Seattle Audubon Soc. v. Lyons, No. C92-479WD

• Court: United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
• Writing for the Court: John S. Karpinski, Vancouver, WA, Stephen M. Truitt, Washington, DC, for Native Forest Council
• Citation: 871 F. Supp. 1291
• Parties: SEATTLE AUDUBON SOCIETY, et al., Plaintiffs, v. James LYONS, in his official capacity as Assistant Secretary of Agriculture, et al., Defendants, and Washington Contract Loggers Association, et al., Defendant-Intervenors. SAVE THE WEST, Plaintiff, v. James LYONS, et al., Defendants. NATIVE FOREST COUNCIL, Plaintiff, v. Bruce BABBITT, et al., Defendants. The SIERRA CLUB, Plaintiff, v. Michael ESPY, et al., Defendants.
• Decision Date: 21 December 1994
• Docket Number: No. C92-479WD,C94-803WD and C94-820WD.,C94-758WD

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SEATTLE AUDUBON SOCIETY, et al., Plaintiffs,
v.
James LYONS, in his official capacity as Assistant Secretary of Agriculture, et al., Defendants,
and
Washington Contract Loggers Association, et al., Defendant-Intervenors.
SAVE THE WEST, Plaintiff,
v.
James LYONS, et al., Defendants.
NATIVE FOREST COUNCIL, Plaintiff,
v.
Bruce BABBITT, et al., Defendants.
The SIERRA CLUB, Plaintiff,
v.
Michael ESPY, et al., Defendants.

Nos. C92-479WD, C94-758WD, C94-803WD and C94-820WD.

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

December 21, 1994.

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Todd D. True, Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, Peggy Hennessy, Portland, OR, for Seattle Audubon Soc

Todd D. True, Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, for Washington Environmental Council, Pilchuck Audubon Soc., Nat. Audubon Soc., Portland Audubon Soc., The Wilderness Soc., Headwaters, Klamath Forest Alliance, Northcoast Environmental Center.

Todd D. True, Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, Michael D. Axline, Western Environmental Law Center, Eugene, OR, for Lane County Audubon Soc.

Todd D. True, Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, Gary K. Kahn, Reeves, Kahn & Eder, Portland, OR, Peggy Hennessy, Portland, OR, for Forest Conservation Council.

Gary K. Kahn, Reeves, Kahn & Eder, Portland, OR, Peggy Hennessy, Portland, OR, for Save the West.

John S. Karpinski, Vancouver, WA, Stephen M. Truitt, Washington, DC, for Native Forest Council.

Gregory Thomas Costello, Riddell, Williams, Bullitt & Walkinshaw, Seattle, WA, for The Sierra Club.

Payton Smith, Davis Wright Tremaine, Seattle, WA, for Cal. Forestry Ass'n.

Christopher Lee Pickrell, U.S. Attys. Office, Seattle, WA, Beverly Sherman Nash, Stephen J. Odell, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC, for James R. Moseley, U.S. Forest Service.

Christopher Lee Pickrell, U.S. Attys. Office, Seattle, WA, Wells D. Burgess, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC, for Michael Espy.

Mark C. Rutzick, Law Offices of Mark C. Rutzick, Portland, OR, for Wash. Contract Loggers Ass'n, Burgess Logging Co. Inc., Lone Rock Timber Co. Inc., Jackie Bryan Cox, Freres Lumber Co. Inc., Norman V. Persons, A. Troy Reinhart, Gregory A. Miller.

John James Leary, Jr., James R. Hennessey, Smith & Leary, Seattle, WA, Mark C. Rutzick, Law Offices of Mark C. Rutzick, Portland, OR, for Northwest Forest Resource Council.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT RE 1994 FOREST PLAN

DWYER, District Judge.

I. INTRODUCTION

The legality of a forest management plan adopted by the Secretaries of Agriculture and Interior must be decided in these consolidated

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cases. Among the federal lands in Washington, Oregon, and Northern California are about twenty-four million acres that are within the geographic range of the northern spotted owl. The plan to manage this large area was adopted in response to orders entered in this litigation (see Seattle Audubon Soc'y v. Moseley, 798 F.Supp. 1484 (W.D.Wa.1992), aff'd sub nom., Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir. 1993), and in the District of Oregon (see Portland Audubon Soc'y v. Lujan, 795 F.Supp. 1489 (D.Or.1992), aff'd sub nom., Portland Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th Cir.1993)). The Secretaries and their departmental agencies — the United States Forest Service and the Bureau of Land Management ("BLM") — submit that the new plan, jointly adopted following a final supplemental environmental impact statement ("FSEIS") by a record of decision ("ROD") issued on April 13, 1994, satisfies all requirements of statutory and regulatory law

The plan is challenged from two sides. Seattle Audubon Society ("SAS") and several other environmental groups (the "plaintiffs") contend that compliance with the environmental laws is still inadequate. They seek an order remanding the matter to the agencies for further analysis and explanation, with an injunction against all or nearly all timber sales in the meantime.

