United States District Court, W.D. Pennsylvania
November 22, 2005.
ALLEGHENY DEFENSE PROJECT, Plaintiff,
DALE BOSWORTH, Chief, et al., Defendants.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
Pending is Plaintiff's, Allegheny Defense Project's ("ADP"),
Motion to Strike Post Hoc Documents (Docket No. 26) and Motion
for Summary Judgment (Docket No. 31). Plaintiff's Motion for
Summary Judgment seeks a permanent injunction preventing
Defendants, Dale Bosworth, United States Forest Service ("USFS"),
Kevin B. Elliot, John Schultz, and Leon Blashock, from bidding,
awarding, allowing any logging, or otherwise proceeding in any
way with the timber sales from the proposed 19 individual salvage
logging projects"*fn1 in the Allegheny National Forest
("ANF") until Defendants comply with the law. (Docket No. 31, p.
2). Specifically, Plaintiff asserts that Defendants violated the
National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, by
improperly excluding from the NEPA process 19 decisions to log
approximately 1700 acres of salvage as the result of a single
storm event that occurred on July 21, 2003. Defendants and
Intervenors have filed Responses. (Docket Nos. 39, 40 and 41).
ADP has filed a Response thereto. (Docket No. 53). Based on my opinion as more fully set
forth below, the Motion to Strike (Docket No. 26) is granted in
part and denied in part, and the Motion for Summary Judgment is
OPINION AND ORDER OF COURT
I. Motion to Strike Post Hoc Documents (Docket No. 26)
ADP requests that this Court strike portions of the
administrative record. (Docket No. 26). Specifically, ADP
requests that this Court strike the entirety of Book 38 and Tab
12 of Book 39. (Docket No. 26). According to ADP, these documents
were issued after the challenged decisions were rendered in this
case. (Docket No. 27, p. 2). Consequently, ADP asserts that said
documents may not be reviewed by this Court and must be stricken
as improper post hoc explanation documents. (Docket No. 27).
In response to the document at Tab 12 of Book 39, Defendants
argue that the information contained within the document was
before the agency when it made its decisions on some of the
projects. (Docket No. 41, p. 1). The document is titled
"Endangered and Threatened Species Monitoring On the Allegheny
National Forest (Fiscal Year 2003) Compliance with the Terms and
Conditions In the Biological Opinion." (Docket No. 47, Book 39,
Tab 12). The document is dated July 2004. After a review of the
record, it appears as though this document was available for
consideration during some of the decisions made on the 2003
windstorm salvage logging projects.*fn2 (Docket No. 32, Ex.
4). Thus, I find that it was properly designated by the USFS as
part of the administrative record. Therefore, ADP's Motion to
Strike Tab 12 of Book 39 of the Administrative Record is denied. With regard to Book 38, Defendants acknowledge that these
materials post date the challenged decision; however, because ADP
was seeking a preliminary injunction, Defendants included said
materials as it relates to irreparable harm. (Docket No. 41, pp.
1-2). Since this Court has already ruled upon the Motion for
Preliminary Injunction and no appeal was taken therefrom, and
because these documents are not directly cited to by Defendants
in support of the opposition to the Motion for Summary Judgment,
ADP's Motion to Strike Post Hoc Document Book 38 from the
administrative record is granted.
II. ADP's Motion for Summary Judgment (Docket No. 31)
A. Standard of Review for Motions for Summary Judgment
Summary judgment may only be granted if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c). Rule 56 mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against the party
who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, this Court must
examine the facts in a light most favorable to the party opposing
the motion. International Raw Materials, Ltd. v. Stauffer
Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on
the moving party to demonstrate that the evidence creates no
genuine issue of material fact. Chipollini v. Spencer Gifts,
Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine
if the evidence is such that a reasonable jury could return a
verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is material when it might
affect the outcome of the suit under the governing law. Id.
Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its burden
by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient
to carry the non-movant's burden of proof at trial. Celotex,
477 U.S. at 322. Once the moving party satisfies its burden, the
burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing
that there is a genuine issue for trial. Id. at 324. Summary
judgment must therefore be granted "against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." White v. Westinghouse
Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting,
Celotex, 477 U.S. at 322.
B. Scope of Review
All parties agree that the scope of my review is governed by
the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq.
See, Docket No. 32, pp. 3-4; Docket No. 40, p. 12; and Docket
No. 39, pp. 2-3. Pursuant to the APA, the scope of my review is
to determine whether the agency action was: "(A) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law; (B) contrary to constitutional right,
power, privilege, or immunity; . . . [or] (D) without observance
of procedure required by law. . . . 5 U.S.C. § 706(2).
