Shenandoah Ecosystems Defense v. U.S. Forest Serv.

• Decision Date: 14 March 2001
• Docket Number: No. CIV.A. 5:00CV00009.,CIV.A. 5:00CV00009.
• Parties: SHENANDOAH ECOSYSTEMS DEFENSE GROUP, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

144 F.Supp.2d 542

SHENANDOAH ECOSYSTEMS DEFENSE GROUP, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.

No. CIV.A. 5:00CV00009.

United States District Court, W.D. Virginia, Harrisonburg Division.

March 14, 2001.

COPYRIGHT MATERIAL OMITTED

Theodore Jack Korth, Carmel Nelson & Dugger, PLC, Charlottesville, VA, for plaintiffs.

John F. Corcoran, U.S. Attorney's Office, Roanoke, VA, for defendants.

MEMORANDUM OPINION

WILSON, Chief Judge.

Plaintiffs Shenandoah Ecosystems Defense Group, Wade A. Neely, Earl Cash, Jimmy Williams, and Rock Haven Lodge, Inc., (collectively, the "plaintiffs") bring this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., seeking judicial review of actions undertaken by defendants United States Forest Service, Forest Supervisor William E. Damon, Jr., and District Ranger David Rhodes (collectively, the "Forest Service") with respect to the proposed Chestnut Ridge #2 Timber Sale within the George Washington and Jefferson National Forests. The plaintiffs allege that the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and those statutes' applicable regulations because (1) the administrative record is not sufficient to justify the Forest Service's Finding of No Significant Impact ("FONSI"), and (2) the Forest Service did not complete an Environmental Impact Statement ("EIS") prior to authorizing the Chestnut Ridge # 2 Timber Sale. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, 1361, and 5 U.S.C. § 701 et seq. This matter is before the court on cross motions for summary judgment. Finding that it lacks jurisdiction over it, the court dismisses the plaintiffs' claim under the Endangered Species Act. Upon an independent review of the administrative record, the court concludes that the Forest Service is entitled to summary judgment on all remaining claims because its decision was not arbitrary or capricious not an abuse of discretion, and not shown to be in violation of law.

I.

The material facts of this case are not in dispute. Defendant United States Forest Service is the agency of the United States Government, Department of Agriculture, that administers the National Forest System within the laws established by Congress.¹ The United States Forest Service maintains offices at the national, regional, forest, and district levels. Accordingly, the United States Forest Service manages the George Washington and Jefferson National Forests for various uses, such as recreation, wilderness, and timber.

At issue in this action is the proposed Chestnut Ridge #2 Timber Sale ("timber sale"). The location of the timber sale is in the southern portion of the Deerfield Ranger District, George Washington National Forest, in Bath County, Virginia. (Administrative Record ("AR") Tab 170.) As detailed in the Final Revised Land and Resource Management Plan for the George Washington National Forest ("Forest Plan"), the purpose and need for the project is to achieve management direction for a portion of Management Area-15 ("MA-15"). (AR Tab 133 at 1.) The Desired Future Condition ("DFC") of MA-15 is to have breeding, nesting, and a fall and winter wildlife habitat in a balanced age class mosaic of hardwood and pine vegetation to provide, among other things, a continuous supply of hard and soft mass. (Id. at 1.) To accomplish that DFC, the timber sale project would involve harvesting timber, constructing roads, wildlife openings, and wildlife habitat, prescribing burning, and other silvicultural or wildlife habitat work on the eastside of Chestnut Ridge. (AR Tab 120 at 1-2.)

Plaintiffs Wade A. Neely, Earl Cash, and Jimmy Williams are landowners who live along Virginia State Route 629 in Bath County, which is adjacent to the proposed timber sale area. They regularly use their property and the property on which the timber sale is to occur for hunting and other recreation. In addition, plaintiff Neely maintains ponds on his property that are fed by waters flowing from the area of the timber sale. Plaintiff Rock Haven Lodge, Inc., also owns land along Virginia State Route 629, and its members regularly use its property and the property on which the timber sale is to occur for hunting and other recreation. Finally, plaintiff Shenandoah Ecosystems Defense Group contains members who regularly read about, visit, recreate on, and work to protect the ecosystems of the land of the George Washington National Forest in and around the area of the Chestnut Ridge # 2 site. In addition, its members include owners of property adjacent to or located downslope of the proposed timber sale area.

