Friends of the Dixie National Forest v. United States

No. 93-C-1039W (D. Utah October 5, 1994)

The court holds that the U.S. Forest Service adequately analyzed in a final supplemental environmental impact statement (SEIS) the environmental impacts of a timber harvesting project in the Dixie National Forest in Utah. The court first holds that the citizen group challenging the timber sale has standing to assert some, but not all, of its claims. The court next holds that the Forest Service adequately analyzed in the final SEIS the project's direct and indirect impacts on riparian habitat. With respect to direct impacts, the Forest Service excluded riparian areas from harvest under all the alternatives it [25 ELR 20331] considered. In its treatment of soil and water conservation practices, the SEIS addresses indirect impacts related to potential erosion in areas adjacent to riparian habitat. The court holds that the absence of a management indicator species (MIS) as a tool for monitoring potential impacts on riparian habitat is not, by itself, a fatal flaw in the SEIS. The court next holds that the group lacks standing to raise issues involving a downstream "cumulative effects" area and fisheries habitat, because the group has failed to assert any direct interest in the fisheries habitat. The court next holds that the Forest Service adequately considered the impact of the project on the northern goshawk. Not only did the Forest Service withdraw its original record of decision in response to the discovery of goshawk and other resources in the project area, it formulated two new alternatives specifically designed to improve goshawk habitat over current conditions. The Forest Service then selected the alternative forecast to be the most favorable to goshawk after two years of further administrative study and procedure. The court next holds that the Forest Service adequately analyzed the project's impacts on recreation and visual quality. Although the record does not treat every possible aspect of recreational and visual impacts, on the whole the SEIS acknowledges the general areas of concern and adequately assesses the project for National Environmental Policy Act purposes.

Turning to the group's claims that the Forest Service violated the National Forest Management Act, the court holds that the group lacks standing to assert that the Forest Service failed to make management decisions with a properly selected MIS. The group has not shown a direct, adverse impact on the project area as a result of the analysis that was performed without an adequate MIS and, thus, cannot show any injury to its own interests. Moreover, because the group cannot articulate any unique circumstances creating a particularized need for an MIS in this case, there is no causal connection between the alleged injury and the Forest Service's failure to maintain a riparian MIS. The court holds that the group also lacks standing to assert that the Forest Service was required to amend the forest plan when it implemented portions of the management recommendations for the northern goshawk. Although the discovery of the goshawk in the project area ultimately became a major factor in the alternative chosen, it was not a factor in the decision to permit logging per se, and the group has not articulated an injury caused by the Forest Service's selected alternative. The court next holds that the Forest Service did not fail to protect sufficient old growth habitat in the project area. The Forest Service reasonably assumed that other areas in the forest contain ample old growth habitat to compensate for the deficit resulting from the timber sale. The court holds that the group lacks standing to assert that the government is not receiving fair market value for the timber products, because such a claim does not invoke a case or controversy.

Finally, the court holds that the project does not violate the Federal Water Pollution Control Act. The record in this case demonstrates that the Forest Service gave ample attention to water quality issues, including provisions expressly designed to meet requirements of applicable state regulations. Thus, the Forest Service's claim that the project will meet water quality standards is not arbitrary or capricious.

Counsel for Plaintiff
Grove T. Burnett, Eric Ames
Western Environmental Law Ctr.
1807 Second St., Ste. 8, Santa Fe NM 87505
(505) 988-4714

Counsel for Defendants
Kenneth D. Paur
Office of the General Counsel
U.S. Department of Agriculture
205 Forest Service Bldg., 507 25th St., Ogden UT 84401
(801) 625-5441

Order Granting and Denying Motions for Summary Judgment

Winder, J.:

This matter is before the court on plaintiff's and defendants' cross-motions for summary judgment and plaintiff's motion for preliminary injunction. A hearing on all of these motions was held on August 31, 1994. Plaintiff Friends of the Dixie National Forest ("Friends of Dixie") was represented by Eric Ames and Raymond Scott Berry. Defendants United States, et al., ("United States"), were represented by Stephen Roth and Kenneth D. Paur. Defendant-Intervenor Kaibab Industries, Inc. ("Kaibab") was represented by Norman D. James. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to the various motions. Now being fully advised, the court renders the following memorandum decision and order.

