Oregon Wild v. Kent Connaughton
662 F. App'x 511
| 9th Cir. | 2016Background
- Plaintiffs challenged the Forest Service’s decision not to prepare a supplemental Environmental Impact Statement (EIS) for the Mount Ashland ski-area expansion under NEPA, seeking review under the APA for arbitrary and capricious action.
- NEPA and 40 C.F.R. § 1502.9(c)(1) require a supplemental EIS when significant new circumstances or information about environmental impacts arise after an EIS.
- Plaintiffs identified five categories of allegedly new information: (1) invalidation of Aquatic Conservation Strategy amendments, (2) new Total Maximum Daily Load (TMDL) limits for sediment, (3) new geological mapping by DOGAMI, (4) expiration of an Army Corps wetlands delineation, and (5) post-EIS climate-change documents.
- The Forest Service produced contemporaneous analyses from the 2004 EIS and subsequent administrative records showing it had considered relevant conservation objectives, site-specific geology, and wetlands; it also explained why later climate documents or mapping did not present significant new information.
- The district court granted summary judgment to the Forest Service on the NEPA claims; plaintiffs appealed. The Ninth Circuit affirmed, finding the Forest Service took a ‘‘hard look’’ and its determinations were not arbitrary or capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether invalidation of Aquatic Conservation Strategy amendments required a supplemental EIS | The invalidation reinstates pre-amendment objectives that the 2004 EIS did not adequately analyze for the expansion | The 2004 EIS and later record materials sufficiently addressed all nine pre-amendment objectives | No supplemental EIS required; Forest Service reasonably considered the objectives |
| Whether new TMDL limits for sediment trigger supplementation | New TMDL for Reeder Reservoir means the project could violate sediment limits and needs reassessment | Plaintiffs failed to show (or preserve) how the project would cause exceedances; the state DEQ did not deem the project incompatible | No supplementation; argument waived and, on merits, no incompatibility shown |
| Whether DOGAMI geological mapping required supplemental analysis | New mapping shows geology/landslide risk that the EIS did not consider | Forest Service used appropriate methodology and already conducted site-specific geological analysis showing no increased landslide risk | No supplemental EIS required; agency’s technical methods and conclusions reasonable |
| Whether expiration of Army Corps wetlands delineation requires supplementation | Expired delineation may differ materially from a new delineation, affecting impacts | Supplemental analysis only required if a new delineation would differ significantly; record indicates alpine setting makes substantial differences unlikely | No supplementation required; plaintiffs did not show significant new information |
| Whether new climate-change documents require supplementation | Post-EIS climate science and guidance materially change projected impacts to ski-area operations and environment | Each document was shown by the Forest Service to be irrelevant or not to present significant new information; agency expertise warrants deference | No supplemental EIS required; agency explanation reasonable and entitled to deference |
Key Cases Cited
- Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092 (9th Cir.) (agency refusal to supplement reviewed under APA arbitrary-and-capricious standard)
- Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113 (9th Cir.) (determination whether new information requires supplementation implicates agency expertise)
- League of Wilderness Defs. v. Allen, 615 F.3d 1122 (9th Cir.) (highest deference for agency technical analyses of complex scientific data)
- Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095 (9th Cir.) (agency must take a "hard look"; standard for reversible error)
- Pac. Coast Fed’n of Fishermen’s Ass’ns v. Nat’l Marine Fisheries Servs., 482 F. Supp. 2d 1248 (W.D. Wash.) (decision invalidating certain Aquatic Conservation Strategy amendments)
- WildEarth Guardians v. EPA, 759 F.3d 1064 (9th Cir.) (arguments raised only in reply brief are waived)
- South Fork Band Council of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 588 F.3d 718 (9th Cir.) (regarding consultation and agency obligations under NEPA)