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18 ELR 21503 | Environmental Law Reporter | copyright © 1988 | All rights reserved Oregon Natural Resources Council v. LyngNo. 88-680-PA (D. Or. August 11, 1988)The court holds that the Forest Service's timber sale in the Hells Canyon National Recreation Area does not violate the National Environmental Policy Act (NEPA), the Hells Canyon National Recreation Area Act, or the Federal Water Pollution Control Act (FWPCA). The court first holds that the Forest Service did not violate NEPA. Its decision not to prepare a supplement to the environmental impact statement for the management plan was reasonable, because the environmental assessment (EA) for the timber sale adequately considered the effects of the sale on elk, other wildlife, and water quality. In addition, the Forest Service has imposed measures to monitor and mitigate these effects. The EA adequately considered cumulative impacts of this timber sale, even though it did not always label its analysis as such. A worst case analysis is not required, because although the EA acknowledges some uncertainty in possible effects, some uncertainty is inevitable, and the EA does include sufficient information on the sale's probable effect to make a worst case analysis unnecessary. The Forest Service adequately considered the no action alternative and site specific impacts of the timber sale. The EA's identification of the proposal as involving 6 million board feet rather than 6.6 million board feet is nonetheless sufficient, since the EA also studied the effects of harvesting 8 and 16 million board feet, and any additional harm caused by the extra 0.6 million board feet was adequately studied. The timber sale's effects on roadless areas were sufficiently studied. The court next holds that the Forest Service has not violated the Hells Canyon National Recreation Area Act. While the Act directs the Secretary of Agriculture to promulgate regulations, no deadline is set, and the Act requires regulations only as the Secretary deems necessary. Existing rules under other statutes already cover the recreation area. Moreover, it is too late to challenge a decision to allow timber harvesting in the Duck Creek area, which is undertaken pursuant to an already final environmental impact statement and accompanying management plan. The Forest Service has not violated the FWPCA. The FWPCA obligates federal agencies to comply with state water quality standards, and the Forest Service employs practices that will result in compliance with Oregon's water quality standards. Counsel for Plaintiffs Counsel for Defendants Panner, J.: Plaintiffs Oregon Natural Resources Council, Hells Canyon Preservation Council, Friends of Lake Fork, and Ric Bailey bring this action for declaratory, injunctive, and mandamus relief against defendants Secretary of Agriculture Richard Lyng, the United States Forest Service, and Wallowa-Whitman National Forest Supervisor Robert Richmond, and intervenor defendants Eagle Cap Logging, Inc., RMH Aeroservices, Inc., Boise Cascade Corp., Ellingson Lumber Co., Idaho Timber Corp. of Oregon, Inc., North Powder Lumber Co., Sequoia Forest Industries, Inc., Union Forest Products Co., Northwest Timber Workers Resource Council, and Save Our Snake. Plaintiffs contend that the Duck Creek Engelmann Spruce Timber Sale of 6.6 million board feet in the Hells Canyon Natural Recreation Area (HCNRA), violates the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370a, the HCNRA Act, 16 U.S.C. §§ 460gg-460gg-13, and the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1376. I imposed a temporary restraining order (TRO) prohibiting the timber sale, effective from June 23 at 7:50 a.m. to July 11, 1988, at 5 p.m. Trial was July 8, 1988. I find for defendants. Congress created the HCNRA in 1975 to preserve Hells Canyon and seventy-one miles of the Snake River. 16 U.S.C. § 460gg(a). Congress designated 30% of the HCNRA's 652,000 acres as wilderness and 49% as wilderness study and roadless areas. Plaintiffs' Exh. 2, HCNRA Final Environmental Impact Statement (EIS) and Comprehensive Management Plan (Plan), at iii. On April 30, 1982, Chief of the Forest Service Max Peterson signed the Record of Decision for the HCNRA EIS and Plan. Peterson selected a comprehensive management plan that classified the Duck Creek area as Dispersed Recreation/Timber Management, allowing selective cutting of trees. The EIS and Plan became final on April 27, 1984. This controversy began in November 1981 when a violent storm toppled many trees in the Duck Creek area. The following summer, spruce bark beetles attacked storm-felled Engelmann spruce. By 1987, the beetles had killed most large spruce trees in the Duck Creek area. Defendants studied the possibility of selling infested spruce trees. In February 1988, the Forest Service issued an Environmental Assessment (EA) of a