Sierra Club v. Block, L-85-69-CA.

• Decision Date: 04 June 1985
• Docket Number: No. L-85-69-CA.,L-85-69-CA.
• Citation: 614 F. Supp. 134
• Parties: SIERRA CLUB, a non-profit corporation; the Wilderness Society, a non-profit corporation, Texas Committee on Natural Resources, a non-profit trust v. John R. BLOCK, in his official capacity as Secretary of Agriculture, et al.
• Court: U.S. District Court — Eastern District of Texas

614 F. Supp. 134

SIERRA CLUB, a non-profit corporation; the Wilderness Society, a non-profit corporation, Texas Committee on Natural Resources, a non-profit trust

v.

John R. BLOCK, in his official capacity as Secretary of Agriculture, et al.

No. L-85-69-CA.

United States District Court, E.D. Texas, Lufkin Division.

June 4, 1985.

Larry Daves, Daves & Hahn, Tyler, Tex., Douglas L. Honnold, Sierra Club Legal Defense Fund, Inc., Denver, Colo., for plaintiffs.

Robert Wortham, U.S. Atty., Ruth L. Harris, Asst. U.S. Atty., Tyler, Tex., for defendants.

ORDER

STEGER, District Judge.

I. BACKGROUND

On May 24, 1985, the Court heard the plaintiff's Motion for a Preliminary Injunction together with the government's responses to the plaintiff's Motion. The focus of this dispute concerns the effectiveness of cutting pine trees to control the spread of Southern Pine beetles in Texas Wilderness Areas.¹ Plaintiffs contend that the Forest Service's present control techniques should be more carefully examined in a specific Environmental Impact Statement. The government believes exhaustive research has already been completed that establishes the usefulness of present control techniques.

Pending a trial on the merits and the possible preparation of a new impact statement, the plaintiffs have asked this Court to halt all timber cutting in the Texas Wilderness Areas. This Court is unwilling to impose such a rigid and comprehensive restraint on the management of these areas in light of the disastrous effects it could have. The Court finds it necessary, however, to grant plaintiffs some limited relief as outlined below.

To merit preliminary injunctive relief, the plaintiffs must establish four facts: (1) There is a substantial likelihood that plaintiffs will succeed on the merits, (2) there is a substantial threat of irreparable harm absent an injunction, (3) the irreparable harm threatened is greater than the harm that an injunction could cause, and (4) the public interest would be served by issuing an injunction. Tubwell v. Griffith, 742 F.2d 250, 251 (5th Cir.1984); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). Because the Court is unwilling to grant plaintiffs' draconian request, yet finds it necessary to grant some relief, these four elements must be examined twice.

II. PLAINTIFFS' REQUESTED RELIEF

A. Success on the Merits

For the purposes of this motion, the plaintiffs chose to develop only one of their three claimed violations. This discussion will be limited, therefore, to the likelihood that plaintiffs would succeed on the merits of the National Environmental Policy Act (NEPA) claim.

In the brief supporting their application for a preliminary injunction, the plaintiffs make the assumption that no Environmental Impact Statement was prepared prior to choosing a method for the control of Southern Pine Beetles in Texas. In response, the government enumerated five Environmental Impact Statements,² one Environmental Assessment with two amendments,³ and numerous reports and studies⁴ all directed in whole or in part to the control of beetle infestations in the Texas National Forests. The question now is not whether these documents exist, but whether they are sufficient to comply with the requirements of NEPA.

In general, NEPA requires all federal agencies to evaluate any unavoidable adverse environmental impacts that may attend agency actions. Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 103 S.Ct. 1556, 1560, 75 L.Ed.2d 534 (1983); 42 U.S.C. § 4332(C). NEPA's ultimate goal is to ensure that federal agencies make fully informed and well-considered decisions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1978). To attain that goal, NEPA created the Council on Environmental Quality and empowered it to promulgate regulations designed to guide federal agencies in the preparation of the Environmental Impact Statements that were vaguely defined by NEPA. 42 U.S.C. §§ 4342, 4344.

One section of the Council's regulations has earned a spotlight in this action. See 40 C.F.R. § 1508.28 (1984). The government maintains that its five prior Environmental Impact Statements discussed the pine beetle issue in a broad framework. Its subsequent Environmental Assessment incorporated the findings of these earlier statements and examined the control issue only in regard to the Texas Wilderness Areas. In the government's opinion, this procedure satisfies NEPA's review requirements as outlined in the Council's regulations.

