Oregon Natural Resources Council, Inc. v. United States Forest Service

No. 90-904-RE (D. Or. April 1, 1991)

The court holds that the Forest Service's environmental assessment (EA) and finding of no significant impact (FONSI) prepared pursuant to the National Environmental Policy Act (NEPA) adequately analyzed the cumulative impacts of two timber sales on the northern spotted owl. The court first denies an intervening timber company's motion to dismiss the environmental group's complaint. The environmental group's amended complaint relates back to the filing of the original complaint, so the 15 day statute of limitations in § 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990 (Appropriations Act) did not lapse. The court holds that judicial review is not precluded by § 318(b)(6)(A) of the Appropriations Act. Section 318(b)(6)(A) bars only jurisdiction over claims for review of the statutory guidelines contained elsewhere in the Appropriations Act. These guidelines do not preempt NEPA claims. If Congress intended the Appropriations Act to exempt the Forest Service from the procedural requirements of NEPA, it would have done so explicitly. The court holds that the United States is collaterally estopped from arguing that § 318(b)(6)(A) bars judicial review. The court holds that the Forest Service sufficiently complied with NEPA by performing an analysis of the cumulative impacts of the sales upon the owl through the EA and FONSI. The court finds that the mitigation measures proposed in the EA show adequate consideration of the spotted owls. There will be no harvesting within a one-half mile radius of all known pairs and nests; the sale complies with the Fish and Wildlife Service's recommendations; there are no violations of the guidelines of the Spotted Owl Conservation Plan; and a biological evaluation was completed for the area. The court holds that the EA is sufficient as tiered to the Klamath Basin's and McLoughlin's final environmental impact statements (EISs). The EA as tiered to the two EISs demonstrates that the impacts on old growth have been fully analyzed and in the review process. The court holds that it cannot consider post-decision events occurring during judicial review of an agency decision. The Forest Service is not required to consider a notice for a timber sale filed after the decision notice for the sales at issue and after the litigation was filed. Also, the Klamath Basin's and McLoughlin's final EISs adequately take into account the cumulative affects of the newly proposed sale.

Counsel for Plaintiff
Gary K. Kahn
Reeves, Kahn & Eder
910 Oregon National Bldg., 610 S.W. Alder, Portland OR 97205
(503) 227-5144

Counsel for Defendant
Charles H. Turner, U.S. Attorney, District of Oregon; Thomas C. Lee, Ass't U.S. Attorney
888 S.W. Fifth Ave., Ste. 1000, Portland OR 97204-2024
(503) 221-2101

[21 ELR 21327]

Redden, J.:

Opinion

Background

Plaintiff filed an amended complaint alleging that the Forest Service's decision to sell the Scout and Onion timber sales violates the National Environmental Policy Act, 42 U.S.C. § 4321 [ELR Stat. NEPA 001](NEPA). Plaintiff alleges that the Forest Service failed to adequately analyze the cumulative impacts of the sales on the northern spotted owl which was protected by the Endangered Species Act, 16 U.S.C. § 1531 on June 26, 1990, 55 Fed. Reg. 26114 (June 26, 1990).

On December 8, 1988, Forest Service Chief Robertson issued a Record of Decision (ROD) which adopted "FSEIS [final supplemental environmental impact statement] Alternative F" as the standards and guidelines for management of the spotted owl habitat in Washington and Oregon. (See Exh. A attached to plaintiff's summary judgment motion). The ROD states that logging for five more years "will not so fragment the [owl's] habitat as to preclude options to increase the long term level of protection provided in future years should new information show that is necessary." ROD at p.4.

The ROD led to the filing of two suits in the Western District of Washington: Seattle Audubon Society v. Robertson, Civ. No. 89-160WD (SAS) [20 ELR 21167] and Washington Contract Loggers Assoc. v. Robertson, Civ. No. 89-99WD (WCLA). SAS alleged that the guidelines violated three statutes including NEPA. It sought a declaration that the agency's guidelines did not go far enough in conserving habitat for the owl. WCLA was brought by the Washington Contract Loggers Association and alleged that the agency's guidelines went too far.

