ELR Citation: ELR 21373
No(s). 94-354-JO (D. Or. Mar 29, 1995)

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act (NEPA) by moving part of a road from inside the boundary of a wilderness area within the Hells Canyon National Recreation Area (NRA) to outside the boundary without performing an environmental assessment (EA) or environmental impact statement (EIS). The NRA's comprehensive management plan (CMP) and the final EIS, which the Forest Service approved in 1982, stated that the road would be open to the public for motorized use. The Forest Service Ranger for the NRA subsequently discovered that a segment of the road was illegally within the wilderness area. After closing the segment, the Ranger decided to relocate the road outside the wilderness area.

The court first holds that the Ranger followed Forest Service procedures in deciding to relocate the road and to categorically exclude the project from NEPA's requirement to perform either an EA or an EIS. The Forest Service's handbook categorically excludes from NEPA "construction of low-impact facilities or improvements and other low standard roads, such as traffic service level 'D' roads." It is undisputed that the segment qualifies as a "level D" road. The court next rejects the arguments of the plaintiff citizen group challenging the action, that the Wilderness Act required the agency only to close the portion of the road in the wilderness area, that nothing required the Forest Service to relocate the road, and that at least an EA is always required before constructing a road in a "roadless" area. While the Forest Service may in some situations be required to prepare an EIS or EA before constructing a road in an area that an on-site evaluation demonstrates to be roadless and undeveloped, the Forest Service's decision in this case complied with NEPA and was proper. Contrary to the group's view, the 1982 final EIS and implementing CMP go far beyond merely allocating certain lands to "wilderness" or "nonwilderness" status. The management directive in the CMP for the area specifically states that the road in question will be "open for motorized use." The mistaken inclusion of part of that road in the wilderness area does not defeat congressional intent or the clear directives of the final EIS and CMP that the road remain open to motorized use by the public. Moreover, although the Forest Service invoked a categorical exclusion, it also found that the individual or cumulative environmental effects of relocating the road on the human environment would be negligible. The court next holds that the record does not substantiate the group's contention that the relocation of the road will have a significant negative impact on the area's elk population. The court holds that the decision to relocate a portion of the road a short distance from its prior location and outside the wilderness area boundary was not arbitrary and capricious. Finally, the court notes that because plaintiff withdrew its argument that anadditional portion of the road is illegally located in the wilderness area and must be closed, its motion for summary judgment on that claim is moot.

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

Counsel for Defendant
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW 5th Ave., Ste. 1000, Portland OR 97204
(503) 326-2101