Thomas v. Peterson, No. 84-3887

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT, SNEED, and ALARCON; SNEED
Citation753 F.2d 754
Parties, 15 Envtl. L. Rep. 20,225 Harold THOMAS, dba Allison Ranch and Cook Ranch, et al., Plaintiffs-Appellants, v. R. Max PETERSON, in his official capacity as Chief of the United States Forest Service, Defendant-Appellee, and Inland Forest Resource Council, a Montana corporation, et al., Defendants/Intervenors-Appellees.
Decision Date11 February 1985
Docket NumberNo. 84-3887

Page 754

753 F.2d 754
22 ERC 1608, 15 Envtl. L. Rep. 20,225
Harold THOMAS, dba Allison Ranch and Cook Ranch, et al.,
Plaintiffs-Appellants,
v.
R. Max PETERSON, in his official capacity as Chief of the
United States Forest Service, Defendant-Appellee,
and
Inland Forest Resource Council, a Montana corporation, et
al., Defendants/Intervenors-Appellees.
No. 84-3887.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 6, 1984.
Decided Feb. 11, 1985.

Page 755

Michael Axline, Pacific Northwest Resources Clinic, Eugene, Or., for plaintiffs-appellants.

Albert M. Ferlo, Jr., Dept. of Justice, Washington, D.C., Hugh O'Riordan, Boise, Idaho, for defendant-appellee.

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

Before WRIGHT, SNEED, and ALARCON, Circuit Judges.

SNEED, Circuit Judge:

Plaintiffs sought to enjoin construction of a timber road in a former National Forest roadless area. The District Court granted summary judgment in favor of defendant R. Max Peterson, Chief of the Forest Service, and plaintiffs appealed. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

We conclude that: (1) The National Environmental Policy Act (NEPA) requires the Forest Service to prepare an Environmental Impact Statement (EIS) that analyzes the combined environmental impacts of the road and the timber sales that the road is designed to facilitate. (2) The National Forest Management Act (NFMA) does not forbid construction of a timber road the cost of which exceeds the value of the timber that it accesses. (3) The Endangered

Page 756

Species Act (ESA) requires the Forest Service to prepare a biological assessment to determine whether the road and the timber sales that the road is designed to facilitate are likely to affect the endangered Rocky Mountain Gray Wolf, and construction of the road should be enjoined pending compliance with the ESA.

I.

Statement of the Case

This is another environmental case pitting groups concerned with preserving a specific undeveloped area against an agency of the United States attempting to obey the commands given it by a Congress which is mindful of both environmentalists and those who seek to develop the nation's resources. Our task is to discern as best we can what Congress intended to be done under the facts before us.

Plaintiffs--landowners, ranchers, outfitters, miners, hunters, fishermen, recreational users, and conservation and recreation organizations--challenge actions of the United States Forest Service in planning and approving a timber road in the Jersey Jack area of the Nezperce National Forest in Idaho. The area is adjacent to the Salmon River, a congressionally-designated Wild and Scenic River, and is bounded on the west by the designated Gospel Hump Wilderness and on the east by the River of No Return Wilderness. The area lies in a "recovery corridor" identified by the U.S. Fish & Wildlife Service for the Rocky Mountain Gray Wolf, an endangered species.

The Jersey Jack area was originally part of the larger Gospel Hump roadless area, but when Congress created the Gospel Hump Wilderness in 1978, see Pub.L. 95-237, Sec. 4, 92 Stat. 40, 43, it did not include the Jersey Jack area. The Forest Service's Roadless Area Review and Evaluation (RARE II) in 1979 recommended that the Jersey Jack area be managed as non-wilderness. (For a discussion of RARE II, see California v. Block, 690 F.2d 753, 758 (9th Cir.1982).) In 1980, Congress passed the Central Idaho Wilderness Act, Pub.L. 96-312, 94 Stat. 948, which created the River of No Return Wilderness to the east of the Jersey Jack area, but left the Jersey Jack area as non-wilderness. The Act stated as one of its purposes to assure that "adjacent lands better suited for multiple uses other than wilderness will be managed by the Forest Service under existing laws and applicable land management plans." 94 Stat. 948.

In 1974, the Forest Service had produced the Nezperce Combined Timber Management Plan and Forest Road Program for the entire Nezperce National Forest. That Plan stated that some timber harvesting would take place in the Jersey Jack area, but did not discuss the proposed road. An EIS accompanied the Plan, but that EIS did not purport to satisfy the requirements of NEPA for individual areas within the National Forest. Instead, it stated that a "unit plan" would be prepared for each area, and that an EIS would accompany each unit plan. It further stated that roadless areas would not be developed until unit plans were prepared.

Subsequently, the Forest Service prepared ten unit plans and accompanying EIS's for areas in the Nezperce Forest. No unit plan, however, was prepared for the Jersey Jack area.

In 1976, Congress passed the National Forest Management Act. See 16 U.S.C. Secs. 1600-1614. Pursuant to that Act, the Forest Service replaced the unit planning process with a single planning process for the entire Nezperce Forest. The Forest Service is presently preparing a Forest Management Plan and accompanying EIS, but neither the plan nor the EIS was complete at the time that this appeal was filed.

After the passage of the Central Idaho Wilderness Act, the Forest Service, in keeping with its earlier expressed intention, proceeded to plan timber development in the Jersey Jack area. In November, 1980, the Forest Service solicited public comments and held a public hearing on a proposed gravel road that would provide access to timber to be sold. The Forest Service prepared

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an environmental assessment (EA), see 40 C.F.R. Sec. 1508.9 (1984), to determine whether an EIS would be required for the road. Based on the EA, the Forest Service concluded that no EIS was required, and issued a Finding of No Significant Impact (FONSI), see 40 C.F.R. Sec. 1508.13. The FONSI and the notice of the Forest Supervisor's decision to go ahead with the road were issued in a single document on February 9, 1981. The decision notice stated that "no known threatened or endangered plant or animal species have been found" within the area, but the EA contained no discussion of endangered species.

