Sierra Club v. Glickman

MEMORANDUM OPINION, ORDER, AND INJUNCTION WITH SUPPORTING FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE EVEN-AGED MANAGEMENT AND INVENTORYING-MONITORING ISSUES

The Sierra Club, Texas Committee on Natural Resources (“TCONR”), and The Wilderness Society (collectively “Plaintiffs”) brought this action challenging the United States Forest Service’s management of the National Forests in Texas. The Texas Forestry Association and Southern Timber Purchasers Council (collectively “Timber Intervenors”) have intervened. The broad issue before the court is whether the Forest Service is complying with the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600-14 and related regulations, 36 C.F.R. § 219.1-29 (hereinafter “NFMA regulations” or “regulations”). The NFMA and regulations generally require: (1) diversity of plant and animal communities as well as tree species, (2) protection of key resources, and (3) inventorying and monitoring for key resources, diversity, and effects of management activities. Considering the evidence adduced at trial, legal argument of counsel, and the parties’ respective proposed findings of fact and conclusions of law, the court is of the opinion that the Forest Service has stepped outside its discretion and acted arbitrarily and capriciously with respect to (1) protecting the key resources of soil and watershed and (2) inventorying and monitoring the wildlife resource, forest diversity, and whether the Forest Service is meeting its objectives and adhering to standards and guidelines with respect to wildlife.

With respect to the soil resource, the evidence shows that the Forest Service’s management activities are causing severe soil erosion and loss of essential organic matter. This loss of soil and organic matter substantially and permanently affects the productivity of the land. Without rich forest soil, plant and animal communities suffer as well as the forest land’s ability to produce healthy timber stands. With respect to the watershed resource, Forest Service management practices are causing substantial and permanent (1) erosion within waterways, (2) deposit of soil, silt, and sedimentation in waterways, and (3) disruption of water run-off. Additionally, the Forest Services’s practice of permitting timber harvesting in streamside management zones exacerbates the erosion and sedimentation problems and causes the deposit of logging debris in streams. This derogation of the streams (1) destroys plant, animal, and fish habitat and (2) contributes to flooding.

With respect to the Forest Service’s inventorying and monitoring obligations, the Forest Service is not collecting population data on wildlife to ensure viable populations. The Forest Service instead is relying on hypothetical models to assess habitat capability and then assuming that viable populations of species are in existence and well-distributed on the forest land. The Forest Service’s failure to collect population data forecloses its ability to evaluate forest diversity in terms of wildlife and to adequately determine *912 the effects of its management activities. The Forest Service’s failure to adequately inventory and monitor may be causing permanent and substantial damage to the productivity of the land. Sufficient inventorying and monitoring of forest resources is vital to making sound, forest-management decisions and ultimately protecting the forest resources from permanent impairment. In light of the Federal Defendants’ noncompliance with the NFMA and regulations, the court will enjoin certain timber harvesting activities until the. Forest Service demonstrates compliance “on-the-ground.”

BACKGROUND

This case has spanned over a decade and involved many complex issues. 1 In this stage of the case, Plaintiffs allege that the Forest Service is violating the NFMA and regulations. The court articulated the issues for trial in a prior order:

(1) Whether the Forest Service has, in practice, as required by the regulations, kept current and adequate inventories and monitoring data for key resources in the national forests in Texas; (2) Whether the Forest Service has, in practice, as required by the regulations, protected key resources in its application of even-aged management techniques; and (3) Whether the Forest Service has, in practice, as required by the regulations, provided for diversity of plant and animal communities in its application of even-aged management techniques.

Court’s Order of Aug. 21,1995.

