IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CHATTOOGA CONSERVANCY, CENTER )

FOR BIOLOGICAL DIVERSITY, )
DEFENDERS OF WILDLIFE, )
MOUNTAINTRUE, and SIERRA CLUB )
)
Plaintiffs, )
)
v. ) Civil Case No. ___________
)
THE UNITED STATES FOREST SERVICE, )
and TROY WASKEY IN HIS OFFICIAL ) COMPLAINT
CAPACITY AS DISTRICT RANGER FOR )
THE NANTAHALA DISTRICT OF THE )
NANTAHALA NATIONAL FOREST, )
)
Defendants. )
)
)

INTRODUCTION

1. This action challenges a decision—the “Southside Project”—by the United States

Forest Service to commercially log within a Forest Service–designated “exceptional ecological

community” on the Nantahala National Forest. The imminent logging is inconsistent with the

Nantahala National Forest’s governing management plan and therefore violates the National

Forest Management Act.

2. The area subject to this lawsuit is small but of remarkable ecological importance.

The State of North Carolina, through its Natural Heritage Program, has designated the area as an

“exceptional” Natural Heritage Natural Area due to the presence of rare species and exemplary

ecological communities. Natural Heritage Natural Areas are areas “of special biodiversity

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significance,” and “exceptional” is the highest rank given by the State. The Forest Service has

also designated the area an “exceptional ecological community.” And the area is adjacent to the

Whitewater River, a trout stream that, to quote the Forest Service, has “unique features that are

not found anywhere else in the Southern Appalachians, or in the Eastern United States” and is

eligible for “scenic” status under the Wild and Scenic Rivers Act.

3. Because of these exceptional values, the Forest Service’s logging plans for this

area have been contested on two fronts: through development of the Southside Project itself and,

simultaneously, through the separate process of revising the Nantahala–Pisgah Forest Plan.

4. The National Forest Management Act requires each national forest to be governed

by a forest-specific Land and Resource Management Plan, often called a “forest plan.” Among

other things, forest plans decide what activities—such as logging, recreation, and mining—may

occur in which parts of a national forest, under what conditions, and for what reasons. The Forest

Service then develops “projects” to implement the forest plan. Pursuant to the National Forest

Management Act, all Forest Service actions, including logging projects, must be consistent with

the governing forest plan.

5. Because Congress has directed that forest plans be revised periodically, the Forest

Service is occasionally in the position of developing a logging project while simultaneously

revising the underlying forest plan. That is what happened here. The Forest Service developed

the Southside Project under its 1987 Forest Plan for the Nantahala–Pisgah National Forests while

that plan was being revised. The Southside Project will now be implemented under the Forest

Service’s new, 2023 Forest Plan. When project development and implementation occur

alongside forest plan revision, the National Forest Management Act requires the Forest Service

to review projects that bridge the divide between the old and new forest plans for consistency

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with the new plan. Projects that are inconsistent with the new plan must be abandoned or

modified to ensure consistency with that plan.

6. Here, this means that the Southside Project may only move forward if it is

consistent with the Nantahala–Pisgah National Forests’ 2023 Forest Plan.

7. The Forest Service has planned to conduct heavy commercial logging within the

contested area since it proposed the Southside Project in 2017, prior to final revision of the

Forest Plan. Despite the ecological importance of the area and repeated requests from Plaintiffs

during development of the Southside Project, the Forest Service never abandoned its plans to log

this area. The logging risks destroying many—if not all—of the area’s special ecological values

identified by Plaintiffs, the State of North Carolina, and the Forest Service itself.

8. While Plaintiffs opposed the Forest Service’s logging plans during the Southside

Project’s development, they—along with the State of North Carolina—were also asking the

Forest Service to preserve this area’s exceptional values by placing it in a protective

“management area” as part of the separate forest plan revision process. National forests fulfill

their obligations under the National Forest Management Act, in part, by dividing forests into

different “management areas,” akin to zoning districts, and specifying which activities are

appropriate in each zone. Forest plan “standards” and other plan components then regulate

activities within each management area. Plaintiffs and the State of North Carolina repeatedly

asked the Forest Service to place the contested area into a management area with standards that

would preserve its outstanding ecological values and limit commercial logging that would

heavily damage those values.

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 9. For years, the Forest Service refused those requests as part of its overall effort

throughout the forest plan revision process to increase the proportion of the Nantahala–Pisgah

National Forests where commercial logging is minimally restricted.

