Sierra Club v. Robertson, C2-92-249.

• Decision Date: 11 March 1994
• Docket Number: No. C2-92-249.,C2-92-249.
• Citation: 845 F. Supp. 485
• Parties: The SIERRA CLUB, et al., Plaintiffs, v. F. Dale ROBERTSON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

845 F. Supp. 485

The SIERRA CLUB, et al., Plaintiffs, v. F. Dale ROBERTSON, et al., Defendants.

No. C2-92-249.

United States District Court, S.D. Ohio, E.D.

March 11, 1994.

COPYRIGHT MATERIAL OMITTED

Frederick M. Gittes, Spater, Gittes, Schulte & Kolman, Columbus, OH, for plaintiffs.

Edmund A. Sargus, Jr., United States Atty., and James E. Rattan, Asst. U.S. Atty., Columbus, OH, Wells D. Burgess, Louise F. Milkman, Edward Boling, Trial Attys., U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC, for defendants; James A. Pfeil, Kathryn Tottenetti, Leslie M. Auriemmo, Office of the Gen. Counsel, Dept. of Agriculture, Washington, DC, of counsel.

OPINION AND ORDER

GRAHAM, District Judge.

The Sierra Club and Citizens Council on Conservation and Environmental Control ("Citizens Council"), plaintiffs herein, filed this action against Mike Espy, Secretary of Agriculture, and officials of the United States Forest Service.

Plaintiffs challenge the Land and Resource Management Plan ("the Plan") for the Wayne National Forest ("the Wayne") and the Final Environmental Impact Statement ("FEIS") for the Plan, alleging violations of the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600-1614, the Multiple-Use Sustained Yield Act ("MUSYA"), 16 U.S.C. § 528 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. This action is brought under the judicial review provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. This matter is now before the Court on the parties' cross-motions for summary judgment.

STANDARD OF REVIEW

Review of final agency action under NEPA and NFMA is governed by the APA, which directs a reviewing court to affirm final agency action unless that action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). The ultimate standard of review is a narrow one, and the court is not empowered to substitute its judgment for that of the agency, but instead it is to determine whether "the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 416, 91 S.Ct. at 824.

While the agency's decisions are entitled to a presumption of regularity, that presumption does not shield them from a thorough, probing review. Druid Hills Civic Ass'n v. Federal Highway Administration, 772 F.2d 700, 714 (11th Cir.1985). In reviewing NEPA compliance, the role of the court is to ensure that the agency has adequately considered and disclosed the environmental impacts of its actions and that its decision is not arbitrary or capricious. Communities, Inc. v. Busey, 956 F.2d 619, 623 (6th Cir. 1992) (quoting Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983)). Where a statute is ambiguous, review is limited to determining whether the agency's interpretation is based on a permissible construction of the statute, and does not extend to matters of policy. Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). An agency's interpretation of its own regulations is binding on the court "unless it is plainly erroneous or inconsistent with the regulation." United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977). Within the parameters of the applicable statutes and regulations, the management decision belongs to the agency, and should not be second-guessed by a court. Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 210 (5th Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 455, 58 L.Ed.2d 425 (1978).

BACKGROUND

The Wayne National Forest is located in the unglaciated Appalachian Plateau of southeastern Ohio, commonly referred to as Ohio's Hill Country. It is bordered on the south by the Ohio River and includes three noncontiguous units located in the counties of Athens, Gallia, Hocking, Jackson, Lawrence, Monroe, Morgan, Perry, Scioto, Vinton and Washington. The gross area within the forest purchase units is 832,147 acres, of which 21% or 177,701 acres are now actually owned by the National Forest Service. There are many tracts of privately owned land intermingled with the Forest Service lands.

