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Neighbors of Cuddy Mountain v. U.S. Forest Serv.

Citation: 28 ELR 21073
No. No. 97-35654, 137 F.3d 1372/(9th Cir., 03/04/1998)

The court holds that the U.S. Forest Service failed to comply with National Forest Management Act (NFMA) and National Environmental Policy Act (NEPA) requirements in determining whether to allow a timber sale in the Payette National Forest in Idaho. The court first holds that the Forest Service failed to establish that the timber sale would be consistent with the Payette Land Resource Management Plan (LRMP) as required by the NFMA. To prove that the sale would be consistent with the LRMP, the Forest Service should have shown that after the sale, there would be at least 5/2.5 percent of old growth within each theoretical home range of the pileated wood-pecker, the management indicator species. Instead, the Forest Service evaluated the analysis area rather than the home range of the pileated woodpecker.

The court next holds that the cumulative impacts analysis prepared for the timber sale, in light of three other proposed sales in the area, is inadequate in terms of the sales' combined effect on depleting existing old growth habitat. The Forest Service's analysis was very general and did not constitute the hard look required by NEPA. General statements about "possible" effects and "some risk" do not constitute a hard look absent a justification regarding why more definitive information could not be provided. The court then holds that the Forest Service also violated NEPA by failing to take a hard look at what mitigating efforts it could pursue to offset damages resulting from the sale. Although the Forest Service acknowledged that the sale would negatively impact the redband trout, a management indicator species, by increasing sedimentation levels in three creeks, it failed to discuss which mitigating measures might decrease sedimentation and whether any mitigating measures would be adopted. The court also holds that the Forest Service did not produce cognizable evidence of prejudice for the doctrine of laches to bar the suit. Thus, the court remanded the case to the Forest Service and enjoined future logging until all statutory requirements are met.

Counsel for Plaintiffs
Thomas J. Woodbury
Idaho Sporting Congress
1103 O'Farrell St., Boise ID 83702
(208) 336-7222

Counsel for Defendant
D. Marc Haws, Ass't U.S. Attorney
U.S. Attorney's Office
First Interstate Ctr.
877 W. Main St., Ste. 201, Boise ID 83702
(208)334-9335/1211

Before O'Scannlain and Schwarzer,* JJ.