National Wildlife Federation v. United States Forest Service

No. 83-1153-LE (D. Or. March 5, 1990)

The court modifies a 1984 judgment that enjoined timber sales in the Mapleton Ranger District of the Siuslaw National Forest pending the Forest Service's compliance with the National Environmental Policy Act (NEPA). The court holds that § 318 of the Department of the Interior Appropriations Act for fiscal year 1990 exempts 1990 timber sales from the injunction. Section 318 suspends NEPA's requirements for one year so that logging may proceed in old-growth national forest areas that contain spotted owl habitat. Section 318(a)(1) allows timber sales to proceed provided that they are consistent with the preferred alternative of the draft land and resource management plan and accompanying draft environmental impact statement (EIS). By establishing this alternative standard for assessing timber sales, Congress required the sales to proceed despite the lack of a final EIS and the court's 1984 injunction. The court holds that § 318(b)(6)(A) does not nullify all NEPA violations for fiscal year 1990, but nullifies only the specific NEPA violations that were the basis for the cases listed in this provision.

[Previous decisions in this litigation are published at 14 ELR 20349 and 20755, 15 ELR 20931, and 17 ELR 20344.]

Counsel for Plaintiffs
Roy E. Elicker
National Wildlife Federation
519 S.W. Third Ave., Ste. 606, Portland OR 97204
(503) 222-1429

Gary D. Meyers
6924 S.W. Montauk Cir., Lake Oswego OR 97035

Victor M. Sher, Todd D. True, Denise E. Antolini
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Charles H. Turner, U.S. Attorney
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Courthouse, 620 S.W. Main, Portland OR 97205
(503) 221-2202

[20 ELR 20654]

Marsh, J.:

Opinion

On August 6, 1984, this court entered judgment enjoining timber sales in the Mapleton Ranger District of the Siuslaw National Forest ("Mapleton District") pending the Forest Service's compliance with the National Environmental Policy Act. At issue before me now is the motion of defendant United States Forest Service et al. ("federal defendants") to modify the Amended Judgment of August 6, 1984 and plaintiff Siuslaw Task Force's cross-motion to modify this judgment. For the reasons set forth below, I grant both the federal defendants' and plaintiff Siuslaw Task Force's motions to modify.

Facts

The Mapleton District is comprised of approximately 200,000 acres in the center of Oregon's coast range. As this court previously found, the District is "particularly susceptible to soil erosion" and this erosion has "dramatically increased" as a result of road building and timber harvesting. National Wildlife Federation v. United States Forest Service, 592 F. Supp. 931, 934 [14 ELR 20755] (D. Or. 1984), as amended, 801 F.2d 361 [17 ELR 20344] (9th Cir. 1986).

In 1982, the Forest Service issued a Seven Year Action Plan for the Mapleton District "proposing to harvest, primarily by clear-cutting, approximately 100 million board feet a year." National Wildlife Federation, 592 F. Supp. at 936. In 1983, plaintiffs brought this action for injunctive relief contending that the Seven Year Action Plan violated the National Forest Management Act, 16 U.S.C. § 1600 et seq., the Multiple-Use Sustained Yield Act, 16 U.S.C. §§ 528-531, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4361.

The court found that the Forest Service's failure to prepare an environmental impact statement for the Seven Year Action Plan violated NEPA because the proposed timber sales constituted "major Federal actions significantly affecting the quality of the human environment" under 42 U.S.C. § 4332(2)(c). National Wildlife Federation, 592 F. Supp. at 940. Accordingly, the court enjoined the Forest Service from offering for sale any timber in the Mapleton District, with very limited exceptions, until the federal defendants submit to the court a final environmental impact statement.

Subsequent to the issuance of this injunction, Congress has twice legislated to limit the scope of the court's Mapleton District injunction. In 1985, Congress enacted legislation which authorized the Forest Service to resell certain timber sales from the Mapleton District that had previously been sold but returned to the Forest Service. Supplemental Appropriations Act, 99 Stat. 293, 340 (Aug. 15, 1985). The Act provided that such timber could be resold "notwithstanding any other provision of law, and notwithstanding the injunctions issued in National Wildlife Federation et al. v. United States Forest Service et al., 592 F. Supp. 931 [14 ELR 20755] (D. ORE. 1984) and in No. 84-4272 (9th Cir., March 6, 1985)." Supplemental Appropriations Act, 99 Stat. 293, 340. The Act further provided that "[a]ny decision of the Secretary of Agriculture to resell such timber shall not be subject to judicial review." Id.

