Sierra Club v. Glickman

• Decision Date: 16 August 1999
• Docket Number: No. 97-41274,97-41274
• Citation: 185 F.3d 349
• Parties: (5th Cir. 1999) SIERRA CLUB; WILDERNESS SOCIETY; TEXAS COMMITTEE ON NATURAL RESOURCES, Plaintiffs-Appellees, v. R. MAX PETERSON; ET AL., Defendants, DANIEL GLICKMAN, In his official capacity as the Secretary of the Department of Agriculture; GLORIA MANNING, In her official capacity as the Acting Regional Forester, U S Forest Service, Region 8; MICHAEL DOMBECK, In his official capacity as Chief, U S Forest Service; RONALD RAUM, In his official capacity as the Forest Supervisor, National Forests and Grasslands in Texas, Defendants-Appellants, TEXAS FORESTRY ASSOCIATION; SOUTHERN TIMBER PURCHASERS COUNCIL, Intervenor-Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 349

185 F.3d 349 (5th Cir. 1999)

SIERRA CLUB; WILDERNESS SOCIETY TEXAS COMMITTEE ON NATURAL RESOURCES, Plaintiffs-Appellees, v. R. MAX PETERSON; ET AL., Defendants, DANIEL GLICKMAN, In his official capacity as the Secretary of the Department of Agriculture; GLORIA MANNING, In her official capacity as the Acting Regional Forester, U S Forest Service, Region 8; MICHAEL DOMBECK, In his official capacity as Chief, U S Forest Service; RONALD RAUM, In his official capacity as the Forest Supervisor, National Forests and Grasslands in Texas, Defendants-Appellants, TEXAS FORESTRY ASSOCIATION; SOUTHERN TIMBER PURCHASERS COUNCIL, Intervenor-Defendants-Appellants.

No. 97-41274

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 16, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeals from the United States District Court for the Eastern District of Texas

Before POLITZ, EMILIO M. GARZA and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This case is the latest iteration of a fourteen-year dispute between several environmental groups (the Sierra Club, the Wilderness Society, and the Texas Committee on Natural Resources ("TCONR"), collectively, "Appellees," or, "environmental protection organizations") and the U.S. Department of Agriculture, through the U.S. Forest Service ("Forest Service"). Also participating in this litigation since 1993 and for purposes of this appeal are the Texas Forestry Association and the Southern Timber Purchasers Council (collectively, "Timber Intervenors," and, with the Forest Service, "Appellants"). Although the parties dispute how to characterize the district court's actions in this case-whether the court conducted a "de novo trial" or merely "took evidence"-both sides agree, in broad terms, that the crux of this appeal is whether the National Forest Management Act of 1976 ("NFMA"), Pub. L. No. 94-588, 90 Stat. 2949 (codified at 16 U.S.C. 1604 (1994)), contains substantive requirements that a court may enforce through the mechanism of an injunction after conducting a bench trial. The district court found that it did and enjoined timber harvesting in the affected National Forests as a result of the Forest Service's failure to comply with various Congressional mandates. Because we believe that this ruling, and the court's decision to collect information itself that enabled it to arrive at this conclusion, was appropriate, we affirm the judgment of the district court.

I

The factual background to this case concerns the responsibilities of the Forest Service with respect to the maintenance and management of the National Forests in Texas. Before addressing the specific events precipitating this lawsuit, we believe it important to describe the history of the National Forest System and the role that Congress has required the Forest Service to play in their management.

A

The National Forest System, which is administered by the Forest Service, was established in the latter part of the nineteenth century "for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States." Organic Administration Act of 1897 1, 16 U.S.C. 475 (1994). Over a half-century later, Congress broadened the permissible uses of National Forests with the Multiple-Use Sustained-Yield Act of 1960, Pub. L. No. 86-517, 74 Stat. 215 (codified at 16 U.S.C. 528-531 (1994)), and, in 1974, it enacted the Forest and Rangeland Renewable Resources Planning Act ("RPA"), Pub. L. No. 93-378, 88 Stat. 476 (codified at 16. U.S.C. 1600-1614 (1994)). In 1976, the NFMA amended the RPA. Because of widespread public distress and scientific concern over the Forest Service's post-World War II shift to massive, heavily-subsidized timber production in the National Forests,¹ Congress for the first time required the Forest Service to implement a "land and resource management plan" ("LRMP") for each national forest or group of national forests. See NFMA 6(a), 16 U.S.C. 1604(a). This management plan must "provide for multiple use and sustained yield of the products" from the national forests, id. 6(e)(1), 16 U.S.C. 1604(e)(1), and must be accompanied by regulations that "specify[] guidelines for land management plans," id. 6(g)(3), 16 U.S.C. 1604(g)(3). If more destructive techniques such as even-aged management² are to be employed, then they must be carried out consistent with soil and watershed protection, and the harvesting must be monitored to note the effects of the practices on key resources and wildlife. See id. 6(g)(3)(F), 16 U.S.C. 1604(g)(3)(F).