The EA for the road discussed only the environmental impacts of the road itself; it did not consider the impacts of the timber sales that the road was designed to facilitate. Subsequently, on November 23, 1981, and on June 30, 1982, the Forest Service issued EA's for, and approved, two of the timber sales. An EA for a third timber sale was also issued prior to the commencement of this action in district court. Each EA covered only the effects of a single timber sale; none discussed cumulative impacts of the sales or of the sales and the road. Each EA resulted in a FONSI, and therefore no environmental impact statements were prepared.

The plaintiffs appealed the Forest Supervisor's decision on the road to the Regional Forester, who affirmed the decision on May 26, 1981. The Regional Forester's decision was then appealed to the Chief of the Forest Service, who affirmed the decision on November 24, 1981.

The plaintiffs filed this action, challenging the Chief's decision, on June 30, 1982. Their three principal allegations are:

(1) NEPA, and regulations issued by the Council on Environmental Quality (CEQ), require the Forest Service to prepare an EIS that analyzes the combined effects of the proposed road and the timber sales that the road is designed to facilitate.

(2) The decision to build the road is inconsistent with the National Forest Management Act, 16 U.S.C. Secs. 1600-1614, because the cost of the road will exceed the value of the timber that it will access.

(3) The road is likely to affect the Rocky Mountain Gray Wolf, an endangered species, and the Forest Service has failed to follow procedures mandated by the Endangered Species Act, 16 U.S.C. Secs. 1531-1543.

After briefing and oral argument, the district court granted summary judgment for the Forest Service on all claims. Thomas v. Peterson (D.Idaho 1984) (hereinafter cited as Memorandum Decision). On the first claim, the court was "unable to find that the decision to build the road in question is anything more than a decision to build a forest road" and that an EIS covering both the road and the timber sales "would require needless speculation." Memorandum Decision at 1147, Excerpts of Record (E.R.) 97. On the second claim, the court found that the National Forest Management Act did not contain a clear mandate that the economic benefits from forest roads exceed their costs. Id. at 1151, E.R. 107. On the third claim, the court found that, although the Forest Service had not complied with the procedural requirements of the Endangered Species Act, it had "undertaken sufficient study and action to further the purposes" of the Act, id. at 1149, E.R. 103, and the court therefore declined to enjoin construction of the road. We shall discuss each of the three claims.

II.

The NEPA Claim

The central question that plaintiffs' NEPA claim presents is whether the road and the timber sales are sufficiently related so as to require combined treatment in a single EIS that covers the cumulative effects of the road and the sales. If so, the Forest Service has proceeded improperly. An EIS must be prepared and considered by the Forest Service before the road can be approved. If not, the Forest Service

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may go ahead with the road, and later consider the environmental impacts of the timber sales. 1

Section 102(2)(C) of NEPA requires an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C) (1982). While it is true that administrative agencies must be given considerable discretion in defining the scope of environmental impact statements, see Kleppe v. Sierra Club, 427 U.S. 390, 412-415, 96 S.Ct. 2718, 2731-2733, 49 L.Ed.2d 576 (1976), there are situations in which an agency is required to consider several related actions in a single EIS,...

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228 practice notes
  • 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
    ...as to whether a project is likely to jeopardize a species or adversely modify its critical habitat. § 1536(a)(2); Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). While formal consultation will satisfy the 822 F. Supp. 1488 agency's procedural obligation under § 7, an agency's reliance......
  • 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
    ...).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, 130 S.Ct. 2743, 177 L.Ed.2d......
  • Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, Case No. 12cv1167–GPC(PCL).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 2013
    ...has an insignificant environmental impact, but which collectively have a substantial impact.' ” Id. (quoting Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985)). We apply an “independent utility” test to determine whether multiple actions are so connected as to mandate consideration in a ......
  • Wilderness Society v. Bosworth, No. CV-97-208-M-LBE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • July 20, 2000
    ...of NEPA's procedural requirements." Forest Conservation Council v. USFS, 66 F.3d 1489, 1496 (9th Cir.1995)(citing Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985)). See also Neighbors of Cuddy Mountain v. USFS, 137 F.3d 1372, 1382 (9th Cir.1998); Page 1115 Sporting Congress v. Thomas, 1......
  • Request a trial to view additional results
229 cases
  • 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
    ...as to whether a project is likely to jeopardize a species or adversely modify its critical habitat. § 1536(a)(2); Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir.1985). While formal consultation will satisfy the 822 F. Supp. 1488 agency's procedural obligation under § 7, an agency's reliance......
  • 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
    ...).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, 130 S.Ct. 2743, 177 L.Ed.2d......
  • Quechan Tribe of the Fort Yuma Indian Reservation v. U.S. Dep't of the Interior, Case No. 12cv1167–GPC(PCL).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • February 27, 2013
    ...has an insignificant environmental impact, but which collectively have a substantial impact.' ” Id. (quoting Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir.1985)). We apply an “independent utility” test to determine whether multiple actions are so connected as to mandate consideration in a ......
  • Wilderness Society v. Bosworth, No. CV-97-208-M-LBE.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • July 20, 2000
    ...of NEPA's procedural requirements." Forest Conservation Council v. USFS, 66 F.3d 1489, 1496 (9th Cir.1995)(citing Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir.1985)). See also Neighbors of Cuddy Mountain v. USFS, 137 F.3d 1372, 1382 (9th Cir.1998); Page 1115 Sporting Congress v. Thomas, 1......
  • Request a trial to view additional results

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