Sierra Club v. Lyng, Civ. A. No. L-85-69-CA.
| Decision Date | 19 January 1988 |
| Docket Number | Civ. A. No. L-85-69-CA. |
| Citation | 694 F. Supp. 1256 |
| Parties | SIERRA CLUB, The Wilderness Society, and the Texas Committee on Natural Resources, Plaintiffs, v. Richard E. LYNG, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
Doug L. Honnold, Boulder, Colo., for plaintiffs Sierra Club and Wilderness Soc.
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 are the Defendants' Motion to Dismiss the Texas Committee on Natural Resources' ("TCONR") Second Amended Complaint; the First, Second, and Third Motions of TCONR for Production; the Defendants' Motion for a Protective Order; and the Sierra Club and Wilderness Society's Motion for Leave to File a First Amended Complaint. Upon direction of the court, the Honorable Harry W. McKee, United States Magistrate, conducted a hearing on these motions on January 15, 1988.
The court, after examining the filings, reviewing the arguments contained therein, and considering the oral arguments of counsel presented at the hearing, has determined that the Defendant's Motion to Dismiss TCONR's Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Dismissal of claims asserted relating to a "taking" of the Red-Cockaded Woodpeckers are hereby TAKEN UNDER ADVISEMENT. Furthermore, TCONR's First, Second, and Third Motions for Production are GRANTED and the Defendant's Motion for a Protective Order is DENIED. Finally, the Sierra Club and Wilderness Society's Motion for Leave to File a First Amended Complaint is also GRANTED IN PART and DENIED IN PART.
The Plaintiffs Sierra Club and The Wilderness Society (hereinafter "Sierra Club"), and TCONR bring this action against Richard E. Lyng, Secretary of Agriculture, and a number of other officials of the United States Forest Service (hereinafter "Forest Service" or "Government"), seeking declaratory and injunctive relief to set aside various plans and/or programs of management of the National Forests in Texas, arguing that such plans are in violation of the Wilderness Act, 16 U.S.C. Sections 1131-1136; the Endangered Species Act, 16 U.S.C. Sections 1531-1543; the National Environmental Policy Act (NEPA), 42 U.S.C. Sections 4321-4361; and the National Forest Management Act (NFMA), 16 U.S.C. Sections 472a, et seq.
The Plaintiffs, local and national environmental groups, argue that certain management practices of the Forest Service, particularly those activities to control spread of the Southern Pine Beetles and "even-aged" management generally, are contrary to law and have a deleterious effect upon the National Forests in Texas. The primary issue before the court today is whether claims contained in TCONR's Second Amended Complaint (relating to the Final Land and Resource Management Plan) are subject to judicial review while administrative action is pending.
Four administrative decisions are being challenged in this action at its current stage. For purposes of clarity, the court will necessarily analyze each challenged action in turn.
The Government seeks dismissal of TCONR's Second Amended Complaint, arguing that with respect to TCONR's challenge of the "Final Land and Resource Management Plan, National Forests and Grasslands—Texas" (hereinafter "LRMP" or "Forest Plan") and its accompanying Final Environmental Impact Statement ("LRMP EIS" or Forest Plan EIS), administrative remedies have not yet been exhausted. The Government asserts that court action relating to the Forest Plan and Forest Plan EIS is premature at this time. The court agrees with this conclusion.
The Forest Plan and the Forest Plan EIS were promulgated pursuant to NFMP, 16 U.S.C. Section 1600, et seq., by the Regional Forester in a Record of Decision on May 20, 1987. TCONR and a local chapter of the Sierra Club timely filed an administrative appeal under 36 C.F.R. 219.10(d) challenging the Forest Plan. Both of those appeals, including appeals by others who are not parties to this action, are currently pending before the Forest Service. The substance of TCONR's appeal addresses similar, if not identical, arguments that are contained in its Second Amended Complaint relating to the effects of "even-aged" timber management and clearcutting on the environment of the National Forests. Beasley Affidavit, p. 6.
Specifically, TCONR argues that the Forest Service's plan of even-aged management (clearcutting, shelterwood cutting, and seed-tree cutting) has an adverse impact upon the plant and animal diversity, soil retention, recreational use, aesthetics, and other uses of the National Forests, in violation of the NFMA, 16 U.S.C. Section 1604(g)(3)(B), and the pertinent regulations, 36 C.F.R. Sections 219.19 and 219.26. Moreover, TCONR maintains that clearcutting and even-aged management has caused, and continues to cause, a decline in the number of Red-Cockaded Woodpeckers, an endangered species located in many of the forests in question. TCONR maintains that 100% even-aged management and clearcutting of 60% of the land suitable for timber management, as opposed to uneven-aged cutting is not the "optimum method" of management mandated by the Congress under NFMA, 16 U.S.C. Section 1604(g)(3)(F)(i).
It is uncontested that TCONR's appeal of the LRMP and LRMP EIS remains pending before the agency. However, the Plaintiffs argue that this court should not apply the doctrine of exhaustion of administrative remedies, because of irreparable harm which will occur between now and the time the appeal is decided. The Plaintiffs also assert that the Forest Service may delay resolution of the appeal to prolong the current cutting practices, thereby permitting the court to intercede.
At the hearing Mr. Wells D. Burgess, counsel for the Government, 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). The government and officials of the Forest Service present at the hearing represented to the court that approximately 5,000 acres out of the approximately 460,000 acres of the Texas National Forests would be subject to even-aged management between now and the time the appeal will be decided (April 15, 1989), which would affect approximately 100 to 120 of the 400 "compartments" (administrative units) contained therein.
After examining these figures, the court concludes that the anticipated delay is not so unreasonable as to warrant the court's intervention at this point in the administrative proceedings. Excessive administrative delay can be an exception to the exhaustion requirement, however eight to fifteen months more, does not appear to be excessive in this instance. While the Sierra Club argues that appeals and remands sometimes take years to complete, at this point in time, the court does not consider eight to fifteen months to be excessive.
The Plaintiffs also argue that the forests and the endangered Red-Cockaded Woodpeckers will be irreparably harmed in the interim. The Government's reports do show that the population of the Red-Cockaded Woodpecker has declined significantly in recent years, dropping in population by 41% from 1983 to 1987 in the Davey Crockett National Forest, and by 76% in the Sabine National Forest from 1978 to 1987. Conner & Rudolph, Red-Cockaded Woodpecker Colony Status and Trends, U.S.D. A.—Forest Service, at 6. Although it may eventually be shown that clearcutting and even-aged management affects the woodpecker colonies adversely, it is not absolutely clear, at this point in the proceedings, that such is the case....
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... ... 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 ... ...
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