Portland Audubon Soc. v. Lujan

• Decision Date: 31 October 1994
• Docket Number: Civ. No. 87-1160-FR.
• Citation: 865 F. Supp. 1464
• Parties: PORTLAND AUDUBON SOCIETY, Head-waters, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, Natural Resources Defense Council, Lane County Audubon Society, and Oregon Natural Resources Council, Plaintiffs, v. Manuel LUJAN, in his official capacity as Secretary, United States Department of Interior, Defendant, and Northwest Forest Resource Council, Huffman & Wright Logging Co., Freres Lumber Co., Inc., Lone Rock Timber Co., Inc., Scott Timber Co., Clear Lumber Manufacturing Corp., Yoncalla Timber Products, Inc., Cornett Lumber Company, Inc., Association of O & C Counties and Benton County, Douglas County Forest Products Company, Medford Corporation, Rogge Forest Products, Inc., Defendants-Intervenors.
• Court: U.S. District Court — District of Oregon

865 F. Supp. 1464

PORTLAND AUDUBON SOCIETY, Head-waters, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, Natural Resources Defense Council, Lane County Audubon Society, and Oregon Natural Resources Council, Plaintiffs, v. Manuel LUJAN, in his official capacity as Secretary, United States Department of Interior, Defendant, and Northwest Forest Resource Council, Huffman & Wright Logging Co., Freres Lumber Co., Inc., Lone Rock Timber Co., Inc., Scott Timber Co., Clear Lumber Manufacturing Corp., Yoncalla Timber Products, Inc., Cornett Lumber Company, Inc., Association of O & C Counties and Benton County, Douglas County Forest Products Company, Medford Corporation, Rogge Forest Products, Inc., Defendants-Intervenors.

Civ. No. 87-1160-FR.

United States District Court, D. Oregon.

October 31, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Victor M. Sher, Todd D. True, Sierra Club Legal Defense Fund, Inc., Seattle, WA, for plaintiffs Portland Audubon Soc., Headwaters, Wilderness Soc., Sierra Club, Inc., Siskiyou Audubon Soc., Cent. Or. Audubon Soc., Kalmiopsis Audubon Soc., Salem Audubon Soc., Umpqua Valley Audubon Soc., and Natural Resources Defense Council.

Michael D. Axline, Marianne Dugan, Deborah Mailander, Eugene, OR, for plaintiffs Lane County Audubon Soc. and Or. Natural Resources Council.

Kristine Olson Rogers, U.S. Atty., Thomas C. Lee, Larry A. Brown, Asst. U.S. Attys., Roger W. Nesbit, Sp. Asst. U.S. Atty., Portland, OR, for defendant.

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

FRYE, District Judge.

The matters before the court are (1) the motion of the plaintiffs for fees and expenses under the Equal Access to Justice Act (# 885); (2) the motion of the defendant to dismiss claim for fees and expenses (# 928); and (3) the motion of the defendant to reinstate award of costs to defendant (# 929).

BACKGROUND

Plaintiffs are the Portland Audubon Society, Headwaters, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, and the Natural Resources Defense Council.

On October 19, 1987, the plaintiffs filed this action alleging violations by the defendant, Manual Lujan, in his official capacity as Secretary of the United States Department of the Interior, of the National Environmental Policy Act (the NEPA), 42 U.S.C. §§ 4321 et seq.; the Oregon & California Lands Act (the O & C Act), 43 U.S.C. §§ 1181a et seq.; the Federal Land Policy and Management Act (the FLPMA), 43 U.S.C. §§ 1701 et seq.; the Migratory Bird Treaty Act (the MBTA), 16 U.S.C. §§ 703 et seq.; and the Administrative Procedure Act (the APA), 5 U.S.C. §§ 553 et seq.

On October 19, 1987, the plaintiffs filed their first claim for relief, alleging that the decision of the Oregon Director of the Bureau of Land Management (the BLM) on April 10, 1987 not to prepare a Supplemental Environmental Impact Statement prior to the completion of the Environmental Impact Statement, which was expected at that time to be completed by the fall of 1990, violated the requirements of the NEPA.

On December 21, 1987, Congress enacted Section 314 of the Department of the Interior and Related Agencies Appropriations Act, Pub.L. No. 100-446, 102 Stat. 1774, 1825 (1988), which barred certain environmental challenges to timber sales.

On May 18, 1989, this court filed an opinion, in which it stated:

The Environmental Impact Statements prepared between 1979 and 1983 do not address the issues of adequate population size or the effects of habitat fragmentation upon the long-range survival of the spotted owl species. Neither does the Spotted Owl Environmental Assessment prepared in 1987. This is a significant omission from the Spotted Owl Environmental Assessment in light of the new information available at the time it was prepared.

