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Lee v. Bergland

Citation: 12 ELR 20432
No. Nos. 80-4560 et al., 673 F.2d 1338/17 ERC 1143/(9th Cir., 02/09/1982)

The court upholds the dismissal of a claim that the United States Forest Service (USFS) violated the National Environmental Policy Act (NEPA) and its own regulations by denying appellants' request for renewal of a residence permit without preparing an environmental report. It notes that courts have no jurisdiction to review actions committed to agency discretion by law, but holds that they do have jurisdiction to review allegations that an agency failed to comply with its own regulations. However, the court finds no such failure by USFS. The programmatic decision to terminate residential permits was made prior to enactment of NEPA and the statute has no retroactive effect. The post-NEPA termination of appellants' permit does not make NEPA applicable because it was not a major federal action. As a result, USFS regulations under § 102(2)(C) relating to "ongoing" projects are also inapplicable.

Counsel for Appellants
H. Cary Stewart
Williams, Jaffe & Stewart
Suite 330, Ocean Pk. Blvd., Santa Monica CA 90405
(213) 450-7488

Counsel for Appellees
James E. White, Ass't U.S. Attorney
650 Capitol Mall, Rm. 2058, Sacramento CA 95814
(916) 448-2331

Before Sneed, Tang, and Pregerson, JJ.