ELR Citation: ELR 20340
No(s). 2:93CV69 (W.D.N.C. Jun 2, 1993)

The court holds that the U.S. Forest Service's (Service's) decision to segment a timber salvage project so that it would come within regulatory categorical exclusions from environmental impact statement (EIS) requirements is not unlawful, and no extraordinary circumstances requiring an EIS exist, and that it is not required to prepare an EIS or an environmental assessment (EA) for timber damaged by tornadoes in the Cheoah District of the Nantahala National Forest in North Carolina. The Service proposed to harvest timber downed by tornadoes and divided the project into two segments to remove the "remote group" consisting of 900,000 board feet, because it is in a semi-primitive, nonmotorized section of the forest.The regulatory categorical exclusions for preparing an EIS under 40 C.F.R. §1508 include salvage projects that remove one million board feet or less of timber and require no more than one mile of low standard road construction. The court holds that the Service's decision to divide the salvage project into two segments is not unlawful, nor is it arbitrary and capricious. Evidence that the Service is preparing an EA for the "remote group," although not required, outweighs any inference that the Service divided the project purposely to avoid the mandatory documentation requirements, and there are legitimate reasons for the segmentation, such as location and accessibility of the two groups. The court rejects environmental groups' argument that an EIS is necessary because there are five extraordinary circumstances in this case: the cumulative effect when combined with other salvage projects; the unique or unknown risks of the project; the project's highly controversial nature; the establishment of a precedent significantly affecting future projects; and the project's effect on an ecologically critical area. The court holds that no analysis of the cumulative effect of this harvest is necessary, so long as the agency considers the cumulative effect in the EA for the "remote group's" planned salvage. The court also holds that risk to the junaluska salamander of exposure to acidic rock does not require an EA or EIS and is not an extraordinary circumstance. Next, the court rejects the argument that any project which does not meet with unanimous approval is highly controversial, because such a precedent may squelch debate within the agency. The court holds that this case does not set a precedent that the Service may segment projects to avoid documentation, but it does not set a precedent that the Service may segment projects to avoid documentation, but it does allow future segmentation for some good reason. Finally, the court holds that merely asserting that there is a biological corridor near the tracts to be harvested is not enough to be an extraordinary circumstance.

Counsel for Plaintiffs
Brent Conners
107 Second Ave. W., Hendersonville NC 28792
(704) 697-3248

Counsel for Defendants
Clifford C. Marshall, Ass't U.S. Attorney
U.S. Attorney's Office
306 U.S. CtHse., 100 Otis St., Asheville NC 28801
(704) 259-0661