Forest Conservation Council v. Jacobs, CIV.A.1:03-CV1230ODE.

• Decision Date: 16 June 2005
• Docket Number: No. CIV.A.1:03-CV1230ODE.,CIV.A.1:03-CV1230ODE.
• Parties: FOREST CONSERVATION COUNCIL; Ouachita Watch League; Jerry Williams; and Sierra Club Plaintiffs v. Robert JACOBS, in his official 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; the United States Forest Service, an agency of the United States Department of Agriculture; Ann Veneman, in her official capacity as Secretary of the U.S. Department of Agriculture; and the United States Department of Agriculture Defendants
• Court: U.S. District Court — Northern District of Georgia

374 F.Supp.2d 1187

FOREST CONSERVATION COUNCIL; Ouachita Watch League; Jerry Williams; and Sierra Club Plaintiffs v. Robert JACOBS, in his official 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; the United States Forest Service, an agency of the United States Department of Agriculture; Ann Veneman, in her official capacity as Secretary of the U.S. Department of Agriculture; and the United States Department of Agriculture Defendants

No. CIV.A.1:03-CV1230ODE.

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

June 16, 2005.

COPYRIGHT MATERIAL OMITTED

Donald D.J. Stack, Stack & Associates, Atlanta, GA, Eric Eugene Huber, Sierra Club, Boulder, CO, Jonathan Lee Schwartz, Jon L. Schwartz, Attorney at Law, P.C., Atlanta, GA, for Quachita Watch League, Jerry Williams, Forest Conservation Council, Sierra Club, Plaintiffs.

Brian C. Toth, 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, GA, for Robert Jacobs in his official 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, United States Forest Service an agency of the United States Department of Agriculture, Ann Veneman in her official capacity as Secretary of the U.S. Department of Agriculture, and, United States Department of Agriculture, Defendants.

ORDER

ORINDA D. EVANS, District Judge.

In this civil action, environmental organizations ["Plaintiffs"] seek declaratory and injunctive relief against the U.S. Department of Agriculture ("USDA"), the U.S. Forest Service and officers of the Forest Service and USDA ["Defendants"]. Plaintiffs' primary claim is that the actions of Defendants in approving five projects in the Ouachita National Forest in Arkansas¹ were arbitrary and capricious. This claim is based on the contention that Defendants lacked "adequate population inventory information" for federally protected species ("PETS") and "quantitative data" for management indicator species ("MIS"). Plaintiffs allege this violated (1) the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687; (2) the provisions of the Ouachita Forest Plan; and (3) regulations promulgated under NFMA. Plaintiffs also claim that Defendants violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, by approving five projects pursuant to deficient environmental assessments and without preparing full environmental impact statements.

"Neither NFMA nor NEPA provides a cause of action." Tulare County v. Bush, 306 F.3d 1138, 1143 (D.C.Cir.2002); see also Lujan v. National Wildlife Federation, 497 U.S. 871, 872, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The Court's jurisdiction is derived from the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706.

In December 2003 the Court granted in part Plaintiffs' Motion for a TRO [# 60]. That order restrained Defendants from permitting logging or road construction activities at the following five sites in the Ouachita National Forest:

(1) Gafford Creek Watershed project;

(2) Kinsey Ecosystem project;

(3) Middle North Fork of the Ouachita River project;

(4) Kingdoodle Ecosystem Management project; and

(5) Logan Side Ecosystem Management project.

An evidentiary hearing was held in January, 2004 on Plaintiffs' Motion to convert the TRO into a Preliminary Injunction. In August, 2004 the Court denied that motion [# 140]. However, in light of the complexity of the case, the delays in compiling a reviewable administrative record and the pending summary judgment motions, the Court ordered that the TRO remain in effect.

This case is now before the Court on the parties' cross motions for summary judgment. Plaintiffs' motion is DENIED and Defendants' motion is GRANTED. The Temporary Restraining Order is VACATED.

I. FACTUAL AND LEGAL BACKGROUND

A. The National Forest Management Act

The Ouachita National Forest, located in Arkansas and Oklahoma, contains over two million acres of land. The Forest Service manages the Forest primarily under the National Forest Management Act ("NFMA"), §§ 1600-1687, which requires the development of a land and resource management plan ("Forest Plan") for each forest. 16 U.S.C. § 1604. The Forest Plan must provide for multiple uses of the forest, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1).