I. Background

This case derives from an appeal by Friends of Dixie of a Record of Decision¹ issued by the Forest Supervisor of the Dixie National Forest on March 22, 1993, authorizing the controlled harvest of some 5 million board feet of timber within the Dixie National Forest. Specifically, the timber project area in question comprises 3,722 acres located in Tippets Valley, approximately 20 miles east of Cedar City, Utah. The 1993 Record of Decision followed several years of study in which the Forest Service ultimately compiled seven proposed alternatives, designated as "A" through "G," and then selected alternative "F." According to the 1993 Record of Decision, "[t]his alternative was designed to provide the quickest progression toward the desired future condition for the habitat needs of goshawk and its prey . . . while providing for other resource concerns, including timber production, visuals, recreation, and other wildlife species needs." AR, Ex. 11 at 636. The Friends of Dixie appeal was denied by the administrative Reviewing Officer on August 23, 1993, and the Tippets Valley timber contract was subsequently awarded to Kaibab Industries in late September of 1993. Friends of Dixie appealed the administrative ruling to this court but did not file a motion for preliminary injunction at that time.

Due to the presence of Northern Goshawk in the project area, Kaibab's contract with the Forest Service restricts logging activities during the summer nesting period of that species. Logging commenced in the fall of 1993 and continued until winter weather conditions halted timber harvesting activity early in 1994. The Tippets project area is located at elevations approaching 10,000 feet. Apparently, unusually mild weather allowed Kaibab to continue harvesting timber for a longer than anticipated period during the winter of 1993-94. During this period roughly two-thirds of the contract timber was removed.

During the summer of 1994 the Forest Service performed an inventory, determined that the remaining harvest areas contained no goshawk, and authorized the recommencement of harvesting beginning in September.² Friends of Dixie filed a motion for summary judgment and a motion for preliminary injunction to halt the anticipated September, 1994, harvesting of the remaining contract timber in the Tippets project area. The United States and Kaibab filed cross-motions for summary judgment. All parties have stipulated that the administrative record constitutes the sole basis for judicial review, allowing this court to dispose of the case by ruling in favor of either plaintiff or defendants as a matter of law.

II. Standard of Review

In reviewing a motion for summary judgment a court must determine whether, in the absence of a genuine issue of material fact, the moving party is entitled to judgment as a matter of law. Thompson v. Dulaney, 838 F. Supp. 1535 (D. Utah 1993). When appeals are taken from administrative rulings, review is governed by the Administrative Procedures Act, 5 U.S.C. §§ 701-06. Under the APA the reviewing court may only reverse an administrative decision if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

III. Analysis

Friends of Dixie argues that it is entitled to summary judgment [25 ELR 20332] because the Forest Service violated the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Clean Water Act ("CWA"). The United States and Kaibab, in their motions for summary judgment, contend that none of the grounds advanced by Friends of Dixie justifies reversal of the Forest Service's actions, and that this court should uphold that agency's administrative decisions and rulings.

A. Standing

As an initial matter Kaibab³ challenges Friends of Dixie's capacity to bring this action. In order to demonstrate standing, Friends of Dixie must have suffered an "injury in fact" — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of. . . . Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 [22 ELR 20913] (1992) (citations omitted). Kaibab offers its standing argument as a general objection to all of Friends of Dixie's claims. With respect to certain issues raised in its motion for summary judgment, Friends of Dixie does indeed lack standing. Those issues will be discussed individually below. With respect to the remainder of Friends of Dixie's claims, however, Kaibab's general objection fails and this court must treat those issues on the merits. Organizations may assert claims on behalf of members who have aesthetic and environmental interests in particular public lands, and who are personally injured in their enjoyment of those lands. Sierra Club v. Morton, 405 U.S. 727, 734-35 [2 ELR 20192] (1972). Thus, where Friends of Dixie, via affidavits submitted by its members, asserts injury to the forested areas, wildlife, and wildlife habitat of Tippets Valley, it has asserted an injury in fact. Where that injury is a consequence of the Forest Service's decision to permit logging in Tippets Valley, Friends of Dixie has also demonstrated causation. In order to remedy the injury Friends of Dixie requests that the project be halted and the Environmental Impact Statement be amended.⁴

