NEPA Challenge: Meaningful Participation Required, Says 6th Circuit

This E&E News article sounds like it could apply to USFS and BLM cases. I’m not sure if it sets precedent or not. The 6th Circuit’s decision is here.

Court dismisses NEPA challenge to Mich. trail

Amanda Reilly, E&E News reporter
Published: Friday, February 23, 2018

Citizens who don’t meaningfully participate at the planning stage of a federal action forfeit their ability to later challenge the environmental review of that action, a federal court ruled today.

The 6th U.S. Circuit Court of Appeals dismissed claims by a group of local residents challenging the National Park Service’s review of a scenic trail through Michigan’s Sleeping Bear Dunes National Lakeshore.

The plaintiffs can’t bring their claims because they didn’t raise their objections when NPS issued a revised plan for the trail, Judge John Rogers wrote for the court.


13 thoughts on “NEPA Challenge: Meaningful Participation Required, Says 6th Circuit”

  1. The basic proposition isn’t new, that issues must be raised in the administrative process first to give the agency a chance to address them prior to any litigation. Forest Service notices contain boilerplate to this effect.

    What’s a little different here is that this involved failure to comment on the agency’s response to the initial comments. “(T)he Park Service meaningfully addressed Plaintiffs’ specific complaints with significant changes in the revised 2009 Trail Plan, requiring Plaintiffs either to renew their objections or otherwise to make clear to the Park Service that the revised proposal did not sufficiently resolve their objections to the 2008 Trail Plan… it was reasonable for the Park Service to believe that it had sufficiently addressed Plaintiffs’ concerns when they did not renew their objections in 2009.” I could see cases where there would be debate about whether changes made were actually “significant,” but this case seems pretty clear.

    What is interesting to me is footnote 2. It basically addresses the question of what kinds of public comments an agency would pay attention to if it wants to avoid NEPA litigation. Simply disagreeing with the proposed action won’t preserve rights to litigate under NEPA because NEPA is strictly a procedural statute. Plaintiffs have to find a procedural flaw, and raise that with the agency.

  2. Makes sense…citizens need to express their concerns at a time when the agency can address them BEFORE a final decision is made.

  3. Is this a great blog, or what? Thanks for the insights, Tony and John.

    “The plaintiffs can’t bring their claims because they didn’t raise their objections when NPS issued a revised plan for the trail…”

    And it was 6 years after the fact… Is there a “statute of limitations” on cases like this?

  4. Does this produce any type of precedent or effect for the lawsuits being filed that challenge the Bears Ears and Grnd S. reduction by groups that didn’t help establish it?

    • I am no expert, but there is no public involvement process in Monument establishment for people to weigh in on. And I think that the groups that wanted BE (helped establish it) are the same groups that are litigating, because they don’t like the reductions.

      • Thanks for the information, those groups and more are caught up in the current litigation process. I don’t think Access Fund was on the ground with the Intertribal Coalition at the proposals but they are suing now, Patagonia as well I think. I suppose that’s silver lining for having no comment period on executive authorizations in monument creation.

        • I guess my problem with that is that there is a strong relationship between “people with money” and “people who can afford to go to court” and “people who can afford to appeal”. If San Juan County is the poorest in Utah. then by using Monument designation as a process, they don’t even get a chance to comment on decisions that affect their access to public lands. It seems a bit like social injustice and a bit like what Matt Carroll used to call “domestic imperialism.”

          • Not quite following and I don’t want to hijack the thread here to turn it into a Monument discussion. Your argument is a huge part of that debate. …essentially its what alot of the locals against the monument were saying, Hatch et al argued, and ultimately what Pres. Trump used to reduce the borders. You hit the nail on the head. The counter argument (simplified) is that these lands are public, the designation keeps it that way. …I think your problem could be resolved by supporting the non-profits you resonate with and letting them do the battle.

            • The other part of this argument is “the land has always been public and will always be public” Starting in Dec. 2016, a land management decision was made to manage them differently without public input or NEPA albeit legally. Now it is divided into two parts, the new Monument and the land that went back to the previous management rules. It doesn’t change that they are still FS and BLM federal lands.

              Absentee landowners can be good, bad, or anywhere inbetween. Throughout the West, especially in counties with large proportions of the land in federal ownership, there has always been some tension between the absentee landlords (feds) and local communities. The argument is that the absentee landlords should be able to do whatever they want… basic property rights. But if it were Shell Oil and San Juan County was in Indonesia, we would feel that the landowners had some responsibility to honor the needs/desires of the local citizenry. That’s all I’m saying. Rightness of intention does not change the fact that federal power was used without even the chance to formally hear from people, nor to analyze the trade-offs, something I fundamentally believe in. No, they didn’t have to legally, but in my mind it is the right thing to do.

              • well put, and I agree. The argument may be made that the initial proposal came from locals for the monument, which is likely fuel to the fire on the BE GS debate specifically, but it still wasn’t really a formal hearing/public input session or process. I just hope the current managers continue to take care of it and the organizations the State leases it to take care of it, or are held accountable for negative changes locals may end up exposed to. …Wouldn’t want the equivalent of an environmental “bail out” when the industry messes up.


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