Region 8 Forest Service Timber Purchasers Council v. Alcock

• Decision Date: 21 June 1993
• Docket Number: No. 91-8892,91-8892
• Citation: 993 F.2d 800
• Parties: , 23 Envtl. L. Rep. 21,051 REGION 8 FOREST SERVICE TIMBER PURCHASERS COUNCIL, Hankins Lumber Company, Inc., Hood Industries, Inc., Hunt Plywood Company, Inc., Southern Timber Purchasers Council, Plaintiffs-Appellants, v. John E. ALCOCK, in his Official Capacity as Regional Forester for Region 8 of the U.S. Forest Service; F. Dale Robertson, in his Official Capacity as Chief of the U.S. Forest Service; James W. Pulliam, Jr., in his Official Capacity as Regional Director of Region 4 of the U.S. Fish and Wildlife Service; Manuel Lujan, in his Official Capacity as Secretary of the U.S. Department of the Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 800

993 F.2d 800

62 USLW 2023, 23 Envtl. L. Rep. 21,051

REGION 8 FOREST SERVICE TIMBER PURCHASERS COUNCIL, Hankins

Lumber Company, Inc., Hood Industries, Inc., Hunt

Plywood Company, Inc., Southern Timber

Purchasers Council, Plaintiffs-Appellants, v. John E. ALCOCK, in his Official Capacity as Regional

Forester for Region 8 of the U.S. Forest Service; F. Dale

Robertson, in his Official Capacity as Chief of the U.S.

Forest Service; James W. Pulliam, Jr., in his Official

Capacity as Regional Director of Region 4 of the U.S. Fish

and Wildlife Service; Manuel Lujan, in his Official

Capacity as Secretary of the U.S. Department of the

Interior, Defendants-Appellees.

No. 91-8892.

United States Court of Appeals,

Eleventh Circuit.

June 21, 1993.

Alexander Stephens Clay, IV, Mary Lillian Walker, Kilpatrick & Cody, Atlanta, GA, Steven P. Quarles, Thomas R. Lundquist, John A. MacLeod, Crowell & Moring, Washington, DC, for plaintiffs-appellants.

Daniel A. Caldwell, III, Asst. U.S. Atty., Atlanta, GA, Jean Williams Mellor, Wildlife & Marine Resources Section, and Ellen Athas Ferlo, U.S. Dept. of Justice, Environmental and Natural Resources Div., General Litigation Section, William B. Lazarus, Jacques B. Gelin, Dept. of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and JOHNSON, Senior Circuit Judge.

JOHNSON, Senior Circuit Judge:

This case centers on actions taken by the United States Forest Service to protect the red-cockaded woodpecker (the "Woodpecker") in the Southern Region (formerly Region 8) of the National Forest System. The Southern Timber Purchasers Council (formerly Region 8 Forest Service Timber Purchasers Council) (the "Council") is an affiliation of purchasers of national forest timber in the Southern Region. Hankins Lumber Co., Inc., Hood Industries, Inc., and Hunt Plywood Co., Inc., (the "Timber Companies") are members of the Council, and had contracts with the Forest Service to cut timber in national forests in the Southern Region. Together, these parties brought suit against the Secretary of the Interior, as well as various officials of the Forest Service and the Fish and Wildlife Service (collectively, the "Government"), challenging actions taken by the Forest Service to protect the Woodpecker. They now appeal the district court's orders (1) dismissing their claim under the National Environmental Policy Act ("NEPA") for lack of standing, (2) entering summary judgment for the Government on their claims under the Endangered Species Act (the "Species Act") for lack of standing, and (3) entering summary judgment on the merits for the Government on their claim under the National Forest Management Act (the "Forest Management Act"). Because we find that the Council and the Timber Companies lack standing to sue under any of these statutes, we affirm the district court's dismissal of the NEPA claim and entry of summary judgment on the Species Act claims, and we vacate the district court's entry of summary judgment on the Forest Management Act claim with instructions to dismiss the claim for lack of jurisdiction.

I. STATEMENT OF THE CASE

A. Background facts

The Woodpecker ranges in pine forests throughout the southeastern portion of the United States, living in clans. Each clan makes its home in groups of live pine trees known as a colony site. To survive, the Woodpecker needs a foraging habitat with specific characteristics close to the colony site. Extensive clearing of southeastern pine forests in the first half of this century brought the Woodpecker to the brink of extinction, resulting in the listing of the Woodpecker in 1970 as an endangered species. The vast majority of remaining Woodpecker clans live in colony sites that are located on public lands, principally the various national forests in the Southern Region.

