The Sierra Club, Texas Committee on Natural Resources, and The Wilderness Society

(the "Plaintiffs") challenged various aspects of the U.S. Forest Service (FS) management

of the National Forests and Grasslands of Texas. Standards for compliance are in the

National Forest Management Act (NFMA) and related regulations. Administrators of the

USFS and USDA are the "Defendants," chiefly represented by Daniel Glickman, USDA

Secretary. The Southern Timber Purchasers Council and the Texas Forestry Association

(the "Defendant-Intervenors" or "Timber Intervenors," TIs) intervened and became parties

to the lawsuit. The issues were brought to trial before U.S. District Court Judge Richard

A. Schell of Beaumont in April 1996; a judgement and opinion were issued 14 August 1997.

"The broad issue before the court [has been] whether the Forest Service is complying

with the NFMA and related regulations, [which] generally require: (1) diversity of plant

and animal communities as well as tree species, (2) protection of key resources, and (3)

inventorying and monitoring for key resources, diversity, and effects of management

activities. Considering the evidence adduced at trial, legal argument of counsel, and the

parties' respective proposed findings of fact and conclusions of law, the court is of the

opinion that the Forest Service has stepped outside its discretion and acted arbitrarily

and capriciously with respect to (1) protecting the key resources of soil and watershed

and (2) inventorying and monitoring wildlife resources, forest diversity, and whether the

Forest Service is meeting its objectives and adhering to standards and guidelines."

"Federal Defendants' past and continuing violations of the NFMA and regulations have

caused and continue to cause irreparable injury to the soil and watershed resources. The

continuing violations of the inventorying and monitoring requirements are also causing

irreparable injury because population baselines of wildlife that could be established are

forever lost as time passes and the FS fails to collect data. The present failure to collect

this data forecloses any possibility that the FS can (1) ensure that viable populations of

vertebrate species are well distributed, (2) evaluate diversity in its prior and present

condition, and (3) determine whether the FS is meeting objectives and adhering to

standards and guidelines."

"Accordingly the court [has enjoined] the Federal Defendants and Timber Intervenors

from engaging in timber harvesting on the National Forests in Texas under any method

(even-aged or otherwise) unless such harvesting is for insect or disease control, fire

protection, or any other reason necessary to maintain the health of the forest land." The

injunction is in effect "until such time that the Forest Service (1) complies with the

NFMA and regulations with respect to the implementation of past timber sales and (2)

assures the court that any future timber harvesting will be in compliance 'on-the-ground'

[with the NFMA and related regulations]."

"The National Forest Management Act [1976] was enacted as a direct result of

congressional concern for FS clearcutting practices and the dominant role timber

production has historically played in FS policies. Congress was concerned that, if left

to its own essentially unbridled devices, the FS would manage the national forests as mere

monocultural 'tree farms.' Procedurally, the Act requires the FS to develop Land and

Resource Management Plans for the national forests. This formal planning process was

designed to curtail agency discretion and to ensure forest preservation and productivity.

Substantively, the Act imposes extensive limitations on timber harvesting by restricting

the use of clearcutting to situations in which clearcutting is the optimum method for

harvesting" (quoted here, but not by Judge Schell, from a decision by the 6th Circuit

Court of Appeals, Sierra Club v. Jack Ward Thomas et al., No. 94-3407, 1997).

The management plans prepared by the Forest Service for the National Forest &

Grasslands in Texas are referred to as LRMPs (Land and Resource Management Plans).

The most recent one (1996) was prepared to supplant the 1987 LRMP. "In response to

administrative appeals and ongoing litigation, in 1988 the Chief of the Forest Service

remanded the 1987 Forest Plan to consider the effects of changes in red-cockaded wood-

pecker (RCW) management and other issues. ... [The Revised Plan of 1996] changes and

clarifies management direction making it more usable by managers and the interesting and

affected individuals working as partners and owners of these public lands" (1996 LRMP,

p. 1).

The ruling is presented in a 3-page judgement and 72-page opinion. The opinion

provides a detailed and heavily documented discussion, divided into a number of sections:

Background, Jurisdiction, Standards of Review, Providing for Diversity, Protecting Key

Resources, Inventorying and Monitoring, Declaratory and Injunctive Relief, and Post

Judgement Matters. In order to make the larger part of this legal investigation and

decision more accessible to the public, critical portions are presented here in a condensed

form. The organization of the opinion has been considerably modified, but almost all of

the wording remains that of Judge Schell and citations included by him. In the few places

where sentences or phrases have been added for continuity, the context is kept true to the

original document. Brief explanations of the National Forest Management Act and the two

most recent Management Plans for National Forest & Grasslands in Texas have been added

(above).

