Oregon Natural Resources Council v. Lyng

• Decision Date: 21 July 1989
• Docket Number: No. 88-4092,88-4092
• Citation: 882 F.2d 1417
• Parties: 19 Envtl. L. Rep. 21,154 OREGON NATURAL RESOURCES COUNCIL; Hells Canyon Preservation Council; Friends of Lake Fork; Ric Bailey, Plaintiffs-Appellants, v. Richard LYNG, Secretary of Agriculture; U.S. Forest Service; Robert Richmond, Wallowa-Whitman National Forest Supervisor, Defendants-Appellees, Eagle Cap Logging, Inc.; RMH Aeroservices, Inc.; Boise-Cascade Corp.; Ellingson Lumber Co.; Idaho Timber Corp. of Oregon, Inc.; North Powder Lumber Co.; Sequoia Forest Industries; Union Forest Products Co.; Northwest Timber Workers Resource Council; Save Our Snake, Defendant-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1417

882 F.2d 1417

19 Envtl. L. Rep. 21,154

OREGON NATURAL RESOURCES COUNCIL; Hells Canyon Preservation

Council; Friends of Lake Fork; Ric Bailey, Plaintiffs-Appellants, v. Richard LYNG, Secretary of Agriculture; U.S. Forest

Service; Robert Richmond, Wallowa-Whitman

National Forest Supervisor, Defendants-Appellees,

Eagle Cap Logging, Inc.; RMH Aeroservices, Inc.;

Boise-Cascade Corp.; Ellingson Lumber Co.; Idaho Timber

Corp. of Oregon, Inc.; North Powder Lumber Co.; Sequoia

Forest Industries; Union Forest Products Co.; Northwest

Timber Workers Resource Council; Save Our Snake,

Defendant-Intervenors-Appellees.

No. 88-4092.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 8, 1989.

Decided July 21, 1989.

Gary K. Kahn, Portland, Or., Kerry L. Rydberg, Eugene, Or., for plaintiffs-appellants.

John A. Bryson, Washington, D.C., for defendants-appellees.

Michael E. Haglund, Portland, Or., for defendant-intervenors-appellees.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, REINHARDT and TROTT, Circuit Judges.

TROTT, Circuit Judge:

Plaintiffs Oregon Natural Resources Council, Hells Canyon Preservation Council, Friends of Lake Fork, and Ric Bailey (collectively "ONRC") appeal the district court's dismissal of their action for declaratory judgment, mandamus and injunctive relief. Alleging violations of the National Environmental Protection Act ("NEPA"), the Clean Water Act ("CWA"), and the Hells Canyon National Recreation Area Act ("HCNRA Act"), ONRC sought declaratory relief and an order enjoining the forest service from offering a timber sale in the Duck Creek area of the Hells Canyon National Recreation Area ("HCNRA") in the Wallowa-Whitman National Forest. ONRC also sought a mandatory injunction compelling the Secretary to promulgate regulations under section 10 of the HCNRA Act, 16 U.S.C. Sec. 460gg-7. Finally,

ONRC requested costs and attorneys' fees in accordance with the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm in part and reverse and remand in part.

BACKGROUND

The Hells Canyon National Recreation Area was established by Congress in 1975. It encompasses 652,488 acres of land in Eastern Oregon and Western Idaho, most of which had been managed under the National Forest System. This land, which includes the deepest gorge in North America and the seventy-one mile segment of the Snake River between the Hells Canyon Dam and the Oregon-Washington border, became the Hells Canyon National Recreation Area. The specified purpose of the HCNRA Act is "[t]o assure that the natural beauty, and historical and archeological values" of this area "are preserved for this and future generations, and that the recreational and ecologic values and public enjoyment of the area are thereby enhanced...." ¹ 16 U.S.C. Sec. 460gg(a).

The Act requires the Secretary to develop a "comprehensive management plan" ("CMP") that provides for a "broad range of land uses and recreation opportunities" in the HCNRA. 16 U.S.C. Sec. 460gg-5. In accordance with NEPA, and after consulting with a large number of federal, state and local agencies, elected officials, and private organizations, the forest service prepared an Environmental Impact Statement ("EIS") to aid in formulating the CMP. The EIS, issued in May of 1981, identifies key issues and concerns pertinent to the management of the HCNRA and proposes seven alternative plans for managing the area. The CMP, finalized in 1984, designates "Alternative C" as the HCNRA management plan. This alternative allocates the HCNRA to seven land-use classifications. Twelve percent of HCNRA land, including the Duck Creek area at issue in this appeal, is designated as "dispersed recreation/timber management." This designation permits timber management but requires it to be consonant with providing "ample opportunities for dispersed recreation." Permissible timber management activities include salvage cutting and the harvest of between five and nine million board feet of timber each year.

