Kentucky Heartwood, Inc. v. Worthington
| Decision Date | 18 June 1998 |
| Docket Number | Civil Action No. 97-378. |
| Citation | 20 F.Supp.2d 1076 |
| Parties | KENTUCKY HEARTWOOD, INC., et al., Plaintiffs, v. Benjamin WORTHINGTON, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Jeffrey Brent Austin, Austin & Ward, Lexington, KY, Joe F. Childers, Robert T. Gallagher, Lexington, KY, for Kentucky Heartwood, Inc., Heartwood, Inc., plaintiffs.
Jane E. Graham, U.S. Attorney's Office, Lexington, KY, Lois J. Schiffer, U.S. Department of Justice, Environment & Natural Resources Div., Washington, DC, Kelly E. Mofield, Lisa Holden, U.S. Department of Justice, Environment & Natural Resources, Washington, DC, Andrew A. Smith, Kenneth E Kellner, U.S. Department of Justice, Environmental & Natural Resources Div., Washington, DC, for Benjamin Worthington, Elizabeth Estill, United States Forest Service, Department of Agriculture, defendants.
Wayne F. Collier, Kinkead & Stilz, Lexington, KY, for Kentucky Forest Industries Ass'n, Inc.
On September 5, 1997, plaintiffs filed a verified complaint in the U.S. District Court for the Eastern District of Kentucky. Plaintiffs, Kentucky Heartwood Inc. ("Kentucky Heartwood") and Heartwood Inc. ("Heartwood"), are non-profit corporations organized for protecting biodiversity and ecosystem integrity on public and other forested land in Kentucky and the central hardwood region. In their civil action for declaratory and injunctive relief, plaintiffs name as defendants the U.S. Forest Service, Department of Agriculture ("Forest Service"), and employees and agents of the same in their official capacities, to wit, Benjamin Worthington, Forest Supervisor for the Daniel Boone National Forest ("Daniel Boone Forest") and Elizabeth Estill, Regional Forester for the Southern Region. Plaintiffs seek declaratory and injunctive relief to prevent the Forest Service from proceeding with logging on the Daniel Boone Forest until the Forest Service complies with the applicable law and administrative regulations.1
The Court allowed Kentucky Forest Industries Association, Inc. ("KFIA") to intervene. KFIA is a Kentucky non-profit corporation having as its primary purpose the timber industry in general and more specifically the support of its members, many of whom operate mills and other businesses that depend in whole or in part upon the timber harvested pursuant to timber contracts granted by the Forest Service to various stands of timber within the Daniel Boone Forest.
The Daniel Boone Forest is located in Eastern Kentucky and contains nearly two million acres. Of the vast body of land, 669,379 acres are federally owned lands managed by the Forest Service.
The proclaimed boundaries of the Daniel Boone form a narrow strip of land 140 miles long on the western edge of the Cumberland Plateau; the Redbird Purchase Unit lies in the eastern portion of the Plateau. As is characteristic of many National Forests in the East, the Daniel Boone is not circumscribed as one large unit of ownership and its Districts are separated geographically from each other.
Introduction of the Forest Plan, at I-3-4.
The rugged topography of the Daniel Boone Forest, which lay above sedimentary rocks formed from sand, silt, and clay, as well as limestone laced with coal pockets, is cut by the Licking, Kentucky, and Cumberland Rivers and their respective off-shooting streams and bodies of still water. Management Situation of the Forest Plan, at II-1-2. The "climate of the [Daniel Boone Forest] is temperate with moderately cold winters and warm, humid summers[, with precipitation] fairly well distributed throughout the year." Id. at II-3.
The deciduous forest is home to a wide variety of trees which compose the overstory of the forest, to-wit, Northern Red Oak, Red Oak, Black Oak, Scarlet Oak, Southern Red Oak, Basswood, Beech, Yellow Poplar, Sugar Maple, Birch, Red Maple, Hemlock, White Oak, Hickories, Short Leaf Pine, Pitch Pine, Table Mountain Pine, Loblooy Pine, American Chestnut, Chestnut Oak, Virginia Pine, as well as many noncommercial trees and shrubs. Id. at II-4-5. The understory of the forest is comprised of Rhododendron, Fern-Ephemerals, Mountain Laurel, Blueberry, Huckleberry, Dogwood, Sourwood, Black Gum, as well as White Goldenrod and Canadian Yew. Id. at II-5.
