Portland Audubon Society v. Lujan

No. 87-1160-FR (D. Or. May 8, 1991)

On a second remand from the U.S. Court of Appeals for the Ninth Circuit, the district court holds that the federal government is entitled to summary judgment on plaintiff environmental groups' claims that the Bureau of Land Management's (BLM's) timber sale program and Forest Resource Policy Statement violate the Oregon & California Lands Act (OCLA) and the Migratory Bird Treaty Act (MBTA), but not on plaintiffs' Federal Lands Policy and Management Act (FLPMA) claim. On April 10, 1987, the BLM director for Oregon decided not to prepare a supplemental environmental impact statement (EIS) concerning old-growth timber sales based on significant new information about the northern spotted owl's ability to survive. The court originally ruled that the BLM decision was arbitrary and violated the National Environmental Policy Act (NEPA), but concluded that § 314 of the 1988 Department of the Interior appropriations bill barred plaintiffs' NEPA claim. The Ninth Circuit affirmed that decision, but reversed and remanded the other claims for further proceedings, ruling that the district court had erred in finding them untimely. On first remand, the district court held that § 318 of the Department of the Interior and Related Agencies Appropriations Act of 1990 required dismissal of the remanded claims. On appeal, the Ninth Circuit concluded that § 318 violates the doctrine of separation of powers and reversed and remanded the case to the district court for further proceedings. The U.S. Supreme Court granted certiorari to hear the federal government's appeal of the Ninth Circuit's ruling that § 318 violates separation of powers principles.

The district court first holds that there is no NEPA claim now before the court since the court previously dismissed plaintiffs' NEPA claim, and the Ninth Circuit affirmed that dismissal, remanding only non-NEPA claims to this court for further proceedings. The Ninth Circuit's dismissal of the NEPA claim is the law of this case.

The court next holds that the Ninth Circuit's decision in Headwaters, Inc. v. Bureau of Land Management, 21 ELR 21378, which held that the OCLA does not place wildlife habitat conservation or conservation of old growth forest on a par with timber production, or that these are even goals of the OCLA, resolves plaintiffs' OCLA claims in this case. Because no disputed facts exist in this case, the court grants defendant summary judgment on the OCLA claim.

However, the court holds that the Headwaters decision has no collateral estoppel effect in this case as to plaintiffs' FLPMA claim because neither party has addressed the factual issues underlying the FLPMA claim. The legal claim resolved in Headwaters, that the Wilcox Peak EIS did not address and consider a recently discovered pair of owls in the vicinity of the proposed sale, is materially different from the plaintiffs' claim in this case, that the BLM failed to analyze the effect of its entire timber sale program on the northern spotted owl. In this case, facts are in dispute whether the Forest Resource Policy Statement of the BLM, which precludes the BLM from withdrawing lands otherwise suitable for commercial logging in order to provide habitat for the northern spotted owl, violates the multiple-use mandate of FLPMA. Thus, summary judgment in favor of defendant is inappropriate.

Finally, the court holds that the MBTA was not intended to include habitat modification or degradation in its prohibitions, and timber management plans that allow logging of the habitat of the northern spotted owl do not violate that act. There would have been no need to enact such additional legislation as the Endangered Species Act to protect the habitat of migratory birds if the MBTA was intended to provide such protections. Although the court grants defendant's motion for summary judgment as to the MBTA claim, the court finds that resolution of this issue is in the interest of all involved in this lengthy litigation and indicates its intent to expedite an immediate appeal.

[Decisions in this lengthy litigation are published at 18 ELR 21210, 19 ELR 20366, 20367, 21230, 21378, 20 ELR 21167, 21 ELR 20018, 20019, and 21040. The federal government's brief on appeal to the U.S. Supreme Court on the claim of separation of powers violations is digested at ELR PEND. LIT. 66155.]

