Sierra Club v. Robertson

• Decision Date: 27 November 1991
• Docket Number: Civ. No. 90-2150.
• Parties: SIERRA CLUB, Jerry Williams, Defenders of the Ouachita Forest, Sherry Balkenhol, Bill Greer, Stan Heard, Plaintiffs, v. F. Dale ROBERTSON, in his official capacity as Chief, U.S.D.A. Forest Service, John E. Alcock, in his official capacity as Regional Forester, Southern Region, U.S.D.A. Forest Service, John M. Curran, in his official capacity as Supervisor, Ouachita National Forest, Larry Theivagt, in his official capacity as Mena District Ranger, U.S.D.A. Forest Service, George Landrum, in his official capacity as Poteau District Ranger, U.S.D.A. Forest Service, Paul Fuller, in his official capacity as Tiak District Ranger, U.S.D.A. Forest Service, Don Monk, in his official capacity as Oden District Ranger, U.S.D.A. Forest Service, John Archer, in his official capacity as Jessieville District Ranger, U.S.D.A. Forest Service, James Watson, in his official capacity as Caddo District Ranger, U.S.D.A. Forest Service, Robert Raines, in his official capacity as Womble District Ranger, U.S.D.A. Forest Service, Douglas Webb, in his official capacity as Cold Springs District Ranger, U.S.D.A. Forest Service, Eugene Hayes, in his official capacity as Fourche District Ranger, U.S.D.A. Forest Service, Defendants, Arkansas Forestry Association, Ouachita National Forest Timber Purchasers Group, and Region 8 Forest Service Timber Purchasers Council, Intervenors.
• Court: U.S. District Court — Western District of Arkansas

784 F. Supp. 593

SIERRA CLUB, Jerry Williams, Defenders of the Ouachita Forest, Sherry Balkenhol, Bill Greer, Stan Heard, Plaintiffs, v. F. Dale ROBERTSON, in his official capacity as Chief, U.S.D.A. Forest Service, John E. Alcock, in his official capacity as Regional Forester, Southern Region, U.S.D.A. Forest Service, John M. Curran, in his official capacity as Supervisor, Ouachita National Forest, Larry Theivagt, in his official capacity as Mena District Ranger, U.S.D.A. Forest Service, George Landrum, in his official capacity as Poteau District Ranger, U.S.D.A. Forest Service, Paul Fuller, in his official capacity as Tiak District Ranger, U.S.D.A. Forest Service, Don Monk, in his official capacity as Oden District Ranger, U.S.D.A. Forest Service, John Archer, in his official capacity as Jessieville District Ranger, U.S.D.A. Forest Service, James Watson, in his official capacity as Caddo District Ranger, U.S.D.A. Forest Service, Robert Raines, in his official capacity as Womble District Ranger, U.S.D.A. Forest Service, Douglas Webb, in his official capacity as Cold Springs District Ranger, U.S.D.A. Forest Service, Eugene Hayes, in his official capacity as Fourche District Ranger, U.S.D.A. Forest Service, Defendants, Arkansas Forestry Association, Ouachita National Forest Timber Purchasers Group, and Region 8 Forest Service Timber Purchasers Council, Intervenors.

Civ. No. 90-2150.

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

November 27, 1991.

COPYRIGHT MATERIAL OMITTED

Mary M. Rawlins, Mena, Ark., for plaintiffs.

J. Michael Fitzhugh, U.S. Atty., and Charles E. Smith, Asst. U.S. Atty., Fort Smith, Ark., and Rebecca A. Donnellan, Environmental and Natural Resources Div., Washington, D.C., for defendants.

Searcy W. Harrell, Jr., Roberts, Harrell & Lindsey, Camden, Ark., Thomas Lundquist, Crowell & Moring, Washington, D.C., for timber intervenors.

MEMORANDUM OPINION

MORRIS SHEPPARD ARNOLD, District Judge.

The Sierra Club and others brought suit to enjoin timber sales by the Forest Service in several compartments of the Ouachita National Forest.¹ Plaintiffs asked for a preliminary injunction to stop the sales and enjoin the timber management techniques contemplated as part of these sales. For the reasons explained below, plaintiffs' motion will be denied.

I.

A.

Intervenor defendants filed a motion for summary judgment premised on plaintiffs' failure timely to appeal the timber decision involving Oden compartment 1030 ("Oden"). In the opinion of this court, plaintiffs' failure to appeal the Oden decision in 1988 must bring to an end the action concerning Oden, for plaintiffs have failed to preserve the right to contest the Oden decision on the merits in this court.

Oden comprises 1,223 acres of National Forest land, 40 acres of which are slated for cutting. This plot of land has been the subject of much study and dispute. In 1988 the Forest Service released a Decision Notice which concluded that harvesting the trees in Oden would be consistent with the 1986 Forest Plan, the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 ("NEPA"), and the National Forest Management Act, 16 U.S.C. §§ 1600-1614 ("NFMA"). None of plaintiffs filed a timely administrative appeal of the 1988 Decision Notice. After the new Amended Forest Plan became controlling in 1990, the Forest Service released an Environmental Assessment ("EA") Supplement in 1991. The Supplement concluded that the harvest was consistent with the Amended Plan and NFMA requirements, and that no Environmental Impact Statement specific to Oden was required.

