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Wyoming Outdoor Council v. U.S. Forest Serv.

ELR Citation: 29 ELR 20495
Nos. 97-5317, 165 F.3d 43/(D.C. Cir., 01/15/1999)

The court upholds the U.S. Forest Service's decision to authorize oil and gas leasing in the Shoshone National Forest in Wyoming. Environmental groups claimed that the Forest Service violated its own regulations and the National Environmental Policy Act (NEPA) when it made lands available for leasing by the Bureau of Land Management (BLM) without first completing three requirements of a mandatory site-specific environmental review of the proposed leases. The court first holds that the groups' NEPA claim is not ripe. The point of irreversible and irretrievable commitment of resources and the Forest Service's concomitant obligation to comply with NEPA do not mature until leases are issued. The groups, however, brought their NEPA action before any leases had been issued by the BLM. In addition, prudential considerations of avoiding hasty judicial intervention into a matter also support the conclusion that the groups' NEPA claim was premature. Moreover, withholding consideration of the NEPA claim will not result in hardship to the parties, because the groups may pursue their NEPA claim as of the date of lease issuance.

The court next holds that the groups have standing to claim that the Forest Service violated its regulations. The land of concern is in genuine danger, and the impending threat of injury is sufficiently real to constitute injury-in-fact. Further, the claim is ripe. While the Forest Service may undertake further efforts to comply with NEPA, it has completely and finally implemented the procedures that the groups assert are inconsistent with Forest Service regulations.

The court, however, defers to the Forest Service's interpretation of its regulation. The groups are correct that the regulation at issue, 36 C.F.R. §228.102 (1996), is ambiguous. While the most natural reading of 36 C.F.R. §228.102's "subject to" phrase may be that the three requirements will be met before a "specific lands" decision on the leases is made, the alternative reading—that the three requirements may be verified after the specific lands decision is made, but before the decision is implemented and leases for specific parcels are approved—is not plainly erroneous. Similarly, the surrounding regulatory text does not indicate that the Forest Service's construction is plainly erroneous.

Counsel for Appellants
Susan D. Daggett
Earth Justice Legal Defense Fund
400 Magazine St., Ste. 401, New Orleans LA 70130
(504) 522-1394

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

Before Williams and Garland, JJ.