The ink was not dry on the National Forest Management Act (NFMA) when a lawsuit was instituted in Texas that precipitated a quarter of a century of litigation over the extent to which NFMA created enforceable restrictions on clearcutting in the “piney woods’ of the National Forests of Texas. The Texas Committee on Natural Resources (TCONR), represented by Ned Fritz, a revered hero of the environmental movement in Texas, took on the Government in a series of cases, obtaining favorable rulings in the Eastern District Court, only to be reversed in the Fifth Circuit. These cases, which engaged numbers of Natural Resources Section (NRS) attorneys, Appellate attorneys, an Assistant United States Attorney, and dedicated agency counsel, played out in dramatic fashion the tension between enforceable standards and agency discretion inherent in NFMA.
Texas Committee on Natural Resources v. Bergland, 433 F.Supp. 1235 (E.D.Tex.1977), in which the renowned Honorable William Wayne Justice described in meticulous detail the harmful effects of clearcutting, did not reach the NFMA challenges asserted by plaintiffs, but enjoined all forms of even-aged management in the Texas Forests pending the preparation of a detailed Environmental Impact Statement (EIS) examining these impacts. At this time, the Forest Service was operating under the “Church Guidelines,” imposed by Congress to govern the practice of clearcutting pending the promulgation of permanent guidelines in the NFMA-implementing regulations. The Church Guidelines were nearly identical to the comparable provisions in NFMA. In reversing Judge Justice, the Fifth Circuit characterized both the Guidelines and NFMA as “an effort to place the initial technical, management responsibility for the application of NFMA guidelines on the responsible government agency, in this case the Forest Service. The NFMA is a set of outer boundaries within which the Forest Service must work.” And that “[w]ithin its parameters, the management decision belongs to the agency and should not be second-guessed by a court.” Texas Committee on Natural Resources v. Bergland, 573 F. 2d 201, 210 (5th Cir. 1978).1 TCONR wasn’t done, however, and it nearly succeeded in using the Fifth Circuit’s language of “outer boundaries” and “parameters” to effectively permit de novo review of whether clearcutting was damaging forest resources.
TCONR first claimed that NFMA allowed them to challenge “actual, on-the-ground practices of the Forest Service” in Sierra Club v. Espy, 822 F. Supp. 356, 363 (E.D. Tex. 1993). Judge Robert Parker avoided directly addressing this issue in his opinion, choosing instead to stay within the record review requirement of the Administrative Procedure Act(APA), in addressing the claims. Starting from NFMA’s mandate that the regulations “insure” that even-aged cuts be used only where they are “carried out in a manner consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources, and the regeneration of the timber resource,” 16 U.S.C. § 1604(g)(3)(F)(v), Judge Parker held that this provision designated a statutorily required “end” allowing judicial review of whether these “exceptional circumstances” were present.
From this vantage point, the Court looked at the challenged timber sales’ Environmental Assessments(EAs) and found that their candid disclosure of the adverse effects on species within the clearcut areas evidenced violation of the resource protection provision. 822 F. Supp. at 357-59. The Court issued a preliminary injunction against all even-aged logging in the Texas National Forests, and, in denying the Government’s motion for summary judgment, significantly found that there were “ material issues of fact” to be tried on the NFMA even-aged claims. 822 F. Supp. at 370.
Once again, the District Court was reversed. The Fifth Circuit accepted the “outer boundaries” language of Bergland as stating “substantive restrictions” on the use of even-aged management, but construed the language of NFMA as affording the Forest Service discretion in its choice of harvesting system, and rejected, on the basis of statutory construction and legislative history, the District Court’s view that even-aged management could only be used as an exception to a statutory preference for uneven-aged management. Sierra Club v. Espy, 38 F.3d 792 (5th Cir. 1994).
In doing so, the Court repeatedly referred to NFMA’s provisions to reject the restrictive interpretation given by the District Court, pointing out both the flexibility afforded by its provisions and the terms which necessarily required deference to the Forest Service’s expert judgment, concluding: “That protection means something less than preservation of the status quo but something more than eradication of species suggests that this is just the type of policy-oriented decision Congress wisely left to the discretion of the experts - here, the Forest Service.” 38 F.3d at 800. The Court eschewed defining “precisely the outer boundaries of NFMA’s protection and diversity requirements,” finding that the EA’s “fall clearly within such boundaries.” 38 F.3d at 801.
The final chapter of the Texas clearcutting saga was played out on remand, with another District Court victory, requiring the Environment and Natural Resources Division (ENRD) ultimately to obtain a ruling from an en banc panel of the Fifth Circuit on the “final agency action” requirement of the APA to prevent the injunction of all even-aged logging on the Texas Forests. And yet while the litigation ultimately vindicated the Forest Service’s regulatory discretion in utilizing even-aged logging practices, it left unanswered important questions regarding the enforceability of the particular provisions of the management plans and other decision documents developed under those regulations.
