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Seattle Audubon Soc. v. Evans

United States Court of Appeals for the Ninth Circuit

August 28, 1991, Argued and Submitted, Seattle, Washington ; December 23, 1991, Filed

No. 91-35528, No. 91-35529, No. 91-35563, No. 91-35782, Nos. 91-35802, 91-35992

Opinion

 [*298]  OPINION

SCHROEDER, Circuit Judge:

These appeals all arise out of litigation [**2]  instituted by the Portland Audubon Society (PAS) and the Seattle Audubon Society (SAS) challenging logging in old-growth national forests as violative of several federal statutes.

In appeal nos. 91-35529 and 91-35563, the defendant United States Forest Service and intervenor-defendant Washington Contract Loggers Association (WCLA), appeal from an injunction entered by the district court in Seattle requiring the Forest Service to put into effect revised standards and guidelines to ensure the viability of the northern spotted owl and enjoining, in the meantime, timber sales in spotted owl habitat in national forests in Washington, Oregon and Northern California. The district court held such planning was required under the National Forest Management Act and regulations promulgated pursuant to it that require Forest Service planning to ensure the viability of vertebrate and non-vertebrate species. See 16 U.S.C. §§ 1600-1687 (1985) ("NFMA"); 36 C.F.R. § 219.19.

In its appeal, the Forest Service's principal contention is that it is no longer required under the NFMA to plan for the future survival of the spotted owl because the Fish and Wildlife Service has declared the owl threatened [**3]  under the Endangered Species Act, 16 U.S.C. §§ 1531-1543 (1985) ("ESA"). The Forest Service contends that it is required to plan for "viable" species, and that a species declared threatened or endangered under the ESA is no longer viable.

The district court held that the listing under the Endangered Species Act triggered new obligations under that Act but did not reduce the planning obligations of the Forest Service under the NFMA. We agree with the district court that the government's position in this case is inconsistent with the language of the key regulation, the purpose of the applicable statutes and with the position the Forest Service itself has taken in other contexts.

WCLA's appeal in principal part challenges some of the district court's findings which the government does not dispute. We hold they are not clearly erroneous.

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952 F.2d 297 *; 1991 U.S. App. LEXIS 29610 **; 91 Cal. Daily Op. Service 9977; 91 Daily Journal DAR 15820; 22 ELR 20372

Seattle Audubon Society, et al., Plaintiffs-Appellants, v. John L. Evans, in his official capacity as Chief, U.S. Forest Service, et al., Defendants-Appellees. Seattle Audubon Society, et al., Plaintiffs-Appellees, v. United States Forest Service, Defendant-Appellant, and Washington Contract Loggers Association, Defendants-Intervenors Appellees. Seattle Audubon Society, Plaintiff-Appellee, v. John L. Evans, in his official capacity as Chief, U.S. Forest Service, Defendant, and Washington Contract Loggers Association, et al., Defendants-Intervenors- Appellants. Portland Audubon Society, Plaintiff-Appellant, v. Manuel Lujan, Jr., in his official capacity as Secretary of Interior, Defendant-Appellee, and Northwest Forest Resource Council, et al., Defendants-Intervenors- Appellees. Oregon (Portland) Portland Audubon Society, Plaintiff-Appellant, v. Manuel Lujan, Jr., in his official capacity as Secretary of Interior, Defendant-Appellee, and Northwest Forest Resource Council, et al., Defendants-Intervenors- Appellees.

Prior History:  [**1]  D.C. No. CV-89-160-WD Western Washington (Seattle). Appeals from the United States District Court for the Western District of Washington. William L. Dwyer, District Judge, Presiding. D.C. No. CV-87-1160-HJF Oregon (Portland) Appeals from the United States District Court for the District of Oregon. Helen J. Frye, District Judge, Presiding.

CORE TERMS

Forest, endangered species, regulation, district court, habitat, species, Migratory, plans, owl, Appropriations, fiscal year, spotted owl, viability, Wildlife, viable, national forest, guidelines, reenacted, Agencies, northern, kill, timber sale, promulgated, injunction, regional, appeals, environmental, modification, destruction, challenges

Environmental Law, Natural Resources & Public Lands, Fish & Wildlife Protection, Governments, Public Lands, Forest Lands, Endangered Species Act, Critical Habitats, Federal Agencies, Forest Management, Federal Government, General Overview, Criminal Law & Procedure, Miscellaneous Offenses, Cruelty to Animals, Elements, International Trade Law, Trade Agreements, Environmental Provisions, Endangered Species, Takings, Civil Procedure, Pleadings, Amendment of Pleadings, Leave of Court, Penalties, US Congress