L. Rep. 20,631
DOUGLAS COUNTY, a political subdivision of the State of
Oregon, Plaintiff-Appellee.
v.
Bruce BABBITT, Secretary of the Interior, United States
Department of the Interior, Defendant-Appellant.
DOUGLAS COUNTY, a political subdivision of the State of
Oregon, Plaintiff-Appellee,
v.
Bruce BABBITT, Defendant,
and
HEADWATERS, INC.; Umpqua Valley Audubon Society,
Defendants-Intervenors-Appellants.
Nos. 93-36013, 93-36016.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 9, 1995.
Decided Feb. 24, 1995.
Albert M. Ferlo, Jr., Environmental and Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendant-appellant.
Ronald S. Yockim, Cegavske, Johnston, Yockim & Associates, Roseburg, OR, for plaintiff-appellee.
Todd D. True, Sierra Club Legal Defense Fund, Inc., Seattle, WA, for defendants-intervenors-appellants.
Scott W. Horngren, Haglund & Kirtley, Portland, OR, and Steven P. Quarles, Crowell & Moring, Washington, DC, for Timer Amici.
Appeals from the United States District Court for the District of Oregon.
Before: PREGERSON and TROTT, Circuit Judges, and FITZGERALD, Senior District Judge.*
PREGERSON, Circuit Judge:
I. OVERVIEW
Secretary of the Interior Bruce Babbitt (the Secretary) and intervenors, Headwaters, Inc. and Umpqua Valley Audubon Society (Headwaters), appeal the district court's grant of summary judgment in favor of Douglas County, Oregon (the County), in the County's action alleging that the Secretary failed to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Sec. 4321 et seq., in designating certain federal land as critical habitat for the Northern Spotted Owl pursuant to the Endangered Species Act of 1973 (ESA), 16 U.S.C. Sec. 1533(a)(3). The district court granted the County permanent injunctive relief, setting aside the сritical habitat designation, but then stayed its order pending appeal. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part, reverse in part, and remand for consideration.
II. BACKGROUND
A. The Statutory Framework.
1. The Endangered Species Act.
Under Sec. 4(a) of the ESA, 16 U.S.C. Sec. 1533(a), the Secretary1 may list a species as threatened or endangered. When the Secretary lists a species, he or she must also designate a "critical habitat" for that species. 16 U.S.C. Sec. 1533(a)(3). The ESA defines "critical habitat" as the geographical areas "essential to the conservation of the species." 16 U.S.C. Sec. 1532(5)(A). The Secretary must decide what area to designate as a critical habitat "on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. Sec. 1533(b)(2). The ESA rеquires the Secretary to follow a clear set of procedures for public notification and comment after he or she designates a critical habitat. 16 U.S.C. Sec. 1533(b)(4)-(6). The effect of designating an area as a critical habitat is that federal actions that are likely to destroy or disrupt the habitat are prohibited. 16 U.S.C. Sec. 1536(a)(2).
2. The National Environmental Policy Act.
Section 102(2)(C) of NEPA, 42 U.S.C. Sec. 4332(2)(C), requires "to the fullest extent possible," that "all agencies of the Federal Government" shall
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,(iv) the relаtionship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
The above describes the requirements for an environmental impact statement (EIS). The EIS is "a procedural obligation designed to assure that agencies give proper consideration to the environmental consequences of their actions." Merrell v. Thomas,
B. Facts.
On June 26, 1990, in response to litigation brought by a number of environmental groups, Northern Spotted Owl v. Hodel,
On May 6, 1991, the Secretary published an initial proposed regulation designating 11,639,195 acrеs of federal, state and private lands as "proposed critical habitat." 56 Fed.Reg. 20,816 (1991). The Secretary also announced his intention to revise the designation after receiving comments on the initial proposal. Id. After proposing the critical habitat, the Secretary held four public hearings at which 364 people testified on the proposal.
