ELR Citation: ELR 20733
No(s). 93-B-1103 (D. Colo. Nov 16, 1994)

The court holds that a 1992 U.S. Forest Service decision to harvest timber from the Long Draw area of the Arapaho and Roosevelt National Forests using clearcutting and shelterwood cutting methods violated the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA). The court first holds that the unique circumstances in this case warrant waiver of the exhaustion of administrative remedies requirement. The Forest Service disregarded the administrative appeal apparatus when it failed to take action on plaintiffs' appeal of the 1992 decision and failed to provide adequate justification for that inaction. In addition, there is no indication that the Forest Service will ever consider the merits of that appeal. Furthermore, plaintiffs' primary basis for requesting revision of the 1992 decision rests on issues of statutory interpretation that are not subject to the exhaustion doctrine. The court next holds that 28 U.S.C. §2401(a)'s six-year statute of limitations does not bar plaintiffs' action. Plaintiffs do not challenge the Forest Service's 1979 restocking regulation at 36 C.F.R. §219.27(c)(3), but challenge the regulation's application to the Long Draw timber sale. The statute of limitations thus began to run at the completion of the administrative proceedings, not when the regulation was promulgated.

The court holds that the issue of whether the 1992 decision regarding shelterwood cutting on 215 acres violates the NFMA's five-year restocking requirement is properly before it. The court rejects the government's contention that this question falls outside the claims asserted in plaintiffs' amended complaint. The complaint need only be written sufficiently to put the agency on notice of its wrongful conduct, and the amended complaint adequately raises the issue. Moreover, the government's extensive briefing of the NFMA's restocking requirement and its recognition of this issue in its amended answer cure any deficiency in plaintiffs' amended complaint. The court next holds that Congress has not unambiguously defined "harvest" under the NFMA or its five-year restocking requirement. The court holds that the agency's interpretation of the requirement to exclude shelterwood cutting is contrary to congressional intent. The government admits that for the shelterwood cuts, the Forest Service may never authorize additional, later harvest. Consequently, the Forest Service can effectively defeat the restocking provision in this case by never making the "final" harvest cut. Thus, application of the five-year restocking regulation in this case is clearly contrary to Congress' express mandate that timber be harvested only when there is assurance that such lands can be adequately restocked within five years after harvest. The court therefore holds that to the extent it proposes shelterwood timber harvesting on 215 acres in the Long Draw area, the Forest Service's 1992 decision is not in accordance with NFMA §6(g)(3)(E)(ii)'s restocking requirement. The court remands the 1992 decision to the Forest Service to amend its decision. Specifically, a revised decision must ensure that for all shelterwood cuttings, a final removal or harvest take place so as to begin the running of the five-year restocking requirement.

The court holds that the Forest Service's adoption of a "biologically feasible" standard to measure restocking is in accord with the NFMA. Unlike "technological feasibility," biological feasibility does not render the NFMA's five-year restocking requirement meaningless. Indeed, natural regeneration is the preferred alternative. Turning to plaintiffs' contention that the Forest Service violated NEPA and its implementing regulations by failing to review and justify adequately on a sale-specific basis the exclusive use of even-aged timber cutting over uneven-aged methods, the court notes that under the NFMA, uneven-aged management is the preferred cutting method. The court holds that the Forest Service's claim that the forest plan limited its alternatives to even-aged management is without merit, because the plan does not eliminate uneven-aged management from the range of acceptable alternatives. The Forest Service admits, and the plan reveals, that although selection cutting—an uneven-aged method—is not standard practice, it is appropriate and acceptable where justified. The court holds that the Forest Service violated NEPA's procedural requirements by considering only alternatives that merely led to a similar result—even-aged harvesting of lodgepole pine. Assuming, arguendo, the Forest Service did consider and reject uneven-aged alternatives as unacceptable for the Long Draw area, the Forest Service's failure even to mention this rejected alternative in either its 1990 environmental assessment (EA) or 1992 supplemental EA is fatal to its argument. Furthermore, if the Forest Service considered and rejected alternatives including uneven-aged harvesting methods for lodgepole pine, the Forest Service should have disclosed this to the public before this summary judgment stage of the action. Moreover, the government offers no legal precedent for allowing it to supplement—with an unsolicited, extra-record declaration of its silviculturist to prove that it considered and rejected uneven-aged management—the alternative courses of action considered and disclosed in the 1990 EA at this late date. The court holds that the Forest Service must consider and discuss uneven-aged harvesting in the same way as other alternatives. The Forest Service's consideration of eight alternatives, none of which use an uneven-aged cutting method for lodgepole pine, does not constitute the broad range of alternatives contemplated by 36 C.F.R. §219.12(f) or NEPA §102(21(E). Rather, the Forest Service's action is arbitrary, capricious, and not in accordance with the law. The court directs the Forest Service to review and discuss alternatives based on an uneven-aged harvesting of lodgepole pin and set forth its reasons for their selection or rejection.

The court holds that the Forest Service violated the NFMA's requirement that clearcutting be used only where it is the "optimum" method and shelterwood cutting only where it is determined to be "appropriate" to meet the objectives and requirements of the relevant land management plan. The Forest Service failed to give meaningful consideration to all feasible and reasonable alternatives. The court next holds that the Forest Service failed to consider adequately soil productivity. The 1992 supplemental EA is insufficient to show that the Forest Service properly evaluated all of the proposed alternatives. Absent final, site-specific soil data for each proposed alternative, the Forest Service's soil analysis remains inadequate and the proposed mitigation measures included in the 1992 supplemental EA are also flawed. The court remands the 1992 decision to the Forest Service to correct these deficiencies. The court also holds that absent adequate site-specific soil data for all proposed alternatives, the Forest Service's determination that regeneration will occur within five years from final harvest in the proposed shelterwood areas, if considered at all, was arbitrary and capricious. The court also remands the 1992 decision on this ground. The court next holds that the Forest Service's 1992 decision of no significant or cumulative impact of soil disruptions was not arbitrary or capricious. The 1992 supplemental EA, unlike the 1990 EA, adequately addresses whether any past actions combined with effects of the proposed action will have any significant impacts.

The court enjoins the implementation of the Long Draw timber sale. Injunctive relief is appropriate because plaintiffs have no sufficient legal remedy and the Long Draw area will be harmed permanently, or for a considerable time, if the Forest Service is allowed to proceed with the proposed timber harvesting activities. The court next rejects plaintiffs' request for costs and attorney fees, holding that the government's position was substantially justified. The government's position did not conflict with settled precedent and was reasonable in light of the lack of established precedent, and the government prevailed in part.

The court denies the government's motion for reconsideration. The court holds that its order is not inconsistent and that Sierra Club v. Espy, 25 ELR 20426 (5th Cir. 1994), which was decided one day before the court's order, does not diminish the legal soundness of the court's conclusion. Regardless of whether there is a preference in the NFMA for uneven-aged logging, the Forest Service was obliged to consider an uneven-aged harvesting method to comply with NEPA in this case. Also, whether or not there is some distinction between the EAs and environmental impact statements regarding the standard for assessing the range of alternatives, the Forest Service should have examined in the EA an alternative employing uneven-aged management and, if rejected, explained in the EA why this alternative was inappropriate.

Counsel for Plaintiffs
Paul Gordon
Don, Hiller & Galleher
1737 Gaylord St., Denver CO 80206
(303) 572-1668

Counsel for Defendants
Robert D. Clark, Ass't U.S. Attorney
U.S. Attorney's Office
1200 Federal Office Bldg., Drawer 3615, Denver CO 80294
(303) 844-3400