B. NEPA Claims

Friends of Dixie asserts several distinct claims of Forest Service violations of the National Environmental Policy Act, arguing that the Final Supplement to the Environmental Impact Statement ("FSEIS") for the Tippets Valley sale fails to adequately analyze impacts on: (1) riparian habitat; (2) fisheries habitat; (3) the Northern Goshawk; (4) recreation; and (5) visual quality. With respect to these issues NEPA simply requires the reviewing court to "insure that the agency has taken a 'hard look' at environmental consequences." Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 [6 ELR 20532] (1976). In the course of ascertaining whether the government agency has taken the requisite "hard look," the court "must examine the data and methodology that underlie the [Environmental Impact Statement]." Johnston v. Davis, 698 F.2d 1088, 1091 [13 ELR 20415] (10th Cir. 1983). Friends of Dixie relies heavily on this requirement, arguing that the FSEIS demonstrates an absence of data sufficient to generate an informed conclusion as to any of the five issues they have raised under NEPA. But NEPA does not require that the environmental impact data meet any particular substantive standard. Rather, the reviewing court performs an examination of underlying data and methodology for the limited purpose of determining whether the impact statement answers the concerns of NEPA by providing "a good faith, objective, and reasonable explanation of environmental consequences." Id.

With respect to the claim that the Forest Service inadequately analyzed the impacts on riparian habitat, Friends of Dixie argues that the absence of a Management Indicator Species ("MIS") for riparian habitat constitutes a fatal flaw in the Tippets Valley FSEIS. MIS "are a select group of wildlife species used to monitor the effects of management activities on wildlife populations." Administrative Record ("AR"), Ex. 10 at 140. The Yellow-Breasted Chat is the designated MIS for riparian habitat in the Dixie National Forest. AR, Ex. 10 at 143. Apparently, there are no chat in the project area, or for that matter, anywhere in the Dixie National Forest. Id. As a result, the Forest Service cannot use the chat as a monitoring tool for riparian impacts.

The Tippets Valley FSEIS nonetheless reflects a significant sensitivity toward riparian habitat. With respect to direct impacts, riparian areas were excluded from harvest under all of the alternatives considered. AR, Ex. 10 at 99. Moreover, no roads were permitted in riparian areas and existing roads will be rerouted. Id. As a result, the Forest Service asserts that riparian habitat will actually be improved by the project. Id. As for indirect impacts related to potential erosion in areas adjacent to riparian habitat, the FSEIS addresses these concerns in its treatment of Soil and Water Conservation Practices. AR Ex. 10 at 369-401. The treatment of direct and indirect impacts on riparian habitat by the FSEIS thus demonstrates a good faith effort to respond to NEPA's concerns by taking a hard look at potential impacts on riparian habitat. The absence of one particular tool for monitoring future impacts⁵ does not, by itself, demonstrate that the Forest Service decision was arbitrary or capricious.

