Ohio Envtl. Council v. U.S. Forest Serv.

• Decision Date: 30 March 2023
• Docket Number: 2:21-cv-04380
• Parties: OHIO ENVIRONMENTAL COUNCIL, Plaintiff, v. U.S. FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

1

OHIO ENVIRONMENTAL COUNCIL, Plaintiff, v. U.S. FOREST SERVICE, et al., Defendants.

No. 2:21-cv-04380

United States District Court, S.D. Ohio, Eastern Division

March 30, 2023

Kimberly A. Jolson, Magistrate Judge.

OPINION & ORDER

ALGENON L. MARBLEY, CHIEF UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Plaintiff Ohio Environmental Council (“OEC”), an Ohio non-profit environmental organization, brings this action against the United States Forest Service (“USFS” or “the Forest Service”), Randy Moore in his official capacity as the Chief of the USFS, Carrie Gilbert in her official capacity as the Forest Supervisor of the Wayne National Forest (“the Wayne” or “the Forest”), and Tim Slone in his official capacity as the District Ranger for the Ironton Ranger District of the Wayne (collectively, “Defendants”). OEC challenges the Forest Service's Final Decision Notice and Finding of No Significant Impact (“FDN-FONSI”) for the Sunny Oaks Project (“SOP” or “the Project”), alleging that the decision violates the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370h, and the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. §§ 1600-1687.

Now before the Court are the parties' cross-motions for summary judgment. (See Pl.'s Mot. for Summ. J., ECF No. 18; Defs.' Cross-Mot. for Summ. J., ECF No. 24). The Ohio Forestry Association (“OFA”) has also filed an amicus curiae brief in support of Defendants' summary judgment motion. (See Br. of Amicus Curiae, ECF No. 25-1). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion and GRANTS IN PART and DENIES IN PART Defendants' motion.

II. BACKGROUND

A. Factual Background^[1]

1. History and Context of the Wayne National Forest

The Wayne National Forest is located in 12 counties across southeast Ohio, in the foothills of the Appalachian Mountains. AR 19412. The Wayne consists of a patchwork of federal and private land. The Wayne presently includes about 244,000 acres of federal land; the Proclamation Boundary for the Wayne, which was established in 1934 and sets the outer limits of the land that the Forest Service is authorized to acquire and incorporate into the Wayne (assuming willing sellers and available funds), covers approximately 875,000 acres. See Land Statistics, U.S. FOREST SERV., https://www.fs.usda.gov/detailfull/wayne/about-forest/?cid=fsm9006090. The Wayne consists of three units, two of which are managed out of the Athens Ranger District and one of which is managed by the Ironton Ranger District (“IRD”). The Sunny Oaks Project, the subject of this case, is located within the IRD.

The Wayne is governed pursuant to NFMA and the Multiple-Use Sustained-Yield Act of 1960 (“MUSYA”), 16 U.S.C. §§ 528-31. NFMA requires the Forest Service develop a governance plan for each national forest, which set out a framework for the goals, standards, and objectives of the Forest Service's management of each forest. See 16 U.S.C. § 1604. The most recent Forest Plan for the Wayne was promulgated in 2006 (officially called the “Final Revised Land and Resource Management Plan”) and includes, among other policies, forest-wide standards (“SFWs”) and forest-wide guidelines (“GFWs”). See AR 19404-19715. As relevant to this action, SFW-TES-12, which is intended to protect the roosting habitats of the endangered Indiana bat, mandates that:

With all hardwood timber harvests, retain a minimum of 12 live trees per acre (averaged over the cutting unit) of any species that are six inches or more dbh with large areas of loose bark, unless they pose a safety hazard.

In addition to these, retain live preferred roost trees, when present, to provide a supply of future roost trees (i.e., large, overmature trees). See Appendix D for list of tree species preferred as roost trees by Indiana bats. See Table 2-3 for preferred tree sizes. Consult with U.S. Fish and Wildlife Service regarding exceptions that may be needed to minimize adverse effects to other resources or human health and safety.

AR 19442. Second, GFW-VEG-11 dictates that:

Under two-aged regeneration harvests, leave approximately 15 to 30 square feet of basal area per acre uncut. Select leave tree species and distribution to meet wildlife habitat objectives.

AR 19447. Pursuant to NFMA, all actions and projects within the Wayne must be consistent with the 2006 Forest Plan. See 16 U.S.C. § 1604(j). Deviations from standards in the Forest Plan require formal amendment processes, but deviations from guidelines do not.

