A case study on successes and failures in challenging logging activities with adverse cumulative effects on fish and wildlife.

• Author: Hartt, Laura
• Position: Case Note

Last year the Ninth Circuit decided Pacific Coast Federation of Fishermen's Associations, Inc. v. National Marine Fisheries Service (PCFFA), affirming the mandate of the Northwest Forest Plan (NFP) to protect salmonid habitat at multiple scales. More significantly, the court was critical of NMFS for failing to assess the cumulative impacts of several timber sales proposed throughout the habitat of two federally protected salmonids. The PCFFA decision provides important lessons for environmentalists challenging logging activities with adverse cumulative effects on protected species and their habitats. While the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) provide some procedural safeguards to ensure that agencies examine cumulative impacts, the timing and location of federal activities largely limits each agency's obligation to assess cumulative impacts. In particular, courts remain reluctant to require agencies to consider both federal and non-federal activities during cumulative impacts analyses. Also, in spite of recognition that riparian habitats are extremely vulnerable to adverse logging activities, courts refuse to subject cumulative impacts analyses of such activities in these habitats to any greater scrutiny. Like the forests of the Pacific Northwest, the forests of the southeastern United States have experienced dramatic declines in biodiversity due to logging activities. Given the inadequacies of NEPA and NFMA to slow this biodiversity loss, regional plans such as the NFP may be better able to conserve those species threatened by logging's detrimental cumulative effects.

1. INTRODUCTION

   The Umpqua River Basin (URB) is one of Oregon's largest salmonid-supporting watersheds, covering more than 4500 square miles. (1) The URB is formed by the Umpqua River, including the north and south forks, and extends 210 miles from the Cascades westward through the Coast Range to the Pacific Ocean. (2) Over the last century, anthropogenic factors such as logging, grazing, and mining on public lands within the URB have significantly impaired salmonid habitat. (3) Because seventy percent of the URB consists of federal, state or private timber land, logging has been the predominant land use. (4) According to the National Marine Fisheries Service (NMFS), logging and related management practices have led to the decline of salmonids throughout their ranges. (5) Two salmonid species in particular, the Umpqua River (UR) cutthroat trout and the Oregon Coast (OC) Coho salmon, face serious threats because of past and ongoing degradation associated with logging practices on federal lands. (6)

   Recently these threats intensified when the U.S. Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) proposed twenty-three timber sales and other federal activities within the URB. To fulfill its consultation obligations under the Endangered Species Act (ESA), (7) NMFS had to consider whether BLM and USFS timber sales and associated roadbuilding would jeopardizes (8) the endangered UR cutthroat trout (9) and the threatened OC coho salmon. (10) Because the URB lies within the range of the northern spotted owl, the federal sales also must comply with the Northwest Forest Plan (NFP). (11) A key provision of the NFP is the Aquatic Conservation Strategy (ACS), which provides for the restoration and maintenance of the "ecological health of watersheds and aquatic ecosystem contained within them on public lands." (12) NMFS found ACS consistency after examining habitat degradation at a watershed scale (13) and then equated ACS consistency with a "no jeopardy" determination under the ESA. (14)

   In 1998 environmental groups challenged the adequacy of the NMFS consultations, alleging that the sales would jeopardize the protected salmonids. In Pacific Coast Federation of Fishermen's Associations v. NMFS (PCFFA I), (15) the district court agreed, concluding that NMFS violated the ESA and the NFP by arbitrarily and capriciously issuing biological opinions that contradicted scientific evidence (16) in at least two ways. First, the "no jeopardy" determination was erroneous because NMFS ignored site-level degradation when it assessed ACS consistency only at the watershed scale. (17) Second, the "no jeopardy" determination was erroneous because NMFS ignored the immediate impacts of clear-cutting on salmon when it used a ten-year time period (the minimum period for tree regrowth following a clear-cut) to assume that revegetation would restore any degraded habitat. (18) Consequently, the district court determined this "long term/watershed approach" to jeopardy determinations meant that "NMFS [had] virtually guaranteed that no timber sale [would] ever" jeopardize the UR cutthroat trout or the OC coastal salmon. (19) As a result, the district court enjoined the sales. (20)

