Sierra Club v. U.S. Forest Service

• Decision Date: 24 November 2008
• Docket Number: No. 1:03-cv-1230-ODE.,1:03-cv-1230-ODE.
• Citation: 593 F.Supp.2d 1306
• Parties: SIERRA CLUB, The Chattooga Conservancy, Biodiversity Legal Foundation, Florida Biodiversity Project, Forest Conservation Council, Georgia Forest Watch, Ouachita Watch League, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, Wilderness Society, and Jerry Williams, Plaintiffs v. UNITED STATES FOREST SERVICE; Charles L. Myers, in his capacity as Regional Forester of the Southern Region of the U.S. Forest Service; Dale Bosworth, in his official capacity as Chief of the U.S. Forest Service; and Ann Veneman, in her official capacity as Secretary of the U.S. Department of Agriculture, Defendants.
• Court: U.S. District Court — Northern District of Georgia

593 F.Supp.2d 1306

SIERRA CLUB, The Chattooga Conservancy, Biodiversity Legal Foundation, Florida Biodiversity Project, Forest Conservation Council, Georgia Forest Watch, Ouachita Watch League, Southern Appalachian Biodiversity Project, Wild Alabama, Wild South, Wilderness Society, and Jerry Williams, Plaintiffs v. UNITED STATES FOREST SERVICE; Charles L. Myers, in his capacity as Regional Forester of the Southern Region of the U.S. Forest Service; Dale Bosworth, in his official capacity as Chief of the U.S. Forest Service; and Ann Veneman, in her official capacity as Secretary of the U.S. Department of Agriculture, Defendants.

Civil Action No. 1:03-cv-1230-ODE.

United States District Court, N.D. Georgia, Atlanta Division.

November 24, 2008.

COPYRIGHT MATERIAL OMITTED

Eric Eugene Huber, Sierra Club, Boulder, CO, Donald D. Stack, Stack & Associates, Atlanta, GA, Jonathan Lee Schwartz, Atlanta, GA, for Plaintiffs.

Pamela S. West, U.S. Dept. of Justice, General Litigation Section, Washington, DC, Robert David Powell, Asst. U.S. Attorney, Northern District of Georgia, Atlanta, GA, for Defendants.

ORDER

ORINDA D. EVANS, District Judge.

This civil suit is before the Court for determination of remedies for the Defendants' failure to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, ("NEPA") when preparing (1) Supplemental Environment Impact Statements ("SEISs") which supplemented certain Vegetation Management Environmental Impact Statements ("VMEISs") and (2) 2002 forest plan amendments for forest plans in Region Eight of the U.S. Forest Service. The environmental analysis in the SEISs also served as the environmental analysis for the 2002 forest plan amendments. No separate NEPA analysis was done for the forest plan amendments. A single Record of Decision ("ROD") approved and adopted each of the three subregional SEISs and the respective subregional 2002 forest plan amendments. Therefore, the deficient environmental analysis in each SEIS required that the ROD be vacated and that the 2002 forest plan amendments be set aside. These determinations were made in an Order entered February 22, 2008, which granted in part and denied in part Plaintiffs' remaining¹ claims. 535 F.Supp.2d 1268 (N.D.Ga.2008). Specifically, the Court granted Plaintiffs' motion for summary judgment as to Claim II, and denied Defendants' cross motion; the Court granted Defendants' motion for summary judgment as to Claims I and III and denied Plaintiffs' corresponding cross motion. Therefore, the remedies addressed herein pertain only to Claim II.

Claim II involves one part of Vegetation Management Environmental Impact Statements ("VMEISs") which had been formulated in 1989-1990 in each of the three subregions of Region Eight.² These VMEISs were designed to study the environmental effects which could flow from the use of certain "vegetation management methods" and to recommend options for using (or not using) the various methods given the advantages or disadvantages of each method.³ The subject "vegetation management methods" were prescribed fire, mechanical methods, manual methods, herbicides, and biological methods. Each VMEIS recommended (as a "preferred alternative") a certain combination of methods for its subregion. Each contained a large number of "mitigation measures" which would mitigate adverse environmental effects from the use of each of the five methods. One mitigation method common to all three VMEISs and all five vegetation management methods was mitigation measure (2), which was the subject of the Court's February 22, 2008 Order and indeed the central focus of this litigation. This mitigation measure concerned the requirement of a biological evaluation to determine whether a proposed project which used one or more vegetation management methods would affect PETS species known to exist or possibly existing in and around the proposed project area. No project could proceed without such a biological evaluation. Mitigation measure (2) dealt with how to determine which PETS had to be the subject of a particular biological evaluation. This was needed because designations of proposed endangered and threatened species are nationwide. 16 U.S.C. § 1538; 50 C.F.R. §§ 17.21; 17.31. Sensitive species designations are regionwide for the various regions of the U.S. Forest Service. However, all PETS (including sensitive species) are subject to geographic/locational limitations based on their range and their unique habitat requirements.