The matter of the Oden appeal, or lack thereof, has come before the court once before, although in a slightly different posture. In a prior motion, plaintiffs sought a preliminary injunction against the Forest Service alleging that plaintiffs had been improperly denied the right to an administrative appeal, and sought to enjoin the Oden and Choctaw timber sales until an administrative appeal could be perfected. The court found that plaintiffs were provided with copies of the Decision Notices and had 45 days in which to appeal, but that no administrative appeal was taken from the original Oden timber sale decision. Because only decisions are appealable, see 36 C.F.R. § 217.3, the court also found that the Forest Service's issuance of the Supplement in 1991 was not appealable because it was not a decision. The court therefore concluded that plaintiffs had not been denied an administrative appeal regarding, in particular, the Oden timber sale. See generally this court's Order of July 3, 1991.

B.

"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.... The doctrine provides `that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The Eighth Circuit has applied the exhaustion doctrine very strictly, denying relief where plaintiffs fail to perfect or even seek an administrative appeal. See, e.g., McAlister v. Secretary of the Department of Health and Human Services, 900 F.2d 157, 158 (8th Cir.1990); Watson v. Arkansas National Guard, 886 F.2d 1004, 1008 (8th Cir.1989); Madsen v. Department of Agriculture, 866 F.2d 1035, 1037 (8th Cir.1989). Needless to say, in light of plaintiffs' lack of timely appeal in this case, a strict application of the exhaustion doctrine would bring a swift halt to the plaintiffs' claims as to Oden.

The Supreme Court, however, has cautioned that the exhaustion doctrine is not to be applied blindly or inflexibly. McGee v. United States, 402 U.S. 479, 483, 91 S.Ct. 1565, 1568, 29 L.Ed.2d 47 (1971); McKart, 395 U.S. at 200-01, 89 S.Ct. at 1666. The Court has noted the "harsh impact" of the doctrine when it bars judicial review of a litigant's claim. McGee, 402 U.S. at 484, 91 S.Ct. at 1568. A trial court must therefore consider whether "the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." West v. Bergland, 611 F.2d 710, 715 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980). The court should not mechanically recite the broad interests usually served by the doctrine, but must assess the weight of the government's interest by "a discrete analysis of the particular default in question." McGee, 402 U.S. at 485, 91 S.Ct. at 1569. In undertaking this discrete analysis, the court should weigh several considerations:

McKart and McGee teach that several factors must be weighed, including (1) whether allowing similarly situated litigants to bypass the administrative avenue would seriously impair the agency's ability to perform its function of developing facts and exercising discretion in the first instance; (2) whether allowing judicial review would encourage others to flout the administrative scheme designed by Congress; and (3) whether the circumstances require that the agency be given the first chance to correct its own errors, and to obviate, perhaps, the need for judicial review.

Madsen, 866 F.2d at 1039 (Arnold, J., concurring in part, dissenting in part).

Here, the considerations just recited counsel dismissal of plaintiffs' claims. The Forest Service has been deprived of its administrative interest in developing facts and exercising discretion in this case. The agency should have been allowed to perform functions within its special competence, including specialized fact-finding, interpretation of disputed technical subject matter, and resolution of disputes concerning the agency's regulations. See West, 611 F.2d at 715. Plaintiffs claim violations of NEPA, NFMA, and Forest Service Regulations involving, e.g., silvicultural inventory requirements, floodplains and wetlands definitions, application of the concept of environmental "diversity," statistical sampling techniques, and use of a computer program called COMPPATS. Hence, the matters before the court involve application and interpretation of technical concepts and complex regulations most appropriately left to the expertise of the Forest Service, at least in the first instance.

Plaintiffs' failure to exhaust denied the agency an opportunity to make a factual record. See McGee, 402 U.S. at 484, 91 S.Ct. at 1568. "Permitting the agency to perform its `trial court' function not only serves interests in administrative autonomy and efficiency but also generally assists ultimate judicial review, if any should be necessary." West, 611 F.2d at 716. The failure to submit these matters to the agency first has made this litigation measurably more difficult, unfocused, costly, and lengthy. The agency's compilation of a record would have made subsequent appeals, if any, more efficient because of the agency's expertise in considering technical questions.

The Forest Service, moreover, could have benefitted from plaintiffs' appeal, had one been filed, because it would have had plaintiffs' comments on the agency's actions at a much earlier stage. The agency would have had a chance to consider plaintiffs' concerns and possibly adopt plaintiffs' suggestions, thus obviating the necessity of review. Challenging the agency action in the district court frustrates agency process because the opportunity for agency action has by then already passed. See id. Allowing judicial review in this instance, moreover, might encourage others to flout the administrative scheme, because granting an exception here might lead future plaintiffs to bypass the agency and make their case directly to the district court. Plaintiffs should not be permitted to go over the Forest Service's head and avoid making their...