Sierra Club v. Robertson

• Decision Date: 22 October 1992
• Docket Number: No. 90-2150.,90-2150.
• Parties: SIERRA CLUB, et al. v. F. Dale ROBERTSON, et al.
• Court: U.S. District Court — Western District of Arkansas

810 F. Supp. 1021

SIERRA CLUB, et al. v. F. Dale ROBERTSON, et al.

No. 90-2150.

United States District Court, W.D. Arkansas, Fort Smith Division.

October 22, 1992.

COPYRIGHT MATERIAL OMITTED

Mary M. Rawlins, Mena, AR, Michael H. Crawford, Hot Springs, AR, and William Ballard, Watson, OK, for plaintiffs and plaintiff-intervenors.

Winston Bryant, Jeffrey A. Bell, Arnold M. Jochums, and Charles L. Moulton, Atty. General's Office, Little Rock, AR, for plaintiff-intervenor, State of Ark.

J. Michael Fitzhugh, Charles E. Smith, Mark W. Webb, U.S. Attorney's Office, Fort Smith, AR, and Rebecca A. Donnellan and David F. Shuey, Dept. of Justice, Gen. Litigation Section, Environment and Natural Resources Div., Washington, DC, for defendants.

Searcy W. Harrell, Jr., Roberts, Harrell & Lindsey, Camden, AR and Steven P. Quarles, and Thomas R. Lundquist, Crowell & Moring, Washington, DC, for intervenor-defendants.

MEMORANDUM OPINION

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The Sierra Club and others have sued the Forest Service and some of its officers, challenging the agency's timber harvesting plans in the Ouachita National Forest ("Ouachita"). At issue is an alphabet-soup mix of acronyms representing various studies the agency has made regarding land use (especially timber management) in the Ouachita, and the federal statutes requiring these studies. Defendants have moved for judgment on the record. The motion will be granted.

I.

A.

The Ouachita consists of just less than 1.6 million acres located in twelve west-central Arkansas counties and two southeast Oklahoma counties. Timber has been a major industry in this area for decades. Recently, harvest methods have created an intense controversy between environmentalists on one side and the timber industry and Forest Service on the other. Simply put, in selected areas of the Ouachita, the agency wants to cut existing trees and grow pine trees of uniform height, which in turn will be harvested. (This method of timber production is known as even-aged management.) The plaintiffs in this lawsuit have a principled objection to any use of even-aged management techniques and the use of herbicides in clearing the forest for the growth of new pine. Plaintiffs have requested judicial review of this timber management scheme under the Administrative Procedure Act, 5 U.S.C. § 702. Their complaint raises claims under the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347.

B.

Before embarking on a plan of action, the Forest Service must give effect to numerous statutes and regulations. Congress passed NEPA and NFMA, and to these schemes of complex rules required the executive branch to add additional layers. For example, the Council on Environmental Quality issued regulations enforcing NEPA and the Forest Service issued regulations enforcing NFMA. NEPA requires an environmental impact statement ("EIS") from agencies contemplating "major" actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i). NEPA also requires consideration of the unavoidable adverse environmental effects of a proposed action; the possible alternatives to the action; the relationship between short-run effect on the environment versus the long-run impact on productivity; and any irreversible and irretrievable commitments of resources effected by the action. 42 U.S.C. § 4332(2)(C)(ii)-(v). NEPA regulations also define the EIS process. See, e.g., 40 C.F.R. §§ 1501.4, 1502, and 1508.11.

NFMA is of special significance to timber harvesting. It requires the Forest Service to develop land and resource management plans for the National Forest System. See 16 U.S.C. § 1604(a). For each National Forest, an interdisciplinary team prepares an integrated plan based on inventories of forest resources. In NFMA Congress directed the Forest Service to write regulations encompassing manifold purposes, including placing limits on the harvesting of timber on federal land administered by the Forest Service. The relevant NFMA regulations may be found at 36 C.F.R. § 219.1 et seq.

C.

In 1986 the Forest Service approved a land and resource management plan for the Ouachita National Forest pursuant to NFMA and released an accompanying final environmental impact statement ("FEIS") pursuant to NEPA. In 1990 the Forest Service approved an amended land and resource management plan (the "Plan"), and issued a final supplement to the FEIS ("SEIS"). A selected land management alternative based on the Plan and the SEIS was selected in a Record of Decision ("ROD") dated March, 1990. Some of the plaintiffs filed an administrative appeal to the Forest Service Chief regarding the Plan and SEIS. The Forest Service Chief upheld both the Plan and SEIS in an appeal decision dated April 14, 1991.

