The Ninth Circuit refused to reverse the district court's grant of summary judgment to the United States Forest Service (Forest Service) in connection with the Forest Service's failure to prepare a supplemental environmental impact statement (SEIS) for timber sales in the Nez Perce National Forest. The court held that the Forest Service violated the National Environmental Policy Act (NEPA)[1] by failing to properly assess the need for an SEIS at the time the action was commenced. However, the court refused to issue the injunction requested by Friends of the Clearwater because the Forest Service had explicitly considered the need for an SEIS after the onset of the litigation and had reasonably concluded that an SEIS was unnecessary.

In 1989, the Forest Service completed a site-specific environmental impact statement (EIS) for four proposed timber sales in the Nez Perce National Forest, located in north-central Idaho. The final record of decision (ROD) approved the timber sales, and two were awarded and completed prior to Friends of the Clearwater's suit. In 1998, the Forest Service received letters from individuals and environmental groups, including the plaintiffs, noting that in the ten years since the Forest Service completed the original EIS, several new fish and wildlife species in the area had been listed as endangered and that the EIS was therefore out of date. The Forest Service had prepared two supplemental information reports (SIRs) prior to receipt of the letters, and it prepared a third SIR after receipt of the letters.[2] After reviewing the SIRs, the Forest Service concluded that the new information concerning the species did not require preparation of an SEIS. Friends of the Clearwater then challenged this conclusion.

While litigating the case in district court, Friends of the Clearwater raised two new issues regarding the need for an SEIS. First, the plaintiffs argued that the Forest Service's designation of seven new species as "sensitive"[3] constituted significant new information that required preparation of an SEIS. Second, Friends of the Clearwater contended that the Forest Service's South Fork Clearwater River Landscape Assessment (South Fork Assessment) acknowledged that the standards for old growth and snags in the Nez Perce Forest Plan were inadequate. Therefore, because the original EIS relied on inadequate standards in the forest plan, the Forest Service must prepare an SEIS. The district court granted summary judgment to the Forest Service, finding that the original EIS and the South Fork Assessment contained data that supported the Forest Service's decision not to prepare an SEIS.

On appeal, the Ninth Circuit determined that the Forest Service failed to consider, evaluate, and make a reasonable determination whether new information regarding the seven new sensitive species or the inadequacy of the snag and old growth standards were significant enough to require an SEIS. The record indicated that despite being aware of the new information, the Forest Service neglected to evaluate the existing EIS to determine if it required supplementation, before Friends of the Clearwater filed suit. In addition, Friends of the Clearwater's failure to raise the new information until after they commenced the action did not excuse the Forest Service's duty under NEPA. NEPA imposes a mandatory duty on federal agencies to comply with its procedural requirements regardless of the vigilance of the environmental plaintiffs. Also, the Forest Service did not need the plaintiffs to point out the new information because the Forest Service generated the new information itself. Therefore, the Forest Service violated NEPA by failing to evaluate in a timely manner the need for an SEIS in light of new information.

Nevertheless, the Ninth Circuit denied the plaintiffs' request to enjoin the remaining timber sales. Since the beginning of the litigation, the Forest Service had prepared several new studies and documents that supported its conclusion that an SEIS was unwarranted. The Forest Service presented the new information to the court, and Friends of the Clearwater challenged the use of the supplemental studies. First, the court rejected Friends of the Clearwater's argument that the supplemental studies were performed without public participation or comment. Although NEPA requires agencies to allow the public to participate in the preparation of an SEIS, the statute does not require agencies to allow public participation in the decision whether to prepare an SEIS. Second, the Ninth Circuit rebuffed the argument that it could not consider the supplemental studies because they were not part of the administrative record when the Forest Service decided not to prepare an SEIS. Unlike review of a final agency action, which is limited to the administrative record at the time of the final action, the claim filed by Friends of the Clearwater is a claim that arises under section 706(1) of the Administrative Procedure Act[4] to "compel agency action unlawfully withheld or unreasonably delayed."[5] Therefore, "review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record."[6] In addition, the court stated that when considering whether relief should be granted the court must consider evidence that the Forest Service cured a NEPA violation, even if it occurred after the beginning of litigation. As a result, the Ninth Circuit decided to consider the supplemental studies in determining whether to issue the injunction.

After examining the supplemental studies, the Ninth Circuit concluded that the Forest Service took the required "hard look" at the designated sensitive species and the old growth and snag standards. The supplemental studies contained additional data and analyses that supported the Forest Service's conclusion that the seven sensitive species designations and inadequate old growth and snag standards did not require an SEIS. Because the Forest Service articulated a rational connection between the facts and its conclusion, the court held that the decision to forgo preparation of an SEIS was not arbitrary and capricious.