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Conservation Congress v. United States Forest Service

United States District Court, E.D. California

March 21, 2014

CONSERVATION CONGRESS, Plaintiff,
v.
UNITED STATES FOREST SERVICE, Defendant. and SIERRA PACIFIC INDUSTRIES, Defendant Intervenor.

ORDER

EDMUND F. BRENNAN, District Judge.

Plaintiff Conservation Congress sues defendant United States Forest Service and defendant-intervenor Sierra Pacific Industries, alleging that the Forest Service, in approving a challenged timber project, failed to adequately consider that project's impacts on the habitat of the northern spotted owl. Plaintiff's action arises under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq.

Plaintiff now moves for a temporary restraining order enjoining the project. The parties stipulated to waive oral argument (originally set for Wednesday, March 19, 2014) and instead submitted the motion on the papers. (ECF No. 84.) Having considered the parties' submissions and the record, the court will deny the motion, for the reasons set forth below.

I. BACKGROUND

A. Statutory Background

The court begins by noting relevant aspects of NEPA and its implementing regulations, in order to provide context for the discussion that follows.

NEPA is intended to "ensure[] that federal agencies are informed of environmental consequences before rendering decisions and that the information is available to the public." Okanogan Highlands Alliance v. Williams , 236 F.3d 468, 473 (9th Cir. 2000). "NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756-57 (2004).

Under NEPA, federal agencies must prepare an Environmental Impact Statement ("EIS") prior to undertaking "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The EIS must address

(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id.

Regulations promulgated under NEPA provide that an EIS must consider "[i]mpacts, which may be (1) [d]irect; (2) indirect; [or] (3) cumulative." 40 C.F.R. § 1508.25(c).[1] A "direct effect" is one "caused by the action and occur[ring] at the same time and place." 40 C.F.R. § 1508.8(a). An "indirect effect" is both:

caused by the action and... later in time or farther removed in distance, but [is] still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

40 C.F.R. § 1508.8(b). A "cumulative impact" is:

the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.

40 C.F.R. § 1508.7 (emphasis added).

A cumulative impacts analysis "must be more than perfunctory; it must provide a useful analysis of the cumulative impacts of past, present, and future projects.'" Kern v. U.S. Bureau of Land Mgmt. , 284 F.3d 1062, 1075 (9th Cir. 2002) (quoting Muckleshoot Indian Tribe v. U.S. Forest Serv. , 177 F.3d 800, 810 (9th Cir. 1999)). Nevertheless, "none of NEPA's statutory provisions or regulations requires the Forest Service to affirmatively present every uncertainty in its EIS." The Lands Council v. McNair , 537 ...


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