Plaintiffs previously challenged the Forest Service’s even-aged management practices. 2 After the Chief of the Forest Service “shutdown” TCONR’s administrative appeal, TCONR and the other Plaintiffs here sought (1) a declaration that the Forest' Service’s even-aged management practices did not comply with the National Environmental Policy Act (“NEPA”), 3 42 U.S.C. § 4321, et seq. and the NFMA, and (2) an injunction against all even-aged management practices. Sierra Club v. Espy, 822 F.Supp. 356, 358 (E.D.Tex. 1993). Unlike the “on-the-ground” challenge now before the court, Plaintiffs argued that the Forest Service’s planning documents 4 “on-their-faee” violated NEPA and the NFMA. Id. at 359. The Honorable Robert M. Parker, then Chief Judge of the Eastern District of Texas, determined that the Forest Service was violating NEPA and the NFMA. Id. at 366-68. Specifically, in its planning documents, the Forest Service failed to consider important information and various cut *913 ting options. Id. The court reasoned that Plaintiffs were likely to succeed on their NEPA claims because the Forest Service had “ ‘swept’ some significant environmental considerations and criticisms of its scheduled even-aged management actions ‘under the rug,’ or failed to give good faith, meaningful consideration to foreseeable, statutorily important, environmental consequences of its planned even-aged logging activities.” Id. at 368. The court also reasoned that Plaintiffs were likely to succeed on their NFMA claims because the Forest Service used even-aged management as the “rule” when, in fact, the NFMA “contemplates that even-aged management techniques will be used only in exceptional circumstances.” Id. at 363-64.

The Court of Appeals for the Fifth Circuit reversed the district court’s decision. Sierra Club v. Espy, 38 F.3d at 795. The Fifth Circuit disagreed with the district court’s interpretation that the NFMA provides that even-aged management is an exception to a rule of uneven-aged management. 5 . Id. at 799. The Fifth Circuit stated:

That even-aged management must be the optimum or appropriate method to accomplish the objectives and requirements set forth in a [Land Resource Management Plan] does not mean that even-aged management is the exception to a rule that purportedly favors selection management. Similarly, the requirement that even-aged logging protect forest resources does not in itself limit its use. Rather, these provisions [in the NFMA] mean that the Forest Service must proceed cautiously in implementing an even-aged management alternative and only after a close examination of the effects that such management will have on other forest resources.

Sierra Club v. Espy, 38 F.3d at 799. In making this determination, the Fifth Circuit relied on Texas Comm. on Natural Resources v. Bergland, 573 F.2d 201 (5th Cir. 1978) (“Bergland ”). Following its reasoning in Bergland, the Fifth Circuit explained:

Congress, after hearing testimony on both sides of the clearcutting issue, struck a delicate balance between the benefits of clearcutting and the benefits of preserving the ecosystems and scenic quality of natural forests. Specifically, NFMA was an effort to place the initial technical, management responsibility for the application of NFMA guidelines on the responsible government agency, in this case thé Forest Service. The NFMA is a set of outer boundaries within which the Forest Service must work. We then cautioned the Forest Service that clearcutting could not be justified merely on the basis that it provided the greatest dollar return per unit output; rather, clearcutting must be used only where it is essential to accomplish the relevant forest management objectives.

Sierra Club v. Espy, 38 F.3d at 798-99 (internal citations and quotation marks omitted).

The Fifth Circuit then determined that the Forest Service’s timber-sale planning documents, i.e., the Environmental Assessments, complied with the NFMA. Interpreting the NFMA and regulations, the Fifth Circuit stated:

The directive that national forests are subject to multiple uses, including timber uses, suggests that the mix of forest resources will change according to a given use. Maintenance of a pristine environment where no species’ numbers are threatened runs counter to the notion that NTMA contemplates both even- and uneven-aged timber management. Indeed, NFMA regulations anticipate the possibility of change and provide that “[Reductions in diversity of plant and animal communities and tree species from that which would be expected in a natural forest, or from that similar to the existing diversity in the planning area, may be prescribed *914 only where needed to meet overall multiple-use objectives.” 36 C.F.R. § 219.27(g); see also 16 U.S.C. § 1604(g)(3)(C) (LRMP must ensure research and evaluation of effects of each management system to assure no “substantial and permanent impairment” of land productivity) (emphasis added); 16 U.S.C. § 1604(g)(3)(E)® (LRMP must provide that timber be harvested only where “soil, slope, or other watershed conditions will not be irreversibly damaged”) (emphasis added). That protection means something less than preservation of the status quo but something more than eradication of species suggests that this is just the type of policy-oriented decision Congress wisely left to the discretion of the experts — here, the Forest Service.

