Newton County Wildlife Ass'n v. United States Forest Service

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________

Nos. 96-1994 and 96-3463
___________

Newton County Wildlife *
Association; Sierra Club; *
Kent Bonar; Herb Culver; *
Howard Kuff; Tom McKinney; *
Jerry Williams, *
*
Plaintiffs - Appellants, *
*
v. *
* Appeals from the United States
United States Forest Service; * District Court for the
George Rogers; Gregory A. * Eastern District of Arkansas.
Hatfield; Robert C. Joslin; *
Lynn C. Neff, *
*
Defendants - Appellees, *
*
Arkansas Forestry Association, *
et al., *
*
Intervenors - Appellees. *

___________

Submitted: December 12, 1996

Filed: May 6, 1997
___________

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
___________

LOKEN, Circuit Judge.

Newton County Wildlife Association, the Sierra Club, and
certain individuals (collectively "the Wildlife Association") sued
the United States Forest Service and four of its employees
(collectively the "Forest Service") seeking judicial review of four
timber sales in the Ozark National Forest. Parties favoring timber
harvesting intervened to support the Forest Service. The Wildlife
Association filed sequential motions to preliminarily enjoin the
sales as violative of the Wild and Scenic Rivers Act ("WSRA"), 16
U.S.C. §§ 1271 et seq., and the Migratory Bird Treaty Act ("MBTA"),
16 U.S.C. §§ 703 et seq. The district court1 separately denied
each motion, and the Wildlife Association separately appealed those
orders. We consolidated the appeals and now affirm.

I. WSRA Issues.

Enacted in 1968, WSRA authorizes Congress or a responsible
federal agency to designate river segments that possess
"outstandingly remarkable" environmental or cultural values as
"components of the national wild and scenic rivers system." 16
U.S.C. §§ 1271, 1274. The responsible federal agency, here the
Forest Service, must establish detailed boundaries for each
designated segment, including an average of not more than 320 acres
of land per mile along both sides of the river. § 1274(b). Under
a 1986 amendment, the agency must also prepare a "comprehensive
management plan” within three fiscal years after a river segment is
designated. The plan "shall address resource protection,
development of lands and facilities, user capacities, and other
management practices necessary and desirable to achieve the
purposes of [WSRA]." § 1274(d)(1).

In 1992, Congress designated segments of six rivers within the
Ozark National Forest. The Forest Service's three-year deadline
for completing comprehensive management plans for these segments
(the "Plans") was September 30, 1995. It is undisputed that the

1
The HONORABLE WILLIAM R. WILSON, JR., United States District
Judge for the Eastern District of Arkansas.

-2-
Plans were not completed on time. Therefore, the Wildlife
Association argues that logging under the four timber sales must be
preliminarily enjoined until the agency complies with this
statutory mandate.

The Forest Service issued final agency actions approving the
four timber sales between August 23, 1994, and September 12, 1995,
before the agency’s WSRA planning deadline. The Wildlife
Association fails to relate this subsequent planning delinquency
to judicial review of the timber sales. It relies upon cases in
which plans or studies were a statutory precondition to the agency
actions under review. See Kleppe v. Sierra Club, 427 U.S. 390,
398-402 (1976) (National Environmental Policy Act), LaFlamme v.
F.E.R.C., 852 F.2d 389, 402 (9th Cir. 1988) (Federal Power Act),
and Thomas v. Peterson, 753 F.2d 754, 763-64 (9th Cir. 1985)
(Endangered Species Act). But WSRA does not mandate completion of
§ 1274(d)(1) plans before timber sales may be approved. Therefore,
the Forest Service did not violate WSRA by approving timber sales
during the planning process. That being so, the agency was not
required to suspend on-going implementation of the timber sales
when it later failed to complete the Plans on time. Absent
specific statutory direction, an agency's failure to meet a
mandatory time limit does not void subsequent agency action. See
Brotherhood of Ry. Carmen v. Pena, 64 F.3d 702, 704 (D.C.Cir.
1995); Kinion v. United States, 8 F.3d 639, 644 (8th Cir. 1993).
Moreover, because the preparation of WSRA Plans was not a
precondition to approving the timber sales, a reviewing court may
not enjoin or set aside the sales based upon the failure to prepare
the Plans. Although the Forest Service may well have WSRA
compliance obligations in approving timber sales (an issue not
before us), the agency has substantial discretion in deciding
procedurally how it will meet those obligations. Cf. Sierra Club

