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Blue Mountains Biodiversity Project v. Blackwood

ELR Citation: 29 ELR 20424
Nos. 98-35783, 161 F.3d 1208/(9th Cir., 12/02/1998)

The court holds that the U.S. Forest Service must prepare an environmental impact statement (EIS) for several timber salvage sales on fire-damaged land in the Umatilla National Forest in Oregon. The court first holds that the Forest Service did not take the requisite hard look at the environmental impacts of the main salvage sale. The environmental assessment (EA) for the main sale fails to persuade that the sediment generated by the sale would have no significant impacts on the fish populations in the area. In addition, the EA for the main sale never identifies the location of any of the proposed roads or the number of stream crossings, and reveals only that the expected level of increased erosion and sediment delivery will be small in comparison to that caused by the fire. Furthermore, the EA contains virtually no references to any material in support or in opposition to its conclusions. The court also holds that the Forest Service inadequately discussed mitigation measures to reduce the effects of erosion caused by logging and roadbuilding activities. Nothing in the EA supports the Forest Service's conclusion that proposed best management practices, which were based on observations of logging in unburned areas, will be adequate in a severely burned area where increased levels of erosion have already occurred. The court then rejects the Forest Service's argument that it need not prepare an EIS for any of the salvage sales because they may be tiered to the forest plan EIS and to the other EAs. Nothing in the tiering regulations suggests that the existence of a programmatic EIS for a forest plan obviates the need for any future project-specific EIS, without regard to the nature or magnitude of the project.

The court next holds that the Forest Service did not take the requisite hard look at the cumulative effects of the proposed sales together and in combination with the effects of the fire. No document explores the collective impact of the sales. Although the EA for the main sale purports to rely on a Forest Service analysis, that study assessed only the impacts of the fire on the watershed, not the additional impacts of logging several thousand acres and building several miles of roads, and it does not substitute for a meaningful cumulative impacts analysis. The Forest Service should have evaluated the cumulative impacts of the sales in a single EIS. All of the proposed sales were reasonably foreseeable, and all raised substantial questions that they would result in significant environmental impacts.

[Briefs and pleadings in this litigation are published at ELR BRIEFS & PLEADS. 66650.]

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

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
888 SW 5th Ave., Ste. 1000, Portland OR 97204
(503) 727-1000

Before Tashima and Fitzgerald,* JJ.