Friends of Walker Creek Wetlands, Inc. v. Bureau of Land Management

No. 88-779-MA (D. Or. December 9, 1988)

The court holds that the Bureau of Land Management (BLM) did not violate the National Environmental Policy Act (NEPA) by failing to issue an environmental impact statement (EIS) for a proposed timber sale in Oregon, but also holds that the agency failed to provide for adequate public participation in the environmental assessment (EA) process. The BLM concluded, on the basis of its EA, that the timber sale would have no significant impact on the environment. The court first holds that the BLM adequately considered the cumulative impacts of the proposed sale and other sales in the area, even though no cumulative impacts analysis was included in the EA. The BLM reasonably concluded that the sale's effects on the hydrology, visual resources, and water quality of the area would be negligible. The court suggests that a categorical exclusion might have been applicable here, since the present timber sale is actually a follow-through of an earlier harvest. However, the court holds, the BLM must amend its timber sale EA to include or refer to the documentation of the agency's consideration of cumulative effects. The court next holds that the BLM was not required to prepare an EIS because of the controversial nature of the proposed sale, since the controversy here is limited. Plaintiff's position that the timber sale would adversely affect a rare plant species is supported by only slight expert testimony. In addition, the BLM mitigated any potential impact on another plant species by decreasing the sale area. The court also holds that the BLM's EA was adequate, since it considered the effects of the sale on Walker Creek, a vulnerable plant species, visual aesthetics, and the area's elk population. However, the court orders the BLM to incorporate or reference studies on which it relied that were not included in the EA. Next, the court holds that the BLM failed to provide for adequate public participation in the EA process and to give proper notice. There was no general public notice of the availability of the EA or of the agency's decision not to prepare an EIS. Notice of the sale itself does not satisfy NEPA's requirements, since the purpose of NEPA's public participation requirements is to ensure that environmental information is available on an agency's proposed action before the decision is made to undertake the action. The court orders the BLM to provide a 45-day comment period on the EA.

Counsel for Plaintiffs
Richard A. Parrish
215 S.W. Washington St., No. 200, Portland OR 97204
(503) 228-5222

Ralph A. Bradley
Bradley & Gordon
296 E. Fifth Ave., Ste. 309, Eugene OR 97401
(503) 343-8247

Counsel for Defendants
Charles H. Turner, U.S. Attorney; Herbert C. Sundby, Ass't U.S. Attorney
312 U.S. Courthouse, 620 S.W. Main St., Portland OR 97205
(503) 221-2202

John B. Crowell
Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard
520 S. Yamhill St., Ste. 800, Portland OR 97204
(503) 226-6151

[19 ELR 20852]

Marsh, J.:

Opinion

Plaintiffs Friends of Walker Creek Wetlands, Inc., Oregon Natural Resources Council, Inc. and Salem Audubon Society bring this action for injunctive relief against Defendants Bureau of Land Management (BLM) and Hampton Tree Farms, Inc. (Hampton). Plaintiffs brought claims under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the Federal Land Policy and Management Act (FLPMA) and the Administrative Procedures Act (APA). Plaintiffs abandoned their allegations of violations of the ESA, the FLPMA and the APA. Therefore I will rule only on the remaining NEPA issue of whether the BLM violated the procedural mandates of NEPA. I find that the BLM violated NEPA procedures.

Plaintiffs seek an injunction of the PDQ Timber Sale. The BLM and Hampton have voluntarily agreed to take no action on the PDQ Timber Sale until I have ruled in this case. Following the parties' stipulated motion, pursuant to Fed. R. Civ. P. 65, I ordered that the decision on plaintiffs' motion for preliminary injunction will constitute a decision on the merits in this action. On October 5, 1988 I held a court trial.

Background

The controversy centers around the proposed PDQ MacMason timber sale in Walker Creek Basin near McMinnville, Oregon. On April 27, 1988, the BLM auctioned the timber rights for two parcels of land, of 40 and 60 acres, which together are known as the PDQ MacMason timber sale. Hampton Tree Farms was the high bidder.

