Sierra Club v. Martin, 98-8358

• Citation: 168 F.3d 1
• Decision Date: 18 February 1999
• Docket Number: No. 98-8358,98-8358
• Parties: , 29 Envtl. L. Rep. 20,569, 12 Fla. L. Weekly Fed. C 504 SIERRA CLUB, Wilderness Society, et al., Plaintiffs-Appellants, v. George G. MARTIN, in his official capacity as Forest Supervisor of the Chattahoochee and Oconee National Forests; Robert C. Joslin, Regional Forester of the United States Forest Service for Region Eight, et al., Defendants-Appellees. Eleventh Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1

168 F.3d 1

48 ERC 1251, 29 Envtl. L. Rep. 20,569,

12 Fla. L. Weekly Fed. C 504

SIERRA CLUB, Wilderness Society, et al., Plaintiffs-Appellants, v. George G. MARTIN, in his official capacity as Forest

Supervisor of the Chattahoochee and Oconee National Forests;

Robert C. Joslin, Regional Forester of the United States

Forest Service for Region Eight, et al., Defendants-Appellees.

No. 98-8358.

United States Court of Appeals,Eleventh Circuit.

Feb. 18, 1999.

Donald D.J. Stack, Martin A. Shelton, Stack & Associates, PC, Atlanta, GA, Eric E. Huber, New Orleans, LA, for Plaintiffs-Appellants.

Mark R. Haag, U.S. Dept. of Justice, Washington, DC, for Defendants-Appellees.

J. Michael Klise, Thomas R. Lundquist, Steven P. Quarles, Crowell & Moring, LLP, Washingtonm, DC, for Bert Thomas, Cook Brothers Lumber, Parton Lumber and Thrift Brothers.

Robert L. Klarquist, Environment & Natural Resources Div., Dept. of Justice, Washington, DC, for Federal appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO ^*, Senior District Judge.

BARKETT, Circuit Judge:

The Sierra Club ¹ appeals the district court's grant of summary judgment to the United States Forest Service ("Forest Service") and intervenor timber companies in connection with the Forest Service's decision to allow seven timber sales in Georgia's Chattahoochee National Forest, which will enable logging (including clearcutting), road building and related activities. On appeal, Sierra Club asserts that the decision to permit the timber sales, which it contends will damage the forest environment, was arbitrary and capricious and thus violated the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, et seq., and the substantive regulations promulgated under NFMA. See 36 C.F.R. §§ 219.1 et seq. We reverse.

Background

The Chattahoochee and Oconee National Forests ("Forest") encompass 741,000 acres in the Appalachian Mountains of northern Georgia. In 1991, the Forest Service proposed to sell the timber rights to seven tracts within the Forest, totaling approximately 2,000 acres. In addition to the logging itself, the timber projects would require the construction of eighteen miles of roads into wilderness areas of the Forest, leading to a discharge of 155.1 tons of sediment into surrounding rivers and streams.

The Forest Service adopted the Land and Resource Management Plan ("Forest Plan") for the Forest in 1985 and amended it in 1989. ² Before any sales of timber can occur within the Forest, the Plan requires the Forest Service to conduct a site-specific study to determine whether the proposed timber sale would harm the area or its resident species. After conducting a study of the projected impact of the sales in question, the Forest Service determined that there would be no adverse impact and approved the sales.

Sierra Club subsequently filed suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, contending that these timber cutting projects would harm plant and animal species in the Forest. Sierra Club argued that, in conducting its study, the Forest Service did not obtain, and therefore did not consider, population inventory and population trend data for proposed, endangered, threatened, or sensitive species of plants and animals (collectively, "PETS species"), as required by the Forest Plan and the Forest Service's own regulations. Without such data, Sierra Club claimed that the study of the affected area was inadequate, making the decision to sell the timber parcels arbitrary and capricious. Sierra Club also argued that the decision to approve the sales violated 36 C.F.R. §§ 219.12, 219.19 & 219.26 because the Forest Service lacked the population data required by those regulations as well. Finally, Sierra Club challenged the Forest Plan itself, contending that it does not conform with NFMA because the proposed clearcutting will not adequately protect the Forest's soil, watershed, fish, and wildlife as required by the statute. See 16 U.S.C. § 1604(g)(3)(F)(v).

