ELR Citation: ELR 20931
No(s). 83-1153-SO (D. Or. Jul 2, 1985)

The court rules that loggers lack standing under the National Environmental Policy Act (NEPA) to seek discharge of unprofitable contracts to harvest timber on Forest Service land. The court first holds that it has jurisdiction to hear only one of the loggers' NEPA claims. The claims that a Forest Service violation of NEPA has led to commercial frustration of contractual purpose, mutual mistake, or breach of an implied condition of cooperation are contract claims and under the Tucker Act may not be raised before a district court.However, the court has jurisdiction to consider the statutory claim that enforcement of the contracts will violate NEPA. The court then rules that the loggers lack standing to seek their desired relief under NEPA. The loggers have alleged injury-in-fact, since the Forest Service's failure to comply with NEPA could jeopardize and create uncertainty about the loggers' access to the resources they depend upon for their livelihood. Similarly, they have alleged causation. It is irrelevant that the NEPA violation is unconnected with the loggers' motivation to sue, the unprofitability of the contracts. However, the relief the loggers have requested is unavailable under NEPA. Thus, the claim as stated does not meet the redressability test. Finally, the court notes that the loggers have not proved the merits of their claim that contract enforcement would violate NEPA. Although they have shown that the contracts cover areas close to timber sales that were part of a program proposed in violation of NEPA, the loggers have not introduced any environmental evidence about the sales nor have they established that the sales constitute a major federal action under NEPA. The loggers' arguments that these contracts involve the same subbasins and have similar topography to the invalidated program is not sufficient to prove a NEPA violation.

[The previous opinion of the court in the case appears at 14 ELR 20755.]

Counsel for Plaintiffs
Terence L. Thatcher
National Wildlife Federation
519 SW 3d Ave., Suite 708, Portland OR 97204
(503) 222-1429

Gary D. Meyers
6955 SW Montauk Circle, Lake Oswego OR 97034
(503) 639-3723

Counsel for Defendants
Thomas C. Lee, Robert M. Simmons, Ass't U.S. Attorneys
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

Counsel for Defendants-Intervenors
Phillip D. Chadsey, Richard D. Bach
Stoel, Rives, Boley, Fraser & Wyse
900 SW 5th Ave., Portland OR 97204
(503) 224-3380