32 ELR 20440 -- Wilderness Society v. Rey

Wilderness Society v. Rey

Nos. CV-01-219-M-DWM; CV-01-220-M-DWM (180 F. Supp. 2d 1141) (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA January 7, 2002)

ELR Digest

The court grants environmental groups' motion to preliminarily enjoin the U.S. Forest Service from implementing a salvage project in the Bitterroot National Forest until any administrative appeals have been resolved pursuant to the Appeals Reform Act. After the final environmental impact statement for the project was made available for public comment, the Forest Service asked a U.S. Department of Agriculture Undersecretary to sign the record of decision (ROD) for the project, which altered the project's preferred alternative, in order to relieve the Forest Service from any administrative appeals process. Environmental groups filed suit, arguing that the Forest Service cannot, by having the Undersecretary sign the ROD, circumvent an act of the U.S. Congress that requires the Secretary of Agriculture to implement an administrative appeal process for Forest Service decisions. The government argued that the administrative head of an agency has the right at any time to re-assume any authority delegated to subordinates and make a final administrative decision. The court first holds that although the Appeals Reform Act's implementing regulations allow the Secretary to exercise authority she has previously delegated, they do not eliminate the statutory right to an appeal of a Forest Service decision. Thus, the environmental groups demonstrated that they will likely succeed on the merits. Because the Forest Service conceded irreparable harm to native fisheries in the area, the court preliminarily enjoined the project until the Forest Service complies with the Appeals Reform Act.

The full text of this decision is available from ELR (9 pp., ELR Order No. L-439).

Counsel for Plaintiffs
Douglas L. Honnold
Earthjustice Legal Defense Fund
11 E. Main St., Bozeman MT 59715
(406) 586-9699

Counsel for Defendants
Wells D. Burgess
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]