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Blue Mountains Biodiversity Project v. Blackwood

 

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In August 1996, wildfires raged through the Umatilla National Forest in northeast Oregon. The largest of these fires (and the largest recorded fire in Umatilla National Forest history), the Big Tower Fire, burned over fifty-one thousand acres of forestland surrounding the John Day Basin, the largest river basin in Oregon that is free from impoundments. Soon after the fire, the United States Forest Service (USFS or Service) prepared a fire recovery strategy, which included five salvage timber sales. The largest project, the Big Tower project, included three timber sales that would result in the harvest of approximately thirty million board feet of timber and require eighteen miles of new or reconstructed roads. In July, the Forest Service prepared an environmental assessment (EA) for Big Tower, and issued a decision notice and finding of no significant impact (DN/FONSI) on September 8, 1997.

Blue Mountains Biodiversity Project (BMBP) and other conservation groups administratively appealed the decision, but in December 1997, an administrative appeals officer upheld the Service’s decision to implement the Big Tower project. BMBP moved for summary judgment in district court, but the lower court denied this motion as well as a motion for an injunction on July 24, 1998. Logging subsequently began in August, and BMBP appealed to the Ninth Circuit.

On appeal, the appellants raised two main issues. They claimed that 1) the National Environmental Policy Act (NEPA)[2] required the preparation of an environmental impact statement (EIS) for the Big Tower project, and 2) that the USFS had failed to assess the cumulative impacts of Big Tower and other salvage timber sales in the area. The court agreed and required the Forest Service to prepare an EIS for the project.

First, the court addressed the claim that the USFS should have prepared an EIS. The court noted that the threshold question for whether an EIS is required is whether there are significant questions regarding the impacts of the proposed action, and that the court must apply the “hard look” standard of review in assessing the agency’s decision. Significant questions are present when the proposed action is highly controversial or has unknown effects.[3] In this case there was a “substantial dispute . . . concerning the likelihood and significance of adverse environmental effects from post-fire logging and road construction.”[4] Several factors led the court to determine that USFS should have prepared an EIS.

For example, prior to the Big Tower fires, the Regional Forest Supervisor instructed USFS to consider in any postfire analysis the “Beschta Report,” an independent report that detailed the adverse effects of salvage logging on recently burned forestland. The Forest Service, however, failed to utilize the report on the Umatilla National Forest. In addition, the Service did not address the impact that sediment generated from timber harvest would have on fisheries in the project area. The agency claimed that the harvest would generate less sediment than the fire had generated, but the agency had no data to support this conclusion because its “data collection box overloaded with sediment.”[5]

The court also noted that the EA did not include specific locations for the proposed roads or the number of stream crossings contemplated by the Service. The Ninth Circuit held that the lack of a discussion of site-specific impacts does “‘not constitute a hard look absent a justification regarding why more definitive information could not be provided.'”[6] Moreover, the court explained that the mitigation measures in the EA were inadequate to compensate for the adverse effects of the logging because they were merely best management practices, suggesting that such practices do not constitute a “hard look” under NEPA.

In defense, the Forest Service argued that an EIS for the Big Tower project was unnecessary because the EA “tiered” to the Umatilla Land Resource and Management Plan (Umatilla Forest Plan). Although NEPA allows tiering of a more specific document to a general programmatic document in order to avoid repetitive documentation,[7] the court noted that the scope of the Umatilla Forest Plan did not deal with the site-specific impacts of timber harvest on the severely burned land within the Big Tower project area. Consequently, the Service could not tier the Big Tower EA to the Umatilla Forest Plan.

Finally, the court addressed the appellants’ claim that the EA was inadequate because it did not address the cumulative impacts of the Big Tower project in combination with other timber sales in the vicinity. The Ninth Circuit agreed. It stated that although the USFS prepared a Tower Fire recovery strategy document (which identified five timber sales) as well as the Big Tower EA, “no document explores the collective impact of these projects.”[8] Since the Service proposed the five projects at the same time and the projects were all similar in nature and scope, a “single EIS . . . was required to address the cumulative effects of these proposed sales.”[9]

In dicta, the court also noted that the appellants’ claims were not moot, even though a majority of the timber had already been harvested from the Big Tower project. Rather, relief was still possible because “trees remain standing in the Big Tower area and the Forest Service had not yet acted on its remaining proposed sales in the Tower Fire area.”[10] The court therefore affirmed its injunction against further logging in the area.


[1] For further discussion of Blue Mountains Biodiversity Project v. Blackwood, see Susan Jane M. Brown, Striking the Balance: The Tale of Eight Ninth Circuit Timber Sale Cases, 29 Envtl. L. __ (1999).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994 & Supp. III 1997).

[3] 40 C.F.R. § 1508.27(b)(4)-(5) (1998).

[4] Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998), cert. denied, 119 S. Ct. 2337 (1999).

[5] Id.

[6] Id. (quoting Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)).

[7] 40 C.F.R. § 1508.28 (1998).

[8] 161 F.3d at 1215.

[9] Id.

[10] Id.

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