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

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.

I. 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 species. This second part examines how the timing and location of projects can affect the success of these environmentalist challenges and concludes by extracting general NEPA- and NFMA-based patterns of success. Part IV uses a southeastern case study to discuss whether NFMA and NEPA can protect biodiversity adequately or whether regional plans such as the NFP are really better able to conserve those species vulnerable to logging's cumulative impacts.

II. CUMULATIVE EFFECTS OF LOGGING ON UMPQUA RIVER BASIN SALMONIDS

Among the Pacific salmonids, the UR cutthroat trout has one of the most complex life histories, comprising three distinct salmonid life histories: anadromous, resident, and potamodromous. (44) The "highly precise" homing ability of the anadromous form of the UR cutthroat trout allows it to migrate 125 miles upstream to spawn, farther than most anadromous cutthroat trout. (45) All three forms of the UR cutthroat trout have declined steadily because of widespread habitat degradation in the URB, and the particularly "precarious status" of the anadromous cutthroat trout led to a 1996 federal listing of all three life history stages of the species as endangered. (46) Officials have monitored the status of the UR cutthroat trout within the North Umpqua River since 1946, recording a maximum annual count of 2364 in 1966-67 and a minimum annual count of zero in 1992-93. (47) Although the number of adults returning to the South Umpqua River is unknown, (48) the South Fork is even "less conducive" to UR cutthroat trout production than the North Fork. (49)

Similarly, "long-standing, human-induced conditions," including timber cuts and roads, have contributed significantly to the dramatic decline of the OC coho salmon. (50) At the turn of the twentieth century, harvest levels reached 400,000 fish annually, largely because of annual spawning escapement in excess of one million fish. (51) By the late 1980s annual harvests were cut in half, and in 1993 spawning escapement averaged less than 30,000 fish. (52) According to NMFS, the current abundance of the OC coho salmon "may be less than 5 percent of that in the early part of this century," (53) with fewer than 10,000 wild adults remaining. (54) Because of the coho salmon's declining status, NMFS listed the species as threatened in 1998. (55)

A direct link exists between habitat degradation following timber harvests and roadbuilding and the decline of both the UR cutthroat trout and the OC coho salmon. (56) Recently, the United States. Department of Agriculture demonstrated this link in its assessment of salmonid habitat quality for twenty-eight streams within the URB. (57) Of these streams, seventeen were designated as having "low" or "very low" habitat quality and were found in "moderately to heavily roaded and harvested watershed[s]." (58) As recently as 1997, of the more than six thousand miles of coastal streams assessed by Oregon's Department of Environmental Quality (DEQ), only seven hundred miles met all state water quality standards. (59)

Logging can degrade habitat by removing canopy cover and streamside vegetation necessary to keep water temperatures low, maintain high dissolved oxygen concentrations, supply woody debris, minimize erosion, and maintain stable flow regimes. (60) Increased water temperatures and decreased dissolved oxygen facilitate parasitic infection, alter the timing of migration, and accelerate metabolic rates. (61) Loss of woody debris reduces both the habitat available for invertebrate prey and the refuge available for juvenile fish. (62) Erosion increases siltation, which impairs fry emergence and further limits availability of benthic invertebrate prey. (63) Stable flows are needed to supply reliable spawning and rearing habitat as well as to minimize habitat fragmentation. (64) Construction of logging roads degrades fish habitat by increasing erosion, increasing runoff, and culverting potential migration routes. (65) Detrimental logging and roadbuilding activities have compelled NMFS to acknowledge that these past logging practices, when added to the incremental effects of present logging practices, continue to pose a serious threat to saimonid recovery. (66)

A. Proposed Logging Activities and NMFS Consultations under the Northwest Forest Plan

Prior to implementation of the Northwest Forest Plan (NFP), BLM and USFS awarded several timber sales in the URB, (67) at least seven of which were reauthorized by the "emergency salvage timber" (68) provision of the 1995 Rescissions Act. (69) The NFP went into effect in 1994, amending the BLM District Resource Management Plans (RMPs) (70) and the USFS National Forest Land and Resource Management Plans (LRMPs) (71) for those forests within the range of the northern spotted owl. (72) A major component of the NFP was the ACS, which was designed to protect salmon habitat on federal lands. (73) In 1996, NMFS listed the UR cutthroat trout as endangered under the ESA, (74) and considered listing the OC coho salmon as threatened. (75) In those listing decisions, NMFS specifically looked to the ACS not only to "reverse the trend of aquatic ecosystem degradation" but also to hasten fish habitat recovery. (76) Nonetheless, concerns about the cumulative impacts of logging on fish habitat remained. (77) Accordingly, NMFS "encourage[d]" both BLM and USFS to avoid cumulative impacts arising from timber sales sold or awarded before implementation of the NFP. (78)

