Montana Wilderness v. U.S. Forest Serv., No. CV-94-062-GF.

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Writing for the CourtHatfield
Citation45 F.Supp.2d 1006
Docket NumberNo. CV-94-062-GF.
Decision Date21 August 1996
PartiesTHE ISLAND RANGE CHAPTER OF THE MONTANA WILDERNESS, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, and Dale Gorman, Forest Supervisor, Defendants.
45 F.Supp.2d 1006
THE ISLAND RANGE CHAPTER OF THE MONTANA WILDERNESS, et al., Plaintiffs,
v.
UNITED STATES FOREST SERVICE, and Dale Gorman, Forest Supervisor, Defendants.
No. CV-94-062-GF.
United States District Court, D. Montana, Great Falls Division.
August 21, 1996.

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COPYRIGHT MATERIAL OMITTED

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Dennis J. Tighe, Davis, Hatley, Haffeman & Tighe, PC, Great Falls, MT, Howard F. Strause, Strause Law Office, Great Falls, MT, Stuart F. Lewin, Lewin Law Office, Great Falls, MT, for Island Range Chapter of the Montana Wilderness Association, American Wildlands, Russell Country Sportsmen, John Ressler, Stuart Lewin.

George F. Darragh, Jr., Office of the U.S. Attorney, Great Falls, MT, John Potter, Jr., Potter Law Office, White Sulphur Springs, MT, Allison Rumsey, U.S. Department of Justice — E.N.R.D. General Litigation, Washington, DC, for United States Forest Service.

MEMORANDUM AND ORDER

HATFIELD, District Judge.


The above-entitled action has its genesis in the United States Forest Service's decision to proceed with a timber sale in the Smokey-Corridor area of the Little Belt Mountains in the Lewis and Clark National Forest. Plaintiffs, Island Range Chapter of the Montana Wilderness Association, American Wildlands, Russell County Sportsmen, John Ressler and Stuart Lewin, instituted the above-entitled action for declaratory and injunctive relief, alleging the Forest Service's decision to proceed with the sale is violative of the National Forest Management Act, 16 U.S.C. §§ 1600 et seq., the Clean Water Act, 33 U.S.C. § 1365, and the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. Presently before the court is the Forest Service's motion for summary judgment, pursuant to Fed.R.Civ.P. 56.1 Having reviewed the record herein, together with the parties' briefs in support of their respective positions, the court is prepared to rule.

BACKGROUND

In 1986, the Forest Service, in accordance with the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq.,2 implemented a land and resource management plan for the Lewis and Clark National Forest. The plan divided the Lewis and Clark National Forest into nineteen management areas, each with different management goals.

In 1991, the Forest Service initiated plans for the Smokey-Corridor timber sale project. Recognizing the proposed action was a "major federal action significantly affecting the environment,"3 the Forest

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Service began preparing an EIS to address the project's environmental consequences. The draft EIS for the Smokey-Corridor timber project was released in July, 1993.

On January 28, 1994, the Forest Supervisor for the Lewis and Clark National Forest issued a Record of Decision ("ROD") approving the Smokey-Corridor timber sale project, as set forth in the final EIS. The project envisions five timber sales resulting in the harvesting of 2,999 acres of land, the obliteration of 7.8 miles of road, yearlong restrictions with respect to 36 miles of road within the National Forest, and the closure of 9.3 miles of road from September to December. In addition, the final EIS calls for the construction of 2.2 miles of new roads and the reconstruction of 18.6 miles of roads. The timber sale at issue herein, the Smokey B timber sale, is the first sale scheduled in accordance with the project, and will necessitate 1.1 miles of road reconstruction and 1.8 miles of road construction.

Plaintiffs filed administrative appeals of the Smokey-Corridor final EIS and ROD. The Deputy Regional Forester denied plaintiffs' administrative appeal and, on July 18, 1994, plaintiffs instituted the present action for declaratory and injunctive relief. Plaintiffs invoke the jurisdiction of this court pursuant to 28 U.S.C. § 1331, in conjunction with 28 U.S.C. §§ 2201 and 2202.

