Thomas v. Peterson

Decision Date21 May 1984
Docket NumberCiv. No. 82-2056.
Citation589 F. Supp. 1139
PartiesHarold THOMAS, dba Allison Ranch and Cook Ranch, et al, Jim Campbell, Ed Robertson, Jr., D.J. Grim, George Waldenmeyer, Bob Tillotson, Don Holland, Dr. Howard Adkins, E.I. Robertson, Orville Groves, Jack Badley, Paul Resnick, Virginia Hopfenbeck, E.C. Tom Close, Francis Wisner, Jim Powell, Richard Justis, Dixie Outfitters, Ralph Gormley, Lester West, Idaho Conservation League, Idaho Wildlife Federation, Idaho Environmental Council, Ada County Fish and Game League Western Whitewater Assoc., Inc. Dan Cada, Ernest E. Day, Robert L. Day, T. Stanley Nelson, Janet Ward, Fredrick Ward, Herbert Erickson, Ronald B. Jones, Morton R. Brigham, Ed Langworthy, Marjorie Hayes, John Zimmer, Jr., Plaintiffs, v. R. Max PETERSON, in his official capacity as Chief of the United States Forest Service, Defendant. Inland Forest Resources Council, a Montana Corporation; Bennett Lumber Products Company, an Idaho corporation; and Evergreen Forest Products, an Idaho corporation, Defendants/Intervenors.
CourtU.S. District Court — District of Idaho

COPYRIGHT MATERIAL OMITTED

Michael Axline, Pacific Northwest Resources Clinic, Eugene, Or., Bruce Bowler, Boise, Idaho, for plaintiffs.

William R. Van Hole, U.S. Atty., Jeffery W. Ring, Asst. U.S. Atty., Boise, Idaho, for defendant.

Runft, Stecher, Coffin, Adlard & O'Riordan, Boise, Idaho, for defendants/intervenors.

MEMORANDUM DECISION

CALLISTER, Chief Judge.

In this action, plaintiffs contend that the United States Forest Service decided to build a forest road without complying with certain statutory and regulatory procedures. Specifically, plaintiffs assert that the Forest Service violated various provisions of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; the National Forest Management Act, 16 U.S.C. § 1600 et seq.; the Endangered Species Act, 16 U.S.C. § 1531 et seq.; the National Forest Roads and Trails Systems Act, 16 U.S.C. § 535 et seq.; the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq.; the Administrative Procedures Act, 5 U.S.C. § 551 et seq.; and the regulations promulgated under each of these acts. Plaintiffs seek to enjoin the building of the road and a declaratory judgment finding the alleged violations of these acts.

This Court permitted Evergreen Forest Products, Bennett Lumber Company, and the Inland Forest Resources Council to intervene in the action as defendants. These intervenors, the plaintiffs, and the federal defendant have all moved for summary judgment. The parties are in general agreement that there are no genuine issues as to any material fact, and the Court likewise finds that none exists. Accordingly, summary judgment is appropriate at this juncture. See Fed.R.Civ.P. 56(c).

I. FACTUAL BACKGROUND

On February 9, 1981, the Forest Service issued a decision notice proposing construction of the "Jersey Jack Road." Prior to the issuance of that decision notice, eight alternative proposals were considered and "Alternative No. 4" was selected. That alternative proposes constructing approximately 14.2 miles of new road and reconstructing 1.18 miles of existing road between Dixie Summit and Lowman Saddle in the Nezperce National Forest.

The proposed road is a single-lane, gravel road located approximately fifty-miles southeast of Grangeville, Idaho, in the Red River Ranger District of the Nezperce National Forest. Before 1968, the area proximate to the proposed road was within the Dixie Ranger District.

In connection with the decision to build the proposed road, the Forest Service conducted an environmental assessment from which the Nezperce Forest Supervisor determined that a full environmental impact statement was unnecessary. Consequently, a "finding of no significant impact" was issued with the decision notice.

Following an appeal of the decision notice by one of the plaintiffs named in this action, the Regional Forester rendered a decision affirming the Forest Supervisor's actions. The Regional Forester's decision was then appealed to the Chief of the Forest Service, and on November 24, 1981, the Chief affirmed the Regional Forester's decision. Pursuant to 36 C.F.R. § 211.19(i)(2), the Chief's decision became the final administrative determination by the United States Department of Agriculture.