Counsel for Plaintiffs
Victor M. Sher, Todd D. True, Corrie Yackulic
Sierra Club Legal Defense Fund
216 1st Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Michael D. Axline, John E. Bonine, David Atkin
Western Natural Resources Law Clinc
University of Oregon School of Law, Eugen OR 97403
(503) 346-3852

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

[21 ELR 21342]

Frye, J.:

Opinion

The motions pending before the court are:

1) plaintiffs Portland Audubon Society, et al.'s motion for summary judgment and injunctive relief (# 530):

2) defendant Manual Lujan's second motion for summary judgment (# 554);

3) defendant-intervenor Association of 0 & C Counties and Benton County's motion to strike plaintiffs' statement of undisputed facts (# 571);

4) defendant-intervenor Association of 0 & C Counties and Benton County's motion for partial summary judgment (# 585); and

5) defendant-intervenor Northwest Forest Resource Council's motion for summary judgment (# 589).

Background

This is an action for declaratory and injunctive relief brought 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. In the complaint filed on October 19, 1987, plaintiffs alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.; the Oregon & California Lands Act (OCLA), 43 U.S.C. § 1181; the Federal Lands Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701et seq.; the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703 et seq.; and the Administrative Procedures Act (APA), 5 U.S.C. §§ 553 et seq.

In their first claim for relief under the NEPA, plaintiffs challenged the April 10, 1987 decision of the Director of the Bureau of Land Management (BLM) for the State of Oregon not to prepare a Supplemental Environmental Impact Statement prior to the completion of a new Environmental Impact Statement which was expected to be completed by the fall of 1990. This court concluded that there was significant new information about the ability of the northern spotted owl to survive as a species. The court found that the April 10, 1987 decision of the Director of the BLM for the State of Oregon not to prepare a Supplemental Environmental Impact Statement was "arbitrary and capricious and in violation of NEPA," but concluded that Section 314 of Pub. L. 100-446, 102 Stat. 1774, 1825 (1988) barred plaintiffs' NEPA claim. Portland Audubon Soc'y v. Lujan, 712 F. Supp. 1456 [19 ELR 21230] (D. Or. 1989).

On September 6, 1989, the United States Court of Appeals for the Ninth Circuit issued a mandate affirming this court's denial of relief to plaintiffs on their NEPA claim and reversing and remanding the other claims for further proceedings. The Court of Appeals concluded that this court had correctly held that Section 314 bars the NEPA claim of plaintiffs, but concluded that this court erred in holding that the other claims of plaintiffs were untimely. Portland Audubon Soc'y v. Lujan, 884 F.2d 1233 [19 ELR 21378] (9th Cir. 1989).

On remand, plaintiffs moved the court for summary judgment on their claims under the OCLA and the MBTA. Defendant and intervenors moved the court to dismiss the action on the grounds that Section 318 of the Department of Interior and Related Agencies Appropriations Act, 1990, Pub. L. 101-121 (October 23, 1989), required dismissal of these claims. This court granted the motions of defendant and intervenors to dismiss on the grounds that Section 318 required dismissal of these claims. The Court of Appeals for the Ninth Circuit concluded that the first sentence of Section 318 upon which this court relied in dismissing the OCLA and the MBTA claims violated the doctrine of separation of powers and reversed and remanded the case once again to this court for further proceedings consistent with the opinion of the Court of Appeals. Seattle Audubon Soc'y v. Robertson, 914 F.2d 1311 (9th Cir. 1990).

Findings of Fact

The date for the BLM to complete new management plans is now October 1, 1992. The 1987 decision of the Director of the BLM for the State of Oregon not to prepare a Supplemental Environmental Impact Statement only applies to a three-year period ending in fiscal year 1990; therefore, the BLM was required to determine how to proceed for the remaining two year period—fiscal years 1991 and 1992.