proposed salvage sale of infested spruce trees on 3,800 acres. Plaintiffs' Exh. 3. The EA considered six alternatives, ranging from no harvesting to harvesting 15 million board feet (mmbf). On March 4, 1988, defendant Richmond signed a Decision Notice and Finding of No Significant Impact (FONSI), choosing a 6 mmbf harvest. The three plaintiff organizations appealed Richmond's decision and requested stays. The Forest Service denied the stays. Administrative decisions on the appeals are pending. On June 23, 1988, defendants held the auction for the sale. Defendant intervenor Eagle Cap Logging, Inc., which was the only bidder, was awarded the sale pending the outcome of this action. A court may grant an injunction when the plaintiff shows that it will suffer irreparable injury and that its legal remedies are not adequate. Amoco Prod. Co. v. Village of Gambell, U.S. , 107 S. Ct. 1396, 1402 [17 ELR 20574] (1987) (interpreting the Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3120). The court must balance the competing claims of injury and consider the effect on each party of granting or denying the requested relief. Id. Because environmental harm is often permanent or irreparable, and is unlikely to be remedied by money damages, the balance of harms will usually favor an injunction. Id. at 1404. If the court finds that NEPA has been violated, NEPA does not limit the court's equitable jurisdiction to grant or deny an injunction. Save the Yaak Comm. v. Block, 840 F.2d 714, 722 [18 ELR 20869] (9th Cir. 1988) (nothing in NEPA indicates congressional intent to restrict equitable jurisdiction); cf. Sierra Club v. United States Forest Serv., No. 87-2749, slip op. at 7542 [18 ELR 20749] (9th Cir. June 24, 1988) (not deciding whether Amoco applies to NEPA violations); but see Axline, Constitutional Implications of Injunctive Relief Against Federal Agencies in Environmental Cases, 12 Harv. Envtl. L. Rev. 1, 44-57 (1988) (arguing that when NEPA is violated, the court should not balance the harms because NEPA imposes mandatory duties). Plaintiffs contend that defendants have violated NEPA by failing to supplement the EIS, address the cumulative impacts of the Duck Creek sale, perform a worst case analysis, consider the no action alternative, or consider site specific impacts. NEPA is primarily procedural. Save the Yaak, 740 F.2d at 717. NEPA requires that all federal agencies provide a detailed statement about the environmental impact of a proposed action when the action significantly affects environmental quality. 42 U.S.C. § 4332(C). An EA: (a) Means a concise public document for which a Federal agency is responsible that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact. (2) Aid an agency's compliance with the Act when no environmental impact statement is necessary. (3) Facilitate preparation of a statement when one is necessary. (b) Shall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E) [42 U.S.C. § 4332(2)(E)], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. 40 C.F.R. § 1508.9 (1987). On judicial review of an agency's decision, the court must ensure that the agency took a "hard look" at the potential environmental impact of its proposed action. Conner v. Burford, Nos. 85-3929-85-3937, slip op. at 8036 [18 ELR 20379] (9th Cir. July 1, 1988). The court should not substitute its judgment for that of the agency, and it should not overturn an agency decision for minor errors. Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 [17 ELR 20756] (9th Cir. 1987). After a federal agency releases an EIS, it must continue to gather and evaluate new information about the impact of its actions on the environment. Oregon Natural Resources Council v. Marsh, 832 F.2d 1489, 1494 [18 ELR 20321] (9th Cir. 1987) (Marsh), cert. granted, 56 U.S.L.W. 3879 (U.S. June 27, 1988) (Nos. 87-1703 & 87-1704) (consolidated with Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810 [18 ELR 20163] (9th Cir. 1987)). The agency should prepare a supplement when "[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)(2)(ii). The court will uphold an agency's reasonable decision not to supplement an EIS. Marsh, 832 F.2d at 1494. The court determines an agency's reasonableness by examining the information's environmental importance, its probable accuracy, the degree of care with which the agency considered the information and its effect, and the degree to which the agency justified its decision not to supplement the EIS. Id. (citing Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1463 [14 ELR 20777] (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985)). Plaintiffs argue that the EA insufficiently considered the effect of the sale on wildlife, especially elk, and on water quality. I disagree and conclude that defendants reasonably decided not to prepare a supplemental EIS. The EA notes that elk migration and habitat are affected by the loss of