Save the Yaak Committee v. Block, No. 86-3808

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WALLACE, FLETCHER and BRUNETTI; BRUNETTI
Citation840 F.2d 714
Decision Date11 May 1988
Docket NumberNo. 86-3808
Parties, 18 Envtl. L. Rep. 20,608, 18 Envtl. L. Rep. 20,869 SAVE THE YAAK COMMITTEE, Donn Vance, Plaintiffs-Appellants, v. J.R. BLOCK, Secretary of Agriculture; R. Max Peterson, Chief, Forest Service; Thomas Costin, Region I Forester, Defendants-Appellees.

Page 714

840 F.2d 714
27 ERC 1687, 18 Envtl. L. Rep. 20,608,
18 Envtl. L. Rep. 20,869
SAVE THE YAAK COMMITTEE, Donn Vance, Plaintiffs-Appellants,
v.
J.R. BLOCK, Secretary of Agriculture; R. Max Peterson,
Chief, Forest Service; Thomas Costin, Region I
Forester, Defendants-Appellees.
No. 86-3808.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 6, 1987.
Decided March 1, 1988.
As Amended May 11, 1988.

Page 716

Charles Sheroke, Couer d'Alene, Idaho, for plaintiffs-appellants.

John T. Stahr, Washington, D.C., for defendants-appellees.

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

Before WALLACE, FLETCHER and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

The Save the Yaak Committee and Donn Vance (appellants) are appealing a district court decision denying their motion for summary judgment and request for injunctive relief, and granting the defendants' (appellees) cross-motion for summary judgment.

I
FACTS AND PROCEEDINGS BELOW

The Yaak River Road (the Road), extends approximately seventy miles from U.S. Highway 2, west of Libby, Montana, to its junction with Montana Highway 37 and U.S. Highway 93 near Eureka, Montana. The Road winds through the Yaak and Eureka Range Districts of the Kootenai National Forest, located in Lincoln County, Montana.

The mountain pine beetle has infested the extensive lodgepole pine stands located in the Upper Yaak Valley and portions of the Eureka district. The Forest Service has accelerated the harvest of these trees to salvage as many as possible. Over the next 20 years, the Forest Service estimates harvesting 175 million board feet on the Yaak and 54 million board feet on the Eureka tributary to the Road.

In the late 1960's, the Forest Service began reconstructing the Yaak River Road in five separate sections. Although environmental assessments (EA's) were prepared for four of the five sections, construction on the Porcupine Sullivan Creek section of the road began in June of 1982 without preparation of an EA. In fact, the Porcupine Sullivan Creek EA was not submitted until some two years after the Forest Service decided to reconstruct the Road. No comprehensive environmental impact statement (EIS) has ever been prepared for the reconstruction of the entire

Page 717

road. Additionally, a biological assessment (BA) was never completed prior to the construction of any one of the road's sections. However, in June of 1983, after most of the sections had been reconstructed, a biological assessment for the five sections was completed.

In August of 1983, the appellants filed an action in district court alleging violations of the Endangered Species Act and the National Environmental Policy Act, and requested declaratory and injunctive relief. On August 5, after a hearing, the district court denied the appellants' motion for a temporary restraining order. The appeal of that order was never perfected. The appellants later filed a motion for summary judgment, and the appellees filed a cross-motion for summary judgment. While these motions were under submission, this court rendered its decision in Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985). The appellants then renewed their application for injunctive relief. The district court held a hearing on July 18, 1985, and rendered its published decision granting the appellees' cross-motion for summary judgment on April 15, 1986. Vance v. Block, 635 F.Supp. 163 (D.Mont.1986). On April 21, the appellants timely appealed to this court. The appellants argue that the Forest Service has failed to comply with the procedural and substantive requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).

II

THE NATIONAL ENVIRONMENTAL POLICY ACT

The appellants argue that the Forest Service failed to comply with the National Environmental Policy Act. First, they argue that the EA was inadequate because it failed to analyze the project's impact on the environment. Additionally, they contend that each group of timber sales contracts was related to the reconstruction of a section of the Yaak River Road, the harvesting of timber, and the construction of secondary roadways necessary for the harvesting, and that all of these actions produced a cumulative impact on the environment. Because all of these actions are related and also produced a cumulative impact on the environment, appellants argue that they should have been analyzed in an EIS. The appellees refute the assertion that these actions are related, and therefore argue that a single EIS was not necessary.

A. Standard of Review

NEPA is primarily a procedural statute. Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir.1987). Therefore, agency action taken without observance of the procedure required by law will be set aside. Id.

In reviewing an agency decision not to prepare an EIS pursuant to NEPA, our inquiry is whether the "responsible agency has 'reasonably concluded' that the project will have no significant adverse environmental consequences." San Francisco v. United States, 615 F.2d 498, 500 (9th Cir.1980) (citation omitted). If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable. Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 (9th Cir.1982). Additionally, an agency's decision not to prepare an EIS will be considered unreasonable if the agency fails to "supply a convincing statement of reasons why potential effects are insignificant." The Steamboaters v. FERC, 759 F.2d 1382, 1393 (9th Cir.1985). Indeed, "the statement of reasons is crucial" to determining whether the agency took a "hard look" at the potential environmental impact of a project. Id.; Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). Thus, we will defer to an agency's decision only when it is "fully informed and well-considered." Jones v. Gordon, 792 F.2d 821, 828 (9th Cir.1986).

