Justia Federal District Court Opinions

This appeal is from a summary judgment and injunction entered against the Forest Service for failing to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4331-4332 (1976), in preparing an environmental impact statement ("EIS") on a Forest Service decision to allocate National Forest System land among three management categories. Four principal issues are raised. Did the district court err in holding that:

(1) the Final EIS did not contain an adequate discussion of the site-specific environmental consequences of the allocations?

(2) the Final EIS did not consider an adequate range of alternatives?

(3) the Forest Service did not give the public an adequate opportunity to comment on the proposed allocations?(4) the National Forest Management Act, 16 U.S.C. § 1604 (1976), did not exempt the disputed allocations from review under the National Environmental Policy Act?

We affirm in part and reverse in part.

FACTS

This litigation concerns how the Forest Service intends to manage 62 million acres of the National Forest System. The National Forest System contains approximately 190 million acres, and includes 154 National Forests and 19 National Grasslands. The Forest Service is charged additionally with administering a large portion of the National Wilderness Preservation System ("NWPS"), which currently includes more than 19 million acres. The latter system was created by Congress in 1964 to provide statutory protection for areas that are relatively untouched by humankind. 16 U.S.C. § 1131 (1976).1 Under the mandate of the enabling legislation, the Secretary of Agriculture is directed to recommend to Congress "primitive" areas that should be added to the Wilderness System. Id. at § 1132. Other legislation also obliges the Secretary to manage National Forest land to foster "multiple-use" of the system's resources, including recreation, lumbering, mining, grazing and commercial fishing.2

In 1972, the Forest Service made an abortive attempt to devise a national planning document for the management of "roadless areas" within the National Forest System. Dubbed "Roadless Area Review and Evaluation (RARE I)," this effort ended when a federal court enjoined development pursuant to the plan until the Forest Service completed an EIS. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir. 1973).

In 1977, the Forest Service made a second attempt to evaluate programmatically the roadless areas in the National Forest System. This project, named RARE II, inventoried all roadless areas within the National Forest System and allocated each area to one of three planning categories: Wilderness, Further Planning and Nonwilderness. Areas designated as Wilderness were to be recommended to Congress for inclusion in the NWPS. A Further Planning designation meant that an area would be protected pending completion of unit management plans which would consider whether to recommend the area for inclusion in the NWPS. No controversy surrounds the Wilderness or Further Planning designations. The parties here dispute what a Nonwilderness designation means.

A draft EIS on the RARE II project was released to the public on June 15, 1978. The document consisted of a national planning description and twenty state and geographic area supplements. It identified ten alternative allocation methods which resulted in different allocations between the three planning categories, but did not tentatively endorse any of the alternatives as a Proposed Action. Each alternative reflected a different combination of decisional criteria. The criteria included Forest Service resource planning goals, wilderness attributes, public accessibility to wilderness areas, public comment and the economic effects of Wilderness classification. See Appendix, infra.

Public comment was solicited concerning the decisional criteria, the allocations that resulted from the alternatives, and possible alternative approaches not considered in the draft. The draft EIS prompted over 264,000 comments.

The Final EIS was filed on January 4, 1979. It identified for the first time the Forest Service's Proposed Action and called for allocating 15 million acres of RARE II lands to Wilderness, 10.8 million acres to Further Planning, and 36 million acres to Nonwilderness. See Forest Service, U. S. Dep't of Agriculture, RARE II Final Environmental Impact Statement, Roadless Area Review and Evaluation 37 (1979) (hereinafter cited as "RARE II Final EIS"). The Proposed Action was not one of the alternatives considered in the draft EIS, but represented an amalgam of all the decisional criteria considered in the draft EIS alternatives. See Appendix, infra. The percentage allocation produced by the Proposed Action was within the range of percentage allocations produced by the draft EIS alternatives, but was not roughly identical to any one set of allocation percentages considered in the earlier alternatives. See Table # 1, infra.

The Final EIS, unlike the earlier draft, was circulated only to Congress and to affected federal and state agencies. Its recommendations were sent to the President on May 2, 1979, who approved them after making some minor changes in the allocations. The wilderness recommendations were subsequently transmitted to Congress.

