With respect to those areas where the government plans to cut in wilderness areas in order to protect private or public forests, the Court finds that enjoining the cutting program until the government demonstrates that it has complied with NEPA will prevent irreparable harm, will not impose substantial harm on others, and will be in the public interest. The cutting imposes a scar on the wilderness areas that may take 70 years or more to heal. A full consideration of the environmental impacts of this cutting is precisely what NEPA mandates, in the belief that a federal program should not go forward until full consideration is given to these impacts. The government has failed to show that a substantial harm will result if the cutting is enjoined, particularly in light of the fact that no cutting is anticipated in three of the four wilderness areas and preparation of a new EIS is already underway.
Where the government plans to cut solely to protect red-cockaded woodpecker colonies, it is more difficult to determine where the public interest lies. This case poses an environmental Catch 22: concern for preservation of pristine wilderness conflicts with concern for the red-cockaded woodpecker whose habitat may be threatened unless the government cuts down infested wilderness trees. The woodpecker lives in large colonies established only in live pine trees. Thus heavy infestations of the beetle around colony trees may endanger it by destroying its home. At least one colony has reportedly been destroyed by southern pine beetles. Costa Affd. para. 4. Two colonies appear to have been saved by the control program. Id. para. 7. However, cutting is most effective against the beetle in the hot summer months when it may be most harmful to the woodpecker because this is the woodpecker's breeding season. The woodpecker feeds on southern pine beetles and other insects in standing trees. If too large an area is cut, or too many live infested trees are cut in the clearing process, the forage of the woodpecker will be significantly diminished. Nevertheless, the Fish and Wildlife Service maintains that cutting of infestations, if properly conducted, may benefit the woodpecker.
The plaintiffs urge that even this limited removal of infested areas by spot cutting immediately around a colony be enjoined because it has not been "scientifically" shown that the cutting is effective. Notwithstanding the absence of any discussion of efficacy in the EASs, at this stage the Court is inclined to presume that the cutting must have some effect in retarding the beetles' immediate attack on a colony. Common sense would seem to suggest this and the government's submissions contain several anecdotal reports as well as a scientific study that indicates that cutting is effective, at least for short-term control of spot infestations.
In addition, the extensive cutting challenged by the complaint has not been directed at infestations around colony trees. The cutting to protect colonies has been and, by all indications, will continue to be very limited. No colonies have been identified in three of the wilderness areas and there are only about 15-20 in the fourth. The record suggests that there are only a handful of colonies in this area that may be threatened by a heavy infestation that could lead to spot cutting. Costa Affd. para. 6.
Finally, whenever cutting of an infestation around a colony occurs the process is controlled by guidelines developed by the Fish and Wildlife Service as part of its extensive program developed to protect the red-cockaded woodpecker. These guidelines include restrictions on the amount of area that may be cut and the use of chemical treatments. See Cooke Affd., Ex. D, Wildlife Habitat Management Handbook, § 420.39b (1985).
As the government points out the beetle is voracious and will not obey a court injunction. Consequently, concern for the public's interest in preserving the red-cockaded woodpecker suggests that cutting should be allowed to go forward for this limited purpose. While many scientific questions remain unanswered and more information will be developed when a full NEPA study is made, prevention of cutting to remove infestations of pine beetles immediately around colony trees of the red-cockaded woodpecker in conformity with Fish and Wildlife Service guidelines is unnecessary to assure preservation of the wilderness areas and favors this endangered species. The potential harm to the Fish and Wildlife Service's efforts to ensure the survival of the woodpecker and the public interest in protecting this endangered species indicates that limited spot cutting to save active woodpecker colonies should not be enjoined.
Accordingly, a preliminary injunction will be entered on plaintiff's NEPA claim to enjoin cutting in wilderness areas but will be limited in recognition of the special public concerns in protecting the red-cockaded woodpecker. Plaintiffs' request for a preliminary injunction under the Endangered Species Act will be denied since they have failed to show a likelihood of success on the merits and have not shown that equitable considerations justify enjoining cutting to save woodpecker colonies. An appropriate preliminary injunction conforming to this memorandum is attached.
It appearing that for the reasons set forth in the accompanying Memorandum the motion for preliminary injunction filed herewith should be granted in part, it is
ORDERED that the defendants, their agents, representatives and others acting on their behalf are enjoined until further order of this Court from cutting any trees pursuant to the southern pine beetle control program in the four wilderness areas known as Black Creek Wilderness area, Leaf Wilderness area, Caney Creek Wilderness area and Kisatchie Hills Wilderness area, provided that the prohibition of this preliminary injunction does not apply to cutting to control beetle infestations in or near active red-cockaded woodpecker colony sites if said cutting is
(a) undertaken for the sole purpose of preventing harm to the red-cockaded woodpeckers, and
(b) conducted in strict accordance with the guidelines presently established by the Fish and Wildlife Service's Wildlife Habitat Management Manual, and