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Neighbors of Cuddy Mountain and Idaho Sporting Congress Inc. v. United States Forest Service

March 04, 1998

NEIGHBORS OF CUDDY MOUNTAIN AND IDAHO SPORTING CONGRESS, INC., PLAINTIFFS-APPELLANTS,
v.
UNITED STATES FOREST SERVICE, AN AGENCY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT-APPELLEE, AND BOISE CASCADE CORPORATION, INTERVENOR-APPELLEE.



D.C. No. 96-0553-S-MHW

Appeal from the United States District Court for the District of Idaho Mikel H. Williams, Magistrate Judge, Presiding Argued and Submitted November 5, 1997--Seattle, Washington

Before: Betty B. Fletcher and Diarmuid F. O'Scannlain, Circuit Judges and William W Schwarzer,*fn* District Judge.

The opinion of the court was delivered by: Judge Fletcher

FOR PUBLICATION

SUMMARY

FLETCHER, Circuit Judge:

Plaintiffs seek to enjoin the sale of timber in the Cuddy Mountain area of Payette National Forest. They claim that the United States Forest Service (Forest Service), in determining whether such a sale could go forward, violated the National Forest Management Act (NFMA), 16 U.S.C. S 1600 et seq., and the National Environmental Protection Act (NEPA), 42 U.S.C. S 4321 et seq. They appeal the district court's grant of summary judgment in favor of the Forest Service, and appeal the district court's decision to allow Boise Cascade Corpora- tion to intervene as a defendant.

We have jurisdiction, 28 U.S.C. S 1291, and we reverse and remand to the Forest Service.

I.

Plaintiffs seek to enjoin the Grade/Dukes timber sale in the Cuddy Mountain area of Payette National Forest (Payette) in Idaho. Plaintiffs are two not-for-profit groups, Neighbors of Cuddy Mountain and Idaho Sporting Congress (collectively, Neighbors), who seek to protect the environment in the Cuddy Mountain area. Neighbors challenges the Forest Service's analysis of the potential environmental impacts of the sale, contending that the Forest Service failed to comply with the substantive requirements of the NFMA, and failed to comply with the procedural requirements of NEPA. The defendant is the Forest Service. Boise Cascade Corporation, the company that was awarded the Grade/Dukes timber contract, was allowed to intervene as a defendant.

The Forest Service began investigating the sale of timber from the Grade/Dukes area of Cuddy Mountain in the late 1980's. The evaluation of the impact of the Grade/Dukes sale contained in the first Environmental Impact Statement released in 1990, recommended that the Forest Service be allowed to proceed with the Grade/Dukes Timber Sale. See Grade/Dukes Timber Sale in Cuddy Mountain Roadless Area Final Environmental Impact Statement (1990) (hereinafter, 1990 EIS). The Forest Supervisor issued his first Record of Decision, to proceed with the logging project, on August 6, 1991.

Following a challenge by a number of groups, the Deputy Regional Forester reversed the Forest Supervisor's decision and ordered the Forest Service to supplement the 1990 EIS with additional information. Specifically, the Forest Service was directed to provide more thorough analyses of how the project would affect various species in the project area and to complete biological evaluations (or show why they were not needed) as to a number of species. Additionally, the Forest Service was directed to review the cumulative effects of other proposed timber sales.

A supplemental EIS was completed in 1994, entitled Grade/Dukes Timber Sale Final Supplemental Environmental Impact Statement (February 1994) (hereinafter, 1994 SEIS). A second Record of Decision, again approving the sale but with some modifications, was issued in February, 1994. The decision involves the sale of 18.8 million board feet of timber.

On April 6, 1994, Neighbors appealed the second decision. Neighbors was notified in February, 1995 that the Regional Forester denied this appeal. While the appeal was pending, but before Neighbors was notified of the denial of its appeal, the Forest Service selected a contractor, Boise Cascade Cor- poration, which began logging in August, 1994.

Neighbors commenced this action in district court in December, 1996. The magistrate Judge*fn1 granted Boise Cas- cade's motion to intervene as a matter of right, based on its status as the successful bidder in the Grade/Dukes sale. The court then granted summary judgment in favor of the defen- dant and intervenor, concluding that the Forest Service had analyzed sufficiently the impact of the proposed sale pursuant to the NFMA and NEPA. The defendant and intervenor also had asked the magistrate Judge to dismiss Neighbors' action, arguing that the case was moot and barred by the equitable doctrine of laches. At the time the suit was brought, the road into the Grade/Dukes area had already been built and 30 per- cent of the logging completed. The magistrate Judge declined to reach the laches issue because he had granted summary judgment in favor of the defendant and intervenor.

II.

We review de novo the district court's grant of summary judgment. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). Agency actions challenged under the NFMA are reviewed to determine if they were arbi- trary and capricious, an abuse of discretion, or not in accor- dance with the law. Id. This applies to an agency's interpretations of its own regulations, and, "his is especially true when questions of scientific methodology are involved." Inland Empire Public Lands Council v. U.S. Forest Serv., 88 F.3d 754, 760 (9th Cir. 1996).

For actions challenging the adequacy of an EIS, brought under NEPA, we employ a rule of reason to determine whether the EIS contains a "reasonably thorough Discussion of the significant aspects of probable environmental consequences." Lowe, 109 F.3d at 526. Under this standard, review consists only of insuring that the agency took a "hard look." Id.

The rule of reason analysis and the review for an abuse of discretion are essentially the same. See Marsh v. Oregon Nat- ural Resources ...


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