Forest Guardians v. Thomas

Citation967 F.Supp. 1536
Decision Date25 June 1997
Docket NumberNo. CIV. 96-2258 PHX-PGR.,CIV. 96-2258 PHX-PGR.
PartiesFOREST GUARDIANS, et al., Plaintiffs, v. Jack Ward THOMAS, in his official capacity as Chief, United States Forest Service, Defendant.
CourtU.S. District Court — District of Arizona

John D. Everroad, Robert Daniel Anderson, David Michael Call, Fennemore Craig, Phoenix, AZ, for Stone Container Corp.

Richard A. Segal, James G. Speer, Gust Rosenfeld PLC, Phoenix, AZ, Alan I. Saltman, Gary G. Stevens, Richard W. Goeken, Saltman & Stevens, Washington, DC, for Precision Pine & Timber Inc.

Richard Rosenstock, Santa Fe, NM, for La Compania Ocho Inc., Manuel Guruel, Antonio DeVargas, Pat Valdez, Steve Chavez and Dennis Valdez.

ORDER

ROSENBLATT, District Judge.

I. BACKGROUND
A. General history1
1. Southwestern Region Amendment

In 1976, Congress enacted the National Forest Management Act ("NFMA"). The NFMA constitutes a statutory framework pursuant to which the Secretary of Agriculture is to plan for the management of National Forest lands. 16 U.S.C. §§ 1600-1614. The statute provides for public participation in this forest planning process. 16 U.S.C. § 1604(d). NFMA also provides that land and resource management planning is to provide for multiple uses and sustained yield of the various forest resources on a coordinated basis. 16 U.S.C. § 1604(e). It further directs the Secretary to use a systematic, interdisciplinary approach to forest planning so as to achieve integrated consideration of physical, biological, economic, and other sciences. 16 U.S.C. § 1604(b).

The statute establishes a scheme for development of Land and Resource Management Plans ("LRMPs" or "forest plans") for units of the National Forest System. A unit is a specific forest within a particular region of the National Forest System. For example, Arizona and New Mexico constitute Region 3, the Southwestern Region. The six national forests in Arizona2 and the five national forests in New Mexico3 constitute 11 separate units within Region 3. 36 C.F.R. § 200.2.

The forest plans for the Southwestern Region forests were completed between 1985 and 1988. The Mexican spotted owl was listed as a threatened species effective April 15, 1993. In March, 1995, the United States Fish and Wildlife Service ("F & W") prepared and released for public and agency review a draft Mexican Spotted Owl Recovery Plan ("MSORP"). The completion of the MSORP and the Record of Decision's ("ROD") final Environmental Impact Statement ("EIS") were coordinated to facilitate incorporation of the final recommendations in the ROD.

In 1990 the Regional Forester established a Task Force and a separate Scientific Committee to review northern goshawk habitat management needs. The Scientific Committee issued their final management recommendations for northern goshawk habitat management guidelines in November, 1991. Interim guidelines were issued, the most recent of which expired in June, 1995. In order to ensure the continued protection of the northern goshawk until a final decision on the amendment, permanent northern goshawk guidelines were added to the Forest Service Directive System as a Region 3 Supplement in June, 1995.

While the forest plans in existence recognized both species as being sensitive species and therefore provided emphasis for their protection, the plans contained few specific standards and guidelines for their protection. In July, 1993, the plans were reviewed to identify standards and guidelines that should be revised to include the habitat needs for the northern goshawk and the Mexican spotted owl. Each forest plan was updated to contain the latest information on habitat needs for those species.

On June 6, 1996, the Regional Forester signed the ROD for the region-wide Amendment of all eleven LRMPs for the forests of the Southwestern Region. The ROD's objectives are as follows:

— incorporate standards and guidelines for Mexican spotted owl and northern goshawk into the Southwestern Region's forest plans to guide site-specific project design until forest plans are revised (1996 to 2003).

— incorporate standards and guidelines for old growth to ensure compatibility with requirements for Mexican spotted owl and northern goshawk and to ensure consistency across the Southwestern Region.

— ensure standards and guidelines reflect the de-emphasis from even-aged management silviculture and better represent current forest management.

— ensure standards and guidelines reflect the de-emphasis of timber production from slopes over 40 percent.

— ensure standards and guidelines for the Mexican spotted owl are consistent with the MSORP.

