The CCR Project is a forest management effort and timber sale affecting 11,742 acres in Mt. Hood National Forest. The United States Forest Service (USFS)
undertook the CCR Project in order to “provide forest products from specific locations within the planning area where there is a need to improve stand conditions, reduce the risk of high-intensity wildfires, and promote safe fire suppression activities.” The USFS plans to achieve these goals in part using a technique called “variable density thinning.” This process gives the agency flexibility in choosing which trees to cut, thereby allowing the USFS to create variation within an area of forest so that the stands “mimic more natural structural stand diversity.” After conducting an EA, the USFS determined that the CCR Project had no significant effects. It therefore issued a FONSI and did not prepare an EIS.
Bark, an Oregon-based environmental group, filed a complaint against the USFS, bringing claims under NEPA and the NFMA. The NEPA claim alleged that the USFS did not undertake a proper analysis of the environmental impacts of the project or of alternatives to the project. The district court granted summary judgment to the USFS on all claims. Bark quickly appealed.
JUDGE HIGGINSON The USFS’s decision not to prepare an EIS was arbitrary and capricious for two independent reasons.
First, the effects of the Project are highly controversial and uncertain, thus mandating the creation of an EIS. Substantial expert opinion presented by the Appellants during the administrative process disputes the USFS’s conclusion that thinning is helpful for fire suppression and safety.
The effects analysis in the EA did not engage with the considerable contrary scientific and expert opinion; it instead drew general conclusions such as that “[t]here are no negative effects to fuels from the Proposed Action treatments.” Appellants thus have shown a substantial dispute about the effect of variable density thinning on fire suppression. NEPA requires agencies to consider all important aspects of a problem.
Throughout the USFS’s investigative process, Appellants pointed to numerous expert sources concluding that thinning activities do not improve fire outcomes. In its responses to these comments and in its finding of no significant impact, the USFS reiterated its conclusions about vegetation management but did not engage with the substantial body of research cited by Appellants. This dispute is of substantial consequence because variable density thinning is planned in the entire Project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life. When one factor alone raises “substantial questions” about whether an agency action will have a significant environmental effect, an EIS is warranted.
The USFS also failed to identify and meaningfully analyze the cumulative impacts of the Project. The EA ostensibly analyzed the cumulative effects of the CCR Project, and included a table of other projects that were “considered in the cumulative effects analyses.” The cumulative impact analysis is insufficient because there is no meaningful analysis of any of the identified projects. The table gave no information about any of the projects listed; it merely named them. The section of the EA actually analyzing the cumulative effects on vegetation resources did not refer to any of these other projects. Nor are there any specific factual findings that would allow for informed decision-making. The EA simply concluded that “there are no direct or indirect effects that would cumulate from other projects due to the minimal amount of connectivity with past treatments” and that the Project “would have a beneficial effect on the stands by moving them toward a more resilient condition that would allow fire to play a vital role in maintaining stand health, composition and structure.” These are the kind of conclusory statements, based on “vague and uncertain analysis,” that are insufficient to satisfy NEPA’s requirements. The USFS’s analysis creates substantial questions about whether the action will have a cumulatively significant environmental impact. Therefore, this factor also requires the USFS to conduct an EIS.
CRITICAL THINKING:
What actions might the USFS have taken that could have led to a different outcome in this case?
ETHICAL DECISION MAKING:
Which stakeholders’ interests were furthered by the judge’s decision in the case? Which stakeholders’ interests were given less weight?