National Audubon Society v. Hoffman

• Decision Date: 11 January 1996
• Docket Number: Civil No. 1:94CV160.
• Parties: 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, and Mathew Jacobson v. Terry HOFFMAN, Forest Supervisor of the Green Mountain National Forest, James Bartelme, Forest Supervisor of the Green Mountain National Forest, and Floyd "Butch" Marita, Regional Forester, in their official capacities as employees of the U.S.D.A. Forest Service.
• Court: U.S. District Court — District of Vermont

917 F. Supp. 280

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, and Mathew Jacobson v. Terry HOFFMAN, Forest Supervisor of the Green Mountain National Forest, James Bartelme, Forest Supervisor of the Green Mountain National Forest, and Floyd "Butch" Marita, Regional Forester, in their official capacities as employees of the U.S.D.A. Forest Service.

Civil No. 1:94CV160.

United States District Court, D. Vermont.

December 13, 1995.

File Line as Corrected January 11, 1996.

COPYRIGHT MATERIAL OMITTED

Stephen L. Saltonstall, Bennington, VT, for plaintiffs.

Helen M. Toor, Assistant U.S. Attorney, Burlington, VT, for defendants.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

MURTHA, Chief Judge.

The plaintiffs, a coalition of conservation organizations and environmentalists, bring this action against several employees of the United States Forest Service pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-47, and the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-14. The plaintiffs challenge the Forest Service's decision to extend a road and conduct logging operations in an area of the Green Mountain National Forest known as the Lamb Brook Area (hereinafter "Lamb Brook").¹ For the reasons set forth below, each pending Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Each party moving for summary judgment has an initial burden of informing the Court of the basis for its motion and of identifying those parts of the record which it believes demonstrate the absence of a genuine issue of material fact. See Latimer v. Smithkline and French Laboratories, 919 F.2d 301, 303 (5th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Where a motion for summary judgment is supported by affidavits or other documentary evidence, the party opposing that motion must set forth specific facts which show there is a genuine, material issue for trial. See King Service, Inc. v. Gulf Oil Corp., 834 F.2d 290, 295 (2d Cir.1987). Accordingly, for an opposing party to resist entry of summary judgment, it must come forward with enough evidence to support a verdict in its favor. It cannot defeat a properly supported motion merely by presenting metaphysical doubt, conjecture or surmise concerning the facts. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989). Only disputes over facts which might affect the outcome of the suit under the governing law preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Upon review of the submissions of the parties, the Court finds the following facts undisputed. Lamb Brook is a 5,561 acre portion of the Green Mountain National Forest located in Bennington and Windham Counties, Vermont. The project at issue is designed to implement the Green Mount National Forest Land and Resource Management Plan (hereinafter the "Forest Plan") issued pursuant to the NFMA in 1987.

The Forest Plan sets forth a variety of specific management goals and strategies for distinct areas of the Green Mountain National Forest, including Lamb Brook. Under the Forest Plan, Lamb Brook is designated as consisting of two management areas, Management Area 3.1 and 2.1A. Over 80% of Lamb Brook is Management Area 3.1.

The Forest Plan describes Management Area 3.1 as follows:

MANAGEMENT PRESCRIPTION 3.1 emphasizes a MOSAIC OF VEGETATIVE CONDITIONS in a roaded, intensively managed, but natural appearing environment. A careful blend of timber stands of various types and ages will benefit diversity, certain wildlife species, roaded recreational experiences and visual quality. Practicing even-aged silviculture for high quality sawtimber fits well with these objectives and will be used to help achieve them.

Visitors will find abundant opportunities to drive and walk in the forest which will gradually grow back to stands of large trees. Many different wildlife species will benefit from the food and cover which occur as the vegetation changes from grasses to shrubs to saplings to poles and back to large trees. This pattern of vegetative conditions across the landscape will be visually attractive to people visiting the forest.

Forest Plan at 4.102.

In addition, the Plan describes Management Area 2.1A as follows:

MANAGEMENT PRESCRIPTION 2.1A emphasizes CONTINUOUS FOREST COVER and roaded natural recreation opportunities. This prescription provides areas having trees of many ages and sizes, where no large clearings will be created. This management prescription intends to help maintain a balanced mosaic of ecological communities across the forest; to help us learn more about the benefits and costs of uneven-aged management and reduce soil and nutrient loss on sensitive lands, such as riparian areas.

