Sierra Club v. Marita, Civ. A. No. 90-C-0989.

• Decision Date: 07 March 1994
• Docket Number: Civ. A. No. 90-C-0989.
• Citation: 845 F. Supp. 1317
• Parties: SIERRA CLUB; Wisconsin Forest Conservation Task Force; and Wisconsin Audubon Council, Inc., Plaintiffs, v. Floyd J. MARITA, as Regional Forester of the Eastern Region of the Forest Services, United States Department of Agriculture; F. Dale Robertson as Chief of the Forest Services; and Jack A. Blackwell as Forest Supervisor of the Chequamegon National Forest, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

845 F. Supp. 1317

SIERRA CLUB; Wisconsin Forest Conservation Task Force; and Wisconsin Audubon Council, Inc., Plaintiffs, v. Floyd J. MARITA, as Regional Forester of the Eastern Region of the Forest Services, United States Department of Agriculture; F. Dale Robertson as Chief of the Forest Services; and Jack A. Blackwell as Forest Supervisor of the Chequamegon National Forest, Defendants.

Civ. A. No. 90-C-0989.

United States District Court, E.D. Wisconsin.

March 7, 1994.

Walter Kuhlmann, Boardman, Suhr, Curry & Field, Madison, WI, for plaintiffs.

Wells D. Burgess and Louise Milkman, U.S. Dept. of Justice — Environment & Natural Resources Div. — Gen. Litigation Section, Washington, DC, and Mel S. Johnson, Asst. U.S. Atty., Milwaukee, WI, for defendants.

DECISION AND ORDER

REYNOLDS, District Judge.

In this action, the plaintiffs, three conservation groups, claim that the United States Forest Service ("the Service") violated various environmental statutes and regulations by failing to consider basic principles of ecology in developing a management plan for the Chequamegon National Forest. Both sides have filed motions for summary judgment. For reasons set forth below, plaintiffs' motion will be denied and defendants' motion granted.

This action is brought pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Jurisdiction in this court is based upon 28 U.S.C. § 1331.

I. Overview and Procedural History

The Chequamegon (She-WA-me-gon) National Forest, encompassing almost 845,000 acres in northwestern Wisconsin, is managed according to the terms of a "Land and Resource Management Plan" ("plan" or "forest plan") issued by the Service. Development of the current plan, which covers the period from 1986 to 1995, began in the early 1980s under the direction of the Chequamegon Forest Supervisor. A draft version of the plan was formally issued to the public on March 29, 1985, along with a draft environmental impact statement comparing the environmental impact of the draft plan to that of several alternative plans. There followed, pursuant to 16 U.S.C. § 1604(d), a period of public comment, as a result of which the draft plan was modified in certain respects.

On August 11, 1986, the Service's Regional Forester for the Eastern Region ("Regional Forester"), which includes the Chequamegon, issued the final plan, the final environmental impact statement ("FEIS"), and a Record of Decision explaining why the plan had been approved. The plan then was challenged in an administrative appeal by various citizens' groups, including the instant plaintiffs. On January 31, 1990, Service Chief F. Dale Robertson ("the Chief") issued a decision affirming the plan in pertinent part.

Plaintiffs Sierra Club, Wisconsin Forest Conservation Task Force, and Wisconsin Audubon Council, Inc., are organizations dedicated to the enjoyment, study, and conservation of forests and other natural resources. Members of each organization use the Chequamegon for scientific, professional and recreational purposes, which allegedly will be adversely affected by implementation of the plan. (Compl. at ¶¶ 5-7; May 22, 1992 George Hall Aff.; May 21, 1992 Sharon Clark Gaskill Aff.; May 22, 1992 William Alverson Aff.; May 20, 1992 Allen Hillery Aff.; May 20, 1992 Rolland Kiel Aff.; May 12, 1992 Fred Lesher Aff.; May 8, 1992 Samuel Robbins Aff.; May 7, 1992 Thomas Syverud Aff.; May 22, 1992 Donald Waller Aff.¹) The problem with the forest plan, plaintiffs claim, is that the Service ignored important scientific principles in developing it and, as a result, failed to consider its effect on "biological diversity," thereby violating the following statutes and various regulations associated with them: the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., which requires a "hard look" at the environmental consequences of federal action; the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., which governs the development of forest plans and requires that they provide for biological diversity; and the Multiple-Use Sustained-Yield Act ("MUSYA"), 16 U.S.C. § 528 et seq., which bars impairment of the productivity of the land.