   In Pacific Coast Federation of Fishermen's Associations v. NMFS (PCFFA II) (21) the Ninth Circuit affirmed the district court, holding that NMFS's approach violated the NFP because "only degradations that persist[ed] more than a decade and [were] measurable at the watershed scale [would] be considered to degrade aquatic habitat." (22) However, the Ninth Circuit opinion emphasized an additional shortcoming of the NMFS consultations: failure to properly address the cumulative impacts of the timber sales. (23) In fact, the court determined that NMFS's disregard of small individual projects "that carried a high risk of degradation when multiplied by many projects and continued over a long time period" was the "major flaw" of NMFS's consultation. (24) PCFFA II suggests two important lessons for land management agencies. First, use of "best science" under the ESA and the NFP requires an environmental impact analysis at temporal and spatial scales appropriate to the species of concern. (25) Second, "best science" under the ESA and the NFP includes a cumulative impact assessment conducted at the project-site scale. (26)

   Environmentalists viewed PCFFA I and PCFFA II as significant legal victories for salmon and other species protected under the NFP. (27) Indeed, the cases probably delayed as many as 170 timber sales proposed throughout the Pacific Northwest and blocked logging on as much as 150,000 acres of federal land in northern California, Washington, and Oregon. (28) However, two of the environmentalists' claims concerning cumulative effects on salmon habitat ultimately failed when the Ninth Circuit refused to hold that NMFS violated the ESA and the NFP by (1) not analyzing the cumulative impacts of nonfederal land activities on salmon habitat, (29) and by (2) determining that logging in the riparian reserves would not jeopardize the protected salmonids. (30) Because the effects of land-use practices, particularly logging, on salmon habitat can be severe, (31) and because more than half of the range of the UR cutthroat trout (32) and nearly two-thirds of the range of the OC coho salmon (33) are under nonfederal ownership, NMFS's failure to consider the cumulative effects of logging in riparian reserves as well as activities on nonfederal lands casts doubt on the legitimacy of its no jeopardy determination. (34)

   More generally, the question arises as to whether the ACS's procedural requirements concerning implementation at multiple scales really offer listed species any more protection than the procedural mandate of the National Environmental Policy Act (NEPA) (35) to analyze significant cumulative impacts. (36) The Council on Environmental Quality (CEQ) (37) defines cumulative impacts as those impacts that "result from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions, regardless of what agency (Federal or nonfederal) or person undertakes such other actions." (38) Cumulative impacts also include insignificant direct effects that become "collectively significant" over time. (39) Presumably, environmentalists could have challenged each timber sale's environmental assessment (EA) (40) for failure to analyze adequately the cumulative impacts on salmonids of all proposed logging activities together with the activities on nonfederal lands and then alleged that those impacts were significant enough to warrant preparation of an environmental impact statement (EIS). (41) Arguably, PCFFA was not really as much about ensuring that the adverse effects of timber sales and roads on the salmonids were fully disclosed as it was about enforcing implementation of the NFP's ACS at multiple scales (and perhaps guaranteeing disclosure of impacts on federal lands at specific scales). (42) Nonetheless, PCFFA does provide some lessons concerning the potential effectiveness of the NFP and other regional land management plans in protecting species from logging's adverse cumulative impacts. This article considers some of those lessons.

   While other analysts have examined Ninth Circuit holdings with respect to the cumulative impacts of Northwest logging practices, (43) this chapter focuses on the implications of the PCFFA decisions with respect to logging's adverse cumulative effects on protected species and the legal tools available to environmentalists challenging such adverse effects in the Pacific Northwest and beyond. Part II discusses the salmonids at issue in the PCFFA cases, emphasizing the adverse cumulative effects that logging has had on the salmonids and their habitat. The chapter continues by discussing the proposed USFS and BLM logging activities, the NMFS consultations, and the environmentalists' challenges to those consultations. Part II concludes with an analysis of the PCFFA decisions concerning the adequacy of NMFS's cumulative impacts analysis under the NFP and the ESA. Part III explores case law in the Ninth and other circuits, where environmentalists have alleged NEPA or NFMA violations during challenges of logging activities with adverse cumulative effects on protected...