10. The agency’s effort to expand logging is reflected in the final Nantahala–Pisgah

Forest Plan released in 2023. That Forest Plan calls for a quintupling of logging on a

significantly larger acreage footprint than the 1987 Plan, including in old-growth forests, rare

and exemplary wildlife habitats, and remote areas without roads. The 2023 Forest Plan, which

will govern projects like the Southside Project for decades, is in most respects inadequately

protective of the Nantahala–Pisgah National Forests’ ecological values. For that and other

reasons, approximately 14,000 people filed formal administrative objections to the Forest Plan.

But in one of the new Forest Plan’s few bright spots, the Forest Service—in response to the

consistent advocacy of Plaintiffs, the public, and the State—eventually completed biological

surveys of the area contested in this lawsuit, formally recognized its exceptional ecological

values, and placed it into the “Special Interest Area” management area.

11. The 2023 Forest Plan recognizes “Special Interest Areas” as “the most

exceptional ecological communities that serve as core areas for conservation of the most

significant and rare elements of biological diversity on the Forests.” To protect those values,

commercial logging is only allowed in this management area for narrow, specific reasons. The

logging contested in this lawsuit does not meet those criteria.

12. As a result, the logging is inconsistent with the 2023 Forest Plan and therefore

violates the National Forest Management Act. Despite Plaintiffs repeatedly bringing this

inconsistency to the agency’s attention—and despite the agency finally acknowledging the

exceptional ecological significance of this area—the Forest Service plans to plow ahead with its

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original logging plans anyway. Plaintiffs bring this legal challenge to prevent harm to an

exceptional part of the Nantahala National Forest where Plaintiffs have ecological, aesthetic,

scientific, recreational, and spiritual interests.

JURISDICTION, RIGHT OF ACTION, AND VENUE

13. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and may issue a

declaratory judgment and further relief pursuant to 28 U.S.C. §§ 2201–02. Judicial review is

available under the Administrative Procedure Act. 5 U.S.C. §§ 701–06.

14. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(1) because

Defendant U.S. Forest Service is an agency of the United States and the entirety of the events

giving rise to these claims occurred or will occur in the Western District of North Carolina.

PARTIES

Plaintiff Conservation Groups

15. The Chattooga Conservancy is a non-profit organization with the mission to

protect, promote and restore the natural ecological integrity of the Chattooga River watershed

ecosystems; to ensure the viability of native species in harmony with the need for a healthy

human environment; and to educate and empower communities to practice good stewardship on

public and private lands. The Chattooga Conservancy has approximately 300 members including

Buzz Williams, who has visited the area to be logged several times and has plans to visit again in

the future. Mr. Williams values this area for its aesthetic and ecological values—values that will

be harmed by the Southside Project. The Southside Project area has been a conservation priority

for the Chattooga Conservancy for many years due to its importance for rare species and water

quality in the Chattooga River basin.

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 16. The Center for Biological Diversity (or “the Center”) is a non-profit organization

with offices throughout the country, including in Asheville, North Carolina. The Center has

approximately 81,000 members throughout the United States, including in North Carolina. The

Center works to ensure the long-term health and viability of animal and plant communities

across the United States and elsewhere and to protect the habitat these species need to survive.

Its members include Will Harlan, who has visited the Southside Project area numerous times,

including the area authorized for logging. Mr. Harlan is particularly interested in viewing

wildlife in this area, including rare salamanders, and is concerned that the Southside Project will

disrupt his ability to do so. Nevertheless, Mr. Harlan plans to continue visiting the area. Other

Center for Biological Diversity members also recreate and study nature in the Southside Project

area.

17. The Sierra Club is a non-profit organization with approximately 1.7 million

members, including approximately 50,000 members and supporters in North Carolina. It is

dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and

promoting the responsible use of the earth’s ecosystems and resources; to educating and enlisting

humanity to protect and restore the quality of the natural and human environment; and to using

all lawful means to carry out these objectives. Members of the Sierra Club use the Nantahala

National Forest for recreation, subsistence, wildlife viewing, and other activities. This includes

David Reid, who has visited the Southside Project area and long worked to protect the Nantahala

National Forest. Mr. Reid values the Southside Project area and similar areas for their spiritual,

ecological, and aesthetic values. The Southside Project will disrupt Mr. Reid’s ability to enjoy

the Nantahala National Forest in the project area.

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 18. Defenders of Wildlife is a non-profit organization with its principal office in

Washington, D.C., and field offices throughout the country. Defenders of Wildlife has

approximately 2.2 million members and supporters, including Ben Prater and others in North

Carolina. The organization’s primary mission is to further the protection of native wildlife and

plants in their natural communities. Defenders of Wildlife has generally advocated for the

protection of Nantahala National Forest biodiversity as well as for specific species, including the

green salamander, the cerulean warbler, and the northern long-eared bat—all of which have

habitat that would be impacted by the Southside Project. Mr. Prater has visited the Southside

Project area and plans to do so again in the future. Logging this area will disrupt his ability to

view rare wildlife in the area and his ability to enjoy visiting this forest more generally.

