ELR Citation: ELR 20919
No(s). 92-1432-ST (D. Or. Dec 9, 1993)

The court holds that the U.S. Forest Service (Forest Service) unreasonably delayed promulgation of final regulations governing uses of private and public lands in the Hells Canyon National Recreation Area (HCNRA), and orders the Forest Service to issue the final regulations according to a specified timetable. The court first holds that the Forest Service's failure to act or its unreasonable delay in acting, constitutes final agency action reviewable under §702 of the Administrative Procedure Act (APA). The court then holds that plaintiff environmental group has standing because the group's interest in the Forest Service's timely promulgating final regulations bears a "plausible relationship" to the policies of the APA—requiring prompt agency action—and the HCNRA Act—specifying the type of regulations the Forest Service must promulgate. Also, the relief sought—issuance of final regulations—properly seeks to redress the injury claimed—reduction of ecological and recreational values in the HCNRA.

Turning to the merits, the court holds that the Forest Service unreasonably delayed the issuance of final regulations under §10 of the HCNRA Act. Although the Act imposes no timetables for promulgating §10 regulations, the Forest Service's four-year delay in promulgating a notice of further proposed rulemaking after issuing an interim rule is not justified. User conflicts exist in the HCNRA and plaintiff has presented evidence that lack of regulation has allowed continued ecological damage. Moreover, the Forest Service has shown its ability to take prompt action when necessary, as it was able to issue the interim rule within three months of a court order requiring it to do so. Additionally, court intervention to expedite promulgation of final regulations will promote the HCNRA Act's goals and will not detrimentally affect other Forest Service activities. The court imposes a timetable for publication of proposed rules, notice and comment, and issuance of private and public land regulations.

Counsel for Plaintiff
Gary Kahn
Reeves & Kahn
610 SW Alder St., Rm. 910, Portland OR 97205
(503) 227-5144

Counsel for Defendants
Thomas Lee, Ass't U.S. Attorney
U.S. Attorney's Office
312 U.S. CtHse., 620 SW Main St., Portland OR 97205
(503) 326-2101