Buckeye Forest Council v. U.S. Forest Service

• Decision Date: 20 July 2005
• Docket Number: No. C-1-04-259.,C-1-04-259.
• Citation: 378 F.Supp.2d 835
• Parties: BUCKEYE FOREST COUNCIL et al. Plaintiffs v. UNITED STATES FOREST SERVICE et al. Defendants
• Court: U.S. District Court — Southern District of Ohio

Page 835

378 F.Supp.2d 835

BUCKEYE FOREST COUNCIL et al. Plaintiffs v. UNITED STATES FOREST SERVICE et al. Defendants

No. C-1-04-259.

United States District Court, S.D. Ohio, Western Division.

July 20, 2005.

COPYRIGHT MATERIAL OMITTED

Paul Barker, Bridget Kennedy McNeil, U.S. Department of Justice, Environment & Natural Resources Division, for defendants.

Leigh Haynie, for plaintiffs.

ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DLOTT, District Judge.

This matter comes before the Court on cross motions for summary judgment of Plaintiffs Buckeye Forest Council ("Buckeye") and Heartwood (doc. # 29) and of Defendants United States Forest Service ("Forest Service"), United States Fish & Wildlife Service ("Fish & Wildlife"), and employees and agents of the Forest Service in their official capacities (doc. # 32). Before the Court is also Defendants' Notice of Correction (doc. # 37), which Plaintiffs oppose (doc. # 38), and Plaintiffs' Motion to Strike (doc. # 31). For the reasons set forth below, Plaintiffs' motion for summary judgment is DENIED, and Defendants' cross motion for summary judgment is GRANTED. Plaintiffs' opposition to Defendants' Notice of Correction (doc. # 38) and Motion to Strike (doc. # 31) are DENIED AS MOOT.

I. FACTUAL BACKGROUND

The factual background of this case was set forth extensively in this Court's previous order granting preliminary injunctive relief to Plaintiffs Buckeye and Heartwood. See Buckeye Forest Council v. United States Forest Service, 337 F.Supp.2d 1030 (S.D.Ohio 2004). The following factual background is therefore taken from that order:

Plaintiffs Buckeye Forest Council ("Buckeye") and Heartwood ask for injunctive relief to prevent the Forest Service from proceeding with two timber sale projects in the Wayne National Forest and the implementation of an amendment to the Wayne National Forest's Land and Resource Management Plan ("Forest Plan"). The two projects are the "Bluegrass Project," which consists of two timber sales, and the "Ironton Project." The Wayne National Forest consists of approximately 230,000 acres of land in southeastern Ohio. (AR Bk. VII at 1179). The Bluegrass Project involves timber thinning, prescribed burning, and single tree cutting on approximately 300 acres, about one tenth of one percent of the acreage in the Forest. (AR Bk. II at 469.) The Ironton Project involves removing downed trees and debris on 930 acres. (AR Bk. III at 4.) Buckeye and Heartwood allege that Defendants have violated the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"), the National Environmental Policy Act, 42 U.S.C. § 4332 et seq. ("NEPA"), and the Administrative Procedure Act, 5 U.S.C. § 702 et seq. ("APA"), by authorizing the two projects and the Forest Plan amendment, which Buckeye and Heartwood allege will harm the federally endangered Indiana bat.

The NFMA of 1976 requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). The Forest Service, which manages the System, develops land and resource management plans pursuant to NFMA and uses these forest plans to "guide all natural resource management activities." 36 C.F.R § 219.1(b).¹ Management activities of the Wayne National Forest are governed by the Forest Plan.

The NEPA establishes a "national policy [to] encourage productive and enjoyable harmony between man and his environment," and was intended to reduce or eliminate environmental damage and to promote "the understanding of the ecological systems and natural resources important to" the United States. 42 U.S.C. § 4321. "NEPA itself does not mandate particular results" in order to accomplish these ends. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions. See id., at 349-350, 109 S.Ct. 1835.

At the heart of NEPA is a requirement that federal agencies "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332(2)(C). This detailed statement is called an Environmental Impact Statement ("EIS"). An EIS was prepared in conjunction with the Forest Plan in order to evaluate the Forest Plan's effects on the human environment.

