Cascadia Wildlands v. Bureau of Indian Affairs

• Decision Date: 11 September 2015
• Docket Number: No. 14–35553.,14–35553.
• Citation: 801 F.3d 1105
• Parties: CASCADIA WILDLANDS, an Oregon non-profit corporation; Oregon Wild, an Oregon non-profit corporation; Umpqua Watersheds, Inc., an Oregon non-profit corporation, Plaintiffs–Appellants, v. BUREAU OF INDIAN AFFAIRS, an agency of the United States Department of the Interior, Defendant–Appellee, and Coquille Indian Tribe, a federally recognized Indian tribe, Intervenor–Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

801 F.3d 1105

CASCADIA WILDLANDS, an Oregon non-profit corporation; Oregon Wild, an Oregon non-profit corporation; Umpqua Watersheds, Inc., an Oregon non-profit corporation, Plaintiffs–Appellants

v.BUREAU OF INDIAN AFFAIRS, an agency of the United States Department of the Interior, Defendant–AppelleeandCoquille Indian Tribe, a federally recognized Indian tribe, Intervenor–Defendant–Appellee.

No. 14–35553.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 2015.

Filed Sept. 11, 2015.

Nicholas S. Cady (argued), Cascadia Wildlands, Eugene OR; Sean T. Malone ; Daniel R. Kruse, Eugene, OR, for Plaintiffs–Appellants.

Sam Hirsch, Acting Assistant Attorney General, Stuart Gillespie, Brian C. Toth and Ellen J. Durkee (argued), Environmental & Natural Resources Division, Department of Justice, Washington, D.C.; Mary Anne Kenworthy, Office of the Regional Solicitor, Department of the Interior, Portland, OR, for Defendant–Appellee.

Edmund C. Goodman (argued), Hobbs, Straus, Dean & Walker, LLP, Portland, OR; Brett V. Kenney, North Bend, OR, for Intervenor–Defendant–Appellee.

Appeal from the United States District Court for the District of Oregon, Michael J. McShane, District Judge, Presiding. D.C. No. 6:13–cv–01559–TC.

Before: RAYMOND C. FISHER, CARLOS T. BEA and MARY H. MURGUIA, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Cascadia Wildlands, Oregon Wild and Umpqua Watersheds (collectively, Cascadia) challenge the Bureau of Indian Affairs' (BIA) approval of the Middle Forks Kokwel timber sale (the Kokwel Project), a plan by the Coquille Indian Tribe (the Tribe) to harvest 268 acres of timber in the Coquille Forest in southwest Oregon. Cascadia argues the BIA violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., because it did not adequately consider the cumulative environmental impact of the Kokwel Project in light of a previously approved harvest, the Alder/Rasler Project, on adjacent and overlapping land. Cascadia also argues the Kokwel Project violates the Coquille Restoration Act (CRA), 25 U.S.C. § 715 et seq., because the project is inconsistent with the U.S. Fish and Wildlife Service's (FWS) Recovery Plan for the northern spotted owl.

The district court granted summary judgment to the BIA and the Tribe on both claims.¹ We have jurisdiction under 28 U.S.C. § 1291, and we affirm. First, the BIA and the Tribe did not violate NEPA by aggregating the Alder/Rasler Project, which had been approved, but not yet completed, as part of the environmental baseline against which the incremental impact of the Kokwel Project was considered. Second, the CRA does not require compliance with the Recovery Plan for the northern spotted owl.

BACKGROUND

The Coquille Forest comprises 5,410 acres of land along the southwest Oregon coast that was restored to the Coquille Indian Tribe in 1996 by an amendment to the Coquille Restoration Act. See 25 U.S.C. § 715c. Under the CRA, the forest is held in trust by the federal government and managed for the benefit of the Tribe. See id. § 715c(b), (d)(5).

In 2011 and 2013, the BIA approved two different proposals by the Tribe to harvest timber in the Coquille Forest. In 2011, the BIA approved the Alder/Rasler Project, which called for 270 acres of regeneration harvest, 52 acres of density management and 56 acres of commercial thinning between 2011 and 2016.² The purposes of the Alder/Rasler Project were to generate money for the Tribe and manage forest growth. The Alder/Rasler Project also called for the construction of 3.21 miles of roads in the forest. The BIA and the Tribe conducted an Environmental Assessment (EA), which estimated the project would create between 44 and 220 jobs and over $10.5 million in revenue through the sale of 22.44 million board feet of timber.

The EA also found the Alder/Rasler Project likely would adversely affect the northern spotted owl, an endangered species living in the Coquille Forest, by removing 270 acres of suitable habitat. The EA noted, however, that there were no occupied owl habitats within the project area, and no owl nest sites within 1.5 miles of the project area. Based on the EA, the BIA issued a Finding of No Significant Impact (FONSI) and approved the project in February 2011, without conducting an Environmental Impact Statement (EIS).

