ELR Citation: ELR 20426
No(s). 93-5050 (5th Cir. Nov 15, 1994)

The court vacates a district court preliminary injunction under the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) barring the U.S. Forest Service from conducting even-aged management in any of the four national forests in Texas and from proceeding with nine timber sales in these forests. The court first holds that although the district court's order appears to enjoin the Forest Service's entire even-aged management agenda, the injunction, properly read, applies only to the nine timber sales that were before the district court. The court holds that it will focus on the issues presented by the environmental assessments (EAs) for the timber sales and will not discuss the validity of either the final environmental impact statement or the land and resource management plan to which the EAs are tiered, because the injunction was granted based on the Texas environmental agency's likely success on its claims that the EAs violated the NFMA and NEPA. The court holds that conclusion that even-aged management is not the "exception" to the "rule" of uneven-aged management is supported by the NFMA's legislative history. The court thus holds that the NFMA does not bar even-aged management or require that it be undertaken only in exceptional circumstances; it requires that the Forest Service meet certain substantive restrictions before it selects even-aged management.

The court holds that the Forest Service's determination as to the appropriate level of protection required under the NFMA is not unreasonable and is entitled to deference. The Act's directive that national forests are subject to multiple uses, including timber uses, suggests that the mix of forest resources will change according to a given use. The fact 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—the Forest Service. The agency's discretion is not unbridled, however, as the statute requires the Forest Service to provide for diversity of plant and animal communities and regulations implementing the NFMA provide a minimum level of protection by mandating that the Forest Service manage fish and wildlife habitats to insure viable populations of species in planning areas. The court holds that the agency's EAs for the nine timber sales fall within the outer boundaries of the NFMA's protection and diversity requirements. Each EA considered no action, even-aged management, and uneven-aged management alternatives. Moreover, the EAs do not ignore old growth ecosystems and also address wildlife habitat concerns. The court holds that given the goals stated in the EA for one particular area, the Forest Service's selection of an even-aged management alternative for that area is not arbitrary or capricious. The court then holds that the EAs prepared by the Forest Service for the nine timber sales adequately address NEPA requirements, including the need for the proposed actions, alternatives, the environmental consequences, mitigating measures, social and economic factors, and the agencies and persons consulted.

[Previous decisions in this litigation are published at 24 ELR 20051 and 20888.]

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
Martin Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.