Seattle Audubon Society v. Robertson

Nos. C89-160WD; C89-99(T)WD (W.D. Wash. May 11, 1990)

The court enjoins the Forest Service from selling timber in threatened northern spotted owl habitat in an Oregon national forest because the Service has violated the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990. Section 318 establishes one-year timber quotas for 13 Washington and Oregon national forests, mandates that if any fragmentation of ecologically significant old growth (ESOG) is necessary that it be minimized, and sets a short timetable for deciding any challenges to timber sales. The court holds that § 318 of the Act permits summary judgment even though it eliminates temporary restraining orders and preliminary injunctions. The court holds that the Seattle Audubon Society (SAS) has standing to challenge the timber sale. Besides, the Forest Service did not move for summary judgment on the issue of standing, but only raised it as a defense to SAS' motion. The court holds that the standard of review for challenging timber sales under the Act is whether such sale was arbitrary, capricious, or otherwise not in accordance with the law. The court holds that materials outside the administrative record are admissible for limited purposes. The court holds that the requirement in § 318(a)(1) that sales volume be distributed proportionally between Oregon and Washington applies to the states and not to the individual forests. The court holds that § 318(b) imposes two duties on the Forest Service: (1) that it not fragment ESOG except to the extent necessary to meet timber sale levels and (2) that, where fragmentation is necessary, it must minimize it. These requirements mean that the Forest Service must set sales quotas for individual forests and districts to fulfill the multiple purposes of § 318; consider whether another sale or sales in the same district could feasibly be substituted that would avoid, or better minimize, fragmentation of ESOG; and consider whether fragmenting sales could feasibly be offered elsewhere in the same forest. The Forest Service must consider consistency with existing land and resource management plans prepared pursuant to the National Forest Management Act in determining whether sales are feasible. The court finds that the Cowboy timber sale in the Umpqua fragments ESOG and nothing in the administrative record explains why the Forest Service found it to be necessary to meet the sales quota for Oregon forests or for the Umpqua. Therefore, the court enjoins the sale because it is arbitrary and capricious.

Counsel for Plaintiffs
Thomas A. Starrs
Perkins & Cole
1201 Third Ave., Ste. 4000, Seattle WA 98101-3099
(206) 583-8888

Counsel for Defendants
Wells D. Burgess
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 517-2000

Dwyer, J.

[20 ELR 21167]

Order on Cross-Motions for Summary Judgment and Injunction Re Cowboy Sale

I. Introduction

In these consolidated cases plaintiff Seattle Audubon Society ("SAS") has challenged a timber sale, known as the Cowboy sale, advertised by defendant F. Dale Robertson, Chief of the United States Forest Service ("Forest Service"), in the Umpqua National Forest inOregon. SAS has moved for summary judgment on its prayer for an injunction prohibiting the offering of the Cowboy sale "during Fiscal Year 1990 unless and until the Forest Service complies with the requirements of § 318(b)(2)." The Forest Service has moved for summary judgment determining that the sale is lawful and may go forward. Plaintiff Washington Contract Loggers Association ("WCLA") has argued that summary judgment cannot be entered and a trial must be held.

The cross-motions are brought under the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No. 101-121, § 318, 103 Stat. 701, 745-50 (1989) ("§ 318"). Section 318 was enacted on October 23, 1989, as a one-year compromise in the battle over the remaining old growth in the national forests of Washington and Oregon. It establishes timber sale quotas for the Forest Service to meet in fiscal years 1989 and 1990, which also restricting the agency's ability to permit logging of ecologically significant old growth ("ESOG"). The presence of habitat areas of the northern spotted owl "shall be considered an important factor in the identification of ecologically significant old growth forest stands." § 318(b)(2). For ease of reference a copy of § 318 is attached as Appendix A to this order.

The statute provides that

the courts shall have authority to enjoin permanently, order modification of, or void an individual sale if it has been determined by a trial on the merits that the decision to prepare, advertise, offer, award, or operate such sale was arbitrary, capricious or otherwise not in accordance with law.

§ 318(g)(1). Actions filed under this section take precedence over all other civil matters, and the court must issue its final decision within forty-five days from the date the challenge is filed, unless a longer period is needed to satisfy the requirements of the United States Constitution. Id. The forty-five-day schedule is met in this instance.

A hearing on the motions for summary judgment was held on May 2, 1990. SAS and the Forest Service have stipulated that the administrative record is complete for purposes of the motions. Transcript of Oral Argument on Summary Judgment Motions at 3:11-4:2 (May 2, 1990) (Dkt. #382). WCLA has taken no position in that regard. Id. at 4:4-13. All of the briefs, affidavits, and other materials submitted, and the arguments of counsel, have been fully considered.

II. Background

The motions at hand must be understood in light of the history of these cases and the requirements of national forest stewardship.

