State of Cal. v. Bergland
| Decision Date | 08 January 1980 |
| Docket Number | No. S-79-523.,S-79-523. |
| Citation | 483 F. Supp. 465 |
| Court | U.S. District Court — Eastern District of California |
| Parties | STATE OF CALIFORNIA, Plaintiff, v. Bob BERGLAND, in his official capacity as Secretary of U. S. Department of Agriculture; R. Max Peterson in his official capacity as Chief of Forest Service of the U. S. Department of Agriculture; Zane G. Smith, Jr., in his official capacity as Regional Forester of the California Region of the Forest Service of the U. S. Department of Agriculture, Defendants. County of Trinity, Natural Resources Defense Council, Clear Creek Legal Defense Fund, Animal Protection Institute of America, Siskiyou Mountain Resources Council, South Fork Trinity Watershed Assn., Trinity Alps Group, Christine Jenican, Greg Kroll, William Boyer, Monica Starr, Mendocino Citizens for Wilderness, Mt. Shasta Citizens Resources Council, Plaintiffs/Intervenors. County of Del Norte, County of Siskiyou, County of Shasta, National Forest Products Assn., Western Timber Assn., American Plywood Assn., Federal Timber Purchasers Assn., Industrial Forestry Assn., Southern Forest Products Corp., Western Wood Products Assn., Bendix Forest Products Assn., Champion International Corp., Hi-Ridge Lumber Co., Louisiana Pacific Corp., Paul Bunyon Lumber Co., Sierra Forest Products, Southwest Forest Industries, Inc., Simpson Timber Co., Inland Forest Resources Council, Webco Lumber Inc., Harwood Products, Harwood Investment Co., Eugene F. Burrill Lumber Co., McGrew Bros. Sawmill Inc., Mountain Fir Lumber Co., Rough & Ready Lumber Co., Rough & Ready Timber Co., Defendants/Intervenors. |
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Ronald Barbatoe, Dist. Atty., County of Trinity, Weaverville, Cal., for Trinity County.
Robin L. Rivett, Pacific Legal Foundation, Sacramento, Cal., for Shasta, Siskiyou, and Del Norte Counties.
E. Robert Wright, Deputy Atty. Gen., Sacramento, Cal., for State of California.
Gary W. Wilburn, Lands Div., General Litigation Section, Dept. of Justice, Washington, D. C., Francis M. Goldsberry, II, Asst. U. S. Atty., Sacramento, Cal., for U. S. defendants.
David Booth Beers, Shea & Gardner, Washington, D. C., for National Forest Products Assn. et al.
George A. Sears, Pillsbury, Madison & Sutro, San Francisco, Cal., for National Forest Products Assn.
John D. Aldock, William R. Galeota, Shea & Gardner, Washington, D. C., for amicus National Ass'n of Homebuilders et al.
Roger Beers, New York City, Trent W. Orr, San Francisco, Cal., for Natural Resources Defense Fund.
Gerald Grinstein, Seattle, Wash., Tovah Thorslund, Washington, D. C., Preston, Thorgrimson, Ellis, Holman & Fletcher, Seattle, Wash., Jared G. Carter, Thomas S. Brigham, Rawles, Hinkle, Finnegan, Carter & Brigham, Ukiah, Cal., for Webco Lumber et al.
Francia M. Welker, Fort Bragg, Cal., for Clear Creek Legal Defense Fund et al.
A. James Robertson, II, Howard, Prim, Rice, Nemerovski, Canady & Pollak, San Francisco, Cal., for amicus National Ass'n of Homebuilders.
Growing public concern with the environmental effect of governmental action led Congress to enact the National Environmental Policy Act, 42 U.S.C. 4331 et seq. Principally, the Act is a device to insure that governmental agencies critically examine the environmental effect of significant federal action and proposals for legislation. To insure that the government and the public will be fully informed, NEPA requires the executive to take a "hard look" at the environmental consequences of its actions, and to disclose the facts, reasons, and results of its examination in an environmental statement. Essentially, NEPA forces the decision making process to the surface so it may be reviewed by Congress, government officials, the public, and the courts.
