Headwaters, Inc. v. Bureau of Land Management

No. 89-6016 (D. Or. May 3, 1989, amended May 23, 1989)

The court holds that the Bureau of Land Management (BLM) was not required by the National Environmental Policy Act (NEPA) to prepare a supplemental environmental impact statement (EIS) after the discovery of new information regarding the presence of nesting northern spotted owls in an old-growth timber sale area in Oregon. The court initially holds that a congressional continuing budget resolution prohibiting judicial review of BLM timber management plans solely on the basis of new information does not preclude review of plaintiff's claim. After noting that the Supreme Court's recent holdings in Marsh v. Oregon Natural Resources Council, 19 ELR 20749, and Robertson v. Methow Valley Citizens Council, 19 ELR 20743, establish an arbitrary and capricious standard for a federal agency's decision not to supplement an EIS, the court holds that plaintiff has not met the requirements for a preliminary injunction halting the challenged timber sale. The new information did not require the BLM to supplement the EIS, since earlier NEPA documents encompassing the sale area did consider the impacts of logging old-growth forests on the spotted owl. Further, under the Marsh decision, the agency is not required to prepare supplemental materials for all new information, and in factual disputes requiring substantial technical expertise, the reviewing courts should largely defer to the agency. The court next holds that the BLM adequately considered the cumulative impacts of the timber sale on the spotted owl, soil erosion, and water quality in its earlier NEPA documents. The court also holds that the BLM adequately addressed measures to mitigate the effects of the sale on the spotted owl, since the sale contract allows BLM to halt logging until further notice if a spotted owl nest is discovered. The court holds that BLM did not violate NEPA by tiering the environmental assessment (EA) for the sale area to a programmatic EIS. Although the area in question is not homogenous, the site-specific timber sale EA and the programmatic timber management plan EIS together are sufficient. The court next holds that the BLM adequately considered reasonable alternatives and the no action alternative. Both the EA and the EIS contained a range of alternatives and public comment was invited. Additionally, the court holds that a site-specific multiple-use analysis for the public domain lands within the sale area is not required by either the Federal Land Policy and Management Act or the Administrative Procedure Act. The court holds that the BLM has not violated the Oregon and California (O & C) Lands Act, since O & C lands are to be managed with timber production as the dominant use. The court finally holds that the laches defense is not available to BLM.

[Decisions in related litigation are published at 19 ELR 21177 and 21230.]

Counsel for Plaintiff
Charles G. Levin
Headwaters, Inc.
P.O. Box 1075, Grants Pass OR 97526
(503) 474-6034

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Roger Nesbit, Ass't U.S. Attorneys
312 U.S. Courthouse, 620 SW Main, Portland OR 97205
(503) 221-2101

Amended Opinion and Order

I. Introduction

Plaintiff brings this action for declaratory and injunctive relief against the Bureau of Land Management (BLM), Medford District; David A. Jones, District Manager; Croman Corporation, and intervenor Association of O & C Counties (O & C).

[19 ELR 21160]

Plaintiff Headwaters, Inc. seeks a preliminary injunction to prevent defendant BLM from allowing defendant Croman, the purchaser of the Wilcox Peak Timber Sale, to begin building a road and thereafter logging the sale. Construction of the road, which provides access to the several units in the sale, was scheduled to begin May 3, 1989. Plaintiff contends the Wilcox Peak Timber Sale violates: a) the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321 et seq.; b) the Oregon and California Railroad and Coos Bay Wagon Grant Lands Act of August 28, 1937, (O & C Act), 43 U.S.C. Sections 1181(a)-(f); c) the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. Section 1701 et seq.; and d) the Administrative Procedure Act (APA), 5 U.S.C. Section 553 et seq. Plaintiff pleads six causes of action.

Defendants counter with defenses of failure to exhaust administrative remedies, laches, and challenges as to the timeliness of plaintiff's supplemental claims. Intervenor "O & C" presents additional contentions opposing injunctive relief.

Hearings began on April 21, 1989, in Eugene, during which about a half-day's testimony was taken. Further testimony was taken on April 25, in Portland; evidence taking was concluded on April 27. On April 28, I notified counsel that I thought it necessary to view the premises. On May 1, I viewed the site.¹

On May 3, 1989, I imposed a temporary restraining order prohibiting commencement of activity effective to May 12. This was later extended to May 17, and then to May 19. In the short time allowed, I have considered the enormous record and the extensive arguments and memoranda offered. Though it is a close question as to the NEPA issues, I deny plaintiff's motion for preliminary injunction.

Original jurisdiction exists over this federal question, under 28 U.S.C. Section 1331. The government did assert lack of jurisdiction under Section 314 of the 1988 continuing budget resolution in its answer as an affirmative defense.² This contention was not strongly pressed. At this time, and in a preliminary injunction context I rule against federal defendants on the Section 314 aspect of this case. I reserve the right to amend this opinion if, after issuance of rulings by my colleagues Judges Frye and Marsh, I am convinced I should. Judge Frye and Marsh have cases currently before them where this issue has been fully explored in both region-wide and single-sale contexts. See Portland Audubon v. Lujan, No. 87-1160-FR [19 ELR 21230] (D. Or.); Oregon Natural Resources Council v. Mohla, No. 88-1377-MA [19 ELR 21177]. Pursuant to Fed. R. Civ. P. 52(a), the following are my findings of fact and conclusions of law.