The relationship between Region Eight's VMEISs/SEISs on the one hand and the forest plans/forest plan amendments on the other hand is complex. Under the National Forest Management Act ("NFMA"), a project must be consistent with the relevant forest plan. 16 U.S.C. § 1604(i). The VMEISs are separate documents from the forest plans. They are not environmental impact statements for forest plans, which have their own environmental impact statements. They do not describe or authorize individual forest projects.⁴ Rather, the VMEISs are programatic environmental impact statements. Unlike an environmental impact statement for a particular, already defined project, the VMEISs studied the environmental effects which could arise in future, as yet undefined forest projects and established a framework for dealing with those environmental issues. The 1989-1990 ROD for each VMEIS approved and adopted the preferred alternative for vegetation management and also adopted most of the mitigation methods identified in the VMEIS including the original version of mitigation measure (2).⁵ In essence, the RODS for the VMEISs approved the use of certain vegetation management methods for future projects conditioned upon compliance with the mitigation measures.⁶ The decisions made in the RODs for the VMEISs (including the decision to adopt the original version of mitigation measure (2)) were incorporated into all forest plans in Region Eight in 1989-1990. This was done by amendments to the individual forest plans. Most of the 1989-90 forest plan amendments were physically attached to the RODs for the VMEISs.

In 2000 a second version of mitigation measure (2) was substituted in three Region Eight forest plans by amending those plans. These amendments were for the Chattahoochee-Oconee Forest Plan, the Forest Plan for National Forests in Alabama, and the Ozark-St. Francis/Ouachita Forest Plan. The environmental analysis was contained in environmental assessments. There was no corresponding revision of the VMEISs in 2000. The VMEISs were never amended to substitute the second version of mitigation measure (2). The 2002 forest plan amendments were impressed upon whatever forest plan versions existed throughout Region Eight in 2002, incorporating the 2002 SEISs' version of mitigation measure (2) into all plans. This was the third version of mitigation measure (2).

All forest plans must be revised⁷ at least every fifteen years. 16 U.S.C. § 1604(f)(5). Until 2005, the applicable regulations required each revision to be accompanied by an environmental impact statement, as opposed to the more modest environmental assessment which may in some cases accompany a forest plan amendment.⁸ The forest plans in Region Eight do not all come up for revision at the same time. There is no discernible pattern. A few plans have not been revised since before the 1989-1990 VMEISs were created,⁹ although through the plan amendments made in 1989-90 they contain the original version of mitigation measure (2). Some plans were revised during the early to mid 1990's. They may also contain the original version of mitigation measure (2).¹⁰ Two plans (Florida and Kisatchie) were revised in 1999. They contain a version of mitigation measure (2) which is similar to but not identical to the second version (the 2000 version). See Revised Land and Resource Management Plan, Kisatchie National Forest [AR 712 at 2-8, FW 009]. The ROD for the revised Kisatchie plan acknowledges the 1989 Coastal Plain/Piedmont VMEIS but notes the decision to alter the 1989 VMEIS's version of the mitigation measure (2) language in the revised plan. [AR 713 at R-5 and R-6]. The ROD for the revised Florida plan notes that it is modifying portions of the RODs for various regional documents, including the ROD for the 1989 Coastal Plain/Piedmont VMEIS which adopted the original version of mitigation measure (2). See Revised Land and Resource Management Plan for National Forests in Florida [AR 611 at 3-26]. The remaining Region Eight forest plans apparently were totally revised after 2002. All of the forest plans which contained the 2000 version of mitigation measure (2) have been superceded by new, revised plans. It is unclear whether the post-2002 revised plans contain any version of mitigation measure (2). Most of the post-2002 revised plans are not in the record. At least one of the post-2002 revised plan RODs acknowledges the 1989-1990 VMEIS and the 2002 SEIS as documents which were considered in preparing the revised plan. However, it does not state that they are authoritative or controlling. See, e.g., ROD for 2005 Revised Land and Resource Management Plan, Ouachita National Forest [AR 910 at 13].

The original version of mitigation measure (2) was the subject of Sierra Club v. Martin, 168 F.3d 1 (11th Cir.1999). That case involved a claim that two projects in the Chattahoochee-Oconee National Forests did not comply with the forest plan, which had incorporated the original version of mitigation measure (2) from the subregional VMEIS's ROD. The argument was that the projects were inconsistent with the forest plan and thus violated the NFMA, 16 U.S.C. § 1604(i), which requires that projects in a national forest be consistent with the requirements of the forest plan. The forest plan per the language of mitigation measure (2) said that the biological evaluation should consider "all available inventories [of PETS] and their habitat for the proposed treatment area"; "when...