GOODWIN, Chief Judge:
On remand from this court's decision in Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.1989), the district court took testimony, examined exhibits, reviewed the applicable law, and concluded that section 314 of Pub.L. No. 100-446, 102 Stat. 1774, 1825 (1988), barred plaintiffs' National Environmental Protection Agency (NEPA) claim. The district court also concluded that plaintiffs' other claims were untimely. Plaintiffs were seeking to enjoin the removal of timber from certain government-owned lands pursuant to current Timber Management Plans (TMPs) and their respective annual allowable harvest targets. After staying further logging pending this expedited appeal, we have reviewed the record, the briefs and arguments, and we affirm the district court's denial of relief on the NEPA claim. We remand plaintiffs' other claims for further proceedings.
The Timber Management Plans
From 1979 to 1983, the Bureau of Land Management (BLM) adopted ten-year plans for each of its districts in western Oregon. These Timber Management Plans (TMPs) were received in evidence as exhibits. Each was the result of a lengthy process that included the preparation of an Environmental Impact Statement (EIS) as required by the NEPA, 42 U.S.C. § 4332. Each EIS considered the environmental impacts of possible timber management alternatives, including "maximum timber production," "no change [from present management]," "no herbicide," "emphasis on protection of natural values," "habitat diversity," as well as management alternatives which would compromise among these concerns.
Among the numerous environmental impacts studied under each alternative was the depletion of northern spotted owl habitat and the resulting predicted decline in the number of owls on BLM lands.
Each TMP adopts one of the alternatives proposed in the EIS, though perhaps with slight modifications. The TMPs designate commercial forest land under BLM management in the district for one of several uses. For example, the Roseburg District TMP, adopted September 30, 1983, sets aside 82 percent of the commercial forest land area for "intensive timber management." Another 9 percent is to be managed for "modified area control," which allows some timber harvest while protecting some old-growth timber and visual corridors.
Although the TMPs do not designate specific timber sale boundaries, or require that BLM sell any particular acre of timber, they effectively decide the land use allocation of the forest and set the "annual allowable harvest" for each district. BLM timber sales are carried out in accordance with the plans. Each timber sale requires an Environmental Assessment which is "tiered" to the EIS for the TMP. In other words, when BLM sells an individual timber sale, it does not revisit the difficult trade-offs and decisions that were made in the TMP, deciding what land is to be designated for "intensive timber management." The Environmental Assessment considers site-specific concerns about how the sale is to be undertaken in accordance with BLM management practices: where roads are to be built, how the site is to be prepared, how to mitigate the environmental impact of the sale by reducing erosion, muddying of nearby waters, or an overly visible, unsightly cut.
In 1986, BLM decided to replace all of the current western Oregon TMPs with new, coordinated plans by the end of the decade. The EISs for the next generation of plans are currently being prepared and, if all goes according to schedule, should be completed in 1990. See Portland Audubon Society v. Lujan, 712 F.Supp. 1456, 1460-61 (D.Or.1989).
The Northern Spotted Owl
The northern spotted owl is heavily dependent on old-growth timber for its habitat. The owl is considered an "indicator species" for old-growth forest, meaning that the presence and number of northern spotted owls give an accurate indication of the health of the old-growth forest and the presence of other old-growth dependent species. As go the owls, naturalists say, so go the other species.
Almost no old-growth forest remains on private lands in western Oregon. Most of the remaining old-growth timber is on federal land managed by the Forest Service and BLM. BLM lands account for approximately one-fifth of the remaining old-growth timber.
During preparation of the 1979-1983 EISs and TMPs, the preparers recognized that the TMPs called for accelerated harvesting of much remaining old-growth timber, and that the number of nesting pairs of spotted owls would decline as this harvesting took place. The EISs and TMPs reflect this concern, and attempt to make provisions for the preservation of a specified number of owl pairs.
In the mid-1980s, several studies expressed concern for the long-term viability of the northern spotted owl species. Dr. Russell Lande of the University of Chicago completed a much-debated study on the likely extinction of the owl. The National Audubon Society commissioned an independent report which concluded that extinction is a possibility because of the owl's dependence on old-growth forest and its low rates of reproduction even in undisturbed forest.
