Oregon Natural Resources v. U.S. Bureau, 05-35245.

• Decision Date: 04 December 2006
• Docket Number: No. 05-35245.,05-35245.
• Citation: 470 F.3d 818
• Parties: OREGON NATURAL RESOURCES COUNCIL; Klamath Siskiyou Wildlands Center; Umpqua Watersheds, Inc.; Headwaters, Oregon non-profit organizations, Plaintiffs-Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT; Elaine Marquis Brong, State Director of the Bureau of Land Management for Washington and Oregon, Defendants-Appellees, and Herbert Lumber Company, Defendant-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

470 F.3d 818

OREGON NATURAL RESOURCES COUNCIL; Klamath Siskiyou Wildlands Center; Umpqua Watersheds, Inc.; Headwaters, Oregon non-profit organizations, Plaintiffs-Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT; Elaine Marquis Brong, State Director of the Bureau of Land Management for Washington and Oregon, Defendants-Appellees, and Herbert Lumber Company, Defendant-Intervenor.

No. 05-35245.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 28, 2006.

Filed December 4, 2006.

Ralph O. Bloemers, Cascade Resources Advocacy Group, Portland, OR, for the plaintiffs-appellants.

Michael Gray, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Federal defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-03-00478-HO.

Before: GOODWIN, TASHIMA, and GRABER, Circuit Judges.

GOODWIN, Circuit Judge:

Oregon Natural Resources Council Fund et al. (ONRC) appeals a summary judgment in favor of the Bureau of Land Management (BLM). We reverse and remand.

ONRC challenged the "Mr. Wilson" logging project in the Glendale Resource Area of the Medford BLM District in Oregon, on the ground that the project violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f. The specific violation was alleged to consist of conducting an insufficient Environmental Analysis. ONRC argues that the BLM did not sufficiently consider the cumulative impact of the Mr. Wilson logging project in conjunction with other past, present, and reasonably foreseeable projects on timber harvest levels and on the northern spotted owl's critical habitat. The district court concluded that because logging operations had been completed the cause was moot, and granted summary judgment.

I. Background

The BLM issued an Environmental Assessment (EA) for the Mr. Wilson logging project in the Glendale Resource Area of the Medford BLM District in July 2001. In October 2001, the BLM issued a Finding of No Significant Impact on the human environment and therefore did not prepare a more thorough Environmental Impact Statement.

ONRC commenced this action to halt the project in a timely manner but did not succeed in obtaining a preliminary injunction. ONRC contends that the BLM failed to comply with NEPA's environmental review requirements and seeks declaratory and injunctive relief. The parties cross-moved for summary judgment, and the district court issued an order granting summary judgment to the BLM on June 23, 2004. Meanwhile, logging proceeded.

On August 23, 2004, ONRC moved the district court for relief from the summary judgment, citing two subsequent decisions: Lands Council v. Powell, 379 F.3d 738 (9th Cir.2004), as amended 395 F.3d 1019 (2005), and Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 (9th Cir.2004) (KSWC).

The district court denied the requested relief, holding that a change in law does not trigger Federal Rule of Civil Procedure 60(b)(5), and that there were no extraordinary circumstances present to warrant invocation of Rule 60(b)(6). The district court did state that "[n]otwithstanding [its holding], the court would reconsider the June 23, 2004 order in light of subsequent Ninth Circuit precedent if the court of appeals were to find that procedure to be appropriate." Final judgment was entered on February 7, 2005.

ONRC filed without success a motion for injunction pending appeal. The district court stated that KSWC "raises serious questions regarding this court's holding that the Bureau of Land Management's (BLM) analysis of cumulative effects on northern spotted owls and late-successional habitat dependent species and the habitat is sufficiently rigorous to satisfy the requirements of the National Environmental Policy Act." The court then denied ONRC's motion, stating that "[a]lthough plaintiffs have raised a serious question for litigation on the merits, this relatively small project is nearing completion, with only commercial thinning operations remaining on lands allocated for timber production."

