Portland Audubon Soc. v. Hodel, s. 88-3854

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation866 F.2d 302
Docket NumberNos. 88-3854,88-3855 and 88-3787,s. 88-3854
Parties19 Envtl. L. Rep. 20,367 PORTLAND AUDUBON SOCIETY; Headwaters; Lane County Audubon Society; Oregon Natural Resources Council; the Wilderness Society; Sierra Club; Siskiyou Audobon Society; Central Oregon Audubon Society; Salem Audubon Society; Kalmiopsis Audubon Society; Umpqua Valley Audubon Society; Natural Resources Defense Council, Inc., Plaintiffs-Appellees, v. Donald HODEL, in his official capacity as Secretary, United States Department of Interior, Defendant, and Northwest Forest Resources Council, Defendant-Intervenor-Appellant, and Huffman and Wright Logging Company; Freres Lumber Company, Inc.; Lone Rock Timber Company, Inc.; Scott Timber Company; Clear Lumber Manufacturing Corp.; Yoncalla Timber Products, Inc.; and Cornett Lumber Company, Inc., Defendants-Intervenors-Appellants. PORTLAND AUDUBON SOCIETY; Headwaters; Lane County Audubon Society; Oregon Natural Resources Council; the Wilderness Society; Sierra Club; Siskiyou Audubon Society; Central Oregon Audubon Society; Salem Audubon Society; Kalmiopsis Audubon Society; Umpqua Valley Audubon Society; Natural Resources Defenses Council, Inc., Plaintiffs-Appellants, v. Donald HODEL, in his official capacity as Secretary, United States Department of Interior, Defendant-Appellee, and Northwest Forest Resources Council; Association of O & C Counties; Benton County, Defendants-Intervenors-Appellees.
Decision Date24 January 1989

Victor M. Sher, Sierra Club Legal Defense Fund, Inc., Seattle, Wash., Michael Axline, Western Natural Resources Law Clinic, Eugene, Or., for plaintiffs-appellants-cross-appellees.

Martin W. Matzen, Dept. of Justice, Wash., D.C., and Thomas C. Lee, Asst. U.S. Atty., Portland, Or., for defendant-appellee.

Mark C. Rutzick, Preston, Thorgrimson, Ellis & Holman, Portland, Or., for defendants-intervenors-appellees-cross-appellants.

Phillip D. Chadsey, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for defendants-intervenors-appellees.

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

Before GOODWIN, Chief Judge, SCHROEDER and PREGERSON, Circuit Judges.

GOODWIN, Chief Judge:

Plaintiff environmental groups appeal the dismissal under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) of their action against defendant Donald Hodel, Secretary of Interior, and others. Certain intervenors also challenge the district court's denial of their motion to intervene on one of the plaintiffs' claims. We reverse in part and remand for trial.

The plaintiffs oppose the logging of old-growth fir timber. The Oregon director of the Bureau of Land Management (BLM) is in the process of selling for harvesting a large number of tracts of old-growth timber located in seven management districts. Plaintiffs sued to prevent logging these timber sales. Their main argument is that logging will destroy the habitat of the northern spotted owl, thereby threatening the species with extinction. For the purposes of Rule 12 review, we are required to assume the truth of the alleged facts.

The complaint sought declaratory and injunctive relief based upon the logging plan's alleged violation of the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347 (1982), the Oregon and California Lands Act, 43 U.S.C. Sec. 1181 (1982), the Federal Land Policy and Management Act, 43 U.S.C. Secs. 1701-1782 (1982), and the Migratory Bird Treaty Act, 16 U.S.C. Secs. 703-12 (1982).

Plaintiffs do not seek relief under the Endangered Species Act because the United States Fish and Wildlife Service has refused to declare the Northern Spotted Owl an endangered species. This refusal has been challenged in other litigations by some of the same plaintiffs. See Northern Spotted Owl (Strix Occidentalis Caurina) v. Donald Hodel, (W.D.Wash. No. C88-573Z, November 17, 1988). Plaintiffs seek an injunction to halt all timber sales that included old-growth Douglas fir trees more than 200 years old and growing within 2.1 miles of known spotted owl habitat sites. Maps of proposed timber sales reveal that some 289 of the old-growth fir timber stands offered for sale fall within the requested injunction.

