National Audubon Soc. v. Hoffman
| Decision Date | 22 December 1997 |
| Docket Number | Nos. 825,1415,D,s. 825 |
| Citation | 1997 WL 781810,132 F.3d 7 |
| Parties | , 28 Envtl. L. Rep. 20,318 NATIONAL AUDUBON SOCIETY, Sierra Club, The Wilderness Society, Conservation Law Foundation, Inc., Vermont Audubon Council, Restore: The North Woods, Preserve Appalachian Wilderness, Green Mountain Forest Watch, James Northup, Ellen Kingsbury Viereck, Tyler Resch, Mathew Jacobson, Plaintiffs-Appellees-Cross-Appellants, v. Terry W. HOFFMAN, former Forest Supervisor of the Green Mountain National Forest, James Bartelme, Forest Supervisor of the Green Mountain National Forest, Michael Schrotz, Manchester District Ranger, Floyd "Butch" Marita, Regional Forester, in their official capacities as employees of the U.S.D.A. Forest Service, Defendants-Appellants-Cross-Appellees. ockets 96-6037, 96-6049. |
| Court | U.S. Court of Appeals — Second Circuit |
Helen M. Toor, Chief, United States Attorney's Office, Civil Division, Burlington, VT (Charles R. Tetzlaff, United States Attorney for the District of Vermont, Burlington, VT, of counsel), for Defendants-Appellants-Cross-Appellees.
Stephen L. Saltonstall, Bennington, VT (Witten, Saltonstall, Woolmington, Bongartz & Campbell, P.C., Bennington, VT; Lewis M. Milford, Franklin Fraley, Conservation Law Foundation, Inc., Montpelier, VT, of counsel), for Plaintiffs-Appellees-Cross-Appellants.
Patrick Parenteau, Environmental Law Center, Vermont Law School, South Royalton, VT, filed a brief for Amicus Curiae Association of Forest Service Employees for Environmental Ethics.
Before: WINTER, Chief Judge, CARDAMONE and CABRANES, Circuit Judges.
This appeal flows from the National Forest Service's decision to implement a logging project in Vermont's Green Mountain National Forest. The questions before us are, first, whether the Forest Service's decision to implement this proposed action has met the procedural requirements of the National Environmental Policy Act (NEPA), and, second, whether this proposed action is consistent with the Green Mountain National Forest Land and Resource Management Plan, as required by the National Forest Management Act (National Forest Act).
Congress has charged the United States Forest Service with the responsibility of managing our national forests. The Forest Service's decisionmaking process is governed by NEPA, which requires certain procedures to ensure that the agency fully considers the environmental consequences of its decisions prior to their implementation. The federal judiciary's responsibility to review an agency's decisions generally does not extend to finding facts and drawing conclusions that would infringe on the authority Congress delegated to the agency to make independent decisions in its area of expertise. Instead, for a court in an environmental case, the expression "Let's look at the record" means that judicial attention is focused on the agency's compliance with NEPA's procedure-forcing steps in an effort to ensure that environmental concerns are fully considered. Such consideration, it is hoped, will prevent needless damage to our natural resources and promote "enjoyable harmony" between humans and their environment.
Plaintiffs, a coalition of conservation organizations and environmentalists (collectively plaintiffs), brought suit under NEPA, 42 U.S.C. §§ 4321-4347, and the National Forest Act, 16 U.S.C. §§ 1600-1614, against defendants Terry Hoffman, James Bartelme, Michael Schrotz and Floyd Marita in their official capacities as employees of the United States Forest Service, an agency in the U.S. Department of Agriculture (collectively defendants or the Forest Service). The subject of this appeal is the Forest Service's decision approving a plan to build a road and conduct logging operations in a portion of the Green Mountain National Forest known as the Lamb Brook area (Lamb Brook).
The Green Mountain National Forest Land and Resource Management Plan (Forest Plan) was issued in 1987 and set forth a variety of specific management goals for general areas within this national forest. Lamb Brook is a 5,561 acre area located in Bennington and Windham Counties, Vermont. By designating Lamb Brook as Management Areas 3.1 and 2.1A, the Forest Plan contemplated intensive land management, timber harvesting, and recreational uses there. The Management Area 3.1 designation, which covers more than 80 percent of Lamb Brook, or over 4,000 acres, is intended to achieve "a mosaic of vegetative conditions" ranging from large trees to grasses and shrubs by even-aged timber cutting. Another 17 percent of Lamb Brook, designated as Management Area 2.1A, will be managed by uneven-aged cutting in order to maintain a continuous forest cover of trees varying in size and age.
