Heartwood, Inc. v. Agpaoa

Decision Date27 April 2009
Docket NumberCivil Action No. 07-114-KSF.
Citation611 F.Supp.2d 675
PartiesHEARTWOOD, INC. and Kentucky Heartwood, Inc., Plaintiffs v. Elizabeth L. AGPAOA, Regional Forester, and United States Forest Service, Defendants.
CourtU.S. District Court — Eastern District of Kentucky

Joe F. Childers, Getty & Childers, PLLC, Lexington, KY, for plaintiffs.

Andrew Louis Sparks, Herbert Davis Sledd, Jr., U.S. Attorney's Office, EDKY, Lexington, KY, Lawson Emmett Fite, U.S. Department of Justice — Wildlife Section, Washington, DC, For Defendants.


KARL S. FORESTER, Senior District Judge.

Currently before the Court are several motions filed by the plaintiffs, including their motion for judgment reversing the administrative decisions, which is fully briefed and ripe for review. DE #49. Also before the Court are the plaintiffs' motion for leave to file its Third Amended Complaint and motion for leave to file supplemental information. DE ##51, 67. These motions are addressed below.


Heartwood, Inc., is a not-for-profit corporation organized under the laws of Indiana. It is active in the protection of forests and native species of the eastern United States, including the Daniel Boone National Forest in Kentucky. Kentucky Heartwood, Inc. is also a not-for-profit corporation organized under the laws of Kentucky which maintains a strong interest in the protection of biodiversity and native species in the Daniel Boone National Forest. Heartwood, Inc. and Kentucky Heartwood, Inc. (collectively "Heartwood") filed this civil action for declaratory judgment and injunctive relief on April 25, 2007, challenging the actions of the defendants, Elizabeth L. Agpaoa, Regional Forester,1 and the United States Forest Service (collectively the "Forest Service"), in approving the 2003 Ice Storm Project and the revised Forest Plan for the Daniel Boone National Forest ("DBNF"). DE #1. Heartwood subsequently filed a First Amended Complaint and a Second Amended Complaint. DE ##11, 43. On May 21, 2008, the Court denied Heartwood's motion for preliminary injunction. DE #40. Currently before the Court is Heartwood's motion for leave to file its Third Amended Complaint. DE # 51.

This Third Amended Complaint makes the following allegations. First, Heartwood alleges that the 2003 Ice Storm Recovery Project was approved without preparation of an Environmental Impact Statement ("EIS") or an adequate Environmental Assessment ("EA") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332 et seq., and NEPA's implementing regulations, and was approved in violation of the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., the Administrative Procedures Act ("APA"), 5 U.S.C. § 550 et seq., and the APA's implementing regulations. Second, Heartwood alleges that the recently adopted DBNF Revised Forest Plan fails to meet the minimally required elements of forest-wide management in violation of NEPA and NFMA. Finally, Heartwood alleges that the DBNF Revised Forest Plan and the Ice Storm Recovery Project violate the Endangered Species Act, ("ESA"), 16 U.S.C. §§ 1531-1544.


Congress enacted NFMA in 1976, emphasizing the concepts of "multiple use" and "sustained yield of products and services" and obligating the Forest Service to balance competing demands on national forests, including timber harvesting, recreational use, and environmental preservation. Natural Resources Defense Council v. U.S. Forest Service, 421 F.3d 797, 801 (9th Cir.2005) (quotations and citations omitted). The Forest Service manages each forest unit at two different levels: (1) the programmatic level, and (2) the project, or site-specific, level. Colo. Envtl. Coal v. Dombeck, 185 F.3d 1162, 1167-68 (10th Cir.1999). At the programmatic level, the Forest Service must develop land and resource management plans, commonly known as Forest Plans, for each unit of the National Forest System. 16 U.S.C. § 1604(a),(e), (g)(3)(B). Because the Forest Service must account for a variety of different interests, each Forest Plan envisions the forest will be used for multiple purposes, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." Id. at § 1604(e)(1). Additionally, the Forest Plan must provide for "diversity of plant and animal communities based on the suitability and capability of the specific land area." Id. at § 1604(g)(3)(B).