II. Background

BLM manages 2,386,500 acres of Federal Lands in six western Oregon Districts. In the Jackson and Klamath Sustained Yield Units of the Medford District, the BLM manages 488,258 acres. The Wilcox Peak Timber Sale contains 323 acres of timber within the Jackson Klamath Sustained Yield Unit. The Wilcox Peak Sale is located approximately five miles west of Interstate Five. The sale contains approximately 234 acres of large saw timber and old growth timber in the Sardine Creek area. According to the government's witness James Renthal, 39 acres of timber are in the 200-year-or-older age class: 28 acres of those acres correspond to unit 19-1B and 11 acres are located in 19-1A.

The presence of Spotted Owls on or near the Wilcox Timber Sale was confirmed during the summer of 1988. The nest containing owlets is located approximately 100 feet from unit 30-7A. The Spotted Owl is listed by the State of Oregon as a threatened species and its federal status is currently undergoing review. (Ex. 22 A-D).

In November, 1979, BLM published a Timber Management Plan Environmental Statement (TMP-EIS) for JKSYU. (Ex. 2) The 1979 EIS contained a proposed ten-year Timber Management Plan and a proposed concurrently adopted Management Framework Plan. The EIS discusses potential environmental impacts on the 488,258 acres.³

The EIS considered five alternative management systems. Plaintiff and other members of the public were invited to comment on the draft of the EIS. (Ex. 2 at 9-1). On May 13, 1980, BLM issued a Record of Decision (ROD) (Ex. 101), selecting one of the alternatives recommended in the EIS.

In May, 1985, BLM issued a final supplement to the Final Environmental Impact Statement (FEIS or SEIS) (Ex. 3). On July 26, 1985, a ROD (Ex. 102) modifying the Medford District's Timber Management Plans (TMP) was issued. This ROD was re-issued November 15, 1985. (Ex. 103).

On May 22, 1986, an Environmental Assessment (EA) (Ex. 1A) of the Wilcox Peak Timber Sale was issued. This EA is "tiered" to the TMP-EIS.⁴

On October 21, 1986, representatives of plaintiff and residents of the Sardine Creek area, and BLM staff attended a meeting and discussed their concerns over the proposed sale. A Finding of No Significant Impact (FONSI) was signed November 12, 1986, (Ex. 1B) and amended on June 12, 1987. (Ex. 104).

Plaintiff filed with BLM a formal protest of the proposed saleon July 16, 1987, pursuant to 43 C.F.R. Section 5003.3. (Ex. 1C). The protest was denied on April 19, 1988. (Ex. 1D).

Meanwhile the Wilcox Peak Timber Sale was offered for oral auction on July 30, 1987; high bidder was defendant Croman. (Ex. 1Q). Plaintiff, on April 26, 1988, appealed BLM's denial of the protest to the Department of Interior Board of Land Appeals (IBLA).⁵ On April 26, 1988, plaintiff requested an emergency stay from IBLA. (Ex. 1E). BLM responded on May 17, 1988 to plaintiff's request for stay. (Ex. 1H). BLM stated its intent to delay the sale for 30 days while IBLA reviewed the request for a stay. The request for stay is still pending before IBLA. The contract for sale was awarded on October 18, 1988. This action was filed January 11, 1989.

III. Standards for Preliminary Injunction

A court may grant injunctive relief when the plaintiff has shown irreparable injury and inadequate legal remedies. AMOCO Production Co. v. Village of Gambell, 480 U.S. 531, 107 S. Ct. 1396, 1402 [17 ELR 20574] (1987). "In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Id. The Court, addressing the issue of environmental harm, stated: "[e]nvironmental injury by its nature can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." 107 S. Ct. at 1404.

Traditionally Circuit law has employed a four-part test in determining whether to grant a preliminary injunction. The court was required to find: "1) [T]he plaintiff will suffer irreparable injury if the relief is not granted, 2) the plaintiff will probably prevail on the merits, 3) in balancing the equities, the defendants will not be harmed more than the plaintiff is helped by the injunction, and 4) granting the injunction is in the public interest." Wm. Inglis & Sons Baking v. ITT Cont. Baking Co., 526 F.2d 86 (9th Cir. 1975).

An alternative two-prong test is also to be employed; plaintiff must show "[E]ither a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardship tips in its favor." Hunt v. NBC, No. 87-6625, slip op. at 3348-49 (9th Cir. 1989) (citing United States v. Odessa Union Warehouse Co-Op, 833 F.2d 172, 174 (9th [19 ELR 21161] Cir. 1987)). A sliding scale has been employed where the requisite degree of irreparable harm increases as the likelihood of success decreases. Id. The minimum that must be shown by the party seeking relief is a fair chance of success on the merits, or that serious questions have been raised, requiring litigation. Id. at 3349; Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir. 1987).

IV. NEPA Issues

Plaintiff contends that defendants have violated NEPA by refusing to prepare an original site-specific EIS, by failing to address the cumulative impacts or the site-specific impacts on the Wilcox Peak Sale, and by failing to consider reasonable alternatives or a no action alternative. 42 U.S.C. Section 4332(2)(C) and 40 C.F.R. Section 1502.3. Plaintiff also raises numerous contentions concerning soil erosion, water quality, and silvicultural practices and methods, largely based on the affidavit of Mr. Wigg. The central issues in this case involve the Spotted Owl, especially since the discovery last year of a pair of breeding Spotted Owls with juveniles near the sale.⁶ This discovery and the flaming region-wide controversy over the Spotted Owl⁷ and other old-growth dependent wildlife presents the issue of whether developing information and evaluation is sufficiently significant to require the agency to supplement earlier NEPA documents, to mitigate, or to prepare a site-specific EIS on the Wilcox Peak Sale.

