LEGAL CITATIONS
National Environmental Policy Act Violations Furthermore, it is well settled that a NEPA document must provide the decision-maker with adequate information to fully assess the impacts of an action. "If the decision was reached procedurally, without individualized consideration and balancing of environmental factors -- conducted fully and in good faith -- it is the responsibility of the courts to reverse. Calvert Cliffs' Coordinating Committee v. U.S. Atomic Energy Commission, 449 F.2d 1109, 1115 (D.C. Cir. 1971); 42 U.S.C. Section 4332 (1976).
"(G)rudging pro forma compliance [with NEPA] will not do." Lathan v. Brinegar 506 F.2d 677, 693 (9th Cir. 1974). NEPA contemplates a decision process based on all the relevant factors. And "the courts can, and should, require full, fair, bona fide compliance with NEPA." Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974).
"An agency must set forth a reasoned explanation for its decision and cannot simply assert that its decision will have an insignificant effect on the environment." Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986).
Under NEPA, an environmental impact statement must contain a discussion of "alternatives to the proposed action." 42 U.S.C. 4332(2)(D). As interpreted by binding regulations of the CEQ, an environmental impact statement must “(r)igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. 1502.14(a). The importance of this mandate cannot be downplayed; under NEPA, a rigorous review of alternatives is "the heart of the environmental impact statement." 40 C.F.R. 1502.14.
"For some proposals there may exist a very large or even an infinite number of possible reasonable alternatives. For example, a proposal to designate wilderness areas within a National Forest. could be said to involve an infinite number of alternatives from 0 to 100 percent of the forest. When there are potentially a very large number of alternatives, only a reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and compared in the EIS. An appropriate series of alternatives might include dedicating 0, 10, 30, 50, 70, 90 or 100 percent of the Forest to Wilderness.” CEQ, Forty Most Asked Questions Concerning CEQ’s NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981) (emphasis in original).
The courts have insisted that agencies carry out this mandate. In this regard, the courts have said, "Consideration of alternatives which lead to similar results is not sufficient under NEPA... State of California. v. Block., 690 F. 2d 753 (9th Ci.r. 1982) (all alternatives would not designate 2/3 of RARE II lands as Wilderness). See also Citizens for Environmental Quality v. Lyng, 731 F.Supp. 970, 989 (D. Colo. 1989). (Forest plan alternatives inadequate because all involved high levels of unprofitable timber cuts.)
"An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable." CEQ, Forty Most Asked Questions Concerning CEQ’s NEPA Regulations 46 Fed. Reg. 18026, 18027 (March 23, 1981).
“Q. If an EIS is prepared in connection with an application for a permit or other federal approvals must the EIS rigorously analyze and discuss alternatives that are outside the capability of the applicant...? .... A. .... Reasonable alternatives include those that are practical or feasible from a technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant." CEQ, Forty Most Asked Ouestions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18027 (March 23, 1981) (emphasis in original).
"NEPA requires that federal agencies consider alternatives to recommended actions whenever those actions "involve[] unresolved conflicts among alternative uses of available resources." 42 U.S.C. 4332(2)(E) (1982')..... (C)onsideration of alternatives is critical to the goals of NEPA even where a proposed action does not trigger the EIS process. This is reflected in the structure of the statute: while an EIS must also include alternatives to the proposed action, 42 U.S.C. 4332 (2) (C) (iii) (1982), the consideration of alternatives requirement is contained in a separate subsection of the statute and therefore constitutes an independent requirement. See id. 4332(2)(E). The language and effect of the two subsections also indicate that the consideration of alternatives requirement is of wider scope than the EIS requirement. The former applies whenever an action involves conflicts, while the latter does not come into play unless the action will.have significant environmental effect. An EIS is required where there has been an irretrievable commitment of resources, but unresolved conflicts as to the proper use of available resources may exist well before that point. Thus the consideration of alternatives requirement is both independent of, and broader than, the EIS requirement.” Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988).
“Agencies may not evade their responsibilities under NEPA by artificially dividing a major federal action into smaller components, each without “significant” impact.” Coalition on Sensible Transportation, Inc. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987).
n “Reliance on stale scientific evidence is sufficient to require re-examination of an EIS.” City of Carmbel-By-The-Sea v. U.S. Department of Transportation, 95 F.2d 892, 900 (9th Cir. 1996).
NEPA is quite specific in requiring agencies to consider the cumulative effects of each alternative under consideration (40 CFR 1502.16, 1508.8, and 1508.25(a)(2) and (c)). This direction is further specified in the Forest Service Handbook (FSH, Chapter 24). Cumulative effects refers to the direct and indirect impacts of all past, present and reasonably foreseeable future actions. All environmental assessments are required by NEPA to document and analyze cumulative impacts. (See generally Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988).)
NEPA requires preparation of an EIS if there is reason to believe that the cumulative impacts of the ____ timber sale, together with other related projects, may be significant. See Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985) (a single EIS is required to account for actions which individually have a significant environmental impact, but which collectively have a substantial impact). In deciding whether to prepare an EIS, the agency must determine: "Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts." 40 C.F.R. 1508.27(b)(7).
"Cumulative impact" is: "the impact on.the environment which results from the incremental impact of the action when added to other past, present, and reasonable foreseeable future action regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. 1508.7.
In deciding whether an EIS is required, the Forest Service must consider impacts from actions that are not yet proposals and that are not yet themselves subject to the requirements of NEPA. Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir. 1985).
"NEPA may require a comprehensive impact statement in certain situations where several proposed actions are pending at the same time.... Thus, when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action." Kleppe v. Sierra Club, 427 U.S. 390, 409-410 (1976). See also City of Tenakee Springs v. Clough, 915 F.2d 1308 (9th Cir. 1990).
Accord United States v. 27.09 Acres of Land, 760 F.Supp. 345 (S.D.N.Y. 1991) (Finding of No Significant Impact for condemnation action for construction of postal facility inadequate when EA fails to consider cumulative impacts of. project and concurrent development on water quality). From "Connected Actions and Cumulative Synergistic Impacts under NEPA” by William M. Cohen
(c) When preparing statements on broad actions (including proposals by more than one agency) agencies may find it useful to evaluate the proposal(s) in one of the following ways:
"Cumulative impact' is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-Federal) or person undertakes such actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over time.
