ELR Citation: ELR 20023
No(s). 93-103-H (W.D. Va. Feb 9, 1994)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), or the Administrative Procedure Act when it approved an even-aged timber sale in an area of the George Washington National Forest in Virginia. The court also denies as moot a motion for a preliminary injunction by an individual who challenged the sale. Because the administrative record is closed, the court advances and consolidates trial on the merits with the preliminary injunction motion, and considers the motion as if it were for a permanent injunction.

The court first holds that it will not enjoin the timber sale simply because plaintiff is currently challenging, in an administrative appeal, the Forest Service's 1993 revision to the forest's 1986 plan. The Forest Service has certified that the timber sale complies with both versions and the 1993 revision does not significantly differ from the 1986 plan. The court holds that the Forest Service's biological evaluation, which forms the basis of its conclusions in an environmental assessment (EA) for the sale, provides a sufficient basis to conclude that the sale would not impact threatened or sensitive species. The Forest Service's reliance on a database that did not contain data on sensitive species in the specific project site was not arbitrary and capricious, because the Forest Service used other information in conjunction with the database. Also, the Forest Service is not required to identify additional sensitive species that existing resources have not yet uncovered.

The court next holds that the Forest Service complied with the NFMA's requirements that it collect inventory data on forest resources. The Forest Service's compilation of area-specific population data for various management indicator species at the planning level, combined with site-specific information in the biological evaluation, provides a sufficient inventory to permit a reasoned evaluation of diversity under the NFMA. The Forest Service is not required to prepare detailed lists of each management area's plant and animal species. The court holds that the Forest Service adequately applied biodiversity principles in selecting a management plan that features protecting target species in each of the forest's management areas. Naturally occurring ecosystems in a particular area are not the sole measure of diversity, and the NFMA's regulatory scheme permits multiple-use management goals. The court holds that the Forest Service did not violate the NFMA by failing to consider adequately the potential of the project area to develop into old growth forest, because the Forest Service determined that the project complies with its interim rules for old growth management. Also, in developing its old growth management plan, the Forest Service gave sufficient consideration to the NFMA's requirement of preservation and promotion of natural forest conditions.

The court next holds that the Forest Service sufficiently considered edge effects and fragmentation. One of the sale's purposes was to create forest edge habitat for species such as deer, without substantially harming other species that require uninterrupted forest conditions, and the EA indicates that the selected alternative results in substantial preservation of unbroken forest. The court holds that the Forest Service adequately considered the sale's effects on a special biological area in the vicinity and that the Forest Service adequately considered the impacts on soil and water quality in the project area. The Forest Service's reliance on historical erosion data, rather than an examination of site-specific effects, was not arbitrary and capricious. The court holds that the administrative record contains ample evidence demonstrating that the Forest Service adequately considered the project's cumulative effects at both the plan and site-specific levels. The court holds that the Forest Service evaluated an adequate range of alternatives to logging. Unlike alternatives such as nonlogging or forest restoration, the proposed sale meets the Forest Service's valid goals of promoting increased deer habitat, meeting area timber requirements, and preventing defoliation. Finally, the court holds that the proposed sale is not inconsistent with the forest plan.

Counsel for Plaintiff pro se. Addresses not available at this printing.

Counsel for Defendants
Richard A. Lloret, Ass't U.S. Attorney
U.S. Attorney's Office
Richard A. Poff U.S. Cthse.
P.O. Box 1709, Roanoke VA 24008
(703) 857-2250