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Seattle Audubon Soc'y v. Moseley

ELR Citation: 22 ELR 21471
Nos. No. C92-479WD, 798 F. Supp. 1484/(W.D. Wash., 07/02/1992) injunction issued

The court, in a sequel case to Seattle Audubon Society v. Evans, 22 ELR 20372, enjoins the U.S. Forest Service from making additional timber sales in U.S. Forest Service Regions Five and Six that would log suitable habitat for the northern spotted owl until revised standards and guidelines complying with the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) are adopted by the agency and in effect. The Evans decision required the U.S. Forest Service to adopt by March 5, 1992, revised standards and guidelines to ensure the viability of the owl. Environmental plaintiffs now challenge the legality of the final environmental impact statement (FEIS) issued by the U.S. Forest Service, and a record of decision (ROD) adopted by the Assistant Secretary of Agriculture, in response to the Evans order. The court, in the liability phase of the case, first found that the U.S. Forest Service failed to comply with NEPA in producing the FEIS. Pending briefing on the relief phase, the court issued a preliminary injunction enjoining the agency from awarding further timber sales until relief was entered.

The court first holds that the environmental groups have standing to challenge the FEIS and ROD and that the challenge is ripe for review. The averments by plaintiffs' members show that the threatened injury to them from further logging of old growth habitat for the spotted owl is concrete, specific, imminent, caused by the agency conduct in question, and redressable by a favorable ruling. Moreover, the challenge is ripe because harm will be done if the U.S. Forest Service adopts an unlawful regulation under which forest management plans are to be adopted and logging rights sold. To postpone judicial review until specific timber sales were designed and about to be auctioned would defeat the interests not only of the plaintiffs, but of the agency and the loggers as well.

The court next turns to its liability-phase finding that the U.S. Forest Service violated NEPA by failing to explain or justify its rating of the alternative chosen in the FEIS as having a low-to medium-low probability of providing for viable populations of late-successional forest associated wildlife species other than the northern spotted owl. Noting that the NFMA and its implementing regulations require that fish and wildlife habitat must be managed to maintain viable populations of existing native and desired non-native vertebrate species in planning areas, the court observes that adopting a plan that would preserve a management indicator species, such as the spotted owl, in a way that exterminated other vertebrate species would defeat the purpose of monitoring to assure general wildlife viability. The court next finds that Congress' mandate for multiple uses, including both logging and wildlife preservation, can be fulfilled if the remaining old growth habitat is left standing; it cannot be fulfilled if the old growth in any national forest is logged to the point where native vertebrate species cease to exist there. Further, contrary to the U.S. Forest Service's claim, the court's conclusion does not require the agency to conduct a viability analysis as to every species. Rather, as in any administrative field, common sense and agency expertise must be used. However, if the agency's guidelines are illegal, the attendant forest plans cannot fill the gap. The court holds that although full NEPA compliance may or may not lead to a plan different from the alternative chosen by the U.S. Forest Service in its FEIS, the plan adopted cannot be one which the agency knows or believes will probably cause the extirpation of other native vertebrate species from the planning areas.

Turning to the plaintiffs' entitlement to relief, the court holds that the public interest and balance of equities require injunctive relief barring further timber sales by the U.S. Forest Service in the affected regions pending adoption of an EIS that will cure the shortcomings identified previously. First, the findings of fact in Evans are conclusively established for purposes of this case under the rule of issue preclusion. The same issues, having been fully tried and decided, cannot be litigated again. Although the U.S. Forest Service now seeks to do the same thing it sought before—to sell further logging rights in spotted owl habitat areas, while the agency is in the process of arriving at a conservation plan—the Evans court ordered a plan. While the record shows that a continued injunction will keep near-term logging below the level it would reach if the U.S. Forest Service proposal were adopted, and that some mills and loggers face shortages, it also shows that the causes of industry changes and supply problems are primarily found elsewhere, and that the owl is probably in graver danger than before.

Finally, the court holds that an injunction is granted until an EIS that cures the shortcomings previously determined by the court in Evans is adopted. Although the parties differ as to whether the U.S. Forest Service should carry out a full-scale statistical viability study of the owl, the U.S. Forest Service must explain in its EIS why it was not necessary or feasible to make a further statistical viability study. Further, the court holds that the history of this case shows the need to impose a timetable to assure prompt agency compliance. Thus, the interests of all concerned, including the timber industry, require the earliest possible resolution, and a timetable will be adopted after the court receives the agency's proposed schedule for completion no later than July 14, 1992, and the other parties' comments are received no later than July 17, 1992.

[The sequel decision to this case is published at 22 ELR 20372.]

Counsel for Plaintiffs
Todd D. True, Victor Sher
Sierra Club Legal Defense Fund
705 Second Ave., No. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Steven J. Odell, Beverly Nash
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Chris Pickrell
U.S. Attorney's Office
3600 Seafirst Plaza, 800 Fifth Ave., Seattle WA 98104
(206) 553-7970