The entire document from Judge Schell (judgement and opinion) is available in several

formats on the internet at the home page of the U.S. District Court for the Eastern

District of Texas (http://www.txed.uscourts.gov).

"Timber Intervenors argue: 'It cannot be assumed that any NFMA violations that have

occurred in the past would be repeated under the more stringent environmental standards in

the [1996 National Forest Management Plan].' [Judge Schell comments:] Certainly, past

violations and the substantial and permanent damage caused by those violations is an

irreparable injury that cannot be cured by an injunction. Reoccurring violations, however,

can be the subject of an injunction. Whatever the FS's planning documents provide, the FS

must, in reality, comply with the NFMA and regulations on-the-ground. In reviewing the

evidence, the court found a wide gap between what the FS represents in its planning

documents and what it actually does on-the-ground."

TIs argue that the NFMA and related regulations do not provide sufficient legal

standards for a court to determine whether the FS is complying with the law on-the-ground.

TIs state: 'The NFMA and most of the regulations provide no law to apply to [Plaintiff's]

claims of on-the-ground violations.' TIs further argue that the NFMA merely requires the

FS to plan management activities rather than actually carry them out on the ground. ....

Under the TIs interpretations of the NFMA, no federal court could review the FS's

management of the National Forests and determine whether the FS is complying with the law

on the ground. Under their interpretation, review would be limited to the facial content

of the planning documents rather than actual, on-the-ground management activities. In

essence, TIs are proposing immunity for the FS actions on-the-ground.

The 5th Circuit Court [Sierra Club v. Espy, 1994] interpreted the NFMA and

regulations to actually require the FS to comply with law on-the-ground rather than merely

including in its planning documents standards and guidelines that are not enforceable or

for which there is no intention of enforcement. Moreover, ... this section [of the NFMA]

also mandates that the regulations set out guidelines for land management that actually

achieve the goals set out for the Forest Service.

Judge Schell included the following discussion and explanation of even-aged

management because of its central position in aspects of the present trial. Particularly,

it is pointed out that FS management practices, which have been primarily even-aged, are

central in causing damage to soil and water resources, reducing plant and animal species

in some areas of the forest, and creating areas of pine monoculture.

"Broadly stated, there are two ways to manage a forest's timber resources. The first

method is even-aged management. Even-aged management includes clear-cutting, 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 naturally seed the cut area are later removed. Even-aged management results in

stands of trees that are essentially the same age."

"The second method of timber resource management is uneven-aged management, also

known as selection management. Uneven-aged management encompasses both single tree

selection and group selection. Group selection involves cutting small patches of trees,

while single tree selection maintains a continuous high-forest cover, and the stands are

characterized by a number of differently aged trees."

The Forest Service in Texas began practicing even-aged management in the early 1960's

and it was the predominant system used to regenerate timber under the 1987 LRMP. Under

the 1987 LRMP, the even-aged management areas were, at times, referred to [by the FS] as

'pine plantations.' Over the last nine years (1987-1995), 9.5% of Texas National Forest

land deemed suitable for commercial harvest has been subject to even-aged harvesting and

salvage logging [with consequences similar to even-aged harvest]. The National Forests of

Texas consist primarily of internally even-aged stands distributed to comprise an uneven-

aged forest. According the TIs, "Even-aged management across the forests creates a mosaic

of tree stands of different ages, classes, and species mixes, thus providing for a mosaic

of different habitats."

The 5th Circuit Court of Appeals (Sierra Club vs. Espy, 1994) has noted that 'the

requirement that even-aged logging protect forest resources does not in itself limit its

use. Rather, these provisions [in the NFMA] mean that the FS must proceed cautiously in

implementing an even-aged management alternative and only after a close examination of the

effects that such management will have on other forest resources.' The 5th Circuit Court

'cautioned the FS that clear-cutting could not be justified merely on the basis that it

provided the greatest dollar return per unit output; rather, clearcutting must be used

only where it is essential to accomplish the relevant forest management objectives.'

Judge Schell signifies his awareness of the 5th Circuit Court ruling in noting that

by its judgement "[this] court is not suggesting that the FS is barred from using even-

aged management after the injunction is lifted. Whatever the costs of choosing even-aged

management over another system of management, Congress has determined that even-aged

management may be used by the FS under certain circumstances outlined in the NFMA."

