Lone Rock Timber Co. v. US Dept. of Interior, Civ. No. 93-927-AS.

• Decision Date: 20 January 1994
• Docket Number: Civ. No. 93-927-AS.
• Citation: 842 F. Supp. 433
• Parties: LONE ROCK TIMBER CO., an Oregon corporation; D.R. Johnson Lumber Co., an Oregon corporation; Spalding & Son, Incorporated, an Oregon corporation; Scott Timber Co., an Oregon corporation; and Burrill Timber Co., an Oregon corporation, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; Bruce Babbitt, Secretary of United States Department of Interior; United States Fish and Wildlife Service; Marvin Plenart, Regional Director, United States Fish and Wildlife Service; United States Bureau of Land Management; Dean Bibles, Regional Director, United States Bureau of Land Management, Defendants.
• Court: U.S. District Court — District of Oregon

842 F. Supp. 433

LONE ROCK TIMBER CO., an Oregon corporation; D.R. Johnson Lumber Co., an Oregon corporation; Spalding & Son, Incorporated, an Oregon corporation; Scott Timber Co., an Oregon corporation; and Burrill Timber Co., an Oregon corporation, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; Bruce Babbitt, Secretary of United States Department of Interior; United States Fish and Wildlife Service; Marvin Plenart, Regional Director, United States Fish and Wildlife Service; United States Bureau of Land Management; Dean Bibles, Regional Director, United States Bureau of Land Management, Defendants.

Civ. No. 93-927-AS.

United States District Court, D. Oregon.

January 20, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Scott W. Horngren, Michael E. Haglund, Haglund & Kirtley, Portland, OR, for plaintiff.

Thomas C. Lee, U.S. Attorney's Office, Portland, OR, Jean E. Williams, U.S. Dept. of Justice, Resources Div., Washington, DC, for defendants.

OPINION

ASHMANSKAS, United States Magistrate Judge:

Plaintiffs are timber companies who submitted the winning bids on certain timber sales offered by the Bureau of Land Management ("BLM") in FY 1990 and 1991. They seek declaratory and injunctive relief against the BLM and United States Fish and Wildlife Service ("FWS") with respect to alleged violations of the interagency cooperation provisions of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, 1536, and the implementing regulations for that section, 50 C.F.R. Subpart 402, and alleged violations of BLM regulations governing the sale of timber, 43 C.F.R. Part 54.

BACKGROUND

A federal agency must ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. 16 U.S.C. § 1536(a)(2). When a federal agency proposes to take an action that may affect a threatened or endangered species or its critical habitat, that agency must consult with the FWS and obtain a biological opinion from the FWS as to whether the proposed action is likely to result in a violation of the ESA. Id., 50 C.F.R. Subpart 402. Although the agency is technically not bound by findings of the FWS biological opinion, Sierra Club v. Marsh, 816 F.2d 1376, 1386 (9th Cir.1987), courts give great deference to the expertise of the FWS on these issues, and an agency that attempts to proceed with an action in the face of a critical FWS biological opinion will almost certainly be found to have acted arbitrarily and capriciously and contrary to law. See, e.g., Hill v. TVA, 549 F.2d 1064, 1070 (6th Cir.1977), aff'd, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

Nine of the timber sales at issue here are part of the BLM's FY 1990 timber sale program. On July 18, 1990, the BLM initiated consultation on the FY 1990 timber sale program. Five days later, the northern spotted owl was listed as a threatened species. The FWS issued a draft biological opinion on August 17, 1990, and a final "no jeopardy" biological opinion on November 23, 1990. Subsequently, the BLM obtained new information suggesting the proposed actions would have an adverse affect upon the northern spotted owl. By law, the BLM was required to reinitiate consultations. 50 C.F.R. § 402.16(b). Accordingly, on March 20, 1991, the BLM modified and resubmitted for individual consultation some of the FY 1990 sales, including the nine sales at issue here. On September 19, 1991, the FWS issued final "non-jeopardy" opinions for five of the sales at issue here, but reportedly deferred issuance of final opinions for the other four sales at the request of the BLM.

On February 14, 1992, the FWS designated critical habitat for the northern spotted owl, an event that required a new round of consultation. 50 C.F.R. § 402.16. The parties dispute the date on which this new round commenced. Plaintiffs assert the crucial date is January 23, 1992, when the BLM sent a letter to the FWS requesting the initiation of formal consultation. Defendants assert the letter was defective because it omitted much of the information required by 50 C.F.R. § 402.14(c), and formal consultation therefore did not commence until April 29, 1992, when the BLM finally supplied the requested information.

