ELR Citation: ELR 20873
No(s). 93-927-AS (D. Or. Jan 20, 1994)

The court dismisses claims by timber companies that the U.S. Fish and Wildlife Service (FWS) and the Bureau of Land Management (BLM) violated §7(a) of the Endangered Species Act (ESA) by FWS' late issuance of, and BLM's reliance on, biological opinions on the impact of certain timber sales addressing the critical habitat of the threatened northern spotted owl and marbled murrelet. The court first holds moot plaintiffs' request to compel FWS to issue biological opinions on specific timber sales, because FWS has already issued the opinions. The court also refuses to issue a declaration establishing time limits on the duration of consultation between FWS and BLM and requiring FWS to obtain plaintiffs' consent to extend those deadlines, because it would constitute an advisory opinion. The court holds that the "capable of repetition" exception to mootness does not apply, because plaintiffs will not be subject to the same injury. There is no possibility FWS will again fail to issue the biological opinions for the particular sales at issue. Moreover, that plaintiffs may never receive timber sales contracts because of the delay is not a redressable injury within the zone of interests the consultation timetables were intended to protect. Also, BLM's reduction of sales volume after reviewing the biological opinions follows not from FWS' delay in issuing the opinions, but from the content of the opinions—which is an entirely different set of claims.

Next, the court dismisses with prejudice plaintiffs' claims concerning the validity of the biological opinions, because plaintiffs failed to file the required 60-day notice of intent to sue. Plaintiffs' notice of intent to sue concerning FWS' late issuance of the opinions is not sufficiently broad to cover plaintiffs' claims challenging the opinions themselves and the process by which the opinions were developed. The court rejects the only claim arguably encompassed in that notice—that an opinion is void because FWS authority to act expired with the passage of the consultation deadlines—because it would be inappropriate for the court to invalidate the opinion and allow an agency to proceed with a project that FWS has determined poses a threat to endangered species, merely because FWS was late in issuing its opinion. Moreover, invalidating the opinion would not permit BLM to proceed with the timber sales at issue, because BLM has an independent duty under the ESA to ensure that any action it takes does not jeopardize the protected species or their habitat. Turning to plaintiffs' claims against BLM, the court holds that the dispute over an adjustment in the contract price is within the exclusive jurisdiction of the U.S. Court of Federal Claims. Also, to the extent that the claim is based on contract law, plaintiffs' request for an injunction requiring BLM to immediately award any sale for which a biological opinion has been issued must be filed in the Court of Federal Claims. The court rejects plaintiffs' claims for declaratory relief and compensation for lost sales volume, as plaintiffs failed to identify any legal basis for them. The court grants summary judgment to defendants on plaintiffs' claim under the Administrative Procedure Act that BLM acted arbitrarily and capriciously when it erroneously interpreted its regulations, thereby refusing to consider plaintiffs' proposal for developing reasonable and prudent alternatives. An agency's construction of its own regulations is entitled to substantial deference, and plaintiffs have not shown that BLM interpretation is unreasonable. Finally, the court denies without prejudice plaintiffs' motion to file an amended complaint to add a claim that FWS and BLM violated §318 of the U.S. Department of the Interior and Related Agencies Appropriations Act. Plaintiffs' motion was untimely and alleged an entirely new set of grievances that should be filed as a separate claim.

Counsel for Plaintiffs
Scott W. Horngren, Michael E. Haglund
Haglund & Kirtley
One Main Pl., 101 SW Main St., Ste. 1800, Portland OR 97204
(503) 225-0777

Counsel for Defendants
Thomas Lee, Ass't U.S. Attorney
U.S. Attorney's Office
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 326-2101