In the May 3 order, restraining road building and sale related activities, I characterized the NEPA issues as being "cumulative impacts", new information and supplemental issues and mitigation. As of that time, my view was that these were close issues, especially in light of the fact that the two new Supreme Court opinions in Marsh and Robertson had just been issued and needed careful study. Marsh v. Oregon Natural Resources Council, No. 87-1704, slip op. at 16-17 [19 ELR 20749] (S. Ct., May 1, 1989) and Robertson v. Methow Valley Citizens Council, No. 87-1703, slip op. at 16 [19 ELR 20743] (S. Ct. May 1, 1989). I will treat these several NEPA claims together. As the reader will see, I still view them as close, especially in a preliminary injunction context.

1. Standards

NEPA is primarily a procedural statute requiring federal agencies to follow specified procedures in providing detailed statements about the environmental impacts of proposed actions. Trustees for Alaska v. Hodel, 806 F.2d 1378, 1382 [17 ELR 20323] (9th Cir. 1986). Circuit law called for the reviewing court to be sure the agency took a "hard look" at the potential environmental impacts of its proposed decision. Conner v. Burford, 836 F.2d 1521, 1526 (9th Cir. 1988) superceded by 848 F.2d 1441, 1446 [18 ELR 21182] (9th Cir. 1988) cert. den. 439 U.S. 1392 (1989).

The Supreme Court in Robertson, No. 87-1703, slip op. at 16, has now taught us that, "Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed — rather than — unwise agency action." And, the Supreme Court has now sharply reminded all lower courts that NEPA does not "[m]andate particular results, but simply prescribes the necessary processes . . .", see Robertson slip op. at 16.

The Court in Marsh, held, "We conclude that review of the narrow question before us of whether the corps' determination that the FEISS need not be supplemented should be set aside is controlled by the 'arbitrary and capricious' standard of § 706(2)(A)". Marsh slip op. at 14. The action here is the award of the Wilcox Peak Sale which occured October 18, 1988.⁸ (See Federal Defendants Supplemental Authorities, filed May 8, 1989). Thus, even though the FONSI as to this sale issues November 12, 1986 (Ex. 1B), and was amended on June 12, 1987 (Ex. 104), BLM had a continuing duty to prepare supplements if it discovered that there were, "[s]ignificant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Marsh, slip op. at 10-11. 40 C.F.R. Section 1502.9(c) (1987).

I am required to make a "searching and careful" inquiry; I am not to defer "automatically" to the agency. The reviewing court must ensure that agency decisions are founded on a reasoned evaluation "of the relevant factors." Marsh, slip op. at 16-17.

The bottom line of Marsh and Robertson is, however, that the agency action must be allowed to proceed unless the court finds the action is arbitrary and capricious. See 5 U.S.C. § 706. In making that determination the court must defer to the agency's own expertise in evaluating necessity of further supplementation of NEPA documents or in the taking of mitigating measures that are claimed by non-agency interests to be required by NEPA, in light of the information available to the agency up to the time that it takes its initial action on a federal project. See Marsh, slip op. at 12.⁹

2. Is a Supplemental EIS Required?

A. Supplemental Claims and New Information

Recent years have seen an active, even feverish period of study and analysis of the Spotted Owl. This "crisis" has grown as the conflict has grown between the conservationists (environmentalists) and the timber industry and many local communities whose economy is dependent on it. As competing claims have become increasingly frenzied, the agencies — primarily BLM and the Forest Service — have been battered about. Media coverage has increased and headline writers (ever true to their style) have boiled it down to "JOBS versus OWLS". Case law developed by differing layers of courts is seen by many as being inconsistent and hard — especially for the agencies and the public — to understand. Almost surely the long term solution can only be a more definitive policy established by the legislative branch, coupled with imaginative and dedicated use of mediation. Until that occurs, however, individual courts will have to struggle, but must decide concrete cases.

While there has been a great deal of information and evaluation region-wide of the Spotted Owl,¹⁰ in respect to the Wilcox Peak Sale, the amount of new information is surprisingly small. (See U.S. Fish & Wildlife, The Northern Spotted Owl: A Status Review, issued on April 21, 1989).

In Marsh, the Court gave me marching orders as follows:

[I]n the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance — or lack of significance of the new information.

Marsh, slip op. at 16.¹¹

Plaintiff contends that the agency did not evaluate the actual [19 ELR 21162] discovery of the family of Spotted Owls in the sale area nor make its evaluation of the Wilcox Peak Sale, in light of new information on fragmentation and isolation of Spotted Owl populations. Plaintiff's expert testified that these owls are a critical pair because they are located in a bottleneck area linking the Oregon Coast Range with the Cascades. (See witness statement of Chuck Sisco, Ex. 21 (map showing nesting sites), Ex. 18 (Interagency Management Guidelines at pp. 6 and A-4).¹² U.S. Fish and Wildlife Service, The Northern Spotted Owl: A Status Review Supplement, April 21, 1989, discusses the genetics of isolated and fragmented populations, "If the Columbia River corridor and the Interstate 5 corridor near Medford, Oregon are or were to become effective barriers to genetic continuity, then owl populations in each physiographic province in Washington and Oregon would became [sic] genetically isolated." Plaintiff's expert testified that isolation is the first step towards extinction.