Id. at 800. The Fifth Circuit, however, warned:

The Forest Service’s discretion, however, is not unbridled. The regulations implementing NFMA provide a minimum level of protection by mandating that -the Forest Service manage fish and wildlife habitats to insure viable populations of species in planning areas. 36 C.F.R. § 219.19. In addition, the statute requires the Forest Service to “provide for diversity of plant and animal communities.” 16 U.S.C. § 1604(g)(3)(B).

Id. at 800-01. The Fifth Circuit interpreted the NFMA and regulations to actually require the Forest Service to comply with the law on-the-ground rather than merely including precatory standards and guidelines in its planning documents.

JURISDICTION

The court has jurisdiction over this action. “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” Administrative Procedure Act (“APA”), 5 U.S.C. § 702. “Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704 “ ‘[Ajgency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act ...” 5 U.S.C. §§ 551(13), 701(b)(2) (emphasis added). “When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is final for the purposes of [section 704] and therefore subject to judicial review____” Darby v. Cisneros, 509 U.S. 137, 146, 113 S.Ct. 2539, 2544, 125 L.Ed.2d 113 (1993) (internal quotation marks omitted). “While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, [section 704], by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates.” Id.

Under the APA, this court has jurisdiction to review the Forest Service’s failure to act with respect to alleged on-the-ground violations of the NFMA and regulations. NFMA regulations provide for administrative review of a Forest Service determination to make a specific sale of timber. 36 C.F.R. § 215.7. But no statute or regulation provides for an administrative review of agency actions after the sale with respect to implementing a LRMP in accordance with the NFMA. While an initial decision to offer a timber sale is appealable, subsequent implementing actions are not. 6 36 C.F.R. § 215.8(b).

The Forest Service’s failure to implement timber sales in compliance with the NFMA and regulations, as alleged by Plaintiffs, is a final agency action for purposes of section 704. Once the Forest Service adopted a final, definite course of action or inaction with respect to the management of the forest lands (regardless of whether that action or inaction is memorialized in a written agency decision), the court has a “final agency action” to review. A contrary view, held by the Federal Defendants and Timber Intervenors, *915 would put all of the Forest Service’s on-the-ground violations of the NFMA and regulations beyond judicial review. Under this view, the Forest Service seeks absolute immunity from its on-the-ground management activities. Awaiting future Forest Service timber-sale or planning decisions would not assist the court in determining whether the Forest Service is complying with the law on-the-ground. For example, neither the 1996 Land Resource and Management Plan (“1996 LRMP”) 7 nor any future timber sales under that Plan would put this court in a better position to determine whether the Forest Service has complied with the NFMA and regulations with respect to implementation of past timber sales.

Defendants argue that the issues before the court are moot because of the adoption of the 1996 LRMP that supersedes the 1987 LRMP. Federal Defs.’ Proposed Findings of Fact and Conclusions of Law at 108-09; Timber Intervenors’ Closing Argument on the NFMA Issues at 2-4. They also argue that the 1996 LRMP will govern all future timber sales and monitoring activities. A federal district court’s jurisdiction depends on a justiciable controversy under the constitutional case-or-eontroversy requirement. See U.S. Const, art. Ill, § 2, cl. 1. A justiciable controversy is one that is not moot. “The mootness doctrine requires that the controversy posed by the plaintiffs complaint be ‘live’ not only at the time the plaintiff files the complaint but also throughout the litigation process.” 8 Rocky v. King, 900 F.2d 864, 866 (5th Cir.1990). A live controversy must have an injury traceable to the actions of the defendants and susceptible to some judicial remedy. Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir.1995).

This action is not moot. Plaintiffs, as alleged, continue to suffer from the Forest Service’s alleged past and ongoing violations of the NFMA and regulations. Plaintiffs allege that the Forest Service’s even-aged logging activities, regardless of whether they are under the old or new LRMP, violate the NFMA and regulations with respect to implementation of past timber sales. If violations are ultimately determined to have been occurring, adoption of the 1996 LRMP does not guarantee that the Forest Service will comply on-the-ground with the NFMA and regulations. If continuing violations are found, the court can fashion a judicial remedy-

STANDARDS OF REVIEW

Section 706 of the APA establishes the scope of review for this action. Section 706 provides:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or unreasonably delayed; and

*916 (2) hold unlawful and set aside agency action, findings, and conclusions found to be—

(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law____

5 U.S.C. § 706. The arbitrary and capricious standard of section 706 applies in determining whether the Forest Service has complied with the NFMA and regulations. Sierra Club v. Espy, 38 F.3d at 798. Under the APA’s arbitrary and capricious standard, “administrative action is upheld if the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Sierra Club v. Glickman, 67 F.3d at 97. In other words, to make a finding that the Forest Service’s actions were arbitrary and capricious, “the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). “Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id.

