Why are we RESTRICTED to very small areas of Forest Service or National Park regulated trails, parks and recreaction areas where fees are requuired?
"Just more bureaucracy" fails people's rights and limits their access to and use of Public Land
Below the Congressional "Acts" shown below you will be able to read cited court cases that reveal the failure of these Congressional Acts to protect the Public Land Rights of the people.
MUSYA, NEPA, NFMA, etc.
- "We could certainly slow the aging process down if it had to work its way through Congress. -- Will Rogers"
10. MULTIPLE-USE SUSTAINED-YIELD ACT OF 1960 1 (Public Law 86–517; Approved June 12, 1960)
AN ACT To authorize and direct that the national forests be managed under principles of multiple use and to produce a sustained yield of products and services, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That ¿16 U.S.C. 528À 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. The purposes of this Act are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the Act of June 4, 1897 (16 U.S.C. 475). Nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests. Nothing herein shall be construed so as to affect the use of administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.
SEC. 2. ¿16 U.S.C. 529À The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas. The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of this Act.
SEC. 3. ¿16 U.S.C. 530À In the effectuation of this Act the Secretary of Agriculture is authorized to cooperate with interested State and local governmental agencies and others in the development and management of the national forests.
SEC. 4. ¿16 U.S.C. 531À As used in this Act, the following terms shall have the following meanings: (a) ‘‘Multiple use’’ means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and
Sec. 5 MULTIPLE-USE SUSTAINED-YIELD ACT OF 1960 10–4 coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output. (b) ‘‘Sustained yield of the several products and services’’ means the achievement and maintenance in perpetuity of a highlevel annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.
The National Environmental Policy Act (NEPA) requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet this requirement, federal agencies prepare a detailed statement known as an Environmental Impact Statement (EIS). EPA reviews and comments on EISs prepared by other federal agencies, maintains a national filing system for all EISs, and assures that its own actions comply with NEPA.
Environmental Impact Statements -
Notices of Availability
Copies of EPA's weekly Notice of Availability that lists all of the Environmental Impact Statements (EISs) submitted to EPA during the previous week
Submitting Environmental Impact Statements
Instructions for federal agencies on how to submit an EIS to EPA
Obtaining Environmental Impact Statements
How to obtain copies EISs prepared by other federal agencies
EPA Comments on Environmental Impact Statements
Summaries of EPA comments on EISs prepared by other federal agencies
EPA Compliance with NEPA
How EPA complies with NEPA for many of its own actions
NATIONAL FOREST MANAGEMENT ACT OF 1976
16 U.S.C. §§ 1600-1614, August 17, 1974, as amended 1976, 1978, 1980, 1981, 1983, 1985, 1988 and 1990. Overview. The National Forest Management Act reorganized, expanded and otherwise amended the Forest and Rangeland Renewable Resources Planning Act of 1974, which called for the management of renewable resources on national forest lands. The National Forest Management Act requires the Secretary of Agriculture to assess forest lands, develop a management program based on multiple-use, sustained-yield principles, and implement a resource management plan for each unit of the National Forest System. It is the primary statute governing the administration of national forests.
Findings/Policy. The Act contains numerous Congressional findings pertaining to the management of national forests, including: it is in the public interest for the Forest Service to assess the nation's public and private renewable resources and develop a national renewable resource program; to serve the national interest, the development of the renewable resource program must include a thorough analysis of environmental and economic impacts, coordination of multiple-use and sustained-yield, and public participation; the Forest Service has the responsibility and opportunity to assure a national natural resource conservation posture that will meet our citizens' needs in perpetuity; the knowledge derived from coordinated public and private research programs will promote a sound technical and ecological base for the effective management, use and protection of the nation's renewable resources. § 1600.
Selected Definitions. Renewable resources: involves those matters within the scope of responsibilities and authorities of the Forest Service on August 17, 1974 and on the date of enactment of any supplemental or amending legislation thereto. § 1610.
Renewable Resource Assessment. The Secretary of Agriculture (Secretary) is required to prepare a Renewable Resource Assessment and to update the assessment every ten years. The Act specifies the broad inventory and policy information the assessment must contain. The Secretary must provide opportunity for public involvement and must consult with other interested governmental agencies. As part of the assessment, the Secretary must develop and maintain a comprehensive inventory of all National Forest System lands and renewable resources. The inventory must be kept current and must identify new and emerging resources and values.
The policy of Congress is that all forested lands in the National Forest System are to be maintained for the maximum benefits of multiple-use, sustained-yield management. The Secretary must identify all lands in the national forest system that require reforestation and treatment. This information must be transmitted to Congress annually along with an estimate of the funds needed to replant and otherwise treat all lands being cut over. The Secretary also must submit an annual report to Congress on the amounts, types, and use of herbicides and pesticides used on national forest lands.
Congress authorized $200,000,000 to be appropriated annually to meet the requirements of the Act, for reforesting and treating lands in the National Forest system. §§ 1601 and 1603.
Renewable Resource Program. The Secretary must develop a Renewable Resource Program for protection, management and development of the National Forest System, for cooperative Forest Service programs and for research. The program must be developed in accordance with the principles contained in the Multiple-Use Sustained-Yield Act of 1960 and the National Environmental Policy Act of 1969. The Act lists specific types of information that the Secretary must include in the program. The Act specifies a deadline of December 31, 1975 for the initial program and obligates the Secretary periodically to update the program for at least four fiscal decades. § 1602.
Resource Management Plans. The Act requires the Secretary to develop and implement resource management plans for each unit of the National Forest System. In doing so, the Secretary must: use an interdisciplinary approach; coordinate with state and local resource management efforts; provide for public participation; provide for multiple-use and sustained-yield of products and services. The Secretary must revise the management plans whenever significant changes occur in a unit and must update the plans at least once every 15 years. The Secretary must make all plans available to the public at convenient locations.
To the extent feasible, the Secretary must identify lands within the management areas that are not suited for timber production, considering physical, economic and other pertinent factors. Timber harvesting is prohibited on the lands for a ten-year period. The status of these lands must be reviewed at least every ten years, and they must be returned to timber production once conditions have changed so that they are suitable for timber harvesting.
The Act requires the Secretary to promulgate an extensive list of regulations regarding the development and revision of management plans. Several of these required regulations address wildlife resources and environmental protection. For example, the Secretary must specify procedures to ensure management plans are in accordance with the National Environmental Policy Act of 1969. Also, the Secretary must specify guidelines for developing management plans that: ensure consideration of both economic and environmental factors; provide for wildlife and fish; provide for the diversity of plant and animal communities; ensure timber harvesting will occur only where water quality and fish habitat are adequately protected from serious detriment; ensure clearcutting and other harvesting will occur only where it may be done in a manner consistent with the protection of soil, watersheds, fish, wildlife, recreation, aesthetic resources and regeneration of the timber resource.
The Secretary must appoint a committee of scientists who are not employees of the Forest Service to aid in promulgation of the required regulations. The views of the committee must be included in the public information supplied when regulations are proposed. § 1604.
Assistance to the States. The Secretary may use the information gathered under the Act to assist states and other organizations in planning for the protection, use and management of renewable resources on non-federal lands. § 1605.
Budget Requests for Forest Service Activities. Each time the Secretary updates the Renewable Resource Assessment and Program, the President must submit this information to Congress along with a detailed statement of policy regarding Forest Service activities. The statement of policy is to support budget requests for the five- or ten-year program period beginning during the term of the Congress. The President must carry out Forest Service programs in accordance with that policy, unless Congress disapproves it.
The Secretary must prepare an annual evaluation report on the accomplishments of the Renewable Resource Program and how those accomplishments relate to the goals of the Renewable Resource Assessment. The evaluation must assess the balance between economic factors and environmental quality factors, such as aesthetics, public access, wildlife habitat, and recreational and wilderness use. The report also must contain an estimate of the long-term costs and benefits of the Program. §§ 2604 and 1606.
Reforestation Trust Fund. The Act establishes the Reforestation Trust Fund to finance reforestation and timber stand improvements on National Forest lands. The Secretary of the Treasury must transfer to the trust fund the monies received from the collection of certain tariffs, up to a maximum amount of $30,000,000 per fiscal year. The Secretary of the Treasury also must submit an annual report to Congress on the operations and financial condition of the fund. § 1606(a).
Multiple-Use and Sustained-Yield. The Secretary of Agriculture must assure that the development and administration of National Forest System renewable resources are in full accord with the Multiple-Use Sustained-Yield Act of 1960. Congress set the year 2000 as the target year for when all backlogs of reforestation treatments must be reduced to a current basis and the major portion of multiple-use, sustained-yield management procedures must be operating on an environmentally sound basis. § 1607.
National Forest Transportation System. The Act declares that a transportation system must be installed to meet anticipated needs on an economical and environmentally sound basis. Any road constructed on National Forest System land in connection with a timber contract or other permit or lease must be designed with the goal of reestablishing vegetative cover on the roadway and other areas disturbed by construction of the road. Vegetative cover must be reestablished, through artificial or natural means, within ten years after termination of the contract, permit or lease, unless it is later determined that the road is needed as part of the National Forest transportation system. § 1608.
National Forest System. The Act declares that the National Forest System consists of units of federally owned forest, range and related lands throughout the U.S. and its territories, united into one integral system for the long-term benefit of present and future generations. The system includes: all national forest lands reserved from the U.S. public domain; all national forest lands acquired through purchase, exchange, donation or other means; the national grasslands and land utilization projects administered under Title III of the Bankhead-Jones Farm Tenant Act; other lands, waters or interests therein which are administered by the Forest Service or are designated for administration through the Forest Service as a part of the system. § 1609.
Timber. The Secretary must generally limit the sale of timber from each national forest to a quantity less than or equal to an amount that can be removed annually from the forest, in perpetuity, on a sustained-yield basis. The Act allows deviations from this general limitation where the deviation is consistent with multiple-use objectives and is made with public participation. § 1611.
Public Participation. The Secretary must establish, by regulation, procedures to give other government agencies and the public adequate notice and opportunity to comment upon proposed Forest Service activities. The Secretary may establish and consult advisory boards as necessary to carry out the Act. § 1612.
Regulations. The Secretary must prescribe necessary regulations to carry out the provisions of the Act. § 1613.
Chapter 4 - Statute Summaries
"Federal Wildlife & Related Laws Handbook"
Hardcover: 679 pages
Publisher: Government Institutes (August 28, 1998)
Product Dimensions: 1.8 x 9.0 x 11.5 inches
Shipping Weight: 4.25 pounds
A companion to the author's previous GI publication, State Wildlife Laws Handbook, and the only one of its kind, this handbook provides a single, comprehensive source of information on 280 wildlife and wildlife-related laws, treaties, and other federal documents. You'll find summaries of all federal laws, treaties, and executive orders that affect the subject of wildlife laws and insight into the range of actions the federal government has taken to conserve America's wildlife.
I included a picture of the book here just to show the weight of the handbook under which we are regulated. It's absurdity in my opinion is only exceeded by its assumption that the public should be burdened by it.)
There are 84 pages in .pdf format for your reading pleasure; but I chose to only reproduce here the public comment section.
The Content Analysis Report was prepared by the U.S. Department of Agriculture Forest Service (USDA Forest Service) Content Analysis Enterprise Team (CAET) following the conclusion of a 60-day comment period (November 30, 1999 -- January 30, 2000) on the Draft USDA Forest Service Strategic Plan (2000 Revision).
In the analysis 2,260 letters, e-mail, online comments, faxed materials, and comment forms (postcards or letters) were included.
Letters and e-mails came from 45 States and Canada.
Thirtyone responses came in a form that did not reveal geographic origin.
Comments came from Federal, State, county, and Tribal Governments; preservation/conservation organizations; the wood products, mining, and oil industries and associations; utility companies; recreation groups and associations; multiple use groups; university and other national/international professional and research organizations; and interested American citizens.
SUMMARY OF PUBLIC COMMENT
Public/employee comments focused on—
• More on individual program issues and emphasis than on the draft 2000 Revision goals and objectives.
• A desire for greater specificity about long-term measures.
• Questions about planning processes at all levels of the agency, the Government Performance and Results Act, and the purpose of a strategic plan for the USDA Forest Service.
• Lack of balance in presenting four objectives to address the underserved publics vs. primary mission programs.
• The relationship of near-term initiatives, such as the Natural Resource Agenda, watershed restoration, roads, and revision of the National Forest Management Act rule, to the strategic plan.
• A need to clarify the laws that authorize the USDA Forest Service to do its business, especially in relation to the agency’s mission and whether some laws are more important than others.
• Concern about the number of major program initiatives for which the USDA Forest Service was seeking input simultaneously.
• Request for clarification of terms, such as,“outcomes,”“outputs,” and “cross-cutting functions.”
• Perceptions about what people thought should be in the draft 2000 Revision that wasn’t there (for example, current or 2006 budget mix figures, baseline data for measures, economic analysis).
• Objections to paying fees for the use of USDA Forest Service facilities and programs.
• The use of “customers” rather than “owners” of national forests.
1 of 1 DOCUMENT
UNITED STATES CODE SERVICE
Copyright (c) 2006 Matthew Bender & Company, Inc.,
one of the LEXIS Publishing (TM) companies
All rights reserved
*** CURRENT THROUGH P.L. 109-229, APPROVED 5/31/06 ***
TITLE 16. CONSERVATION
CHAPTER 2. NATIONAL FORESTS
ESTABLISHMENT AND ADMINISTRATION
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
16 USCS § 529
§ 529. Authorization of development and administration; consideration to relative values of resources; areas of wilder-ness
The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom. In the ad-ministration of the national forests due consideration shall be given to the relative values of the various resources in particular areas. The establishment and maintenance of areas of wilderness are consistent with the purposes and provi-sions of this Act [16 USCS § § 528-531].
(June 12, 1960, P.L. 86-517, § 2, 74 Stat. 215.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Transfer of functions:
For transfer of functions relating to Alaska Natural Gas Transportation System, see Reorg. Plan No. 1 of 1979, which appears as 15 USCS § 719e, note and Act Oct. 24, 1992, P.L. 102-486, Title III, Subtitle B, § 3012(b), 106 Stat. 3128, which appears as 15 USCS § 719e note.
Code of Federal Regulations:
Forest Service, Department of Agriculture--Use of "Woodsy Owl" symbol, 36 CFR Part 272.
Related Statutes & Rules:
This section is referred to in 16 USCS § § 528, 530, 531.
Interpretive Notes and Decisions:
Forest Service has not violated 16 USCS § § 528 et seq. by approving timber harvesting in district of national for-est, despite prior damage to fish habitats from past timber harvests, in light of Service's adoption of measures to protect and enhance fish habitat in district in which harvesting is proposed. National Wildlife Federation v United States For-est Service (1984, DC Or) 592 F Supp 931, 22 Envt Rep Cas 1641, 14 ELR 20755.
As with 16 USCS § § 1602, 1604, and 42 USCS § 4332, 16 USCS § 529 requires only that U.S. Forest Service give due consideration to relative values of various resources in particular areas; it says nothing about particular meth-odology. Clinch Coalition v Damon (2004, WD Va) 316 F Supp 2d 364.
LEXSEE 519 F.2D 467,AT 469
RAY STRICKLAND and SAM LORIMER, Appellants, v. HON. ROGERS C. B. MORTON, et al., Appellees
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
519 F.2d 467; 1975 U.S. App. LEXIS 14156; 5 ELR 20678
June 18, 1975
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the District of Arizona.
