John Swomley v. Karen Schroyer

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
JOHN SWOMLEY; TODD BARKER;
DAVID GOLDSTEIN; ELIZABETH
SWOMLEY; OLIVIA SWOMLEY;
JAMES SWOMLEY; SARAH
SWOMLEY; ROBERT COSINUKE;
WILLA COSINUKE; JENNIFER KRIER;
ABIGAYLE COSINUKE; AUGUST
COSINUKE; KATHRYN VAGNEUR;
BRUCE BARKER; GERRY BARKER;
TOM STEWART; BARBARA
STEWART; THOMAS H. STEWART;
KATHERINE KENNY; ERIC VOTH;
MICHELLE VOTH,
Petitioners - Appellants,
v.
KAREN SCHROYER, in her official
capacity as District Ranger, Aspen-Sopris
Ranger District, White River National
Forest, United States Forest Service;
UNITED STATES FOREST SERVICE, a
federal agency of the United States
Department of Agriculture,
Respondents - Appellees.
No. 20-1335
(D.C. No. 1:19-CV-01055-TMT)
(D. Colorado)
_________________________________
ORDER AND JUDGMENT*
_________________________________
* This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 15, 2021
Christopher M. Wolpert
Clerk of Court
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Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
In 2018, the Forest Service issued a Final Decision Notice approving a timber
project in the White River National Forest (the “Project”). As required by the National
Environmental Policy Act (“NEPA”), the Forest Service evaluated the environmental
impacts of the Project before granting final approval. The Forest Service prepared an
environmental assessment (“EA”), concluding the Project was unlikely to significantly
affect the environment. Twenty-one residents living near the Project (“Petitioners”)
disagreed. They filed a Petition for Review of Agency Action, alleging the Forest Service
violated NEPA and the Administrative Procedure Act (“APA”).
The district court ruled against Petitioners on all counts. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. NEPA
NEPA requires federal agencies to conduct environmental reviews before they
take major action. See 42 U.S.C. § 4321; 40 C.F.R. § 1500.1.1 The stringency of that
1 The Council on Environmental Quality (“CEQ”) revised NEPA’s implementing
regulations in July 2020. See Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16,
2020). The updated regulations do not apply here, as the Forest Service completed its
NEPA review process in April 2018. As a result, we cite to the pre-revision version of the
regulations. This court affords NEPA’s regulations “substantial deference.” New Mexico
ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009).
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review, and the documentation required under NEPA, depends on the significance of the
proposed action’s environmental effects.
After various notice and comment requirements are satisfied, an agency ordinarily
begins the environmental review process by preparing an EA. An EA is a “concise public
document” providing “sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no significant impact.” 40
C.F.R. § 1508.9(a)(1). An EA must include “brief discussions of the need for the
proposal, of alternatives . . . , [and] of the environmental impacts.” Id. § 1508.9(b).
If an agency concludes the proposed action is likely to “significantly affect[] the
quality of the human environment,” it must prepare an environmental impact statement
(“EIS”). 42 U.S.C. § 4332(C). An EIS is a “detailed statement” discussing anticipated
impacts, mitigation, and alternatives. Id.
If an agency decides no significant environmental impacts are likely to occur, the
agency can prepare a “finding of no significant impact” (“FONSI”). A FONSI “briefly
present[s] the reasons why an action . . . will not have a significant effect on the human
environment and for which an [EIS] therefore will not be prepared.” 40 C.F.R. § 1508.13.
B. Project Overview
The Project authorizes logging on 1,631 acres of forest within the White River
National Forest (the “Project Area”). This represents a little less than 10% of the total
acreage the Forest Service considered for the Project. The Project Area is a lodgepole
pine, aspen, and mixed conifer forest. The EA noted tree “species composition within the
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[Project Area] landscape is relatively diverse, [but] age-class diversity and structural
diversity is more homogenous.” Supp. App. 110. When describing the environmental
effects of foregoing the Project—the “No-Action” alternative—the Forest Service stated
the “lack of young forest within the [Project area] landscape could make the area more
vulnerable to large-scale insect epidemics and drought induced mortality. As fuels
continue to increase, there would be increased risk of a large, severe wildfire.” Id. at 212.
