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Sierra Club v. Cargill

ELR Citation: 24 ELR 20717
Nos. Nos. 92-1277, -1316, 11 F.3d 1545/(10th Cir., 12/14/1993) Remanded for dissolution of injunction

The court holds that the U.S. Forest Service (Forest Service) did not abuse its discretion in finding that a change from a seven-year regeneration standard to a five-year standard did not effect a significant change in its land and resource management plan for the Bighorn National Forest in Wyoming, and the court orders the district court to dissolve an injunction forbidding the Forest Service to offer the land for harvest. The court first holds that the district court failed to apply the proper standard of review. The Forest Service's determination that the change was not significant is entitled to deference and may only be overturned if arbitrary and capricious. The court holds that the Forest Service did not act arbitrarily or capriciously, because it completed an environmental assessment reconsidering the Bighorn timber plan and the assessment's conclusion that there was no significant change was based primarily on the Forest Service's finding that relatively few acres are affected by the change and the remaining acreage has largely the same character and location as that originally included in the timber base. The court next holds that although the Forest Service has determined that a change in the "allowable sale quantity" (ASQ) used in the plan is necessary and that this change will be significant and thus require the Forest Service to comply with special procedures set forth in 36 C.F.R. part 219, making this change does not require the Forest Service to cease making nonsignificant changes, such as a change to the five-year regeneration standard. The court also holds that the Forest Service need not adjust the plan to take into account new data regarding the ASQ just because it used other new data in determining the number of acres affected by a change in the regeneration standard. The court holds that the use of this data to compute acreage without incorporating a new ASQ into the plan was not arbitrary and capricious or an abuse of discretion. Additionally, the inclusion of some below-cost timber does not by itself constitute an abuse of discretion. Thus, the court holds that the Forest Service's decision to treat the change in the regeneration standard as nonsignificant satisfied the requirements of the National Forest Management Act and 36 C.F.R. Part 219, and the court remands to the district court with instructions to dissolve the injunction.

[A prior decision in this litigation is published at 20 ELR 20852.]

Counsel for Plaintiff
Douglas L. Honnold
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendant
Scott W. Horngren
Haglund & Kirtley
One Main Pl., 101 SW Main St., Ste. 1800, Portland OR 97204
(503) 225-0777

Federal Defendants
Elizabeth A. Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before SEYMOUR, BARRETT, and TACHA, Circuit Judges.