Opinion
Case No. 2:00-CV-15.
September 26, 2001
OPINION
This case involves a challenge by Northwoods Wilderness Recovery, Inc., Douglas Cornett, and Frank Verito ("plaintiffs") to a timber harvest of northern hardwood stands in the Watersmeet Ranger District of the Ottawa National Forest (the "Rolling Thunder project" or "Rolling Thunder proposal"). Plaintiffs have filed suit against the United States Forest Service, Jeff Larson, who is the District Ranger for the Watersmeet Ranger District, and Robert Jacobs, the Regional Forester ("defendants"), seeking a declaratory judgment and injunctive relief. Plaintiffs claim that the Rolling Thunder project violates federal law, in particular, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq. Before the Court are plaintiffs' and defendants' motions for summary judgment. For the reasons set forth below, the Court grants defendants' motion for summary judgment. As a result, plaintiffs' motion for summary judgment is moot.
I. BACKGROUND
The NFMA requires the Secretary of Agriculture to develop and revise land resource management plans ("LRMP") for each unit of the National Forest Service. See 16 U.S.C. § 1604(a) (2000). Each forest's LRMP establishes basic goals, guidelines, and standards for managing the forest. See AR, Vol. 7, Tab C at I-2. Site-specific decisions, such as the Rolling Thunder project, must be consistent with the LRMP. See 16 U.S.C. § 1604(i) (2000); Kuff v. United States Forest Serv., 22 F. Supp.2d 987, 989 (W.D. Ar. 1998).The NFMA requires that LRMPs be prepared in accordance with the provisions of NEPA. See 16 U.S.C. § 1604(g)(1) (2000).
In 1986, the Ottawa National Forest issued its LRMP ("Forest Plan" or "Plan") accompanied by an environmental impact statement ("EIS"), as required by NEPA. See 42 U.S.C. § 4332(2)(C) (1994); Administrative Record ("AR"), Vol. 7, Tabs A, C-E. The Plan divides the Ottawa National Forest into Management Areas ("MA"). See AR, Vol. 7, Tab C, Chapter IV. The Rolling Thunder project will occur in MA 2.1. See AR, Vol. 1, Tab E5 at 21.
On December 8, 1997, District Ranger Jeff Larson of the Watersmeet Ranger District in MA 2.1 sought public comment on the Rolling Thunder proposal. See AR, Vol. 1, Tab B2 at 3. The Rolling Thunder project proposed both individual tree selection cutting of mixed northern hardwoods and clearcutting of aspen stands. See id. The Forest Service prepared an Environmental
Selection cutting refers to the removal of "trees individually in a scattered pattern from a large area each year." AR, Vol. 7, Tab D at VII-31. Selection cutting results in uneven-aged stands in which the trees "differ markedly in age or size." See id. at VII-37. The reason is that if some, but not all, trees in an area are cut down, the trees that grow in place of those cut "will be younger than the surrounding trees, which had been spared." Cronin v. United States Dep't of Agric., 919 F.2d 439, 442 (7th Cir. 1990).
Clearcutting is "[a] regeneration method used to establish even-aged stands whereby all commercial size trees are removed in one harvest." AR, Vol. 7, Tab D at VII-5. Harvesting is the "cutting and removal of trees from the forest for utilization, generally by commercial timber sale." Id. at VII-15. An even-aged stand is one in which the trees are of approximately the same age. "If all the trees in a tract are cut down at once, the new trees that grow in their place will be of roughly the same age." Cronin, 419 F.2d at 441.
Assessment ("EA") of the Rolling Thunder proposal, which included responses to various public comments, including comments made by plaintiffs Verito and Cornett. See AR, Vol. 1, Tab E-5, Appendix B at 71-73. The EA considered three alternative courses of action, including the proposed Rolling Thunder project and a no-action alternative. See id. at 27-31 (describing the alternatives). A biological evaluation (BE) of the three alternatives discussed in the EA was also prepared. See AR, Vol. 1, Tab C23. The BE concluded that none of the alternatives discussed in the EA would have adverse effects on "any known Federally proposed, threatened, or endangered species" or "any Regionally Sensitive species." See id. at 209. The BE was incorporated by reference into the EA. See AR, Vol. 1, Tab E5 at 53.
On February 11, 1999, District Ranger Larson issued a Decision Notice ("DN"), in which he "decided not to select any of the three alternatives presented in the [EA] as they [were] written, but to select a combination of Alternative 1 (No Action) and Alternative 2 (Proposed Action), with some additional mitigation measures." AR, Vol. 1, Tab E4, at 7. The DN authorized the individual tree selection cutting of more than 800 acres of northern hardwoods and the clearcutting of 95 acres of aspen. See id. at 8, 12 Tbl. 1. District Ranger Larson, relying on the EA, also issued a Finding of No Significant Impact ("FONSI") with regard to this harvesting decision. See id at 17.
