Home » Case Summaries » 2015 » Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105 (9th Cir. 2015)

 
 

Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105 (9th Cir. 2015)

 

In this case, several environmental groups[1] (collectively, Cascadia) challenged the Bureau of Indian Affairs’ (BIA) approval of a timber sale (the Kokwel Project) in Oregon’s Coquille Forest to the Coquille Indian Tribe (the Tribe).[2] The BIA holds and manages the Coquille Forest in trust for the Tribe. Cascadia alleged that the timber sale violated the National Environmental Policy Act (NEPA)[3] because the BIA failed to analyze the sale’s cumulative environmental impacts in light of a previously approved timber sale on adjacent and overlapping land. In addition, Cascadia alleged that the sale violated the Coquille Restoration Act (CRA)[4] because the terms of the sale failed to comply with the United States Fish and Wildlife Services’ (FWS) Recovery Plan for the northern spotted owl. The district court granted summary judgment to the BIA. The Ninth Circuit affirmed, holding that 1) the BIA adequately examined the cumulative environmental impacts of the sale and thus did not violate NEPA, and 2) the BIA did not violate the CRA because the CRA did not oblige compliance with the Recovery Plan for the northern spotted owl.

The Ninth Circuit first addressed Cascadia’s NEPA claim. Cascadia argued that the BIA inadequately considered the Kokwel Project’s cumulative impacts when preparing the Environmental Analysis (EA) required by NEPA.[5] As a result, the BIA’s Finding of No Significant Impact, and its subsequent decision not to prepare an Environmental Impact Statement (EIS), violated NEPA. The Ninth Circuit explained that courts should take a “hard look” at an agency’s decision not to prepare an EIS to ensure that the agency provides a convincing explanation for that decision.[6] The agency must demonstrate that the proposed project will not have significant environmental impacts, either individually or cumulatively in light of other “past, present, or reasonably foreseeable future actions.”[7] Ninth Circuit precedent established that agencies are permitted to aggregate the impacts of past actions into a “baseline,” and then calculate the additional impact of the project under consideration beyond that baseline to determine the cumulative impact.[8] Cascadia maintained that the BIA impermissibly calculated its baseline for the Kokwel Project because the baseline included the impacts of an adjacent timber sale, the Alder/Rasler Project, which was a “reasonably foreseeable future action” rather than a “past” action.

The Ninth Circuit found that the BIA complied with NEPA because it properly calculated the Kokwel Project’s baseline. The court agreed that the Alder/Rasler Project was not a past action, but disagreed that its inclusion in the baseline was invalid. The court explained that agencies had significant discretion in how they present evidence of environmental impacts in an EA. The court then noted that the BIA had used data from the Alder/Rasler Project EA when calculating the baseline, and that the Kokwel Project EA made clear how the baseline was calculated. Finally, the court found that the BIA adequately aggregated the Alder/Rasler Project’s impacts in the Kokwel Project EA because, although the Kokwel Project EA did not expressly reference the impacts of the Alder/Rasler Project in each impact calculation, the EA identified the Alder/Rasler Project as part of the cumulative impact baseline at the outset. The Ninth Circuit concluded that the BIA complied with NEPA because the BIA reasonably explained how it reached its decision not to prepare an EIS for the Kokwel Project.

The Ninth Circuit then addressed Cascadia’s CRA claim. Cascadia argued that the Kokwel Project violated the CRA, which requires that the Coquille Forest be managed “subject to the standards and guidelines of Federal Forest plans on adjacent or nearby Federal lands.”[9] The Coos Bay District Resource Management Plan,[10] one of several federal forest plans covering the Coquille Forest, includes as an “objective” the recovery of endangered species in compliance with Recovery Plans developed by FWS under the Endangered Species Act.[11] Cascadia claimed that this objective should be seen as a “standard and guideline” under the CRA. Cascadia then argued that the FWS had developed a Recovery Plan for the northern spotted owl that included the Coquille Forest, and that the Kokwel Project was inconsistent with that Recovery Plan. As a result, Cascadia asserted that the Kokwel Project failed to comply with the standards and guidelines of a relevant federal forest plan in violation of the CRA.[12]

The court rejected Cascadia’s argument for three reasons. First, the court reasoned that had Congress wanted the CRA to mandate compliance with the objectives of federal forest plans, it would have done so expressly. Second, the court pointed to the Northwest Forest Plan (NFP),[13] which also covers the Coquille Forest, and which expressly contains a series of standards and guidelines for actions within forests covered by that Plan. Since the NFP was developed two years before Congress passed the CRA, the court reasoned that Congress intended for the CRA to reference only those federal forest plans that specifically identified standards and guidelines. Third, the court found that the objectives in the Coos Bay Plan were too general to be standards and guidelines,” especially in light of the more concrete requirements labeled as standards and guidelines in the NFP. As a result, the Ninth Circuit concluded that the CRA did not mandate compliance with any objectives in the Coos Bay Plan, including compliance with the Recovery Plan for the northern spotted owl.

The Ninth Circuit ultimately affirmed the district court’s determinations and held that 1) the BIA complied with NEPA because the BIA had adequately considered the cumulative environmental impacts of the Kokwel Project, and 2) the BIA had not violated the CRA by failing to ensure that the Kokwel Project was consistent with the Recovery Plan for the northern spotted owl.

Footnotes    (↵ returns to text)

  1. Plaintiff-appellants included Cascadia Wildlands, Oregon Wild, and Umpqua Watersheds.
  2. The Bureau of Indian Affairs was the defendant-appellee, with the Coquille Indian Tribe as defendant-intervenor.
  3. 42 U.S.C. §§ 4321–4370h (2012).
  4. 25 U.S.C. §§ 715–715h (2012).
  5. See 42 U.S.C. § 4332(2)(C) (2012) (outlining five requirements for a detailed statement of the impacts from a Federal action).
  6. Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1111 (9th Cir. 2015).
  7. 40 C.F.R. § 1508.7 (2015).
  8. See Ecology Ctr. v. Castaneda, 574 F.3d 652, 666–67 (9th Cir. 2009) (noting that cumulative impacts analysis satisfied the “hard look” standard).
  9. 25 U.S.C. § 715c(d)(5) (2012).
  10. U.S. Bureau of Land Mgmt., U.S. Dep’t of the Interior, Coos Bay District Record of Decision and Resource Management Plan (1995), available at www.blm.gov/or/plans/files/Coos_Bay_RMP_1995.pdf.
  11. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  12. 25 U.S.C. § 715c(d)(5) (2012).
  13. U.S. Dep’t of Agric. & U.S. Dep’t of the Interior, Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl (1994), available at www.reo.gov/library/reports/newroda.pdf.
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