Sierra Club v. Espy

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-5050

SIERRA CLUB, ET AL.,
Plaintiffs-Appellees,

versus

MIKE ESPY, in his official
capacity as Secretary of
Agriculture, ET AL.,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Texas

(November 15, 1994)

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The district court issued a preliminary injunction barring the

Forest Service from conducting even-aged management in any of the

four Texas national forests. The injunction was based on the

district court's finding of probable success on plaintiffs' claims

under two statutes: the National Forest Management Act, 16 U.S.C.

§§ 1600-1614, and the National Environmental Policy Act, 42 U.S.C.

§§ 4321-4347. The government and the timber industry intervenors

bring this interlocutory appeal challenging the district court's

order.

We disagree with the district court's insistence that NFMA

restricts even-aged management to exceptional circumstances. We
are persuaded that the district court erected too high a barrier to

even-aged management. The standard that even-aged management may

be used only in exceptional circumstances goes to the heart of the

finding by the district court of a likelihood of success on the

merits and upsets the delicate balance struck by Congress between

friends and foes of this harvesting method. We must vacate the

preliminary injunction and remand.

I.

A.

The Forest Service of the Department of Agriculture is charged

with administering the resources of this country's national forests

"for outdoor recreation, range, timber, watershed, and wildlife and

fish purposes." Multiple-Use Sustained-Yield Act of 1960, 16

U.S.C. § 528. The principles of MUSYA were expressly incorporated

into the statutory and regulatory scheme of NFMA. The pressures to

enact NFMA came from many sources. On the one hand, there was

increasing national concern over the Forest Service's use of

clearcutting. On the other hand, Congress felt it necessary to

counteract a Fourth Circuit decision which strictly construed the

Organic Act of 1897 to effectively prohibit the practice of

clearcutting in the national forests. See West Va. Div. of the

Izaak Walton League of Am., Inc. v. Butz, 522 F.2d 945 (4th Cir.

1975) (the Monongahela decision). The result was a compromise

expressed in a statute repealing the portion of the Organic Act

interpreted in the Monongahela decision, Pub. L. No. 94-588, § 13,

2
1976 U.S.C.C.A.N. (90 Stat.) 2949, 2958, yet imposing new

procedural and substantive restraints on the Forest Service.

Specifically, NFMA sets forth requirements for Land and

Resource Management Plans under which the national forests are

managed. The national forests are divided into management units,

see 36 C.F.R. § 200.2, and the Forest Service must prepare an LRMP

for each unit. An LRMP must "provide for multiple use and

sustained yield of the products and services obtained [from units

of the National Forest System] . . ., and, in particular, include

coordination of outdoor recreation, range, timber, watershed,

wildlife and fish, and wilderness . . . ." 16 U.S.C. § 1604(e)(1).

Once an LRMP is in place, the Forest Service can decide to sell

timber only after analyzing timber management alternatives and the

sale's particular environmental consequences. Site-specific

analysis, sometimes referred to as compartment-level analysis, must

be consistent with the LRMP. Id. § 1604(i).

Broadly stated, there are two ways to manage a forest's timber

resources. The first method is even-aged management. See 36

C.F.R. § 219.3. Even-aged management includes clearcutting, where

all the trees are cut down; seed tree cutting, where most of the

trees are cut down, leaving only a few to naturally seed the cut

area; and shelterwood cutting, where about double the number of

trees are left standing as would be under the seed tree method.

Even under the least intrusive even-aged management technique,

shelterwood cutting, only about sixteen trees per acre remain after

a cut. Moreover, under seed tree cutting, the older trees left to

3
naturally seed the cut area are later removed. Even-aged

management results in stands of trees that are essentially the same

age. Before choosing to clearcut a portion of the forest, the

Forest Service must find that clearcutting is the "optimum method"

for achieving the objectives and requirements of the LRMP. 16

U.S.C. § 1604(g)(3)(F)(i). Similarly, before choosing to seed tree

cut or shelterwood cut, the Forest Service must find that those

methods are "appropriate" for achieving the objectives and

requirements of the LRMP. Id.

The second method of timber resource management is uneven-aged

management, also known as selection management. See 36 C.F.R.

§ 219.3. Uneven-aged management encompasses both single tree

selection and group selection. Group selection involves cutting

small patches of trees, while single tree selection involves

selecting particular trees for cutting. Uneven-aged management

maintains a continuous high-forest cover, and the stands are

characterized by a number of differently aged trees.

