Fourth Circuit Affirms Ban on Clearcutting in Monongahela National Forest

In a landmark decision¹ which may have far-reaching effects on the U.S. Forest Service's management of the nation's timber resources, the Fourth Circuit Court of Appeals has upheld a lower court ruling that the Organic Act of 1897² bans clearcutting on federally-owned land in the Monongahela National Forest in West Virginia. Conservationists have strenuously objected to the use of this harvesting technique, which consists of felling all trees within a designated area regardless of size, age, or health, in national forests. They contend that it unnecessarily wastes growing trees, defaces the landscape, and creates serious erosion problems. Lumber companies, on the other hand, argue that clearcutting is the most efficient way to meet the nation's timber needs.³

In December 1973, a number of environmental groups, including the West Virginia Division of the Izaak Walton League, the Sierra Club, the Natural Resources Defense Council, and the West Virginia Highlands Conservancy, won a federal district dcourt injunction barring the Forest Service from allowing the cutting of trees within the Monongahela other than those which are "dead, matured, or large growth" and which have been individually marked prior to harvesting.⁴ The Service was also told not to permit the leaving of unmarketable felled timber at the harvesting site, and to revise its regulations in accordance with the court's opinion.

After moving unsuccessfully to have the order amended,⁵ the Forest Service appealed the ruling to the Fourth Circuit. The court of appeals, however, was no more charitable to the defendants' arguments than the district court had been. In an opinion written by Judge John A. Field, with Judges John D. Butzner and Herbert S. Boreman concurring, the three-judge panel held that both the statutory language and legislative history support the district court's interpretation of the Organic Act. The court found that the agency was mistaken in its view that "large growth" refers to a sizable stand or grouping of trees, and that "mature" refers to economic maturity, or the point at which the tree has the highest marketable value, rather than to physiological maturity, or the point at which growth begins to taper off and the tree loses its health or vigor.

The court also agreed that the statutory phrase "marked and designated" means each tree to be cut within a designated area much first be individually marked, rather than simply fall within the designated area, as the Forest Service asserted. Sierra Club v. Hardin,⁶ in which pre-sale marking of individual trees was held too onerous and therefore unnecessary in the case of a very large timber sale in Alaska, failed to persuade the court to the contrary, in light of the legislative history which clearly demonstrates that the primary concern of Congress in passing the Organic Act was preservation of the national forests.

Defendants also argued that subsequent legislation, principally the Multiple-Use Sustained Yield Act of [5 ELR 10176] 1960,⁷ together with long-standing administrative interpretations and practices, supported their view of the Organic Act. The court, however, characterized this as in effect a suggestion that the Multiple-Use Act had repealed by implication the restrictive provisions of the Organic Act, a proposition untenable in the face of the former statute's specific recognition that it is supplemental to, not in derogation of, the latter. Nor, according to the Fourth Circuit, can the Multiple-Use Act be considered to embody congressional ratification of the relatively recent (as of 1960) Forest Service policy of applying clearcutting as a management principle in the national forests.

In answer to the Forest Service's reliance on its existing practice of allowing clearcutting as an administrative interpretation entitled to considerable weight, the court borrowed language from the D.C. Circuit Court of Appeals opinion in Wilderness Society v. Morton,⁸ noting that:

a line must be drawn between according administrative interpretations deference and the proposition that administrative agencies are entitled to violate the law if they do it often enough.

Judge Field admitted that his reading of the Organic Act will have "serious and far-reaching consequences," and that this statute, enacted more than 75 years ago, may well be an anachronism which no longer serves the public interest. He concluded, however, that the "appropriate forum to resolve this complex and controversial issue is not the court but the Congress."

The Fourth Circuit concluded its opinion by pointing out that at the heart of the controversy over clearcutting lies the change in the role of the Forest Service over the last 30 years. Until World War II, the Service regarded itself as the custodian of the national forests rather than as a prime timber producer, and the national forest system provided only five percent of the nation's timber supply with the rest coming from privately owned forests. Starting in 1940, however, and continuing through the post-war building boom, there was an enormous increase in the demand for lumber, and with private reserves badly depleted, the role of the agency quickly changed from protector to producer. About one-third of the lumber used in the United States each year originates in national forests. It was in service of this new role that the Service initiated the policy of clearcutting in national forests, first in the West and then in eastern forests such as the Monongahela.

Although the Fourth Circuit's decision could support a challenge to clearcutting on western national forest lands, the district court injunction which the court of appeals affirmed was limited to the Monongahela National Forest, and the appeals court ruling is binding precedent only in the four states of Virginia, West Virginia, North Carolina and South Carolina. Environmentalist litigants will almost certainly attempt to extend the geographical scope of the Fourth Circuit's ruling by using the decision as support for challenges to timber sales in national forests in other areas of the nation, however. Should the defendants appeal to the Supreme Court and lose on the merits, this extension would be expedited. A denial of certiorari, on the other hand, could only serve to undermine the Forest Service's defenses in the other judicial circuits.

