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13 ELR 20177 | Environmental Law Reporter | copyright © 1983 | All rights reserved Sierra Club v. BlockNo. 82-1006 FR (D. Or. August 30, 1982)The court denies plaintiffs' motion for a preliminary injunction to halt construction of Bald Mountain Road in the Siskiyou National Forest in Oregon pending resolution of its National Environmental Policy Act challenge to the Forest Service's (USFS's) finding of no significant impact concerning the road project. USFS had prepared a programmatic environmental impact statement (EIS) on its plan to manage the Rogue-Illinois Planning Unit for timber harvesting and other non-wilderness uses, and later decided not to prepare a site-specific EIS for the Bald Mountain Timber Sale and Road Project, a part of the plan. After reviewing the programmatic EIS, the court rules that USFS gave adequate consideration to the environmental effects of the proposed road construction and thus reasonably determined not to prepare a site-specific EIS. The court also finds that the road project is not a major federal action, but a part of the federal action already addressed in the EIS. The court concludes that plaintiffs failed to establish a likelihood of success on the merits and the balance of irreparable harm favors defendants. Thus the public interest is served by denying the preliminary injunction motion. Counsel for Plaintiffs Counsel for Defendants Leonard B. Netzorg Frye, J.: Plaintiffs seek a preliminary injunction restraining defendants from constructing Bald Mountain Road, near to but outside the northern boundary of the Kalmiopsis Wilderness Area located in the Rogue-Illinois Planning Unit of the Siskiyou National Forest in southwestern Oregon. At one time the land within the Rogue-Illinois Planning Unit was designated a "roadless area." Then, in early 1979, the Secretary of Agriculture, pursuant to congressional mandate, determined that the North Kalmiopsis roadless area (outside the Kalmiopsis Widerness Area) would be managed for non-wilderness uses including timber harvesting. Road construction to provide access to the timber is a necessary part of timber harvesting. On October 12, 1979 the Rogue-Illinois Planning Unit Final Environmental Impact Statement (EIS) was released by the Forest Service. It concluded that lands located in the Bald Mountain Project Planning Area would be allocated to Management Area 1 in the EIS. Management Area 1 allows timber harvesting. No administrtive or court review of this EIS was sought. After completion of the EIS, the Forest Service then turned to implementing its Plan. On February 26, 1981 an Environmental Assessment (EA) on the Blad Mountain Timber Sale and Road Project ws concluded and a Finding of No Significant Impact (FONSI) was signed. On July 13, 1982 the Forest Service awarded a road construction contract for construction of the first seven miles of the Bald Mountain Road. Work on the road construction is proceeding. Plaintiffs want this court to halt construction of the Bald Mountain Road by way of a preliminary injunction pending a final decision on the merits. Standing for Granting Preliminary Injunction The court will use the three-part test approved by the Ninth Circuit in recent environmental decisions. That test is: 1. Have the plaintiffs established a strong likelihood of success on the merits; 2. Does the balance of irreparable harm favor the plaintiffs; 3. Does that public interest favor granting the injunction. National Wildlife Federation v. Adams, 629 F.2d 587, 590 [10 ELR 20959] (9th Cir. 1980); City of Anaheim v. Kleppe, 590 F.2d 285, 288, n.4 (9th Cir. 1978); Sierra Club v. Hathaway, 579 F.2d 1162, 1167 [8 ELR 20736] (9th Cir. 1978). Likelihood of Success on the Merits In order to determine this issue the court must review the EIS, the EA, and the FONSI. The proper standard by which to review these documents is whether the defendants faithfully followed the procedures required by the National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321, et seq.; Lathan v. Brinegar, 506 F.2d 677 [4 ELR 20802] (9th Cir. 1974). The court may not and shall not substitute its judgment for that of the Forest Service as to the environmental consequences of the Forest Service's actions solong as the proper procedures were followed and the Forest Service considered the environmental consequences of its acts. Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718 [6 ELR 20532] (1976). The Forest Service used a method of environmental evaluation known as "tiering," a method specifically endorsed by the Council on Environmental Quality. See 40 C.F.R. § 1502.20 (1981). Under this method, an agency develops a long-range general plan for a large area. A "programmatic" EIS is prepared to discuss the overall environmental effects of the entire plan. When an individual project is implemented pursuant to the plan, an EA is prepared. The EA is designed to "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or [whether to make] a finding of no significant impact." 40 C.F.R. § 1508.9 (1981). If the EA indicates that certain significant environmental impacts have not been addressed in the programmatic EIS, a supplemental or site-specific EIS may be required to comply with NEPA. See, Ventling v. Bergland, 479 F. Supp. 174 (D.S.D. 1979). If, however, the EA indicates that there are no significant environmental impacts or that the significant environmental impacts have already been addressed in the EIS, the agency then makes a FONSI. Pursuant to the "tiering" plan, the Forest Service prepared a programmatic EIS concerning its plan for forest management of the Rogue-Illinois Planning Unit. When the Forest Service was ready to begin the Bald Mountain Timber Sale and Road Project within the Rogue-Illinois Planning Unit, the Forest Supervisor issued a FONSI based upon an EA prepared on this specific project. The Bald Mountain Project contemplates construction of 10.9 miles of new road and reconstruction of 1.5 miles of existing road. This road will run essentially along the northern boundary of the Kalmiopsis Wilderness Area, in some places coming as close as five feet to the Illinois River Trail, a hiking trail which also runs along the boundary of the wilderness area. The Forest Service proposes