MORRIS SHEPPARD ARNOLD, District Judge.
The Sierra Club and others brought suit to enjoin timber sales by the Forest Service in several compartments of the Ouachita National Forest.
Intervenor defendants filed a motion for summary judgment premised on plaintiffs' failure timely to appeal the timber decision involving Oden compartment 1030 ("Oden"). In the opinion of this court, plaintiffs' failure to appeal the Oden decision in 1988 must bring to an end the action concerning Oden, for plaintiffs have failed to preserve the right to contest the Oden decision on the merits in this court.
Oden comprises 1,223 acres of National Forest land, 40 acres of which are slated for cutting. This plot of land has been the subject of much study and dispute. In 1988 the Forest Service released a Decision Notice which concluded that harvesting the trees in Oden would be consistent with the 1986 Forest Plan, the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347 ("NEPA"), and the National Forest Management Act, 16 U.S.C. §§ 1600-1614 ("NFMA"). None of plaintiffs filed a timely administrative appeal of the 1988 Decision Notice. After the new Amended Forest Plan became controlling in 1990, the Forest Service released an Environmental Assessment ("EA") Supplement in 1991. The Supplement concluded that the harvest was consistent with the Amended Plan and NFMA requirements, and that no Environmental Impact Statement specific to Oden was required.
The matter of the Oden appeal, or lack thereof, has come before the court once before, although in a slightly different posture. In a prior motion, plaintiffs sought a preliminary injunction against the Forest Service alleging that plaintiffs had been improperly denied the right to an administrative appeal, and sought to enjoin the Oden and Choctaw timber sales until an administrative appeal could be perfected. The court found that plaintiffs were provided with copies of the Decision Notices and had 45 days in which to appeal, but that no administrative appeal was taken from the original Oden timber sale decision. Because only decisions are appealable, see 36 C.F.R. § 217.3, the court also found that the Forest Service's issuance of the Supplement in 1991 was not appealable because it was not a decision. The court therefore concluded that plaintiffs had not been denied an administrative appeal regarding, in particular, the Oden timber sale. See generally this court's Order of July 3, 1991.
"The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law.... The doctrine provides `that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The Eighth Circuit has applied the exhaustion doctrine very strictly, denying relief where plaintiffs fail to perfect or even seek an administrative appeal. See, e.g., McAlister v. Secretary of the Department of Health and Human Services, 900 F.2d 157, 158 (8th Cir.1990); Watson v. Arkansas National Guard, 886 F.2d 1004, 1008 (8th Cir.1989); Madsen v. Department of Agriculture, 866 F.2d 1035, 1037 (8th Cir.1989).
The Supreme Court, however, has cautioned that the exhaustion doctrine is not to be applied blindly or inflexibly. McGee v. United States, 402 U.S. 479, 483, 91 S.Ct. 1565, 1568, 29 L.Ed.2d 47 (1971); McKart, 395 U.S. at 200-01, 89 S.Ct. at 1666. The Court has noted the "harsh impact" of the doctrine when it bars judicial review of a litigant's claim. McGee, 402 U.S. at 484, 91 S.Ct. at 1568. A trial court must therefore consider whether "the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." West v. Bergland, 611 F.2d 710, 715 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980). The court should not mechanically recite the broad interests usually served by the doctrine, but must assess the weight of the government's interest by "a discrete analysis of the particular default in question." McGee, 402 U.S. at 485, 91 S.Ct. at 1569. In undertaking this discrete analysis, the court should weigh several considerations:
Madsen, 866 F.2d at 1039 (Arnold, J., concurring in part, dissenting in part).
Here, the considerations just recited counsel dismissal of plaintiffs' claims. The Forest Service has been deprived of its administrative interest in developing facts and exercising discretion in this case. The agency should have been allowed to perform functions within its special competence, including specialized fact-finding, interpretation of disputed technical subject matter, and resolution of disputes concerning the agency's regulations. See West, 611 F.2d at 715. Plaintiffs claim violations of NEPA, NFMA, and Forest Service Regulations involving, e.g., silvicultural inventory requirements, floodplains and wetlands definitions, application of the concept of environmental "diversity," statistical sampling techniques, and use of a computer program called COMPPATS. Hence, the matters before the court involve application and interpretation of technical concepts and complex regulations most appropriately left to the expertise of the Forest Service, at least in the first instance.
