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Allegheny Defense Project, Inc. v. United States Forest Service

September 15, 2005

THE ALLEGHENY DEFENSE PROJECT, INC.; HEARTWOOD, INC.; THE PENNSYLVANIA ENVIRONMENTAL NETWORK; THE NATIONAL FOREST PROTECTION ALLIANCE; COMMUNITIES FOR SUSTAINABLE FORESTRY; JIM KLEISSLER; NEWKIRK JOHNSON; RACHEL MARTIN; SUSAN CURRY; RYAN TALBOTT; BILL BELITSKUS; ARTHUR CLARK; ALEXANDER DENMARSH; JOHN A. KESLICK, JR.; SIERRA CLUB
v.
THE UNITED STATES FOREST SERVICE; ROBERT T. JACOBS, IN HIS OFFICIAL CAPACITY AS THE REGIONAL FORESTER FOR THE EASTERN REGION; KEVIN ELLIOT, IN HIS OFFICIAL CAPACITY AS SUPERVISOR OF THE ALLEGHENY NATIONAL FOREST; ALLEGHENY FOREST ALLIANCE; RUFFED GROUSE SOCIETY; AMERICAN FOREST AND PAPER ASSOCIATION INTERVENOR-DEFENDANTS IN D.C. ALLEGHENY DEFENSE PROJECT, INC., HEARTWOOD, INC., NATIONAL FOREST PROTECTION ALLIANCE, PENNSYLVANIA ENVIRONMENTAL NETWORK, COMMUNITIES FOR SUSTAINABLE FORESTRY, THE SIERRA CLUB, JIM KLEISSLER, RACHEL MARTIN, SUSAN CURRY, RYAN TALBOTT, BILL BELITSKUS, ARTHUR CLARK, ALEXANDER DENMARSH, JOHN A. KESLICK, JR., APPELLANTS



On Appeal from the United States District Court for the Western District of Pennsylvania (Civil Action No. 01-cv-00895) District Judge: Hon. William L. Standish.

The opinion of the court was delivered by: McKee, Circuit Judge

PRECEDENTIAL

Argued: May 3, 2005

Before: McKee, VanAntwerpen, Weis, Circuit Judges,

OPINION

Appellants (collectively referred to as "ADP"), appeal the District Court's grant of summary judgment to defendant, the United States Forest Service, on Counts I and III of their complaint. ADP filed suit under the Administrative Procedure Act ("APA"), and the National Forest Management Act ("NFMA"), to challenge the Forest Services's decision to undertake a site-specific project (the "East Side Project")*fn1 in the Allegheny National Forest (the "ANF").*fn2 ADP claimed that the Forest Service improperly selected a harvesting system primarily based upon dollar return, and sought a declaratory judgment that selection of the harvesting system on that basis violated the APA and NFMA. ADP also sought to enjoin the Forest Service from implementing the logging plan on that basis. For the reasons that follow, we will affirm the District Court's grant of summary judgment.

I. BACKGROUND.

A. History of the ANF*fn3

The ANF occupies more than 500,000 acres in Elk, Forest, McKean and Warren Counties in Northwestern Pennsylvania. Originally, Pennsylvania's forests included stands of very large, mature or overmature trees of differing ages and species. The forests were in varying stages of recovery from natural catastrophes such as fires and windthrow.*fn4 David A. Marquis, The Allegheny Hardwood Forests of Pennsylvania, (1975) ("Marquis manuscript") (manuscript available at A.R., Book 27, Tab 7). Originally, hemlock and beech, which are very shade-tolerant trees, were the most common species. Together, they represented fifty-eight .percent of the forest. Maple, birch, white pine, and chestnut represented an additional thirty percent. Id. at 8. Black cherry, the tree at issue here, composed only 0.8% of the forest from the years 1793 to 1819. However, by 1973, 22.6% of the ANF was black cherry, A.R., Book 33, Tab 6 at 445, and today black cherry amounts to 28% of the overstory forest and 47% of the understory forest,*fn5 A.R., Book 31, Tab 2, Appendix L at 7.

