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18 ELR 21210 | Environmental Law Reporter | copyright © 1988 | All rights reserved Portland Audubon Society v. Hodel No. 87-1160-FR (D. Or. April 20, 1988)The court holds that a congressional continuing resolution limiting judicial review of Bureau of Land Management (BLM) timber management plans (TMPs) precludes a challenge to timber sales in old-growth timber stands in Oregon that provide habitat for the northern spotted owl. The resolution allows the Forest Service and BLM to use existing management plans until new plans mandated by the National Forest Management Act and the Federal Land Policy and Management Act are completed, and prohibits challenges to the plans based solely on information gained subsequent to the plan's completion. TMPs for BLM lands in Oregon were completed in the early 1980s, but subsequent studies generated new information regarding the habitat requirements and biological status of the northern spotted owl. The court holds that plaintiffs' challenge to BLM's timber sales in old-growth stands in western Oregon is prohibited by the continuing resolution. Plaintiffs allege that the TMPs are outdated with respect to treatment of the northern spotted owl, and they base this allegation solely upon the information that has become available since the completion of the existing TMPs. The court rejects plaintiffs' argument that the resolution cannot repeal the judicial review provisions of the Administrative Procedure Act (APA) by implication. The resolution expressly limits judicial review of TMPs, and Congress' failure to cite the APA in so limiting review is immaterial. Counsel for Plaintiffs Counsel for Federal Defendant Counsel for Defendants-Intervenors Frye, J.: Opinion In the matter before the court, the defendant, Donald Hodel, Secretary of the United States Department of Interior, moves the court for an order dismissing this action pursuant to Fed. R. Civ. P. 12(b)(1) and (6) on the grounds that the court lacks subject matter jurisdiction and that the plaintiffs have failed to state a claim for which relief can be granted. Background This is an action for declaratory and injuctive relief. Plaintiffs, Portland Audubon Society, Headwaters, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Umpqua Valley Audubon Society, and Natural Resources Defense Council, are environmental organizations who are challenging the decision of the Oregon Director of the Bureau of Land Management (BLM) to sell for harvesting certain old-growth timber located on BLM lands in the State of Oregon. Old-growth timber is the natural habitat of the northern spotted owl. Defendant, Donald Hodel, Secretary of the United States Department of Interior, is sued in his official capacity. Defendant-Intervenors have economic interests in the outcome of this case. Plaintiffs allege violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., the Oregon & California Lands Act, 43 U.S.C. § 1181, the Federal Lands Policy and Management Act, 43 U.S.C. §§ 1701 et seq., the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 553 et seq. Plaintiffs seek an order directing Secretary Hodel to halt timber sales from those timber stands which are older than 200 years and which lie within a 2.1 mile radius of the known habitats of the northern spotted owl, including 289 sites identified on maps prepared by the BLM for analysis in the preparation of the Spotted Owl Environmental Assessment. Plaintiffs request that the proposed order remain in effect until the BLM prepares a supplemental Environmental Impact Statement which discloses the projected effects of the destruction of old-growth forests on populations of the northern spotted owl and until Secretary Hodel complies with the Migratory Bird Treaty Act. Factual Allegations of the Complaint Old-growth forest ecosystems are unique ecosystems. An old-growth forest ecosystem takes at least 200 years to develop. Much of the past and on-going research regarding old-growth forest ecosystems has focused upon the northern spotted owl. The northern spotted owl is regarded by biologists as a "management indicator species" since its fate is presumed to be an indication of the fates of all species which inhabit old-growth forest ecosystems. Between 1979 and 1983, Secretary Hodel formulated Timber Management Plans (TMPs) for each decade for each of the seven districts of the Department of Interior located in western Oregon. These TMPs were accompanied by seven separate Environmental Impact Statements (EISs). The information reviewed by the BLM in preparing these EISs indicates that the logging of old-growth forests will result in a decline in the number of northern spotted owl inhabiting those old-growth forests. In March 1983, Secretary Hodel adopted a Forest Resources Policy Statement, which sets out policies for the management of forest resources on BLM lands affected by the Oregon and California Lands Act, 43 U.S.C. § 1181. The Forest Resources Policy Statement requires that all lands classified as suitable