Pilchuck Audubon Society v. MacWilliams

No. C87-1707R (W.D. Wash. January 15, 1988)

The court holds that a preliminary injunction is appropriate on an environmental group's claims that the Forest Service failed to publish a proper notice of its decision to reoffer a timber contract in an old-growth area of a national forest, the resale violates the Service's clearcutting guidelines and National Forest Management Act (NFMA) regulations, and the Service's failure to update an eight-year-old environmental assessment (EA) violates the National Environmental Policy Act (NEPA). The court first holds that plaintiff is likely to prevail on its claim that the Forest Service did not provide a proper notice of decision concerning the timber resale. The notice provided by the Service identified this contract as not subject to administrative appeal, and both the prospectus and the newspaper advertisement neglected to mention the decision to resell. Moreover, the Service acknowledges that it never issued a notice of decision. That the original 1979 decision to sell the timber remains unchanged does not negate the right of appeal, given a recent Ninth Circuit decision holding that reoffers of returned timber sales are appealable discretionary decisions. The court holds that plaintiff's claims are not barred by the doctrines of laches or exhaustion of remedies. The court holds that plaintiff is likely to prevail on its claim that the resale violates the Forest Service's own clearcutting guidelines and NFMA regulations. Forest Service guidelines impose a clearcut limit of 40 acres for the type of timber involved in the resale, and the Forest Service region in question has adopted those guidelines in its existing resource management plan. Since the decision to reoffer a defaulted timber sale constitutes a new discretionary act, the guidelines apply even though the initial decision to sell the timber was in 1979.

The court holds that plaintiff is likely to prevail on its claim that a new EA is required under NEPA. That plaintiff did not challenge the 1979 EA does not mean the existing one is satisfactory. The Council on Environmental Quality has stated that EAs more than five years old for unimplemented projects should be carefully reexamined to determine if a supplement is needed. Moreover, plaintiff has offered evidence that new information, not available in 1979, raises serious questions about the environmental impacts of the proposed resale. Recent Congressional action limiting review of timber contracts does not rule out the need for new environmental review due to staleness or changed circumstances, since it states only that modifications of reoffers should not by themselves be construed as requiring additional review. The court holds that plaintiff has demonstrated irreparable harm, since the loss of old-growth trees cannot be repaired for at least several generations. Finally, the court holds that the public interest would be served by issuance of a preliminary injunction, since the public has a manifest interest in the preservation of old-growth trees and in having the Forest Service comply with environmental laws.

Counsel for Plaintiff
Victor M. Sher, Todd D. True, Corrie J. Yackulic
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Susan Barnes, Ass't U.S. Attorney
800 Fifth Ave., Ste. 3600, Seattle WA 98104
(206) 442-5598

Stephen Smith
Preston, Thorgrimson, Ellis & Holman
5400 Columbia Seafirst Center, 701 Fifth Ave., Seattle WA 98104-7011
(206) 623-7580

[19 ELR 20526]

Rothstein, J.:

Order Granting Plaintiff's Motion for Preliminary Injunction

THIS MATTER comes before the Court on plaintiff Pilchuck Audubon Society's motion for a preliminary injunction halting further logging activity on the "Olo Too" timber sale in the Mt. Baker-Snoqualmie National Forest. Having reviewed the motion, together with all documents filed in support and in opposition, and being fully advised, the Court finds that a preliminary injunction should issue.

In 1979, the United States Forest Service ("USFS") decided to clear-cut 166 acres on Olo Mountain located in Region 6 (the Northwest Region), Darrington District. An Environmental Assessment ("EA"), undertaken pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq., resulted in a Finding of No Significant Impact, entered in May of 1979. At that time, the USFS issued a "Notice of Decision" for the "Olo Too sale" and published the notice in the Everett Herald. No party availed itself of the opportunity to appeal the original Olo Too sale decision. After a bidding process that began in November of 1980, the USFS awarded the Olo Too contract on December 11, 1981 to Cascade Resources, Inc.

Cascade Resources never completed the sale due to an economic downturn in the timber industry. Congress, recognizing the timber industry's economic difficulties, enacted the Federal Timber Contract Payment Modification Act of 1984 ("FTCPMA"), 16 U.S.C. §§ 618-19. The FTCPMA provides that contractors holding timber sale contracts can return the unfulfilled contract to the USFS by paying a buy-out charge. In this case, however, Cascade chose to default, rather than to exercise its buy-out rights under the statute.

