810 F.Supp. 1470 (D.Or. 1992), Civ. 91-6423, Douglas County v. Lujan

Docket Nº:Civ. 91-6423
Citation:810 F.Supp. 1470
Party Name:Douglas County v. Lujan
Case Date:December 22, 1992
Court:United States District Courts, 9th Circuit, District of Oregon
 
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Page 1470

810 F.Supp. 1470 (D.Or. 1992)

DOUGLAS COUNTY, Plaintiff,

v.

Manuel LUJAN, Defendant.

Civ. No. 91-6423-HO.

United States District Court, D. Oregon.

Dec. 22, 1992

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Ronald S. Yockim, Cegavske & Associates, Roseburg, OR, for Douglas County Oregon.

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Thomas C. Lee, U.S. Attorneys Office, Portland, OR, Jean E. Williams, U.S. Dept. of Justice, Environmental & Natural Resources Div., Wildlife and Marine Resources Section, Washington, DC, for Manuel Lujan, Jr.

James H. Boldt, Gloria M. Roy, Josephine County Counsel Office, Grants Pass, OR, for Josephine County.

David R. Ris, Coos County Counsel, Coquille, OR, for Coos County.

Reginald R. Davis, Klamath County Counsel, Klamath Falls, OR, for Klamath County Oregon.

Derek C. Johnson, Johnson Clifton Larson & Bolin, Eugene, OR, Victor M. Sher, Sierra Club Legal Defense, Seattle, WA, for Headwaters, Inc.

Derek C. Johnson, Johnson Clifton Larson & Bolin, Eugene, OR, Victor M. Sher, Sierra Club Legal Defense, Seattle, WA, for Umpqua Valley Audubon Soc.

Scott W. Horngren, Haglund & Kirtley, Portland, OR, Steven P. Quarles, Thomas R. Lundquist, Claire S. Brier, Crowell & Moring, Washington, DC, for Northwest Forest Resource Council.

Scott W. Horngren, Haglund & Kirtley, Portland, OR, Steven P. Quarles, Thomas R. Lundquist, Claire S. Brier, Crowell & Moring, Washington, DC, for Douglas Timber Operators, Southern Forest Products Ass'n, Southern Timber Purchasers Council and American Forest Resource Alliance.

ORDER

HOGAN, District Judge.

Plaintiff Douglas County filed this action for declaratory judgment and injunctive relief challenging defendant's failure to prepare an environmental impact statement (EIS) relative to designating critical habitat for the Northern Spotted Owl. Plaintiff and defendant have filed cross motions for summary judgment (# 15, # 60). Intervenor plaintiffs Coos County and Josephine County also seek summary judgment (# 36, # 41). 1

FACTS

On June 26, 1990, the United States Fish and Wildlife Service (FWS) listed the Northern Spotted Owl as a threatened species pursuant to the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq. See 55 Fed.Reg. 26,114 (June 26, 1990). ESA requires "to the maximum extent prudent and determinable," critical habitat to be designated concurrently with the listing of a species. 16 U.S.C. § 1533(a)(3)(A). In its final rule listing the Northern Spotted Owl as threatened, FWS found that critical habitat was not determinable at that time. The failure to designate critical habitat was challenged in federal court and FWS was ordered to publish a proposed critical habitat designation by April 30, 1991, and 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, 629-630 (W.D.Wash.1991).

On May 6, 1991, FWS published a proposed rule designating approximately 11,602 acres of public and private land within Oregon, Washington, and California as critical habitat. 56 Fed.Reg. 20,816 (May 6, 1991), Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 3. Part of the proposed rule stated: "The Service has determined that an Environmental Assessment, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act." 56 Fed.Reg., supra at 20,824. The Secretary is required to designate habitat "on the basis of the best scientific data available" and to take "into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. § 1533(b)(2). In arriving at the May 6, 1991 proposed designation, FWS relied in part on a preliminary economic analysis it previously prepared. Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 2. FWS acknowledged

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that it would need to conduct further study and consider additional data, including public comments, prior to publishing the final designation. 56 Fed.Reg., supra at 20,821.

On May 15, 1991, Douglas County filed a "Notice of Intent to File Citizens Suit Under Sec 11(g) of the Endangered Species Act for Failure to Abide by the National Environmental Protection Act." See Memorandum in Support of Motion for Summary Judgment (# 19), Exhibit A.

