Home » Case Summaries » 1996 » Northwest Forest Resource Council v. Glickman


Northwest Forest Resource Council v. Glickman



In this case the court consolidated two appeals arising from the same case. First, the court affirmed the district court’s adoption of Northwest Forest Resource Council’s (NFRC) interpretation of section 2001(k)(1) of the “Salvage Rider,” that the “Secretaries of Agriculture and Interior were required to release all timber sale contracts offered or awarded between October 1, 1990 and July 27, 1995” in forests in Oregon and Washington. Second, the Ninth Circuit affirmed the district court’s partial denial of intervention to Oregon Natural Resources Council (ONRC) and other environmental groups. ONRC was allowed to participate only as amicus curiae.

NFRC had challenged the secretary’s interpretation of the “subject to section 318” wording in section 2001(k)(1) of the “Salvage Rider.” Section 2001(k)(1) required the Secretaries to release, within forty-five days of the Act’s enactment, “all timber sale contracts offered or awarded before [the Act’s enactment] in any unit of the National Forest System or district of the Bureau of Land Management subject to section 318.”[1] NFRC argued that “subject to section 318” defined the Act’s geographic scope and was not temporal. This meant that the Act applied to all sales between October 1, 1990 and July 27, 1995, not only to sales during fiscal years 1989 and 1990. In opposition, the Secretaries argued that “subject to section 318” defined temporal and geographic scope, which meant that the Act could only release sales from 1989 and 1990. The court found for NFRC based upon their analysis of the plain language of the statute, their application of the canons of interpretation, and the legislative history.

The court first looked to the plain language of the section 2001(k)(1). This section defined its applicable time period as before the Act’s enactment, which was July 27, 1995. The court reasoned that since section 2001(k)(1) used the word “all” to describe which timber sale contracts it applied to, then it applied to all sales during the applicable time period, which was before the Act was enacted. The geographical scope was defined as “any unit [of national forests or BLM lands] subject to section 318.”[2] The court argued that by putting the “subject to section 318” wording after the geographical portion of the sentence, it indicated that it was intended to modify that part. The words define the geographic scope of the Act and not the temporal scope because the time period had already been defined. Thus the court concluded the Act was not limited by section 318’s time limits but only by its geographic limits.

In further strengthening its argument the court turned to several canons of interpretation. First, the doctrine of the last antecedent says “where one phrase of a statute modifies another, the modifying phrase only applies to the phrase immediately preceding it.” Since “subject to section 318” immediately follows “unit[s] of the National Forest System [and] district[s] of the Bureau of Land Management” then it modifies only this section, so it only applies to the geographic scope. Second, the court used the canon of ordinary meaning. “Subject to” means governed or affected by.[3] If the definition is injected into the wording of section 2001(k)(1) then it would say “governed or affected by section 318.” Those geographic units governed or affected by section 318 were “the national forests of Oregon and Washington.” Therefore, the court reasoned that the geographic units encompassed by the statute were subject to section 318. Finally, the court used the principle of giving effect to every statutory subsection. The court reasoned that if the Secretary’s interpretation was correct, then the time period phrase of “offered or awarded before [the date of enactment of the 1995 Recissions Act]” would be superfluous because the “subject to section 318” clause would have specified the time period. Thus, the court held that NFRC’s interpretation was the correct one.

The court next turned to the legislative history of section 2001(k)(1). A conference report stated that the “bill releases all timber sales which were offered for sale beginning in fiscal year 1990 to date of enactment. . . .”[4] This legislative history, along with other House and Senate Reports, convinced the court that it had decided correctly.

The court then turned to the second issue in the case: whether or not ONRC should be allowed to intervene. In deciding this issue, the court considered several factors. In order to intervene as of right the prospective intervenor must have a “significantly protectable” interest. ONRC claimed it had a right to intervene to keep entities from defying environmental laws. The court, however, held that section 2001(k)(1) did not defy environmental laws because it explicitly preempts them. In addition, the court held that ONRC was not “directly involved in the enactment of the law or in the administrative proceedings out of which the litigation arose.” The court, therefore, found that ONRC had no “significantly protectable” interest.

Next the court looked to see if ONRC had a “significantly protectable” interest, and whether the Secretaries adequately protect that interest. The court agreed that ONRC’s interests would be adequately protected because both ONRC and the Secretaries want the same narrow construction of the statute. Furthermore, the prospective intervenor bears the burden to show that the existing party could not adequately represent their interests. The Ninth Circuit held that ONRC did not meet this burden.

Finally, the court looked at the possibility of permissive intervention. The court uses an abuse of discretion standard in testing the district court’s reasoning for allowing or disallowing permissive intervention. According to the court ONRC lacked independent grounds for jurisdiction, which are necessary for permissive intervention. Since the Ninth Circuit found that ONRC could not permissively intervene it concluded the district court did not abuse its discretion in not allowing ONRC to permissively intervene.

[1]Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act (Emergency Appropriations Act), 1995, Pub. L. No. 104-19, §§ 2001-2002, 109 Stat. 194, 240-47 (1995) (codified at 16 U.S.C. § 1611).

[2] Id.

[3]Black’s Law Dictionary 1594 (4th ed. 1968).

[4]H.R. Conf. Rep. No. 104-124, at 137 (May 16, 1995).

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