Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

MEMORANDUM^* 

Siuslaw Task Force and other environmental groups ("STF") appeal from orders (1) modifying a 1984 injunction to allow certain timber sales from Siuslaw National Forest's Mapleton Ranger District during fiscal year 1990, and (2) denying reconsideration of the modification order.

We affirm the orders substantially for the reasons stated by the district court. The district court held that Section 318(a) (1) of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Public Law No. 101-121, 103 Stat. 745, mandated lifting the injunction for fiscal year 1990. While the statute is not a model of clarity, Congress apparently intended, at least during fiscal year 1990, to lift the 1984 injunction in its blanket form and permit sales to be challenged only when a particular sale could be shown to be inconsistent with a draft management plan drawn up in 1986.

The district court has modified the injunction three times. First, following Congress' express mandate in the Supplemental Appropriations Act, Fiscal Year 1985, Public Law No. 99-88, 99 Stat. 293, the district court modified the injunction to permit District timber sales of up to 90 million board feet in fiscal year 1989. This modification was expressly prescribed by Section 321 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1989, Public Law No. 100-446, 102 Stat. 1774.

The third modification, at issue in this appeal, followed the October 23, 1989, enactment of Section 318. Section 318 provided a temporary solution to the perceived conflict between the need to preserve the remaining old-growth forests of the Pacific Northwest and the need to offer a stable timber supply to the timber mills of the region. See 135 Cong.Rec. S8795 (July 26, 1989) (remarks of Sen. Mark Hatfield, one of the Act's cosponsors). Section 318 of the Act provides in relevant part:

The Forest Service shall offer, notwithstanding the provisions of the Federal Timber Contract Payment Modification Act of 1984 (16 U.S.C. 618(a) (5) (C)), an aggregate timber sale level of seven billion seven hundred million board feet of net merchantable timber from the national forests of Oregon and Washington for fiscal years 1989 and 1990. Such timber sales shall be consistent with existing land and resource management plans or land and resource management plans as approved, except in the case of the Mapleton Ranger District of the Siuslaw National Forest, Oregon, such sales shall be consistent with the preferred alternative of the draft land and resource management plan and accompanying draft environmental impact statement dated October 1, 1986 pending approval of a final land and resource management plan for the Siuslaw National Forest....

On November 3, 1989, the USFS moved to modify the 1984 amended judgment on the basis that Section 318 exempted the agency from the court's amended judgment and injunction to the extent that it permitted timber sales in fiscal year 1990. On March 5, 1990, the district court granted the motion and modified the 1984 amended judgment and injunction. The court ruled that the injunction, as modified, does not apply to fiscal year 1990 District timber sales

that are consistent with the preferred alternative of the Siuslaw National Forest's draft land and resource management plan and accompanying draft environmental impact statement dated October 1, 1986, or when approved by the regional Forester, the Siuslaw's National Forest's final land and resource management plan and accompanying final environmental impact statement.

Defendants apparently relied on Section 318(b) (6) (a) of the Act in arguing before the district court that Section 318 precludes reliance on NEPA as a legal basis for the amended judgment. The district court expressly rejected the argument that Section 318(b) (6) (a) nullifies NEPA violations or repeals NEPA in any way.

In modifying the amended judgment to release sales scheduled for 1990, the district court explained that:

The reference to the Mapleton District in Sec. 318(a) (1)'s directive that seven billion seven hundred million board feet be sold in Oregon and Washington national forests in Fiscal Year 1990 clearly shows that Congress intended that a portion of the aggregate timber sales take place in the Mapleton district. I find that the only plausible explanation for the inclusion of Sec. 318(a) (1)'s provision relating to the Mapleton Ranger District of the Siuslaw National Forest is that Congress recognized that no final environmental statement exists for the Mapleton District. By establishing an alternative standard for assessing proposed timber sales in the Mapleton District, Congress thereby directed that these timber sales proceed notwithstanding the District's failure to complete a final environmental statement and consequently notwithstanding the injunction in this case which was based solely on the District's failure to complete a final environmental statement.

Because the Mapleton District FEIS had not been completed while Congress was considering Section 318, Congress apparently chose to suspend the FEIS requirement for fiscal year 1990 so that sales consistent with an interlocutory draft could be made. The statute thus expressed the will of Congress that sales consistent with the "preferred alternative" could be made, but such sales would be subject to timely administrative and judicial review to assure conformity.

Under the circumstances confronting the district court, we believe the court correctly followed the legislative intent with respect to the Mapleton District.

Because time is of the essence, as fiscal year 1990 is running its course, the mandate affirming the district court order will issue now. The stay previously entered is vacated.

AFFIRMED.