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Oregon Natural Resources Council v. Thomas

ELR Citation: 26 ELR 21638
Nos. 95-36256, 92 F.3d 792/(9th Cir., 07/31/1996)

The court holds that a U.S. Forest Service decision to conduct timber sales on lands in the Upper North Umpqua River Basin in southwestern Oregon that are subject to President Clinton's Northwest Forest Plan (Option 9) was not arbitrary and capricious under §2001(d) of the 1995 Rescissions Act. The court first holds that environmental groups' argument that the sales violate Option 9, which is binding under the National Forest Management Act (NFMA) and its implementing regulations, must fail. Rescissions Act §2001(1) provides that the documents and procedures of any timber sale under §2001(d) shall be deemed to satisfy the requirements of the NFMA and all other applicable federal environmental and natural resource laws. Thus, the effect of §2001(1) is to render sufficient under the environmental laws whatever document and procedures, if any, the agency elects to use for Option 9 sales. The court then holds that §2001(d)'s direction to expedite preparation, offer, and award of Option 9 sales "notwithstanding any other law" requires the disregard only of environmental laws, not all laws otherwise applicable to Option 9 sales. Thus, the court holds that §2001(f)(1)'s provision for judicial review of Option 9 sales is not superfluous. The court next holds that the Forest Services' decision to conduct the timber sales is not reviewable under the Administrative Procedure Act's (APA's) "arbitrary and capricious" standard because there is no "law to apply" under APA §701(a)(2). Moreover, arbitrary and capricious review is unavailable under APA §706(2)(A) unless there is law to apply under §701(a)(2). The court also holds that "abuse of discretion" review is unavailable under APA §706(2)(A).

Counsel for Plaintiffs
Robin Michaels, Anne S. Almy
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Mark C. Rutzick, Alison Kean Campbell
Mark C. Rutzick Law Firm
500 Pioneer Tower
888 SW 5th Ave., Portland OR 97204
(503) 499-4573

Before: REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges.