Sierra Club v. Martin , 110 F.3d 1551 ( 1997 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-8840.
SIERRA CLUB, The Wilderness Society, Georgia Forestwatch, Inc.,
The Armuchee Alliance, Rabun County Coalition to Save the Forest,
Inc., Friends of Georgia, Inc., Plaintiffs-Appellees,
v.
George G. MARTIN, in his official capacity as Forest Supervisor
of the Chattahoochee and Oconee National Forests, Robert C. Joslin,
Regional Forester of the United States Forest Service for Region
Eight, United States Forest Service, Bert Thomas, Cook Brothers
Lumber Company, Parton Lumber Co., Inc., Thrift Brothers Lumber
Co., Inc., Defendants-Appellants.
April 29, 1997.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:96-CV-926-FMH), Frank M. Hull, Judge.
Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior
Circuit Judge.
BLACK, Circuit Judge:
The United States Forest Service (Forest Service) and a group
of timber contractors, including Bert Thomas, Cook Brothers Lumber
Company, Inc., Parton Lumber Company, Inc., and Thrift Brothers
Lumber Company, Inc. (collectively Timber Contractors), appeal the
issuance of a preliminary injunction on May 8, 1996, ordering the
Forest Service to stop all timber cutting and road building
activities in seven timber projects in the Chattahoochee and Oconee
National Forests in Georgia (collectively Chattahoochee). We
reverse.
I. BACKGROUND
A. The Litigation
In 1991, pursuant to the Chattahoochee's land and resource
management plan, the Forest Service proposed to sell the rights to
1
cut timber on seven parcels of land. The seven parcels—Dunaway
Gap, Tibbs Trail, Upper Swallows Creek, Compartment 59, Compartment
05, Big Net, and South Corn Ridge—encompass approximately 2,103
acres out of the 846,000 acres that comprise the Chattahoochee.
Each parcel was subject to a separate, formal environmental
assessment in which an interdisciplinary team of Forest Service
employees, aided by public comment, considered the proposed sale
and possible alternatives.2 By late 1995, after it was determined
that the proposed projects would have no significant environmental
impact, all seven projects were approved and opened for bids.
On April 17, 1996, a coalition of national and Georgia-based
environmental organizations, including Sierra Club, The Wilderness
Society, Georgia Forestwatch, Inc., The Armuchee Alliance, Rabun
County Coalition to Save the Forest, Inc., and Friends of Georgia,
Inc. (collectively Sierra Club), filed an action challenging the
Forest Service's decision to proceed with the timber projects.3
1
The Forest Service's administration of the National Forests
is governed by the National Forest Management Act (NFMA), 16
U.S.C. §§ 1600 et seq., under which the Forest Service has a duty
to "develop, maintain, and, as appropriate, revise land and
resource management plans for units of the National Forest
System." 16 U.S.C. § 1604(a).
2
The NFMA directs that land and resource management plans be
prepared in accordance with the National Environmental Policy Act
(NEPA), 42 U.S.C. §§ 4321 et seq., which in turn requires the
Forest Service to prepare environmental impact statements. 16
U.S.C. § 1604(g)(1).
3
Sierra Club (or one of the particular environmental
organizations) had previously obtained administrative review of
each project. At the time of the complaint, timber harvesting
and road building activity had begun on two of the seven timber
projects. Road building, but no timber harvesting, had begun on
a third project. One timber project had been sold, but not yet
implemented. The remaining three projects had not yet been
offered for sale.
The complaint alleged that the decision of the Forest Service to
allow timber cutting, logging, clearcutting, road building, and
related activities in the seven parcels violated the Clean Water
Act (CWA), 33 U.S.C. §§ 1251-1387, the Migratory Bird Treaty Act
(MBTA), 16 U.S.C. §§ 703-712,4 the National Forest Management Act
(NFMA), 16 U.S.C. §§ 1600 et seq., and their implementing
regulations. Sierra Club sought a temporary restraining order, a
preliminary injunction, and a permanent injunction. It also sought
a declaratory judgment that the Forest Service was in violation of
the CWA, MBTA, and the NFMA. On April 19, 1996, in lieu of the
district court's granting a temporary restraining order, Sierra
4
In relevant part, the MBTA provides:
Unless and except as permitted by regulations made
as hereinafter provided in this subchapter, it shall be
unlawful at any time, by any means or in any manner, to
pursue, hunt, take, capture, kill, attempt to take,
capture, or kill, possess, offer for sale, sell, offer
to barter, barter, offer to purchase, purchase, deliver
for shipment, ship, export, import, cause to be
shipped, exported, or imported, deliver for
transportation, transport or cause to be transported,
carry or cause to be carried, or receive for shipment,
transportation, carriage, or export, any migratory
bird, any part, nest, or egg of any such bird, or any
product, whether or not manufactured, which consists,
or is composed in whole or in part, of any such bird or
any part, nest, or egg thereof, included in the terms
of the conventions between the United States and Great
Britain for the protection of migratory birds concluded
August 16, 1916 (39 Stat. 1702), the United States and
the United Mexican States for the protection of
migratory birds and game mammals concluded February 7,
1936, the United States and the Government of Japan for
the protection of migratory birds and birds in danger
of extinction, and their environment concluded March 4,
1972 and the convention between the United States and
the Union of Soviet Socialist Republics for the
conservation of migratory birds and their environments
concluded November 19, 1976.