These public lands are managed by the Forest Service under the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"). Regulations promulgated under the NFMA require, among other things, that the agency manage habitats in the national forests to maintain viable, well-distributed populations of all existing vertebrate species. 36 C.F.R. § 219.19 (1989). Since not every species can be monitored, "indicator species" are observed carefully as signs of general wildlife viability. Id. at § 219.19-(a)(1). The spotted owl is an indicator species. While having these conservation responsibilities, [20 ELR 21168] the Forest Service is also charged with managing the forests to "provide for multiple use and sustained yield of goods and services from the National Forest System in a way that maximizes long term net public benefit. See generally C. Wilkinson & H. Anderson, Land and Resource Planning in the National Forests, 64 Or. L. Rev. 1 (1985).

In recent years logging and development have steadily reduced wildlife habitat in the Pacific Northwest. At the same time many local mills have experienced log shortages. The problem has been worsened by the export every year of billions of board feet of raw logs from state-owned and privately-owned land to buyers overseas, primarily in Japan. The result is an intensified struggle over the future of the national forests, and especially over the old growth remaining. See Order on Motions for Preliminary Injunction at 8-9 (Mar. 15, 1989) (Dkt. #68).

The present cases began in 1989 when SAS and WCLA sued the Forest Service, challenging the legality of an administrative decision adopting standards and guidelines for managing northern spotted owl habitat in the national forests of Washington and Oregon. The administrative decision is set out in a Record of Decision ("ROD"). For opposite reasons, the two sets of plaintiffs challenged the Forest Service's plan under the NFMA and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and their implementing regulations. SAS also relied on the Migratory Birds Treaty Act, 16 U.S.C. § 703, and its implementing regulations.

The court consolidated the two cases, ordered them expedited, and set a final hearing date for the earliest time the parties said they could be ready. That date was June 13, 1989. On March 24, 1989, the court issued a temporary injunction deferring specified timber sales in Washington and Oregon for what then appeared to be a few weeks until the final hearing. In doing so the court found that "the balance of irreparable harm tips sharply in favor of preserving the status quo between now and the final hearing set for June 13, 1989." Order on Motions for Preliminary Injunction and Change of Venue at 2 (Mar. 24, 1989) (Dkt. #97).

On May 11, 1989, the Forest Service moved for a stay of all proceedings in these cases pending completion of a conference process between the Forest Service and the Fish and Wildlife Service ("FWS"). The latter agency had announced on April 25, 1989, its decision — reversing an earlier decision — to list the northern spotted owl as "threatened" under the Endangered Species Act, 16 U.S.C. § 1531 et seq. SAS and WCLA agreed that a stay was warranted. The Forest Service proposed a temporary ban on timber sales containing forty or more acres of spotted owl habitat. This was adopted by order of May 26, 1989. Order on Motion for Stay (May 26, 1989) (Dkt. #173).

The Forest Service had stated its intent to present within thirty days interim measures to protect spotted owl habitat during the FWS listing process. It did not do so. Instead it moved on August 24, 1989, for leave to go forward with eleven timber sales that had been deferred. At this point there was no spotted owl management plan in effect. The court on its own motion lifted the stay and ordered an expedited final hearing in these cases. Order Lifting Stay, etc. (Sept. 12, 1989) (Dkt. #226).

Congress in the meantime was debating legislation which would provide a short-term supply of national forest timber to mills in Washington and Oregon without having the usual type of agency action subject to judicial review. The final result was § 318, which became law on October 23, 1989.

Section 318 establishes one-year timber quotas for thirteen Washington and Oregon national forests, mandates that if any fragmentation of ESOG is necessary it be kept to a minimum, and sets a short timetable for deciding any challenges to sales. In this last respect, § 318 is akin to what this court did before the statute was adopted; as noted, these cases were expedited from the start, a final hearing date was set for the earliest time the parties said they could be ready, a temporary stay was later entered because all parties requested it, and the stay was vacated on the court's own motion when the conference process took longer than predicted.

By order of November 6, 1989, the court rejected an SAS challenge to the constitutionality of § 318, stating:

The preliminary injunction as originally issued, and as later extended at the Forest Service's request, was based upon acts of Congress, especially the National Forest Management Act, 16 U.S.C. § 1600 et seq., the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Administrative Procedures Act, 5 U.S.C. § 705. Congress has the power to modify the application of these statutes in the management of public lands, and in § 318 it has exercised that power by adopting temporary standards and exemptions in regard to national forests in Washington and Oregon. As a result the preliminary injunction in these cases must be and hereby is vacated, and the parties will proceed in accordance with § 318.

Order Determining § 318(b)(6)(A) of Act to Be Constitutional, etc., at 6 (Nov. 6, 1989) (Dkt. #277).

The reasons for the constitutionality holding were set out in a later order. Memorandum Decision Re Constitutionality and Retention of Jurisdiction (Nov. 14, 1989) (Dkt. #278). In the November 14 order the court retained jurisdiction because § 318, while modifying the rules of the controversy for one year, did not end the controversy.

III. Procedural Issues

Four procedural matters must be addressed before the Forest Service's challenged action in regard to the Cowboy sale can be reviewed. These are: whether a summary judgment under Fed. R. Civ. P. 56 may be issued under § 318; whether SAS has standing to challenge the Cowboy sale; what the standard of review is; and what if anything the court may consider outside the administrative record.

