32 ELR 20765 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Riverhawks v. Zepeda

ELR Digest

The court holds that the U.S. Forest Service's (Forest Service's) decision to issue special use permits to motorized commercial fishing boats on the Rogue Wild and Scenic River (WSR) did not violate the Wild and Scenic Rivers Act (WSRA) or the National Forest Management Act (NFMA), but that the Forest Service's issuance of the special use permits under a supposed categorical exclusion violated the National Environmental Policy Act's (NEPA's) procedural requirements. The court first holds that it lacks jurisdiction over a group's challenge of noncommercial motorboat use. The group failed to identify a final agency action to support their challenge of private, noncommercial motorboat use. In addition, the court holds that the group has standing to assert their claims. The court also denies the group's and the Forest Service's motions to strike certain evidentiary matters.

As for the merits, the court next holds that the Forest Service's authorization of motorized use in the Rouge WSR does not violate the WSRA. Language in the 1972 river management plan for the Rogue WSR merely suggests that levels of motorized use on the river be limited to 1968 levels and, thus, the Forest Service's issuance of the special use permits did not violate a mandatory, enforceable duty under the WSRA. Similarly, the Forest Service did not violate the WSRA by allowing motorized use on the Rogue WSR that harmed fish and wildlife and interfered with nonmotorized recreational uses. Conflicting evidence exists as to the impact on fish and wildlife, and in such situations the Forest Service has discretion to rely on its experts. Likewise, the record fails to show a significant conflict between recreational activities of commercial motorboats and nonmotorized watercrafts. Further, the Forest Service is not required to prepare a recreation plan for the Rogue WSR. For rivers designated as wild and scenic prior to 1986, the WSRA does not require the creation of a recreation plan, but only a management plan, and the Forest Service created and incorporated such a management plan for the Rogue WSR. The court further holds that the Forest Service's authorization of the commercial motorboat uses under the special use permits also did not violate the NFMA by failing to protect the Western Pond Turtle. The NFMA requires the Forest Service to provide for diversity of plant and animal communities. As a sensitive species, the duty viable populations of the turtle applies with special force, and the Forest Service must monitor and evaluate the species' viability. Although the record reflects that motorboat use may affect the turtle, no evidence suggests that motorboat use jeopardizes viable turtle populations. Similarly, although the Forest Service failed to monitor the turtle until 2001, it has begun a monitoring program.

However, the court then holds that the categorical exclusion of the special use permits from NEPA's requirements is arbitrary and capricious. A categorical exclusion is appropriate only when the proposed action will have no effect on the environment. The record reflects that the increased motorized boat traffic has the potential to impact turtles and salmon as well as cause conflict between various user groups. Despite the presence of these potential impacts, the Forest Service failed to engage in any scoping process before issuing the special use permits. This failure to pursue scoping violates the Forest Service's own public notice-and-comment regulations and NEPA's requirement that the agency take a hard look at the environmental consequences of a proposed action.

The full text of this opinion is available from ELR (31 pp., ELR Order No. L-534).

Counsel for Plaintiffs
Peter M. Frost
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(541) 485-2471

Counsel for Defendants
Val M. Black, Special Ass't Attorney
U.S. Department of Agriculture
1220 SW Third Ave., Rm. 1734, Portland OR 97204
(503) 727-1000

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]

32 ELR 20765 | Environmental Law Reporter | copyright © 2002 | All rights reserved