On July 25, 1979, the State of California brought action in federal district court against the Secretary of Agriculture and the Forest Service, alleging violations of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331-4332 (1976),3 the Multiple-Use Sustained-Yield Act ("MUSY"), 16 U.S.C. § 528 (1976), and the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604 (1976). The National Resources Defense Council, Trinity County, and the Clear Creek Legal Defense Fund were granted permissive intervention on the plaintiffs' side. (These parties, along with the State of California, will henceforth be referred to collectively as "California.") The district court denied a motion by Webco Lumber Company ("Webco") to intervene as of right, but allowed permissive intervention on defendants' side to Webco, as well as to the National Forest Products Association and the Counties of Del Norte, Shasta and Siskiyou. (These parties, along with the Secretary of Agriculture and the Forest Service, will henceforth be referred to collectively as "Forest Service.")

California specifically challenged the Forest Service decision to designate forty-seven RARE II areas in California as Nonwilderness. On January 8, 1980, the district court granted California's motion for summary judgment. Without reaching the MUSY and NFMA claims, the court held that the RARE II Final EIS was inadequate to support the Nonwilderness designations of the disputed areas and therefore violated NEPA. It ruled that the Final EIS was deficient in three respects: (1) the EIS did not contain sufficient site-specific data to support the Nonwilderness designations; (2) the EIS did not consider an adequate range of alternatives; and (3) the Forest Service did not give the public an adequate opportunity to comment on the RARE II program.

Pursuant to these holdings, the district court enjoined the Forest Service from taking any action that might change the wilderness character of the disputed areas in California until it filed an EIS that satisfied NEPA's requirements and considered the impact of the decision upon the wilderness characteristics of these areas. The court excepted from its order activities that had been previously analyzed in an EIS apart from the RARE II Final EIS. The court also enjoined the Forest Service from relying upon the RARE II Final EIS in preparing forest plans pursuant to the NFMA.

The Forest Service appeals from the summary judgment and injunction. Webco appeals, inter alia, from the district court's denial of its motion to intervene as of right.

DISCUSSION

I. Did the RARE II Final EIS adequately examine the site-specific impact of the Proposed Action?

The district court concluded that the RARE II Final EIS failed to consider adequately the site-specific impact of the RARE II decision. Specifically, the district court cited the following deficiencies:

-The EIS does not comprehensively describe any of the RARE II areas, limiting its evaluation per area to two pages of summary index numbers that do not identify the areas' unique characteristics (e.g., landmarks, rare and endangered species);

-No attempt is made to assess the wilderness value of each area (e.g., tourism, sales of wilderness oriented recreational equipment, conservation of wildlife and flora populations, soil conservation and stability, watershed protection, clean air and water);

-The EIS does not discuss the impact of Nonwilderness designations upon each area's wilderness characteristics and values (e.g., primary and secondary impacts, methods of mitigation, and environmental damage);

-The EIS does not consider the effect of development on future opportunities for wilderness classification (i.e., the effect upon the benchmark characteristics identified in the Wilderness Act);

-The EIS does not attempt to balance economic benefits of Nonwilderness designation for an area against the consequent environmental loss.

California v. Bergland, 483 F.Supp. 465, 483-87 (E.D.Cal.1980).

The Forest Service complains that the degree of detail required by the district court is unwarranted, given the tentative nature of the RARE II decision and the national scope of its impact. The central contention is that a programmatic EIS describing the first step in a multi-step national project need not contain the type of detailed site-specific information normally contained in an EIS prepared for a more narrowly focused project such as a dam or a federal mineral lease.

The adequacy of an EIS depends upon whether it was prepared in observance of the procedure required by law. 5 U.S.C. § 706(2)(D) (1976); Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974) (en banc). Under this standard of review, we employ a "rule of reason" that inquires whether an EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). This standard is not susceptible to refined calibration. It instead requires a reviewing court to make a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and informed public participation. Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 552 (9th Cir. 1977) (per curiam); Trout Unlimited, Inc., 509 F.2d at 1283. This standard of review, however, does not authorize a reviewing court to substitute its judgment for that of the agency concerning the wisdom or prudence of a proposed action. Once satisfied that a proposing agency has taken a "hard look" at a decision's environmental consequences, the review is at an end. Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 2730 n.21, 49 L.Ed.2d 576 (1976).

The detail that NEPA requires in an EIS depends upon the nature and scope of the proposed action. See Aberdeen & Rockfish R. R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 322, 95 S.Ct. 2336, 2356, 45 L.Ed.2d 191 (1975). The standards normally applied to assess an EIS require further refinement when a largely programmatic EIS is reviewed. The critical inquiry in considering the adequacy of an EIS prepared for a large scale, multi-step project is not whether the project's site-specific impact should be evaluated in detail, but when such detailed evaluation should occur. County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1378 (2d Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978).

