A message from the 'appealist' discussion list Mark and Kristi: 1. The factual issue in Wilderness Society v. Tyrrel was resolved on remand in the district court as an injunction on the proposed logging and roadbuilding adjacent to the South Fork Trinity River on the grounds that those activities would harm the river's outstandingly remarkable salmon. I have the order on remand if you want me to fax it to you. 2. The BLM never filed a notice of appeal of the decision against it in Oregon Natural Desert Assoc. v. Green. The ranchers did, but withdrew their notice after the government didn't file. 3. I think that generally you could challenge a timber sale in a WSR river area on substantive grounds without challenging the management plan for the river. As an analog In the Ninth Circuit as least, and before Ohio Forestry, a plaintiff could challenge a site-specific management decision without challenging the plan on which it may have been based (Smith v. USFS). But the plan's standards would give USFS coverage if the sale implemented the standards. Depends on what your claim may be. 4. No one to my knowledge has challenged a timber sale as a water resources project (section 7). I think that it would lose. 5. If the timber sale is going to create sedimentation, then challenge it as a degradation of water-related values (sections 10 and 12). See especially section 12(c) which requires USFS to cooperate to preserve water quality. Find out what the state water quality standards are, and use them as an objective measurement of the permissibility of new sedimentation. 6. Any illegality of leaving trees as windthrow sounds too remote. 7. Don't forget about challenging the EA as an insufficient document to answer all of the substantive claims that you may raise. As you know, an EA must be accompanied by a FONSI, which can only follow resolution of the "significance" of an action, including whether it "threatens a violation of Federal" law. 40 CFR 1508.27(b)(1). Again in the Ninth Circuit, the court has relied on that provision to find that an EA is deficient in an analogous timber sale situation for failing to analyze and disclose exactly how the sale wouldn't violate the Clean Water Act. Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1193 & 1195 (9th Cir. 1988). 8. Check out the new summary judgment order and opinion in Oregon Natural Desert Assoc. v. SIngleton, which should be on Westlaw, and speaks to WSRA's substantive mandates, bad grazing, and a crummy EA. A [premature] notice of appeal of that decision has been filed by the Oregon Cattlemen's Association, but a final judgment hasn't been issued. Good luck. >>> "mark&kristi" 04/27/99 09:41am >>> ===== A message from the 'appealist' discussion list ===== The Hiawatha national forest in Michigan has issued a draft EA for a timber sale, some of which is going to occur inside an actual wild and scenic river corridor. I did a little research on case law involving wild and scenic rivers, and there isn't a whole lot out there. I know that some of the folks who were involved in some of these cases are on this list, so i thought i'd throw out some questions. In Wilderness Soc. v. Tyrrel, 918 F2d 813, a narrow question was resolved regarding whether or not a management plan for a W&SR was required before an agency could undertake any actions which may affect the river. The 9th circuit wrote in their conclusion tho, "The factual dispute as to the impact of the planned sale, and therefore as to whether the FS has fulfilled its obligations under secs. 10 and 12 of the Act, remains before the district court...." My first question is, how did this question ever get resolved???? A second question involves the case Oregon Natural Desert Assn v. Green, 953 F Supp 1133, 1997. In that case, ONDA won on NEPA and WSRA claims regarding grazing in a corridor. Did the BLM appeal that case and what is the status? Do you think that a party could challenge a site specific decision in a W&SR corridor on the grounds that it violates the WSRA without challenging the management plan for the river, or would the management plan have to be challenged at the same time? What if the management plan didn't get appealled? Could you still bring a challenge that a site specific project violated the substantive requriements of the WSRA? Finally, I'm curious about some possible interpretations of some of the language in the WSRA and the underlying regs. The regs define construction and associated terms as "Construction means any action carried on with Federal assistance affecting the free-flowing characteristics or the scenic or natural values of a Wild and Scenic River or Study River." "(c) Any other license, permit, or authorization which may be required by an agency or Department of the Federal Government before, during, or after construction of a water resources project." "Water resources project means any dam, water conduit, reservoir, powerhouse, transmission line, or other project works under the Federal Power Act (41 Stat. 1063) as amended, or other construction of developments which would affect the free-flowing characteristics of a Wild and Scenic River or Study River." Has anyone ever tried to challenge a timber sale in which logs would be skidded and hauled, creating gullies, etc. which change the waterflow into the river, as a "water resources project"? It sure seems to me that the definitions are obviously broad. Clearly, a significant enough disturbance in the nearby watershed could "affect the free-flowing characteristics" of a river by depositing enough sediment into the river to change its flow. Or, it could leave trees along the banks subject to windthrow into the river. Just curious if this has ever been tried. Finally, the following sections appear in the Act: "All public lands within the authorized boundaries of any component of the national wild and scenic rivers system which is designated in section 1274 of this title or which is designated after October 2, 1968, for inclusion in that system are hereby withdrawn from entry, sale, or other disposition under the public land laws of the United States... "All public lands which constitute the bed or bank, or are within one-quarter mile of the bank, of any river which is listed in section 1276(a) of this title are hereby withdrawn from entry, sale, or other disposition under the public land laws of the United States for the periods specified in section 1278(b) of this title." Does anyone know the intent of Congress in passing these sections? Is this strictly related to the real estate disposition, or could "other disposition" mean something else, have a broader meaning. Any assistance anyone can provide me in this matter, I would greatly appreciate. Mark Donham Kristi Hanson RACE/Heartwood RR # 1, Box 308 Brookport, IL 62910 618-564-3367