The LRMP planning regulations are codified at 36 C.F.R. pt. 219 (1999). The regulations state that the "[p]lans guide all natural resource management activities and establish management standards and guidelines for the National Forest System" and that "[t]hey determine resource management practices, levels of resource production and management, and the availability and suitability of lands for resource management." 36 C.F.R. 219.1(b). The regulations cover, inter alia, general procedures, content, and process requirements for forest planning. They require that an LRMP incorporate the establishment of forest-wide multiple-use goals and objectives,³ see id. 219.11(b); of forest-wide management requirements in the form of standards and guidelines, see id. 219.13-.27; and of management area direction and prescriptions applying to future management activities in that management area, see id. 219.11(c). Each LRMP shall also contain "[m]onitoring and evaluation requirements that will provide a basis for periodic determination and evaluation of the effects of management practices." Id. 219.11(d).

Also of relevance to the instant dispute is 219.19, which concerns fish and wildlife resources. It provides that "[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." Id. 219.19. This subsection then introduces the concept of "management indicator species" ("MIS") by providing that

[i]n order to estimate the effects of each alternative [considered in the draft and final LRMPs and accompanying environmental impact statements] on fish and wildlife populations, certain vertebrate and/or invertebrate species present in the area shall be identified and selected as management indicator species and the reasons for their selection stated. These species shall be selected because their population changes are believed to indicate the effects of management activities.

Id. 219.19(a)(1). The subsection further provides that "[p]opulation trends of the management indicator species will be monitored and relationships to habitat changes determined." Id. 219.19(a)(6).

B

The Forest Service administers approximately 639,000 acres of National Forest lands in eastern Texas. These National Forest lands are divided into four National Forests: the Sam Houston, the Angelina, the Sabine, and the Davy Crockett ("Texas National Forests"). Almost all of what are now the national forest lands in eastern Texas were purchased by the United States in the 1930s and 1940s pursuant to the Weeks Act of 1911 6, ch. 186, 36 Stat. 961 (codified as amended at 16 U.S.C. 515 and scattered sections (1994)). Today, the National Forest lands comprise approximately 37% of the total amount of land within the forests' proclamation boundaries.

Most of the forested lands in eastern Texas were intensively logged near the turn of the century while they were still in non-federal ownership. Consequently, the present timber stands on the national forest lands are comprised mostly of second growth. The Forest Service began practicing even-aged timber management techniques in the Texas National Forests in the early 1960s.

II

The arduous trek of this case through the court system began on April 17, 1985, when the environmental protection groups first challenged the Forest Service's administration of the National Forests in Texas.⁴ Early on, Appellees frequently prevailed at the district court on discrete issues: the district court preliminarily enjoined the Forest Service to follow strictly its own guidelines in cutting pine trees to control the spread of the Southern Pine Beetle, see Sierra Club v. Block, 614 F. Supp. 134, 141 (E.D. Tex. 1985); and the district court enjoined the Forest Service from clearcutting practices within 100 yards of a red-cockaded woodpecker colony, see Sierra Club v. Block, 694 F. Supp. 1255, 1256 (E.D. Tex. 1987) (Parker, J.).

After 1987, the proceedings diverged along two separate, yet parallel, tracks. On the first were Appellees' claims that even-aged management techniques violated the NFMA and its associated regulations. The second track concerned Appellees' efforts to protect the habitat of the red-cockaded woodpecker. While the instant case represents the terminus of that first line, we will summarize below the procedural history of the twin paths of this litigation, first addressing the woodpecker litigation.

A

Beginning in 1987, Appellees⁵ sought review of the Texas Forest Plan of 1987 ("1987 Plan"), issued pursuant to NFMA 6, 16 U.S.C. 1604, and the focus of the litigation shifted in part from protecting the habitats of specific species to questioning the legitimacy of the Forest Service's practices as a whole. Originally, the district court partially dismissed Appellees' challenge to the validity of the 1987 Plan for failure to exhaust administrative remedies. See Sierra Club v. Lyng, 694 F. Supp. 1256, 1259 (E.D. Tex. 1988) (Parker, J.). Several months later, however, having conducted a trial on the matters which were ripe for judicial determination, the district court found the Forest Service to be in violation of the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. 1531-1543 (1985) with respect to the red-cockaded woodpecker and...