spruce trees, although the resulting additional forage may benefit elk. EA at 6. The EA states that the effect on elk is uncertain because the elk migration corridor is wider than the sale area, migration time varies from year to year, and elk are moderately adaptable to varying conditions. Id. at 48-49. William R. Humphreys, Baker District Wildlife Biologist for the Oregon Department of Fish and Wildlife, wrote the Forest Service on December 29, 1987, about the effect of the sale on elk. He recommended that the Forest Service preserve mid-slope spruce "stringers" because elk use them heavily. The Forest Service adopted Humphreys's recommendation. EA at iv. At trial and by witness statement, Humphreys testified that elk summer in the sale area and that although dead trees provide less cover for elk than live trees, they provide more cover than no trees at all. Humphreys stated that the Forest Service should further study the extent of the impact before any harvesting is done. I conclude that defendants adequately considered the potential effects of the sale on elk and that they reasonably concluded that those effects are not significant. Elk will be affected regardless of the Forest Service's decision because most large spruce trees are dead or dying, inevitably reducing cover even if no trees are harvested. Defendants adopted Humphreys's suggestion to preserve stringers. The EA adequately discussed the effects of the sale on elk and other wildlife. See EA at 6, 33, 48-49, 56-58, & 59-62. This contrasts to the EAs found inadequate in Save the Yaak, where the EAs devoted only five sentences to the impact on wildlife. 840 F.2d at 718. See also Methow Valley, 833 F.2d at 817 (in assessing impact of development on deer migration, EA improperly relied on mitigation measures that had not been developed). Plaintiffs also contend that defendants did not adequately consider the effect of the sale on water quality. However, I conclude that defendants have adequately considered water quality and reasonably concluded that the sale will not have a significant impact on water quality. The forest hydrologist, Kenwood Hauter, stated that by preserving a buffer zone of trees along stream banks, prohibiting log skidding in critical areas, and restricting equipment use, the sale will not harm water quality. Declaration of Kenwood Hauter. Hauter also testified that there is only a 5% chance that stream turbidity, or murkiness, will increase more than 10%. The EA provides that water quality will be monitored during and after the harvest. EA at 34. The EA adequately analyzes the potential effect of the sale on water quality and imposes measures to minimize that effect. The EA adequately discussed the sale's potential impacts on the environment. Defendants reasonably concluded that a supplemental EIS was unnecessary. Although Humphreys testified that he would prefer further study of the sale's effect on elk, defendants have analyzed the effects sufficiently. Defendants adopted Humphreys's recommendation that stringers be left intact. An EA need not, and cannot, be perfect. The EA at issue is at least adequate. Humphreys himself complimented the EA as "very thorough." Defendant Intervenors' Exh. 1 at 1. Plaintiffs argue that defendants should have, but did not, analyze the cumulative impacts of the sale. A cumulative impact is the impact on the environment which results from the incremental [18 ELR 21505] 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 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 Sierra Club, slip op. at 7540-41, the court held that the Forest Service should have studied the cumulative impact of nine timber sales. The court noted that the Forest Service's witness on water resources "admitted the EAs do not identify the cumulative effects of past and future harvests on watersheds." Id. at 7540. This testimony "raised substantial questions" about the sales' effect on the environment. Id. Plaintiffs contend that although the EA does address the cumulative effects of this sale on stream flow, it does not discuss any other cumulative effects. However, I agree with defendant intervenors that the EA need not label its analysis "cumulative impacts" to comply with the regulations regarding cumulative effects. For example, the EA's chosen alternative attempts to prevent cumulative effects of this sale on water temperature and turbidity by requiring buffer zones and placing many other restrictions on logging near streams. In addition, because the adjacent Cold Grave resale is almost complete, defendants considered its effect in combination with this sale when they analyzed the existing characteristics of the Duck Creek area. I conclude that defendants adequately studied the cumulative impacts of the proposed sale. Plaintiffs also argue that defendants should have done a worst case analysis. When there are gaps in relevant