Portland Audubon Soc. v. Lujan

Citation884 F.2d 1233
Decision Date06 September 1989
Docket NumberNo. 89-35337,89-35337
Parties19 Envtl. L. Rep. 21,378 PORTLAND AUDUBON SOCIETY; Headwaters; The Wilderness Society; Sierra Club, Inc.; Siskiyou Audubon Society; Central Oregon Audubon Society; Kalmiopsis Audubon Society; Salem Audubon Society; Umpqua Valley Audubon Society; Natural Resources Defense Council; Lane County Audubon Society; Oregon Natural Resources Council, Plaintiffs-Appellants, v. Manuel LUJAN, Jr., in his official capacity as Secretary, United States Department of Interior, Defendant-Appellee, and Northwest Forest Resource Council; Huffman and Wright Logging Company, et al.; Association of O & C Counties, et al,; Douglas County Forest Products, et al., Defendants-Intervenors-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Victor M. Sher, Sierra Club Legal Defense Fund, Inc., Seattle, Wash., for plaintiffs-appellants.

Martin W. Matzen, Dept. of Justice, Washington, D.C., for defendant-appellee Manuel Lujan, Jr.

Phillip D. Chadsey, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for defendants-intervenors-appellees The Ass'n of O & C Counties, et al.

Mark C. Rutzick, Preston, Thorgrimson, Ellis & Holman, Portland, Or., for defendants-intervenors-appellees The Northwest Forest Resource Council, et al.

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

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

GOODWIN, Chief Judge:

On remand from this court's decision in Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.1989), the district court took testimony, examined exhibits, reviewed the applicable law, and concluded that section 314 of Pub.L. No. 100-446, 102 Stat. 1774, 1825 (1988), barred plaintiffs' National Environmental Protection Agency (NEPA) claim. The district court also concluded that plaintiffs' other claims were untimely. Plaintiffs were seeking to enjoin the removal of timber from certain government-owned lands pursuant to current Timber Management Plans (TMPs) and their respective annual allowable harvest targets. After staying further logging pending this expedited appeal, we have reviewed the record, the briefs and arguments, and we affirm the district court's denial of relief on the NEPA claim. We remand plaintiffs' other claims for further proceedings.

The Timber Management Plans

From 1979 to 1983, the Bureau of Land Management (BLM) adopted ten-year plans for each of its districts in western Oregon. These Timber Management Plans (TMPs) were received in evidence as exhibits. Each was the result of a lengthy process that included the preparation of an Environmental Impact Statement (EIS) as required by the NEPA, 42 U.S.C. Sec. 4332. Each EIS considered the environmental impacts of possible timber management alternatives, including "maximum timber production," "no change [from present management]," "no herbicide," "emphasis on protection of natural values," "habitat diversity," as well as management alternatives which would compromise among these concerns.

Among the numerous environmental impacts studied under each alternative was the depletion of northern spotted owl habitat and the resulting predicted decline in the number of owls on BLM lands.

Each TMP adopts one of the alternatives proposed in the EIS, though perhaps with slight modifications. The TMPs designate commercial forest land under BLM management in the district for one of several uses. For example, the Roseburg District TMP, adopted September 30, 1983, sets aside 82 percent of the commercial forest land area for "intensive timber management." Another 9 percent is to be managed for "modified area control," which allows some timber harvest while protecting some old-growth timber and visual corridors. 1 An additional 9 percent of the commercial forest land is withdrawn from timber production altogether, because the land is in riparian areas, because it is fragile and incapable of supporting sustained yield timber management, or because the land is reserved for endangered species habitat or for recreation.

Although the TMPs do not designate specific timber sale boundaries, or require that BLM sell any particular acre of timber, they effectively decide the land use allocation of the forest and set the "annual allowable harvest" for each district. BLM timber sales are carried out in accordance with the plans. Each timber sale requires an Environmental Assessment which is "tiered" to the EIS for the TMP. In other words, when BLM sells an individual timber sale, it does not revisit the difficult trade-offs and decisions that were made in the TMP, deciding what land is to be designated for "intensive timber management." The Environmental Assessment considers site-specific concerns about how the sale is to be undertaken in accordance with BLM management practices: where roads are to be built, how the site is to be prepared, how to mitigate the environmental impact of the sale by reducing erosion, muddying of nearby waters, or an overly visible, unsightly cut.

