Sierra Club v. Lyng, Civ. A. No. L-85-69-CA.
| Decision Date | 17 June 1988 |
| Docket Number | Civ. A. No. L-85-69-CA. |
| Citation | 694 F. Supp. 1260 |
| Parties | SIERRA CLUB, a non-profit corporation; the Wilderness Society, a non-profit corporation; and Texas Committee on Natural Resources, a non-profit trust, Plaintiffs, v. Richard E. LYNG, in his official capacity as Secretary of Agriculture; F. Dale Robertson, in his official capacity as Chief Forester of the United States Forest Service, Department of Agriculture; John E. Alcock, in his official capacity as Regional Forester, Region 8 of the United States Forest Service; William M. Lannan, in his official capacity as United States Forest Supervisor of Texas National Forests, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
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Doug L. Honnold, Boulder, Colo., for plaintiffs Sierra Club & Wilderness Society.
Edward C. Fritz, Dallas, Tex., for plaintiff Texas Committee on Natural Resources.
Ruth Harris Yeager, Asst. U.S. Atty., Tyler, Tex., Charles Brooks, and Wells D. Burgess, U.S. Dept. of Justice, Washington, D.C., for defendants.
Before the Court is the Motion of the Plaintiff Sierra Club and Wilderness Society (hereinafter Sierra Club) for Injunctive Relief to restrain certain timber management activities of the United States Forest Service (hereinafter Forest Service). Plaintiffs allege that these management practices have an adverse impact upon the red-cockaded woodpecker, an endangered species living within the national forests in the State of Texas. The Court held a trial and evidentiary hearing on the Plaintiffs' motion on February 29, 1988 through March 3, 1988. Fed.R.Civ.P. 65(a)(2). The parties submitted post-trial briefs and further oral argument was conducted on these matters on April 15, 1988. In the latest round of argument and briefing, the Plaintiff Texas Committee on Natural Resources (hereinafter TCONR) submitted a "Motion for Summary Judgment as to Longleaf Ridge," however the Court concludes that this matter should be stayed as addressed below.
The Plaintiffs allege a number of different causes of action, as follows: first, the Plaintiffs claim that certain activities of the Defendants constitute a "taking" of the red-cockaded woodpecker (hereinafter RCW or woodpecker) within the meaning of Section 9 of the Endangered Species Act, 16 U.S.C.A. § 1538(a)(1)(B) (West 1985). Additionally, allegations are made that the Defendants have violated Section 7 of the Endangered Species Act (ESA), 16 U.S.C.A. § 1536(a)(2) (West 1985), by "jeopardizing" the woodpecker within the meaning of 50 C.F.R. § 402.02, and by failing to reinitiate consultation with the U.S. Fish and Wildlife Service in light of new information affecting the woodpecker, pursuant to 50 C.F.R. § 402.16(b) (1987).
Second, the Plaintiffs contend that the actions of the Forest Service to control southern pine beetles (hereinafter the SPB Program or Beetle Program) are in violation of the Wilderness Act, 16 U.S.C.A. §§ 1131-1136 (West 1985). Third, the Plaintiffs assert that the administrative denial of a stay to halt implementation of the Land and Resource Management Plan for the Texas national forests (LRMP or Forest Plan), promulgated pursuant to the National Forest Management Act (NFMA), 16 U.S.C.A. § 1604, et seq. (West 1985), was in violation of the Administrative Procedure Act (APA), 5 U.S.C.A. § 706(2)(A) (West 1985).
The Fourth claim of the Plaintiffs relates to an administrative dismissal of a claim to designate part of the Angelina National Forest as a wilderness area, referred to in the pleadings as the "Longleaf Ridge" area. However, on May 9, 1988, the Forest Service issued a directive preventing further timber sales in the Longleaf Ridge area until such time as the Forest Plan administrative appeal is decided. Accordingly, although this claim was originally advanced by the Plaintiffs in pleadings and during the trial, it will not be addressed here since the claim is now STAYED, as requested by the Defendants.
In the fifth and final claim advanced at trial, the Plaintiffs contend that the southern pine beetle Environmental Impact Statement (hereinafter the SPB EIS or Beetle EIS) promulgated in conjunction with the Beetle Program is deficient and otherwise violates the National Environmental Policy Act (NEPA) 42 U.S.C.A. § 4321, et seq. (West 1985). The Plaintiff Sierra Club and the Forest Service agreed on the record, over the objections of TCONR, that this issue is not yet ripe. The Court agrees with the Sierra Club and the Forest Service, therefore the claims surrounding the sufficiency of the Beetle Program and the SPB EIS will not be addressed in this opinion.
