October 20, 2000

Ruling is good news for forestry industry

A ruling by the Fifth Circuit Court of Appeals overturning a U.S. District Court decision should once again allow timber to be cut in Texas national forests.

By Lana Robinson
Field Editor

Late last month, the U.S. Court of Appeals, Fifth Circuit, overturned a U.S. District Court ruling concerning the harvesting of timber from national forests in Texas. The district court ruling in Beaumont in 1997 had a major impact on the logging industry. Apparently, the ruling was overturned based on an administrative law error. Nevertheless, it is good news for the Texas forestry industry.

On August 14, 1997, in response to a lawsuit filed by preservationists, a judge ruled that no more timber could be cut. A number of timber producers were enjoined from completing contracts.

"About 26 contracts had been started," Ron Hufford, Texas Forestry Association executive vice president recalled. "We were able about a month or two later to get the injunction lifted in order to finish what was started. But there were 50 or 60 sales where upfront money had been paid that couldn't be fulfilled. The government worked to try to get the money back, but it took a long time. TFA and the Southern Timber Purchaser Council intervened and appealed to the Fifth Circuit. They heard it a year and a half or two years ago. Two of the judges voted with the district court ruling. One judge ruled against it. He wrote a strong decision that said that the legal system was not acting correctly in their final order as far as enjoining future timber sales."

Full Court rules

According to Hufford, the latest ruling basically vacates the previous Fifth Circuit decision. All 15 judges had a chance to rule. Two judges, who had previously had forestry matters involving the parties before them, recused themselves. On an 8-5 decision, they vacated the earlier decision and it is on its way back to the district court. The Plaintiffs have 90 days to appeal to the Supreme Court.

"It's a good ruling, but the timber producers are going to take inventory. All those sales they had on the books three years ago are going to have to be revisited. We had mills go out of business because the cost of wood went up. The ones that did survive have gone elsewhere for their supply. We have some challenges," Hufford advised, adding: "You put money up and think you've got a timber sale, then the environmentalists take it to court. A businessman can't stay in business. Environmentalists have nothing to lose. They have nothing at stake."

Plaintiffs' goal to halt logging

Hufford suggested the clear intent of the Plaintiffs is to stop all cutting of timber in national forests. As an example, he noted that in the 1980s, environmentalists filed a lawsuit to halt logging in order to protect the endangered Red-cockaded woodpecker, which is native to East Texas. Hufford said the judge, in his ruling to protect the woodpecker, had provided for the Forest Service to manage for the health of the forests. One of the recommended management practices for the benefit of the Red-cockaded woodpecker, which was the basis of the first lawsuit, is to thin forests to a certain density for ideal habitat.

"The Forest Service found that woodpeckers do not like understory hardwood or heavily dense forest. They prefer sparsely populated areas. They want trees with it clean underneath," said Hufford. "When it was announced that was what they planned to do, the preservationists filed another lawsuit to prevent them from cutting any timber, citing other `expert' sources' disagreement with the Forest Service on what makes good habitat."

Timber vital to local economies

The TFA spokesman emphasized the important economic role timber production has in local communities and schools.

"Congressman Jim Turner really picked up the ball and ran with it when this injunction was an issue. He toured the mills, forests, and visited with loggers out of work and held several public forums, to see what he could get done," said Hufford.

Over the past two decades, over 10 percent of public lands have been removed from logging. According to Hufford, 25 percent of timber sales was going back to counties for roads and schools.

"That just dried up in Houston County. There is a bill that's been introduced in the U.S. House and Senate which establishes a floor and guarantees those counties income in years when they have little or no timber sales," Hufford explained. "We (TFA) are behind this bill, but it comes out of the federal budget, and it really doesn't do anything for employment or job opportunities in those communities. Without an incentive to sell the timber, having the government throw money at the problem is really a short-term solution."

The TFA executive vice president suggested a long-term study is needed to determine what citizens want to do with public lands.

"Environmentalists go way out on a limb when they say timber harvesting is below costs. Those timber sale programs—some are below costs, but others made profits. There was $2 to $4 million a year going into communities before logging was halted, and that added jobs to rural communities. You're seeing the results right now of communities suffering without it. They're saying, `We need federal dollars because you've taken our economies away from us,'" Hufford observed.

Hufford said the U.S. Forest Service and the Congress must make up their minds whether or not they want to have a forest-based economy or not.

"They have to send a positive message. The forest service must develop long-range plans. Otherwise they will sit in the courts and judges will run the forests," said Hufford.

The Fifth Circuit Court's next step is to put the order in the form of a court mandate, to be issued by Nov. 13, 2000. Plaintiffs have until Dec. 19, 2000 to stay the mandate pending a petition to the Supreme Court.

"I don't think we're really going to see much activity this year, since the injunction has been in place for three years," said Hufford.