Opinion
File No. 2:03-CV-211.
February 8, 2005
ORDER
This matter is before the Court on the parties' cross motions for summary judgment on the administrative record. In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Plaintiffs' motion for summary judgment (Docket #54) is DENIED. IT IS FURTHER ORDERED that Defendants' and Defendants-Intervenors' motions for summary judgment (Docket #57, 59) are GRANTED.
OPINION
Plaintiffs Northwoods Wilderness Recovery, Inc., Douglas Cornett, Frank Verito, and Heartwood (collectively "Plaintiffs") seek a declaratory judgment and injunctive relief against Defendants United States Department of Agriculture Forest Service and the Forest Service officials responsible for the Ottawa National Forest (collectively "Forest Service") in connection with the implementation of timber sales in Management Area 2.1 of the Ottawa National Forest. On April 9, 2004, the Court granted Defendants-Intervenors Lake States Lumber Association's and Lake States Resource Alliance's (collectively "Intervenors") motion to intervene. Before the Court are the parties cross motions for summary judgment on the administrative record.I.
The Ottawa National Forest is located in the western Upper Peninsula of Michigan and encompasses approximately one million acres of land. In 1986, pursuant to the National Forest Management Act of 1976, the Forest Service prepared a land and resource management plan for the Ottawa National Forest ("the Forest Plan"). In connection with the Forest Plan, the Forest Service prepared and received public comment upon an Environmental Impact Statement ("EIS") for the proposed Forest Plan. The EIS considered the environmental impacts of eight alternative forest plans. Ultimately, the Forest Service selected alternative six which emphasized uneven-aged forest management and provided a variety of vegetative conditions, recreation, and timber production. In addition, the Forest Plan divided the Ottawa National Forest into sixteen different management areas and developed criteria to reach the goal, or "desired future condition," for each management area.
At issue in this case is Management Area 2.1. The desired future condition for Management Area 2.1 is "a continuous canopy of northern hardwoods, interspersed with some aspen and softwoods." In order to attain the desired future condition in Management Area 2.1, the Forest Plan called for primarily uneven-aged management of northern hardwoods. Trees in an uneven-aged stand have a wide variety of ages from young to old. Selection harvest is used to attain an uneven-aged tree stand. Selection harvest requires foresters to select and harvest individual trees, as opposed to clear-cutting entire tree stands, within even-aged tree stands in order to encourage growth of a new generation of trees. The Forest Plan also provided for 2,800 acres of selective harvest and 1,440 acres of clear-cutting per year during the first decade of plan implementation in Management Area 2.1. During the second decade, the Forest Plan called for 4,750 acres of selective harvest and 1,130 acres of clear-cutting per year.
The Forest Plan was implemented through a series of site-specific timber sales. Before permitting a timber sale, the Forest Service prepares an Environmental Assessment and if necessary an additional EIS for each sale. The public is able to comment on the Environmental Assessment. For the projects in Management Area 2.1 at issue in this case, the Forest Service determined that the Environmental Assessments did not require preparation of a full EIS.
When the Forest Plan was actually implemented, the Forest Service allowed an average of 4,814 acres of annual selective harvest exceeding the Forest Plan projection for the first decade. In 2000, the Plaintiffs brought suit alleging that the Forest Service's approval of the Rolling Thunder timber sale violated the National Environmental Policy Act (NEPA), the National Forest Management Act, and the Administrative Procedure Act because the sale approved selection harvesting exceeding the projections in the Forest Plan. In Northwoods Wilderness Recovery, Inc. v. United States Forest Service, 323 F.3d 405 (6th Cir. 2003), the Sixth Circuit held that the Forest Service's approval of the Rolling Thunder sale was arbitrary and capricious because there had been no assessment of the impact of the level of selection harvesting during the first decade on various forest resources. Therefore, an order was entered enjoining the Rolling Thunder timber sale until the Forest Service complied with the NEPA.
During the same time period, the Forest Service allowed an average of 617 acres of annual clear-cut harvest, well below the projected amount of clear-cutting for the first decade.
