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

ELR Citation: 25 ELR 20910
Nos. Nos. 91-35214 et al., 46 F.3d 1437/(9th Cir., 09/15/1993, 08/30/1994) Rev'd & remanded

The court holds that a district court should have used the "arbitrary and capricious" standard specified in §318 of the Department of the Interior and Related Agencies Appropriations Act of 1989 to review the U.S. Forest Service's decision under the National Environmental Policy Act (NEPA) not to prepare an environmental impact statement (EIS) for four timber sales in areas designated for nonwilderness management in the Rogue River National Forest in Oregon. The timber sales, on which the Forest Service prepared environmental assessments (EAs), are located in areas evaluated as "roadless areas" as part of the agency's second Roadless Area Review and Evaluation (RARE II) begun in 1977 and completed when it issued its EIS on RARE II in 1979. Congress subsequently enacted the Oregon Wilderness Act (OWA), designating some RARE II roadless areas as wilderness and releasing the remaining RARE II roadless lands to nonwilderness management. Each of the timber sales are located in areas under nonwilderness management.

The court first holds that neither the OWA's language nor the court's earlier judicial interpretation of that statute supports the conclusion that Congress intended to prohibit judicial review under NEPA of the challenged sales until the Forest Service revises the Rogue River National Forest's second generation plan. OWA §7(b)'s prohibition on judicial review only applies to the OWA's wilderness or nonwilderness designations. Further, the OWA provides that review of the roadless opinion is not required before revising the plans. The court holds that the district court should have applied §318 of the Department of the Interior and Related Agencies Appropriations Act of 1989, including the "arbitrary and capricious" standard specified in §318(g)(1), to review the Forest Service's decision not to prepare an EIS on the four timber sales. The district court erred when it applied the reasonableness standard the Ninth Circuit normally uses in reviewing NEPA compliance, because §318(g)(1) expressly provides for judicial determination of the lawfulness of these timber sales and allows the district court to enjoin a sale if it determines that the decision to make the sale was arbitrary, capricious, or otherwise not in accordance with law. The court reaches this conclusion based on the U.S. Supreme Court's holding in Seattle Audubon Society v. Robertson, 22 ELR 20663 (1992), which reversed the court's holding that §318 was unconstitutional. The court rejects the environmental groups' argument that remand to the district court is unnecessary because there is little difference between the reasonableness standard and the arbitrary and capricious standard set forth in §318(g)(1). The standards are not functionally equivalent because the reasonableness standard involves less deference to the agency than the arbitrary and capricious standard. A finding that the agency's decision meets the more rigorous reasonableness standard necessitates the conclusion that the agency's decision was not arbitrary and capricious. But a finding that the agency's decision was not reasonable does not necessitate the conclusion that the decision was arbitrary and capricious. Remand is also necessary because Robertson requires the district court to examine the Forest Service's actions under the applicable laws under the arbitrary and capricious standard, including NEPA as amended by §318.

The court holds that the district court properly reviewed the nonrecord affidavit of the environmental groups' expert witness under the exceptions set forth in County of Suffolk v. Secretary of the Interior, 7 ELR 20637 (2d Cir. 1977), and Public Power Council v. Johnson, 674 F.2d 791, 794-95 (9th Cir. 1982), to the general rule that the court must limits its review to the administrative record. The county of Suffolk exception states that certain circumstances may justify expanding review beyond the record. The environmental groups' allegation that the Forest Service completely ignored the roadless nature of the timber sales when it prepared the EAs is such a circumstance, because the decision to harvest timber on an undeveloped tract of land is an irreversible and irretrievable decision that could have serious environmental consequences. The Johnson exception provides that a court may appropriately review matters beyond the administrative record when Congress prescribes special review procedures. Because §318 has limited scope and applicability and has accelerated judicial review procedures, the district court's review of the affidavit was necessary to ensure full presentation of the issues.

Counsel for Plaintiff
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
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: BEEZER, NOONAN, and TROTT, Circuit Judges.