Plaintiffs' failure to exhaust denied the agency an opportunity to make a factual record. See McGee, 402 U.S. at 484, 91 S.Ct. at 1568. "Permitting the agency to perform its `trial court' function not only serves interests in administrative autonomy and efficiency but also generally assists ultimate judicial review, if any should be necessary." West, 611 F.2d at 716. The failure to submit these matters to the agency first has made this litigation measurably more difficult, unfocused, costly, and lengthy. The agency's compilation of a record would have made subsequent appeals, if any, more efficient because of the agency's expertise in considering technical questions.
The Forest Service, moreover, could have benefitted from plaintiffs' appeal, had one been filed, because it would have had plaintiffs' comments on the agency's actions at a much earlier stage. The agency would have had a chance to consider plaintiffs' concerns and possibly adopt plaintiffs' suggestions, thus obviating the necessity of review. Challenging the agency action in the district court frustrates agency process because the opportunity for agency action has by then already passed. See id. Allowing judicial review in this instance, moreover, might encourage others to flout the administrative scheme, because granting an exception here might lead future
The court is bound, of course, to consider plaintiffs' interests and balance them against the governmental interests just enumerated. See id. at 718-20. In doing so, the court must consider the irreparable harm, if any, that will accrue to plaintiffs if the exhaustion doctrine is applied against them. See id. In their brief, plaintiffs make their entire substantive case for irreparable harm in one sentence: "In this case, once the timber is sold and cut and the even-aged
Upon reflection, the court finds that plaintiffs' injury is not irreparable as that word is used in this context. Plaintiffs are concerned about the possible loss of "diverse forest," vegetation, waterways, and wetlands, but the record does not show that the Oden sale will irreparably harm any of them. First, there are apparently no wetlands or waterways in the Oden cutting area, for, in the massive record that this case has generated, plaintiffs have not shown that any exist. The Forest Service has elected not to cut near perennial and intermittent streams and has resolved that they "will be managed primarily to maintain water quality." Oden EA Supplement at 4. In fact, the Forest Service will create three wildlife ponds in Oden. Id. at 2. Second, plaintiffs have not shown that the harm that will ensue is irreparable, since the record does not reveal that the forest cannot someday be returned to its original state.
In deciding whether irreparable harm has been shown, moreover, a court should consider the pine trees and other vegetation that will grow, and the game species that will benefit from clearing the undergrowth, in addition to the particular gum trees that will be cut down. In other words, a court ought to examine the record to determine whether it shows that a net harm will occur. Although some vegetation will be removed, the vegetation will be replaced: Some trees will be cut; new trees will grow in their place. Some prescribed burning is planned to enhance wildlife habitat, and there is evidence that the animals hunters pursue will thrive in the wake of the harvest. The court cannot conclude that any net harm will ensue from the Forest Service's contemplated activities. Plaintiffs have assumed in this case the role of quintessential conservatives, preferring no changes whatever in the Ouachita National Forest. For plaintiffs, irreparable harm results when any gum tree is cut or road is built. Plaintiffs' wish, however, collides with the multiple uses that Congress has endorsed for the national forests in NFMA.
Diversity is a requirement of NFMA, moreover, and pursuant to this requirement the Forest Service has considered diversity in the Oden sale. According to NFMA, the Forest Service must create regulations to provide for the diversity of plants and animals. The regulations must provide, "where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan." 16 U.S.C. § 1604(g)(3)(B); see 36 C.F.R. § 219.27(b). A review of the Oden EA and Supplement demonstrates that the Forest Service considered diversity in the Oden compartment specifically. See generally Oden EA and EA Supplement; see also infra, Section IV.B.5. The Forest Service has considered diversity at both the forest plan and compartment level and has planned for its preservation, and therefore no irreparable harm to diversity should result.
