Kleissler v. United States Forest Service ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
6-30-1999
Kleissler v. US Forest Ser
Precedential or Non-Precedential:
Docket 98-3352
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Filed June 30, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-3352
JAMES KLEISSLER; SUSAN CURRY; ARTHUR CLARK;
RODGER CLARKE; ELOISE GLENN; MICHAEL KAIZAR;
HEARTWOOD, INC.,
Appellants
v.
UNITED STATES FOREST SERVICE; MICHAEL P.
DOMBECK, Chief Forester for the Eastern Region, United
States Forest Service; ROBERT T. JACOBS, Regional
Forester for the Eastern Region - United States Forest
Service; JOHN PALMER, Forest Supervisor for the
Allegheny National Forest - United States Forest Service;
PAYNE FOREST PRODUCTS, INC.;
SPILKA WOOD PRODUCTS COMPANY,
(Intervenors Defendants in D.C.)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 97-cv-02187)
District Judge: The Honorable William L. Standish
ARGUED January 13, 1999
BEFORE: Nygaard, Alito, and Lewis, Circuit Judges.
(Filed: June 30, 1999)
William V. Luneburg, Esq. (Argued)
University of Pittsburgh
School of Law
3900 Forbes Avenue
Pittsburgh, PA 15260
Attorney for Appellants
John R. Fernan, Esq.
Cartwright, Fernan & Whitney
P.O. Box 467
Ridgway, PA 15853
Bonnie R. Schlueter, Esq. (Argued)
Office of United States Attorney
633 United States Post Office
& Courthouse
Pittsburgh, PA 15219
David L. McClenahan, Esq.
James E. Scheuermann, Esq.
William J. Labovitz, Esq.
Daniel P. Trocchio, Esq. (Argued)
Kirkpatrick & Lockhart
1500 Oliver Building
Pittsburgh, PA 15222
Attorneys for Appellees
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Plaintiff/Appellant Kleissler1 appeals the District Court's
_________________________________________________________________
1. We refer to appellant as Kleissler for ease of reference. The term
Kleissler includes individuals James Kleissler, Susan Curry, Arthur
Clark, Rodger Clarke, Eloise Glenn and Michael Kaizar, who regularly
enjoy and use the Allegheny National Forest for study, recreation and
aesthetic enjoyment. Additionally, James Kleissler and Arthur Clark are
active members of the Allegheny Defense Project, a regional organization
dedicated to, inter alia, restoring the ecological integrity of the
Allegheny
National Forest. Our reference to "Kleissler" also encompasses
Heartwood, Inc., a non-profit Indiana corporation whose objectives
2
summary judgment. The District Court concluded that
Kleissler failed to exhaust administrative remedies as
required under section 212(e) of the United States
Department of Agriculture Reorganization Act and section
215 of title 36 of the Code of Federal Regulations governing
Forest Service regulations.2 In its Rule 54(b) certification
order, the District Court made "an express finding that the
court's . . . memorandum and order involves a controlling
question of law as to which there is substantial ground for
difference of opinion and an immediate appeal may advance
the ultimate termination of the litigation." Kleissler v.
United States Forest Serv., No. 97-2187, slip. op. at 3 (W.D.
Pa. filed June 8, 1998). We agree.
Because the District Court's summary judgment resulted
from its interpretations of federal regulations, statutes and
case law, we exercise plenary review. See Venen v. United
States, 38 F.3d 100, 101 (3d Cir. 1994). When reviewing
scientific and technical data we defer to thefindings and
expertise of the Forest Agency. See Marsh v. Oregon Natural
Resources Council, 490 U.S. 360, 377-78, 109 S. Ct. 1851,
1861 (1989); Baltimore Gas & Elec. Co. v. Natural Resources
Defense Council, 462 U.S. 87, 103, 103 S. Ct. 2246, 2255
(1983). We will only overturn the Forest Service's Finding of
No Significant Impact if that decision was arbitrary and
_________________________________________________________________
include the protection of bio-diversity and ecosystem integrity on public
and forested lands in Pennsylvania and the central hardwood region of
the United States. Its members are Pennsylvania residents who use and
enjoy the educational, recreational and aesthetic opportunities offered by
the areas of the Allegheny National Forest that are the subject of the
Minister Watershed and South Branch Willow Creek projects.
