State of Cal. v. Block

• Decision Date: 22 October 1982
• Docket Number: 80-4112,80-4111,Nos. 80-4101,80-4115 and 80-4218,s. 80-4101
• Parties: , 40 Fed.R.Serv.2d 928, 13 Envtl. L. Rep. 20,092 STATE OF CALIFORNIA, Plaintiff-Appellee, v. John R. BLOCK * , in his official capacity as Secretary of the United States Department of Agriculture; et al., Defendant-Appellants. County of Del Norte, a political subdivision of the State of California, et al., Defendant-Intervenor-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 753

690 F.2d 753

18 ERC 1149, 40 Fed.R.Serv.2d 928, 13

Envtl. L. Rep. 20,092

STATE OF CALIFORNIA, Plaintiff-Appellee, v. John R. BLOCK ^*, in his official capacity as Secretary of the United States Department of Agriculture; et al., Defendant-Appellants County of Del Norte, a political subdivision of the State of California, et al., Defendant-Intervenor-Appellants.

Nos. 80-4101, 80-4111, 80-4112, 80-4115 and 80-4218.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 17, 1981.

Decided Oct. 22, 1982.

Robin L. Rivett, Sacramento, Cal., Jared G. Carter, Rawles, Hinkle, Finnegan, Carter & Brigham, Ukiah, Cal., David Booth Beers, Robert L. Klarquist, Dept. of Justice, Washington, D. C., for Bergland.

Edna Walz, Asst. Atty. Gen., Sacramento, Cal., argued for plaintiff-appellee; Francia M. Welker, Fort Bragg, Cal., on brief.

Trent W. Orr, San Francisco, Cal., for Natural Resource Defense Council.

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

Before TANG and ALARCON, Circuit Judges and KELLAM ^**, District Judge.

TANG, Circuit Judge:

This appeal is from a summary judgment and injunction entered against the Forest Service for failing to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4331-4332 (1976), in preparing an environmental impact statement ("EIS") on a Forest Service decision to allocate National Forest System land among three management categories. Four principal issues are raised. Did the district court err in holding that:

(1) the Final EIS did not contain an adequate discussion of the site-specific environmental consequences of the allocations?

(2) the Final EIS did not consider an adequate range of alternatives?

(3) the Forest Service did not give the public an adequate opportunity to comment on the proposed allocations (4) the National Forest Management Act, 16 U.S.C. § 1604 (1976), did not exempt the disputed allocations from review under the National Environmental Policy Act?

We affirm in part and reverse in part.

FACTS

This litigation concerns how the Forest Service intends to manage 62 million acres of the National Forest System. The National Forest System contains approximately 190 million acres, and includes 154 National Forests and 19 National Grasslands. The Forest Service is charged additionally with administering a large portion of the National Wilderness Preservation System ("NWPS"), which currently includes more than 19 million acres. The latter system was created by Congress in 1964 to provide statutory protection for areas that are relatively untouched by humankind. 16 U.S.C. § 1131 (1976). ¹ Under the mandate of the enabling legislation, the Secretary of Agriculture is directed to recommend to Congress "primitive" areas that should be added to the Wilderness System. Id. at § 1132. Other legislation also obliges the Secretary to manage National Forest land to foster "multiple-use" of the system's resources, including recreation, lumbering, mining, grazing and commercial fishing. ² In 1972, the Forest Service made an abortive attempt to devise a national planning document for the management of "roadless areas" within the National Forest System. Dubbed "Roadless Area Review and Evaluation (RARE I)," this effort ended when a federal court enjoined development pursuant to the plan until the Forest Service completed an EIS. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir. 1973).

In 1977, the Forest Service made a second attempt to evaluate programmatically the roadless areas in the National Forest System. This project, named RARE II, inventoried all roadless areas within the National Forest System and allocated each area to one of three planning categories: Wilderness, Further Planning and Nonwilderness. Areas designated as Wilderness were to be recommended to Congress for inclusion in the NWPS. A Further Planning designation meant that an area would be protected pending completion of unit management plans which would consider whether to recommend the area for inclusion in the NWPS. No controversy surrounds the Wilderness or Further Planning designations. The parties here dispute what a Nonwilderness designation means.

A draft EIS on the RARE II project was released to the public on June 15, 1978. The document consisted of a national planning description and twenty state and geographic area supplements. It identified ten alternative allocation methods which resulted in different allocations between the three planning categories, but did not tentatively endorse any of the alternatives as a Proposed Action. Each alternative reflected a different combination of decisional criteria. The criteria included Forest Service resource planning goals, wilderness attributes, public accessibility to wilderness areas, public comment and the economic effects of Wilderness classification. See Appendix, infra.

Public comment was solicited concerning the decisional criteria, the allocations that resulted from the alternatives, and possible alternative approaches not considered in the draft. The draft EIS prompted over 264,000 comments.

The Final EIS was filed on January 4, 1979. It identified for the first time the Forest Service's Proposed Action and called for allocating 15 million acres of RARE II lands to Wilderness, 10.8 million acres to Further Planning, and 36 million acres to Nonwilderness. See Forest Service, U. S. Dep't of Agriculture, RARE II Final Environmental Impact Statement, Roadless Area Review and Evaluation 37 (1979) (hereinafter cited as "RARE II Final EIS"). The Proposed Action was not one of the alternatives considered in the draft EIS, but represented an amalgam of all the decisional criteria considered in the draft EIS alternatives. See Appendix, infra. The percentage allocation produced by the Proposed Action was within the range of percentage allocations produced by the draft EIS alternatives, but was not roughly identical to any one set of allocation percentages considered in the earlier alternatives. See Table # 1, infra.

The Final EIS, unlike the earlier draft, was circulated only to Congress and to affected federal and state agencies. Its recommendations were sent to the President on May 2, 1979, who approved them after making some minor changes in the allocations. The wilderness recommendations were subsequently transmitted to Congress.

On July 25, 1979, the State of California brought action in federal district court against the Secretary of Agriculture and the Forest Service, alleging violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331-4332 (1976), ³ the Multiple-Use Sustained-Yield Act ("MUSY"), 16 U.S.C. § 528 (1976), and the California specifically challenged the Forest Service decision to designate forty-seven RARE II areas in California as Nonwilderness. On January 8, 1980, the district court granted California's motion for summary judgment. Without reaching the MUSY and NFMA claims, the court held that the RARE II Final EIS was inadequate to support the Nonwilderness designations of the disputed areas and therefore violated NEPA. It ruled that the Final EIS was deficient in three respects: (1) the EIS did not contain sufficient site-specific data to support the Nonwilderness designations; (2) the EIS did not consider an adequate range of alternatives; and (3) the Forest Service did not give the public an adequate opportunity to comment on the RARE II program.

National Forest Management Act ("NFMA"), 16 U.S.C. § 1604 (1976). The National Resources Defense Council, Trinity County, and the Clear Creek Legal Defense Fund were granted permissive intervention on the plaintiffs' side. (These parties, along with the State of California, will henceforth be referred to collectively as "California.") The district court denied a motion by Webco Lumber Company ("Webco") to intervene as of right, but allowed permissive intervention on defendants' side to Webco, as well as to the National Forest Products Association and the Counties of Del Norte, Shasta and Siskiyou. (These parties, along with the Secretary of Agriculture and the Forest Service, will henceforth be referred to collectively as "Forest Service.")

Pursuant to these holdings, the district court enjoined the Forest Service from taking any action that might change the wilderness character of the disputed areas in California until it filed an EIS that satisfied NEPA's requirements and considered the impact of the decision upon the wilderness characteristics of these areas. The court excepted from its order activities that had been previously analyzed in an EIS apart from the RARE II Final EIS. The court also enjoined the Forest Service from relying upon the RARE II Final EIS in preparing forest plans pursuant to the NFMA.

The Forest Service appeals from the summary judgment and injunction. Webco appeals, inter alia, from the district court's denial of its motion to intervene as of right.

DISCUSSION

I. Did the RARE II Final EIS adequately examine the site-specific impact of the Proposed Action?

The district court concluded that the RARE II Final EIS failed to consider adequately the site-specific impact of the RARE II decision. Specifically, the district court cited the following deficiencies:

-The EIS does not comprehensively describe any of the RARE II areas, limiting its evaluation per area to two pages of summary index numbers that do not identify the areas' unique characteristics (e.g., landmarks, rare and endangered species);

-No attempt is made to assess the wilderness value of each area (e.g., tourism, sales of wilderness oriented recreational equipment, conservation of wildlife and flora populations, soil conservation and stability, watershed protection, clean air and water);

-The EIS does not discuss the impact of Nonwilderness designations upon each area's wilderness characteristics and values (e.g., primary and secondary impacts, methods of mitigation,...