Petition for Writ of Certiorari — Ohio Forestry Assn., Inc. v. Sierra Club
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NagF@E-OF THE CLERK
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1996
OHIO FORESTRY ASSOCIATION, INC.,
Petitioner,
Vv.
SIERRA CLUB, ef al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Of Counsel: STEVEN P. QUARLES
WILLIAM R. MURRAY Counsel of Record
AMERICAN FOREST & CLIFTON S. ELGARTEN
PAPER ASSOCIATION THOMAS R. LUNDQUIST
1111 19th Street, NW CROWELL & MORING LLP
Suite 800 1001 Pennsylvania Ave., NW
Washington, DC 20036 Washington, DC 20004-2595
(202) 624-2665
Attorneys for Petitioner
PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208
QUESTIONS PRESENTED
1. Is there a justiciable controversy on Respondents’
facial challenge to a long-term federal land use plan (the Forest
Plan for the Wayne National Forest), where that Plan does not
provide authority to engage in any ground-disturbing activity?
2. If jurisdiction exists, did the Court of Appeals err on
the following merits issues:
a. Does the Forest Service's adherence to Acts of
Congress constitute judicially remediable bias?
b. Does the National Forest Management Act in general,
and 16 U.S.C. 1604(g)(3)(F)(v) in particular, prohibit one of
the two basic systems of forest management -- even-aged
management of tree stands -- in national forests except in
"exceptional circumstances," and require that timber
production be limited to protect and preserve primitive
recreational experiences?
(i)
rr
PARTIES TO THE PROCEEDINGS
Petitioner Ohio Forestry Association, Inc. was an appellee
before the court of appeals, and an intervening defendant at the
district court level. The Chief of the United States Forest
Service within the Department of Agriculture (then Jack Ward
Thomas and currently Mike Dombeck) was the lead appellee
before the court of appeals and lead defendant at the district
court level. The other named defendants, who were appellees
in the court of appeals, are also Department of Agriculture
officials: the Secretary of Agriculture (then Mike Espy and
currently Dan Glickman), the Regional Forester for the
Eastern Region (then Floyd J. Marita and currently Robert A.
Jacobs), and the Forest Supervisor for the Wayne National
Forest (then Eurial E. Turner and currently the Acting Forest
Supervisor is Jose Zambrana). The Sierra Club and the
Citizens Council on Conservation and Environmental Control
were the appellants before the court of appeals and plaintiffs
at the district court level.
The names of the current federal officials have been
substituted pursuant to Rule 33. Pursuant to Rule 29.6,
Petitioner states that the Ohio Forestry Association, Inc. has no
parent or subsidiary corporations.
(ii)
QUESTIONS PRESENTED ........--ssesee: i
PARTIES TO THE PROCEEDINGS ...........--- ii
TABLE OF AUTHORITIES ....... 6. - eee eees v
OPINIONS BELOW .... 1... cece cere eenes l
JURISDICTION ... 1. ccc eee errr eenes l
CONSTITUTIONAL AND STATUTORY PROVISIONS 2
STATEMENT OF THE CASE ......... ss ee5> 2
REASONS FOR GRANTING THE WRIT ......... 8
I. Review Should Be Granted On The Justiciability
Issue To Resolve The Split Among Five Circuits,
To Address Constitutional Limitations,
And For Other Reasons ..........- +e seees x
Il. If Jurisdiction Exists, Review Should Extend
To Three Significant Merits Rulings
Which Also Involve Circuit Splits Or
Constitutional Limitations ..............+.+- 13
A. The Forest Service Bias Ruling ......... 14
B. The Two NFMA Rulings ............-. 18
CE. « kono wens Oh cece s ¢oH 2 Cee ee 23
Appendix A - Sixth Circuit Opinion (Jan. 21, 1997)... la
Appendix B - District Court's Summary Judgment
Opinion (March 11, 1994) .... 6... ee eee 10a
Appendix C - District Court's
Opinion (March 8, 1993) ............... 49a
Appendix F - Sixth Circuit Order Denying
Rehearing (April7, 1997) .............. 131a
Appendix G-Complaint.................. 133a
4.0 bab dew ¥iecws 1
a a ee :
16 U.S.C. 475, § 1 of the 1897 Organic
SE 147a
OP I oils o MOBS ig cic cece 147a
16 U.S.C. 528-31, The Multiple-Use
Sustained-Yield Act of 1960 .......... 148a
eh eee 150a
16 U.S.C. 1604, § 6 of the National Forest
Management Act of 1976............ 153a
(iv)
TABLE OF AUTHORITIES
CASES PAGE
Allen v. Wright, 468 U.S. 737 (1984) ........... 16
Babbitt v. Sweet Home Chapter of Communities for a
Great Oregon, 115 S. Ct. 2407 (1995) ........ 22
Bennett v. Spear, 117 S. Ct. 1154 (1997) ........ 12
Big Hole Ranchers Ass'n, Inc. v. United States
Forest Serv., 686 F. Supp. 256 (D. Mont. 1988) .. 22
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) ........... 22
Citizens for Envtl. Quality v. United States,
731 F. Supp. 970 (D. Colo. 1989) ......... 18, 21
Cronin v. United States Dep't of Agric.,
919 F.2d 439 (7th Cir. 1990) ...........4.5.. 21
FCC v. Schreiber, 381 U.S. 279 (1965) .......... 15
Florida Power & Light Co. v. Lorion,
Lite |). Serre eee 15
FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) ...... ll
Idaho Conservation League v. Mumma,
956 F.2d 1508 (9th Cir. 1992) ......... 8, 10, 18
Idaho Conservation League v. Mumma, 21 Envtl. L.
Rep. (Envtl. L. Inst.) 20666 (D. Mont. 1990),
rev'd on standing, but aff'd on merits,
956 F.2d 1508 (9th Cir. 1992) ...........5-. 4g
Kleppe v. New Mexico, 426 U.S. 529 (1976) ...... 16
Krichbaum v. Kelley, 844 F. Supp. 1107 (W.D. Va.
1994), aff'd, 61 F.3d 900 (4th Cir. 1995)....... 21
(v)
Laird v. Tatum, 408 U.S. 1 (1972) ............ 16
Light v. United States, 220 U.S. 523 (1911) ....... 16
Los Angeles v. Lyons, 461 U.S. 95 (1983) ........ 11
Lujan v. Defenders of Wildlife,
ee ee SE aba die ech see 11, 12, 16
Lujan v. National Wildlife Fed'n,
Gy CE we diowes esis buted on 12
Marsh v. Oregon Natural Resources Council,
ee 18
Motor Vehicle Mfrs. Ass'n v. State Farm Mia.,
Ge ED | 6 oes © WW Oh 6 iow st oes 15
Perkins v. Bergland, 608 F.2d 803 (9th Cir. 1979) .. 22
Renne v. Geary, 501 U.S. 312 (1991) ........... 12
Resources Lid, Inc. v. Robertson, 35 F.3d 1300
(9th Cir. 1994) ......... a tabieteees > 19, 20
Resources Lid, Inc. v. Robertson,
789 F. Supp. 1529 (D. Mont. 1991), rev'd on
standing, but affd on NFMA merits,
35 F.3d 1300 (9th Cir. 1994) .......... 9, 18, 19
Sierra Club v. Espy,
38 F.3d 792 (Sth Cir. 1994) ............ 7, 19-22
Sierra Club v. Espy, 822 F. Supp. 356 (E.D. Tex.
1993), rev'd, 38 F.3d 792 (Sth Cir. 1994) ...... 19
Sierra Club v. Marita, 46 F.3d 606 (7th Cir. 1995) . 8, 10
Sierra Club v. Robertson, 28 F.3d 753
ey ok ees oo woe k ok e's. 4, 8, 10, 20
Sierra Club v. Robertson, 784 F. Supp. 593 (W.D.
Ark. 1991), aff'd, 28 F.3d 753 (8th Cir. 1994) . 19, 20
(vi)
Sierra Club v. Thomas, 105 F.3d 248
(6th Cir. 1997) (App. A)... eee eens passim
Sierra Club v. Thomas, 845 F. Supp. 485 (1994)
(App. B), rev'd, 105 F.3d 248 (6th Cir. 1997). 1, 6, 17
Texas Comm. on Natural Resources v. Bergland,
573 F.2d 201 (Sth Cir.), cert. denied,
439 U.S. 966 (1978) .....- ee eee eens 19
Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985). . . 18
United States v. New Mexico,
438 U.S. 696 (1978) ......---50e% 2, 14, 15, 20
United States v. San Francisco, 310 U.S. 16 (1940) .. 16
Valley Forge Christian College v. Americans United
Separation of Church and State, Inc.,
454 U.S. 464 (1982) ...-- eee errr eree 12
Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc.,
435 U.S. 519 (1978) ...--- ee eee eres 16
Whitmore v. Arkansas, 495 U.S. 149 (1990)......-. 11
Wilderness Soc'y v. Alcock, 83 F.3d 386
(1ith Cir. 1996) .. 1.6.5 ee eee eeee 8, 10, 12
Wilderness Soc'y v. Alcock, 867 F. Supp. 1026
(N.D. Ga. 1994), affd, 83 F.3d 386
(1ith Cir. 1996) 2... eee eee eee 9
United States Constitution
)_ ote rere ee ieee eee ee 8-11
Ast. TV, 63.0 ccc wcrc cers rc reeeeveces 16
Administrative Procedure Act
| CT 15, 17, 18
(vii)
oy | ROR eh rr ete 2, 15
OS ake cee 3
National Environmental Policy Act,
ete a 3
National Forest Management Act of 1976
~~ SRS eres 3
tO USC, MONI) .................... 3
16 U.S.C. 1604(f)(1) and a seen ace beck bot 5
i. ieee PRG Oemnaae: 3
16 U.S.C. IGOUGKOMEMIV) ............... 18
16 U.S.C. 1604(g)(3(F) ............... 20
16 U.S.C. 1604(g)(3)(FYv) ..... 6, 7, 18, 21
Ns £56 6 eG ieee ant, x 18
ED oy Vin oWbS ede be 6 veed oc 2
Organic Administration Act of 1897
NLA USS bw UU Skid oelicn da 2, 23
Shae an SSAA nine Ae ota ge. 16
PE Mich b a ken shade onceees...., 14
so 6 i os ove ku 14
I 6 ov ko sé ss0s cla ate ant 2
110 Stat. 3009-208 (1996)................_. 19
LEGISLATIVE HISTORY
122 Cong. Rec. 33835 (Sept. 30, 1976) ......... 23
36 C.F.R. 200.2 and 200.3................. 2, 22
RSs kos oes scacecckl 3
-) £2 RG Crome 2+ pmae 20
PN 8 crc css sev tahctert 3
(viii)
SE 3
PE rh bd o'GS ode 6 Wd baw dddelde 5
ee 5, 12
OTHER AUTHORITIES
Beth Brennan and Matt Clifford, Standing, Ripeness,
and Forest Plan Appeals, 17 Pus. LAND L. REV.
ED 6 DEE UES dolcdlh clk Secccccccecee 9
Martha Colhoun and Timothy S. Hamill,
Environmental Standing in the Ninth Circuit:
Wading Through the Quagmire,
15 PUBLIC LAND L. REV. 249 (1994) ......... 10
Michael J. Gippert anc Vincent L. DeWitte,
The Nature Of Land And Resource
Planning Under The National
Forest Management Act, 3 ENVTL.
LAWYER 149 (Sept. 1996) ............... 4,9
Richard Lazarus, Forestry Advance, Wetlands Retreat,
THE ENVTL. FoRUM, March/April 1997, at 10 .. 7, 20
Murphy, Cutting Through the Forest of the
"Sind Darin ogg hewn
Circuits, 18 U. ARK. LITTLE ROCK L.J.
CCAS E Es GGG ts so 6606000 c cc 9
Note, Failing to See the Forest For the Trees:
Standing To Challenge National Forest
Management Plans, 16 Va. ENVTL. L.J. 145 (1996) . 9
Note, Loss of Protection As Injury in Fact: An
Approach to Establishing Standing to Challenge
Environmental Planning Decisions,
29 U. MIcH. J.L. REFORM 857 (1996) ......... 9
(ix)
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
OHIO FORESTRY ASSOCIATION, INC.,
Petitioner.
v.
SIERRA CLUB, ef ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
The Ohio Forestry Association, Inc., respectfully petitions
for a writ of certiorari to review the judgment of the United
States Court of Appeals for the Sixth Circuit in this case.
OPINIONS BELOW
The January 21, 1997 opinion of the Sixth Circuit Court of
Appeals reversing the grant of summary judgment to
defendants is reprinted at App. A and is reported at 105 F.3d
248. The April 7, 1997 order of the Sixth Circuit, denying
rehearing and rehearing en banc is reprinted at App. F. The
March 11, 1994 opinion of the district court granting summary
judgment in favor of defendants is reprinted at App. B and is
reported at 845 F. Supp. 485. The district court's opinion
excluding evidence going beyond the administrative record is
reprinted at App. C. The 1990 and 1992 administrative appeal
decisions affirming the legality of the Wayne National Forest
Plan are reprinted at Apps. D and E, respectively.
JURISDICTION
The court below entered its opinion and judgment on
January 21, 1997. Petitioner timely sought a panel rehearing
and rehearing en banc on March 3, 1997. This Petition is
being filed within 99 days after the April 7, 1997 denial of
2
rehearing. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
The relevant provisions of the United States Constitution,
and of the National Forest Management Act and other National
Forest System laws, are reprinted in App. H.
STATEMENT OF THE CASE
This case concerns the justiciability of a facial challenge to
a forest plan and, if jurisdiction exists, merits issues on
management of the National Forest System.
1. The National Forest System comprises over 188 million
acres of federal lands. See 16 U.S.C. 1609; 36 C.F.R. 200.2
to .3. The System is managed by the United States Forest
Service, an agency within the Department of Agriculture.
Under the 1897 Organic Administration Act, "[nJo national
forest shall be established, except . . . for the purpose of
securing favorable conditions of water flows, and to furnish a
continuous supply of timber for the use and necessities of
citizens of the United States." 16 U.S.C. 475.
The Multiple-Use Sustained-Yield Act of 1960 ("MUSY A")
States the "policy of Congress that the national forests are
established and shall be administered for outdoor recreation,
range, timber, watershed, and wildlife and fish purposes." Jd
§ 528. The broadened multiple uses were not to be exercised
"in derogation of" the purposes expressed in 16 U.S.C.
“section 475." Jd Thus, timber production remains one of
such as recreation are "secondary" to those purposes. United
States v. New Mexico, 438 U.S. 696, 707-15 (1978).
"[S]ustained yield" means achievement of "a high-level annual
3
or regular periodic output of the various renewable resources"
-- for example, by timber sales. 16 U.S.C. 531(b).
2. The National Forest Management Act of 1976
("NFMA") created a duty to prepare a "land and resource
management plan” ("LRMP" or "forest plan") for each
national forest or group of national forests. 16 U.S.C.
1604(a). The NFMA reaffirmed the multiple use mandate for
national forests. A forest plan must “provide for multiple use
and sustained yield of the products” (é.g., timber products)
from the national forest "in accordance with the Multiple-Use
Sustained-Yield Act." Jd § 1604(e)(1).
3. The 36 C.F.R. Part 219 regulations explain forest
planning (§§ 219.10 to .12) and provide direction on particular
resources (§§ 219.13 to .27). In general, before a forest plan
is adopted, demand for the various resources is assessed,
environmental impact statements ("EISs") describing
alternative forest plans are prepared under the National
Environmental Policy Act ("NEPA").
A forest plan can remain in effect for 10 to 15 years, after
which it is replaced by a revised forest plan. 16 U.S.C.
1604(f)(5); 36 C.F.R. 219.10(g). Thus, a forest plan provides
long-term planning direction.
Typically, a forest plan and accompanying documentation
do not analyze, contain final decisions on, or authorize any
specific project in a national forest. After the forest plan is
adopted, a ground-disturbing project (such as a timber sale)
that is consistent with a forest plan may be proposed, analyzed
under NEPA and other laws, and approved by the Forest
Service. Adoption of a forest plan does not dictate the
occurrence of, nor serve as the final authorization for, any
4
ground-disturbing project (and its environmental impacts and
injuries). The Eighth Circuit summarized the Forest Service's
Position on the relationship between forest planning and later
site-specific projects, in concluding that Article III standing is
lacking on a facial challenge to a forest plan:
A forest plan, such as the Ouachita Forest Plan, is a
general planning tool. It provides guidelines and approved
methods by which forest management decisions are to be
made for a period of ten to fifteen years. Adoption of the
Plan does not effectuate any on-the-ground environmental
changes. Nor does it dictate that any particular site-
Indeed, before an environmental change can come about,
several events must transpire. First, a site-specific action
(é.g., a timber sale) must be proposed and found to be
consistent with the Plan. Next, the action is subject to
NEPA and NFMA analysis and public comment. Finally,
the Forest Service must adopt the action. Finding an
environmental injury based on the Plan alone, without
reference to a particular site-specific action, would "take[]
us into the area of speculation and conjecture."
Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994):
see App. 18a, 75a, 87a-88a; Michael J. Gippert and Vincent
L. DeWitte, The Nature Of Land And Resource Management
Planning Under The National Forest Management Act, 3
ENVTL. LAWYER 149, 155-59, 166-69, 183-86 (Sept. 1996).
