Seattle Audubon Soc. v. Robertson, s. 90-35020

Decision Date30 October 1990
Docket Number90-8008,Nos. 90-35020,s. 90-35020
Citation914 F.2d 1311
Parties, 21 Envtl. L. Rep. 20,019 SEATTLE AUDUBON SOCIETY; Pilchuck Audubon Society; Washington Environmental Council; Washington Native Plants Society; Oregon Natural Resources Council, Inc.; Portland Audubon Society; Lane County Audubon Society; Siuslaw Task Force, Plaintiffs-Appellants, v. F. Dale ROBERTSON, in his official capacity as Chief, United States Forest Service; United States Forest Service, an agency of the United States, Defendants-Appellees. SEATTLE AUDUBON SOCIETY; Pilchuck Audubon Society; Washington Environmental Council; Washington Native Plants Society; Oregon Natural Resources Council, Inc.; Portland Audubon Society; Lane County Audubon Society; Siuslaw Task Force, Plaintiffs-Appellants, v. F. Dale ROBERTSON; United States Forest Service, Defendants-Appellees, Northwest Forest Resource Council; Association of O & C Counties, Defendant/Intervenors-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Todd D. True, Sierra Club Legal Defense Fund, Inc., Seattle, Wash., for plaintiffs-appellants.

Michael Axline, Western Natural Resources Law Clinic, Eugene, Oregon, for Oregon Natural Resources Council.

Mark C. Rutzick, Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, Or., for Northwest Forest Resource Council.

Phillip Chadsey, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for Association of O & C Counties.

Martin W. Matzen, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

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

Before GOODWIN, SCHROEDER and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

These consolidated appeals arise out of the ongoing controversy over logging in old growth forests in Oregon and Washington and the impact of that logging on the northern spotted owl. In response to ongoing legal disputes, Congress enacted section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub.L. No. 101-121, 103 Stat. 701, 745-50 (1989) ("section 318"). Section 318 would allow timber sales in old growth forests in Oregon and Washington in fiscal year 1990. The issue before us is whether section 318 violates the separation of powers doctrine by directing the judiciary to reach a particular result in the two cases underlying this appeal.

BACKGROUND

In October 1987, the Portland Audubon Society ("Portland Audubon") and other environmental organizations filed an action in district court for declaratory and injunctive relief, challenging forest management activities of the Bureau of Land Management, U.S. Department of the Interior ("BLM"), as violating the National Environmental Protection Act ("NEPA"), 42 U.S.C. Secs. 4321-4347, the Oregon & California Lands Act, 43 U.S.C. Sec. 1181, the Federal Land Policy and Management Act, 43 U.S.C. Secs. 1701-1782, and the Migratory Bird Treaty Act, 16 U.S.C. Secs. 703-711. The district court dismissed the action, and we reversed. Portland Audubon Soc'y v. Hodel, 866 F.2d 302 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3229, 106 L.Ed.2d On February 8, 1989, the Seattle Audubon Society and other environmental organizations ("Seattle Audubon") filed a complaint in district court for declaratory and injunctive relief, challenging the United States Forest Service's ("Forest Service") administrative decision adopting certain timber management guidelines as affording inadequate protection to the northern spotted owl. A month later, the Washington Contract Loggers Association also filed suit, challenging the guidelines as overly restricting timber harvesting. Seattle Audubon and the Washington Contract Loggers Association moved for preliminary injunctions. The district court initially denied both motions, but later granted Seattle Audubon's renewed motion for a preliminary injunction and enjoined certain planned timber sales.

                577 (1989).  On remand, the district court again dismissed the action.   Portland Audubon Soc'y v. Lujan, 712 F.Supp. 1456 (D.Ore.1989).  We affirmed the dismissal of the NEPA claim, but reversed the dismissal of the non-NEPA claims.   Portland Audubon Soc'y v. Lujan, 884 F.2d 1233 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990).  On October 23, 1989, Portland Audubon renewed its motion in the district court for summary judgment under the Oregon and California Lands Act, the Federal Land Policy and Management Act, and the Migratory Bird Treaty Act
                

Meanwhile, Congress passed section 318, which went into effect October 23, 1989. The "Northwest Timber Compromise," inter alia, requires the Forest Service and BLM to sell in fiscal year 1990 7.7 billion board feet of timber, of which 5.8 billion is to come from Oregon and Washington. Sec. 318(a)(1). Section (b)(3) sets out a timber management plan for national forest lands in Oregon and Washington. Under this section, no sales are to come from Spotted Owl Habitat Areas identified in the Environmental Impact Statement and Record of Decision of 1988, prepared in relation to proposed timber sales on Forest Service land. Section (b)(3) also adds about 3,200 acres to the protected forest area in the affected national forests. Sec. 318(b)(3). Section (b)(5) sets out a timber management plan for certain BLM lands in Oregon. Under this section, no sales are to come from areas identified as Spotted Owl Habitat Areas in an agreement between BLM and the Oregon Department of Fish and Wildlife, dated December 22, 1987. Section (b)(5) also directs BLM to identify an additional 12 protected areas on affected BLM land. Sec. 318(b)(5).

At the heart of these appeals is section 318(b)(6)(A), which specifically refers to the two cases now before us and provides:

Without passing on the legal and factual adequacy of the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide--Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 12, 1988 or the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.

On November 6, 1989, based on section 318 the district court in Seattle Audubon vacated the preliminary injunction. The district court rejected Seattle Audubon's argument that section 318(b)(6)(A) violates the separation of powers doctrine and is therefore unconstitutional. The district Portland Audubon and Seattle Audubon filed timely notices of appeal. We have jurisdiction over Seattle Audubon's interlocutory appeal in Seattle Audubon under 28 U.S.C. Sec. 1292(b) and over the district court's final order in Portland Audubon under 28 U.S.C. Sec. 1291.

court retained jurisdiction over the case and certified for interlocutory appeal under 28 U.S.C. Sec. 1292(b) its decision to vacate the preliminary injunction. On December 21, 1989, the district court in Portland Audubon granted the government's motion to dismiss, based on section 318, over Portland Audubon's constitutional challenge to section 318(b)(6)(A).

STANDARD OF REVIEW

The constitutionality of a statute is a question of law. We therefore review the district courts' rulings de novo. Trerice v. Pedersen, 769 F.2d 1398, 1400 (9th Cir.1985).

DISCUSSION

The Supreme Court "consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty." Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 658, 102 L.Ed.2d 714 (1989). In this case we must decide whether, in enacting section 318, Congress went beyond the limits of its power established in the Constitution.

By section 318, Congress for the first time endeavors to instruct federal courts to reach a particular result in pending cases identified by caption and file number. Subsection (b)(6)(A) raises serious constitutional concerns in light of Article III's stated premise that the judicial power of the United States, encompassing cases and controversies, lies in the federal courts and not in Congress.

In United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), the Supreme Court struck down an act of Congress because it violated the separation of powers doctrine. The plaintiff in Klein, the administrator of the deceased owner of property sold by federal agents during the Civil War, sued for proceeds of that sale under a law that gave a cause of action to recover such proceeds to noncombatant confederate landowners upon proof of loyalty to the federal government. The Supreme Court, in an earlier case, decided that receipt of a Presidential pardon was sufficient proof of "loyalty" under this law. Because the deceased landowner in Klein had received a pardon, the court of claims awarded recovery. Pending the government's appeal from the court of claims' decision, Congress passed a...

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