Actions are connected if they:
Id. at 410
At some points in their brief respondents appear to seek a comprehensive impact statement covering contemplated projects in the region as well as those that have already been proposed. The statute, however, speaks solely in terms of proposed actions; it does require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects.
Id at 410, n. 20.
As for the alleged "environmental" relationship, respondents contend that the coal-related projects "will produce a wide variety of cumulative environmental impacts" throughout the Great Plains region. They describe them as follows: Diminished availability of water, air and water pollution, increase in population and industrial densities, and perhaps even climatic changes. Cumulative environmental impacts are, indeed, what require a comprehensive impact statement. But determination af the extent and effect of these factors, and particularly identification of the geographic area within where they may occur, is a task assigned to the special competency of the appropriate agencies. Petitioners dispute respondents' contentions that the interrelationship of environmental impacts is regionwide and, as respondents' own submission indicate, petitioners appear to have determined that the appropriate scope of comprehensive statements should be based on basins, drainage areas, and other factors. Even if environmental interrelationships could be shown conclusively to extend across basins and drainage areas, practical considerations of feasibility might well necessitate restricting the scope of comprehensive statements. (Footnote omitted.)
Id at 297.
CEQ regulations specifically provide that an EIS should consider together actions that "are interdependent parts of a larger action and depend on the larger action for their justification," “[c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts," and "similar actions, which when viewed with other proposed actions have cumulatively significant impacts," and "similar actions, when viewed with other reasonably forseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing and geography."40. C.F.R. Sec, 1508.25(a) (1987); see also Council on Environmental Quality, Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18,033 (1981). Those regulations also specify that an EIS should consider any cumulative impacts of agency action.
Id. at 758
The construction of the road and the sale of the timber in the Jersey Jack area meet the second and third, as well as perhaps the first of [the CEQ] criteria [for "connected actions."]. It is clear that the timber sales cannot proceed without the road, and the road would not be built but for the contemplated, timber sales... [T]he road construction and the contemplated timber sales are inextricably intertwined, and [are]. "connected actions" within the meaning of the CEQ regulations.,
Id. at 759
We believe that consideration of cumulative impacts after the road has already been approved is insufficient to fulfill the mandate of NEPA. A central purpose of an EIS is to force the consideration.of environmental impacts in the decisionmaking process. That purpose requires that the NEPA process be integrated with agency planning "at the earliest possible time." 40 C.F.R. 1501.2, and the purpose cannot be fully served if consideration of the cumulative effects of successive, interdependent steps, is delayed until the first step has already been taken.
"The preparation of an area-wide or overview EIS may be particularly useful when similar actions, viewed with other reasonably foreseeable or proposed agency actions, share common timing or geography.... This impact statement would be followed by site-specific or project-specific EISs.” CEQ, Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18033 (March 23, 1981).
"Significant", "effects", and "human environment" are all defined in detail by the Council on Environmental Quality regulations implementing NEPA. 40 C.F.R. 1508.27, 1508.8, 1508.14. In particular, "effects" include indirect effects, "related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." 40 C.F.R., 1508(b). In addition, effects include: "ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative."
"The subject of post-decision supplemental environmental impact statements is not expressly addressed in NEPA. Preparation of such statements, however, is at times necessary to satisfy the Act’s "action-forcing" purpose." Marsh v. Oregon Natural Resources Counci.1, 490 U.S. 360, 370-71 (1989).
"If there remains "major Federal actio(n)" to occur, and if the new information is sufficient to show that the remaining action will "affec(t) the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989).
"As a rule of thumb, if the proposal has not yet been implemented or concerns an ongoing program, EISs that are more than 5 years old should be carefully reexamined to determine if the criteria in Section 1502.9 compel preparation of an EIS supplement." CEQ, Forty Most Asked Questions Concerning CEQ,' s NEPA Regulations, 46 Fed. Reg. 18026, 18036 (March 23, 1981).
"A cooperating agency with jurisdiction by law (e.g. an agency with independent legal responsibilities with respect to the proposal) has an independent legal obligation to comply with NEPA. Therefore, if the cooperating agency determines that the EIS is wrong or inadequate, it must prepare a supplement to the EIS, replacing or adding any needed information, and must circulate the supplement or a draft for public and agency review and comment." CEQ, Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18035 (March 23, 1981).
"NEPA requires an agency to evaluate the environmental effects of its action at the point of commitment... The EIS is a decisionmaking tool intended to "insure that... environmental amenities and values may be given appropriate consideration in decisionmaking.... ... Therefore, the appropriate time for preparing an EIS is prior to a decision when the decisionmaker retains a maximum range of options.” Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C.Cir. 1983) (emphasis in original).
"The National Environmental Policy Act requires federal agencies to evaluate the environmental consequences of their actions prior to commitment to any actions which might affect the quality of the human environment. If anv "significant" environmental impacts might result from the proposed agency action then an EIS must be prepared before the action is taken." Sierra Club v. Peterson, 717 F .2d 1409, 1415 (D.C.Cir. 1983) (emphasis in original).
"NEPA expresses a Congressional determination that procrastination on environmental concerns is no longer acceptable.... "(A)n agency decision to act now and deal with the environmental consequences later ... is plainly inconsistent with the broad mandate of NEPA.” Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 1181 Cir. 1982).
40 CFR Sec. 1500.1(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.
"The purpose of the procedures promulgated under NEPA is to ensure that environmental information is available on an agency's proposed actions before the decision is made to take the action. Public participation is integral to the dual goals of NEPA, providing information to agency decision makers and facilitating public involvement in agency decision making." Friends of Walker Creek Wetlands Inc. v. Bureau of Land Mgnagement, 19 ELR 20852, 20854 (D.Ore. 1988).
"Agencies shall... (m)ake diligent efforts to involve the public in preparing and implementing their NEPA procedures ... (and) (p)rovide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected." 40 C.F.R. 1506.6.
Accord Mullin v. Skinner, 756 F.Supp. 904 (E.D.N.C. 1990) (Finding of No Significant Impact was arbitrary and capricious where EA on bridge-replacement project failed to consider indirect, growth-inducing effects).
