Wildlaw v. U.S. Forest Service, Civil Action No. 2:03cv682-MHT (WO).

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
Writing for the CourtMyron H. Thompson
Citation471 F.Supp.2d 1221
PartiesWILDLAW, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
Decision Date26 January 2007
Docket NumberCivil Action No. 2:03cv682-MHT (WO).
471 F.Supp.2d 1221
WILDLAW, et al., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.
Civil Action No. 2:03cv682-MHT (WO).
United States District Court, M.D. Alabama, Northern Division.
January 26, 2007.

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Brett M Paben, Tallahassee, FL, Howard Raymond Vaughan, Jr, WildLaw, Montgomery, AL, for Plaintiffs.

Barclay Thomas Samford, U.S. Department of Justice, Environmental & Natural Resources Div., Denver, CO, Benjamin Longstreth, U.S. Department of Justice, Environment and Natural Resources Div., General Litigation Section, Washington, DC, for Defendants.

OPINION

MYRON H. THOMPSON, District Judge.


Plaintiffs Wildlaw et al. (collectively referred to as Wildlaw),1 a group of 18 environmental

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coalitions and nonprofit organizations from around the country, have brought this suit against defendants United States Forest Service et al. (collectively referred to as the Forest Service).2 In an 11-count complaint, Wildlaw challenges the validity of three sets of regulations promulgated by the Forest Service in 2003. The Forest Service denies that the regulations are invalid and also argues that Wildlaw lacks standing and that its claims are not ripe for adjudication.

Jurisdiction is proper under 28 U.S.C. § 1331, and this cause of action arises under the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The parties have agreed to forgo summary-judgment proceedings as well as trial; this case is now under final submission for a decision on the basis of the administrative records and briefs filed with the court. For the reasons that follow, the court finds in favor of the Forest Service.

I. FACTUAL BACKGROUND
A. The Healthy Forests Initiative

In August 2002, the President of the United States unveiled his Healthy Forests Initiative, a program designed to confront "a crisis of deteriorating forest and rangeland health, the result of a century of well-intentioned but misguided land management." Healthy Forests: An Initiative for Wildfire Prevention and Stronger Communities 1 (2002), available at http:// www.whitehouse.gov/infocus/ healthyforests/Health y_Forests_v2.pdf. According to the President's report, "[n]atural, low-intensity fires" contribute to forest health by "reducing the buildup of fuels," thereby reducing vulnerability to severe fires. Id. Due to the government's over-suppression of wildfires in the past, forests had become "unnaturally dense" / and "overloaded with fuels," significantly increasing the risk of catastrophic wildfires. Id. The Healthy Forests Initiative was designed to restore American forests to health.

In addition to detailing this new substantive policy goal of enhancing forest health by removing fuels and reducing the risk of catastrophic wildfires, the President's report identified "considerable administrative delays" preventing the government from efficiently addressing the forest crisis. Id. at 13; see also The Process Predicament: How Statutory, Regulatory, and Administrative Factors Affect National Forest Management 15 (2002) ("Procedural constraints keep national forest management from being as efficient and effective as it should be."), available at http://www.fs.fed.us/projects/documents/ Process-Predica ment.pdf. A significant part of the Healthy Forests Initiative was therefore dedicated to reducing the procedural and administrative burdens associated with regulating our Nation's forests. See Healthy Forests at 3 ("President Bush is directing Agriculture Secretary Veneman, Interior Secretary Norton and Council on Environmental Quality Chairman Connaughton to improve regulatory processes to ensure more timely decisions,

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greater efficiency, and better results in reducing the risk of catastrophic wildfires by restoring forest health." (emphasis added)).

B. Categorical Exclusions

One significant procedural change available to the Forest Service in furtherance of the Healthy Forests Initiative was the adoption of new categories of agency actions to be excluded from documentation under the National Environmental Policy Act of 1969 (NEPA) 42 U.S.C. §§ 4321-4370f. To place the concept of categorical exclusion in context, a brief description of NEPA is appropriate. A description of the so-called "categorical exclusions" follows.

1. NEPA and the Concept of Categorical Exclusion

NEPA is the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1. Among other things, NEPA requires that federal agencies prepare a detailed report, known as an environmental impact statement (EIS), for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "NEPA does not work by mandating that agencies achieve particular substantive environmental results. Rather, NEPA promotes its sweeping commitment to `prevent or eliminate damage to the environment and biosphere' by focusing Government and public attention on the environmental effects of proposed agency action." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting 42 U.S.C. § 4321).