16 U.S.C. § 703.
Club and the Forest Service stipulated to a 20-day cessation of all
timber-cutting and road-building activities.
B. The Preliminary Injunction
On May 8, 1996, the district court ordered the Forest Service
to "cause the cessation of all timbercutting and roadbuilding
activities," "not permit the commencement or continuation of those
activities," and "not offer any of those projects that are unsold"
through September 15, 1996. The district court premised the
preliminary injunction on a finding that there was a substantial
likelihood that Sierra Club would ultimately prevail on the merits
of its claim that the Forest Service's actions violated the MBTA,
and reserved ruling on Sierra Club's remaining claims. On June 17,
1996, the district court allowed Timber Contractors, who had
existing contracts to purchase timber in four of the seven parcels,
to intervene. Shortly thereafter, the Forest Service and Timber
Contractors instituted the present appeal challenging the district
court's order issuing the MBTA-based preliminary injunction.5
C. The MBTA Claim
The Chattahoochee is home to numerous species of neotropical
migratory birds, which typically winter in Mexico or the Caribbean
and spend the nesting season in the Chattahoochee. These birds
include species designated for protection under the MBTA. Sierra
5
On September 15, 1996, the MBTA-based preliminary
injunction expired. Two days later, the district court issued
another preliminary injunction with the same scope that would
remain in effect until trial. This second preliminary injunction
was based on the Forest Service's violations of the NEPA, the
NFMA, the regulations thereunder, and the Chattahoochee's land
and resource management plan. The present appeal does not
concern this NEPA- and NFMA-based preliminary injunction.
Club asserted that the Forest Service's timber contracts violate
the MBTA because they allowed timber cutting during the migratory
bird nesting season and that tree cutting during nesting season
would directly kill at least 2,000 to 9,000 neotropical migratory
birds.6 The Forest Service did not dispute that cutting down a
7
tree with an active nest directly killed migratory birds. The
district court held that the Forest Service's actions violated the
MBTA because "thousands of migratory birds will be killed directly
by cutting down trees with nests and juvenile birds in them."
Relying on Chrysler Corp. v. Brown, 441 U.S. 281, 99 S. Ct. 1705, 60
L. Ed. 2d 208 (1979), the district court concluded that Sierra Club
could obtain injunctive relief under the Administrative Procedure
Act (APA), 5 U.S.C. §§ 701-706, for the Forest Service's violation
of the MBTA, even though the MBTA does not create a private right
of action.8 The district court's preliminary injunction extended
only through September 15, 1996, the date a Forest Service
memorandum identified as the time after which timber cutting would
have "no significant effect on the nesting success of migratory
6
Sierra Club (or one of the particular plaintiffs) had
raised MBTA issues in the administrative appeal of four of the
seven timber projects.
7
A Forest Service memorandum noted that tree cutting during
nesting season would kill migratory birds: "The loss of
individual nests and or birds is an un-avoidable cost of any type
of land management activity, whether it be agricultural plowing,
mowing, road maintenance, lawn maintenance, clearing land for
construction, or cutting trees."
8
The district court also held that Sierra Club had standing.
birds."9
On appeal, the Forest Service asserts that the MBTA is a
criminal statute which does not address formal agency action;
therefore, notwithstanding the APA's provisions for judicial
review, there is no statutory violation for which a remedy would be
appropriate. Sierra Club counters that it states a claim under the
APA, with the MBTA serving as the predicate law with which the
Forest Service's actions are not in compliance.10
II. STANDARD OF REVIEW
We apply a mixed standard when reviewing the grant or denial
of a preliminary injunction:
We review the factfindings of the district court, to the
extent they are properly presented on appeal, under the
clearly erroneous standard. The district court's application
of the law is subject to de novo review. We review the
district court's grant of injunctive relief for abuse of
discretion, meaning we must affirm unless we at least
determine that the district has made a "clear error of
judgment," or has applied an incorrect legal standard.
SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d 1325,
1333 (11th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 79, 136
L. Ed. 2d 37 (1996) (citations omitted).
III. DISCUSSION
A. Mootness
9
The Forest Service memorandum stated: "Crop Tree Release
conducted between September 15 and March 15 will have no
significant effect on the nesting success of migratory birds."
It appears that the district court interpreted "crop tree
release" to mean any and all timber cutting.
10
In addition, Timber Contractors assert that (1) the
district court misinterpreted the MBTA to prohibit timber
harvesting activities and (2) the district court abused its
discretion in issuing a preliminary injunction. We need not
address these arguments because we hold that no violation of the
MBTA could occur by any formal action of the Forest Service.
Although the preliminary injunction at issue has already
expired, this appeal is not moot to the extent that the injunction
represents a continuing controversy capable of repetition, yet
evading review. To satisfy the "capable of repetition, yet evading
review" exception to mootness, the Supreme Court has required that
(1) there be a reasonable expectation or a demonstrated probability
that the same controversy will recur involving the same complaining
party, and (2) the challenged action is in its duration too short
to be fully litigated prior to its cessation or expiration. Murphy
v. Hunt, 455 U.S. 478, 482-83, 102 S. Ct. 1181, 1183-84, 71 L. Ed. 2d
353 (1982); National Solid Wastes Mgmt. Ass'n v. Alabama Dep't of
Envtl. Mgmt., 924 F.2d 1001, 1003 (11th Cir.), cert. denied, 501
U.S. 1206, 111 S. Ct. 2800, 115 L. Ed. 2d 973 (1991).
The seasonal nature of migratory bird nesting makes it likely
that the Forest Service will face another MBTA injunction at the
start of the next nesting season. In spite of the expedited nature
of the present appeal, the four-month term of the preliminary
injunction was too short to allow for appellate review prior to its
expiration. Any future MBTA-based injunction in this lengthy and
complex litigation will also be too short to be fully litigated
prior to its expiration. As a result, the expired MBTA-based
preliminary injunction does not represent a moot controversy.
B. The Migratory Bird Treaty Act
Sierra Club claims a right to judicial review of the Forest
Service's formal actions under the APA, 5 U.S.C. § 702.11 As a
11
5 U.S.C. § 702 provides, in relevant part: "A person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
procedural statute, the APA does not expand the substantive duties
of a federal agency, but merely provides the framework for judicial
review of agency action. Accordingly, "[t]here is no right to sue
for a violation of the APA in the absence of a "relevant statute'
whose violation "forms the legal basis for [the] complaint.' " El
Rescate Legal Servs., Inc. v. Executive Office of Immigration
Review, 959 F.2d 742, 753 (9th Cir.1991) (quoting Lujan v. National
Wildlife Fed'n, 497 U.S. 871, 883, 110 S. Ct. 3177, 3186, 111
L. Ed. 2d 695 (1990)); see also Preferred Risk Mut. Ins. Co. v.
United States, 86 F.3d 789, 792 (8th Cir.1996) ("[T]he plaintiff
must identify a substantive statute or regulation that the agency
action had transgressed and establish that the statute or
regulation applies to the United States."). Section 706, which
provides the scope of review, confirms this understanding. It
provides, in relevant part, that a reviewing court shall:
(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 (emphasis added). An agency's actions could only
fail to be "in accordance with law" when that agency's actions are
subject to that law. The issue then is whether the Forest
Service's actions are subject to the MBTA. That is, the MBTA's
prohibitions must be addressed to the Forest Service's formal
relevant statute, is entitled to judicial review thereof."
Section 702 does not itself confer jurisdiction to review agency
action. Califano v. Sanders, 430 U.S. 99, 107, 97 S. Ct. 980,
985, 51 L. Ed. 2d 192 (1977). Jurisdiction stems from 28 U.S.C. §
1331, which provides: "The district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States."
actions in order for the Forest Service to be capable of violating
the MBTA. See Chrysler v. Brown, 441 U.S. 281, 298-301, 99 S. Ct.
1705, 1716-17, 60 L. Ed. 2d 208 (1979) (determining whether the Trade
Secrets Act, 18 U.S.C. § 1905, addresses formal agency action).
The MBTA, by its plain language, does not subject the federal
government to its prohibitions. The MBTA makes it unlawful to
"take" or "kill" birds. The penalties for violating its
prohibitions are set forth in 16 U.S.C. § 707, which provides that
a "person, association, partnership, or corporation" will be guilty
of a misdemeanor or felony and subject to fine or imprisonment or
both for violating the MBTA.12 Sierra Club nonetheless asserts that
because the prohibitions are stated broadly—that is, "it is
unlawful" to "take" or "kill"—it should be unlawful for anybody,
including federal agencies, to "take" or "kill" migratory birds.
