Oregon Natural Resources Council v. Mohla

No. 88-1377-MA (D. Or. May 25, 1989)

The court holds that a 1988 congressional continuing budget resolution bars an action alleging that a Forest Service timber sale violates the National Environmental Policy Act because the Service failed to consider significant new information regarding old-growth forest ecosystems. Section 314 of the 1988 continuing budget resolution prohibits judicial challenges to existing forest management plans on the sole basis that the plan is outdated, but allows challenges to particular activities carried out under existing plans. The court holds that plaintiff's challenge is to the management plan and thus is precluded. Although plaintiff challenges a single timber sale, the challenge is based solely on new information that makes the current underlying plan outdated, rather than on new information that is site-specific. Plaintiff's new information concerns the nature of old-growth forest ecosystems, an issue that was central to the original timber plan and the subsequent environmental assessment for this timber sale. Plaintiff's own expert stated that the new information on old growth is essential to choosing among alternative land uses and thus is key to larger management decisions rather than site-specific uses. The judicial review prohibition in the continuing budget resolution would be meaningless if plaintiff was allowed to challenge individual timber sales on the basis of past management decisions in current timber plans.

[Decisions in related litigation are published at 19 ELR 21159 and 21230.]

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

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

[19 ELR 21177]

Marsh, J.:

Opinion

This case, brought by the Oregon Natural Resources Council (ONRC) pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., challenges the procedures of the [19 ELR 21178] Forest Service in presenting an area of forest land consisting primarily of old growth timber for harvest. The Forest Service moves for summary judgment on the basis, inter alia, that this court lacks subject matter jurisdiction. Defendant Avison, the contract purchaser of the timber, joins in support of the Forest Service motion. ONRC also moves for summary judgment seeking preliminary or permanent injunctive relief. For the reasons set forth below, the Defendant Forest Service's motion is granted.

Background

The Badger Resell Timber Sale is located on the Estacada Ranger District in the Mount Hood National Forest in Oregon. The sale is 240 acres and the volume of timber in the sale is 14.0 million board feet. The Badger sale is a resale of timber previously sold by the Forest Service to Publishers Paper Company on September 6, 1979. The sale was initially designated as the Three Lynx Sale and the planning for this sale began in 1973. The sale was returned to the Forest Service in March 1986, under the provisions of the Federal Timber Contract Payment Modification Act of 1984, 16 U.S.C. § 618, and reoffered as the Badger Resell in 1988.

The planning history that lead to the sale and resale of Badger is an important factor in the resolution of this case. The Forest Service completed an Environmental Impact Statement (EIS) for the Roaring River and Salmon River Unit Land Use Plan (Land Use Plan) on February 18, 1975. Ex. 102. The Land Use Plan "allocates land use and gives management direction within the specific planning units." Id. at i. The Badger Timber Sale lies entirely within the Roaring River General Forest Unit of the plan. Ex. 118 at 1. The management policy for the General Forest Unit provides:

Timber will be managed to maintain a variety of successional types, high water quality and high timber productivity. A variety of silvicultural methods will be used to reach these objectives.

Ex. 102 at 19.

The Land Use Plan operates as a broad planning guide to direct specific resource management such as that related to timber. The Mount Hood National Forest Service completed an EIS for its' Timber Management Plan on October 26, 1977. Ex. 107. The Timber Management Plan EIS accepts the land use allocations of the Land Use Plan and focuses on the intensity and type of timber management of those lands which have been classified as commercial forest land available for timber production. Ex. 108 at i. The preferred alternative increases the planned level of intensive forest management practices.

The preferred alternative has been selected because it provides for high production levels of timber products coming from lands allocated for that purpose. It also meets existing policies and regulations. This alternative will have certain resource trade-offs as described later, but they are in general, not significantly greater than other alternatives examined and may be mitigated to a certain extent. This alternative provides a reasonable economic return on investment and is near the level of recent funding for the Forest. The Forest has selected intensive management practices which are technically and practically feasible to enhance timber management and production. By doing so, the Forest will maintain harvest levels near the historic harvest level . . .