Defendants counter this by urging me to follow comments in Marsh, slip op. at pp. 11-12, concerning the issue of supplementation:

[A]n agency need not supplement an EIS every time new information comes to light after the EIS is finalized. To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made. On the other hand, and as the government concedes, NEPA does require that agencies take a "hard look" at the environmental effects of their planned activities, even after initial approval.

[footnotes omitted]

Defendants argue that to require a new EIS the new information must provide a seriously different picture of the environmental impact. Wisconsin v. Weinberger, 745 F.2d 412, 418 [14 ELR 20744] (7th Cir. 1984). Defendants then point to the portions of the EIS that discuss the spotted owl, including the pessimistic outlook for the future, (Ex. 2 at pp. 1-11, 1-14, 1-25, 1-27, 2-19, 2-20, 2-22, 2-23, 2-27, 3-30, 3-41, 3-44, 5-3, 7-1, 8-6, 8-14, 8-19, 8-24, 8-30, and 8-35) and the EA (Ex. 1A at pp. 7 and 13-14) arguing that the agency did evaluate the effects of harvesting old growth on the Spotted Owl and that therefore no significantly different picture is presented. (Defendant cites to Ex. 1D). (Ex. 1D at p. 2, "The timber sale was delayed to further verify adjacent landowner claims of Spotted Owls in the sale area. No Spotted Owls were located.")

The EIS made the following pessimistic forecasts concerning the Spotted Owl:

Cavity nesting species would be irreversibly impacted as snags and potential snags would be reduced on approximately 33,000 acres. . . . Habitat for old-growth dependent species would be eliminated on about 30,000 acres during the first decade. This acreage would never again support old-growth habitat under the proposed management system. . . . Currently, there are 23 pairs of Northern Spotted Owls residing in the JKSYUs. Of these, 14 pairs occupy high intensity forest lands and are not included in the 8 pairs scheduled to receive complete habitat protection. . . . If remaining habitat is at carrying capacity, these 14 pairs of owls may be in jeopardy.

(Ex. 2 at p. 7-1.)

Despite these negative forecasts, it is evident that BLM remains somewhat uncertain about the long term effects of its actions on the species. The EIS made the following predictions concerning the Spotted Owl:

Additional northern spotted owls in excess of the eight pairs may have their habitat reduced or eliminated if it is in a sale area. The results of this action are unknown. However, if it is assumed that all lands are at carrying capacity, then it is likely these owls would be eliminated. . . . By following recommendations of the interagency management committee, the species as a whole would be only moderately affected.

(Ex. 2 at p. 3-41). (emphasis added).

The Northern Spotted Owl is the only species listed as threatened by the State of Oregon that would be adversely impacted. A decline in their numbers is probable. However, the species as a whole would only be moderately impacted.

(Ex. 2 at p. 3-46) (emphasis added).

It is not apparent solely from the EA, EIS or the SEIS that the agency considered the effects of fragmentation and isolation on the Spotted Owl as a species, in respect to the Wilcox Peak Sale. However, it is clear that the knowledge existed.

In evaluating the significance of the information I am faced with a "battle of the exerts". Many of the relevant documents in this case require some degree of technical sophistication in order to evaluate their meaning and their significance.¹³ as in Marsh, plaintiff's claim involves the resolution of factual disputes, implicating substantial agency expertise. Marsh, slip op. at 15. In Marsh, the question of whether the Corp's decision not to perform a second supplemental EIS should be set aside turned primarily on the contention that new information undermined the conclusion in the FEISS. The Court found that the dispute:

. . . [did] not turn to the meaning of the term "significant" or on an application of this legal standard to settled facts. Rather, resolution of this dispute involves primarily issues of fact. Because analysis of the relevant documents "requires a high level of technical expertise," we must defer to the "informed discretion of the responsible federal agencies." Id. at 15 (citing, Kleppe v. Sierra Club, 427 U.S. 390, 412 [6 ELR 20532] (1976) and Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103 [13 ELR 20544] (1983) ("When examining this kind of scientific determination . . . a reviewing court must generally be at its most deferential")).

Marsh, slip op. at 15.

Though the issue is close, I cannot say that BLM's failure to issue further NEPA documents in light of new information is such as to call for issuance of a preliminary injunction on this score. I do not find that plaintiff has met either four part test of Inglis or either prongs of the alternative two prong test announced in Inglis and followed since. W. M. Inglis & Sons Baking v. ITT Cont. Baking, 526 F.2d 86, 88 (9th Cir. 1975).

B. Cumulative Impacts

The cumulative impacts aspect of Marsh was not presented to the Supreme Court. Therefore, I resort to Ninth Circuit Law to the extent that it survives the two recent Supreme Court opinions. See Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1497 [18 ELR 20321] (9th Cir. 1987); 40 C.F.R. Section 1508.7. Where several actions have cumulative or synergistic environmental effects, NEPA requires an EIS considering these consequences. Sierra Club v. Penfold, 857 F.2d 1307, 1320-1321 [19 ELR 20207] (9th Cir. 1988); Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718 [6 ELR 20532] (1976). In Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1194 [18 ELR 20749] (9th Cir. 1988), a "cumulative impact" is described as follows:

[T]he impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can results from individually minor but collectively significant actions taking place over a period of time.

