Friends of the Bow v. Thompson

United States Court of Appeals for the Tenth Circuit · Administrative Law

Administrative LawNEPANFMAAPAjudicial review of agency actionarbitrary and capriciousNEPANFMA

Facts

The Forest Service approved the Banner Timber Sale in the Medicine Bow National Forest after preparing a lengthy environmental assessment and issuing a FONSI selecting Alternative 2. After the site was later cruised, the expected timber volume for Alternative 2 dropped by 55%, from the original projection to a 3.1 million board foot sale on fewer acres. Friends argued that the approval was arbitrary and capricious, that new information and changed circumstances required a supplemental environmental assessment, and that the agency's responses to its administrative appeal and later supplementation request violated APA §§ 555(e) and 555(b). The Forest Service prepared a Supplemental Information Report concluding that no supplemental EA was necessary, but did not separately respond to Friends' letter requesting one until the SIR was produced.

Issue

Whether the Forest Service acted arbitrarily or capriciously in approving the Banner sale, whether it was required to prepare a supplemental EA based on the reduced post-cruise sale volume or alleged new timber-supply information, and whether its responses to Friends' administrative appeal and supplementation request satisfied APA §§ 555(e) and 555(b).

Rule

Under APA review, agency action is arbitrary and capricious only if the agency failed to consider relevant factors, relied on improper factors, contradicted the evidence before it, or made an implausible judgment. A supplemental environmental analysis is required only when there are substantial changes in the proposed action relevant to environmental concerns or significant new circumstances or information bearing on environmental impacts, and an agency's decision not to supplement is reviewed deferentially. In the NEPA context, the adequacy of a § 555(e) explanation may be assessed in light of the full administrative record, and where the agency ultimately provides an adequate explanation, compliance with § 555(b)'s reasonable-time requirement is judged pragmatically.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Bureau of Range Management approved a grazing permit in eastern Oregon after an environmental assessment and decision notice. A ranchers' group later argued the approval was irrational because the agency's chosen option, after final field measurements, yielded lower projected net revenue than a different option's earlier pre-measurement estimate.

If the challengers rely only on that comparison, which is the strongest argument for upholding the agency under arbitrary-and-capricious review?

Explanation. Under the majority opinion, an agency does not act arbitrarily merely because opponents compare unlike data sets. The court rejected an 'apples and oranges' attack that contrasted post-cruise figures for the selected alternative with pre-cruise figures for another alternative. That mismatch did not show the agency's original reasoning ran counter to the evidence before it. (Derived from Friends of the Bow v. Thompson (n.d.).)