48 F.3d 1495 (9th Cir. 1995), 93-36013, Douglas County v. Babbitt

Docket Nº:93-36013, 93-36016.
Citation:48 F.3d 1495
Party Name:DOUGLAS COUNTY, a political subdivision of the State of Oregon, Plaintiff-Appellee. v. Bruce BABBITT, Secretary of the Interior, United States Department of the Interior, Defendant-Appellant. DOUGLAS COUNTY, a political subdivision of the State of Oregon, Plaintiff-Appellee, v. Bruce BABBITT, Defendant, and HEADWATERS, INC.; Umpqua Valley Audubon S
Case Date:February 24, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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48 F.3d 1495 (9th Cir. 1995)

DOUGLAS COUNTY, a political subdivision of the State of

Oregon, Plaintiff-Appellee.


Bruce BABBITT, Secretary of the Interior, United States

Department of the Interior, Defendant-Appellant.

DOUGLAS COUNTY, a political subdivision of the State of

Oregon, Plaintiff-Appellee,


Bruce BABBITT, Defendant,


HEADWATERS, INC.; Umpqua Valley Audubon Society,


Nos. 93-36013, 93-36016.

United States Court of Appeals, Ninth Circuit

February 24, 1995

Argued and Submitted Jan. 9, 1995.

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[Copyrighted Material Omitted]

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Albert M. Ferlo, Jr., Environmental and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendant-appellant.

Ronald S. Yockim, Cegavske, Johnston, Yockim & Associates, Roseburg, OR, for plaintiff-appellee.

Todd D. True, Sierra Club Legal Defense Fund, Inc., Seattle, WA, for defendants-intervenors-appellants.

Scott W. Horngren, Haglund & Kirtley, Portland, OR, and Steven P. Quarles, Crowell & Moring, Washington, DC, for Timer Amici.

Appeals from the United States District Court for the District of Oregon.

Before: PREGERSON and TROTT, Circuit Judges, and FITZGERALD, Senior District Judge. [*]

PREGERSON, Circuit Judge:


Secretary of the Interior Bruce Babbitt (the Secretary) and intervenors, Headwaters, Inc. and Umpqua Valley Audubon Society (Headwaters), appeal the district court's grant of summary judgment in favor of Douglas County, Oregon (the County), in the County's action alleging that the Secretary failed to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Sec. 4321 et seq., in designating certain federal land as critical habitat for the Northern Spotted Owl pursuant to the Endangered Species Act of 1973 (ESA), 16 U.S.C. Sec. 1533(a)(3). The district court granted the County permanent injunctive relief, setting aside the critical habitat designation, but then stayed its order pending appeal. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part, reverse in part, and remand for consideration.


  1. The Statutory Framework.

    1. The Endangered Species Act.

      Under Sec. 4(a) of the ESA, 16 U.S.C. Sec. 1533(a), the Secretary 1 may list a species as threatened or endangered. When the Secretary lists a species, he or she must also designate a "critical habitat" for that species. 16 U.S.C. Sec. 1533(a)(3). The ESA defines "critical habitat" as the geographical areas "essential to the conservation of the species." 16 U.S.C. Sec. 1532(5)(A). The Secretary must decide what area to designate as a critical habitat "on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. Sec. 1533(b)(2). The ESA requires the Secretary to follow a clear set of procedures for public notification and comment after he or she designates a critical habitat. 16 U.S.C. Sec. 1533(b)(4)-(6). The effect of designating an area as a critical habitat is that federal actions that are likely to destroy or disrupt the habitat are prohibited. 16 U.S.C. Sec. 1536(a)(2).

    2. The National Environmental Policy Act.

      Section 102(2)(C) of NEPA, 42 U.S.C. Sec. 4332(2)(C), requires "to the fullest extent possible," that "all agencies of the Federal Government" shall

      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

      (i) the environmental impact of the proposed action,

      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

      (iii) alternatives to the proposed action,

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      (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

      The above describes the requirements for an environmental impact statement (EIS). The EIS is "a procedural obligation designed to assure that agencies give proper consideration to the environmental consequences of their actions." Merrell v. Thomas, 807 F.2d 776, 777-78 (9th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 145, 98 L.Ed.2d 101 (1987). The EIS also insures that the public is informed about the environmental impact of proposed agency actions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). An environmental assessment (EA) is a document used to decide whether the environmental impact of a proposed action is significant enough to warrant preparation of an EIS. See 42 U.S.C. Sec. 4332(2)(E); 40 C.F.R. Sec. 1508.9 (1994).

