ELR Citation: ELR 20492
No(s). 90-2744 (7th Cir. Nov 28, 1990)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act or the National Forest Management Act when it authorized a timber sale in the Shawnee National Forest in southern Illinois that would allow a private logger to conduct group selection by clearing trees on patches in areas totalling 26 acres. Recreational users of the Shawnee Forest sought and were denied a preliminary injunction when a local Forest Service supervisor issued a 112-page written decision in 1990, equivalent to an environmental assessment, that the sale required no environmental impact statement (EIS) and was consistent with a 1986 land management plan for the Shawnee Forest. Whereas the 1986 management plan had authorized both even-aged management by clearcutting and uneven-aged management by either cutting down individual trees or small patches, the supervisor's 1990 decision unmistakably implies that group selection is necessary to achieve the 1986 management plan's visual quality objectives. The plaintiffs argue that the 1990 logging contract decision requires an EIS and does not comply with the 1986 plan. The plaintiffs also argue that the 1986 plan requires that if the Service does not want to use clearcutting, it must demonstrate that group selection will make the forest look better than individual tree selection or no logging at all. Contrary to the plaintiffs' argument, the court interprets the 1986 plan as saying that clearcutting is permissible unless the results would be too unsightly, in which case the Service may authorize a less unsightly form of logging, such as group selection. The court observes that the plaintiffs' argument presents an impossible burden because a forest does not look better with bald patches than without.

The court holds that a remand for an EIS or better findings would be inappropriate because, although it would serve the plaintiffs' interest in delaying the timber sale, the record demonstrates that the forest supervisor's decision was based on a belief that the substitution of group selection for clearcutting was necessitated by concern about visual quality. The supervisor's decision could have been stated more clearly, but a reviewing court may uphold a decision of less than ideal clarity—without violating the rule of SEC v. Chenery Corp. against the court's supplying a rationale for the agency's decision—if the agency's path may reasonably be discerned. Additional reasons the forest supervisor suggested for authorizing group selection are that it would allow shade intolerant trees to receive needed sunlight and it would enable Forest Service employees to gain experience with group selection. Furthermore, the supervisor made a variety of interpretive and factual determinations in a substantial written opinion, after the plaintiffs had submitted their own voluminous evidentiary materials, and the court holds that the paper hearing was adequate to develop the facts necessary to a sound decision.

The court concludes that it is unnecessary to apply the standard for reviewing preliminary injunction claims. There will never be a trial, because the district court's function is merely to review the record compiled in the administrative proceeding. Furthermore, the plaintiffs' strong desire to preserve some forest covering in an otherwise bald state does not offset their inability to indicate what further evidence would strengthen their legal claims. The court notes that, as a general rule, once an EIS has been issued for a project, the agency may carry out the project without issuing a new statement for every stage of the project.

Counsel for Plaintiffs-Appellants
Barry Levenstam
Jenner & Block
330 N. Wabash, Chicago IL 60611
(312) 222-9350

Counsel for Defendants-Appellees
Stephen Clark, Ass't U.S. Attorney
750 Missouri Ave., Ste. 357, East St. Louis MO 62201
(618) 482-9361

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.