The district court granted summary judgment to the Forest Service and timber intervenors, holding that the Forest Service was not required to obtain the population and population trend data for PETS species before approving the timber sales and therefore that the Forest Service did not act arbitrarily and capriciously. Moreover, the district court found that Sierra Club's challenges to the timber sales under 36 C.F.R. § 219 did not lie because the regulations deal specifically with the formulation of forest plans, rather than site-specific actions initiated under an extant forest plan. Sierra Club now appeals.

We review grants of summary judgment de novo. Northlake Regional Medical Center v.Waffle House System Employee Benefit Plan, 160 F.3d 1301, 1303 (11th Cir.1998). Under the APA, agency actions should be reversed if they are found to be "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

Discussion

1. NFMA

Sierra Club first argues that the Forest Service violated NFMA by failing to comply with the Forest Plan's requirement that population inventory information be gathered and considered before implementing any decision affecting areas within the Forest. For each proposed project within the Forest, the Plan requires that the Forest Service perform a site-specific Environmental Assessment (EA), including a Biological Evaluation (BE) ³ of how the area will be affected by the project. ⁴ Specifically, the Forest Plan states in relevant part:

A biological evaluation of how a project may affect any species federally listed as threatened, endangered, or proposed, or identified by the Forest Service as sensitive, is done as part of the site-specific environmental analysis. This evaluation considers all available inventories of threatened, endangered, proposed and sensitive species populations and their habitat for the proposed treatment area. When adequate population inventory information is unavailable, it must be collected when the site has high potential for occupancy by a [PETS] species.

Pursuant to the Forest Plan, a BE was done as part of the EA for each of the seven timber projects at issue. Thereafter, the Forest Service determined that no further evaluations were necessary and issued Findings of No Significant Impact (FONSIs) for each tract. The locus of this dispute is whether the Forest Service, in conducting its BEs and EAs, adequately researched the potential impact of the proposed timber sales before issuing FONSIs.

There is no disagreement between the parties that numerous plants and animals identified by the Forest Service as sensitive as well as several that are endangered inhabit the proposed timber project areas. In addition, the parties agree that the habitat in sections of the project areas are suitable for other sensitive and endangered species. However, the Forest Service had no population inventory information and little in the way of population data for thirty-two of the thirty-seven vertebrate PETS species that inhabit the Forest. Sierra Club contends that, in light of the acknowledged presence of many PETS species in the areas at issue, the Forest Service was required by the Forest Plan to gather population data before permitting the timber sales to proceed. By failing to collect these data, Sierra Club argues, the Forest Service violated the Forest Plan and the provision of NFMA mandating compliance with the Plan.

The Forest Service, on the other hand, argues that its data are adequate and that population studies are required only if the site has a high potential for occupancy by PETS species. It maintains that its field visits and consultation of compartment maps, CISC ⁵ data and Georgia Natural Heritage Program ("GNHP") ⁶ maps indicate that the sites of the timber sales either do not have high potential for occupancy by PETS species, or suffice to demonstrate the continued viability of those PETS species that do occupy the areas. This habitat information, it asserts, is adequate to satisfy the requirements of the Forest Plan. Moreover, in its view, the Forest Service has the discretion to make determinations of potential impact based on information other than population inventory information, strictly defined.

While the Forest Service's interpretation of its Forest Plan should receive great deference from reviewing courts, "courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself." Simmons v. Block, 782 F.2d 1545, 1550 (11th Cir.1986). Moreover, the Forest Service cannot ignore the requirements of the Forest Plan. As NFMA makes plain, "[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans." 16 U.S.C. § 1604(i); see also Thomas Jefferson University v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (no deference due to agency interpretation that contradicts the regulation's plain language); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (reviewing court may remand a case to the agency "[i]f the record before the agency does not support the agency action [or] if the agency has not considered all relevant factors ...").

The Forest Service admits in numerous places in the record that sensitive species do occur within the project sites and acknowledges that those individuals would be destroyed by the proposed timber sales. It then notes in each case that because the species also exist elsewhere within the Forest, the timber projects would not significantly impact the species' diversity or viability. Yet, the Forest Service reached this conclusion without gathering any inventory or population data on many of the PETS species. Though these...