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Save the Yaak Comm. v. Block

ELR Citation: 18 ELR 20869
Nos. No. 86-3808, 840 F.2d 714/27 ERC 1687/(9th Cir., 03/01/1988, 05/11/1988) Rev'd

The court holds that the United States Forest Service violated the National Environmental Policy Act (NEPA) in conducting a road construction project and related timber sales in the Kootenai National Forest in Montana, and the Endangered Species Act's (ESA's) 60-day notice provision is jurisdictional. The court first holds that the Forest Service's environmental assessments (EAs) for portions of the road reconstruction were inadequate. The EAs were not prepared to examine environmental impacts, but to evaluate techniques for maintaining the road. In addition, the EAs do not adequately discuss the effect of the project on wildlife, having only five brief sentences that do not analyze adverse impacts. The biological assessment (BA) for the project prepared pursuant to the ESA was insufficient to fill these gaps, even though it supplemented the EAs. The court holds that the EAs were untimely, since the reconstruction contracts were awarded prior to the preparation of the EAs and construction had already begun by the time the BA was prepared. The court next holds that the road reconstruction and the timber sales were connected actions within the meaning of the Council on Environmental Quality's NEPA regulations, and were therefore required to be considered together in a single EA or environmental impact statement (EIS). The reason for the road reconstruction was increased logging activity in the area, and the Forest Service rejected the no action alternative to the road project because of the accelerated timber harvest. The cost-benefit analysis of the road considered timber as the only benefit. Although the Forest Service argues that the road will yield other benefits, such as recreation, it has not demonstrated that other benefits would justify the road in the absence of timber sales. Moreover, the completion of each segment of the road was tied to a specific timber contract. The court holds that the cumulative impacts of the reconstruction and the timber sales may require preparation of an EIS, since there is an inextricable nexus between the road construction and the logging operations.

The court rules that the ESA's 60-day notice provision is jurisdictional, relying on a decision by another panel of the Ninth Circuit regarding the similar provision in the Resource Conservation and Recovery Act. The court holds that plaintiffs have failed to comply with the 60-day notice provision. Letters to the Kootenai National Forest supervisor and regional director of the Fish and Wildlife Service do not satisfy the notice requirements, since they did not specifically give notice of an ESA violation or of an intention to sue. Moreover, the ESA requires that notice be sent to the Secretary of the Interior. Although plaintiffs did notify the Secretary, they sent the notice only 38 days before filing their complaint.

The court holds that the balance of harms justifies an injunction against further reconstruction and timber sales. There is nothing in NEPA to indicate that Congress intended to limit the court's equitable discretion, and the risk of environmental injury to grizzly bear populations and caribou habitat is sufficiently likely that an injunction is appropriate. There is no evidence that third parties would be irreparably injured by an injunction.

[The court's earlier superseded opinion is published at 18 ELR 20608. The district court's opinion is published at 16 ELR 20968.]

Counsel are listed at 18 ELR 20608.

Before Wallace and Fletcher, JJ.