A forest plan allocates lands to specific management areas,
each of which identifies a particular mix of possible uses (e.g,
a Management area featuring primitive recreation and other
compatible uses), and determines which lands are suitable for
timber production. A forest plan also provides the minimum
management prescriptions that constrain future development
5
proposals within each management area. See id; 16 U.S.C.
1604(f)(1) and (2); 36 C.F.R. 219.11, 219.14.
4. This approach to forest planning was followed for the
then-177,701 acre Wayne National Forest in Ohio. App. 12a-
13a. The draft and final EISs analyzed seven alternative forest
plans, including alternatives that emphasized primitive
recreation and de-emphasized timber production.’ The final
Wayne Forest Plan was adopted in January 1988. It represents
the mix of multiple uses that the Forest Service believed
provided the greatest net public benefits. See JA 971-75; App.
12a-13a, 71a.
5. In 1988, the Sierra Club and the Citizens Council on
Conservation and Environmental Control ("Plaintiffs") filed
administrative appeals challenging the Plan. The Wayne
Forest Plan was affirmed in decisions dated November 14,
1990 and January 14, 1992. Apps. D and E.
6. Plaintiffs then brought facial challenges to the Wayne
Forest Plan and its final EIS in a Complaint filed on March
18, 1992. The actions that Plaintiffs challenged in their
Complaint, and alleged caused them injury, were the adoption
of the Wayne Forest Plan and the issuance of the final EIS on
the Plan. App. G. Plaintiffs did not bring an "as-applied"
challenge — for example, by alleging that the Plan as applied
i 0 el 1 timber sale injured Plaintiffs.
The case was assigned to District Judge Graham of the
United States District Court for the Southern District of Ohio.
Petitioner was granted defendant-intervenor status on
' At the Sixth Circuit level, pertinent excerpts from the
administrative record were collected in a Joint Appendix ("JA"). The
Draft EIS pages describing the alternatives begin at JA 528.
6
September 4, 1992. JA 4. Judge Graham dismissed Plaintiffs’
claims on the merits in a 39-page summary judgment opinio
dated March 11, 1994. App. B. '
7. Plaintiffs appealed to the Sixth Circuit. The appeal was
briefed and argued in the 1994-95 time period, but was not
decided until January 21, 1997. App. A.
8. The panel opinion by Chief Judge Martin rej the
Department of Justice's position that there was no standing or
ripe controversy on this facial challenge to a forest plan. App.
3a-4a. While the panel cited the Seventh and Ninth Circuit
opinions that found justiciable controversies in analogous
circumstances, the panel did not cite, or refute the logic of, the
Eighth and Eleventh Circuit opinions finding that no justiciable
controversy exists at the abstract level of a forest plan. See
pages 8-9, below.
merits without citing a single supporting case. Nor did the
opinion below analyze the structure or legislative history of the
statutes being construed, or support factual assertions with
Citations to the administrative record. See App. Sa-8a.
10. One unusual ruling was that Acts of Congress render
the Forest Service unlawfully biased in favor of timber
production. Judge Batchelder wrote separately because she did
"not believe that the majority's undocumented broadside
against the Forest Service is appropriate." App. 9a.
11. The other merits rulings were interpretations ions of the
NFMA. The NFMA, in 16 U.S.C. 1604(g)(3)(F)(v), directs
the Forest Service to issue regulations which:
(F) insure that clearcutting, seed tree cutting, and
shelterwood cutting, and other cuts designed to regenerate
5
an even-aged stand of timber will be used as a cutting
method on National Forest System lands only where -. .
.. (¥) such cuts are carried out in a manner consistent
with the protection of soil, watershed, fish, wildlife,
recreation, and esthetic resources, and the regeneration of
the timber resource.
a. The panel interpreted this NFMA provision to mean
that "even-aged management techniques will be used only in
exceptional circumstances." App. 6a. This interpretation had
been expressly rejected in a Fifth Circuit opinion cited by the
parties, but not addressed by the court below. Sierra Club v.
Espy, 38 F.3d 792, 799-800 (Sth Cir. 1994) (the "NFMA does
not bar even-aged management or require that it be undertaken
only in exceptional circumstances").’
b. Finally, the court below ruled the NFMA creates a
strong “protective spirit" for the “recreational value of
wilderness" and that the Wayne Forest Plan is “in excess of
the statutory limitations provided in § 1604(g)(3)(F)(v)." App.
6a, 8a. The panel seemed to conclude that the NFMA requires
the preservation of primitive recreation first and permits timber
harvesting only as a secondary matter. This view of NFMA
“protection” also had been rejected in the Sierra Club v. Espy,
38 F.3d at 800-03.
never discusses or even cites to the Fifth Circuit's earlier ruling. Nor
for that matter, does the Sixth Circuit discuss or even cite to the
Eighth Circuit's ruling on standing, from which the Sixth Circuit was
also dissenting.” Richard Lazarus, Forestry Advance, Wetlands
Retreat, THE ENVTL. FORUM, March/April 1997, at 10.
12. The Forest Service and the Ohio Forestry Association,
Inc. timely sought rehearing and rehearing en banc. Those
requests were denied on April 7, 1997. App. F.
REASONS FOR GRANTING THE WRIT
The facial challenge to this Ferest Plan did not create a
justiciable controversy. Lacking facts on how the Forest Plan
would be implemented, the court below misinterpreted the Plan
and the National Forest Management Act. To bolster its
decision, the court below impugned the integrity of an entire
federal agency. The Court should grant the writ to resolve the
well-developed split among five circuit courts on the
justiciability issue. If jurisdiction exists, three significant and
recurring merits issues, which also produce circuit splits or
I. Review Should Be Granted On The Justiciability Issue
To Resolve The Split Among Five Circuits,To Address
Constitutional Limitations, And For Other Reasons
1. The Court's guidance on the justiciability of facial
challenges to forest plans is needed to resolve a well-developed
split in the circuits. Five courts of appeal have considered this
The courts finding an Article III case or controversy at the
abstract level of a forest plan are the Sixth Circuit in the
decision under review; the Seventh Circuit in Sierra Club v.
Marita, 46 F.3d 606 (7th Cir. 1995); and the Ninth Circuit in
the 2-1 decision in Idaho Conservation League v. Mumma, 956
F.2d 1508 (9th Cir. 1992) and its progeny. The Eighth and
Eleventh Circuits have found that a facial challenge to a forest
plan presents no justiciable controversy. Wilderness Soc'y v.
Alcock, 83 F.3d 386 (11th Cir. 1996) (no ripe controversy);
9
Sierra Club v. Robertson, 28 F.3d 753, 757-60 (8th Cir. 1994)
(no Article III standing).’
The conflict is well illustrated by a comparison of the
claims in this case and the Eleventh Circuit case. See App.
13a-47a; 867 F. Supp. at 1033-35. The two cases share
virtually identical legal claims, yet the courts reached opposite
conclusions on justiciability.
2. The conflicting lower court opinions and law review
commentaries‘ fully air the competing legal and policy
rationales, but no consensus has emerged. The sheer number
of decisions and articles demonstrates that the justiciability of
facial challenges to forest plans is an important and recurring
justiciability issue presented by this Petition and avoid
perpetuation of the legal uncertainty.
. Snead Gate coum cep hae. Ount08 Gam & oo
justiciable controversy in this situation. See Wilderness Soc'y v
Alcock, 867 F. Supp. 1026 (N.D. Ga. 1994), affd, 83 F.3d 386 (11th
Cir. 1996); Resources Lid, Inc. v. Robertson, 789 F. Supp. 1529 (D.
Mont. 1991), rev'd on standing, but affd on NFMA merits, 35 F.3d
1300 (9th Cir. 1994); Idaho Conservation League v. Mumma, 21
Envtl. L. Rep. (Envtl. L. Inst.) 20666 (D. Mont. 1990), rev'd on
standing, but aff'd on merits, 956 F.2d 1508 (9th Cir. 1992).
* E.g, Gippert, 3 ENVTL. LAWYER 149 (1996); Beth Brennan and
Matt Clifford, Standing, Ripeness, and Forest Plan Appeals, 17 Pus.
LAND L. REV. 125 (1996); Note, Rtg Se Ge Roms Fe On
Trees: Standing To Challenge National Forest Management
VA. ENVTL. L.J. 145 (1996); Kelly Murphy, Cutting Through the
Forest of the Standing Doctrine: Challenging Resource Management
Plans in the Eighth and Ninth Circuits, 18 U. ARK. LITTLE ROCK L.J.
223 (1996); Note, Loss of Protection As Injury in Fact: An Approach
to Establishing Standing to Challenge Environmental Planning
Decisions, 29 U. MICH. J.L. REFORM 857 (1996).
10
a. As one example of the conflict in legal rationales,
the Sixth, Seventh, and Ninth Circuits have reasoned that
facial challenges to forest plans should be allowed because
forest plans “play a critical role in future Forest Service
actions." App. 4a; accord Mumma, 956 F.2d at 1515-16. A
forest plan's role is that it influences, but does not dictate,
later ground-disturbing actions (e.g., a timber sale). See pages
3-4, above. The Eighth Circuit has concluded that the logic of
the Ninth Circuit "may be no longer viable” in light of
Supreme Court precedents (discussed below) that a contingent
risk of injury does not confer standing, “even though the Ninth
Circuit has continued to rely upon it." Sierra Club v.
Robertson, 28 F.3d at 760; see Martha Colhoun and Timothy
S. Hamill, Exvironmental Standing in the Ninth Circuit:
Wading Through the Quagmire, 15 PUBLIC LAND L. REV. 249,
257-65, 279-80 (1994).
b. Another rationale invoked by the court below and
the Ninth Circuit (in allowing facial challenges) is that plan-
level challenges "would forever escape review" unless facial
challenges are permitted. App. 4a. The Seventh, Eighth and
Eleventh Circuits have found this reasoning unpersuasive.
Once a proposed timber sale creates the immediate and certain
factual situation required for a ripe controversy, plaintiffs "can
challenge both the site-specific action as well as the Plan-level
decisions underlying the specific action at the second [timber
sale] stage." Wilderness Soc'y, 83 F.3d at 390; see Marita, 46
F.3d at 613-14 n.5; Robertson, 28 F.3d at 759. Thus, a plan-
level challenge can be presented when an injury is imminent,
in a concrete “as-applied” setting.
3. The opinion below also conflicts with this Court's
precedents on the constitutional minima for standing and on
11
Article Il jurisdiction until a plaintiff eaten
FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The
decision below has an ipse dixit quality that jurisdiction should
exist because the court would like to review the forest plan.
The disputed action in a facial challenge (adoption of a
forest plan) typically does not cause any imminent
environmental injury or any such injury at all. See pages 3-4,
above. Accordingly, Plaintiffs lack the “imminent” and
"certainly impending" injury required for Article II] standing
when they challenge a forest plan in isolation from any timber
sale or other ground-disturbing activity that injures their
environmental interests. Lujan v. Defenders of Wildlife, 504
U.S. 555, 564-65 & n.2 (1992) (emphasis in original).
Plaintiffs are not “immediately in danger of sustaining some
direct injury as a result of the challenged” action. Los Angeles
v. Lyons, 461 U.S. 95, 102 (1983). While a forest plan
creates a risk of "future injury contingent” on the later analysis
and approval of a timber sale in an area where Plaintiffs’
members recreate, such a contingent risk of injury does "not
satisfy the requirements of Art. III." Whitmore v. Arkansas,
495 U.S. 149, 158 (1990).
Constitutional and prudential ripeness principles suggest
that judicial review not occur in the factual vacuum of a facial
challenge to a forest plan. There, it is not certain how a forest
plan will be implemented, and the plan can be misconstrued
(as we believe the Sixth Circuit misconstrued the Plan at issue
here). The NFMA does not provide for judicial review at the
abstract level of a forest plan. Review normally should wait
until the "scope of the controversy ‘has been reduced to more
12
relageable Proportions, and its factual components fleshed
out, by some concrete action.'"*
Bennett v. Spear, 117 §. Ct. 1154 (1997), does not alter
this analysis. Bennett's discussion of Art. III standing repeated
the Defenders of Wildlife requirements for a "concrete" and
“imminent” injury-in-fact. Jd at 1163. While the Bennett
Court found that an Art. II] injury could be fairly traced to the
challenged biological opinion since it “alters legal regime"
by providing an immediately effective "permit authorizing the
* Lagan vy. National Wildlife Fed'n, 497 U.S. 871, 891-94
(1990); accord Renme v. Geary, 501 U.S. 312, 320-23 (1991): Valley
Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 471-75 (1982); Wilderness
Soc'y, 83 F.3d at 390-91. Here, Plaintiffs’ key complaints were that
the Forest Plan designated 70% of the Wayne National Forest as
13
4. Settling the justiciability issue at this time is of utmost
importance. The Court's opinion would provide an answer
shortly before the next generation of forest plans is litigated.
Forest plans last for 10 to 15 years, after which they are
superseded by revised forest plans. See page 3, above. Most
of the first generation of forest plans required by the NFMA
were adopted from 1982 to 1988. The revision process has
begun or will begin shortly on many of these forest plans.
Over the next five years, 81 revised forest plans are scheduled
to be released.
If the past is prologue, many (if not most) of the revised
forest plans will be challenged in court. This Court's ruling
here would provide guidance on whether facial challenges to
forest plans are justiciable, or whether judicial review should
await the more concrete setting of a forest plan "as applied”
and implemented through a particular ground-disturbing action.
Accordingly, determining the justiciability issue in this case
would be timely, both to resolve a well-developed split among
five circuits and to provide direction on judicial review of the
next generation of forest plans.
II. If Jurisdiction Exists, Review Should Extend To Three
Significant Merits Rulings Which Also Involve Circuit
Splits Or Constitutional Limitations
As described above, Petitioner is of the view that the
Petition should be granted and this Court should reverse on
jurisdictional grounds. But, if jurisdiction is found to exist,
the Court should reverse on the merits. At this stage, the writ
of certiorari should extend to the questions presented on the
present constitutional issues and circuit conflicts on issues of
fundamental importance for the National Forest System.
14
A. The Forest Service Bias Ruling
1. The court below held the Forest Service is biased in
favor of timber production. App. 5a-8a. The panel apparently
used the bias conclusion to negate the "presumption of good
faith and regularity" usually associated with agency decisions
and, thus, to diminish the deference paid to the Forest
Service's judgments. Jd. Judge Batchelder wrote separately
to disasseciate herself from the “majority's largely
undocumented broadside against the Forest Service." App. 9a.
2. Three of the four bias rationales offered by the court
below are of an institutional nature that would infect all Forest
Service decisions. One rationale was that, because 16 U.S.C.
475 refers to “ensur[ing] a reliable timber supply, the Forest
Service has a history of preferring timber production to other
uses." App. 7a. The second rationale was that, because 16
U.S.C. 500 directs "sharing of timber proceeds with the
communities” surrounding a national forest, "the Forest
Service becomes trapped" to issue timber sales as "[rJural
constituencies may provoke politicians to place pressure on the
Forest Service to sustain that revenue." /d. The third
rationale was that the "Forest Service budgeting process, which
allows the Forest Service to keep a percentage of the funds it
realizes from timber sales [pursuant to 16 U.S.C. 576-576d],
provides an incentive for the Forest Service to sell timber
below cost or at a loss." Jd. In effect, the court below held
that an agency's adherence to Acts of Congress constitutes
judicially remediable bias. This remarkable holding deserves
review by this Court for several reasons.
a. Any suggestion of unlawful bias in favor of timber
production makes no sense in light of United States v. New
Mexico, 438 U.S. 696 (1978). There, the Court held that the
primary purposes of the National Forest System are to
15
"conserve the water flows, and to furnish a continuous supply
of timber" -- the "secondary purposes" of "recreation, range,
and 'fish'" protection are "'to be supplemental to, but not in
derogation of'" the primary purposes. 438 U.S. at 707, 714-
15, quoting 16 U.S.C. 528. Since Congress intended that
national forests be managed for timber production, the Forest
Service does not act unlawfully when it follows the
congressional ordering of multiple use priorities.®
b. The court below's view that the Forest Service's
adherence to statutes constitutes judicially remediable bias
shows disrespect for two co-equal branches of government and
presents significant constitutional issues.
A fundamental aspect of the separation of powers is that,
when an agency states its reasoning in writing, a court can
only review that reasoning during the record review allowed
by 5 U.S.C. 706. See Florida Power & Light Co. v. Lorion,
470 U.S. 729, 743-44 (1986); Motor Vehicle Mfrs. Ass'n v.
State Farm Mu., 463 U.S. 29, 41-43 (1983). If a court can
find that a statutory framework renders an agency
institutionally biased and that this allows a court to disregard
the agency's stated reasoning, this would undermine basic
respect for coordinate branches of government. That
° There is a "presumption to which administrative agencies are
entitled - that they will act properly and according to law." FCC v.
Schreiber, 381 U.S. 279, 286 (1965). This presumption continues to
apply when the Forest Service disburses revenues as provided by
statute. And, since the NFMA and MUSYA delegate to the Forest
Service (and not to the courts) the responsibility for making trade-offs
among Often-conflicting multiple uses, the panel erred in imposing its
preference for the “recreational value of wilderness” on the expert
agency and the public. App. 6a; see page 22, below.
16
extraordinary proposition warrants this Court's careful
scrutiny.
The separation of powers prevents courts from becoming
"continuing monitors of the wisdom and soundness of
Executive action," as the court below has done in questioning
the wisdom of timber production. Laird v. Tatum, 408 U.S.