Effective September 28, 1992, the Washington, Oregon, and California populations of the marbled murrelet were listed as a threatened species. Only five of the nine sales were in areas that might contain marbled murrelets. Consultation on those sales was commenced December 9, 1992. On December 17, 1992, plaintiffs gave formal notice of their intent to file suit against the FWS to force completion of the consultation process. That lawsuit was filed on July 28, 1993. Final biological opinions in those nine sales were issued no later than September 3, 1993 (there is some dispute over the precise date of one of the opinions).

In addition to the nine FY 1990 sales, the BLM and FWS were consulting on a number of FY 1991 timber sales, including six at issue here. The BLM initiated consultation on these sales regarding the listing of the spotted owl on February 4 and March 4, 1991. That consultation was completed on June 17, 1991. As with the FY 1990 sales, a new round of consultation was initiated in 1992 to address the impact of those sales upon critical habitat for the owl. The parties similarly dispute whether formal consultation commenced on January 23 or April 29, 1992. A final biological opinion was issued on September 22, 1993, with respect to three of the sales. The BLM elected to withdraw the other three sales from consultation.

The original complaint asked this court to either (a) declare the FWS lacked jurisdiction to continue consultation and order the BLM to award the sales to plaintiffs, or (b) to compel defendants to terminate consultation and issue the biological opinions. Plaintiffs also sought declaratory relief establishing time limits upon the length of consultation, and a declaration that the FWS violated 50 C.F.R. § 402.14(g)(5) by failing to discuss certain information with plaintiffs prior to issuing the draft biological opinion.

After the FWS issued the biological opinions, plaintiffs filed an amended complaint seeking additional relief including an order declaring the biological opinions void, declaratory relief establishing procedures to be used in preparing the biological opinions, and other relief to address an assortment of grievances against the BLM and the FWS. Plaintiffs move for summary judgment. Defendants move to dismiss on jurisdictional grounds, or in the alternative for summary judgment. Plaintiffs also seek leave to file a second amended complaint.

DISCUSSION

1. Mootness:

Plaintiffs originally brought this action to compel the FWS to issue biological opinions on specific timber sales. Since the opinions have now been issued, those claims are moot. There is no point in my ordering the FWS to perform an act that has already occurred. Plaintiffs also seek declaratory relief establishing time limits upon the length of consultation, and requiring the FWS to obtain plaintiffs' consent to extend those deadlines, but since there is presently no dispute between the parties such a declaration would constitute an advisory opinion which federal courts lack jurisdiction to issue. Church of Scientology of California v. United States, ___ U.S. ___, ___, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992).

Plaintiffs contend this case presents one of the "exceptional situations where the plaintiff can reasonably show that he will again be subject to the same injury". Sample v. Johnson, 771 F.2d 1335, 1339 (9th Cir.1985) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)), cert. denied, 475 U.S. 1019, 106 S.Ct. 1206, 89 L.Ed.2d 319 (1986). I disagree. There is no possibility the FWS will again fail to issue these particular biological opinions for these particular timber sales. In theory, the FWS could someday fail to timely issue biological opinions for some other timber sale in which plaintiffs have an interest, but that is little more than speculation.¹ By contrast, in most of the cases upon which plaintiffs rely the controversy was one likely to be repeated, often at predictable intervals. See, e.g., Greenpeace Action v. Franklin, 982 F.2d 1342, 1348 (9th Cir.1992) (pollock fishing season had ended, but it was an annual event, and FWS had already announced plans to rely on the same biological opinion the following year, so the controversy was almost certain to be repeated), opinion amended on denial of rehearing, 14 F.3d 1324 (C.A.9 1992).

Defendants admit the consultation process was unacceptably attenuated in the present case, but attribute those delays to the unprecedented number of requests for consultation generated by the listings of the spotted owl and marbled murrelet. Defendants also note that on several occasions rapidly unfolding events forced the agencies to reinitiate consultation and issue a revised biological opinion. The FWS biologists were also stretched thin by other demands on their time, which included responding to legal challenges that sought to enjoin timber sales throughout the Pacific Northwest, and helping to prepare Forest Management Plan Option 9 ("Option 9") and other forest management plans. Finally, although public attention and considerable agency resources were devoted to the spotted owl and marbled murrelet, those are just two of the many species for which the FWS biologists are obliged to conduct studies and issue biological opinions.

Defendants have furnished affidavits detailing the steps that have been taken to avoid a repetition of these delays, including hiring more biologists to assist with the production of biological opinions, developing an interagency database, and tiering consultation on specific projects to consultations conducted ...