Barnes, Choy and Goodwin, Circuit Judges.
[*468] BARNES, Senior Circuit Judge:
Appellants seek to reverse a decision of the Secretary of the Interior denying their separate applications for home-stead entry. Under procedures specified in the Classification and Multiple Use Act of 1964, 43 U.S.C. § § 1411-18, Federal public lands are to be classified by the Secretary of the Interior either as being "suitable for disposal," or alterna-tively, as being of such value "as to make them more suitable for retention in Federal ownership" and managed for pub-lic purposes. A classification decision that lands are not suitable for disposal has the effect of segregating from home-stead entry the lands so classified. The lands which appellants sought to homestead being classified (prior to appellants' applications) as lands "more suitable for retention," the Secretary denied appellants' applications for homestead entry. Appellants, invoking the jurisdictional provisions of the Administrative Procedure Act, sought judicial review of the Secretary's [**2] denial of their applications in Federal District Court. The district court dismissed appellants' action on the authority of this circuit's decision in Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969), which held that agency actions under the Taylor Grazing Act, 43 U.S.C. $ S 315 et seq., and under similar "permissive type" statutes, are "agency actions . . . committed to agency discretion by law" and, therefore, under the provisions of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2), are not subject to judicial review. (See Mollohan, supra, at 352, and 352, n. 5: and Lutzenhiser v. Udall, 432 F.2d 328 (9th Cir. 1970).) The Classification and Multiple Use Act of 1964, with which the instant case is involved, supplements the Taylor Grazing Act, and is also such a "permissive type" statute. Thus, the district court, relying on the aforementioned precedents, concluded that it did not have jurisdiction in this case to review the Secretary's classification of the land here in question as land more suitable to be retained in Federal ownership and managed for public purposes. There is no doubt that the [**3] district court correctly applied the legal principles set forth in our decisions in Mollohan and Lutzenhiser; however, a reinspection of those principles is now in order since both of those decisions were rendered before the United States Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971) which strictly interpreted § 701(a)(2), drastically limiting and con-fining that section's applicability. Under the Overton Park case, § 701(a)(2)'s preclusion of judicial review of "agency actions . . . committed to agency discretion by law" has been narrowly interpreted so that it deprives the court of juris-diction to review agency actions only "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply'." (401 U.S. at 410.) In light of the test stated in Overton Park, the question of whether the district court was deprived of jurisdiction by § 701(a) (2) in this case, depends upon whether the discretionary powers to classify land, committed to the Secretary by the provision of the Classification and Multiple Use [**4] Act of 1964, 43 U.S.C. § 1411, are so broad that the court cannot discern from the language of the statute, or from legislative intent, a legal basis upon which to review the Secre-tary's exercise of his discretion in the instant case.
[*469] Section 1411 of the Classification and Multiple Use Act of 1964 provides in pertinent part: § 1411. Disposal or retention of lands; classification by Secretary; considerations; designations Consistent with and supplemental to the Taylor Grazing Act of June 28, 1934 . . . (a) The Secretary of the Interior shall develop and promulgate regulations containing criteria by which he will determine which of the public lands and other Federal lands . . . shall be (a) disposed of because they are (1) required for the orderly growth and development of a community or (2) are chiefly valuable for residential, commercial, agricultural (exclusive of lands chiefly valuable for grazing and raising forage crops), industrial, or public uses or development or (b) retained, at least during this period, in Federal ownership and managed for (1) domestic livestock grazing, (2) fish and wildlife development and utilization, (3) industrial [**5] development, (4) mineral production, (5) occupancy, (6) outdoor rec-reation, (7) timber production, (8) watershed protection, (9) wilderness preservation, or (10) preservation of public values that would be lost if the land passed from Federal ownership. . . . (b) The Secretary of the Interior shall, as soon as possible, review the public lands as defined herein, in the light of the criteria contained in the regulations issued with this section n1 to determine which lands shall be classified as suitable for disposal and which lands he considers to contain such values as to make them more suitable for retention in Federal ownership for interim management under the principles enunciated in this section. In making his determination the Secretary shall give due consideration to all pertinent factors, including, but not limited to, ecology, priorities of use, and the relative values of the various resources in particular areas. . . . Pub.L. 88-607, § 1, Sept. 19, 1964, 78 Stat. 986.
n1 Regulations implementing the statute and issued by the Secretary in 1970, are found at 43 CFR § § 2400 et seq.
The provisions of this statute breathe discretion at every pore. Its language indicates, and the statute's legislative history serves to emphasize, n2 that Congress intended this Act to be a general grant of authority to the Secretary to administer the retention and disposal of those public lands under his domain as he felt would best comport with the na-tional interest and the public welfare. The Secretary's exercise of his discretion is subjected by the Statute to a required observance of certain procedural due process restrictions (not here put at issue). However, from a viewpoint of legisla-tive restrictions on the Secretary's exercise of his discretion on the merits of a classification decision, the statute pro-vides but few, and at that, the most generalized of limitations. The twelve "basic reasons" for land retention and disposal set forth in the statute, are, according to the legislative history (see note 2), merely "guides" to aid the Secretary in exer-cising his discretion. They can hardly be said to be very confining; and the statute's admonition to the Secretary to "give due consideration to all [*470] pertinent factors" in making his classification decision, is [**7] platitudinous at best.
n2 "This act provides that the Secretary of the Interior shall develop and promulgate regulations to govern the administration of the 467 million acres of public lands administered by the Bureau of Land Management. The act sets forth 10 basic reasons for public land retention or disposal to guide his actions. "In order to promote wide public understanding and acceptance of the criteria which will govern the Secre-tary's action, he is required to hold a public hearing on the regulations he will promulgate. Prior to the hearing, notice of the proposed regulation shall be published in the Federal Register and supplied to the Speaker of the House and President of the Senate. "To further effectuate coordinate management of public lands the Secretary, using the criteria of the above regulations, shall review the public lands and classify them into at least two broad groups: those subject to dis-posal and those subject to retention." (2 U.S. Code Cong. and Adm. News, 3756 (1964).)
Every statute, [**8] including of course § 1411, has limits which are capable of being exceeded. Thus, even under statutes granting an official the broadest discretion, there will be some (albeit fewer), n3 cases capable of arising under the statute which will present issues to which the court will, in the terms of the Overton Park test, "have law to apply." However, the test in Overton Park of when a reviewing court lacks jurisdiction due to the provisions of § 701 (a)(2), is not whether a statute viewed in the abstract lacks law to be applied, n4 but rather, whether "in a given case" there is no law to be applied. When a court is asked to review agency action in instances where considerable discretion is commit-ted by statute to an official, the court lacks jurisdiction due to the provisions of § 701(a)(2) only when the agency action of which plaintiff complains fails to raise a legal issue which can be reviewed by the court by reference to statutory standards and legislative intent. Where a statute grants broad discretion to an administrative official, absent some action clearly contradictory to a statutory provision or legislative intent (see, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, supra; [**9] Bronken v. Morton, 473 F.2d 790 (9th Cir. 1973)) a plaintiff challenging an exercise of that dis-cretion may find it an all but insurmountable task to be able to bring his case within this standard, but unless he does so § 701(a)(2) deprives the courts of jurisdiction to entertain his case.
n3 It should be noted that at least to a certain extent the Overton Park test is a flexible standard based on the pragmatic and jurisprudential truism that the broader the language of a statute, the less specific it is, and the more nebulous the Congressional intent, the harder it will be for a court to say that an agency has acted beyond the bounds of the discretion committed to it by law. When the reviewing court in a given case finds itself with no law to apply it has no function, and therefore should lack jurisdiction.
n4 For a statute, which when viewed in the abstract, has no law to be applied, is a meaningless one, if it can be termed "law" at all.
To interpret the Overton Park case as requiring a reviewing court, when faced with a question of whether it is deprived of jurisdiction by 701(a)(2) to view a statute in the abstract, examining it to see if there could in any conceivable instance, or under any conceivable situation, arise a case to which the statute would have law to ap-ply, would either (1) mean Congress intended § 701(a)(2) to be without application or effect, or (2) mean that the Supreme Court in the Overton Park case "judicially repealed" that statute. Both of these propositions we find as equally unpalatable as we do unlikely.
As it is only in the context of plaintiff's complaint that we can determine if there is law to be applied in the instant case, we now turn to an examination of appellants' pleadings to determine whether the questions which he has put at issue present legally cognizable legal issues, under statutory standards to be found in the Classification and Multiple Use Act of 1964. Appellants' pro se complaint alleges that the Secretary of the Interior abused his discretion in maintaining, in face of their application for homestead entry, his classification of the land here in question as lands not suitable for disposal. Appellants' reasons for believing that the Secretary has abused his discretion are:
"(2) Plaintiffs allege that said lands are adjacent to lands under private ownership which are under cultivation and irrigation.
(3) That said lands are best suited for agricultural purposes and are located within a non-critical wa-ter area, upon which plaintiffs have irrigation well drilling permits. . . ." (C.T. 2, lines 13-17). In seeking to amend their complaint after appellees filed a motion to dismiss for lack of jurisdiction, appellants fur-ther allege:
"Thus, more [**11] work will be required on plaintiffs' complaint because of the clouding of the issues by the government which originally involved a sole question of proper classification for specific parcels of land for homestead purposes, where the record shows that [*471] said lands are suitable agricultural lands in a non-critical water area, which is susceptible to irrigation from a known source of water supply, and which therefore comes within the Multiple Use laws and amendments to the Taylor Grazing Act, which allow homestead entry upon such lands."
(C.T. 40 lines 23-32, emphasis added.)
Even in the considerable spirit of generosity with which this court views pro se complaints, we cannot say that ap-pellants have here alleged anything more than their belief that the Secretary had made an error in judgment - a wrong decision. n5
n5 While reference is made in appellants' complaint to a claim of right to relief under 43 U.S.C. § § 1411-18, no facts are pleaded to raise issues under those sections, or under their exemptions (§ 1414), or their termi-nation (§ 1418).
In the case of Ness Investment Corp. v. United States Department of Agriculture, 512 F.2d 706 (9th Cir. 1975), this circuit recently reviewed in light of § 701(a)(2) and the Overton Park standard, the question of when a court has juris-diction to review discretionary agency action for abuse of discretion, the court, after reviewing the precedent in this cir-cuit harmonized the cases, observing: "In considering the 'committed to agency discretion' exception to review, this circuit has been, upon a proper showing, inclined to find jurisdiction to review allegations that an agency has abused its discre-tion by exceeding its legal authority or by failing to comply with its own regulations; but this circuit has not been quick to approve review of allegations that an agency abused its discretion merely by deciding an issue, involving agency expertise, adversely to a complaining party. This approach accords with the suggestion of the Supreme Court in Overton Park that review is required where there is law to apply. And it finds support in the decisions in United States v. George S. Bush and Co., 310 U.S. 371 [84 L. Ed. 1259, 60 S. Ct. 944] [**13] (1940) and Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309 [2 L. Ed. 2d 788, 78 S. Ct. 752] (1958). (512 F.2d at 714.)
The Ness court went on to hold:
"Where consideration of the language, purpose and history of a statute indicate that action taken thereunder has been committed to agency discretion: (1) a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of constitutional, statutory, regulatory or other legal mandates or restrictions; (2) but a federal court does not have jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion consists only of the making of an informed judgment by the agency." (512 F.2d at 715.) Applying these principles to the instant case, we find appellants' complaint fits squarely into the second category defined by the Ness court. n6 It may [*472] be debatable whether the lands here in question are better suited for agri-cultural purposes or for some public purposes such as wildlife preservation, wilderness preservation, or outdoor recrea-tion, [**14] but appellants having raised no issue and having made no showing, that the Secretary in making his classi-fication decision acted contrary to law, or beyond the limits Congress has put on his discretion, the district court, under the provision of 5 U.S.C. § 701(a)(2), lacked jurisdiction to hear this case.
n6 We think it not insignificant to note that the Ness court mentions discretionary land classification deci-sions such as those involved in the Mollohan case as typical of the type of cases raising issues falling within the non-reviewable category. The Ness court observed: "Other cases which have treated a similar problem arising under the Taylor Grazing Act in-clude Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969); Sellas v. Kirk, 200 F.2d 217 (9th Cir. 1952). "In these cases broad discretion was found to exist in areas similar to that with which we are here concerned. In considering the context and purpose of the statute, we find that we must dis-agree with counsel and that we share the view of the panels which decided Mollohan and Sellas. Agency expertise and knowledge is deeply involved in the decision to award a special use permit. What is needed, and where, are questions best answered by the forest service, which is involved on a daily basis with the management and use of the national forests. The federal courts have no such expertise, nor, in this case, do the courts have any standards by which acceptance or rejec-tion of a particular applicant could be tested. These factors imply that the decision to award a special use permit for construction and operation of a recreational facility was left with the issu-ing authority and that Congress did not intend for the federal courts to redetermine the question who was qualified to receive a permit. Hi-Ridge Lumber Co. v. United States, 443 F.2d 452 (9th Cir. 1971). We hold that the decision here involved was committed to agency discretion by law and that federal courts have no jurisdiction to review such a decision."
(512 F.2d at 716.)
We find this holding, and the principles expressed in this opinion, fully consistent with our decision in Bronken v. Morton, 473 F.2d 790 (9th Cir. 1973). The Bronken case also deals with the land classification authority of the Secre-tary of the Interior; however, unlike in the instant case, the Bronken case posed a clear instance of the Secretary acting without authority and directly contrary to legislative intent ( Id. at 795). In Bronken the Secretary had attempted to ap-ply retroactively certain statutory provisions which Congress very clearly intended to have only prospective applica-tions. n7 Thus, Bronken is a case falling within the first of the denominated categories identified by the court in Ness, and the Bronken court properly assumed jurisdiction over that case.
n7 Thus it is in this context that the following remarks of the court in Bronken are to be read: "While it is true, as the District Court observed, that the Secretary's discretion in classifying public lands is quite broad, it is equally true that this discretion is not absolute. His decisions are beyond judicial scrutiny only when he possesses discretion, and he acts within the limits Con-gress has placed on this discretion." ( Bronken v. Morton, 473 F.2d at 794.)
The district court in the instant case did not err in finding pursuant to 5 U.S.C. § 701(a)(2) that it was without ju-risdiction to review the Secretary's classification of the land here in question. Nor, of course, can appellants claim jurisdiction under 28 U.S.C. § 1361, or any right to mandamus relief, since mandamus will only lie to command an official to perform a mandatory (i.e. nondiscretionary) act. (See Work v. United States, 267 U.S. 175, 177, 69 L. Ed. 561, 45 S. Ct. 252 (1925). In summary then, the classification of lands by the Secretary as lands more suitable for retention than disposal has the effect of withdrawing those lands from homestead entry. Until a classification effectively withdrawing lands from entry is revoked, an application for entry may be disallowed. ( 43 CFR § 2450.6.) Since the denial of appellants' appli-cation for entry on lands withdrawn from entry presents no factual issue, and this court, for the reasons herein men-tioned, lacks jurisdiction to review the correctness of the Secretary's classification decision, it was appropriate for the district court to grant summary judgment [**17] in favor of the defendant under Rule 56(c), Federal Rules of Civil Pro-cedure. AFFIRMED.