The process prescribed by NFMA is intertwined with NEPA. NEPA

requires federal agencies to prepare a detailed Environmental

Impact Statement to be included in every major federal action

significantly affecting the quality of the human environment. 42

U.S.C. § 4332(2)(C). NEPA is, of course, a procedural statute,

mandating a process rather than a result. Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 350 (1989); see Sabine River

Auth. v. United States Dep't of Interior, 951 F.2d 669, 676 (5th

Cir.), cert. denied, 113 S. Ct. 75 (1992). NEPA regulations are

4
made applicable to NFMA by 16 U.S.C. § 1604(g)(1). By regulation,

the Forest Service has committed to prepare an EIS before adopting

an LRMP. 36 C.F.R. § 219.10(b). Once the Forest Service has

adopted an LRMP, its specific actions in implementing that plan

will typically be undertaken after preparation of a site-specific

Environmental Assessment. An EA is a concise document that briefly

discusses the relevant issues and either reaches a conclusion that

preparation of a site-specific EIS is necessary or concludes with

a finding of no significant impact, in which case preparation of an

EIS is unnecessary. 40 C.F.R. § 1508.9. A finding of no

significant impact is warranted when the Forest Service finds the

action is one anticipated in the EIS, consistent with the EIS, and

sufficiently explored by the EIS.

Finally, an EA may be tiered to an existing and broader EIS.

Id. § 1508.28. "Tiering refers to the coverage of general matters

in broader environmental impact statements . . . with subsequent

narrower statements or environmental analyses . . . incorporating

by reference the general discussions and concentrating solely on

the issues specific to the statement subsequently prepared." Id.

The EAs in this case are tiered to the existing EIS.

B.

On May 20, 1987, the Forest Service's Regional Forester signed

the Record of Decision approving the LRMP and the Final EIS for the

Texas national forests. The FEIS examined thirteen alternatives

for managing the forests. Two of the alternatives provided for

uneven-aged management of the forests' timber resources and the

5
remainder for even-aged management. The Forest Service selected an

alternative that provided for even-aged management. On June 8,

1987, the Texas Committee on Natural Resources, TCONR, filed an

administrative appeal with the Forest Service challenging both the

FEIS and the LRMP. TCONR also requested a stay of all timber

operations under the even-aged management system.

Meanwhile, litigation was pending in federal court. TCONR,

the Sierra Club, and the Wilderness Society had sued the Forest

Service claiming, inter alia, that the Forest Service's activities

violated the Endangered Species Act. The district court agreed,

finding that even-aged management in the Texas forests jeopardized

the red-cockaded woodpecker, an endangered species. Sierra Club v.

Lyng, 694 F. Supp. 1260, 1272-73 (E.D. Tex. 1988). The district

court permanently enjoined even-aged management in the affected

areas. Id. at 1278. The government appealed the district court's

order, and we affirmed in relevant part. Sierra Club v. Yeutter,

926 F.2d 429, 440 (5th Cir. 1991).

The permanent injunction affected management of approximately

one-third of Texas forests. On April 1, 1989, the reviewing

officer hearing TCONR's administrative appeal of the FEIS and the

LRMP decided not to rule on the merits of TCONR's challenge, but

instead remanded the LRMP for reanalysis.1 The reviewing officer

1
The process of revising the LRMP and preparing a new EIS
began in October, 1990. On September 15, 1994, the Forest Service
released a Draft EIS together with a Draft Revised Forest Plan.
The Forest Service anticipates that the Final LRMP and EIS will be
released in October, 1995.

6
reasoned that a change affecting one-third of Texas forests affects

the level of goods and services that the forests can supply under

the current LRMP. Forest Service Decision at 4. The reviewing

officer promulgated interim guidelines to govern management of the

forests until the Forest Service issued a new LRMP. Id. at 5.

These guidelines provide that the appropriate timber management

system is to be determined on a site-specific basis. Id.

Specifically, even-aged management can be used if the Forest

Service determines it to be appropriate to meet the "objectives and

requirements" of the existing LRMP. Id. The Forest Service,

however, must consider uneven-aged management alternatives during

site-specific analysis. Id. at 6. In sum, although the LRMP was

remanded for reanalysis, during the interim its "objectives and

requirements" remain controlling on compartment-level decisions.

