PORTLAND AUDUBON SOCIETY V. LUJAN

Portland Audubon Society v. Lujan

No. 87-1160-FR (D. Or. December 21, 1989)

The court holds moot an action challenging the Bureau of Land Management's (BLM's) decision not to supplement its environmental impact statement for timber management plans in Oregon based on new information on the northern spotted owl. The court holds that the case became moot when Congresspassed § 318 of the 1990 Department of the Interior and Related Agencies Appropriations Act, which identifies the instant case by caption and file number and provides that the challenged timber management plan satisfies the relevant environmental laws that form the basis of the plaintiffs' suit. The court adopts the holding in Seattle Audubon Society v. Robertson, 20 ELR 21167, that § 318 is constitutional and specifically bars review during fiscal year 1990. The court next holds that dismissal will not prejudice plaintiffs. To retain jurisdiction to resolve issues after fiscal year 1990 is improper, because the existing BLM decision will have no effect after fiscal year 1990 and will be replaced by a new management decision, which plaintiffs will be free to challenge. Further, access to the federal courts is immediate, the filing of a new complaint is essential to the presentation of any future controversy, and the filing fee is not prohibitive. The court also observes that dismissal without prejudice advances congressional goals and judicial interests, because BLM has long been under a directive of Congress to complete new resource management plans to replace the timber management plans that were used in the 1980s.

[This decision is reversed by the 9th Circuit at 21 ELR 20019. Related decisions are published at 20 ELR 21167, 19 ELR 20366, 20367, 21230, 21378, and 18 ELR 21210.]

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

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

Counsel for Defendant
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, Portland OR 97205
(503) 326-2101

Roger W. Nesbit, Special Ass't U.S. Attorney
500 N.E. Multnomah St., Ste. 607, Portland OR 97232
(503) 231-2137

[21 ELR 20018]

Frye, J.:

Opinion

The matter before the court is defendant's motion to dismiss for mootness (# 397).

Introduction

This is an action for declaratory and injunctive relief filed by plaintiffs, Portland Audubon Society, Headwaters, The Wilderness Society, Sierra Club, Inc., Siskiyou Audubon Society, Central Oregon Audubon Society, Kalmiopsis Audubon Society, Salem Audubon Society, Umpqua Valley Audubon Society, and Natural Resources Defense Council. Plaintiffs have alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Oregon & California Lands Act, 43 U.S.C. § 1181, the Federal Lands Policy and Management Act, 43 U.S.C. § 1701 et seq., the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 553 et seq.

On September 6, 1989, the United States Court of Appeals for the Ninth Circuit affirmed this court's determination that plaintiffs' first claim for relief under NEPA should be dismissed and remanded the action for further determination of the second, third and fourth counts of plaintiffs' complaint. Portland Audubon Society v. Lujan, 884 F.2d 1233 [19 ELR 21378] (9th Cir. 1989).

Plaintiffs thereafter renewed their motion for summary judgment on the second claim under the Oregon & California Lands Act and the fourth claim under the Migratory Bird Treaty Act. Defendant and intervenors oppose plaintiffs' motion for summary judgment on the grounds that Section 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990, Public Law 101-121 (October 23, 1989) (Section 318) requires dismissal of this action.

Plaintiffs respond that Section 318 is unconstitutional, and that even if Section 318 is constitutional, it does not render this action moot, and therefore the court should retain jurisdiction and deny the motion to dismiss.

Analysis

Section 318 provides, in part, as follows:

Without passing on the legal and factual adequacy of . . . the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections . . . (b)(5) of this section on . . . Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for . . . the case Portland Audubon Society et al. v. Manuel Lujan, Jr., Civil No. 87-1160-FR [19 ELR 21230]. The guidelines adopted by subsections . . . (b)(5) of this section shall not be subject to judicial review by any court of the United States.

Section 318(b)(6)(A).

As to the issue of the constitutionality of Section 318(b)(6)(A), this court adopts the reasoning and result of the United States District Court for the Western District of Washington in Seattle Audubon Society v. Robertson, Civil No. 89-160-WD [20 ELR 21167], in its opinion filed November 14, 1989.

Congress has determined that the management of federal lands during the fiscal year 1990 as provided in Section 318 is in compliance with all statutes relied upon by the plaintiffs in this action, [21 ELR 20019] and this court is precluded from determining otherwise. Contrary to plaintiffs' assertions that this court can and should grant declaratory relief prior to the end of fiscal year 1990, this court concludes that it is without jurisdiction to grant any relief to plaintiffs based upon the adequacy of the BLM's timber management plan for fiscal year 1990.

Plaintiffs argue that this court should retain jurisdiction to resolve issues after fiscal year 1990 because there is an identifiable point at which the court will again be asked to consider the legality of the BLM's decisions. Defendant and intervenors argue that this court has no jurisdiction over this action at the present time, and that, in any event, the court should exercise its discretion and dismiss this action without prejudice to plaintiffs to refile a new action challenging any future decisions of the BLM in light of the directives of Congress to the parties in Section 318(c)(1) to attempt to reconcile the interests represented in this litigation.

