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Resources Ltd. v. Robertson

ELR Citation: 24 ELR 20026
Nos. No. 92-35047, 8 F.3d 1394/37 ERC 2111/(9th Cir., 11/03/1993) Aff'd in part, rev'd & remanded in part

The court holds that environmental groups have standing to challenge the Flathead National Forest land and resource management plan and the forest-wide environmental impact statement (EIS) prepared under the National Environmental Policy Act, sets aside the U.S. Forest Service's determination that implementation of the plan would not jeopardize the continued existence of listed species, as required under the Endangered Species Act, and upholds the EIS. The court first holds that the groups have standing to challenge the forestwide EIS and the plan. Although the groups cannot point to the precise area of land where their injury will occur, they may challenge the nonsite-specific EIS because there is no requirement of geographic specificity. Moreover, under Idaho Conservation League v. Mumma, 22 ELR 20569 (9th Cir. 1991), to the extent the plan predetermines the future by allowing for the possibility of future development, it represents a concrete injury that the groups must, at some point, have standing to challenge. Next, the court holds that the action is ripe for review, because the groups need not wait to challenge a specific timber sale in the area when their grievance is with the overall plan. Further, any failure on the part of the government in complying with federal environmental law would undermine any future challenges by the groups. The court vacates the Service's decision that the plan's implementation would not jeopardize the continued existence of listed species. The Service relied on the Fish and Wildlife Service's (FWS') biological opinion assessing the likely impact of the proposed action on threatened or endangered species to reach its decision. FWS' opinion was incomplete, however, because FWS failed to apply the "Grizzly Guidelines" to its issued biological opinion. Thus, the court holds that the Service's reliance on FWS' opinion was not justified. Next, the court upholds the forest-wide EIS. Although the EIS did not consider nonfederal cumulative impacts or more specific water quality data, the court does not require consideration of such impacts or data at the programmatic level, as long as the Service analyzes them before specific timber sales. The court holds that the Service considered an adequate range of timber harvest levels for the first decade of the land and resource management plan, and considered a broad range of harvest method alternatives. Finally, the court remands the case to the district court for remand to the Service, and instructs the Service to reinitiate formal consultation with FWS and provide FWS with all the data and information required by regulation.

[The district court's decision is published at 22 ELR 20345. Appellate briefs in this action are digested at PEND. LIT. 66218.]

Counsel for Plaintiffs
Daniel J. Rohlf, Prof.
Northwestern School of Law (Lewis & Clark Law School)
10015 SW Terwilliger Blvd., Portland OR 97219
(503) 768-6600

Counsel for Defendants
Martin W. Matzen, Gary B. Randall
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Intervenor
Thomas R. Lundquist, Steven P. Quarles
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Before Wright and Hall, JJ.