In determining statutory compliance with the NFMA, the court must conduct a careful review:

[T]he starting point in every ease involving construction of a statute is the language itself. We must give effect to the unambiguously stated intention of Congress. In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy. However, an agency’s construction of an ambiguous statute it administers will be upheld so long as that construction is reasonable.

Sierra Club v. Espy, 38 F.3d at 798 (internal quotation marks and citations omitted). In determining whether the Forest Service complied with its own regulations, a court must give even greater deference to the Forest Service’s interpretation. The Forest Service’s interpretation of its own regulations will control if that interpretation is not “ ‘plainly erroneous or inconsistent with the regulations.’” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S.Ct. 1835, 1850, 104 L.Ed.2d 351 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). Absent proof of arbitrary and capricious action, courts must assume that the agency has exercised its discretion appropriately. Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976). The party challenging the agency action bears the burden of proof. Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir. 1995).

Federal officials or an agency are presumed to carry out their duties in compliance with the law. Diaz-Soto v. I.N.S., 797 F.2d 262, 264 (5th Cir.1986) (citing Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. at 823). “But that presumption is not to shield [agency] action from a thorough, probing, in-depth review.” Citizens to Preserve Overton Park, 401 U.S. at 415, 91 S.Ct. at 823. Under this standard, the court must determine whether the agency’s actions are within the substantive “outer boundaries” or limitations of the NFMA. See, e.g., Bergland, 573 F.2d at 210. “The NFMA is a set of outer boundaries within which the Forest Service must work. Within its parameters, the management decision belongs to the agency and should not be second-guessed by a court.” Id.

In reviewing Forest Service management activities that require a high level of technical experience, a court must defer to the informed discretion of the Forest Service. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989) (citing Kleppe v. Sierra Club, 427 U.S. at 412, 96 S.Ct. at 2731). “When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh, 490 U.S. at 378, 109 S.Ct. at 1861. A court, however, must hold the Forest Service to “certain minimal standards of rationality.” Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 329 (5th Cir.1988) (internal citations and quotation marks omitted). For *917 est Service decisions, even within its area of expertise, must be based on a reasoned evaluation of relevant factors. See Marsh, 490 U.S. at 378,109 S.Ct. at 1861-62.

Timber Intervenors argue that the NFMA and regulations do not provide sufficient legal standards for a court to determine whether the Forest Service is complying with the law on-the-ground. Timber Intervenors state: “The NFMA and most of the regulations provide no law to apply to [Plaintiffs’] claims of on-the-ground violations.” Timber Intervenors’ Closing Argument on the NFMA Issues at 8. Timber Intervenors further argue that the NFMA and regulations merely require the Forest Service to plan management activities rather than actually carry them out on-the-ground. Timber Intervenors argue: “The NFMA and the 36 C.F.R. Part 219 regulations do not create standards which apply to on-the-ground effects of even-aged management.” Id. at 6 (emphasis in original). Under the Timber Intervenors’ interpretations of the NFMA and regulations, no federal court could review the Forest Service’s management of the National Forests and determine whether the Forest Service is complying with the law on-the-ground. Under their interpretation, review would be limited to the facial content of the planning documents rather than actual, on-the-ground management activities. In essence, Timber Intervenors are proposing immunity for the Forest Service’s actions on-the-ground.

While acknowledging the Forest Service’s discretion in managing the forests, the Fifth Circuit, however, Circuit, however, has rejected the Timber Intervenors’ interpretation of the NFMA and regulations:

The Forest Service’s discretion, however, is not unbridled. The regulations implementing NFMA provide a minimum level of protection by mandating that the Forest Sendee manage fish and wildlife habitats to insure viable populations of species in planning areas. 36 C.F.R. § 219.19. In addition, the statute requires the Forest Service to “provide for diversity of plant and animal communities.” 16 U.S.C. § 1604(g)(3)(B).

