ELR Citation: ELR 20755
No(s). 91-6423-HO (D. Or. Dec 22, 1992)

The court holds that the U.S. Fish and Wildlife Service (FWS) is not exempt, expressly or impliedly, from the environmental impact statement's (EIS') requirements of the National Environmental Policy Act (NEPA) in designating northern spotted owl critical habitat under the Endangered Species Act (ESA), and enjoins the FWS from taking any action until an EIS is prepared, but holds that the FWS did not violate ESA §4(b)(2) in its critical habitat designation. The court first holds that the FWS satisfied ESA §4(b)(2) by taking a hard look at the impacts of specifying a particular area as critical habitat and conducting a reasonably thorough discussion of the effects at issue. The FWS adequately considered the relevant economic issues associated with critical habitat designation, particularly employment and revenue loss due to decreased federal timber sales. The court next holds that the county has proven standing based on environmental injury and injury to procedural interests to bring its NEPA claims. The county's claims are within the zone of environmental and procedural interests protected by NEPA, and the county has presented evidence establishing that the designation of critical habitat will profoundly affect the quality of life in the county. Further, although procedural injury alone is insufficient to establish standing, the county has such standing because it has a sufficient geographical nexus to the proposed habitat and the procedures in question are designed to protect the county's interest in the potential environmental and quality of life impacts resulting from the procedural injury in this case.

Addressing the merits of the county's NEPA claims, the court holds that the analysis in Pacific Legal Foundation v. Andrus, 11 ELR 20871, in which the U.S. Court of Appeals for the Sixth Circuit held that NEPA's requirements are not applicable to decisions to list species as endangered, is not controlling in critical habitat decisions. The statutory mandates and procedures applicable to listing threatened or endangered species are distinguishable from those governing the designation of critical habitat. The court holds that to impose NEPA's procedural steps in addition to those that the FWS must take under the ESA is not duplicative or incompatible with the purpose or requirements of the ESA. That the ESA has a similar, although less extensive, impacts review and analysis requirement supports the conclusion that NEPA's process serves the purpose of the ESA. Moreover, under Ninth Circuit case law, environmental-enhancing agencies and action are not exempt from NEPA, because it is only through NEPA-mandated analysis that the true impacts of any agency action can be identified and evaluated. In addition, the ESA's silence regarding NEPA's requirements represents Congress' choice to leave NEPA's requirement determinations dependent on the facts of each particular situation. The court holds that all federal agencies are required to comply with NEPA when considering major federal actions that significantly affect the quality of the human environment, unless there is a clear and unavoidable statutory conflict.

The court concludes that the severe hardship to the county and other areas affected by the designation and the public interest in requiring compliance with environmental laws tips the scales of equity in the county's favor, justifying an injunction until the FWS complies with NEPA's provisions.

Counsel for Plaintiff
Ronald S. Yockim
Cegavske, Johnston & Associates
425 SE Jackson St., Roseburg OR 97470
(503) 673-5528

Counsel for Defendant
Jean E. Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000