Sierra Club v. Wagner, et al.

2008 DNH 113

• Court: District Court, D. New Hampshire
• Decided: June 6, 2008
• Docket: 07-CV-257-SM
• Status: Published

Opinion

Sierra Club v . Wagner, et a l . 07-CV-257-SM 06/06/08 P UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Sierra Club; Forest Watch; and The Wilderness Society, Plaintiffs

v. Civil N o . 07-cv-257-SM Opinion N o . 2008 DNH 113 Thomas Wagner, White Mountain National Forest Supervisor; Abigail Kimball, U.S. Forest Chief; United States Forest Service; Edward T . Schafer, Secretary, U.S. Department of Agriculture; and U.S. Department of Agriculture, Defendants

O R D E R

Plaintiffs, the Sierra Club, Forest Watch, and The

Wilderness Society (collectively, the “Sierra Club”), bring this

action under the Administrative Procedure Act seeking declaratory

and injunctive relief. Specifically, they seek a judicial

declaration that defendants (collectively, the “Forest Service”)

violated the National Environmental Policy Act and the National

Forest Management Act when they approved two forest resource

management projects in the White Mountain National Forest: the

Than Forest Resource Management Project (the “Than Project”) and

the Batchelder Brook Vegetation Management Project (the

“Batchelder Brook Project”). Appearing as amici curiae and urging the court to deny the

Sierra Club the relief it seeks and to uphold defendants’

approval of the Than and Batchelder projects, are the following

entities: The State of New Hampshire; The Society for the

Protection of New Hampshire Forests; the Appalachian Mountain

Club; the New Hampshire Timberland Owners Association; the North

Country Council; and the Audubon Society of New Hampshire.1

Plaintiffs do not challenge the White Mountain National

Forest Land and Resource Management Plan, which was implemented

in 2005. Nor do they directly challenge the merits of the two

forest resource management projects at issue in this case (though

they plainly do not approve of them). Instead, plaintiffs assert

that defendants failed to apply the proper statutory and

regulatory standards when deciding whether to approve those

projects. Accordingly, the court is not called upon to consider

either the wisdom or the propriety of the forest resource

management projects at issue in this case. Rather, the narrow

1 “Amicus curiae” is a Latin phrase meaning “friend of the court.” An amicus is not a party to the litigation and, therefore, does not necessarily represent the interests of any party. Instead, the role of an amicus is to assist the court “in cases of general public interest by making suggestions to the court, by providing supplementary assistance to existing counsel, and by insuring a complete and plenary presentation of difficult issues so that the court may reach a proper decision.” Newark Branch, N.A.A.C.P. v . Harrison, 940 F.2d 7 9 2 , 808 (3d Cir. 1991).

2 legal question presented is whether defendants followed the

correct procedures and applied the correct statutory and

regulatory standards in approving those projects. For the

reasons discussed below, the court concludes that they did.

Background

I. The White Mountain National Forest.

The White Mountain National Forest (“WMNF”) was established

under the Weeks Law of 1911, which authorized the Secretary of

Agriculture to purchase land for the National Forest System. The

first land purchase for the WMNF occurred in 1914 and, since

then, the forest has grown to encompass nearly 800,000 acres in

northern New Hampshire and western Maine. Among other things,

the WMNF contains 48 summits of 4,000 feet and higher, both

softwood and northern hardwood trees, and a wide variety of

plants, birds, fish, and other species.

The WMNF is administered by the Forest Service in accordance

with, and to achieve the objectives established i n , the

comprehensive White Mountain National Forest Land and Resource

Management Plan (the “Forest Plan”). The Forest Plan is the

product of nine years of research and planning, as well as an

extraordinary level of public involvement. The current Forest

3 Plan was adopted in September of 2005. Among other things, it

designates 34,500 acres as Recommended Wilderness and 358,000

acres as “General Forest Management Lands.” Within the General

Forest Management Lands, approximately 281,000 acres are

considered suitable for timber harvesting and, of that total,

97,400 acres (approximately one-third) are located within areas

inventoried as “roadless” (discussed below). The Forest Plan

allows timber harvesting on approximately 3,400 acres annually,

which is less than one-half of one percent of the overall acreage

within the WMNF. See Forest Plan, Appendix B , page B-4.

The WMNF is divided into 15 management areas. Id. at page

3-2. As to each, the Forest Plan identifies a purpose, the

desired condition of the land, and the standards and guidelines

for managing that land. The Forest Plan i s , then, somewhat

analagous to a city’s zoning ordinance. The objectives of the

Forest Plan and the goals established with respect to each of the

15 management areas are achieved by, among other things,

implementation of site-level projects. See generally Forest

Plan, Preface at page v (“Relationship of the Forest Plan to

Site-level Projects”). All forest management, including site-

level projects, must comply with the provisions of the Forest

Plan. Under the Forest Plan, a site-level project’s

4 environmental analysis “tiers” to the Forest Plan’s Final

Environmental Impact Statement (“FEIS”). In other words, a

specific project’s environmental analysis may incorporate, by

reference, the information in the FEIS, without the need to

reiterate i t .

Shortly after the current Forest Plan was adopted in 2005,

the Forest Service began an on-the-ground evaluation to determine

what management actions were necessary to achieve the goals

established in the Forest Plan. In the areas covered by the Than

and Batchelder Brook projects, the Forest Service identified a

need for a wider array of habitats, as represented by vegetation

of differing age-classes, including those in the youngest

category, known as early-successional stages.

II. Inventoried Roadless Areas (“IRAs”).

Areas within a national forest that are designated as

“roadless” meet certain minimum criteria and have characteristics

related to natural and wilderness values. To meet the criteria

for roadless areas in the eastern United States, land must, among

other things, have the following characteristics: it has or is

regaining a natural, untrammeled appearance; improvements in the

area are being affected by the forces of nature (rather than

5 humans) and are disappearing or muted; the location of the area

is conducive to the perpetuation of wilderness values; the area

contains no more than one-half mile of improved road for each

1,000 acres; and twenty percent or less of the area has been the

subject of timber harvesting within the past 10 years.

As part of the recently-completed revision of the Forest

Plan, all land within the national forest was inventoried and

assessed to determine which of it qualified as “roadless” (also

known as “Inventoried Roadless Areas” or “IRAs”). That inventory

resulted in the recognition of 27 roadless areas within the WMNF,

totaling more than 403,000 acres (roughly one-half of the entire

national forest). All of those IRAs also meet the criteria for

designation as Wilderness Areas. See WMNF FEIS, page 2-7. See

generally Forest Plan, pages 3-9 through 3-18.

Once an area has qualified as an inventoried roadless area,

it is evaluated to determine if it has characteristics consistent

with Wilderness. Here, the Forest Plan recommended to Congress

that 34,500 acres within the WMNF be designated as Wilderness and

placed those lands into Management Area 9.1 (“Recommended

Wilderness”) until their recent designation to the Wilderness

Preservation System. The remaining roadless areas were assigned

6 to other management areas, based primarily on ecological

classification and management history. See, e.g., Batchelder

Brook Environmental Assessment at 3-93.

One of the concerns expressed by the Sierra Club is that the

proposed timber cutting under the Than and Batchelder Brook

projects will adversely affect the nature and character of the

land within the IRA’s and, in so doing, disqualify it from

eventual consideration as Wilderness. Defendants deny that this

is the case and say that even after the projects are complete,

the areas will still possess all the characteristics essential to

designation as “roadless” and will not be eliminated from future

consideration as Wilderness Areas.

III. The Than Forest Resource Management Project.

As noted above, the WMNF is divided into 15 Management

Areas, each with a specific management emphasis. The Than

Project falls within an area designated as Management Area 2.1,

or General Forest Management. The Forest Plan lists four

overarching management goals with respect to land designated

Management Area 2.1, which are:

1. Provide high quality hardwood sawtimber and other timber products on a sustained yield basis;

7 2. Provide a balanced mix of habitats for all wildlife species;

3. Provide opportunities for a full mix of recreational opportunities on the Forest from low-use hiking trails to highly developed campgrounds, and meet ROS objectives varying from urban to semi-private motorized, in different locations and varying by season or presence of management activities; and

4. Manage high-use or highly developed recreation areas to acceptable social and ecological standards; manage to retain some low-use and less developed areas.

Than Project Decision Notice, Than Vol. 3 , Tab 5 , page 2. 2

In reviewing the land comprising the Than Project, the

Forest Service concluded that it was necessary to create forest

conditions that included a more diverse age class of vegetation.

