ELR Citation: ELR 20571
No(s). 99-35254 (9th Cir. Mar 22, 2002)

The court reverses a district court holding that an environmental group's National Environmental Policy Act (NEPA) claims against the U.S. Bureau of Land Management (BLM) were not ripe and that an environmental impact statement (EIS) prepared for the Coos Bay Resource Management Plan (RMP) for the Coos Bay District and an environmental assessment (EA) prepared for a proposed timber sale in the Sandy-Remote Analysis Area within the Coos Bay District were adequate. The court first holds that the group's claim that BLM failed to properly analyze the impact of a fungus in its preparations of the EIS is ripe. Because NEPA simply guarantees a particular procedure, a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get any riper. Here, if there was an injury under NEPA, it occurred when the allegedly inadequate EIS was promulgated. The court next holds that the EIS for the Coos Bay RMP was inadequate. The EIS clearly should have included an analysis of likely impact of the RMP on the fungus and the trees in the area. However, the only discussion of the fungus in the EIS is contained in a brief reference to BLM guidelines that describe strategies to minimize the spread of the fungus. Although the guidelines may contain a detailed analysis of the impact of the fungus on the trees in the area, they have never been reviewed under NEPA, and BLM is not excused from its responsibility under NEPA to perform an analysis of the effects of the fungus on the trees in an EIS specifically addressed to the Coos Bay RMP. Because the Coos Bay EIS may not tier to the guidelines, its adequacy depends on the analysis contained in the EIS itself, which is limited to two sentences that are obviously inadequate. Similarly, the court holds that the EA prepared for the Sandy-Remote Analysis Area impermissibly attempts to tier both to the EIS for the Coos Bay RMP and to the guidelines. Moreover, the Sandy-Remote Analysis Area EA fails to adequately analyze the cumulative impacts of the proposed timber project.

A dissenting judge would hold that BLM permissibly limited its EA to the Sandy-Remote Analysis Area.

The full text of this decision is available from ELR (33 pp., ELR Order No. L-485).

Counsel for Plaintiffs
Geoff Hickcox
Kenna & Hickcox
1300 Meadow Rd., Durango CO 81301
(970) 385-6941

Counsel for Defendant
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530