Sierra Club v. U.S. Forest Service, Civil Action No. 1:03-cv-1230-ODE.

• Decision Date: 22 February 2008
• Docket Number: Civil Action No. 1:03-cv-1230-ODE.
• Citation: 535 F.Supp.2d 1268
• Parties: SIERRA CLUB, The Chattooga Conservancy, Biodiversity Legal Foundation, Florida Biodiversity Project, Forest Conservation Council, Georgia Forest Watch, Ouachita Watch League, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, Wilderness Society, and Jerry Williams, Plaintiffs, v. UNITED STATES FOREST SERVICE; Charles L. Myers, in his capacity as Regional Forester of the Southern Region of the U.S. Forest Service; Dale Bosworth, in his official capacity as Chief of the U.S. Forest Service; and Ann Veneman, in her official capacity as Secretary of the U.S. Department of Agriculture, Defendants.
• Court: U.S. District Court — Northern District of Georgia

535 F.Supp.2d 1268

SIERRA CLUB, The Chattooga Conservancy, Biodiversity Legal Foundation, Florida Biodiversity Project, Forest Conservation Council, Georgia Forest Watch, Ouachita Watch League, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, Wilderness Society, and Jerry Williams, Plaintiffs, v. UNITED STATES FOREST SERVICE; Charles L. Myers, in his capacity as Regional Forester of the Southern Region of the U.S. Forest Service; Dale Bosworth, in his official capacity as Chief of the U.S. Forest Service; and Ann Veneman, in her official capacity as Secretary of the U.S. Department of Agriculture, Defendants.

Civil Action No. 1:03-cv-1230-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

February 22, 2008.

As Corrected March 3, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eric Eugene Huber, Sierra Club, Boulder, CO, Donald D.J. Stack, Stack & Associates, Jonathan Lee Schwartz, Jon L. Schwartz, Attorney at, Law, P.C., Atlanta, GA, for Plaintiffs.

Pamela S. West, U.S. Department of Justice, General Litigation Section, Washington, DC, Robert David Powell, Assistant U.S. Atty., Northern District of Georgia, Atlanta, GA, for Defendants.

ORDER

                TABLE OF CONTENTS
                  I.  INTRODUCTION ..................................................................1272
                 II.  CLAIMS I AND II ...............................................................1274
                      A.  Background ................................................................1274
                      B.  Key Interpretive Issues....................................................1288
                      C.  Region Eight PETS Lists as of 2002.........................................1290
                      D.  Supplementation of the Administrative Record...............................1291
                      E.  Standard of Review in NEPA Cases...........................................1291
                      F.  Resolution of Key Interpretive Issues .....................................1292
                      G.  Legal Discussion ..........................................................1302
                          1.  Claim I ...............................................................1302
                          2.  Claim II ..............................................................1306
                III.  CLAIM III .....................................................................1309
                 IV.  SUMMARY .......................................................................1311
                

                  V.  APPENDIX.......................................................................1313
                      1.  2002 Regional Supplement to Forest Service Manual .........................1313
                          Digest ....................................................................1313
                          § 2672.43 — Procedures for Conducting Biological Evaluations .............1314
                          Decision Tree .............................................................1315
                          Definition of Terms in Decision Tree ......................................1316
                      2.  List of 2002 Region Eight Forest Plan Amendments ..........................1316
                      3.  Claims Made in Chattooga and Forest Conservation ..........................1317
                

ORINDA D. EVANS, District Judge.

I. INTRODUCTION

This environmental suit brought under the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq., is back before this Court following an appeal. The parties have filed new cross motions for summary judgment. An evidentiary hearing for the purpose of supplementing the administrative record was held on June 8, 12, and 13, 2007. Oral argument on the parties' cross-motions for summary judgment was heard on October 12, 2007. Having considered the administrative record as supplemented and the briefs and arguments of the parties, Plaintiffs' motion is GRANTED IN PART and DENIED IN PART and Defendants' motion GRANTED IN PART AND DENIED IN PART.

Plaintiffs are various environmental organizations which oppose Forest Service projects in the national forests. Defendant U.S. Forest Service is charged with the management of the national forest system. Under the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528, et seq., and the National Forest Management Act, 16 U.S.C. §§ 1600(3) and 1607, the Forest Service must manage the national forests for timber production as well as for recreational and other uses. Specifically, the U.S. Forest Service is required to carry out commercial timber sales in the national forests within the "sustained yield" formula set by the legislation.¹ This reality produces constant litigation between environmental groups and the Forest Service. This case is one instance among many.