According to the Forest Service, land within the Than Project, as

it presently exists, does not contain adequate young forest

stands, and softwood stands are under-represented. Additionally,

the Forest Service concluded that it was necessary to improve the

2 The administrative record in this case is voluminous. It includes 15 binders of documents relating to the Batchelder Brook Project, and 18 binders relating to the Than Project. It also includes several separately bound documents like, for example, the Forest Plan, the FEIS, and the Assessment of Terrestrial Biodiversity in the White Mountain National Forest. References to particular documents in that record are to the numbered binder in which they are located and the tab at which they can be found (e.g., Than Vol. 6, Tab 2 ; B.B. Vol. 3 , Tab 1 ) .

8 habitat in the area by harvesting some of the mature and over-

mature northern hardwood stands, thereby making way for

regenerating stands of early-successional northern hardwoods.

The Service also determined that, to meet the habitat and stand

structure objectives established in the Forest Plan and

applicable to Management Area 2.1 lands, there was a need to

“release understory and co-dominant spruce, fir, and hemlock

trees from competing hardwoods in mixedwood stands. Id. at pages

3-4.

To accomplish those goals, several alternative proposals

were explored (including a proposal that would involve taking no

action whatsoever). Ultimately, the Forest Service decided to

implement “Alternative 4,” which is described in both the Than

Project Decision Notice and the Than Project Environmental

Assessment. The Decision Notice describes Alternative 4 as

follows:

[T]imber harvest will occur on approximately 929 acres, or approximately 6.5 percent of the analysis area. An estimated 6.0 million board feet of timber will be removed from the 34 treatment units. Up to 231 acres of early successional habitat will be created. Needed access is provided by three existing road systems (Forest Roads 233, 5 1 2 , and 5555) that are to receive maintenance or re-construction. One 200 foot section of new road construction is planned to access a landing for units adjacent to private land (Prospect Farm). This short road segment would allow for a landing site

9 on National Forest Land. These roads will be managed during and after implementation of this project as they currently are: closed with a gate or barrier to control access.

Connected actions that are also authorized by this decision include: timber stand improvement (100 acres of regeneration release); 6 miles of aquatic and fish habitat improvement; two short trail segment relocations totaling 1250 feet; moving parking for Bog Brook Trailhead from private land to Federal or Town land; removal of a dilapidated structure; and decommissioning and (as appropriate) obliterating eight specific roads identified through Road Analysis as no longer needed.

Than Project Decision Notice at 6-7.

Of particular concern to plaintiffs is the fact that a

portion of the Than Project involves activity within the Wild

River IRA, a roadless area encompassing approximately 71,000

acres. See WMNF FEIS at 2-10, Table 2-01. With regard to the

project’s incursion into that roadless area, the Forest Service

made the following observations and conclusions:

The Forest Plan recognized the importance of unroaded landscapes which provide older forest conditions and large blocks of non-manipulated landscapes valued for both ecological and social character. These unroaded landscapes make up 53% of the 800,000 acre White Mountain National Forest. The remaining 47 percent of the Forest includes management emphasis that provides for forestry activities, road systems for public access, wildlife habitat projects, non-motorized trails, Nordic and downhill ski trails, snowmobiling, and a host of other activities. Many of these

10 activities occur in areas allocated to the General Forest Management Area (or MA 2 . 1 ) .

The Than project area lies within this General Forest Management Area 2.1 identified in the Forest Plan. As part of the Forest Planning effort, an inventory of roadless characteristics was completed for the whole Forest, to (1) inform the allocation process and (2) help with Wilderness recommendations to Congress. Approximately 55% of this Than project area fall[s] into land that was inventoried as having “roadless” characteristics during the Forest Plan, despite having been actively managed for forest products over the last 40 years (EA, Chapter 3 , Figure 1 3 ) .

Than Project Decision Notice at 1 2 . In the end, the Forest

Service concluded that implementation of the Than Project would

“not significantly alter the character of the area or the

qualities which qualified it for inclusion in the inventory . . .

because the harvests are of limited intensity and minimal road

systems will be used. . . . The [Environmental Assessment]

demonstrates that actions proposed in Alternative 4 will not have

a lasting or significant effect on the roadless character of the

area.” Id.

IV. The Batchelder Brook Vegetation Management Project.

Like the Than Project, the Batchelder Brook Project is a

site-level forest resource management project proposed for land

located entirely within Management Area 2.1, part of the roughly

one-half of the WMNF where activities such as timber management,

11 road systems for public access, developed recreational areas, ski

areas, and snowmobiling are emphasized. A portion of the project

also falls within the boundaries of the South Carr Mountain IRA,

a roadless area that encompasses approximately 22,000 acres. See

WMNF FEIS at 2-10, Table 2-01. Accordingly, the Forest Service

recognized the need to consider the effects of the proposed

project on the roadless characteristics of that area.

The Batchelder Brook Environmental Assessment describes the

land subject to the project as follows:

The project area consists of approximately 3,700 acres of National forest System Lands . . . . It has a history of agricultural use dating back to the early 1800s, and since the early 1900s has naturally reverted to forest land. Since the 1940s it has been actively managed for wildlife habitat and forest products. The most recent timber harvests in the project area were the Clifford Brook and Batchelder Brook timber sales in the 1990s. Besides timber harvest, the area offers a wide variety of recreational activities, including hiking, scenic and fall foliage viewing, snowmobiling, mountain biking, snowshoeing, wildlife watching, hunting, fishing, and cutting Christmas trees and firewood.

Batchelder Brook Project Environmental Analysis, B.B. Vol. 3 , Tab

1 , page 1-2. The project itself provides for the harvesting of 3

million board feet of timber from approximately 380 acres of

Management Area 2.1 land, including approximately 140 acres of

land that is also within the South Carr Mountain IRA. See

12 generally Batchelder Brook EA at 1-7 through 1-10 (discussing the

“proposed action,” also known as “Alternative 2 ” ) .

Standard of Review

As noted above, plaintiffs bring this action pursuant to the

Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”),

asserting that defendants violated the National Environmental

Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”) and the National

Forest Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”). Given

the procedural posture of this case - that i s , an appeal of an

agency’s administrative decision - there are no genuinely

disputed material facts. Consequently, the sole question

presented is legal in nature: whether plaintiffs have carried

their burden of proof and established that defendants’ decisions

to approve the Than and Batchelder Brook forest resource

management projects were “arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with applicable law.”

5 U.S.C. § 706(2)(A). See generally Utah Environmental Congress

v . Russell, 518 F.3d 8 1 7 , 823 (10th Cir. 2008) (“As neither the

NFMA nor NEPA provide[s] a private right of action, we review the

Forest Service’s approval of the Project as a final agency action

under the Administrative Procedure Act.”).

13 With regard to judicial review of agency actions, the court

of appeals for this circuit has observed that:

the task of a court reviewing agency action under the [Administrative Procedure Act’s] “arbitrary and capricious” standard, 5 U.S.C. § 706(2), is to determine whether the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made. If the agency decision was based on a consideration of the relevant factors and there has not been a clear error of judgment, then the agency decision was not arbitrary or capricious.

Dubois v . U.S. Dep’t of Agric., 102 F.3d 1273, 1284-85 (1st Cir.

1996) (emphasis in original) (citations and internal punctuation

omitted). The “arbitrary and capricious” standard i s , then, a

highly deferential one, and the Forest Service’s decisions are

entitled to a “presumption of regularity.” Citizens to Preserve

Overton Park, Inc. v . Volpe, 401 U.S. 4 0 2 , 416 (1971). See also

Baltimore Gas & Elec. v . Natural Res. Def. Council, Inc., 462

U.S. 8 7 , 103 (1983) (“When examining this kind of scientific

determination . . . a reviewing court must generally be at its

most deferential.”); Adams v . United States EPA, 38 F.3d 4 3 , 49

(1st Cir. 1994) (“A court should not set aside agency actions as

arbitrary and capricious unless the actions lack a rational

basis. The scope of review under the ‘arbitrary and capricious’

standard is therefore narrow, and a court should not substitute

14 its judgment for that of the agency.”) (citations omitted)

(emphasis supplied).