The EA noted, “[s]evere wildfire can aggravate a problem posed by a potentially
changing climate: If snowmelt ends earlier and the surrounding trees are also dead, it is
possible that wetlands would have even faster drying time.” Id.
The Project calls for using the “clearcut with leave tree” treatment method on
1,061 acres of forest. Id. at 292. This treatment would harvest all lodgepole pines over
five inches in diameter but leave aspen and mixed conifer species on the landscape.
Another 198 acres would be treated through a “coppice” method, in which all the
merchantable trees would be harvested, and the non-merchantable trees would be either
felled or burned. Id. at 293, 121. The remaining 369.6 acres would be treated through a
“group selection” method that “create[s] small openings, a quarter acre to an acre in size,
to create an environment suitable for conifer regeneration.” Id. at 122. These openings
“would be dispersed throughout” the Project Area and would not collectively exceed 25–
30% of the acreage treated with this method. Id. The Project would require
“[a]pproximately 9 miles of temporary roads . . . to access cutting units,” which involves
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“road maintenance (blading, drainage, surfacing, curve widening)” activities as
necessary. Id. at 293.
The Project has three purposes. First, it will “[p]rovide commercial forest products
and/or biomass to local industries.” Id. at 111. Second, it will “[i]ncrease tree age/size
class diversity at the stand and landscape scales, thereby increasing forest resistance and
resilience to disturbances, such as future bark beetle outbreaks, fires, and other climate-
related mortality events.” Id. Third, it will “[p]rovide snowshoe hare habitat in both the
stand initiation structural stage and in mature, multi-story conifer vegetation to benefit
the Canada lynx, a federally threatened species.” Id. at 112.
C. The Project’s NEPA Process
Neither the Petitioners nor Respondents disputes that the Forest Service’s approval
of the Project is a major federal action triggering NEPA review. See generally 40 C.F.R.
§ 1508.18.
The Forest Service first listed the Project in its Schedule of Proposed Actions in
September 2016, after one year of engaging with community stakeholders. It then
initiated the NEPA sixty-day scoping and comment period on October 6, 2016. The
Forest Service received thirty-nine comments. Petitioners submitted a comment which,
among other things, raised concerns about climate change, mycelium, and the broader
impact of the Project.2 The Forest Service addressed these concerns directly in its formal
2 “Mycelium is the vegetative part of a fungus, such as a mushroom. A fungus
absorbs nutrients from its environment through the mycelium, which breaks down food
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response to comments and agreed to analyze certain issues in subsequent specialist
reports.
After preparing the specialist reports, the Forest Service prepared an EA in August
2017. The EA considered two alternatives: (1) the “No Action” alternative and (2) the
“Proposed Action” of moving forward with the Project. Id. at 120.
The Forest Service issued a draft Decision Notice in December 2017. The draft
Decision Notice triggered a forty-five-day pre-decisional administrative review (the
“Objection” process), during which the Forest Service received twelve objections.
Petitioners filed an objection that again raised their concerns about climate change,
mycelium, and the Project’s environmental impact, and the Forest Service responded. On
April 20, 2018, the Forest Service issued the Project’s final Decision Notice, including a
FONSI.
D. Procedural History
Petitioners initiated this suit on April 10, 2019. The Petition for Review alleges
three counts of NEPA and APA violations. In Count One, Petitioners assert the Forest
Service “failed to adequately disclose and analyze the direct, indirect, and cumulative
impacts of the [Project] on climate change” in violation of NEPA. App. 18. In Count
Two, Petitioners argue the Forest Service “did not employ scientific integrity,” as
sources in the soil. Myceli[a] serve an important role in certain ecosystems due to their
role in the decomposition of plant material, among other reasons.” App. 175 n.6.
