Oregon Natural Resources Council Fund v. Forsgren, No. CV 02-368-BR.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtBrown
Citation252 F.Supp.2d 1088
PartiesOREGON NATURAL RESOURCES COUNCIL FUND and Hells Canyon Preservation Council, Plaintiffs, v. Harv FORSGREN, Karyn Wood, and United States Forest Service, Defendants, and D.R. Johnson Lumber Company, Defendant-Intervenor.
Decision Date11 March 2003
Docket NumberNo. CV 02-368-BR.
252 F.Supp.2d 1088
OREGON NATURAL RESOURCES COUNCIL FUND and Hells Canyon Preservation Council, Plaintiffs,
Harv FORSGREN, Karyn Wood, and United States Forest Service, Defendants, and
D.R. Johnson Lumber Company, Defendant-Intervenor.
No. CV 02-368-BR.
United States District Court, D. Oregon.
March 11, 2003.

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Marc D. Fink, Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, for Plaintiffs.

Michael W. Mosman, United States Attorney, Jeffrey K. Handy, Assistant United States Attorney, Val J. McLam Black, Special Assistant United States Attorney, Office of General Counsel, United States Department of Agriculture, Portland, OR, for Defendants.

Scott W. Horngren, Julie A. Weis, Haglund Kirtley Kelley Horngren & Jones LLP, Portland, OR, for Defendant-Intervenor.


BROWN, District Judge.

This matter comes before the Court on the Motion for Summary Judgment and Injunctive Relief (# 61) filed by Plaintiffs Oregon Natural Resources Council Fund and Hells Canyon Preservation Council and the Motion for Summary Judgment (# 67) filed by Defendants Harv Forsgren, Karyn Wood, and United States Forest Service. Defendant-Intervenor D.R. Johnson Lumber Company joins in Defendants' Motion relating to Plaintiffs' challenge to Defendants' management of the Canada lynx (lynx) in the Wallowa-Whitman National Forest (Forest) in Northeast Oregon.

The Court heard oral argument on January 14, 2003, regarding the parties' pending Motions. The Court has completed its consideration of these arguments and reviewed the memoranda of the parties, Defendant-Intervenor D.R. Johnson Lumber Company, and amicus curiae Pacific Legal Foundation and Wallowa-Whitman National Forest Property Owners.

For the reasons that follow, the Court GRANTS IN PART Plaintiffs' Motion for Summary Judgment and Injunctive Relief as to their First Claim brought under the National Forest Management Act of 1976 (NFMA), 16 U.S.C. § 1600, et seq., and their Second Claim brought under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq., to the extent those claims constitute specific challenges to the following pending timber sales: the McCully Restoration Projects, the Sandy Bottle Restoration Project, and the Little Bear Project. Accordingly, the Court hereby enjoins Defendants from all activities in furtherance of these timber sales pending compliance with the procedural requirements of NFMA and NEPA. The Court's resolution of Plaintiffs' Motion with regard to these three timber sales renders moot Plaintiffs' Third Claim brought under the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq. The Court otherwise DENIES Plaintiffs' Motion

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for Summary Judgment and specifically denies Plaintiffs' request for injunctive relief on a broad, programmatic basis against the Wallowa-Whitman Land and Resource Management Plan (Forest Plan).

The Court also GRANTS IN PART Defendants' Cross-Motion for Summary Judgment based on the Court's lack of subject-matter jurisdiction to consider the Lone Dog Project. The Court DENIES Defendants' Cross-Motion in all other respects.


A. Management of the Lynx.

Unless otherwise noted, the following facts relating to the management of the lynx in the Forest are undisputed.

The lynx is a wild cat that ranges in temperate forests, including those in the Cascade Range in Washington and Oregon and in the Rocky Mountains. The lynx preys on snowshoe hares found in areas with deep snow. The lynx's preferred denning habitats are mature forests that contain large woody debris such as lodgepole pine, spruce, and subalpine forests.

In 1990, the United States Fish & Wildlife Service (FWS) listed the lynx as a "sensitive" species. In 1998, the FWS published a proposed rule listing the lynx as a "threatened species" under the ESA. In March 2000, the FWS published a final rule listing the lynx as threatened in several regions, including the Cascade Range of Oregon and Washington and the Rocky Mountain states.

In 1990, the Forest Service (FS) completed an environmental impact statement (EIS) and promulgated the Forest Plan to manage the Forest in Oregon. The EIS did not include any specific management standards or directions to protect the lynx even though the FS knew the lynx used forest habitat.

