Opposition Brief — Portland Audubon Society v. Lujan

y :

No. 89-931 | Jane

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1989

PORTLAND AUDUBON SOCIETY, et al.,

Petitioners,

v.

MANUEL LUJAN, JR., in his official

capacity as Secretary, United States

Department of Interior,

and

NORTHWEST FOREST RESOURCE COUNCIL, et al.,

Respondents.

OSITION OF RESPONDENTS NORTHWEST

RI SE COUNCIL, HUFFMAN AND WRIGHT

N G COM | PANY, FRERES LUMBER COMPANY,

. TIMBER COMPANY, INC., SCOTT

AN’ datas MANUFACTURING

CA TIMBER PRODUCTS, INC., ?

R COMPANY, DOUGLAS COUNTY

TS CO., MEDFORD CORPORATION,

SGE FOREST PRODUCTS, INC.

QUESTION PRESENTED

Whether the Ninth Circuit erred in determining

that section 314 of the 1988 Department of Interior and

Related Agencies Appropriations bill bars judicial review

in this case.

PARTIES BELOW

The following is a complete list of the parties

named in the proceedings below:

Portland Audubon Society, Headwaters, Lane

County Audubon Society, Oregon Natural Resources

Council, The Wilderness Society, Sierra Club, Inc.,

Siskiyou Audubon Society, Central Oregon Audubon

Society, Kalmiopsis Audubon Society, Umpqua Valley

Audubon, and Natural Resources Defense Council, as

plaintiffs-appellants below.

Manuel Lujan, Jr., in his official capacity as

Secretary, United States Department of Interior, as

defendant-appellee below.

Donald Hodel, in his official capacity as Secretary,

United States Department of Interior, was a defendant-

appellee below from 1987-1988.

Northwest Forest Resource Council, Huffman and

Wright Logging Company, Freres Lumber Company, Inc.,

Lone Rock Timber Company, Inc., Scott Timber

ii

Fr a ee ee

Company, Clear Lumber Manufacturing Corp., Yoncalla

Timber Products, Inc., Cornett Lumber Company,

Douglas County Forest Products Company, Medford

Corporation, Rogge Forest Products, Inc., Association of

O&C Counties, and B iton County as defendant-

intervenors-appellees below.”

' The following parent or subsidiary corporation (not reflected in

the list of parties) has an interest in the outcome of this litigation:

Roseburg Forest Products, Inc.

iil

I.

ITT.

CONCLUSION

TABLE OF CONTENTS

SECTION 314 IS A MEASURE OF

LIMITED SCOPE AND DURATION; ITS

INTERPRETATION DOES NOT

PRESENT SIGNIFICANT ISSUES OF

GENERAL IMPORTANCE. ........

THE DECISION OF THE COURT OF

APPEALS DOES NOT CONFLICT WITH

PRECEDENT OF THIS COURT

REGARDING STATUTORY

IN EERE ORES RARREGMEN feces weeceees

NEW LEGISLATION CASTS DOUBT

ON WHETHER RESOLUTION OF THE

ISSUE PRESENTED WILL AFFECT

THE OUTCOME OF THE CASE .....

iV

1]

18

TABLE OF AUTHORITIES

Page

Cases:

Abbott Laboratories v. Gardner,

Bi Be Ney 12

Block v. Community Nutrition Inst.,

Be 12

Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667 (1986) ........ 12

Crawford Fitting Co. v. J.T. Gibbons,

a RE ee 5) ee &

Davis v. United States, 417 U.S. 333

re 13

NLRB v. United Food and Commercial Workers

Union, 484 U.S. 112 (1987) ........... 12

Pierce v. Underwood, _US. _,

Serre 13

Portland Audubon Society v. Hodel,

866 F.2d 302 (9th

8 ee 6, 9, 13, 14

Portland Audubon Society v.

