Alabama v. United States Forest Service

No. CV 79-M-0988 (N.D. Ala. February 27, 1981)

The court rules that the rerouting of a hiking trail in the Talladega National Forest is not a major federal action requiring preparation of an environmental impact statement (EIS). A hiking trail built in the early 1960s was relocated in 1976 as part of a larger trail system. Plaintiffs challenged the adequacy of an EIS to be prepared for the Talladega Scenic Drive, which includes the trail, arguing that the EIS will be improperly based on the new trail system rather than the system prior to relocation, thus limiting consideration of alternatives. The court rules that plaintiffs may not challenge the EIS before it is issued. In addition, the court rules that an EIS on the trail relocation is unnecessary because the relocation is not a major federal action having a significant impact on the human environment.

Counsel for Plaintiffs
James R. Cooper Jr.
Cooper & Cooper
312 Scott St., Montgomery AL 36104
(205) 262-4887

Charles Graddick, Attorney General; L. Gilbert Kendrick, Benjamin Cohen, Ass't Attorneys General
250 State Administrative Bldg., Montgomery AL 36130
(205) 834-5150

Counsel for Defendants
J. R. Brooks, U.S. Attorney; Caryl Privett, Henry Frohsin, Ass't U.S. Attorneys
Rm. 200, Fed'l Cthse., Birmingham AL 35203
(205) 254-1785

Ronald G. Gluck
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

James B. Snow
Natural Resources Division, Office of the General Counsel
Department of Agriculture, Washington DC 20250
(202) 447-2619

[11 ELR 20779]

McFadden, J.:

Order

This cause came before the court at a regularly scheduled motion docket on the motions of all plaintiffs and defendants for summary judgment. Upon consideration of the motions, pleadings, briefs, exhibits and oral arguments of counsel, the court is of the opinion that the motion of all defendants for summary judgment is due to be granted and the motions of all plaintiffs is due to be overruled.

Accordingly, in conformity with the memorandum opinion entered contemporaneously, it is ORDERED, ADJUDGED and DECREED that defendants' motion for summary judgment is due to be and the same hereby is granted, and that the plaintiffs' motion for summary judgment is due to be and the same hereby is overruled.

Memorandum Opinion

This lawsuit challenges the action of the Forest Service of the United States Department of Agriculture in rerouting a three-mile portion of the Odum Scout Trail, a hiking trail in the Talladega National Forest. Plaintiffs are the State of Alabama, the Attorney General of the State of Alabama, Charles Graddick, and two groups of Boy Scouts. Defendants are the Forest Service, the Secretary of Agriculture and the Forest Supervisor of the Talladega National Forest, Arthur Woody. Plaintiffs maintain that the relocation violated the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 (hereinafter NEPA), because it limited the alternatives to be considered in drafting the Environmental Impact Statement (hereinafter EIS) currently being prepared for the Talladega Scenic Drive, proposed to traverse a section of the Talladega National Forest. The action is before the court on separate motions of the plaintiffs and the defendants for summary judgment.

The material facts are not in dispute. The Choccolocco Council of the Boy Scouts cleared the Odum Scout Trail in the early 1960s. The blazing of the trail was a private undertaking, done with the approval of the Forest Service. The Forest Service relocated the trail in 1976 as part of a larger project begun in 1974 to establish the Pinhoti Trail System, a series of hiking and camping trails in the Talladega National Forest. In the course of planning the Pinhoti Trail System, the Forest Service assessed the relationship of existing trails to the overall proposed system. The Forest Service determined that some of the Odum trail would have to be relocated in order to integrate it into the Pinhoti System, to avoid potential conflicts with the proposed Talladega Scenic Drive and to correct a number of existing physical problems.

