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Because neither the National Environmental Policy Act of 1969, 42 U.S.C.S. § 4321 et seq., nor the National Forest Management Act of 1976, 16 U.S.C.S. § 1600 et seq., provide a private right of action, the U.S. Court of Appeals for the Tenth Circuit reviews an approval of a project by the U.S. Forest Service as a final agency action under the Administrative Procedure Act, 5 U.S.C.S. §§ 551 et seq., 701 et seq. Though it considers the decision of the district court decision de novo, the court of appeals will not overturn the agency's decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C.S. § 706(2)(A).
In 2004, the United States Forest Service approved a 123-acre timber-thinning project to treat beetle-infested trees in Utah's Fishlake National Forest. Its approval was made pursuant to a categorical exclusion, a streamlined process allowing minor projects to be quickly implemented so long as they have no significant effect on the environment. As a result of this decision, Utah Environmental Congress ("UEC") appealed to the district court arguing that the project violated the National Environmental Policy Act ("NEPA"), the National Forest Management Act of 1976 ("NFMA"), and the Administrative Procedures Act ("APA"). The district court upheld the Forest Service’s approval, holding that the Forest Service properly implemented the project under a categorical exclusion. UEC challenged the district court’s decision, raising three primary allegations of error: (1) the Forest Service acted arbitrarily and capriciously by failing to consider the cumulative impact of the Seven Mile Project on fish and wildlife; (2) the district court improperly used the Forest Service's 2000 transition provisions, as opposed to the 1982 planning rules, to evaluate the Seven Mile Project; and (3) the Forest Service failed to collect adequate data for management indicator species in violation of the Fishlake National Forest Plan and NEPA.
Did the district court err in affirming the Forest Service’s decision to approve the project in question?
The court first noted that since neither the NEPA nor NFMA provided a private right of action, it was to undertake a de novo review of the action under the APA but that the decision had to stand if not arbitrary, capricious, or contrary to law. The court thereupon held that the United States Forest Service did not act arbitrarily and capriciously in its considerations; that the district court's use of the Forest Service’s 2000 transition regulations and not the 1982 planning rules was not improper; and that the United States Forest Service did not violate the relevant national forest plan and NEPA by its alleged failure to collect adequate data for management indicator species. Nor did the United States Forest Service err in failing to consider and conclude that extraordinary circumstances existed and that a cumulative effects analysis was required despite the categorical exclusion.