statement under this regulation. The
argument is therefore waived. See Puffer, 675 F.3d at 718.
The National Park Service’s approval of dog training and
off-road motorcycling fits comfortably within the categorical
exclusion, and no extraordinary circumstances otherwise
required a full environmental-impact statement.

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30 No. 18-2213
2. Helicopter Training
In its NEPA screening form, the National Park Service
offered essentially no independent analysis of the environ-
mental impact of helicopter training at Sauk Prairie Park.
And unlike with the other two contested uses, the agency
didn’t even purport to rely on the state-level environmental-
impact statement. That was likely because the DNR couldn’t
say with certainty that continued helicopter training would
not harm the environment. It noted that helicopters “will
generate considerable wind and dust” and “substantial
noise,” and that “[t]here is a lack of information about other
potential impacts [on wildlife,] including reproduction,
physiological stresses, and behavior patterns.”
All the same, the federal defendants argue that no impact
statement was required because NEPA applies only when an
agency has discretion over whether to take the proposed
action. The National Park Service had no discretion here
because the Army conditioned its approval of this land
transfer on continued helicopter use. It was the Army’s land
to begin with, and the Army would not release it without
this provision. In other words, helicopter training was going
to continue at Parcel V1 one way or another.
Earlier in this opinion we addressed a similar issue when
we discussed whether the Secretary actually determined that
the helicopter-training provision was necessary to safeguard
the nation’s interests as required by § 550(e)(4)(B). As we
observed, the available evidence shows that the Secretary
included this provision in the final deed based on the
Army’s request. Communications between different gov-
ernment agencies reveal that continued helicopter use was
“a requirement imposed by [the] Army,” that “helicopter

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No. 18-2213 31
use is a condition of assignment by the Army,” and that the
National Park Service did not have the authority to move
forward until it got “word from [the] Army” on this issue.
Given that the National Park Service had no independent
authority to end helicopter training at Parcel V1, no envi-
ronmental-impact statement was required. The Supreme
Court addressed this question in Department of Transportation
v. Public Citizen, 541 U.S. 752, 766 (2004). That case involved
the regulation of motor carriers (i.e., highway trucks); more
specifically, it dealt with the authorization of Mexican motor
carriers to operate in the United States. The statutory and
regulatory background is somewhat complex, but the central
question was whether an agency had to evaluate the envi-
ronmental effects of opening the United States market to
Mexican motor carriers if the agency had no authority to
categorically exclude applications from that country.
The Court held that the agency was not required to con-
duct any analysis. The decision started with causation
principles. NEPA requires an environmental-impact state-
ment only when a federal action will “significantly affect”
the environment, § 4332(C), and federal regulations define
“effects” as something “caused by the action” the federal
agency is contemplating, 40 C.F.R. § 1508.8; see Public Citizen,
541 U.S. at 763–64. The Court held that an action must be
both the “but for” cause of the environmental impact as well
as the proximate cause. See Public Citizen, 541 U.S. at 767. In
Public Citizen there was an insufficient causal connection
between the agency’s proposed regulations and the envi-
ronmental effect of new applications because the agency had
no authority to prohibit those applications. See id. at 768–70.

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32 No. 18-2213
This case is exactly the same. The National Park Service
could either approve the provision that permitted helicopter
training in the recreation area or it could permit the Army to
retain the land and continue the helicopter training all the
same. Because the National Park Service had no authority to
end the helicopter training, there is no causal connection
between its decision to approve the provision and any
environmental effects continued training might have. Ac-
cordingly, the National Park Service was not required to
prepare an environmental-impact statement.4
III. Conclusion
In sum, the National Park Service did not violate the
Property Act when it approved the three contested uses.
Two of the three uses are recreational activities perfectly
consistent with Sauk Prairie Park’s recreational purposes,
and the third was authorized by an explicit reservation in
the deed, as permitted by statute. Nor did the National Park
Service violate NEPA. It provided enough explanation for
why two of the contested uses fell within a categorical
4 The Alliance also briefly argues that the National Park Service should
have prepared an environmental-impact statement evaluating the
provision of the Master Plan permitting unspecified special events. But
because these are unplanned events outside the park’s normal use
patterns, the Master Plan says that each permit applicant must show that
the event will not unduly impact the park’s resources. Today those
events are merely hypothetical, so no impact statement is needed:
“[NEPA] speaks solely in terms of proposed actions; it does not require an
agency to consider the possible environmental impacts of less imminent
actions when preparing the impact statement on proposed actions.”
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 145 (2010) (quotation
marks omitted).

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No. 18-2213 33
exclusion. And because it had no authority to discontinue
the third use, no environmental analysis was required.
A FFIRMED

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