ELR Citation: ELR 20313
No(s). CIV 92-5101 (D.S.D. Oct 28, 1993)

The court holds that two timber sales in the Black Hills National Forest do not violate the National Forest Management Act (NFMA) and that the U.S. Forest Service's environmental assessment (EA) for the sales is not arbitrary or capricious and does not violate the National Environmental Policy Act (NEPA). The court first holds that one of the environmental group plaintiffs has standing to bring suit, because two of the group's members would have standing as individuals, the group's interests in the suit are germane to its purpose of preserving the environment, and neither the group's claims nor the relief it seeks require the participation of individual members of the group. Because the group has standing, the standing of the other environmental group plaintiff is immaterial. The court next holds that the environmental groups failed to exhaust their administrative remedies on the issue of whether the EA considered a reasonable range of alternative courses of action, because the groups did not raise the issue before the agency. The court declines to reach the merits of the claim. The court also declines to reach the merits of the issue whether the EA was inadequate because it failed to assess the impacts of the timber sales in one particular area. The groups raised the issue for the first time in their reply brief and the agency, the defendants, and the intervenor have been deprived of an opportunity to address it.

Turning to the groups' NEPA claims, the court holds that the Forest Service did not act arbitrarily or capriciously when it examined the impacts of the timber sales and found that there would be no significant impact. The groups' argument that the EA failed to consider the impacts of the sales on sensitive species is unfounded, because the EA identifies this issue and discusses the impacts. The groups' claim that the Forest Service has not done any monitoring to deduce impacts of past timber sales is without merit, because the EA indicates that a calling survey and a walk-through survey for goshawks was done to determine goshawk populations in the project area. Furthermore, the EA mentions the results of hunting surveys that the Forest Service obtained from the South Dakota State Department of Game, Fish, and Parks regarding white-tailed deer populations in the area. The groups' claim that the EA did not consider the impact that road construction and use would have on habitat fragmentation in the area is unfounded, because the EA specifically considered the impact road construction and use would have on white-tailed deer and elk habitat. The groups' argument that the EA failed to address the cumulative effects of past management on the project area is also without merit, because the EA examined the cumulative effects of the actions for the past 10 years and the projected impact for the next five years. With respect to the groups' argument that the EA is inadequate because it allegedly failed to address the impacts of timber harvests on private lands adjoining the project area, the court holds that the groups failed to demonstrate how this is relevant to the Agency's inquiry under NEPA.

The court next holds that the Forest Service's use of the HABCAP computer model does not violate NEPA requirements for scientific accuracy. Although the HABCAP program is designed for use in all of Region Two of the National Forest System, the program can be modified when moved from one forest or district to another. The choices that the HABCAP program offers the operator as to types of vegetation, structural stages of the vegetation, and wildlife species include vegetation and wildlife typical of the project area. Therefore, unless the program operator entered choices that were not representative of vegetation, structural stages, or wildlife species in the project area, the program result in this case would have been very closely tailored to the conditions in the project area. The court next rules that as long as an agency reveals the data and assumptions on which a computer model is based, allows and considers public comment on the use or results of the model, and ensures that the ultimate decision rests with the agency, not the computer model, then the agency use of a computer model to assist in decisionmaking is not arbitrary and capricious. The court holds that in this case, the Forest Service did reveal the limitations and assumptions on which HABCAP is based and did allow and consider public comment on its use of HABCAP and that the Forest Service, not the computer model, made the ultimate decision. Accordingly, the court holds that the Forest Service's use of HABCAP in this case was not arbitrary or capricious.

The court holds unfounded the groups' argument that the EA was inadequate because it allegedly failed to address the loss of biological diversity that habitat fragmentation will create. The EA analyzed the impacts of a number of alternatives that might provide a solution to the project area's lack of diversity. The alternative that the Forest Service chose proposed that some timber be cut to create the openings and forage areas that were required by the forest plan for the Black Hills National Forest and were missing from the project area. To produce the needed snags and old growth, the alternative proposed preserving all existing snags unless they posed a fire hazard and setting aside certain stands from the timber sales. The alternative also included mitigation measures to protect goshawks. The EA concluded that the creation of openings and grass/forbs areas would benefit the white-tailed deer by providing additional forage for the species and to mitigate the alternative's negative impact on cover vegetation, the EA proposed that 187 acres of the proposed timber sales be withdrawn to provide an area in which cover could be created. The court holds that the groups' claim that the Forest Service should prepare a supplemental environmental impact statement (EIS) fails because they failed to demonstrate any significant environmental effect of the Forest Service's decision to proceed with the sales that was not foreshadowed by and considered in its forest plan or the programmatic EIS for the plan.

Turning to the groups' NFMA claims, the court holds that the forest supervisor's decision on how to create forest snags was not arbitrary or capricious, because she guaranteed that the forest plan's standards are being met, that the alternative adopted was projected to meet snag standards, and that the Forest Service would continue to monitor snags to ensure that the predictions in the EA are accurate and that snag standards would continue to be met in the future. The court holds that the forest supervisor's decision on creating old growth was not arbitrary or capricious, because she struck a reasonable compromise between competing old growth and grass/forb standards by providing for the designation of some timber to become old growth and the removal of other timber to create grass/forb stage areas. The court holds that the forest supervisor's decision on creating cover and habitat capability for white-tailed deer was not arbitrary or capricious, because she made a reasonable compromise that would cut some trees and reserve others for the creation and maintenance of cover. Finally, the court holds that the groups failed to show that the Forest Service was not meeting the forest plan's standards for monitoring management indicator species.

Counsel for Plaintiffs
James F. Margadant
Seiler & Trimble
717 Kansas City St., Rapid City SD 57701
(605) 343-6442

Counsel for Defendants
Robert A. Mandel, Ass't U.S. Attorney
U.S. Attorney's Office
515 9th St., Rm. 226, Rapid City SD 57701
(605) 342-7822