The court must also consider the fairness of requiring exhaustion under the particular circumstances. Madsen, 866 F.2d at
Intervenor defendants have also asked for judgment regarding plaintiffs' challenge of another timber sale, for, they claim, plaintiffs have preserved only one issue for review by this court. Choctaw compartments 92, 93, and 94 ("Choctaw") comprise 4,448 acres in the Northwest Walker Mountain Area near Heavener, Oklahoma. In Choctaw, the Forest Service has planned 61 acres of timber harvesting with shelterwood and seedtree regeneration
Although an administrative appeal of the Choctaw decision was perfected, the principle of exhaustion applies to the plaintiffs' claims regarding the Choctaw compartments as well. Mr. Rushing appealed six issues,
The foregoing analysis is sufficient to dispose of plaintiffs' motion, with the exception of their diversity claim with respect to Choctaw. The court, however, will address the entirety of plaintiffs' motion for preliminary injunction on the merits, for the sake of completeness and efficiency, in order to arrive at an alternative holding.
Although plaintiffs applied to this court for a preliminary injunction, the issue before this court is not whether a preliminary injunction should issue, but whether the Forest Service's Oden and Choctaw timber sales decisions pass muster under an arbitrary and capricious standard of review. See Cronin v. United States Department of Agriculture, 919 F.2d 439, 445 (7th Cir.1990). The injunction that plaintiffs seek is not preliminary to anything, because plaintiffs are not entitled to a hearing on a motion for permanent injunction; the record is complete and this case merely involves the review of that administrative record. The plaintiffs had requested a hearing to produce evidence in support of their motion for preliminary injunction. No hearing was held, however, because such a hearing was and is unnecessary. "[T]he district court must ... determine the merits of Sierra Club's claims by focusing on the administrative record on which the agency based its decision, not on some new record compiled initially in the reviewing court." Sierra Club v. United States Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir.1985). The district court's review is limited to the record before the agency. "In such a suit the district court is a reviewing court, like [the appellate] court; it does not take evidence." Cronin, 919 F.2d at 443. "A federal court is confined to the administrative record ... unless the plaintiff can make a `strong showing of bad faith or improper behavior.'" Maxey v. Kadrovach, 890 F.2d 73, 77 (8th Cir.1989) (per curiam), cert. denied, 495 U.S. 933, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990), quoting Corning Savings and Loan Association v. Federal Home Loan Bank Board, 736 F.2d 479, 481 (8th Cir.1984). No such showing was made here. Plaintiffs, therefore, are simply entitled to have the district court review the administrative record upon which the Forest Service based its decision and determine whether, applying an arbitrary and capricious standard, the agency action was legal. Cronin, 919 F.2d at 443-45.
Regarding the technical questions now confronting this court, trained agency specialists are better equipped to select, hear, digest, and weigh the relevant evidence. For this reason, "it is imprudent for the generalist judges of the federal district courts ... to consider testimonial and documentary evidence bearing on those questions unless the evidence has first been presented to and considered by the agency." Id. at 444. If the agency acted improperly, the remedy "is to order the agency to hold a proper hearing — not for the court to hold the hearing itself." Id. This court's task is not to weigh the evidence independently and reach its own findings. The role of the reviewing court is to ensure that the agency takes a "hard look" at the environmental consequences of its actions, and the court must not substitute its own judgment for that of the agency. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). As the Supreme Court has said:
Florida Power and Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985).
Before reviewing the history of the specific timber sales at issue and the resulting dispute, it would be useful to review the regulatory scheme. In rendering a timber sale decision, the Forest Service must give effect to numerous statutes, regulations, and executive orders. Congress passed NEPA and NFMA, and to these schemes of complex rules the executive branch has added additional layers. For example, the Council on Environmental Quality has issued regulations enforcing NEPA ("NEPA Regulations") and the Forest Service has issued regulations enforcing NFMA ("NFMA Regulations"). In addition, two Executive Orders address floodplains and wetlands.
NEPA requires an Environmental Impact Statement ("EIS") from agencies contemplating "major" actions "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i). NEPA also requires consideration of the following: The unavoidable adverse environmental effects of a proposed action; possible alternatives to the action; the relationship between short-run effect on the environment versus the long-run impact on productivity; and any irreversible and irretrievable commitments of resources effected by the action. 42 U.S.C. § 4332(2)(C)(ii)-(v). NEPA Regulations also apply to the EIS process. See, e.g., 40 C.F.R. §§ 1501.4, 1502, and 1508.11. In order to determine whether an action might have a significant impact on the environment, an agency will often prepare the more limited EA. Creation of an EA is governed by certain NEPA Regulations. 40 C.F.R. §§ 1501.2-1501.4. Only if the EA finds a significant impact would an EIS be required. If the EA finds no significant impact, the agency then issues a FONSI. 40 C.F.R. § 1508.13.