As part of his May 6, 1991 announcement, the Secretary concluded that he did not need to prepare an EA (and therefore an EIS) in conjunction with the designation. 56 Fed.Reg. 20,824 (1991). The Secretary referred to a policy, that he first announced in 1983, that determinations made under Sec. 4 of the ESA were not subject to NEPA. The 1983 policy was based primarily on (1) the Sixth Circuit's holding in Pacific Legal Foundation v. Andrus,
The Secretary issued a revised proposed designation of critical habitat on August 13, 1991. 56 Fed.Reg. 40,002 (1991). The revised designation reduced the critical habitat to 8,240,160 acres by eliminating all privately owned land and most state owned land. The Secretary held another sixty day comment period on the proposed designation and announced another four public hearings. The revised proposal affirmed the Secretary's decision that an EA was not necessary.
On January 15, 1992, the Secretary issued the final designation of critical habitat. 57 Fed.Reg. 1,796 (1992). The final designation includes 6,887,000 acres, all of which is federal land. The final rule includes a lengthy analysis of all the factors that led to the final critical habitat designation.
Douglas County filed this suit in United States District Court for the District of Oregon on September 25, 1991, seeking declaratory and injunctive relief. The County's primary allegation is that the Secretary failed to comply with NEPA in designating a critical habitat. The Secretary challenged Douglas County's standing to bring the action. All parties filed motions for summary judgment after publication of the final designation.
The district court found that the County had standing to pursue its claims. The court granted summary judgment on behalf of the County, finding that NEPA did apply to the Secretary's decision to designate a critical habitat. See Douglas County v. Lujan,
III. ANALYSIS
On appeal, the Secretary and Headwaters argue that the district court erred when it ruled in favor of the County. The Secretary asserts that the County does not have standing and, on the merits, argues that NEPA does not apply to designations of critical habitat because the ESA procedures have displaced the NEPA procedures. Headwaters argues that an EIS is not required because the federal action at issue does not change the natural, physical environment, and because requiring an EIS would frustrate the purposes of both NEPA and the ESA. Appellee Douglas County and amici Northwest Forest Resource Council, Douglas Timber Operators, Southern Forest Products Association, Southern Timber Purchasers Council, and American Forest & Paper Association (Timber), respond to these claims.
A. Standing.
1. Standard of Review.
We review questions of standing de novo. See Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz.,
2. Analysis.
The Supreme Court articulated the requirements for Article III standing in Lujan v. Defenders of Wildlife,
First, the plaintiff must have suffered an "injury in fact"--an invasion of a legally-protected interest which is (a) concrete and particularized and (b) "actual or imminent, not 'conjectural' or 'hypothetical,' " Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Id. 504 U.S. at ----,
In addition to these constitutional requirements, a plaintiff challenging a statutory provision under the Administrative Procedure Act (APA), 5 U.S.C. Secs. 551 et seq., must show that the injury he or she has suffered falls within the "zone of interests" that the statute was designed to protect. See Lujan v. National Wildlife Federation,
NEPA was enacted in order "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. Sec. 4321 (1988). The purpose of NEPA is to protect the environment, not ... economic interests.... Therefore, a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA.
Nevada Land Action Ass'n v. U.S. Forest Service,
To find that the County's interests do not fall inside the "zone of interests" protected by NEPA, we would have to find that (1) the County's interests are inconsistent with the purposes of NEPA, and that (2) the interests are so inconsistent that it would be unreasonable to assume that Congress intended to permit the suit. See Mt. Graham Red Squirrel v. Espy,
Douglas County asserts that it has standing based on several types of injuries: procedural injury, injury to its proprietary interests, injury to the quality of life of its citizens, injury to wildlife within the county, and injury to its resource management interests. We conclude that the narrow circumstances of this case are sufficient to support procedural standing for Douglas County. This being the case, there is no need for us to address the other alleged bases for standing.
