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Fener v. Hunt

Citation: 28 ELR 20072
No. 97-0024-L, 971 F. Supp. 1025/(W.D. Va., 06/24/1997)

The court holds that a U.S. Forest Service timber sale on the George Washington National Forest in Virginia was not arbitrary and capricious and did not violate the National Forest Management Act (NFMA) or the National Environmental Policy Act (NEPA) as alleged by a neighboring landowner. The court first holds that the Forest Service gave sufficient consideration to the cumulative effects of the timber sale. The landowner does not identify the cumulative impacts that the Forest Service failed to review. The Forest Service's decision not to prepare an environmental impact statement for the sale is adequately supported by the record. And, the Forest Service has pointed to substantial evidence that a no action alternative would not meet the purposes and needs of the forest's management program. Moreover, the environmental assessment (EA) indicates that the timber sale will not be below cost. In addition, there is no indication in the record that the landowner offered to buy neighboring trees during the decision process that would warrant the Forest Service's attention. Last, the landowner points to no specific data indicating why the Forest Service's decision to proceed with even-aged harvesting methods was erroneous. The court next holds that a citizens' petition opposing the timber sale did not amount to the significant controversy required to stop the issuance of a finding of no significant impact for the sale's environmental impacts. The court then holds that the Forest Service's measures taken to alleviate the visual impact of the timber sale were sufficient to meet the Forest Service's visual quality objectives. Next, the court holds that the Forest Service properly addressed archeologically significant sites. It conducted a detailed archeological survey in the areas impacted by the timber sale and also considered information in the forest files, the National Register, and county census records. The court next holds that the Forest Service properly analyzed climatic considerations in compliance with NEPA. It investigated the landowner's concerns about winds and found that the distance between landowner's property and the cutting unit would create no adverse wind effect.

The court then rejects the landowner's claim that the Forest Service erroneously analyzed hydrological considerations of the timber sale. The EA contains an extensive analysis of the timber sale's effect on water quality and sedimentation. And, the EA points out the numerous measures the Forest Service is taking to address sedimentation and riparian concerns. The landowner also failed to support his claim that the proposed cutting will pose a pollution hazard to landowner's water. If, during the logging process, the landowner develops a takings claim for degradation to his water, he can raise the claim then. Further, the landowner misread the EA to state that no new roads would be built. Next, the court holds that the Forest Service complied with the land and resource management plan requirement that even-aged regeneration methods be separated by a minimum distance of 330 feet. The requirement does not apply to adjacent private property. The court next rejects the landowner's claim that the Forest Service erroneously analyzed ecological considerations. The Forest Service conducted a thorough analysis of wildlife issues, and no federal- or state-listed or proposed threatened or endangered species would be affected. And the fact that the landowner and the Forest Service have different opinions about how to achieve tree diversity does not support a conclusion that the Forest Service acted arbitrarily and capriciously in selecting its method of meeting the NFMA's requirement. The court then rejects the landowner's claim that the Forest Service failed to give good-faith consideration to the no action alternative. Finally, the court holds that the landowner failed to show a substantial likelihood of success on the merits, and, thus, the landowner's motion for preliminary injunction is denied.

Counsel for Plaintiff
Robert E. Fener
Law Offices of Robert E. Fener
1923 13th St. NW, Washington DC 20009
(202) 667-2602

Counsel for Defendants
Julie C. Dudley, Ass't U.S. Attorney
U.S. Attorney's Office
Thomas B. Mason Bldg.
105 Franklin Rd. SW, Ste. 1, Roanoke VA 24011
(540) 857-2250