Lane County Audubon Soc. v. Jamison, s. 91-36019

• Citation: 958 F.2d 290
• Decision Date: 04 March 1992
• Docket Number: Nos. 91-36019,91-36340,s. 91-36019
• Parties: 22 Envtl. L. Rep. 20,675 LANE COUNTY AUDUBON SOCIETY, et al., Plaintiffs-Appellants/Cross-Appellees, v. Cy JAMISON, et al., Defendants-Appellees/Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 290

958 F.2d 290

22 Envtl. L. Rep. 20,675

LANE COUNTY AUDUBON SOCIETY, et al., Plaintiffs-Appellants/Cross-Appellees, v. Cy JAMISON, et al., Defendants-Appellees/Cross-Appellants.

Nos. 91-36019, 91-36340.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1992.

Decided March 4, 1992.

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

Edward A. Boling, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees/cross-appellants.

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

Before CHOY, SCHROEDER and T.G. NELSON, Circuit Judges.

SCHROEDER, Circuit Judge:

In June of 1989, the United States Fish & Wildlife Service (FWS) proposed listing the northern spotted owl as a threatened species under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA). See 54 Fed.Reg. 26666 (June 23, 1989). In addition, in October of 1989, the Interagency Scientific Committee to Address the Conservation of the Northern Spotted Owl (the ISC) was formed to "develop a scientifically credible conservation strategy for the northern spotted owl." ¹ In May of 1990, the ISC issued its Final Report, concluding that the lack of a consistent planning strategy has resulted in a high risk of extinction for the owl. In June of 1990, the FWS listed the northern spotted owl as a threatened species pursuant to the ESA. See 55 Fed.Reg. 26189 (June 26, 1990). The FWS based its decision to list the owl on its finding that "[e]xisting regulatory mechanisms are insufficient to protect either the northern spotted owl or its habitat." Id. at 26190.

In response to these events, the Bureau of Land Management (BLM), which manages approximately 1,149,954 acres of the remaining old growth forests suitable for spotted owl habitat in western Oregon, promulgated a document entitled "Management Guidelines for the Conservation of the Northern Spotted Owl, FY 1991 through FY 1992", commonly known as the "Jamison Strategy" ("the Strategy"). ² In this Strategy, the BLM essentially sets forth the criteria for selection of land for logging in the millions of acres administered by the BLM in Washington, Oregon and California. The BLM described the Jamison Strategy as "a four-phase plan ... which will direct BLM management of western forest lands into FY 1994 and beyond." The Strategy contains management guidelines for fiscal years 1991 and 1992, including a program to offer 750 million board feet of timber for sale each year. The Strategy was designed to be implemented immediately.

On December 4, 1990, Lane County Audubon Society and various environmental groups (Lane County), filed the requisite 60-day notice of their intention to file an ESA citizen suit to challenge the BLM's failure to consult with the FWS on the Strategy pursuant to 16 U.S.C. § 1536 ("Section 7") of the ESA. ³ See 16 U.S.C. § 1540(g)(2)(A)(i). In January of 1991, the BLM submitted about 174 proposed timber sales to be conducted in fiscal 1991 to the FWS for consultation pursuant to section 7 of the ESA, but did not submit the Jamison Strategy itself.

Lane County then filed this action in United States District Court for the District of Oregon seeking an injunction barring the conduct of any sales until the Jamison Strategy had undergone the consultation process. ⁴ The district court agreed with Lane County that the Jamison Strategy is an "action" within the meaning of section 7 of the ESA and held that the BLM had violated that section by failing to consult with the FWS to obtain that agency's biological opinion regarding the effects of the Strategy on the northern spotted owl before implementing the Strategy. The district court on April 4, 1991, enjoined the BLM from implementing the Strategy pending compliance with section 7, but stated in its order that the 1991 sales were not affected by its order. At the time of the district court's order, the FWS had reviewed 174 of the proposed 1991 sales and had declared that 122 of these would not be likely to jeopardize the owls' habitat, provided the remaining 52, the so called "jeopardy sales," would take place only within the strict limitations provided for in the FWS' biological opinion. ⁵ In reviewing the 1991 sales, FWS had before it the Jamison Strategy and found its criteria insufficient to protect owl habitat. It applied instead the criteria recommended in the ISC Final Report.