The 2006 Forest Plan also sets out a number of objectives for the Forest Service's management of the Wayne, including: (1) promoting oak-hickory ecosystems “by improving conditions for oak regeneration”; (2) creating early successional hardwood habitats, also known as “young, brushy forest” habitats; and (3) designating commercial timber harvests. AR 19436; see AR 19446. As these objectives are three of the four stated purposes for the Sunny Oaks Project, the Court explains each in greater detail.

First, “young, brushy” forest habitats consist of “dense thickets of young shrubs and trees” under ten years old, including “lots of herbaceous plants, lots of flowering plants, [and] lots of berry producing shrubs.” Id. This type of habitat is important for over one-third of the land animals, as well as numerous bird species, in the Wayne. AR 13516. The Wayne, however, is lacking in young, brushy habitats; though the 2006 Forest Plan suggests that about 7,300 acres of the Forest should be young, brushy habitat (roughly 3% of the Forest), there are currently only 156 acres of young, brushy habitat (0.06% of the Forest). Id. The lack of young, brushy habitat has contributed to a steep decline in various bird species in the Wayne. AR 13516-17.

Second, oak-hickory ecosystems are highly important for plant and wildlife diversity; oak trees provide cover and food for a variety of animals. AR 13520, 19822. In particular, the American white oak (Quercus alba) is considered a “singularly important ecological keystone species.” (Pl.'s Mot. for Summ. J. at 9, ECF No. 18). Oak-hickory is the most common forest type in the Wayne, comprising 47% of the Forest as of 2006, but is on the decline and is less prevalent in younger tree stands (specifically, in stands younger than 70 years old), due to the difficulty of regenerating oaks-i.e., growing new oak trees. AR 19823. Oak-hickory ecosystems require active management to promote the growth of younger oaks, in part because oaks are long-lived but produce fewer acorns as they age and in part because oak trees are disturbance-dependent. AR 13522-23. What this means is that young oaks, which have intermediate shade tolerance, grow best as seedlings when there is an overstory (or canopy) of larger, mature oaks blocking sunlight; but in order for oak saplings to develop to full maturity and thrive, they need a “disturbance” at some point that removes the overstory and exposes them to full sunlight. See AR 13523. Accordingly, the Forest Service has determined that the percentage of the Wayne that is made up of oak-hickory stands will decline without active management promoting oak regeneration (i.e., by thinning out some percentage of existing mature oaks). See AR 13533.

Third, the Wayne was first established pursuant to the Weeks Act of 1911, Pub. L. No. 61435, 36 Stat. 961 (1911), which authorized the purchase of lands for the National Forest System for timber harvesting. As such, a long-standing objective of governance of the Wayne has been to provide commercial timber harvests. See AR 19413. But historically, timber harvesting in the Wayne was not substantial. Under the 2006 Forest Plan, the Forest Service estimated that it would implement up to 1,925 acres of even-aged timber harvests in the first decade of the plan (and up to 2,257 acres in the second decade), AR 19632, but, in fact, actually implemented less than 200 acres of harvests. See AR 19392. The Wayne was assigned timber harvest targets in the range of 0 to 8407 centum cubic feet (“CCF”) for the 2007-2017 fiscal years, AR 12192, before the target jumped up to 14,607 CCF for fiscal year 2018^[2] and was projected at the time to continue increasing to approximately 32,000 CCF for the fiscal years 2021 through 2023. See AR 540.

2. The Sunny Oaks Project

In April 2018, the Forest Service issued a notice proposing the Sunny Oaks Project and requesting comments on the proposed scope of the Project. AR 541-42. The proposal noted the Project had four stated purposes: (1) create young, brushy forest that is lacking in the area; (2) regenerate oak forest in areas where it is favored so that forest type is maintained across the landscape; (3) address disease and illness;^[3] and (4) contribute to the local economy through commercial timber harvests. AR 13515. The OEC submitted scoping comments. See AR 98189; see also AR 990-1266 (attachments to OEC comments). After the scoping period, the Forest Service prepared specialist reports on the potential effects of the Project proposal and one alternative, see, e.g., AR 5293-5368 (biological assessment prepared by the Fish and Wildlife Service), and issued an Environmental Assessment (“EA”) in December 2018.^[4] The EA and accompanying material were communicated to the public in the form of PowerPoint presentations. See AR 9658, 13097-408, AR 13513-92. The Forest Service then invited public comment. The OEC submitted a comment, including an extensive literature review focused on the white oak. See AR 10423-39; see also AR 10443-831, 10843-2800 (attached literature).

The EA evaluated the potential impacts of two approaches to the Project: the Proposed Action and Alternative 2, which had been developed in response to scoping comments...