Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

MEMORANDUM^* 

The United States Forest Service ("USFS") appeals the permanent injunction of the Cowboy timber sale in the Umpqua National Forest on the ground that the injunction was issued in violation of Section 318 of the Department of Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Public Law No. 101-121, 103 Stat. 745. We affirm.

Congress enacted Section 318 of the Act as a "holding pattern 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. 8795 (July 26, 1989) (remarks of Sen. Mark Hatfield, one of the Act's co-sponsors).

Section 318(a) (1) directs USFS to offer, during fiscal years 1989 and 1990, 5.8 billion board feet of timber from the 13 "spotted owl" national forests in Oregon and Washington. However, section 318(b) (2) imposes restrictions on sales from these spotted owl national forests. Under Section 318(b) (2) sales may not fragment ESOG forest stands unless fragmentation is necessary to meet the timber sales levels of Subsection (a) (1). In addition, if USFS determines that fragmentation is necessary, fragmentation must be minimized on a national forest-by-national forest level. Finally, Section 318(g) (1) governs legal challenges to fiscal year 1990 timber sales. While it prohibits the issuance of a preliminary injunction in connection with a fiscal year 1990 timber sale, it further provides

that the courts shall have authority to enjoin permanently, order modification of, or void an individual sale if it has been determined by a trial on the merits that the decision to prepare, advertise, offer, award, or operate such sale was arbitrary, capricious or otherwise not in accordance with law ...

The proposed Cowboy timber sale is located in the Tiller Ranger district of the Umpqua National Forest. It would permit clearcutting of a total of 219 acres of old-growth forests that are suitable habitat for the northern spotted own. Eight of the ten cutting units within the proposed sale consists of timber stands which have been identified as ecologically significant old-grown ("ESOG") forest. The sale was planned before the Act's enactment on October 29, 1989.

On March 29, 1990, Seattle Audubon Society ("SAS") and other plaintiffs challenged the decision to offer the Cowboy timber sale. SAS moved for summary judgment against USFS's decision to offer the sale during fiscal year 1990 "unless and until the Forest Service complies with the requirements of Section 318(b) (2)." USFS moved for summary judgment on the ground that the sale was lawful. The WCLA supported USFS but also contended that summary judgment could not be entered under the Act and that a trial had to be held. On May 11, 1990, the district court held that the Act permitted the resolution of timber sale challenges by summary judgment, granted summary judgment for SAS, and enjoined the Cowboy timber sale.

The injunction prohibits USFS from proceeding with the Cowboy sale until:

1. The agency shows that it has determined that a non-ESOG fragmenting sale from elsewhere in the Umpqua National Forest, outside the Tiller District, cannot be substituted feasibly and consistently with existing management plans, and provides an adequate explanation of its determination; and

2. The agency provides an adequate description of how and on what basis it arrived at the fiscal year 1989-90 quotas for the individual national forest, that are subject to the requirements of Section 318.

The district court found that USFS assigned a fiscal year 1990 sale quota to each ranger district in national forests in Oregon. The Cowboy sale was authorized to help meet the Tiller District's quota. The district court observed that " [n]othing in the record provides an adequate explanation of how and why the Forest Service found the sale to be necessary to meet the sales quota for the Oregon forests or the quota for the Umpqua."

The district court found that the use of quotas "raises the possibility that the agency has failed to follow the requirements of Section 318(b) (2) that fragmentation be minimized...." USFS focuses on the use of the word "possibility" to argue that no final decision on the merits has been made. Here, however, USFS had failed to determine whether fragmentation in the Tiller district was necessary in the first place. Therefore, the district court did not have to, indeed could not, rule on whether fragmentation of ESOG stands was minimized. As the court noted, adherence to a quota appeared to replace the discretion Section 318(b) (2) required USFS to use to determine whether the Cowboy sale and the fragmentation it would cause were necessary. The court found that USFS never "determined whether a non-fragmenting sale from somewhere else in the Umpqua, outside the Tiller District, could be substituted feasibly and consistently with existing management plans ..." The court's decision on the merits was that "the requirements of Section 318 have not been met."

Contrary to USFS' assertion, the district court is not requiring USFS to undertake procedures in excess of statutory or regulatory requirements. The district court, in requiring a showing of necessity before lifting the injunction, is only requiring the statutory minimum. Cf. Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 549 (1978). Section 318(b) (2)'s requirement that fragmentation be minimized is a substantive limit on USFS timber sale decisions, not a set of procedures grafted on by the district court. In Vermont Yankee, the Court approved the Atomic Safety and Licensing Board's decision to grant a license to operate a nuclear power plant, noting that there was

little doubt that [the] Board's actions were well within the proper bounds of its statutory authority. Not only did the record before the agency give every indication that the project was actually needed but also there was nothing before the Board to indicate to the contrary.

Id. at 553. Here, in contrast, the record before the agency, as well as the district court, gave no indication that the Cowboy sale was necessary to meet the sales level mandated by Section 318(a) (1). The stay previously entered is vacated.

AFFIRMED.