United States Court of Appeals,
Fifth Circuit.
No. 94-40506.
SIERRA CLUB, et al., Plaintiffs-Appellees,
v.
Dan GLICKMAN, in his official capacity as Secretary of Agriculture, et al., Defendants-Appellants.
Oct. 20, 1995.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, 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
1 The Superseding Order of March 21, 1994 superseded the district court's Order of March 15, 1994. The changes to the March 15, 1994 Order reflected in the Superseding Order are merely technical, not substantive.
1 capricious standard of review.
I. History2
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 Department of 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. §
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 §§ 7 and 9 of the Endangered Species
Act ("ESA"). 16 U.S.C.A. §§ 1536(a)(2) and 1538(a)(1)(B).4 TCONR
2 The majority of this discussion is a cutting and pasting of the relevant information from our opinion in Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991), wherein we first visited this case. 3 The pertinent national forests are the Sam Houston National Forest, the Angelina National Forest, the Davy Crockett National Forest, and the Sabine National Forest. 4 Section 7 of the ESA, 16 U.S.C.A. § 1536(a)(2), provides:
Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the
2 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 §§ 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
Interior], insure that any agency action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical....
The relevant portion of § 9 of the ESA, 16 U.S.C.A. § 1538, provides:
(a) Generally
(1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to—
(B) take any such species within the United States or the territorial sea of the United States....
3 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
4 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 § 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. § 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. § 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:
5 (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 § 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 §
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, § 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
6 996 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176,
181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1951)). 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 Red-cockaded
woodpecker habitat, except as to the requirement to maintain 40
square feet per acre of the oldest trees...." 3 R. at 653.
Finally, Defendants' Written Rebuttal provides: "In sum, under the
correct standard of review—the deferential arbitrary and capricious
standard—the Interim Standards and Guidelines should be approved by
7 this Court and the injunctions lifted." 2 R. at 122. Thus, all
parties recognized that the corollary of the district court's
ruling on the Forest Service's motion would be the continuance or
dissolution of the injunction.
Additionally, in rendering its order, the district court
stated:
In short: the defendants ... have proposed that the Court lift its injunction that has governed management practices in Red-Cockaded Woodpecker habitat in the Texas national forests for four years. However, the currently-proffered Plan is but a proposal to return to the very same timber management practices this Court has reviewed and rejected on three separate occasions.
1 R. at 89-90. Notwithstanding that following this introductory
remark the order focuses on the legal sufficiency of the Interim
Guidelines under § 9 of the ESA and never again mentions the
injunction or the effect of the refusal to accept the Interim
Guidelines on the injunction, this language evidences the district
court's understanding that the necessary result of its denial of
the Forest Service's motion was to continue or to refuse to
dissolve the existing injunction.
For the foregoing reasons, we conclude that the district
court's March 21, 1994 Superseding Order explicitly continued or
refused to dissolve the existing injunction against even-aged
timber harvesting in the Texas national forests by the Forest
Service. Accordingly, we have jurisdiction to maintain the Forest
Service's appeal of the order under § 1292(a)(1).
III. Standard of Review
Having resolved the jurisdiction question, we now focus our
8 attention on the critical issue in this dispute: What is the
appropriate standard by which the district court is to review the
Forest Service's proposed timber management plans for compliance
with §§ 7 and 9 of the Endangered Species Act ("ESA")? In Yeutter,
we issued a plain, concise mandate to the district court: "The
cause is remanded to the district court to review the USFS's
current plan, applying the arbitrary and capricious standard, for
compliance with the ESA in reference to the RCW and its habitat."
926 F.2d at 440 (emphasis added). Our opinion drew no distinction
between review of claims under § 7 as opposed to § 9. Nonetheless,
the order issued by the district court on remand did, in fact, make
such a distinction. And in this court Plaintiffs argue that such
a distinction is warranted. To reiterate our holding in Yeutter,
the appropriate standard of review of federal administrative agency
action under both § 7 and § 9 of the ESA is the arbitrary and
capricious standard prescribed by the Administrative Procedure Act
("APA"), 5 U.S.C.A. § 706(2)(A).5
A. Section 7
Because it denied the Forest Service's motion based on a
finding that the Interim Guidelines violated § 9, the district
5 Our holding in this respect comports with the views of other jurisdictions confronted with this issue. See National Audubon Society v. Hester, 801 F.2d 405 (D.C.Cir.1986); Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678 (D.C.Cir.1982); Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir.1976); Resources Ltd. v. Robertson, 35 F.3d 1300 (9th Cir.1993), as amended on denial of rehearing (1994); Pyramid Lake Paiute Tribe of Indians v. U.S. Dept. of Navy, 898 F.2d 1410 (9th Cir.1990); Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir.1985); Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984 (11th Cir.1987).