Sierra Club v. Espy, 38 F.3d at 800-01. Here, as noted previously, the Fifth Circuit is interpreting the NFMA and regulations to require the Forest Service to comply with the law on-the-ground rather than merely including precatory standards and guidelines in its planning documents. Moreover, while section 1604(g) of the NFMA requires the Secretary of Agriculture to promulgate regulations for Forest Service planning, this section also mandates that the regulations set out guidelines for land management that actually achieve the goals set out for the Forest Service. See, e.g., 16 U.S.C. § 1604(g)(3). “The NFMA and its implementing regulations require[ ] the Forest Service to follow a range of legal standards in developing local forest plans and to manage the national forests in accordance with the plans.” Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests 45 (1987) (emphasis added). “The NFMA ... require[s] courts to scrutinize forest plans, and activities based on those plans, on both procedural and substantive grounds.” Id. at 74. Therefore, based on the foregoing interpretations of the NFMA and regulations, there are sufficient legal standards available to review the Forest Service’s actions. And, its actions are not wholly “committed to agency discretion by law” under section 701(a)(2) of the APA See, e.g., Webster v. Doe, 486 U.S. 592, 599, 108 S.Ct. 2047, 2051-52, 100 L.Ed.2d 632 (1988) (noting that 701(a)(2) “applies in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply”) (internal citations and quotation marks omitted).

BACKGROUND FINDINGS

Throughout this opinion, all findings of fact that could be construed as conclusions of law are to be construed as such, and all conclusions of law that could be construed as findings of fact are to be construed as such. Findings of fact in any one section of this opinion are hereby incorporated into every other section. All findings of fact are to be construed as being made in the past and present verb tense. The citations to the trial record that follow some of the findings of fact are for the reviewing court’s convenience and not necessarily inclusive of all the evidentiary support for the court’s findings. Citations to *918 the trial-record transcript are indicated by “R. page/line(s).”

1.The National Forests and Grasslands in Texas are comprised of four separate forests and two grasslands. The total acreage for the National Forests and Grasslands is approximately 675,000 acres. R. 792/10-12;' Gov’t Ex. 15, Final Land Resource Management Plan dated April 1987 (“1987 LRMP”), at 1-3.

' 2. The National Forests cover approximately 639,000 acres and are the Sam Houston, Davy Crockett, Angelina, and Sabine. R. 728/23 to 729/10, 776/12-20. There is no commercial timber harvesting on the grasslands, and therefore, the management of the grasslands is not at issue in this action. Gov’t Ex. 15,1987 LRMP, at IV-69. Findings of fact and conclusions of law in this opinion regarding acreage, volume, and percentages are limited to the four National Forests.

3. As of 1991: the Sam Houston National Forest contained approximately 161,-000 acres; the Davy Crockett National Forest contained approximately 162,000 acres; the Angelina National Forest contained approximately 153,000 acres; and the Sabine National Forest contained approximately 160,600 acres. Gov’t Ex. 19, Five Year Review/AMS dated March 1992 (“1992 Five Year Review”), at 16-3 to 16-4. Each National Forest has a proclamation boundary and within that boundary lies the actual United States Forest Service ownership. R. 751/24 to 752/4; Gov’t Ex. 19, 1992 Five Year Review, at 16-3 to 16-4. The Forest Service owns 37% of the lands within the proclamation boundaries. Id.; Gov’t Ex. 16, Draft Environmental Impact Statement dated September 1994 (“1994 DEIS”), at 124.

4. A map of the National Forests in Texas reveals a fragmented landscape that is the result of private holdings separating large segments of the forest and inholdings fragmenting even those more cohesive segments. Gov’t Ex. 176.

5. The land for the forests was purchased in the late 1930s and early 1940s pursuant to the Weeks Act of 1911, as amended, and by authorization from the Texas Legislature. Gov’t Ex. 15, 1987 LRMP, at 1-3; Gov’t Ex. 19,1992 Five Year Review, at 12-126.

6. The approximate 639,000 acres of the four National Forests are divided into compartments, which are administrative units to allow for more efficient management and record keeping. R. 873/13-19. Each compartment is divided into stands. R. 93/12-13.

7. The Forest Service deems" approximately 521,018 acres to be suitable for timber production. Gov’t Ex. 15, 1987 LRMP, at rv-n.

