Chattooga Conservancy v. Jacobs, CIV.A.1:01-CV1976ODE.

• Decision Date: 16 June 2005
• Docket Number: No. CIV.A.1:01-CV1976ODE.,CIV.A.1:01-CV1976ODE.
• Citation: 373 F.Supp.2d 1353
• Parties: The CHATTOOGA CONSERVANCY, Florida Biodiversity Project, Forest Conservation Council, Georgia ForestWatch, Ouachita Watch League, Sierra Club, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, and The Wilderness Society, Plaintiffs v. Robert T. JACOBS, as Regional Forester of the Southern Region of the U.S. Forest Service, and the U.S. Forest Service, Defendants
• Court: U.S. District Court — Northern District of Georgia

373 F.Supp.2d 1353

The CHATTOOGA CONSERVANCY, Florida Biodiversity Project, Forest Conservation Council, Georgia ForestWatch, Ouachita Watch League, Sierra Club, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, and The Wilderness Society, Plaintiffs v. Robert T. JACOBS, as Regional Forester of the Southern Region of the U.S. Forest Service, and the U.S. Forest Service, Defendants

No. CIV.A.1:01-CV1976ODE.

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

June 16, 2005.

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Blaine T. Phillips, Southern Environmental Law Center, Charlottesville, VA, Donald D.J. Stack, Stack & Associates, Atlanta, Douglas A. Ruley, Southern Environmental Law Center, Inc., Asheville, NC, Jonathan Lee Schwartz, Jon L. Schwartz, Attorney at Law, P.C., Atlanta, Eric Eugene Huber, Sierra Club, Boulder, CO, Martin J. Bergoffen, Southern Appalachian Biodiversity Project, Asheville, NC, Ray Vaughan, WildLaw, Montgomery, AL, for The Chattooga Conservancy, Biodiversity Legal Foundation, Florida Biodiversity Project, Forest Conservation Council, Georgia ForestWatch, Ouachita Watch League, Sierra Club, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, Wilderness Society, Plaintiffs.

Julia B. Anderson, Office of United States Attorney, Northern District of Georgia, Atlanta, Lisa A. Holden, U.S. Department of Justice, Environment & Natural Resources Division, Myesha K. Braden, U.S. Department of Justice, Environment & Natural Resources Division, Pamela S. West, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Robert David Powell, Office of United States Attorney, Northern District of Georgia, Atlanta, for Elizabeth Estill as Regional Forester of the Southern Region of the U.S. Forest Service, United States Forest Service, Robert T. Jacobs as Regional Forester of the Southern Region of the U.S. Forest Service, Defendants.

ORDER

ORINDA D. EVANS, District Judge.

In this civil case seeking review of agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, various environmental organizations contend that Robert T. Jacobs, Regional Forester for the Southern Region of the U.S. Forest Service, and the U.S. Forest Service, failed to follow the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, and the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687, when the Forest Service amended or revised certain Forest Plans and supplemented a Vegetation Management Environmental Impact Statement. Plaintiffs also seek to overturn Defendant Jacobs' decisions approving projects at two locations in the Ouachita National Forest¹ — Wildhorse Creek (in Oklahoma) and Oliver Branch (in Arkansas). This case is before the court on cross motions for summary judgment. For the reasons set forth below, Defendants' motion for summary judgment [# 60] is GRANTED and Plaintiffs' motion for summary judgment [# 52] is DENIED.

I. Claims Pertaining to the Ouachita National Forest

A. Facts

The following facts are undisputed unless indicated otherwise.

In 1990, Defendants issued a Vegetation Management Environmental Impact Statement ("VMEIS") for the National Forests in the Ozark/Ouachita Mountains region. The 1990 Ozark/Ouachita VMEIS is a voluminous regional planning document and environmental impact statement that discusses comprehensively the impacts and implications of a range of vegetation management methods that may be used under different circumstances to maintain the health of the forests. "Vegetation management" according to the VMEIS "is the skillful care of plants by means other than timber harvest. It is done to help young trees survive and grow, to provide a variety of wildlife habitats, to reduce hazardous fuels, to improve range forage, and to maintain safe and efficient travelways and utility lines." [Admin. Rec. IV, tab 1 (1990 Ozark/Ouachita VMEIS) at p. iii]. The VMEIS discusses five methods to manage vegetation: prescribed fire, mechanical methods (bulldozers, tractors, mowers, etc.), manual methods (i.e. hand held tools such as clippers, axes, or chain saws), biological methods (grazing), and herbicides.

