Seattle Audubon Soc. v. Evans

• Decision Date: 23 May 1991
• Docket Number: No. C89-160 WD.,C89-160 WD.
• Citation: 771 F. Supp. 1081
• Parties: SEATTLE AUDUBON SOCIETY, et al., Plaintiffs, v. John L. EVANS, et al., Defendants. and Washington Contract Loggers Association, et al., Intervenors.
• Court: U.S. District Court — Western District of Washington

771 F. Supp. 1081

SEATTLE AUDUBON SOCIETY, et al., Plaintiffs, v. John L. EVANS, et al., Defendants and Washington Contract Loggers Association, et al., Intervenors.

No. C89-160 WD.

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

May 23, 1991.

Thomas A Starrs, Perkins Coie, Corrie Johnson Yackulic, Todd D. True, Victor M Sher, Sierra Club Legal Defense Fund, Seattle, Wash., Gary K. Kahn, Reeves, Kehn & Eder, Portland, Or., for plaintiffs.

Susan L. Barnes, U.S. Atty's. Office, Seattle, Wash., Wells D. Burgess, Allan D Brock, U.S. Dept. of Justice, Environment and Natural Resources Div., General Litigation Section, Washington, D.C., for defendants.

Ann Forest Burns, Seattle, Wash., for amicus curiae.

Mark C. Rutzick, Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, Or., for amicus curiae and intervenors-defendants.

MEMORANDUM DECISION AND INJUNCTION

DWYER, District Judge.

I. INTRODUCTION

On March 7, 1991, the court entered an order on summary judgment declaring unlawful a proposal of defendants John L. Evans, et al. (collectively the "Forest Service") to log northern spotted owl habitat in national forests located in Washington, Oregon, and Northern California without complying with requirements of the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq. Order on Motions for Summary Judgment and for Dismissal (Mar. 7, 1991) (Dkt. # 824). On the basis of that order plaintiffs Seattle Audubon Society, et al. (collectively "SAS") have moved for a permanent injunction prohibiting the sale of logging rights in additional spotted owl habitat areas until the Forest Service complies with NFMA and its regulations by adopting standards and guidelines to assure that a viable population of the species is maintained in the forests. The Forest Service proposes a different injunction, one that would permit, in the interim, additional sales in owl habitat if they are consistent with the recommendations of the Report of the Interagency Scientific Committee to Address the Conservation of the Northern Spotted Owl ("ISC Report") issued in April 1990. Intervenors Washington Contract Loggers Association, et al. (collectively "WCLA") support the Forest Service's proposal. The two sides agree that the court should set a date for the Forest Service to adopt a plan to assure the owl's viability.

The court granted WCLA's request for an evidentiary hearing on the scope of injunctive relief, and all parties' request for prehearing discovery. See Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir.1988). An order issued April 1, 1991, specified the subjects for the hearing. Order Setting Evidentiary Hearing re Injunctive Relief (Dkt. # 867). The hearing began on April 30 and ended on May 9, 1991. All parties presented evidence, rested their cases, and gave oral argument through counsel. The evidence admitted, the arguments and briefs, and the proposed findings submitted by counsel have been fully considered.

II. HISTORY OF THIS CASE AND RECENT ADMINISTRATIVE PROCEEDINGS

The national forests are managed by the Forest Service under NFMA. Regulations promulgated under that statute provide that

fish and wildlife shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area.

36 C.F.R. § 219.19. A viable population is "one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area." Id. To insure viability, habitat must be provided to support at least a minimum number of reproductive individuals. Id.

Since not every species can be monitored, "indicator species" are observed as signs of general wildlife viability. Id. § 219.19(a)(1). The northern spotted owl is an indicator species.

While having these conservation duties, the Forest Service is also charged with managing these lands to "provide for multiple use and sustained yield of goods and services from the National Forest System in a way that maximizes long term net public benefit in an environmentally sound manner." Id. § 219.1(a). See generally C. Wilkinson & H. Anderson, Land and Resource Planning in the National Forests, 64 Or.L.Rev. 1 (1985).

In recent years logging and development have steadily reduced wildlife habitat in the Pacific Northwest. At the same time many local mills have experienced log shortages. The result is an intensified struggle over the future of the national forests.