In 1997, USFS and BLM consulted with NMFS as to whether continued implementation of their regional forest plans (79) would jeopardize salmonids, including the UR cutthroat trout and the OC coho salmon. (80) NMFS prepared a programmatic biological opinion (Programmatic BiOp), which focused on the entire western Oregon forest region and analyzed the effects of ten forest plans on eight salmonid Evolutionarily Significant Units (ESU). (81) During this consultation, NMFS also endorsed a streamlined process for conducting future biological consultations in response to site-specific agency proposals, essentially tiering future consultations to the Programmatic BiOp. (82) Under this existing process, if USFS or BLM proposes an action that may affect protected salmonids at the project-site level, an interagency team uses a matrix of pathways and indicators as well as a checklist to determine whether the proposed action will adversely affect a listed salmonid. (83) If the interagency team concludes that a proposed project would not adversely affect listed species, then the team submits that determination to NMFS. (84) In turn, NMFS relies on this interagency determination to end the informal consultation process. (85) Even if the interagency team determines that the continued implementation of the forest plans may adversely affect the listed species, if no further mitigation is necessary other than that outlined in the forest plans or in the Programmatic BiOp, then again NMFS may end the consultation process without preparing a separate biological opinion. (86)

In the Programmatic BiOp, NMFS relied on the ACS to improve salmonid habitat "over the next few decades" and to "increase[] survival of the freshwater life-stages" of the salmonids. (87) The consultation acknowledged that ACS objectives must be met at multiple scales (88) and recognized that cumulative effects "at the landscape level from numerous actions, if not fully arrested at the project scale," would reduce the probability of salmonid survival and recovery. (89) With respect to riparian reserves, (90) NMFS noted that the reserves are "essential" buffers designed to "ensure that the critical interface between upland management actions and instream salmonid habitat" is managed to protect salmonid habitat. (91) NMFS also considered the cumulative effects of logging and other activities on salmonid habitat, noting that nonfederal activities in the URB "have contributed substantially to temperature and sediment problems." (92) NMFS chose to incorporate these nonfederal effects into the environmental baseline (93) and assumed that patterns and intensities of land use on nonfederal lands would not change. (94) In spite of finding that under the environmental baseline the "biological requirements for freshwater life stages" of UR cutthroat trout and OC coho salmon were "not being met" and that "[a]ny further degradation" of habitat would have a "significant impact" on salmonids, (95) NMFS concluded that the forest plans would not jeopardize the species. (96)

Later in 1997, BLM and USFS consulted with NMFS on several timber sales and roads proposed for the URB. (97) In June, BLM proposed fourteen timber sales and several new permanent and semi-permanent roads. (98) At that time, no logging was proposed in the riparian reserves. (99) However, the opinion was later amended to concede that some logging would occur in riparian reserves to "accelerate the attainment of large trees to serve as a future source of large woody debris" while remaining consistent with ACS objectives. (100) In July, BLM proposed fifteen additional timber sales as well as several semi-permanent roads and some logging in riparian reserves. (101) Also in July, USFS proposed two sales, one of which would involve nearly twenty acres of riparian reserve. (102) The three BiOps concluded that the proposed BLM and USFS activities in the URB would not jeopardize the UR cutthroat trout or the OC coho salmon. (103)

Environmentalists challenged the Programmatic BiOp as well as the site-specific BiOps. (104) Although the district court upheld the Programmatic BiOp, which had found that the continued implementation of the forest plans would not jeopardize the UR cutthroat trout, (105) the court rejected the site-specific BiOps, holding that NMFS "could not rationally conclude on the record before it" that the proposed sales "would not likely jeopardize the continued existence of the Umpqua River cutthroat trout." (106) As the environmentalists alleged, the streamlined consultation revealed that the watersheds under consideration were already degraded and that the sales would not meet ACS objectives. (107) The court agreed with the environmentalists, holding that the no jeopardy determination was erroneous because NMFS failed to ensure that the projects "were consistent with the ACS's mandate that agencies maintain and restore aquatic systems within the range of the northern spotted owl." (108) The court granted summary judgment with respect to the sales authorized by the site-specific consultations, and NMFS halted the timber sales. (109)

