Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, December 17, 1994 TAG: 9412190060
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: CATHRYN McCUE STAFF WRITER
DATELINE: LENGTH: Medium
A federal judge on Friday told the Jefferson National Forest and a group of power line opponents to settle their differences out of court.
Appalachian Power Co., which is proposing a 765,000-volt power line; the forest, which is doing an environmental impact statement on it; and the citizens whose property it might cross all took the judge's action as a sign of hope for their side.
"It's positive that he didn't throw it out," said Donna Muhly, one of 64 residents in Montgomery, Giles and Bland counties who filed suit against the forest in August. They contend they were denied due process because they were not included in "scoping," an early public comment period in the environmental report process.
"The question is whether the opportunities for comment are being afforded," said Forest Service project coordinator Frank Bergmann. "We believe that they are." Bergmann still is reviewing new information from people about mountain springs, geologic faults, unfragmented woods and other natural resources in the path of the proposed line from West Virginia to Cloverdale.
"I think it's overall good for everybody if they can keep it out of court," said Carl Persing, an Apco executive. The project, targeted for completion in 1998, is behind schedule, he said, mostly because the forest has been inundated with public comments.
Though not directly involved in the lawsuit, six Apco representatives in gray suits lined the front row at the hearing. About 50 power line opponents sat shoulder to shoulder in the other seats, and another 20 stood in the back during the hour-long session.
"I think it would just be better for everybody to work ... out [a compromise] not too burdensome on government and give the plaintiffs an opportunity to be heard," U.S. District Court Judge James Turk said. He took the matter under advisement for 10 days.
Turk seemed reluctant to get entangled in the controversy, which encompasses three federal agencies, two states, the utility and a growing number of opponents. He repeatedly asked why the case was before him when the power line might not even be built. Neither Virginia nor West Virginia has ruled on the line, nor has the Forest Service issued a draft environmental impact statement.
The Forest Service in 1991 and 1992 conducted a scoping process in Craig, Roanoke and Botetourt counties. Based on that information, it drew numerous alternative routes, including ones in Montgomery, Giles and Bland counties. Those maps were released in July. At issue is whether citizens in the new counties should be allowed to comment under a formal scoping period.
Assistant U.S. attorney Richard Lloret, representing the forest, said the court has no jurisdiction because the forest has not taken any action.
"We don't have any bulldozers knocking down trees here," he said. Lloret also stressed that the forest has "bent over backwards" to provide opportunities for people to comment, and it continues to receive letters and calls.
But William S. Bilenky, a Richmond lawyer hired by the citizens, said the forest took action when it closed the scoping process and conducted "secret studies" to locate its alternative routes.
Bilenky said afterward that in the myriad lawsuits filed over the years under the National Environmental Policy Act, which requires federal agencies to prepare environmental impact statements, there is no precedent for whether closing the scoping process is considered an agency action that would open a door for judicial appeal.
He added that he was encouraged the judge "put pressure on the Forest Service to negotiate in good faith."
by CNB