NFMA is also of importance to the timber harvesting regulatory scheme. NFMA requires the Forest Service to develop land and resource management plans for units of the National Forest System. 16 U.S.C. § 1604(a). For each unit of the National Forest System, an interdisciplinary team prepares an integrated plan based on "inventories" of forest resources. In NFMA, Congress directed the Forest Service to write regulations encompassing manifold purposes, including placing limits on the harvesting of timber on federal land administered by the Forest Service.
Each national forest has its own NFMA forest plan and its own EIS. The EIS in such a case is "programmatic" because it is issued along with the NFMA-mandated forest plan. See Ventling v. Bergland, 479 F.Supp. 174, 176 (D.S.D.1979), aff'd without opinion, 615 F.2d 1365 (8th Cir.1979) ("The concomitant EIS [issued with the Plan] is therefore of the `programmatic' variety required when a series of actions will have a cumulative or synergistic environmental impact"). In this case, therefore, the court must consider not merely an EIS, but a programmatic EIS for the whole Ouachita forest and the concomitant EA evaluating the individual timber sale. The programmatic EIS here is called the FSFEIS.
The programmatic nature of the FSFEIS is significant. Although NEPA requires an EIS for every project significantly affecting the environment, the Eighth Circuit has noted that a well-prepared programmatic EIS may obviate the need for a particularized, site-specific EIS:
Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1323 n. 29 (8th Cir.1974) (en banc). "Although a programmatic EIS may often be inadequate relative to an individual action, there is no reason to require a site-specific statement that would merely duplicate the programmatic EIS." Ventling, 479 F.Supp. at 179; see also Cronin, 919 F.2d at 447 ("once an environmental impact statement has been issued for a project, the project can be carried out without the agency's having to issue a new statement for every stage of the project"). NEPA Regulations require a subsequent EIS only when significant environmental impacts were not adequately evaluated in the programmatic statement. 40 C.F.R. § 1502.9(c)(1). The Forest Service may use an EA to evaluate whether the project is consistent with the programmatic EIS and whether another EIS is necessary. See 40 C.F.R. § 1508.9(a).
Plaintiffs want to restrain the Forest Service from "even-aged management"
In 1986 the Forest Service approved the final land and resource management plan for the Ouachita National Forest ("1986 Plan") pursuant to NFMA and released an accompanying final environmental impact statement ("1986 FEIS") pursuant to NEPA. In 1990 the Forest Service approved an amended land and resource management plan ("Amended Plan") which superseded the 1986 Plan, and issued a final supplement to the 1986 FEIS ("FSFEIS"). Some of the plaintiffs filed an administrative appeal to the Forest Service Chief regarding the Amended Plan and FSFEIS. The Forest Service Chief upheld both the Amended Plan and the FSFEIS in an appeal decision dated April 14, 1991.
In 1990, the Forest Service released a final EIS analyzing vegetation management alternatives for the Ouachita, Ozark, and St. Francis National Forests ("VMFEIS") and selected a vegetation management program pursuant to a record of decision ("VMROD"). The VMROD amends the Ouachita Plan's approach to herbicide use. Some plaintiffs filed an administrative appeal of the VMFEIS and the VMROD to the Forest Service Chief. The Chief upheld the VMFEIS and VMROD in an appeal decision dated April 16, 1991.
As noted earlier, Oden comprises 1,223 acres of National Forest land, located near the town of the same name in west-central Arkansas. In Oden, the Forest Service plans to allow timber harvesting by the shelterwood method on 40 acres with concomitant road construction, 122 acres of timber thinning to control the number of trees per acre, and other wildlife and timber stand improvement. Herbicides will be used where trees were harvested previously.
In 1988 the Forest Service released an EA for Oden 1030 corresponding to the 1986 FEIS, and a Decision Notice that concluded that the harvest would be consistent
As mentioned previously, the Choctaw cut is in a set of compartments near Heavener, Oklahoma. The Forest Service has planned to cut 61 acres of timber and to regenerate a pine forest through the shelterwood and seedtree methods. The agency will burn off undergrowth to improve wildlife habitat, but there will be no herbicide use. In 1990 the Forest Service released a Decision Notice, EA, and FONSI, and when the new Amended Forest Plan became controlling in 1990, the Forest Service released an EA Supplement. As was the case with Oden, the EA Supplement concluded that the Forest Service's decision was consonant with the Amended Plan, NEPA, and NFMA requirements, and that no Environmental Impact Statement was necessary.
