The Ecology Center v. Castaneda , 426 F.3d 1144 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ECOLOGY CENTER; THE LANDS 
COUNCIL,
Plaintiffs-Appellants,
v.
BOB CASTANEDA, in his official
capacity as Forest Supervisor for
the Kootenai National Forest;
BRADLEY E. POWELL, Regional
Forester of Region One of the
U.S. Forest Service; UNITED No. 04-35936
STATES FOREST SERVICE, an agency
of the U.S. Department of  D.C. No.
CV-02-00200-DWM
Agriculture,
Defendants-Appellees, OPINION
OWENS & HURST LUMBER
COMPANY, INC.; E.M. LOGGING,
INC.; COUNTY OF LINCOLN; EUREKA
AREA CHAMBER OF COMMERCE;
TOWN OF EUREKA; COUNTY OF
SANDERS; MONTANA COALITION OF
FOREST COUNTIES,
Defendants-Intervenors-
Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
September 15, 2005—Seattle, Washington
Filed October 19, 2005
14363
14364 THE ECOLOGY CENTER v. CASTANEDA
Before: Mary M. Schroeder, Chief Judge, Arthur L. Alarcón
and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Alarcón
14366 THE ECOLOGY CENTER v. CASTANEDA
COUNSEL
Thomas J. Woodbury, Missoula, Montana, for the plaintiffs-
appellants.
Mark R. Haag, United States Department of Justice, Washing-
ton, DC, for the defendants-appellees.
Julie A. Weis, Haglund Kelley Horngren Jones & Wilder
LLP, Portland, Oregon, for the defendants-intervenors-
appellees.
OPINION
ALARCÓN, Circuit Judge:
Plaintiffs/appellants The Ecology Center, Inc. and The
Lands Council (collectively, “Ecology Center”) appeal from
the order denying their motion for summary judgment on their
National Environmental Policy Act (“NEPA”) and National
Forest Management Act (“NFMA”) claims. Ecology Center
also seeks reversal of the order granting appellees/defendants’
motion to dismiss, and their Rule 60(b)(5) motion to dissolve
the injunction the district court previously had issued. Ecol-
ogy Center contends that the district court erred in denying its
motion for summary judgment and granting defendants’
motions because § 407 of the Flathead and Kootenai National
Forest Rehabilitation Act, on which the district court relied,
violates the separation of powers doctrine. We affirm because
we conclude that § 407 of the Flathead and Kootenai National
Forest Rehabilitation Act does not violate the separation of
powers doctrine.
I
On December 9, 2002, Ecology Center filed a complaint
against Bob Castaneda, Bradley Powell, and the United States
THE ECOLOGY CENTER v. CASTANEDA 14367
Forest Service (collectively, the “Forest Service”), challeng-
ing the Records of Decision the Forest Service issued under
NFMA and NEPA approving timber sales in five project areas
of the Kootenai National Forest. Ecology Center alleged that
the Forest Service failed to document the existence of a mini-
mum of 10% old growth habitat at elevations below 5,500
feet on a forest-wide basis in the Kootenai National Forest, as
required by the Kootenai Forest Plan.
Ecology Center filed a motion for summary judgment and
motion for preliminary injunction seeking to enjoin the timber
sales the Forest Service had approved. On June 30, 2003, the
district court granted Ecology Center a partial summary judg-
ment based on its claim that the Forest Service failed to verify
the minimum old growth habitat as required by the Kootenai
Forest Plan, and that its decision to approve the challenged
timber sales was “contrary to law under NEPA.” The district
court issued an injunction against continued timber sales
pending resolution of the Forest Service’s undertaking of an
administrative process allowing for review and public com-
ment on the Forest Service’s information regarding the
amount of old growth habitat in the Kootenai National Forest.
The district court held, inter alia, that, although the project
areas in which the logging was to occur had 10% old growth
habitat, the Forest Service was out of compliance with the
Kootenai Forest Plan because it failed to show that 10% old
growth habitat existed on a forest-wide basis, as required by
the Kootenai Forest Plan. The Forest Service and the interve-
nors in this case appealed from the order granting the injunc-
tion.