— ensure standards and guidelines for grazing management are added to all forest plans.

See Defendant's Opposition to Plaintiffs' Motion for Summary Judgment ("Response"), pg. 8. Each of the Southwestern Region's LRMPs are scheduled for revision beginning in 1996.

2. The La Manga Timber Sale

In late 1989, La Compania Ocho, Inc. ("La Compania") was organized by Manuel Guruel, Antonio DeVargas, Pat Valdez, Steve Chavez and Dennis Valdez to create business and employment opportunities for residents of the Vallecitos Federal Sustained Yield Unit ("Vallecitos Unit.")4 on a federally created land management area located within the Carson National Forest in and around the village of Vallecitos, New Mexico. In an effort to address some of the economic and social afflictions affecting timber dependent rural communities throughout the United States, Congress passed the Sustained Yield Forest Management Act of 1944, 16 U.S.C. § 583 et seq. This law authorized the Secretary of Agriculture to establish administratively a sustained yield unit within the National Forest when such an action would be "in the public interest."

....

The creation of a Sustained Yield Unit is "in the public interest" and authorized to be created upon a determination by the Secretary of Agriculture that the maintenance of stable communities is primarily dependent upon the sale of timber or other forest products from federally owned or administered forest land and that such maintenance cannot effectively be secured by following the usual procedures, including competitive bidding, in selling such timber or other forest products. The express purpose behind the establishment of a Sustained Yield Unit is to benefit those specific communities designated as part of a Unit by maintaining community stability through the strengthening of the economic structure of these communities by providing permanent, continuous, ample and sustained supply of forest products, including sawtimber. 16 U.S.C. §§ 583, 583b.

Once the Secretary of Agriculture makes a decision to establish a sustained yield unit, the Secretary first must determine and define the boundaries of the community or communities for whose benefit the unit was created. Secondly, the Secretary must sell, subject to such conditions and requirements as he believes necessary, federally owned timber and other forest products from the Unit to responsible purchasers within the benefitted communities. 16 U.S.C. § 583b.

Pursuant to the Sustained Yield Forest Management Act, the Department of Agriculture issued regulations regarding the sale of sawtimber within the sustained yield units. The Chief of the Forest Service was authorized to offer National Forest timber for sale without competition to "responsible operators" within those communities designated as the benefitted communities. Additionally, the Chief was authorized to offer such timber for sale without competition to other "responsible operators" who would agree to manufacture the timber within the communities to be maintained by the Unit. 36 C.F.R. § 223.117(b).

From 1990 to 1994, La Compania worked as a subcontractor for Duke City Lumber company, a subsidiary of a large international company. In March, 1994, La Compania filed suit against the United States Forest Service alleging it had been denied the opportunity to obtain its own timber sales contracts from 1990-94 in retaliation for engaging in conduct protected by the First Amendment and/or because of racial animus. See La Compania Ocho, Inc. v. U.S. Forest Service, 874 F.Supp. 1242 (D.N.M.1995). On March 13, 1996, a settlement agreement and Order was entered by United States District Judge John Conway giving La Compania the right to purchase 75% of the 2.1 million board feet ("MMBF") La Manga Timber Sale ("La Manga Sale"), as then configured. The La Manga Sale lies within the Vallecitos Federal Sustained Yield Unit and the primary purpose behind the Sale is to fulfill the Sustained Yield Forest Management Act by providing sawtimber sales to Vallecitos Unit residents. Because of the conduct of both Forest Guardians and the U.S. Forest Service, La Compania was not able to purchase the sale until January 1997. See Forest Conservation Council et al. v. Glickman, CIV No. 94-931 M (D.N.M.).5 In January 1997, La Compania formally signed a contract with the Forest Service to purchase the first 1.0 MMBF from the La Manga Sale. Because of weather conditions, no work has been done yet on the sale.6 The injunction issued by the Ninth Circuit Court of Appeals in this matter now prohibits the logging on the La Manga Sale.

In August, 1994, the Forest Conservation Council, the Carson Forest Watch, Forest Guardians and the National Audubon Society filed suit in the United States District Court of New Mexico, seeking to enjoin the La Manga Sale on the grounds that it violated the National Environmental Policy Act ("NEPA") of 1969 and the NFMA. See Forest Conservation Council, et al., v. Glickman, CIV No. 94-931 M (D.N.M.). In ...

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