The scope of review of an agency decision is a narrow one, for the court must simply determine whether the Forest Service took a "hard look" at the relevant factors and reached a decision that was neither arbitrary nor capricious. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 416, 91 S.Ct. 814, 822, 823, 28 L.Ed.2d 136 (1971). "Marsh establishes that when an agency determines not to prepare an EIS based on its review of the environmental impact of a project, as when it has already prepared an EA and issues a finding of no significant impact, a reviewing court reviews that determination under the arbitrary and capricious standard." Goos v. Interstate Commerce Commission, 911 F.2d 1283, 1292 (8th Cir.1990). There is no doubt, moreover, that the arbitrary and capricious standard applies to NFMA review as well. "A decision to pursue even-aged management as the over-all management plan under the NFMA is subject to the narrow arbitrary and capricious standard of review." Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 212 (5th Cir.1978), cert. denied, 439 U.S. 966, 99 S.Ct. 455, 58 L.Ed.2d 425 (1978). The review under the arbitrary and capricious standard considers "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh, 490 U.S. at 378, 109 S.Ct. at 1861, quoting Citizens to Preserve, 401 U.S. at 416, 91 S.Ct. at 824. "This inquiry must `be searching and careful,' but `the ultimate standard of review is a narrow one.'" Id.
In addition, some of plaintiffs' concerns involve statutory or regulatory interpretation. The court must defer to the Forest Service's construction of the statute it administers, unless the plain statutory language is to the contrary. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). In particular, where the legal issue is the meaning of the Forest Service's own regulations, the agency's interpretation is controlling where it is not plainly erroneous or inconsistent with the regulation. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989). Finally, although the court must engage in a "`thorough, probing, in-depth review,'" the Forest Service's actions are entitled to a "`presumption of regularity.'" See Ringsred v. Dole, 828 F.2d 1300, 1302 (8th Cir.1987), quoting Citizens to Preserve, 401 U.S. at 415, 91 S.Ct. at 823.
Plaintiffs advance five arguments in support of their prayer for an injunction. First, they assert that the EIS based on the 1986 Plan, the FSFEIS based on the 1990 Amended Plan, and the Oden EA and EA
1. NEPA Violations
Plaintiffs claim that the FSFEIS based on the 1990 Amended Plan, and the Oden EA and EA Supplement, are inadequate to allow the agency to proceed with the Oden timber sale. In particular, plaintiffs argue that neither the EA nor the EIS contains sufficient information for the Forest Service properly to decide between a finding of significant impact for the timber sale at issue. Pl. Br. at 9-13. Plaintiffs seem to claim that an EIS analyzing site-specific consequences is necessary for each timber sale decision such as Oden. Pl. Br. at 9-12.
This conclusion seems to the court to be clearly wrong. Rather, the court must determine whether the EIS contemplated the kinds of timber harvesting covered by the EAs, and whether the timber cutting described in the EIS differs significantly from the timber cutting in the EAs, either because the circumstances or the policy changed. NEPA requires federal agencies contemplating a major federal action significantly affecting the quality of the human environment to prepare a "detailed statement" discussing the following five procedural considerations: (1) the environmental impact of the proposed action; (2) any adverse economic effects which cannot be avoided should the proposal be implemented; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources which would be involved if the proposed action should be implemented.
