Seattle Audubon Soc. v. Robertson, 90-35774
| Decision Date | 26 April 1991 |
| Docket Number | No. 90-35774,90-35774 |
| Citation | 931 F.2d 590 |
| Parties | 21 Envtl. L. Rep. 21,040 SEATTLE AUDUBON SOCIETY; Pilchuck Audubon Society; Washington Environmental Council; Washington Native Plants Society; Oregon Natural Resources Council, Inc.; Portland Audubon Society; Lane County Audubon Society, Plaintiffs-Appellants, Washington Contract Loggers Association; William Pickell, Plaintiffs-Appellees, v. F. Dale ROBERTSON, in his official capacity as Chief, United States Forest Service; United States Forest Service, an agency of the United States, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Todd D. True, Sierra Club Legal Defense Fund, Seattle, Wash., for plaintiffs-appellants, Seattle Audubon Society, et al.
Mark C. Rutzick, Preston, Thorgrimson, Ellis & Holman, Portland, Or., for plaintiffs-appellees, Washington Contract Loggers Ass'n.
Anne S. Almy, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees, F. Dale Robertson and U.S. Forest Service.
Appeal from the United States District Court for the Western District of Washington.
Before GOODWIN, SCHROEDER and PREGERSON, Circuit Judges.
We have before us once again the controversy over logging of the old growth forests of the Pacific Northwest and the impact of the logging on the northern spotted owl. Today's dispute is a consequence of our recent decision in this very case, which we filed on September 18, 1990, and amended on October 30. See Seattle Audubon Society v. Robertson, 914 F.2d 1311 (9th Cir.1990). We held that Congress violated the separation of powers doctrine when it enacted section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub.L. No. 101-121, 103 Stat. 701, 745-50 (1989) ("Section 318"). 1 A few days after our mandate issued, Seattle Audubon Society and other plaintiff organizations challenged the United States Forest Service's decision to allow logging on six tracts of old growth forest. The district court held that these six challenges were untimely. We reverse.
The logging of old growth forests poses a grave danger to the continued survival of the northern spotted owl. This litigation began as a challenge to the Forest Service's 1988 administrative decision to continue logging in the thirteen national forests of Oregon and Washington where spotted owls still survive. The decision was set out in a December 8, 1988 Record of Decision (ROD) signed by the Chief of the United States Forest Service, and in an accompanying Final Supplement to the Environmental Impact Statement for an Amendment to the Northwest Regional Guide. Although the plan did not authorize logging in designated Spotted Owl Habitat Areas, the plaintiffs contend the plan's protections are wholly inadequate and are based on a flawed evaluation of the danger that continued logging poses to the owl's habitat. In early 1989, the plaintiffs filed suit in United States District Court in Seattle and asked for declaratory and injunctive relief. The complaint alleged that by adopting the plan, the Forest Service violated the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Migratory Bird Treaty Act (MBTA). 2
The Washington Contract Loggers Association also challenged the Forest Service's plan in the United States District Court in Seattle. It contended that the plan did not permit enough logging. The district court denied the loggers' motion for a preliminary injunction and consolidated their case with the litigation filed by Seattle Audubon Society. 3
In March 1989, the district court granted Seattle Audubon's motion for a preliminary injunction against 163 specified timber sales. In May 1989, the court preliminarily enjoined all sales of timber that comprised more than forty acres of old-growth forest.
With this injunction against significant sales of the Forest Service's old-growth forest in place, and with a similar lawsuit on behalf of the spotted owl pending against the Bureau of Land Management in United States District Court in Portland, 4 ] Congress took action. In enacting section 318, "The Northwest Timber Compromise of 1989," Congress declared that it attempted to balance the goals of ensuring a predictable supply of timber, protecting the northern spotted owl, and preserving significant stands of old-growth forest. H.R.Conf.Rep. No. 264, 101st Cong., 1st Sess. 87 (1989). Congress enacted section 318 as a temporary measure to govern the old-growth forests until the end of the fiscal year, September 30, 1990. Section 318(a)(1) required that the Forest Service offer 7.7 billion board feet of timber for sale from the national forests of Oregon and Washington, with 5.8 billion board feet to come from the thirteen national forests that contain northern spotted owls. 5 In subsection (b)(3), the Act provided that no logging would be permitted in areas designated as Spotted Owl Habitat Areas (SOHAs) in the Forest Service plan adopted in 1988. Subsection (b)(3) also increased the size of several specified SOHAs, thus setting aside additional acreage where logging would be banned. Subsection (b)(3)(F) referred to the 1988 forest management plan and provided that "[a]ll other standards and guidelines contained in the Chief's Record of Decision are adopted."