9 court did not review the Interim Guidelines with respect to § 7.
Nonetheless, the district court acknowledged that "judicial review
allowed under § 7 ... is to take place under the Administrative
Procedure Act's "arbitrary and capricious' standard." 1 R. at 93.
In this respect the district court complied with our earlier
dictate. See Yeutter, 926 F.2d at 439. Thus, in reviewing the
Forest Service's Interim Guidelines for compliance with § 7, the
district court must employ the APA's arbitrary and capricious
standard. See, e.g., National Wildlife Federation v. Coleman, 529
F.2d 359, 371-72 (5th Cir.), cert. denied sub nom. Boteler v.
National Wildlife Federation, 429 U.S. 979, 97 S.Ct. 489, 50
L.Ed.2d 587 (1976); Cabinet Mountains Wilderness/Scotchman's Peak
Grizzly Bears v. Peterson, 685 F.2d 678 (D.C.Cir.1982).
B. Section 9
As to Plaintiffs' § 9 claim, the district court stated: "The
de novo review of the ESA § 9 "takings' claims as approved by the
Fifth Circuit in Sierra Club v. Yeutter, 926 F.2d 429, 438 (5th
Cir.1991), should continue through the remedy phase of this case."
1 R. at 92. The district court then proceeded to conduct de novo
review of the Interim Guidelines, and in doing so intimated this
standard was applicable to review of administrative agency action
under § 9 generally.
In Yeutter, we addressed the Forest Service's contention that
the district court should have used the arbitrary and capricious
standard in considering the § 9 claim asserted against the plan
then under scrutiny by noting that in those district court
10 proceedings "the government's trial attorney repeatedly invited the
[district] court to try the section 9 claim de novo." Yeutter, 926
F.2d at 438. Accordingly, we concluded:
Because it is a "cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by [a] party," we are not inclined to rule in the government's favor when, as here, it articulated to the court that it sought review under the standard it now challenges.
Id. (footnote and citation omitted). Thus, as to the particular
plan before the district court in Sierra Club v. Lyng, 694 F.Supp.
1260 (E.D.Tex.1988), we held de novo review to be appropriate, but
only because the proponent of the plan had argued for such standard
and should not be allowed to complain about the adverse result
reached under that standard.
At this point, we emphasize that the Forest Service asked the
district court on remand to direct its attention to the Interim
Guidelines in lieu of the plan previously reviewed in Lyng, as the
Interim Guidelines represented the Forest Service's current policy
on timber harvesting in the Texas national forests.6 4 R. 872-82.
6 After the district court's order of June 17, 1988 (i.e., Sierra Club v. Lyng, 694 F.Supp. 1260 (E.D.Tex.1988)), the Forest Service submitted its first comprehensive plan. This plan was reviewed and partially rejected by the district court on October 21, 1988, and the Forest Service was given an additional sixty days to submit a revised plan. On December 19, 1988, pursuant to the October 21, 1988 order, the Forest Service submitted a second comprehensive plan. Subsequently, the Forest Service appealed the June 17, and October 21, 1988 orders.
On appeal, we concluded that the district court had employed the wrong standard of review in analyzing the Forest Service's first comprehensive plan and ordered the district court on remand to reconsider that plan under the arbitrary and capricious standard. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.1991). While the first comprehensive
11 Further, unlike in Lyng, the Forest Service argued to the district
court for the application of the arbitrary and capricious standard
in reviewing the Interim Guidelines. Id. See also 4 R. at 684-90;
2 R. at 122. Consequently, our holding in Yeutter as to de novo
review under § 9 was restricted to the plan considered by the
district court in Lyng, and was not to extend beyond those
proceedings.
The ESA permits judicial review of agency action but does not
establish the standard to be applied in conducting such review.