Id., citing 40 C.F.R. Section 1508.7; see also Thomas v. Peterson, 753 F.2d 754, 758 [15 ELR 20225] (9th Cir. 1985) (actions which individually have an insignificant environmental impact, but collectively [19 ELR 21163] have a substantial impact, must be considered together in one EIS).

1. Spotted Owl

Plaintiff contends that defendants failed to adequately address the cumulative impacts of the Wilcox Peak Sale on the Spotted Owl. Defendants argue there are no unanticipated environmental consequences to wildlife, Spotted Owls in particular. Defendants point out that the EA mentioned that Spotted Owls may be found on or near the site. (Ex. 1A pp. 7, and 13). The pessimistic forecasts concerning the future of the Spotted Owl which were made in the ES and the EA are set out above, I find no need to repeat them here. The agency did not fall short of its duty to evaluate the impacts of its actions on the Spotted Owl.

Given the haste with which this opinion was prepared there is an absence of sufficiently detailed reference to portions of the record that should be included. I intend to issue a supplemental opinion shortly, because the parties — and any reviewing appellate court are entitled to such.

2. Cumulative Impacts & Effects of Road Building and Logging Activities on Soil & Water Quality

Plaintiff also argues that defendants did not adequately consider the effects of logging and road building on soil erosion and water quality. However, based on my view of the proposed sale and evaluation of the evidence, I conclude defendants adequately considered the environmental impacts on these issues. (see footnote 1). The 1979 EIS, the 1985 SEIS and the 1986 EA gave sufficient consideration to the environmental impacts. The EA offers mitigating measures at p. 3 of the EA. (Ex. 1A). Plaintiff's witness offered testimony on soil erosion, water quality, and forestry techniques. (See Mark Wigg's affidavit). As to these issues I give credence to the agency's evaluation and defer to their judgment.

The Government's witness James S. Renthal in his affidavit (pp. 2-3), testified that, "There are no plans to extend the 2.9 miles of new construction on the Wilcox Peak Timber Sale. The roads constructed for the Wilcox Peak Sale are not to provide additional access to additional timber or other road systems. Every segment of new construction will be barricaded following the Wilcox Peak Sale . . ." (see Renthal's affidavit p. 2-3).

On these issues I conclude the defendants adequately studied the cumulative impacts, and that plaintiff has not met its burden by showing a likelihood of success on the merits.

C. Mitigation

Plaintiff again argues that an EIS should be prepared for the sale because there are significant impacts which have not been assessed and that BLM has not taken sufficient steps to mitigate the impacts to an acceptable level. Plaintiff argues that merely listing the mitigation measures does not provide an adequate excuse for not preparing an EIS.

Defendants' position is that the agency has not failed to take into consideration the environmental consequences of its actions and that sufficient measures of mitigation have been addressed in the NEPA documents which have already been prepared. (Ex. 1A pp. 3-8).

In Robertson, slip op. 87-1703 (May 1, 1989) the issue of mitigation was addressed the Court as follows:

To be sure, one important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. . . . More generally, omission of a reasonably complete discussion of the possible mitigation measures would undermine the "action forcing" function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.

Id. at 17.

The Court held that the agency was not required under NEPA to provide, "[a] fully developed plan detailing what steps will be taken to mitigate adverse environmental impacts. . . ." Id. at 23. Plaintiff seeks to distinguish this case from Robertson, because plaintiff has not alleged that BLM must develop a complete mitigation plan. In addition, plaintiff contends this case is different from Robertson because unlike this case, there the major impacts were off-site, rather than on-site. Robertson slip op. at 23. Plaintiff argues the impacts in this case would be on-site and irreparable.

Concerning mitigation measures and the spotted owl, the Government notes that an E-5 clause has been added to the contract. (see Ex. 105 and Renthal's affidavit at pg. 4). An E-5 stipulation allows the BLM to halt logging until further notice if a Spotted Owl nest is discovered. When an E-5 stipulation is invoked, a restriction applies during the nesting season to the immediate area surrounding the nest. The language of the amendment is as follows:

E-5 The purchaser shall immediately discontinue specified construction or timber harvesting operations upon written notice from the Authorized Officer that a spotted owl has been located in the sale area. Discontinued operations may be resumed upon receipt of written instructions and authorization by the Authorized Officer.

(Ex. 105).

Plaintiff contests the effectiveness of this type of mitigation because there is uncertainty concerning the knowledge about how young owls disperse when the surrounding habitat has been destroyed. (Ex. 2, at 3-30, 1(O), and 1A at 12-14.).

Plaintiff has not met its burden here, however I found this to be a close question.

Has BLM Violated NEPA by "Tiering" to the JKFEIS?

Plaintiff argues BLM has violated NEPA by "tiering" the EA to the Jackson/Klamath FEIS. Plaintiff contends that this procedure inadequately addresses the environmental impacts of the Wilcox Peak Sale. Plaintiff argues the JKFEIS document itself describes the need for further site-specific analysis for projects. (Ex. 2 at pp. 3-12, 3-39, and 1-47).

