Sierra Club v. Peterson

• Decision Date: 20 September 2000
• Docket Number: No. 97-41274,97-41274
• Citation: 228 F.3d 559
• Parties: (5th Cir. 2000) SIERRA CLUB; WILDERNESS SOCIETY; TEXAS COMMITTEE ON NATURAL RESOURCES, Plaintiffs - Appellees, v. R. MAX PETERSON; ET AL, Defendants, DANIEL GLICKMAN, In his official capacity as the Secretary of the Department of Agriculture; ELIZABETH ESTILL, In her official capacity as the Regional Forester, US Forest Service, Region 8; MICHAEL DOMBECK, In his official capacity as Chief, US Forest Service; RONALD RAUM, In his official capacity as the Forest Supervisor, National Forests and Grasslands in Texas, Defendants - Appellants, TEXAS FORESTRY ASSOCIATION; SOUTHERN TIMBER PURCHASERS COUNCIL, Intervenor - Defendants - Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 559

228 F.3d 559 (5th Cir. 2000)

SIERRA CLUB; WILDERNESS SOCIETY; TEXAS COMMITTEE ON NATURAL RESOURCES, Plaintiffs - Appellees, v. R. MAX PETERSON; ET AL, Defendants DANIEL GLICKMAN, In his official capacity as the Secretary of the Department of Agriculture; ELIZABETH ESTILL, In her official capacity as the Regional Forester, US Forest Service, Region 8; MICHAEL DOMBECK, In his official capacity as Chief, US Forest Service; RONALD RAUM, In his official capacity as the Forest Supervisor, National Forests and Grasslands in Texas, Defendants - Appellants TEXAS FORESTRY ASSOCIATION; SOUTHERN TIMBER PURCHASERS COUNCIL, Intervenor - Defendants - Appellants.

No. 97-41274

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

September 20, 2000

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Eastern District of Texas

Before POLITZ, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, and DENNIS, Circuit Judges.^*

EMILIO M. GARZA, Circuit Judge:

The single issue before us is whether the plaintiffs in this case--the Sierra Club, the Texas Committee on Natural Resources ("TCONR"), and the Wilderness Society (collectively, the "environmental groups")--limited their challenge to identifiable final agency actions of the United States Forest Service. See 5 U.S.C. § 704. Because we conclude that they did not, and that the district court therefore exceeded its jurisdiction in hearing their challenge, we vacate and remand.

I

A

The Forest Service's regulation of the National Forest system is governed by the National Forest Management Act of 1976 ("NFMA").¹ See 16 U.S.C. § 1600, et seq.² Among other things, the NFMA requires the Forest Service to prepare a land and resource management plan ("LRMP") for each unit of the National Forest System. See 16 U.S.C. § 1604(a). LRMPs govern use of the individual forests, and they must fulfill the Forest Service's mandate to "provide for multiple use and sustained yield . . . includ[ing] coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." Id. § 1604(e)(1);³ see also Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 729, 118 S. Ct. 1665, 140 L. Ed. 2d 921 (1998) (citing 16 U.S.C. § 1604(g) and 36 C.F.R. § 219.1(a) and stating that LRMPs must further both commercial and environmental goals); Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir. 1994) ("[A]n LRMP is, in essence, a programmatic statement of intent that establishes basic guidelines and sets forth the planning elements that will be employed by the Forest Service in future site-specific decisions.").

Preparation of an LRMP is the first step in timber harvesting. The second step occurs when the Forest Service authorizes harvesting in a specific location by selecting a timber sale area, preparing an environmental assessment ("EA"), allowing public comment, and awarding a timber harvesting contract to the highest bidder. See 36 C.F.R. 223.1, et seq. The Forest Service can do this "only after analyzing timber management alternatives and the sale's particular environmental consequences," Sierra Club v. Espy, 38 F.3d 792, 795 (5th Cir. 1994), and after determining that the decision to sell in a given area is consistent with the LRMP, 16 U.S.C. § 1604(i); 36 C.F.R. §§ 219.10(e), 223.30.