LEXSEE 608 F.2D 803,AT 806
DAVID G. PERKINS and THOMAS Y. PERKINS, Appellants, v. BOB BER-GLAND, Secretary of Agriculture, U.S. Department of Agriculture, JOHN R. McGUIRE, Chief, Forest Service, WILLIAM B. HURST, Regional Forester, JAMES KIMBALL, DON BOLANDER, Supervisor of the Prescott National Forest, Appellees.
UNITED STATES COURT OF APPEALS, NINTH CIRCUIT
608 F.2d 803; 1979 U.S. App. LEXIS 10282; 10 ELR 20070
November 21, 1979
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the District of Arizona.
Robert K. Best, Sacramento, Cal., for appellants.
Carl Strass, Dept. of Justice, Washington, D. C., for appellees.
Before HUFSTEDLER and GOODWIN, Circuit Judges, and HOFFMAN n*, District Judge.
* The Honorable Walter E. Hoffman, Senior United States District Judge for the Eastern District of Vir-ginia, sitting by designation.
Two brothers, who grazed cattle on public land, sued the Department of Agriculture to challenge a reduction in their grazing permits. They appeal a summary judgment for the government. Thomas and David Perkins hold permits entitling each of them to graze cattle within the Prescott National Forest. The permits are issued by the United States Forest Service, an arm of the Department of Agriculture, as authorized by 16 U.S.C. § 580L [*804] (1976). In 1972, the Forest Supervisor, on recommendation of the local District Ranger, reduced Thomas's permit from 517 to 250 head of cattle (subsequently corrected to 266). The following year, the Su-pervisor similarly reduced David's permit from 158 to 50 head (later corrected to 58). [**2]
The agency based the reduction decisions on its finding that the public land involved had been damaged by over-grazing. The decisions were finally upheld by the Secretary of Agriculture in 1977. After exhausting administrative remedies, Thomas and David brought separate actions in district court, seeking judicial review and an injunction against enforcement of the reductions. The cases were consolidated in district court, and are considered together on appeal. I.
The district court correctly rejected the Perkins' first line of attack: that the reductions were so drastic as to consti-tute revocations of their grazing permits. The Perkins brothers argued that revocation requires application of the criteria found in the regulation governing revocation and suspension, 36 C.F.R. § 231.6 (1977). n1 The Forest Service admit-tedly did not apply those criteria here. However, the district court held, and we agree, that the permits were not in fact suspended or revoked.
n1. This regulation, entitled "Revocation and suspension of grazing permits", reads as follows:
"The Chief, Forest Service and Regional Foresters are authorized to revoke or suspend in whole or in part, and Forest Supervisors are authorized to revoke up to 20 percent, or suspend in whole or in part, term grazing permits or grazing agreements on all National Forest System lands and on other lands under Forest Service con-trol if:
"(a) The permittee does not comply with the provisions and requirements in the grazing permit, the regula-tions of the Secretary of Agriculture on which the permit is based, or instructions issued by Forest officers; and
"(b) The permittee knowingly and willfully makes a false statement or representation in grazing application or amendments thereto; or
"(c) The permittee violates or does not comply with, Federal laws or regulations or State laws relating to protection of air, water, soil and vegetation, fish and wildlife, and other environmental values when exercising the grazing use authorized by the permit."
The Forest Service reduced the allowable use of the lands for reasons unrelated to the punitive purpose of 36 C.F.R. § 231.6. That regulation allows revocation only in the case of misconduct by a grazing permittee, and in no way relates to allotment reductions necessitated by changed conditions of the range resulting from causes other than permittee mis-conduct. However drastic an effect on their livelihood the reductions here may have had, the permits were not revoked. Thus, the district court was right in rejecting the revocation theory.
The Perkins brothers argued, in the alternative, that the Secretary's decisions, if not "revocations", were nonetheless subject to judicial review. The government responded, and the district court agreed, that further review was unavailable because the decisions were "committed to agency discretion by law." 5 U.S.C. § 701(a)(2) (1976). n2 This conclusion is challenged on two grounds: (1) the reduction decisions are not so committed; or (2), if so committed, the decisions are nevertheless subject to limited judicial review for clear arbitrariness, irrationality, or abuse of discretion.
n2. The Administrative Procedure Act provides in part: "This chapter (on judicial review) applies * * * ex-cept to the extent that * * * agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2).
Both sides purport to rely on the "law to apply" test established in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), for determining when judicial review is precluded under section 701(a)(2). The Secretary also relies on a series of post-Overton Park cases in this circuit n3 to support the [*805] dis-trict court's determination that the reduction decisions are immune from review. Neither party, however, appears to have called to the trial court's attention the new legislation enacted during the time this controversy was pending before the agency. Thus, the trial court never passed upon the effect of a comprehensive public lands statute which now gov-erns the reviewability issue. Federal Land Policy and Management Act of 1976 (FLPMA), Pub.L.No. 94-579, 90 Stat. 2743, codified at 43 U.S.C. § § 1701 Et seq. (1976). n4
n3. Nelson v. Andrus, 591 F.2d 1265 (9th Cir. 1978); City of Santa Clara v. Andrus, 572 F.2d 660 (9th Cir.), Cert. denied sub nom. Pacific Gas & Electric Co. v. Santa Clara, 439 U.S. 859, 99 S. Ct. 176, 58 L. Ed. 2d 167 (1979); Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975); Ness Investment Corp. v. United States Dept. of Agriculture, 512 F.2d 706 (9th Cir. 1975).
n4. This legislation is presented only obliquely on appeal. The government has countered appellants' argu-ment that provisions of other legislation (also presented for the first time in this court) supply "law to apply" by saying that the provisions and policies of FLPMA now override those of earlier public land enactments.
FLPMA empowers the Secretaries of the Interior and Agriculture, each of whom grants grazing privileges on pub-lic lands within departmental jurisdictions, to incorporate in grazing permits and leases "such terms and conditions as (the Secretary) deems appropriate for management of the * * * lands." 43 U.S.C. § 1752(e). The same section further provides that the Secretary must specify in the agreement "the numbers of animals to be grazed * * * and that * * * (the Secretary) may reexamine the condition of the range at any time and, if he finds on reexamination that the condition of the range requires adjustment in the amount or other aspect of grazing use, that the permittee or lessee shall adjust his use to the extent the Secretary concerned deems necessary." n5
n5. While this precise language does not appear in the permits involved here, which antedated FLPMA, the permits explicitly provided that:
" * * * The number and kind of livestock * * * permitted to graze are as follows, unless modified by the Forest Service in the Bill for Collection: * * *.
" * * * Each year prior to the beginning of the grazing season, the Forest Supervisor will send the permittee a Bill for Collection specifying, for the current year, the kind and number of animals allowed to graze * * *."
" * * * The number of livestock * * * may be adjusted when determined by the Forest Supervisor in charge to be needed for resource protection. Except in extreme emergencies where resource conditions are being seri-ously affected by livestock use, or other factors * * *, notice of a scheduled reduction of numbers of livestock * * * will be given one (1) full year before a reduction in permitted numbers * * * becomes effective."
If we were confronted with the quoted language alone, we would have to consider the government's argument that the Secretary's discretion is so broad in determining grazing capacity necessarily exercised in accord with expert judg-ments as to preclude all judicial review under Overton Park. Elsewhere, however, FLPMA explicitly provides that "it is the policy of the United States that * * * judicial review of public land adjudication decisions be provided by law." 43 U.S.C. § 1701(a)(6) (1976). n6 This declaration of [*806] policy at the outset of FLPMA removes any doubt Congress might otherwise have allowed to obscure the reviewability of grazing reduction decisions made subsequent to the law's enactment. Since 1976, the Secretary's decision is reviewable.
n6. Section 1701(b) of Title 43 provides that the thirteen policies enumerated in section 1701(a) "shall be-come effective only as specific authority for their implementation is enacted by this Act or by subsequent legis-lation * * *." We do not understand by this language that Congress intended the courts to ignore the policy ex-pressly favoring judicial review. We note that the expressed policy favoring judicial review survived the con-gressional conference committee in the face of vocal opposition by the Department of the Interior, the other agency authorized to permit grazing on federal land. In a letter to the House Committee, Jack Horton, then As-sistant Secretary of the Interior, stated that the draft then under consideration was "almost completely unaccept-able to the Administration." H.R.Rep.No. 94-1163, Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 6175, 6216. One of the "major problem areas" was specifically identified in this way: "The policy as to judicial review * * * is so broad as to clog the courts with cases involving individuals who cannot get what they want under the law." Id. at 6217. In addition, the former Bureau of Land Management director (Interior Department), writing about FLPMA after its passage, expressed concern that the policy provision would change well-established precedent if discre-tionary decisions were subject to court review, thereby resulting in substantial delays in governmental decision-making, and undermining executive agency independence. Landstrom, An Operational View of the BLM Or-ganic Act (FLPMA), 54 Denver L.J. 455, 458 (1977). The congressional committee knew how to exempt certain agency action from judicial review within the Act. It added a section to the final bill explicitly forbidding judicial review of the adequacy of certain reports required by the Act. 90 Stat. 2743, § 701(i), 43 U.S.C. § 1701 note. There is no similar prohibition with re-spect to individual grazing decisions.
The remaining issue thus requires us to define the scope of review appropriate to the Secretary's decisions here.
Appellants assert for the first time in this court that certain sections of the Multiple-Use Sustained-Yield Act of 1960 (MUSYA), 16 U.S.C. § § 528 Et seq., supply standards which a court can apply on judicial review to the highly technical assessment of the proper carrying capacity of grazing land. n7 These statutory expressions give the appellants scant support. It must be presumed, at least initially, that those so-called standards were properly considered by the agency. These sections of MUSYA (16 U.S.C. § § 528, 529, 531) n8 contain the most general clauses and phrases. For example, the agency is "directed" in section 529 to administer the national forests "for multiple use n9 and sustained yield of the several products and services obtained therefrom," with "due consideration (to) be given to the relative val-ues of the various resources in particular areas." This language, partially defined in section 531 in such terms as "that (which) will best meet the needs of the American people" and "making the most judicious use of the land", can hardly be considered [**8] concrete limits upon agency discretion. Rather, it is language which "breathe(s) discretion at every pore." Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975). What appellants really seem to [*807] be saying when they rely on the multiple-use legislation is that they do not agree with the Secretary on how best to administer the forest land on which their cattle graze. While this disagreement is understandable, the courts are not at liberty to break the tie by choosing one theory of range management as superior to another.
n7. Because the Perkinses failed to suggest in district court that MUSYA provided "law to apply", we con-sider that argument here only in connection with our duty to define the proper scope of review on remand.
n8. These sections of Title 16 read as follows:
"It is the policy of the Congress that the national forests are established and shall be administered for out-door recreation, range, timber, watershed, and wildlife and fish purposes. * * * " Section 528. "The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services ob-tained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas. The establishment and maintenance of areas of wilderness are consistent with the purposes and provisions of sections 528 to 531 of this title." Section 529.
"As used in sections 528 to 531 of this title, the following terms shall have the following meanings: "(a) "Multiple use' means: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to confirm to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration be-ing given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.
"(b) "Sustained yield of the several products and services' means the achievement and maintenance in per-petuity of a high-level annual or regular periodic output of the various renewable resources of the national for-ests without impairment of the productivity of the land." Section 531.
n9. Interestingly, the multiple use concept reappears throughout FLPMA, 43 U.S.C. § § 1701(a)(7), 1702(c), 1712(c)(1), 1732(a). This language came into the legislation even though the select commission which recommended the enactment of comprehensive public land legislation which eventually materialized as FLPMA regarded the hortatory "multiple use" expression as meaning "all things to all people." Conklin, PLLRC (Public Land Law Review Commission) Revisited A Potpourri of Memories, 54 Denver L.J. 445, 448 (1977).
Thus, we conclude that only very narrow review is appropriate here. The district court should ascertain whether the agency's factual findings as to range conditions and carrying capacity are arbitrary and capricious. 5 U.S.C. § 706(2)(A). n10 If not, the matter ends there. n11 In making that inquiry, the court may consider the Perkins brothers' contention that the methods utilized by the Forest Service in determining capacity were irrational. n12 But their charge that the agency decision was "unrelated to reality" sheds no light on the subject. We find nothing in the statutes author-izing [**10] courts to choose between battling experts on the definition of "reality". Consequently, the trial court must refrain from entering that fray if it turns out that the appellants' position would require a choice between experts.
n10. Although the Perkinses apparently received hearings within the agency's review process, there is no statutory requirement for a hearing. Thus, the substantial-evidence test of section 706(2)(E) does not apply. Stickelman v. United States, 563 F.2d 413, 417 (9th Cir. 1977). Instead, section 706(2)(A) supplies the appropri-ate standard for the factual review. Id.
n11. Appellants also employ the routine charge that the agency abused its discretion. However, to overturn an administrative action on the ground of abuse of discretion, the challenger must show some evidence of abuse. We detect none here.
n12. To prove that the agency employed "irrational" methods for calculating carrying capacity, a contesting party must show that there is virtually no evidence in the record to support the agency's methodology in gather-ing and evaluating the data.
The judgment is vacated and the case is remanded to the district court for the very limited factual review available under the "arbitrary and capricious" standard.
Neither party is to recover costs in this court.
LEXSEE 316 F. SUPP. 2D 364
THE CLINCH COALITION, et al., Plaintiffs, v. WILLIAM E. DAMON JR., et al., Defendants.
Civil Action No. 2:02CV00212
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA, BIG STONE GAP DIVISION
316 F. Supp. 2d 364; 2004 U.S. Dist. LEXIS 7933
May 6, 2004, Decided
DISPOSITION: [**1] Defendants' motion for summary judgment granted. Intervenors' motion for summary judg-ment granted. Plaintiffs' motion for summary judgment denied. Decision of United States Forest Service upheld.
COUNSEL: For The Clinch Coalition, Virginia Forest Watch, The Wilderness Society, Southern Appalachian Biodi-versity Project, Plaintiffs: David W. Carr, Jr., LEAD ATTORNEY, CHARLOTTESVILLE, VA.
For The Clinch Coalition, Virginia Forest Watch, The Wilderness Society, Southern Appalachian Biodiversity Project, Plaintiffs: Douglas A. Ruley, LEAD ATTORNEY, ASHEVILLE, NC.
For The Clinch Coalition, Southern Appalachian Biodiversity Project, Plaintiffs: Marty Bergoffen, LEAD ATTOR-NEY, SOUTHERN APPALACHIAN BIODIVERSITY PROJECT, ASHEVILLE, NC.
For William E. Damon, Jr., United States Forest Service, Defendants: Gail Orendorff, LEAD ATTORNEY, FEDERAL AVIATION ADMINISTRATION, Thomas L. Sansonetti, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, WASHINGTON, DC.
For William E. Damon, Jr., United States Forest Service, Defendants: Julie C. Dudley, LEAD ATTORNEY, UNITED STATES ATTORNEYS OFFICE, ROANOKE, VA.
For William [**2] E. Damon, Jr., United States Forest Service, Defendants: Matthew Tilden, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF AGRICULTURE, ATLANTA, GA.
For The Ruffed Grouse Society, Joseph Hobbs, Gregory Isenberg, Defendants: Barbara A. Miller, William P. Horn, LEAD ATTORNEYS, BIRCH HORTON BITTNER & CHEROT, WASHINGTON, DC.
