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Swanson v. United States Forest Service



John Swanson, the Idaho Sportsmen’s Coalition (ISC), and several environmental organizations brought suit challenging the United States Forest Service’s decision to authorize timber sales and concurrent road construction in the Cove and Mallard drainages of the Nez Perce National Forest in Idaho County, Idaho. ISC alleged that the Forest Service violated the National Environmental Policy Act (NEPA),[1] the National Forest Management Act (NFMA),[2] and the Clean Water Act (CWA)[3] in its formulation of these sales. When the district court dismissed the CWA claims and granted summary judgment in favor of the Forest Service on the remaining claims, ISC appealed. The Ninth Circuit affirmed the district court’s decision, indicating that the Forest Service took the requisite “hard look”[4] at the potential environmental impacts of these sales as required under NEPA.

Before authorizing the sales, the Forest Service prepared biological assessments (BAs) which considered the effects of logging on area species. The BAs included consideration of the Snake River chinook salmon, which was then considered a sensitive species. After the sales were awarded in September of 1991, however, the National Marine Fisheries Service (NMFS) determined that the Snake River chinook was in fact a threatened species and that they would be listed as such effective May 22, 1992. At this time, the Nez Perce forest supervisor ordered an additional analysis of logging activities within the forest which could impact salmon habitat and NMFS ordered all national forests affected by the listing to reformat their BAs. The Forest Service complied, concluding that the Cove and Mallard sales would not jeopardize survival of the Snake River chinook.

ISC’s complaint alleged specifically that the Forest Service’s studies were deficient with respect to informational inaccuracies, inadequate monitoring of animal populations, limited biological diversity analyses, and noncompliance with state water quality standards. The district court dismissed the water quality claim because of ISC’s failure to give notice to the Environmental Protection Agency (EPA) of their intent to sue as required by the CWA. In the alternative, ISC argued that the water quality claim was brought pursuant to the Administrative Procedures Act (APA) which does not require notice to EPA. Because they did not so indicate in their brief, however, the court dismissed that claim as well and entered summary judgment against ISC on the remaining claims.

On appeal, the Ninth Circuit reviewed the grant of summary judgment de novo to determine if the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” as required by the APA.[5] Concerning the NEPA claims, the court reiterated NEPA’s procedural premise, stating that it requires neither that the agency take action to mitigate environmentally detrimental actions nor that an EIS include explanations of prospective agency mitigation measures. The court deemed the Forest Service’s analysis procedurally sufficient under NEPA.

ISC also maintained that the listing of the Snake River chinook as threatened constitutes a “new circumstance” which requires a Supplementary Environmental Impact Statement under NEPA.[6] The court dismissed this argument summarily; in its estimation, the new listing changed “the legal status of the salmon, but it did not change the biological status.”[7]

As for the NFMA claims of deficient monitoring of area species, the court indicated that the prepared Forest Plan contained adequate analyses. The court found that the Plan required elk summer habitat analyses, watershed monitoring, threatened and endangered species surveys, fish and water quality monitoring as well as the observation of fish habitat trends, population trends of fish and wildlife species, and analyses of impacts of proposed activities on soil and water quality. In a decision that was perhaps strengthened by the court’s displeasure with ISC’s late filing of a motion to amend and its attempt to file an overlength brief, the Ninth Circuit upheld the Forest Service’s actions with customary deference to the agency.

[1]42 U.S.C. §§ 4321-4370c (1994).

[2]90 Stat. 2949, 2952, 2958; 36 C.F.R. § 219 (1996).

[3]33 U.S.C. § 1365(b) (1994).

[4]Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989).

[5] 5 U.S.C. § 706(2)(a) (1994).

[6]40 C.F.R. § 1502.9(c)(1)(ii) (1996).

[7] Swanson, 87 F.3d at 344, quoting, Forest Conservation Council v. Espy, 835 F. Supp 1202, 1216 (D. Idaho 1993), aff’d, 42 F.3d 1399 (9th Cir. 1994).

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