19. MountainTrue is a non-profit organization with approximately 2,000 members

and 12,000 activists and supporters working to protect, restore, and preserve public lands and

native wildlife through education and public participation in decisions at all levels of

government. Based in Asheville and founded in 1982, MountainTrue has been deeply involved

in the management of the Nantahala National Forest since its inception. MountainTrue heavily

invested time and resources in the lengthy revision process resulting in the 2023 Nantahala–

Pisgah Forest Plan. It also commented on and administratively objected to the Southside Project.

MountainTrue’s members include Josh Kelly, who has visited the Southside Project area

multiple times and values the area for its intact forests and rare species. The Southside Project

will disrupt Mr. Kelly’s ability to enjoy this forest in its undisturbed state. He is also worried

about sedimentation of the Whitewater River likely to be caused by the project.

20. Plaintiffs (collectively “Conservation Groups”) and their members are familiar

with the Southside Project area and visit the area for recreational, aesthetic, and scientific

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purposes—including the specific area scheduled to be logged that is the focal point of this

lawsuit. Their members reside near, use, and appreciate the Southside Project area for its scenic

beauty and for remote hiking, boating, camping, wildlife viewing, spiritual renewal, and other

recreational and educational activities. Conservation Groups and their members have plans to

continue these activities in the Southside Project area and advocated that the area contested in

this lawsuit be placed into the Special Interest Area management area in the new forest plan to

preserve these experiences.

21. The Southside Project will directly and significantly affect Conservation Groups

and their members, including their use and enjoyment of the Whitewater River and the Southside

Project area. The logging and roadbuilding authorized in the portion of the Southside Project

relevant to this litigation will damage rare plant and animal habitats and it will degrade the scenic

quality of the Whitewater River Gorge due to tree removal and erosion. In addition, logging

would disrupt the forest’s unique microclimates and significantly harm the moist, cool, and

shaded habitats that make this an “exceptional” area for rare and sensitive species. The influx of

heat and light caused by canopy removal would desiccate these habitats and harm the species

that inhabit them, thereby injuring Conservation Groups’ members who enjoy observing those

species.

22. The interests of Conservation Groups and their members, which include the

protection and enjoyment of rare species, clean water, and outstanding natural values in both the

affected forest and adjacent river through recreation and scientific study, will be directly and

irreparably injured by the decision to log the forest at issue in this lawsuit.

23. To the extent required, Conservation Groups have exhausted all administrative

remedies.

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 Defendants

24. Defendant United States Forest Service is an agency of the United States

Department of Agriculture entrusted with the administration of the national forests, including the

Nantahala National Forest. The Nantahala and Pisgah National Forests are two separate national

forests but are managed as one unit. The Southside Project is located on the Nantahala National

Forest, but the 1987 and 2023 forest plans apply to the Pisgah and Nantahala National Forests

together.

25. Defendant Troy Waskey is sued in his official capacity as Nantahala District

Ranger in the Nantahala National Forest, a unit of the United States Forest Service. Mr.

Waskey’s predecessor as Nantahala District Ranger signed the Final Decision Notice and

Finding of No Significant Impact for the Southside Project.

LEGAL BACKGROUND

National Forest Management Act

26. The National Forest Management Act (“NFMA”) requires the Forest Service to

“develop, maintain, and, as appropriate, revise land and resource management plans for units of

the National Forest System.” 16 U.S.C. § 1604(a). These “forest plans” are to be revised every

fifteen years, id. § 1604(f)(5), although in practice they tend to last considerably longer, see, e.g.,

Pub. L. No. 117-328, div. G, title IV, § 407 (2022), 136 Stat. 4821 (codified at 16 U.S.C. § 1604

note) (extending the fifteen-year deadline so long as the agency is “acting expeditiously and in

good faith, within the funding” available to revise outdated forest plans). The Nantahala–Pisgah

National Forests’ Plan, first adopted in 1987, was amended in part several times but had not been

fully revised until 2023.

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 27. NFMA’s requirements for forest plan development and revision are implemented

through Forest Service regulations collectively known as the “Planning Rule.” See 36 C.F.R. §

219. The previous forest plan for the Nantahala–Pisgah National Forests, which was in place

when the Forest Service issued a final decision on the Southside Project, was adopted under the

1982 version of the Planning Rule.