for timber production will be managed for timber and wood product production to the maximum extent possible under the law. Land suitable for timber production can be used for purposes other than timber production only if those other uses are specifically set forth in the Oregon and California Lands Act. Because Secretary Hodel has interpreted the Oregon and California Lands Act as not including the protection of wildlife or habitat, except as required by the Endangered Species Act, the Forest Resources Policy Statement prohibits the withdrawal of lands classified as suitable for timber production to protect wildlife or habitat not specifically listed under the Endangered Species Act. A number of scientific studies have been released since the time that the BLM completed the EISs for the seven districts of the Department of the Interior located in western Oregon. These studies include: 1) a status review of the northern spotted owl by the United States Fish and Wildlife Service (1982); 2) a draft supplemental EIS prepared by the United States Forest Service analyzing the habitat requirements of the northern spotted owl (1986); 3) a study of the northern spotted owl undertaken by a "blue ribbon" panel of respected scientists for the National Audubon Society (1986); 4) an analysis of the population demographics of the northern spotted owl by Dr. Russell Lande (1985 and 1987); and 5) an analysis of the northern spotted owl prepared by a team of biologists from the Department of Interior (May 8, 1986 and January 16, 1987). In addition to these studies, other research projects have generated significant new information concerning the northern spotted owl. Assistant Secretary of Agriculture, Douglas MacCleery, has ordered the United States Forest Service to prepare a supplemental EIS on the effects of the destruction of old-growth timber on the northern spotted owl. MacCleery's decision to order a supplemental EIS is based on the fact thatsignificant new information has been developed on the northern spotted owl since the Forest Service released its original EIS on June 14, 1984. This new information includes the information provided by Dr. Russell Lande. On February 3, 1987, the Oregon State Director of the BLM issued a Spotted Owl Environmental Assessment, which purports to review the significance of the new information concerning the habitat requirements of the northern spotted owl. The Spotted Owl Environmental Assessment, however, does not analyze or discuss any of the new information contained in the many studies of the northern spotted owl that have been released since the completion of the seven original EISs. On April 10, 1987, the Oregon State Director of the BLM decided to continue logging old-growth timber as proposed in the original Timber Management Plan. The Director of the BLM decided not to supplement the seven original EISs because he deemed "not significant" the new information regarding the effects of logging old-growth timber on the northern spotted owl. As a result, old-growth timber on BLM lands in western Oregon will be logged at a rate that will foreclose Secretary Hodel's ability to provide meaningful protection for the northern spotted owl and other old-growth dependent species. New resource management plans scheduled for 1990 will be too late to stop the irreversible effects of current old-growth forest destruction. On June 10, 1987, plaintiff appealed the decision of the Oregon State Director of the BLM to the Interior Board of Land Appeals requesting an immediate stay of all sales of timber from stands older than 200 years within a 2.1 mile radius of each of the 289 known northern spotted owl habitat sites analyzed in the Spotted Owl Environmental Assessment. On July 1, 1987, the Interior Board of Land Appeals denied the plaintiffs' request for a stay. The Interior Board of Land Appeals based its denial solely on the ground that plaintiffs had failed to show a substantial threat of irreparable injury to the northern spotted owl because the record before it was silent as to any specific proposed timber sale that would affect the habitat of the northern spotted owl. On September 4, 1987, plaintiffs filed a renewed request for a stay with the Interior Board of Land Appeals. Plaintiffs attached a list of all old-growth sales located within a 2.1 mile radius of the known habitat sites of the northern spotted owl and that Secretary Hodel had scheduled to offer for sale in the next three years. In addition, plaintiffs requested a stay of all planning for timber sales, including site selection and the initiation of environmental assessments, for old-growth standards as described above, unless Secretary Hodel first prepared an EIS with respect to each sale. Due to the immediate and irreparable effects of defendants' proposed sales on the old-growth ecosystems, and therefore on the northern spotted owl, plaintiffs advised the Interior Board of Land Appeals that they would view the Interior Board of Land Appeals' failure to act within twenty days on the renewed request for