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Newton County Wildlife Ass'n v. Rogers

ELR Citation: 28 ELR 21125
Nos. 97-1852, 141 F.3d 803/46 ERC 1694/(8th Cir., 04/01/1998) Procedural review of timber sales

The court upholds the U.S. Forest Service's approval of four timber sales in the Ozark National Forest. A coalition of environmental groups sued the Forest Service to enjoin or set aside the timber sales. The court first holds that the district court did not abuse its discretion by limiting its review to the administrative record that the Forest Service compiled for the four timber sales. The district court properly excluded the groups' evidence concerning post-sale logging and road construction, because the groups challenged the Forest Service's timber sales decisions, not post-sale activities implementing the sales. The court next holds that the groups' threshold showing of bad faith is woefully inadequate to justify going outside the administrative record. Because the groups failed to provide adequate justification for their failure to present outside material during the decisionmaking process, the court also rejects the contention that the groups must be allowed to go outside the record to demonstrate that the Forest Service violated its National Environmental Policy Act (NEPA) duty to consider all relevant environmental factors. The court then rejects the argument that the groups should be allowed to go outside the record because they have invoked the citizen suit provisions of the Endangered Species Act (ESA) and the Federal Water Pollution Control Act (FWPCA). These statutes provide for judicial review but do not prescribe a standard for that review.

The court next holds that nothing in the administrative record establishes that the Forest Service acted arbitrarily and capriciously under the Wild and Scenic Rivers Act (WSRA), the National Forest Management Act (NFMA), NEPA, the FWPCA, the Wilderness Act, or the ESA. The groups point to nothing in the record establishing that the logging and road work would have an insignificant effect on WSRA-designated river components. Under the groups' NFMA claim, the timber sales are not inconsistent with the 1991 amendments to the forest plan and environmental impact statement (EIS) for the Ozark National Forest. The Forest Service's decision to prepare an environmental assessment (EA) and not an EIS for each of the timber sales did not violate NEPA. Each timber sale is tiered to the forest plan EIS, which is consistent with the policy behind 40 C.F.R. §1502.20, to save money and time. The court then rejects that the groups' argument that the Forest Service failed to obtain the necessary FWPCA permits for the discharge of pollutants from the timber sale. The groups cite no authority for the proposition that the Forest Service needs a national pollutant discharge elimination system (NPDES) permit before contracting to allow others to harvest timber and construct roads. According to the U.S. Environmental Protection Agency (EPA), it is the operator's duty to obtain a permit, the logging and road construction activities at issue do not require NPDES permits, and there is no evidence that EPA's best management practices have been breached. The court next holds that the timber sales are not contrary to Arkansas' antidegradation policy and therefore do not violate the FWPCA. Additionally, the Forest Service did not violate the Wilderness Act of 1964 by approving upstream logging activities that will degrade down-stream wilderness areas. If the Forest Service prohibited an activity outside a wilderness area solely because of its potential effect on the area, the prohibition would violate the Arkansas Wilderness Act. Finally, the Forest Service did not err when it approved the sales before the U.S. Fish and Wildlife Service determined whether the timber sales might significantly affect any ESA-listed species. The Forest Service prepared a detailed evaluation for each sale and found that there was no effect on any listed or endangered species.

Counsel for Plaintiffs
John Holleman
Grayson, Holleman & Grayson
Mercantile Bank Bldg.
One Riverfront Pl., Ste. 555, N. Little Rock AR 72119
(501) 370-9192

Counsel for Defendants
Joel D. Armstrong
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Richard M. Pence Jr., Ass't U.S. Attorney
U.S. Attorney's Office
425 W. Capitol Ave., Ste. 500, Little Rock AR 72201
(501) 324-5342

Before Fagg and Gibson, JJ.