As part of the rule-making process, FWS requested comments from the general public relative to the critical habitat proposal. On May 30, 1991, plaintiff submitted formal comments to the Secretary, stating that the Secretary had failed to comply with NEPA requirements by not exploring a range of alternatives to the proposed action.

Plaintiff requested the assistance of United States Senator Robert Packwood to determine the status of plaintiff's notice of intent to file citizen suit. On August 5, 1991, FWS sent Senator Packwood a letter stating "(t)he Service believes that, under the reasoning of [the Pacific Legal Foundation v. Andrus] decision, preparing an EIS on the proposed critical habitat designation would not further the goals of NEPA or the Act." Memorandum in Support of Motion for Summary Judgment (# 19), Exhibit B.

After the comment period closed on the proposed designation, FWS prepared a second economic analysis report which reviewed a range of economic impacts including an analysis of employment and revenue loss in the timber industry in each county in the affected states. Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 5, pp. 19-25, and Tables 9-11.

On the basis of the second report, comments received on the first proposed designation and other data and analysis, FWS published a revised proposed rule in which 8,240,160 acres were proposed as critical habitat. 56 Fed.Reg. 40002, (August 13, 1991), Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 6. In the revised proposed designation, FWS excluded all private, tribal, and some state lands and revised some of the critical habitat units. In the second proposed rule, FWS affirmed its determination that an Environmental Assessment (EA) was not required.

The primary reason FWS published two proposed designations was to allow additional review and consideration of the economic impact of critical habitat designation and to permit full opportunity for public comment. 56 Fed.Reg. 20,822. Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 3.

FWS held another 60 day comment period following the publication of the revised proposed designation and continued to conduct further analysis of economic impact of the designation. FWS published a final "Economic Analysis of Critical Habitat Designation Effects for the Northern Spotted Owl" in January, 1992. See Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 7.

On January 15, 1992, FWS published its final rule designating Northern Spotted Owl critical habitat. 57 Fed.Reg. 1796 (Jan. 15, 1992). Memorandum in Support of Defendant's Motion for Summary Judgment (# 62), Exhibit 8. The final designation includes approximately 6.9 million acres. All state, private, tribal, and other non-federal lands are excluded. As with the previous proposed rules, the final rule stated that FWS had determined that it was not required to prepare an EA in conjunction with the designation. "A notice outlining the Service's reasons for this determination was published in the Federal Register on October 25, 1983 (48 FR 49244)." Id., 57 Fed.Reg. 1833.

FWS premised its conclusion that an EA was not necessary in conjunction with the designation primarily on the reasoning in a Sixth Circuit opinion and a letter received from the Council on Environmental Quality (CEQ). The Sixth Circuit opinion holds that, as a matter of law, FWS is exempt from the NEPA requirement to prepare an EIS prior to listing decisions under ESA.

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Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981).

The letter from 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), urged FWS to cease preparing EAs prior to making ESA listing decisions. See Memorandum in Support of Motion for Summary Judgment (# 19), Exhibit C.

On September 25, 1991, Douglas County filed this action alleging four claims. Plaintiff's first claim alleges that FWS violated NEPA by failing to develop a range of alternatives to the final Northern Spotted Owl critical habitat designation; plaintiff's second claim alleges that FWS violated NEPA by failing to identify and disclose the cumulative impact of the final Northern Spotted Owl critical habitat designation in conjunction with other connected actions; plaintiff's third claim alleges FWS violated NEPA and ESA by failing to consider other relevant impacts of designating critical habitat; and, plaintiff's fourth claim alleges FWS violated NEPA and ESA by failing to consider the social and economic impacts of designating a particular area as critical habitat. Complaint (# 1), pp. 6-9.

Plaintiff seeks a declaratory judgment that defendant violated NEPA and ESA and an injunction prohibiting defendant from taking any action to designate critical habitat for the Northern Spotted Owl until an EIS or EA is prepared. Id., p. 9.

ESA CLAIMS

Plaintiff's third and fourth claims for relief are based on alleged violations of both NEPA and ESA. The NEPA portion of those claims is based on FWS's alleged failure to consider various impacts of the Northern Spotted Owl critical habitat designation and is logically subsumed within plaintiff's second (NEPA) claim. Therefore, I will address plaintiff's third and fourth claims under ESA separately and address the NEPA portion of those claims, to the extent necessary, below.

Endangered Species...

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