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DONHAM v. USDA

September 8, 1989

MARK DONHAM, Plaintiff,
v.
U.S. DEPT. OF AGRICULTURE; CLAYTON YEUTTER, SECRETARY U.S. FOREST SERVICE; F. DALE ROBERTSON, CHIEF OF U.S. FOREST SERVICE, EASTERN REGION; FLOYD MARITA, REGIONAL FORESTER, SHAWNEE NATIONAL FOREST; RODNEY SALLEE, FOREST SUPERVISOR AND C & G TIMBER, Defendants



The opinion of the court was delivered by: FOREMAN

 JAMES L. FOREMAN, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on the plaintiff's pro se petition for a temporary restraining order. Plaintiff is seeking to restrain the defendants from proceeding with a timber sale and harvest in an area of the Shawnee National Forest known as the Town Hall Sale region. The Court held an evidentiary hearing on September 5, 1989.

 Plaintiff is a native Southern Illinoisan with a noteworthy concern for environmental issues in general, and the Shawnee National Forest in particular. Plaintiff's concern for environmental issues endemic to Southern Illinois led him to co-found two environmental groups: the Association of Concerned Environmentalists (ACE) and the Regional Association of Concerned Environmentalists (RACE). *fn1" Although plaintiff's complaint alleges that members of ACE and RACE would be directly affected by the proposed timber harvest in Town Hall, the evidentiary hearing revealed that the plaintiff himself had a much more tenuous connection to Town Hall. Namely, plaintiff lives 90 miles from Town Hall and has visited the area only once. Moreover, plaintiff's visit on that occasion was in response to the proposed harvest and in reference to his opposition to clear cutting and group selection harvesting methods.

 I. Plaintiff's Standing.

 Plaintiff's meager association with the Town Hall Sale area, which is the focus of his petition for a temporary restraining order, raises the issue of whether plaintiff can meet the threshold requirement of standing to sue. Those who do not possess standing may not litigate as plaintiffs in courts of the United States. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 475-76, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The plaintiff is contesting the actions of a federal administrative agency. The question of standing, therefore, is controlled not only by Article III of the Constitution, but by § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702 (1977). City of Milwaukee v. Block, 823 F.2d 1158, 1169 (7th Cir. 1987).

 In order to meet the standing requirement of Article III, a plaintiff must demonstrate that he has "personally suffered some actual or threatened injury." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). The Court has further held that an injury to the environment is sufficient to support standing as to any plaintiff who uses the affected environment. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973); Sierra Club v. Morton, 405 U.S. 727, 733, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). These cases do, however, require that the plaintiff actually "use" the land in question in order to have standing to redress perceived environmental concerns. Sierra Club, 405 U.S. at 735. And while some circuits have held that isolated uses can give rise to standing, see, e.g., Animal Welfare Institute v. Kreps, 183 U.S. App. D.C. 109, 561 F.2d 1002, 1007-1010 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 726, 54 L. Ed. 2d 756 (1978), no court has gone so far as to hold that a single visit to land, prompted by revelations arising during an ongoing environmental dispute over the use of the land, will give rise to standing should that dispute ripen into litigation. Therefore, this Court finds that the plaintiff lacks standing under Article III of the Constitution to bring this dispute before the Court.

 II. The Merits of Plaintiff's Request for a Temporary Restraining Order.

 Even if plaintiff had established standing to bring this matter before the Court, his petition for a temporary restraining order would nevertheless be denied for failure to establish adequate grounds for the issuance of such an order. In order to support the entry of a temporary restraining order, the movant must show (1) the existence of irreparable harm, (2) the absence of an adequate remedy at law, (3) a probability of ultimate success on the merits, (4) that the threat of harm to the movant outweighs the harm that would result to the opposing party should the order be issued, and (5) that the public interest will not be disserved by the granting of temporary injunctive relief. United States v. Phillips, 527 F. Supp. 1340, 1343 (N.D.Ill. 1981). Plaintiff has failed to demonstrate a probability of ultimate success on the merits of his claim. He has also failed to establish that he has suffered irreparable harm which outweighs the harm that would result to the defendants should the order be issued.

 The gist of plaintiff's claim on the merits is twofold: (1) that the Forest Service used deficient methodology in its Environmental Assessment of the Town Hall Sale and in its Decisional Notice and Finding of No Significant Impact, and (2) that the Town Hall Sale should be made the subject of an environmental impact statement. *fn2" The harm which plaintiff alleges will arise from these claimed deficiencies is that old hardwood trees will be harvested without an adequate showing that they will regenerate, that certain species of plant and wildlife might be disrupted, that the effects of the harvest on soil and water conditions has not been adequately considered, and that the overall aesthetic quality of the Town Hall area will be changed.

 Plaintiff's claim that the Forest Service used deficient methodology in its preparation of the environmental assessment of the Town Hall Sale will likely fail on its merits.

 40 C.F.R. 1502.24 provides:

 
Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analysis in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix.

 As counsel for defendants correctly notes, 1502.24 does not adopt any specific methodology. A much more basic fault with plaintiff's claim, however, is that the above section relating to scientific methodology sets standards for an environmental impact statement, not an environmental assessment. The relevant provision ...


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