to move portions of the Illinois River Trail away from the road. Plaintiffs contend that construction of this road is a major federal action significantly affecting the environment and thus requiring a site-specific EIS. Defendants contend that the programmatic EIS for the Rogue-Illinois Planning Unit sufficiently discusses the environmental effects of allowing timber harvesting, which necessarily includes road building, so that a site-specific EIS for building this road is not required. This court must determine if the Forest Service acted reasonably in determining not to prepare a site-specific EIS. Portela v. Pierce, 650 F.2d 210 [11 ELR 20792] (9th Cir. 1981). To do so, the court will look to the programmatic EIS to determine if the impacts of road construction have been considered and addressed. The EIS discusses five alternative and the effects of implementation of each. The alternatives range from no change/no action to intensive commodity production. Alternative D, which is the choice of the Forest Service, discusses the environmental effects or potential environmental effects resulting from this alternative and some of the actions to be employed to minimize these effects. For example, (1) The effect of road construction on air quality is addressed. EIS p. 126. (2) The effect of improved road access on fires is addressed. EIS p. 127. (3) The effect of roads upon fisheries is addressed: Use of skyline and helicopter yarding systems in areas having sensitive soils sharply reduces ground disturbance and the size of the road network required. Where roads are constructed, they are constructed as ridgetop systems. Road designs benefit from geotechnical investigations where applicable. Techniques such as ridgetop construction, end-haul of waste materials, and rolled grades are used to reduce potential disturbances. All of these things help insure that sediment loads and possible effects on anadromous fish are minimized at acceptable levels. Under Alternative B, the water quality in Management Areas 11 and 12 will decrease slightly. In the roaded areas, there will continue to be a loss of water quality due to the increasing logging pressure. Under Alternatives C, D, and E, water quality in terms of sediment levels, temperature, and other variables will remain unchanged. For the Unit as a whole, the distribution of effects will be less concentrated. Water quality in streams flowing through roadless areas will decline somewhat while water quality in streams flowing through developed areas will improve marginally. (4) The effect of roads on historic and archeological areas is addressed: This alternative should not have any significant effects on historical or archeological sites. The project planning process for any ground-disturbing activities will include an on-the-ground inventory of cultural resource sites, districts, object and structures, as required by Executive Order 11593. . . . (5) The effect of roads on minierals is addressed: Relative to the present, this alternative will have little, if any, effect on the availability of important commercial minerals or lapidary materials. Almost all of the known valuable mineral deposits or mineral-bearing rocks ar located in areas to be accessed by road. This continues present trends. (6) The effect of roads on noise is addressed: [T]here will be a significant change in noise pollution distribution, and noise from mechanical equipment will occur in areas now roadless, including within the Illinois River canyon. Although distant mechancial noises are not likely to be [13 ELR 20179] heard often by recreationists along the Illinois River, they will be heard more frequently by trail hikers. . . . (7) The effect of roads on recreation is addressed: The potential opportunities for developed site recreation (campgrounds, picnicgrounds) and for road-related forms of dispersed recreation (driving for pleasure, hunting, fishing) will be maintained at existing levels. Relative to the present, Alternative B will retain the present lack of noise from mechanical equipment in the roadless areas. Alternatives A, C, D, and E will cause noises from mechancial equipment to occur in areas now roadless, including within the Illinois River canyon. These periodic effects may degrade the quality of some recreationists' primitive experience. Likewise the quality of opportunities for trail hikers will decline somewhat as visual and physical contacts with roads and other developments increase over the present level. However, these effects cannot be avoided if the commodity and other benefits of the roadless areas are to be realized. (8) The effects of roads on soils and water is discussed. EIS p. 129. (9) The effects of roads on vegetation is discussed. EIS p. 130. (10) The effects of roads on wildlife is discussed, namely that periodic entries for silvicultural purposes and recreational use along roads have some potential to harass wildlife species in the area. EIS p. 131. The court has not attempted to write out the entire statements made in the EIS. A review of the 55 written responses to the proposed EIS indicate that road construction is clearly understood to be a part of the forest management plan and that the public had an ample opportunity to address the environmental impacts of roads in general and this road in particular. Examples include: Roading, logging, and mining existing natural areas in the two planning units will have demonstratively negative effects in all of these areas. By broadening the goals of the area to permit more road access . . . you would better serve the majority of the public. No mention has been made of the costs of road construction in the proposed plan. We understand that these roads will be tremendously expensive, and we feel that the economic trade-off should be outlined to support the proposed action. We are also concerned if the Bald Mountain Road is still feasible considering the new boundary of the Kalmiopsis Wilderness. A lot of this country is steep and logging roads will just ruin the land as well as the streams and some great hiking trails, e.g., Illinois River and Silver Peak. Letter No. 19 Consideration of the above . . . will certainly be necessitated before the road corridors indicated for the area in figure 0-3, Road System (page 66) can be