Plaintiffs have consistently stated that they oppose the selection cutting of 905 acres of northern hardwoods. See Amended Complaint for Declaratory and Injunctive Relief ¶ 12; Transcript of Motions for Summary Judgment ("Tr."), Feb. 21, 2001, at 10. Defendants claim that the Decision Notice and Finding of No Significant Impact "authorized 804 acres of selection harvest in northern hardwoods." Defendants' Answer to Plaintiffs' Amended Complaint, ¶ 12 at 6. This discrepancy in acreage does not affect the Court's analysis or conclusions.
Plaintiffs do not challenge the clearcutting of 95 acres of aspen. See Tr. at 10-11.
Plaintiffs, pursuant to 36 C.F.R. § 215.12, appealed District Ranger Larson's decision. See Plaintiffs' Brief in Support of Motion for Summary Judgment ("Plaintiffs' Brief in Support"), Attachment 1. On May 19, 1999, Robert T. Jacobs, Regional Forester and Appeal Deciding Officer, affirmed District Ranger Larson's DN and FONSI. See id, Attachment 2. Plaintiffs then filed suit, seeking both declaratory and injunctive relief, alleging violations of both the NFMA and NEPA. Both plaintiffs and defendants have filed motions for summary judgment. The Court will first address the defendants' motion for summary judgment.
II. STANDARD OF REVIEW
Summary judgment is proper when there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A motion for summary judgment in the context of a court's review of an administrative agency decision, however, "stands in a somewhat unusual light [because] the administrative record provides the complete factual predicate for the court's review." See Krichbaum v. Kelley, 844 F. Supp. 1107, 1110 (W.D.Va. 1994), aff'd, 1995 U.S. App. LEXIS 20237 (4th Cir. July 31, 1995). In order to survive summary judgment, then, the plaintiffs "must point to facts in the administrative record — or to factual failings in that record — which can support [their] claims under the governing legal standard." Id; see also Plaintiffs' Brief in Support at 4. There is good reason for limiting the Court's review to the administrative record. Federal district court judges lack the agency's technical expertise necessary to evaluate "testimonial and documentary evidence . . . unless the evidence has first been presented to and considered by the agency." Cronin v. United States Dep `t of Agric., 919 F.2d 439, 444 (7th Cir. 1990). For this reason, agency determinations are entitled to deference by a reviewing court. The Court may "set aside the agency determination only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir. 1997) (citations omitted).
III. LEGAL ANALYSIS
A. Count I: Consistency with the Forest Plan
In Count I of their amended complaint, plaintiffs allege that the Rolling Thunder DN and FONSI are inconsistent with the Plan. The Forest Plan provides for planned harvesting by selection cutting of 2800 acres of trees on average per year in MA 2.1. See AR, Vol. 7, Tab C at IV-115, Tbl. 2. lb. Plaintiffs allege and defendants concede that during the first decade under the Plan, the Ottawa National Forest averaged 4,814 acres per year by selection harvest of northern hardwoods. See Amended Complaint for Declaratory and Injunctive Relief ("Amended Complaint") ¶ 25; Defendants' Answer at 9. As a result, plaintiffs allege that the DN and FONSI are inconsistent with the Forest Plan, in violation of the NFMA.
This is the annual average acreage for time period 1, which "is the life of the plan" — a period of up to 15 years. Tr. at 6. See AR, Vol. 7, Tab C at I-2 (explaining that the Plan "[e]stablishes management direction in terms of goals and objectives for the Forest for the next 10 to 15 years").
The Forest Plan, however, must be read as a whole. In the general section on vegetation preceding the analysis for each management area, the Plan discusses the uneven-aged management of sugar maples. The Forest Plan provides that "[f]or stands managed uneven-aged, there is no restriction on acreage of selection cuts within any one 10-year period." AR, Vol. 7, Tab C at IV-71. Therefore, it appears that selection cutting of sugar maples is excepted from any acreage limitation on harvesting by selection cutting established for MA 2. l.
Selection cutting results in an uneven-aged stand of trees. See supra note 1.
It is unnecessary for the Court to decide whether the acreage averages in the Plan set limits on the annual harvesting by selection cutting in MA 2.1
Plaintiffs claim that this language from the Plan does not mean that unlimited selection cutting of sugar maples can occur in Management Area 2.1. They argue that sugar maples occur in MA 2.1 and, thus, are subject to the 2800-acre average per year provided for in the Plan. See Tr. at 41-42.
A basic maxim of interpretation, however, whether applied to contracts, rules of procedure, or statutes, is that specific language controls over general language. See BP Chemicals, Inc. v. First State Ins. Co., 226 F.3 d 420, 426-27 (6th Cir. 2000) (applying the maxim to contract language); Apostolic Pentecostal Church v. Colbert, 169 F.3 d 409, 414 (6th Cir. 1999) (applying the maxim to rules of procedure); Sprague v. General Motors Corp., 133 F.3d 388, 405-406 (6th Cir.) (applying the maxim to statutory language), cert. denied, 524 U.S. 923 (1998). The acreage average for selection cutting in MA 2.1 is general language about a form of harvesting of all trees in MA 2.1. The Forest Plan's statement about uneven-aged management of sugar maples, however, is specific language about a particular kind of tree found in MA 2.1. If the 2800-acre average controlled, then it would make no sense to state that unlimited selection cutting of sugar maples could occur.
