Arguments made for and against Shawnee National Forest logging injunction
</element><element id="paragraph-1" type="body"><![CDATA[Judge Phil Gilbert heard arguments Thursday in Benton U.S. District Court that could determine whether commercial logging and oil and gas exploration will return to the Shawnee National Forest.
Gilbert ordered the injunction ending commercial logging, oil and gas exploration and all-terrain vehicle use on the Shawnee exactly 16 years ago Thursday, on Feb. 16, 1996, after hearing arguments from the U.S. Forest Service defending the 1992 forest plan and complaints about it from Tom Buchele representing the Sierra Club, Regional Association of Concerned Environmentalists and the local Audubon Society.
Whatever Gilbert's decision, neither activity will return very soon. Gilbert told the audience in the courtroom following Thursday's hearing he does not expect to make a decision for months.
"I want to thank you for coming here for oral argument. There is a lot of material I have reviewed and a lot of material I have to review before the court will issue a decision," Gilbert said.
Gilbert said he will be hearing cases for the 7th District Court of Appeals in the coming weeks and expects to make his decision "two or three months down the line."
"I will let the parties know if I dissolve this in whole or in part or not at all.
The environmental groups argued the 1992 forest plan was deficient on nine counts and asked for a permanent injunction against timbering until the issues are resolved.
After hearings in 1996, Gilbert agreed with four of the environmentalists' points of contention: That the Forest Service did not have an adequate plan for management of indicator species -- specifically forest interior songbirds, effects of oil and gas exploration were not adequately addressed, effects of ATV use were not adequately addressed and cumulative effects of activities on the forest were not adequately addressed.
Gilbert issued the permanent injunction "until such time as the Forest Service issues new or revised planning documents in a manner consistent with this court's ruling," he wrote in 1996.
The Forest Service issued a new Land and Resource Management Plan -- forest plan -- in 2006 and believes the points the environmental groups and Gilbert found to be deficient were fixed in that plan. The issue of ATV use is a non-issue since the new plan does not allow for any ATV use except for emergency responders and those with a disabled ATV permit. In July 2011 the Forest Service asked the court to lift the injunction on commercial logging.
RACE and the Audubon Society opposed to the lifting of the injunction. The Sierra Club is not taking a position this time, Buchele said Thursday.
Gilbert opened the day's hearing with a reminder of how things can change in 16 years. As a matter of full disclosure, he said his longtime law clerk on environmental cases, Tracy Prosser, married a man who following the marriage became a member of RACE. Prosser is still his law clerk and her husband now has a job with the U.S. Forest Service.
He asked if either of the two sides saw a problem with Prosser continuing to act as his law clerk on the issue based on her husband's associations with both RACE and the Forest Service.
"I want to emphasize to the parties this is my decision, not hers," Gilbert said.
Both Buchele and John Pershing Tustin representing the Forest Service said they had no problem with Prosser's continued role in the proceedings.
Tustin began by saying the new forest plan has adequately addressed the inefficiencies previously identified and that the the plan does not include site-specific analysis that he believes the plaintiff's are desiring.
"What is before you here today is a plan to manage the Shawnee National Forest on a forest-wide scale," Tustin said.
On the issue of the viability of management of indicator species, Tustin said the plan incorporated the works of 58 experts from the Hoosier and Shawnee National Forest as guides. He said complaints the 1992 plan used old data have been met by using data collected in 2002 and 2003 regarding forest species and using that data to update the forest's habitat suitability index model.
For that model the forest selected five birds, including the cerulean warbler whose habitat is protected.
Tustin said the plan fixes deficiencies regarding the cumulative effects of actions. Following each resource listed in the plan such as soil and water there are cumulative effects of possible actions such as logging. The habitat suitability index model describes the expected impacts on habitat of species from such actions as grazing, logging and fire.
Regarding oil and gas, Tustin said the plan does not authorize such activity. It identifies areas suitable for leasing if that decision is made and that decision would involve a separate process required under National Environmental Protection Act.
Tustin said the new plan envisions more potential for effects than the previous plan.
"The plan did not analyze the effects of an oil spill. This plan does," Tustin said.
Gilbert asked Tustin to explain the process of an oil and gas lease, as he understands the plan does not include site-specific effects of such a process.
Tustin agreed the new plan only identifies areas the Forest Service has deemed suitable for consideration of oil and gas exploration. If someone requested a lease on land the plan has deemed not suitable for such activity that activity would not be authorized. If an area was deemed suitable, the NEPA process would begin involving a public comment period, publication in "The Federal Register," possibly a public meeting, an environmental impact statement or environmental assessment and the issuance of a decision that would be subject to appeal. He said the process would be the same regarding commercial timbering.
