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Newton County Wildlife Ass'n v. U.S. Forest Serv.

ELR Citation: 28 ELR 20020
Nos. 96-1994, -3463, 113 F.3d 110/(8th Cir., 05/06/1997) MBTA challenge to timber sale

The court affirms a district court's orders denying environmental groups' motions to enjoin timber sales as violative of the Wild and Scenic Rivers Act (WSRA) and the Migratory Bird Treaty Act (MBTA). The court first holds that the district court properly denied the environmental groups' motions to preliminarily enjoin the timber sales because of the U.S. Forest Service's failure to complete the WSRA's comprehensive management plans. Although the Forest Service failed to complete comprehensive management plans within three fiscal years after river segments within the Ozark National Forest were WSRA-designated by Congress, the WSRA does not mandate completion of the plans before timber sales may be approved. Moreover, absent a specific statutory directive, a reviewing court would usurp the agency's procedural autonomy if it compelled it to channel its compliance efforts into a particular planning format. In addition, a preliminary injunction would be inappropriate, because the environmental groups have not refuted the Forest Service's contention that the four timber sales lie outside the boundaries of the WSRA-designated river segments. Because the Forest Service may limit WSRA plans to lands lying within designated river segments, failure to timely prepare the plans cannot be a basis for enjoining timber sales on lands lying outside any designated area.

The court rejects the environmental groups' argument that the Administrative Procedure Act (APA) confers jurisdiction to grant injunctive relief under the MBTA. Jurisdiction to review the timber sales is conferred by the National Forest Management Act (NFMA), not the APA. The court also holds that the Forest Service's actions under the NFMA did not violate the MBTA. The MBTA does not impose an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds. Furthermore, the MBTA does not appear to apply to the actions of federal government agencies. And the U.S. Fish and Wildlife Service's (FWS') MBTA special purpose permit regulation does not apply on its face to the Forest Service or other federal agencies. The court concludes that the environmental groups' real dispute is with FWS for failing to enforce the MBTA against the Forest Service, but that FWS' enforcement policy is committed to agency discretion.

Counsel for Plaintiffs
John Holleman
Grayson, Holleman & Grayson
Mercantile Bank Bldg.
One Riverfront Pl., Ste. 555, N. Little Rock AR 72119
(501) 370-9192

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

Before Fagg and Gibson, JJ.