Based on the 1985 Act and upon motion by the federal defendants, on January 3, 1986 the court modified the Amended Judgment by adding the following paragraph:

9. Paragraph 1-8 of the Amended Judgment, and the injunction therein, shall not apply to the resale or resale as modified, pursuant to Public Law No. 99-88, 99 Stat. 293, 340 (August 15, 1985), of timber sales that are returned to the federal defendants pursuant to the Federal Timber Contract Payment Modification Act, 16 U.S.C.A. § 628, or which are defaulted.

In 1988, Congress once again acted to limit the scope of the Mapleton District injunction. The 1988 legislation authorized the Forest Service to sell up to 90 million board feet of timber in the Mapleton District in the Fiscal Year 1989 "notwithstanding the injunction issued pursuant to the judgment in the National Wildlife Federation, et al., v. United States Forest Service, et al. (592 F. Supp. 981 [14 ELR 20755] (D. Ore. 1984), as modified by 801 F.2d 360 [17 ELR 20344] (9th Cir. 1986))." Department of Interior Appropriations Act, Public Law No. 100-446, § 321 (Sept. 27, 1988). Section 321 provided that

[f]or the purposes only of selling timber pursuant to this section . . . the Secretary shall utilize the Siuslaw National Forest draft land and resource management plan and accompanying draft environmental impact statement dated October 1, 1986 as if they were the final forest plan and environmental impact statement.

Section 321 specifically provided that for the purpose of this section, this draft statement ". . . shall be treated as satisfying all requirements of the National Environmental Policy Act of 1969 . . . and shall not be subject to administrative or judicial review" for noncompliance with NEPA. Section 321 expired September 30, 1989.

Based on the 1988 Act and upon motion by the federal defendants, on November 30, 1988 the court modified the Amended Judgment by adding the following paragraph:

10. Paragraphs 1-8 of this Amended Judgment, and the injunction therein, shall not apply to timber sales on the Mapleton Ranger District during Fiscal Year 1989, of up to 90 million board feet of net merchantable timber, offered pursuant to Public Law No. 100-446 (Sept. 27, 1988), Section 321.

The issue before me now is whether Congress has similarly exempted 1990 timber layers from the Mapleton District injunction through its enactment of § 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Public Law No. 101-121, 103 Stat. 701, 7455-50 (1989).

Discussion

Both parties agree that § 318 of the 1989 Appropriations Act modifies the Amended Judgment in this action by allowing timber sales in the Mapleton District which were released by agreement between the parties pursuant to § 318(f)(1).¹ The parties disagree, [20 ELR 20655] however, as to whether § 318 acts to release other timber sales in the Mapleton District. Defendants argue that § 318 modifies the Amended Judgment by providing that the injunction does not apply in 1990 to proportionately allowed timber sales in the Mapleton District that are consistent with the preferred alternative of the Siuslaw National Forest's draft land and resource management plan and accompanying draft environmental impact statement. Plaintiff Siuslaw Task Force contends that § 318 does not modify the Amended Judgment in this manner because § 318 does not relieve the Forest Service of its obligation under NEPA to prepare a final environmental impact statement for the Mapleton District.

Section 318(a)(1) of the 1989 Appropriations Act provides that

[t]he Forest Service shall offer, notwithstanding the provisions of the Federal Timber Contract Payment Modification Act of 1984 (16 U.S.C. § 618(a)(5)(c)), an aggregate timber sale level of seven billion seven hundred million board feet of new merchantable timber from the national forests of Oregon and Washington for fiscal years 1989 and 1990. Such timber sales shall be consistent with existing land and resource management plans or land and resource management plans as approved except, in the case of the Mapleton Ranger District of the Siuslaw National Forest, Oregon, such sales shall be consistent with the preferred alternative of the draft land and resource management plan and accompanying draft environmental impact statement dated October 1, 1986, pending approval of a final land and resource management plan for the Siuslaw National Forest: Provided, That of the seven billion seven hundred million board foot aggregate timber sale level for fiscal years 1989 and 1990, timber sales offered from the thirteen national forests in Oregon and Washington known to contain spotted owls shall meet an aggregate timber sale level for fiscal years 1989 and 1990 of five billion eight hundred million board feet of net merchantable timber: Provided further, That the sales volume shall be distributed in the same proportion between Oregon and Washington national forests known to contain northern spotted owls based on the average sale volume for fiscal years 1986 through 1988.

