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Portland Audubon Soc'y v. Lujan

Citation: 19 ELR 21378
No. No. 89-35337, 884 F.2d 1233/(9th Cir., 09/06/1989) Aff'd in part, rev'd in part

The court holds that the Bureau of Land Management's (BLM's) decision not to supplement its environmental impact statement (EIS) on timber management plans in Oregon, in light of new information on the northern spotted owl, is not reviewable under § 314 of the 1987 Interior continuing budget resolution. Section 314 bars challenges to a BLM plan "solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan," but allows challenges to "particular activities to be carried out under existing plans." The court holds that plaintiffs' National Environmental Policy Act (NEPA) claim is a challenge to the BLM plans, not to particular activities under the plans. Congress' intent that there be a smooth transition from one planning period to the next was not specific enough to serve as a jurisdictional bar. The court observes that a supplemental EIS cannot be entirely divorced from some underlying substantive federal action. The court holds that because the decision to designate old-growth forest for "intensive timber management" was made with knowledge that owl habitat would be sacrificed, plaintiffs' claim is a challenge to the land-use decision, and not a challenge to particular activities based on new information. However, the court holds that plaintiffs' challenges under the Oregon and California Lands Act, the Federal Lands Policy and Management Act, and the Migratory Bird Treaty Act are not barred by laches. The government has not shown that it will be prejudiced by allowing the non-NEPA claims, and appellants did not lack diligence in pursuing these claims.

[Earlier decisions in this litigation are published at 18 ELR 21210, and 19 ELR 20366, 20367, and 21230.]

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

Counsel for Defendant-Appellee
Martin W. Matzen
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-4426