In 1984, the USFS — Region 6 began implementation of new resource management standards and guidelines pursuant to the mandate of the National Forest Management Act of 1976 ("NFMA"), 16 U.S.C. § 1600 et seq. The Region 6 guidelines and standards, including those governing the size of clear-cuts, became effective in May 1984 with the publication of the Regional Guide for the Pacific Northwest Region ("Regional Guide"). Declaration of Vern Melcher, Dec. 21, 1987 ex. 1.

On September 30, 1986, the USFS mailed out to those on its mailing list the "6-month Notice to Purchasers of National Forest Timber of Planned Timber Sales for FY '87." Melcher Declaration ex. 2. The mailing list does not have a listing for plaintiff or any of its members of whom the Court is aware. Melcher Declaration ex. 6. The Notice to Purchasers was updated again on April 15, 1987. Melcher Declaration ex. 3. Both Notices contained information about the reoffering of the Olo Too contract ("Olo Too resale"). On May 19, 1987, the USFS mailed to each person or entity listed on the mailing list a prospectus for the Olo Too resale, including a copy of an advertisement and a map of the sale area. Melcher Declaration, ex. 4. The Notice of Resale was published in the Everett Herald, letting the contract out for rebid on May 25, 1987.

The USFS awarded the Olo Too resale contract to defendant Buse Timber on July 17, 1987. Buse Timber employs approximately 120 people and has entered into contracts to sell manufactured lumber in reliance on the availability of the Olo Too resale timber. If the Court enjoins the resale, Buse Timber, its employees, and the surrounding community, will likely suffer a financial loss.

Plaintiff contends that it accidentally discovered the existence of the Olo Too resale at a meeting with the USFS, Darrington District, held on October 17, 1987, but that USFS staff did not mention any right to appeal and did not indicate when defendant Buse would begin logging. Affidavit of Tom Campion, Dec. 2, 1987, P5. Plaintiff further contends that it was not until November 28, 1987, that one of its members accidentally learned that logging had begun. Id. P6. Two weeks later, on December 15, 1987, plaintiff filed its complaint for Declaratory Judgment and Injunctive Relief. A hearing was held on plaintiff's motion for a temporary restraining order on December 16, 1987. The Court entered a TRO on December 17, 1987, and scheduled a hearing on the instant motion for a preliminary injunction.

The decision to grant or deny a preliminary injunction lies within the discretion of the court as long as the proper legal standard is applied. Arcamuzi v. Continental Airlines, Inc., 819 F.2d 935, 936 (9th Cir. 1987). In the Ninth Circuit, preliminary injunctive relief is available in cases involving the public interest if the plaintiff establishes each of the following: (1) a strong likelihood of success on the merits; (2) a favorable balance of irreparable harm; and (3) that the public interest favors the issuance of the injunction. Northern Alaska Environmental Center v. Hodel, 803 F.2d 466, 471 [17 ELR 20015] (9th Cir. 1986).

[19 ELR 20527]

III

Plaintiff argues that it has a strong likelihood of succeeding on the merits of its complaint for declaratory judgment and injunctive relief. Plaintiff based its complaint on three contentions. First, plaintiff contends that the USFS violated its own regulations, 36 C.F.R. § 211.18(a)(2)-(3) by failing to provide a proper public Notice of Decision concerning the Olo Too resale, and thereby failed to provide the public one level of administrative review as mandated by Congress in 1986. Pub. L. No. 99-591, Title III § 320, 100 Stat. 3341-287 (Oct. 30, 1986) (to be codified at 16 U.S.C. § 618). Second, plaintiff argues that the size of the Olo Too resale violates clear-cut acreage limits contained in the NFMA, its implementing regulations, 36 C.F.R. § 219.27(d)(2), and adopted by Region 6 in the Regional Guide. Third, plaintiff asserts that the resale violates NEPA, because the Forest Service failed to update an eight-year-old EA and failed to provide plaintiff an opportunity to establish that changed circumstances required a new environmental review. The Court concludes that plaintiff has a strong likelihood of prevailing on all three of its contentions.

