Nos. 95-35052, 95-35214 and 95-35215United States Court of Appeals, Ninth Circuit.Argued and Submitted December 4, 1995
Decided April 10, 1996
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Stephen M. Tuitt, Pepper, Hamilton Scheetz, Washington, D.C., and John S. Karpinski, Vancouver, Washington, for plaintiffs-appellants-cross-appellees Native Forest Council.
Peggy Hennessy, Reeves, Kahn Eder, Portland, Oregon, for plaintiffs-appellants-cross-appellees Forest Conservation Council and Save the West.
Mark C. Rutzick, Mark C. Rutzick Law Firm, Portland, Oregon, for defendants-intervenors-appellants Northwest Forest Resource Council.
David C. Shilton, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.
Appeals from the United States District Court for the Western District of Washington.
Before: GOODWIN, SCHROEDER and PREGERSON, Circuit Judges.
[1] OPINION
PER CURIAM:
I.
[3] In appeals nos. 95-35052 and 95-35214, Native Forest Council, Forest Conservation Council and Save the West (“the environmental plaintiffs”) appeal the district court’s grant of summary judgment upholding the United States Forest Service and Bureau of Land Management’s (“the federal defendants”) Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within Range of the Northern Spotted Owl (“ROD”), adopted April 13, 1994. The district court’s opinion is published at Seattle Audubon Society v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) (“SAS”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the district court.
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the habitat of the northern spotted owl, President Clinton in April 1993 established the Forest Ecosystem Management Assessment Team (“FEMAT”) to examine options and make recommendations to the Secretaries of Agriculture and Interior in aid of their joint development of a forest management plan to cover federal lands in the Pacific Northwest. After reviewing 48 possible strategies, FEMAT narrowed the field to ten alternatives and assessed each in a single environmental impact statement (“EIS”) prepared jointly by the Forest Service and the Bureau of Land Management (“BLM”). The Secretaries of Agriculture and Interior adopted Alternative 9 on April 13, 1994. These challenges to the legality of that decision followed.
[6] [1] The environmental plaintiffs contend that the district court erred in concluding that the federal defendants considered a reasonable range of alternatives for managing old growth owl habitat. They further contend that the federal defendants failed to comply with the viability regulation of the National Forest Management Act because the selected alternative provides for only an 80% likelihood that listed species will continue to be viable after implementation of the selected alternative, and the resulting 20% likelihood of extinction is impermissible under the regulation. 16 U.S.C. § 1604(g)(3)(B); 36 C.F.R. § 219.19. The environmental plaintiffs further contend that the district court erred in holding that the federal defendants considered adequately the cumulative environmental impacts associated with their preparation of the Environmental Impact Statement and selection of Alternative 9. SeeNational Forest Management Act (“NFMA”), 16 U.S.C. § 1604 (f)(5); National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.
These contentions fail for the reasons set forth below. [7] [2] We first deal with the environmental plaintiffs’ contention that the federal defendants failed to consider adequately a “no action” alternative, thereby failing to consider a reasonable range of alternatives in violation of NEPA. See 40 C.F.R. § 1502.14(d). Our review of the record leads us to conclude that the federal defendants fully evaluated a reasonable range of alternatives before making their final decision. An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives. See Resources Limited, Inc. v. Robertson, 8 F.3d 1394, 1401-02 (9th Cir. 1993); Headwaters v. Bureau of Land Management, 914 F.2d 1174, 1180-81 (9th Cir. 1990). Here, the federal defendants did consider a no harvest alternative as part of their preliminary discussion, but abandoned this alternative as inconsistent with their need to find a balance between competing uses. Moreover, the federal defendants’ consideration of Alternative 1, which would have protected all old growth timber (less some salvage operations) provided a reasonable point of comparison for the other nine alternatives. Accordingly, the analysis performed by the federal defendants was adequate. [8] [3] There is similarly little or no support for the environmental plaintiffs’ contention that the selected alternative violates the applicable viability standards. The district court correctly explained that the selection of an alternative with a higher likelihood of viability would preclude any multiple use compromises contrary to the overall mandate of the NFMA. See SAS, 871 F. Supp. at 1315-16; see also 16 U.S.C. § 1604 (g)(3)(B) (diversity is to be addressed in light of “overall multiple-use objectives”); 36 C.F.R. §§ 219.27(a)(6) (habitat maintained and improved “to the degree consistent with multiple-use objectives”); 219.26 (provide for diversity consistent with multiple-use objectives); 219.27(a)(5) (forest plans should “maintain diversity of plant and animal communities to meet overall multiple-use objectives”). Here, the record demonstrates that the federal defendants considered the viability of plant and animal populations based on the current state of scientific knowledge. Because of the inherent flexibility of the NFMA, and because there is no showing that the federal defendants overlooked any relevant factors or made any clear errors of judgment, we conclude that their interpretation and application of the NFMA’s viability regulations was reasonable. See Batterson v. Francis, 432 U.S. 416, 425-26
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(1977) (the Secretary’s interpretation of a statutory term is entitled to substantial deference).