The County asserts that it has standing "based upon its procedural injuries resulting from the FWS's failure to prepare an environmental document that explores a range of alternatives and cumulative effects." Appellee Opening Brief at 15. The Supreme Court recently addressed the issue of procedural standing in Lujan v. Defenders of Wildlife,
The County has been "accorded a procedural right" because NEPA provides that "local agencies, which are authorized to develop and enforce environmental standards" mаy comment on the proposed federal action. 42 U.S.C. Sec. 4332(2)(C). The County is such a local agency because an Oregon Statute authorizes counties to "[p]repare, adopt, amend, and revise" land management plans that contain environmental standards. Or.Rev.Stat. Sec. 197.175 (1993); see also Or.Admin.R. 660-06-000.
The County must also show a "concrete interest" that underlies its procedural interest. That interest must be within the zone of interests NEPA was designed to protect. The County's proprietary interest in its lands adjacent to the critical habitat represents this necessary "concrete interest". The affidavit of Kenneth Hendrick, director of the Land Department for Douglas County, expresses concerns with the proposed critical habitat designation. Hendrick alleges that the land management practices on federal land could affect adjacent сounty-owned land: "By failing to properly manage for insect and disease control and fire, the federal land management practices threaten the productivity and environment of the adjoining [county] lands." E.R. at 33-34.
These statements describe concrete, plausible interests, within NEPA's zone of concern for the environment, which underlie the County's asserted procedural interests. It is logical for the County to assert that its lands could be threatened by how the adjoining federal lands are managed.6 It is uncertain whether the findings of an EIS would affect the Secretary's critical habitat designation and when the adjacent county lands would actually be harmed. But under Lujan, those concerns are not important: "The person who has been accorded a procedural right to protect his concrete interests can assert the right without meeting all the normal standаrds for redressibility and immediacy." Lujan, 504 U.S. at ---- n. 7,
In short, the County meets all of Lujan's strict procedural standing requirements. The County has a procedural right, as well as a concrete interest that could be harmed by the critical habitat designation, and that interest is within the zone of interests protected by NEPA.
B. NEPA claims.
1. Standard of Review.
We review a district court's grant of summary judgment de novo. See Jesinger v. Nevada Fed. Credit Union,
2. Analysis.
Whether NEPA applies to a decision of the Secretary to designate a critical habitat under the ESA is a question of first impression. Section 102(2)(C) of NEPA, 42 U.S.C. Sec. 4332(2)(C), requires "to the fullest extent possible," that "all agencies of the Federal Government" comply with the EIS requirements when they take "major Federal actions significantly affecting the quality of the human environment." Preparation of an EIS ensures both that agencies give proper consideration to the environmental consequences of their actions, see Merrell,
The Supreme Court has interpreted the language "to the fullest extent possible" to be "neither accidental nor hyperbolic." Flint Ridge Dev. Co. v. Scenic Rivers Ass'n,
Despite the strict language of NEPA, courts have found that some agency actions are not subject to the NEPA requirements. We have noted that "NEPA was not intended to repeal by implication any other statute." Merrell,
In Flint Ridge,
In contrast, the designation of a critical habitat at issue in the instant case does not occur in a highly restrictive time frame. Thus, time constraints alone would not prevent the Secretary from preparing an EIS. Douglas County argues that without this "irreconcilable" statutory conflict, NEPA must apply. We disagree, and, for the reasons set forth below, we hold that NEPA does not apply to the designation of a critical habitat.