After the Northwoods decision, the Forest Service responded by withdrawing the Rolling Thunder timber sale and conducting an analysis of the environmental effects of the increased rate of selective harvest in the Ottawa National Forest in the form of a Supplemental Information Report. The Supplemental Information Report incorporated the Ottawa National Forest 2002-2003 Monitoring and Evaluation Report and concluded that the increased rate of harvest during the first decade of the Forest Plan "did not have effects on the environment beyond those disclosed in the Forest Plan [Final Environmental Impact Statement] and Record of Decision." Vol. 1, Book 11, Tab S at 1.
In the present case, Plaintiffs attack the remaining eighteen timber sales in Management Area 2.1 under the NEPA and the Administrative Procedures Act. Plaintiffs contend the Sixth Circuit's order in Northwoods applies to all timber sales in Management Area 2.1. Plaintiffs argue that in order to comply with Northwoods and the NEPA, the Forest Service must prepare a supplemental EIS and allow for public comment before implementing the remaining selective harvest timber sales in Management Area 2.1. Before the Court are the parties' cross motions for summary judgment.
II.
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., mandates that for every major federal action significantly affecting the quality of the human environment, all federal agencies must include a detailed statement on the environmental impact of the proposed action. 42 U.S.C. § 4332(C)(i). An agency must prepare a supplement to an EIS if "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" arises after the EIS has been completed. 40 C.F.R. § 1502.9(c)(1)(ii). The Forest Service prepares a supplemental information report when they discover new information after completing an EIS. See Forest Service Handbook Directive 1909.15 § 18.1. The supplemental information report is used to document whether the new information requires the preparation of a supplemental EIS. See Friends of the Clearwater v. Dombeck, 222 F.3d 552, 555 (9th Cir. 2000). When new information arises, the federal agency must take a "hard look" to determine if the project's environmental impacts will be significantly different from those projected in the original EIS thus necessitating a supplemental EIS. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374 (1989).
The Administrative Procedure Act provides the standard of review for a challenge to an agency action brought under NEPA. The act provides that the Court's review of agency action is limited to whether the agency acted in a manner that was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). This is a narrow and highly deferential standard of review in which the agency is provided with a presumption that they acted in accordance with the law and the reviewing court must not substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc v. Volpe, 401 U.S. 402, 415-17 (1971), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977). "The role of courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious." Communities, Inc. v. Busey, 956 F.2d 619, 623 (6th Cir. 1992) (quoting Baltimore Gas Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98 (1983)). A decision is arbitrary and capricious
if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.Henry Ford Health System v. Shalala, 233 F.3d 907, 911 (6th Cir. 2000) (quoting Motor Vehicle Mfrs. Assn. v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983)).
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). An issue concerning a material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "On summary judgment, all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the parties opposing the motion." Hanover Ins. Co. v. American Engineering Co., 33 F.3d 727, 730 (6th Cir. 1994) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-88 (1986)). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to the party's case for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.
Before addressing the merits of the Plaintiffs' claim, the Court must determine if the Plaintiffs' challenge to the Management Area 2.1 timber sales is properly before the Court. The Forest Service contends that the Plaintiffs are barred from challenging twelve projects because they did not exhaust their administrative remedies by bringing an administrative appeal prior to filing this suit. See 7 U.S.C. § 6912(e) ("a person shall exhaust all administrative appeal procedures . . . before the person may bring an action in a court of competent jurisdiction"). In addition, the Supreme Court recently held that, "[p]ersons challenging an agency's compliance with NEPA must `structure their participation so that it . . . alerts the agency to the [parties'] position and contentions,' in order to allow the agency to give the issue meaningful consideration." Dept. of Transp. v. Public Citizen, 124 S. Ct. 2204, 2213 (2004) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council Inc., 435 U.S. 519, 553 (1978)).
The Forest Service alleges that Plaintiffs failed to raise their excessive selective harvesting objection in public comment on the Environmental Assessment or in an administrative appeal for twelve timber sale projects. Plaintiffs themselves admit that they only filed administrative appeals for six projects: Bonny Lake, Jake Creek, Slate, Gaylord Lakes, Prospector, and Deadstream McLellan. Plaintiffs assert that they are following the Supreme Court's guidance on challenging a Forest Plan under Ohio Forestry Assoc. v. Sierra Club, 523 U.S. 726 (1998). Ohio Forestry involved a Sierra Club challenge to the lawfulness of a forest plan for the Wayne National Forest. Ohio Forestry, 523 U.S. at 728. The Supreme Court concluded that the controversy was not ripe for judicial review because the forest plan had not been implemented through specific timber sales and the Sierra Club failed to demonstrate the necessary hardship if judicial review was withheld. Id. at 733-34. In addressing the lack of hardship to the parties, the Court rejected the Sierra Club's argument that a single legal challenge against the forest plan would be more cost efficient than challenging each timber sale implementing the plan. Id. at 734-35. This argument was rejected because the Sierra Club failed to show how a victory on one timber project based on the forest plan's unlawfulness would not effectively preclude all other projects. Id. Plaintiffs contend that this reasoning permits their current challenge to all eighteen timber sales in Management Area 2.1.
