Buckeye Forest Council v. U.S. Forest Service

• Decision Date: 24 August 2004
• Docket Number: No. C-1-04-259.,C-1-04-259.
• Citation: 337 F.Supp.2d 1030
• Parties: BUCKEYE FOREST COUNCIL et al., Plaintiffs v. UNITED STATES FOREST SERVICE et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

337 F.Supp.2d 1030

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.

August 24, 2004.

Albert J. Slap, Glendale, OH, Leigh Haynie, Carencro, LA, for Plaintiffs.

Bridget Kennedy McNeil, Paul D. Barker, Jr., U.S. Department of Justice, Washington, DC, Jan Martin Holtzman, Cincinnati, OH, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTIONS FOR PRELIMINARY INJUNCTION

DLOTT, District Judge.

This matter comes before the Court on Plaintiffs' Motion for Temporary Restraining Order, or in the Alternative, Preliminary Injunction (doc. # 13) and Supplemental Motion for Preliminary Injunction (doc. # 17). For the reasons set forth below, Plaintiffs' motion for preliminary injunction is GRANTED.

I. FACTUAL BACKGROUND

This is a civil case brought against the 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. Plaintiffs Buckeye Forest Council ("Buckeye") and Heartwood ask for injunctive relief to prevent the Forest Service from proceeding with four timber sales in the Wayne National Forest. Two of the timber sales are part of the "Bluegrass Project" and two of the timber sales are part of the "Ironton Project." Buckeye and Heartwood allege that Defendants have violated or failed to adhere to procedures set forth in 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 four sales, 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 Land and Resource Management Plan ("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 neither is categorically excluded from the requirement to produce an EIS nor would 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, ___ U.S. ___, 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.

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 Decision Notice and Finding of No Significant Impact ("FONSI") 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 Project² were awarded in 1995.

Plaintiff Buckeye challenged the two sales in 1996 and the Forest Service entered into a consent decree with Buckeye that resulted in the Forest Service re-marking the cutting areas of the sales. The two sales were enjoined during 1997 and 1998 during a lawsuit challenging the Forest Plan.³ 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 at Wayne National Forest and specifically near the Bluegrass Project site.

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 action 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 Bats and other endangered species. The Forest Service concluded that the Forest Plan might adversely affect the Indiana Bat, and therefore entered into formal consulting with Fish & Wildlife. After formal consultation, Fish & Wildlife issued a BiOp on September 20, 2001 concluding that the continued implementation of the Forest Plan was not likely to jeopardize the continued existence of the Indiana Bat. (AR Bk. IV at 65-66.) Fish & Wildlife recognized that an allowable amount of harm, or "incidental take," would befall the Indiana Bat (id. at 67) and set forth nine Terms and Conditions that the Forest Service was required to follow in order to minimize such incidental take (id. at 69-72). Finally, the BiOp set forth a tiered consultation system by which the Forest Service was required to submit site-specific project proposals to Fish & Wildlife to determine whether proposed projects might adversely affect endangered species, and, if Fish & Wildlife found an adverse effect, it would issue a "Tier II" BiOp with a project specific incidental take statement (id. at 43) and proposed mitigation measures to allay that effect.

Following the issuance of Fish &...