Sierra Club v. Butz

No. C-74 2421 SAW (N.D. Cal. November 28, 1975)

The court enjoins, as violative of NEPA, most of the United States Forest Service's (USFS) timber sales and logging activities in the Fox Planning Unit of the Six Rivers National Forest in California. A timetable is established for environmental impact statement (EIS) preparation leading up to final submission to the Council on Environmental Quality by May 1, 1976. In the interim, USFS must complete a re-evaluation of sediment yields from logging activities; prepare a draft EIS which will examine potential land slide and geological hazards; and re-evaluate and submit for plaintiffs review existing timber sales' impacts on geological formations. Additional timber sales are prohibited until 30 days after submission of the final EIS. Each sale must be analyzed in terms of total harvest volume, road location, silvicultural techniques, and effects on old growth timber and wildlife habitat.

Counsel for Plaintiff
John T. Weld
Charles D. Chalmers
Weld, Freeland & Chalmers
16 California St., Suite 203
San Francisco, CA 94111
(415) 986-7472

Francia M. Welker
Sierra Club Legal Defense Fund, Inc.
311 California St., Suite 311
San Francisco, CA 94104
(415) 398-1411

Counsel for Defendant
David E. Golay, Asst. U.S. Attorney
450 Golden Gate Ave.
San Francisco, CA 94102
(415) 556-1126

[6 ELR 20128]

Weigel, J.:

SETTLEMENT AGREEMENT

The undersigned parties enter into this Settlement Agreement on the date and at the place set forth below with reference to the following facts:

1. On or about November 18, 1974, the Sierra Club, a nonprofit corporation, filed that certain action entitled Sierra Club v. Earl L. Butz, Secretary of Agriculture, et al., United States District Court, Northern District of California, Action No. C 74 2421 SAW, in which action the Sierra Club seeks a declaration that a final environmental impact statement ("FEIS") prepared by defendants for the Fox Planning Unit ("Fox Unit") of the Six Rivers National Forest, located in the State of California, is insufficient as a matter of law, and for injunctive relief.

2. Subsequent to the filing of said action all parties participated in discovery which led the parties to agree to certain undisputed facts set forth in a Joint Pre-Trial Order entered in said action on or about October 10, 1975, and repeated in the STIPULATION THAT JUDGMENT SHALL BE ENTERED dated November 24, 1975, which is to be filed herewith.

3. On the basis of the facts discovered in said action and agreed upon by the parties, the parties have agreed it is in the best interest of the parties and of the public that the matter be settled by agreement of the parties instead of through continued litigation.

WHEREFORE, the parties hereto, in consideration of said facts and of the promises and covenants contained herein, agree as follows:

(1) The parties shall enter into a STIPULATION THAT JUDGMENT SHALL BE ENTERED identical to the stipulation, a copy of which is attached hereto as Exhibit "A." [Omitted. — Ed.] Said STIPULATION THAT JUDGMENT SHALL BE ENTERED shall be filed with the court. A JUDGMENT shall be entered by the court identical to the JUDGMENT, a copy of which is attached hereto as Exhibit "B" and by this reference incorporated herein and made a part hereof.

(2) The Regional Forester for the California Region of the Forest Service has caused a Forest Service task force to re-evaluate the geotechnical, hydrologic, and soils data relating to sediment yields for the actions proposed for the Fox Planning Unit of the Six Rivers National Forest. That task force consisted of the following members: Jerry Anderson, Soils Scientist, Regional Office; Jim Marsh, Hydrologist, Regional Office; Ronald Bisio, Geologist, Regional Office; Frank Johnson, Timber Management Officer, Six Rivers National Forest; Austin Thompson, Forest Engineer, Six Rivers National Forest; and Richard LaVen, Hydrologist, Six Rivers National Forest.

(3) The complete written report of said task force shall be provided to the attorneys for the Sierra Club not later than Monday, November 3, 1975.

