House v. U.S. Forest Service, U.S. Dept. of Agri.

• Decision Date: 29 May 1997
• Docket Number: Civil Action No. 96-446.
• Citation: 974 F.Supp. 1022
• Parties: Bob HOUSE, Chris Schimmoeller, Kentucky Heartwood, Inc., and Heartwood, Inc., Plaintiffs, v. UNITED STATES FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE; Donnie Richardson, acting in his official capacity as District Ranger for the Stanton District of the Daniel Boone National Forest; and Robert Joslin, acting in his official capacity as Regional Forester for the Southern Region, U.S. Forest Service, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

974 F.Supp. 1022

Bob HOUSE, Chris Schimmoeller, Kentucky Heartwood, Inc., and Heartwood, Inc., Plaintiffs, v. UNITED STATES FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE; Donnie Richardson, acting in his official capacity as District Ranger for the Stanton District of the Daniel Boone National Forest; and Robert Joslin, acting in his official capacity as Regional Forester for the Southern Region, U.S. Forest Service, Defendants.

Civil Action No. 96-446.

United States District Court, E.D. Kentucky.

May 29, 1997.

COPYRIGHT MATERIAL OMITTED

Joe F. Childers, Lexington, KY, for plaintiffs.

Jane E. Graham, U.S. Attorney's Office, Lexington, KY, Kelly E. Mofield, Thomas M. Sullivan, U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, for defendants.

Wayne F. Collier, Shelby C. Kinkead, Jr., Kinkead, Stilz & Alford, Jane Marie Watts, Lexington, KY, Amicus.

OPINION AND ORDER

FORESTER, District Judge.

Before the Court are the parties' cross motions for summary judgment, as well as several procedural motions. All matters have been fully briefed and are ripe for review.

I. INTRODUCTION

This is a civil case brought against the United States Forest Service, U.S. Dept. of Agriculture ("Forest Service"), and employees and agents of the Forest Service in their official and individual capacities, to-wit: Donnie Richardson, District Ranger for Stanton District of Daniel Boone National Forest, and Robert Joslin, Regional Forester for the Southern Region of the Forest Service, for declaratory and injunctive relief to prevent the Forest Service from proceeding with a proposed timber sale on Leatherwood Fork, a tributary of Indian Creek, on Indian Creek, and on Spaas Creek, a tributary of Red River (hereinafter referred to as the "Leatherwood Fork timber sale"). The targeted area is located in the Stanton Ranger District of the Daniel Boone National Forest in Powell and Menifee Counties, in a part of the Daniel Boone National Forest which is close in proximity to the Red River Gorge Geologic Area.

Plaintiffs, Bob House, Chris Schimmoeller, and Kentucky Heartwood, Inc., allege that defendants have violated or failed to adhere to procedures set forth in the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"), the National Environmental Policy Act, 42 U.S.C. § 4332 et seq. ("NEPA"), and the Administrative Procedure Act, 5 U.S.C. § 702 et seq. ("APA"), by authorizing the Leatherwood Fork timber sale, which plaintiffs submit will harm the Indiana bat, an endangered species.

Plaintiffs seek relief in the form of a permanent injunction levied against the Forest Service which would prohibit it from offering the timber for sale. Each claim is analyzed separately below.

II. FACTUAL BACKGROUND

The Daniel Boone National Forest encompasses close to 690,000 acres. The Leatherwood Fork area encompasses approximately 2,793 acres of the Daniel Boone National Forest. The forest is home to the Indiana bat or Myotis sodalis, an insectivorous nocturnal mammal capable of true flight. Indiana bats are known to be present in several cave systems within a one-mile radius of the Leathenvood Fork timber sale area. The bats feed in the forest on local insect populations in the fall before hibernation and again in the spring upon emerging from hibernation. Additionally, Indiana bats may continue to roost in the caves as well as in tree cavities, beneath exfoliating and/or sloughing bark, and within standing dead trees throughout the summer, and continue to forage locally during this time.¹

Management activities of the Daniel Boone National Forest are governed by the Land and Resource Management Plan ("LRMP" or "Forest Plan") which was adopted in 1985 and amended nine times thereafter. [AR, 2A]. The Forest Plan provides standards and guidelines for managing the forest. Of course, the management of the forest is also subject to federal environmental laws, to-wit: the ESA, the NFMA, and the NEPA.