8. Although each stand and compartment is different, the activities occurring on Compartment 98 of the Sam Houston National Forest are generally typical of even-aged regeneration activities across the National Forests in Texas. R. 1258/20-23. Even-aged practices on one part of the planning area are generally similar to even-aged practices in other areas. R. 649/21 to 650/21.

PROVIDING FOR DIVERSITY

Findings of Fact

1. The Forest Service in Texas began practicing even-aged management techniques in the early 1960s. Gov’t Ex. 19, 1992 Five Year Review, at 12-128.

2. The even-aged system was the predominant management system used to regenerate timber under the 1987 LRMP. R. 764/9-11. The 1987 LRMP specified that approximately 60% of the pine acreage in the suitable land classification would be regenerated by clearcut and that 40% of the regeneration would be by the other even-aged methods of seedtree or shelterwood. Gov’t Ex. 15,1987 LRMP, at TV-15.

3. Pursuant to the Chief of the Forest Service’s decision on remand of Plaintiffs’ appeal of the 1987 LRMP, the determination of whether to utilize even-aged management in a timber sale is now made at the project level. Sierra Club v. Espy, 822 F.Supp. at 359 n. 5 (discussing the 1989 decision); Gov’t Ex. 243A, 1996 LRMP, at 9.

4. Even-aged management diminishes many of the plant and animal species native to the National Forests in Texas, and some plant and animal species may be irretrievably lost. R. 123/16 to 124/7, 254/9 to 261/3, 268/13 to 274/13, 456/4-24, 462/8-16, 656/10- *919 11,672/10 to 674/4, 1403/23 to 1404/6, 1582/5-14,1608/21 to 1609/4.

5. The natural ecosystem of the National Forests in Texas contains mostly mixed forests of pine and hardwood. Gov’t Ex. 19, 1992 Five Year Review, at 3-70, no. 1; Gov’t Ex. 243A, 1996 LRMP, at 10.

6. The even-aged management practices maximize the production of southern pines (loblolly, shortleaf, and longleaf) and reduce hardwood tree species. R. 452/4-19, 456/4-24, 466/5 to 467/3, 656/7 to 658/9; Gov’t Ex. 15,1987 LRMP, at J-4 to J-ll.

7. Under the 1987 LRMP, the even-aged management areas were, at times, referred to as “pine plantations.” Gov’t Ex. 15, 1987 LRMP, at IV-55.

8. Even-aged management is not permitted in certain areas of the National Forests in Texas. Commercial timber production of any kind is precluded on approximately 95,-000 acres or 14.9% of the National Forests in Texas, e.g., wilderness and scenic areas. R. 754/7-11; Gov’t Ex. 15, 1987 LRMP, at IV-11 to IV-12, Amendment 6 at 8.

9. The 1987 LRMP contemplated that even-aged management would be carried out on approximately 10% (63,840 acres) of the total National Forest land over ten years. Gov’t Ex. 15, 1987 LRMP, at IV-53. But, since the approval of the 1987 LRMP, the Forest Service has actually carried out even-aged regeneration on approximately 3.8% of the total National Forest land. R. 766/23, 792/8.

10. In 1995, 0.2% of the National Forests in Texas were harvested using even-aged regeneration. R. 766/23. The breakdown for each prior year is: 1.2% in 1987; 1% in 1988; 0.3% in 1989; 0.4% in 1990; 0.2% in 1991; 0.2% in 1992; 0.2% in 1993; and 0.2% in 1994. R. 766/9-23.

11. The estimate of 3.8% does not account for salvage volume because salvage is in response to an unplanned and unexpected happening or event. R. & 05/1 to 807/24, 872/20-25. Salvage is not a part of even-aged management. Id. For illustrative purposes, however, the total acreage of timber subject to even-aged harvesting and salvage for the last nine years represents approximately 8% of the forested lands on the four National Forests. R. 767/20, 808/2-5.

12. This number rises to 9.5% when it is calculated for only those forested lands suitable for commercial timber harvest, thus excluding the approximately 95,000 acres of unsuitable area. R. 808/12 to 809/7.

