The Klamath-Siskiyou Wildlands Center (KS-Wild) challenged two timber sales, proposed by the Bureau of Land Management (BLM) in the Cascade Mountains of Southern Oregon, under the National Environmental Policy Act (NEPA).[1] KS-Wild asserted that BLM's Environmental Assessment (EA) of each sale failed to address cumulative impacts, and that all four sales within the South Fork Little Butte Creek (SFLBC) watershed should have been discussed in a single NEPA document. The district court granted summary judgment to the BLM, and KS-Wild appealed. The Ninth Circuit reversed the district court's decision on the issue of cumulative impacts, but determined that BLM was not required to prepare a single NEPA document for all four sales within the SFLBC watershed.

In 1998, BLM began planning a conservation and logging project on the entire Little Butte Creek watershed. In 1999, BLM developed a "single silvicultural prescription" for the SFLBC watershed.[2] Originally conceived as a single project, BLM split it into four separate, but adjacent, timber-sale projects scheduled for harvest over a four-year period. BLM decided to prepare separate EAs for each project, and went forward with preparation of the first two--for the Indian Soda and Conde Shell projects. Both EAs found no environmental impacts arising from the sales, and as a result BLM issued two Findings of No Significant Impact (FONSI). KS-Wild then filed suit with the district court, which entered summary judgment for BLM. After KS-Wild filed an appeal with the Ninth Circuit, the district court entered an injunction prohibiting timber harvests pending resolution of the appeal.

On appeal, the Ninth Circuit reviewed BLM's actions de novo to determine if they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[3] The court's function was to determine whether BLM had taken the requisite "hard look" at the potential environmental consequences of the proposed action.[4] A reviewing court must subject an agency's actions under NEPA to "careful judicial scrutiny,"[5] but it must not "substitute its judgment for that of the agency."[6]

KS-Wild's first challenge to the adequacy of BLM's EAs concerned its alleged failure to properly consider cumulative impacts. 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."[7] The Ninth Circuit determined the required analysis must include "some quantified or detailed information" unless the agency can provide "justification regarding why more definitive information could not be provided."[8]

Measuring the BLM EAs' cumulative effects analysis by this standard, the Ninth Circuit determined that the analysis was inadequate because the cumulative effects sections did not provide enough information. Noting that the cumulative impact sections of each EA were virtually identical, the court took a detailed look at the Indian Soda EA as an illustration. The Ninth Circuit found that the cumulative effects analysis in this EA began with a three page table on the Indian Soda project area impacts alone, and was followed by another table with nothing but conclusory statements as to impacts. The court determined the document provided no data by which to justify the conclusions, nor a statement as to why objective data might be unavailable. The Ninth Circuit thus concluded that the analysis "did not satisfy the admonition that general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided."[9]

Reviewing the section of the report titled "Future Foreseeable Actions," the Ninth Circuit found that it contained only a tabulated list of five future area projects and a calculation of potential harvested acres.[10] This section contained no description of "the actual environmental effects that can be expected from logging these acres."[11] The court was baffled by the EA's comparison of road and fence construction on the Indian Soda site with a site that was not in the SFLBC watershed, while providing no comparison to other logging sites within the watershed. The Ninth Circuit was also unimpressed with the table at the end of the future foreseeable actions section, which contained generalized conclusory analysis, with no specific data or explanations to why such data was unavailable. In addition, this table contained contradictory information stating that, while there would not be effects for a range of environmental factors, half of these factors would in fact be impacted unless "avoided by project design."[12] But the court found no information in the EA on the project design measures necessary to avoid these impacts. The Ninth Circuit concluded that this section of the EA included "general statements about possible effects and some risk . . . insufficient to constitute a hard look."[13]

The district court found that the appendix of the EA included a cumulative impact analysis. However, the Ninth Circuit determined that the appendix contained only a boilerplate description of canopy closure calculations, identical in both the Indian Soda and Conde Shell EAs. This description was followed by a section titled "Aquatic Conservation Strategy Objectives" which discussed only the effects of the project at issue, with no cumulative effects analysis.[14] The court determined that the appendix contained no useful information about cumulative impacts.

