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Portland Audubon Soc'y v. Hodel

Citation: 19 ELR 20367
No. Nos. 88-3854 et al., 866 F.2d 302/(9th Cir., 01/24/1989) Decision at 18 ELR 21210 rev'd & remanded, decision at 19 ELR 20366 aff'd

The court holds that a congressional continuing resolution limiting judicial review of Bureau of Land Management timber management plans does not necessarily preclude a challenge to timber sales in old-growth timber stands in Oregon that provide habitat for the northern spotted owl. The resolution was passed to stop this lawsuit and to permit the sales to proceed without further delay. However, the court holds that Congress failed to express the intent of the resolution's sponsors in a manner that clearly withdraws the jurisdiction of the district court. While the resolution bars actions brought "on the sole basis of new information concerning the northern spotted owl," plaintiffs also have brought claims that do not appear to be based on new information. The court notes that plaintiffs' challenges to a number of particular sales can be characterized as challenges of "particular activities" that are subject to judicial review under the resolution. The court holds that the resolution does not expressly or impliedly repeal the Administrative Procedure Act's judicial review provisions, the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act, or other statutes as they may pertain to judicial review of timber sales under the challenged plans. On remand, the district court must decide whether plaintiffs' challenge is to the timber management plan as a whole or to particular sales.

The court holds that the district court properly refused to permit a coalition of timber industry groups to intervene as a defendant concerning plaintiffs' NEPA claim. Although the coalition has a significant economic stake in this litigation, it lacks a protectable interest justifying intervention as of right because NEPA provides no protection for their purely economic interests.

[District court decisions are published at 18 ELR 21210 and 19 ELR 20366.]

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

Michael D. Axline
Western Natural Resources Law Clinic
University of Oregon, Eugene OR 97403
(503) 686-3823

Counsel for Defendant-Appellee
Martin W. Matzen
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4426

Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, S.W. Main, Portland OR 97205
(503) 221-2101

Counsel for Defendants-Intervenors-Appellees-Cross-Appellants
Mark C. Rutzick
Preston, Thorgrimson, Ellis & Holman
3200 U.S. Bancorp Tower, 111 S.W. Fifth Ave., Portland OR 97204
(503) 228-3200

Before Schroeder and Pregerson, JJ