Sierra Club v. Glickman

Citation974 F.Supp. 905
Decision Date14 August 1997
Docket NumberNo. 9:85-CV-69.,9:85-CV-69.
PartiesSIERRA CLUB, et al., Plaintiffs, v. Daniel GLICKMAN, Secretary of Agriculture, et al., Defendants, and Texas Forestry Association and Southern Timber Purchasers Council, Defendant-Intervenors.
CourtU.S. District Court — Eastern District of Texas

Mary Alice Van Kerrebrook, Meyer & Cribbs, Houston, TX, Douglas Loie Honnold, Sierra Club Legal Defense Fund, Bozeman, MT, Martha McCabe, Austin, TX, for Sierra Club.

Barbara Lowe, Philadelphia, PA, Ingrid Karin Hansen, Ashley Kingsland Wadick, Austin, TX, for Wilderness Society.

Edward C. Fritz, Dallas, TX, Barbara Lowe, Philadelphia, PA, for Texas Committee on Natural Resources.

Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, for R. Max Peterson.

Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Jean Williams, U.S. Dept. of Justice, Martin W. Matzen, U.S. Dept. of Justice, Appellate Section, Kathryn Toffenetti, U.S. Dept. of Agriculture, Office of General Counsel, Washington, DC, Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, Nadira Clarke, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC, for John E. Alcock, William M. Lannan, F. Dale Robertson.

Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Wells D. Burgess, U.S. Dept. of Justice, Land & Natural Resources Div., Jean Williams, U.S. Dept. of Justice, Martin W. Matzen, U.S. Dept. of Justice, Appellate Section, Kathryn Toffenetti, U.S. Dept. of Agriculture, Office of General Counsel, Washington, DC, Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, Nadira Clarke, U.S. Dept. of Justice, Land & Natural Resources Div., Stephanie M. Parent, Lisa A. Holden, U.S. Dept. of Justice, Environmental & Natural Resources, General

Litigation Section, Washington, DC, for Daniel Glickman.

Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Wells D. Burgess, U.S. Dept. of Justice, Land & Natural Resources Div., Jean Williams, U.S. Dept. of Justice, Kathryn Toffenetti, U.S. Dept. of Agriculture, Office of General Counsel, Washington, DC, Daniel A. Bowen, U.S. Dept. of Agriculture, Office of General Counsel, Temple, TX, for John R. Block.

Stephanie M. Parent, Lisa A. Holden, U.S. Dept. of Justice, Environmental & Natural Resources, General Litigation Section, Washington, DC, for Federal Defendants.

Ruth Harris Yeager, Asst. U.S. Atty., U.S. Attorney's Office, Tyler, TX, Wells D. Burgess, U.S. Dept. of Justice, Land & Natural Resources Div., Stephanie M. Parent, Lisa A. Holden, U.S. Dept. of Justice, Environmental & Natural Resources, General Litigation Section, Washington, DC, for Gloria manning, Michael Dombeck, Ronald Raum.

John C. Fleming, James Roy Cornelius, Zeleskey Cornelius Hallmark Roper & Hicks, Lufkin, TX, Stephen P. Quareles, J. Michael Klise, Thomas R. Lundquist, Crowell & Moring, Washington, DC, for Texas Forestry Ass'n, Southern Timber Purchasers Council.

MEMORANDUM OPINION, ORDER, AND INJUNCTION WITH SUPPORTING FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE EVEN-AGED MANAGEMENT AND INVENTORYING-MONITORING ISSUES

SCHELL, Chief Judge.

The Sierra Club, Texas Committee on Natural Resources ("TCONR"), and The Wilderness Society (collectively "Plaintiffs") brought this action challenging the United States Forest Service's management of the National Forests in Texas. The Texas Forestry Association and Southern Timber Purchasers Council (collectively "Timber Intervenors") have intervened. The broad issue before the court is whether the Forest Service is complying with the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-14 and related regulations, 36 C.F.R. § 219.1-29 (hereinafter "NFMA regulations" or "regulations"). The NFMA and regulations generally require: (1) diversity of plant and animal communities as well as tree species, (2) protection of key resources, and (3) inventorying and monitoring for key resources, diversity, and effects of management activities. Considering the evidence adduced at trial, legal argument of counsel, and the parties' respective proposed findings of fact and conclusions of law, the court is of the opinion that the Forest Service has stepped outside its discretion and acted arbitrarily and capriciously with respect to (1) protecting the key resources of soil and watershed and (2) inventorying and monitoring the wildlife resource, forest diversity, and whether the Forest Service is meeting its objectives and adhering to standards and guidelines with respect to wildlife.

With respect to the soil resource, the evidence shows that the Forest Service's management activities are causing severe soil erosion and loss of essential organic matter. This loss of soil and organic matter substantially and permanently affects the productivity of the land. Without rich forest soil, plant and animal communities suffer as well as the forest land's ability to produce healthy timber stands. With respect to the watershed resource, Forest Service management practices are causing substantial and permanent (1) erosion within waterways, (2) deposit of soil, silt, and sedimentation in waterways, and (3) disruption of water run-off. Additionally, the Forest Services's practice of permitting timber harvesting in streamside management zones exacerbates the erosion and sedimentation problems and causes the deposit of logging debris in streams. This derogation of the streams (1) destroys plant, animal, and fish habitat and (2) contributes to flooding.

