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Northcoast Envtl. Ctr. v. Glickman

ELR Citation: 28 ELR 20632
Nos. 96-17074, 136 F.3d 660/46 ERC 1270/(9th Cir., 02/17/1998)

The court affirms a district court holding that, under the National Environmental Policy Act (NEPA), an interagency Port-Orford cedar (POC) management program prepared by the U.S. Department of the Interior (DOI) and the U.S. Department of Agriculture (USDA) was not a final agency action that required an environmental impact statement (EIS). The POC program was created to address a virulent fungus infection of POC trees by setting forth guidelines for species preservation and sales of timber on government lands. The court first holds that it was not an abuse of discretion for the district court to strike plaintiff-appellants environmental groups' cumulative and unnecessary documents outside the administrative record. The district court correctly noted that judicial review of an agency decision not to issue an EIS is generally limited to review of the administrative record at the time the decision was made. Furthermore, the district court found some of the documents cumulative of those already in the agency record and made an independent inquiry into whether the exhibits might prove outcome-determinative and decided they did not. In addition, the environmental groups suffered no prejudice by the exclusion, because the district court actually considered the stricken documents in making its decision.

The court next holds that the less deferential standard of reasonableness applies to threshold agency decisions that certain activities are not subject to NEPA's procedures. The court then holds that the POC program is not a final agency action or a major federal action requiring an EIS. None of the activities allegedly comprising the POC program had an actual or immediately threatened effect as required by Lujan v. National Wildlife Federation, 497 U.S. 871, 20 ELR 20962 (1990). Moreover, DOI and USDA reasonably found that neither the U.S. Forest Service's POC Action Plan nor the Bureau of Land Management (BLM) Management Guidelines significantly affect the quality of the human environment. Rather the Forest Service Action Plan's action items section sets forth guidelines and goals for POC research, management strategies, and information-sharing. Similarly, BLM's POC Management Guidelines provide management strategies and goals for dealing with POC preservation and timber sales on BLM-managed land.

Counsel for Plaintiffs
Michael Axline
Western Environmental Law Center
1216 Lincoln St., Eugene OR 97401
(503) 485-2471

Counsel for Defendants
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Rymer and Tashima, JJ.