Oregon Natural Resources Council v. U.S. Forest

• Citation: 59 F.Supp.2d 1085
• Decision Date: 02 August 1999
• Docket Number: No. C98-942WD.,C98-942WD.
• Parties: OREGON NATURAL RESOURCES COUNCIL ACTION, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE and Bureau of Land Management, Defendants, and Lone Rock Timber Co., Seneca Sawmill Company, Freres Lumber Co., Inc., and Hampton Tree Farms, Inc., Defendant-Intervenors.
• Court: U.S. District Court — Western District of Washington

59 F.Supp.2d 1085

OREGON NATURAL RESOURCES COUNCIL ACTION, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE and Bureau of Land Management, Defendants, and Lone Rock Timber Co., Seneca Sawmill Company, Freres Lumber Co., Inc., and Hampton Tree Farms, Inc., Defendant-Intervenors.

No. C98-942WD.

United States District Court, W.D. Washington, at Seattle.

August 2, 1999.

Corrie Johnson Yackulic, Schroeter, Goldmark & Bender, Seattle, WA, Michael D Axline, Eugene, OR, for plaintiffs.

Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Edward A Boling, U.S. Dept of Justice, Gen. Litigation Sec., Environment Div., Washington, DC, for defendants.

Mark C. Rutzick, Portland, OR, for defendant-intervenors.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

DWYER, District Judge.

I. INTRODUCTION

This is a suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, for judicial review of federal administrative agency action. The plaintiffs, fourteen nonprofit environmental organizations in Washington, Oregon, and California, seek declaratory and injunctive relief against the United States Forest Service and the Bureau of Land Management ("BLM") in regard to the management of certain federal forests. Plaintiffs claim that the federal defendants have violated the Northwest Forest Plan adopted in 1994, and hence have violated applicable statutes, by authorizing timber sales without first conducting surveys for certain species of wildlife. They contend also that the agencies are required by law to produce a supplemental environmental impact statement ("SEIS") before approving any more timber sales. The federal defendants deny these claims. The defendant-intervenors, who are the high bidders on eight proposed timber sales that could be affected by the outcome, support the federal defendants' position.

The case is the latest in a series concerning management of the federal forests within the geographic range of the northern spotted owl. In 1991, following "a remarkable series of violations of the environmental laws," an injunction was entered in this district deferring further timber sales by the Forest Service until a lawful management plan was adopted. Seattle Audubon Soc'y v. Evans, 771 F.Supp. 1081, 1089-96 (W.D.Wash.1991), aff'd, 952 F.2d 297 (9th Cir.1991). In a separate case, for similar reasons, the BLM was enjoined in the District of Oregon from making further timber sales in spotted owl habitat pending completion of an SEIS. See Portland Audubon Soc'y v. Lujan, 795 F.Supp. 1489 (D.Or.1992), aff'd sub nom., Portland Audubon Society v. Babbit, 998 F.2d 705 (9th Cir.1993).¹

In response to these and other decisions, the Forest Service and BLM worked together, for the first time, to revise the plans for managing the national forests and BLM districts within the range of the spotted owl. The process is summarized in Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, 1303-05 (W.D.Wash.1994), aff'd sub nom., Seattle Audubon Society v. Moseley, 80 F.3d 1401 (9th Cir.1996). As stated in that decision:

The FSEIS and ROD are the result of a massive effort by the executive branch of the federal government to meet the legal and scientific needs of forest management. They reflect unprecedented thoroughness in doing this complex and difficult job.

Id. at 1303.

An interagency task force published and received comments from the public on both a draft and a final SEIS ("FSEIS"). The environmental impact statements considered ten options that allowed varying levels of logging on the federal lands. The Secretaries of Agriculture and Interior issued a record of decision ("ROD") on April 13, 1994, selecting the ninth option, thereby adopting a regional forest plan and amending the planning documents for two Forest Service regions, nineteen national forests, and seven BLM districts. Id.

Against numerous challenges, the plan was upheld as lawful by this court and, on appeal, by the Ninth Circuit. See Lyons, 871 F.Supp. at 1291; Moseley, 80 F.3d at 1401. Now, bringing two sets of claims under the APA, plaintiffs contend that the federal defendants have not lawfully implemented the plan. The applicable statutes require that timber sales be consistent with land management plans. See NFMA, 16 U.S.C. § 1604(i) (Supp.1999), and 36 C.F.R. § 219.10(e) (1999); FLPMA, 43 U.S.C. § 1732(a) (Supp.1999), and 43 C.F.R. § 1610.5-3 (1999). A plan such as the ROD can be amended only through certain procedures which have not been followed here. See 16 U.S.C. § 1604(d); 43 U.S.C. § 1712(a) (Supp.1999); 36 C.F.R. § 219.10; 43 C.F.R. §§ 1610.2-1610.4 (1999).