Early on, Judge Dwyer enjoined the Forest Service from proceeding with the planned sales. The injunction prohibited the Forest Service from selling timber from tracts of the national forests that contained spotted owl habitat. Congress then enacted § 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub.L. No. 101-121, 103 Stat. 701, 745-50 (1989)("§ 318"), which provided a set of spotted owl guidelines to govern Fiscal Year 1990 timber sales. Section 318 provided, "management of areas according to subsections (b)(3) and (b)(5) . . . is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the . . . cases captioned [SAS] and [WCLA]." See § 318(b)(6)(A).

On October 30, 1990, the Ninth Circuit declared the quoted sentence unconstitutional because the provision "directs the court to reach a specific result and make certain factual findings under existing law." See Seattle Audubon Society v. Robertson, 914 F.2d 1311, 1316 (9th Cir. 1990).

At the same time, the spotted owl was listed as threatened under the Endangered Species Act. Northern Spotted Owl v. Hodel, 716 F. Supp. 479 [19 ELR 20277](W.D. Wash. 1988).

After the Ninth Circuit held the sentence from § 318 unconstitutional, the Forest Service vacated its December 8, 1988 ROD for the FSEIS. See 55 Fed. Reg. 40412 (Oct. 3, 1990) (attached as Exh. C to plaintiff's summary judgment motion). Then, SAS and WCLA plaintiffs (now consolidated cases) filed for an injunction against the twelve fiscal year 1990 timber sales for the same reasons advanced earlier: violation of three statutes, including NEPA. The Forest Service argued that those three statutes do not apply to the twelve timber sales because § 318 occupies the field. On December 18, 1990, Judge Dwyer disagreed and ruled for the plaintiffs, enjoining the twelve timber sales. See Opinion attached as Exh. D to plaintiff's summary judgment motion.

The parties have filed three motions: plaintiff's motion for summary judgment, which I deny; defendant-intervenors' motion to dismiss, which I deny; and defendant's motion for summary judgment, which I grant. This case is hereby dismissed.

Standards

1. Summary Judgment Motion

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56). The materiality of a fact is determined by the substantive law on the issue. T.W. Electrical Service v. Pacific Electrical Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable party could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

[21 ELR 21328]

Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.

2. Motion to Dismiss

Under Fed. R. Civ. P. 12(b)(6), dismissal for failure to state a claim is proper only when it appears to a certainty that the plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984), cert. denied, 470 U.S. 1052 (1985). For the purpose of the motion to dismiss, the complaint is liberally construed in favor of the plaintiffs, and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).

Discussion

1. Defendant-Intervenors' Motion to Dismiss

Defendant-Intervenors Columbia Plywood and Burrill Timber Company (intervenors) move to dismiss plaintiff's first amended complaint on the grounds that it was filed beyond the fifteen day jurisdictional limitation in § 318. Intervenors rely on Fed.R.Civ.P.15(c) which states that an amended complaint relates back to the date of the original complaint

whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading. . . .

Intervenors argue that plaintiff's amended complaint, filed on December 5, 1990, arises out of an entirely different "conduct, transaction or occurrence," and therefore should not relate back to the date of the original filing.

Intervenors next argue that the § 318 fifteen day statute of limitations applies and bars plaintiff's amended complaint and that statute should not be equitably tolled. Section 318(g)(1) states that any challenge to a timber sale must be filed in federal district court within fifteen days of the date of initial advertisement of the challenged timber sale. Intervenors argue that even if the fifteen day period is found to be merely a statute of limitations rather than jurisdictional, the equities in this case do not justify tolling the statute.

I find that plaintiff's Amended Complaint "relates back" to the original Complaint, which was filed within the fifteen day statute of limitation. The spotted owl claim arises out of the same "conduct, transaction, or occurrence" as the roadless area claim set forth in the original Complaint. The conduct at issue is the Forest Service's decision to offer the Scout and Onion timber sales. Further, the relief sought is the same, which is the preparation of an EIS because there allegedly were significant environmental consequences which were not considered. The Administrative Record (AR), is the same for both the original and Amended Complaint. Plaintiff did not submit any additional documents for the AR when it filed its Amended Complaint. See Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 362 (9th Cir. 1966) ("if the evidence to support the facts alleged in the Amended Complaint could have been introduced under the former pleading, the amendment is not objectionable").