1, 15 (1972).’ Courts cannot engage in correction of agency
action absent a constitutional or statutory violation, which is
missing in the bias charge of the court below. See Defenders
of Wildlife, 504 U.S. at 576-77; Allen v. Wright, 468 U.S.
737, 750-52 (1984); Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 543-
48, 556-58 (1978).
Further, a court cannot override congressional direction on
the management of public lands without violating the Property
Clause (Art. IV, § 3).
The power of the public land thus entrusted to Congress is
without limitations. “And it is not for the courts to say
how that trust shall be administered. That is for Congress
to determine." [Light v. United States, 220 U.S. 523, 537
(1911).] Thus, Congress may constitutionally limit the
disposition of the public domain to a manner consistent
with its views of public policy.
United States v. San Francisco, 310 U.S. 16, 29-30 (1940);
see Kleppe v. New Mexico, 426 U.S. 529 (1976).
7 To illustrate why courts should not become monitors,
development interests could use the logic of the court below to argue
that the National Park Service is unlawfully biased in favor of
preservation due to the conservation mandate for national parks in 16
U.S.C. 1 and to the agency's retention of visitor use fees.
17
c. The Court should undertake supervisory review
because the precedents created by the court below unfairly
impugn the integrity of an entire agency and compromise the
agency's mission. The Sixth Circuit's decision now provides
a credible basis for enjoining virtually any Forest Service land
use planning decision that could be construed as favoring
timber production or any decision authorizing a timber sale.
According to the court below, the institutional "biases
undermine[] even the facial neutrality of the National Forest
Management Act” so as to render such decisions unlawful.
App. 8a.
3. The Court also should review the Wayne National
Forest “example of bias" that Wayne planners “arbitrarily
undervalufed] the recreational value of wilderness." App. 6a.
This bias claim is factually disproven by the administrative
record (which the court below declined to even cite, contrary
to 5 U.S.C. 706), and the claim lacks legal support."
* The Draft and Final EISs analyzed seven alternative forest
3 and 4 emphasized dispersed recreation and uneven-aged
management. See Draft EIS at vi-ix and Chapter 2; JA 528-71; App.
on over half of the then-177,701 acre national forest. See Wayne
Forest Plan at 4-63 to 181 (describing Management Areas 2.1, 2.2,
6.1, 6.2, 6.3, and 8.1 (comprising 42,201 acres); primitive recreation
can occur on a portion the 57,736 acre MA 3.3 as well). Thus, no
bias against primitive recreation is apparent in the scope of
alternatives considered, or in the selected Plan.
If the court below was second-guessing the dollar values the
Forest Service assigned to unpriced commodities (primitive or
dispersed recreation and developed recreation), it should have
deferred to the agency's expert opinion on this disputed technical
(continued...)
18
B. The Two NFMA Rulings
1. The court below reached two interpretations of the
NFMA, and of 16 U.S.C. 1604(g)(3)(F)(v) in particular,
which create conflicts in the circuits and which would
fundamentally alter the management of national forests.
2. The panel interpreted the NFMA to be a stringent
constraint on the timber harvesting techniques (clearcutting,
seed-tree cutting, and shelterwood cutting) that produce an
even-aged tree stand. "[E]ven-aged management techniques
will be used only in exceptional circumstances" -- the
techniques must be the "exception," rather than the "rule."
App. 6a. The Court should review this NFMA interpretation
for the following reasons.
8(.. continued)
issue. Marsh v. Oregon Natural Resources Council, 490 U.S. 360,
378 (1989); see Muanma, 956 F.2d at 1522 ("we are not in a position
to prefer ICL's view of the FS's software over the” economic inputs
employed by the Forest Service); Thomas v. Peterson, 753 F.2d 754,
762 (9th Cir. 1985); App. 41a-42a (other dismissals of recreational
value issues). Further, since a higher dollar value was assigned to
imitive or di recreation than to developed recreation, see
see ts a BOTA 5A Gn. Gs a ae ea ee
were biased. Most importantly, the dollar value debate seems to be
harmless error, not “prejudicial error,” because it did not affect the
final decision. 5 U.S.C. 706. The alternative chosen as the Wayne
was structi:red to provide greater primitive recreation. See Final EIS
at 2-8 and Record of Decision at 28-29; JA 824 and 972-73; 123a-
124a. And, if the panel's real objection was to “below-cost sales"
(App. 7a), the legal answer is that the NFMA permits below-cost
timber sales and does not require profit maximization. See 16 U.S.C.
1604(g)(3)(EXiv) and (k); Resources Lid, 789 F. Supp. at 1538;
Citizens for Envil. Quality v. United States, 731 F. Supp. 970, 988
(D. Colo. 1989); App. 30a-37a, 68a-69a.
19
a. The panel's view conflicts directly with Sierra
Club v. Espy, 38 F.3d 792 (Sth Cir. 1994). The Fifth Circuit
there held the "NFMA does not bar even-aged management or
require that it be undertaken only in exceptional
circumstances." 38 F.3d at 800.° The panel's view that even-
aged management may be employed only in “exceptional
circumstances" also conflicts with the Ninth Circuit's
conclusion that the NFMA and NEPA were not violated when
“no Plan alternative allocates less than 75% of harvest to even-
aged cutting" and with other decisions and statutes. '°
The Sixth Circuit's views on "exceptional circumstances,” on
preservation of natural values, and on Forest Service bias (and even
much of the language employed in the opinion) are the same views a
district court expressed in the Texas National Forest case, Sierra Club
v. Espy, 822 F. Supp. 356, 361-65 (E.D. Tex. 1993). However, the
Fifth Circuit reversed in an opinion which explains why the Forest
NFMA. 38 F.3d 792. The Sixth Circuit essentially adopted, sub
silentio, the Texas district court's discredited views without
mentioning the Fifth Circuit's opinion or rebutting its logic.
'° Eg, Resources Lid , 35 F.3d at 1307, aff'g, 789 F. Supp. at
1538; see also Sierra Club v. Robertson, 784 F. Supp. 593, 611
(W.D. Ark. 1991) (a court cannot “substitute its discretion for that of
the Forest Service in order to halt even-aged management"), aff'd, 28
F.3d 753, 757 (8th Cir. 1994). The Fifth Circuit has found that the
NFMA, instead of largely prohibiting even-aged management,
represents a “congressional decision to permit clearcuiting in national
forests." Texas Comm. on Natural Resources v. Bergland, 573 F.2d
201, 210 (Sth Cir.), cert. denied, 439 U.S. 966 (1978).
For several years, appropriations acts have limited “clearcutting
in hardwood stands in the Wayne National Forest" to "25 percent of
the fiscal year 1989 harvested volume." Eg, FY 1997 Omnibus
Appropriations Act, 110 Stat. 3009-208 (1996). This suggests that
(continued. ..)
20
b. This circuit conflict concerns a "fundamental issue
of forest management." Lazarus, THE ENVTL. FORUM,
March/April 1997, at 10. There are two basic systems for the
silvicultural management of a stand of trees. One is the even-
aged management system, where most trees are of the same
age-class, though normally not the same species.'' The other
is uneven-aged management, where trees are of different age-
classes. See 36 C.F.R. 219.3.
If even-aged management is allowed only in "exceptional
circumstances," the Forest Service would be largely precluded
from employing one of the two principal forms of scientific
forest management. As the district court adverted to, allowing
only uneven-aged management "would result in its own form
of monoculture: a dark high-canopy forest in which only shade
tolerant species can survive." App. 24a. Thus, the Court
should grant the Petition because a general ban on even-aged
10( | continued)
Congress did not so limit clearcutting in the NFMA. Forest Service
statistics show that less than 1500 acres of the 177,70l-acre Wayne
National Forest have been clearcut since 1988. Thus, the court below
misconstrued the Wayne Forest Plan in concluding that it caused
widespread clearcutting. This illustrates why judicial review should
not be conducted at the generalized level of a forest plan.
'! Even-aged stands of trees are created naturally by fires,
windstorms, and pest infestations. Humans replicate even-aged stands
through timber harvesting techniques that cut most of the timber in
one or two cycles. 16 U.S.C. 1604(g)(3)(F). Some valuable tree
species are shade-intolerant (they grow best in the sunny conditions
after even-aged cuts), and some wildlife species depend on the browse
habitats in young even-aged stands. See Sierra Club v. Espy, 38 F.3d
at 802; Resources Lid, 35 F.3d at 1307; Sierra Club v. Robertson,
784 F. Supp. at 608-09; App. 6a (private even-aged timber stands
provide "an abundance of diverse plant and animal life").
21
management has profound implications for the 188 million-acre
National Forest System.
3. The court below also ruled that NFMA creates a strong
“protective spirit" for the "recreational value of wilderness"
and found that the Wayne Forest Plan is "in excess of the
statutory limitations provided in § 1604(g)(3)(F)(v).” App. 6a,
8a. The Sixth Circuit seemed to reason that the NFMA
and that timber harvesting is secondary.
a. This view of the priorities among multiple uses
inverts the priorities discussed in United States v. New Mexico,
438 U.S. at 708-15. See pages 14-15, above.
b. Additionally, this aspect of the opinion below
warrants review because it creates conflicts with circuit court
opinions in several areas. The Fifth Circuit held that
§ 1604(g)(3)(F)(v) "does not mandate status quo protection” of
recreational or biotic resources -- "protection means something
less than preservation of the status quo" and the appropriate
level of protection is a "policy-oriented decision Congress
wisely left to the discretion of the experts - here the Forest
Service." Sierra Club v. Espy, 38 F.3d at 800."
"[NJational forests, unlike the national parks, are not wholly
dedicated to recreational and environmental values.” Cronin v. United
States Dep't of Agric., 919 F.2d 439, 448 (7th Cir. 1990). "So long
as Congress requires this Forest to be managed with multiple-use
principles, portions of the Forest must embody a compromise between
‘natural’ Forest conditions and the need for Forest resources” like
timber. Krichbauwmn v. Kelley, 844 F. Supp. 1107, 1119 (W.D. Va.
1994), aff'd, 61 F.3d 900 (4th Cir. 1995); see Citizens for Envtl
Quality, 731 F. Supp. at 984.
22
_ Other appellate courts have found the Forest Service is the
agency “charged with managing the ever-changing resources
of the national forests" and that a court should "defer to the
agency's determination" of the appropriate "trade-offs" among
conflicting multiple uses.’ In this important sense, the Sixth
Circuit's notion that it could freely override the expert
agency's decision on the desired mix of multiple uses is
inconsistent with the deferential review of an agency's
interpretation of a statute it administers in Chevron U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-45 (1984), and its progeny - and with the deferential
review of an agency's policy decisions under cases like Babbitt
v. Sweet Home Chapter of Communities for a Great Oregon,
115 S. Ct. 2407, 2418 (1995).
c. Allowing a court to substitute its preference for
wilderness-type management of national forests has broad
significance. it compromises Ge Forest Service's land use
discretion under MUSYA and the NFMA.™ It compromises
'3 Sierra Club v. Espy, 38 F.3d at 801-02; see Perkins v.
Bergland, 608 F.2d 803, 806 (9th Cir. 1979) (Forest Service land
allocation decisions “breathe discretion at every pore"); Big Hole
Ranchers Ass'n, Inc. v. United States Forest Serv., 686 F. Supp. 256,
264 (D. Mont. 1988) (“the Forest Service has wide discretion to
weigh and decide the proper uses within each area”).
'* The opinion below is binding within the Sixth Circuit. Since
rehearing en banc has been denied, there are no prospects for relief
in that court. The opinion below constrains management of millions
of acres within the Daniel Boone National Forest in Kentucky; the
Hiawatha, Huron-Manistee, and Ottawa National Forests in Michigan:
the Wayne National Forest in Ohio; and the Cherokee National Forest
in Tennessee. See 36 C.F.R. 200.2. The holdings on Forest Service
institutional bias and on the NFMA provide credible grounds to
(continued...)
23
the timber production purpose that 16 U.S.C. 475 sets for the
National Forest System, thereby reducing the domestic timber
supply and causing economic injuries to consumers of forest
products and to forest product companies and their employees.
Since there are reasons to believe that this judicially-imposed
shift in land management philosophy is legally unauthorized,
the Court's discretionary review is warranted.
4. As the above-cited cases indicate, the NFMA is a
frequent source of litigation. The Court's guidance on the two
to this area of law.
5. Finally, the Court should entertain review of the
NFMA issues to ensure that Congress's real intent is not side-
tracked. As Senator Hubert Humphrey stated in describing the
NFMA conference report, the NFMA "is designed to get the
practice of forestry out of the courts and back to the forests.”
122 Cong. Rec. 33835 (Sept. 30, 1976).
The Court can fulfill that intent by granting the Petition and
finding that this facial challenge to a forest plan presents no
justiciable controversy for the courts. Alternatively, the Court
could find, on the merits, that the significant constraints
imposed on national forest management by the decision below
are not authorized by the NFMA or by charges of bias.
CONCLUSION
The petition for a writ of certiorari should be granted.
14( | continued)
require additional forest planning in all these national forests, and to
enjoin timber sales. Outside the Sixth Circuit, the opinion below may
influence other courts to reach similar conclusions.
24
Respectfully submitted,
Of Counsel: STEVEN P. QUARLES
WILLIAM R. MURRAY Counsel of Record
AMERICAN FOREST & CLIFTON S. ELGARTEN
PAPER ASSOCIATION THOMAS R. LUNDQUIST
1111 19th Street, NW CROWELL & MORING LLP
Suite 800 1001 Pennsylvania Ave., NW
Washington, DC 20036 Washington, DC 20004-2595
(202) 624-2665
Dated: July 1, 1997 Attorneys for Petitioner
Ohio Forestry Association, Inc.
=
APPENDIX A
No. 94-3407
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SIERRA CLUB, ef al.,
Plaintiffs-Appellants,
Vv.
JACK WARD THOMAS, et ai.,
Defendants-Appellees ,
OHIO FORESTRY
ASSOCIATION, INC.,
Intervening
Defendant-Appellee.
Decided and Filed January 21, 1997
Before: MARTIN, Chief Judge; BATCHELDER, Circuit
Judge; COOK, District Judge.”
MARTIN, C. J., delivered the opinion of the court, in
which COOK, D. J., joimed. BATCHELDER, J. (p. 8),
delivered a separate concurring opinion.
The Honorable Julian A. Cook, United States District Judge for
the Southern District of Michigan, sitting by designation.
(la)
2a
BOYCE F. MARTIN, JR., Chief Judge. The Sierra Club
and Citizens Council on Conservation and Environmental
Control appeal the district court's order granting summary
judgment to Jack Ward Thomas, Chief of the United States
Forest Service, and officials of the United States Forest
Service, pursuant to the district court's review of the Land
Resource Management Plan for the Wayne National Forest.
For the reasons described below, we reverse and remand this
matter to the district court for further proceedings consistent
In 1988, the regional forester for the Eastern Division of the
United States Forest Service issued a decision, pursuant to the
National Forest Management Act, adopting a ten-year plan for
Ohio's Wayne National Forest. The plan designated 126,107
acres of the Wayne from which timber could be removed or
cut. During the ten-year life of the plan, 7.5 million board
feet of timber could be cut per year. The plan designated that
eighty percent of all timbering techniques would be "even-aged
management", a harvest technique aimed at creating a
regeneration of trees which are essentially the same age. In
almost all cases, the even-aged management contemplated
clearcutting of the timber. Clearcutting involves the removal
of all trees within areas ranging in size from fifteen to thirty
acres, and is thus a very sensitive public issue.
The Sierra Club appealed the regional forester's decision to
the chief of the Forest Service pursuant to the applicable
regulations. In 1990, the chief of the Forest Service denied
the Sierra Club's appeal and affirmed the plan. Pursuant to
final agency action, the Sierra Club filed this action in the
district court. Appealing the district court's order granting
3a
summary judgment to the Forest Service, the Sierra Club
argues that the Forest Service made arbitrary assumptions in
the Wayne planning process that biased the plan toward
timbering.
The National Forest Management Act was enacted as a
direct result of congressional concern for Forest Service
; . lets ahi Geb Gicalienet vila tal fucti
has hi ically of iin F Servi licies. C
was concerned that, if left to its own essentially unbridled
devices, the Forest Service would manage the national forests
as mere monocultural “tree farms." Procedurally, the Act
requires the Forest Service to develop Land and Resource
planning process was designed to curtail agency discretion and
to ensure forest preservation and productivity. Substantively,
the Act Imposes extensive limitations on timber harvesting by
restricting the use of clearcutting to situations in which
clearcutting is the optimum method for harvesting. —
First, we address the threshold issue of justiciability. The
Forest Service claims that the Sierra Club lacks standing. To
establish constitutional standing, a plaintiff first must first
suffer an injury-in-fact that is (1) concrete and particularized,
and (2) actual or imminent, not conjectural or hypothetical.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Second, the injury must be fairly traceable to the defendant's
conduct. Jd. at 560-61. Third, the injury must be redressable
by the court. /d at 561. In cases involving Land Resource
Management Plans, the most controverted standing issue is
whether the injury is imminent.
4a
A plaintiff who seeks review of a Land Resource
Management Plan must show that it will suffer personal harm
as a result of the plan. We have long recognized that injury
is not confined to economic injury; aesthetic and environmental
injuries can be embraced by this definition of personal harm.