a stay as a denial of their request. As of the date of the filing of this case, twenty days have expired, and the Interior Board of Land Appeals has failed to act on plaintiffs' renewed request for a stay. In 1982, the United States Fish and Wildlife Service refused to consider the northern spotted owl for placement on the endangered species list. On July 24, 1987, the United States Fish and Wildlife Service decided to formally consider the northern spotted owl for placement on the endangered species list. The change in the position of the United States Fish and Wildlife Service was based in part on the significant new information that plaintiffs have urged Secretary Hodel to consider. The decision of the United States Fish and Wildlife Service is significant "new information." The Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., prohibits the killing of any migratory bird by any means or in any manner, unless within the authority and to serve the purposes of the Migratory Bird Treaty Act. The northern spotted owl is a migratory bird protected by the Migratory Bird Treaty Act. The Migratory Bird Treaty Act gives effect to the goals of treaties between the United States and Great Britain (on behalf of Canada), Mexico and Japan. Logging of old-growth forests kills the northern spotted owl by destroying its habitat. Such logging is a major cause of the decline in the population of the northern spotted owl and is likely to lead to the ultimate extinction of the northern spotted owl. Claims of the Plaintiffs On October 19, 1987, plaintiff filed this action alleging four claims for relief. These claims are: 1. the destruction of old-growth forests constitutes major federal action which detrimentally affects the quality of the human environment in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321; 2. defendants' Forest Resource Policy Statement precludes Secretary Hodel from withdrawing lands otherwise suitable for commercial logging in order to protect the habitat of the northern spotted owl in violation of the O & C Lands Act, 43 U.S.C. § 1181(a); 3. defendants' Forest Resources Policy Statement violates the multiple use mandate of the Federal Lands Policy and Management Act, 43 U.S.C. § 1701; and 4. destruction of old-growth forests kills the northern spotted owl in violation of the Migratory Bird Treaty Act, 16 U.S.C. § 703. Contentions of the Defendant Secretary Hodel asks the court to dismiss this action on the following grounds: 1. plaintiffs are barred by laches from maintaining this action and are barred by the doctrine of collateral estoppel from challenging the Timber Management Plans of the Forest Service Districts of Roseburg, Eugene and Coos Bay; 2. this action is premature in that the land management policies of the BLM are not ripe for review, and the doctrine of administrative jurisdiction requires dismissal of plaintiffs' complaint; 3. plaintiffs have not exhausted their administrative remedies; 4. this court is not empowered to determine plaintiffs' claims under the regulations of the Council on Environmental Quality; 5. there is no private right of action to enforce the Migratory Bird Treaty Act; and 6. a congressional continuing budget resolution forecloses judicial review of plaintiffs' claims. Standard of Review In ruling on this motion to dismiss pursuant to Fed. R. Civ. P. 12, the court will assume that the allegations of the complaint are true and therefore will construe the allegations of the complaint in the light most favorable to the plaintiffs. As a general rule, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The purpose of a motion to dismiss is to test the legal sufficiency of a plaintiff's complaint, assuming the facts as alleged therein to be true.[*] Analysis The court must first address Secretary Hodel's argument that judicial review of plaintiffs' claim has been barred by the enactment of section 314 of Continuing Resolution, H.J. Res. 395, which provides: SEC. 314. The Forest Service and Bureau of Land Management are to continue to complete as expeditiously as possible development of their respective Forest Land and Resource Management Plans to meet all applicable statutory requirements. Notwithstanding the date in section 6(c) of the NFMA (16 U.S.C. 1600), the Forest Service, and the Bureau of Land Management under separate authority, may continue the management of lands within their jurisdiction under existing land and resource management plans pending the completion of new plans. Nothing shall limit judicial review of particular activities on these lands: Provided, however, That there shall be no challenges to any existing plan on the sole basis that the plan in its entirety is outdated, or in the case of the Bureau of Land Management, solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan: Provided further, That any and all particular activities to be carried out under existing plans may nevertheless be challenged. 