Gregson v. U.S. Forestry Service, LR-C-97-1004.

• Decision Date: 21 August 1998
• Docket Number: No. LR-C-97-1004.,LR-C-97-1004.
• Citation: 19 F.Supp.2d 925
• Parties: Linda GREGSON and Tom McKinney, Plaintiffs, v. U.S. FORESTRY SERVICE, Lynn Neff, Forest Supervisor, Ozark-St. Francis National Forest, Robert Joslin, Regional Forester, U.S. Forestry Service, and George Rogers, District Ranger, Defendants, v. ARKANSAS FORESTRY ASSOCIATION, Ozark-St. Francis National Forest Renewable Resources Council, and Bibler Brothers, Inc., Intervenors.
• Court: U.S. District Court — Eastern District of Arkansas

Page 925

19 F.Supp.2d 925

Linda GREGSON and Tom McKinney, Plaintiffs, v. U.S. FORESTRY SERVICE, Lynn Neff, Forest Supervisor, Ozark-St. Francis National Forest, Robert Joslin, Regional Forester, U.S. Forestry Service, and George Rogers, District Ranger, Defendants, v. ARKANSAS FORESTRY ASSOCIATION, Ozark-St. Francis National Forest Renewable Resources Council, and Bibler Brothers, Inc., Intervenors.

No. LR-C-97-1004.

United States District Court, E.D. Arkansas, Western Division.

August 21, 1998.

Dale W. Finley, Richard H. Young, Young & Finley, Russellville, AR, for Plaintiffs.

Searcy W. Harrell, Jr., Harrell & Lindsey, P.A., Camden, AR, for intervenors.

Kenneth F. Stoll, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT

EISELE, District Judge.

Before the Court are defendants' and intervenors' separate Motions for Summary Judgment. The movants contend that, based upon the Administrative Record below, they are entitled to judgment as a matter of law in this action arising under the Administrative Procedure Act, 5 U.S.C. §§ 701-06 ("APA"); the National Forest Management Act, 42 U.S.C. § 4321, et seq. ("NFMA"); National Environmental Policy Act, 16 U.S.C. § 1600, et seq. ("NEPA"); and the Land Resource Management Plan for the Ozark-St. Francis National Forests. The Court has reviewed the parties' submissions, and for the reasons set forth below will grant defendants' motion for summary judgment and will dismiss as moot intervenors' motion for summary judgment. Thus, the administrative decision below will be affirmed.

I. BACKGROUND

Situated in Northwest Arkansas, the Ozark National Forest contains over 1.1 million acres of National Forest System land. In 1986, the United States Forest Service ("the Forest Service") produced a Land Resource Management Plan ("LRMP") for the Ozark-S. Francis National Forests. An Environmental Impact Statement ("EIS") was prepared, and a Record of Decision ("RD") was issued on July 29, 1986. Administrative Record ("AR"), Part B., Vol. 1, Tabs 1 & 3. Waldo Mountain is located within the Ozark National Forest. On January 17, 1997, the District Ranger for the Bayou Ranger District of the Ozark-St. Francis issued a notice of a proposed project called the Waldo Mountain Timber Sale and Wildlife Habitat Improvement Project (the "Waldo Project"). AR, Part A, Tab 1. The Forest Service proposed the harvesting and sale of timber, the commercial thinning of pine areas, as well as other activities within a 26,680 acre area known as the Waldo Mountain Landscape. Plaintiff Tom McKinney was mailed a copy of the Waldo Mountain Landscape Analysis Report and related scoping materials. AR, Part A, Tabs 3 & 7. Plaintiff Linda Gregson was not mailed these materials.

A comment period followed, after which the Forest Service prepared an Environmental Assessment ("EA") containing its proposed action and four alternative courses of action (which included a "no action" alternative). AR, Part A, Tab 13. The Waldo Project EA is 118 pages, and it contains over 80 pages of appendices. On May 9, 1997, a copy of the EA was sent to interested individuals, including Mr. McKinney, and a legal notice was published in the Russellville Courier Democrat on May 11, 1997. AR, Part A, Tab 16.

On June 19, 1997, after a 30 day comment period, the District Ranger entered a Notice of Decision ("DN") and a Finding of No Significant Impact ("FONSI"), which means that an EIS was not prepared for the Waldo Project. In the end, the District Ranger opted to implement Alternative IV from the EA, which was not its preferred alternative.

