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KETTLE RANGE CONSERVATION GROUP v. BERGLUND

November 26, 1979

KETTLE RANGE CONSERVATION GROUP, Plaintiff,
v.
BOB BERGLUND, Secretary, United States Department of Agriculture; R. MAX PETERSON, Chief, United States Forest Service; R. E. WORTHINGTON, Regional Forester, Region Six; United States Forest Service; ROBERT B. TERRILL, Forest Supervisor, Colville National Forest, United States Forest Service, and the UNITED STATES FOREST SERVICE or agency of the UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants. NORTHWEST PINE ASSOCIATION and SAND POIL LUMBER COMPANY, Defendant-Intervenors.



The opinion of the court was delivered by: HAUK

MEMORANDUM DECISION

All of the evidence having been fully presented, and the Court being in receipt of and having considered all of the parties' memoranda of points and authorities, and the points and authorities therein contained, and based upon the evidence, said points and authorities, and the law applicable to this proceeding, and all the records and files herein, now makes and enters the following decision which shall constitute its Findings of Fact and Conclusions of Law pursuant to Rule 52(a), Federal Rules of Civil Procedure.

 The "Ryan Timber Sales Area" approximately one thousand eight hundred eighty-nine (1889) acres, of which approximately 174 acres are within the Profanity Roadless Area, is part of the lands owned by the United States of America and is managed by the United States Forest Service of the United States Department of Agriculture, pursuant to law and official federal regulations contained in the United States Code and in the Code of Federal Regulations.

 On March 24, 1978, after a period of approximately four (4) months for public comment and consultation with, and consideration of the view of numerous federal, congressional, Washington State, Ferry County Washington businesses and other organizations, universities, colleges, private groups including the plaintiff, Kettle Range Conservation Group, and private individuals, as well as documentary responses, all of which are meticulously listed and which number at least an estimated thousand such parties, pages 103-106, Government Defendants' Exhibit A, the final Environmental Impact Statement on the Kettle Range Planning Unit of the Colville National Forest, in which the Ryan Timber Sale Area is located, was published by the United States Forest Service. This final Environmental Impact Statement constitutes a programmatic and comprehensive review of the environmental effects of Forest Service Management goals, objectives, and implementations for the Kettle Range Planning Unit, an area of approximately 232,550 acres, including the Profanity Roadless Area and the Ryan Timber Sale Area previously described herein.

 On August 8, 1979, the Forest Service published a document entitled Environmental Assessment Report for the specific area located within the Kettle Range Planning Unit, Colville National Forest, including the Ryan Timber Sale and the Profanity Roadless areas. The Environmental Assessment Report contained a determination that the Forest Service plan for management of these areas described in, and the action contemplated in the Environmental Assessment Report, would not significantly affect the quality of human environment so as to necessitate processing in an Environmental Impact Statement.

 The United States Forest Service personnel investigated and examined the use of the Ryan Timber Sale Area and the entire Kettle Range Planning Unit of the Colville National Forest, as it included the Profanity Roadless Area, for purposes of its timber management program, all as reflected in the Environmental Impact Statement, Government Defendants' Exhibit A.

 The Forest Service determined, pursuant to its legal duties and obligations, that timber harvesting was and is a legitimate, legal, appropriate, reasonable, and indeed necessary management goal, and objective for the Kettle Range Planning Unit area, and that existing methods of treatment would be inadequate. This, of course, includes the Ryan Timber Sale Area.

 In its programmatic Environmental Impact Statement, Government Defendants' Exhibit A for the Kettle Range Planning Unit of the Colville National Forest, the Forest Service considered, examined, and discussed the possible adverse environmental impact of timber harvesting and concomitant road construction in connection therewith, in these areas. This Environmental Impact Statement provided the programmatic direction that the Forest Service would take for land management within the Ryan Timber Sale Area.

 The specific goals and objectives for this area are contained in the Environmental Assessment Report, Plaintiff's Exhibit 1.

