Native Ecosystems Council v. Reese

No. CV 01-172-M-DWM (212 F. Supp. 2d 1227) (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA July 25, 2002)

ELR Digest

The court holds that a U.S. Forest Service ruling on an environmental group's appeal to the revised forest plan (RFP) of the Targhee National Forest was untimely and, thus, prevented the group from developing a full administrative record that could be used to challenge Forest Service projects tiered to the RFP. The court first holds that the Forest Service ruling was untimely. Under the Forest Service regulation 36 C.F.R. § 217.8(f)(1), the Forest Service must issue a decision on an RFP appeal within 160 days of notice of appeal. The group filed its appeal in 1997, but the Forest Service did not issue a decision on the appeal until 2002. The court next holds that the group has standing to challenge the Forest Service's failure to respond because the group suffered an injury-in-fact when the Forest Service's failure to issue a decision caused the group the procedural harm of preventing full development of an administrative record that the group could use for appeals and subsequent litigation. The court further holds that although the Forest Service ruled on the group's RFP appeal, the case is not moot because the justiciable controversy before the court is the group's ability to develop a full administrative record to challenges of two projects tiered to the Targhee RFP. The Forest Service's delay in ruling on the RFP appeal led to an uninformed record for review of the group's challenge to the two projects. This issue is not moot, and a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the practice's legality. The court moreover holds that by refusing to rule on RFP appeals within the required time while also approving projects tiered to the RFP, the Forest Service is preventing administrative appellants from developing full administrative records on the projects and from seeking judicial review of the forest plan. This practice is not contemplated by the regulations and is arbitrary and capricious. The Forest Service is not precluded from devoting agency resources to developing projects tiered to the RFP during pending RFP appeals, but the Forest Service may not advance the project to the scoping stage and seek public review until a decision has been issued on an RFP appeal. Therefore, the Forest Service is enjoined from implementing projects tiered to an RFP until a decision has been rendered on an RFP appeal.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-551).

Counsel for Plaintiffs
Sarah McMillan
Law Office of Sarah McMillan
604 Blaine St., Missoula MT 59801
(406) 549-3895

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

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]