"The EIS must identify all the indirect effects that are known, and make a good faith effort to explain the effects that are not known but are "reasonably foreseeable."... In the example (of a proposed land trade), if there is total uncertainty about the identity of future land owners or the nature of future land uses, then of course, the agency is not required to engage in speculation or contemplation about their future plans. But, in the ordinary course of business, people do make judgments based upon reasonably foreseeable occurrences. It will often be possible to consider the likely purchasers and the development trends in that area or, similar areas in recent years; or the likelihood that the land will be used for an energy project, shopping center, subdivision, farm, or factory. The agency has the responsibility to make an informed judgment, and to estimate future impacts on that basis, especially if trends are ascertainable or potential purchasers have made themselves known. The agency cannot ignore these uncertain, but probable, effects of its decision." CEQ, Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46 Fed. Reg. 18026, 18031 (March 23, 1981).
NEPA regulations do not automatically require an agency to prepare a cost-benefit analysis as a part of an impact statement. If an agency does prepare such an analysis, however, the impact statement "shall... discuss the relationship between that (cost/benefit) analysis and any analyses of unquantified environmental impacts, values, and amenities." 40 C.F.R. 1502.23.
Moreover, “(i)f an alternative mode of EIS evaluation is insufficiently detailed to aid the decision-makers in deciding whether to proceed, or to provide the information the public needs to evaluate the project effectively, then the absence of a numerically expressed cost-benefit analysis may be fatal.” Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 594 (9th Cir. 1981).
To assure that a “fair discussion" occurs, agencies are required to obtain "high quality" information, including “(a)ccurate scientific analysis." 40 C.F.R. 1500.1(b). The regulations are very explicit that: "Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements." 40 C.F.R. 1502.24.
CEQ regulations also require that: "Environmental impact statements shall serve as the means of assessing the environmental impact of proposed agency action, rather than justifying decisions already made." 40 C.F.R. 1502.2(g) (emphasis added).
The National Environmental Policy Act is our basic national charter for protection of the environment. It establishes policy, sets goals (section 101), and provides means (section 102), for carrying out the policy. Section 102(2) contains "action forcing" provisions to make sure federal agencies act according to the letter and spirit of the Act.
"The purpose of NEPA is to assure that federal agencies are fully aware of the present and future environmental impact of their decisions. Additionally, the preparation of an EIS ensures that other officials, Congress, and the public can evaluate the environmental consequences independently." Columbia Basin Land Protection Ass'n v. Schlesinger, 643 F.2d 585, 592 (9th Cir. 1981).
The Forest Service Handbook, chapter 20, section 23.2 states that the purpose and intent of alternatives are to "ensure that the, range of alternatives does not foreclose prematurely any option that might protect, restore and enhance the environment." NEPA regulations (40 C.F.R. 1502.14) require that agencies should “(r)igorously explore and objectively evaluate all reasonable alternatives ... ". Similarly, recent case law has established that consideration of alternatives which lead to similar results is not sufficient to meet the intent of NEPA. Citizens for Environmental Quality v. United States, 731 F. Supp. 970, 989 (D.Colo. 1989); State of California v. Block, 690 F.2d 753 (9th Cir. 1982).
A “meaningful” analysis of cumulative impacts “should identify (1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in the area from the proposed project; (3) other actions - past, proposed, and reasonably foreseeable - that have had or are expected to have impacts on the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.” City of Carmbel-By-The-Sea v. U.S. Department of Transportation, 95 F.2d 892, 902 (9th Cir. 1996).
NEPA, as interpreted by the courts, and CEQ regulations both require agencies to consider the cumulative impacts of proposed actions.
NEPA requires that a federal agenct examine not only the impact directly attributable to one project, but also the cumulative effects of that project. Cumulative effects are defined to be the impact on the environment which results "from the incremental impact of the action when added to other past, present, or reasonably foreseeable future actions regardless of what agency (federal-or non-federal) or person undertakes such actions." 40 C.F.R. 1508.7. Cumulative effects can be both direct and indirect.
Section 102(2)(c) of NEPA requires an EIS for "major federal actions significantly affecting the quality of the human environment." 42USC 4332 (2)(C) (1982). While it is true that the administrative agencies must be given considerable discretion in defining the scope of the environmental impact statements there are situations in which the agency is required to consider several related actions in a single EIS. Not to require this would permit dividing a project into multiple "actions", each of which individually has an insignificant environmental impact, but which collectively have a substantial impact. [Citations omitted.]
"Where there are large-scale plans for regional development, NEPA requires both a programmatic and a site-specific EIS.... Although the agency does have discretion to define the scope of its actions, ... such discretion does not allow the agency to determine the specificity required by NEPA." City of Tenakee Springs v. Block, 788 F.2d 1402, 1407 (9th Cir. 1985). In other words, a single EIS on multiple projects does not reduce the agency’s obligation to fully.disclose the environmental consequences of the individual projects.
NEPA requires the preparation of an EIS if substantial questions are raised whether the proposed action, may have a significant effect upon the human environment. Save the Yaak Committee v. Block, 840 F.2d 714 (9th Cir. 1988); Foundation for North American Wild Sheep v. USDA, 681 F.2d 1172, 1178 (9th Cir 1982). In deciding whether an agency's decision not to prepare an EIS, pursuant to NEPA, is appropriate, the "responsible agency must have ‘reasonably concluded' that the project will have no significant adverse environmental consequences." San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980). An agency’s decision not to prepare an EIS is impermissible if the agency fails to "supply a convincing statement of reasons why potential ef fects are insignificant." The Steamboaters v. FERC, 759 F.2d 1382, 1383 (9th Cir. 1985). "[T]he statement of reasons is "crucial" to determining whether the agency took a "hard look" at the potential environmental impact of a project. The Steamboaters v. FERC, 759 F.2d at 1393; Kleppe v. Sierra: Club, .427 U.S. 390, 410, n.21 (1976).
"To be sure, one important-ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. The requirement that an EIS contain a detailed discussion of possible mitigation measures flows both from, the language of the Act and, more expressly, from CEQ's implementing regulations. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
"More, generally, omission of a reasonably complete discussion of possible mitigation measures would undermine the "action-forcing" function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 .(1989).
"Mitigation... and other conditions established in the environmental impact statement or during its review and committed as part of the decision shall be implemented by the lead agency or other appropriate consenting agency." 40 C.F.R. 1505.3.
In failing to ensure the scientific accuracy of the information contained in the EA/EIS, the Forest Service is in violation of NEPA. (See 40 C.F.R. 1502.24).
