ELR Citation: ELR 20775
No(s). 85-2226 (D.D.C. Jul 31, 1985)

The court holds that the Forest Service probably violated the National Environmental Policy Act in failing to prepare an environmental impact statement (EIS) for tree cutting in wilderness areas to control southern pine beetle infestations, but did not violate the Endangered Species Act. In examining whether plaintiffs are entitled to a preliminary injunction to stop the cutting, the court first holds that the environmental assessments prepared by the Forest Service fail to take a "hard look" at the impact of cutting wilderness areas. Furthermore, the Forest Service could not have rationally concluded that such cutting would not have any effects that may be major, and so should have prepared an EIS. The court rejects defendants' post hoc rationalizations for their actions, and notes other problems with the environmental assessments prepared, namely failure to discuss the efficacy of the cutting program and failure to examine alternatives.

Turning to the Endangered Species Act arguments, the court initially holds that plaintiffs substantially complied with the Act's 60-day notice requirement by giving notice and waiting to file until after both agencies receiving notice replied to it, even though less than 60 days elapsed between notice and filing. However, the court holds that plaintiffs have failed to show a likelihood of proving a taking of an endangered species.

The court proceeds to examine the other requisites for injunctive relief and holds that, in general, continued cutting in wilderness areas would constitute irreparable harm and that enjoining the cutting would cause no substantial harm. Regarding cutting with the sole purpose of protecting the red-cockaded woodpecker, an endangered species, the court finds that the limited nature of this cutting coupled with the public interest in protecting the species indicate that it should not be enjoined.

Accordingly, the court enjoins cutting for southern pine beetle control in the four wilderness areas, with an exception for cutting that is conducted in accordance with Fish and Wildlife Service guidelines for the sole purpose of preventing harm to the woodpeckers and of which notice has been given to the Service. Preparation of an EIS will require plaintiffs to show cause why the injunction should not be modified or vacated.

Counsel for Plaintiff
Eric P. Jorgensen
Sierra Club Legal Defense Fund
1424 K St. NW, Suite 600, Washington DC 20005
(202) 347-1770

Counsel for Defendant
Rebecca A. Donnellan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5396