When the forest was primarily inhabited by Native Americans, wildlife was abundant. It included deer, elk, bear, wolves, cougars, wildcats, and lynx. White-tailed deer were also common, though not abundant. The white-tailed deer population was kept down by natural predators and by the limited availability of food. Their numbers were also checked because white-tailed dear were an important source of meat and clothing for the Native Americans.Marquis Manuscript at 9.

The first "settlers" arrived around 1796-97, and timber harvesting became important by 1837. There were, by then, an estimated 100 sawmills in Warren County, producing forty-five million board feet of timber annually. Industry was developing in the area by 1860, and the first oil well was drilled in 1859. There were also steam railroads, steam-powered sawmills and steam log loaders. By 1869, there were three railroads. Marquis states that, "[b]etween 1890and 1920, the virgin and partially cut forests were almost completely clearcut in what must have been the highest degree of forest utilization that the world has ever seen in any commercial lumbering area." Id. at 15. However, the deer population was still under control because of extensive hunting. Forest fires were common from 1890 to 1930in areas that had originally contained conifers. Heavy cutting and frequent fires resulted in a reduction of conifers and an increase in hardwoods. Marquis concluded that fires were probably a major factor in the virtual elimination of white pine and hemlock in the Allegheny forests. "In some places, fires burned intensely enough to remove all humus, exposing the clay soil and creating some of the numerous open areas that are still present on the Plateau." Id. at 29. As the number of conifers and white pine in the Allegheny Forest was reduced, they were replaced by stands dominated by hardwoods such as black cherry, red maple, sugar maple and white ash; species that are excellent as timber. According to Marquis, heavy cutting favors hardwoods because small hardwood seedlings have a head start on new pine seedlings and can outgrow conifers such as hemlock seedlings. Id. at 28. In addition, heavy cutting provides ideal conditions for forest fires, and fires are more damaging to coniferous seedlings than to hardwood seedlings because of the hardwoods' ability to resprout. Species such as black cherry also thrived during the period of 1890 to 1930 due to the absence of shade. In the vast open areas created by clearcutting,*fn6 black cherry, a shade-intolerant tree, regenerates much more successfully than species such as beech.

The increase in cherry from turn-of-the century logging and the resulting increase in the percentage of cherry in the forests had a cost. The environmental impact included serious flooding, erosion and other harm to the area's watersheds. It also harmed wildlife species, some of which are only now being reintroduced to the area. Furthermore, the popularity of venison in hotels, lumber camps and city markets reduced the deer population to such scarcity that measures had to be taken to increase their numbers. These measures included appointment of a game commission in 1896. At about the same time that affirmative steps were being taken to protect deer, extensive timber harvesting was resulting in increased accumulation of "browse" for the deer to feed on. With predators eliminated, browse accumulating in clearcut areas, and does being protected from hunting, conditions were ripe for the deer population to explode.

In his 1975 article, Marquis reported that after the original forest had been cleared, the wood-using industries of the Allegheny Plateau suffered a significant decline. Id. at 32. Those industries did not begin to rebound until around 1960. By 1975, the second-growth forests that sprouted after the clearcuttings of 1890-1920 were fifty to eighty years old. Trees in the older stands were therefore large enough to be valuable for timber. According to Marquis, much of the forest land was then under some sort of sustained-yield management. This had been insured by setting large acreages aside in the national and state forests where cutting was carefully regulated and integrated with other uses. Marquis believed that timber cutting would never return to the "cut-and-get-out" type of operation that saw the entire region cut over a thirty to forty year period. Id. at 33. However, he recognized there were still problems. For example, it was very difficult to obtain prompt regeneration after the mature trees had been removed. This was partly because of the large deer population.*fn7 Marquis observed that "[m]uch research is under way to find ways of increasing advance regeneration, of protecting seedlings from deer, and of establishing new stands through seeding or planting so that our Allegheny hardwood forests will continue to provide all of the many goods and services we have come to expect from them." Id.

