Wilderness Soc. v. Rey, s. CV-01-219-M-DWM, CV-01-220-M-DWM.

• Decision Date: 07 January 2002
• Docket Number: Nos. CV-01-219-M-DWM, CV-01-220-M-DWM.,s. CV-01-219-M-DWM, CV-01-220-M-DWM.
• Citation: 180 F.Supp.2d 1141
• Parties: The WILDERNESS SOCIETY and American Wildlands, Plaintiffs, v. Mark REY, Undersecretary of Agriculture; Rodd Richardson, Forest Supervisor of the Bitterroot National Forest; and United States Forest Service, Defendants. Friends of The Bitterroot; The Ecology Center, Inc.; Center for Biological Diversity; and The Sierra Club, Plaintiffs, v. Mark Rey, in his official capacity as Undersecretary of Agriculture; Rodd Richardson, in his official capacity as Forest Supervisor for the Bitterroot National Forest; United States Forest Service, an agency of the U.S. Department of Agriculture; United States Department of Agriculture, Defendants.
• Court: U.S. District Court — District of Montana

180 F.Supp.2d 1141

The WILDERNESS SOCIETY and American Wildlands, Plaintiffs, v. Mark REY, Undersecretary of Agriculture; Rodd Richardson, Forest Supervisor of the Bitterroot National Forest; and United States Forest Service, Defendants.

Friends of The Bitterroot; The Ecology Center, Inc.; Center for Biological Diversity; and The Sierra Club, Plaintiffs, v. Mark Rey, in his official capacity as Undersecretary of Agriculture; Rodd Richardson, in his official capacity as Forest Supervisor for the Bitterroot National Forest; United States Forest Service, an agency of the U.S. Department of Agriculture; United States Department of Agriculture, Defendants.

Nos. CV-01-219-M-DWM, CV-01-220-M-DWM.

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

January 7, 2002.

Douglas L. Honnold, Timothy J. Preso, EarthJustice Legal Defense Fund, Bozeman, MT, for Plaintiffs in No. CV 01-219-M-DWM.

Wells D. Burgess, U.S. Department of Justice, Environment & Natural Resources Division, Richard L. Rennert, John P. Almeida, U.S. Department of Justice, E.N.R.D. General Litigation, Washington, DC, Bill Mercer, U.S. Attorney, Billings, MT, for Defendants in No. CV 01-219-M-DWM.

Mark D. Fink, Western Environmental Law Center, Eugene, OR, Elizabeth Mitchell, Ronni Flannery, Western Environmental Law Center, Ketchum ID, for Plaintiffs in No. CV 01-220-M-DWM.

Wells D. Burgess, U.S. Department of Justice, Environment & Natural Resources Division, Richard L. Rennert, John P. Almeida, U.S. Department of Justice, E.N.R.D. General Litigation, Washington, DC, Bill Mercer, U.S. Attorney, Billings, MT, for Defendants in No. CV 01-220-M-DWM.

ORDER

MOLLOY, Chief Judge.

I. Introduction

Wildfires of both human and natural origin burned significant areas of the Bitterroot National Forest in the summer of 2000. The Forest Service subsequently developed a salvage project for the burned areas and released a draft Environmental Impact Statement for the project in May of 2001. The Forest Service accepted public comment on the DEIS until July 31, 2001. On October 10, 2001 the Forest Service released a final Environmental Impact Statement on the Bitterroot Burned Area Recovery project. The FEIS featured a preferred alternative, known as Alternative F, that was not an alternative in the DEIS. Mark Rey, Undersecretary of Agriculture, signed the Bitterroot Record of Decision on December 17, 2001, maintaining that his approval constituted the final administrative determination for the project.

Plaintiffs now seek a preliminary injunction to stop implementation of the project until the Forest Service complies with the rule of law. That law grants a statutory right to appeal certain Forest Service decisions concerning projects implementing Forest Plans. See Pub.L. 102-381, Title III, § 322, Oct. 5, 1992, 106 Stat. 1419; 16 U.S.C. § 1612 Note. Plaintiffs maintain that the Record of Decision for this salvage project is appealable under applicable regulations. See 36 C.F.R. §§ 215.7 & 215.8. The right to an administrative appeal must be afforded to any person or organization that participated by oral or written comment on the BAR project. "Any person or organization" means logging interests who may believe they have been shorted nearly 32,000 acres of potential salvage logging from the original proposal; it means local businesses and community officials, it means those interested in environmental issues.

The controlling legal issue raised by the Complaints filed against the Forest Service emanates from the proposition that the agency is acting in express contradiction to an act of Congress. Pub.L. 102-381, Title III, § 322, Oct. 5, 1992, 106 Stat. 1419. After full consideration of the legal arguments by interested parties, both written and oral, I am convinced Plaintiffs are right about the law. When the Temporary Restraining Order was issued I noted:

In electing to disregard the express mandate of Congress the Forest Service is acting without authority. The agency is the creature of Congress and must follow the clear, express direction of Congress. The precipitous action here of electing to take the law into its own hands will cause the very difficulty the agency reasons it is trying to avoid. The action taken by the Forest service here tends to cause the affected communities of interest to polarize, while the appeal process Congress requires is intended to harmonize to the extent possible the various interests in the decision-making process.

