Filed: Sep. 15, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 9-15-2005 Alghny Def Project v. US Forest Ser Precedential or Non-Precedential: Precedential Docket No. 04-2442 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Alghny Def Project v. US Forest Ser" (2005). 2005 Decisions. Paper 474. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/474 This decision is brought to you for free and open acc
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 9-15-2005 Alghny Def Project v. US Forest Ser Precedential or Non-Precedential: Precedential Docket No. 04-2442 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Alghny Def Project v. US Forest Ser" (2005). 2005 Decisions. Paper 474. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/474 This decision is brought to you for free and open acce..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-15-2005
Alghny Def Project v. US Forest Ser
Precedential or Non-Precedential: Precedential
Docket No. 04-2442
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Alghny Def Project v. US Forest Ser" (2005). 2005 Decisions. Paper 474.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/474
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2442
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
Argued: May 3, 2005
Before: McKee, VanAntwerpen, Weis, Circuit Judges,
(Opinion Filed: September 15, 2005)
THOMAS C. BUCHELE, Esq. (Argued)
P.O. Box 7226
Pittsburgh, PA 15213-0221
Attorney for Appellants
2
THOMAS L. SANSONETTI, Esq.
Assistant Attorney General
ELLEN J. DURKEE, Esq.
MARK R. HAAG, Esq. (Argued)
Attorneys, Department of Justice
Environment & Natural Resources Division
P.O. Box 23795, L’Enfant Station
Washington, D.C. 22026
RONALD MULACH, Esq. (Of Counsel)
Office of the General Counsel
United States Department of Agriculture
Milwaukee, WI 53202
Attorneys for Appellees United States Forest Service,
Robert T. Jacobs and Kevin Elliot
STEVEN P. QUARLES, Esq.
J. MICHAEL KLISE, Esq. (Argued)
THOMAS R. LUNDQUIST, Esq.
Crowell & Moring LLP
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004-2595
Attorneys for Appellees Allegheny Forest Service,
Ruffed Grouse Society and American Forest and Paper
Association
3
OPINION
McKee, Circuit Judge
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”)1 in the
Allegheny National Forest (the “ANF”).2 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
1
The East Side Project is an effort by the United States Forest
Service to address, inter alia, tree mortality and decline in Elk,
Forest, McKean and Warren counties on the Marienville and
Bradford Ranger Districts of the Allegheny National Forest.
The Project includes management activities on over 8,000 acres
of the eastern portion of the Forest.
2
The one-half million acre ANF was established in
September 1923. It is the only National Forest in Pennsylvania.
4
that follow, we will affirm the District Court’s grant of summary
judgment.
I. BACKGROUND.
A. History of the ANF 3
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.4 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
3
Because these facts are not in dispute, much of this section
has been excerpted from the Magistrate Judge’s Report &
Recommendation.
4
“Windthrow” occurs when trees are uprooted by excessive
w i n d s . S e e
https://www.uwsp.edu/natres/nres743/Definitions/Windthrow.
htm (last visited Sept. 1, 2005).
5
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,5 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
5
“Overstory” is the term used for the layer of foliage in a
forest canopy including the trees in a timber stand. In the
overstory, tall mature trees rise above the shorter immature
understory trees. See A bout, Forestry, at
http://forestry.about.com/library/glossary/blforgln.htm (last
visited Aug. 24, 2005).
“Understory” is the term used for the area of a forest that
grows in the shade of the overstory or canopy. Plants in the
understory consist of a mixture of seedlings and saplings of
canopy trees together with understory shrubs and herbs. See
Wikipedia, the Free Encyclopedia, Understory, at
http://en.wikipedia.org/wiki/Understory (last visited Aug. 24,
2005).
6
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 1890 and 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
1930 in 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
7
clearcutting,6 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
6
Clearcutting is a forest management technique that involves
harvesting all of the trees in one area at a time. Neil Stoloff,
Environmental Law Dictionary (1993).
8
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.7 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
7
Deer can prevent successful regeneration because they feed
on woody twigs thereby destroying new seedlings. Marquis
Manuscript at 31-32.
9
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 management8 followed by
fertilization and the construction of hundreds of miles of
8
“Even-aged management” refers to a logging method that is
characterized by clearcut, shelterwood, or seed tree cutting,
resulting in all or a large percentage of trees in an area being cut
down at one time, so that when the forest regenerates all the
trees that grow will be the same age. A.R., Book 34 at 4-25.
“Uneven-aged management” is a logging method that
involves selecting trees to cut either one by one or by groups,
resulting in a continuous level of high-forest cover, recurring
regeneration of trees, and the orderly development of trees
through a range of age classes. A.R., Book 34 at 4-26.
10
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. 9
In 1969, Congress enacted the National Environmental
9
Under both the Organic Administration Act and the
MUSYA, timber production plays a legitimate role in
maintaining and administering national forests.
11
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 10 and protection of
10
According to a web site copyrighted by the University of
Missouri, School of Natural Resources, “Silviculture is the
science, art and practice of caring for forests with respect to
human objectives.” See Silviculture,
http://www.snr.missouri.edu/silviculture (last updated March 9,
2002) (the web site also provides an overview of the science of
forestry, forestry terminology, and links to additional resources
12
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 selected
primarily because it
will give the greatest
dollar return or the
greatest unit output
of timber;11 and
for understanding forest maintenance).
