Wetsel-Oviatt Lumber Co. v. United States

43 Fed. Cl. 748, 1999 U.S. Claims LEXIS 119, 1999 WL 357604
CourtUnited States Court of Federal Claims
DecidedMay 25, 1999
DocketNo. 94-411C
StatusPublished
Cited by9 cases

This text of 43 Fed. Cl. 748 (Wetsel-Oviatt Lumber Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wetsel-Oviatt Lumber Co. v. United States, 43 Fed. Cl. 748, 1999 U.S. Claims LEXIS 119, 1999 WL 357604 (uscfc 1999).

Opinion

OPINION

MARGOLIS, Judge.

This pre-award bid protest action, in which the court has already held a trial and issued an opinion, is currently before the court on Plaintiffs Motion for Judgment and Comments on Defendant’s Response to the Court’s Order of February 6, 1998 (“Plaintiffs Motion for Judgment”). Plaintiff contends that it is entitled to entry of judgment in its favor with an award of costs because the court’s February 6, 1998 Order enjoined defendant from canceling the Bald Mountain timber sale, as plaintiff requested. Plaintiff also contends that the alternative ground for canceling the Bald Mountain timber sale proffered by defendant in the Forest Service’s response to the court’s February 6, 1998 Order (“Forest Service Response”) is inappropriate at this time. After careful consideration of the parties’ written and oral arguments, the court finds that plaintiff is entitled to entry of judgment in its favor with an award of costs. Because the comments section of plaintiffs motion does not constitute a formal protest of the Forest Service’s current decision to cancel the Bald Mountain timber sale, the court refrains from addressing that issue at this time.

FACTS

A detailed recitation of the facts in this case is presented in the court’s February 6, 1998 opinion, Wetsel-Oviatt Lumber Co. v. United States, 40 Fed.Cl. 557 (1998), and is summarized and supplemented here only as necessary to address the issues presently before the court.

On November 2, 1992, the Forest Service conducted an oral auction for the sale of an estimated 4,380 thousand board feet (“MBF”) of timber known as the Bald Mountain timber sale, located on the Eldorado National Forest in California. The timber sale was planned and offered to the public pursuant to the requirements of the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1601 et seq., National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and Multiple Use Sustained Yield Act of 1960,16 U.S.C. §§ 528-531. Plaintiff participated in the oral auction and was determined by defendant to be the high bidder. Notwithstanding plaintiffs high bid, defendant neither awarded the Bald Mountain timber sale to plaintiff, nor rejected plaintiffs bid, on November 2, 1992.

At the time the Bald Mountain timber sale was planned, the Forest Service’s management strategy for the California Spotted Owl centered on the designation and preservation of Spotted Owl Habitat Areas (“SOHAs”). In July 1992, just prior to the oral auction of the Bald Mountain timber sale, the Forest Service issued The California Spotted Owl: A Technical Assessment of Its Current Status (“CASPO Report”), which concluded that the existing SOHA management strategy would likely lead to the extinction of the California Spotted Owl, and recommended that a new, long-term strategy be developed. Until such a new, long-term strategy could be developed, however, the CASPO Report recommended the implementation of interim guidelines to preclude any actions that would “foreclose options for whatever long-term management scenario may be adopted for the owl at the end of the interim period.” CASPO Report at 20.

The CASPO Report set forth a harvest prescription to be followed in the interim period. Specifically, the CASPO Report recommendations proposed the creation of 300-acre Protected Activity Centers (“PACs”) around all currently known spotted owl sites, within which no stand-altering activities would be permitted. Outside of the PACs, but within timber strata1 preferred or utilized for nesting by spotted owls, no live trees of 30 inches diameter at breast height (“dbh”) or larger would be removed and a canopy closure of at least 40% would be maintained in certain timber stands. The CASPO Report recommendations represented a shift from the existing [750]*750forest management theory, based on analysis of individual timber units within the national forest, to “ecosystem management,” based on analysis of multiple ecosystems within the entire national forest as a whole. Whereas the existing theory, called even-aged management, was characterized by clear-cutting the various units of the forest in rotation, such that by the time the last unit was cut the first unit had regrown, the CASPO interim guidelines emphasized analyzing the entire forest as a whole and cutting timber selectively within units. On January 13, 1993, the Forest Service adopted the CASPO Report recommendations as the guidelines to be followed during the interim period and amended the existing Land and Resource Management Plan (“LRMP”) for the Eldorado National Forest to incorporate the interim guidelines.

During this same general period, in the Fall of 1992, the Forest Service was advised by various individuals and environmental groups that new information and changed circumstances required the Forest Service to reconsider whether the Bald Mountain timber sale still complied with NEPA, NFMA, Forest Service regulations, and the Eldorado National Forest LRMP. Based on this concern, and in light of the new information presented in the CASPO Report and the new management direction in the interim guidelines, the Forest Service decided in March of 1993 to withhold award of the Bald Mountain timber sale to plaintiff while it conducted further environmental review of the sale. After an initial review suggested that the Environmental Assessment supporting the Bald Mountain timber sale needed to be revised and further analyzed pursuant to NEPA, the Forest Service commissioned a long-term interdisciplinary team to further evaluate the effects of the timber sale on wildlife, vegetation, and water quality.

The Forest Service’s broad-based review of the Bald Mountain timber sale comprised primarily three analyses: a biological evaluation of the potential effects on forest strata due to timber sales on the Eldorado National Forest (“Landscape Analysis”); a biological evaluation of the potential effects on the Pacific Fisher2 due to timber sales on the Eldorado National Forest (“Fisher BE”); and a biological evaluation of the cumulative effects on the California Spotted Owl due to timber sales on the Eldorado National Forest (“Owl BE”).

The Owl BE is particularly relevant to the current issue before the court. Although the Forest Service did not apply the CASPO harvest prescription to the 31 Eldorado National Forest timber sales, it did rely on the Owl BE to determine if the timber sales would maintain future management options for the spotted owl, as directed by the CAS-PO interim guidelines. To measure the impact of the sales on the future management options, Forest Service biologists developed the disturbance index methodology. The disturbance index is a ratio representing the California Spotted Owl habitat removed from an owl Protected Activity Center by a timber sale (weighted for its value to the owl) to the California Spotted Owl habitat available at an owl Protected Activity Center (weighted for its value to the owl). Forest Service biologists reasoned that any timber sale that removed greater than 5% of the future management options for the spotted owl (i.e., had a disturbance index of greater than 5%) was not in accord with the CASPO interim guidelines.

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Bluebook (online)
43 Fed. Cl. 748, 1999 U.S. Claims LEXIS 119, 1999 WL 357604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wetsel-oviatt-lumber-co-v-united-states-uscfc-1999.