834 F.2d 842 (9th Cir. 1987), 87-3737, Oregon Natural Resources Council v. United States Forest Service

Docket Nº:87-3737.
Citation:834 F.2d 842
Party Name:OREGON NATURAL RESOURCES COUNCIL; Breitenbush Community, Inc.; Michael Donnelly, Plaintiffs-Appellants, v. U.S. FOREST SERVICE; Bugaboo Timber Company, Defendants-Appellees.
Case Date:December 21, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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834 F.2d 842 (9th Cir. 1987)

OREGON NATURAL RESOURCES COUNCIL; Breitenbush Community,

Inc.; Michael Donnelly, Plaintiffs-Appellants,

v.

U.S. FOREST SERVICE; Bugaboo Timber Company, Defendants-Appellees.

No. 87-3737.

United States Court of Appeals, Ninth Circuit

December 21, 1987

Argued and Submitted July 7, 1987.

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Ralph Bradley, Eugene, Or., for plaintiffs-appellants.

Blake A. Watson, Dept. of Justice, Washington, D.C., and John F. Neupert, Miller, Nash, Wiener, Hager & Carlsen, Portland, Or., for defendants-appellees.

Victor M. Sher and Todd D. True, Seattle, Wash., for amicus curiae Sierra Club, Inc. and The Wilderness Society.

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

Before GOODWIN and FERGUSON, Circuit Judges, and STEPHENS, District Judge. [*]

FERGUSON, Circuit Judge:

Plaintiffs-appellants Oregon Natural Resources Council, Inc. ("ONRC"), Breitenbush Community, Inc., and Michael Donnelly appeal the district court's denial of their motion for summary judgment and motion for preliminary injunction. The plaintiffs also appeal the court's order granting summary judgment for defendants-appellees United States Forest Service ("USFS") and Bugaboo Timber Co. ("Bugaboo"). Plaintiffs seek to enjoin Bugaboo from harvesting timber pursuant to a timber sale awarded Bugaboo by the USFS. We affirm in part and reverse in part.

Plaintiffs raise three issues on appeal. First, plaintiffs claim that the USFS violated the Administrative Procedure Act ("APA"), 5 U.S.C. Secs. 701-706, because the USFS did not abide by its own regulations and improperly dismissed plaintiffs' administrative appeal concerning the USFS's Environmental Assessment ("EA") of the

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North Roaring Devil timber sale. Second, plaintiffs claim that the EA is inadequate under the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4332, because it does not address cumulative effects, because it does not disclose violations of state water quality standards, and because the sale is precluded by a separate Draft EIS on the Northern Spotted Owl. Third, plaintiffs argue that construction of a bridge and logging road will violate the Federal Clean Water Act ("CWA"), 33 U.S.C. Sec. 1251, and Oregon water quality standards enforceable under the Clean Water Act.

I.

In 1977, the USFS adopted a final programmatic Environmental Impact Statement ("EIS") on Multiple Use Land Management and Time Management Plans for Willamette National Forest. The EIS divided the forest into five planning units, one of which, the North Santiam Planning Unit, contains the North Roaring Devil timber sale, the subject of this lawsuit. In 1980, the USFS completed an EA for the North Roaring Devil timber sale and made a Finding of No Significant Impact ("FONSI"). No administrative challenge was made at that time. In 1981, the USFS sold the North Roaring Devil timber to a private company. However, no harvesting took place and the sale was later returned by the buyer to the USFS in accordance with the Federal Timber Contract Payment Modification Act of 1984 ("FTCPMA"), 16 U.S.C. Sec. 618 et seq. Pursuant to the FTCPMA, the USFS modified and reoffered the sale on December 5, 1985.

On January 20, 1986, the plaintiffs sought to appeal the reoffer pursuant to USFS regulations, which state that "[d]ecisions of Forest Officers concerning the National Forest System ... are subject to appeal." 36 C.F.R. Sec. 211.18(a)(1). The USFS dismissed the appeal, claiming that it was untimely because it was not filed within forty-five days of the original decision to sell the timber, made on September 29, 1980. See 36 C.F.R. Sec. 211.18(c)(1). Thereafter, the USFS awarded the timber sale to Bugaboo on October 1, 1986. On October 20, 1986, plaintiffs sought to appeal the award of the resale. The USFS again dismissed the appeal as untimely.