At the request of environmental groups, including plaintiffs in this litigation, BLM prepared an Environmental Assessment in order to determine whether, in light of new information about the owl, supplemental EISs should be prepared for the TMPs. BLM provided interim protection for owl sites pending completion of the Environmental Assessment. The Spotted Owl Environmental Assessment was completed on February 3, 1987. It concluded that any new information about the owl was too preliminary to support preparation of a supplemental EIS, and that the impacts of planned timber sales on spotted owl habitat were no worse than had been predicted under the original EISs. On April 10, 1987, BLM issued its decision not to prepare a supplemental EIS on the owl, finding that a
Portland Audubon Society appealed this decision to the Interior Board of Land Appeals and requested immediate stay of timber sales near identified spotted owl nests. The Interior Board of Land Appeals eventually, on February 28, 1988, upheld the decision not to prepare a supplemental EIS. Meanwhile, on October 19, 1987, plaintiffs had filed this action alleging violations of NEPA, the Oregon & California Lands Act (OCLA), 43 U.S.C. § 1181, the Federal Lands Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701 et seq., and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703 et seq.
The district court entered judgment for defendants on April 20, 1988, after granting defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), on the ground that judicial review of plaintiffs' claims was barred by section 314 of the 1987 interior continuing budget resolution. See Continuing Resolution, H.R.Res. 395, § 314, Pub.L. No. 100-202, 101 Stat. 1329, 1329-254. That section was reenacted without change in 1988 as section 314 of Pub.L. No. 100-446, 102 Stat. 1825.
We reversed and remanded. Portland Audubon Society v. Hodel, 866 F.2d 302 (9th Cir.1989) ("PAS I"). We found the language of section 314 "anything but clear" and cautioned that the court must examine the language of the statute and assess whether, following principled methods of statutory interpretation, the withdrawal of jurisdiction bars each of plaintiffs' claims.
Section 314 prohibits challenges to a BLM plan "solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan." At the same time, it allows challenges to "any and all particular activities to be carried out under existing plans."
With regard to the NEPA claim, the district court had not considered whether this suit is a challenge to the plans barred by
On remand and after further factual development, the district court held that plaintiffs' non-NEPA claims were barred by the equitable doctrine of laches. Portland Audubon Society v. Lujan, 712 F.Supp. at 1482-84. The district court noted that the OCLA and FLPMA claims, 43 U.S.C. §§ 1181, 1701 et seq., challenge the Oregon BLM Director's 1983 Forest Resources Policy Statement (FRPS) requiring that all lands suitable for timber production be managed for timber and wood product production, to the extent possible under the requirements of law. Id. Similarly, according to the district court, the MBTA claim, 16 U.S.C. § 703, is based on "predictions of the demise of the spotted owl made in the [EISs] issued between 1979 and 1983." Id. The court concluded that
Id. at 1484.
On remand of the NEPA claim, the court held that BLM's decision not to prepare a supplemental EIS in 1987 was not subject to judicial review in these proceedings. The court held that the suit was a challenge to the plans and not to "particular activities to be carried out under existing plans," and further, that the NEPA claim was based upon "new information." The court held the NEPA claim barred and granted summary judgment to BLM. Id. at 1485-89.
After unsuccessfully seeking a stay pending appeal in the district court, plaintiffs appealed and sought a stay pending appeal in this court. After considering the voluminous motion papers filed by all sides, we granted the stay and expedited the appeal, with briefing limited to the issues considered in the opinion of the district court.
The district court's finding that plaintiffs' NEPA claim is based on "new information" is not contested in this appeal. Instead, the argument is focused on whether plaintiffs challenge the plans or "particular activities to be carried out under the existing plans."
Plaintiffs' NEPA claim is not phrased as a direct challenge to the existing plans. This does not, however, end the inquiry. If it did, we would not have remanded the case in order for the district court to determine how to apply the "particular activities" language to plaintiffs' NEPA claim.
The district court reads section 314 as barring any challenge to a sale unless a plaintiff can demonstrate new information "site-specific" to that timber sale. Plaintiffs argue that they have met even this test: they have identified specific sales that include old-growth timber in close proximity to an owl nest. Their new information is, they say, specific to each of these sales and their challenge thus has no bearing on BLM's other sales unless they also contain owl habitat.