On September 25, 1990, Cy Jamison, Director of the BLM, announced that for fiscal years 1991 and 1992 the BLM would follow the conservation strategy of the Interagency Scientific Committee to Address the Conservation of the Northern Spotted Owl (ISC), chaired by Jack Ward Thomas, and would avoid all timber harvesting within any of the 749,000 acres of BLM land denoted as habitat conservation areas in the report of the ISC. The ISC was established under the authority of an agreement in August, 1988 between the National Park Service, the Forest Service, the BLM, and the Fish and Wildlife Service to develop a scientifically credible conservation strategy for the northen [sic] spotted owl. In its report, the ISC concluded that the northern spotted owl was in peril over significant portions of its range because of the loss of habitat from logging and natural disturbances. The ISC proposed a two part conservation strategy.

The first stage of the conservation strategy proposed by the ISC was to protect adequate amounts of appropriately distributed habitat to ensure the long-term survival of the northern spotted owl. The second stage of the conservation strategy of the ISC was to research and monitor the adequacy of the strategy and to seek ways to sustain and produce suitable owl habitat in managed forests.

The only departure of the BLM from the conservation strategy of the ISC report was its decision to apply a rule, known as the "50-11-40 rule", for the management of forest lands between habitat conservation areas on an optional rather than on a mandatory basis. The 50-11-40 rule requires that each quarter township (nine square miles) of federal land have 50% of its forested land composed of trees eleven or more inches in diameter with a 40% "canopy closure" (the percentage of sky covered by trees when looking up). The BLM agreed to observe the 50-11-40 rule for much of its timber harvesting, but not for all of it.

In addition to avoiding timber sales in the habitat conservation areas proposed by the ISC report, the BLM agreed not to conduct [21 ELR 21343] timber sales in any of the 122 management areas identified in its 1983 agreement with the Oregon Department of Fish and Wildlife. In fiscal year 1991-92, the BLM agreed to consult with the United States Fish and Wildlife Sevice on all timber sales which may affect northern spotted owls as required under Section 7 of the Endangered Species Act, 16 U.S.C. § 1535(a)(2).

Applicable Standard

Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P.56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).

Contentions of the Parties

Plaintiffs contend that they are entitled to summary judgment in their favor on their claims for relief under the NEPA and the MBTA. Plaintiffs ask the court to declare the conduct of the BLM to be in violation of the NEPA and the MBTA and to issue a permanent injunction requiring the BLM to immediately commence preparation of an Environmental Impact Statement as required by the NEPA. Plaintiffs seek an injunction prohibiting the sale of timber in the habitat of the northern spotted owl pending completion of such Environmental Impact Statement and pending the promulgation of appropriate regulations by the Secretary of the Interior governing activities under the MBTA.

Defendant, Manual Lujan, Jr., in his official capacity as Secretary of the United States Department of Interior, contends that summary judgment should be entered in his favor as to all claims in this action and that no injunction should be entered. Intervenors, the Association of 0 & C Counties and Benton County and the Northwest Forest Resource Council, contend that summary judgment should be entered in defendant's favor as to all claims in this action.

Analysis and Ruling

National Environmental Protection Act (NEPA)

Plaintiffs argue that this court's holding in Portland Audubon Soc'y v. Lujan, 712 F. Supp. 1456 [19 ELR 21230] (D. Or. 1989), entitles them to relief on their NEPA claim. Plaintiffs point out that the BLM has not addressed in any NEPA document any of the new information about the potential extinction of the northern spotted owl, and therefore this court should order the BLM to prepare an Environmental Impact Statement.

Defendant and intervenors argue that there is no NEPA claim before this court. Defendant and intervenors explain that this court has dismissed the NEPA claim, and the Court of Appeals has affirmed that dismissal, remanding only non-NEPA claims to this court for further proceedings.

In Portland Audubon Soc'y v. Lujan, 884 F.2d 1233, 1242 [19 ELR 21378] (9th Cir. 1989), cert. denied, __ U.S. __, 110 S. Ct. 1470 (1990), the Court of Appeals affirmed this court's dismissal of the NEPA claim. The Court of Appeals reversed and remanded for further proceedings only the non-NEPA claims. There is no NEPA claim now before this court because the dismissal of the NEPA claim by the Court of Appeals is the law of this case.