Discussion

In their amended complaint (document n o . 1 5 ) , plaintiffs

advance five distinct attacks on defendants’ approval of the Than

and Batchelder Brook Projects, asserting that: (1) defendants

applied the wrong federal regulations in evaluating (and

ultimately approving) the projects; (2) defendants violated NEPA,

its implementing regulations, and the APA by failing to

adequately consider numerous potential adverse environmental

consequences of the projects; (3) defendants did not comply with

the Regional Soil Quality Standards, by failing to analyze the

soil from 13 units in the Than Project and from 21 units in the

Batchelder Brook Project; (4) defendants’ Environmental

Assessments and Decision Notices were arbitrary and capricious,

an abuse of discretion, and not in accordance with governing law

because the Forest Service failed to prepare an Environmental

Impact Statement for either project; and (5) defendants violated

NEPA and its implementing regulations and otherwise acted

arbitrarily and capriciously by failing to make the Finding of No

Significant Impact Statement for either project available to the

public for 30 days. Defendants deny each of those claims.

15 I. Statutory and Regulatory Framework.

A. NEPA.

The National Environmental Policy Act “declares a broad

national commitment to protecting and promoting environmental

quality,” Dubois, 102 F.3d at 1285, and establishes two goals.

“First, it places upon an agency the obligation to consider every

significant aspect of the environmental impact of a proposed

action. Second, it ensures that the agency will inform the

public that it has indeed considered environmental concerns in

its decisionmaking process.” Baltimore Gas & Elec., 462 U.S. at

97 (citations and internal punctuation omitted). See also

Carcieri v . Kempthorne, 497 F.3d 1 5 , 46 (1st Cir. 2007). But, as

the Supreme Court has observed, when Congress enacted NEPA, it

“did not require agencies to elevate environmental concerns over

other appropriate considerations. Rather, it required only that

the agency take a ‘hard look’ at the environmental consequences

before taking a major action.” Baltimore Gas & Elec., 462 U.S.

at 97 (citation omitted). It is the obligation of the courts

“simply to ensure that the agency has adequately considered and

disclosed the environmental impact of its actions and that its

decision is not arbitrary or capricious.” Id. at 97-98.

16 To meet its obligations under NEPA, the Forest Service must

determine whether a proposed action will have a substantial

environmental impact. “In conducting this analysis, the Forest

Service must prepare one of the following: (1) an environmental

impact statement, (2) an environmental assessment, or (3) a

categorical exclusion.” Utah Environmental Congress v . Bosworth,

443 F.3d 7 3 2 , 736 (10th Cir. 2006) (“UEC III”). In this case,

neither party asserts that the Than or Batchelder Brook project

was eligible for a categorical exclusion. Consequently, one of

the questions presented is whether the Forest Service’s

preparation of environmental assessments for those projects was

sufficient, or whether it should have gone further and prepared

an environmental impact statement for one or both.

An environmental impact statement involves the most rigorous analysis, and is required if a proposed action will “significantly affect the quality of the human environment.”

If an agency is uncertain whether the proposed action will significantly affect the environment, it may prepare a considerably less detailed environmental assessment. An environmental assessment provides “sufficient evidence and analysis” to determine whether a proposed project will create a significant effect on the environment. If s o , the agency must then develop an environmental impact statement; if not, the environmental assessment results in a “Finding of No Significant Impact,” and no further agency action is required.

Id. (citations and footnote omitted).

17 B. NFMA.

The National Forest Management Act provides that the

“Secretary of Agriculture shall develop, maintain, and, as

appropriate, revise land and resource management plans for units

of the National Forest System.” 16 U.S.C. § 1604(a). Those land

and resource management plans are commonly known as “forest

plans.”

The Forest Service manages each forest unit at two different levels: (1) programmatic and (2) project.

At the programmatic level, the Forest Service creates general forest-wide planning goals memorialized in a forest plan. Because the Forest Service must account for a variety of different interests, each forest plan envisions the forest will be used for multiple purposes, including “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” At the same time, the forest plan provides for “diversity of plant and animal communities based on the suitability and capability of the specific land area.”

At the project or site-specific level, the Forest Service implements the forest plan by approving or disapproving particular projects using an environmental impact statement, an environmental assessment, or a categorical exclusion. Projects must comply with the applicable forest plan.

UEC I I I , 443 F.3d at 736-37 (citations omitted).

Here, as noted above, the Forest Service prepared an

environmental impact statement as part of the nine-year process

of revising the Forest Plan. As to the two site-level projects

18 at issue in this case, however, the Forest Service began by

preparing environmental assessments (which incorporated the

research, analysis, and conclusions set forth in the recently-

completed forest-wide environmental impact statement). And, when

each of those environmental assessments revealed that the subject

site-level project would have no significant impact on the

environment, the Forest Service issued a Finding of No

Significant Impact or “FONSI.”

C. NFMA’s Implementing Regulations.

The relevant NFMA implementing regulations have a complex,

if not convoluted, history, characterized by uncertainty as to

their precise meaning and application. Further complicating

matters is the fact that a federal court has enjoined

implementation of the most recent iteration of those regulations.

See Citizens for Better Forestry v . U.S. Dep’t of Agriculture,

481 F. Supp. 2d 1059 (N.D. Cal. 2007) (enjoining the Forest

Service from implementing or applying the 2005 regulations). The

Court of Appeals for the Tenth Circuit has provided a detailed,

comprehensible, summary of that complex regulatory history in

Utah Environmental Congress v . Troyer, 479 F.3d 1269, 1272-74

(10th Cir. 2007). In short, that history is as follows.

19 In 1979, pursuant to the requirements of NFMA, the United

States Department of Agriculture promulgated regulations that

“set out the process for the development and revision of land

management plans for units of the National Forest System, and

regulations that establish management planning standards and

guidelines.” UEC I I I , 443 F.3d at 737 (quoting 47 Fed. Reg.

43,026, 43037 (Sept. 3 0 , 1982)). Those regulations governed the

Forest Service’s management of national forests at both the

programmatic (i.e., forest plan) and project levels and they were

codified at 36 C.F.R. § 219 (the “1982 Rule”).

In 2000, the USDA promulgated regulations to replace the

1982 Rule and which incorporated “significant new scientific

information and other lessons the agency ha[d] learned since it

began implementing NFMA planning regulations in 1982.” 65 Fed.

Reg. 67515 (Nov. 2 0 , 2000). In connection with the promulgation

of the 2000 Rule, it was also observed that:

Based on [ ] changes in the state of scientific and technical knowledge, the Forest Service’s extensive experience, and a series of systematic reviews, the Forest Service has concluded that 36 C.F.R. part 219 must be revised in order to better reflect current knowledge and practices and to better meet the conservation challenges of the future. Indeed, while the 1982 planning rule was appropriate for developing the first round of [forest] plans from scratch, it is no longer well suited for implementing the NFMA or responding to the ecological, social, and economic

20 issues currently facing the national forests and grasslands.

Id. at 67516. Accordingly, a “key element in the [2000] rule is

greater emphasis on the use of science in planning. The final

rule requires the use of the best available science to give the

Forest Service and the people, communities, and organizations

involved in the planning process sound information on which to

make recommendations about the resource conditions and outcomes

they desire. The final rule incorporates science in the planning

and decisionmaking process in a number of ways.” Id. at 67518

To facilitate the transition from the 1982 Rule to the 2000

Rule, the new regulations contained a provision which allowed for

the continued use of the procedures set forth in the 1982 Rule

for Forest Plan revisions already in progress. 36 C.F.R. §

219.35. With respect to the implementation of Forest Plans

during the transition period:

responsible officials would be required to “consider the best available science in implementing and, if appropriate, amending” the then-existing forest plans (i.e., forest plans that had yet to be revised). At the same time, however, § 219.35(d) also stated: “Site- specific decisions made by the responsible official 3 years from November 9, 2000 and afterward must be in conformance with the provisions of this subpart.” Thus, responsible officials were left to resolve the

21 tension between § 219.35(a)’s mandate that they “consider the best available science in implementing” existing forest plans during the transition period, and § 219.35(d)’s provision that site-specific decisions did not have to conform to “this subpart,” including, presumably, § 219.35(a), until November 9, 2003 and thereafter.

Utah Environmental Congress v . Troyer, 479 F.3d at 1273 (quoting

36 C.F.R. § 219.35).

In other words, there was some confusion as to whether,

under the 2000 Rule, new site-level projects (such as those at

issue here) still had to satisfy the requirements set forth in

the 1982 Rule, or whether they had to comply with the new “best

available science” standard of the 2000 Rule. S o , to address the

matter, the USDA issued an “Interpretive Rule” in 2004 to clarify

the purpose of the transition provision in the 2000 Rule.

