23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

authorization, nor the vague statements contained in the DEIS that adoption of
Alternative B would require amendment of the forest plan were sufficient to
notify the public that the Forest Service intended to remove the 40 percent habitat
protection guideline in its entirety from sections of the Forests. NEPA requires
full disclosure of an action with such serious environmental impacts. Moreover,
under Forest Service regulations, amendment of a forest plan requires notice and
comment procedures 36 C.F.R. § 219.10(1).
(AR -LD at 5128) (emphasis added).
The Court finds that the foregoing paragraph, albeit in a footnote at page 14 of their Notice, was
sufficient to put the Forest Service on notice of the alleged failure to allow public participation in
amending the forest plan.
Plaintiffs argue that they should be excused from the exhaustion requirement because
further agency appeal would have been futile in this situation, and the claims raise issues of
statutory interpretation. Plaintiffs argue that appeal of the issues they failed to raise in their
administrative appeals would have been futile because the "Forest Service was clearly biased
against Plaintiffs, as demonstrated by the Madigan memorandum." However, the Court cannot
simply "presume the agency would not have provided [Plaintiffs] with an adequate remedy had
the issue been raised before it." Bd. of County Comm 'rs of the County of Adams v Isaac, 18
F.3d 1492, 1499 (10 Cir. 1994). The existence of the Madigan memo does not demonstrate the
Forest Service had predetermined that bypass flows would not be imposed. Indeed, even when
the Madigan directive was in effect, the agency did not read the memorandum as prohibiting
bypass flows in all cases — on the very same day the agency declined to impose a bypass flow in
reauthorizing Long Draw Reservoir, it did include a bypass flow in the reauthorization of Joe
Wright Reservoir.
Plaintiffs also argue that the exhaustion requirement does not apply because the issues in
-12-