# Opposition Brief — Portland Audubon Society v. Lujan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1026

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0755%3A2. Public record. Not legal advice.