Minnesota Public Interest Research Group v. Butz

• Decision Date: 28 September 1976
• Docket Number: Nos. 75-1724,s. 75-1724
• Citation: 541 F.2d 1292
• Parties: , 6 Envtl. L. Rep. 20,736 MINNESOTA PUBLIC INTEREST RESEARCH GROUP and Sierra Club, Appellees, v. Earl V. BUTZ, Individually and as Secretary of Agriculture, et al.,Appellants. to 75-1726, 75-1732 and 75-1769.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1292

541 F.2d 1292

9 ERC 1220, 6 Envtl. L. Rep. 20,736

MINNESOTA PUBLIC INTEREST RESEARCH GROUP and Sierra Club, Appellees, v. Earl V. BUTZ, Individually and as Secretary of Agriculture et al.,Appellants.

Nos. 75-1724 to 75-1726, 75-1732 and 75-1769.

United States Court of Appeals Eighth Circuit.

Submitted April 13, 1976.

Decided Aug. 30, 1976.

Rehearing Denied Sept. 28, 1976.

Elliot C. Rothenberg, Minnesota Public Interest Research Group, Minneapolis, Minn., and Charles Dayton, Minneapolis, Minn., for appellees.

Curtis L. Roy and William J. Keppel, Dorsey, Marquart, Windhort, West & Halladay, Minneapolis, Minn., on brief for Boise Cascade Corp., Potlatch Corp. and Northern Wood Preservers, Ltd.

Elliot C. Rothenberg and Michael Milgrom, Minneapolis, Minn., on brief for Minnesota Public Interest Research Group.

Charles K. Dayton and James A. Payne, Dayton, Herman & Graham, Minneapolis, Minn., on brief for Sierra Club.

Joe A. Walters and Frank J. Walz, O'Connor & Hannan, Minneapolis, Minn., on brief for Consolidated Papers, Inc.

Gerald L. Seck, Moen, Truk, Eastern Caroline Islands, Walker, Minn., amicus curiae for National Audubon Society.

Curtis L. Roy, Minneapolis, Minn., and George R. Hyde, Edmund B. Clark and Walter Kiechel, Jr., Appellate Section, Land and Natural Resources Division, Dept. of Justice, Washington, D. C., for appellants in Nos. 75-1724 to 75-1726.

Joe A. Walters and Frank J. Walz, O'Connor & Hannan, Minneapolis, Minn., and Walter Kiechel, Jr., Edmund B. Clark and George R. Hyde, Appellate Section, Land and Natural Resources Division, Dept. of Justice, Washington, D. C., for appellants in No. 75-1732.

Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., Peter Taft, Asst. Atty. Gen., and Walter Kiechel, Jr., Edmund B. Clark and George R. Hyde, Appellate Section, Land and Natural Resources Division, Dept. of Justice, Washington, D. C., for appellants in No. 75-1769.

Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, WEBSTER and HENLEY, Circuit Judges en banc.

ROSS, Circuit Judge.

This environmental litigation is before this court en banc for the second time. In Minnesota Public Interest Research Group (MPIRG) v. Butz, 498 F.2d 1314 (8th Cir. 1974) (en banc), we affirmed an order of the district court which temporarily enjoined commercial timber cutting in the Portal Zone of the Boundary Waters Canoe Area (BWCA) pending completion by the Forest Service of its new BWCA Land Use Management Plan and accompanying environmental impact statement (EIS). ¹ After the We hold that the Wilderness Act does not prohibit commercial logging in the virgin areas of the BWCA's Portal Zone and that the EIS, with exceptions discussed infra, is procedurally and substantively adequate under NEPA. Accordingly, we reverse.

BWCA EIS and Management Plan were published by the Forest Service, plaintiffs MPIRG and Sierra Club filed the present action against the named defendants ² claiming: 1) the Wilderness Act of 1964, 16 U.S.C. §§ 1131 et seq., prohibits commercial logging in the virgin forest areas of the BWCA; and 2) the EIS and Management Plan are procedurally and substantively inadequate under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. In an exhaustive opinion, the district court held: 1) the Wilderness Act prohibits logging in areas contiguous to the remaining large blocks of virgin forest in the BWCA; and 2) the EIS is inadequate under NEPA. MPIRG v. Butz, 401 F.Supp. 1276 (D.Minn.1975). In view of this holding, the district court permanently enjoined existing and future timber sales in the areas contiguous to the remaining virgin forest areas of the BWCA. Id. at 1334.

No useful purpose would be served by reciting the complicated facts of this case. That objective has been achieved in three other reported decisions. ³ We outline only the essential facts here.

In our prior opinion, we described the BWCA as follows:

The BWCA, located in northern Minnesota, is a unique natural resource with some 1,060,000 (sic) ⁴ acres of lakes, streams, and timber, which along with the adjoining Canadian Quetico-Superior forest forms the only canoe wilderness area in the world. The area contains more than 1,000 lakes larger than 10 acres, either connected by streams or convenient portages that allow for easy canoe travel through the wilderness area.

