Krichbaum v. U.S. Forest Service

• Decision Date: 27 August 1998
• Docket Number: No. CIV. A. 97-0027-H.,CIV. A. 97-0027-H.
• Citation: 17 F.Supp.2d 549
• Court: U.S. District Court — Western District of Virginia
• Parties: Steven KRICHBAUM, Plaintiff, v. U.S. FOREST SERVICE, and Steve Parsons, Defendants.

17 F.Supp.2d 549

Steven KRICHBAUM, Plaintiff, v. U.S. FOREST SERVICE, and Steve Parsons, Defendants.

No. CIV. A. 97-0027-H.

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

August 27, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Steven Krichbaum, Staunton, VA, pro se.

Alonzo H. Long, U.S. Attorney's Office, Roanoke, for United States Forest Service, Steve Parsons, District Ranger, defendants.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

This matter comes before the court on the parties' cross-motions for summary judgment. Plaintiff Steven Krichbaum seeks judicial review of the decision of the defendant Forest Service and the defendant District Ranger Steve Parsons to conduct the Alba Salvage Timber Sale ("Alba Sale") in an area of the George Washington National Forest ("Forest") in Augusta County, Virginia.

Krichbaum alleges that the defendants approved the Alba Sale without following the procedural requirements of the National Environmental Policy Act ("NEPA") and in violation of the Forest's Final Revised Land and Resource Management Plan ("Revised Plan"). The parties have briefed and argued the issue in relation to their cross-motions for summary judgment. On April 10, 1998, the Magistrate Judge issued his findings and recommended disposition of the case pursuant to 28 U.S.C. § 636(b)(1)(B). In determining whether to adopt the Magistrate Judge's report and recommendation, this court reviews the case de novo.¹

I.

The court first turns to the factual and procedural background of the case.² Mr. Krichbaum seeks judicial review, under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701 et seq., of an administrative decision by the defendants, the United States Forest Service ("Forest Service") and Steve Parsons, District Ranger, who approved the Alba Sale. Krichbaum alleges that the defendants' decision to permit the salvage sale in the George Washington National Forest: (1) violated Forest Service regulations promulgated under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; and (2) conflicts with the Forest's Final Revised Land and Resource Management Plan ("Revised Plan"), which was prepared under the guidelines set forth in the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq.

More specifically, Krichbaum alleges that the defendants:

a. improperly applied a categorical exclusion ("CE") allowing them to avoid doing an Environmental Assessment ("EA") of the salvage site area where timber harvests remove 1 million board feet or less of timber for salvage purposes, or 250,000 board feet for non-salvage sales, because the Alba Sale would remove too much undamaged timber;

b. improperly applied a CE by ignoring the presence of a municipal watershed in violation of the Forest Service's regulations under NEPA;

c. approved the Alba Sale in violation of the Revised Plan because the proposed salvage sale will not meet the visual quality objective ("VQO") under the Revised Plan;

d. approved the Alba Sale in violation of the Revised Plan by proposing a salvage sale that is in reality an "even-aged" timber cut, rather than an uneven-aged one;

e. failed to survey adequately the area for threatened, endangered, and sensitive ("TES") animal and plant species;

f. failed to classify properly the salvage area as being suitable for timber production; and

g. failed to assess adequately whether the proposed sale would significantly affect riparian areas.

See Complaint at ¶¶ 15-27.

In 1995 the Alba Sale area was defoliated by gypsy moths. Pursuant to the Revised Plan, the defendants assessed the area to see how best to prevent tree mortality and suppress the gypsy moth population. In July 1996, a Forest Service silviculturist surveyed the area where this occurred, known as Stand 4,³ and found that: fifty percent (50%) of the white oak were dead and most of the remaining white oak were damaged; most of the scarlet oak had heart rot and were overmature, with ten percent to fifteen percent (10% — 15%) of those trees dead and many more expected to die within two years; ten percent (10%) of the chestnut oak were dead; and the white pines in the area were unaffected. Administrative Record ("AR") Tabs 23, 24, and 26.

On August 5, 1996, the District Ranger proposed a salvage sale for the twenty (20) acres most affected by the defoliation. AR Tab 24. A notice of the proposed sale was sent to various State agencies, organizations, and persons (including Mr. Krichbaum). AR Tab 25. On August 9, 1996, a Forest Service landscape architect also inspected Stand 4, and determined that a careful harvest of trees would improve the scenic beauty of the damaged area and would meet the Forest's long-term visual quality goals. On September 3, 1996, public comments regarding the proposed sale were solicited, including those from plaintiff. AR Tabs 31, 32, 33.

