Sierra Club v. Glickman

• Decision Date: 20 October 1995
• Docket Number: No. 94-40506,94-40506
• Citation: 67 F.3d 90
• Parties: , 26 Envtl. L. Rep. 20,160 SIERRA CLUB, et al., Plaintiffs-Appellees, v. Dan GLICKMAN, in his official capacity as Secretary of Agriculture, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 90

67 F.3d 90

41 ERC 2048, 26 Envtl. L. Rep. 20,160

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

Agriculture, et al., Defendants-Appellants.

No. 94-40506.

United States Court of Appeals,

Fifth Circuit.

Oct. 20, 1995.

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

Steven P. Quarles, Thomas R. Lundquist, Washington, DC, James R. Cornelius, Zeleskey, Cornelius, Hallmark, Roper, & Hicks L.L.P., Lufkin, TX, Joseph Michael Klise Crowell & Moring, Washington, DC, for intervenor Texas Forrestry.

Douglas Loie Honnold, Sierra Club Legal Defense Fund, Bozeman, MT, for Sierra.

Edward C. Fritz, Dallas, TX, for Texas Committee on Natural Resources.

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

Before WISDOM, DUHE, and BARKSDALE, Circuit Judges.

DUHE, Circuit Judge:

The United States Forest Service (hereinafter "Forest Service") appeals the district court's Superseding Order of March 21, 1994. ¹ Therein, the district court concluded that the Forest Service's Interim Standards and Guidelines for the Protection and Management of Red-Cockaded Woodpecker Habitat Within 3/4 Mile of Colony Sites (hereinafter "Interim Guidelines") violated the Endangered Species Act and therefore denied the Forest Service's Motion to Approve Plan. Intervenors, Texas Forestry Association and Southern Timber Purchasers Council, submitted additional briefing on behalf of the Forest Service. We vacate the district court's order denying the Forest Service's motion and remand for reconsideration of the Interim Guidelines under the arbitrary and capricious standard of review.

I. History ²

The Forest Service, an agency of the Department of Agriculture, is charged with the management of the national forests in East Texas. ³ The Sierra Club, The Wilderness Society, and the Texas Committee on Natural Resources ("TCONR") (hereinafter "Plaintiffs") first challenged the Forest Service's discharge of this responsibility on April 17, 1985, when Plaintiffs sued to contest the Forest Service's policy of cutting trees in the Texas wilderness to control pine beetle infestation. The nature of the litigation changed dramatically, however, in late 1987 when Forest Service scientists documented a drastic decline in the number of active red-cockaded woodpecker ("RCW") colonies in these national forests. The RCW is a listed endangered species. See 50 C.F.R. Sec. 17.11 (1994).

TCONR amended its complaint on October 22, 1987, to allege, inter alia, that the Forest Service's timber management policies harmed the RCW in violation of Secs. 7 and 9 of the Endangered Species Act ("ESA"). 16 U.S.C.A. Secs. 1536(a)(2) and 1538(a)(1)(B). ⁴ TCONR sought a temporary restraining order halting all even-aged timber harvesting in the Texas national forests, but this request was denied. Sierra Club v. Block, 694 F.Supp. 1255 (E.D.Tex.1987). On January 19, 1988, the Sierra Club and The Wilderness Society filed an amended complaint raising claims similar to those raised by TCONR in its amended complaint and seeking permanent injunctive relief.

The district court conducted a four-day trial concerning the plea for a permanent injunction and, in a memorandum opinion and order of June 17, 1988, held the Forest Service's current management techniques were in violation of Secs. 7 and 9 of the ESA. Sierra Club v. Lyng, 694 F.Supp. 1260 (E.D.Tex.1988). Concluding that the Forest Service was "harming" and thus "taking" a protected species in violation of the ESA, the district court ordered the Forest Service to promulgate within sixty days a comprehensive plan to maximize the probability of survival of the RCW in the Texas national forests. Further, the district court enjoined all even-aged lumbering in these forests within 1,200 meters of identified active and inactive RCW colony sites and imposed several restrictions upon any future proposed timber management plan.

In August 1988, the Forest Service submitted a comprehensive timber management plan that the district court found did not fully comply with the dictates of its June 17, 1988 order. By an order entered October 21, 1988, the district court rejected significant portions of this plan and gave the Forest Service another sixty days to submit a second comprehensive plan.