Oregon & California Lands Act (OCLA)

In their second claim for relief, plaintiffs allege that the failure of the BLM to analyze the effect of its timber sale program on the northern spotted owl and the BLM's Forest Resource Policy Statement which precludes the BLM from withdrawing lands otherwise suitable for commercial logging in order to provide habitat for the northern spotted owl violates the OCLA. Defendant and intervenors argue that any relief sought by plaintiffs is foreclosed by the holding in Headwaters, Inc. v. BLM, 914 F.2d 1174 [20 ELR 21378] (9th Cir. 1990) (petition for rehearing pending).

In Headwaters, the BLM concluded that the impacts of permitting the sale and the logging of the Wilcox Peak timber area were within the impacts anticipated by the regional Environmental Impact Statement; that the Wilcox Peak timber area did not present significant unique environmental concerns; and that, therefore, a site-specific Supplemental Environmental Impact Statement was not required. Headwaters, an environmental group, challenged the decision of the BLM not to prepare a site-specific Supplemental Environmental Impact Statement for the Wilcox Peak timber sale.

On appeal, Headwaters argued that the failure of the BLM to file a site-specific Supplemental Environmental Impact Statement violated the OCLA because the OCLA required the BLM to manage the Wilcox Peak timber area for multiple uses, including wildlife conservation, rather than just for timber production. However, in its ruling,the court explained:

We have previously observed that "the provisions of 43 U.S.C. § 1181 a make it clear that the primary use of the [0 & C Act] lands is for timber production to be managed in conformity with the provision of sustained yield." O'Neal v. United States, 814 F.2d 1285, 1287 (9th Cir. 1987); see also Skoko v. Andrus, 638 F.2d 1154, 1156 (9th Cir.) (Skoko) (The 0 & C Act "provided that most of the 0 & C lands would henceforth be managed for sustained-yield timber production."), cert. denied, 444 U.S. 927, 100 S. Ct. 266, 62 L. Ed. 2d 183 (1979).

While these statements are arguably dicta, we are convinced of their accuracy. 43 U.S.C. § 1181a states that 0 & C Act lands

shall be managed, except as provided in section 1181c of this title [since repealed], for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facil[i]ties.

(Emphasis added.) Headwaters argues that the phrase "forest production" in section 1181a encompasses not merely timber production, but also conservation values such as preserving the habitat of the northern spotted owl. However, Headwater's proposed use—exempting certain timber resources from harvesting to serve as wildlife habitat—is inconsistent with the principle of sustained yield. As the statute clearly envisions sustained yield harvesting of 0 & C Act lands, we conclude that Headwaters's construction is untenable. There is no indication that Congress intended "forest" to mean anything beyond an aggregation of timber resources.

914 F.2d at 1183.

In Headwaters, the Ninth Circuit concluded that the OCLA does not "suggest that wildlife habitat conservation or conservation of old growth forest is a goal on a par with timber production, or indeed that it is a goal of the 0 & C Act at all," contrary to the position of Headwaters that the OCLA was a multiple use statute. Id. at 1184.

The position of plaintiffs in this case is based upon the identical legal issues resolved against their position in the Headwaters case. There are no disputed factual issues in this case. Headwaters resolved the legal issues presented in this case under the OCLA. Headwaters precludes plaintiffs from the relief they seek under their second claim for relief.

Federal Lands Policy and Management Act (FLPMA)

In their third claim for relief, plaintiffs allege that the Forest Resource Policy Statement of the BLM, which precludes the BLM from withdrawing lands otherwise suitable for commercial logging in order to provide habitat for the northern spotted owl, violates the multiple-use mandate of the FLPMA. Defendant and intervenors move the court for judgment in their favor on the ground that the identical legal issue was resolved in the Headwaters case.