12
Section 707 provides, in relevant part:
(a) Except as otherwise provided in this section,
any person, association, partnership, or corporation
who shall violate any provisions of said conventions or
of this subchapter, or who shall violate or fail to
comply with any regulation made pursuant to this
subchapter shall be deemed guilty of a misdemeanor and
upon conviction thereof shall be fined not more than
$500 or be imprisoned not more than six months, or
both.
(b) Whoever, in violation of this subchapter,
shall knowingly—
(1) take by any manner whatsoever any migratory
bird with intent to sell, offer to sell, barter or
offer to barter such bird, or
(2) sell, offer for sale, barter or offer to
barter, any migratory bird shall be guilty of a
felony and shall be fined not more than $2,000 or
imprisoned not more than two years, or both.
16 U.S.C. § 707 (emphasis added).
The MBTA, however, should be read as a whole to derive its plain
meaning. See Beecham v. United States, 511 U.S. 368, 371-72, 114
S. Ct. 1669, 1671, 128 L. Ed. 2d 383 (1994). The MBTA is a criminal
statute making it unlawful only for persons, associations,
partnerships, and corporations to "take" or "kill" migratory birds.
Moreover, there is no expression of congressional intent which
would warrant holding that "person" includes the federal
government, thus enabling the United States to prosecute a federal
agency, or a federal official acting in his official capacity, for
taking or killing birds and destroying nests in violation of the
MBTA. Congress has demonstrated that it knows how to subject
federal agencies to substantive requirements when it chooses to do
so. For example, the term "person" in the Endangered Species Act
is defined to include "any officer, employee, agent, department, or
instrumentality of the Federal Government." 16 U.S.C. § 1532(13).
The historical context of the MBTA's enactment further
demonstrates that it does not apply to the federal government. In
1897, Congress established the National Forest System " "[t]o
conserve the water flows, and to furnish a continuous supply of
timber for the people.' " United States v. New Mexico, 438 U.S.
696, 707, 98 S. Ct. 3012, 3017-18, 57 L. Ed. 2d 1052 (1978) (quoting
30 Cong.Rec. 967 (1897)). In light of that purpose, it is
difficult to imagine that Congress enacted the MBTA barely twenty
years later intending to prohibit the Forest Service from taking or
killing a single migratory bird or nest "by any means or in any
manner" given that the Forest Service's authorization of logging on
federal lands inevitably results in the deaths of individual birds
and destruction of nests. The application of the MBTA to the
federal government would have severely impaired the Forest
Service's ability to comply with the congressional directive to
manage the national forests for timber production.
Congress's subsequent enactment of legislation relating to
management of the National Forest System buttresses the conclusion
that the MBTA does not apply to the federal government. In the
NFMA, Congress expressed its intent that the Forest Service manage
forests for multiple uses, including timber production. See 16
U.S.C. § 528 ("It is the policy of the Congress that the national
forests are established and shall be administered for outdoor
recreation, range, timber, watershed, and wildlife and fish
purposes."). Through the NFMA, Congress has prescribed the
procedures the Forest Service is to follow and the factors it is to
consider in making land management decisions. See 16 U.S.C. §
1604. In the process of complying with the NFMA, NEPA, and their
implementing regulations, the Forest Service ensures that the
impact of land management on migratory bird populations is
considered in the context of ensuring viability of native species.
36 C.F.R. § 219.19. The viability regulation requires that, in the
context of multiple use planning, habitat be provided within the
forest to support a minimum number of reproductive individuals in
order to "maintain viable populations of existing native and
desired non-native vertebrate species in the planning area." Id.
The Forest Service's compliance with the viability regulation is
subject to judicial review in actions challenging timber sales
brought under the APA. See, e.g., Inland Empire Public Lands
Council v. United States Forest Service, 88 F.3d 754, 759-63 (9th
Cir.1996); Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401, 1404
(9th Cir.1996).13 Congress intended that the Forest Service follow
the NFMA's regulatory process, rather than the MBTA's criminal
prohibitions, in addressing conservation of migratory birds.
IV. CONCLUSION
The MBTA does not apply to the federal government. As no
violation of the MBTA could occur by any formal action of the
Forest Service, the Forest Service may not be enjoined under the
APA.
REVERSED.
13
Sierra Club has asserted a claim alleging that the Forest
Service has failed to comply with the viability regulation, but
that claim is not a part of this appeal.