Section 318 included some substantive and procedural criteria to guide the Forest Service in selecting areas of the forest for logging. For example, subsection (b)(1) instructed the Forest Service to minimize fragmentation of ecologically significant old growth forest that contains northern spotted owls. It also provided that location of proposed timber sales would be reviewed by advisory panels of local citizens with diverse views, and it required the Forest Service to consider the input provided by these citizen groups.
In subsection (g), section 318 provided for expedited judicial review of administrative decisions to offer particular tracts of timber for sale. It required that challenges to a timber sale be filed in district court within fifteen days of its advertisement. It further provided that courts could not temporarily restrain or preliminarily enjoin administrators from carrying out decisions made during fiscal year 1990 to sell timber in forests inhabited by spotted owls. Courts retained, however, the power to permanently enjoin, modify, or void a proposed timber sale that was arbitrary, capricious, or otherwise not in accord with the law. Subsection (g) further provided that challenges to timber sales would take priority on the calendars of district courts, which were required to rule on the merits within forty-five days, unless the Constitution required more time.
The focus of our recent decision was subsection (b)(6)(A), where Congress attempted to overrule the preliminary injunction issued by the district court judge in this case. In subsection (b)(6)(A), Congress identified this lawsuit by its case name and its docket number in the district court. Congress declared that management of Forest Service land in accordance with the guidelines of subsection (b)(3) adequately satisfied the requirements of the statutes on which the plaintiffs based their complaint. 6
Section 318 became law on October 23, 1989. On November 6, the district court concluded that subsection (b)(6)(A) required that it vacate its preliminary injunction. It ruled that Congress had temporarily suspended, during fiscal year 1990, the environmental laws that the plaintiffs invoke in this litigation. The district court did not dismiss the case but retained jurisdiction, expecting the controversy to resume after the end of fiscal year 1990. 7
On appeal, we reversed and held that courts cannot give effect to the first sentence of subsection (b)(6)(A). We explained that Congress violated the separation of powers doctrine by attempting to dictate to the judiciary how to decide the outcome of a pending case. We acknowledged that Congress has the power to affect the outcome of a pending case by amending the legislation upon which the litigants rely. We concluded, however, that Congress had not amended the National Environmental Policy Act, the National Forest Management Act, or the Migratory Bird Treaty Act. Because those statutes were still in place, it was the job of the judiciary, not the Congress, to determine whether the actions of the Forest Service complied with those statutes. See Seattle Audubon Society v. Robertson, 914 F.2d 1311 (9th Cir.1990). Our mandate issued on September 24, 1990.
Within three days, the plaintiffs challenged six timber sales as violating provisions of the National Environmental Policy Act, the National Forest Management Act, and the Migratory Bird Treaty Act. They asked for a permanent injunction. The plaintiffs acknowledged that their challenges were not filed within fifteen days of the initial advertisement of the timber sales, as required by subsection (g) of section 318. Without disputing the general applicability of the 15-day limitations period, plaintiffs argued that the doctrine of equitable tolling should excuse their late challenges. They argued that the limitations period should be tolled during the time that their challenge to the constitutionality of subsection (b)(6)(A) was pending before this court. The district court ruled that the doctrine of equitable tolling did not apply to the 15-day limitations period of subsection (g). It further ruled that even if the limitations period could be equitably tolled, the plaintiffs were not entitled to the benefits of the doctrine in this case. We have jurisdiction over this timely interlocutory appeal under 28 U.S.C. Sec. 1292(a)(1) (1988).
Plaintiffs do not challenge the applicability of the fifteen-day limitations period. For the purposes of this appeal, we therefore assume, without decding, that this limitations period ordinarily...
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