Plaintiffs argue here that their claim that the BLM failed to analyze the effect of its entire timber sale program on the northern spotted owl is materially different from the claim in Headwaters, which was that the Wilcox Peak Environmental Impact Statement did not address and consider a recently discovered pair of owls in the [21 ELR 21344] vicinity of the proposed sale. Plaintiffs assert that the decision of the court in Headwaters does not affect this litigation.

The FLPMA prescribes management objectives for lands in the public domain. Under the FLPMA, the BLM must make an inventory of the resource values of land in the public domain and select "that use or combination of uses which will best achieve the objectives of multiple use." 43 C.F.R. § 1725.3 (§ 1725.3-1 (1987)) (1987); 43 U.S.C. § 1711(a). The BLM is directed "'to manage the public lands on a multiple use basis making the most judicious use of the land for some or all of the public land resources and using some land for less than all of the resources, where appropriate.'" Headwaters, 914 F.2d at 1182, quoting Rocky Mountain Oil and Gas Ass'n v. Watt, 696 F.2d 734, 738 [13 ELR 20038] (10th Cir. 1982) (emphasis, citations, and internal quotations omitted).

In Headwaters, the Court of Appeals affirmed the decision of the district court that the multiple use analysis prepared by the BLM pursuant to the FLPMA adequately considered "all pertinent factors, including, but not limited to, ecology, existing uses, and the relative values of the various resources in particular areas." District Court opinion, quoting 43 C.F.R. § 1725.3-1 (1987). The Ninth Circuit concluded that "this finding is supported by the language of the management plan and by testimony presented at trial, and is not clearly erroneous." 914 F.2d at 1182.

The trial court's finding in Headwaters that the BLM had complied with the requirements of the FLPMA was a factual determination based upon the application of the requirements of the FLPMA to the management plan of the BLM. The decision in Headwaters has no collateral estoppel effect upon the court in this case because neither party has addressed the factual issues underlying the FLPMA claim in this case. Defendant's motion for summary judgment on this claim is denied.

Migratory Bird Treaty Act (MBTA)

The MBTA provides, in part, that "unless and except as permitted by regulations . . . it shall be unlawful at any time, by any means or in any manner, to . . . take, capture, kill, [or] attempt to take, capture, or kill. . .any migratory bird." The northern spotted owl is a migratory bird as defined by the regulations. 50 C.F.R. § 10.13. Plaintiffs correctly point out that, in its own documents, the BLM recognizes that the planned timber sales in the habitat of the northern spotted owl will result in the deaths of owls. The issue before the court is whether the deaths of owls, which are caused by the destruction of their habitat, violates the MBTA.

In Seattle Audubon Soc'y v. Robertson, No. C89-160WD (W.D. Wash. March 7, 1991), the court found that the timber management plans of the United States Forest Service did not violate the MBTA by allowing the logging of the habitat of the northern spotted owl. The court explained:

Whether the Forest Service's timber management plan, or timber sales fashioned pursuant toit, violate MBTA depends on the interpretation of "taking." Under the regulations promulgated pursuant to MBTA, to "take" is to "pursue, hunt, shoot, wound, kill, trap, capture, or collect," or to attempt any such act. 50 C.F.R. § 10.12. Under [the Endangered Species Act (ESA)], to "take" is to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). "Harm" under ESA means

an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding or sheltering.

50 C.F.R. § 17.3.

[Seattle Audubon Society] asks the court to engraft ESA's broader definition of a "taking" onto MBTA. It relies upon a Supreme Court case declaring protection of migratory birds to be a "national interest of very nearly the first magnitude," State of Missouri v. Holland, 252 U.S. 416 (1920), and another stating that ESA sheds light upon similar terms in MBTA, Andrus v. Allard, 444 U.S. 51, 62 [9 ELR 20791] (1979).

But the differences between a "taking" under ESA and MBTA are distinct and purposeful. ESA, enacted in 1973, included "harass" and "harm" in the definition. Pub. L. 93-205, § 3, 87 Stat. 885. Congress amended MBTA the following year, and did not modify its prohibitions to include "harm." Pub. L. 93-300, § 1, 88 Stat. 190. It is the "harm" part of the definition that makes "significant habitat modification or degradation" illegal. The court cannot do what Congress, and the Department of Interior, did not do. The statute and regulations intended to preserve an endangered or threatened species differ from those adopted pursuant to international treaties.