The Species Act requires the Forest Service, in consultation with the Fish and Wildlife Service, to ensure that its actions are not likely to jeopardize the continued existence of any endangered species, such as the Woodpecker. 16 U.S.C.A. § 1536(a)(2) (West 1985); 50 C.F.R. § 402.13-.14 (1992). To discharge this obligation, in 1985 the Forest Service completed a Woodpecker Chapter for its Wildlife Habitat Management Handbook that was based upon the Fish and Wildlife Service's recommended recovery plan for the Woodpecker. The Woodpecker Chapter identified certain measures to protect and conserve the Woodpecker. After engaging in formal consultation, the Fish and Wildlife Service approved the Woodpecker Chapter as submitted by the Forest Service, stating that complete implementation of the Chapter would satisfy the requirements of the Species Act.

In addition to its obligations under the Species Act, the Forest Service is required by the Forest Management Act to prepare a comprehensive land and resource management plan for each national forest. 16 U.S.C.A. § 1604. Among other things, these comprehensive plans address how wildlife will be managed and approximately how much timber the Forest Service will permit to be harvested annually. See 16 U.S.C.A. § 1604(e); 36 C.F.R. § 219.1 (1992). After the Woodpecker Chapter was approved by the Fish and Wildlife Service, the Forest Service incorporated the Woodpecker Chapter into its forest plans for each of the national forests in the Southern Region with a Woodpecker population.

Although the Woodpecker Chapter was incorporated into the forest plans soon after its approval, the Woodpecker population continued to decline. Realizing that the Woodpecker Chapter might need to be revised, the Forest Service initiated informal consultation with Fish and Wildlife Service in the fall of 1988 regarding proper management for the Woodpecker. See 50 C.F.R. § 402.13. ¹ Soon thereafter, the Forest Service received eight letters from the Sierra Club Legal Defense Fund threatening citizen suits under the Species Act, see 16 U.S.C.A. § 1540(g)(2), if the Forest Service continued its "inadequate management practices" for protecting the Woodpecker. The Forest Service proceeded to develop a three-phase strategy for protecting the Woodpecker in conjunction with both the Council and the Sierra Club Legal Defense Fund, and through informal consultation with the Fish and Wildlife Service.

On March 27, 1989, the Forest Service implemented the first phase of its new Woodpecker strategy--the immediate adoption of a temporary policy governing the cutting on timber contracts within 3/4 mile of a Woodpecker colony (the "Policy"). The Policy strictly limited the permissible methods for timber harvesting in those areas within 3/4 mile of a Woodpecker colony, and was applicable to all awarded and pending timber contracts, advertised timber sales, and proposed timber sales.

The Timber Companies each held contracts subject to the Policy. Those contracts included an endangered species provision, which permitted the Forest Service to cancel or unilaterally modify the contracts "if the protection measures prove inadequate." ² The Policy directed Forest Service contracting officers to request the holders of timber contracts to suspend logging on the restricted areas pursuant to the endangered species clause, and instructed the contracting officers to "[m]ake maximum possible effort to provide timber for deleted volumes" by mutual contract modification. If modification would change the sale conditions so significantly that the purchaser could not recover its original profit margin, the Policy authorized the cancellation of the contract. Each of the Timber Companies agreed to modify all of their contracts subject to the Policy.

B. Procedural history

1. Administrative procedure

On March 31, 1989, the Council appealed the adoption of the Policy, alleging violations of the Administrative Procedure Act, NEPA and the Forest Management Act. See 36 C.F.R. § 217. The Forest Service rejected the appeal, stating that the adoption of the Policy was not subject to administrative appeal. See 36 C.F.R. § 217.3(a)(1). However, the Forest Service directed the Regional Forester for the Southern Region (1) to conduct an environmental analysis, see 40 C.F.R. § 1508.9 (1992), and (2) to prepare an appropriate decision document referencing the Species Act, NEPA, and the Forest Management Act.

The Regional Forester complied with this directive by (1) issuing a biological evaluation of the Policy's effects and (2) issuing a decision on June 26, 1989, that documented the rationale and environmental considerations behind the Policy. The Council appealed the Regional Forester's decision, and notified the Secretaries of the Interior and Agriculture that it intended to file a citizen suit under the Species Act. See 16 U.S.C.A. § 1540(g)(2). On October 25, 1989, the Associate Deputy Chief of the Forest Service affirmed the prior decision of the Regional Forester.

2. District court

On December 7, 1989, the Council and the Timber Companies filed a four count complaint for declaratory and injunctive relief alleging (1) that the Forest Service had failed to fully implement the Woodpecker Chapter in violation of the Species Act, 16 U.S.C.A. § 1536, and that the Forest Service had illegally adopted the Policy (2) in violation of the Species Act, 16 U.S.C.A. § 1536, (3) in violation of NEPA, 42 U.S.C.A. § 4332(2) (West 1977), and (4) in violation of the Forest Management Act, 16 U.S.C.A. § 1604(g).

On the Government's motion, the district court dismissed the NEPA claim on the ground that the Council and the Timber Companies lacked standing under NEPA to bring suit. After extensive briefing, the district court entered summary judgment for the Government on the remaining claims, holding that the Council and the Timber Companies lacked standing to bring suit under the Species Act and that the Forest Service's adoption of the Policy did not violate the Forest Management A...