Sierra Club v. Morton, 405 U.S. 727, 734 (1972). Land
Resource Management Plans represent significant and concrete
decisions that play a critical role in future Forest Service
actions. "To the extent that the plan pre-determines the future,
it represents a concrete injury that plaintiffs must, at some
point, have standing to challenge." Jdaho Conservation
League v. Mumma, 956 F.2d 1508, 1516 (9th Cir. 1992). If
the Sierra Club was allowed to challenge the Forest Service
plan only at the site-specific stage, then the meaningful citizen
participation contemplated by the National Forest Management
Act “would forever escape review." Jd.
The district court concluded that the Sierra Club's challenge
presented a ripe controversy. Closely related to the issue of
standing, the ripeness doctrine exists to keep the judiciary from
“entangling ~- [itself] im abstract disagreements over
administrative policies" by preventing premature adjudication.
Sierra Club v. Marita, 4 F.3d 606, 614 (7th Cir.
1995)(quoting Abbot Lab v. Gardner, 387 U.S. 136, 148-49
(1967)). The Forest Service maintains that disputes over forest
planning are not ripe for review until a site-specific action
occurs. We agree with the district court. Plaintiffs need not
wait to challenge a specific project when their grievance is
with an overall plan.
Because we find that the Sierra Club's case is justiciable, we
turn now to the merits. We give no particular deference to the
Sa
if we were the first reviewing court. Schuck v. Frank, 27 F.3d
194, 197 (6th Cir. 1994). While it is generally accepted that
federal agencies are entitled to a presumption of good faith and
regularity in arriving at their decisions, that presumption is not
irrebuttable. We would be abdicating our Constitutional role
were we simply to “rubber stamp” this complex agency
decision rather than ensuring that such decision is in accord
with clear congressional mandates. It is our role to see that
important legislative purposes are not lost or misdirected in the
vast hallways of the federal bureaucracy. Specifically, we
must decide whether the Forest Service took a hard look at the
relevant factors and reached a decision that was neither
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law.
The Sierra Club contends that the even-aged logging agenda
is illegal in that the Forest Service has not complied with the
constraints on its choice of even-aged management techniques
contained in the National Forest Management Act. In
reviewing this record, we have carefully examined the
conclusions drawn by the Forest Service to test for internal
consistency and reasonableness. Although the Forest Service
has the benefit of the presumption of good faith and regularity
in agency action, we have attempted to ascertain whether the
plan has been improperly skewed. We conclude that the
clearcutting. The resulting plan is arbitrary and capricious
because it is based upon this artificial narrowing of options.
Although it would be impractical to set forth the details of
the administrative record here, one example of bias is
6a
particularly illustrative. The Forest Service argues that its
even-aged management plan is based on evidence that
will, in turn, preserve and enhance the diversity of plant and
animal communities in the Wayne National Forest. Most
recreation does not require timber harvesting, however.
Further, as the Forest Service's own records reflect, the
Wayne is surrounded by and intermingled with privately-held
land which already contains an abundance of diverse plant and
animal life. Timbering simply does not promote the kind of
recreational activities that are in demand in the Wayne; in fact,
recreation like fishing and hiking is harmed by clearcutting.
The planners also failed to recognize that cutting is unlikely to
stimulate new and valuable forms of recreation because much
of the Wayne has already been cut or developed. In that
particular environment, clearcutting loses its value.
The National Forest Management Act mandates that the
Service ensure that even-aged management practices be used
in the national forests only when “consistent with the
protection of soil, watershed, fish, wildlife, recreation, and
aesthetic resources, and the regeneration of the timber
resource." 16 U.S.C. § 1604(g)(3)(F)(v). The National
Forest Management Act thus contemplates that even-aged
management techniques will be used only in exceptional
circumstances. Yet, the defendants would utilize even-aged
management logging as if it were the statutory rule, rather than
the exception. By arbitrarily undervaluing the recreational
value of wilderness, the Forest Service created a very distorted
picture of the Wayne National Forest. Based on false premises
such as these, the Forest Service improperly concluded that
clearcutting was necessary.
7a
It is not surprising that the Forest Service came to this
conclusion. Created, in part, to ensure a reliable timber
supply, the Forest Service has a history of preferring timber
production to other uses. Rather than being a neutral process
which determines how the national forests can best meet the
needs of the American people, forest planning, as practiced by
the Forest Service, is a political process replete with
opportunities for the intrusion of bias and abuse. Because
national forests are located near rural communities, foresters
make management decisions to support perceived needs in the
communities. By sharing timber proceeds with those
communities, the Forest Service strengthens the link between -
timber sales and the livelihoods of local constituencies. See,
Office of Technology Assessment, Forest Service Planning:
Accommodating Uses, Producing Outputs, and Sustaining
Ecosystems 46 (1992). The resulting dependency of these
communities on timber production causes over-harvesting and
destructive harvesting methods. The relationship of the Forest
Service to the timber industry also constrains the Forest
Service's planning freedom. Rural constituencies reliant on
timber sale revenues may provoke politicians to place pressure
on the Forest Service to sustain that revenue. Consequently,
the Forest Service becomes trapped: cutting off timber sales
would cause loss of employment and revenue in local
communities but continued timber sales risk over-harvesting
and below-cost sales.
The Forest Service budgeting process, which allows the
Forest Service to keep a percentage of the funds it realizes
from timber sales, provides an incentive for the Forest Service
to sell timber below cost or at a loss. See, Randal O'Toole,
Reforming the Forest Service 122 (1988). Also, to maximize
8a
its budget, the Forest Service uses expensive timber
management and reforestation techniques, such as clearcutting.
Id Again, conflicting interests lead to perverse
results: clearcutting provides the Forest Service with a higher
congressional subsidy because the Forest Service can request
may be made, not because they are in the best interest of the
American people but because they benefit the Forest Service's
fiscal interest.
Each of these biases undermines even the facial neutrality of
the National Forest Management Act. Even when there may
be more valuable uses for the land, the above biases and
constraints cause the Forest Service to manage primarily to
The public nature of the planning process and the public's
right to appeal timber sales were intended by Congress to be
a check on the Forest Service's power and discretion. Judicial
review of planning decisions is intended to be a further check.
Accordingly, in light of our examination of the structure,
legislative history, and purpose of the National Forest
Management Act we find the Forest Service has failed to
comply with the protective spirit of the National Forest
Management Act. We further find that this non-compliance is
an arbitrary act in excess of the statutory limitations provided
in § 1604(g)(3)(F)(v). The Forest Service's planning process,
therefore, was not in accordance with the law. Accordingly,
we REVERSE the district court's order for summary judgment
and REMAND this case to the district court for further
proceedings consistent with this opinion.
9a
ALICE M. BATCHELDER, Circuit Judge, concurring. I
concur in this decision because I believe that the reasoning of
the Seventh Circuit in Sierra Club v. Marita, 46 F.3d 606 (7th
Cir. 1995) is the better approach to the issues of standing and
ripeness in this matter,’ and because I agree that the record
before us supports a conclusion that the Forest Service has not
complied with the mandates of the National Forest Service
Management Act relative to even-aged management practices
in adopting the Plan. I write separately because, while I, too,
have serious questions and concerns about the management
practices and policies of the Forest Service, I do not believe
that the majority's largely undocumented broadside against the
Forest Service is appropriate. The issue before us is simply
whether the Plan was properly promulgated within the
appropriate exercise of the agency's discretion and is therefore
within the law. We conclude that it is not. Our speculation
about the motives and biases of the Forest Service, even if
accurate, is unnecessary, and therefore, ought not to be voiced
in this opinion.
' The Seventh Circuit's reasoning in concluding that the Sierra
Club had standing and that the controversy was ripe for adjudication is
essentially summed up by the court's conclusion that “[tJhe Sierra Club
is appealing the issuance of a final management plan which will, unless
amended, direct Service management activities in [the national forests at
issue.] ... The Sierra Club ‘need not wait to challenge a specific project
when their grievance is with an overall plan."" Marita, 46 F.3d at 614
(citation omitted).
10a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
The Sierra Club, et al., [Filed March 11, 1994]
vs. Case No. C2-92-249
JUDGE GRAHAM
The Sierra Club and Citizens Council on Conservation and
Environmental Control ("Citizens Council"), plaintiffs herein,
filed this action against Mike Espy, Secretary of Agriculture,
and officials of the United States Forest Service.
Plaintiffs challenge the Land and Resource Management
Plan ("the Plan") for the Wayne National Forest ("the
Wayne") and the Final Environmental Impact Statement
("FEIS") for the Plan, alleging violations of the National
Forest Management Act ("NFMA"), 16 U.S.C. § 1601-1614,
the Multiple-Use Sustained Yield Act ("“MUSYA"), 16 U.S.C.
§ 528 et seq., and the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321 et seq. This action is brought
under the judicial review provisions of the Administrative
Procedure Act ("APA"), 5 U.S.C. § 701 et seg. This matter
is now before the Court on the parties’ cross-motions for
summary judgment.
lla
Review of final agency action under NEPA and NFMA is
governed by the APA, which directs a reviewing court to
affirm final agency action unless that action is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706. See Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
The ultimate standard of review is a narrow one, and the court
is not empowered to substitute its judgment for that of the
agency, but instead it is to determine whether “the decision
was based on a consideration of the relevant factors and
whether there has been a clear error of judgment." Id. at 416.
While the agency's decisions are entitled to a presumption
of regularity, that presumption does not shield them from a
thorough, probing review. Dmuid Hills Civic Ass'n v. Federal
Highway Administration, 772 F.2d 700, 714 (11th Cir. 1985).
In reviewing NEPA compliance, the role of the court is to
ensure that the agency has adequately considered and disclosed
the environmental impacts of its actions and that its decision is
not arbitrary or capricious. Communities, Inc. v. Busey, 956
F.2d 619, 623 (6th Cir. 1992) (quoting Baltimore Gas &
Electric Co, v. Natural Resources Defense Council, Inc., 462
U.S. 87, 97-98 (1983)). Where a statute is ambiguous, review
is limited to determining whether the agency's interpretation is
based on a permissible construction of the statute, and does not
extend to matters of policy. Chevron U.S.A... Inc. v. NRDC,
Inc., 467 U.S. 837 (1984). An agency's interpretation of its
own regulations is binding on the court “unless it is plainly
erroneous or inconsistent with the regulation." United States
y..Larionoff, 431 U.S. 864, 872 (1977). Within the
parameters of the applicable statutes and regulations, the
management decision belongs to the agency, and should not be
a
12a
second-guessed by a court. Texas Committee on Natural
Resources v. Bergland, 573 F.2d 201, 210 (Sth Cir.), cert.
denied, 439 U.S. 966 (1978).
BACKGROUND
The Wayne National Forest is located in the unglaciated
Appalachian Plateau of southeastern Ohio, commonly referred
to as Ohio's Hill Country. It is bordered on the south by the
Ohio River and includes three noncontiguous units located in
the counties of Athens, Gallia, Hocking, Jackson, Lawrence,
Monroe, Morgan, Perry, Scioto, Vinton and Washington. The
gross area within the forest purchase units is 832,147 acres, of
which 21% or 177,701 acres are now actually owned by the
National Forest Service. There are many tracts of privately
The management of the national forests is entrusted to the
United States Department of Agriculture Forest Service. The
C.F.R. § 219.6, § 219.10, § 219.12. The first step is to
assessment is completed, several alternative management plans
are constructed and each is subjected to an analysis of costs,
benefits and environmental impacts, in accordance with NFMA
and NEPA. After reviewing the environmental impacts and
the cost benefit analysis, the Regional Forester for the
administrative region in which the forest is located selects the
alternative that in his opinion will "provide for multiple use
and sustained yield of goods and services from the National
Forest System in a way that maximizes long term net public
13a
benefits in an environmentally sound manner." 36 C.F.R.
§ 219.1(a). The approved plan controls all activity within the
forest for a ten-year to fifteen-year period.
The planning process for the Wayne began in 1981 and
continued over a period of five years. In August, 1986, the
Forest Service published the proposed Plan together with a
draft environmental impact statement ("DEIS") and distributed
them to the public for comment. On January 4, 1988, after
analyzing over 1,500 written comments, the Forest Service
adopted the final Plan accompanied by a record of decision
("ROD") and the FEIS.
Both plaintiffs participated extensively in the initial
planning process and in the comment period following
publication of the proposed Plan and the DEIS. Both plaintiffs
appealed the decision to adopt the Plan. The Chief of the
Forest Service issued decisions on November 14, 1990 and
January 14, 1992 denying plaintiffs’ appeals. Plaintiffs filed
this action on March 18, 1992.
SELECTION OF SILVICULTURAL SYSTEMS AND
TIMBER HARVEST METHODS
Under the Organic Act of 1897, a national forest may be
established and administered only "to improve and protect the
forest within the boundaries, or for the purpose of securing
favorable conditions of water flows, and to furnish a
continuous supply of timber for the use and necessities of
citizens of the United States." 16 U.S.C. § 475. In 1960,
Congress enacted the MUSYA, which directed the
of Agriculture to develop and administer the resources of the
national forests “for multiple use and sustained yield of the
several products and services obtained therefrom"
“recreation, range, timber, watershed and wildlife and fish”
l4a
with due consideration "to the relative values of the various
resources" and in such a way that the "periodic output" of such
resources be maintained "in perpetuity... without impairment of
the productivity of the land." 16 U.S.C. §§ 528, 529, 531.
The principles of the MUSYA were expressly incorporated
into the statutory and regulatory scheme of the NFMA. Under
16 U.S.C. § 1604(e)(1), the Secretary, in developing plans for
the National Forest System, must assure that they
provide for multiple use and sustained yield of
the products and services obtained therefrom in
accordance with the Multiple-Use
Sustained-Yield Act of 1960...and, in
particular, include coordination of outdoor
recreation, range, timber, watershed, wildlife
and fish, and wilderness; ....
Inasmuch as one of plaintiffs' major objections to the Plan is
its provision for timbering, it is appropriate to note that the
harvesting of timber is and always has been one of the
purposes of the National Forest System. The record of this
case indicates that the harvesting of timber is also an important
forest management tool.
Silviculture is that phase of forestry that deals with the
estabiishment, development, reproduction and care of forest
trees. | Webster's Third New International Dictionary
Unabridged, 1981. A silvicultural system is a management
process whereby forests are tended, harvested, and replaced,
resulting in a forest of distinctive form. 36 C.F.R. § 219.3.
Systems are classified according to the method of carrying out
the fellings that remove the mature crop and provide for
regeneration, and according to the type of forest thereby
produced. Id. In managing forest lands, there are two
systems available: even-aged and uneven-aged. Plan,
15a
Appendix, p. C-1. Even-aged management results in the
creation of stands in which trees of essentially the same age
grow together. DEIS, Appendix, p. E-7. Uneven-aged
management seeks to maintain the growth of trees through a
range of diameter or age classes. Id,, p. E-28.
Within the even-aged system, there are three recognized
harvest methods: clearcutting, shelterwood and seed tree.
Plan, Appendix, p. C-1. With even-aged harvest methods, the
intent is to maintain a mosaic of different-aged stands of
manageable size of equal age. Id., p. C-3. The seed tree
method involves harvesting all but a few well-distributed trees
of the desired species to provide seed for natural regeneration.
Id., p. C-4. Later, the seed trees themselves are harvested.
In the shelterwood method, all trees are removed in a series of
two or three cuts with the final cut being made after a
sufficient amount of desirable reproduction has become
established. Id. This method provides a partial cover which
may benefit the growth of seedlings. The clearcut method
involves the cutting of all trees, merchantable and
unmerchantable, at one time. Regeneration develops from
natural seeding and sprouting. Id.
Within the uneven-aged system, the harvest method is
selection, either single-tree or group selection. Plan, Appendix,
p. C-1. Single-tree selection entails the periodic removal of
individual trees. Id., p. C-2. In the group selection method,
group cuts, resembling small clear cuts, are made in a
checkerboard pattern creating many small openings of one-half
to two acres within the forest. Id., p. C-3.
16a
Each silvicultural system and its respective harvest methods
have advantages and disadvantages.' The selection of the
appropriate system and harvest method depends upon the
judgment of the forest planner, taking into consideration the
circumstances of the forest or subparts thereof, the goals of the
forest plan and all applicable statutory and regulatory
mandates. Clearcutting may be chosen as the method to
regenerate an even-aged stand of timber only where it is the
“optimum method," and other cuts may be used if
“appropriate, to meet the objectives and requirements of the
relevant land management plan.” 16 U.S.C. § 1604(g)(3)(F).
Timber harvests must be "carried out in a manner consistent
with the protection of soil, watershed, fish, wildlife, recreation
and esthetic resources, and the regeneration of the timber
resource.” 16 U.S.C. § 1604(g)(3)(F)(v).
The Plan divides the Wayne into fifteen management areas,
each of which has a management prescription. A management
alia in of ' nate nd
scheduled for application on a specific area to attain nultiple
use and other goals and objectives. 36 C.F.R. § 219.3. Each
management prescription specifies the silvicultural systems and
harvest methods to be applied.
The Plan provides for even-aged management on 80% of
the suitable forest land and for uneven-aged management on
the remaining 20%. ROD, p. 18. The Plan projects, but does
not require, that over the course of a decade, 5,075 acres will
be harvested under even-aged management and 2,760 acres
will be harvested under uneven-aged management. Plan, p. 4-
; For discussion of pros and cons of even-aged versus uneven-aged
management, see DEIS, pp. 4-16 to 4-32.
