Ancient Forests, Spotted Owls, and the Demise of Federal Environmental Law

Victor M. Sher

Victor Sher is the Managing Attorney of the Northwest Office of the Sierra Club Legal Defense Fund (SCLDF). He and his colleagues at SCLDF represent citizens groups in lawsuits to protect the ancient forests, including Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 19 ELR 20277 (W.D. Wash. 1988) (reversing the Fish and Wildlife Service's decision not to list the spotted owl under the Endangered Species Act); Portland Audubon Soc'y v. Lujan, 712 F. Supp. 1456, 19 ELR 21230 (D. Or.), aff'd in part, rev'd in part, 884 F.2d 1233, 19 ELR 21378 (9th Cir. 1989) (challenging the Bureau of Land Management's logging activities); Seattle Audubon Soc'y v. Robertson, No. C89-160-WD (W.D. Wa.) (challenging the Forest Service's spotted owl management plan); and Oregon Natural Resources Council v. Mohla, 895 F.2d 627 (9th Cir. 1990) (challenging the Forest Service's failure to consider new information about old-growth ecosystems).

[20 ELR 10469]

A serious threat to our nation's fundamental environmental charter emerges in the fight over the future of the remaining ancient forests of the Pacific Northwest. Roughly 20 years ago, Congress enacted the pillars of federal environmental law, including the Endangered Species Act (ESA),¹ the National Forest Management Act (NFMA),² the Federal Land Policy and Management Act (FLPMA),³ and the National Environmental Policy Act (NEPA).⁴ These laws elevate environmental concerns over "business as usual" and ensure that federal agencies consider carefully the implications of proposed actions before irrevocably harming the environment.

Today, the integrity of these laws is at risk. Environmental groups brought a series of lawsuits challenging the logging activities of the U.S. Forest Service and the Bureau of Land Management (BLM) on public lands in Oregon and Washington. In response, members of Congress from the Northwest spearheaded an effort to circumvent the judicial decisions that would curtail logging to protect the environment, as required by existing environmental laws. These actions limit the rights of citizens to seek redress against illegal action by land management agencies in federal court.

Congress is not the only branch undermining these rights. In June 1990, when the Fish and Wildlife Service added the northern spotted owl — an important "indicator species" for the health of the old-growth ecosystem — to the list of species protected by the ESA, President Bush, the "environmental President," proposed to insulate governmental management of the owl from further review in the courts and to weaken the Act itself.

Appropriations Riders Undermine the Rights of Citizens to Go to Court

The vehicle of choice for insulating federal agencies from environmental laws has been to insert obscure provisions (called "riders") into Congress' annual spending bills for the Department of the Interior and related agencies. The sole purpose of these riders is to limit or eliminate federal judicial review of logging practicesthat are rapidly destroying ancient forests. These riders foreclose challenge of illegal agency actions, undermining the integrity of the laws and our judicial system.

Over the last six years, appropriations riders were continually used to override judicial limits on cutting ancient forests. First, in 1984, a federal court in Oregon held that the Forest Service violated NEPA by failing to address the cumulative effects of logging on water quality and fish habitat in the Mapleton District of the Siuslaw National Forest. The court prohibited further sales pending completion of an adequate environmental impact statement (EIS).⁵ However, every year since 1986, Oregon's Senator Mark O. Hatfield has sponsored an appropriations rider that allows timber sales to proceed in the Mapleton District, despite the court's injunction and the continuing absence of an EIS.⁶

Second, in 1987, a federal court found BLM's failure to disclose — much less analyze and consider — "new, significant and probably accurate"⁷ information about the potential effects of logging in ancient forest stands on the possible extinction of the northern spotted owl to be arbitrary [20 ELR 10470] and capricious and a violation of NEPA. But the court also held that an appropriations rider sponsored by Senator Hatfield deprived it of jurisdiction. This holding was affirmed by the U.S. Court of Appeals for the Ninth Circuit.⁸

Third, in 1988, citizens challenged the Forest Service's decision to offer a timber sale on the Mount Hood National Forest. The Agency relied on a 12-year-old environmental analysis that predated a decade of scientific evidence on the ecological significance of old-growth forests. The court, however, determined that it could not hear the challenge under the same appropriations rider that barred the BLM case described above.⁹

