Bark v. United States Forest Service, No. 19-35665 (9th Cir. 2020)
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The Ninth Circuit granted the Forest Service's request to publish the unpublished Memorandum Disposition with modifications. The panel reversed the district court's grant of summary judgment for the Forest Service in an action alleging violations of the National Environmental Policy Act (NEPA) and National Forest Management Act (NFMA).
The panel held that the Forest Service's determination that the Crystal Clear Restoration Project did not require an Environmental Impact Statement (EIS) was arbitrary and capricious for two independent reasons. First, the effects of the Project are highly controversial and uncertain, thus mandating the creation of an EIS. Second, the Forest Service failed to identify and meaningfully analyze the cumulative impacts of the Project. Because an EIS is required, and because the findings in the EIS could prompt the Forest Service to change the scope of the Project or the methods it plans to use, the panel did not reach the remaining claims. The panel reversed and remanded for further proceedings.
Court Description: Environmental Law. The panel granted appellants’ request to publish the unpublished Memorandum Disposition with modifications; and reversed the district court’s summary judgment in favor of the U.S. Forest Service in an action alleging violations of the National Environmental Policy Act and National Forest Management Act. The Crystal Clear Restoration (“CCR”) Project is a forest management effort and timber sale affecting 11,742 acres in Mt. Hood National Forest. The panel held that the Forest Service’s determination that the CCR Project did not require an Environmental Impact Statement (“EIS”) was arbitrary and capricious for two independent reasons. First, the effects of the Project were highly controversial and uncertain, thus mandating the creation of an EIS. See 40 C.F.R. § 1508.27(b)(4) & (5). Second, the Forest Service failed to identify and meaningfully analyze the cumulative impacts of the Project. BARK V. USFS 3 Because an EIS was required, and because the findings in the EIS could prompt the Forest Service to change the scope of the Project or the methods it planned to use, the panel did not reach the appellants’ other claims. The panel remanded to the Forest Service for further proceedings. Judge Graber concurred in full in the judgment and in all but section III-B of the majority opinion. She agrees that an EIS was required, but would not reach whether the environmental assessments’ discussion of cumulative impacts also was arbitrary and capricious.
This opinion or order relates to an opinion or order originally issued on April 3, 2020.
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