Sierra Club v. Babbitt, Nos. 93-35482

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: TROTT; PREGERSON
• Citation: 65 F.3d 1502
• Parties: 25 Envtl. L. Rep. 21,539, 95 Cal. Daily Op. Serv. 7290, 95 Daily Journal D.A.R. 12,451 SIERRA CLUB; Headwaters, Inc.; Forest Conservation Council; and Oregon Natural Resources Council, Plaintiffs-Appellees, v. Bruce BABBITT, Secretary, U.S. Department of Interior, Defendant, and Seneca Sawmill Company, an Oregon corporation, Defendant-intervenor-Appellant. SIERRA CLUB, Plaintiff-Appellee, v. Bruce BABBITT, Defendant-Appellant. SIERRA CLUB, Plaintiff-Appellant, v. Bruce BABBITT, Defendant-Appellee, and Seneca Sawmill Company, an Oregon corporation, Defendant-intervenor-Appellee.
• Docket Number: Nos. 93-35482,93-35498 and 93-35509
• Decision Date: 15 September 1995

Page 1502

65 F.3d 1502 25 Envtl. L. Rep. 21,539, 95 Cal. Daily Op.
Serv. 7290,
95 Daily Journal D.A.R. 12,451 SIERRA CLUB; Headwaters, Inc.; Forest Conservation
Council; and Oregon Natural Resources Council,
Plaintiffs-Appellees,
v.
Bruce BABBITT, Secretary, U.S. Department of Interior, Defendant,
and
Seneca Sawmill Company, an Oregon corporation,
Defendant-intervenor-Appellant.
SIERRA CLUB, Plaintiff-Appellee,
v.
Bruce BABBITT, Defendant-Appellant.
SIERRA CLUB, Plaintiff-Appellant,
v.
Bruce BABBITT, Defendant-Appellee,
and
Seneca Sawmill Company, an Oregon corporation,
Defendant-intervenor-Appellee. Nos. 93-35482, 93-35498 and 93-35509. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Jan. 13, 1995.
Decided Sept. 15, 1995.

Page 1504

William H. Sherlock, Ashland, OR; and Gary K. Kahn, Reeves, Kahn & Eder, Portland, OR, for plaintiffs-appellees-cross-appellants.

Peter A. Appel, United States Department of Justice, Washington, DC, for defendant-appellant-cross-appellee.

Mark C. Rutzick, Portland, OR, for defendant-intervenor-appellant-appellee.

Appeals from the United States District Court for the District of Oregon.

Before: PREGERSON and TROTT, Circuit Judges, and FITZGERALD, ^* Senior District Judge.

Opinion by Judge Trott; Dissent by Judge Pregerson.

TROTT, Circuit Judge:

OVERVIEW

Sierra Club and other environmental organizations filed suit against the Secretary of the Interior Bruce Babbitt ("Secretary") seeking to enjoin Seneca Sawmill Company's ("Seneca") construction of a logging road on right-of-way crossing Bureau of Land Management ("BLM") forestland. Sierra Club alleged the BLM failed to comply with the procedural commandments of the National Environmental Protection Act of 1969 ("NEPA"), 42 U.S.C. Sec. 4321 et seq. and the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. Sec. 1531 et seq. before allowing Seneca to begin its road construction project. On cross-motions for summary judgment, the district court ruled in favor of the BLM and Seneca on Sierra Club's NEPA claim, but granted Sierra Club's motion on the ESA claim. The district court enjoined further right-of-away construction until either the BLM or Seneca complied with the ESA's requirements. All parties timely appealed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm in part, reverse in part, and remand.

BACKGROUND

A. The Statutory Framework

1. The Endangered Species Act

In an effort to prevent the extinction of various fish, wildlife, and plant species, Congress in section 4 of the ESA, 16 U.S.C. Sec. 1533(a), directed the Secretary to list endangered and threatened species and to designate habitat critical to the survival of those species. Once a species has been afforded protection under section 4, federal agencies must comply with the procedural and substantive requirements contained in section 7 of the ESA, 16 U.S.C. Sec. 1536. The purpose of section 7 is to avoid agency activities that will unfavorably affect a listed species. Thus, a federal agency is prohibited from authorizing, funding, or carrying out any action that is likely to jeopardize the continued existence of a protected species or adversely modify its critical habitat. 16 U.S.C. Sec. 1536(a)(2). To accomplish the goal of this substantive requirement, section 7(a)(2) of the ESA imposes a procedural duty on federal agencies to consult with the U.S. Fish and

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Wildlife Service ("FWS") ¹ before engaging in a discretionary action which may affect a protected species. 16 U.S.C. Sec. 1536(a)(2); 50 C.F.R. Sec. 402.14(a). The purpose of the consultation procedure is to allow the FWS to determine whether the federal action is likely to jeopardize the survival of a protected species or result in the destruction or adverse modification of its critical habitat and, if so, to identify reasonable and prudent alternatives which will avoid the action's unfavorable impacts. See 16 U.S.C. Sec. 1536(b)(3)(A).