11
ADP has not pursued a claim that the system at issue here
was selected in violation of § 1604's prohibition against
selecting a system based on the “greatest unit output of timber.”
Consequently, we are only concerned with ADP’s claim that the
Forest Service’s chosen harvesting system violates § 1604's
prohibition against selecting a system based on “greatest dollar
return.”
13
(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 for any purpose shall
–
(1) Be best suited to the multiple-
14
use goals established for the area
with potential environmental,
biological, cultural resources,
a e st h e t ic , e n g in e e rin g , a n d
economic impacts, as stated in the
regional guides and forest plans,
being considered in this
determination;
(2) Assure that lands can be adequately
restocked . . .
(3) Not be chosen primarily
because they will give the greatest
dollar return or the greatest output
of timber, although these factors
shall be considered;
...
(6) Provide the desired effects on water
quantity and quality, wildlife and fish
habitat, regeneration of desired tree
species, forage production, recreation uses,
aesthetic values, and other resource yields.
36 C.F.R. 219.27(b).
This 1982 rule was superceded in November, 2000, when
the Secretary of Agriculture substantially revised certain
provisions of Part 219. The new rule included a transitional
15
provision. The transitional provision delayed the application of
the new rule to site-specific decisions (such as the East Side
Project) until after November 8, 2003. 36 C.F.R. 219.35(d)
(2001) (“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.”).
The Department then proposed revising the 2000 rule and
extending the transition period, and it published an interpretative
rule clarifying the intent of the transition provision. On January
5, 2005, the Department of Agriculture rescinded the 2000
regulations and replaced them in their entirety with a new final
rule entitled “National Forest System Land Management
Planning.” 70 Fed. Reg. 1022, 1023 (Jan. 5, 2005), to be
codified at 36 C.F.R. Part 219. The 2005 regulations do not
contain the language found in the 1982 regulations prohibiting
forest management that maximizes the dollar return or the
output of timber.
On March 23, 2005, however, the Forest Service issued
several interim directives that were effective immediately. One
of those directives states, in relevant part:
Vegetation Management Requirements
The minimum specific management requirements
to be met in carrying out
site-specific projects and activities in the National
Forest System (NFS) are set forth in this section
. . . a responsible official may authorize site-
specific projects . . . to harvest timber only where:
...
4. The harvesting system to be used is not
16
selected primarily because it will give the
greatest dollar return.
70 Fed. Reg. 14637, Section 1921.17a (Mar. 23, 2005).12
12
The Forest Service maintains that the 2005 Regulations
confirm that the 1982 forest planning rule is no longer binding
on the Forest Service in the context of site-specific decisions
such as the East Side Project. In contrast, ADP contends that
nothing in the actual 2005 Regulations expressly states that the
1982 regulations have been entirely repealed or that site-specific
decisions made before the 2005 Regulations were issued are
now, retroactively, controlled by these new regulations.
Furthermore, ADP maintains that, even if the 2005 Regulations
apply here, the interim directive issued on March 23 rd , 2005,
which imposes the same mandatory requirement as the 1982
Regulations and the statute itself, is binding on the Forest
Service.
At oral argument, the Forest Service conceded that the
question of whether the East Side Project is controlled by the
1982 Rule, the 2005 Rule or § 1604, is inconsequential since the
Interim Directive tracks the language of the 1982 Rule and the
statute itself. Therefore, the Forest Service admitted, the
requirement that the harvesting system not be selected primarily
because it will give the greatest dollar return is the same.
Because the Forest Service admits as much, we need not decide
which Regulations in fact control here, and we will proceed
under the premise that the East Side Project must be consistent
with this requirement.
17
Under NEPA and NFMA, forest planning and
management occurs at the programmatic level and at the project
level. At the programmatic level, the Forest Service develops a
forest plan for each National Forest. The plan is designed to
“provide for multiple use and sustained yield of the products and
services obtained [from the forest] in accordance with
[MUSYA] . . . and, in particular, include coordination of
outdoor recreation, range, timber, watershed, wildlife and fish
and wilderness.” 16 U.S.C. § 1604(e)(1). Each forest plan
contains (1) a summarized analysis of the management situation;
(2) a description of the forest multiple-use goals and objectives,
including a description of the desired future condition of the
forest and an identification of goods and services that are
expected to be produced; (3) multiple-use prescriptions; (4)
standards and guidelines; and (5) monitoring and evaluation
requirements. The forest plan divides the forest into different
management areas (“MA”) – units of land in which the
provision of a particular management goal is emphasized – and
sets out for each MA an emphasis statement, goals, desired
future condition, description, and standards and guidelines. The
development of the forest plan is accompanied by a public
review process conducted in accordance with NFMA and
NEPA. See 16 U.S.C. §§ 1604(d) and (g)(1).
The second level involves project activities. At this stage
the Forest Service proposes, analyzes and decides upon site-
specific actions that must be consistent with the forest plan.
They must also be consistent with the limitations imposed under
NEPA. Therefore, the Forest Service must produce either an EIS
18
and record of decision (“ROD”)13 or an environmental
assessment (“EA”) and a finding of no significant impact
(“FONSI”).14 Each proposed site-specific project may proceed
only if it is consistent with the forest plan, has been analyzed
under NEPA, and has been specifically approved by the
appropriate Forest Service official. 16 U.S.C. § 1604(I).