a. ESA Procedures Have Displaced NEPA Requirements.8
In Merrell v. Thomas,
The legislative history of the ESA at issue in the instant case follows a similar pattern and convinces us that Congress intended that the ESA procedures for designating a critical habitat replace the NEPA requirements. In 1978, eight years after the effective date of NEPA, Congress enacted a set of amendments to the ESA. The amendments provided a procedure for thе designation of a critical habitat and allowed Congress to consider the economic impact of a designation. The language of the House Committee Report indicates that the members contemplated the structure of the entire process for designating critical habitats.9 The report indicates that the committee members wished to introduce some "flexibility" into the stringent requirements of the ESA. H.R.Rep. No. 1625, 95th Cong., 2d Sess. 14, reprinted in 1978 U.S.C.C.A.N. 9453, 9464. The report states that "the legislation aims to improve the listing process and the public notice process" ensuring that the Secretary only makes a critical habitat designation "after a thorough survey of all the available data" and after notice to the affected communities. Id. The report later describes the extensive notice provisions that "will insure that the Department of the Interior is not listing speсies and designating critical habitat without consulting the views of the people of the affected area." Id. at 16.
The procedure Congress chose, as in Merrell, makes the NEPA procedure seem "superfluous." Before the Secretary can issue a final critical habitat designation, he or she must now (1) publish a notice and the text of the designation in the Federal Register; (2) give actual notice and a copy of the designation to each state affected by it; (3) give notice to appropriate scientific organizations; (4) publish a summary of the designation in local newspapers of potentially affected areas; and (5) hold a public hearing if one is requested. 16 U.S.C. Sec. 1533(b)(5). This carefully crafted congressional mandate for public participation in the designation process, like the FIFRA procedures reviewed in Merrell, displаces NEPA's procedural and informational requirements.
The process requires that the Secretary examine the effects of his or her actions by taking into account economic and other relevant impacts. Through that analysis and by examining "the best scientific data available," 16 U.S.C. Sec. 1533(b)(2), the Secretary will consider impacts that concern NEPA, to the extent that the critical habitat designation has a positive environmental effect on the species in question. The critical designation process also provides for public notice, another goal of NEPA. See Robertson,
As in Merrell, however, the procedure in the statute at issue represents a "compromise between disparate points of view," H.R.Rep. No. 1625 at 13-14, 1978 U.S.C.C.A.N. 9463, 9464, which leaves little room for the imposition of the NEPA requirements. In Merrell, we concluded that applying NEPA to FIFRA's rеgistration process would "sabotage the delicate machinery that Congress designed to register new pesticides." Merrell,
In addition, the ESA has an important mandate that distinguishes it from NEPA. Congress gave a special guideline to the Secretary in the critical habitat process. Though the Secretary may exclude from the critical habitat any area, the exclusion of which, would be more beneficial than harmful, he or she must designate any area without which the species would become extinct. 16 U.S.C. Sec. 1533(b)(2). This mandate conflicts with the requirements of NEPA because in cases where extinction is at issue, the Secretary has no discretion to consider the environmental impact of his or her actions.
Congress also made an implicit choice to accept the Secretary's policy not to prepare EISs when designating critical habitats. This choice is added evidence that Congress did not intend NEPA to apply to critical habitat designations. In 1988, Congress amended the ESA again. Though it addressed other parts of Sec. 1533 (Sec. 4 of the ESA), Congress did not change the critical habitat provisions. This inaction is significant because before the 1988 amendments, in 1981, the Sixth Circuit in Pacific Legal Foundation,
More importantly, in 1983, the Secretary announced in the Federal Register his decision not to prepare EAs (and, therefore, EISs) before making critical habitat designations. 48 Fed.Reg. 49,244 (1983). In the 1988 amendments, Congress did not respond to this interpretation of Sec. 1533. "[W]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the 'congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.' " Commodity Futures Trading Comm'n v. Schor,
Douglas County argues that the legislative history of the ESA is not comparable to that of FIFRA. The County relies primarily on a statement in the Conference Committee Report for the 1978 ESA amendments which requires that actual notice of the critical habitat designation and "any environmental assessment or environmentаl impact statement" be supplied to affected local governments. H.Conf.Rep. No. 1804, 95th Cong., 2d Sess., 27 (1978), reprinted in 1978 U.S.C.C.A.N. 9484, 9494. The statement is far from a clear, considered indication of congressional intent. The comment does not direct the Secretary to prepare an EA or an EIS, it just states that if one is available, it should be forwarded. In light of the fact that this language did not become part of the final statute, and in light of the rest of the legislative history, we think this phrase does not indicate that Congress intended NEPA to apply to ESA critical habitat designations.
