Intermountain Forest Industry Ass'n v. Lyng, C88-0009-B

Citation683 F. Supp. 1330
Decision Date18 April 1988
Docket NumberNo. C88-0009-B,C88-0010-B.,C88-0009-B
PartiesINTERMOUNTAIN FOREST INDUSTRY ASSOCIATION and Louisiana Pacific Corporation, Plaintiffs, v. Richard E. LYNG, Secretary, United States Department of Agriculture, Dale Robertson, Chief of the United States Forest Service, J.S. Tixier, Regional Forester for Region 4, and Brian Stout, Forest Supervisor of the Bridger-Teton National Forest, Defendants. MOUNTAIN STATES LEGAL FOUNDATION, a nonprofit Colorado corporation, on behalf of its members, Citizens for Multiple Use, and on behalf of Women in Timber, Dubois Chapter, and its members, Plaintiffs, v. F. Dale ROBERTSON, Chief of the United States Forest Service; J.S. Tixier, Regional Forester; Brian Stout, Supervisor, Bridger-Teton National Forest, Defendants.
CourtUnited States District Courts. 10th Circuit. District of Wyoming

Constance E. Brooks, Paul Kapp, Karen Budd, Eric Twelker, Mountain States Legal Foundation, Denver, Colo., Paul Godfrey, Godfrey and Sundahl, Rick Thompson, Hathaway, Speight, Kunz, Trautwein & Barrett, Cheyenne, Wyo., W. Hugh O'Riordan, Steven R. Ormiston, Lindsay, Hart, Neil & Weigler, Boise, Idaho, Michael E. Haglund, Jack L. Landau, Lindsay, Hart, Neil & Weigler, Portland, Or., for plaintiffs.

Craig Paul Kapp, Godfrey and Sundahl, Cheyenne, Wyo., Andrew F. Walch, Patricia L. Weiss, Dept. of Justice, Div. of Lands, Sacramento, Cal., Richard A. Stacy, U.S. Atty., D. Wyo., Carol Statkus, Asst. U.S. Atty., Cheyenne, Wyo., Wells Burgess, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., for defendants.

Henry C. Phibbs II, Phibbs & Resor, Jackson, Wyo., for Jackson Hole Alliance for Responsible Planning.

Thomas D. Lustig & Christine A. Klein, National Wildlife Federation, Boulder, Colo., and Rodger McDaniel, Cheyenne, Wyo., for WWF, NWF, Sierra Club, WOC & Dubois Wildlife.

Rick Thompson, Hathaway, Speight, Kunz, Trautwein & Barrett, Cheyenne, Wyo., W. Hugh O'Riordan, Steven R. Ormiston, Lindsay, Hart, Neil & Weigler, Boise, Idaho, for Intermountain Forest/Louisiana Pacific.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

BRIMMER, Chief Judge.

This matter came before the Court on plaintiffs' motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). An evidentiary hearing was conducted at which all parties were represented by counsel. The Court, having heard the arguments of counsel, having reviewed the pleadings and the evidence presented by the parties, and being fully advised in the premises, FINDS, CONCLUDES and ORDERS as follows:

This is a challenge to the 1988 timber harvest levels announced for the Bridger-Teton National Forest. Plaintiffs include the Intermountain Forest Industries Association, Louisiana Pacific Corporation, the Mountain States Legal Foundation, Women in Timber and Citizens for Multiple Use. Defendants are the Secretary of Agriculture, the Chief of the Forest Service, the Regional Forester, and the Supervisor of the Bridger-Teton National Forest.

Plaintiffs contend that the defendants are violating a Timber Management Plan ("TMP") prepared by the Bridger-Teton National Forest in 1979. The TMP projects annual timber harvests of approximately 28.4 million board feet ("mmbf"). Approximately one-half of the timber is to be cut in the northern portion of the Bridger-Teton National Forest. This area constitutes the "working circle" of Louisiana Pacific's Dubois, Wyoming sawmill.

On January 6, 1988, the Bridger-Teton National Forest announced planned timber sales for 1988. The announcement projects annual sales of approximately 14.4 mmbf. Less than 6 mmbf is green sawtimber. All of the 7 mmbf offered in the north end of the forest is unsuitable for sawmill operations.

Plaintiffs seek a preliminary injunction requiring the United States Forest Service to operate the Bridger-Teton National Forest in accordance with the TMP and to take immediate steps to offer timber for harvesting at levels specified in the TMP. Plaintiffs failed to make a showing sufficient to justify preliminary injunctive relief. Their motion will be denied.

