by an analysis of the biological, economic, social, and environmental design consequences of the conversion, as required by section 219.27(g) of the regulations. 36 C.F.R. § 219.27(g) (1992). This argument is also without merit. The record shows that the Forest Service conducted a thorough environmental analysis in its Final Supplemental Environmental Impact Statement for the Final Amended Plan. Id. Although the FSEIS was completed pursuant to the requirements of the National Environmental Policy Act, its findings and conclusions also meet the requirements of section 219.27(g). Based upon this analysis, the Forest Service determined that the ecological restoration program would provide a long-term benefit to the forest that outweighed any detriments to the pine warbler guild. Accordingly, the agency sufficiently justified the type conversion from pine plantations to hardwoods.
The plaintiff's final argument relating to the National Forest Management Act is that the ecological restoration program fails to comply with section 219.27(c) of the implementing regulations. Section 219.27(c) sets forth certain requirements for timber harvest and silvicultural practices for the forest, providing that no timber harvesting shall occur on unsuitable lands "except for salvage sales, sales necessary to protect other multiple-use values or activities that meet other objectives on such lands if the forest plan establishes such actions are appropriate." 36 C.F.R. § 219.27(c)(1) (1992). The Forest Service acknowledges that Opportunity Area 6 pine sales are in areas classified as unsuitable for timber production, but argues that the ecological restoration program qualifies under the exception for sales necessary to protect other multiple-use values. The Court agrees. As discussed earlier in this opinion, both the Amended Forest Plan and the Opportunity Area 6 decision call for harvesting the pine only for the purpose of eliminating the exotic pine species. Thus, the ecological restoration is allowed under section 219.27(c).
The plaintiff argues that the ecological restoration cuts are simply a subterfuge to circumvent the public's objections to below-cost timber sales. He argues that the ecological restoration cuts should be included in the Allowable Sale Quantity of the forest plan. The Government, however, argues that the Forest Service regulations, by definition, expressly exclude such projects from the ASQ. See 36 C.F.R. § 219.3 ("Allowable sale quantity: The quantity of timber that maybe sold from the area of suitable land covered by the forest plan for a time period specified by the plan.").
The plaintiff's chief complaint appears to be that categorizing pine sales under the ecological restoration program will camouflage the fact that such sales are being subsidized by the government. In other words, these sales are not considered "below cost" timber sales because they are scheduled for purposes of wildlife management, as opposed to timber production.
However, this is merely a complaint about public relations -- i.e., that the public is not informed about the true costs of this program. The argument has no relevance to the validity of the ecological restoration program under the National Forest Management Act or the Forest Service regulations. As demonstrated by the Court's discussion above, the Forest Service has fully complied with the applicable law in developing the ecological restoration program. How it pays for the program is a budgetary matter between the agency and Congress.
3. Compliance with the National Environmental Policy Act
The plaintiff argues that the Opportunity Area 6 decision violates the National Environmental Policy Act because the Forest Service refused to conduct a full-blown environmental impact statement. However the government argues that the environmental assessment on Opportunity Area 6 is sufficient because it is tiered to the Final Supplemental Environmental Impact Statement that was done in conjunction with the Amended Forest Plan. The Court agrees.
The Council on Environmental Quality regulations that implement NEPA expressly state that:
Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action.
40 C.F.R. § 1502.20; see also id. § 1508.28 ("tiering is appropriate when the sequence of statements or analyses is: (a) From a program, plan, or policy environmental impact statement ... to a site-specific statement of analysis."). Accordingly, the Seventh Circuit has held that once an environmental impact statement has been issued for a Forest Plan, the Forest Service generally is not required to prepare additional environmental impact statements for every site-specific project that is authorized under the Plan. Cronin v. United States Dep't of Agric., 919 F.2d 439, 447-48 (7th Cir. 1990).
Certain exceptions exist, such as where there are changed circumstances or new information. In those situations, the original environmental impact statement may not be adequate to assess the environmental impact of the new project and, therefore, a new statement must be prepared. Id. at 448. However, in this case, there is no showing that new circumstances or information have come to light. The Final Supplemental Environmental Impact Statement for the Amended Forest Plan fully recognized that the ecological restoration program authorized in the amended plan would eventually result in the eradication of the pine warbler population due to the elimination of the bird's habitat. The environmental assessment for Opportunity Area 6 concludes that the project would result in an 82 percent decline in the pine warbler habitat in that area. Obviously, this decline was envisioned in the environmental impact statement prepared for the overall plan amendment.
An agency's refusal to prepare an environmental impact statement is reviewed under the arbitrary and capricious standard. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989). Because the issue of ecological restoration was fully analyzed in the Final Supplemental Environmental Impact Statement for the Amended Forest Plan, the Court finds that the Forest Service did not act arbitrarily or capriciously by preparing an environmental assessment rather than a full environmental impact statement for Opportunity Area 6.
The arbitrary and capricious standard also applies to a court's review the agency's decision to go forward with a project after completing the environmental analysis required under NEPA. "The role of the courts [reviewing agency decisions under NEPA] is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. at 87, 97-98 (1983).
Neither the statute [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.... The only role for a court is to insure that the agency has taken a "hard look" at environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken."
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976) (citations omitted).
Based upon a careful review of the administrative record, the Court finds that the Forest Service has sufficiently identified, disclosed, and considered the environmental consequences of going forward with the projects in Opportunity Area 6. For the reasons set forth in the Court's analysis above under the National Forest Management Act, the Court further finds that the ultimate decision was not arbitrary and capricious.
In sum, the Court finds that the Forest Service's decision to implement the ecological restoration program in Opportunity Area 6 fully complied with NEPA and with the NFMA and its implementing regulations. Accordingly, the Court hereby GRANTS the government's motion for summary judgment and DENIES the plaintiff's motion for summary judgment.
C. Motion to Strike and for Sanctions
The plaintiff seeks to strike the government's motion for summary judgment and asks the Court to impose sanctions on the grounds that the government's arguments in support of the motion are not well-grounded in fact or warranted by existing law. He further argues that the defendants filed a 123-page memorandum of law (and attachments) in support of their motion "in an attempt to take advantage of the plaintiff's pro se status, to inappropriately supplement the Administrative Record in this cause, to mis-lead [sic] the Court, to circumvent the requirements of law, and to further their illegitimate goal to 'get the cut out.'"
The Court's discussion of the merits of this case demonstrates that the government's arguments in support of its motion for summary judgment were indeed well-grounded in fact and warranted by existing law. The Court similarly rejects the plaintiff's claim that the defendant's arguments were made to mislead the Court or to circumvent the requirements of law. In addition, based upon the complexity of the case and the volume of materials in the administrative record, the Court finds that the lengthy memorandum of law and supporting documents were warranted and were not intended to take advantage of the plaintiff's pro se status. In sum, the Court finds that the plaintiff's arguments in support of the motion to strike and for sanctions are without merit and the motion shall be DENIED.
For the foregoing reasons, the Court hereby DENIES the plaintiff's motion for summary judgment (Document No. 20) and GRANTS the government's motion for summary judgment (Document No. 23). Accordingly, the Court DIRECTS the Clerk of the Court to enter judgment in favor of the defendants and against the plaintiff.
The Court further DENIES the plaintiff's motion to strike and impose sanctions (Document No. 28) and DENIES AS MOOT the motion for a preliminary injunction (Document No. 30).
IT IS SO ORDERED.
James L. Foreman
SENIOR DISTRICT JUDGE