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Seattle Audubon Society v. Espy

filed: July 8, 1993.

SEATTLE AUDUBON SOCIETY; PILCHUCK AUDUBON SOCIETY; WASHINGTON ENVIRONMENTAL COUNCIL; WASHINGTON NATIVE PLANTS SOCIETY, ET AL., PLAINTIFFS-APPELLEES,
v.
MIKE ESPY,*FN* IN HIS OFFICIAL CAPACITY AS SECRETARY OF AGRICULTURE; UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES, DEFENDANTS-APPELLANTS, AND WASHINGTON CONTRACT LOGGERS ASS'N, ET AL., DEFENDANTS-INTERVENORS-APPELLANTS. SEATTLE AUDBON SOCIETY, PLAINTIFF-APPELLANT, V. MIKE ESPY,*FN* IN HIS OFFICIAL CAPACITY AS SECRETARY OF AGRICULTURE; UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES, DEFENDANTS-APPELLEES, AND WASHINGTON CONTRACT LOGGERS ASS'N, ET AL., DEFENDANTS-INTERVENORS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-92-479-WLD. William L. Dwyer, District Judge, Presiding.

Before: Alfred T. Goodwin, Mary M. Schroeder, and Harry Pregerson, Circuit Judges. Opinion by Judge Schroeder.

Author: Schroeder

SCHROEDER, Circuit Judge:

The United States Forest Service and Washington Contract Loggers Association, et al. (WCLA) each appeal the district court's grant of summary judgment and permanent injunctive relief in favor of Seattle Audubon Society (SAS). SAS challenged the Forest Service's Final Environmental Impact Statement and Record of Decision adopting the Interagency Scientific Committee's Report as the Forest Service's spotted owl management plan. The district court held that adoption of the Interagency Scientific Committee (ISC) Report without consideration of alternatives, and without consideration of intervening information on the status of the owl violated the National Forest Service Management Act, 16 U.S.C. § 1604 (NFMA) and the National Environmental Policy Act, 42 U.S.C. §§ 4321-70c (NEPA). In so holding, the district court rejected the defendants' contentions that plaintiffs lacked standing and that the dispute was not ripe. We affirm.

In appeal no. 92-36560, SAS cross-appeals the portion of the district court's March 28, 1992 judgment holding that the Forest Service was not obligated to promulgate independent regulations ensuring that critical owl habitat will not be destroyed or adversely modified. We grant WCLA's motion to dismiss the cross-appeal for lack of jurisdiction because there was no final, appealable order.

BACKGROUND

In Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991) (Evans), we affirmed the district court's judgment that the Forest Service had violated the NFMA by failing to prepare a plan for managing suitable spotted owl habitat in the national forests of Washington, Oregon and northern California. We also affirmed the district court's order permanently enjoining timber sales in owl habitat pending the Forest Service's preparation of an owl management plan in accordance with the requirements of both NFMA and NEPA.

As a result of our opinion in Evans, the Forest Service published a final environmental impact statement (EIS) for its management plan for spotted owl habitat on January 31, 1992. By its March 3, 1992 record of decision (ROD), the Service adopted regional guide amendments incorporating the recommendations of the ISC as its owl management plan. The so-called ISC Strategy has two major components. First, the plan delineates "habitat conservation areas" (HCAs) where logging would be prohibited. Second, the plan regulates the rate of cutting on forest lands between HCAs so that half of this land would provide for the safe dispersal of owls at all times through the use of the "50/11/40" rule. See generally Seattle Audubon Soc'y v. Evans, 771 F. Supp. 1081, 1092-93 (W.D. Wash. 1991), aff'd., 952 F.2d at 297.

SAS then filed this action in district court challenging the ROD and the EIS as violative of NEPA and the NFMA. The district court granted SAS's cross-motion for summary judgment on SAS's NEPA claims, granted partial summary judgment in favor of the Forest Service on one of SAS's NFMA claims and struck the remainder of SAS's NFMA claims without prejudice to renewal upon the Service's completion of a supplemental EIS. Subsequently, the district court granted a permanent injunction prohibiting the Forest Service from auctioning or awarding any additional timber sales until the Forest Service adopts and implements revised standards and guidelines for the management of spotted owl habitat which comply with both NEPA and NFMA. The district court ordered these guidelines to be in effect by August 20, 1993. Both the Forest Service and WCLA timely appeal. SAS timely cross-appeals.

STANDING AND RIPENESS

The Forest Service contends that SAS lacks standing to challenge its decision to adopt regional guide amendments incorporating the ISC Strategy because no SAS member has demonstrated actual or imminent injury as required under Lujan v. Defenders of Wildlife, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 2138 & n.2 (1992) (" Defenders ").

The Supreme Court in Defenders said that to establish standing, a 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 imminent, not 'conjectural' or hypothetical." Id. at 2136 (citations omitted). There must also be a "causal connection between the injury and the conduct complained of - the injury has to be fairly . . . traceable to the challenged action of defendant, and not . . . the result [of] the independent action of some third party not before the court." Id. (citations and internal quotations omitted). Finally, it must be "likely" as opposed to "speculative" that the injury can be redressed by a favorable decision. Id. The Court relied on its prior standing cases going back to Massachusetts v. Mellon, 262 U.S. 447, 67 L. Ed. 1078, 43 S. Ct. 597 (1923) to hold that members of environmental groups in the United States lacked standing to challenge a rule affecting funding decisions overseas.

In support of its position that SAS lacked standing to bring this action, the Forest Service relies on Defenders and Lujan v. National Wildlife Fed'n, 497 U.S. 871, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (" National Wildlife "). It asks us to conclude that these cases materially alter the standing principles which previously applied and that these Supreme Court decisions require dismissal of plaintiffs' challenges in this case. The Forest Service's position is not well founded.

The plaintiffs in Defenders brought an action challenging a rule promulgated by the Secretary of the Interior interpreting Section 7 of the Endangered Species Act (ESA) as applicable only to actions to be carried out within the United States or on the high seas. The plaintiffs claimed they would be injured by the Secretary's failure to engage in ESA Section 7 consultation with respect to certain Agency for International Development (AID) funded activities abroad which plaintiffs felt would lead to "increases [in] the rate of extinction of endangered and threatened species." 112 S. Ct. at 2137. In support of this claim, plaintiffs included affidavits stating that each had been to Sri Lanka and Egypt several years earlier and "intended" to go there again "in the future." Id. at 2138. However, plaintiffs were unable to state precisely when (or even if) they would again visit the sites in Sri Lanka and Egypt where various building projects ...


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