A. Summary Judgment

Section 318, while eliminating temporary restraining orders and preliminary injunctions during its one-year life, also provides that

Section 318(g).

The Forest Service and SAS read this passage to mean that summary judgment under Rule 56 may be entered if there are no genuine issues of material fact for trial. WCLA argues that Rule 56 cannot be used because the statute says "determined by a trial on the merits."

WCLA's reading would lead to results that Congress could not possibly have intended. It would require a trial even if the parties agreed, and the court found, that no issues of fact existed. Such a "trial" would be nothing more than a ceremonial gathering, paid for in large part by the public. There is nothing to suggest that Congress meant to require a charade; to the contrary, there is much in § 318 and its legislative history to confirm that Congress meant to permit final decisions on summary judgment.

Section 318(g)(1) provides that "[c]ivil actions filed under this section shall be assigned for hearing at the earliest possible date." (Emphasis added.) The word "hearing" is consistent with motion practice.

The same subsection provides that "the court shall render its final decision." (Emphasis added.) The word "decision," rather than "judgment," implies that Rule 56 may be used.

Section 318(g)(2) provides that the court may "set page limits on briefs and time limits on filing briefs and motions." (Emphasis added.) The plain intent is that motion practice be allowed.

Official committee reports provide "the authoritative expression of legislative intent." In re Kelly, 841 F.2d 908, 912 n.3 (9th Cir. 1988). The conference report on § 318 shows that Congress sought swift decisions on challenges and final resolution on the merits as opposed to preliminary relief. See H.R. Conf. Rep. No. 264, 101st Cong., 1st Sess., reprinted in 135 Cong. Rec. H6385, H6411 (daily ed. Oct. 2, 1989); see also 135 Cong. Rec. S12961 (daily ed. Oct. 7, 1989) (statement of Sen. Adams) ("Our solution was [an] expedited judicial review process of 45 days to handle challenges to the timber program."); 135 Cong. Rec. H6531 (daily ed. Oct. 3, 1989) (statement of Rep. Dicks) ("we can give the individual a right to go to court for a brief period of time, expedite those proceedings, in order to allow a sale that is not lawful, to be blocked").

Summary judgment is commonly used in judicial review of administrative action, and can provide speedy determinations of timber challenges. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). To read § 318(g) to preclude its use would run counter to the legis [20 ELR 21169] lative history. Cf. Lewis v. Hegstrom, 767 F.2d 1371, 1376 (9th Cir. 1985) (courts are bound to "consider time and circumstances surrounding the enactment as well as the object to be accomplished by it").

It follows that summary judgment under Fed. R. Civ. P. 56 may be used, where appropriate, to resolve § 318(g) challenges.

The standard under Rule 56 is well known. Summary judgment may be granted only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In making these determinations the court views the evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in the latter's favor. The non-moving party is not, however, entitled to rest on the pleadings, and must respond to an adequately-supported motion by showing that genuine issues of material fact exist. California Architectural Bldg. Prods. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985).

B. Standing

Litigants seeking relief in the federal courts must show that they have standing, i.e., that they are "entitled to have the court decide the merits" of their dispute. Allen v. Wright, 468 U.S. 737, 750 (1984). To establish standing a plaintiff must allege"personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Id. at 751.

The Forest Service asserts that SAS's complaint does not state a claim which could provide it with standing, and, in the alternative, that there is a genuine issue of material fact as to SAS's standing that precludes summary judgment. SAS has the burden to show that it has standing. FW/PBS, Inc. v. City of Dallas, U.S. , 110 S. Ct. 596, 608, 107 L. Ed. 2d 603 (1990).

The Forest Service argues that SAS's complaint cites only damage to the spotted owl, not to the bird's habitat, as the potential injury. It contends that SAS's challenge to the Cowboy sale relates only to habitat, and that SAS thus lacks standing to challenge the sale.

SAS's complaint asserts a direct injury to its interests from fragmentation of owl habitat. The complaint alleges:

Plaintiffs and their members use old-growth forests, the habitat of northern spotted owls, for birding, wildlife observation . . . and other recreational and educational activities. In addition, the organizations and their members derive scientific, recreational, aesthetic and conversational benefit and enjoyment from the existence in the wild of the northern spotted owl. These interests will be irreparably damaged if defendants permit the destruction by logging of northern spotted owl habitat and thus fail to preserve the owl's viability.

First Amended Complaint at 5-6 (Dkt. # 337).

Plaintiffs also contend that fragmentation of owl habitat is "the major threat" to the spotted owl's continued survival. Id. at 18 (emphasis in original). Thus, plaintiffs claim injury to their interests through the fragmentation that Cowboy will allegedly cause and the resulting harm to the owl.