Within the forest the following fauna can be found: Eastern Chipmunk, Southern Flying Squirrel, Deer Mouse, various species of bats, Spotted Skunk, Eastern Woodrat, and Eastern Bobcat. Id. The species of birds which reside in the forest vary; the most common include: Warblers, Flycatchers, Ovenbird, American Restart, Yellow-Throated Vireo, Pin Warbler, Scarlet Tanager, Red-Cockaded Woodpecker, Ruffed Grouse, Black-Billed Cuckoo, Black-Throated Warbler, and Pine Warbler. Id. Additionally, the forest is home to various amphibians and reptiles including, Lungless Salamanders, Broadhead Skink, Box Turtle, Pine Snake, Green Salamander. Id. Within the waters in the forest live various species of non-game fish as well as gaming fish including, Rainbow Trout, Muskie, Largemouth Bass, Smallmouth Bass, Bluegill, Crappie, and Catfish. Id. at II-16. In season, sportspersons hunt White-Tailed Deer, Wild Turkey, Squirrel, Quail, Ruffed Grouse, Rabbit, Woodcock, Fox Raccoon, and Dove, which also live in the forest. Id. at II-15.
At the time of the adoption of the 1985 Forest Plan for the Daniel Boone Forest, fifteen (15) federally listed endangered or threatened species of plants and animals were known to exist in counties covered by the Daniel Boone Forest. Plaintiffs' Reply to KFIA's Response to Plaintiffs' Motion for a Preliminary Injunction, at p. 2. These species include: Indiana Bat, Gray Bat, Virginia Big-Eared Bat, Eastern Cougar, Bald Eagle, Peregrine Falcon, Red-Cockaded Woodpecker, Appalachian Monkeyface Pearly Mussel, Cumberland Bean Pearly Mussel, Dromedary Pearly Mussel, Tan Riffleshell, Yellow-Blossom Pearly Mussel, Orange-Footed Pearly Mussel, Pink Mucket Pearly Mussel, and Rough Pigtoe. Id. at p. 4. Since 1985, eighteen (18) new species of plants and animals have been added to the federal list of endangered or threatened species in counties within the Daniel Boone Forest. Id. at p. 2. These species include: Running Buffalo Clover, Blackside Dace, Cumberland Sandwort, White-Haired Goldenrod, Little-Wing Pearly Mussel, Cracking Pearly Mussel, Ring Pink, Virginia Spiraea, Fanshell, Purple Cats Paw Pearly Mussel, Cumberland Rosemary, American Chaffseed, Northern Riffleshell, Clubshell, Palezone Shiner, Cumberland Combshell, Oyster Mussel, and Cumberland Elktoe. Id. at p. 2-3.
In addition to being the home of the above-listed flora and fauna, the Daniel Boone Forest offers a wide spectrum of recreational opportunities, to-wit, primitive to luxury camping, hiking 536 miles of trails, rock climbing, bicycling, hunting, picnicking, geological area viewing, boating, sailing, water skiing, and fishing. Management Situation of the Forest Plan, at II-18.
The Daniel Boone Land and Resource Management Plan ("the Forest Plan") was adopted in 1985, along with its accompanying Environmental Impact Statement ("EIS"), and has been used as the primary document governing the management of the Daniel Boone Forest.2 Of course, the management of the forest is also subject to federal environmental laws, to-wit: the ESA, the NFMA, and the NEPA. Plaintiffs have never formally challenged the Forest Plan itself, but they have filed numerous administrative complaints as well as several law suits contesting individual timber sales awarded pursuant to the Forest Plan.
A Forest Plan Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.1994). The Forest Plan at bar states that it "will be reviewed (and updated if necessary) at least every five years [and that it] will be revised on a ten-year cycle." Preface of the Forest Plan, at i. To date, it has been amended nine times since its adoption. Moreover, defendants have adopted three policies, the Cliffline Management Policy, the Shelterwood Policy, and the Indiana Bat Management Strategy, but have not amended the same to the Forest Plan.
