Seattle Audubon Soc. v. Moseley

Decision Date28 May 1992
Docket NumberNo. C92-479WD.,C92-479WD.
Citation798 F. Supp. 1473
CourtU.S. District Court — Western District of Washington
PartiesSEATTLE AUDUBON SOCIETY, et al., Plaintiffs, v. James R. MOSELEY, et al., Defendants, and Washington Contract Loggers Association, et al., Intervenors.

COPYRIGHT MATERIAL OMITTED

Todd D. True, Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, Wash., for plaintiffs.

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.

Mark C. Rutzick, Preston, Thorgrimson, Shidler, Gates & Ellis, Portland, Or., for intervenors.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, MOTION TO STRIKE, AND MOTION FOR PRELIMINARY INJUNCTION

DWYER, District Judge.

I. INTRODUCTION

On March 7, 1991, this court entered an order in Seattle Audubon Society v. Evans, 771 F.Supp. 1081, declaring unlawful a proposal of the United States Forest Service to sell logging rights in national forest habitat areas of the northern spotted owl without complying with the requirements of the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., and its implementing regulations. The owl is an "indicator species" under NFMA and a threatened species throughout its range under the Endangered Species Act ("ESA"). The NFMA regulations 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. See also § 219.27(a)(6).

On May 23, 1991, a further order was entered in the Evans case directing the Forest Service to

have in effect by March 5, 1992, revised standards and guidelines to ensure the northern spotted owl's viability, together with an environmental impact statement, as required by NFMA and its implementing regulations,

and enjoining further sales of logging rights in spotted owl habitat areas until that was done. 771 F.Supp. at 1096.

Both orders were affirmed on appeal. 952 F.2d 297 (9th Cir.1991). The court of appeals and district court opinions in Evans set out the history and background of the timber/spotted owl controversy, which will not be repeated here.

Pursuant to the May 23, 1991, order in Evans, the Forest Service has prepared and issued a new environmental impact statement ("EIS"). On March 3, 1992, defendant James R. Moseley, in his capacity as Assistant Secretary of Agriculture, issued a Record of Decision ("ROD") adopting the Forest Service's preferred alternative from the EIS. The Forest Service then filed a notice of compliance with the May 23 order, and final judgment was entered in Evans for plaintiffs Seattle Audubon Society, et al. (SAS"), on the claims under NFMA, and for the Forest Service and Washington Contract Loggers Association, et al. ("WCLA"), on claims asserted under the Migratory Bird Treaty Act.

In the present case, filed March 25, 1992, SAS challenges the legality of the EIS and the ROD, alleging that (1) the EIS fails to assess the environmental consequences to the northern spotted owl of continued logging of its habitat, in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; and (2) the management plan adopted does not assure the viability of the owl, does not prescribe measures to protect critical habitat, and does not assure the viability of other old-growth dependent species, all in violation of NFMA.

As in the Evans case, intervenors WCLA support the position of the Forest Service.

All parties have moved for summary judgment, and all agree that summary judgment may properly be entered under Fed.R.Civ.P. 56. The briefs and other written materials submitted, and the arguments of counsel made at a hearing held on May 22, 1992, have been fully considered.

For the reasons stated in this order, the court finds that the Forest Service has not fully complied with NEPA and that it must take further action under that statute. Pending the agency's further compliance with NEPA, no ruling is made on the legality of the proposed management plan.

II. STANDING AND RIPENESS

The Forest Service argues that SAS lacks standing to challenge the ROD and EIS, and that no controversy is ripe for judicial review. Under existing law, however, standing is clearly established and the case is ripe for decision. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513-19 (9th Cir.1992).

