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Salmon River Concerned Citizens v. Robertson

filed: July 5, 1994.

SALMON RIVER CONCERNED CITIZENS, ET AL.; CALIFORNIA COALITION FOR ALTERNATIVES TO PESTICIDES; SAFE ALTERNATIVES FOR OUR FOREST ENVIRONMENT, INC.; NORTHCOAST ENVIRONMENTAL CENTER, INC., PLAINTIFFS-APPELLANTS,
v.
DALE ROBERTSON, CHIEF FORESTER, UNITED STATES FOREST SERVICE, ET AL.; DEPARTMENT OF AGRICULTURE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-91-00217-DFL. David F. Levi, District Judge, Presiding.

Before: Thomas Tang, Stephen S. Trott, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Tang.

Author: Tang

TANG, Senior Circuit Judge:

Appellants (collectively, "SRCC")*fn1 challenge the vegetation management policy for the Pacific Southwest Region adopted by the Chief Forester for the United States Forest Service ("Forest Service" or "Service"). In particular, SRCC challenges the environmental impact statement underlying the policy and issued under the provisions of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332. The district court granted summary judgment in favor of the Forest Service. SRCC appeals, arguing that the impact statement is inadequate under NEPA. The Forest Service counters that SRCC lacks standing to press its action, and that its claims lack merit. We find that SRCC has standing, but affirm the district court's summary judgment in favor of the Forest Service.

BACKGROUND

SRCC filed this action against the Forest Service on February 21, 1991, challenging both the Service's Region 5 Vegetation Management for Reforestation Final Environmental Impact Statement ("FEIS" or "Impact Statement") and Record of Decision ("ROD") of February 27, 1989. Pursuant to these documents, district foresters are authorized to use herbicides on National Forest lands in Northern California and portions of Oregon and Nevada.

The Forest Service is obliged under the National Forest Management Act of 1976 ("NFMA"), 16 U.S.C. § 1601 et seq., to prepare and implement land and resource management plans for our National Forests, one objective being to produce a continuous supply of timber for logging.*fn2 The Service implements this objective through reforestation.*fn3 Because competition from other plants often prevents achieving timber yield objectives, the Forest Service intervenes to assist the growth of trees through vegetation management.*fn4

The FEIS at issue in this case evaluates the use of herbicides as part of the vegetation management plan for the Pacific Southwest Region (Region 5). The lands claimed to be most likely affected are located in Northern California and the Sierra Nevada, totaling approximately six million of the total twenty million acres of National Forest System land in the Region.

The Impact Statement is the culmination of public and private efforts over the last twenty years. The previous environmental impact statement was published in 1974. As a result of increased public concerns about human health and safety, the environment, changes in applicable federal law, and the development of new information and technology, the process of updating that impact statement began in 1981. The process led to a revised impact statement that was published and released for public comment in mid-1983.

In 1984, while the revised impact statement was still under consideration, the Forest Service initiated a moratorium on herbicide use in Region 5. The impetus for this decision was two judicial decisions in which this Circuit precluded government agencies from relying solely on herbicide registration by the U.S. Environmental Protection Agency ("EPA") to verify herbicide safety for normal use. As a result, this Circuit required agencies to undertake a worst case analysis concerning the safety of herbicides. See Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir. 1984); Southern Oregon Citizens Against Toxic Sprays v. Clark, 720 F.2d 1475 (9th Cir. 1983), cert. denied, 469 U.S. 1028, 83 L. Ed. 2d 372, 105 S. Ct. 446 (1984).

In response to these two decisions and public comment, the Service supplemented the revised impact statement. With assistance from various consultants, the supplement was published and circulated for public comment in 1986. It included a worst case analysis of the risks from herbicide use to human health, soils, water quality, and wildlife.

The Forest Service published the FEIS now in issue in December 1988. The Impact Statement incorporates and responds to public comments to both the revised impact statement and the 1986 supplement. In doing so, the Impact Statement identifies and evaluates eight alternative vegetation management programs, each employing several methods of controlling vegetation, including mechanical, thermal, manual, chemical, and biological controls.*fn5 Each alternative emphasizes a specific objective, such as, cost-effectiveness, maximizing timber production, maximizing employment opportunities, preservation of nontimber resources, or minimizing or prohibiting the use of herbicides.

More pertinent to the issues before us, the FEIS evaluates the effect of each of the eight alternatives on, inter alia, soil and water quality, air quality, vegetation, wildlife, fisheries, human health and safety, cultural resources, and scenic quality. The Impact Statement also evaluates the socioeconomic effects of each alternative, including an analysis of economic efficiency and the cost of alternative approaches.