The Department is clarifying the intent of the transition provisions of paragraphs (a) and (b) of this section with regard to the consideration and use of the best available science to inform project decisionmaking that implements a land management plan as follows:

Under the transition provisions of paragraph ( a ) , the responsible official must consider the best available science in implementing and, if appropriate, in amending existing plans. Paragraph (b) allows the responsible official to elect to prepare plan amendments and revisions using the provisions of the 1982 planning regulation until a new final planning rule is adopted. A proposed rule to revise the November 9, 2000, planning regulations was published in

22 the Federal Register on December 6, 2002 (67 FR 72770). A new final rule has not been promulgated.

Until a new final rule is promulgated, the transition provisions of § 219.35 remain in effect. The 1982 rule is not in effect. During the transition period, responsible officials may use the provisions of the 1982 rule to prepare plan amendments and revisions. Projects implementing land management plans must comply with the transition provisions of § 219.35, but not any other provisions of the 2000 planning rule. Projects implementing land management plans and plan amendments, as appropriate, must be developed considering the best available science in accordance with § 219.35(a). Projects implementing land management plans must be consistent with the provisions of the governing plan.

69 Fed. Reg. 58055, 58057 (“National Forest System Land and

Resource Management Planning; Use of Best Available Science in

Implementing Land Management Plans”) (emphasis supplied).

Finally, as noted above, in March of 2007, the Forest

Service was enjoined from implementing the 2005 Rule. As a

consequence, the 2000 Rule continues to govern the amendment and

implementation (through site-level projects) of forest plans.

II. Regulations Applicable to the WMNF Site-Level Projects.

The Sierra Club asserts that the Forest Service erred by

failing to apply the 1982 regulations to the Than and Batchelder

Brook projects. And, says the Sierra Club, the Forest Service

compounded its error by improperly applying the (enjoined) 2005

23 Rule and its requirement that the Forest Service consider the

“best available science,” without reference to the Management

Indicator Species (the 1982 regulations employ, among other

things, the Management Indicator Species or “MIS” rather than the

“best available science” standard).

First, the Sierra Club asserts that “where a Forest Plan has

been adopted pursuant to a set of regulations, the projects

implementing that plan must also comply with those regulations.”

Plaintiffs’ Reply Memorandum (document n o . 48) at 8 . But, the

fact that the Forest Plan was, after nine years of research and

planning, amended in 2005 pursuant to the 1982 regulations does

not compel the conclusion that the Forest Service is forever

bound to apply the 1982 regulations when evaluating site-level

projects under that Forest Plan. Appellate decisions on this

point are clear. The courts of appeals for both the Second and

Tenth Circuits have concluded that site-level projects

implemented during the “transition period” should be evaluated

under the 2000 Rule.

The transition provisions mandate that “[d]uring the transition period, the responsible official must consider the best available science in implementing . . . the current plan.” 36 C.F.R. § 219.35(a) (emphasis added); cf. § 219.35(b) (“If, as of November 9, 2000, a plan revision or amendment has been initiated under the 1982 planning regulations . . . the

24 responsible official may complete the amendment or revision process under the 1982 regulations”) (emphasis added). This language is the sole direction to the Forest Service regarding project-level actions. Nonetheless, it leaves little doubt that the Forest Service is limited to consideration of the best available science when approving a project during the transition period. The interpretative rule confirms this interpretation, stating in no uncertain terms that “projects proposed during the transition period should be developed considering the best available science.” 69 Fed.Reg. 58,055, 58,056 (Sept. 2 9 , 2004) (emphasis added). While it is true that interpretative rules are not legally binding on this court, an agency’s interpretation should be given substantial deference unless the interpretation is plainly erroneous. Here, the interpretative rule clearly concludes the 1982 rules are no longer applicable for projects proposed during the transition period. Thus, any projects proposed during the transition period must conform with the best available science standard set forth in the 2000 transition provisions.

UEC I I I , 443 F.3d at 746-47 (emphasis in original). See also

Forest Watch v . U.S. Forest Service, 410 F.3d 115, 118 (2d Cir.

2005).

The cases cited by plaintiffs do not compel a different

conclusion. Those cases stand for the logical proposition that

if a forest plan specifically adopts the requirements of the 1982

regulations as part of the forest plan itself, subsequent

implementation of site-level projects must adhere to those

regulations — not because they are applicable as “regulations,”

but because, as noted above, all site-level projects must comply

25 with the provisions of the forest plan, and incorporated

regulations become part of the plan. See, e.g., Ecology Center,

Inc. v . U.S. Forest Service, 451 F.3d 1183, 1190 (10th Cir. 2006)

(“Forest plans may require particular standards to be followed

regardless of later changes in the regulations. But this is not

the case here. The Forest Plan ‘does not explicitly reference or

adopt § 219.19 of the 1982 rules, concerning the selection and

monitoring of management indicator species. Therefore, we cannot

read the Forest Plan to adopt the 1982 rules.”) (citation

omitted); Idaho Wildlife Federation v . Tower, 2006 WL 988494 (D.

Idaho April 1 3 , 2006) (concluding that because the forest plan

adopted a particular species of bird as a Management Indicator

Species - a concept not present in the 2000 Rule - the Forest

Service was obliged to comply with the 1982 regulations). In

this case, however, plaintiffs do not assert that the Forest Plan

specifically incorporated provisions of the 1982 regulations.

Second, contrary to plaintiffs’ suggestion, the record

reveals that the Forest Service properly applied the 2000

transition rules (and the requirement that the Forest Service

apply the “best available science”) to the Than and Batchelder

Brook projects. In support of their assertion that the Forest

Service improperly employed the (enjoined) 2005 Rule, plaintiffs

26 point to a single reference in the Environmental Assessment

prepared for the Than Project - a document consisting of more

than 200 pages. See Than EA, Than Vol. 3 , Tab 6, page 3-81. The

Forest Service explains that single reference as follows:

A Public Comment Package for the Than Project was distributed in January 2006, initiating the public process for the project. An EA [Environmental Assessment] was finalized and a DN [decision notice] signed in May 2006. In August 2006, the original DN was withdrawn for narrow reasons. A revised EA was sent to the public for comment in November 2006. On March 3 0 , 2007, just before the revised EA was finalized and the DN issued, the 2005 Rules were struck down. Given the decision, the Forest Service reviewed the EA to remove any references to the invalidated regulations and modify the analysis. Unfortunately, one citation was missed. That is hardly persuasive evidence that the decision was based on the wrong analytical framework.

Defendants’ Memorandum (document n o . 45-2) at 15 (citations

omitted and emphasis supplied). The court agrees. A single,

stray reference to the 2005 Rule (which the Forest Service

asserts was a typographical error) does not demonstrate that the

Forest Service employed the wrong regulations and applied the

wrong standard in assessing the environmental impact of either

the Than or Batchelder Brook project, nor does it reveal that the

Forest Service failed to properly analyze those projects under

the 2000 Rule.

27 Moreover, as the Forest Service points out, the Sierra Club

has not shown how the Forest Service failed to consider the “best

available science,” as was required by the 2000 Rule. To be

sure, the Sierra Club claims that the Forest Service’s failure to

consider the best available science is evidenced by its alleged

refusal to “consider its own comprehensive study that

acknowledges that there is no need at the landscape level to

create more early-successional, regeneration-age class across the

forest.” Plaintiffs’ Reply Memorandum at 1 4 . The study

referenced by the Sierra Club is the “Assessment of Terrestrial

Biodiversity in the White Mountain National Forest Region,”

prepared by D r . Michael L . Cline, et a l . (December, 1999)

(separately bound exhibit). But, contrary to plaintiffs’

suggestion, the record discloses that the Forest Service did

consider the Cline report and, in fact, submitted it for peer

review. See, e.g., B.B. Vol. 1 1 , Tabs 25 and 2 6 .

In summarizing the peer review comments it received on the

Cline report, the Forest Service observed that “most reviewers

expressed concern with some of the methods used by Cline et a l .

to analyze data or with the representation of information and

conclusions drawn in the document. Several indicated that the

Forest Service needed to gather additional literature and data

28 and then re-analyze the resulting complete set of information to

have the best available science in our Forest Plan revision

effort.” Development and Use of the Terrestrial Assessment in

Forest Plan Revision, B.B. Vol. 1 1 , Tab 2 4 . The Forest Service

went on to explain that the Cline report “was not cited in the

main body of the Final Environmental Impact Statement (FEIS) for

the Forest Plan revision effort because it was not a primary

source of new data. Interdisciplinary team members used i t , and

the peer review letters, to identify sources of information that

were then reviewed independently by team members. It is included

in the listing of literature cited in the FEIS because it was

cited in a response to a comment from the public.” Id. Rather

than supporting plaintiffs’ assertion that the Forest Service

“failed to identify and actually consider its own understanding

of the ‘best available science,’” Plaintiffs’ Reply Memorandum at

1 4 , the manner in which the Forest Service employed the Cline

report (and the peer review letters) suggests that it did use the

best available science in reviewing the Batchelder Brook project.