In November and December of 1998, BLM and USFS reinitiated consultation with NMFS to assess the potential effects of twenty-three of the previously proposed timber sales and associated roadbuilding on the UR cutthroat trout and the OC coho salmon. (110) To fulfill its formal consultation obligations under section 7 of the ESA, NMFS completed four BiOps. (111) In two of these BiOps, NMFS assessed the effects of eight BLM timber sales proposed for watersheds of the South Umpqua River, seven to occur within the Myrtle watershed alone. (112) These BiOps also assessed seven BLM timber sales proposed for watersheds of the Umpqua River mainstem, three in the Upper Smith watershed and two in the Elk watershed. (113) Meanwhile, USFS requested section 7 consultation on proposed road construction and grazing activities in the Upper Smith and Elk watersheds. (114) Finally, both BLM and USFS consultations required assessment of eight additional timber sales proposed for watersheds of the North Umpqua River, seven to occur within the Little River watershed alone. (115) USFS also proposed roadbuilding activities within North Umpqua River watersheds. (116) Again, NMFS determined that the proposed activities were not likely to jeopardize either salmonid, (117) and once again, environmentalists challenged the adequacy of the biological opinions in district court (118) and then on appeal in the Ninth Circuit. (119)

B. Judicial Review of the NMFS Consultations

In PCFFA I, the environmentalists challenged the four site-specific BiOps on several grounds. First, the environmentalists contended that the ACS consistency and no-jeopardy determinations were in error because NMFS examined project impacts at a watershed-level rather than a site-level scale, effectively masking each sale's impacts. (120) The environmentalists further alleged that the consultations were flawed because NMFS used a ten to twenty-year time frame to determine ACS compliance, which essentially "assum[ed] away" short-term, adverse effects by "looking so far ahead to determine when clear-cut forest [would] be fully recovered ..." (121) The environmentalists also challenged the BiOps because NMFS ignored cumulative effects arising from nonfederal activities in the UR Basin. (122) Finally, the environmentalists alleged that NMFS ignored riparian reserve violations in authorizing the sales. (123)

The district court agreed with the environmentalists with respect to the spatial, (124) temporal, (125) and riparian claims, (126) but rejected the nonfederal cumulative impacts claim. (127) The court granted the environmentalists' motion for summary judgment, (128) and NMFS and intervening timber operators appealed. (129) In PCFFA II, the Ninth Circuit affirmed the district court with respect to the temporal, spatial, and private lands claims, but reversed the court with respect to the alleged riparian reserve violations. In its opinion, the appellate court also recognized the implications of scale to cumulative impacts analyses. (130) Simply put, NMFS's large-scale analyses artificially diluted cumulative impacts.

1. Upholding Temporal, Spatial, and Cumulative Impacts Claims

In affirming the district court, the Ninth Circuit found that the NMFS consultation was inadequate on temporal, spatial, and cumulative grounds. Temporally, NMFS's use of a ten- to twenty-year time frame to assess the feasibility of passive habitat restoration (that is, natural tree growth) exceeded the lifespans of the UR cutthroat trout (131) and OC coho salmon. (132) Therefore, the time frame was incongruous with the life history and migratory needs of these two species. (133) Because the lifespan of the listed salmonids is shorter than ten years, the court correctly noted that ten years of habitat degradation in a given creek could lead to the extinction of either subspecies returning to that creek to spawn. (134)

Spatially, NMFS's choice of a watershed-level analysis to assess the biological effects of the timber sales led to a dilution of effects that, according to the Ninth Circuit, was "tantamount to assuming that no project will ever lead to jeopardy of a listed species." (135) The Federal Guide for Watershed Analysis, which was drafted to help meet the Northwest Forest Plan's ACS goals, stipulates that agencies should analyze species viability at "appropriate scales" but that it "may be inappropriate to analyze viability of wide-ranging species within analyses at the watershed or site scale." (136) Moreover, NMFS's no-jeopardy determination did not reflect the Programmatic BiOp's documentation of significant site-level degradation. (137) In that BiOp, NMFS concluded that the "biological requirements" for both UR cutthroat trout and OC coho salmon were not being met, that "there must be a significant improvement" in the condition of their habitat, and that further degradation would have a significant effect "due to the level of risk that listed, proposed, and candidate salmonids presently face." (138)

