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CURRY v. UNITED STATES FOREST SERV.

October 15, 1997

SUSAN CURRY, JAMES KLEISSLER, ARTHUR CLARK and HEARTWOOD, INC., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, MICHAEL P. DOMBECK, Chief Forester, United States Forest Service, ROBERT T. JACOBS, Regional Forester for the Eastern Region, United States Forest Service, and JOHN PALMER, Forest Supervisor for the Allegheny National Forest, United States Forest Service, Defendants.



The opinion of the court was delivered by: STANDISH

 I

 In this civil action, plaintiffs, Susan Curry, James Kleissler, Arthur Clark and Heartwood, Inc., seek judicial review under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., of a decision of defendant Robert T. Jacobs, Regional Forester for the Eastern Region of defendant United States Forest Service, affirming the decision of defendant John Palmer, Forest Supervisor for the Allegheny National Forest, to approve a project known as the "Mortality II Project," which involves sales of timber for logging from the Allegheny National Forest. Specifically, plaintiffs seek declaratory and injunctive relief, alleging that the proposed timber sales violate the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 701 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. *fn1" Presently, before the court are the parties' cross-motions for summary judgment. After consideration of the briefs of the parties, *fn2" as well as the administrative record in this case, the court concludes that (1) plaintiffs' motion for summary judgment should be granted in part as to their claims against defendants under the NFMA; (2) plaintiffs' motion for summary judgment should be granted as to their claims under NEPA, and (3) defendants' cross-motion for summary judgment should be granted as to plaintiffs' claim under the MBTA.

 II

 The following facts are undisputed:

 The Allegheny National Forest is located in Elk, Forest, McKean and Warren Counties in Northwestern Pennsylvania. The forest is comprised of 510,530 acres, including water areas. (Admin. Record, Folder D-3, Summary, p. i-iv). Plaintiffs Susan Curry (Curry), James Kleissler (Kleissler) and Arthur Clark (Clark) are residents of Clarion County, Pennsylvania, who utilize the Allegheny National Forest for study, as well as for recreational and aesthetic enjoyment. Curry and Kleissler devote much of their time and effort to the work of the Allegheny Defense Project, a regional organization that is dedicated, inter alia, to restoring the ecological integrity of the Allegheny National Forest.

 Plaintiff Heartwood, Inc. (Heartwood) is a non-profit Indiana corporation whose purposes include the protection of bio-diversity and ecosystem integrity on public and forested lands in Pennsylvania and the central hardwood region of the United States. Heartwood has members residing in the Commonwealth of Pennsylvania who have used and enjoyed the aesthetic and recreational opportunities afforded by the Allegheny National Forest in the past, and who wish to enjoy and use them in their present state in the future. Curry, Kleissler and Clark are members of Heartwood.

 Defendant United States Forest Service (the Forest Service) is an agency of the United States that is statutorily mandated to manage the National Forest System, including the Allegheny National Forest, in the public interest. The individual defendants are officials and employees of the Forest Service.

 The Allegheny National Forest is currently being managed under a Land and Resource Management Plan (the LRMP), which was adopted in 1986 by the Forest Service pursuant to the Forest and Rangeland Renewable Resources Planning Act (FRRRPA), as amended by the NFMA. *fn3" (Admin. Record, Folders D-1 and D-2). Under the LRMP, the Allegheny National Forest is divided into Management Areas, which are areas of land that have a common management direction to achieve a common goal. All Management Areas are described and policies and prescriptions relating to their use are listed in the LRMP. The Management Areas for the Allegheny National Forest are numbered 1, 2, 3, 5, 6.1, 6.2, 6.3, 6.4, 7, 8 and 9.1. (Admin. Record, Folder D-1).

 On February 5, 1997, defendant John Palmer, Forest Supervisor for the Allegheny National Forest, issued a Decision Notice and Finding of No Significant Impact (DN/FONSI), which approved a project known as the Mortality II Project. (Admin. Record, Folder A). Due to continued forest decline, this project "was developed to establish tree seedlings and provide a continuous flow of timber." *fn4" (Admin. Record, Folder A, DN/FONSI, p. 1). The DN/FONSI for the Mortality II Project authorizes tree harvesting on 4,775 acres of Management Area 3 through the use of "even-aged" management techniques and tree harvesting on 356 acres of Management Area 2 through the use of "uneven-aged" management techniques, which are defined in the Code of Federal Regulations as follows: *fn5"

 
§ 219.3 Definitions and terminology
 
* * *
 
Even-aged management : The application of a combination of actions that results in the creation of stands in which trees of essentially the same age grow together.... Clearcut, shelterwood, or seed tree cutting [cuts where all or a large percentage of trees in an area are harvested at one time] methods produce even-aged stands.
 
