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Sharps v. U.S. Forest Serv.

ELR Citation: 23 ELR 21578
Nos. No. 91-5101, 823 F. Supp. 668/(D.S.D., 03/26/1993)

The court holds that the issuance of an October 1990 decision memo by the Fall River District Ranger, which implemented an August 1989 decision notice issued by the Forest Supervisor requiring consolidation of black-tailed prairie dog colonies in the Nebraska National Forest, does not violate the National Environmental Policy Act (NEPA), National Forest Management Act (NFMA) regulations, or the Administrative Procedure Act (APA). The court first holds that a wildlife biologist has standing, because his general allegations that the October decision would adversely affect the presence of an animal species he wishes to continue studying were sufficient to demonstrate injury-in-fact. The court notes that such general allegations, although sufficient to survive the U.S. Forest Service's motion to dismiss, would not be sufficient to survive a motion for summary judgment, which requires the allegation of specific facts demonstrating a direct injury to the plaintiff. The court holds that the Ranger's decision not to prepare an environmental assessment (EA) or an environmental impact statement (EIS) was not arbitrary or capricious, because the October 1990 decision memo did not constitute major federal action under NEPA. The Ranger has limited discretion in implementing the August 1989 decision notice and addressing the biologist's concerns. The court notes that even if NEPA were to apply, the Ranger is not required to issue a supplemental EIS, because the biologist failed to establish the need for one. He did not allege that the October 1990 decision will entail new environmental impacts not adequately considered by either the programmatic EIS in place for the Nebraska National Forest or the EA prepared for the August 1989 decision, which revealed no new or significant environmental impacts. The court also holds that the Ranger's decision memo, as a district plan, did not violate the NFMA regulations regarding §6 land and resource management plans. Those regulations apply only to forest or regional plans, not a district plan. Finally, the court holds that the biologist's APA claim fails for the reasons NEPA and the NFMA claims fail, because it derives from the substantive claims asserted under NEPA and the NFMA. The court concludes by noting that the biologist's concerns could have been addressed in the context of an administrative appeal of the August 1989 decision notice, of which judicial review is precluded by the biologist's failure to exhaust his administrative remedies.

Counsel for Plaintiff
James F. Margadant
Sieler & Trimble
717 Kansas City St., Rapid City SD 57701
(605) 343-6442

Counsel for Defendants
Robert A. Mandel, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse., 515 9th St., Rm. 317, Rapid City SD 57701
(605) 342-7822