The Defendant-Intervenors' Motion to Dismiss is denied.

2. Summary Judgment Motions

A. Section 318's Requirements

Plaintiff alleges the Forest Service's decision to proceed with the Scout and Onion sales violates NEPA, relying upon SAS. Plaintiff's reliance on SAS is misplaced. In SAS the Forest Service argued that it need only comply with § 318 and not the other environmental laws. The Ninth Circuit disagreed in Seattle Audubon and held:

section 318 does not, by its plain language, repeal or amend the environmental laws underlying this litigation even though some subsections add additional requirements.

Seattle Audubon, 914 F.2d at 1316.

Plaintiff here alleges that one of those requirements is compliance with NEPA. Judge Dwyer held, "the Court of Appeals' decision . . . requires a ruling now that compliance with the standards of Section 318 does not in itself suffice to legalize the twelve challenged sales." (Dwyer, J.,Opinion at p.15, plaintiff's Exh. D).

Here, however, the Forest Service does not contest Judge Dwyer's holding that they must comply with other appropriate environmental laws (i.e., NEPA) in its timber sales. Instead, the Forest Service argues in its summary judgment motion that: (1) judicial review is precluded by § 318(b)(6)(A), which I reject; and (2) the Forest Service has sufficiently complied with NEPA by performing an analysis of the cumulative impacts of the sales upon the owl through an environmental assessment (EA) and finding no significant impact; and further, the EA is sufficient as tiered to the Klamath Basin's and McLoughlin's Final environmental impact statements (EISs). I agree with the Forest Service's second argument.

B. Preclusion of Judicial Review

The Forest Service argues that the final sentence in § 318 precludes judicial review. The last sentence states:

The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.

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

I find that the last sentence bars only jurisdiction of claims for review of the statutory guidelines contained in §§ 318(b)(3) and (b)(5). This interpretation coincides with Judge Dwyer's interpretation in SAS. Those guidelines lay out management requirements for the Forest Service to follow regarding activities in spotted owl areas. Section 318 does not provide, or require, any analysis of the environmental effects logging will have on the spotted owl. That analysis is required by 40 C.F.R. § 1502.16. The Ninth Circuit clearly stated that § 318 was not intended to preempt NEPA. Seattle Audubon, 914 F.2d at 1316.

Further, if Congress had intended to exempt the Forest Service from complying with NEPA, it could have done so explicitly as it did in the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544o(f)(1); and the Oregon Wilderness Act, 16 U.S.C. § (7)(b)(1), 98 Stat. 278. The standards for spotted owl management in §§ 318(b)(3) and (b)(5) are substantive standards. Conversely, NEPA is a procedural law which mandates analysis and disclosure. Plaintiff concedes that the standards in §§ 318(b)(3) and (b)(5) are not subject to judicial review. However, the analysis of the impacts of management pursuant to those standards must be conducted according to NEPA.

Plaintiff argues that, since preclusion of judicial review based on the last sentence of § 318(b)(6)(A) was recently decided in a different lawsuit involving the same parties, defendant is estopped from arguing for a different result here. Plaintiff cites Judge Dwyer's opinion in SAS holding that § 318(b)(6)(A) does not preclude a NEPA claim. Defendant contends that since the plaintiff here was not the "primary" plaintiff in SAS. the situation is "nonmutual" and may not be used for offensive collateral estoppel. I find there is mutuality here. Plaintiff is a plaintiff in both the SAS case and the case at bar. See Kerr Affidavit, p.1-2 (attached to plaintiff's Reply). Plaintiff is not a "representative" of another entity. It is litigating in its own name on behalf of itself in both cases. Id.; and National Medical Enterprises, Inc. v. Sullivan, 916 F.2d 542, 545 (9th Cir. 1990) (court refused to invoke collateral estoppel because NME was the "representative" of the subsidiaries, not the real party in interest). For mutuality to exist, the second suit must involve parties to the prior suit. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979).