In describing plaintiffs' claim as an attack on the plans, the government and the district court both begin with the text of section 314, as well as the legislative history of section 314. The district court attempted to "give meaning to the statute as a whole and avoid rendering any part of the statute inoperative or insignificant." Portland Audubon Society v. Lujan, 712 F.Supp. at 1488. The court interpreted section 314's language that "[t]he Forest Service
We do not find the above-quoted language of section 314 very helpful. The entire sentence reads:
This sentence, when read in its entirety, does not seem to be part of section 314's jurisdictional bar, but more likely was intended to excuse the Forest Service and BLM from failure to complete their new plans on schedule. Section 6(c) of the NFMA, 16 U.S.C. § 1604(c), requires the Forest Service to complete its new plans by September 30, 1985. While the statute does not cite any deadline that similarly constrains BLM, BLM did decide in 1986 that it would replace the current western Oregon plans in 1990. Were a plan to become invalid or subject to challenge "on its face" if it becomes "outdated" — in the same manner as an expired driver's license or passport — no timber sales or other actions could be tiered to the plan EIS, and the management scheme would collapse in chaos. We cannot say whether, in the absence of section 314, the Forest Service plans would have become void after September 31, 1985.
We agree, however, with the district court and the government that the 1988 legislative history gives some support to the BLM interpretation of section 314 as barring this claim. The conference committee report provides that section 314 "is not intended to preclude case-by-case timber sale appeals in site-specific instances." H.R. Conf.Rep. 862, 100th Cong., 2d Sess. 76 (1988). The Senate Report explains further, however, that a challenge to a particular sale may be barred if it is in effect an indirect challenge to a plan.
S.Rep. No. 100-410, 100th Cong., 2d Sess. 122-123 (1988). These committee reports suggest that, in the context of decisions about timber harvesting, the "particular activities" language in section 314 refers to individual timber sales and protest procedures available under 43 C.F.R. § 5000 et seq.
We need not consider in this litigation which "particular activities" other than those related to timber sales remain open to challenge, as plaintiffs do not challenge any non-timber-related activities. We also need not consider whether section 314 would bar a challenge that raises cumulative concerns in the context of an individual sale. That issue is raised with regard to Forest Service timber sales in another case currently pending before us, Oregon Natural Resources Council v. Mohla, No. 89-35350.
As we remarked in PAS I:
866 F.2d at 306. Similar arguments are made here. On this appeal plaintiffs claim support from the fact that they challenge less than 30 percent of planned timber sales; a challenge to 30 percent of one kind of "particular activity" authorized by the plans is not a challenge to the underlying plans, say plaintiffs. Looking at the same facts, the government argues that the relief demanded by plaintiffs is so broad that it would effectively vacate the BLM plans. The government points out that the injunctions plaintiff seeks would make it impossible for BLM to approach, much less meet, its annual allowable harvests under the plans. In attempting to define the statutory meaning by looking only at the relief this lawsuit demands, however, both plaintiffs and BLM go astray.
The answer to this quandary lies not in the scope of relief sought by plaintiffs, but in the underlying nature of plaintiffs' grievance. Plaintiffs challenge BLM's decision not to prepare a supplemental EIS in 1987. This was, they argue, a violation of NEPA. "NEPA does not work by mandating that agencies achieve particular substantive environmental results. Rather, NEPA ... [focuses] government and public attention on the environmental effects of proposed agency action. 42 U.S.C. § 4321." Marsh v. Oregon Natural Resources Council, ___ U.S. ___, 109 S.Ct. 1851, 1859, 104 L.Ed.2d 377 (1989). NEPA "insure[s] that ... environmental amenities and values may be given appropriate consideration in decisionmaking" by requiring that an EIS be prepared in every "recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332. Plaintiffs' challenge does not make sense unless it is connected to some underlying federal action or substantive decision.
Here, if plaintiffs were to succeed on the merits of their NEPA claim, BLM would be required to suspend its management plans and prepare a supplemental EIS, addressing concerns about the northern spotted owl. A supplemental EIS cannot be entirely divorced from some underlying substantive federal decision: a decision either to continue with the action that followed preparation of the original EIS or to modify that action. In this case, a supplemental EIS would consider the possible land use
We hold that section 314 precludes this kind of claim.
There is a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984). It was that presumption which, in PAS I, required us to remand in order for the district court to apply the specific language of section 314 to plaintiffs' claims, to determine if, in fact, plaintiffs' claims rely solely on "new information" and whether they challenge the plans or "particular activities." The presumption in favor of review is overcome, however, where there is "persuasive reason to believe" that Congress intended to preclude judicial review, Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), or a clear statutory command, Moapa Band of Paiute Indians v. Dep't. of Interior, 747 F.2d 563, 565 (9th Cir.1984). Here, there exists not only persuasive evidence of congressional intent, but an explicit statutory command precluding review.