Plaintiffs overstate the holding of Ohio Forestry. Ohio Forestry does not address the exhaustion of administrative remedies requirement in 7 U.S.C. § 6912(e). Further, the dicta cited by the Plaintiffs is not applicable to this case because it addresses the unlawfulness of a forest plan, an issue that is not before the Court. Allowing Plaintiffs to challenge the twelve timber sales that were not subject to administrative appeals would circumvent the process mandated by § 6912(e) and would prevent the agency from considering the public's concerns. Public Citizen, 124 S. Ct. at 2213-14; see also McKart v. United States, 395 U.S. 185, 193-94 (1969) (stating that doctrine of exhaustion of remedies allows an administrative agency to apply its special expertise and develop the factual record without premature judicial intervention). Accordingly, the Court holds that Plaintiffs are barred from challenging the twelve projects for which they did not exhaust their administrative remedies prior to filing suit in federal court. Nevertheless, Plaintiffs have properly exhausted their administrative remedies as to six timber sales in Management Area 2.1. Therefore, the matter can proceed to the merits of the case based on the six properly appealed timber sales.
IV.
The Court now turns to Plaintiffs principal argument, whether the Sixth Circuit's Northwoods' decision requires the Forest Service to prepare a supplemental EIS and allow for public comment prior to proceeding with the remaining selective harvest timber sales in Management Area 2.1. Plaintiffs contend that Northwoods is not limited to the Rolling Thunder timber sale at issue in that case, but rather, it applies to all timber sales in Management Area 2.1. In support, Plaintiffs rely upon the Sixth Circuit's statement "[t]he Forest Service never demonstrated . . . that the environmental impacts of the current level of selection logging ever was analyzed. . . ." Northwoods, 323 F.3d at 411. In addition, Plaintiffs point to the court's order that "meaningful analysis and public comment were required prior to the approval of additional selection logging." Id. at 412. Plaintiffs argue that "additional" should be construed broadly to mean any selective logging. Therefore, according to Plaintiffs, because the excessive logging analyzed in Northwoods was not consistent with the acreage projections in the Forest Plan, any additional selective harvest cannot occur until the effects of the new logging pattern in Management Area 2.1 is analyzed and submitted to public comment.
The Forest Service, on the other hand, argues that Northwoods does not have such wide-ranging applicability and is confined only to the unique facts underlying that case. The Forest Service characterizes Northwoods as applying to additional selective logging beyond the acreage specified in the Forest Plan and not prohibiting all selective logging in Management Area 2.1. Thus, when the Sixth Circuit ordered that "meaningful analysis and public comment were required prior to the approval of additional selection logging," Id., the Forest Service construed the term "additional" to mean "more selective harvest than had been analyzed in the [Forest Plan] EIS." Defendant's Response Brief at 14. Further, the Forest Service argues they have complied with Northwoods by reducing the amount of selective harvest in Management Area 2.1 so that it is within the Forest Plan limitations. In support, Defendants assert that the Forest Plan originally called for 4,750 acres of annual selective harvest in the second decade, however, they are only conducting an average of 2,557 acres of annual selective harvest during the second decade. Vol. 1, Book 11, Tab S at 70. The Forest Service also projects that at the end of the second decade, selective harvest will be below the total acreage analyzed in the Forest Plan for the entire 20-year period. Vol. 1, Book 10, Tab Q at 370. ("If any additional projects are planned in MA 2.1 prior to the Forest Plan revision being completed, the total selection/improvement cut acres for the management area will not exceed the total 20-year projections.").
