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Friends of the Bow v. Thompson

ELR Citation: 27 ELR 21518
Nos. 96-1460, 124 F.3d 1210/(10th Cir., 08/27/1997)

The court holds that the U.S. Forest Service timber sale in Medicine Bow National Forest properly complied with the "brief statement" and "reasonable time" requirements of the Administrative Procedure Act (APA). The court first holds that the Forest Service decision approving the timber sale was not arbitrary and capricious in the two respects alleged by the environmental group. First, the decision to implement the chosen alternative was consistent with the evidence before the Forest Service at the time of the decision. The environmental group offered no evidence that the decision to implement the chosen alternative was contrary to the evidence before the agency. Second, the court considers the environmental group's claim that the Forest Service did not adequately consider sustainable yield principles in deciding to implement the chosen alternative. As an initial matter, the court rejects the Forest Service contention that forest plan level concerns, such as sustainable yield, may not be considered at the time of an individual sale decision. However, the environmental group has not pointed to anything that indicates that the proposed sale implicates sustainable yield concerns. The court next holds that it was not arbitrary and capricious for the Forest Service to decline to supplement the environmental assessment (EA) for the sale. The 55 percent reduction in sale volume did not constitute a substantial change in the action relevant to environmental concerns. The environmental group did not show significant new circumstances or information bearing on the environmental impacts of the sale. The environmental group pointed to an internal Forest Service document prepared for the purpose of assessing timber conditions in Medicine Bow. However, the document was abandoned a full year before the EA was released and the timber sale consummated. The court also holds that the Regional Forester's appeal decision provides sufficient detail to satisfy the brief statement requirement of the APA, 5 U.S.C. §555(e). The appeal decision provided the environmental group with an adequate explanation why it rejected the other alternatives.

The court next holds that the Forest Service did not violate §555(b) by failing to provide a prompt response within a reasonable time to a matter presented to it in a letter from the environmental group. Section 555(b) applies to all matters presented to the agency. For the purposes of the court's opinion, §555(b), applies to the letter sent by the environmental group to the Forest Service. Nonetheless, even assuming §555(b) applies to the letter, the agency's response to the letter substantially complied with the requirements of the section, as well as the brief statement requirement of §555(e). Thus, the only question is whether the supplemental information report (SIR) was issued within a reasonable time as required by §555(b). Courts have occasionally granted mandamus to force agencies to act where there has been no response to a request for agency action. But, in this case, the agency did act by issuing the SIR. In cases where agencies acted, courts have declined to overturn agency action on the basis of the delay in situations where the agency took much longer to respond than the approximately one-year period at issue here. The court concludes that the environmental group is not a "prevailing party," and thus is not entitled to fees and costs under the Equal Access to Justice Act.

Counsel for Plaintiffs
Reed Zars, Prof.
University of Wyoming
College of Law
P.O. Box 3035, Laramie WY 82071
(307) 766-1121

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

Before Henry and Briscoe, JJ.