(Emphasis added).

Defendants argue that because § 318(a)(1) lists the Mapleton District as part of its total annual timber harvest for the Fiscal Year 1990, this section must be interpreted as a replacement of the 1988 Appropriations Act provision which gave rise to this court's order of November 29, 1988 amending the scope of the Mapleton District injunction. Defendants contend that § 318(a)(1) lifts the injunction in this case for an additional year so as to allow timber sales in the Mapleton District to proceed notwithstanding defendants' failure to complete a final environmental impact statement.

Defendants also argue that § 318 modifies the Amended Judgment to allow 1990 timber sales to proceed because § 318 removes the legal basis for the Amended Judgment. Defendants argue that this is so because § 318 precludes the court from determining whether timber sales covered by § 318 are in violation of NEPA. Defendants argue that because NEPA violations were the basis for the injunction in this case, the Mapleton District injunction must be suspended for 1990. In support of this position, defendants rely on the following language from § 318(b)(6)(A):

Congress hereby determines and directs that management of areas according to subsections (b)(3) . . . of this section on the thirteen national forests in Oregon and Washington . . . known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR [19 ELR 21230]. The guidelines adopted by subsections (b)(3) . . . of this section shall not be subject to judicial review by any court of the United States.

Subsection (b)(3) in turn provides that no timber sales offered from the thirteen national forests in Oregon and Washington known to contain spotted owls may occur within Spotted Owl Habitat Areas ("SOHA") "identified pursuant to the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide — Spotted Owl and the accompanying Record of Decision issued by the Forest Service on December 8, 1988 as adjusted bythis subsection." Subsection (b)(3) sets forth modified SOHA sizes for specified national forests in Oregon and Washington.

I find that § 318(a)(1) modifies the injunction in this case by allowing timber sales to proceed in the Mapleton District as part of the mandated sale of seven billion seven hundred million board feet provided that such sales are consistent with the preferred alternative of the draft land and resource management plan and accompanying draft environmental impact statement dated October 1, 1986.

Plaintiff's contention that § 318 is not applicable to this case because the purpose of this section was limited merely to problems associated with the northern spotted owl is not supported by the record. The purpose behind § 318 was an attempt "to balance the goals of ensuring a predictable flow of public timber for fiscal year 1990 and protecting the northern spotted owl and significant old growth forest stands." Conference Report No. 101-264 at 87 (Oct. 2, 1989) (emphasis added). As the Conference Committee explained, § 318 was a legislative response to court challenges that "have raised serious concerns about the adequacy of planned actions of the agencies with regard to managing habitat for the northern spotted owl and minimizing fragmentation of old growth stands." Conference Report at 87 (emphasis added). "The net result of the legislation, after a prolonged debate in Congress, is to set aside, for one year, certain requirements of the environmental laws so that logging may go forward in old-growth national areas that contain spotted owl habitat." Seattle Audubon Society, et al. v. Robertson et al., Civ. No. 89-160-WD, slip. op. at 1-2 (W.D. Wash. November 14, 1989). This goal is accomplished through the establishment of interim guidelines for the management of spotted owl habitat and the removal for fiscal year 1990 of "the sufficiency or insufficiency of those standards as a reason for injunctive relief." Conference Report at 87.

In contrast to both the 1985 and 1988 Appropriations Acts which altered or suspended the Mapleton District injunction, § 318(a)(1) does not mention this action by name or direct that timber be sold "notwithstanding the injunction issued" by this court. However, § 318(a)(1) does set forth a standard for these sales which is at variance with the standard required in the Amended Judgment in this case. Accordingly, I find that § 318(a)(1) presents a "clear and unavoidable conflict" in statutory authority between that section and the requirements of NEPA upon which the Amended Judgment in this case was based. See California v. Block, 690 F.2d 753 [13 ELR 20092] (9th Cir. 1982) (holding that federal agencies must comply with NEPA "to the fullest extent possible unless there is a 'clear and unavoidable conflict in statutory authority.'" Id. at 775 quoting Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 788 [6 ELR 20528] (1976)). The reference to the Mapleton District in § 318(a)(1)'s directive that seven billion seven hundred million board feet be sold in Oregon and Washington national forests in Fiscal Years 1990 clearly shows that Congress intended that a portion of the aggregate timber sales take place in the Mapleton District. I find that the only plausible explanation for the inclusion of § 318(a)(1)'s provision relating to the Mapleton Ranger District of the Siuslaw National Forest is that Congress recognized that no final environmental statement exists for the Mapleton District. By establishing an alternative standard for assessing proposed timber sales in the Mapleton District, Congress thereby directed that these timber sales proceed notwithstanding the District's failure to complete a final environmental statement and consequently notwithstanding the injunction in this case which was based solely on the District's failure to complete a final environmental statement.

