Texas Committee on Natural Resources v. Bergland

Decision Date08 May 1978
Docket NumberNo. 77-2671,77-2671
Citation573 F.2d 201
Parties, 8 Envtl. L. Rep. 20,445 TEXAS COMMITTEE ON NATURAL RESOURCES, Plaintiff-Appellee, v. Robert BERGLAND, Secretary of Agriculture of the United States, et al., Defendants-Appellants, Texas Forestry Association et al., Intervenors-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Roby Hadden, U. S. Atty., C. Houston Abel, Asst. U. S. Atty., Tyler, Tex., Robert Klarquist, James Moorman, AAG, Edmond Clark, Chief, Land & Nat. Resources Div., Dept. of Justice, Washington, D. C., Elbert A. Cole, Dept. of Agriculture, Temple, Tex., for defendants-appellants.

James R. Cornelius, Jr., Lufkin, Tex., Richard Brooks, James Ulmer, Lawrence McNamara, Michael Skelton, Houston, Tex., Kenzy Hallmark, Lufkin, Tex., for Texas Forestry Ass'n.

Bill Kugle, Athens, Tex., Helene Linker, John Robert Beers, James B. Frankel, Palo Alto, Cal., for plaintiff-appellee.

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

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

THORNBERRY, Circuit Judge:

The United States owns approximately 662,000 acres of national forest land in East Texas. This East Texas forest land is divided into four distinct and spatially separate forests San Houston National Forest, Angelina National Forest, Sabine National Forest and Davy Crockett National Forest. The land available for timber management purposes within these national forests is administered by the United States Forest Service. Plaintiff in this action, Texas Committee on Natural Resources, 1 sued defendant Bergland, the Secretary of Agriculture, and others 2 in charge of national forests located in Texas 3 alleging that the Forest Service's failure to file an environmental impact statement with respect to even-aged timber management was in violation of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. A number of lumber companies 4 and the Texas Forestry Association were permitted to intervene in the district court. The district court held that the Forest Service had unreasonably concluded that the use of any even-aged management system in Texas national forests did not require an environmental impact statement and that the Forest Service should be enjoined from permitting any cuts designed to regenerate even-aged stands of timber until it had prepared a programmatic environmental impact statement, approved by the court and filed with the Council on Environmental Quality. Texas Committee on Natural Resources v. Bergland, 433 F.Supp. 1235 (E.D.Tex.1977). The district court also found that an environmental impact statement filed on the Conroe Unit of the Sam Houston National Forest was insufficient. We hold that the district court erred in its judgment that a programmatic environmental impact statement was required, in finding the Conroe impact statement insufficient and in its grant of injunctive relief. We also find that the provisions of the NEPA and the NFMA are not irreconcilable and that the Forest Service is subject to NEPA requirements under certain circumstances.

I. Background

This is a controversy over the proper way to use and manage the timber resources within the national forests in Texas. The plaintiffs assert that the Forest Service should consider the use of a system for managing trees called uneven-aged management. In that system timber is allowed to grow in stands containing trees of different ages. Because the trees mature at varying times, selective cutting is used to harvest them. In selective cutting trees must be individually chosen and marked before they may be cut. In contrast, even-aged management, now used by the Forest Service, permits only trees of uniform age to grow within a stand. Intermediate thinnings weed out trees of less maturity prior to a final harvest, which is generally made by seed tree cutting, shelterwood cutting or clearcutting. 5 When clearcutting is used, all timber in the area is removed in one cut and the area is prepared for either natural regeneration, artificial seeding or planting of nursery-grown trees. The net result of this method is that all of the trees in an area are leveled within inches of the ground.

The sale of timber in national forests was originally controlled by the Organic Act of 1897, 16 U.S.C. § 476. That act provided for the sale of "dead, matured, or large growth of trees." In 1960 Congress passed the Multiple-Use Sustained-Yield Act, 16 U.S.C. §§ 528-31. The Multiple-Use Sustained-Yield Act stated a congressional policy that national forests were established and were to be administered for outdoor recreation, range, timber, watershed, wildlife and fish purposes. It also provided that the Secretary of Agriculture was to develop and administer the renewable resources of the national forests for multiple use and sustained yields. The definition of "multiple use" as it pertains to timber manifested a congressional intent to balance the use of national forests between the one pole of timber production and the other of aesthetic and recreational use. 6 Congress passed the Multiple-Use Sustained-Yield Act without repealing the Organic Act of 1897.

