ELR Citation: ELR 21195
No(s). CV-91-3027-AAM (E.D. Wash. Jun 14, 1991)

The court holds that the Columbia River Gorge National Scenic Area Act (Scenic Act) does not require a state compact or the U.S. Forest Service, in developing draft management plans for general and specific management areas, to undertake the type of detailed studies and analyses involved in the preparation of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) and the Washington State Environmental Policy Act (SEPA), and forest planning under the National Forest Management Act (NFMA). Oregon and Washington entered into a compact entitled the Columbia River Gorge Commission to effect parts of the Scenic Act. Under the Scenic Act, the Commission is responsible for developing a draft management plan for the general management areas, and the Forest Service is responsible for developing a draft management plan for special management areas. Although the Scenic Act provides for studies and public comment in the development of these plans, the draft management plans developed by the Commission and the Forest Service did not include EISs, and interested parties sought to enjoin both the Forest Service and the Commission from adopting a final management plan for the national scenic area until they fulfilled the information requirements of NEPA, SEPA, and the NFMA.

The court first disposes of preliminary motions, ruling that the parties may file overlength briefs and judicial notice may not be taken of the Scenic Act's legislative history and of the expertise of the Commission. The court next rules that although the plaintiffs failed to provide the requisite notice to interested parties to survive the 60-day notice requirement, the purpose of that notice rule has been served and the suit may proceed. The court also denies the Forest Service's motion to strike plaintiffs' entire consolidated trial memorandum, because the issue whether the Forest Service has complied with the appropriate provisions does not depend on testimony and affidavits.

The court next holds that the Scenic Act's directive that the Commission develop regulations related to "disclosure of information" was intended to lead the Commission to adopt the Oregon or Washington law on the release of public records, not to incorporate an environmental full disclosure law requiring the type of detailed studies and analyses involved in preparing an EIS. Although the Commission considered the specific issue of whether they had to comply with SEPA only recently, it has interpreted the disputed portion of the Scenic Act in issuing rules for administrative procedure and is entitled to some level of deference. Moreover, although the Scenic Act does not define "disclosure of information," within the context of administrative procedure laws the term refers to laws relating to the release of public records. If Congress had intended the Commission to comply with SEPA procedures in developing the management plan, it would have placed this directive in §544d of the Scenic Act, which deals with the development of the management plan. The court also concludes that it is doubtful that Congress would specifically exempt the Forest Service from NEPA's EIS and environmental assessment requirements and then by implication require the Commission to follow the EIS requirement of SEPA. The court denies plaintiffs' motion for permanent injunctive relief, vacates the preliminary injunction, and dismisses with prejudice their complaint related to the Commission.

The court next holds that plaintiffs' challenge to the sufficiency of the Forest Service's management plan is premature, because no final agency document has yet been prepared. The court expresses its doubt that Congress would exempt the Forest Service from NEPA information requirements and still expect the agency to conduct the study of alternatives under the Scenic Act. Even if the court were to decide that the Forest Service is required to comply with alternatives analyses required by NEPA and the NFMA, such analyses must include whether the agency's interpretation of the legislative limits imposed by the Scenic Act on the alternatives to be studied was reasonable. The Forest Service has not produced a final agency document, and future public comment could generate discussion on other alternatives, making plaintiffs' request for permanent injunctive relief premature.

Counsel for Plaintiffs
Michael E. Haglund
Haglund & Kirtley
One Main Pl., 101 SW Main, Ste. 1800, Portland OR 97204
(503) 225-0777
Ted A. Roy
Roy & Pell
201 E. "D" St., Yakima WA 98901
(509) 248-1919

Counsel for Defendants
Stuart Schoenburg
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000