The proposed PDQ MacMason timber sale is the second entry of a shelterwood harvest.¹ The timber sale consists of two units of mature trees which were left as an overstory when these units were previously logged in 1982. The estimated number of trees to be logged is about 13 per acre at an average of 50 feet spacing between them. Unit 1 is outside the Walker Creek Basin, however unit 2 is within the Walker Creek Basin.

BLM wrote an environmental assessment (EA) in October of 1987 and supplemented it in February 1988. The EA tiered to an area-wide Environmental Impact Statement (EIS). The EA inter-disciplinary team was comprised of the following BLM specialists: David Mason, silviculturist; Roger Monthey, wildlife and fisheries biologist; Larry Scofield, biologist; James Fogg, Hydrologist. Richard Prather, BLM Area Manager, issued a "finding of no significant impact" (FONSI) based upon the findings of these experts.

Discussion

Plaintiffs contend that defendants have violated NEPA by (1) failing to prepare an EIS because the cumulative effects of the PDQ MacMason sale may significantly affect the environment; (2) failing to prepare an EIS because the proposed sale is controversial; (3) failing to provide public participation and notice; and (4) preparing an inadequate EA (includes plaintiffs' argument concerning BLM's candidate species policy).

Standard of Review

NEPA is primarily procedural. Save the Yaak Comm. v. Block, 840 F.2d 714, 717 [18 ELR 20869] (9th Cir. 1988). Therefore, an agency action taken without observance of the procedure required by the statute will be set aside. Id.

In reviewing an agency decision not to prepare an EIS pursuant to NEPA, I must determine whether the agency has reasonably concluded that the project will have no significant adverse environmental consequences. If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable. Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172, 1178 [12 ELR 20968] (9th Cir. 1982).

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). 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, 848 F.2d 1441, 1446 [18 ELR 21182] (9th Cir. 1988). The court should not substitute its judgment for that of the agency. Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 492 [17 ELR 20756] (9th Cir. 1987).

I. Is an EIS Required?

A. Cumulative Impacts

Plaintiffs contend that BLM failed to consider the effects of the PDQ MacMason sale with the impacts of the "Walk On By" and "Memory Meadow" sales and a Willamette Industries logging operations, all of which are planned for the Walker Creek Basin. Plaintiffs argue that BLM should have conducted a cumulative hydrological analysis, studying the effects of all the logging in the Walker Creek Basin and any possible impacts on sidalcea nelsoniana. In addition, plaintiffs assert, BLM should have considered the [19 ELR 20853] cumulative impacts on the local elk population and on the visual aesthetics of Walker Creek Basin.

Section 102(2)(c) of NEPA requires the preparation of an environmental impact statement (EIS) for all "major federal actions significantly affecting the quality of the human environment . . ." 42 U.S.C. § 4332(2)(c). The Council on Environmental Quality (CEQ) promulgated regulations governing the application of NEPA. 40 C.F.R. 1500 et seq. The regulations are binding on federal agencies. Andrus v. Sierra Club, 442 U.S. 347 [9 ELR 20390] (1979). The CEQ regulations require an agency to prepare an EA to briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a FONSI. 40 C.F.R. § 1508.9 (1986). If an EA results in a finding that the proposed project will not cause significant environmental effects, a FONSI must be issued explaining the reasons for that finding. 40 C.F.R. § 1508.9 (1986).

The BLM prepared an EA which tiered to a 1983 area-wide EIS. The EA resulted in a FONSI which plaintiffs contend is erroneous because the BLM failed to do a cumulative impacts analysis in the EA. The plaintiffs argue that the EA insufficiently considered the effect of the sale on elk, visual aesthetics and on water quality. I disagree and conclude that defendants reasonably decided not to prepare an EIS on the PDQ MacMason timber sale.

A 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 of [sic] 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. The BLM states that a cumulative impacts analysis was not done because:

The majority of the total basal area (75%) was removed at the time of the initial treatment, sediment inputs and water balance of Walker Creek where it flows into the meadows is not expected to change from the removal of remaining overstory vegetation beyond that which occurred during earlier cutting. No substantial increases in sediment delivery to McGuire Reservoir are anticipated.

Ex. 3 p. 11.

