National Audubon Soc. v. U.S. Forest Service
| Decision Date | 30 August 1994 |
| Docket Number | 91-35262 and 91-35265,Nos. 91-35214,s. 91-35214 |
| Citation | 46 F.3d 1437 |
| Parties | 25 Envtl. L. Rep. 20,910 NATIONAL AUDUBON SOCIETY; Oregon Natural Resources Council; Lane County Audubon Society; Friends of Greensprings; Headwaters; Soda Mountain Wilderness Council; Sky Lakes Wilderness Committee, Plaintiffs-Appellants, v. U.S. FOREST SERVICE, Defendant-Appellee, and Bill Christie, Jr.; Huffman and Wright Logging Company, Defendants-Intervenors-Appellees. NATIONAL AUDUBON SOCIETY; Oregon Natural Resources Council; Friends of Greensprings; Headwaters, et al., Plaintiffs-Appellees, v. U.S. FOREST SERVICE, Defendant-Appellant, and Bill Christie, Jr.; Huffman and Wright Logging Company, Defendants-Intervenors. NATIONAL AUDUBON SOCIETY; Oregon Natural Resources Council; Lane County Audubon Society; Friends of Greensprings; Headwaters, et al., Plaintiffs-Appellees, v. U.S. FOREST SERVICE, Defendant, and Bill Christie, Jr.; Huffman and Wright Logging Company, Defendants-Intervenors-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David C. Shilton and John T. Stahr, Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendant-appellant-cross-appellee.
Scott W. Horngren, Haglund & Kirtley, Portland, OR, for defendants-intervenors-appellants-cross-appellees.
Gary K. Kahn, Reeves, Kahn & Eder, Portland, OR, for plaintiff-appellee-cross-appellant.
Appeals from the United States District Court for the District of Oregon.
Before: BEEZER, NOONAN, and TROTT, Circuit Judges.
The panel has voted to amend its opinion filed September 15, 1993 as follows:
(1) The third sentence of the first [last] full paragraph on page 9927 of the slip opinion is amended to read as follows: "In affirming the district court, we held the Final EIS contained an inadequate discussion of site-specific environmental consequences of the nonwilderness allocations, as well as an inadequate range of alternatives."
With this amendment, the panel has voted to deny the petition for rehearing.
At issue is a challenge to four timber sales--the Ace, Butch, Varmit and Head timber sales--on unroaded and undeveloped areas of the Rogue River National Forest in Oregon. The United States Forest Service, Bill Christie Jr., and Huffman and Wright Logging Co. appeal the district court's order permanently enjoining these timber sales pending completion of an environmental impact statement ("EIS"). The National Audubon Society and other environmental organizations ("Audubon Society") seek attorneys' fees pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (1988) ("EAJA"). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988), and we affirm in part, reverse in part, and remand the case to the district court with directions to review the Forest Service's actions under the "arbitrary and capricious" standard.
Through the Wilderness Act of 1964, Congress created the National Wilderness Preservation System ("Wilderness System") to provide protection for lands relatively untouched by human activity. See 16 U.S.C. Sec. 1131 (1976). Under this Act, the Department of Agriculture is directed to recommend "primitive" areas which should be added to wilderness areas created on national forest lands. Id. Sec. 1132. In 1972, the Forest Service conducted the "Roadless Area Review and Evaluation" ("RARE I") in which roadless areas within the National Forest System were identified for possible inclusion into the Wilderness System. By October, 1973, the RARE I inventory resulted in the Forest Service's selection of 274 roadless and undeveloped areas for study as possible wilderness. However, further selection of these lands was enjoined pending the Forest Service's completion of an EIS pursuant to the requirements of the National Environmental Policy Act, 42 U.S.C. Sec. 4321 et seq. (1988) ("NEPA"). See Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir.1973).
In June, 1977, the Forest Service began its second Roadless Area Review and Evaluation (RARE II) in which all roadless areas within the National Forest System were inventoried and categorized as either "wilderness," "further planning," or "nonwilderness." 1 Areas marked as "wilderness" were to be recommended to Congress for inclusion into the Wilderness System, while those designated for "further planning" were to be protected until the completion of a unit management plan which considered whether to include the lands into the Wilderness System. Areas designated as "nonwilderness" were to be released for multiple use activities.