2. This appeal is limited to addressing whether Kleissler exhausted his
administrative remedies and the effect of that decision as to Kleissler's
Landscape Corridor claims as they concern areas of the Allegheny
National Forest encompassed within the Minister Watershed and South
Branch Willow Creek projects. We note that the District Court presently
has pending before it a claim by Kleissler that the Forest Service adopted
a landscape approach to preservation of old growth forests and
biodiversity on the Allegheny National Forest without complying with the
National Environmental Protection Act and the National Forest
Management Act. Accordingly, we are not deciding any issues that
pertain to that claim.
3
capricious. See Marsh, 490 U.S. at 375-77, 109 S. Ct. at
1860-61; Township of Springfield v. Lewis, 702 F.2d 426,
442 (3d Cir. 1983). Applying this standard, we will affirm.
I.
Factual Background
The Allegheny National Forest is approximately 510,530
acres in size and located in Elk, Forest, McKean and
Warren counties in northwestern Pennsylvania. Each
national forest is required by federal statute to have a Land
and Resource Management Plan. The Allegheny National
Forest is currently being managed by the United States
Forest Service under a Land and Resource Management
Plan adopted in 1986 which can be amended by following
the procedures and requirements of the National
Environmental Policy Act ("NEPA").3 Under this plan, the
Allegheny National Forest is divided into Management Areas
which share a common management direction to achieve a
common goal. Forest management and planning is divided
into two main levels: decisions concerning individual timber
cutting projects, e.g., the Minister Watershed and South
Branch projects, and decisions concerning forest
management as a whole, i.e., Land and Resource
Management Plans.
Procedural History
In accordance with 36 C.F.R. S 215.5, the Forest Service
mailed letters concerning the Minister Watershed and
South Branch projects to notify the public of the proposed
projects and provide an opportunity for public comment.
After receiving and reviewing various responses during the
thirty-day comment period and the Environmental
Assessments for the respective projects, the District Ranger
of the Bradford Ranger District of the Allegheny National
_________________________________________________________________
3. NEPA requires that an environmental impact statement be prepared
by the respective government agency before approval of any major federal
action "significantly affecting the quality of the human environment." 42
U.S.C. S 4321. An agency determines whether the action will significantly
affect the quality of the human environment by preparing an
environmental assessment under 40 C.F.R. SS 1501.4(b) and (c).
4
Forest approved the final Environmental Assessments and
issued Decision Notices and Findings of No Significant
Impact for each project. As to both projects, the District
Ranger concluded that implementing the plans "is not a
major federal action, individually or cumulatively, and will
not significantly affect the quality of the human
environment."
Kleissler filed administrative appeals for both the
Minister Watershed and South Branch projects. He raised
the following four claims and concerns in the notice of
appeal for the Minister Watershed project: (1) the adverse
effects on the Indiana Bat; (2) the potential killing of
migratory birds or disturbance of their habitats as a
violation of the Migratory Bird Treaty Act; (3) the need to
amend the Land and Resource Management Plan for the
Allegheny Forest to provide population management
objectives for species in the project area; and (4) the Forest
Service's failure to respond adequately to public comments.
After an informal appeal disposition meeting, the Regional
Forester affirmed the decision of the District Ranger. This
decision was the final administrative decision by the
Department of Agriculture concerning the project.
Kleissler's administrative notice of appeal for the South
Branch project was more extensive. His claims and
concerns for this project can be categorized as follows: (1)
the failure to consider recreational values; (2) the lack of
statistics on the level of mortality due to insects and
disease; (3) the need for dead trees in the forest for wildlife
refuge; (4) the impacts on microorganisms; (5) the nutrient
loss to the soil from the removal of trees from the forest; (6)
the cumulative impact of the Porter Hollow and South
Branch projects; (7) the effect of herbicides; (8) concerns
regarding the adverse effect on the Indiana bat's habitat; (9)
the killing of birds or disturbance of habitats as a violation
of the Migratory Bird Treaty Act; (10) the need for
population and management objectives for sensitive
species; and (11) the need to consider other alternatives
and mitigation measures. Once again, the Regional Forester
conducted an informal appeal disposition meeting and
affirmed the decision of the District Ranger. Like the
decision for the Minister Watershed project, this was the
5
final administrative determination by the Department of
Agriculture concerning the South Branch project.
