Vance v. Block

• Decision Date: 25 April 1986
• Docket Number: No. CV-83-115-M.,CV-83-115-M.
• Citation: 635 F. Supp. 163
• Court: U.S. District Court — District of Montana
• Parties: Don VANCE and Save the Yaak Committee, Plaintiffs, v. J.R. BLOCK, Secretary of Agriculture; R. Max Peterson, Chief, Forest Service; and Thomas Coston, Region I Forester, Defendants.

635 F. Supp. 163

Don VANCE and Save the Yaak Committee, Plaintiffs, v. J.R. BLOCK, Secretary of Agriculture; R. Max Peterson, Chief, Forest Service; and Thomas Coston, Region I Forester, Defendants.

No. CV-83-115-M.

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

April 25, 1986.

Charles Sheroke, Coeur d'Alene, Idaho, Karl J. Englund, Missoula, Mont., for plaintiffs.

George F. Darragh, Jr., Asst. U.S. Atty., Dist. of Montana, Great Falls, Mont., for defendants.

MEMORANDUM

HATFIELD, District Judge.

On April 15 of this year, an order issued from this court denying plaintiffs' motion for summary judgment and granting defendants' cross-motion for summary judgment. This memorandum is rendered for the purpose of more fully relating this court's reasons for making that order.

Plaintiffs filed this complaint for declaratory and injunctive relief in August 1983.¹ Claims were made under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq.; the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq.; the National Forest Management Act, 16 U.S.C. §§ 1600 et seq.; the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 551 et seq.; and the regulations issued thereunder. Plaintiffs' application for a temporary restraining order, halting paving operations on a seventeen mile portion of the Yaak River Road, running from Porcupine Creek to Sullivan Creek, was denied, after hearing, on August 5, 1983. The appeal of the order denying the temporary restraining order was never perfected.

NEPA CLAIM

As this court noted in the April 15 order, plaintiffs' primary focus in the initial stages of this case was on the reconstruction of the road itself. While timber sales allegedly intertwined with the road improvements were mentioned in the complaint, plaintiffs' main thrust was that the decision to pave the entire Yaak River Road was a "proposal for major federal action significantly affecting the quality of the human environment." As such, plaintiffs argued, defendants were obligated to prepare a full Environmental Impact Statement ("EIS"), instead of the less comprehensive Environmental Assessments which accompanied each proposal to pave a portion of this seventy mile road.²

NEPA mandates that each "major Federal action significantly affecting the quality of the human environment" be the subject of an EIS. 42 U.S.C. § 4332(2)(C). In deciding whether or not to prepare an EIS for a given project, the administrative agency involved must be given considerable discretion in defining the need for, and scope of, an EIS. See, Kleppe v. Sierra Club, 427 U.S. 390, 412-15, 96 S.Ct. 2718, 2731-33, 49 L.Ed.2d 576 (1976). The standard of review to be employed by this court is one of reasonableness — i.e., this court will uphold defendants' decision not to prepare an EIS unless that decision is unreasonable. Found. for No. Amer. Wild Sheep v. Dept. of Ag., 681 F.2d 1172, 1177 (9th Cir.1982).

In reviewing the decision to forego preparation of an EIS, this court must consider whether plaintiffs have demonstrated that the road reconstruction proposal "may significantly degrade some human environmental factor." Columbia Basin Land Protection Ass'n. v. Schlesinger, 643 F.2d 585, 597 (9th Cir.1981). Plaintiffs need only have raised substantial questions as to whether this project may have a significant effect on the human environment. City & County of S.F. v. U.S., 615 F.2d 498, 500 (9th Cir.1980). The burden, of course, rests with the plaintiffs, to show that the resurfacing of the Porcupine-Sullivan Road may significantly undermine the human environment.

In the case sub judice, the Forest Service completed an Environmental Assessment ("EA") for the Porcupine-Sullivan Creek Road project. An EA serves as a vehicle for the determination of whether an EIS is required, for facilitating the preparation of an EIS if necessary, or for aiding an agency in discharging its NEPA-mandated duties if no EIS is required. 40 C.F.R. § 1508.9; 7 C.F.R. § 3100.20. Here, upon completion of, and consideration of, the EA, the Forest Supervisor determined that the repaving project's impacts were insignificant, and issued a "finding of no significant impact" ("FONSI"). This court must decide, in the first instance, whether the defendants took the requisite "hard look" at the environmental effects of this paving project, making its decision not to order an EIS reasonable. Kleppe v. Sierra Club, supra, 427 U.S. at 410 n. 21, 96 S.Ct. at 2730 n. 21.

