Klickitat County v. Columbia River Gorge Com'n, CV-91-3027-AAM.

• Decision Date: 14 June 1991
• Docket Number: No. CV-91-3027-AAM.,CV-91-3027-AAM.
• Citation: 770 F. Supp. 1419
• Parties: KLICKITAT COUNTY, a municipal corporation; City of Washougal, a municipal corporation; SDS Lumber Co., a Washington corporation; Klickitat County Livestock Growers Association, a Washington unincorporated association; Ellett Construction Co., an Oregon corporation; and Dan Gunkel, an individual, Plaintiffs, v. COLUMBIA RIVER GORGE COMMISSION, an agency of the States of Washington and Oregon; and U.S. Forest Service, an agency of the U.S. Department of Agriculture, Defendants, Friends of the Columbia Gorge, Defendant-Intervenor.
• Court: U.S. District Court — District of Washington

770 F. Supp. 1419

KLICKITAT COUNTY, a municipal corporation; City of Washougal, a municipal corporation; SDS Lumber Co., a Washington corporation; Klickitat County Livestock Growers Association, a Washington unincorporated association; Ellett Construction Co., an Oregon corporation; and Dan Gunkel, an individual, Plaintiffs, v. COLUMBIA RIVER GORGE COMMISSION, an agency of the States of Washington and Oregon; and U.S. Forest Service, an agency of the U.S. Department of Agriculture, Defendants, Friends of the Columbia Gorge, Defendant-Intervenor.

No. CV-91-3027-AAM.

United States District Court, E.D. Washington.

June 14, 1991.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael E. Haglund, Haglund & Kirtley, Portland, Or., Ted A. Roy, Roy & Pell, Yakima, Wash., for plaintiffs.

Lawrence Watters, Asst. Atty. Gen., Sp. Litigation Div., Olympia, Wash., for defendant Columbia River Gorge Com'n.

Stuart Schoenburg, Dept. of Justice, Environmental & Natural Resources Div., Washington, D.C., Jocelyn Somers, Office of General Counsel, U.S. Dept. of Agr., Portland, Or., for defendant U.S. Forest Service.

Gary K. Kahn, Reeves, Kahn & Eder, Portland, Or., for defendant-intervenor Friends of the Columbia Gorge.

ORDER DENYING PERMANENT INJUNCTIVE RELIEF; DISMISSING CLAIMS AGAINST THE GORGE COMMISSION AND U.S. FOREST SERVICE AND THE SECRETARY OF AGRICULTURE

McDONALD, District Judge.

On Thursday, June 5, 1991, a hearing on the merits was held in the above captioned matter to determine whether permanent injunctive relief would be granted. Michael Haglund appeared on behalf of the plaintiffs. Lawrence Watters, Assistant Attorney General for the State of Washington was present, representing the Columbia River Gorge Commission. Stuart Schoenburg, Department of Justice, Environment and Natural Resources Division and Jocelyn Somers, Office of General Counsel, United States Department of Agriculture were present on behalf of the Forest Service.

I FACTS AND PROCEDURAL CONTEXT

This action is brought under the Columbia River Gorge National Scenic Area Act, 16 U.S.C. § 544 et seq. The Act provides a system of land use management for areas designated part of the "National Scenic Area". The Scenic Area is divided into three areas: 1) Exempt urban areas, 2) General Management Areas (GMAs), and 3) Special Management Areas (SMAs). The Special Management Areas are administered by the Forest Service. The General Management Areas are administered by the Columbia River Gorge Commission (Commission), a bi-state compact between Oregon and Washington.

The Commission is responsible for developing a draft management plan for the General Management Areas, while the Forest Service is responsible for developing a draft management plan for the Special Management Areas. The Act provides for studies and public comment in the development of these plans. These plans are then incorporated into one final plan for the National Scenic Area. The Commission adopts the final plan. The Secretary of Agriculture may veto the plan at which point the Commission may revise the plan or override the Secretary's veto. Once the final plan is adopted, counties within the Scenic Areas must adopt land use ordinances consistent with the management plan.

At the time of the hearing on the preliminary injunction, both the Forest Service and the Commission had developed draft management plans. Neither draft plan included an Environmental Impact Statement (EIS) as required for major federal actions significantly effecting the environment under the Washington State Environmental Policy Act (SEPA), The National Environmental Policy Act (NEPA) and for the preparation of a forest plan under the National Forest Management Act (NFMA).¹

