Klamath-Siskiyou v. Bureau of Land

• Decision Date: 28 October 2004
• Docket Number: No. 03-35461.,03-35461.
• Citation: 387 F.3d 989
• Parties: KLAMATH-SISKIYOU WILDLANDS CENTER, an Oregon non-profit organization, Plaintiff-Appellant, v. BUREAU OF LAND MANAGEMENT, an agency of the United States Department of the Interior; Richard Drehobl, in his official capacity as the Field Manager of the Ashland Resource Area of the Bureau of Land Management's Medford District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

387 F.3d 989

KLAMATH-SISKIYOU WILDLANDS CENTER, an Oregon non-profit organization, Plaintiff-Appellant, v. BUREAU OF LAND MANAGEMENT, an agency of the United States Department of the Interior; Richard Drehobl, in his official capacity as the Field Manager of the Ashland Resource Area of the Bureau of Land Management's Medford District, Defendants-Appellees.

No. 03-35461.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 2004.

Filed October 28, 2004.

COPYRIGHT MATERIAL OMITTED

Brenna Bell, Klamath-Siskiyou Wildlands Center, Williams, OR, for the plaintiff-appellant.

Roger W. Nesbit, U.S. Department of the Interior, Office of the Regional Solicitor, Portland, OR; Thomas L. Sansonetti, Assistant Attorney General; Andrew Mergen, Ellen J. Durkee, Tamara N. Rountree (argued), U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. CV-02-03062-HO.

Before: REINHARDT, SILVERMAN, and CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge:

Appellant Klamath-Siskiyou Wildlands Center ("KS Wild"), an environmental organization, challenges two timber sales—the Indian Soda and the Conde Shell—proposed by the Bureau of Land Management ("BLM") in the South Fork Little Butte Creek ("SFLBC") watershed in the Cascade Mountains of southwest Oregon. Pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the BLM conducted environmental assessments ("EAs") to assess the potential environmental impacts posed by the Conde Shell and Indian Soda sales. KS Wild claims that the EAs are legally insufficient because (1) they fail to adequately evaluate and discuss the potential cumulative environmental impacts posed by the sales in combination with other major activities in the watershed, and (2) the environmental effects of the two sales, along with two other adjacent proposed sales, should all have been discussed in a single NEPA document.

The district court entered summary judgment in favor of the BLM. To make an informed decision about how or whether to proceed with the proposed projects and to comply with NEPA, an agency must identify their potential combined environmental impacts and make that information available to the public. We reverse the judgment of the district court because the analyses performed by the BLM do not sufficiently consider the cumulative impacts posed by the timber sales.

I. BACKGROUND

The SFLBC watershed is classified as a Tier 1 Key Watershed under the Northwest Forest Plan, a comprehensive plan adopted in 1994 for the management of all federal forest lands in Washington, western Oregon, and northern California. Tier 1 Watersheds are river basins that are deemed to contribute directly to the survival and restoration of at-risk salmonids. The SFLBC watershed contains designated critical habitat for two endangered species, the coho salmon and the northern spotted owl.

In 1998, the BLM began planning a project on the 373 square miles of the Little Butte Creek watershed aimed at improving forest health by restoring the forest habitat to a "pre-European condition," while also providing a sustainable supply of timber. For the South Fork Little Butte Creek watershed, the BLM adopted a single silvicultural prescription, titled "SFLBC Project Timber Sales (FY 2000-2003)." The plan to harvest SFLBC timber was originally conceived as a single project, but in the summer and fall of 1999, the BLM decided to divide the analysis for at first two, then four nominally separate (but immediately adjacent) timber sales that would be harvested over a four-year period. The reason for dividing the project is not entirely clear, but the record indicates that the BLM's primary motivation was the desire to proceed expediently with the project or projects.

