Klamath Siskiyou Wildlands Center v. Boody
| Decision Date | 06 November 2006 |
| Docket Number | No. 06-35214.,06-35214. |
| Citation | 468 F.3d 549 |
| Parties | KLAMATH SISKIYOU WILDLANDS CENTER; Umpqua Watersheds; Cascadia Wildlands Project, Plaintiffs-Appellants, v. Lynda BOODY, in her official capacity as Glendale Field Manager, Defendant, and Bureau of Land Management, an agency of the United States Department of the Interior; Katrina Symons, in her official capacity as Glendale Field Manager; William Haigh, in his official capacity as South River Field Office Manager on the Roseburg District, BLM, Defendants-Appellees, D.R. Johnson Lumber Company, an Oregon corporation, Defendant-intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephanie M. Parent, Pacific Environmental Advocacy Center, Portland, Oregon, and Erin Madden, Portland, Oregon, briefed for the appellants. Ms. Parent argued for the appellants.
Brian Perron, U.S. Department of the Interior, Portland, Oregon, Sue Ellen Wooldridge, Lisa E. Jones, Brian C. Toth, and Anna T. Katselas, U.S. Department of Justice, Washington, D.C., briefed for the government appellees. David C. Shilton, U.S. Department of Justice, Washington, D.C., argued for the government appellees.
Scott W. Horngren and Shay S. Scott, Haglund, Kelley, Horngren, Jones & Wilder LLP, Portland, Oregon, briefed for the intervenor-appellee. Mr. Scott argued for the intervenor-appellee.
Appeal from the United States District Court for the District of Oregon; John P. Cooney, Magistrate Judge, Presiding. D.C. No. CV-03-03124-JPC.
Before DOROTHY W. NELSON, DAVID R. THOMPSON, and RICHARD A. PAEZ, Circuit Judges.
Klamath Siskiyou Wildlands Center, Umpqua Watersheds, and Cascadia Wildlands Project (collectively, "KS Wild") appeal the district court's finding that the Bureau of Land Management's ("BLM's") 2001 and 2003 annual species review decisions regarding the red tree vole were lawful. KS Wild also appeals the district court's finding that the Cow Catcher and Cottonsnake timber sales were valid and should be permitted to go forward. The district court determined that BLM's decisions did not violate the Federal Land Policy & Management Act ("FLPMA") or the National Environmental Policy Act ("NEPA"). We reverse the judgment of the district court and direct the entry of an injunction enjoining the Cow Catcher and Cottonsnake timber sales from going forward.
In 1994, the federal government adopted a comprehensive forest management plan known as the Northwest Forest Plan ("NWFP"). The NWFP amended the resource management plans for many BLM districts, including the Roseburg and Medford districts at issue in this case, by allocating lands amongst several administrative categories throughout 24.4 million acres in the Pacific Northwest.
In addition to the land allocations, the NWFP also established Survey and Manage requirements to provide additional protections for species that might not be adequately protected by the broad-scale land allocations. The NWFP's Survey and Manage requirements protected over 400 species of amphibians, mammals, bryophytes, mollusks, vascular plants, fungi, lichens, and arthropods within the northern spotted owl range. The red tree vole was one of the protected species.
In 2001, BLM and the Forest Service amended the NWFP by issuing the Record of Decision for Amendments to the Northwest Forest Plan ("2001 ROD"). The agencies prepared a Final Supplemental Environmental Impact Statement ("2000 FSEIS") providing evidentiary support and extensive scientific analysis for the 2001 ROD.
The 2001 ROD made two significant changes to the NWFP pertinent to this case. First, it modified the Survey and Manage species protections by expanding from a four-category to a six-category classification system. It assigned the red tree vole to Category C, which requires (1) management of high-priority sites, (2) pre-disturbance surveys, and (3) strategic surveys prior to any agency action that would disturb the species' habitat. Second, the 2001 ROD created the Annual Species Review ("ASR") process, which requires BLM to acquire, evaluate, and apply new information to implement changes or refinements to the Survey and Manage classifications.
