Sierra Club v. Marita, Civ. A. No. 90-C-0336.

• Decision Date: 09 February 1994
• Docket Number: Civ. A. No. 90-C-0336.
• Citation: 843 F. Supp. 1526
• 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 Michael B. Hathaway as Forest Supervisor of the Nicolet National Forest, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

843 F. Supp. 1526

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 Michael B. Hathaway as Forest Supervisor of the Nicolet National Forest, Defendants.

Civ. A. No. 90-C-0336.

United States District Court, E.D. Wisconsin.

February 9, 1994.

COPYRIGHT MATERIAL OMITTED

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

Wells D. Burgess & Louise Milkman, U.S. Dept. of Justice, Environment & National Resources Div., General Litigation Section, Washington, DC, for defendants.

DECISION AND ORDER

REYNOLDS, District Judge.

In this action, filed April 2, 1990, plaintiffs, three conservation groups, claim that the United States Forest Service ("the Service") violated various statutory and regulatory provisions by failing to consider basic principles of ecology in developing a management plan for the Nicolet National Forest ("the Nicolet"). Plaintiffs further claim that the Service failed to provide adequate opportunities for "remote" forms of forest recreation and failed to consider a sufficient range of alternative forest plans. Both sides have filed motions for summary judgment, on which oral argument was heard September 3, 1992. For reasons set forth below, the court now denies the motion filed by plaintiffs and grants the motion filed by defendants.

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

The Nicolet National Forest, whose boundaries encompass almost a million acres in northeastern Wisconsin, of which about 655,000 acres are national forest land, is managed according to the prescriptions set forth in a rather detailed document, the "Land and Resource Management Plan," issued by the Service. Development of the current plan, which covers the period from 1986 to 1995, began in 1980 under the direction of the Nicolet Forest Supervisor, Jim Berlin ("Berlin"). A draft version of the plan was formally issued to the public on November 9, 1984, along with a draft environmental impact statement comparing the 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" or "regional office"), which includes the Nicolet, 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 February 22, 1988, Service Chief F. Dale Robertson ("the Chief") issued a decision affirming the plan in part and remanding it in part to the Regional Forester.

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 Nicolet for scientific and recreational purposes, which allegedly will be adversely affected by implementation of the plan. (Compl. at ¶¶ 57; Jan. 21, 1992 Aff's of George Hall, Emmet Judziewicz, Donald Waller, William Alverson, Jean Anderson, Jim Young, Clark Gaskill.¹) Plaintiffs raise three distinct but related claims.

First, they claim that in developing the plan, the Service ignored important scientific principles and, as a result, failed to consider the plan's effect on "biological diversity," thereby violating 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.

Second, plaintiffs claim that the Service failed to provide adequate opportunities for "remote" forms of recreation, in violation of the NFMA, 16 U.S.C. §§ 1604(e)(1), (g), and associated regulations, which, together with MUSYA, 16 U.S.C. § 528, identify recreation as one of the purposes of the national forest system and require the Service to provide a "broad spectrum" of recreational opportunities and to inventory the forests' recreational resources. Finally, plaintiffs claim the Service violated NEPA, 42 U.S.C. § 4332(2)(C)(iii), and associated regulations, by failing to consider an adequate range of alternative forest plans with more varied amounts of logging and road building.

Because each of these claims is brought pursuant to the APA, the challenged 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 Nicolet forest plan and the "ripeness" of the instant dispute.

II. Standing and Ripeness

A. Background

The plan, a document the size of a suburban phone book, establishes fairly specific objectives for recreational and commercial use of the Nicolet over the period of a decade or so and prescribes management practices necessary to achieve those objectives and to fulfill other statutory requirements. The objectives for recreational use are classified according to several different forms of recreation — "developed," "dispersed," "wilderness," and hunting, fishing, and trapping— and are quantified in terms of "visitor days per year." (Plan at 22.)² The objective for timber harvesting is set at 97 million "board feet" of timber per year, allocated among six categories of timber type, each of which is subclassified according to harvest method, age-class, and forest district (there are four of them). (Id. at 22, 25-27, 33-35.)

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 number of miles of roads to be maintained, closed, and newly constructed; the number of new campsites and trails to be constructed; and the acreage of "wildlife openings" to be maintained, trees to be harvested, and trees to be "regenerated." (Id. at 23-24.) Also, the plan divides the forest into dozens of smaller geographic sections, each of which is identified by one of 16 "Management Areas" that represent different combinations of management practices and recreational environments. (Id. at 83-156.)

Finally, the plan sets forth a number of forest-wide "guidelines necessary to implement" the plan's management prescriptions. (Plan at 36, 37-82.) The guidelines range from general policy statements concerning, for example, the construction of trails and recreation areas, to quite specific instructions concerning timber harvesting methods, the protection of "sensitive" species, and the construction of roads. (Id.).

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). There is no question that the alleged injury in this case concerns a concrete, legally cognizable interest—personal and professional enjoyment of the Nicolet environment — nor that plaintiffs and their members would themselves be "among the injured." Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1365-66, 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." (Mar. 6, 1992 Def.Br. at 3.) 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 production and management, and the availability and suitability of lands for resource management.

* * * * * *

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

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