Finally, the Ninth Circuit determined that NMFS's failure to consider the cumulative impacts of these project-site degradations violated the NFP. (139) In PCFFA II, the court noted that the Northwest Forest Plan's primary mission is to prevent degradation and restore habitat over large scales and that this mission is unachievable if agencies ignore "the cumulative effect of individual projects on small tributaries within watersheds." (140)

2. Rejecting Riparian Reserves Claims

The purpose of ACS riparian reserves is to maintain and restore riparian vegetation and intermittent stream function. (141) As a general rule, activities in the riparian reserves that prevent attainment of ACS objectives are prohibited. (142) Not only must the agency conduct a proper watershed analysis before changing riparian reserve boundaries, (143) but such changes also must comply with NEPA. (144) Furthermore, the ACS prohibits timber harvests, providing very narrow exceptions for salvage harvests that do not prevent attainment of ACS objectives. (145) The ACS also imposes substantial limitations on roads within riparian reserves by discouraging new roads generally and by prohibiting them specifically in wetlands. The ACS sets construction guidelines necessary to meet ACS objectives by requiring the modification of existing roads and the provision of fish passages at "all road crossings of existing and potential fish-bearing streams." (146)

In PCFFA I, the district court held that NMFS's conclusion that timber sales within riparian reserves would not violate ACS standards was arbitrary and capricious. (147) As the court recognized, the ACS only allows "narrow exceptions for salvage logging and thinning" in riparian reserves to accelerate forest recovery or otherwise attain ACS objectives. (148) NMFS justified the ACS violations by pointing to exceptions for research, reduction of insect infestation, and fire prevention, but none of these exceptions bore any "real relation" to aquatic impacts. (149) Finding no "rational connection" between the proposed sales and attainment of ACS objectives, the court decided that NMFS's analysis violated the NFP and enjoined the sales. (150)

In one short paragraph, the Ninth Circuit vacated the district court order enjoining the riparian reserve sales, stating only that the appellate court found "nothing in the record to call into question NMFS's opinions" regarding the sales. (151) This reversal was surprising given the lack of support in the biological opinions for NMFS's conclusion that the BLM and USFS sales were consistent with the ACS. The district court mentioned that NMFS had "approved several sales that [would] log in riparian reserves as part of commercial thins or salvage logging" and identified three specific sales (Little River Demo, Sugar Pine Density Management, and Red Top Salvage II) where NMFS concurred with the other two agencies in spite of evidence that ACS objectives would not be met. (152) With respect to the Red Top Salvage II and Sugar Pine Density Management sales, NMFS stated that it was unclear whether the proposed sale would meet ACS objectives. (153) The NMFS opinion concerning the Little River Demo is even more contradictory. At the project level, both USFS and NMFS agreed that the sale would "adversely affect UR cutthroat trout." (154) At the watershed level, again USFS and NMFS agreed that the sale was in "conflict" with ACS objectives. (155) The sale purportedly was intended to examine the effects of harvests on "biological, social, and economic" considerations. (156) Ultimately, NMFS abstained from "second-guessing" the details of the research project and concluded that "violation" of ACS objectives was "justified" under a research exception. (157)

3. Rejecting Nonfederal Lands Claims

More than half of the land within the range of the UR cutthroat trout is private, county, or state land, (158) while nearly two-thirds of the land within the range of the OC coho salmon is under state or private ownership. (159) According to NMFS, not only have activities on nonfederal lands "contributed substantially to temperature and sediment problems" in the URB, but nonfederal activities probably have had a greater influence on salmonid habitat than federal activities have had. (160) In the earlier action challenging the Programmatic BiOp, the district court decided that NMFS sufficiently considered activities on nonfederal lands. (161) This holding also was surprising given the rather cursory discussion of private-land activities during NMFS's cumulative impacts analysis. In the Programmatic BiOp, NMFS admitted that significant improvements in fish production off of federal land were unlikely without changes in nonfederal land-use patterns along riparian zones. (162) NMFS then noted that it was "not currently aware" of any changes to existing activities on nonfederal lands that "would cause greater impacts than presently occur." (163) NMFS assumed that nonfederal land owners will "take steps" to avoid land use that might result in unauthorized take of the UR cutthroat trout. (164) Nowhere in the opinion does NMFS discuss the actual cumulative impacts on salmonids of activities on both federal and nonfederal lands. Furthermore, NMFS's declaration that "future private and State actions will continue at similar intensities as in recent years" (165) seemingly excuses NMFS from considering nonfederal actions in cumulative impacts analyses for future site-specific consultations.