The administrative proceedings challenged in paragraphs 19 through 24 of the complaint for declaratory and injunctive relief are outdated and by the close of fiscal year 1990 cannot bethe basis for a case or controversy. A moot action is one where "the issues presented are no longer 'live,'" Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam), and this action, as it is pled, has been resolved by Congress and therefore is moot. The Congressional Conference Report, H.R. Conf. Rep. No. 2788, 101st Cong., 1st Sess. 86 (1989), which states that Section 318 should not be "construed to moot future action after fiscal year 1990 in the Portland Audubon Society v. Lujan case against current BLM owl management activities," fails to take into consideration that the case before this court does not involve "future action after fiscal year 1990" because such action has yet to be taken.

The agency action in this case is significantly different from the agency action at issue in Seattle Audubon Society v. Robertson, Civil No. 89-1600-WD, because it has no effect after fiscal year 1990. In Seattle Audubon, the record of decision of the United States Forest Service issued on December 8, 1988 sets the regional standards and guidelines for the protection of the spotted owl in the development of Forest Plans for the United States Forest Service for up to five years. The record of decision, at page 14, states:

At any time, but not later than 5 years from the date of record, this decision shall be reviewed based upon new information from the Spotted Owl Research, Development and Application Program, and any necessary adjustments in management direction to sustain population viability of spotted owls shall be made through amendments for revisions of Forest Plans.

In the case before this court, the current decision of the BLM was not to supplement the existing Environmental Impact Statements (EIS) prior to 1990. The decision of the BLM State Director dated April 10, 1987 not to order a supplemental EIS prior to 1990, at page 2, specifically relies upon the fact that "BLM has already started (in 1986) to develop new land use plans (resource managements plans (RMP)) for these seven [timber management] areas. Those RMP's are currently expected to be completed by October 1990." Unlike the record of decision of the United States Forest Service, the existing BLM decision will have no effect after fiscal year 1990 and will be replaced by a new management decision which the plaintiffs will be free to challenge.

Plaintiffs rely upon a series of cases in which the courts have retained jurisdiction over an environmental dispute pending the completion of a particular construction project. For example, in Environmental Defense Fund v. Armstrong, 487 F.2d 814 [4 ELR 20001] (9th Cir. 1973), the court retained jurisdiction over an eight-year water project to insure compliance with the rules of the National Environmental Protection Agency and to provide adequate protection for the interests of the parties. In Environmental Defense Fund v. Froehlke, 348 F. Supp. 338 [2 ELR 20620] (W.D. Mo. 1972), aff'd, 477 F.2d 1033 [3 ELR 20383] (8th Cir. 1973), the court retained jurisdiction to review the sufficiency of an Environmental Impact Statement (EIS) to be prepared at later stages of a dam project.

It may be proper for a court to retain jurisdiction to resolve environmental disputes that arise during the completion of a particular construction project. However, the pending action presents a different sort of controversy. Plaintiffs ask the court to keep this case open so they can challenge the future management of BLM lands for timber sales. The management of BLM lands for timber sales is an ongoing function of the BLM, not a discrete project the BLM is completing. It is not the function of this court to oversee the BLM's management of federally-owned lands by continuing jurisdiction where no case or controversy exists. If this court were to retain jurisdiction under these circumstances, there could be no end to this action so long as the BLM managed federally-owned lands for timber sales.

Dismissal of this action without prejudice to any party to challenge BLM actions after the 1990 fiscal year will not prejudice plaintiffs. Access to the federal courts is immediate. The requirement that a new complaint be filed is essential to the presentation of any future controversy. The filing fee is not prohibitive.

Dismissal of this action without prejudice to any future filing challenging agency actions after fiscal year 1990 advances congressional goals and judicial interests. The management of federally-owned lands by the Executive Branch is for Congress to oversee and not the courts. The majority of the litigation in this action has been over the efforts of Congress to take the issues that are the subject of this litigation out of the courtroom and to concentrate efforts on the planning for the decade of the 1990's. Congress has directed that the defendant, Secretary of the Interior Manuel Lujan, Jr., name advisory boards on a district-by-district basis who represent the diversity of views in an attempt to provide the agency with recommendations in reviewing prospective timber sales. Section 318(c)(1). The BLM has long been under a directive of Congress to complete new resource management plans to replace the timber management plans that were used in the decade of the 1980's.

This court recognizes that there may be litigation challenging the agency decisions after the 1990 fiscal year. Future federal court litigation should be filed after the parties proceed in an orderly manner through the entire process established to challenge the management of federal lands. Any litigation after fiscal year 1990 will represent new challenges to new efforts and will be more properly managed in a new case.

Defendant's motion to dismiss this action for mootness (#397) is granted without prejudice to the filing of any new action challenging the BLM owl management activities after fiscal year 1990.