Northwoods Wilderness Recovery v. U.S. Forest Ser., 01-2508.

• Decision Date: 21 March 2003
• Docket Number: No. 01-2508.,01-2508.
• Citation: 323 F.3d 405
• Parties: NORTHWOODS WILDERNESS RECOVERY, INC., Douglas R. Cornett, and Frank J. Verito, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

323 F.3d 405

NORTHWOODS WILDERNESS RECOVERY, INC., Douglas R. Cornett, and Frank J. Verito, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, et al., Defendants-Appellees.

No. 01-2508.

United States Court of Appeals, Sixth Circuit.

Argued: December 12, 2002.

Decided and Filed: March 21, 2003.

Leigh Ann Haynie (argued and briefed), Carencro, LA, for Plaintiffs-Appellants.

Charles R. Gross (argued), Assistant United States Attorney, Grand Rapids, MI, Glenda G. Gordon (briefed), Assistant United States Attorney, Marquette, MI, for Defendants-Appellees.

Before: MERRITT and DAUGHTREY, Circuit Judges; RUSSELL, District Judge.^*

OPINION

MERRITT, Circuit Judge.

This case concerns a decision by the United States Forest Service to approve the Rolling Thunder timber project in the Ottawa National Forest on Michigan's Upper Peninsula. Plaintiffs Northwoods Wilderness Recovery, Inc., Douglas R. Cornett, and Frank J. Verito argue that the approval of the timber project was in violation of the National Environmental Policy Act, the National Forest Management Act and the Administrative Procedure Act. The basic question before us is whether the Forest Service acted arbitrarily when it approved selection cutting of hardwood timber acreage greatly exceeding the acreage projected in its Forest Plan and its Environmental Impact Statement. On cross motions for summary judgment, the district court ruled in favor of the Forest Service on all counts. Because we conclude that approval of the Rolling Thunder project without adherence to the statutorily-mandated environmental analysis was arbitrary and capricious, we REVERSE the judgment of the district court and REMAND with instructions to enter summary judgment for the plaintiffs.

I. Background

The National Forest Management Act of 1976 mandates that every national forest have a programmatic document called a forest plan to "guide all natural resource management activities," including use of the land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1). The forest plan identifies the resource management practices, the projected levels of production of goods and services, and the location where various types of resource management may occur. Implementation of the forest plan is achieved through individual site-specific projects, and all projects must be consistent with the forest plan. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10. To ensure that forest plans remain in compliance with the Forest Act, the Forest Service must establish a monitoring strategy. See 36 C.F.R. § 219.11. Furthermore, the statute requires the Forest Service to "revise" the plan "when the Secretary finds conditions in a [Forest] have significantly changed." 16 U.S.C. § 1604(f). Forest plans, as well as site-specific proposals, must be prepared in compliance with National Environmental Policy Act, 42 U.S.C. § 4321, and the regulations contemplate the preparation of an appropriate Environmental Impact Statement as directed by the Policy Act as part of an integrated process. 16 U.S.C. § 1604(g)(1); 36 C.F.R. § 219.6(b). Federal regulations permit an agency that is planning a major federal action to conduct a less exhaustive Environmental Assessment to determine whether the proposed action will "significantly affect" the environment and thus whether an Environmental Impact Statement is required. 40 C.F.R. §§ 1501.4(b), 1508.9 (2001). If the Environmental Assessment reveals that the proposed action will significantly affect the environment, the agency must prepare an Environmental Impact Statement. See id. Conversely, if the agency makes a Finding of No Significant Impact, 40 C.F.R. § 1501.4(e), then it is not required to prepare an Environmental Impact Statement.

The Ottawa National Forest is located on Michigan's Upper Peninsula. In 1986, the Forest Service issued its Forest Plan and accompanying Environmental Impact Statement for the Ottawa National Forest. The Plan divides the Forest into sixteen management areas. The Rolling Thunder project, the subject of this litigation, is located within Area 2.1. The Plan states that the desired future condition of the land in Area 2.1 is a continuous canopy of northern hardwoods with occasional permanent upland openings, and the Plan contemplates logging in Area 2.1 with an emphasis on "uneven-aged management."¹ The Plan envisions an average annual harvest within Area 2.1 of 1,440 acres by clear-cutting and 2,800 acres by selection cutting. Selection cutting involves removing individual trees in a scattered pattern from a large area, while maintaining the forest's canopy. Selection cutting fosters a forest of trees that differ markedly in age and/or size. By contrast, clear-cutting involves removing all commercial-sized trees from an area in one harvest.

