ELR Citation: ELR 21168
No(s). s. 98-35043, -35231 (9th Cir. May 19, 1999)

The court holds that the U.S. Forest Service violated the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) when it approved a land exchange with a timber company in the Mt. Baker-Snoqualmie National Forest in Washington State. Therefore, the court enjoins further logging on the land. The exchange included intact portions of the Huckleberry Divide Trail, a site important to a Native American tribe and eligible for inclusion in the National Register for Historic Preservation.

The court first holds that under the NHPA, the Forest Service adequately consulted with the tribe regarding the identification of traditional cultural properties within the land exchange. The court, however, next holds that the Forest Service failed to mitigate the adverse effects of transferring part of the trail by documenting the trail through photographs. Under NHPA regulations, photographing and mapping the trail are not adequate restrictions or conditions that ensure preservation of the property's significant historic features.

The court then holds that the Forest Service failed to take the necessary hard look at the cumulative environmental impacts of the exchange in conjunction with the past and reasonably certain future transactions. The environmental impact statement (EIS) for the land exchange is tiered erroneously to the forest plan, which does not account for the specific impacts of the exchange. In addition,the cumulative impact statements that are provided in the EIS for the exchange are far too general and one-sided to meet NEPA's requirements. Further, the Forest Service's attempt to tier the EIS for the exchange to a watershed report was impermissible under NEPA regulations that only permit tiering to prior EISs. The Forest Service also failed to analyze adequately the cumulative effects of a reasonably foreseeable future land exchange with another timber company. The court then holds that Forest Service violated NEPA by failing to consider an adequate range of alternatives to implement the proposed exchange. The EIS considered only a no action alternative with two virtually identical alternatives. The court last holds that the conveyance of the property to the timber company and the company's destruction of at least 10 percent of the land does not moot the case.

Counsel for Plaintiff
Gregory M. O'Leary
Law Offices of Gregory M. O'Leary
Exchange Bldg.
821 Second Ave., Seattle WA 98104
(206) 523-6387

Counsel for Defendants
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher, Reinhardt, and Thomas, JJ.