National Audubon Society v. United States Forest Service

No. 90-811-MA (D. Or. November 21, 1990)

The court enjoins four timber sales in the Rogue River National Forest pending the Forest Service's completion of environmental impact statements (EISs) analyzing the consequences of the timber sales on the lands. A portion of the lands on which the timber sales were to have taken place are roadless in fact, but are not "roadless" under Forest Service standards. The court first holds that the "on-the-ground" situation determines whether an area is roadless and undeveloped for the purpose of assessing compliance with the National Environmental Policy Act (NEPA). NEPA requires EIS preparation for all major federal actions significantly affecting the quality of the human environment. The court holds that the timber sales may significantly impact the environment by irreversibly damaging the recreational value and resources of the sale areas. The court notes that once a roadless area is developed through logging and road construction, it is irrevocably changed. The court holds that, because of the significant environmental consequences that may result from the development of the sale lands, the Forest Service's determination that no EIS was required was unreasonable.

Counsel for Plaintiffs
Gary K. Kahn
Reeves & Kahn
910 Oregon National Bldg., 610 S. W. Alder St., Portland OR 97205
(503) 227-5144

Thomas C. Lee, Ass't U.S. Attorney
3121 U.S. Courthouse, 620 S.W. Main St., Portland OR 97205
(503) 221-2202

Arno Reifenberg, Val J. McLam Black
Office of General Counsel, U.S. Department of Agriculture
1734 Federal Bldg., 1220 S.W. Third Ave., Portland OR 97204
(503) 326-2741

Counsel for Defendant
Michael E. Haglund, Scott W. Horngren
Haglund & Kirtley
101 S.W. Main, Ste. 700, Portland OR 97204
(503) 225-0777

[21 ELR 20828]

Marsh, J.:

Amended Opinion

This action involves challenges to four timber sales on the Rogue River National Forest — the Ace, Butch, Varmit, and Head timber sales. Plaintiffs contend that with respect to each sale, the Forest [21 ELR 20829] Service has failed to comply with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and its implementing regulations, 40 C.F.R. Part 1500. In particular, plaintiffs claim that a portion of each sale area is roadless and undeveloped and that the Forest Service's failure to disclose and analyze this roadless condition and its environmental consequences violates NEPA. At issue before me now are plaintiffs' request for a permanent injunction enjoining the timber sales pending the Forest Service's completion of an Environmental Impact Statement ("EIS") and defendant and intervenor-defendants' motions for summary judgment. The parties have stipulated that the provisions of section 318 of the Department of the Interior and Related Agencies Appropriations Act of 1989 (FY 1990), Pub. L. No. 101-121, 103 Stat. 701, apply to this case through the rendering of this opinion or any appeal therefrom. For the reasons set forth below, I grant the request for a permanent injunction and deny the motions for summary judgment.

Background

The Wilderness Act of 1964 established the National Wilderness Preservation System ("Wilderness System") to provide statutory protection for areas that are relatively untouched by humankind. 16 U.S.C. § 1131 (1976). Under the mandate of the enabling legislation, the Secretary of Agriculture is directed to recommend to Congress " primative" areas that should be added to the Wilderness System. Id. at § 1132. Pursuant to this Act, wilderness areas were created on national forest lands.

In 1972, the Forest Service conducted a nationwide review of "roadless areas" within the National Forest System, the "Roadless Area Review and Evaluation" ("RARE I"), in order to identify additional areas for inclusion in the Wilderness System. In 1973, a federal court enjoined development of land pursuant to RARE I pending completion of an EIS. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 [3 ELR 20830] (10th Cir. 1973). In 1977, the Forest Service made a second attempt to evaluate roadless areas. This project, RARE II, inventoried all roadless areas within the National Forest System and allocated each area to one of three planning categories: "wilderness," "further planning" and "nonwilderness." See generally California v. Block, 690 F.2d 753, 758 [13 ELR 20092] (9th Cir. 1982). Areas designated as "wilderness" were to be recommended to Congress for inclusion in the Wilderness System. A " further planning" designation meant that an area would be protected pending completion of a unit management plan to consider whether the area should be included in the Wilderness System. And a "nonwilderness" designation denoted that the area was to be released for multiple resource use activities. The Forest Service filled its Final EIS on the RARE II project in January 1979.

In July 1979, the State of California brought an action challenging the Forest Service's decision to designate 47 RARE II areas in California as "nonwilderness" on the grounds that these designations violated NEPA, the Multiple-Use Sustained-Yield Act, 16 U.S.C. § 528, and the National Forest Management Act, 16 U.S.C. § 1604. The district court upheld California's challenge finding that the RARE II Final EIS was inadequate under NEPA to support the Forest Service's nonwilderness designation. California v. Bergland, 483 F. Supp. 465 [10 ELR 20098] (E.D. Cal. 1980). The Ninth Circuit affirmed in part and reversed in part, holding that while the RARE II EIS contained an adequate discussion of the site-specific environmental consequences of the nonwilderness allocations, the EIS did not consider an adequate range of alternatives. California v. Block, 690 F.2d 753 [13 ELR at 20092].

