Sierra Club v. Espy, 93-5050

• Decision Date: 15 November 1994
• Docket Number: No. 93-5050,93-5050
• Citation: 38 F.3d 792
• Parties: 25 Envtl. L. Rep. 20,426 SIERRA CLUB, et al., Plaintiffs-Appellees, v. Mike ESPY, in his official capacity as Secretary of Agriculture, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 792

38 F.3d 792

25 Envtl. L. Rep. 20,426

SIERRA CLUB, et al., Plaintiffs-Appellees, v. Mike ESPY, in his official capacity as Secretary of

Agriculture, et al., Defendants-Appellants.

No. 93-5050.

United States Court of Appeals, Fifth Circuit.

Nov. 15, 1994.

Rehearing Denied Dec. 21, 1994.

Martin W. Matzen, Robert L. Klarquist, U.S. Dept. of Justice, Washington, DC, for appellants.

J. Michael Klise, Steven P. Quarles, Thomas R. Lundquist, Crowell & Moring, Washington, DC, James R. Cornelius, Zelesky, Cornelius, Hallmark, Roper & Hicks, Lufkin, TX, for intervenor Tex. Forestry & Southern Timbers.

James Angell, Bozeman, MT, Barbara Lowe, Philadelphia, PA, for Sierra Club and The Wilderness Soc.

Edward C. Fritz, Dallas, TX, for Tex. Comm. of Natural Resources.

Appeal from the United States District Court for the Eastern District of Texas.

Before HIGGINBOTHAM, JONES and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The district court issued a preliminary injunction barring the Forest Service from conducting even-aged management in any of the four Texas national forests. The injunction was based on the district court's finding of probable success on plaintiffs' claims under two statutes: the National Forest Management Act, 16 U.S.C. Secs. 1600-1614, and the National Environmental Policy Act, 42 U.S.C. Secs. 4321-4347. The government and the timber industry intervenors bring this interlocutory appeal challenging the district court's order.

We disagree with the district court's insistence that NFMA restricts even-aged management to exceptional circumstances. We are persuaded that the district court erected too high a barrier to even-aged management. The standard that even-aged management may be used only in exceptional circumstances goes to the heart of the finding by the district court of a likelihood of success on the merits and upsets the delicate balance struck by Congress between friends and foes of this harvesting method. We must vacate the preliminary injunction and remand.

I.

A.

The Forest Service of the Department of Agriculture is charged with administering the resources of this country's national forests "for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. Sec. 528. The principles of MUSYA were expressly incorporated into the statutory and regulatory scheme of NFMA. The pressures to enact NFMA came from many sources. On the one hand, there was increasing national concern over the Forest Service's use of clearcutting. On the other hand, Congress felt it necessary to counteract a Fourth Circuit decision which strictly construed the Organic Act of 1897 to effectively prohibit the practice of clearcutting in the national forests. See West Va. Div. of the Izaak Walton League of Am., Inc. v. Butz, 522 F.2d 945 (4th Cir.1975) (the Monongahela decision). The result was a compromise expressed in a statute repealing the portion of the Organic Act interpreted in the Monongahela decision, Pub.L. No. 94-588, Sec. 13, 1976 U.S.C.C.A.N. (90 Stat.) 2949, 2958, yet imposing new procedural and substantive restraints on the Forest Service.

Specifically, NFMA sets forth requirements for Land and Resource Management Plans under which the national forests are managed. The national forests are divided into management units, see 36 C.F.R. Sec. 200.2, and the Forest Service must prepare an LRMP for each unit. An LRMP must "provide for multiple use and sustained yield of the products and services obtained [from units of the National Forest System] ..., and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness...." 16 U.S.C. Sec. 1604(e)(1). Once an LRMP is in place, the Forest Service can decide to sell timber only after analyzing timber management alternatives and the sale's particular environmental consequences. Site-specific analysis, sometimes referred to as compartment-level analysis, must be consistent with the LRMP. Id. Sec. 1604(i).

