Sierra Club v. Espy, Civ. A. No. L-85-69-CA.

• Citation: 822 F. Supp. 356
• Decision Date: 12 May 1993
• Docket Number: Civ. A. No. L-85-69-CA.
• Parties: SIERRA CLUB, et al., Plaintiffs, v. Mike ESPY, In His Official Capacity as Secretary of Agriculture, et al., Defendants.
• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas

822 F. Supp. 356

SIERRA CLUB, et al., Plaintiffs, v. Mike ESPY,¹ In His Official Capacity as Secretary of Agriculture, et al., Defendants.

Civ. A. No. L-85-69-CA.

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

May 12, 1993.

COPYRIGHT MATERIAL OMITTED

Douglas Honnold, Denver, CO, Edward Fritz, Dallas, TX, Barbara Lowe, Houston, TX, Larry Daves, San Antonio, TX, for plaintiffs.

Daniel Bowen, Temple, TX, Ruth Harris Yeager, Tyler, TX, Wells D. Burgess, Jean Mellor, Katheryn Toffenetti, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

ROBERT M. PARKER, Chief Judge.

Before the Court are: the Fourth Amended Complaint of Plaintiff Texas Committee on Natural Resources (TCONR), which has been interpreted by the Court as containing what amounts to a series of motions—for a preliminary injunction, a declaratory judgment, and a permanent injunction prohibiting a number of imminent timber sales by Defendants in the Texas National Forests, as well as all future sales authorizing even-aged timber management;² Federal Defendants' Motion for Summary Judgment on TCONR's Even-Aged Claims—in response to the above motions; the Report and Recommendation of the Honorable Judith K. Guthrie, United States Magistrate Judge for the Eastern District of Texas, on the controversy presented by the above motions; Plaintiffs' Objections to Magistrate's Proposed Findings and Recommendations on Even-Aged Claim, along with Plaintiffs' Urgent Motion for Injunction Under 5 U.S.C. § 705; Federal Defendants' Response to Plaintiffs' Objections to Report and Recommendation of the United States Magistrate Judge as Modified for Clerical Error. Also before the Court are: Defendants' Request for Clarification of Order;³ and Plaintiffs' Response to Request for Clarification.

The Court has read and reread the thorough work of the Magistrate Judge. Yet, for the following reasons, the Plaintiffs' motion for preliminary injunction must be granted as to Defendants' even-aged management agenda—pending final resolution of the plaintiffs' claims for declaratory relief and permanent injunction under the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA).⁴

I. Background

The current controversy over timber sales dates back to the May 20, 1987, Record of Decision by the Regional Forester promulgating the Final Land and Resource Management Plan, National Forests and Grasslands —Texas, and its accompanying Final Environmental Impact Statement. Regarding the NFMA in particular, Plaintiffs contend that the defendants' even-aged logging agenda is illegal in that the agency has not complied with the constraints on the Service's choice of even-aged management techniques contained in that Act. And regarding the NEPA, Plaintiffs argue that the defendants' even-aged logging agenda is illegal in that determinations in favor of even-aged management were made without sufficient examination of various procedural requirements of the NEPA.

In an earlier proceeding, the Court refused to waive the (administrative) exhaustion requirement relative to Plaintiffs' NEPA and NFMA claims. Sierra Club v. Lyng, 694 F.Supp. 1256 (E.D.Tex.1988). At that time, it was uncontested that the appeal by TCONR of the LRMP-FEIS was pending before the Forest Service. Plaintiffs argued that the Court should waive the exhaustion requirement because of the irreparable harm that would occur between then and the time the administrative appeal was decided; and the plaintiffs said that the Forest Service might delay the resolution of the administrative appeal to prolong its current tree cutting practices. At the Court's 1988 hearing, Wells D. Burgess, Esq., counsel for the defendants, assured the Court "that the appeal would most likely be decided in eight months from the hearing date (by September 15, 1988), but no longer than fifteen months from the hearing date (by April 15, 1989)." Lyng, id., 694 F.Supp. at 1258. The Court concluded that the anticipated delay was not so unreasonable as to warrant the Court's intervention at that point in the administrative proceedings. Lyng, id.

