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Sierra Club v. Glickman

ELR Citation: 26 ELR 20160
Nos. No. 94-40506, 67 F.3d 90/41 ERC 2048/(5th Cir., 10/20/1995) disapproval of interim guidelines remanded

The court holds that a district court improperly applied the de novo standard of review to the U.S. Forest Service's interim guidelines for the management of red-cockaded woodpecker habitat, and remands to the district court for a new review of the interim guidelines under the arbitrary and capricious standard. The Forest Service previously submitted a comprehensive timber management plan that the district court partially rejected as violating the Endangered Species Act (ESA), with the result that an earlier injunction against even-aged timber harvesting in Texas national forests continued. The Fifth Circuit vacated part of the district court's order and remanded for a review of the timber management plan under the arbitrary and capricious standard. While the matter was pending, the Forest Service requested the district court to approve its new interim guidelines. The district court rejected the interim guidelines as well, and the injunction remained in effect. The court first holds that it has appellate jurisdiction under 28 U.S.C. §1292(a)(1) over the Forest Service's appeal of the district court's refusal to approve the interim guidelines, because the district court order explicitly continued or refused to dissolve the existing injunction. Despite plaintiffs' contention that the Forest Service did not request the district court to lift the injunction, the record reveals that the fate of the injunction was unquestionably before the district court. The pleadings demonstrate that all parties recognized that the corollary of the district court's ruling would be the continuance or dissolution of the injunction. Further, language in the district court's opinion evidences its understanding that the necessary result of its denial of the motion was to continue, or refuse to dissolve, the existing injunction.

The court next holds that the appropriate standard of review of federal agency action under both §§7 and 9 of the ESA is the arbitrary and capricious standard. The court notes that it previously held that de novo review was the appropriate standard for review of the timber management plan's compliance with §9; however, it did so only because the proponent of the plan had argued for de novo review and should not be allowed to complain about the adverse result reached under that standard. Here, the Forest Service asked the district court to review the interim guidelines—not the timber management plan—and asked for the district court to apply the arbitrary and capricious standard. The court holds that its previous holding as to de novo review under §9 was restricted to the timber management plan reviewed previously, and was not to extend beyond those proceedings. The court holds that because the ESA does not establish the standard to be applied in conducting judicial review of agency action, the Administrative Procedure Act (APA) governs. And because the APA provides that courts shall hold unlawful and set aside agency action that is arbitrary and capricious, that is the appropriate standard of review of agency action under the ESA, including §9. De novo review is inapplicable to this case because development of a timber management plan is not adjudicatory in nature, and plaintiffs did not sue to enforce any action of the Forest Service. The court vacates the district court's denial of the motion to approve the interim guidelines and orders the district court to review the guidelines for compliance with the ESA, both §§7 and 9, applying the arbitrary and capricious standard. The court orders that the injunction remain in effect pending review.

[Prior decisions in this litigation are published at 16 ELR 20049, 18 ELR 20595, 19 ELR 20450, and 21 ELR 20755. Briefs are digested at ELR BRIEFS & PLEADS. 66041, 66045, and 66085.]

Counsel for Plaintiffs
Douglas L. Honnold
11 E. Main St., Unit C, Bozeman MT 59715
(406) 586-9699

Counsel for Defendants
Martin Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before WISDOM, DUHE, and BARKSDALE, Circuit Judges.