NEPA requires that agencies "insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions relied upon in the statement... “ (40 C.F.R. 1502.24).
Under NEPA regulations, “(a)gencies (s)hall prepare supplements to either draft or final environmental impact statements if ... (t)he agency makes substantial changes in the proposed action that are relevant to environmental concerns; or ... (t)here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. 1502.9 (c).
“...(T)he moment at which an agency must have a f inal statement ready "is the time at which it makes a recommendation or report on a proposal for federal action." Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976) (emphasis in original).
An agency is required by NEPA to give public notice of Environmental Assessments and Findings Of No Significant Impact adopted pursuant to NEPA. Friends of Walker Creek Wetlands Inc. v. Bureau of Land Management, 19 ELR 20852 (D.Ore. 1988).
"While "foreseeing the unforeseeable" is not required, an agency must use its best efforts to find out all that it reasonably can: "It must be remembered that the basic thrust of an agency's responsibilities under NEPA is to predict the environmental effects of proposed action before action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NEPA, and we must reject any attempts by agencies to shirk their responsibilities under NEPA by labeling any and all discussion of future environmental effects as "crystal ball inquiry.” Citv of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975), quoting in part Scientists’ Institute for Public Information v. A.E.C., 481 F.2d 1079, 1092 (D.C.Cir. 1973).
"Impact statements usually analyze the initial or primary effects of a project, but they very often ignore the secondary or induced effects.... For many projects, these secondary or induced effects may be more significant than the project's primary effects.... While the analysis of secondary effects is often more difficult than defining the first-order physical effects, it is also indispensable. If impact statements are to be useful, they must address the major environmental problems likely to be created by a project." City of Davis v. Coleman, 521 F.2d 661, 676-77 (9th Cir. 1975), quoting Fifth Annual Report of the Council on Environmental Quality, December 1974.
"NEPA addresses environmental effects of federal actions.... If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply." Metropolitan Edison Co v. People Against Nuclear Energy, 460 U.S. 766, 778 (1983).
The federal Administrative Procedure Act, 5 U. S. C. 706 (2) (A), prohibits an agency from acting in an arbitrary and capricious fashion. Fair and honest procedures are also an element of complying with NEPA. Under NEPA regulations, an EIS "shall provide full and fair discussion of significant environmental impacts." 40 C.F.R. 1502.1.
NEPA and applicable regulations require that agencies disclose in EISs the basic information necessary for informed decisionmaking and public participation. Save Our Ecosystems v. Clark, 747 F.2d 1240, 1248-49 (9th Cir. 1984). Failure to include in an EIS information that is "important, significant, or essential" to decisionmaking renders an EIS inadequate. Save Our Ecosystems, 747 F.2d at 1244, n.5.
An EA is a rough-cut, low budget environmental impact statement designed to show whether a full-fledged environmental impact statement is necessary. Sabine River Authority v. United. States Department of the Interior, 951 F.2d 669, 677 (5th Cir.), cert. denied, --U.S.--, 113 S. Ct. 75 (1992). As the Magistrate Judge's Report and Recommendation recognizes, EAs are prepared in two circumstances. First, when there is no environmental impact statement, an EA is required to determine whether a proposed, federal agency action will have a significant impact on the environment. If the action will have a significant effect, an EIS must be prepared. Second, when there is a programmatic EIS in place, an EA is required to determine whether the action is one anticipated in the EIS, consistent with the EIS, and sufficiently explored by the EIS. The EA will come to one of two f indings: either that the project requires the preparation of an EIS to detail its environmental impact, or that the project will have no significant impact (a FONSI) necessitating no further study of the environmental consequences which would ordinarily be explored through an EIS. Sabine River Authority, id. (citing cases).
National Forest Management Act Violations
- Indicator species:
- - standards and guidelines for protection, viability, recovery or restoration as appropriate to meet overall multiple-use objectives (36 C.F.R. 219.27 (6));
- - the expected future conditions in terms of distribution and abundance of populations or habitats to meet overall multiple-use objectives (36 C.F.R. 219.11(b), 219.26);
- - the schedule for monitoring and evaluation of standards, guidelines and objectives for plant and animal species and communities (36 C.F.R. 219.19 (a) (6));
- - evaluate alternatives in terms of their effects on habitat and wildlife populations (36 C.F.R. 219.19(a));
- - appropriate measures to mitigate adverse effects (36 C.F.R. 219.19 (a)(1)).
- Assurance of 5-year Reforestation
- Violation of Forest Plan Standards:
- Clearcutting-as the Optimum Harvest Method:
- Forest Plan Amendments:
- Consistency with Plans
- Public Participation
- Developments in Roadless Areas:
- Wildlife monitoring/inventories
- Soil and Watershed Protection
- Suitable Timber Lands
- Unprofitable Timber Sales
- Diversity
- Ecosystem
Forest Service Regulations under NFMA direct that forest planning shall provide for management of habitat to provide for the maintenance of viable populations of existing native and desired non-native wildlife and fish (36 C.F.R. 219-19), and plant species (USDA Regulation 9500-4) well distributed throughout their current geographic range within the National Forest System planning area. Management direction includes objectives for selected management indicator species (36 C.F.R. 219.19). The Forest Plan should specify for plant and animal species and/or communities identified as major Forest Plan issues or management indicators:
The Forest Service regulation pertaining to viability of wildlife species does not apply to plans that are developed below the forest level (emphasis added). Sharps v. U.S. Forest Service, 823 F. Supp. 668, 679 (S.S.D. 1993)., aff’d. 28 F.3d 851, 855 (8th Cir. 1994). [NOTE: This was an unfortunate ruling - it means viability only has to be examined at the forest-wide level, not the planning area and/or timber sale area.]
Under the National Forest Management Act, 16 U.S.C. 1604(g)(3)(E)(ii), Forest Plans must "insure that timber will be harvested from National Forest System lands only where ... there is assurance that such lands can be adequately restocked within five years after harvest."
"The statutory and regulatory language clearly and plainly requires the Forest Service to insure that timber practices will achieve adequate restocking within five years.” Sierra Club v. Cargill, 732 F.Supp. 1095, 1101 (D.Colo. 1990).