Dissatisfied with these results, Kleissler filed a complaint
in the United States District Court for the Western District
of Pennsylvania seeking to enjoin the Minister Watershed
and South Branch projects. In brief, Kleissler's complaint
alleged that, with regard to the Minister Watershed project,
the designation of 3,923 acres for inclusion in a"landscape
corridor" represents a change in the Land and Resource
Management Plan for the Allegheny National Forest
requiring an amendment to the Plan only after adequate
opportunity for public comment and an environmental
impact statement. The complaint also alleged: (1) an
adverse effect of even-aged timber cutting; (2) an adverse
effect resulting from the use of herbicides in 569 acres; (3)
a failure to conserve soil and water; (4) a failure to maintain
diversity of plant and animal communities; (5) a need to
protect endangered species such as water shrews, blue
herons, bald eagles, Indiana bats and goshawks; (6)
recreational impairment; (7) a need for environmental
impact statement; (8) an inadequate range of alternatives
and mitigation measures; and (9) an inadequate
environmental assessment.
In sum, the allegations raised in federal court concerning
the South Branch project can be grouped into two main
complaints: that the Forest Service violated the National
Forest Management Act,4 and that the Forest Service
violated NEPA.5
_________________________________________________________________
4. Kleissler contends that the Forest Service violated the National Forest
Management Act by failing to fulfill its duty to: conserve soil and water;
maintain the diversity of plant and animal communities; protect the
habitat of endangered species; consider the "potential effects on residual
trees and adjacent stands"; protect "water quality and quantity and
wildlife and fish habitat, forage production, recreation uses, and
aesthetic values"; "consider alternatives to even-aged management for
the project area"; consider the "environmental, biological, aesthetic, and
other impacts of the proposed even-aged cutting";"limit the use of even-
aged management to exceptional circumstances"; and "insure that
authorized logging will be carried out in a manner consistent with the
protection of soil, watershed, fish, wildlife, recreation, and aesthetic
resources, and regeneration of the timber resource."
5. Kleissler contends that the Forest Service violated NEPA by (1) failing
to file an environmental impact statement based on: the size of the area
6
The District Court concluded that the issues raised in the
administrative notices of appeal differed significantly from
the claims raised in the District Court complaint. Therefore,
the court granted summary judgment in favor of the Forest
Service and other defendants.
II.
The first question is whether Kleissler has exhausted
administrative remedies. Plaintiffs generally must exhaust
administrative remedies. See Southwestern Pa. Growth
Alliance v. Browner, 121 F.3d 106, 112 (3d Cir. 1997). It is
axiomatic that we cannot review "issues that have not been
passed on by the agency . . . whose action is being
reviewed." New Jersey v. Hufstedler, 724 F.2d 34, 36 n.1
(3d Cir. 1983), rev'd on other grounds, 470 U.S. 632, 105 S.
Ct. 1555 (1985). As we noted in Southwestern
Pennsylvania, federal court consideration of the myriad of
issues raised in a complaint "without the benefit of the
[agency's] expert input . . . would undermine a fundamental
principle of our system of judicial review of administrative
decisions." 121 F.3d at 112. We follow this approach
because it will: (1) avoid "premature interruption of the
administrative process," (2) allow the agency to"develop the
necessary factual background," (3) give the agency the "first
chance" to exercise its discretion, (4) properly defer to the
agency's expertise, (5) provide the agency with an
opportunity "to discover and correct its own errors," and (6)
deter the "deliberate flouting of administrative processes."
McKart v. United States, 395 U.S. 185, 194-95, 89 S. Ct.
_________________________________________________________________
of logging, "the exclusive use of even-aged management," the use of
herbicides, the potential impact on "specially protected animal species,
including the Indiana Bat," the degradation of streams, the impact on
recreational activities, the cumulative effect of the South Branch project
with other "timber-cutting projects in the [Allegheny National Forest]"
and "the extent of public interest"; (2) failing to consider the South
Branch project and Mortality II project together as major federal action
requiring an environmental impact statement; (3) failing to consider
alternatives; (4) performing an inadequate environmental assessment; (5)
improperly "tiering" the environmental assessment; and (6) acting
arbitrarily by failing to consider relevant factors and other
alternatives.
7
1657, 1662-63 (1969). Moreover, we "usurp[ ] the agency's
function when [we] set[ ] aside the administrative
determination upon a ground not theretofore presented" to
the agency. Unemployment Compensation Comm'n v.
Aragon, 329 U.S. 143, 155, 67 S. Ct. 245, 251 (1946).