Moreover, to read the Forest Plan language as suggested by plaintiffs renders its language inconsistent. An example reveals the flaw in plaintiffs' argument. If all of the trees in MA 2.1 were sugar maples, then, according to plaintiffs, no more than 2800 acres, on average per year, could be harvested using selection cutting. If that were the case, however, the Forest Plan's statement that no acreage limitation exists during any 10-year period for selection cuts of sugar maples would directly contradict what plaintiffs claim is a cap on harvesting in MA 2.1. It is more appropriate to read the Forest Plan's language to avoid such inconsistencies and contradictions. See Calobrace v American Nat'l Can Co., 1995 U.S. Dist. LEXIS 1406, *38 (N.D.Ill. Feb. 1, 1995) (employing maxim that document should be interpreted to avoid contradictions); Cf. BP Chemicals, 226 F.3d at 426-27 (stating that contract should be read to give effect to each provision). Reading the Plan's language about uneven-aged management of sugar maples as an exception to any acreage limitation for MA 2.1 better accomplishes that goal. Therefore, the Court concludes, even assuming that the acreage averages for Management Area 2.1 operate as an annual cap on selection cutting, that sugar maples are not included in any such acreage limitation.
As a result, in order to survive summary judgment on this issue, plaintiffs must point to facts in the administrative record indicating that the "excessive" selection cutting in Management Area 2.1 consisted of trees other than sugar maples. Plaintiffs, however, fail to do so. See Tr. at 35-37. In fact, the administrative record indicates that sugar maples will be the dominant type of tree harvested in the Rolling Thunder project. See AR, Vol. 1, Tab E5 at 37, ¶¶ 3-4. In addition, because sugar maples are the most common species of tree in MA 2.1, it stands to reason that they have been the dominant, though not only, type of tree harvested by selection cutting in MA 2.1 since the Plan's inception. See AR, Vol. 7, Tab C at IV-113.
The EA states that "[t]he northern hardwood stands proposed for treatment are currently in the second of the principal seres," which is "a quite stable association of sugar maple, basswood and red maple." AR, Vol. 1, Tab E5 at 37, ¶¶ 3-4. "[A] `sere' is a group of species which typically co-exist during one stage of the evolution of a forest [and] [t]he first species listed in a sere is the dominant species." Defendants' Response to Plaintiffs' Motion for Summary Judgment at 12 nn. 8-9.
In conclusion, plaintiffs have provided the Court with no facts to support their argument that the selection cutting in MA 2.1 of the Ottawa National Forest violated the terms of the Forest Plan.
Plaintiffs also have failed to point to facts in the administrative record demonstrating that the Rolling Thunder timber sale adds to any alleged over cutting. As a result, plaintiffs fail to show that the DN and FONSI are inconsistent with the Forest Plan, in violation of the NFMA. Accordingly, defendants are entitled to summary judgment on Count I of plaintiffs' amended complaint.
B. Count II: Excess harvesting and NEPA
In Count II, plaintiffs allege that the Forest Service has not examined, either in an EIS or an EA, the cumulative impacts of the alleged over cutting in MA 2.1. Plaintiffs claim that this failure to evaluate violates both the Multiple Use Sustained Yield Act, 16 U.S.C. § 528-31, and NEPA.
Other than relying on NEPA instead of the NFMA for the underlying statutory violation, Count II rests on the same premise as Count I: the Ottawa National Forest has exceeded the acreage limitations on selection cutting in MA 2.1. The Court has dispensed with this argument in its discussion of Count I. Therefore, the Court grants defendants' motion for summary judgment on Count II of plaintiffs' amended complaint for the same reasons that it granted summary judgment for defendants on Count I.
Any claim about the cumulative impact of logging activities in and around the Rolling Thunder project site, apart from the allegations of excess cutting under the Plan, is examined in the Court's analysis of Count III of plaintiffs' amended complaint.
C. Count III: Failure to examine cumulative effects
In Count III of their amended complaint, plaintiffs claim that neither the EA nor the FONSI considers the cumulative impact of past and present logging in and around the Rolling Thunder project site. As a result, plaintiffs assert that defendants have violated NEPA.
NEPA directs all federal agencies to include a detailed statement on the environmental impact of any "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (1994). The Council on Environmental Quality ("CEQ") has promulgated regulations, which are entitled to substantial deference, to assist federal agencies in complying with NEPA. See Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 504 (6th Cir. 1995). The CEQ regulations permit an agency to prepare an EA in order to decide whether an EIS is necessary. See 40 C.F.R. § 1508.9(a)(1) (2001).
