Mahler v. United States Forest Service

128 F.3d 578, 1997 WL 691071
Court of Appeals for the Seventh Circuit·Decided November 3, 1997·No. No. 96-4212·Published·Cited by 3 cases

Opinion

RIPPLE, Circuit Judge.

Andy Mahler brought this action in the district court under the Rescissions Act of 1995 (Pub.L. No. 104-19) and the Administrative Procedure Act (5 U.S.C.. §§ 701-06). He challenged the decision of the United States Forest Service and two of its officials to proceed with salvage timber sales under the provisions of the Emergency Salvage Timber Sale Program enacted in the Rescissions Act. Deciding the case on cross-motions for summary judgment, the district court held that the Secretary had complied with the requirements of the Rescissions Act for an environmental and biological assessment of the proposed timber sales. For the reasons set forth in this opinion, we now affirm the judgment of the district court.

I

BACKGROUND

A.

The dispute between Andy Mahler and the United States Forest Service is based upon conflicting interpretations of § 2001(c) of the [580]*580Rescissions Act.1 Before turning to the facts of this case, therefore, it is helpful to consider an overview of the statute and, in particular, the circumstances that led to the enactment of the Rescissions Act.

Congress recognized that the increasing numbers of dead and dying, trees in the Nation’s forests posed a serious threat to the health of those forests. It saw great risk to forest land from fire, insect infestation, and disease and believed that removal of salvage timber should be accomplished expeditiously so that reforestation could rejuvenate our forests. See H.R. Conf. Rep. No. 104-124, 141 Cong. Rec. H8788-01, at H8795 (daily ed. Sept. 12,1995). Accordingly, the Rescissions Act’s “Emergency Salvage Timber Sale Program” provides the means to expedite both environmental and biological assessments in order to allow the Secretary2 maximum flexibility for salvaging the greatest amount of timber while improving the health of the forest and reducing the risk of fire. Id. Under the Act, the Forest Service may propose a “salvage timber sale” as long as “an important reason for entry includes the removal of disease- or insect-infested trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack.” § 2001(a)(3).

In this case, it is undisputed that such a reason existed. A severe snowstorm, sweeping through southern Indiana in March of 1996, uprooted and damaged trees in three parts of the Hoosier National Forest — the Shoals, Lilly Dale and Lick Creek areas. The Forest Service survey of the Tell City Ranger District of the Forest, where the three areas are located, revealed that the damage posed a threat of forest fire or plant pest and disease if the downed and damaged trees were allowed to dry out and die. The Service therefore sent a scoping notice to more than 900 members of the public (including Mr. Mahler) advising them of the proposal to salvage that timber and requesting comments. Mr. Mahler submitted his objections to the sales.

The Forest Service then reviewed the comments and analyzed site-specific reports concerning the environmental effects of the proposed sales on each area. The Decision Memo prepared for each sale included the following information: an aerial survey of the damaged areas, a biological evaluation (“BE”), a Karst Prescription (which maps and flags the protected “no-soil-disturbance/no-cutting” zones in which caves, sinkholes, swallow holes, karst springs or other karst features have been found, see II Admin.R. at 237-42), a cultural resources analysis, a report on the existing conditions of aquatic resources, and studies of the soils and tree types in each area.

On June 26, 1996, the Forest Service issued a BE that evaluated the potential effects of the proposed sales on all threatened and sensitive species identified as potentially having habitats within the timber sale areas. It found there were no federally threatened or endangered species or their habitats in [581]*581those locations. Further analyses indicated that there were neither erosion-prone areas nor protected research natural areas in the three sites. The Forest Service concluded as well that the salvage timber sales would have no impact on cultural, archaeological or historic resources.

Because each salvage timber sale would harvest less than 1 million board feet of timber, the Service concluded that the sales qualified, under the National Environmental Policy Act (“NEPA”), for a categorical exclusion from documentation in an Environmental Impact Statement (“EIS”) or an Environmental Analysis. (“E A”).

On July 19,1996, the Forest Service issued its Decision Memo for each salvage sale. See Admin.R. A.1, A.2, A.3. The Memos proposed the harvest of an estimated 500,000 board feet of salvage timber from the Lilly Dale and the Shoals salvage sale sites and an estimated 900,000 board feet of salvage timber from the Lick Creek sale site. The Memos concluded that the sales came within the Emergency Salvage Timber Program set forth in § 2001(b) of the Rescissions Act. When the Forest Service approved the sales and advertised for bids, this litigation followed.

B.

In this action, Mr. Mahler alleged that the Forest Service’s decision to proceed with the, salvage timber sales violated § 2001 of the Rescissions Act because the Secretary had failed to comply with the analysis and documentation requirements of the Act and had found that the project qualified for a categorical exclusion from an EA.

The district court reviewed the Forest Service’s interpretation of the Rescissions Act and determined that the Service’s view of the type of document the Secretary needed to produce in assessing the environmental and biological impact of the proposed sale was “based on a permissible construction of the statute.” R.28 at 4 (quoting Chevron U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)). According to the district court, the Secretary had decided correctly that a full EA did not have to be prepared; instead, only a document combining an EA and a BE was necessary under the statute.

The court then considered the Secretary’s view that the agency may avoid the preparation of an EA by relying upon a “categorical exclusion” on the ground that the action will not have a significant effect on the environment. On this point, it disagreed with the Secretary. Acknowledging that Chevron usually requires that the court defer to the interpretation of the statute followed by the agency charged by Congress with its administration, the district court nevertheless stated that Chevron also , required that .tbe court’s primary allegiance be to the plain wording of the statute and the manifest intent of Congress. In the court’s view, the statute plainly required that the agency produce a document considering environmental and biological effects. In fact, the court noted that such a document was “the lone ‘safeguard’ placed on the administrative agency.” Id. at 8.

Nevertheless, the court also determined that the Secretary did consider, some environmental effects. The administrative record contained reports, documents and analyses made of these areas by the Forest Service.

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Mahler v. United States Forest Service, 128 F.3d 578, 1997 WL 691071 (7th Cir. 1997).

128 F.3d 578 (Mahler v. United States Forest Service) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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