Mahler v. US Forest Service, NA 95-0008-C H/H.

• Citation: 927 F. Supp. 1559
• Decision Date: 07 June 1996
• Docket Number: No. NA 95-0008-C H/H.,NA 95-0008-C H/H.
• Parties: Andy MAHLER, Plaintiff, v. UNITED STATES FOREST SERVICE; James E. Denoncour, District Ranger, Tell City District, Hoosier National Forest; Floyd Marita, Regional Forester, Eastern Region; Jack Ward Thomas, Chief, Defendants.
• Court: U.S. District Court — Southern District of Indiana

927 F. Supp. 1559

Andy MAHLER, Plaintiff, v. UNITED STATES FOREST SERVICE; James E. Denoncour, District Ranger, Tell City District, Hoosier National Forest; Floyd Marita, Regional Forester, Eastern Region; Jack Ward Thomas, Chief, Defendants.

No. NA 95-0008-C H/H.

United States District Court, S.D. Indiana, New Albany Division.

May 7, 1996.

Order Denying Motion to Alter or Amend June 7, 1996.

COPYRIGHT MATERIAL OMITTED

Andy Mahler, Paoli, Indiana, pro se.

Sue Hendricks Bailey, Office of United States Attorney, Indianapolis, Indiana, for defendants.

MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT

HAMILTON, District Judge.

The principal focus of this case is fifty acres of diseased and dying red pine trees in the Hoosier National Forest. The United States Forest Service has decided to "clearcut" forty-six acres, to "shelterwood" cut another four acres, and to dispose of the timber in a salvage sale. Plaintiff Andy Mahler is a nearby resident and frequent visitor to the Hoosier National Forest. He seeks an injunction to stop the salvage operation, arguing that the Forest Service has violated the National Forest Management Act of 1976 ("NFMA"), 16 U.S.C. § 1600 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq. The Forest Service has lodged the relevant administrative records with the court and the parties have filed cross-motions for summary judgment. After review of the administrative record, the court finds that the defendants are entitled to summary judgment on all of Mahler's claims.

The Challenged Decisions

Mahler's complaint seeks judicial review of two separate decisions. The first was the April 8, 1991, amendment to the Hoosier National Forest Land and Resource Management Plan ("1991 Plan Amendment"). The Land and Resource Management Plan, as amended in 1991, is a long-range strategic planning document that the Forest Service uses to guide all natural resource management activities for the Hoosier National Forest. See 36 C.F.R. § 219.4 (planning levels for Forest Service planning process); see generally Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.1994) (explaining role of forest plan). The 1991 Plan Amendment was adopted after review of a number of alternative management strategies. The amendment process provided for extensive public comment and included preparation of a full Environmental Impact Statement under NEPA. One major result of the 1991 Plan Amendment was to reduce by more than 40 percent the total scale of permitted timber harvest and sales within the Hoosier National Forest.¹

The 1991 Plan Amendment established both forest-wide strategies and then more specific forest management strategies for ten regions within the Hoosier National Forest called "Management Areas." In his complaint for judicial review, Mahler challenges the management prescription for Management Area 2.8, an area of more than 97,000 acres that includes the fifty acre stand of diseased red pine trees subject to the planned salvage operation. The 1991 Plan Amendment management prescription for Management Area 2.8 states, among other things, that forests in the area are suitable for timber production. Mahler contends that the management prescription for Management Area 2.8 was adopted without giving prior consideration to "potential effects on residual trees and adjacent stands" as required by 36 C.F.R. § 219.27(b)(4), and without assurance that it would "provide the desired effects on water quantity and quality, wildlife and fish habitat, regeneration of desired tree species, forage production, recreation uses, aesthetic values, and other resource yields," as required by 36 C.F.R. § 219.27(b)(6). Mahler filed a timely administrative appeal and exhausted his administrative remedies before seeking judicial review of the 1991 Plan Amendment in this action.