The shelterwood technique contemplated for Oden was anticipated in the FSFEIS. See, e.g., FSFEIS at II-60 (Preferred Alternative W). Hence, the Oden EA is consistent with the FSFEIS. Furthermore, each of the five areas required by 42 U.S.C. § 4332(2)(C) was discussed in the FSFEIS. See FSFEIS at IV-1 to IV-53 (the environmental impact of the proposed action), IV-58 (adverse economic effects which cannot be avoided should the proposal be implemented),
Nothing appears to be arbitrary or capricious in the Forest Service's documentation of NEPA concerns. Rather, the FSFEIS appears to be a good-faith analysis of the relevant environmental matters. The EA conforms to NEPA Regulations requiring only "brief discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b). It describes the timber sale area, alternatives to the proposed action, and the environmental consequences of each alternative. In particular, the EA discusses the environmental impact on plant and animal diversity, water quality and soil productivity, the use of herbicides, and the effect of new roads. The alternatives considered included no activity, clearcutting, uneven-aged management, and two options which consisted of a mixture of even-aged and uneven-aged techniques. Through the use of "tiering,"
The burden is on plaintiffs to show that specific environmental issues requiring an EIS were ignored in the EA, or their claim must fail. See Olmstead Citizens for a Better Community v. United States, 793 F.2d 201, 204 (8th Cir.1986). Here, plaintiffs have not shown that the timber cutting described in the EIS differs significantly from the timber cutting in the EAs, either because the circumstances or the policy changed. Plaintiffs have not shown that the FSFEIS did not anticipate the even-aged management scheme contemplated in the Oden sale, or that Oden differs from the rest of the forest analyzed in the FSFEIS. Plaintiffs have failed to raise specific shortcomings in the EA sufficient to overcome the deferential arbitrary and capricious standard of review. Nor have the plaintiffs persuaded the court that the FSFEIS and the EA do not supply the information reasonably necessary to enable a decision-maker to consider environmental consequences and to make a reasoned decision.
2. Separate Assessments of Even-Aged Harvesting
Plaintiffs advance two arguments that the Forest Service misapplies NFMA's
Second, plaintiffs protest that the agency correctly considers the "appropriateness"
Despite plaintiffs' suggestion, however, there is no specific requirement in NFMA that a separate analysis be made of the even-aged technique itself, or that the other clauses of 16 U.S.C. § 1604(g)(3)(F)(ii)-(v) must apply to the stand rather than the compartment. Plaintiffs' reading of the statute is creative, and the court understands plaintiffs' argument that the agency applies the statute unevenly, but the court concludes that the Forest Service is entitled to its interpretation.
The Forest Service administers NFMA. The standard of review is especially deferential when a court reviews an agency's construction of a statutory scheme under its care. See Chevron, 467 U.S. at 842-45, 104 S.Ct. at 2781-83. "The NFMA is a set of outer boundaries within which the Forest Service must work. Within its parameters [sic], the management decision belongs to the agency and should not be second-guessed by a court." Texas Committee, 573 F.2d at 210. The Forest Service has not read into NFMA a requirement that even-aged cutting be assessed separately from other environmental effects, nor does it believe that it need apply the NFMA provisions evenly between the stand and the compartment. Plaintiffs' statutory preference has not been adopted by the Forest Service, and will not be adopted by this court because the Forest Service is not clearly wrong. Upon reviewing the EA and FSFEIS, moreover, the court is convinced that the Forest Service has correctly applied the provisions of 16 U.S.C. § 1604(g)(3)(F) as it has interpreted them.
3. Inventory Requirements of NFMA
Plaintiffs argue that certain inventory deficiencies exist in the Forest Service's data. They assert that the Forest Service erred in (1) basing inventory on the canopy instead of the forest floor, which overestimates pines to the disadvantage of other trees; (2) improperly determining the age of the stand; (3) failing to inventory rare and endangered species and Arkansas "sensitive species"; (4) failing to inventory plant species; and (5) producing an inventory that is basically a "timber inventory." Pl. Br. at 22-27. The purpose for this attack on the inventory methodology appears to be that the inventory information is "an insufficient basis for the determination of the appropriateness of even-aged practices." Pl. Second Amended Complaint at 21-22.
Plaintiffs' claim must fail because the Forest Service has considerable discretion in inventorying and plaintiffs have failed to persuade the court that the inventory has shortcomings that clearly violate the arbitrary and capricious standard.
36 C.F.R. § 219.12(d). By specifying "best available data," it appears that the regulation intends that the interdisciplinary team have access to the best data available in the agency, not some ideal type of data, because the EA is supposed to be brief, 40 C.F.R. § 1508.9, and "low-budget," Cronin v. United States Department of Agriculture, 919 F.2d 439, 443 (7th Cir.1990). NEPA, as well, does not "specify the quantum of information that must be in the hands of a decisionmaker." Alaska v. Andrus, 580 F.2d 465, 473 (D.C.Cir.1978), vacated in other part, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). Of course, the Forest Service, as an agency of trained specialists, must have the discretion to determine what the best information is.