Schell points out, however, that there is "a split between the circuits" on the issue

of even-aged management. In a 1997 case with issues overlapping the case at hand, the 6th

Circuit Court has determined that 'the NFMA contemplates that even-aged management

techniqes will be used only in exceptional circumstances' and that a FS management plan

requiring that 80% of all logging be even-aged violates the NFMA by failing to protect key

resources.

Regarding diversity in the National Forests, the Secretary of Agriculture has written:

"Management prescriptions, where appropriate and to the extent practicable, shall

preserve and enhance the diversity of plant and animal communities, including endemic

and desirable naturalized plant and animal species, so that it is at least as great as that

which would be expected in a natural forest and the diversity of tree species similar to

that existing in the planning area. Reductions in diversity of plant and animal

communities and trees 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. Planned type conversion shall be

justified by an analysis showing biological, economic, social, and environmental design

consequences, and the relation of such conversions to the process of natural change."

After extensively reviewing the legislative history of the NFMA and regulations, [a

recent analysis] makes a similar conclusion regarding part of it: "[This section of the

NFMA] has three complementary meanings in the context of timber planning. First, it is

a general mandate to bring timber production into balance with wildlife and ecological

values. Second, it limits the use of forest conversions to cases where the conversion can

be justified by its benefit to nontimber resources. Third, it prohibits monoculture. These

three elements, when taken together, require the FS to look at the forest as an ecological

whole and to ensure that, over time, the forest is not converted into a 'tree farm.'"

While the natural ecosystem of the National Forests in Texas contains mostly mixed

forests of pine and hardwood, the even-aged management practices maximize the production

of southern pines (loblolly, shortleaf, and longleaf) and reduces hardwood tree species.

The FS's even-aged management practices are drastically reducing plant and animal species

in some areas of the forest and creating areas of pine monoculture. Some plant and animal

species may be irretrievably lost.

Three groups of organisms are adversely impacted by the characteristics of an even-

aged managed forest: (1) species dependent on large patches of interior forests; (2)

species dependent upon characteristics of old forests; and (3) species that cannot

tolerate the change in stand conditions at the micro-level such as change in temperature

or sunlight. The plant and animal habitat is altered when even-aged management practices

remove the protective forest canopy and expose the forest floor to sunlight. Even-aged

management also involves site preparation activities such as shearing and piling of

vegetation from the forest floor.

Once an area is harvested under even-aged management, pine trees are regenerated,

often removing any competing hardwoods. The FS justifies the use of fire and other

methods (e.g., herbicides) to remove hardwoods by claiming that these practices are

similar to the frequency of fire in the natural, pre-European settlement forest. The FS's

hypothesis that the Texas forests were predominantly pine in their natural state, however,

is undermined by their regular practice of having to eradicate hardwoods and other plant

life that naturally compete with the pine trees shortly after harvesting and regeneration.

*[A recent Forest Service statement regarding the use of prescribed burns (EA for Cpts 55

and 56, Sam Houston National Forest, 7 Feb 1997) contrasts with Judge Schell's under-

standing. Acknowledging that the intervals of its burn regime are at least 3X more

frequent than natural for shortleaf communities and even more than that for loblolly, the

FS made the following statement: "The planned burning cycles are part of the overall

management intended to produce the desired future conditions identified in the FLRMP.

There is no requirement that management activities, including fire, must mimic that which

would occur "naturally." Using prescribed fire on a consistent burning cycle allows the

FS to use the natural process of fire without the adverse consequences that could be

created with longer periods between the burns."]

Even though the court recognizes that "the FS's even-aged management practices are

drastically reducing plant and animal species in some areas of the forest and creating

pine monoculture," it "cannot conclude that the FS's actions are irrational or otherwise

arbitrary and capricious." Under (1) the APA's deferential standard of review, (2)

deference to the FS's expertise, and (3) ambiguous NFMA statute and regulations on

diversity and its distribution within the forest, the court determines that, on the

evidentiary record in this case, the Federal Defendants have not violated the NFMA.

On the other hand, because the FS has failed to monitor and collect data on its

management indicators (MIs, see below), it has no way itself to evaluate diversity of

plant and animal species in terms of their existence and distribution.

The court found the USFS in violation of [NFMA] in three broad areas:

* soil, * watershed, and * inventorying and monitoring.

The FS is neither protecting nor conserving the key resource of soil. FS management

practices, which have been primarily even-aged, are causing severe erosion of soil and

loss of essential organic matter from the forest landscape and related loss of organic

matter. This soil loss is substantially and permanently impairing the productivity of the

forest land and possibly timber production. Without rich forest soil, plant and animal

communities suffer as well as the forest land's ability to produce healthy timber stands.

