Northcoast Environmental Center v. Glickman

• Decision Date: 17 February 1998
• Docket Number: No. 96-17074,96-17074
• Citation: 136 F.3d 660
• Parties: , 28 Envtl. L. Rep. 20,632, 98 Cal. Daily Op. Serv. 1121 NORTHCOAST ENVIRONMENTAL CENTER; Klamath Forest Alliance; Siskiyou Regional Education Project; Kalmiopsis Audubon Society; Friends of Elk River; Oregon Natural Resources Council; and Siskiyou Audubon Society, Plaintiffs-Appellants, v. Daniel GLICKMAN, Secretary of the Department of Agriculture; and Bruce Babbitt, Secretary of the Department of Interior, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 660

136 F.3d 660

46 ERC 1271, 28 Envtl. L. Rep. 20,632,

98 Cal. Daily Op. Serv. 1121

NORTHCOAST ENVIRONMENTAL CENTER; Klamath Forest Alliance Siskiyou Regional Education Project; Kalmiopsis Audubon Society; Friends of Elk River; Oregon Natural Resources Council; and Siskiyou Audubon Society, Plaintiffs-Appellants, v. Daniel GLICKMAN, Secretary of the Department of Agriculture and Bruce Babbitt, Secretary of the Department of Interior, Defendants-Appellees.

No. 96-17074.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1997.

Decided Feb. 17, 1998.

Michael Axline, Carrie Stillwell, Western Environmental Law Center, Eugene, OR, Nathaniel S.W. Lawrence, Natural Resources Defense Council, San Francisco, CA, for plaintiffs-appellants.

Albert M. Ferlo, Jr., Michael E. Wall, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, Lois J. Schiffer, Assistant Attorney General, Michael J. Yamaguchi, United States Attorney, Charles M. O'Connor, Assistant United States Attorney, Rose Miksovsky, Office of General Counsel, U.S. Department of Agriculture, San Francisco, CA, Roger Nesbitt, Office of the Solicitor, Pacific Northwest Region, United States Department of Interior, Portland, OR, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesny, District Judge, Presiding. D.C. No. C 95-0038-MMC.

Before WOOD, Jr., ^* RYMER and TASHIMA, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Northcoast Environmental Center ("NEC"), ¹ along with several other environmental organizations, brought suit against the Secretaries of the Departments of Agriculture and Interior (collectively the "Secretaries") claiming the respective Secretaries failed to comply with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. Plaintiffs claim that NEPA requires the Secretaries to prepare a programmatic environmental impact statement ("EIS"), or at least an environmental assessment ("EA"), for their inter-agency Port-Orford cedar ("POC") management plan. Plaintiffs also seek to enjoin logging restrictions and road closings within several Pacific Northwest forests containing stands of POC until the defendant Secretaries comply with their NEPA obligations and prepare an EIS. Finding there was no "final agency action" or, if there was, the action did not impact the environment, the district court granted defendants' motion for summary judgment and plaintiffs appealed. Because we agree with the district court, that there was no final agency action and that the POC management documents do not constitute major federal action affecting the environment, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Port-Orford Cedar Fungus Problem

The POC is a valuable ecological and cultural component of forest ecosystems in southwest Oregon, northwest California, and inland populations in the Sacramento and Trinity River Basins. Phytophera lateralis ("fungus") is a pathogenic root rot fungus, fatal to infected POC. This fungus spreads and releases spores that are spread via roots, water, and moist infested soils. Human and animal activities facilitate the movement of the fungus over longer distances. Chronic fungus infection can occur in areas where trees have been killed in the past, and seedlings from natural regeneration may become infected as well. Activities such as road construction and maintenance, off-road vehicle use, timber harvest, mining, livestock grazing, hiking, and commercial cedar bough and mushroom collection in infested areas, and surface water movement present a risk of spreading the fungus.

B. The Forest Service's Response

In 1987 the United States Department of Agriculture's Forest Service ("FS"), Regions 5 and 6, formed an Inter-regional Coordinating Group comprised of FS experts and representatives from the National Forests and the United States Department of the Interior's Bureau of Land Management ("BLM"). The Coordinating Group's goals included: (1) developing a coordinated inter-regional POC management program; (2) monitoring, evaluating and fine tuning the program; (3) recommending public and agency education programs; and (4) identifying and recommending research requirements, proposals and policies on the management of POC to the two Regional Foresters. The Coordinating Group developed a plan to accomplish these tasks entitled the POC Action Plan.

