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Oregon Natural Resources Council v. U.S. Forest Serv.

ELR Citation: 18 ELR 20450
Nos. No. 87-3737, 834 F.2d 842/27 ERC 1068/(9th Cir., 12/21/1987) Aff'd in part, rev'd in part, & vacated in part

The court holds that the Forest Service must provide administrative appeals for National Environmental Policy Act (NEPA) claims regarding its sale of timber in the Willamette National Forest, Oregon, and while the Federal Water Pollution Control Act (FWPCA) citizen suit provision does not provide a cause of action to challenge the sale's effects on state water quality standards, the Administrative Procedure Act (APA) does. The Forest Service had sold a portion of the forest's timber in 1981 following publication of an environmental assessment (EA) and finding of no significant impact under NEPA, but the purchaser did not harvest any timber and returned the sale to the Forest Service. The court first holds that the Forest Service's reoffer to sell the timber in 1985 is a decision within the meaning of 36 C.F.R. §211.18(a)(1), which provides for administrative appeals of local Forest Service decisions. The Federal Timber Contract Payment Modification Act of 1984 governed the Forest Service's reoffer to sell the timber, and its legislative history reveals that discretion is required to resell timber. Congress later enacted §320 of the Department of the Interior and Related Agencies Appropriations Act, which limits appeal rights in these situations to one level of administrative appeal; this is evidence that Congress was aware that there were existing administrative appeal rights. The court next holds that since plaintiffs did not challenge the EA prepared for the original sale, the Forest Service may rule during its consideration of the administrative appeal that plaintiffs are time barred from challenging the EA now unless plaintiffs allege changed circumstances or environmentally significant modifications to the sale plans.

The court next holds that the district court permissibly segregated its consideration of the plaintiffs' claim that the Forest Service's action improperly affected the habitat of an endangered species, the spotted owl, since the plaintiffs did not add this claim to their complaint until the hearing was close at hand. The court holds that the FWPCA's citizen suit provision, §505, does not permit citizen suit enforcement of state water quality standards as affected by nonpoint sources such as the sale of timber at issue here. Nonpoint sources are addressed in a separate portion of the FWPCA, and are not subject to the effluent limitations of §301 contemplated in the citizen suit provision. However, the court holds that APA §702 does authorize judicial review of the Forest Service's compliance with state water quality standards. The FWPCA citizen suit provision is not the only way by which an individual may enforce the FWPCA; judicial review under the APA is ordinarily inferred unless there is a persuasive reason to believe that cutting off judicial review was the purpose of Congress. The court remands the case to the district court to determine whether the harvest associated with the timber sale would violate the state water quality standards.

[The district court opinion appears at 17 ELR 20966.]

Counsel for Plaintiffs-Appellants
Ralph Bradley
Bradley & Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

Counsel for Defendants-Appellees
Blake A. Watson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2772

Before Goodwin and Stephens Jr.,[*] JJ.