I find that the defendant is collaterally estopped from arguing that § 318(b)(6)(A) bars judicial review of this claim. In SAS, Judge Dwyer specifically examined plaintiffs' challenge that the Forest Service violated the NEPA requirements and held that the Forest Service had in fact failed to comply with NEPA and enjoined the sales. Judge Dwyer found no judicial bar to plaintiff's claim. Therefore, defendant is estopped from raising that argument again in this case.

The final sentence of § 318(b)(6)(A) does not bar judicial review of plaintiff's NEPA claim, it merely bars from judicial review the standards set out in § 318(b)(3) and (b)(5) for spotted owl management. Further, the Forest Service is collaterally estopped from making that argument. Mutuality exists between the plaintiff here and the same plaintiff. In SAS, Judge Dwyer enjoined defendant Forest Service's timber sales because it failed to comply with NEPA, thereby rejecting [21 ELR 21329] defendant's argument that § 318(b)(6)(A) bars judicial review of plaintiff's claim.

I deny the Forest Service's summary judgment motion on the ground that judicial review is precluded by the last sentence in § 318(b)(6)(A). I find no such preclusion.

C. Necessity of EIS Prior to Proceeding With Sales

The Forest Service argues that the EA prepared for the sales correctly finds no significant impact on the spotted owl and therefore complies with NEPA. I agree. The Forest Service further argues that the EA, when tiered to the Klamath Basin FSEIS and the McLoughlin EIS, provides adequate analysis of any cumulative impacts on the owl. Plaintiff responds that those documents are not sufficient and that the Forest Service must prepare an EIS before it significantly impacts critical habitat for a listed threatened species. See Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture, 681 F.2d 1172, 1177 [12 ELR 20968] (9th Cir. 1982) (EIS is necessary if the proposed action may significantly affect the quality of the human environment).

Plaintiff argues that the AR makes it "abundantly clear" that the timber sales will have an impact on spotted owl habitat. Plaintiff quotes from the AR's Record of Decision which admits that "we are harvesting stands with spotted owl habitat characteristics." AR, part D, p.3. In a section of the EA titled "[t]he effect of fragmentation and harvesting in suitable spotted owl habitat outside [spotted owl habitat areas]," the Forest Service acknowledges that the proposed action will enter 960 of 1342 acres of spotted owl habitat outside of administratively designated spotted owl habitat areas. Id. p. 23. The EA admits that fragmentation results in the "reduction of habitat suitability for spotted owls." Id. In a summary of the environmental consequences of the proposed action, the EA notes that "960 acres of suitable habitat will no longer be suitable for 20-50 years." Id.

In considering whether an action may have significant environmental impacts, the Forest Service must consider:

whether the action is related to other actions with individually insignificant but cumulative significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be accorded by breaking [the action] down into small components.

40 C.F.R. § 1508.27(b)(7). Plaintiff argues that the Scout and Onion timber sales, together with the "hundreds" of other sales in owl habitat, will have a significant impact as recognized by the Forest Service in preparing the now withdrawn 1988 FSEIS.

The Forest Service responds that the potential for these timber sales to impact spotted owls has been fully considered in its EA, which concludes that the sales will have no significant impact on the spotted owl.

(1) Standards

The court must determine if the Forest Service's findings are "arbitrary and capricious" within the meaning of 5 U.S.C. § 706(2)(A). See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S. Ct. 1851, 1860 [19 ELR 20749] (1989). In applying this test,

the reviewing 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.

Id., 109 S. Ct. at 1861 (citation omitted). Further, this inquiry must be "searching and careful," but "the ultimate standard of review is a narrow one." Id. The court's duty is to satisfy itself "that the agency has made a reasoned decision based on its evaluation of the significance — or lack of significance — of the new information." Id. Also, the threshold for requiring an EIS under NEPA has been raised by the Supreme Court in Marsh.

The decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains "major Federal actio[n]" to occur, and if the new information if [sic] sufficient to show that the remaining action will "affec[t] the quality of the human environment" in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.

Marsh, 109 S. Ct. at 1859 (emphasis added).

(2) Discussion

The Forest Service argues that plaintiff cannot sustain its burden of proving that the Scout and Onion sales will have a significant impact on spotted owls, or that the sales will have any impacts that have not been adequately analyzed in the NEPA documents prepared by the Forest Service. I agree.