Pursuant to the requirements of the NFMA, the Forest
Service adopted the Allegheny National Forest Land and
Resource Management Plan in 1986. The Plan recognized that:
Forest Plans must assure that they provide for
multiple-use and a sustained yield of products and
services. In addition, Forest Plans must provide
this multiple-use and sustained yield of goods and
13
A Record of Decision is a “document signed by a
Responsible Official recording a decision that was preceded by
preparation of an environmental impact statement.” 36 C.F.R.
218.2.
14
NEPA requires that federal agencies prepare an EIS for
“major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C). An agency may
first prepare an EA which is less involved and less expensive
than an EIS. The agency may then utilize the EA to determine
if circumstances require the additional effort of preparing the
more involved and more expensive EIS in order to ascertain the
potential impacts of the federal action that is contemplated. 40
C.F.R. § 1501.4, 1508.9. If an EA shows that the proposed
action will not have a significant effect, the agency may issue a
FONSI and proceed without preparing an EIS. Id.
19
services from the Allegheny National Forest in a
way that maximizes long-term net public benefits
in an environmentally sound manner.
The Plan divided the national forest into 11 MAs, determined
the desired future condition and featured logging method for
each MA, and set both forest-wide and management area
specific standards and guidelines.
C. The Curry Litigation
In 1995, the Forest Service undertook a series of studies
to assess tree mortality in the ANF in an effort to identify
treatments that could promote a healthy forest ecosystem. After
completing an EA and issuing a FONSI pursuant to NEPA, the
Forest Service approved a project known as “Mortality I.” That
project identified ecosystem management actions for treating
portions of the ANF that had suffered the most severe mortality
and decline. When Mortality I was completed, the Forest
Service undertook an additional project, “Mortality II,” to
continue the efforts begun under Mortality I. Mortality II
addressed "ecosystem sustainability, harvesting, and
reforestation concerns on additional areas within the zone of
mortality." A.R., Book 42 at 2. It also proposed selling timber
from within the ANF. More specifically, it authorized 4,800
acres of even-aged logging and 2,750 acres of post-logging
herbicide applications in MA 3.0.
Many of the same individuals who are appellants in this
appeal initiated an action in the United States District Court for
the Western District of Pennsylvania to challenge Mortality II.
20
They claimed that proposed sales of timber violated the NFMA,
the Migratory Bird Treaty Act, and the NEPA. See Curry v.
United States Forest Service, 988 F. Supp. 541 (W.D. Pa. 1997).
Plaintiffs alleged that the even-aged management techniques
that were to be used under the Mortality II project could have
significant adverse environmental effects on wildlife and old
growth forests. They claimed the Project’s effects could
irreparably destroy the recreational, research and aesthetic
values of the affected areas.
Id. at 546.
The District Court concluded that the magnitude of the
Mortality II project and its selection of even-aged management
as the predominant management technique undermined the
defendants’ claim that the project would not have a significant
impact on the human environment.
Id. at 551. The court
identified several factors indicative of the severity of Mortality
II’s impact, and concluded that the Forest Service had not done
an analysis of the combined effects of Mortality I and Mortality
II.
Id. at 552. The District Court agreed that the Forest
Service’s failure to prepare an EIS for Mortality II violated
NEPA, and the Services’s decision to approve the project
without an EIS was “arbitrary and capricious.” Id.15
Accordingly, on October 15, 1997, the District Court
15
The Forest Service had only considered two alternatives
for Mortality II – a no action alternative and the proposed action
involving the overwhelming use of even-aged management
techniques. The court concluded that the Forest Service’s action
of only considering these two alternatives was “arbitrary and
capricious.” Id. at 553.
21
issued an order granting the Curry plaintiffs' motion for
summary judgment on their NFMA and the NEPA claims, and
enjoining the Forest Service from implementing the Mortality II
Project until it prepared an EIS and considered a broad range of
alternative techniques for managing the ANF. The District
Court also directed the Forest Service to reconsider its
determination that the “even-aged management” techniques
proposed by the Mortality II project for MA 3 met the
`optimality' and 'appropriateness' requirements set forth in 16
U.S.C. § 1604(g)(3)(F). Id. at 556.
D. The East Side Project
The Forest Service produced an EIS for the East Side
Project pursuant to the District Court’s order in Curry. The East
Side Project combined the Mortality II proposal with several
other smaller logging proposals and included activities in three
of the ANF’s management areas: MA 3, MA 2, and MA 6.1.
The Project was intended to implement the Forest Plan by
restoring the forested ecosystem and moving the area towards
the desired future condition described in the Forest Plan. More
specifically, the Project was intended to: (1) initiate reforestation
treatments to restore the declining forest ecosystem; (2) establish
tree seedlings to restore tree regeneration or replacement and to
improve the horizontal and vertical diversity in the ecosystem;
(3) enhance the vigor of forested stands by regulating stocking
and species composition; (4) promote sustainable delivery of
forest products in MA 3; (5) supply forest products to meet
public demand and to contribute to the economic vitality of local
communities; (6) improve road access and safety and maintain
water quality by improving and maintaining needed roads and
eliminating unnecessary roads; and (7) restore wildlife habitat.
22
ROD, App. at 34A-35A.