In this case, District Ranger Larson determined that an EIS was not needed because the Rolling Thunder proposal, as modified in the DN, would not "significantly affect the quality of the human environment." AR, Vol. 1, Tab E4 at 17. Therefore, he issued a finding of no significant impact. See id.; 40 CYR, § 1508.13 (2001). Issuance of an EA "constitutes a `final agency action' for purposes of NEPA actions brought pursuant to the Administrative Procedure Act." Southwest Williamson County Comm. Assoc. v. Slater, 243 F.3d 270, 274 n. 3 (6th Cir. 2001). When reviewing an agency's final decision under the APA, "the appropriate standard of review is that [the court will] set aside the agency determination only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Sierra Club, 120 F.3d at 632 (citations omitted). Deference to the agency is proper because of its technical expertise. The Court's task is not to "substitute [its] judgment for that of the agency . . . [but] [r]ather . . . [to] determine whether the agency has adequately reviewed the issue and taken a `hard look' at the environmental impact of its decision." Friends of Fiery Gizzard, 61 F.3d at 506 n. 2 (citations omitted).
In their amended complaint, plaintiffs allege that "the Administrative Procedure Act gives [the] Court jurisdiction" and that "all actions challenged in the Complaint are final actions for purposes of review." Amended Complaint ¶ 2.
This is a difficult standard for plaintiffs to satisfy, and they have not done so here. First, the BE discussed the cumulative effects on plant and animal habitat of the various logging activities in and around the Rolling Thunder project site. See AR, Vol. 1, Tab C23 at 203-204. It concluded that the various logging projects would "result in a forest consisting primarily of mixed northern hardwood stands, with small stands of regenerating aspen and conifers interspersed." Id. at 204. In addition, the BE made specific findings as to the impact of past and future practices in MA 2.1 on both the lynx and northern goshawk. The BE concluded that past practices have not negatively affected lynx habitat and, in fact, have "created a mosaic" of vegetation favorable to the northern goshawk. See id. at 204-205.
The EA contains a discussion of the cumulative effects of past and possible future logging projects on vegetation in MA 2.1. See AR, Vol. 1, Tab E5 at 39-40. It also evaluates the cumulative impact of such logging on (1) soil and water quality, see id. at 43-44, (2) specific wildlife species, in addition to those evaluated in the BE, see id. at 51-52, (3) recreation, see id. at 55, 57-58, (4) access management, see id. at 59-60, (5) visual resources, see id. at 63, (6) heritage resources, see id. at 63, and (7) economics, see id. at 64.
Therefore, the Court concludes that defendants have adequately considered the cumulative effects of logging activities in and around the Rolling Thunder project area. Plaintiffs have failed to demonstrate that defendants' conclusions about the impact of logging in and around the Rolling Thunder site are arbitrary, capricious, an abuse of discretion, or contrary to law. Accordingly, defendants' motion for summary judgment as to Count III of plaintiffs' amended complaint is granted.
D. Count V: Endangered, Threatened and Sensitive Species
Count III of plaintiffs' original complaint was dismissed by an order of this Court issued on May 8, 2000. Dkt. # 10. In renumbering their amended complaint, plaintiffs omitted a Count IV.
In Count V, plaintiffs allege that the EA inadequately examines the cumulative impact of the selective logging in the Rolling Thunder area on several species of birds and wildlife, in violation of NEPA. They also claim that the defendants have failed to monitor and obtain current inventory or population data on the endangered, threatened and sensitive species in the area of the Rolling Thunder project, in violation of the NFMA. In particular, plaintiffs claim that the EA's examination of impacts and defendants' monitoring and population data are deficient with regard to four species: (1) the northern goshawk; (2) the American bittern, (3) the red-shouldered hawk, and (4) the Canada lynx. The Court addresses each of these claims, in turn.
1. The Northern Goshawk
Plaintiffs make three arguments concerning the EA's treatment and the defendants' monitoring of the northern goshawk. First, plaintiffs question the BE's conclusion that "[t]here are no known nesting goshawks within the Rolling Thunder project area." AR, Vol. 1, Tab C23 at 201. In support of this conclusion, defendants note that site-specific surveys were conducted on four separate days in January and February of 1998, finding no evidence of the northern goshawk. AR, Vol. 1, Tab G9 at 25, 29, 33, 37 41; cf. Krichbaum, 844 F. Supp. at 1112-13 (finding that one-day field survey of project area in which no sensitive species were located was not infirm for purposes of NEPA given that the EA is supposed to be a brief assessment of environmental impact).
Plaintiffs, on the other hand, point to no facts in the administrative record that contradict the BE's conclusion. Instead, plaintiffs offer, as an attachment to their brief in support, a report prepared for the Hiawatha National Forest, which identified three nests of northern goshawks and three fledgling young in 1998 in the Ottawa National Forest. See Plaintiffs' Brief in Support, Attachment 3; see id. at 19. Even plaintiffs concede, however, that the Hiawatha report failed to identify the district of the forest in which the nests and young were found. See id. Therefore, plaintiffs fail to present evidence from the record contradicting the BE's conclusion about the absence of nesting goshawks in the area of the Rolling Thunder project.
