Sierra Club v. U.S. Forest Service

• Decision Date: 24 June 1988
• Docket Number: No. 87-2749,87-2749
• Citation: 843 F.2d 1190
• Parties: , 18 Envtl. L. Rep. 20,749 SIERRA CLUB, a California non-profit corporation, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; Zane Smith, Regional Forester, Defendants- Appellees, Tule River Indian Tribe; Sierra Forest Products; Sequoia Forest Industries; Louisiana-Pacific Corporation; Western Timber Association, Defendant- Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1190

843 F.2d 1190

27 ERC 1973, 18 Envtl. L. Rep. 20,749

SIERRA CLUB, a California non-profit corporation, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; Zane Smith, Regional Forester, Defendants- Appellees Tule River Indian Tribe; Sierra Forest Products; Sequoia Forest Industries; Louisiana-Pacific Corporation Western Timber Association, Defendant- Intervenors-Appellees.

No. 87-2749.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 9, 1988.

Decided April 5, 1988.

As Amended on Denial of Rehearing June 24, 1988.

Ralph A. Bradley, Bradley & Gordon, P.C., Eugene, Or., for plaintiff-appellant.

Anna S. Almy, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants-appellees.

Michael E. Haglund, Lindsay, Hart, Neil & Weigler, Portland, Or., for defendant-intervenors-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before GOODWIN, NELSON and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

The Sierra Club brought this action pursuant to Section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4332(2)(C) (1982), challenging the Forest Service's decision not to prepare an environmental impact statement (EIS) for nine timber sales in the Sequoia National Forest (the Forest). The district court denied the Sierra Club's motion for a preliminary injunction to halt logging, which had already begun. However, the evidence demonstrates the Forest Service violated NEPA when it decided not to prepare an EIS for these timber sales. The Sierra Club has made a factual showing of irreparable injury; therefore, the balance of harms favors the issuance of an injunction to protect the environment. Amoco Prod. Co. v. Village of Gambell, Alaska, ---- U.S. ----, 107 S.Ct. 1396, 1404, 94 L.Ed.2d 542 (1987). We reverse the denial of the preliminary injunction and order the district court to grant this injunction immediately. We remand to the district court to determine if the recently filed final EIS for the Forest meets the requirements of NEPA with respect to the nine timber sales.

FACTS

This action arose in May of 1987 when the Sierra Club challenged the actual or anticipated awarding of nine timber sale contracts in the Forest: the Lion and Camp sales in the Hot Springs Ranger District, the Eye, Peyrone and Solo sales in the Tule River Ranger District, and the Bow Tie and Cabin sales in the Hume Lake Ranger District. At that time, there was no final EIS for the Forest. The Forest Service prepared environmental assessment (EAs) for eight of the nine sales pursuant to 40 C.F.R. Sec. 1508.9 (1987), concluding that no EIS was necessary for them because logging would not significantly affect the quality of the human environment. ¹ The Forest Service categorically excluded the ninth timber sale from the need for either an EIS or an EA, pursuant to 40 C.F.R. Secs. 1501.4(a)(2) (1987), 1507.3(b)(2)(ii) (1987), and 1508.4 (1982).

Five of the nine challenged sales contained groves of giant sequoia redwoods, which are renowned worldwide for their size and longevity. The Forest Service required a modified clearcutting method to be used in these groves whereby all vegetation except the giant sequoias is removed. The Forest Service claimed this method would enhance regeneration of the giant sequoia by exposing the bare mineral soil which they need to germinate.

The Sierra Club made two arguments in its motion for a preliminary injunction. First, it argued that NEPA and Ninth Circuit law require the Forest Service to prepare an EIS for the timber sales in question. Second, it argued that the EAs the Forest Service prepared were inadequate to meet NEPA's requirements.

NEPA requires the Forest Service to prepare an EIS for all "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). The Sierra Club argued that logging the sales was a major federal action. It argued there was a possibility of irreparable injury from clearcutting, because the Forest's esthetic and recreational qualities would be altered forever. It also argued it would suffer irreparable procedural injury without the environmental analysis that NEPA requires. Moreover, the Sierra Club maintained that the public interest strongly favored issuing an injunction since the Forest is a major destination for travelers and visitors worldwide because of its famous giant sequoias.

