Pacific Rivers Council v. Thomas

• Citation: 30 F.3d 1050
• Decision Date: 07 July 1994
• Docket Number: 94-35042,Nos. 93-36162,s. 93-36162
• Parties: 24 Envtl. L. Rep. 21,367 PACIFIC RIVERS COUNCIL; Oregon Natural Resources Council; Hells Canyon Preservation Council; The Wilderness Society; Oregon Natural Desert Association, Plaintiffs- Appellants- Cross-Appellees, v. Jack Ward THOMAS, in his official capacity as Chief of the U.S. Forest Service; United States Forest Service, Defendants-Appellees-Cross-Appellants, and Northwest Forest Resource Council, et al., Defendants-Intervenors/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1050

30 F.3d 1050

24 Envtl. L. Rep. 21,367

PACIFIC RIVERS COUNCIL; Oregon Natural Resources Council Hells Canyon Preservation Council; The Wilderness Society; Oregon Natural Desert Association Plaintiffs- Appellants- Cross-Appellees, v. Jack Ward THOMAS, in his official capacity as Chief of the U.S. Forest Service; United States Forest Service, Defendants-Appellees-Cross-Appellants and Northwest Forest Resource Council, et al Defendants-Intervenors/Appellees.

Nos. 93-36162, 94-35042.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1994.

Decided July 7, 1994.

Victor M. Sher, Todd D. True, Adam J. Berger, Kristen L. Boyles, Sierra Club Legal Defense Fund, for plaintiffs/cross-appellees.

Lois J. Schiffer, Acting Asst. Atty. Gen., Jack C. Wong, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., Peter R. Steenland, Jr., Albert M. Ferlo, Jr., Elinor Colborn, J. Carol Williams, U.S. Dept. of Justice, Environmental & Natural Resources Div., for appellees/cross appellants.

Mark C. Rutznick, Douglas C. Blomgren, Preston Thorgrimson Shidler Gates & Ellis, for defendants-intervenors/appellees.

Appeal from the United States District Court for the District of Oregon.

Before: WRIGHT, TANG and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

OVERVIEW

Plaintiffs-appellants Pacific Rivers Council, et al. (PRC) appeal the district court's grant of a partial injunction. This injunction bars the United States Forest Service (Forest Service) from announcing, awarding or conducting any additional timber sales, range activities, or road building projects in the Wallowa-Whitman and Umatilla National Forests until it commences consultation procedures as required by the Endangered Species Act Sec. 7(a)(2), 16 U.S.C. Sec. 1536(a)(2) (ESA). The basis for the injunction was that the Forest Service had failed to consult with the National Marine Fisheries Service (NMFS) regarding the effects of certain Land and Resource Management Plans (LRMPs) on the Snake River chinook salmon, a species recently listed as "threatened" under the ESA. PRC argued that the district court should enjoin ongoing or announced timber, range, and road projects that the Forest Service had determined were not likely to affect the chinook. The district court accepted the Forest Service's determination that these projects were not irreversible or irretrievable commitments of resources in violation of ESA Sec. 7(d), 16 U.S.C. Sec. 1536(d).

The Forest Service also appeals the district court's order. It argues that because the LRMPs were adopted before the chinook were listed as a "threatened" species, the LRMPs are not agency actions requiring consultation under Sec. 7(a)(2) of the ESA, 16 U.S.C. Sec. 1536(a)(2). It also argues that even if the LRMPs are deemed agency actions, the Forest Service has already begun informal consideration of potential amendments to the LRMPs to address the listed chinook, making reinitiation of consultation superfluous.

We affirm the district court's judgment granting an injunction against the Forest Service pending compliance with the ESA. The LRMPs are important programmatic documents that set out guidelines for resource management in the forests involved in this case. As such, the LRMPs constitute continuing agency action requiring consultation

under Sec. 7(a)(2) of the ESA. We reverse, however, the district court's judgment denying an injunction against all ongoing and announced timber, range, and road projects. The district court erred in interpreting Sec. 7(d) of the ESA to allow the ongoing activities to continue when the Forest Service had failed to enter into consultation as required by Sec. 7(a)(2) of that statute. Accordingly, we remand to the district court with instructions to reconsider whether the ongoing and announced timber, range and road projects are irreversible and irretrievable commitments of resources which must be enjoined during consultation on the LRMPs between the Forest Service and NMFS.