information or scientific uncertainty, an agency must state that the information is lacking or that uncertainty exists. If the information essential to a reasoned decision is lacking, the agency must include it if possible or do a worst case analysis. Marsh, 832 F.2d at 1496-97. Although the regulation requiring worst case analysis has been rescinded, the Ninth Circuit still applies it because it codifies prior NEPA law. Id. at 1497 n.8. Plaintiffs argue that defendants should have done a worst case analysis of the sale's impact, especially on elk and on water quality. The EA notes some uncertainty concerning the effect of the sale on elk. The question then is whether a study is "essential" to a reasoned choice. Some uncertainty is inevitable. I conclude that the EA contains sufficient information about the sale's probable effect on elk to preclude the need for a worst case analysis. On water quality, Hauter, the forest hydrologist, testified that although he could not guarantee that harvesting would not increase turbidity, there was only a 5% chance that an increase would occur. In his opinion, the studies regarding water quality sufficiently analyzed potential dangers to water quality. The only contradictory testimony regarding water quality was from plaintiffs' witness Mark Wigg, who is trained in forestry but not hydrology. I accept Hauter's testimony. No new studies about water quality are needed. Plaintiffs have not demonstrated the need for a worst case analysis. Plaintiffs argue that defendants have not considered the no action alternative adequately. Federal agencies must seriously consider the no action alternative before approving a project with significant environmental impacts. 40 C.F.R. § 1502.14(d); Conner, slip op. at 8047. To the extent that plaintiffs are attacking the decision to allow timber harvesting in the HCNRA as a whole, defendants have already considered and rejected the no action alternative in the EIS and plan. To the extent that plaintiffs are attacking the sufficiency of the EA's discussion of the no action alternative, I find defendants sufficiently considered the no action alternative. The EA includes tables comparing the merits of the six alternatives, including the no action alternative. Plaintiffs contend that the EA does not sufficiently discuss site specific impacts of the sale on the environment. Plaintiffs argue that the EA should have disclosed the sale's effects on recreation because area visitors cannot use roads while helicopters are carrying logs overhead. I find that the EA adequately discusses the conflicting uses of timber harvest and recreation. The EA notes that a flagman will be needed on existing roads to warn motorists during helicopter logging, but there is no indication that all recreational uses are foreclosed during logging or that any traffic delays will unduly restrict visitors. In addition, Harry Webber, a defendant intervenor familiar with Duck Creek, testified that harvesting dead spruce trees may aid recreational uses because hunting trails will not be clogged by fallen trees. Plaintiffs next argue that the EA should have disclosed that the sale would be 6.6 mmbf rather than 6 mmbf. However, defendants considered the effects of an 8 and a 16 mmbf harvest in the EA. Any harm caused by the additional .6 mmbf has been adequately studied. Plaintiffs also argue that defendants did not adequately consider the effect of the sale on roadless areas. However, no roads will be built in roadless portions of the sale site. In addition, the EIS and Plan designated the sale area for timber and recreation. That designation is final. Plaintiffs' allegations regarding the sale's site specific impacts on water quality will be addressed below in the discussion of the Clean Water Act (CWA). I conclude that defendants have adequately addressed site specific impacts. Plaintiffs contend that defendants have violated the HCNRA Act by failing to promulgate rules and regulations. The Act provides: The Secretary [of Agriculture] shall promulgate, and may amend, such rules and regulations as he deems necessary to accomplish the purposes [of the Act]. 16 U.S.C. § 460gg-7. However, section 460gg-7 does not require the Secretary to issue rules within a certain time, unlike the five-year deadline to develop a comprehensive plan. 16 U.S.C. § 460gg-5(a). In addition, the statute requires the Secretary to issue rules "as he deems necessary," qualifying the statute's otherwise absolute requirement. Even without additional rules, various statutes and regulations already in effect apply to the HCNRA. For example, cultural resources in the HCNRA are protected by the National Historic Preservation Act, 16 U.S.C. § 470, and its implementing regulations. Even if defendants should have promulgate rules, plaintiffs have not shown that the current statutes and rules that apply to the HCNRA are inadequate. Plaintiffs