Data source
Date of text
06 Aug 1997
Original language


Type of text
National - higher court
Court name
United States Court of Appeals, Eighth Circuit

Using the Wild and Scenic Rivers Act (WRSA) (16 U.S.C. §§1271-1287), Congress designated six rivers within the Ozark National Forest for special protection. The US Forest Service was given three years to develop comprehensive management plans for the rivers. Before the three years were up, and before the Forest Service released their management plans, they held some timber sales. Winning bidders would be allowed to conduct logging activities in the National Forest, potentially endangering the rivers. Newton County Wildlife Association, the Sierra Club, and certain individuals (collectively "the Wildlife Association") sued the United States Forest Service and four of its employees (collectively the "Forest Service") seeking judicial review of four timber sales in the Ozark National Forest. Parties favoring timber harvesting intervened to support the Forest Service. The Wildlife Association filed sequential motions to preliminarily enjoin the sales as violative of the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. §§ 1271 et seq., and the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703 et seq. The district court separately denied each motion, and the Wildlife Association separately appealed those orders. The Appeal Court consolidated the appeals and affirmed.
The Appellate Court found that §1274(d)(1) did not mandate completion of management plans before approving timber sales. The Court found that the Forest Service has substantial discretion in deciding how to meet its obligations under WSRA.The Court found that since the timber sales were outside of the boundaries of the six scenic rivers, the WRSA could not be used to enjoin the activities, despite the fact the activities outside of the boundaries could have harmful effects inside the boundaries.
The court of appeals rejected the attempt to place approved timber sales under the constraints of the MBTA even though extensive logging activities would disrupt nesting migratory birds, inevitably resulting in the death of at least some protected birds. It held that to agree with this proposition would be to stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, which indirectly results in the death of migratory birds. The loss of migratory birds as a result of timber sales of the type at issue in this case do not constitute a "taking" or "killing" within the meaning of the MBTA; MBTA terms "take" or "kill" meant physical conduct of sort engaged in by hunters and poachers, and MBTA did not appear to apply to actions of federal government agencies.