Lujan, 884 F.2d 1233 (9th

NS Ss 60k «0 6 3 0 7, 11, 13-15, 17

Portland Audubon Society v. Lujan,

6 5 rere 8

Page

Cases Continued:

Traynor v. Turnage, 485 U.S. 535

t... | Peer errec ry eee 8

United States v. Erika, Inc., 456 U.S

Bee (IGG ocetccseewen. 12

Statutes and Regulations:

Department of Interior and Related Agencies

Appropriation Act, Fiscal Year 1988,

Pub. L. No. 100-202, 101 Stat.

oy 8. 1) ewe se re wee 5

Department of Interior and Related Agencies

Appropriation Act, Fiscal Year 1989,

Pub. L. No. 100-446, 102 Stat.

oS | ORES Te ' 5

Department of Interior and Related Agencies

Appropriations Act, 1990, Pub. L.

No. 104-Ez] (IRGbP 46s Ub eee se ees 7, 16

Federal Lands Policy Management Act,

43 U.S.C. $ 1701,

et seq. eee a ee 24. 7:83 6

Migratory Bird Treaty Act, 16 U.S.C.

FY fare 2, 5, 7, 15, 18

Paye

Statutes and Regulations Continued:

National Environmental Policy

Act, 42 U.S.C

§ 4321-4370 2, 5-7, 12-14, 14

Oregon and California Lands Act, 43

U.S.C. § 1181 1S, 14

Miscellaneous:

51 Fed. Reg. 30, 718-19 (1986)

S. Rep. No. 100-165, 100th Cong

Sess. 11-12 (1987)

vi

No. 89-931

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1989

PORTLAND AUDUBON SOCIETY, et ai.,

Petitioners,

V.

MANUEL LUJAN, JR., in his official

capacity as Secretary, United States

Department of Interior,

and

NORTHWEST FOREST RESOURCE COUNCIL, et al.,

Respondents.

BRIEF IN OPPOSITION OF RESPONDENTS NORTHWEST

FOREST RESOURCE COUNCIL, HUFFMAN AND WRIGHT

LOGGING COMPANY, FRERES LUMBER COMPANY,

INC., LONE ROCK TIMBER COMPANY, INC., SCOTT

TIMBER COMPANY, CLEAR LUMBER MANUFACTURING

CORP., YONCALLA TIMBER PRODUCTS, INC.,

CORNETT LUMBER COMPANY, DOUGLAS COUNTY

FOREST PRODUCTS CO., MEDFORD CORPORATION,

AND ROGGE FOREST PRODUCTS, INC.

STATEMENT OF THE CASE

This action arises out of a decision by the Oregon

Director of the Bureau of Land Management ("BLM")

not to issue a Supplemental Environmental Impact

Statement ("SEIS”) evaluating the effect on the northern

spotted owl population in western Oregon of offering

some 200 timber sales containing stands of “old growth

timber.” Petitioners brought suit in October, 1987,

alleging that offering the sales without preparing an SEIS

violated the National Environmental Policy Act

("NEPA"), 42 U.S.C. § 4321-4370. Petitioners also

alleged violations of the Oregon and California Lands

Act ("OCLA"), 43 U.S.C. § 1181, the Migratory Bird

Treaty Act ("MBTA"), 16 U.S.C. § 703, et seq., and the

Federal Lands Policy Management Act ("FLPMA"), 43

U.S.C. § 1701, et seq.

Between 1979 and 1983, the Oregon Director of

the BLM adopted ten-year Timber Management Plans

("TMPs”) for each of the BLM’s seven districts in

western Oregon. The BLM prepared an EIS for each of

the seven TMPs as an integral step in the planning

process. The EISs considered the environmental impacts

of various timber management alternatives and

considered the potential effects of logging and habitat

depletion on the northern spotted owl.

Each TMP adopts one of the alternatives

proposed in its accompanying EIS. Each alternative

considers different land use management options ranging

from "maximum timber production” to "emphasis on

protection of natural values.” The alternat've adopted in

the TMP represents a choice among those differing land

use alternatives. While the TMPs designate commercial

forest land under BLM management for several different

uses, the TMPs do not establish timber sale boundaries

or require the BLM to sell any specific amount of

timber. The TMPs decide the land use allocation of the

forest and set the annual allowable harvest for each

forest.