"We interpret 219.27(c)(3) to require identification and implementation of technology to assure restocking within five years. The Forest Service satisfies this mandate by creating a realistic procedure or plan to implement technology to assure adequate restocking within five years." Sierra Club v. Cargill, 732 F.Supp. 1095, 1100 (D.Colo. 1990).
"The statutory and regulatory language clearly and plainly requires the Forest Service to insure that timber practices will acheive adequate restocking within five years. Accordingly, we declare the seven year regeneration standard contained in the Bighorn Forest Plan illegal and a violation of the NFMA and implementing regulations." Sierra Club v. Cargill, 732 F. Supp 1095, 1101 (D Colo. 1990)
NFMA regulations (36 C.F.R. 219.27(c)(3)) mandate that the basis for determination of whether lands will be adequately restocked within five years shall be "research and experience."
The purpose of Forest Plans are to set specific management direction for System lands against which individual projects and management activities can be measured. Although forest plans or Land Resource Management Plans (LRMP) do not make site-specific decisions, they establish guidelines and set standards and each project decision must remain within the bounds and standards established in the LRMP. “As soon as practical after approval of the plan, the Forest Supervisor shall ensure that ... all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the plan..." (36 C.F.R. 219.10(e)). Any deviations, especially those which could result in impacts greater in significance than was generally considered in the LRMP, must be accompanied with a site-specific amendment, complete with proper NEPA compliance. The EA has violated Forest Plan standards and, in light of the fact that no Forest Plan amendments were considered, is therefore in violation of the mandate and intent of NFMA and the Forest Plan.
Open road densities (example) are technical standards not discretionary decision opportunities. By simply ignoring or exempting this decision from these standards, the Forest Service is casually dismissing its obligations and guidelines established during the forest planning process.
In a September 8, 1988 memo on clearcutting from Chief Dale Robertson he states, "We should seek opportunities to reduce clearcutting when other alternatives will meet our land management objectives. In making the determination, it is essential to use the best information available with full interdisciplinary involvement. When clearcutting is determined to be the selected method for a site-specific prescription, we must be confident that it truly is the optimum choice given the specific circumstances involved."
The NFMA clearly requires the Service's Planners to treat the natural resources of our national forests as controlling, coequal factors in forest management -- in particular, as substantive limitations on the particular logging practices that can take place in these forests. That is why the Act's Section 1604 (g) (3) (F) (v) states that the Service can use even-aged logging practices only in the exceptional circumstance -- i.e., only when such is insured to be consistent with the protection of the forests' natural resources. Sierra Club v. Espy 822 F.Supp. 356,363-4 (E.D. Tex. 1993).
The Forest Service must show that clearcutting is optimum when all relevant resource factors are considered, including the maintenance of old growth habitat, habitat for management indicator species, preservation of aesthetics, long-term wildlife security, and other factors. Similarly a recent decision on an appeal of the Harper Cliffs Timber Sale (Geo. Washington National Forest) concludes that DNs must document how clearcutting is best for wildlife, regeneration, and other values.
NFMA regulations require the agency to address non-compliance with Forest Plan standards in its implementation process (36 C.F.R. 219.10(e)). This passage states that as soon as practicable the Supervisor shall ensure that all uses are consistent with the Plan. Rather than comply with the Plan and the intent of NFMA, the Forest has chosen to summarily change the standards for the area.
NFMA allows for amendments. Forest Service regulations, 36 C.F.R. 219.10(f), require: "Based on an analysis of the objectives, guidelines, and other contents of the forest plan, the Forest Supervisor shall determine whether a proposed amendment would result in a significant change in the plan. If the change resulting from the proposed amendment is determined to be significant, the Forest Supervisor shall follow the same procedure as that required for development and approval of a forest plan. If the change resulting from the amendment is determined not to be significant for the purposes of the planning process, the Forest Supervisor may implement the amendment following appropriate notification and satisfactory completion of NEPA procedures."
Under the National Forest -Management Act, the U.S. Forest Service is required to prepare land use plans. 16 U.S.C. 1604. These plans strictly govern the management of National Forest lands. "Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.” 16 U.S.C. 1604(i). Where changes are necessary, Forest Service regulations provide for formal amendments or revisions of plans. 36 C.F.R. 219.10(f), (g).
If plans are to be "reviewed" or "revised," the Forest Service must provide for "public participation." 16 U.S.C. 1604(d).
The ROD and FEIS Fail to Comply with the Chief's Decision in the Idaho Panhandle Appeal and the Subsequent Court Decision.
Under Forest Service criteria, roadless areas must generally include 5,000 acres or more. The definition of roadless areas also includes, however, all roadless areas "adjacent to National Park lands endorsed for Wilderness" and other roadless areas "adjacent to existing wilderness areas regardless of size.” Further, roadless areas can include areas "where logging is not evident." National Audubon Society v. U.S. Forest Service, 21 E.L.R. 20828, 20829, n.1 (D.Ore. 1990).
In his response to an appeal of the roadless evaluation of the Idaho Panhandle Forest Plan the Chief noted that Forest Plans do not mandate development of roadless areas, they merely permit it. The decision stated that the tradeoffs between preservation of roadless values and development would be thoroughly evaluated at the project level and the benefits of non-development vs. development weighed.
In addition, the Chief stated that “....decisions of the Forest Plan represent a dynamic management system... that can be modified.... The Forest Plan will be monitored continually and adjusted as needed." (Idaho Panhandle Decision at 8 and 9).
In the recent court decision on the Panhandle case the judge, supporting this contention stated, “... any future development which might take place (in roadless areas) will again be determined by the Forest Service and will be subject to the requirements of NEPA." Idaho Conservation League v. Mumma, 21 E.L.R. 20666, 20668 (D.Mont. 1990).
On the issue of whether the roadless area and undeveloped quality of the sale areas requires the preparation of an EIS, NEPA mandates the preparation of an EIS for any "major federal action significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). Projects that irreversibly damage the recreational value and resources associated with roadless areas and undeveloped lands constitute a "major federal action significantly affecting the quality of the human environment."
"Roadless areas provide a sanctuary to animal and plant species most sensitive to human disturbances. These animal and plant species may not be able to adapt to new habitat created by fragmentation. Further, timber sale activities may significantly impact recreational opportunities in these unroaded areas.... It is undisputed that once a roadless area is developed through logging and road construction, it is irrevocably and irreversibly changed". National Audubon Society v. U.S. Forest Service, 21 E.L.R. 20828, 20830 (D. Ore. 1990).