At a minimum, the Sierra Club has not shown that the manner in

which the Forest Service considered the Cline report was

arbitrary and capricious or that it amounted to an abuse of

discretion.

29 The record is entirely consistent with the Forest Service’s

explanation of its use of the 2000 Rule: when application of the

2005 Rule was enjoined, the Forest Service attempted to remove

all references to that rule and reviewed the projects to make

certain that they had been properly evaluated under the 2000

Rule’s “best available science” standard.3 See Defendants’ Reply

Memorandum (document n o . 49) at 8-9 (“As a practical matter,

after the 2005 regulations were enjoined the Forest Service

reviewed the EA to confirm that it considered the best available

science. Since the EA conformed to the Forest [Service’s]

practice of considering the best available science, there was no

need for specific changes to the EA other than to remove

references to the 2005 regulations. See, e.g., Than Vol. 17 Tabs

6-12; see also Than DN at 2 6 , Than Vol. 2 , Tab 5 at 5-7, 26-30

(Biological Evaluation), Vol. 1 6 , Tab 15 at 26-27, Than EA at 3-

102 - 105.”). Plaintiffs have, then, failed to demonstrate that

the Forest Service was arbitrary and capricious in its

application of the 2000 Rule, nor have they shown that the Forest

Service applied the wrong rule.

3 Parenthetically, the court notes that both the 2000 transition rules and the (enjoined) 2005 Rule mandate the use of “best available science.”

30 III. Wilderness Potential and Roadless Character and Values.

Next, plaintiffs assert that the Environmental Assessments

prepared for both the Than and Batchelder Brook projects “fail to

adequately assess how the proposed logging, clear-cutting, skid

trails, and soil disturbance would affect the wilderness

characteristics and values of these roadless areas.” Plaintiffs’

memorandum at 2 0 . The Forest Service responds that it gave

through and extensive consideration to the wilderness

characteristics of the subject lands as part of the multi-year

process of revising the Forest Plan. As a part of that process,

the Forest Service conducted an inventory of all land within the

WMNF to determine which areas met the criteria as potential

Wilderness Areas.

As a result of the forest-wide inventory, 27 roadless areas were identified totaling 403,144 acres. Despite nearly 20 years of management (including timber harvest) under the then-existing Forest Plan, this was an additional 160,000 acres beyond the roadless areas identified for the 1986 [Forest] Plan. . . . Based on public input and various criteria, the Forest [Service] evaluated which, if any, of these areas should be recommended to Congress for study as Wilderness. This was a substantial undertaking. The Regional Forester ultimately recommended 34,500 acres for designation. This recommendation was accepted by Congress, so that now approximately 18% of the Forest is managed as Wilderness. Areas not included in recommendation for Wilderness study were allocated to the other 14 MAs [Management Areas].

31 Defendants’ memorandum at 18-19 (citations omitted). The Forest

Service concludes by asserting:

Plaintiffs argue that NFMA compels the reconsideration at the project level because the decision “will irretrievably commit these areas to nonwilderness uses for the long term,” and impacts are to be considered before actions are taken. Plaintiffs’ assumption that these project areas are irretrievably committed to non- wilderness is belied, however, by the record and recent Congressional action. This position also gives short shrift to the recent Forest-wide analysis of land allocations in the FEIS for the Forest Plan, and the balancing done to designate the lands at issue for uses compatible with vegetation management. The Forest Service is entitled to rely on those allocations and need not reconsider them every time a site-specific decision is made. A holding to the contrary would eviscerate the very purpose of a forest plan, and burden the Forest Service with the sisyphean feat of forever starting over in its environmental evaluations, regardless of the usefulness of such efforts.

Id. at 19-20 (citations and internal punctuation omitted). In

other words, the Forest Service contends that, as part of the

recent revision of the Forest Plan (which included the

preparation of a comprehensive Environmental Impact Statement),

it gave substantial consideration to the wilderness

characteristics of all the land within the WMNF, including the

land within the Than and Batchelder Brook projects. And, says

the Forest Service, there is no legal, regulatory, or practical,

common sense reason to force it to repeat that effort.

32 In support of their position, plaintiffs rely upon the

opinion issued by the Ninth Circuit Court of Appeals in

California v . Block, 690 F.2d 753 (9th Cir. 1982). Specifically,

plaintiffs quote Block for the proposition that “the ‘critical

decision’ to commit [roadless] areas for nonwilderness uses, at

least for the next ten to fifteen years, is ‘irreversible and

irretrievable.’ The site-specific impact of this decisive

allocative decision must therefore be carefully scrutinized now

and not when specific development proposals are made.” Block,

690 F.2d at 763 (emphasis supplied). See also Plaintiffs’

memorandum at 1 6 ; Plaintiffs’ Reply Memorandum (document n o . 48)

at 18-23. Importantly, however, as the highlighted language

above suggests, the situation presented in Block was decidedly

different from that presented in this case.

In Block, the court addressed a challenge to the Forest

Service’s nation-wide effort to “evaluate programmatically the

roadless areas in the [entire] National Forest System.” Id. at

758. As part of that project (known as “RARE I I ” ) , the Forest

Service inventoried all roadless areas within the National Forest

System (approximately 62 million acres) and assigned each to one

of three planning categories: Wilderness, Further Planning, and

Nonwilderness. The plaintiffs in Block challenged the RARE II

33 final environmental impact statement as it related to the

proposed designation of roadless areas as Nonwilderness,

asserting that the FEIS failed to adequately examine the site-

specific impact of the proposed action. The court of appeals

agreed, concluding that the FEIS failed to adequately assess the

wilderness values of each area and neglected to evaluate the

impact of Nonwilderness designations upon each area’s wilderness

characteristics and value. Id. at 764. Plaintiffs focus on that

aspect of the court’s holding and urge this court to impose the

same requirement on the Forest Service in this case. That i s ,

plaintiffs assert that the Forest Service failed to adequately

consider the wilderness characteristics and values of the Than

and Batchelder Brook sites prior to authorizing forest management

(including timber cutting) activities within them. The court

disagrees.

As the Forest Service points out, Block addressed the

requirements of an FEIS in the context of a situation in which

areas within the National Forest System were being designated

into one of three general management categories. Precisely that

type of categorization (although on a smaller, and more refined,

scale) was undertaken in this case as part of the preparation of

the 2005 amendments to the Forest Plan. That i s , as part of the

34 process of revising the Forest Plan, the Forest Service

inventoried all land within the WMNF, evaluated its

characteristics, prepared an FEIS, and, ultimately, placed all

land within the forest (other than that recommended for

Wilderness designation) into one of 14 Management Areas. And, as

noted above, the Forest Plan placed the land encompassing the

Than and Batchelder Brook projects into MA 2.1 or “General Forest

Management.” That plan was not challenged. Consequently, the

analysis plaintiffs seek (and the analysis mandated by Block) has

already been performed and disclosed in the FEIS. See generally

Defendants’ Reply Memorandum at 9-17. And, importantly, neither

the 2005 Forest Plan nor the FEIS is the subject of plaintiffs’

complaint, since the time for such challenges has lapsed.

Seemingly recognizing that problem, plaintiffs attempt to

impose upon the environmental assessments prepared in connection

with the Than and Batchelder Brook site-level projects the

requirements applicable to Forest Plan environmental impact

statements, as suggested in Block (and later incorporated into

the Forest Service Handbook). See Plaintiffs’ memorandum at 1 7 .

Plaintiffs have not, however, pointed to any legal authority, or

persuasive reasons, for imposing such redundant requirements. If

plaintiffs thought the WMNF FEIS failed to include the type of

35 analysis required by both Block and the Forest Service Handbook

when the land encompassing the Than and Batchelder Brooks

projects was submitted to the General Forest Management category,

they could have brought a timely challenge to the 2005 Forest

Plan and its FEIS.

To the extent the Sierra Club asserts that the environmental

assessments prepared in connection with the Than and Batchelder

Brook projects fail to adequately address the impacts of those

projects on the character and values of unroaded areas, the

administrative record belies that claim. Both the Than EA and

the Batchelder Brook EA reveal that the Forest Service took the

required “hard look” at the effects of the proposed projects on

the unroaded characteristics of the areas. See Than EA, Than

Vol. 3 , Tab 5 , pages 3-107 through 3-117; Batchelder Brook EA,

B.B. Vol. 3 , Tab 1 , pages 3-93 through 3-103 (noting that the

effects of the project “would not result in an irreversible or

irretrievable change in the condition of the land or its

eligibility as potential wilderness.”). See generally Kleppe v .

