Petition for Writ of Certiorari — Douglas County v. Babbitt

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Supreme Court, U.S.

(") FILED

95-871 SEP 1 - 1995

No.

OFFICE OF 3 CLEA

In the Supreme Court of the United States

OCTOBER TERM, 1994

DOUGLAS COUNTY, OREGON, PETITIONER

BRUCE BABBITT, SECRETARY OF THE INTERIOR,

HEADWATERS, INC. AND

UMPQUA VALLEY AUDUBON SOCIETY, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK C. RUTZICK*

ALISON KEAN CAMPBELL

MARK C. RUTZICK LAW FIRM

A PROFESSIONAL CORPORATION

500 Pioneer Tower

888 S.W. Fifth

Portland, Oregon 97204

(503) 499-4573

RON YOCKIM

548 S.E. Jackson

Suite #7

Post Office Box 2456

Roseburg, Oregon 97470

(503) 957-5900

Counsel for Douglas

County, Oregon

* Counsel of Record

QUESTIONS PRESENTED

The Ninth Circuit ruled that the Secretary of the Interior

could designate 6,887,000 acres of critical habitat for the

northern spotted owl under the Endangered Species Act

("ESA") without complying with the National Environmental

Policy Act ("NEPA").

The questions presented are:

|. Whether ESA procedures for designating critical

habitat implicitly "displace" NEPA requirements, even

though there is no conflict between the two statutes and this

Court and six circuits have held that federal agencies must

comply with NEPA unless there is an irreconcilable conflict

with another statute.

2. Whether NEPA contains an implied exemption for

federal actions "that preserve the physical environment"

which excuses the Secretary from NEPA compliance on a

critical habitat designation regardless of its environmental

effects.

(i)

PARTIES TO THE PROCEEDING

Douglas County, Oregon, a municipal corporation and

political subdivision of the state of Oregon, was the appellee

in the court of appeals. Appellants in the court of appeals

were Bruce Babbitt, Secretary of the Interior, defendant in

the district court, and Headwaters, Inc. and Umpqua Valley

Audubon Society, defendant-intervenors in the district court.

In the district court Coos County, Oregon, Josephine County,

Oregon and Klamath County, Oregon were plaintiff-interve-

nors, but they did not participate in the court of appeals.

TABLE OF CONTENTS

Page

OPINIONS BELOW .........

JURISDICTION .......

STATUTORY AND REGULATORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

ESA critical habitat . .

WO Ns 30 owe ces

Ee ) at Oo ee ee

72) « aa a

WS ok clk bret).

a. The northern spotted owl critical habitat proposal

b. Douglas County's involvement

c. The district court decision

d. The Ninth Circuit decision .

Related litigation in another circuit

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT DECISION CONFLICTS WITH THIS

COURT'S DECISION IN FLINT RIDGE AND WITH SIX

OTHER COURTS OF APPEALS THAT HAVE REQUIRED

Il.

III.

FEDERAL AGENCIES TO COMPLY WITH NEPA UNLESS

THERE IS AN IRRECONCILABLE CONFLICT WITH

Se Ec & Cie a eS ok ooo Rhee)

The decision below conflicts with Flint Ridge ............

The decision below conflicts with rulings of six other circuits .

The decision below cannot be reconciled with Flint Ridge or the

decisions in the six other circuits........ eocg dip e aaa Hh

THIS CASE PRESENTS AN IMPORTANT AND RECURRING

ISSUE OF NATIONAL SIGNIFICANCE ..............

THE DECISION BELOW IS WRONGLY DECIDED ......

No case law support.............. , edn oon nis See

Se IY WN oo iis hn ae wae 6 oes

No congressional ratification of conflicting agency interpre-

GEE eA ain 6 5-6-» 00 0 0b 0 bw 0 ale S 0-0-1 te ee eee

NE 5g tal ne ay os 5A old Ws ik Oks aon ka Pe

PEP ET Ee Te ree eer ore

IV. THE COURT OF APPEALS' ALTERNATIVE RULING

EXCUSING NEPA COMPLIANCE FOR ACTIONS THAT

"PRESERVE THE ENVIRONMENT" SIMILARLY CON-

FLICTS WITH FLINT RIDGE AND OTHER COURT OF

FO PO Oe Oe ee

The Secretary did not join this argument ...............

The court exempted the designation in this case from NEPA

despite recognizing its environmental impacts ...........

C. NEPA requires agencies to prepare an EA to determine if a

project has significant environmental impacts ........... . 22

D. No statutory NEPA exemption exists for actions that preserve the

GU ce ecce cent ce Der eee ‘sae

CARWLAMUY i ey yeas ah acatGag eee hate ie 24

TABLE OF AUTHORITIES

Page

Cases:

Andrus v. Glover Construction Co..

446 U.S. 608 (1980) |... fo: Sher Lees, ee ae

Brown v. Gardner.

— U.S. —. 115 S. Ct. 552.

130 L. Ed. 2d 462 (1994) hae? Py? 2y

Calvert Cliffs' Coord. Com.

v. United States A.E. Com'n.

449 F.2d 1109 (D.C. Cir. 1971)... ar uel eer eesti 9,12

Catron County Board of Commissioners

v. U.S. Fish and Wildlife Service,

Civil No. 93-730-HB

(D.N.M. slip op. October 13, 1994) Pee dc eee ot ae Se

Central Bank of Denver, N.A.

v. First Interstate Bank of Denver.

511 U.S. —, 114 S. Ct. 1439,

pee & Rl. eee ee ee FIPS 4 19

Concerned About Trident v. Rumsfeld.

555 F.2d 817 (D.C. Cir. 1977). Pe |

County of Josephine v. Watt,

539 F. Supp. 696 (N.D. Cai. 1982) pe kde ern ee ee he

Davis v. Morton,

469 F.2d 593 (10th Cir. 1972) ..

Environmental Defense Fund

v. Tennessee Val. Auth.,

468 F.2d 1164 (6th Cir. 1972)

Flint Ridge Development Co.

v. Scenic Rivers Ass'n of Oklahoma,

426 U.S. 776 (1976)

Hogan v. Brown,

507 F. Supp. 191 (W.D. Ark.).

aff'd, 665 F.2d 849 (8th Cir. 1981)

Hovsons, Inc. v. Secretary of the

Interior, 711 F.2d 1208 (3d Cir. 1983)

Izaak Walton League of America v. Marsh.

655 F.2d 346 (D.C. Cir. 1981)

Jones v. Gordon,

792 F.2d 821 (9th Cir. 1986)

Limerick Ecology Action v. U.S.

Nuc. Reg. Com'n,

869 F.2d 719 (3d Cir. 1989) ..

Marsh v. Oregon Natural Resource Council,

490 U.S. 360 (1989) _......

Merrell v. Thomas,

807 F.2d 776 (9th Cir. 1986),

cert. denied 484 U.S. 848 (1987) .

Pacific Legal Foundation v. Andrus,

657 F.2d 829 (6th Cir. 1981)

9. 10, 12. 16

9, 12

6-15, 20, 23

10. 12

11, 12. 16

15, 16

vil

Public Serv. Co. v. US

Nuclear Regulatory Com'n.

582 F.2d 77 (ist Cir.),

cert. denied 439 U.S. 1046 (1978) 10-12

Robertson v. Methow Valley Citizens

Council, 490 U.S. 332 (1989) 16

Sabine River Authority v. US

Department of Interior.

951 F.2d 669 (Sth Cir ),

cert. denied sub nom

Texas Water Conservation Ass'n v

Department of the Interior.

— US. —, 113 S. Ct. 75 (1992) 22

State of Louisiana v. Federal

Power Commission.

503 F.2d 844 (Sth Cir. 1974) 10, 12

lexas Committee on Natural Resources

v. Bergland.

$73 F.2d 201 (Sth Cir ).

cert. denied 439 U.S. 966 (1978) 10, 12

Watt v. Alaska.

451 U.S. 259 (1981) ; 16

Weinberger v. Catholic Action of Hawaii.

454 U.S. 139 (1981) 15

Statutes:

25 U.S.C. 415 )

28 USC 1331 5

Endangered Species Act,

16 U.S.C. 1531-44 2, 3. 5, 6, 11, 14-19

Viii

Federal Insecticide, Fungicide, and

Rodenticide Act,

7 U.S.C. 136-136y ....... ) 14

National Environmental Policy Act.

42 U.S.C. 4321-61 ...... reer Whe enter eao tn 3-23

The Administrative Procedures Act.

Oe See 6 oss ae Ee Re ee ere, oe 15

Regulations:

oe OR era oa ad Senin gies ees Se

Legislative History:

Gee ae er eres, Pr wee es

120 Cong. Rec. 21589 (July 19, 1978) ............ 17

H. Rep. 1804 (95th Cong., 2d Sess.)

reprinted at [1978] U.S. Code. Cong. &

i I I 6 eo 5 a Ss ack cao ob wala a

Miscellaneous:

OS We. Bees, SR SER Gy BO, TOD. ogc ac pierce Sees cease: 4

48 Fed. Reg. 49,244 (October 25. 1983) ............ oct

$7 Fed. Reg. 37,051 (December 2, 1992) .... 2... cee cues 4

58 Fed. Reg. 68,543 (December 28, 1993) .................. 4

In the Supreme Court of the United States

October Term, 1994

No.

Douglas County, Oregon, Petitioner

Bruce Babbitt, Secretary of the Interior,

Headwaters, Inc. and

Umpqua Valley Audubon Society, Respondents

Douglas County, Oregon! petitions for a writ of certio-

rari to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Appendix ("App."),

infra, 1a-28a) is reported at 48 F.3d 1495 (9th Cir. 1995).

The opinion of the district court (App., infra, 29a-58a) is

reported at 810 F. Supp. 1470 (D. Or. 1992).

' Douglas County, a municipal corporation and political subdivision

of the state of Oregon, has no parent company or subsidiaries.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

February 24, 1995. A petition for rehearing was denied on

June 5, 1995. App., infra, 59a-60a. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Sections 3(5), 4(a)(3),(b)(2), (b)(5), (b)(6)(A), (b)(6)(C)

and 7(a)(2) of the Endangered Species Act, 16 U.S.C.

1532(5), 1533(a)(3), (b)(2), (b)(5), (b)(6)(A), (b)(6)(C), and

1536(a)(2), and Section 102(2)(C) of the National Environ-

mental Policy Act, 42 U.S.C. 4332(2)(C), are reprinted at

App., infra, 61a-67a.

STATEMENT OF THE CASE

1. ESA critical habitat.

The U.S. Fish and Wildlife Service ("F WS") implements

the Endangered Species Act, 16 U.S.C. 1531 et seq.

("ESA"), along with the National Marine Fisheries Service

("NMFS"). Under the ESA, FWS or NMFS must designate

"critical habitat" for species listed as threatened or endan-

gered by adopting a rule either concurrent with listing or

within two years after listing. 16 U.S.C. 1533(b)(6)(C),

App. 64a.

Critical habitat means "specific areas . . . on which are

found those physical or biological features (I) essential to the

conservation of the species and (II) which may require

special management considerations or protections." 16

U.S.C. 1532(5)(A), App. 61a. The Secretary has consider-

able discretion in designating the critical habitat: "The

Secretary may exclude any area from critical habitat if he

determines that the benefits of such exclusion outweigh the

benefits of specifying such area as part of the critical habitat,

unless [extinction will result].". 16 U.S.C. 1533(b)(2), App.

62a.

Once critical habitat is designated, every federal agency

must "insure that any action authorized, funded, or carried

Out by such agency .. . is not likely to. . . result in the

destruction or adverse modification of [critical habitat]." 16

U.S.C. 1536(a)(2), App. 65a.

To designate critical habitat, FWS or NMFS is required

under ESA to publish a notice and text of the proposed rule

in the Federal Register; give actual notice to affected states,

counties, foreign states and scientific organizations; publish

a summary of the rule in a newspaper of general circulation

in each affected area; hold a publ'c hearing if requested:

accept public comment on the proposed rule and issue a final

rule. 16 U.S.C. 1533(b)(5), (6), App. 62a-64a.

2. NEPA.

NEPA requires federal agencies to include in every major

federal action significantly affecting the quality of the human

environment an “environmental impact statement” ("EIS")

describing the environmental impact of the action, adverse

environmental effects, alternatives to the proposed action and

other information. 42 U.S.C. 4332(2)(C), App. 66a.

The Council on Environmental Quality ("CEQ") has

issued binding regulations detailing the required NEPA

process. 40 C.F.R. Part 1500. Unless an action is "categor-

ically excluded," 40 C.F.R. 1501.4(a), an agency must

prepare an environmental assessment ("EA") for every

action, 40 C.F.R. 1501.4(b), to determine if an EIS is

required. The EA must include alternatives. 40 C.F.R.

1508.9(b). If the agency finds in the EA that the proposed

action is a major federal action significantly affecting the

quality of the human environment, an EIS is required. 40

C.F.R. 1501.4(c).

3. Administrative practice under NEPA for criti-

cal habitat designations.

a. NMFS. In 1980 NMFS announced the policy that

critical habitat decisions "will normally require preparation

of an EA. If the EA reveals that the action will have

significant environmental impacts, preparation of an EIS is

required.” 45 Fed. Reg. 49,312, 49,315 (July 24, 1980).

NMFS continues to prepare EAs for major critical habitat

proposals. See 57 Fed. Reg. 57,051, 57,055 (December 2,

1992) (proposal to designate critical habitat for Snake River

salmon); 58 Fed. Reg. 68,543, 68,544 (December 28, 1993)

(same).

b. FWS. Until 1983 FWS also prepared EAs on listing

and critical habitat proposals, but in 1983 announced that it

would no longer do so. 48 Fed. Reg. 49,244 (October 25,

1983). It has maintained that practice since 1983.

4. This case.

a. The northern spotted owl critical habitat proposal.

In May 1991 the FWS published a proposal to designate

11,639,195 acres of critical habitat in Oregon, Washington

and California for the northern spotted owl. App. Sa. In

August 1991 FWS published a revised proposal to designate

8,240,160 acres of critical habitat for the owl. Jd. On

January 15, 1992 FWS published a final rule designating

6,887,000 acres of federal land in the three states as critical

habitat for the owl. /d.

The initial May 1991 proposal contained an announce-

ment that the FWS was not required to prepare an EA or EIS

for the decision, App. Sa, and that it would not. Jd. No EA

or EIS was ever prepared on the critical habitat designation.

App. 6a.

b. Douglas County’s involvement. Douglas County is

located in heavily forested southwestern Oregon within the

range of the northern spotted owl. Its 4,140 acres of county-

owned lands are contiguous to or within national forest land,

64% of its annual operating budget is derived from federal

timber sale receipts, and much of its property tax base is tied

to the forest products industry.

Douglas County commented on the May 1991 proposal,

urging the FWS to comply with NEPA. App. 3la. Douglas

County particularly urged the FWS to develop “alternatives

to the proposed action," as required in 42 U.S.C. 4332(2)(C)

and 42 U.S.C. 4332(E), which would lessen adverse environ-

mental, economic and social impacts on Douglas County.

Upon being advised that FWS did not intend to comply with

NEPA, Douglas County thereafter sued the Secretary of the

Interior in the district court for the district of Oregon seeking

declaratory and injunctive relief based on the FWS” failure

to comply with NEPA in making the critical habitat designa-

tion. App. 33a.’

c. The district court decision. Douglas County won in

the district court. App. 57a. The district court ruled that

Douglas County has standing to sue, App. 40a, and ruled on

the merits that the FWS is obligated to comply with NEPA

before making a critical habitat designation. App. 56a. The

court rejected the agency’s argument that the ESA implicitly

* Jurisdiction was premised on 28 U.S.C. 1331.

amended or repealed NEPA to excuse compliance on critical

habitat decisions.

The district court relied on this Court’s decision in Flint

Ridge Development Co. v. Scenic Rivers Ass'n of Oklahoma

("Flint Ridge"), 426 U.S. 776, 787-88 (1976), to hold that

"all federal agencies are required to comply with NEPA

when considering major federal actions that significantly

affect the quality of the human environment unless there is

a clear and unavoidable statutory conflict." App. 56a.

Finding no such conflict, the court held that NEPA applies.

App. 57a.

d. The Ninth Circuit decision. The Ninth Circuit

agreed that Douglas County has standing, App. 13a, but

reversed the district court on the merits. App. 28a. The

court of appeals acknowledged that there is no express or

irreconcilable statutory conflict between NEPA and the ESA

critical habitat process. App. iSa. Nonetheless, the court

ruled that NEPA does not apply because in amending the

ESA critical habitat process in 1978 Congress had implicitly

"displaced" and therefore repealed NEPA with respect to

critical habitat designations. App. 16a. The court also

found that NEPA compliance is unnecessary in this case

because ESA and NEPA further similar environmentally

protective goals. App. 25a. Alternatively, the court ruled

that NEPA does not apply to critical habitat designations as

a matter of law because it implicitly exempts actions "that

preserve the physical environment." App. 24a.