The Timber Management Plan is centered around the commercial forest land which is the basis for harvest level calculations. Commercial forest land is productive forest land which has not been reserved or deferred.

Id. at 36.

The Forest Service completed an Environmental Assessment (EA) for the original Badger Timber Sale on August 2, 1977 which tiered to the Land Management Plan EIS. Ex. 102.¹ When the sale subsequently returned the EA was reviewed and reapproved. The Decision Notice to sell Badger Resell was approved on March 16, 1988.² The sale was advertised on October 27, 1988 and awarded to Avison Lumber Company on November 29, 1988.

Discussion

The ONRC contends that the Forest Service's decision to sell Badger Resell violates NEPA because the agency failed to consider significant new information regarding old-growth forest ecosystems.³ The EA for Badger Resell was published twelve years ago on August 2, 1977. ONRC contends the the EA is outdated and the Forest Service has a continuing duty to evaluate and incorporate significant new information. ONRC notes that the significant new information was not known at the time the Forest Service completed the Land Use Plan and the Timber Management Plan EISs and the original EA.

ONRC relies upon a declaration of William Ferrell, a forester and forest ecologist, who has a Ph.D. in Forest Soils and Tree Physiology. Dr. Ferrell states that old-growth forests are highly specialized, unique ecosystems and not merely older second growth forests. Declaration of William Ferrell at 6. He asserts that there are major contrasts between old-growth and managed, young-growth stands in structure, species, and patterns of material and energy flows. Id. Dr. Ferrell notes that in the seminal work on old-growth forest ecosystems, Dr. Franklin states: "Old growth forests provide highly specialized habitats and are neither decadent, unproductive ecosystems nor biological deserts." Franklin, J. F., et al., 1981, Ecological Characteristics of Old-Growth Douglas-fir Forests, USDA, PNW-118. Id. at 2. Dr. Ferrell concludes in his review of the Badger Resell environmental documents that the Forest Service did not consider the unique features of old-growth forests in deciding whether to reoffer the Badger Resell sale. Id. at 6.

A federal agency has a continuing duty to gather and evaluate new information relevant to the environmental impact of its' actions after the release of an EIS. Marsh v. Oregon Natural Resources Council, U.S. , No. 87-1704, Slip Op. [19 ELR 20749] (May 1, 1989). The Forest Service typically tiers its' individual timber sale EAs to a resource management plan EIS. The EAs must discuss new circumstances or information "relevant to environmental concerns and bearing on the proposed action or its impact." 40 C.F.R. § 1502.9(c)(1)(ii).

Generally I would examine the evidence before me to determine if there were genuine issues of fact concerning the Forest Service actions in carrying out its continuing duty to consider new information. Such duty would normally be subject to my review. However, in certain circumstances this court's jurisdiction has been statutorily withdrawn.

Section 314 of the 1988 continuing budget resolution provides:

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.

Continuing Resolution, H.J. Res. 395, § 314, Pub. L. No. 100-202, 101 Stat. 1329-254, 133 Cong. Rec. H 12468 (daily ed. Dec. 21, 1987). (This section was reenacted without change as H.R. 4867 and signed by the President on September 27, 1988, and is now found in Pub. L. No. 100-446).

The Forest Service contends that Section 314 bars this litigation as a challenge to the Land Use Plan and Timber Management Plan of the Mount Hood National Forest. The Forest Service argues that the goal of plaintiff's lawsuit is to prevent the Forest Service from managing timber resources under the existing Timber Management [19 ELR 21179] Plan because the existing Timber Management Plan does not incorporate information relating to old growth ecosystems made available subsequent to the adoption of the plan. ONRC contends Section 314 does not apply because its claims relate to a particular sale and not the underlying management plans.

