Northwest Forest Resource Council v. Glickman

• Decision Date: 30 May 1996
• Docket Number: 95-36042,Nos. 95-36038,s. 95-36038
• Citation: 82 F.3d 825
• Parties: , 26 Envtl. L. Rep. 20,983, 96 Cal. Daily Op. Serv. 2804, 96 Daily Journal D.A.R. 4655 NORTHWEST FOREST RESOURCE COUNCIL, an Oregon corporation, Plaintiff-Appellee, v. Daniel GLICKMAN, in his capacity as Secretary of Agriculture; Bruce Babbitt, in his capacity as Secretary of the Interior, Defendants, and Oregon Natural Resources Council; Sierra Club, Inc.; Pilchuck Audubon Society; Western Ancient Forest Campaign; Portland Audubon Society; Black Hills Audubon Society; and Headwaters, Intervenors-Appellants. NORTHWEST FOREST RESOURCE COUNCIL, an Oregon corporation, Plaintiff-Appellee, v. Daniel GLICKMAN, in his capacity as Secretary of Agriculture; Bruce Babbitt, in his capacity as Secretary of the Interior, Defendants-Appellants, and Oregon Natural Resources Council, Inc.; Sierra Club, Inc.; Pilchuck Audubon Society; Western Ancient Forest Campaign; Portland Audubon Society; Black Hills Audubon Society; and Headwaters, Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 825

82 F.3d 825

34 Fed.R.Serv.3d 1243, 26 Envtl. L. Rep. 20,983,

96 Cal. Daily Op. Serv. 2804,

96 Daily Journal D.A.R. 4655

NORTHWEST FOREST RESOURCE COUNCIL, an Oregon corporation, Plaintiff-Appellee, v. Daniel GLICKMAN, in his capacity as Secretary of

Agriculture; Bruce Babbitt, in his capacity as

Secretary of the Interior, Defendants,

and

Oregon Natural Resources Council; Sierra Club, Inc.;

Pilchuck Audubon Society; Western Ancient Forest Campaign;

Portland Audubon Society; Black Hills Audubon Society; and

Headwaters, Intervenors-Appellants.

NORTHWEST FOREST RESOURCE COUNCIL, an Oregon corporation, Plaintiff-Appellee, v. Daniel GLICKMAN, in his capacity as Secretary of

Agriculture; Bruce Babbitt, in his capacity as

Secretary of the Interior, Defendants-Appellants,

and

Oregon Natural Resources Council, Inc.; Sierra Club, Inc.;

Pilchuck Audubon Society; Western Ancient Forest Campaign;

Portland Audubon Society; Black Hills Audubon Society; and

Headwaters, Intervenors.

Nos. 95-36038, 95-36042.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1996.

Decided April 24, 1996.

As Amended on Denial of Rehearing May 30, 1996.

Albert M. Ferlo, Jr., United States Department of Justice, Washington, DC, for defendants-appellants.

Patti A. Goldman and Kristen L. Boyles, Sierra Club Legal Defense Fund, Seattle, Washington, for intervenors-appellants.

Mark C. Rutzick and Alison Kean Campbell, Portland, Oregon, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, Chief District Judge, Presiding.

Before: JOHN T. NOONAN, Jr., LEAVY and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

We consider what would appear to be a relatively straightforward question of statutory interpretation with fairly profound consequences. This appeal requires us to determine the relationship between two separate statutory provisions governing timber sales, Section 2001(k)(1) of the Fiscal Year 1995 Emergency Supplemental Appropriations for Disaster Relief and Rescissions Act, and Section 318 of the Department of the Interior and Related Agencies Appropriations Act. In particular, we must determine the meaning of the phrase "subject to [S]ection 318" as it appears in Section 2001(k)(1) of the 1995 Rescissions Act. It is not our role to determine the wisdom of Section 2001(k)(1), only its meaning.

This appeal consolidates two cases arising out of the same set of events but involving two distinct legal issues. ¹ The first appeal requires us to define the categories of timber sales the Secretaries of Agriculture and Interior must release under Section 2001(k)(1) of the 1995 Rescissions Act. The Northwest Forest Resource Council ("NFRC"), a timber industry trade association, contends Section 2001(k)(1) mandates that the Secretaries release several years of timber sales in federal lands that are defined by a separate statute, Section 318 of Public Law No. 101-121 (estimated at 656 million board feet). The Secretaries urge that Section 2001(k)(1) requires them to release only sales for fiscal years 1989 and 1990 (an estimated 410 million board feet). They appeal the district court's order adopting NFRC's interpretation of Section 2001(k)(1), and its permanent injunction directing the Secretaries to release timber sale contracts offered or awarded between October 1, 1990 and July 27, 1995. We have jurisdiction over the Secretaries' appeal pursuant to 28 U.S.C. § 1292(a)(1).

In the second appeal, Oregon Natural Resources Council and several other environmental organizations (collectively "ONRC") challenge the district court's refusal to allow ONRC to intervene in NFRC's lawsuit against the Secretaries. The denial of a motion to intervene is appealable as of right. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987); United States v. Oregon, 913 F.2d 576, 587 (9th Cir.1990), cert. denied by Makah Indian Tribe v. United States, 501 U.S. 1250, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991).

