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Northwest Forest Resource Council v. Pilchuck Audubon Soc'y

ELR Citation: 27 ELR 20322
Nos. 96-35106 et al., 97 F.3d 1161/(9th Cir., 06/14/1996)

The court affirms a district court determination that §2001(k)(1) of the 1995 Rescissions Act is constitutional and does not violate separation of powers by permitting Congress to resurrect timber sales that federal courts have enjoined. The district court also correctly held that "offered" sales, which §2001(k)(1) requires the release of, includes sales that were enjoined, cancelled, or withdrawn before the passage of §2001(k)(1). The use of the word "offered" means any timber sale where the bids are opened at auction. This language does not exclude cancelled or enjoined sales, because the bids would have been opened before the cancellation or injunction occurred. This does not require, however, the release of timber sales that were never validly offered. Thus, the court holds that four timber sales that were enjoined for violations of their authorizing statute were never validly offered within the meaning of §2001(k)(1) and thus are void ab initio. The court then reverses the district court holding that the statute requires "previously offered sales" to be offered to all original bidders. The Secretaries of Interior and Agriculture offered the sales to previously identified high bidders, and where these bidders were unable to take advantage of the renewed offer, the Secretaries determined that nothing in §2001(k)(1) required them to seek out and release the sales to unsuccessful bidders. The court holds that §2001(k)(1) does not preempt the existing regulations governing the award of contracts, which give the agencies' discretion to award or refuse to award a sale where the high bidder is ineligible. Nothing in the language of §2001(k)(1) implies preemption of the regulations and there is no irreconcilable conflict between the regulations and §2001(k)(1).

The court next reverses the district court's determination that the Secretaries' use of the Pacific Seabird Group (PSG) protocol for determining when marbled murrelets are "known to be nesting" in a forest stand violates the statute. The district court erred in failing to defer, in the face of the uncertain meaning of "known" in the statute and its legislative history, to the Secretaries' interpretation. The district court also erred in substituting its own judgment on a question requiring highly specialized or scientific expertise. Given the language of the statute and the fact that Congress gave the agencies only 45 days to award the timber sales, the Secretaries' resort to a natural-history protocol that predated the current controversy in making nesting determinations under §2001(k)(2) is a reasonable interpretation of the statute.

Counsel for Plaintiffs
Patti A. Goldman
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before GOODWIN and SCHROEDER, Circuit Judges, and ARMSTRONG, District Judge.*