It is well settled that in interpreting a statute the court must consider each provision in context with the statute as a whole. BV Engineering v. Univ. of Ca., Los Angeles, 858 F.2d 1394, 1398 (9th Cir. 1988). I must give meaning to Section 314 as a whole and avoid rendering any part of the statute inoperative or insignificant. See Rockbridge v. Lincoln, 449 F.2d 567, 571 (9th Cir. 1971) citing Richards v. United States, 369 U.S. 1 (1962).

The first part of Section 314 describes the Forest Service's affirmative and continuing duty to prepare and complete new forest plans in accordance with the National Forest Management Act, 16 U.S.C. § 1600. It also allows the Forest Service to continue to manage the national forests under the current resource management plans until the new plans are completed. Thus the statute indicates that there is an area where the Forest Service may continue to manage resources with the current plans, even when these plans are outdated. This is supported by the language in Section 314 which precludes judicial review when the sole issue relates to new information which could contradict a current plan or render it outdated. At the same time, it is clear that judicial review is not precluded when a particular activity that is site specific is challenged. Between these two obvious mandates of the statute lies an area of uncertainty which results from what the Ninth Circuit Court of Appeals referred to as the "extraordinary language" of the statute. Portland Audubon Society v. Hodel, 866 F.2d 302, 304 [19 ELR 20367] (9th Cir. 1989).

In Portland Audubon the court of appeals was faced with an argument similar to that made in this case. The difference lies in the particular language relating to the Bureau of Land Management, i.e. "that there shall be no challenge . . . solely on the basis that the plan does not incorporate information subsequent to the completion of the existing plan", and the critical language relating to either the Forest Service alone or to both the Forest Service and the Bureau of Land Management, i.e. "that there shall be no challenges to any existing plan on the sole basis that the plan in its entirety is outdated".

In this case, as was the case in Portland Audubon, the plaintiff contends that the challenge is to a particular activity, that is, the particular sale. On the other hand, the Forest Service contends that to designate an individual sale as a particular activity is to avoid the prohibition against the underlying plan.

As the court stated in Portland Audubon:

The sales are indeed separate transactions. They are also part of an existing plan of disposal of federal timber in the region. Thereby hangs the problem in this case.

Portland Audubon Society, 866 F.2d at 305. The court then focused on the term "solely" to determine what the statute prohibited irrespective of what the parties agreed was the legislative sponsor's intent. In reversing the trial court, the Ninth Circuit found several bases for the challenge and ultimately remanded the case requiring the "district court to decide how to apply the law to particular sales." Id. at 307.

Upon re-examination of these questions on consideration of summary judgment the District Court found an overall challenge to the plan rather than site specific particular activity in each sale. See Portland Audubon Society v. Hodel, No. 87-1160-FR, slip op. at 72 [19 ELR 20366] (D. Or. May 18, 1989).

The language in the Portland Audubon opinions is instructive in that it highlights the difficulty in statutory construction in this case. The courts attention can easily be distracted by the two separate references to "particular activity" and lose sight of the concern for a challenge to an existing plan "on the sole basis" that it is outdated. As stated above, a particular activity which gives rise to a challenge which relates solely to the plan is not subject to judicial review. However, a particular activity which gives rise to a challenge which is site specific is subject to judicial review. Therefore the categorization of an agency action as a particular activity, such as a single timber sale, is not determinative of whether or not it is subject to judicial review. Rather the inquiry must be whether the new information which is the subject of the challenge relates solely to the plan or whether the information relates to a site specific activity.

In this case, ONRC challenges the decision of the Forest Service not to issue an EIS or alternatively that the supplemental EA on the Badger Timber Sale was inadequate. ONRC's challenge is to a single timber sale. However, this does end the inquiry. I must determine whether the challenge to this timber sale is solely based of new information which makes the current underlying plan outdated or whether the challenge is based on new information which is site specific in nature.

