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Sauk Prairie Conservation Alliance v. United States Department of Interior

United States Court of Appeals, Seventh Circuit

December 12, 2019

Sauk Prairie Conservation Alliance, Plaintiff-Appellant,
United States Department of the Interior, et al., Defendants-Appellees.

          Argued May 17, 2019

          Appeal from the United States District Court for the Western District of Wisconsin. No. 17-cv-35 - James D. Peterson, Chief Judge.

          Before Ripple, Manion, and Sykes, Circuit Judges.


         The National Park Service donated more than 3, 000 acres in central Wisconsin to the state's Department of Natural Resources. The goal was to turn the site of a Cold War munitions plant into a state park designed for a variety of recreational uses. That land now makes up the Sauk Prairie Recreation Area ("Sauk Prairie Park"). The Sauk Prairie Conservation Alliance ("the Alliance"), an environmentalist group, sued to halt three activities now permitted at the park: dog training for hunting, off-road motorcycle riding, and helicopter drills conducted by the Wisconsin National Guard. The defendants include the Department of the Interior, the National Park Service, and several federal officers. The State of Wisconsin intervened.

         The Alliance invokes two federal statutes. The first is the Property and Administrative Services Act ("the Property Act"), which, among other things, controls the terms of deeds issued through the Federal Land to Parks Program, 40 U.S.C. § 550, the program that led to the creation of Sauk Prairie Park. The statute requires the federal government to enforce the terms of any deed it issues. And here, the relevant deeds provide that Wisconsin must use Sauk Prairie Park for its originally intended purposes. The Alliance argues that dog training and motorcycle riding are inconsistent with the park's original purposes because neither was mentioned in Wisconsin's initial application. So, the argument goes, the statute requires the National Park Service to enforce the deeds by taking action to end those uses. The Property Act also requires, with some important qualifications, that any land conveyed through the program must be conveyed for recreational purposes. The Alliance argues that this provision precludes military helicopter training.

         The second statute at issue is the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. The Alliance claims that the federal defendants violated NEPA by failing to prepare an environmental-impact statement prior to approving these three uses.

         The district court entered summary judgment for the defendants on all claims, and we affirm. To start, the National Park Service's approval of these three uses did not violate the

          Property Act. Dog training and off-road motorcycle riding were not explicitly mentioned in the State's initial application, but both are recreational uses and therefore consistent with the original purposes of Sauk Prairie Park. And while military helicopter training is obviously not recreational, the National Park Service included a provision in the final deed explicitly reserving the right to continue the flights, and the Property Act authorizes reservations of this kind.

         As for the NEPA claim, the Alliance failed to show that the National Park Service acted in an arbitrary and capricious manner. The agency reasonably concluded that its approval of both dog training and off-road motorcycle riding fell within a categorical exclusion to NEPA's requirements-an exclusion for minor amendments to an existing plan. Helicopter training, on the other hand, likely doesn't fall within that category. Still, the National Park Service was not required to prepare an environmental-impact statement for this use because the agency had no authority to discontinue the flights. Because the Park Service had no discretion, it was not required to prepare an environmental-impact statement.

         I. Background

         The former Badger Army Ammunition Plant was once the world's largest propellant-manufacturing facility. Years of heavy industrial use contaminated the area's soil and groundwater with asbestos, lead paint, PCBs, and oil. Plant operations ceased in 1975, and since then the Army's remediation efforts have yielded thousands of acres suitable for recreational use.

         In 2001 the General Services Administration ("GSA") prepared an environmental-impact statement assessing various uses for the site. Given the property's proximity to other recreation areas, the GSA concluded that low- and medium-intensity recreational uses-activities ranging from hiking to snowmobiling-would be most appropriate. Around the same time, then-Congresswoman Tammy Baldwin and local officials formed the Badger Reuse Committee, which recommended uses for the property.

         Three years later the Wisconsin Department of Natural Resources ("DNR") applied to acquire portions of the property through the Federal Land to Parks Program. See 40 U.S.C. § 550. As part of its application, the DNR prepared a Program of Utilization, a four-page document describing the proposal at a general level. It said that the area would be used for recreational purposes and that it would "include facilities for hiking, picnicking, primitive camping, Lake Wisconsin access and viewing, savanna and grassland restoration, environmental education, and cultural/historical interpretation." The Program of Utilization added that many local groups "shared a common goal" of converting the property into a recreation area that would include low-impact uses. But while the proposal said that the permitted activities would include these low-impact uses, it never said that the list was exhaustive. To the contrary, it explicitly stated that the DNR would prepare a more detailed "Master Plan" at a later date to "define appropriate land uses." Indeed, when the DNR wrote the Program of Utilization, it had no idea which parts of the future Sauk Prairie Park it would receive, so a detailed proposal simply wasn't possible. To give an example, the state agency did not yet know that it would receive Parcel VI, a heavily contaminated area that for decades had been used by the Wisconsin National Guard for helicopter training.

         In 2005 the National Park Service approved the application, stating that the DNR would convert the land primarily for recreational use, including the activities listed in the Program of Utilization. Over the next decade, the National Park Service began transferring the land piece by piece. Between May 2010 and February 2015, the agency executed six deeds conveying all but a few of the parcels that would eventually make up Sauk Prairie Park (we'll say more on the remaining parcels in a moment). Each of these six deeds included the following language:

[T]he property shall be used and maintained exclusively for public park or public recreation[al] purposes for which it was conveyed in perpetuity ... as set forth in the program of utilization ..., which program and plan may be amended from time to time at the request of either the Grantor or Grantee.