See, e.g., 16 U.S.C.A. §§ 1536(n), 1540(g). When a statute
authorizes judicial review of agency action without providing
standards for that review, we look to the APA, 5 U.S.C.A. § 701 et
seq., for guidance. Avoyelles Sportsmen's League, Inc. v. Marsh,
715 F.2d 897, 904 (5th Cir.1983); Peterson, 685 F.2d at 685.
Section 706(2)(A) of the APA provides:
The reviewing court shall—
* * * * * *
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....
plan awaited reconsideration on remand, and before the district court ever addressed the second comprehensive plan, the Forest Service filed its Motion to Approve Plan on June 17, 1992. Therein, the Forest Service asked the district court to disregard all other plans and to examine and approve the Interim Guidelines, as they represented the Forest Service's current policy on timber harvesting in the Texas national forests. Thus, the district court order giving rise to this appeal focused on a new plan different from the one at issue in Lyng and Yeutter.
12 Thus, the appropriate standard of review of agency action under the
ESA, including § 9, is whether the action was arbitrary and
capricious.
Note that the APA does provide a de novo standard of review.
5 U.S.C.A. § 706(2)(F). De novo review, however, is authorized
under § 706(2)(F) in only two circumstances:
First, such de novo review is authorized when the action is adjudicatory in nature and the agency factfinding procedures are inadequate. And, there may be independent judicial factfinding when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). See also Camp v.
Pitts, 411 U.S. 138, 141-42, 93 S.Ct. 1241, 1243-44, 36 L.Ed.2d 106
(1973); Avoyelles Sportsmen's League, Inc., 715 F.2d at 905. The
development of a timber management plan is not adjudicatory in
nature, and the Plaintiffs did not bring this suit to enforce any
action of the Forest Service. Thus, de novo review is inapplicable
to the facts of this case.
IV. Conclusion
Having reviewed the district court's Superseding Order of
March 21, 1994 in light of the foregoing discussion, we conclude
that the district court misunderstood our directive in Yeutter and
improperly reviewed the Forest Service's Interim Guidelines for
compliance with ESA § 9 under a de novo standard. Therefore, the
district court order is vacated, and the cause is once again
remanded to the district court to review the Forest Service's
Interim Guidelines for compliance with the ESA, both §§ 7 and 9,
13 applying the arbitrary and capricious standard of review.7 Under
this standard, administrative action is upheld if the agency has
considered the relevant factors and articulated a rational
connection between the facts found and the choice made. See
Baltimore Gas & Elec. Co. v. Natural Resources Defense Council,
Inc., 462 U.S. 87, 105, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983)
(citing Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824 (1971));
Chemical Mfrs. Ass'n v. U.S. Envtl. Protection Agency, 870 F.2d
177, 199 (5th Cir.1989), cert. denied sub nom. PPG Indus., Inc. v.
U.S. Envtl. Protection Agency, 495 U.S. 910, 110 S.Ct. 1936, 109
L.Ed.2d 299 (1990). Although the district court's inquiry into the
facts is to be searching and careful, the ultimate standard of
review is a narrow one. Volpe, 401 U.S. at 416, 91 S.Ct. at 824.
"If the agency produces a plan that is legally sufficient, when
reviewed under the arbitrary and capricious standard, the district
court is not to substitute its judgment for that of the agency as
to which particular features might be most desirable or
efficacious." Yeutter, 926 F.2d at 440. Pending review of the
Interim Guidelines by the district court under the appropriate
7 While this case was pending before us, the Forest Service's Southern Region issued a Record of Decision ("ROD") dated June 21, 1995, adopting its final strategy to recover the RCW. This ROD affects the Southern Regional Guide and land and resource management plans ("LRMPs") for the national forests in Alabama, Georgia, Tennessee, Kentucky, North Carolina, South Carolina, Florida, Louisiana, Mississippi, Arkansas, and Texas. Although this ROD replaces the Interim Guidelines throughout the Southern Region, even after the new LRMP for the Texas national forests and grasslands is adopted the final strategy can be implemented only partially due to the continuing effect of the existing injunction.
14 standard of review, the injunction issued in Lyng, as subsequently
modified by the October 21, 1988 order, remains in effect.
VACATED; cause REMANDED.