Tex. Committee on Natural Resources v. Bergland

Decision Date24 May 1977
Docket NumberCiv. A. No. TY-76-268-CA.
PartiesTEXAS COMMITTEE ON NATURAL RESOURCES v. Bob BERGLAND, Secretary of Agriculture of the United States, John R. McGuire, Chief, Forest Service of Department of Agriculture, John Courtenay, Forest Supervisor, Sam Houston National Forest, Forest Service of the Department of Agriculture, Individually and in their official capacity.
CourtU.S. District Court — Eastern District of Texas

COPYRIGHT MATERIAL OMITTED

Roby Hadden, U. S. Atty., E. D. Tex., C. Houston Abel, Asst. U. S. Atty., Tyler, Tex., L. Mark Wine, Atty. Dept. of Justice, Land and Natural Resources Div., Washington, D. C., for defendants.

James R. Cornelius, Jr., Kenzie D. Hallmark, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, Tex., for defendant-intervenors A. A. Steely Lumber Co., et al.

James G. Ulmer, Baker & Botts, Houston, Tex., for defendant-intervenor Texas Forestry Ass'n.

William H. Kugle, Jr., Athens, Tex., Henry T. Skelton, Jr., Athens, Tex., Edward C. Fritz, Dallas, Tex., for plaintiff.

FINDINGS OF FACT

JUSTICE, District Judge.

1. Plaintiff in this civil action is the Texas Committee on Natural Resources, a voluntary organization supported by contributions from individual members. Various members of the plaintiff committee make use of the National Forests in Texas for recreational purposes.

2. The defendants include Bob Bergland, Secretary of Agriculture (who is automatically substituted as a defendant pursuant to Fed.R.Civ.P. 25(d)), John McGuire, Chief, Forest Service, Department of Agriculture, and John Courtenay, Forest Supervisor, National Forests in Texas, who are responsible for management of the National Forests in Texas.

3. Intervenors in this action are the Texas Forestry Association; Oliver Brothers Lumber Co., Inc.; Champion International Inc.; Conroe Creosoting Co.; L. R. Davis; Leggett Lumber Co., Inc.; Louisiana-Pacific Corp.; Owens Illinois, Inc.; Southland Paper Mills, Inc.; Walker Brothers, Inc.; Williams Lumber Co., Inc.; Woodville Lumber Co.; A. A. Steely Lumber Co.; The Boettcher Land and Timber Co.; Giles Brothers Lumber Co.; Davis Pulpwood Co.; Bob Currie; and Jack Alexander, Inc.

4. The United States Forest Service manages approximately 662,313 acres of National Forest lands in East Texas, with headquarters in Lufkin, Angelina County, Texas. The National Forests in Texas are comprised of four separate forests, namely, the Sam Houston, Angelina, Sabine, and Davy Crockett National Forests.* They are administered by a single employee, known as a Forest Supervisor, through seven Ranger Districts, each headed by a Forest Service employee known as a District Ranger. The seven Ranger Districts are: Raven, San Jacinto, Yellowpine, Trinity, Neches, Angelina, and Tenaha.

5. Of the total of 662,313 acres in the National Forests of Texas, 50,251 acres are under water, 30,570 acres are reserved or protected, and 22,500 acres are for various reasons unavailable for timber management activities. Thus, a total of approximately 558,992 acres is left available for timber management purposes.

6. "Uneven-age management" is a forest management system which provides for an intermingling of trees ranging in age from seedlings or sprouts through maturity; thus, a full range of age classes is found on each acre of a stand. Only the largest, oldest, and dead trees are harvested at annual or more frequent intervals. This is known as "selective harvesting".

7. Until 1964, the Service practiced selective harvesting of pines and hardwoods in Texas. Its foresters marked the dead, mature, and large trees for sale to private purchasers, who removed only those trees, leaving the younger trees to grow.

8. "Even-age management" is a forest management system wherein a stand of timber (softwoods or hardwoods or a mixture) of uniformly-aged trees is cultivated and maintained through maturity. Trees in an even-age stand are generally of the same age, but not necessarily of the same size. As hereafter shown, harvest schedules include two or three intermediate thinnings, conducted at fifteen to twenty year intervals, with the final regeneration harvest method being clearcut, shelterwood, or seed tree.