Second, plaintiffs allege inadequate monitoring of the northern goshawk. The Plan requires monitoring the northern goshawk every five years. See AR, Vol. 7, Tab C at V-12, 13, Tbl. 5.2. The northern goshawk is a management indicator species ("MIS") whose "presence in a certain location . . . indicates a particular environmental condition." AR, Vol. 7, Tab D at VII-15. Population changes of a MIS are "believed to indicate effects of management activities on a number of other species or water quality." See id. In other words, monitoring of the northern goshawk helps the Forest Service to determine the impact of activities, like logging, on the goshawk and a variety of other species of wildlife. See Krichbaum, 844 F. Supp. at 1114 (explaining that a MIS serves as "a monitoring prox[y] for a number of other plant and animal species").
In their briefs, plaintiffs make much of the fact that the BE does not specifically state that the northern goshawk is a management indicator species. See Plaintiffs' Brief in Support at 19; Plaintiffs' Brief in Support of Reply/Response to Defendants' Motion for Summary Judgment ("Plaintiffs' Response Brief') at 13. Yet, as the Court concludes, the Ottawa National Forest has been monitoring the northern goshawk and the BE contained an evaluation of the impact of the Rolling Thunder project on the species. It is unclear, then, how simply stating that the northern goshawk is a management indicator species in the BE or EA would improve or change the analysis already provided by defendants.
The plaintiffs' claim of inadequate monitoring, however, is belied by the administrative record. Between 1993 and 1998, the Ottawa National Forest monitored the northern goshawk on an annual basis. See AR, Vol. 8, Tab J at 4, Tbl. I. 1 (1993-1996); Defendants' Response to Plaintiffs' Motion for Summary Judgment ("Defendants' Response"), Attachment B, at 4, Tbl. I. 1 (1997-1998).
Finally, plaintiffs challenge the BE's conclusion that the Rolling Thunder project "would not be expected to have negative impacts on goshawk habitat." AR, Vol. 1, Tab C23 at 201. They do so, relying on a 1990 paper based on research in Arizona and New Mexico, and on a subsequent study of the goshawk in Wisconsin. Both studies are included in the administrative record. See AR, Vol. 3, Tab L at 1, 11. Defendants counter that the Forest Service dismissed the findings of the Arizona and New Mexico study because "it was done in a drastically different setting" from that existing in the Ottawa National Forest. Defendants' Response at 21. Defendants also claim that the Wisconsin study supports its "conclusion that vast areas of forest with a completely closed canopy are not always necessary for Goshawk nesting." Id.
Basically, plaintiffs are asking the Court to accept their scientific studies and reject those relied upon by defendants. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989); Sierra Club, 120 F.3d at 633 (6th Cir. 1997). Defendants' experts conducted a biological evaluation of the impact of the Rolling Thunder project and concluded that the project was not expected to negatively affect the northern goshawk habitat. See AR, Vol. 1, Tab C23 at 201. Therefore, the Court concludes that plaintiffs have not demonstrated that the agency's determination regarding the northern goshawk was arbitrary, capricious, an abuse of discretion, or contrary to law.
2. The American Bittern
Plaintiffs claim that the Ottawa National Forest has failed to monitor population trends of the American bittern, a MIS, in order to ascertain the impact of habitat changes on the bittern's population. See AR, Vol. 7, Tab C at V-12, 13, Tbl. 5.2 (listing American bittern as a MIS). Plaintiffs assert that this failure violates the NFMA's implementing regulations, which require monitoring of MIS to determine the impact of habitat changes on such species. See 36 C.F.R. § 219.19(a)(6) (1995).
Section 219.19(a)(6) used to provide, in pertinent part, as follows: "Population trends of the management indicator species will be monitored and relationships to habitat changes determined." 36 C.F.R. § 219.19(a)(6) (1995). In November of 2000, after the EA was prepared and the DN and FONSI issued, Section 219 was amended, in part, to "simplify, clarify, and otherwise improve the planning process," and "to reduce burdensome and costly procedural requirements." National Forest System Land and Resource Management Planning, 65 Fed. Reg. 67514 (Nov. 9, 2000) (codified at 36 C.F.R. pt. 217, 219). Section 219.19 no longer contains a requirement for monitoring of MIS to determine relationships to habitat changes.
Contrary to plaintiffs' assertion that monitoring has not occurred, the Ottawa National Forest has conducted both monitoring and evaluation of the American bittern. See AR, Vol. 8, Tab J at 4, Tbl. I.1, 28; Defendants' Response, Attachment B, at 4, Tbl. I.1, 26. According to the Ottawa National Forest 1st Decade Report, "[t]he American Bittern appears to be stable" as the "quantity and quality of wetlands on the Ottawa were stable over the past ten years." AR, Vol. 8, Tab J at 28. In its 1997-98 Monitoring and Evaluation Report, the Ottawa National Forest found that while the population of the American bittern had been declining, in particular in the north-central portion of the United States, that "trend [was] not evident on the Ottawa, where [Breeding Bird Census] and [Breeding Bird Survey] data show[ed] a stable population level." Defendants' Response at 26. Therefore, at the time of the EA's preparation, the population of the American bittern was stable in the Ottawa National Forest, in part, due to the stability of wetlands in the Ottawa National Forest. See AR, Vol. 8, Tab J at 28.
