ELR Citation: ELR 20829
No(s). 94-35605 (9th Cir. Mar 18, 1996)

The court upholds a special use permit that the U.S. Forest Service granted to a company that sought to build a radio facility in the Crooked River National Grassland in the Ochoco National Forest, Oregon. Plaintiff, a competitor of the company, alleged that the Forest Service violated the National Environmental Policy Act (NEPA) by issuing the permit and violated the National Forest Management Act by failing to comply with the Forest Service's regulations and the guidelines in its Manual and Handbook. The court first holds that it has jurisdiction. The competitor exhausted all administrative remedies even though it did not complain to the Federal Communications Commission, because the Forest Service, not the Commission, issued the permit and has the authority to provide a remedy. The court next holds that the Forest Service's Handbook and Manual do not have independent force and effect of law. They are not substantive in nature and were not promulgated in accordance with the procedural requirements of the Administrative Procedure Act or pursuant to independent congressional authority. The court also holds that even if the Manual and Handbook have been incorporated by reference into the Forest Service's regulations, they would not bind the Forest Service. U.S. Supreme Court precedent explicitly requires that in order to bind an agency, rules must be substantive and promulgated according to certain procedural requirements. The court next holds that the Forest Service's decision to issue the permit did not violate the compatibility-of-use provision at 40 C.F.R. §251(i)(1), despite the competitor's complaints that the new tower would increase interference at the site. The provision is discretionary, and even though there was no evidence of an incompatibility, the Forest Service performed a compatibility assessment. The court next holds that the competitor does not have standing to assert a claim under NEPA. The competitor's only complaint is that the issuance of the permit will cause economically harmful interference, rather than environmental harm. Finally, the court refuses to impose sanctions against the competitor and its counsel.

Counsel for Plaintiff
Michael D. Axline
Johnson, Kloos & Sherton
767 Willamette St., Ste. 203, Eugene OR 97401
(541) 687-1004

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

Before Wallace, Nelson, and Brunetti, JJ.