In PCFFA I and PCFFA II, both courts rejected the plaintiffs' claims concerning cumulative impacts of degradation on nonfederal land. The district court acknowledged the added complication of the "checkerboard pattern of federal and nonfederal land ownership" in the Roseburg BLM district and agreed with the plaintiffs that "conditions on nonfederal lands in the range of the Umpqua cutthroat trout have contributed significantly to the degradation" of its habitat. (166) The PCFFA I court also recognized that temperature and sediment problems in the URB are due in part to forestry and other activities on nonfederal lands. (167) However, the district court noted its earlier decision concerning the Programmatic BiOp and declined to address the issue further "since it was resolved in the earlier litigation." (168) In just two sentences, the Ninth Circuit agreed with the district court that the issue of impacts from nonfederal activities "had been disposed of" in previous litigation and affirmed. (169)

III. OTHER CUMULATIVE IMPACTS CHALLENGES UNDER NEPA, NFMA, AND THE ESA

The PCFFA litigation is unique because environmentalists challenged NMFS's biological opinions, whereas litigation concerning cumulative impacts analyses generally arises when environmentalism challenge the EA/FONSI, the EIS, or the forest planning documents required of the land management agencies. Thus, while the NFP's ACS and the ESA drove the analyses in the PCFFA cases, NEPA and, to a lesser extent, the ESA or NFMA tend to drive the analyses for forests outside the range of the northern spotted owl. This latter two-prong approach includes both procedural and substantive components. Procedurally, NEPA contains requirements that agencies must fulfill when determining whether a proposed action will have significant adverse effects (including cumulative ones) on protected species. Substantively, the ESA and NFMA contain standards for survival, recovery, and habitat that apply to listed, threatened, and endangered under the ESA (170) or to those species designated as management indicator species (MIS) (171) or sensitive species (172) within an LRMP prepared in compliance with NFMA. Whether environmentalists succeed when bringing these two-prong challenges seems to depend more on the temporal and spatial scales of the proposed cumulative actions than on the actual scale at which the protected species experience adverse cumulative effects.

Under NEPA, agencies must examine past, present and future actions by federal, state, and private entities when analyzing the cumulative impacts of proposed federal activities on the environment. (173) As the next section shows, within the logging context, environmentalists have challenged both the temporal and spatial aspects of these NEPA cumulative impacts analyses with mixed success. For example, with respect to timing, environmentalists generally are able to allege that an agency's failure to include concurrent federal actions, such as multiple timber sales, or sequential federal actions, such as roadbuilding to access future logging areas, violate NEPA. However, although NEPA does require agencies to consider past activities in determining the cumulative effects of proposed actions, courts are reluctant to require agencies to include the adverse effects of historical logging practices in their analyses. With respect to space, many federal actions remain relatively immune from environmentalists' suits. For example, although NEPA requires federal agencies to consider the cumulative effects of proposed actions occurring on nonfederal lands, courts have virtually ignored this requirement. Also, in spite of recognition that riparian habitat is particularly susceptible to erosion and sedimentation following logging and roadbuilding that may, to some extent, be prohibited indirectly by NFMA, (174) environmentalists seem unable to convince the courts that agencies should employ heightened scrutiny when analyzing cumulative effects in these riparian areas. Unfortunately for many species, nonfederal and riparian-area activities have a tremendous adverse effect on a species' habitat and survival.

A. Mixed Success of Time-Related Challenges

The timing of agency action can exacerbate logging's cumulative effects. In PCFFA, environmentalists were concerned about multiple sales and the roadbuilding accompanying these sales. Additional timing concerns arise when agencies propose roads to access future timber sales or simply ignore historical land use practices.

