Krichbaum v. Kelley

• Decision Date: 09 February 1994
• Docket Number: Civ. A. No. 93-103-H.
• Parties: Steven KRICHBAUM, Plaintiff, v. George Wayne KELLEY, in his official capacity as Forest Supervisor of the George Washington National Forest, and United States Forest Service, and Deeds Brothers, Inc., Defendants.
• Court: U.S. District Court — Western District of Virginia

844 F. Supp. 1107

Steven KRICHBAUM, Plaintiff, v. George Wayne KELLEY, in his official capacity as Forest Supervisor of the George Washington National Forest, and United States Forest Service, and Deeds Brothers, Inc., Defendants.

Civ. A. No. 93-103-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

February 9, 1994.

COPYRIGHT MATERIAL OMITTED

Shay Clanton, pro se.

Kim Clanton, pro se.

Steven Krichbaum, pro se.

Michael McHale Collins, Collins & Mooney, Covington, VA, for Deeds Bros, Inc.

Richard A. Lloret, U.S. Attys. Office, Roanoke, VA, John Ebersole, Office of Gen. Counsel, Dept. of Agriculture, Atlanta, GA, for George Wayne Kelley and U.S. Forest Service.

OPINION

MICHAEL, District Judge.

This matter is before the court on plaintiff's motion for a preliminary injunction, and upon the federal defendants' motion for summary judgment. Other motions will be resolved by separate order. For the reasons that follow, the court finds that summary judgment in favor of the defendants is appropriate, and therefore will deny plaintiff's motion for a preliminary injunction as moot.

I.

Plaintiff Steven Krichbaum, pro se, commenced this action on December 14, 1993,¹ seeking judicial review of actions undertaken by the United States Forest Service and George W. Kelley, Forest Supervisor for the George Washington National Forest. The action, which was brought pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq. (1977 & supp.1992),² challenges Supervisor Kelley's October 28, 1992 decision to implement the Marble Valley Timber Sale. Administrative Record, Tab 89.³ That sale provides for an "even-age" timber cutting⁴ in a 114-acre portion of the Deerfield Ranger District of the George Washington National Forest.⁵ Plaintiff's complaint asserts that the planned sale is in violation of the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. (1977 & supp.1993), and the National Forest Management Act, 16 U.S.C. §§ 1600, et seq. (1985 & supp.1993).

The court issued a temporary restraining order against the sale on December 15, 1993. Thereafter, the court scheduled a hearing on plaintiff's motion for preliminary injunction on February 1, 1994. Both parties consented to a period of continuance longer than ten days. Fed.R.Civ.P. 65(b). At the February 1 hearing, the court also heard arguments upon the federal defendants' motion for summary judgment. As indicated, the court finds that the motion for summary judgment is proper and dispositive of all other matters in the case.

II.

Summary judgment is appropriate when there are no genuine issues of material fact which could support a finding for the non-moving party, such that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the court, as here, reviews the decision reached by an administrative agency, the summary judgment motion stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court's review. Though the court has taken testimony to clarify plaintiff's assertions, and to elicit from the defendants those portions of the administrative record which are thought to respond to those assertions, the factual record in this case has not been augmented in any way.⁶ To survive summary judgment, then, plaintiff must point to facts in the administrative record — or to factual failings in that record — which can support his claims under the governing legal standard.

But because the factual record in this case is closed, there would be no point to any further proceedings even if plaintiff were to survive summary judgment and prevail on his motion for a preliminary injunction. Thus, in this posture, plaintiff's burden on summary judgment is not materially different from his ultimate burden on the merits. For these reasons, the trial on the merits will be advanced and consolidated with the hearing on the motion for a preliminary injunction. See Fed.R.Civ.P. 65(a)(2); Cronin v. United States Department of Agriculture, 919 F.2d 439, 444-45 (7th Cir.1990).

