By: Cameron Coyle

On September 12, Kentucky Heartwood (a forest advocacy group based in Berea, Kentucky) filed a lawsuit against the U.S. Forest Service for affirming the South Red Bird Wildlife Enhancement Project.[i] The project, consisting of commercial and non-commercial tree-thinning, is aimed at providing an economic benefit to the area while also improving the habitat in Daniel Boone National Forest.[ii] The project, according to the plaintiffs, would eliminate between 80% to 90% of the trees within a 2,800-acre area.[iii]

The complaint alleges that the defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by “failing to consider any alternatives,” including alternatives suggested by public comment and “mid-range alternatives that would reduce impacts to sensitive resources.”[iv] The complaint further alleges that the U.S. Forest Service mischaracterized areas of Daniel Boone National Forest and “excluded relevant data” when it decided to move forward with the project.[v] The complaint also states the defendants violated the Endangered Species Act (ESA) by not using the most accurate data regarding the impact of the project on the Indiana Bat, a federally endangered species.[vi]

The complaint also encompasses a claim alleging that the defendants violated the National Forest Management Act (NFMA) by ignoring forest plan standards, including DB-VEG 26, which states, “No more than 10 percent of a harvest area should be in landings, skid roads, or exposed soil.”[vii] The altering of land by roads is more likely to cause landslides, and Kentucky Heartwood stated in an objection filed during notice and comment that it had documented three recent, large landslides in Daniel Boone National Forest.[viii] According to the complaint, Kentucky Heartwood’s issues with the potential of future landslides was called a “non-issue” by U.S. Forest Supervisor Scott Ray.[ix]

One of Kentucky Heartwood’s claims about the violation of the APA is brought under 5 U.S.C. § 706.[x] Section 706(2)(a) states an agency’s action is unlawful if its decision is found to be “arbitrary,” “capricious,” or “an abuse of discretion or otherwise not in accordance with law.”[xi] Additionally, 5 U.S.C. § 706(2) states “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.”[xii]

If Kentucky Heartwood can successfully argue that the U.S. Forest Service acted arbitrarily or capriciously by using erroneous data when planning the South Red Bird Wildlife Enhancement Project, then the project should be deemed unlawful.[xiii] This is not the most likely outcome, however. In George v. Bay Area Rapid Transit, the Court wrote “a decision is arbitrary and capricious if the agency [1] has relied on factors which Congress has not intended to consider, [2] entirely failed to consider an important aspect of the problem, [3] offered an explanation for its decision that runs counter to the evidence before the agency, or [4] has offered an explanation so implausible that it could not be ascribed to a different view or product of agency expertise.”[xiv] Black’s Law Dictionary defines arbitrary as “Not supported by fair, solid, and substantial cause, and without reason given,”[xv] and defines capricious as “Given to sudden and unaccountable changes of mood or behavior.”[xvi] The U.S. Forest Service’s determinations for the project were supported by its own metrics and tests.[xvii] While Kentucky Heartwood alleges these tests were inaccurate and flawed in their methodology, it does not inherently mean the agency operated without reason or acted with unaccounted behavioral changes.

The U.S. Forest Service would only need to have considered Kentucky Heartwood’s issues with the South Red Bird Wildlife Enhancement Project for the organization to have passed the statutory requirements, even if the end result was a complete dismissal of Kentucky Heartwood’s concerns.[xviii] If the U.S. Forest Service was made aware that Kentucky Heartwood believed there were better testing methods, but ultimately found its own methodology was more efficient then there will be no legal repercussions.[xix] This potential outcome, when viewed in accordance with 5 U.S.C. § 706, does not meet the burden required by the statute to prove that the U.S. Forest Service acted arbitrarily and capriciously.[xx]

Any lawsuit against a government agency is an uphill battle, and Kentucky Heartwood’s chance of victory seems doubtful. In Marsh v. Oregon Natural Resources Council, Justice Stevens wrote:

When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive. On the other hand…courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance—or lack of significance—of the new information.[xxi]

The U.S. Forest Service can claim it made “a reasoned decision” based off its own data and testing regarding the environmental impacts of the South Red Bird Wildlife Enhancement Project. To defeat this, Kentucky Heartwood would likely have to prove the U.S. Forest Service purposefully manipulated its testing and methodology in order to expand the South Red Bird Wildlife Enhancement Project beyond its legal boundaries (an example of this can be seen when Johnson and Johnson purposefully used certain tests for their baby powder that would not reveal the product contained tremolite).[xxii] The project’s biggest critics believe the project was approved to maximize profits for logging, and that sound testing and research would prove the project will cause more landslides and affect endangered species – something the government has allegedly refused to consider.[xxiii] However, the U.S. Forest Service has its own research supporting its decision, and the agency should be afforded deference for this determination.[xxiv]