Here, the statute is very specific. In conjunction with the
exhaustion provisions, Forest Service regulations require
that "the Responsible Official must consider all written
comments," 36 C.F.R. S 215.6(c)(2)(emphasis added), "a
person must submit a written appeal to the Appeal
Deciding Officer" to have objections considered, id.
S 215.13(a) (emphasis added), "interested parties must
submit written comments to the Appeal Reviewing Officer,"
id. S 215.13(e) (emphasis added), and administrative appeal
notices must "provide sufficient written evidence and
rationale to show why the Responsible Official's decision
should be remanded or reversed." Id. S 215.14 (emphasis
added). Mere vague references or conclusory statements do
not meet the statutory requirements. Rather,
an appeal must . . . (4) identify the specific change(s)
in the decision that the appellant seeks or portion of
the decision to which the appellant objects; (5) state
how the Responsible Official's decision fails to consider
comments previously provided, either before or during
the comment period specified in S 215.6 and, if
applicable, how the appellant believes the decision
violates law, regulation, or policy.
Id. S 215.14.
The U.S.D.A. Reorganization Act of 1994, section 212(e)
provides that "a person shall exhaust all administrative
appeal procedures established by the Secretary or required
by law before the person may bring an action in a court of
competent jurisdiction against (1) the Secretary; (2) the
Department; or (3) an agency, office, officer, or employee of
the Department." 7 U.S.C. S 6912(e). Importantly, 36 C.F.R.
S 215.20 advises that "unless waived in a specific case, it is
the position of the Department of Agriculture that any filing
for Federal judicial review of a decision subject to review
under this part is premature and inappropriate unless the
plaintiff has first sought to invoke and exhaust the
procedures available under this part."
8
Similarly, 36 C.F.R. S 217, which governs the appeal of
National Forest Land and Resource Management Plans,
requires written notices of appeal that must
[i]dentify specifically that portion of the decision or
decision document to which the requestor objects;
[s]tate the reasons for objecting, including issues of
fact, law, regulation, or policy, and, if applicable,
specifically how the decision violates law, regulation, or
policy; and [i]dentify the specific change(s) in the
decision that the appellant seeks
36 C.F.R. SS 217.8, 217.9.
And,
[t]he review of decisions appealed under this part
focuses on the documentation developed by the
Deciding Officer in reaching decisions. The records on
which the Reviewing Officer shall conduct the review
consists of the notice of appeal, any written comments
submitted by intervenors, the official documentation
prepared by the Deciding Officer in the decision-
making process, the Deciding Officer's letter
transmitting those documents to the Reviewing Officer,
and any appeal related correspondence, including
additional information requested by the Reviewing
Officer pursuant to S 217.13 of this part.
Id. S 217.15 (emphasis added). Again, the Department of
Agriculture notes that its position is "that anyfiling for
Federal judicial review of a decision subject to review under
this part is premature and inappropriate unless the plaintiff
has first sought to invoke and exhaust the procedures
available under this part. This position may be waived upon
written a written finding by the Chief [of the Forest
Service]." Id. S 217.18.
The policy underlying these regulations is simple:
objections and issues should first be reviewed by those with
expertise in the contested subject area. See McKart, 395
U.S. at 194-96, 89 S. Ct. at 1663-64; Southwestern
Pennsylvania, 121 F.3d at 112. Proper written notice fully
alerts the responsible agency to the appellant's objections.
See Glisson v. United States Forest Serv., 55 F.3d 1325,
9
1327 (7th Cir. 1995) (noting that an "agency cannot
evaluate the strength of the objection" if the objector has
not given a statement of reasons).
Kleissler urges us to take a flexible and liberal view of the
exhaustion of remedies requirement such that any
reference during the administrative appeals process to
issues related to claims set forth in the federal complaint
satisfies the exhaustion requirement. Kleissler specifically
asks us to consider the audiotaped discussions held during
the informal disposition meetings. The statute simply does
not permit us to do that. Moreover, to do so wouldflex the
statutes and regulations beyond recognition. Our view can
be neither restrictive nor expansive, rather, we must be
precise in following the law. It is abundantly clear by the
plain language of the applicable statutes and regulations
that the Forest Service must be given written notice of an
objector's challenges. Therefore, we will consider only those
allegations and comments contained in written
documentation and correspondence to the Forest Service.
