Thomas v. Peterson

753 F.2d 754 (1985)

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Nature of the Case

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Facts

Ps challenge actions of D in planning and approving a timber road in the Jersey Jack area of the Nezperce National Forest in Idaho. In 1974, D had produced the Nezperce Combined Timber Management Plan and Forest Road Program for the entire Nezperce National Forest. Some timber harvesting was to take place in the Jersey Jack area, but there was no discussion of the proposed road. An EIS accompanied the Plan, but that EIS did not purport to satisfy the requirements of NEPA for individual areas within the National Forest. D prepared ten unit plans and accompanying EIS's for areas in the Nezperce Forest. No unit plan was prepared for the Jersey Jack area. In 1976, Congress passed the National Forest Management Act. Thereunder, D replaced the unit planning process with a single planning process for the entire Nezperce Forest. Ps appealed the Forest Supervisor's decision on the road to the Regional Forester, who affirmed the decision on May 26, 1981. The Regional Forester's decision was then appealed to the Chief of the Forest Service, who affirmed the decision on November 24, 1981. Ps filed this action in that NEPA requires D to prepare an EIS that analyzes the combined effects of the proposed road and the timber sales that the road is designed to facilitate and that the road was likely to affect the Rocky Mountain Gray Wolf, an endangered species. The Forest Service is presently preparing a Forest Management Plan and accompanying EIS, but neither the plan nor the EIS was complete at the time that this appeal was filed. The court concluded that the procedural violation was de minimus and refused an injunction. P appealed.

Under the ESA an agency must first consult with Fish and Wildlife Service (FWS) to determine if any endangered species are present. Under Section 7, D was required to follow a three-step procedure: (1) It must inquire with FWS about the presence of endangered species in the area; (2) If species are present it must prepare a biological assessment to determine if the actions are likely to affect the species; (3) If the answer is yes to step 2, D must consult with FWS. FWS then issues a biological assessment of its own to determine if the agency must halt its actions or to take other measures to protect the species. D did not do so, because it was already aware of the Rocky Mountain Gray Wolves were present in the road area. Ps claimed that D did not follow the procedures. The court agreed with D and held that because D was aware of the wolf, it need not follow the procedures. The court refused to enjoin the access road and held that Ps had not met their burden showing that the proposed actions would have an effect on the wolves. On appeal, Ps asserts that TVA v. Hill made an injunction mandatory when the ESA is violated. D claims that the procedural violation was de minimus and that TVA does not apply to such violations. In part, D’s theory is that the substantive provisions in ESA allow for a more forgiving enforcement of procedural violations and that TVA involved the National Environmental Policy Act, which was more procedural.