SELECTED NEPA CASES IN 1998

Adequacy of Environmental Assessments Further, the Forest Service had neglected to under NEPA analyze the cumulative effects of the sale and four others planned for the same Blue Mountain Biodiversity Project v. watershed area. Blackwood, 161 F.3d 1208 (9th Cir. 1998), The court rejected the Service’s decided December 2, 1998, cert. den’d, 144 arguments that it had tiered the sale EA to L.Ed. 2d 235 (6/14/99). the EIS for the Umatilla Forest’s Following a 51,000 acre fire in the management plan, and, therefore, the EA Umatilla National Forest, the Forest Service and EIS together were adequate under proposed a program of salvage logging sales NEPA. Regulations promulgated by CEQ in the burned-over areas. The plaintiffs in define tiering as “the coverage of general this case argued that the Forest Service matters in broader environmental impact conducted an inadequate environmental statements . . . with subsequent narrower assessment of the proposed sales and that statements or environmental analyses”, 40 “substantial questions” remained about their C.F.R. § 1508.28. The court noted that the impacts. management plan’s EIS had been prepared Their charges were leveled primarily at years before the fire and that it contained no the Forest Service’s “cursory and discussion, even in general terms, of the inconsistent treatment” of the risk of damage impacts of logging in burned-over areas. to salmon and trout habitat as a result of Since the EIS did not, and could not, increased sedimentation. The EA conducted evaluate the impacts of the fire or by the Service contained no documentation subsequent logging, it could not serve as the of its sedimentation estimate; indeed the foundation for a tiered EA for the later agency’s only attempt to measure sediment proposed sale. failed because of an overloaded data Writing for the court, Judge Fletcher collection box. The Ninth Circuit rejected took special notice of the efforts the local the agency’s claims that its decision was Forest Supervisor appeared to take to favor supported by adequate data; “The EA logging over compliance with environmental contains virtually no references to any laws. The Service had determined to make material in support of or in opposition to its timber sales in advance of the EA, fearing a conclusions. That is where the Forest “snag” through appeals and litigation in their Service’s defense of its position must be timber sales. Over half of the trees in the found.” 161 F.3d at 1214. project area had been harvested before the The court found other deficiencies, as Circuit Court had imposed a preliminary well. The court ruled that the Service had injunction. In deciding to maintain this failed to address the cumulative impacts of injunction, the court imposed “the ‘snag’ five potential logging projects within the that the Forest Service feared but the law same watershed. In conducting its EA on requires.” The Forest Service was ordered to one of the sale areas, the Forest Service had comply with its NEPA obligations for a failed to identify any of the routes or comprehensive examination of the locations of the 18 miles of logging roads cumulative effects of the proposed sales. required by the sale, or to document the The opinion also contains some notable estimated sediment that would result from instruction for district courts hearing NEPA road construction and logging operations. claims. While applauding the district court’s close attention to detail in sorting out the Following Idaho Sporting Congress, a Forest Service’s piecemeal studies of the district court in the Ninth Circuit gave project, the Circuit Court urged that it greater deference to the Forest Service’s EA should have been more mindful of the findings in Blue Mountains Biodiversity overall purpose of NEPA. “NEPA Project v. Pence, 22 F. Supp. 2d 1136 (D. emphasizes the importance of coherent and Or. 1998), decided September 21, 1998. In comprehensive up-front environmental this case, plaintiffs sought to enjoin a analysis to ensure informed decision making proposed timber sale by alleging that the EA . . . An EIS is required of an agency in order contained no scientific or analytical data to that it explore, more thoroughly than an EA, support the conclusion that logging activities the environmental consequences of a would improve water quality and fish proposed action whenever ‘substantial habitat. Plaintiffs further maintained that questions are raised as to whether a project there was substantial uncertainty concerning may cause significant (environmental) the impact of the proposed logging on eight degradation.’ This is exactly the woodpecker species. circumstance of this case.” 161 F.3d at The court found that a 1996 watershed 1216. and fisheries report had examined the water quality impacts of the proposed sale and this Idaho Sporting Congress v. Thomas, 137 analysis resulted in a modification to the F.3d 1146 (9th Cir. 1998). Decided March 4, forest’s management plan. Through this 1998. report and other analyses the agency The Forest Service proposed two timber satisfied the “hard look” requirement for sales on adjacent tracts, and conducted EAs consideration of water quality issues. that led to FONSI determinations despite the The court specifically recognized that presence of bull trout, an indicator species, the EA and the administrative record in streams within the sale areas. The Forest together provided an “extensive discussion Service neglected