Court Finds No Supplemental Environmental Impact Statement Needed

March 8th, 2013

By: Thomas Law Group



In Great Old Broads v. RLH Ram Abigail Kimbell, (March 4, 2013) 2013 U.S.App.LEXIS 4422, the Ninth Circuit Court of Appeal affirmed the District Court’s summary judgment in favor of the United States Forest Service (Forest Service) on the merits in an action challenging the Forest Service’s approval of the restoration of a flood-damaged road in the Humboldt-Toiyabe National Forest, but reversed the District Court’s conclusion on exhaustion of administrative remedies.

In the original action Appellants challenged the Forest Service’s record of decision (ROD), which determined a method for restoring the South Canyon Road as a part of the Jarbidge Canyon Project (Project).  The Project was an effort to reestablish the South Canyon Road after flood waters damaged it, eliminating vehicle access to the Snowslide Gulch Wilderness Portal in the Jarbidge Wilderness.

In 2005, the Forest Service issued a final (ROD) and final environmental impact statement (EIS).  The ROD did not apply any of the four alternatives analyzed in the EIS.  Instead, it combined elements from three of the alternatives into one selected alternative.  Appellants contend the Forest Service’s approval of the Project violated NEPA.  Specifically, Appellants argued the selected “combined” alternative dramatically changed the environmental impacts, therefore requiring preparation of a supplemental environmental impact statement (SEIS).

The court held the Forest Service’s decision to not prepare a SEIS was not arbitrary or capricious because it met the Council for Environmental Quality’s (CEQ) guidelines.  The CEQ guidelines establish a SEIS is not required when two requirements are satisfied: (1) the new alternative is a minor variation of one of the alternatives discussed in the draft EIS, and (2) the new alternative is qualitatively within the spectrum of alternatives that were discussed in the draft EIS.  The Court held the selected alternative met both of these requirements because it was primarily made of elements from Alternatives 1, 3, and 4, which were all previously analyzed as elements in the EIS.  The Forest Service and the public could therefore adequately assess the cumulative effect of these elements, and reasonably determine that the combination was “within the spectrum” of previously analyzed alternatives.

Next, Appellants argued that even if the Forest Service correctly decided that a SEIS was not required, it violated NEPA because it did not adequately document that determination in the record.  The Court disagreed finding the Forest Service did make a reasoned decision.  Additionally, the Forest Service adequately documented the decision in the record with an explanation of why a SEIS is not needed.  The Court concluded the Forest Service met the requirement under NEPA to “document its decision that no SEIS is required to ensure that it remains “alert to new information that may alter the results of its original environmental analysis,” and “continue to take a hard look at the environmental effects of its planned action.”

In regard to the exhaustion doctrine, the Court stated that the Forest Service and the District Court, when reviewing Appellant’s claims, considered only the filed appeal letter and not any of the attachments.  The Forest Service claimed that it did not consider the attached comment letters because the appeal letter did not explain which parts of which comments in the attached letters were relevant to each element of the appeal.  However, Forest Service regulations provide that attachments are a part of an appeal.  Therefore the Court overturned the District Court’s ruling and held that the Appellant’s did in fact exhaust its administrative remedies.

Key Point:

An agency has flexibility to modify alternatives presented in the draft EIS.  However, if substantial changes are made, the agency must prepare a SEIS.  Furthermore, an agency must clearly document its decision not to prepare an SIES to ensure that it took into consideration any new information that may alter the results of the original environmental analysis.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (law clerk)
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