In 2013, the BIA approved a second project—the Kokwel Project—to conduct an additional 268 acres of regeneration harvest, 221 acres of commercial thinning and 42 acres of density management in the Coquille Forest over 10 years. The Kokwel Project was planned on land adjacent to, and overlapping with, the Alder/Rasler Project. The primary purpose of the Kokwel Project was to generate money for the Tribe. The BIA and the Tribe conducted an EA, which estimated the Kokwel Project would create 242 direct jobs, 532 indirect jobs and over $8 million in revenue through the sale of 13.9 million board feet of timber.

FWS performed a Biological Assessment and concluded the Kokwel Project likely would adversely affect the northern spotted owl, and would “take” up to 14 northern spotted owls at four sites.³ Therefore, FWS concluded the Kokwel Project was inconsistent with its Recovery Plan for the northern spotted owl.⁴ The Recovery Plan calls for the conservation of spotted owl habitat “to provide additional demographic support to the spotted owl population,” and directs land managers to work with FWS to “maintain and restore” particularly “high-quality spotted owl habitat stands.” FWS also found, however, that “[b]ecause there will be less than one percent of [nesting, roosting and foresting habitat] loss in the 43,000 acre ... analysis area, ... this habitat loss will not significantly impact the provincial habitat conditions that provide for spotted owls,” or “jeopardize the continued existence of the spotted owl.”

In the EA, the BIA and the Tribe agreed with the FWS that the Kokwel Project was likely to adversely affect the northern spotted owl by removing 268 acres of suitable habitat. The EA then analyzed the cumulative impact of the Kokwel Project by comparing it against an environmental baseline, or “No Action Alternative.” The No Action Alternative described the “existing condition and the continuing trends,” assuming “[o]ngoing activities would continue to occur on existing projects,” including “other projects covered by earlier decision records.” The EA explained that it would aggregate other projects into the No Action Alternative, rather than individually discuss them:

The following descriptions of the No Action Alternative and the Proposed Action assume the combined relevant effects of all past actions. It is not necessary to individually identify or catalog these past actions as the description of the affected environment incorporates all those actions. For the cumulative effects analysis the description of the potential resulting impacts is the cumulative effect of all past, present and reasonably foreseeable actions. Reasonably foreseeable future actions are assumed to be the same for the No Action as well as the Proposed Action. Stands ... are expected to be selectively harvested approximately every 60 to 80 years.... Current timber management on the surrounding private land is more intensive and occurs on a larger scale at rotations as short as 30 to 40 years.... Table 8 lists treatments proposed for the foreseeable future on [the Tribe's] lands in the analysis area that will be considered in the following resource-specific cumulative impact discussions. Other incidental use of the [Tribe's] lands such as recreational use is expected to continue at rates similar to those of the past ten years.

Table 8 listed only one treatment proposed for the foreseeable future: the Alder/Rasler Project. The EA's resource-specific cumulative impact discussions did not individually analyze the impact of any specific past, present or reasonably foreseeable action. With respect to the northern spotted owl, the EA said the Middle Fork Coquille River watershed, which contains the Coquille Forest, has approximately 42,587 acres of spotted-owl-habitat-capable habitat, and approximately 28,108 acres of current nesting, roosting and foraging habitat. The EA presented a table, called “Impacts of the proposed action on [northern spotted owl] nest patches, core areas, and home ranges.” The table compared “current” acres of northern spotted owl habitat, elsewhere listed as “pre-harvest” acres, with “post” acres. The table showed the Kokwel Project would not reduce any northern spotted owl habitat within a “nest patch” (300 meters) or “core area” (half mile), and would reduce habitat within the “home ranges” (1.3 miles) of four historic owl sites from 2,985 to 2,718 acres. Thus, the EA concluded the Kokwel Project “would reduce the amount of [nesting, roosting and foraging] habitat within [northern spotted owl] home ranges by a cumulative of approximately seven percent.' ”

Based on these data, the EA concluded the “cumulative effects” from the Kokwel Project and other “foreseeable projects” “would not appreciably diminish spotted owl suitable habitat.” It explained, “[m]ost of the owl core areas occur on [Bureau of Land Management] lands within the watershed; these areas are not expected to change substantially over time.” Furthermore, though the project would have an incremental impact of reducing habitat by seven percent, the EA also found, “[o]verall, the habitat would benefit from opening of the canopy, encouraging development of a multi-layered canopy and encouraging tree and understory growth.”

Relying on the EA, the BIA in February 2013 issued a FONSI and approved the project, without conducting an EIS. Cascadia challenged the BIA's decision in the district court, and the court granted summary judgment to the BIA and the Tribe. Cascadia appeals.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. See Mont. Wilderness Ass'n v. Connell, 725 F.3d 988, 994 (9th Cir.2013). We...