The EISs prepared for the TMPs predicted a

decline in the population of northern spotted owls on

BLM lands because the TMPs called for accelerated

harvesting of certain old growth timber. The EISs

predicted that the depletion of old growth stands would

lead to a decline in the number of owls on BLM lands.

The TMPs reflected this concern and adopted provisions

to protect a specified number of owls.

In 1986, the BLM decided to adopt, by 1990, new

Coordinated Resource Management Plans for western

Oregon, to replace existing TMPs. At about the same

time, pressure from various environmental groups

pointing to recent publications predicting the extinction

of the northern spotted owl prompted the BLM to

prepare an Environmental Assessment ("EA") analyzing

whether new information warranted preparation of an

SEIS to further assess the impact of timber harvests on

the owl. While the EA was being prepared the BLM

provided interim protection for the owl by restricting

timber harvesting within a 2.1 mile radius of a known

Owl site.

On February 3, 1987, the spotted owl EA was

completed. The EA concluded that the new information

on the owl was too preliminary to support preparation of

an SEIS and that the impacts of the planned timber sales

on the northern spotted owl and its habitat were

adequately considered in the original EISs. On April 10,

1987, the BLM issued its decision not to prepare SEISs.

The decision was based on the fact that by the time the

Coordinated Resource Management plans were adopted,

more spotted owl habitat would be available than

predicted under the EISs, and that options for protecting

the owls could be considered under the new management

plans.

On June 10, 1987, petitioners appealed the

decision of the BLM not to prepare a SEIS to the

Interior Board of Land Appeals and requested an

immediate stay of all sales within 2.1 miles of an

identified spotted owl nest. On February 28, 198%, the

Interior Board of Land Appeals upheld the decision not

to prepare a Supplemental EIS.

Four months earlier, on October 19, 1987,

petitioners filed this action alleging violations of NEPA,

the OCLA, MBTA and FLPMA. Defendants

subsequently moved to dismiss petitioners’ complaint on

the grounds that judicial review of petitioners’ claims was

barred by section 314 of Pub. L. No. 100-202, 101 Stat.

1329 (1987), reenacted without change as § 314, Pub. L.

No. 100-446, 102 Stat. 1825 (1988). Section 314 prohibits

challenges to a BLM plan "solely on the basis that the

plan does not incorporate information available

subsequent to the completion of the existing plan,” Id.,

but permits challenges to “any and al! particular activities

to be carried out under existing plans.” Id. On April 20,

1988, the district court granted respondents’ motion to

dismiss concluding that petitioners’ challenges were based

on new information.

On April 21, 1988, petitioners filed a notice of

appeal and moved the Court of Appeals for an injunction

pending appeal. The court granted the injunction on

May 18, 1988, and ordered that the appeal be expedited.

On January 24, 1989, the court affirmed in part the

district court decision and in part reversed it. The court

remanded the case for further proceedings to consider

whether petitioners’ suit was a challenge to “particular

activities” permitted under section 314. Portland

Audubon Society v. Hodel, 866 F.2d 302, 307-08 (9th Cir.

1989), A-32 - A-33 ("PAS I” appearing as Petitioners’

Appendix B at A-24. Citations to "A-n” herein refer to

Petitioners’ Appendix).

On remand, and after further factual development

including a two-week hearing on the parties’ cross-

motions for summary judgment, the district court

determined that petitioners’ non-NEPA claims were

barred by the equitable doctrine of laches and that the

NEPA claim was not subject to judicial review under

section 314 as the suit was not "a challenge to particular

activities to be carried out under existing plans.” The

court granted respondents’ motion for summary

judgment.

Petitioners appealed and, on September 6, 1989,

the Ninth Circuit affirmed the district court’s ruling that

section 314 bars judicial review of the NEPA claim, but

reversed the district court’s holding that the MBTA,

OCLA and FLPMA claims were barred by laches and

remanded the case for trial on those issues. Portland

Audubon Society v. Lujan, 884 F.2d 1233 (9th Cir. 1989)

("PAS II” appearing at A-1, et seq.).