17a
180. The predominant even-aged management harvest method
is clearcutting. Plaintiffs argue that the Forest Service has
illegally and arbitrarily adopted even-aged management as the
routine method of vegetative management. They argue that the
Plan fails to address the environmental impacts of clearcutting
at specific locations and that it fails to address the requirement
of optimality of clearcutting on a site-specific basis. They
argue against clearcutting on the grounds that it has numerous
detrimental environmental impacts, including the building of
temporary roads and hauling logs which affect soils and plant
life, and that it changes water run-off, causes erosion and
They argue that the role of slopes and soil condition are
critical to assessing the effects of clearcutting. They note that
the forest is dominated by narrow ridges and valleys with
slopes ranging from 15% to 80% and argue that the slopes and
soil conditions present in the forest are not compatible with
clearcutting. They object to the Plan's failure to address
required mitigation techniques on a site-specific basis and
attack as arbitrary the Plan's determination that slopes of 55%
or higher are net accessible for purposes of logging.
A review of the Plan, the DEIS and the FEIS shows that
all of these concerns were addressed by the Forest Service and
that the applicable statutes and regulations provide for a further
assessment of these concerns on a site-specific basis when the
Forest Service proposes to pursue specific projects in the
forest.
Plaintiffs contend that the Plan should specify in detail the
proposed use of each and every acre of the forest. This is not
required by the NFMA or NEPA, and in any event, it would
be a practical impossibility in view of the fact that a general
land use plan required over six years to complete.
18a
The Plan is programmatic in nature. It does not propose
any specific development. Implementation of the Plan occurs
at a second stage when individual site-specific projects are
proposed and assessed. Idaho Conservation League v.
Mumma, 956 F.2d 1508, 1512 (9th Cir. 1992). The Forest
Supervisor must ensure that all projects are consistent with the
Plan. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.11(e). Further
NEPA analysis is required to evaluate the effects of a specific
project and a range of alternative actions, including a "no
action” alternative. 40 C.F.R. §§ 1502.14 (d), 1508.9 (b). In
future environmental analyses, reference is made to the Plan,
the FEIS and any subsequent environmental impact statements,
a process known as "tiering.” 40 C.F.R. § 1502.20. See
Plan, p. 5-2. A detailed analysis of specific environmental
impacts is not required when the agency has not yet proposed
the specific project that may cause the impacts. Northern
Alaska Environmental Center v. Lujan, 961 F.2d 886, 891
(9th Cir. 1992).
The Plan addresses the effects of timber harvesting on soil
and water resources, the problem of slopes and roads and
Although not conducted specifically on the
Wayne National Forest, research has repeatedly
shown the effect of clearcutting on soil and
water quality is normally within fully acceptable
limits and may be less than would be associated
with other methods of harvesting. The major
potential for soil damage would be caused by
improperly located log landings and logging
roads. With appropriate mitigating measures as
described in the standards and guidelines of the
Forest Plan, pages 4-28 to 4-38, this will not be
a major problem. Harvesting with well-
19a
planned, well-constructed, and well-maintained
channeling effect and will cause no real damage
to water resources (Kochenderfer and Aubertin,
1975).
FEIS, p. 2-17. See also DEIS, pp. 3-2 to 3-3, 4-3 to 4-4, 4-49
to 4-50; DEIS, Appendix, p. B3-9. Plaintiffs have not shown
that these general determinations are arbitrary or capricious. A
more specific consideration of these matters is properly
deferred until there is a proposal of a specific timber sale at a
The Plan provides for procedures to mitigate and prevent
erosion and water pollution. See Plan, pp. 4-28 to 4-35. See
also FEIS, p. 2-15 (discussing erosion and clearcutting).
Plaintiffs criticize the Plan for not specifying when or at what
specific location mitigation techniques are to be used and for
failing to discuss the cost of mitigation techniques. However,
the Plan contemplates that mitigation techniques will be
addressed at the time of specific timber sales and that the costs
of such techniques will be borne by the purchasers and
enforced by the contract of sale. FEIS, p. 2-18. Thus, if the
cost of mitigation renders a sale unprofitable presumably it will
not occur and there is no need to address such costs in the
Plan.
With regard to the selection of even-aged management and
clearcutting as a harvest method, 16 U.S.C. § 1604(g)(3)(F)(i)
requires the Secretary to promulgate regulations for the
development of land management plans which must include
guidelines which
insure that clearcutting, seed tree cutting, and
other cuts designed to regenerate an even-aged
stand of timber will be used as a cutting method
20a
on National Forest System lands only where —-
(i) for clearcutting, it is determined to be the
optimum method, and for other such cuts it is
determined to be appropriate, to meet the
objectives and requirements of the relevant land
Pursuant to this statutory mandate, the Secretary has
promulgated 36 C.F.R. § 219.27(b)(1), which requires that
management prescriptions in a forest plan that include
vegetative manipulation of tree cover for any purpose shall
(1) Be best suited to the multiple-use goals
established for the area with potential
environmental, biological cultural resource,
aesthetic, engineering, and economic impacts,
0 eee
being considered in this determination; ..
As applied to clearcutting, the regulation requires that it be
best suited to meet the requirements and objectives of the Plan.
"Best suited" is synonymous with “optimal.” Thus, the rule is
The Plan for the Wayne complies with the statute and the
rule. In those management prescriptions which include
clearcutting, there is a determination that clearcutting is the
optimum method to meet the objectives and requirements of
the Plan and the rationale for that determination is explained.
See Plan, Appendix C. This determination will substantially
affect future decisions and is ripe for review. Mumma, 956
F.2d at 1508. The reasons given for choosing clearcutting
include the following:
To obtain desirable natural regeneration in
central hardwood-stands, clearcutting is the
most effective method. Clearcutting normally
2la
results in more seedlings and new sprouts than
any other harvest method. Where regeneration
of oak and hickory is of primary importance,
advance reproduction of these species is
essential prior to harvesting the overstory.
(Sander and Clark, 1971) Experience has also
shown that other factors such as site quality,
aspect and slope position affect the composition
of natural regeneration. The oaks and hickories
compete better on poor, dry sites with south
and west exposure.
Clearcutting is especially appropriate for stands
where the residual trees would not be worth
retaining for a future crop, when stands have
had the best trees removed in past harvests, or
in areas which have insufficient trees to
To maintain the present diversity of tree and —
animal species and high quality hardwoods on
a sustained yield basis, it is necessary to use an
Clearcutting is optimum to regenerate the
yellow poplar type because it is the only
method which provides sufficient light to
achieve adequate stocking and growth of yellow
poplar.
The clearcut and shelterwood methods are both
appropriate for the oak-hickory type. In stands
22a é 23a
where the desired condition is the forest type assessed. However, this harvesting method
and advance regeneration is not present in does, in fact, imitate nature. Natural
adequate numbers, shelterwood may be used in clearcutting occurs as a result of wildfire, wind,
an attempt to increase the amount of desired insects and disease. We have had the
advance regeneration. The use of shelterwood opportunity to observe how Forests which
prayers dope go gery succumb to these natural forces return to
, understory control of undesired species, production. Knowledge gained from the
underplanting of oaks, or a combination of all exploitive land clearings a century ago and
these practices. Stands with a poorly stocked examining our current Forests, even-aged
overstory or of low vigor are not shelterwood Forest, help us to understand the silvicultural
opportunities. These stands will be regenerated benefits of clearcutting. Combined with the
by clearcutting to retain oak and hickory as knowledge that many species of trees will not
stand components. grow and reproduce well in uneven-aged
Where oak-hickory regeneration is not a Forests, this reassures us in our belief that
problem, clearcutting is optimum because: [7 even-aged management is the most appropriate
specific reasons are given] on much of the Wayne National Forest.
In summary, where oak-hickory reproduction is FEIS, p. 2-18.
not a problem, clearcutting is optimum. It The FEIS also notes, at p. 2-23:
offers more flexibility of location to manage
lower costs, and less risk. In nearly all cases, w alatind ete cae eae tn mes ene
regenerate naturally, grow rapidly, and help
ensure healthy future forests.
Areas harvested by clearcutting regenerate
rapidly and within 8 to 10 years are filled with
regeneration 20 to 30 feet tall. By the time
Plan, Appendix, pp. C-4 to C-7. Be an ge a
; ; were even any
The FEIS further explains the rationale for choosing time, the amount of the Forest with an “open
clearcutting in response to specific objections to the Plan's canopy” from clearcutting will be less than 10
proposed vegetative management prescriptions. See FEIS, percent even in Management Areas 3.1 and 3.2.
pp. 2-15 to 2-18 and 2-23. The open area greatly increases the capacity of
M bin dies the the Forest to support some species of wildlife.
of clearcutting have not been adequately
24a
Plaintiffs’ characterization of the consequences of even-
aged management as producing monocultural "tree farms" is
not supported by the record. The Plan indicates that
regeneration after even-aged timber harvesting will be by
natural means, not artificial planting. Plan, Appendix, p. C-4.
Natural re-seeding will provide a diverse mixture of trees just
as would occur after a forest fire or windstorm.
On the other hand, a plan which allowed no vegetative
management would result in its own form of monoculture: a
dark high-canopy forest in which only shade tolerant species
can survive and in which valuable hardwood timber rots on the
stump or on the ground. See Plan, Appendix, p. C-2; FEIS,
p. 2-23; DEIS, p. 4-27.
The Pian limits clear cuts to a maximum size of 30 acres
in management areas 3.1 and 3.2, 20 acres in management
area 3.3 and 15 acres in management area 6.1. ROD, p. 17.
The Plan incorporates standards and guidelines to lessen the
visual impact of clearcutting, including the shape and location
of openings, the retention of important vegetative features,
road location and design and disposal of logging debris. ROD,
p. 18. The Secretary's regulations require that when openings
are created by the application of even-aged management, they
“shall be shaped and blended with the natural terrain, to the
extent practicable, to achieve aesthetic, wildlife habitat, or
other objectives established in the plan." 36 C.F.R.
§ 219.27(d)(1). In response to public comments the number
of acres proposed for even-aged management was reduced by
8,375 acres. ROD, p. 18.
Plaintiffs have failed to show that the choices of uneven-
aged management as the predominate silvicultural system and
of clearcutting as the predominate harvest method were
arbitrary or unreasonable. In enacting 16 U.S.C. § 1604(g),
25a
in the National Forests and struck a delicate balance between
two extremes. It chose not to prohibit clearcutting but to
regulate it, leaving the technical management responsibility for
the application of the NFMA guidelines on the Forest Service.
"Within its parameters the management decision belongs to the
agency and should not be second-guessed by a court."
Bergland, 473 F.2d at 210.
The Plan determines that in certain management areas,
clearcutting is the optimum harvest method to meet its
objectives and requirements, but recognizes that there may be
specific sites within those areas where clearcutting would not
be appropriate. This would include sites where the slope or
soil conditions are not conducive to clearcutting, or sites where
soil or exposure is not conducive to oak-hickory regeneration.
These matters, as well as the specific environmental impacts
of a specific timbering project, will be addressed on a
site-specific basis at the time of a proposed timber sale. While
the Plan narrows the scope of future environmental analyses,
an environmental analysis will be completed for each project
which will focus on site-specific issues, alternatives and
environmental consequences unique to the project. Plan,
p. 5-2.
In ruling on the administrative appeal of the Sierra Club,
the Chief of the Forest Service explained the relationship
between the optimality determination contained in the Plan and
site-specific issues which will be addressed on a project-by-
project basis:
26a
areas of the forest to achieve specific
and final decision on the appropriateness of
even-aged management, or the optimality of
clearcutting, must be made as a site-specific
determination at the project level during Forest
Plan implementation and must follow National
Environmental Policy Act procedures.
Decision Letter, Appeal No. 2309, Docket No. 2, Nov. 14,
1990, p.6.
Plaintiffs argue that under recently adopted Forest Service
NEPA regulations, some timber sales will escape further
review.’ The regulation in question applies to timber sales of
250,000 board feet or less and is premised on the agency's
judgment that sales in such small amounts would have no
significant environmental impact. The validity of the
regulation is not an issue before the Court. Although such
sales are categorically exempted from environmental analysis
when the Forest Service determines that no extraordinary
circumstances exist, the decision to proceed must be
documented and interested and affected persons must be
notified and they have the right to appeal. 36 C.F.R. § 217.3.
The court is not persuaded that this regulation renders any
determination made in the Plan unreasonable or arbitrary.
Plaintiffs argue that there is no justification to allow any
significant timbering on the Wayne and support this argument
in part with the assertion that “for some years timbering has
been almost entirely forbidden in the Hoosier National Forest"
which until recently was jointly administered with the Wayne.
Plaintiffs’ Revised Motion for Summary Judgment, p. 24.
? Federal Register, Vol. 57, No. 182, § 31.2.
27a
There is nothing in the record to support this assertion.’ The
Hoosier National Forest is 250 miles from the Wayne in
another state, and there is nothing in the record of this case
which would support an argument that decisions reached there
would be relevant to this Court's consideration of the Plan for
the Wayne. To exclude timbering in favor of other uses would
be a violation of the MUSYA and would deprive the Forest
Service a valuable forest management device.
ALLOCATION OF LANDS THAT ARE UNSUITABLE FOR
TIMBER PRODUCTION
Title 16, U.S.C. § 1604(k) provides in part as follows:
In developing land management plans pursuant
to this subchapter, the Secretary shall identify
lands within the management area which are not
suited for timber production, considering
physical, economic, and other pertinent factors
to the extent feasible, as determined by the .
Secretary,...
Lands so identified are generally exempt from timber
harvesting for a period of ten years. Id.
Plaintiffs claim that the Forest Service failed to designate
sufficient physically unsuitable land, failed to adequately assess
the availability, cost and effectiveness of mitigation measures
necessary to prevent irreversible damage and failed to
adequately analyze the impacts of the Plan on water resources.
> After oral argument on the cross-motions for summary judgment,
counsel for defendants filed a copy of the April 8, 1991 ROD for the
Land and Resource Management Plan Amendment for the Hoosier
National Forest which provides for a timber harvest of up to 4.4 million
board feet per year.
28a
In order to implement the mandate of 16 U.S.C. § 1604(k),
the Secretary adopted 36 C.F.R. § 3219.14, which provides
the criteria for identifying lands which are not suited for
wma? The criteria for physical unsuitability
: (1) the land is not forest land*; (2) technology is not
saiehth $e snihis eitaes Aaa nA e
irreversible resource damage to soil productivity or watershed
conditions; (3) there is not reasonable assurance that such lands
can be adequately restocked; and (4) the land has been
withdrawn from timber production by an act of Congress, the
Secretary of Agriculture, or the Chief of the Forest Service. 36
C.F.R. § 219.14(a)(1)-(4).
The forest planners found that available technology could
ensure timber production on 169,215 acres of the Wayne
without irreversible resource damage to soils productivity, or
watershed conditions. Plan, p. 4-7; DEIS Appendix,
pp. B3-B37. The Plan contemplates that the effects of timber
harvesting will be controlled by the design of timber sale areas
using standards and guidelines that will adequately protect
these resources. See Plan, pp. 4-28 to 4-38 and Appendix F;
FEIS, p. 2-17. The Plan identifies the technology to be used
in preventing irreversible damage and provides for its
implementation. See Citizens for Environmental Quality v.
United States, 731 F. Supp. 970, 985 (D. Colo. 1989). The
Plan's standards and guidelines generally limit roads to slopes
no greater than 35%, provide soil sensitivity standards for
various logging activities, and require watershed protection
measures such as filter strips in which no earth-disturbing
* Forest land is defined gene.ally as land which is at least 10%
occupied by forest trees. See 36 C.F.R. § 219.3.
29a
activities will occur unless special techniques are used to
minimize potential detrimental effects. Id. As noted above,
a separate environmental analysis will be conducted at the time
of any proposed timber sale. The forest planners concluded
that available techniques would control soil and watershed
impacts from timber harvesting to the point of insignificance.
DEIS, p. 4-3, Table 4-1. Plaintiffs have not shown that this
determination was arbitrary or capricious.
The Court rejects the plaintiffs’ claim that the forest
planners were required to estimate the cost of available
technology in order to determine if it is “available” within the
meaning of 36 C.F.R. § 219.14(a)(2). Plaintiffs’ reliance on
Robertson v. Methow Valley Citizens Council, 490 U.S. 332
(1989) is misplaced. Robertson involved a special use permit
authorizing the development of a major ski resort in the
Okanogan National Forest, not a programmatic plan for the
entire forest. The cost of mitigation measures is site-specific.
The cost of mitigation measures is borne by the purchaser.
FEIS, p. 2-18. If the cost of required mitigation measures at
any specific site renders the timber sale unprofitable, then it is
safe to assume that it will not occur. The Forest Service's
interpretation of 36 C.F.R. § 219.14(a)(2) is not plainly
erroneous or inconsistent with the regulation. Larionoff, 431
U.S. at 872.
Plaintiffs claim that the record "is totally lacking in any
meaningful or adequate analysis of water quality related
issues." Plaintiffs’ Revised Motion For Summary Judgment.
However, as noted earlier, the forest planners did consider the
impact of timber harvesting on watershed quality and
concluded that it would not cause irreversible resource
damage. The Plan includes forest-wide guidelines and
procedures for the protection of water and soil resources. See
30a
Plan, Chapter 4. The DEIS describes the quality of the
surface water in the forest and the types of pollutants that
impact those waters. DEIS, p. 3-10. The DEIS also
recognizes that water quality may be affected by timber
harvesting and the development of recreation facilities,
structures and roads. DEIS, p. 4-86. The Plan provides for
the monitoring and evaluation of these management activities.