During 1994, the Forest Service reviewed the possibility of implementing the Bluegrass Project, the goal of which was to move the Wayne National Forest closer to its historical condition, restoring native ecosystems vanishing from Southern Ohio. (AR Bk. I at 205.) Federal regulations allow an agency to prepare an Environmental Assessment ("EA"), a more limited document than an EIS, if the agency's proposed action does not qualify for a categorical exclusion or does not clearly require the production of an EIS. See §§ 1501.4(a)-(b). The EA is to be a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS]." 40 C.F.R § 1508.9(a). If, pursuant to the EA, an agency determines that an EIS is not required under applicable federal regulations, it must issue a "finding of no significant impact" ("FONSI"), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment. See 40 C.F.R. §§ 1501.4(e), 1508.13. See generally Dept. of Transp. v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 2209-10, 159 L.Ed.2d 60 (2004). The Forest Service performed an EA for the Bluegrass Project in order to examine the potential environmental consequences of the Project. Buckeye, 337 F.Supp.2d at 1031-33.

In order to meet the goals of the Project, the Forest Service proposed in the EA several alternative courses of action and analyzed each one in conjunction with the Plan as a whole to determine the cumulative environmental effects, such as, inter alia, forest fragmentation and biodiversity, caused by each alternative. (AR Bk. I at 214-248.) The Forest Service sent the EA to interested parties and solicited public comment. (Id. at 257.) On November 3, 1994, the District Ranger for Wayne National Forest issued a FONSI and Decision Notice to adopt Alternative Two, which included thinning, prescribed burning, and select tree cutting. (AR Bk. II at 303.) The two timber sales constituting the Bluegrass Project were awarded in 1995. Buckeye, 337 F.Supp.2d at 1033.

Plaintiff Buckeye challenged the Bluegrass Project in 1996 and the Forest Service entered into an agreement with Buckeye that resulted in the Forest Service re-marking the cutting areas of the sales. (AR Bk. II at 461). The two sales were enjoined during 1997 and 1998 during a lawsuit challenging the Forest Plan.² After the injunction was lifted, timber cutting remained suspended while the Forest Service investigated the discovery of the Indiana bat in the forest. At the time that the Bluegrass EA was conducted in 1994, the federally endangered Indiana bat was not known to inhabit the Wayne National Forest, but from 1997-2000, the Forest Service discovered a number of Indiana bats on the Wayne National Forest a few miles from the Bluegrass Project site. Buckeye, 337 F.Supp.2d at 1033.

The ESA requires each federal agency to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of an endangered or threatened species or result in the destruction or adverse modification of [the critical] habitat of such species ..." 16 U.S.C. § 1536(a)(2). If an agency determines that an action that it proposes to take may adversely affect a listed species, it must engage in formal consultation with Fish & Wildlife. Id.; 50 C.F.R. § 402.14. After formal consultation, Fish & Wildlife must provide the agency with a Biological Opinion ("BiOp") explaining how the proposed action will affect the species or its critical habitat. 16 U.S.C. § 1536(b)(3)(A). If Fish & Wildlife concludes that the proposed action will jeopardize the continued existence of an endangered species or result in the destruction or adverse modification of its critical habitat, the BiOp must outline any "reasonable and prudent alternatives" that Fish & Wildlife believes will prevent that consequence. 16 U.S.C. § 1536(b)(3)(A). If Fish & Wildlife concludes that the agency action will not result in jeopardy to the endangered species or if Fish & Wildlife offers reasonable and prudent alternatives to avoid that consequence, Fish & Wildlife must provide the agency with an Incidental Take Statement specifying "the impact of such incidental taking on the species," and "reasonable and prudent measures that [Fish & Wildlife] considers necessary or appropriate to minimize such impact," and setting forth "the terms and conditions ... that must be complied with by the Federal agency ... to implement [those measures]." 16 U.S.C. § 1536(b)(4).

In March of 2001, the Forest Service conducted a Biological Assessment to analyze the effect of the continued implementation of the Forest Plan on the Indiana bat and other...