ELR Citation: ELR 20711
No(s). s. C92-479WD et al (W.D. Wash. Dec 21, 1994)

The court upholds a forest management plan that the U.S. Department of the Interior (DOI) and the U.S. Department of Agriculture (USDA) prepared for 24.5 million acres in Washington, Oregon, and northern California that are within the geographic range of the northern spotted owl. The court first holds that plaintiffs have met the requirements of jurisdiction, venue, standing, and ripeness. The court notes that the standard of review is whether the agencies' action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The court holds that those plaintiffs who seek a declaratory judgment that the plan is illegal have the burden of showing illegality. The court denies the federal defendants' motion to strike declarations that one environmental group plaintiff filed. The court then rejects that group's request to presume that documents government employees destroyed were adverse to the government, because plaintiffs have not shown that the government had notice that the documents were relevant and there is no proof of an ulterior motive. Also, the record is sufficient to show the decisionmaking process and to permit judicial review under the Administrative Procedure Act. The court next holds that although the D.C. Circuit held that the Forest Ecosystem Management Assessment Team (FEMAT), which the government formed to assist in developing the plan, was convened and acted in violation of the Federal Advisory Committee Act, this does not justify vacating the record of decision (ROD) for the plan or altering the standard of review.

The court upholds the agencies' cooperative, ecosystem approach to preparing the plan, because there is no way the agencies could comply with environmental laws without planning on an ecosystem basis. Also, the National Forest Management Act (NFMA) directs the Secretary of Agriculture to coordinate national forest planning with the land and resource planning processes of other federal agencies, and the Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to coordinate land use inventory, planning, and management activities with the land use planning and management programs of other federal departments and agencies. Furthermore, the ecosystem approach is consistent with the multiple-use and sustained-yield principles of the Multiple Use Sustained-Yield Act (MUSYA) and the NFMA. The court holds that the Secretaries acted reasonably in using past forest conditions as a reference point for current and future conditions and to facilitate an understanding of the processes that lead to the development and maintenance of current late-successional ecosystems, because there is adequate scientific support for their decision and adequate discussion of opposing views. In addition, it was within the federal defendants' discretion to use the northern spotted owl's range as the geographic basis for planning for other species, because the owl has long been an indicator species and to plan based on different geographic boundaries for every species in the same ecosystem would be impractical. The court holds that the federal defendants are not estopped from adopting a plan that contradicts positions they took in earlier judicial proceedings, because they are responding to court orders directing them to comply with environmental laws. The court rejects the argument that the D.C. Circuit's decision in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 24 ELR 20680 (1994), is binding in the Ninth Circuit and holds that the Secretaries did not act arbitrarily, or contrary to law, in concluding that Sweet Home requires no change in the ROD. The court holds that it was a lawful exercise of the Secretary of the Interior's discretion to designate part of the lands in western Oregon that are subject to Oregon and California Railroad and Coos Bay Wagon Road Lands Act as late-successional and riparian reserves. It was also a lawful exercise of the Secretary's discretion to create key watersheds as refugia for at-risk fish stocks and to require 150-year rotation periods and the retention of some late-successional forests in the plan's matrix areas. The court holds that the multiple-use plan does not require congressional approval under FLPMA, which requires congressional approval of any withdrawal of federal land exceeding 5,000 acres, because FLPMA itself calls for the designation and protection of areas of critical environmental concern. The court holds meritless the claim that the plan's adoption violates the 1897 Organic Administration Act, because Congress gave management directions for the national forests in later statutes. The court holds that the USDA's viability regulation, which provides that fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired normative vertebrate species in the planning area, is consistent with the NFMA and with multiple-use management and that the Secretary of the Interior has not acted contrary to law in deciding to manage the Bureau of Land Management (BLM) forests so as to preserve viable populations of vertebrate species. The court also holds that given the current state of scientific knowledge, DOI and USDA adequately considered populations. In addition, their method of considering the survival prospects of species other than vertebrates was within their discretion.

The court next holds that the Secretaries may properly divide the planning process into two stages—the overall forest plan and the specific project. To require that planning be done only on an individual forest basis would be unrealistic. The court rejects the argument that the ROD is invalid because the alternative the Secretaries chose was prejudged as acceptable. Regulations require that the Forest Service and BLM designate a preferred alternative before the public comment period, and the record shows that the government acted in good faith. The early preference for the chosen alternative was not final, the government made a thorough and fair analysis of 10 alternatives, it considered all views, the final decisionmaking authority remained with the agencies, and the Secretaries modified the chosen alternative before they issued the ROD. The court holds that the mere reference to the fact that an Assistant Secretary of the Interior, who had been president of an environmental organization, was involved in the process of selecting the plan is not enough to warrant invalidating the plan or ordering him to testify at a deposition. The court rejects the argument that the Secretaries abandoned their duties under the National Environmental Policy Act (NEPA) and adopted the FEMAT report uncritically. FEMAT's work was subjected to peer review and to analysis by the team that prepared the agencies' final supplemental environmental impact statement (FSEIS) and by a scientific advisory group, each of which was composed entirely of federal employees.