Sierra Club, 427 U.S. 3 9 0 , 410 n.21 (1976) (“Neither [NEPA] nor

its legislative history contemplates that a court should

substitute its judgment for that of the agency as to the

environmental consequences of its actions. The only role for a

36 court is to insure that the agency has taken a ‘hard look’ at

environmental consequences; it cannot interject itself within the

area of discretion of the executive as to the choice of the

action to be taken.”)(citations and internal punctuation

omitted).

IV. Soil and Water Resources.

Next, plaintiffs challenge the Forest Service’s alleged

failure to properly employ the Regional Soil Quality Standard

(“RSQS”) to evaluate the potential effects of the Than and

Batchelder Brook projects on soil quality and erosion. See

generally Forest Service Handbook Eastern Region, FSH 2509.18 -

Soil Management, Chapter 2 - Soil Quality Monitoring, Than Vol.

7 , Tab 1 3 . Specifically, plaintiffs assert that:

Soil and water quality degradation issues are very sensitive to each site’s conditions, and effects may be felt from disturbance in even small areas. The agency’s failure to use RSQS for site-specific analysis and provide an analysis for each harvest unit results in an incomplete examination. The Forest Service violated NFMA by not applying the RSQS to the projects and acted arbitrarily and capriciously in violation of the APA.

Plaintiffs’ Reply Memorandum at 31 (emphasis supplied). See also

Plaintiffs’ Memorandum at 21 (alleging that the Forest Service

“never analyzed thirteen [harvest] units in the Than project area

37 and never analyzed twenty-one units in the Batchelder project

area”).

The NFMA charges the Secretary of Agriculture and, through

him, the Forest Service, with ensuring that “timber will be

harvested from National Forest System lands only where soil,

slope, or other watershed conditions will not be irreversibly

damaged.” 16 U.S.C. § 1604(g)(3)(E). And, as noted above, any

site-level projects (like those at issue here) must comply with

the provisions of the Forest Plan. For its part, the RSQS

provides that, unless the Forest Plan directs otherwise, the

Forest Service should not allow activity within a land unit if it

would create “detrimental” soil conditions (specifically defined

in the RSQS) in fifteen percent or more of the activity area.

RSQS, Than Vol. 7 , Tab 1 3 , page 6 (“Adhere to soil quality

standards identified in land management plan direction. Lacking

a more specific forest direction, use 1 5 % , or more, of a land

unit scale area in detrimental soil condition as a standard for

potentially detrimental soil disturbance.”).

There is no doubt that the Forest Service conducted soil

analyses of the land within the WMNF as part of the process of

revising the Forest Plan. Nor is there any dispute that the

38 Forest Service conducted soil analyses within areas covered by

both the Than and Batchelder Brook Projects as part of the

process of approving those projects. Plaintiffs’ point, however,

is that the Forest Service was required to do more. That i s ,

plaintiffs assert that the Forest Service was obliged to employ

the RSQS and analyze the potential soil impact of the proposed

projects on each individual harvest unit within those project

areas. The Forest Service’s use of a “sampling method” to

evaluate the potential impact of the projects on soil quality,

say plaintiffs, was insufficient.

The Forest Service advances three arguments in response.

First, it says the RSQS (which is a part of the Forest Service

Handbook) is an internal agency guideline which is not binding on

the Forest Service and is not enforceable by third parties. At

least two courts of appeals to address the issue have agreed.

The Court of Appeals for the Ninth Circuit wrote that:

Neither the Manual nor the Handbook satisfies either of the requirements in Fifty-Three Parrots [685 F.2d 1131 (9th Cir. 1982)]. First, the Manual and Handbook are not substantive in nature. [Previously], we explained in dictum that the Forest Service Manual merely establishes guidelines for the exercise of the Service’s prosecutorial discretion; it does not act as a binding limitation on the Service’s authority. The Manual and Handbook are a series of “[p]rocedures for the conduct of Forest Service activities.” 36 C.F.R. § 200.4(b), (c)(1) (1995).

39 The Manual and Handbook are not promulgated in accordance with the procedural requirements of the Administrative Procedure Act. Neither is published in the Federal Register or the Code of Federal Regulations. They are not subjected to notice and comment rulemaking; they are not regulations.

Nor are the Manual and Handbook promulgated pursuant to an independent congressional authority. The National Forest Management Act authorizes the Secretary to promulgate regulations, but the Manual and the Handbook are not regulations from the Secretary. 36 C.F.R. § 200.4(d)(1) (1995) (Chief of Forest Service promulgates rules in Manual and Handbook). The Manual and Handbook provisions are contemplated in a Service regulation, not in a congressional statute.

We hold that the Manual and Handbook do not have the independent force and effect of law.

Western Radio Services C o . v . Espy, 79 F.3d 896, 901 (9th Cir.

1996) (citations and internal punctuation omitted). See also

Stone Forest Indus. v . United States, 973 F.2d 1548, 1551 (Fed.

Cir. 1992) (holding that the Forest Service Handbook is “a

general guide for use by Forest Service employees,” which “does

not have the force and effect of law”).

Thus, says the Forest Service, it was obligated to analyze

the proposed site-level projects to make certain that they were

consistent with the requirements of the Forest Plan, not the RSQS

guidelines described in the Forest Service Handbook. And, the

Forest Service goes on to point out that the Than and Batchelder

Brook Environmental Assessments demonstrate that both projects

40 meet all the requirements of such site-level projects, as

established in the Forest Plan. See generally Than EA, Than Vol.

3 , Tab 6, pages 3-19 through 3-34; Batchelder Brook EA, B.B. Vol.

3 , Tab 1 , pages 3-6 through 3-20. See also Defendants’ Reply

Memorandum at 19-20.

Next, the Forest Service says that, contrary to plaintiffs’

suggestion, there is no statutory or regulatory requirement “to

use a particular sampling methodology or visit 100 percent of the

units within a timber harvest area.” Defendants’ Memorandum at

26. Accordingly, says the Forest Service, “the Agency expert

appropriately observed field conditions, reviewed applicable

scientific literature, and employed a reasonable sampling

methodology to evaluate soil conditions, assess potential

effects, and verify mitigation efficacy.” Id. See generally

Siskiyou Regional Edu. Project v . Goodman, 219 Fed. Appx. 6 9 2 ,

698 (9th Cir. 2007) (distinguishing the cases of Lands Council v .

Powell, 379 F.3d 738 (9th Cir. 2004), amended by 395 F.3d 1019

(9th Cir. 2005), and Ecology Center v . Austin, 430 F.3d 1057 (9th

Cir. 2005) - two opinions on which plaintiffs in this case rely

heavily - noting that “the record shows that the Forest Service

based its soil analysis on actual field surveys, not on some

model with no on-site inspection or verification”).

41 Finally, the Forest Service asserts that, even though it was

not required to apply the RSQS in evaluating the potential impact

the projects would have on soil erosion and compaction, its

analysis of those projects revealed that the total soil disturbed

by the proposed projects would likely be well within the limits

prescribed by the RSQS. See Than EA, Than Vol. 3 , Tab 6, page 3-

2 8 ; Batchelder Brook EA, B.B. Vol. 3 , Tab 1 , page 3-14.

As to plaintiffs’ claims concerning the Regional Soil

Quality Standard set forth in the Forest Service Handbook, the

court declines the invitation to hold that the Forest Service was

obligated to subject each harvest unit to the soil quality

analysis established in the RSQS. First, neither the Forest

Service Handbook nor the RSQS has the “independent force and

effect of law.” Western Radio Services, 79 F.3d at 901. See

also Stone Forest Indus, 973 F.2d at 1551. The RSQS i s , then,

aspirational rather than mandatory. See, e.g., RSQS, Than Vol.

7 , Tab 1 3 , page 3 , § 2.04b(1) (directing forest supervisors to

“consider, and incorporate when appropriate, regional soil

quality standards into the Forest Plan [and] [d]evelop and

implement forest-level soil quality standards when needed.”).

42 Additionally, the situation presented in this case is

factually distinct from those in Ecology Center and Lands Council

- the two cases upon which plaintiffs most heavily rely for the

proposition that the Forest Service was obligated to employ the

RSQS and conduct soil testing within each affected harvest unit.

