Striking the balance: the tale of eight Ninth Circuit timber sales cases.

• Jurisdiction: United States
• Author: Brown, Susan Jane M.
• Date: 22 September 1999

1. INTRODUCTION

   In Neighbors of Cuddy Mountain v. United States Forest Service (Neighbors)(1) and Idaho Sporting Congress v. Thomas (Idaho Sporting Congress)(2) the Ninth Circuit Court of Appeals held that the United States Forest Service (USFS) failed to comply with the procedural requirements of the National Environmental Policy Act (NEPA)(3) and the substantive requirements of the National Forest Management Act (NFMA),(4) the Clean Water Act (CWA),(5) and state water quality standards. The court reached decisions in Neighbors and Idaho Sporting Congress that are out of step with previous Ninth Circuit decisions in timber sale cases. Prior to Neighbors and Idaho Sporting Congress, the Ninth Circuit had almost categorically deferred to the Forest Service's interpretation of NEPA and NFMA when evaluating the reasonableness of proposed timber sales.

   In Neighbors and Idaho Sporting Congress, the Ninth Circuit departed from a series of decisions favorable to the Forest Service and found in favor of environmental plaintiffs. This Chapter will attempt to discern why. Did the court view these two cases as factually different from previous cases? If not, was the court simply taking the hard-line approach to evaluating the Forest Service's environmental stewardship decisions? Is the Ninth Circuit engaged in judicial activism, or is it simply enforcing the law as Congress intended?

   This Chapter focuses on Ninth Circuit decisions involving NEPA, NFMA, and the CWA in timber sale cases in the Pacific Northwest. It maintains that, based on the line of decisions prior to Neighbors and Idaho Sporting Congress, the court saw a need to correct what was becoming a trend in the Ninth Circuit--failure to closely examine the facts of the cases and to consider them in light of the requirements of NEPA and other environmental statutes. Part II reviews three representational timber sale cases prior to Neighbors and Idaho Sporting Congress. Part III examines Neighbors and Idaho Sporting Congress in an attempt to determine why the outcomes of these cases are different from those of their predecessors. The result of this examination is a hypothesis in Part IV that, unlike in prior opinions, the Ninth Circuit refused to defer to uninformed agency decision and instead applied an arbitrary and capricious standard of review to find that USFS had not met its "hard look" burden. Part V discusses the legacy of Neighbors and Idaho Sporting Congress, and suggests that the Ninth Circuit is not engaged in judicial activism, but rather in an appropriate application of the law.

2. BEFORE THE REVOLUTION

   In the wake of Citizens to Preserve Overton Park v. Volpe,(6) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,(7) and Thomas v. Peterson(8) came renewed attention to the natural environment.(9) This paradigm shift culminated in the spotted owl litigation, best exemplified by Northern Spotted Owl v. Hodel.(10) That litigation highlighted the plight of the spotted owl and the state of forestland in the Pacific Northwest, and began to focus public attention on the devastating timber sales that were destroying the owl's habitat.(11)

   1. Oregon Natural Resources Council v. United States Forest Service

      Oregon Natural Resources Council v. United States Forest Service (ONRC)(12) is a case typical of the push to prevent logging on public lands. In 1980, USFS prepared an environmental assessment (EA) for the North Roaring Devil timber sale in the Willamette National Forest in central Oregon, and subsequently issued a decision notice (DN) and finding of no significant impact (FONSI) for the sale.(13) No administrative appeal was filed, and USFS awarded the sale to the highest bidder in 1981.(14) The purchaser then defaulted on the sale, so the sale was returned to USFS pursuant to the Federal Timber Contract Payment Modification Act of 1984 (FTCPMA).(15) USFS modified and reoffered the sale in December 1985, and the plaintiffs appealed that decision in January 1986.(16)

      The Forest Service denied the appeal as untimely, explaining that the appeal of the decision should have been made in 1980, when North Roaring Devil was originally released, and not in 1986.(17) Plaintiffs filed suit in district court, alleging that the failure to allow the appeal violated NEPA and that the EA violated the Endangered Species Act (ESA)(18) due to the impact on the northern spotted owl.(19) The district court denied injunctive relief to the plaintiffs and granted summary judgement to the defendants.(20)