"The decision to develop a previously undeveloped area is an irreversible and irretrievable decision, the impacts of which must be analyzed in an EIS.” National Audubon Society v. U.S. Forest Service, 21 E.L.R. 20828, 20830 (D.Ore. 1990).
The ROD and FEIS fail to consider an adequate range of alternatives in that wilderness designation was not considered.
The --- FEIS fails to include an alternative which recommends wilderness designation for all or part of the roadless areas which will be developed under the alternatives. In reviewing the court ruling on the Tenakee Springs v. Block (1986) case, the Regional Office stated the following:
The concurrent opinion also states that after promulgation of the Forest Plan, NEPA documents for projects proposed for roadless areas assigned to a nonwilderness management prescription must examine the issue of whether to develop, not just how develop such areas (Our Approach: Desk Reference).
As two recent court rulings have shown, the no action alternative does not necessarily answer the question of whether the roadless areas will or will not be developed. (See National Audubon Society v. U.S. Forest Service, 21 E. L. R. 20828, 20830 (D.Ore. 1990).) In the recent court case regarding the development of the Trail Creek Roadless Area, Judge Hatfield ruled that the Forest Service was incorrect in arguing that by offering a no action alternative within the Trail Creek EIS NEPA would be satisfied in terms of providing an alternative which would not develop the roadless area. In the case of Lost Silver, the issue of whether or not to develop the roadless areas within the project area has not been addressed simply by offering a no action alternative. Moreover, the FEIS failed to consider that the boundaries within the wilderness bill introduced by Senator Max Baucus, S. 1696, are still in debate (S. 1696 was introduced before the Lost Silver decision was signed). By logging the Lost Silver project area, the Forest Service may be prematurely precluding lands proposed for wilderness designation.
NFMA regulations require that "each Forest Supervisor shall obtain and keep current inventory data appropriate for planning and managing the resources under his or her administrative jurisdiction." 36 C.F.R. 219.12(d) (emphasis added). Also, "population trends of the management indicator species will be monitored and relationships to habitat changes determined." 36 C.F.R. 219.19(a)(6). In fact, the -- National Forest has been aware for some time of its dismal failure to adequately monitor wildlife and their needs, and as the record clearly shows, the Forest has arbitrarily and capriciously ignored that fundamental duty under NFMA.
Under NFMA, Forest Plans must "insure that timber will be harvested from National Forest System lands only where ... soil, slope, or other watershed conditions will not be irreversibly damaged..” 16 U.S.C. 1604(g)(3)(E)(i).,,
This section "contemplates that timber harvesting may be carried out even though such harvesting may cause temporary or short-term damage to soil and watershed conditions. (This section) goes no further than to charge the Secretary with the duty of promulgating regulations to insure that soil, slope and watershed conditions will not be irreversibly damaged as a result of timber harvesting." Citizens for Environmental Ouality v. U.S.,, 731 F.Supp. 970, 984 (D.Colo. 1989).
Under 36 C.F.R. 219.14 (a) (2): "If there exists technology which is capable of adequately repairing short-term damage due to timber harvesting within a reasonable time, and provisions are made for the use of that technology, the timber production may be carried out despite whatever short-term damage may be caused. However, where timber harvesting is contemplated on potentially unsuitable lands, then the technology to be used in preventing irreversible damage must be identified and provisions made for its implementation.” Citizens for Environmental Quality v. U.S., 731 F.Supp. 970, 985 (D.Colo. 1989).
Under NFMA, the Forest Service, in preparing land use plans, "shall identify lands within the management area which are not suited for timber production, considering physical, economic, and other pertinent factors, to the extent feasible, as determined by the Secretary." 16 U.S.C. 1604(k).
It is not a violation of this section for the Forest Service to consider timber production goals in determining which timber lands are suitable for timber production. Citizens for Environmental Quality v. U. S. , 731 F. Supp. 970, 988 (D. Colo. 1989). "Section (1604(k)) provides the Forest Service with ample discretion to consider both economic and other pertinent factors in identifying land suitable for timber production. Citizens for Environmental Quality v. U. S. , 731 F. Supp. 970, 988 (D. Colo. 1989).
"However, we find that if production goals are to be given greater weight in the suitability analysis, then adequate reasons must be set forth for so doing. Defendants must provide, justification for allowing production goals, or any other factor required by (section 1604(k)) and the regulations, to weigh more heavily than other factors." Citizens for Environmental Ouality v. U.S., 731 F.Supp. 970, 988 (D.Colo. 1989).
In a Forest Plan, the range of alternatives considered "must also include an alternative which contemplates timber harvesting at a profitable level even if that level requires reducing current timber production levels." Citizens for Environmental Ouality v. U.S., 731 F.Supp. 970, 990 (D. Colo. 1989).
Section 1604(g)(3)(F)(ii) and 36 C.F.R. 219.27(a)(7) require an analysis, of among other factors, "economic impacts on each advertised sale area" prior to authorizing even-aged timber cuts. This analysis need not be made in a Forest Plan, however "The economic impact analysis may be performed any time prior to the implementation of the project." Citizens for Environmental Oualitv v. U.S., 731 F. Supp. 970, 991 (D. Colo. 1989).
If a Forest Plan adopts a proposed action resulting in "an increase in timber sales from recently experienced levels" and the action would result in "reduce(d) economic efficiency," the plan must comply with the dictates of the so-called "MacCleery Decision," requiring detailed justification for the action. Citizens for Environmental Ouality v. U.S., 731 F.Supp. 970, 986 (D. Colo. 1989).
That decision requires the Forest Service to address the following questions: "Is the timber program as currently proposed actually the most effective way to achieve the non-timber multiple use objectives of the plan? To what extent can timber program costs be cut and/or revenues be enhanced while still providing an appropriate level of non-timber multiple use objectives? Are there other ways to accomplish vegetation management more cost effectively than through a timber program as currently proposed?" Citizens for Environmental Quality v. U.S., 731 F.Supp. 970, 987 (D. Colo. 1989).
In addition, the MacCleery decision requires "the Regional Forester to fully explain the economic implications of the planning alternatives in the ROD. The ROD must explain why the Regional Forester believes the plan will provide greater overall net public benefits than other alternatives and the explanatory burden is increased if the selected alternative has a lower present net value than other alternatives." Citizens for Environmental Quality v. U.S., 731 F.Supp. 970, 987 (D. Colo. 1989).