Frustrated by the Forest Service's refusal to rule on the

merits of its administrative claim, TCONR, now joined by the Sierra

Club and the Wilderness Society (collectively TCONR), turned to

federal court to present its challenge to the FEIS and the LRMP.

TCONR sought a declaration that the Forest Service's even-aged

management practices did not comply with NEPA or NFMA and an

injunction against all even-aged management practices. The

government moved for summary judgment on TCONR's even-aged claims.

The court referred the matter to a magistrate judge. The

magistrate found that since the Forest Service had not ruled on the

merits of TCONR's claims, she was constrained by the exhaustion-of-

administrative-remedies doctrine to presume the validity of the

7
LRMP and the FEIS: "In that they are barred from directly

attacking the 1987 documents, Plaintiffs are also barred from

mounting an indirect attack by demonstrating that the EAs used to

justify the proposed sales are invalid merely because they are

based on the allegedly invalid 1987 documents." Report and

Recommendation of the United States Magistrate Judge 3-4. The

magistrate found the EAs in compliance with both NEPA and NFMA, and

on December 11, 1992, issued a report recommending that the

district court grant the government's motion for summary judgment.

On January 6, 1993, TCONR filed an "Urgent Motion for

Injunction," seeking to enjoin the Forest Service's even-aged

management practices, including twelve imminent timber sales.

TCONR later dropped the number of challenged sales to nine. The

district court, rejecting the reasoning of the magistrate judge,

denied the government's motion for summary judgment and issued a

preliminary injunction prohibiting even-aged management in any of

the four Texas forests. Sierra Club v. Espy, 822 F. Supp. 356,

369-70 (E.D. Tex. 1993).

Like the magistrate judge, the district court first addressed

the administrative exhaustion requirement. Unlike the magistrate,

however, the court treated the exhaustion requirement as waived,

recognizing that TCONR could not force the Forest Service to hear

the merits of its appeal of the LRMP and the FEIS. This waiver,

therefore, presented the district court with the contention that

the EAs were invalid because the FEIS and the LRMP were invalid.

The court, however, did not explore the adequacy of the LRMP or the

8
FEIS; instead, it focused on whether the EAs themselves complied

with NEPA and NFMA. The court found they did not. The court

reasoned that TCONR was likely to succeed on its NFMA claim because

the Forest Service employed even-aged management as the "rule"

when, in fact, NFMA "contemplates that even-aged management

techniques will be used only in exceptional circumstances." Id. at

363-64. The court also held that TCONR was likely to succeed on

its NEPA claims. Specifically, the court found that TCONR likely

would demonstrate that the Forest Service had "'swept' some

significant environmental considerations and criticisms of its

scheduled even-aged management actions 'under the rug,' or failed

to give good faith, meaningful consideration to foreseeable,

statutorily important, environmental consequences of its planned

even-aged logging activities." Id. at 368.

When timber purchaser representatives Texas Forestry

Association and Southern Timber Purchasers Council (collectively

timber intervenors) learned of the preliminary injunction, they

moved to intervene. The district court denied the motion, but we

reversed. Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994). The

government and the timber intervenors joined in this appeal of the

preliminary injunction.

II.

We first determine the precise scope of the injunction. The

district court's order appears to enjoin the Forest Service's

entire even-aged management agenda; however, it is clear that the

9
court had before it only the nine pending timber sales. TCONR

concedes that the injunction, properly read, applies only to the

nine sales. In similar vein, we restrict our analysis to the nine

sales.

III.

In order to obtain a preliminary injunction, the moving party

must establish, among other things, a substantial likelihood of

success on the merits. Lakedreams v. Taylor, 932 F.2d 1103, 1107

(5th Cir. 1991). Here, the district court found that TCONR would

likely succeed on its claims that the EAs violated both NEPA and

NFMA. The court, however, did not discuss the validity of either

the FEIS or the LRMP, to which the EAs are tiered. We similarly

focus our analysis on the narrow issues presented by the EAs.

In determining whether the Forest Service complied with NFMA,

we ask if its actions were "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5 U.S.C.

§ 706(2)(A). "[T]he starting point in every case involving

construction of a statute is the language itself." Greyhound Corp.

v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978) (internal

quotation marks omitted). We must give effect to the unambiguously

stated intention of Congress. "In determining the meaning of the

statute, we look not only to the particular statutory language, but

to the design of the statute as a whole and to its object and

policy." Crandon v. United States, 494 U.S. 152, 158 (1990).

