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National Audubon Soc'y v. U.S. Forest Serv.

ELR Citation: 23 ELR 21520
Nos. Nos. 91-35214 et al., 4 F.3d 832/(9th Cir., 09/15/1993) Rev'd & remanded

The court reverses a district court's decision denying a U.S. Forest Service motion for summary judgment that it did not violate the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact statement (EIS) for four timber sales in or bordering on roadless areas in Oregon, and remands for review of the agency's action under the arbitrary and capricious standard. The district court denied summary judgment holding that the Forest Service's failure to prepare an EIS was unreasonable. The court first holds that neither the language nor prior judicial interpretation of the Oregon Wilderness Act (OWA) indicates congressional intent to prohibit judicial review of the Forest Service's compliance with NEPA, because the OWA prohibition applies to wilderness versus nonwilderness designations, not to roadless versus roaded determinations. Following on the U.S. Supreme Court's decision in Seattle Audubon Society v. Robertson, 22 ELR 20663, the court holds that under §318 of the Department of the Interior and Related Agencies Appropriations Act of 1990 (DIRA), the proper standard of review of timber sales in roadless areas is whether the actions of the Forest Service are arbitrary and capricious. The court holds that a district court may consider evidence outside of the administrative record in the form of an expert's affidavit, because it was alleged that the Forest Service completely ignored the roadless nature of the proposed timber sales in preparing its environmental assessments, and the sales constituted an irreversible decision that could have serious environmental consequences. The court holds that due to the limited scope and applicability, and accelerated judicial review procedures of DIRA §318, a district court must be able to examine outside evidence to insure that there will be full presentation of the issues.

Counsel for Plaintiffs
Gary K. Kahn
Reeves & Kahn
610 SW Alder St., Rm. 910, Portland OR 97205
(503) 227-5144

Counsel for Defendant
David C. Shilton, John T. Stahr
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants-Intervenors
Scott W. Horngren
Haglund & Kirtley
One Main Pl., 101 SW Main St., Ste. 1800, Portland OR 97204
(503 225-0777

Before Beezer and Noonan, JJ.