To satisfy the terms of the injunction, the Forest Service
published the forest-wide old growth estimates from the
administrative record and invited public comment. The Forest
Service received comments from twenty-seven individuals
and groups, including Ecology Center.
During the public comment period, Congress enacted the
Flathead and Kootenai National Forest Rehabilitation Act,
14368 THE ECOLOGY CENTER v. CASTANEDA
Department of Interior and Related Agencies Appropriations
Act of 2004, Pub. L. No. 108-108, 117 Stat. 1241, which the
President signed on November 10, 2003. Section 407 pro-
vides:
IMPLEMENTATION OF RECORDS OF
DECISION.
The Secretary of Agriculture shall publish new
information regarding forest wide estimates of old
growth from volume 103 of the administrative
record in the case captioned Ecology Center v. Cas-
taneda, CV-02-200-M-DWM (D. Mont.) for public
comment for a 30-day period. The Secretary shall
review any comments received during the comment
period and decide whether to modify the Records of
Decision (hereinafter referred to as the “ROD’s”) for
the Pinkham, White Pine, Kelsey-Beaver, Gold/
Boulder/Sullivan, and Pink Stone projects on the
Kootenai National Forest. The ROD’s, whether mod-
ified or not, shall not be deemed arbitrary and capri-
cious under the NFMA, NEPA or other applicable
law as long as each project area retains 10 percent
designated old growth below 5,500 feet elevation in
third order watersheds in which the project is
located as specified in the forest plan.
§ 407, 117 Stat. at 1320 (emphasis added). After Congress
enacted § 407, the Forest Service completed its review of the
public comments and determined that it was not necessary to
modify its Records of Decision relating to the five timber
sales.
Ecology Center filed a second motion for summary judg-
ment on November 10, 2003. It alleged that § 407 violates the
separation of powers doctrine and requested summary judg-
ment on its remaining NFMA and NEPA claims. The Forest
Service opposed Ecology Center’s motion and filed a cross-
THE ECOLOGY CENTER v. CASTANEDA 14369
motion to dismiss or, in the alternative, for summary judg-
ment, on the grounds that (1) § 407 superceded the Kootenai
Forest Plan, upon which the district court’s June 2003 order
and injunction were based, and (2) the Forest Service had sat-
isfied the requirements of § 407. The Forest Service also filed
a motion to dissolve the injunction pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure on the ground that it had
satisfied the terms of the injunction.
In an order issued on June 15, 2004, the district court held
that it lacked jurisdiction to consider the Forest Service’s
motions because of its pending appeal from the order enjoin-
ing the Forest Service’s continued timber sales. Thereafter,
this Court granted the Forest Service’s and the intervenors’
request for a voluntary dismissal of their appeal. Satisfied that
it had jurisdiction, the district court granted the Rule 60(b)
motion on August 20, 2004 and dissolved the injunction.
Relying on Robertson v. Seattle Audubon Society, 503 U.S.
429 (1992) and this Court’s decision in Stop H-3 Ass’n v.
Dole, 870 F.2d 1419, 1438 n.27 (9th Cir. 1989), the district
court also rejected Ecology Center’s argument that § 407 vio-
lates the separation of powers doctrine and held that “Con-
gress has not impermissibly directed findings . . . by the terms
of [§ 407], this Court could still, somehow, find there wasn’t
10% on an area and prevent the [timber] sales . . . Congress
has changed the underlying law.” The district court denied
Ecology Center’s motion and granted the Forest Service’s
motion to dismiss Ecology Center’s complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. It
determined that, in light of § 407, Ecology Center’s complaint
failed to state a claim upon which relief could be granted.
Ecology Center filed this timely appeal pursuant to 28 U.S.C.
§ 1291.
II
Ecology Center contends that § 407 violates the separation
of powers doctrine because it directs a rule of decision in a
14370 THE ECOLOGY CENTER v. CASTANEDA
pending case without changing the underlying substantive
law. We review the constitutionality of a statute de novo.
Gray v. First Winthrop Corp., 989 F.2d 1564, 1567 (9th Cir.