5. Related litigation in another circuit.

Based on the district court decision in this case, the

district court for the district of New Mexico has enjoined the

FWS from designating critical habitat for two listed species

in that state until it complies with NEPA. Catron County

Board of Commissioners v. U.S. Fish and Wildlife Service,

Civil No. 93-730-HB (D.N.M. slip op. October 13, 1994)

("[t]he Court finds the analysis in Douglas County persuasive

....'). An appeal to the court of the appeals for the Tenth

Circuit is pending. Catron County Board of Commissioners

v. U.S. Fish and Wildlife Service, No. 94-2280. Briefing is

complete, but oral argument has not been scheduled.

REASONS FOR GRANTING THE WRIT

This Court should grant the writ of certiorari because the

court of appeals decision is inconsistent with this Court’s

ruling in Flint Ridge and conflicts with six other courts of

appeals on the issue of a federal agency’s duty to comply

with NEPA in the absence of irreconcilable conflict with

another statute, the case presents an important and recurring

issue of national significance, and the decision below was

wrongly decided.

I. THE NINTH CIRCUIT DECISION CON-

FLICTS WITH THIS COURT’S DECISION

IN FLINT RIDGE AND WITH SIX OTHER

COURTS OF APPEALS THAT HAVE RE-

QUIRED FEDERAL AGENCIES TO COM-

PLY WITH NEPA UNLESS THERE IS AN

IRRECONCILABLE CONFLICT WITH

ANOTHER STATUTE.

The court of appeals in this case applied a rule of

interpretation of NEPA that is flatly inconsistent with this

Court’s decision in Flint Ridge, and is in conflict with the

courts of appeals for the District of Columbia, First, Third.

Fifth, Sixth and Tenth circuits. This Court should grant

certiorari to resolve this conflict.

In Flint Ridge, this Court addressed an agency’s claim

that it could not comply both with NEPA and another statute.

This Court found that NEPA’s direction that all agencies

comply "to the fullest extent possible,” 42 U.S.C. 4332, "is

neither accidental nor hyperbolic:"

A. The decision below conflicts with Flint Ridge.

"the purpose of the new language is to make

it clear that each agency of the Federal Gov-

ernment shall comply with the directives set

out in [§ 102(2)] unless the existing law

applicable to such agency’s operations ex-

pressly prohibits or makes full compliance

with one of the directives impossible... ."

115 Cong. Rec. 39703 (1969)... .

Section 102 recognizes, however, that where a clear

and unavoidable conflict in statutory authorization

exists, NEPA must give way. . .. And so the ques-

tion we must resolve is whether, assuming an envi-

ronmental impact statement would otherwise be

required in this case, requiring the Secretary to

prepare such a statement would create an irrecon-

cilable and fundamental conflict with her duties

under [another statute].

Id., 426 U.S. at 787-88 (quoted italics in original, emphasis

added). Flint Ridge interprets NEPA to direct that an agency

can be excused from complying with NEPA only where "an

irreconcilable and fundamental conflict" exists with another

Statute. The court found such a conflict in that case due to

a 30 day decision deadline in the other statute which did not

allow time for an EIS, and held NEPA compliance excused.

Id. at 788-91.

B. The decision below conflicts with rulings of six other

circuits.

The other courts of appeals have uniformly agreed, both

before and after Flint Ridge, that NEPA’s "to the fullest

extent possible” directive requires agencies to comply with

NEPA unless a direct and unresolvable conflict exists with

another statute. The earliest such ruling came from the D.C.

Circuit in Calvert Cliffs’ Coord. Com. v. United States A.E.

Com'n, 449 F.2d 1109 (D.C. Cir. 1971), which held that

NEPA must be complied with "unless there is a clear conflict

of statutory authority,” id. at 1115 (emphasis in original,

footnote omitted), adding that only when "specific statutory

obligations . . . conflict with NEPA do agencies have a right

. . . to dilute their compliance with the full letter and spirit

of the Act.” /d. at 1115 n.12.

Other circuits followed Calvert Cliffs’. In Environmental

Defense Fund v. Tennessee Val. Auth., 468 F.2d 1164 (6th

Cir. 1972), the court rejected an agency claim of implicit

repeal of NEPA by a later appropriations act, holding that

"section 102 [of NEPA] exempts agencies from compliance

only when other statutory authority under which the agencies

are proceeding expressly precludes compliance." /d. at 1176

(emphasis added).

In Davis v. Morton, 469 F.2d 593 (10th Cir. 1972), the

court rejected an agency’s argument that an amendment to 25

U.S.C. 415, requiring the Secretary of the Interior to

consider "the effect on the environment” before approving a

lease on Indian land, implicitly repealed NEPA, holding that

"unless the obligations of another statute are clearly mutual-

ly exclusive with the mandates of NEPA. the specific

requirements of NEPA will remain in force." /d. at 598

(emphasis added).

In State of Louisiana v. Federal Power Commission, 503

F.2d 844 (Sth Cir. 1974), the court rejected the agency’s

attempt to avoid complying with NEPA on a natural gas

curtailment plan, holding that "an agency contemplating

taking an action that will have a significant effect on the

environment must file the best impact statement possible

unless filing will conflict with a statutory duty. In the

absence of a statutory conflict, some sort of impact state-

ment must be drafted." /d. at 875 (emphasis added).

Following Flint Ridge, the courts of appeals continued

with the same view of NEPA fortified by this Court’s

treatment of the issue. In Concerned About Trident v.

Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977), the court rejected

the agency’s plea to create an implied national defense

exception to NEPA, holding that "[t]he only time that a

federal agency can avoid [NEPA] is when a clear and

unavoidable conflict in statutory authority exists." /d. at

823 (emphasis added); accord, Izaak Walton League of

America v. Marsh, 655 F.2d 346, 367 (D.C. Cir. 1981)

(applying Flint Ridge to hold that "clear conflict must be

found before NEPA gives way").

In Texas Committee on Natural Resources v. Bergland,

573 F.2d 201 (Sth Cir.), cert. denied 439 U.S. 966 (1978),

the court applied Flint Ridge to reject an agency’s plea to

avoid NEPA compliance in adopting new forest management

rules, holding that "[t]he conflict between the agency’s

organic statute and NEPA must be both fundamental and

irreconcilable.” Jd. at 206.

The First Circuit agreed in Public Serv. Co. v. U.S.

Nuclear Regulatory Com’n, 582 F.2d 77 (ist Cir.), cert.

denied 439 U.S. 1046 (1978), holding that NEPA applies

"except when specifically excluded by statute or when

existing law makes compliance with NEPA impossible." /d.

at 81. The Third Circuit concurred in Limerick Ecology

Action v. U.S. Nuc. Reg. Com’n, 869 F.2d 719 (3d Cir.

1989), rejecting the agency’s claim that its own statute made

NEPA compliance unnecessary, holding that "compliance

with NEPA is required unless specifically excluded by statute

or existing law makes compliance impossible." /d. at 729.

Indeed, in the past the Ninth Circuit had itself seemed to

adopt this view. In Jones v. Gordon, 792 F.2d 821 (9th Cir.

1986), the court enforced NEPA in the face of a statute

imposing a short deadline because NEPA compliance, though

difficult, was not impossible. It observed that "Flint Ridge

applies only when a conflict is ‘clear and unavoidable’ and

‘irreconcilable and fundamental.’" Jd. at 826.

C. The decision below cannot be reconciled with Flint

Ridge or the decisions in the six other circuits.

The decision by the court of appeals in this case directly

conflicts with Flint Ridge and the six courts of appeals that

have followed its "irreconcilable conflict" rule. The court

below instead applied a very different interpretative rule,

which it labelled "displacement," to find an implied repeal of

NEPA by ESA.

The district court had ruled that "NEPA applies to every

major federal action absent a clear and unavoidable statutory

conflict," App. 56a, and, finding no conflict, enforced

NEPA. The court of appeals reversed. Stating "[w]e do not

think this is an accurate description of Ninth Circuit law."

App. 27a. The court implicitly dismissed Flint Ridge, which

had been followed in its own earlier decision in Jones v.

Gordon, 792 F.2d 821, by commenting "in Jones we do not

state that the finding of irreconcilable conflict is the only way

to avoid the NEPA provisions ... ." App. 21a.

This is the key error in the court of appeals decision

which brings it into conflict with Flint Ridge and the six

other courts of appeals. In Flint Ridge, this Court states that

existence of "an irreconcilable and fundamental conflict” is

"the question we must resolve." 426 U.S. at 788 (emphasis

added). The court of appeals, however, improperly held that

this issue is not determinative of whether compliance with

NEPA is required.

In Calvert Cliffs’, Environmental Defense Fund, Davis,

State of Louisiana, Concerned About Trident, Izaak Walton

League of America, Texas Committee on Natural Resources,

Public Serv. Com’n and Limerick Ecology Action, six differ-

ent courts of appeals directly held that "irreconcilable

conflict" is the only basis for avoiding NEPA compliance,

and ordered agencies to comply with NEPA because no such

conflict existed. See supra at 9-11.

The decision by the court of appeals below conflicts with

all of these decisions. It also directly conflicts, on the ESA

critical habitat issue, with the district of New Mexico’s

decision in Catron County Board of Commissioners v. U.S.

Fich and Wildlife Service, Civil No. 93-730-HB.’

{n the Ninth Circuit federal agencies are now free to

assert NEPA exemptions in the absence of any irreconcilable

conflict, based on vague “displacement” arguments like that

accepted here. The vast amount of public land within the

> While a Tenth Circuit decision in Catron County affirming the

district court might create an even clearer conflict, Douglas County

respectfully seeks certiorari now since if this case ends before the Tenth

Circuit rules it would be too late for Douglas County to revive its case

and obtain the benefit of any Supreme Court review that might follow the

Tenth Circuit decision.

Ninth Circuit means that thousands of agency decisions may

now be vulnerable to NEPA avoidance. This Court should

grant a writ of certiorari to resolve the conflict the decision

below has created with Flint Ridge and six other circuits on

this important issue.

ll. THIS CASE PRESENTS AN IMPORTANT

AND RECURRING ISSUE OF NATIONAL

SIGNIFICANCE.

This issue in this case is an important and recurring issue

with nationwide application. Listings of threatened and

endangered species have accelerated throughout the country

in recent years, and critical habitat is now being designated

for hundreds of species. The legal issue whether FWS must

comply with NEPA in designating critical habitat for these

species is present in every case.

The New Mexico Catron County case has already

presented the same issue in one case. and there is every

reason to expect citizens in many other parts of the country

to seek to obtain the Participatory rights conferred by NEPA

in future critical habitat designations.

This Court should grant certiorari to resolve this impor-

tant issue.

Ill. THE DECISION BELOW IS WRONGLY

DECIDED.

In addition to Creating conflict with Flint Ridge and

confict between circuits, the court of appeals decision below

is wrongly decided and should be reversed. The court below

relied on only two cases, but neither Supports its position.

The court also misinterpreted the legislative history of the

1978 ESA amendments that created the current critical

habitat process, misunderstood agency practices, and misap-

plied rules of statutory construction.

A. No case law support.

The court below found that Congress had by implication

"displaced" NEPA requirements when it amended the ESA

in 1978 to add the current procedural requirements to the

critical habitat designation process. The court based its

"displacement" doctrine on its earlier decision in Merrell v.

Thomas, 807 F.2d 776 (9th Cir. 1986), cert. denied 484

U.S. 848 (1987). In that case Congress had enacted a

procedure for registering pesticides under the Federal Insecti-

cide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C.

136-136y, with special rules relating to public participation,

a requirement for a decision in 90 days, and development of

alternatives, all of which directly conflicted with NEPA’s key

requirements. /d. at 777-81. Both houses of Congress had

passed new legislation expressly eliminating NEPA proce-

dures, id. at 780, and ample legislative history showed a

clear congressional intent for NEPA not to apply. /d.

The Merrell court found, as in Flint Ridge, that the short

decision deadline conflicts with NEPA, and it also found

clear congressional intent supporting that conclusion.

Merrell’s “displacement” theory was simply a way of

explaining the statutory conflict. Merrell is inapplicable here

because the court of appeals acknowledged in this case that

"time constraints alone would not prevent the Secretary from

preparing an EIS." App. 1Sa.

The court unjustifiably expanded Merrell’s "displace-

ment" doctrine by finding that NEPA compliance would

"sabotage" ESA procedures that are nothing more than

garden variety notice and comment rulemaking procedures,

and can easily be harmonized with NEPA. The Administra-

tive Procedure Act ("APA"), 5 U.S.C. 553. requires every

federal agency to follow these common procedures whenever

a new regulation is adopted. Agencies have spent a quarter

century learning how to integrate NEPA compliance with

APA procedures, as Congress commanded. Weinberger v.

Catholic Action of Hawaii, 454 U.S. 139, 143 (1981).

Under the court of appeals’ reasoning, no agency would have

to comply with NEPA if it is required to follow APA notice

and comment procedures. This plainly violates the "fullest

extent possible" directive in NEPA.

The other case relied on by the court below is Pacific

Legal Foundation v. Andrus, 657 F.2d 829 (6th Cir. 1981),

which held that there is a Statutory conflict between NEPA

and the ESA process for listing a species as threatened or

endangered, id. at 835, and that NEPA therefore does not

apply. The court in that case reasoned that since ESA limits

listing decisions to five biological criteria and precludes

consideration of any other factor, an EIS would not fulfill

any purpose under ESA or NEPA. /d. at 836-37.

Pacific Legal Foundation may be inconsistent with Flint

Ridge and the other courts of appeals in permitting an agency

to avoid NEPA in the absence of irreconcilable conflict with

another statute. Yet whatever its merits may be, Pacific

Legal Foundation does not support the decision in this case

because unlike the strict biological limitations on the ESA

listing process, Congress allows the critical habitat designa-

tion to “tak[e] into consideration the economic impact, and

any other relevant impact, of specifying any particular area

as Critical habitat." 16 U.S.C. 1533(b)(2) (emphasis added).

The court of appeals also relied on Pacific Legal Founda-

tion to suggest that NEPA compliance is unnecessary in this

case because "ESA furthers the goals of NEPA without

demanding an EIS." App. 25a. The court did not explain

why this observation would support a NEPA exemption.

The observation is both irrelevant and wrong. It is

irrelevant because courts cannot judge a statute "unneces-

sary" — courts are obligated to enforce each of two applica-

ble statutes, in the absence of irreconcilable conflict. Watt

v. Alaska, 451 U.S. 259, 267 (1981). Several courts have

refused to imply a NEPA exemption from other statutes that

are also intended to protect the environment. Limerick

Ecology Action v. U.S. Nuc. Reg. Com’n, 869 F.2d at 729;

Davis v. Morton, 469 F.2d at 598.

The court’s contention was also wrong. The ESA’s goals

are not the same as NEPA’s. Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 351 and n.14 (1989). The

ESA seeks to protect rare species and their habitats. NEPA

is an informational law that "does not mandate particular

results, but simply prescribes the necessary process."

Robertson v. Methow Valley Citizens Council, 490 U.S. at

350.

For this reason, NEPA can work smoothly with the ESA

critical habitat process, providing the FWS with important

information on the environmental, economic and social

impacts of a critical habitat proposal that assists the agency

to "tak[e] into consideration the economic impact, and any

other relevant impact" in making the decision. Without

NEPA, nothing in the ESA process assures that the agency

will have access to the broad range of information provided

by an EIS. NEPA also requires a range of alternatives that

assures the agency gives full consideration to different

approaches to achieving ESA’s goals. In this case Douglas

County was particularly interested in reviewing and analyzing

alternative critical habitat plans, but none were developed

because there was no NEPA compliance.

Neither Merrell, Pacific Legal Foundation nor any other

case supports the court of appeals decision.

B. No legislative history support.

The court below cited no legislative history showing that

Congress intended the ESA critical habitat process to displace

NEPA. To the contrary, there are only three relevant pieces

of legislative history on the 1978 ESA amendments, and all

three suggest congressional intent that NEPA would apply to

critical habitat decisions:

1. Senator McClure introduced an amendment to

automatically require an EIS for every critical habitat

decision. Senator Wallop, a manager of the bill, opposed the

amendment because he believed an EIS should only be

required for those designations that qualify as a major federal

action (as NEPA now requires). He stated that the ESA

"surely does not prohibit suits to compel that environmental

impact statements be filed under the provisions of NEPA if

the action is determined to be a major federal action." 120

Cong. Rec. 21589 (July 19, 1978); see App. 54a (district

court discussion of legislative history). Senator McClure

withdrew his amendment, agreeing with Senator Wallop’s

view. Id.

2. The conference report on the 1978 ESA amendments

States: "Where critical habitat is specified, . . . [a]ctual

notice of the regulation and any environmental assessment

or environmental impact statement prepared on it is

required to be given... . H. Rep. 1804 (95th Cong., 2d

Sess.) at 27, reprinted at [1978] U.S. Code. Cong. &

Admin. News 9494.

3. Inthe same amendments, Congress granted an explicit

NEPA exception to decisions of the newly-formed Endan-

gered Species Committee, 16 U.S.C. 1536(k), see H. Rep.

1804 (95th Cong., 2d Sess.) at 23, reprinted at |1978] U.S.

Code. Cong. & Admin. News 9490. The grant of one

express NEPA exemption in the amendment strongly implies

an absence of implied exemption elsewhere in the same

amendment. Andrus v. Glover Construction Co., 446 U.S.

608, 616-17 (1980) (enumeration of exceptions in statute

precludes implication of additional exceptions in absence of

contrary legislative intent).

Nothing in the legislative history supports the court of

appeals’ inference that Congress intended to exempt critical

habitat decisions from NEPA.