In United States v. Students Challenging Regulatory Agency Procedures (SCRAP,) 412 U.S. 669 [3 ELR 20536](1973), the Supreme Court held that to have standing to sue an organization must "allege that it or its members would be affected in . . . their activities or pastimes" by the agency action. Id. at 687. The Court held that SCRAP had made a sufficient showing even though the organization's theory of injury was an "attenuated line of causation to the eventual injury of which the appellees complained." Id. at 688 (railroad rate increase would allegedly cause increased use of nonrecyclable commodities, which would result in greater depletion of natural resources and increased litter in areas that SCRAP members enjoyed).

The complaint here satisfies the test for standing set forth in SCRAP. SAS alleges that the Forest Service has violated § 318 in deciding to offer Cowboy for sale, and that this violation will fragment habitat and injure the owls. The link alleged by SAS is stronger than that found sufficient in SCRAP.

In the alternative to its argument based on the pleadings, the Forest Service argues that a genuine issue of material fact exists as to SAS's standing.

The Supreme Court in SCRAP stated:

[I]t is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings. . . . If, as the [defendants] now assert, these allegations were in fact untrue, then the [defendants] should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact.

Id. at 689.

The Forest Service has not moved for summary judgment on this issue, but argues lack of standing as a defense to SAS's motion. SAS's motion necessarily implies a claim of standing to seek summary judgment; the motion may be granted only if the plaintiff's standing is established.

The Forest Service has failed to present any evidence on the subject. SAS, in reply, has provided an affidavit supporting its standing allegations. Declaration of John Talberth (Apr. 25, 1990) (Dkt. # 361).

Argument alone is not enough to create an issue for trial:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed. R. Civ. P. 56(e).

Rule 56(a) allows a claimant such as SAS to move for summary judgment with or without supporting affidavits. SAS's motion is "made and supported as provided" in Rule 56. The Forest Service has not come forward with "specific facts showing that there is a genuine issue for trial" regarding the plaintiffs' standing. In Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986), the Court held:

Rules 56(a) and (b) . . . provide that claimants and defendants, respectively, may move for summary judgment "with or without supporting affidavits" (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with afffidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.

Id. at 323.

The allegations in SAS's complaint, as noted above, are sufficient. The only evidence on standing is the reply declaration filed by SAS, which supports standing. There is no genuine issue of material fact, and SAS is entitled to summary judgment on the standing issue.

C. Standard of Review

Section 318(g) provides that the court may enjoin a timber sale if the Forest Service's decision to "prepare, advertise, offer, award, or operate such sale was arbitrary, capricious or otherwise not in accordance with law." § 318(g)(1). These wordsmust be given the same meaning that they have in the Administrative Procedure Act. Compare § 318(g)(1) with 5 U.S.C. § 706 (court shall set aside agency action found to be "arbitrary, capricious . . . or otherwise not in accordance with law"). See generally United States Dep't of Health & Human Servs. v. Smith, 807 F.2d 122, 124 (8th Cir. 1986) (where Congress uses terms that have accumulated settled meaning under common law, court must infer, unless statute dictates otherwise, that Congress means to incorporate established terms' meaning); Johnson v. First Nat'l Bank, 719 F.2d 270, 277 (8th Cir. 1983) ("absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction"), cert. denied, 465 U.S. 1012 (1984).

The applicable standard of review was summarized in an earlier order in these cases, as follows:

[20 ELR 21170]

The court in reviewing a challenged administrative action determines whether the action is arbitrary, capricious . . . or was otherwise taken without observance of procedures required by law. Friends of Endangered Species v. Jantzen, 760 F.2d 976, 980-81 [15 ELR 20455](9th Cir. 1985); 5 U.S.C. § 706. The standard is narrow and presumes the agency action is valid, Ethyl Corp. v. EPA, 541 F.2d 1, 34 [6 ELR 20267](D.C. Cir.), cert. denied, 426 U.S. 941 (1976), but does not shield the agency action from a "thorough, probing, in-depth review." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 [1 ELR 20110](1971).

Order on Motions for Preliminary Injunction at 4 (Mar. 15, 1989) (Dkt. # 68). The Ninth Circuit has stated:

[T]o determine whether the decision was arbitrary or capricious, the court must consider whether the decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Although this factual inquiry is to be "searching and careful" the ultimate standard of review is narrow. "The court is not empowered to substitute its judgment for that of the agency." Finally, the court must inquire whether the Secretary followed the necessary procedural requirements.

Asarco, Inc. v. EPA, 616 F.2d 1153, 1158 [10 ELR 20433](9th Cir. 1980) (quoting Overton Park, 401 U.S. at 415, 416) (citations omitted).

