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GLISSON v. UNITED STATES FOREST SERV.

October 23, 1992

JOSEPH M. GLISSON, Plaintiff,
v.
UNITED STATES FOREST SERVICE, et al., Defendants.



The opinion of the court was delivered by: JAMES L. FOREMAN

 FOREMAN, Senior District Judge:

 Before the Court is the plaintiff's Motion for Preliminary Injunction (Document No. 5). The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (1988).

 I. BACKGROUND

 The plaintiff filed this lawsuit to halt two timber sales in the Shawnee National Forest. During a hearing on the plaintiffs request for a temporary restraining order, the Forest Service informed the Court that one of the projects, known as Opportunity Area 6, was already under administrative stay. The Court, therefore, has considered the plaintiffs request for a preliminary injunction only with respect to the other project, known as the Whoopie Cat Hardwood Sale.

 The Whoopie Cat project has been in the planning stages for more than four years. The Forest Service initially planned to clearcut the hardwoods in the sale area and issued a decision notice to that effect on February 24,1988. In response to public outcry, however, the Forest Service withdrew the decision notice and sought public comment on its alternative plan to cut the Whoopie Cat hardwoods through the group selection and individual tree selection harvest methods.

 In compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1988), the Forest Service prepared an environmental assessment of the revised timber sale proposal. Based upon the results of the environmental assessment, the Forest Service issued a Decision Notice and Finding of No Significant Impact on August 7,1990. The Forest Service argues that the plaintiff did not personally appeal this decision and, therefore, is not entitled to bring this lawsuit because he did not exhaust his administrative remedies. However, the plaintiff argues that he was involved in an appeal filed by the Regional Association of Concerned Environmentalists, of which he is a founding member.

 The Forest Service opened bids for the Whoopie Cat project in September 1990, and defendant Dale Brent was identified as the high bidder. The timber sale contract was not immediately awarded. The precise reason for the delay is unclear. However, the record indicates that during this time period, the Forest Service was in the process of amending its 1986 Shawnee Forest Plan, as required under a 1988 settlement agreement. *fn1" Under the amendment, the Forest Service proposed a major change in its harvesting techniques, moving away from the 1986 plan's emphasis on clearcut and group selection methods and adopting a method described as "gap-phase dynamics." *fn2"

 The Forest Service began the formal process of amending the plan by issuing a notice of intent on June 30,1989. A proposed Amended Plan and Draft Supplemental Environmental Impact Statement were issued for public review on May 17, 1991. The final decision to amend the plan was documented in a Record of Decision and Final Supplemental Environmental Impact Statement issued on March 23, 1992. On May 14, 1992, the decision was withdrawn and reissued, with a new decision date, to reflect a minor change in the amended plan's guidelines for the Indiana and gray bats.

 The Forest Service shall work with the purchasers of sales already under contract on the Shawnee National Forest to achieve mutually acceptable modifications to said contracts so that the harvest of timber under such contracts may occur consistent with the expected management prescriptions and/or practices envisioned in the Draft Amendment to the Forest Plan for the Shawnee National Forest issued in 1991.

 To the greatest extent possible, and pending final approval of the Draft Amendment to the Shawnee National Forest Plan, none of the funds available in this Act shall be used for preparation of timber sales using clearcutting or other forms of even aged management in hardwood stands in the Shawnee National Forest, Illinois.

 Department of the Interior and Related Agencies Appropriations Act, Pub. L No. 102-154, 105 Stat. 909, 1019 (1991).

 As a result of this congressional directive, the Forest Service modified the terms of the Whoopie Cat timber sales contract, reducing the size of the timber cuts from a maximum of two acres in size to a maximum of .6 acre as provided in the proposed amended forest plan. The Forest Service then awarded the sale to Dale Brent Logging on May 5, 1992, but did not supplement its ...


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