ELR Citation: ELR 21167
No(s). s. C89-160WD, -99(T)WD (W.D. Wash. May 11, 1990)

The court enjoins the Forest Service from selling timber in threatened northern spotted owl habitat in an Oregon national forest because the Service has violated the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990. Section 318 establishes one-year timber quotas for 13 Washington and Oregon national forests, mandates that if any fragmentation of ecologically significant old growth (ESOG) is necessary that it be minimized, and sets a short timetable for deciding any challenges to timber sales. The court holds that §318 of the Act permits summary judgment even though it eliminates temporary restraining orders and preliminary injunctions. The court holds that the Seattle Audubon Society (SAS) has standing to challenge the timber sale. Besides, the Forest Service did not move for summary judgment on the issue of standing, but only raised it as a defense to SAS' motion. The court holds that the standard of review for challenging timber sales under the Act is whether such sale was arbitrary, capricious, or otherwise not in accordance with the law. The court holds that materials outside the administrative record are admissible for limited purposes. The court holds that the requirement in §318(a)(1) that sales volume be distributed proportionally between Oregon and Washington applies to the states and not to the individual forests. The court holds that §318(b) imposes two duties on the Forest Service: (1) that it not fragment ESOG except to the extent necessary to meet timber sale levels and (2) that, where fragmentation is necessary, it must minimize it. These requirements mean that the Forest Service must set sales quotas for individual forests and districts to fulfill the multiple purposes of §318; consider whether another sale or sales in the same district could feasibly be substituted that would avoid, or better minimize, fragmentation of ESOG; and consider whether fragmenting sales could feasibly be offered elsewhere in the same forest. The Forest Service must consider consistency with existing land and resource management plans prepared pursuant to the National Forest Management Act in determining whether sales are feasible. The court finds that the Cowboy timber sale in the Umpqua fragments ESOG and nothing in the administrative record explains why the Forest Service found it to be necessary to meet the sales quota for Oregon forests or for the Umpqua. Therefore, the court enjoins the sale because it is arbitrary and capricious.

Counsel for Plaintiffs
Thomas A. Starrs
Perkins & Cole
1201 Third Ave., Ste. 4000, Seattle WA 98101-3099
(206) 583-8888

Counsel for Defendants
Wells D. Burgess
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 517-2000

Dwyer, J.