Kern v. U.S. Bureau of Land Management

• Decision Date: 22 March 2002
• Docket Number: No. 99-35254.,99-35254.
• Citation: 284 F.3d 1062
• Parties: Hugh R. KERN; Leigh Ann Lipscomb; Oregon Natural Resources Council, Plaintiffs-Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant-Appellee, and Douglas Timber Operators; Herbert Lumber Co.; Lone Rock Timber Company Incorporated, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

284 F.3d 1062

Hugh R. KERN; Leigh Ann Lipscomb; Oregon Natural Resources Council, Plaintiffs-Appellants, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant-Appellee, and Douglas Timber Operators; Herbert Lumber Co.; Lone Rock Timber Company Incorporated, Defendants-Intervenors-Appellees.

No. 99-35254.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2000.

Submission Withdrawn July 19, 2000.

Resubmitted January 29, 2002.

Filed March 22, 2002.

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Geoff Hickcox, Kenna & Hickcox, P.C., Durango, CO, for the plaintiffs-appellants.

Lois J. Schiffer, Assistant Attorney General; Kristine Olson, Thomas C. Lee, United States Attorney's Office, Portland, OR; David C. Shilton, Robert L. Klarquist, United States Department of Justice, Washington D.C.; Roger Nesbit, of Counsel Office of the Regional Solicitor, Portland OR, for the defendant-appellee.

Mark C. Rutzick, Mark C. Rutzick, P.C., Portland, OR, for the defendants-intervenors-appellees.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-98-06063-HO.

Before: GOODWIN, GRABER, and W. FLETCHER, Circuit Judges.

Opinion by Judge W. FLETCHER; Partial Concurrence and Partial Dissent by Judge GRABER.

WILLIAM A. FLETCHER, Circuit Judge.

Plaintiffs Hugh Kern, Leigh Ann Lipscomb, and the Oregon Natural Resources Council Fund (collectively, "ONRC") appeal the district court's grant of summary judgment to defendant United States Bureau of Land Management ("BLM") and defendants-intervenors Douglas Timber Operators, Herbert Lumber Co., and Lone Rock Timber Co. (collectively, "the timber companies"). ONRC's suit involves BLM action in the Coos Bay District, a BLM district along the southwest coast of Oregon.

ONRC contends that the BLM has failed to discharge its obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by twice failing in its decision process to consider adequately the impact of a pathogenic root fungus, Phytophthora lateralis ("the fungus"), on the Port Orford Cedar ("the Cedar"). First, ONRC challenges the adequacy of the Environmental Impact Statement ("EIS") prepared for the Coos Bay Resource Management Plan ("RMP") for the Coos Bay District. Second, ONRC challenges the adequacy of the Environmental Assessment ("EA") prepared for proposed timber sales in the Sandy-Remote Analysis Area within the Coos Bay District. Both ONRC and the defendants moved for summary judgment on ONRC's claims that the EIS and EA were inadequate under NEPA.

The district court dismissed ONRC's challenge to the EIS as unripe without reaching the merits, and rejected ONRC's challenge to the EA on the merits. It found that the EA adequately addressed the impact that the timber sales would have on the spread of the fungus to the Cedar, and it granted summary judgment to the BLM. For the reasons that follow, we reverse the district court's rulings on both the EIS and the EA, and direct that summary judgment be entered for ONRC. We hold that the challenge to the EIS was ripe, and that the EIS is inadequate under NEPA. We also hold that the EA is inadequate under NEPA.

I. Statutory and Factual Background

A. NEPA

The National Environmental Policy Act has "twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citation and internal quotation marks omitted). NEPA does not contain substantive environmental standards. Rather, it "establishes `action-forcing' procedures that require agencies to take a `hard look' at environmental consequences." Metcalf v. Daley, 214 F.3d 1135, 1141 (9th Cir.2000); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

NEPA requires federal agencies to prepare an EIS prior to taking "major Federal actions significantly affecting the quality" of the environment. 42 U.S.C. § 4332(2)(C).¹ Some proposed federal actions categorically require the preparation of an EIS. If the proposed action does not categorically require the preparation of an EIS, the agency must prepare an EA to determine whether the action will have a significant effect on the environment. See 40 C.F.R. § 1501.4(Council on Environmental Quality ("CEQ") regulations implementing NEPA); Metcalf, 214 F.3d at 1142. If the EA reveals that the proposed action will significantly affect the environment, then the agency must prepare an EIS. If the EA reveals no significant effect, the agency may issue a Finding of No Significant Impact ("FONSI"). See 40 C.F.R. §§ 1501.4, 1508.9; see also Metcalf, 214 F.3d at 1142.