Forest Plan at 4.93.

Accordingly, the Forest Plan contemplates intensive land management, timber harvesting and recreational uses in areas such as Lamb Brook.

In January 1993, the Forest Service issued an Environmental Assessment (hereinafter the "EA") in which it sets forth its proposals for implementing the Forest Plan at Lamb Brook. The EA's enumerated goals include: (1) To stimulate the development of northern hardwood and spruce regeneration; (2) to develop an even-aged stand structure; (3) to improve the growth and quality of residual crop trees; (4) to regenerate aspen and improve area wildlife habitat; (5) to create 36 acres of permanent wildlife openings to provide needed grasses and shrubs for wildlife forage; (6) to improve the abundance and quality of wildlife food and cover; (7) to upgrade Forest Road 266 (hereinafter "FR266") for hauling timber products in winter; (8) to make road improvements necessary to transport timber products; and, (9) to manage FR266 with seasonal closures. See generally EA at 4-6. To realize these goals, the EA sets forth several alternative courses of action, including a "No Action Alternative" and "Alternative E."

On February 9, 1993, the Forest Service issued its Decision Notice (hereinafter "DN") and a Finding of No Significant Impact (hereinafter "FONSI"). The DN reiterates the EA's stated purpose of the Lamb Brook project:

The Forest Plan was approved by the Regional Forester in January 1987. The Lamb Brook Area EA is tiered sic to the Forest Plan Environmental Impact Statement. The Lamb Brook Area projects are an important step in implementing the goals and objectives of the Forest Plan. A comparison between the existing conditions and the Forest Plan's desired future condition shows a need to improve vegetative diversity by moving the area toward a more desirable mix of tree species, ages, and sizes. There is a need to protect the Old Stage Road, a historic cultural resource, and at the same time, maintain recreational opportunities via the corridor snowmobile trail system. There is also a need to manage access in order to protect resources, wildlife, and control vandalism. All actions approved by this decision will move affected lands toward the desired future condition described in the Forest Plan.

See DN-1 to DN-2.

To accomplish this stated purpose, the Forest Service plans to implement Alternative E. Under Alternative E, the Forest Service "will treat 1,239½ acres of National Forest land" and over 300 acres of trees will be "harvested." See DN-2. It is difficult to compute the precise impact of this "harvesting" using the defendants' figures. However, plaintiffs estimate that this Forest Plan actually envisions the cutting of approximately 3.2 million board feet of timber from Lamb Brook. Throughout agency documents, these clearcutting activities are euphemistically referred to as the "standard" or "delayed shelterwood method" of "vegetation" or "even-aged management." See DN-2.

The Forest Service also intends to upgrade and extend by approximately one and onethird miles FR266. The DN describes the extension as a "low standard, graveled intermittent use road." See DN-3. It is the plaintiffs' objection to these proposals which form the basis of the instant dispute.

The plaintiffs allege implementation of Alternative E will have a significant, deleterious impact on Lamb Brook's black bear population. Since the existing portion of FR266 already passes through bear habitat, the plaintiffs fear additional human activity caused by its extension will disrupt the bears feeding and mating habits. They also argue that extension of FR266 will encourage increased use by snowmobiles and illegal use by other all terrain vehicles ("ATV"). See generally Declarations of Mathew Jacobson, Kelly Kahler, and Kenneth D. Butcher (attached as exhibits to paper 51).

The Forest Service has simultaneously admitted and minimized the extent of illegal ATV use of FR266. Compare EA at 39 ("Some unauthorized use of the road and trails by off-highway vehicles is occurring.") with EA at 42 ("Unauthorized use by allterrain vehicles is occurring along FR266 ... and would likely increase in the Proposed Action....") with Declaration of Michael Schrotz (appended to paper 58) at para. 5 ("It is possible that those ATVs or the ATV trails observed in the dirt were authorized vehicles.") However, the Forest Service unequivocally has admitted its activities will disrupt the black bear habitat. See EA at 42, 46.

The EA notes that black bears are sensitive to human disturbance and may be "negatively impacted by increased human presence and loss of remoteness." EA at 42. The Forest Service further admits "any additional road building within a bear sub-unit could potentially...