The present action was filed on October 21, 1986. The winter months prevented the timber company from taking further action. On January 7, 1987, plaintiffs filed a motion to amend their complaint to include a NEPA claim and a claim under the Endangered Species Act, 16 U.S.C. Sec. 1536(c)(1), concerning the Northern Spotted Owl. The district court temporarily denied the amendment. On March 26, 1987, the court allowed the amendment after it segregated the issues for discovery and trial at a later date. On May 7, 1987, the district court issued an opinion denying plaintiffs' motions for summary judgment and injunctive relief and granting summary judgment for defendants, 659 F.Supp. 1441. Plaintiffs timely appeal.

II.

We review de novo the district court's grant of summary judgment. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We must decide, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

We will reverse the grant or denial of a preliminary injunction only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985).

III.

Plaintiffs argue that the reoffer of the North Roaring Devil timber sale constitutes a "decision" by the USFS which is subject to administrative appeal. The regulations upon which plaintiffs rely state that "[d]ecisions of Forest Officers concerning the National Forest System ... are subject to appeal." 36 C.F.R. Sec. 211.18(a)(1). The USFS dismissed plaintiffs'

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appeal of the reoffer on the grounds that the appeal was untimely. The USFS contends that the original decision concerning the sale was made on September 29, 1980, and that the reoffer merely implemented this decision and did not constitute a separate decision within the meaning of 36 C.F.R. Sec. 211.18. Since plaintiffs failed to appeal the original decision in a timely manner, see id. Sec. 211.18(c)(1), the USFS dismissed the later appeal. The district court, after examining the FTC-PMA, agreed with the USFS.

The FTCPMA provides that:

Timber from returned or defaulted contracts shall be offered for resale in an orderly fashion.... Timber from returned or defaulted contracts shall be given preference in the Forest Service timber sales programs. 1

16 U.S.C. Sec. 618(a)(5)(A).

The district court concluded that in providing for priority reoffers of timber from returned contracts, Congress did not contemplate full review of the earlier decision to sell the timber. Thus, the court concluded that "the reoffer of the North Roaring Devil sale does not constitute a 'decision' within the meaning of 36 C.F.R. Sec. 211.18(a)(1) and USFS did not violate its regulations when it dismissed the appeal as untimely."

Plaintiffs assert, however, that although Congress intended that the USFS move expeditiously to reoffer returned sales, it did not withdraw discretion from the agency to modify or withdraw such sales in appropriate circumstances. According to plaintiffs, the USFS must make a "decision" for each returned sale to determine whether to reoffer the sale and to determine the terms of the reoffer.

Plaintiffs refer to section 320 of the Department of the Interior and Related Agencies Appropriation Act, Pub.L. 99-591, 100 Stat. 3341-287, which was signed into law on October 30, 1986, to buttress their argument. Following passage of the FTCPMA, a controversy existed concerning the nature of administrative review Congress intended to allow for the reoffered sales. In response to this controversy, the Committee on Appropriations recommended that returned or defaulted sales which complied with existing environmental and other statutes and standards at the time of the original sale should "not be subject to further administrative or judicial appeal or review." S.Rep. No. 397, 99th Cong., 2d Sess. 66 (1986). The Conference Committee that prepared the final enacted version of the provision rejected this language. Instead, the Committee adopted the following:

To assure that National Forest and Bureau of Land Management timber included in sales defaulted by the purchaser, or returned under the Federal Timber Contract Payment Modification Act (Public Law 98-478), is available for resale in a timely manner, such sales shall be subject only to one level of administrative appeal. This limitation shall not abridge the right of judicial review. Actions on such administrative appeals should be completed within 90 days of receipt of the notice of appeal. Sales that are reoffered shall be modified, including minor additions or deletions, as appropriate, to reduce adverse environmental impacts, pursuant to current land management

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plans and guidelines, and such modifications in themselves should not be construed to require the preparations of new or supplemental environmental assessments.

Pub.L. No. 99-591, Sec. 320, 100 Stat. 3341-287 (Oct. 30, 1986) (emphasis added).

Plaintiffs contend that the change from the original Senate language to the final statutory text makes it clear that Congress intended to abbreviate the administrative review of reoffered sales. 2 Based on this language, the district court concluded that Congress did not intend to "mandate a review of the scope and breadth for which plaintiffs have contended."

The district court further concluded that, even if Congress intended to mandate one level of administrative appeal, Congress did not intend section 320 to apply retroactively. Section 320 was enacted on October 30, 1986, twenty-nine days after the North Roaring Devil timber sale was awarded. The court also noted that the modification made by the USFS on...

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