Texas v. U.S. Forest Serv.
Citation: 17 ELR 20402
No. No. 86-2951, 805 F.2d 524/(5th Cir., 11/25/1986)
The court holds that continuing a stay pending appeal is unjustified where the state had not shown a likelihood of prevailing on its claim that the Forest Service violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement (EIS) before clear-cutting 2,304 acres in the Forest Notch area of Sam Houston National Forest. The court first notes the reasons for the clear cut provided in the environmental assessment (EA) for the area and its reference to an earlier ten-year plan and comprehensive EIS for all of Sam Houston National Forest. The EA determined that the clear cut would not significantly affect the quality of the human environment and the EA contemplated forest management practices in accordance with the larger EIS and plan. The court holds that if an EA adequately considers the environmental effects of an anticipated action, requiring a site-specific EIS each time the Forest Service acts to improve the national forests would exceed the protections required by NEPA. Distinguishing cases in which courts required an EIS for activities beyond pure protection of the natural resource, the court finds that the Forest Service motivation for the clear cut is improving an endangered area of the forest. The court holds that the state failed to demonstrate likely success on the merits or that the balance of the equities strongly supports a continued stay of Forest Service action, given the "choked conglomerate" that the forest would become without Forest Service intervention and the protective measures included in its EA.
Counsel for Plaintiff-Appellant
Jim Mattox, Attorney General; Renea Hicks, Ass't Attorney General
P.O. Box 12458, Capitol Station, Austin TX 78711
Counsel for Defendant-Appellees
Henry K. Oncken, U.S. Attorney; Frank A. Conforti, Ass't U.S. Attorney
P.O. Box 61129, Houston TX 77208
Before POLITZ, WILLIAMS and JONES, Circuit Judges.