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Friends of the Kalmiopsis v. U.S. Forest Serv.

ELR Citation: 30 ELR 20313
Nos. No. 98-35793, 198 F.3d 253/(9th Cir., 10/15/1999)

The court affirms a district court dismissal of an environmental group's claim that the U.S. Forest Service violated regulations governing off-road vehicle (ORV) use in the Siskiyou National Forest in Oregon. The court first holds that the Forest Service's ORV monitoring did not violate 36 C.F.R. §295.5, the Siskiyou land resource management plan (LRMP), or the National Forest Management Act. The only evidence of the Forest Service's ORV monitoring is a one-sentence observation in some monitoring reports. Similarly, the only evidence that the Forest Service conducted the required annual review of the ORV plan for the LRMP is the declaration offered by one Forest Service employee that the Forest Service did annually review the ORV plan. Although this lax monitoring is unlikely to expose potential problems caused by ORVs, it does not constitute a complete failure to perform a legally required duty that would trigger review under the Administrative Procedure Act, 5 U.S.C. §706(1). Further, there is no imminent agency action hinging on the result of the allegedly deficient monitoring reports and annual plan review. Moreover, there is no requirement that the Forest Service prepare a written annual review of its ORV management plans.

The court next holds that it cannot review whether a Forest Service employee acted arbitrarily and capriciously by erroneously opening to ORV traffic a gate that should have been closed. The employee's unintentional opening of the road in violation of the road closure order is not a final agency action.

The full text of this decision is available from ELR (10 pp., ELR Order No. L-172).

Counsel for Plaintiffs
Michael R. Sherwood
Earth Justice Legal Defense Fund
180 Montgomery St., Ste. 1400, San Francisco CA 94104
(415) 627-6700

Counsel for Defendant
Samuel D. Rauch III
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000