Id. at 22-23.

Plaintiffs argue that the conclusion that habitat modification which leads to the deaths of protected birds does not violate the MBTA is contradicted by a number of prior court decisions, including the decision in United States v. FMC Corp., 572 F.2d 902 [8 ELR 20326] (2d Cir. 1978) (killing birds by polluting their natural habitat violated the MBTA), and United States v. Corbin Farm Serv., 444 F. Supp. 510, 532 (E.D. Cal. 1978), aff'd on other grounds, 578 F.2d 259 (9th Cir. 1978) (the poisoning of water that lead to the death of protected birds constitutes a killing in violation of the MBTA).

Plaintiffs argue that the express language of the MBTA that "it shall be unlawful at any time, by any means or in any manner, to . . . kill. . .any migratory bird," 16 U.S.C. § 703 (emphasis added), requires the conclusion that the modification of the habitat of migratory birds that leads to the death of these birds violates the MBTA.

The MBTA applies to all lands, private as well as public, and imposes serious penalties for its violations. Defendant and intervenors argue that the MBTA was intended to protect migratory birds "from . . .killing," but was not intended to protect migratory birds "from.. .killing" as a result of habitat destruction. As defendant and intervenors point out, there would have been no need to enact additional legislation to protect the habitatof migratory birds, such as the Endangered Species Act, if the position of plaintiffs was correct.

This court has considered the facts and the law and agrees with Judge Dwyer's decision in Seattle Audubon v. United States Forest Serv. that the MBTA was not intended to include habitat modification or degradation in its prohibitions. This court finds that defendant and intervenors are entitled to summary judgment on plaintiffs' fourth claim for relief under the MBTA. However, this court further finds that this is an important issue for which an immediate appeal would be in the interest of all involved in this lengthy litigation. There is no just reason for delay in entering judgment on this claim, and the court will, when presented with the appropriate form of judgment under Fed. R. Civ. P. 54(b), enter a judgment so that an immediate appeal may be taken.

Conclusion

1) Plaintiffs' motion for summary judgment and injunctive relief (# 530) is denied.

2) Defendant's second motion for summary judgment (# 554) is granted as to plaintiffs' second and fourth claims for relief and denied as to plaintiffs' third claim for relief.

3) Defendant-intervenor Association of 0 & C Counties and Benton County's motion to strike plaintiffs' statement of undisputed facts (# 571) is denied.

4) Defendant-intervenor Association of 0 & C Counties and Benton County's motion for partial summary judgment (# 585) is granted as to plaintiffs' second and fourth claims for relief and denied as to plaintiffs' third claim for relief.

5) Defendant-intervenor Northwest Forest Resource Council's motion for summary judgment (# 589) is granted as to plaintiffs' second and fourth claims for relief and denied as to plaintiffs' third claim for relief.

Order

IT IS HEREBY ORDERED that:

1) plaintiffs' motion for summary judgment and injunctive relief (# 530) is DENIED;

2) defendant's second motion for summary judgment (# 554) is GRANTED as to plaintiffs' second and fourth claims for relief and DENIED as to plaintiffs' third claim for relief;

3) defendant-intervenor Association of O & C Counties and [21 ELR 21345] Benton County's motion to strike plaintiffs' statement of undisputed facts (# 571) is DENIED;

4) defendant-intervenor Association of O & C Counties and Benton County's motion for partial summary judgment (# 585) is GRANTED as to plaintiffs' second and fourth claims for relief and denied as to plaintiffs' third claim for relief; and

5) defendant-intervenor Northwest Forest Resource Council's motion for summary judgment (# 589) is GRANTED as to plaintiffs' second and fourth claims for relief and DENIED as to plaintiffs' third claim for relief.