Plaintiff contends that the USFS has denied it and the public the right to appeal the decision to reoffer the Olo Too timber contract. Under USFS regulations, certain discretionary decisions by Forest Officers are subject to appeal, 36 C.F.R. § 211.18(a)(1). Notice of such decisions and the right to appeal must be provided in writing to those on the USFS mailing list and by newspaper publication for all others. 36 C.F.R. § 211.18(a)(2)-(3). Defendant Buse Timber argues that the various mailings and newspaper advertisements placed by the USFS complied with all applicable notice requirements. In fact, however, both the September and the April Notices to Purchasers expressly refer to future decision notices and, in any event, identified the Olo Too contract as not subject to administrative appeal. Melcher Declaration ex. 2 at 1, 8; ex. 3 at 1, 2.¹ Similarly, the prospectus and the newspaper advertisement did not advertise the decision to resell, but merely solicited bids. Moreover, and most importantly, the USFS acknowledges that it never issued a "Notice of Decision" concerning the Olo Too resale.

The USFS contends that the decision to resell Olo Too was not appealable, making a "Notice of Decision" unnecessary. In the USFS's view, because the original 1979 decision to sell Olo Too remains unchanged, no new level of review is required. Plaintiff responds that the USFS's position is no longer tenable given the Ninth Circuit's decision in Oregon Natural Resources Council v. U.S. Forest Service, No. 87-3737, slip op. [18 ELR 20450] (9th Cir. Dec. 21, 1987). There, the Ninth Circuit held that a "reoffer" of a returned sale was an appealable discretionary decision, and that Congress had expressly recognized this fact by limiting challenges to "reoffers" to one level of administrative appeal. Oregon Natural Resources Council, slip op. at 10.

The USFS seeks to distinguish Oregon Natural Resources Council, pointing out that there the reoffer concerned a contract that the USFS had substantially modified after the contract had been returned pursuant to the FTCPMA. Because the contract in the instant case has not been modified and because it was returned to the USFS by way of default, rather than as a buy-out under the FTCPMA, the USFS argues that Oregon Natural Resources Council does not apply. The Court disagrees.

Although the reoffer in Oregon Natural Resources Council had been substantially modified by the USFS, the Ninth Circuit did not hinge its decision on the modification. Oregon Natural Resources Council, slip op. at 10. Likewise, although the contract returned to the USFS under the FTCPMA, the method by which the contract returned to the USFS did not play a crucial role. The Ninth Circuit based its decision upon statutory language and legislative history that, for the purposes of appeal rights, make no distinction between how a contract finds its way back to the forest service, whether through an FTCPMA buy-out or an ordinary default. In 1986 Congress amended the FTCPMA to require that "sales defaulted by the purchaser, or returned under the [FTCPMA] . . . shall be subject to one level of administrative appeal." Pub. L. No. 99-591, Title III § 320, 100 Stat. 3341-287 (Oct. 30, 1986) (to be codified at 16 U.S.C. § 618) (emphasis added).² While Section 320 does state that it should not be applied to "any decision on the determinations of damages due to the Government under defaulted or canceled contracts," this limitation is irrelevant to the statute's express guarantee of one level of administrative review.³

The USFS argues further that even if an appeal lies, the court should bar plaintiff's claims by applying either laches or the doctrine of exhaustion of remedies. The Court finds these arguments unpersuasive. Even assuming that plaintiff discovered the resale as early as July of 1987, the USFS's laches argument fails. Because plaintiff will not be the only victim of the environmental damage caused by the logging of old growth timber, laches must be invoked sparingly. Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 854 [12 ELR 20410] (9th Cir. 1982). Moreover, plaintiff "has a right to assume that federal officials will comply with applicable laws and rely on that assumption." Id. It would be inequitable to apply laches where if delay occurred, it lasted a few short months, and where the USFS failed to provide any public notice and still maintains that it had no obligation to do so because its decision was not subject to appeal. Likewise, the Court rejects the USFS's argument that plaintiff failed to exhaust its remedies. The Court finds the exhaustion argument somewhat puzzling given that the USFS maintains that plaintiff had, and has, no right to appeal the Olo Too resale.⁴

Based on the Ninth Circuit's reasoning and holding in Oregon Natural Resources Council, and based on this Court's review of the relevant statutory language, legislative history, and regulations, the result in this case is inescapable: the USFS's decision to resell a defaulted contract is discretionary and subject to appeal. The Court therefore concludes that, by failing to publish a proper notice of decision and by failing to provide plaintiff and other interested parties one level of administrative review as mandated by Section 320, the USFS violated its own regulations, as well as the express will of Congress. Consequently, plaintiff has established a strong likelihood of succeeding on the procedural aspects of its challenge to the Olo Too resale.