While this court's order of August 5, 1983 was directed solely at plaintiffs' request for injunctive relief, many of the observations therein relate to the merits of the parties' cross-motions for summary judgment. Quite simply, this court deems reasonable the defendants' decision that the paving project, standing alone, need not be subjected to the rigors of a full EIS. Because everyone seems to acknowledge that this is more properly a "cumulative effects" case, extended discussion of this point is unnecessary.

The court first notes that the plaintiffs did not appeal the May 19, 1982 decision and FONSI administratively. As this court observed when denying injunctive relief, plaintiffs' attack on the resurfacing project was far from timely. See, generally, Memorandum of August 16, 1983. While it was observed that laches is to be applied infrequently in environmental cases, Coalition For Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir.1980), courts are not foreclosed from applying the doctrine. Lathan v. Volpe, 455 F.2d 1111 (9th Cir.1971). Here, much of the preparatory work had been completed when suit was brought. Crews were at the job site. Both plaintiff Vance and his attorney were well aware of the proposed course of action with respect to the resurfacing well before it commenced. The final decision to resurface Porcupine-Sullivan, and the associated FONSI, was announced one year prior to suit being filed.

Plaintiffs' lack of diligence notwithstanding, the fact remains that the evidence adduced was insufficient to convince this court that the resurfacing project itself should trigger the EIS portion of NEPA. This roadway, in a lesser state, has existed since 1968. Resurfacing plans included no proposal for widening. Proposals for resurfacing most segments of the road were accompanied by an EA. The general character and design speed of this roadway were not altered by the paving project. The project here under scrutiny merely resulted in improved drainage, and placement of an asphalt mat on the base rock. This project, then, could reasonably be construed as not amounting to a major Federal action significantly affecting the human environment.

Further, the evidence belies plaintiffs' contention that the EA prepared for Porcupine-Sullivan did not contain sufficient interdisciplinary input. Preparers of the EA consulted many individuals, including a wildlife biologist. The EA studied environmental effects on soil, watersheds, wildlife, recreation, and other factors. Of note is the fact that no comments were received on this EA.

As previously noted, the real crux of this case is whether the decision to improve this roadway, and the timber sales in the area, are "inextricably intertwined," necessitating combined treatment in a single EIS. Most recently, the Ninth Circuit Court of Appeals considered that very issue in Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). Thomas involved a challenge by several environmental concerns to actions by the Forest Service in planning and approving a single lane, gravel road in a former National Forest roadless area located in the State of Idaho. In reversing the district court's grant of summary judgment on behalf of the Forest Service, the Circuit Court held that the road project and contemplated timber sales were "inextricably intertwined," were "connected actions," and would, in the court's view, "have cumulatively significant impacts." Thomas, 753 F.2d at 759. Accordingly, the Court of Appeals ordered preparation and consideration of an EIS that analyzed the combined impacts of the new road and the timber sales which, in the opinion of the court, the road was "designed to facilitate." Id., at 761.

Shortly after Thomas was decided, plaintiffs renewed their application for a temporary restraining order, indicating the belief that this case was governed by the holding in the Idaho controversy. Rather than spending time considering such extraordinary, equitable relief, this court ordered a timely trial on the merits. So much did plaintiffs rely on Thomas that a proposed order submitted by them, prior to trial, merely mirrored the language and analysis used in that decision. For reasons more fully explained below, this court finds that the scenario which has unfolded in the Yaak differs from the Thomas situation in several critical respects.

The most basic distinction between the Yaak and the Jersey Jack area in Thomas is the fact that, while the Yaak area has been roaded since at least 1968, the Jersey Jack area was an unroaded, National Forest area. Consequently, a second, vital difference appears. In the Yaak, this road has existed and will exist in the area whether or not any new timber contracts are awarded. The route covered by the road has not changed in response to new timber contracts. In contrast, the Ninth Circuit placed considerable emphasis on the fact that the location, routing, construction techniques and other aspects of the Jersey Jack road was entirely dependent upon the location and timing of the timber sales. Thomas, 753 F.2d at 760. Here, the new surface has admitted benefits to timber haulers, in the form of decreased trucking expenses and equipment breakdowns. Yet the evidence at trial was unequivocal that timber harvests would continue in the Yaak with or without the asphalt surface. In addition, plaintiffs are unable to seriously undermine defendants' contention that this road serves interests other...