However, an agency's construction of an ambiguous statute it

10
administers will be upheld so long as that construction is

reasonable. See Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-

44 (1984).

IV.

A.

The government challenges the district court's interpretation

of NFMA. Specifically, the government argues that the district

court erred when it held that even-aged logging practices could

only be used in exceptional circumstances. To hold otherwise, the

district court reasoned, would violate the statutory provision that

requires the Forest Service to use even-aged management only where

"such cuts are carried out in a manner consistent with the

protection of soil, watershed, fish, wildlife, recreation, and

esthetic resources, and the regeneration of the timber resource."

16 U.S.C. § 1604(g)(3)(F)(v) (emphasis added); accord 36 C.F.R.

§ 219.27(c)(6). This duty to protect, the court held, "reflects

the truism that the monoculture created by clearcutting and

resultant even-aged management techniques is contrary to NFMA-

mandated bio-diversity." 822 F. Supp. at 364 (citing 16 U.S.C.

§ 1604(g)(3)(B)).

The district court's holding that NFMA requires even-aged

management be used only in exceptional circumstances is in tension

with Texas Comm. on Natural Resources v. Bergland, 573 F.2d 201

(5th Cir.), cert. denied, 439 U.S. 966 (1978) (TCONR I). There we

found that Congress, after hearing testimony on both sides of the

11
clearcutting issue, struck a delicate balance between the benefits

of clearcutting and the benefits of preserving the ecosystems and

scenic quality of natural forests. Id. at 210. Specifically, NFMA

"was an effort to place the initial technical, management

responsibility for the application of NFMA guidelines on the

responsible government agency, in this case the Forest Service.

The NFMA is a set of outer boundaries within which the Forest

Service must work." Id. We then cautioned the Forest Service that

clearcutting could not be justified merely on the basis that it

provided the greatest dollar return per unit output; "[r]ather[,]

clearcutting must be used only where it is essential to accomplish

the relevant forest management objectives." Id. at 212. We

concluded by noting that "[a] decision to pursue even-aged

management as the over-all management plan under the NFMA is

subject to the narrow arbitrary and capricious standard of review."

Id.

TCONR I recognized that the Forest Service may use even-aged

management as an overall management strategy. That even-aged

management must be the optimum or appropriate method to accomplish

the objectives and requirements set forth in an LRMP does not mean

that even-aged management is the exception to a rule that

purportedly favors selection management. Similarly, the

requirement that even-aged logging protect forest resources does

not in itself limit its use. Rather, these provisions mean that

the Forest Service must proceed cautiously in implementing an even-

aged management alternative and only after a close examination of

12
the effects that such management will have on other forest

resources.

The conclusion that even-aged management is not the

"exception" to the "rule" of uneven-aged management is supported by

NFMA's legislative history. On three separate occasions, Congress

rejected amendments that would have made uneven-aged management the

preferred forest management technique. The first occurred during

the joint markup sessions of the Senate Committees on Agriculture

and Forestry, and on Interior and Insular Affairs. The language

rejected by the Committees appeared in a bill introduced by Senator

Randolph. The proposed bill would have required that "uneven-aged

forest management primarily implemented by selection cutting shall

be used in the eastern mixed hardwood forests." S. 2926, 94th

Cong., 2d Sess. § 7(a) (1976). Senator Randolph offered this

language as an amendment to the Senate bill considered by the

Committees as the markup vehicle. Hearing on S. 3091, As Amended,

A Bill to Amend the Forest and Rangeland and Renewable Resources

Planning Act of 1974, and for Other Purposes, 94th Cong., 2d Sess.

71-76 (1976). The Committees rejected that amendment largely based

on the advice of Forest Service Chief McGuire and another

professional forester that even-aged management was often

environmentally preferable to uneven-aged management. Following

his defeat at the committee level, Senator Randolph offered an

amendment on the Senate floor to create the same preference for

uneven-aged management. The amendment was tabled and thereby

defeated. See 122 Cong. Rec. 27625-27 (Aug. 25, 1976). Finally,

13
during the markup sessions before the House Committee on

Agriculture, the Committee rejected an amendment offered by

Representative Brown, which would have mandated that uneven-aged

management dominate eastern national forests. House Comm. on

Agric., 94th Cong., 2d Sess., Business Meetings on National Forest

Management Act of 1976, at 205-07 (Comm. Print 1976).

