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Seattle Audubon Soc'y v. Evans

ELR Citation: 22 ELR 20372
Nos. Nos. 91-35528 et al., 952 F.2d 297/(9th Cir., 12/23/1991) Aff'd in part, rev'd in part

The court holds that the U.S. Forest Service is required by the National Forest Management Act (NFMA) to implement revised standards and guidelines to ensure the viability of the northern spotted owl, even though the U.S. Fish and Wildlife Service (FWS) listed the owl as threatened under the Endangered Species Act (ESA). Pursuant to NFMA requirements, the Forest Service issued a record of decision (ROD) in 1988 that amended the agency's regional guide for the Pacific Northwest to specify standards and guidelines to provide for the viability of the owl. An environmental organization challenged the ROD in 1989 claiming it would not maintain viable populations of the owl. In 1990, the FWS listed the owl as a threatened species throughout its range, and the Forest Service subsequently vacated the standards and guidelines in the regional guide, revoked the 1988 ROD, and declared that all subsequent Forest Service actions involving the owl would be governed by the ESA. After the environmental organization amended its complaint to challenge the Forest Service's announcement as unlawful, Congress passed the 1990 Interior Department appropriations bill, part of which limited judicial review of timber sale components in forest management plans in the Pacific Northwest. Subsequently, the court ruled that the section of the appropriations bill, part of which limited judicial review of timber sale components in forest management plans in the Pacific Northwest. Subsequently, the court ruled that the section of the appropriations bill that limited judicial review was unconstitutional under the separation-of-powers doctrine, and the district court enjoined the Forest Service from advertising the contested timber sales because the Agency had failed to develop plans required by the NFMA.

The court first holds that although the owl's listing under the ESA triggered now obligations under the NFMA, it did not reduce the planning obligations of the Forest Service under the Act. There is little support for the government's newly announced position that under the NFMA it need not plan for the survival of endangered species, and the record shows that the Forest Service has understood at all times that the NFMA continues to apply after a species is listed under the ESA. The Forest Service's own regulations, specifically 36 C.F.R. §219.19, expressly require the planning process under the NFMA to identify habitat "critical for threatened and endangered species" and to determine objectives for such species "that shall provide for, where possible, their removal from listing as threatened and endangered species through appropriate conservation measures." The Forest Service has used threatened or endangered species as indicator species pursuant to the same regulation. Moreover, §219.27 provides that the "minimum specific management requirements" shall include measures for preventing the destruction or adverse modifications of critical habitat for threatened and endangered species. The effect of the Forest Service's position in this litigation would be to reward the Agency for its own failures; the net result would be that the less successful the Agency is in maintaining viable populations of species required under its regulations, the less planning it must do for the diversity of wildlife sought by the NFMA. In addition, the ESA provides no support to the Forest Service's position, since a species may be listed by the FWS solely because of threatened destruction to its habitat, or because of the inadequacy of existing regulatory mechanisms to protect it. Thus, the court holds that the Forest Service's interpretation of its statutory mandate and regulation is not entitled to any deference.

The court next holds that the district court properly ordered an environmental impact statement in fashioning a remedy and determining appropriate time periods, and did not interpret the applicable section of the 1990 Interior appropriations bill to require such a study. The district court's findings are not clearly erroneous and the remedy fashioned was not an abuse of discretion. The court further holds that the Migratory Bird Treaty Act (MBTA) does not prohibit the Forest Service and the Bureau of Land Management (BLM) from selling and logging timber from lands within areas that may provide suitable habitat for the owl. Although habitat destruction causes harm to the owls under the ESA for which redress is available, it does not "take" them within the meaning of the MBTA. Although "harm" is defined by ESA regulation to include habitat modification or degradation, it is not included in the regulations under the MBTA. Finally, the court holds that the district court erred by not granting plaintiffs leave to amend their complaint to allege National Environmental Policy Act claims no longer barred by the 1990 Interior appropriations bill. Originally, the 1988 bill expressly barred challenges to BLM decisions to proceed with logging without first preparing supplemental environmental impact statements to account for new information concerning the potential extinction of the owl. In addition, the provision was reenacted in the 1989 and 1990 appropriations bill, but not in the 1991 bill. As a general rule, appropriations acts are in force during the fiscal year of the appropriation and do not work a permanent change in the substantive law. Had Congress intended to keep the restrictions of the pertinent section in place for more than one year at a time, it could have so provided or enacted the instructions as part of permanent, substantive legislation.

[The district court decisions are published at 21 ELR 21341 and 21505.]

Counsel for Plaintiffs-Appellants
Michael D. Axline
Western Environmental Law Clinic
University of Oregon School of Law, Eugene OR 97403
(503) 346-3852

Victor M. Sher
Sierra Club Legal Defense Fund
216 1st Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants-Appellees
Anne S. Almy, Thomas Lee, Louise F. Milkman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Mark C. Rutzick, Cynthia L. Hull
Preston, Thorgrimson, Shidler, Gates & Ellis
3200 U.S. Bancorp Tower, 111 S.W. 5th Ave., Portland OR 97204
(503) 228-3200