The district court, finding that Congress intended NEPA to apply to critical habitat designations, made much of the debate on the Senate floor over the 1978 amendments. See Douglas County,
The County argues that Jones v. Gordon,
As for the concern that if the Secretary is not subject to the NEPA requirements, he or she will have unchecked discretion in making critical habitat designations, we believe that the procedural requirements of the ESA, combined with review of decisions possible under the Administrative Procedure Act, are adequate safeguards.11
b. NEPA does not Require an EIS for Actions that Preserve the Physical Environment.
Even if the legislative history suggesting that Congress intended that the ESA procedure for designating a critical habitat displace the NEPA requirements were not as clear, the Secretary would still not be obliged to prepare an EIS when he or she designated a critical habitat under the ESA. We find that the NEPA procedures do not apply to federal actions that do nothing to alter the natural physical environment.
When we consider the purpose of NEPA in light of Supreme Court guidance on the scope of the statute, we conclude that an EA or an EIS is not necessary for federal actions that conserve the environment.12 The purpose of NEPA is to "provide a mechanism to enhance or improve the environment and prevent further irreparable damage." Pacific Legal Foundation,
The Supreme Court discussed the NEPA requirements in Metropolitan Edison Co. v. People Against Nuclear Energy,
If the purpose of NEPA is to protect the physical environment, and the purpose of preparing an EIS is to alert agencies and the public to potential adverse consequences to the land, sea or air, then an EIS is unnecessary when the action at issue does not alter the natural, untouched physical environment at all.
Other courts have reached the same conclusion. In Sabine River Auth. v. U.S. Dept. of Interior,
The district court ruled against the defendants on this issue, but its treatment of the argument is unpersuasive. The district court found that the argument--that EISs are not required for federal actions that maintain the environmental status quo--could not be determinative, no matter its merits, because it assumed a fact not in evidence. That fact was, that the environment would remain unchanged if designated a critical habitat. The court offered as an example the possibility that the area could acquire more old growth characteristics if it were left alone.
The district court missed the point. Of course a forest, free of human interference, changes all the time--saplings grow, mature trees die, dead trees decay. The touchstone is not any change in the status quo, but change effected by humans. Headwaters argues, and we agree, that when a federal agency takes an action that prevents human interference with the environment, it need not prepare an EIS. The environment, of its own accord, will shift, change, and evolve as it does naturally.13
c. ESA Furthers Goals of NEPA Without Requiring an EIS.
We also find that NEPA does not apply to the designation of a critical habitat because the ESA furthers the goals of NEPA without demanding an EIS. NEPA was designed to "promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment," Metropolitan Edison,
The district court found that this rationale, which the Sixth Circuit applied in Pacific Legal Foundation,
First, the court in Pacific Legal Foundation,
The district court did not explain how it decided that the words of the statute were to be given such a broad meaning, and we think its interpretation is misguided. The other impacts that the Secretary may consider must be "relevant" to the designation process. The purpose of the ESA is to prevent extinction of species, and Congress has allowed the Secretary to consider economic consequences of actions that further that purpose. But Congress has not given the Secretary the discretion to consider environmental factors, other than those related directly to the preservation of the species. The Secretary cannot engage in the very broad analysis NEPA requires when designating a critical habitat under the ESA.
