Friends of the Wild Swan et al v. Austin et al
Filing
67
ORDER denying 60 Motion to dissolve the injunction. Signed by Judge Donald W. Molloy on 3/27/2013. (dle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
FRIENDS OF THE WILD SWAN and
others,
CV 11–125–M–DWM
Plaintiffs,
ORDER
vs.
UNITED STATES FOREST SERVICE
and others,
Defendants.
The United States Forest Service moves to dissolve the injunction in light of
actions that it has taken following remand. The motion is denied.
The Court previously granted summary judgment in favor of the Forest
Service on a host of issues, all but one. (See doc. 50.) The only fault with the
Service’s analysis of the Colt Summit Project was the inadequate cumulative
effects analysis for lynx. (Id.) Because of this deficiency, the Court remanded the
matter to the Forest Service “so that it may prepare a supplemental environmental
assessment consistent with this order and the law.” (Id. at 46.)
The summary judgment order plainly requires the Forest Service to prepare
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a supplemental environmental assessment (“supplemental EA”). The Service
didn’t do so. Instead, it prepared what it called a “supplement to the environmental
assessment.” The document is a stand alone document that is, by the Service’s
own admission, not a supplemental EA within the meaning of NEPA or the NEPA
regulations. See 40 C.F.R. §§ 1502.9, 1508.9–1508.10. Nor, contrary to the
Service’s argument, is the “supplement to the environmental assessment” any
other type of NEPA document. See 40 C.F.R. § 1508.10.
Courts have previously allowed agencies to prepare non-NEPA,
supplemental documents on remand, but those circumstances do not apply here.
See e.g. Marsh v. Or. Natural Resources Council, 490 U.S. 360, 383–85 (1989);
Idaho Sporting Congress, Inc. v. Alexander, 222 F.3d 562 (9th Cir. 2000); Price
Road Neighborhood v. U.S. Dept. of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997);
Half Moon Bay Fishermans’ Marketing Assn. v. Carlucci, 857 F.2d 505 (9th Cir.
1988).
Instead, where, as here, the Service “present[s] information and analysis that
it was required, but according to the finding of the district court, failed to include
in its original NEPA documents,” it must prepare a supplemental NEPA
document. Idaho Sporting Congress, 222 F.3d at 567; see also N. Idaho
Community Action Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1161 n.1 (9th
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Cir. 2008). Using documents not sanctioned by NEPA to “correct this type of
lapse” is “inconsistent with NEPA”:
[I]f the Forest Service were permitted to correct deficiencies in an EA
or an EIS by means of an SIR or another non-NEPA procedure, the
regulations governing the supplementation of NEPA documents
promulgated by the CEQ, as well as the Forest Service’s own rules on
the issue, would be superfluous.
Id. (citations omitted).
The Forest Service’s document does not comply with the Court’s summary
judgment order or Ninth Circuit precedent.
The Service makes two arguments in response. First, it argues that the Court
has previously allowed the Service to prepare a non-NEPA supplement on remand.
See Native Ecosystems Council v. Kimbell, 9:5–cv–110. Be that as it may, the
Court in Native Ecosystems Council expressly ordered the Service to “to
supplement the EIS.” That isn’t the case here. Here, the summary judgment order
expressly requires the Service to prepare a “supplemental environmental
assessment.” These are two distinct requirements.
Second, the Forest Service argues that it solicited public comment for the
supplement to the EA, so the document should be sufficient. Not so. Providing
public comment and following some of NEPA’s other procedures doesn’t make a
document a required NEPA document. See Idaho Sporting Congress, 222 F.3d at
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568.
The Service’s task on remand was clear: “prepare a supplemental
environmental assessment . . . .” (Doc. 50 at 46.) The Service didn’t do that.
This decision has nothing to do with the quality or the adequacy of the
Service’s lynx analysis. The Service might very well have produced a
substantively useful cumulative effects analysis. But, regardless of the quality of
the analysis, the Service has to follow the procedures required by law and this
Court’s previous order. Until the Service does so, the Court will not consider a
motion to dissolve the injunction.
IT IS ORDERED that the U.S. Forest Service’s motion to dissolve the
injunction (doc. 60) is DENIED. The Court will not consider a motion to dissolve
the injunction until the Forest Service complies with the Court’s previous order
requiring the Service to prepare a supplemental environmental assessment and
comply with all the requisite procedures. (See doc. 50.)
Dated this 27th day of March 2013.
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