Blue Mountains Biodiversity Project v. Blackwood, No. 98-35783

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: FLETCHER
• Citation: 161 F.3d 1208
• Decision Date: 02 December 1998
• Docket Number: No. 98-35783
• Parties: 29 Envtl. L. Rep. 20,424, 98 Cal. Daily Op. Serv. 8791, 98 Daily Journal D.A.R. 12,223 BLUE MOUNTAINS BIODIVERSITY PROJECT; Blue Mountain Native Forest Alliance; Society Advocating Natural Ecosystems; Cascadia Fire Ecology Education Project, Plaintiffs-Appellants, v. Jeff BLACKWOOD, in his capacity as Supervisor, Umatilla National Forest; United States Forest Service, Defendants-Appellees, Malheur Lumber Company; Ochoco Lumber Company; Prairie Wood Products; D.R. Johnson Lumber Co.; Malheur Timber Operators; Northwest Forest Resource Council, Intervenors- Defendants-Appellees.

Page 1208

161 F.3d 1208 29 Envtl. L. Rep. 20,424, 98 Cal. Daily Op.
Serv. 8791,
98 Daily Journal D.A.R. 12,223 BLUE MOUNTAINS BIODIVERSITY PROJECT; Blue Mountain Native
Forest Alliance; Society Advocating Natural
Ecosystems; Cascadia Fire Ecology
Education Project, Plaintiffs-Appellants,
v.
Jeff BLACKWOOD, in his capacity as Supervisor, Umatilla
National Forest; United States Forest Service,
Defendants-Appellees,
Malheur Lumber Company; Ochoco Lumber Company; Prairie
Wood Products; D.R. Johnson Lumber Co.; Malheur
Timber Operators; Northwest Forest
Resource Council, Intervenors-
Defendants-Appellees. No. 98-35783. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Nov. 3, 1998.
Decided Dec. 2, 1998.

Page 1209

Marc D. Fink, Boise, Idaho; Jack K. Sterne, Alaska, for plaintiffs-appellants.

Michael K. Martin, United States Department of Justice, Washington, DC, for defendants-appellees.

Scott W. Horngren, Portland, Oregon, for intervenors-defendants-appellees.

Appeal from the United States District Court for the District of Oregon Ann Aiken, District Judge, Presiding. D.C. No. CV-98-98-AA.

Before: FLETCHER and TASHIMA, Circuit Judges, and FITZGERALD, ^* District Judge.

Page 1210

FLETCHER, Circuit Judge:

We are called upon to determine whether the United States Forest Service ("Forest Service") could award a series of contracts for timber salvage sales in the Umatilla National Forest in eastern Oregon without preparing an Environmental Impact Statement ("EIS") for the largest project and without evaluating the cumulative effects of multiple sales proposed in an area burned by a large wildfire. The Blue Mountains Biodiversity Project, Blue Mountain Native Forest Alliance, Society Advocating Natural Ecosystems, and Cascadia Fire Ecology Education Project (collectively "BMBP") contend that the Forest Service's decision to proceed using an Environmental Assessment instead of a more comprehensive EIS violated the National Environmental Policy Act. The district court denied plaintiffs' motion for summary judgment and permanent injunction and granted the Forest Service's cross-motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand with instructions that the Forest Service prepare an EIS.

FACTUAL AND PROCEDURAL BACKGROUND

The Umatilla National Forest, east of Ukiah, Oregon, includes a portion of the Blue Mountain Range that extends from northeastern Oregon to southeastern Washington. Within the National Forest's borders lies the John Day Basin, the only major river basin in Oregon that contains no dams; it also contains the North Fork of the John Day River, a designated Wild and Scenic River and home to the largest spawning population of summer steelhead and wild spring chinook salmon in the entire Columbia River system.

In August 1996, three wildfires swept through the North Fork John Day watershed. The largest of these fires, the "Tower Fire," engulfed 51,000 acres in a 10-by 14-mile swath. It was the largest wildfire in the recorded history of the Umatilla National Forest. The fire killed all trees, shrubs, and ground cover in several thousand acres. The remaining acreage burned less intensely. In the end, however, the fire depleted stream shade along miles of streams, exposed soils to erosion, deposited sediment into waterways, killed fish, and destroyed fish and wildlife habitat. Over one half of the acres burned in the Tower Fire drain directly into the North Fork of the John Day River, and the remaining area drains into tributaries that eventually enter the river.

