Seattle Audubon Soc. v. Moseley

• Decision Date: 02 July 1992
• Docket Number: No. C92-479WD.,C92-479WD.
• Citation: 798 F. Supp. 1484
• Parties: SEATTLE AUDUBON SOCIETY, et al., Plaintiffs, v. James R. MOSELEY, et al., Defendants, and Washington Contract Loggers Association, et al., Intervenors.
• Court: U.S. District Court — Western District of Washington

798 F. Supp. 1484

SEATTLE AUDUBON SOCIETY, et al., Plaintiffs, v. James R. MOSELEY, et al., Defendants, and Washington Contract Loggers Association, et al., Intervenors.

No. C92-479WD.

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

July 2, 1992.

COPYRIGHT MATERIAL OMITTED

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

Christopher Lee Pickrell, U.S. Atty's Office, Seattle, Wash., Wells Burgess, Steve O'Dell, U.S. Dept. of Justice, Environment and Natural Resources Div., General Litigation Section, Washington, D.C., for defendants James R. Moseley and U.S. Forest Service.

Mark C. Rutzick, Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, Or., for intervenors-defendants Washington 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 and Northwest Forest Resource Council.

MEMORANDUM DECISION AND INJUNCTION

DWYER, District Judge.

I. INTRODUCTION

This order follows the order on cross-motions for summary judgment entered on May 28, 1992 ("May 28 order") (Dkt. # 138). The present case is a sequel to Seattle Audubon Society v. Evans, 771 F.Supp. 1081 (W.D.Wash.1991), aff'd, 952 F.2d 297 (9th Cir.1991). The Evans decision required the United States Forest Service to adopt by March 5, 1992, revised standards and guidelines to ensure the viability of the northern spotted owl in national forests located in Forest Service Regions Five and Six. In this case plaintiffs Seattle Audubon Society, et al. ("SAS"), challenge the legality of a final environmental impact statement ("FEIS") issued by the Forest Service, and a record of decision ("ROD") adopted by defendant James R. Moseley as Assistant Secretary of Agriculture, in response to the order in Evans. The case was bifurcated by agreement so that liability would be decided first and relief decided afterward if necessary. The May 28 order granted in part SAS's motion for summary judgment, finding that in three respects the Forest Service had failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. A preliminary injunction was issued on May 29 enjoining the agency from awarding further timber sales in Regions Five and Six that would log suitable habitat for the northern spotted owl until an order as to relief could be entered. (Dkt. # 139). Briefs and declarations on the issue of injunctive relief were then filed and a hearing held on June 22, 1992. All materials submitted, and the arguments of counsel, have been fully considered.

II. STANDING AND RIPENESS

The standing of SAS to challenge the EIS and ROD, and the ripeness of the case for judicial review, have already been decided but are raised again by the Forest Service in view of Lujan v. Defenders of Wildlife, ___ U.S. ___, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court in Defenders summarized the test as follows:

First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

___ U.S. at ___, 112 S.Ct. at 2136 (citations and footnote omitted).

Defenders involved a regulation limiting the consultation requirement of the Endangered Species Act to proposed actions to be taken in the United States or on the high seas, excluding actions to be taken in foreign countries. Finding that the plaintiffs lacked standing to challenge the regulation, the Court noted that they had shown only vague notions of some day visiting, or revisiting, the foreign countries where the potentially affected species were located. This was held to be too remote. Id. at ___, 112 S.Ct. at 2146. The Court also stated, however, that a person

who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.

Id. at ___, 112 S.Ct. at 2140.

Here, the declarations on file establish standing to sue under Defenders and earlier holdings. They include averments such as these:

I visit them old growth forests frequently as a hiker, camper, birdwatcher, and photographer;

I have plans this summer to re-create myself within the forests;

I am an avid naturalist and birdwatcher. I have attempted to see northern spotted owls in the past and plan to continue to find them in the future.