Plaintiffs have had ample opportunity to put forward an alternative interpretation of section 314 which would give meaning to the prohibition on challenges to the BLM plans. They present arguments, addressed above, explaining that the NEPA claim does not challenge the plans. They do not, however, provide any satisfactory explanation of what exactly would be a challenge to the plans under their interpretation of section 314. They present us no alternative interpretation that would allow us to give meaning to Congress' enactment, as is our duty, and yet would allow their NEPA claim to survive section 314. The district court correctly held that section 314 bars the NEPA claim.
Plaintiffs also claim violations of the Oregon & California Lands Act, 43 U.S.C. § 1181, the Federal Lands Policy and Management Act, 43 U.S.C. §§ 1701 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq. The district court granted summary judgment to BLM on each of these claims. These claims did not challenge the 1987 BLM decision not to prepare a supplemental EIS addressing the spotted owl. Instead, plaintiffs' complaint charges that BLM violated the OCLA and FLPMA by adopting a Forest Resources Policy Statement (FRPS) in 1983 requiring that all lands suitable for timber production be managed for the maximum timber production legally possible, and that destruction of old growth forest on BLM lands kills spotted owls, constituting a "taking" in violation of the MBTA.
In PAS I, we found that even if these claims could be construed as challenges to the plans, "fairly construed, the complaint does not rely solely on new information." 866 F.2d at 306. The OCLA and FLPMA claims challenge a BLM policy adopted prior to completion of many of the TMPs. The MBTA claim challenges the destruction of owl habitat planned in the TMPs. Indeed, as discussed in BLM's 1987 Spotted Owl Environmental Assessment, each TMP makes a region-wide decision, analyzed in the EIS, to trade owls for timber. The predicted destruction of owl habitat and resulting owl deaths are not new information. It was precisely this reasoning which allowed BLM to conclude that no supplemental EIS would be required.
The district court held that "the APA does not provide a basis for a challenge by [plaintiffs] to administrative decisions made over five years ago and upon which the BLM has operated without objection....
We have repeatedly cautioned against application of the equitable doctrine of laches to public interest environmental litigation.
Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir.1982) (citations omitted). This approach has found unanimous support in the other circuits.
When the district court has invoked laches, a reviewing court must determine whether the district court properly found (a) lack of diligence by the party against whom the defense is asserted, and (b) prejudice to the party asserting the defense. Preservation Coalition, 667 F.2d at 854; Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir.1980). Here, the district court did not make a specific finding of prejudice or provide any explanation of how it considered the government to have been prejudiced. Other than noting that plaintiffs had not brought court challenges under the OCLA, FLPMA and MBTA until 1987, the district court did not indicate that plaintiffs had shown a lack of diligence.
The government argues that plaintiffs' claims should have been presented earlier, during the planning process that resulted in the TMPs. Plaintiffs respond that while the legal basis for their non-NEPA claims may have been available sooner, the motivation for this litigation came from the later revelation that the northern spotted owl may be endangered. Soon after receiving predictions of the owl's eventual demise in 1985 and 1986, they asked BLM to reexamine its planned destruction of owl habitat. Following BLM's refusal to prepare a supplemental EIS, they filed an administrative challenge, raising the same non-NEPA claims they now pursue.
An "indispensable element of lack of diligence is knowledge, or reason to know, of the legal right, assertion of which is `delayed'." City of Davis v. Coleman, 521 F.2d 661 (9th Cir.1975). As plaintiffs argue, the first case of which we are aware that acknowledges the right of citizens to enforce the MBTA through the Administrative Procedure Act was decided in 1987. Alaska Fish & Wildlife Fed'n v. Dunkle, 829 F.2d 933, 938 (9th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1290, 99 L.Ed.2d 501 (1988). Plaintiffs cannot be said to have lacked diligence in not pursuing the MBTA claim earlier.
Even if plaintiffs had lacked diligence, however, the government has not demonstrated that it will suffer any prejudice if a court hears the merits of plaintiffs' non-NEPA claims. This is not a case where a dam or nuclear power plant has already been built, where a plaintiff has "sand-bagged" a defendant by bringing a late challenge.
We AFFIRM summary judgment in favor of the government on the NEPA claim and REVERSE and REMAND plaintiffs' non-NEPA claims. The injunction pending appeal is vacated on the date of the filing of this opinion.
No party to recover costs in this court.
Here, the 1988 legislative history does not contradict any prior judicial interpretation, and Congress did not reenact the same language in order to make a change.