Big Hole Ranchers Ass'n v. US Forest Service

• Decision Date: 26 April 1988
• Docket Number: No. CV-86-102-BU-PGH.,CV-86-102-BU-PGH.
• Citation: 686 F. Supp. 256
• Court: U.S. District Court — District of Montana
• Parties: BIG HOLE RANCHERS ASSOCIATION, INC., a non-profit corporation, Plaintiff, v. UNITED STATES FOREST SERVICE; Ronald C. Prichard, Forest Supervisor, Beaverhead National Forest; and Joe Spehar, District Ranger, Wisdom Ranger District, Defendants.

686 F. Supp. 256

BIG HOLE RANCHERS ASSOCIATION, INC., a non-profit corporation, Plaintiff, v. UNITED STATES FOREST SERVICE; Ronald C. Prichard, Forest Supervisor, Beaverhead National Forest; and Joe Spehar, District Ranger, Wisdom Ranger District, Defendants.

No. CV-86-102-BU-PGH.

United States District Court, D. Montana, Butte Division.

April 26, 1988.

James H. Goetz, Goetz, Madden & Dunn, P.C., Bozeman, Mont., for plaintiff.

Robert J. Brooks, Asst. U.S. Atty., Gary L. Walton, Poore, Roth & Robinson, Butte, Mont., Lynn A. Johnson, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for defendants.

MEMORANDUM AND ORDER

HATFIELD, District Judge.

Plaintiff, Big Hole Ranchers Association, Inc. ("Big Hole Ranchers"), instituted the above-entitled action against the United States Forest Service seeking, inter alia, to enjoin any road building or logging activities in certain portions of the Beaverhead National Forest. Thereafter, Stoltze Land and Lumber Company, Inc. ("Stoltze") intervened and was joined as a party defendant. This matter is presently before the court on the various defendants' motions for summary judgment. After careful consideration the court is prepared to rule.

I. BACKGROUND

The plaintiff herein is a non-profit corporation consisting of residents, landowners and ranchers residing in the Big Hole Valley in Beaverhead County, Montana. Plaintiff instituted this action challenging two timber sales (Saginaw Creek and Steel-Fox)¹ and one proposed timber sale (Doolittle), all of which are on National Forest lands within the Beaverhead National Forest. Plaintiff and its individual members assert that if the road-building and logging activities associated with the timber sales are allowed to continue, they will suffer adverse aesthetic, environmental and economic damages.

On July 8, 1986, this court entered an order denying plaintiff's motion for a preliminary injunction enjoining the Forest Service from implementing the three timber sales and Stoltze from building any roads or removing any timber pending a trial on the merits. Plaintiff did not appeal that order, and timbering activities have since proceeded.

II. HISTORY

In 1978, after public notice and an opportunity for the public to be heard, the government implemented the 1978 Beaverhead National Forest Land Management Plan ("1978 Plan"), which provided longrange management guidance for all resources and lands of the Beaverhead National Forest, including roadless lands. The 1978 Plan was accompanied by a Final Environmental Impact Statement ("FEIS") analyzing the wilderness attributes of the roadless areas therein.

Prior to the adoption of the 1978 Plan and in conjunction with the planning process, the Forest Service initiated a nationwide study, the Roadless Area Review Evaluation ("RARE II"), to evaluate the wilderness potential of roadless areas on National Forest System lands. The three timber sale areas at issue herein were initially included in the 1977 RARE II inventory.

However, in April, 1978, the three timber sale areas were removed from the RARE II inventory pursuant to the 1978 Plan and FEIS. The Forest Service gave the public notice of this action. No challenge or appeal, here in court or administratively, was made regarding the Forest Service's action. The effect of this action allowed the three areas to be managed on a multiple use-sustained yield basis, which includes timber management.

As early as 1983, individual members of the plaintiff organization were aware the Forest Service was contemplating timber sales within the Doolittle, Steel-Fox and Saginaw Creek areas of the Beaverhead National Forest. Public meetings during the planning stage of these sales were held. Individual members of the Big Hole Ranchers attended at least one public meeting regarding both the Steel-Fox and Saginaw Creek sales.

Pursuant to the 1978 Plan and EIS, environmental assessments were prepared for each of the timber sale areas. All three environmental assessments state that they were developed in compliance with the land use designation and management direction of the 1978 Plan.

On May 26, 1983, the Forest Service prepared an Environment Assessment ("EA") for the Steel-Fox timber sale, and made a Finding of No Significant Impact ("FONSI"). No administrative challenge was made at that time. Thereafter, in July, 1983, a contract was let for approximately 16 miles of road construction and related work to provide access to the Steel-Fox timber sale area. That road was completed in August, 1985.

