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Seattle Audubon Soc'y v. Espy

Citation: 23 ELR 21148
No. No. 92-36529, 998 F.2d 699/38 ERC 1902/(9th Cir., 07/08/1993) Aff'd

The court affirms a district court decision permanently enjoining the U.S. Forest Service from conducting additional timber sales in Forest Service Regions Five and Six until it adopts and implements revised standards and guidelines for the management of spotted owl habitat that comply with the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). As a result of the court's decision in Seattle Audubon Society v. Evans, 22 ELR 20372, the Forest Service published a final environmental impact statement (EIS) for its spotted owl management plan and issued a record of decision (ROD) in which it adopted as its owl management plan regional guide amendments incorporating the recommendations of the Interagency Scientific Committee (ISC). The plan delineates habitat conservation areas (HCAs) where logging would be prohibited, and regulates the rate of cutting on forest lands between HCAs so that half the land would provide for the safe dispersal of owls at all times. An environmental group challenged the ROD and the EIS as violating NEPA and the NFMA.

The court first holds that the environmental group has standing to sue, because the threatened harm to owl viability resulting from further logging in old growth forests, in the absence of an owl management plan that complies with NEPA and the NFMA, is concrete, specific, imminent, caused by the agency conduct in question, and redressable by a favorable ruling. The group's challenge to the Forest Service's action is supported by declarations from members describing their proximity to owl-inhabited forests, the frequency with which they visit these forests, and their aesthetic and scientific interest in the owl. The declarants have been using and will continue to use forest lands suitable for owl habitat on a regular basis. Absent an injunction, the Forest Service intends to develop and offer for auction timber sales throughout and around the old growth forest ecosystem. Also, the asserted harm that the group's members complain of will occur if logging takes place. The court rejects the Forest Service's contention that a challenge to its owl management plan will not be ripe until the Forest Service authorizes a specific timber sale pursuant to the plan. In previous cases, the court held that individual timber sales are driven by an underlying owl management plan, and that plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan.

Turning to the group's NEPA claims, the court holds that the Forest Service's EIS did not address in any meaningful way the various uncertainties surrounding the scientific evidence on which the ISC relied. The district court held that the Forest Service, in adopting the ISC's strategy, did not adequately consider a report prepared by the U.S. Fish and Wildlife Service that concluded that the spotted owl population is declining more substantially and more quickly than previously thought, and that the rate of population decline raises serious questions about the adequacy of the ISC's conservation strategy. The appellate court holds that allowing the Forest Service to ignore reputable scientific criticisms that have surfaced with regard to the ISC's strategy would not further NEPA's aims for environmental protection. Even if the Forest Service concludes that it need not undertake further scientific study regarding owl viability and the impact of further habitat loss, the Forest Service must explain in the EIS why such an undertaking is not necessary or feasible.

The court holds that the district court correctly held that the Forest Service's adoption of the ISC's strategy inadequately dealt with its effect on other old growth dependent species. In order to allow for the sort of reasoned decisionmaking contemplated by NEPA, an owl management plan destined to be a driving force behind various land use decisions on lands suitable for spotted owl habitat should include a discussion of the effects the various alternatives and the ultimate choice would have on other old growth dependent species in the same locations. The court holds that the district court also correctly held that the Forest Service improperly based its owl viability assessment on its assumption that all agencies involved were going to follow the ISC's strategy or some similar plan and that the Endangered Species Act would apply. The court holds that because the Forest Service's EIS rests on stale scientific evidence, incomplete discussion of environmental effects vis-a-vis other old growth dependent species, and false assumptions regarding the cooperation of other agencies and application of relevant law, the district court did not err in concluding that the Forest Service must reexamine its chosen alternative.

The court further holds that the district court did not abuse its discretion in granting injunctive relief. Because the district court indicated its willingness to entertain requests for extensions of time to comply with its order, the court declines to address the issue of whether the deadlines for compliance are unduly harsh. Finally, the court dismisses for lack of jurisdiction the environmental group's cross-appeal challenging the district court's judgment that the Forest Service was not obligated to promulgate independent regulations ensuring that critical owl habitat will not be destroyed or adversely modified. The judgment neither denied nor granted injunctive relief. Therefore, the order is not appealable under 28 U.S.C. § 1292(a). The district court granted an injunction under NEPA and left open the possibility of granting injunctive relief under the NFMA in the future. Thus, the order is not a final disposition of the group's NFMA claim.

[The district court's decision is published at 22 ELR 21471.]

Counsel for Plaintiffs-Appellees
Todd D. True, Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants-Appellants
Anne S. Almy
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Goodwin and Pregerson, JJ.