Although no cumulative impacts analysis was included in the EA, the BLM did consider the potential cumulative effects of the proposed project and did not improperly narrow the limit of the project area. After a detailed hydrological analysis, the BLM determined that the removal of the overstory trees would not adversely effect Walker Creek. Furthermore, the BLM considered the fact that the PDQ MacMason sale is not within anarea which receives visual resources management protection under BLM's current timber management plan for the Westside Salem district. The sale is not visible from the public roads in the vicinity of the sale or the majority of the Walker Flat area. The BLM also considered whether the sale would have adverse effects on the elk habitat. The BLM concluded that the removal of overstory trees would not alter the value of the units for elk habitat.

Hydrologist Fogg determined that the proposed sale would increase water flows in Walker Creek by an amount equivalent to a precipitation increase of two-tenths of an inch per year, in an area that receives an average of 110 inches of rain a year. Fogg stated that stream flow measurement is only accurate to 5%. The potential increase, then is less than 0.2%, much less than can even be measured. Thus, Fogg concluded, the sale would have essentially no impact on the quantity of water in Walker Creek.

Fogg reached a similar conclusion regarding the water quality, listing a number of factors impeding the transport of sediment from Unit 2 to Walker Creek. (Unit 1 is outside the watershed). First, the roads are almost entirely in place. Second, few trees would be cut, so there would be few skid rows. Third, the existing thick understory would minimize soil disturbance. Fourth, the unit contains no streams which would facilitate sediment transportation.

Although there is a dispute in the testimony about the numbers of streams, I find that the unit contains no streams. Mr. Fogg testified that Unit 2 contains no stream. Mr. Fogg stated the EA was erroneous with respect to the finding that there were 500 feet of streams. In affidavits submitted after trial which I allowed to consider, Mr. Redfern states that there are 500 feet of intermittent streams. The topography map, Ex. 101, discloses area of natural watercourse for surface runoff but no streams or streambeds exist in the area. I find the testimony of Mr. Fogg far more persuasive. I find that there are no streams in Unit 2.

While the topography above the riparian zone has contours, the topography of the riparian zone is almost flat. There is a proposed buffer zone between 50 and 150 feet wide. All of these factors discussed above, support Mr. Fogg's conclusion that the sale will have negligible impact on the sediment in Walker Creek.

The plaintiffs have failed to raise substantial questions concerning any potential adverse effects of the proposed sale. I conclude that the BLM adequately considered the cumulative impact of the proposed sale and reasonably concluded that an EIS was unnecessary. However, the BLM did not include this information in the EA. The BLM must include or refer to this information in the EA. If the BLM makes references in the EA to information which is not included in the EA then the BLM must make this information readily available to the public.

I am disturbed by this case. The plaintiffs argue that an EIS is required in this situation. Actually a categorical exclusion² would have been appropriate. See 40 C.F.R. § 1508.4. This overstory removal was planned for in the first timber sale EA. The sale is a follow-through on an earlier activity when the sale area was harvested by a shelterwood cut. There were no significant changes in the environment of this area between the first removal and now. For these reasons, the proposed project could have been categorically excluded from preparing a EA. However, itshould be noted that a categorical exclusion is an environmental document and must comply with the requirements of public notice and participation. See 40 C.F.R. § 1506.6.

In turn, the BLM did not carefully adhere to the procedural requirements of NEPA perhaps because the agency perceived the proposed project to be insignificant. Agencies must determine what level of environmental documentation is required and then follow the mandates of NEPA. When an agency chooses to write an EA, as was the case here, it must comply with the procedures in NEPA. The BLM must amend the PDQ timber sale to include or refer to the documentation of the agency's consideration of cumulative effects.

B. Controversy

Plaintiffs contend that the BLM violated NEPA in failing to prepare an EIS because there is substantial controversy about the potential impacts of the proposed timber sale.

The CEQ regulations dictate that one factor in determining whether an EIS is required is "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4). The term controversial refers to "cases where a substantial dispute exists as to the size, nature or effect of the major federal action rather than to the existence of opposition to a use." Foundation for North American Wild Sheep, 681 F.2d 1172, 1182 (9th Cir. 1982).