In 1998, after the FWS proposed an ESA listing of the lynx, the FWS, FS, National Park Service (NPS), and Bureau of Land Management (BLM) participated in informal conferences under the direction of an interagency Lynx Steering Committee (Steering Committee) to assess conservation issues relating to the lynx. The FS began mapping suitable lynx habitat and used information on elevation, canopy cover, stand structure, and plant association to highlight lynx habitat. FS and FWS biologists refined the maps based on personal knowledge of the Forest, including information on reliable lynx sightings and snow depth. The FS and FWS biologists divided potential lynx habitat into primary habitat (which included Engelmann spruce, subalpine fir, and lodgepole pine) and secondary habitat (which included silver fir and mountain hemlock).

In April 1999, the Steering Committee produced two primary scientific documents: The Scientific Basis for Lynx Conservation (Science Report) and a draft Lynx Conservation Assessment and Strategy (LCAS). The Science Report was a compendium and interpretation of current scientific knowledge by experts on the lynx, its primary prey, and its habitat. The Science Report served as the scientific foundation for interagency activities involving the lynx. In the LCAS, the Steering Committee identified the risks to the lynx that might occur as a result of federal land-management activities and recommended conservation measures that could be taken to remove or to minimize those risks. The Steering Committee developed the LCAS to provide a consistent and effective approach to conservation of lynx on all federal lands.

In May 1999, pursuant to the LCAS, each national forest was required to begin mapping Lynx Analysis Units (LAU) with

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the understanding that new information might require mapping revisions.

In December 1999, the FS and BLM prepared a nationwide Biological Assessment in which they determined their plans failed to meet some of the evaluation criteria for the lynx. The FS and BLM recommended amendment or revision of the plans to incorporate conservation measures that would reduce or eliminate adverse effects to the lynx.

On February 7, 2000, the FS entered into a Conservation Agreement with the FWS to include in forest plans the measures necessary to conserve the lynx. The FS agreed any necessary changes to forest plans would be made through amendments and revisions in accordance with NFMA, including NEPA disclosures and public participation.

On March 24, 2000, the FWS published its final rule in which it designated the lynx as a threatened species under the ESA effective April 24, 2000.

On August 22, 2000, the Steering Committee, which included FS representatives, issued a Lynx Habitat Mapping Direction (new mapping direction) to all regional foresters and supervisors requiring them to review existing lynx habitat maps to ensure their consistency with certain criteria. Foresters are required to identify that portion of primary and secondary lynx habitat that falls within an LAU. The new mapping direction, however, specifically narrows the definition of lynx habitat by designating subalpine fir as the only primary lynx habitat. Foresters are to consider only isolated primary habitat islands within the LAUs as lynx habitat. According to the new mapping direction, only projects within the primary habitat islands of LAUs are subject to LCAS conservation measures and consultation procedures under the ESA. Thus, foresters may consider the location of historic or recent lynx sightings or occurrences only for the purpose of determining whether lynx habitat is within an LAU.

In August 2000, the Steering Committee issued a second edition of the LCAS (Revised LCAS) that included the criteria described in the new mapping direction. The Steering Committee issued the revision without public participation or any NEPA analysis or procedure.

On October 25, 2000, the FWS issued its Biological Opinion regarding the effects of National Forest Land and Resource Management Plans and BLM Use Plans on Canada lynx in the contiguous United States. The FWS concluded the current Plans implemented in conjunction with Conservation Agreements were not likely to jeopardize the continued existence of the lynx. The "no jeopardy" conclusion was based on continued implementation of the Conservation Agreements "until such time Plans are amended or revised to consider the needs of the lynx." Administrative Record (Admin.R.) 1434. The FWS further concluded the Plans were not likely to jeopardize the continued existence of the lynx if the FS amended or revised the Plans to incorporate the conservation measures in the LCAS.

Nonetheless, the new mapping direction and Revised LCAS generated concern among FS and FWS biologists. On November 1, 2000, wildlife biologists for seven national forests in Oregon, excluding the Forest, sent a letter to the FS Regional Office expressing their concern that none of the forests would have sufficient amounts of subalpine fir plant associations to identify LAUs if primary vegetation was limited to the subalpine fir. Foresters, therefore, would be unable to identify or to designate any lynx habitats for conservation under the LCAS. The biologists were concerned they would not be able to meet their obligations under the ESA or the

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Conservation Agreement under the new mapping direction.

On April 10, 2001, Region 1 of the FWS issued a "White Paper" in which it noted "the majority of the Cascades Geographic Area ... and portions of the Rocky Mountain Geographic Area in Oregon" fall outside the...

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