The Court has considered each party's interpretation of Northwoods and holds that Northwoods does not bar the six timber sales at issue in this case. Northwoods only considered whether the approval of the Rolling Thunder timber sale was arbitrary and capricious, it did not consider all selective harvest timber sales in Management Area 2.1. Northwoods, 323 F.3d at 406-07. Further, the court only evaluated the level of selective harvest in the first decade of the Forest Plan. Id. at 407-08. The present case arises in the second decade of the Forest Plan.
Although it is not completely clear, Northwoods has three distinct holdings. First, the court determined that the acreage projections in the Forest Plan were limitations on the amount of logging to be conducted in Management Area 2.1. Id. at 410. Second, the court held that the approval of the Rolling Thunder timber sale was not consistent with the first decade acreage projections in the Forest Plan. Id. at 411-12. Finally, the court concluded that a sentence in the Forest Plan allowing unlimited selection harvesting of sugar maple trees did not exempt sugar maple selection harvest from the acreage limitations in the Forest Plan because the Forest Service had not engaged in any analysis of the effect of unlimited sugar maple selective harvest. Id. at 411.
Plaintiffs' reading of Northwoods is too broad. Specifically, the court's reference to "additional selection logging" does not mean that all selection logging must cease until "meaningful analysis and public comment" is conducted. Id. at 412. The court did not invalidate the entire Forest Plan, therefore the acreage projections contained in the Forest Plan are still valid, and consequently, selection harvest that is below the acreage projections is valid. Because the acreage projections are still valid, the reference to "additional selection harvest" can only refer to logging that would exceed the Forest Plan acreage projections. If the Forest Service were to propose a timber sale that would exceed those projections, there would have to be "meaningful analysis and public comment" prior to their approval. Id. at 412. That is not the situation before this Court. The Sixth Circuit invalidated the Rolling Thunder timber sale because it exceeded the acreage limitations in the first decade, thus it was "additional selection harvest" not contemplated by the Forest Plan. That is not the case here. Each of the proposed timber sales is within the acreage limitations set forth in the Forest Plan for the second decade. Therefore, the timber sales are not "additional" and do not implicate Northwoods.
Moreover, Plaintiffs' reliance on the Sixth Circuit's statement that "[t]he Forest Service never demonstrated . . . that the environmental impacts of the current level of selection logging ever was analyzed . . .," Id. at 411, is misplaced. When read in context, this sentence refers to the Sixth Circuit's rejection of the Forest Service's argument that the Forest Plan permitted unlimited sugar maple harvest. Id. In addition, Plaintiffs' reliance on this sentence is misguided because the Sixth Circuit did not have the benefit of reviewing the Supplemental Information Report and the 2002-03 Monitoring and Evaluation Report which were prepared after the Northwoods decision. These reports contained analysis of the increased level of logging during the first decade. See Vol. 1, Book 11, Tab S.
After Northwoods, the Forest Service removed the Rolling Thunder timber sale and, consistent with the Sixth Circuit's decision, treated the acreage projections as limitations. See Vol. 1, Book 11, Tab S at 6 ("Prior to the March 2003 ruling the Ottawa did not view [acreage projections] as limitations, however, following the ruling they have been and will be considered as such through the life of the Forest Plan."). Accordingly, the Forest Service tailored their remaining timber sales so that they were within the acreage limitations. See Id. ("Based on [ Northwoods] the Ottawa National Forest will ensure that the projections contained in the Plan for two decades of implementation are not exceeded.") (emphasis in original). As stated previously, the Forest Plan called for 4,750 acres of annual selection harvest in the second decade, but the Forest Service has implemented an average of 2,557 annual selection harvest. Id. at 70. Further, the Forest Service estimates that only 92% of the projected selection harvest during the 20-year Forest Plan will be conducted. Vol. 1, Book 10, Tab Q6 at 370. Because the timber sale projects involved in this case do not involve "additional selection harvest" above the acreage specified in the Forest Plan, Northwoods is not implicated and does not bar the Forest Service from implementing the sales.
V.