133 Cong. Rec. H12468 (daily ed. Dec. 21, 1987). Secretary Hodel argues that section 314 expressly revokes this court's jurisdiction to resolve plaintiffs' alleged grievance. Secretary Hodel argues that the goal of plaintiffs' lawsuit is to prevent the BLM from managing timber resources under existing Timber Management Plans because the existing Timber Management Plans do not incorporate information made available subsequent to the adoption of the plans relating to the northern spotted owl and other old-growth dependent species. Secretary Hodel argues that section 314 of Continuing Resolution, H.J. Res. 395, was enacted at the behest of Senator Mark O. Hatfield to prevent this very lawsuit. Secretary Hodel argues that not only is section 314 unambiguous on its face, but also the Senate Committee Report on the Department of the Interior and Related Agencies Appropriation Bill, 1988 (S. Rep. No. 100-165, September 22, 1987), persuasively states the intention of Congress in enacting section 314 as follows: The Committee understands that the current land management planning process in the Forest Service and BLM is proceeding on a forest-by-forest and district-by-district basis. The purpose of these new plans are to align resource management activities with the most recent Federal environmental standards, procedures, and requirements. The Committee is concerned, however, by efforts to disrupt the development of new management plans, most notably sound timber management activities, through appeals of timber sales and threats of litigation. It was not the intent of Congress in passing NEPA, NFMA, or FLPMA to create a schism in the smooth transition of resource management activities from one planned period to another. Instead, the resource management planning process is intended to be a dynamic process which allows for the periodic consideration and integration of new resource information from one planning cycle to another without the interruption of management activities of any single resource. Except in rare instances, this cyclical planning process obviates the need to supplement existing EIS's, particularly toward the end of one planning cycle, when a new plan is being prepared. However, the precipitious increase in timber sales appeals and threats of litigation, especially on BLM lands in western Oregon, are designed to bring to a halt entire timber sales creating just such a division in planning cycles. The effect of these actions is to hinder the agency's ability to prepare and implement new plans, and may create unacceptable economic dislocations in timber-dependent communities. The Committee has, therefore, included bill language intended to prevent the existing management plans from being enjoined in their entirety, solely on the basis that they are out-dated, and allow activities to continue under existing plans pending the completion of new plans. Id., pp. 11-12 (emphasis added). Secretary Hodel asserts that the threats of litigation referred to in the above-quoted Senate Report specifically include this action which plaintiffs had threatened to file within twenty days if the Interior Board of Land Appeals did not grant their renewed request for stay filed on September 4, 1987. Secretary Hodel argues that it was the express intention of Congress to repeal judicial review as it relates to the challenge by plaintiffs in this case. Plaintiffs argue that the language of section 314 does not apply to this case. Plaintiffs explain that section 314 limits judicial review of challenges to existing land management plans in their entirety, and that this action is not a challenge to existing land management plans in their entirety. In addition, plaintiffs assert that section 314 allows challenges to Timber Management Plans if the concerns raised by newly obtained information are substantive in nature. Plaintiffs point to the conference committee report, which explains the conference committee's changes to the Senate version which states that "existing plans may not be challenged solely on the basis that the plans are outdated or that there is new information, unless the claim includes information as to substantive concerns related to the new information." Plaintiffs next argue that section 314 cannot repeal by implication the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq. Plaintiffs contend that section 314 can only be reconciled with the APA by limiting the application of section 314 to challenges to entire management plans, and then only with respect to non-substantive concerns. Plaintiffs assert that the failure of section 314 to specifically refer to the APA supports their position that Congress did not intend to repeal its provisions. In this lawsuit, plaintiffs challenge the April 10, 1987 decision of the Oregon Director of the BLM not to consider new information regarding the effects of the cutting of old-growth timber on the northern spotted owl by preparing supplemental EISs. Plaintiffs ask the court to enjoin the BLM from all future old-growth timber sales within a 2.1 mile radius of known northern spotted owl habitat sites unless and until supplemental EISs are prepared. This action