On September 24, 1996, a Forest Service zone hydrologist determined that, although the proposed sale is located in the North River watershed, it would not have a significant impact on the water quality, water yield, soil productivity, other uses of the North River or other area streams or lakes. The hydrologist also found that the Alba Sale area was outside the flood plains, wetlands, and other riparian areas, and that the soils and "slope class" for the area were similar to areas where two earlier timber sales had had no significant effects on water quality, yield, or soil productivity. AR Tabs 35, 21.

A biological evaluation performed on October 4, 1996 concluded with a finding of no occurrence of threatened, endangered, or sensitive ("TES") species in the project area. In preparing the evaluation, a wildlife biologist reviewed lists of TES species known to occur in the Forest and their preferred habitats; consulted data on TES species maintained by the Virginia Division of Natural Heritage ("VDNH"); and conducted his own field survey. The biologist recommended that if certain guidelines were applied to the Alba Sale, there would be no effect on any Federally listed species nor on the future viability of any TES species. AR Tab 36.

Under statutory and regulatory procedures, the Forest Service normally must conduct an Environmental Assessment ("EA") to determine whether a proposed project will have significant environmental effects. If, after conducting an EA, the Forest Service makes a "finding of no significant impact" ("FONSI"), then a more detailed Environmental Impact Statement ("EIS") is not necessary. 40 C.F.R. § 1501.4(e). Under NEPA, if the Forest Service determines based on the EA that the action would have a significant environmental impact, the Forest Service must complete an environmental impact statement ("EIS") to determine further the environmental impact of the action. 42 U.S.C. § 4223(2)(C).

NEPA, however, also allows agencies to adopt "categorical exclusions" ("CE")⁴ that exempt projects from the EA and EIS requirements. If a proposed action fits within a CE, neither an EIS nor EA is needed. 40 C.F.R. § 1508.4. If an "extraordinary circumstance" exists,⁵ then a proposed project cannot be placed in a CE and an EA is required. See Forestry Service Handbook ("FSH") 1909.15, § 30.3.

Under Forest Service regulations, FSH 1909.15, §§ 31.1(b) or 31.2, a project qualifies for a CE if it involves: (1) timber harvests removing not more than 250,000 board feet of merchantable wood; or (2) salvage logging removing not more than 1,000,000 board feet of merchantable wood. Under this second, 1,000,000 board feet exception, the Forest Service concluded that the Salvage Project constituted a CE, and so did not perform an EA or an EIS. All parties agree that the Alba Sale will remove only 200,000 board feet of merchantable wood products. The Forest Service contends, therefore, that the Project qualifies under both the 250,000 board feet exemption for non-salvage sales and the 1,000,000 exemption for salvage sales.

On October 17, 1996, the District Ranger decided to implement the Alba Sale. The District Ranger determined that the Sale would result in several benefits: (1) rehabilitation of the scenic landscape so the long-term visual quality objective ("VQO") of retention would be met;⁶ (2) moving the area toward an uneven-aged condition; (3) minimizing future damage from gypsy moths; (4) utilization of a resource prior to deterioration. The "no action" alternative was considered by the District Ranger and found not to provide these benefits. AR Tab 37. A copy of his Decision Memorandum was mailed to the plaintiff and a notice of the decision was published in the local newspaper. AR Tabs 39, 40. Mr. Krichbaum took an administrative appeal from the District Ranger's decision. AR Tab 41. On January 11, 1997, the Regional Forester, acting on behalf of the Forest Service, affirmed the District Ranger's decision after carefully considering and responding to plaintiff's comments. See AR Tab 44. The Forest Service awarded the timber harvesting contract, which requires that the guidelines and recommendations of the biologist be applied. The Forest Service silviculturist again surveyed the site in May 1997 to monitor compliance and found that an estimated ninety-four and nine-tenths percent (94.9%) of the sale volume would come from dead or damaged trees.⁷ AR Tabs 47, 48.

Mr. Krichbaum filed his Complaint on April 30, 1997, requesting judicial review of the administrative decision. On December 31, 1997, the defendants filed a "Notice of Intent" with the court stating that logging operations in the Alba Sale project area would commence on or about January 5, 1998. On January 22, 1998, this court denied Mr. Krichbaum's request for injunctive relief to block the logging.

II.

Plaintiff's challenge to the Forest Service's decision under the APA, NEPA, and NFMA can succeed only if the decision is shown to be "arbitrary and capricious," 5 U.S.C. §§ 706(2)(A) and 706(2)(C),⁸ or erroneous under the...