Foundation for North American Wild Sheep v. U.S. Dept. of Agriculture, 81-5044

Citation681 F.2d 1172
Decision Date22 July 1982
Docket NumberNo. 81-5044,81-5044
Parties, 74 A.L.R.Fed. 685, 12 Envtl. L. Rep. 20,968 FOUNDATION FOR NORTH AMERICAN WILD SHEEP, a corporation; Society For the Conservation of Bighorn Sheep, a corporation; California Wildlife Federation, a corporation; Safari Club International-Los Angeles Chapter, Inc., a corporation; Southern Council of Conservation Clubs, Inc., a corporation; Loren L. Lutz, an individual; Michael Valencia, an individual, Plaintiffs and Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; William T. Dresser, an individual; Curtis Tungsten, Inc., a corporation; Ronald L. Curtis, an individual, Defendants and Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Patrick J. Marley, Dana M. Cole, Los Angeles, Cal., for plaintiffs and appellants.

Edward J. Shawaker, Washington, D. C., argued, for defendants and appellees; Howard Gest, Los Angeles, Cal., Thomas L. Riesenberg, Attys., Washington, D. C., on brief.

Appeal from the United States District Court for the Central District of California.

Before ELY and CANBY, Circuit Judges, and EAST, * District Judge.

ELY, Circuit Judge:

Appellant Foundation for North American Wild Sheep 1 brought this action, premised on National Environmental Policy Act (NEPA) § 102 (codified at 42 U.S.C. § 4332), challenging appellee United States Forest Service's 2 decision not to prepare an Environmental Impact Statement (EIS) prior to granting a special use permit to Curtis Tungsten, Inc. (Curtis) allowing the reconstruction and use of Road 2N06. The District Court granted the Service's 3 motion for summary judgment, holding, inter alia, that the service had taken a "hard look" at the problem and reasonably concluded that no EIS was required. We have jurisdiction pursuant to 28 U.S.C. § 1291. 4 Because we conclude that the Service's decision not to prepare an EIS was unreasonable, we reverse and remand for further administrative proceedings.

I. FACTUAL BACKGROUND

Curtis owns and operates a tungsten mine located in the San Gabriel Mountains in the Angeles National Forest. Access to this mining operation may be had only by way of either of two roads: Road 2N06, also known as the Coldwater Canyon Truck Trail, and Road 2N09. Both roads pass through federally controlled forest land in the Angeles National Forest.

Originally constructed in 1933 by miners who used the road to haul gold ore from the San Gabriel Mountains, Road 2N06 traverses the upper reaches of Cattle and Coldwater Canyons. In 1938, heavy flooding occurred in the area, destroying the mine from which the gold ore had been extracted, and curtailing mining operations in the area. From 1938 until 1969, Road 2N06 was used regularly by private landowners, 5 the Forest Service, and the general public. In 1969, however, heavy flooding once again occurred, causing extensive damage to Road 2N06 and rendering it impassable. The road remained closed until 1980 when Curtis repaired it sufficiently to permit vehicular traffic.

Road 2N09 was constructed on the floor of the Canyon and contains numerous stream crossings. Consequently, it is subject to frequent and severe flooding, especially during the rainy winter months. From 1969 until the reconstruction of Road 2N06 in 1980, Road 2N09 provided the sole means of access to the Curtis mining claim.

On September 27, 1978, Curtis applied for a special use permit to reopen and use Road 2N06. 6 According to Curtis, Road 2N09 crosses more than twenty streams and is therefore frequently impassable due to flooding. Curtis further stated that the "down time" 7 caused by this flooding precluded the economical operation of his tungsten mine. 8 Road 2N06, according to Curtis, crosses no streams and therefore provides a more reliable means of access to his mining claim. 9 Accordingly, Curtis proposed to clear Road 2N06 of vegetation, widen it to twelve feet where necessary, and repair washed-out areas. This proposal sparked the controversy which resulted in the present appeal.

Upon hearing of the proposal to reopen Road 2N06, numerous environmentalists 10 responded with vigorous protests. Road 2N06 passes directly through the area occupied by one of the few remaining herds of Desert Bighorn Sheep (Ovis Canadensis Nelsoni ). These sheep, indigenous to the mountains of the Western United States, are purportedly extremely sensitive to environmental change. In the late nineteenth century, the sheep population was estimated to be approximately 1,500,000. Current estimates indicate that less than 40,000 remain in the mountainous regions of the United States. Because of the steadily diminishing Bighorn population, California law has long treated the sheep as a "protected" species of wildlife and prohibited all hunting for sport of the animal. Under federal law, the Bighorn is classified as a "sensitive" species entitled to special management protection.