B. The EA's Analysis of Environmental Impacts

The Porcupine-Sullivan and the Yaak 92 Road Project EAs do not demonstrate that the Forest Service took a "hard look" at the environmental consequences of its actions. The frank and undisputed testimony of Forest Service personnel indicates that the Porcupine-Sullivan EA was not prepared to examine the environmental impacts, but to "evaluate various techniques of maintaining the road." Forest

Page 718

Service Supervisor Morden stated that the EA "[h]ad nothing to do with the question of environmental impact of the road itself, because it [already] existed." Moreover, the Forest Service wildlife biologist stated that the EA was "inadequate with regard to wildlife." The EA's entire discussion of wildlife is comprised of five brief sentences. 1 The only sentence that deals with endangered species states: The pass between Porcupine and Sullivan is in Grizzly Bear Situation IV." The discussion of the project's effects on wildlife merely states: "[a]ll alternatives will temporarily displace wildlife particularly big game during construction activities."

The Council on Environmental Quality (CEQ) regulations state that an environmental assessment must "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact or a finding of no significant impact." 40 C.F.R. Sec. 1508.9(a)(1) (1987). Moreover, the EA "[s]hall include brief discussions of ... the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. Sec. 1508.9(b) (1987). Since this EA was not intended to evaluate environmental consequences, it did not meet these threshold requirements.

The appellees contend that even if the EA was inadequate, it was supplemented by the biological assessment (BA) and thus could reasonably support the Finding of No Significant Impact (FONSI).

Although the Endangered Species Act allows a biological assessment to "be undertaken as part of a Federal agency's compliance with the requirements of ... the National Environmental Policy Act of 1969 (42 U.S.C. 4332)," 16 U.S.C. Sec. 1536(c)(1), this subsection does not indicate that a BA may substitute entirely for an EA. While a BA analyzes the impact of a proposed action upon endangered species, an EA analyzes the impact of the proposed action on all facets of the environment. Thus, if only a BA is prepared there may be gaps in the agency's environmental analysis.

In this case, even considering the EA and the BA together, the environmental analysis still has gaps. Various aspects of the environment were not evaluated in either of these documents. For example, although the BA considered the effects on endangered and threatened species, the EA did not seriously review the impacts of the project on other wildlife. Nor did the EA discuss the project's impact on plant life or recreation. Therefore, we conclude that substantial questions were raised regarding whether the project may have a significant effect on the quality of the environment.

Moreover, the preparation of these environmental documents was untimely. Proper timing is one of NEPA's central themes. An assessment must be "prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made." 40 C.F.R. Sec. 1502.5 (1987). The CEQ regulations "require federal agencies to 'integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values....' " Andrus v. Sierra Club, 442 U.S. 347, 351, 99 S.Ct. 2335, 2338, 60 L.Ed.2d 943 (1979) (citations omitted); California v. Block, 690 F.2d 753, 761 (9th Cir.1982). "The rationale behind this rule is that inflexibility may occur if delay...

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195 practice notes
  • Native Ecosystems Council & Alliance for the Wild Rockies v. U.S. Forest Serv., Case No. 4:11–cv–00212–CWD.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • June 6, 2012
    ...have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable.” Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988). In this case, it is undisputed that the Forest Service did not prepare an EIS for either the 2005 map or the Split Cre......
  • Pacific Northwest Generating Co-op. v. Brown, Civ. No. 92-973-MA
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • April 1, 1993
    ...preservation will be considered as factors in carrying out federal plans, functions and programs. Id., see also Save the Yaak v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (under NEPA, agency action will be set aside if procedures are not followed). NEPA requires all federal agencies to prepa......
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...Info. Ctr. , 56 F.3d at 1068 ).190 Dkt. 54-1 at 27 (stating "[d]evelopment thus remains a possible, though not certain, outcome.").191 840 F.2d 714 (9th Cir. 1988).192 753 F.2d 754 (9th Cir. 1985), abrogated in part on other grounds by Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 141......
  • Turtle v. Fed. Emergency Mgmt. Agency, No. 96–7661.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 22, 1997
    ...“is a mandatory, not optional, condition precedent for suit.” Id. at 26, 110 S.Ct. at 309;see also Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir.1988) (letters sent to various state and federal legislators did not satisfy the notice requirement because notice had not been sent to......
  • Request a trial to view additional results
195 cases
  • Native Ecosystems Council & Alliance for the Wild Rockies v. U.S. Forest Serv., Case No. 4:11–cv–00212–CWD.
    • United States
    • United States District Courts. 9th Circuit. District of Idaho
    • June 6, 2012
    ...have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable.” Save the Yaak Committee v. Block, 840 F.2d 714, 717 (9th Cir.1988). In this case, it is undisputed that the Forest Service did not prepare an EIS for either the 2005 map or the Split Cre......
  • Pacific Northwest Generating Co-op. v. Brown, Civ. No. 92-973-MA
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • April 1, 1993
    ...preservation will be considered as factors in carrying out federal plans, functions and programs. Id., see also Save the Yaak v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (under NEPA, agency action will be set aside if procedures are not followed). NEPA requires all federal agencies to prepa......
  • Chilkat Indian Vill. of Klukwan v. Bureau of Land Mgmt., Case No. 3:17-cv-00253-TMB
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 15, 2019
    ...Info. Ctr. , 56 F.3d at 1068 ).190 Dkt. 54-1 at 27 (stating "[d]evelopment thus remains a possible, though not certain, outcome.").191 840 F.2d 714 (9th Cir. 1988).192 753 F.2d 754 (9th Cir. 1985), abrogated in part on other grounds by Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139, 141......
  • Turtle v. Fed. Emergency Mgmt. Agency, No. 96–7661.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 22, 1997
    ...“is a mandatory, not optional, condition precedent for suit.” Id. at 26, 110 S.Ct. at 309;see also Save the Yaak Comm. v. Block, 840 F.2d 714, 721 (9th Cir.1988) (letters sent to various state and federal legislators did not satisfy the notice requirement because notice had not been sent to......
  • Request a trial to view additional results

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