-3-
v. Cargill, 11 F.3d 1545, 1548 (10th Cir. 1993). The Forest
Service maintains land and resource management plans for each
national forest. Those plans "provide for multiple use and
sustained yield of [forest] products and services . . . [and]
coordination of outdoor recreation, range, timber, watershed,
wildlife and fish, and wilderness." 16 U.S.C. § 1604(e)(1); see 36
C.F.R. Part 219. In 1994, the Forest Service amended its
management plan for the Ozark National Forest to take into account
the 1992 WSRA designations. In addition, the agency prepared an
environmental assessment before approving each of the timber sales
in question. Had the Forest Service relied on WSRA Plans as
evidencing its compliance with WSRA in approving the timber sales,
then we would carefully examine that rationale. But absent a
specific statutory directive, we would usurp the agency's
procedural autonomy if we compelled it to channel its compliance
efforts into a particular planning format.2

Finally, a preliminary injunction would be inappropriate in
this case because the Forest Service contends that the four timber
sales lie outside the boundaries of the WSRA-designated river
segments, and the Wildlife Association has not refuted that
contention. The district court avoided this issue by ruling that
WSRA plans must encompass federally controlled areas that lie
outside but may affect a designated river segment. On appeal, the
Forest Service argues that WSRA plans need only encompass lands
lying within a designated segment and therefore its failure to

2
Of course, a party aggrieved by an agency's failure to meet
a statutory planning deadline may seek a court order compelling the
agency to complete the required plan. See Brock v. Pierce County,
476 U.S. 253, 260 n.7 (1986). However, the Wildlife Association
has not separately challenged the Forest Service's failure to
prepare WSRA Plans. Compare Sierra Club v. Robertson, 28 F.3d 753,
755 (8th Cir. 1994).

-4-
timely prepare the Plans cannot affect the timber sales in
question. We agree.3

Under WSRA, each designated river segment becomes a
"component" of the national system. § 1274(a). Following
designation, the responsible agency defines the boundaries of "each
component," determining how much land adjacent to the river is
included in the designation. § 1274(b). At that point, the agency
"charged with the administration of each component . . . shall
prepare a comprehensive management plan for such river segment to
provide for the protection of the river values." § 1274(d)(1). In
our view, the plain meaning of that provision limits the planning
requirement to the boundaries of the designated river segment,
because it is the designated “segment” that becomes a “component”
of the national system. This reading is confirmed by § 1281(a) of
the Act, which links agency planning and administration to the
designated component.4 Because the Forest Service may limit WSRA
plans to lands lying within designated river segments, failure to
timely prepare the Plans cannot be a basis for enjoining timber
sales on lands lying outside any designated area.

3
On January 14, 1997, while this appeal was pending, the
district court issued a more detailed order confirming its contrary
interpretation of WSRA. The court lacked jurisdiction over the
issue at that time, and its order is hereby vacated.
4
WSRA § 1283(a) imposes a general obligation on agencies
having jurisdiction over lands "which include, border upon, or are
adjacent to" a designated river segment to protect the river in
accordance with WSRA. But in our view, § 1283(a) does not require
agencies managing adjacent federal land to prepare or join in a
WSRA plan. It merely instructs their managers to take actions that
protect designated rivers. Whether that standard has been met in
a particular case is a question of fact. See Wilderness Soc'y v.
Tyrrel, 918 F.2d 813, 820 (9th Cir. 1990).

-5-
 If a plaintiff's legal theory has no likelihood of success on
the merits, preliminary injunctive relief must be denied. See
Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926,
931 (8th Cir. 1994). Therefore, the district court properly denied
the Wildlife Association's motion to preliminarily enjoin the
timber sales because of the Forest Service's failure to complete
WSRA Plans.5

II. MBTA Issues.

The Wildlife Association seeks judicial review of the timber
sales under the Administrative Procedure Act, 5 U.S.C. §§ 701 et
seq. As a matter of pleading, APA review is a single “claim for
relief” under Fed. R. Civ. P. 8(a). But the Wildlife Association’s
amended complaint made this lawsuit unnecessarily convoluted by
improperly pleading a separate “Claim for Relief” under each
federal statute that, in the Wildlife Association’s view, the
Forest Service has violated. Thus, its Sixth Claim for Relief
alleged that “approval of the Buffalo River Timber Sales violates
the Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.).” After
the district court denied preliminary injunctive relief under WSRA,
the Wildlife Association filed a second motion for a preliminary
injunction, seeking to enjoin implementation of the timber sales on
the ground that the Forest Service failed to obtain an MBTA
“special purpose” permit from the United States Fish and Wildlife