I. FACTS
A. The TMP

The Bridger-Teton National Forest is managed under ten Ranger District Multiple Use Plans adopted pursuant to the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"), 16 U.S.C. §§ 528-531, four unit plans, and several single resource plans. Tr. at 71-76 (testimony of Mr. Stout). Multiple use and unit plans "allocate land and resources for the various multiple uses permitted on the forest and provide direction for the coordination of these uses." TMP, EIS at 1-3. Single resource plans in contrast "are subordinate to the multiple use or unit plans, and translate the general land management direction they contain into specific guidelines for the management of a particular resource." Id.

The TMP is a single resource plan. Id. It was prepared and adopted in 1979 and accompanied by an environmental impact statement. The TMP has not been formally amended or revised.

Revisions are planned "as the need arises." A change of plus or minus ten percent in the commercial forest land area or a change of plus or minus in the potential timber yield triggers a review. TMP at 70. Neither change has occurred.

The Secretary of Agriculture affirmed the plan on May 16, 1980. Gov.Ex. 5. The Secretary cautioned, however, that the Bridger-Teton National Forest "contains some of the best elk habitat in North America" and that "it is of utmost importance that the Forest Service practice management on this forest which will minimize the impact on the elk habitat to the fullest extent possible consistent with multiple use management." The Secretary accordingly directed the Forest Service to consult with the Wyoming Game and Fish Department before permitting any harvesting under the plan. Finally, the Secretary noted that the TMP must be "considered an interim plan only." Id.

The TMP ennunciates "the overall management direction and objectives for timber management activities" in the Bridger-Teton National Forest. TMP at 66. It also identifies goals for timber harvesting and establishes guidelines to achieve those goals. Timber harvest goals are products of the land base suitable for commercial timber harvesting and of timber volumes which can be harvested feasibly — the annual programmable harvest.

1. Commercial Forest Land Base

The TMP first quantifies the land base available for timber production. The net area of the Bridger-Teton National Forest is 3,400,267 acres. TMP at 12 (Table 3-1). Approximately fifty-five percent, or 1,863,902 acres, is classified as "non-forest" or unproductive forest. The remaining 1,536,365 acres are productive forest. Id.

Productive forest land is classified as "reserved, deferred and commercial." TMP at 12. "Reserved" land has been withdrawn from timber utilization by statute, regulation or land use plans approved by the Regional Forester. TMP at 115. "Deferred" land includes areas identified for study as possible wilderness area. TMP at 114. Together these two classifications account for 567,261 acres, or approximately thirty-seven percent of the total productive forest land in the Bridger-Teton National Forest. TMP at 12 (Table 3-1).

The remaining 969,104 acres are classified as "commercial" forest land capable of producing crops of industrial wood. TMP at 12 (Table 3-1), 114. "Unregulated" commercial forest (land used as campsites, ranger stations and guard stations, for example) constitute 12,257 acres of commercial forest which is not managed for timber production. TMP at 12 (Table 3-1), 117. Nearly fifty-four percent of the commercial forest is classified as "marginal" land typified by high development costs and low product value. TMP at 12 (Table 3-1), 114. "Special" lands comprise 251,565 acres of commercial forest land. TMP at 12 (Table 3-1). Standard commercial forest land comprises only 181,928 acres of the Bridger-Teton National Forest, or only five percent of the total forest land area and less than twelve percent of the total commercial forest land in the Bridger-Teton National Forest. Id.

2. Planned Harvest Levels

The TMP also establishes "potential yields and harvest levels." TMP, at i. The potential yield is "the harvest that could be planned on commercial forest land considering the productivity of the land, conventional logging technology, standard cultural treatments, anticipated financing for cultural treatments, and relationships with other resource uses and the environment." TMP at 115. The average annual potential yield for the entire Bridger-Teton National Forest is approximately 81 mmbf. Id. at 43 (Table 6-3). This figure represents the maximum harvest possible under ideal conditions. It assumes economical access to every forested acre, compatibility with other resources, and an existing market for all volumes harvested. Declaration of Brian Stout at para. 8.

The potential yield is the sum of three components: standard, special and marginal. The standard component is the harvest that:

(1) can and should be produced through intensive management on standard acres ...; (2) has a reasonable probability of demand and/or funding under the accessibility and economic conditions projected for the plan period; and (3) can be harvested with adequate protection of the Forest resources under standard provisions of the timber sale contract.

TMP at 36, 116. Of the 81 mmbf average annual potential yield, only 21 mmbf falls within the standard component. Id. at 43 (Table 6-3). Salvage timber (cutting designed to utilize scattered dead and down trees) constitutes 3.6 mmbf of the standard component. Id. at 116, 43 (Table 6-3).

The second element of the annual average potential yield is the special component. Areas requiring special treatment of the timber resource are included in this component. Id. at 116. The main purposes of the special component are to promote quality elk hunting and aesthetics. Tr. at 245-46 (testimony of Mr. Baker). The special component is approximately 8...

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