Like all environmental impact statements prepared pursuant to NEPA, the VMEIS includes "mitigation measures" to reduce potential adverse environmental impacts of the five vegetation management methods. See 40 C.F.R. §§ 1502.14(f), 1502.16(h). In addition to mitigation measures that are specific to each of the five management methods, the VMEIS also discusses "General Management Requirements and Mitigation Methods" that apply to all management methods. This lawsuit focuses on one of these general requirements or mitigation measures, which appears in the VMEIS under the heading "Site-Specific Analysis." This section requires that projects within the forests be preceded by a site-specific evaluation of the effect of the selected vegetation management methods on threatened, endangered or sensitive plant and animal species, hereinafter "PETS"²:

1. General Management Requirements and Mitigation Measures

a. Site-Specific Analysis

The following general requirements and measures apply to all vegetation management methods. Each forest may be more restrictive, but not less.

(1) Projects must have site-specific analysis in compliance with the National Environmental Policy Act (NEPA).

* * * * * *

(2) A biological evaluation of how a project may affect any species Federally listed as threatened, endangered, or proposed, or identified by the Forest Service as sensitive, is done by a biologist as part of the site-specific environmental analysis. This evaluation considers all available inventories of threatened, endangered, proposed, and sensitive species populations and their habitat for the proposed treatment area. When adequate population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a threatened, endangered, proposed, or sensitive species. Appendix D identifies potential adverse effects from vegetation management by species. When adverse effects are projected, mitigation measures specified in appendix D and this chapter are used to prevent them.

1990 Ozark/Ouachita VMEIS at II-40 and II-41.

According to the VMEIS, the purpose of the site-specific analysis and the collection of PETS data is "to ensure that these species are protected when vegetation management projects (including those designed to benefit the species) take place." [1990 Ozark/Ouachita VMEIS at IV-82]. In addition to the general requirement to review and collect information on PETS, the VMEIS also discusses in detail PETS-related concerns that arise from each of the five vegetation management methods. [1990 Ozark/Ouachita VMEIS at IV-82 through IV-84]. The VMEIS describes how different mitigation measures address specific risks posed by different methods. For example, the VMEIS discusses in detail a variety of PETS-related mitigation measures to avoid dangers related to herbicides, since herbicides can prove uniquely risky to sensitive species. [1990 Ozark/Ouachita VMEIS at II-54 through II-61].

Around the same time the 1990 Ozark/Ouachita VMEIS was published, the Forest Service also issued a new Forest Plan for the Ouachita National Forest.³ The 1990 Forest Plan for the Ouachita National Forest was developed in connection with its own Environmental Impact Statement ("EIS").⁴ This EIS is different from the VMEIS, which pertains only to vegetation management. The Forest Plan EIS applied only to the Ouachita National Forest, whereas the VMEIS applies to the Ouachita National Forest and two other national forests in the Ozark/Ouachita region.

Amendment 3 to the Ouachita Forest Plan made the Record of Decision ("ROD")⁵ for the 1990 Ouachita VMEIS a part of the Ouachita Forest Plan. Amendment 3 explicitly incorporated into the Ouachita Forest Plan the VMEIS language requiring the collection of PETS data for a site-specific project whenever "adequate population inventory information" was not already available.

In Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999), the United States Court of Appeals for the Eleventh Circuit addressed the same PETS language as it appeared in the Forest Plan for the Chattahoochee and Oconee National Forests. Martin held that the Forest Service violated the requirements of the Forest Plan (and thereby violated NFMA) by implementing a logging and road construction project in the absence of "adequate population inventory information" on PETS. The Forest Service had admitted that sensitive and endangered species inhabited the project area and that they would be destroyed by the proposed timber sales, but "the Forest Service had no population inventory information and little in the way of population data for thirty-two of the thirty-seven vertebrate PETS species that inhabit the Forest." Id. at 4. Martin found that because the Forest Service acted contrary to its own Forest Plan in approving the project without "adequate population inventory information", its action in approving the project was arbitrary and capricious.

After Martin the Forest Service amended the PETS language in forest plans throughout the Southern Region, including in the 1990 Ouachita Forest Plan. The amendments made it clear that the Forest Service did not always need to collect pre-project population data on every PETS species occurring in a proposed project area. Rather, in some cases the presence of PETS could be assumed in assessing whether particular treatment methods would harm PETS. The amendments also specifically recognized that data collection efforts could be futile in the case of elusive species. The Forest Service stated that "The recent decision by the United States Court of Appeals for the Eleventh Circuit in Sierra Club v. Martin illuminated the need to clarify the management direction for conducting...