The Forest Service did not prepare an EIS for either the building of the Pinhoti Trail System or the relocation of the Odum Scout Trail because Arthur Woody determined that neither project was a major federal action significantly affecting the human environment. However, the Forest Service is preparing an EIS for the entire Talladega Scenic Drive which includes the trial.¹

In this action, plaintiffs indirectly challenge the rerouting of the Odum Scout Trail. They maintain that the rerouting "limits the choice of alternative routes for the Talladega Scenic Drive." In effect, plaintiffs argue that the EIS when issued will be insufficient because it will be based upon consideration of trail routes as they exist now, rather than as they existed before relocation. Thus, the plaintiffs seek to challenge the adequacy of the EIS before it is issued.

Apparently, no court has directly faced the question of whether the adequacy of an EIS may be challenged before it is issued. There is dicta, however, that such a challenge is premature. In Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718 [6 ELR 20532] (1976), Justice Powell suggested that a challenge to an EIS will not be ripe until the EIS is issued:

This is not to say that § 102(2)(C) imposes to duties upon an agency prior to its making a report or recommendation on at [sic] proposal for action. This section states that prior to preparing the impact statement the responsible official "shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." Thus, the section contemplates a consideration of environmental factors by agencies during the evolution of a report or recommendation on a proposal. But the time at which a court enters the process is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement. This is the point at which an agency's action has reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption.

Id., 427 U.S. at 406 n.15 (emphasis added). See also Atchison, Topeka & Sante Fe Ry. v. Callaway, 431 F. Supp. 722 [7 ELR 20377] (D.D.C. 1977) (challenge to the adequacy of an EIS would not be ripe before the EIS was issued, but held that the action was ripe because the EIS had been issued). It follows from Kleppe that plaintiffs' challenge to the EIS being prepared for the Talladega Scenic Drive is not ripe.

Plaintiffs make an independent argument that the Forest Service should have prepared an EIS for the relocation of the trail itself. To sustain this argument plaintiffs must show the relocation was a "major" federal action having "significant" environmental impact.

In Township of Ridley v. Blanchette, 421 F. Supp. 435 [7 ELR 20184] (E.D. Pa. 1976), the term "major" was defined:

Those cases which have found the existence of major federal action have ordinarily involved highway extensions, large structures which alter the neighborhood, major [11 ELR 20780] dams or river projects, and other projects which can generally be characterized as involving sizeable federal funding (over one-half-million dollars, and usually well over one million), large increments of time for the planning and construction stages, the displacement of many people or animals, or the reshaping of large areas of topography.

In sum, "major" is a term of reasonable connotation, and serves to differentiate between projects which do not involve sufficiently serious effects to justify the costs of completing an impact statement, and those projects with potential effects which appear to offset the costs in time and resources of preparing a statement.

Id. at 446. And, with respect to "significant," the court explained that the action must be,

"significant" in the sense of total environmental impact, which . . . [is] broken down into long-term adverse effects, unavoidable short-term effects, unusual changes in noise levels, waste and sewage and the degree of irreversible damage.

Id. at 447.

To reroute the trail the Forest Service merely posted directional signs pointing to the new route and screened the old route. Consequently, the relocation of the scout trail did not involve sizeable federal funding, nor did it require the commitment of significant resources. The relocation of the trail did not have a "significant" impact on the environment. Screening the old trail route and posting new directional signs could not have had short-term or long-term "adverse effects" or have caused irreversible damage to the environment. In short, the rerouting of three miles of a Boy Scout hiking trail is not the kind of federal action for which an EIS must be prepared.

For the foregoing reasons, the plaintiffs' motion for summary judgment is due to be denied and the defendants' motion is due to be granted.

1. The EIS is the result of another lawsuit involving the Talladega Scenic Drive, The Alabama Conservancy v. Federal Highway Administration, No. 76-M-1616-S (N.D. Ala. 1976). The plaintiffs in that case sued under NEPA to force the Highway Administration to prepare an EIS for the Drive. The parties to the suit stipulated to a dismissal on December 28, 1976, agreeing that the government would prepare an EIS for the remaining fifty miles of road to be built. The EIS has not been completed.