(4) The members of said task force, at the request of the Sierra Club, shall be made available collectively for a meeting at a mutually agreed time and place to discuss with Sierra Club representatives the findings and conclusions stated in said written report no more than thirty (30) days after said written report has been provided to the attorneys for the Sierra Club. The attorneys for the Sierra Club and any experts retained by the Sierra Club may attend said meeting, as may the attorneys and any additional experts for the United States Forest Service. At such meeting the Sierra Club shall be entitled to question the members of the task force with regard to the extent of the study conducted, methodologies employed in the study, the findings and conclusion stated in the report, and any other matters which bear on the nature and extent of the study conducted.

(5) After the provisions ofparagraphs (3) and (4) above have been complied with, defendants shall prepare a draft supplement to the environmental impact statement which shall be made available to the public and for which there shall be a comment period of at least forty-five (45) dyas.

(6) The draft supplement to the environmental impact statement shall treat geologic and related hazards presented by the actions proposed in the Fox Planning Unit of the Six Rivers National Forest and shall be limited to such subjects. Specifically, the draft supplement to the EIS shall include all of the following:

(a) A description of significant illustrative probable implementation activities within the Fox Planning Unit, including but not limited to existing or probable cut block locations, existing or probable road systems (including both access and spur roads), existing or probable reforestation procedures, and existing or probable stream belt protection procedures.

(b) A description of the geological and geomorphic characteristics of the area, including slope, structure, solid structure and formation, site productivity, hydrologic regime, states of equilibrium, meso-climate and micro-climate, existing land slides and potential land slide areas, and the potential for hazards which could cause increases in sedimentation or erosion to the extent such hazards may affect hydrologic regimes and states of equilibrium or site production.

(c) A description of the methodology utilized in determining the geological and geomorphic characteristics and the erosion/sedimentation responses of the area.

(d) Copies of at least the following element maps prepared or utilized by the geology experts: Structure/slope, existing and potential land slides by type and activity, stability hazard rating, slope-class or topographic, rock characteristics, proposed and existing roads and proposed and existing cut blocks.

(e) A description of the manner and degree in which the erosion/sedimentation rates interrelate with and will impact water quality, fish habitat, spawning areas, stream hydrology, wildlife habitat, forest regeneration, meso-climate and micro-climate, site productivity and flooding.

(f) The report prepared by the Geological and Materials Engineerings Division of the Region 5, dated August 6, 1973, and entitled "ENVIRONMFNTAL IMPACT EVALUATION" shall be appended, including the element maps prepared as a part of that report.

(g) A quantitative analysis of the increases in sedimentation over background levels (for the preceding ten-year period) which can be projected for five-year intervals over the planning period as the result of specific road building activities and timber cutting activities.

(h) Measures which will be taken to mitigate impacts presented by the existing or illustrative probable activities referred to in paragraph 6(a) above shall be described with reference to the specific hazard being treated.

(i) A copy of the standard form of timber sale contract provisions [6 ELR 20129] relating to environmental protection shall be included in the appendix to the lraft supplement to the EIS.

(j) A listing of all geological and other natural resource studies used as the basis for extrapolating projections as to possible impacts of logging and road-building activities in the Fox Unit.

(7) In addition to comments requested from any and all interested federal agencies, the Forest Service shall request comments from the State of California through the StateClearing House procedure, as prescriped by Office of Management and Budget Circular A-95.

(8) After the comment period has ended, defendants shall prepare and circulate to the public a final supplement to the environmental impact statement. The final supplement to the environmental impact statement shall have attached to it all comments received from federal, state, or local governmental bodies or agencies, a representative sample of all other comments received, and a list of all comments received which are not attached.

(9) The following timber sales have already been awarded within the Fox Unit: Fox Sale; Fox Ridge Sale; Butte Sale; and Drift Salvage Sale. Some of the foregoing sales have been partially re-evaluated as to road and cutblock locations in relation to geological hazards by a staff geologist of the Six Rivers National Forest and other staff specialists. Each of the foregoing sales, to to extent it has not been re-evaluated, shall be re-evaluated as to road and cutblock locations in relation to geological hazards by a staff geologist of the Six Rivers National Forest, and such other staff specialists as deemed necessary by the Forest Service, prior to road building or logging on those sales. A written report of each and every evaluation, whether conducted prior to the date of this agreement or after the date of this agreement will be made available to attorneys for the Sierra Club at least thirty (30) days, or such other number of days as the parties through their attorneys shall agree upon, prior to any road building or logging activity taking place.

