Thomas

Oregon Natural Resources Council v. Thomas

Good Law
92 F.3d 792·1996 WL 426852
United States Court of Appeals for the Ninth CircuitJuly 31, 1996No. 95-36256California3,800 words

Opinion

Lead Opinion

Kozinski, J.

Opinion by Judge KOZINSKI; Concurrence by Judge REINHARDT.

We consider whether review of certain timber sales is available under the Administrative Procedure Act.

I

Plaintiffs Oregon Natural Resources Council and Umpqua Watersheds, Inc. are environmental organizations trying to block four sales of timber by defendant Jack Ward Thomas, Chief of the United States Forest Service. 1 Plaintiffs’ challenge to two of the sales, Watchdog and Roughneck, has effectively been resolved against them by our recent decision in Northwest Forest Resource Council v. Glickman, 82 F.Bd 825 (9th Cir.1996). 2 We therefore consider in detail only plaintiffs’ claims against the two remaining sales, Pinestrip and Snog. Defendant-intervenor Huffman & Wright Logging Co., Inc. was the high bidder on the Snog sale. Defendant-intervenor Douglas Timber Operators, Inc. is a forest products trade association representing the interests of its members and, in particular, of Boise Cascade Co., the high bidder on the Pinestrip sale.

The Pinestrip and Snog sales are both located in the Upper North Umpqua River Basin in southwestern Oregon, an area “famous for its stunning scenery and its clear, jade-green rushing…

Concurring Opinion

Reinhardt, J.

concurring:

I concur in the result. However, I see no reason to attempt to decide the abstract question whether there can ever be a violation of the APA in the absence of an independent statute that supports the violation. Here, the alleged APA violation is rooted in the environmental concerns that Congress has barred from consideration by the Rescis-sions Act and constitutes nothing more than an effort to assert prohibited environmental claims in another form. Ingenious as the plaintiffs’ argument is, we have no choice but *800 to reject it. That is all that we need, or should, say or do in this case.

. As to the challenges to the Watchdog and Roughneck sales, which the majority concludes are resolved adversely to appellants by our decision in Northwest Forest Resource Council v. Glickman, I prefer the government's analysis: Those sales are simply not subject to the Act.

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