BEAM, Circuit Judge.
Central South Dakota Cooperative Grazing District (Grazing District) appeals the district court's
The National Forest Management Act of 1976 (NFMA), 16 U.S.C. §§ 1600 et seq., provides for a two-phase forest planning process. First, the Forest Service is to develop a Land and Resource Management Plan (forest plan), which is a "general planning tool" that "provides guidelines and approved methods by which forest management decisions are to be made." Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.1994). Forest plans are to be prepared in accordance with NEPA. 16 U.S.C. 1604(g)(1); Robertson, 28 F.3d at 758. Second, the Forest Service implements the forest plan through site-specific actions, assessing each such action to determine its compatibility with the forest plan, NEPA,
Under this NFMA configuration, a forest plan identifies suitable grazing lands, while permits to graze, if appropriate under that general plan, are issued pursuant to an appropriate site-specific project analysis. See generally Lujan v. National Wildlife Fed'n, 497 U.S. 871, 892 n. 3, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (mining permits); U.S. Forest Service, 46 F.3d at 837 (timber sales); Robertson, 28 F.3d at 759 (same); Natural Res. Defense Council, Inc. v. Hodel, 624 F.Supp. 1045, 1061 (D.Nev.1985) (grazing permits). Grazing permits "convey no right, title, or interest" in lands or resources, 36 C.F.R. § 222.3(b), and are subject to modification according to changes in management needs or resource conditions, 36 C.F.R. § 222.4(a)(7) & (8).
In this case, the Grazing District is an association that has a permit to graze cattle upon the Grasslands. In 1984, after completion of an EIS, the Forest Service adopted and approved the Nebraska National Forest Land and Resource Management Plan (Nebraska Forest Plan) to regulate use of the Grassland's resources. This plan emphasizes wildlife habitat, directing the Forest Service to "[a]lter grazing systems, season of use, and stocking levels to enhance wildlife habitat." It also requires the Forest Service to have developed residual cover
After extensively studying
The Grazing District subsequently filed a complaint seeking judicial review of this agency action. Both the Grazing District and Forest Service filed simultaneous motions for summary judgment. The district court granted summary judgment in favor of the Forest Service.
II. AGENCY ACTION
We review a district court's summary judgment decision de novo, applying the same standards as those applied by the district court. Friends of the Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1121 (8th Cir.1999). When reviewing agency action intended by Congress to carry the force of law, we accord substantial deference to the agency's interpretation of the statutes and regulations it administers. Compare id. with United States v. Mead Corp., 533 U.S. 218, ___ - ___, 121 S.Ct. 2164, 2172-76, 150 L.Ed.2d 292 (2001) (distinguishing degrees of deference to agency action pursuant to Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), based on whether Congress intended to delegate authority to regulate with the force of law), and Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1186 (8th Cir.2001) (indicating that agency rulings not reached as the result of adjudicatory adversary proceedings or formal rule making are not entitled to Chevron-type deference but are "nevertheless accorded respect by the courts to the extent [they have] the power to persuade"). Here, it is apparent that Congress intended that public land be managed with the force of law, see, e.g., 16 U.S.C. § 1604 (providing intricate detail for land management process, including, notably, public participation). Following statutory and regulatory guidance, the Forest Service amended the grazing plan through the public comment process.
Although NEPA does not authorize a private right of action, the Administrative Procedure Act (APA) provides for judicial review of agency action. Sierra Club v. Slater, 120 F.3d 623, 630-31 (6th Cir.1997). Under the APA scheme, we must uphold agency action unless it was "`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.'" Richards-Gebaur, 251 F.3d at 1185 (quoting 5 U.S.C. § 706(2)(A)).
A decision is arbitrary and capricious if:
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Yet, "[w]hen the resolution of the dispute involves primarily issues of fact and analysis of the relevant information `requires a high level of technical expertise, we must defer
We therefore accord appropriate deference to the agency's action under both Acts. Because the Grazing District does not indicate that additional evidence is necessary to resolve its claims, we will consider them on their merits and not remand to the district court.