1. Concurrent Timber Sales

For the most part, environmentalists have challenged successfully USFS projects involving multiple, concurrent timber sales with adverse cumulative effects on protected species and habitats. In addition to PCFFA, four other cases illustrate these environmental successes in the Ninth Circuit: Sierra Club v. USFS (Sierra Club I), (175) Neighbors of Cuddy Mountain v. USFS (Cuddy Mountain), (176) Idaho Sporting Congress v. Thomas (Idaho Sporting), (177) and Blue Mountains Biodiversity Project v. Blackwood (Blue Mountains). (178)

In Sierra Club I, the plaintiffs claimed that USFS violated NEPA by not preparing an EIS prior to approving nine clear-cut timber sales in California's Sequoia National Forest, five of which contained giant sequoia redwoods. (179) USFS argued that "modified clear-cutting," which involved the removal of all vegetation except for the giant redwoods, would "enhance" giant sequoia regeneration by creating "bare mineral soils and sunlight." (180) The Sierra Club presented witness testimony to substantiate its claim that cumulative adverse effects on fish, wildlife, watersheds, and recreational resources would result from the sales. (181) Specifically, witnesses discussed the cumulative effects of road construction and logging resulting from changes in stream morphology, increased soil erosion and sedimentation, and reduced vegetation cover, all of which negatively affect trout reproduction and survival. (182) One expert witness testified that even a single timber sale could have cumulative effects on a national forest, (183) and that with respect to "commercial logging and roadbuilding you will have cumulative effects without exception." (184) The court found that the contradicting testimony led to "speculation on cumulative impacts" and that the purpose of the EIS was to "obviate the need for such speculation by ensuring that available data are gathered and analyzed" prior to project implementation. (185) Consequently, the Ninth Circuit enjoined the sales, holding that USFS's failure to prepare an EIS to analyze significant cumulative impacts was inadequate under NEPA. (186)

In Cuddy Mountain, the plaintiffs challenged the EIS for a USFS timber sale proposed in the Cuddy Mountain Roadless Area of Idaho's Payette National Forest, alleging that the agency failed to consider the cumulative impacts of the Grades/Dukes timber sale in conjunction with three other timber sales proposed within the roadless area. (187) In the original EIS, USFS acknowledged that past logging practices, together with future harvests of old growth forest, could isolate the pileated woodpecker (an MIS) potentially causing long-term declines and possibly eradicating the species from the local area. (188) In the supplemental EIS, the agency provided little detail concerning the cumulative impacts of the timber sales on the woodpecker's old growth habitat. (189) The Ninth Circuit found it significant that USFS both failed to characterize the amount of old growth forest that would be destroyed by the four combined sales and failed to specify whether the sales would cumulatively destroy the same woodpecker home ranges. (190) Because USFS effectively deferred its obligation to consider the cumulative impacts of the proposed and future sales, the Ninth Circuit held that USFS violated NEPA and enjoined the Grades/Duke sale. (191)

In Idaho Sporting, the plaintiffs challenged the EA for a 1993 USFS timber sale proposed in the Miners Creek and West Camas Creek subwatersheds of Idaho's Targhee National Forest. (192) The sale proposed harvesting 3.1 million board feet over 970 acres in the two subwatersheds, affecting streams inhabited by brook trout, an MIS. (193) Without disclosing that brook trout were present in the sale area, USFS issued a FONSI, stating that the 1993 sale would not significantly affect the environment. (194) Three years later, USFS proposed an additional sale of 7.2 million board feet within the West Camas Creek subwatershed without supplementing the 1993 EA to reflect the cumulative impacts of the two sales. (195) Although USFS alleged that the 1996 EA contained a cumulative impacts analysis for the two sales, the Ninth Circuit found this analysis sparse. (196) Because USFS failed in the 1993 EA to disclose the existence of the MIS, the court enjoined the sale and ordered the agency to prepare an EIS for the proposed 1993 sale on the presumption that USFS would rectify any inadequacies in the 1996 EA cumulative impact analysis in the EIS for the 1993 sale. (197)