The Northwest Forest Resources Council (NFRC), eight Oregon counties, and various individual contractors (the Huffman & Wright Group) were allowed to intervene as defendants with respect to certain of the plaintiffs' claims.

While this appeal has been pending, we granted in part the plaintiffs' emergency motion for a temporary injunction. During the summer of 1988, selected logging operations were allowed to continue, but the logging of several other sales was enjoined. The question that remains to be decided is whether plaintiffs can continue this litigation.

Statutory Withdrawal of Jurisdiction

The district court held that section 314 of the 1988 continuing budget resolution withdrew the court's jurisdiction to consider the plaintiffs' claim.

Section 314 provides:

The Forest Service and Bureau of Land Management are to continue to complete as expeditiously as possible development of their respective Forest Land and Resource Management Plans to meet all applicable statutory requirements. Notwithstanding the date in section 6(c) of the NFMA (16 U.S.C. 1600), the Forest Service, and the Bureau of Land Management under separate authority, may continue the management of lands within their jurisdiction under existing land and resource management plans pending the completion of new plans. Nothing shall limit judicial review of particular activities on these lands: Provided, however, That there shall be no challenges to any existing plan on the sole basis that the plan in its entirety is outdated, or in the case of the Bureau of Land Management, solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan: Provided further, That any and all particular activities to be carried out under existing plans may nevertheless be challenged.

Continuing Resolution, H.J.Res. 395, Sec. 314, Pub.L. No. 100-202, 101 Stat. 1329-254, 133 Cong.Rec. H 12468 (daily ed. Dec. 21, 1987) (emphasis added). (The above section was reenacted without change as H.R. 4867 and signed by the President on September 27, 1988, and is now found in Pub.L. No. 100-446).

The plaintiffs argue that the quoted section of the continuing resolution does not withdraw jurisdiction to hear this case. The section purports in one sentence to take away the jurisdiction of the district courts to hear challenges to "existing plans", while in a following sentence providing "further that any and all particular activities to be carried out under existing plans may nevertheless be challenged." The trial court interpreted this extraordinary language as a clear withdrawal of jurisdiction. We find it anything but clear.

Plaintiffs argue in effect that each sale which includes spotted owl habitat is a "particular activity" subject to challenge. Defendants argue, on the other hand, that each of the seven regional "existing plans" is a comprehensive and carefully coordinated management plan of scheduled sales preceded in each of the seven districts by environmental impact statements, and, by express legislative intent, made immune from challenge.

The management plans are designed to provide a steady flow of old growth timber from the federal inventory to the sawmills and other manufacturers in the Oregon counties containing BLM old growth timber. Defendants argue that the challenge of virtually all of the planned sales under the guise of challenging "particular activities" is a transparent effort to avoid the clear intent of section 314 by nibbling away at the management plans, sale by sale.

The sales are indeed separate transactions. They are also part of an existing plan of disposal of federal timber in the region. Thereby hangs the problem in this case.

"We begin with the strong presumption that Congress intends judicial review of administrative action." Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 2135, 90 L.Ed.2d 623 (1986); see Love v. Thomas, 858 F.2d 1347 (9th Cir.1988) (observing that "we construe prohibitions against judicial review narrowly"). See Moapa Band of Paiute Indians v. United States Dep't of Interior, 747 F.2d 563, 565 (9th Cir.1984) (observing that "[p]reclusion of judicial review ... usually will not be found absent a clear command of the statute").

The language in section 314 upon which the district court relied is "that there shall be no challenges to any existing plan ... solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan...." Here the key words seem to be "solely" and "information available subsequent to the completion of the existing plan."

The plan to sell substantially all the marketable old growth fir timber remaining under BLM management was an "existing plan" when this litigation was commenced. The environmental implications of the plan had been fully studied between 1979 and 1983. The studies had evaluated the impact upon wildlife, including owls. It was and is no secret that the northern spotted owl disappears when its habitat is destroyed by logging. The plan was nonetheless approved and was being executed. This litigation threatened to delay the proposed sales, at considerable expense to the impacted counties, industrial purchasers, and the communities that rely upon the timber industry for their livelihood.

The defendants went to their senators and representatives, and section 314 was the result. The environmental impact studies made in 1983 during the preparation of the plan had not been challenged in court. They had been challenged in administrative proceedings. After the sales were advertised in 1987, the plaintiffs discovered more information about the northern spotted owl....

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