The EA discusses fragmentation of spotted owl habitat through timber harvest. The EA notes that within the Scout/Onion analysis area there are two previously established spotted owl habitat areas (SOHAs) that have been augmented to a size totalling 2,840 acres. AR, part C, p.4. The Scout and Onion sales lie entirely outside the two SOHAs, but the EA recognizes that 960 other acres of suitable spotted owl habitat lie within the harvest units and noted the concern that "some timber management activities may decrease the amount of suitable spotted owl habitat." Id.

The EA states, however, that the spotted owl issue is addressed though "mitigation." "Mitigation measures and timing of harvesting will be used to minimize effects to the resource from these issues." Id. at 5. Specifically,

Concern for Threatened, Endangered, Sensitive and Unique Species. Spotted owls and their nests have been found in and adjacent to the analysis area. Two areas of sale have been included in Spotted Owl Habitat Areas.

Id. The EA provides for two mitigation measures pertaining to owls: (1) the Forest Service's intention to close roads to reduce "open road density to a maximum of 2.5 miles per square mile to improve wildlife habitat effectiveness; and (2) the implementation of the Winema snag policy to protect "cavity dependent wildlife habitat." Id. at 17.

The EA analyzed the effect on spotted owls of harvesting in suitable spotted owl habitat outside of SOHAs:

Current management direction states that harvest in mature and old growth timber will not maintain the desired habitat characteristics suitable to support spotted owls, therefore any harvest activities in these areas or along their boundaries would result in a reduction of habitat. Degree and duration of habitat disruption depends upon treatment type and intensity: treatments that favor multi-layered canopies such as selection and light sanitation cuts will be less disruptive to owl habitat.

Id. at 24.

The EA concludes that "none of the alternatives would have any significant effects due to mitigation measures, design of alternatives and/or location of the analysis area" on threatened or endangered species. Id. at 27. The Ninth Circuit in Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174 [20 ELR 21378] (9th Cir. 1990) (petition for rehearing pending), held that: (1) BLM's decision not to file a site-specific supplemental EIS for timber sale area with regard to spotted owls was not arbitrary or capricious; (2) BLM did not commit a clear error of judgment in concluding that alleged sighting of breeding pair of spotted owls in timber sale area after issuance of EA was not significant new information requiring supplementation of EIS; and (3) BLM did not fail to consider a range of reasonable alternatives to logging at timber sale area. Id.

A site-specific SEIS in Headwaters was held not necessary even when a "breeding pair of northern spotted owls was sighted in the [sale] areas after the issuance of the EA." Id. at 1179. Here, there will be no harvesting within a half mile of all known pairs and nests. (AR, part D, p.3).

The EA also states that the Audubon Society identified ecologically significant spotted owl habitat during project planning. This habitat was included within the expanded SOHAs pursuant to § 318(b)(3),and this area was excluded from the harvest units. See AR, part D, p.1. The Decision Notice states,

Stand treatments in stands with spotted owl habitat characteristics outside of SOHAs were designed to lessen reduction in suitability. There will be no treatment in the Ecologically Significant Old Growth stands identified by the Audubon Society. Scenic quality and wildlife diversity will be maintained due to the distribution of stand [21 ELR 21330] treatments. In some stands harvesting was deferred in order to maintain or provide habitat. . . .

Id. at p.2. The Decision Notice also analyzes alternatives, outlining their key points of advantage or disadvantage. Id. The Decision Notice found "no significant impact," and stated that "even though we are harvesting stands with spotted owl habitat characteristics, this project will not have a negative effect on the viability of the spotted owl" because (1) there will be no harvesting within a one-half mile radius of all known pairs and nests; (2) the sale is in full compliance with the Fish and Wildlife Department's recommendations; (3) there are no violations of the guidelines of the Spotted Owl Conservation Plan; and (4) a biological evaluation was completed for the area and no adverse affects are anticipated on known threatened, endangered or sensitive plants or animals. Id. at p.3.

