Kentucky Heartwood, Inc. v. US Forest Service

• Decision Date: 27 November 1995
• Docket Number: Civ. A. No. 95-225.
• Citation: 906 F. Supp. 410
• Parties: KENTUCKY HEARTWOOD, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants, and Pettit Wood Products, Inc., Intervenor-Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

906 F. Supp. 410

KENTUCKY HEARTWOOD, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants, and Pettit Wood Products, Inc., Intervenor-Defendant.

Civ. A. No. 95-225.

United States District Court, E.D. Kentucky, Ashland.

November 27, 1995.

Todd E. Leatherman, Reeves & Graddy, Lexington, KY, for Ky Heartwood Inc., Heartwood, Inc., Chris Schimmoeller, Bob House.

Jane E. Graham, U.S. Attorney's Office, Lexington, KY, Kelly E. Mofield, John W. Watts, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for United States Forest Service, Dan Glickman, James D. Manner, United States Fish and Wildlife Service, Bruce Babbitt, Lee Barclay.

Truman L. Dehner, John J. Ellis, Morehead, KY, for Pettit Wood Products, Inc.

HOOD, District Judge.

This matter is before the Court upon a number of pending motions: (1) the motion of the defendant the United States Forest Service, et al., for summary judgment Record No. 14-1; (2) the motion of the defendant the United States Fish & Wildlife Service to dismiss Record No. 14-2; (3) the motion of the plaintiffs Kentucky Heartwood, Inc., Heartwood, Inc., Chris Schimmoeller, and Bob House for summary judgment Record No. 17; and (4) the motion of the intervenor-defendant Pettit Wood Products, Inc. for summary judgment Record No. 31.

Oral argument on these motions was heard by the Court on Friday, November 17, 1995. This matter is, therefore, ripe for decision.

FACTUAL BACKGROUND

In May of 1995 a storm caused heavy and moderate damage to various portions of the Daniel Boone National Forest. After an informal analysis of the local timber market, the United States Forest Service (Forest Service) determined that a sale of this storm damaged timber would be appropriate. Following the decision to move forward with the proposed sale, the Forest Service sent out a "scoping notice" to interested members of the public including the plaintiffs and published such notice in the Morehead News.

In response to the notice, the plaintiffs raised the question of the impact of the proposed sale on the endangered Indiana Bat. On July 12, 1995, the Forest Service prepared a Biological Evaluation (BE) to analyze the project's potential effects on species listed under the Endangered Species Act (ESA), 16 U.S.C. Sections 1531 et seq., as either threatened or endangered species. The BE concluded that the proposed project was not likely to affect any threatened or endangered species.

With respect to the impact on the Indiana Bat in particular, the BE concluded that the project would "optimize the number of potential roosting and maternity trees that are available for use by the Indiana bat following the completion of salvage operations and should protect all actual and potential primary roost trees that are present in the salvage unit." (AR 23:07). The United States Fish & Wildlife Service (Fish & Wildlife) reviewed the BE and concurred in its conclusions.

Pursuant to the National Environmental Response Act, the Forest Service prepared an Environmental Assessment (EA) which examined the potential impact of the sale on soils, water resources, vegetation, wildlife, recreation, visual quality and cultural resources and human health. The EA was published on July 23, 1995, and public comment was solicited. At the same time, the Forest Service indicated that the sale would be handled as an emergency sale pursuant to 36 CFR § 215.10.

Upon learning that the Forest Service intended to invoke the emergency procedures under the NEPA, the plaintiffs faxed to all defendants a 60-Day Notice of Intent to file a Citizen's Suit pursuant to the Endangered Species Act. The plaintiffs made clear that they intended to challenge the 1995 Storm Salvage Timber Sale and another proposed sale at the Carrington Branch. The following day, the Fish & Wildlife Service withdrew its concurrence with the Carrington Branch Sale.

On September 12, 1995, the Forest Service announced that the timber sale would not be conducted in accordance with the requirements of NEPA or ESA but rather would proceed under the Salvage Timber rider to the 1995 Rescissions Bill, P.L. 104-19, Section 2001. Timber sales conducted pursuant to the Salvage Timber rider are exempt from these requirements.