In 1986, BLM decided to replace all of the current western Oregon TMPs with new, coordinated plans by the end of the decade. The EISs for the next generation of plans are currently being prepared and, if all goes according to schedule, should be completed in 1990. See Portland Audubon Society v. Lujan, 712 F.Supp. 1456, 1460-61 (D.Or.1989).

The Northern Spotted Owl

The northern spotted owl is heavily dependent on old-growth timber for its habitat. The owl is considered an "indicator species" for old-growth forest, meaning that the presence and number of northern spotted owls give an accurate indication of the health of the old-growth forest and the presence of other old-growth dependent species. As go the owls, naturalists say, so go the other species.

Almost no old-growth forest remains on private lands in western Oregon. Most of the remaining old-growth timber is on federal land managed by the Forest Service and BLM. BLM lands account for approximately one-fifth of the remaining old-growth timber.

During preparation of the 1979-1983 EISs and TMPs, the preparers recognized that the TMPs called for accelerated harvesting of much remaining old-growth timber, and that the number of nesting pairs of spotted owls would decline as this harvesting took place. The EISs and TMPs reflect this concern, and attempt to make provisions for the preservation of a specified number of owl pairs.

In the mid-1980s, several studies expressed concern for the long-term viability of the northern spotted owl species. Dr. Russell Lande of the University of Chicago completed a much-debated study on the likely extinction of the owl. The National Audubon Society commissioned an independent report which concluded that extinction is a possibility because of the owl's dependence on old-growth forest and its low rates of reproduction even in undisturbed forest.

At the request of environmental groups, including plaintiffs in this litigation, BLM prepared an Environmental Assessment in order to determine whether, in light of new information about the owl, supplemental EISs should be prepared for the TMPs. BLM provided interim protection for owl sites pending completion of the Environmental Assessment. The Spotted Owl Environmental Assessment was completed on February 3, 1987. It concluded that any new information about the owl was too preliminary to support preparation of a supplemental EIS, and that the impacts of planned timber sales on spotted owl habitat were no worse than had been predicted under the original EISs. On April 10, 1987, BLM issued its decision not to prepare a supplemental EIS on the owl, finding that a supplemental EIS would not serve any purpose because

[t]he conclusions of the [Spotted Owl Environmental Assessment] indicate that by the time BLM completes new resource management plans for western Oregon, more spotted owl habitat will be available than had been predicted to survive in the EISs, and substantial options for protecting the spotted owl population on BLM lands can be addressed in the new [resource management plans] and related EISs at that time. The analysis also shows that 913,000 acres of unsold old growth and mature timber now in existence on BLM lands in western Oregon will be reduced by no more than 9% by October 1990, leaving 91% of that particular habitat that exists today available for planning options for the [resource management plans] scheduled for completion in 1990.

Portland Audubon Society appealed this decision to the Interior Board of Land Appeals and requested immediate stay of timber sales near identified spotted owl nests. The Interior Board of Land Appeals eventually, on February 28, 1988, upheld the decision not to prepare a supplemental EIS. Meanwhile, on October 19, 1987, plaintiffs had filed this action alleging violations of NEPA, the Oregon & California Lands Act (OCLA), 43 U.S.C. Sec. 1181, the Federal Lands Policy and Management Act (FLPMA), 43 U.S.C. Secs. 1701 et seq., and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. Secs. 703 et seq.

The district court entered judgment for defendants on April 20, 1988, after granting defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), on the ground that judicial review of plaintiffs' claims was barred by section 314 of the 1987 interior continuing budget resolution. See Continuing Resolution, H.R.Res. 395, Sec. 314, Pub.L. No. 100-202, 101 Stat. 1329, 1329-254. That section was reenacted without change in 1988 as section 314 of Pub.L. No. 100-446, 102 Stat. 1825. 2 The district court relied on legislative history, particularly the 1987 Senate Report, S.Rep. No. 100-165, 1st Sess. 11-12 (1987), indicating that sponsors of section 314 intended to bar this very lawsuit. The district court characterized this as an action brought "on the sole basis of new information concerning the northern spotted owl." The district court did not...

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