The administrative history of the timber sale project dates back over four years. On May 30, 1996, the Deerfield Ranger District, George Washington National Forest, issued a scoping notice to the public for comments on the proposed timber sale. (AR Tab 38.) Next, on January 17, 1997, the Environmental Assessment ("EA") was submitted to the public for comments for thirty days. (AR Tab 68.) Finally, on November 12, 1997, David Rhodes, District Ranger for the Deerfield Ranger District,² issued a Decision Notice and FONSI for the timber sale. (AR Tab 79.)

In response, five appeals were filed with the Appeal Deciding Officer, Regional Forester Elizabeth Estill, (AR Tabs 100-103, 114), but one was dismissed for lack of timeliness, (AR Tab 120). The remaining four appellants included current plaintiffs Shenandoah Ecosystems Defense Group, Neely, and Williams. On March 13, 1998, the Appeal Deciding Officer reversed the District Ranger's decision on the timber sale, concluding that, in making his decision, the District Ranger had not adequately responded to issues and questions that the public had raised regarding water quality. (AR Tab 129.)

Accordingly, the District Ranger conducted additional analyses and, on August 20, 1998, sent a Revised EA to the public for comment. (AR Tab 133.) Then, on February 1, 1999, the District Ranger issued a second Decision Notice and FONSI for the timber sale. (AR Tab 170.) Those documents contained the rationale for the decision and the environmental effects of the proposed action. In addition, those documents appropriately were tiered to the 1993 Final EIS prepared for the Forest Plan. (AR Tab 3.) All of the plaintiffs filed a timely notice of appeal to the FONSI pursuant to the administrative appeal procedures for the national forest system. See 36 C.F.R. § 215 et seq.

The District Ranger's Decision Notice selected Alternative 2 from the Revised EA. (AR Tab 170 at 1.) That alternative harvests approximately eighty-six acres of timber in seven stands by the modified shelterwood cutting method and also thins seventy-three acres in two stands. It also constructs 1.5 miles of system road and twenty-nine acres of permanent wildlife openings. Other wildlife treatments include releasing grapevines and mass-producing crop trees on 107 acres along with prescribed burning on twenty-five acres. After harvesting, eighty-six acres in five stands will be site prepared for a natural regeneration using chainsaws and hand tools.

Elevations in the project area range from about 1750 feet to 3280 feet. (AR Tab 133 at Maps.) The timber sale is drained by small intermittent and perennial streams that flow off the northwest slopes of Chestnut Ridge and into Stuart Run. The Forest Service maintains that the soils on the timber sale fully are capable of supporting the planned timber harvest activities, with the applicable Forest Plan Standards and Guidelines and Virginia Best Management Practices being implemented as part of the project. (Id. at 32.) In contrast, the plaintiffs assert that it is impossible to state that the soils in the timber sale's area are capable of supporting the cut.

The age class distribution of the various tree species on the timber sale is predominantly in the 51-100+ year age classes. (Id. at 26.) Currently, about six percent of the project area is in the 0-20 year age class and seven percent of it is in the 21-30 year age class.

The project area is to be managed to meet adopted visual quality objectives of partial retention. (Id. at 35.) Virginia State Route 629 runs along the western side of the project area. The proposed thinning within stand 748/38 lies within the foreground zone of that route. All other stands lie in middle ground as viewed from Virginia State Route 629 or the unseen slopes of Chestnut Ridge.

In response to the District Ranger's Decision Notice issued on February 1, 1999, selecting Alternative 2 from the Revised EA, a total of nine notices of appeal were filed with the Appeal Deciding Officer, including those filed by the plaintiffs. (AR Tabs 175-183.) Three of those nine appeals were dismissed for various reasons. On May 18, 1999, in separate decisions, the Appeal Deciding Officer affirmed the District Ranger on all issues. (AR Tabs 196-201.) After the Appeal Deciding Officer issued those decisions, the timber sale was scheduled for offering. Bids for the sale were scheduled for opening in the Deerfield Ranger District Office on February 8, 2000. However, due to this litigation, the Forest Service canceled the bid opening on February 4, 2000.

II.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). When the court reviews an administrative agency's decision, the summary judgment motion "stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court's review." Krichbaum v. Kelley, 844 F.Supp. 1107, 1110, (W.D.Va.1994). Because the factual record is closed, the "plaintiff's burden on summary judgment is not materially different from his ultimate burden on the merits." Id. Thus, to survive summary judgment, "the pla...