Defendants argue the practice of "tiering" site-specific environmental assessments to programmatic environmental impact statements is authorized by regulations implementing NEPA, 40 CFR Section 1502.20, 1508.28. Defendants and intervenors emphasize the fact that all other timber sales in the JKSYUs are "tiered" to the JKFEIS; requiring an EIS for this sale might, "[s]et a precedent under which BLM could be required to generate mountains of SEIS's, each of which duplicates work already done." (Intervenor's Supplemental Brief In Opposition to Plaintiff's Motion for Preliminary Injunction at p. 4).

"Tiering" refers to the coverage of general matters in broader environmental impact statements . . . with subsequent narrower statements of environmental analyses . . . incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.

40 CFR Section 1508.28.

Sierra Club v. Block, 576 F. Supp. 959, 965 [14 ELR 20009] (D. Or. 1983), judgment vacated and appeal dismissed as moot (9th Cir. No. 84-3596X). A programmatic EIS may be insufficient regarding site-specific activities, if it does not contain sufficient detail to meet the requirements of NEPA, or where information comes to light after the EIS is prepared. Id. at 964. Cf. Headwaters, Inc. v. BLM, No. 87-1275-PA [18 ELR 21370] (D. Or. May 3, 1988) (challenge to "tiering" of multiple use analysis in EA-FONSI to MFP, denied by Judge Panner). Where the EIS is "sufficiently detailed" and where the circumstances have not changed, requiring another site-specific EIS, would serve no useful purpose. Id. at 964.

Plaintiff argues that an agency may not tier an EA to a programmatic EIS when an area is not homogeneous. Ventling v. Bergland, 479 F. Supp. 174, 179-180 (D.S.D. 1979) (the court held "a programmatic EIS may often be inadequate relative to an individual action," but held in this case a site-specific statement would be duplicate the programmatic EIS).

Though I acknowledge the Jackson/Klamath area is not homogenous I disagree with the plaintiffs' contentions that the EIS fails to provide a sufficiently detailed analysis. The EIS taken together with the EA are sufficient in these regards and it would not be useful to require a new EIS on these issues. The defendant's documents sufficiently address the site-specific issues.

4. Reasonable Alternatives and the No Action Alternative

Plaintiffs argue that defendants have not given adequate consideration to the alternatives including the no action alternative. 40 CFR Sections 1500.2(e), 1501.2(c), 1507.2(d), and 1508.9(3)(b).

[19 ELR 21164]

A detailed statement on alternatives is required by NEPA. 42 U.S.C. Section 4332(2)(C). In State of Cal. v. Block, 690 F.2d 753, 766-767 [13 ELR 20092] (9th Cir. 1982) (review of alternatives is meaningless if only a limited range of outcomes are considered), the court cited NEPA's standards for agencies review of alternatives, "Agencies are also under a mandate to '[s]tudy, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning uses of available resources.'" Id. (citing section 4332(2)(E). The court said, "[t]he touchstone for our inquiry is whether an EIS's selection and discussion of the alternatives fosters informed decision-making and informed public participation." Id. at 767.

The EIS presents five alternatives (Ex. 2. chapter 8), these alternatives cover a range of proposals including a "no action alternative". Public comment was invited and public hearings were held on June 27, 1979. The EA also presented a range of alternatives. (Ex. 1A, at pp. 3, 8-9, and 16). The EA presented a "no action alternative at p. 16 of Ex. 1A. In my view the alternatives presented were adequate under NEPA.

V. BLM's Consideration of Multiple Uses Under the Federal Land Policy and Management Act

Plaintiff alleges BLM is unlawfully managing its public domain (PD) lands for predominantly timber production under the O & C Act,¹⁴ rather than multiple use as FLPMA requires. 43 U.S.C. Sections 1701(a)(7), 1712(c)(1). Plaintiff previously addressed this issue before Judge Panner in Headwaters, Inc. v. BLM, No. 87-1275-PA [18 ELR 21370] (D. Or. May 3, 1988) (appeal pending No. , [19 ELR 21159] argued March, , 1989). Judge Panner denied plaintiff's request for a permanent injunction and declaratory relief on May 3, 1988. As to this issue, I adopt his findings as follows:

The MFP for the Josephine Sustained Yield Unit discussed multiple uses. First, BLM specialists studied numerous resources besides timber in the Josephine Sustained Yield Unit and generated optimal management plans for each individual resource. Second, BM examined all the resources together and generated alternative management plans to minimize the conflicts between the resources. BLM supported each alternative with a rationale and discussion of support needs. Then for each resource, BLM made a multiple use recommendation, suggested alternatives to the recommendation, and discussed the reasons for choosing the recommendation. The analysis considered "all pertinent factors, including, but not limited to, ecology, existing uses, and the relative values of the various resources in particular areas." 43 C.F.R. Section 1725.3-1. I conclude that the multiple use analysis in the MFP is adequate.

Although the PD lands were not discussed separately, they were covered in the broad discussions in the MFP. Therefore neither the PD lands nor the Two T's sale needs a site-specific multiple use analysis. Cf. Sierra Club v. Clark, 774 F.2d at 1411. . . .

. . . . Once BLM did a valid multiple use analysis for PD lands, it could favor timber harvest objectives over other multiple use values. Rocky Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734, 738 [13 ELR 20038] (10th Cir. 1982) (BLM need not permit all resource uses on a given parcel of land). BLM manages two-thirds of the PD lands in the Josephine Sustained Yield Unit for non-timber uses. I find that the multiple use analysis gave equal consideration to all resources in the Josephine Sustained Yield Unit, and that BLM managed the PD lands for a "combination of balanced and diverse resource uses. . . ."