In support of its complaint, plaintiff also argues that as presently constituted, the Olo Too resale violates NFMA regulations, which, subject to certain limited exceptions, impose an absolute clear-cut limit of 40 acres for the type of timber found on Olo Mountain. See 36 C.F.R. § 219.27(d)(2). Defendants correctly point out that 36 C.F.R. § 219.27 does not impose an absolute 40 acre clear-cut limit, but rather sets forth guidelines to be included or implemented in regional plans, which the NFMA directed each Forest to prepare. See 36 C.F.R. § 219.1(a). The current regulations, originally adopted in 1979, provide that until a forest planning area of the National Forest System is managed under an approved forest plan "the land may continue to be managed under existing land use and resource plans." 36 C.F.R. § 219.29(a). Just recently, Congress reaffirmed that pending completion of new plans, existing plans continue to control. Pub. L. No. 100-102, § 314 (Dec. 18, 1987) (to be codified at 16 U.S.C. § 101(g)).

The Court notes that as of the preliminary injunction hearing, Region 6 has yet to adopt a new resource management plan. Nevertheless, the regulations also mandate that "as soon as practicable, existing plans shall be amended or revised to incorporate [19 ELR 20528] standards and guidelines in [subpart 219]." 36 C.F.R. § 219.29(a). By adopting its Regional Guide in 1984, Region 6 complied with 36 C.F.R. § 219.29(a) by, in effect, incorporating the mandated guidelines into existing resource plans.⁵ The Region 6 guidelines "provide standards and guidelines for various management activities . . . [and] these standards and guidelines specify the actual criteria to be applied to the management activities." Regional Guide at 1-2. As one of its management standards, Region 6 has adopted the 40 acre clear-cut limitation. Regional Guide at 3-7. Although there are procedures for increasing the acreage of a clear-cut, the USFS does not contend that it followed such procedures for the Olo Too resale.⁶

While the USFS acknowledges that its guidelines became effective and controlling in May 1984, Melcher Declaration at 2, it contends that it need not retroactively apply the clear-cut limitation to decisions made prior to that date, such as the 1979 decision to sell Olo Too. The USFS bases its position on a faulty premise. As the Court explained above, the decision to reoffer a defaulted sale constitutes a new discretionary act. See Oregon Natural Resources Council, slip op. at 9-10. As amended in 1986 by Section 320, the FTCPMA requires that all reoffered sales, whether by default or by buy-out, "shall be modified to reduce adverse environmental impacts, pursuant to current land management plans and guidelines."

Defendant Buse Timber maintains that the legislative history underlying Section 320 demonstrates that Congress' did not intend to apply the NFMA guidelines to resales of defaulted timber contracts. See S. Rep. No. 397, 99th Cong., 2d Sess. 66 (1986). Unfortunately for Buse Timber's contention, the Conference Committee that prepared the enacted version of Section 320 rejected the Senate Committee's proposed language in favor of the language quoted above. Oregon Natural Resources Council, slip op. at 9. Likewise, Buse Timber's challenge to applying the guidelines pursuant to the Section 320 mandate cannot find support in Congress' most recent pronouncement on the NFMA planning process. Congress has recently stated that "there shall be no challenge to any existing [forest] plan on the sole basis that the plan in its entirety is outdated," Pub. L. No. 100-102, § 314 (Dec. 18, 1987) (to be codified at 16 U.S.C. § 101(g)). Plaintiff, however, does not challenge the entirety of Region 6's existing plan. Rather, plaintiff's complaint comes within Congress' express permission for challenges to "any and all particular activities to be carried out under existing plans." Id. Moreover, this new legislation does not on its face affect the USFS's obligation to modify the Olo Too resale to bring it into compliance with its own guidelines as required by Section 320.

As presently constituted, the Olo Too resale is inconsistent with the USFS's own guidelines for Region 6 and with Congress' express requirement that resales be modified pursuant to current guidelines. Consequently, the Court concludes that plaintiff has demonstrated the requisite likelihood of success as to this aspect of its complaint.

As its final ground for challenging the Olo Too resale, plaintiff contends that NEPA requires a new assessment of the effects that logging Olo Too would have on the environment. More specifically, plaintiff contends anew environmental review is required because (1) the original 1979 EA, now over 8 years old, is stale and in need of updating and (2) information developed since 1979 demonstrates the deleterious effect logging of old growth timber would have on the water quality and fish habitat of Canyon Creek and on the habitat of the Northern Spotted Owl. See Affidavit of Richard A. Stahl, Dec. 15, 1987; Second Affidavit of Richard A. Stahl, Dec. 28, 1987.⁷

