Neighbors of Cuddy Mountain, the Ecology Center, and Idaho Sport Congress (collectively Neighbors) challenged approval by the United States Forest Service (USFS) of a timber sale in the Grade and Dukes Creek area (Grade/Dukes) of the Payette National Forest in Idaho. Neighbors argued that USFS violated the National Forest Management Act (NFMA)[1] and the National Environmental Policy Act (NEPA)[2] when it approved the Grade/Dukes timber sale. The district court dismissed Neighbors' two NFMA claims as unripe and, in the alternative, as redundant, and ruled that USFS's Environmental Impact Statement (EIS) was sufficient. The Ninth Circuit reversed the district court's dismissal of Neighbors' NFMA claims, holding that the claims were reviewable under the Administrative Procedure Act (APA)[3] because the challenge to USFS's forest monitoring was related to the lawfulness of the agency's decision to approve the timber sale. In addition, the Ninth Circuit affirmed the district court's ruling that USFS took the requisite 'hard look' required by NEPA[4] to consider the environmental effects of the project.

Neighbors made four specific claims against USFS. First, Neighbors argued that USFS failed to collect sufficient data to ensure old growth dependent species diversity in Payette National Forest when it approved the timber sale, in violation of NFMA.[5] Second, they asserted that USFS failed in its duties under NFMA to ensure that old growth dependent species are well-distributed in the area.[6] Third, the environmentalists argued that USFS failed to meet the old growth habitat requirements set out in the Payette Forest Plan, as required by NFMA.[7] And fourth, the plaintiffs contended that USFS violated NEPA by failing to adequately consider cumulative impacts on the environment in the supplemental environmental impact statement (SEIS) as a result of the Grade/Dukes timber sale. In response, USFS argued that Neighbors' claims were moot because Boise-Cascade Corporation completed logging of the timber sale at issue during litigation.

In response to USFS's mootness argument, the Ninth Circuit held that the case was not moot even though the area had already been logged because the court could still provide effective relief to plaintiffs for the alleged violations of NFMA and NEPA. The court relied on its decisions in Northwest Environmental Defense Center v. Gordon (Gordon)[8] and Cantrell v. City of Long Beach,[9] both of which involved irreparable injury to natural resources. In Gordon, the Ninth Circuit did not find a challenge to regulations governing a salmon fishing season mooted by the close of the season because the court could afford relief to the plaintiffs by requiring more escapement in subsequent years.[10] In Cantrell, the Ninth Circuit declined to find moot a challenge to an EIS involving a development plan for a former naval station, even though historical buildings and bird habitat were already destroyed under the plan, because the defendants could develop mitigation measures if forced to conduct an adequate environmental review.[11] In the present case, the court reasoned that, as in Gordon and Cantrell, the plaintiffs could still obtain relief because the district court could order USFS to study the effects on old growth species or mitigate the project's adverse effects.

The Ninth Circuit distinguished Headwaters, Inc. v. Bureau of Land Management,[12] in which the court found a challenge to a timber sale mooted by the complete logging of the trees. [13] The Ninth Circuit reasoned that its decision in Headwaters did not apply because the plaintiffs in that case had narrowly drawn their complaint and failed to make a broad request for relief. On the other hand, in this case the plaintiffs properly formulated a broad request for relief "as may be necessary and appropriate to avoid further irreparable harm."[14]

The Ninth Circuit then reached the district court's decision to dismiss the Neighbors' NFMA claims as unripe because they were not sufficiently connected to site-specific action. USFS disputed the court's jurisdiction to hear Neighbors' NFMA claims because they challenged forest-wide monitoring and reporting, which are not "final agency action[s]" under the APA,[15] and therefore not reviewable. The court rejected USFS's argument, reasoning that Neighbors challenged USFS's monitoring practices as they related to the Grade/Dukes timber sale, a final agency action.[16] The court determined that Neighbors' complaint alleged a sufficient causal connection between USFS mismanagement and the agency's arguably unlawful approval of the Grade/Dukes timber sale. The Ninth Circuit distinguished Ecology Center, Inc. v. United States Forest Service,[17] where the plaintiff's claim was primarily aimed at USFS monitoring duties and not a final agency action. The Ninth Circuit also distinguished Sierra Club v. Peterson,[18] where the plaintiffs used a "laundry list" of sales to challenge USFS's forest management practices in Texas.[19]

The Ninth Circuit next rejected USFS's argument that Neighbors' NFMA claims were inapplicable because the old growth habitat requirement set out by the Payette Forest Plan was satisfied in the area directly affected by the Grade/Dukes timber sale and in the adjacent areas. The Ninth Circuit reasoned that management activities that comply with the Payette Forest Plan's old growth habitat requirements may still implicate NFMA's requirements for species viability throughout the forest because destruction of old growth habitat elsewhere may result in harm to species if the specific timber sale is approved. The court concluded, therefore, that forest-wide practices were directly relevant to the specific timber sale because not following NFMA would contradict the purpose of the statute to manage forests with a "'systematic interdisciplinary approach.'"[20]

In the alternative, the district court dismissed the NFMA claims because they were redundant given the plaintiffs' fourth claim alleging that USFS's EIS was insufficient under NEPA. The Ninth Circuit reversed the district court's decision, concluding that the first two claims could not be redundant because they were founded on NFMA, while the plaintiffs' fourth claim was based on NEPA. The court reasoned that because the claims were based on different statutes that imposed different duties on USFS, the district court's decision was an abuse of discretion.

Finally, the Ninth Circuit addressed the NEPA claim, affirming the district court's decision that the Grade/Dukes timber sale SEIS adequately addressed cumulative impacts to old growth species in the Payette National Forest. Under USFS regulations, "[c]umulative 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."[21] The Ninth Circuit explained that a court must determine if an agency took a "'hard look'"[22] at the environmental effects of a timber sale when addressing the adequacy of an EIS, and determine if the EIS contains a "'reasonably thorough discussion of the significant aspects of probable environmental consequences.'"[23] The Ninth Circuit concluded that USFS did take a "hard look" at the effects of the Grade/Dukes timber sale, and that the agency was not required by NEPA to take into account the effects the sale would have upon the east side of the forest, which had been recently burned in a fire.[24]

Judge Thompson concurred as to the NEPA claims but dissented as to the NFMA claims, arguing that the NFMA claims were moot because the court did not have the ability to grant relief to plaintiffs for the damage caused by alleged illegal logging of old growth forest. The dissent explained that the three types of mitigation the majority relied on in its opinion--"(1) a prohibition on future logging; (2) construction of artificial habitat; or (3) studies on the effects of any unlawful logging and possible mitigation"-- were not remedies available to the court.[25] The dissent opined that that the majority's reliance on Gordon was misplaced because, unlike an order requiring more salmon escapement, a prohibition on future logging would not replace old growth since old growth forests take hundreds of years to develop. The dissent further reasoned that future logging should be analyzed by considering the effects of the proposed logging in conjunction with the effects of the Grade/Dukes timber sale in a cumulative effects analysis. Responding to the majority's position that a possible form of relief to the plaintiffs might include construction of artificial habitat to mitigate the habitat destroyed as a result of the timber sale, the dissent maintained that old growth habitat cannot be developed because it takes centuries to occur naturally. The dissent finally concluded that studies of the adverse effects of the sale on old growth dependent species' viability would also be an inadequate form of relief absent the possibility of mitigation.