III. STANDARD OF REVIEW

The court in reviewing a challenged administrative action determines whether the action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or was taken without observance of procedures required by law. Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 980-81 (9th Cir. 1985); 5 U.S.C. § 706. The standard is narrow and presumes the agency action is valid, Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C.Cir.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976), but does not shield agency action from a "thorough, probing, in-depth review," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

The focal point for judicial review is the administrative record in existence, not a new record made initially in the reviewing court. Asarco, Inc. v. EPA, 616 F.2d 1153, 1159 (9th Cir.1980). The court may, however, consider evidence outside the administrative record for certain limited purposes, e.g., to explain the agency's action or to determine whether its course of inquiry was insufficient or inadequate. Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989); Animal Defense Counsel v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988).

IV. MOTION TO STRIKE

In addition to citing the administrative record ("AR"), SAS and the Forest Service have filed witness declarations and have cited testimony given at an eight-day evidentiary hearing held in the Evans case a year ago. The Forest Service now moves to strike the declarations of Drs. Gordon Orians, Peter Kareiva, Daniel Doak, and Susan Harrison, filed by SAS. It argues that judicial review must be limited to the administrative record. The Forest Service is correct that the scope of review of agency action is narrow. However, materials outside the administrative record may be considered for the limited purposes set out in section III, above. In a NEPA case, the court may consider such materials if necessary to determine whether an EIS has neglected to mention a serious consequence, or failed adequately to discuss a reasonable alternative, or swept problems or criticisms "under the rug." See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-37 (9th Cir.1988). The motion to strike is therefore denied. The rulings on the summary judgment motions would be the same if the declarations were disregarded.

V. MOTIONS FOR SUMMARY JUDGMENT UNDER NEPA
A. Agency Action since May 23, 1991

The record shows without dispute that the following has occurred since the May 23, 1991, order in Evans was issued:

On September 27, 1991, notice of availability of a draft environmental impact statement ("DEIS") was published in the Federal Register. 56 Fed.Reg. 49182. The DEIS set forth four alternative management plans for the northern spotted owl. Alternative B—adoption of the Interagency Scientific Committee's Report, A Conservation Strategy for the Northern Spotted Owl (U.S.D.A., et al. 1990) ("ISC Report") —was designated as the Forest Service's preferred alternative.

On January 15, 1992, the United States Fish and Wildlife Service ("FWS") published its critical habitat designation for the owl as a threatened species under ESA. 57 Fed.Reg. 1796. The FWS noted:

Designation of critical habitat does not accomplish the same goals or have as dramatic an effect upon owl conservation as does the ISC Plan, because critical habitat does not apply a management prescription to designated areas, nor does it affect the forest matrix outside of critical habitat (estimated as an additional 12-15 million acres).

57 Fed.Reg. at 1804.

About eighty percent of the critical habitat designated by FWS is in the national forests. The Forest Service, like other agencies, consults with FWS in regard to proposed adverse modifications of habitat for endangered or threatened species. See 16 U.S.C. § 1536(a).

Notice of the availability of the final EIS at issue here ("FEIS") was published on January 31, 1992. 57 Fed.Reg. 3753. The FEIS set forth five alternative management plans for the owl, a fifth having been added at the suggestion of a timber industry group. The Forest Service again identified Alternative B, adoption of the ISC Strategy, as its preferred alternative. It rejected Alternatives C and D, which would afford more protection to the owl, and A and E, which would afford less.

On March 3, 1992, defendant Moseley signed the ROD adopting Alternative B as the management plan for northern spotted owl habitat on the National Forest System lands in Washington, Oregon, and California. See ROD; 57 Fed.Reg. 8621 (Mar. 11, 1992).

The ISC Strategy is described in the Evans decision, 771 F.Supp. at 1092-93. It calls for habitat conservation areas ("HCAs"), spacing requirements, and the "50-11-40" rule. As noted in Evans, the ISC Report "has been described by experts on both sides as the first scientifically respectable proposal regarding spotted owl conservation to come out of the executive branch"; however, it had "not been put to the test of public comment and hearings" and "may or may not prove to be adequate." Id. at 1093.

The ISC found that the owl was "imperiled over significant portions of its range because of continuing losses of habitat from logging and natural disturbances," and that "available alternatives are steadily declining throughout the bird's range." ISC Report at 1. One feature, in...

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