A controversy is marked by competing opinions: the more evenly balanced the opinions, the greater the degree of controversy. When one party offers only limited support for its view, courts find that the controversy does not rise to the level of intensity needed to establish "significance." See Friends of Endangered Species v. Jantzen, 760 F.2d 976 [15 ELR 20455] (9th Cir. 1985). Plaintiffs' position in this case is supported by only slight expert testimony. Plaintiffs rely heavily on the testimony of Mr. Larry Scofield, a BLM interdisciplinary botanist, to establish a controversy. However, Mr. Scofield never reached an opinion contrary to other government specialists, nor did he dispute agency findings. Rather, Mr. Scofield stated he could not determine the potential effects of the timber sale on Sidalcea without further study. Furthermore, Mr. Scofield relied on a letter, Ex. 16, which was not admissible and [19 ELR 20854] was withdrawn by plaintiffs. I reject Mr. Scofield's testimony which relied upon this inadmissible letter. Mr. Fogg stated that any potential impacts from the proposed project on Walker Creek and Sidalcea would be negligible.

Mr. Scofield also expressed concerns about BLM's search for poa laxiflora in Unit 2 but does not dispute the agency findings. BLM mitigated any potential impact on poa laxiflora in Unit 2 by decreasing the sale area. Mitigation steps such as this, described in the EA, are a sufficient response to a controversy, precluding an EIS. Friends of Endangered Species v. Jantzen, 760 F.2d 976, 987 [15 ELR 20455] (9th Cir. 1985).

Plaintiffs also presented the testimony of Ms. Armstrong, who holds a masters degree in botany. While Ms. Armstrong expressed concerns, she did not refute the scientific analysis of any BLM specialist.

I conclude that plaintiffs have not established a controversy sufficient to require an EIS.

II. Is the EA Adequate?

Plaintiffs contend that the EA is inadequate because the BLM did not adequately consider (1) the effect of the sale on Walker Creek; (2) the possible effects of the sale on poa laxiflora; (3) the sale's impact on visual aesthetics and on the elk population. I disagree. The BLM adequately considered the potential site specific impacts of the proposed sale.

(1) Walker Creek

Plaintiffs take issue with the government's statement in the EA, stating that water flow changes would not exceed those of the previous cutting. The BLM states in the EA that it expects no change in stream flow or water quality. This finding was based on a hydrological study of Mr. Fogg. Mr. Fogg also studied Unit 2 and found that the area contained no streams and therefore would not impact Walker Creek. I find Mr. Fogg's analysis displays diligence and competence. However, these hydrological studies were not included in the EA. These studies must be incorporated or referenced in the EA.

(2) Poa laxiflora

Plaintiffs assert that the EA was inadequate because it did not fully address possible effects of the sale on poa laxiflora. Poa laxiflora is a species of bluegrass which is designated by the Environmental Protection Agency (EPA) as a 3C species.³ A Yamhill County botanist, Nick Testa, had identified poa laxiflora in Unit 1 but more recent searches have failed to find the plant. In response to the possible presence of poa laxiflora in Unit 1, the BLM instituted a monitoring plan for the plant. Unit 2 was also thought to contain poa laxiflora near one edge of the unit. In response to the possible presence of the plant in Unit 2, the BLM modified the sale boundary and mandated mitigation measures.

The BLM effectively addressed concerns over the possible effect of the sale on poa laxiflora.

(3) Visual Aesthetics and Elk

Plaintiffs claim that the EA is inadequate because it does not fully address the sale's potential impact on visual aesthetics and on the elk population.

The EA does, in fact, specify that the proposed sale would conform with the Visual Resource Management objectives. Ex. 3 p. 5. Further, the testimony revealed that the sale area could not be seen from any public road. Plaintiffs provide no evidence to the contrary.

The elk population, according to wildlife biologist Roger Monthey, would not be affected by the sale. Removing the overstory trees would not affect the thermocover or the available forage which are critical requirements of elk habitat. BLM relied upon Monthey's findings in preparing the EA. Again, plaintiffs provide no evidence to the contrary. BLM's discussion of visual aesthetics and elk population is fully satisfactory.