Plan, p. 5-3. This level of documentation is adequate for a
proyrammatic forest plan. Plaintiffs have asked the Court to
revisit its ruling on the need for detailed information on such
site-specific developments as the construction of a sewage
treatment facility. See Memorandum Opinion and Order,
March 8, 1993, p. 14. The Court will adhere to the position
taken in its earlier order for the reasons stated therein. When
a programmatic EIS is prepared, “site-specific impacts need
not be fully evaluated until a ‘critical decision’ has been made
to act on site development." California vy. Block, 690 F.2d
753, 761 (9th Cir. 1982). See also Lujan, 961 F.2d at
890-891.
Plaintiffs claim that in authorizing below-cost timber sales
defendants have violated the economic suitability requirement
of § 1604(k). They claim that defendants improperly allowed
timber harvest levels to determine whether land was included
in the suitable timber base. They argue that § 1604(k) requires
that economically unsuitable land be identified and removed
from the timber production base prior to the selection of
harvest levels, and they assert that the Secretary's regu'ations
on economic suitability are in coxflict with § 1604(k).
Section 1604(k) does not impos a strict economic test for
the suitability of timbering. The statute requires forest plans
to identify lands which are not suitable for timber production
considering economic “and other pertinent factors to the extent
8la
feasible, as determined by the Secretary." Section 1604(k)
does not identify the specific economic factors to be considered
in determining which lands are not suited for timber
production but leaves that to the determination of the
Secretary. While § 1604(k) makes it clear that Congress
intended economic factors to be a consideration in determining
whether land is suitable for timber production, it is likewise
clear that Congress did not require that economic factors alone
should be determinative. The statute vests the Secretary with
broad discretion tz consider a variety of possibly conflicting
factors in determining whether an area is suitable for timber
production. Congress allowed the agency to choose its own
method for balancing physical, economic and other
considerations in determining the suitability of lands for timber
production. Acting pursuant to this broad grant of discretion,
the Secretary adopted criteria for economic unsuitability in
36 C.F.R. § 219.14.
Pursuant to 16 U.S.C. § 1604(h), the Secretary was
required to appoint a committee of scientists to provide advice
and counsel on the guidelines and procedures for land
management plans. The committee concluded that § 1604(k)
did not require timber sales to meet specific economic criteria,
but implied congressional concern that timber harvesting
should not take place where “by some rule of reason public
benefits were less than production costs." 44 Fed. Reg. 26,630
(1979). The committee recommended cost benefit criteria to
be applied before the development of plan alternatives. The
Secretary adopted the committee's cost-benefit criteria, but
chose to apply them as part of the planning process outlined in
36 C.F.R. § 219.14.
The regulation provides a two-stage analysis for economic
suitability. The first stage, contained in 36 C.F.R.
32a
§ 219.14(b), determines the financial costs and economic
benefits of a proposed management prescription. The second
stage is a flexible analysis which estimates the indeterminate
values of non-economic benefits such as aesthetics and
recreation. The goal of the two-stage analysis is to exclude
lands for timber production if they are not "cost-efficient" in
meeting the overall plan objectives. "Cost efficiency” includes
consideration of both monetary and non-monetary costs and
benefits. Under 36 C.F.R. § 219.14(c)(3), lands must be
tentatively identified as not appropriate for timber production
where the “lands are not cost-efficient, over the planning
horizon, in meeting forest objectives, which include timber
production."
Plaintiffs’ tet the ud iderati
of production goals as part of this determination is not well
founded. See Citizens For Environmental Quality, 731
F. Supp. at 988. Plaintiffs’ argument that the determination of
economic suitability must occur before the development of plan
alternatives likewise fails. It is within the Secretary's
discretion to apply the economic suitability test at the planning
Stage.
The interpretation put on a statute by the agency charged
with administering it is entitled to deference. Federal Election
Comm'n v. Democratic Senatorial Campaign Comm., 454
U.S. 27, 31-32 (1981). A court should follow the construction
of a statute by those charged with its execution unless there are
compelling indications that it is wrong. Michigan United
Conservation Clubs v. Luian, 949 F.2d 202, 206 (6th Cir.
1991), quoting Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 381 (1969).
_ The forest planners determined that the total net forest area
was 176,787 acres. Of that area, 169,215 acres were
33a
determined to be physically suitable for timber production.
After applying the cost-efficiency analysis, another 43,108
acres were removed from the timber base leaving 126,107
acres as suitable for timber production. This is about 75% of
the total net forest area. ROD, p. 19. This was a reduction
from the previous plan which had identified 166,000 acres as
suitable. ROD, pp. 18-19. The forest planners determined
that the maximum allowable sale quantity (ASQ) would be
7.5 million board feet ("MMBF") per year, a reduction from
9.7 MMBF in the previous Plan. Id. The ASQ does not
determine the actual amount of timber which will be sold but
sets the upper limit for the plan period. The actual amount of
timber sales may be less and will depend on several
unpredictable factors, including the budget of the Forest
Service, the market for wood products and other conditions
which may limit the practicality of offering sales at levels
developed in the Plan. Decision Letter, Appeal No. 2813,
Docket No. 2, January 14, 1992, p. 9 (hereinafter "Citizens
Council Appeal Decision"). See ROD, pp. 18-19. The ASQ
of 7.5 MMBF is well below the estimated long-term sustained
yield capacity of the forest and is only 40% of current timber
industry demand. Id., ROD, p. 19. The Plan has a lower
level of timber harvest than some of the alternatives
considered. Id. There is no evidence that the forest planners
gave undue weight to timber production goals in the suitability
analysis or that they capitulated to timber industry interests.
The justification for below-cost sales is set forth in the
ROD, p. 20-21, as follows:
To accomplish the Plan's goals and the Forest's
desired future condition requires treatment of
the vegetation. Commercial timber harvest has
traditionally been the preferred method to
iy
7
i
i
i
e
5
z
e
4
2
BREE
2
use in the long run. By providing for a variety
35a
of tree species, age and size in timber stands,
the Forest Service can achieve and maintain a
forest less susceptible to insects and disease.
A variety of wildlife habitats are provided by a
diversity of timber stand age classes and tree
species. Timber sales are the most
economically viable means of achieving desired
plant and animal diversity. Our publics put
high values on wildlife-associated recreation and
the visual amenities of the Forest. If these
benefits were provided through a method other
than commercial timber sales, costs would be
significantly higher and would eliminate returns
to the Treasury. If the visual, wildlife, and
recreation benefits were added to the returns to
the Treasury, timber sale benefits would
substantially exceed the costs.
See also DEIS, pp. 2-77 through 2-87. Plaintiffs have not
shown that the cost benefit analysis supporting the planned
timber sales in the Wayne was arbitrary or capricious.
Plaintiffs have made reference to the July 31, 1985 decision
of Douglas W. MacCleery, Deputy Assistant Secretary of
Agriculture, in the matter of the review of the administrative
decision of the Chief of the Forest Service related to the
administrative appeals of the Forest Plan and Environmental
Impact Statements for the San Juan National Forest and the
Grand Mesa, Uncompahgre, and Gunnison National Forests
("San Juan/GMUG").’ The MacCleery decision found that the
planning documents provided inadequate information on the
5 Sometimes referred to variously as the “MacCleery decision” or
the “San Juan decision.“
36a
economic implications of continuing and increasing a timber
sales program where costs substantially exceed revenues. In
rejecting the plaintiffs' administrative appeals in the instant
case, the Chief of the Forest Service found that the MacCleery
decision did not apply to the Wayne because the Plan does not
increase but decreases the timbering program. He also found
that the planning documents for the Wayne did address many
of the economic factors noted in the MacCleery decision.
Citizens Council Appeal Decision, p. 7. The Court further
notes that the MacCleery decision was based at least in part on
concerns about the fact that the San Juan/GMUG plan reduced
economic efficiency. Here, while the present net value of the
Plan is 10% less than the former Plan, the decrease is
attributed not to timber harvesting but to imcreases in
semi-primitive recreation areas and uneven-aged management,
which plaintiffs advocate. See DEIS, p. 2-97. It appears that
the Chief of the Forest Service reasonably interpreted the
MacCleery decision and his interpretation of the agency's prior
ruling is entitled to deference. Furthermore, the Regional
Forester has sufficiently explained why the Plan maximizes net
public benefits even though it includes below-cost timber sales.
Plaintiffs claim that the forest planners allowed the fifth
decade harvest level to dictate the timber base and that this
violates the Secretary's suitability regulation. The Plan, Table
4-1, indicates that the fifth decade timber harvest level is a
projection based on the increasing maturity of the forest over
the next fifty years. See FEIS, p. 2-21. It is not apparent to
the Court that this projected output controlled the planners’
determination of the suitable timber base. Even if it did, the
Court is not convinced that this would be arbitrary or
capricious or contrary to the statutes or the regulations. The
amount of suitable timber base does not represent the amount
of timber which will be harvested. As noted above, the
37a
amount of timber that cap be harvested is limited by the ASQ
and the actual amount harvested will be determined by
budgets, market factors and other conditions. See infra, p. 24.
If the suitable timber base exceeds the amount required to meet
the timber production goals of the Plan, that appears to be of
little consequence except to give the Forest Service greater
latitude in determining just where in the forest the timber
harvests will occur. This approach seems consistent with the
use of timber harvesting as a forest management tool.
CONSIDERATION OF A BROAD SET OF
ALTERNATIVES
Plaintiffs argue that the alternatives proposed in the
planning process did not present a broad set of alternatives for
consideration and review as required by the applicable statutes
and regulations. Plaintiffs specifically allege that the
alternatives proposed did not present a sufficiently broad set of
alternatives for the range of timber base, length of rotational
period of timber harvests and the provision of semi-primitive
recreation. None of these arguments were raised in plaintiffs’
administrative appeal. The only objection raised there
regarding an insufficient range of alternatives related to the
forest road system. See Citizens Council Statement of
Reasons, pp. 40-43; Citizens Council Appeal Decision, pp. 11,
12. Claims based upon issues which have not been addressed
in the administrative appeal are barred. Cisternas-Fstay vy.
Immigration and Naturalization Service, 531 F.2d 155 (3d Cir.
1976); Getty Oil Co, v. Clark, 614 F. Supp. 904, 921
(D. Wyo. 1985) (court may not consider contentions that were
not presented in the administrative proceeding below).
However, in the interest of judicial economy, the Court will
nevertheless address the merits of these newly raised
arguments.
38a
Alternatives prepared for consideration in an Environmental
Impact Statement ("EIS") are intended to provide a broad
range of reasonable management scenarios for the various uses
of the forest. See 36 C.F.R. § 219.12(f). "The primary goal
in formulating alternatives, besides complying with NEPA
procedures, is to provide an adequate basis for identifying the
alternative that comes nearest to maximizing net public
benefits, consistent with the resource integration and
management requirements" of the NFMA regulations. Id.
The purpose of a forest plan and supporting EIS is to develop
overall guidance for management of all multiple-use resources.
Citizens for Environmental Quality, 731 F. Supp. at 977. The
alternatives are not intended to focus on specific outputs such
as timber production or a specific form of recreation; instead,
they are intended to "provide different ways to address and
respond to the major public issues, management concerns, and
resource opportunities identified during the planning process."
36 C.F.R. § 219.12(f)(4). Seven alternative plans were
considered. They are described in general in the DEIS as
The DEIS identified eleven major public benefits which
were varied to provide a wide range of benefits. DEIS, p.
2-14. Other benefits that were not considered to be major
issues were also varied. Id. The alternatives are described
and compared in the DEIS. DEIS, pp. 2-20 to 2-62. In
alternative 1, 97% of the forest is allocated to even-aged
management with a mixture of 80-year and 120-year rotation.
Alternative 2 assigns 97% of the forest to even-aged
management with a 120-year rotation. In the case of
alternative 3, which became the Plan, 18% of the forest is
allocated to uneven-aged management, 30% is allocated to
even-aged management with an 80-year rotation, 33% is
allocated to even-aged management with a 120-year rotation
and 15% is allocated to semi-primitive recreation with a
mixture of even-aged management with a 120-year or 160-year
rotation and natural forest with no timber harvest. In
alternative 4, 93% of the forest is allocated to uneven-aged
management. Alternative 5 allocates 42% of the forest to
uneven-aged management, 40 % to even-aged management with
an 80-year rotation, and 25 % to semi-primitive, non-motorized
recreation with a mixture of even-aged management with a
120-year rotation and natural forest with no timber harvest.
Alternative 6 assigns 72% of the forest to uneven-aged
management with an 80-year rotation, and 25% to even-aged
management. Alternative 7 is a low intensity management
option with a timber base of only 15,588 acres, in which 75%
40a
of the forest is assigned to even-aged management and 22 % is
assigned to semi-primitive non-motorized recreation with a
mixture of even-aged management with a 120-year rotation and
natural forest with no timber harvest. The amount of land
Classified as suitable timber land ranges from 17,878 acres in
alternative 7 to 147,742 acres in alternative 6. DEIS,
Appendix B, Table B3-9.
NEPA requires that the EIS set forth only those alternatives
sufficient to permit a reasoned choice. Life of the Land v.
Brinegar, 485 F.2d 460, 472 (9th Cir. 1973), cert. denied, 416
U.S. 961 (1974). NEPA does not require an agency to
consider alternatives that do not achieve the purpose of the
proposed action. Thus, the focus of the Court's inquiry is
whether the agency adequately considered alternatives
"reasonably related to the purposes of the project." Northwest
844 F.2d 588,
593 (9th Cir. 1988). The Court concludes that the alternatives
described in the DEIS provide an adequate basis for identifying
the alternative that comes nearest to maximizing public
benefits, as required by NFMA regulations. The Court
concludes that the Forest Service considered a reasonable
range of alternatives as required by NEPA.
USE OF THE FORPLAN COMPUTER MODEL
Plaintiffs criticize the manner in which the forest planners
used FORPLAN, a computer program designed for use in
forest planning. The Court has reviewed plaintiffs’ arguments
regarding the use of FORPLAN but finds no support in the
record for the conclusion that it resulted in any decisions
which were arbitrary or unreasonable. Plaintiffs contend that
arbitrary and capricious assumptions regarding the recreation
values of timbering were input into the FORPLAN model
which caused the program to assume that timbering was
4la
necessary for recreation. They assert that this error can be
demonstrated by studying the FORPLAN computer run of
"Max PNV* market" and "Max PNV assigned.” Plaintiffs
dispute the forest planners' assumptions about recreation
values, claiming that they overestimate the benefits to
recreation from timbering. The DEIS indicates that recreation
values used in the planning process were based upon the 1980
RPA National Assessment, a document compiled by the
Secretary of Agriculture every ten years, which contains facts
and analyses to develop and guide public and private forest and
rangeland policies and programs. See DEIS, Appendix,
p. B4-13 and Glossary. Recreation values developed at the
regional level for the 1980 RPA Assessment were used to
estimate the wildlife and recreation values used in the
FORPLAN model. DEIS, Appendix, p. B4-13 and Table
B4-6. There is nothing in the record to support plaintiffs’
argument that these values are arbitrary and capricious. There
is no evidence that they are based on inadequate research and
analysis, or that their validity is otherwise undermined.
Plaintiffs object to the planners’ failure to consider the
greater value of semi-primitive non-motorized recreation in the
Wayne because of the limited opportunity for such recreation
in southeastern Ohio. However, the planners recognized that
semi-primitive recreation in the Wayne should be valued
* PNV or present net value is the difference between the dollar
value of outputs resulting from management activities and the costs of
those management activities, discounted to present value. See 36 C.F.R.
§ 219.3. Sin Sere nae oe nee SU © CamgttD
economic benchmarks for the of outputs that have an established
market price (“market PNV™") such as timber and developed recreation
and the PNV of outputs with an assigned market price (assigned PNV)
such as dispersed recreation. 36 C.F.R. 219.12 (e\1)(iii).
42a
higher than indicated in National Willingness to Pay studies
and included the difference in the category of non-priced
benefits. See DEIS, Appendix, p. B4-17.
DIVERSITY
Plaintiffs argue that the Plan fails to provide for diversity
of plant and animal communities as required by the NFMA
and its regulations. They argue that clearcutting threatens
wildlife diversity, and that proper consideration of diversity of
plant and animal communities requires preservation of old
growth and mature forest areas as opposed to early
successional conditions which occur under even-aged
management. Under 16 U.S.C. § 1604(g)(3)(B), the
regulations for land use plans must:
provide for diversity of plant and animal
communities based on the suitability and
capability of the specific land area in order to
meet overall multiple-use objectives, and within
the multiple-use objectives of a land
management plan adopted pursuant to this
section, provide, where appropriate, to the
degree practicable, for steps to be taken to
preserve the diversity of tree species similar to
that existing in the region controlled by the
plan;
The committee of scientists formed to advise the Secretary
on the formulation of the NFMA guidelines concluded that it
was impossible to write specific regulations which would
provide for diversity. The scientists stated:
Provision for "diversity" as required by NFMA
is one of the most perplexing issues dealt with
in the draft regulations. We believe it is
43a
impossible to write specific regulations to
r ide for" diversity.
44 Fed. Reg. 26600-01. The regulation ultimately adopted by
the Secretary, contained in 36 C.F.R. § 219.26, provides as
follows:
Forest planning shall provide for diversity of
plant and animal communities and tree species
consistent with the overall multiple-use
objectives of the planning area. Such diversity
shall be considered throughout the planning
data making possible the evaluation of diversity
in terms of its prior and present condition. For
each planning alternative, the interdisciplinary
team shall consider how diversity will be
affected by various mixes of resource outputs
and uses, including proposed management
practices. (Refer to § 219.27(g).)