Most of the activities comprising the East Side Project,
including even-aged logging and clearcutting, were to occur in
MA 3 which, at 327,000 acres, is the largest management area
in the ANF. According to the Forest Plan, the primary purposes
of MA 3 include providing “a sustained yield of high-quality
Allegheny hardwood and oak sawtimber through even-aged
management,” and providing “a variety of age or size class
habitat diversity from seedling to mature sawtimber in a variety
of timber types.” A.R., Book 35 at 4-82. Additional stated
primary purposes for MA 3 include providing a habitat for
wildlife that prefer the openings created by even-aged cutting
and creating and maintaining roads for recreation. Id. The
Project authorizes 125 miles of road construction and
reconstruction, 3,419 acres of post-logging herbicide
application, 1,293 acres of fertilizer application, and 2,282 acres
of fencing around the large openings created by the even-aged
logging.
Id.
The Project also includes treating vegetation in MA 2,
which comprises 6,000 acres of primarily uneven-aged Northern
hardwoods and hemlock. Under the Forest Plan this
management approach is primarily intended to:
-Provide a continuous forested scene through practicing
uneven-aged management which will promote [shade]
tolerant species and produce quality sawtimber.
-Feature wildlife species associated with shade tolerant
vegetation, primarily songbirds and cavity-nesting birds
and mammals.
23
-Provide the opportunity for a variety of developed and
dispersed motorized recreation opportunities in a Roaded
Natural setting.
Id. at 4-70.
The Project also includes reforestation treatments in the
101,000 acres comprising MA 6.1. The emphasis in this
management area is intended to maintain or enhance scenic
quality, provide for dispersed recreation, and provide habitat for
wildlife species that require mature and overmature hardwood
forests.
Id. at 4-110. The Forest Plan allows for the use of both
even-aged and uneven-aged management in MA 6.1.
Id. at 4-
116.
Pursuant to the ruling in Curry, and as the ROD for the
Project explains, before finalizing the details of the Project, the
Forest Service evaluated five alternatives in detail and additional
alternatives were eliminated from detailed study after being
evaluated. One of the alternatives considered in detail –
Alternative 4 – would have made extensive use of uneven-aged
m a n a g e m e n t . 1 6 I n
16
The ROD explains why Alternative 4 was not selected. The
ROD explains:
The debate over the kind of silvicultural system to
emphasize on the ANF did not originate with the
East Side Project. The analysis completed for the
Forest Plan included a detailed look at the trade-
offs between even-aged and uneven-aged
24
management, including the effects on dispersed
recreation, timber harvest volumes and values,
and effects on wildlife habitat. The selection of
Forest Plan FEIS Alternative D was based on the
programmatic decision to emphasize even-aged
management in MA 3.0 and uneven-aged
management in MA 2.0, and was made because it
provided the best mix of goods, services, and uses
to the public (maximizes net public benefit per 36
C.F.R. Part 219.1).
As part of the background work for this project, I
directed the Forest Silviculturist to examine new
research findings pertaining to uneven-aged
management, and to assess local application and
results of uneven-aged treatments. Ths review
did not cause me to question the Forest Plan
analysis, therefore I believe the conclusions
reached in the Forest Plan are still valid. Success
of this silvicultural practice on a large scale is
uncertain. There is a likelihood that desired
outcomes would not occur even after significant
expenditure of funds. Much reliance would have
to be placed on experimental or adaptive
management techniques. The following provides
additional rationale:
1. The limitations and uncertainty with
uneven-aged management in the predominant vegetation types
25
within East Side reduce the opportunity to address more fully
the purpose and need within the project area. Alternative 1
offers a broader range of activities to meet Forest Plan direction
as provided in MA 3.0.
2. The biology and site requirements of
existing shade-intolerant species in even-aged
stands do not lend themselves to the application
of uneven-aged techniques, increasing the cost of
implementation.
3. Several of the shade-tolerant tree species
are experiencing decline (maple) or disease
(beech). Creating larger acreages of these species
through uneven-aged management could result in
greater susceptibility of the forest to insect and
disease outbreaks. Alternative 1 (and 3) offers an
opportunity to maintain a more sustainable forest.
4. Alternative 4 has a cost/benefit ratio of
less than one for the major management activities,
making it a less desirable choice.
5. Alternative 4 is not as effective, nor is it
as reliable, in moving the East Side project area
towards the desired future condition as described
in the Forest Plan. Importantly, the analysis in the
FEIS does not describe attributes of this
alternative that lead me to the conclusion that the
26
addition, more limited use of uneven-aged management was
affected resources in the East Side project would
be better served by deviating from the current
Forest Plan direction for MAs 3.0 and 6.1.
The environmental conditions within the East
Side project area, and more specifically, the
particular vegetative conditions within the stands
proposed for treatment do not suggest that
deviating from programmatic Forest Plan
direction (to apply uneven-aged management
treatments broadly throughout MA 3.0) is
warranted.
Individual timber rattlesnakes and Northern water
shrews could be impacted by this alternative, but
these impacts would not cause a loss of viability
or a trend towards federal listing . . .
The vegetative conditions that result from
implementation of Alternative 4 do not contribute
towards achieving the desired future condition as
described in the Forest Plan, and due to the
uncertainty of implementing uneven-aged
management on such a large scale, do not
contribute towards objectives of the Natural
Resource agenda. Therefore, I did not select
Alternative 4.
App. at 47a-48a.
27
included in Alternative 1 and 3.
