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Swanson v. U.S. Forest Serv.

ELR Citation: 26 ELR 21466
Nos. 95-35090, 87 F.3d 339/(9th Cir., 06/24/1996)

The court holds that the U.S. Forest Service complied with the National Environmental Policy Act's (NEPA's) requirement that it take a "hard look" at the environmental consequences of proposed timber harvests and sales in two areas of the Nez Perce National Forest. The Forest Service examined the effect the actions would have on chinook salmon and other threatened, endangered, sensitive, and big-game indicator species. The Forest Service also considered the proposed activities' cumulative impacts and discussed their effect on roads, trails, trailheads, fishing, hunting, snowmobiling, commercial outfitting services, and off-highway wheeled vehicles. The court further holds that the subsequent listing of certain chinook salmon populations as threatened was not a significant new circumstance that required a supplemental environmental impact statement. The Forest Service's finding that it was unlikely that the proposed action would have a negative impact on the salmon was not premised on the populations' nonthreatened status; therefore, the determination that the populations were threatened did not constitute new information that would show that the timber harvests and sales were likely to significantly affect the environment's quality. Also, the Forest Service complied with the National Forest Management Act's requirement that species in the areas affected by the proposed activities be monitored adequately. The court notes that to the extent that plaintiffs challenge the Forest Service's failure to comply with Forest Service Manual requirements, those requirements do not have the independent force and effect of law. Last, the court holds that the district court properly dismissed plaintiffs' claim that the Forest Service violated the Federal Water Pollution Control Act (FWPCA) by failing to comply with state water quality standards, and that the district court properly denied plaintiffs' motion to amend its complaint. The complaint did not discuss the Administrative Procedure Act (APA), the statute that would entitle plaintiffs to relief from the Forest Service's alleged FWPCA violation, and plaintiffs failed to timely amend their complaint to state a claim under the APA.

Counsel for Plaintiffs
D. Bernard Zaleha
Zaleha Law Office
408 Simplot Bldg.
805 W. Idaho St., Boise ID 83701

Counsel for Defendants
Christine Everett
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530

Before: D.W. NELSON and JOHN T. NOONAN, Jr., Circuit Judges, and TANNER, District Judge.*