On June 26, 1984, Congress enacted the Oregon Wilderness Act, Pub. L. No. 98-328, 98 Stat. 272. This Act added approximately 859,600 acres to the already-existing Wilderness System lands in Oregon and released the remaining RARE II lands to nonwilderness management. Sec. 7, 98 Stat. 277-278. The Act allocated RARE II roadless lands within the Rogue River National Forest. It created the Sky Lakes Wilderness area from one of the roadless areas, 98 Stat. 274, and assigned the Bitter Lick roadless area to "multiple use" management, sec. 7(b)(3), 98 Stat. 278. The Head timber sale at issue in this action borders on the former RARE II roadless land from which Sky Lakes Wilderness area was created. The Ace timber sale was at one time encompassed within the Bitter Lick roadless area.

Legislation was also enacted to expand the boundaries of Crater Lake National Park by annexing to the park several roadless areas in the Rogue River National Forest that bordered on the park. Pub. L. No. 96-553, 94 Stat. 3255 (Dec. 19, 1980), amended by Pub. L. No. 97-250, 96 Stat. 709 (Sept. 8, 1982). Among the roadless areas annexed to the park were the Thousand Springs roadless area which had previously included part of the Varmit timber sale and the Sphagnum Bog roadless area which had previously included part of the Butch timber sale. On March 12, 1981, the Forest Service directed that vestiges of former bordering roadless areas that were not annexed to the park be released from the inventory of roadless areas.

Standard Of Review

The standard of review as to plaintiffs' motion for a permanent injunction is set forth in section 318(g)(1) of the Department of the Interior and Related Agencies Appropriations Act of 1989 (FY 1990), Pub. L. No. 101-121, 103 Stat. 701. Section 318(g)(1) provides that a court shall "enjoin permanently, order modification of, or void an individual sale if it has been determined by a trial on the merits that the decision to prepare, advertise, offer, award, or operate such sale was arbitrary, capricious, or otherwise not in accordance with law."

With respect to defendants' motions for summary judgment, summary judgment is appropriate if the court finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). There is no genuine issue of material fact where the nonmoving party fails "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotext Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1983); Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). All reasonable doubts as to the existence of genuine issues of fact must be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).

Discussion

Plaintiffs claim that the Forest Service violated NEPA by entering into the four challenged timber sales because portions of these sales involve unroaded and undeveloped land. Plaintiffs contend that because these sales involve roadless and undeveloped areas, the Forest Service must complete an EIS before it may offer these lands for sale. It is undisputed that the Forest Service has not conducted an EIS analyzing the environmental consequences of these timber sales in terms of their roadless and undeveloped features.

Defendants argue that no EIS is required for these sales because plaintiffs' challenge is barred by the Oregon Wilderness Act. Defendants claim that "roadless" is a legal term which is synonymous with those areas that passed through the RARE II process. Defendants claim that Congress passed on the adequacy of the Forest Service's inventory of roadless areas in Oregon through its enactment of the Oregon Wilderness Act thereby settling "once and for all time, what areas the Forest Service shall evaluate as roadless areas" (emphasis in original), and barring "all judicial review that could reach a contrary result."¹ In essence, the Forest Service's argument is that the challenged sale areas are not roadless because the Forest Service has never recognized them as roadless.

I disagree with defendants' interpretation of the impact of the Oregon Wilderness Act. The designation of an area as "roadless" for the purpose of determining the broad category of future development possibilities is not synonymous with an assessment of whether an area is in fact roadless or an analysis of whether significant environmental consequences will result from the development of the area. The Ninth Circuit rejected a similar argument in Tenakee Springs v. Block, 778 F.2d 1402 [16 ELR 20263] (9th Cir. 1985). In Tenakee Springs, the court held that the Alaska Lands Conservation Act which, like the Oregon Wilderness Act, designates wilderness and nonwilderness areas, did not immunize the Tongass National Forest Plan from [21 ELR 20830] judicial review relative to management decisions in RARE II roadless areas. Rather, the court held that the Alaska Act

immunizes from judicial review only the wilderness/nonwilderness allocations made by RARE II and not the detailed Tongass Plan allocations of nonwilderness areas as suitable for primitive, environmentally compatible, or intensive development.

778 F.2d at 1405. Thus, contrary to defendants' contention, I find that it is the on-the-ground situation which determines whether an area is roadless and undeveloped for purposes of assessing compliance with NEPA.

