ELR Citation: ELR 20019
No(s). s. 90-35020 et al (9th Cir. Sep 18, 1990)

In a case of first impression, the court holds that congressional legislation directing federal courts to reach a particular result in pending court cases that challenge a U.S. Forest Service timber management plan violates the U.S. Constitution's separation of powers doctrine. Section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990 would allow timber sales in old growth forests in Oregon and Washington. Section 318(b)(6)(A) would further instruct courts to find that the timber management plan satisfies the environmental laws underlying two pending cases identified by caption and file number that challenge the plan as affording inadequate protection to the northern spotted owl.

The court holds that §318 seeks to perform functions reserved for the courts by Article III of the U.S. Constitution. Section 318 does not repeal or amend existing law. Instead, it provides that if the government follows §§318(b)(3) and (b)(5), which forbid timber sales in specified spotted owl habitat, it will be deemed to have applied the multiple use, sustained yield, and systematic interdisciplinary approach requirements under the Federal Land Policy and Management Act and to have included detailed statements of adverse environmental effects and alternatives required under the National Environmental Policy Act. Also, no taking of habitat as proscribed by the Migratory Bird Treaty Act would have occurred. Thus, Congress not only legislated a forest management plan, but also directed the courts to find that the plan satisfied environmental laws underlying ongoing litigation. The court next holds that §318 violates the separation of powers doctrine because, although the legislative history of §318 disguises the Act as changing legal standards, the statutory language itself does not do so. The court also notes that precedent holding that Congress may not impliedly repeal an environmental statute in an appropriations measure precludes a saving interpretation of §318(b)(6)(A).

[Related decisions in this litigation are published at 21 ELR 20018, 20 ELR 21167, 19 ELR 20366, 20367, 21230, 21378, and 18 ELR 21210.]

Counsel for Appellants
Todd D. True
Sierra Club Legal Defense Fund, Inc.
216 First Ave., S., Ste. 330, Seattle WA 98104
(206) 343-7340

Michael Axline
Western Natural Resources Law Clinic
University of Oregon Law Ctr., Eugene OR 94703
(503) 686-3823

Phillip Chadsey
Stoel, Rives, Boley, Jones & Grey
900 S.W. Fifth Ave., Ste. 2300, Portland OR 97204-1268
(503) 224-3380

Counsel for Appellees
Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000