During 1992, the Forest Service began reviewing the possibility of implementing timber harvest on the Leatherwood Fork area. As it currently stands, the Leatherwood Project consists of seven separate cutting units that will harvest commercial saw timber and firewood on approximately 199 acres. [AR, Tab 52 # 2]. The project also entails the construction and/or reconstruction of approximately 2.6 miles of logging roads. Of the seven separate units that comprise the Leatherwood Fork timber sale, three of the units will be logged using a more costly, but less intrusive, method of logging referred to as "cable logging." [AR, Tab 52 2]. The remaining four units will be logged by skidders. Id. All the sale units will be harvested under a modified two-aged shelterwood cut² Id. As part of the sales operating provisions, at least three potential Indiana bat roost trees for each acre harvested will be retained, large old beech or sugar maple trees will be retained as den trees wherever possible, and all standing dead trees will be left intact. [AR, Tab 3 8 11]. Additionally, within one mile of the Indiana bat hibernation cave, 3 to 4 live trees around each snag that is at least 16 inches in diameter will be retained, and all shagbark hickories will be retained. Moreover, pursuant to the sales operating provisions, sixteen seasonal wildlife ponds at the ridgetop area of the sale and four waterholes will be constructed. [AR, Tab 52 2]. All 199 acres will be reforested by natural regeneration. Id.

Said project involved an environmental analysis ("EA") under NEPA, NFMA, and the ESA. Additionally, defendants prepared a biological evaluation ("BE") regarding the effects, if any, the proposed project would have on threatened and endangered species, including the endangered Indiana bat. [AR, Tab 36]. Defendants concluded that the timber project was "not likely to adversely affect" any endangered species including the Indiana bat. [AR, Tab 36 20].

Thereafter, on October 31, 1995, as part of the ESA consultation process, the Forest Service delivered the BE to Fish & Wildlife for review. [AR, Tab 37]. On March 11, 1996, Fish & Wildlife concurred in writing with the Forest Service's conclusion that the proposed action was "not likely to adversely affect threatened or endangered species," specifically the Indiana bat. [AR, Tab 50].

In accordance with the Forest Service's procedures, the Forest Service, in early 1996, provided public notice of the proposed timber sale by mailing their EA with a letter identifying the proposed action to interested persons. 36 C.F.R. § 215.5(b)(2)(i). [AR, Tab 39, 40].³ Pursuant to 36 C.F.R. §§ 215.6(a), (d), comments on the EA were accepted for a 30-day period. Plaintiffs submitted formal and detailed comments in February 1996, and the same were addressed by the Forest Service. [AR, Tab 51]. On April 10, 1996, District Ranger Richardson approved the Leatherwood Fork timber sale. Hence, the Forest Service issued a Finding of No Significant Impact ("FONSI"), and in compliance with 36 C.F.R. § 215.9, published a Notice of the Decision in a local newspaper. [AR, Tab 53].

On May 24, 1996, plaintiffs Schimmoeller and House filed an administrative appeal with the Department of Agriculture within the time prescribed by 36 C.F.R. § 215.13. [AR, Tab 55]. Regional Forester Joslin denied plaintiffs' appeal on July 23, 1996. [AR, Tab 69]. Hence, plaintiffs have exhausted their administrative remedies.

On May 20, 1997, the Forest Service opened the bidding and received at least one bid. However, the Forest Service agreed to refrain from awarding the bid until the issuance of this Court's opinion and order which disposes of the parties' cross motions for summary judgment and therefore resolves this matter.

III. STANDARD OF REVIEW

In reviewing the decision of defendants to proceed with the Leatherwood Fork timber sale, this Court employs the narrow "arbitrary and capricious" standard of review under the Administrative Procedure Act, 5 U.S.C. § 702 et seq.⁴ The Court, limited solely to review what is contained in the administrative record,⁵ must determine whether defendants' "decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment," and therefore, was arbitrary and capricious. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971); Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 506 (6th Cir.1995).

The Court is not empowered to substitute its judgment for that of the agency. Id. With that rule of law in mind, the Court does not seek to be a "Super Forest Service", however, it must act as a check on administrative decisions. In a recent opinion, the Sixth Circuit eloquently explained the Court's role in cases such as the one at bar:

While it is generally accepted that federal agencies are entitled to a presumption of good faith and regularity in arriving at their decision, that presumption is not irrebuttable. [This Court] would be abdicating [its] Constitutional role were [it] simply to "rubber stamp" this complex agency decision rather than ensuring that such decision is in accord with clear congressional mandates. It is [the Court's] role to see that important legislative purposes are not lost or misdirected in the vast hallways of the federal bureaucracy. Specifically, [the Court] decide whether the Forest Service took a hard look at the relevant factors and reached a decision that was neither arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

Sierra Club v. Thomas, 105 F.3d 248, 250 (6th Cir.1997), reh'g and suggestion of reh'g en banc denied

IV. ANALYSIS

A. Whether Defendants Violated The Endangered Species Act, 16 U.S.C. § 1531 et seq.

As indicated by its name, the ESA, enacted in 1973, was passed for the purpose of "provid[ing: (1)] a means whereby the eco-systems upon which...