In her ruling on plaintiffs' appeal of District Ranger Larson's DN and FONSI, the Appeal Reviewing Officer noted that the proposed Rolling Thunder project would not adversely affect "wetlands, streambanks and lakeshores, the habitats preferred by the American Bittern." Plaintiffs' Brief in Support, Attachment 2 at 4. The EA also concluded that none of the three alternatives considered would "impact prime farmland, rangeland, floodplains, or designated wetlands." AR, Vol. 1, Tab ES at 66; see also id. at 49 (noting, in its evaluation of the impact on the red-shouldered hawk, that wetlands in the area of the project would not be affected). If the Rolling Thunder project would not affect the American bittern's preferred habitat, then it would have no adverse impact on the stable population of American bittern in the Ottawa National Forest.
The absence of adverse effects explains why defendants did not discuss the American bittern in the EA. See Cronin, 919 F.2d at 442 (7th Cir. 1990) (citation omitted) (noting that while a court cannot supply a reason for an agency decision, it can uphold a decision "of less than ideal clarity" if it can discern the agency's reasoning). Even if defendants had included a discussion of the American bittern in the EA, the end result — a finding of no significant impact — would not have changed. If wetlands, the preferred habitat of the bittern, were not affected by the Rolling Thunder project, then any discussion of the American bittern in the EA, while making the document more complete, would not alter the defendants' ultimate conclusion that an EIS was not necessary. See Sierra Club, 120 F.3d at 637 (citation omitted) (stating that "a mistake that has no bearing on the ultimate decision . . . shall not be the basis for reversing an agency decision").
Therefore, the Court concludes that the Forest Service has monitored and determined the impact of habitat changes on the American bittern. Defendants' failure to include in the BE or the EA their analysis as to why the Rolling Thunder project would not adversely affect the American bittern was harmless error.
3. The Red-Shouldered Hawk
Plaintiffs allege, that as far back as 1994, Ottawa National Forest biologists were aware that the number of red-shouldered hawks was declining. On February 29, 2000, the Regional Forester signed a new Sensitive Species list, which now includes the red-shouldered hawk. See AR, Vol. 1, Tab C23 at 210.2. Plaintiffs assert that the administrative record has no monitoring data on the red-shouldered hawk, despite the impact of the Rolling Thunder project on its habitat. In their amended complaint, plaintiffs also argue that defendants' findings in the EA that the Rolling Thunder project would not adversely affect the red-shouldered hawk are inaccurate, not based on the best science, and in violation of NEPA.
There are several problems with plaintiffs' arguments. First, the red-shouldered hawk is not a MIS, triggering monitoring responsibilities pursuant to the Plan. Second, as plaintiffs concede, the DN and FONSI were issued in February of 1999, a full year before the red-shouldered hawk's designation as a sensitive species. See Plaintiffs' Response Brief at 15-16. Plaintiffs point to no statutory provision, regulation, or other legal authority requiring defendants to monitor every single species of bird and wildlife in the Ottawa National Forest. Nonetheless, defendants conducted site-specific surveys on four separate days in January and February of 1998, but found no evidence of the red-shouldered hawk. AR, Vol. 1, Tab G9 at 25, 29, 33, 37 41.
Third, even though the red-shouldered hawk was not designated a sensitive species until after the EA was prepared, defendants did include an evaluation of the Rolling Thunder project on the redshouldered hawk. See AR, Vol. 1, Tab E5 at 49-50. The EA concluded that the Rolling Thunder project would not "have a significant negative impact on Red-shouldered hawk habitat." Id. at 49. While plaintiffs challenge this conclusion, once again, their evidence, at best, suggests a disagreement among experts. In such cases, the Court defers to the agency and the "reasonable opinions of its own qualified experts." Marsh, 490 U.S. at 378; Sierra Club, 120 F.3 d at 633. As a result, plaintiffs have failed to demonstrate that the agency's determination in the EA regarding the red-shouldered hawk was arbitrary, capricious, an abuse of discretion, or contrary to law.
In July of 2000, a supplemental biological evaluation was conducted, assessing the impact of the Rolling Thunder project on various species, like the red-shouldered hawk, that had been added to the Regional Forester's Sensitive Species list since preparation of the original BE. The supplemental BE concluded that there would be "no adverse effect on [the red-shouldered hawk] or its habitat." AR, Vol. 1, Tab C23 at 210.11. Although the supplemental BE was prepared after issuance of the DN and FONSI, it nonetheless suggests that defendants are aware of changes in species' status and have made efforts to determine the impact of the Rolling Thunder project on those species, as new information is provided to them.
4. The Canada Lynx
Plaintiffs challenge the BE's conclusion that there was "no evidence of lynx occurrence within the Rolling Thunder project area." AR, Vol. 1, Tab C23 at 200. They argue that defendants do not explain how they reached this conclusion or what type of monitoring or population data exists for the lynx, which is a threatened species.