43 U.S.C. Section 1702(c). Headwaters, Inc. v. BLM, No. 87-1275-PA [18 ELR 21370] (D. Or. May 3, 1988) (pages 6-8 of opinion denying preliminary injunction).

In accordance with Judge Panner's opinion I find the multiple use analysis in the MFP is adequate and that a site-specific multiple use analysis for the PD land's in the Wilcox Timber Sale in unnecessary under FLPMA and the Administrative Procedures Act (APA).

VI. BLM's Interpretation of the Oregon and California Railroad Grant Lands Act of 1937

Plaintiff also alleges that BLM has violated the O & C Act and the APA, 5 U.S.C. Section 706(2)(A)-(D) by misinterpreting the O & C Act. Plaintiff contends BLM has not looked to the legislative history of the Act which provides for "multiple uses" and conservation of resources.

Section 1 of the O & C Act provides as follows:

Notwithstanding any provisions in the Act of June 9, 1916 (39 Stat. 218), and February 26, 1919 (40 Stat. 1179), as amended, such portions of the revested Oregon and California Railroad and reconveyed Coos Bay Wagon Road grant lands as are or may hereafter come under the jurisdiction of the Department of the Interior, which have heretofore or may hereafter be classified as timberlands, and powersite lands valuable for timber, shall be managed, except as provided in section 1181c of this title, for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilities.

(43 U.S.C. § 1181a) (emphasis added).

The Ninth Circuit in O'Neal v. United States, 814 F.2d 1285, 1287 (9th Cir. 1987) in a per curiam opinion held:

The provisions of 43 U.S.C. Section 1181a make it clear that the primary use of the revested lands is for timber production to be managed in conformity with the provision of recreational facilities as a secondary use. No duty is established thereby to provide for recreational use.

O'Neal, 814 F.2d at 1287, (involving a claim against the United States by a person injured while engaging in recreation on O & C lands).

The weight of authority on this issue suggests that O & C lands are to be managed with timber production as the dominant use, provided that it is done with a careful look at other values sought to be emphasized by Section .

VII. Defenses

1. Exhaustion of Remedies & Laches

The Government in its answer raised the defenses of failure to exhaust administrative remedies and laches. In view of the result here I need not decide if "exceptional circumstances" are present. See Duncanson-Harrelson Co. v. Director, Etc., 644 F.2d 827 (1981) ("[I]n the absence of exceptional circumstances, a reviewing court will refuse to consider contentions not presented before the administrative proceeding at the appropriate time.").

I reject the defendant's laches defense. Headwaters, Inc. v. BLM, No. 87-1275-PA [18 ELR 21370] (D. Or. May 3, 1988) (p. 4, of order denying preliminary injunction, citing Cf. Citizens and Landowners Against Powerline v. Secretary, United States Dep't of Energy, 683 F.2d 1171, 1175 [13 ELR 20540] (8th Cir. 1982) (laches not favored in environmental cases).

VIII. Conclusion

For reasons given above, I deny plaintiff's motion for preliminary injunction. Though an extensive record has been compiled and evaluated, it was not possible to treat this as a matter submitted on the merits under Rule 65(a)(2), Fed. R. Civ. P. At the time of argument, I inquired of counsel what would yet remain so as to be able to reach and decide the case on the merits. In this regard we are all reminded of the continued admonition by the Circuit to do so wherever possible. Accordingly, a telephone conference will be held this week to discuss scheduling on as fast a track as circumstances will allow.

This was, as to some issues, a close case. The issues were hotly contested, and counsel vigorously argued that it was an important case. Thus I employ a procedure that I have used in the past in similar preliminary injunction cases. I assumed the loser — plaintiff here — will want to appeal as it has a right to do under 28 USC Section 1292(a)(1). And I assume that plaintiff will request a stay under Rule 62(a), Fed. R. Civ. P. I would deny such a motion, but do [19 ELR 21165] so in a conditional fashion. I will continue the TRO in effect for a period of days (until May 31, 1989) so as to allow plaintiff to seek a stay from the Court of Appeals if it wishes to do so.

IT IS SO ORDERED.

[19 ELR 21159]

Burns, J.:

1. I have previously employed the practice of viewing a contested site. I find this practice to be helpful in orienting myself to the maps and the geography of the area. Or. Nat. Res. Council v. U.S. Forest Serv., 659 F. Supp. 1441, 1444-45 [17 ELR 20966] (D. Or. 1987).

2. See the Government's Answer at p. 4, and the Government's Supplemental Authorities at p. 4. This issue was raised in Portland Audubon Soc. v. Hodel, 866 F.2d 302 [19 ELR 20367] (9th Cir. 1989). At this time, Portland Audubon is the only appellate construction of Section 314. The applicability of Portland Audubon to the factual setting in this case is, to say the least unclear. Further, I am aware that my colleague, Judge Frye issued a ruling on Section 314 on May 18, 1989. Judge Marsh is currently preparing to issue a ruling which directly implicates Section 314. Judge Frye's case is Portland Audubon v. Lujan, No. 87-1160-FR (challenge to BLM proposed sales on a statewide basis). In the case before Judge Marsh, Oregon Natural Resource Council v. Mohla, No. 88-1377-MA [19 ELR 21177], a challenge has been awarded by the Forest Service in the Mount Hood National Forest. While the issue in Mohla centers around Section 314, the basis for the challenge does not involve Spotted Owl issues, but rather turns upon definitions of "old-growth" timber as used by the Forest Service and in light of Section 314. Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1989, Pub.L. No. 100-464, 102 Stat. 1825 (1988) (allows BLM to keep its TMP in effect until new plans are completed).

