Seattle Audubon Society v. Evans
| Citation | 952 F.2d 297 |
| Decision Date | 23 December 1991 |
| Docket Number | 91-35529,91-35563,Nos. 91-35528,91-35782,91-35802 and 91-35992,s. 91-35528 |
| Parties | 22 Envtl. L. Rep. 20,372 SEATTLE AUDUBON SOCIETY, et al., Plaintiffs-Appellants, v. John L. EVANS, in his official capacity as Chief, U.S. Forest Service, et al., Defendants-Appellees. SEATTLE AUDUBON SOCIETY, et al., Plaintiffs-Appellees, v. UNITED STATES FOREST SERVICE, Defendant-Appellant, and Washington Contract Loggers Association, Defendants-Intervenors-Appellees. SEATTLE AUDUBON SOCIETY, Plaintiff-Appellee, v. John L. EVANS, in his official capacity as Chief, U.S. Forest Service, Defendant, and Washington Contract Loggers Association, et al., Defendants-Intervenors-Appellants. PORTLAND AUDUBON SOCIETY, Plaintiff-Appellant, v. Manuel LUJAN, Jr., in his official capacity as Secretary of Interior, Defendant-Appellee, and Northwest Forest Resource Council, et al., Defendants-Intervenors-Appellees. (Two Cases) |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Michael D. Axline, Western Environmental Law Clinic, Eugene, Oregon and Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, Wash., for Seattle Audubon Society, et al.
Anne S. Almy, Thomas Lee, and Louise F. Milkman, U.S. Dept. of Justice, Washington, D.C., for U.S. Forest Service, et al. and Secretary, U.S. Dept. of Interior.
Mark C. Rutzick and Cynthia L. Hull, Preston, Thorgrimson, Shidler, Gates and Ellis, Portland, Or., for Washington Contract Loggers Ass'n, et al.
Phillip D. Chadsey and Kevin Q. Davis, Stoel, Rives, Boley, Jones & Grey, Portland, Or., for The Ass'n of O & C Counties and Benton County.
Appeals from the United States District Court for the Western District of Washington.
Appeals from the United States District Court for the District of Oregon.
Before GOODWIN, SCHROEDER and PREGERSON, Circuit Judges.
These appeals all arise out of litigation instituted by the Portland Audubon Society (PAS) and the Seattle Audubon Society (SAS) challenging logging in old-growth national forests as violative of several federal statutes.
In appeal nos. 91-35529 and 91-35563, the defendant United States Forest Service and intervenor-defendant Washington Contract Loggers Association (WCLA), appeal from an injunction entered by the district court in Seattle requiring the Forest Service to put into effect revised standards and guidelines to ensure the viability of the northern spotted owl and enjoining, in the meantime, timber sales in spotted owl habitat in national forests in Washington, Oregon and Northern California. The district court held such planning was required under the National Forest Management Act and regulations promulgated pursuant to it that require Forest Service planning to ensure the viability of vertebrate and non-vertebrate species. See 16 U.S.C. §§ 1600-1687 (1985) ("NFMA"); 36 C.F.R. § 219.19.
In its appeal, the Forest Service's principal contention is that it is no longer required under the NFMA to plan for the future survival of the spotted owl because the Fish and Wildlife Service has declared the owl threatened under the Endangered Species Act, 16 U.S.C. §§ 1531-1543 (1985) ("ESA"). The Forest Service contends that it is required to plan for "viable" species, and that a species declared threatened or endangered under the ESA is no longer viable.
The district court held that the listing under the Endangered Species Act triggered new obligations under that Act but did not reduce the planning obligations of the Forest Service under the NFMA. We agree with the district court that the government's position in this case is inconsistent with the language of the key regulation, the purpose of the applicable statutes and with the position the Forest Service itself has taken in other contexts.
WCLA's appeal in principal part challenges some of the district court's findings which the government does not dispute. We hold they are not clearly erroneous.