28. By contrast, the 2023 Nantahala–Pisgah Forest Plan was developed under the

agency’s 2012 Planning Rule. In a major evolution from the 1982 Rule, the 2012 Rule requires

that forest plans “promote the ecological integrity of national forests.” 36 C.F.R. § 219.1 (2012).

Where the 1982 Rule’s requirements were focused merely on “mitigat[ing] harm” from activities

like logging, the agency recognized in adopting the 2012 Rule that “the focus of land

management has changed” and that plans should affirmatively “contribute to ecological, social,

and economic sustainability.” See 77 Fed. Reg. 21,162, 21,163–64 (Apr. 9, 2012). “[B]ecause

there are fundamental structural and content differences between the two rules,” using the 2012

Rule to revise a forest plan developed under the 1982 Rule should result in significant

improvements to that plan’s conservation of ecological values. See 81 Fed. Reg. 90,723, 90,724

(Dec. 15, 2016) (describing differences between the 1982 and 2012 planning rules).

29. Under NFMA and the agency’s Planning Rule, forest plans must “provide for

multiple use and sustained yield . . . and, in particular, include coordination of outdoor

recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1).

Forest plans balance these priorities by dictating the places and circumstances in which certain

activities are permissible, prohibited, or required.

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 30. Forest plans typically set these rules by identifying “management areas.” 36

C.F.R. § 219.7(d). A “management area” is a “land area identified within the planning area that

has the same set of applicable plan components.” Id. § 219.19.

31. Forest plan “components” set priorities or limitations for each management area.

See generally id. § 219.7(e). For example, a plan “standard” is a type of component that is a

“mandatory constraint on project and activity decisionmaking.” Id. § 219.7(e)(1)(iii).

32. Project decisions must not only comply with plan components; they must also

describe how they comply with plan components. Id. § 219.15(d).

33. Some management areas allow a wide array of logging activities for a wide range

of reasons. In other management areas, logging is limited or prohibited to protect valuable

ecological conditions or recreational values. Those restrictions are enforced through plan

components.

34. Pursuant to NFMA, all activities on a national forest “shall be consistent with the

[applicable forest plan].” 16 U.S.C. § 1604(i); see also Sierra Club, Inc. v. U.S. Forest Serv., 897

F.3d 582, 589 (4th Cir. 2018) (holding that 16 U.S.C. § 1604(i) requires site-specific Forest

Service projects to be consistent with the governing forest plan).

35. Accordingly, when each national forest adopted its initial forest plan, NFMA

expressly required that the “resource plans and permits, contracts, and other such instruments

currently in existence shall be revised as soon as practicable to be made consistent with such

plan[].” 16 U.S.C. § 1604(i). Similarly, when existing forest plans are revised, NFMA expressly

requires that “resource plans and permits, contracts, and other instruments, when necessary, shall

be revised as soon as practicable” to be consistent with the new, revised forest plan. Id.; see also

S. Rep. No. 94-893, at 17 (1976) (“Where resource plans or permits, contracts, and other legal

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instruments are in existence at the time a land management plan is approved, they will be revised

as soon as practicable to be made consistent. The same requirements pertain to existing

authorizations when a land management plan is revised.”).

36. “When a proposed project or activity would not be consistent with the applicable

plan components,” the Forest Service must modify the project or activity to make it consistent

with the forest plan, reject the proposed project or activity, or “amend the plan so that the project

or activity will be consistent with the plan as amended.” 36 C.F.R. § 219.15(c) (2012); see also

Habitat Educ. Ctr., Inc. v. Bosworth, 381 F. Supp. 2d 842, 859 (E.D. Wis. 2005) (“[W]hen the

agency revises a forest plan, it must also revise resource plans and other instruments, including

plans for timber sales that it approved under the old plan.”); Cherokee Forest Voices v. U.S.

Forest Serv., 182 F. App’x 488, 495 (6th Cir. 2006) (“[Section] 1604(i) requires the projects be

consistent with the revised Forest Plan . . . .”). Activities that are consistent with both the

previous and revised forest plan may proceed unchanged. See 36 C.F.R. § 219.15(a). Ultimately,

“[e]very project and activity must be consistent with the applicable plan components.” Id. §

219.15(d).

Administrative Procedure Act

37. The Administrative Procedure Act (“APA”) creates a right to judicial review for

any person wronged or aggrieved by a final agency action when there is no other adequate

remedy available. 5 U.S.C. §§ 702, 704. The APA requires a reviewing court to “hold unlawful

and set aside” a challenged agency action if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law.” Id. § 706.