1993). “A court should invalidate a statutory provision only
for the most compelling constitutional reasons.” Id. (citing
Mistretta v. United States, 488 U.S. 361, 384 (1989)) (internal
quotations omitted). “[C]ourts are obliged to impose a saving
interpretation of an otherwise unconstitutional statute so long
as it is ‘fairly possible to interpret the statute in a manner that
renders it constitutionally valid.’ ” Gray, 989 F.2d at 1568
(quoting Communications Workers of America v. Beck, 487
U.S. 735, 762 (1988)).
[1] Where a party claims that legislation “impermissibly
interferes with the adjudicatory process” in violation of the
separation of powers doctrine, we have recognized a two-part,
disjunctive test. Gray, 989 F.2d at 1568 (Discussing United
States v. Klein, 80 U.S. 128 (1871) and “related Supreme
Court authority”). “The constitutional principle of separation
of powers is violated where (1) ‘Congress has impermissibly
directed certain findings in pending litigation, without chang-
ing any underlying law,’ or (2) ‘a challenged statute is inde-
pendently unconstitutional on other grounds.’ ” Id. (quoting
Seattle Audubon Soc. v. Robertson, 914 F.2d 1311, 1315-16
(9th Cir. 1990), rev’d, 503 U.S. 429 (1992)). Ecology Center
challenges § 407 only under the first prong of this test.
[2] Both parties rely on Robertson v. Seattle Audubon Soci-
ety, 503 U.S. 429 (1992), in support of their respective posi-
tions concerning § 407. In Robertson, the Supreme Court
analyzed whether § 318 of the Department of the Interior and
Related Agencies Appropriations Act, 103 stat. 745, popularly
known as the Northwest Timber Compromise, violated the
separation of powers doctrine. 503 U.S. at 435-36. Congress
enacted § 318 in response to ongoing litigation regarding the
United States Forest Service’s prohibition of timber harvest-
ing on certain designated areas within 13 national forests in
Oregon and Washington. Id. at 432.
 THE ECOLOGY CENTER v. CASTANEDA 14371
The disputed language of § 318 appeared at subsection
(b)(6)(A), which provided:
The Congress hereby determines and directs that
management of areas according to subsections (b)(3)
and (b)(5) of this section on the thirteen national for-
ests in Oregon and Washington and Bureau of Land
Management lands in western Oregon known to con-
tain northern spotted owls is adequate consideration
for the purpose of meeting the statutory requirements
that are the basis for the consolidated cases cap-
tioned Seattle Audubon Society et al., v. F. Dale
Robertson, Civil No. 89-160 and Washington Con-
tract Loggers Assoc. et. al., v. F. Dale Robertson,
Civil No. 89-99 (order granting preliminary injunc-
tion) and the case Portland Audubon Society et al.,
v. Manuel Lujan, Jr., Civil No. 87-1160-FR.
Id. at 434-35. In analyzing § 318, the Supreme Court
explained that “[b]efore subsection (b)(6)(A) was enacted, the
original claims would fail only if the challenged harvesting
violated none of the five old provisions. Under subsection
(b)(6)(A), by contrast, those same claims would fail if the har-
vesting violated neither of the two new provisions [subsec-
tions (b)(3) and (b)(5)].” Id. at 438.
[3] The Supreme Court found nothing in subsection
(b)(6)(A) that directed any particular findings of fact or appli-
cation of old or new law to fact. Id. “Section 318 did not
instruct the courts whether any particular timber sales would
violate subsections (b)(3) and (b)(5) . . . .” Id. at 439. Accord-
ingly, the Supreme Court held that § 318 was not unconstitu-
tional because subsection (b)(6)(A) replaced the legal
standard underlying the two original challenges with those set
forth in subsections (b)(3) and (b)(5), without directing partic-
ular applications under either the old or the new standards. Id.
at 437.
14372 THE ECOLOGY CENTER v. CASTANEDA
[4] Section 407 does not impermissibly direct findings
without changing underlying law. Before § 407 was enacted,
the Kootenai Forest Plan required that “[a]t any time, a mini-
mum of 10% of the Kootenai National Forest land base below
5500 feet in elevation will be in old-growth timber condition,
providing habitat for those wildlife species dependent on old-
growth timber for their needs.” (SER 11 at ¶ 41.) The district
court determined that this standard required a minimum of
10% old growth habitat on a forest-wide basis below 5,500
feet prior to implementing timber sales.