C. No congressional ratification of conflicting agency

interpretations.

1. The court of appeals was not aware of the conflict-

ing agency practices.

The court below also mistakenly believed that in 1988,

when Congress amended the ESA in certain unrelated aspects

but did not amend the ESA to require NEPA compliance, it

ratified the FWS policy not to comply with NEPA on critical

habitat designations, which had been announced in 1983.

App. 19a. The court was evidently not aware that since at

least 1980, FWS’ sister enforcement agency, NMFS, has

consistently complied with NEPA on critical habitat deci-

sions. NMFS has never interpreted ESA to preclude NEPA

compliance. Thus, Congress’ failure to amend ESA in 1988

could as likely reflect approval of the NMFS practice as the

FWS practice.

2. The court of appeals misapplied ruled of statutory

interpretation.

Apart from its misunderstanding of agency practices, the

court below also misapplied three rules of Statutory interpre-

tation in finding that Congress approved the agency practices

when it failed to amend the ESA in 1988:

a. There is no evidence Congress was aware of FWS or

NMFS policy on NEPA compliance in 1988. Without

evidence of such knowledge, subsequent congressional action

or inaction on the statute can not be construed as endorse-

ment of the agency policy. Brown v. Gardner, — U.S. —.

115 S. Ct. 552, 556-57, 130 L. Ed. 2d 462, 468 (1994).

b. The mere fact that Congress did not take up the issue

of NEPA compliance on critical habitat in 1988 shows

nothing about that Congress’ view of the existing agency

interpretations. "It is impossible to assert with any degree of

assurance that congressional failure to act represents affirma-

tive congressional approval... ." Central Bank of Denver,

N.A. v. First Interstate Bank of Denver, 511 U.S. —, 1145.

Ct. 1439, 128 L. Ed. 2d 119, 138 (1994) (quotation omit-

ted).

c. Congressional acquiescence cannot be inferred when

Congress does not reenact the statute in question. Central

Bank of Denver, 128 L. Ed. 2d at 137. Congress did not

reenact the ESA in 1988. It amended the law in certain

limited ways not relating to designation of critical habitat.

Thus, no congressional action or inaction in 1988 can

validate any agency interpretation of the earlier law.

For these reasons Congress’ failure to amend the ESA in

1988 in no way confirms the existence of an implied NEPA

exemption for critical habitat designations.

IV. THE COURT OF APPEALS’ ALTERNA-

TIVE RULING EXCUSING NEPA

COMPLIANCE FOR ACTIONS THAT

"PRESERVE THE ENVIRONMENT"

SIMILARLY CONFLICTS WITH FLINT

RIDGE AND OTHER COURT OF

APPEALS DECISIONS.

The court below bolstered its displacement doctrine by

embracing the argument of the environmental intervenors —

an argument the Secretary did not adopt or endorse — that

NEPA has an implied exemption for what the court variously

described as "an action that prevents human interference with

the environment," App. 24a, or "actions that do nothing to

alter the natural physical environment," App. 22a, or

"actions that preserve the physical environment.” App. 21a.

The court ruled that the critical habitat designation in this

case is exempt from NEPA because it is such an action, and

for this reason the agency is not required to prepare an EA

or an EIS. App. 24a.

A. The Secretary did not join this argument.

Significantly, the Secretary never endorsed or joined this

argument, which was presented by intervenor Headwaters,

Inc. App. 24a.

The Secretary could not join this argument because his

agency and other federal agencies regularly comply with

NEPA procedures before taking actions "to preserve the

environment.” See Hovsons, Inc. v. Secretary of the Interi-

or, 711 F.2d 1208 (3d Cir. 1983) (EIS prepared for plan for

National Park Service unit); County of Josephine v. Watt,

539 F. Supp. 696, 699 (N.D. Cal. 1982) (EIS prepared on

designation of wild and scenic river); Hogan v. Brown, 507

F. Supp. 191, 204 (W.D. Ark.), aff'd, 665 F.2d 849 (8th

Cir. 1981) (EIS prepared for plan to preserve forest lands for

wildlife). As the Secretary does not endorse this interpreta-

tion of NEPA, it deserves no deference.

B. The court exempted the designation in this case from

NEPA despite recognizing its environmental impacts.

The court found a statutory exemption in this case despite

recognizing the environmental effects of the 6,887,000 acre

critical habitat designation here. In upholding Douglas

County’s standing the court of appeals found that the county

owns land "adjacent to the critical habitat," App. 12a, that

federal land management practices on areas of critical habitat

could affect the county lands "[b]y failing to properly

manage for insect and disease control and fire," App. 12a,

and that these effects on county land are "’ reasonably

probable."". App. 13a n.6. The district court found that

"defendant’s designation of critical habitat will profoundly

affect the quality of life in Douglas County." App. 39a.

The court of appeals did not upset that finding.

The CEQ regulations require NEPA analysis for "indirect

effects, which are caused by the action and are later in time

or farther removed in distance, but are still reasonably

foreseeable." 40 C.F.R. 1508.8 (definition of "effects").

The potentially drastic effects on Douglas County’s land from

this critical habitat designation are within NEPA’s reach.

Thus, whether or not a critical habitat designation is viewed

as an action "to preserve the physical environment" the

record shows that the designation in this case will have

significant environmental effects on Douglas County’s land.

C. NEPA requires agencies to prepare an EA to

determine if a project has significant environmental

impacts.

The court of appeals did not find factually that the

6,887,000 acre designation in this case has no significant

environmental effects, and under NEPA that is not a role for

courts to perform. The CEQ regulations require a federal

agency, not a court, to factually determine through the EA

process whether a project has significant environmental

effects. 40 C.F.R. 1508.9. The federal courts’ role is

limited to reviewing agency decisions on NEPA compliance

under the deferential arbitrary and capricious standard.

Marsh v. Oregon Natural Resource Council, 490 U.S. 360,

375-76 (1989).

Under NEPA, if an agency prepares an EA which

reasonably finds that a proposed action will not result in

Significant environmental impacts, it need not prepare an

EIS. Some actions "that preserve the physical environment"

will therefore not require an EIS. See, e.g., Sabine River

Authority v. U.S. Department of Interior, 951 F.2d 669 (Sth

Cir.), cert. denied sub nom Texas Water Conservation Ass'n

v. Department of the Interior, — U.S. —, 113 S. Ct. 75

(1992) (upholding agency conclusion in EA that accepting

negative land easement would not result in significant

environmental impacts).

In other cases an EA may reveal that actions that initially

appear to “preserve the environment" may cause drastic and

undesirable environmental effects on the land in question as

well as adjacent private land, as in this case, by preventing

fire or flood control or insect management. See County of

Josephine v. Watt, 539 F. Supp. at 699. In those cases

NEPA requires an EIS.

An EA is required to contain alternatives, 40 C.F.R.

1508.9(b), which can influence an agency decision even if no

EIS is necessary.

D. No statutory NEPA exemption exists for actions that

preserve the environment.

The court’s discovery of an implied Statutory exemption

in NEPA for “actions that preserve the physical environ-

ment” applies even if such actions have significant environ-

mental effects. This implied exemption to NEPA fares no

better under Flint Ridge than the court’s "displacement"

exception, and equally conflicts with the six courts of appeals

that have held implied exemptions to NEPA prohibited by the

"to the fullest extent possible” directive in 42 U.S.C. 4332.

Flint Ridge precludes the creation of this implied exemp-

tion under NEPA. Flint Ridge requires agencies to study

environmental impacts in the NEPA process "to the fullest

extent possible” except where there is "an irreconcilable and

fundamental conflict" with another statute. Neither NEPA

nor any other statute exempts actions that preserve the

environment if those actions cause significant environmental

effects. The court’s implied exemption for actions "that pre-

serve the physical environment” conflicts with Flint Ridge

and six other courts of appeals as shown above. The court

should grant the writ of certiorari to resolve this conflict with

Flint Ridge, and to correct the error of the court of appeals.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated this Ist day of September, 1995.

Respectfully submitted,

MARK C. RUTZICK*

ALISON KEAN CAMPBELL

MARK C. RUTZICK LAW FIRM

A PROFESSIONAL CORPORATION

500 Pioneer Tower

888 S.W. Fifth Avenue

Portland, Oregon 97204-2089

RON YOCKIM

548 S.E. Jackson

Suite #7

Post Office Box 2456

Roseburg, Oregon 97470

Counsel for Douglas County,

Oregon

*Counsel of Record

ti ie

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 93-36013, 93-16016

DOUGLAS COUNTY, A POLITICAL

SUBDIVISION OF THE STATE OF

OREGON, PLAINTIFF-APPELLEE.

BRUCE BABBITT, SECRETARY OF THE INTERIOR. UNITED

STATES DEPARTMENT OF THE INTERIOR.

DEFENDANT-APPELLANT.

DOUGLAS COUNTY, A POLITICAL SUBDIVISION OF THE

STATE OF OREGON, PLAINTIFF-APPELLEE.

BRUCE BABBITT, DEFENDANT,

and

HEADWATERS, INC.;: UMPQUA VALLEY AUDUBON

SOCIETY, DEFENDANTS-INTERVENORS-APPELLANTS.

Argued and Submitted Jan. 9, 1995

Decided Feb. 24, 1995

“ SY Ta Ee Ds des Sarg

Appeals from the United States District Court for the

District of Oregon.

Before: | PREGERSON and TROTT, Circuit Judges, and FITz-

GERALD, Senior District Judge.”

PREGERSON, Circuit Judge:

I. OVERVIEW

Secretary of the Interior Bruce Babbitt (the Secretary) and

interveners, Headwaters, Inc. and Umpqua Valley Audubon

Society (Headwaters), appeal the district court’s grant of

summary judgment in favor of Douglas County, Oregon (the

County), in the County’s action alleging that the Secretary

failed to comply with the National Environmental Policy Act

of 1969 (NEPA), 42 U.S.C. § 4321 et seq., in designating

certain federal land as critical habitat for the Northern

Spotted Owl pursuant to the Endangered Species Act of 1973

(ESA), 16 U.S.C. § 1533(a)(3). The district court granted

the County permanent injunctive relief, setting aside the

critical habitat designation, but then stayed its order pending

appeal. We have jurisdiction under 28 U.S.C. § 1291. We

affirm in part, reverse in part, and remand for consideration.

* The Honorable James M. Fitzgerald, Senior United States District

Judge for the District of Alaska, sitting by designation.

Il. BACKGROUND

A. The Statutory Framework.

|. The Endangered Species Act.

Under § 4(a) of the ESA, 16 U.S.C. § 1533(a), the

Secretary’ may list a species as threatened or endangered.

When the Secretary lists a species, he or she must also

designate a "critical habitat" for that species. 16 U.S.C.

§ 1533(a)(3). The ESA defines “critical habitat" as the geo-

graphical areas "essential to the conservation of the species."

16 U.S.C. § 1532(5)(A). The Secretary must decide what

area to designate as a critical habitat "on the basis of the best

scientific data available and after taking into consideration

the economic impact, and any other relevant impact, of

specifying any particular area as critical habitat." 16 U.S.C.

§ 1533(b)(2). The ESA requires the Secretary to follow a

clear set of procedures for public notification and comment

after he or she designates a critical habitat. 16 U.S.C.

§ 1533(b)(4)-(6). The effect of designating an area as a

critical habitat is that federal actions that are likely to destroy

or disrupt the habitat are prohibited. 16 U.S.C.

§ 1536(a)(2).

' The Fish & Wildlife service (FWS) is an entity within to Depart-

ment of the Interior. To avoid confusion regarding the parties, in this

opinion we will attribute any FWS action to the Secretary of the Interior

(the Secretary).

2. The National Environmental Policy Act.

Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C),

requires "to the fullest extent possible," that "all agencies of

the Federal Government" shall

proposals for legislation and other major Federal actions

significantly affecting the quality of the human environ-

ment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhance-

ment of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed

action should it be implemented.

The above describes the requirements for an environmen-

tal impact statement (EIS). The EIS is "a procedural obliga-

tion designed to assure that agencies give proper consider-

ation to the environmental consequences of their actions."

Merrell v. Thomas, 807 F.2d 776, 777-78 (9th Cir. 1986),

cert. denied, 484 U.S. 848, 108 S.Ct. 145, 98 L.Ed.2d 101

(1987). The EIS also insures that the public is informed

about the environmental impact of proposed agency actions.

See Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989).

An environmental assessment (EA) is a document used to

decide whether the environmental impact of a proposed ac-

> det aacateeie ee

tion is significant enough to warrant preparation of an EIS.

See 42 U.S.C. § 4332(2)(E): 40 C.F.R. § 1508.9 (1994).

B. Facts.

On June 26, 1990, in response to litigation brought by a

number of environmental groups, Northern Spotted Owl y.

Hodel, 716 F.Supp. 479 (W.D.Wash. 1988), the Secretary

listed the Northern Spotted Owl as a threatened species

Pursuant to the ESA. 55 Fed.Reg. 26,114 (1990). In his

final rule, the Secretary explained that he could not designate

a critical habitat based only on the available information.

Plaintiffs in the litigation sought an order compelling the

Secretary to begin the designation process, and the district

court ordered the Secretary to publish a proposed critical

habitat designation by April 30, 1991. The court also or-

dered the Secretary to publish a final designation rule "at the

earliest possible time permitted under the appropriate regula-

tions." Northern Spotted Owl y. Lujan, 758 F.Supp. 621,

630 (W.D.Wash. 1991).

On May 6, 1991, the Secretary published an_ initial

Proposed regulation designating 11,639,195 acres of federal,

State and private lands as "proposed critical habitat." 56 Fed.

Reg. 20,816 (1991). The Secretary also announced his

intention to revise the designation after receiving comments

on the initial proposal. Jd. After Proposing the critical

habitat, the Secretary held four public hearings at which 364

people testified on the proposal.

As part of his May 6, 1991 announcement, the Secretary

concluded that he did not need to prepare an EA (and

therefore an EIS) in conjunction with the designation. 56

Fed.Reg. 20,824 (1991). The Secretary referred to a policy,

that he first announced in 1983, that determinations made

under § 4 of the ESA were not subject to NEPA. The 1983

policy was based primarily on (1) the Sixth Circuit's holding

in Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th

Cir.1981), that decisions to list species as threatened or

endangered under the ESA were exempt from NEPA, and (2)

a letter from the Council on Environmental Quality (CEQ)

whose "interpretation of NEPA is entitled to substantial

deference," Andrus v. Sierra Club, 442 U.S. 347, 358, 99

S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979), that urged the

Secretary to cease preparing EISs in conjunction with actions

under § 4 of the ESA. 48 Fed.Reg. 49,244 (1983). On May

30, 1991 Douglas County submitted formal comments to the

Secretary, alleging that the Secretary had failed to comply

with NEPA.

The Secretary issued a revised proposed designation of

critical habitat on August 13, 1991. 56 Fed.Reg. 40,002

(1991). The revised designation reduced the critical habitat

to 8,240,160 acres by eliminating all privately owned land

and most state owned land. The Secretary held another sixty

day Comment period on the proposed designation and an-

nounced another four public hearings. The revised proposal

affirmed the Secretary’s decision that an EA was not neces-

sary.

On January 15, 1992, the Secretary issued the final

designation of critical habitat. 57 Fed.Reg. 1,796 (1992).

The final designation includes 6,887,000 acres, all of which

is federal land. The final rule includes a lengthy analysis of

all the factors that led to the final critical habitat designation.

Douglas County filed this suit in United States District

Court for the District of Oregon on September 25, 1991,

seeking declaratory and injunctive relief. The County’s pri-

mary allegation is that the Secretary failed to comply with

NEPA in designating a critical habitat. The Secretary chal-

lenged Douglas County’s standing to bring the action. All

parties filed motions for summary judgment after publication

of the final designation.

The district court found that the County had standing to

Pursue its claims. The court granted summary judgment on

behalf of the County, finding that NEPA did apply to the

Secretary’s decision to designate a critical habitat. See

Douglas County v. Lujan, 810 F.Supp. 1470, 1484-85 (D.

Oregon 1992).? The district court entered an order setting

aside the final designation of critical habitat until the Secre-

tary complies with NEPA. The court then, sua sponte,

stayed the order pending appeal.

Ill. ANALYSIS

On appeal, the Secretary and Headwaters argue that the

district court erred when it ruled in favor of the County.

The Secretary asserts that the County does not have standing

and, on the merits, argues that NEPA does not apply to

designations of critical habitat because the ESA procedures

have displaced the NEPA procedures. Headwaters argues

that an EIS is not required because the federal action at issue

does not change the natural, physical environment, and

because requiring an EIS would frustrate the purposes of

both NEPA and the ESA. Appellee Douglas County and

amici Northwest Forest Resource Council, Douglas Timber

Operators, Southern Forest Products Association, Southern

Timber Purchasers Council, and American Forest & Paper

Association (Timber), respond to these claims.

* The new Secretary of the Interior. Bruce Babbitt, has replaced

Manuel Lujan as a defendant in this litigation.

A. Standing.

1. Standard of Review.

We review questions of standing de novo. See

Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24

F.3d 56, 61 (9th Cir. 1994).

