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Methow Valley Citizens Council v. Regional Forester

ELR Citation: 16 ELR 20641
Nos. No. 85-2124-DA, (D. Or., 04/30/1986) CAA, forest management claims

The court holds that the Forest Service did not violate either the Clean Air Act or the National Forest Management Act (NFMA) when it issued a special use permit for a ski resort development in the Okanogan National Forest prior to adoption of the NFMA plan. The court holds that plaintiffs, environmental and citizen groups composed of residents and recretional users of the affected valley, need not rely on the Clean Air Act's citizen suit provision for their claim that the Forest Service violated §176 of the Act prohibiting federal agencies from issuing permits for activities that violate state implementation plans (SIPs). Neither of the two cases cited by defendants holds that the citizen suit provision is the only source of subject matter jurisdiction to enforce §176.

On the merits, the court holds that the Forest Service has not violated §176. Even if the permit could lead to secondary development of lodgings with woodburning stoves that would increase the emission of total suspended particulates beyond the prevention of significant deterioration (PSD) standard, no provision of the Washington SIP has been violated. Emissions over the allowable PSD increment do not automatically result in an enforceable SIP violation where the SIP does not regulate the pollution source, and the Washington SIP does not regulate wood-burning stoves.

The court rules that the Forest Service may rely on pre-NFMA forest management plans while awaiting adoption of the more comprehensive NFMA management plan for each national forest. Plaintiffs' reliance on one subsection of §6 requiring that plans developed pursuant to the section shall form an integrated plan for each national forest unit does not compel a contrary result, since it does not prohibit interim planning prior to adoption of the final plan. Moreover, another subsection clearly permits use of existing plans.

Counsel for Plaintiffs
David A. Bricklin
Bricklin & Gendler
Ste. 1015, Fourth and Pike Bldg., Seattle WA 98101
(206) 621-8868

Larry Sokol, Molly Holt
Jolles, Sokol & Bernstein
721 S.W. Oak St., Portland OR 97205
(503) 228-6474

Counsel for Defendants
Charles H. Turner, U.S. Attorney
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 S.W. Main St., Portland OR 97204
(503) 221-2101

Robert M. Simmons, Special Ass't U.S. Attorney
Dept. of Agriculture
1220 S.W. Third Ave., Rm. 1734, Portland OR 97204
(503) 221-2725

Glenn J. Amster, Sarah Mack
Hillis, Cairncross, Clark & Martin
403 Columbia St., Seattle WA 98104
(206) 623-1745

Christopher W. Angius
Ball, Janik & Novak
Ste. 1100, 101 S.W. Main St., Portland OR 97204
(503) 228-2525