ONRC characterizes this action as an action brought "on the sole basis of new information concerning old growth forests." Tr. at 39. While there are allegations in ONRC's first amended complaint and in the briefing about the spotted owl, ONRC states that this action concerns the Forest Service's failure to consider new information about old growth. Id.⁴ ONRC states that the Forest Service decided to log the Badger Resell because the old growth timber is decadent and should be replaced with a thrifty new stand of trees. Ex. 118 at 13. ONRC further contends that in failing to consider the new information presented by Dr. Ferrell concerning old growth forest ecosystems in its' decision to harvest this area, the Forest Service violated the requirements of NEPA. Tr. at 39-40.

The Forest Service made the timber management decision to convert old growth forests into even aged stands in the Timber Management Plan. Ex. 108. The summary of the EA follows from the prior planning decisions in the Timber Management Plan. The Forest Service characterizes the timber in the sale area as primarily decadent old growth Douglas fir and Western Hemlock-true firs. Ex. 118 at 2. The EA states:

The majority of the stand is presently at the point where it is stagnated and defect is increasing, hence, a slow loss in net volume. Removing this decadent old growth and converting to intensive management will more effectively utilize nutrients and growing space for a new tree crop.

Id. at 13. It is recognized that "under intensive management the stand will never return to its present old growth status." Id. at 16. Therefore, the Badger Resell EA reflects the timber management decisions made in the Timber Management Plan EIS.

Dr. Ferrell's states that the new information concerning old growth "is essential to choosing between alternative land management uses of the Badger Resell area." Declaration of William Ferrell at 3. Thus, ONRC's own expert confirms that it is challenging the larger management decision and not site specific information.

ONRC's complaint contains the precise type of challenge that Congress intended to limit in Section 314. Section 314 would be meaningless if ONRC was allowed to challenge individual timber sales on the basis of past management decisions made in the current plan. I find that Congress intended to prohibit judicial review of challenges to particular timber sales when the basis of that challenge is that the Forest Service did not consider new information which relates solely to the plan. If I allowed ONRC to challenge this sale on the basis of new information concerning old growth then I would in effect be allowing ONRC to challenge the decisions made in the Timber Management Plan. The practical effect would be that ONRC could challenge any Forest Service timber sale EA which prescribed for logging the old growth in accordance with the current plans. I find that this challenge is actually an attack on the Timber Management Plan on the basis that the plan is outdated. Therefore the challenge is precluded from judicial review.

Accordingly, I conclude that Section 314 operates to preclude ONRC's action. The Defendant Forest Service's motion for summary judgment [#22] is granted on the basis that this court lacks subject matter jurisdiction.

Order Granting Motion for Summary Judgment

I conclude that Section 314 operates to preclude ONRC's action. The Defendant Forest Service's motion for summary judgment [#22] is granted on the basis that this court lacks subject matter jurisdiction.

IT IS SO ORDERED.

1. The Forest Service completed the Draft EIS for the Timber Management Plan on August 5, 1976. The Final EIS was not completed until after the original EA.

2. The Badger Resell EA tiered to the Land Management Plan EIS as well as the Timber Management Plan Final EIS.

3. The Forest Service admits that the Badger Resell "consists primarily of decadent old growth Douglas-fir and western hemlock-true firs." Defendant's Exhibit 118 at 2.

4. [THE COURT] What I read in your memoranda, your exhibits, is it's the plaintiff's position that there is entirely new scientific view of old growth. Now, again I want to try and point this particular case that's before me, its relationship to the other cases we'll get to. But let's just stay right on this case. There are allegations in your first amended complaint and there are discussions in all your briefs about the spotted owl. Is the spotted owl an issue upon which the plaintiff is contending in this case?

MS. YACKULIC: It's an example of one of the species that's dependent on old growth. But our concern is that the Forest Service has to consider the old-growth information.

THE COURT: All right. Is your attack here on the consideration of old growth, period?

MS. YACKULIC: Yes.

Tr. at 39.