In November of 1981 a violent storm toppled many trees in the HCNRA. During the following two summers bark beetles attacked storm-felled Engelmann Spruce trees in the Duck Creek area. By the summer of 1984, the bark beetle population had begun to attack standing green trees. The voracious beetles had infested virtually all large Engelmann Spruce trees in the Duck Creek area by the summer of The forest service responded to the bark beetle epidemic, which has spread to other areas of the HCNRA, by preparing a site-specific "Environmental Assessment" ("EA") for the Duck Creek area. This EA, issued in February of 1988, identifies issues and opportunities related to the beetle problem and considers six alternative methods of managing the Duck Creek area's beetle-infected spruce. These methods range from taking no action to harvesting fifteen million board feet of timber. The EA designates "Alternative F" as the preferred alternative. On April 3, 1988, Robert Richmond, Supervisor of the Wallowa-Whitman National Forest, approved this alternative and concluded that its implementation would not have a significant impact on the quality of the human environment.

1987. Health and life departed from the Duck Creek area, which held an estimated twenty million board feet of dead and dying Engelmann Spruce timber by early 1988. Because Engelmann Spruce is a soft white wood that deteriorates quickly, salvage value of this specie declines rapidly after the year of infestation.

Alternative F calls for the harvest of approximately six million board feet of beetle-threatened, beetle-infected and dead trees from the Duck Creek area. The harvest is to be accomplished by cable logging and helicopter systems in order to protect wet areas and soils on steep ground and to avoid having to build a road system in the large, "unroaded" section of Duck Creek. The proposal leaves nearly sixty percent of the damaged timber unharvested in wildlife and visual areas and in riparian no-cut zones. The sawlog volume removed will postpone or defer cutting of an equal amount of volume on lower priority timber stands. Alternative F also requires that spruce "stringers" in a particular section of the Duck Creek area be left unharvested so as to protect elk habitat and migration.

On June 21, 1988 plaintiffs-appellants filed their complaint seeking declaratory, injunctive and mandamus relief from the proposed timber harvest. Plaintiffs-appellants also filed a motion for a temporary restraining order on the same day. On June 27, 1988 District Judge Owen Panner imposed a temporary restraining order, effective from June 23, 1988 to July 12, 1988. The contract for the Duck Creek timber sale had been awarded to Eagle Cap Logging, Inc., the only bidder, on June 23, 1988. Eagle Cap intervened in this action after a bench trial on the merits. Judge Panner found for defendants-appellees on July 11, 1988. Plaintiffs-appellants appealed this judgment and filed a request for an emergency injunction pending appeal both with the district court and with this court. Both requests were denied. Timber harvesting began in July of 1988, after Judge Panner's decision, but was suspended for the winter months. We heard oral argument in this appeal on February 8, 1989. On April 25, 1989, ONRC filed an emergency motion with this court seeking an injunction pending our ruling. We denied this motion, and logging resumed in late April.

ANALYSIS

I The National Environmental Protection Act

The National Environmental Protection Act requires federal agencies to file an environmental impact statement before undertaking "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). A federal agency must continue to gather and evaluate new information about the impact of its actions on the environment after it has released an EIS. Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1494 (9th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 2869, 101 L.Ed.2d 905 (1988). When "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impact" arise, the agency must prepare a supplemental EIS. 40 C.F.R. Sec. 1502.9(c)(2)(ii). If an agency is unsure whether a proposed project requires an initial or supplemental EIS, federal regulations ² direct the agency to prepare an Courts must uphold an agency determination that a supplemental EIS is not required if that determination is not arbitrary and capricious. ³ See Marsh v. Oregon Natural Resources Council, --- U.S. ----, 109 S.Ct. 1851, 1859-60, 104 L.Ed.2d 377 (1989). The decision not to prepare a supplemental EIS will not be considered arbitrary and capricious if it appears from the record that the agency has based its decision on a reasoned evaluation of the relevant factors. Id. 109 S.Ct. at 1861-62.

                environmental assessment on which it may then base its decision.  See 40 C.F.R. Sec. 1501.4(b)-(c).  The role of the EA is thus to "provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact."    40 C.F.R. Sec. 1508.9
                

Appellants base their attempt to undermine the forest service's decision not to supplement on the EA. They contend that the EA does not adequately address the factors contributing to the environmental impact of the bark beetle epidemic and timber sale. They argue first that EA minimizes the significance of the beetle attack and timber sale by failing to afford adequate consideration to their combined effect on elk, other wildlife, and water quality. Second, they allege that the EA is per se inadequate to support a finding of no significant impact because it fails to analyze the cumulative effect of the Duck Creek timber sale, to examine seriously the...