Friends of Dixie's second NEPA claim addresses the issue of fisheries habitat. The Tippets project area itself contains no fisheries habitat. It does however provide drainage into lower Tommy Creek and Mammoth Creek, which do support fish populations. Id. at 134. Friends of Dixie argues the Forest Service does not possess adequate information about this downstream "cumulative effects" region, cannot guarantee the effectiveness of proposed measures to mitigate sediment creation, and has no plan to monitor impacts. However, the affidavits submitted by Friends of Dixie's members do not mention the cumulative effects area or interests in fisheries habitat. "[T]he 'injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Morton, 405 U.S. at 734-35. Because Friends of Dixie has failed to assert any direct interest in the fisheries habitat (which is located entirely outside the project area), it does not have standing to raise this claim.⁶

Friends of Dixie next asserts that the Forest Service failed to adequately consider the impact of the Tippets project on the Northern Goshawk.⁷ This claim also fails. Not only did the Forest Service withdraw its original 1991 Record of Decision in response to the discovery of goshawk and other resources in the project area, AR, Ex. [25 ELR 20333] 4 at 4; Ex. 5 at 5-19; Ex. 7 at 21-22; Ex. 10 at 30, it formulated two new alternatives ("F" and "G") specifically designed to improve goshawk habitat over current conditions. AR, Ex. 10 at 34, 208-11. The alternative forecast to be the most favorable to the goshawk ("F")⁸ was ultimately selected after nearly two years of further administrative study and procedure. The analysis surrounding this process and leading to the ultimate decision is documented throughout the administrative record, and includes, among other things, restrictions on logging during goshawk nesting season, detailed silvicultural analysis,⁹ an extensive comparison of the impacts of each alternative on the goshawk, and a record of a meeting with the authors of the Management Recommendations for the Northern Goshawk. See, e.g., id. at 204-11, 269-70, 567-70, 614-31; Ex. 11 at 636-37, 639; Ex. 25 at 792-99; Ex. 75 at 2962-76; Ex. 77 at 3009-101. In sum, the Forest Service has met the "hard look" standard with respect to the Northern Goshawk.

Friends of Dixie also argues that the Forest Service did not adequately analyze impacts on recreation and visual quality. The Forest Service treated these issues by conducting periodic monitoring of recreational use¹⁰ and evaluating visual sensitivity levels from the perspective of primary and secondary roads.¹¹ AR, Ex. 10 at 146-47. Although in-person surveys were not conducted,¹² the Forest Service did consider various recreational and sightseeing activities of visitors, and then assessed the impact of the timber project on those activities.¹³ AR, Ex. 10 at 144-46, 225-30, 246-51, 270-71, 572-73. Thus, while the record does not treat every possible aspect of recreational and visual impacts, on the whole the FSEIS acknowledges the general areas of concern and adequately assesses the project for NEPA purposes.

C. NFMA Claims

Friends of Dixie argues that the Forest Service violated the National Forest Management Act by: (1) failing to monitor and replace the Yellow-Breasted Chat as the MIS for the Dixie National Forest; (2) failing to formally amend the Forest Plan to include Northern Goshawk Recommendations; (3) failing to maintain adequate old growth habitat in the Tommy Creek drainage; and (4) selling timber for less than appraised value. In order to prevail on any of these claims, Friends of Dixie must demonstrate standing and, under the APA, prove that the Forest Service's actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

Friends of Dixie's first claim attempts to link the absence of the Yellow-Breasted Chat in the project area to the Congressional mandate that Forest Service plans must "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple use objectives." 16 U.S.C. § 1604(g)(3)(B); see also 36 C.F.R. § 219.19.¹⁴ Because the chat, as the riparian MIS for the Dixie Forest Plan, is a significant and required tool for "indicat[ing] the effects of management activities," 36 C.F.R. § 219.19(a)(1), Friends of Dixie asserts that the "Forest Service violates NFMA by making management decisions without a properly selected MIS."¹⁵

Regardless of the general validity of this argument, Friends of Dixie's ability to raise the claim within the scope of the present litigation is severely restricted. Friends of Dixie does not directly challenge the validity of the Dixie Forest Plan. Rather, the complaint merely attempts to halt the continued harvesting of timber in Tippets Valley, and only asserts standing with respect to that project. As previously noted, a plaintiff must demonstrate injury in fact, a "causal connection between the injury and the conduct complained of," and redressability. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 [22 ELR 20913] (1992). Friends of Dixie cannot demonstrate injury in fact or causation. As previously discussed, Friends of Dixie has not shown a direct, adverse impact on Tippets Valley as a result of analysis performed without an adequate MIS; and thus cannot show any injury to its own interests. Moreover, because Friends of Dixie cannot articulate any unique circumstances creating a particularized need for an MIS in this case,¹⁶ there is no causal connection between the alleged injury and the Forest Service's failure to maintain a riparian MIS. Although the prolonged absence of a riparian MIS throughout the Dixie National Forest is troubling and raises questions as to the Forest Service's attentiveness to this particular obligation under its general management duties, the Tippets Valley litigation is not the proper vehicle for raising the issue.

