League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton
752 F.3d 755
9th Cir.2014Background
- Snow Basin project spans ~29,000 acres in the Whitman-Wallowa NF; USFS planning since 2008 with a 2011 draft EIS and a 2012 FEIS.
- Approximately 170 acres of regenerative logging were removed from the FEIS; TMP was withdrawn in April 2012.
- A correction notice in July 2012 indicated group-selection treatment was considered for 130 of the 170 acres.
- LOWD plaintiffs sued, alleging NEPA and ESA violations; district court denied a preliminary injunction.
- On appeal, court reviews denial de novo, holding the FEIS has NEPA defects and that a supplemental EIS may be required.
- Court remands for district court to issue a preliminary injunction to preserve status quo while a supplemental EIS is completed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a supplemental EIS is required after TMP withdrawal. | LOWD argues the FEIS relies on the withdrawn TMP and fails to assess elk impacts without it. | Conona ughton contends the FEIS can stand and any need for further analysis is premature. | Likely requires a supplemental EIS focusing on elk without the TMP. |
| Whether cumulative impacts of the 130-acre logging proposal require analysis. | LOWD claims the 130-acre plan is an identified proposal mandating cumulative effects analysis. | USFS has not shown active preparation or a timetable for that action. | Not likely to prevail; no identified proposal with definite timing. |
| Whether the FEIS properly analyzes the cumulative effects of sediment and thermal stress on fish. | LOWD alleges poor linkage between sediment increases and thermal stress. | Project will not change stream temperatures; no further cumulative analysis required. | No predicative cumulative impact due to thermal baseline; claim rejected. |
| Whether the USFS/USFWS bull trout presence data are arbitrary or capricious under ESA/NEPA. | DATA are vague/older than 15 years; contrary conclusions ignored. | Evidence supports likely extirpation; agencies can rely on available data. | Not likely to succeed; determination not arbitrary or capricious. |
Key Cases Cited
- Marsh v. Ore. Natural Res. Council, 490 U.S. 360 (U.S. 1989) (NEPA requires hard look and substantial information)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (Four-factor test for preliminary injunctions; likelihood of irreparable harm and public interest)
- Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291 (9th Cir. 2003) (NEPA requires a hard look and full analysis)
- N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011) (Reasonableness and identification of future actions for cumulative effects)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (Hard look and substantive NEPA review; reliance on old data)
- Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009) (Injunctive relief in environmental cases; balancing interests)
- Wild Rockies v. Gates (Wild Rockies), No official reporter citation here in excerpt (9th Cir. 2013) (Injunction standards and scope; status quo considerations)
- Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) (Timeliness and scope considerations in injunctions)