Since the Spotted Owl Environmental Assessment does not address the critical issues of adequate population size and the effects of habitat fragmentation upon the long-range survival of the spotted owl, the court concludes that the decision of the BLM not to supplement the Environmental Impact Statements prepared between 1979 and 1983 was arbitrary and capricious in light of the new, significant, and probably accurate information that the planned logging of spotted owl habitat raises uncertainty about the ability of the spotted owl to survive as a species.

Portland Audubon Soc'y v. Lujan, 712 F.Supp. 1456, 1485 (D.Or.1989). This court concluded, however, that Section 314, as enacted on December 21, 1987, and reenacted without change on September 27, 1988, barred the NEPA claim of the plaintiffs, and therefore the court did not order the BLM to comply with the requirements of the NEPA. Id. at 1488-89.

On September 6, 1989, the United States Court of Appeals for the Ninth Circuit (the Court of Appeals) issued a mandate affirming the conclusion of this court that Section 314 barred the NEPA claim of the plaintiffs. Portland Audubon Soc'y v. Lujan, 884 F.2d 1233 (9th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). The Court of Appeals stated in its opinion that "the district court's finding that plaintiffs' NEPA claim is based on `new information' is not contested in this appeal. Instead, the argument is focused on whether plaintiffs challenge the plans or `particular activities to be carried out under the existing plans.'" Id. at 1237. The Court of Appeals affirmed this court's order denying relief to the plaintiffs under the NEPA. The Court of Appeals stated that "if plaintiffs were to succeed on the merits of their NEPA claim, the BLM would be required to suspend its management plans and prepare a supplemental EIS, addressing concerns about the northern spotted owl." Id. at 1239. The Court of Appeals, however, reversed the order of this court dismissing the claims of the plaintiffs under the MBTA, the O & C Act, and the FLPMA and remanded the action for further proceedings.

In a provision of Section 318, which went into effect on October 23, 1989, Congress referred to this action as follows:

Without passing on the legal and factual adequacy of ... the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections ... (b)(5) of this section on ... Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for ... the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsection ... (b)(5) of this section shall not be subject to judicial review by any court of the United States.

Section 318(b)(6)(A) (emphasis added).

On December 21, 1989, this court granted the motion of the defendant to dismiss all claims pursuant to Section 318 and entered judgment for the defendant based upon the conclusion of the court that Section 318 barred this action and that Section 318 was constitutional. Portland Audubon Soc'y v. Lujan, 1989 WL 155694, 21 Envtl.L.Rep. 20,018 (D.Or. Dec. 21, 1989).

On May 1, 1990, this court denied an application by the plaintiffs for attorney fees and expenses on the grounds that at that stage of the litigation the plaintiffs were not the prevailing parties.

On October 30, 1990, the Court of Appeals reversed this court's judgment in favor of the defendant, finding subsection (b)(6)(A) of Section 318 to be unconstitutional in that it violated the doctrine of the separation of powers. The action was then remanded to this court for further proceedings. Seattle Audubon Soc'y v. Robertson, 914 F.2d 1311 (9th Cir.1990).

On May 23, 1991, the plaintiffs sought leave to file an amended complaint in order to reallege their first claim for relief under the NEPA challenging certain decisions that the BLM had made to proceed with logging in northern spotted owl habitat without preparing Supplemental Environmental Impact Statements to take into account new information concerning the potential for the extinction of the northern spotted owl. This court denied the motion of the plaintiffs to file an amended complaint on the grounds that Section 318 was a bar to the NEPA claim proposed by the plaintiffs.

On December 23, 1991, the Court of Appeals reversed this court's conclusion that Section 318 was a bar to the NEPA claim proposed by the plaintiffs and remanded the case to this court with instructions to grant leave to the plaintiffs to file an amended complaint. Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir.1991).

On January 29, 1992, the plaintiffs filed an amended complaint for declaratory and injunctive relief alleging, in part:

BLM's sale and destruction of habitat suitable for the northern spotted owl and other habitat that may affect the owl, and BLM's adoption of management strategies for the spotted owl that include continued logging of such habitat, constitute major federal actions affecting the quality of the human environment under NEPA.

BLM's sale and destruction of suitable spotted owl habitat, and habitat that may affect owls, causes cumulative, synergistic, and indirect effects that have not been examined in an EIS, nor in any other adequate NEPA document.

Significant new information regarding the habitat requirements of the northern spotted owl has been developed since the preparation of BLM's, TMPs and EISs. The decision of the BLM to proceed with continued destruction of such habitat, without preparing an EIS which considers this significant new information regarding the effects of such destruction on the spotted owl, violates NEPA and

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