This case was initially filed as two cases: The Chattooga Conservancy, et al. v. Jacobs, Civil Action No. 1:01-cv-1976-ODE and Forest Conservation Council, et al. v. Jacobs, Civil Action No. 1:03-cv-1230-ODE.² The original claims in each case are set forth in the Appendix, pp. 1317-18. The two cases were consolidated following the appeal under the above-captioned case name.

The following claims are before the Court on the current cross-motions for summary judgment:

I. Claim that the 2000 amendments to the forest plans³ for Ouachita National Forest (Amendment 31), the National Forests in Alabama (Amendment 17), and the Chattahoochee-Oconee Forest (Amendment 18) are invalid because of deficient environmental analyses or faulty procedures under NEPA. Plaintiffs seek to stop projects approved under the authority of the 2000 amendments which have not been concluded.⁴

II. Claim that the 2002 Supplements to the 1989-1990 VMEISs for the Ozark/Ouachita, Appalachian and Coastal Plain/Piedmont subregions⁵ are invalid because of deficient environmental analysis under NEPA, thereby invalidating certain 2002 forest plan amendments, which were enabled by the Records of Decision ("ROD") for the Supplements.⁶ Plaintiffs seek to stop projects approved under the authority of the 2002 amendments which have not been concluded.

III. Claim that the 1999 revised forest plans for the National Forests in Florida and the Kisatchie Forest in Louisiana Fe invalid because of Defendants' failure to provide a draft of certain proposed changes to members of the public before finalizing the changes. Plaintiff contend this violated NEPA and the APA. Plaintiffs' seek to stop projects authorized under the Authority of these revised plans between their adoption in 1999 and their amendment in 2002 which have not been concluded.

The Court of Appeals has resolved in Plaintiffs' favor all issues of standing and ripeness. On Claim I and on Claim II administrative remedies have been exhausted. The Court of Appeals did not address claim III in its opinion, but claim III was remanded to this Court for decision. On claim III there is an outstanding issue concerning exhaustion of administrative remedies, which will be discussed in that part of this Order.

The parties disagree as to whether the Court of Appeals resolved all issues of mootness in its opinion. While there is some ambiguity on this point, this Court finds that the Court of Appeals has resolved this issue in Plaintiffs' favor. In any event, while all of the allegedly invalid plan amendments and revisions now have been superceded by further amendments, and all of the timber-cutting authorized under some of the allegedly invalid amendments may have been concluded by now, there are follow-up project activities such as periodic prescribed burning and reforestation which continue for years. The Court of Appeals noted that the continuing follow-up activities make non-moot the issue of faulty environmental analysis of the superceded amendments and revisions. This Court does agree with Defendants, however, that the issue of mootness may be re-evaluated if new evidence shows that the facts have changed (that all follow-up activities have been completed).

II. CLAIMS I and II

A. Background

The factual background has been set forth in the Court of Appeals' 2006 opinion in this case, Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir.2006), and in this Court's predecessor opinions in Chattooga Conservancy v. Jacobs, 373 F.Supp.2d 1353 (N.D.Ga.2005) and Forest Conservation Council v. Jacobs, 374 F.Supp.2d 1187 (N.D.Ga.2005).

The Court of Appeals' opinions in Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999) and in this case, Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir.2006), provide the controlling legal authority. Preceding decisions of this Court in Sierra Club v. Martin, 992 F.Supp. 1448 (N.D.Ga. 1998)(Thrash, J.) and 71 F.Supp.2d 1268 (N.D.Ga.1996) (Hull, J.) provide helpful factual perspective.

A number of key documents are the focus of Plaintiffs' claims (I) and (II). A review of the relevant parts of those documents is a necessary prerequisite to analysis of Plaintiffs' legal claims.

1990 Vegetation Management Environmental Impact Statement ("VMEIS")

The 1990 VMEIB for the Ozark/Ouachita Mountains subregion is a programmatic environmental impact statement. [AR 304-306]. It analyzed the foreseeable environmental effects of various alternatives for vegetation management in the subregion.⁷ The Summary, p. vi, enumerates five vegetation management methods (i.e., (1) prescribed fire,⁸ (2) mechanical methods, (3) manual methods, (4) herbicides and (5) biological methods). The various alternative approaches considered in the VMEIS (labeled as alternatives A-H) represented different selections or combinations of vegetation management methods. For example, Alternative A was the "no action" alternative in which there would be no vegetation management. Alternative D allowed no herbicide use. Alternative F, labeled as the preferred alternative, called for emphasis on manual methods and prescribed fire, with less emphasis on herbicides and mechanical methods. It called for using "herbicides and application methods...