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Mahler v. U.S. Forest Serv.

Citation: 28 ELR 20256
No. 97-1117, -1253, 128 F.3d 573/(7th Cir., 10/20/1997)

The court holds that an interdepartmental memorandum of agreement that provides for a 20-day public comment period for environmental assessments prepared for timber salvage sales in the Hoosiers National Forest is valid under the Rescissions Act. The court holds that the Rescissions Act authorizes the Secretary of Agriculture to permit a shorter period for public comment than that usually required under the Public Participation Law. The court first finds that Congress, in enacting the Rescissions Act, clearly intended to provide an expedited procedure for the removal of damaged and diseased timber from the national forests. And, to achieve that end, Congress intended that the cognizant department have discretion to adopt more abbreviated procedures than those usually employed when intrusions into the ecology of the national forests are contemplated. Specifically, by mandating that compliance with the terms of the Rescissions Act would constitute compliance with the Forest and Rangeland Renewable Resources Planning Act, Congress also abrogated the requirements of the Public Participation Law, which can only be viewed realistically as part of the Act.

Alternatively, the court finds that the Rescissions Act abrogated the pertinent notice provisions of the Public Participation Law. The Rescissions Act provides that any timber sale conducted in accordance with its provisions shall be deemed to satisfy the requirements of all other applicable federal environmental and natural resource laws and their regulations. And the Public Participation Law is an applicable federal environmental and natural resource law; its terms govern the notice and public comment period for projects that implement land and resources management plans.

[A decision related to this litigation is published at 26 ELR 21529.]

Counsel for Plaintiff
Andy Mahler
Rt. 3, P.O. Box 402, Paoli IN 47454
(812) 723-2430

Counsel for Defendants
Sue H. Bailey, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse.
46 E. Ohio St., 5th Fl., Indianapolis IN 46204
(317) 226-6333

Before Coffey and Easterbrook, JJ.