to supplement one of the and analysis of water quality and fisheries.” EAs to reflect the cumulative effect of 22 F. Supp. 3d at 1142. The court further logging on the adjacent tract and relied on a found that the Forest Service relied on three year old water quality survey as the ample scientific evidence in determining basis of its FONSI determination. The court that the sale would not have an adverse held that the use of this survey, even though impact on woodpecker populations or it was supported by one from 1985, did not habitat, and it granted summary judgement meet NEPA requirements because neither for the agency. provided the public with a basis for evaluating the proposed sale. The court Courts generally continue to maintain a further held that Forest Service undertook high level of deference to agencies’ insufficient analysis of the brook trout findings. Plaintiffs in Mt. Lookout – Mt. population in the area, and that an EIS was Nebo Property Protection Assoc. v. Federal necessary. In requiring that the Forest Energy Regulatory Commission, 143 F.3d Service conduct an EIS for the first sale, the 165 (4th Cir. 1998), decided Jan. 26, 1998, court ruled that it was not necessary to were unable to persuade the court that the supplement the EA for the second, as long Federal Energy Regulatory Commission as the EIS incorporated an analysis of the erred in an EA or ensuing FONSI cumulative effect of both sales. determination. The FERC had originally granted the City of Summerville a license to construct and operate a small hydroelectric controlling a root rot fungus which effects power plant and transmission line that would Port-Orford Cedar (POC). Plaintiffs alleged run 8 miles to the northward. Subsequently, that Secretaries of Agriculture and Interior FERC approved an amendment to the erred by not preparing a programmatic EIS license that would allow the city’s or at least an EA for this plan and sought to transmission line to run to a different enjoin activities within timber stands until substation, 9.6 miles to the south and across such assessment was conducted. They a river. Plaintiffs sought an injunction, argued that the POC program was analogous alleging that FERC erred in its EA to other federal, interregional management conclusion that an EIS was not warranted plans which have required EISs. They and that FERC gave inadequate argued that the agencies were shielding the consideration to reasonable alternatives as POC program from NEPA’s requirements required by NEPA. The court held that simply by designating the plan as a guidance FERC’s FONSI determination was document. warranted because the record indicated that The agencies defended their decision not the impact of the new route would be similar to conduct an EIS by characterizing the plan to that of the earlier, proposed route and that as preliminary research and development this impact was not likely to be significant. efforts. They pointed out that the documents Likewise, the FERC analysis of the had been circulated for informational alternatives, limited to the southerly route purposes only and did not call for any and an alternate proposed by the plaintiff, specific actions nor commit any resources. was adequate. Relief was denied. Despite being a “close call”, the court found for the agencies, agreeing that the No “significant federal action,” therefore formulation of the management plan was no NEPA requirement. merely the beginning of the planning process. 136 F.3d at 669. It noted that the Several court decisions announced that plan set forth guidelines and goals for POC prominent agency programs did not rise to research, management strategies and the level of action which triggers NEPA information sharing. Finding that these requirements. NEPA requires that federal guidelines “neither propose any site-specific agencies conduct an environmental analysis activity nor do they call for specific actions for any “major Federal actions significantly directly impacting the physical affecting the quality of the human environment,” the court ruled that the plan environment.” This requirement has evolved was thus not a major Federal action falling through case law and regulations to reach within NEPA’s requirements. 136 F.3d at final actions that have an actual or 670. immediately threatened effect on the environment. State of Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998), decided March 3, 1998. In the first, Northcoast Environmental BLM appealed an injunction granted by a Center v. Glickman, 136 F.3d 660 (9th Cir. district court against its inventory of Utah 1998), decided Feb. 17, 1998, the Forest lands with wilderness characteristics. The Service and BLM had prepared an inter- survey was essentially a review of the lands agency management plan for Port-Orford included in a bill which would establish 5.7 Cedar. As part of the plan, these agencies million acres of wilderness in Utah. The undertook to develop strategies for Secretary of the Interior did not contemplate making any management decisions or other the implementation of the Interim Plan. The determinations based on the survey. On court held that this claim failed because the appeal, BLM argued that the State would EA associated with the Interim Plan had suffer no irreparable damage from the reached a FONSI determination. Thus, the survey, that there was no “final agency Interim Plan was not a major federal action action” which made the survey ripe for significantly affecting