[9] [4] Finally, the arguments advanced by the environmental plaintiffs concerning alleged deficiencies in the cumulative impact analysis fail because the United States Supreme Court has reaffirmed our court’s long held position that the Endangered Species Act protects listed species from harm caused by habitat modification or destruction Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, ___ U.S. ___, 115 S.Ct. 2047 (1995); Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1108 (9th Cir. 1988). The environmental plaintiffs insist on reading Justice O’Connor’s concurring opinion in Sweet Home as an invitation to private landowners to manage their land without regard to any obligation to avoid modifications which would harm listed species. Such a reading, however, ignores the fact that five Justices affirmed Palila in all respects. Therefore, contrary to plaintiffs’ assertions, the cumulative impact analysis reasonably assumes that non-federal land will be managed to avoid harm to threatened species. We affirm the judgment of the district court in appeals nos. 95-35052 and 95-35214.II.
[10] In appeal nos. 95-35215, the Northwest Forest Resource Council (“the Council”) appeals the district court’s grant of summary judgment in favor of the federal defendants on their cross-claims for declaratory relief. The district court’s order granting leave to the federal defendants to amend their answer to assert cross-claims against the Council is published at Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1286
(W.D. Wash. Aug. 5, 1994); the district court’s opinion granting summary judgment is published at Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994). We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
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States v. COM. of PA. Dept. of Envir. Resources, 923 F.2d 1071, 1074-75 (3rd Cir. 1991). There, the State of Pennsylvania was proceeding in state court against the United States Navy seeking compliance with state environmental laws. The Navy raised sovereign immunity as a defense in the state action and simultaneously filed a declaratory judgment action in the district court. The issue on appeal was not whether the district court had jurisdiction over the Navy’s action, but whether it abused its discretion by declining to exercise it. The Third Circuit held that the district court should have exercised jurisdiction under the Declaratory Judgment Act to resolve the dispute. Id. at 1079. Here too, in the context of an ongoing lawsuit and in the face of duplicative legal challenges brought in a different forum, the United States simply cross-claimed within the ongoing proceeding for a judgment affirming the defenses it would otherwise be forced to offer for a second time in the duplicative action.
[14] [7] Nothing in the Act bars a federal agency from seeking declaratory relief. Instead, the question is whether the district court would have had jurisdiction to hear a coercive action brought by the declaratory judgment defendant. NBA, 815 F.2d. at 566. The answer here is obviously yes. The Council has been a long time intervenor in the underlying action, vigorous in its opposition to the successive forest management plans. Although never dismissed from the action underlying these appeals, the Council nevertheless filed additional actions in the District of Columbia challenging the 1994 forest management plan. Thus, not only could the Council have filed a coercive action in the district court against the Secretaries of Agriculture and Interior, it actually did. [15] [8] Here, the district court was presented with a substantial controversy arising under federal law between parties with adverse interests surrounding a plan designed to bring some much needed coherence to the management of federal forests in the Pacific Northwest. This controversy presented concrete legal questions in the context of the federal defendants’ real and reasonable apprehension that unless the Council’s claims were litigated within a single proceeding, they faced the likelihood of confusion caused by differing judgments or, at least, the uncertainty and expense associated with proceeding later in another forum. In fact, both Judge Dwyer in the Western District of Washington and Judge Jackson in the District of Columbia specifically noted that the actions proceeding in both forums were substantially similar, and although unable to transfer venue in the cases arising from the Oregon dispute, Judge Jackson stayed proceedings in his court to “prevent a duplicative waste of judicial resources and prevent the award of potentially inconsistent relief by separate courts.” SAS, 871 F. Supp at 1288; Northwest Forest Resource Council v. Thomas, CV-94-1032 (TPJ) (D.C.C. June 30, 1994) (order transferring action to W.D. Wash.) Northwest Forest Resource Council v. Dombeck, CV-94-1031 (TPJ) (D.C.C. June 30, 1994) (order staying proceedings). [16] [9] Because the resolution of the Council’s claims against the federal defendants in a single action was both possible and desirable, the district court did not abuse its discretion by exercising jurisdiction to grant relief. We therefore affirm the judgment of the district court in the Council’s appeal no. 95-35215. [17] AFFIRMED.