5
The Wildlife Association's contention that the district court
did not make the findings of fact and conclusions of law required
by Fed. R. Civ. P. 52(a) is without merit. Under Rule 52(a), the
district court must "sufficiently inform the [appellate] court of
the basis" of its decision. Scoggins v. Board of Educ., 853 F.2d
1472, 1477 (8th Cir. 1988). Here, the court ruled that the failure
to complete WSRA Plans did not warrant enjoining performance of the
timber sale contracts. Rule 52(a) requires no more.

-6-
Service. The district court denied the motion, concluding that it
does not have jurisdiction over a separate MBTA claim. One week
later, the court granted the Forest Service partial summary
judgment and dismissed the Wildlife Association's Sixth Claim for
Relief. The Wildlife Association appeals both orders.

The Wildlife Association argues that the APA confers
jurisdiction to grant injunctive relief "under the MBTA.” The
district court correctly concluded that the Wildlife Association's
MBTA claim is barred by Defenders of Wildlife v. Administrator,
E.P.A., 882 F.2d 1294 (8th Cir. 1989). In Defenders, plaintiffs
alleged that the agency violated MBTA when it terminated a
proceeding commenced under another statute, known as FIFRA, to
cancel strychnine pesticide registrations. After noting that MBTA
does not create private rights of action, we rejected plaintiffs’
assertion that the APA conferred jurisdiction to consider this
claim. “Although the APA may state the scope of review, 5 U.S.C.
§ 706, FIFRA still provides the mechanism for obtaining judicial
review. Thus, the APA does not operate separately from FIFRA, but
instead as a part of FIFRA.” 882 F.2d at 1302-03. In this case,
the Wildlife Association's Sixth Claim for Relief fails for the
same reason. The Forest Service approved the timber sales acting
under the National Forest Management Act (“NFMA”), 16 U.S.C. §§
1600 et seq. Jurisdiction to review the sales is conferred by
NFMA, not the APA. See Preferred Risk Mut. Ins. Co. v. United
States, 86 F.3d 789, 792 (8th Cir. 1996).

This case differs from Defenders in one important respect. In
Defenders, EPA declined to take pesticide registration action under
the governing statute, FIFRA. Plaintiffs did not seek review of
that failure to act under FIFRA, no doubt because such a challenge
would be contrary to the general principle that “an agency’s

-7-
decision not to take enforcement action [is] presumed immune from
judicial review under [5 U.S.C.] § 701(a)(2).” Heckler v. Chaney,
470 U.S. 821, 832 (1985), followed in Lincoln v. Vigil, 508 U.S.
182, 192-93 (1993). Here, on the other hand, the timber sales are
final agency actions subject to judicial review under NFMA. One
issue in conducting that review is whether the Forest Service’s
actions under NFMA are arbitrary, capricious, or contrary to law
because the agency ignored or violated its obligations under MBTA.
The district court did not address this issue in denying
preliminary injunctive relief, perhaps because the Wildlife
Association did not squarely raise it. But the issue has been
raised on appeal and deserves our attention.

Congress passed MBTA in 1918 to implement a treaty between the
United States and Great Britain protecting migratory birds in North
America. See generally Missouri v. Holland, 252 U.S. 416 (1920).
MBTA makes it unlawful, “except as permitted by regulations,” to
pursue, hunt, take, capture, kill, possess, sell, barter, purchase,
ship, export, import, transport, or carry specified migratory birds
or their nests or eggs. 16 U.S.C. §§ 703, 704. MBTA is a criminal
statute: “any person, association, partnership, or corporation”
who violates MBTA or its regulations is guilty of a misdemeanor and
may be fined up to $500 and imprisoned for up to six months; those
who knowingly take or sell migratory birds in violation of the Act
are guilty of a felony. 16 U.S.C. § 707(a), (b).

In this case, the Wildlife Association alleges, and the Forest
Service concedes, that logging under the timber sales will disrupt
nesting migratory birds, killing some. The Wildlife Association
argues that the sales therefore violate MBTA’s absolute prohibition
against killing or taking nesting birds unless the Forest Service

-8-
obtains a permit under the Fish and Wildlife Service regulations
implementing MBTA. We disagree.

