Seattle Audubon Society v. Lyons

Nos. C92-479WD et al. (W.D. Wash. June 6, 1994)

The court dissolves a 1992 injunction that prevented the U.S. Forest Service (Forest Service) from auctioning or awarding timber sales to log suitable habitat for the northern spotted owl in Regions 5 and 6 until the Forest Service implemented revised standards and guidelines in compliance with the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA). In issuing the injunction, the court had held that a 1992 record of decision (ROD) and related environmental impact statement (EIS), which would have allowed logging of such habitat, violated NEPA. The court holds that the issue of whether the 1992 ROD and EIS violated the NFMA is moot, because the 1992 plan has since been abandoned. The court holds that NEPA violations identified in the 1992 order are either moot or have been cured by the Forest Service's 1994 issuance of a new ROD and EIS. The court does not rule on the legality of the 1994 plan, however, and notes that the parties are free to challenge it. The court orders the Forest Service and Bureau of Land Management to provide at least 30 days' written notice to all parties before auctioning any new timber sales to log suitable spotted owl habitat.

Counsel for Plaintiffs
Peggy Hennessy
610 SW Alder St., Portland OR 97205
(503) 227-3516

Counsel for Defendants
Steven Odell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[24 ELR 20937]

Dwyer, J.:

Order Dissolving Injunction and Setting Schedule for Summary Judgment Motions

Defendants James Lyons and United States Forest Service (Forest Service)] have moved in Cause No. C92-479WD for an order dissolving the injunction entered in that case on July 2, 1992. The motion is unopposed by Seattle Audubon Society and 10 other plaintiffs. It is also unopposed by defendant-intervenors Washington Contract Loggers Association et al. Opposition has been expressed by plaintiffs Forest Conservation Council and Native Forest Council. All materials filed, and the arguments of counsel heard in open court on May 31, 1994, have been fully considered.

The motion is based upon the April 13, 1994, Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl ("ROD"), adopted by the Secretaries of Agriculture and Interior on April 13, 1994. The ROD was preceded by a Final Supplemental Environmental Impact Statement ("FSEIS") made available to the public in February 1994.

Within the past 19 days, all plaintiffs in the above-entitled cases, now consolidated, have failed new or supplemental complaints in this court challenging the legality of the ROD and FSEIS under various federal statutes. The Secretaries of Agriculture and Interior are among the defendants in these cases.

The existing injunction, and the summary judgment rulings that led to it, are reported in Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1484, and 1494 [22 ELR 21471] (W.D. Wash. 1992), aff'd sub nom. Seattle Audubon Society v. Espy, 998 F.2d 699 [23 ELR 21148] (9th Cir. 1993). The court there found that an earlier Forest Service decision, and a related environmental impact statement, were deficient under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., in three respects: failure to consider the effect of the Endangered Species Committee's grant of an exemption for 13 Bureau of Land Management timber sales; failure to provide a reasonable analysis of, and response to, the draft 1991 owl demographic analysis by Drs. Anderson and Burnham and related criticisms; and, in regard to other species living in the old growth forests, failure to explain the magnitude of the risks and to justify what appeared to be an abandonment of conservation duties imposed by law. See 798 F. Supp. at 1479-83. The Forest Service defendants were enjoined from auctioning or awarding any additional timber sales that would log suitable habitat for the northern spotted owl in Regions Five and Six until revised standards and guidelines in compliance with NEPA and the National Forest Management Act, 16 U.S.C. § 1660 et seq. ("NFMA"), were adopted and in effect. Id. at 1493-94. A later order specified:

The Forest Service is therefore enjoined to prepare a supplemental EIS in compliance with NEPA, curing the defects identified in the May 28, 1992, summary judgment order. . . .

798 F. Supp. at 1499. In rejecting a request for a stay pending appeal, the court stated: "The injunction simply requires a new or amended EIS in compliance with NEPA, curing the three defects specified in the May 28 order." Id. at 1497.

Since the required compliance with NEPA could lead to a different management plan, the issue of whether the 1992 plan violated NFMA was not reached or decided. The May 28 order stated:

Pending further compliance by the Forest Service with NEPA, and the changes that may follow, there is no need to decide the cross-motions for summary judgment under NFMA, which raise the issue whether the agency has arbitrarily and capriciously adopted a plan which, based on present knowledge, would be unlikely to maintain a viable population of owls or other species. Those motions are therefore stricken without prejudice.

Id. at 1484.

Whether the 1992 plan violated NFMA is now moot, since that plan has been dropped.

The 1994 ROD and FSEIS are much different from those presented earlier. Whether they comply with NEPA and NFMA remains to be determined. The question is whether the 1992 injunction should remain in force while that is being litigated.

On a motion to dissolve an injunction, the issue is whether the defendants have properly performed their obligations under the injunction. Sierra Club v. Cargill, 11 F.3d 1545, 1548 [24 ELR 20717] (10th Cir. 1993). The defendants here have shown that the three NEPA violations identified in the 1992 order are either moot or have been cured. The legality of the new plan should be tested in proceedings directed to it, without the presence of an injunction whose purposes has been served. To proceed otherwise would reverse the burden of proof placed by law upon those who challenge the legality of agency action.

For these reasons, the injunction entered herein on July 2, 1992, is hereby dissolved. This order does not constitute a ruling one way or the other on the legality of the 1994 plan. All parties are free to challenge the legality of the new ROD and FSEIS, and to seek preliminary and permanent relief with respect to them.

At the May 31 hearing, government counsel proposed that the Forest Service and Bureau of Land Management be required to provide at least 30 days' advance notice in writing to all parties and counsel in these cases before any new (not previously awarded) timber [24 ELR 20938] sale is auctioned that would log suitable habitat for the spotted owl. That proposal is hereby adopted, and the federal defendants are directed to provide notice accordingly in all such instances, pending further order of the court.

At the May 31 hearing, all counsel who spoke on the subject confirmed that the challenges to the new ROD and FSEIS can be decided on cross-motions for summary judgment. That should be accomplished as soon as possible. The following schedule is hereby adopted: Counsel are directed to confer promptly about any discovery that will be needed, to complete discovery as rapidly as possible, and to file by June 30, 1994, a joint report either advising the court that discovery has been completed or setting out a schedule for its completion in time to accomplish the remaining steps on schedule. All motions for summary judgment will be due on August 4; responses on August 25; and replies on September 7, 1994. Oral argument will be held at 9:00 a.m. on September 12, 1994. Allocation of time at the hearing will be decided later.

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