ELR Citation: ELR 20408
No(s). 90-0289-E-EJL (D. Idaho Oct 4, 1990)

The court holds that owners of property adjacent to land in the Challis National Forest in Idaho lack standing under the National Forest Management Act (NFMA) to challenge a proposed timber sale, and that the Forest Service complied with the National Environmental Policy Act. The Challis National Forest is administered according to a land and resource management plan, and the Forest Service approved the plan and its attendant environmental impact statement (EIS) in a Record of Decision (ROD). Subsequently, the Forest Service determined that the Sawmill Creek area of the Challis National Forest, which is adjacent to plaintiffs' land, was infested with dwarf mistletoe and posed a threat to other forest areas with potential infection and heightened fire danger. The Forest Service proposed implementation of a silvicultural prescription timber cut in the affected area to eradicate the infestation and made a Decision Notice/Finding of No Significant Impact (DN/FONSI) in its environmental assessment (EA) for the proposed timber sale. Subsequently, plaintiff land owners appealed the ROD approving the management plan and the final EIS for the Challis National Forest. While on appeal, the Forest Service supplemented the EA to address alternatives to the proposed timber sale, but ultimately chose the timber cut alternative, which plaintiffs now seek to enjoin.

The court first holds that plaintiffs lack standing under their NFMA complaint, which alleges that the proposed timber sale is an inefficient use of taxpayer funds and resources and that logging roads will negatively impact local fisheries, since these are general injuries and standing must be based on personal injuries. The court next grants plaintiffs' motion to strike the affidavits of Forest Service personnel in the court's consideration of the Forest Service's decision in issuing its DN/FONSI. Judicial review of action taken by an agency is limited to review of the record before the agency at the time of its decision.

Turning to whether a preliminary injunction should issue, the court holds that the Forest Service, while not required to prepare the supplemental EA it did, nonetheless took the required "hard look" at the circumstances and was not arbitrary and capricious in approving the timber sale. Moreover, plaintiffs have failed to offer new information or changed circumstances to support their demand for a supplemental EIS. Plaintiffs moved next door to public land, which is to be administered for the good of all the public, not just for them. The court next holds that the Forest Service took the proper "hard look" with regard to sedimentation of affected watershed streams potentially caused by logging road construction, cumulative impacts, the no-action alternative, and the direct impacts of the timber sale on plaintiffs' domestic water supply and noise mitigation. Thus, the court denies the preliminary injunction because plaintiffs' likelihood of success on the merits is low and plaintiffs have failed to show that they will suffer irreparable injury absent an injunction. The eradication of the dwarf mistletoe, in addition to providing jobs and adding income to the local community, will serve to create a healthier forest in the future, and is in the public interest.

Counsel for Plaintiffs
Eleanore S. Baxendale
Givens, Pursley, Webb & Huntley
Park Pl., 277 N. Sixth St., Ste. 200, Boise ID 83701
(208) 342-6571

Counsel for Defendants
Marc D. Haws, Ass't U.S. Attorney
328 U.S. Courthouse, Box 037, 550 W. Fort St., Boise ID 83724
(208) 334-1211