TCONR points out that since the Randolph amendments would have

required the use of uneven-aged management, they are not relevant

on the issue of whether uneven-aged management is preferred. While

TCONR correctly distinguishes the district court's holding from

Senator Randolph's attempts to bar even-aged management, TCONR

fails to persuade on the issue of whether rejection of

congressional efforts to restrict even-aged logging sends a

legislative message. That no amendment was specifically offered

and rejected that proposed a preference for uneven-aged logging

does not change the fact that legislators were loath to deprive the

Forest Service of the option to select even-aged management. The

final outcome of NFMA reflects those concerns. See TCONR I, 573

F.2d at 210 (Congress struck an "extremely delicate balance"

between the benefits of clearcutting and the benefits of preserving

the ecosystems and scenic quality of natural forests).

Thus, 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. To be sure, these

restrictions reflect a congressional wariness towards even-aged

14
management, constraining resort to its use. The sluicing effect of

the required inquiries might be described as making a decision to

employ even-aged management more difficult. However, it is not a

description or characterization of the effects of the required

decisional process that we face. The district court used

"exceptional" as a decisional standard--and hence it upset the

balance struck. In fairness, this distinction was far more subtle

in the presentation to the district court.

B.

The next issue is whether the Forest Service's timber sale EAs

meet NFMA's substantive requirements. The district court held that

since the EAs failed to protect forest diversity and resources,

TCONR was likely to succeed on its claim that the Forest Service

had impermissibly exceeded the outer boundaries of NFMA. The

district court found the term "protection" unambiguous and held

that the Forest Service's failure to consider ecosystems of old

growth forests and its express acknowledgement of diminution of

some inner forest species as a result of even-aged management meant

that the forest resources were not adequately protected. The

government objects to the district court's interpretation which, it

argues, affords "something akin to absolute, individualized

protection to whatever wildlife are presently inhabiting any given

stand of timber."

TCONR does not dispute the government's assertion that NFMA

does not mandate status quo protection; rather, it argues that

allowing the Forest Service to define the level of protection it

15
affords to forest resources would "obliterate the statute's

substantive 'outer boundaries.'" However, TCONR does no more than

urge this court to provide a reasonable interpretation of the

protective language used by Congress "further illuminated by

recourse to the legislative history."2 This argument does little

to lend support to TCONR's contention that we should ignore the

Forest Service's interpretation.

The 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. Maintenance of a

pristine environment where no species' numbers are threatened runs

counter to the notion that NFMA contemplates both even- and uneven-

aged timber management. Indeed, NFMA regulations anticipate the

possibility of change and provide that "[r]eductions in diversity

of plant and animal communities and tree species from that which

would be expected in a natural forest, or from that similar to the

existing diversity in the planning area, may be prescribed only

where needed to meet overall multiple-use objectives." 36 C.F.R.

§ 219.27(g); see also 16 U.S.C. § 1604(g)(3)(C) (LRMP must ensure

research and evaluation of effects of each management system to

assure no "substantial and permanent impairment" of land

productivity) (emphasis added); 16 U.S.C. § 1604(g)(3)(E)(i) (LRMP

must provide that timber be harvested only where "soil, slope, or

2
TCONR also suggests, without citing any authority, that
the standard for protection of natural resources is "as they would
exist without unreasonable impairment by humans." The language of
the statute does not suggest this interpretation, and we do not
adopt it.

16
other watershed conditions will not be irreversibly damaged")

(emphasis added). 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--

here, the Forest Service.

The Forest Service's discretion, however, is not unbridled.

The regulations implementing 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. 36 C.F.R. § 219.19. In addition, the statute

requires the Forest Service to "provide for diversity of plant and

animal communities." 16 U.S.C. § 1604(g)(3)(B). This diversity

mandate itself has been the subject of considerable debate. See

Final Report of the Committee of Scientists, 44 Fed. Reg. 26599,

26608-09 (1979); Charles F. Wilkinson & H. Michael Anderson, Land

and Resource Planning in the National Forests, 64 Or. L. Rev. 1,

290-96 (1985); see also Krichbaum v. Kelley, 844 F. Supp. 1107,

1114-15 (W.D. Va. 1994); Sierra Club v. Marita, 843 F. Supp. 1526,

1532-33 (E.D. Wis. 1994). The regulations define diversity as

"[t]he distribution and abundance of different plant and animal

communities and species within the area covered by a land and

resource management plan." 36 C.F.R. § 219.3. At least one court

has recognized the difficulty in requiring a precise level of

diversity: "The agency's judgment in assessing issues requiring a

high level of technical expertise, such as diversity, must . . . be

17
accorded the considerable respect that matters within the agency's

expertise deserve." Sierra Club v. Robertson, 810 F. Supp. 1021,

1028 (W.D. Ark. 1992), aff'd in part, vacated in part on other

grounds, 28 F.3d 753 (8th Cir. 1994).