Lane County now appeals the district court's refusal to enjoin the 1991 timber sales. It seeks an injunction, pending completion of consultation on the Jamison Strategy, prohibiting all future sales on BLM lands in the affected area, including the 1992 sales and the remaining 1991 sales that have not yet been awarded.

The BLM cross-appeals the district court's order holding that the Jamison Strategy is "agency action" and requiring the BLM to submit the Strategy for consultation. The BLM contends that the Jamison Strategy is not an "action" requiring consultation and that it is merely a voluntarily created "policy statement." Moreover, the BLM contends that it has in fact substantially complied with the ESA by submitting the individual 1991 sales for section 7 consultation, and so, an injunction is unwarranted.

We hold that the district court correctly declared the Jamison Strategy itself to be an agency action and correctly enjoined its implementation pending consultation. We further hold that all future sales the BLM proposes to conduct are also "agency actions" and should not go forward until consultation is satisfactorily completed on the sales and on the Jamison Strategy itself or on another functionally similar plan establishing the governing criteria for sale site selections on BLM land. We enjoin, pending completion of such consultation, the award of any sales that may be announced in the future. The status of the remaining announced, but not yet awarded, 1991 sales is somewhat different, since those sales have already been submitted to the FWS. We remand to the district court for reconsideration of whether the award of those sales should also be enjoined based upon our holding today.

I

We turn first to the Jamison Strategy itself. It is intended to establish interim timber management standards to replace standards set forth in the old Timber Management Plans (TMPs) pending issuance of new TMPs. TMPs are discussed in some detail in Portland Audubon Soc'y v. Lujan, 884 F.2d 1233, 1234-35 (9th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990) ("PAS"). The TMPs are 10-year plans that "designate commercial forest land under BLM management in [each] district for one of several uses." Id. at 1234. TMPs do not designate specific timber-sale boundaries, or require that any particular area be harvested. Id. at 1235. Rather, they decide land-use allocation and set the "annual allowable harvest" for each district. See id.

The BLM itself described its Jamison Strategy as an "interim strategy" to be carried out while new management plans are prepared. The Strategy outlines in detail the various criteria that will be used to develop the 1991 and 1992 timber sales. It develops a "detailed management strategy" to be carried out in four phases to cover fiscal years 1990 through 1994 "and beyond." Like the TMPs, it establishes total annual allowable harvests. The impact of each individual sale on owl habitat cannot be measured without reference to the management criteria established in the TMPs and the Jamison Strategy.

Section 7(a)(2) of the ESA requires the Secretary of the Interior to ensure that an action of a federal agency is not likely to jeopardize the continued existence of any threatened or endangered species. To this end, section 7(b) sets out a process of consultation whereby the agency with jurisdiction over the protected species issues to the Secretary a "biological opinion" evaluating the nature and extent of jeopardy posed to that species by the agency action. 16 U.S.C. § 1536(b). In order to maintain the status quo, section 7(d) forbids "irreversible or irretrievable commitment of resources" during the consultation period. Id. § 1536(d).

Section 7 specifically provides that a federal agency (the "action" agency) shall "in consultation with ... the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species...." Id. § 1536(a)(2) (emphasis added).

Procedural guidelines for complying with this consultation requirement are codified at 50 C.F.R. Part 402. The FWS implementing regulations under the ESA require agencies to review their action "at the earliest possible time to determine whether any action may affect listed species." Id. § 402.14(a). The FWS defines agency "action" broadly to include "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies...." Id. § 402.02. Examples include but are not limited to:

(a) actions intended to conserve listed species or their habitat;

. . . . .

(d) actions directly or indirectly causing modifications to the land, water, or air.

Id. This court also interprets the term "agency action" broadly. Conner v. Burford, 848 F.2d 1441, 1452 (9th Cir.1988), cert. denied sub nom Sun Exploration & Prod. Co. v. Lujan, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989) (citing TVA v. Hill, 437 U.S. 153, 173 & n. 18, 98 S.Ct. 2279, 2291 & n. 18, 57 L.Ed.2d 117 (1978) (Supreme Court held that Congress had explicitly foreclosed the exercise of discretion by courts faced with a violation of section 7 of the ESA)).

We agree with the district court that "without a doubt," the Jamison Strategy as announced was to be an agency action "authorized, funded or carried out by the BLM." See District Court Order, September 11, 1991; quoting 16 U.S.C. § 1536(a)(2). Moreover, the...