In response to the ruling, the Forest Service adopted a strategem recently used by the Federal Highway Administration and suspended timber sales from all nine national forests within these four states. FHWA, as the first step in its attempt to have NEPA amended in the wake of the Second Circuit's ruling that impact statement preparation could not be delegated to state agencies,⁹ halted the granting of all construction contracts on a number of federally-funded highway projects in the three Second Circuit states.¹⁰ The timber sales suspension was described by the Forest Service as an interim measure while a decision is made on whether to appeal the ruling to the Supreme Court or instead ask Congress to rewrite the Organic Act. Appealing the Fourth Circuit ruling would be a risky business for the defendants, since affirmance by the Supreme Court would in one blow essentially ban clearcutting in all national forests. Some observers thus see the present timber sales suspension within the Fourth Circuit region as the first move by the Service toward generating congressional pressure for amending the statute, an effort which may be pursued regardless of whether or not an appeal is taken.

The real impact of the moratorium on timber sales within the Fourth Circuit on total lumber production from national forests is minimal, since it involves only about three percent of the Forest Service's planned sales of 12 billion board feet in the coming year, most of which are made from forests in western states. The Service claims, however, that extension of the clearcutting ban to all national forests could force a 75 percent reduction in those plans.

As suggested by Judge Field's citation of Wilderness Society v. Morton, the crux of the legal dispute between the environmental groups and the Forest Service in West Virginia Division of the Izaak Walton League v. Butz is analogous to the issue raised before the D.C. Circuit in that litigation, better known as the Alaska Pipeline case. In both instances, the federal agency defendants argued that the court should not permit a literal reading of an old and allegedly outdated statute to frustrate a policy change or administrative action which was perceived by the agency to be in the public interest. And in both cases, the courts of appeals refused to rewrite the statute judicially, no matter how desirable the administrative purpose or intended result might seem.

[5 ELR 10177]

The comparison of the clearcutting decision with Wilderness Society seems particularly apt in another respect. The environmental groups' victory in the D.C. Circuit in that case led Congress to amend the Mineral Leasing Act of 1920 to allow the granting of a pipeline right-of-way greater than 50 feet in width in order to make possible exploitation of vast oil reserves on the North Slope of Alaska. The Fourth Circuit's dramatic placement of the responsibility for any change in the Organic Act's restrictive provisions at Congress' doorstep could produce the same legislative result, coming as it does in conjunction with Forest Service claims that the court's interpretation of the Act, if not overridden, may lead to a significant decrease in national timber production.

Thus the Service will probably chose to place its heavies bet on securing a congressional amendment to the restrictive provisions of the Organic Act regarding lumbering in the national forests. But the parallel with the Alaska Pipeline may not work out. Timber needs from national forests, especially with the present slump in lumber demand caused by the sag in housing starts, are simply not as compelling as was the perceived need for Alaskan oil in the winter of 1973. So the agency cannot be too sure that Congress will deliver on cue an explicit statutory license authorizing the Forest Service to allow clearcutting throughout the National Forest System. As recent committee hearings and reports¹¹ have indicated, there is considerable controversy within the Congress itself as to the propriety and desirability of permitting clearcutting on public lands. And as was the case with the recent FHWA push to amend NEPA, the Forest Service might very well wind up with much less of a license than it sought, thanks to the determined efforts of environmental supporters in Congress.¹²

1. West Virginia Division of the Izaak Walton League v. Butz, 5 ELR 20572 (4th Cir. Aug. 21, 1975).

2. 16 U.S.C. §§ 473-482, 551.

3. For further discussion of the clearcutting debate, see Clawson, Forests For Whom and For What? at 10-11, 126-127 (1975).

4. West Virginia Division, Izaak Walton League v. Butz, 367 F. Supp. 422, 3 ELR 20895, 4 ELR 20128 (N.D. W. Va. 1973). See also Comment, Clearcutting Ordered Halted on Federally Owned Lands, 3 ELR 10177 (Dec. 1973).

5. 4 ELR 20229.

6. 325 F. Supp. 99, 1 ELR 20161 (D. Alas. 1971), vacated and remanded on other grounds, sub nom. Sierra Club v. Butz, 3 ELR 20292 (9th Cir. 1973).

7. 16 U.S.C. §§ 528-531.

8. 479 F.2d 842, 865; 3 ELR 20085, 20095-96 (D.C. Cir. 1973).

9. Conservation Society of Southern Vermont v. Secretary of Transportation, 508 F.2d 927; 5 ELR 20068 (2d Cir. 1974).

10. See Comment, Congress Under Pressure to Amend NEPA to Allow State Participation in Impact Statement Preparation, 5 ELR 10081 (June 1975).

11. See generally, An Analysis of Forestry Issues in the First Session of the Ninety-Second Congress, Senate Comm. on Interior and Insular Affairs, 92d Cong., 2d Sess. 4 (1972); Clearcutting on Federal Timberlands, Report by the Subcomm. on Public Lands to the Senate Comm. on Interior and Insular Affairs, 92d Cong., 2d Sess. 2 (1972); Hearings on Establishment of a Commission to Investigate Clearcutting of Timber on Public Lands before the Subcomm. on Forests of the House Comm. on Agriculture, 92d Cong., 2d Sess. (1972).

12. See Comment, Two Amendments Leave NEPA Intact: Congress Confers Limited Authority on State Officials to Prepare NEPA Statements, 5 ELR 10173 (Oct. 1975).