Case Law Updates on the Environment (CLUE)
Case Law Update Details
League of Wilderness Defenders Blue Mountain Biodiversity Project v. Allen
U.S. Court of Appeals - 9th Circuit
Five Buttes Project
This project involves logging and other forest management activities in a protected area within the Deschutes National Forest. As part of the forest's management plan, the U.S. Forest Service had designated "late successional reserves" (LSRs) to be managed as conservation areas. In one of the reserves, known as the Davis LSR, wildfires occurred frequently, including one wildfire that burned 24% of the LSR. To reduce the wildfire risk, the Forest Service proposed the Five Buttes Project, which included logging to thin the trees in the LSR. The Forest Service prepared an EIS for the project and then issued a ROD approving the project in June 2007.
The plaintiffs filed suit challenging the Forest Service's ROD for the Five Buttes project, based in part on alleged violations of NEPA. They claimed that the EIS was inadequate in two areas (1) cumulative impacts analysis and (2) response to opposing views on the impact of thinning larger trees. The U.S. District Court ruled in favor of the plaintiffs, but the U.S. Court of Appeals reversed that decision, finding that the Forest Service had complied with NEPA.
Cumulative Impacts - Consideration of Past Projects. The U.S. District Court held that the cumulative impacts analysis was inadequate because it did not contain a detailed analysis of the impacts of past projects. This holding was based in part on a previous decision of the U.S. Court of Appeals for the 9th Circuit, issued in 2005, in which the 9th Circuit held that a NEPA analysis was inadequate because it did not provide “adequate data of the time, type, place, and scale of past timber harvests.” After that decision was issued, the CEQ issued guidance stating that the impacts of "past actions" could be considered in the aggregate, rather than be considered individually, as part of a cumulative impacts analysis. The Forest Service explicitly relied on that CEQ guidance in this case, as justification for addressing past actions on an aggregate basis in the cumulative impacts analysis. The 9th Circuit reversed the District Court and upheld the Forest Service's approach:
- "The aggregate effects approach is not, as the district court held, 'in contradiction to current Ninth Circuit law.' .... The EIS's cumulative impact analysis was consistent with the CEQ guidelines and adequately considered cumulative effects of past, present, and reasonably foreseeable future projects in compliance with NEPA."
Cumulative Impacts - Level of Detail. In addition to challenging the consideration of past actions, the plaintiffs also challenged the level of detail of the cumulative impacts analysis as a whole. The court held that the cumulative impacts analysis was sufficiently detailed, based in part on the length of this section of the EIS.
- "The Conservation Groups assert that ... the table [in the EIS] does not contain enough detailed information about cumulative impact. However, this ignores the lengthy discussion of cumulative impact that follows in the EIS. With regard to the spotted owl, the EIS contains a thorough twenty-three-page discussion of previous declines, trends, and threats to the spotted owl population and habitat. It discusses each of the activities listed in the table to 'assess whether, in combination with the Five Buttes Project, there would be overlap of time and space.' The EIS then describes possible overlapping effects from other projects and natural disasters such as wildfires, mushroom harvesting, and planned vegetation projects, and conducts a similar analysis with regard to soil quality, fires, fuels, and other species. This analysis fully complies with the requirement that the EIS consider aggregate effects of past, present, and future actions, and the Conservation Groups have not pointed to any past action or effect that was not considered. In fact, the inclusion of additional, unnecessary data in the EIS would run contrary to the purpose of NEPA, as 'NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.' 40 C.F.R. § 1500.1(b)."
Consideration of Opposing Views. The plaintiffs also argued that the EIS failed to give adequate consideration to opposing scientific views regarding the benefits of forest-thinning as a method of reducing wildfire risks. The court rejected this argument as well, finding that the Forest Service had met its obligation to respond to opposing views.
- "Significantly, the Forest Service is only required to 'acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist.'"
- "Here, the Conservation Groups incorrectly claim that the Forest Service failed to consider the view that priority should be given to cutting smaller trees. In fact, the Forest Service subscribes to that view, and the majority of tree removal is aimed at smaller trees.... The EIS also explains that cutting small trees alone is not sufficient because 'reduction of the smaller size classes, in general, does not contribute to reduction of crown bulk density,' which is important in preventing crown fires. The Forest Service also concluded that the removal of larger trees is required to reduce susceptibility to insect infestation and disease. In the EIS and ROD, the Forest Service addressed each of the Conservation Groups' suggestions and concerns, even conducting additional modeling to determine if thinning only smaller trees might be feasible."
- "We also note that the REO [Regional Ecosystem Office of the Forest Service] and the FWS conducted extensive independent reviews of the Project and found it to be consistent with NEPA.... We hold that the Forest Service adequately considered and responded to alternative views about the Project's potential environmental consequences."