To implement the Forest Plan in Lamb Brook, the Forest Service developed a proposed action plan. It then collected public comments on the proposed plan during a May 1991 meeting in Readsboro, Vermont (a town within Lamb Brook), and through responses to an April 1992 mailing. In January 1993 the Forest Service issued an environmental assessment (EA) which set forth its proposed action, as well as alternatives to that action, to achieve particular goals for Lamb Brook. The proposed action's stated aims included the improvement of vegetative diversity (mix of tree species, ages, and sizes); the protection of the Old Stage Road, a historic cultural resource; the maintenance of recreational opportunities; and the management of access to the area in order to protect resources and wildlife, and to control vandalism.
A month after issuing its EA, on February 9, 1993, the Forest Service handed down its The Forest Service's course of action pursuant to Alternative E includes implementation of a timber management program that allows a combination of shelterwood cuts and clear cuts, as well as individual tree and group selection cuts. The record explains that shelterwood cuts are a series of two or three cuttings which open the stand and stimulate natural reproduction, while clear cuts remove all trees from a designated area at one time, for the purpose of creating a new, even-aged stand. Individual tree selection involves removal of trees individually in a scattered pattern, from an area, and group selection cuts remove small groups of trees. Alternative E further contemplates recreational opportunities in the area by creating four scenic vistas (each 1/4 to 1/2 mile in size), relocating and extending a snowmobile trail, and enlarging an existing parking lot in the area. Finally, the Forest Service's action envisions improvement of two existing one-lane forest roads--FR 266 and FR 269--and the construction of a low standard, graveled road suitable for intermittent use extending FR 266 by 1.3 miles. The purpose of the extension is to provide access for logging trucks in the winter--the extension will be closed to all other traffic.
decision note choosing Alternative E as the course of action to implement the Forest Plan at Lamb Brook. The decision note included a "finding of no significant impact," a determination that Alternative E's implementation would not seriously affect the environment in Lamb Brook, thus absolving the Forest Service of the responsibility under NEPA to prepare an environmental impact statement (EIS).
To mitigate the project's potential negative impact on black bears, into whose habitat the proposed road extension reaches, the Forest Service stated that it would limit construction of the road extension to a period of time between June 15 and September 1 (to avoid the bears' critical autumn feeding season) and avoid cutting beech trees showing evidence of recent bear use, i.e., bear claw marks (Mitigation Measures J and L, respectively). To prevent the unauthorized use of the extension by all-terrain vehicles (ATVs) and the resulting human disruption of the bears, it proposed Mitigation Measure K: construction of a "berm," or mound of dirt, at the end of the existing FR 266 to give the appearance that the road ends at that point.
On June 9, 1994 plaintiffs filed the instant suit against the Forest Service in the United States District Court for the District of Vermont. They alleged that the Forest Service violated NEPA by failing to take into account the significant and deleterious effects Alternative E's implementation will have on Lamb Brook's black bear and neotropical migratory bird populations, as well as the value of the area in its present state. Specifically, plaintiffs maintained that the bears' reproductive capacities in Lamb Brook--designated by Vermont as a critical bear habitat--would be harmed by the loss of beech trees in the area, by increased human interference resulting from the logging activity, and from the ATVs' recreational use of the FR 266 extension. In addition, plaintiffs pointed out that the openings in the forest cover created by logging efforts would endanger the neotropical bird population by making it vulnerable to predators inhabiting the boundaries of forest clearings in what is called an "edge effect." The edge effect results because excessive logging and road-building enable "edge" animals to penetrate the forest and prey on those birds that inhabit the interior. Plaintiffs also claimed that defendants' proposed action is inconsistent with the Forest Plan and therefore violated the National Forest Act, which requires consistency between a forest plan and site-specific projects tied to the plan.
To support their allegations, plaintiffs made a motion to supplement the administrative record with several affidavits and declarations. Denying plaintiffs' motion in part and deferring decision on the balance, District Court Judge Billings, before whom this case was then pending, ordered defendants to submit additional affidavits and legal memoranda detailing "the reasons for and effectiveness of the proposed mitigation measures with regard to bear habitat" and its "conclusions...
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