challenges each of the Timber Management Plans for the seven districts of the Department of the Interior located in western Oregon on the sole basis that new information concerning the northern spotted owl has been released since the time the BLM completed the seven EISs for these seven districts. (Plaintiffs' Complaint, para. 11.) Plaintiffs do not challenge individual timber sales. Plaintiffs' action challenges the continuing validity of the Timber Management Plans and the existing EISs resulting in the disruption of the ongoing management process until supplemental EISs are completed. The decision record from which plaintiffs appeal to this court concludes as follows: [It] would not be appropriate nor serve any worthwhile purpose to supplement any of the seven timber management EISs to further address this issue, and that implementation of the current BLM land-use plans (management framework plans) and timber management plans should continue until the new land-use plans (resource management plans) currently in preparation are completed. (Plaintiffs' Complaint, Ex. E, p. 103.) As stated above, section 314 provides, in relevant part, that: the Bureau of Land Management . . . may continue the management of lands within [its] jurisdiction under existing land and resource management plans pending the completion of new plans . . . [and] That there shall be no challenges to any existing plan on the sole basis that the plan in its entirety is outdated, or . . . does not incorporate information available subsequent to the completion of the existing plan. . . . Plaintiffs allege in their complaint that the Timber Management Plans are outdated as they relate to the treatment of the northern spotted owl. Plaintiffs base this allegation solely upon new information which has become available since the completion of the existing Timber Management Plans. Plaintiffs' complaint in this case contains the precise challenge that Congress intended to limit in section 314. The court concludes that Congress intended to prohibit judicial review of challenges to existing Timber Management Plans on the basis that they do not incorporate information which has become available after the adoption of the existing Timber Management Plans. Plaintiffs' assertion that judicial review under the APA cannot be repealed by implication is without merit. Section 314 expressly limits judicial review under the circumstances presented in this case. The fact that Congress did not make a citation to the APA in limiting the review allowable does not change Congress' stated intent to limit all judicial review except as noted whether it be pursuant to the APA or another statute. Judicial review under the APA is subject to the structure of the statutory scheme under which relief is requested. In Block v. Community Nutrition Inst., 467 U.S. 340 (1984), the Court explained: The APA confers a general cause of action upon persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, but withdraws that cause of action to the extent the relevant statute "preclude[s] judicial review," 5 U.S.C. § 701(a)(1). Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved. Therefore, we must examine this statutory scheme "to determine whether Congress precluded all judicial review, and, if not, whether Congress nevertheless foreclosed review to the class to which the [respondents] belon[g]." Barlow v. Collins, 397 U.S. 159, 173, 90 S. Ct. 832, 841, 25 L. Ed. 2d 192 (1970) (opinion of BRENNAN, J.). . . . Id. at 345-46 (citations omitted). Plaintiffs' assertion that judicial review is not precluded as to substantive concerns by section 314 is without merit. While the conference committee report uses this language, nothing in the express language of section 314 supports plaintiffs' position that this is the proper interpretation of section 314. Congress has the power to limit the availability of judicial relief under NEPA, the Federal Lands Policy Management Act, the O & C Lands Act, and the Migratory Bird Treaty Act. The finding by the court that Congress has done so in enacting section 314 means that plaintiffs are not entitled to the relief requested in their complaint. Section 314 operates to preclude plaintiffs' entire action. Defendant's motion to dismiss is granted. Order IT IS HEREBY ORDERED that the motion of defendant, Donald Hodel, Secretary of the United States Department of Interior, to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and (6) on the grounds that the court lacks subject matter jurisdiction and that the plaintiffs have failed to state a claim for which relief can be granted is GRANTED. Judgment Based on the record, IT IS ORDERED AND ADJUDGED that this action is dismissed. * The defendant has submitted a large number of exhibits and affidavits. The court will not treat plaintiffs' motion to dismiss as a motion for summary judgment. The court will base its decision upon the motion to dismiss only on the facts as alleged in the complaint. 18 ELR 21210 | Environmental Law Reporter | copyright © 1988 | All rights reserved |