Ultimately, the Acting Forest Supervisor of the Forest
Service selected Alternative 1 as the option that would best
achieve the Project’s intended purposes. The Forest Supervisor
found Alternative 1 consistent with the Forest Service Natural
Resource Agenda with respect to watershed protection,
sustainable forests and roads. App. at 36A-37A. The
Supervisor also found Alternative 1 to be the best response to
the issues identified for the Project because it could best attain
the desired condition envisioned by the Forest Plan. App. at
37A.
The ROD described the proposed activities of Alternative
1, which included transportation activities, wildlife treatments
and timber outputs. App. at 39A-40A. The ROD also discussed
the environmental consequences of Alternative 1, including a
review of the impact on ecological land types, water,
transportation, oil, gas and mineral, vegetation, wildlife, heritage
resources, recreation, scenic resources, economics, and human
health and safety. App. at 44A-47A. The ROD also discussed
the reasons that Alternatives 2-5 were rejected, App. at 47A-
48A, and it evaluated the use of even-aged logging and
considered whether uneven-aged logging could be used. Id.
Ultimately, when considering whether Alternative 1 was
consistent with the Forest Plan and federal laws, the ROD
concluded that even-aged logging is “appropriate,” and
clearcutting “optimal,” in order to regenerate the species and
28
forest types found in the ANF.17 App. at 49A-50A. The ROD
concluded that even-aged logging would move the project area
toward the desired future condition set forth in the Land
Management Plan. The ROD states that this management is
necessary to restore and maintain a healthy, sustainable forest in
the Project area.
E. Procedural History
ADP filed an administrative appeal of the ROD on
February 5, 2001. The Regional Forester denied that appeal on
March 22, 2001. ADP then filed a ten-count complaint in the
District Court, raising multiple issues under NFMA and NEPA.
The District Court ultimately adopted the Magistrate
Judge’s second Report and Recommendation (“R&R”).
Allegheny Defense Project v. U.S. Forest Service, No. 01-895,
slip. Op. (W.D.Pa. Mar. 23, 2004). In the first R&R, the
Magistrate Judge recommended summary judgment in favor of
ADP on Counts I and III, the two counts at issue in this appeal.
App. 185A.
Count I alleged that, in the East Side Decision, the Forest
Service chose to manage the ANF as a black cherry tree farm in
violation of MUSYA, which requires that the national forests be
established and administered for “outdoor recreation, range,
timber, watershed, and wildlife and fish purposes,” 16 U.S.C. §
528, and NFMA, which requires that the regulations specify
17
As previously noted, 16 U.S.C. § 1604(g)(3)(F) requires
that clearcutting only be used where it is the “optimum” method,
and that shelterwood and seed tree cutting only be used where
“appropriate.”
29
guidelines for land management plans which “insure that timber
will be harvested from NFS lands only where . . . the harvesting
system to be used is not selected primarily because it will give
the greatest dollar return or the greatest unit output of timber,”
16 U.S.C. § 1604(g)(3)(E)(iv). Count III alleged that the East
Side Decision violated the APA and the NFMA because the
Decision’s determination that clearcutting was “optimal” and
that even-aged logging was “appropriate” were based on the fact
that these logging methods would produce the most cherry
sawtimber and regenerate the most cherry for future logging,
thereby giving the greatest dollar return.18
After appellees and intervenor-defendants filed
objections to the R&R, the Magistrate Judge vacated the R&R
and heard oral argument on the outstanding motions for
summary judgment. Thereafter, the Magistrate Judge issued her
second R&R, recommending that summary judgment be granted
in favor of the defendants on Counts I and III. App. at 56A.
The Magistrate Judge concluded: “It is clear that the high value
of black cherry was a major consideration in developing the East
Side Decision. Whether the East Side Decision was based
primarily on the fact that black cherry will give the greatest
dollar return or the greatest unit output of timber is not so clear.”
App. at 74A. The Magistrate Judge went on to conclude the
following as to Count I:
18
Thus, although Counts I and III state separate causes of
action, they both turn on whether the method of forest
management and administration selected was chosen “primarily
to maximize dollar return.”
30
Considering that: (1) Congress did not define the
meaning of “primarily” in the NFMA; (2) no
court has held that the Secretary of Agriculture
has acted arbitrarily and capriciously in violation
of the [APA] and the NFMA by selecting even-
aged management as the harvesting system
primarily because it would give the greatest dollar
return or the greatest output of timber; (3) that
when the ANF was established in 1923 it had
already been substantially clear-cut, resulting in
stands of conifers and white pines being replaced
by stands dominated by hardwoods such as black
cherry, red maple, sugar maple and white ash,
which were excellent for sawtimber; (4) the
Forest Service is required to consider the costs
and benefits of its management practices; (5) in
developing the East Side Decision the Forest
Service included in its purposes, in addition to
providing a sustained yield of high quality
Allegheny hardwood, the provision of a variety of
age or size class habitat diversity as well as
diversity of wildlife; (6) health problems existing
in the ANF; and (7) management of the ANF is a
complex matter; this Court cannot find that in the
East Side Decision Defendants arbitrarily and
capriciously selected their harvesting system
primarily because it would give the greatest dollar
return or the greatest unit output of timber in
violation of the NFMA.
App. at 111A-112A.