Moreover, we hold that the claims raised at the
administrative appeal and in the federal complaint must be
so similar that the district court can ascertain that the
agency was on notice of, and had an opportunity to
consider and decide, the same claims now raised in federal
court.6 We are admonished that:
_________________________________________________________________
6. Kleissler asserts that because he was unrepresented by counsel
during the administrative process preceding approval of the Minister
Watershed and South Branch projects, we should relax the harshness of
the exhaustion requirements. This contention is unavailing. We see no
reason to relax a defined standard simply because the parties who failed
to follow the law chose not to be represented by counsel during the
administrative appeal. Kleissler is not a neophyte to the administrative
appeal process. To the contrary, the Allegheny Defense Project, of which
Kleissler is a founding member, professed that it employs the "Paper
Monkeywrench" tactic to protect the ecological integrity of the region.
The group's website described its "Paper Monkeywrench" methods as
responding to scoping letters "with comments and . . . public input"
such that the Forest Service has "more work to do." The site also
instructed that another common tactic is to appeal the final decision of
the Forest Service "within 45 days trying to demonstrate either how [the
Forest Service] ha[s] not followed the Forest Plan or how they have
10
administrative proceedings should not be a game or a
forum to engage in unjustified obstructionism by
making cryptic and obscure reference to matters that
``ought to be' considered and then, after failing to do
more to bring the matter to the agency's attention,
seeking to have that agency determination vacated.
Vermont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, Inc., 435 U.S. 519, 553-54, 98 S. Ct. 1197,
1217 (1978).
A. Minister Watershed Project
As for the Minister Watershed project, Kleissler's
administrative notice of appeal is limited in scope to claims
concerning the Indiana Bat, the Migratory Bird Treaty Act,
the failure of the Land and Resource Management Plan to
address the needs for "sensitive species in the project area,"
and the failure to respond to public concerns and
comment. In contrast, the federal complaint alleges
violations of NEPA and the National Forest Management Act
predicated on alternatives to even-aged management and
the need for an Environmental Impact Study. As the
District Court correctly observed, Kleissler's federal action
chiefly alleges that an Environmental Impact Statement of
the Minister Watershed project must be prepared because
of:
(1) the Minister Project's relationship to the landscape
corridor; App. 3212-15; Summary Judgment Brief
at II.A.;
(2) the likelihood of cumulative or synergistic adverse
environmental effects attributable to forest
fragmentation; App. 3215-16; S.J. Br. at II.B;
(3) the relationship of the Minister Project to the
North Country National Scenic Trail; App. 3216-
17; S.J. Br. at II.C.;
_________________________________________________________________
violated some aspect of NEPA." Finally, the Defense Project encouraged
its web site readers to "ask [the Allegheny National Forest Supervisor] to
put you on the mailing list for ALL districts of the[Allegheny National
Forest] . . . . Now you can start your own Paper Monkeywrenching!" App.
3432.
11
(4) concerns with respect to herbicides and water
quality; App. 3217-19; S.J. Br. at II.D.; and
(5) the public comments submitted in response to the
Draft Environmental Assessment; App. 3220-21;
S.J. Br. at II.E.
See Kleissler, No. 97-2187, slip op. at 21-22.
These claims are not the same. These objections were
raised during the administrative appeal:
(1) The Forest Service violated the Endangered
Species Act and NEPA by insufficiently analyzing
the potential effects of the proposed timber sale on
the Indiana Bat. App. 3030-34; Notice at 2-13;
(2) The Forest Service violated the Migratory Bird
Treaty Act by permitting logging to occur during
the nesting season for migratory birds, app. 3041-
42, and violated NEPA by failing to prepare an
environmental impact statement in connection
with its decision on the Migratory Bird Treaty Act.
App. 3042-43;
(3) The Forest Service failed to amend the Land and
Resource Management Plan to provide population
objectives for sensitive species in the project area.
App. 3043-44;
(4) The Forest Service violated NEPA by failing to
adequately respond to public comments. App.
3044-46.
At most, the claims raised in federal court were only
vaguely and cryptically referred to, if at all, during the
administrative appeal. Therefore, the required correlation is
sorely lacking. Thus, we conclude that Kleissler has failed
to meet the statutorily imposed exhaustion requirements as
to the Minister Watershed project claims.
