Clearcutting Ordered Halted on Federally Owned Lands

Ever since the Forest Service in 1964 endorsed clearcutting as an acceptable method of harvesting trees on public lands, a running battle has been fought on the issue between conservationists and the timber industry. To the latter, the technique of logging all trees within a designated area, irrespective of their age, size, and health, is the most efficient way to meet the nation's timber needs in a time of rapidly climbing prices. Conservationists, on the other hand, charge that clearcutting is needlessly wasteful of growing trees, creates serious erosion problems, and defaces the landscape.

On November 6, a federal judge at Elkins, West Virginia, handed conservationists a stunning victory.¹ Judge Robert Maxwell ruled that the Organic Act of 1897² does not permit clearcutting on federal owned forest lands. Plaintiffs, West Virginia Division of the Izaak Walton League, Sierra Club, Natural Resources Defense Council, West Virginia Highlands Conservancy, and an individual West Virginia resident, sought declaratory and injunctive relief to assure that in three proposed timber harvesting contracts, and in all future contracts, matured, or large growth trees which had previously been selected and marked by Forest Service personnel, and would require the removal of all felled trees. The plaintiffs pointed to § 476 of the Organic Act, which provides that "for the purpose of preserving the living and growing timber and promoting the younger growth on national forests, the Secretary of Agriculture … may cause to be designated … so much of the dead, matured or large growth of trees found upon such may sell the same." The defendants, Secretary of Agriculture Earl Butz and several officials of the Forest Service, argued that § 475 of the Act, which states that the purpose of establishing national forests is in part "to furnish a continuous supply of timber for the uses and necessities of the citizens of the United States," should be given great weight. Clearcutting, they urged, represented a decision that a group of trees had been determined to be collectively "dead, matured, or large growth." By the same logic, they contended, trees could be "designated" as a group. Extension of this "collective" argument to the Act's requirement that all cut timber be removed would seem difficult, but the defendants somewhat bafflingly explained that "the same approach can be applied to the 'cut and remove' language — every tree and stick need not be removed."

Plaintiffs and defendants had stipulated the plaintiff's standing to sue, as well as a number of factual issues: that some of the trees in the designated areas were not dead, physiologically matured, or lage; that defendants' procedures did not call for individual marking of trees; that contractors were not required to remove all cut trees from the forest; and that the contract was representative of others for the sale of timber in the Monongahela National Forest. The decision came on cross motions for summary judgment.

The court reviewed the variations of clearcutting as described in the complaint, which was based on the Forest Service Manual. It noted that under the terms of the contracts proposed by the Forest Service, trees as small as five inches in diameter at breast height would be harvested, and areas as large as 75 acres (equivalent to a square with sides approximately two city blocks long) would be denuded.

Judge Maxwell observed that the Organic Act of 1897 had been passed because of Congress' "apparent distaste and antagonism toward certain exploitative practices which occurred in the lumber industry." He noted that the specific items of § 476 control the more general terms of § 475. Citing the dictionary definitions of "dead," "mature," and "large," the judge declared that to interpret "mature" to mean any tree which the Secretary of Agriculture has found it desirable to have cut would do violence to the statute's intent. The requirement that trees be marked was designed as further protection against inadvertent or intentional exploitation of the nation's forests.The terms "marking," referring to individual trees, and "designation," referring to broad areas, were not interchangeable, the court said, despite defendants' urgings to the contrary. The judge noted that in all the many statutes concerning forest lands which have been enacted since 1897, Congress has refused to repeal the Organic Act's requirements as to the type of trees which may be cut on federal lands. While granting that clearcutting might represent the "appropriate state of the science of silviculture, business, forest management and administration," it was prohibited by the language of the Organic Act. The remedy for the Forest Service, therefore, was to present to Congress the case for amending the Act, not to violate it.

Environmentalists greeted the news of Judge Maxwell's decision with surprise and pleasure. One commented [3 ELR 10178] that the 1897 Organic Act was "another Refuse Act," referring to the "rediscovery" in the 1960's of the 1899 federal statute prohibiting discharges into navigable waterways. Although the Refuse Act seems to have been intended primarily to protect navigation rather than water quality, the parallel is historically apt. The 1890's were a decade in which the American public and Congress were coming to realize the social costs of unfettered commercial expansion — overforesting of public lands, pollution of rivers and harbors, monopolistic practices — and were taking countermeasures. Three-quarters of a century later, long after the muckrakers have departed from the scene, this country has again become aware of the price it is paying for a period of mass production and consumption, and is finding the solutions of the Nineties a useful tool in dealing with the problems of the Seventies.

1. West Virginia Division, Izaak Walton League v. Butz, 3 ELR 20895 (N.D. W.Va. Nov. 6, 1973).

2. 16 U.S.C. 473-482, 551.