Pursuant to NEPA, the Council on Environmental Quality has promulgated a complex array of regulations, some of which govern the procedures a federal agency must follow to determine whether an agency action is one that requires the preparation of an EIS. See generally 40 C.F.R. pts. 1500-1508. There are generally two ways a federal agency can act without preparing an EIS. See 40 C.F.R. § 1501.4. First, the agency can prepare a shorter document, known as an environmental assessment (EA), and, based on the EA's conclusion that the action will not significantly affect the human environment, issue a "finding of no significant impact." Id. §§ 1508.9, 1508.13. Second, because the preparation of an EA is itself time-consuming and burdensome, an agency can identify a class of actions, known as a categorical exclusion (CE), that normally do not significantly affect the human environment. Id. §§ 1507.3(b)(2)(ii), 1508.4. If the agency determines that an action falls into a previously adopted CE and that there are no extraordinary circumstances rendering a normally excluded action likely to have a significant effect, id. § 1508.4, it can go forward with the action absent NEPA documentation-that is, without the need to prepare an EA or EIS, id. § 1501.4.

2. The Challenged CEs

Consequently, one way for federal agencies to reduce the paperwork and delays associated with agency action is to adopt more CEs, thereby eliminating the need for NEPA documentation for future categorically excluded actions. In 2003, the Forest Service did just that. The relevant CEs for the purposes of this litigation are two CEs adopted for fire-management activities (Fire CEs) and three CEs adopted for limited-timber harvesting (Timber CEs).

a. Fire CEs

As part of the Healthy Forests Initiative, the Forest Service proposed and implemented two new CEs for fire-management activities. National Environmental Policy Act Documentation Needed for Fire Management Activities; Categorical Exclusions,

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68 Fed.Reg. 33,814 (June 5, 2003) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(10)-(11) (2004)). The first is a CE for "hazardous fuels reduction activities."3 Such activities, including prescribed burning, thin the forest in an attempt to reduce fuels for ignition and thereby lower the risk and severity of wildfires. The second is a CE for "post-fire rehabilitation activities."4 Such activities occur after a wildfire and are designed to restore affected areas to their original or improved conditions. By determining that these activities "do not individually or cumulatively have a significant effect on the human environment and therefore normally do not require further analysis in either an environmental assessment or an environmental impact statement," 68 Fed. Reg. at 33,814, the Forest Service categorically excluded them from NEPA documentation, thus reducing their procedural burdens.

b. Timber CEs

At nearly the same time it adopted the Fire CEs, the Forest Service proposed and implemented three new CEs for limited-timber harvesting. National Environmental Policy Act Documentation Needed for Limited Timber Harvest, 68 Fed.Reg. 44,598 (July 29, 2003) (codified at Forest Service Handbook 1909.15, ch. 30, § 31.2(12)-(14)). The first Timber CE, known as Category 12, permits the harvesting of up to 70 acres of live trees.5

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The second Timber CE, known as Category 13, allows the salvage of dead or dying trees not to exceed 250 acres.6 The third Timber CE, known as Category 14, allows the harvesting of trees, also not to exceed 250 acres, to control the spread of insects and disease.7

It appears that the Timber CEs are not formally a part of the Healthy Forests Initiative. However, the Timber CEs implement similar goals and policies as the Fire CEs. For instance, "[e]xamples of projects that could be implemented under Category 12 include thinning of overly dense stands of trees to improve the health and vigor of the remaining trees." 68 Fed.Reg. at 44,598. In Category 13, the CE "allows salvage harvest in areas where trees have been severely damaged by forces such as fire, wind, ice, insects, or disease and still have some economic value as a forest product." Id. And, in Category 14, the CE "allows the agency to apply harvest methods to control insects and disease before they spread to adjacent healthy trees." Id. Thus, like the Fire CEs, the Timber CEs implemented the Forest Service's goals of (1) thinning those areas of the forests most vulnerable to fire and disease in an effort to fortify their general health, and (2) improving the efficiency of such actions by reducing their administrative burdens such as .NEPA documentation.8 Again, by determining that these activities "do not individually or cumulatively have a significant...