The plaintiffs in this action, Klickitat County, City of Washougal, SDS Lumber Co., Ellet construction, Dan Gunkel, and the Klickitat County Livestock Growers Association are seeking an injunction against both the Forest Service and the Commission to enjoin them from adopting a final management plan under their current procedures and to require them to fulfill the requirements of SEPA/NEPA/NFMA in the development of this plan. Specifically, the plaintiffs seek to compel the Commission to prepare an Environmental Impact Statement and the Forest Service to comply with certain planning regulations of the National Forest Management Act (36 CFR 219.12(f) and (g)) and engage in a discussion of alternatives under 42 U.S.C. § 4332(2)(E) prior to adopting a final plan. The plaintiffs' principal objections are that the agencies in developing their draft management plans have not taken into account economic and social impacts of the plan or considered a range of alternatives. The plaintiffs are suing under the Citizens Suit provision of the National Scenic Area Act, 16 U.S.C. § 544m(b)(2)(A) for the Commission's and Forest Service's failure to perform non discretionary duties to comply with SEPA/NEPA/NFMA in developing their draft management plans.²

On May 2, 1991, the court granted the plaintiffs' motion for a preliminary injunction and entered an order enjoining the Commission and Forest Service from continuing their current planning procedures until the hearing on the merits in June.³

II

PRELIMINARY MOTIONS

Overlength Briefs

All parties' motions to file overlength briefs in this action are HEREBY GRANTED.

Plaintiffs' Motion to Amend Complaint

The plaintiffs' Motion to Amend their Complaint to add the Secretary of Agriculture as a defendant is HEREBY GRANTED. Rule 15 of the Federal Rules of Civil Procedure is to be interpreted broadly so as to allow amendments. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).

Judicial Notice

The Commission's Motions for the court to take Judicial Notice pursuant to FRE 201(d) of legislative history and of the expertise of the Columbia River Gorge Commission are HEREBY DENIED. The Commission is asking the court to take judicial notice of "legislative facts" and legal conclusions which is precluded under FRE 201(d).

Subject Matter Jurisdiction

The Forest Service's Motion to Dismiss for lack of subject matter jurisdiction for improper service is WITHDRAWN as a result of the plaintiffs curing the defect in service.

60-Day Notice Requirement

The Forest Service has moved the court to dismiss all the plaintiffs except SDS Lumber from this suit for failure to give the required 60 day notice prior to suit. The Commission has also raised this issue.

The Ninth Circuit and the Supreme Court have addressed the 60 day notice requirement of RCRA (Resource Conservation and Recovery Act) for bringing suit under the citizen suit provision of that act. Hallstrom v. Tillamook County, 844 F.2d 598 (9th Cir.1987) aff'd 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1987). The Ninth Circuit held that RCRA's 60 day notice requirement, 42 U.S.C. § 6972(b) was jurisdictional, not procedural, and failure to comply required the dismissal of the action for lack of subject matter jurisdiction.

The Supreme Court affirmed the Ninth Circuit decision. The Court however, explicitly declined to rule on whether the requirement was jurisdictional or procedural, holding only that the 60 day notice and delay requirement was a mandatory condition precedent to filing suit and that where a party fails to meet this requirement, the district court must dismiss the action as barred by the terms of the statute. The purpose of the 60 day notice requirement is to give the offending agency time to investigate the situation and the opportunity to work out a mutually acceptable way to proceed without resorting to court. Id. Nonjudicial resolution of conflicts is more likely if parties consider their interests and positions in a non-adversarial setting before suit is filed. Litigation should be a last resort only after other efforts have failed. Id. See also Roe v. Wert, 706 F.Supp. 788 (W.D.Okl.1989), Thompson v. Thomas, 680 F.Supp. 1 (D.D.C.1987).

On February 7, 1991 notice was given to the Forest Service on behalf of SDS Lumber Company and Stevenson Co-ply "as well as any other similarly situated persons, corporation or public body." With respect to the Commission, no formal notice was ever given on behalf of any of the plaintiffs. The plaintiffs contend that their written comments and oral testimony in front of the Commission satisfy the 60 day notice requirement. (Ct.Rec. 5, 25, 26, 27).

The court realizes that given the strict construction the Ninth Circuit has given notice requirements, these comments and testimony in front of the commission and the phrase "as well as any other similarly situated persons, corporation or public body" probably do not constitute "pre-suit notice". It is doubtful whether the "immediate legal interest" exception requirement is even met since there never was any actual formal notice given.

However, it seems to the court that the purpose of the rule has been served. The plaintiffs have voiced their concerns that the Commission should comply with SEPA in testimony and written comments. The Commission has presumably considered such input and has decided that they do not and will not comply with SEPA.

The same is true of notice to the Forest Service. SDS Lumber gave formal notice of suit along with a detailed legal and factual analysis of their complaints. The fact that other plaintiffs have joined in the litigation does not change the fact that the Forest Service was aware of the impending lawsuit and the basis for the claim.

Moreover, all the parties to this action have committed a substantial amount of time and energy to this litigation. To dismiss the claim now because of a failure to strictly comply with a 60 day notice requirement would be a poor and ineffective use of judicial resources. The court feels that its time is much better used and the parties better served by considering the more important issues involved in the merits of this litigation.

Accordingly, the Forest Service's ...