2. Analysis.

The Supreme Court articulated the requirements for

Article Ill standing in Lujan v. Defenders of Wildlife, 504

U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992):

First, the plaintiff must have suffered an "injury in

fact"—an invasion of a legally protected interest which is

(a) concrete and particularized and (b) “actual or immi-

nent not ‘conjectural’ or ‘hypothetical,’" Second, there

must be a causal connection between the injury and the

conduct complained of—the injury has to be "fairly .. .

trace[able] to the challenged action of the defendant, and

not . . . the result [of] the independent action of some

third party not before the court." Third, it must be "like-

ly," as opposed to merely "speculative," that the injury

will be "redressed by a favorable decision."

Id. 504 U.S. at —, 112 S.Ct. at 2136 (citations omitted).

In addition to these constitutional requirements, a plaintiff

challenging a statutory provision under the Administrative

Procedure Act (APA), 5 U.S.C. §§ 551 et seqg., must show

that the injury he or she has suffered falls within the "zone

of interests" that the statute was designed to protect. See

Lujan. v. National Wildlife Federation, 497 U.S. 871, 883,

110 S.Ct. 3177, 3186, 111 L.Ed.2d 695 (1990); Douglas

County, 810 F.Supp. at 1475. Describing the "zone of

interests" under NEPA, we recently stated that:

NEPA was enacted in order "to promote efforts which

will prevent or eliminate damage to the environment and

biosphere and stimulate the health and welfare of man."

42 U.S.C. § 4321 (1988). The purpose of NEPA is to

protect the environment, not. . . economic interests. . . .

Therefore, a plaintiff who asserts purely economic

injuries does not have standing to challenge an agency

action under NEPA.

Nevada Land Action Ass’n v. U.S. Forest Service, 8 F.3d

713, 716 (9th Cir. 1993) (citations omitted).

To find that the County’s interests do not fall inside the

“zone of interests" protected by NEPA, we would have to

find that (1) the County’s interests are inconsistent with the

purposes of NEPA, and that (2) the interests are so inconsis-

tent that it would be unreasonable to assume that Congress

intended to permit the suit. See Mt. Graham Red Squirrel v.

Espy, 986 F.2d 1568, 1582-83 (9th Cir. 1993) (citing Clarke

v. Security Industry Ass’n, 479 U.S. 388, 107 S.Ct. 750, 93

L.Ed.2d 757 (1987)).

Douglas County asserts that it has Standing based on

several types of injuries: procedural injury, injury to its

proprietary interests, injury to the quality of life of its

citizens, injury to wildlife within the county, and injury to its

resource management interests. We conclude that the narrow

circumstances of this case are sufficient to support procedural

standing for Douglas County. This being the case, there is

no need for us to address the other alleged bases for stand-

ing.

10a

The County asserts that it has standing "based upon its

procedural injuries resulting from the FWS’s failure to

prepare an environmental document that explores a range of

alternatives and cumulative effects.” Appellee Opening Brief

at 15. The Supreme Court recently addressed the issue of

procedural standing in Lujan v. Defenders of Wildlife, 504

U.S. 555, — n. 7, 8, 112 S.Ct. 2130, 2142 n. 7, 8, 119

L.Ed.2d 351 (1992).* The Court suggested that plaintiffs

living near a site for a proposed federal dam would have

| procedural standing to sue if the licensing agency failed to

| prepare an EIS, even though the EIS may have no impact on

the plans for the dam. See id. 504 U.S. at — n. 7, 112

S.Ct. at 2142 n. 7. Lujan requires a plaintiff to show two

essential elements for procedural standing: (1) that he or she

is a “person who has been accorded a procedural right to

protect [his or her] concrete interests. . . ." Lujan, 504 U.S.

atn. 7, 112 §.Ct. at 2142 n. 7* and (2) that the plaintiff has

> Ninth Circuit cases also have found that procedural injury can form

the basis for standing. See Pacific Northwest Generating Coop. v. Brown,

25 F.3d 1443, 1450 (9th Cir. 1994) (plaintiffs with an economic interest

in preserving salmon have procedural interest in ensuring that the ESA

is followed); Friends of the Earth v. United States Navy, 841 F.2d 927,

931-32 (9th Cir. 1988) (residents who live near site of proposed port have

procedural standing to sue for Navy’s alleged failure to follow permitting

regulations); State of California v. Block, 690 F.2d 753, 776 (9th

Cir. 1982) (state of California has procedural standing to challenge the

adequacy of an EIS for forest service’s land allocation); City of Davis v.

Coleman, 521 F.2d 661, 671 (9th Cir. 1975) (city located near proposed

freeway interchange has procedural standing to challenge agency’s failure

to prepare an EIS).

| * It is unclear whether this “procedural right” must be conferred by

a Statute, or whether the right arises because a concrete interest is threat-

ened. In Lwun, the Court discusses the "citizensuit" provisions of the

(continued...)

lla

"some threatened concrete interest . . . that is the ultimate

basis of [his or her] Standing." Lujan, 504 U.S. at — n. 8,

112 S.Ct. at 2143 n. 8: see also Douglas County, 810

F.Supp. at 1477.° In addition, plaintiffs must show that

their interest falls within the "zone of interests" that the

challenged statute is designed to protect. See Pacific

Northwest, 25 F.3d at 1450: Friends of the Earth 841 F.2d

at 932.

* (...continued)

ESA which allow certain persons to sue and thus gives them a procedural

right to ensure that Statutory procedures are followed correctly. Lujan,

504 U.S. at —, 112 S.Ct. at 2142. But in footnote seven, the Court

states that people living near a proposed dam have procedural standing to

challenge the agency’s failure to prepare an EIS. The Court does not

mention any statute that gives them their “procedural right." The Court

seems to base its conclusion on the fact that people living close to a

proposed dam have "concrete interests” that give them the right to insure

that agencies follow correct procedures.

In some of our cases we have granted standing based on a

"procedural right" conferred by statute. In Coleman, 521 F.2d at 672;

and in Block, 690 F.2d at 776, we conferred standing based on NEPA’s

provision that certain government entities have a procedural right to

participate in the NEPA process. But in Friends of the Earth, 841 F.2d

at 931-32; in Pacific Northwest, 25 F.3d at 1449; and in a different

passage in Coleman, 521 F.2d at 671, we do not discuss whether the

challenge. statutes confer a procedural right on the plaintiffs. There, we

assumed thai plaintiffs with separate "concrete interests" in the envi-

ronment have a right to see that applicable procedures are properly fol-

lowed.

Because some of our cases and some language in Lujan require that

plaintiffs have a right conferred by the challenged statute, we require that

showing in this case.

* The district court was correct to equate the "geographic nexus” test

of past Ninth Circuit cases with the "concrete interest” test of Lujan, 504

U.S. at — n. 8, 112 S.Ct. at 2143 n. 8. See Douglas County, 810

F.Supp. at 1477.

12a

The County has been "accorded a procedural right"

because NEPA provides that “local agencies, which are

authorized to develop and enforce environmental standards"

may comment on the proposed federal action. 42 U.S.C.

§ 4332(2)(C). The County is such a local agency because an

Oregon Statute authorizes counties to “[p]repare, adopt,

amend, and revise" land management plans that contain

environmental standards. Or.Rev.Stat. § 197.175 (1993); see

also Or.Admin.R. 660-06-000.

The County must also show a “concrete interest" that

underlies its procedural interest. That interest must be within

the zone of interests NEPA was designed to protect. The

County’s proprietary interest in its lands adjacent to the

"critical habitat represents this necessary "concrete interest".

The affidavit of Kenneth Hendrick, director of the Land

Department for Douglas County, expresses concerns with the

proposed critical habitat designation. Hendrick alleges that

the land management practices on federal land could affect

adjacent county-owned land: "By failing to properly manage

for insect and disease control and fire, the federal land

management practices threaten the productivity and environ-

ment of the adjoining [county] lands." E.R. at 33-34.

These statements describe concrete, plausible interests,

within NEPA’s zone of concern for the environment, which

underlie the County’s asserted procedural interests. It is

logical for the County to assert that its lands could be

threatened by how the adjoining federal lands are managed.°

® Lujan, 504 U.S. — at n. 7, 112 S.Ct. at 2142 n. 7, states that

consequences of a challenged action are adequate for standing even when

they occur in the far future, but it does not address how high the

probability of their occurrence must be. When the dam of Lujan's

footnote seven is finally built, it likely to cause the environmental harm

that the plaintiffs allege. In Pacific Northwest, 25 F.3d at 1449,

(continued...)

13a

It is uncertain whether the findings of an EIS would affect

the Secretary’s critical habitat designation and when the

adjacent county lands would actually be harmed. But under

Lujan, those concerns are not important: "The person who

has been accorded a procedural right to protect his concrete

interests can assert the right without meeting all the normal

standards for repressibility and immediacy." Lujan, 504 U.S.

at n. 7, 112 S.Ct. at 2142 n. 7.

In short, the County meets all of Lujan’s strict procedural

Standing requirements. The County has a procedural right,

as well as a concrete interest that could be harmed by the

critical habitat designation, and that interest is within the

zone of interests protected by NEPA.

B. NEPA claims.

|. Standard of Review.

We review a district court’s grant of summary judgment

de novo. See Jesinger v. Nevada Fed. Credit Union, 24

F.3d 1127, 1130 (9th Cir. 1994).

2. Analysis.

Whether NEPA applies to a decision of the Secretary to

designate a critical habitat under the ESA is a question of

first impression. Section 102(2)(C) of NEPA, 42 U.S.C.

§ 4332(2)(C), requires "to the fullest extent possible,” that

° (...continued)

however, we suggested that causation need only be established with

"reasonable probability." We think that it is “reasonably probable” that

the designation of the critical habitat would affect adjoining lands.

;

14a

"all agencies of the Federal Government" comply with the

EIS requirements when they take “major Federal actions

significantly affecting the quality of the human environment."

Preparation of an EIS ensures both that agencies give proper

consideration to the environmental consequences of their

actions, see Merrell, 807 F.2d at 777-78, and that "relevant

information will be made available to the larger audience that

they may also play a role in . . . the decisionmaking pro-

cess... ." Robertson, 490 U.S. at 349, 109 S.Ct. at 1845.

The Supreme Court has interpreted the language "to the

fullest extent possible” to be “neither accidental nor hyper-

bolic." Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426

U.S. 776, 787, 96 S.Ct. 2430, 2438, 49 L.Ed.2d 205

(1976). Rather, the Court found the language to be a “delib-

erate command" that the consideration of environmental

factors not be "shunted aside" in the "bureaucratic shuffle."

Id.

Despite the strict language of NEPA, courts have found

that some agency actions are not subject to the NEPA re-

quirements. We have noted that "NEPA was not intended to

repeal by implication any other statute." Merrell, 807 F.2d

at 779 (quoting United States v. Students Challenging Regula-

tory Agency Procedures (SCRAP), 412 U.S. 669, 694, 93

S.Ct. 2405, 2419, 37 L.Ed.2d 254 (1973)). One exception

to NEPA’s application derives from a statement made by the

NEPA conferees. NEPA applies unless “the existing law

applicable to such agency’s operations expressly prohibits or

makes full compliance with one of the directives impossible."

H.Conf.Rep. No. 765, 91st Cong., Ist Sess. (1969), reprint-

ed in 1969 U.S.C.C.A.N. 2767, 2770.

In Flint Ridge, 426 U.S. at 788, 96 S.Ct. at 2438, the

Supreme Court, relying on the conferees’ language, conclud-

ed that requiring the Secretary of the Department of Housing

and Urban Development to prepare an EIS would create an

15a

or her duties under the Interstate Land Sales Full Disclosure

Act. 15 U.S.C. §§ 1701 et seg. The Court found that the

Secretary could not prepare an EIS and still comply with the

Statutory duty to allow disclosure statements filed by devel-

opers to go into effect within 30 days of filing. See id. at

791, 96 S.Ct. at 2439-40.’

In contrast, the designation of a critical habitat at issue in

the instant case does not occur in a highly restrictive time

frame. Thus, time constraints alone would not prevent the

Secretary from preparing an EIS. Douglas County argues

that without this "irreconcilable" Statutory conflict, NEPA

must apply. We disagree, and, for the reasons set forth

below, we hold that NEPA does not apply to the designation

of a critical habitat.

a. ESA Procedures Have Displaced

NEPA Requirements.’

In Merrell v. Thomas, 807 F.2d at 778, we found that

NEPA did not apply when the EPA registered pesticides

” Courts have discussed “categorical exceptions" to NEPA that do

not apply in the instant case. See, e.g., Pacific Legal Foundation, 657

F.2d at 834 n. 4 (actions under the Clean Air Act are categorically

exempt from NEPA); Jones v. Gordon, 792 F.2d 821, 827 (9th Cir. 1986)

(discussing a categorical exemption from NEPA for permits under the

Marine Mammal Protection Act).

* The County argues that because defendants did not raise the issue

of statutory displacement in lower court, they may not do so on appeal.

We disagree. Though in the district court, the defendants did not argue

that the process of designating a critical habitat replaced NEPA, there is

no bar to their raising new arguments on appeal if those arguments are

purely legal. A court of appeals has the discretion to consider those new

theories. See Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d

691, 693 (9th Cir. 1980).

16a

under the Federal Insecticide, Fungicide, and Rodenticide

Act (FIFRA), 7 U.S.C. §§ 136-136y. We traced the legisla-

tive history of FIFRA and concluded that because Congress

created two different mechanisms in FIFRA and NEPA, and

because Congress declined the opportunity to apply NEPA to

FIFRA, that it intended that FIFRA procedures replace

NEPA for pesticide registration. See id. at 778-79. Con-

gress amended FIFRA after the passage of NEPA. Without

mentioning NEPA, Congress created a procedure that made

the NEPA procedure "superfluous." /d. at 778. However,

the process under FIFRA was different from the NEPA

procedures in several important respects, and the legislation

represented a compromise among the various interested

parties. See id. Congress amended FIFRA again in 1975,

1978, and 1984. Though it had the opportunity on those

three occasions to alter legislatively the EPA’s earlier

interpretation of FIFRA that did not require compliance with

NEPA, Congress declined to do so. We thus concluded that

Congress did not intend for NEPA to apply to FIFRA.

The legislative history of the ESA at issue in the instant

case follows a similar pattern and convinces us that Congress

intended that the ESA procedures for designating a critical

habitat replace the NEPA requirements. In 1978, eight years

after the effective date of NEPA, Congress enacted a set of

amendments to the ESA. The amendments provided a

procedure for the designation of a critical habitat and allowed

Congress to consider the economic impact of a designation.

The language of the House Committee Report indicates that

the members contemplated the structure of the entire process

17a

for designating critical habitats.? The report indicates that

the committee members wished to introduce some "flexibil-

ity" into the stringent requirements of the ESA. H .R.Rep.

No. 1625, 95th Cong., 2d Sess. 14. reprinted in 1978

U.S.C.C.A.N. 9453, 9464. The report states that "the

legislation aims to improve the listing process and the public

notice process" ensuring that the Secretary only makes a

critical habitat designation "after a thorough survey of all the

available data" and after notice to the affected communities.

Id. The report later describes the extensive notice provisions

that “will insure that the Department of the Interior is not

listing species and designating critical habitat without consult-

ing the views of the people of the affected area." /d. at 16.

The procedure Congress chose, as in Merrell, makes the

NEPA procedure seem "superfluous." Before the Secretary

can issue a final critical habitat designation, he or she must

now (1) publish a notice and the text of the designation in the

Federal Register; (2) give actual notice and a copy of the

designation to each state affected by it; (3) give notice to

appropriate scientific organizations; (4) publish a summary

of the designation in local newspapers of potentially affected

areas; and (5) hold a public hearing if one is requested. 16

U.S.C. § 1533(b)(5). This carefully crafted congressional

mandate for public participation in the designation process,

like the FIFRA procedures reviewed in Metered, displaces

NEPA’s procedural and informational requirements.

The process requires that the Secretary examine the

effects of his or her actions by taking into account economic

and other relevant impacts. Through that analysis and by

examining "the best scientific data available." 16 U.S.C. §

* The language in the 1978 House Bill regarding designation of

critical habitat eventually became the law in ESA § 4(b), 16 U.S.C. §

1533(b).

18a

1533(b)(2), the Secretary will consider impacts that concern

NEPA, to the extent that the critical habitat designation has

a positive environmental effect on the species in question.

The critical designation process also provides for public no-

tice, another goal of NEPA. See Robertson, 490 U.S. at

349, 109 S.Ct. at 1845.

As in Merrell, however, the procedure in the statute at

issue represents a "compromise between disparate points of

view," H.R.Rep. No. 1625 at 13-14, 1978 U.S.C.C.A.N.

9463, 9464, which leaves little room for the imposition of

the NEPA requirements. In Merrell, we concluded that

applying NEPA to FIFRA’s registration process would

"sabotage the delicate machinery that Congress designed to

same is true here. Congress through debate and compromise

forged a specific process for the Secretary to follow when

addressing the needs of endangered species. Requiring the

EPA to file an EIS "would only hinder its efforts at attaining

the goal of improving the environment." Pacific Legal

Foundation, 657 F.2d at 837.

In addition, the ESA has an important mandate that

distinguishes it from NEPA. Congress gave a special guide-

line to the Secretary in the critical habitat process. Though

the Secretary may exclude from the critical habitat any area,

the exclusion of which, would be more beneficial than harm-

ful, he or she must designate any area without which the

species would become extinct. 16 U.S.C. § 1533(b)(2).