Turning to plaintiffs' challenge to the alternatives the agencies considered, the court holds that the Secretaries acted within the scope of their authority in analyzing the no-action alternative only briefly because legal rulings and recently acquired biological information made that alternative infeasible. Also, general counsel for the Council on Environmental Quality deemed the Secretaries' treatment of the no-action alternative sufficient, and that opinion is entitled to deference. The court rejects the argument that the agencies erred in failing to consider a no-harvest alternative, a landscape management approach, and a long-rotation timber harvest theory, because the agencies fully considered the no-harvest alternative and they found the other two approaches inadequate. In addition, NEPA did not require the Secretaries to select the last two approaches for final consideration, and the 10 alternatives analyzed in depth span a variety of measures and strategies and an 18-fold difference among probable average annual timber sale levels. The court notes that the agencies considered dozens of alternatives and intensively scrutinized 10 of those. The court holds that the latter group fulfilled the requirement that the agencies set forth only those alternatives necessary to permit a reasoned choice.

The court next holds that the FSEIS adequately discloses the risks and confronts the criticisms relating to owl viability, because the agencies engaged in numerous studies and analyses to evaluate the effects on the owl and its habitat, the FSEIS takes a hard look at the available data and opposing opinions, and the FSEIS discusses myriad factors. The court further holds that the FSEIS adequately confronts the risks and uncertainties, and arrives at a reasoned outcome, in connection with the plan's aquatic species conservation strategy, because it describes hundreds of at-risk fish stocks, discusses the problems of management in several places, lists the main factors causing fish decline, and adopts a habitat-based approach to maintaining and restoring aquatic and riparian habitats and watersheds on federal lands within the range of the northern spotted owl. The court also holds that the FSEIS adequately discusses each type of environmental effect and that the agencies did not violate the law by determining that a comprehensive quantitative population viability assessment of the spotted owl was infeasible. In addition, the FSEIS' discussion of cumulative impacts was adequate, because it discussed cumulative effects on federal forests, on nonfederal lands, and arising from nonfederal actions. Furthermore, cumulative impact analyses will be made for site-specific actions.

The court holds that the FSEIS met NEPA's requirement that the FSEIS consider any irreversible or irretrievable commitment of resources involved in the proposed action, because the FSEIS explains that some remaining old growth forest stands would be logged under the plan, while the bulk would not be, and it sets forth the irretrievable results in terms of ecological values, human values, and timber availability. The court rejects the argument that the FSEIS does not adequately consider mitigation measures, because the FSEIS includes important mitigation measures and its explanation of why other measures were not deemed necessary or practical is adequate. The court also holds legally sufficient the plan's monitoring program and the FSEIS' discussion of the impacts of timber harvesting on water quality, air quality, and climate. The court notes that the analyses are general due to the programmatic nature of the FSEIS.

The court next upholds the FSEIS' and the ROD's assessment of economic effects, because NEPA does not require a particularized assessment of nonenvironmental impact, and the FSEIS discusses the economic and social consequences of the plan at length. The courts also holds that the Secretaries acted lawfully in declining to adopt the views of plaintiffs' economists that the region would be better off economically by foregoing any more old growth cuts and holds adequate the FSEIS' statement that a failure to monitor adequately, due to financial constraints, would call for reconsideration of the plan. Finally, the court holds that even though the ROD contains changes from the FSEIS, the Secretaries acted within the scope of their discretion by proceeding without an additional environmental impact statement and comment period.

[Related decisions are published at 18 ELR 21210; 19 ELR 20366, 20367, 21230, and 21378; 21 ELR 20018, 20019, and 21341; 22 ELR 20372, 20889, and 21471; 23 ELR 21142 and 21148; and 24 ELR 20937. Briefs in this litigation are digested at ELR PEND. LIT. 66229 and 66336.]

Counsel for Plaintiffs
Todd D. True, Victor M. Sher
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle, WA 98104
(206) 343-7340

Counsel for Defendants
Christopher L. Pickrell
Environmental and Natural Resources Division
U.S. Department of Justice, Washington, DC 20530
(202) 514-2000