The Forest Service completed its EIS on RARE II in January, 1979. In July, 1979, the State of California brought an action challenging the Forest Service's decision to designate 47 RARE II areas in California as nonwilderness on the ground that the Final EIS was deficient. In affirming the district court, we held the Final EIS contained an inadequate discussion of site-specific environmental consequences of the nonwilderness allocations, as well as an inadequate range of alternatives. California v. Block, 690 F.2d 753 (9th Cir.1982).
In response to the difficulties encountered in RARE II, Congress enacted the Oregon Wilderness Act on June 26, 1984, which added RARE II roadless areas in Oregon to the Wilderness System, and released the remaining RARE II lands to nonwilderness management. Specifically, the Act created the Sky Lakes Wilderness area from one roadless area, and assigned the Bitter Lick roadless area to "multiple use" management. The Head timber sale borders on former RARE II roadless land from which the Sky Lakes Wilderness area was created. The Ace timber sale was formerly encompassed within the Bitter Lick (RARE II) roadless area.
Corresponding legislation was enacted which annexed bordering roadless areas to Crater Lake National Park. Pub.L. No. 96-553, 94 Stat. 3255 (Dec. 19, 1980), amended by Pub.L. No. 97-250, 96 Stat. 709 (Sept. 8, 1982). Although previously included in roadless areas which bordered on the park, the Varmit and Butch timber sales were not annexed to the Park and were released subsequently from the inventory of roadless areas in 1981.
Prior to advertising the four timber sales, the Forest Service prepared an Environmental Assessment on each. 2 After determining the timber sales did not require the preparation of an EIS, the Forest Service advertised the timber sales in late July, 1990. The four sales were offered during Fiscal Year 1990 pursuant to the terms of the Northwest Timber Compromise, as codified in Sec. 318 of the Department of the Interior and Related Agencies Appropriations Act of 1989 (FY 1990), Pub.L. No. 101-121, 103 Stat. 745 (1989).
The Compromise established a comprehensive set of rules to govern harvesting within a geographically and temporally limited domain. By its terms, it applied only to "the thirteen national forests in Oregon and Washington and [BLM] districts in western Oregon known to contain northern spotted owls." Sec. 318(i). It expired automatically on September 30, 1990, the last day of Fiscal Year 1990, except that timber sales offered under Sec. 318 were to remain subject to its terms for the duration of the applicable sales contracts. Sec. 318(k).
The Compromise both required harvesting and expanded harvesting restrictions. Subsections (a)(1) and (a)(2) required the Forest Service and the BLM respectively to offer for sale specified quantities of timber from the affected lands before the end of Fiscal Year 1990. On the other hand, subsections (b)(3) and (b)(5) prohibited harvesting altogether from various designated areas within those lands, expanding the applicable administrative prohibitions and then codifying them for the remainder of the fiscal year. In addition, subsections (b)(1), (b)(2) and (b)(4) specified general environmental criteria to govern the selection of harvesting sites by the Forest Service. Subsection (g)(1) provided for limited, expedited judicial review of individual timber sales offered under Sec. 318.
Within the fifteen-day period established by Sec. 318(g)(1) of the Act, 3 the Audubon Society brought this action seeking to permanently enjoin the four sales until the Forest Service prepared an EIS on each. With respect to each sale, the Audubon Society argued the Forest Service failed to comply with the requirements of NEPA. Specifically, the Audubon Society complained a portion of each timber sale is roadless and undeveloped and the Forest Service is required to disclose and analyze this roadless condition in an EIS prior to selling the timber.
Prior to trial, the Forest Service made a motion in limine to restrict the district court's review to the administrative record. The district court granted this motion, but told all parties it would "receive affidavits on what the record actually included." Subsequently, the Audubon Society submitted an affidavit from Dr. Reed F. Noss, whose testimony discussed the roadless nature of the proposed timber sales and the detrimental effects a timber sale would have on these areas. Dr. Noss stated his testimony was based upon his review of the administrative record and his field review of the timber sales.
Both the Forest Service and defendant-intervenors Bill Christie, Jr. and Huffman and Wright Logging Co. ("Christie") moved the court for summary judgment. The court denied the motions for summary judgment and, having reviewed the administrative record under a "reasonableness" standard, concluded the Forest Service's failure to prepare an EIS was unreasonable. The district court also rejected the Forest Service's argument that the Audubon Society's challenge was barred by...
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