Plaintiffs contend that the environmental assessment and its two amendments are insufficient to allow the government to make a reasoned decision in this case. Plaintiffs have cited three cases where courts have decided that Environmental Assessments were inadequate, yet all three are distinguishable from the present action. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), an Environmental Assessment was prepared analyzing the environmental impacts from the construction of a gravel logging road in a section of the Nezpearce National Forest in Idaho. The assessment did not discuss the adverse impacts of the timber cutting that the road was designed to facilitate, however. The court ordered the compilation of an Environmental Impact Statement that would consider the cumulative future impacts of the road and subsequent timber cutting. 753 F.2d at 760. Similarly, in Conner v. Burford, 605 F.Supp. 107, 22 E.R.C. 1605 (D.Montana 1985), an environmental assessment considered the effects of leasing mineral rights in the Flathead and Gallatin National Forests of Montana. The assessment failed to consider the impact of possible development of those mineral rights after they were leased. The court ordered a new statement that would account for these potentially deleterious effects. 605 F.Supp. 107, 22 E.R.C. at 1608.

In both Thomas and Conner, the environmental assessments were insufficient because they failed to consider potentially harmful developments that were certain to flow from the initial agency actions. It was as if the government had examined the consequences of building a dam without considering the effects of the water that would collect behind the dam. No such deficiency infects the assessment in this action. The cutting of timber to control pine beetles is not a necessary prelude to other, more extensive activities.

The third case cited by plaintiffs to attack the sufficiency of the assessment is National Wildlife Federation v. U.S. Forest Service, 592 F.Supp. 931 (D.Oregon 1984). Environmental groups filed suit to halt the sale of timber from the Siuslaw National Forest in Oregon. The trial court decided that the Environmental Assessments were inadequate for two reasons. First, a separate assessment was prepared for each harvest, thus preventing an evaluation of the cumulative effects of all the harvests. 592 F.Supp. at 942. By contrast, the assessment in this case is directed to an evaluation of the overall impacts from beetle control operations. There is not a separate assessment prepared for each area controlled. Second, the Oregon assessments failed to discuss the efficacy of the measures planned to prevent landslides in the harvested areas. 592 F.Supp. at 943. By contrast, the plaintiffs in this action failed to suggest any similar omission in the Environmental Assessment now under consideration.

That Environmental Assessment, issued in July of 1983, considers all of the potentially adverse environmental implications that could result from control of Southern Pine beetles in what were then "RARE II" Recommended Wilderness and Further Planning areas. In addition, it reviews the consequences of alternative methods of control and of no control. The second amendment to the assessment, which is in effect an additional assessment, further investigates the effects of beetle control in the new Texas Wilderness Areas.

In light of the facts presently developed, the Court believes that the defendants have evaluated the environmental effects of the control program in good faith, objectively, and in detail, and they have examined the alternatives sufficiently to permit a reasoned choice from among various options. See Texas Committee on Natural Resources v. Marsh, 736 F.2d 262, 266 (5th Cir.1984). Under these circumstances, it is apparent that the government has complied with NEPA, and plaintiffs have failed to demonstrate the likelihood of success on the merits.

B. Irreparable Harm

For the purposes of deciding this motion, the Court will presume that the loss of a significant number of trees constitutes an irreparable harm, at least to the extent that decades are required to replace the lost trees and their accompanying undergrowth. Once this presumption is adopted, however, one of the unique features of this case becomes apparent. If the plaintiffs are correct, continued timber cutting will mean the loss of thousands of pine trees in Texas Wilderness Areas for no valid reason. If the government is correct, a cessation of timber cutting will lead to the proliferation of Southern Pine beetles and the loss of even more thousands of pine trees in the Wilderness Areas. Either way, irreparable harm results. Since the merits of these contrasting positions remain to be determined, the resolution of this dilemma must lie in the balancing of the two potentially irreparable losses.

C. Balancing the Losses

To satisfy the third prerequisite for injunctive relief, the irreparable harm identified by the movant must be greater than the harm that an injunction could cause. It is in this regard that the Court finds the plaintiffs' motion at its weakest.

The irreparable harm identified by the plaintiffs consists of the trees that will be cut as the Forest Service's control program continues. The harm is easily identified and quantified. The losses are certain to occur. They are not without a purpose, however.

The Forest...