CASCADIA WILDLANDS, an Oregon non-profit corporation; Oregon Wild, an Oregon non-profit corporation; Umpqua Watersheds, Inc., an Oregon non-profit corporation, Plaintiffs-Appellants, v. BUREAU OF INDIAN AFFAIRS, an agency of the United States Department of the Interior, Defendant-Appellee, and Coquille Indian Tribe, a federally recognized Indian tribe, Intervenor-Defendant-Appellee.
No. 14-35553
United States Court of Appeals, Ninth Circuit
Filed Sept. 11, 2015
1105
Argued and Submitted Feb. 5, 2015.
Sam Hirsch, Acting Assistant Attorney General, Stuart Gillespie, Brian C. Toth and Ellen J. Durkee (argued), Environmental & Natural Resources Division, Department of Justice, Washington, D.C.; Mary Anne Kenworthy, Office of the Regional Solicitor, Department of the Interior, Portland, OR, for Defendant-Appellee.
Edmund C. Goodman (argued), Hobbs, Straus, Dean & Walker, LLP, Portland, OR; Brett V. Kenney, North Bend, OR, for Intervenor-Defendant-Appellee.
Before: RAYMOND C. FISHER, CARLOS T. BEA and MARY H. MURGUIA, Circuit Judges.
OPINION
FISHER, Circuit Judge:
Cascadia Wildlands, Oregon Wild and Umpqua Watersheds (collectively, Cascadia) challenge the Bureau of Indian Affairs’ (BIA) approval of the Middle Forks Kokwel timber sale (the Kokwel Project), a plan by the Coquille Indian Tribe (the Tribe) to harvest 268 acres of timber in the Coquille Forest in southwest Oregon. Cascadia argues the BIA violated the National Environmental Policy Act (NEPA),
The district court granted summary judgment to the BIA and the Tribe on both claims.1 We have jurisdiction under
BACKGROUND
The Coquille Forest comprises 5,410 acres of land along the southwest Oregon coast that was restored to the Coquille Indian Tribe in 1996 by an amendment to the Coquille Restoration Act. See
In 2011 and 2013, the BIA approved two different proposals by the Tribe to harvest timber in the Coquille Forest. In 2011, the BIA approved the Alder/Rasler Project, which called for 270 acres of regeneration harvest, 52 acres of density management and 56 acres of commercial thinning between 2011 and 2016.2 The purposes of the Alder/Rasler Project were to generate money for the Tribe and manage forest growth. The Alder/Rasler Project also called for the construction of 3.21 miles of roads in the forest. The BIA and the Tribe conducted an Environmental Assessment (EA), which estimated the project would create between 44 and 220 jobs and over $10.5 million in revenue through the sale of 22.44 million board feet of timber.
The EA also found the Alder/Rasler Project likely would adversely affect the northern spotted owl, an endangered species living in the Coquille Forest, by removing 270 acres of suitable habitat. The EA noted, however, that there were no occupied owl habitats within the project area, and no owl nest sites within 1.5 miles of the project area. Based on the EA, the BIA issued a Finding of No Significant Impact (FONSI) and approved the project in February 2011, without conducting an Environmental Impact Statement (EIS).
In 2013, the BIA approved a second project—the Kokwel Project—to conduct an additional 268 acres of regeneration harvest, 221 acres of commercial thinning and 42 acres of density management in the Coquille Forest over 10 years. The Kokwel Project was planned on land adjacent to, and overlapping with, the Alder/Rasler Project. The primary purpose of the Kokwel Project was to generate money for the Tribe. The BIA and the Tribe conducted an EA, which estimated the Kokwel Project would create 242 direct jobs, 532 indirect jobs and over $8 million in revenue through the sale of 13.9 million board feet of timber.
FWS performed a Biological Assess
In the EA, the BIA and the Tribe agreed with the FWS that the Kokwel Project was likely to adversely affect the northern spotted owl by removing 268 acres of suitable habitat. The EA then analyzed the cumulative impact of the Kokwel Project by comparing it against an environmental baseline, or “No Action Alternative.” The No Action Alternative described the “existing condition and the continuing trends,” assuming “[o]ngoing activities would continue to occur on existing projects,” including “other projects covered by earlier decision records.” The EA explained that it would aggregate other projects into the No Action Alternative, rather than individually discuss them:
The following descriptions of the No Action Alternative and the Proposed Action assume the combined relevant effects of all past actions. It is not necessary to individually identify or catalog these past actions as the description of the affected environment incorporates all those actions. For the cumulative effects analysis the description of the potential resulting impacts is the cumulative effect of all past, present and reasonably foreseeable actions. Reasonably foreseeable future actions are assumed to be the same for the No Action as well as the Proposed Action. Stands ... are expected to be selectively harvested approximately every 60 to 80 years.... Current timber management on the surrounding private land is more intensive and occurs on a larger scale at rotations as short as 30 to 40 years.... Table 8 lists treatments proposed for the foreseeable future on [the Tribe‘s] lands in the analysis area that will be considered in the following resource-specific cumulative impact discussions. Other incidental use of the [Tribe‘s] lands such as recreational use is expected to continue at rates similar to those of the past ten years.