On appeal ONRC contends that the Mr. Wilson EA lacked a sufficiently detailed analysis of the cumulative effects of past, present, and reasonably foreseeable future timber harvests on late-successional habitat.

II. De Novo Review

We review NEPA compliance de novo. Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1069-70 (9th Cir.2002). Through the NEPA process, a federal agency must "take[ ] a `hard look' at the potential environmental consequences of the proposed action." KSWC, 387 F.3d at 993 (quoting Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001)). "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." Id. at 992 (internal quotation marks omitted).

Our inquiry into whether an agency's decision was arbitrary or capricious "must `be searching and careful,' but `the ultimate standard of review is a narrow one.'" Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

III. Mootness

The BLM argues that this action is moot because all of the timber harvesting has been completed and there remain no project activities that could cause a significant environmental impact. "[I]n deciding a mootness issue, `the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.'" Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir.1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir.1986)).

When evaluating the issue of mootness in NEPA cases, we have repeatedly emphasized that if the completion of the action challenged under NEPA is sufficient to render the case nonjusticiable, entities "could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine. Such a result is not acceptable."

Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir.2001) (quoting West v. Sec'y of the Dep't of Transp., 206 F.3d 920, 925 (9th Cir.2000)).

In its complaint ONRC sought declaratory and injunctive relief in addition to costs, fees, and "[s]uch other and further relief as this Court deems just and proper." The Mr. Wilson project is not finished, and the absence of a proper Environmental Assessment affected, or at least could have affected, not only the logging decision but also the post-logging mitigation decision. The absence of the appropriate "hard look" analysis thus has present consequences. Although the harvested trees cannot be restored, "[b]ecause harm to old growth species may yet be remedied by any number of mitigation strategies," this case is not moot. Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1066 (9th Cir.2002) (identifying possible relief beyond preventing logging including ordering the Forest Service to study the timber sale's impacts on species viability and to mitigate those impacts in the sale area and elsewhere, ordering the Forest Service to adjust future timber plans to compensate for this allegedly unlawful one, and more direct species population intervention such as monitoring population trends and developing artificial habitats for their recovery). Neighbors involved claims under both NEPA and the National Forest Management Act of 1976 (NFMA), and while the court determined the case was not moot because of relief available under NFMA, it did not conclude that the appellants' NEPA claim was moot for lack of available relief. Rather, the court held there was no NEPA violation in the first instance, because the agency had taken the required "hard look" at potential environmental impacts. Id. at 1071. Conversely, the BLM has not taken the requisite "hard look" in this case, a failure that, as discussed below, has present consequences. Our holding is also consistent with Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir.2006). In that case the logging company had a continuing right to cut trees that met certain tree mortality guidelines, while the three-year project term in this case has expired. However, the live controversy in Earth Island did not exist solely because of the prospective right to continue logging, but also because there were "a variety of measures that could provide some effective relief, including revising the tree mortality guidelines, monitoring of the California spotted owl, and obtaining more accurate population surveys" of certain bird species. Id. at 1157-58.

In the instant case, thinning and other husbandry functions were yet to be completed at the time the case was submitted, and an appropriate EA can yet yield effective post-harvest relief. In addition to hazardous fuel and slash pile management (together with related mitigation of past damage and prevention of future damage that could be accomplished by road closures), erosion prevention, and monitoring of the logging effects on northern spotted owl activity, the record in this case reveals BLM preparation for future sales in contiguous or neighboring habitat areas. All such concerns have to be considered with reference to habitat deterioration in the "hard look" required in a legally sufficient EA.

IV. How the EA falls short

The Mr. Wilson Environmental Assessment is inadequate for the reasons previously explained in KSWC. First, the BLM failed to disclose and consider quantified and detailed information regarding the cumulative impact of the Mr. Wilson logging project combined with past, present, and reasonably foreseeable logging projects. Second, the EA was tiered to other documents that did not contain the requisite...