9. In Texas, the United States Forest Service shifted its system of management and sales (other than "thinning sales") to clearcutting, including seed tree cutting, in 1964. Since then, this method has accounted for the large majority of all sawlog sales by the Service. Under this method, the Service selects "units" in which the merchantable pine types (and, in less than ten percent of the acreage, hardwood types) are marked for harvesting.

10. Each sale of timber from the National Forests is consummated through a formal sale contract. These sales of timber are conducted according to regulations issued by the Secretary of Agriculture, 36 CFR 221, and are in accordance with procedures and guidelines contained in the Forest Service Manual, a large compilation of guidelines, directives, and other information governing the internal operations of the Forest Service.

11. District Rangers are named as contract officers. Sale operations are inspected, on a current basis, by specially trained sale administration officers working for the District Ranger.

12. The Service advertises various units for bids by prospective purchasers, indicating its prescription of "clearcut", "seed tree cut" or "seed tree removal" on the Sale Area Map, an attachment to the Timber Sale Prospectus. Each contract has a life of one to three years, which is extendable.

13. Contract provisions require some specific measures of environmental protection in timber cutting, utilization, and removal. Thus, timber sale contracts contain such standard clauses as "CT 6.4—Conduct of Logging", which provides that logging will be conducted only with animals, trucks, or rubber-tired tractors with a gross weight of 13,000 pounds or less, or a bulldozer of up to 15,000 pounds (without bulldozer blade). "CT 8.2-Environmental Protection" provides for sale termination upon determination of environmental damage. However, such contracts contain no provisions requiring the purchaser to protect or to spare the unmarked trees, or to pay for them in the event of damage or felling (except that certain trees and buffer zones are reserved as locations where red-cockaded woodpeckers have nesting holes).

14. The contracts generally include a requirement that the purchaser construct one or more roads from an existing road to the area of the newly sold timber. The contracts also contain penalties, including provisions for breach and cancellation.

15. Within the contractual period, the purchaser moves in heavy equipment and cuts and removes the marked trees, leaving the other trees and vegetation heavily damaged.

16. The harvesting operation is then completed by the Service. On most harvesting sites, the Service "clearcuts", using heavy equipment to slice or push down, to within two or three inches of the ground, any trees and vegetation remaining after the commercial cutting. At that point, the debris is either piled and burned or pushed into windrows. In some harvesting sites, the Service uses herbicides, in addition to heavy equipment, to kill the vegetation remaining after the commercial cutting. Generally, the action of the Service results in the conversion of the harvest site to a bare field.

17. After the clearcutting, the Service plants seeds or seedlings, generally slash, loblolly, or shortleaf pine. In clearcuts where hardwoods have prevailed, they are permitted to grow back from those roots which were not destroyed by the clearcutting equipment. This process is called "regeneration".

18. About seven to fifteen years after each regeneration, the Service "clears out" hardwoods, by such processes as "prescribed burning" or herbicide injection. Later, the Service marks some of the remaining young trees for a thinning sale. Following the marking, the purchaser fells and removes the marked trees by use of heavy equipment. This process may be repeated up to four times in the life of the stand. The remaining trees are subjected to additional prescribed burning, to eliminate hardwoods and understory vegetation. The Service plans that, at the end of the rotation, the remaining large trees, mostly pines, will be marked for sale and sold as sawlogs.

19. Once the clearcutting cycle is underway, it comes under the Service terminology of "even-age management."

20. As part of the current clearcut sequence, the Service now plans the following rotation periods: seventy years for loblolly pine, eighty years for shortleaf pine, and one hundred years for hardwoods.

21. Defendants intend to continue this process of clearcut-regeneration until 524,281 acres of the commercial forest lands in the four National Forests are converted to pine and 23,177 acres to hardwoods. This proposal constitutes a major federal action, the cumulative or synergistic effects of which are likely significantly to affect the quality of the human environment in the East Texas region.

22. Under the clearcut sales contracts previously described, the Service and the purchasers and contractors, in combination (including all Intervenors except Texas Forestry Association), are mutually engaged in clearcutting in the National Forests of Texas, each performing an integral part of that operation.

23. The clearcutting of the National Forests in Texas is highly controversial; i. e., a substantial dispute exists as to the environmental effects of even-age management.

24. Stands which the Service clearcut from 1964 to 1975 are now covered densely with pine trees ten to twenty feet in height, except for openings among the pines, where the main growth is in briars, sumac, sweetgum, and other species of low value for timber or for game. After clearing and thinning, these stands become virtual monocultures of the loblolly, shortleaf, or slash pine species, with the...

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