Fourth, in 1989, citizens challenged the adequacy of the Forest Service's December 1988 management plan for the northern spotted owl in Oregon and Washington. The district court held that plaintiffs demonstrated a substantial likelihood of prevailing and issued a preliminary injunction halting old-growth timber sales in spotted owl habitat until it could hear the case on the merits.¹⁰ Another appropriations rider sponsored by members of the congressional delegation from the Northwest required the Forest Service to "release" more than one billion board feet of timber preserved under the injunction. The rider also declared Forest Service and BLM timber activities during the next 12 months "adequate" under NFMA, FLPMA, and NEPA.¹¹

Finally, in 1990, following successful litigation by citizens in federal court,¹² the Fish and Wildlife Service declared the northern spotted owl to be "threatened" under the ESA.¹³ The Bush administration now proposes to pull owl management from Agency scientists, to preclude judicial challenges to BLM and Forest Service recovery plans, and to weaken the ESA (i.e., to make it more responsive to economic concerns). Congress is also considering turning the appropriations riders into permanent legislation.

The Importance of Citizen Rights to Go to Court in Environmental Law

The courts are not to blame for the federal timber agencies' problems in the Northwest. It is the Forest Service and BLM that consistently violate the law. Representatives from the Northwest then sanctify these illegal actions through appropriations riders.

Although the purported justification for limiting citizen access to the courts is to protect employment, jobs are disappearing anyway in the region's timber communities because they are exported across the Pacific Rim. Billions of board feet of raw old-growth logs from public lands in the United States are milled by workers in the Far East. More jobs are lost as mills modernize and automate.

The impact of eviscerating environmental laws extends beyond management of our public lands. The integrity of a fundamental premise of federal environmental policy is also at stake. The premise is that our environmental laws apply uniformly to federal agencies nationwide and that these laws — which require informed decisionmaking and consideration of the broad public welfare — can be enforced in the federal courts by citizens.

Chief Justice John Marshall in 1803 called the right to hold governmental action accountable before an independent judiciary part of the "very essence of civil liberty."¹⁴ Barring citizens access to the courts to allow illegal logging of the ancient forests sets a dangerous legislative precedent — one that could be used to deny civil and individual rights in other settings.

Our disappearing ancient forests are an irreplaceable national treasure. In addition, they are intrinsically valuable and thus deserve affirmative protection for their own sake. Our ancient forests should not be excluded from the protection of our environmental laws.

1. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA 002-027.

2. 16 U.S.C. §§ 1600-1614, ELR STAT. NFMA 002-012.

3. 43 U.S.C. §§ 1701-1782, ELR STAT. FLPMA 003-037.

4. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 003-014.

5. National Wildlife Fed'n v. United States Forest Serv., 592 F. Supp. 931 (D. Or. 1984), modified, 801 F.2d 360 (9th Cir. 1986).

6. Supplemental Appropriations Act, Fiscal Year 1985, Pub. L. No. 99-88, 99 Stat. 293 (1985); Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1989, Pub. L. No. 100-446, § 321, 102 Stat. 1774; Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No. 101-121, § 318, 103 Stat. 745. The applicability of § 318 to the Mapleton District is currently on appeal to the U.S. Court of Appeals for the Ninth Circuit.

7. Portland Audubon Soc'y v. Lujan, 712 F. Supp. 1456, 19 ELR 21230 (D. Or.), aff'd in part, rev'd in part, 884 F.2d 1233, 19 ELR 21378 (9th Cir. 1989).

8. 884 F.2d 1233, 19 ELR 21378 (9th Cir. 1989).

9. Oregon Natural Resources Council v. Mohla, 895 F.2d 627 (9th Cir. 1990).

10. Seattle Audubon Soc'y v. Robertson, No. C89-160-WD (W.D. Wa. Mar. 23, 1989).

11. Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No. 101-121, § 318, 103 Stat. 745.

12. Northern Spotted Owl v. Hodel, 716 F. Supp. 479, 19 ELR 20277 (W.D. Wash. 1988).

13. 55 Fed. Reg. 26114 (June 26, 1990).

14. Marbury v. Madison, 1 Cranch 137, 163 (1803).