the quality of the review, and that the survey did not require human environment, and 1506.1(c) was not public participation under FLPMA or applicable. NEPA. In overturning the injunction, the Circuit A court has again found that a settlement Court held that plaintiffs lacked Article III to a legal claim cannot be considered as a standing because they suffered no injury in “major federal action” as defined by NEPA. fact, that land surveys conducted under In Miccosukee Tribe of Indians of Florida v. FPLMA § 202 do not require public U.S., 6 F. Supp. 2d 1346 (S.D. Fla. 1998), participation, and that NEPA’s public decided March 11, 1998, the U.S. process requirements did not apply because Department of Justice had entered into a the survey did not qualify as a “major settlement agreement with a Florida federal action significantly affecting the corporation whereby DOJ agreed not to sue quality of the human environment.” the corporation. In return, the corporation promised to comply with the Everglades Yellowstone National Park’s efforts to phosphorus removal program and to pay its control its bison herd survived court negotiated share of clean up costs. challenge in Intertribal Bison Cooperative v. Subsequently, plaintiffs sued the United Babbitt, 25 F. Supp. 2d 1135 (D. Mont. States, the Dept. of Interior, and various 1998), decided Nov. 5, 1998. This action officials to enjoin the agreement, alleging resulted from federal programs designed to that DOI had failed to conduct an EIS and control the winter migration of bison from violated APA notice and comment their home range in Yellowstone National provisions. Park to surrounding public lands and private The court cited the well established rule ranches. The State of Montana and the that negotiated settlements to litigation did National Park Service engaged in various not constitute a major federal action, found programs over the years to return or kill that no specific federal actions had been stray bison in order to prevent the spread of proposed, and dismissed the Tribe’s brucellosis to area cattle herds. The State, complaint. NPS and USDA’s Animal and Plant Inspection Service (APHIS) agreed to new The principle of ripeness determined the bison control measures in a 1996 Interim outcome of Grand Canyon Air Tour Management Plan. Coalition v. FAA, 154 F.3d 455 (DC Plaintiffs sought to enjoin Cir.1998), decided Sept. 4, 1998. In this implementation of this plan by challenging case, the plaintiff alleged that the FAA the NPS’s determination that its violated NEPA by concluding in an EA that implementation did not require an EIS. a final rule concerning sightseeing Since an EIS was then being prepared in overflights would have no significant connection with a long-term management environmental impacts. The Court of plan, plaintiffs argued that, until this study Appeals for the D.C. Circuit held that the was complete, 40 C.F.R. § 1506.1(c) barred NEPA claim was not ripe for review because the FAA had not yet adopted a final Plaintiffs sought to enjoin construction list of available airways for such overflights; of a HUD funded hotel and garage by therefore it had no way to evaluate the claiming that the City of Philadelphia’s EA effects of such a decision. had failed to consider cumulative impacts of redevelopment scheme and alternative sites Cumulative Impacts for project. The court dismissed their claim, holding that the other projects were not Judicial scrutiny of agency cumulative inseparable from the hotel’s “functionality” impacts analyses continued in Neighbors of and that record did not show that these Cuddy Mountain v. United States Forest projects were ever expected to materialize. Service, 137 F.3d 1372 (9th Cir.1998), In making this ruling, the court held that decided March 4, 1998. Local where future development is unlikely, there environmental groups challenged a Forest was no need to analyze cumulative impacts. Service logging sale in the area of an old The court also found that the alternatives growth forest. Plaintiffs argued that the EIS analysis was adequate. prepared for the sale failed to give adequate consideration to the cumulative impacts Alternatives created by three other sales in the same roadless area. Alaska Center for the Environment v. West, The court agreed, finding that the agency 31 F. Supp.2d 714 (D. Al. 1998), decided “provided no detail regarding the extent to April 30, 1998. which the proposed sales would A coalition of environmental cumulatively impact and reduce old growth organizations challenged the decision by the habitat,” id. at 1379. The Forest Service was Army Corps of Engineers to issue Clean obliged to “consider” cumulative impacts, Water Act Nationwide Permit for Single and it had a duty to provide quantified or Housing 29. Plaintiffs alleged that detailed information about these impacts. promulgation of the Permit would violate The agency’s failure to do so deprived CWA, NEPA, and ESA. Permit 29 applied decision-makers of analyses needed to judge to the construction or enlarging of single the logging program’s effect on family homes. It would allow people to management indicator species’ populations deposit fill into wetlands, without a § 404 and habitat. permit, if the fill did not cause the loss of The court also found fault with the more than ½ acre of non-tidal wetlands. Forest Service’s strategies for mitigating In making their challenge, plaintiffs adverse impacts to water quality in area argued that the Corps