ELR Citation: ELR 20225
No(s). 84-3887 (9th Cir. Feb 11, 1985)

The court holds that before building a road into the Jersey Jack area of the Nezperce National Forest, the Forest Service must prepare and environmental impact statement (EIS) on the road and associated timber sales and biological assessment under the Endangered Species Act (ESA), but that the agency need not demonstrate that the value of timber to be harvested exceeds the cost of the road. The court first holds that the Forest Service violated the National Environmental Policy Act (NEPA) by not preparing an EIS covering the cumulative effect of the road construction and timber sales. In a note, the court rejects the argument that a congressional decision not to include the land in adjacent wilderness exempted the Forest Service from complying with NEPA in managing the land. Under the Council on Environmental Quality's (CEQ's) NEPA regulations, the road and sales are "connected actions," which must be considered together in a single EIS. Also, the comments of other federal and state agencies raise sufficiently substantial questions about the cumulative effects of the road and sales to require an EIS under the regulations. These conclusions are also supported by the case law. The Forest Service may not approve the road and wait until individual sales are planned to address the cumulative effects, because the actions are too tightly interrelated. The court rejects the Forest Service's contention that the sales are too speculative to analyze now, noting that the sales are definite enough to justify construction of the road and that the Forest Service has already prepared environmental assessments for three sales.

The court next rules that the cost of the road need not be less than the value of the timber opened for harvest. The declaration in National Forest Management Act §8(a) that roads be "economical" is not a specific requirement. Statutes referred to in §8(a) that relieve timber purchasers from bearing the costs of road improvements not required for logging do not by implication require that the purchasers pay all other costs of building roads. Similarly, a statute requiring small operators to pay road costs in some circumstances does not imply that all operators must pay road costs in all circumstances. The Forest Service's interpretation of "economical" to allow consideration of benefits other than timber access is reasonable.

Finally, the court holds that the Forest Service violated the ESA by failing to assess the road's effect on endangered Rocky Mountain Gray Wolves, which may inhabit the area. As with a NEPA violation, the proper remedy for a procedural violation of the ESA is to enjoin the proposed action until the violation is remedied. The plaintiffs do not need to establish a substantive violation of the act to merit an injunction, and it is not the place of the court to supplant the agency by performing a substantive assessment. Nor can the court consider an assessment that the agency has allegedly made but failed to make part of the public record.

[The trial court's opinion appears at 14 ELR 20832.]

Counsel for Appellants
Michael Axline
Pacific Northwest Resources Clinic
School of Law, U. of Oregon, Eugene OR 97403
(503) 686-3823

Bruce Bowler
910 W. Main St., Boise ID 83702
(208) 342-0352

Counsel for Appellee
Jeffery W. Ring, U.S. Attorney
Box 037, 550 W. Fort St., Boise ID 83724
(208) 334-1211

Albert M. Ferlo, Dirk D. Snell
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Counsel for Appellee-Intervenors
Runft, Leroy, Stecher, Coffin, Adland & O'Riordan
P.O.Box 1960, Boise ID 83701
(208) 344-6100

Before: WRIGHT, SNEED, and ALARCON, Circuit Judges.