This litigation concerns the Forest Service's decision to conduct salvage logging on several thousand acres of burned forest land in the aftermath of the fire without preparing an EIS. Shortly after the fire, the Forest Service assessed the impacts of the fire on the watershed and developed a comprehensive fire recovery strategy. It identified five areas for timber salvage sales within the Tower Fire area. The Big Tower Salvage and Revegetation Project ("Big Tower" project), the largest project to emerge from the planning process, involved three separate timber sales encompassing 4,186 acres and revegetation efforts on an additional 4,500 acres.

The Forest Service estimated that the Big Tower sales would yield 30 million board feet and would remove all remaining trees within the high intensity burn area that were nine inches or greater at breast height. ¹ Sixty-five percent of the acreage to be logged--2,720 acres--contained soils with high erosion potential. Tractors would skid logs off 527 of these acres. The project would require eleven miles of new, temporary roads, and seven miles of reconstructed roads.

After completing an Environmental Assessment ("EA") for the project in July 1997, the Forest Service issued a "Finding of No Significant Impact" on September 8, 1997, and declined to prepare an EIS. The Forest Service also amended the Umatilla National Forest Plan because the Big Tower project did not comply with Forest Plan Standards and Guidelines in certain management areas.

The Big Tower EA identified only one of the four other timber sales proposed for the Tower Fire area and contained no discussion of the total quantities of timber or total acreage proposed for logging in the multiple

Page 1211

sales. ² The EA also failed to identify the locations of any of the 18 miles of road proposed for construction or reconstruction, or the locations of any proposed stream crossings.

BMBP sought to enjoin the Big Tower salvage sales, alleging that the Forest Service failed to comply with the procedural requirements of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C). Defendants-Intervenors are several logging companies including the company that was awarded the contracts for the salvage sales at issue.

BMBP and the Confederated Tribes of the Umatilla Indian Reservation appealed the Forest Service's decision on September 8, 1997. ³ In December 1997, an Administrative Appeals Officer upheld the Forest Service's decision and BMBP appealed in January 1998. On July 24, 1998, the district court granted summary judgment in favor of the Forest Service and intervenors and denied BMBP's motion for summary judgment and permanent injunction. A panel of this court denied BMBP's emergency motion for an injunction pending appeal, but granted its motion for expedited hearing.

Logging began on the sales encompassing the Big Tower project in August 1998. On November 5, 1998, after hearing oral argument in this case, we enjoined all future logging, road building and other ground disturbing activities within the Tower Fire area of the Umatilla National Forest. ⁴ Post argument, defendants and intervenors advise that more than 80 percent of the timber in the Big Tower project has been cut and removed. Logging on one of the other sale areas, designed to remove hazard trees along the roads, has also begun. No logging has begun on the other projects identified in the Tower Fire area.

STANDARD OF REVIEW

We review de novo the grant and denial of a district court's order granting and denying summary judgment. Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998). We must determine whether the Forest Service's decision was "based on a consideration of the relevant factors," or whether its actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (quoting the Administrative Procedures Act, 5 U.S.C. § 706(2)(A)). In short, we must ensure that the agency has taken a "hard look" at the environmental consequences of its proposed action. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997).

Under this deferential standard, we must defer to an agency's decision that is "fully informed and well-considered." Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988). However, we need not forgive a "clear error of judgment." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989). "An agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to supply a convincing statement of reasons why potential effects are insignificant." Save the Yaak, 840 F.2d at 717.

ANALYSIS

1. NEPA Requirements for an Environmental Impact Statement

The National Environmental Policy Act ("NEPA") requires a federal agency such as

Page 1212

the Forest Service to prepare a detailed EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA "ensures that the agency ... will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger [public] audience." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989).

A threshold question in a NEPA case is whether a proposed project will "significantly affect" the environment, thereby triggering the requirement for an EIS. 42 U.S.C. § 4332(2)(C). As a preliminary step, an agency may prepare an EA to decide whether the environmental impact of a proposed action is significant enough to warrant preparation of an EIS. 40 C.F.R. § 1508.9. An EA is a "concise public document that briefly provide[s] sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact." Id.

If an agency decides not to prepare an EIS, it must supply a "convincing statement of reasons" to explain why a project's impacts are insignificant. Save the Yaak, 840 F.2d at 717. "The statement of reasons is crucial to determining whether the agency took a "hard look" at the potential environmental impact of a project." Id. BMBP argues that the Forest Service did not take the requisite "hard look" at the environmental impacts of the...