We need not take this opportunity to define precisely the

"outer boundaries" of NFMA's protection and diversity requirements,

because we find that the timber sale EAs fall clearly within such

boundaries. Each EA considered no action, even-aged management,

and uneven-aged management alternatives. Although it is true that

when all nine sales are taken together even-aged management emerges

as the preferred alternative,3 each sale varies as to the extent of

its usage. For instance, in Compartment 32, forty-six percent of

the acres scheduled to be harvested will be harvested using

selection management. The remaining acres will be harvested by

seed tree cutting. In Compartment 98, twenty-three percent of the

acres scheduled to be harvested will be harvested using selection

cutting. The remaining acres will be harvested using the seed tree

method. Finally, in Compartment 57, the Forest Service chose to

3
The following chart details, by compartment, the number
of acres to be cut and the timber method employed.

| Even-aged Management | Uneven-aged
Compartment | Seed tree Clearcut | Management
| | |
32 | 120 | | 101
51 | 222 | |
57 | | | 60
66 | 165 | |
79 | 193 | |
93 | 275 | 27 |
98 | 143 | | 43
110 | 93 | 14 |
113 | 70 | |

18
harvest sixty acres of timber using group selection, an uneven-aged

management method. Even this limited interspersing of even- and

uneven-aged management helps assure a mix of early and late

successional habitats.

Moreover, the EAs do not ignore old growth ecosystems. The

Compartment 32 EA, for example, discusses the old growth component

of the forest. Compartment 32 contains 964 acres of federal land

and approximately 2,000 acres of privately owned land. The EA

notes that no stands in the compartment were selected for old

growth designation because of the fragmented ownership of the

compartment. This determination cannot be said to be arbitrary or

capricious.

The EAs also address wildlife habitat concerns. Each EA

states that all existing wildlife populations will remain at viable

levels, no matter which timber management alternative the Forest

Service selects. See 36 C.F.R. § 219.19. They also each list the

management indicator species identified in the LRMP and in Appendix

D of the FEIS. MIS are representative species used to monitor the

overall effects of a timber management alternative. The Forest

Service selects MIS based on their susceptibility to changes in

timber management. Each EA sets a goal for maintenance of MIS. In

Compartment 93, for instance, the Forest Service's goal is to

increase the numbers of eastern wild turkey and red-cockaded

woodpecker. The Service also must attempt to maintain current

levels of white-tailed deer, gray squirrels, fox squirrels, and to

maintain viability of pileated woodpeckers, yellow-breasted chats,

19
eastern bluebirds, and six-lined racerunners. Finally, the Forest

Service must attempt to maintain or increase the numbers of

bobwhite quail.

Given these goals, the Forest Service's selection of an even-

aged management alternative in Compartment 93 cannot be said to be

arbitrary or capricious. Under the selected alternative, the

numbers of fox squirrel and pileated woodpecker decrease. However,

other species would increase; namely, white-tailed deer, eastern

wild turkey, red-cockaded woodpecker, yellow-breasted chat, eastern

bluebird, bobwhite quail, and the six-lined racerunner. Under the

selection management alternative, only the pileated woodpecker

would increase in numbers. All other listed MIS would decrease,

though all existing species would be maintained at viable

population levels.

The Forest Service is charged with managing the ever-changing

resources of the national forests. In the absence of forest

management, trees would grow older, the character of plant and

animal diversity would change, and some wildlife species would

decline in numbers. Harvesting trees using even-aged management

techniques necessarily results in younger stands. Wildlife

dependent on younger stands would flourish at the expense of

species dependent on older growth forests. Harvesting trees using

uneven-aged management techniques results in denser forests.

Wildlife dependant on such cover would flourish at the expense of

wildlife dependent on forest clearings. These forest dynamics make

clear that protecting forest resources involves making trade-offs.