Temporary Restraining Order, December 18, 2002.

I believe my original ruling was correct. The number of comments in the administrative process, over 4,000, show the case is unusual in both public interest and public participation. It is presumptuous to believe that the agency's final decision has a perfection about it that would not be illuminated by interested comment, questioning, or requests for justification of propositions asserted in it. Congress wanted the opportunity for full democratic participation in Forest Service decision making when it created a statutory right to an administrative appeal. Neither the Secretary of Agriculture, the Undersecretary of Agriculture, nor the Forest Service can take away a right the Congress granted or a process Congress demanded.

For the reasons set forth below I am granting a Preliminary Injunction enjoining the Forest Service and the Secretary of Agriculture from implementing the project until they have complied with the law. The preliminary injunction does not bar the Forest Service from exercising any authority delegated to it by law under statute or regulation that complies with the Appeals Reform Act.

II. Facts

During the fire season of 2000, wildfires burned extensive areas in the Bitterroot National Forest in western Montana. The fires significantly impacted the forest, the surrounding communities, the persons who use and work in the forest, as well as the environment. After the fires, these factors caused the United States Forest Service to conduct many public meetings, to collect input on post-fire management, and to initiate public scoping on action to be taken in the forest.

A Notice of Intent to prepare an Environmental Impact Statement was published in the Federal Register on February 13, 2001. Three and one half months later, on June 1, 2001, the Forest Service made available its Draft EIS for the Bitterroot Burned Area Recovery Project. The DEIS considered and analyzed five alternatives ranging from taking no action at all to logging up to 73,000 acres of salvageable timber in the Bitterroot National Forest. The preferred alternative in the DEIS, Alternative B, proposed management activities on 73,000 acres. There was extensive public comment on the DEIS, indicating an active and interested community of different interests.

After consideration of the broad range of public comment, the Forest Service revised some of its positions and published a Final EIS for the Bitterroot BAR on October 10, 2001. The preferred alternative in the FEIS, Alternative F, proposed management activities on approximately 46,000 acres, down significantly from the originally-suggested 73,000 acres. The Forest Service then accepted comment on the FEIS for 30 days.

Meanwhile the person with authority closest to the project felt a need to invoke certain regulations to enable immediate logging activities, implicitly assuming the law requiring administrative appeals would be followed. On October 1, 2001, before the release of the FEIS, Bitterroot Forest Supervisor Rodd Richardson petitioned for an emergency situation determination by the Chief of the Forest Service pursuant to 36 C.F.R. § 215.10(d)(1)(iii). Exercise of that authorization was to allow immediate tree cutting to proceed on about 4800 acres and to decommission about 12 miles of road. Under applicable regulations, an emergency determination by the Chief would have allowed the emergent portions of the project to proceed during the pendency of any expected administrative appeal. Inexplicably, Chief of the Forest Service Dale Bosworth chose not to act on Supervisor Richardson's request.¹

Perhaps the explanation lies in what happened next, the extra legal effort to circumvent the law. On November 23, 2001 Chief Bosworth instead asked Mark Rey, the Department of Agriculture Undersecretary for Natural Resources and Environment, to sign the Record of Decision for the BAR. Chief Bosworth reasoned that having Undersecretary Rey sign the ROD would relieve the Forest Service from any administrative appeals process, which Bosworth reckoned would delay implementation of urgently needed restoration actions. This unique approach looked to create a non-existent statutory exception by relying on a strained textual reading of the governing statutes and regulations. Chief Bosworth then asked Undersecretary Rey to delay any decision until December 10, 2001 so the Forest Service could provide notice that Undersecretary Rey would sign the ROD. This too was a novel approach to the law.

Undersecretary Rey then signed the BAR ROD on December 17, 2001. The ROD modified Alternative F by further reducing the scope of proposed management activities, providing for salvage tree cutting on about 41,000 acres. There has been no post-ROD comment on modified Alternative F, the process that normally is resolved by the administrative appeal.

Plaintiffs The Wilderness Society and American Wildlands filed suit the next day, CV-01-219-M-DWM, seeking a Temporary Restraining Order and a Preliminary Injunction to require the Forest Service to implement the administrative appeals process for the BAR ROD and to enjoin implementation of the BAR ROD until any administrative appeals have been resolved. Plaintiffs Friends of the Bitterroot, The Ecology Center, Center for Biological Diversity, and the Sierra Club also filed suit on December 18, 2001, CV-01-220-M-DWM, also seeking injunctive relief. All Plaintiffs in both CV-01-219-M-DWM and CV-01-220-M-D...