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.
21
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
23
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.
24
Sierra Club v. Espy
Combined Opinion