In Sierra Club v. Glickman, 974 F. Supp. 905 (E.D. Tex. 1997), TCONR achieved its goal of obtaining, over the strenuous objection of NRS attorneys, de novo review of even-aged management, a seven day bench trial during which evidence was presented of the deleterious effects on the various resources composing the natural forest environment. To get there, the District Court steered what ultimately proved a perilous course through the Fifth Circuit clearcutting precedents and Supreme Court jurisdictional rulings:
- The Court appeared to assume a priori a right in the plaintiffs to de novo review of on-the-ground impacts, distinguishing Espy as a challenge, by contrast, to the “Forest Service’s planning documents.” 974 F. Supp. at 912.
- Elaborating on this dichotomy, the Court posed the justiciability question in terms of whether NFMA required on-the-ground compliance, or merely required “the inclusion of precatory standards and guidelines in its planning documents.” 974 F. Supp. at 917 (emphasis added).
- Having framed the choice in these stark terms, the Court proceeded to broadly interpret the Fifth Circuit’s “substantive restriction” statements in Espy as requiring on-the-ground compliance. 974 F. Supp. at 914.
- Finally, acknowledging that it proceeded pursuant to the APA and its requirement that review be limited to “agency action,” the Court determined:
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 decision), the court has a “final agency action” to review.
974 F. Supp. at 914.
Having established parameters which effectively allowed the review of historical practices and their effects over decades untethered to any particular agency decision, the Court proceeded to find that even-aged management practices had damaged soils, the watershed, and watershed associated resources, beyond the substantive limits established in NFMA for their protection. 974 F. Supp. at 928-29. The Court further found that the Forest Service had failed to adequately obtain population data to assess the impacts on the viability of species and to monitor the effects of its management activities. 974 F. Supp. at 933-42. It issued a blanket injunction against timber harvesting pending correction of these deficiencies. 974 F. Supp. at 945.
Again, the matter went to the Fifth Circuit. Clearly impressed with the depth of the District Court’s fact-finding, the majority in Sierra Club v. Peterson, 185 F.3d 349 (5th Ci4. 1999), dealt with the jurisdictional issues by first finding that plaintiffs had standing, which the parties had not briefed. 185 F.3d at 359-364. Reinforced by this conclusion, the majority proceeded to take the extraordinary view, contrary to the contentions of both parties to the appeal, that both the assumed approval of even-age harvesting techniques in the Texas National Forests, and the failure of the Forest Service to follow its regulations, were “informal adjudications” under the APA, and that this resolved the “final agency action” question. 185 F.3d at 366-369.
Judge Garza vigorously dissented, arguing that the plaintiffs had not identified a “final agency action” for judicial review, id. at 375-80, and in en banc review, this view narrowly prevailed on the basis that plaintiffs had sought wholesale review of general forestry practices forbidden by the Supreme Court’s holding in Lujan v. National Wildlife Federation, 497 U.S. 871(1990).
Significantly, the Court left open whether the plaintiffs could challenge the implementation of specific timber sales, which it asserted had not been pleaded. Id. at 569. Judge Higginbotham, in his concurrence, fleshed out this issue by stating that the form of such a challenge would be a “fact-intensive inquiry into whether actual implementation conforms to” the requirements of the timber sale decision documents and the contract of sale, but significantly stopped short of asserting that the plaintiffs could demonstrate that implementation directly violated the statute or the regulations. Id. at 570-71.
Lessons from the Texas Experience
The Texas clearcutting cases confirmed a truth about challenges to Forest Service activities under NFMA: that absent failure to follow a regulatory requirement which protected against an identifiable and obvious disaster, such as the “eradication of species,” see Espy, 38 F.3d at 800, the discretion afforded the Forest Service by the statute, and the limits of APA review, left environmental plaintiffs, assuming the management plans and the timber sale decision documents complied with the regulations, with oblique challenges to the failure to follow planning and decision documents, of uncertain result. See Ecology Center v. U.S Forest Service, 192 F.3d 922 (9th Cir. 1999) (challenge to failure to following monitoring requirements of Forest Plan held not actionable for failure to identify final agency action).2
1 All of this was dicta, as the Circuit had decided that the Church Guidelines were not subject to judicial review, and that this fact insulated the Forest Service even from having to prepare an EIS. Id. The Church Guidelines are footnoted in the opinion. Id. fn 8.
2 That statutes with substantive requirements, such as the Endangered Species Act, may prove more reliable tools is illustrated by TCONR’s comparative success in its claim that clearcutting effected a “taking” of the endangered red cockaded woodpecker. See, e.g., Sierra Club v. Lyng, 694 F. Supp. 1260 (E.D.Tex.,1988), aff’d in part, vacated in part, Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991).