For The Ruffed Grouse Society, Joseph Hobbs, Gregory Isenberg, Defendants: Wade W. Massie, LEAD ATTORNEY, PENN STUART & ESKRIDGE, ABINGDON, VA.
JUDGES: By: GLEN M. WILLIAMS, Senior United States District Judge.
OPINIONBY: GLEN M. WILLIAMS
[*367] Memorandum Opinion
By: GLEN M. WILLIAMS,
Senior United States District Judge
This case involves the claims of the Clinch Coalition, the Virginia Forest Service Watch, the Wilderness Society and the Southern Appalachian Biodiversity Project, (hereinafter, "Plaintiffs"), against William E. Damon, Jr., being sued in his official capacity as the Forest Supervisor for the Virginia National Forests, and the United States Forest Ser-vice, (hereinafter, "Defendants"), as defendants, and the Ruffed Grouse Society, Joseph Hobbs and [*368] Gregory Isenberg, (hereinafter, "Intervenors"), as defendant intervenors. The Plaintiffs seek a declaratory [**3] judgment that the Defendants have violated the National Environmental Policy Act, (hereinafter, "NEPA"), and the National Forest Management Act, (hereinafter, "NFMA"), by preparing an inadequate Environmental Analysis for the Bark Camp tim-ber sale, (hereinafter, "EA"), by failing to supplement this EA in light of significant new information and changed cir-cumstances and by failing to analyze adequately the economic impacts and net present benefits of this timber sale. (Complaint for Declaratory and Injunctive Relief, (hereinafter, "Complaint"), Docket Item No. 1, at 14.) The Plaintiffs also seek appropriate injunctive relief to insure that the Defendants comply with NEPA and NFMA, and specifically to insure that the Defendants take no further actions toward implementing this timber sale until they have complied with these laws. (Complaint at 14.) The Plaintiffs wish this court to order that the Defendants' Finding of No Significant Im-pact, (hereinafter, "FONSI"), and Decision Notes concerning this project be vacated, that this court award the Plaintiffs the costs of this action, including reasonable attorneys' fees and expert witnesses' fees and that this court grant such other relief [**4] as this court deems just and proper. (Complaint at 14.) This matter is before this court on a Motion for Summary Judgment filed by the Plaintiffs, (Docket Item No. 22), a Motion for Summary Judgment filed by the Defen-dants, (Docket Item No. 35), and a Motion for Summary Judgment filed by the Intervenors, (Docket Item No. 34.). This court exercises federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331 under the Declaratory Judg-ment Act, 28 U.S.C. § § 2201 and2202, and the Administrative Procedures Act, (hereinafter, "APA"), 28 U.S.C. § § 701-706. Oral argument was held on this matter before this court on January 22, 2004, and this case is now ripe for de-cision. For the reasons set forth below, the Motion for Summary Judgment filed on behalf of the Defendants is hereby GRANTED; the Motion for Summary Judgment filed on behalf of the Intervenors is hereby GRANTED; and the Mo-tion for Summary Judgment filed on behalf of the Plaintiffs is hereby DENIED. Therefore, the decision of the United States Forest Service is hereby UPHELD.
I. Procedural History
The Plaintiffs filed [**5] the complaint in this matter on December 17, 2002. The Defendants timely filed their an-swer to this complaint on March 3, 2003. On March 18, 2003, the Ruffed Grouse Society, Joseph Hobbs and Gregory Isenberg filed a Motion to Intervene. A hearing was held on the Motion to Intervene on May 27, 2003, and by Order of this court entered on the same day, the Ruffed Grouse Society, Joseph Hobbs and Gregory Isenberg were added as de-fendant intervenors. The Intervenors timely filed their answer to the complaint on August 1, 2003.
On July 15, 2003, the Plaintiffs filed their Motion for Summary Judgment. The Intervenors filed their Motion for Summary Judgment on August 18, 2003. The Defendants filed their Motion for Summary Judgment on August 20, 2003. Oral argument was held on these motions on January 22, 2004. II. Factual Background
The National Forests in the United States were established by congressional mandate in order to "improve and pro-tect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States." 16 U.S.C.A. § 475 [**6] (West 2000). In addition, [*369] National Forests were established and are to be "administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C.A. § 528 (West 2000). In 1936, the Jefferson National For-est was created and joined with the George Washington National Forest in 1995. The two Forests include lands that are parts of the Commonwealths of Virginia and Kentucky and the state of West Virginia; altogether, the Forests contain approximately 1.8 million acres of land.
The National Forests are managed under the Land and Resource Management Plan and final Environmental Impact Statement for the Jefferson National Forest, (hereinafter, "Management Plan"). This plan addresses each section of the Forests separately, and it provides a set of goals and management practices unique to each area. The Bark Camp Area, the area at issue in this case, is included in the Clinch Ranger District. The Bark Camp Area consists of the High Knob Tower, Bark Camp Lake, High Knob Lake, the Chief Benge Scout Trail and the Stony and Little Stony Creek Water-sheds of the Clinch River. Many rare and endangered species are present in the Clinch River. [**7] The Bark Camp Area attracts many visitors because of its recreational opportunities, hunting, fishing, hiking, wildlife and beauty. On a clear day, a visitor to High Knob Tower can observe five states; this particular spot of the Bark Camp Area attracts ap-proximately 40,000 visitors each year. In fact, the Bark Camp Area is the most heavily used area for recreation in the Clinch Ranger District. Many people have made the Bark Camp Area their permanent home, including many of the members of the Clinch Coalition. Since the 1980s, the Bark Camp Area lost hundreds of acres of forest to heavy log-ging. In fact, a large amount of the Bark Camp Area has undergone clearcutting. Certain sections of the Bark Camp Area, including High Knob, have been developed for the procurement of oil and gas, projects that also have required the removal of many trees.
The Management Plan provides for careful management of the Bark Camp Area, calling for a diverse habitat, elimination of non-native species and providing an adequate healthy habitat for a variety of wildlife. The Bark Camp Area is not currently in conformity with the Management Plan in that it contains too little early successional growth. The [**8] Forest Service has estimated that, without a large phenomenon such as a forest fire, the Bark Camp Area will be devoid of early successional habitat sometime in 2004. A forest must contain a full range of habitat in order to sup-port a diverse population of wildlife; however, the forests of Virginia, Kentucky and West Virginia do not contain such a full range of habitat. This includes the Bark Camp Area. As a result, the Forest Service took action to remedy the situation in the Bark Camp Area. This action became known as the Bark Camp Timber Sale Projects.
The project at issue in this litigation has its beginnings in the late 1990s. In September 1997, the Clinch Ranger District of the Jefferson National Forest, which encompasses the Bark Camp Area, began the NEPA process by issuing a scoping notice for public comment on the Bark Camp Timber Sale Projects. Because of the great public interest in this project, the Clinch Ranger District hosted four public consensus meetings in 1999 to elicit further public commentary on how to manage the many resources in the Project area. These public comments were incorporated into the analysis of the proposed Project. Eventually, the Forest Service [**9] compiled the original Environmental Assessment, (hereinaf-ter, "EA"), in this case and submitted it to the public for the requisite 30-day [*370] comment period. The Clinch Coa-lition, Virginia Forest Watch and the Southern Appalachian Biodiversity Project submitted comments or expressed in-terest in the Project during that 30-day period. As a result of this public commentary, the Forest Service issued a revised EA, the one at issue in this case, in March 2001.
The Bark Camp EA, which is at issue in the present action, was conducted to provide a plan for the management of vegetation in the Bark Camp Area in order to bring that area into compliance with the Management Plan. After a lengthy investigation and public comment period, the Forest Service issued the revised EA, which outlined a plan to improve timber stand through prescribed burning and removing non-native plant species. The revised EA identified eight alternatives and analyzed each alternative. Seven of the alternatives were referred to as "action" alternatives, which proposed harvesting between zero and 1,414 acres of timber. Two of the alternatives were eliminated through detailed studies. Alternative Seven was referred to as a [**10] "No Timber Harvest" alternative and included some of the associated projects, but did not include the timber harvest project. Alternative One was the "No Action" alternative that is required by NEPA. In order to accomplish this goal, the Forest Service determined that some tree harvesting must be done.
The Forest Service concluded in the EA that the preferred method to accomplish the goals set out for the Bark Camp Area would include commercial timber harvest on approximately 700 acres. The Project also would include re-generation treatments, removing non-native white pines, balancing age classes, selective harvest to manage stand den-sity and species composition to promote diversity, thinning groups of trees and other circumscribed harvest techniques that benefit a wide variety of wildlife. The Forest Service determined that there was no need for wide scale timber har-vesting in the area immediately adjacent to the High Knob Tower, and that the area closest to High Knob Tower needed only single tree selection harvesting. As part of developing the EA, the Forest Service considered the potential impacts on water and fisheries in the wa-tersheds. The EA examined each of the waterways involved, [**11] including the then current gradient, Riffle stability rating, habitat units, cobble embeddedness and other factors that affect the health of each waterway. In addition, the EA discussed the effects of sedimentation on the health of a waterway. By using a sediment modeling formula, the Forest Service then estimated the amount of sediment that would be added to each waterway in the watershed by the various proposals set forth in the EA. The Forest Service commented that the sediment modeling formula utilized was the "worst case scenario" and was a highly unlikely outcome because this sediment modeling formula assumed that all the sediment from the Project would enter the waterways within the first year of the project. The Forest Service determined that each proposed action would fall within the percentage increase range to sedimentation that occurs naturally every year in the absence of human interference.
Even though the Forest Service determined that the increase in sedimentation would fall within the range that oc-curs naturally every year, it included a number of mitigation measures in an effort to minimize the sedimentation even further. Examples of these mitigation measures included: [**12] stabilization of disturbed soils through vegetation to prevent erosion and use of "filter strips" to trap sediment. [*371] The Forest Service also included associated projects such as the Large Woody Debris Program. The Large Woody Debris Program involved felling trees in particular waterways to provide a barrier against the downward flow of sediment to particular areas. The Forest Service also determined that the Large Woody Debris Program would help with fish habitat, increase nutrients in the water, create habitat complexity and promote stream diversity. The Forest Service concluded that the Large Woody Debris Program was to be utilized in only the areas that lacked this type of debris and would benefit from the incorporation of additional woody debris.
The EA also discussed the economic impacts of the Project, both qualitatively and quantitatively. The EA included a discussion of the costs and revenues of the project planning and timber harvest activities associated with each alterna-tive proposed by the Forest Service. The EA also concluded that the Project would at first negatively impact recreational use; however, the Project eventually would benefit recreational uses through, among [**13] other things, improvement of the view from the High Knob Tower and improvement of access for dispersed recreational pursuits. The EA also discussed several other economic impacts as well.
After this analysis, the EA concluded that the Project would not result in significant impacts. As a result, on May 21, 2001, Forest Supervisor William E. Damon, Jr. issued a Decision Notice and Finding of No Significant Impact, (hereinafter, "FONSI"), for the Bark Camp Timber Sales Project. The Decision Notice approved Alternative Eight, which included commercial timber harvesting and associated road system development, as well as eleven sale area im-provement projects. This Alternative also proposed the implementation of timber harvesting on approximately 700 acres utilizing clearcutting, 2-age modified shelterwood, ruffed grouse habitat improvement, crop tree release, group selection and single tree selection. This Decision Notice was published on May 24, 2001, which began the requisite 45-day ap-peal period.
Subsequent to the issuance of the EA and its adoption in a FONSI, a severe storm produced massive flooding in many areas of the Bark Camp Area. Because of the great magnitude of the flooding [**14] that occurred in the Bark Camp Area, the Forest Service instigated an investigation of the effects of this flooding on the proposed Project. As part of this investigation, the Forest Service enlisted the expertise of scientists at the Virginia Polytechnic Institute and State University, (hereinafter, "Virginia Tech"). The Forest Service, thus, placed the project on hold until the effects of the floods could be assessed. The Forest Service conducted this investigationover the next year. The Forest Service determined that one of the most significant impacts of the floods was several landslides in different areas of the Jefferson and Washington National Forests. This analysis involved areal reconnaissance of the entire area utilizing a helicopter and ground level reconnais-sance on foot; through these activities, the Forest Service mapped the occurrence of landslides in the watersheds. This reconnaissance revealed that some landslides had occurred in the watershed on the steeper slopes near Stony Creek; however, it also revealed no active landslides in the Bark Camp harvest area.
Dr. J.M. Rein Visser, a scientist at Virginia Tech, was consulted to further examine the issue of landslides [**15] in the Project area. Dr. Visser concluded that the logging and other activities that had taken place in the past had not increased the [*372] occurrence of landslides in that particular area. It was also determined that the floods affected the waterways as well, changing the characteristics of certain areas of the waterways. The Forest Service investigated the characteristics of the waterways, including measuring the large woody debris in the waterways, the large woody debris' placement and the water conditions. This investigation also inspected the sediment, cobble, boulders and debris movement in the waterways that was caused by the storm. After this investigation, the Forest Service determined that the floods created debris dams in certain areas, moved boulders, cre-ated large woody debris, scoured some areas and moved sediment. The Forest Service then compared the conditions of the streams in 1997, 2001 and 2002. In order to further ascertain the many impacts the floods possibly had on the Project area, the Forest Service then participated in an Advisory Committee. The Advisory Committee was made up of United States CongressmanRick Boucher and a member of his staff, the Mayor of the [**16] Town of Dungannon and representatives from the Forest Service, the Clinch Coalition, the Nature Conservancy, the U.S. Fish and Wildlife Service, the U.S. Army Corps of En-gineers and a local tourism organization. This Committee reviewed scientific data, presentations on the data collected by the Forest Service as well as independent scientists and developed and reviewed economic analysis reports and in-formation. The Advisory Committee made recommendations, which included the following: (1) to designate the Bark Camp Area as a National Recreational Area and (2) to discontinue the Large Woody Debris Program.
After this analysis process, the Forest Service's scientists reviewed all the data and evidence compiled both before and after the floods and concluded that (1) the streams in the Project area were still capable of supporting instream beneficial uses after the flood; (2) the sediment deposited in the streams during the flood did not individually or cumula-tively significantly impact the streams and their instream beneficial uses, including fish; (3) the Bark Camp Project did not significantly increase the potential for future debris slides; and (4) the increase in flood level that [**17] the Bark Camp Project would cause would be immeasurable and did not create a cumulative significant impact. In coming to these conclusions, the Forest Service discussed each stream and the impact on each stream individually.
As a result, on September 23, 2002, Forest Supervisor William E. Damon, Jr., issued an Amended Decision Notice and an Amended FONSI for the Bark Camp Project. This Decision Notice decided that the Forest Service should (1) drop the Large Woody Debris Program in accordance with the recommendations of the Advisory Committee as well as the additional survey work in the area, (2) refrain from harvesting in harvest units 2058-14, comprising 12 acres, and 2058-19, comprising 10 acres, in the Stony Creek drainage, and (3) refrain from harvesting harvest areas in the Stony Creek drainage that had a greater than moderate risk of debris slides. The Forest Service explained that it would con-tinue with the Project because the original reasons for the Project still remained: the lack of early successional habitat and the impact such deficiency had on the Forests' health and wildlife. Even though the Forest Service decided to amend the decision, it determined that the EA for [**18] the project did not have to be corrected, supplemented or revised. The Amended Decision and the Amended FONSI were published on September [*373] 26, 2002, which began the requisite 45-day appeal period. Soon after the Amended Decision and the Amended FONSI were issued, they were ap-pealed by the Clinch Coalition, the other Plaintiffs, and others. During preparation of their appeal, the Plaintiffs discov-ered an error in the Forest Service's calculations concerning the sediment delivery for Joel Branch Creek. The original calculation provided by the Forest Service was that the sediment increase to Joel Branch Creek would be 9.7%, which was very close to the 10% guideline set forth by the Forest Service in the EA. In fact, the projected sediment increase to Joel Branch Creek will be 15.5%, which is above the 10% guideline included in the EA. The Forest Service examined the impact of this error on its assessment, and the Forest Service concluded that even the corrected amount of 15.5% fell within the natural variance of sediment delivery in the waterway. As a result, the Forest Service concluded that the error in the Joel Branch Creek calculation did not affect the FONSI, and the Forest Service [**19] did not issue a supplemen-tal EA or Environmental Impact Statement, (hereinafter, "EIS").