D. Materials Outside the Administrative Record

This part of the applicable law has also been summarized in an earlier order in these cases, as follows:

The focal point for judicial review is the administrative record already in existence, not a new record made initially in the reviewing court. [Asarco, 616 F.2d] at 1159. However, the court may receive and consider evidence in addition to the administrative record for certain limited purposes. Those purposes, as elaborated in Asarco and other cases, are as follows:

1. To explain the agency's action and the bases for it;

2. To explain technical terms or complex subject matter;

3. To determine whether the agency considered all of the relevant factors;

4. To determine whether the agency's course of inquiry was insufficient or inadequate; and

5. To determine whether the agency fully explicated its course of conduct or grounds of decision.

Order on Forest Service's Motion In Limine, etc., at 3 (Sept. 29, 1989) (Dkt. # 235) (citing Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir. 1988); Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-37 [18 ELR 20497](9th Cir. 1988); Asarco, 616 F.2d at 1160; Friends of the Earth v. Hall, 693 F. Supp. 904, 921 [19 ELR 20298](W.D. Wash. 1988); R. McMillan & T. Peterson, The Permissible Scope of Hearings, Discovery, and Additional Factfinding During Judicial Review of Informal Agency Action, 1982 Duke L.J. 333, 350-66.

The declaration of Robert J. Devlin, Supervisor of the Umpqua National Forest, can be considered for several of the purposes listed above. See, e.g., Friends of the Earth, 693 F. Supp. at 921 (court may consider extra-record evidence that explains the agency's actions and the bases for it). To the extent that Mr. Devlin's statements are post hoc rationalization, they must be viewed critically. See Overton Park, 401 U.S. at 420. Several exhibits submitted with his declaration, including minutes from advisory board meetings and a biologist's report on the Cowboy sale, are clearly part of the administrative record.

SAS has submitted various declarations and other documents. WCLA has filed declarations and an excerpt from deposition testimony. The declarations of Troy Reinhart and Diana Wales, members of the Umpqua National Forest § 318 advisory board, have been considered as helping to explain the agency action. The conflicts between those two declarations need not be resolved for present purposes. Apart from those two declarations, it has not been necessary to rely upon the SAS and WCLA submissions insofar as they go beyond the administrative record. Accordingly, it is not necessary to decide the extent, if any, to which they could be considered.

IV. Substantive Requirements Imposed by § 318

To determine whether the Forest Service has acted in a way that is "arbitrary, capricious or otherwise not in accordance with the law" it is necessary first to determine what requirements § 318 places on the agency.

A. Proportionality

Section 318(a)(1) provides:

The Forest Service shall offer . . . an aggregate timber sale level of seven billion seven hundred million board feet of net merchantable timber from the national forests of Oregon and Washington for fiscal years 1989 and 1990. Such timber sales shall be consistent with existing land and resource management plans or land and resource management plans as approved . . .: Provided, That of the seven billion seven hundred million board foot aggregate timber sale level for fiscal years 1989 and 1990, timber sales offered from the thirteen national forests in Oregon and Washington known to contain northern spotted owls shall meet an aggregate timber sale level for fiscal years 1989 and 1990 of five billion eight hundred million board feet of net merchantable timber: Provided further, That the sales volume shall be distributed in the same proportion between Oregon and Washington national forests known to contain northern spotted owls based on the average sale volume for fiscal years 1986 through 1988.

Thus, for fiscal years 1989 and 1990, timber sales aggregating the specified total "shall be distributed in the same proportion between Oregon and Washington national forests known to contain northern spotted owls based on the average sale volume for fiscal years 1986 through 1988."

The first question is whether this proportionality requirement applies to the states as a whole or to the individual national forests. The plain language quoted — "between Oregon and Washington national forests" — indicates that it applies to the states as a whole. So does the fact that in § 381(f)(5), dealing with another subject, Congress spelled out proportionality by state and by national forest; the latter is not included in § 318(a)(1). See generally United States v. Stauffer Chem. Co., 684 F.2d 1174, 1184 [12 ELR 20810](6th Cir. 1982) (Congress's use of different language is presumed to reflect different meanings, unless legislative history indicates otherwise), aff'd, 464 U.S. 165 [14 ELR 20064](1984).

The conference report also supports the conclusion that subsection (a)(1) establishes sales quotas by state:

The managers have included language to ensure that the fiscal year 1990 sales volume is distributed in the same proportion between the states of Oregon and Washington, and to encourage proportional distribution of sales released through subsection (f)[the subsection providing for release, of previously enjoined sales].

H.R. Conf. Rep. No. 264, 101st Cong., 1st Sess., reprinted in 135 Cong. Rec. H6385, H6411 (daily ed. Oct. 2, 1989)(emphasis added).

Finally, all parties have agreed, in substance, to this interpretation. See Transcript of Oral Argument on Summary Judgment Motions at 7:5-8:7 (May 2, 1990)(Dkt. # 382) (statement of SAS's counsel); id. at 27:20-23 (statement of Forest Service's counsel); WCLA Memorandum in Opposition to SAS's Motion for Summary Judgment at 2 (Apr. 25, 1990) (Dkt. # 354).

Accordingly, the Forest Service under § 318(a)(1) is to offer, for fiscal years 1989 and 1990, timber sales aggregating five billion eight hundred million board feet from the thirteen national forests in Washington and Oregon known to contain northern spotted owls, and this volume is to be distributed between the two states (i.e., between each state's national forests taken as a whole) in proportion to the average sale volume for 1986 through 1988.

