Kettle Range Conservation Group v. U.S. Forest Serv.
Citation: 28 ELR 20017
No. 97-207-PA, 971 F. Supp. 480/(D. Or., 06/17/1997)
The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA) by classifying certain units of a proposed timber sale as roaded. Because the Forest Service considers the challenged units as roaded, the studies and research that formed the basis for the environmental assessment and the finding of no significant impact analyzed the effect of the proposed sale on the challenged units only as roaded, not roadless, areas. The court first holds that declarations from members of plaintiff environmental groups reciting their current and anticipated future uses of the challenged units and noting that the proposed logging and roading of the area will interfere with their uses and enjoyment of the area sufficiently show that the environmental groups have standing. The court rejects the Forest Service's argument that the environmental groups' five-month delay before filing this suit was unreasonable and bars their right to bring suit. In addition, the government's argument that the environmental groups waived their right to make a site-specific challenge to these units, because they did not challenge the decision to reject a roadless classification for the challenged units in the forest plan, is also without merit. The Ninth Circuit has addressed this argument and held that a plaintiff's failure to challenge factual determinations made in the forest plan environmental impact statement does not prevent the plaintiff from challenging the sufficiency of the agency's NEPA disclosure at the implementation stage.
The court next holds that the Forest Service's decision to characterize the area of the challenged units as roaded is not arbitrary and capricious, even under the environmental groups' definition of "roadless area." The groups rely on a definition of "roadless area" as an area of undeveloped federal land within which there are no improved roads maintained for travel by means of motorized vehicles intended for highway use. Although there is no dispute that the roads are incapable of being traveled by motorized vehicles intended for highway use, the environmental groups' challenge fails in that aspect of the definition that requires that the area be undeveloped. Notes in the administrative record, recording the presence of old roads and skid trails as well as stumps throughout the area, demonstrate that the evidence of prior logging is not substantially unrecognizable, and thus the challenged area cannot be considered undeveloped. If it is not undeveloped, it does not meet the roadless definition.
Counsel for Plaintiffs
Gary K. Kahn
Reeves, Kahn & Eder
4035 SE 52d Ave., Portland OR 97206
Counsel for Defendant
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW 5th Ave., Ste. 1000, Portland, OR 97204