ELR Citation: ELR 20029
No(s). 90-C-0336 (E.D. Wis. Feb 9, 1994)

The court holds that the U.S. Forest Service did not violate the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), the Multiple-Use Sustained-Yield Act (MUSYA), or regulations thereunder in developing a management plan for the Nicolet National Forest in Wisconsin. The court first holds that plaintiff environmental groups have standing to challenge the plan, because their alleged injury concerns a concrete, legally cognizable interest—personal and professional enjoyment of the forest—and plaintiffs and their members would be among the injured. The court holds that although the Forest Service has yet to inflict the injury through the development of site-specific projects, the injury is not conjectural or speculative, because the plan mandates, in specific terms, the management activity that will ultimately cause plaintiffs' injury. The court holds that plaintiffs also have standing to challenge the adequacy of the Forest Service's final environmental impact statement (FEIS) for the plan, because they contend that if the Forest Service had considered basic ecological principles in its environmental analysis it might have sought to avoid or mitigate plan prescriptions that contribute to excessive forest fragmentation, the source of plaintiffs' injury. In addition, notwithstanding the need to develop site-specific projects, the plan is ripe for review because the collection of decisions that make up the plan is formally treated as a single agency action.

Turning to plaintiffs' claims, the court holds that it need not consider plaintiffs' MUSYA challenge, because the MUSYA offers no guidance on how to assess the Forest Service's management activity and the NFMA speaks directly to that issue. Addressing plaintiffs' NFMA and NEPA challenges, the court holds that the Forest Service did not act irrationally in failing to base its assessment of biological diversity on the principles of conservation biology set forth by plaintiffs. Although these principles represent sound ecological theory, considerable uncertainty surrounds the question of how to apply them. Plaintiffs do not suggest what methodology the Forest Service should have used to incorporate these principles into its planning process. Also, plaintiffs failed to respond to the Forest Service's assertion that empirical studies of island biogeography that plaintiffs cite have been conducted only in ecosystems differing substantially from the Nicolet National Forest and that such studies, therefore, do not have equal significance in the forest. In addition, plaintiffs have failed to respond to the Forest Service's statement that according to at least one authority on conservation biology, biological diversity is not dependent on the maintenance of a few large habitats, which plaintiffs advocate, but also can be preserved by maintaining numerous small ones, as the Forest Service purports to include in the forest plan.

The court next holds rational the Forest Service's method of determining the mix of tree species, tree age-classes, and wildlife openings deemed optimal for wildlife diversity. The Forest Service's failure to describe that method in detail suggests a degree of arbitrariness in the selection of the optimal prescriptions, but not so much as to undermine the analysis as a whole. The general principles underlying the selection of optimal prescriptions are identified and explained, and plaintiffs have not attempted to show, nor has the court found, that the prescriptions are inconsistent with those principles. The court, therefore, holds that the Forest Service did not act irrationally in assuming its mix of prescriptions could provide for an abundance of different biological communities, one of the two components of diversity the NFMA mandates. The Forest Service also did not act irrationally in applying that assumption through the diversity index it developed based on those prescriptions. The court holds that the Forest Service rationally addressed the second component of diversity, distribution throughout the planning area, by developing and examining the prescriptions not only at the level of the forest as a whole but also at the level of the socioeconomic zones into which the Forest Service divided the forest. The court, therefore, holds that the Forest Service's analysis of biological diversity satisfied the requirements of the NFMA, NEPA, and the regulations thereunder.

The court next holds that the Forest Service acted rationally in concluding that the forest plan satisfies the requirement of 36 C.F.R. §219.21 that the plan provide for a broad spectrum of forest- and rangeland-related outdoor recreation opportunities. Addressing plaintiffs' claim that the Forest Service's allotment of semi-private land does not provide an adequate opportunity for remote recreation, the court holds that the 33,000 acres of congressionally designated wilderness area and the 13,600 acres of land reclassified as semi-primitive nonmotorized can rationally be said to provide an opportunity for such recreation. Section 219.21 is so vague that it cannot be interpreted as compelling the Forest Service to do more than provide some opportunity for remote recreation. Although plaintiffs may have shown that there is not a great opportunity for such recreation under the plan, they have not shown that there is no real opportunity for it. The court also holds that the Forest Service's conversion of data on forest use into data on the supply of recreational resources was not inherently irrational and that the fluctuation in the Forest Service's classifications of land for different uses did not establish that the Forest Service's classifications of land for different uses did not establish that the Forest Service had acted irrationally. In addition, the Forest Service's failure to follow the demand estimates of the state outdoor recreation plan did not violate the requirement of 36 C.F.R. §219.21(e) for coordination with present and proposed recreation activities of local and state land use or outdoor recreation plans. Section 219.21 requires the Forest Service to coordinate its forest plan not with the demand estimates of state and local plans, but with the recreation activities of such plans, and not to do so for the purpose of ensuring that demand is met, but for the purpose of reducing duplication in meeting recreation demands. The court holds that the inconsistency between the Forest Service's demand estimates and those of the state does not violate §219.21(e) and does not establish that the Forest Service acted irrationally in arriving at its own demand estimates.

Finally, the court holds that the range of plans set forth in the FEIS was adequate under NEPA and associated regulations. The Forest Service formulated eight alternative plans, each with its own management emphasis and its own prescriptions for timber production and road maintenance and construction. Although common parameters on total harvest level and total road mileage constrained six of the plans, this did not render the FEIS inadequate. The constraints were not arbitrary, but were designed to ensure that the forest would meet the anticipated demand for its timber. Also, even with the harvest-level and road-mileage parameters, the remaining variables—harvest composition and method and road quality and treatment—were sufficient to generate meaningful alternatives with respect to timber production and road maintenance. In addition, two of the alternatives were free of the harvest-level and road-mileage constraints, so the constraints themselves did not go unexamined.

Counsel for Plaintiffs
Walter Kuhlmann
Boardman, Suhr, Curry & Field
One S. Pinekney St., Ste. 410, Madison WI 53701
(608) 257-9521

Counsel for Defendants
Wells D. Burgess, Louise Milkman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000