Initially, we note that MBTA's plain language prohibits
conduct directed at migratory birds -- "pursue, hunt, take,
capture, kill, possess," and so forth. The government argues that
the statute imposes "strict liability" on violators, except for
felony violations, which under a recent amendment must be done
"knowingly." Strict liability may be appropriate when dealing with
hunters and poachers. But it would stretch this 1918 statute far
beyond the bounds of reason to construe it as an absolute criminal
prohibition on conduct, such as timber harvesting, that indirectly
results in the death of migratory birds. Thus, we agree with the
Ninth Circuit that the ambiguous terms "take" and "kill" in 16
U.S.C. § 703 mean "physical conduct of the sort engaged in by
hunters and poachers, conduct which was undoubtedly a concern at
the time of the statute's enactment in 1918." Seattle Audubon
Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. 1991); accord Mahler v.
United States Forest Serv., 927 F. Supp. 1559, 1573-74 (S.D. Ind.
1996); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F.
Supp. 1502, 1509-10 (D. Or. 1991).

In addition, we agree with the Forest Service that MBTA does
not appear to apply to the actions of federal government agencies.
MBTA sanctions apply to "any person, association, partnership, or
corporation," 16 U.S.C. § 707(a). "Since, in common usage, the
term 'person' does not include the sovereign, statutes employing
the phrase are ordinarily construed to exclude it." United States
v. Cooper Corp., 312 U.S. 600, 604 (1941); see Will v. Michigan
Dept. of State Police, 491 U.S. 58, 64 (1989). The Wildlife
Association argues that MBTA must apply to federal agencies if our
Nation is to meet its obligations under the 1916 treaty. But the

-9-
government's duty to obey the treaty arises from the treaty itself;
the statute extends that duty to private persons. This is
confirmed by Article VIII of the treaty: “The High Contracting
Powers agree themselves to take, or propose to their respective
appropriate law-making bodies, the necessary measures for insuring
the execution of the present Convention.” CONVENTION BETWEEN THE UNITED
STATES & GREAT BRITAIN FOR THE PROTECTION OF MIGRATORY BIRDS, Art. VIII, 39
Stat. 1702, 1704 (1916) (emphasis added).

Our conclusions about the apparent scope of MBTA are
necessarily tentative because we lack the views of the Fish and
Wildlife Service, the agency charged with administering and
enforcing that statute. This regulatory vacuum exposes the most
serious flaw in the Wildlife Association's claim that the timber
sales violate MBTA. The Wildlife Association argues that the
Forest Service must apply for and obtain the special purpose permit
described in the Fish and Wildlife Service's MBTA regulations. But
the permitting regulation, though potentially broad, does not on
its face apply to the Forest Service or other federal agencies.
See 50 C.F.R. § 21.27. The Wildlife Association has no authority
suggesting that the Fish and Wildlife Service generally requires
the Forest Service to obtain this permit for its timber sales. Nor
has the Fish and Wildlife Service expressed that view in this
proceeding, before either the agency or the reviewing courts, for
example, by seeking to intervene or submitting a brief amicus
curiae.

In substance, the Wildlife Association urges this court to
enjoin timber sales because the Forest Service did not obtain a
permit that the Fish and Wildlife Service does not require. Thus,
the Wildlife Association's real dispute is with the Fish and
Wildlife Service, for that agency’s failure to enforce MBTA against

-10-
Forest Service timber sales in the manner the Wildlife Association
desires. But the Wildlife Association has not asserted that claim,
which would run afoul of the Heckler v. Chaney presumption that
agency failure to take enforcement action is not subject to APA
review. Whatever the reason the Fish and Wildlife Service does not
require the Forest Service to obtain MBTA permits, this enforcement
policy is committed to agency discretion and is not a proper
subject of judicial review.

For the foregoing reasons, the district court's orders of
April 8, 1996, and July 29, 1996, denying the Wildlife
Association’s motions for a preliminary injunction are affirmed.
Because the reasons for denying injunctive relief under MBTA are
inextricably intertwined with the district court's August 5, 1996,
order dismissing the Wildlife Association's Sixth Claim for Relief,
we have jurisdiction to consider the Wildlife Association's
interlocutory appeal of that order, and it too is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

-11-