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Robertson v. Seattle Audubon Soc'y

ELR Citation: 22 ELR 20663
Nos. No. 90-1596, 503 U.S. 429/34 ERC 1313/(U.S., 03/25/1992) Rev'd & remanded

The U.S. Supreme Court holds that §318(b)(6)(A) of the Department of the Interior and Related Agencies Appropriations Act of 1990 does not violate the U.S. Constitution's separation of powers doctrine because the Act compelled changes in the legal standards underlying two pending challenges to Bureau of Land Management (BLM) timber sales in northern spotted owl habitat without directing particular findings or results. Respondent environmental groups filed two lawsuits alleging that proposed timber harvesting in 13 national forests in Oregon and Washington, which encompass the owl's critical habitat and are managed by the United States Forest Service and BLM, violated the Migratory Bird Treaty Act (MBTA), the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Federal Land Policy and Management Act (FLPMA), and the Oregon-California Railroad Land Grant Act (OCLA).

After lower courts preliminarily enjoined some of the timber sales, §318 was enacted, commonly referred to as the Northwest Timber Compromise. Subsections (b)(3) and (b)(5) of the Compromise prohibited harvesting in various designated owl habitat areas, and subsection (b)(6)(A) provided that "Congress hereby determines and directs that management [of the forests] according to subsections (b)(3) and (b)(5) . . . is adequate consideration for the purpose of meeting the statutory requirements that are the basis for" the two lawsuits brought by respondents. Subsequently, the federal defendants in the lawsuits sought dismissal based on the new law's temporary superseding of all statutes that the plaintiffs' suits were based on. Plaintiffs resisted arguing that the Compromise violated the separation of powers doctrine by legislating the results in their pending lawsuits. After the district courts upheld the Compromise as constitutional, the Ninth Circuit reversed, holding that §318(b)(6)(A) directed the court to reach a specific result and make factual findings under existing law. While on remand to the district courts, the U.S. Supreme Court granted review of the Ninth Circuit's ruling that subsection (b)(6)(A) was unconstitutional.

The Court first holds that subsection (b)(6)(A) compelled changes in law, not findings or results under old law. For example, before the Compromise was enacted, the courts adjudicating violations of MBTA §2, which makes it unlawful to "kill" or "take" any "migratory bird," were obliged to determine whether the challenged timber harvests would kill or take any northern spotted owls within the meaning of §2. Subsection (b)(6)(A), however, required an assessment of whether the harvesting would violate subsections (b)(3) and (b)(5). If no violation of these sections was found, the harvesting would be deemed to meet the requirements of MBTA §2 regardless of whether an otherwise prohibited killing or taking occurred. Thus, agencies could satisfy their MBTA obligations by either managing their lands so as not to kill or take any northern spotted owl within the meaning of §2, or by managing their lands so as not to violate the prohibitions of subsections (b)(3) and (b)(5) of the Compromise. Moreover, the court holds that subsection (b)(6)(A) operated identically on all provisions of NEPA, the NMFA, FLPMA, and the OCLA.

The Court next holds that subsection (b)(6)(A) did not purport to direct any particular findings of fact or applications of law, old or new, to fact. The Compromise did not instruct courts whether any particular timber sales would violate subsections (b)(3) and (b)(5). As to timber sales, before or after fiscal year 1990, which was the effective date of the Compromise, subsection (b)(6)(A) expressly reserved judgment on the legal and factual adequacy of the administrative documents authorizing the sales. Further, for timber sales occurring during fiscal year 1990, subsection (g)(1) expressly provided for the judicial determination of the lawfulness of the sales. That Congress failed to preface the Compromise with the phrase "Congress . . . directs that" does not undermine the conclusion that Congress directed—to agencies and courts alike—a change in law, not specific results under old law.

The Court also holds that subsection (b)(6)(A)'s explicit reference to the two pending cases served only to identify the five statutes underlying the cases, and any affect on the outcome of the cases was by effectively modifying the statutes identified. The Court notes that although statutory repeals by implication are disfavored in the context of appropriations bills, subsection (b)(6)(A) expressly modified the old law. Finally, the Court notes that although one of respondents' amici argued that subsection (b)(6)(A) is unconstitutional even if it amended law, because the change did not alter the range of applications at issue in the pending cases, the argument was not raised below, considered by the court of appeals, or advanced by respondents to the Court.

[The decisions involved in this ongoing litigation are Portland Audubon Society v. Lujan, published at 18 ELR 21210, 19 ELR 20366, 20367, 21230, 21378, and 21 ELR 20018; and Seattle Audubon Society v. Robertson, published at 20 ELR 21167, and 21 ELR 20019 and 21040. Litigation briefs in the appeal to the U.S. Supreme Court are digested at ELR PEND. LIT. 66155 and 66170.]

Counsel for Petitioners
Barry M. Hartman, Peter R. Steenland Jr., Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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

John Bonine, Michael Axline
University of Oregon School of Law
1101 Kincaid St., Rm. 329, Eugene OR 97403
(503) 346-3823