ELR Citation: ELR 20191
No(s). 7:04CV00591 (W.D. Va. Sep 13, 2005)

The court denies in part and grants in part the U.S. Forest Service's motions to dismiss claims challenging a special use permit authorizing a power company to construct, operate, and maintain a right-of-way for an electrical power line through the George Washington and Jefferson National Forests in central and western Virginia and southern West Virginia. The environmental groups challenging the permit have standing. And they properly stated a claim that the Forest Service failed to enter into formal consultation with the U.S. Fish and Wildlife Service to discuss options to reduce the power line's anticipated adverse effect on endangered species. But their allegation that the Forest Service did not have the authority to issue the special permit was dismissed for failure to state a claim. Section 501 of the Federal Land Policy and Management Act (FLPMA) delegates to the Forest Service the authority to grant rights-of-way for "systems for generation, transmission, and distribution of electric energy," such as the power line here. And despite the groups' claim to the contrary, FLPMA §501 contains no maximum acreage limitation in the grant of rights-of-ways.