Sierra Club v. US Forest Service, Civ. A. No. 92-5101.

• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
• Citation: 878 F. Supp. 1295
• Docket Number: Civ. A. No. 92-5101.
• Parties: The SIERRA CLUB, A Non-Profit Corporation; and Native Ecosystems Council, A Non-Profit Montana Corporation, Plaintiffs, v. UNITED STATES FOREST SERVICE, United States Department of Agriculture, Roberta Moltzen, Forest Supervisor, Black Hills National Forest, Tom L. Thompson, Acting Regional Forester, Region Two, and F. Dale Robertson, Chief of the United States Department of Agriculture, Defendants, Black Hills Forest Resource Association, Intervenor.
• Decision Date: 28 October 1993

878 F. Supp. 1295

The SIERRA CLUB, A Non-Profit Corporation; and Native Ecosystems Council, A Non-Profit Montana Corporation, Plaintiffs, v. UNITED STATES FOREST SERVICE, United States Department of Agriculture, Roberta Moltzen, Forest Supervisor, Black Hills National Forest, Tom L. Thompson, Acting Regional Forester, Region Two, and F. Dale Robertson, Chief of the United States Department of Agriculture, Defendants, Black Hills Forest Resource Association, Intervenor.

Civ. A. No. 92-5101.

United States District Court, D. South Dakota, Western Division.

October 28, 1993.

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James F. Margadant, Sieler & Trimble, Rapid City, SD, Jack R. Tuholske, Missoula, MT, for The Sierra Club, Native Ecosystems Council.

Robert A. Mandel, U.S. Atty's. Office, Rapid City, SD, for U.S. Forest Service, Dept. of Agriculture, Roberta Moltzen, Tom L. Thompson, F. Dale Robertson.

Gary R. Richards, Richards, Hood & Brady, P.C., Spearfish, SD, for Black Hills Forest Resources Ass'n.

MEMORANDUM OPINION AND ORDER

BATTEY, Chief Judge.

PROCEDURAL HISTORY

Sierra Club and Native Ecosystems, Inc. (plaintiffs) in this case seek judicial review of a decision by the defendants to allow two timber sales in a portion of the Black Hills National Forest. Pending before the Court are cross motions for summary judgment by plaintiffs, defendants, and intervenor.

FACTS

The Black Hills National Forest consists of 1,235,780 acres, mostly in western South Dakota, but also extending into a portion of eastern Wyoming. Tr. Vol. IX, I-1, I-2. The Victoria Planning Area is part of the Black Hills National Forest and consists of 15,372 acres of national forest land. Tr. Vol. I, 79. Victoria is located east and southeast of Pactola Reservoir, north of Sheridan Lake, and west and southwest of Rapid City, South Dakota. Tr. Vol. I, 80. The area is bounded on the north by Rapid Creek and by a ridge south of South Dakota Highway 44, on the west by South Dakota Highway 385, on the south by Sheridan Lake Road, and on the east by a ridge running north to south from Tomaha Point along the ridge east of the Victoria drainage to Sheridan Lake Road. Tr. Vol. I, 79-80.

In 1990, after a survey of the Victoria Area revealed a drastic absence of vegetative diversity, the Forest Supervisor for the Black Hills National Forest, Roberta Moltzen, ordered an Environmental Assessment (EA) prepared and then issued a Decision Notice and Finding of No Significant Impact (FONSI) as to proposed timber sales in Victoria. This decision of the Forest Supervisor was appealed within the agency by plaintiff Sierra Club. One of the issues raised by Sierra Club in the 1990 administrative appeal was that the EA was defective under the National Environmental Policy Act (NEPA) because the EA considered an inadequate range of alternative actions. The appeal resulted in the Forest Supervisor withdrawing her decision and ordering a new EA in which she attempted to address the concerns of Sierra Club.