An even-aged management site, as managed by the FS, produces increased runoff of

water and soil for thirteen years before a return to normal runoff levels. This return to

normal runoff occurs only after the nutrient-rich soil has been irreversibly displaced off

the forest land. Once lost, the organic matter does not return for hundreds of years, and,

in some instances, thousands of years. Even-aged management also causes loss of nitrate

(a form of nitrogen) through runoff from timber harvest sites for twenty years or longer.

The erosion is carving channels or gullies from a few inches deep to several feet.

When run-off of water and soil from a timber harvest site reaches streams it changes their

character by making them wider and shallower and by altering the stream's water flow.

The eroded soil fills in pools and is deposited in streams and gullies.

The evidence at the trial did not indicate which of the particular even-aged manage-

ment practices was the primary cause of the severe soil erosion and derogation of the

organic matter in the soil. The possible causes are numerous, including: poor site

selection, excessive rutting and compaction, cutting within streamside management

zones, harvesting during poor soil conditions, intensive site preparation, eradication

of hardwood trees from a site, and failure to restore damaged areas.

The FS is neither protecting nor conserving the key resource of watershed. FS

management practices (timber harvesting activities), which have been primarily even-aged,

are causing substantial and permanent (1) erosion within waterways, (2) deposit of soil,

silt, and sedimentation in waterways, and (3) disruption of water runoff. This derogation

of the watershed resource is substantially and permanently impairing the productivity of

the forest land. As determined in the previous section on the soil resource, the FS are

causing severe soil erosion from the forest land. This soil erosion in turn is adversely

affecting the waterways that are an integral part of the watershed resource. First,

excessive runoff from timber harvest sites causes erosion and scouring of streams. The

evidence at trial indicated that some of the streams in the National Forests in Texas have

been erosed away or "blown-out" by excessive water runoff. Second, the erosion and

displacement of soil from timber harvest sites are filling in streams or otherwise causing

severe siltation and sedimentation. Siltation and sedimentation detrimentally change the

water's temperature and chemical composition. Third, once a stream is eroded away or

filled in, water flow rates are adversely affected. For example, an increase in a water flow

rate (1) contributes to the risk of flooding after a storm and (2) deprives the watercourse

of a steady flow of water needed to support plant, fish, and other animal life.

The FS timber harvesting practices also are damaging the watershed resource by

permitting (1) timber harvesting within streamside management zones and (2) blocking

streams with tree stumps, slash, and other logging debris. The FS harvesting within

streamside management zones is causing irreversible damage to the watershed resource.

First, excessive removal of vegetation around a stream exposes the soil to erosion in and

surrounding the stream and its banks. Second, without vegetative cover, the stream itself

is subjected to sunlight, which increases water temperature, changes the chemical

composition, and destroys fish habitat. Third, timber harvesting within the streamside

zone deposits tree stumps, slash, and other logging debris within the streams. This

derogation of the streams destroys plant, animal, and fish habitat, exacerbates the erosion

and sedimentation problems, and contributes to flooding by disrupting water runoff.

Whatever FS planning documents prescribe with respect to protection of watershed, the

evidence shows that, on-the-ground, the FS is not protecting or conserving the watershed

resource.

The NFMA and regulations create five broad requirements for inventory and monitoring.

(1) The FS must inventory and monitor the forest resources (i.e., fish and wildlife, soil,

watershed, recreation, esthetic, and timber). In inventorying and monitoring the forest

resources, the FS must evaluate the effects of management practices on the resources.

(2) With respect to the fish and wildlife resources, the FS must select, inventory, and

monitory MIS populations [MIS = "management indicator species," see below].

(3) The FS must collect inventory data that permits evaluation of diversity in terms of

its prior and present condition.

(4) The FS must inventory and monitor to determine whether it is meeting objective and

adjereing to management standards and guidelines.

(5) The FS must ensure research to evaluate the effects of management practices.

Sufficient inventorying and monitoring of forest resources is vital to making sound,

forest management decisions and ultimately protecting the forest resources from

permanent impairment. The FS, however, has not adequately inventoried and

monitored for wildlife, MIS, diversity, and whether it is meeting objectives

and adhering to standards and guidelines. The failure to adequately inventory

and monitor may be causing permanent and substantial damage to the

productivity of the land.

The FS is not collecting population data on wildlife to ensure viable populations. It

instead is relying on hypothetical models to assess habitat capability and then assuming

that viable populations of species are in existence and well-distributed on the forest land.

The FS's failure to collect population data forecloses its ability to evaluate forest diversity

in terms of wildlife and to adequately determine the effects of its management activities.

