Friends of Wild Swan, Inc. v. U.S. Forest Service, Civil No. 94-1455-JO.

• Decision Date: 02 May 1997
• Docket Number: Civil No. 94-1455-JO.
• Parties: FRIENDS OF the WILD SWAN, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Oregon

966 F.Supp. 1002

FRIENDS OF the WILD SWAN, INC., et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.

Civil No. 94-1455-JO.

United States District Court, D. Oregon.

May 2, 1997.

Gary Keith Kahn, Reeves Kahn & Eder, Portland, OR, Jack R. Tuholske, Missoula, MT, for plaintiffs.

Thomas C. Lee, U.S. Attys. Office, Portland, OR, Sandra B. Zellmer, Stephanie M. Parent, U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, for defendants.

Scott W. Horngren, Shay S. Scott, Michael E. Haglund, Haglund & Kirtley, Portland, OR, for intervenor-defendants.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

On December 1, 1994, plaintiffs Friends of the Wild Swan, Inc., Alliance for the Wild Rockies, Inc., Swan View Coalition, and Kettle Range Conservation Group filed suit against the United States Forest Service and various individual federal employees alleging three violations of the National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 to 1687, and its implementing regulations and one violation of the Administrative Procedures Act (APA), 5 U.S.C. §§ 701, 706, resulting from the Forest Service's alleged failure to implement forest management practices that adequately protect the bull trout. Specifically, plaintiffs allege that defendant Forest Service: (1) violated 16 U.S.C. § 1604(g)(3)(B) and 36 C.F.R. § 219.19 by not maintaining biological diversity and not maintaining viable populations of the bull trout; (2) violated 16 U.S.C. § 1604(g)(3)(E) by failing to protect aquatic habitat where timber harvest practices adversely affect bull trout; (3) violated the NFMA by failing to amend applicable regional guides and Forest Plans in light of new information on the declining status of the bull trout; and (4) acted arbitrarily and capriciously in violation of the federal APA by failing to protect the bull trout.

F.H. Stoltze Land and Lumber Co. intervened in this action as a defendant. This case is now before me on the parties' cross motions (# 177-1, # 190, and # 197) for summary judgment and on plaintiffs' motion (# 177-2) to bifurcate this case's liability and proceedings. For the reasons discussed below, I hereby GRANT plaintiffs' motion (# 177-1) for summary judgment in part and DENY it in part, GRANT defendant's and defendant-intervenor's motions (# 190, # 197) in part and DENY them in part, and GRANT plaintiff's motion to bifurcate the liability and remedy portions of this proceeding regarding PACFISH.

THE NATIONAL FOREST MANAGEMENT ACT AND IMPLEMENTING REGULATIONS

Congress enacted the National Forest Management Act (NFMA) to maintain "a natural resource conservation posture that will meet the requirements of our people in perpetuity." 16 U.S.C. § 1600(6). However, Congress also recognized that "management of the Nation's renewable resources is highly complex", 16 U.S.C. § 1600(1), and so recognized that a renewable resource program for this nation's forests

must be based on a comprehensive assessment of present and anticipated uses, demand for, and supply of renewable resources from the Nation's public and private forests and rangelands, through analysis of environmental and economic impacts, coordination of multiple use and sustained yield opportunities as provided in the Multiple-Use Sustained-Yield Act of 1960 (74 Stat. 215; 16 U.S.C. 528-531), and public participation in the development of the program * * *.

16 U.S.C. § 1600(3).

At issue here are the NFMA's requirements regarding land and resource management plans, also known as forest plans. The Act requires that the Secretary of Agriculture, "utilizing information available to the Forest Service and other agencies within the Department of Agriculture" to "prepare and transmit to the President a recommended Renewable Resource Program * * *." 16 U.S.C. § 1602. As part of that Program, the Secretary of Agriculture "shall develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System * * *." 16 U.S.C. § 1604(a). Moreover, in the development of these plans, "the Secretary shall use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences." 16 U.S.C. § 1604(b).

In developing the land and resource management plans, the Secretary must assure that the plans fulfill the Multiple-Use, Sustained-Yield Act of 1960 (MUSYA). 16 U.S.C. § 1604(e). MUSYA declared Congress's policy "that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. It authorized the Secretary of Agriculture "to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom" and specifically authorized the establishment of wilderness areas. 16 U.S.C. § 529.

Under MUSYA, "multiple use" is:

The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.

16 U.S.C. § 531(a). "Sustained yield of the several products and services" is "the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land." 16 U.S.C. § 531(b).

MUSYA, in turn, is supplemental to 16 U.S.C. § 475, which established the National Forests. 16 U.S.C. § 528. Section 475, provides that:

No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.

16 U.S.C. § 475.

To effectuate all of these cross references under the NFMA, the Secretary must "form one integrated plan for each unit of the National Forest System," 16 U.S.C. § 1604(f)(1), and must revise the integrated plan "from time to time when the Secretary finds conditions in a unit have significantly changed, but at least every fifteen years * * *." 16 U.S.C. § 1604(f)(5).

The NFMA also requires the Secretary of Agriculture to promulgate regulations governing land and resource management plans. Specifically, the Act requires that the regulations: ensure that land and resource management plans comply with the National Environmental Policy Act (NEPA), 16 U.S.C. § 1604(g)(1); specify guidelines for obtaining certain information, id. § 1604(g)(2); and specify "guidelines for land management plans developed to achieve the goals of the Program which —"

(A) insure consideration of the economic and environmental aspects of various systems of renewable resource management, including the related systems of silviculture and protection of forest resources, to provide for outdoor recreation (including wilderness), range, timber, watershed, wildlife, and fish;

(B) provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan;

(C) insure research on and (based on continuous monitoring and assessment in the field) evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land;

(D) permit increases in harvest levels based on intensified management practices, such as reforestation, thinning, and tree improvement if (i) such practices justify increasing the harvest in accordance with the Multiple-Use Sustained-Yield Act of 1960, and (ii) such harvest levels are decreased at the end of each planning period if such practices cannot be successfully implemented or funds are not received to permit such practices to continue substantially as planned;

(E) insure that timber will be harvested from National Forest System lands only where —

(i) soil, slope, or other watershed conditions will not be irreversibly damaged;

(ii) there is assurance that such lands can be adequately restocked within five years after harvest;

(iii) protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat; and

(iv) the harvesting system to be used is not selected primarily because it will give the greatest dollar return or the greatest unit output of timber; and

(F) insure that clearcutting, seed tree cutting, shelterwood cutting, and other cuts designed to regenerate an even-aged stand of timber will be used as a...