38. Agency action is “arbitrary” or “capricious” if “the agency has relied on factors

which Congress has not intended it to consider, entirely failed to consider an important aspect of

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the problem, offered an explanation for its decision that runs counter to the evidence before the

agency, or is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983).

39. Agency action is “not in accordance with law” if it does not comply with

applicable legal standards, including regulations promulgated by the agency itself. See, e.g.,

Calderon v. Sessions, 330 F. Supp. 3d 944, 958 (S.D.N.Y. 2018) (holding agency violated APA

when it failed to comply with its regulations).

40. The reviewing court “may not supply a reasoned basis for the agency’s action that

the agency itself has not given.” State Farm, 463 U.S. at 43 (quoting S.E.C. v. Chenery Corp.,

332 U.S. 194, 196 (1947)). Agency action may only be upheld “on the basis articulated by the

agency itself.” Id. at 50.

FACTS

The Southside Project

41. The Southside Project is located near Cashiers, North Carolina, in the Nantahala

District of the Nantahala National Forest.

42. The Forest Service administratively tracks the conditions of portions of the

national forests using numbered “stands,” which are relatively small areas typically managed as a

single unit. Contiguous groups of “stands” comprise larger administrative units called

“compartments.”

43. The portion of the Southside Project contested here is a 15-acre stand, identified

as Compartment 41, Stand 53 of the Nantahala National Forest (“Stand 41-53”). This stand is

part of a landscape that has long been recognized for its exceptional ecological values.

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 44. Since the 1980s, the North Carolina Natural Heritage Program—a program of the

North Carolina Department of Natural and Cultural Resources—has surveyed and catalogued

ecologically significant lands within the state. These lands are classified as “Natural Heritage

Natural Areas,” or “Natural Areas.” In 1994, the State of North Carolina, through its Natural

Heritage Program, delineated a 657-acre area, including a portion of Stand 41-53, as the

Whitewater River Falls and Gorge Natural Area. The State documented the rare and exemplary

ecological features in the area, observing that its high humidity and protected nature “provide[] a

habitat for one of the most diverse assemblages of bryophytes and many high plant species of

any location within the entire region.” North Carolina Natural Heritage Program, Whitewater

River Falls and Gorge Site Survey Report (1994), 1. But the State warned that if logging

occurred, as was permitted for a portion of the area under the 1987 Nantahala–Pisgah Forest

Plan, the State might need to “reconsider[]” the Natural Area’s boundaries because harvested

portions may no longer meet the criteria for Natural Area designation. Id.

45. In 2008, the State completed further surveys and expanded the Natural Area to

include the entirety of Stand 41-53 along with other areas. The State again carefully documented

the rare species and unique ecological context of the area.

46. The State stratifies Natural Areas according to various criteria as either “general”

(the base-level classification), “moderate,” “high,” “very high,” or “exceptional.” The

Whitewater River Falls and Gorge Natural Area received the highest rating of “exceptional” due

to the rarity and integrity of its habitats and natural features. North Carolina Natural Heritage

Program, 2017 Biennial Report, 74. The State has described this Natural Area as “perhaps the

most spectacular in an area known [for] outstanding biological richness.” North Carolina Natural

Heritage Program, Area Reports (June 2, 2014), 238.

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 47. Stand 41-53 is slated to be logged as part of the Southside Project, which

authorizes commercial logging in sixteen stands. Seven of these stands would receive lighter

“group selection” harvests, while nine, including Stand 41-53, would receive heavier

“regeneration” harvests.

48. Stands receiving regeneration harvests would be left with only twenty square feet

of “basal area” per acre—a silvicultural measure referring to the cross-sectional area of standing

trees that cover an acre. Twenty square feet of basal area, according to the Forest Service, is a

“sparse overstory.” It equates to leaving approximately fifteen trees on a football field-sized area

if each of those trees were eighteen inches in diameter.

49. Despite Stand 41-53 being part of the exceptional Whitewater River Falls and

Gorge Natural Area, “regeneration” logging was consistent with the management area

components applicable to Stand 41-53 in the 1987 Forest Plan. During the Southside Project’s

development—which occurred under the 1987 Forest Plan—several plaintiffs repeatedly

requested that the Forest Service reconsider its plans to log in the Whitewater River Falls and

Gorge Natural Area.

50. The State also engaged in the Southside Project development process, identifying

portions of Stand 41-53 as being “in excellent condition [where] white pine is largely absent.”

Letter from Wesley Knapp, North Carolina Natural Heritage Program, to Mike Wilkins, U.S.