NEPA requires that the evaluation of a project's environmental consequences take place at an early stage in the project's planning process. Friends of Earth, Inc. v. Coleman, 518 F.2d 323, 327 (9th Cir. 1975). This requirement is tempered, though, by the statutory command that we focus upon a proposal's parameters as the agency defines them. See Kleppe, 427 U.S. at 406-07, 96 S.Ct. at 2728-29. The requirement is further tempered by the preference to defer detailed analysis until a concrete development proposal crystallizes the dimensions of a project's probable environmental consequences. See id. at 402, 96 S.Ct. at 2726. When a programmatic EIS has already been prepared, we have held that site-specific impacts need not be fully evaluated until a "critical decision" has been made to act on site development. Sierra Club v. Hathaway, 579 F.2d 1162, 1168 (9th Cir. 1978). This threshold is reached when, as a practical matter, the agency proposes to make an "irreversible and irretrievable commitment of the availability of resources" to a project at a particular site. Id. at 1168; see also Environmental Defense Fund, Inc. v. Andrus, 596 F.2d 848, 852 (9th Cir. 1979).

The fundamental issue presented here is whether a "critical decision" has been made with respect to site development. The starting point in our analysis is "to describe accurately the 'federal action' being taken." Aberdeen & Rockfish R. R. Co., 422 U.S. at 322, 95 S.Ct. at 2356. The district court concluded that the RARE II decision contained two parts: (1) the Forest Services' recommendation to Congress that the Wilderness designated areas be included in the NWPS; and (2) in designing and implementing forest management plans during the next ten to fifteen years, the mandate that the Forest Service will not consider the wilderness uses or features of areas designated as Nonwilderness. California v. Bergland, 483 F.Supp. at 474-75. All parties agree that RARE II encompasses the first component. They disagree whether RARE II encompasses the second.

The Forest Service argues that the district court erred in concluding that Nonwilderness designation is tantamount to a decision to permit development. It emphasizes that the RARE II process is only the first step in a multi-stage planning process to allocate roadless areas to competing social uses. At this step, the Service contends, a RARE II Nonwilderness designation means only that the areas will not be considered for inclusion in the NWPS during the first generation of forest management plans under the NFMA, a period lasting between ten to fifteen years. In the meantime the Forest Service will entertain specific development proposals concerning these areas, but will prepare separate EIS's if federal action is contemplated and will consider wilderness values in devising forest plans for these areas. Given the limited impact of the Nonwilderness designation, the Forest Service urges that it is permissible to limit the scope of the EIS to a generalized discussion of the designations' overall impact.

California argues, and the district court agreed, that the Forest Service unfairly minimizes the consequences of the Nonwilderness designation. California and the district court decision focus upon the following Forest Service regulation pertaining to Nonwilderness designated areas:

Lands reviewed for Wilderness designation under the review and evaluation of roadless areas conducted by the Secretary of Agriculture but not designated as wilderness or designated for further planning and lands whose designation as primitive areas has been terminated will be managed for uses other than wilderness in accordance with this subpart. No such area will be considered for designation as wilderness until a revision of the forest plan under § 219.11(f) ....

36 C.F.R. § 219.12(e) (1981).

California and the district court decision interpret this regulation to mean that the Forest Service will not consider a Nonwilderness area's wilderness features for any purpose during the area's forest plan life. Thus, while an EIS on specific development proposals will consider substantial pollution effects, California argues that the Forest Service will be precluded from considering the desirability of utilizing the proposed site as a wilderness area, and will not consider wilderness features (e.g., solitude, primitive character and wilderness recreation) in assessing the environmental consequences. They conclude that if the wilderness features and values of each Nonwilderness area are ever to be individually evaluated, they must be evaluated now.

On balance, we conclude that California's description of the effect of Nonwilderness designation is more accurate and therefore affirm the district court. We agree with the Forest Service that the last sentence in the above quoted regulation only restricts the Forest Service from considering Nonwilderness areas for Wilderness designation, and does not explicitly forbid the Forest Service from considering Nonwilderness areas' wilderness features or values in devising forest plans. The sentence that precedes this clause, however, explicitly mandates that Nonwilderness areas "will be managed for uses other than wilderness." This command is not subject to any ambiguity. At least during the first generation of forest plans, Nonwilderness designated areas will be managed for purposes other than wilderness preservation. This command is repeated in the text of the Final EIS itself, which indicates that "(a)reas allocated to nonwilderness will become available on April 15, 1979, for multiple resource use activities other than wilderness." RARE II Final EIS at vi (emphasis added).