Deer were not the only obstacle to successful regeneration. The ANF was also affected by a series of droughts from 1991 through 1996, as well as epidemic populations of parasites. The latter included elm spanworm, forest tent caterpillar and sherry scallop shell moth. A.R., Book 12, Tab 4, Sub-Tab 17 at 283. This resulted in a series of defoliations across a wide swath of northern Pennsylvania, including the ANF. As a result, a substantial portion of the ANF at issue here was repeatedly defoliated. The stress of these repeated defoliations weakened trees and made them more susceptible to attack by secondary pathogens that actually kill trees. As a result, by 1994, the ANF contained a sizable "zone of mortality" -- areas of dead and declining trees.

The species most affected by these events were sugar and red maples, American beech, birch and white ash. A.R., Book 42 at 1. Although black cherry suffered defoliation along with the other species, nutrient-demanding species like sugar maple and white ash suffered greater levels of mortality. Those species are more vulnerable to drought and defoliation stress on sites with low nutrient capital like the unglacieated plateau sites and upper slopes in the areas involved. Id. at 133-35, 137.

According to ADP, absent certain measures such as more clearcutting or other even-aged management*fn8 followed by fertilization and the construction of hundreds of miles of fencing, extensive herbicide use, and thinning to eliminate hardier species of trees, most of the forested areas of northwestern Pennsylvania would eventually revert to the native shade-tolerant beech-hemlock forest.

B. Statutory and Regulatory Framework

In the Organic Administration Act of 1897, 16 U.S.C. § 475, Congress identified the purposes for which national forests may be established and administered. Those purposes include improving and protecting the forest, obtaining favorable conditions for water flows, and furnishing a continuous supply of lumber for the citizens of the United States." Id. More than sixty years after Congress enacted the Organic Administration Act, Congress enacted the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"), 16 U.S.C. § 528. That Act provides, in relevant part:

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes . . .

Id.*fn9

In 1969, Congress enacted the National Environmental Policy Act, ("NEPA"), 42 U.S.C. § 4331, et seq. NEPA requires all federal agencies to prepare an environmental impact statement ("EIS") for every recommendation, report or proposal, legislation, or other actions that significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C). Thereafter, in 1976, Congress enacted the NFMA, 16 U.S.C. § 1604, et. seq., requiring the Secretary of Agriculture to promulgate regulations for the development and revision of land management plans, guidelines and standards prescribed pursuant to the NFMA.

The NFMA further requires that the regulations issued by the Secretary of Agriculture include:

(3) . . . guidelines for land management plans developed to achieve the goals of the Program which-

(A) insure consideration of the economic and environmental aspects of various systems of renewable resource management including the related systems of silviculture*fn10 and protection of forest resources, to provide for outdoor recreation (including wilderness), range, timber, watershed, wildlife, and fish; . . .

(D) permit increases in harvest levels based on intensified management practices, such as reforestation, thinning, and tree improvement . . .

(E) insure that timber will be harvested from National Forest System lands only where -

(iv) the harvesting system to be used is not se le c te d primarily because it will give the greatest dollar return or the greatest unit output of timber;*fn11 and

(F) insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an even-aged stand of timber will be used as a cutting method on National Forest System lands only where-

(I) for clearcutting, it is determined to be the optimum method, and for other such cuts, it is determined to be appropriate, to meet the objectives and requirements of the relevant land management plan.

16 U.S.C. § 1604(g).

The Forest Service's regulations implementing these provisions of the NFMA are codified at 36 C.F.R. Part 219. The first "planning rule" was adopted in 1979, substantially amended in 1982, and partially amended again in June and September of 1983. The 1982 rule, as amended, guided the development, amendment, and revision of the forest plans now in place for the ANF as well as all other national forests and grasslands in the United States.

The following provision is particularly relevant to our inquiry:

Management prescriptions that involve vegetative manipulation of tree cover ...


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