implemented as being either desirable or feasible. The two proposed roads, one from the Flat Top Mt. area west to Bald Mountain area, and the other down through Indian Flat and then up the existing Silver Peak Trail would ruin two of the main hiking trails in the area. The Bald Mountain proposed road along the Kalmiopsis wilderness boundary is totally unacceptable. This location seriously compromises the integrity of the Wilderness to the south and is an inefficient access corridor to the timberland to the north. It would appear that extensions of roads 3574 and 3534 would be adequate for access to the Silver Creek area. Likewise the planned road between Indian Flat and Hobson Horn should be abandoned and the area served by extensions of existing road 3536. The prefferred [sic] alternative does not address the costs of these roads. These costs must be considered when assigning alternative values for the best use of the roadless areas in the planning unit. Trails — Illinois river trail & Hobson Horn-Silver Peak. The proposed roads should not be built, not only because of the terrible cost (payable by tax dollars) but because these trails are so recreationally valuable that they cannot be replaced. Water quality, watersheds, fisheries, are of utmost importance, as well as wildlife protection. A peripheral road around the region rather than the proposed Bald Mountain or Hobson Horn-Silver Creek roads is recommended since it would permit access and legitimate logging. Preserve existing hiking trails. Roading, harvesting, and managing the undeveloped portions of these planning units will severely degrade, if not eliminate many of the botanical, wildlife, and fisheries resources now present. It should be pointed out that these roads become a valuable asset and the Forest Service receives full value for the purchaser credits allowed for the construction of these roads. Most of these areas are roadless for reasons of too little timber, ground too steep or tree pockets too small to warrant road building, etc. Some of the reasons for much of the poor stocking levels are past fires, poor soils, moisture stress from exposure to the south and west and brush competition. Until these problems are solved, much of these areas should remain unlogged. Our review indicates that no Forest Highways are involved within the planning unit boundaries. Therefore, we have no comments. For example, the alternatives which would be associated with greater road construction would generally require greater initial energy investment than those alternatives which would require little or no new road construction. However, an alternative which provided for more extensive road construction might still be more energy efficient over the long-term if it resulted in greater efficiency of vehicle use (more direct routes, etc.). Alternative B would give protection as "wilderness" to presently unroaded lands of low timber productivity. These steep hillside may be severely eroded and damaged if they are roaded and logged. Options are up when you punch roads down all the ridge tops and harvest in the very heart of the roadless lands. I suppose this is the plan to attempt to destroy the natural character of the land as quickly as possible. In three "good years" I suppose the F.S. could road all the main ridges in roadless areas; sort of a 4 pronged access corridor attack as schemed on (p. 80). We believe, however, that the proposed plan could be improved by: . . . 3. Providing a more comprehensive and objective impact evaluation of the proposed road network for the 550 additional miles to be constructed under the preferred alternative. Because of the steep terrain (page 3, paragraph 5) and generally unstable soils, road design and location would have a major impact on water quality and run-off patters in the Illinois system. The EIS contains 20 pages of responses to these and other comments. On page 65 of the EIS there is a road mileage chart showing the road mileage in each unit by surfaing type. Figure 0-3 shows the existing road network. The Bald Mountain road is shown as one of two principal entry corridors. While the locations shown by the map are only approximations, there is no evidence that the Bald Mountain road is being constructed significantly differently than as planned. The role of this court is a limited one. It is to determine whether the Forest Service followed the procedures required by NEPA and took a hard look at the environmental consequences of its acts. A preliminary look at the programmatic EIS convinces this court that it has. The intent of the Forest Service to build Bald Mountain road is clear from the EIS. Those who did not prepare the EIS could understand the environmental impacts of building this road and could and did attempt to influence the Forest Service to abandon its plan. Whether the Forest Service's choice to harvest the forest or to build this road in a magnificent wilderness area is a good one is not for this court to decide. In fact, it appears that the Forest Service may be implementing a decision made after long debate in Congress. This court concludes that the Forest Supervisor acted reasonably in determining to issue a FONSI instead of site-specific EIS. This court finds that for the purposes of this motion for preliminary injunction the Bald Mountain Road is merely a first-step implementation of a major federal action and is not itself a major federal action. The major federal action is the determination that the Bald Mountain area will be harvested, which includes road building, rather than remain wilderness and therefore roadless. It is clear from the EIS and from the testimony taken at the hearing that the environmental impacts of this decision were considered by the Forest Service and were addressed by those members of the public choosing to do so. The plaintiffs have not established a strong likelihood of success. The balance of irreparable harm favors the defendants. When plaintiffs have not established a strong likelihood of success, the public interest is served in denying a motion for a preliminary injunction. IT IS ORDERED that plaintiffs' motion for preliminary injunction is DENIED. DATED this 30th day of August, 1982. 13 ELR 20177 | Environmental Law Reporter | copyright © 1983 | All rights reserved |