20
We may believe that protection afforded by selection management is

more desirable than that afforded by even-aged management; however,

in the nine sales before the court, the agency's determination as

to the appropriate level of protection was not unreasonable. We

therefore defer to the agency's determination. See Chevron, 467

U.S. at 843 & n.11.

V.

The district court also held that TCONR would likely succeed

on the merits of its NEPA claim. Specifically, the court held that

the EAs did not take a "hard look" at all the forest management

alternatives or their environmental consequences.

This court recently reviewed NEPA's requirements in Sabine

River Auth. v. United States Dep't of Interior, 951 F.2d 669 (5th

Cir.), cert. denied, 113 S. Ct. 75 (1992). There we held that NEPA

"is a procedural statute that . . . . does not command the agency

to favor an environmentally preferable course of action, only that

it make its decision to proceed with the action after taking a

'hard look at environmental consequences.'" Id. at 676 (quoting

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989)). Notably, Sabine recognized that while other statutes may

impose substantive requirements on an agency, "NEPA merely

prohibits uninformed -- rather than unwise -- agency action." 951

F.2d at 676 (internal quotation marks omitted).

An EIS must contain "a detailed statement of the expected

adverse environmental consequences of an action, the resource

commitments involved in it, and the alternatives to it." Kleppe v.

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Sierra Club, 427 U.S. 390, 401-02 (1976). An EA, on the other

hand, is prepared in order to determine whether an EIS is required.

Sabine, 951 F.2d at 677. An EA is a "rough-cut, low-budget

environmental impact statement" intended to determine whether

environmental effects are significant enough to warrant preparation

of an EIS. Id. (internal quotation marks omitted). An EA must

"include brief discussions of the need for the proposal, of

alternatives . . ., of the environmental impacts of the proposed

action and alternatives, and a listing of agencies and persons

consulted." 40 C.F.R. § 1508.9(b).

While an EA must contain a discussion of alternatives, the

range of alternatives that the Forest Service must consider

"decreases as the environmental impact of the proposed action

becomes less and less substantial." Olmsted Citizens for a Better

Community v. United States, 793 F.2d 201, 208 (8th Cir. 1986)

(upholding consideration of a limited range of alternatives when a

finding of no significant environmental impact was made). Notably,

the district court in Sabine pointed out that "[a]lthough

consideration of some range of alternatives is essential to any

environmental assessment, it makes little sense to fault an agency

for failing to consider more environmentally sound alternatives to

a project which it has properly determined, through its decision

not to file an impact statement, will have no significant

environmental effects anyway." Sabine River Auth. v. United States

Dep't of Interior, 745 F. Supp. 388, 399 (E.D. Tex. 1990) (internal

quotation marks omitted), aff'd, 951 F.2d 669 (5th Cir.), cert.

22
denied, 113 S. Ct. 75 (1992). Accord Missouri Mining, Inc. v.

Interstate Commerce Comm'n, 33 F.3d 980, 984 (8th Cir. 1994); City

of New York v. United States Dep't of Transp., 715 F.2d 732, 744

(2d Cir. 1983), appeal dismissed, 465 U.S. 1055 (1984).

We disagree with the district court. As we see it, the EAs

prepared by the Forest Service for the nine timber sales appear

likely to satisfy NEPA's requirements. First, eight of the nine

EAs consider four alternatives: a no action alternative, an

uneven-aged management alternative, and two even-aged management

alternatives. The ninth EA considers the four above alternatives

and an additional uneven-aged management alternative. The EAs also

discuss the need for the proposal, the agencies and persons

consulted, and the environmental effects of each alternative,

including the effects each alternative would have on wildlife,

vegetation, soils, water, air, recreation, and cultural resources.

The EAs examine the mitigating measures that would be taken with

each alternative, as well as the social and economic factors

affecting each alternative.

When evaluating whether an EA complies with NEPA, we must be

careful to avoid confusing NEPA's requirements for an EIS with

those for an EA. This case is unique because the LRMP has been

remanded for reanalysis and harvest-method decisions are to be made

on a compartment-level basis. However, this fact affects the NFMA

analysis more than the NEPA analysis. The EAs in this case remain

"rough-cut, low-budget" documents that are tiered to the FEIS and

that incorporate the still-relevant objectives and requirements of

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the LRMP. When examined under this light, we conclude that the EAs

adequately address the need for the proposal, the alternatives, the

environmental consequences, and the agencies and persons consulted.

VI.

We conclude that the district court erred in granting the

preliminary injunction. We VACATE AND REMAND.

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