The Plaintiffs then filed their action in this court.
The standard of review for a motion for summary judgment is well-settled; the court should grant summary judg-ment only when the pleadings, responses to discovery and record reveal that "there is no genuine issue as to any mate-rial fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991); Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for [**20] the non-moving party." Anderson, 477 U.S. at 248.
In considering a motion for summary judgment, the court must view the facts and the reasonable inferences to be drawn from those facts in the light most favorable to the party opposing the motion. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587-88; Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995); Miltier v. Beorn, 896 F.2d 848, 850 (4th Cir. 1990); Ross, 759 F.2d at 364-65; Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). In other words, the nonmoving party is entitled to have "the credibility of his evidence as forecast assumed." Miller, 913 F.2d at 1087 (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). Therefore, in considering cross motions for summary judgment, the court must consider the facts in the light most favorable to all parties.
The complaint in this case alleges that the Defendants' approval of the Bark Camp Timber Sale violates NEPA and APA. Specifically, the first claim of the complaint alleges that the Defendants violated [**21] NEPA by failing to sup-plement the EA in light of changed circumstances and significant new information. The second claim of the complaint alleges that the Defendants violated NEPA and APA by failure to adequately assess the impacts to water quality. The third claim of the complaint alleges that the Defendants violated NEPA by failing to adequately evaluate [*374] cumu-lative effects from past, present and reasonably foreseeable future actions on public and private lands. The fourth, and final, claim of the complaint alleges that the Defendants violated NFMA by not adequately analyzing the economic is-sues involved. The Plaintiff seeks a declaratory judgment that the Defendants violated NEPA, APA and NFMA by pre-paring an inadequate EA for the Bark Camp Timber Sale, by failing to supplement the EA in light of significant new information and changed circumstances and by failing to analyze adequately the economic impacts and net present benefits of this timber sale. The Plaintiffs also pray that this court will issue appropriate injunctive relief to insure that the Defendants comply with NEPA and NFMA, and specifically to insure that the Defendants take no further actions toward implementing this [**22] timber sale until they have complied with these laws. The Plaintiffs also wish this court to order that the Defendants' FONSI and Decision Notes regarding the project be vacated. Plaintiffs are also seek-ing the costs of this action, including reasonable attorneys' fees and expert witnesses' fees.
NEPA requires that an agency take a "hard look" at a proposal's environmental consequences before deciding to take action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 104 L. Ed. 2d 351, 109 S. Ct. 1835 (1989); Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir. 2002); Hughes River Watershed Conservancy, (hereinafter, Hughes River I), v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996). If it is determined that the agency took the requisite "hard look," this court must defer to the agency's decisions unless those decisions are arbitrary and capricious. Hodges, 300 F.3d at 436; Hughes River I, 81 F.3d at 443.
Additionally, "once [an agency] has taken such a look, the agency is not obligated to choose any particular course of action ... Moreover, if the agency has taken the required 'hard look,' [the court] [**23] must defer to it unless [the agency's] decisions were arbitrary or capricious." Hodges, 300 F.3d at 446 (internal citations omitted). As a result, an agency's decision that a particular action or actions will not have a significant impact, and that, therefore, no EIS is required will be upheld by this court unless such decision is arbitrary and capri-cious. Webb v. Gorsuch, 699 F.2d 157, 159 (4th Cir. 1983); Providence Rd. Cmty Ass'n v. EPA, 683 F.2d 80, 82 (4th Cir. 1982); Citizens against Refinery's Effects, Inc., v. EPA, 643 F.2d 178, 181-83 (4th Cir. 1981). In addition, an agency's decision whether a supplemental NEPA document is required under the circumstances is also reviewed under the arbitrary and capricious standard. See Marsh v. Or. Natural Resources Council, 490 U.S. 360, 374, 104 L. Ed. 2d 377, 109 S. Ct. 1851 (1989). NEPA requires that a federal agency follow certain procedures when an agency is implementing projects that will have an impact on the environment. Robertson, 490 U.S. at 350; Hughes River I, 81 F.3d at 443. Specifically, NEPA requires [**24] that an agency, in deciding how to implement such projects, must prepare a "detailed statement" of the impacts of such projects. 42 U.S.C.A. § 4332(2)(C) (West 2003). Such a statement is to include:
(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relation-ship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the [*375] proposed action should it be implemented."
42 U.S.C.A. § 4332(2)(C)(i)-(v) (West 2003). An agency can accomplish this detailed statement through an EA or an EIS. If there is uncertainty as to whether the proposed action will significantly impact the environment, then an agency is required to conduct an EA, and if the agency makes a FONSI, then an EIS is not required. See 40 C.F.R. § 1501.4(b), (c), (e) (2003).
A. The 10% "Threshold" and the Error in Calculation for [**25] Joel Branch Creek The Plaintiffs assert that the Forest Service arbitrarily contradicted its own EA in asserting that the level of sedi-ment that the Bark Camp Timber Sale will cause in Joel Branch Creek is inconsequential. (Plaintiffs' Memorandum in Support of Motion for Summary Judgment, (hereinafter, "Plaintiffs' Brief"), Docket Item No. 23, at 15.) The Plaintiffs assert that the Forest Service acknowledged that the streams in the Bark Camp Area are already loaded with sediment, which is a cause for concern. (Plaintiffs' Brief at 15.) The Plaintiffs argue that the Forest Service's EA acknowledged this concern and concluded that:
A 10% increase in sediment is within the range of natural variability of these systems, but without miti-gation, will serve to retard hydrologic recovery and achievement of the desired future condition of dy-namic equilibrium and aquatic ecological integrity.
(Plaintiffs' Brief at 16); (Administrative Record, (hereinafter, "A.R."), 283, at 81; AR, 174, at 8.) n1 The Plaintiffs fur-ther argue that the 10% increase in sediment should be construed as a "threshold," because of such language utilized in the EA. (Plaintiffs' Brief at 16.)
n1 When the court cites the Administrative Record in this case it will cite to it as follows: A.R., for Admin-istrative Record, followed by the tab number of the particular document cited, followed by the specific page number.
However, upon review of the EA as a whole, this court is of the opinion that the 10% "threshold" to which the Plaintiffs refer was never intended to have the meaning that the Plaintiffs attempt to assign to it. The Defendants ac-knowledge that the EA states that "inventory data for the stream channels in the Bark Camp area ... indicates that they currently have excess sediment. Based on this information, a sediment yield increase threshold of 10 percent was estab-lished." (A.R., 283, at 79.) Looking beyond this specific language utilized in one part of the EA, this court is able to ascertain that the Forest Service was not referring to the 10% number as a significance threshold, but that it was utiliz-ing this as a more of a guideline. In Table 17 of the EA, the Forest Service identified the percentage increase in sedi-ment yield over existing conditions in each stream that the different proposed alternatives would cause. (See A.R., 283, at 80.) This Table reveals that 10% is the highest approximate level of anticipated sediment change in any of the streams in the Project Area. (A.R., 283, at 80.) The Plaintiffs' argument that 10% was a significance threshold is rebutted by the fact [**27] that several of the alternatives entertained by the Forest Service in the EA would have resulted in a greater than 10% sediment yield gain in certain streams, and that the Forest Service concluded in the EA that "all alternatives would meet Forest Plan direction and project area conditions for water quality." (A.R., 283, at 83.) Therefore, if 10% was meant to be construed as a significance threshold, then many of the alternatives would not meet the Forest [*376] Plan direction because they would cause a greater than 10% sediment yield increase. However, the Forest Service, after a thorough investigation, concluded that these alternatives were still viable alternatives. Subsequent to the publication and adoption of the EA, the Forest Service was informed that its calculations for Joel Branch Creek were inaccurate, in that the sediment yield increase in Joel Branch Creek would be 15.5%, which is greater than the 10% "threshold" referred to in the EA. The Plaintiffs argue that the Forest Service's actions to proceed with the Bark Camp Timber Sale was arbitrary and capricious because that action ignored "the agency's own establish-ment of the 10% threshold in the EA." (Plaintiffs' Brief at 17.) [**28] Further, the Plaintiffs argue that if the Forest Service wants to revise its EA, rewrite its analysis of sediment impacts, and to set a new "threshold," then NEPA re-quires that the Forest Service make the allegedly new information and rewritten analysis available for public comment and for scientific review and criticism. (Plaintiff's Brief at 17.) Essentially, the Plaintiffs are arguing that the Forest Ser-vice erred when it determined that no other NEPA documentation was required.
A supplemental NEPA document, either an EA or an EIS, is required if new information "present[s] a seriously dif-ferent picture of the environmental impact of the proposed project from what was previously envisioned." Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (quoting Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58, 63 (4th Cir. 1990)). This court must utilize the arbitrary and capricious standard in reviewing an agency's decision whether new information requires a supplemental NEPA documention. See Marsh, 490 U.S. at 374. The in-quiry into whether new information requires NEPA supplemental documentation does not require additional NEPA documentation itself; [**29] the agency is required to take a requisite hard look at the issue. Hodges, 300 F.3d at 446.
This court notes that this argument of the Plaintiffs rests on the Plaintiffs' construction of the 10% increase in sedi-ment yield as a "threshold." However, as stated earlier, a reading of the EA as a whole does not support this conclusion. Even so, this court will now address the Plaintiffs' argument with regard to this matter.
When the Forest Service was notified of its error, the Forest Service instituted an investigation into the effect of this error on its Original FONSI. (A.R., 419.) The Forest Service subsequently determined that their initial calculation for Joel Branch Creek under Alternative 8 that indicated a 9.7% increase in sediment yield was, in fact, incorrect, and that the actual percentage increase in sediment yield for Joel Branch Creek was 15.5%. (A.R.,419, at 1.) The Forest Service then concluded that the 15.5% increase in sediment yield still fell within the natural variance of sediment delivery in Joel Branch Creek. (A.R., 419, at 3.) Based on the fact that the Forest Service's Original FONSI was based greatly on the Forest Service's determination that [**30] the increases caused by the Project would fall within the natural variance, the Forest Service determined that the error in the Joel Branch Creek calculation would not affect the FONSI because 15.5% was found to still be within the natural variance. (A.R., 419, at 3.) Because there was no change in the assess-ment of impacts, no new EA was necessary. See Hughes, 81 F.3d at 446. The Forest Service took the required "hard look" into whether the error with regard to the sediment yield increase in Joel Branch Creek would require further NEPA documentation. Therefore, because the Forest Service took the required [*377] "hard look" and determined that the additional sediment that would be delivered to Joel Branch Creek was still within the natural variance for that wa-terway, this court cannot find the actions of the Forest Service with regard to its decision not to develop a supplemental EA to be arbitrary and capricious.
This court further finds that the error regarding the percent of sediment increase for Joel Branch Creek under the specific alternative at issue in this case was harmless. Under the APA, this court is required to review final actions of agencies, including the [**31] Forest Service, under "the rule of prejudicial error." 5 U.S.C.A. § 706 (West 1996). "[A] mistake that has no bearing on the ultimate decision or causes no prejudice shall not be the basis for reversing an agency's determination." Sierra Club v. Slater, 120 F.3d 623, 637 (6th Cir. 1997) (citing Blackman v. Busey, 938 F.2d 659, 664 (6th Cir. 1991)). The Plaintiffs do not assert that the Forest Service's calculation of the total volume of sedi-ment that would be introduced into each stream under each alternative listed in Table 16 is incorrect. The Plaintiffs only assert that the error in calculation involved the percentage sediment yield increase of one stream in one alternative pre-sented in the EA. The Plaintiffs assert that this error would result in a significant impact. Given the fact that the Forest Service took the required "hard look" into the issue and the court's earlier finding that the 10% increase in sediment yield was only a guideline and not a threshold, this court finds that this mistake in calculation was not prejudicial and would not have a bearing on the ultimate decision; therefore, this error was harmless. [**32]
B. The EA's Economic Analysis
The Plaintiffs next assert that "in authorizing the Bark Camp timber sale, the Forest Service failed to account for the significant economic value associated withclean water, wildlife, recreation, scenery, non-timber forest products, and other non-priced 'ecosystem services' generated by the Bark Camp timber sale area in its existing condition." (Plaintiffs' Brief at 27-28.) In addition, the Plaintiffs assert that the Forest Service failed to account for the reduction in these eco-nomic values, which will result from logging and road building. (Plaintiffs' Brief at 28.) Therefore, the Plaintiffs argue that the economic analysis provided by the Forest Service in the EA used to justify the Bark Camp timber sale was in-adequate under NFMA and NEPA. (Plaintiffs' Brief at 28.) This claim of the Plaintiffs fails as well. The Plaintiffs rely on the following to support their contention that the EA's economic analysis was inadequate: the Multiple-Use Sustained-Yield Act, (hereinafter, "MUSYA"), the Forest and Rangeland Renewable Resources Planning Act, (hereinafter, "FRRRPA"), NFMA, NEPA, the regulations that implemented those statutes, the Forest Service's [**33] Manual and Handbook and case law. (Plaintiffs' Brief at 28-36.) This court will now address each of these in turn; however, as will be evident from the discussion of each, Plaintiffs' reliance on each is misplaced.
The Plaintiffs argue that, under MUSYA, the Forest Service is required to manage the National Forests for multiple use, and that MUSYA defines multiple use as "the management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people[.]" 16 U.S.C.A. § 531(West 2000). This language, however, is far from being a directive by Congress that the Forest Service must utilize [*378] a specific economic analysis, let alone the one Plaintiffs assert is required. Plaintiffs also assert that under 16 U.S.C. § § 529,1602 and1604 and 42 U.S.C. § 4332 Congress has mandated that the Forest Service provide an accounting of "all costs and all benefits before any particular tract of national forest land is allocated to a specific use such as a timber sale." (Plaintiffs' Brief at 31.) However, Plaintiffs [**34] misread 16 U.S.C. § 529. This provision requires only that the Forest Service give "due consideration" to the "relative values of the various resources in particular areas." 16 U.S.C.A. § 529 (West 2000). It says nothing about a particular methodology; therefore, it does not mandate the particular methodology that the Plaintiffs assert the Forest Service should utilize. The same is true of 16 U.S.C. § § 1602 and1604 and 42 U.S.C. § 4332. See 16 U.S.C.A. § § 1602,1604 (West 2000); 42 U.S.C.A. § 4332 (West 2003).