A. The National Environmental Policy Act
As a threshold issue, the Forest Service contends that the Grazing District lacks standing to pursue its NEPA claim. The issue of standing implicates constitutional limitations on federal court jurisdiction and prudential limitations on the exercise thereof. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Prudential standing is ascertained according to the zone-of-interests test, that is "`whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. at 175, 117 S.Ct. 1154 (quoting Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). Article III standing is assessed based on multi-part test, which, for associations, includes the issue of whether the interests at stake are germane to the organization's purpose. Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Here, the Grazing District's unavailing efforts to demonstrate that it has prudential standing reveal that it also lacks Article III standing. See id. at 181, 120 S.Ct. 693.
The Forest Service reasons that "[b]ecause the Grazing District has suffered only economic injury," it has no standing under NEPA. The Forest Service's logic makes a good deal of sense in light of NEPA's overall purpose of establishing "a broad national commitment to protecting and promoting environmental quality," Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), including "promot[ing] efforts which will prevent or eliminate damage to the environment and biosphere," 42 U.S.C. § 4321. Nevertheless, NEPA standing jurisprudence requires us to closely scrutinize the asserted basis for standing. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Hawaii County Green Party v. Clinton, 124 F.Supp.2d 1173 (2000).
Economic interests alone are "clearly not within the zone of interests to be protected by [NEPA]." Churchill Truck Lines, Inc. v. United States, 533 F.2d 411, 416 (8th Cir.1976); accord, e.g., Western Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 903 (9th Cir.1996). However, even though NEPA's procedures are not implicated
Here, the Grazing District argues that 42 U.S.C. §§ 4332(2)(C) and 4331(a), along with Dombeck, provide for protection of economic interests. The Grazing District ignores that in this matter, the Forest Service issued a FONSI and therefore no EIS was prepared, which is of central import to section 4332(2)(C) and to Dombeck, 164 F.3d at 1125 (stating that the "particular provisions relied on by the [plaintiffs] indicate that the social and economic effects of proposed agency action must also be considered once it is determined that the proposed agency action significantly affects the physical environment"). Cf. Robinson v. Knebel, 550 F.2d 422, 424-25 (8th Cir.1977) (distinguishing Churchill based on the fact that, in that case, the agency had not filed an EIS, and thereby finding prudential standing where a plaintiff's "environmental concerns [were] not so insignificant that they ought to be disregarded altogether"). Also, like section 4321, section 4331(a), which addresses maintaining "conditions under which man and nature can exist in productive harmony," is a broad policy statement. Regardless of that overall broad policy, we must look to the specific provision under which the Grazing District raised its NEPA claim. Bennett, 520 U.S. at 175, 117 S.Ct. 1154 § 76.
The Grazing District relies on a NEPA provision that requires all federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). This provision requires agencies to consider alternatives to proposals where an EIS is not required, but unlike considerations within an EIS, does not specifically consider the human environment. Compare id. with 42 U.S.C. § 4332(2)(C) (requiring EIS that includes detailed statement on "alternatives to the proposed action" on "major Federal actions significantly affecting the quality of the human environment"), and 40 C.F.R. § 1508.14 ("Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment.") (citation omitted).
Based on the statutory structure and language, the manifest purpose of section 4332(2)(E) is to require federal agencies to consider environmentally sound alternatives to proposed actions without reference to the human environment and, thus, to economic interests. This impels us back to the position highlighted in Churchill, which is that an economic injury is an insufficient basis for prudential standing within the meaning of NEPA. 533 F.2d at 416. Consequently, if its interests are
Acknowledging that an economic interest was an insufficient basis for standing, to find a requisite environmental interest, the district court relied on the Grazing District's complaint, which asserts that "evaluation of the management indicator species population trend data demonstrated that wildlife habitat was sustained under the stocking rate authorized by the Grazing Agreement." However, for an association to have Article III standing to bring suit on behalf of its members, "the interests at stake must be germane to the organization's purpose." Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693. The Grazing District is a corporation of individual ranchers organized to cooperatively operate and manage grazing lands. We find no indication that the Grazing District has any interest in protecting the wildlife habitat within the Grasslands. Moreover, the Grazing District fails to show that the Forest Service's action will cause environmental injury to itself or its members. See id. Consequently, the Grazing District lacks Article III standing to pursue its NEPA claim.
2. Reasonable Alternatives
Even if we were to assume the Grazing District's requisite standing, its NEPA claim still fails. The Grazing District argues that the Forest Service violated NEPA by failing to consider or evaluate alternatives that permitted stocking rates over 55,440 AUMs. We reject this contention.
As we indicate above, the Forest Service found that the chosen stocking level would have no significant impact on the environment.