Although Northwoods does not bar the proposed selection harvest timber sales, the Court still must consider whether the Forest Service acted arbitrarily or capriciously in proposing the six selection harvest timber sales without issuing a supplemental EIS and allowing for public comment pursuant to NEPA. See Marsh, 490 U.S. at 375-76; 40 C.F.R. 1502.9(c)(1). After the Sixth Circuit's ruling in Northwoods, the Forest Service recognized that they possessed "new information" regarding selection harvest levels in Management Area 2.1 that could require the preparation of a supplemental EIS. Vol. 1, Book 11, Tab S at 1. Accordingly, the Forest Service prepared the Supplemental Information Report assessing whether the increased rate of selection harvest during the first decade of the Forest Plan had effects beyond those disclosed in the original EIS such that a supplemental EIS would need to be prepared. Id. The Forest Service determined that the increased rate of harvest, "did not have unforeseen impacts to the environment," and did not require the preparation of a supplemental EIS. Id. It is the Court's task to determine whether the Forest Service took the required "hard look" at the new information before deciding not to prepare a supplemental EIS for the Ottawa National Forest. Marsh, 490 U.S. at 373-74. The Court will set aside the Forest Service's determination that the EIS need not be supplemented only if the decision was arbitrary and capricious. Id. at 375-76.
Based upon the record, the Court concludes that the Forest Service did not act arbitrarily or capriciously in deciding not to supplement the Forest Plan EIS. Consequently, the Court holds that the Forest Service took the required "hard look" at the new information before it and complied with NEPA prior to going forward with the six selective harvest timber sales. The Supplemental Information Report was prepared in response to the Northwoods decision and specifically addressed whether the increased rate of selection harvest during the first decade of Forest Plan implementation had environmental effects beyond those disclosed in the EIS. See Vol. 1, Book 11, Tab S at 1. Further, the Supplemental Information Report incorporated the exhaustive analysis contained in the 2002-2003 Monitoring and Evaluation Report.
The Monitoring and Evaluation Report analyzed the effects of the increased rate of selection harvest on a variety of forest resources. Specifically, the Forest Service analyzed the effect of the selection harvest on animal species listed as endangered or threatened by the State of Michigan or nationwide under the Endangered Species Act. See Id. at 14-21. The Monitoring and Evaluation Report also analyzed the effect on Management Indicator Species and Regional Forester Sensitive Species. Management Indicator Species "are animals or plants selected . . . as representatives of Forest management's effect on fish and wildlife habitat." Vol. 5, Book 2, Tab D at III-28. The Forest Service uses Management Indicator Species "to monitor the welfare of a large number of species and habitat types." Vol. 1, Book 10, Tab Q2 at 209. Regional Forester's Sensitive Species are species which are given special management consideration to ensure their continued viability on the national forests. See Regional Forester's Sensitive Species List, available at http://www.fs.fed.us/r5/projects/sensitive-species/. The Forest Service determined that the increased rate of selection harvest during the first decade did not have any environmental effects, beyond those disclosed in the EIS, on any of the species analyzed. Vol. 1, Book 11, Tab S at 1, 71 ("The types and levels of harvest that have been emphasized, even though at an increased rate during the 1st decade of Plan implementation, will serve to improve habitats for many species on the forest."). A few examples demonstrate the Forest Service's analysis and conclusion.
Gray wolf population did not suffer any detrimental effect from the increased rate of selection harvest, and in fact the population had increased such that the wolf was reclassified from "endangered" to "threatened." Id. at 14. Habitat suitability of the red-shouldered hawk, a Regional Forester's Sensitive Species, was not reduced by the increased pace of selection harvest. Id. at 20. Further, Management indicator species such as black bear, whitetail deer, American bittern, ruffed grouse, northern goshawk, and barred owl were not negatively affected by the increased rate of selection harvest and in many cases the Forest Service observed positive effects on the species. See Id. at 23-24 (black bear population has not been negatively effected by level of selection harvest), 24-25 (whitetail deer population viability is not detrimentally affected by Forest Plan implementation), 28-29 (American bittern have an abundant habitat ensuring that species is not effected by increased selection harvest rate), 30 (ruffed grouse: "[i]mplementation of the Forest Plan has aided this species through regenerating the over-mature aspen stands."), 35 (northern goshawk habitat was not negatively affected during first decade of the Forest Plan. Rate of selection harvest may have had positive impact on habitat), and 37 (barred owl habitat was not negatively affected during first decade of the Forest Plan. Rate of selection harvest may have had positive impact on habitat).