I conclude that the EA is adequate. However, the BLM must incorporate or reference studies not included in the EA.

III. Was there Adequate Public Participation?

Plaintiffs contend that the BLM failed to adequately involve the public in the environmental assessment process. Furthermore, plaintiffs argue that the BLM did not give adequate notice. I agree.

CEQ regulations encourage public participation. The "agency shall involve environmental agencies, applicants, and the public, to the extent practicable in preparing [environmental] assessments." 40 C.F.R. § 1501.4(b). Agencies shall:

(a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.

(b) Provide 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 and affected.

40 C.F.R. § 1506.6. The regulations require the agency to notify the public of the availability of environmental documents, including EA's and FONSIs. 40 C.F.R. §§ 1506.65(b), 1508.10. The regulations specify separately that the "agency shall make the finding of no significant impact available to the affected public . . ." 40 C.F.R. § 1501.4(e)(1).

The regulations set out a number of ways the agency can provide notice in the case of an action with effects primarily of local concern, including notice to state clearinghouses, publication in local newspapers or through other media and direct notice to concerned individuals and organizations. See 40 C.F.R. § 1506.6(3).

There was no general public notice of the availability of the EA, although copies were provided to plaintiffs at their request. Furthermore, there was no public notice of the FONSI. On March 30, 1988, the BLM published a Notice of Sale of the PDQ MacMason Timber Sale. Notice of the sale does not qualify as notice for the purposes of 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.

The BLM failed to give public notice of the EA and the FONSI. As a consequence, the BLM did not adequately provide for public participation to the extent that is practicable.

In Save Our Ecosystems v. Clark, the court held that an EA which is the functional equivalent of an EIS, is subject to the minimum 45 day comment period. 747 F.2d 1240, 1247 [15 ELR 20035] (9th Cir. 1984). Although the PDQ MacMason EA is not the functional equivalent of an EIS, I still find a 45 day comment period appropriate.

IV. BLM's Candidate Species Policy

Plaintiffs have strenuously argued that the timber sale should be enjoined to protect, or at least to further study the impacts on, the rare plants, sidalcea nelsoniana and poa laxiflora. BLM's own policies, plaintiffs assert, require greater analysis of these plants. Plaintiffs' basis for this claim has shifted from theory to theory.

First, plaintiffs argued that BLM's actions violated the APA. Plaintiffs next claimed that defendants should be enjoined because the BLM has violated its own policies. Now, plaintiffs argue that the lack of appropriate consideration of these plants is a violation of NEPA. "[T]he instructions to consult or confer with the [United States Fish and Wildlife Service] provide a useful standard for measuring the BLM's compliance with its duty to consider the potential impact on the plants, including its duty to consult with other agencies, under NEPA." Plaintiffs' Closing Argument, p.29. This theory, proffered late and without support is rejected.

The plants, poa laxiflora and sidalcea nelsoniana are not listed endangered species, or true candidate species. I considered BLM's treatment of the plants earlier in the brief and found it satisfactory.

Conclusion

The BLM did not violate NEPA by failing to prepare an EIS. The BLM adequately considered the cumulative effects of the proposed sale but did not include or reference all the documentation in the EA. Furthermore, the BLM did not provide adequate public participation and notice. Consequently, plaintiffs' request for injunction is granted until such time as the BLM complies with the requirements of NEPA for proper inclusion of referenced documentation in the EA and provides 45 day notice to allow adequate public participation.

If it were not for these procedural errors, I would have no hesitancy in holding in favor of the defendants and denying any relief to plaintiffs in this case. I retain jurisdiction until such time as the requirements of NEPA have been filled whereupon defendant may petition this court to remove the injunction.

1. A shelterwood is a two stage harvest prescription. In the first stage, approximately 75 percent of the trees are removed. The remaining trees are left for seed and shelter. The optimal time to remove the overstory trees with the least damage to the regeneration trees is when the understory trees are about 3 feet in height.

2. "Categorical exclusion" means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in § 1508.9 even though it is not required to do so.

3. A 3C species is one that is monitored, but is not designated as a candidate for the endangered species list.