ELR Citation: ELR 21529
No(s). A 95-0008-C H/H (S.D. Ind. May 7, 1996)

The court upholds the U.S. Forest Service's decision to allow clearcutting and to conduct a salvage timber sale in the Hoosier National Forest. The court first holds that an amendment to the Hoosier National Forest Land and Resource Management Plan that permits clearcutting under certain circumstances complies with the National Forest Management Act's (NFMA's) requirement that clearcutting only be used when it is the optimum method of tree harvesting. The court then holds that the Forest Service complied with regulations requiring it to consider the logging's effect on residual trees and adjacent stands. The amendment addresses the potential effects in its forestwide strategies, in its more specific management prescriptions, and by specifying management practices to ensure careful consideration before site-specific actions are taken. The court next holds that the Forest Service's decision to conduct a salvage sale of 50 acres of red pine trees was not arbitrary and capricious. Further, the salvage decision did not violate the NFMA provision restricting the use of clearcutting. Under the statute, clearcutting does not have to be "essential" to be permissible. The statute is deliberately worded in terms of an "optimum" technique and the Forest Service found expressly that clearcutting was the optimum harvest method for the red pine salvage sale. In addition, the court holds that the NFMA clearly permits the Forest Service to address visual concerns by using the less intrusive shelterwood cut method on four of the 50 acres bordering forest roads. The court next holds that the Forest Service properly based its decision not to prepare an environmental assessment (EA) for the sale on a categorical exclusion for small-scale salvage sales. The record supports the Forest Service's conclusion that no extraordinary circumstances that would require an EA exist. Further, because the Forest Service properly relied on a categorical exclusion, it was not required to consider reasonable alternatives to the salvage plan. Finally, the court holds that the red pine salvage operation would not result in a "taking" of migratory birds under the Migratory Bird Treaty Act (MBTA). Habitat destruction and logging during nesting season do not produce "takings" of migratory birds within the purview of the MBTA. Thus, the operation was not "otherwise not in accordance with law" under the Administrative Procedure Act.

The court subsequently denies plaintiff's motion to alter or amend judgment regarding the scope of the MBTA. Although the language of the MBTA is broad, it should not be read to prohibit any and all deaths of migratory birds that may result from logging operations in national forests, even in nesting season. The MBTA applies only to activities that are intended to harm or to exploit harm to birds. The statute's terms, history, and enforcement do not indicate that Congress intended the MBTA to be applied to any and all human activity that may result in unintended and accidental deaths of migratory birds.

Counsel for Plaintiff
Andy Mahler
Rte. 3, P.O. Box 402, Paoli IN 47454
(812) 723-2430

Counsel for Defendants
Sue H. Bailey, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. Cthse.
46 E. Ohio St., 5th Fl., Indianapolis IN 46204
(317) 226-6333