Reservation Ranch v. United States
Citation: 30 ELR 20094
No. No. 98-5159, 217 F.3d 850/(Fed. Cir., 09/09/1999)
The court holds that the U.S. Forest Service did not breach a timber sale contract when, pursuant to two contract provisions, it canceled the contract to avoid jeopardizing the continued existence of the endangered northern spotted owl in the Six Rivers National Forest. The court first holds that the challenged contractual provisions are a reasonable and valid implementation of the Forest Service's statutory charge under the National Forest Management Act (NFMA) mandate to manage the timber program in a manner that maintains wildlife diversity. The NFMA authorizes the Forest Service to sell timber from the national forests and directs that contract terms shall promote orderly harvesting consistent with the different resource values of the forests. The cancellation regulation in the Code of Federal Regulations contains permissive language reflecting the flexibility of parties to contract to different terms. It specifies that parties may provide for cancellation for reasons not specifically enumerated in the regulation. Therefore, the court finds that the cancellation provisions embodied in the contract are not inconsistent with the cancellation regulation.
The court next holds that the chief of the Forest Service had the authority to make jeopardy findings and to cancel the contract. The contract between the government and the logging company contained language that envisioned the cancellation of the contract upon the chief's determination that continuation of the contract would jeopardize the continued existence of the northern spotted owl or a sensitive species identified by the regional forester. The court finds that the reference in the contract to the regional forester does not place the authority to make the jeopardy finding solely in the regional forester. Further, the logging company's other arguments, that the Endangered Species Act vests the power to issue jeopardy determinations in the U.S. Fish and Wildlife Service (FWS), that the Forest Service may not act contrary to an FWS no jeopardy determination by finding jeopardy, and that the Forest Service articulated no reason for making its own jeopardy determination, are not persuasive.
Counsel for Plaintiff
Schwabe, Williamson & Wyatt
1211 SW 5th Ave., Ste. 1600-1800, Portland OR 97204
Counsel for Defendant
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
Before Michel and Plager, JJ.