In 1989 SAS and WCLA sued the Forest Service in this court, challenging the legality of an administrative decision adopting standards and guidelines for managing northern spotted owl habitat in the national forests. The administrative decision was set out in a Record of Decision ("ROD") issued on December 8, 1988, and an accompanying Final Supplement to the Environmental Impact Statement For an Amendment to the Pacific Northwest Regional Guide ("FSEIS"). For opposite reasons, the two sets of plaintiffs challenged the Forest Service's plan under NFMA and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and their implementing regulations.

The court consolidated the two cases, ordered them expedited, and set a final hearing date for June 13, 1989. On March 24, 1989, the court issued a temporary injunction deferring specified timber sales in Washington and Oregon for what then appeared to be a few weeks until the final hearing. Order on Motions for Preliminary Injunction and for Change of Venue at 2 (Mar. 24, 1989) (Dkt. # 97).

On May 11, 1989, the Forest Service moved for a stay of all proceedings pending completion of a conference process between itself and the Fish and Wildlife Service ("FWS"). In a separate case, Judge Zilly of this district had ruled that the FWS was acting arbitrarily and capriciously, and contrary to law, in failing to list the spotted owl as endangered or threatened under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. Northern Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F.Supp. 479 (W.D.Wash.1988). On April 25, 1989, having reconsidered in response to Judge Zilly's order, the FWS announced its intent to list the owl as "threatened" under the ESA. SAS and WCLA agreed that a stay of the present case was warranted so that the two agencies could consult. The Forest Service proposed a temporary ban on timber sales containing forty or more acres of spotted owl habitat. This was adopted by order of May 26, 1989. Order on Motion for Stay (Dkt. # 173).

The Forest Service said it would present within thirty days interim measures to protect spotted owl habitat during the FWS listing process. It did not do so. Instead it moved on August 24, 1989, for leave to go forward with eleven timber sales that had been deferred. At that point there was no spotted owl management plan in effect. The court on its own motion lifted the stay and ordered an expedited final hearing in these cases. Order Lifting Stay, etc. (Sept. 12, 1989) (Dkt. # 226).

Congress in the meantime was debating legislation which would provide a short-term supply of national forest and Bureau of Land Management ("BLM") timber to mills in Washington and Oregon without having the usual type of agency action subject to judicial review. The final result was section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub.L. No. 101-121, § 318, 103 Stat. 701, 745-50 (1989) ("section 318"), which became law on October 23, 1989. The Congressional conference committee presented the bill as necessary "because of the failure of the agencies i.e., the Forest Service and the BLM to take steps on their own to resolve these matters in a manner which could have prevented the current situation." H.R.Conf. Rep. No. 264, 101st Cong., 1st Sess., reprinted in 135 Cong.Rec. H6411 (daily ed. Oct. 2, 1989).

Section 318 included the following provisions, among others:

— It directed the Forest Service and the BLM to offer specified quantities of timber for sale in fiscal years 1989 and 1990. Subsection (a).

— It contained restrictions on the cutting of "ecologically significant old growth forest stands" except as necessary to meet the sales quota, barred logging in certain "spotted owl habitat areas," and adopted temporarily (with a few modifications) the standards and guidelines proposed in the Forest Service's December 1988 ROD. Subsections (b)(1), (2) and (3).

— It stated that Congress "determines and directs" that management of the forests for fiscal years 1989-90 according to its provisions "is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the present cases and a similar case pending in the District of Oregon." Subsection (b)(6)(A).

— It directed the Forest Service to prepare a new spotted owl plan and have it in place by September 30, 1990:

The Forest Service is directed to review and revise as appropriate the decision adopted in the December 1988 Record of Decision referenced in subsection (b)(6)(A) of this section and shall consider any new information gathered subsequent to the issuance of the Record of Decision, including the interagency guidelines for conservation of northern spotted owls developed by the Interagency Scientific Committee to address conservation of the northern spotted owl. This review, and any resulting changes to the December 1988 decision determined to be necessary by the Forest Service are to be completed and in effect not later than September 30, 1990.

Subsection (b)(6)(B).

On November 6, 1989, this court vacated the preliminary injunction because section 318 had become law as to 1989-90 timber sales. The court construed the statute as a temporary amendment of the environmental laws, and therefore rejected SAS's constitutional challenge to subsection (b)(6)(A). Memorandum Decision Re Constitutionality (Nov. 14, 1989) (Dkt. # 278).

An interlocutory...