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required by NEPA, “because it failed to address opposing scientific studies regarding the
impact of the [Project] on mycelium.” Id. at 19. In Count Three, Petitioners claim the
Forest Service “failed to properly evaluate the intensity of the [Project]” and, as a result,
failed to prepare an EIS as required under NEPA. Id. at 21. For each count, Petitioners
allege the Forest Service’s conduct was arbitrary and capricious under the APA.
The district court rejected all three counts. The district court denied Count One,
stating “Petitioners fail to carry their burden to show that the Project’s CO2 emissions
will likely result in a cumulatively significant impact.” Id. at 346. It denied Count Two,
concluding the issues Petitioners raised based on the scientific studies used by the Forest
Service were not capable of proving the Forest Service relied on insufficient or erroneous
information. The district court also denied Count Three, holding the controversy “factor[]
Petitioners rely on fall[s] well short of showing that the Forest Service engaged in a ‘clear
error of judgment’ in finding no significant impact and declining to prepare an EIS.” Id.
at 353. Petitioners timely appealed.
II. DISCUSSION
Petitioners challenging an agency’s compliance with NEPA must bring their
petitions under the APA. This court “give[s] no deference to a district court’s review of
agency action, reviewing its decision de novo.” WildEarth Guardians v. Nat’l Park Serv.,
703 F.3d 1178, 1182 (10th Cir. 2013). Review of the Forest Service’s decisions “is
considerably more deferential,” as this court will “set aside agency action only when it is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.
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(internal quotation marks omitted). A “presumption of validity attaches to the agency
action[,] and the burden of proof rests with the appellants who challenge such action.” Id.
at 1183 (quotation marks omitted).
“In the NEPA context, an agency’s [review] is arbitrary and capricious if it fails to
take a ‘hard look’ at the environmental effects of the alternatives before it.” WildEarth
Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1233 (10th Cir. 2017). An
agency takes a hard look when it “examine[s] the relevant data and articulate[s] a rational
connection between the facts found and the decision made.” New Mexico ex rel.
Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 713 (10th Cir. 2009). “Once
environmental concerns are adequately identified and evaluated by the agency, NEPA
places no further constraint on agency actions.” Citizens’ Comm. to Save Our Canyons v.
Krueger, 513 F.3d 1169, 1179 (10th Cir. 2008) (quotation marks omitted). “Deficiencies
in [a review] that are mere ‘flyspecks’ and do not defeat NEPA’s goals of informed
decisionmaking and informed public comment will not lead to reversal.” Richardson, 565
F.3d. at 704.
Petitioners argue the Forest Service violated NEPA and the APA by failing to
(1) consider the Project’s impact on climate change, (2) adequately consider scientific
data on the Project’s impact on fungi, and (3) prepare an EIS. We turn to these claims
now.
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A. Climate Change Impacts
Petitioners claim the Forest Service’s failure to consider and discuss the Project’s
indirect and cumulative effects on GHG emissions and climate change was arbitrary and
capricious. They also claim the district court erred in concluding otherwise. But we need
not review the district court’s decision in great detail. We dismiss this claim because
Petitioners fail to adequately brief this issue on appeal.
Federal Rule of Appellate Procedure 28 requires all appellants to identify their
“contentions and the reasons for them, with citations to the authorities and parts of the
record on which the appellant[s] rel[y].” Fed. R. App. P. 28(a)(8)(A). Yet, Petitioners
present arguments divorced from legal or factual predicates. An illustrative example
follows:
Each year a mature tree can uptake at least 48 pounds of carbon dioxide in
exchange for oxygen 3
—the loss of each tree’s CO 2 absorption abilities must
also be considered in addition to all the other negative impacts the project
will have on the environment. Respondents argue that new growth will
compensate for the loss of mature trees. This is a flawed argument. There is
a significant difference between the amount of carbon dioxide that a sapling
and a mature tree can absorb. It is incorrect to conclude that new growth, as
a result of an unnatural human process, will be enough to offset the GHG
emissions from the biomass fuel energy generation process.
3 https://www.arborday.org/trees/treefacts/
Aplt. Br. at 17.