31
In explaining her grant of summary judgment on Count
III, the Magistrate Judge stated:
Congress again did not define what it meant by
the “optimum method” and “appropriate” cuts and
these terms would appear to be extremely
ambiguous. Therefore, Congress would appear to
have delegated to the Forest Service the role of
determining what they mean, as long as their
definition is not arbitrary and capricious.
Plaintiff’s admit that the Forest Service made the
determination that even-aged logging was
“appropriate,” and that clearcutting was “optimal”
but assert that it did this “in order to regenerate
black cherry and other commercially desirable
species and achieve the “desired future condition”
set forth in the Land Management Plan.
During oral argument . . . counsel for Plaintiffs
admitted that their argument as to Count III is
essentially the same as their argument in Count I
– that the Forest Service chose the logging
methods which would produce the most cherry
and thereby give the greatest dollar return. For
the reasons given in the analysis of Count I,
Plaintiffs have not shown that Defendants’
determinations that clearcutting is “optimal” and
that even-aged logging is “appropriate” are
arbitrary and capricious” in violation of the
[APA].
32
Ohio App. at 113A-114A.
The District Court adopted the Magistrate Judge’s second
R&R and entered summary judgment for defendants. See
Allegheny Defense Project, supra at 25. This appeal followed.
II. DISCUSSION.
A. Jurisdiction
The District Court had jurisdiction under 28 U.S.C. §
1331 and 5 U.S.C. § 702. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291.
Article III and the APA require a party challenging an
administrative order to show injury in fact. Sierra Club v.
Morton, 405 U.S. 727, 733 (1972). “[T]he alleged harm must be
actual or imminent, not ‘conjectural’ or ‘hypothetical.’”
Whitmore v. Arkansas,
495 U.S. 149, 155 (1990). An
association has standing to bring suit on behalf of its members
when its members would otherwise have standing to sue in their
own right, the interests at stake are germane to the organization's
purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.
Friends of the Earth, Inc. v. Laidlaw Env. Servs., Inc.,
528 U.S.
167, 181 (2000). The Supreme Court has held that
environmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons “for
whom the aesthetic and recreational values of the area will be
lessened” by the challenged activity. Sierra Club v.
Morton, 405
U.S. at 735.
Here, neither the government nor the District Court have
33
questioned appellants’ standing; nor do we.19 Indeed, we see
nothing improbable about the proposition that the Forest
Service’s proposed activities in the ANF would cause nearby
residents to curtail their recreational use of the forest and would
subject them to economic and aesthetic harms. See Friends of
the Earth, 528 U.S. at 184-85.
B. Standard of Review
Our review of a district court’s grant of summary
judgment in favor of an administrative agency is de novo.
Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 693
(3d Cir. 1999). Moreover, under § 706 of the APA, we review
the agency’s final decision to determine whether the agency
acted in a manner that was “arbitrary, capricious, an abuse of
discretion or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). Though the agency is entitled to some deference, see
Kleissler v. U.S. Forest Serv.,
183 F.3d 196, 198 (3d Cir. 1999),
“that presumption is not to shield [the agency’s] action from a
thorough, probing, in-depth review,” Society Hill Towers
Owners’ Ass’n v. Rendell,
210 F.3d 168, 178 (3d Cir. 2000).
C. Alleged Deficiencies of the East Side Project
19
“[E]every federal appellate court has a special obligation
to satisfy itself not only of its own jurisdiction, but also that of
the lower courts, in every appeal presented to it, regardless of
whether the parties contest jurisdiction.” Lewis v. Int'l Broth. of
Teamsters, 826 F.2d 1310 (3d Cir.1987) (citing Bender v.
Williamsport Area Sch. Dist.,
475 U.S. 534 (1986) (internal
quotations omitted)).
34
ADP’s main contention is that the Forest Service’s
decision to use even-aged harvesting combined with fertilizer
and herbicide, and fencing, violates the APA and the NFMA
“because it seeks primarily to achieve the highest dollar return
by . . . emphasizing the logging and regeneration of black cherry
timber, which is by far the most commercially valuable species
in the Allegheny.” ADP Reply Brief at 2. ADP also contends
that the Forest Service incorrectly determined that the even-aged
logging authorized by the Project was “appropriate” and the
clearcutting “optimal” when that logging was authorized
primarily to give the greatest dollar return.20 The numerous
factors ADP cites to support that position include:
• In its summary judgment brief, the Forest Service
a ss e rted that th e R O D a d o p te d th e
recommendations of the Northeastern Forest
Experimental Station as set forth in the Marquis
manuscript. Page one of the manuscript states
that it is designed primarily as a guidebook for
practicing foresters whose goal is timber
production. Also, the Magistrate Judge found that
20
Although ADP articulates two different arguments, these
two arguments are merely different sides of the same coin.
Accordingly, the Magistrate Judge realized that they did not
require a separate analysis. See App. at 114a (“During oral
argument . . . counsel for Plaintiffs admitted that their argument
as to Count III is essentially the same as their argument in Count
I – that the Forest Service chose the logging methods which
would produce the most cherry and thereby give the greatest
dollar return.”).
35
the object of the manuscript “was to produce the
maximum profit from even-aged management.” 21
• In the same brief, the Forest Service cited to a
different M arquis publication e ntitle d,
“Quantitative Silviculture for Hardwood Forests
of the Alleghenies” and explained that it used the
publication’s “SILVAH” system as the scientific
basis for the ROD. ADP contends that the
express goal of
the SILVAH system is to “maximize growth and
value.” ADP also maintains that this document is
a “lengthy how-to manual for cultivating black
cherry and other high value hardwood species,”
and the document warns that the use of uneven-
aged logging will result in fewer Allegheny
Hardwoods and less profits.