The first set of claims challenges certain interpretive memoranda regarding the ROD's wildlife survey requirements, and defendants' reliance on those memoranda in approving timber sales without conducting surveys. The plan sets aside certain reserves and requires that known sites of certain rare species be protected. But for many species, surveys are the principal means of ensuring that their viability will not be ended by logging. By requiring surveys for those species before ground-disturbing activities that are implemented after September 30, 1996, or September 30, 1998, depending on the species, the plan allows measures to be taken to protect any sites that are found. The federal defendants issued and later updated memoranda stating that timber sales were exempt from these survey requirements if environmental impact statements had been completed before the applicable cut-off dates, even if ground-disturbing activities had not yet commenced. They also issued memoranda that established a survey protocol for the red tree vole, which is a primary source of food for the spotted owl. Under the protocol, site-specific surveys need not be done in areas of abundant red tree vole habitat or in habitat that is isolated in watersheds owned primarily by non-federal parties. Plaintiffs contend that these memoranda unlawfully exempt many timber sales from the plan's survey requirements, and therefore violate NFMA, 16 U.S.C. §§ 1600-1687 (Supp.1999), and FLPMA, 43 U.S.C. §§ 1701-1785 (Supp. 1999), pursuant to which the plan was established.

In the second set of claims, plaintiffs allege that because significant new information has come to light since the plan was adopted, the federal defendants are required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d (Supp.1999), and its implementing regulations, 40 C.F.R. § 1502.9(c) (1999), to issue an SEIS.

Denying these contentions, the federal defendants assert that the agencies' interpretations of the survey requirements are reasonable and entitled to deference, and that there is no obligation to prepare a new region-wide SEIS because the plan is flexible enough to accommodate any new information that has arisen. The defendant-intervenors concur, and contend also that plaintiffs lack standing.

All parties have moved for summary judgment under Fed.R.Civ.P. 56. The motions have been fully briefed and oral argument was heard in open court on July 1, 1999. Following argument, the parties submitted supplemental briefs on the standing issue, the last filing having been received on July 22, 1999. All parties agree that no genuine issue of material fact exists for trial and that the case can be decided on the motions for summary judgment. The federal defendants have asked for a further hearing on the scope of injunctive relief, if any, if the court rules in favor of plaintiffs. The court has jurisdiction under 28 U.S.C. § 1331 (Supp.1999) and under the APA, 5 U.S.C. § 706 (Supp. 1999).

II. STANDING, RIPENESS, AND FINAL AGENCY ACTION

Defendant-intervenors contend that plaintiffs lack standing to challenge the federal defendants' approval of timber sales based on disputed interpretations of the plan's survey requirements. The doctrine of standing involves limitations on jurisdiction derived from both constitutional and prudential sources. See Bennett v Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

To establish standing under Article III of the United States Constitution, plaintiffs must show: "(1) the invasion of a legally-protected interest; (2) a causal connection between the injury and the defendant's conduct; and (3) a likelihood that the court can redress the injury by a favorable decision." See Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1094 (9th Cir.1998) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Churchill County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir.1998).

Under the APA, parties "adversely affected or aggrieved by an agency action within the meaning of a relevant statute" may seek judicial review thereof. 5 U.S.C. § 702; see also Federal Election Commission v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 1783, 141 L.Ed.2d 10 (1998) (the word "aggrieved" shows congressional intent to "cast the standing net broadly"). NFMA requires that timber sales be consistent with forest and resource management plans, 16 U.S.C. § 1604(i), and FLPMA requires that the BLM manage lands pursuant to land use plans. 43 U.S.C. § 1732(a). The plan requires defendants to survey before implementing ground-disturbing activities. ROD at C-5. The declarations filed by plaintiffs' members show that they use the areas impacted by the challenged sales for viewing, studying, and enjoying the biological diversity of the forest, including species listed in the survey requirements. The interests of these members are threatened by the prospect that logging will go forward without legally required measures being taken to protect native species. See Florida Key Deer v. Stickney, 864 F.Supp. 1222, 1224 (S.D.Fla. 1994) ("the desire to use or observe an animal species, even for purely aesthetic purposes, is a cognizable interest for purposes of standing" (citations omitted)). Plaintiffs thus have...