This mandate conflicts with the requirements of NEPA be-

Cause in cases where extinction is at issue, the Secretary has

no discretion to consider the environmental impact of his or

her actions.

Congress also made an implicit choice to accept the

Secretary’s policy not to prepare EISs when designating

critical habitats. This choice is added evidence that Congress

19a

did not intend NEPA to apply to critical habitat designations.

In 1988, Congress amended the ESA again. Though it ad-

dressed other parts of § 1533 (§ 4 of the ESA), Congress did

not change the critical habitat provisions. This inaction is

significant because before the 1988 amendments, in 1981, the

Sixth Circuit in Pacific Legal Foundation, 657 F.2d at 835,

held that NEPA did not apply when the Secretary listed a

species as threatened or endangered under the ESA and

| suggested in dicta that the process of designating a critical

[| habitat might provide the "functional equivalent" of an

EIS."°

More importantly, in 1983, the Secretary announced in

the Federal Register his decision not to prepare EAs (and,

therefore, EISs) before making critical habitat designations.

48 Fed.Reg. 49,244 (1983). In the 1988 amendments,

Congress did not respond to this interpretation of § 1533.

"[W]hen Congress revisits a statute giving rise to a long-

Standing administrative interpretation without pertinent

change, the ‘congressional failure to revise or repeal the

'° Courts have used a “functional equivalent” test to exempt agency

action from NEPA requirements. In Pacific Legal Foundation, 657 F.2d

at 835, the Sixth Circuit suggested that the "ESA may now provide the

functional equivalent of an impact statement when a critical habitat is

designated.” Other courts have used the same analysis. See Environmen-

tal Defense Fund, Inc. v. EPA, 489 F.2d 1247, 1256 (D.C.Cir. 1973)

(finding FIFRA Procedures to be the functional equivalent of NEPA);

y Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 359 (3rd Cir. 1972) (Clean

| Air Act procedure should be used instead of NEPA), cert. denied, 409

l! U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973). The defendants here

do not advance the functional equivalent argument, so we do not address

it. The County would have us believe that the "displacement" argument

defendants make is the same as the "functional equivalent” test. We do

not agree. The "displacement" argument asserts that Congress intended

to displace one procedure with another. The “functional equivalent”

argument is that one process requires the same steps as another.

20a

agency’s interpretation is persuasive evidence that the in-

terpretation is the one intended by Congress.’" Commodity

Futures Trading Comm’n v. Schor, 478 U.S. 833, 846, 106

S.Ct. 3245, 3254, 92 L.Ed.2d 675 (1986) (quoting NLRB v.

Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757,

1761-62, 40 L.Ed.2d 134 (1974)): see also Merrell, 807 F.2d

| at 779. :

| Douglas County argues that the legislative history of the

| ESA is not comparable to that of FIFRA. The County relies

| primarily on a statement in the Conference Committee Report

| for the 1978 ESA amendments which requires that actual

notice of the critical habitat designation and "any environ-

| mental assessment or environmental impact statement” be

| supplied to affected local governments. H.Conf.Rep. No.

| 1804, 95th Cong., 2d Sess., 27 (1978), reprinted in 1978

| U.S.C.C.A.N. 9484, 9494. The statement is far from a

| clear, considered indication of congressional intent. The

comment does not direct the Secretary to prepare an EA or

an EIS, it just states that if one is available, it should be

forwarded. In light of the fact that this language did not

become part of the final statute, and in light of the rest of the

legislative history, we think this phrase does not indicate that

| Congress intended: NEPA to apply to ESA critical habitat

| designations.

| The district court, finding that Congress intended NEPA

to apply to critical habitat designations, made much of the

debate on the Senate floor over the 1978 amendments. See

| Douglas County, 810 F.Supp. at 1483. If that debate demon-

| strates anything to us, it demonstrates that though the Senate

| considered amending the ESA to state clearly that NEPA

| applied to ESA critical habitat designations, Congress chose

not to make that statement.

The County argues that Jones v. Gordon, 792 F.2d 821

(9th Cir. 1986) should control our analysis regarding NEPA’s

2la

applicability. Jones, involved Sea World’s application for a

permit under the Marine Mammal Protection Act to take ten

killer whales from the wild. Jones carries the torch of Flint

Ridge, 426 U.S. at 788, 96 S.Ct. at 2438, finding no

"irreconcilable conflict” between NEPA and the Marine

Mammal Protection Act. Jones, 792 F.2d at 825. But in

Jones we do not state that the finding of an irreconcilable

Statutory conflict is the only way to avoid the NEPA provi-

sions, and it is unclear from the opinion whether the plain-

tiffs advanced other theories. Moreover, this court, in

Merrell, joined the Sixth Circuit in Pacific Legal Foundation,

657 F.2d at 835, in finding that the "irreconcilable conflict"

test did not afford the only exception to the application of

NEPA to federal actions. Therefore, we find that Jones does

not control.

As for the concern that if the Secretary is not subject to

the NEPA requirements, he or she will have unchecked

discretion in making critical habitat designations, we believe

that the procedural requirements of the ESA, combined with

review of decisions possible under the Administrative

Procedure Act, are adequate safeguards."'

b. NEPA does not Require an EIS for Actions that

Preserve the Physical Environment.

Even if the legislative history suggesting that Congress

intended that the ESA procedure for designating a critical

habitat displace the NEPA requirements were not as clear,

the Secretary would still not be obliged to prepare an EIS

when he or she designated a critical habitat under the ESA.

We find that the NEPA procedures do not apply to federal

'' Plaintiffs can challenge the Secretary’s compliance with the ESA’s

procedural requirements under the APA, 5 U.S.C. §§ 551, et seq.

22a

actions that do nothing to alter the natural physical environ-

ment.

When we consider the purpose of NEPA in light of

Supreme Court guidance on the scope of the statute, we

conclude that an EA or an EIS is not necessary for federal

actions that conserve the environment.'? The purpose of

NEPA is to "provide a mechanism to enhance or improve the

environment and prevent further irreparable damage."

Pacific Legal Foundation, 657 F.2d at 837. To this end,

NEPA mandates an EIS report describing the "environmental

impact" of significant federal actions, 42 U.S.C.

§ 4332(2)(C).

The Supreme Court discussed the NEPA requirements in

Metropolitan Edison Co. v. People Against Nuclear Energy,

460 U.S. 766, 772-73, 103 S.Ct. 1556, 1560-61, 75 L.Ed.2d

534 (1983). The Court emphasized that the adjective

“environmental” implies that "NEPA does not require the

agency to assess every impact or effect of its proposed

action, but only the impact or effect on the environment."

Id. at 772, 103 S.Ct. at 1560 (emphasis in original). The

Court added that Congress meant the physical environ-

ment—the air, land, and water. The Court concluded that

"although NEPA states its goals in sweeping terms of human

health and welfare, these goals are ends that Congress has

chosen to pursue by means of protecting the physical

environment." /d. at 773, 103 S.Ct. at 1561 (emphasis in

original) (footnote omitted).

'2 Amici Timber argue that if an EIS is not required for a designa-

tion of critical habitat, that the Secretary must prepare an EA, the

document that explores whether an EIS is necessary. This line of

reasoning is specious. If it is clear that an EIS is never necessary when

the Secretary designates a critical habitat under the ESA, then an EA

would not serve any purpose.

23a

If the purpose of NEPA is to protect the physical envi-

ronment, and the purpose of preparing an EIS is to alert

agencies and the public to potential adverse consequences to

the land, sea or air, then an EIS is unnecessary when the

action at issue does not alter the natural, untouched physical

environment at all.

Other courts have reached the same conclusion. In

Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d 669

(Sth Cir.1992), cert. denied sub nom, Texas Water Conser-

vation Ass’n v. Dept. of the Interior, — U.S. —, 113 S.Ct.

75, 121 L.Ed.2d 40 (1992), the Fifth Circuit found that no

EIS was necessary when the federal government acquired a

negative easement that prohibited the commercial develop-

ment of certain wetlands in Texas. The court found that the

Secretary did not need to prepare an EIS even though the

easement would forever prevent the plaintiffs from construct-

ing a reservoir: "The acquisition of a negative easement

which prohibits development does not result in the requisite

‘change’ to the physical environment." /d. at 680. As

another court put it, an EIS is not required "in order to leave

nature alone." National Ass’n of Property Owners v. U.S.,

499 F.Supp. 1223, 1265 (D.Minn.1980), aff'd, State of

Minnesota v. Block, 660 F.2d 1240 (8th Cir.1981).

The district court ruled against the defendants on this

issue, but its treatment of the argument is unpersuasive. The

district court found that the argument—that EISs are not

required for federal actions that maintain the environmental

status quo—could not be determinative, no matter its merits,

because it assumed a fact not in evidence. That fact was,

that the environment would remain unchanged if designated

a critical habitat. The court offered as an example the

possibility that the area could acquire more old growth

characteristics if it were left alone.

24a

The district court missed the point. Of course a forest,

free of human interference, changes all the time—saplings

grow, mature trees die, dead trees decay. The touchstone is

not any change in the status quo, but change effected by

humans. Headwaters argues, and we agree, that when a

federal agency takes an action that prevents human interfer-

ence with the environment, it need not prepare an EIS. The

environment, of its own accord, will shift, change, and

evolve as it does naturally.’

'> Amici Timber argue that NEPA requires an EIS even for actions

that maintain the status quo. Though the cases amici Timber cite do

involve actions that at least in part, preserve the environment, they are

inapposite. The parties in those cases only challenged whether the agency

adhered properly to the NEPA procedures. They did not challenge the

applicability of NEPA to the contested actions. They apparently assumed

that NEPA was applicable. See Hovsons, Inc. v. Secretary of the

Interior, 711 F.2d 1208 (3rd Cir. 1983) (management plan for national re-

serve); County of Josephine v. Watt, 539 F.Supp. 696 (N.D.Cal. 1982)

(designation of a river under the Wild and Scenic Rivers Act); Hogan v.

Brown, 507 F.Supp. 191 (W.D. Ark. 1980) (acquisition of land for wildlife

refuge), aff'd, 665 F.2d 849 (8th Cir.1981). We cannot interpret a

court’s discussion of an EIS as an endorsement of the necessity for an

EIS in cases where its necessity was not questioned.

Amici Timber also cite Confederated Tribes and Bands of the Yakima

Indian Nation v. FERC, 746 F.2d 466, 476 (9th Cir. 1984), cert. denied,

471 U.S. 1116, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985), for the

proposition that the relicensing of a hydroelectric plant requires an EIS

even though it maintains the status quo. The case is inapposite because

there was a serious question about the impact on fish populations from the

continued operation of the hydropower project. This kind of environmen-

tal damage is exactly what the spotted owl critical habitat designation does

not threaten. In addition, we recently decided that actions that do not

change the status quo do not require an EIS. See National Wildlife

Federation v. Espy, 45 F.3d 1337, 1343-44 (9th Cir. 1995).

25a

c. ESA Furthers Goals of NEPA

Without Requiring an EIS.

We also find that NEPA does not apply to the designation

of a critical habitat because the ESA furthers the goals of

NEPA without demanding an EIS. NEPA was designed to

"promote human welfare by alerting governmental actors to

the effect of their proposed actions on the physical envi-

ronment," Metropolitan Edison, 460 U.S. at 772, 103 S.Ct.

at 1560, and "to provide a mechanism to enhance or improve

the environment and prevent further irreparable damage."

Pacific Legal Foundation, 657 F.2d at 837. The ESA is a

substantive statute whose goal is to prevent extinction: "[t}he

plain intent of Congress in enacting [the ESA] was to halt

and reverse the trend toward species extinction, whatever the

cost." Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184,

98 S.Ct. 2279, 2297, 57 L.Ed.2d 117 (1978). By desig-

nating critical habitats for endangered or threatened species,

the Secretary "is working to preserve the environment and

prevent the irretrievable loss of a natural resource." Pacific

Legal Foundation, 657 F.2d at 837. Thus the action of the

Secretary in designating a critical habitat furthers the purpose

of NEPA. Requiring the EPA to file an EIS "would only

hinder its efforts at attaining the goal of improving the

environment." Id.

The district court found that this rationale, which the

Sixth Circuit applied in Pacific Legal Foundation, 657 F.2d

at 835-40, does not hold in the instant case. In Pacific Legal

Foundation, the Sixth Circuit gave four reasons why NEPA

should not be applied to the Secretary’s decision to list

species as endangered or threatened under the ESA. We

think the analysis applies directly to the facts of the case

before us.

26a

First, the court in Pacific Legal Foundation, 657 F.2d at

835-36, found that if NEPA is applied to the listing of a

species the ESA’s purpose would be frustrated because the

ESA prevents the Secretary from considering environmental

impact when listing a species as endangered or threatened.

In critical habitat designations the Secretary can only

consider "economic impact and any other relevant impact of

specifying any particular area as critical habitat." 16 U.S.C.

§ 1533(b)(2). The district court decided that the ESA would

not be frustrated by the imposition of NEPA because the

language—"any other relevant impact"—could allow the

"wide range of impacts required to be analyzed in preparing

NEPA documentation." Douglas County, 810 F.Supp. at

1479.

The district court did not explain how it decided that the

words of the statute were to be given such a broad meaning,

and we think its interpretation is misguided. The other

impacts that the Secretary may consider must be "relevant"

to the designation process. The purpose of the ESA is to

prevent extinction of species; and Congress has allowed the

Secretary to consider economic consequences of actions that

further that purpose. But Congress has not given the Secre-

tary the discretion to consider environmental factors, other

than those related directly to the preservation of the species.

The Secretary cannot engage in the very broad analysis

NEPA requires when designating a critical habitat under the

ESA.

The second conclusion of the Sixth Circuit in Pacific

Legal Foundation, 657 F.2d at 836, is that it would not

further the purposes of NEPA to apply NEPA to the ESA be-

cause the Secretary does not have discretion to consider

factors other than those listed in the ESA when listing a

species. As with the first argument, the district court found

in the instant case that because the Secretary can consider

27a

"any other relevant impact" when designating a critical

habitat, that he or she has the authority to consider the

impact on the environment. As we explained above, we do

not agree with this broad interpretation.

The third basis for the court’s decision in Pacific Legal

Foundation was that “the Secretary’s action in listing a

species as endangered or threatened furthers the purpose of

NEPA even though no impact statement is filed." Pacific

Legal Foundation, 657 F.2d at 837. We agree. As with the

decision to list a species under the ESA, the decision to

preserve critical habitat for a species protects the environ-

ment from exactly the kind of human impacts that NEPA is

designed to foreclose.

The district court found otherwise, stating that in the

Ninth Circuit "NEPA applies to every major federal action

absent a clear and unavoidable statutory conflict." Douglas

County, 810 F.Supp. at 1482. We do not think this is an

accurate description of Ninth Circuit law. In Merrell, 807

F.2d at 778, for instance, we found that NEPA did not apply

to FIFRA, not because there was an unavoidable conflict

between the statutes, but because the legislative history

showed that Congress did not intend for NEPA to apply.

Fourth, the court in Pacific Legal Foundation, 657 F.2d

at 840, found that the legislative histories of NEPA and the

ESA indicate that Congress did not intend that the Secretary

prepare an EIS before listing a species as endangered or

threatened under the ESA. As we discuss in part III.B.2.a.,

supra, the legislative histories of NEPA and the ESA

likewise indicate that Congress did not intend that the

Secretary file an EIS before designating a critical habitat. In

sum, we find that the analysis in Pacific Legal Foundation

applies to the instant case, and that to apply NEPA to the

ESA would further the purposes of neither.

28a

IV. CONCLUSION

We find that Douglas County does have standing to chal-

lenge the Secretary’s decision not to prepare an EIS before

designating the Northern Spotted Owl critical habitat, based

on its procedural injury. On the merits, we find that NEPA

does not apply to the Secretary’s decision to designate a

habitat for an endangered or threatened species under the

ESA because (1) Congress intended that the ESA critical

habitat procedures displace the NEPA requirements, (2)

NEPA does not apply to actions that do not change the physi-

cal environment, and (3) to apply NEPA to the ESA would

further the purposes of neither statute.

This conclusion is as consistent with legal precedent as it

is with sound policy. The old growth forests and the species

that inhabit them are unique resources that deserve pro-

tection. We are reluctant, as was the Sixth Circuit in Pacific

Legal Foundation, 657 F.2d at 838, to make NEPA more of

an "obstructionist tactic" to prevent environmental protection

than it may already have become. Affirmed in part, reversed

in part, and remanded for consideration consistent with views

here and above expressed.

Each side to bear their own costs of suit.

29a

APPENDIX B

DOUGLAS COUNTY, PLAINTIFF,

MANUEL LUJAN, DEFENDANT.

Civ. No. 91-6423-HO.

United States District Court,

D. Oregon.

Dec. 22, 1992.

ORDER

HOGAN, District Judge:

Plaintiff Douglas County filed this action for declaratory

judgment and injunctive relief challenging defendant’s failure

to prepare an environmental impact statement (EIS) relative

to designating critical habitat for the Northern Spotted Owl.

Plaintiff and defendant have filed cross motions for summary

judgment (# 15, # 60). Intervenor plaintiffs Coos County and

Josephine County also seek summary judgment (# 36,

# 41).'

' Even though there are intervenor plaintiffs, this order refers to

plaintiff in the singular.

