Idaho Sporting Congress v. Thomas, No. 97-35339

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtFLETCHER
Citation137 F.3d 1146
Docket NumberNo. 97-35339
Decision Date13 May 1998
Parties, 28 Envtl. L. Rep. 21,044, 98 Cal. Daily Op. Serv. 1524, 98 Daily Journal D.A.R. 2160 IDAHO SPORTING CONGRESS, and American Wildlands, Plaintiffs-Appellants, v. Jack Ward THOMAS and United States Forest Service, Defendants-Appellees, and Intermountain Forest Industry Association and Stoddard Lumber Company, Defendants-Intervenors-Appellees.

Page 1146

137 F.3d 1146
46 ERC 1465, 28 Envtl. L. Rep. 21,044,
98 Cal. Daily Op. Serv. 1524,
98 Daily Journal D.A.R. 2160
IDAHO SPORTING CONGRESS, and American Wildlands, Plaintiffs-Appellants,
v.
Jack Ward THOMAS and United States Forest Service,
Defendants-Appellees,
and
Intermountain Forest Industry Association and Stoddard
Lumber Company, Defendants-Intervenors-Appellees.
No. 97-35339.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 5, 1997.
Decided March 4, 1998.
As Amended on Denial of Rehearing May 13, 1998.

Page 1148

Marc Fink, Sisters, Oregon, for plaintiffs-appellants.

Nicholas Woychick, Boise, Idaho, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-96-0371-S-BLW.

Before: FLETCHER and O'SCANNLAIN, Circuit Judges, and SCHWARZER, * District Judge.

FLETCHER, Circuit Judge:

The Idaho Sporting Congress ("ISC") and American Wildlands challenge a decision by the United States Forest Service ("Forest Service") to sell timber in the Miners Creek and West Camas Creek watersheds without producing an Environmental Impact Statement ("EIS") and without addressing the requirements of the Idaho water quality antidegradation statute. Relying on 1985 and 1990 water quality reports, the Forest Service prepared an Environmental Assessment ("EA") in lieu of an EIS. ISC contends that the Forest Service's actions violate the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), and the Clean Water Act ("CWA"). The district court denied ISC's motion for summary judgment and granted the Forest Service's cross-motion for summary judgment. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and instruct the Forest Service to prepare an EIS.

FACTUAL BACKGROUND

This litigation concerns the proposed sale of timber by the Forest Service from the Miners Creek and West Camas Creek drainages in the Targhee National Forest in southeastern Idaho. The proposed Miners Creek timber sale consists of 3.1 million board feet of timber from 970 acres in the Miners Creek and West Camas Creek subwatersheds. The two streams within the proposed sale area, Miners Creek and West Camas Creek, are inhabited by brook trout, a management indicator species for the Targhee National Forest.

In evaluating the environmental effects of the proposed timber sale, the Forest Service did not prepare an Environmental Impact Statement ("EIS") preparing instead a less

Page 1149

detailed Environmental Assessment ("EA"). On June 30, 1993, the Forest Supervisor signed a decision notice and Finding of No Significant Impact for the proposed sale, determining that the sale would not significantly affect the quality of the human environment. ISC appealed this decision to the Regional Forester, who thereafter affirmed the Forest Supervisor's decision on April 29, 1994.

In July of 1996, the Forest Service proposed the Camas Creek timber sale of 7.2 million board feet within the Camas Creek watershed. The Forest Service again chose not to prepare an EIS for this sale. As the Camas Creek sale also involves logging timber within the West Camas Creek subwatershed, it potentially impacts the Miners Creek sale. Though the EA for the West Camas Creek Timber sale states that it takes into account all past, present, and future projects within the watershed, the Forest Service chose not to supplement the Miners Creek EA to reflect the cumulative impacts of the West Camas Creek logging.

