National Wildlife Federation v. United States Forest Service

No. 84-4274 (9th Cir. September 30, 1986)

The court dismisses as moot a challenge to timber sales in the Siuslaw National Forest in Oregon since the Forest Service has withdrawn its plan until the completion of the forest plan and the environmental impact statement (EIS). The parties agree that the National Forest Management Act claims and National Environmental Policy Act claims have been mooted by the Service's withdrawal of the Seven Year Action Plan and its commitment not to proceed with timber sales until the Suislaw Forest Plan and the accompanying EIS have been completed. The court holds that plaintiff's challenge under the Multiple Use Sustained Yield Act is also moot, since there is no live controversy or ongoing violation of the Act. The court vacates the portion of the district court's judgment requiring the Forest Service to include a worst case analysis and an analysis of the cumulative impacts of each timber sale in the plan.

[The district court decisions are published at 14 ELR 20755 and 15 ELR 20931.]

Counsel for Plaintiffs-Appellants
Terence L. Thatcher
National Wildlife Federation
708 Dekum Bldg., 519 SW 3rd Ave., Portland OR 97204
(503) 222-1429

Counsel for Appellees
Phillip Chadsey
Stoel, Rives, Boley, Fraser & Wyse
900 SW 5th Ave., Portland OR 97204-1268

Peter R. Steenland, Claire L. McGuire, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

[17 ELR 20344]

Solomon, J.:

Memorandum

We dismiss this appeal as moot. The National Wildlife Federation (Wildlife) obtained an injunction in the district court against the United States Forest Service's Seven Year Action Plan for timber sales in the Mapleton District of the Siuslaw National Forest. Defendants did not appeal. Wildlife, however, did, and seeks to broaden the injunction it obtained. The additional relief, like the relief afforded by the district court, is sought under the National Environmental Policy Act, the National Forest Management Act and the Multiple Use Sustained Yield Act.

The parties agree that the Forest Service's withdrawal of the Seven Year Action Plan and its commitment not to proceed with any further timber sales in the Mapleton District pending completion of the Siuslaw Forest Plan and the accompanying environmental impact statement have rendered moot Wildlife's challenge to the scope of the injunction under the National Environmental Policy Act and the National Forest Management Act. Wildlife contends, however, that its appeal under the Multiple Use Sustained Yield Act presents a live controversy, because it sought relief in the district court for what it alleged constitutes an ongoing violation of the Act in the Mapleton District — the failure to reforest — as well as for the alleged separate violation created by the Seven Year Action Plan.

We disagree with Wildlife's characterization of its litigating position in the district court. Wildlife presented itscase to that court as an action to enjoin the Forest Service's proposed timber sales, not an action to reforest the Mapleton District, and the court ruled on its claims accordingly. Wildlife alleged the poor condition of the Mapleton District as a reason why the Forest Service should not proceed with the Seven Year Action Plan, contending that the Plan would have a more deleterious effect on forest productivity than if the District were in good condition. The district court rejected Wildlife's Multiple Use Sustained Yield Act claim, ruling that "[t]he proposed timber sales should not be enjoined under MUSY because of past damage to fish habitats."

On appeal, we will not convert Wildlife's case from an action to enjoin the Forest Service's Seven Year Action Plan to an action to reforest the Mapleton District merely in order to preserve our jurisdiction. Should the Forest Service propose to harvest the Mapleton District in its next Forest Plan, Wildlife's claim that the Multiple Use Sustained Yield Act prohibits the harvesting of timber under conditions of impaired productivity may present a live controversy and may be justiciable. It is not now.

Pursuant to the parties' Joint Report, we vacate the last clause of paragraph six of the district court's amended judgment, to wit, the words: "or in the alternative, the federal defendants must include a worst case analysis and an analysis of the cumulative impacts of the environmental assessment for each timber sale in the Seven Year Action Plan." Pursuant to the Forest Services concessions at oral argument, and upon our resolution of the issues on appeal which the parties have been unable to settle, we also vacate all of paragraph seven of the district court's amended judgment.¹ The remainder of the judgment shall remain in effect.

Pursuant to 9th Cir. R.21 an order that will be published is filed concurrently with this memorandum. The appeal is DISMISSED.

1. We believe that the parties' failure to stipulate to a vacation of the court's dismissal of Count II (violation of the National Forest Management Act) constitutes an oversight. That Count is in no different posture than Count I. In the Joint Report, Wildlife does not urge that Count II presents a live controversy or that we should rule on it. Accordingly, we vacate the dismissal of Count II as well as of Counts I and III.