Forest Service (Nov. 14, 2017), 1. The State requested that “[i]f possible, timber harvest

activities in these high-quality areas should be avoided” and explained that “[i]deally, timber

harvest activities in this stand would be restricted to white pine.” Id. Nevertheless, the final

Southside Project, released in 2019, retains the Forest Service’s original 2017 plans to conduct

“regeneration” logging in Stand 41-53.

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 51. While several Plaintiffs were advocating that Stand 41-53 be excluded from the

agency’s logging plans for the Southside Project, they, along with the State, were also asking the

Forest Service through the parallel forest plan revision process to place all “exceptional” Natural

Areas, including Stand 41-53 and the entire Whitewater River Falls and Gorge Natural Area, into

a management area that would protect their exceptional ecological values. In early drafts of what

would become the 2023 Forest Plan, the Forest Service allocated portions of the Whitewater

River Falls and Gorge Natural Area to protective management area designations but excluded

significant portions of the Natural Area including those slated to be logged as part of the

Southside Project. In subsequent drafts, the Forest Service allocated additional portions of

Whitewater River Falls and Gorge Natural Area to a protective management area but continued

to exclude the portions of the Southside Project it planned to log.

52. Finally, in 2020—following finalization of the Southside Project in 2019—the

Forest Service completed biological surveys in the excluded areas, confirmed their exceptional

ecological values, and placed Stand 41-53 and the remainder of the Whitewater River Falls and

Gorge Natural Area into the “Special Interest Area” management area. The “Special Interest

Area” management area is designed to protect “the most exceptional ecological communities that

serve as core areas for conservation of the most significant and rare elements of biological

diversity on the Forests.” As a result, lands in Special Interest Areas “are not in need” of active

management and logging is prohibited with a few narrow exceptions. By contrast, the largest

management area on the Nantahala National Forest in the 2023 Forest Plan is the “Matrix”

management area, which has the fewest logging restrictions.

53. Stand 41-53 is included in the Special Interest Area management area in the final

2023 Forest Plan.

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 The 2023 Forest Plan’s Restrictions on Logging in Special Interest Areas

54. The 2023 Forest Plan includes a “standard” that allows “vegetation management”

(including logging) in the Special Interest Area management area only to “enhance the desired

community composition of the area” and only when the logging is intended to: 1) improve

habitat for threatened or endangered species, or for species of conservation concern, 2) restore,

enhance, or maintain rare plant communities, 3) restore, enhance, or mimic historic fire regimes,

4) reduce insect and disease hazards, or 5) provide for public safety. U.S. Forest Service,

Nantahala and Pisgah National Forests Final Land Management Plan (2023), Standard SIA-S-02,

227 (hereinafter “2023 Forest Plan”).

55. The logging authorized in Stand 41-53 will not and is not intended to “enhance

the desired community composition of the area.” Special Interest Areas are to be managed to

“support[] and enhance[]” high-quality communities and rare species. 2023 Forest Plan at 226.

Stand 41-53 contains state-recognized rare and watch-listed species of bryophytes (liverworts,

hornworts, and mosses). Those rare species and the moist, shaded community that surrounds

them would be degraded or destroyed by the imminent commercial logging in Stand 41-53.

56. In addition to failing to enhance the area’s desired community composition, the

Forest Service’s purposes for logging in Stand 41-53 did not include improving habitat for

threatened or endangered species, or for species of conservation concern. “Species of

conservation concern” is a Forest Service term for species that may not be able to persist over the

long-term in the forest plan area.

57. The Forest Service’s purposes for logging in Stand 41-53 did not include

restoring, enhancing, or maintaining rare plant communities.

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 58. The Forest Service’s purposes for logging in Stand 41-53 did not include

restoring, enhancing, or mimicking historic fire regimes.

59. The Forest Service’s purposes for logging in Stand 41-53 did not include reducing

insect and disease hazards.

60. The Forest Service’s purposes for logging in Stand 41-53 did not include

providing for public safety.

61. Instead, the logging in Stand 41-53 is authorized for “the purposes of vegetation

habitat improvement, and for forest regeneration, sustainability, and provision of early

successional habitat.” U.S. Forest Service, Southside Project Final Environmental Assessment

(2019), 10. Early successional habitat is created through logging by removing an existing forest

to make way for a “new” forest, resetting stand age to zero. Logging could be used to create

early successional habitat across thousands of acres of the Southside Project area, but the Forest

Service has insisted on creating early successional habitat in the “exceptional” 15-acre area

contested in this lawsuit.

62. Another purpose of the commercial logging in the Southside Project is timber

production. The 2023 Forest Plan designates the Special Interest Area management area as

“unsuitable” for timber production, meaning timber harvest for timber production purposes is not

permitted. 2023 Forest Plan, SIA-S-01, at 227.