Because plaintiffs' claims under these statutes are brought pursuant to the APA, the challenged agency action may be set aside only if shown to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). With this standard in mind, the court will address the merits of plaintiffs' claim, after first reviewing their standing to challenge the Chequamegon forest plan and the "ripeness" of the controversy.

II. Standing and Ripeness

A. Background

The plan, a document the size of a suburban telephone book, establishes fairly specific objectives for recreational and commercial use of the Chequamegon over the period of a decade and prescribes management practices necessary to achieve those objectives and to fulfill other statutory requirements. The objectives for recreational use are quantified in terms of the amount of time visitors to the forest spend in various recreational environments or activities ("semi-primitive nonmotorized recreation," "semi-primitive motorized recreation," "roaded natural recreation," and hunting and fishing). (Plan at 8, Tbl. IV-1.)² The objective for timber harvesting is set at 70 million "board feet" of timber per year, allocated among six categories of timber type, four harvest methods, and dozens of defined geographical areas. (Plan at 8, Tbl. IV-1; App. C at 1-16, 36-44.)

To accomplish these objectives, the plan sets forth a number of management prescriptions to be implemented over the course of ten years, specifying (among other things) the mileage of roads and trails to be constructed or reconstructed, the acreage of "permanent wildlife openings" and "habitat improvements" to be constructed, and the acreage of trees to be harvested, planted, and "regenerated." (Plan at 8-9, Tbl. IV-1.) In addition, each of the dozens of geographical areas into which the forest plan divides the forest is assigned one of 16 "Management Prescriptions" representing different combinations of management practices and recreational environments. (Id. at 104-192; App. C at 1-35.)³

Finally, the plan sets forth a number of "forest-wide standards" that guide implementation of the plan's management prescriptions. (Plan, Ch. IV at 21-100.) The guidelines range from general policy statements, concerning, for example, the construction of trails and recreation areas, (Id., Ch. IV at 26-28), to quite specific instructions concerning timber harvesting methods and wildlife "habitat management." (Id., Ch. IV at 39-66, 79-88.)

B. Analysis

A case or controversy for purposes of Article III arises where an injury, the invasion of a "concrete" and legally cognizable interest, has occurred or is "imminent," is traceable to the defendant's action, and is redressable by a decision in the plaintiff's favor. Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). It is not disputed that the alleged injury in this case concerns a concrete, legally cognizable interest — personal and professional enjoyment of the Chequamegon environment — nor that plaintiffs and their members are "among the injured." Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). Defendants contend, however, that plaintiffs' injury is not imminent because the source of the anticipated injury is not the plan itself but implementation of the plan, which must await the development of site-specific projects (such as individual timber sales) that will be subject to their own environmental analyses. See 40 C.F.R. §§ 1502.14(d), 1508.9(b). Thus, defendants insist, though plaintiffs will have standing to challenge such projects as they are developed, they do not have standing to challenge the plan as a whole.

The court disagrees. Contrary to defendants' assertion, the plan does not "merely state guidelines and parameters to be followed in the event a project is undertaken." (Apr. 27, 1992 Def. Br. at 45.) While the plan certainly includes such guidelines and parameters, it also sets forth, as indicated in the previous section, a whole array of exceedingly specific management "prescriptions" that are in no sense conditional or optional. Consider the following regulations:

Plans guide all natural resource management activities and establish management standards and guidelines for the National Forest System. They determine resource management practices, levels of resource productions and management, and the availability and suitability of lands for resource management.

* * * * * *

Plan implementation. As soon as practicable after approval of the plan, the Forest Supervisor shall ensure that, subject to valid existing rights, all outstanding and future permits contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the plan. Subsequent administrative activities affecting such lands, including budget proposals, shall be based on the plan.

36 C.F.R. §§ 219.1(b), § 219.10(d). Similarly, the forest plan makes clear that it determines how the forest will be managed; site-specific projects are "designed to carry out the Forest Plan direction." (Plan, Ch. V at 4.)

Thus, while the plan does not itself spell out the numerous site-specific projects necessary to its implementation, it clearly does require that such projects be undertaken, and it dictates their cumulative effect, which, after all, is what plaintiffs are concerned about. Moreover, barring amendment or revision (see 36 C.F.R. §§ 219.10(f), (g)), neither of which is said to be in the offing, the plan is certain to be implemented in its current form. Thus, because the current plan mandates,...