Southern Timber Purchasers Council v. Alcock, Civ. No. 1:89-cv-2741-ODE.

• Decision Date: 29 July 1991
• Docket Number: Civ. No. 1:89-cv-2741-ODE.
• Parties: SOUTHERN TIMBER PURCHASERS COUNCIL, Hankins Lumber Company, Inc., Hood Industries, Inc., and Hunt Plywood Company, Inc. v. John ALCOCK, in his official capacity as Regional Forester for Region 8 of the United States Forest Service, F. Dale Robertson, in his official capacity as Chief, of United States Forest Service, James W. Pulliam, Jr., in his official capacity as Regional Director of Region 4 of the United States Fish and Wildlife Service, and Manuel Lujan, in his official capacity as Secretary of the United States Department of the Interior.
• Court: U.S. District Court — Northern District of Georgia

779 F. Supp. 1353

SOUTHERN TIMBER PURCHASERS COUNCIL, Hankins Lumber Company, Inc., Hood Industries, Inc., and Hunt Plywood Company, Inc. v. John ALCOCK, in his official capacity as Regional Forester for Region 8 of the United States Forest Service, F. Dale Robertson, in his official capacity as Chief, of United States Forest Service, James W. Pulliam, Jr., in his official capacity as Regional Director of Region 4 of the United States Fish and Wildlife Service, and Manuel Lujan, in his official capacity as Secretary of the United States Department of the Interior.

Civ. No. 1:89-cv-2741-ODE.

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

July 29, 1991.

Alexander Stephens Clay, IV, Mary Lillian Walker, Kilpatrick & Cody, Atlanta, Ga., Steven P. Quarles, Thomas R. Lundquist, John A. Macleod, Crowell & Moring, Washington, D.C., for plaintiffs.

Daniel A. Caldwell, III, Asst. U.S. Atty., Atlanta, Ga., Jean Williams Mellor, U.S. Dept. of Justice, Environment & Natural Resources Div., Wildlife & Marine Resources Section, Ellen Athas Ferlo, General Litigation Section, Washington, D.C., for defendants.

Stephen Edmund O'Day, Smith, Gambrell & Russell and Stephen Thomas LaBriola, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, Ga., for movants Sierra Club and Wilderness Society.

David John White, Nat. Wildlife Federation, Atlanta, Ga., for movant Nat. Wildlife Federation.

ORDER

ORINDA D. EVANS, District Judge.

This action arising under the National Forest Management Act, 16 U.S.C. § 1604 et seq. ("the Forest Act") is before the court on the parties' cross-motions for summary judgment. Fed.R.Civ.P. 56.

This dispute arises from the actions of Defendants, officials of the United States Forest Service ("the Forest Service"), restricting timber cutting within ¾ of a mile of a colony site of red cockaded woodpeckers. The red cockaded woodpecker is considered an endangered species under the Endangered Species Act, 16 U.S.C. § 1531 et seq. See, 50 C.F.R. § 1711(h). Pursuant to the Forest Act and regulations promulgated thereunder, 36 C.F.R. § 219, the Forest Service arrived at a plan to manage the red cockaded woodpecker. 1985 Wildlife Habitat Management Handbook ("Woodpecker Handbook"). The Woodpecker Handbook was incorporated into the Land Resource Management Plan (discussed below) for Region 8. Plaintiffs (collectively "the Council") allege that sometime in the late 1980's, the Forest Service discontinued full implementation of the Woodpecker Handbook, and then, in response to threatened litigation from environmental groups, hastily adopted a new policy ("1989 Woodpecker policy"). The Forest Service contends that the 1989 Woodpecker policy was adopted in response to the failure of the policy embodied in the Woodpecker Handbook to prevent a severe decline in the numbers of the red cockaded woodpecker.

The change in the red cockaded woodpecker policy was first adopted by Regional Forester Alcock on March 27, 1989, after consultation with both environmental groups and Plaintiff Southern Timber Purchasers Council. (A.R. 31). The Regional Forester noted that it was not determined whether the new policy was consistent with the existing plan, but stated that the former would supersede the latter until the plan could be amended. The policy then went on to halt or modify timber cutting within ¾ of a mile of red cockaded woodpecker colonies and to suspend cutting under contracts already in existence.

The Council appealed this decision to the Deputy Chief of the Forest Service pursuant to regulations, 36 C.F.R. § 217. The Deputy Chief responded April 14, 1989, noting that the Regional Forester had adopted the interim policy without the formal prerequisites necessary to make it an appealable decision. He then remanded the issue to the Regional Forester with directions to comply with the procedures by conducting an environmental analysis and preparing the appropriate decisional document. He continued:

The decision document must include a reference to the consideration of compliance with the Endangered Species Act, the National Environmental Policy Act, and the National Forest Management Act in establishing this policy. The decision document will be subject to administrative appeal under 36 CFR Part 217.

