ELR Citation: ELR 20365
No(s). 92-1534-JE (D. Or. Sep 1, 1993)

The court holds that the U.S. Forest Service (Service) complied with the National Historic Preservation Act (NHPA) when it issued a logging company a permit to haul logs from private property on Service roads. The court holds that the requirement of 36 C.F.R. §800.4(b) are satisfied by the Service's prior surveys and field inventories attempting to locate historic property on Enola Hill. The court holds that the "consultation" requirement in 36 C.F.R. §800.4(b) is satisfied, because the Service communicated regularly with the state historic preservation officer, and annually provided the officer with data on areas surveyed. The court also holds that where no historic properties have been disclosed by the search, the Service is only required to provide the officer with documentation of that finding. It is not required to take further steps in the NHPA §106 process. The court holds that the Service's decision that no historic cultural properties would be affected by the road permit was not arbitrary, capricious, or contrary to law. Finally, the court notes that a decision not to issue the road permit would have effectively denied the owner of private property that is surrounded by national forest "reasonable use and enjoyment" of his land, contrary to 16 U.S.C. §3210(a).

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

Counsel for Defendants
Thomas C. 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