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Mahler v. United States Forest Service

November 3, 1997




Appeal from the United States District Court for the Southern District of Indiana, New Albany Division.

No. 96 C 119 -- Gene E. Brooks, Judge.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Argued September 17, 1997

Decided November 3, 1997

Andy Mahler brought this action in the district court under the Rescissions Act of 1995 (Pub. L. No. 104-19) and the Administrative Procedure Act (5 U.S.C. sec.sec. 701-06). He challenged the decision of the United States Forest Service and two of its officials to proceed with salvage timber sales under the provisions of the Emergency Salvage Timber Sale Program enacted in the Rescissions Act. Deciding the case on cross-motions for summary judgment, the district court held that the Secretary had complied with the requirements of the Rescissions Act for an environmental and biological assessment of the proposed timber sales. For the reasons set forth in this opinion, we now affirm the judgment of the district court.



The dispute between Andy Mahler and the United States Forest Service is based upon conflicting interpretations of sec. 2001(c) of the Rescissions Act. *fn1 Before turning to the facts of this case, therefore, it is helpful to consider an overview of the statute and, in particular, the circumstances that led to the enactment of the Rescissions Act.

Congress recognized that the increasing numbers of dead and dying trees in the Nation's forests posed a serious threat to the health of those forests. It saw great risk to forest land from fire, insect infestation, and disease and believed that removal of salvage timber should be accomplished expeditiously so that reforestation could rejuvenate our forests. See H.R. Conf. Rep. No. 104-124, 141 Cong. Rec. H8788-01, at H8795 (daily ed. Sept. 12, 1995). Accordingly, the Rescissions Act's "Emergency Salvage Timber Sale Program" provides the means to expedite both environmental and biological assessments in order to allow the Secretary *fn2 maximum flexibility for salvaging the greatest amount of timber while improving the health of the forest and reducing the risk of fire. Id. Under the Act, the Forest Service may propose a "salvage timber sale" as long as "an important reason for entry includes the removal of diseaseor insect-infested trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack." sec. 2001(a)(3).

In this case, it is undisputed that such a reason existed. A severe snowstorm, sweeping through southern Indiana in March of 1996, uprooted and damaged trees in three parts of the Hoosier National Forest -- the Shoals, Lilly Dale and Lick Creek areas. The Forest Service survey of the Tell City Ranger District of the Forest, where the three areas are located, revealed that the damage posed a threat of forest fire or plant pest and disease if the downed and damaged trees were allowed to dry out and die. The Service therefore sent a scoping notice to more than 900 members of the public (including Mr. Mahler) advising them of the proposal to salvage that timber and requesting comments. Mr. Mahler submitted his objections to the sales.

The Forest Service then reviewed the comments and analyzed site-specific reports concerning the environmental effects of the proposed sales on each area. The Decision Memo prepared for each sale included the following information: an aerial survey of the damaged areas, a biological evaluation ("BE"), a Karst Prescription (which maps and flags the protected "no-soil-disturbance/no-cutting" zones in which caves, sinkholes, swallow holes, karst springs or other karst features have been found, see II Admin.R. at 237-42), a cultural resources analysis, a report on the existing conditions of aquatic resources, and studies of the soils and tree types in each area.

On June 26, 1996, the Forest Service issued a BE that evaluated the potential effects of the proposed sales on all threatened and sensitive species identified as potentially having habitats within the timber sale areas. It found there were no federally threatened or endangered species or their habitats in those locations. Further analyses indicated that there were neither erosion-prone areas nor protected research natural areas in the three sites. The Forest Service concluded as well that the salvage timber sales would have no impact on cultural, archaeological or historic resources.

Because each salvage timber sale would harvest less than 1 million board feet of timber, the Service concluded that the sales qualified, under the National Environmental Policy Act ("NEPA"), for a categorical exclusion from documentation in an ...

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