For the reasons discussed below, we affirm the district court's order directing the Secretaries to release "all timber sale contracts offered or awarded between October 1, 1990 and July 27, 1995, in any national forest in Oregon and Washington or [Bureau of Land Management] district in western Oregon," and we affirm the district court's partial denial of ONRC's motion to intervene in NFRC's declaratory action against the Secretaries.

FACTUAL BACKGROUND

I. Northwest Forest Resource Council's Declaratory Action

A. The Enactment of the 1995 Rescissions Act

On July 27, 1995, the President signed into law the Fiscal Year 1995 Emergency Supplemental Appropriations for Disaster Relief and Rescissions Act, Pub.L. 104-19, 109 Stat. 240 (1995). Though principally an appropriations bill, the Act contained several provisions aimed at expediting the award of timber harvesting contracts, including provisions authorizing the nationwide release of salvage timber sales (Section 2001(b)), expediting the award of timber sales covered in the President's Northwest Forest Plan (Section 2001(d)), and releasing previously authorized timber sales (Section 2001(k)(1)).

This appeal concerns the scope of Section 2001(k)(1) of the Act, which requires that within 45 days of the Act's enactment, ² the Secretaries of Agriculture and Interior must release "all timber sale contracts offered or awarded before [the Act's enactment] in any unit of the National Forest System or district of the Bureau of Land Management subject to section 318 of Public Law 101-121." Because Section 2001(k)(1) defines its mandatory timber releases by reference to Section 318 of the Department of the Interior and Related Agencies Appropriations Act, Fiscal Year 1990, Pub.L. 101-121, 103 Stat. 745 (1989), we must first examine the scope of timber sales under Section 318.

B. Timber Sales Authorized by Section 318

Enacted in October 1989, Section 318 mandated an "aggregate timber sale level" for timber harvests cut from National Forest Service and Bureau of Land Management lands in Oregon and Washington during fiscal years 1989 and 1990. § 318(a)(1).

Subsections 318(a)(1) and 318(a)(2) directed the Forest Service and the Bureau of Land Management to meet specified timber sales quotas from two geographical categories. Subsection 318(a)(1) provided that the bulk of timber sales must derive from "the thirteen national forests in Oregon and Washington known to contain northern spotted owls[.]" § 318(a)(1). Other subsections of the statute imposed various environmental and procedural requirements on these sales. See Subsections 318(b)-(j). Subsection 318(a)(2) authorized additional sales in the Bureau of Land Management's "administrative districts in western Oregon." The statute explicitly exempted Subsection 318(a)(2) sales from the procedural and substantive protections of Subsections 318(b)-(j). See § 318(i).

Implementation of Section 318 sales was delayed, however, by several lawsuits alleging Section 318 violated various federal environmental statutes. ³ Although Section 318 expired by its own terms on September 30, 1990, it provided for sales it had authorized, but which were not finalized until after it expired. Subsection 318(k) required that sales remaining to be released after the expiration date were to remain "subject to the terms and conditions of [Section 318] for the duration of those sale contracts." § 318(k). As of the enactment of Section 2001(k)(1) of the 1995 Rescissions Act, an estimated 410 million board feet of timber remained to be released under Section 318.

C. Northwest Forest Resource Council's Declaratory Action

On August 8, 1995, after the 1995 Rescissions Act was enacted but before the September 10 release date, NFRC brought the declaratory action below (No. 95-36042). NFRC sought the release, under Section 2001(k)(1), of "all timber sales offered prior to the date of enactment [of the 1995 Rescissions Act] in all national forests in Oregon and Washington and in Bureau of Land Management districts in western Oregon." ⁴ NFRC argued that Section 2001(k)(1)'s term "subject to Section 318" describes only Section 318's geographical boundaries, but does not incorporate Section 318's chronological limits (fiscal years 1989 and 1990). Under this interpretation, Section 2001(k)(1) requires As part of its declaratory action, NFRC sought a permanent injunction compelling the Secretaries "to award, release, and permit to be completed in fiscal years 1995 and 1996 ... all timber sales offered prior to July 27, 1995 in all national forests in Oregon and Washington and [Bureau of Land Management] districts in western Oregon, including the FY 1991-1995 sales." (emphasis added). It also sought a temporary restraining order requiring the Secretaries to "take all administrative actions" necessary to release the sales by September 10.

                the Secretaries to release sales occurring after fiscal years 1989 and 1990, but before enactment of the 1995 Rescissions Act.   This interpretation would entail the release of 246 million board feet of timber over and above the 410 million board feet Section 318 authorized for release in fiscal years 1989 and 1990
                

D. The District Court's Order and Permanent Injunction

The district court denied NFRC's motion for a temporary restraining order but granted summary judgment for NFRC, adopting its suggested interpretation of Section 2001(k)(1). The district court also granted NFRC's motion for a permanent injunction, directing the Secretaries "to award, release, and permit to be completed in fiscal years 1995 and 1996 ... all timber sale contracts offered or awarded between October 1, 1990 and July 27, 1995, in any national forest in Oregon and Washington or [Bureau of Land Management] district in western Oregon, except for sale units in which a threatened or endangered bird species is known to be nesting." (emphasis added).

The...