In addition, the particular sections of MUSYA that the Plaintiffs rely upon "contain the most general clauses and phrases" such that these provisions "can hardly be considered concrete limits upon agency discretion." Perkins v. Ber-gland, 608 F.2d 803, 806 (9th Cir. 1979.) MUSYA contains no specific mandate that the Forest Service utilize a par-ticular procedure to analyze the economic impacts of a proposed project and its alternatives. The language contained in MUSYA '"breathes discretion at every pore.'" Perkins, 608 F.2d at 806 [**35] (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975)). Plaintiffs rely upon Intermountain Forestry Indus. Ass'n v. Lyng, 683 F. Supp. 1330 (D. Wyo., 1998), to support their argument that the Forest Service's EA in this case did not provide an adequate economic analysis. (Plaintiffs' Brief at 31.) Although the court in Lyng stated that the Forest Service "must consider the relative values of all resources within the national forests," that court did not state nor did it imply that the Forest Service must conduct the particular quantitative method that Plaintiffs assert is required. See Lyng, 683 F. Supp. at 1337.
Therefore, MUSYA fails to support the contentions of the Plaintiffs that the Forest Service is required to utilize a specific economic analysis calculus, let alone the one set forth by the Plaintiffs in their Brief.
The Plaintiffs also attempt to utilize the provisions of FRRRPA to bolster their claim that the Forest Service's EA at issue in this case was inadequate. Particularly, the Plaintiffs assert that general congressional policy that is established in FRRRPA states that forests on [**36] national forest lands should be managed "to secure the maximum benefits of multiple sustained yield management ...." (Plaintiffs' Brief at 28, quoting 16 U.S.C.A. § 1601(d)(1) (West 2000 and Supp. 2004). FRRRPA does not support the Plaintiffs contentions, however.
In fact, as pointed out by the Defendants in their Brief, (Defendants' Brief at 50), the specific provisions of FRRRPA relied upon by the Plaintiffs are generally designed to provide certain reports to Congress "to help legislators understand when, and to what extent, budget requests were inadequate to fulfill policies approved by Congress." Nat'l Wildlife Fed'n v. United States, 200 U.S. App. D.C. 53, 626 F.2d 917, 927 and n.20 (D.C. Cir. 1980). FRRRPA contains no clear direction from Congress mandating that the Forest Service gather the information by any particular economic analysis method nor does FRRRPA mandate that the information be utilized in a certain [*379] way. See 16 U.S.C.A. § 1600 et seq (West 2000 and Supp. 2004). Plaintiffs rely on 16 U.S.C. § 1602, for support of their argument that the Forest Service must consider all costs and all benefits; [**37] however, that provision does not provide for a particular accounting method either. (Plaintiffs' Brief at 31); see 16 U.S.C.A. § 1602 (West 2000). In fact, that particular provision of the Code does not even apply to the development of an EA; it applies to the preparation of particular reports that must be provided to the President of the United States by the Secretary of Agriculture. 16 U.S.C.A. § 1602 (West 2000). Plaintiffs also rely upon 16 U.S.C. § 1604 and 42 U.S.C. § 4332, but those provisions do not provide for a particular methodology either. See 16 U.S.C.A. § 1604 (West 2000); 42 U.S.C.A. § 4332 (West 2003). In addition, FRRRPA does not even envision a particular project; it is concerned with the management of all of the National Forests. See 16 U.S.C.A. § 1600 et seq (West 2000 and Supp. 2004).
Consequently, the Plaintiffs' assertion that the EA did not provide an adequate economic analysis is not supported by the language of the FRRRPA.
The Plaintiffs also assert that the [**38] EA's environmental analysis is inadequate under NFMA. (Plaintiffs' Brief at 28.) Particularly, the Plaintiffs assert that "Congress has required a complete accounting of all costs and all benefits before any particular tract of national forest land is allocated to a specific use such as a timber sale." (Plaintiffs' Brief at 31.) In addition, the Plaintiffs cite to various provisions of NFMA, which mandate that the Forest Service develop forest planning regulations that utilize the various multiple uses of the national forests such as range, timber, watershed, wild-life, fish, and recreation, and that Forest Plans must consider '"the expected outputs for the planning periods, including appropriate marketable goods and services, as well as nonmarket items, such as recreation and wilderness use, wildlife and fish, protection and enhancement of soil, water, and air, and preservation of aesthetic and cultural resources val-ues.'" (Plaintiffs' Brief at 31-32.) However, Plaintiffs fail to point to any particular provision of NFMA that mandates a particular methodology, particularly a methodology that quantifies the impact of timber harvesting on non-timber val-ues. The reason they have [**39] not provided a particular section is that they are unable to do so, because NFMA does not provide for a particular accounting methodology.
Also, Plaintiffs have failed to check the legislative history of NFMA. The Senate Report concerning NFMA shows that Congress did not envision NFMA as requiring that a monetary value be assigned to non-timber resources because of the imprecision in attempting such an analysis:
In determining whether certain lands should be managed for timber products, only direct timber production costs and returns should be evaluated. Costs and benefits attributable to other resource values should be excluded because of the lack of certainty involved in assigning values to other benefits derived and the impact on multiple use goals.
See S. Rep. No. 94-893 (1976), reprinted in 1976 U.S.C.C.A.N. 6662, 6697.
Given the fact that NFMA does not provide for a particular preferred economic analysis, particularly the quantita-tive analysis asserted by the Plaintiffs, NFMA does not bolster the Plaintiffs' assertion that the EA's economic analysis was inadequate.
[*380] 4. NEPA
The Plaintiffs also rely on NEPA to support their argument that the Forest [**40] Service is required to quantify in monetary terms all the impacts from timber harvesting for each site-specific project. (Plaintiffs' Brief at 31, 32.) Specifi-cally, the Plaintiffs assert that "assigning monetary values to all economic impacts of a project also is a necessary step in meeting NEPA's mandate to give presently unquantified environmental amenities and values 'appropriate consideration in decision making.'" (Plaintiffs' Brief at 32, quoting 42 U.S.C. § 4332(2)(B).) Plaintiffs further state that if "there is incomplete information about non-priced benefits and costs," that regulations implementing NEPA mandate the Forest Service to obtain such information or evaluate such impacts based on "'theoretical approaches or research methods gen-erally accepted in the scientific community.'" (Plaintiffs' Brief at 33, quoting 40 C.F.R. § 1502.22.) However, the provi-sion cited by Plaintiffs actually states:
(a) If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essen-tial to a reasoned choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall [**41] include the information in the environmental impact statement.
(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known, the agency shall include within the environmental impact statement.
(1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency's evaluation of such impacts based upon theoretical approaches or research methods generally ac-cepted in the scientific community ...
40 C.F.R. § § 1502.22(a), 1502.22(b) (2003). This particular regulation section, like many of the others mentioned by the Plaintiffs, does not direct the Forest Service to use a particular economic accounting methodology, especially not the method asserted by Plaintiffs [**42] that would require quantification of all non-timber values.
As Defendants note in their Brief, the Plaintiffs ignore certain regulatory provisions that contradict their position. (Defendants' Brief at 57.) In particular, "for purposes of complying with [NEPA], the weighing of the merits and draw-backs of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations." 40 C.F.R. § 1502.23 (2003). See also Sierra Club v. Stamm, 507 F.2d 788, 794 (10th Cir. 1974) ("[NEPA] does not require the fixing of a dollar figure to either environmental losses or bene-fits."); Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974) (holding that NEPA does not require a "formal and mathematically expressed cost-benefit analysis" because such a calculation would be highly subjective and the final decision is not wholly a mathematical determination); Environmental Defense Fund, Inc. v. Costle, 439 F. Supp. 980, 993 (E.D.N.Y. 1977) ("We find no requirement in NEPA for the placement of dollar values on environmental impacts . [**43] ..."); Environmental Defense Fund v. Tenn. Valley Authority, [*381] 371 F. Supp. 1004, 1013 (E.D. Tenn. 1973), aff'd, 492 F.2d 466 (6th Cir. 1974) ("[NEPA does not require an agency] to compute in dollar figures every envi-ronmental loss. This section merely requires methods and procedures be developed for appropriate consideration of presently unquantified amenities, not the development of a procedure of mathematical equivalence as urged by plain-tiffs.") (emphasis in original). To the extent that NEPA does require an economic analysis of a proposed project and its alternatives, the Forest Service complied with such mandate when it included in the EA an economic analysis of the Bark Camp Timber Sale. (See A.R., 283 at 190-93.) Also included in the EA is a qualitative analysis of non-timber resources. (See A.R., 283 at 152-57); (see also A.R., 283 at 161-80.)
Based on the foregoing discussion this court is unable to find that the choice of methodology to determine the non-timber costs and benefits of the proposed project and its alternatives are arbitrary and capricious, and the Plaintiffs have failed to convince the court otherwise. Because [**44] NEPA does not require that all costs and benefits be reduced to monetary values, the Forest Service's economic analysis fully complies with NEPA.
5. The Forest Service Planning Regulations The Plaintiffs also assert that the Forest Service's own planning regulations provide clear direction to quantify in monetary terms all benefits and all costs of timber harvesting for Forest Plans as well as each site-specific project. (Plaintiff's Brief at 29, 30, 32, 34.) Specifically, the Plaintiffs rely upon numerous provisions of the regulations under 36 C.F.R. Part 219. (Plaintiffs' Brief at 32.) The Plaintiffs rely on 36 C.F.R. § 219.12(g) to support their claim that the Forest Service must consider all costs and all benefits, and that the Forest Service must utilize a quantitative methodology in considering the costs and benefits of any particular project. (Plaintiffs' Brief at 32.) However, this particular section was revised before the Revised EA was completed, 65 Fed. Reg. 67514, 67572 (Nov. 9, 2000), and the new regulation addressing economic analysis, 36 C.F.R. § 219.21 (2003), is different. The Revised EA was [**45] published in March 2001. (A.R., 283.) Neither the old regulation, 36 C.F.R § 219.12(g), nor the new regulation that replaced it, 36 C.F.R § 219.21, require the Forest Service to utilize a particular methodology in assessing the economic impacts of a proposed project, let alone the quanti-tative method that the Plaintiffs assert. See 36 C.F.R. § 219.12(g) (1982), revised by 65 Fed. Reg. 67514, 67572 (Nov. 9, 2000); 36 C.F.R. § 219.2i1 (2003). In fact, the new regulation states that the Forest Service may utilize "quantitative, qualitative, and participatory methods for gathering and analyzing data;'' it does not assert which method must be util-ized, however. 36 C.F.R. § 219.21(2003) (emphasis added). n2 Also, it is worth noting that the old regulation, 36 C.F.R. § 219.12(g), mentioned that monetary valuation is required "to the extent that monetary values can be as-signed,"36 C.F.R. § 219.12(g)(3)(ii), but that the new regulation, 36 C.F.R. § 219.21, does not even [**46] mention monetary valuation. See 36 C.F.R. § 219.21 (2003).
n2 The old regulation, § 219.12(g), even stated that the Forest Service could utilize "quantitative and quali-tative criteria when monetary values may not reasonably be assigned." 36 C.F.R. § 219.12(g)(3)(ii) (1982).
As a result, the qualitative evaluation of impacts utilized by the Forest Service is embraced within the regulations, and the [*382] Forest Service complied with the applicable regulations by utilizing a qualitative methodology to assess certain impacts. See 36 C.F.R. § 219.21 (2003).
6. The Forest Service's Manual and Handbook
The Plaintiffs also assert that the Forest Service's policies as set forth in the Forest Service's Manual and Handbook require that the Forest Service quantify non-priced benefits and costs. (Plaintiffs' Brief at 30, 31, 32, 33, 35.) The Plain-tiffs cite to various provisions of the Forest Service Manual and Handbook which reference [**47] economic efficiency analyses. First, the Plaintiffs cite to Forest Service Handbook, (hereinafter, "FSH"), 2409.18 § 13, stating that the "For-est Service's timber sale preparation procedures require economic efficiency analysis to include 'other economic costs and benefits that are not part of Forest Service monetary transactions.'" (Plaintiffs' Brief at 30.) The Plaintiffs attempt to utilize this provision to bolster their argument that 36 C.F.R. § 219.12(g)(3) requires the Forest Service to consider the direct and indirect benefits and costs of Forest Service management; however, as mentioned earlier, this particular regu-lation has been replaced and the new regulation is much different from the one relied upon by Plaintiffs. In this particular section of the Forest Service Handbook, it references two types of economic analyses. See FSH 2409.18 § 13. The first one discussed is a financial efficiency analysis, which "provides a comparison of anticipated costs and revenues that are part of Forest Service monetary transactions." FSH 2409.18 § 13(1). The second type of economic analysis is an economic efficiency analysis, which "uses the cost and revenue [**48] estimates included in the financial efficiency analysis, and adds other economic costs and benefits that are not part of Forest Service monetary transactions." FSH 2409.18 § 13(2). The Plaintiffs failed to read further into the discussion of an economic efficiency analysis, however. The FSH states that "[t] his analysis is not required ...." but may be appropriate under certain circumstances, which are not at issue in this case FSH 2409.18 § 13(2).
In addition, the Plaintiffs failed to recognize key provisions of the FSH, which discuss under what circumstances such an analysis should be done: "[an economic efficiency] analysis is not required, but may be useful and approrpiate especially where timber sales are designed primarily to achieve forest stewardship objectives [or where] substantial nonmarket costs and/or benefits are anticipated as a result of the project." FSH 2409.18 § 13(2). The Forest Service Manual, (hereinafter, "FSM"), also states that the "responsible line officer determines the scope, appropriate level, and complexity of economic and social analysis needed." FSM 1970.6. The Forest Service undertook the required financial efficiency analysis, (A.R., 283 [**49] at 192), and it qualitatively discussed other non-timber values. (A.R., 283 at 152-57, 161-80.)
As is shown by the excerpts quoted above from the FSH and the FSM, the broader economic efficiency analysis is not required, and such an analysis was not pursued for the Bark Camp Timber Sale. The Forest Service's Economist discussed the reasoning behind not preparing the broader economic efficiency analysis:
This analysis is optional and items included are those non-market outputs which the project has a detri-mental effect and "there is excess demand for that output." In the Bark Camp EA we disclose that there may be some displaced use of recreation in the Bark Camp area but there is not an excess demand for this (campgrounds are not [*383] filled near capacity) and the displaced use would most likely shift to other FS sites on the district. In most cases, this type of analysis is included in EIS's and other higher-level analysis such as the national (RPA) and Forest level (Forest Plans).
(A.R., 247 at 1.) Therefore, this court cannot say that this approach of the Forest Service was arbitrary and capricious simply because they utilized a methodology that Plaintiffs do not agree [**50] with, nor that the Forest Service's inter-pretations of its own regulations, manuals or handbooks are plainly erroneous. See U.S. v. Deaton, 332 F.3d 698, 709 (4th Cir. 2003) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945)).
Plaintiffs also rely on FSH 1909.17 § 11.1, in an attempt to support their contention that the Forest Service is under a duty to provide a complete accounting of all costs and all benefits before any particular tract of national forest land is allocated to a specific use such as a timber sale. (Plaintiffs' Brief at 31.) However, FSH 1909.17 § 11.1 only serves to provide a definition of the term "economic efficiency," it does not serve, as argued by the Plaintiffs, as a mandate. See FSH 1909.17 § 11.1
As a result, neither the Forest Service Manual nor the Forest Service Handbook support the contentions of the Plaintiffs.