also contend that the Act requires that timber harvesting be restricted to traditional use areas and that the proposed sale would violate this requirement. The Act provides that "timber harvesting by selective cutting . . . may continue during development of the comprehensive management plan, at current levels of activity and in areas of such activity at the time of enactment of this Act." 16 U.S.C. § 460gg-5(f). The EIS and the accompanying plan already allow selective timber cutting in the Duck Creek area. The EIS and plan are final. It is too late for plaintiffs to challenge the Secretary's decision to allow selective cutting in the sale area. See Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 847 [18 ELR 20450] (9th Cir. 1987) (plaintiffs could not challenge EA when they failed timely to appeal initial EA). Plaintiffs contend that defendants have violated the Clean Water Act (CWA), 33 U.S.C. § 1323. They argue that the sale will increase turbidity in Duck Creek more than 10% and that this increase will violate Oregon water quality regulations. I consider this argument despite plaintiffs' failure to raise it in their complaint. The CWA requires states to implement water quality standards with which federal agencies must comply. Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 [17 ELR 20021] (9th Cir. 1986), rev'd on other grounds, U.S. , 108 S. Ct. 1319 (1988). Oregon requires nonpoint sources of water pollution such as logging to comply with certain water quality standards, including that stream turbidity not increase more than 10% above natural levels. Or. Admin. Rule (OAR) 340-41-765(2)(c) (Powder River Basin); National Wildlife Fed'n v. United States Forest Serv., No. 88-752, slip op. at 6 (D. Or. July 29, 1988). To ensure that logging meets these state water quality standards, the Forest Service employs best management practices (BMPs). Oregon water [18 ELR 21506] quality regulations require that logging follow the BMPs promulgated under the Oregon Forest Practices Act, ORS P527.610-527.730, 527.990(1). OAR 340-41-026(7) ("Logging and forest management activities shall be conducted in accordance with the Oregon Forest Practices Act so as to minimize adverse effects on water quality."). The BMPs employed by the Forest Service here meet or exceed the Oregon BMPs. I accept Hauter's testimony and statements on this issue. He stated that while BMPs are not themselves water quality standards, the BMPs prescribed here will cause the project to comply with Oregon water quality standards. Hauter testified that there was only a 5% chance that turbidity will increase more than 10%. I reject Wigg's testimony on this issue. Plaintiffs have not shown that the sale will violate Oregon water quality standards. I conclude that defendants have not violated NEPA, the HCNRA Act, or the CWA. Therefore I need not address the balance of hardships. Plaintiffs' motion for injunctive, declaratory, and mandamus relief is DENIED. Plaintiffs Oregon Natural Resources Council, Hells Canyon Preservation Council, Friends of Lake Fork, and Ric Bailey brought this action for declaratory, injunctive, and mandamus relief against Richard Lyng, Secretary of Agriculture, the United States Forest Service, and Robert Richmond, Wallowa-Whitman National Forest Supervisor. I held for defendants. Plaintiffs now move for an injunction pending appeal, Federal Rule of Civil Procedure 62(c), and for reconsideration. I deny the motion for an injunction, grant the motion for reconsideration, and issue an amended opinion. The court evaluates a motion for interim injunctive relief under a standard similar to that for a preliminary injunction. City of Tenakee Springs v. Block, 778 F.2d 1402, 1407 (9th Cir. 1988). To obtain a preliminary injunction, the moving party must show either a combination of probable success on the merits and the possibility of irreparable injury or serious questions on the merits and balance of hardships tipping decidedly toward the moving party. Caribbean Marine Services Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). Under either test the court must weigh the public interest as a factor if it may be affected. Id. For the reasons stated in my amended opinion, I find that plaintiffs have not shown either probable success on the merits or serious questions on the merits. Plaintiffs' motion for an injunction pending appeal is denied. II. Motion for Reconsideration On reconsideration, I have deleted the discussion of the Clean Water Act in the original opinion and substituted a new discussion. However, my reasoning remains essentially the same. Plaintiffs have not shown that the logging at issue here will violate Oregon water quality standards. Plaintiffs' motion for reconsideration is GRANTED. Plaintiffs' motion for a stay pending appeal is DENIED. 18 ELR 21503 | Environmental Law Reporter | copyright © 1988 | All rights reserved |