In essence, the court treats plaintiff as if he had moved for a permanent injunction upon a closed evidentiary record, even though technically the court is adjudicating defendants' motion for summary judgment. Each motion directs the court's attention to the question whether the agency's actions, as conclusively established in the record, comply with the law. The governing legal standard is a heavy one from plaintiff's perspective: agency determinations are not to be disturbed unless they are "arbitrary and capricious."⁷ That standard, set forth in the Administrative Procedure Act ("APA"), is not altered by the more substantive statutes which underlie the APA claim.

The first of these "substantive" statutes, and the basis for a number of plaintiff's claims, is the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq., which might more accurately be described as prescribing procedural prerequisites to agency action. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). Specifically, a federal agency must prepare an environmental impact statement for a major federal action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In order to determine whether an environmental impact statement must be prepared, the agency may first prepare an "environmental assessment," 40 C.F.R. §§ 1501.3, 1508.9 (1992), which one court has aptly described as a "rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement ... is necessary." Cronin, 919 F.2d at 443.⁸ If the agency decides that an environmental impact statement is not required because the proposed action will have no significant impact, it reports that decision formally in a finding of no significant impact, or "FONSI." 40 C.F.R. § 1508.13. The Supervisor made such a finding in this case on October 28, 1992, along with a Decision Notice approving the Marble Valley Timber Sale, and it is this finding that plaintiff contests.

The decision not to prepare an environmental impact statement pursuant to NEPA is subject to the same "arbitrary and capricious" standard which applies in APA actions. State of North Carolina v. Federal Aviation Administration, 957 F.2d 1125, 1128 (4th Cir.1992) (citations omitted). In order to apply this standard, the court must determine whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-824, 28 L.Ed.2d 136 (1971)). In the NEPA context, the court is called upon to evaluate whether the agency has taken a "hard look" at the environmental consequences and to determine whether its conclusion was based upon a good faith judgment, informed by the relevant factors. State of North Carolina v. Hudson, 665 F.Supp. 428, 437 (E.D.N.C.1987), aff'd 940 F.2d 58 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1991).

The second substantive basis for plaintiff's APA claims is the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600, et seq., which guides the Forest Service in its management of federal lands. NEPA regulations are made applicable to NFMA in 16 U.S.C. § 1604(g)(1). Plaintiff argues that the logging project is inconsistent with the Revised Forest Plan issued in January 1993, Administrative Record, Tab 12, and, more fundamentally, with the statute's command that forest planning must provide for diversity of plant and animal communities consistent with multiple use management objectives. 16 U.S.C. § 1604(g)(3)(B).⁹ Though the statute does restrain agency forest planning to some extent, the statutory command to "provide for diversity"¹⁰ is a qualified one, and has required courts to defer substantially to the Forest Service's judgment and technical expertise. See Sierra Club v. Robertson, 810 F.Supp. 1021, 1027-28 (W.D.Ark. 1992). Thus, plaintiff's NFMA claims are properly evaluated using the APA's arbitrary and capricious standard, bearing in mind whatever substantive commands can be culled from NFMA and its implementing regulations.

Before proceeding further, it is important to clarify the place of the Forest Plan in the court's review. Under NFMA, 16 U.S.C. § 1604, the Forest Service is required to formulate a comprehensive planning document for each land area under its management. The Plan that governed at the time this project was conceived was released in 1986, supported by an environmental impact statement. Administrative Record, Tabs 1, 2. The supporting documentation for the Marble Valley Timber Sale is "tiered" to the Plan documents; that is, the sale documents incorporate by reference the analysis and management direction specified in the Plan and its environmental impact statement. See 40 C.F.R. § 1508.29.

The 1986 Plan has undergone revisions resulting in a new Plan, issued in 1993. The Forest Service has certified that the timber sale is in compliance with this Plan as well. Administrative Record, Tab 116. Mr. Krichbaum has appealed this revised version, and argues that implementation of the timber sale before there has been a decision on the Revised Plan would be unjust. The court declines to enjoin planned agency actions simply because their justification may now be reflected in a Plan that is under administrative appeal. An injunction might be in order if the court found that the agency was acting in bad faith by delaying action on the appeal, but that situation does not obtain here.

More importantly, the court finds that the Revised Plan...