The evaluation of the effects on human health and safety considers risks to forest workers and to the public from the use of thirteen herbicides. The Forest Service accomplished its analysis by applying a "risk assessment" methodology. This methodology compares doses of an herbicide that people may get from applying the herbicide, or from being near an application site, with doses that produced no observable adverse effects in test animals and were considered safe in laboratory studies. Because various factors contributed to uncertainty in this process,*fn6 however, the Service employed several other analytical approaches to conduct a more comprehensive assessment of the risks to human health: hazard analysis, exposure analysis, and risk analysis.*fn7

The resulting risk assessment addresses the potential for herbicides to cause general systemic effects, heritable mutations, synergistic effects, cumulative effects, and effects on sensitive individuals. Unfortunately, missing or unavailable information regarding exposures or certain ill effects produced gaps in the data. These gaps are "evaluated in terms of [their] importance in determining human health risks . . . and in terms of the cost and delay required to supply the information." FEIS at 4-63. As a result, this aspect of the risk assessment includes an assessment of the effects of herbicide applications under three scenarios: a normal or realistic scenario, an abnormal or conservative scenario, and an accident or worst case scenario.*fn8

Based on these analyses, the FEIS recommends that the Forest Service adopt Alternative 1 as its vegetation management program, which seeks to "maximize flexibility for professional foresters to select the most appropriate treatments, based on site-specific conditions and other considerations, consistent with achieving land management objectives." Id. at 2-14. More specifically, this alternative "allows use of all methods to treat competing vegetation . . . adequate . . . to meet the timber yield objectives. . . . However, herbicides are to be used only when essential. . . ." Id. at 2-14-17.

The Regional Forester adopted the Impact Statement's recommendation, delegating to district foresters, for the most part, the discretion to apply herbicides at the project level.*fn9 On June 1, 1989, SRCC appealed the ROD in an administrative proceeding, securing a partial stay precluding the use of herbicides during the pendency of the appeal. On January 1, 1991, the Forest Service affirmed the Regional Forester's decision to select Alternative 1 as modified in the ROD, approved the FEIS, and denied SRCC's request for a new impact statement. Furthermore, the Service lifted the moratorium on its use of herbicides in Region 5, and quashed the stay. The Forest Service found the Regional Forester's decision to be neither arbitrary nor capricious. The Service also found that the FEIS adequately disclosed and discussed the potential risks to human health from the use of herbicides. It noted, in particular, that many of the issues and concerns raised by SRCC were site-specific concerns not within the scope of a programmatic document such as the FEIS.

SRCC then pursued its challenges of the FEIS and the ROD against the Forest Service in federal district court. Both parties moved for summary judgment, the Service contending that the complaint was insufficient in either establishing SRCC's standing, or merit requiring declaratory or injunctive relief. Although it rejected the defense that SRCC failed to establish its standing and that the case was not ripe, the district court granted the Forest Service's summary judgment, concluding that the Impact Statement, its risk assessment in particular, satisfied the requirements of NEPA. SRCC appeals that decision.

Discussion

I. Standing

A.

The district court's denial of summary judgment on the issue of standing is reviewed de novo. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513 (9th Cir. 1992).

B.

The Forest Service claims that SRCC lacks standing because it failed to demonstrate that it or its members will suffer concrete injury.*fn10 Specifically, the Forest Service claims that affidavits of individual members of SRCC fail to demonstrate that the members would be harmed by a specific project using herbicides.*fn11

SRCC focuses intently on the affidavits of Larry Glass and David M. Webb. Mr. Glass states that the members of SRCC enjoy a number of activities in Region 5, and asserts that these activities will be adversely affected by the vegetation management program recommended in the Impact Statement. He also states that many of the "members live adjacent to Region [5] national forests and on inholdings within those forests." Although much of his statement details the interests the appellant organizations have in the FEIS, he also addresses how the Impact Statement affects him personally:

As a member of CCAP, SAFE, the South Fork Mountain Defense Committee, and the Northcoast Environmental Center, I have personally used and enjoyed many of the national forests in Region V. I routinely visit the Six Rivers national forest, and my home is within the boundaries of the Shasta Trinity national forest. I visit the Tahoe and Klamath national forests on a regular basis. I take my twelve year old son and four year old daughter on these visits. We hike and camp in various areas of the forests, and my son and I fish in the rivers and streams of these forests, and the entire ...


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