[20 ELR 20656]

I reject defendants' argument that the Amended Judgment in this case is modified because § 318(b)(6)(A), nullifies all NEPA violations for the Fiscal Year 1990. Section 318(b)(6)(A)'s reference to the "statutory requirements that are the basis for the [listed] consolidated cases" is not synonymous with any alleged violation of NEPA. Rather, the reference to statutory requirements relates to the specific NEPA violations which were the basis for the listed cases. In the cases listed in § 318(b)(6)(A), such as Seattle Audubon Society v. F. Dale Robertson, Civil No. 89-160, the alleged NEPA violations related to the Forest Service's failure to adequately disclose and assess environmental consequences to the spotted owl in the Forest Service's Environmental Impact Statement for its Pacific Northwest Regional Guide — Spotted Owl Guidelines. Section 318 abates such alleged violations of NEPA for the Fiscal Year 1990 insofar as they relate to sales covered by § 318. Accordingly, my finding that Congress intended timber sales to proceed on the Mapleton District notwithstanding the permanent injunction in this action is not based on any alleged repeal of NEPA but rather Congress' directive that Mapleton District timber sales proceed provided that the preferred alternative of the draft land and resource management plan is complied with. Thus, contrary to plaintiff's contention, the presumption disfavoring repeals by implication does not apply. See e.g. United States v. Fausto, 108 S. Ct. 668, 676 (1988); Tennessee Valley Authority v. Hill, 437 U.S. 153, 189 [8 ELR 20513] (1978); Rembold v. Pacific First Federal Savings Bank, 798 F.2d 1307, 1310 (9th Cir. 1986), cert. denied, 482 U.S. 905 (1987).

Conclusion

For the reasons set forth above, I grant defendants' motion to modify the Amended Judgment of August 6, 1984 (# 238). The Amended Judgment of August 6, 1984 in this case, as modified by Order dated January 3, 1986, appellate order dated September 30, 1986 (801 F.2d 360), and Order dated November 29, 1988, is hereby further modified to add the following paragraph:

11. Paragraphs 1 through 8 of this Amended Judgment, and the injunction therein, shall not apply to timber sales on the Mapleton Ranger District during Fiscal Year 1990 that are consistent with the preferred alternative of the Siuslaw National Forest's draft land and resource management plan and accompanying draft environmental impact statement dated October 1, 1986, or when approved by the Regional Forester, the Siuslaw's National Forest's final land and resource management plan and accompanying final environmental impact statement.

Plaintiff's motion to modify the Amended Judgment by striking paragraph 10 (# 241) is also granted on the ground that the statutory provision on which the modifications contained in paragraph 10 were based is no longer in effect.

1. Section 318(f)(1) provides that "[n]ot later than two days after enactment of this Act, the Forest Service shall submit to plaintiffs in the captioned case Seattle Audubon Society et al. v. F. Dale Robertson Civil No. 89-160, a list of sales which had been prepared for offer in fiscal year 1989 and which contain at least 40 acres of suitable spotted owl habitat. Not later that [sic] fourteen days after receipt of such list, plaintiffs . . . may enter into an agreement with the Forest Service releasing for sale not less than one billion one hundred million board feet of net merchantable timber . . . Such timber sales selected shall not be subject to further judicial review by an [sic] court of the United States." Pursuant to § 318(f)(1), certain environmental groups and the Forest Service reached agreement to release a number of timber sales including six sales on the Mapleton District. Plaintiff concedes that Congress has expressly directed that these six sales go forward despite the scope of the Amended Judgment in this action because, unlike § 318(a)(1), agreements entered into pursuant to § 318(f)(1) are not subject to judicial review.