Petitioners’ failure to cite the administrative record merits dismissal of this claim.
They cannot overcome the presumption of validity we afford agency actions without
presenting any supporting evidence. “[C]ursory statements, without supporting analysis
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and case law, fail to constitute the kind of briefing that is necessary to avoid application
of the forfeiture doctrine.” Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir. 2007).
We have “routinely [] declined to consider arguments that are not raised, or are
inadequately presented, in an appellant’s opening brief.” Id. at 1104.
It is true “we have recognized that consideration of extra-record materials is
appropriate in extremely limited circumstances,” such as when “an initial examination of
the extra-record evidence . . . may illuminate whether [an agency] has neglected to
mention a serious environmental consequence, failed adequately to discuss some
reasonable alternative, or otherwise swept stubborn problems or serious criticism under
the rug.” Audubon Soc’y of Greater Denver v. U.S. Army Corps of Eng’rs, 908 F.3d 593,
609–10 (10th Cir. 2018) (quotation marks omitted). But the circumstances here do not
warrant deviating from our default rule that “review of agency action is normally
restricted to the administrative record.” Id. at 609.
The extra-record evidence includes photographs of unrelated projects, links to data
from advocacy group websites, links to Wikipedia articles discussing wildfires, and links
to media articles describing the biomass plant receiving the Project’s timber. These
materials do not raise concerns neglected during the Forest Service’s NEPA review. See,
e.g., Supp. App. 212 (EA stating the “No Action” alternative poses an “increase[d] risk of
a large, severe wildfire” and then describing how severe wildfires “can aggravate”
problems posed by climate change). As a result, this evidence cannot be considered, and
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we reject Petitioners wholly unsupported climate change claim.3 See Nance v. Sun Life
Assur. Co. of Can., 294 F.3d 1263, 1269 (10th Cir. 2002) (stating extra-record evidence
need not be considered).
B. Mycelium Impacts
The Forest Service also found the Project’s effect on mycelium was insignificant
and did not warrant further review. Petitioners challenge this conclusion, arguing the
agency failed to ensure their analysis had “scientific integrity” as required under NEPA.
40 C.F.R. § 1502.24. We also reject this claim due to inadequate briefing.
Petitioners have not prepared a record enabling judicial review of this claim. They
allege three studies “independently [show] that” clearcutting causes “significant negative
impacts on mycelium and the environment.” Aplt. Br. at 29. They also allege the Forest
Service “actively choose [sic] to ignore the results” of these studies in favor of other data,
and thus violated NEPA and the APA by “reach[ing] a decision that ran ‘counter to the
evidence before’ it.” Id. at 28–29 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). But Petitioners do not include the studies in their
appendix, meaning we cannot assess the rationale behind the Forest Service’s scientific
3 For the above reasons, we do not decide whether the Project’s impacts on climate
change are significant enough to warrant additional analysis. However, we agree with the
district court that NEPA requires agencies to discuss an action’s impacts “in proportion to
their significance,” and insignificant impacts merit “only enough discussion to show why
more study is not warranted.” 40 C.F.R. § 1502.2(b). It follows that, in some instances,
NEPA may require an agency to undertake preliminary analysis of a Project’s effects on
climate change to demonstrate why no further study is warranted.
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findings or determine whether the agency’s decision runs counter to the evidence that
was before it. 4
This proves fatal to Petitioners’ claim given the heavy dual burdens they face on
appeal. Agencies are entitled to choose among conflicting reasonable scientific opinions.
San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1057 (10th Cir. 2011) (“When specialists
express conflicting views, an agency must have discretion to rely on the reasonable
opinions of its own qualified experts even if, as an original matter, a court might find
contrary views more persuasive.” (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360,
378 (1989))). Additionally, agencies’ NEPA findings enjoy a “presumption of validity.”
WildEarth Guardians, 703 F.3d at 1183.
Petitioners’ inadequate briefing cannot overcome these burdens. Without the
disputed studies, we cannot determine whether the Forest Service’s interpretation of them
was arbitrary or capricious. We therefore decline to consider this claim. See 10th Cir.
