Withdrawal of Mitigation Measure after Project Approval Triggers Need for Supplemental EIS

League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton

--- F.3d --- (2014)

The Ninth Circuit Court of Appeals recently held that a supplemental Environmental Impact Statement (“EIS”) was required when the Forest Supervisor withdrew mitigation designed to regulate motorized travel and roads within a forest after the adoption of the final EIS prepared for a logging project.

This case arose from a challenge to a federal agency’s approval of a proposed logging project in approximately 29,000 acres of the Whitman-Wallowa National Forest (“Forest”) in northeast Oregon. Following the adoption of the final EIS, the Forest Supervisor withdrew the Forest’s Travel Management Plan (“TMP”), which the final EIS relied on to mitigate certain potential environmental impacts of the logging project.

The League of Wilderness Defenders (“LWOD”) filed suit seeking to enjoin the government’s timber sale on the ground, among others, that the U.S. Forest Service had violated NEPA. The district court denied LWOD’s request for a preliminary injunction, finding that LWOD had not demonstrated a likelihood of succeed on the merits. On appeal, LWOD argued that, since the TMP had been withdrawn, the final EIS’s reliance on the TMP to mitigate certain environmental impacts was invalid, and a supplemental EIS must be completed.

The Ninth Circuit reversed, holding that LWOD had shown a likelihood of success on the merits. The Court held that a supplemental EIS would likely be necessary because otherwise “the public would be at risk of proceeding on mistaken assumptions.” For example, the final EIS noted that the TMP would provide additional elk habitat away from roads and would result in improved elk security. The Court’s review of the final EIS determined that its discussion of environmental impacts was “interwoven” with statements relying on the TMP for mitigation of impacts. The Court stated that it was not up to the public to “parse” the agency’s statements or determine which parts of the final EIS relied on accurate information. Accordingly, the Court held that the final EIS lacked clarity and was therefore deficient.

To link to a downloadable version of this article, please click here.

© 2011-2014 Copyright ~ Harrison, Temblador, Hungerford & Guernsey LLP. All rights reserved.

The materials and information in this article have been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and do not constitute legal advice.