The text of 36 C.F.R. § 219.27(g) provides in part:
Management prescriptions, where appropriate
and to the extent practicable, —
enhance the diversity of plant and animal
communities...so that it is at least as great as
that which would be expected in a natural forest
and the diversity of tree species similar to that
existing in the planning area. Reductions in
diversity of plant and animal communities and
tree species from that which would be expected
in a natural forest or from that similar to the
existing diversity in the planning area, may be
prescribed only where needed to meet overall
44a
Although the natural forest is used in the regulations as one
point of reference for evaluating diversity, the regulations do
not imply that diversity can only be achieved by attempting to
recreate the conditions of the natural forest.
The Secretary's regulations do not require the planners to
use any particular method in their analysis of diversity; rather,
they focus on the measurement of the impacts of the proposed
management practices on the inventoried flora and fauna of the
forest. They direct the Forest Service to select management
indicator species of fish and wildlife to ensure viable
populations of those species and to provide for research and
monitoring. See 36 C.F.R. § 219.19. Pursuant to the
regulations, the planners identified the principal habitat
components of all plants and animals that occur in the Wayne.
They then selected management indicator species for the Forest
which would be representative species for all habitat types and
conducted an inventory and analysis of the habitat requirements
of these species. See Plan, Appendix B; DEIS, pp. 3-19 to
3-21 and Appendix C; FEIS, Appendix E. They did all of this
with the assistance of several committees comprised of
members of nine Ohio universities, officials of the Ohio
Department of Natural Resources and biologists employed by
the United States Fish and Wildlife Service. In addition, the
planners identified “sensitive species" as a further means of
maximizing bio-diversity. See Plan, p. 4-44; DEIS, p. 3-22.
The Plan and the FEIS both set forth specific procedures and
¢.g., Plan, pp. 5-1 to 5-13.
the areas which surround the Wayne. The NFMA regulations
expressly state that the diversity requirements apply "within the
area covered by a land and resource management plan." 36
45a
C.F.R. § 219.3. Under NFMA forest plans are to govern
“units of the National Forest System.” 16 U.S.C. § 1604(a).
The Forest Service has the discretion to consider conditions
surrounding the forest but it is not required to compensate for
them in the Forest Plan. Here, the forest planners did consider
the area surrounding the Wayne. See, ¢.g., DEIS, p. C-5;
FEIS, pp. 2-24 to 2-29.
Plaintiffs criticize the Plan for failing to provide for
bio-diversity by maintaining a natural forest environment. The
Wayne, however, is not a natural forest. An estimated fifty
percent of the original forest of southeastern Ohio was cleared
by 1850. An almost complete removal of the remainder, as
well as the second growth, occurred from 1850 to 1880 to fuel
the native iron ore smelting industry which consumed all trees
down to three to four inches in diameter. A second nearly
complete removal of the second and third growth forests
occurred again for the charcoal industry between 1880 and
1950. When the Forest Service began acquiring lands for a
national forest in the middle 1930's, the Wayne consisted of
previously cleared land consisting of a mixture of reverting old
fields, eroded areas, and young cutover timber stands. DEIS,
Appendix, p. C-3. At present, only nine percent of the Wayne
consists of old growth forest. See DEIS, Appendix, Table
C-1.
The Pian, however, does provide for the development of
areas of mature growth within the forest. Management areas
3.3 and 6.1 specify a 120-year rotation. By the end of the
fifth decade, almost 30% of the forest will consist of hardwood
trees over 100 years old. DEIS, Table 4-30, p. 4-57; ROD,
pp. 33-34; FEIS, pp. 2-28 to 2-49. More than 17,000 acres
are allocated to old growth in area 6.2 where no timbering will
occur. ROD, p. 15. An additional 4,000-plus acres of old
46a
growth will occur in other management areas. Id, After 50
years there will be a total of 55,000 acres of late successional
habitat. Id. The percentage of mature forest is increased over
the life of the Plan. In response to public comment the area
of old growth forest was increased by 6,030 acres. Id.
The planners considered the effects of various timber
harvesting methods on forest diversity. See DEIS, pp. 4-18,
4-21. With respect to clearcutting, the FEIS, p. 2-17, states:
Clearcutting is the method that can slow the
change from oak-hickory to the more mesic
mixed hardwoods that is presently occurring on
the Forest because of natural forces. Oak and
hickory are important to a variety of wildlife
species on the Forest ....
Forest stands of mixed species of trees resulting
from clearcutting and changing climatic
conditions may be more desirable than many
existing stands. Research and diversity survey
data have shown that regeneration following the
clearcutting method exhibits a diversity of tree
species at least as great as what would be
expected in a natural forest or what exists
today. These Forest stands will be more
resistant to imsect and disease attacks and
The goal of diversity under the NFMA is “based on the
Suitability and capability of the specific land area” and is
specifically linked to the "overall multiple-use objectives" of
the land management plan. 16 U.S.C. § 1604(g)(3)(B).
Diversity is not the controlling principle in forest planning,
although it is an important goal to be pursued in the context of
overall multiple-use objectives. The Court concludes that the
Plan provides diversity of plant and animal communities while
47a
balancing a mix of multiple uses. While the alternatives and
mix of uses that the forest planners chose were not those
favored by the plaintiffs, the Plan does meet the requirements
of the applicable statutes and regulations, is well within the
discretion vested in the Forest Service and is not arbitrary and
capricious.
CONCLUSION
The Court concludes that in adopting the Plan for the
Wayne, the Forest Service considered all of the relevant
factors, and the Court is not persuaded that the Forest Service
has committed any clear errors of judgment in adopting the
Plan. Overton Park, 401 U.S. at 416. The Secretary's
decision is entitled to a presumption of regularity. Id. at 415;
Dmid Hills Civic A mi Fed L_thahas
Administration, 772 F.2d 700, 714 (11th Cir. 1985).
race y aterm ore Sgt
F. Supp. 1529, 1540 (D. Montana 1991), "the Forest Service
is faced with a nearly impossible task of serving many
different interests." Here, the agency, after considerable
review, analysis and public involvement, chose an alternative
which attempts to strike a reasonable balance between and
among all of the competing uses. Plaintiffs disagree with the
selected alternative but it is not for the courts to decide
whether the decision was necessarily the best one or the one
the Court would have chosen. Congress has vested the Forest
Service with the discretion to make these decisions, and its
decisions must be upheld by the courts unless they are
arbitrary, capricious or contrary to law. Plaintiffs have failed
to show that in adopting the Plan for the Wayne, the Forest
Service acted arbitrarily or capriciously or that the Plan is
contrary to law.
In accordance with the , defendants’ motion for
summary judgment is granted, and plaintiffs’ motion for
summary judgment is denied. The clerk shall enter final
It is so ORDERED.
(s/James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: March 11, 1994
49a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
The Sierra Club, et al., ) [Filed March 8, 1993]
)
Plaintiffs, ) Civil Action No. C2-92-249
)
vs. ) JUDGE GRAHAM
) MAGISTRATE JUDGE ABEL
F. Dale Robertson, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
National Forest Management Act ("NFMA"), 16 U.S.C.
§§ 1601-1614, the Multiple Use Sustained Yield Act, 16
U.S.C. § 528 et seq., and the National Environmental Policy
Act ("NEPA"), 42 U.S.C. § 4321 et seg. This action is
brought under the judicial review provisions of the
Administrative Procedure Act ("APA"), 5 U.S.C. § 1701 et
seq.
In a preliminary pretrial conference held on September 9,
1992, Plaintiffs asserted the right to present expert testimony
and requested an evidentiary hearing. Defendants objected on
the ground that the Court's role should be limited to a review
50a
of the agency's action, based upon the administrative record.
Magistrate Judge Abel directed defendants to file a motion in
limine addressing this issue and they did so on October 15,
1992. The intervenor, Ohio Forestry Association, Inc., filed
a similar motion on the same date. Plaintiffs filed their rule
that a court's review of administrative decisions is limited to
the administrative record, citing Bradley v. United States,
26 Claims Court 699 (1992). This Court is not persuaded that
NEPA cases are a special exception to the general rule,
although it may well be that because of the issues involved in
the usual NEPA case, courts may more often be inclined to
invoke one of the recognized exceptions to the general rule.
See Animal Defense Council v. Hodel, 840 F.2d 1432 (9th
Cir. 1988).
Plaintiffs principally rely on two recognized exceptions
to the general rule, which permit the Court to consider
evidence outside the record, when it is needed: (1) to explain
agency action or; (2) when it is needed to clarify technical
matters involved in the agency action. Plaintiffs contend that
they should be permitted to offer additional evidence for the
purposes of explaining or addressing technical or scientific
issues involved in the administrative record and to identify
significant environmental impacts or issues which were not
addressed by the agency.
The Sixth Circuit Court of Appeals has recognized
exceptions to the general rule limiting a court's review to the
administrative record. In Norwich Eaton Pharmaceutical, Inc.
y. Bowen, 808 F.2d 486, 489 (6th Cir. 1987), the court
quoted with approval the rule adopted by the Ninth Circuit in
Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980):
It will often be impossible, especially when highly
technical matters are involved, for the court to
In United States v. Azko Coatings of America. Inc., 949 F.2d
Nevertheless, the court further stated that a "reviewing court
‘must be careful not to allow such evidence to change the
character of the hearing from one of review to a trial do
novo."’ Id.; quoting Town of Burlington v. Dep't. of Educ..,
736 F.2d 773, 791 (ist Cir. 1984).
In determining whether or not a party relying on one of
the recognized exceptions to the general rule limiting review
to the administrative record should be permitted to offer
additional evidence outside the record, a court should consider
whether that party had an opportunity to offer the evidence
during the administrative proceedings. In Davidson v. United
States Department of Energy, 838 F.2d 850 (6th Cir. 1988),
the Sixth Circuit upheld the district court's refusal to consider
plaintiffs’ evidence which characterized the agency's validation
study as incomplete, unprofessional and not in accordance with
EEOC guidelines. In doing so the court noted, Id at
855-856.:
52a
The administrative record in this case reflects the
rulemaking process conducted by DOE with a full
opportunity for comment and response. The letters
written by DOE to plaintiffs’ union representatives,
including plaintiff Davidson, gave the plaintiffs fair
notice of DOE's proposed actions, and the public
hearing conducted as part of the rulemaking process
the validation study. Plaintiffs did not choose to
voice their current concerns during the rulemaking
process. If they had, their criticisms would have
been incorporated in the administrative record for
future judicial review. Having failed to do so, and
thus having failed to afford the Secretary an
opportunity to respond to those criticisms during
the rulemaking process, plaintiffs will not be
permitted to introduce new evidence in this judicial
proceeding of their concerns, expressed nearly three
years after the completion of the administrative
process.
53a
Other circuit courts of appeals have upheld the rejection
of evidence offered to supplement an administrative record
where the party offering such evidence had the opportunity to
raise the issue before the agency. In Havasupai Tribe v.
Robertson, 943 F.2 32 (9th Cir. 1991) the Ninth Circuit
affirmed the district court's refusal to consider evidence
outside the record under circumstances quite similar to those
present in the instant case. In Havasupai Tribe, the tribe
challenged a decision of the Forest Service approving the
development of a uranium mine in the area of the Grand
Canyon, alleging that the Forest Service did not adequately
consider the effects of such a mine on their water supply as
required by NEPA. The district court limited its review to the
administrative record and refused to admit additional evidence
tendered by the tribe. The Ninth Circuit affirmed, stating Id.
at 34:
The Tribe's most troubling claim is that there was
inadequate consideration by the government of the
effects of the mining on groundwater which
Similar considerations were a factor in the Sixth Circuit's
approval of another district court's rejection of evidence
outside the administrative record in Upiohn Manufacturing Co.
yv. Schweiker, 681 F.2d 480, 483 (6th Cir. 1982):
It is to be emphasized that Upjohn did not file with
FDA the affidavits which it now contends should
have been considered by the district court. Upjohn
could have filed a petition for reconsideration of
FDA's approval of the Boots application. 21
C.F.R. § 10.33. By that procedure the affidavits
could have been submitted to FDA and made a part
of the administrative record for judicial review.
Instead, Upjohn chose to present the affidavits for
the first time in the district court.
supplies the Tribe's water. In support of this
claim, however, the Tribe relies upon the
contentions of Dr. David Kramer, which were
made in a letter drafted after the final EIS issued.
The Tribe had some obligation to raise these issues
during the comment process. Its views were
solicited. Absent exceptional circumstances, such
belatedly raised issues may not form a basis for
reversal of an agency decision. Vermont Yankee
NRDC, 435 U.S. 519,
553-54, 98 S. Ct. 1197, 1216-17, 55 L.Ed.2d 460
(1978).
Thus, in considering whether the Plaintiffs should be
permitted to offer the evidence they now tender, the Court
54a
must consider not only whether the evidence fits one of the
recognized exceptions to the general rule that the Court's
review is limited to the administrative record, but also whether
Plaintiffs were afforded an adequate opportunity to present this
evidence to the agency during its deliberative process, and if
so, whether there are any exceptional circumstances which
excuse their failure to do so.
The management of the national forests is entrusted to the
United States Department of Agriculture Forest Service. The
NFMaA requires the Forest Service to develop long-term plans
for the management of national forests. The legislative history
of the Act indicates that one of its goals was “to get the
practice of forestry out of the Courts and back into the
forests." 122 Cong. Rec. at 33835 (1976). Under NFMA and
its regulations, the development of a forest management plan
proceeds through a series of steps which ensure public
involvement at each stage of the planning process. See 36
C.F.R. § 219.6, § 219.10, § 219.12. The first step is to
canvass the public and the agency staff to identify the issues
that the plan should address. Once that assessment is
completed, several alternative management plans are
constructed and each is subjected to an analysis of costs,
benefits and environmental impacts, in accordance with NEPA.
After reviewing the environmental impacts and the cost benefit
analysis, the Regional Forester for the administrative region in
which the forest is located selects the alternative that in his
opinion will “provide for multiple use and sustained yield of
pele a ee. we
that long-term net public benefits in an
perm sound manner.” 36 C.F.R. § 219.1(a),
§ 219.10(c). The approved plan controls all activity within the
forest for a ten to fifteen-year period.
55a
The planning process for the WNF began in 1981 and
continued over a period of five years. In August, 1986, the
Forest Service published the proposed p’an together with a
draft environmental impact statement ("DEIS") and distributed
them to the public for comment for a ninety-day period. On
January 4, 1988, after analyzing over 1,500 written comments,
the Forest Service adopted the final plan accompanied by a
record of decision ("ROD") and a final environmental impact
statement. ("FEIS")
Both Plaintiffs participated extensively in the initial
planning process and in the comment period following
publication of the proposed plan and the DEIS.
Representatives of the Sierra Club attended public meetings to
identify and discuss relevant issues in .Jovember 1981,
October 1985, February 1986, and October 1986. DEIS
Appendix A, pp. A-1, A-29, A-30. Members of the Plaintiff
groups and the groups themselves sent letters commenting on
the DEIS during the comment period. FEIS Appendix A,
pp. A-4, A-6, A-9, A-11. Members of the Sierra Club
participated in a workshop in February, 1987 which was held
for the purpose of resolving major issues raised during the
comment process. FEIS Appendix C, pp. C-l, C-2. Both
Plaintiffs appealed the decision to adopt the final plan. Both
were represented by counsel and both filed lengthy statements
of reasons with attachments. Between May, 1988 and March,
1989, officials of the Forest Service met with representatives
of each Plaintiff to attempt to resolve their differences. After
the Regional Forester issued responsive statements to the
Plaintiffs’ filings, the Plaintiffs filed replies. In addition, the
Sierra Club presented its views in an oral argument on
October 20, 1989. Citizens Council declined to participate in
the oral hearing. The Chief of the Forest Service issued
decisions on November 14, 1990 and January 14, 1992,
56a
denying Plaintiffs' appeals. Plaintiffs’ filed this action on
March 18, 1992.
Plaintiffs seek to introduce the testimony of seven expert
witnesses. They have tendered affidavits and reports which
contain the opinions and probable testimony of each of these
consideration to whether each of them should be permitted to
testify in this proceeding.
Ronald O'Toole
Mr. O'Toole is a forester and a forest economist who is
familiar with a computer program known as FORPLAN,
which is used by forest planners to develop forest plans. He
was retained by the Sierra Club to prepare a detailed review of
the WNF plan. In order to do this, he visited the Forest
Supervisor's Office and examined computer runs and other
background planning documents. O'Toole asserts that the
DEIS incorrectly states that the Wayne FORPLAN model
made all forest land available for non-timber prescription when
in fact -- except for areas specifically placed in a non-timber
category -- FORPLAN was only allowed to choose among
different timber prescriptions. O'Toole's assertion is based on
his interpretation of a table which is part of DEIS Appendix B.
The FORPLAN computer modeling program is described in
great detail in the DEIS, Appendix B, Part Three. Citing
specific portions of the DEIS, Defendants show that the
planners did make all acres of the forest available for non-
timber management in their initial evaluation of the range of
planning options and potential outputs. See DEIS Appendix B,
p. B6-20. O'Toole's own report acknowledges that in two
"benchmark" runs of FORPLAN, all areas of the forest were
available for non-timber prescription. See O'Toole Report,
57a
pp. 8, 18. Plaintiffs assert that O'Toole will show that an
assumption not revealed in the planning documents was that
recreation can only take place in areas where timbering is
allowed. O'Toole's report, however, states that the model
“explicitly assumed that the highest levels [recreation] could
only take place in the presence of timber cutting." O'Toole
Report, p.i.i.i. If the assumption is explicit, there is no need
for O'Toole's testimony to demonstrate it.