However, in 1989, the Chief of the Forest Service announced that there would be no administrative decision on Plaintiffs' LRMP-FEIS appeal because a new LRMP and FEIS were required in view of the constraints imposed by this Court's Endangered Species Act decision in Sierra Club v. Lyng, 694 F.Supp. 1260 (E.D.Tex.1988), aff'd in part, vacated in part, and remanded by Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).⁵

The NFMA and NEPA-oriented timber sale controversy has since been referred to the Honorable Judith K. Guthrie, United States Magistrate Judge, for a report and recommendation. The Report and Recommendation of the United States Magistrate Judge concludes that Plaintiffs are not entitled to certain sorts of judicial review of their claims against the defendants' logging agenda because Plaintiffs have not exhausted their administrative remedies (despite the fact that there is no way for them to do so). See Report and Recommendation of the United States Magistrate Judge, pp. 3-4. According to the Magistrate Judge's Report and Recommendation: "through no fault of their own, Plaintiffs have been unable to exhaust administrative remedies so that they can directly attack the 1987 LRMP-FEIS on judicial review." Further, the Report and Recommendation of the United States Magistrate Judge concludes that Plaintiffs are foreclosed from judicially attacking the Environmental Assessments (EAs) used to justify the proposed sales as invalid because based on an allegedly invalid 1987 LRMP-FEIS:

"The validity of the `goal' was established in the LRMP-FEIS and may not be litigated here. Rather, the question for this Court is whether an EA contains facts showing that the proposed harvest is a rational means of achieving that goal." Id. at p. 4 (emphasis added).⁶

Subsequent to receipt of the Report and Recommendation of the United States Magistrate Judge and the parties' responses thereto, the Court allowed the defendants to proceed with a limited number of seed-tree cuts in the nine scheduled timber sales. Order of February 9, 1993. The outstanding question, resolved in this Memorandum Opinion and Order, is whether the Court should enjoin the defendants from continuing with their even-aged logging agenda.

II. Standard of Review

The Court must waive the administrative exhaustion requirement in this case because of the excessive "delay" in (or, rather, the absolute shut-down of) Defendants' administrative appeal apparatus. Under both their general equitable powers and powers granted under the APA, courts are to insure that statutory rights are not denied by agency action or inaction. While it is generally accepted that federal agencies are entitled to a presumption of good faith and regularity in arriving at their decisions, Sierra Club v. Costle, 657 F.2d 298, 334 (D.C.Cir. 1981), the presumption is not irrebuttable. Federal courts would be abdicating their Constitutional role were they to simply "rubber stamp" agency decisions in the face of complex issues, rather than insuring that such decisions accord with clear congressional mandates. As Judge J. Skelly Wright so aptly put it: "The judicial role ... is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy." Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1111 (D.C.Cir. 1971).

The APA requires that the agency undertake a "thorough, probing, in-depth review" of its actions in light of, or relative to controlling, substantive, statutory requirements. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (Marshall, J.). This APA-delineated standard of review insures that the agency's ultimate actions actually accord with the substantive "outer boundaries" or limitations marked by the NFMA, for example. See e.g., Texas Committee on Natural Resources v. Bergland, 573 F.2d 201, 210 (5th Cir.) ("The NFMA is a set of outer boundaries within which the Forest Service must work. Within its parameters, the management decision belongs to the agency and should not be second-guessed by a court.") (emphasis added), cert. denied, 439 U.S. 966, 99 S.Ct. 455, 58 L.Ed.2d 425 (1978).

The APA, at 5 U.S.C. § 706, provides in relevant part that "the reviewing court shall decide all relevant questions of law, interpret Constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." In particular, the reviewing court is to hold unlawful and set aside agency action, findings, and conclusions when they are found to be: arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. § 706(2)(A) & (C).

Moreover, the United States Supreme Court has ruled that ambiguous statutes are to be deemed provisions of policy discretion (i.e., for the agency), rather than of purely legal interpretation (i.e., for the courts) — and are thus properly "deferred" by courts to agencies for (reasonable) policymaking. Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (Stevens, J.). Accord Presley v. Etowah County Commission, ___ U.S. ___, ___, 112 S.Ct. 820, 831, 117 L.Ed.2d 51 (1992) (Kennedy, J.); United States v. Alaska, ___ U.S. ___, 112 S.Ct. 1606, 118 L.Ed.2d 222 (1992) (White, J.). Chevron thus dictates that it is the clarity of the substantive statutory law, not merely the existence of it, which separates law and policy and accordingly dictates the appropriate degree of judicial review under the APA. See Chevron, supra, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9 ("The judiciary is the final authority on...