7. Case Law Relied Upon by Plaintiffs
Plaintiffs first rely on the case of Sierra Club v. Sigler, 695 F.2d 957 (5th Cir. 1983), for the proposition that a NEPA document, like the EA, relied upon by the agency must "fully and accurately [**51] disclose the environmental, economic, and technical costs associated with the project." (Plaintiffs' Brief at 30, quoting Sierra Club, 695 F.2d at 978.) The Plaintiffs failed to read further, however, because Sierra Club also explains that, "NEPA therefore mandates at least a broad, informal cost-benefit analysis by federal agencies of the economic, technical, and environmental costs and benefits of a particular action; a formal monetary analysis is not required." Sierra Club, 695 F.2d at 978. Sierra Club does not stand for the proposition that a quantitative analysis is required; therefore, the Plaintiffs' reliance on that case for such a proposition is misplaced.
Next, Plaintiffs rely upon Intermountain Forestry Industry Ass'n v. Lyng, 683 F. Supp. 1330 (D. Wyo., 1988), for the proposition that "multiple-use sustained yield administration must consider the relative values of all resources within the national forests." (Plaintiffs' Brief at 31, citing Lyng, 683 F. Supp. at 1337.) However, that case does not stand for the proposition that a particular methodology, especially the methodology envisioned by the [**52] Plaintiffs, must be adhered to by the Forest Service. See generally Lyng, 683 F. Supp. at 1330-1345.
Finally, the Plaintiffs rely upon Hughes River I, 81 F.3d 437 (4th Cir. 1996), claiming that the fact that the Forest Service did not assign monetary values to non-priced benefits is '"so distorted as to impair fair consideration of the pro-ject's adverse environmental effects.'" (Plaintiffs' Brief at 35, quoting Hughes River I, 81 F.3d at 446.) However, the Forest Service's actions in this case do not equate to the actions of the Natural Resources Conservation Service and Army Corps of Engineers that were challenged in Hughes River I. In Hughes River I, the court found that the economic assumptions that were used to assess the economic benefits of a proposed dam project were distorted. Hughes River I, 81 F.3d at 446. However, the reason the court reached such a conclusion [*384] was because of the agencies' use of an inflated estimate of recreation benefits that accounted for a significant portion of the project's economic benefits, an action that was undertaken to possibly produce a positive benefit-to-cost ratio. [**53] Hughes River I, 81 F.3d at 447. The court did note in Hughes River I that both agencies complied with the mandate of the NEPA to balance the project's economic benefits against its environmental effects. Hughes River I, 81 F.3d at 447. What the court did not do, how-ever, was hold that a specific method must be utilized, particularly the method advocated by the Plaintiffs in this case. See generally Hughes River I, 81 F.3d at 437-441. Hughes River I does imply that the use of a quantitative economic benefits analysis and a qualitative environmental analysis is proper; the problem with the agencies' actions in that case was that the agencies had inflated the economic benefits valuation. Hughes River I, 81 F.3d at 447. As a result, Hughes River I does not lead this court to the conclusion that the Forest Service's methodology was flawed.
C. The EA's Analysis of Cumulative Impacts and the Original FONSI
The Plaintiffs assert that the EA's analysis of cumulative impacts was inadequate. (Plaintiffs' Brief at 23-25.) Spe-cifically, the Plaintiffs assert that the EA failed to provide an adequate assessment [**54] of the amount of past pollu-tion and reasonably foreseeable future pollution "because none of these analyses estimated the amount of sediment that was entering or would enter the area's streams due to these activities." (Plaintiffs' Brief at 24.) In addition, the Plaintiffs assert that the EA failed to "address or consider directly the issue of whether the impacts from past activities were sig-nificant, and, if so, whether the cumulative impacts of this timber sale in addition to these past impacts also would be significant." (Plaintiffs' Brief at 24-25.) After careful review of the record, this court finds that this assertion by the Plaintiffs is also without merit.
NEPA requires that certain procedures be followed when a federal agency undertakes a project that will affect the environment. Hughes River I, 81 F.3d at 443. Therefore, when a federal agency undertakes certain actions that will af-fect the environment, the agency "must prepare a detailed statement" of those impacts. 42 U.S.C.A. § 4332(2)(C) (West 2003). This detailed statement must include an evaluation of the environmental impact of the proposed action and any alternatives to the [**55] proposed action. 42 U.S.C.A. § 4332(2)(C) (West 2003). If uncertainty exists as to whether the proposed action will significantly impact the environment, then the agency must conduct an EA. 40 C.F.R. § 1501.4 (2003). If after the agency conducts the EA it makes a FONSI, then an EIS is not required. 40 C.F.R. § 1501.4 (2003). NEPA does not dictate that the agency reach a particular result, but that the agency must follow certain procedures be-fore reaching any result. Hughes River I, 81 F.3d at 443.
In evaluating an agency's decision-making process under NEPA, this court begins by determining whether the agency took a "hard look" at the proposed action's impacts upon the environment before deciding to issue a FONSI or proceed with an EIS. Hughes River I, 81 F.3d at 443. In doing this, the court must determine whether '"the adverse en-vironmental effects of the proposed action [have been] adequately identified and evaluated' prior to final decision mak-ing." Hodges, 300 F.3d at 445 (quoting Robertson, 490 U.S. at 350). If the agency has taken [**56] the required "hard look," "[this court] must defer to it unless [the agency's] [*385] decisions were arbitrary or capricious." Hodges, 300 F.3d at 446. An agency's consideration of cumulative impacts is part of the agency's required "hard look," therefore, such consideration is assessed under the same arbitrary and capricious standard. See Hodges, 330 F.3d at 446. In addi-tion, an agency's decision that a particular action or actions will not have a significant impact, and that, therefore, no EIS is required will be upheld by this court unless such decision is arbitrary and capricious. Providence Rd. Cmty Ass'n, 683 F.2d at 82; CARE, 643 F.2d at 181-83; Webb, 699 F.2d at 159. In addition, an agency is entitled to rely upon its experts when reaching conclusions about the impacts of proposed actions. Friends of Richards-Gebaur Airport v. Federal Aviation Admin., 251 F.3d 1178, 1189 (8th Cir. 2001) (holding that an agency does not act arbitrary or capricious when it relies on expert government agencies and expert consultants); Hughes River Conservancy v. Johnson, (hereinafter, Hughes River II), 165 F.3d 283, 288 (4th Cir. 1999). [**57] "An agency's decision to rely on an Environmental Assessment instead of preparing an Environmental Impact Statement is entitled to deference from the courts." Mt. Lookout-Mt. Nebo Property Protection Ass'n v. F.E.R.C., 143 F.3d 165, 172 (4th Cir. 1998) (citing South Carolina v. O'Leary, 64 F.3d 892, 896 (4th Cir. 1995); Providence Rd. Community Ass'n, 683 F.2d at 82). When considering the impacts a proposed project will have on the environment, the agency must consider and evaluate the cumulative impacts of the proposed project. 40 C.F.R. § 1508.25(c)(3) (2003). The regulations define cu-mulative impacts as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions ... Cumulative impacts can result from individu-ally minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7 (2003). The Fourth Circuit has mandated that when a court is assessing an agency's compliance with this duty, the court must ascer-tain whether there is an adequate basis [**58] for the cumulative impacts finding in the record. Roanoke River Basin Ass'n v. Hudson, 940 F.2d 58, 64 (4th Cir. 1991.) If me court determines that the agency's conclusions regarding cumu-lative impacts are adequate, then the court must find that the cumulative impacts analysis is not arbitrary and capricious. Hudson, 940 F.2d at 64.
This court finds that the EA at issue in this case examined the cumulative impacts of the Bark Camp Timber Sale, and that the Forest Service's conclusions regarding the cumulative impacts were adequate. As the Plaintiffs note in their brief, the EA openly discloses the existing condition of the streams in the Bark Camp Area. (A.R., 283 at 76-77.) In addition, the EA begins by providing a list of the past and reasonably foreseeable future actions in the Bark Camp Area that might contribute to the cumulative impacts. (A.R., 283 at 50-56.) The Forest Service included in the EA a discus-sion of the historical land use of the Bark Camp Area from the late 1700s to the present. (A.R., 283 at 50-94.) This analysis included a discussion of past timber management activities; special uses; temporary roads; mineral, oil and gas harvesting; [**59] recreational activities; wildlife and fisheries activities; and discernable activities on private lands within the watershed areas. (A.R., 283 at 50-56.) In addition, the Forest Service analyzed how these past activities con-tributed to the cumulative impacts on resources in the Bark Camp Area watershed. (A.R., 283 at 50-56.) Therefore, [*386] the Forest Service, contrary to the Plaintiffs' assertion, did look at past sources of pollution.
The Forest Service did not stop there either. The Forest Service also analyzed the existing conditions in the water-shed. (A.R., 283 at 74-83.) The Forest Service utilized the 1998 Virginia Water Quality Assessment Report 305(b) as part of its analysis. (A.R., 283 at 82-83.) n3 The Forest Service also evaluated the following attributes in each area stream in the Bark Camp Area: percent of cobble embeddedness; channel gradient percentage; water temperature; pool habitat; riffle stability index; residual pool volume; habitat type; habitat quality and size; and abundance of large woody debris. (A.R., 283 at 87, Table 19; 88, Table 20; 89; A.R., 174, at 2.) The Forest Service's evaluation showed that past logging activities resulted in cobble embeddedness, braiding [**60] and an abundance of run/glide habitat. (A.R., 283 at 74; A.R., 174 at 2.) In response to the current condition of the waterways in the watershed, which logically would include the impacts of past activities in the area because the present conditions of the waterways are the result of the past occurrences in and around those waterways, the Forest Service proposed certain mitigating factors to offset most of the impact associated with the proposed Project. (A.R., 283 at 31-46.) Consequently, the Forest Service recognized the need for further measures to minimize the environmental impacts of the proposed project and adopted those mitigation measures in the original Decision Notice, (A.R., 284 at 7), and the Amended Decision Notice, (A.R., 406 at 5.)
n3 Specifically, the 1998 Virginia Water Quality Assessment Report 305(b) based its findings on (1) a non-point source rating, which is "based on a weighted combination of influences from agriculture, urban sources and forestry," and (2) a National Heritage rating, which is "based on the presence of habitat for rare, threatened or endangered plants or animals or exemplary natural communities." (A.R., 283 at 83.) The Virginia Water Quality Assessment Report concluded that Stony Creek had a non-point source rating of Low and a Natural Heritage Rating of Medium. (A.R., 283 at 82.) In addition, the Virginia Water Quality Assessment concluded that Little Stony Creek had a non-point source rating of Medium and a Natural Heritage rating of High. (A.R., 283 at 82-83.) The ratings of Little Stony Creek are higher because the main stem of the Clinch River was in-cluded in the watershed unit boundary, and because of a higher percentage of agricultural and urban land use in that unit. (A.R., 283 at 83.)
After the Forest Service considered the past impacts on the streams in the watersheds in conjunction with the cur-rent conditions of the same streams, the Forest Service utilized a sediment model to establish the impact of the proposed Project on the streams. (A.R., 283 at 80; A.R., 173 (Bark Camp Timber Sale Sediment Model).) This model utilized a "worst case scenario" where it was assumed that all of the impacts to the area's streams would take place within the first year of the project. (A.R., 283 at 79.) In addition, the sediment model also assumed that all Forest Plan standards and guidelines and Virginia Best Management Practices for Forestry would be employed. (A.R., 283 at 79.) The Forest Ser-vice then determined that for the proposed project not to have a significant impact that the condition of the streams would have to remain within the range of natural variability. (See A.R., 283 at 78-83.) Utilizing the sediment model, the Forest Service determined that the additional sediment that would be added to the streams would not significantly im-pact those streams because the condition of the streams would remain within the range of natural variability. (A.R., 283 at 80-83.) [**62] As a result, the Forest Service considered the past, present and future effects of the proposed [*387] project before coming to the conclusion that the proposed project would not significantly impact the environment.
The Forest Service is not required, as implied by the Plaintiffs, to quantify the cumulative impacts. In fact the Council on Environmental Quality has provided guidance on assessing cumulative impacts, and it states:
if cause-and-effect relationships cannot be quantified, or if quantification is not needed to adequately characterize the consequences of each alternative, qualitative evaluation procedures can be used ... Of-ten, the analyst will be limited to qualitative evaluations of effects because cause-and-effect relationships are poorly understood or because few site-specific data are available.
(Exhibit E at 41 attached to the Defendants' Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, (hereinafter, "Defendants' Brief"), Docket Item No. 36 (emphasis added).) Therefore, NEPA does not require the Forest Service to use a particular methodology when assessing [**63] cumulative impacts. In addition, the Fourth Circuit has stated that "agencies are entitled to select their own methodology as long as that methodology is reasonable." Hughes River II, 165 F.3d at 289. Furthermore, the agency's expertise on how to measure environmental impacts is entitled to deference. See Hughes River II, 165 F.3d at 289-90.
This court finds, therefore, that the Forest Service engaged in the required "hard look" at the cumulative impacts of past, present and future activities in the area before it determined that the proposed project would not have a significant impact on the environment. Based on the discussion above, this court also finds that there is an adequate basis for the Forest Service's cumulative impacts finding in the record. In addition, since NEPA does not require that the Forest Ser-vice utilize a particular methodology in assessing the cumulative environmental impacts caused by a proposed project and the Forest Service took the requisite "hard look" at the cumulative impacts of past, present and future activities in the area, this court finds that the Plaintiffs are unable to prove that the Forest Service's evaluation [**64] of cumulative impacts was arbitrary and capricious.
Even given the information included above, the Plaintiffs assert that the Forest Service's Original FONSI for the Bark Camp Timber Sale was not supported by the record, and that substantial questions were raised as to whether the Bark Camp Timber Sale would have a significant impact on the area's resources, requiring an EIS. (Plaintiff's Brief at 25.) In an attempt to support their allegations that the Forest Service should have completed an EIS because its Original FONSI was arbitrary and capricious, the Plaintiffs rely upon the EA's recitation of the existing conditions of the water-ways in the watershed and the alleged 10% "threshold" that was supposedly set forth in the EA. (Plaintiffs' Brief at 25-26.) As stated above, the Forest Service did consider the cumulative impacts to the waterways in the watershed, includ-ing the current condition of the watershed; therefore, Plaintiffs fail to prove that the agency's determination of FONSI was arbitrary and capricious, which they are required to do. In addition, as stated above, the EA did not set the 10% increase in sediment yield as a significance threshold; therefore, the court need [**65] not address that issue here again because Plaintiffs' reliance on that argument is without merit. Given the EA's extensive discussion of the current conditions of the watershed, [*388] which obviously include any past activities in and around the watershed, the Forest Service's adoption of certain mitigation factors to reduce the impact to the environment in the Bark Camp Area, the Forest Service's use of scientific data and models in determining the extent of the impacts to the environment and the Forest Service's determination that the Project will not increase sediment beyond the level of natural variability, this court finds that the Forest Service took the requisite "hard look" in determining whether the impacts of the Project would be significant. This court also finds, based on the above discus-sion, that the Plaintiffs have failed to prove that the Original FONSI was arbitrary and capricious because they fail to raise substantial questions that a project may have a significant impact. See Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150 (9th Cir. 1998). Therefore, the Forest Service's Original FONSI was not arbitrary and capricious, and the Forest Service was not [**66] required to complete an EIS.
