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Swanson v. United States Forest Service

filed: June 24, 1996.

JOHN SWANSON; IDAHO SPORTSMEN'S COALITION; ALLIANCE FOR THE WILD ROCKIES; THE ECOLOGY CENTER; FOUNDATION FOR NORTH AMERICAN WILD SHEEP; FOREST CONSERVATION COUNCIL, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES; INTERMOUNTAIN FOREST INDUSTRY ASSOCIATION; SHEARER LUMBER PRODUCTS, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Idaho. D.C. No. CV 93-00350-AAM. Alan A. McDonald, District Judge, Presiding.

Before: Dorothy W. Nelson and John T. Noonan, Jr., Circuit Judges, and Jack E. Tanner, District Judge.*fn* Opinion by Judge D.w. Nelson.

Author: Nelson

D.W. NELSON, Circuit Judge:

Appellants John Swanson and Idaho Sportsmen's Coalition ("ISC") challenge the decision of the Appellee United States Forest Service to authorize timber sales and road construction within the Cove and Mallard drainages of the Nez Perce National Forest. ISC maintains that in authorizing the sales, the Forest Service failed to comply with the Endangered Species Act ("ESA"),*fn1 the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Clean Water Act. The district court granted summary judgment on all but the Clean Water Act claims, and dismissed those claims for failure to give notice to the Environmental Protection Agency ("EPA"). We affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

The Nez Perce National Forest is a 2.2 million acre national forest in Idaho County, Idaho. Within the forest are two adjacent areas known as the Cove and Mallard drainages; it was within these drainages that the Forest Service authorized the timber sales and the road construction being challenged in this matter.

Before authorizing the sales, however, the Forest Service attempted to gauge the impact that the proposed timber harvests and road construction would have upon the forest environment. As part of its analysis, the Service prepared biological assessments ("BAs") which considered the impact of the proposed activities on threatened, endangered, and sensitive species in the area; among those species studied were the Snake River chinook salmon, which were then listed as a sensitive species.

The results of the Service's environmental analysis demonstrated that the proposed actions would have no effect on the recovery or viability of any threatened, endangered, or sensitive plant or animal species, including the chinook salmon. The Forest Service summarized its findings in Environmental Impact Statements ("EISs"), and issued Records of Decisions ("RODs") for those EISs on November 30, 1990. On September 19, 1991, the Forest Service awarded the Grouse timber sale to Intervenor/Appellee Shearer Lumber Products, and on September 27, 1991, the Service awarded the Noble sale to Shearer.

Prior to the award of these sales, however, the National Marine Fisheries Service ("NMFS") published a proposal to list the Snake River chinook salmon as a threatened species. Subsequently, about 7 months after the sales were awarded, the NMFS determined that the salmon were in fact a threatened species and that they would be so listed effective May 22, 1992. When the salmon's listing as threatened became effective, the Nez Perce forest supervisor directed forest rangers to determine whether current and proposed projects throughout the forest would affect fish habitat. Activities that were determined to have a possible adverse effect upon the listed salmon were discontinued.

In July 1992, the Forest Service completed new BAs for the Noble, Jack, and Grouse timber sales which analyzed the effects of the timber harvest on chinook salmon. The BAs considered the effects of possible sediment delivery into streams, the distance between the proposed activities and salmon habitat, and measures by which any potential harms might be mitigated. In September 1992, the Forest Service offered the Jack timber sale for bids; although Shearer was again the highest bidder, the Forest Service delayed awarding the sale in order to complete its consultation with the NMFS concerning the impact of the sale on the salmon.

In January 1993, the NMFS asked that all national forests affected by the listing of the salmon provide new information and reformat their BAs. The Forest Service complied; its findings that the activities were unlikely to affect the salmon, however, remained unchanged. In August 1994, the NMFS issued a biological opinion for the proposed projects which stated that the actions at issue "are not likely to jeopardize the continued existence of Snake River spring/summer chinook." On February 1, 1995, the Jack sale was awarded to Shearer. The Grouse sale was, at the time the briefs were filed, complete, and the Noble sale was near completion.

ISC filed its complaint in district court on September 14, 1993, alleging that the Forest Service violated NEPA, ESA, NFMA, and the Clean Water Act when it issued its RODs for the timber sales. ISC cited numerous deficiencies in the Forest Service's analysis of the environmental impact of the timber sales; specifically, it claimed that the Forest Service failed to monitor animal habitat and populations, that the information provided in the BAs was inaccurate, that the Service did not adopt a monitoring plan for animal habitat, that it failed to analyze the effects of the sales on biological diversity and recreational activities in the area, and finally, that it violated the Clean Water Act by failing to comply with state water quality standards. The government moved to dismiss the Clean Water Act claim, however, maintaining that ISC had failed to comply with the Act's requirement that a party bringing claims under the Act provide the EPA notice of its intent to sue. 33 U.S.C. § 1365(b)(1),(2). ISC contended, however, that it was suing for violations of state water quality standards from nonpoint pollution sources;*fn2 it maintained that since that claim only could be brought pursuant to the Administrative Procedure Act, it was not required to comply with the Clean Water Act's 60-day notice provision. See Oregon Natural Resources Council v. United States Forest Service, 834 F.2d 842, 849-52 (9th Cir. 1987). The claim at issue, however, was entitled "Violation of the Clean Water Act," and nowhere did it mention the Administrative Procedure Act. The court dismissed the claim.

The court also granted ISC a preliminary injunction on the basis of their ESA and NEPA claims, ordering the Forest Service to refrain from "engaging in or authorizing any road building or road reconstruction, and from the sale or harvesting of any timber in the Cove/Mallard areas until final resolution of this action." The court then ordered that dispositive motions on the issue be filed no later than March 25, 1994.

On March 29 1994, four days after dispositive motions were due, ISC moved to amend its complaint in order to change its Clean Water Act claim to an Administrative Procedure Act claim. ISC maintained that its earlier failure to state that it was suing under the Administrative Procedure Act "was, at most, a technical flaw." The court denied the motion to amend, ...


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