In this suit, the State of California and other plaintiffs attack the Forest Service's far ranging Roadless Area Review and Evaluation (RARE II), alleging that its actions with respect to some forty-seven areas in California ("disputed areas") do not comply with the requirements of NEPA. RARE II seeks to determine the future land use of some sixty-two million acres of roadless national forest land. Although all of the RARE II areas meet the minimal statutory requirements to qualify for official designation as wilderness, the Forest Service in RARE II determined that a substantial majority of these areas should be developed. As required by NEPA, the Forest Service prepared a lengthy environmental impact statement to support its decision.1 Although the statement is described by defendants as "programmatic" in nature, it supports decisions that will have significant impact on each RARE II area.2 Accordingly, the sufficiency of the statement under NEPA must be tested by the extent it demonstrates that the Forest Service took a "hard look" at the environmental impact of its actions in each area, and the extent that the Forest Service disclosed its findings as to each area.
The particular deficiency alleged by California is a failure on the part of the Forest Service to critically examine the effect of its decisions upon the wilderness quality of the RARE II areas. My examination of the RARE II environmental statement has convinced me that the Forest Service either never seriously considered the impact of its decision on the wilderness qualities of the RARE II areas, or that the Forest Service has simply failed to disclose the data, assumptions, and conclusions employed by it in such a consideration. Ultimately, the RARE II environmental statement informs Congress and the public that the Forest Service has reached certain conclusions and is prepared to act upon these conclusions. The EIS states that the Forest Service has decided to surrender wilderness values in many areas but does not reveal what it is giving up. It explains that the Forest Service plans to develop the RARE II areas but does not describe how it will develop them nor what effect such development will have. In the course of developing this decision, the Forest Service examined an array of alternative courses of action, all, save one, heavily skewed towards development, without explaining why alternatives skewed towards wilderness were not considered. Although NEPA requires full disclosure and public participation, the Forest Service adopted a method of disclosure and public participation that effectively undercut the possibility of serious public participation in its decision making process.
For these reasons, I hold that the RARE II environmental statement violated the National Environmental Policy Act. Accordingly, I enjoin the Forest Service from developing any of the disputed areas in this lawsuit prior to considering the wilderness values of the areas in compliance with NEPA. My decision in no way is based upon any conclusion that there is a "correct" decision as to how many of these areas should be developed and how many should be left as wilderness. The Forest Service bears the responsibility for making that determination, and no court may upset that substantive decision unless it is arbitrary. My conclusion is based solely on the ground that the Forest Service did not comply with NEPA's procedural requirements. Although Congress selected a procedural approach to address the great challenge of environmental management, these requirements cannot be deprecated as "mere procedure" for "it is procedure that marks much of the difference between rule by law and rule by fiat." Wisconsin v. Constantineau (1971) 400 U.S. 433, 436, 91 S.Ct. 507, 509, 27 L.Ed.2d 515.
The Forest Service administers the National Forest System comprising 187.7 million acres organized into 154 National Forests. The RARE II areas, ultimately including 2,918 areas covering a little more than 62 million acres, are included in the System. A separate system, the National Wilderness Preservation System, was established in 1964, and presently includes some 187 areas including more than 19 million acres.
In 1972, the Forest Service commenced RARE I, a program to identify roadless areas, and to determine what activities, if any, were appropriate for them. RARE I considered 56 million acres throughout the United States and resulted in the selection of some 21.3 million acres as wilderness study areas. The RARE I program was not supported by an environmental impact statement and its methodology was severely criticized. When the Forest Service attempted to develop certain of the RARE I lands, a federal court enjoined development pending compliance with NEPA. See Wyoming Outdoor Coordinating Council v. Butz (10th Cir. 1973) 484 F.2d 1244.
For several years following RARE I, the Forest Service did not further attempt programmatic consideration of roadless areas. Rather, the Service chose a site by site evaluation during the local forest planning process. Finally, in June, 1977, RARE II was commenced. The asserted purpose of RARE II was to speed the process of wilderness allocation and to open remaining roadless areas to development.
Like RARE I, RARE II sought to inventory roadless areas and then evaluate them. The final result of RARE II was the designation of each area into one of three categories: wilderness, nonwilderness, or further planning. Wilderness designation was a recommendation to Congress for inclusion of an area in the Wilderness Preservation System. Nonwilderness designation meant that the area was open to development without further consideration of wilderness. Further planning was, essentially, a decision not to decide and to leave land use issues to the ordinary forest planning process. Essentially, then, RARE II contemplated two actions: (1) recommendations to Congress for wilderness classification; and (2) an administrative decision to open areas to development and in general not to further consider wilderness issues.
The RARE II process was supported by a draft and final...
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