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Sierra Club v. Peterson

ELR Citation: 31 ELR 20135
Nos. No. 97-41274, 228 F.3d 559/(5th Cir., 09/20/2000) vacated and remanded

The court vacates and remands a district court decision that enjoined U.S. Forest Service timber harvesting in the National Forests of Texas due to on-the-ground Forest Service violations of the National Forest Management Act (NFMA). Because the NFMA does not provide for judicial review, the Administrative Procedure Act (APA) governs, and it limits review to final agency action. The court first holds that the district court exceeded its jurisdiction under the APA by reviewing the environmental groups' challenge to the Forest Service's management of the Texas forests. Under Lujan v. National Wildlife Federation, 497 U.S. 871, 20 ELR 20962 (1990), challenges to final agency action are limited to challenges of identified, particularized events, and do not include programmatic challenges. The environmental groups' challenge here is precisely the type of challenge that the U.S. Supreme Court struck down in Lujan. The environmental groups challenged past, ongoing, and future timber sales approved by the Forest Service, and they argued that the Forest Service failed to monitor and inventory properly in conducting these sales. This is not a justiciable challenge because the program of timber management to which the environmental groups object does not mark the consummation of the agency's decisionmaking process. Instead, the environmental groups impermissibly attempted to demand a general judicial review of the Forest Service's day-to-day operations. The court next holds that the programmatic challenges are not made justiciable by the fact that the environmental groups identified some specific sales in their pleadings that they argue are final agency actions. Rather than limit their challenges to individual sales, the environmental groups merely used the sales as evidence to support their sweeping argument that the Forest Service's on-the-ground management of the Texas forests over the last 20 years violates the NFMA. The court further holds that the environmental groups cannot maintain their challenge under the alternative theory that the Forest Service failed to act. The Forest Service's alleged failure to comply with the NFMA in maintaining Texas' national forests does not reflect agency inaction. The Forest Service has not failed to issue a land and resource management plan or to conduct timber sales, nor have the environmental groups argued that the Forest Service did not attempt to comply with the NFMA.

Counsel for Plaintiffs
Stuart Henry
Henry, Lowerre, Johnson, Hess & Frederick
202 W. 17th St., Austin TX 78701
(512) 479-8125

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

Before Politz, Jolly, Higginbotham, Davis, Jones, Smith, Wiener, Barksdale, DeMoss, Benavides, Stewart, and Dennis, JJ.*