Soda Mtn Wilderness Council v. US Bureau of Land Management , 607 F. App'x 670 ( 2015 )

FILED
NOT FOR PUBLICATION APR 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SODA MOUNTAIN WILDERNESS No. 13-35438
COUNCIL; et al.,
D.C. No. 1:12-cv-00434-CL
Plaintiffs - Appellants,
v. MEMORANDUM*
UNITED STATES BUREAU OF LAND
MANAGEMENT,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted March 2, 2015
Portland Oregon
Before: PAEZ and IKUTA, Circuit Judges and TIGAR,** District Judge.
Soda Mountain Wilderness Council and several other environmental
organizations (collectively “Soda Mountain”) appeal the district court’s grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
summary judgment in favor of the Bureau of Land Management (“BLM”). Soda
Mountain challenges the validity of the BLM’s Environmental Assessment (“EA”),
and Finding of No Significant Impact (“FONSI”), for the proposed Sampson Cove
Forest Management Project (the “Project”). Soda Mountain alleges that the BLM
committed several violations of the National Environmental Policy Act (“NEPA”),
42 U.S.C. §§ 4321-4370(d), and the Federal Land Policy Management Act
(“FLPMA”), 43 U.S.C. § 1701 et seq. We have jurisdiction under 28 U.S.C. §
1291, and we affirm in part and reverse in part.
1. We review de novo a district court’s ruling on cross motions for summary
judgment. Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 970
(9th Cir. 2011). Judicial review of an agency’s compliance with NEPA and
FLPMA is governed by the Administrative Procedures Act, 5 U.S.C. §§ 701-06;
Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir. 2006).
Agency decisions may be set aside only if they are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” Id. (quoting 5 U.S.C. §
706(2)(A)). “Agency action is valid if the agency considered the relevant factors
and articulated a rational connection between the facts found and the choices
made.” Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010) (internal
quotation marks omitted).
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2. We agree with the district court that the BLM adequately assessed the
Project area’s wilderness characteristics. The EA relies on a 2006 wilderness
survey prepared by the BLM, which addressed the definitional elements of
wilderness in the Wilderness Act, 16 U.S.C. § 1131(c). The BLM’s decision to
rely on a report that was four years old when it issued the EA was reasonable.
Moreover, the BLM’s assessment of wilderness characteristics as described in the
2006 survey warrants our deference. See Native Ecosystems Council v. Weldon,
697 F.3d 1043, 1053 (9th Cir. 2012). In determining that the Project would not
impact the area’s wilderness characteristics, the BLM’s decision was neither
arbitrary nor capricious.
3. The BLM’s decision not to analyze the effects of the Project on the potential
expansion of the Cascade Siskiyou National Monument did not violate NEPA. An
EA is required to consider the “direct, indirect, and cumulative impacts” of an
action on the environment. Ctr. for Envtl. Law & Policy v. U.S. Bureau of
Reclamation (“Envtl. Law”), 655 F.3d 1000, 1006 (9th Cir. 2011). Here,
monument expansion was a “remote and highly speculative consequence[]” that
did not warrant analysis in the EA. See Ground Zero Ctr. for Non-Violent Action
v. U.S. Dep’t of the Navy, 383 F.3d 1082, 1090 (9th Cir. 2004). The district court
properly granted summary judgment on this issue.
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4. When determining whether an action requires an Environmental Impact
Statement (“EIS”), an agency must consider “[w]hether the action is related to
other actions with individually insignificant but cumulatively significant impacts.”
Envtl. Protection Info. Ctr. v. U.S. Forest Serv. (“EPIC”), 451 F.3d 1105, 1014
(9th Cir. 2006) (quoting 40 C.F.R. § 1508.27(b)(7)). “Projects that are ‘reasonably
foreseeable’ should be included in the cumulative effects analysis.” Id. (quoting 40
C.F.R. § 1508.7). However, “projects need not be finalized before they are
reasonably foreseeable.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668
F.3d 1167, 1178 (9th Cir. 2011).