63. The Forest Service’s purposes for logging in Stand 41-53 do not satisfy the above

narrow exceptions to the general prohibition against logging in Special Interest Areas under the

2023 Forest Plan. The logging is not only inconsistent with the Nantahala–Pisgah National

Forests’ 2023 Forest Plan but is also inconsistent with the ecological integrity purposes of the

2012 Planning Rule itself.

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 64. Acknowledging this potential inconsistency, the Forest Service explained in the

Final Environmental Assessment for the Southside Project that “[i]f the [2023 Forest Plan]

results in any of the stands proposed for harvest in this project [being placed] into an unsuitable

timber management area, they will not be harvested.” Southside Project Final Environmental

Assessment (2019), 17.

65. The Special Interest Area management area is designated as unsuitable for timber

production in the 2023 Forest Plan. Nevertheless, the Forest Service plans to move forward with

logging Stand 41-53.

66. Conservation Groups have repeatedly brought their concerns to the Forest

Service’s attention following final agency decisions on both the Southside Project and the 2023

Forest Plan, but the agency has refused to reevaluate its logging plans for Stand 41-53.

MountainTrue, Defenders of Wildlife, and Sierra Club administratively objected to the 2023

Forest Plan on multiple grounds and expressly pointed out the inconsistency of the logging

authorized in Stand 41-53 with the 2023 Forest Plan, alerting the agency to its duty to review and

modify the Southside Project. In response, the agency stated that it had “not identified the need

to modify any pre-existing actions . . . due to inconsistencies with the revised plan” and that

“[p]reviously approved and ongoing projects are allowed to go forward or continue.” U.S. Forest

Service, Record of Decision for the Nantahala and Pisgah National Forests Land Management

Plan (2023), 85.

67. Later, a representative of Conservation Groups asked Defendant Troy Waskey if

the Forest Service was “plan[ning] still to harvest [Stand 41-53] as described in the Southside

Decision.” Defendant Waskey responded that the agency’s “implementation strategy has not

changed.”

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 The 2023 Forest Plan’s Scenic Analysis Requirement

68. The 2023 Forest Plan also recognized the section of the Whitewater River

bordering Stand 41-53 as eligible for congressional designation as a “scenic” river under the

Wild and Scenic Rivers Act. 2023 Forest Plan at 259. To protect that eligibility, the 2023 Forest

Plan limits activities on and near the Whitewater River and other “scenic” eligible river segments

according to their “Scenic Integrity Objective.”

69. Specifically, the 2023 Forest Plan protects these segments by establishing a

corridor extending a quarter mile from each riverbank where “silvicultural practices are allowed

provided that such practices are carried out in such a way that there is no substantial adverse

effect on the river and its immediate environment and the desired [Scenic Integrity Objective]

can be met.” WSR-S-04, id. at 261. Stand 41-53 is within this corridor.

70. The desired Scenic Integrity Objective for scenic-eligible river segments—

including this segment of the Whitewater River—is “High.” WSR-DC-09, id. Areas subject to

this scenic designation are to “appear[] unaltered” from the riverbank within two full growing

seasons following any timber harvest. SC-DC-06 and SC-S-03, id. at 128–29.

71. To ensure that this “High” standard is met, the 2023 Forest Plan requires a

project-level scenery impact analysis for “actions which may visually alter scenic character . . .

considering associated viewpoints at use areas, water bodies, open roads, trails, and closed roads

used as trails” during the “leaf-off” season or using “a GIS viewshed analysis to determine the

maximum extent of visibility.” SC-S-01, id. at 129.

72. The Forest Service has not performed the analysis required by the 2023 Forest

Plan to determine whether its proposed activities in Stand 41-53 and elsewhere in the Southside

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Project Area meet the “High” Scenic Integrity Objective that now applies to activities in the

stand under the 2023 Forest Plan.

CLAIMS FOR RELIEF

COUNT 1: The Southside Project Violates NFMA Because It Is Inconsistent with the 2023
Forest Plan’s Requirements for Special Interest Areas

73. Conservation Groups incorporate all preceding paragraphs by reference.

74. The Southside Project Decision Notice is a final agency action under the APA,

5 U.S.C. § 704.

75. All activities on a national forest “shall be consistent with the land management

plans.” 16 U.S.C. § 1604(i). “When land management plans are revised, resource plans and

permits, contracts, and other instruments, when necessary, shall be revised as soon as

practicable” to become consistent with the new land management plan—i.e., forest plan. Id. Both

of these requirements apply to the Southside Project.

