Summary of a Recent
Judicial Development in
Environmental Law

Forest Service Cannot Tier Its Cumulative Effects Analysis
to Its Watershed Analysis

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In League of Wilderness Defenders-Blue Mountain Diversity Group v. U.S. Forest Service, 549 F.3d 1211 (9th Cir. 2008), the United States Ninth Circuit Court of Appeals reversed and remanded the district court's ruling, which had granted the U.S. Forest Service's (USFS) motion for summary judgment. Two environmental organizations alleged that the USFS had violated the National Environmental Policy Act (NEPA) by moving forward with an extensive logging project without conducting necessary administrative procedures. Although the court deferred to the Council on Environmental Quality's (CEQ) memorandum and held that the Final Supplemental Environmental Impact Statement (FSEIS) adequately evaluated cumulative effects of past and present grazing, the court reversed the district court's ruling and held that the USFS could not tier the cumulative effects analysis to the watershed analysis.

Background

In 1993, the USFS initiated a Watershed Analysis of the Deep Creek watershed. Id. at 1214. Results from the analysis showed that "many of the tree stands were overly dense and susceptible to high-intensity wildfires and forest diseases; that some types of tree stands were over-represented as compared to historical conditions, while other types of stands were under-represented; and that riparian habitats along streams exhibited similar problems." Id. The analysis concluded that the USFS "should undertake a blend of management activities to alleviate and improve these unsatisfactory conditions." Id. In October 1999, the agency began processing the necessary NEPA documentation, and in April 2001, it published a draft Environmental Impact Statement (EIS). Id. It issued a final EIS in September 2001 after a public comment period and adjustments. Id. In response, the plaintiffs filed an administrative appeal; however, the USFS withdrew its Record of Decision (ROD) and dismissed the appeal as moot. Id.

One year later, the USFS issued another draft EIS and, after public comments, issued an FSEIS in January 2004. Id. In conjunction with the FSEIS, the USFS "issued another ROD and selected modified Alternative C." Id. After the second ROD was issued, the plaintiffs again filed an administrative appeal. Id. at 1215. When the USFS denied the appeal, the plaintiffs appealed to the district court. Id. The court granted the USFS's motion for summary judgment and dismissed the plaintiffs' action with prejudice. Id. In response, the plaintiffs timely filed the instant appeal. Id.

Arguments

The plaintiffs alleged that the USFS's "approval of the Project violated NEPA, NFMA, and the applicable Ochoco LRMP, and [sought] declaratory and injunctive relief." Id. Specifically, the plaintiffs argued that the USFS had "violated NEPA because the FSEIS fail[ed] to consider adequately the cumulative effects of the Project, as required by 40 C.F.R. § 1508.7." Id.

The USFS argued "that its responsibility [was] to consider cumulative effects in the aggregate rather than on an individual basis, and that the FSEIS contain[ed] a sufficient discussion of cumulative effects to satisfy the agency's duty under NEPA." Id. at 1216.

Analysis and Holdings

The Administrative Procedure Act (APA) provides the authority for a court to review federal agency decisions pursuant to NEPA and the NFMA; therefore, the plaintiffs' burden was to show that the USFS's decisions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at 1215 (citing 5 U.S.C. § 706(2)(A)). Under NEPA, "a federal agency that proposes a 'major Federal action[ ] significantly affecting the quality of the human environment' must prepare a detailed EIS on the proposed action, including an analysis of 'alternatives to the proposed action' and a discussion of the significant environmental impacts." Id. at 1216 (citing 42 U.S.C. § 4332(2)(C)). This requires the federal agency to examine the "cumulative impacts" of the proposed action. Id.

After examining the USFS's cumulative effects analysis, the court determined that it was insufficient, stating,

[T]he Forest Service may aggregate its cumulative effects analysis, and [] it properly did so with respect to grazing and future timber sales. However, we find the aggregated cumulative effects analysis of past timber sales deficient because the Forest Service failed to include the relevant inputs in the FSEIS itself.
Id.

Rather than include the relevant inputs in the FSEIS, the USFS tiered the "omitted information about the past timber sales" in its Watershed Analysis. Id. at 1219. However, the court held that the USFS could not "'tier' to the Watershed Analysis to analyze sufficiently the cumulative effects of the Project," because the Analysis was a "non-NEPA document that the FSEIS fail[ed] to include." Id. For this reason, the court reversed the district court's decision in favor of the USFS, and remanded the case so that the USFS could "reissue its NEPA documentation to include the omitted, but clearly relevant, information regarding past timber sales contained in the Watershed Analysis." Id.

The case was decided on December 11, 2008.