Portland Audubon Society v. Hodel

No. 87-1160-JU (D. Or. January 29, 1988)

The court holds that a coalition of timber industry groups may not intervene as a defendant concerning plaintiffs' claim that the Bureau of Land Management violated the National Environmental Policy Act (NEPA) by failing to prepare a supplemental environmental impact statement for Oregon timber management plans to reflect allegedly significant new information regarding the northern spotted owl. Although an adverse decision could harm the business interests of the coalition's members, intervention as of right requires that the proposed intervenor's interest relate to the property or transaction that is the subject of the action. When a suit alleges that government agencies have failed to satisfy federal statutory procedural requirements, such as those imposed by NEPA, the agencies can be the only defendants. The court holds that restrictions placed on the coalition's participation in aspects of the case for which it has been granted intervention are premature, since it is entitled to the same rights as any party under the Federal Rules of Civil Procedure absent a specific reason to limit its participation.

[An earlier district court decision is published at 18 ELR 21210. The Ninth Circuit's opinion affirming this decision appears at 19 ELR 20367.]

Counsel for Plaintiffs
Victor M. Sher, Todd D. True
Sierra Club Legal Defense Fund
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Michael D. Axline, John E. Bonine
Western Natural Resources Law Clinic
University of Oregon, Eugene OR 97403
(503) 686-3823

Counsel for Defendant
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, S.W. Main, Portland OR 97205
(503) 221-2101

Counsel for Intervernors
Mark C. Rutzick
Preston, Thorgrimson, Ellis & Holman
3200 U.S. Bancorp Tower, 111 S.W. Fifth Ave., Portland OR 97204
(503) 228-3200

[19 ELR 20366]

Frye, J.:

Opinion

In the matter before the court, the defendant-intervenor, Northwest Forest Resource Council (NFRC), requests reconsideration by this court, pursuant to 28 U.S.C. § 636(b)(1)(A), of certain portions of an order of the Honorable George E. Juba, United States Magistrate, dated December 14, 1987. The order sets out the background of the action as follows:

This action arises out of an administrative proceeding pending before the Interior Board of Land Appeals. In that proceeding the plaintiffs, who are various environmental groups, are appealing a decision of the Oregon State Director of the Bureau of Land Management (BLM) not to prepare a supplemental environmental impact statement (EIS). Between 1979 and 1983 the BLM prepared an EIS for each of the seven timber management plans currently in effect for the BLM lands in Oregon. The plaintiffs contend that the BLM is required to prepare a supplemental EIS because new information has been developed since the original EISs were prepared.

The plaintiffs also challenge the BLM's 1983 Forest Resources Police Statement (FRPS). This statement, according to plaintiffs, establishes the BLM's policy for managing forest resources on BLM's lands. Plaintiffs contend that this policy violates the Oregon and California Lands Act, 43 U.S.C. §§ 1181a et seq. Finally, plaintiffs contend that the BLM's management of the forest resources in such a method that destroys habitat for the northern spotted owl violates the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq.

The proposed intervenor, the Northwest Forest Resource Council (NFRC) is a coalition of ten timber industry groups. Members of those groups bid on and purchase timber from lands managed by the BLM. The NFRC seeks to intervene because the outcome of this lawsuit may affect the availability of federal timber for sale to members of the NFRC. The NFRC seeks to intervene as a matter of right, or, in the alternative, for permission to intervene.

In that order, Judge Juba allowed NFRC to intervene as a matter of right or permissively as to all claims except for Count 1 of the complaint which asserts that the defendant has violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., by failing to prepare a supplemental environmental impact statement for its timber plans to reflect alleged significant new information regarding the northern spotted owl. Judge Juba concluded that Count 1 is the type of claim in which the government is the only proper defendant and intervention was not appropriate.

NFRC asserts that it should be allowed to intervene as to Count 1 because plaintiffs effectively seek to shut down the entire timber sale program of the BLM, to the enormous and unquestionable detriment of the companies which belong to NFRC, for as long as it may take the BLM to prepare new impact statements.

Plaintiffs assert that Judge Juba correctly concluded that the provisions of the acts alleged in Count 1 seek to enforce obligations imposed upon federal agencies only and do not apply in any way to private citizens.

In addition, NFRC and the federal defendant object to the restrictions imposed by Judge Juba upon the participation by NFRC as follows:

3. Request for delays or extensive discovery by the NFRC will not be looked upon favorably; and

4. The NFRC and the BLM are required to coordinate their briefing and other submissions of materials. Separate papers should be submitted only when the NFRC's position demonstrably and necessarily differs from that of the defendants.

(Order dated December 14, 1987, p. 11).

NFRC argues that these restrictions on its participation in this lawsuit are improper and unworkable, and that Judge Juba has recognized that NFRC has a right to intervene in this action as a party, and therefore there is no basis for denying NFRC the same rights under the Federal Rules of Civil Procedure which any party to a lawsuit enjoys. To the extent that Judge Juba's restrictions act as restrictions upon the federal defendant, it too objects to them.

Analysis and Conclusion

This court reviews JudgeJuba's order under 28 U.S.C. § 636(b)(1)(A) to determine whether it has been shown that the order is clearly erroneous or contrary to law.

As to the denial of NFRC's motion to intervene on Count 1, the court finds that Judge Juba's order is not clearly erroneous or contrary to law. While NFRC points out that a decision against the defendant may have a negative impact upon the business of its members, intervention as a matter of right requires that the proposed intervenor's interest relate to the property or the transaction which is the subject of the action. Fed. R. Civ. P. 24(a)(2). Judge Juba was not clearly erroneous in relying upon the reasoning in Wade v. Goldschmidt, 673 F.2d 182 [12 ELR 20394] (7th Cir. 1982). As Wade points out, when the focus of a proceeding is whether governmental bodies charged with compliance with a statute have satisfied the federal statutory procedural requirements in making administrative decisions, the governmental bodies charged with compliance can be the only defendants. Id. at 185.

However, the court concludes that Judge Juba's restrictions upon NFRC's intervention in this case are premature. A party entitled to intervene is entitled to the benefit of its own advocacy absent a specific reason to limit its participation.

The court denies the motion of the defendant-intervenor, NFRC, to reconsider Judge Juba's order of December 14, 1987, with the exception of Nos. 3 and 4 of the conclusion. As to Nos. 3 and 4 of the conclusion, they are heretofore deemed vacated.