The USFS contends that plaintiff did not contest the 1979 Environmental Assessment (EA) and Finding of No Significant Impact, and therefore NEPA requirements, having already been satisfied, need not be revisited. The Court disagrees, and given the USFS's role as steward of our national forests, the Court is somewhat mystified by the USFS's position. As the Council on Environmental Quality ("CEQ") has stated, where a proposal has not yet been implemented, as was the case with the original Olo Too sale, a "rule of thumb" exists requiring environmental assessments that are more than 5 years old to be "carefully reexamined to determine if the criteria in [36 C.F.R. § 1502.9] compel preparation of a . . . supplement." Forty Most Asked Questions, Question No. 32, 48 Fed. Reg. 18026-01 (March 23, 1981) (emphasis added).⁸

In the instant situation, we have even more than the passage of an extended period of time. Plaintiff has offered Stahl's expert testimony to demonstrate that evidence, not available in 1979, raises serious questions concerning the environmental impact of logging Olo Too. The USFS must reevaluate its EA if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing of the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(ii). As a result, the USFS "has a continuing duty to gather and evaluate new information relevant to the environmental impact of its actions after the release of an [Environmental Impact Statement]." Oregon Natural Resources Council v. Marsh, 820 F.2d 1051, 1056 (9th Cir. 1987). In the case of a reoffer of a defaulted timber contract, a challenge to the resale's unmodified EA lies where the plaintiff alleges changed circumstances. See Oregon Natural Resources Council v. U.S. Forest Service, slip op. at 12.

Defendant Buse Timber argues that Congress in enacting Section 320 expressly anticipated that no additional environmental review would be required for resales of defaulted timber contracts. This argument cannot find support either in the statutory language or the proffered legislative history. Here again, Buse offers the Senate Committee Report language ultimately rejected by Congress in the version of the bill finally enacted into law. See Oregon Natural Resources Council v. U.S. Forest Service, slip op. at 9. Moreover, the statutory language does not rule out the need for new environmental reviews due to staleness or changed circumstances. Rather, in Section 320 Congress merely states that modifications of a reoffered sale should not "in themselves" be construed as requiring new or supplemental environmental assessments.

In its briefing and at the preliminary injunction hearing, the USFS offered to present live testimony if the Court wished to consider the environmental substantive issues of owl habitat and Canyon Creek Drainage. The Court finds, however, that it would be inappropriate for it to engage in the initial evaluation of plaintiff's claims and offers of proof concerning Olo Too's potential harmful environmental impact. Instead, the USFS should have an opportunity to review all new information and reach its own decision as to whether a new or supplemental environmental review, if any, is required. See Marsh, 820 F.2d at 1056-57; Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1463-64 [14 ELR 20777] (9th Cir. 1984), cert. denied 471 U.S. 1108 (1985). While plaintiff is entitled to raise its NEPA claims, the proper forum is an administrative appeal. See Oregon Natural Resources Council v. U.S. Forest Service, slip op. at 12.

Plaintiff has demonstrated the requisite strong likelihood of success on the merits of its complaint for declaratory judgment and injunctive relief. For a preliminary injunction to issue, however, plaintiff must also demonstrate a favorable balance of irreparable harm and that the public interest favors the issuance of the injunction. Northern Alaska Environmental Center v. Hodel, 803 F.2d 466, 471 [17 ELR 20015] (9th Cir. 1986).

As to irreparable harm, the loss of old growth trees cannot be [19 ELR 20529] repaired for several generations, if ever. As the Supreme Court recently stated: "[e]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable." Amoco Production Co. v. Village of Gambell, U.S. , 107 S. Ct. 1396, 1404, 94 L. Ed. 2d 542, 555 [17 ELR 20574] (1987). Moreover, noncompliance with NEPA and other environmental statutes has also been recognized as causing irreparable harm in and of itself. See Sierra Club v. Marsh, 816 F.2d 1376, 1389 [17 ELR 20717] (9th Cir. 1987); Save Our Ecosystems v. Clark, 747 F.2d 1240, 1250 [15 ELR 20035] (9th Cir. 1984). The Court acknowledges that Buse Timber, its employees, and the local community will suffer some financial harm. Nevertheless, unlike the loss of old growth trees, financial harm is not usually consideredirreparable in the equitable sense. See Sampson v. Murray, 415 U.S. 61, 90 (1974).