30a

FACTS

On June 26, 1990, the United States Fish and Wildlife

Service (FWS) listed the Northern Spotted Owl as a threat-

ened species pursuant to the Endangered Species Act (ESA),

16 U.S.C. § 1531, et seg. See 55 Fed.Reg. 26,114 (June

26, 1990). ESA requires "to the maximum extent prudent

and determinable,” critical habitat to be designated concur-

rently with the listing of a species. 16 U.S.C.

§ 1533(a)(3)(A). In its final rule listing the Northern Spotted

Owl as threatened, FWS found that critical habitat was not

determinable at that time. The failure to designate critical

habitat was challenged in federal court and FWS was ordered

to publish a proposed critical habitat designation by April 30,

1991, and to publish a final designation rule "at the earliest

possible time permitted under the appropriate regulations."

Northern Spotted Owl v. Lujan, 758 F.Supp. 621, 629-630

(W.D.Wash. 1991).

On May 6, 1991, FWS published a proposed rule desig-

nating approximately 11,602 acres of public and private land

within Oregon, Washington, and California as critical

habitat. 56 Fed.Reg. 20,816 (May 6, 1991), Memorandum

in Support of Defendant’s Motion for Summary Judgment

(# 62), Exhibit 3. Part of the proposed rule stated: "The

Service has determined that an Environmental Assessment,

as defined under the authority of the National Environmental

Policy Act of 1969, need not be prepared in connection with

regulations adopted pursuant to section 4(a) of the Act." 56

Fed.Reg., supra at 20,824. The Secretary is required to

designate habitat "on the basis of the best scientific data

available” and to take "into consideration the economic

impact, and any other relevant impact, of specifying any

particular area as critical habitat." 16 U.S.C. § 1533(b)(2).

In arriving at the May 6, 1991 proposed designation, FWS

i ieiaaciinemaiiaidiaieaeaill

3la

relied i part on a preliminary economic analysis it previous-

ly prepared. Memorandum in Support of Defendant's

Motion for Summary Judgment (# 62), Exhibit 2. FWS

acknowledged that it would need to conduct further study and

consider additional data, including public comments, prior to

publishing the final designation. 56 Fed.Reg., supra at

20,821.

On May 15, 1991, Douglas County filed a "Notice of

Intent to File Citizens Suit Under Sec 11(g) of the Endan-

gered Species Act for Failure to Abide by the National

Environmental Protection Act." See Memorandum in

Support of Motion for Summary Judgment (# 19), Exhibit A.

As part of the rule-making process, FWS requested com-

ments from the general public relative to the critical habitat

proposal. On May 30, 1991, plaintiff submitted formal

comments to the Secretary, stating that the Secretary had

failed to comply with NEPA requirements by not exploring

a range of alternatives to the proposed action.

Plaintiff requested the assistance of United States Senator

Robert Packwood to determine the status of plaintiff’s notice

of intent to file citizen suit. On August 5, 1991, FWS sent

Senator Packwood a letter stating "(t)he Service believes that,

under the reasoning of [the Pacific Legal Foundation v.

Andrus| decision, preparing an EIS on the proposed critical

habitat designation would not further the goals of NEPA or

the Act." Memorandum in Support of Motion for Summary

Judgment (# 19), Exhibit B.

After the comment period closed on the proposed

designation, FWS prepared a second economic analysis

report which reviewed a range of economic impacts including

an analysis of employment and revenue loss in the timber

industry in each county in the affected states. Memorandum

in Support of Defendant’s Motion for Summary Judgment

(# 62), Exhibit 5, pp. 19-25, and Tables 9-11.

32a

On the basis of the second report, comments received on

the first proposed designation and other data and analysis,

FWS published a revised proposed rule in which 8,240,160

acres were proposed as critical habitat. 56 Fed.Reg. 40002,

(August 13, 1991), Memorandum in Support of Defendant’s

Motion for Summary Judgment (# 62), Exhibit 6. In the

revised proposed designation, FWS excluded all private, trib-

al, and some state lands and revised some of the critical

habitat units. In the second proposed rule, FWS affirmed its

determination that an Environmental Assessment (EA) was

not required.

The primary reason FWS published two proposed

designations was to allow additional review and consideration

of the economic impact of critical habitat designation and to

permit full opportunity for public comment. 56 Fed.Reg.

20,822. Memorandum in Support of Defendant’s Motion for

Summary Judgment (# 62), Exhibit 3.

FWS held another 60 day comment period following the

publication of the revised proposed designation and continued

to conduct further analysis of economic impact of the

designation. FWS published a final "Economic Analysis of

Critical Habitat Designation Effects for the Northern Spotted

Owl" in January, 1992. See Memorandum in Support of

Defendant’s Motion for Summary Judgment (# 62), Exhibit

On January 15, 1992, FWS published its final rule

designating Northern Spotted Owl critical habitat. 57

Fed.Reg. 1796 (Jan. 15, 1992). Memorandum in Support of

Defendant’s Motion for Summary Judgment (# 62), Exhibit

8. The final designation includes approximately 6.9 million

acres. All state, private, tribal, and other non-federal lands

are excluded. As with the previous proposed rules, the final

rule stated that FWS had determined that it was not required

to prepare an EA in conjunction with the designation. "A

33a

notice outlining the Service’s reasons for this determination

was published in the Federal Register on October 25, 1983

(48 FR 49244)." Id., 57 Fed.Reg. 1833.

FWS premised its conclusion that an EA was not neces-

Sary in conjunction with the designation primarily on the

reasoning in a Sixth Circuit opinion and a letter received

from the Council on Environmental Quality (CEQ). The

Sixth Circuit opinion holds that, as a matter of law, FWS is

exempt from the NEPA requirement to prepare an EIS prior

to listing decisions under ESA. Pacific Legal Foundation v.

Andrus, 657 F.2d 829 (6th Cir. 1981).

The letter from CEQ, "whose interpretation of NEPA is

entitled to substantial deference," Andrus v. Sierra Club, 442

U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943

(1979), urged FWS to cease preparing EAs prior to making

ESA listing decisions. See Memorandum in Support of

Motion for Summary Judgment (# 19), Exhibit C.

On September 25, 1991, Douglas County filed this action

alleging four claims. Plaintiff's first claim alleges that FWS

violated NEPA by failing to develop a range of alternatives

to the final Northern Spotted Owl critical habitat designation;

plaintiff's second claim alleges that FWS violated NEPA by

failing to identify and disclose the cumulative impact of the

final Northern Spotted Owl critical habitat designation in

conjunction with other connected actions; plaintiff’s third

claim alleges FWS violated NEPA and ESA by failing to

consider other relevant impacts of designating critical habitat;

and, plaintiff's fourth claim alleges FWS violated NEPA and

ESA by failing to consider the social and economic impacts

of designating a particular area as critical habitat. Complaint

(# 1), pp. 6-9.

Plaintiff seeks a declaratory judgment that defendant

violated NEPA and ESA and an injunction prohibiting

defendant from taking any action to designate critical habitat

34a

for the Northern Spotted Owl until an EIS or EA is prepared.

Id., p. 9.

ESA CLAIMS

Plaintiff’s third and fourth claims for relief are based on

alleged violations of both NEPA and ESA. The NEPA

portion of those claims is based on FWS’s alleged failure to

consider various impacts of the Northern Spotted Ow! critical

habitat designation and is logically subsumed within

plaintiff's second (NEPA) claim. Therefore, I will address

plaintiff's third and fourth claims under ESA separately and

address the NEPA portion of those claims, to the extent

necessary, below.

Endangered Species Act Claims:

Defendant moves the court for summary judgment on

plaintiff's third and fourth claims under ESA. See

Defendant’s Memorandum in Support of Defendant’s Motion

for Summary Judgment (# 62), pp. 30-34. Plaintiff respond-

ed that it had standing to assert ESA claims but did not

respond to defendant’s arguments on the merits. See Plain-

tiffs’ Brief in Opposition (# 68), pp. 13-14. Plaintiff's

memorandum in support of the motion for summary judg-

ment (# 19) only discusses the claims under NEPA.

If a moving party satisfies the initial burden of demon-

strating the absence of a material and triable issue of fact, the

burden shifts to the opposing party, who must present

probative evidence tending to support its claim or defense.

Intel Corp. v. Hartford Acc. and Indem. Co., 952 F.2d 1551

(9th Cir.1991). In this case, plaintiff has not controverted

the facts asserted by defendant regarding plaintiff's ESA

claims.

35a

Plaintiff's third claim for relief asserts that FWS "failfed]

to consider impacts of designating critical habitat upon

wildlife species which utilize forest habitat other than the

northern spotted owl (i.e., deer, elk).” Complaint (# 1), p.

8. However, the record reflects that FWS did consider

whether the proposed designation of critical habitat would

impact other species such as deer and elk and stated a

rational basis for its conclusion that the critical habitat

designation would not negatively impact those species. See

56 Fed.Reg., supra at p. 40,028 [service response to Issue

38].

Plaintiff’s fourth claim alleges that FWS did not consider

"the social and economic impacts of designating Douglas

County as critical habitat . . . prior to proposing the specific

areas within the county as critical habitat." Complaint (# 1),

p. 9.

The record reflects that FWS prepared an analysis of the

economic impacts of designation for publication in conjunc-

tion with the proposed rule prior to each proposed designa-

tion. See Memorandum in Support of Defendant’s Motion

for Summary Judgment (# 62), Exhibits 2 and 5. The

second proposed designation was published for the purpose

of considering economic impacts in greater detail than was

accomplished: with the original revised proposal. 56

Fed.Reg., supra at 20,822. The second report examined

economic impacts on a county by county basis in each of the

affected states. See Memorandum in Support of Defendant’s

Motion for Summary Judgment (# 62), Exhibit 5, Tables

9-11. FWS reviewed county level employment impacts and

revenue sharing impacts with calculations of the employment

and revenue losses. FWS also developed and implemented

a four step process to examine whether any critical habitat

area should be excluded because the benefits of exclusion

outweighed the benefits of inclusion. Memorandum in

36a

Support of Defendant’s Motion for Summary Judgment

(# 62), Exhibit 4, p. 1.

With regard to each impacted county, FWS considered

the economic impacts, anticipated future harvest, owl factors,

and other benefits and proposed a decision on exclusion. See

e.g., Id., at B-9—B-11 (considering each factor with respect

to Douglas County).

In summary, the administrative record in this case reveals

that FWS adequately considered relevant economic issues

associated with critical habitat designation and particularly

those of employment and revenue loss due to decreased

federal timber sales. Plaintiff was afforded an opportunity

to respond to both FWS’s economic analysis and FWS’s

balancing process.

Based on the foregoing, | find that FWS took a "hard

look" at the impacts in question. Steppe v. Sierra Club, 427

U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d

576 (1976), and conducted a "reasonably thorough discus-

sion" of the effects at issue. Trout Unlimited v. Morton, 509

F.2d 1276, 1283 (9th Cir. 1974). See also, Marble Mountain

Audubon Soc. v. Rice, 914 F.2d 179 (9th Cir. 1990).

Defendant’s motion for summary judgment on plaintiff's

third and fourth claims for relief under ESA is allowed.’

NEPA CLAIMS

Standing:

Article III of the United States Constitution limits the

jurisdiction of federal courts to actions involving an actual

? Because I find that defendant is entitled to prevail on the merits of

these claims, it is not necessary to address defendant’s argument that

plaintiff lacks standing to pursue its third claim for relief under ESA.

37a

"case" or "controversy," a limitation that manifests itself, in

part, through the doctrine of standing. Secretary of State v.

Joseph H. Munson Co., 467 U.S. 947, 954, 104 S.Ct. 2839,

2845, 81 L.Ed.2d 786 (1984); Ripplinger v. Collins, 868

F.2d 1043, 1047 (9th Cir. 1989).

To invoke the jurisdiction of the court so as to satisfy the

standing requirements of Article III, plaintiff must demon-

strate that it has (1) sustained a personal injury, (2) that is

fairly traceable to defendant’s allegedly unlawful conduct,

and (3) that its requested relief is likely to redress the alleged

injury. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315,

3324, 82 L.Ed.2d 556 (1984); Ripplinger v. Collins, supra

at 1047.

The standing requirements plaintiff must satisfy to obtain

the judicial review it seeks in this action do not end with

those imposed by Article III. Plaintiff must also demonstrate

that its claims are within the zone of interest sought to be

protected by the statute which forms the basis of its claims.

This requirement is imposed with regard to plaintiff's NEPA

claims, because plaintiff seeks judicial review of those claims

under the Administrative Procedure Act (APA), 5 U.S.C.

§ 702. Plaintiff must rely on section 702, because NEPA

does not contain a provision granting rights to judicial review

of agency decisions allegedly reached in violation of its

procedural requirements.

Section 702 requires plaintiffs seeking judicial review of

agency actions to demonstrate that they have suffered legal

wrong or have been adversely affected or aggrieved "within

the meaning of the relevant statute." 5 U.S.C. § 702.

Therefore, standing requirements as applied to NEPA

cases include an injury which is arguably within the zone of

interest to be protected or regulated by the statute that

plaintiff claims the agency violated. Lujan v. National

Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111

tee eae- eerste name

38a

L.Ed.2d 695 (1990); Port of Astoria v. Hodel, 595 F.2d 467

(9th Cir. 1979).

Defendant contends that plaintiff does not have standing

to assert NEPA claims in this case, because it "avers no

specific and concrete injury cognizable under NEPA." Reply

Memorandum in Support of Defendant’s Motion for Sum-

mary Judgment (# 72), p. 3. Plaintiff argues that it will

suffer injury to a variety of proprietary, environmental,

economic, and procedural interests as a result of defendant’s

failure to comply with NEPA.

Defendant contends, however, that "Plaintiff has stated

no injury that is not economic when closely examined,” and

that injury to economic interests are not within the zone of

interest of NEPA. /d.

I find that plaintiff's claims are within the zone of

environmental and procedural interests protected by NEPA

and, therefore, that plaintiff has the requisite standing to

bring this action.

I am not persuaded by defendant’s argument that all of

plaintiff’s alleged injuries are in essence injuries to economic

interests. Plaintiff has an environmental interest in managing

the fish and wildlife within its boundaries. The affidavit of

Troy Reinhart, submitted in support of plaintiff's motion for

summary judgment (# 15), indicates a potential environmen-

tal injury to species on the Umpqua National Forest with

habitat needs different from those of the Northern Spotted

- Owl.

In addition, I find that NEPA’s concern with the "quality

of the human environment," 42 U.S.C. § 4332(2)(C), is not

as restrictive as urged by defendant. As noted in Trinity

Episcopal School Corp. v. Romney, 523 F.2d 88, 93 (2nd

Cir.1975): "The National Environmental Policy Act contains

no exhaustive list of so-called environmental considerations

but without question its aims expend beyond water and air

39a

pollution (citation omitted). The Act must be construed to

include protection of the quality of life of city residents.

Noise, traffic, overburdened mass transportation systems,

crime, congestion and even the availability of drugs all affect

the urban ‘environment’. . ."

In County of Josephine v. Watt, 539 F.Supp. 696, 704

(N.D.Calif. 1982), county and lumber companies who sought

to protect their individual financial interests, but also the

quality of life and public interest of their geographic region

were afforded standing under NEPA.

In this case, plaintiff has presented evidence which

establishes that defendant's designation of critical habitat will

profoundly affect the quality of life in Douglas County, and

thus has established an environmental injury sufficient to

establish standing under NEPA.

In addition, plaintiff has standing based upon injury to

procedural interests under NEPA. The failure to follow

procedures designed to ensure that the environmental

consequences of a proposed action are adequately evaluated

is sufficient to support standing for purposes of challenging

an agency’s failure to prepare an environmental impact

Statement. This procedural injury alone is sufficient for

Standing, if the injury is alleged by a plaintiff "having a

sufficient geographical nexus to the site of the challenged

project that he may be expected to suffer whatever envi-

ronmental consequences the project may have." Friends of

the Earth v. U.S. Navy, 841 F.2d 927, 932 (9th Cir. 1988):

City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir. 1975).

There is no question that Douglas County is within the

affected geographic area and can be expected to incur

environmental consequences of the designation of critical

habitat for the Northern Spotted Owl.

As noted in Oregon Environmental Council v. Kunzman,

817 F.2d 484, 491 (9th Cir. 1987), "(p)rocedural failures in

40a

EIS preparation create a risk that environmental impacts will

be overlooked and provide sufficient ‘injury in facts to

support standing." See also Trustees for Alaska v. Hodel,

806 F.2d 1378, 1380 (9th Cir. 1986).

Lujan v. National Wildlife Federation, supra, appears to

establish a more restrictive standard which requires a plaintiff

to not only demonstrate an “adverse effect" or "aggrieve-

ment," but also that the interests were actually affected

within the meaning of the relevant statute. However, the

"actually affected" test is really nothing more than a restate-

ment of the "geographical nexus” test discussed in City of

Davis v. Coleman, supra. This conclusion is supported by

the recent Supreme Court decision in Manuel Lujan, Jr. v.