DISCUSSION

A. National Environmental Policy Act

1. Background

The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., seeks to ensure federal agencies carefully evaluate the potential environmental consequences of proposed actions. 42 U.S.C. § 4332; 40 C.F.R. § 1501. NEPA requires the preparation of an EIS under certain circumstances to ensure each agency considers all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost benefit balance. All Indian Pueblo Council v. United States, 975 F.2d 1437, 1444 (10th Cir.1992). An EIS is one of the devices that NEPA mandates in order to effect "a broad national commitment to protecting and promoting environmental quality." Id., quoting, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

An EIS must contain, inter alia, a detailed statement regarding alternatives to the proposed action. Havasupai Tribe v. United States, 752 F.Supp. 1471, 1490 (D.Ariz.1990), citing, Citizens for a Better Henderson v. Hodel, supra, 768 F.2d at 1057; 42 U.S.C. § 4332(2)(c)(iii). The discussion of alternatives is "the heart of the environmental impact statement." 40 C.F.R. § 1502.14. Consequently, an agency must examine every reasonable alternative, with the range dictated by the "nature and scope of the proposed action," State of California v. Block, 690 F.2d 753, 761 (9th Cir.1982), to permit a "reasoned choice." Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815 (9th Cir.1987), reversed on other grounds sub. nom., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). See also, 40 C.F.R. § 1502.14(a) (agency must "rigorously explore and objectively evaluate all reasonable alternatives.").

2. Scope of Review

As the Supreme Court has noted, "it is now well settled that NEPA itself

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does not mandate particular results, but simply prescribes the necessary process." All Indian Pueblo Council, supra, 975 F.2d at 1445, quoting, Robertson, supra, 490 U.S. at 350, 109 S.Ct. 1835. Consequently, judicial review of an agency's action in preparing an EIS is focused upon whether the agency adequately considered and disclosed the environmental impact of its action, and that its decision was not arbitrary and capricious. Animal Defense Council v. Hodel, 840 F.2d 1432, 1435 (9th Cir.1988).

This circuit employs a "rule of reason" [test] that asks whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences. A reviewing judge must make a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision making and informed public participation.... Once satisfied that a proposing agency has taken a "hard look" at a decision's environmental consequences, the review is at an end.

Resources, Ltd. v. Robertson, 8 F.3d 1394, 1400 (9th Cir.1993), quoting, Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992).

Accordingly, a reviewing court is not free to impose its judgment on an agency, Havasupai Tribe v. United States, supra, 752 F.Supp. at 1490, nor "fly speck" an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies. Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987). However, an EIS may be found inadequate under NEPA if it does not reasonably set forth sufficient information to enable the decision maker to consider the environmental factors and make a reasoned decision. Id. at 493.

In the case sub judice, plaintiffs maintain the final EIS for the Smokey-Corridor timber project is violative of the NEPA because it fails to adequately address (1) a reasonable range of alternatives; (2) the cumulative impacts of the timber sale and related road construction; and (3) the project's impact on elk viability. In addition, plaintiffs contend a number of significant differences between the timber sale outlined in the final EIS and what is actually being sold necessitates the preparation of a supplemental EIS.

3. Range of Alternatives

Plaintiffs maintain the subject EIS fails to examine a reasonable range of alternatives for road or area closures in the project area. Specifically, plaintiffs maintain the final EIS should have included alternatives with varying amounts and types of road closures so as to improve wildlife habitat. In addition, plaintiffs assert the Forest Service failed to analyze an alternative that would have utilized a timber harvesting method other than clearcutting.

NEPA requires an agency consider a reasonably full range of alternatives to a proposed action. Citizens for a Better Henderson, supra, 768 F.2d at 1057. See also, 42 U.S.C. § 4332(2)(c)(iii). An agency's range of alternatives is reviewed under a "rule of reason" standard that "requires an agency to set forth only those alternatives necessary to permit a reasoned choice." California v. Block, supra, 690 F.2d at 767 ("the touchstone for [a court's] inquiry is whether an EIS's selection and discussion of alternatives fosters informed decision-making and informed public participation"). Additionally, NEPA does not require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered or which have substantially similar consequences. Northern Plains Resource Council v. Lujan, 874 F.2d 661, 666 (9th Cir.1989). As a result, an agency's consideration of alternatives is sufficient if it examines an appropriate range of alternatives, even if it does not consider every available alternative. Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1181 (9th Cir.1990).

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Finally, NEPA does not require an agency to consider alternatives which do not achieve the purpose of the proposed action. Sierra Club v. Robertson, 845 F.Supp. 485, 500 (S.D.Ohio 1994). As a result, a reviewing court's inquiry is whether the agency adequately considered alternatives "reasonably related to the purpose of the project." Id., quoting,...

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