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Oregon Natural Resources Council v. Lyng

Citation: 19 ELR 21154
No. No. 88-4092, 882 F.2d 1417/(9th Cir., 07/21/1989) Aff'd in part, rev'd in part

The court holds that a Forest Service sale of dead timber in the Hells Canyon National Recreation Area did not violate the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act (FWPCA), or § 8(f) of the Hells Canyon National Recreation Area Act (HCNRA Act), but that § 10 of the HCNRA Act requires the Forest Service to issue regulations governing such sales. The trees at issue had been killed by bark beetles. The court first holds that the Forest Service's decision not to prepare a supplemental environmental impact statement (EIS) for the sale was not arbitrary and capricious. The environmental assessment prepared for the sale was an adequate basis for that decision. Moreover, the Forest Service had previously prepared an EIS for the area under NEPA and a comprehensive management plan (CMP) under the HCNRA Act. Both the EIS and the CMP considered the possibility of bark beetle damage and stated that this type of salvage harvesting and sale would be an acceptable response. The bark beetle attack and proposed sale therefore were not significant new circumstances requiring a supplemental EIS. The sale will comply with the restraints on logging established by the EIS and the CMP, and will count toward the total annual amount of timber that those documents allow to be taken from the area.

The court holds that the evidence did not establish that the timber sale would cause turbidity violating Oregon water quality standards and the FWPCA. The court then holds that the sale does not violate § 8(f) of the HCNRA Act, which limits logging only during preparation of the CMP. The court holds that § 10 of the HCNRA Act requires the Secretary of the Interior to promulgate regulations governing logging in the HCNRA if those regulations would not duplicate others already in effect. Finally, the court holds that plaintiff is entitled to attorneys fees under the Equal Access to Justice Act. Plaintiff is a prevailing party on the regualtions issue, no special circumstances would render the award unjust, and the government's argument that it had no duty to promulgate regulations was not substantially justified.

[The district court's decision appears at 18 ELR 21503. Briefs from the Ninth Circuit are digested at ELR PEND. LIT. 66042.]

Counsel for Plaintiffs-Appellants
Gary K. Kahn
Reeves & Kahn
610 SW Alder, Ste. 910, Portland OR 97205
(503) 227-5144

Kerry L. Rydberg
296 E. Fifth Ave., Ste. 309, Eugene OR 97401
(503) 345-6757

Counsel for Defendants-Appellees
John A. Bryson
2300 N St. NW, Washington DC 20037
(202) 663-8392

Trott (before Wright and Reinhardt, JJ.):