The opinion of the court was delivered by: GESELL
This case challenges the propriety of a government program that involves extensive cutting of trees in four southern wilderness areas. It is presently before the Court on the plaintiff's motion for a preliminary injunction based on alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and the Endangered Species Act, 16 U.S.C. §§ 1531-1543. After reviewing extensive affidavits and briefs submitted by the parties and hearing oral argument, the Court finds as follows.
This case places the Court in the middle of an environmental dilemma. The Southern Pine Beetle is killing thousands of acres of pine trees in the southeastern United States. Beetle infestations start with a "spot" (approximately 50 trees or more) of yellowing, dying pine trees that rapidly grows as the beetles reproduce and attack more trees. In order to control the spots the government is cutting the infested trees and creating "buffer" areas by cutting uninfested pine trees around the spots. Thousands of acres of pine trees have already been cut in an effort to control the beetles' progress and some of the buffer zones extend for miles. The cut trees are sometimes removed or treated with chemicals, but they are often left in the forest untreated. The cutting program is currently being used in the national forests and the national wilderness areas and similar control methods are being followed on private timberlands, at the urging of state and federal authorities. The government maintains that without this cutting program, the southern pine beetle infestations may destroy commercial and environmental value of the pine forests.
The plaintiffs complain that the cutting is destroying national wilderness areas. The government's control efforts bring in motorized equipment and leave behind fallen timber, stumps and large areas of cleared woodlands, destroying the pristine environment of wilderness forests that have been set aside to be protected from gross human intrusion as a matter of national policy. See Wilderness Act, 16 U.S.C. § 1131(c). Moreover, they argue, there is no scientific proof that the cutting is effective in stopping the beetle. Plaintiffs maintain that it is better to risk loosing the trees to a natural pest like the beetle than to have planned destruction of wilderness areas proceed without full appraisal of its environmental consequences.
In the middle of this controversy is the red-cockaded woodpecker, an endangered species. The woodpecker lives in living pine trees and depends on the pine forests for its habitat. The government maintains that the cutting program is necessary, in part, because it protects the red-cockaded woodpecker from the direct threat posed by beetles killing the pine trees housing woodpecker colonies and from the indirect threat posed by the potential long-range loss of the pine forests. Thus, the government's program has two principle objectives: to prevent spreading beetle infestations from destroying the commercial value of pine forests adjacent to the wilderness areas and, where red-cockaded woodpecker colonies are known to exist, save the colonies and their habitat. The plaintiffs argue that the government's cutting of pine trees around woodpecker colonies harms their habitat and has not been shown to have any beneficial effect on the colonies.
Plaintiffs seek to preliminarily enjoin the cutting program in four wilderness areas: Black Creek and Leaf Wilderness area in DeSoto National Forest, Mississippi; Caney Creek Wilderness area in Ouchita National Forest, Arkansas; and Kisatchie Hills Wilderness area in Kistchie Hills National Forest, Louisiana. In initiating these cutting programs, the government has made some effort to comply with NEPA and the Endangered Species Act. Since 1982, three environmental assessment statements (EAS) have been issued, each covering the control program in one of the three national national forests, including the wilderness areas within those forests. All three assessments concluded that the southern pine beetle control program will not result in any significant impact on the environment so no environmental impact statement (EIS) was required in order to comply with NEPA. Prior to these assessments, a programmatic EIS on the southern pine beetle control program was completed in 1974. A new programmatic EIS is now in progress and is scheduled to appear in draft form in October, 1985. In addition, the Forest Service has engaged in consultations with the Fish and Wildlife Service, pursuant to its obligations under the Endangered Species Act. See 50 C.F.R. § 402.04. These consultations have resulted in special guidelines for conducting the cutting in the vicinity of red-cockaded woodpecker colonies. If these guidelines are followed, the Fish and Wildlife Service believes that the cutting program is "not likely to jeopardize the continued existence of the red-cockaded woodpecker."
1. The National Environmental Policy Act.
In determining whether the Forest Service's decision not to prepare an EIS is likely to be upheld, the Court is guided by the Council on Environmental Quality's (CEQ) guidelines on NEPA compliance, 40 C.F.R. §§ 1501-08, and an inquiry into (1) whether the agency took a "hard look" at the environmental problems; (2) whether the agency identified the relevant areas of environmental concern; (3) whether the agency has made a convincing case that the problems it has identified pose an insignificant impact; and (4) whether the agency has convincingly established that changes in the project reduced any significant impact to a minimum. Sierra Club v. United States Department of Transportation, 243 U.S. App. D.C. 302, 753 F.2d 120, 127 (D.C. Cir. 1985); Cabinet Mountains Wilderness v. Peterson, 222 U.S. App. D.C. 228, 685 F.2d 678, 682 (D.C. Cir. 1982); Maryland National Capital Park & Planning Commission v. U.S. Postal Service, 159 U.S. App. D.C. 158, 487 F.2d 1029, 1040 (D.C. Cir. 1973). In short, the Court must determine whether "the agency has supplied convincing reasons why potential impacts are truly insignificant." 487 F.2d at 1040.
The environmental assessments on the southern pine beetle control program do not appear to meet this standard. None of the environmental statements adequately address the impact of cutting wilderness areas. The 1974 EIS is addressed to cutting programs in forests that are to be harvested for commercial use and does not even attempt to address wilderness values. The more recent EASs only contain a cursory and perfunctory discussion of the wilderness problem. Moreover, under CEQ's definitions, any action "with effects that may be major" in light of its context and intensity requires a EIS. 40 C.F.R. §§ 1508.18, 1508.25. One could not rationally conclude that cutting thousands of acres of pine trees in a wilderness forest will not have any effects that may be major. See Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1249-50 (10th Cir. 1973).
Indeed, the government does not even defend the finding of "no significant impact" in this litigation. Instead the government argues that the assessment statements indicate the 1974 EIS need not be supplemented and that there is an emergency situation which justifies going forward without awaiting the completion of a complete EIS. However, these arguments appear to be post hoc rationalizations since the EASs do not offer any of these reasons as a basis for the conclusion that no EIS was necessary. Moreover, it appears that a new EIS is necessary to supplement the previous statement. The 1974 EIS evaluated a different set of control programs under significantly different circumstances. See 40 C.F.R. § 1502.9(c)(1)(ii). The first of these EASs was issued in 1982 and no emergency has prevented the government from preparing an EIS for three years.