On the other side is the Northwest Forest Resource Council ("NFRC"), an association representing loggers, mill owners, and others in the timber industry. NFRC has been an intervenor-defendant in the first-filed of these cases (No. C92-479WD) since 1992, but brought its challenges to the 1994 plan in two suits filed, with industry co-parties, in the United States District Court for the District of Columbia, Northwest Forest Resource Council v. Thomas and Northwest Forest Resource Council v. Dombeck (Civil Nos. 94-1032 (TPJ) and 94-1031 (TPJ) in that court). The industry challenges to the plan are interrelated with those of the environmental plaintiffs. The court in the District of Columbia transferred the Thomas case to this district, and stayed the Dombeck case, so that the issues could be decided here and duplicative litigation avoided. When NFRC voluntarily dismissed the transferred case without prejudice, this court allowed the federal defendants to cross-claim against NFRC for declaratory relief on its claims of illegality asserted in the Thomas and Dombeck complaints. That ruling permits both sides' challenges to the 1994 forest plan to be decided together. If NFRC's contentions were upheld against the cross-claims for declaratory judgment, the result would be a remand to the agencies.

The plaintiffs and the federal defendants have moved for summary judgment. There are no issues for trial and, under the provisions of Fed.R.Civ.P. 56, summary judgment is appropriate.

For the reasons given below, the court finds that the federal defendants have acted within the lawful scope of their discretion in adopting the 1994 forest plan. The question is not whether the court would write the same plan, but whether the agencies have acted within the bounds of the law. On the present record, the answer to that question is yes.

The order now entered, if upheld on appeal, will mark the first time in several years that the owl-habitat forests will be managed by the responsible agencies under a plan found lawful by the courts. It will also mark the first time that the Forest Service and BLM have worked together to preserve ecosystems common to their jurisdictions.

The Secretaries have noted, however, that the plan "will provide the highest sustainable timber levels from Forest Service and BLM lands of all action alternatives that are likely to satisfy the requirements of existing statutes and policies." ROD at 61. In other words, any more logging sales than the plan contemplates would probably violate the laws. Whether the plan and its implementation will remain legal will depend on future events and conditions. These are described below.

II. HISTORY OF THE CONTROVERSY

The background and history of the legal struggle over management of the federal forests that are home to the northern spotted

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owl are described in Seattle Audubon Soc'y v. Evans, 771 F.Supp. 1081 (W.D.Wa.1991), aff'd, 952 F.2d 297 (9th Cir.1991)

After decades of logging and development, perhaps ten percent of the original old growth forest remains. See Evans, 771 F.Supp. at 1088. The owl is an indicator species under 36 C.F.R. § 219.19. Its waxing or waning is a viability measure for other wildlife — for an ecosystem — in the remaining old growth.

In 1988 the Forest Service adopted a plan for management of the owl forests within its jurisdiction. Environmental and industry groups sued in this court, challenging the plan's legality. While the case was pending, the United States Fish & Wildlife Service ("FWS") announced on April 25, 1989, its intent to list the owl as "threatened" under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Soon afterward, Congress enacted a temporary statute, which became law on October 23, 1989, directing the Forest Service and the BLM to offer specified quantities of timber for sale in fiscal years 1989 and 1990. The statute, known as section 318, was based upon wildlife viability assumptions that the federal agencies later recognized were false; if logging continued at the levels mandated, some vertebrate species would vanish from the federal forests.

In May 1990 an interagency scientific committee ("ISC") proposed a plan for conservation of the spotted owl. In October of that year the Forest Service published a notice that future timber sales would be consistent with the ISC recommendation; but the notice did not adopt standards and guidelines for the management of the owl under procedures required by the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and was not accompanied by an environmental impact statement as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.

The legal adequacy of the 1989 notice was challenged. On March 7, 1991, this court entered an order declaring unlawful the Forest Service proposal to log spotted owl habitat without complying with statutory requirements. See Seattle Audubon Soc'y v. Evans, 771 F.Supp. at 1082-83. Following an eightday evidentiary hearing on the scope of injunctive relief, the court issued an injunction protecting owl habitat from further timber sales pending the Forest Service's adoption of a management plan in compliance with NFMA. Id. at 1096.

In January 1992, the Forest Service published a supplemental EIS, and in March of that year it adopted an ROD establishing guidelines for managing spotted owl habitat. SAS and co-plaintiffs filed Cause No. C92-479WD challenging the adequacy of the ROD and EIS; NFRC and other industry parties...