ELR Citation: ELR 21094
No(s). 95-36004 (9th Cir. Jun 20, 1997)

The court holds that the U.S. Forest Service is not required to complete a new environmental assessment (EA) before reissuing a special use permit for a new radio tower on Grey Butte in the Ochoco National Forest. The court first holds that the Forest Service did not violate the National Environmental Policy Act (NEPA), the National Forest Management Act, or the Administrative Procedure Act (APA) by allowing the new radio tower to be built in a manner inconsistent with a supplemental EA for the site and an amended site plan. The special use permit required that the new facility be built approximately 200 feet from the existing facility. Thus, the actual distance of 194 feet will not violate any permit or plan specifications. The court next holds that appellants' claim that the Forest Service would not grant its application for a special use permit to construct new antennas on Grey Butte because of possible interference problems with the new facility does not give rise to a valid claim under Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945). Ashbacker, which requires consolidated consideration of mutually exclusive license applications, does not apply to the Forest Service's decision to grant a special use permit, and even if it did, the two permit applications are not mutually exclusive because they do not compete for a single available authorization. The court then holds that the Forest Service did not act arbitrarily and capriciously by reissuing the special use permit without conducting a new EA, even though when the Forest Service reissued the permit it intended to build a major access road. The Forest Service concedes that an EA is required before construction of a new access road and intends to complete one. The tower project and the access road are not "connected actions," because construction of the tower doesnot automatically require construction of the access road. The court bars under res judicata an appellant's NEPA claim alleging injury to his aesthetic interests. The court also holds that the appellants' challenge to the Forest Service's decision to build an access road is not ripe under the APA until the Forest Service has made a final decision on the project.

[A related case in this litigation is published at 26 ELR 20829.]

Counsel for Plaintiffs
Ralph A. Bradley
44 W. Broadway, Eugene OR 97401
(541) 683-5574

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

Fletcher, Tashima, and Schwarzer,^* JJ.