5. Soda Mountain argues that the BLM violated NEPA because the EA’s
cumulative impact analysis did not include any discussion of the Cottonwood
Forest Management project. As the record reflects, this project was reasonably
foreseeable at the time the BLM issued the EA for the Project. See id. Six months
before the BLM issued the Project’s EA, an interdisciplinary team (“IDT”) decided
to “spread the due dates out more for the 2011 timber sales,” including changing a
“specialist due date” for the Cottonwood EA. This note indicates that the
Cottonwood project was certain to occur. Moreover, less than one month before
the BLM issued the Project’s EA, many elements of the Cottonwood project were
already firmly established. For example, a team meeting document includes the
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note that “[s]ilviculture prescriptions will be similar to” another project’s “with a
disease management component.” The document also states that determinations
regarding Northern Spotted Owl habitats would be complete within the next
month. Given the focus on details, implementation of the Cottonwood project was
not in question. Indeed, just two months after the BLM issued the Project’s EA, it
notified the public of the Cottonwood project. This timing is consistent with the
January and June 2010 IDT notes, and leaves little doubt that the Cottonwood
project was reasonably foreseeable in July 2010. Thus, we conclude that the
record demonstrates that the Cottonwood project was reasonably foreseeable.
Accordingly, we vacate the district court’s ruling on this issue and direct the court
to remand to the BLM for further consideration of its cumulative impact analysis
regarding the Cottonwood project, and whether that analysis affects its decision not
to issue an EIS.
6. Soda Mountain also argues that the EA’s cumulative impact analysis of the
Shale City project was inadequate. We disagree. The cumulative impact analysis
of the Shale City project was sufficient under NEPA because the EA contained
“some quantified or detailed information.” Kern v. U.S. Bureau of Land Mgmt.,
284 F.3d 1062, 1075 (9th Cir. 2002). In particular, the EA noted that the Shale
City project was of limited size, no new roads would be built in the project area,
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the project was not expected to affect special status wildlife species, and no direct
or indirect effects to aquatic habitat were anticipated as a result of the project.
7. The BLM did not violate NEPA by failing to include in the EA a cumulative
impact analysis of the Swinning Project (formerly known as Plateau Thin). As the
government argues, the record reflects that this project falls outside the Project’s
cumulative impacts analysis area. Because Soda Mountain does not argue that the
BLM’s determination of this area was arbitrary, the BLM was under no obligation
to address the cumulative impacts of the Shale City project. See Kleppe v. Sierra
Club, 427 U.S. 390, 412 (1976).
8. In the district court, Soda Mountain also argued that the EA’s cumulative
impact analysis was insufficient because it did not address the impact of grazing
allotment renewals in the Project area. The court, however, did not address the
issue. We therefore decline to address it. Instead, on remand, the district court
should address the issue in the first instance.
9. Soda Mountain also argues that the Project’s requirements for green tree
retention violate FLPMA because they are inconsistent with the governing RMP
and the Northwest Forest Plan (“NWFP”). See 43 C.F.R. § 1610.5-3; Or. Natural
Res. Council Fund v. Brong, 492 F.3d 1120, 1125 (9th Cir. 2007). We disagree.
As the government argues, the RMP provides an exception to the minimum
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requirement of sixteen green trees per acre on matrix lands for units where disease
is a problem. The Project incorporates that exception in providing for six to eight
green trees in diseased units. The Project’s regeneration harvest units also comply
with the green tree retention requirements in the NWFP. Finally, even if there
were a potential FLPMA violation, that circumstance would not have resulted in a
NEPA violation because whether a proposed action threatens a violation of another
law is relevant to deciding whether to prepare an EIS, EPIC, 451 F.3d at 1014, not
whether an EA is sufficient.
10. The BLM sufficiently analyzed the Project’s potential impact on bat
habitats. Under NEPA, the EA was required to “briefly provide[] evidence and
analysis for an agency’s finding regarding an environmental impact,” not “compile
an exhaustive examination of each and every tangential event that potentially could
impact the local environment.” Tri-Valley CARES v. U.S. Dep’t of Energy, 671
F.3d 1113, 1129 (9th Cir. 2012) (emphasis omitted). The EA meets that standard
in assessing the Project’s potential impact on bat habitats.