II. NATIONAL ENVIRONMENTAL POLICY ACT

Plaintiffs' complaint alleges that the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. by relying upon an Environmental Assessment (EA) rather than preparing an Environmental Impact Statement (EIS) for the proposed Jersey Jack Road. According to defendant and the intervenors, a full EIS was unnecessary because the EA indicates little impact on the environment would result from constructing the road.

Title 42 U.S.C. § 4332(2)(C) describes the circumstances requiring preparation of an EIS1 and charges the Council on Environmental Quality (CEQ) with implementing the goals of NEPA through necessary regulations. See 40 C.F.R. §§ 1500-08; Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979). Under NEPA, all federal agencies must

include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(C).

The CEQ regulations establish three categories of federal agency activities. The first category consists of actions which clearly will have no significant environmental impact and therefore may be categorically excluded. See 40 C.F.R. §§ 1501.4(a)(2), 1508.4.

In the second category are those actions where the agency is uncertain about the significance of the impact. For these actions, agencies must prepare an Environmental Assessment (EA). 40 C.F.R. § 1504.4(2)(B). An EA is a "concise public document" that should "briefly provide significant evidence and analysis for determining whether to prepare an environmental impact statement or a finding of significant impact." 40 C.F.R. § 1508.9. The purpose of an EA is to determine whether an EIS is required, to facilitate preparation of the EIS if necessary, and to aid the agency in complying with NEPA if no EIS is required. See 40 C.F.R. § 1508.9; 7 C.F.R. § 3100.20.

If the EA demonstrates the impact to be significant, an EIS must be prepared. 40 C.F.R. § 1501.4(2)(C). When the impact is found to be insignificant, the agency makes a "finding of no significant impact" ("FONSI") 40 C.F.R. § 1501.4(2)(E); § 1508.13.

Here, the Forest Service entered a FONSI after completing an EA, thereby finding that an EIS was unnecessary. It is that determination which the Court must review under plaintiffs' NEPA claims.

The third category consists of all federal actions determined to have a significant impact on the environment. Such a determination may occur either in the initial stages of a proposed project, 40 C.F.R. § 1508.4, or as the result of preparing an EA. 40 C.F.R. § 1501.4(c). For these actions, an EIS must be prepared. 40 C.F.R. § 1508.11.

It is important to focus upon the appropriate standard of review of an agency's decision that an EIS is not required. Although some courts hold that that standard is whether the decision not to prepare the EIS was arbitrary and capricious, that standard typically applied in a review of administrative proceedings, see e.g., Robinson v. Knebel, 550 F.2d 422, 423, 427 (8th Cir.1977); Hanly v. Kleindienst, 471 F.2d 823 (2d Cir.) cert. denied 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1972), the Ninth Circuit adheres to the more searching standard of "reasonableness." Foundation for North American Wild Sheep v. Dept. of Agriculture, 681 F.2d 1172, 1177 (9th Cir.1982); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir.1975). An agency's determination that an EIS need not be prepared will be upheld unless unreasonable. Foundation for North American Wild Sheep, 681 F.2d at 1170; Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 859 (9th Cir.1982); City and County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir.1980).

On review, this Court must determine if the plaintiffs have "alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor." Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 597 (9th Cir. 1981). Plaintiffs need not establish that significant effects on the human environment will actually occur. Foundation for North American Wild Sheep, 681 F.2d at 1178; City and County of San Francisco, 615 F.2d at 500. "If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared." Foundation for North American Wild Sheep, 681 F.2d at 1178.

NEPA requires preparation of an EIS for all "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Although the statute requires an EIS whenever there exists a "major federal action," few decisions address that provision in detail. Most attention is paid to the mandate that an EIS is necessary for federal actions "significantly affecting the quality of the human environment."

The federal courts have struggled to find an adequate definition of the phrase "significantly affecting."2 Whatever meaning is to be given the term, it must always be viewed in light of the NEPA goal of ensuring that federal agencies have...

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1 cases
  • Thomas v. Peterson
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 10, 1988
    ...district court granted summary judgment for appellees, the Chief of the Forest Service and others, on all issues. See Thomas v. Peterson, 589 F.Supp. 1139 (D. Idaho 1984). Appellants appealed and this court reversed in part and affirmed in part. See Thomas v. Peterson, 753 F.2d 754 (9th Cir......

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