Oregon Natural Resources Council v. U.S. Bureau of Land Management, 470 F.3d 818 (9th Cir. 2006).

Plaintiffs Oregon Natural Resources Council Fund, together with Klamath Siskiyou Wildlands Center, Umpqua Watersheds, Inc., and Headwaters (collectively ONRC), appealed a district court's decision granting summary judgment in favor of the Bureau of Land Management (BLM). ONRC alleged that BLM violated the National Environmental Policy Act (NEPA)[1] by conducting an insufficient Environmental Analysis (EA) for the "Mr. Wilson"[2] logging project (Wilson Project). The district court found that, since logging was complete, the matter was moot, and granted summary judgment in favor of BLM. On review, the Ninth Circuit reversed, with one judge dissenting. The majority held that the matter was not moot and that the EA was in fact insufficient, while the dissenting judge contended the matter was moot. The court remanded and orderedBLM to complete another EA.

The Wilson Project was located in the Glendale Resource Area of the Medford BLM District in Oregon. In July 2001, BLM issued the EA for the Wilson Project, and in October of that same year BLM issued a Finding of No Significant Impact, which found that the project would not have a significant impact on the human environment and an Environmental Impact Statement was therefore unnecessary. ONRC filed suit seeking a preliminary injunction to halt the logging during the litigation, but the court declined to issue the injunction and granted summary judgment for BLM on June 23, 2004.

On August 23, 2004, ONRC requested relief from the summary judgment, arguing that two subsequent court decisions, Lands Council v. Powell[3] and Klamath-Siskiyou Wildlands Center v. Bureau of Land Management (KSWC),[4] represented a change in the law. The district court denied the request but said that it "would reconsider the June 23, 2004 order in light of subsequent Ninth Circuit precedent if the court of appeal were to find that procedure to be appropriate."[5] Thereafter, ONRC moved for an injunction pending appeal, but the district court again denied the request. This time, the court reasoned that, "[a]lthough plaintiffs have raised a serious question for litigation on the merits, this relatively small project is nearing completion . . . . "[6]

The Ninth Circuit reviewed de novo,[7] stating that in the NEPA process an agency must take a "hard look"[8] at "the potential environmental consequences of the proposed action."[9] The court noted that the standard of review was a narrow one, but the agency's decision would be set aside if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[10]

The Ninth Circuit first addressed whether ONRC's action was moot, given that ONRC never received an injunction and logging had continued throughout the litigation. BLM argued that the action was moot because the timber harvesting was complete and no remaining activities could cause a significant environmental impact. The court explained, however, that the issue was "not whether the precise relief sought at the time of the application for an injunction was filed is still available. The question is whether there can be any effective relief."[11] The court also emphasized that "if the completion of the action challenged under NEPA is sufficient to render the case nonjusticiable, [an] entity 'could merely ignore the requirements of NEPA, build its structures before the case gets to court, and then hide behind the mootness doctrine. Such a result is not acceptable.'"[12]

Looking at the facts of the case, the Ninth Circuit concluded that the case was not moot, because, although most, if not all, of the harvesting was complete, "thinning and other husbandry functions"[13] remained to be completed. The court cited Neighbors of Cuddy Mountain v. Alexander,[14] saying that "[a]lthough the harvested trees cannot be restored, '[b]ecause harm to old growth species may yet be remedied by any number of mitigation strategies,' this case is not moot."[15] The court also noted that there were many other concerns, such as slash pile management, erosion prevention, and preparation for future sales, and the court explained that an appropriate EA would offer effective relief if the EA properly considered these concerns.

Having found that the case was not moot, the Ninth Circuit next addressed whether the EA was adequate, and the court found that the EA was inadequate for two reasons. First, the court explained that "BLM failed to disclose and consider quantified and detailed information regarding the cumulative impact of the Mr. Wilson logging project combined with past, present, and reasonably foreseeable logging projects."[16] BLM argued that such information was only necessary in an EIS as opposed to an EA, and the EA provided sufficient information to determine that the project would not have significant environmental impacts. The Ninth Circuit rejected this argument, however, saying that BLM was in essence arguing that its EA was sufficient "'because we say it is.'"[17] The court explained that, just as was the case in KSWC, the EA "did not contain objective quantified assessments of the combined environmental impacts of the proposed actions."[18]

Secondly, the Ninth Circuit found that the EA was not adequate because it was "tiered to documents which did not contain the requisite site-specific information about the impacts of past, present, and reasonably foreseeable logging."[19] Tiering is the practice by which agencies rely on broader environmental impact statements, like one that would accompany a national program, to address general matters. Agencies are thus able to focus, in particularized EISs, on project specific matters. The court said that with respect to the Mr. Wilson EA, BLM's tiering did not save the EA because the documents to which it was tiered were either inadequate or not NEPA documents.

The Ninth Circuit thus reversed the district court's grant of summary judgment in favor of BLM and remanded the case back to the district court with instruction to enjoin the remainder of the Mr. Wilson project until BLM would provide a revised EA. Judge Tashima authored a lengthy dissent, arguing that the case was indeed moot because all that remained of the Mr. Wilson project was so "trivial"[20] that "no effective relief is available under NEPA."[21] The dissent also argued that, because plaintiffs in this case brought only a cause of action under NEPA, a purely procedural statute, this case was distinguishable from Neighbors of Cuddy Mountain, in which the court was able to give a remedy because plaintiffs, in addition to their NEPA claim, had also brought a cause of action under a substantive statute.