Sierra Club v. Mike Espy, in His Official Capacity as Secretary of Agriculture

38 F.3d 792
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 21, 1994
Docket93-5050
StatusPublished
Cited by78 cases

This text of 38 F.3d 792 (Sierra Club v. Mike Espy, in His Official Capacity as Secretary of Agriculture) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sierra Club v. Mike Espy, in His Official Capacity as Secretary of Agriculture, 38 F.3d 792 (5th Cir. 1994).

Opinion

*795 PATRICK E. HIGGINBOTHAM, Circuit Judge:

The district court issued a preliminary injunction barring the Forest Service from conducting even-aged management in any of the four Texas national forests. The injunction was based on the district court’s finding of probable success on plaintiffs’ claims under two statutes: the National Forest Management Act, 16 U.S.C. §§ 1600-1614, and the National Environmental Policy Act, 42 U.S.C. §§ 4321^347. The government and the timber industry intervenors bring this interlocutory appeal challenging the district court’s order.

We disagree with the district court’s insistence that NFMA restricts even-aged management to exceptional circumstances. We are persuaded that the district court erected too high a barrier to even-aged management. The standard that even-aged management may be used only in exceptional circumstances goes to the heart of the finding by the district court of a likelihood of success on the merits and upsets the delicate balance struck by Congress between friends and foes of this harvesting method. We must vacate the preliminary injunction and remand.

I.

A.

The Forest Service of the Department of Agriculture is charged with administering the resources of this country’s national forests “for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” Multiple-Use Sustained-Yield Act of 1960,16 U.S.C. § 528. The principles of MUSYA were expressly incorporated into the statutory and regulatory scheme of NFMA. The pressures to enact NFMA came from many sources. On the one hand, there was increasing national concern over the Forest Service’s use of clearcutting. On the other hand, Congress felt it necessary to counteract a Fourth Circuit decision which strictly construed the Organic Act of 1897 to effectively prohibit the practice of clearcutting in the national forests. See West Va. Div. of the Izaak Walton League of Am., Inc. v. Butz, 522 F.2d 945 (4th Cir.1975) (the Monongahela decision). The result was a compromise expressed in a statute repealing the portion of the Organic Act interpreted in the Monongahela decision, Pub.L. No. 94-588, § 13,1976 U.S.C.C.A.N. (90 Stat.) 2949, 2958, yet imposing new procedural and substantive restraints on the Forest Service.

Specifically, NFMA sets forth requirements for Land and Resource Management Plans under which the national forests are managed. The national forests are divided into management units, see 36 C.F.R. § 200.2, and the Forest Service must prepare an LRMP for each unit. An LRMP must “provide for multiple use and sustained yield of the products and services obtained [from units of the National Forest System] ..., and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness....” 16 U.S.C. § 1604(e)(1). Once an LRMP is in place, the Forest Service can decide to sell timber only after analyzing timber management alternatives and the sale’s particular environmental consequences. Site-specific analysis, sometimes referred to as compartment-level analysis, must be consistent with the LRMP. Id. § 1604(i).

Broadly stated, there are two ways to manage a forest’s timber resources. The first method is even-aged management. See 36 C.F.R. § 219.3. Even-aged management includes clearcutting, where all the trees are cut down; seed tree cutting, where most of the trees are cut down, leaving only a few to naturally seed the cut area; and shelterwood cutting, where about double the number of trees are left standing as would be under the seed tree method. Even under the least intrusive even-aged management technique, shelterwood cutting, only about sixteen trees per acre remain after a cut. Moreover, under seed tree cutting, the older trees left to naturally seed the cut area are later removed. Even-aged management results in stands of trees that are essentially the same age. Before choosing to elearcut a portion of the forest, the Forest Service must find that clearcutting is the “optimum method” for achieving the objectives and requirements of the LRMP. 16 U.S.C. § 1604(g)(3)(F)(i). Similarly, before choosing to seed tree cut or *796 shelterwood cut, the Forest Service must find that those methods are “appropriate” for achieving the objectives and requirements of the LRMP. Id.

The second method of timber resource management is uneven-aged management, also known as selection management. See 36 C.F.R. § 219.3. Uneven-aged management encompasses both single tree selection and group selection. Group selection involves cutting small patches of trees, while single tree selection involves selecting particular trees for cutting. Uneven-aged management maintains a continuous high-forest cover, and the stands are characterized by a number of differently aged trees.

The process prescribed by NFMA is intertwined with NEPA. NEPA requires federal agencies to prepare a detailed Environmental Impact Statement to be included in every major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C). NEPA is, of course, a procedural statute, mandating a process rather than a result. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989); see Sabine River Auth. v. United States Dep’t of Interior, 951 F.2d 669, 676 (5th Cir.), cert. denied, — U.S. —, 113 S.Ct. 75, 121 L.Ed.2d 40 (1992). NEPA regulations are made applicable to NFMA by 16 U.S.C. § 1604(g)(1). By regulation, the Forest Service has committed to prepare an EIS before adopting an LRMP. . 36 C.F.R. § 219.10(b). Once the Forest Service has adopted an LRMP, its specific actions in implementing that plan will typically be undertaken after preparation of a site-specific Environmental Assessment.

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