The second conclusion of the Sixth Circuit in Pacific Legal Foundation,
The third basis for the court's decision in Pacific Legal Foundation was that "the Secretary's action in listing a species as endangered or threatened furthers the purpose оf NEPA even though no impact statement is filed." Pacific Legal Foundation,
The district court found otherwise, stating that in the Ninth Circuit "NEPA applies to every major federal action absent a clear and unavoidable statutory conflict." Douglas County,
Fourth, the court in Pacific Legal Foundation,
IV. CONCLUSION
We find that Douglas County does have standing to challenge the Secretary's decision not to prepare an EIS before designating the Northern Spotted Owl critical habitat, based on its procedural injury. On the merits, we find that NEPA does not apply to the Secretary's decision to designate a habitat for an endangered or threatened species under the ESA because (1) Congress intended that the ESA critical habitat procedures displace the NEPA requirements, (2) NEPA does not apрly to actions that do not change the physical environment, and (3) to apply NEPA to the ESA would further the purposes of neither statute.
This conclusion is as consistent with legal precedent as it is with sound policy. The old growth forests and the species that inhabit them are unique resources that deserve protection. We are reluctant, as was the Sixth Circuit in Pacific Legal Foundation,
Each side to bear their own costs of suit.
Notes
The Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation
The Fish and Wildlife Service (FWS) is an entity within the Department of the Interior. To avoid confusion regarding the parties, in this opinion we will attribute any FWS action to the Secretary of the Interior (the Secretary)
The new Secretary of the Interior, Bruce Babbitt, has replaced Manuel Lujan as a defendant in this litigation
Ninth Circuit cases also have found that procedural injury can form the basis for standing. See Pacific Northwest Generating Coop. v. Brown,
It is unclear whether this "procedural right" must be conferred by a statute, or whether the right arises because a concrete interest is threatened. In Lujan, the Court discusses the "citizen-suit" provisions of the ESA which allow certain persons to sue and thus gives them a procedural right to ensure that statutory procedures are followed correctly. Lujan, 504 U.S. at ----,
In some of our cases we have granted standing based on a "procedural right" conferred by statute. In Coleman,
Because some of our cases and some language in Lujan require that plaintiffs have a right conferred by the challenged statute, we require that showing in this case.
The district court was correct to equate the "geographic nexus" test of past Ninth Circuit cases with the "concrete interest" test of Lujan, 504 U.S. at ---- n. 8,
Lujan, 504 U.S. at ---- n. 7,
Courts have discussed "categorical exceptions" to NEPA that do not apply in the instant case. See, e.g., Pacific Legal Foundation,
The County argues that because defendants did not raise the issue of statutory displacement in lower court, they may not do so on appeal. We disagree. Though in the district court, the defendants did not argue that the process of designating a critical habitat replaced NEPA, there is no bar to their raising new arguments on appeal if those arguments are purely legal. A court of appeals has the discretion to consider those new theories. See Telco Leasing, Inc. v. Transwestern Title Co.,
The language in the 1978 House Bill regarding designation of critical habitat eventually became the law in ESA Sec. 4(b), 16 U.S.C. Sec. 1533(b)
Courts have used a "functional equivalent" test to exempt agency action from NEPA requirements. In Pacific Legal Foundation,
Plaintiffs can challenge the Secretary's compliance with the ESA's procedural requirements under the APA, 5 U.S.C. Secs. 551, et seq
Amici Timber argue that if an EIS is not required for a designation of critical habitat, that the Secretary must prepare an EA, the document that explores whether an EIS is necessary. This line of reasoning is specious. If it is clear that an EIS is never necessary when the Secretary designates a critical habitat under the ESA, then an EA would not serve any purpose
Amici Timber argue that NEPA requires an EIS even for actions that maintain the status quo. Though the cases amici Timber cite do involve actions that, at least in part, preserve the environment, they are inapposite. The parties in those cases only challenged whether the agency adhered properly to the NEPA procedures. They did not challenge the applicability of NEPA to the contested actions. They apparently assumed that NEPA was applicable. See Hovsons, Inc. v. Secretary of thе Interior,
Amici Timber also cite Confederated Tribes and Bands of the Yakima Indian Nation v. FERC,