After considering the oral arguments presented, the briefs submitted, and evidence adduced at the trial, the Court concludes that the following order is appropriate. The Court hereby finds and holds that the conduct of the Forest Service has detrimentally impacted upon the red-cockaded woodpecker in violation of the Endangered Species Act and the applicable regulations, and thereby constitutes a "taking" of the species within the meaning of Section 9 of the Endangered Species Act. The Court further finds that actions of the Forest Service have jeopardized the woodpecker within the meaning of Section 7 of the Endangered Species Act. Since the Forest Service's management practices are tantamount to a taking of the endangered species, the Court is of the opinion that the remedies described in this order must be instituted to protect the red-cockaded woodpecker from extinction in Texas. The remaining claims of the Plaintiffs under the Wilderness Act and relating to a denial of a stay are without merit for the reasons described below.
The subject matter of this suit, the management of the national forests in Texas,1 has been litigated in this circuit on several previous occasions. The red-cockaded woodpecker was a background character in previous suits, since he was not in the spotlight as he is in the present action. In Texas Committee on Natural Resources v. Bergland, 573 F.2d 201 (5th Cir.1978), cert. denied, 439 U.S. 966, 99 S.Ct. 455, 58 L.Ed.2d 425 (1978), the Fifth Circuit Court of Appeals addressed several issues relating to the Forest Service's practice of clear-cutting, shelterwood cutting, and seed-tree cutting, all of which are also known as even-aged management.2 In Bergland, the Fifth Circuit dissolved an injunction entered by the district court which had held that the EIS relating to the practice of even-aged management was insufficient and in violation of NEPA. Texas Committee on Natural Resources v. Bergland, 573 F.2d at 212. Other causes of action presented were not addressed by the district court at the trial level.
The Fifth Circuit ultimately held that it was improper for the district court to enjoin the Forest Service management practices under NEPA until such time as the agency implemented a "Forest Plan" in accordance with NFMA. NFMA was passed in 1976, and at the time the Bergland court ruled, it was anticipated that a Forest Plan would be in place within sever al years, and would then be subject to judicial scrutiny. In actuality, the final version of the Forest Plan was not issued until the April 6, 1987 Record of Decision (ROD) of the Forest Service, about a decade later.
The instant action was instituted in 1985. Shortly after the suit was filed, this Court entertained a motion by the Plaintiffs for a preliminary injunction. The thrust of the claim asserted again related to violations of NEPA—but this time the challenge was made to the Forest Service's Beetle Program and the accompanying Beetle EIS, rather than the overall forest management plan. Sierra Club v. Block, 614 F.Supp. 134 (E.D.Tex.1985). The Court ruled that it was unwilling to grant the Plaintiffs the full relief requested under their NEPA claim, but did rule that certain practices of the Forest Service warranted court imposed restrictions to prevent harm to the endangered red-cockaded woodpecker until the time of trial. Sierra Club v. Block, 614 F.Supp. at 139-141.
In that order, the Court found that the Forest Service had been violating their own regulations to protect the woodpecker while combatting the southern pine beetles. The Court directed the following: 1) the cutting of hardwood trees unaffected by pine beetles should cease, 2) cutting should take place only where necessary to protect woodpecker colonies or spread of the beetles to private lands, 3) pine trees that are cut should be felled toward infested areas rather than away from them, 4) natural boundaries should be used as buffer zones, 5) discretion could be exercised in cutting, but only if minimally sufficient steps were taken to control the Beetles in the wilderness areas, and 6) the Forest Service should follow its own guidelines, as well as provide the Plaintiffs with information about each cut. Sierra Club v. Block, 614 F.Supp. at 140-141.
On October 22, 1987, the Plaintiff Texas Committee on Natural Resources moved for a Temporary Restraining Order. TCONR contended that all even-aged management practices should be halted because they violated the Wilderness Act and the Endangered Species Act, in addition to NEPA. This Court held a hearing on the motion for a Temporary Restraining Order and a Preliminary Injunction, holding in the Order of October 26, 1987, that the broad based relief sought by the Plaintiffs to suspend all even-aged management in all of the national forests of Texas, was unwarranted. The Court denied the motion, refused to lift the six (6) restrictions imposed in 1985, and further ordered that cutting within one hundred (100) yards of the red-cockaded woodpecker colonies be prohibited until a full evidentiary hearing and trial could be held. Sierra Club v. Block, 694 F.Supp. 1255 (E.D.Tex.1987) (order denying TRO); Sierra Club v. Block, 694 F.Supp. 1256 (E.D.Tex.1987).
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