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Friends of the Wild Swan v. U.S. Forest Serv.

ELR Citation: 26 ELR 20908
Nos. No. 94-1455-JO, 910 F. Supp. 1500/(D. Or., 11/09/1995)

The court holds that environmental groups that sought an injunction and declaratory judgment that the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) by failing to protect endangered bull trout populations and habitats, were not required to exhaust administrative remedies or to meet finality requirements under the Administrative Procedure Act (APA), and stated an unreasonable delay claim that was ripe for review. The court first holds that referral to the agency of the issue of reasonable compliance with the NFMA is not necessary. Whether the Forest Service is complying with its statutory mandate to protect the bull trout within a reasonable time period is a question for the court to determine based on a legal determination of the NFMA and a factual examination of the Forest Service's actions. The court next holds that the environmental groups are not required to exhaust their administrative remedies before filing suit in district court. The groups do not challenge the reasons underlying the land and resource management plans, but seek to compel the Forest Service to comply with the NFMA. There is no stautory or administrative procedure for this type of challenge, and referral to the agency is necessary only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. The court next holds that there is evidence that the Forest Service may be unreasonably delaying, in violation of the APA, affirmative action in favor of protecting the bull trout. The Forest Service has know since 1993 that the trout is significantly threatened throughout its range by activities on federal forest lands. Therefore, if the case is ripe, the court will retain jurisdiction. The court next finds that the environmental groups' claim of unreasonable delay is ripe for review. The Forest Service has not definitively responded to information it received in 1993 concerning the threatened status of the bull trout, even though the status of the entire species is at stake. Finally, the court holds that ripeness and finality considerations require it to limit its role to determining only whether the Forest Service's pace in developing a strategy to provide for the viability of the bull trout is unreasonably lagging. The Forest Service is in the process of developing plans for the viability of the bull trout, therefore, the environmental groups cannot identify a final agency action with respect to their NEPA and NFMA claims that is ripe for review.

Counsel for Plaintiffs
Gary K. Kahn
Reeves & Kahn
610 SW Alder St., Rm. 910, Portland OR 97205
(503) 227-5144

Counsel for Defendants
Stephanie M. Parent
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000