Additional section 7 substantive duties require an agency actively to utilize its authority to conserve a listed species, 16 U.S.C. Sec. 1536(a)(1), and to avoid taking ² a protected species except where the taking is incidental ³ to the action and the harm is minimal and unavoidable, 16 U.S.C. Sec. 1536(b)(4). Finally, the taking of a protected species by any person (including a federal agency) violates section 9 of the ESA, 16 U.S.C. Sec. 1538(a), unless that person is authorized to do so after section 7 consultation, 16 U.S.C. Sec. 1536(b)(4), or by a section 10(a) incidental take permit, 16 U.S.C. Sec. 1539(a).

2. The National Environmental Policy Act

Congress, through NEPA, imposed procedural requirements on federal agencies designed to force an agency to consider the environmental consequences of its proposed activity. Thus, NEPA requires a federal agency to produce an environmental impact statement ("EIS") when proposing to engage in an action that will significantly affect the human environment. 42 U.S.C. Sec. 4332(2)(C). Usually, unless a proposed action falls within a categorical exclusion, or the proposal is one which normally requires an EIS, the agency will prepare an environmental assessment ("EA") to determine whether an EIS is necessary. 40 C.F.R. Sec. 1501.4. If an EA indicates a proposed action will significantly affect the human environment, an EIS is required. 42 U.S.C. Sec. 4332(2)(C). Otherwise, the agency may issue a finding of no significant impact ("FONSI") and then execute the action.

B. Facts and Prior Proceedings

This suit involves BLM land that is part of a checkerboard pattern of alternating public and private forestland ownership. To facilitate federal access to the public lands, in 1895 Congress authorized the Secretary to enter into reciprocal right-of-way agreements with private property owners. ⁴ See 43 C.F.R. Secs. 2812.0-3, -6 (explaining current authorization and policy). Pursuant to this longstanding statutory authority, and before the enactment of the ESA and NEPA, the BLM entered into a reciprocal right-of-way agreement in 1962 with Woolley Logging Company ("Woolley"). The agreement granted Woolley the use of certain existing logging roads on BLM lands, and permitted the company to construct new roads over specified BLM lands to access its private property.

Before beginning new road construction, the agreement required Woolley to submit a map of the project to the BLM for its approval. If within 30 days of the map's submission the BLM did not notify Woolley that the proposed route 1) was not the most direct, 2) would substantially interfere with existing or planned facilities, or 3) would result in excessive soil erosion the agreement deemed the project to have been "approved," and Woolley was free to construct the proposed road. Specifically, the agreement provided

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that after submitting a map of the proposed project,

Construction may be commenced after the expiration of a thirty (30) day period following the filing of such map unless in the intervening period the landowner shall object to such construction. The landowner may object to the proposed construction only if (1) it does not constitute the most reasonably direct route for the removal of forest products from the lands of the road builder, taking into account the topography of the area, the cost of road construction and the safety of use of such road, (2) the proposed road will substantially interfere with existing or planned facilities or improvements on the lands of the landowner, or (3) would result in excessive erosion to lands of the landowner.

(Emphasis added.)

In November, 1989, Woolley assigned its rights and duties under the right-of-way agreement to Seneca. The BLM approved the assignment on April 30, 1991, after Seneca agreed to conduct its operations under the permit so as to comply with all water quality standards, all pesticide use standards, and "[a]ll other applicable State and Federal environmental laws, regulations and standards." If Seneca's operations failed to conform with this "environmental stipulation," the agreement allowed the BLM to "discontinue all construction or other operations under [the] permit upon written notice from the Authorized Officer that such operations or any part thereof are in violation of this provision."

Pursuant to the right-of-way agreement, on September 20, 1990 Seneca submitted a plat to the BLM displaying its proposal to construct an 810 foot long logging road across BLM land, and requested BLM "approval." ⁵ Prior to giving its approval, the BLM prepared an EA for Seneca's proposed construction. As part of that process, a BLM biologist reviewed Seneca's proposal and determined the action "may affect" the threatened spotted owl and/or critical habitat. Although the biologist's report is not clear, it appears the problem did not stem from the proposed right-of-way construction, which was characterized as having a low impact, but rather it was the anticipated logging of the accessed private forestland that created a "may affect" situation. The biologist recommended that the BLM initiate consultation with the FWS as required by section 7(a)(2) of the ESA when a federal action may affect a listed species.

After the biologist announced his recommendation, the Regional Solicitor of the Department of Interior issued an opinion on the relationship between preexisting reciprocal right-of-way agreements and the ESA. It was the Regional Solicitor's opinion that the BLM did not possess the discretion under the agreements to influence for the benefit of the threatened spotted owl the design of the right-of-way construction. The Regional Solicitor also opined that the addition of an environmental stipulation did not "create additional discretion concerning the permittee's basic right to construct a road over BLM land." Accordingly, the Regional Solicitor concluded that section 7(a)(2) consultation would "serve little purpose ... when the only areas of control...