Clinch Coalition v. Damon
| Decision Date | 06 May 2004 |
| Docket Number | No. CIV.A.2:02 CV 00212.,CIV.A.2:02 CV 00212. |
| Citation | 316 F.Supp.2d 364 |
| Parties | The CLINCH COALITION, et al., Plaintiffs, v. William E. DAMON Jr., et al., Defendants. |
| Court | U.S. District Court — Western District of Virginia |
David W. Carr, Jr., Charlottesville, VA, Douglas A. Ruley, Marty Bergoffen, Asheville, NC, for Plaintiffs.
Gail Orendorff, Federal Aviation Administration, Thomas L. Sansonetti, United States Department of Justice, Barbara A. Miller, William P. Horn, Birch Horton Bittner & Cherot, Washington, DC, Julie C. Dudley, United States Attorneys Office, Roanoke, VA, Matthew Tilden, United States Department of Agriculture, Office of General Counsel, Atlanta, GA, Wade W. Massie, Penn Stuart & Eskridge, Abingdon, VA, for Defendants.
This case involves the claims of the Clinch Coalition, the Virginia Forest Service Watch, the Wilderness Society and the Southern Appalachian Biodiversity Project, (hereinafter, "Plaintiffs"), against William E. Damon, Jr., being sued in his official capacity as the Forest Supervisor for the Virginia National Forests, and the United States Forest Service, (hereinafter, "Defendants"), as defendants, and the Ruffed Grouse Society, Joseph Hobbs and Gregory Isenberg, (hereinafter, "Intervenors"), as defendant intervenors. The Plaintiffs seek a declaratory judgment that the Defendants have violated the National Environmental Policy Act, (hereinafter, "NEPA"), and the National Forest Management Act, (hereinafter, "NFMA"), by preparing an inadequate Environmental Analysis for the Bark Camp timber sale, (hereinafter, "EA"), by failing to supplement this EA in light of significant new information and changed circumstances and by failing to analyze adequately the economic impacts and net present benefits of this timber sale. (Complaint for Declaratory and Injunctive Relief, (hereinafter, "Complaint"), Docket Item No. 1, at 14.) The Plaintiffs also seek appropriate injunctive relief to insure that the Defendants comply with NEPA and NFMA, and specifically to insure that the Defendants take no further actions toward implementing this timber sale until they have complied with these laws. (Complaint at 14.) The Plaintiffs wish this court to order that the Defendants' Finding of No Significant Impact, (hereinafter, "FONSI"), and Decision Notes concerning this project be vacated, that this court award the Plaintiffs the costs of this action, including reasonable attorneys' fees and expert witnesses' fees and that this court grant such other relief as this court deems just and proper. (Complaint at 14.) This matter is before this court on a Motion for Summary Judgment filed by the Plaintiffs, (Docket Item No. 22), a Motion for Summary Judgment filed by the Defendants, (Docket Item No. 35), and a Motion for Summary Judgment filed by the Intervenors, (Docket Item No. 34.). This court exercises federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331 under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and the Administrative Procedures Act, (hereinafter, "APA"), 28 U.S.C. §§ 701-06. Oral argument was held on this matter before this court on January 22, 2004, and this case is now ripe for decision. For the reasons set forth below, the Motion for Summary Judgment filed on behalf of the Defendants is hereby GRANTED; the Motion for Summary Judgment filed on behalf of the Intervenors is hereby GRANTED; and the Motion for Summary Judgment filed on behalf of the Plaintiffs is hereby DENIED. Therefore, the decision of the United States Forest Service is hereby UPHELD.
The Plaintiffs filed the complaint in this matter on December 17, 2002. The Defendants timely filed their answer to this complaint on March 3, 2003. On March 18, 2003, the Ruffed Grouse Society, Joseph Hobbs and Gregory Isenberg filed a Motion to Intervene. A hearing was held on the Motion to Intervene on May 27, 2003, and by Order of this court entered on the same day, the Ruffed Grouse Society, Joseph Hobbs and Gregory Isenberg were added as defendant intervenors. The Intervenors timely filed their answer to the complaint on August 1, 2003.
On July 15, 2003, the Plaintiffs filed their Motion for Summary Judgment. The Intervenors filed their Motion for Summary Judgment on August 18, 2003. The Defendants filed their Motion for Summary Judgment on August 20, 2003. Oral argument was held on these motions on January 22, 2004.