In July, 1985, the Steel-Fox timber sale contract was awarded to Stoltze. No administrative appeal of either the timber sale or the approval of the EA was filed by anyone, including the plaintiff organization and its individual members. The first formal action taken by the plaintiff occurred on or about May 28, 1986, when it requested the Forest Service to stay all further action upon the three timber sale contracts.

Following the opportunity for public comment, environmental assessments were also prepared and approved for the Saginaw Creek and Doolittle timber sales. The Forest Service made a FONSI as to both sale areas. Neither the plaintiff nor any of its individual members made an administrative challenge.

In 1986, a new land resource management plan for the Beaverhead National Forest went into effect, superseding the 1978 Plan. The 1986 Plan and accompanying EIS is currently under administrative appeal by various parties, including the plaintiff organization. The Doolittle sale area was reevaluated in the 1986 Plan and was again allocated to non-wilderness management. However, in light of plaintiff's appeal of the 1986 Plan, the Doolittle sale has been stayed pending resolution of that appeal.

III. DISCUSSION

A. Montana Wilderness Study Act ("MWSA")

Count One of plaintiff's complaint alleges the defendants violated the MWSA, Senate Bill 393, Public Law 95-150, by allowing road construction and timber harvesting to occur in the Doolittle and Steel-Fox sale areas, which are contiguous to the West Pioneer Wilderness Study Area ("Study Area").² Plaintiff asserts that since the sale areas constitute roadless areas of wilderness character contiguous to the study area, they may not be developed for non-wilderness purposes without approval of Congress and the President of the United States.

In support, plaintiff cites Parker v. United States, 448 F.2d 793 (10th Cir.1971), wherein the court held that the Wilderness Act of 1964, 16 U.S.C. § 1132(b), authorized the President and Congress to add contiguous areas of predominantly wilderness value to existing primitive areas for final wilderness designation. Title 16 U.S.C. § 1132(b) provides:

Nothing herein contained shall limit the President in proposing as part of his recommendations to Congress the alteration of existing boundaries of primitive areas or recommending the addition of any contiguous area of national forest lands predominantly of wilderness value.

Section 3(c) of the MWSA similarly provides:

Nothing herein contained shall (1) limit the President in proposing, as part of his recommendation to Congress, the alteration of existing boundaries of any wilderness study area or recommending the addition to any such area of any contiguous area predominantly of wilderness value....

Upon review, however, the court is compelled to conclude Parker is inapplicable to the instant action. Prior to the construction of any capital investment roads or the harvesting of timber within the Doolittle or Steel-Fox sale areas, the Forest Service, pursuant to the MWSA, conducted a study of the West Pioneer Study Area and submitted a report to the President for his recommendation to Congress. In light of the fact that the study was completed prior to the occurrence of any non-wilderness activities within the contiguous areas, the Parker decision has no application. See, National Forest Preservation Group v. Butz, 343 F.Supp. 696, 702 (D.Mont.1972), reversed on other grounds, 485 F.2d 408 (9th Cir.1973).

Furthermore, the Parker decision only applies to roadless areas contiguous to areas designated as primitive as of September 3, 1964. See, Wilson v. Block, 708 F.2d 735 (D.C.Cir.1983); see also, National Forest Preservation Group v. Butz, 343 F.Supp. 696 (D.Mont.1972), rev'd. on other grounds, 485 F.2d 408 (9th Cir.1973). The areas at issue in the present action have never been contiguous to a Forest Service pre-Wilderness Act primitive area.

Finally, the MWSA did not require areas contiguous to the West Pioneer Study Area to be studied. Section 3(a) of the MWSA provides:

Except as otherwise provided by this section, and subject to existing private rights, the wilderness study areas designated by this Act shall, until Congress determines otherwise be administered by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System. (Emphasis added).

No mention is made of including contiguous areas. If Congress had intended contiguous areas to be included within the study area and maintained as predominantly wilderness, Congress would have expressly set that forth.

Accordingly, the court concludes defendants' motion for summary judgment be, and the same hereby is, GRANTED with respect to Count One of plaintiff's complaint.

B. National Environmental Policy Act ("NEPA")

Count Two of plaintiff's complaint alleges the decision of the Forest Service to proceed with the subject timber sales, coupled with the related construction of capital investment roads, violated NEPA in that such actions constituted major federal actions which significantly affect the quality of human environment and, therefore, an EIS was required pursuant to 42 U.S.C. § 4332(2)(c). Furthermore, Count Three of plaintiff's complaint alleges the challenged road construction and timber sales are violative of NEPA...