FACTS

In 1990, the Forest Service promulgated and approved both the Wallowa-Whitman and the Umatilla Forest LRMPs. ¹ These LRMPs establish forest-wide and area-specific standards and guidelines to which all projects must adhere for up to 15 years. The LRMPs identify lands suitable for timber production and other uses, and establish an allowable sale quantity of timber and production targets and schedules for forage, road construction, and other economic commodities. The LRMPs also seek to provide adequate fish and wildlife habitat to maintain viable populations of existing native species, and "include measures for preventing the destruction or adverse modification of critical habitat for threatened and endangered species." 36 C.F.R. Sec. 219.1(a); 219.27(6) & (8). Every resource plan, permit, contract, or any other document pertaining to the use of the forest must be consistent with the LRMP. 16 U.S.C. Sec. 1604(i).

Anticipating the listing of the Snake River chinook salmon as a threatened species, the Forest Service and the NMFS entered into an "Inter-agency Agreement for Fulfilling Section 7 Interagency Coordination Responsibilities under the Endangered Species Act, Snake River Basin Salmonid Habitats." They agreed to cooperate in developing and implementing conservation strategies for the listed salmon and to consider amending LRMPs that were inconsistent with these strategies. In addition, the Forest Service agreed to conduct a biological evaluation of all proposed and ongoing activities in the Wallowa-Whitman and Umatilla Forests.

On April 22, 1992, the NMFS listed the Snake River chinook as a threatened species. See 57 Fed.Reg. 14,653. After the salmon were listed, 755 ongoing projects for the Umatilla Forest and 2,806 for the Wallowa-Whitman Forest were subjected to a biological evaluation to determine whether particular activities might affect the salmon. ² Over 700 projects were found "likely to adversely affect" the salmon. All of these were suspended pending completion of formal consultation with the NMFS. ³ Just under 1,200 of the projects were found not to affect the salmon. Another 1,700 projects were found "not likely to adversely affect" the salmon. All of the "not likely to adversely affect" projects were submitted to the NMFS for informal consultation by the end of August 1992. ⁴ However, the Forest Service decided to allow on-going projects to continue during the duration of the informal consultation where it previously determined that the project On August 5, PRC sent the Forest Service a 60-day notice of intent to sue under the ESA, citing the agency's failure to consult with the NMFS on the effects on the Snake River chinook of the Umatilla and Wallowa-Whitman National Forest LRMPs. On October 26, 1992, PRC filed suit in federal district court in Oregon alleging that the Forest Service violated the ESA Sec. 7(a)(2), 16 U.S.C. Sec. 1536(a)(2). PRC moved for partial summary judgment, seeking a declaration that the Forest Service is violating ESA Sec. 7(a)(2) and an order compelling the Forest Service to initiate consultation with NMFS on the Umatilla and Wallowa-Whitman LRMPs. ⁵ In addition, PRC moved for a preliminary or permanent injunction, requesting that the district court enjoin all ongoing and future activities in the two national forests that may affect the threatened chinook until the Forest Service completes consultation on the LRMPs. ⁶

was not likely to adversely affect the salmon. It determined that projects it deems are "not likely to adversely affect" a species will not constitute "irreversible or irretrievable commitments of resources and can be continued."

The district court granted PRC's motion for summary judgment and ordered the Forest Service to perform a biological assessment of the LRMPs and consult with NMFS as required by the ESA. The court also enjoined the Forest Service "from announcing, awarding or conducting any additional timber sales, range activities/grazing permits, or road building projects pending compliance with ESA Sec. 7." The injunction covered all future activities that "fall within the definition of a Sec. 7(d) [16 U.S.C. Sec. 1536(d) ] [as an] irreversible or irretrievable commitment of a resource during the consultation period."

However, the court refused to enjoin any of the ongoing or announced timber, range, and road projects under the LRMPs because it found that PRC had not adequately contested the Forest Service's determination that these activities were not irreversible or irretrievable commitments of resources under Sec. 7(d). The district court denied PRC's motion for reconsideration of the scope of the injunction or for an injunction pending appeal. These appeals followed.

I

The Forest Service first argues that the district court erred in concluding that the LRMPs are agency actions under Sec. 7(a)(2) of the ESA, 16 U.S.C. Sec. 1536(a)(2). ⁷ Specifically, the Forest Service argues that the LRMPs are not ongoing agency action throughout their duration, but only when they were adopted in 1990 or if they are revised or amended in the future. The Forest Service maintains that the district court erred in determining that the LRMPs represent ongoing agency action throughout their duration.

This argument is incorrect. The LRMPs are comprehensive management plans governing a multitude of individual projects. Indeed, every individual project planned in both national forests involved in this case is implemented according to the LRMPs. Thus, because the LRMPs have an ongoing and long-lasting effect even after adoption, we hold that the LRMPs represent ongoing agency action. We affirm the district court's decision requiring the Forest Service to consult with the NMFS as required under the ESA, 16 U.S.C. Sec. 1536(a)(2).

The Forest Service contends that the courts should defer to its administration of an ambiguous statute. It argues that the LRMPs in this case are not agency action and that its...