ELR Citation: ELR 21373
No(s). 93-36187 (9th Cir. Aug 22, 1994)

The court affirms a district court decision upholding the U.S. Forest Service's (Forest Service's) refusal to consider classifying part of the Colville National Forest as wilderness before approving a timber sale, but reverses the district court's denial of an injunction barring the sale until the Forest Service considers the effect of the sale on a 5,000-acre roadless area. The court first holds that plaintiff-appellant's failure to challenge factual determinations in the Forest Service's environmental impact statement for the Colville National Forest's plan does not bar him from challenging the sufficiency of the Forest Service's disclosure under the National Environmental Protection Act (NEPA) at the implementation stage. The court holds that its decision in Idaho Conservation League v. Mumma, 22 ELR 20569 (1992), does not prohibit a plaintiff from challenging a specific sale or project, as opposed to a land management decision or a nonwilderness classification, at the implementation stage. The court next notes that the federal Washington State Wilderness Act (WSWA) requires the U.S. Department of Agriculture to consider wilderness classification only for uninventoried roadless areas of more than 5,000 acres and that the Colville National Forest's Conn Merkel Area is larger than 5,000 acres and has not been inventoried by the Forest Service. The Service determined that a jeep trail dividing the area into two parcels of less than 5,000 acres each qualifies as a road under Forest Service criteria and prevents classification of the Conn Merkel Area as "roadless." Based on the record, which includes photographs of the trail, the court holds that the Forest Service's determination is not arbitrary or capricious.

The court holds, however, that the Forest Service's NEPA documents for the timber sale are inadequate, because they fail to address the impact of the sale on a roadless area of more than 5,000 acres located west of the jeep trail. Although the area is partially inventoried, and the WSWA thus precludes judicial review of possible wilderness classification, the impact of the timber sale on the area is significant because of the area's "roadlessness" and because the WSWA does not foreclose judicial review of the wilderness option forever. A second-generation forest plan may revisit the wilderness option. When the Forest Service is considering the development of a 5,000-acre roadless area, selection of a no-action alternative, which the Forest Service is required to consider, would preserve the possibility that it might some day designate the area as wilderness. The possibility of future wilderness classification triggers a Forest Service obligation to disclose the fact that development will affect a 5,000-acre roadless area. The court finds that even though the Service discussed in its NEPA documents the impact of the sale on resources in the proposed logging units, it did not address the effect of the sale on the roadless area west of the jeep trail and it did not disclose that inventoried and uninventoried lands west of the jeep trail constitute one 5,000-acre roadless area. The Forest Service's obligation to take a "hard look" at the environmental consequences of the proposed sale and consider a no-action alternative require it, at the very least, to acknowledge the existence of the 5,000-acre roadless area.

Counsel for Plaintiff
Todd D. True
Sierra Club Legal Defense Fund
705 Second Ave., Ste. 203, Seattle WA 98104
(206) 343-7340

Counsel for Defendant
Joan M. Pepin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Nelson and Canby, JJ.