An agency need not consider all policy alternatives in its decision-making, Motor Vehicle Mfrs., 463 U.S. at 51, 103 S.Ct. 2856. Nor must an agency pursue policy alternatives that are contrary to the pertinent statutory goals, Dombeck, 164 F.3d at 1129, or do not fulfill a project's purpose, City of Richfield v. FAA, 152 F.3d 905, 907 (8th Cir.1998). Accord Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991) (indicating a proposed alternative is reasonable "only if it will bring about the ends of the
The Grazing District's argument that the EA "acknowledged that grazing at the 70,436 AUM level had achieved USDA's habitat goals for sharp-tailed grouse," is a somewhat generous reading favoring its position. Again, the 70,436 AUM stocking level was only temporarily authorized when the Nebraska Forest Plan had not been subjected to the requisite NEPA or scientific range analysis. Since 1989, the actual stocking rate had not risen above 52,400 AUMs, and the Forest Service's acknowledgment rested on its assessment of the average habitat suitability between 1986 and 1997. More importantly, as the Forest Service explained in its EA, nesting cover under the most favorable conditions barely satisfied the habitat goals when the actual stocking level was below 52,800 AUMs, and, therefore, as we see it, that level was an impetus for modification of the permitted stocking level. In addition, the Grazing District has failed to demonstrate that its preferred level is "environmentally superior" to that chosen by the agency. See Missouri Mining, 33 F.3d at 984.
The amended stocking level is not an abandonment of an alternative within an existing standard. Cf. Motor Vehicle Mfrs., 463 U.S. at 51, 103 S.Ct. 2856. Even if we were to assume that the amended stocking level represented some revocation of a prior standard—which we do not find to be the case since the prior level was merely temporary and had not been closely analyzed— "`the mere fact that an agency interpretation contradicts a prior agency position is not fatal,' unless the new position is a sudden and unexpected change in agency policy that can be characterized as arbitrary, capricious, or an abuse of discretion." Dombeck, 164 F.3d at 1123 (quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996)).
Here, a Range Allotment Management Plan, which was incorporated into the Nebraska Forest Plan, indicated the stocking level was subject to change when appropriate guidelines were adopted and if monitoring and evaluation called for modification. Pertinent regulations also made it clear that the grazing permits were subject to modification. 36 C.F.R. § 222.4(a)(7) & (8). The Forest Service did not abuse its discretion when it did what the plans signaled it might do. Moreover, by virtue of the Forest Service's determination that a stocking level of 57,232 AUMs (or 55,440 initial AUMs) would not consistently satisfy the desired end, it has deliberatively rejected levels exceeding that amount. It stands to reasons that if a stocking level of 57,232 AUMs would only achieve 25-35% of potential habitat suitability, then higher levels would not allow the government to achieve its goal of 40%.
B. Reliability of Methodology
The Grazing District also attacks the methodology the Forest Service employed to assess habitat suitability, which underpins the choice of stocking levels. The
If the administrative record contains evidence that supports the positions of both the agency and the party seeking relief, the agency is entitled to rely on its experts' tests and observations, and decisions made in such reliance are not arbitrary and capricious. Downer v. United States, 97 F.3d 999, 1004 (8th Cir.1996). Even if the agency's data is flawed, if the agency has relied on a number of findings and only some are erroneous, we must reverse and remand only if "`there is a significant chance that but for the errors the agency might have reached a different result.'" Dombeck, 164 F.3d at 1129 (citation omitted). The question for us "is not whether there might have been a better way for the agency to resolve the conflicting issues with which it was faced, but whether the agency's choice is a reasonable one." Southwestern Bell Tel. Co. v. FCC, 153 F.3d 523, 535 (8th Cir.1998).
1. Habitat Suitability Index
The Grazing District argues that the Forest Service's habitat suitability index was such an unreliable measure of sharp-tailed grouse nesting habitat that it rendered decisions stemming therefrom arbitrary and capricious. The index compares levels of residual cover that remained after grazing with levels of cover in ungrazed areas in order to assess whether habitat for management indicator species, such as the sharp-tailed grouse, achieved at least 40% of potential. The Grazing District contends that the index "did not establish a verifiable correlation between two measurable and quantifiable criteria," because "[w]hile visual obscurity can be quantified through direct measurement, habitat suitability can not [sic]," and that the Forest Service "did not use similar data to set the end points of its graph of the assumed relationship between visual obscurity and habitat suitability for sharp-tailed grouse on the [Grasslands]."