In 1990 the Forest Service released a final EIS analyzing vegetation management alternatives for the Ouachita, Ozark, and St. Francis National Forests ("VMFEIS") and selected a vegetation management program pursuant to a record of decision ("VMROD"). The VMROD amends the Plan's approach to herbicide use. Some plaintiffs filed an administrative appeal of the VMFEIS and the VMROD to the Forest Service Chief. The Forest Service Chief upheld the VMFEIS and VMROD in an appeal decision dated April 16, 1991.

II.

Judicial review in this case is premised on the deferential "arbitrary and capricious" standard of the Administrative Procedure Act. See 5 U.S.C. §§ 706(2)(A) and 706(2)(C).¹ In reviewing agency actions under this statute, the court must hew to several well-established limitations. First, the agency's actions are presumed to be lawful and correct. Second, the agency's conclusions can be overturned only if arbitrary and capricious, giving due deference to the agency's expertise and judgment. Third, the agency's legal interpretations are controlling if they are reasonable with regard to statutes, and not plainly erroneous with regard to the agency's own regulations. See Sierra Club v. Robertson, 784 F.Supp. 593, 604 (W.D.Ark.1991). Plaintiffs bear the burden on all issues in this case: They must show that the agency's actions are arbitrary, capricious, or contrary to law, or their claims must fail. Defendants are entitled to judgment if plaintiffs fail to make a sufficient showing on an essential element of their case with respect to which they have the burden of proof. Lujan v. National Wildlife Federation, 497 U.S. 871, 883-84, 110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990). Absent proof of arbitrary action, the court must assume that the agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976).

III.

A.

Plaintiffs argue that the agency violated a NFMA provision requiring an "integrated plan" by issuing the Plan and VMROD as separate documents. Pl. SJBr. at 1-4.² NFMA mandates that plans must "form one integrated plan for each unit of the National Forest System, incorporating in one document or one set of documents ... all of the features required by this section." 16 U.S.C. § 1604(f)(1). The court finds, based on the clear language of the statute, that the Plan and VMROD together constitute a "set" for the purposes of 16 U.S.C. § 1604(f)(1).

Plaintiffs similarly argue that the Plan and VMROD are "segmented," instead of being included in a single EIS because "proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement." 40 C.F.R. § 1502.4(a); see Pl.SJBr. at 5-11; Pl.Resp.Br. at 17-18. The Supreme Court has concluded, however, that an agency may address separate courses of action in separate EISes, and such a choice may not be disturbed unless it is arbitrary. Kleppe v. Sierra Club, 427 U.S. at 412-14, 96 S.Ct. at 2731-32. Plaintiffs' brief does not state with any clarity why the agency's choice was arbitrary, and this claim must therefore fail. See id. at 412, 96 S.Ct. at 2731. The agency prepared two EISes which each addressed a different action. This is a reasonable choice because the Plan is a multi-resource management plan, while the VMROD concerns only vegetation management. The court will not disturb the agency's decision to create separate documents.

B.

Plaintiffs argue that the agency has declined to comply with its duty to promulgate certain regulations pursuant to NFMA. Pl.Resp.Br. at 11-12. NFMA requires the Forest Service to adopt regulations specifying guidelines which "insure that timber will be harvested from National Forest System lands only where ... protection is provided" for bodies of water and shorelines "from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment," where harvests are likely to contaminate water conditions or destroy fish habitat. See 16 U.S.C. § 1604(g)(3)(E)(iii). Plaintiffs contend that the agency has passed no implementing regulations for this subsection of the statute. Pl.SJBr. at 12. Plaintiffs are incorrect. 36 C.F.R. § 219.27(e) provides: "No management practices causing detrimental changes in water temperature or chemical composition, blockages of water courses, or deposits of sediment shall be permitted within these areas which seriously and adversely affect water conditions or fish habitat." (The phrase "management practice" must include timber cutting because it is broadly defined as a "specific activity, measure, course of action, or treatment," see 36 C.F.R. § 219.3.)³

Plaintiffs contend that the timber harvesting method must be chosen at the plan level, and that the agency's method of choosing harvesting techniques site-by-site is therefore unlawful. Pl.Resp.Br. at 1-2. Plaintiffs base this argument on their interpretation of 16 U.S.C. § 1604(g)(3)(F)(i), which requires the Forest Service to create regulations specifying guidelines for...