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Sierra Club v. Lyng

Citation: 19 ELR 20450
No. No. L-85-69-CA, 694 F. Supp. 1260/(E.D. Tex., 06/17/1988) Permanent injunction issued

The court holds that clearcutting in several national forests in Texas constitutes a taking of the red-cockaded woodpecker under § 9 of the Endangered Species Act (ESA), and that the Forest Service's timber practices have jeopardized the species within the meaning of § 7. The court first holds that the Forest Service's clearcutting practices have resulted in a taking of an endangered species under ESA § 9. Clearcutting "harms" the woodpecker within the meaning of Forest Service regulations, since it significantly modifies the woodpecker's habitat, and there has been a severe decline in the woodpecker population in the past 10 years. It is not merely that the species' recovery has been impaired by the agency's practices, but rather those practices themselves have caused the species' decline. The court then holds that the Forest Service's clearcutting policies jeopardize the woodpecker and thus violate ESA § 7. The Forest Service's failure to implement practices identified by its own experts as critical to save the woodpecker from extinction is contrary to law.

The court holds that the doctrine of res judicata applies to two plaintiffs' claims under the Wilderness Act, since a related action they brought in another federal court involved substantially the same facts and virtually the same legal issues as those asserted in this case, even though different national forests were implicated. Since the third plaintiff was not a party to the previous litigation, the court holds on the merits that § 4 of the Wilderness Act does not require the Forest Service to show that its program of pine [19 ELR 20451] beetle control in the Texas forests is absolutely effective. Although the Forest Service's techniques for controlling the beetle are not completely effective, they do have some impact, and there is conflicting scientific evidence regarding the best course of action for combatting insects in these forests. Moreover, the agency's discretion is entitled to some deference. The court holds that the Forest Service's denial of plaintiffs' request for a stay of the implementation of the national forest plan pending final resolution of their appeal challenging the plan was not arbitrary and capricious. The Service concluded that the public interest weighed against a stay, since timber harvesting could be delayed for up to two years, which could have a serious impact on the wood products industry. While plaintiffs object to the Service's assessment of the public interest, the considerations cited were valid ones for assessment by the agency.

The court holds that a permanent injunction enjoining clearcutting within 1,200 meters of any woodpecker colony is warranted, since plaintiffs have demonstrated actual success on the merits and irreparable harm will result to the woodpeckers if action is not taken immediately in the zones surrounding their colonies. Harm to the woodpecker through possible extinction outweighs the impact to timber harvesting in certain national forest areas, and other timber management techniques may continue. Moreover, Congress has recognized the importance of preserving endangered species.

[Earlier decisions from this litigation are published at 16 ELR 20049 and 18 ELR 20595. Related litigation is published at 15 ELR 20775 and 18 ELR 20064.]

Counsel for Plaintiffs
Doug L. Honnold
Sierra Club Legal Defense Fund
727 Walnut, Boulder CO 80302
(303) 449-5591

Counsel for Defendants
Ruth Harris Yeager, Ass't U.S. Attorney
First Republic Bank Plaza Tower
110 N. College St., Ste. 600, Tyler TX 75702
(214) 527-8146

Charles W. Brooks
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4084