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Northwest Forest Resource Council v. Pilchuck Audubon Soc'y



In a consolidated appeal, timber harvesters and environmentalists separately challenged the validity and implementation of section 2001(k) of the Rescissions Act of 1995. Section 2001 (Salvage Rider) of the Act required the Secretaries of Agriculture and Interior (Secretaries) to expedite timber harvesting. Under section 2001(k) the Secretaries are required to release certain sales that were previously authorized by Congress in the Northwest Timber Compromise of 1989 (section 318).

Pilchuck argued that section 2001(k) was unconstitutional because it violated the separation of powers requirement of the Constitution. The appellants reasoned that through section 2001(k) Congress reopened timber sales that the federal courts had enjoined. Thus Congress impermissibly usurped the powers of the judiciary to enjoin actions. The court applied the test developed in Robertson v. Seattle.[1] Stating that separation of powers is violated where Congress directs findings in a pending litigation and has not changed the underlying law, the court found that section 2001(k) did not violate separation of powers.

The court next examined whether the statute excluded, enjoined, or canceled sales from the mandate to reopen previously authorized sales. Section 2001(k)(1) required the Secretaries to release “all timber sale contracts offered before” the enactment of the Salvage Rider. The court found that the plain language of the word “offered” meant any sale “where the bids are opened at the auction.” Reasoning that bids were opened at the auctions before they were canceled or enjoined, the court held that the language of section 2001(k) did not exclude auctions that were canceled or enjoined.

In releasing the sales of the Northwest Timber Compromise of 1989, the Secretaries offered the sales to the previous high bidders. Some of these parties were unable or unwilling to act on the renewed offers. The timber harvesters claimed that section 2001(k) required the Secretaries to auction the sales to the other bidders at the previous auctions. The Ninth Circuit found that both the Forest Service[2] and the Bureau of Land Management (BLM)[3] had discretion to award or not to award a sale where the highest bidder could not take advantage of the sale. Section 2001(k) could only require the Secretaries to reopen the sales to other bidders if it preempted their regulatory authority. Since implied preemptions are not favored by the courts, the court reasoned that it must find an irreconcilable conflict between the two acts. Furthermore, the court stated it will only find an implied repeal if the “new statute is clearly repugnant, in words or purpose, to the old statute.”[4] The court found that the statute did not specify who the award of timber contracts must be made to, and that the “notwithstanding” clause of section 2001(k) was not necessarily preemptive. Therefore, the court held that the regulatory authority of the Secretaries was not preempted.

The final challenge regarded the implementation of the section 2001(k)(2) mandate that no sale would be released if any threatened or endangered bird was “known to be nesting” in the sale unit area. Marbled murrelets in California, Oregon, and Washington had recently been listed under the Endangered Species Act as threatened. After consulting with the Fish and Wildlife Service, the Forest Service found that a significant portion of its sales under section 2001(k) included areas where marbled murrelets were known to be nesting. In order to determine that the murrelets were known to be nesting, the Forest Service used the Pacific Seabird Group (PSG) Protocol. The PSG Protocol used various types of evidence to show that marbled murrelets were known to be nesting, such as: detection of a nest or fecal rings; murrelets flying into and out of a canopy of trees; and murrelets circling around a specific section of the forest. The court found that the PSG Protocol was generally accepted scientific methodology.

The timber harvesters argued that a murrelet would only be known to be nesting if there was evidence such as fecal rings, eggshell fragments, or dead chicks in the area. The district court rejected both interpretations of “known to be nesting” and developed its own test. The Ninth Circuit found that section 2001(k) did not define “known to be nesting.” Furthermore, the legislative history gave no guidance to help determine the issue. The court found that the term “known to be nesting” was ambiguous. Accordingly, the court found that the agency’s definition should be deferred to unless it was an impermissible interpretation.[5] The court deferred to the Forest Service’s interpretation, holding that it was not contrary to congressional intent.

[1]504 U.S. 429 (1992).

[2]National Forest Management Act of 1976, 16 U.S.C. § 472(a) (1994). Regulations are in 36 C.F.R. § 223 (1996).

[3]Repeal of an Act to Encourage the Growth of Timber on the Western Prairies of 1878, 43 U.S.C. §§ 1181(a), 1701-1722 (1994); 43 C.F.R. § 8000 (1996).

[4]Grindstone Butte Project v. Kleppe, 638 F.2d 100, 102 (9th Cir. 1981).

[5]Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).

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