11. Finally, Soda Mountain argues that the BLM should have prepared an EIS.
Under NEPA, a federal agency must prepare an EIS for any proposal for any major
federal action “significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(C); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387
7
F.3d 989, 993 (9th Cir. 2004). If the agency concludes there is no significant effect
after preparing an EA, it may issue a FONSI. Envtl. Law, 655 F.3d at 1005. That
finding obviates the need for an EIS. Id. In reviewing the decision not to prepare
an EIS under the arbitrary and capricious standard, we must ensure that the agency
has taken a “hard look” at the consequences of its proposed action. See Ctr. for
Biological Diversity v. U.S. Dep’t of Interior, 623 F.3d 633, 636 (9th Cir. 2010).
Contrary to Soda Mountain’s arguments, the BLM did not fail to take a hard look
at the Sampson Cove project area’s “unique characteristics” or “highly
controversial” effects. 40 C.F.R. § 1508.27(b)(3)-(4).
12. The injunction previously issued by this court shall remain in effect pending
issuance of the mandate. On remand, Soda Mountain may apply to the district
court for further injunctive relief. The district court shall remand the record to the
BLM for further consideration of the cumulative impacts of the Cottonwood
project.
AFFIRMED in part; REVERSED in part; REMANDED.
The parties shall bear their own costs on appeal.
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FILED
Soda Mountain Wilderness Council, et al. v. U.S. Bureau of Land Mgmt., No. 13-
35438 APR 20 2015
MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, concurring in part, dissenting in part: U.S. COURT OF APPEALS
Because the Cottonwood project was not a “reasonably foreseeable” future
action at the time the Bureau of Land Management (BLM) prepared the Sampson
Cove Project environmental analysis (EA), see 40 C.F.R. § 1508.7, I dissent from
the majority’s ruling on that issue.
We do not “require the government to do the impractical.” Envtl. Protection
Info. Ctr. (EPIC) v. U.S. Forest Serv., 451 F.3d 1005, 1014 (9th Cir. 2006)
(internal quotation marks omitted). If an agency lacks enough information about
the parameters of a possible future project to “permit meaningful consideration,” it
need not address the project in the EA. Id.
Here, the majority’s claim that the BLM had enough information about the
Cottonwood project rests on two slim reeds that do not bear the weight placed on
them. The majority says “an interdisciplinary team” made a decision about the
Cottonwood project “[s]ix months before the BLM issued the Project’s EA.” Maj.
at 4. But the record shows only an internal agenda entitled “Ashland RA ID Team
Meeting” dated January 27, 2010, which contains one cryptic sentence: “In order to
spread the due dates out more for the 2011 timber sales, we changed the specialist
due dates for Cottonwood EA to November 2, 2010; to February 15, 2011 for Rio
Climax, and to June 1, 2011 for Sweeper.” That’s it. Nothing in this sentence
indicates the nature of the “specialist due date” for the Cottonwood EA, or what
the nature or parameters of the project might be.1
The majority’s only other support is an internal agenda for a “Cottonwood
IDT Meeting” dated June 30, 2010, with more shorthand entries that include no
information about the location or scope of the project. Based on this document, the
majority claims that “less than one month before the BLM issued the Project’s EA,
many elements of the Cottonwood project were already firmly established.” Maj.
at 4. But only a mind reader could figure that out. The majority points to an entry
stating, in full, “Silviculture prescriptions will be similar to Plateau Thin’s with a
disease management component.” But the next entry shows that even the
silviculture prescriptions had not been finalized: “Nate will need to do stand exams
to confirm and fine tune prescriptions and marking guidelines.” And the next
states: “Nate still needs to do field verification and stand exams field work this
summer in Cottonwood.” Further entries suggest that key issues were still under
“preliminary discussion.” For instance, with respect to recreation, the agenda
1
The majority states that this note indicates that the Cottonwood project was
“certain to occur.” Maj. at 4. The question, however, is not whether a project is
“certain to occur,” but rather whether there is enough information available about
the project to permit meaningful consideration of its cumulative impacts. See
EPIC, 451 F.3d at 1014.