On October 23, 1989, Congress enacted section

318 of the Department of Interior and Related Agencies

Appropriations Act, 1990, Pub. L. No. 101-121 (1989)

("§ 318”). Section 318 was the product of a lengthy

negotiation process among environmentalists, the timber

industry and Congress aimed at bringing an end to the

timber supply crisis. In addition, section 318 was

designed to moot this action and related litigation filed

in the western district of Washington’ and narrowly

restrict timber sale challenges during fiscal 1990. On

November 9, 1989, respondent Lujan moved to dismiss

the case on the grounds that the action was rendered

moot by section 318, others joined thereafter. On

December 21, 1989, the district court granted

2 Seattle Audubon Society v. Robertson, Civ. No. 99-19),

Washington Contract Logger: Assoc., et al. v. Robertson, Cre No. 99-F

respondents’ motion to dismiss, determining that section

318 rendered the case moot. Portland Audubon Society

v. Lujan, No. 87-1160-FR, Op. at 10 (D. Or. December

21, 1989). |

On December 5, 1989, petitioners filed this

Petition for Writ of Certiorari to the Ninth Circuit

challenging that portion of the Court of Appeals’

decision which holds that section 314 bars petitioners’

NEPA claims.

REASONS FOR DENYING THE WRIT

I. SECTION 314 IS A MEASURE OF LIMITED

SCOPE AND DURATION; ITS

INTERPRETATION DOES NOT PRESENT

SIGNIFICANT ISSUES OF GENERAL

IMPORTANCE.

The decision of the Ninth Circuit in this case does

not present issues of sufficient significance to warrant

review by this court. The decision does not implicate

important principles regarding the interpretation of

federal statutes. It does not create any division of

authority among the circuits. Compare Traynor v.

Turnage, 485 U.S. 535 (1988). Nor does it involve

provisions of federal law which have been, or are

intended to be, enduring. See Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437 (1987). Rather, the decision

involves the application by a single circuit of language

temporarily barring challenges to management plans

which affect only western Oregon and which are

scheduled to be replaced. See discussion, supra, at 4.

Petitioners would have this Court believe that the

scope and significance of the Ninth Circuit’s decision

somehow exceeds the scope and duration of section 314

itself. But this contention is transparently false. The

language employed by section 314, as the Court of

| Appeals noted, is “extraordinary.” PAS I at A-29° The

| language bars challenges to TMPs but not to particular

| activities under the TMPs. This unique language

3 The pertinent portion of section 314 provides:

Nothing shall limit judicial review of

particular activities on the lands:

Provided, however, That there shall

be no challenges to any existing

plan on the sole basis that the plan

in its entirety is outdated, or in the

case of the Bureau of Land

Management, solely on the basis

that the plan does not incorporate

information available subsequent to

the completion of the existing plan:

Provided further, That any and all

particular activities to be carried

out under existing plans may

nevertheless be challenged.

= .

10

precludes decisions concerning section 314 from having

any important general application.

The circumstances giving rise to the adoption of

section 314 are also unique. The transition by BLM

from one 10-year planning cycle to the next was being

disrupted by a “precipitous increase in timber sale

appeals and threats of litigation, especially on BLM lands

in western Oregon.” S. Rep. No. 100-165, 100th Cong.,

Ist Sess. 11-12 (1987). As a consequence, BLM was

hindered in its “ability to prepare and implement new

plans....” Jd. Section 314 was "intended to prevent

the existing management plans from being enjoined in

their entirety, solely on the basis that they are outdated,

and allow activities to continue under existing plans

pending the completion of new plans.” /d.

The transitory nature of the problem section 314

was intended to address underscores the ephemeral

nature of the issue this Court is asked to address. Work

on the new BLM plans has already begun. See, eg., 51

Fed. Reg. 30, 718-19 (1986). The plans will consider

various options for management of the forest resources

in western Oregon. They will be informed by new

analyses of the environmental impacts--including impacts

on spotted owls--likely to be associated with various

11

management options. Should the BLM fail sufficiently

to consider those impacts, that failure may form the basis

of new challenges to the new plans.