B. The Coos Bay Environmental Impact Statement

The Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq., requires the BLM to prepare RMPs for the various districts under its control. See 43 U.S.C. § 1712. By definition, preparation of an RMP is a "major Federal action significantly affecting the quality of the human environment," and so categorically requires preparation of an EIS. See 43 C.F.R. § 1601.0-6(BLM regulations implementing FLPMA). In 1994, the BLM published an EIS for the proposed RMP for the Coos Bay District.

The Coos Bay District is within the geographic range of the Port Orford Cedar. The Cedar is a valuable component of forest ecosystems in southwestern Oregon and northwestern California and is susceptible to infection by the root fungus Phytophthora lateralis. The fungus may be spread in a number of ways, and is usually fatal to infected trees. PL can be transmitted by surface water in streams or ditches. New infections can also occur if soil infested with PL spores is transported to uninfected areas, for example in mud clinging to vehicles, pedestrians, and animals. Human activities that facilitate the spread of the fungus include timber cutting, road construction and maintenance, off-road vehicle use, livestock grazing, and commercial cedar bough and mushroom collection. See Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 662-63 (9th Cir.1998).

The plaintiffs assert that the EIS prepared in connection with the Coos Bay District RMP did not adequately discuss the effect of the fungus on Port Orford Cedar. Although the EIS mentioned the fungus and the Cedar, the EIS's discussion was limited to the statement that the BLM will:

Conform all management activities within the range of Port-Orford-cedar to the guidelines described in the BLM Port-Orford-cedar Management Policies to mitigate damage caused by Phytophthora lateralis. Site-specific analysis for projects within the range of Port-Orford-cedar will consider possible effects on the species.

In May 1995, the BLM approved the Coos Bay RMP, supported by the EIS. The RMP now governs projects within the Coos Bay District.

C. The Sandy-Remote Environmental Assessment

In 1996, the BLM proposed timber sales within a subsection of the Coos Bay District known as the "Sandy-Remote Analysis Area." Timber sales do not categorically require preparation of an EIS. An EA covering the Sandy-Remote Analysis Area was prepared in conjunction with the timber sale proposal. The spread of the fungus among Port Orford Cedar was one of the issues identified in the EA, but that issue was eliminated from the analysis. Using language echoing the Coos Bay EIS, the Sandy-Remote EA stated only that "following the guidelines established in the Port Orford Cedar Management Guidelines (BLM 1994) should reduce the spread of the root rot disease and that [following the Guidelines] would not have a significant adverse impacts [sic] to the resources." A FONSI based on the EA for the Sandy-Remote Analysis Area was signed on November 5, 1996. A decision document based on the EA and FONSI was prepared on February 11, 1997. The BLM then entered into eight timber sales based upon the EA and FONSI.

After this suit was filed and after several of the timber sales occurred,² the BLM revised the Sandy-Remote EA to include Section S, which discussed the impact of the timber sales on the spread of the fungus within the Sandy-Remote Area. Based on the revised EA, the BLM issued a new FONSI on July 14, 1998, finding again that the actions did not constitute a major federal action requiring an EIS. Based on the revised EA and new FONSI, the BLM issued another decision document allowing logging to go forward pursuant to the timber sales that had already occurred.

D. The Port Orford Cedar Management Guidelines

The plaintiffs timely commented on the Coos Bay RMP and its accompanying EIS, on the Sandy-Remote EA, and on the revised Sandy-Remote EA. Plaintiffs' main concerns centered on the fact that both the EIS and the EA referred to a document entitled the "Port Orford Cedar Management Guidelines" ("the Guidelines") but contained no analysis of the impact of the proposed RMP or proposed timber sales on the spread of the fungus and the effect of this spread on the Cedar. The Sandy-Remote EA was revised to respond to the concerns of plaintiffs and others by, inter alia, adding Section S, which provides some analysis of the effect of the proposed timber sales on the fungus and the Cedar. However, the revised EA also continued to refer to and rely on the Guidelines.

The BLM completed the Guidelines in 1994. The Guidelines describe strategies to minimize the spread of the fungus. These strategies have been incorporated by reference into a number of EISs and EAs in addition to the EIS for the Coos Bay RMP and the EAs for the Sandy-Remote Area, but the Guidelines themselves have never been subject to NEPA review. In 1995, a group of...