Oregon District Court holds that NEPA requires further analysis of cumulative impacts in use of herbicides for controlling invasive species under Forest Service management plan.

In League of Wilderness Defenders/Blue Mountains Biodiversity Project v. United States Forest Service, No. 3:10-CV-01397-SI (D. Ore. Jun. 29, 2012)[link to PDF available here], the District Court for the District of Oregon – Portland Division considered the use of herbicides in controlling invasive plant species in the Wallowa-Whitman National Forest, an area of approximately 2.3 million acres in northeast Oregon and western Idaho. The Court defined an invasive plant as “a non-native plant whose introduction does or is likely to cause economic or environmental harm or harm to human health,” citing Executive Order No. 13,112, 64 Fed. Reg. 6,183 (Feb. 3, 1999).

In 2005, the Regional Forester for the Pacific Northwest Region of the U.S. Forest Service (also known as Region Six) approved a new management direction on preventing and managing invasive plants, and revised its management direction to approve a list of ten herbicides. As required by the National Environmental Policy Act (“NEPA”), the Forest Service prepared an Environmental Impact Statement (“EIS”). The final version, released in March 2010 by the U.S. Forest Service, recommended increasing the use of herbicides to control invasive plants and allowed the use of all ten of the herbicides approved at the regional level. To reflect these changes, the Wallowa-Whitman National Forest amended its local management plan, and approved this recommended approach in an April 2010 Record of Decision. The League of Wilderness Defenders (“LOWD”), as a stakeholder, had provided comments to the Forest Service’s EIS, appealed the Forest Service’s decision within the agency, and finally sought judicial review in the Oregon District Court.

LOWD argued that the Forest Service, in approving an Invasive Plants Treatment Project for the Wallowa-Whitman National Forest (the “Project”), did not comply with three federal statutes: the National Forest Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”); NEPA, 42 U.S.C. § 4321 et seq.; and the Clean Water Act, 33 U.S.C § 1251 et seq. The District Court reviewed these claims under the applicable legal standard that it may set aside an agency’s decision only where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A).

First, the Court described the requirements of the NFMA. The NFMA requires the Forest Service to develop “land and resource management plans” for units of the National Forest System. 16 U.S.C. § 1604(a). These plans must provide for multiple and sustained yield of products and services including “coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” Id., §1604(e)(1). The Ninth Circuit has explained that NFMA is not the Forest Service’s only consideration when developing site-specific plans. The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir. 2008). After a plan is developed, all subsequent actions must be consistent with that plan. 16 U.S.C. § 1604(i). In this case, the Court found that the Forest Service’s explanation of its modeling data was reasonable, on an appropriate scale, and consistent with the Forest Service’s conclusion, and therefore the agency had complied with NFMA.

Second, the Court reviewed the requirements of NEPA, stating that it declares a broad commitment to environmental quality and prescribes the necessary process but does not mandate particular results. In general, NEPA requires that before any major Federal action significantly affecting the quality of the human environments, a responsible official must prepare a detailed statement that includes (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided, (iii) alternatives to the proposed action, (iv) the relationship between short-term uses and enhancement of long-term productivity, and (v) any irreversible commitments of resources involved in the proposed action. 42 U.S.C. § 4332(C). In this case, the Court accepted the Forest Service’s decision that the project should focus primarily on treatment of existing infestations of invasive plants rather than on prevention of future infestations, and concluded that the agency had evaluated a reasonable range of alternative actions.

However, the Court found that the cumulative impacts analysis in the Forest Service’s EIS was insufficient, even under a standard of deference to the agency’s determination in an area involving a high level of expertise. McNair, 537 F.3d at 987. The Court held that the Forest Service did not adequately evaluate the cumulative impacts when considered in conjunction with other actions. Specifically, the EIS presented “vectors” that spread invasive plants (including recreation, grazing, vegetation management, wildfire and prevents, logging, road use, and agriculture) but did not consider the impact of continued introduction and continued treatment. The Court found that the EIS did not address how continued use of herbicides could affect forest lands that are already highly impacted by these activities that are introducing the invasive species. In addition, the Court found that the EIS was insufficient because it assumed that direct impacts would be minimal, and concluded that a thorough cumulative impacts analysis was not needed based on that assumption. The Court found that such an analysis is the very point of a cumulative impacts analysis, and avoiding the analysis is insufficient. Moreover, this conclusion focuses the EIS exclusively on herbicide use impacts, rather than considering non-chemical activities and their impacts. Accordingly, the Court remanded the issue for further analysis.

Finally, the Court disagreed with LOWD’s argument that the Forest Service should have evaluated the possibility that permits would be required if CWA standards were amended. LOWD admitted that at the time the project and EIS were adopted, the Forest Service did not need permits to comply with the CWA. The Court held it is not arbitrary or capricious to omit discussion of a likely change in law that would require permits.