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Pilchuck Audubon Soc'y v. MacWilliams

Citation: 19 ELR 20526
No. No. C87-1707R, (W.D. Wash., 01/15/1988)

The court holds that a preliminary injunction is appropriate on an environmental group's claims that the Forest Service failed to publish a proper notice of its decision to reoffer a timber contract in an old-growth area of a national forest, the resale violates the Service's clearcutting guidelines and National Forest Management Act (NFMA) regulations, and the Service's failure to update an eight-year-old environmental assessment (EA) violates the National Environmental Policy Act (NEPA). The court first holds that plaintiff is likely to prevail on its claim that the Forest Service did not provide a proper notice of decision concerning the timber resale. The notice provided by the Service identified this contract as not subject to administrative appeal, and both the prospectus and the newspaper advertisement neglected to mention the decision to resell. Moreover, the Service acknowledges that it never issued a notice of decision. That the original 1979 decision to sell the timber remains unchanged does not negate the right of appeal, given a recent Ninth Circuit decision holding that reoffers of returned timber sales are appealable discretionary decisions. The court holds that plaintiff's claims are not barred by the doctrines of laches or exhaustion of remedies. The court holds that plaintiff is likely to prevail on its claim that the resale violates the Forest Service's own clearcutting guidelines and NFMA regulations. Forest Service guidelines impose a clearcut limit of 40 acres for the type of timber involved in the resale, and the Forest Service region in question has adopted those guidelines in its existing resource management plan. Since the decision to reoffer a defaulted timber sale constitutes a new discretionary act, the guidelines apply even though the initial decision to sell the timber was in 1979.

The court holds that plaintiff is likely to prevail on its claim that a new EA is required under NEPA. That plaintiff did not challenge the 1979 EA does not mean the existing one is satisfactory. The Council on Environmental Quality has stated that EAs more than five years old for unimplemented projects should be carefully reexamined to determine if a supplement is needed. Moreover, plaintiff has offered evidence that new information, not available in 1979, raises serious questions about the environmental impacts of the proposed resale. Recent Congressional action limiting review of timber contracts does not rule out the need for new environmental review due to staleness or changed circumstances, since it states only that modifications of reoffers should not by themselves be construed as requiring additional review. The court holds that plaintiff has demonstrated irreparable harm, since the loss of old-growth trees cannot be repaired for at least several generations. Finally, the court holds that the public interest would be served by issuance of a preliminary injunction, since the public has a manifest interest in the preservation of old-growth trees and in having the Forest Service comply with environmental laws.

Counsel for Plaintiff
Victor M. Sher, Todd D. True, Corrie J. Yackulic
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Susan Barnes, Ass't U.S. Attorney
800 Fifth Ave., Ste. 3600, Seattle WA 98104
(206) 442-5598

Stephen Smith
Preston, Thorgrimson, Ellis & Holman
5400 Columbia Seafirst Center, 701 Fifth Ave., Seattle WA 98104-7011
(206) 623-7580