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GLISSON v. UNITED STATES FOREST SERV.

August 24, 1993

JOSEPH M. GLISSON, Plaintiff,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.



The opinion of the court was delivered by: JAMES L. FOREMAN

 FOREMAN, Senior District Judge:

 This matter is before the Court on the parties' cross-motions for summary judgment (Document Nos. 20 and 23) and on the plaintiff's motion to strike and for sanctions (Document No. 28) and motion for a preliminary injunction (Document No. 30). The plaintiff's amended complaint raises issues under the Administrative Procedures Act (APA), 5 U.S.C. 701-706 (1988), the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d (1988), and the National Forest Management Act (NFMA), 16 U.S.C. § 1604 (1988). Therefore, the Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 (1988).

 I. BACKGROUND

 This action centers on the United States Forest Service's decision to implement an ecological restoration program as part of its Amended Land and Resource Management Plan for the Shawnee National Forest (hereinafter referred to as the Amended Forest Plan). The plaintiff's lawsuit is aimed primarily at the Forest Service's approval of projects that implement the new ecological restoration program in an area of the forest known as Opportunity Area 6. However, the lawsuit necessarily raises several issues related to the agency's adoption of the ecological restoration program itself.

 The Forest Service developed the ecological restoration program to restore the natural hardwood ecosystems that once existed in the region now encompassed by the Shawnee National Forest. Prior to early European settlement of the area in the early 1800s, the land was dominated by native hardwood trees and open glades or barrens communities. During the next century, brush and trees encroached upon the open barrens areas as a result of a significant reduction in the forest fires once used by Native Americans for hunting purposes. At the same time, the settlers removed some of the hardwood trees for farming. The land was farmed intensively "through the 1920's and 1930's when worn-out soil, erosion, drought, and the Great Depression caused many farmers to abandon the land." Government Exhibit B2, Environmental Assessment for Opportunity Area 6 Ecological Restoration and Vegetation Management (hereinafter Environmental Assessment), at 1.

 The federal government purchased the lands as part of the Shawnee National Forest during the 1930s, and the Forest Service and the Civilian Conservation Corps "began the first phase of restoring many of these old fields by planting pine trees to control erosion and revegetate the area." Id. Ecological restoration is "the final phase of this reclamation, returning these pine plantations to native (presettlement) ecosystems . . . ." Government Exhibit G2, Final Supplemental Environmental Impact Statement for the Amended Land and Resource Management Plan, at 4-105. Accordingly, the Forest Service has identified ecological restoration as one of the long-term management goals of its Amended Forest Plan. Government Exhibit G1, Amended Land and Resource Management Plan, at IV-3.

 The plan provides that the Forest Service will eliminate some of the existing pine plantations and replace them with hardwoods. Id. at IV-3, IV-12; Government Exhibit G4, Record of Decision, at 15-16. The plan's forestwide guidelines establish certain areas as priorities for this restoration process. Government Exhibit G1, Amended Land and Resource Management Plan, at IV-12. In other areas, existing pine plantations will be allowed to naturally regenerate to a hardwood/pine mix. Id. Ultimately, the plan envisions that 89 percent of the forest will be hardwoods, 4.5 percent will be a hardwood/pine mix, and 4.9 percent will be openlands. Government Exhibit G2, Final Supplemental Environmental] Impact Statement for the Amended Land and Resource Management Plan, at 4-106. Currently, 77.5 percent of the forest is hardwoods, 15.8 percent is pine, and 5.1 percent is openlands; none of the land is considered mixed hardwood/pine. Id.

 The Amended Forest Plan was adopted by Regional Forester Floyd Marita in 1992. *fn1" Government Exhibit G4, Record of Decision. The plaintiff filed a timely appeal, as did various other groups and individuals. The plaintiff also sought a stay of all "forest fragmenting activities" until the Chief of the Forest Service issued a decision on the appeal.

 The Forest Service refused to grant the stay, finding that the request did not meet the requirements of 36 C.F.R. 217.10(d). Government Exhibit H2, at 1. Section 217.10(d) provides that in order to obtain a stay, the appellant must include specific reasons why a stay should be granted, including "harmful site-specific impacts or effects on the resources in the area affected by the activity(ies) to be stopped . . . ." Thus, the Forest Service advised the plaintiff that he could not obtain a stay of all activities implementing the plan, but suggested instead that he "may wish to appeal decisions on specific projects or activities while we are reviewing your appeal of the Amended Forest Plan." Government Exhibit H2, at 2-3.

 Within two months after the Amended Forest Plan was approved by the regional forester, the Forest Service issued its decision notice approving ecological restoration and vegetative management in Opportunity Area 6. *fn2" Government Exhibit B1, Decision Notice and Finding of No Significant Impact. Based upon the Forest Service's environmental assessment, the agency found that the activities in Opportunity Area 6 would have no significant impact on the environment and, therefore, there was no need to do a more exhaustive environmental impact statement. Id.

 The plaintiff pursued an administrative appeal of this decision and requested a stay of the decision pending the appeal. Government Exhibit F3. A stay was ultimately granted by the regional forester. Government Exhibit F9. However, upon review of the plaintiff's appeal, the forest supervisor and the regional forester ultimately affirmed the decision to proceed in Opportunity Area 6 and the stay was subsequently lifted. Government Exhibits F13 and F28.

