23G

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

scenic and esthetic values and fish and wildlife habitat and otherwise protect the environment"
mandates that WSSC's authorization include the requirement for minimum bypass flows.
Plaintiffs also contend that the Forest Service wrongfully relied on the illegally promulgated
regulation issued by Secretary Madigan.
The government responds that FLPMA is not focused solely bn protecting the
environment. The government argues that the Forest Service has discretion when implementing
the requirements of FLPMA, and that national forest lands are managed under a congressional
multiple -use and sustained -yield mandate. The government also argues that the record supports
its decision. Defendant discounts the Madigan Policy asserting that it did not control its
decision.
As set forth previously, Section 505 of FLPMA states: "Each right -of -way shall contain —
(a) terms and conditions which will (I) carry out the purposes of this Act and rules and
regulations issued thereunder; [and] (ii) minimize damage to scenic and esthetic values and fish
and wildlife habitat and otherwise protect the environment .... " 43 U.S.C. § 1765. The Forest
Plan suggests that the Forest Service determined that the most appropriate way to minimize
damage to fish habitat is to maintain such habitat at least at 40 percent or more of potential,
requiring the Forest Service to "manage waters capable of supporting self - sustaining trout
populations to provide for those populations." The purposes of FLPMA include: (1) the
establishment of goals and objectives "as guidelines for public land use planning, and that
management be on the basis of multiple use and sustained yield unless otherwise specified by
6 FLPMA § 103(0 defines "right -of -way" as "an easement, lease, permit, or license to occupy,
use, or traverse public lands granted for the purpose listed in subchapter V of this chapter." 43 U.S.C. §
1702(0
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