In Ecology Center, despite having previously held that neither

the Forest Service Manual nor the Handbook was binding on the

Forest Service, see Western Radio Services, supra, the Court of

Appeals for the Ninth Circuit concluded that, under the specific

circumstances presented, the Forest Service was, nevertheless,

obligated to employ the RSQS.

Even assuming, arguendo, that the Standard does not have the independent force and effect of law with respect to the Lolo National Forest, it would nonetheless be arbitrary and capricious for the Forest Service to ignore it because both the draft EIS and final EIS discuss the Standard as if it is binding and claim that the Service developed the Project in compliance with its provisions. Thus, even if we were to agree that the Standard is merely advisory, we would then be compelled to find that the draft EIS and final EIS are misleading in violation of NEPA.

Ecology Center, 430 F.3d at 1069 (emphasis supplied).

Accordingly, the court held that by approving the challenged

project without employing the RSQS, the Forest Service violated

both NEPA (i.e., failed to give a “hard look” at the effects of

the project on soil quality) and NFMA and the APA (i.e., acted

43 arbitrarily and capriciously in approving the project without

adequate soil quality analysis).

In holding that the Forest Service violated NFMA when it

authorized challenged timber harvest activity in the Idaho

Panhandle National Forest, the court in Lands Council observed

that, in addition to the provisions of RSQS, the forest plan

itself prohibited any activity that would create detrimental soil

conditions in fifteen percent or more of the project area. 395

F.3d at 1034. Additionally, the court noted that the “Forest

Service did not walk, much less test, the land in the activity

area.” Id. Here, however, the Forest Service did conduct such

field testing in the project areas.

The facts presented in this case are plainly (and

materially) different from those presented in both Ecology Center

and Lands Council. First, the Sierra Club has not identified any

provisions in the Forest Plan that require use of the RSQS when

reviewing proposed site-level projects. Nor has the Sierra Club

pointed to any instances in which either the Than EA or

Batchelder Brook EA suggests that the project has been reviewed

in compliance with the RSQS. Rather than suggest that any

analysis has been conducted in accordance with the RSQS, the Than

44 and Batchelder Brook EAs simply predict that, given the research

and analysis actually performed, the adverse effects on soil

conditions as a result of the projects will likely be within the

tolerances allowed by the RSQS. See Than EA, Than Vol. 3 , Tab 1 ,

page 3-28 (predicting that the “cumulative effects from soil

erosion and compaction . . . are likely to be site specific,

limited in magnitude and duration, and well within the soil

disturbance limits established by the Soil Quality Standards for

the Eastern Region of the Forest Service”) (emphasis supplied);

Batchelder Brook EA, B.B. Vol. 3 , Tab 1 , page 3-14 (same).

For the reasons discussed above, the court concludes that

the Forest Service was not required to employ the RSQS to conduct

soil erosion and compaction analysis at the harvest unit level

prior to approving the Than and Batchelder Brook projects. And,

the Sierra Club has failed to demonstrate that, in light of the

soil analysis actually performed, the Forest Service’s approval

of those projects was arbitrary or capricious. Nor has the

Sierra Club shown that the Forest Service failed to take the

required “hard look” at the impact those projects would have on

soil conditions in the affected areas. As the Supreme Court has

observed, in cases like this, which involve highly scientific

and/or technical issues, “[r]esolving these issues requires a

45 high level of technical expertise [which] is properly left to the

informed discretion of the responsible federal agencies. Absent

a showing of arbitrary action, we must assume that the agencies

have exercised this discretion appropriately.” Kleppe v . Sierra

Club, 427 U.S. 3 9 0 , 412 (1976) (citation omitted).

V. Environmental Impact Statement.

Next, the Sierra Club asserts that, prior to approving the

Than and Batchelder Brook projects, the Forest Service should

have prepared comprehensive environmental impact statements,

rather than simply the environmental assessments that were

actually used. Specifically, plaintiffs claim that the “decision

to harvest timber from an [inventoried roadless area] requires a

site-specific and intensive level of scrutiny that the Than and

Batchelder Environmental Assessments (“EAs”) simply did not

undertake.” Plaintiffs’ Reply Memorandum at 2 8 . They go on to

assert that, “[g]iven the strong public interest in protecting

potential wilderness areas, it is essential that, before logging

and road building activities occur, the agency analyze the

effects in an Environmental Impact Statement and disclose to the

public the impacts of the Projects.” Id. See also Plaintiffs’

Memorandum at 2 3 .

46 As noted above, NEPA requires federal agencies to consider

the potential environmental impacts of agency decisions. As to

any agency action that could significantly affect the quality of

the human environment, the agency must prepare a comprehensive

environmental impact statement. But, to determine whether an

environmental impact statement is necessary - that i s , if the

project will likely have a substantial impact on the human

environment - agencies often begin by preparing an environmental

assessment. I f , based on the environmental assessment, the

agency determines that an environmental impact statement is not

necessary, it issues a “Finding of No Significant Impact” or

“FONSI.” See Neighborhood Ass’n of the Back Bay, Inc. v . Federal

Transit Admin., 463 F.3d 5 0 , 57 n.2 (1st Cir. 2006). Here, as

was the case in Back Bay, the agency “prepared an EA and a FONSI.

The FONSI found that the proposed project will have no

significant adverse impacts on the environment, and thus that an

EIS was not required.” Id. (citation and internal punctuation

To prevail on their claim that the Forest Service acted

arbitrarily and capriciously by failing to prepare an EIS for the

Than and Batchelder Brook projects, plaintiffs must do more than

simply identify potential shortcomings in the projects themselves

47 or their environmental assessments/decision notices. As the

Court of Appeals for the Fifth Circuit has observed, “in

attacking a decision not to prepare an EIS, more than an

allegation of deficiencies is necessary; the plaintiffs must

prove the essential allegations of their complaint by a

preponderance of the evidence. It is the burden of the

plaintiffs to adduce evidence, not merely to make allegations or

to rest on assumptions, establishing that the [agency] was

arbitrary and capricious in reaching the conclusion it did.”

Coliseum Square Ass’n v . Jackson, 465 F.3d 215, 231-32 (5th Cir.

2006) (citations and internal punctuation omitted). See also

Advocates for Transportation Alternatives, Inc. v . U.S. Army

Corps of Engineers, 453 F. Supp. 2d 289, 299 (D. Mass. 2006)

(“Review of an agency’s determination to adopt a FONSI instead of

preparing an EIS is governed by the arbitrary and capricious

standard. This standard requires the plaintiff to show a

substantial possibility that agency action could significantly

affect the quality of the human environment.”) (emphasis

supplied) (citations and internal punctuation omitted).

Plaintiffs have failed to carry that burden.

In concluding that the Than project would “not have a

significant effect on the quality of the human environment,” Than

48 Project Decision Notice at 2 0 , the Forest Service addressed both

the context and intensity of the effects of the proposed project,

as is required by the governing regulations. See 40 C.F.R. §

1508.27. With regard to the intensity of the project’s likely

effects, the Forest Service considered ten separate factors, see

id. at § 1508.27(b), and, as to the project’s effect on the

“unique characteristics of the geographic area,” the Forest

Service concluded:

There will be no significant effect to unique characteristics of the area, or to prime farmland, or heritage resources within the project area. There are no ecologically critical areas, such as wetlands, wild scenic rivers, adjacent parklands, or Wilderness within the project area. Based on the EA (“Wilderness and Roadless” chapter 1 ) , I have determined there will be no significant effects to the roadless or wilderness character of an Inventoried Roadless Area, nor will any of the proposed activities affect the availability of the Wild River Inventoried Roadless Area for inclusion in future roadless inventories.

The effects analysis contained in the EA clearly demonstrates that changes in forest cover will be detectable only within the project area boundary or from a limited number of vantage points in the immediate surrounding area ( p . 3-15 to 3-17). Furthermore, these changes will be of a temporary nature, and not on a scale that forecloses the area from roadless or wilderness consideration now or in the future. There will be minimal permanent change to the landscape from new road construction (200 feet) or trail construction (1250 feet relocation). All proposed activities are well within allowable limits for Eastern Wilderness. Less than one percent of the Wild River IRA will be harvested in this entry as a result of Than. Even when this project is combined with all the past, present, and reasonably foreseeable

49 harvest in the area, it comes to less than 3% of the total Wild River IRA - nowhere near the 20% allowed. All of the planned activities combined do not directly, indirectly or cumulatively add up to a significant effect to the Wild River IRA. The effects of this project are even less significant when considered at the Forest level where, after decades of active management, we still record “27 Roadless Areas totaling over 403,000 acres Forestwide” (EA page 3-88). Clearly, active management on the Forest has not adversely affected its generally primitive “roadless” character. The Than project is a relatively minor local entry into an inventoried roadless area, and not significant enough to require an EIS or set a National precedent.

