Alpine Lakes Protection Soc. v. US Forest Serv., C93-600R.

• Decision Date: 18 October 1993
• Docket Number: No. C93-600R.,C93-600R.
• Citation: 838 F. Supp. 478
• Parties: The ALPINE LAKES PROTECTION SOCIETY, a non-profit corporation, Plaintiff, v. U.S. FOREST SERVICE, an agency of the United States and Plum Creek Timber Company, a limited partnership, Defendants.
• Court: U.S. District Court — Western District of Washington

838 F. Supp. 478

The ALPINE LAKES PROTECTION SOCIETY, a non-profit corporation, Plaintiff, v. U.S. FOREST SERVICE, an agency of the United States and Plum Creek Timber Company, a limited partnership, Defendants.

No. C93-600R.

United States District Court, W.D. Washington, at Seattle.

October 18, 1993.

Victor M. Sher, Sierra Club Legal Defense Fund, Seattle, WA, for plaintiff.

Robert Maxwell Taylor, U.S. Attorney's Office and John William Hempelmann, Cairncross & Hempelmann, P.S., Seattle, WA, for defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROTHSTEIN, Chief Judge.

THIS MATTER comes before the court on plaintiff's motion for summary judgment and for permanent injunction,¹ and on defendants' motions for summary judgment. Having reviewed the motions together with all documents filed in support and in opposition, and having heard oral argument, the court finds and rules as follows:

I. BACKGROUND

On July 7, 1992, the United States Forest Service ("Forest Service") determined to grant a "Private Road Special Use Permit" to Plum Creek Timber Company ("Plum Creek") for a temporary access road across National Forest lands. When issued, the permit will allow Plum Creek to build, maintain, and use a 0.23 mile road for access to its property for a 5-year period to conduct timber management activities related to its "Big Boulder" project. This access request is one of seven submitted by Plum Creek for access roads in or near the Alpine Lakes area, as follows:

                Project Name     Length of Road     Application Date
                Big Boulder         1200 feet             1/23/90
                Big Bend            2480 feet             2/26/90
                Bell Ridge          2500 feet            11/14/90
                Sasse               3511 feet             2/26/90
                Hex                  150 feet             2/26/90
                Peaches Ridge       3909 feet             2/21/90
                Taneum Ridge        5000 feet             2/21/90
                

Administrative Record ("AR") 49, 186-87. The Forest Service made its decision to issue a permit for the Big Boulder access road after concluding that neither a formal environmental assessment ("EA") nor an environmental impact statement ("EIS") was required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., because the access road qualified for a categorical exclusion ("CE") under "class 2" of its internal rules.² AR 229-30, 441-43. An administrative appeal filed by the Alpine Lakes Protection Society ("ALPS") was denied and a second level of discretionary review declined. AR 235-46, 357-61. ALPS subsequently filed this action seeking to compel the Forest Service to consider the connected and cumulative environmental effects associated with the Big Boulder project and the six additional projects for which access road permit applications are pending.³ ALPS now moves for summary judgment on the ground that, in deciding to grant a permit for the Big Boulder access road, the Forest Service improperly limited its environmental consideration to the 0.23 mile of road across federal land alone. Defendants Plum Creek and U.S. Forest Service move for summary judgment on the ground that, because it was not arbitrary and capricious, the Big Boulder decision must be affirmed.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate if it appears, after viewing the evidence in the light most favorable to the nonmoving party, that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Asso., 809 F.2d 626, 630-31 (9th Cir.1987). A genuine issue of material fact exists where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party". Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Summary judgment is not appropriate if "a result other than that proposed by the moving party is possible under the facts and applicable law." Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir.1981). The court concludes that there is no such dispute here.

B. NEPA — Standard of Review

Review of an agency's determination not to prepare an initial EIS is governed by the arbitrary and capricious standard. Greenpeace Action v. Franklin, 982 F.2d 1342, 1350 (9th Cir.1992) (citing Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). The arbitrary and capricious standard requires a court to ensure that an agency has taken the requisite `hard look' at the environmental consequences of its proposed action and to carefully review the record to ascertain whether the agency decision is "founded on a reasoned evaluation `of the relevant factors'". Marsh, 490 U.S. at 378, 109 S.Ct. at 1861 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)); Greenpeace, 982 F.2d at 1350. Once a court is satisfied that an agency's exercise of its discretion is truly informed, it must defer to the agency's reliance on the reasonable opinions of its own qualified experts even though the court might find the contrary views of different experts more persuasive. Marsh, 490 U.S. at 377, 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)); Greenpeace, 982 F.2d at 1350.

The focal point for judicial review is the administrative record already in existence, not the new record made in the reviewing court. Seattle Audubon Society v. Moseley, 798 F.Supp. 1473, 1477 (W.D.Wash. 1992) (citing Asarco, Inc. v. EPA, 616 F.2d 1153, 1159 (9th Cir.1980)), affirmed, 998 F.2d 699 (9th Cir.1993). A court may, however, consider evidence outside the administrative record for certain limited purposes, such as to explain the agency's action or to determine whether its course of inquiry was insufficient or inadequate. Moseley, 798 F.Supp. at 1477 (citing Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, 490 U.S. 1035, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989)); Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). Plum Creek's motion to strike the declarations submitted by ALPS in support of its motion for summary judgment is therefore denied.

C. Compliance with NEPA Requirements

NEPA requires federal agencies to prepare an EIS for all "major federal actions significantly affecting the quality of the human environment". 42 U.S.C. § 4332(2)(C). While it is true that administrative agencies are given considerable discretion in determining the scope of an EIS, an agency is required to consider connected or cumulative actions in a single EIS to avoid dividing a project into multiple actions, each of which individually has an insignificant environmental impact, but which collectively have a substantial impact. Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985) (citing Kleppe, 427 U.S. at 409-10, 96 S.Ct. at 2730). 40 C.F.R. § 1508.25 discusses the required scope of an EIS and defines connected and cumulative actions, providing in pertinent part:

To determine the scope of environmental impact statements, agencies shall consider 3 types of actions, 3 types of alternatives, and 3 types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) Connected actions, which means that they are closely related and therefore should be discussed in the same impact statement. Actions are connected if they:

(i) Automatically trigger other actions which may require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.

(3) Similar Actions, which when viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.

(b) Alternatives, which include

(1) No action alternative.

(2) Other reasonable courses of actions.

(3) Mitigation measures (not in the proposed action).

(c) Impacts, which may be: (1) Direct; (2) indirect; (3) cumulative.

In its use of the word "shall", 40 C.F.R. § 1508.25 makes mandatory the consideration of connected, cumulative, and similar actions by an agency when determining the scope of an EIS. Thus, the question whether the Forest Service erred in failing to consider the impact of the other six projects for which permit applications are pending or the logging activity associated with the Big Boulder access road turns on whether those projects are connected, cumulative, or similar actions.

1. Connected Actions

ALPS first contends that, because Plum Creek's timber management activities constitute a connected action, the Forest Service abused its discretion in failing to consider those activities in determining that no EIS was required for the Big Boulder project and in concluding that the Big Boulder logging road qualified for a categorical exclusion.

The Ninth Circuit has held that where access road construction and contemplated timber harvesting are "inextricably intertwined" such that the timber harvesting could not proceed without the road and the road would not be built but for the contemplated harvesting, the...