ELR Citation: ELR 20795
No(s). 93-0390-S-HLR (D. Idaho Feb 11, 1994)

The court holds that the U.S. Forest Service's (Forest Service's) decision to allow certain salvage timber sales was exempt from administrative appeal pursuant to regulations in effect before the enactment of the Appeals Reform Act (ARA). The regulation at 36 C.F.R. §217.4 provided that decisions regarding timber sales meant to rehabilitate National Forest System lands after natural disasters were not subject to appeal if the Chief of the Forest Service determined and gave notice in the Federal Register that good cause existed to exempt the decisions. The Forest Service followed this procedure in exempting from appeal its decision to allow the sales of diseased timber at issue. In 1992, however, before the sales took place, Congress passed the ARA, which set substantive standards for the right to appeal and required the Forest Service to modify its appeals process. The Forest Service began the rulemaking process and continued operating under the previous procedure until the new rule was final.

The court first holds that the time the Forest Service took in promulgating ARA implementing regulations was reasonable. The court next dismisses as moot plaintiff environmental groups' claims based on sales that have already been completed, and dismisses claims based on sales that the Forest Service did not exempt from the appeals procedure. The court refuses to dismiss claims based on sales published in the Federal Register over which there is a dispute about whether the groups filed comments as required by the ARA as a prerequisite for bringing suit. The court next holds that the express language of the ARA, the circumstances surrounding its enactment, and the Act's legislative history make clear that the Forest Service was required to implement the ARA through administrative rulemaking, and that the ARA is therefore not self-implementing. Moreover, the court holds that it was permissible for the Forest Service to continue to follow its existing regulations while the new regulations were being drafted and put in place and to exempt its decisions regarding the salvage sales at issue from appeal. The court holds that the groups failed to show that exempting the sales from appeal would cause irreparable harm to them or the environment, whereas the Forest Service made a strong showing that greater harm would occur if the sales did not proceed as soon as possible. Finally, the court grants summary judgment to the Forest Service on the groups' claim that one of the sales took place in violation of the Federal Water Pollution Control Act, because the groups did not respond to the Forest Service's arguments on that issue.

Counsel for Plaintiffs
D. Bernard Zaleha
P.O. Box 982, Boise ID 83701
(208) 342-1717

Counsel for Defendant
Guy G. Hurlbutt
Boise Cascade Corporation
P.O. Box 50, Boise ID 83728
(208) 384-6161