violated NEPA by not streams. Noting that “(the agency’s) considering a “no action” alternative; in this perfunctory description of mitigating case, the alternative of not issuing a measures is inconsistent with the ‘hard look’ nationwide permit for single-family housing. it is required to render under NEPA,” id. at The court rejected this argument, reasoning 1381, the court enjoined further logging on that the Corps Decision Document the sale until the Forest Service satisfactorily reasonably explained that deciding not to complied with its NEPA duties. issue the permit would not achieve the purpose of reducing the regulatory burden Society Hill Towers Owner’s Assoc. v. on applicants, would leave the Corps Rendell, 20 F. Supp.2d 855 (E.D. Pa. 1998), without a consistent nationwide regulatory decided September 16, 1998. framework for single family home construction, and would discourage applicants from designing projects to Categorical Exclusions minimize wetlands impacts. Plaintiffs further alleged that the Corps Rhodes v. Johnson, 153 F.3d 785 (7th neglected to consider alternatives which Cir. 1998), decided Aug. 27, 1998. would have raised the ½ acre ceiling or Prior to conducting controlled burn and excluded high-value waters. Curiously, the shrub removal in a National Forest, the Corps had discussed acreage ceilings when Forest Service conducted an in-house it issued the original version of NWP 29 in “environmental analysis” which concluded 1995. However, none of this discussion was that actions would not significantly impact included in the EA for the revised permit. the environment. The Service did not Since the EA lacked any discussion of these conduct an EA because under its alternatives, the court held that the EA was Environmental Handbook, such activities inadequate and issued an injunction on the qualified for “categorical exclusion” from an employment of NWP 29. EIS requirement, as per 40 C.F.R. § 1508.4. Plaintiffs alleged that the same Kuff v. United States Forest Service, 22 regulations required an EA because the F. Supp. 2d 987 (W.D. Ar.), decided Sept. presence of endangered species in the burn 28, 1998. area fell under the “extraordinary An individual sought to enjoin timber circumstances in which a normally excluded sales in two areas of the Ozark National action may have a significant environmental Forest, alleging that the Forest Service failed effect.” to consider “no action” and “recreation only The court agreed, and held that USFS alternatives.” Plaintiff argued that the must abide by the plain language of their alternative labeled as “no action” in the EA own Forest Service Environmental Policy actually represented an agency action and Procedures Handbook. This Handbook because the timber sale area would be mandated an EA whenever “extraordinary designated for “old growth management”. circumstances” are found within an area The court found that old growth affected by a proposal. Therefore, the management did not constitute an action agency erred in applying a categorical because it was merely the continuation of exclusion. The court recognized that it must the existing management plan. As such, the give substantial deference to an agency’s Forest Service had properly considered a interpretation of its regulations; however, an “no action” alternative as mandated by agency’s authority does not extend to NEPA regulations. interpretations that conflict with the plain As for the failure to examine a language of the regulations. recreation-only alternative, existing case law In each of three references to held that the Forest Service was not bound extraordinary circumstances, the focus was to consider alternatives that did not accord on the mere existence of the circumstances with the general goals for the proposed (e.g., the presence of protected species or action. Since the goals proposed for the areas) and there was no mention of any link management of the area in question included between the circumstance and significant a provision for sustainable timber supply, impacts on the human environment. USFS was not obliged to consider a Consequently, the court rejected the Forest recreation only alternative. Defendants’ Service’s interpretation that an motion for summary judgement was granted. environmental assessment was not required, and the forestry actions were enjoined Tiering pending completion of an EA. Friends of Southeast's Future v. A West Virginia district court reached a Morrison, 153 F.3d 1059 (9th Cir. 1998), different conclusion regarding categorical decided Sept. 3, 1998. exclusions in Krichbaum v. U.S. Forest Plaintiffs in this case claimed that the Service, 17 F. Supp. 2d 549 (W.D. Va. Forest Service committed several NEPA and 1998), decided August 27, 1998. NFMA violations related to a proposed Here the Forest Service proposed to timber sale in the Tongass National Forest. conduct a timber sale and relied on a Specifically, they alleged that: (1) the Forest categorical exclusion in deciding not to Service failed to conduct an EIS for a 1991 conduct an EA for the project. As in Rhodes, Tentative Operating Schedule for the sale the plaintiff argued that the presence of the area, (2) the final EIS failed to adequately timber sale area within a municipal consider a no-action alternative, and (3) the watershed constituted an “extraordinary Forest Service violated NFMA when it circumstance” that barred reliance on the failed to conduct an Area Analysis as CE. His argument relied on