4 Petitioners also argue the EA lacked scientific integrity because it “did not
explain the crucial importance of mycelium to forest health.” Aplt. Br. at 27. Yet, the EA
sufficiently acknowledged the importance of mycelium. The Vegetation Ecology/Botany
Specialist Report noted the key role mycelium play in forest ecosystems. See Supp. App.
28 (“Fungal communities . . . provide important function of breaking down wood and are
important to plant germination and growth.”). The Forest Service also cited reports that,
according to Petitioners, stated mycelium is vital to the environment. See id. at 192 (EA
quoting the 1999 Hagerman study). An EA is prepared “to assist agency planning and
decisionmaking.” 40 C.F.R. § 1501.3(b). Here, including more information about the
benefits of mycelium would not have altered the Forest Service’s decisionmaking
process. The Forest Service already viewed fungal health as a positive environmental
attribute.
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R. 10.4(B) (“When the party asserting an issue fails to provide a record or appendix
sufficient for considering that issue, the court may decline to consider it.”).
C. EIS Analysis
Finally, Petitioners assert the Forest Service needed to prepare an EIS because the
Project “will have a significant impact on the environment.” Aplt. Br. at 32. They offer
two justifications for this claim. Petitioners first restate their argument that the Project’s
climate change impacts are significant. We reject this argument for the reasons described
supra Part II.A. Petitioners then argue the Project is controversial enough to render its
impact significant. We turn to that argument now.
NEPA regulations state that if an action’s “effects on the quality of the human
environment are likely to be highly controversial,” then that action may require an EIS.
40 C.F.R. § 1508.27(b)(4). Petitioners provide three reasons why the Project is
sufficiently controversial, none of which is persuasive.
First, Petitioners assert the Forest Service’s failure to “consider potential climate
impacts” is controversial. Aplt. Br. at 42. This is mistaken. If alleged noncompliance with
NEPA rendered a project controversial, this factor would be reduced to surplusage.
F.T.C. v. Kuykendall, 466 F.3d 1149, 1155 (10th Cir. 2006) (“[A] cardinal principle of
statutory construction is the duty to give effect, if possible, to every clause and word of a
statute.” (internal quotation marks omitted)).
Second, Petitioners maintain the Project is controversial because it “leaves
considerable uncertainty about the Project’s effects that should be addressed in an EIS.”
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Aplt. Br. at 42. This uncertainty, however, is merely Petitioners’ claims about climate
change and mycelium repackaged in a different form. See id. (“The Forest Service denies
that the Project would cause significant damage to mycelium, and simply refuses to
consider potential climate impacts. A high level of uncertainty as to the Project’s effects
persists largely because the Forest Service has failed to provide any support for these
assertions.”) (internal citation omitted). For reasons previously discussed, both claims are
meritless, meaning they do not create sufficient controversy to require an EIS.
Third, Petitioners contend “the Project [is] controversial among area residents and
visitors.” Aplt. Br. at 33. This controversy exists because, Petitioners assert, the project
“would gravely impact the recreational, aesthetic, and economic interests of [] residents.”
Id. at 37. This claim is unavailing. “Controversy in this context does not mean opposition
to a project, but rather a substantial dispute as to the size, nature, or effect of the action.”
Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1181
(10th Cir. 2012) (internal quotation marks omitted). There is no substantial dispute about
the effects of this action given Petitioners’ inadequate briefing. And even if there were,
“[c]ontroversy is only one of ten factors the [Forest Service] must consider when
deciding whether to prepare an EIS . . . So even if a project is controversial, this does not
mean the [Forest Service] must prepare an EIS.” Id. Petitioners do not demonstrate that
any other factors weigh in favor of an EIS. And we cannot conclude the Forest Service’s
decision to forego preparing an EIS is arbitrary or capricious where only one of ten
factors suggests an EIS might be appropriate.
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III. CONCLUSION
For these reasons, we AFFIRM the district court’s order.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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