Defendants concede that at the time of the DN, the Canada lynx was a sensitive species and that, subsequently, on August 24, 2000, the Fish and Wildlife Service designated the lynx as a threatened species, pursuant to the Endangered Species Act. See Defendants' Response at 26.
Plaintiffs offer no facts to contradict the BE's conclusion about the absence of lynx in the Rolling Thunder project area. They cite to the March 3, 1994 Sensitive Species list, which states that there was a "possible occurrence [of lynx] within the Forest." AR, Vol. 9, Tab I. But, this does not even rise to the level of a conflict among experts. The 1994 Sensitive Species list, to which plaintiffs refer, has a category for "documented extant occurrence within the Forest." See id. It is significant that the Sensitive Species list states that there was a possible, not a documented, occurrence of the lynx within the Ottawa National Forest.
On May 19, 2000, the Fish and Wildlife Service, in response to an inquiry by the Forest Supervisor for the Ottawa National Forest, agreed that there were no lynx in the Forest. "[B]ased on the best available scientific data, lynx are not currently found on the Forest, or anywhere else in Michigan." Defendants' Response, Attachment D. While this letter was written after preparation of the EA and BE, and after issuance of the DN and FONSI, it supports defendants' earlier conclusion that Canada lynx were not present in the Rolling Thunder project area.
Defendants' experts concluded that the lynx was not present in the Rolling Thunder project area. See AR, Vol. 1, Tab C23 at 200. There are at least two reasons provided in the BE for the defendants' conclusion. First, defendants conducted four site-specific surveys in January and February of 1998, but found no evidence of the lynx. See AR, Vol. 1, Tab G9 at 25, 29, 33, 37 41; AR, Vol. 1, Tab C23 at 198. Second, according to defendants, the last breeding record for the lynx in Michigan dates back to 1976. See AR, Vol. 1, Tab C23 at 200. The breeding record data is consistent with the March 3, 1994 Sensitive Species list, which does not indicate a breeding population of lynx in the Ottawa National Forest. See AR, Vol. 9, Tab I. Therefore, the Court agrees with the Tenth Circuit that the NFMA does not require the Forest Service to provide population data on the lynx when they are not found in the project area. See Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1168-1171 (10th Cir. 1999) (noting that it failed to see how the Forest Service could gather population data on the lynx when no population of lynx existed in the area).
Notwithstanding their conclusion that the Canada lynx was not present in the Rolling Thunder project area, defendants went ahead and evaluated what impact the project would have if lynx were found in the area. The BE concludes that the Rolling Thunder project would "not result in negative impacts to lynx habitat." AR, Vol. 1, Tab C23 at 200. In fact, the project might create "slight benefits in that debris from logging operations (tree tops, etc) could provide cover for denning sites, escape, and protection from severe weather." Id.
Therefore, the Court finds that defendants' conclusion that the Canada lynx is not found in the project area is not arbitrary or capricious. The Court further concludes that defendants have considered the impact of the Rolling Thunder project on lynx habitat and that defendants' findings are not arbitrary, capricious, an abuse of discretion, or contrary to law.
5. Conclusion
Plaintiffs have failed to produce facts from the administrative record to demonstrate that defendants have failed to adequately monitor and obtain population data on endangered, threatened, and sensitive species. The Court also concludes that plaintiffs have not shown a violation of NEPA because plaintiffs have not demonstrated that the conclusions reached in the EA were arbitrary, capricious, an abuse of discretion, or contrary to law. Accordingly, the Court grants summary judgment to the defendants on Count V of the plaintiffs' amended complaint.
E. Count VI: The Need for an Environmental Impact Statement
In the last count of their amended complaint, plaintiffs allege that the Forest Service's decision to issue a FONSI was arbitrary and capricious. They assert that an EIS was required for the Rolling Thunder project.
As discussed in Part III. C above, the CEQ regulations allow an agency to prepare an EA in order to determine whether an EIS is necessary. See 40 C.F.R. § 1508.9(a)(1) (2001). Preparation of an EIS is a costly and time-consuming process. See Friends of Fiery Gizzard, 61 F.3 d at 504. The EA serves as a "`rough-cut, low budget environmental impact statement,"' allowing agencies to screen projects and determine which ones require a full-blown EIS. Id. (citation omitted); see Southwest Williamson County, 243 F.3d at 274 n. 3. If the agency determines, after preparing an EA,
that an EIS is not required, because the proposed project will not have a significant impact on the human environment, then it issues a FONSI. See 40 C.F.R. § 1508.13 (2001); Krichbaum, 844 F. Supp. at 1111. When an EIS is not prepared, the EA serves to assist the agency in complying with NEPA. See 40 C.F.R. § 1508.9(2) (2001); Friends of Fiery Gizzard, 61 F.3 d at 504.