Friends of Dixie next asserts that the Forest Service was required to amend the Forest Plan¹⁷ when it implemented portions of the Management Recommendations for the Northern Goshawk. This claim must also fail for lack of standing. The discovery of goshawk in the project area ultimately did become a major factor in the alternative chosen for Tippets Valley. Nevertheless, it was not a factor in the decision to permit logging per se. Rather, it simply provoked an adjustment in the alternative chosen. Friends of Dixie never states an articulable injury flowing from the Forest Service's choice of alternative "F" (resulting from the goshawk discovery), instead of alternative "E" (the option chosen by the 1991 Record of Decision). While these alternatives are qualitatively different in their treatment of various management blocks, Friends of Dixie does [25 ELR 20334] not even allege that this particular distinction caused any cognizable harm to its members interests; and although it does suggest in its argument that the management recommendations "may displace Standards and Guidelines for the protection of other vertebrate species," this unsupported¹⁸ and vague allegation is insufficient to meet the injury in fact requirement.¹⁹

Friends of Dixie also asserts that the Forest Service failed to protect sufficient old growth habitat in Tippets Valley. Tippets Valley lies within the Tommy Creek drainage. The Dixie Forest Plan requires that each drainage be maintained as seven to ten percent good to excellent old growth habitat. AR, Ex. 10 at 192-97, 334. A prior project in the Tommy Creek drainage, the "Tommy Creek Timber Sale," did not account for old growth and incurred a potential deficit of 140-200 acres. Id. at 196-97. The Tippets [V]alley sale is projected to retain 9.7% old growth, contributing 93 acres above the minimum requirement. This leaves 47-107 extra acres of old growth to be found in areas within the Tommy Creek drainage, but outside the two project areas.²⁰ These remaining areas "are similar to the Tippets Valley area in that they have never been treated and are composed of a mixture of aspen, mixed conifer and spruce/fir forest types." Id. at 195. The Forest Service based this assessment on a combination of formal inventory data and aerial photos. Id. at 193. Tippets Valley, prior to the commencement of logging, contained twenty-one percent old growth. Id. at 192. Assuming the remaining areas also contain roughly twenty-one percent old growth habitat, the FSEIS concludes that those areas contain ample old growth habitat to compensate for the deficit. Id. at 196-97. This conclusion is based on a reasonable assumption and is not arbitrary or capricious.

Friends of Dixie concludes its NFMA argument by claiming that the Government is not receiving fair market value for the timber products in Tippets Valley. This complaint, however, "rais[es] only a generally available grievance about government — claiming only harm to [plaintiff's] and every citizen's interest in proper application of [the law], and seeking relief that no more directly and tangibly benefits [the plaintiff] than it does the public at large." Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2143 [22 ELR 20913] (1992). Such a claim does not invoke a case or controversy, and therefore cannot confer standing on Friends of Dixie.²¹ Id.; Big Hole Ranchers Ass'n v. United States Forest Service, 686 F. Supp. 256, 263 [18 ELR 21468] (D. Mont. 1988).