Defenders of Wildlife, — U.S. —, 112 S.Ct. 2130, 119

L.Ed.2d 351 (1992), where the court noted that ". . . one

living adjacent to the site for proposed construction of a

federally licensed dam has standing to challenge the licensing

agency’s failure to prepare an Environmental Impact State-

ment, even though the dam will not be completed for many

years." Lujan v. Defenders of Wildlife, supra at —, 112

S.Ct. at 2142, n. 7.

Therefore, although procedural injury alone is not

sufficient to establish standing, standing for procedural injury

does exist where the procedures in question are designed to

protect some threatened, concrete interest that is the ultimate

basis for standing. /d, n. 8.

Douglas County is within the area where the effects of

the critical habitat designation will occur. The potential

environmental and quality of life impacts resulting from the

procedural injury in this case are the type of injuries NEPA

seeks to prevent. Therefore, plaintiff's alleged procedural

injuries are sufficient to establish plaintiff's standing to assert

NEPA claims.

4la

Discussion:

The National Environmental Policy Act of 1969 (NEPA)

requires "to the fullest extent possible," that "all agencies of

the Federal Government" shall:

als for legislation and other Federal actions significantly

affecting the quality of the human environment, a detailed

Statement by the responsible official on—

(i) the environmental effects of the proposed action,

(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented

(ili) alternatives to the proposed action,

(iv) the relationship between local short-term uses of’

man’s environment and the maintenance and enhancement

of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.

42 U.S.C. § 4332(C).

NEPA requirements do not mandate particular results or

impose substantive obligations upon the agencies, but they do

mandate a necessary process. Robertson v. Methow Valley

Citizen’s Council, 490 U.S. 332, 109 S.Ct. 1835, 104

L.Ed.2d 351 (1989).

If an agency is unsure whether a proposed action requires

an EIS, federal regulations (40 CFR 1508.9) direct the

agency tO prepare an environmental assessment (EA) to

determine whether an EIS must be prepared. ONRC v. Lyng,

882 F.2d 1417, 1421-22 (9th Cir.1989). The EA must be

sufficiently documented to satisfy the reviewing court that the

decision not to prepare an EIS was not arbitrary, capricious,

an abuse of discretion or otherwise not in accordance with

42a

law. Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

Plaintiff contends that the Secretary’s designation of

critical habitat in this case is a major federal action to which

NEPA procedural requirements apply.

Defendant contends that NEPA does not apply to the

designation of critical habitat under ESA. The "respective

statutes’ language and legislative histories indicate, Congress

never intended that the purely procedural obligations of

NEPA be superimposed on the procedure the Secretary

already is obliged to follow in making critical habitat

designations." Memorandum in Support of Defendant’s

Motion for Summary Judgment (# 62), p. 34.

The proposed agency action in this case affects approxi-

mately 6.9 million acres. The magnitude of that action in

terms of number of acres alone leads to the conclusion that

the rule constitutes a major federal action. The record

reflects that the designation will impact the economy,

employment, public health, and social services in the affected

geographic area. Therefore, the action clearly affects the

"quality of the human environment."

The issue then becomes whether there is an express or

implied exemption from NEPA requirements for the designa-

tion of critical habitat under ESA.

Prior to September, 1983, FWS routinely prepared

environmental assessments for all regulations under which a

species was listed or critical habitat was designated. On

October 25, 1983, FWS issued a notice that it had deter-

mined that environmental assessments as defined by NEPA

need not be prepared in connection’ with regulations adopted

pursuant to Section 4(a) of ESA. 48 Fed.Reg. 49244 (Oct.

25, 1983). This procedural change was based on recom-

mendations from the Council on Environmental Quality

(CEQ) that Section 4 listing decisions are exempt from

43a

NEPA review as a matter of law. /d. The CEQ recommen-

dation was based primarily on Pacific Legal Foundation v.

Andrus, 657 F.2d 829 (6th Cir.1981). See Memorandum in

Support of Motion (# 19), Exhibit C. The letter also

suggested that a listing action "could be classified as a

categorical exclusion." Id.’

However, defendant contends:

FWS has not relied on a categorical exclusion in deter-

mining not to prepare an EIS. As stated in the 1983

"Rule-related notice," the decision to cease preparation of

NEPA documentation for Section 4(a) regulations (listing

and critical habitat regulations) was based primarily on

the Court’s reasoning in Pacific Legal Foundation . . .

(where the court found) . . . not that there was a categor-

ical exclusion, but that FWS was exempt from NEPA.

Defendant’s Reply Memorandum (# 72), p.‘11.

The crux of defendant’s argument is that it is exempt

from NEPA when designating critical habitat "for the same

reasons the Court in Pacific Legal Foundation held it was

exempt from NEPA when it conducted a listing determina-

tion." Reply Memorandum (# 72), p. 12. Therefore, the

issue to be decided here is whether the court’s reasoning in

Pacific Legal Foundation v. Andrus regarding listing deci-

sions can be extended and applied to decisions to designate

critical habitat.

In Pacific Legal Foundation v. Andrus, the Sixth Circuit

held that the Secretary is legally exempt from NEPA in

performing the ESA obligation to list endangered and

threatened species pursuant to Section 4(a) of ESA. The

court’s holding rests on four grounds. (1) To require the

> For definition of Categorical exclusion,” see 40 CFR 1508.4.

Secretary to comply with NEPA process when making a

listing decision under ESA, “does not and cannot serve the

purpose of the Endangered Species Act." Pacific Legal

Foundation v. Andrus, supra at 835. (2) To require the

Secretary to prepare an EIS when making listing decisions

under ESA, “would not serve the purpose for filing such a

statement." /d. at 836. (3) The Secretary’s "action in listing

species as endangered or threatened furthers the purpose of

NEPA even though no impact statement is filed. /d. at 837.

(4) The legislative histories of both ESA and NEPA support

the view that the Secretary is exempt from compliance with

NEPA process when making a decision to list a species under

ESA. Id. at 838-40.

Every federal agency is expected to comply with NEPA

unless there is a statutory conflict with the agency’s autho-

rizing legislation that expressly prohibits or makes full

compliance impossible. See H.R.Conf.Rep. No. 91-765,

9ist Cong., Ist Sess. (1969), reprinted in [1969] U.S.Code

Cong. & Admin.News 2767, 2770; Flint Ridge Development

Co. v. Scenic Rivers Ass’n of Oklahoma, 426 U.S. 776,

787-88, 96 S.Ct. 2430, 2437-38, 49 L.Ed.2d 205 (1976).

In Flint Ridge, supra, the issue was whether the Depart-

ment of Housing and Urban Development had to file an im-

pact statement before allowing a disclosure letter filed by a

private developer to become effective. HUD argued it did

not, because (1) it had only limited discretion and no power

to consider environmental concerns, and (2) it had to act

within 30 days or the disclosure letter automatically became

effective and this time-table made compliance with NEPA

impossible. The Court found preparation of the impact

statement inconsistent with HUD’s statutory duties because

of the time constraint and did not reach the first argument.

See 426 U.S. at 787-91, 96 S.Ct. at 2437-40.

45a

In Pacific Legal Foundation v. Andrus, the court ad-

dressed the issue left open by the Supreme Court in Flint

Ridge and found that, because there was a conflict between

NEPA and ESA’s statutory procedures relating to the listing

of a species as threatened or endangered, no NEPA com-

pliance was required when listing decisions were made.

The statutory mandates and procedures applicable to

listing threatened or endangered species are distinguishable

from those governing the designation of critical habitat.

Therefore, although the analysis in Pacific Legal Foundation

v. Andrus is useful in deciding the issue, it is not controlling

in this action. 7

|. In Pacific Legal Foundation v. Andrus, the court

found that compliance with NEPA process when making

listing decisions under ESA "does not and cannot serve the

purpose of the Endangered Species Act." See, 657 F.2d at

835. The reason for the court’s conclusion was that the

Secretary is required to list a species as endangered or

threatened based on five factors set forth in ESA. "The

Secretary does not have the discretion to consider the five

factors to be considered in filing an impact statement.” /d.

The court reasoned that the requirement of NEPA to address

procedurally that which cannot be considered substantially

under ESA indicates that NEPA was not meant to apply. /d.

at 835-36. :

FWS argues that "as in its original decision to list a

species, FWS does not have the discretion to consider the

wide range of impacts required to be analyzed in preparing

NEPA documentation." Memorandum in Support of De-

fendant’s Motion (# 62), p. 37. Therefore, FWS concludes

that "the tension that the Sixth Circuit found to exist between

NEPA and ESA in the context of listing decisions also exists

in the context of critical habitat designation." /d., pp. 37-37.

46a

The critical habitat designation process is set forth in 16

U.S.C. § 1533(b)(2). First, FWS must identify areas that

meet the scientific definition of critical habitat found in 16

U.S.C. § 1532(5)(A). Then, FWS is to consider the eco-

nomic and other relevant impacts of designation for each

area. After consideration of the economic and other relevant

impacts, FWS must determine whether any identified areas

should be excluded from the final critical habitat designation

because the benefits of exclusion outweigh the benefits of

designation. Regardless of considerations relevant to the

exclusion determination, FWS must designate an area if the

failure to do so would result in extinction of the species.

Thus, FWS has the discretion to consider the "economic

impact and any other relevant impact of specifying any

particular area as critical habitat." 16 U.S.C. § 1533(b)(2).

"[A]ny other relevant impact" can logically be construed as

including the wide range of impacts required to be analyzed

in preparing NEPA documentation. I am not persuaded by

defendant’s attempt to distinguish between the exercise of

discretion with respect to the “designation process" as

opposed to the "exclusion process." The exclusion process

is part of the designation process in that it results in the

identification of the area determined to be appropriate for

final designation. Therefore, to argue that discretion can be

exercised only with respect to excluding identified critical

habitat from final designation is a matter of semantics.

The fact that FWS discretion to exclude a specific area

from final designation is ultimately limited if doing so would

result in the extinction of the species, does not alter the fact

that it generally has wide discretion in exempting certain

areas, short of the extinction scenario. See Forelaws on

Board v. Johnson, 743 F.2d 677, 680-681 (9th Cir. 1984)

[declining to follow reasoning of Pacific Legal Foundation v.

Andrus in part because the action the statute required the

47a

agency to take included broad discretionary obligation to

adopt measures to protect the environment. }

Defendant also argues that the designation process already

obligates FWS to prepare a complete analysis of all of the

impacts relevant to its decision on final habitat designation

and that any impacts examined in a NEPA document would

unnecessarily duplicate information FWS has already

developed and analyzed pursuant to 16 U.S.C.

§ 1533(b)(2).*

Although the statutes require an analysis of impacts that

is similar in some respects, defendant has argued that the

NEPA process requires analysis of a wide range of impacts

not contemplated under ESA. Further, defendant states:

"FWS is not contending that it has met the requirements of

NEPA, it is contending that it is exempt from the require-

ments of NEPA." Reply Memorandum (# 72), p. 9, n. 7.

Therefore, defendant acknowledges that NEPA requires a

wider range of analysis than required by ESA.

Based on the foregoing, I find that to impose the proce-

dural steps required by NEPA in addition to those FWS must

take under ESA would not "either duplicate information FWS

already has to develop and analyze . . . or represent informa-

tion that FWS may not legally consider in the designation

process." Memorandum in Support (# 62), pp. 38-39.

Contrary to defendant’s argument, there are no clear "bright

lines" that limit the impacts the Secretary may consider in

designating critical habitat NEPA review is designed to

* This argument has the ring of a “functional equivalent” argument.

However. despite the suggestion in Pacific Legal Foundation v. Andrus

that ESA may now provide the functional equivalent of an impact

statement when critical habitat is designated, See 657 F.2d at p. 835,

defendant contends that it is not making a functional equivalent argument.

In relying exclusively on an exemption argument, defendant seems to be

putting all of their eggs in one arguably vulnerable basket.

48a

require consideration of all of the implications of the pro-

posed agency action. Such a review is not incompatible with

the purpose or the requirements of ESA, and there are no

conflicting statutory mandates. The fact that ESA has a

similar, although less extensive, impacts review and analysis

requirement supports the conclusion that the NEPA process

serves the purpose of ESA.

2. The second determining factor in Pacific Legal

Foundation v. Andrus was the court’s conclusion that

preparation of an EIS would not serve the purpose of NEPA

because "the statutory mandate of ESA prevents the Secre- -

tary from considering the environmental impacts when listing

a species as endangered or threatened." See 657 F.2d at 836.

As noted above, NEPA is primarily a procedural statute

to insure that an agency considers the environmental impacts

of its actions. The EIS is evidence that environmental

concerns were considered by the agency. In Pacific Legal

Foundation v. Andrus, the court held that the impact state-

ment “cannot insure the agency made an informed decision

and considered environmental factors where the agency has

no authority to consider environmental factors." /d.

Defendant contends that similar restrictions on the

Secretary’s discretion in designating critical habitat render

the examination of environmental effects irrelevant to the

ultimate decision. "Because the designation of critical habitat

is circumscribed by considerations of only the ‘best scientific

data,’ 16 U.S.C. § 1533(b)(2), FWS is prevented from

considering—any environmental impacts other than those

economic and other impacts relevant to the exclusion

process." Reply Memorandum (# 72), p. 9.

As discussed above, defendant’s argument in this regard

is based on an unreasonably restrictive interpretation of ESA.

Although the initial identification of critical habitat is to be

based on "the best scientific data available,” 16 U.S.C.

49a

§ 1533(b)(2), the identification of habitat is the beginning and

not the end of the statutory process. After critical habitat has

been identified, it is subject to review and analysis in terms

of economic and other relevant impacts to determine which

areas identified as within the strict statutory parameters of

critical habitat should be excluded from final designation. |

find that the Secretary’s discretion to consider environmental

impact is not as "circumscribed" as defendant contends and

that developing NEPA documentation for critical habitat

designation does serve the purpose of NEPA.

Defendant also contends that because a critical habitat

designation represents a mandatory obligation that FWS must

perform once it decides to list a species, it is not the type of

agency action that is possible to be influenced by consider-

ations identified in NEPA documentation. In other words,

"designation is not a ‘proposal’ to act that FWS may decide

whether or not to adopt. See 40 CFR § 1502.14(d) (requir-

ing inclusion of a ‘no action’ alternative in EIS’s discussion

of alternatives)." Memorandum in Support (# 62), p. 41.

However the exclusion provisions of the statutory scheme in

a sense make the decision to designate specific areas similar

to "proposals" to act in a certain way and a decision to

exclude a certain specific area can be compared to the

adoption of a "no action” alternative.

I find that because the statutory requirements and

limitations are factually distinguishable, the Pacific Legal

Foundation v. Andrus conclusion that filing an EIS in the

context of listing would not serve the purpose of NEPA is

not applicable to critical habitat designation.

3. The third basis for the Court’s decision in Pacific

Legal Foundation v. Andrus was that "the Secretary’s action

in listing species as endangered or threatened furthers the

purpose of NEPA even though no impact statement is filed."

See 657 F.2d at p. 837. Defendant contends that the

50a

designation of critical habitat, like listing decisions, serves

the environmental goals of NEPA, even if it is not accompa-

nied by preparation of NEPA documentation.

Reduced to its essence, defendant’s argument in this

regard is that NEPA does not apply to agencies whose

function it is to protect the environment. Although the court

in Pacific Legal Foundation v. Andrus concluded that

Congress did not intend to have NEPA apply to "envi-

ronment enhancing agencies," see 657 F.2d at p. 838, n. 11,

the Ninth Circuit has taken a different view.

First, as noted in Pacific Legal Foundation v. Andrus,

some courts have recognized that one of the purposes of

NEPA is to inform Congress, the Executive and the public

about the environmental consequences of various agency

actions. The Ninth Circuit is one such court. See Trout

Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974).

Although designation of critical habitat could serve NEPA’s

environmental enhancement goals without the preparation of

an EIS, the secondary informative function of NEPA is not

met unless analysis and documentation takes place.

Secondly, while some cases have indicated that agencies

whose mission it is to protect the environment are exempt

from NEPA requirements, the Ninth Circuit has applied this

rule very narrowly. The leading case on this issue is Flint

Ridge Development v. Scenic Rivers Ass’n of Oklahoma,

supra, in which the court held that NEPA requires all

agencies to comply with its requirements unless there is a

clear and unavoidable statutory conflict. As discussed above,

there is no such conflict in the present case.

Requiring the Secretary to file an impact statement or

conduct an environmental assessment under the circumstances

of this case would not necessarily "hinder . . . efforts at

attaining the goal of improving the environment.” Pacific

Legal Foundation v. Andrus, supra at 837. Even if the

Sla

purpose of the agency or the agency action (designating

critical habitat in this case) is to enhance the environment or

maintain the status quo, the environmental consequences of

a particular agency action cannot be determined absent an

environmental assessment.

Judge Frye addressed this issue in Portland Audubon

Society v. Lujan, (D.Or. 1992), 795 F.Supp. 1489, in which

the BLM argued it was exempt from NEPA, because (1) the

requested relief under the NEPA claim conflicted with the

O & C Act, 43 U.S.C. § 1181 et seq.; and, (2) it should be

excused from complying with NEPA because the failure to

comply would, in effect, have a positive environmental

impact.°

In resolving the issue, Judge Frye did not find either

argument persuasive. As to the positive environmental

impact theory that the agency’s non-action would in effect

preserve habitat, she noted that such a "conclusion .. .

would allow the BLM to continue to act insulated from

public comment because of its own delay in examining the

environmental consequences of its actions." Portland

Audubon Society v. Lujan, supra at 1507. Similarly, in this

case, the contention that designation of critical habitat

enhances environmental quality presumes a conclusion that

is not clear absent an environmental assessment.