In oral arguments before the Ninth Circuit, BLM asserted that the scant information in the EA was sufficient for the agency specialists to determine what the cumulative environmental impacts would be and that these impacts would not be significant. The court rejected this argument because it held that the purpose of NEPA documents is not only to provide information to agency experts, but to provide information "in plain language . . . so that decisionmakers and the public can readily understand them."[15] Thus the court concluded the lack of hard data would "vitiate[ ] a plaintiff's ability to challenge an agency action or result[ ] in the courts second guessing an agency's conclusions."[16] Both results, the court held, were "unacceptable."[17]

The Ninth Circuit summarized its finding that the cumulative impact analysis in the EAs was inadequate with a determination that the "potential for . . . serious cumulative impacts is apparent here."[18] The court noted that a combination of two or four "slight to moderate increase[s] in risk of a higher magnitude [runoff] event" might result in a significant overall risk for the SFLBC watershed.[19] The court also took note of Oregon's listing of the SFLBC as not meeting water quality standards under the Clean Water Act,[20] and BLM's identification of this area as an important link for northern spotted owl habitat. However, the court determined the EAs provided no quantitative data on the cumulative impacts of the proposed logging on either water quality standards or owl habitat. Thus, the Ninth Circuit held that the EAs' cumulative impact analyses did not satisfy the requirements of NEPA.

Alternatively, BLM argued that even if the EAs did not properly address cumulative impacts, they were "tiered" to other documents which did.[21] BLM pointed to two other documents: an EIS for the Medford District's Regional Management Plan (RMP-EIS) and the State of Oregon's Little Butte Creek Watershed Analysis. The Ninth Circuit dismissed this argument. The court held that the inclusion of general cumulative impact statements, like those found in the RMP-EIS, did not absolve BLM of its responsibility to provide specific cumulative effects information in the EAs. Oregon's watershed analysis was not a NEPA document, and thus "tiering" to this document was impermissible because "tiering to a document that has not itself been subject to NEPA review is not permitted."[22]

The Ninth Circuit next turned to the second major issue raised by KS-Wild--the question of whether BLM should have evaluated each timber project together in a single document. A single impact statement is required when the projects consist of "[p]roposals . . . which are related to each other closely enough to be, in effect, a single course of action."[23] After disposing of BLM's response that an impact statement is not an EA, the Ninth Circuit reviewed the relevant regulations, which require a single EA where actions are "cumulative."[24] The regulations also give an agency the option to prepare a single EA where actions are "similar," unless the combined EA is the "best way" to evaluate environmental effects, in which case a single EA is required.[25]

Looking at whether the timber sales were "cumulative" actions under the regulations, the Ninth Circuit noted the difficulty in determining the proper resolution of this issue, since the EAs themselves contained insufficient information on this subject. The court looked to past case law and found that a single analysis should be done "when the record causes substantial questions about whether there will be significant environmental impacts from a collection of anticipated projects."[26] In absence of the record needed to make this determination, the Ninth Circuit declined to determine conclusively that the timber sales constituted a cumulative action. The court indicated that the issue remained open, pending BLM's required revisions to the EAs.

KS-Wild argued that if the timber sales were not "cumulative" actions, they were "similar" in nature, and since the "best way to assess adequately the combined impacts" was in a single EA, BLM was required to do so under NEPA regulations.[27] The Ninth Circuit noted that the "similar actions" language of the regulations allowed an agency more deference than the "cumulative actions" language in deciding whether to combine its analyses.[28] If a combined EA is not clearly the "best way" to analyze impacts, then the agency has the discretion not to combine the documents.[29] Noting that, although the projects were similar, they would not take place concurrently and would take place on different sites, the court was unable to find that BLM acted arbitrarily in declining to combine the projects into a single EA. Thus the court concluded that BLM was not required to prepare a single NEPA document for both timber sales, even though the individual cumulative analyses in the two separate EAs under dispute was inadequate and required BLM revision.

While Judge Reinhardt concurred with the court's decision on the inadequacy of BLM's cumulative impacts analysis, he dissented on the issue of the combined document. Judge Reinhardt noted that this was "a single proposal governing the four anticipated projects and the projects constitute cumulative actions under the implementing regulations," thus "requir[ing] a single NEPA analysis."[30] Judge Reinhardt pointed to the history of the project, showing a clear intent by BLM to manage the SFLBC watershed under a single silvicultural prescription. He also noted the BLM decision to split the project into four parts was contradicted by its own staff's continued treatment of the four areas as part of a single project. Because the record thus "raise[s] substantial questions that [the proposed agency actions] will result in significant environmental impacts," Judge Reinhardt concluded that the individual actions are cumulative and must be analyzed together.[31]