The Sixth Circuit has held that "[a]n agency decision, based on an EA, that no EIS is required, can be overturned only if it is arbitrary, capricious, or an abuse of discretion." Crounse Corp. v. Interstate Commerce Comm'n, 781 F.2d 1176, 1193 (6th Cir.) (citations omitted), cert. denied, 470 U.S. 890 (1986); see Friends of Fiery Gizzard, 61 F.3d at 506 n. 2; Sierra Club, 120 F.3d at 635. The Court should not substitute its judgment for that of the agency, but rather should determine whether the agency has taken a "hard look" at the environmental effects of the proposed decision. See Friends of Fiery Gizzard, 61 F.3 d at 506 n. 2.
Plaintiffs believe that the agency did not take a hard look, arguing that various factors that the CEQ requires agencies to consider were not addressed in the FONSI. First, plaintiffs claim that defendants did not consider the impact of the Rolling Thunder project on the Sylvania Wilderness, as required by 40 C.F.R. § 1508.27(b)(3). Section 1508.27(b)(3) provides that the "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas" is one factor for the agency to consider in its intensity analysis. 40 C.F.R. § 1508.27(b)(3) (2001).
The CEQ regulations define the term "significantly" for purposes of NEPA to include considerations of context and intensity. 40 C.F.R. § 1508.27 (2001).
The FONSI concluded that the Rolling Thunder project would not significantly affect the unique characteristics of the area, as required by 40 C.F.R. § 1508.27(b)(3), citing to the EA's discussion of cumulative impacts. See AR, Vol. 1, Tab E4 at 17, ¶ 3. In addition, the EA devoted three pages to discussing whether the Rolling Thunder project "would displace recreation use into Sylvania Wilderness and negatively impact wilderness recreation opportunities there." AR, Vol. 1, Tab E5 at 56; see id. at 56-58. Therefore, the Court concludes that plaintiffs have failed to demonstrate that the FONSI does not comply with 40 C.F.R. § 1508.27(b)(3).
The CEQ regulations specifically state that the FONSI "need not repeat any of the discussion in the assessment but may incorporate it by reference." 40 C.F.R. § 1508.13 (2001).
Second, plaintiffs assert that defendants have not satisfied the requirements of 40 C.F.R. § 1508.27(b)(10), which provides that the agency must consider whether the proposed action violates federal, state, or local law. See 40 C.F.R. § 1508.27(b)(10) (2001). Plaintiffs' argument is premised on its allegation that the Ottawa National Forest has engaged in more selection cutting in MA 2.1 than allowed by the Plan, thereby violating the NFMA. The Court has concluded, in its discussion of Counts I and II of the amended complaint, that plaintiffs' argument is without merit.
Finally, plaintiffs claim that defendants have not complied with 40 C.F.R. § 508.27(b)(4) or (5). Section 1508.27(b)(4) requires a consideration of the "degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4) (2001). Section 1508.27(b)(5) requires the agency to consider the degree to which the impact on the environment is "highly uncertain or involve[s] unique or unknown risks." 40 C.F.R. § 1508.27(b)(5) (2001). The FONSI concluded that the Rolling Thunder project would not involve highly uncertain effects or pose unique risks, and that the effects on the human environment were not highly controversial. See AR, Vol. 1, Tab E4 at 17, ¶¶ 4-5. For both findings, the FONSI referenced a substantial portion (30 pages) of the EA. See id. Plaintiffs' allegations present "a classic example of a factual dispute the resolution of which implicates substantial agency expertise." Marsh, 490 U.S. at 376. Plaintiffs have not shown that defendants failed to satisfy the requirements of § 1508.27(b)(4) or (5); instead, plaintiffs simply challenge the conclusions reached by defendants. In such circumstances, the Court cannot substitute the plaintiffs' conclusions for those of the agency, but must defer to the findings of the agency's own experts.
In conclusion, plaintiffs have failed to point to any evidence in the administrative record to demonstrate that the agency's decision not to issue an EIS was arbitrary, capricious, or an abuse of discretion. The FONSI addresses each of the ten factors required by the CEQ regulations at 40 C.F.R. § 1508.27(b)(1)-(10) and, as permitted by the regulations, references the EA for a detailed discussion of those factors. Accordingly, the Court grants defendants' motion for summary judgment as to Count VI of plaintiffs' amended complaint.
F. Plaintiff's Motion for Summary Judgment
The Court has granted defendants' motion for summary judgment as to all counts of plaintiffs' amended complaint. As a result, plaintiffs' motion for summary judgment is moot.-See Sierra Club, 120 F.3d at 639 (noting that district court cannot grant summary judgment for both plaintiff and defendant, and that granting defendants' motion for summary judgment rendered plaintiffs motion moot).
IV. CONCLUSION
For the reasons set forth in this opinion, the Court grants defendants' motion for summary judgment and finds plaintiffs' motion for summary judgment to be moot. An order consistent with this opinion will be entered forthwith.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS MOOT
In accordance with the Court's opinion of even date,
IT IS ORDERED that defendants' motion for summary judgment is GRANTED.
IT IS FURTHER ORDERED that plaintiffs' motion for summary judgment is DENIED as moot.
IT IS SO ORDERED.