13. The National Forests in Texas consist of uneven-aged forests made up of even-aged stands. R. 993/23-24, 1406/22-23, 1443/19 to 1444/14. Even-aged management across the forests creates a mosaic of tree stands of different ages, classes, and species mixes, thus providing for a mosaic of different habitats. See, e.g., Gov’t Exs. 236-37 (map and key demonstrating the mosaic of age-class distribution on the Angelina National Forest); Gov’t Exs. 238-39 (map and key demonstrating the mosaic of forest type or species-class distribution on the Angelina National Forest).

14. To manage for diversity, the Forest Service tracks and provides for a diversity of habitats by collecting information on tree species. The Continuous Inventory of Stand Conditions database provides an overview of the age-class distribution for all National Forests in Texas. Gov’t Ex. 95; R. 889/14 to 891/4.

15. There is controversy about what a “natural” forest is because ecological systems are dynamic and change through time. R. 311/5-15,1547/1-11.

16. There is general consensus among plant ecologists, however, to use close to preEuropean settlement of North America as a reference point for what is “natural” because it is the first point in time in which there are a variety of lines of evidence from which ecologists can reconstruct vegetation patterns. R. 1547/16-24.

17. A variety of factors determined what the pre-European settlement or “natural” forest looked like. In addition to landscape location and physical variables such as nearness to water or soil texture and fertility, disturbances had an important influence in shaping the composition and structure of forests throughout the Southeast. R. 1555/3-12.

18. A “disturbance” is an event or occurrence that abruptly disrupts the forest structure and process. A disturbance can be *920 caused naturally or by man. R. 1556/7-13. Just as forests were variable on the landscape, the disturbance regimes found in these forests also varied. And, the structure and composition of the forests influenced the disturbance regime. R. 1557/15-22. Disturbances that contributed to the pre-European or “natural” forest were fire and wind events, impacts of insects and disease, and flooding. R. 1555/13 to 1556/3,1650/3 to 1657/2,1659/21 to 1663/8.

19. Some evidence shows that, under natural circumstances, East Texas may have been an uneven-aged forest made up of even-aged patches caused by disturbances. R. 993/23 to 994/1, 1569/6-14, 1605/12 to 1606/5 (literature has mixed information).

20. Even-aged management introduces a variety of disturbances. R. 1556/17-18.

21. The disturbances created by even-aged management are similar to fire and wind disturbances in some ways. With the exception of site preparation activities, harvesting by an even-aged method results in openings in the canopy somewhat similar to that which occurs naturally through wind events. R. 1570/8-21. The two are dissimilar in that canopy openings that occur from wind events will vary widely in size and distribution over the forest, while canopy openings that occur as a result of even-aged harvesting will be generally even-sized and evenly distributed over the forest landscape. On average, the openings created by even-aged harvesting will be approximately 30 acres, which is within the range of natural disturbances. R. 1570/21 to 1572/11.

22. Even-aged management, if uniformly applied, produces fairly moderate-size habitat patches distributed across the landscape. R. 1576/18 to 1582/10; Gov’t Ex. 236, 237 (map showing patches of age-class as distributed over the Angelina National Forest).

23. Three groups of organisms are adversely impacted by the characteristics of an even-aged managed forest: (1) species dependent on large patches of interior forests; (2) species dependent upon characteristics of old forests; and (3) species that cannot tolerate the change in stand conditions at the micro-level such as change in temperature or sunlight. R. 1584/3 to 1885/15.

24.Species such as neotropical migrants, which depend on larger, uninterrupted older forest, are provided for in the National Forests in Texas because there are large areas of the forest not dedicated specifically to even-aged management, e.g., wilderness areas, scenic areas, and other special management or interest areas. These areas will continue to be old forest and are dispersed across the forests in a way that provides required habitat for organisms like neotropical migrants. In addition, even within areas that are designated as general forest management areas (where even-aged management may occur), there are fairly large pieces of bottomland hardwood forest that remain uncut and fairly intact habitats for neotropical migrants (R. 1586/16 to 1587/24) and a significant amount of large, older even-aged stands necessary to the birds’ survival (R. 1401/19 to 1402/11).

Conclusions of Law and Analysis

Section 1604(g)(3)(B) of the NFMA provides:

(g) Promulgation of regulations for development and revision of plans; environmental considerations; resource management guidelines; guidelines for land management pl