The population of the herd directly at issue here is estimated at between 400 and 700 animals. This herd is unique in that it is one of the very few herds of Bighorn currently experiencing an increase in population. 11 The Foundation contends that reopening Road 2N06 would reverse this trend and result in the eventual destruction of this herd. The Foundation premises this contention on the critical nature of the areas through which Road 2N06 passes to the continued viability of the Bighorn herd.

Road 2N06 passes directly through the area used by the Bighorn herd for the "lambing" and rearing of its young. The Bighorn requires a unique ecosystem for these functions and any disturbance of that ecosystem may be potentially catastrophic to the survival of the herd. Road 2N06 also passes near a "mineral lick" used by the Bighorn herd. The exact composition and function of this "lick" is not precisely known but it is believed that the "lick" provides both a nutrient, probably sodium, necessary for Bighorn survival and a forum for intraspecies interaction necessary for the well-being and productivity of the herd. The reopening of Road 2N06 also presents the possibility of habitat encroachment of a more general nature. According to the Foundation, 12 the Bighorn sheep are peculiarly subject to stress-related diseases resulting from interaction with other species. 13

In response to these and other concerns, 14 the Service drafted an Environmental Assessment (EA). 15 The EA considered four alternative courses of action. Alternative A provided for the unlimited, year-round use of both Road 2N06 and Road 2N09. Alternative B provided for the use of Road 2N06 for nine months and for the closure of Road 2N06 during the three-month period during which the sheep utilize the area for the "lambing" and rearing of their young. 16 Alternative B further provided for the use of Road 2N09 during the time Road 2N06 was closed. Alternative C provided for the year-round use of Road 2N06 and prohibited use of Road 2N09. Alternative D was the "no project" alternative and prohibited the reopening of Road 2N06. Under Alternative D, access to the Curtis mining claim was to be had exclusively by way of Road 2N09. 17 The Service evaluated the alternatives under various criteria, 18 and concluded that Alternative B should be implemented. The Service further concluded that, because Alternative B adequately mitigated the potential harm to the sheep, 19 the action would have no significant effect on the quality of the human environment and therefore no EIS was required.

After protesting this decision, 20 the Foundation instituted suit in the District Court, seeking preliminary and permanent injunctive relief barring the reopening of Road 2N06 pending the preparation of an EIS. The District Court, after hearing argument from both parties, 21 refused to issue the requested preliminary injunction. Subsequently, the Service moved for summary judgment. The District Court granted the motion, 22 holding, inter alia, that the Service had reasonably concluded that no EIS was required. 23 This appeal ensued.

II. ANALYSIS

Before proceeding directly to the merits of the present controversy, we note the exceptionally broad scope of NEPA. See, e.g., Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Comm'n, 449 F.2d 1109, 1122 (D.C.Cir.1971). By its terms, NEPA mandates the preparation of an EIS for all "major federal actions significantly affecting the quality of the human environment ...." NEPA § 102(2)(c) (42 U.S.C. § 4332(2)(c) ). See also Kleppe v. Sierra Club, 427 U.S. 390, 399, 96 S.Ct. 2718, 2725, 49 L.Ed.2d 576 (1976). "The statutory phrase 'actions significantly affecting the quality of the environment' is intentionally broad, reflecting the Act's attempt to promote an across-the-board adjustment in federal agency decision making so as to make the quality of the environment a concern of every federal agency." Scientists' Institute for Public Information, Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1088 (D.C.Cir.1973). NEPA represents a firm Congressional mandate that environmental factors be considered on an equal basis with other, more traditional, concerns. Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Comm'n, 449 F.2d 1109, 1122 (D.C.Cir.1971).

Our first step in resolving the issues presented by this appeal is a determination of the appropriate standard for reviewing the Service's decision that no EIS was required prior to the issuance of a permit to reopen Road 2N06. It is firmly established in this Circuit that an agency's determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable. 24 Portela v. Pierce, 650 F.2d 210, 213 (9th Cir. 1981); City & County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975). Our review of the administrative record in the present case leads us ineluctably to...

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