B. South Branch Project
The South Branch project claim is arguably more
difficult, in part because Kleissler raised more objections
and challenges to the South Branch project than the
Minister Watershed project during the administrative
12
appeal. Nevertheless, we conclude that although numerous,
the challenges and objections raised during the
administrative appeal again differ from the claims raised in
federal court, and the administrative agency had no
opportunity to develop an adequate record for review. As
the District Court correctly observed, Kleissler raised the
following objections in the administrative notice of appeal
for the South Branch Project:
(1) The Forest Service failed to include in th e
Environmental Assessment an analysis of the
economic impact of recreation on the local
economy. App. 3088-89; Notice at 2-3;
(2) The Forest Service failed to sufficientl y define
"significant impact" in the Decision Notice and
Finding of No Significant Impact and failed to
conclude that decreased forest health due to edge
effect is significant. App. 3089; Notice at 3;
(3) The Forest Service violated NEPA by failin g to be
sufficiently well-informed on the effects of forest
disease and pests on the forest, app. 3089-90;
Notice at 3-4, and on the effects of logging. App.
3090-91; Notice at 4-5;
(4) The Forest Service failed to sufficientl y consider
the effects of logging on microorganisms, app.
3091; Notice at 5, the loss of nutrients from
logging, see id., and the cumulative impact of the
Porter Hollow Project. App. 3092; Notice at 6;
(5) The amount of dead wood and trees needed f or
wildlife nesting will be insufficient. App. 3091-92;
Notice at 5-6;
(6) The Forest Service has made inconsistent
statements on the effects on fertilizer and
herbicides; App. 3092; Notice at 6;
(7) The Forest Service's information on
nonmerchantable versus merchantable trees is
unreliable and inconsistent, see id.;
(8) The Forest Service violated NEPA by failin g to
conduct site-specific analyses for activities
13
occurring outside of the project area such as road
construction, see id.;
(9) The Forest Service failed to consider pote ntial
fragmentation caused by roads. App. 3093; Notice
at 7;
(10) The Forest Service failed to observe beaver dams,
see id.;
(11) The Forest Service violated the appeal regulations
by restricting public comments to "site-specific"
comments. App. 3093-94; Notice at 7-8;
(12) The Forest Service violated the Endangered
Species Act and NEPA by insufficiently analyzing
the potential effects on the Indiana Bat. App.
3094-3110; Notice at 8-24;
(13) The Forest Service violated the Migratory Bird
Treaty Act, app. 3110; Notice at 24, and NEPA by
failing to prepare an Environmental Impact
Statement in connection with its decision on the
Migratory Bird Treaty Act. App. 3110-11; Notice
at 24-25;
(14) The Forest Service failed to amend the Land and
Resource Management Plan to provide population
objectives for sensitive species. App. 3111-12;
Notice at 25-26.
Kleissler, No. 97-2187, slip op. at 22-24.
In contrast, as the District Court correctly concluded,
Kleissler raised the following issues in the Complaint filed
with the federal court:
(1) The South Branch Project, as approved by the
Decision Notice/Finding of No Significant Impact,
allegedly violates the National Forest Management
Act and its regulations, including the requirements
that forest projects:
(a) conserve soil and water resources and not allow
significant or permanent impairment of the
productivity of the land;
14
(b) provide for and maintain diversity of plant and
animal communities;
(c) include adequate measures to prevent the
831adverse modification of the habitat of the
threatened and endangered species;
(d) consider potential effects on residual trees and
adjacent stands; and
(e) protect against deleterious effects on water
quality and quantity, wildlife and fish habitat,
forage production, recreation uses, and aesthetic
uses.
App. 3152-53; Compl. P 55. Kleissler, No. 97-2187, slip op.
at 24.
(2) The South Branch Project allegedly violates the
National Forest Management Act because the
Forest Service:
(a) failed to formally consider alternatives to even-
aged management;
(b) failed to carefully analyze potential
environmental, biological, aesthetic and other
impacts from the proposed even-aged cutting
and the consistency of the project with the
multiple use of the area;
(c) failed to limit the use of even-aged management
to exceptional circumstances; and
(d) failed to insure that logging will be carried out
consistent with the protection of soil, watershed,
fish, wildlife, recreation, aesthetic resources, and
regeneration of timber.
App. 3l53; Compl. PP 56-57; Kleissler, No. 97-2187, slip op.
at 24-25.
(3) The Forest Service allegedly violated NEPA by
failing to prepare an Environmental Impact
Statement for the South Branch Project, App.