These concerns stem from the Grazing District's underlying assumption that the Forest Service should have included the effect of visual obscurity on sharp-tailed grouse populations in its index. However, the Grazing District misapprehends the index, which was designed to assess the effect of grazing on the level of residual cover, not on the grouse population. The Forest Service obtained from other sources data regarding what constitutes habitat suitability and need not have included in chart-form what it knew from its other sources to be the case. For instance,
Bart L. Prose, Habitat Suitability Index Models: Plains Sharp-Tailed Grouse, U.S. Fish Wildl.Serv.Biol.Rep. 82(10.142), 9, (1987) (citing various authorities).
Furthermore, the Grazing District ignores the Forest Service's charge to protect the Grasslands habitat for fauna other than the sharp-tailed grouse, along with flora and other resources. As the Environmental Assessment points out:
The Forest Service's habitat suitability index was not defective for the purpose it was used and does not undermine other data the Forest Service relied upon. Nor was the index the primary tool used in the Forest Service's decision-making, but was merely "one of many considerations ... along with many other pieces of information, both biological and social." The Forest Service accounted for discrepancies to which the Grazing District directs us and was entitled to rely upon its experts and data even though there may have been some conflicting data. See Perkins v. Bergland, 608 F.2d 803, 807 (9th Cir.1979) (cautioning trial courts to "refrain from entering [the] fray if it turns out that the [plaintiffs'] position would require a choice between experts"). That the sharp-tailed grouse can nest in more heavily grazed areas misses the point since the Forest Service seeks to improve the habitat overall. The index was a reasonable tool among others employed and does not render the chosen stocking level arbitrary and capricious.
2. One-Point-In-Time Inventory
Also unpersuasive is the Grazing District's assertion that the Forest Service's reliance on a "one-point-in-time" range vegetation inventory violated the National Forest Management Act and rendered
The Grazing District claims that "inherent inadequacies of one point in time inventories as measures of overall stocking levels have been recognized by the scientific community and in court," citing Hodel, 624 F.Supp. at 1061. However, Hodel did not indicate that all one-point-in-time inventories were categorically unreliable, but that, there, the data obtained from a one-point-in-time study "was not ultimately used ... because it yielded inconsistent results." Id. Yet those inconsistencies were "due in part to an insufficient number of samples, errors in identifying plant species, and assumptions built into the model." Id. Furthermore, that conclusion was not reached by a court, but by the Bureau oil Land Management, an agency to whose decision the trial court deferred. Id.
Here, the Grazing District reveals the flaw in its argument in its first sentence: "As part of the decision making process, [the Forest Service] relied on a 1988-89 range inventory of the [Grasslands]." (Emphasis added). The Forest Service's research and data were not, however, static. The 1988-89 range inventory was supplemented with data collected from monitoring resource conditions during the period from 1985 through 1997. The Forest Service also made adjustments in the inventory to account for improvements in range condition since the original range data had been collected, upgraded pasture ratings to account for improvements in overall range condition, and increased the stocking levels accordingly.
The Grazing District refers us to the testimony of Dr. Jim Johnson of South Dakota State University to make its point that the Forest Service failed to consider the "best available information" regarding the relationship between the Grasslands' condition to stocking levels. Dr. Johnson testified:
Our standard for agency action is not one of perfection, but whether the agency acted arbitrarily and capriciously. We find that the Forest Service has not.
The Grazing District also contends that the NFMA, 16 U.S.C. § 1610, required the Forest Service "to use information available from third parties." The Forest Service argues that the Grazing District failed to raise this point in the administrative proceeding and is therefore precluded from doing so now. We need not consider arguments a party failed to raise before the agency. Downer, 97 F.3d at 1005.
However, assuming that the issue was properly raised, we have likely addressed its argument in our analysis of the one-point-in-time issue. Section 1610 states that, in carrying out her land management duties, "the Secretary of Agriculture shall utilize information and data available from other Federal, State, and private organizations and shall avoid duplication and overlap of resource assessment and program planning efforts of other Federal agencies." Although this is likely an efficiency
For the reasons we have outlined, we affirm the district court's grant of summary judgment in favor of the Forest Service.