On the issue of whether the roadless and undeveloped quality of the sale areas requires the preparation of an EIS, NEPA mandates the preparation of an EIS for all "major federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). In determining whether the implementation of a proposal "significantly" affects the environment, the test is whether "the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor." Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 597 [11 ELR 20537] (9th Cir. 1981) (emphasis in original). A showing that significant effects on the human environment will in fact occur is not necessary. Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). Rather, "[i]f substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared." Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 1178 [12 ELR 20968] (9th Cir. 1982) (emphasis in original). Accord San Francisco v. United States, 615 F.2d 498, 500 [10 ELR 20346] (9th Cir. 1980). As set forth in Forest Service regulations, one consideration in determining whether a proposed action will significantly affect the quality of the human environment is "[t]he degree to which the effects on the quality of human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4). An agency's determination that a particular project does not require the preparation of an EIS will be upheld unless unreasonable. Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d at 1177 [12 ELR at 20968].

Having reviewed the record, I find that implementation of the preferred alternative for each sale may significantly impact the environment by irreversibly damaging the recreational value and resources associated with these roadless and undeveloped lands. As plaintiffs' expert Dr. Noss testified in his affidavit, "logging and associated road-building is the primary threat to biodiversity in the forest ecosystems of the Pacific Northwest." Roadless areas provide a sanctuary to animal and plant species most sensitive to human disturbances. These animal and plant species may not be able to adapt to new habitat created by fragmentation. Further, timber sale activities may significantly impact recreational opportunities in these unroaded areas. The Forest Service itself has recognized the unique resources and values attributable to roadless areas. Thus, in the EIS for the Rogue River National Forest Land and Resources Management Plan, the Forest Service stated that "unroaded areas can be considered a special resource unto themselves." It is undisputed that once a roadless area is developed through logging and road construction, it is irrevocably and irreversibly changed.

I reject defendants' argument that the environmental consequences highlighted by plaintiffs are adequately addressed by the Oregon Wilderness Act's failure to include these areas in its "roadless" designation. The Act's designation of "roadless" and "nonroadless" areas merely sets future development possibilities for these lands and does not address the site specific environmental consequences as required by NEPA. Thus, even though designated "roadless," the Forest Service must still consider whether these lands are in fact roadless and the consequences of this condition in determining which of various development alternatives to pursue. In making this determination, the Forest Service may find that the factors which removed the contract sites from roadless status in RARE II still exist to justify a finding that these roadless areas are nonroadless for the purposes of NEPA. However, a nonroadless determination under the Wilderness Act or RARE II does not satisfy the continuing mandate of NEPA to assess the environmental aspects of a given sale.

Likewise, I reject defendant's argument that inclusion of a "no-action" alternative within the environmental assessments ("EAs") for these sale areas satisfies NEPA. The Forest Service's conclusion in the EAs that these four sales would not have a significant impact on the quality of the human environment is based on the assumption that the sales do not involve roadless and undeveloped. As stated above, this assumption is false.

Rather, I find that, based on the significant environmental consequences which may result from the development of these roadless areas, the Forest Service's determination that no EIS was required for the four challenged timber sales was unreasonable. The decision to develop a previously undeveloped area is an irreversible and irretrievable decision, the impacts of which must be analyzed in an EIS. California v. Block, 690 F.2d at 763 [13 ELR at 20092]. The irreversible effects of developing these roadless lands also supports the issuance of a permanent injunction pending the Forest Service's completion of an EIS for the roadless portions of the timber sales areas. As the Supreme Court held in Amoco Production Co. v. Village of Gambell, 480 U.S. 531 [17 ELR 20574] (1987), "environmental 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." Id. at 1404. For this reason, "[i]f environmental harm is sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment." Id. Accord Sierra Club v. Marsh, 816 F.2d 1376, 1384 [17 ELR 20717] (9th Cir. 1987) (violation of environmental statute causes irreparable injury). By contrast, the only possible harm to the Forest Service resulting from the issuance of an injunction is economic. Financial loss does not constitute irreparable harm. Sampson v. Murray, 415 U.S. 61 (1974).

Conclusion

For the reasons set forth above, plaintiffs' request for a permanent injunction is granted and defendants' motions for summary judgment are denied. Defendant United States Forest Service is hereby permanently enjoined from offering Units 3, 3A, 4, 6, 7, and 9 of the Ace Timber Sale, Units 4 and 5 of the Butch Timber Sale, Units 3, 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, and 16 of the Head Timber Sale, and Units 5, 6, 7, 8, 9, 22, and 23 of the Varmit Timber Sale pending completion of an environmental impact statement analyzing the consequences of the timber sales on the roadless and undeveloped nature of these lands.

1. Under Forest Service criteria, roadless areas must generally include 5,000 acres or more. The definition of roadless areas also includes, however, all roadless areas "adjacent to National Park lands endorsed for Wilderness" and roadless areas "adjacent to existing wilderness areas regardless of size." Further, roadless areas can include areas "where logging is not evident." It is undisputed that the roadless and undeveloped portions of the Butch and Varmit sales are adjacent to "National Park lands endorsed for wilderness," and that the roadless and undeveloped portions of the Head timber sale are "adjacent to [an] existing wilderness area." The roadless and undeveloped portions of the Ace timber sale are adjacent to an inventoried roadless area — the Bitter Lick roadless area.