Around 1964 the Forest Service began to implement the use of clearcutting in national forests. Conservation-oriented plaintiffs then sued, claiming that the Organic Act, 16 U.S.C. § 476, permitted harvesting of only a limited number of trees, specifically those that were dead, matured or of large growth. West Virginia Division of Izaak Walton League of America, Inc. v. Butz, 522 F.2d 945 (4 Cir. 1975). The Fourth Circuit upheld that argument and ruled that all contracts for the sale of timber which did not provide for selective, marked cutting of dead, matured, or large growth trees violated the Organic Act.

Congress responded to the Monongahela decision (as the Fourth Circuit case came to be called) with significant legislation. It repealed Section 476, the Organic Act, and passed the National Forest Management Act, 16 U.S.C. § 1600 et seq.

The East Texas litigation had, however, commenced before the passage of the National Forest Management Act. In 1976 plaintiffs filed a complaint asking for declaratory and injunctive relief and alleging that the defendants, by permitting clearcutting in East Texas national forests, were in violation of the Organic Act of 1897, the National Environmental Policy Act, 42 U.S.C. § 4332, the Multiple-Use Sustained-Yield Act, 16 U.S.C. §§ 528 et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq., and the Wilderness Act, 16 U.S.C. § 1131. At the preliminary injunction stage the district court held that proposed timber sales in the East Texas forests violated the Organic Act of 1897 and that clearcutting violated the Multiple-Use Sustained-Yield Act. It also held that the Forest Service had violated the National Environmental Policy Act by failing to file an environmental impact statement concerning even-aged timber management practices in the Texas national forests. Just prior to the trial on the merits the National Forest Management Act was signed by the President. After the trial, the district court declined to rule that clearcutting was a violation of the National Forest Management Act, the Multiple-Use Sustained-Yield Act, the Endangered Species Act or the Wilderness Act. It did hold that failure to file an environmental impact statement for the Texas forests violated the National Environmental Policy Act.

The defendant Secretary has appealed that decision arguing that the district court's decision was an incorrect substitution of judicial opinion for that of the agency and Congress, that the district court erroneously required a programmatic environmental impact statement covering all East Texas forest land, that the NFMA affects the Secretary's responsibility under NEPA and that the injunction should not have been granted. The plaintiff appellees counter that the East Texas clearcutting program is a major federal action which requires the filing of an environmental impact statement, that there is no statutory exception which sanctions the failure to file an environmental impact statement and that the injunctive relief was a proper remedy for their complaint. They also argue that the NFMA neither exempted the Forest Service from the preparation of an environmental impact statement nor gave blanket permission for clearcutting.

II. NEPA Compliance

An environmental impact statement is required for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c); Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421 (5 Cir. 1973); Simmans v. Grant, 370 F.Supp. 5 (S.D.Tex.1974). This circuit has determined that an agency's initial determination whether to file a statement is to be tested under a rule of reasonableness. Save Our Ten Acres v. Kreger, 472 F.2d 463, 465-66 (5 Cir. 1973). That rule of reasonableness does not apply, however, when there is a fundamental conflict of statutory purpose between NEPA and an agency's organic statute. Louisiana Power & Light Co. v. Federal Power Commission, 557 F.2d 1122 (5 Cir. 1977); Atlanta Gas Light Co. v. Federal Power Commission, 476 F.2d 142, 150 (5 Cir. 1973).

Appellants first argue that the National Forest Management Act, as construed by the district court, directly conflicts with the NEPA and that in such a situation the latter must yield. The statutory conflict exception has been applied sparingly. See generally, Note, The Environmental Impact Statement Requirement in Agency Enforcement Adjudication, 91 Harv.L.Rev. 815, 825 (1978). The conflict between the agency's organic statute and NEPA must be both fundamental and irreconcilable. Flint Ridge Development Co. v. Scenic Rivers Association, 426 U.S. 776, 96 S.Ct. 2430, 49 L.Ed.2d 205, reh. den. 429 U.S. 875, 97 S.Ct. 198, 50 L.Ed.2d 159 (1976). In a limited number of cases...

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