As to the requisite public interest, the Court concludes that it can best serve the interests of the public by granting the preliminary injunction. The public has a manifest interest in the preservation of old growth trees and in having the USFS comply with environmental protection laws enacted both to preserve the environment and to ensure the public's right to participate in USFS decisions concerning timber resources. Where, as in this case, irreparable environmental injury will undoubtedly take place, the balance favors issuance of an injunction to protect the environment. See Village of Gambell, 107 S. Ct. at 1404.

IT IS NOW, THEREFORE, ordered as follows:

Having found that plaintiff has met the applicable legal standard, the Court GRANTS plaintiff's motion for a preliminary injunction. The Court directs the United States Forest Service, Region 6 to halt logging activities on the Olo Too sale and enjoins defendant Buse Timber & Sales, Inc. from carrying out any such activities. This injunction shall remain in effect until a decision on the merits of plaintiff's complaint has been reached. If upon review of this decision the parties decide that a trial on the merits is no longer necessary, the Court will enter a permanent injunction. That injunction will remain in effect until the USFS either withdraws the Olo Too resale or brings it into compliance with USFS — Region 6 clear-cutting guidelines and until such time as it provides plaintiff and other interested members of the public the opportunity to comment on and appeal administratively the decision to sell Olo Too.

IT IS SO ORDERED.

1. Both "Notices to Purchasers" stated that two types of offerings were being made — "firm" and "tentative" — and that only tentative offerings were subject to appeal. Melcher Declaration ex. 2 at 1, ex. 3 at 1. In addition, the Notices identified the Olo Too contract offering as a "firm" resale, Melcher Declaration ex. 2 at 8; ex. 3 at 2, and therefore not subject to appeal.

2. Because the 1986 amendment has not yet been codified, and for purposes of clarity, the Court will refer to this legislation as Section 320. The USFS argues that Section 320, having come out of the Appropriations Committee, should be viewed as nothing more than the personal views of the legislators, much like the language rejected by the Supreme Court in TVA v. Hill, 437 U.S. 153, 191 [8 ELR 20513] (1978). There, however, the Supreme Court concerned itself with an expression of the Committee's understanding with reference to an appropriation request. Id. By contrast, Section 320 has been enacted into law and thus, represents the will of Congress.

3. Likewise, the legislative history of Section 320 demonstrates that Congress viewed a decision to resell a defaulted contract, as well as a returned contract, as subject to one level of administrative appeal. See H. Rep. No. 1002, 99th Cong., 2d Sess. 77 (quoted and discussed in Oregon Natural Resources Council, slip op. at 9-10 n.2).

4. Buse Timber argues that plaintiff's delay in bringing its action should result at least in a denial of the preliminary injunction. The Court disagrees. A court should be loathed to withhold injunctive relief solely on the ground of delay. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211, 1213-14 (9th Cir. 1984). Given the USFS's failure to provide proper notice and the potential irreparable loss of old growth trees, plaintiff's alleged delay should not cause a denial of the preliminary injunction.

5. In its briefing on plaintiff's motion for a temporary restraining order, the USFS acknowledged that "pursuant to [NFMA], the Forest Service in Region 6 did agree to begin implementation as guidelines new standards for clear cutting." Response of Defendants MacWilliams and the United States Forest Service To Plaintiff's Motion for a Temporary Restraining Order, filed Dec. 16, 1987, at 2.

6. The 40 acre limit may be exceeded in cases of natural catastrophic conditions or after 60 days public notice and review by the Regional Forester. The limit can also be exceeded by up to 50 per cent without such 60 day notice and review, if to do so would result in a "more desirable combination of public benefits" and when one of four listed criteria is met. Regional Guide, Standard and Guideline 2-1, at 3-7.

7. Defendant Buse Timber has challenged Stahl's credibility as an expert witness by submitting eight (8) pages of a Transcript of Proceedings from National Wildlife Federation v. United States Forest Service, 592 F. Supp. 931 [14 ELR 20755], as amended, 643 F. Supp. 653 (D. Ore. 1984). Because the Court need not address the merits of plaintiff's evidence of the potential environmental harm, Stahl's credibility is not at issue. The Court does note, however, that the court in National Wildlife Federation relied on Stahl, who it found to be a qualified professional forester, and awarded 100 per cent of the plaintiffs' request for his fees. National Wildlife Federation v. United States Forest Service, No. 83-1153 LE, slip op. 7 (D. Or. July 21, 1987).

8. The USFS has cited 36 C.F.R. § 1501.8 for the proposition that the CEQ has rejected universal time limits. Section 1501.8 refers to time limits of the various steps in the NEPA process leading to an environmental impact statement (EIS). Staleness of an already completed EIS is a separate issue.