Future decisions concerning these areas will be constrained by this choice. While the regulations technically permit consideration of wilderness values and features in forest planning,⁴ such consideration is pointless in the absence of the discretion to manage a Nonwilderness area in a manner consistent with wilderness preservation. Similarly, the promise of site-specific EIS's in the future is meaningless if later analysis cannot consider wilderness preservation as an alternative to development. The "critical decision" to commit these areas for nonwilderness uses, at least for the next ten to fifteen years, is "irreversible and irretrievable." The site-specific impact of this decisive allocative decision must therefore be carefully scrutinized now and not when specific development proposals are made.

The deficiencies noted by the district court are precisely the omissions the Forest Service will need to correct in order to comply fully with NEPA. The prescribed content of the EIS is delineated in the Council of Environmental Quality ("CEQ") Guidelines in effect at the time of the EIS's issuance,⁵ which the Forest Service has incorporated into its own planning guidelines, see generally Forest Service NEPA Process, 43 Fed.Reg. 21254 (1978), and to which we grant "substantial deference" as the authoritative guide for NEPA's interpretation. Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60 L.Ed.2d 943 (1979).

First, these guidelines require that the proposing agency "describe the environment of the area affected as it exists prior to a proposed action." 40 C.F.R. § 1500.8(a)(1) (1977), 38 Fed.Reg. 20,550, 20,553 (1973) (superceded 1978). The Final EIS reflects only a feeble attempt to comply with this requirement. For each area in the RARE II inventory, the EIS contains a two page computer print-out which lists: (1) the location and acreage of the area; (2) its classification as one of forty basic landform types; (3) its Bailey-Kuchler classification as to ecosystem type; (4) the number of wilderness-associated wildlife species in the area; and (5) a competitive numerical rating score of each area's wilderness attributes. What this description fails to do is identify the distinguishing wilderness characteristics of each area. The indices utilized are simply too generalized. The Bailey-Kuchler classifications, for example, do not identify ecosystems less than 50,000 acres, yet many of the areas are smaller than this limit and contain a variety of different habitats. Similarly, while the EIS lists wildlife numbers, it reveals nothing concerning wildlife types and quantity, or whether rare and endangered wildlife species exist in a particular area.

The Wilderness Attribute Rating System ("WARS") score is even less informative. The WARS score utilized four distinct factors identified in the Wilderness Act (naturalness, apparent naturalness, opportunity for solitude, and opportunity for a primitive recreation experience) and assigned a numerical rating to each area from one to seven, depending on the degree of naturalness or opportunity exhibited. The four factors rated were combined to give a potential WARS score from four to twenty-eight for each area, and then the area score was competitively ranked against the WARS scores assigned to all other roadless areas. Thus, the only information the Final EIS reveals concerning the wilderness attributes of each area is a single number. Instead of identifying the unique wilderness attributes of each area, it treats wilderness characteristics as essentially fungible, and lumps them together for competitive ranking against other areas which may or may not be similar.

Second, the CEQ Guidelines require "agencies to assess the positive and negative effects of the proposed action as it affects both the national and international environment," id. at § 1500.8(a)(3)(i), 38 Fed.Reg. at 20,553, and to discuss "(a)ny irreversible and irretrievable commitments involved in the proposed action should it be implemented." Id. at § 1500.8(d)(7), 38 Fed.Reg. at 20,554. This inquiry requires an agency to assess the wilderness value of each area and to evaluate the impact of Nonwilderness designations upon each area's wilderness characteristics and value. We agree with the district court that the RARE II Final EIS is deficient in both respects. While the value of wilderness is discussed in broad terms, no attempt is made to assess the intrinsic worth of the wilderness features of any particular area, nor to forecast the value lost under various developmental regimes.

Third, the CEQ Guidelines require an EIS to discuss "(s)econdary or indirect ... consequences for the environment." Id. at § 1500.8(a)(3)(ii), 38 Fed.Reg. at 20,553, and to discuss specifically "the extent to which the action irreversibly curtails the range of potential uses of the environment," id. at § 1500.8(a)(7), 38 Fed.Reg. at 20,554. As noted by the district court, the RARE II Final EIS fails to comply with this requirement because it does not consider the effect of Nonwilderness classification upon future opportunities for wilderness classification. California v. Bergland, 483 F.Supp. at 486-87. Under Forest Service regulations, Nonwilderness areas may be reconsidered for Wilderness System inclusion in devising the second generation of forest plans ten to fifteen years hence. In the interim, however, these areas will be managed for uses other than wilderness. The foreclosing of the wilderness management option requires a careful assessment of how this new management strategy will affect each area's benchmark characteristics as identified in the Wilderness Act.