      The appellants raised the following three claims on appeal: 1) USFS violated the Administrative Procedure Act (APA)(21) by denying appellants an administrative appeal of the North Roaring Devil timber sale; 2) the EA prepared for the sale was inadequate under NEPA because the EA failed to analyze cumulative effects, disclose violations of Oregon state water quality standards, and was in fact preempted by the draft environmental impact statement (DEIS) on the northern spotted owl;(22) and 3) the sale violated the CWA due to the effects of logging and bridge-building.(23) The appellants were attempting to halt not only the North Roaring Devil sale, but also the adjacent Crag sale.(24)

      The court first addressed the question of whether USFS had violated the APA when it failed to allow appellants to administratively appeal the North Roaring Devil sale. The district court had denied the plaintiffs an opportunity to appeal, and the Ninth Circuit reversed on the issue.(25) The panel held that under FTCPMA and NFMA appeal regulations,(26) the act of reoffering the sale constituted a "decision" and therefore was appealable.(27)

      The court next addressed the merits of ONRC's case, beginning with the claim that the EA for the North Roaring Devil sale inadequately assessed the sale's cumulative impacts. The district court had held that the programmatic EIS for the Willamette National Forest (Willamette Forest Plan) adequately addressed the impacts of timber harvest, and that the EA for the present sale tiered(28) to the programmatic EIS.(29) The Forest Service claimed that the appellants had had an opportunity in 1980 to administratively appeal the timber sale, and because they had passed up that opportunity, they should not be allowed to appeal later.(30) Passing on the issue of whether the cumulative effects analysis that should have appeared in the EA in fact could tier to the Willamette Forest Plan, the Ninth Circuit agreed with the appellees that the appellants were likely barred from appealing the sale at that time instead of raising an appeal in 1980.(31) However, because the court had just held that the appellants were entitled to appeal the sale, it quickly noted that if ONRC could allege changed circumstances between 1980 and 1986, then a new appeal would be timely.(32) Thus, the court vacated the district court's findings regarding the adequacy under NEPA of the North Roaring Devil EA.(33)

      The court then discussed whether the district court's decision to sever the northern spotted owl claim effectively condoned the Forest Service's violation of Council on Environmental Quality (CEQ) regulations.(34) ONRC claimed that severing the northern spotted owl claim limited the alternatives that USFS would have before it when it considered the DEIS on the spotted owl.(35) The court affirmed the district court's findings on this issue, holding that the appellants could have challenged the DEIS when it was issued and that the present litigation was not the proper forum for shaping the alternatives analysis for that document.(36)

      Lastly, the court turned to the plaintiffs' claims that the North Roaring Devil sale would violate the CWA(37) and Oregon state water quality standards.(38) The district court held that the appellants were barred from bringing a claim under the citizen suit provision of the CWA(39) because they failed to provide the Forest Service with a sixty-day notice of intent to sue.(40) However, ONRC maintained that their claim was brought under the judicial review provision of the APA,(41) and not the CWA.(42) In raising this argument, the appellants explained that the citizens suit provision of the CWA allowed enforcement of violations of "an effluent standard or limitation,"(43) and that the state antidegradation policy was such a limitation,(44) The court explained that in its view, the citizen suit provision of the CWA was not intended to be a tool to enforce nonpoint source pollution(45) standards. Therefore, the sixty-day notice requirement was not applicable.(46) Thus, the district court erred in holding that the appellants were required to provide a sixty-day notice to USFS, because the appellants were not even permitted to sue under the CWA.

      While the appellants were not allowed to sue under the citizen suit provision of the CWA, the Ninth Circuit held that standing to sue was proper under the APA.(47) The Forest Service claimed that APA review was not available in cases where review was provided in the enabling statute--here, the citizen suit provision of the CWA.(48) However, the court rejected this reasoning, noting that ONRC was not entitled to review under the citizen suit provision and would be foreclosed from relief unless the APA allowed judicial review.(49)

      Returning finally to whether Oregon water quality standards had been violated by the North Roaring Devil sale, the Ninth Circuit addressed the issue of whether "minor and transient" violations of state water quality standards were permissible.(50) Although the appellants argued that the Oregon antidegradation policy allowed no de minimis degradations, the Ninth Circuit held that the state law in fact contemplated such variations.(51) Nevertheless, the Ninth Circuit remanded this issue for determination since the district court had not ruled on the issues of whether the applicable standards in fact had been violated or whether the proper instream permits had been obtained.(52)

      This...