Summary of a Recent
Judicial Development in
Environmental Law

Illegal "Tiering" of Documents into U.S. Forest Service
Environmental Impact Statements

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Alliance for Wild Rockies v. Kimbell, 310 Fed. App'x 106, 2009 WL 141376 (9th Cir. 2009), the Ninth Circuit Court of Appeals held that the U.S. Forest Service had not violated the National Environmental Policy Act (NEPA) in approving a site-specific project in a national forest because it had not illegally "tiered" or incorporated documents into its environmental impact statement.

Background

Plaintiffs challenged the U.S. Forest Service's approval of a site-specific project in the Helena National Forest. Id. at *1.

Arguments

Plaintiffs argued that the project was inconsistent with the underlying forest plan's requirement to maintain five percent old-growth habitat and that the use of habitat monitoring of management indicator species was not a sufficient method of monitoring species viability. Id. They also argued that the proposed sale of timber was arbitrary and capricious because the Forest Service had not verified its effect on old-growth habitat, that the Forest Service had failed to consider the best available science in reaching its decision, and that the Forest Service had failed to publish an internal document, a draft of a five-year review of operations in the national forest. Id. at *1-2. Lastly, they argued that the Forest Service's Environmental Impact Statement (EIS) "tiered" to an internal document which had not undergone the usual public notice and comment procedures required by NEPA. Id. at *2.

Analysis and Holdings

In rejecting all of the plaintiffs' challenges, the court found sufficient evidence that the project would not eliminate old-growth habitat, and it held that monitoring indicator species was a sufficient method of monitoring species viability because "monitoring difficulties do not render a habitat-based analysis unreasonable, so long as the analysis uses all the scientific data currently available." Id. at *1. The court also noted that NEPA does not require publication of internal review documents, and refused to consider the plaintiffs' "best available science" challenge because it had not been raised previously. Id. at *2. Lastly, the court explained that "tiering to a document that has not itself been subject to NEPA review is not permitted," but the Council on Environmental Quality permits "agencies to incorporate by reference certain materials to cut down on the bulk of an EIS." Id. Because there was no evidence that the EIS relied on the internal document in question, the court held that the Forest Service had not engaged in illegal "tiering" and thus dismissed the plaintiffs' appeals. Id.

The case was decided on January 21, 2009.