The BLM decided to prepare a separate EA for each of the four projects: the Indian Soda, Conde Shell, Deer Lake, and Heppsie sales. The first analyses to be completed were for the Indian Soda and Conde Shell sales. In each EA, the BLM determined that the given project did not pose a risk of significant environmental impact and therefore issued a Finding of No Significant Impact, which allowed the sale to proceed. While KS Wild objects to the analyses performed for all four sales, it only specifically challenged the Indian Soda and Conde Shell projects, because those were the only two for which a final agency action (the BLM's issuance of a Record of Decision) had been taken at the time of the complaint.

On cross-motions for summary judgment, the district court entered judgment in favor of the BLM. While there was no immediate harvest activity on the Conde Shell project, harvesting began on the Indian Soda project, extending to fifteen of the sixteen individual harvest areas. KS Wild moved the district court to enjoin further harvest activities in both areas. The court issued the injunction pending the resolution of this appeal.

II. STANDARDS OF REVIEW

A "district court's determination on summary judgment that the BLM complied with NEPA is reviewed de novo." Kern v. Bureau of Land Mgmt., 284 F.3d 1062, 1069-70(9th Cir.2002). The agency's actions, findings, and conclusions will be set aside if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Ocean Advocates v. U.S. Army Corps of Eng'rs, 361 F.3d 1108, 1118 (9th Cir.2004) (quoting 5 U.S.C. § 706(2)(A)). Courts apply a "rule of reason" standard in reviewing the adequacy of a NEPA document. Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001). Through the NEPA process, federal agencies must "carefully consider[ ] detailed information concerning significant environmental impacts," Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989), but they are "not require[d] to do the impractical." Inland Empire Public Lands Council v. United States Forest Serv., 88 F.3d 754, 764 (9th Cir.1996). Alternatively phrased, the task is to ensure that the agency has taken a "hard look" at the potential environmental consequences of the proposed action. Churchill County, 276 F.3d at 1072.

The NEPA statute is accompanied by implementing regulations promulgated by the Council on Environmental Quality ("CEQ") and found at 40 C.F.R. §§ 1501.1-1508.28. Courts must "to the fullest extent possible" interpret these regulations consistently with the policies embodied in NEPA. Churchill County, 276 F.3d at 1072(quoting Lathan v. Brinegar, 506 F.2d 677, 687 (9th Cir.1974) (en banc)).

Although an agency's actions under NEPA are subject to careful judicial scrutiny, courts must also be mindful to defer to agency expertise, particularly with respect to scientific matters within the purview of the agency. See Anderson v. Evans, 371 F.3d 475, 489 (9th Cir.2004). As the Supreme Court stated in Citizens to Preserve Overton Park, Inc. v. Volpe, "the ultimate standard of review is a narrow one," and "[t]he court is not empowered to substitute its judgment for that of the agency." 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III. NATIONAL ENVIRONMENTAL POLICY ACT

NEPA "is our basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). It is a procedural statute that requires the Federal agencies to assess the environmental consequences of their actions before those actions are undertaken. For "major federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), the agency is required to prepare an environmental impact statement ("EIS"). An EIS is a thorough analysis of the potential environmental impacts that "provide[s] full and fair discussion of significant environmental impacts and ... inform[s] decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.

Where an agency is unsure whether an action is likely to have "significant" environmental effects, it may prepare an EA: a "concise public document" designed to"[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement...." 40 C.F.R. § 1508.9. If the EA concludes that the action will not have a significant effect on the environment, the agency may issue a Finding of No Significant Impact and may then proceed with the action. 40 C.F.R. § 1508.13. That is the route taken by the BLM for the timber sales at issue here.

IV. ADEQUACY OF THE ENVIRONMENTAL ASSESSMENTS

A. Cumulative Impacts

KS Wild contends that the EAs are legally inadequate because they fail to properly consider the cumulative impacts of the sales. A cumulative impact is defined in NEPA's implementing regulations as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7.

A proper consideration of the cumulative impacts of a project requires "`some quantified or detailed information;... [g]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.'" Ocean Advocates, 361 F.3d at 1128(quoting Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1379-80 (9th Cir.1998)). The analysis "must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects." Id. (internal quotations and citations omitted). The Indian Soda and Conde Shell EAs both fall short of this standard.

Cumulative impacts of multiple...