D. The Post-EA Floods and the Amended FONSI
The Plaintiffs also argue that the Forest Service's Amended FONSI that was issued after the floods was arbitrary and capricious. (Plaintiffs' Brief at 26-27.) To support this argument, the Plaintiffs argue that the floods "significantly altered [the] streams and watersheds, causing widespread erosion, multiple landslides, and massive sedimentation of these already-impaired streams." (Plaintiffs' Brief at 26.) The Plaintiffs also attempt to support this argument by refer-ring to the removal of the Large Woody Debris Project after the floods; this argument will be addressed in a separate section below. (Plaintiffs' Brief at 26.) However, this court finds that the new circumstances created by the post-EA floods were adequately and properly analyzed by the Forest Service, and that the Amended FONSI was well-reasoned and in full compliance with NEPA.
For new circumstances to trigger the need for a supplemental NEPA document, the new circumstances "'must pre-sent a seriously different picture of the environmental impact of the proposed project from what was previously envi-sioned."' Hughes River I, 81 F.3d at 443 [**67] (quoting Hickory Neighborhood Defense League v. Skinner, 893 F.2d 58, 63 (4th Cir. 1990)) (emphasis in original). An agency's inquiry into whether new facts or circumstances are signifi-cant enough to require a supplemental EA or EIS is fundamentally different from the decisions an agency is required to make during the initial EA or EIS process. See Hodges, 300 F.3d at 446. An agency is not required to produce a NEPA document nor follow the full NEPA process when it is making the preliminary decision as to whether a supplemental NEPA document is required as a result of the changed circumstances. See Hodges, 300 F.3d at 446; see also Price Rd. Neighborhood Ass'n v. U.S. Dep't. of Transportation, 113 F.3d 1505, 1509 (9th Cir. 1997) ("Aagency need not start the environmental process anew with every change in a project."). No supplemental EA or EIS is required when the changed action will not result in any new unconsidered environmental impacts. See Hodges, 300 F.3d at 448-49; Price Road, 113 F.3d at 1509-10; Piedmont Environmental Council v. United States Dep't. of Transportation, 159 F.Supp2d 260, 270, 281-83(W.D. Va. 2001.) [**68]
This court finds that the Forest Service took the mandated "hard look" before issuing the Amended FONSI. Soon after the floods that affected the Bark Camp Area, the Forest Service placed the Project on hold until it could assess the impacts that [*389] the floods had on the Bark Camp Area. In order to ascertain the impacts of the floods, the Forest Service conducted on-the-ground assessments and from-the-air assessments of the impacts of the floods in the Bark Camp Area. (A.R., 356, 358, 360, 387, 389, 392, 400.) During these assessments, the Forest Service made note of the general condition of the streams, including whether there had been significant landslides or additional sediment deliv-ered to the streams. (A.R., 356, 358, 360, 387, 389, 392, 400.) The assessment also included an examination of the sediment, cobble, boulders and debris movement of the streams in the Bark Camp Area. (A.R., 404 at 6-18.) The as-sessment determined that the storm and subsequent floods created debris dams, moved many boulders, created large woody debris, scoured some areas and moved sediment. (A.R., 404 at 6-18.) In addition, the Forest Service conducted detailed analyses of the waterways [**69] in 1997, 2001 and 2002, and compared the conditions of the streams at each of those time intervals. (A.R., 400.)
During the review process, the Forest Service also enlisted the assistance of scientists from Virginia Tech to exam-ine the landslides in the area and to ascertain the cause of the landslides. (A.R., 353.) By examining other areas of the National Forests, the scientists were able to ascertain that the landslides caused by the storms in the Bark Camp Area were not the result of logging activities or road construction that had taken place in those areas. (A.R., 353 at 6.)
The Forest Service also participated in an Advisory Committee to help with the reevaluation process. (A.R., 350, 352, 355, 357.) n4 This Advisory Committee, among other things, considered scientific data that was collected and viewed presentations on that data from the Forest Service as well as independent scientists. (A.R., 358, 368, 373, 374, 376, 377, 379, 380, 383, 389, 390, 391, 396.)
n4 This Advisory Committee included U.S. Congressman Rick Boucher and a member of his staff, the Mayor of the Town of Dungannon, representatives from the Forest Service, the Clinch Coalition, the Nature Conservancy, U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, and a local tourist organiza-tion. (A.R., 364.)
The Forest Service scientists then reviewed the data and evidence collected during the review by the Forest Service and the Advisory Committee both before and after the floods and concluded that (1) there had been no change in the streams' ability to support instream beneficial uses after the flood; (2) the sediment from the flood would not individu-ally or cumulatively significantly impact the streams and their instream beneficial uses, including fish; (3) the Bark Camp Project would not significantly impact the potential for future debris slides; and (4) the increase in flood levels that the Bark Camp Project could cause would be immeasurable and did not constitute a cumulative significant impact. (A.R., 404 at 1-3.) In doing this, the Forest Service provided an explanation of the condition of each waterway, the ef-fects the flood had on each waterway, how the current conditions affected the health and character of the waterway and the bases for their conclusion with respect to each stream. (A.R., 404 at 1-49.)
Based on the recommendations of the Forest Service scientists, the Forest Service issued an Amended FONSI, stat-ing that they would continue with the Project with minor changes. [**71] (A.R., 406.) The main reason for continuing with the project cited by the Forest Service was that the original reasons given for undertaking the project, the lack of early successional habitat, continued to exist even after the floods. (A.R., 406 at 6.) Given the preceding [*390] discus-sion, this court finds that the Forest Service conducted the requisite "hard look."
In addition, this court finds that the decision to continue with the project with minor changes is not arbitrary and capricious because that decision is supported by the record, the evidence that was gathered subsequent to the floods and the recommendations of scientists who studied the effects of the floods, and the decision was also arrived at after public input. Given the information set forth above, it is evident that the Forest Service thoroughly evaluated the condition of the watershed after the floods occurred. In addition, the Forest Service properly relied upon the findings of scientific experts from Virginia Tech who also studied the effects of the floods on the Bark Camp Area. Even though there were conflicting opinions, this court cannot find that the Forest Service's actions were arbitrary and capricious. An agency [**72] is "entitled to use its own meth-odology, unless it is irrational." Sierra Club v. Marita, 46 F.3d 606, 621 (7th Cir. 1995). The fact that certain experts disagree with the agency's conclusions does not render the agency's decision arbitrary and capricious. See Marita, 46 F.3d at 621. "When there is conflicting expert opinion, it is for the administrative agency and not the courts to resolve the conflict." Webb, 699 F.2d at 160.
The Plaintiffs requested that a hydrologist, Barry Sulkin, review the data concerning the impacts of the floods on the Bark Camp Area. (A.R., 368.) After reviewing the data concerning the impacts of the floods, Mr. Sulkin concluded that the Forest Service improperly estimated the amount of sediment delivery because its methodology was flawed. (A.R., 368 at 3-5.) Ultimately, Mr. Sulkin opined that the Forest Service needed to conduct further studies in the area, and that the Large Woody Debris Program was not needed. (A.R., 368 at 7.)
During the review process, the Forest Service considered and rejected Mr. Sulkin's report. (A.R., 370.) The Forest Service's scientists explained their methodology and why that [**73] methodology was not flawed. (A.R., 370.) Spe-cifically, the Forest Service rejected Mr. Sulkin's report because it was based on observations that followed one of the worst floods in the last 100 years, and that estimations based on extreme events are not reasonable. (A.R., 370 at 1.) The Forest Service further noted that their analysis included an observation of nearby watersheds in which timber harvest had occurred, and that the data collected revealed that the flood effects were no worse in those areas than in areas where no timber harvest had taken place. (A.R., 370 at 1-3.) Provided that the Forest Service dismissed the conclusions of Mr. Sulkin with detailed explanation, this court is not in the position to find its actions arbitrary and capricious.
The Forest Service also considered and rejected the report offered by Tom R. Davenport and Dr. Robert L. Krystock, who utilized a statistical model to ascertain the likelihood of the relationship between timber harvest and de-bris slides in the watershed. (A.R., 396.) Mr. Davenport and Dr. Krystock opined that there was a relationship between the two. (A.R., 396.) This report was reviewed by the Virginia Tech scientists and members [**74] of the statistics fac-ulty at Virginia Tech, who noted fatal flaws in the statistical analysis and the methods utilized by Mr. Davenport and Dr. Krystock. (A.R., 402.) As a result, this report was found to be unreliable. (A.R., 402.)
Eventhough, as evidenced in the preceding paragraphs, there were opinions that did not agree with the methodology or [*391] conclusions of the Forest Service with regard to sediment delivery, landslides and how the Project would affect the Bark Camp Area, the actions of the Forest Service are not rendered arbitrary and capricious because, as dis-cussed in detail above, the Forest Service based its conclusions on other scientific data that was collected.
Consequently, this court now finds that the Forest Service took the mandated "hard look" at the conditions of the watershed after the floods and determined, through research, scientific data and public input, that there were no new unconsidered environmental impacts; therefore, no further NEPA document was required. See Hodges, 300 F.3d at 448-49; Price Rd., 113 F.3d at 1509-10; Piedmont Environmental Council, 159 F.Supp2d at 270, 281-83. In addition, this court [**75] finds that the Forest Service reached its Amended FONSI after careful consideration of the data that was presented to it concerning the floods; therefore, the decision to issue an Amended FONSI and not to complete an EIS or a supplemental EA was not arbitrary and capricious.
E. Removal of the Large Woody Debris Project
Even though the Plaintiffs agree with the elimination of the Large Woody Debris Project, (Plaintiffs' Brief at 20), the Plaintiffs assert that the Forest Service arbitrarily eliminated the Large Woody Debris Project, contrary to the EA's reliance on this project for mitigation to support the Forest Service's Original FONSI. (Plaintiffs' Brief at 18.) The Plain-tiffs also assert that, despite the Forests Service's reliance on the Large Woody Debris Project as a mitigating factor, the Forest Service removed this program 18 months after the publication of the EA. (Plaintiffs' Brief at 19.) According to the Plaintiffs this action was violative of NEPA, "because it removed a primary basis for the finding of no significant impact to the area's streams, fish, and aquatic life, and it was arbitrary because the reason given for eliminating the pro-ject was not supported [**76] by the record." (Plaintiffs' Brief at 19-20.)
Upon review of the record, this court finds the claims of the Plaintiffs with regard to the removal of the Large Woody Debris Project to be without merit. First, the Plaintiffs assert that the Large Woody Debris Project is a "mitiga-tion measure." However, nowhere in the long, exhaustive list of mitigation measures in the EA does the Forest Service mention the Large Woody Debris Project as a mitigation measure. (A.R., 283 at 32-46.) In fact, the EA refers to the Large Woody Debris Project as an associate project, of which a total of eleven such projects were proposed in the EA. (A.R., 283 at 29.) In the list of mitigation factors, certain mitigation factors are listed to mitigate the impacts of the Large Woody Debris Project. (A.R., 283 at 44.) It makes no logical sense for the Forest Service to discuss mitigation measures of mitigation measures. Therefore, Plaintiffs' assertion that the Large Woody Debris Project is a mitigation measure is misplaced.
In addition, the removal of the Large Woody Debris Project took place after significant flooding in the Bark Camp Area. As stated above, the new circumstances created by the post-EA floods [**77] were fully and properly analyzed; therefore, the Forest Service took the requisite "hard look" before it issued its Amended FONSI. As a result, the Amended FONSI was not arbitrary and capricious and was in full compliance with NEPA. After the post-EA floods occurred, the Forest Service placed the Bark Camp Timber Sale project on hold until it could determine the impacts of the floods on the Project area. The Forest Service conducted [*392] a thorough investi-gation of the Bark Camp Area, including on-the-ground assessments and from-the-air assessments. (A.R., 356, 358, 360, 387, 389, 392, 400.) The Forest Service also engaged scientific experts from Virginia Tech to look at the occur-rence of landslides and the contributing factors of the landslides in the Bark Camp Area. (A.R., 353.) The Forest Service also looked at the placement and amount of debris in the waterways. (A.R., 400, 404.) Utilizing these factors as well as others, the Forest Service determined that its prior impacts analysis was unchanged, except that the Large Woody De-bris Project was no longer necessary because the floods and a large blow-down in 1998 had raised the amount of debris present in the waterways above the amount [**78] that would be added by the Large Woody Debris Project. (A.R., 406.) In effect, the floods implemented and completed the Large Woody Debris Project for the Forest Service; there-fore, there was no longer a need to add further debris to the Bark Camp Area's streams.
The Plaintiffs continue to assert, however, that the Large Woody Debris Project was a key factor in the Forest Ser-vice's Original FONSI. (Plaintiffs' Brief at 19.) The Plaintiffs assert that the Large Woody Debris Program was relied on in the water quality and fisheries analyses included in the EA. (Plaintiffs' Brief at 19.) In addition, the Plaintiffs assert that the Original FONSI "followed the EA in concluding that the adverse affects on spawning habitat, especially effec-tive spawning habitat, would be 'more than offset' by the large woody debris recruitment project." (Plaintiffs' Brief at 19.) The Plaintiffs wish this court to agree with them that the Forest Service hinged its Original FONSI almost entirely on the Large Woody Debris Project. (Plaintiffs' Brief at 19.) That is a conclusion that this court cannot make because many more factors, as evidenced in the discussion above, were considered before a FONSI was issued. [**79] As stated above, the Large Woody Debris Project was never intended to be a mitigation measure, but an associate project. Further, while it may be true that the Large Woody Debris Project was considered in coming to the conclusion that the Project would have no net effect on fisheries and only minimal impact on water quality, the Large Woody De-bris Project was only one factor among many that were considered. In fact, among other things, the many mitigation measures listed in the EA were identified as factors leading to the conclusion of no net effect. (A.R., 283, at 83.) As a result, the Plaintiffs' assertion that the Large Woody Debris Project was the "primary basis for the finding of no signifi-cant impact to the area's streams, fish, and aquatic life" is not supported by the record. (Plaintiffs' Brief at 19-20.) As stated in the previous section discussing the Amended FONSI that was issued after these floods, the Forest Service took the required "hard look" to determine whether the floods significantly changed the earlier impacts assessment. Because the Forest Service took this "hard look;" the Large Woody Debris Project was not a critical component in the FONSI; and the Forest Service [**80] adequately explained the reason the Large Woody Debris Project was no longer needed, the elimination of the Large Woody Debris Project was not arbitrary or capricious.
In conclusion, this court notes that the Project at issue in this litigation has now been under consideration since the late 1990s. Competing interests have been shown from various environmental groups such as the Clinch Coalition on the one hand and the Ruffed Grouse Society on the other hand. It is now time to bring this [*393] matter to a conclu-sion; however, in bringing this matter to a conclusion, this court notes that it is highly unlikely that a project of this magnitude, which raises various environmental interests, will be aggreeable to everyone.
After careful review of the record, it is so ORDERED that the Motion for Summary Judgment filed on behalf of the Defendants is hereby GRANTED; the Motion for Summary Judgment filed on behalf of the Intervenors is hereby GRANTED; and the Motion for Summary Judgment filed on behalf of the Plaintiffs is hereby DENIED. Therefore, the decision of the United States Forest Service is hereby UPHELD.
An Appropriate Order will [**81] be entered.
The clerk is directed to send certified copies of this Memorandum Opinion and accompanying Order to all counsel of record.
DATED: This 6th day of May, 2004.
In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]
In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]