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Portland Audubon Soc'y v. Lujan

Citation: 19 ELR 21230
No. No. 87-1160-FR, 712 F. Supp. 1456/(D. Or., 05/18/1989) Defendant's motion for summary judgment granted on remand

The court holds that the Bureau of Land Management's (BLM's) decision not to supplement its environmental impact statements (EISs) on timber management in Oregon as a result of new information available on the northern spotted owl is not reviewable. Timber management plans and EISs for Oregon's BLM districts were adopted between 1979 and 1983. In 1987, BLM concluded in an environmental assessment that new information on the spotted owl did not require supplementation of the original EISs. This court previously held that a congressional continuing budget resolution precluded review of plaintiffs' claims; the Ninth Circuit reversed, holding that the resolution does not preclude review of particular timber sales. On remand, the district court first holds that the BLM's decision not to prepare a supplemental EIS is a final decision within the meaning of the Administrative Procedure Act (APA) and that judicial review of that decision is not barred by laches, failure to exhaust administrative remedies, or principles of primary administrative jurisdiction. The court holds, however, that the APA does not provide a basis for plaintiffs' claims under the Oregon and California Lands Act, the Federal Land Policy and Management Act, or the Migratory Birds Treaty Act. The court holds that the decision not to prepare a supplemental EIS was arbitrary and capricious in light of the new, significant, and probably accurate information that the planned logging of spotted owl habitat raises uncertainty about the ability of the species to survive. The court then holds that the congressional continuing budget resolution bars plaintiffs' claim. Plaintiffs do not challenge particular timber sales, but rather challenge the timber management plans themselves. The challenge is based solely on the fact that the management plans do not incorporate the new information on the spotted owl; plaintiffs present no new information that is site-specific to any proposed timber sale activity.

[Earlier decisions from this litigation are published at 18 ELR 21210, and 19 ELR 20366 and 20367. Decisions in related litigation are published at 19 ELR 21159 and 21177.]

Counsel for Plaintiffs
Victor M. Sher, Todd D. True
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, 620 SW Main St., Portland OR 97205
(503) 221-2101