Gilbert asked about someone wanting to drill for gas using the hydraulic fracturing method. Tustin said the plan allows the forest to analyze the cumulative effects of that proposal if that is in an area deemed suitable by the plan.
Buchele said the plan fails to take a "forest-wide" approach when considering cumulative impacts of activities.
He used the example of Bell Smith Springs, an area that is protected, but that is surrounded by land not protected and that would be susceptible to impacts from activities on surrounding lands. Buchele said the plan may allow for consideration of natural gas exploration near Bell Smith Springs. In that case, under the procedures entailed in the plan, the Forest Service would conduct a site-specific analysis of an area near Bell Smith Springs, Buchele said, presumably leaving the springs themselves vulnerable.
Gilbert asked Buchele to describe "forest-wide."
Buchele said on the issue of interior habitat the plan identifies 36 areas, but the document does not say where they are and does not analyze what can and cannot happen there. He said the plan indicates some of those 36 areas could be open to oil and gas leasing, some for logging and maybe burning, but the plan is not clear as to where those area are located.
Gilbert said the plan may not be site specific, but asked if those areas have been identified.
Tustin described those as large-scale management areas and took out a map.
Gilbert asked if the map could be projected on a wall for all to see, but it was determined the map was too large. Tustin, Forest Supervisor Alan Nicholas and Tustin's assistant held the map up for Gilbert to examine. Nicholas pointed to an area of the map and indicated it was an area of even-aged hardwood forest. If someone looks at the description of that type of forest in the plan it is clear from the plan what activity is allowed and what is not allowed.
Buchele said that type of portrayal did not qualify as an environmental impact statement of the type he believes the plan demands.
One man in the audience said, "Yes."
Buchele said he did not appreciate comments on the matter from the audience.
Buchele said the plan needs a more clear forest-interior analysis. The plan offers conclusions on oil and gas, burning and logging, but without analysis.
"The Forest Service says we are looking for details, but that is the very thing NEPA is about," Buchele said.
The plan needs enough information for the public to determine whether the Forest Service's conclusions are arbitrary and capricious or reliable, he said. The Supreme Court has ruled such plans must contain enough information for the public to challenge them, he said.
Buchele believes the information on impacts on species in the plan is insufficient.
"We are not talking about one bird. We are talking about birds that inhabit the Shawnee," Buchele said.
Buchele mentioned it was 16 years to the day since Gilbert issued his ruling.
"RACE didn't say 16 years. They took 16 years. Did they use that time well?" Buchele said.
Buchele said the Forest Service has indicated no logging will do harm to the forest. But the Forest's plan indicates the bird population has remained stable in the 16 years of the logging injunction while bird populations have declined in the rest of the state. He said the plan shows mature hardwood forest is increasing in the 16 years and there has been no loss of cerulean warbler habitat. The injunction has caused no damage and created many benefits, Buchele said.
Buchele said no injunction should last forever.
"We want the Forest Service to have a plan that truly addresses forest-wide habitat issues," Buchele said.
He said the plaintiff's have no problem with the Gilbert setting a date for the problems to be fixed and lifting the injunction if that is done.
"Say one year from now," Buchele said.
He said he understands the Forest Service has monitored birds in the forest and have that data. He would like to see where the monitoring occurred and when it was done.
"The Forest Service did not submit a full plan to your honor or to us," Buchele said.
He said the plan disallows burning or surface-disturbing oil and gas exploration during the bird nesting season, but does not prohibit logging during the nesting season, an issue addressed by the Migratory Bird Treaty Act.
Buchele said rather than a plan that categorizes 36 areas as forest interior and the various activities that can take place within forest interior he would like to see a plan that provides a strategy to deal with the activities in Cave Alley and Burke Branch, apparently both of which are classed as forest interior.
"We are asking for the most basic information so we can challenge it," Buchele said.
Tustin said almost every point Buchele made is one appropriately addressed in the course of a site specific analysis, not a forest plan.
On the point of the injunction causing no harm to the forest, Tustin said the lack of commercial timbering could result in the choking out of the oak/hickory forests as he said has happened in the northeast which now is dominated by maple and beech forests.
Tustin said open-land management, burning and commercial harvesting clear room for the oaks and hickories -- shade intolerant trees -- to grow. He said in 20 years, the harm will be apparent as the habitat continues to deteriorate.
Tustin said as to Buchele's charge there is insufficient data in the planning record, the Forest Service has four filing cabinets of data available for public review.
Buchele said the plan does not include enough analysis.
"The Ninth Circuit just threw out a plan because there was not enough analysis in it," Buchele said.
Gilbert said he would review the evidence the two sides have provided. He said if he has questions he will arrange for a conference call with both parties for the answer and will try to reach a decision in a timely manner.
"I will try to come to a decision as quickly as possible and let the parties know with a conference call," Gilbert said.