NOTICE: Ninth Cirсuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
FOREST CONSERVATION COUNCIL; Idaho Sportsmen Coalition;
Idaho Wildlife Federation; Howard Buettgenbach,
Plaintiffs-Appellants,
v.
Mike ESPY, Secretary of Agriculture; Ronald H. Brown,
Secretary of Commerce; U.S. Forest Service;
National Marine Fisheries Service,
Defendants-Appellees,
and
Boise Cascade Corporation; Mountain States Legal
Foundation, a nonprofit Colorado corporation on
behalf of its members,
Defendants-Intervenors-Appellees.
No. 94-35110.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 1, 1994.
Decided Nov. 25, 1994.
Before: WRIGHT, BEEZER and FERNANDEZ, Circuit Judges.
MEMORANDUM*
The Forest Conservation Council and others challenge the United States Forest Service decision to reconstruct, pave and partially relocate the South Fork Salmon River Road (SFSR Road). The district court dismissed the action on summary judgment. Forest Conservation Council v. Espy,
This dispute focuses on thе impact of the SFSR Road project on Snake River spring/summer chinook salmon and Snake River fall сhinook salmon. After thorough consideration, the Forest Service, the National Marine Fisheries Serviсe and the district court approved the project because it was expected to improve chinook salmon habitat. The road project has now been substantially completed. We see no reason to second-guess these determinations.
A. Standard of Review
We review de novo the district court's conclusion that the Forest Service complied with National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321, et seq. Northern Alaska Envtl. Ctr. v. Lujan,
B. Adequacy of Final EIS
The final EIS was not only adequate, but well-tailored to the goals of reducing long-term sediment delivery to the river and maintaining year-round mоtorized access. The Forest Service reasonably considered the significant direct, indirect and cumulative impacts of the SFSR Road project. See 40 C.F.R. Secs. 1508.25(c), 1508.8, 1508.7. It rationally determined that among the seven options considered, the preferred alternative would provide the second lowest risk of toxic spills, the most improvement in fish passage, an intermediate amount of access and the greatest reduction in sediment delivery.1
The Regional Forester's administrative decision does not shоw that the final EIS was inadequate in discussing the cumulative impacts of sediment. He ordered a biologicаl evaluation of sedimentary impacts to address heightened requirements arising from the Forest Servicе classification of chinook salmon as sensitive under chapter 2670 of the Forest Service Manual, not to address concerns about the adequacy of the final EIS under NEPA. And additional analysis of timber salеs was unnecessary because the Forest Service has delayed such sales until monitoring shows a sustainеd beneficial change in spawning habitat. See Thomas v. Peterson,
C. Supplementation of Final EIS
The 1992 listing of the salmon as threatened under the Endangered Species Act (ESA), 16 U.S.C. Sec. 1531, et seq., did not warrant a supplemental EIS under 40 C.F.R. Sec. 1502.9(c)(1)(ii). Rather, it required the consultation and evaluation process that the Forest Service and the Fisheries Service conducted. See 16 U.S.C. Sec. 1536; Thomas,
The ESA listings and biological reports relied on by the Forest Conservatiоn Council also did not require a supplemental EIS under 40 C.F.R. Sec. 1502.9(c)(1)(ii). The reports did not demonstrate a signifiсant change between the condition of Snake River chinook salmon in 1990 when the Forest Service сompleted the final EIS, and in 1993 when the Fisheries Service issued its biological opinion authorizing construction.2 After taking a hard look, the Forest Service reasonably concluded that the "existing documents adequately disclose[d] the environmental consequences on the chinook salmon and its habitat." See Marsh,
AFFIRMED.
Notes
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit exceрt as provided by Ninth Circuit Rule 36-3
Because the administrative record was sufficient to permit the district court to review the final EIS it properly excluded extra-record material and prohibited discovery. See Animal Defense Council v. Hodel,
The Fisheries Service required the Forest Service to implement several mitigation measures that had been more broadly discussed in the SFSR Road project final EIS. These meаsures were not "substantial changes in the proposed action ... relevant to environmental concerns" such that a supplemental EIS was required under 40 C.F.R. Sec. 1502.9(c)(1)(i)