B. Substantive Standard in Avoiding or Minimizing ESOG Fragmentation

The next question is how the Forest Service must treat ESOG in meeting the sales quotas.

Section 318(b) provides:

(1) In accordance with subsection (b)(2) of this section, all timber sales from the thirteen national forests in Oregon and Washington known to contain northern spotted owls prepared or offered pursuant to this section shall minimize [20 ELR 21171] fragmentation of the most ecologically significant old growth stands. . . .

(2) To the extent that fragmentation of [ESOG] is necessary to meet the timber sale levels directed by subsection (a)(1) of this section, the Forest Service shall minimize fragmentation in the [ESOG] on a national forest-by-national forest basis. . . .

Section 318(b)(emphasis added).

This statutory language imposes a twofold duty on the agency: First, it must not fragment ESOG except to the extent "necessary to meet the timber sale levels"; second, where such fragmentation is necessary the Forest Service "shall minimize" it.

The foregoing is supported by the legislative history as well as by the wording of § 318. Senator Hatfield stated:

I want the timber industry to know that they can expect to receive a certain volume of wood from the public forest for next year, and equally, I want the environmental community to know that it is our intent, through the use of these old-growth forest definitions, to direct the agency to follow a minimal fragmentation policy in any forests which meet this definition, as much as possible.

135 Cong. Rec. S8796 (daily ed. July 26, 1989)(statement of Sen. Hatfield) (emphasis added).

Senator Gorton stated:

The purpose of this short-term agreement is twofold: It strives to ensure timber to mills on the brink of complete shutdown; and it strives to prevent fragmentation of significant stands of old growth forest. . . .

135 Cong. Rec. S12962 (daily ed. Oct. 7, 1989)(statement of Sen. Gorton) (emphasis added).

Even while vigorously pursuing their differing positions on the summary judgment motions, the parties have substantially agreed with the standard summarized above. See, e.g., Defendants' Memorandum in Opposition to SAS's Motion For Summary Judgment, etc., at 13 (Apr. 19, 1990) (Dkt. # 350); Transcript of Oral Argument on Summary Judgment Motions at 27:20-28:9, 28:20-29:17 (May 2, 1990)(Dkt. # 382)(statements of Forest Service's counsel); id. at 20:1-11 (statement of WCLA's counsel); id. at 5:17-24 (statement of SAS's counsel).

C. Alternatives to Be Considered

The final question in this regard is that of what alternatives the Forest Service must consider in deciding whether fragmentation of ESOG is "necessary" to meet the sales quotas.

As noted above, the proportionality requirement of § 318(a)(1) applies to the national forests of each of the two states in their entirety, not to the thirteen forests individually. It can thus be argued that the Forest Service must fill the sales quota for the Oregon national forests by offering timber sales solely on the basis of their avoidance or minimization of any fragmentation of ESOG, and without regard to which forests they are located in.

However, there is more to the statute than that. Section 318(a)(1) provides that the "timber sales shall be consistent with existing land and resource management plans or land and resource management plans as approved." The plans referred to have been adopted under a regulatory system that has been in place for many years. The plans establish maximum allowable cuts "by years or other periods" in each forest. 36 C.F.R. § 221.3(a)(5) (1989). One of the goals is to "[p]rovide, so far as is feasible, an even flow of national forest timber in order to facilitate the stabilization of communities and of opportunities for employment." 36 C.F.R. § 221.3(a)(3) (1989). In saying that the timber sales "shall be consistent" with such plans, Congress obviously did not mean that they were to be dropped entirely in favor of a statewide quota driven entirely by ESOG considerations.

Other parts of the statute also show that Congress did not intend to overturn the system of managing these lands by national forest. Section 318(b)(2) provides that the Forest Service "shall minimize such fragmentation in the ecologically significant old growth forest stands on a national forest-by-national forest basis." Section 318(c)(1) calls for the appointment, "on a national forest-by-national forest . . . basis," of advisory boards whose responsibility is to "provide recommendations to the Forest Service . . . in reviewing prospective timber sales which shall meet the timber sale levels directed by this section prior to their offer." These boards are functioning at the national forest level.

Further, the legislative history shows an intent to provide temporary supply relief to domestic mills:

In developing the amendment [i.e., § 318], the managers have sought to balance the goals of ensuring a predictable flow of public timber for fiscal year 1990 and protecting the northern spotted owl and significant old growth forest stands.

H.R. Conf. Rep. No. 264, 101st Cong., 1st Sess., reprinted in 135 Cong. Rec. H6385, H6411 (daily ed. Oct. 2, 1989).

I believe that Senator Adams and myself, together with other members of the Northwest congressional delegation, have come up with language in this bill which will guarantee a sufficient supply of wood from the public forests to keep the mills running in our States for the next fiscal year.

135 Cong. Rec. S8796 (daily ed. July 26, 1989)(statement of Sen. Hatfield).

What can be "consistent" with the existing plans, however, may include a variety of alternatives.