With respect to the Forest Service's inventorying and monitoring obligations, the Forest Service is not collecting population data on wildlife to ensure viable populations. The Forest Service instead is relying on hypothetical models to assess habitat capability and then assuming that viable populations of species are in existence and well-distributed on the forest land. The Forest Service's failure to collect population data forecloses its ability to evaluate forest diversity in terms of wildlife and to adequately determine the effects of its management activities. The Forest Service's failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land. Sufficient inventorying and monitoring of forest resources is vital to making sound, forest-management decisions and ultimately protecting the forest resources from permanent impairment. In light of the Federal Defendants' noncompliance with the NFMA and regulations, the court will enjoin certain timber harvesting activities until the Forest Service demonstrates compliance "on-the-ground."

BACKGROUND

This case has spanned over a decade and involved many complex issues.1 In this stage of the case, Plaintiffs allege that the Forest Service is violating the NFMA and regulations. The court articulated the issues for trial in a prior order:

(1) Whether the Forest Service has, in practice, as required by the regulations, kept current and adequate inventories and monitoring data for key resources in the national forests in Texas; (2) Whether the Forest Service has, in practice, as required by the regulations, protected key resources in its application of even-aged management techniques; and (3) Whether the Forest Service has, in practice, as required by the regulations, provided for diversity of plant and animal communities in its application of even-aged management techniques.

Court's Order of Aug. 21, 1995.

Plaintiffs previously challenged the Forest Service's even-aged management practices.2 After the Chief of the Forest Service "shutdown" TCONR's administrative appeal, TCONR and the other Plaintiffs here sought (1) a declaration that the Forest Service's even-aged management practices did not comply with the National Environmental Policy Act ("NEPA"),3 42 U.S.C. § 4321, et seq. and the NFMA, and (2) an injunction against all even-aged management practices. Sierra Club v. Espy, 822 F.Supp. 356, 358 (E.D.Tex. 1993). Unlike the "on-the-ground" challenge now before the court, Plaintiffs argued that the Forest Service's planning documents4 "on-their-face" violated NEPA and the NFMA. Id. at 359. The Honorable Robert M. Parker, then Chief Judge of the Eastern District of Texas, determined that the Forest Service was violating NEPA and the NFMA. Id. at 366-68. Specifically, in its planning documents, the Forest Service failed to consider important information and various cutting options. Id. The court reasoned that Plaintiffs were likely to succeed on their NEPA claims because the Forest Service had "`swept' some significant environmental considerations and criticisms of its scheduled even-aged management actions `under the rug,' or failed to give good faith, meaningful consideration to foreseeable, statutorily important, environmental consequences of its planned even-aged logging activities." Id. at 368. The court also reasoned that Plaintiffs were likely to succeed on their NFMA claims because the Forest Service used even-aged management as the "rule" when, in fact, the NFMA "contemplates that even-aged management techniques will be used only in exceptional circumstances." Id. at 363-64.

The Court of Appeals for the Fifth Circuit reversed the district court's decision. Sierra Club v. Espy, 38 F.3d at 795. The Fifth Circuit disagreed with the district court's interpretation that the NFMA provides that even-aged management is an exception to a rule of uneven-aged management.5 Id. at 799. The Fifth Circuit stated:

That even-aged management must be the optimum or appropriate method to accomplish the objectives and requirements set forth in a [Land Resource Management Plan] does not mean that even-aged management is the exception to a rule that purportedly favors selection management. Similarly, the...

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8 cases
  • Sierra Club v. Martin
    • United States
    • U.S. District Court — Northern District of Georgia
    • January 30, 1998
    ...the regeneration of the timber resource[es]." 16 U.S.C. § 1604(g)(3)(F)(v). Plaintiffs cite the recent decision in Sierra Club v. Glickman, 974 F.Supp. 905 (E.D.Tex.1997). Until this pleading was filed, Plaintiffs' only claim regarding this section of the statute was that the Forest Service......
  • Tompkins v. Cyr
    • United States
    • U.S. District Court — Northern District of Texas
    • January 7, 1998
    ...outweighs any corresponding harm to defendant; and (4) that the injunction will not disserve the public interest. Sierra Club v. Glickman, 974 F.Supp. 905, 943 (E.D.Tex.1997). Plaintiffs must satisfy their burden of proof as to each of these elements. Plains Cotton Co-op. Ass'n of Lubbock, ......
  • Sierra Club v. Glickman
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 16, 1999
    ...Service's failure to act with respect to alleged on-the-ground violations of the NFMA and regulations." See Sierra Club v. Glickman, 974 F. Supp. 905, 914 (E.D. Tex. 1997). The court stated The Forest Service's failure to implement timber sales in compliance with the NFMA and regulations, a......
  • Krichbaum v. U.S. Forest Service
    • United States
    • U.S. District Court — Western District of Virginia
    • August 27, 1998
    ...the agency's less costly evaluation was infirm in light of the statute or the NEPA regulations. Id. See also, Sierra Club v. Glickman, 974 F.Supp. 905, 938 (E.D.Texas 1997) (Forest Service has discretion to use site-specific method, but inventories of selected representative species at inte......
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