76. The Nantahala National Forest, including the Southside Project area, is governed

by the 2023 Forest Plan.

77. The 2023 Forest Plan places Stand 41-53 in the Special Interest Area management

area, which it designates as unsuitable for timber production. Under Forest Plan Standard SIA-S-

02, logging is only allowed in that management area if it is designed to “enhance desired

community composition” and either “[i]mprove threatened, endangered, or [species of

conservation concern] habitat; [r]estore, enhance, or maintain rare plant communities; [r]estore,

enhance, or mimic historic fire regimes; [r]educe insect and disease hazards; [or] [p]rovide for

public safety.” 2023 Forest Plan at 227.

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 78. The Southside Project is not designed to “[i]mprove threatened, endangered, or

[species of conservation concern] habitat; [r]estore, enhance, or maintain rare plant communities;

[r]estore, enhance, or mimic historic fire regimes; [r]educe insect and disease hazards; [or]

[p]rovide for public safety.”

79. The Southside Project is not designed to “enhance desired community

composition.”

80. Because the logging planned for Stand 41-53 does not satisfy the criteria for

logging in Special Interest Areas, it is not “consistent with” the current, governing forest plan.

This failure to conform the Southside Project to the 2023 Forest Plan is a violation of NFMA, 16

U.S.C. § 1604(i), and the APA, 5 U.S.C. § 706.

COUNT 2: The Southside Project Violates NFMA Because It Is Inconsistent With the 2023
Forest Plan’s Requirements for Scenic-Eligible Rivers

81. Conservation Groups incorporate all preceding paragraphs by reference.

82. The 2023 Forest Plan identifies the portion of the Whitewater River adjacent to

the Southside Project area—and specifically, adjacent to Stand 41-53—as eligible for “scenic”

status under the Wild and Scenic Rivers Act.

83. As part of that designation, the 2023 Forest Plan protects a corridor extending a

quarter mile from each riverbank where “silvicultural practices are allowed provided that such

practices are carried out in such a way that there is no substantial adverse effect on the river and

its immediate environment and the desired [Scenic Integrity Objective] can be met.”

84. The desired Scenic Integrity Objective is “High” for the protected corridors of

scenic-eligible river segments, including the segment of the Whitewater River bordering Stand

41-53.

85. Stand 41-53 is within this protected corridor.

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 86. To ensure that this “High” Scenic Integrity Objective is observed and maintained,

the 2023 Forest Plan requires a project-level scenery impact analysis for “actions which may

visually alter scenic character . . . considering associated viewpoints at use areas, water bodies,

open roads, trails, and closed roads used as trails” during the “leaf-off” season or using “a GIS

viewshed analysis to determine the maximum extent of visibility.” SC-S-01, 2023 Forest Plan at

129.

87. The logging proposed in Stand 41-53 may visually alter the scenic character of

this area from the Whitewater River.

88. Nevertheless, the Forest Service has not completed the requisite project-level

scenery impact analysis for this area in light of the area’s “High” Scenic Integrity Objective in

the 2023 Forest Plan.

89. The Forest Service’s failure to complete this analysis is inconsistent with the

requirements of the 2023 Forest Plan and therefore violates NFMA, 16 U.S.C. § 1604(i), and the

APA, 5 U.S.C. § 706.

PRAYER FOR RELIEF

WHEREFORE, Conservation Groups respectfully request that the Court:

1. Enter a declaratory judgment that the logging authorized by the Southside Project

in Stand 41-53 is inconsistent with the 2023 Forest Plan, therefore violates that National Forest

Management Act, and that Defendants have a mandatory duty to update its ongoing projects to

be consistent with the 2023 Forest Plan;

2. Set aside the Decision Notice approving logging in Stand 41-53;

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 3. Enter preliminary and permanent injunctive relief as needed to prevent logging in

Stand 41-53 as prescribed by the Southside Project Decision, preventing irreparable harm from

occurring in and around Stand 41-53;

4. Award Conservation Groups the costs of this action, including reasonable

attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; and

5. Grant such other relief as this Court deems just and proper.

Respectfully submitted, this the 31st day of January, 2024.

/s/ J. Patrick Hunter

J. Patrick Hunter
N.C. Bar No. 44485
Henry Gargan
N.C. Bar No. 58202
Sam Evans
N.C. Bar No. 44992
SOUTHERN ENVIRONMENTAL LAW CENTER
48 Patton Ave., Suite 304
Asheville, NC 28801-3321
Telephone: 828-258-2023
Facsimile: 828-258-2024
phunter@selcnc.org; hgargan@selcnc.org;
sevans@selcnc.org

Attorneys for Conservation Groups

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