ELR Citation: ELR 20052
No(s). C2-92-249 (S.D. Ohio Mar 11, 1994)

The court holds that the U.S. Forest Service did not violate the National Forest Management Act (NFMA), the Multiple-Use Sustained-Yield Act, or the National Environmental Policy Act (NEPA) in adopting its land and resource management plan and final environmental impact statement (FEIS) for the Wayne National Forest in southeastern Ohio. The court first holds that the Forest Service did not violate the NFMA by adopting even-aged management, particularly clearcutting, as the primary method of vegetative management in the forest. The Forest Service addressed the concerns occasioned by clearcutting, and the applicable statutes and regulations provide for further assessment of these concerns on a site-specific basis when the Forest Service proposes to pursue specific projects in the forest. The court holds that the plaintiff environmental groups have not shown that the Forest Service's general determinations regarding the effects of timber harvesting on soil and water resources, the problem of slopes and roads, and erosion mitigation techniques were arbitrary and capricious. A more specific consideration of these matters is properly deferred until there is a proposal for a specific timber sale at a specific site. The court holds that the plan need not address the costs of mitigation, because those costs are to be borne by timber purchasers, who presumably will not proceed with a sale if such costs render it unprofitable. The court holds that the plan complies with the NFMA and its implementing regulations allowing the use of clearcutting only where there is a determination that it is the optimum method to meet the plan's objectives and requirements. The plan and FEIS explain the rationale for choosing clearcutting, limit the sizes of clear cuts, and incorporate standards and guidelines to lessen their visual impact. The court holds that the groups failed to show that the choices of even-aged management as the predominant silvicultural system and of clearcutting as the predominant harvest method were arbitrary or unreasonable. The court holds that a Forest Service regulation that exempts from environmental analysis proposed timber sales involving 250,000 board feet or less, which could exempt some timber sales in the forest from further review, does not render unreasonable or arbitrary any determination made in the plan. The court also holds that there is nothing in the record to support the groups' claim that because timbering is almost entirely forbidden in a forest 250 miles away, which was once administered jointly with the Wayne National Forest, there is no justification to allow any significant timbering in the Wayne National Forest.

The court next holds that the Forest Service satisfied NFMA §6(k)'s requirement that the Secretary of the Interior identify the lands within the forest that are physically unsuitable for timber production and assess the availability, cost, and effectiveness of mitigation measures necessary to prevent irreversible damage. The forest planners concluded that available technology would control soil and watershed impacts from timber harvesting to the point of insignificance, and the groups have not shown that this determination was arbitrary or capricious. The court holds that the forest planners were not required to estimate the cost of the technology in order to determine if it is "available" within the meaning of the NFMA's implementing regulations. The court holds that the Forest Service considered the impacts of harvesting on watershed quality at an appropriate level for a programmatic forest plan. The court next holds that the Forest Service's authorization of below-cost timber sales does not violate §6(k)'s requirement that timbering be economically suitable. Section 6(k) does not impose a strict economic test for the suitability of timbering and Congress did not require that economic factors alone should be determinative. The court holds that it is within the Secretary of the Interior's discretion to apply the economic suitability test during, rather than before, the development of plan alternatives. The court holds that there is no evidence that the forest planners gave undue weight to production goals in the suitability analysis or that they capitulated to timber industry interests. The regional forester has sufficiently explained why the plan maximizes net public benefits even though it includes below-cost timber sales. The court next holds that the Forest Service satisfied NEPA's requirement that it consider a reasonable range of alternatives in developing the plan. The Forest Service considered seven alternative plans, in which the amount of land classified as suitable timber land ranges from 17,878 acres to 147,742 acres. NEPA requires that the FEIS set forth only those alternatives sufficient to permit a reasoned choice, not that an agency consider alternatives that do not achieve the purpose of the proposed actions. The court next holds that the Forest Service's use of a particular computer program designed for use in forest planning did not result in any arbitrary or capricious decisions. Finally, the court holds that the plan provides sufficient diversity of plant and animal communities as required by NFMA §6(g)(3)(B), while balancing a mix of multiple uses.

Counsel for Plaintiffs
Frederick M. Gittes
Spater, Gittes, Schulte & Kolman
723 Oak St., Columbus OH 43205
(614) 221-1160

Counsel for Defendants
James E. Rattan, Ass't U.S. Attorney
U.S. Attorney's Office
200 U.S. CtHse., 85 Marconi Blvd., Columbus OH 43215
(614) 469-5715