Sierra Club v. Thomas, 94-3407

• Decision Date: 07 April 1997
• Docket Number: No. 94-3407,94-3407
• Citation: 105 F.3d 248
• Parties: , 65 USLW 2497, 27 Envtl. L. Rep. 20,501 The SIERRA CLUB, et al., Plaintiffs-Appellants, v. Jack Ward THOMAS, et al., Defendants-Appellees, Ohio Forestry Association, Inc., Intervening Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 248

105 F.3d 248

44 ERC 1029, 65 USLW 2497, 27 Envtl.

L. Rep. 20,501

The SIERRA CLUB, et al., Plaintiffs-Appellants, v. Jack Ward THOMAS, et al., Defendants-Appellees Ohio Forestry Association, Inc., Intervening Defendant-Appellee.

No. 94-3407.

United States Court of Appeals Sixth Circuit.

Argued Oct. 12, 1995.

Decided Jan. 21, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied April 7, 1997.

Frederick M. Gittes (argued and briefed), Spater, Gittes, Schulte & Coleman, Columbus, OH, for Plaintiffs-Appellants.

William B.Lazarus and Elizabeth Ann Peterson (argued and briefed), U.S. Department of Justice, Land and Natural Resources Division, Washington, DC, for Defendants-Appellees.

James E. Melle (argued) and Robert J. Walter, Buckley, King & Bluso, Columbus, OH, for Intervenor-Appellee.

Before: MARTIN, Chief Judge; BATCHELDER, Circuit Judge; COOK, District Judge. ^*

MARTIN, C. J., delivered the opinion of the court, in which COOK, D. J., joined. BATCHELDER, J. (p. 252), delivered a separate concurring opinion.

BOYCE F. MARTIN, JR., Chief Judge.

The Sierra Club and Citizens Council on Conservation and Environmental Control appeal the district court's order granting summary judgment to Jack Ward Thomas, Chief of the United States Forest Service, and officials of the United States Forest Service, pursuant to the district court's review of the Land Resource Management Plan for the Wayne National Forest. For the reasons described below, we reverse and remand this matter to the district court for further proceedings consistent with this opinion.

In 1988, the regional forester for the Eastern Division of the United States Forest Service issued a decision, pursuant to the National Forest Management Act, adopting a ten-year plan for Ohio's Wayne National Forest. The plan designated 126,107 acres of the Wayne from which timber could be removed or cut. During the ten-year life of the plan, 7.5 million board feet of timber could be cut per year. The plan designated that eighty percent of all timbering techniques would be "even-aged" management, a harvest technique aimed at creating a regeneration of trees which are essentially the same age. In almost all cases, the even-aged management contemplated clearcutting of the timber. Clearcutting involves the removal of all trees within areas ranging in size from fifteen to thirty acres, and is thus a very sensitive public issue.

The Sierra Club appealed the regional forester's decision to the chief of the Forest Service pursuant to the applicable regulations. In 1990, the chief of the Forest Service denied the Sierra Club's appeal and affirmed the plan. Pursuant to final agency action, the Sierra Club filed this action in the district court. Appealing the district court's order granting summary judgment to the Forest Service, the Sierra Club argues that the Forest Service made arbitrary assumptions in the Wayne planning process that biased the plan toward timbering.

The National Forest Management Act was enacted as a direct result of congressional concern for Forest Service clearcutting practices and the dominant role timber production has historically played in Forest Service policies. Congress was concerned that, if left to its own essentially unbridled devices, the Forest Service would manage the national forests as mere monocultural "tree farms." Procedurally, the Act requires the Forest Service to develop Land and Resource Management Plans for the national forests. This formal planning process was designed to curtail agency discretion and to ensure forest preservation and productivity. Substantively, the Act imposes extensive limitations on timber harvesting by restricting the use of clearcutting to situations in which clearcutting is the optimum method for harvesting.

First, we address the threshold issue of justiciability. The Forest Service claims that the Sierra Club lacks standing. To establish constitutional standing, a plaintiff first must first suffer an injury-in-fact that is (1) concrete and particularized, and (2) actual or imminent, not conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Second, the injury must be fairly traceable to the defendant's conduct. Id. at 560-61, 112 S.Ct. at 2136. Third, the injury must be redressable by the court. Id. at 561, 112 S.Ct. at 2136. In cases involving Land Resource Management Plans, the most controverted standing issue is whether the injury is imminent.

A plaintiff who seeks review of a Land Resource Management Plan must show that it will suffer personal harm as a result of the plan. We have long recognized that injury is not confined to economic injury; aesthetic and environmental injuries can be embraced by this definition of personal harm. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). Land Resource Management Plans represent significant and concrete decisions that play a critical role in future Forest Service actions. "To the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1516 (9th Cir.1992). If the Sierra Club was allowed to challenge the Forest Service plan only at the site-specific stage, then the meaningful citizen participation contemplated by the National Forest Management Act "would forever escape review." Id.

The district court concluded that the Sierra Club's challenge presented a ripe controversy. Closely related to the issue of standing, the ripeness doctrine exists to keep the judiciary from "entangling [itself] in abstract disagreements over administrative policies" by preventing premature adjudication. Sierra Club v. Marita, 46 F.3d 606, 614 (7th Cir.1995)(quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). The Forest Service maintains that disputes over forest planning are not ripe for review until a site-specific action occurs. We agree with the district court. Plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan.

Because we find that the Sierra Club's case is justiciable, we turn now to the merits. We give no particular deference to the district court and directly review the administrative record as if we were the first reviewing court. Schuck v. Frank, 27 F.3d 194, 197 (6th Cir.1994). While it is generally accepted that federal agencies are entitled to a presumption of good faith and regularity in arriving at their decisions, that presumption is not irrebuttable. We would be abdicating our Constitutional role were we simply to "rubber stamp" this complex agency decision rather than ensuring that such decision is in accord with clear congressional mandates. It is our role to see that important legislative purposes are not lost or misdirected in the vast hallways of the federal bureaucracy. Specifically, we must decide whether the Forest Service took a hard look at the relevant factors and reached a decision that was neither arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.

The Sierra Club contends that the even-aged logging agenda is illegal in that the Forest Service has not complied with the constraints on its choice of even-aged management techniques contained in the National Forest Management Act. In reviewing this record, we have carefully examined the conclusions drawn by the Forest Service to test for internal consistency and reasonableness. Although the Forest Service has the benefit of the presumption of good faith and regularity in agency action, we have attempted to ascertain whether the plan has been improperly skewed. We...