Fourth, the CEQ Guidelines require an agency to indicate "what other interests and considerations of Federal policy are thought to offset the adverse environmental effects of the proposed action." Id. at § 1500.8(a)(8), 38 Fed.Reg. at 20,554. While the EIS carefully identifies the economic benefit attributable to development in each area, no effort is made to weigh this benefit against the wilderness loss each area will suffer from development. This evaluation need not be in the form of a formal cost benefit analysis, Trout Unlimited, Inc., 509 F.2d at 1286, but it should reflect that the Forest Service has compared for each area the potential benefits of Nonwilderness management against the potential adverse environmental consequences. See 42 U.S.C. § 4332(2)(B) (1976); Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1113 (D.C.Cir.1971).

The Forest Service argues that most of the above-mentioned deficiencies are rectified if the worksheets prepared by the Forest Supervisors to compute the score for the WARS are considered part of the RARE II Final EIS. A typical WARS worksheet consists of approximately twelve pages of site-specific data regarding a single inventoried area. First, for the reasons given by the district court, we question whether the worksheets contain the type of site-specific analyses required by NEPA. California v. Bergland, 483 F.Supp. at 486-87. Second, in any event we conclude that the worksheets cannot be fairly considered as part of the RARE II Final EIS. It is settled in this circuit that any supporting data or studies expressly relied upon in an EIS must be "available and accessible" to the public. Trout Unlimited, Inc., 509 F.2d at 1284. The WARS worksheets, however, are scattered all over the country in various Regional Foresters' offices, dooming any practical attempt to review comprehensively the worksheets. Given this inaccessibility, the worksheets may not be considered in determining the RARE II Final EIS's adequacy. See Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 350 (8th Cir. 1972); Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (D.C.Cir.1972).

We concede that conducting a detailed site-specific analysis of the RARE II decision will be no simple task and will be laden with empirical uncertainty. The scope of the undertaking here, however, was the Forest Service's choice and not the courts'. NEPA contains no exemptions for projects of national scope. Having decided to allocate simultaneously millions of acres of land to nonwilderness use, the Forest Service may not rely upon forecasting difficulties or the task's magnitude to excuse the absence of a reasonably thorough site-specific analysis of the decision's environmental consequences. See Environmental Defense Fund, Inc. v. Andrus, 596 F.2d at 851-52; Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 478 (9th Cir. 1979).

II. Did the RARE II Final EIS consider a reasonable range of alternatives?

The Final EIS lists eleven alternatives, of which three-"all Wilderness", "no Wilderness" and "no action"-were included as points of reference rather than as seriously considered alternatives. RARE II Final EIS at 26. The factors considered and the methodology utilized in devising each of the remaining eight alternatives are summarized in the appendix to this opinion. Each alternative reflects a different combination of the following decisional criteria: (1) resource outputs assigned to each area by the Forest Service; (2) guidelines from the Multiple-Use Sustained-Yield Act, 16 U.S.C. § 528-531 (1976); (3) visitor accessibility; (4) landform features; (5) wildlife features; (6) ecosystems; and (7) Wilderness Attribute Rating System rating. Three of the alternatives, E, F, and G, rely exclusively upon criteria # 3 through # 6. Alternatives C, D, and I rely exclusively upon the remaining criteria. Alternative H consists of a wholly subjective evaluation of regional and local needs, and does not explicitly rely upon any of these decisional criteria. The alternative ultimately selected by the Forest Service, the Proposed Action, utilizes elements of all the decisional criteria. See Appendix, infra.

The area allocations resulting from these various alternatives are summarized in Table # 1. None of the eight alternatives seriously considered by the Forest Service designates more than thirty-three percent of the roadless acreage to Wilderness, and none designates less than thirty-seven percent of that acreage to Nonwilderness. More than one-half of the roadless acreage is allocated to Nonwilderness in six of the eight alternatives.

-------------------------------------------------------------------------------
TABLE #1
--------
PERCENT OF ACREAGE OF RARE II AREAS IN EACH RARE II PLANNING
-------------------------------------------------------------------------------
CATEGORY.*
--------                                CATEGORY
                                        --------
                                        --------
ALTERNATIVE                 NONWILDERNESS    FURTHER PLANNING     WILDERNESS
-----------                 -------------    ----------------     ----------
-------------------------------------------------------------------------------
C                                68                 18                14
D                                48                 38                19
E                                94                  1                 6
F                                55                 36                 9
G                                79                  1                21
H                                73                 11                16
I                                37                 30                33
Proposed
  Action                         59                 18                23
-------------------------------------------------------------------------------
Source: RARE II Final EIS at 37.
------