After conducting another EA, the Forest Supervisor issued a second Decision Notice and FONSI in January 1992. The 1992 Decision Notice adopted Alternative # 4 as proposed in the EA, with minor modifications. Tr. Vol. I, 67. The decision provided for two timber sales to take place in Victoria, the Tamarack Timber Sale, and the Sisters Timber Sale. Together, the decision provided for the following actions:

(1) Timber harvest on 3,209 acres (21 percent of the Victoria Area), yielding approximately 10.1 million board feet of sawlogs beginning in 1992 in Tamarack and 1993 in Sisters. This figure was a reduction of 78 acres from that recommended by Alternative # 4 for the Sisters Timber Sale in order to create cover for big game. Also, the decision provided for patch clearcutting of 10 acres in mature sawtimber to create forage requirements for big game.

(2) After timber harvest, 2,858 acres would be subject to precommercial thinning. This figure was reduced by 187 acres from that recommended by Alternative # 4 to create cover for big game. The figure also included an additional 155 acres of precommercial thinning in the Prairie Creek cable unit.

(3) After timber harvest and thinning, brush/slash piling, brush pile burning/disposal, and erosion control work would be pursued on some of the acres.

(4) Aspen cutting and release would take place on about 20 acres.

(5) About 3.4 miles of new road would be constructed. These roads would be closed to the public after the timber harvest from the area is completed.

(4) About 9.8 miles of road would be reconstructed, 8.3 miles of road would be obliterated, and about 50 miles of road would be maintained.

(5) Pine trees encroaching on meadows on 789 acres would be removed.

Tr. Vol. I, 67. In addition to the foregoing, the decision also provided for many mitigation measures designed to lessen the environmental impact of the timber sales in Victoria. Some of those mitigation measures included the following.

(1) Local roads and roads not needed for access to private land within the management prescription area 5B would be closed from January 1 to May 1.

(2) In the Sisters sale area, logging would be limited to one unit at a time between January 1 and May 1 and all roads not necessary to harvest would be closed from January 1 to May 1.

(3) Timber harvest in Sisters would be limited to 3 to 4 years.

(4) All newly constructed roads would be closed to the public.

(5) Any active raptor nesting sites found during the timber sales would be protected.

(6) If any active goshawk nest is found, it would be given a minimum of 20 to 30 acres as a buffer zone where no treatment would take place.

(7) If any critical habitat of any endangered, threatened, or sensitive species is found, it would be protected as would the species themselves.

(8) All snags which are not safety hazards would be left standing. In addition, a minimum of 10 live trees per acre would be left standing for snag recruitment, if possible in clumps around existing snags and away from access by firewood gatherers. Areas that do not have sufficient down logs or untreated slash piles will have such conditions created.

(9) Snags would be monitored as the timber sales progress and 10 years into the future to ensure that snag numbers remain adequate.

Tr. Vol. I, 97-99.

After the January 1992 Decision Notice and FONSI was issued by the Forest Supervisor, the plaintiffs filed another administrative appeal. They did not raise the issue of the adequacy of alternatives considered in the second EA. The Acting Regional Forester affirmed the Forest Supervisor's decision. Tr. Vol. IV, 16. Review of the decision at a higher administrative level was declined, thus making the Acting Regional Forester's decision the final agency decision. Shortly thereafter, plaintiffs filed their complaint in this Court seeking judicial review of the agency's decision pursuant to the Administrative Procedures Act, 5 U.S.C. § 706(a). The plaintiffs allege that the decision by the agency violates various provisions of NEPA, 42 U.S.C. § 4332 et seq., and of the National Forest Management Act, 16 U.S.C. § 1604 et seq.

DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can "show that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458, 488 (1962). In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-90, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.

In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253-55, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Recently, the Supreme Court noted that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). The nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356, and "where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Id.

The trilogy of Celotex, Anderson, and Matsushita provide the Court with a methodology in analyzing defendants' motion. Under this trilogy, it is incumbent upon each party, based upon the showing set forth by the other parties in their motions, to establish significant probative evidence to prevent summary judgment. See Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F.2d 976, 979 (8th Cir.1991).

B. Standing

Defendants argue that plaintiffs lack standing to challenge the Forest Service timber sales in this case. Some standing requirements are merely prudential, while others are jurisdictional, being tied to the case or controversy requirement in Article III of the United States Constitution. Lujan...