STANDARD OF REVIEW

We review de novo the grant and denial of summary judgment. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). We must determine whether the Forest Service's actions were "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 1861, 104 L.Ed.2d 377 (1989) (applying arbitrary and capricious standard to the adequacy of an EIS under the NEPA); Lowe, 109 F.3d at 526 (applying arbitrary and capricious standard to NFMA and NEPA actions); Texas Mun. Power Agency v. Administrator of United States EPA, 836 F.2d 1482, 1486 n. 18 (5th Cir.1988) (applying arbitrary and capricious standard to agency actions under the CWA).

In determining whether the Forest Service's decision was arbitrary and capricious, we "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh, 490 U.S. at 378, 109 S.Ct. at 1861. Particularly with respect to the adequacy of an EIS, we apply a 'rule of reason' that requires an agency to take a 'hard look' to determine if the EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." Lowe, 109 F.3d at 526. However, this "reasonableness" review does not materially differ from an "arbitrary and capricious" review. Marsh, 490 U.S. at 377 n. 23, 109 S.Ct. at 1861 n. 23 (noting that "difference between the 'arbitrary and capricious' standard and the 'reasonableness' standard is not of great pragmatic consequence").

ANALYSIS

I. EIS REQUIREMENT UNDER NEPA

ISC claims that the Forest Service must complete an EIS because there are substantial questions about whether the Miners Creek timber sale will affect water quality and fisheries, and thereby the human environment. NEPA imposes a procedural requirement that an agency must contemplate the environmental impacts of its actions. Inland Empire Pub. Lands v. United States Forest Serv., 88 F.3d 754, 758 (9th Cir.1996) (finding that NEPA is concerned with the process of disclosure, not any particular result). 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); Inland Empire, 88 F.3d at 758. Therefore, NEPA requires the Forest Service to include an EIS "in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). We have held that an EIS must be prepared if "substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor." Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir.1992) (citation omitted);

Page 1150

Sierra Club v. United States Forest Serv., 843 F.2d 1190, 1193 (9th Cir.1988). To trigger this requirement a "plaintiff need not show that significant effects will in fact occur," raising "substantial questions whether a project may have a significant effect" is sufficient. Greenpeace, 14 F.3d at 1332 (emphasis added). ISC asserts that the Forest Service failed to meet NEPA's requirements with respect to water quality, fisheries, and cumulative impact analysis.

A. WATER QUALITY

ISC claims that an EIS is necessary because there are substantial questions as to whether the timber sales will have a significant effect on the water quality of Miners Creek and West Camas Creek. Specifically, ISC argues that the 1990 report failed to conduct standard factual and scientific site specific analysis, and failed to provide the analytical data necessary for any public challenge to the proposed sale. Rather, the 1990 report consists of the expert opinion of Forest Service hydrologist Mark Moultin based on the natural topography of sale area.

Seeking to cure this defect, the district court noted that Moultin, who prepared the 1990 report, had earlier conducted the requisite monitoring and sampling in conjunction with a 1985 logging of the West Camas Creek watershed, and found that Moultin's expertise combined with his 1985 research adequately supported the 1990 study. Similarly, the Forest Service relies on the 1985 report to show that its past management practices have not degraded water quality. Agreeing with the Forest Service and finding that the 1985 report provided sufficient technical support to the 1990 report, the district court concluded that the 1990 report was a "hard look" at water quality issues. We disagree.

First, we find that the 1990 report alone does not satisfy NEPA's reporting and notice requirements because it fails to provide the public with a basis for evaluating the impact of the proposed sale. Since the 1990 report relies solely on Forest Service hydrologist Mark Moultin's expert opinion, a successful challenge to the report would entail challenging Moultin's expertise and opinions, yet, this is the type of challenge we have found impermissible under arbitrary and capricious review. Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir.1992) (finding that an agency is entitled to rely on its own scientific opinion of data). As a result, allowing the Forest Service to rely on expert opinion without hard data either vitiates a plaintiff's ability to challenge an agency action or results in the courts second guessing an agency's scientific conclusions. As both of these results are unacceptable, we conclude that NEPA requires that the public receive the underlying environmental data from which a Forest Service expert derived her...

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