Second, Mahler challenges on many grounds the Forest Service's decision of June 10, 1994, authorizing the salvage sale of the fifty acres of pine trees specifically at issue here. The Red Pine Salvage Sale Decision Memo ("Decision Memo") authorized clear-cutting of forty-six acres of red pine trees and shelterwood cutting of the other four acres.² The salvage project would produce a total volume of between 800,000 and 1,000,000 board feet of timber. Mahler filed an administrative appeal of the Decision Memo pursuant to 36 C.F.R. § 215. Under the applicable administrative appeal procedures, an "appeal reviewing officer" reviews the challenged decision and the appeal. See 36 C.F.R. §§ 215.17-215.19. The appeal reviewing officer then makes a recommendation to the "appeal deciding officer." In this case the appeal reviewing officer supported the underlying salvage decision but recommended remand for the limited purpose of building the record on mortality, opening and leave areas, and the use of a categorical exclusion under NEPA. The Regional Forester was the "appeal deciding officer" for this decision. He reviewed the original decision and the appeal reviewing officer's recommendation. He affirmed the Decision Memo's salvage plan and characterized the appeal reviewing officer's concerns as showing a desire for more information rather than a flaw in the decision under appeal. The appeal deciding officer found "the record contained adequate information which supported the decision." Administrative Record Document 11 at 1. After exhausting his administrative remedies, Mahler now seeks judicial review of the salvage decision.

Standard of Review

This case comes before the court on the parties' cross motions for summary judgment. Where the court's task is to review an administrative record and apply legal standards to that record, summary judgment is an appropriate vehicle for deciding the case. See Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir.1994). The Administrative Procedure Act, 5 U.S.C. § 701 et seq., sets forth the applicable scope of review for administrative decisions. Mahler relies on provisions requiring the reviewing court to:

hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

* * * * * *

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

5 U.S.C. § 706(2)(A), (C). This standard requires the court to evaluate whether the decisions were based on a consideration of the relevant factors and whether there has been a clear error of judgment by the administrative body. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). The court should make a searching and careful inquiry into the facts, but the court is not empowered to substitute its judgment for that of the agency. Id. On judicial review, district courts must give due deference to an agency's interpretations of its own regulations. See, e.g., National Trust for Historic Preservation v. Dole, 828 F.2d 776, 782 (D.C.Cir.1987).

The Seventh Circuit has applied the arbitrary and capricious standard when reviewing an agency's decision not to prepare an environmental impact statement. State of Wisconsin v. Weinberger, 745 F.2d 412, 417 (7th Cir.1984); River Road Alliance, Inc. v. Corps of Eng'rs of U.S. Army, 764 F.2d 445, 449 (7th Cir.1985). Decisions will be upheld under the arbitrary and capricious standard if they have been based on a consideration of the relevant factors and made on a rational basis. Weinberger, 745 F.2d at 417 (citations omitted). Based on the Weinberger and River Road Alliance decisions, this court will apply the arbitrary and capricious standard to defendants' decision to rely on a categorical exclusion under NEPA without undertaking a more elaborate environmental assessment of the planned red pine salvage operation.

The Merits

I. The 1991 Land and Resource Management Plan Amendment

Mahler argues that the Forest Service's 1991 Plan Amendment violates the National Forest Management Act's requirements concerning cutting methods for timber harvesting. The NFMA requires the Forest Service to adopt regulations specifying the guidelines for land management plans to:

insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an evenaged stand of timber will be used as a cutting method on National Forest System lands only where —

(i) for clearcutting, it is determined to be the optimum method, and for other such cuts it is determined to be appropriate, to meet the objectives and requirements of the relevant land management plan.

16 U.S.C. § 1604(g)(3)(F). The 1991 Plan Amendment shows that the Forest Service complied with this requirement as applied to the land management plan process.

First, the Plan Amendment contains in Appendix B an extensive discussion of the rationale for deciding when the clearcut method of vegetative management would be optimal:

In clearcutting, with the exception of trees that may be left for wildlife or visual purposes, all merchantable trees on an area are harvested at one time. Unmerchantable trees are also felled to eliminate competition with the regeneration. Regeneration develops from natural seeding prior to harvests or sprouting from cut tree stumps. This regeneration method favors the establishment and development of species more intolerant of shade which are generally more desirable commercially. Clearcutting is the method that can slow the change from oak-hickory to the more mesic mixed hardwoods that is presently occurring on the Forest because of natural forces.

Clearcutting provides vegetation in an early successional stage. In an unmanaged situation this successional stage could be caused by wildfire, insects, diseases, or windthrow. Without manmade or natural disturbances, the forest tends to move toward a condition dominated by shade-tolerant, late successional

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