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Earth First v. Block

ELR Citation: 13 ELR 20972
Nos. No. 83-6928-ME-RE, 569 F. Supp. 415/(D. Or., 07/15/1983)

The court issues a preliminary injunction restraining the Forest Service and its contractor from conducting activities that will affect the wilderness character of the North Kalmiopsis Roadless Area before completing an environmental impact statement (EIS) as required by the National Environmental Policy Act (NEPA). The court first rules that the government is estopped from contending that the second nationwide roadless area review and evalution (RARE II) EIS complied with NEPA since it litigated and lost that issue in a previous case, California v. Block, 13 ELR 20092. The Forest Service's Rogue-Illinois Planning Unit EIS, which covers the Kalmiopsis area, does not cure the defective part of the RARE II EIS, but rather relies upon it. Like the RARE II EIS, it fails to make site-specific consideration of areas designated as non-wilderness. Collateral estoppel aside, California v. Block as precedent requires the court to find the RARE II and Rogue-Illinois EISs insufficient.

The defendants argue that because some of the plaintiffs were party to a prior suit, 13 ELR 20177, challenging road building in the North Kalmiopsis and because plaintiffs failed to raise the California v. Block issues in that suit, they should be barred from raising them now. The court first rules that some plaintiffs in the present suit were not party to the prior suit, and those plaintiffs at least are entitled to relief. Also, the prior suit did not proceed to a final decision on the merits but was dismissed by agreement of the parties after California v. Block was decided. Finally, preclusion will not serve judicial economy since defendants are precluded from contesting the California v. Block claims.

Further, the court rules that Congress' designation of nearby areas as wilderness does not by implication release the North Kalmiopsis from wilderness consideration. Nor does a congressional line item appropriation for construction of a road in the area implicitly release the project from NEPA compliance. Finally, the court rules that plaintiffs have satisfied the requirements for a preliminary injunction.

Counsel for Plaintiffs
Neil S. Kagan
P.O. Box 2447, Roseburg OR 97470
(503) 673-6682

James A. Arneson
Arneson & Wales
P.O. Box 2190, Roseburg OR 97470
(503) 673-0696

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main St., Portland OR 97205
(503) 221-2101

Robert A. Simons, Special Ass't U.S. Attorney
Department of Agriculture, 1220 SW 3d Ave., Rm. 1734, Portland OR 97204
(503) 221-3115