Under the law of the Ninth Circuit, environmental

enhancing agencies and actions are not exempt from NEPA

absent a clear and unavoidable statutory conflict. The

relevant inquiry in each case is whether the proposed action

has a significant impact on the quality of the human environ-

ment. This question cannot be answered without at least

* Although the BLM is not necessarily an agency “whose function

it is to protect the environment,” it’s non-compliance with NEPA was

allegedly an environment enhancing action in that case.

52a

going through the preliminary environmental assessment

stage. See Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986).

It is only through the analysis mandated by NEPA that the

true impacts of an agency action can be identified and

evaluated. -

4. In Pacific Legal Foundation v. Andrus, the court

found: "Though not without ambiguity, the legislative

history suggests that NEPA was not intended to be applied to

agencies whose function was to protect the environment."

See 657 F.2d at 838. While observing that the legislative

history of the Endangered Species Act of 1973 is "very

sparse,” the court concluded "Viewing all of the legislative

history of both acts, this court concludes that Congress

intended listing of a species as endangered or threatened to

be a mandatory act dependent upon the five factors found in

ESA and not upon environmental impact concerns found in

NEPA and that Congress did not intend to require the Secre-

tary to file an environmental impact statement before listing

a species as endangered or threatened under ESA.” /d. at

839-40.

Defendant contends that the legislative histories of NEPA

and ESA indicate that Congress did not intend for NEPA to

apply to designation of critical habitat under ESA.

The Court in Pacific Legal Foundation v. Andrus ac-

knowledged that NEPA’s legislative history was not without

ambiguity. Although the Sixth Circuit concluded that NEPA

was not intended to be applied to agencies whose function is

to protect the environment, as discussed above in Section 3,

the Ninth Circuit has taken the position that NEPA applies to

every major federal action absent a clear and unavoidable

statutory conflict.

NEPA had been in effect approximately nine years when

Congress amended ESA in 1978. As part of the 1978

amendments, Congress provided that the Secretary was

53a

required to consider the economic effects and other relevant

impacts of the designation of critical habitat and publish an

evaluation of any activities that may be impacted by the

designation. Defendant argues that these clearly are steps

that NEPA and the implementing regulations already required

of federal agencies when contemplating a proposed major

federal action significantly affecting the quality of the human

environment. "In making these amendments to ESA there-

fore, Congress must have been operating under the assump-

tion that NEPA did not apply to critical habitat designation

because otherwise such amendments would have been largely

superfluous. See Merrell v. Thomas, 807 F.2d 776, 780 (9th

Cir. 1986)." Memorandum in Support (# 62), p. 43.

Were there no other legislative history the implication

suggested by defendant’s argument might be convincing.

However, I find from other aspects of the legislative history

of the 1978 amendments that the most reasonable interpre-

tation of legislative intent is that the application of NEPA to

designation of critical habitat depends on whether the specific

designation is a major federal action. This conclusion is

consistent with the Sixth Circuit’s opinion in Pacific Legal

Foundation v. Andrus. See 657 F.2d p. 840, n. 13.

During debates relative to the 1978 amendments to ESA,

Senator McClure introduced an amendment defining the

designation of critical habitat as a major federal action

significantly affecting the quality of the human environment,

requiring the filing of an EIS. See Cong.Rec. 21587, July

19, 1978. This amendment was originally offered in

committee and rejected. When it was offered again in the

Senate floor, Senator Wallop spoke in opposition. His

Opposition was not based on the belief that ESA should be

exempt from NEPA, but rather on the basis that it would

make filing an EIS an absolute requirement when in fact

many designations would not be major federal actions.

54a

Cong.Rec. 21589, July 19, 1978. Senator Wallop’s com-

ments indicate he believed ESA’s "silence . . . surely does

not prohibit suits to compel that environmental impact

statements be filed under the provisions of NEPA if the

action is determined to be a major Federal action. /d.

Senator McClure agreed with Senator Wallop and indicated

his desire to "underscore" the possibility that an EIS may be

required in connection with the designation of critical habitat.

Id. Senator McClure emphasized that he did not want the

record to suggest that absent a specific statutory requirement

of an EIS, that an EIS would never be required. /d. Al-

though the remarks of individual legislators should not be

given controlling effect, Northern Colorado Water Con-

servancy Dist. v. FERC, 730 F.2d 1509, 1518

(D.C.Cir. 1984), see also In re Kelly, 841 F.2d 908, 912 (9th

Cir. 1988), I believe that this discourse indicates that ESA’s

silence regarding NEPA’s requirements represents a consid-

ered choice to leave NEPA requirement determinations

dependent upon the facts of each particular situation.

Support for this position is found in the Conference Report

in which it is noted: . . . Where critical habitat is specified

. . actual notice of the regulation and any environmental

assessment or environmental impact statement prepared on it

is required to be given to all general local governments

within or adjacent to the proposed critical habitat at least 60

days prior to the effective date. 1978 U.S.Code Cong. and

Administrative News 9484, 9494.

Based on the above analysis, I find that the reasoning in

Pacific Legal Foundation v. Andrus does not lead to the

conclusion that FWS is exempt from NEPA requirements

when designating critical habitat. The court’s conclusion in

that case was specifically limited to listing decisions which

are statutorily distinguishable from the critical habitat

designation process. The rationales for the court’s conclu-

55a

sion in Pacific Legal Foundation v. Andrus, are simply not

present when the reasoning is examined in terms of critical

habitat designation.

Amicus Curiae Headwaters, et al., opposition:

Headwaters opposes Douglas County’s motion on the

grounds that: (1) an EIS is not required for actions that do

not change the physical environment, and (2) an EIS would

not promote the environmental purposes of ESA or NEPA.

Headwaters’ second ground essentially relies on Pacific Legal

Foundation v. Andrus, which as discussed above does not

control in this action.

Headwaters’ contention that NEPA does not apply to

actions that don’t change the physical environment is more

problematic.° However, regardless of the merits of Head-

waters’ argument in this regard, it cannot be determinative

of the issue before the court because it assumes a fact not in

evidence. That is, Headwaters’ argument assumes that the

designation decision will not effect changes in the physical

environment. As noted above, that presumption is not neces-

sarily accurate. For example plaintiff has presented evidence

that allowing more area to acquire old-growth characteristics

may impact species with different habitat requirements. In

short, it is not a "given" that defendant’s designation of

critical habitat will enhance or merely preserve the existing

environmental status quo. ;

CEQ regulations require NEPA documentation where a

major federal action has both beneficial and adverse effects,

* A similar argument was characterized as follows: "In essence

plaintiffs claim is that the Department of Agriculture must prepare an EIS

in order to leave nature alone." National Association of Property Owners

v. U.S., 499 F.Supp. 1223, 1265-66 (D.Minn.1980), aff'd, 660 F.2d

1240 (8th Cir.1981). The court was not persuaded by this argument.

56a

"even if the Federal agency believes that on balance the

effect will be beneficial." 40 CFR § 1508.27(b)(1); see

Environmental Defense Fund v. Marsh, 651 F.2d 983, 993

(Sth Cir.1981). In this case, the designation of critical

habitat allegedly has beneficial effects for the Northern

Spotted Owl, but adverse effects on other species and

adverse socio-economic effects on the human environment.

NEPA documentation must be prepared in such a mixed

effects situation. American Horse Protection Ass'n v.

Andrus, 608 F.2d 811, 814-815 (9th Cir.1979). As dis-

cussed above, the full range of environmental effects of a

particular agency action cannot be determined without at least

engaging in the preliminary NEPA process of conducting an

environmental assessment.

I find that all federal agencies are required to comply

with NEPA when considering major federal actions that

significantly affect the quality of the human environment,

unless there is a clear and unavoidable statutory conflict.

There is no such statutory conflict here. The threshold

question of whether there is an effect on the human environ-

ment is a question that is to be answered through the envi-

ronmental assessment and impact analysis of NEPA, a

process which was not followed in the designation of critical

habitat in this case.

Defendant argues that the Court should decline to grant

the injunction plaintiffs seek even if it should find FWS to be

in violation of required statutory procedures because such an

"injunction is not warranted on a balancing of equitable fac-

tors at issue in the case and would call for FWS to violate a

S7a

federal District Court order and competing statutory man-

date” Memorandum in Support (#62), p. 46.’

Although the Secretary is under a court-imposed mandate

to designate critical habitat, this mandate stops short of

authorizing the Secretary to ignore the relevant provisions of

NEPA or ESA. The court ordered FWS to ". . . publish its

proposed critical habitat plan no later than forty-five (45)

days thereafter. The final rules shall be published at the

earliest possible time permitted under the appropriate

regulations." Northern Spotted Owl et al. v. Manuel Lujan,

supra at 629-630. Therefore, although the court ordered that

the final rule relative to critical habitat be published, it did

not imply an exemption from NEPA or ESA requirements.

Granting the relief plaintiff seeks in this case would not

result in the violation of a federal district court order.

In balancing the equities, I find that the severe hardship

to Douglas County and other areas affected by the Secre-

tary’s designation and the public interest in requiring

compliance with environmental laws tips the scales decidedly

in plaintiff's favor. The social and economic impacts as well

as the biological uncertainty to other species justifies an

injunction until the defendant complies with the provisions of

NEPA.

Plaintiff and Intervenor plaintiffs’ motions for summary

judgment (# 15, # 36, # 41) are allowed. Defendant’s

motion for summary judgment (# 60) is denied. Plaintiff and

Intervenor plaintiffs are allowed 20 days to apply to the court

for appropriate relief, with a proposed form of order. That

” The final rule designating critical habitat has already been adopted.

Therefore, plaintiffs request for injunctive relief is moot. Accordingly

plaintiff's claim is construed as seeking declaratory relief and setting

aside the designation of critical habitat. The same balancing of equities

applies to either way the requested relief is viewed.

58a

filing should be calendared by the clerk so defendant can

submit a response to the proposed order.

59a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 93-36013 and 93-36016

DOUGLAS COUNTY, A POLITICAL SUBDIVISION OF

THE STATE OF OREGON, PLAINTIFF-APPELLEE

VS.

BRUCE BABBITT, SECRETARY OF THE INTERIOR, UNITED

STATES DEPARTMENT OF THE INT ERIOR, DEFENDANT-

APPELLANT

DOUGLAS COUNTY, A POLITICAL SUBDIVISION OF

THE STATE OF OREGON, PLAINTIFF-APPELLEE

VS.

BRUCE BABBITT, DEFENDANT

and

HEADWATERS, INC.; UMPQUA VALLEY

AUDUBON SOCIETY,

DEFENDANTS-INTERVENORS-APPELLANTS

[Filed June 5, 1995]

60a

ORDER

Before: PREGERSON and TROTT, Circuit Judges, and

FITZGERALD, Senior District Judge’

The panel as constituted in the above case has voted to

deny the petition for rehearing. Judges Pregerson and Trott

voted to reject the suggestion for rehearing en banc and

Judge Fitzgerald would so recommend.

The full court has been advised of the suggestion for

rehearing en banc and no active judge of the court has

requested a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the suggestion

for rehearing en banc is rejected.

* The Honorable James M. Fitzgerald, Senior United States District

Judge for the District of Alaska, sitting by designation.

6la

APPENDIX D

1. 16 U.S.C. 1532(5) provides as follows:

§ 1532. Definitions

For the purposes of this chapter —

(5)(A) The term "critical habitat" for a threatened or

endangered species means —

(i) the specific areas within the geographical area

occupied by the species, at the time it is listed in accor-

dance with the provisions of section 1533 of this title, on

which are found those physical or biological features (I)

essential to the conservation of the species and (II) which

may require special management considerations or

protection; and

(ii) specific areas outside the geographical area

occupied by the species at the time it is listed in accor-

dance with the provisions of section 1533 of this title,

upon a determination by the Secretary that such areas are

essential for the conservation of the species.

(B) Critical habitat may be established for those species

now listed as threatened or endangered species for which no

critical habitat has heretofore been established as set forth in

subparagraph (A) of this paragraph.

Secretary, critical habitat shall not include the entire geo-

graphical area which can be occupied by the threatened or

endangered species.

62a

2. 16 U.S.C. 1533(a)(3), (b)(2), (b)(S), (b)(6)(A) and

(b)(6)(C) provide as follows:

§ 1533. Determination of endangered species and

threatened species

(a) Generally

(3) The Secretary, by regulation promulgated in accor-

dance with subsection (b) of this section and to the maximum

extent prudent and determinable —

(A) shall, concurrently with making a determination

under paragraph (1) that a species is an endangered

species or a threatened species, designate any habitat of

such species which is then considered to be critical

habitat; and

(B) may, from time-to-time thereafter as appropriate,

revise such designation.

(b) Basis for determinations

(2) The Secretary shall designate critical habitat, and

make revisions thereto, under subsection (a)(3) of this section

on the basis of the best scientific data available and after

taking into consideration the economic impact, and any other

relevant impact, or specifying any particular area as critical

habitat. The Secretary may exclude any area trom critical

habitat if he determines that the benefits of such exclusion

outweigh the benefits of specifying such area as part of the

critical habitat, unless he determines, based on the best

scientific and commercial data available, that the failure to

designate such area as critical habitat will result in the

extinction of the species concerned.

(5) With respect to any regulation proposed by the

Secretary to implement a determination, designation, or

63a

revision referred to in subsection (a)(1) or (3) of this section,

the Secretary shall —

(A) not less than 90 days before the effective date of

the regulation —

(i) publish a general notice and the complete text

of the proposed regulation in the Federal Register,

and

| (ii) give actual notice of the proposed regulation

(including the complete text of the regulation) to the

State agency in each State in which the species is

believed to occur, and to each county or equivalent

jurisdiction in which the species is believed to occur,

and invite the comment of such agency, and each

such jurisdiction, thereon;

(B) insofar as practical, and in cooperation with the

Secretary of State, give notice of the proposed regulation

to each foreign nation in which the species is believed to

occur or whose citizens harvest the species on the high

seas, and invite the comment of such nation thereon;

professional scientific organizations as he deems appro-

priate;

(D) publish a summary of the proposed regulation in

a newspaper of general circulation in each area of the

United States in which the species is believed to occur;

and

(E) promptly hold one public hearing on the proposed

regulation if any person files a request for such a hearing

within 45 days after the date of publication of general

notice.

(6)(A) Within the one-year period beginning on the date

on which general notice is published in accordance with

paragraph (5)(A)(i) regarding a proposed regulation, the

Secretary shall publish in the Federal Register—

64a

(i) if a determination as to whether a species is an

endangered species or a threatened species, or a revision

of critical habitat, is involved, either—

(I) a final regulation to implement such determi-

nation,

(II) a final regulation to implement such revision

or a finding that such revision should not be made,

(III) notice that such one-year period is being

extended under subparagraph (B)(i), or

(IV) notice that the proposed regulation is being

withdrawn under subparagraph (B)(ii), together with

the finding on which such withdrawal is based; or

(ii) subject to subparagraph (C), if a designation of

critical habitat is involved, either —

(I) a final regulation to implement such designa-

tion, or

(II) notice that such one-year period is being

extended under such subparagraph.

endangered species or a threatened species shall be published

concurrently with the final regulation implementing the

determination that such species is endangered or threatened,

unless the Secretary deems that —

(i) it is essential to the conservation of such species

that the regulation implementing such determination be

promptly published; or

(ii) critical habitat of such species is not then determi-

nable, in which case the Secretary, with respect to the

proposed regulation to designate such habitat, may extend

the one-year period specified in subparagraph (A) by not

more than one additional year, but not later than the close

of such additional year the Secretary must publish a final

regulation, based on such data as may be available at that

;

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time, designating, to the maximum extent prudent, such

habitat.

3. 16 U.S.C. 1536(a)(2) provides as follows:

§ 1536. Interagency cooperation

(a) Federal agency actions and consultations

(2) Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency (hereinaf-

ter in this section referred to as an "agency action") is not

likely to jeopardize the continued existence of any endan-

gered species or threatened specics or result in the destruc-

tion or adverse modification of habitat of such species which

is determined by the Secretary, after consultation as appro-

priate with affected States, to be critical, unless such agency

has been granted an exemption for such action by the Com-

mittee pursuant to subsection (h) of this section. In fulfilling

the requirements of this paragraph each agency shall use the

best scientific and commercial data available.

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APPENDIX E

42 U.S.C. 4332(2)(C) provides as follows:

§ 4332. Cooperation of agencies; reports; availability of

information; recommendations; international

and national coordination of efforts

The Congress authorizes and directs that, to the fullest

extent possible: . . . (2) all agencies of the Federal Govern-

ment shall —

proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment,

a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhancement

of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the comments

of any Federal agency which has jurisdiction by law or

special expertise with respect to any environmental impact

involved. Copies of such statement and the comments and

views of the appropriate Federal, State, and local agencies,

which are authorized to develop and enforce environmental

standards, shall be made available to the President, the

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Council on Environmental Quality and to the public as

provided by section 552 of Title 5, and shall accompany the

| proposal through the existing agency review processes;

ioe iT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.