ELR Citation: ELR 21018
No(s). 84-4198 (9th Cir. Oct 15, 1985)

The court rules that the Forest Service's Capital Investment Road and Bridge Program (CIP) is not a proposal for federal action requiring a programmatic environmental impact statement (EIS) under the National Environmental Policy Act (NEPA), nor is it a substantive program requiring public comment under Forest Service regulations. The court first rules the district court did not abuse its discretion or rely on an erroneous legal premise in denying plaintiffs a preliminary injunction. The court had concluded that plaintiffs had not shown irreparable injury or probable success on the merits. Plaintiffs' claim that the trial court erred in not applying an alternative test centering on the balance of hardships fails, because probability of success on the merits is an essential element of either test. Turning to the merits, the court holds that the CIP is not a substantive proposal requiring the preparation of an EIS. The program does not actually propose federal actions but only allocates funds for actions already proposed and subject to NEPA analysis. The court also rules that the Forest Service did not violate the APA by not carrying out public comment regulations with respect to the formulation of the CIP. The regulations apply to Forest Service "programs," and the CIP is not a substantive program for road construction but a "land and resource activity," which establishes procedures for the allocation of funds.

Counsel for Plaintiffs-Appellants
Thomas France
810 Rollins St., Missoula MT 59801
(406) 543-5581

Counsel for Defendants-Appellees
Robert G. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2253

Terry Coffin
Runft, Leroy, Stecher, Coffin & O'Riordan
Suite 200, Idaho First Nat'l Bank Empire Bldg., 205 N. 10th St.
P.O. Box 1960, Boise ID 83701
(208) 344-6100

Before Hug, Jr. and Skopil, JJ.