Plaintiffs attack the Continuous Inventory of Stand Condition database, the COMPPATS computer simulation program, and the Forest Service's methodology in compiling the inventory. Pl. Br. at 25; Pl. Third Amended Motion at 10. Specifically, plaintiffs argue that the inventory information is inadequate because it "does not scientifically sample among all trees on the stand" and "does not agree with the best information available." Pl. Br. at 25. They assert that the inventory is biased in favor of counting the taller trees and pine trees in particular. Id. They also assert that the Forest Service failed adequately to inventory wetlands, floodplains, and watersheds, as well as threatened, endangered, and sensitive species. Id. at 24-27.
Based on the record, plaintiffs' claims are unpersuasive. Indeed, there are no wetlands, floodplains, or watersheds in the cutting area,
The scientific nature of this inventory dispute, moreover, appeals to this court's sense of caution. Even if plaintiffs' assertions were persuasive — and they are not — this court may not substitute its judgment on scientific methodology for that of the Forest Service. "When specialists express competing views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh, 490 U.S. at 378, 109 S.Ct. at 1861. It is not this court's function to resolve disagreements between experts or to judge the merits of competing views. Oregon Environmental Council v. Kunzman, 817 F.2d 484, 496 (9th Cir.1987). Therefore, "[t]his court declines
4. Wetlands and Floodplains Regulations
Plaintiffs assert numerous Forest Service definitional errors regarding wetlands and floodplains. They claim that the Forest Service has defined the floodplain the same as a riparian zone in the EIS and EAs, and that the floodplain is not specifically considered in the FSFEIS. They also argue that the Forest Service has represented increased water yields from timber harvesting as a benefit in order to favor even-aged management. Pl. Br. at 27-32. Plaintiffs assert, moreover, that the Forest Service has failed to comply with Executive Orders regarding definition of wetlands. In addition, plaintiffs claim that the misdefinitions are also violations of both NFMA, see 16 U.S.C. §§ 1604(g)(3)(A), 1604(g)(3)(E)(i), 1604(g)(3)(E)(iii), and Forest Service Regulations, see 36 C.F.R. §§ 219.23(c), 219.23(f). Pl. Br. at 32-35.
Although the considerations addressed in the inventory claims might well apply here, there is a more fundamental difficulty with plaintiffs' water-related claims, because the Forest Service concluded that Oden contains neither wetlands nor floodplains. Oden Decision Notice at 4; Oden EA Supplement at 7; Oden FONSI at 13, para. 2. Indeed, plaintiffs adduce no proof of floodplains or wetlands in the Oden compartment, but merely presume their existence. In fact, the timber sale area does not include the perennial and intermittent streams in the area, which will henceforth be managed primarily to maintain water quality. Oden EA Supplement at 4. Because there is no showing whatsoever that the Forest Service's definitions or misdefinitions are relevant to plaintiffs' motion for injunctive relief, such arguments cannot serve as a basis for enjoining the Oden timber sale.
Finally, plaintiffs claim that the Forest Service has not adequately analyzed the effect on the diversity
Plaintiffs also fear that even-aged management will create a pine forest monoculture in Oden. Pl. Br. 37-39. The court, after reading the administrative record, believes this fear to be unfounded. For example, the Oden EA Supplement requires,
In order to stop even-aged management in Choctaw, plaintiffs advance the same five arguments in support of their prayer for an injunction against the timber sale in that compartment. To recapitulate, they are: (1) the failure of the EIS, EA, and EA Supplement to follow standards set by NEPA; (2) the violation of the NFMA provision that plaintiffs argue requires that the effects of even-aged timber harvesting be assessed separately from other actions planned in the sale area; (3) the disregard of the inventory requirements of NFMA; (4) the improper definition of wetlands and floodplains; and (5) the failure to preserve diversity. The court need not review each of these matters in the same depth as above. Only those relating to NEPA, wetlands, and diversity must be examined with regard to Choctaw, because plaintiffs' reading of NFMA and the inventory requirements has already been addressed and resolved.