(10) No additional timber sales shall be advertised or awarded by the Forest Service within the Fox Unit until at least thirty (30) days after the action referred to in paragraph 8 above has been completed, and until an EAR [environmental analysis report] prepared or supplemented as aforesaid has been prepared. Each EAR, in addition to all other information required by law or otherwise, shall contain the following:

(a) The basic information for evaluation of a proposed sale, including but not necessarily limited to, a biotic analysis of the oldgrowth forest including timber and non-timber types before and after harvesting, the degree to which the sale converts the area to a managed forest, total volume to be harvested, volume species, location of cutblocks and roads, silvicultural prescription (including requirements for future management of spaces between cutblocks if needed at this time), logging methodology to be imployed in each subpart of the sale area, and silvicultural technique prescribed for each sale subpart.

(b) Recommendations for special contract provisions to be included as necessary for resource protection because of particular or unusual aspects of the sale area.

(c) A description of the survey conducted to determine fish and wildlife counts of species occurring in or using the sale area, a description of the complete hbitat needs of those species, and a description of the impacts on those species and their habitats which will result from any and all hazards presented by specific road-building and logging activities.

(11) The United States Department of Agriculture, United States Forest Service, Region 5, shall promulgate a rule identical in form to Exhibit "C" attached hereto which shall apply throughout Region 5.

(12) The Sierra Club waives the right to raise further objections to the adequacy of the Fox Unit FEIS previously filed with the Council on Environmental Quality, but reserves the right to challenge by appropriate legal action the adequacy of the supplement to the EIS in its coverage of the items listed in paragraph 6 above.

JUDGMENT

Pursuant to a Stipulation that Judgment shall be entered dated November 24, 1975, and Settlement Agreement dated November 5, 1975, executed by the parties and filed herein, and good cause appearing therefore the court finds and concludes as follows:

(1) The facts stated in the statement of UNDISPUTED FACTS set forth in Paragraph (3) of the Pre-Trial Order dated October 10, 1975, which statement forms the basis for the Settlement, are true and hereby incorporated into and made a part of this Judgment.

(2) The final environmental impact statement for the Fox Planning Unit, Six Rivers National Forest, filed with the Council on Environmental Quality on April 11, 1974, does not fully satisfy the requirements of the National Environmental Policy of 1969 (42 U.S.C. §§ 4321 et seq.).

WHEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that:

(1) The parties shall in good faith comply with the terms and conditions set forth in the Settlement Agreement.

(2) Pending the preparation and completion of a supplement to environmental impact statement and pending further order of the court, defendants, and each of them and their agents employees and nominees be and they are hereby restrained and enjoined from engaging in any of the actions and programs described in said final environmental impact statement, including, but not limited to, logging activities, road building activities, and timber sales, except to the extent parties have agreed in the Settlement Agreement that activities or programs, may continue on those certain timber sales known as the Fox Sale, Fox Ridge Sale, Butte Sale, and Drift Salvage Sale, which sales have been awarded within the Fox Unit prior to the date of this Order.

(3) The Supplement to Environmental Impact Statement shall, as a minimum, comply in good faith with the matters set forth in Paragraph (6) of said Settlement Agreement.

(4) The preparation, circulation, and submission of the Supplement to environmental impact statement shall comply with the procedural and time standards promulgated in the Council on Environmental Quality Guidelines, and other applicable regulations, and insofar as possible shall adhere to the following schedule:

(A) Preparation of Draft Supplement to EIS, November, 1975, to January, 1976;

(B) Circulation of Draft Supplement to EIS, to public agencies for comment, February 1, 1976;

(D) Transmission of Final Supplement to EIS to Council on Environmental Quality, May 1, 1976.

(5) Plaintiff, Sierra Club, shall retain the right to challenge the sufficiency or adequacy of said Supplement to EIS by appropriate court or administrative action provided that Sierra Club may not challenge the sufficiency of said Supplement to EIS except as to those matters contained in Paragraph (6) of the Settlement Agreement.