Portland Audubon Soc. v. Lujan
| Decision Date | 18 May 1989 |
| Docket Number | Civ. No. 87-1160-FR. |
| Citation | 712 F. Supp. 1456 |
| Court | U.S. District Court — District of Oregon |
| Parties | PORTLAND AUDUBON SOCIETY, Headwaters, Lane County Audubon Society, Oregon Natural Resources Council, the Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Umpqua Valley Audubon Society, Natural Resources Defense Council, Plaintiffs, v. Manuel LUJAN, Jr., 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., the Association of O & C Counties and Benton County, Douglas County, Inc., dba Douglas County Forest Products Company, Medford Corporation, and Rogge Forest Products, Inc., Defendants-Intervenors. |
Victor M. Sher, Todd D. True, Sierra Club Legal Defense Fund, Seattle, Wash., for plaintiffs Portland Audubon Soc., Headwaters, The Wilderness Soc., Sierra Club, Inc., Siskiyou Audubon Soc., Cent. Oregon Audubon Soc., Kalmiopsis Audubon Soc., Umpqua Valley Audubon Soc., and Nat. Resources Defense Council.
Michael D. Axline, John E. Bonine, Western Nat. Resources Law Clinic, University of Oregon School of Law, Eugene, Or., for plaintiffs Lane County Audubon Soc. and Oregon Nat. Resources Council.
Charles H. Turner, U.S. Atty., Thomas C. Lee, Asst. U.S. Atty., Portland, Or., Roger W. Nesbit, Sp. Asst. U.S. Atty., Portland, Or., for defendant Manuel Lujan, Jr.
Mark C. Rutzick, Robert D. Nesler, Preston, Thorgrimson, Ellis & Holman, Portland, Or., for defendants-intervenors, Northwest Forest Resource Council, Huffman & Wright Logging Co., Freres Lumber Co., Inc., Lone Rock Timber Co., Inc., Scott Timber Co., Clear Lumber Mfg. Corp., Yoncalla Timber Products, Inc., Cornett Lumber Company, Inc., Douglas County, Inc., dba Douglas County Forest Products Co., Medford Corp., and Rogge Forest Products, Inc.
Phillip D. Chadsey, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for defendants-intervenors, The Ass'n of O & C Counties and Benton County.
The matters before the court are the cross-motions for summary judgment filed by the plaintiffs (# 149) and the defendant, Manuel Lujan, Jr., in his official capacity as Secretary, United States Department of Interior, hereinafter referred to as Bureau of Land Management (BLM) (# 161).
Plaintiffs, Portland Audubon Society, Headwaters, Lane County Audubon Society, Oregon Natural Resources Council, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Umpqua Valley Audubon Society, and Natural Resources Defense Council (hereinafter referred to as Portland Audubon Society), are environmental groups seeking to protect the habitat of the northern spotted owl in the States of Oregon and Washington.
The natural habitat of the spotted owl is old-growth timber.
Manual Lujan, in his capacity as Secretary of the United States Department of the Interior, heads the BLM which manages 2,386,500 acres of federal lands in five districts in western Oregon. The director of the BLM for the State of Oregon is in the process of selling for harvesting tracts of old-growth timber located in seven management districts within the State of Oregon.
The Northwest Forest Resources Council, eight counties within the State of Oregon, and various individual contractors were allowed to intervene.
The Portland Audubon Society filed this action seeking declaratory and injunctive relief. It asks the court to declare that the BLM's sales of old-growth timber in natural spotted owl habitat without examining, inter alia, new information on the spotted owl in a supplemental EIS violates the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), and 40 C.F.R. § 1502.9(c); that defendant's Forest Resources Policy Statement is contrary to the Oregon and California Lands Act and the Federal Lands Policy and Management Act; that defendant's sales of old-growth timber which result in the death of spotted owls violate the Migratory Bird Treaty Act; that defendant's actions are not in accordance with law, contrary to 5 U.S.C. § 706(2)(A); and that defendant's actions are not in compliance with the procedures required by law, contrary to 5 U.S.C. § 706(2)(D). The Portland Audubon Society asks the court to enjoin the BLM from offering the old-growth sales and from offering any additional old-growth sales within a 2.1 mile radius of known habitat sites of the spotted owl until the BLM complies with the law. The Portland Audubon Society also seeks an award of reasonable attorney fees and costs.
After a hearing, the court entered a preliminary injunction pending the resolution of these motions for summary judgment.
During the late 1970's and early 1980's, the BLM conducted an intensive planning effort for its districts in western Oregon. As part of that planning effort, each district prepared one or more Environmental Impact Statement(s) pursuant to NEPA, 42 U.S.C. § 4332. From 1978 through 1983, an Environmental Impact Statement was prepared pursuant to the Timber Management Plan for each of the following districts:
Josephine: October, 1978
Jackson-Klamath: November, 1979
South Coast Curry: May, 1981
Westside Salem: January, 1982
Eastside Salem: May, 1983
Eugene: May, 1983
Roseburg: May, 1983
Each Environmental Impact Statement contains an evaluation of the environmental impact that is predicted from the implementation of each Timber Management Plan. Each Environmental Impact Statement sets an annual allowable timber harvest for the district or sub-district expressed in terms of millions of cubic and board feet. The annual allowable timber harvest for each district or sub-district was determined by the constraints identified in each proposed decision. Alternatives in each Environmental Impact Statement were developed to emphasize one or several management values. For example, the five management values emphasized in the Jackson-Klamath Final Timber Management Environmental Statement were:
The Jackson-Klamath Final Timber Management Environmental Statement, which includes hundreds of pages, contains, among others, the following chapters:
In Chapter 2, under the "Description of the Environment," the Jackson-Klamath Final Timber Management Environmental Statement contains the statement that the spotted owl, listed by the State of Oregon as a threatened species, is a permanent resident of the planning area. The Jackson-Klamath Final Timber Management Environmental Statement also indicates known nests of spotted owl in a map of the area. As to "Impacts of the Proposed Action," the Jackson-Klamath Final Timber Management Environmental Statement notes as follows:
Jackson-Klamath Final Timber Management Environmental Statement, p. 3-41.
The report concludes:
In the final Record of Decision, Alternative 3b was chosen for implementation. The Jackson-Klamath Final Timber Management Environmental Statement describes the effect of Alternative 3b on the spotted owl as follows:
About 35 percent of the old growth currently existing on the high intensity lands of the JKSYUs would be harvested during the first decade. This could mean a 35 percent reduction of old-growth dependent species such as the northern spotted owl, redback vole and pileated woodpecker on these lands. Old growth would be eliminated on the high...
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Portland Audubon Soc. v. Lujan, Civ. No. 87-1160-FR.
...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 initially enacted on December 21, 1987, and reenacted without chan......
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...the agency's decision not to prepare a supplemental EIS was arbitrary, capricious, and an abuse of discretion. Portland Audubon Soc'y v. Lujan, 712 F.Supp. 1456, 1485 (D.Or. 1989). The court concluded, however, that a section of the Department of the Interior and Related Agencies Appropriat......
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