The Forest Service is required to avoid fragmenting ESOG except to the extent necessary to meet the statewide sales quotas, and to minimize fragmentation where it is found to be necessary. Measures to achieve this may include adjusting sales quotas for individual forests and districts. Congress intended that the agency would not only review pre-existing sales plans, but also would generate new sales:

While it may be difficult to prepare substantial new sales volumes, the managers encourage the Forest Service to make every possible effort to prepare and offer new sales as part of the fiscal year 1990 program.

H.R. Conf. Rep. No. 264, 101st Cong., 1st Sess., reprinted in 135 Cong. Rec. H3685, H6411 (daily ed. Oct. 2, 1989)(emphasis added).

It is also my intention that the Forest Service, to the extent achievable under current law, prepare a substantial volume of additional fiscal year 1990 sales for consideration by the Service and the advisory board. These sales to be prepared are above and beyond those already prepared by the Forest Service and should be designed for the express purpose of non-fragmentation of the old-growth forest while contributing to the sales volume.

135 Cong. Rec. S8796 (daily ed. July 26, 1989)(statement of Sen. Adams) (emphasis added).

Of key importance is the statutory direction in § 318(b)(2) that "the Forest Service shall minimize such[necessary] fragmentation in the ecologically significant old growth stands on a national forest-by-national forest basis." (Emphasis added.)

This language makes clear that the agency is not entitled to adhere to a rigid, predetermined quota for each district within a national forest without regard to impact on ESOG. If that were done, ESOG fragmentation could easily be maximized rather than minimized, contrary to the intent of Congress.

The statutory mandate requires that sales quotas for individual forests, and for districts, be set to fulfill the multiple purposes of § 318. In determining whether a timber sale that will fragment ESOG is necessary to achieve the sales quota, the Forest Service must consider whether another sale or sales in the same district could feasibly be substituted that would avoid, or would better minimize, any fragmentation of ESOG. It must also consider whether such other sale or sales could feasibly be offered elsewhere in the same forest. These requirements do not imply that the existing management plans are to be disregarded. To the contrary, consistency with the existing plans must be considered in determining whether another sale, inside or outside the same district, is feasible. Whether an alternative sale is consistent with management plans, and whether ESOG fragmentation is necessary in the first place, are matters for the Forest Service to decide in its discretion, so long as its decisions are not arbitrary and capricious and are in compliance with § 318.

V. The Cowboy Sale

Section 318 does not require the protection of all old growth, only of that deemed "ecologically significant" (ESOG). ESOG [20 ELR 21172] makes up only about ten percent of the forested land in the Umpqua National Forest. Declaration of Diana Wales at 3,P5 (May 1, 1990) (Dkt. # 370).

The Cowboy sale comprises 219 acres in the Tiller District of the Umpqua. Declaration of Robert J. Devlin, Exh. H at 2d unnumbered page (Apr. 19, 1990) (Dkt. #353).

The record shows without contradiction that the sale would fragment ESOG. A Forest Service biologist's evaluation dated December 1, 1989, reads in part as follows:

Spotted Owlhabitat [sic] will be reduced by 203 acres, and the existing large block of continuous mature forest will be fragmented.

Administrative activities (timber felling, road construction, movement and noise of vehicles and workers) during critical breeding stages (incubation and feeding of the young) could cause adults to abandon the nest and ultimately abandon the nesting habitat. The critical breeding stages include courtship, nesting, and fledging of young during the period from February 1 through August 31.

Id. at 4th unnumbered page.

The biologist recommended that five units be dropped from the sale to minimize ESOG fragmentation:

To minimize fragmentation of the Last/Boulder area and reduce fragmentation around the Ash II and Ash Valley spotted owl pairs drop units 3, 4, 5, 6 and 7.

Id. at 6th unnumbered page.

The Forest Service agreed at the May 2 hearing that the Cowboy sale contains ESOG. Transcript of Oral Argument on Summary Judgment Motions at 36:14-37:7 (May 2, 1990) (Dkt. # 382).

The Cowboy sale was planned long before § 318 was adopted. The Forest Service submitted it unchanged to the Umpqua National Forest advisory board on January 18, 1990. The board is one of several established under § 318(c)(1). Its seven members provide a valuable public service without compensation or reimbursement of costs. The difficulty of the work is well described in a list of "negatives" expressed by members of the Umpqua board at the meeting of January 18, 1990, and recorded in the board's minutes:

— Harvest levels makes [sic] reasonable ecological/biological choices impossible.

— Conflicting goals. (Spotted Owls, ESOG, Fragmentation)

— Impression of "RUBBER STAMP"

— Congress gave FS an impossible job with time limits.

Id., Exh. K at 4 (minutes of meeting of Umpqua National Forest advisory board at 2-A (Jan. 18, 1990)).

The minutes make clear that the board also mentioned "positives," and that the "negatives" were meant not as a criticism of the Forest Service but as a comment on the conflicting demands of § 318. Most cogent is the first item on the list: "Harvest levels makes [sic] reasonable ecological/biological choices impossible."

