ELR Citation: ELR 20300
No(s). 92-4205 (S.D. Ill. Aug 26, 1993)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA) or the National Forest Management Act (NFMA) in deciding to implement an ecological restoration program as part of its amended land and resource management plan for the Shawnee National Forest in Illinois. The Forest Service developed an ecological restoration program to restore the natural hardwood ecosystems that once existed in the region now encompassed by the Shawnee National Forest. Under the plan, the Forest Service will eliminate some of the existing pine plantations and replace them with hardwoods. Plaintiff sought to stay all forest fragmenting activities and challenged the eradication of the pine plantations as violative of the NFMA and the Forest Service's regulations implementing the Act, claiming that such action would eliminate the viable populations of the pine warbler, a management indicator species for the forest. Plaintiff also claimed the Forest Service violated NEPA by failing to complete a full environmental impact statement (EIS) before deciding to implement the restoration program in one area of the forest.

The court first upholds the Forest Service's decision to deny, pursuant to Forest Service regulations, plaintiff's motion for a blanket stay of all forest fragmenting activities. Forest Service regulation §217.10(d)(3) dictates that plaintiff cannot get a blanket stay on implementation of the forest plan, but must request a stay on specific projects or activities. The court holds that plaintiff's motion for a preliminary injunction for activities in one area of the forest is moot, because the court reaches a decision on the merits of plaintiff's claim regarding that section of the forest in a subsequent section of this opinion.

The court holds that plaintiff's claims are not barred because he failed to exhaust his administrative remedies with respect to activities in one area of the forest. Any interest the government may have under the exhaustion analysis is outweighed by the plaintiff's interest in preventing the irreversible harvest of trees and destruction of pine habitat. The court next holds that the Forest Service complied with Forest Service regulations implementing the NFMA that address the maintenance of viable populations of existing native and desired nonnative vertebrate species. Although elimination of pine plantations will cause the extirpation of the pine warbler and other species, the Forest Service is not required to maintain minimum viable populations of those species. The court finds that the Forest Service did not make a clear error of judgment in determining that the pine warbler is not a native species of southern Illinois. Moreover, although the pine warbler was selected as a management indicator species, the regulations at issue indicate that the Forest Service may take action that is adverse to a management indicator species so long as the action is consistent with the overall multiple-use objective of the forest plan. The court finds that the Forest Service has complied with these regulations and others that require the Forest Service to identify habitat and prescribe measures to prevent destruction of such habitat that the Forest Service determines is critical for threatened or endangered species. The court also finds that the ecological restoration program is in compliance with the Forest Service's diversity requirements. The Forest Service was aware of the environmental effect of implementing the restoration program and obviously weighed the environmental benefits of eliminating the pine plantation against the detriment of losing the identified species. Moreover, its decision reflects the fact that the agency ultimately placed a greater importance on increasing the overall biological diversity of the forest than on maintaining the indicator species. The court also holds that the agency's final supplemental EIS sufficiently justified the type of conversion for pine plantations to hardwoods. The court rejects plaintiff's claim that the categorization of pine sales under the ecological restoration program will camouflage the fact that such sales are being subsidized by the government, stating that how the Forest Service pays for the program is a budgetary matter between the agency and Congress.

The court holds that the Forest Service's decision to implement the ecological restoration program in a specific area of the forest fully complied with NEPA's environmental assessment requirements, and its decision not to complete a full-blown final EIS was not arbitrary and capricious. The Forest Service sufficiently identified, disclosed, and considered the environmental consequences of going forward with the project in that area. Finally, the court rejects as meritless plaintiff's claim for sanctions against the government for allegedly making arguments not well-grounded in fact or warranted by existing law.

Counsel for Plaintiff
Dr. Joseph M. Glisson
Rural Rt. 2, Box 84, Creal Springs IL 60293
(618) 966-2547

Counsel for Defendants
William Coonan, Ass't U.S. Attorney
U.S. Attorney's Office
Nine Executive Dr., Ste. 300, Fairview Heights IL 62208
(618) 628-3700