• Several monitoring reports, including one
specifically cited by the Forest Service, document
how management techniques similar to those
authorized by the ROD have negatively impacted
other sites in the ANF. Thus, according to ADP,
by choosing to employ these techniques, black
cherry promotion and regeneration and the
resulting financial returns must be the Forest
Service’s primary goals.
21
The Magistrate Judge found the Forest Service’s adoption
of the manuscript “troubling.” App. at 110A.
36
• In its response to ADP’s administrative appeal of
the ROD, the Forest Service noted that more
uneven-aged logging was not included because it
would not regenerate black cherry. Additionally,
the Forest Service explained that fertilizer would
be applied to encourage more black cherry and
not because the forest’s soils were otherwise
depleted.
ADP also maintains that the Forest Service’s
explanations for why it selected the particular silvicultural
techniques are merely pretextual since “none of these
justifications can even begin to explain the East Side Decision’s
overwhelming preference for even-aged logging and the
accompanying techniques.” ADP Brief at 38. For example,
according to ADP:
• The Forest Service cannot justify its choice of
silvicultural techniques by relying on the assertion
that the success of uneven-aged management is
uncertain since, according to the Magistrate
Judge, uneven-aged management could work if it
was supported by the same supplemental
management – herbicides and fencing – that the
Forest Service uses to support even-aged
management. According to ADP, research has
found that uneven-aged management could be
used to obtain adequate regeneration of diverse
tree species and at the same time promote and
protect other multiple use resources.
37
• Health concerns also cannot justify the Forest
Service’s silvicultural practices since (1)
thousands of acres that will be subjected to the
Forest Service’s management scheme are quite
healthy and are not threatened by disease, and (2)
even-aged management creates stands with their
own health problems, including specific threats to
the health of black cherry trees such as the Cherry
Scallop Moth and Ground Level Ozone caused by
pollution.
• The Forest Service’s argument that it chose even-
aged management to maintain diversity is not
supported by the record. According to ADP,
even-aged management would result in the least
amount of old growth habitat, the highest amount
of soil compaction, the lowest amount of standing
dead and lying dead trees for wildlife habitat, the
highest acreage of forest with more than 30%
stocking of interfering ferns and grasses, and the
lowest acreage of forest with an intact mid-story
of all alternatives. Conversely, according to ADP,
simply not logging or using more uneven-aged
harvesting techniques would create the most
diversity in the ANF.
• The Forest Service cannot justify its practices by
claiming that it is simply maintaining conditions
created by earlier logging since the same
harvesting system authorized by the ROD has in
the recent past significantly increased the ANF’s
38
black cherry component.
• The Forest Service cannot blame the white-tailed
deer for the ANF’s increased conversion to a
forest dominated by black cherry since, according
to ADP, the even-aged logging being employed
by the Forest Service contributes to the deer
problem.
D. Analysis
The Forest Service maintains that the East Side Project
is consistent with NFMA’s prohibition against selecting a
harvesting system primarily because it will give the greatest
dollar return. We agree. Although it is beyond serious
contention that the Forest Service considered the economic
benefits of generating black cherry stands in structuring the
Project, economic concerns may be considered under the
Organic Act, MUSYA and NFMA.22 Indeed, Congress has
mandated consideration of economic factors. See §
22
Indeed, in its brief, ADP admits that:
the financial returns to be gained from proposed
logging are a relevant consideration and the East
Side Decision is not illegal simply because the
Forest Service notes and considers the
commercial value of its proposed logging.
ADP Brief at 28.
39
1604(g)(3)(A) (providing that forest planning regulations shall
include guidelines that “insure consideration of the economic
and environmental aspects of various systems of renewable
resource management”). However, the record does not support
ADP’s claim that economic considerations were paramount or
determinative in the Forest Service’s selection of appropriate
forest management techniques for the Project.
“When a party challenges agency action as arbitrary and
capricious the reasonableness of the agency’s action is judged
in accordance with its stated reasons.” In re: Comptroller of the
Currency, 156 F.3d 1279 (D.C. Cir. 1998) (citing Citizens to
Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971).
Moreover, we can assess the facts and evidence of record; we
cannot speculate about the agency’s ulterior motives to an extent
not supported by the record. See Ohio Forestry Ass’n. Inc. v.
Sierra Club,
523 U.S. 726, 736-37 (1998) (chastising the Court
of Appeals for the Sixth Circuit for surmising, without evidence
supported by “record citation,” that “the Forest Service suffered
from a kind of general ‘bias’ in favor of timber production and
clearcutting.”). Here, the voluminous record illustrates that
the Forest Service’s decision to utilize even-aged management
in MA 3 was not arbitrary and capricious. Rather, the record
shows that decision was based on a thorough analysis of a
variety of both economic and non-economic factors. As the
ROD explains, the overall purpose of the Project is the
implementation of the Forest Plan by “maintain[ing] and
restor[ing] healthy and resilient watersheds and ecosystems.”
