Salmon River Concerned Citizens v. Robertson

32 F.3d 1346, 1994 WL 314807
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 5, 1994
DocketNo. 92-16113
StatusPublished
Cited by90 cases

This text of 32 F.3d 1346 (Salmon River Concerned Citizens v. Robertson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1994 WL 314807 (9th Cir. 1994).

Opinion

TANG, Senior Circuit Judge:

Appellants (collectively, “SRCC”)1 challenge the vegetation management policy for the Pacific Southwest Region adopted by the Chief Forester for the United States Forest Service (“Forest Service” or “Service”). In particular, SRCC challenges the environmental impact statement underlying the policy and issued under the provisions of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. The district court granted summary judgment in favor of the Forest Service. SRCC appeals, arguing that the impact statement is inadequate under NEPA. The Forest Service counters that SRCC lacks standing to press its action, and that its claims lack merit. We find that SRCC has standing, but affirm the district court’s summary judgment in favor of the Forest Service.

BACKGROUND

SRCC filed this action against the Forest Service on February 21, 1991, challenging both the Service’s Region 5 Vegetation Management for Reforestation Final Environmental Impact Statement (“FEIS” or “Impact Statement”) and Record of Decision (“ROD”) of February 27, 1989. Pursuant to these documents, district foresters are authorized to use herbicides on National Forest lands in Northern California and portions of Oregon and Nevada.

The Forest Service is obliged under the National Forest Management Act of 1976 (“NFMA”), 16 U.S.C. § 1601 et seq., to prepare and implement land and resource management plans for our National Forests, one objective being to produce a continuous supply of timber for logging.2 The Service im[1349]*1349plements this objective through reforestation.3 Because competition from other plants often prevents achieving timber yield objectives, the Forest Service intervenes to assist the growth of trees through vegetation management.4

The FEIS at issue in this ease evaluates the use of herbicides as part of the vegetation management plan for the Pacific Southwest Region (Region 5). The lands claimed to be most likely affected are located in Northern California and the Sierra Nevada, totaling approximately six million of the total twenty million acres of National Forest System land in the Region.

The Impact Statement is the culmination of public and private efforts over the last twenty years. The previous environmental impact statement was published in 1974. As a result of increased public concerns about human health and safety, the environment, changes in applicable federal law, and the development of new information and technology, the process of updating that impact statement began in 1981. The process led to a revised impact statement that was published and released for public comment in mid-1983.

In 1984, while the revised impact statement was still under consideration, the Forest Service initiated a moratorium on herbicide use in Region 5. The impetus for this decision was two judicial decisions in which this Circuit precluded government agencies from relying solely on herbicide registration by the U.S. Environmental Protection Agency (“EPA”) to verify herbicide safety for normal use. As a result, this Circuit required agencies to undertake a worst case analysis concerning the safety of herbicides. See Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th Cir.1984); Southern Oregon Citizens Against Toxic Sprays v. Clark, 720 F.2d 1475 (9th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 446, 83 L.Ed.2d 372 (1984).

In response to these two decisions and public comment, the Service supplemented the revised impact statement. With assistance from various consultants, the supplement was published and circulated for public comment in 1986. It included a worst case analysis of the risks from herbicide use to human health, soils, water quality, and wildlife.

The Forest Service published the FEIS now in issue in December 1988. The Impact Statement incorporates and responds to public comments to both the revised impact statement and the 1986 supplement. In doing so, the Impact Statement identifies and evaluates eight alternative vegetation management programs, each employing several methods of controlling vegetation, including mechanical, thermal, manual, chemical, and biological controls.5 Each alternative em[1350]*1350phasizes a specific objective, such as, cost-effectiveness, maximizing timber production, maximizing employment opportunities, preservation of nontimber resources, or minimizing or prohibiting the use of herbicides.

More pertinent to the issues before us, the FEIS evaluates the effect of each of the eight alternatives on, inter alia, soil and water quality, air quality, vegetation, wildlife, fisheries, human health and safety, cultural resources, and scenic quality. The Impact Statement also evaluates the socioeconomic effects of each alternative, including an analysis of economic efficiency and the cost of alternative approaches.

The evaluation of the effects on human health and safety considers risks to forest workers and to the public from the use of thirteen herbicides. The Forest Service accomplished its analysis by applying a “risk assessment” methodology. This methodology compares doses of an herbicide that people may get from applying the herbicide, or from being near an application site, with doses that produced no observable adverse effects in test animals and were considered safe in laboratory studies. Because various factors contributed to uncertainty in this process,6 however, the Service employed several other analytical approaches to conduct a more comprehensive assessment of the risks to human health: hazard analysis, exposure analysis, and risk analysis.7

The resulting risk assessment addresses the potential for herbicides to cause general systemic effects, heritable mutations, synergistic effects, cumulative effects, and effects on sensitive individuals. Unfortunately, missing or unavailable information regarding exposures or certain ill effects produced gaps in the data. These gaps are “evaluated in terms of [their] importance in determining human health risks ... and in terms of the cost and delay required to supply the information.” FEIS at 4-63. As a result, this aspect of the risk assessment includes an assessment of the effects of herbicide applications under three scenarios: a normal or realistic scenario, an abnormal or conservative scenario, and an accident or worst case scenario.8

[1351]*1351Based on these analyses, the FEIS recommends that the Forest Service adopt Alternative 1 as its vegetation management program, which seeks to “maximize flexibility for professional foresters to select the most appropriate treatments, based on site-specific conditions and other considerations, consistent with achieving land management objectives.” Id at 2-14. More specifically, this alternative “allows use of all methods to treat competing vegetation ... adequate ... to meet the timber yield objectives_ However, herbicides are to be used only when essential_” id at 2-14-17.

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Cite This Page — Counsel Stack

Bluebook (online)
32 F.3d 1346, 1994 WL 314807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salmon-river-concerned-citizens-v-robertson-ca9-1994.