The MacCleery decision requires a "comprehensive analysis" in the ROD addressing: "(1) the difference between the net value and mix of the priced outputs that could be realized in implementing alternative(s) having a higher PNV and the net value and mix of the priced outputs anticipated if the selected alternative were to be implemented; (2) the objectives of the selected alternative in terms of priced and non-priced outputs and/or responses to expressed public issues that would not be expected to be realized if the alternative(s) having a higher PNV were implemented; (3) a summary in the ROD of the trade-offs or differences between (1) and (2) expressed in economic, environmental, physical and/or other appropriate quantitative and qualitative terms: and (4) an explanation as to why the selected alternative is expected to provide greater overall net public benefits tha(n) the alternative(s) with a higher PNV." Citizens for Environmental Quality v. U.S., 731 F.Supp. 970, 987-88 (D. Colo. 1989).
36 CFR Sec. 219.26 "Diversity. Forest planning shall provide for diversity of plant-and animal communities and tree species consistent with the overall multiple-use objectives of the planning area. Such diversity shall be considered throughout the planning process. Inventories shall include quantitative data making possible the evaluation of diversity in terms of its prior and present condition."
And this statutory duty clearly requires protection of the entire biological community -- not of one species (e.g. the Red-cockaded woodpecker) alone. Indeed, the imposition by this provision of such a broad and stringent duty to protect reflects the truism that the monoculture created by clear-cutting and resultant even-aged management techniques is contrary to NFMA mandated biodiversity. Sierra Club v. Espy , 822 F. Supp. 356, 364 (E.D. Tex. 1993)
NFMA directs the forest to develop a resource management plan that will be based on the following principles of which 36 CFR 219.1(b)(3) directs: "Recognition that the National Forests are ecosystems and their management for goods and services requires an awareness and consideration of the interrelationships among plants, animals, soil, water, air, and other environmental factors within such ecosystems."
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Endangered Species Act Violations
The Endangered Species Act (ESA) declares as its purpose "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such species.” 16 U.S.C. Sec. 1531(b). Congress has provided further direction to federal agencies to use “all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary." 16 U.S.C. Sec. 1532(3). The ESA not only prohibits Federal agencies from taking actions that are likely to jeopardize the continued existence of endangered and threatened species, but also affirmatively requires that they "shall seek to conserve endangered species and threatened species." 16 U.S.C. 1531(c)(1); 1536(a)(2).
“After initiation of consultation..., the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a) (2).” 16 USC 1536 (d).
If an agency refuses to initiate consultation, Section 7(d) cannot produce a basis for proceeding with actions including those not suspected of involving irreversible or irretrievable commitments of resources. Pacific Rivers Council v. Thomas, 30 F3d 1050, 1056 (9th Cir. 1994).
“The preamble to the Section 7 regulations makes it clear that the applicable threshold for triggering formal consultation is very low... Any possible effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal consultation requirement...” (emphasis added) Florida Key Deer v. Stickney, 864 F.Supp. 1222, 1229 (S.D.Fla. 1994.)
Further, in making jeopardy determinations under the ESA, each agency "shall use the best scientific and commercial data available." 16 U.S.C. 1536(a)(2). One court has held that this requires a "first class effort" by the federal agency. Roosevelt Campobello International Park Commission v. U.S. Environmental Protection Agency, 684 F.2d 1041, 1052, n.9 (1st Cir. 1982). The duty may be violated if the agency fails to initiate feasible and necessary tests or studies, Roosevelt, 684 F.2d at 1055, or if an agency initiates test and studies and then acts prematurely before the results are known. Conservation Law Foundation v. Watt, 560 F.Supp. 561 (D.Mass. 1983), aff’d sub nom Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (lst Cir. 1983).
These statutory provisions specify that the Forest Service must do far more than simply insure that its actions are not likely to jeopardize the continued existence of the grizzly bear. The ESA imposes upon the federal agencies an affirmative duty to use all methods necessary to ensure that the grizzly bear recover from its threatened status. Carson-Truckee Water Conservation District v. Clark, 741 F.2d 257, 261 (9th Cir. 1984), cert. denied, 470 U.S. 1083 (1985); Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 170 (D.D.C. 1977).
Section 7(a)(2) of the ESA requires all federal agencies to insure that actions it authorizes are not likely to jeopardize the continued existence of threatened species. The procedural mechanism for insuring the protection of listed species is formal consultation with the Fish and Wildlife Service (FWD). As the Ninth Circuit Court of Appeals held in Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985): "The ESA's procedural requirements call for a systematic determination of the effects of a federal project on endangered species. If a project is allowed to proceed without substantial compliance with those procedural requirements, there can be no assurance that a violation of the ESA's substantive provisions will not result."
Section 7(a)(4) of the Act also requires the Forest Service to initiate formal consultation with the FWD if the proposed action is likely to "result in the destruction or adverse modification" of the grizzly's critical habitat. 16 U.S.C. 1536(a)(4).
The ESA defines critical habitat as: "the specific areas within the geographic area occupied by the species..on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." 16 U.S.C. 1532(5)(A).
The ESA requires agencies to examine the cumulative effects of agency plans using the "best scientific and commercial data available." 16 U.S.C. 1536(a)(2); 50 C.F.R. 402.12(f)(4). Each federal agency is obligated to review its actions "at the earliest possible time to determine whether any action may affect listed, species or critical habitat." 50 C.F.R. 402.14. The courts have recognized that this comprehensive review is especially important when species like grizzly bears, may be affected. As the Ninth Circuit has noted, "species like the grizzly ... require large home ranges making it critical that ESA review occur early in the process to avoid piecemeal chipping away of habitat." Conner v. Burford, 836 F.2d 1521, 1535 (9th Cir. 1988).
In cases where an agency's data demonstrates a possible unacceptable impact to a threatened species, the agency is required to initiate formal consultation with the U.S. Fish & Wildlife Service. 16 U.S.C. 1536(a)(4). Once formal. consultation is initiated, the FWS is required to prepare a comprehensive biological opinion. 16 U.S.C. 1536(b); Conner v. Burford, 836 F.2d 1521, 1532-38 (9th Cir. 1988).
