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Neighbors of Cuddy Mountain v. United States Forest Service

 

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This suit arose out of a decision by the United States Forest Service (USFS or Service) to offer for harvest the Grade/Dukes Timber Sale in the Payette National Forest in Idaho. In 1990, USFS prepared an environmental impact statement (EIS) for the Grade/Dukes timber sale, which would harvest 18.8 million board feet (MMbf) of timber from the Cuddy Mountain Roadless Area in the Payette National Forest. The Forest Supervisor approved the sale on August 6, 1991 in a decision notice and finding of no significant impact (DN/FONSI). Environmental plaintiffs, Neighbors of Cuddy Mountain and Idaho Sporting Congress administratively appealed the sale to the Deputy Regional Forester, who reversed the decision of the Forest Supervisor and recommended that the EIS be supplemented with additional information.

In 1994, a supplemental environmental impact statement (SEIS) was prepared for the Grade/Dukes Timber Sale. A second DN/FONSI was issued for the sale in February 1994. Plaintiffs again administratively appealed the decision and were notified in February 1995 that their appeal to the Regional Forester had been denied. Meanwhile, USFS sold the Grade/Dukes timber contract to Boise Cascade, which began timber harvest in August 1994.

Plaintiffs brought an action in the Idaho district court in December 1996, alleging violations of the National Environmental Policy Act (NEPA)[2] and the National Forest Management Act (NFMA).[3] The district court allowed Boise Cascade to intervene as a matter of right as the purchaser of the timber sale, and both the plaintiffs and the defendants (USFS and Boise Cascade) moved for summary judgement. The district court granted the motion in favor of the USFS and intervenor, and the plaintiffs appealed.

On appeal, the appellants alleged that USFS had violated NFMA when it 1) prepared a timber sale that was inconsistent with the Payette Land and Resource Management Plan (PLRMP), 2) issued an EIS that inadequately addressed the cumulative affect of several other timber sales near the Grade/Dukes area, and 3) proposed inadequate mitigation measures to compensate for adverse environmental impacts as a result of the timber sale. USFS claimed in defense that the doctrine of laches barred appellants’ cause of action.

First, the court addressed the appellants’ claim that USFS violated NFMA when the agency prepared the EIS for the Grade/Dukes timber sale because the sale was inconsistent with the PLRMP. Specifically, the appellants claimed that the Grade/Dukes EIS violated NFMA’s requirement that site-specific plans (such as the EIS) remain consistent with area forest plans (such as the PLRMP)[4] because the EIS did not allow for the retention of the amount of old growth habitat mandated by the PLRMP. As required by NFMA, USFS selected a group of management indicator species (MIS) that used old growth habitat. In this case, the MIS at issue was the pileated woodpecker. Ideally, by tracking the amount of old growth habitat remaining in the area, USFS could monitor the population of the woodpecker.

In holding that the Grade/Dukes sale was inconsistent with the PLRMP, the appellate court explained that USFS failed to analyze the sale’s impacts on the woodpecker’s habitat as required by the PLRMP. Although the EIS addressed how much old growth would be left in the planning area after timber harvest, it did not address how much old growth would be left in the home range of the woodpecker; the court noted that these two areas were quite different both in theory and in practice.

Second, the court explained that USFS’s inadequate analysis of the effects of the sale on woodpecker habitat contributed to the court’s finding that USFS’s cumulative impacts analysis was likewise inadequate. Plaintiffs alleged that the Grade/Dukes EIS was incomplete because it failed to consider the cumulative impacts from three other timber sales in the Cuddy Mountain area, as NEPA’s regulations require.[5] The Grade/Dukes EIS only stated that future timber harvest could be expected to reduce the amount of woodpecker habitat, but that the extent of that habitat loss was unknown; it did not make specific reference to the three sales already planned in the vicinity of the Grade/Dukes sale. In pointing out this flaw, the court noted that the Service did not include scientific data that showed that it had taken a “hard look” at the issue as required by NEPA’s regulations[6] and then explained that postponing such an analysis to some indefinite point in the future was improper.

Third, the court turned to appellants’ argument that the mitigation measures proposed by USFS for the Grade/Dukes sale were insufficient and therefore in violation of NEPA. The appellants were especially concerned about the mitigation measures proposed to obviate the effects on redband trout, another MIS. In agreeing with the appellants that the mitigation measures were inadequate to compensate for the effects of the sale, the court explained that the EIS contained only a “perfunctory description” of the mitigating measures and that was inconsistent with the hard look standard required by NEPA.[7] Furthermore, the court noted that because the measures in the EIS were not site-specific, it was unclear whether they were required under the timber sale contract. Moreover, there was no indication that if implemented the measures would be effective.

Finally, the court turned to the argument by the Service that appellants’ cause of action was barred by the equitable doctrine of laches. The court pointed out that this doctrine is to be used only “sparingly in environmental cases because the plaintiff is not the only party to suffer harm by alleged environmental damage,” and this case was not one of the rare instances where the doctrine was an appropriate defense.[8] Ultimately, regardless of whether the plaintiffs had been diligent in bringing the present case, USFS failed to show prejudice in the delay or the proper kind of harm (i.e., economic harm) that is usually incurred when the defense of laches is raised. Indeed, supplementing the EIS after the present case would not prejudice the USFS, because it should have conducted such an analysis before the EIS was prepared.


[1] For further discussion of Neighbors of Cuddy Mountain v. United States Forest Service, 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] National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614 (1994 & Supp. III 1997) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[4] Id. § 1604(i) (1994); 36 C.F.R. § 219.10(e) (1998).

[5] See 40 C.F.R. § 1508.7 (1998).

[6] See id. § 1502.24.

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

[8] Id. at 1381.

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