On August 7, 1997, plaintiff McKinney filed a Notice of Appeal pursuant to 36 C.F.R. § 215, et seq. AR, Part A, Tab 30. Plaintiff Gregson did not file an administrative appeal. The Appeal Deciding Officer for the Department of Agriculture for the most part rejected Mr. McKinney's Appeal and issued an eleven page decision. AR, Part A, Tab 39. The Deciding Officer concluded "that the District Ranger has adequately addressed the issue you raised in your [notice of appeal] in the EA and DN/FONSI on the Waldo Mountain timber sale project except for the issue (Issue 7) of consultation with the [United States Fish and Wildlife Service].... I find that the environmental effects disclosure in the EA is appropriate and adequate for this project and supports the District Ranger's conclusion that the selected actions will not have a significant impact on the quality of the human environment." Id. at 39-11.

Plaintiffs challenge the Forest Service's implementation of the Waldo Project on the Bayou Ranger District of the Ozark National Forest, seeking judicial review of the Forest Service's decision to implement the Project. First Am. Pet. for Inj. Relief ¶¶ 5 — 13. They contend that the Project violates the NEPA and the NFMA. Id. ¶ 2. And they seek "to enjoin the Forest Service from timber sales and logging until it remedies the violations of law and inadequacies [set forth in the Complaint.]" Id. ¶ 1.

Plaintiffs seek a declaratory judgment establishing that defendants' approval of the Project is unlawful under the NFMA, the NEPA, and relevant regulations. Plaintiffs further seek an Order "enjoining all further activity pursuant to Defendants' approval of [the Project] including the awarding of any timber sale contracts, the felling, yarding and removal of trees, the construction or closing of any roads, and other activities." Id., page 25. On May 4, 1998, the Court granted the intervenors' petition to intervene in this action as party defendants.

Defendants contend they are entitled to summary judgment for several reasons. First, they contend that plaintiff Gregson entirely failed to exhaust her administrative remedies prior to bringing this action. Defendants further assert that Mr. McKinney impermissibly seeks to raise issues not raised during his administrative appeal. Finally, based upon the Administrative Record ("AR") below, defendants claim that the Deciding Officer's decision should be upheld as a matter of law on the remaining NFMA and NEPA claims. Intervenors have also filed motions for summary judgment, focusing primarily on the merits of plaintiffs' case. Because the Court is granting summary judgment based upon the arguments advanced by the defendants, the Court need not formally rule on the intervenors' motion for summary judgment.

II. ANALYSIS

A. Standard of Review and Record on Review

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment should be granted so long as whatever is before the Court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Review of final agency action under the NEPA and NFMA is governed by the APA, which directs a reviewing court to affirm final agency action unless that action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The ultimate standard of review is a narrow one, and the Court is not empowered to substitute its judgment for that of the agency. Instead, it is to determine whether "the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416, 91 S.Ct. 814; Newton County Wildlife Ass'n. v. Rogers, 948 F.Supp. 50, 51 (E.D.Ark.1996), aff'd 141 F.3d 803 (8th Cir.1998)(citing Collins Securities Corp. v. FDIC, 145 B.R. 277, 283 (E.D.Ark.1992)). Furthermore, the Court generally must confine its review to the administrative record and issues presented to, and considered by, the agency. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

The Court has reviewed the three volume Administrative Record in light of the Deciding Officer's decision and plaintiffs' petition for injunctive relief. It is clear that the Administrative Record in this case is more than sufficient to permit the Court to resolve the legal issues raised in defendants' motion for summary judgment. Thus, the Court rejects plaintiffs' argument that "[d]iscovery is not complete and no depositions have been scheduled" and that "there is no way for either party to make a complete argument to the court to allow the court to make an informed decision." If the agency record is not adequate, the proper procedure is to remand the case for additional investigation. Newton County Wildlife, 141 F.3d at 807. Because the record is ample, remand for further proceedings is not necessary. The Court further concludes that there has been no showing of bad faith or improper behavior which would justify discovery or evidentiary supplementation of the Administrative Record. See id.

B. Linda Gregson Has Failed to Exhaust Administrative Remedies

A reviewing court must refuse to conduct an APA review when a plaintiff has failed to exhaust her administrative remedies. Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); Sharps v. United States Forest Service, 28 F.3d 851 (8th Cir.1994). And the Forest Service has established mandatory appeal procedures. See 36 C.F.R. § 215, et seq. Before implementation, proposed national forest land and resource management plans, as well as proposed timber harvests, require a "notice and comment" procedure. Id. § 215.3(a) & (b). Section 215.5(b)(1) requires publication in a newspaper of general circulation. Section 215(b)(2)(i) & (ii) require that notice be sent to persons who have...