the fact that the required by the Tongass Land Management Forest Service’s own regulations include Plan. municipal watersheds in an illustrative list of The court found that the Tentative extraordinary circumstances. Operating Schedule did not require an EIS However, this court determined that the since it failed to qualify as an "irreversible list was not intended to be definitive. It and irretrievable commitment" of resources, looked to additional sections of the Forest because it "makes no commitment of any Service Handbook and found that the part of the national forests". The court also Service required more than the presence struck down the plaintiffs' second claim, alone of an extraordinary circumstance to holding that the Forest Service's decision to preclude the use of a CE. Rather, a CE reject the no action alternative was would be barred only when the proposed reasonable in light of at least one goal of the project would have some negative impact on Management Plan. the features that made up the extraordinary Finally, the court addressed the circumstance. In this case, the agency’s plaintiffs' claim that the Forest Service had specialists had concluded that the proposed violated NFMA by not conducting an "area logging would have no adverse effect on the analysis" for the proposed project. The municipal watershed. plaintiffs argued that the Forest Supervisor There is some considerable divergence never conducted the area analysis as between these two opinions. The district required by the Management Plan. The court was willing to treat the Forest Forest Service claimed that the area analysis Service’s decision with a much greater was conducted within the confines of the degree of deference. Its review of the EIS. The court held that, per the Forest agency’s findings concerning watershed Service’s own guidance requiring project- impacts was relatively uncritical; in some related environmental analyses to be tiered measure this may be due to an apparent to the area analysis documentation and the absence of contradictory findings by the definition of "tiering" contained in 40 C.F.R. plaintiff. § 1508.28, the decision to eliminate alternative sites without the area analysis and before the EIS thus was made without the opportunity for public comment. This fact violated the Management Plan’s agency had acted “reasonably” when it made requirement for public involvement. Finding its scientific determination. The court found that the Forest Service failed to comply with that the FHWA had, in fact, based its the standards for tiering and public decision on “a reasoned evaluation of all the involvement contained within NFMA, the relevant factors” (9 F. Supp. 2d at 1241), court upheld an existing injunction pending and that there was no clear error in satisfactory analysis by the Forest Service. judgment. Allowing for the discretion traditionally granted to an agency’s reliance Scientific Evidence (Daubert principle) on its own expert advice, the court dismissed the claims brought by the plaintiff. This year, courts hearing NEPA claims The decision in this case conflicted with encountered an emergent area of law – the that in Stewart v. Potts, 996 F. Supp. 2d 668 application of scientific evidence tests to (S.D. Tex. 1998), decided March 6, 1998. agency decisionmaking. Plaintiffs have Here, plaintiffs brought a claim under the sought to challenge the adequacy of the APA against the Army Corps of Engineers science used by agencies in conducting for violating Section 404 of the Clean Water environmental analyses. These challenges Act. Among other things, they alleged that were based on the standards for the the Corps failed to give adequate analysis to admission of scientific evidence set forth by the potential detrimental impacts of filling the Supreme Court in Daubert v. Merrell wetlands as part of a golf course Dow Pharmaceuticals, 509 U.S. 579 (1993). construction project. As part of their claim However, courts as yet are reluctant to on this issue, the plaintiffs sought to have disturb established principles of deference the court review the Corps’ scientific for agency decisionmaking by holding analysis under the standards set forth in agencies to the heightened evidentiary Daubert. standards of Daubert. In Hells Canyon The court refused to apply the Daubert Preservation Council v. Jacoby, 9 F. Supp. standard to the review of scientific evidence 2d 1216 (D. Or. 1998), decided May 8, relied upon by the Corps, holding that 1998, plaintiffs brought a claim to challenge Daubert applied only to evidentiary matters, a decision by the Federal Highway not to the review of scientific information Administration to reconstruct a Forest used internally by an agency in making a Service road without first conducting an decision. Accordingly, the agency’s EIS. As part of their case, plaintiffs expertise in making scientific determinations introduced affidavits which cast doubt on was entitled to a high degree of deference, the adequacy of the FHWA’s biological and the plaintiffs’ claim was dismissed. assessment. In denying defendant’s motion for summary judgement, the court rejected the motion to bar these affidavits, relying on the test announced in Daubert to find that the affidavits were admissible as scientific evidence. However, the court allowed this evidence for a very carefully constrained purpose. Under the arbitrary and capricious standard, the court entertained the plaintiffs’ evidence solely to determine whether the