Marshall Declaration at 2, ¶ 3 (Dkt. # 170); Kerr Amended Declaration at 3, ¶ 5 (Dkt. # 170); Phillips-Howard Amended Declaration at 1, ¶ 2 (Dkt. # 170).

One declaration states:

I am a regular and frequent visitor to the old-growth forests. I consider the public forests of Oregon, Washington and northern California my backyard. Because I live in Eugene, Oregon, all of these forests are readily accessible to me by relatively short car trips. I regularly travel in and about these forests. In addition to the scores of visits I made during the preparation of my book, I also visit old-growth forests for recreational and educational purposes. During these trips I observe and enjoy the forests, their wildlife, streams, and views. I have called spotted owls, observed and listened to numerous other bird species, such as marbled murrelets and winter wrens, and fished for trout and salmon. I have made these trips regularly (about 30 times a yar sic) in the past and I plan to continue them in the future. For example, I have trips to federal oldgrowth forests planned for next weekend and the July 4th holiday weekend.

Wood Declaration at 2, ¶ 4 (Dkt. # 170).

The threatened injury to plaintiffs from further logging of old growth habitat for the spotted owl is concrete, specific, imminent, caused by the agency conduct in question, and redressable by a favorable ruling.

Standing and ripeness were elucidated by the court of appeals in Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513-19 (9th Cir.1992). As to ripeness, the court held that

waiting until the Department acts on a specific project would not be an adequate remedy. Moreover, a future challenge to a particular, site-specific action would lose much force once the overall plan has been approved — especially if the challenge were premised on the view that the overall plan grew out of erroneous assumptions.

Id. at 1519.

The harm will be done here if the Forest Service adopts an unlawful regulation under which forest management plans are to be adopted and logging rights sold. To postpone judicial review until specific timber sales were designed and about to be auctioned would defeat the interests not only of the plaintiffs but of the agency and the loggers as well.

III. SUMMARY JUDGMENT RULINGS UNDER NEPA

The first two NEPA violations found in the May 28 order do not need further explanation at this point. The third one does. That is the ruling that the Forest Service has violated NEPA by failing to explain or justify a rating in the FEIS of Alternative B, the plan chosen, as having a "low to medium-low probability of providing for viable populations of late-successional forest associated wildlife species other than northern spotted owls." FEIS at 3 & 4-140. The Forest Service argues that even if the rating is accurate the plan would be lawful because the agency has been required to adopt only a plan ensuring the viability of the spotted owl, not that of other species. This raises a question of fundamental importance: whether the Forest Service, under the law, may adopt a plan for the owl which it knows or believes will result in the extirpation of other vertebrate species in the national forests.

In Seattle Audubon Society v. Evans, 952 F.2d 297, 299-300, the court of appeals summarized the relevant parts of the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and the implementing regulations as follows:

The NFMA requires the Forest Service to prepare management plans for its national forests to meet the multiple-use objectives of the national forest system. 16 U.S.C. § 1604(a)-(m). In keeping with the statute's mandate, the Forest Service is required to promulgate regulations that will define how the management plans are to provide for a diversity of plant and animal communities. Id. § 1604(g)(3)(B). The Forest Service responded by promulgating the regulation at issue in the Forest Service and WCLA appeals. See 36 C.F.R. § 219.19. There are at least three major components to this regulation. First, the regulation establishes as its purpose management of the forest to maintain a "viable population" of existing species. Id. Second, the Forest Service must select "indicator species" for the purpose of evaluating wildlife decisions. Id. § 219.19(a)(1)-(6). For these species, forest plans "shall establish objectives for the maintenance and improvement of habitat ... to the degree consistent with overall multiple use objectives...." Id. § 219.19(a). Threatened and endangered species may be selected as indicators "where appropriate." Id. § 219.19(a)(1). A third part of this regulation requires the Forest Service to identify habitats critical to threatened or endangered species and prescribe measures to prevent their adverse modification. Id. § 219.19(a)(7). The Forest Service

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