ELR Citation: ELR 21327
No(s). 90-904-RE (D. Or. Apr 1, 1991)

The court holds that the Forest Service's environmental assessment (EA) and finding of no significant impact (FONSI) prepared pursuant to the National Environmental Policy Act (NEPA) adequately analyzed the cumulative impacts of two timber sales on the northern spotted owl. The court first denies an intervening timber company's motion to dismiss the environmental group's complaint. The environmental group's amended complaint relates back to the filing of the original complaint, so the 15-day statute of limitations in §318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990 (Appropriations Act) did not lapse. The court holds that judicial review is not precluded by §318(b)(6)(A) of the Appropriations Act. Section 318(b)(6)(A) bars only jurisdiction over claims for review of the statutory guidelines contained elsewhere in the Appropriations Act. These guidelines do not preempt NEPA claims. If Congress intended the Appropriations Act to exempt the Forest Service from the procedural requirements of NEPA, it would have done so explicitly. The court holds that the United States is collaterally estopped from arguing that §318(b)(6)(A) bars judicial review. The court holds that the Forest Service sufficiently complied with NEPA by performing an analysis of the cumulative impacts of the sales upon the owl through the EA and FONSI. The court finds that the mitigation measures proposed in the EA show adequate consideration of the spotted owls. There will be no harvesting within a one-half-mile radius of all known pairs and nests; the sale complies with the Fish and Wildlife Service's recommendations; there are no violations of the guidelines of the Spotted Owl Conservation Plan; and a biological evaluation was completed for the area. The court holds that the EA is sufficient as tiered to the Klamath Basin's and McLoughlin's final environmental impact statements (EISs). The EA as tiered to the two EISs demonstrates that the impacts on old growth have been fully analyzed and in the review process. The court holds that it cannot consider post-decision events occurring during judicial review of an agency decision. The Forest Service is not required to consider a notice for a timber sale filed after the decision notice for the sales at issue and after the litigation was filed. Also, the Klamath Basin's and McLoughlin's final EISs adequately take into account the cumulative affects of the newly proposed sale.

Counsel for Plaintiff
Gary K. Kahn
Reeves, Kahn & Eder
910 Oregon National Bldg., 610 S.W. Alder, Portland OR 97205
(503) 227-5144

Counsel for Defendant
Charles H. Turner, U.S. Attorney, District of Oregon; Thomas C. Lee, Ass't U.S. Attorney
888 S.W. Fifth Ave., Ste. 1000, Portland OR 97204-2024
(503) 221-2101