At trial and in its on-the-ground management, the FS has taken the position that

collection of population data on MIS is 'not practical' because of the number of acres the

FS is required to manage. The FS instead: (1) provides habitat for the particular species,

(2) determines whether there is an "occurrence" of that species, and then (3) "assumes"

that the population is sufficiently distributed.

The FS must collect inventory data to evaluate its management activities --- not

simply assume that its management activities are sound based on the provision of a

hypothetical habitat. In developing inventorying and monitoring requirements, Congress,

the Secretary of Agriculture, and the Committee of Scientists clearly intended that the FS

collect data to determine the actual effects of various forest management decisions. In

fact, the FS carries this intent into its own planning documents. On the evidentiary

record before this court, the [FS's] assumption that merely providing habitat will ensure

viable populations of MIS and relieve the FS of collecting population data is not reasonable.

Under the 1987 LRMP, the FS selected a set of "management indicator species" (MIS),

including seven fish, six birds, two mammals, and a lizard. Under the 1996 LRMP, the FS

has selected MIS and included them within a new category of indicators called "management

indicators" (MIs). These include birds, fish, mammals, herbaceous plants, trees, forest

types, and ecologically related groups of insects. The NFMA requires these MIS and MIs be

selected 'because their population changes are believed to indicate the effects of management

activities.' The MIs are 'chosen as monitoring proxies for a number of other plant and animal

species,' and since the FS is primarily responsible for habitat maintenance, MI proxy species

should represent all major habitat types. To determine the effects of management activities,

to maintain viable populations of existing native vertebrate species, and to ensure that those

species are well distributed throughout the forest, the FS must inventory and monitor the

populations and population trends of those MIs, including a census program to determine

the distribution and abundance of the particular species selected. Although the FS is not

required to maintain a detailed list of every plant and animal species in the management

area, population trends of the MIS will be monitored and relationships to habitat

changes determined.

Forest planning shall provide for diversity of plant and animal communities and trees

species consistent with the overall multiple use objectives of the planning area. Such

diversity shall be considered throughout the planning process. Inventories shall include

quantitative data making possible the evaluation of diversity in terms of its prior and

present condition.

The FS, of course, has discretion in choosing its methods of inventorying and

monitoring. This discretion, however, must be rational and within the boundaries of the

NFMA and regulations. Once the FS comes into compliance with the inventorying and

monitoring requirements, the FS and other interested parties will have a better idea of

whether the FSs planning decisions and activities on-the-ground are within its sound

discretion and thus in compliance with the NFMA and regulations.

"Because Plaintiffs did not carry their burden, the court determines that the Federal

Defendants are not in violation of the NFMA and regulations with respect to the issues of

(1) ensuring diversity; (2) protecting the key resources of fish, wildlife, recreation

(including esthetic), and timber; 3) inventorying and monitoring of fish, soil, watershed,

recreation (including esthetic), and timber; and (4) adequate research."

The judgement determines that four elements legally required for a permanent

injunction have been met in this case.

(1) "Actual success on the merits" (the plaintiffs have proven their case).

(2) Substantial threat of irreparable injury exists because of damage to soil and

watershed resources and because of continuing violations of the inventorying and

monitoring requirements.

(3) Irreparable injury to the environment and Plaintiffs far outweighs any harm caused by

an injunction. Federal Defendants may lose revenue if the court enjoins the sale of

timber contracts, and Timber Intervenor's members may have to obtain another source of

timber from private holdings or other National Forests, but these harms are outweighed by

the permanent and grave harm to the forest land that is caused by the FS's past and

ongoing violations of the NFMA. The Supreme Court has stated: 'Environmental injury, by its

nature, can seldom be adequately remedied by money damages and is often permanent or

at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore,

the balance of harms will usually favor the issuance of an injunction to protect the

environment.'

(4) Public interest would be served by an injunction that prevents substantial and

permanent impairment of the forest land. Congress had this public interest in mind when

it enacted the Multiple-Use Sustained Yield Act of 1960 (MUSYA). MUSYA requires

(1) that the National Forests be managed for the 'multiple use' of various renewable

resources, including 'recreation, range, timber, watershed, and wildlife and fish,' and

(2) that the 'periodic output' of such resources be maintained 'in perpetuity ... without

impairment of the productivity of the land.'

At any time, the parties may petition the court to modify the injunction.

 ------------------------------------------------------------------------------------------------------

Summary and condensation prepared by

Guy L. Nesom

Texas Regional Institute for Environmental Studies

Sam Houston State University

Huntsville, TX 77340

email: env_gln@SHSU.edu

phone: (409) 294-3581