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Mahler v. United States Forest Service

October 20, 1997

ANDY MAHLER, PLAINTIFF-APPELLANT,

v.

UNITED STATES FOREST SERVICE, KENNETH DAY, FOREST SUPERVISOR, HOOSIER NATIONAL FOREST, ET AL., DEFENDANTS-APPELLEES.

ANDY MAHLER, PLAINTIFF-APPELLANT,

v.

UNITED STATES FOREST SERVICE, KENNETH DAY, FOREST SUPERVISOR, HOOSIER NATIONAL FOREST, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Indiana, New Albany Division.

No. 96 C 146 Gene E. Brooks, Judge. No. 97-1253 Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 96 C 170 Sarah Evans Barker, Chief Judge.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

ARGUED SEPTEMBER 17, 1997

DECIDED OCTOBER 20, 1997

In these consolidated appeals, Andy Mahler seeks review of two separate decisions of the United States District Court for the Southern District of Indiana. In each ruling, the district court upheld a twenty-day public notice and comment period concerning environmental assessments prepared on salvage sales conducted pursuant to the Rescissions Act. For the reasons set forth in the following opinion, we affirm the decisions of the district court.

I.

BACKGROUND

The forest salvage operations at issue involve the Pleasant Run Unit of the Hoosier National Forest, about 500 acres of which were heavily damaged by a severe storm and tornado that swept across portions of that unit on April 19, 1996. According to the scoping letter sent to solicit public comment by Forest Supervisor Kenneth G. Day on May 16, 1996, the storm's effects were compounded by damage from heavy snows and winds earlier in the year. R.14, A1 at 1. The letter detailed the damage caused by the storm and the hazards created by the downed trees. A map of the damaged area and photographs of felled trees in the area were enclosed. Id. at 2-3. The letter stated that "[s]alvage of this material should begin as soon as possible if salvaged material is to be usable." Id. at 1. The Forest Supervisor sought comments by June 17, 1996 (32 days from the date of the letter), on his proposal for emergency salvage of the damaged trees on the Pleasant Run Unit. Id.

After the first public comment period, the Forest Service prepared an "environmental assessment" ("EA") for each Pleasant Run Timber Salvage Project, which was located in the northern portion of the Brownstown Ranger District, between State Highway 446 and Highway 135 in Lawrence and Jackson Counties, Indiana. One EA assessed the advisability of harvesting 162 acres of storm-damaged pine from that area. R.14, A3 at 48. The other EA reviewed the reasons for removing storm-damaged hardwood timber from 55 stands in that sector of the forest. Forest Supervisor Day recommended harvesting 3,138 thousand board feet of hardwoods on 752 acres. Id. at 47. He explained that taking no action would be unwise, for it would not "meet the need to reduce fire hazard, reduce risk to nearby healthy hardwood trees from insects, reduce the safety hazard from weakened trees, or improve access to National Forest System land." Id. The two projects are appropriately named the Pleasant Run Emergency Pine Salvage Project and the Pleasant Run Emergency Hardwood Salvage Project.

For each project, the Forest Service provided a twenty-day period for public comment. *fn1 In determining that a twenty-day period of comment was appropriate, the Forest Service relied upon a Memorandum of Agreement ("MOA") entered into by the Departments of Agriculture, the Interior, and Commerce with the Environmental Protection Agency. This interdepartmental MOA, dated August 9, 1995, provided for a twenty-day public comment period on environmental assessments prepared under the Rescissions Act. *fn2

Mr. Mahler challenged this twenty-day period. He contended that the interdepartmental MOA was contrary to the Public Participation Law, 16 U.S.C. sec. 1612 Note. The district court, each case being decided by a different judge of that court, determined that the Secretary of Agriculture, acting through the Chief of the Forest Service, *fn3 had acted within his statutory authority.

II.

DISCUSSI ...


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