D. CWA Claim

Friends of Dixie's final claim is that the Tippets Valley project violates the Clean Water Act.²² The CWA requires each state to implement water quality standards consistent with the purposes of the act. 33 U.S.C. § 1313. Friends of Dixie asserts that proposed Soil and Water Conservation measures have previously been inadequate and cannot meet required levels even if they were proven to be effective. In particular, Friends of Dixie places heavy reliance on a Ninth Circuit case ruling that Forest Service Best Management Practices (BMPs) were inadequate to meet CWA requirements. See Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 [17 ELR 20021] (9th Cir. 1986). That case simply held that substantive state standards could not be circumvented by BMPs that required a less stringent standard. Id. The record in this case, on the other hand, demonstrates ample attention to water quality issues, including provisions expressly designed to meet clean water requirements under applicable Utah regulations. See AR, Ex. 10 at 264-65, 267-69, 368-401, Ex. 51 at 2253-56. As a result, the Forest Service's claim that water quality standards will be met is neither arbitrary or capricious.

IV. Order

For the foregoing reasons, and good cause appearing, IT IS HEREBY ORDERED as follows:

1. Defendants United States, et al., and Kaibab Industries, Inc.'s Motions for Summary Judgment are Granted.

2. Plaintiff Friends of Dixie National Forest's Motion for Summary Judgment is Denied.

3. As the preceding orders dispose of this case, Plaintiff's Motion for Preliminary Injunction is rendered moot.

4. Nocosts awarded.

Judgment

In accordance with the Order entered this date in this case which grants defendants' and defendant-intervenor's motions for summary judgment, and denies plaintiff's motion for summary judgment, and pursuant to Rule 58 F.R. Civ. P., and good cause appearing,

IT IS HEREBY ORDERED AND ADJUDGED as follows:

1. Judgment is entered in favor of defendants and defendant-intervenor of dismissal with prejudice of plaintiff's complaint.

2. No costs are awarded.

1. This was the final Record of Decision issued on the Tippets sale. An earlier Record of Decision (issued on June 3, 1991) was withdrawn when new information concerning wildlife, watershed, and cultural resources was discovered. This new information, primarily concerning a "sensitive" species of forest raptor, the Northern Goshawk, prompted the selection of a new alternative for the timber sale.

2. If Goshawk are in the harvesting areas, logging may not be performed prior to October 1st. Notwithstanding Forest Service permission to begin logging September 1st, Kaibab informally agreed to delay timber harvesting until October 1, 1994, in order to allow this court time to issue a ruling on the various motions. Transcript of Hearing on Motions at 44.

3. The United States did not raise this issue in its brief.

4. This particular element of Friends of Dixie's standing is somewhat problematic because a significant portion of the project has already been completed and it is not clear what impact an immediate cessation would have on the interests of Friends of Dixie's members, or what new outcome a reevaluation of the Environmental Impact Statement would produce. Nevertheless, assuming Friends of Dixie could prevail on its assertions that the Forest Service had acted in an arbitrary and capricious manner, an injunction halting timber harvesting would force the Forest Service to correct those problems to the degree possible. Thus, although Friends of Dixie likely could not receive a full restitution of its interests, its members' interest in preserving the remaining unharvested areas of Tippets Valley provides standing.

5. This would be more troublesome if the project did involve more significant articulable impacts on riparian areas. In such a case, the absence of a[n] MIS could limit the ability of the Forest Service to collect critical monitoring data. Without articulable impacts, however, that data likely becomes less critical, and in any event does not amount to a violation of NEPA.

6. Friends of Dixie offered to amend its affidavits to correct this problem. Even if the court had granted this request, it would not change the outcome. The administrative record demonstrates ample awareness of, and attention to, existing sediment impacts which are adversely affecting fish populations. AR, Ex. 10 at 133, 134-35, 521; Ex. 54 & 55 at 2558-84. The 1993 Record of Decision focused special attention on the existing sedimentation problem, mandating completion of watershed improvement projects prior to any ground-disturbing logging activities. AR, Ex. 11 at 638. The FSEIS incorporates extensive Soil and Water Conservation Practices designed to minimize or even eliminate sediment impact on streams. AR, Ex. 10 at 365-401; Ex. 11 at 636. Moreover, the record reflects that monitoring has occurred in the downstream cumulative effects area, and prescribes expanded efforts in that area. AR, Ex. 10 at 133. The record thus demonstrates that the Forest Service took a hard look at factors impacting fisheries habitat.