Pursuant to NFMA, the Forest Service has promulgated regulations, or planning rules, applicable to developing and revising Forest Plans. Both parties agree that the 2000 NFMA planning rules, codified at 36 C.F.R. § 219.10 (2000), apply to the DBNF Revised Forest Plan currently before the Court. Pursuant to 36 C.F.R. § 219.10(g)(2000), Forest Plans are to be revised on a 10-15 year cycle.

When preparing or revising a Forest Plan, the Forest Service must produce a Draft Environmental Impact Statement ("DEIS") which must be circulated for public review and comment according to NEPA procedures. 36 C.F.R. § 219.10(b) (2000). In the DEIS, the Forest Service must identify the agency's preferred alternative. Id. A Proposed Forest Plan that reflects the preferred alternative is also prepared and circulated along with the DEIS. Id.

After considering public comment on the DEIS and Proposed Forest Plan, the Forest Service may make any necessary changes and a Final EIS and Proposed Forest Plan is prepared for comment. Id. at 219.10(c). The Regional Forester then reviews the comments, the Final EIS and the Proposed Forest Plan and either approves or disapproves the Proposed Forest Plan. Id.

The Forest Plan, then, is implemented at the project, or site-specific level, by approving or disapproving particular projects under NEPA using an environmental impact statement, an environmental assessment, or a categorical exclusion. All projects must comply with the Forest Plan. Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir. 2006); see 16 U.S.C. § 1604(i).


NEPA was promulgated, in part, to focus the attention of the government and the public on a proposed action, so that the consequences of the action can be studied before it is implemented. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Michigan v. United States, 994 F.2d 1197, 1199 (6th Cir.1993) (holding that the purpose of NEPA is to ensure that federal agencies are aware of the environmental impact of their actions). While NEPA prescribes the necessary process by which federal agencies must take a hard look at the environmental consequences of a proposed course of action, it imposes no "substantive limits on agency conduct." See Friends of the Bow v. Thompson, 124 F.3d 1210, 1213 (10th Cir.1997)(citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)).

NEPA requires that before an agency may take "major Federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), such as drafting or revising a Forest Plan, the agency must prepare an Environmental Impact Statement ("EIS"). Id. § 4332(2)(C);2 see also 40 C.F.R § § 1502.3-1502.25. An EIS contains the agency's consideration of the environmental impacts of the proposed action and an evaluation of the "alternatives to the proposed action," id. at § 4332(2)(C)(iii), including the option of taking "no action," 40 C.F.R. § 1502.14(d). However, despite this mandate, if after a careful examination through an Environmental Assessment ("EA"),3 it is determined that the action would not be "significant," then an EIS is not necessary. 40 C.F.R. § 1508.13. Thus, at the conclusion of the EA, the Forest Service prepares either a Finding of No Significant Impact ("FONSI") or a Finding of Significant Impact and an EIS, id. § 1508.11. Throughout this process, the "environmental information [collected must be made] available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA." Id. § 1500.1(b).


As indicated by its name, the Endangered Species Act, or ESA, was enacted in 1973 "to protect and conserve endangered and threatened species and their habitats." National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 2526, 168 L.Ed.2d 467 (2007). The key term in the ESA—"conservation"— means "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary...." 16 U.S.C. § 1532(3). In short, the ESA attempts to insure the continued existence of endangered and threatened species.

The ESA mandates that Federal agencies place conservation above any of the agency's competing interests. The United States Supreme Court examined this conservation requirement in Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978):

The plain intent of Congress in enacting this statute [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost ... [T]he legislative history undergirding § 7 [requiring interagency consultation, discussed below] reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies ...


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1 books & journal articles
  • Jurisdictional procedure.
    • United States
    • William and Mary Law Review Vol. 54 No. 1, October 2012
    • October 1, 2012
    ...recognized. (28.) See Heartwood, Inc. v. Myers, 628 F.3d 261, 265 (6th Cir. 2010); Complaint [paragraph] 5, Heartwood, Inc. v. Myers, 611 F. Supp. 2d 675 (E.D. Ky. 2009) (No. 5:07-cv-114); About Kentucky Heartwood, CAUSES.COM, http://www.causes.com/causes/103428-kentuckyheartwood/about (las......

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