Texas Comm. on Natural Resources v. Bergland
Citation: 8 ELR 20445
No. No. 77-2671, 573 F.2d 201/11 ERC 1673/(5th Cir., 05/08/1978) Rev'd
Reversing the lower court's issuance of injunctive relief, 7 ELR 20720, the court of appeals rules that the Forest Service need not prepare a programmatic environmental impact statement (EIS) for clearcutting in Texas national forests pursuant to interim guidelines under the National Forest Management Act (NFMA). The legislative history of the Act indicates that Congress decided to permit clearcutting in national forests under the interim guidelines, and this legislative decision is not subject to indirect judicial review under the National Environmental Policy Act (NEPA). The court finds, however, that the Forest Service must comply with NEPA requirements when it develops permanent resource management guidelines pursuant to NFMA. Appellants are incorrect in asserting that the two-year timetable for development of the permanent guidelines creates an irreconcilable conflict with NEPA. Relying on Kleppe v. Sierra Club, 6 ELR 20532, the court further concludes that the Service's preparation of individual EISs, rather than a single programmatic EIS, for clearcutting in particular forests was not arbitrary. The lower court thus abused its discretion in enjoining further clearcutting in the Texas national forests. The injunction is dissolved, and the Service may pursue clearcutting under the interim guidelines until the permanent NFMA guidelines go into effect.
A partial dissent argues that clearcutting under the interim guidelines does require an EIS in order to assure that environmental impacts are fully considered in agency decision making but that preparation of such an impact statement can be carried out while clearcutting proceeds.
Counsel for Plaintiff-Appellee
William H. Kugle, Jr.
Kugle, Douglas & Skelton
P.O. Box 152, Athens TX 75751
Helen Linker, John R. Beers, James B. Frankel
Natural Resources Defense Council
2345 Yale St., Palo Alto CA 94306
Counsel for Defendants-Appellants
Robert Klarquist; James W. Moorman, Ass't Attorney General; Edmund B. Clark
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Richard A. Brooks, James G. Ulmer, Lawrence MacNamara, Michael Skelton
Baker & Botts
3000 One Shell Plaza, Houston TX 77002
James R. Cornelius, Jr.
Zelesky, Cornelius, Rogers, Berry & Hallmark
403 S. Chestnut St., P.O. Box 1728, Lufkin TX 75901
Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.