  2. Facts.

    On June 26, 1990, in response to litigation brought by a number of environmental groups, Northern Spotted Owl v. Hodel, 716 F.Supp. 479 (W.D.Wash.1988), the Secretary listed the Northern Spotted Owl as a threatened species pursuant to the ESA. 55 Fed.Reg. 26,114 (1990). In his final rule, the Secretary explained that he could not designate a critical habitat based only on the available information. Plaintiffs in the litigation sought an order compelling the Secretary to begin the designation process, and the district court ordered the Secretary to publish a proposed critical habitat designation by April 30, 1991. The court also ordered the Secretary to publish a final designation rule "at the earliest possible time permitted under the appropriate regulations." Northern Spotted Owl v. Lujan, 758 F.Supp. 621, 630 (W.D.Wash.1991).

    On May 6, 1991, the Secretary published an initial proposed regulation designating 11,639,195 acres of federal, state and private lands as "proposed critical habitat." 56 Fed.Reg. 20,816 (1991). The Secretary also announced his intention to revise the designation after receiving comments on the initial proposal. Id. After proposing the critical habitat, the Secretary held four public hearings at which 364 people testified on the proposal.

    As part of his May 6, 1991 announcement, the Secretary concluded that he did not need to prepare an EA (and therefore an EIS) in conjunction with the designation. 56 Fed.Reg. 20,824 (1991). The Secretary referred to a policy, that he first announced in 1983, that determinations made under Sec. 4 of the ESA were not subject to NEPA. The 1983 policy was based primarily on (1) the Sixth Circuit's holding in Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir.1981), that decisions to list species as threatened or endangered under the ESA were exempt from NEPA, and (2) a letter from the Council on Environmental Quality (CEQ) whose "interpretation of NEPA is entitled to substantial deference," Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979), that urged the Secretary to cease preparing EISs in conjunction with actions under Sec. 4 of the ESA. 48 Fed.Reg. 49,244 (1983). On May 30, 1991 Douglas County submitted formal comments to the Secretary, alleging that the Secretary had failed to comply with NEPA.

    The Secretary issued a revised proposed designation of critical habitat on August 13, 1991. 56 Fed.Reg. 40,002 (1991). The revised designation reduced the critical habitat to 8,240,160 acres by eliminating all privately owned land and most state owned land. The Secretary held another sixty day comment period on the proposed designation and announced another four public hearings. The revised proposal affirmed the Secretary's decision that an EA was not necessary.

    On January 15, 1992, the Secretary issued the final designation of critical habitat. 57 Fed.Reg. 1,796 (1992). The final designation includes 6,887,000 acres, all of which is federal land. The final rule includes a lengthy analysis of all the factors that led to the final critical habitat designation.

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    Douglas County filed this suit in United States District Court for the District of Oregon on September 25, 1991, seeking declaratory and injunctive relief. The County's primary allegation is that the Secretary failed to comply with NEPA in designating a critical habitat. The Secretary challenged Douglas County's standing to bring the action. All parties filed motions for summary judgment after publication of the final designation.

    The district court found that the County had standing to pursue its claims. The court granted summary judgment on behalf of the County, finding that NEPA did apply to the Secretary's decision to designate a critical habitat. See Douglas County v. Lujan, 810 F.Supp. 1470, 1484-85 (D. Oregon 1992). 2 The district court entered an order setting aside the final designation of critical habitat until the Secretary complies with NEPA. The court then, sua sponte, stayed the order pending appeal.


    On appeal, the Secretary and Headwaters argue that the district court erred when it ruled in favor of the County. The Secretary asserts that the County does not have standing and, on the merits, argues that NEPA does not apply to designations of critical habitat because the ESA procedures have displaced the NEPA procedures. Headwaters argues that an EIS is not required because the federal action at issue does not change the natural, physical environment, and because requiring an EIS would frustrate the purposes of both NEPA and the ESA. Appellee Douglas County and amici Northwest Forest Resource Council, Douglas Timber Operators, Southern Forest Products Association, Southern Timber Purchasers Council, and American Forest & Paper Association (Timber), respond to these claims.

  3. Standing.

    1. Standard of Review.

      We review questions of standing de novo. See Wedges/Ledges of Cal., Inc. v. City...

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