The FORPLAN computer runs are part of the planning
documents and are part of the administrative record. See
Declaration of Robert K. Ballentyne and attached Planning
Record Index. (Doc. 14) The Court concludes that the
administrative record contains sufficient information to
determine how the Forest Service used the FORPLAN
computer program and whether there were any
misrepresentations or unstated assumptions as alleged by
O'Toole's basic objection to the plan seems to be based
on cost efficiency, particularly the fact that the plan includes
below-cost timber sales, which he believes is contrary to the
administrative proceedings and they may now argue to this
Court that the Forest Service acted in an arbitrary and
capricious manner in rejecting them and adopting the final
plan. The Court finds no justification for admitting additional
evidence outside the administrative record in order to address
these arguments, nor have Plaintiffs advanced any reason why
Mr. O'Toole's testimony and arguments could not have been
58a
James M. Northrup
Mr. Northrup is a principal in a private consulting firm
which does environmental planning and analysis. He
previously served as forest planner and NEPA Coordinator on
the Green Mountain National Forest in Vermont. Northrup
states that the WNFP planning documents are lengthy and
contain much technical, complex information, which is
communicated using legal, economic, silvicultural and other
technical terms not commonly understood by the average
citizen. He asserts that the criteria used by the Regional
Forester to select the plan are not clearly stated in the ROD
and that it focuses on differences among the alternatives
considered instead of the rationale for selecting one over the
others. He claims that the analysis of public demands for
resources and uses is inadequately documented, appears
fundamentally flawed, and may have been misapplied, and that
the alternatives analyzed did not cover the reasonable range
required by NEPA. He contends that an abbreviated FEIS is
considered in formulating the environmental impact statement.
His fourteen-page affidavit contains these and other legal
ai guments and conclusory statements attacking the plan and the
planning process and in many imstances comparing it
unfavorably with the plan adopted for the Green Mountain
National Forest.
While it is true that the WNFP planning documents are
lengthy and technical, courts are often called upon to analyze
lengthy, technical material. The Court has found these
documents to be intelligible and their concepts and terminology
capable of being understood without expert assistance. It is
not appropriate to admit evidence outside the record for the
purpose of comparing the WNFP with the Green Mountain
59a
National Forest Plan. The WNFP must stand or fall on its
Own merits, based upon the administrative record. Some of
the points raised by Northrup were raised by the Plaintiffs
during the administrative process and the record is adequate to
evaluate those claims. To the extent that Northrup raises new
objections to the plan, Plaintiffs have failed to show why they
did not raise them earlier. To the extent that Northrup asserts
legal objections to the plan, these can be asserted by counsel
in their briefs on the basis of the facts contained in the
For all of these reasons, the Court concludes that Mr.
Northrup's testimony should not be admitted.
David R. Dewalle
Mr. Dewalle is a professor of forest hydrology. He is
involved in teaching and research related to the water resource
have submitted an affidavit from Dr. Dewalle stating his
opinion that the plan lacks detail to indicate that water resource
issues have been adequately addressed or evaluated. His main
point appears to be that the plan, “seems to miss the
opportunity to improve water resource conditions in the
region." Dewalle criticizes the plan's alleged failure to
address the problems of erosion resulting from timbering and
water pollution caused by previous exploitive activities such as
strip mining and oil drilling. He further contends that the plan
fails to address how sewage discharge will be handled in
connection with future recreational sites that may be
constructed or the effect of private development that may occur
nearby.
The DEIS shows that consideration was given to existing
water resources and the impact the plan would have on them.
60a
The index to the DEIS contains nine references to water and
water quality. Comments received in response to the DEIS
included concerns that the DEIS considered water quantity
rather than quality, that the DEIS failed to offer information
on the cumulative impacts on water quality and that it should
discuss measures to protect water quality, including water
quality monitoring. The Forest Service responded to each of
to water and water quality. See Plan Index, Water, Water
Holes, Wells and Cisterns. A reference to sewerage treatment
facilities states that they will be adequately designed and
maintained to protect water quality. See Plan, p. 4-143.
The plan specifically addresses water pollution resulting
from abandoned underground coal mines and states, "At this
time, an efficient and reliable method does not exist to reclaim
these sites so that they do not contribute to the pollution of the
streams and lakes." Plan, p. 3-15. Defendants point out (the
Court believes correctly) that issues relative to sewerage
treatment and handling facilities must await the planning of
specific projects at specific locations. Finally, the
administrative record discloses that the Forest Service
considered the effects of erosion resulting from timbering
activities.
It appears that the issues raised by Dewalle were
addressed in the planning process and that the administrative
record contains sufficient information for the Court to evaluate
Plaintiffs’ claims that the plan and the environmental impact
Statement do not sufficientiy address water quality concerns.
Furthermore, the Court can discern no reason why Plaintiffs
could not have presented Dewalle's criticisms to the agency
6la
A. Claude Ferguson
Mr. Ferguson has a Bachelor of Science degree in
Forestry. He held various positions of employment with the
Forest Service until 1976. He was the forest supervisor for
the WNF in 1966. Plaintiffs have submitted a fifteen-page
report authored by Mr. Ferguson, in which he outlines his
objections to clearcutting as the dominant timber-harvesting
method used in the plan. Ferguson expresses his opinions on
the adverse consequences of clearcutting and attacks the
grounds relied upon by the Forest Service in selecting it. He
expresses other objections to the planning process. Much of
Mr. Ferguson's criticism is based on the results of a Purdue
University study of timber regeneration in the Wayne-Hoosier
National Forest in Indiana, which was published in December
of 1987, three months after the WNF plan was adopted. This-
study was not available to the Forest Service during the
planning process. The Court must judge an agency's actions
by the information available to it at the time it makes it's
eshiien: Yankee Nuclear I |
Resources Defense Council, Inc., 435 U.S. 519, 553 (1978).
The Purdue study was, however, available to the Plaintiffs
during the administrative appeal process and they offer no
excuse for their failure to include it in their submission during
the appeal process.
The plan, the DEIS and the FEIS show that considerable
attention was given to the issue of clearcutting or "even-aged
management.” See Plan, Chapter 3, Vegetative Management.
Ferguson contends that the plan deceptively labels patch
clearcutting as group cutting and categorizes it as uneven-aged
management, contrary to accepted silvicultural practice.
However, the DEIS at p. 4-24 et seg. defines how group
62a
cutting is used in the plan and acknowledges that it can
resemble clearcutting.
During the comment period, several commentors
expressed objections to clearcutting, citing many of the reasons
relied on by Mr. Ferguson in his report. See FEIS, Chapter
2..p.215 et seq. The record is adequate to evaluate Plaintiffs’
objection to clearcutting. In a general sense, Ferguson's
objections were considered by the Forest Service during the
administrative process, and to the extent that any of his
objections were not specifically raised or addressed, it is only
because Plaintiffs failed to raise them when they had the
opportunity to do so.
Stephen M. McKee. James R. Runkle. William Buskiri
Mr. McKee describes himself as a botanist, ecologist and
field naturalist. He received a Master of Science degree in
botany from Miami University at Oxford, Ohio. He believes
that the Forest Service was mistaken in its assessment of the
effects of clearcutting on bio-diversity. According to Mr.
McKee, the issue of bio-diversity should have been examined
on a regional basis and the Forest Service should have been
more concerned about preserving mature forest species.
McKee also disagrees with some of the plan's assumptions
regarding the nature of regrowth in harvested areas and the
amount of' time necessary for regeneration after clearcutting,
and notes the plan's failure to address contrary scientific views
on the effects of clearcutting.
Runkle is an associate professor of biological sciences at
Wright State University in Dayton, Ohio. He questions the
plan's conclusion that 120-year rotations are sufficient to favor
wildlife species that require mature and over-mature
hardwoods. He believes that in reaching this conclusion, the
63a
Forest Service focused on vertebrates and overlooked other
species, including fungi, herbs, imsects, and other
invertebrates. He says the plan contains no data guaranteeing
that the needs of such other species will be met. He believes
the plan ignores landscape ecology, specifically, “how the
spatial arrangement of different habitats in a large region
("landscape") affects the distribution and abundance of
organisms living in that landscape." Finally, he questions the
use of clearcutting as the preferred method for regenerating
oak and hickory forests on the ground that this is scientifically
uncertain. He believes that clearcutting should be postponed
Buskirk is a biologist who is an expert in avian ecology.
He believes that the plan overlooks certain environmental
impacts because “the planners were unaware of or ignored
recent evidence and perspectives in the scientific literature
related to the conservation of biological diversity." He
challenges the plan's assumption that full diversity of habitat
types is needed to perpetuate biological diversity. He says that
this assumption fails to recognize that some species are much
less mobile than others and less likely to re-colonize areas of
extinction after habitats have returned to predisturbance
conditions. He says his opinions are based on developing
scientific literature and he cites scientific publications as recent
as 1992. Again, the decision of the Forest Service to adopt
the plan must be judged on the information available to it at
the time. Vermont Yankee, 435 U.S. at 553. He believes that
some of the terminology used in the plan is “harvest-biased."
He asserts that the plan overlooks the impacts of producing
forest edges along clear cuts and the effects of invasion of
native habitats by introduced “exotic” vegetation.
64a
Most of the issues raised by McKee, Runkle and Buskirk
are addressed, at least generally, in the administrative record.
Plan Appendix B is devoted entirely to the issue of the plan's
impact on plant and animal species. The plan further indicates
that in choosing harvest methods and rotation ages, the Forest
Appendix C. p. C-5 et seq.; FEIS Appendix E. p. E-1 et seq.;
DEIS pp. 4-21. 4-22, 4-40 ef seq. These issues were also
the general areas of concern raised by McKee, Runkle and
Buskirk, and to the extent that specific concerns or objections
were not raised or addressed, Plaintiffs have shown no excuse
for their failure to raise them when they had the opportunity
to do so during the administrative process.
Conclusion
The planning process for the WNFP began well over ten
years ago. The full planning record contains tens of thousands
of pages of documents. Plaintiffs were extensively involved in
the planning process, the public comment process and the
administrative appeal process. Now, plaintiffs want the Court
to consider the testimony of seven expert witnesses, none of
whom provided testimony, reports or affidavits to the Forest
Service at any stage of the proceeding, and each of whom has
lengthy, multi-faceted and highly technical criticisms of the
plan. An examination of the affidavits and reports of these
experts reveals that the breadth and scope of their criticisms
and the evidence which the defendants would likely introduce
to rebut them would, if the Court permitted them to testify,
transform this case into a de novo hearing on the merits of the
plan. This would effectively reopen the planning process and
put the Court in the role of the Forest Planner, a role which it
65a
has neither the resources nor the expertise to perform. See
Cronin v. United States Department of Agriculture, 919 F.2d
439, 444 (7th Cir. 1990).
These plaintiffs are not unsophisticated litigants. They
have significant resources and considerable expertise in
environmental litigation. They have certainly known all along
where to go to obtain the kind of evidence they now seek to
offer for the first time in this Court. While it is true that
NEPA places upon an agency the obligation to consider every
significant aspect of the environmental impact of a proposed
action, it is still incumbent upon those who have objections to
structure their participation in the administrative process so
that it is meaningful, so that it alerts the agency to their
position and contentions. Vermont Yankee, 435 U.S. at 553.
To wait years to offer voluminous objections by an army of
experts borders on the kind of gamesmanship condemned by
the Supreme Court. Id.
Defendants' motion in limine to limit review to the
administrative record is well taken and is GRANTED.
IT IS SO ORDERED.
66a
APPENDIX D
United States Forest Washington 14th & Independence SW
Department of Service Office P.O. Box 96090
Agriculture Washington, DC 20090-6090
Reply To: 1570-1(LMP)
Date: November 14, 1990
CERTIFIED RECEIPT REQUESTED
Jerome C. Tinianow
Hahn Loeser & Parks
800 National City E. 6th Building
1965 East 6th Street
Cleveland, Ohio 44114-2262
RE: Appeal of the Wayne National Forest Land and
Resource Management Plan (#2309)
Dear Mr. Tinianow:
Pursuant to 36 CFR 211.18, this letter is our final decision on
your appeal of the Wayne National Forest Land and Resource
Management Plan (Forest Plan/Plan) and its accompanying
Final Environmental Impact Statement (FEIS).
You are representing the Sierra Club, Ohio Chapter who are
the appellants. Intervenors are: the American Motorcyclist
Appalachian Mother Earth Network; Dale W. Riddle Forest
Products, Inc.; Waldron Lumber Company, Inc.; The Ohio
Forestry Association, Inc.; the National Wild Turkey
Federation, Inc., Ohio State Chapter; the Ruffed Grouse
67a
Ohio Chapter of the Wildlife Society; the Mead Corporation;
and Gary L. and Laurel L. Hamilton.
The allegations in your appeal are: 1) "The Plan permits
unjustified timber sales below cost, thereby allowing timber
harvesting on lands which are not suitable for this activity" ; 2)
"The Plan perverts statutory and regulatory requirements
pertaining to biological diversity by using them to justify
creation of conditions that are common outside of the Forest,
in favor of conditions which are available mainly or even
exclusively in the Forest"; 3) "The Forest Plan allows
clearcutting on 80% of the suitable timber land without
demonstrating that it is the optimal method of timber harvest” ;
and 4) “The adjustments to the Plan needed to correct the
errors identified above will require additional adjustments in
other areas of the Plan."
You appealed the plan “based on a number of errors" with a
request that “the Plan be remanded to the Regional Forester
with instructions to redraft it to eliminate these errors."
"[TJhe result is a Plan which provides for too much timber
harvesting, in too large an area, by the wrong methods, at too
low a price” (SOR, page 2).
ISSUE 1 - WHETHER THE FOREST PLAN ALLOWS
UNJUSTIFIED BELOW COST TIMBER SALES.
In the SOR (page 6), the appellants contend that the inclusion
of below-cost timber sales is a violation of section 6(k) of
NFMaA and/or the MacCleery decision and therefore ". . . will
allow timber harvest on unsuitable land in violation of the law.
You further state "[TJhe Regional Forester's reliance on
intangible benefits to establish the economic viability of
including certain lands in the timber base is particularly
objectionable” (SOR page 8).
68a
Di _
Below-cost timber sales has become an item of considerable
debate. However, most arguments tend to ignore the fact that
the Forest Service is required by law to manage the Forest for
multiple uses. In managing timber, as one of the multiple
uses, we must insure that we are cost effective in our
making a profit. In Thomas v. Peterson, 753 F.2d 754 (9th
Cir. 1985), the Ninth Circuit Court rejected the argument that
timber can only be harvested where the value of the timber
exceeds the cost of the harvest.
The requirements for identification of lands which are not
suitable for timber production are contained in the
implementing regulations of 36 CFR 219.14(a) through (d).
The suitability process consists of three stages as described by
these regulations. The result of this analysis by the Wayne
National Forest is displayed by alternative in the Draft
Environmental Impact Statement (DEIS), Appendix B, part 3
(table B3-9 and pages B3-39) and the FEIS page 1-11. The
intent of the first stage of this procedure is to ensure that
timber production will not be attempted where it might cause
irreversible resource damage or deforestation. The intent of
the second and third stages of this procedure in to ensure that
land is selected for timber production in such way that the
multiple-use goals and objectives of the LRMP are achieved in
the most cost-efficient manner possible.
The results of the analysis show that the amount of land
classified as suitable timber land ranges from 17,878 acres in
Alternative 7 to 147,742 acres in Alternative 6. Modified
Alternative 3 (the Forest plan) has 126,107 acres identified as
suitable for timber production. The process used by the Forest
69a
to determine lands suitable for timber production is consistent
with 36 CFR 219.14 and NFMA.
The appeal record shows that cost efficiency was considered
throughout the planning process (FEIS appendix B). This
analysis is done by alternative for the entire Forest, not for
each individual timber sale that will follow. The regulation at
CFR 219.3 defines “cost efficiency" as "[Tjhe usefulness of
specified inputs (costs) to produce specified outputs (benefits).
In measuring cost efficiency, some outputs, including
environmental, economic, or social impacts, are not assigned
monetary values but are achieved at specified levels in the least
cost manner." Therefore, “cost efficiency" takes into account
both priced and non-priced (or intangible) values
The present net value (PNV) is a primary economic criterion
used by the Regional Forester to compare economic efficiency
of alternatives. However, PNV does not measure the
nonpriced benefits of Forest management.
The Regional Forester is not required to select an alternative
with the highest PNV. The NFMA regulation (36 CRF 219.1)
prescribes that the Forest Plan shall prescribe management
which will maximize long-term public benefits in an
environmentally sound manner.
Although the appellants find ". . . the Regional Forester's
reliance on intangible benefits to establish the economic
viability of including certain lands in the timber base
objectionable," the determination of which alternative has the
highest net public benefit derived from the array of alternatives
included in the analysis. The Regional Forester recognizes
that below-cost sales may occur under the provisions of the
Forest Plan (DEIS, Page 2-85 through 87; FEIS, pages 2-18
through 19; ROD, Pages 20-21) and discusses efforts to cut
70a
costs and raise revenues in order to redu
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