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SIERRA CLUB v. LYNG

June 16, 1987

Sierra Club and The Wilderness Society, Plaintiffs,
v.
Richard E. Lyng, et al., Defendants


Gesell, U.S.D.J.


The opinion of the court was delivered by: GESELL

GESELL, U.S.D.J.

 By their complaint filed July 12, 1985, Sierra Club and The Wilderness Society challenged the legality of a program initiated by the United States Forest Service under the direction of the Secretary of Agriculture to control infestations of the Southern Pine Beetle in federally designated Wilderness Areas located in Arkansas, Louisiana and Mississippi. *fn1" They claimed that the program was being conducted without initial development of an Environmental Impact Statement ("EIS"), in violation of the National Environmental Policy Act, 42 U.S.C. §§ 4321-4361 (1982); that it violated the Endangered Species Act, 16 U.S.C. §§ 1531-1543 (1982), by harming the Red-Cockaded Woodpecker, an endangered species which inhabits some of these areas; and that the extensive tree-cutting and chemical-spraying campaign involved was prohibited under Section 2 of the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1982), which declares our national policy to protect designated Wilderness Areas and their natural ecology.

 By Memorandum and Order of July 31, 1985, the Court preliminarily enjoined the program in the areas involved, subject only to an exception permitting limited cutting of trees immediately surrounding active woodpecker colony sites to protect the woodpeckers, under closely monitored conditions. See Sierra Club v. Block, 614 F. Supp. 488 (D.D.C. 1985). Adjudication of plaintiffs' other claims was deferred pending development by the Forest Service of the Department of Agriculture of an EIS on the program. On March 6, 1987, under the direction of the Secretary of Agriculture, the Chief of the Forest Service published a three-volume Final Programmatic EIS ("FEIS") on the Service's program for short-term beetle control, and a Record of Decision ("ROD") reviewing the control alternatives considered and indicating the final agency action was published on April 6, 1987. *fn2"

 The case is now before the Court for final disposition. Defendants have moved for summary judgment on all remaining issues. Plaintiffs do not oppose defendants' motion with respect to the National Environmental Policy Act claim, and the Endangered Species Act claim is moot, thus leaving only the Wilderness Act claim for discussion. *fn3" They have cross-moved for summary judgment on this claim, and the Court has heard argument on the motions. Amicus curiae Louisiana Forestry Association has filed an opposition to plaintiffs' motion.

 The Secretary's ROD greatly narrows the scope of the beetle control program in the Wilderness Areas from that in effect when this litigation began. The Forest Service previously authorized the cutting of thousands of acres of wilderness pineland in an attempt, among other things, to create "buffer" areas against the spread of beetles -- a process seriously unsettling to the values underlying the Wilderness Act. See Sierra Club v. Lyng, 662 F. Supp. 40, slip. op. at 6 (D.D.C. 1987); Sierra Club v. Block, supra, 614 F. Supp. at 490, 493.

 The Forest Service ultimately adopted the fourth of nine alternatives considered in detail in the FEIS, relating to beetle-control action within the Wilderness Areas. *fn4" Control efforts will be made under the program only: (1) to protect established woodpecker colony sites in immediate foraging areas; *fn5" and (2) to protect "State and private lands, and high value Federal forest resources," *fn6" excluding federal land being used for commercial timber operations. This alternative contemplates "spot-control" techniques confining cutting in the Wilderness Areas to edges contiguous to neighboring property. *fn7" Cutting will be allowed only if a spot infestation of beetles is located within one-quarter mile of bordering non-wilderness lands, and a biological evaluation predicts the spot will expand into neighboring lands to be protected and cause unacceptable damage. A number of other cautionary factors must be considered in each site-by-site specific analysis prior to cutting. ROD, at 6-7.

 The Forest Service emphasizes that under this selective approach, beetle control will be the exception; natural forces will be allowed "to play their role in the wilderness ecosystem," and "it is only when these natural forces are predicted to threaten an essential [woodpecker] colony or cause unacceptable damage to specific resources adjacent to the wilderness that control in wilderness may be taken." ROD, at 1. It is emphasized that control efforts will be made only after detailed site-specific analysis.

 Decisions on boundary cutting will take into account both the value of adjacent land and of the wilderness qualities damaged by control methods, and must be premised on a reasonable prediction that control will be effective. The Court has been assured, at argument on the motions, that no control efforts will be initiated in a Wilderness Area unless the owner of adjacent land to be protected has taken reasonable steps on the adjacent land to combat spread of the beetle and will continue such efforts. The public will be kept informed of control efforts and may object to site-specific control decisions. ROD, at 12-13.

 The action of the Secretary is taken pursuant to Section 4(d)(1) of the Wilderness Act, 16 U.S.C. § 1123(d)(1) (1982), which authorizes the Secretary to carry out "such measures [within Wilderness Areas] . . . as may be necessary in control of fire, insects, and diseases, subject to such conditions as the Secretary deems desirable." In an opinion issued January 14, 1987, interpreting this Section, Sierra Club v. Lyng, supra, the Court held that although it grants the Secretary wide discretion in managing Wilderness Areas considered in isolation, that discretion is limited where Wilderness Areas are being adversely affected solely for the benefit of adjacent property interests. It noted that in such circumstances "the Secretary is not managing the wilderness but acting contrary to wilderness policy for the benefit of outsiders." Id. at 3-5. Although clearly permitted to take such action, as he has with respect to the beetle, the Court viewed the Act as imposing on the Secretary an affirmative burden of justifying his actions "by demonstrating they are necessary to effectively control the threatened outside harm that prompts the action being taken." Id. at 5-6.

 Plaintiffs do not challenge this interpretation of Section 4(d)(1), but rather persist in urging that the Secretary has not demonstrated that any boundary cutting of Wilderness Areas for the benefit of adjacent state and private timberland is "necessary" within the meaning of the Section.

 Plaintiffs argue that no action by the Secretary can be deemed "necessary" unless the Secretary has first proven by scientific evidence that the contemplated spot-control cutting will be further effective in accomplishing the desired objectives. They seize on a dictionary definition of "necessary," arguing that it can only mean "essential to a desirable . . . end," and urge that if control measures intruding on wilderness values have not been scientifically proven effective, by definition they cannot be necessary -- i.e., essential -- to control beetles.

 Plaintiffs suggest the Secretary has little or no basis for concluding that the various spot-control methods that may be employed in the program will have any significant effect in controlling the spread of beetles to contiguous areas, and they attack past studies of control methods as scientifically unsophisticated, emphasizing that only area-wide control efforts can check the beetles. They note that in the regions of the country where spot control is contemplated under the program, beetles are generally present in both wilderness and non-wilderness areas, in varying degrees. Thus, the beetle does not present a natural hazard present only in Wilderness Areas that uniquely threatens uninfested adjacent lands; rather, it is indigenous to pineland areas generally, with beetles spreading back and forth between wilderness and non-wilderness land. Plaintiffs conclude that if control methods are adopted at all, they must be designed to check spread of the beetle in an entire area of pineland, because there is no other way of scientifically ensuring that even successful spot control applied in the border of a Wilderness Area will have lasting protective benefit to adjacent lands.

 The degree of effectiveness of the spot-control methods to be employed under the program does remain in doubt. The record establishes considerable differences of opinion among biologists and other scientists studying the problem. The Secretary stresses the narrowness of the control allowed under the program, and the fact that a site-specific analysis must be employed before each control effort is undertaken. He cites numerous prior control efforts as supporting his view that the methods of spot control ...


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