659 F.Supp. 1441 (D.Or. 1987), Civ. 86-6504, Oregon Natural Resources Council, Inc. v. United States Forest Service

Docket Nº:Civ. 86-6504
Citation:659 F.Supp. 1441
Party Name:Oregon Natural Resources Council, Inc. v. United States Forest Service
Case Date:May 07, 1987
Court:United States District Courts, 9th Circuit, District of Oregon
 
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Page 1441

659 F.Supp. 1441 (D.Or. 1987)

OREGON NATURAL RESOURCES COUNCIL, INC., Breitenbush Community, Inc., Michael Donnelly, Plaintiffs,

v.

UNITED STATES FOREST SERVICE, James Torrence, Regional National Forester, and Bugaboo Timber Company, Defendants.

Civ. No. 86-6504-BU.

United States District Court, D. Oregon.

May 7, 1987

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Ralph Bradley, Bradley and Gordon, P.C., Eugene, Or., for plaintiffs.

Thomas C. Lee, Asst. U.S. Atty., Robert M. Simmons, Sp. Asst. U.S. Atty., John F. Neupert, Miller, Nash, Wiener, Hager and Carlsen, Portland, Or., for defendants.

JAMES M. BURNS, District Judge.

INTRODUCTION

This is another environmental case. But that phrase is, perhaps, more deceptive than descriptive. Each environmental case is both the same and different. The issues are generally the same, or similar; the scenery, never. The valleys, the peaks, the colors, the trees, the skies, the streams, and the views--all are subtly, or strikingly different.

The centerpiece of the area involved in this case is a river gorge of heart-stopping magnificence. It lies at the bottom of a steep slope of old growth virgin timber; brooding, and presiding over this area is majestic Mt. Jefferson, whose name has been given to the nearby wilderness area. Its beauty is as deep as the determination of the plaintiffs, who seek to protect it by asking me to stop the logging that is about to begin. The strength and solidarity that surround it is matched by the determination of the Forest Service--and its contractor--who believe, with equal fervor, that they are fulfilling economic and governmental policies which possess or express equal, or greater societal value. I have no escape from having to decide.

Plaintiffs, Oregon Natural Resources Council, Inc., (ONRC) Breitenbush Community, Inc. and Michael Donnelly, bring this action challenging a decision by the United States Forest Service and its Regional Forester (USFS) to approve, offer and sell the North Roaring Devil contract in the Willamette National Forest to Bugaboo Timber Co. (Bugaboo). The sale, which has three segments, or "cutting units", will "clear cut" a total of about 61 acres.

PROCEDURAL HISTORY

Plaintiffs originally made three claims for relief. 1 First, plaintiffs assert that

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they have been denied their right to administrative appeal. Second, that USFS has violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Third, that USFS has violated the Clean Water Act, 33 U.S.C. § 1323 and Oregon's Water Quality Standard for nondegradation, Oregon Administrative Rule 340-41-026(1)(a).

At the outset, plaintiffs asked for a temporary restraining order and a preliminary injunction when Bugaboo was ready to embark on the first phase--construction of a temporary bridge across the South Fork of the Breitenbush River. This phase also included cutting trees in the right of way of the logging road which will allow removal of logs cut in the challenged sale. On November 5, 1986, I denied the request for injunctive relief. The logging schedule at that time envisioned that the main aspects of contract performance--construction of the permanent bridge, bringing of the road up to USFS standard, and actual cutting and removal of the trees from the three units would not begin until spring of 1987. It was anticipated that, given the discovery necessary, and other case processing; hearing the case on its merits could be accomplished free of the pressures which normally accompany these cases at the preliminary injunction stage.

BACKGROUND

In 1977, USFS adopted the Final Environmental Statement on the Multiple Use Land Management and Timber Management Plans for the Willamette National Forest (FES). The FES divided the forest into five planning units, one of which, the North Santiam Planning Unit, contains the North Roaring Devil timber sale. The FES allocated the forest area containing this sale to general forest use, which permits management of the area for sustained yield timber production.

On September 29, 1980, USFS completed an Environmental Assessment (EA) for the North Roaring Devil timber sale and made a Finding of No Significant Impact (FONSI). That decision was not challenged administratively. The purchase was made September 29, 1981. However, no timber was harvested. Rather, the sale was later returned by the buyer to the Forest Service under provisions of the Federal Timber Contract Payment Modification Act of 1984 (FTCPMA), 16 U.S.C. § 618 et seq.

In 1985, USFS reviewed the sale pursuant to the provisions of FTCPMA, to take any new environmental standards into account. On December 4, 1985, USFS modified the sale by reducing the amount of road to be constructed, deleting 6.7 million board feet of timber, and reducing the impacts to the spotted owl management area (which was established after September 29, 1981). On January 20, 1986, plaintiffs sought to appeal that modification. (Exhibit 113). On February 5, 1986, USFS dismissed the appeal because it was not filed within 45 days of the decision. (Exhibit 117). According to USFS, the decision to sell the timber was made on September 29, 1980 and an appeal, to be timely, must have been filed within 45 days of the decision. 36 C.F.R. § 211.18(c).

On August 1, 1986, USFS advertised this sale, as modified by the December 4, 1985 action and, on October 1, 1986, awarded the resale to Bugaboo. On October 20, 1986, plaintiffs sought to appeal the award of the resale. (Exhibit 118). USFS dismissed the appeal as untimely. (Exhibit 119). No further administrative challenge to either the modification of December 4, 1985 or the October 1, 1986 resale was made by plaintiffs. Plaintiffs brought this action on October 31, 1986, requesting declaratory and injunctive relief.

Plaintiffs and Bugaboo move for summary judgment. The USFS moves to dismiss plaintiffs' complaint and, alternatively, for summary judgment. These motions were supported by exhibits and affidavits as allowed by Fed.R.Civ.P. 56. A hearing was scheduled, in accordance with a practice I have generally followed in environmental cases; at such hearings, my practice has been to request preparation of narrative

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witness statements, and to afford supplementary direct examination by the offering party and cross-examination by the opponent. On February 6 and 7, 1987, such a hearing took place.

VIEW

At a recess during the hearing in February, I suggested to counsel that I was considering a view of the area involved, and asked them to respond to this suggestion. Plaintiffs endorsed, and defendants opposed the view. Thereafter, I called a conference to discuss the date for, and rules regarding the proposed view. Present at the conference were counsel, plus members of the news media (plus one lawyer who represented a TV station) who had expressed a keen desire to attend the view.

Defendants continued to oppose the view; further, if a view were to be taken, defendant Bugaboo opposed the presence of cameras by TV personnel, and still pictures by newspaper personnel, relying on Local Rule 130-1. 2 Bugaboo also contended that any colloquy that occurred during the view must be reported.

In essence, I ruled as follows. News gatherers would be allowed to accompany the court and counsel during the view itself; second, the news people were not allowed to conduct interviews of court, counsel or parties during the view. An opportunity was provided before and after the view for news persons to put questions to counsel and parties (or representatives) if they cared to respond to such. My expectation was that the view would be just that--a view, and not a testimony taking session. I...

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