In order to ensure compliance with NFMA and the Forest Plan, the Forest Service also must conduct an analysis of each "site specific" action such as a timber sale. 16 U.S.C. § 1604(I). The Supreme Court in Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998), described the process as follows. The Forest Service must (1) propose a specific project area and describe the methods to be used; (2) ensure that the project is consistent with the Forest Plan; (3) provide those affected with notice of the proposed project and an opportunity to be heard; (4) conduct an environmental analysis; and (5) make a final decision which affected persons may challenge in an administrative appeals process (first with an appeal reviewing officer, then with an appeal deciding officer — here, the Regional Forester) and in court (APA review of final agency action, as here). See Id. at 729-30, 118 S.Ct. 1665.

NFMA mandates that "wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 16 U.S.C. § 1604(g)(3)(B); 36 C.F.R. § 219.19.² "Planning area" means "the area of the National Forest System covered by a regional guide or Forest Plan" as opposed to a specific project area. 36 C.F.R. 219.3. In conducting forest planning the Forest Service is required to "estimate the effects of each [management] alternative on fish and wildlife" species that are selected "because their population changes are believed to indicate the effects of management activities." 36 C.F.R. § 219.19(a)(1). These species are known as "Management Indicator Species" ("MIS") because they act as indicators for the relative success of forest management.³

Of central importance to this case are two MIS-related regulations promulgated under NFMA. 36 C.F.R. § 219.19(a)(6) requires that "[p]opulation trends of the management indicator species will be monitored and relationships to habitat changes determined." 36 C.F.R. § 219.26 requires the Forest Service to utilize "quantitative" data in its analysis of species diversity:

Forest Planning shall provide for the diversity of plant and animal communities and tree species consistent with the overall multiple use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition.

"Diversity" is "[t]he distribution and abundance of different plant and animal communities and species within the area covered by a [Forest Plan]." 36 C.F.R. § 219.3.

In Sierra Club v. Martin, 168 F.3d 1, 4-7 (11th Cir.1999), the United States Court of Appeals for the Eleventh Circuit held that logging projects in the Chattahoochee National Forest could not proceed because the Forest Service did not have quantitative MIS data in compliance with these regulations. The significance of Martin's holding is central to this case and is discussed in detail below.

B. National Environmental Protection Act

Unlike NFMA, the National Environmental Protection Act ("NEPA"), 42 U.S.C. §§ 4321-4347, "imposes procedural but not substantive requirements" on federal agencies. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir.1996). "NEPA does not work by mandating that agencies achieve particular substantive environmental results," Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), but rather by requiring that agencies study and consider the environmental consequences of proposed actions before the actions are taken. Fund for Animals, 85 F.3d at 546.

The heart of NEPA is its requirement that federal agencies prepare an environmental impact statement ("EIS") as part of any "proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(Copr.); Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 2384, 159 L.Ed.2d 137 (2004). In order to determine whether a proposed action is a "major" one which "significantly" affects the human environment, agencies may produce a shorter document, known as an environmental assessment ("EA"). 40 C.F.R. § 1501.4; Fund for Animals, 85 F.3d at 546. "The purpose of an EA is to `[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.' "Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir.1998) (quoting 40 C.F.R. § 1508.9(a)(1)). A "finding of no significant impact" ("FONSI") means that an environmental impact statement is not required. 40 C.F.R. § 1501.4; Dep't of Transportation v. Public Citizen, 541 U.S. 752, 124 S.Ct. 2204, 2209-10, 159 L.Ed.2d 60 (2004).

Forest Plans adopted under NFMA must comply with NEPA. 16 U.S.C. § 1604(g)(1). NEPA also applies to amendments to a Forest Plan, and to projects within a forest. 16 U.S.C. § 1604(I).

C. The Ozark/Ouachita Vegetation Management Plan and the Ouachita National Forest Plan

In 1990, Defendants issued a document entitled "Final Environmental Impact Statement for Vegetation Management in the Ozark/Ouachita Mountains." The document covers...