* * * * * *

In addition to the above, the Regional Forester is directed to: inform the public through a Federal Register notice of the Regional Forester's intent to amend the Regional Guide and in the notice provide the public with an opportunity to comment on how the Forest Service will comply with the Endangered Species Act, the National Forest Management Act, and the National Environmental Policy Act.

(A.R. 29).

A biological evaluation of the proposed policy was made by the Forest Service's Endangered Species Program Manager on May 3, 1989. That evaluation found that the policy was "not likely to adversely affect the RCW." (A.R. 27). Notice of the Regional Forester's intent to implement the new policy was published in the Federal Register on May 5, 1989. (A.R. 23). The Fish and Wildlife Service reviewed the policy on June 15, 1989, and concurred with the previous biological evaluation. (A.R. 19). On June 26, 1989, the Regional Forester issued an Environmental Assessment, Findings of No Significant Impact and Decision Notice ("Decision Notice"). (A.R. 16).

The Decision Notice incorporated the biological evaluation and the Fish and Wildlife Service report. The first portion of the Decision Notice is the environmental assessment. This notes that the declining numbers of the red cockaded woodpecker necessitated action to ensure their survival.

The March 27 Policy was issued as a temporary measure of limited scope. It covers only cutting practices within ¾ mile of active and inactive RCW colonies in populations of less than 250 colonies. It applies only to existing, advertised and proposed sales until new direction is issued. The policy was intentionally created to be flexible in dealing with "on the ground" situations and new information so as to maximize the Forest Service's ability to quickly comply with ESA (Endangered Species Act and other laws.

(A.R. 16). The Regional Forester also emphasized that the effect of the policy was merely to protect the status quo.

The Policy is urgent and temporary. Moreover, it makes no irretrievable or irreversible commitment of resources. Insofar as this policy prevents certain payment units from being cut the environmental status quo continues. Options for future actions to promote recovery of the RCW remain open.

(A.R. 16).

The second portion of the Decision Notice determines that the new policy does not significantly affect the

human environment because it is limited in time and scope:

— it will continue only until new direction currently being formulated is completed:

— it addresses only cutting methods within ¾ mile of RCW colonies;

— relatively few areas are affected;

— it results in fewer trees being cut, hence maintaining the environmental status quo — where the status quo may be changed, further NEPA/NFMA/ESA analysis will be done at the project level; and

— it is necessary to protect the RCW as required by the Endangered Species Act.

(A.R. 16).

The third portion of the Decision Notice contains the decision itself. The Regional Forester decided that the March 27, 1989 policy would continue in effect and constituted an amendment to the Land Resource Management Plan for the region. He also noted the temporary and limited extent of the policy and reiterated that the amendments were not significant for purposes of compliance with the amendment procedures under the Forest Act. "This determination is based on the fact that this policy is limited to existing advertised and proposed sales for the limited period until new direction is issued." (A.R. 16).

The Council appealed the Decision Notice to the Deputy Chief of the Forest Service. The Deputy Chief affirmed the Regional Forester on October 25, 1989. In particular, the Deputy Chief determined that the Regional Forester's actions in the face of unstable and declining red cockaded woodpecker populations necessitated quick action to preserve the status quo while a future plan was worked out. Any other course, the Deputy Chief noted, could allow the populations to so decline as to foreclose future management options. The Deputy Chief also explicitly agreed that the new policy, because it is temporary and limited in scope, is not a significant amendment to the LRMP. (A.R. 1).

Subsequent to the affirmance by the Deputy Chief, the Council brought this suit to review the Forest Service's adoption of the 1989 Woodpecker policy.

Before describing the arguments of the parties, it is necessary to outline quickly the relevant procedural requirements under the Forest Act and its implementing regulations.

"National Forests, unlike the national parks, are not wholly dedicated to recreational and environmental values." Cronin v. United States Dept. of Agric., 919 F.2d 439, 448 (7th Cir.1990). Rather, they are dedicated by Congress to sustaining multiple uses, including "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. § 528 et seq. At the same time, under the Forest Act, the Forest Service has a duty to protect endangered wildlife and its habitat through resource management. 36 C.F.R. § 219.19(a)(7); see generally, Seattle Audubon Soc. v. Robertson, No. 89-160WD, 1991 WL 180099 (W.D.Wash. March 7, 1991) p. 10-14.

The primary engine of resource management under the Forest Act is the Land Resource Management Plan,¹ which occurs at the forest level. 16 U.S.C. § 1604. The national stage in the planning process is the Renewable Resources Assessment and Program which is established by the Secretary and analyzes both the supply and demand for the resources of the National Forests and the costs and values of those resources and uses. 36 C.F.R....