Additional review of section 314, as urged by the

petitioners, will not speed that process. It will not clarify

that process. And petitioners do not intend by this

action to do either. Instead, they seek to recast the

balance reflected in TMPs adopted a decade ago and to

shelve those existing plans while they pursue the change.

See PAS Il at A-17.

With or without petitioners’ challenges, however,

the BLM planning process goes forward. As it does, the

significance of section 314 continues to fade, its

“extraordinary” language grows increasingly narrow in its

application, and the precedential value of its

interpretation disappears. Even now, the question

presented by the Petition is not sufficiently important to

merit review by this Court.

II. THE DECISION OF THE COURT OF APPEALS

DOES NOT CONFLICT WITH PRECEDENT OF

THIS COURT REGARDING STATUTORY

INTERPRETATION.

Petitioners assert that the decision of the Ninth

Circuit is in conflict with decisions of this Court

12

recognizing a presumption in favor of judicial review of

administrative actions. Petitioners are wrong.

While it is true that this Court has articulated a

presumption favoring judicial review of administrative

decisions, Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667, 670 (1986); Block v. Community

Nutntion Inst., 467 U.S. 340, 350 (1984); Abbott

Laboratones v. Gardner, 387 U.S. 136, 140 (1967), that

presumption is rebuttable. Where Congress’ intention to

preclude review is “fairly discernible” from express

language or otherwise, that intention has been given

effect by this Court. Block v. Community Nutrition Inst.,

467 U.S. at 349 (specific language or specific legislative

history will overcome presumption favoring review);

NLRB v. United Food and Commercial Workers Union,

484 U.S. 112 (1987) (Gudicial review inconsistent with

statutory scheme); United States v. Erika, Inc., 456 U.S.

201, 209 (1982) (absence of provision for review within

precise statutory scheme provides “persuasive reason to

believe” that judicial review is not intended).

Applying this Court's precedents, the Ninth Circuit

properly concluded that the express language and

legislative history of section 314 bar review of claims

such as those petitioners have asserted under NEPA.

13

PAS I! at A-18. The court based its decision not only on

careful c@fsideration of the section’s language and its

legislative history, but also on a factual analysis of the

nature of the petitioners’ claim. In PAS /, the same

panel of the Ninth Circuit which decided the instant

matter concluded that "[t]here is little doubt about the

intent of the sponsors of section 314. The sponsors

intended to stop this particular lawsuit... .” PAS / at

A-31.* The issue for the court was whether Congress

had expressed that intention clearly enough to

accomplish its goal. /d. The determination of that issue,

in the appellate court's view, depended upon whether the

* Contrary to petitioners’ assertions, Pet. at 12-15, the court in

PAS Il did not depart from its views as to Congressional intent

expressed in PAS I]. Compare PAS I at A-29 with PAS II at A-\*

Even if this were not true, a conflict of opinion within a4 singje circus!

would not provide sufficient reason to grant the writ. See Davis s

United States, 417 U.S. 333, 334 (1974). Moreover, because the same

panel decided PAS / and PAS II, no intra-circuit conflict can he said

to exist at all. Petitioners’ additional argument that the circuit court

was barred from referring to the legislative history accompanying the

1988 enactment of § 314, Pet. at 16, is also baseless. No settled

judicial interpretation of section 314 contradicts the statements of

legislative intent accompanying the 1988 reenactment. C/ Pierce +

Underwood, US. _, 108 S.Ct. 2541, 2551 (198%). In addition, the

1987 legislative history 1s consistent with 1988 legislative history as wel!

as the Ninth Circuit's decision. Finally, Petitioners apparently concede

that the question they present is whether the 1985 enactment of

section 314 bars the NEPA claim they have raised. Pet. at i. Thus the

intention of Congress in reenacting thal measure is relevant to the

imterpretation of section 314.

14

petitioners’ “challenge is to the plan or to particular

activities.” PAS I at A-37.