App. at 33A. In order to do this, the Forest Service must initiate
reforestation treatments, establish tree seedlings, improve the
horizontal and vertical diversity in the ecosystem, regulate
stocking and species composition, supply forest products to
40
meet public demand and to contribute to the economic vitality
of local communities, and restore wildlife habitat. See App. at
34A-35A.
The ROD also embraces some of the diverse
considerations that provided the original justification for the
adoption of the Forest Plan in 1986. Those considerations
included tree species mix; wildlife species mix; forest structure;
and the fact that uneven-aged management is more problematic
in terms of deer browsing,23 requires more and longer-term use
of herbicides, and is less cost-effective than even-aged
management.24 See App. at 49A.
23
The ROD explains:
White tailed deer cause extensive damage by
feeding on seedlings of tree species found on the
ANF. Only even-aged methods that provide
abundant sunlight enabling seedlings to quickly
grow out of the reach of deer are practical. Even
then, reforestation practices (such as fencing,
fertilization, and site preparation) are often
necessary. The choice of silvicultural systems
would be wider were it not for the unusually high
deer browsing that occurs on the ANF.
App. at 49A.
24
In a lecture included in “Quantitative Silviculture for
Hardwood Forests of the Alleghenies,” the authors expressed
41
The record shows that in stands treated with even-aged
methods, the ANF is achieving adequate levels of regeneration.
In fact, there is as much as a 94 percent reforestation success
rate. A.R., Book 43 at F-7-8; see also App. 38A (Magistrate
Judge second R&R). Moreover, the record reflects the
“marginal” regeneration success rates of uneven-aged
management. An Appendix to the East Side EIS explains:
reforestation success with uneven-aged
management has been very marginal, whereas
results with even-aged management have been
quite good. Large scale implementation is not
consistent with the objectives of certain
management areas established by the Forest Plan,
and it does not seem prudent until more is known
about how to develop adequate tree seedlings of
appropriate species.
A.R., Book 43 at F-7. Given this record, we simply cannot
their concern for the use of uneven-aged management:
We must include one very important warning in
our discussion of [uneven-aged management],
however. There is no assurance that [uneven-
aged management] can be used successfully in
any region where deer populations are high . . .
There are many locations where reproduction
simply CANNOT be obtained.
A.R., Book 28 at 334 (emphasis in original).
42
conclude that the Forest Service should refrain from pursuing a
plan that addresses all of the aforementioned non-dollar related
factors merely because the Forest Service considered economic
factors as well.
The ROD also documents why the Forest Service chose
Alternative 1 (emphasizing even-aged management) over
Alternative 4 (emphasizing uneven-aged management). The
reasons include the following: (1) even-aged harvesting better
achieves the desired future condition in MA 3 of Allegheny
hardwoods because such shade-intolerant species regenerate
better with larger forest opening; (2) several of the shade-
tolerant tree species are experiencing decline or disease, and
uneven-aged management could result in greater susceptibility
to insect and disease outbreaks; (3) uneven-aged management is
less cost effective; and (4) there are general uncertainties as to
whether uneven-aged management could meet the needs of the
Plan. ROD, App. at 48A. Additional non-economic reasons for
selecting Alternative 1 include the fact that: (1) clearcutting is
the optimum method for maintaining aspen due to its intolerance
for shade; (2) even-aged management provides abundant
sunlight enabling seedlings to quickly grow out of the reach of
deer; and (3) even-aged management improves age-class
distribution, increases species diversity and moves the project
toward the desired future forest condition for the various MAs.
ROD, App. at 44A-47A.
ADP stresses the fact that even-aged management tends
to increase the amount of black cherry, and we realize that black
cherry is a very profitable species. Nevertheless, we cannot
accept the inference that the Forest Service reached this result
43
primarily because of the economic rewards endemic in even-
aged management given the conditions in the ANF. ADP’s
argument would require us to invalidate any properly developed
forest management plan that might have a concomitant
economic benefit; a result that is even less defensible given the
congressional mandate to consider economic concerns as long
as they do not drive the Plan.
This record simply does not support the inference that
ADP asks us to draw - that even-aged management was chosen
primarily because it will give the greatest dollar return. The
record demonstrates that the Forest Service’s emphasis on black
cherry is not based on the value of the tree alone. Black cherry
also has numerous environmental benefits, including its superior
resilience to drought, deer, and pests such as insects.25 The
Forest Service is surely not required to ignore these benefits
merely because black cherry has the additional benefit of its
commercial value. Accordingly, we cannot conclude that the
Forest Service’s choice of silvicultural practices, which
emphasized the regeneration of black cherry, was based
primarily on financial concerns. Although ADP may disagree
with the Forest Service’s decision to manage MA 3 through
even-aged harvesting, this disagreement is insufficient to
establish that the Forest Service’s choice of Alternative 1 was
25
In light of these environmental benefits, it is also
reasonable to conclude, that the resilience of black cherry and its
robustness have contributed greatly to the increase in that
species of Allegheny Hardwood in the ANF. We cannot say the
tree’s success is primarily the result of an economically
determined management plan of the Forest Service.
44
arbitrary, capricious, or an abuse of discretion. The record
provides ample support for the Forest Service’s stated rationale
and confirms that even-aged management was not selected
primarily to secure the greatest dollar return.
III. CONCLUSION.
Accordingly, for the reasons set forth above, we will
affirm the District Court’s order granting summary judgment to
the Forest Service on counts I and III of ADP’s complaint.
45