3154-55; Compl. PP 58-62, failing to study,
develop and describe an adequate range of
alternatives and mitigation measures for the South
15
Branch Project, see App. 3156, Compl. PP 66-69,
failing to prepare an adequate Environmental
Assessment, App. 3156-57; Compl. PP 70-72, and
improperly tiering7 the South Branch
Environmental Assessment to the Environmental
Assessment for the Klondike Opportunity Area.
App. 3157; Compl. PP 773-76.
(4) The Forest Service should have considered the
cumulative impacts of the South Branch Project
and the Mortality II Project. App. 3155-56; Compl.
PP 63-65.
(5) The Forest Service violated the APA by acting
arbitrarily and capriciously in failing to adequately
consider the potential environmental effects of the
project and reasonable alternatives. App. 3158-59;
Compl. PP 77-81.
Kleissler, No. 97-2187, slip op. at 26-27.
Although closer, nonetheless the challenges raised during
the administrative appeal did not sufficiently place the
Forest Service on notice, giving it an opportunity to address
all of the allegations ultimately raised in federal court.
Because the issues raised by Kleissler in federal court are
not the same as those raised in the notice of appeal for the
South Branch project, Kleissler failed to exhaust the
administrative remedies.
III.
Kleissler contends nonetheless that the dismissal should
have no effect on the allegations that the Landscape
Decision is an unlawful forest-wide management
determination and therefore the Minister Watershed and
South Branch projects are illegal. Kleissler argues that his
landscape corridor claims, regarding areas of the Allegheny
National Forest encompassed within the Minister
Watershed and South Branch projects, survive because
Forest Service policy and rules prohibited Kleissler from
_________________________________________________________________
7. "Tiering" is the incorporation of documents by reference when
preparing environmental assessments for site-specific projects.
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raising these claims during the administrative process.
Specifically, Kleissler contends that "in May 1995 or at any
subsequent time [there were no] administrative procedures
for appealing an agency action like the Landscape
Decision." Appellant's Br. at 45. We disagree.8
A Landscape Corridor Approach provides the general
recommendation or framework for implementing Forest
Plan objectives. The specific plans for implementing the
general recommendation are the individual forest
management projects. It is during the planning stage of the
site-specific projects that the public is afforded an
opportunity "to provide specific comments on each
decision." A Landscape Approach to Providing Late-
Successional Forests and Associated Functions and Values
on the Allegheny National Forest, App. 1843. Because
achieving the goals set forth in the Landscape Corridor
Approach is necessarily dependent on the site-specific
projects, we find the Supreme Court's decision in Ohio
Forestry Ass'n, Inc. v. Sierra Club, 118 S. Ct. 1665 (1998),
instructive.
In Ohio Forestry, the Court addressed whether an
environmental group could maintain a claim alleging that a
Land and Resource Management Plan permitted too much
logging and clear-cutting in a national forest. See id. at
1668. Without reaching the merits, the Court concluded
that the controversy was not yet ripe for judicial review and
ordered that the case be remanded and dismissed. See id.
at 1673. Before reaching its decision, however, the Court
advised that challenges to Land and Resource Management
Plans are more appropriately brought as "challenges to
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8. We note that this contention contradicts Kleissler's earlier assertion
that "the basic issues related to the design and location of the corridor
were in fact raised in the two specific project appeals at issue in this
case." Plaintiff 's Br. in Support of the Cross-Motion for Summary
Judgment on Claims Related to the Landscape Decision at 3; App.7. This
argument also contradicts Kleissler's argument that we adopt a broad,
flexible and liberal interpretation of Forest Service Regulations. Here,
Kleissler seems to encourage a strict and narrow reading of the Forest
Service Regulations. Once again, we take neither an expansive nor
restrictive approach to the law. Rather, our role is to apply the law with
precision.
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each site-specific logging decision" which could have a
preclusive effect on other site-specific plans and therefore
"effectively carry the day." Id. at 1671 (citing Lujan v.
National Wildlife Fed'n, 467 U.S. 871, 894, 110 S. Ct. 3177,
3191-92 (1990)). Thus, although the Supreme Court did
not address the specific issue raised here, we read Ohio
Forestry as requiring that objections to Land and Resource
Management Plans be made during the administrative
process conducted for each site-specific plan. Therefore,
contrary to Kleissler's assertions that the Landscape
Decision does not fall within 36 C.F.R. SS 215 or section 217,9
_________________________________________________________________
9. 36 C.F.R. S 215.7 states:
Decisions subject to appeal
Only the following decisions are subject to appeal under this part:
(a) Project and activity decisions documented in a Record of
Decision or Decision Notice, including those which, as a part of
the
project approval decision, contain a nonsignificant amendment to a
National Forest Land and Resource Management Plan
(b) Timber harvest project and activity decisions as described in
paragraph 4, Section 31.2 of the Forest Service Handbook 1909.15
which are documented in a decision memo.