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7 practice notes
  • Areas v. Fed. Highway Admin., Civil Action No. SA–08–CA–154–FB.
    • United States
    • U.S. District Court — Western District of Texas
    • 22 Abril 2011
    ...NEPA documentation, that is without the need to prepare an EA or EIS. Id. § 1501.4; see also Wildlaw v. United States Forest Serv., 471 F.Supp.2d 1221, 1226 (M.D.Ala.2007) (discussing NEPA and concept of categorical exclusions). The Federal Highway Administration's regulations define CEs as......
  • Sierra Club, Inc. v. Bostick, CASE NO CIV-12-742-R
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • 30 Diciembre 2013
    ...of the CE flows from the NEPA violation, not from the application of the CE." Id. at 1022. Similarly, in Wildlaw v. U.S. Forest Serv., 471 F.Supp.2d 1221 (M.D.Ala. 2007), the court concludedPage 11that "plaintiffs who mount a facial challenge to a CE on grounds that it is unsupported by the......
  • Western Watersheds Project v. Kraayenbrink, No. CV-05-297 E-BLW.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • 28 Febrero 2008
    ...a regulation that failed to comply with the procedural rules of NEPA or the ESA could be valid. See Wildlaw v. U.S Forest Service, 471 F.Supp.2d 1221 (M.D.Ala. 2007) (applying Salerno to NEPA challenge but holding that it made no difference in In contrast, the FLPMA claims are substantive i......
  • City of Dania Beach v. U.S. Army Corps of Eng’rs, CASE NO. 12-60989-CIV-COHN/OTAZO-REYES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 22 Julio 2013
    ...arbitrary-and-capricious standard set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)." Wildlaw v. U.S. Forest Serv., 471 F. Supp. 2d 1221, 1231 (M.D. Ala. 2007) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-76 (1989); N.Page 8Buckhead Civic Ass'n v. Skinner, ......
  • Request a trial to view additional results
6 cases
  • Areas v. Fed. Highway Admin., Civil Action No. SA–08–CA–154–FB.
    • United States
    • U.S. District Court — Western District of Texas
    • 22 Abril 2011
    ...NEPA documentation, that is without the need to prepare an EA or EIS. Id. § 1501.4; see also Wildlaw v. United States Forest Serv., 471 F.Supp.2d 1221, 1226 (M.D.Ala.2007) (discussing NEPA and concept of categorical exclusions). The Federal Highway Administration's regulations define CEs as......
  • Sierra Club, Inc. v. Bostick, CASE NO CIV-12-742-R
    • United States
    • United States District Courts. 10th Circuit. Western District of Oklahoma
    • 30 Diciembre 2013
    ...of the CE flows from the NEPA violation, not from the application of the CE." Id. at 1022. Similarly, in Wildlaw v. U.S. Forest Serv., 471 F.Supp.2d 1221 (M.D.Ala. 2007), the court concludedPage 11that "plaintiffs who mount a facial challenge to a CE on grounds that it is unsupported by the......
  • Western Watersheds Project v. Kraayenbrink, No. CV-05-297 E-BLW.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • 28 Febrero 2008
    ...a regulation that failed to comply with the procedural rules of NEPA or the ESA could be valid. See Wildlaw v. U.S Forest Service, 471 F.Supp.2d 1221 (M.D.Ala. 2007) (applying Salerno to NEPA challenge but holding that it made no difference in In contrast, the FLPMA claims are substantive i......
  • City of Dania Beach v. U.S. Army Corps of Eng’rs, CASE NO. 12-60989-CIV-COHN/OTAZO-REYES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 22 Julio 2013
    ...arbitrary-and-capricious standard set forth in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A)." Wildlaw v. U.S. Forest Serv., 471 F. Supp. 2d 1221, 1231 (M.D. Ala. 2007) (citing Marsh v. Or. Natural Res. Council, 490 U.S. 360, 375-76 (1989); N.Page 8Buckhead Civic Ass'n v. Skinner, ......
  • Request a trial to view additional results
1 books & journal articles
  • The Trump Card: Tarnishing Planning, Democracy, and the Environment
    • United States
    • Environmental Law Reporter Nbr. 50-4, April 2020
    • 1 Abril 2020
    ...agency adopts a CE, which it must do through notice-and-comment rulemaking, subject to CEQ approval. See Wildlaw v. U.S. Forest Serv., 471 F. Supp. 2d 1221, 1243 (M.D. Ala. 2007). 35. 40 C.F.R. §1508.4 (2019). 36. 85 Fed. Reg. at 1715 (proposed §1501.4(b)(1)). 37. Id . (proposed §1501.4(a))......

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