 The Environmental Impact Statement, Government Defendants' Exhibit A, in its 159 pages of text, and its 17 appendices, considers and evaluates the overall timber management policies for these areas and describes the Forest Service proposal for timber management, historical prospectus of the whole Kettle Range Planning Unit area which includes the Profanity and Ryan Timber Sale areas, and it also considers the environmental situation. This Environmental Impact Statement considers and evaluates the environmental impact of timber management, as well as the favorable environmental effects of timber management and attendant road construction and indeed, the adverse environmental effects, and finally, the preventative, and the mitigating measures adequate to lessen and even eliminate those adverse effects, the relationship between short-term uses of man's environment, and the maintenance of long-term productivity for these areas, and finally, the irreversible and irretrievable commitment of resources in the areas. The Environmental Impact Statement also considers six alternatives (See Government Defendants' Exhibit A, page 96, Et seq.) to the Forest Service's proposed action, or best alternative, and concludes that silvicultural, or growing and harvesting of timber, is the preferred method of Forest Service thinning and logging, and was the best alternative for the Ryan Timber Sale Area in particular, and certainly all of the areas designated as non-wilderness throughout the Kettle Range Planning Unit area.

 The Environmental Impact Statement also reflects the fact that the Forest Service consulted with other agencies, experts, and the public, including the plaintiff, in its preparation. The Environmental Assessment Report for the Ryan Timber Sale Area puts into effect the action proposed in the Environmental Impact Statement, and also includes the six alternatives; and the preferred alternative that was selected, namely timber harvesting, in the Environmental Impact Statement, was named as the objective and target goal contemplated by the Forest Service.

 The Court specifically finds that the Kettle Range Planning Unit of the Colville National Forest, including the Profanity Roadless Area and the Ryan Timber Sale Area constitute land masses of a relevantly homogeneous geographical and geological character. The Court more specifically finds that the Ryan Timber Sale Area is an area approximately 1,089 acres, of which approximately 174 areas are in the Profanity Roadless Area and the rest of which is in the Kettle Range Planning Unit of the Colville National Forest. Each such area is not materially different from the others, or from each other, in their substantial character as to earth, foliage, timber, the flora and fauna throughout being, if not exactly identical, substantially identical, in character. The plaintiff has alleged in his first cause of action that the Environmental Assessment Report for the Ryan Timber Sale Area did not discuss the "no action" alternative. The Court finds to the contrary, because the Environmental Assessment Report specifically refers to and discusses the "no action" alternative on page 12 thereof, Plaintiff's Exhibit 1. Although the title given to this "no action" alternative is "no treatment" alternative, the alternative is still the same. In plaintiff's second cause of action it is alleged that the alternative of deleting some 174 acres in the Profanity Roadless Area, to wit, that portion of the Ryan Timber Sale Area, was not discussed by the Forest Service in its official documents. Again the Court, to the contrary, finds that this alternative is fully covered in the "no treatment" alternative. Also, this alternative was adequately discussed and determined in at least three decisions by officials in high federal administrative positions, including President Carter; the Secretary of Agriculture, Mr. Berglund; the Assistant Secretary of the Department of Agriculture, Mr. Cutler; the Chief of the United States Forest Service, Mr. Maguire; the Regional Forester, Mr. Leisz and the Superintendent of the Colville National Forest, Mr. Terrell.

 To require these federal officials, as plaintiff suggests, to reconsider these decisions would be a completely wasted effort, and a complex exercise in futility, and the Court won't require that.

 Plaintiff's third cause of action alleges that the Environmental Assessment Report is inadequate because it fails to consider long range and cumulative impacts. Again, to the contrary, the Court finds and concludes that on page 25 of the report, Plaintiff's Exhibit 1, there is a specific determination that the proposed Forest Service and federal government action will have no significant effect on the guilty of human environment. The long range impacts, including impacts on wildlife, grazing, visual quality, ...


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