[T]he generally applicable standards of § 706 require
the reviewing court to engage in a substantial
inquiry. Certainly, the [agency's] decision is
entitled to a presumption of regularity. But that
presumption is not to shield [the agency's] action
from a thorough, probing, in-depth review. The court
is first required to decide whether the [agency]
acted within the scope of [its] authority . . .
Scrutiny of the facts does not end, however, with the
determination that the [agency] acted within the
scope of [its] statutory authority. Section 706(2)(A)
requires a finding that the actual choice made was
not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. To make this
finding 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.
Although this inquiry into the facts is to be
searching and careful, the ultimate standard of
review is a narrow one. The court is not empowered to
substitute its judgment for that of the agency. The
final inquiry is whether the [agency's] action
followed the necessary procedural requirements.
Society Hill Towers Owners' Ass'n v. Rendell, 210 F.3d 168
178-79 (3d Cir. 2000), quoting Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402
, 415-417 (1971) (citations omitted). C. NEPA and Related Regulations
The purpose of NEPA is "[t]o declare a national policy which
will encourage productive and enjoyable harmony between man and
his environment. . . ." 42 U.S.C. § 4321. In other words, it is
the "national charter for protection of the environment."
40 C.F.R. § 1500.1(a). The related regulations "tell federal
agencies what they must do to comply with the procedures and
achieve the goals of the Act." Id. There are three typical
classes of action that may be taken by the USFS: 1) those which
require an environmental impact statement*fn3 ("EIS"); 2)
those which require environmental assessments*fn4 ("EA"),
but not necessarily EISs; and 3) those which are do not require
either an EIS or an EA, known as categorical exclusions ("CE").
40 C.F.R. § 1057.3(b)(2). In this case, the USFS Service
determined that the 19 Salvage Projects were categorically
excluded from the NEPA process.
1. Categorical Exclusions
The ADP's main argument is that the USFS violated NEPA and
related regulations in deciding that the 19 salvage projects fall
within the CE exception to NEPA. See, Docket No. 32 pp. 4-14. A
CE has been defined by as follows:
"Categorical Exclusion" means a category of actions
which do not individually or cumulatively have a
significant effect on the human environment and which
have been found to have no such effect in procedures
adopted by a Federal agency in implementation of
these regulations (§ 107.3) and for which, therefore,
neither an environmental assessment nor an environmental impact
statement is required. An agency may decide in its
procedures or otherwise, to prepare environmental
assessments for the reasons stated in § 1508.9 even
though it is not required to do so. Any procedures
under this section shall provide for extraordinary
circumstances in which a normally excluded action may
have a significant environmental effect.
40 C.F.R. § 1508.4. In opposition, Defendants and Intervenors
suggest that the use of the CE for the 19 salvage projects was
not a violation of NEPA.
The 19 salvage projects were categorically excluded under
Category 13, which "allows the salvage of dead or dying trees not
to exceed 250 acres with no more than ½ mile of temporary road
construction. The categorical exclusion allows salvage harvest in
areas where trees have been severely damaged by forces such as
fire, wind, ice, insects, or disease and still have some economic
value as a forest product." 68 Fed.Reg. 44598 (July 29, 2003);
see also, Docket No. 32, Tab 9, p. 15. In addition, there must
be no extraordinary circumstances. 40 C.F.R. § 1508.4; see also
USFS Handbook 1909.15 § 30.3(1) at Docket No. 32, Tab 9. In
determining whether extraordinary circumstances exist, the USFS
should consider the following resource conditions: "threatened or
endangered species or their critical habitat; flood plains,
wetlands, or municipal watersheds; Congressionally designated
areas such as wilderness, wilderness study areas, or national
recreation areas; inventoried roadless areas; research natural
areas; and Native American religious or cultural sites,
archeological sites, or historic properties or areas."
67 FR 54622-02; Docket No. 32, Tab 9 § 30.3(2). The "mere presence of
one or more of these conditions does not preclude the use of a
categorical exclusion." 70 FR 32713-01; Docket No. 32, Tab 9 §
After a review of the record according to the proper standard
and scope of review in this case, I find that summary judgment in
favor of ADP is not warranted. In particular, there is evidence
of record that the 19 projects meet the definition for CE: 1)
salvage of dead or dying trees not to exceed 250 acres with no
more than ½ mile of temporary road construction, and 2) no
extraordinary circumstances. See, Docket No. 46, Book 3, Tab 1,
p. 71 (acreage ranging from 18 acres to 205, in four counties,
scattered over 98,500 acres, with no new roads proposed); see
also, Docket No. 47: Book 14, Tab 1; Book 9, Tab 15; Book 30, Tab 13;
Book 32, Tab 13; Book 34, Tab 13; Book 35, Tab 1; Book 37, Tab
13; and Docket No. 46 (all demonstrating the analysis performed
by the USFS to determine there are no extraordinary
circumstances). Consequently, summary judgment in favor of the
moving party, ADP, is not appropriate.
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