On June 14, 2002, after completing its first ASR regarding the red tree vole, BLM issued a memorandum downgrading the red tree vole's Survey and Manage classification from Category C to Category D (the "2001 ASR Decision").1 In contrast to the protections afforded species listed under Category C, BLM is not required to conduct pre-disturbance surveys for species listed under Category D. On December 19, 2003, BLM issued a second memorandum removing the vole's Survey and Manage designation entirely (the "2003 ASR Decision").2
On June 16, 2003, BLM issued an environmental assessment ("EA") for the Cow Catcher timber sale. In accordance with its 2001 ASR Decision downgrading the vole to Category D, BLM did not conduct pre-disturbance surveys for the vole. On August 25, 2003, BLM issued a Finding of No Significant Impact ("FONSI") for the Cow Catcher sale, which was ultimately awarded to D.R. Johnson Lumber Co. ("D.R.Johnson"), the defendant-intervenor in this case.
Also in June, 2003, BLM released an EA for the Cottonsnake timber sale in which BLM acknowledged that if any vole nests existed within the units to be harvested "they would likely be destroyed." On August 28, 2003, BLM issued a FONSI for the Cottonsnake sale, which has not yet been awarded.
On December 30, 2003, KS Wild filed a complaint, seeking to enjoin the Cow Catcher and Cottonsnake timber sales, and to invalidate the ASR Decisions on the grounds that (1) they violated FLPMA, (2) they were invalid under NEPA, and (3) they were the product of arbitrary and capricious agency action. The district court issued a preliminary injunction, and both parties moved for summary judgment. On June 6, 2005, Magistrate Judge Cooney issued his Findings and Recommendations regarding the parties' cross-motion for summary judgment, and on February 21, 2006, the district court issued a final order, adopting the Findings and Recommendations in part, and denying relief on KS Wild's FLPMA, NEPA, and arbitrary and capricious claims. In light of these findings, the court also found no basis upon which to enjoin BLM or D.R. Johnson from going forward with the timber sales. KS Wild timely appealed to this court.
We conclude that the district court erred in granting summary judgment in favor of BLM. The 2001 and 2003 ASR Decisions are invalid under both FLPMA and NEPA, and because we set the decisions aside on these grounds, we need not reach KS Wild's arbitrary and capricious claim.
We review the district court's grant of summary judgment de novo. Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238 (9th Cir.2005). Agency decisions that allegedly violate NEPA and FLPMA are reviewed under the Administrative Procedure Act ("APA"), and may be set aside if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (quoting 5 U.S.C. § 706(2)(A) (2005)).
We must first decide whether two of the appellants, Klamath Siskiyou Wildlands Center and Umpqua Watersheds ("KSWC/UW"), should be estopped from bringing this appeal.3 D.R. Johnson alleges—in an argument not joined by BLM— that KSWC/UW should be estopped on grounds of judicial estoppel and laches. We reject both arguments.
"Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position." Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001). Thus, "an inconsistent factual or legal position is a threshold requirement of the doctrine." United States v. Lence, 455 F.3d 1047, 1051 (9th Cir.2006).
D.R. Johnson argues that in a previous action, Northwest Ecosystem Alliance v. Rey, 2006 WL 44361 (W.D.Wash. Jan.9, 2006), KSWC/UW successfully invalidated a 2004 Record of Decision ("2004 ROD," which temporarily replaced the 2001 ROD) on the basis that the 2001 ROD should remain in effect. D.R. Johnson alleges KSWC/UW should be estopped from arguing in the instant case that the 2001 and 2003 ASR Decisions are unlawful. D.R. Johnson's argument is without merit.
In Rey, KSWC/UW sought to preserve the ASR process, arguing that additional time was needed to give the process a chance to work. However, in the instant case, KS Wild is challenging the ASR Decisions regarding the red tree vole, not the entire ASR process. KSWC/UW argued in Rey that the 2004 ROD, which completely eliminated the Survey and Manage strategy, was not supported by a thorough, reasoned analysis regarding the likely impacts of the decision. See Rey, 2006 WL 44361, at *2. Asserting that the 2001 ROD is an effective forest management strategy is quite different than arguing that all agency actions ostensibly taken pursuant to that strategy are lawful. Moreover, the only reasonable relief that KSWC/UW could seek under the Administrative Procedure Act in Rey was to have the district court reinstate the 2001 ROD. Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir.2005) ().
In Rey KSWC/UW supported the 2001 ROD and the ASR process only insofar as they sought to invalidate the 2004 ROD. Therefore, the record indicates that KSWC/UW have not taken a "clearly inconsistent position" in this action, and judicial estoppel does not apply.
D.R. Johnson's laches argument also fails. To demonstrate laches, a party must establish "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." Apache Survival...
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