Similarly, the U.S. Forest Service also did not seem to violate NEPA. Section 4344(5) states the agency must “conduct investigations, studies, surveys, research, and analyses relating to ecological systems and environmental quality.”[xxv] The U.S. Forest Service conducted the research it deemed necessary. This research did not pass Kentucky Heartwood’s standards, but that is not enough to make the agency’s actions illegal, as this part of the statute does not specify the scope or number of investigations, studies, surveys, or research that must take place.[xxvi]

The reality of the situation will upset most environmental activists. It would require a tremendous blunder by the government for one of its plans impacting a national forest to be found unlawful. If it was found that government testing and research was thoroughly flawed, then the plaintiffs here may be able to make a case that the agency acted arbitrarily. A win for Kentucky Heartwood isn’t impossible, just improbable.

[i] Bill Estep, Environmental group sues U.S. Forest Service over planned Kentucky logging, Lexington Herald-Leader (Sept. 23, 2022, 8:09 AM), https://www.kentucky.com/article266215311.html.

[ii] India Jones, Environmental group sues US Forest Service over planned logging project in Kentucky, WYMT (Sept. 23, 2022, 12:14 PM), https://www.wymt.com/2022/09/23/environmental-group-sues-us-forest-service-over-planned-logging-project-kentucky/ [https://perma.cc/SJJ8-LMSZ].

[iii] Kentucky Heartwood files lawsuit challenging nearly 3,800 acres of logging in Daniel Boone National Forest, Kentucky Heartwood (Sept. 14, 2022), https://www.kyheartwood.org/forest-blog/kentucky-heartwood-files-lawsuit-challenging-south-red-bird-project [https://perma.cc/46HH-PY7N].

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.; Predecisional Objection of the Environmental Assessment, Draft Decision Notice, and FONSI for the South Red Bird Wildlife Habitat Enhancement Project, Kentucky Heartwood (Oct. 5, 2020), https://www.kyheartwood.org/uploads/2/1/1/6/2116789/south_redbird_objection_khw.pdf [https://perma.cc/P7MV-WCA7].

[viii]Predecisional Objection of the Environmental Assessment, Draft Decision Notice, and FONSI for the South Red Bird Wildlife Habitat Enhancement Project, supra note vii.

[ix] Kentucky Heartwood, supra note iii.

[x] Id.

[xi] 5 U.S.C. § 706.

[xii] Id.

[xiii] Id.

[xiv] George v. Bay Area Rapid Transit, 577 F.3d 1005, 1010 (9th Cir. 2009).

[xv] Arbitrary Definition & Legal Meaning, The L. Dictionary, https://thelawdictionary.org/arbitrary/ (last visited Nov. 26, 2022) [https://perma.cc/L23G-3ETY].

[xvi] Capricious Definition & Legal Meaning, The L. Dictionary, https://thelawdictionary.org/capricious/ (last visited Nov. 26, 2022) [https://perma.cc/C295-DSNQ].

[xvii] South Red Bird Wildlife Habitat Enhancement Project, U.S. Forest Service, https://www.fs.usda.gov/project/?project=52340 [https://perma.cc/BG9B-BDWQ]. See also Mac A. Cherry & Dr. Claudia Cotton, South Red Bird Project: Soil & Water Report, U.S. Forest Serv. (Jan. 27, 2020), https://www.fs.usda.gov/project/?project=52340 [https://perma.cc/E8NH-YH2L].

[xviii] 5 U.S.C. § 706.

[xix] Id.

[xx] Id.

[xxi] Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989).

[xxii] Genna Reed et al., The disinformation playbook: how industry manipulates the science-policy process—and how to restore scientific integrity, 42 Journal of Public Health Policy 622, 624 (2021).

[xxiii] Kentucky Heartwood files lawsuit challenging nearly 3,800 acres of logging in Daniel Boone National Forest, supra note iii.

[xxiv] South Red Bird Wildlife Habitat Enhancement Project, supra note vii. See Cherry & Cotton, supra note xvii. See also Affected Environment of the South Red Bird Wildlife Habitat Enhancement Project, U.S. Forest Serv. (Nov. 2019), https://www.fs.usda.gov/project/?project=52340 [https://perma.cc/CDM2-P9JS].

[xxv] 42 U.S.C. § 4344.

[xxvi] Id.