On September 26, 1995, the first advertisement for the salvage sale appeared in the newspaper. Within 15 days, the plaintiffs filed this action seeking declaratory and injunctive relief. In their amended complaint they contend that the defendants failed to comply with the 1995 Rescissions Bill and the Administrative Procedure Act, 5 U.S.C. § 702, in authorizing the 1995 Storm Salvage Timber Sale on the Morehead District of the Daniel Boone National Forest. The plaintiffs are particularly concerned with the impact of this sale on the Indiana Bat, an endangered species.

DISCUSSION

A. Whether the Challenged Project involved a Salvage Timber Sale which may be Conducted pursuant to the Salvage Timber rider of the 1995 Rescissions Act

At the outset, it must be determined whether the sale in question may be conducted under the Emergency Salvage Timber Sale Program enacted as the Salvage Timber rider Section 2001 of the 1995 Rescissions Act. This threshold determination is quite significant as the following limitations apply to judicial review of such sales: (1) review is based on the administrative record only; (2) the standard of review is arbitrary and capricious or otherwise not in accordance with applicable law; and (3) the sale is not subject to any federal environmental or natural resources laws.

This last limitation is crucial. As Congress is the one that created all of the federal environmental laws, it is clearly within its power to exempt certain activities from those laws as it has done here. The sale must, however, comply with the documents and procedures called for in the 1995 Rescissions Act.

The plaintiffs maintain that the Forest Service acted erroneously when it changed the status of the sale from a normal salvage sale to a sale under the Salvage Timber rider. The plaintiffs contend that there is some sort of cut off date intended by the timber sale rider. Further, from certain language in the statute which refers to reducing the backlog of salvage sales, the plaintiffs reason that sales may be made under this provision only for timber that was damaged before April 25, 1995, and only where there is some level of backlogged salvage timber not specified in the statute.¹ In short, the plaintiffs contend that Congress did not intend for the rider provision to apply to the instant sale.

As the Forest Service has failed to quantify the backlog in the sale area in the Administrative Record, according to the plaintiffs it is impossible for there to be any proper foundation upon which this sale might proceed under the Salvage Timber rider. Accordingly, the plaintiffs maintain that the instant sale may only proceed as a normal salvage sale.

The Forest Service, on the other hand, disputes such a reading of the Timber Salvage rider. They contend that there is nothing in the definitional section of the provision which even hints at there being some sort of requirement that there be a backlog volume of timber in order for a sale to proceed under the rider. The Forest Service further points out that the plaintiffs' reference to a backlogged volume of timber is traceable to a provision which merely urges the Secretary "to achieve, to the maximum extent feasible, a salvage timber sale volume level above the programmed level to reduce the backlogged volume of salvage timber." Accordingly, the Forest Service maintains that the instant sale falls within the provision.

The intervenor-defendant Pettit Woods Products, Inc. argues that it would be absurd for the provision to apply to certain trees or areas that were damaged on a certain date but not to others that were damaged on a later date. Pettit Woods asks whether it is really the clear intent of the statute to have the applicability of this provision turn on when the damage occurred.

The Court agrees with the Forest Service's reading of the Salvage Timber rider and finds that the instant sale may be conducted in conformance therewith. It is true that the general purpose of the rider may at least in part be to reduce a backlog of salvage timber. However, there is no limitation in the plain language of the statute which would limit salvage sales to those that were part of a backlog existing at the time Congressional committees issued reports in April 1995.² The only time limitations on these sorts of sales relate to (1) the December 31, 1996, expiration of the authority to conduct such a sale³ and (2) the requirement that the sale be advertised, offered and awarded within the emergency period which runs from July 27, 1995 to September 30, 1997.⁴ Both of these time constraints are satisfied in the instant sale.

Most telling is the statutory definition of "salvage timber sale" which contains absolutely no requirement of a specified backlog. This definition reads:

The term "salvage timber sale" means a timber sale for which an important reason for entry includes the removal of disease-or insect-infested trees, dead, damaged or downed trees, or trees affected by fire or imminently susceptible to fire or insect attack. Such term also includes the removal of associated trees or trees lacking the characteristics of a healthy and viable ecosystem for the purpose of ecosystem improvement or rehabilitation, except that any such sale must include an identifiable salvage component of trees described in the first sentence.

Section 2001(a)(3) (emphasis added). The Court declines to add additional requirements which are not clearly called for by the plain language of the statute and, further, are not plausible inferences reflecting the intent of Congress. That the plain meaning of a statute controls a court's interpretation is the rule, not the exception. Kelley...