In its opinion denying the injunction, the district court did not discuss NEPA's requirements or whether the Forest Service had met them. It made no findings on the adequacy of the EAs. Instead, it found the parties simply differed in their opinions on how the Forest should be managed.

DISCUSSION

A. Standard of Review

A district court's order regarding preliminary injunctive relief is subject to limited review. The denial of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Sierra Club v. Marsh, 816 F.2d 1376, 1381-82 (9th Cir.1987). A court should not substitute its judgment for that of the agency as to the environmental consequences of the agency's actions. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). The only role for a court is to insure the agency has taken a "hard look" at environmental consequences. Id.

An agency's determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable. Foundation for North Am. Wild Sheep v. U.S. Dep't of Agriculture, 681 F.2d 1172, 1177 (9th Cir.1982). In judging "reasonableness," "[a] court should not substitute its judgment for that of an agency if the agency's decision was 'fully informed and well-considered.' " Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir.1985), (quoting Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978)).

B. Why NEPA Requirements Were Not Met

Section 102(2)(C) of NEPA requires that all federal agencies include a detailed statement of environmental consequences--known as an EIS--"in every recommendation or report on ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C); Kleppe, 427 U.S. at 394, 96 S.Ct. 2723. The Council on Environmental Quality (CEQ) has promulgated regulations, see 40 C.F.R. Secs. 1500-17 (1984), which bind federal agencies in implementing this requirement. Id. Sec. 1500.3. Under the CEQ regulations an agency generally must prepare an EA to decide whether an EIS must be prepared. Id. Sec. 1501.4(a), (b), (c); Jones v. Gordon, 792 F.2d 821, 827 (9th Cir.1986).

CEQ regulations outline factors that an agency must consider in determining whether an action "significantly" affects the environment within the meaning of section 102(2)(C). These factors include, inter alia, (1) the "degree to which the effects on the quality of the human environment are likely to be highly controversial," 40 C.F.R. Sec. 1508.27(b)(4); (2) the "degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks," 40 C.F.R. Sec. 1508.27(b)(5); (3) "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by ... breaking [the action] down into small component parts," 40 C.F.R. Sec. 1508.27(b)(7); and (4) "[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment," 40 C.F.R. Sec. 1508.27(b)(10).

The standard to determine if an action will significantly affect the quality of the human environment is whether "the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor." Foundation, 681 F.2d at 1177-78 (quoting Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 597 (9th Cir.1981). "A determination that significant effects on the human environment will in fact occur is not essential." Id. at 1178. "If substantial questions are raised whether a project may have a significant effect upon the human environment, an EIS must be prepared." Id. (emphasis omitted).

The record demonstrates the Sierra Club has presented facts which show the nine timber sales may significantly degrade some human environmental factor under each of the four C.F.R.s listed above. The EAs either do not discuss, or do not discuss adequately, these C.F.R.s. Consequently, the Forest Service's decision not to prepare an EIS was unreasonable.

First, the Sierra Club raised an issue as to whether logging in giant sequoia groves is likely to be "highly controversial." 40 C.F.R. Sec. 1508.27(b)(4). "The term 'controversial' refers 'to cases where a substantial dispute exists as to the size, nature, or effect of the major Federal action rather than to the existence of opposition to a use.' " Foundation, 681 F.2d at 1182 (quoting Rucker v. Willis, 484 F.2d 158, 162 (4th Cir.1973)). The Sierra Club introduced affidavits and testimony of conservationists, biologists, and other experts who were highly critical of the EAs and disputed the Forest Service's conclusion that there would be no significant effects from logging because the sequoias could be protected and their regeneration enhanced. ² This is precisely the type of "controversial" action for which an EIS must be prepared. Otherwise, 40 C.F.R. Sec. 1508.27(b)(4) is rendered a nullity. Compare Foundation, 681 F.2d at 1182 (held that critical responses from conservationists, biologists, and other experts to EAs prepared...