The BWCA is administered by the United States Forest Service as a Wilderness Area and as a part of the Superior National Forest. The Draft Management Plan of the Forest Service for the BWCA refers to the area as "unique, pristine, endangered, rugged, primitive, beautiful and fragile." Highly prized by many, including plaintiff MPIRG, the Wilderness Area affords recreational, scientific, and educational opportunities. It is also highly regarded by others, like the defendant paper and logging companies, who value the thousands of acres of marketable timber it contains.

MPIRG v. Butz, supra, 498 F.2d at 1316-1317.

The BWCA is divided into two zones pursuant to a regulation promulgated by the Secretary of Agriculture. ⁵ The Interior Zone is comprised of approximately 618,000 acres in which commercial timber cutting is not allowed. The Portal Zone is comprised of approximately 412,000 acres in which commercial timber cutting has historically been permitted and is presently allowed. The Interior Zone contains roughly 354,000 acres of virgin forest as that term has been used in this litigation. ⁶ The Portal Zone contains approximately 147,000 acres of virgin forest.

There are presently seven active timber sales within the Portal Zone of the BWCA. ⁷

                Six of the seven sales are subject to the district court's permanent injunction.  8  Approximately 5,000 acres of timber remain uncut within the enjoined sales.  The remaining uncut timber is virgin timber
                

The EIS and Management Plan before us were prepared with respect to all aspects of BWCA management. The EIS considers the favorable and adverse impacts of commercial timber cutting as well as the alternatives of such activity. The timber resource is described in the EIS. Six alternative timber cutting policies are considered which range from permitting logging throughout the BWCA to prohibiting logging throughout the BWCA. The Management Plan, which is designed to provide management direction for ten years, selects the timber policy considered under Alternative 3 in the EIS. That policy includes the following provisions: 1) the continuance of the two zone system of regulating commercial timber harvesting such harvesting is permitted in the Portal Zone (except with respect to timber within 400 feet of the shorelines) but prohibited in the Interior Zone; 2) the completion of existing timber sale contracts subject to mitigation measures designed to avoid certain adverse environmental effects; 3) the requirement that a complete Environmental Analysis Report (EAR) be prepared with respect to each sale; and 4) the requirement of prompt and appropriate cover restoration. ⁹

Each existing timber sale is discussed in the EIS. The size of each sale, the amount cut, the amount to be cut, the type of wood available, the geology, climate, soil, water, air, vegetation, wildlife, and scenic and aesthetic qualities are discussed with respect to the existing sales. A map of each sale is included within the EIS showing its location, the areas to be cut and the areas in which cutting is prohibited.

Furthermore, the EIS indicates that a complete EAR has been prepared with respect to each existing sale. ¹⁰ The EARs contain a discussion of the following: 1) the physical description of each sale; 2) the environmental factors which will be affected by completion of the sale; 3) favorable and adverse environmental effects of the sale; 4) various alternatives which range from terminating to completing the sale; 5) the relationship between short term uses of man's environment and maintenance of long term productivity; and 6) any irreversible and irretrievable commitment of resources.

The Forest Service is currently preparing a Timber Management Plan for the Superior National Forest, of which the BWCA is a part. This Plan will be accompanied by an EIS which will provide more detailed information on sale site selection, harvest rates and mitigation measures than is contained in the EIS and Plan before us. We assume it will also contain general information similar to that supplied in the EARs relating to each existing timber sale.

I. The Wilderness Act.

The first question is whether the Wilderness Act, 16 U.S.C. § 1131 et seq., prohibits logging in the virgin forest areas of the BWCA's Portal Zone. The district court found that " * * * logging in virgin forest areas destroys the primitive character of the area logged(,)" 401 F.Supp. at 1332, and held that the Wilderness Act prohibits logging in areas which are contiguous to remaining large blocks of virgin forest. Because of this construction, the district court declared 36 C.F.R. § 293.16, the BWCA regulation promulgated by the Secretary Our beginning point is the Wilderness Act itself. The Wilderness Act established the National Wilderness Preservation System whereby Congress assumed the authority to establish wilderness areas in the national forests. The Act evinces a desire of Congress to preserve and protect the natural condition of certain lands, designated "wilderness areas," for present and future generations of American people. 16 U.S.C. § 1131(a). To this end, Congress provided that there shall be no commercial enterprise, including commercial logging, within any wilderness area designated in the Act. 16 U.S.C. § 1133(c). This prohibition is not absolute however. Section 1133(c) itself provides that its prohibition is " * * * subject to existing private rights," and other exceptions in the Act.

of Agriculture pursuant to the Wilderness Act, invalid to the extent such logging was permitted. We hold that logging in the...