# Petition for Writ of Certiorari — Ohio Forestry Assn., Inc. v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0103%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 726 ## Text supreme Court, U.&. FIL#&D ~ 97-16 uu 11997 YY 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 consis [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0103%3A02. Public record. Not legal advice.