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California v. Block

ELR Citation: 13 ELR 20092
Nos. Nos. 80-4101 et al., 690 F.2d 753/18 ERC 1149/(9th Cir., 10/22/1982) Aff'd in part, rev'd in part, & remanded

The Ninth Circuit affirms most of the district court's ruling, 10 ELR 20098, that the Forest Service's final environmental impact statement (EIS) for its Roadless Area Review and Evaluation (RARE II) was inadequate to support the non-wilderness designations of 47 areas in California and therefore violated the National Environmental Policy Act (NEPA). The court first affirms the district court's ruling that the EIS did not adequately address the site-specific impacts of the proposed designations. Applying a rule of reason, the court finds that such impacts must be evaluated before a "critical decision" has been made to act on site development. Because Forest Service regulations specify that nonwilderness areas will be managed for uses other than wilderness, designation as non-wilderness effectively opens an area to nonwilderness uses in the life of the forest management plan. The court rules that the final EIS failed to satisfy the then applicable Council on Environmental Quality NEPA guidelines, because it did not (1) describe adequately the wilderness characteristics of each area, (2) assess the wilderness value of each area or the impact of non-wilderness designations on wilderness characteristics, (3) consider the effect of non-wilderness classification on future opportunities for wilderness classification, and (4) weigh the economic benefit of development against the wilderness loss it causes.

The court next rules that the final EIS did not consider a range of alternatives adequate to permit the requisite "reasoned choice" by the agency. The district court erred in ruling that the Forest Service should have added to the three classifications of RARE II lands it considered, but was correct in ruling that the Forest Service must consider the alternative to development of RARE II lands of increasing production on areas already open to development. The court also affirms the ruling that NEPA requires consideration of an alternative that allocates more than a third of the RARE II acreage to wilderness, since all the acreage studied satisfies the minimum criteria for wilderness designation and there is no reasonable explanation for the methodology used to select the acreage so designated.

The Ninth Circuit also affirms the district court's ruling that the Forest Service violated NEPA by not circulating for public comment a supplemental draft EIS describing the action actually proposed although it relies on a different standard. It concludes that a draft supplement describing the proposed action must be prepared and circulated to the public when the proposed action differs sufficiently from the alternatives contained in the draft EIS. The court also rules that the Forest Service did not adequately respond to public comments on site-specific designations. However, the district court erred in holding that the Forest Service improperly changed its announced method for evaluating public comment.

The court also (1) rules that §6 of the National Forest Management Act (NFMA) does not exempt the RARE II areas from compliance with NEPA, (2) finds it unnecessary to consider whether RARE II non-wilderness designations were made in violation of NFMA, (3) rejects the argument that the final EIS is legally insufficient to support the wilderness designations since it is legally insufficient to support the non-wilderness designations, (4) rules that California has standing because it has alleged sufficient injury-in-fact to interests within the zone protected by NEPA, and (5) affirms the district court's rejection as untimely of Webco Lumber Company's motion to intervene as of right under FED. R. CIV. P. 19(a).

Counsel for Appellants
Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Counsel for Appellants-Intervenors
Ronald Zumbrun, C.M. Starr
Pacific Legal Foundation
455 Capitol Mall, Sacramento CA 95814
(916) 444-0154

Counsel for Appellee
Robert Wright, Ass't Attorney General
555 Capitol Mall, Suite 350, Sacramento CA 95814
(916) 445-4334

Trent W. Orr
Natural Resources Defense Council, Inc.
25 Kearney St., San Francisco CA 94108
(415) 421-6561

Before TANG and ALARCON, Circuit Judges and KELLAM*, District Judge.