The Biological Assessment was conducted for the Scout/Onion timber sales by the Fish and Wildlife Department. It examined whether the proposed action was likely to affect any endangered or threatened species. The Biological Assessment specifically addressed the effects of the 709 planned individual timber sales on the spotted owl. See Addendum to AR (separate document). The Assessment concluded that:

implementation of the Section 318 timber sale program deteriorates habitat conditions for the spotted owl, but because of its limited magnitude is not expected to appreciably reduce the likelihood of survival and recovery of the northern spotted owl.

Id. at p. 46.

The Forest Service also consulted with the Fish and Wildlife Service under the Endangered Species Act. The record of this procedure includes a full evaluation by the Fish and Wildlife Service of the effects of the Forest Service's fiscal year 1990 timber sales on the spotted owl. In the attachments to its consultation report, the Fish and Wildlife Service listed the timber sales it regarded as having the greatest potential for impacts to habitat and to the owls themselves. The Scout and Onion sales were not on either list, although both were included in this consultation.

I conclude that the AR supports the Forest Service's finding of "no significant impact." I agree that an EIS is not necessary for the Scout/Onion timber sales.

Tiering the EA to Other EIS'

In addition, I find that the EA can be tiered to both the Klamath Basin Working Circle Timber Resource Plan and final EIS and the McLoughlin Klamath Land Management Plan EIS. See AR, part A. The Klamath Basin Final EIS discusses the management of old growth habitat and its importance to species such as the spotted owl.

The Klamath Basin EIS specifically lists the following objective upon which the Plan is based:

Special Wildlife Issues — Establish a base of old growth stands in each plant community that will be managed or reserved for those biological components that can only exist in what is known as 'old growth stands.' Establish a level of snag management which will retain a desired level of habitat for those biological components that need this kind of habitat.

AR,part A, p.2. The Klamath Basin EIS also notes that the northern spotted owl is present within the Klamath Basin Working Circle and that the owl is listed by the Oregon Department of Fish and Wildlife as endangered or threatened wildlife. See AR,part A, p. 14. The EIS also examines "wildlife habitat" that is dependent upon "old growth areas." Id. at p.26. The EIS provides that old growth areas will be represented in all plant communities "on at least three percent of the commercial forest land base." Id. at 27. The EIS specifically provides that management of those areas "will be intended to provide wildlife habitat." Id. (emphasis added). The EIS states that nine percent of the land will be set aside for old growth. Id. at 28. "Special emphasis will be given to providing such habitat along streams, ridge tops and next to meadows and springs." Id. The EIS also considers the nesting needs of the birds found within this area. Id. at 28-29.

Further, the EIS considered the primary impact on animal populations to be the loss of habitat ("habitat being that combination of food, water and cover present in an an area"). Id. at 60. The EIS notes that four of the alternatives provide for 3% of the CFL in each major timber community to be managed in the "old growth" successional stage. "This will provide habitat for old growth demanding species such as the spotted owl, . . . ." Id. at 61 (emphasis added).

The Decision Notice for the Scout/Onion sales also notes that the two timber sales are in compliance with the McLoughlin Klamath Land Management Plan and its final EIS. The McLoughlin EIS was completed July 23, 1979. It "provides for retention and/or management of some habitat for those wildlife species requiring old-growth timber conditions." AR,part B,p. viii. This EIS recognizes that "each wildlife species has specific needs within its habitat." Id. at p. 35. The EIS continues,

[i]ncreasing attention is being given to management of the Unit's wildlife and habitats in coordination with the State of Oregon Department of Fish and Wildlife. This includes consideration of wildlife needs in relation to hiding and thermal cover, old-growth timber requirements and dead tree (snag) requirements necessary for some species. One recently completed inventory on the east side of the Planning Unit has located existing spotted owls and set the stage for management of essential habitats. . . .

An Area of approximately 400 acres located immediately adjacent to the marshlands contains mature old-growth timber which constitutes important edge effect for numerous species of wildlife. . . .

Id. at 35-36 (emphasis added). Further, the EIS recognizes that the spotted owl (among several other species) was included in the Oregon threatened species list and that "some of these species are found within the Unit." Id. at 39. Later, the EIS notes that, "[s]potted owls have been inventoried in the area." Id. at 46, 48, 53, 54. One of the evaluation criteria used in this EIS was to

provide for a high level of habitat retention for wildlife species requiring old-growth timber conditions and a high level of habitat for cavity nesting wildlife species . . . measured in terms of (1) most acreage allocated as old-growth habitat and (2) highest percentage of potential maximum populations of cavity nesters to be maintained.