3. See EIS (Ex. 2).

4. "Tiering" refers to the coverage of general matters in broader environmental impact statements . . . with subsequent narrower statements of environmental analyses. . . . 40 CFR Sections 1502.20, 1508.28. Sierra Club v. Block, 576F. Supp. 959, 965 [14 ELR 20009] (D. Or. 1983), judgment vacated and appeal dismissed as moot (9th Cir. No. 84-3596X).

5. BLM is allowed to implement a timber sale before IBLA announces a ruling on the appeal of a sale. 43 C.F.R. Section 5003.3(f).

6. Prior to BLM's signing of the ROD, in 1985 sightings of spotted owls on or near the sale had been reported by adjacent landowners. BLM wildlife biologists visited the site on several occasions but were unsuccessful in locating a nest. After the ROD (Ex. 103) was signed in 1985. Once again a BLM biologist and plaintiff's members made an attempt to locate the owls. This time a spotted owl nest was discovered approximately 100 feet from the border of sale unit 30-7-A. The nest contained juveniles and a pair of adults.

7. See Portland Audubon Soc. v. Hodel, 866 F.2d 302 [19 ELR 20367] (9th Cir. 1989); Portland Audubon v. Hodel, No. 87-1160-FR [18 ELR 21210] (D. Or.); Northern Spotted Owl v. Hodel, No. C88-573Z (D. Wash. filed Nov. 17, 1988); Seattle Audubon Soc. v. Robertson, Nos. C89-160WD, C89-99(T)WD (D. Wash. filed March 15, 1989); Oregon Natural Resources Council v. Mohla, No. 88-1377-MA [19 ELR 21177] (Currently pending before District Judge Malcolm Marsh). United States Fish and Wildlife Service, "The Northern Spotted Owl A Status Review Supplement" April 21, 1989. The Spotted Owl is currently listed as threatened by the State of Oregon, Washington State lists the Spotted Owl as endangered and the Federal Government is currently reviewing its status. (Ex. 22A-D)

8. Defendants argue that I should limit my review of cumulative impacts to issues brought by plaintiff in its initial protest dated July 16, 1987 (Ex. 1C). Defendants contend that after the sale was awarded on October 18, 1988 (Ex. Q) the agency should not be required to review new information. Defendants rely on "the principle against reopening completed actions." It is their position that the awarding of the timber sale effectively terminated the BLM's duty of environmental review.

9. In Marsh, the Court, in footnote 23, commented that the, "[T]he difference between the 'arbitrary and capricious' and 'reasonableness' standards is not of great pragmatic consequence. . . .' As a practical matter, . . . the difference between the 'reasonableness' and arbitrary and capricious 'standards are often difficult to discern' . . . Accordingly, our decision will not require a substantial reworking of long-established NEPA law." Marsh, slip op. at 15 and 16 n.23 (citations omitted).

10. Indeed with the filing Judge Frye's opinion on May 18, 1989 and this opinion today, the "inconsistency" between her finding of arbitrary and capricious action by BLM, regionwide, and my finding of lack of same on a single sale may seem strange to some. But, while I am to make every effort to rule as one of my colleagues, this is a wise policy but not a iron mandate.

11. In Marsh, the plaintiff complained that BLM failed to prepare a site-specific EIS to supplement the existing EIS issued in 1979 for the Jackson-Klamath Sustained Yield Units and another EIS that had been issued in 1985. The Court determined that the new information was of exaggerated importance and the agency acted properly in declining to perform additional supplementation. Marsh, slip op. at 23.

12. U.S. Fish and Wildlife, The Northern Spotted Owl A Status Review Supplement, April 21, 1989, at pp. 3.6-3.14 and 6.8; Department of Wildlife, The Spotted Owl Subcommittee, Interagency Management Guidelines For The Northern Spotted Owl In Washington, Oregon and California, April 15, 1988 at p. 6 and p. A-4 (discussing the effects of isolation and fragmentation on Spotted Owl populations).

13. See Judge Frye's recent opinion for an extensive review of the literature pertaining to studies performed in recent years. Portland Audubon v. Lujan, No. 87-1160-FR. [19 ELR 21230] (opinion issued May 18, 1989) See the following examples of documents filed in this case relating to studies of Northern Spotted Owl populations: Ex. 108, Gutierrez, Habitat Ecology of the Northern Spotted Owl in Northwestern California: Implications For Management, Dept. of Wildlife, Humboldt State University, Arcata, California (1986); Ex. 202, Lande, Demographic Models of the Northern Spotted Owl, Oecologia (Berlin) (1988); Ex. 109, National Audubon Society, Report of the Advisory Panel on the Spotted Owl, (review of articles by Mark Shaffer and Lande, under contract with the Dept. of Interior); and Ex. 201 Affidavit by Russell Lande.

14. BLM manages O & C lands which were revested from the Oregon and California Railroad in the late 1900s. 43 U.S.C. Sections 1181(a)-(f).