 In his pending lawsuit seeking judicial review of the decision, the plaintiff argues that the eradication of pine plantations in the Shawnee National Forest would violate the National Forest Management Act and the Forest Service's regulations implementing the NFMA because it would eliminate the viable populations of the pine warbler, which is a management indicator species for the forest. He further contends that the Forest Service violated the National Environmental Policy Act by failing to complete a full environmental impact statement before deciding to implement the ecological restoration program in Opportunity Area 6. Finally, the plaintiff argues that the Forest Service's denial of his request for a stay pending the appeal of the Amended Forest Plan was arbitrary and capricious.

 As part of his lawsuit, the plaintiff filed a motion for a preliminary injunction to stay all forest fragmenting activities pending the Forest Service's decision on his appeal of the Amended Forest Plan. In addition to the request for a blanket stay, the plaintiff specifically requested that the Court stay certain pending timber sales in Opportunity Area 6. Based upon the government's assurances that projects in Opportunity Area 6 were still under an administrative stay while a separate appeal was pending, the Court denied the motion as moot with respect to that project area. *fn3" The plaintiff renewed the motion after the other appeal was decided and the Forest Service announced plans to move forward with some of the projects.

 In the meantime, the Chief of the Forest Service ultimately affirmed the Amended Forest Plan. The decision, released on June 25, 1993, became the agency's final administrative determination when the Secretary of Agriculture declined to conduct a discretionary review pursuant to 36 C.F.R. §§ 217.7(e) and 217.17.

 II. ANALYSIS

 A. Motion for a Preliminary Injunction

 The plaintiff's renewed motion for a preliminary injunction, like his original motion, seeks relief from the Forest Service's refusal to grant a blanket stay of all forest-fragmenting activities. The Court, however, finds that the denial of the stay was proper under section 217.10 of the Forest Service regulations.

 Section 217.10(b) expressly states that "requests to stay the approval of land and resource management plans prepared pursuant to 36 CFR part 219 shall not be granted. However, requests to stay implementation of a project or activity included in that plan will be considered as provided for in [section 217.10(c)]." 36 C.F.R. § 217.10(b) (1992). Section 217.10(c) provides that the reviewing officer may consider granting a stay "where a project or activity would be implemented before an appeal decision could be issued . . . ." Id. § 217.10(c). Section 217.10(d) further states that to request a stay, an appellant must, inter alia,

 
provide a written justification of the need for a stay, which at a minimum includes the following:
 
(i) A description of the specific project(s), activity(ies), or action(s) to be stopped.
 
(A) The specific adverse effect(s) upon the requester;
 
(B) Harmful site-specific impacts or effects on resources in the area affected by the activity(ies) to be stopped; and
 
(C) How the cited effects and impacts would prevent a meaningful decision on the merits.

 Id. § 217.10(d)(3). Based upon these regulations, the agency correctly held that the plaintiff cannot get a blanket stay on implementation of the Amended Forest Plan; instead, he must request a stay on specific projects or activities.

 The plaintiff's pending motion for a preliminary injunction does not identify any specific projects that he wants stayed. He has merely provided a copy of a newsletter in which the Forest Service describes "a mix of projects" that it intends to pursue to implement the Amended Forest Plan. Moreover, there is no indication in the record that the plaintiff has sought an administrative stay or otherwise exhausted his administrative rights with respect to any specific projects other than the ecological restoration program in Opportunity Area 6.

 The plaintiff's request with respect to Opportunity Area 6 is properly before the Court. *fn4" However, because the Court has reached a decision on the merits of the plaintiff's claim regarding Opportunity Area 6, as set forth more fully in the following section, there is no need to consider whether a preliminary injunction should be issued. See Cronin v. United States Dep't of Agric., 919 F.2d 439 (7th Cir. 1990) (because the district court's function is merely to review the record compiled in an administrative proceeding, there generally is no interval between the preliminary and final consideration in the case and no need for a preliminary injunction). Accordingly, the plaintiff's motion for a preliminary injunction is DENIED AS MOOT.

 B. Cross-Motions for Summary Judgment

 The parties have filed cross-motions for summary judgment on the issues raised in the plaintiff's complaint. The plaintiff argues primarily that the decision to implement ecological restoration in the Amended Forest Plan and in Opportunity Area 6 is contrary to the National Forest Management Act and its implementing regulations. He further argues that the Forest Service violated the National Environmental Policy Act by failing to conduct a full-blown environmental impact statement before approving the Opportunity Area 6 projects.

 The government argues, as a preliminary matter, that the plaintiff's claims are barred because he failed to exhaust his administrative remedies. On the merits of the plaintiff's claims, the government argues that the Forest Service's actions were proper under both NEPA and the NFMA.

 Because this case involves judicial review of an agency's decision, the Court's resolution of this case is subject to a narrow standard. Under the Administrative Procedures Act, "agency actions may be overturned only if they are-- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . [or] (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. . . ." 5 U.S.C. § 706(2) (1988); Sierra Club v. Robertson, 810 F. Supp. 1021, 1025 (W.D. Ark. 1992). To determine whether agency action is arbitrary or capricious, the Court must consider "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989).

 The Court will first discuss the government's exhaustion argument, and then turn to an analysis ...


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