ELR Citation: ELR 21341
No(s). 87-1160-FR (D. Or. May 8, 1991)

On a second remand from the U.S. Court of Appeals for the Ninth Circuit, the district court holds that the federal government is entitled to summary judgment on plaintiff environmental groups' claims that the Bureau of Land Management's (BLM's) timber sale program and Forest Resource Policy Statement violate the Oregon & California Lands Act (OCLA) and the Migratory Bird Treaty Act (MBTA), but not on plaintiffs' Federal Lands Policy and Management Act (FLPMA) claim. On April 10, 1987, the BLM director for Oregon decided not to prepare a supplemental environmental impact statement (EIS) concerning old growth timber sales based on significant new information about the northern spotted owl's ability to survive. The court originally ruled that the BLM decision was arbitrary and violated the National Environmental Policy Act (NEPA), but concluded that §314 of the 1988 Department of the Interior appropriations bill barred plaintiffs' NEPA claim. The Ninth Circuit affirmed that decision, but reversed and remanded the other claims for further proceedings, ruling that the district court had erred in finding them untimely. On first remand, the district court held that §318 of the Department of the Interior and Related Agencies Appropriations Act of 1990 required dismissal of the remanded claims. On appeal, the Ninth Circuit concluded that §318 violates the doctrine of separation of powers and reversed and remanded the case to the district court for further proceedings. The U.S. Supreme Court granted certiorari to hear the federal government's appeal of the Ninth Circuit's ruling that §318 violates separation-of-powers principles.

The district court first holds that there is no NEPA claim now before the court since the court previously dismissed plaintiffs' NEPA claim, and the Ninth Circuit affirmed that dismissal, remanding only non-NEPA claims to this court for further proceedings. The Ninth Circuit's dismissal of the NEPA claim is the law of this case.

The court next holds that the Ninth Circuit's decision in Headwaters, Inc. v. Bureau of Land Management, 21 ELR 21378, which held that the OCLA does not place wildlife habitat conservation or conservation of old growth forest on a par with timber production, or that these are even goals of the OCLA, resolves plaintiffs' OCLA claims in this case. Because no disputed facts exist in this case, the court grants defendant summary judgment on the OCLA claim.

However, the court holds that the Headwaters decision has no collateral estoppel effect in this case as to plaintiffs' FLPMA claim because neither party has addressed the factual issues underlying the FLPMA claim. The legal claim resolved in Headwaters, that the Wilcox Peak EIS did not address and consider a recently discovered pair of owls in the vicinity of the proposed sale, is materially different from the plaintiffs' claim in this case, that BLM failed to analyze the effect of its entire timber sale program on the northern spotted owl. In this case, facts are in dispute whether the Forest Resource Policy Statement of BLM, which precludes BLM from withdrawing lands otherwise suitable for commercial logging in order to provide habitat for the northern spotted owl, violates the multiple-use mandate of FLPMA. Thus, summary judgment in favor of defendant is inappropriate.

Finally, the court holds that the MBTA was not intended to include habitat modification or degradation in its prohibitions, and timber management plans that allow logging of the habitat of the northern spotted owl do not violate that act. There would have been no need to enact such additional legislation as the Endangered Species Act to protect the habitat of migratory birds if the MBTA was intended to provide such protections. Although the court grants defendant's motion for summary judgment as to the MBTA claim, the court finds that resolution of this issue is in the interest of all involved in this lengthy litigation and indicates its intent to expedite an immediate appeal.

[Decisions in this lengthy litigation are published at 18 ELR 21210, 19 ELR 20366, 20367, 21230, 21378, 20 ELR 21167, 21 ELR 20018, 20019, and 21040. The federal government's brief on appeal to the U.S. Supreme Court on the claim of separation-of-powers violations is digested at ELR PEND. LIT. 66155.]

Counsel for Plaintiffs
Victor M. Sher, Todd D. True, Corrie Yackulic
Sierra Club Legal Defense Fund
216 1st Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Michael D. Axline, John E. Bonine, David Atkin
Western Natural Resources Law Clinc
University of Oregon School of Law, Eugene OR 97403
(503) 346-3852

Counsel for Defendant
Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, Portland OR 97205
(503) 326-2101