Broadly stated, there are two ways to manage a forest's timber resources. The first method is even-aged management. See 36 C.F.R. Sec. 219.3. Even-aged management includes clearcutting, where all the trees are cut down; seed tree cutting, where most of the trees are cut down, leaving only a few to naturally seed the cut area; and shelterwood cutting, where about double the number of trees are left standing as would be under the seed tree method. Even under the least intrusive even-aged management technique, shelterwood cutting, only about sixteen trees per acre remain after a cut. Moreover, under seed tree cutting, the older trees left to naturally seed the cut area are later removed. Even-aged management results in stands of trees that are essentially the same age. Before choosing to clearcut a portion of the forest, the Forest Service must find that clearcutting is the "optimum method" for achieving the objectives and requirements of the LRMP. 16 U.S.C. Sec. 1604(g)(3)(F)(i). Similarly, before choosing to seed tree cut or shelterwood cut, the Forest Service must find that those methods are "appropriate" for achieving the objectives and requirements of the LRMP. Id.

The second method of timber resource management is uneven-aged management, also known as selection management. See 36 C.F.R. Sec. 219.3. Uneven-aged management encompasses both single tree selection and group selection. Group selection involves cutting small patches of trees, while single tree selection involves selecting particular trees for cutting. Uneven-aged management maintains a continuous high-forest cover, and the stands are characterized by a number of differently aged trees.

The process prescribed by NFMA is intertwined with NEPA. NEPA requires federal agencies to prepare a detailed Environmental Impact Statement to be included in every major federal action significantly affecting the quality of the human environment. 42 U.S.C. Sec. 4332(2)(C). NEPA is, of course, a procedural statute, mandating a process rather than a result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989); see Sabine River Auth. v. United States Dep't of Interior, 951 F.2d 669, 676 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 75, 121 L.Ed.2d 40 (1992). NEPA regulations are made applicable to NFMA by 16 U.S.C. Sec. 1604(g)(1). By regulation, the Forest Service has committed to prepare an EIS before adopting an LRMP. 36 C.F.R. Sec. 219.10(b). Once the Forest Service has adopted an LRMP, its specific actions in implementing that plan will typically be undertaken after preparation of a site-specific Environmental Assessment. An EA is a concise document that briefly discusses the relevant issues and either reaches a conclusion that preparation of a site-specific EIS is necessary or concludes with a finding of no significant impact, in which case preparation of an EIS is unnecessary. 40 C.F.R. Sec. 1508.9. A finding of no significant impact is warranted when the Forest Service finds the action is one anticipated in the EIS, consistent with the EIS, and sufficiently explored by the EIS.

Finally, an EA may be tiered to an existing and broader EIS. Id. Sec. 1508.28. "Tiering refers to the coverage of general matters in broader environmental impact statements ... with subsequent narrower statements or environmental analyses ... incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared." Id. The EAs in this case are tiered to the existing EIS.

B.

On May 20, 1987, the Forest Service's Regional Forester signed the Record of Decision approving the LRMP and the Final EIS for the Texas national forests. The FEIS examined thirteen alternatives for managing the forests. Two of the alternatives provided for uneven-aged management of the forests' timber resources and the remainder for even-aged management. The Forest Service selected an alternative that provided for even-aged management. On June 8, 1987, the Texas Committee on Natural Resources, TCONR, filed an administrative appeal with the Forest Service challenging both the FEIS and the LRMP. TCONR also requested a stay of all timber operations under the even-aged management system.

Meanwhile, litigation was pending in federal court. TCONR, the Sierra Club, and the Wilderness Society had sued the Forest Service claiming, inter alia, that the Forest Service's activities violated the Endangered Species Act. The district court agreed, finding that even-aged management in the Texas forests jeopardized the red-cockaded woodpecker, an endangered species. Sierra Club v. Lyng, 694 F.Supp. 1260, 1272-73 (E.D.Tex.1988). The district court permanently enjoined even-aged management in the affected areas. Id. at 1278. The government appealed the district court's order, and we affirmed in relevant part. Sierra Club v. Yeutter, 926 F.2d 429, 440 (5th Cir.1991).

The permanent injunction affected management of approximately one-third of Texas forests. On April 1, 1989, the reviewing officer hearing TCONR's administrative appeal of the FEIS and the LRMP decided not to rule on the merits of TCONR's challenge but instead remanded the LRMP for reanalysis. ¹ The reviewing officer reasoned that a change affecting one-third of Texas forests affects the level of goods and services that the forests can supply under the current LRMP. Forest Service Decision at 4. The reviewing officer promulgated interim guidelines to govern management of the forests until the Forest Service issued a new LRMP. Id. at 5. These guidelines provide that the appropriate timber management system is to be determined on a site-specific basis. Id. Specifically, even-aged management can be used if the Forest Service determines it to be appropriate to meet the "objectives and requirements" of the existing LRMP. Id. The Forest...