The district court's Memorandum Decision and Injunction entered May 23, 1991 are published at 771 F.Supp. 1081 (1991) and contain extensive findings. We affirm the district court's injunction and incorporate by reference into this Opinion the district court's Memorandum Decision.
While the district court in Seattle granted an injunction pursuant to the NFMA, the district courts in both Seattle and Portland rejected plaintiffs' claim that the logging of old-growth timber, that adversely affects owl habitat, constitutes a violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711 (1985) ("MBTA"). In appeal nos. 91-35528 and 91-35782, the Seattle Audubon Society and the Portland Audubon Society appeal those rulings denying injunctive relief based on the MBTA. We affirm in those appeals as well.
In consolidated appeal nos. 91-35802 and 91-35992 the Portland Audubon Society appeals the district court's ruling denying it permission to reallege the NEPA claim we held was barred in Portland Audubon Soc'y v. Lujan, 884 F.2d 1233 (9th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). We hereby reverse that ruling.
THE FOREST SERVICE'S APPEAL
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. 1 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 is also required to determine objectives for appropriate conservation measures for threatened or endangered species. Id.
In 1988, the Forest Service issued a record of decision (ROD) to amend its regional guide for the Pacific Northwest. Pursuant to NFMA requirements, these amendments specified standards and guidelines to provide for the viability of the northern spotted owl. In 1989, SAS filed suit against the Forest Service challenging the 1988 ROD. SAS alleged that the regional guide's standards and guidelines would not maintain viable populations of the owl.
On June 22, 1990, the Fish and Wildlife Service ("FWS") listed the owl as a threatened species throughout its range. The Forest Service then vacated the standards and guidelines in the regional guide and revoked the 1988 ROD. 55 Fed.Reg. 40412 (October 3, 1990). The Forest Service announced that "[a]ll Forest Service actions involving the northern spotted owl or its habitat will henceforth be carried out in compliance with the requirements of the Endangered Species Act, not 36 C.F.R. § 219.19." Id. at 40413.
In October 1990, SAS filed an amended complaint alleging that this Forest Service announcement notice was unlawful. SAS alleged that the Forest Service had to (1) prepare regional guidelines that ensured a viable population of the species throughout the Pacific Northwest's national forests pursuant to the NFMA and (2) comply with the requirements of the ESA. SAS sought an injunction against all timber sales in spotted owl habitat pending preparation of such regional guidelines, as well as an accompanying environmental impact statement.
Meanwhile, Congress enacted 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"). Section 318, which became law on October 23, 1989, was basically designed to provide a short-term supply of timber to Washington and Oregon lumber mills by limiting judicial review. On September 18, 1990 we issued our opinion finding section 318(b)(6)(A) unconstitutional under the separation of powers doctrine. Seattle Audubon Soc'y v. Robertson, 914 F.2d 1311 (9th Cir.1990), cert. granted, --- U.S. ----, 111 S.Ct. 2886, 115 L.Ed.2d 1051 (1991).
Subsequently, SAS resumed its challenge to twelve proposed timber sales as failing to meet the requirements of existing environmental laws. The Forest Service argued that section 318 "occupies the field," and therefore, existing laws were no longer applicable.
The district court disagreed with the Forest Service, noting that this court had clearly ruled that, in fact, the opposite was true. "Section 318 does not, by its plain language, repeal or amend the environmental laws ... though some sections add additional requirements." Seattle Audubon, 914 F.2d at 1316. On December 16, 1990, the district court ruled that twelve fiscal year 1990 timber sales advertised by the Forest Service could not be awarded because the agency had failed to comply with applicable laws. In particular, the court found that the Forest Service had failed to develop "plans for units of the national forest system" that "incorporate the standards and guidelines" required by 16 U.S.C. § 1604(g) and 36 C.F.R. § 219.19 (NFMA). The court enjoined the sales pending the Forest...
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