Tuesday, December 5, 2006
Ninth Circuit Orders Environmental Analysis for Logging Project
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals yesterday enjoined further activity on an Oregon logging project until a revised environmental analysis is prepared, even though all of the logging was completed a year ago, and only “minor clean-up” remains to be done.
In the split decision, the court also reversed summary judgment granted in favor of the U.S. Bureau of Land Management in the action brought by the Oregon Natural Resources Council and others challenging the environmental assessment prepared for the “Mr. Wilson” project in the Glendale Resource Area of the Medford BLM District.
“The Mr. Wilson project is not finished, and the absence of a proper Environmental Assessment affected, or at least could have affected, not only the logging decision but also the postlogging mitigation decision,” Senior Judge Alfred T. Goodwin wrote for the majority. “The absence of the appropriate ‘hard look’ analysis thus has present consequences.”
The BLM issued an environmental assessment for the project in July 2001. In October 2001, the BLM issued a finding of “no significant impact” on the human environment, obviating the requirement of a detailed environmental impact statement under the National Environmental Policy Act.
Environmental groups sued to halt the project, claiming the EA failed to sufficiently consider the cumulative impact of the project in conjunction with other past, present, and reasonably foreseeable projects on timber harvest levels, and on the northern spotted owl’s critical habitat.
The district court denied plaintiffs’ application for a preliminary injunction, and granted summary judgment to the BLM in June 2004.
In August 2004, the plaintiffs moved the district court for relief from the summary judgment, citing two subsequent Ninth Circuit decisions. The district court denied the requested relief, and entered final judgment in February 2005.
The plaintiffs moved for an injunction pending appeal, which the district court denied, saying:
“Although plaintiffs have raised a serious question for litigation on the merits, this relatively small project is nearing completion, with only commercial thinning operations remaining on lands allocated for timber production.”
The plaintiffs appealed and the BLM argued that the action was moot because all of the timber harvesting had been completed, and there remained no project activities that could cause a significant environmental impact.
Goodwin disagreed, citing prior Ninth Circuit rulings:
“When evaluating the issue of mootness in NEPA cases, we have repeatedly emphasized that if the completion of the action challenged under NEPA is sufficient to render the case nonjusticiable, entities ‘could merely ignore the requirements of NEPA, build its structures before a case gets to court, and then hide behind the mootness doctrine. Such a result is not acceptable.’”
“Although the harvested trees cannot be restored, ‘[b]ecause harm to old growth species may yet be remedied by any number of mitigation strategies,’ this case is not moot.”
Judge Susan P. Graber concurred.
Judge A. Wallace Tashima dissented, saying:
“All of the logging and hauling of trees at the BLM’s Mr. Wilson logging project was completed in September 2005, more than one year ago. Our cases are clear that, in these circumstances, no effective relief is available under NEPA.”
“Here, our injunction will not help any public officials make decisions because those decisions have already been made —there is no proposed action pending. Here, surely, requiring the preparation of a new EA is an exercise of form over substance and all it can do is rationalize a decision, not only already made, but already carried out.”
The case is Oregon Natural Resources Council v. U.S. Bureau of Land Management, 05-35245.
Copyright 2006, Metropolitan News Company