7. Much of the debate on this point centers on the Forest Service's use of the Management Recommendations for the Northern Goshawk. These recommendations have not been adopted by the region encompassing the Dixie National Forest, but are merely considered as important information for goshawk management. AR, Ex. 87 at 3276. Friends of Dixie complains that a small number of discrete items of information relevant to application of the Guidelines was not included in the record. (See Pl. Mem, Supp. Summ. J. Ex. 7.) But NEPA does not require the Forest Service to rigorously compile data proving compliance with every facet of a non-binding recommendation. Such a requirement would go well beyond the quantity of data necessary for "a good faith, objective, and reasonable explanation of environmental consequences," Johnston, 698 F.2d at 1091, particularly in light of the sheer number of issues that must be treated in an Environmental Impact Statement.

8. The Forest Service acknowledges that even this alternative may vary somewhat from optimum conditions for the goshawk, but asserts that any variation was necessitated by a multitude of competing factors. AR, Ex. 10 at 209-10.

9. In this regard, the United States notes in its brief that the entire Silviculture Prescription, though made available to Friends of Dixie during discovery, "was not included in the record because of its bulk." (Gov't. Mem. Resp. Summ. J. at 24).

10. The monitoring was conducted "on eight weekend and holiday days and on eight week days during the summer." AR, Ex. 10 at 144-46. Monitoring apparently also occurred on several days during the winter season. (Pl. Ex. 8 at 16.)

11. The Forest Service method for assessing visual resources is contained in U.S. Department of Agriculture Handbook Number 462. AR, Ex. 90 at 3280-3328. Primary travel routes are rated as Sensitivity Level One when at least one-fourth of the travelers have a major concern for scenic qualities; and at Sensitivity Level Two when less than one-fourth have such a concern. Id. at 3300-03. On secondary routes where more than three-fourths of the travelers have a major concern for scenic qualities the rating is Sensitivity Level One; between three-fourths and one-fourth is Sensitivity Level Two; and less than one-fourth is Sensitivity Level Three. Id. The Forest Service has designated the Tippets Valley project area as Sensitivity Level Two. Handbook 462 also requires assessment of five "Retention" rates, "each describ[ing] a different degree of acceptable alteration of the natural landscape based upon the importance of esthetics." Id. at 3309. The desired Retention rate for foreground, middleground, and background landscapes is indexed to the Sensitivity level, providing a means of assessing whether proposed management activities meet visual quality objectives. At Sensitivity Level Two, the Tippets Valley project must maintain "partial retention" (management activities evident but not dominant) for foreground landscape, and "modification" (management activities may dominate but must remain in scale with natural features) for middleground and background landscapes. AR, Ex. 10 at 147; Ex. 90 at 3309. The Forest Service asserts that, with respect to alternative "F" these minimum requirements will be met or exceeded, and that monitoring plans will measure compliance. AR, Ex. 10 at 235-36, 272.

12. Friends of Dixie argues that Forest Service failure to conduct these surveys undermines the conclusions that it reaches concerning recreational usage and visual sensitivity. With respect to recreational usage the Forest Service relied on its experience with observing the types of activities in which visitors engaged, and on periodic statistical surveys. AR, Ex. 10 at 144-46. More extensive observation was not conducted because of prohibitive cost and other impediments. Id. at 573-74. Although this limited the amount of data upon which the Forest Service could rely, the FSEIS nevertheless exhibits a good faith effort to address the issue. As for the asserted failure to survey visitors for their visual sensitivity, the Forest Service claims that more than one-quarter of the visitation to Tippets Valley relates to ranching activities and administrative purposes. Id. at 573. By assuming that this category of visitors does not have a major concern for aesthetic values (and also assuming that all other visitors did have a major concern) the Forest Service designated the project area as Sensitivity Level Two. Id. Even though greater certainty could be obtained through comprehensive in-person surveys, requiring the Forest Service to perform them would be unduly burdensome. It is not unreasonable to assume that the number of persons having major aesthetic concerns is roughly proportional to the number of persons engaged in recreational pursuits. See also AR, Ex. 90 at 3284 (presenting same assumption in Handbook 462).