1. NEPA Violations
Regarding NEPA standards, the court must determine whether the timber cutting described in the Choctaw EA and EA Supplement differs significantly from the timber cutting dealt with in the EIS, because either the circumstances or the policy have changed. Upon consideration of the record, the court concludes that the seedtree and shelterwood regeneration scheme selected for Choctaw was contemplated and analyzed in the FSFEIS. See, e.g., FSFEIS at II-60. Hence, the decision to use these methods in Choctaw is consistent with the FSFEIS. Plaintiffs' general (and rather vague) argument that the information in the FSFEIS, the EA, and the EA Supplement is inadequate or incomplete is not evident upon a review of the record. The Forest Service, to whose expertise this court must defer, has selected the information, and the information upon which it bases its decision in Choctaw does not appear arbitrary and capricious to this court. Therefore, plaintiffs have failed to raise a substantial environmental issue requiring a site-specific EIS.
2. Wetlands and Floodplains Regulations
Although there is some water in the Choctaw compartment, it has been excluded from the timber-cutting area. The EA Supplement states:
Choctaw EA Supplement at unnumbered page 7. There are no affected wetlands (other than the aforementioned streams) in the Choctaw area. Choctaw EA at unnumbered page 7; Decision Notice at unnumbered page 3, # 6. Plaintiffs nowhere dispute that the Forest Service removed the water sources from the cutting area, or that a change in the floodplains or wetlands definitions would make any difference, material or otherwise, that would affect the validity of the agency's decision. Rather, they appear to request the court to rule as a matter of law that the definitions of wetlands and floodplains are legally deficient.
Finally, the court must consider the only argument that the plaintiffs have advanced that is clearly before the court. See Section II, supra. As discussed above, NFMA Regulations provide that diversity must be considered throughout the planning process, that inventories must include data necessary to evaluate diversity, and that diversity must be considered for each planning alternative. 36 C.F.R. § 219.26. In particular, "[r]eductions in diversity of plant and animal communities and tree species from that which would be expected in a natural forest, or from that similar to the existing diversity in the planning area, may be prescribed only where needed to meet overall multiple-use objectives." 36 C.F.R. § 219.27(g). Management prescriptions, such as even-aged timber cutting, where appropriate and practical, must "preserve and enhance" the diversity of plants and animals. Id.
The Choctaw EA and EA Supplement both consider diversity and conclude that diversity will be enhanced by the selected timber option. Diversity is separately addressed for each alternative in the EA. See EA, Environmental Consequences at unnumbered pages 19-24, Cumulative Effects Analysis at unnumbered pages 25-26. In particular, for the alternative contemplating even-aged management, the EA concludes that diversity, on balance, will increase because certain animal species will benefit from the timber clearing, e.g., white-tailed deer, harvest mice, wild turkey, and bobwhite quail. EA at unnumbered page 20. The diversity of plants will increase as well because "new regeneration areas will result in more sunlight reaching the Forest floor and thus increase herbaceous vegetation." Id. On a more technical note, plaintiffs assert that the Forest Service considers only "beta diversity" (diversity between the stands), and not "alpha diversity" (diversity within the stand). Pl. Br. at 37. This assertion is incorrect, for the agency discusses both alpha and beta diversity in the EA Supplement. Choctaw EA Supplement at unnumbered page 8. The court notes with concern, however, that diversity was not mentioned specifically in the Choctaw Decision Notice, or the NFMA Findings of the EA Supplement, as a basis for choosing the even-aged alternative. But in light of the substantial consideration diversity received in the EA and EA Supplement, the court does not regard this oversight as fatal to the Choctaw decision.
Ultimately, plaintiffs in this action want the court to substitute its discretion for that of the Forest Service in order to halt even-aged management techniques in the Ouachita. To do so, however, would be improper, for the agency's decisions satisfy the arbitrary and capricious standard of review. Plaintiffs' motion for an injunction will therefore be denied.
It is arguable that Mr. Rushing's contentions regarding water runoff are closely related to the wetlands and floodplains arguments made in the instant action. Mr. Rushing argues:
Statement of Reasons for Appeal, Letter from Mr. Rushing to Mike Curran, Forest Supervisor, Ouachita National Forest. While this argument is related to one claim plaintiffs present here, it is premised on a different legal theory and hence not sufficiently related to credit plaintiffs with having administratively appealed the issue.
Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1299-1300 (8th Cir.1976) (en banc), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977) (emphasis in original).
40 C.F.R. § 1502.20; see also 40 C.F.R. § 1508.28 (Terminology and Index — Tiering).