Table 8 listed only one treatment proposed for the foreseeable future: the Alder/Rasler Project. The EA‘s resource-specific cumulative impact discussions did not individually analyze the impact of any specific past, present or reasonably foreseeable action. With respect to the northern spotted owl, the EA said the Middle Fork Coquille River watershed, which contains
Based on these data, the EA concluded the “cumulative effects” from the Kokwel Project and other “foreseeable projects” “would not appreciably diminish spotted owl suitable habitat.” It explained, “[m]ost of the owl core areas occur on [Bureau of Land Management] lands within the watershed; these areas are not expected to change substantially over time.” Furthermore, though the project would have an incremental impact of reducing habitat by seven percent, the EA also found, “[o]verall, the habitat would benefit from opening of the canopy, encouraging development of a multi-layered canopy and encouraging tree and understory growth.”
Relying on the EA, the BIA in February 2013 issued a FONSI and approved the project, without conducting an EIS. Cascadia challenged the BIA‘s decision in the district court, and the court granted summary judgment to the BIA and the Tribe. Cascadia appeals.
STANDARD OF REVIEW
We review the district court‘s grant of summary judgment de novo. See Mont. Wilderness Ass‘n v. Connell, 725 F.3d 988, 994 (9th Cir. 2013). We review Cascadia‘s NEPA and CRA claims under the Administrative Procedures Act (APA). See id. Under the APA, an agency decision will be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
DISCUSSION
I. NEPA
Cascadia argues the BIA and the Tribe violated NEPA because they did not adequately consider the cumulative impacts of the Kokwel Project in light of the Alder/Rasler Project. “The purpose of NEPA is to require disclosure of relevant environmental considerations that were given a ‘hard look’ by the agency, and thereby to permit informed public com
NEPA requires the preparation of an EIS for “major Federal actions significantly affecting the quality of the human environment.”
An EA is a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact.”
To determine whether a proposed action will significantly impact the human environment, NEPA directs agencies to consider “[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts.”
“[T]he general rule under NEPA is that, in assessing cumulative effects, the [agency] must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.” Lands Council, 395 F.3d at 1028. An agency, however, may satisfy NEPA by aggregating the cumulative effects of past projects into an environmental baseline, against which the incremental impact of a proposed project is measured. See Castaneda, 574 F.3d at 666-67; League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv. (LOWD), 549 F.3d 1211, 1216–18 (9th Cir. 2008).
Cascadia concedes the cumulative impact of past actions may be aggregated. It contends, however, that the BIA was not permitted to aggregate the Alder/Rasler Project, because it is not a past action, but a reasonably foreseeable future action.5 Castaneda and LOWD did not reach that question. Both cases involved disputes regarding the aggregation of past projects. See Castaneda, 574 F.3d at 666 (“WildWest complains the cumulative impact statements do not contain discussion of prior projects on an individual basis.“); LOWD, 549 F.3d at 1216 (“LOWD contends that the cumulative effects analysis regarding past timber sales is insuffi
Agencies, however, have “discretion in deciding how to organize and present information” in environmental assessments. See Mont. Wilderness Ass‘n, 725 F.3d at 1002. LOWD explained:
[O]ur law ... requires us to defer to an agency‘s determination in an area involving a high level of technical expertise ... [and] we are not free to impose on the agency our own notion of which procedures are best or most likely to further some vague, undefined public good.... Accordingly, to the extent that
40 C.F.R. § 1508.7 does not explicitly provide otherwise, the Forest Service is free to consider cumulative effects in the aggregate or to use any other procedure it deems appropriate. It is not for this court to tell the Forest Service what specific evidence to include, nor how specifically to present it.
LOWD, 549 F.3d at 1218 (citations, alterations and internal quotation marks omitted).
That reasoning applies to projects that have been approved, following an independent environmental assessment under NEPA, just as it applies to projects that have been completed. Thus,
Our role is to ensure that the agency takes a “hard look” at the cumulative environmental consequences of the proposed project, and provides a clear explanation of its analysis to enable informed public comment on the project and possible alternatives. See Lands Council, 395 F.3d at 1027. An agency can take a “hard look” at cumulative impacts either by individually discussing a previously approved project, or incorporating the expected impact of such a project into the environmental baseline against which the incremental impact of a proposed project is measured. Under either approach, what is important is that the agency make clear it has considered the “incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.”