Than Project Decision Notice, “Finding of No Significant Impact,”

Than Vol. 3 , Tab 5 , pages 21-22 (emphasis supplied). The Forest

Service made similar findings with respect to the effects of the

Batchelder Brook project. See Batchelder Brook Project Decision

Notice, B.B. Vol. 3 , Tab 2 , pages 7-8 and 20-23.

Plaintiffs assert two arguments in support of their view

that the Forest Service should have prepared a site-specific

environmental impact statement for each project. First, they

voice the reasonable and logical view that, prior to engaging in

any type of forest management activities in roadless (and

potential wilderness) areas, the Forest Service should give

careful consideration to the possible effects of such activities.

Plaintiffs’ Reply Memorandum at 2 8 . In fact, that view is also

embraced by governing federal laws and their implementing

50 regulations. Plainly, however, more than simply echoing

applicable statutory and regulatory requirements is necessary to

demonstrate that the Forest Service’s conclusions, based upon the

EA’s (which incorporated the recent Forest E I S ) , were arbitrary

and capricious. See generally Coliseum Square, 465 F.3d at 231-

32.

Next, plaintiffs suggest that every incursion into a

roadless area that involves timber management activities

necessarily affects the human environment in a significant way

because the decision to engage in such activity is “irreversible

and irretrievable.” Plaintiffs’ Reply Memorandum at 29-30

(quoting Block, 690 F.2d at 7 6 3 ) . Consequently, say plaintiffs,

whenever site-level projects involve intrusion into a roadless

area, the Forest Service is compelled to prepare an EIS. See

Id.; see also Plaintiffs’ Memorandum at 22-23. But, as the Court

of Appeals for the Ninth Circuit has held on at least two

occasions (once expressly, and once implicitly), an EIS is not

automatically required every time the Forest Service proposes

timber management activities in a roadless area.

The parties have expended considerable effort arguing about whether the agency must prepare a site-specific EIS. In National Audubon [Soc’y v . U.S. Forest Service, 4 F.3d 832 (9th Cir. 1993], we remanded for consideration of whether the agency’s decision not to

51 prepare an EIS in connection with a timber sale on inventoried land was arbitrary and capricious. National Audubon, 4 F.3d at 837-41. Implicit in that remand was our conclusion that an EIS may not be per se required under such circumstances. We leave to the agency the decision of how best to comply with NEPA and its implementing regulations, and hold only that the NEPA documents before us are insufficient.

Smith v . U.S. Forest Service, 33 F.3d 1072, 1079 (9th Cir. 1994).

In light of the foregoing, the court concludes that the

Sierra Club has not met its burden of demonstrating that the

Forest Service acted arbitrarily and capriciously or abused its

discretion when it concluded that neither the Than nor Batchelder

Brook project would have a significant effect on the quality of

the human environment. Accordingly, plaintiffs have not shown

that the Forest Service acted arbitrarily or capriciously when it

determined that neither project required the preparation of an

environmental impact statement.

VI. Finding of No Significant Impact.

Finally, plaintiffs assert that the Forest Service violated

the provisions of NEPA by failing to make either of the FONSIs

available for public comment for 30 days prior to issuing the

decision notices. Generally speaking, a federal agency is not

required to circulate a draft FONSI for public comment prior to

52 issuing a Notice of Decision. See, e.g., Alliance to Protect

Nantucket Sound, Inc. v . U.S. Army Corps of Engineers, 398 F.3d

105, 115 (1st Cir. 2005). There are, however, exceptions to that

general principle. Here, plaintiffs invoke the exception

established in 40 C.F.R. § 1501.4(e)(2)(i), which provides that

an agency shall make the FONSI available to the public when the

“proposed action i s , or is closely similar t o , one which normally

requires the preparation of an environmental impact statement.”

And, say plaintiffs, because “decisions to log in an IRA normally

require preparation of an EIS,” Plaintiffs’ Memorandum at 2 4 , the

Forest Service should have made the Than and Batchelder Brook

FONSIs available for public comment.

In support of their assertion that the projects at issue in

this case are “closely similar” to projects typically requiring

the preparation of an EIS, plaintiffs point to the Forest Service

Handbook, FSH 1909.15, Chapter 20.6 (“Environmental Impact

Statements and Related Documents”), which provides:

Classes of actions that require preparation of environmental impact statements are listed below.

The requirements for classes 2 , 3 , and 4 may be met by the appropriate use of program environmental impact statements and tiered site-specific environmental documents or by the preparation of site-specific environmental impact statements.

53 * * *

Class 3 : Proposals that would substantially alter the undeveloped character of an inventoried roadless area of 5,000 acres or more (FSH 1909.12).

FSH 1909.15, Ch. 20.6 (emphasis supplied). As the highlighted

language makes clear, even projects that are far larger than the

Than and Batchelder Brook projects and that would “substantially

alter” the undeveloped character of an inventoried roadless area

do not necessarily require the preparation of an EIS. Instead,

even with projects of significantly greater size and

environmental impact, the Forest Service can meet its statutory

and regulatory obligations by preparing site-level environmental

assessments that are tiered to the forest-level EIS. See, e.g.,

Smith, 33 F.3d at 1079. That is precisely what was done in this

case. And, based upon that analysis, the Forest Service

plausibly concluded that neither project would substantially

impact the human environment.

Based upon the record before i t , the court necessarily

concludes that plaintiffs have not demonstrated that either the

Than or Batchelder Brook project is “closely similar” to projects

that would “substantially alter the undeveloped character of an

inventoried roadless area of 5,000 acres or more.” The Than

project involves vegetation management on a total of 929 acres,

54 424 acres of which fall within much larger areas inventoried for

roadless characteristics. Than Project Decision Notice at 1 2 .

See also Than EA, Than Vol. 3 , Tab 6, page 3-114. The Batchelder

Brook project is even smaller and calls for vegetation management

on a total of 380 acres, of which 139 acres fall within the much

larger South Carr Mountain IRA. Batchelder Brook EA, B.B. Vol.

3 , Tab 1 , page 3-98. Nothing about either of those relatively

small projects suggests that it will “substantially alter the

undeveloped character” of the affected IRA. See, e.g., Than

Project Decision Notice at 12 (“Proposed actions included in [the

Than project] will not significantly alter the character of the

area or the qualities which qualified it for inclusion in the

[roadless] inventory. . . . [T]hese qualities would not be

affected because the harvests are of limited intensity and

minimal road systems will be used.”).

Plaintiffs have not shown that the exception to the general

rule that such publication is unnecessary, codified at 40 C.F.R.

1501.4(e)(2)(i), applies in this case. Consequently, the court

finds that the Forest Service was not obligated to publish the

Batchelder Brook and/or Than project FONSI for at least 30 days

prior to issuing the Notices of Decision.

55 Conclusion

As noted earlier, the court is not asked to review the

wisdom or advisability of either the Than or Batchelder Brook

Vegetation Management Projects, nor is it asked to determine

whether there are other, perhaps less intrusive, means by which

to achieve the goals embodied in the Forest Plan and/or the

proposed projects. The narrow question before this court is a

legal one: whether the Forest Service complied with its statutory

and regulatory obligations when it decided to implement those two

site-level forest management projects. And, the standard by

which the court must measure the Forest Service’s challenged

conduct is decidedly deferential. This court does not substitute

its judgment on the merits of the projects for that of the Forest

Service. Instead, its review is limited to determining “whether

the [Forest Service] has considered the relevant factors and

articulated a rational connection between the facts found and the

choice made.” Dubois, 102 F.3d at 1284 (quoting Baltimore Gas &

Elec., 462 U.S. at 1 0 5 ) . It has.

For the reasons set forth above, as well as those discussed

in defendants’ legal memoranda and the memoranda submitted by the

amici, the court concludes that plaintiffs have not shown that

the Forest Service violated NEPA, NFMA, or the APA in approving

56 the Than and Batchelder Brook site-level projects. Plaintiffs’

motion for summary judgment (document n o . 28) is denied and

defendants’ motion for summary judgment (document n o . 46) is

granted. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Stfeven J./McAuliffe hief Judge

June 6, 2008

cc: John T . Alexander, Esq. Anthony I . Blenkinsop, Esq. John S . Harbison, Esq. Kristin A . Henry, Esq. Cynthia S . Huber, Esq. Eric E . Huber, Esq. Bradford W . Kuster, Esq. Jared M . Margolis, Esq.