Id. at 61. The EIS states that, "wildlife species requiring old-growth timber conditions will be affected as old-growth conversion to young timber stands occurs." Id. at 101. However, the EIS also states that old-growth habitat will not be eliminated but will be managed specifically for wildlife. The EIS realizes that the "location, timing and size" of timber harvest units must be "carefully evaluated," in relation to adjacent habitat conditions to insure a "sound balance between these three wildlife habitat requirements." Id.

The EIS also states that, "identified habitats of threatened or endangered wildlife species will be protected." Id. at 115. The EIS continues,

[a]pproximately 400 acres of land adjacent to the Marsh will be managed to retain old-growth timber character. This area provides habitat for eagles, ospreys, pilliated woodpeckers and other unique species [ie, spotted owls]. The area will be classified as Special, with no programmed harvests scheduled. Timber activities would be conducted only to maintain or improve old-growth timber conditions, . . . .

Id. at 116.

I find that plaintiff has failed to show any violation of NEPA. The EA adequately demonstrates that the impacts to the spotted owl from the two sales are not significant. Further, the EA as tiered to the two EISs demonstrate [sic] that the impacts on old growth habitat have been fully analyzed and accounted for in the review process.

The plaintiff contends that the EA is limited to the 8480 acres comprising the Scout/Onion analysis area and it does not discuss the cumulative impacts of these and other sales on owl habitat. See 40 C.F.R. § 1508.7 (agency must address the cumulative impacts of its "past, present and reasonably foreseeable future actions"). Plaintiff also relies on the fact that the Forest Service originally prepared an 1988 ROD for the FSEIS as an implicit acknowledgment of the obligation to do a cumulative impact analysis.

The Forest Service responds that this court cannot consider postdecision events occurring during judicial review of an agency decision. I agree. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 554-555 [8 ELR 20288] (1978) ("role of a court in reviewing the sufficiency of an [21 ELR 21331] agency's consideration of environmental facts is a limited one, limited both by the time at which the decision was made and by the statute mandating review"). The Decision Notice for Scout/Onion was issued on July 26, 1990. The Decision Notice took into account all relevant information pertaining to the spotted owls up to that time. The Decision Notice was issued after the completion of formal consultation by the Forest Service with the Fish and Wildlife Service on the Fiscal Year 1990 timber sales. The Record of Decision adopting the Winema Forest Plan was signed September 19, 1990, nearly two months after the July 26, 1990 Decision Notice and after this litigation was commenced. I agree that like the October 3, 1990 Federal Register notice, the ROD cannot provide any basis for judicial review in this case. See Blackfeet Tribe v. U.S. Dept. of Labor, 808 F.2d 1355, 1358 (9th Cir. 1987) ("administrative agencies should not be required to reopen their final orders except in the most extraordinary circumstances") (citation omitted).

Further, the EA, when tiered to the Klamath Basin final EIS and the McLoughlin Klamath EIS, adequately takes into account the cumulative affects [sic] the sales may have on the owl and its habitat.

I cannot find that the Forest Service was "arbitrary and capricious" in its finding of no significant impact. See 5 U.S.C. § 7-6(2)(A). I am satisfied that "the agency has made a reasoned decision based on its evaluation of the significance — or lack of significance" of all available information. Marsh, 109 S. Ct. at 1861. In reviewing the EA, I find that defendant's conclusion of no significant impact considered all relevant factors and was not a "clear error of judgment." Id. (quotation omitted). Therefore, defendant's summary judgment motion is granted, I find no disputed issues of material fact. Defendant complied with NEPA by preparing an EA and concluding there are no significant impacts on the owl by the proposed timber sales. Therefore an EIS is not necessary. This action is dismissed.

Conclusion

Plaintiff's summary judgment motion is denied; defendant-intervenors' motion to dismiss is denied; and defendant's summary judgment motion is granted and this case is dismissed.

Dated this 1th day of April, 1991.