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Portland Audubon Soc'y v. Babbitt

ELR Citation: 23 ELR 21142
Nos. Nos. 92-36616 et al., 998 F.2d 705/37 ERC 1907/(9th Cir., 07/08/1993) Aff'd

The court affirms a district court decision enjoining logging operations on the Bureau of Land Management (BLM) land containing owl habitat pending preparation of a supplemental environmental impact statement (EIS). The court first holds that plaintiff environmental groups have standing to sue, because they have demonstrated injury-in-fact and declarations by individual members of the groups indicate that the members have used and will continue to frequent old growth forests on BLM land. Also, the continued logging of old growth forests on BLM land in the absence of compliance with the National Environmental Policy Act (NEPA) will harm spotted owls and the plaintiffs, who will no longer be able to observe and study them. The injury-in-fact is clearly redressable by the district court's enjoining the Secretary of the Interior to comply with the requirements of NEPA. In addition, the action challenged is a final agency decision not to supplement the EISs with new information relating to the effects of logging on the northern spotted owl. The court holds that the decision is ripe for review, because to the extent BLM's timber management plans (TMPs) for the areas predetermine the future, the Secretary's failure to comply with NEPA represents a concrete injury that would undermine any future challenges by the plaintiffs.

The court holds that BLM's 1987 decision not to supplement the EISs for the TMPs was arbitrary and capricious. The body of scientific evidence available by 1987 concerning the effect of continued logging on the ability of the owl to survive as a species raised serious doubts about BLM's ability to preserve viability options for the owl if logging continued at the rates and in the areas authorized by the TMPs. The court notes that §314 of the fiscal year 1989 Interior Appropriations Act, which placed limitations on judicial review of BLM timber plans but required BLM to proceed with the plans, has expired and NEPA applies. The court holds that the old plans never complied with NEPA and notes that the new plans have not yet been prepared. The court holds that the TMPs do not adequately address the impact of the individual planned timber sales on the survival of the northern spotted owl subspecies, and recent developments in the scientific community since 1987 have only confirmed the need for a supplemental EIS.

The court next holds that the district court's injunction is not based on erroneous legal principles or an abuse of discretion. The Oregon and California Lands Act, which authorizes BLM to sell a minimum of 500 minimum board-feet of timber per year, does not deprive BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care. Further, there does not appear to be a clear and unavoidable conflict between statutory directives. NEPA, passed after the Oregon and California Lands Act, applies to all government actions having significant environmental impact, even though the actions may be authorized by other legislation. Finally, the court holds that it would not be futile for BLM to prepare a supplemental EIS for the TMPs, even if BLM's new resources management plans and accompanying environmental impact statements will address all relevant information. The plans have not been completed even though they were originally due in 1990.

[The district court's decision is published at 22 ELR 20889. Other decisions in this litigation are published at 18 ELR 21210; 19 ELR 20366, 20367, 21230, and 21378; and 21 ELR 20018, 20019, and 21341.]

Counsel for Plaintiffs-Appellees
Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendant-Appellant
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Goodwin and Pregerson, JJ.