ELR Citation: ELR 20051
No(s). L-85-69-CA (E.D. Tex. May 12, 1993)

The court holds that environmental groups are entitled to a preliminary injunction prohibiting the U.S. Forest Service from completing imminent timber sales and engaging in even-aged logging in Texas national forests, pending resolution of the groups' challenges under the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA). The court first waives the exhaustion of administrative remedies requirement for the groups' challenge to a final land and resource management plan (LRMP) promulgated in 1987, due to the Forest Service's "absolute shutdown" of the administrative appeal apparatus. The Forest Service had announced in 1989, that there would be no final decision on the administrative appeal then pending, because a new LRMP for the Texas national forests was to be developed. The court then notes that the arbitrary and capricious standard of review applies to agency action reviewable under the Administrative Procedure Act (APA), whereas review of ambiguous statutory directives and largely discretionary procedural decisions under the NFMA and NEPA is governed by a reasonableness standard.

The court holds that the groups do meet all requirements necessary to obtain a preliminary injunction. First, there is a substantial likelihood that plaintiffs will succeed on the merits of their NFMA claims against the defendant's even-aged logging agenda, because the Forest Service has failed to fulfill the NFMA's substantive obligations. The court rejects the Forest Service's contention that the NFMA is only a planning statute that lacks judicially challengeable substantive components; rather, the Act sets unambiguous, substantive boundaries on agency discretion, and envisions that even-aged management techniques will be used only in exceptional circumstances. The Forest Service, however, appears to use such practices as the rule, rather than the exception. Consequently, the groups are substantially likely to demonstrate the Forest Service's failure to satisfy NFMA §1604(g)(3)(F)(v)'s unambiguous requirement of actual forest resource protection. The court holds that the plaintiffs stand a substantial likelihood of success on their NEPA claims as well, because the NFMA incorporates NEPA's procedures, and the groups are likely to show, with support from the administrative record, that the Forest Service failed to assess meaningfully and in good faith the foreseeable, significant environmental consequences of its planned even-aged logging activities.

The court holds that the "balance of harms" test is favorable to the plaintiffs. Since the impending timber sales are likely to violate the NFMA natural resources provisions, completion of the sales poses a substantial threat of irreparable harm to the national forest resources, as well as to the group members who use the forests. The irreparable environmental harm threatened is greater than that caused by the injunction against even-aged logging, because the Forest Service is not enjoined from thinning and selection management tree cutting. The injunction would serve the public interest in national forest resource protection.

Finally, the court denies the Forest Service's motion for summary judgment, because there are genuine issues of material fact to be resolved judicially under the NFMA and NEPA.

Counsel for Plaintiffs
Douglas L. Honnold
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants
Ruth H. Yeager, Ass't U.S. Attorney
U.S. Attorney's Office
110 N. College St., Ste. 700, Tyler TX 75702
(903) 597-8146