         In other words, each deed explicitly incorporated the DNR's Program of Utilization-subject to amendment-as a statement of the purposes for which the land was conveyed. The deeds also said that if the DNR violated this condition (or any others), the land "shall revert to and become the property of the [federal government] at its option."

         During those same years, the DNR was developing its Master Plan for Sauk Prairie Park. It released a rough draft in late 2015 and a final draft a year later. Each version proposed to permit two of the activities contested here. The first is dog training. Under the Master Plan, hunters may use a small area-roughly 2% of the park-to train their dogs; namely, they acclimate the dogs to gunshots, though the parties tell us that only blanks are used. (Relatedly, the Master Plan permits "dog trialing," a competitive event that also involves hunting dogs.) It's worth noting that the Alliance has chosen not to challenge any of the other ways in which parkgoers may bring dogs to and shoot guns in the park. For instance, no one is challenging the fact that hunting itself is permitted throughout the park during certain months of the year.

         The second contested use is off-road motorcycle riding. Six days a year up to 100 riders may use a limited portion of the bike trails at Sauk Prairie Park. The motorcycles must meet several environmental standards, including a noise restriction.

         As for helicopter training, the Master Plan was more tentative. By the time the DNR submitted its final draft, the National Park Service had executed the six deeds we've just mentioned, but it had not yet transferred Parcel VI where the helicopters land. The Master Plan did say that the DNR would support the continued use of the land for "limited training exercises." But because helicopter training is not a recreational use, the Master Plan said that it would have to be phased out "unless the VI deed includes specific language allowing future use by the [Wisconsin National Guard]."

         The Master Plan also included the DNR's state-level environmental-impact statement. The DNR concluded that dog training and off-road motorcycle riding would not have a significant effect on the environment. Most of the state agency's analysis focused on the fact that the Master Plan as a whole would improve the environment by converting a former munitions plant into a conservation-focused recreation area-in other words, that the positive effects would outweigh the negative. But the plan also included a meaningful explanation of why the DNR thought dog training and off-road motorcycle riding specifically would have a minimal impact, even when viewed in isolation. The DNR's assessment of helicopter training was less optimistic. The Master Plan noted that helicopters, if permitted, would generate substantial noise, wind, and dust, and that "[t]here is a lack of information about other potential impacts [on wildlife, ] including reproduction, physiological stresses, and behavior patterns."

         The National Park Service approved the final draft of the Master Plan and told the DNR that it would treat the document as an amendment to the Program of Utilization. The National Park Service did not, however, prepare its own environmental-impact statement before approving the plan. Instead, it prepared a short screening form in which it concluded that the changes to the Program of Utilization were categorically excluded from NEPA's requirements. According to the agency, an environmental-impact statement wasn't necessary for "[c]hanges or amendments to an approved plan, when such changes would cause no or only minimal environmental impact." Relying almost entirely on the DNR's environmental analysis, the agency concluded that the changes to the Program of Utilization would have "only minimal" environmental impact.

         After the Master Plan went into effect, the National Park Service executed two final deeds conveying what remained of the site. One included essentially the same terms as the previous six: that the DNR must use the land in ways consistent with the purposes described in the Program of Utilization, subject to amendment, and that the federal government can reclaim the land if the DNR violates that condition.

         But the final deed broke new ground. This instrument conveyed Parcel VI, the site of the helicopter exercises. Like the other seven, this deed incorporated the Program of Utilization to define the "purposes for which [the property] was conveyed." Unlike the other seven, it included a new provision:

Notwithstanding [the paragraph incorporating the Program of Utilization], if requested by the WDNR or by the Governor of the State of Wisconsin, the Wisconsin National Guard may enter into an agreement with the WDNR to utilize Parcel VI for rotary wing aviation training conducted in a manner that is consistent with [the] WDNR's approved Master Plan for the Property.

         According to e-mails between GSA and the National Park Service, the United States Army imposed this requirement. After the parcel was transferred, the DNR and the Wisconsin National Guard entered into an agreement permitting continued helicopter training on Parcel VI. The agreement also specified a limited flight path for helicopters crossing the rest of Sauk Prairie Park to reach Parcel VI. Over certain areas the helicopters may fly as low as 25 feet above the ground, while in others they must clear 500 feet.

         The Alliance is an environmental organization whose members use Sauk Prairie Park for recreational purposes. It sued the federal defendants, and the DNR later intervened. The Alliance claims that the National Park Service violated the Property Act by authorizing dog training and off-road motorcycle riding, uses that are inconsistent with the park's original purposes. The Alliance also claims that the agency violated the Act by approving helicopter training, a plainly nonrecreational use. Finally, the Alliance claims that the agency violated NEPA by failing to prepare an environmental-impact statement for these uses.

         The Alliance moved for a preliminary injunction, which the district judge denied. While the Alliance's interlocutory appeal of that ruling was pending, the judge entered summary judgment for the defendants on all claims. The judge ruled that the contested uses do not conflict with the Property Act and that the amendments to the Master Plan do in fact fall within a categorical exclusion to NEPA's requirements. We now review that final judgment on the merits.

         II. Discussion

         "We review a summary judgment de novo, asking whether the movant has shown that there is no genuine dispute as to any material fact." Kopplin v. Wis. Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019) (quotation marks omitted). Under the Administrative Procedure Act, which controls our review, we may set aside the agency's decisions only if they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). This "standard of review is a narrow one." Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quotation marks omitted). "We only must ask whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Highway J Citizens Grp. v. Mineta,349 F.3d 938, 952-53 (7th Cir. 2003) (quotation marks omitted). Regarding the NEPA claim in particular, "arbitrary and ...

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