Our holding that the aggregation of future projects can be permissible under NEPA does not require the public to “blindly” accept an agency‘s “conclusory assertions,” as Cascadia argues. We are mindful that one of the “twin aims” of NEPA is to “ensure[] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). When an agency chooses to aggregate reasonably foreseeable projects, it must be “clear from the record that the cumulative effects of the prior proposals were considered by both the drafting and approving agencies.” Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 442 (5th Cir. 1981). Here, the Kokwel EA identified the Alder/Rasler Project as a reasonably foreseeable project that would be considered as part of the baseline, i.e., the “No Action Alternative.” The expected impacts of the Alder/Rasler Project, in turn, were set forth in detail in the Alder/Rasler EA.
Our holding also is in accord with two circuits that have addressed this question. See Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 70 (D.C. Cir. 1987) (“It makes sense to consider the ‘incremental impact’ of a project for possible cumulative effects by incorporating the effects of [previously
Cascadia argues that, even if it is permissible to aggregate previously approved projects into an environmental baseline, the Kokwel EA did not actually aggregate the impacts of the Alder/Rasler Project. We disagree. The Kokwel EA explained it measured the impacts of the Kokwel Project against a baseline that assumes “[o]ngoing activities would continue to occur on existing projects,” including “other projects covered by earlier decision records.” It is undisputed the Alder/Rasler Project was covered by an earlier decision record—the Alder/Rasler EA. The Kokwel EA later said, “[f]or the cumulative effects analysis the description of the potential resulting impacts is the cumulative effect of all past, present and reasonably foreseeable actions.” It said “[r]easonably foreseeable future actions are assumed to be the same for the No Action as well as the Proposed Action,” and “Table 8 lists treatments proposed for the foreseeable future on [the Tribe‘s] lands in the analysis area that will be considered in the following resource-specific cumulative impact discussions.” Table 8, in turn, lists only one project—the Alder/Rasler Project. Thus, the Kokwel EA explained the Alder/Rasler Project was a “treatment[] proposed for the foreseeable future,” which was “assumed to be the same” for both the No Action and the Proposed Action, i.e., assumed as part of the baseline against which the incremental impact of the Kokwel Project was measured.
To be sure, when the EA set forth data regarding the incremental impact of the Kokwel Project on specific resources, it did not restate that the Alder/Rasler Project was incorporated into the baseline. With respect to the northern spotted owl, the EA provided a table showing the Kokwel Project would reduce habitat within the “home ranges” (1.3 miles) of four historic northern spotted owl sites from 2,985 to 2,718 acres. The EA did not specifically explain how it calculated the pre-harvest acreage of 2,985, or expressly say its calculation included the Alder/Rasler Project. Similarly, with respect to road construction, the EA said there were 543 miles of existing roads in the “Action Area,” resulting in a road density of 4.73 mi/mi², and the Kokwel Project would create 2.92 miles of new road, which would not measurably increase the road density. Again, the EA did not specifically explain how it calculated the pre-harvest mileage of roads, or expressly say its calculation included the Alder/Rasler Project.
Although the EA‘s explanation of its methodology could have been clearer, to repeat each time the EA presented baseline data for an individual resource that the Alder/Rasler Project was, in fact, considered would have been redundant and therefore unnecessary, particularly in a document meant to be “concise” and
II. Coquille Restoration Act
Cascadia argues the Kokwel Project violates the CRA because the pro
First, the Coos Bay Plan expressly establishes an “objective” of compliance with recovery plans, not a “standard” or “guideline.” The Coos Bay Plan was adopted in 1995, a year before Congress amended the CRA to require compliance with applicable forest plan “standards and guidelines.” Had Congress intended the CRA to require compliance with the “objectives” of
Second, another federal forest plan covering the Coquille Forest, the Northwest Forest Plan (NFP), expressly establishes “Standards and Guidelines for Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl.”9 The NFP governs over 24 million acres of federal land in the Northwest, including the Coquille Forest. The NFP was adopted in 1994 largely in response to concern over the survival of the northern spotted owl. The NFP defines “standards and guidelines” as “[t]he rules and limits governing actions, and the principles specifying the environmental conditions or levels to be achieved and maintained.” Congress is presumed to have been aware of the NFP when it adopted the CRA. See Dir., OWCP v. Perini N. River Assocs., 459 U.S. 297, 319-20 (1983). That Congress required compliance with the “standards and guidelines” of applicable federal forest plans two years after the largest such plan specifically listed “standards and guidelines” suggests Congress did not intend to use the term in a “generic” way, as Cascadia contends. On the contrary, the more plausible inference is that Congress intended “standards and guidelines” to refer specifically to identified “standards and guidelines” in applicable federal forest plans.
Third, we reject Cascadia‘s argument that the Coos Bay Plan‘s “objectives”
AFFIRMED.
RAYMOND C. FISHER
CIRCUIT JUDGE