Pursuant to the NFMA3, the directives of the Forest Plan itself, and apparently due to the outcome of previous litigation before this Court, to-wit, House v. United States Forest Service, Civil Action No. 96-446, published at 974 F.Supp. 1022 (E.D.Ky.1997), the federal defendants are currently in the process of drafting a new Forest Plan for the Daniel Boone Forest to be adopted in late 1998 or early 1999. During the amendment process, the Forest Service has stated that it will not offer or award any new commercial timber sales that utilize any of the management policies being properly amended to the Forest Plan. The federal defendants submit that once the amendment process is complete, the Forest Service will voluntarily enter into consultations with Fish & Wildlife on the entire Forest Plan as amended.
Apparently as a result of the filing of this lawsuit in conjunction with the outcome of previous litigation, the Forest Service reviewed the 37 timber sale projects implemented in the Daniel Boone Forest to determine their status and to assess the adequacy of the site-specific environmental analysis and documentation of the same. The outcome of this endeavor yielded the cancellation of thirteen of the sales because the Forest Service determined that the site-specific environmental analysis or documentation was inadequate in some...
To continue reading
Request your trial
-
Am. Forest Res. Council v. Ashe
...n. 6 (plaintiff suing under ESA citizen suit provision was not required to go through “administrative adjudication process”); Ky. Heartwood, 20 F.Supp.2d at 1091 (stating that “exhaustion of administrative remedies is not a mandatory precondition to filing suit for a violation of the ESA” (......
-
Am. Forest Res. Council v. Ashe
...n.6 (plaintiff suing under ESA citizen suit provision was not required to go through "administrative adjudication process"); Ky. Heartwood, 20 F. Supp. 2d at 1091 (stating that "exhaustion of administrative remedies is not a mandatory precondition to filing suit for a violation of the ESA" ......
-
Sierra Club v. U.S. E.P.A.
...a biological assessment is required. Id. See also, Natural Resources Defense Council, 146 F.3d at 1126; Kentucky Heartwood, Inc. v. Worthington, 20 F.Supp.2d 1076, 1084 (E.D.Ky.1998); Florida Key Deer v. Stickney, 864 F.Supp. 1222, 1228 (S.D.Fla.1994). The only exception to this stringent r......
-
Citizens' Committee v. U.S. Forest Service
...the record, we find that items 1, 2, and 4 were expressly raised in the administrative appeal. See Kentucky Heartwood, Inc. v. Worthington, 20 F.Supp.2d 1076, 1091 (E.D.Ky.1998). Arguably, SOC did not raise expressly the "automatically trigger" claim, but it did raise the larger "connected ......
-
ADMINISTRATIVE REVIEW OF U.S.D.A. FOREST SERVICE DECISIONS
...administrative appeal on supplement to timber sale environmental assessment) District Court Kentucky Heartwood, Inc. v. Worthington, 20 F.Supp2d 1076, 1092 (E.D. Ky.1998) (requirement to exhaust administrative remedies (36 CFR 217.18) no bar to litigate plaintiffs' failure to amend forest p......
-
ADMINISTRATIVE REVIEW OF U.S.D.A. FOREST SERVICE DECISIONS
...administrative appeal on supplement to timber sale environmental assessment) District Court Kentucky Heartwood, Inc. v. Worthington, 20 F.Supp2d 1076, 1092 (E.D. Ky.1998) (requirement to exhaust administrative remedies (36 CFR 217.18 ) no bar to litigate plaintiffs' failure to amend forest ......
-
The national grassland and disappearing biodiversity: can the prairie dog save us from an ecological desert?
...ripe for review even though it threw out the NFMA claim under the new Ohio Forestry test. See Kentucky Heartwood, Inc. v. Worthington, 20 F. Supp. 2d 1076, 1090 (E.D. Ky. 1998). Hopefully, other districts will adopt this approach to the NFMA/NEPA (87) Kathie Durbin, High Noon in the Nationa......