The POC Action Plan was developed by the Coordinating Group in response to the Forest Service's concern, and that of the public, for a comprehensive and integrated approach to managing POC in the presence of the fungus disease. The Plan covers four main areas of concern: (1) inventory and monitoring; (2) research and administrative study; (3) public involvement and education; and (4) management. The management section of the POC Action Plan identifies the following tasks:

(1) Continue to refine and update risk assessment model used in evaluating projects.

(2) Develop strategies for the management of the following activities:

-- Timber sales

-- Road construction and management

-- Reforestation and stand management

-- Other potentially earth moving activities in stands where a significant component is Port-Orford cedar

(3) Develop a system or method for sharing information.

In June 1988, the FS's Regional Foresters for Regions 5 and 6 approved and signed the POC Action Plan. Challenging the FS's failure to prepare an EIS prior to adoption and implementation of the POC Action Plan, NEC appealed the Agency's adoption of the POC Action Plan on August 18, 1988. Responding to NEC's appeal in a letter dated March 29, 1989, the Regional Foresters declared that under NEPA the POC Action Plan did not require an EIS because the Plan did not provide for specific actions, but merely represented "the beginning of a planning process." On October 20, 1989, NEC's appeal was denied by the Deputy Chief of the FS, who stated: "[t]he action plan does not represent a specific proposal with environmental consequences that can be meaningfully evaluated at this time." NEC then filed a complaint requesting injunctive and declaratory relief with the district court, challenging the FS's decision not to prepare an EIS. On March 19, 1991, following the district court's denial of NEC's request for a temporary restraining order, NEC voluntarily dismissed the action.

In October 1993, after reviewing the status and accomplishments of tasks under the Action Plan, members of the Coordinating Group found that 85% of the action items had been completed. In the fall of 1994, the FS reorganized the Coordinating Group into two teams: a POC Oversight Team, to make decisions on budgeting and prioritization of research and administrative projects, and a Technical Team, to share information, develop research and administrative projects, and provide technical advice. Following April, 1995 meetings, the Coordinating Group determined that the majority of the Action Plan's items had been accomplished and the POC Oversight Team notified the Regional Foresters of Regions 5 and 6 that the Action Plan had been completed and could be concluded.

C. The Bureau of Land Management Response

The BLM completed its own POC Management Guidelines on October 5, 1994. These Guidelines contain management objectives, implementation strategies, measures for timber sale and service contracts to minimize spread of the fungus, and specifications for equipment washing and cleaning. The Guidelines provide lists of fungus control strategies and timber sale and service contract mitigation measures to be applied after site-specific NEPA analyses. Several BLM Resource Management Plans ("RMPs") include references to the POC Management Plan in their EIS statements regarding POC resource management. The Oregon Natural Resources Council ("ONRC"), a plaintiff in this case, protested the BLM's alleged failure to consider the alternatives of prohibiting logging and road building in uninfected watersheds to prevent the spread of the fungus in its EISs. The BLM denied ONRC's protests.

D. Procedural History

Plaintiffs filed this suit against the Secretaries on January 5, 1995. Their two count complaint sought declaratory and injunctive relief under both NEPA, 42 U.S.C. § 4321 et seq., and the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq. Count II, which contained the NFMA claim, was voluntarily dismissed and is not at issue in this appeal. After consolidating cross-motions for summary judgment and defendants' motion to strike plaintiffs' exhibits, the district court ruled for the Secretaries on both motions. On October 23, 1996 the district court entered judgment for the Secretaries as to Count I. NEC then timely filed this appeal on November 4, 1996.

II. DISCUSSION

NEC raises two issues on appeal. First, it claims that the district court judge abused her discretion by improperly striking certain documents submitted by NEC. Next, NEC claims that the district court erred, as a matter of law, in finding that NEPA did not require the Secretaries to prepare an EIS for their inter-agency POC management program.

A. Stricken Agency Documents

NEC contends that the district court erred by striking its exhibits. NEC presents two arguments for including its exhibits: (1) the general rule limiting judicial review to the administrative record does not apply where plaintiffs challenge an agency's refusal to prepare an EIS in the first instance, and (2) the documents submitted by plaintiffs fall within well-established exceptions to the rule limiting judicial review to the administrative record. The Secretaries, on the other hand, counter that NEC failed to show that its exhibits were considered by agency officials with decision-making authority at the time the POC Programs were developed and that several of NEC's exhibits postdate the completed FS Action Plan...