* * *
 
Uneven-aged management : The application of a combination of actions needed to simultaneously maintain continuous high-forest cover, recurring regeneration of desirable species, and the orderly growth and development of trees through a range of ... age classes to provide a sustained yield of forest products.... Cutting methods that develop and maintain uneven-aged stands are single-tree selection and group selection.
 
* * *

 36 C.F.R. § 219.3.

 The logging operations authorized by the Mortality II Project would result in an estimated harvest of 20.7 million board feet of sawtimber and pulpwood products in the first entry and 10.3 million board feet of sawtimber and pulpwood products in the second entry. *fn6" (Admin. Record, Folder A, DN/FONSI, pp. 3, 5-6). The DN/FONSI for the Mortality II Project also authorizes the application of herbicide treatments to eliminate unwanted understory vegetation, fencing to protect tree seedlings from deer, tree planting and road construction, reconstruction, restoration and obliteration. (Admin. Record, Folder A, DN/FONSI, Table A).

 Two alternatives were considered in the Environmental Assessment prepared by the Forest Service for the Mortality II Project. Alternative 1 involved no action, and Alternative 2 involved the proposed action. Alternative 2 was chosen because defendant Palmer concluded that this alternative would move the forest toward the desired future condition contained in the LRMP for the Allegheny National Forest using a variety of management techniques. In the section of the DN/FONSI titled "Rationale for the Decision," defendant Palmer states that he selected Alternative 2 based on the analysis and evaluation described in the Environmental Assessment for the Mortality II Project (Admin. Record, Folder A), the Final Environmental Impact Statement for Understory Vegetation Management (Admin. Record, Folder D-6), *fn7" and a review of the LRMP and its accompanying Final Environmental Impact Statement. (Admin. Record, Folders D-1, D-2, D-3 and D-4).

 On March 28, 1997, a notice of appeal from defendant Palmer's DN/FONSI was filed under 36 C.F.R. § 215 by Curry and Kleissler on behalf of the Allegheny Defense Project, James Bensman on behalf of Heartwood and Philip Coleman on behalf of the Sierra Club. (Admin. Record, Folder C-1). By letter dated April 2, 1997, the appellants were notified by defendant Robert T. Jacobs, Regional Forester for the Eastern Region of the Forest Service and the Appeal Deciding Officer with respect to their appeal, that an Appeal Reviewing Officer (ARO) was assigned to their appeal; that the ARO would review the appeal record and forward a written recommendation on the disposition of the appeal to defendant Jacobs, and that, by May 12, 1997, defendant Jacobs would issue a written decision concerning the disposition of the appeal. (Admin. Record, Folder C-2).

 By letter dated May 9, 1997, defendant Jacobs notified the appellants that the ARO found no evidence that defendant Palmer's DN/FONSI violated law, regulation or policy; that the ARO found that the DN/FONSI was consistent with the LRMP; that the DN/FONSI responded to public comments solicited during the analysis process and comment period; that the DN/FONSI adequately assessed the environmental effects of the selected action, and that the issues raised in the appeal were addressed, where appropriate, in the decision documentation. The ARO recommended that defendant Palmer's DN/FONSI be affirmed, and, after his review of the appeal record, defendant Jacobs concurred in the ARO's conclusions concerning the issues raised on appeal. The appellants were referred to the ARO's enclosed recommendation for an explanation of how the specific issues on appeal were addressed. *fn8" Defendant Jacobs' affirmance of the DN/FONSI of defendant Palmer constituted the final administrative determination with respect to the Mortality II Project. (Admin. Record, Folders C-5, C-6 and C-7).

 In their complaint in the present action, plaintiffs allege that the even-aged management techniques to be utilized on approximately 5,000 acres of the Allegheny National Forest under the Mortality II Project have the potential for significant adverse environmental effects, including impacts on wildlife and old growth forests. They further allege that the effects of the Mortality II Project will irreparably destroy the recreational, research and aesthetic values of the affected areas for plaintiffs and others who may visit these areas in the future.

 Plaintiffs assert claims against defendants under the NFMA, the MBTA and NEPA, seeking a declaration that defendant Palmer's DN/FONSI and its affirmance by defendant Jacobs were arbitrary, capricious and otherwise not in accordance with applicable law, implementing regulations and guidance documents. Plaintiffs also seek an order enjoining defendants from implementing the Mortality II Project and the proposed timber sales as approved in defendant Palmer's DN/FONSI until the Forest Service has (1) complied with the applicable provisions of the NFMA, the FRRRPA and their implementing regulations; (2) prepared an adequate Environmental Impact Statement; (3) studied, developed and described appropriate alternatives to the proposed actions; and (4) eliminated violations of the MBTA.

 III

 A

 Turning first to plaintiffs' claim against defendants under the MBTA, Section 703 of the MBTA provides in pertinent part:

 
Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, ... any ...

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