The management of the national forests is entrusted to the United States Department of Agriculture Forest Service. The NFMA requires the Forest Service to develop long-term plans for the management of national forests. Under NFMA and its regulations, the development of a forest management plan proceeds through a series of steps which ensure public involvement at each stage of the planning process. See 36 C.F.R. § 219.6, § 219.10, § 219.12. The first step is to identify the issues that the plan should address. Once that assessment is completed, several alternative management plans are constructed and each is subjected to an analysis of costs, benefits and environmental impacts, in accordance with NFMA and NEPA. After reviewing the environmental impacts and the cost benefit analysis, the Regional Forester for the administrative region in which the forest is located selects the alternative that in his opinion will "provide for multiple use and sustained yield of goods and services from the National Forest System in a way that maximizes long term net public benefits in an environmentally sound manner." 36 C.F.R. § 219.1(a). The approved plan controls all activity within the forest for a ten-year to fifteen-year period.

The planning process for the Wayne began in 1981 and continued over a period of five years. In August, 1986, the Forest Service published the proposed Plan together with a draft environmental impact statement ("DEIS") and distributed them to the public for comment. On January 4, 1988, after analyzing over 1,500 written comments, the Forest Service adopted the final Plan accompanied by a record of decision ("ROD") and the FEIS.

Both plaintiffs participated extensively in the initial planning process and in the comment period following publication of the proposed Plan and the DEIS. Both plaintiffs appealed the decision to adopt the Plan. The Chief of the Forest Service issued decisions on November 14, 1990 and January 14, 1992 denying plaintiffs' appeals. Plaintiffs filed this action on March 18, 1992.

SELECTION OF SILVICULTURAL SYSTEMS AND TIMBER HARVEST METHODS

Under the Organic Act of 1897, a national forest may be established and administered only "to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States." 16 U.S.C. § 475. In 1960, Congress enacted the MUSYA, which directed the Secretary of Agriculture to develop and administer the resources of the national forests "for multiple use and sustained yield of the several products and services obtained therefrom" including "recreation, range, timber, watershed and wildlife and fish" with due consideration "to the relative values of the various resources" and in such a way that the "periodic output" of such resources be maintained "in perpetuity ... without impairment of the productivity of the land." 16 U.S.C. §§ 528, 529, 531. The principles of the MUSYA were expressly incorporated into the statutory and regulatory scheme of the NFMA. Under 16 U.S.C. § 1604(e)(1), the Secretary, in developing plans for the National Forest System, must assure that they

provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960 ... and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness; ....

Inasmuch as one of plaintiffs' major objections to the Plan is its provision for timbering, it is appropriate to note that the harvesting of timber is and always has been one of the purposes of the National Forest System. The record of this case indicates that the harvesting of timber is also an important forest management tool.

Silviculture is that phase of forestry that deals with the establishment, development, reproduction and care of forest trees. Webster's Third New International Dictionary Unabridged, 1981. A silvicultural system is a management process whereby forests are tended, harvested, and replaced, resulting in a forest of distinctive form. 36 C.F.R. § 219.3. Systems are classified according to the method of carrying out the fellings that remove the mature crop and provide for regeneration, and according to the type of forest thereby produced. Id. In managing forest lands, there are two systems available: even-aged and uneven-aged. Plan, Appendix, p. C-1. Even-aged management results in the creation of stands in which trees of essentially the same age grow together. DEIS, Appendix, p. E-7. Uneven-aged management seeks to maintain the growth of trees through a range of diameter or age classes. Id., p. E-28.

Within the even-aged system, there are three recognized harvest methods: clearcutting, shelterwood and seed tree. Plan, Appendix, p. C-1. With even-aged harvest methods, the intent is to maintain a mosaic of different-aged stands of manageable size of equal age. Id., p. C-3. The seed tree method involves harvesting all but a few well-distributed trees of the desired species to provide seed for natural regeneration. Id., p. C-4. Later, the seed trees themselves are harvested. In the shelterwood method, all trees are removed in a series of two or three cuts with the final cut being made after a sufficient amount of desirable reproduction has become established. Id. This method provides a partial cover which may benefit the growth of seedlings. The clearcut method involves the cutting of all trees,...