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states: “[w]inter rec trails - no winter hauling,” “PCT - no cut 100' buffer,” and
“[r]oad construction?” With respect to botany, the agenda states, “few issues,
south part may be FRGE habitat.”
To the extent we can read anything into the agenda, it establishes that the
Cottonwood project was too preliminary to be “reasonably foreseeable.” See 40
C.F.R. § 1508.7. Indeed, nothing in either agenda refutes the BLM’s assertion that,
at the time the Project EA was issued, the BLM had not yet determined where the
Cottonwood Project would be located in a 45,370 acre area. The agendas are so
lacking in specific information that had the BLM titled the agenda notes “Project
Periwinkle IDT Meeting,” there would have been nary a hint that these preliminary
discussions would eventually become the Cottonwood project. And other than this
agenda for an internal team meeting, there’s not a single piece of information about
the Cottonwood project in the record—not a single clue as to its location or scope.
We have held that a future project was “reasonably foreseeable” when the
project has been formally proposed, see Ctr. for Envtl. Law & Policy v. U.S.
Bureau of Reclamation, 655 F.3d 1000, 1010 (9th Cir. 2011) (“We have define[d]
. . . reasonably foreseeable action[s], for which cumulative impacts must be
analyzed, to include proposed actions.” (alterations in original) (internal quotation
marks omitted)), or when the agency issues “a press release and Notice of Intent,”
3
N. Alaska Envtl. Ctr v. Kempthorne, 457 F.3d 969, 980 (9th Cir. 2006); see also
Ctr. for Envtl. Law & Policy, 655 F.3d at 1010 (“[W]e have previously held that an
action is not too speculative to qualify as a proposed action when the agency issues
a notice of intent to prepare an EIS.” (internal quotation marks omitted)). But we
have never held that a possible future project, documented only in notes from an
internal meeting listing action items related to future development of the project,
was “reasonably foreseeable” and “not too speculative.” See Jones v. Nat’l Marine
Fisheries Serv., 741 F.3d 989, 1000 (9th Cir. 2013) (“For any project that is not yet
proposed, and is more remote in time, by contrast, a cumulative effects analysis
would be both speculative and premature.” (internal quotation marks omitted)).
Here, the BLM did not issue a notice of intent to prepare an EIS, and the agenda
notes that do exist “are speculative and have not been reduced to specific
proposals.” See id.; see also EPIC, 451 F.3d at 1014–15 (concluding that the
Forest Service properly excluded a future project from its cumulative impacts
analysis because the project was “in the initial planning stage” and the parameters
of the project, including “specifics of the units (size and treatment prescription),”
had not been identified at the time of the EA). Indeed, the BLM did not begin the
scoping process, see 40 C.F.R. § 1501.7 (explaining that “scoping” is the process
“for determining the scope of issues to be addressed and for identifying the
4
significant issues related to a proposed action”), for the Cottonwood project until
more than two months after the Sampson Cove EA was issued.
The plaintiffs have the burden of proving that the BLM acted arbitrarily in
failing to include the Cottonwood project in its cumulative impact analysis, and
absent a showing of arbitrary action, we must assume that the BLM has exercised
its discretion appropriately. See 5 U.S.C. § 706(2)(A); Kleppe v. Sierra Club, 427
U.S. 390, 412 (1976). Here, the two agendas at issue—the only evidence adduced
by the plaintiffs—fail to show that any of the significant parameters of the
Cottonwood project were known at the time of the Project EA. We should
therefore defer to the BLM’s assertion that at the time it prepared the Sampson
Cove EA, the Cottonwood project was not far enough along for it to be reasonably
foreseeable. See Kleppe, 427 U.S. at 412. We have no authority to fault an agency
for failing to consider the cumulative impacts of contemplated future projects
before there is an “actual plan or proposal that was sufficiently well-defined to
permit meaningful consideration” of the cumulative impact of the project. See
Jones, 741 F.3d at 1001 (internal quotation marks omitted).
Because the BLM appropriately excluded the Cottonwood project from its
cumulative impact analysis, I would affirm the district court.
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