The Forest Service appealed the June 17 and October 21, 1988 orders challenging the standard of review employed by the district court in considering the Plaintiffs' ESA claims. We found merit in the Forest Service's contention that claims of violation of the ESA by agencies of the federal government are generally reviewed under the arbitrary and capricious standard of the Administrative Procedure Act ("APA"). Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991). As to the contested orders, we affirmed "to the extent that they prohibit or condition action by [the Forest Service] pending their formulation ... of a proper timber management plan," but vacated in "so far as [they] mandate in advance the specific features such a plan must contain." Id. at 440. Finally, we remanded the matter for the district court "to review the [Forest Service's] current plan, applying the arbitrary and capricious standard, for compliance with the ESA in reference to the RCW and its habitat." Id.

While the matter was awaiting reconsideration on remand, the Forest Service, on June 17, 1992, filed a Motion to Approve Plan, wherein the Forest Service requested that the district court approve the Interim Guidelines as applied to the Texas national forests. Additionally, the Forest Service requested that the district court lift the existing injunction upon approval of the Interim Guidelines. The district court, despite our mandate in Yeutter, reviewed the Interim Guidelines for compliance with the ESA under a de novo standard and held they violated Sec. 9. Accordingly, the district court denied the Forest Service's motion, and the injunction remains in effect. The Forest Service timely appealed. On appeal, two issues confront us: (1) whether the order of the district court was an interlocutory order continuing or refusing to dissolve an injunction such that we have appellate jurisdiction of this case under 28 U.S.C.A. Sec. 1292(a)(1); and (2) whether federal agency action alleged to violate the ESA is subject to judicial review under the APA's arbitrary and capricious standard.

II. Appellate Jurisdiction

The Forest Service alleges jurisdiction for this appeal pursuant to 28 U.S.C.A. Sec. 1292(a)(1). Section 1292 states, in relevant part:

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States ..., or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions ....

(Emphasis added.). Plaintiffs, however, contest our appellate jurisdiction and argue the district court neither refused to dissolve nor continued the existing injunction. More particularly, Plaintiffs contend the Forest Service did not request in its motion that the injunction be lifted.

Because Sec. 1292 is intended to carve out limited exceptions to the general rule that only final judgments of federal district courts are reviewable on appeal, the statute is construed narrowly. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Thus, only when the interlocutory order of the district court specifically and explicitly grants or denies an injunction is such order immediately appealable under Sec. 1292(a)(1). Justin Indus., Inc. v. Choctaw Securities, L.P., 920 F.2d 262, 265 & n. 2 (5th Cir.1990); Atwood Turnkey Drilling, Inc. v. International Underwater Contractors, 875 F.2d 1174, 1176 (5th Cir.1989), cert. denied sub nom. Petroleo Brasileiro, S.A. v. Atwood Turnkey Drilling, Inc., 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990). If the district court's order is not explicit, but merely has the practical effect of granting or denying injunctive relief, Sec. 1292(a)(1) permits an appeal provided the litigant can further establish "that [the] interlocutory order of the district court might have a 'serious, perhaps irreparable, consequence,' and that the order can be 'effectually challenged' only by immediate appeal." Carson, 450 U.S. at 84, 101 S.Ct. at 996 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)). See also EEOC v. Kerrville Bus Co., 925 F.2d 129, 132 (5th Cir.1991). Thus, the question is whether the district court's order explicitly continued or refused to dissolve the existing injunction. An affirmative answer halts our inquiry and establishes our jurisdiction.

Despite Plaintiffs' contention that the Forest Service did not request the injunction be lifted in its Motion to Approve Plan, the record on appeal reveals that the fate of the injunction was unquestionably before the district court. In considering the Forest Service's motion, the district court noted:

Before the Court are: ... Preliminary Opposition of Sierra Club and the Wilderness Society to the Forest Service's Motion to Approve its Woodpecker Management Plan [Preliminary Opposition]; ... Plaintiff, TCONR's Opposition to Defendants' Proposed Plan and to Defendants' Reply Memo [TCONR's Opposition]; ... and Defendants' Written Rebuttal.

1 R. at 88-89. The Preliminary Opposition joined in by all Plaintiffs states: "The Forest Service has now proposed to lift this Court's injunction that has governed management practices in Red-Cockaded Woodpecker habitat on the Texas National Forests for four years." 4 R. at 860. Further, TCONR's Opposition states: "TCONR request[s] [sic] that the Court ... (3) continue in the interim, the injunction against even-aged logging in...