On December 8, 1997, the Forest Service issued a Scoping Letter wherein it proposed the Rolling Thunder timber sale. The letter proposed additional clear-cutting on 176 acres of aspen stands and selection cutting on 1,391 acres of mixed northern hardwoods in Area 2.1.

The Forest Service then undertook an Environmental Assessment that evaluated the effects of the proposed alternatives on numerous resources. In May, 1998, the Forest Service issued the draft Environmental Assessment to the public for comment. Plaintiffs objected to the proposed project because the selection cutting within Area 2.1 already averaged more than 4,800 acres annually while the Plan envisioned only 2,800 acres. After considering and responding to the public comments, District Ranger Jeff Larsen issued a Decision Notice and a Finding of No Significant Impact. Among other things, the Decision Notice specifically authorized 1,055 acres of individual tree selection cutting of northern hardwood trees, as well as 95 acres of clear-cutting to regenerate soon-to-be-overmature aspen trees which were becoming susceptible to insects and disease.

Plaintiffs filed a timely administrative appeal of the Rolling Thunder decision pursuant to 36 C.F.R. § 215. On May 19, 1999, the Appeal Deciding Officer upheld Larsen's decision on Rolling Thunder.

On January 26, 2000, the plaintiffs filed a complaint in federal court challenging the Forest Service's decision to permit the Rolling Thunder project. Thereafter, the Forest Service withdrew two of the timber sales originally involved in the project.² On May 12, 2000, the plaintiffs filed an amended complaint challenging the remaining two timber sales. In the amended complaint, the plaintiffs alleged that the Rolling Thunder Decision Notice and the Finding of No Significant Impact are inconsistent with the Plan, and therefore in violation of the Forest Act and the Policy Act.

On cross-motions for summary judgment, the district court ruled in favor of the Forest Service on all counts. The district court gave a broad interpretation to language in the general section of the Plan on vegetation management. For sugar maples, the language provides that "[f]or stands managed uneven-aged, there is no restriction on acreage of selection cuts within any one 10-year period."³ The district court interpreted this language as exempting selection cutting of sugar maples from any acreage limitation. Therefore, the court concluded that it need not decide whether the acreage projections in the Plan set limits on the annual harvesting by selection cutting. Relying on the maxim of interpretation that specific language within a document should control over general language, the court concluded that the acreage average for selection cutting in Area 2.1 was general language about the harvesting of all trees and the Plan's statement about uneven-aged management of sugar maples is specific language about a particular kind of tree. The district court concluded, "[i]f the 2800-acre average controlled, then it would make no sense to state that unlimited selection cutting of sugar maples could occur." To avoid such an inconsistency, the district court reasoned that the Plan's language about uneven-aged management of sugar maples was an exception to any acreage limitation in Area 2.1. Because the court found that the plaintiffs had not demonstrated that the additional selection cutting in Area 2.1 involved trees other than sugar maples, the court concluded that the plaintiffs had not shown that the selection cutting in the Forest violated the terms of the Forest Plan.

The plaintiffs then filed this timely appeal. On appeal, we may "set aside the agency determination only if it is arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law." Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997) (citing 5 U.S.C. § 706).

II. Discussion

Plaintiffs' arguments can be summarized as follows: (1) the acreage projections contained in the Forest Plan should be construed as a limitation on logging in the Forest; and (2) the sentence in the Forest Plan which states that there is no limitation on the acres where sugar maples can be harvested, which was the basis of the district court's grant of summary judgment to the defendants, was improperly included in the Plan because it was never subjected to Policy Act analysis. We will address the plaintiffs' contentions in turn.

Plaintiffs assert that the approval of the Rolling Thunder project violates the Forest Act because the Forest Service is already permitting selection logging in Area 2.1 at a rate almost twice as great as, and inconsistent with, the rate projected in the Plan. Any additional harvest can serve only to exacerbate the excessive number of acres harvested by selection cutting.

The Forest Service counters that its approval of the Rolling Thunder project was proper and that timber harvesting within the Forest is not exceeding the amount foreseen in the Forest Plan. The Forest Plan set the Allowable Sale Quantity⁴ for the Forest at 780 million board feet per ten-year period. The parties agree...