Water Quality
1) Water Protection Reguirements:
The Forest Service is required to protect water quality by NFMA, the Clean Water Act, and state water quality regulations.
The Forest Service's responsibility for protecting water quality on national forest lands is clearly articulated in the Memorandum of Understanding to Implement the Water Quality Management Program on the National Forest in the State of Montana (hereinafter "MOU”), State Water Quality Standards, and the National Forest Management Act. The MOU specifically states:
the Forest Service ... is directed to meet State, interstate, and local substantive as well as procedural requirements respecting control and abatement of pollution, and ... the Forest Service under Public Law 91-190 is directed to utilize a systematic interdisciplinary approach in planning and in decision making, to evaluate and to report.environmental impact of proposed actions, and to provide alternatives to those actions...
The National Forest Management Act provides additional responsibilities which specify that the Forest Service must:
Insure that timber will be harvested from National Forest System lands only where... protection is provided for streams, streambanks, shorelines, lakes, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat. 16 U.S.C. 1604 (g) (3) (E) (iii).
In addition, the Clean Water Act imposes two key requirements on national forest activities. First, the Act directs the Forest Service to comply with state water quality standards (see Northwest Indian Cemetery Protective Assin v. Peterson, 795 F.2d 688, 697 (9th Cir. 1986). Federal antidegradation regulations issued under the Clean Water Act also require full protection of existing beneficial uses from both point and nonpoint sources of pollution. 40 C.F.R. 131.12 (1987).
If a planned activity will foreseeably lower water quality to the extent that it no longer is sufficient to protect and maintain the existing uses in that water body, such an activity is inconsistent with EPA's antidegradation policy which requires that existing uses are to be maintained. In such circumstances the planned activity must be avoided or adequate mitigation or preventive measures must be taken to ensure that the existing uses and the water quality to protect them will be maintained. (Questions and Answers on Antidegradation, EPA 1985).
In addition, under 40 C.F.R. 131.12 (a) (2), before any lowering of water quality occurs in high quality waters, there must be:
- a finding that it is necessary in order to accommodate important economic or social development in the area in which the waters are located;
- full satisfaction of all intergovernmental coordination and public participation provisions; and
- assurance that the highest statutory and regulatory requirements and best management practices for pollutant controls are achieved... This provision is intended to provide relief only in a few extra-ordinary circumstances where the economic and social need for the activity clearly outweighs the benefit of maintaining water quality above that required for "fishable/swimmable" water, and the two cannot be achieved. The burden of demonstration on the individual proposing such activity is very high. In any case, moreover, the existing use must be maintained and the activity shall not preclude the maintenance of a “f ishable/swimmable" level of water quality protection.
The Forest Service traditionally proceeds from the assumption that merely setting minimum management requirements that maintain minimum viable populations of fish constitute compliance with applicable water quality standards. Under this interpretation a healthy fishery in pristine condition could be drastically polluted to marginal viability. This is incorrect. The intent of Section 1604 (g) (3) (E) (iii) of NFMA is clearly to prohibit any loss of habitat that would reduce the population and quality of a fishery. As for federal and Montana antidegradation policies, the provisions cited above are clear in their requirement of full protection of fisheries and other beneficial uses of water absent a demonstration of exceptional circumstances.
Administrative Procedures Act:
The Administrative Procedure Act, 5 U.S.C. Sec. 706, requires all agency actions to conform with general standards of regularity and rationality. The courts will overturn, agency decisions that
are "arbitrary, capricious, or an abuse of discretion." (Ibid.) The Supreme Court has held that:
"[N]ormally, an agency [action] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Manufacturers’ Ass' n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983).
An administrative agency may not merely cite its own expertise in defending a decision it has made. It must provide an adequate explanation of what it has done. If it fails to do that, its action is deemed arbitrary and capricious. In Motor Vehicle Manufacturers’ Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983), the Supreme Court stated:
"The scope of review under the "arbitrary and capricious" standards is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made."
Clean Air Act Violations
"No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 110 ....” 42 U.S.C . 7506(c).
"Conformity to an implementation plan means--
"(A) conformity to an implementation plan’s purpose of eliminating, or reducing the severity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards; and
"(B) that such activities will not--
- " cause or contribute to any new violation of any standard in any area;"
- “ increase the frequency or severity of any existing violation of any standard in any area; or"
- “ delay timely attainment of any standard or any required interim emission reductions or other milestones in any area."
"The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as determined by the metropolitan planning organization or other agency authorized to make such estimates." 42 U.S.C. 7506(c).
Where the FEIS itself showed nonconformity, federal agency was not entitled to dismissal of complaint alleging violation of Clean Air Act. Atlantic Terminal Urban Renewal Area Coalition v. New York City Department of Environmental Protection, 697 F. Supp. 666 (S.O.N.Y. 1988.)
Riparian Area, Wetland Protection
The Forest Service manual, requires that the agency must “(d)elineate and evaluate riparian areas prior to implementing any project activity." FSM 2526.03.3. The manual also requires that the agency “(g)ive preferential consideration to riparian dependent resources when conflicts among land use activities occur." FSM 2526.03.2.
"Each agency shall provide leadership and shall take action to minimize the destruction, loss or degradation of wetlands, and to preserve and enhance the natural and beneficial values of wetlands in carrying out the agency's responsibilities for (1) acquiring, managing, and disposing of Federal lands and facilities; and (2) providing Federally undertaken, financed, or assisted construction and improvements; and (3) conducting Federal activities and programs affecting land use including but not limited to water and related land resources planning, regulating, and licensing activities." Executive Order 11990, Section l(a).
“... (E)ach agency, to the extent permitted by law, shall avoid, undertaking or providing assistance for new.construction located in wetlands unless the head of the agency finds (1) that there is no practicable alternative to such construction, and (2) that the proposed action includes all practicable measures to minimize harm to wetlands which may result from such use. In making this finding the head of the agency may take into account economic, environmental and other pertinent factors." Executive Order 11990, Section 2(a).
"Each agency shall also provide opportunity for early public review of any plans or proposals for new construction in wetlands ... including the development of procedures to accomplish this objective for Federal actions whose impact is not significant enough to require the preparation of an environmental impact statement under Section 102(2)(C) of the National Environmental Policy Act....” Executive Order 11990, Section 2(b).