13. Friends of Dixie also attacks the practice of assigning visual quality ratings based only on viewing from roads. NEPA, however, does not require the Forest Service to adopt any particular conception of the visual landscape. Handbook 462 represents a good faith effort to protect visual resources.

14. Friends of Dixie does not argue that the absence of the chat, or any other particular species, constitutes a per se violation of NFMA. Rather, the argument relates to the chat's importance as a management tool under Forest Service regulations.

15. Both Kaibab and the United States claim that the Northern Goshawk is also a designated MIS for riparian habitat. This assertion is incorrect. Although the goshawk may inhabit trees growing in riparian areas, it is not listed as an indicator species for that particular habitat, AR, Ex. 10 at 140-41, and the administrative record makes no assessment as to the goshawk's suitability for that designation.

16. As a result, Friends of Dixie's argument effectively stands for the proposition that an MIS must always be present in each discrete area chosen for management treatment. Such a blanket rule would preclude any management decisions for areas where the MIS, for whatever reason, was not present.

17. Formal amendment of a forest plan requires the full panoply of procedures mandated for adoption of the original plan, including NEPA analysis and public notice and comment. 16 U.S.C. § 1604(f)(4).

18. Friends of Dixie cites to the Standards and Guidelines themselves, but offers no information, by affidavit or otherwise, suggesting that implementation of goshawk recommendations materially influenced existing standards, resulting in an injury to its members.

19. In fact, alternative "F" involves a significantly lower volume of timber harvest than alternative "E." See AR, Ex. 10 at 90-91. Since members of Friends of Dixie in their affidavits object to any logging atall, the implementation of goshawk data appears to have benefitted their interests rather than damaged them. What is more, even if Friends of Dixie could demonstrate an injury flowing from utilization of goshawk information, it would not change the outcome in this case. Here, the Forest Service determined that the information on the goshawk merited consideration of new alternatives and a supplement to the Environmental Impact Statement, but did not require an immediate stoppage of all projects on the Dixie National Forest for the purpose of formal amendment of the Forest Plan. The Forest Service's decision on this matter is entitled to substantial deference, Sierra Club v. Cargill, 11 F.3d 1545, 1548 [24 ELR 20717] (10th Cir. 1993), and, with respect to the new information on the Northern Goshawk, that determination was reasonable and proper. To require the Forest Service to formally amend the Forest Plan each time it receives information likely to impact management decisions would virtually paralyze the agency and create a substantial disincentive for gathering data relevant to its ongoing operations.

20. Because the Forest Service has not yet completed a comprehensive stand inventory for the Tommy Creek area outside the Tippets project, those acres have not yet been specifically identified.

21. Not only does the Forest Service deny that it is selling timber at a loss, a below cost sale may not even constitute a violation of any statute or regulation. Sierra Club v. Cargill, 11 F.3d 1545, 1549-50 [24 ELR 20717] (10th Cir. 1993).

22. Much of Friends of Dixie's claim on this issue apparently revolves around the Forest Service's purported historic failure to monitor and implement best management practices for water quality in the Dixie National Forest. See, e.g., Ex. 94-1 at 3358, 94-4 at 3366, 3367, Ex. 94-6 at 3376-80. The implication drawn from this argument is that Forest Service assurances as to current and future improvement are disingenuous. The record, however, reflects an awareness of current problems and a concerted effort to avoid any negative impact with respect to this particular project. As the Regional Forester's Decision on Appeal notes:

The FSEIS for Tippets Valley includes a rather exhaustive list of mitigation and monitoring measures that will be included with the action being taken and the Forest Supervisor has made a very clear commitment to the use of these measures in the Record of Decision. We believe this direction is in compliance with NEPA, CWA, and NFMA.

AR, Ex. 92 at 3343.