Based upon a review of the record, the Court is satisfied that the Forest Service thoroughly analyzed and evaluated the impact of the increased rate of selection harvest during the first decade of the Forest Plan and came to a reasoned decision in the Supplemental Information Report that a supplemental EIS was not necessary. Accordingly, the Court will not set aside the Forest Service's decision. See Marsh, 490 U.S. at 377-78.
Plaintiffs also contend that the Forest Service failed to disclose the cumulative impact of the increased selection harvest on Management Area 2.1. "`Cumulative impact' is 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. . . ." 40 C.F.R. § 1508.7. Cumulative impacts must be disclosed in an EIS. 42 U.S.C. § 4332. The Forest Service responds to Plaintiffs' allegation by arguing that the Forest Plan EIS contained extensive analysis of the cumulative impact on numerous forest resources from the proposed level of timber harvesting. See Vol. 5, Book 2, Tab D at IV-40 to IV-69. Further, the Forest Service contends that because the Supplemental Information Report found that the increased selection harvest during the first decade did not have an unforeseen impact on the Ottawa National Forest, the cumulative impact analysis in the EIS is still valid and a supplemental cumulative impact analysis is not necessary.
The Forest Service's argument is well-taken. A supplemental EIS must be prepared only upon a finding that new circumstances or information relevant to environmental concerns has arisen. 40 C.F.R. § 1502.9(c)(1)(ii). The Forest Service analyzed the increased rate of selection harvest in the Supplemental Information Report and reasonably concluded that a supplemental EIS was not necessary. Vol. 1, Book 11, Tab S at 1. Because the Court previously found that the Forest Service's decision in the Supplemental Information Report was not arbitrary or capricious, the cumulative impact analysis contained in the Forest Plan EIS is still valid. Plaintiffs have not asserted any error in the cumulative impact analysis of the Forest Plan EIS. Therefore, the Court rejects Plaintiffs' claim that the Forest Service failed to assess cumulative impacts.
The Court also notes that many of the individual timber sale Environmental Assessments contain a cumulative impact analysis. See e.g., Vol. 1, Book 10, Tab Q at 164-68 (Prospector Environmental Assessment); Vol. 1, Book 11, Tab R6 at 425-28 (Deadstream McLellan Environmental Assessment) ("Although the Forest has exceeded the 10 year acreage limitations for selection cutting, this has not resulted in environmental effects above and beyond those originally expected under the current Forest Plan.")
Finally, Plaintiffs argue the Forest Service must allow for public comment prior to continuing the six selection harvest timber sales. This argument appears to be based on Plaintiffs' view that Northwoods mandates a period of public comment prior to continuing any selection harvest in Management Area 2.1. In light of the Court's holding that Northwoods is not applicable to this case, Plaintiffs' request for public comment is in error. To the extent that Plaintiffs' request for public comment is based upon their view that NEPA mandates public comment prior to federal agency action, it is also meritless. NEPA does not require federal agencies to allow public comment on a supplemental information report. See Friends of the Clearwater, 222 F.3d at 559-60 ("Although NEPA requires agencies to allow the public to participate in the preparation of an SEIS, there is no such requirement for the decision whether to prepare an SEIS.") (emphasis in original). Accordingly, the Court rejects Plaintiffs' argument that the Forest Service must allow for public comment prior to implementing the remaining timber sales.
Although the Plaintiffs may disagree with the conclusions reached by the Forest Service in their Supplemental Information Report, the Court is not in the position to second guess the decision of the Forest Service. See Volpe, 401 U.S. at 416 ("The court is not empowered to substitute its judgment for that of the agency."); Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. at 558 (holding that judicial review of an administrative decision pursuant to NEPA must insure "a fully informed and well-considered decision" not necessarily a decision that a judge would have reached if they were part of the agency). Rather, the Court is in the position of ensuring that the Forest Service "adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas Electric, Co., 462 U.S. at 97-98. The Court is satisfied that the Forest Service engaged in an adequate analysis of the environmental impact of its proposed timber sales.
VI.
Based upon the Court's review of the administrative record before it, the Court holds that the Forest Service did not act arbitrarily or capriciously and adequately considered the impact of the increased rate of selection harvest in Management Area 2.1. Accordingly, Plaintiffs' motion for summary judgment is denied and Defendants' motion for summary judgment is granted. An order will be entered consistent with this opinion.