The National Forests in the United States were established by congressional mandate in order 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.A. § 475 (West 2000). In addition National Forests were established and are to be "administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C.A. § 528 (West 2000). In 1936, the Jefferson National Forest was created and joined with the George Washington National Forest in 1995. The two Forests include lands that are parts of the Commonwealths of Virginia and Kentucky and the state of West Virginia; altogether, the Forests contain approximately 1.8 million acres of land.
The National Forests are managed under the Land and Resource Management Plan and final Environmental Impact Statement for the Jefferson National Forest, (hereinafter, "Management Plan"). This plan addresses each section of the Forests separately, and it provides a set of goals and management practices unique to each area. The Bark Camp Area, the area at issue in this case, is included in the Clinch Ranger District. The Bark Camp Area consists of the High Knob Tower, Bark Camp Lake, High Knob Lake, the Chief Benge Scout Trail and the Stony and Little Stony Creek Watersheds of the Clinch River. Many rare and endangered species are present in the Clinch River. The Bark Camp Area attracts many visitors because of its recreational opportunities, hunting, fishing, hiking, wildlife and beauty. On a clear day, a visitor to High Knob Tower can observe five states; this particular spot of the Bark Camp Area attracts approximately 40,000 visitors each year. In fact, the Bark Camp Area is the most heavily used area for recreation in the Clinch Ranger District. Many people have made the Bark Camp Area their permanent home, including many of the members of the Clinch Coalition. Since the 1980s, the Bark Camp Area lost hundreds of acres of forest to heavy logging. In fact, a large amount of the Bark Camp Area has undergone clearcutting. Certain sections of the Bark Camp Area, including High Knob, have been developed for the procurement of oil and gas, projects that also have required the removal of many trees.
The Management Plan provides for careful management of the Bark Camp Area, calling for a diverse habitat, elimination of non-native species and providing an adequate healthy habitat for a variety of wildlife. The Bark Camp Area is not currently in conformity with the Management Plan in that it contains too little early successional growth. The Forest Service has estimated that, without a large phenomenon such as a forest fire, the Bark Camp Area will be devoid of early successional habitat sometime in 2004. A forest must contain a full range of habitat in order to support a diverse population of wildlife; however, the forests of Virginia, Kentucky and West Virginia do not contain such a full range of habitat. This includes the Bark Camp Area. As a result, the Forest Service took action to remedy the situation in the Bark Camp Area. This action became known as the Bark Camp Timber Sale Projects.
The project at issue in this litigation has its beginnings in the late 1990s. In September 1997, the Clinch Ranger District of the Jefferson National Forest, which encompasses the Bark Camp Area, began the NEPA process by issuing a scoping notice for public comment on the Bark Camp Timber Sale Projects. Because of the great public interest in this project, the Clinch Ranger District hosted four public consensus meetings in 1999 to elicit further public commentary on how to manage the many resources in the Project area. These public comments were incorporated into the analysis of the proposed Project. Eventually, the Forest Service compiled the original Environmental Assessment, (hereinafter, "EA"), in this case and submitted it to the public for the requisite 30-day comment period. The Clinch Coalition, Virginia Forest Watch and the Southern Appalachian Biodiversity Project submitted comments or expressed interest in the Project during that 30-day period. As a result of this public commentary, the Forest Service issued a revised EA, the one at issue in this case, in March 2001.
The Bark Camp EA, which is at issue in the present action, was conducted to provide a plan for the management of vegetation in the Bark Camp Area in order to bring that area into compliance with the Management Plan. After a lengthy investigation and public comment period, the Forest Service issued the revised EA, which outlined a plan to improve timber stand through prescribed burning and removing non-native plant species. The revised EA identified eight alternatives and analyzed each alternative. Seven of the alternatives were referred to as "action" alternatives, which proposed harvesting between zero and 1,414 acres of timber. Two of the alternatives were eliminated through detailed studies. Alternative Seven was referred to as a "No Timber Harvest" alternative and included some of the associated projects, but did not include the timber harvest project. Alternative One was the "No Action" alternative that is required by NEPA. In order to accomplish this goal, the Forest Service determined that some tree harvesting must be done....
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