B

The focus of this case has changed several times since the environmental groups initiated it in 1985. The single constant has been their disagreement with the Forest Service's administration of the Texas National Forests.⁴

The current incarnation of this litigation involves the environmental groups' objections to "even-aged timber management" in the Texas forests. Even-aged management encompasses timber harvesting techniques which involve cutting all or almost all of the trees in the same stand at the same time.⁵ This results "in the creation of stands in which trees of essentially the same age grow together." 36 C.F.R. § 219.3. The NFMA allows even-aged management if the Forest Service determines that such techniques are "appropriate" (or, in the case of clearcutting, that it is the "optimum method") for complying with the non-commercial goals of the LRMP. 16 U.S.C. § 1604(g)(3)(F)(i); see also Espy, 38 F.3d at 800 (noting that "[t]he regulations implementing NFMA provide a minimum level of protection" of non-timber-harvesting interests).

In 1987, the Forest Service developed an LRMP and an accompanying EIS for the Texas forests which used even-aged management as the primary means of timber harvesting. After the environmental groups administratively challenged this LRMP, the Chief of the Forest Service remanded it for revision in 1989. In the interim, the Chief adopted a temporary scheme for managing the Texas forests, allowing the Forest Service to make decisions regarding the choice of timber management techniques at the site-specific level, and allowing even-aged management at specific sites if such management generally complied with the 1987 Plan.

This portion of the litigation has involved the environmental groups' attempts since then to halt the use of even-aged management in the Texas forests. The broad scope of their challenge has remained constant: while they have identified specific Forest Service acts which they allege violate the NFMA, they have consistently challenged the Forest Service's entire program of allowing timber harvesting in the Texas forests.

The environmental groups filed their Fourth Amended Complaint in 1992. This complaint raised "four major claims," 4th Am. Compl. at 1, including the even-aged management claim at issue here. The environmental groups cited twelve allegedly ripe and allegedly improper timber sales in support of this claim, but they made clear that these sales were examples of the larger even-aged management techniques they were challenging rather than the extent of their challenge.⁶ Accordingly, the complaint requested broad injunctive relief blocking further timber sales or even-aged management in the "national forests in Texas." Id. at 34-35.

In 1993, the district court granted a preliminary injunction against "further even-aged logging." Sierra Club v. Espy, 822 F. Supp. 356, 370 (E.D. Tex. 1993). We reversed. See Espy, 38 F.3d at 803. As an initial matter, recognizing the overbreadth of the injunction, we limited it to the "nine pending timber sales" which the court properly had before it. See id. at 798 ("The district court's order appears to enjoin the Forest Service's entire even-aged management agenda; however it is clear that the court had before it only the nine pending timber sales. TCONR concedes that the injunction, properly read, applies only to the nine sales"). We then vacated and remanded, holding that the injunction was based on the district court's mistaken view that, under the NFMA, even-aged management techniques "could only be used in exceptional circumstances." Id. at 798-803.

On remand, the environmental groups asked the district court for a trial on their even-aged management claim. Their trial request focused on their argument that the Forest Service's "on-the-ground" use of even-aged management violated the NFMA. The request was as broad in scope as the Fourth Amended Complaint. See Trial Req. at 3 ("Since virtually every even-age logging operation in the national forests in Texas involved failure to protect . . . resources . . ., such operations run into the thousands, generally with similar harmful results."). It identified "instances [ranging from the 1970s to 1995] of places and times where Defendants have failed and are failing to carry out protection of diversity and the congressionally designated resources," id. at 3-4; see also id. Appendix I at 5, 14 (same), and it asked the court to conduct a trial "before Defendants advertise any even-age sales," id. at 18.⁷

The environmental groups next filed a "Supplemental Complaint," which re-enumerated their charges that the Forest Service was violating the NFMA. Although the Supplemental Complaint identified "18 [scheduled] even-age cutting decisions," it again generally challenged the Forest Service's allowance of even-aged management, noting that several of the violations had been ongoing "[e]ver since the [1976] enactment of NFMA." Supplemental Compl. at 1, 4, 6. It again contained a request for a broad injunction against even-aged management practices.

The district court granted the environmental groups' trial request and held a seven-day bench trial on three issues:

(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.

Sierra Club, 974 F. Supp. at 912. To establish its jurisdiction, the court concluded that the environmental groups had challenged a "final agency action," a prerequisite to suit against an administrative agency under the Administrative Procedure Act ("APA"). The court identified the final agency action as the Forest Service's general allowance of even-aged management in the Texas forests rather than any specific timber sales the Forest Service decided to allow in the forests:

The Forest Service's failure to implement timber sales in compliance with the NFMA and regulations, as alleged by Plaintiffs, is a final agency action for purposes of section 704. Once the Forest Service adopted a final, definite course of action or inaction with respect to the management of the forest lands (regardless of whether that action or inaction is memorialized in a written agency...