[5] Under § 407, by contrast, timber sales can be imple-
mented “as long as each project area retains 10 percent desig-
nated old growth below 5,500 feet.” § 407, 117 Stat. at 1320
(emphasis added). Just as the legislation in Robertson
changed the underlying law by declaring that the statutory
requirements for harvesting are met if subsections (b)(3) and
(b)(5) of § 318 are complied with, § 407 changed the underly-
ing law by declaring that the “NFMA, NEPA or other applica-
ble law” are met so long as 10% old growth habitat exists in
“in each project area,” rather than on a forest-wide basis as
previously required.
[6] Nothing in § 407 directs particular findings of fact or
the application of old or new law to fact. Section 407 does not
direct that the district court find that 10% old growth exists,
but instead declares that the statutory requirements for timber
sales are met if there exists 10% old growth in the areas pro-
jected for logging. Under § 407, it is still the district court that
determines whether there is 10% old growth on the project
areas at issue.
Ecology Center argues that Robertson is inapplicable
because the statute under review in that matter was not limited
to that litigation, but instead applied prospectively to thirteen
national forests. Ecology Center argues that because § 407 is
limited solely to the timber sales at issue in this case, “[n]o
clearer case could be made that Congress intended to deter-
THE ECOLOGY CENTER v. CASTANEDA 14373
mine the outcome of a particular piece of litigation . . . than
in the case of this particular rider.” Appellant’s Opening Br.
at 14. We disagree.
[7] In Gray, we held that “it is of no constitutional conse-
quence that [legislation] affects, or is even directed at, a spe-
cific judicial ruling so long as the legislation modifies the
law.” 989 F.2d at 1569-70. “[N]o authority forbid[s] Congress
from exempting a project which is the subject of pending liti-
gation from the requirements of the statute which the project
is alleged to violate.” Stop H-3 Ass’n, 870 F.2d at 1438, n.27.
“Congress clearly has the power to amend a statute and to
make that change applicable to pending cases.” Gray, 989
F.2d at 1570. Indeed, in Gray, this Court recognized that
Robertson “indicates a high degree of judicial tolerance for an
act of Congress that is intended to affect litigation so long as
it changes the underlying substantive law in any detectable
way.” Id. at 1569-70.
[8] Thus, the fact that Congress directed § 407 at a specific
case pending before a district court does not render it an abuse
of the separation of powers because it modified existing law
relating to the old growth standards. See Cook Inlet Treaty
Tribes v. Shalala, 166 F.3d 986, 991 (9th Cir. 1999) (legisla-
tion enacted by Congress while appeal was pending, “even if
directed at this litigation, does not violate the separation of
powers doctrine because it changes the underlying substantive
law”); see also Robertson, 503 U.S. at 440 (rejecting respon-
dents’ contention that § 318 directed results under old law
because it named two pending cases, the Court held that “[t]o
the extent that subsection (b)(6)(A) affected the adjudication
of the cases, it did so by effectively modifying the provisions
at issue in those cases”).
Ecology Center also maintains that § 407 clearly directed
that the district court make factual findings. Nothing in the
language of § 407 directs the district court to find that the req-
uisite 10% old growth habitat exists in the areas projected for
14374 THE ECOLOGY CENTER v. CASTANEDA
timber sales. The record reflects that the district court found
that the project areas had the requisite 10% old growth habitat
before § 407 was enacted. Indeed, in denying Ecology Cen-
ter’s motion for summary judgment following the enactment
of § 407, the district court noted its prior finding that the proj-
ect areas appeared to have 10% old growth habitat.
CONCLUSION
[9] Because § 407 changed the underlying law relating the
old growth standards for timber sales in the Kootenai National
Forest, and did not impermissibly direct findings, the statute
does not violate the separation of powers doctrine. The district
court did not err in dissolving the injunction.
AFFIRMED.