The Forest Service presented the Cowboy sale to the Umpqua board on January 18, 1990, and the board voted five to two on that day to recommend that the sale go forward. The Forest Service then advertised it, and the present motions followed.

The administrative record shows that the Forest Service assigned a fiscal year 1990 sale quota to each district in each national forest in Oregon. The quota for the Tiller District was 128,300 MBF. Id., Exh. J at 3d unnumbered page. The quota for the Umpqua as a whole was 357,000 MBF. Id.

The record further shows that the agency then proceeded by authorizing sales in each district to make up that district's quota. In the case of the Tiller District, that included the Cowboy sale.

Objections were raised to the Cowboy sale by members of the advisory board. As far as the record shows, neither before nor after the objections were voiced was any attempt made to locate substitute timber in another district of the Umpqua. The district quota ordered at the outset appears to have determined whether, and to what extent, fragmentation of ESOG was deemed "necessary." See, e.g., Declaration of Robert J. Devlin at 2, P3 (Apr. 19, 1990) (Dkt. # 353); id. at 6-7, P13; id. at 8-9, P14; id., Exh. K passim.

While the record is not entirely clear, this approach raises the possibility that the agency has failed to follow the requirement of § 318(b)(2) that fragmentation be minimized "on a national forest-by-national forest basis."

Nothing in the record provides an adequate explanation of how and why the Forest Service found the Cowboy sale to be necessary to meet the sales quota for the Oregon forests or the quota for the Umpqua. Mr. Devlin's declarations give more information about what the agency has done, but they do not fill the following gaps in the record:

1. There is no showing that the Forest Service, before proceeding with the sale, determined whether a non-fragmenting sale from elsewhere in the Umpqua, outside the Tiller District, could be substituted feasibly and consistently with existing management plans; and

2. There is no adequate description of how and on what basis the Forest Service arrived at the 1989-90 quotas for individual national forests and for districts within national forests. Those quotas underlie the decision to go forward with the Cowboy sale, and they are crucial to the dispute because it appears that the agency has promulgated district quotas and then selected sales to fill them.

VI. Decision Not in Accordance With Law

An administrative agency may not merely cite its own expertise in defending a decision it has made. It must provide an adequate explanation of what it has done. If it fails to do that, its action is deemed arbitrary and capricious. In Motor Vehicle Manufacturers' Association v. State Farm Mutual Insurance Co., 463 U.S. 29, 43 (1983)(citations omitted), the Supreme Court stated:

The scope of review under the "arbitrary and capricious" standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made."

The Court has described as a "simple but fundamental rule of administrative law" that "the agency must set forth the grounds on which it acted." Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 807 (1973); see also Northern Spotted Owl (Strix Occidentalis Caurina) v. Hodel, 716 F. Supp. 479, 482 [19 ELR 20277](W.D. Wash. 1988).

The Forest Service here has failed to set forth adequately the grounds on which it acted in deciding to go forward with the Cowboy sale despite its fragmenting effect on ESOG. In particular, it has failed to provide the information specified in the paragraphs numbered 1 and 2 on page 28, above. There is no genuine issue of material fact in this respect, and summary judgment is appropriate.

The logging of old growth, once done, is irreparable. Because the requirements of § 318 have not been met, at least at this time, as to the Cowboy sale, the sale must be enjoined under § 318(g)(1).

VII. Injunction

For the reasons stated, SAS's motion for summary judgment is granted, and the Forest Service's motion for summary judgment is denied.

The courts "have authority to enjoin permanently, order modification of, or void an individual sale" found to violate the requirements of the one-year statute. § 318(g). A permanent injunction is one issued after a decision on the merits. The scope of an injunction, even on summary judgment, is in the district court's discretion. Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 720 (9th Cir. 1984). However, an injunction must be "limited in time and scope to avoid an unreasonably punitive or nonremedial effect." United States v. Holtzman, 762 F.2d 720, 726 (9th Cir. 1985). The Ninth Circuit has stated the following guidelines for permanent injunctions against administrative action:

[A] Court may exercise its equity powers, or equivalent mandamus powers to compel courts, boards or officers to act in a manner with respect to which they may have jurisdiction, although the court will not assume to control or guide the exercise of their authority.

Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (quoting Virginian Ry. Co. v. System Fed'n No. 40, Ry. Employees Dep't, 300 U.S. 515, 551 (1937)).

For the reasons stated above, the Forest Service is hereby en[20 ELR 21173] joined from advertising, offering, awarding, or operating the Cowboy sale in the Umpqua National Forest until such time as:

1. The agency shows that it has determined that a non-ESOG-fragmenting sale from elsewhere in the Umpqua National Forest, outside the Tiller District, cannot be substituted feasibly and consistently with existing management plans, and provides an adequate explanation of its determination; and

2. The agency provides an adequate description of how and on what basis it arrived at the fiscal year 1989-90 quotas for the individual national forests, and for districts within national forests, that are subject to the requirements of § 318.

The clerk is directed to send copies of this order to all counsel of record.