The court remanded the matter to the district

court with instructions that it determine whether

petitioners’ challenge to approximately 200 BLM timber

sales constituted a challenge to "particular activities” (and

therefore fell outside the bar of section 314) or

constituted a challenge to an existing plan and was

barred by the provision. PAS / at A-30 - A-35, PAS II at

A-18. After remand, the Ninth Circuit upheld the factual

determination of the district court that the petitioners’

NEPA claim was directed to the BLM plan:

Here, if plaintiffs were to

succeed on the merits of

their NEPA claim, BLM

would be required to

suspend its management

plans and prepare a

supplemental EIS, addressing

concerns about the northern

spotted owl.... In this case,

a supplemental EIS would

consider the possible land

use alternatives of

designating more or less old-

growth forest for “intensive

timber management” or

reserving it for spotted owl

habitat.... That intentional

trade-off [reflected in

a

15

existing BLM plans] of owls

for economic gain was

precisely the land _ use

decision which is_ being

challenged by plaintiffs.

PAS II at A-17.

Based on its extensive review, and the findings of

the district court, the Court of Appeals concluded that

there “exists not only persuasive evidence of

congressional intent, but an explicit statutory command

precluding review.” PAS I/ at A-18. Its analysis was

both directed and controlled by decisions of this Court.

Its conclusion conflicts with no decision of this Court.

Ill. NEW LEGISLATION CASTS DOUBT ON

WHETHER RESOLUTION OF THE ISSUE

PRESENTED WILL AFFECT THE OUTCOME

OF THE CASE.

The Ninth Circuit’s decision did not hold that

section 314 barred all of petitioners’ claims in this case.

PAS II at A-19. The court determined that claims based

on the OCLA, the FLPMA and the MBTA survived.

On remand, however, the district court recently

dismissed these claims as well, relying on section 318 of

the Department of Interior and Related Agencies

Appropriations Act, Fiscal Year 1990, Pub. L. No. 101-

16

121 (1989) ("§ 318”). See discussion, supra, at 4.

Section 318 provides in pertinent part:

(a)(2) The Bureau of Land

Management shall offer such

volumes as are required in

fiscal year 1990 to meet an

aggregate timber sale level

of one billion nine hundred

million board feet for fiscal

years 1989 and 1990 from its

administrative districts in

western Oregon.

(b)(S) No_ timber - sales

offered pursuant to this

section on Bureau of Land

Management lands in

western Oregon known to

contain northern spotted

owls shall occur within the

110 areas identified in the

December 22, 1987

agreement, except sales

identified in said agreement,

between the Bureau of Land

Management and the Oregon

Department of Fish and

Wildlife. Not later than

thirty days after enactment

of this Act, the Bureau of

Land Management, after

consulting with the Oregon

Department of Fish and

17

Wildlife and the United

States Fish and Wildlife

Service to identify high

priority spotted owl area

sites, shall select an

additional twelve spotted owl

habitat areas. No timber

sales may be offered in the

areas identified pursuant to

this subsection during fiscal

year 1990.

(b)(6)(A) . . . Congress

hereby determines and

directs that management of

areas according to

subsections . . . (b)(5) of this

section on .. . Bureau of

Land Management lands in

western Oregon known to

contain northern spotted

owls is adequate

consideration for the purpose

of meeting the statutory

requirements that are the

basis for . . . the case

Portland Audubon Society et

al, v. Manual Lujan, Jr.,

Civil No. 87-1160-FR. The

guidelines adopted by

subsection . . . (b)(5) of this

section shall not be subject

to judicial review by any

court of the United States.

18

By adopting section 318, Congress has declared

that BLM management of western Oregon lands meets

the requirements of NEPA, the OCLA, the FLPMA and

the MBTA if that management is carried out in

compliance with section 318. Section 318 has completely

disposed of this action for fiscal year 1990 without

regard to the interpretation of section 314. There is no

reason to further review section 314.

CONCLUSION

For the foregoing reasons, the Petition for Writ

of Certiorari should be denied.

Respectfully submitted,

Mark C. Rutzick *

Douglas C. Blomgren

Cynthia L. Hull

PRESTON THORGRIMSON

SHIDLER GATES & ELLIS

3200 U.S. Bancorp Tower

111 SW Fifth Avenue

Portland, OR 97204-3635

Telephone: (503) 228-3200

*Counsel of Record

January 6, 1990