Law Barring Anti-Logging Suits Rejected

A federal appeals court on Tuesday struck down an unusual attempt by Congress to bar legal challenges by environmentalists to logging plans they see as a threat to the northern spotted owl and the ancient forests of the Pacific Northwest.

The U.S. 9th Circuit Court of Appeals ruled 3 to 0 that a key provision of a 1989 federal law violated the Constitution by prohibiting courts from deciding whether logging plans met environmental standards.

The ruling is significant, environmentalists said, because it prevents the Bush Administration from extending the provision--and the heavy logging it allowed--for another year. The law expires at the end of the fiscal year Sept. 30.

Such an extension was considered likely because a special presidential task force has so far been unable to find a way to protect both the owl and 28,000 timber jobs believed threatened by proposals to reduce harvest levels to save the bird from extinction.

The task force was supposed to have submitted a compromise by Sept. 1 but has been unable to find one that could save jobs and still meet legal requirements to save the owl.

Simply extending the 1989 law--in which Congress ordered a specific harvest level regardless of whether it violated federal environmental protection laws--was seen as a way to provide some breathing room until a permanent solution could be found.

Tuesday’s ruling means the Administration must find some answer by the end of the month or environmentalists could quickly challenge timber sales in national forests, possibly producing heavy layoffs in the timber industry.

The law struck down Tuesday was described by its main sponsors, Republican Sens. Mark O. Hatfield and Bob Packwood of Oregon, as a compromise in the ongoing Northwest timber dispute that would provide both security for the logging industry and protection for the owl and the region’s old-growth forests.

But the appeals panel found that the law’s prohibition of legal challenges on environmental grounds improperly intruded on the authority of the judiciary, violating the constitutional principle of separation of powers.

“Congress for the first time endeavors to instruct federal courts to reach a particular result in pending cases. . . ,” Judge Harry Pregerson wrote in an opinion joined by Chief Judge Alfred T. Goodwin and Judge Mary M. Schroeder. While Congress may repeal or amend laws, the panel said, it may not direct courts to “decide the cases in a particular way.”

The ruling was hailed by Todd D. True, attorney for the Sierra Club Legal Defense Fund Inc. in Seattle, who said it would not only reopen the way for environmentalists to challenge timber-cutting plans but also could prevent Congress from extending the law when it is due to expire.

“The significance of the ruling goes beyond environmental cases,” True said. “It establishes very broadly that Congress cannot come in and tell courts what to do. Congress makes laws, but courts decide cases.”

“What we knew was bad public policy has been declared unconstitutional,” said Melanie Rowland, senior counsel for the Wilderness Society in Seattle. “We hope politicians will realize they can’t simply ignore federal laws.”

Rowland said the ruling opens to challenge as much as 1 billion board-feet--500,000 to 1 million acres--of timber sales in Oregon and Washington. As of Sept. 1, at least that much of the congressionally mandated 7.7 billion board-feet of lumber had not yet been sold by the Forest Service and Bureau of Land Management.

Mark C. Rutzick, a Portland lawyer representing the Northwest Forest Resource Council, a timber industry group, said it was uncertain what impact the ruling would have on logging, jobs and other industry concerns.

He noted that most of the timber sales authorized in the law already had been made and could not now be challenged. “The ruling does not allow anyone to retroactively challenge a sale,” Rutzick said. As for future challenges hinted at by Rowland, he said: “You still have to prove your case.”

Rutzick said the timber group would consider asking for a rehearing before the appeals court and, if that fails, appealing to the U.S. Supreme Court.

The case arose in February, 1989, when the Seattle Audubon Society and other environmental groups filed suit in federal court challenging Forest Service timber-management plans as failing to protect the northern spotted owl. Later, logging groups challenged the plans as overly restricting timber harvesting.

Meanwhile, Congress enacted the so-called “Northwest Timber Compromise,” requiring theForest Service and Bureau of Land Management in 1990 to sell 7.7 billion board-feet of lumber, most of it in Oregon and Washington. Certain areas were set aside protecting forests and the spotted owl.

The owl, declared threatened with extinction by the U.S. Fish and Wildlife Service, nests chiefly in virgin, or old-growth, forests from British Columbia to Northern California. Heavy logging of those forests, prized for their huge volumes of high-priced wood, have cut the number of northern spotted owls to a few thousand. Federal scientists say even the strictest preservation plan now being considered will not prevent a further decline of about 40% because old-growth forests are being felled so fast.

After setting aside some owl habitat, the compromise legislation prohibited judicial review of challenges to timber sales and to plans to protect the owl and directed the courts to find that the government’s forest management strategies satisfied federal environmental standards.

Last November, U.S. District Judge William L. Dwyer rejected contentions by the Seattle Audubon group that the provision of the law barring environmental challenges violated the separation of powers doctrine.

In Tuesday’s ruling, the appeals panel reversed that ruling and held that the law conflicted with the historic responsibility of the judiciary to decide cases.

“The statute at issue does not establish a new law, but directs the court to reach a specific result and make certain factual findings under existing law,” Pregerson said.

“In doing so, Congress did not amend or repeal laws, as it unquestionably could do, but rather prescribed a rule for the decision (in a case) in a particular way, without changing the underlying laws, as it unquestionably cannot do,” he wrote.

BACKGROUND

Federal courts, acting on environmentalists’ lawsuits, placed thousands of acres of national forests off-limits to logging in the late 1980s because the U.S. Forest Service did not approve timber-harvest plans in strict accordance with federal law. Last year, lawmakers from the hard-hit Pacific Northwest were able to amend the Forest Service’s budget to require the agency to sell a specific, very large volume of timber this year, even if the sales violated federal environmental laws. The goal was to keep sawmills supplied with logs while a permanent solution was found to issues raised by environmentalists, such as the allegation that extensive logging was driving the rare northern spotted owl into extinction. Congress attempted to protect this arrangement from a new round of lawsuits by forbidding courts from considering any legal challenges, a provision overturned Tuesday by the U.S. 9th Circuit Court of Appeals.