36 C.F.R. S 215.8 notes that "(a) [t]he following decisions are not
subject
to appeal under this part: (1) Project or activity decisions included in a
Record of Decision for significant amendment, revision, or approval of a
land and resource management plan, appeal of which is governed by 36
C.F.R. section 217."
36 C.F.R. S 217.3 states in pertinent part:
Decisions subject to appeal.
(a) The following decisions are subject to appeal under this part:
(1) Decisions to approve, amend, or revise a National Forest Land
and Resource Management Plan including project or activity
decisions for which environmental effects have been analyzed and
disclosed in a Record of Decision including approval, significant
amendments, or revisions of a land and resource management plan.
36 C.F.R. S 217.4 advises that "[t]he following decisions are not subject
to appeal under this part. (a) Decisions on projects or activities
implementing National Forest Land and Resource Management Plans
including project decisions that include a non-significant amendment to
a National Forest Land and Resource Management Plan."
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we conclude that claims concerning the Landscape
Decision's effect on the areas encompassed by the Minister
Watershed and South Branch Project areas should have
been raised at the same time Kleissler brought his site-
specific objections to the attention of the Forest Agency.
Kleissler contends that the Forest Service prohibited him
from asserting concerns with the Landscape Decision
during the administrative process for the Minister
Watershed and South Branch projects. That is not so.
Although the District Ranger and Appeal Reviewing Officer
encouraged specific comments, the issues raised and
addressed were not limited to site-specific comments. In
fact, the record shows that the public raised concerns
about the Landscape Corridor and that the Forest Service
responded to these complaints. See, e.g., Table G-D, App.
2416-18. When the Forest Service did decline to respond to
forest wide concerns, or stated that a challenge was beyond
the scope of this project, it did so in response to comments
general in nature that related to forest or national issues
more appropriately addressed at the national level through
a change in the laws that set policy for the national forests.
See, e.g., Table G-B, App. 2403 Public Comment B.1 ("[t]he
issue of the impact of the song bird declines on forest
growth needs to be addressed"); Response B.1 ("We believe
that what you actually wish to question is the opposite; or,
the relationship between the age of forested stands and bird
populations, the inference being that an increase in early
successional habitat leads to declines in songbird
populations. This is a regional and forest-wide issue and
beyond the scope of the [Environmental Assessment]. For
the past six years, the [Allegheny National Forest] has been
conducting breeding bird surveys in 11 different habitats
across the forest."); Response B.2 (explaining that
comments such as "Don't log public forests" is an example
of a comment that must be addressed at the national level).
Moreover, as the Brief for Defendant-Intervenors points
out, Kleissler's grievance is not with the Landscape Corridor
Approach, per se. The grievance actually concerns
implications of the Landscape Corridor on areas outside of
and adjacent to the Corridor. Accordingly, these are
concerns that could appropriately be raised during the
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administrative process of the specific site plans. Therefore,
our conclusion that Kleissler failed to exhaust his
administrative remedies encompasses Kleissler's claims
concerning the Landscape Decision as they relate to the
Minister Watershed and South Branch project areas.
IV.
In sum, the plain language of the applicable statutes and
Code of Federal Regulations precludes an objector to a
forest management project from bringing a claim to federal
court without first exhausting all administrative remedies.
Forest Service regulations mandate that all concerns be
placed in writing and submitted to the appropriate
reviewing officer. We are not at liberty to relax these
standards. A side-by-side comparison of the claims raised
during the administrative appeal of the South Branch and
Minister Watershed projects shows that Kleissler failed to
exhaust the administrative remedies requirements. The
District Court properly dismissed these claims. Because
Kleissler's challenges to the effects of the Landscape
Corridor Approach on areas outlying the Corridor relate to
the plans for site-specific projects, we likewise conclude
that Kleissler could have, and should have, raised them
during the administrative process for the Minister
Watershed and South Branch projects. Accordingly, we
affirm.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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