Blue Mountains (198) represents an extreme example of USFS NEPA violations for failure to consider significant cumulative impacts. In Blue Mountains, environmentalists challenged the EA for a proposed salvage timber sale, alleging that USFS should have prepared an EIS to address significant cumulative impacts of additional fire salvage sales on spawning populations of summer steelhead and wild spring chinook salmon. (199) USFS had proposed timber sales in five separate fire salvage areas within the North Fork John Day watershed of Oregon's Umatilla National Forest but only prepared an EA for one area, allowing three separate timber sales, which would yield 30 million board feet on 2,720 acres of land with "high erosion potential" and require eighteen new, temporary, and reconstructed roads. (200) The EA did not mention the sales proposed in the remaining four salvage areas, did not discuss the total volume or area proposed for logging in the salvage areas, and did not identify the location of any of the eighteen proposed roads or stream crossings. (201) The Ninth Circuit concluded that USFS should have prepared an EIS to address the cumulative impacts of all the salvage sales that would "yield 40-55 million board feet logged from the same watershed, require approximately 20 miles of road construction and involve tractor-skid logging on steep slopes." (202) Unfortunately for the environmentalists and the salmonids, although the court issued a preliminary injunction that remained in effect after the litigation, more than eighty percent of the timber in the salvage area had already been cut. (203)

While environmentalists in the Ninth Circuit have been mostly successful in enjoining concurrently proposed logging activities with significant cumulative impacts, and in some cases forcing the agency to prepare an EIS to analyze these impacts, environmental groups in other circuits have had mixed success when bringing similar claims. In Kleissler v. USFS (204) the Third Circuit dealt a major blow to environmentalists who alleged that, contrary to the EA, timber sales proposed for the Minister Watershed and South Branch Willow Creek of Pennsylvania's Allegheny National Forest would have adverse direct and cumulative impacts on migratory birds and the endangered Indiana bat. (205) During the administrative appeal for the South Branch sale, the plaintiffs expressed concerns about the cumulative effects of both sales. (206) Upon appeal to the district court, the plaintiffs raised the same allegations with respect to cumulative effects along the South Branch. (207) However, in their decisions both the district court and the Third Circuit focused on the appeal of the non-cumulative impacts claims, concluding that the issues raised in district court were more specific and significantly different from those raised during the administrative appeal. (208) Based on this "side-by-side" comparison of the claims raised during the administrative appeal with those raised during the federal appeal, the Third Circuit decided that Kleissler failed to exhaust its administrative remedies and rejected both the cumulative and non-cumulative impacts claims. (209)

In some respects the opinion of the Western District of Virginia in Shenandoah Ecosystems Defense Group v. USFS (Shenandoah I) (210) echoes the reasoning though not the result of PCFFA II. Shenandoah I involved timber sales, roadbuilding, prescribed burning, and other activities in Virginia's George Washington and Jefferson National Forests (211) and the activities' cumulative impacts on migratory birds, the black bear, and the endangered Indiana bat. (212) Environmentalists alleged that the USFS EA concluded that the cumulative effects of the proposed activities would be insignificant without providing a rationale. (213) The court considered whether USFS analyzed cumulative impacts within adequate "spatial and temporal bounds" and then upheld the USFS analysis as within a "rational spatial and temporal scope." (214) The district court failed to clarify this conclusion, stating only that the proper "geographic scope of analysis" for the Indiana bat was the "entire George Washington National Forest." (215) Additionally, because the plaintiffs did not specifically address the cumulative impacts of five other proposed timber projects during their administrative appeal, the district court held that the plaintiffs failed to exhaust their administrative remedies (216) with respect to these five sales. (217)

In contrast to Kleissler and Shenandoah I, environmentalists in the Eleventh Circuit won a major legal victory in Sierra Club v. Martin, (218) where the court upheld a programmatic challenge of a forest LRMP in conjunction with the site-specific challenges of individual timber sales. (219) USFS had proposed seven timber sales in the Chattahoochee and Oconee National Forests within the Georgian Appalachian Mountains. (220) In addition to the sale of timber rights to 2000 acres, the USFS action would have allowed clear-cutting, eighteen miles of roadbuilding in wilderness areas, and 155 tons of sedimentary discharge into streams. (221) USFS admitted that several MISs, including aquatic species such as the bog turtle, green salamander, blue shiner, amber darter and brook trout, (222) inhabited the project sites and that the proposed timber sales could destroy individuals of some of these MISs. (223) Without collecting further inventory or population data, the agency concluded that because the MISs could be found elsewhere in the forest, the effect of the sales on those species would be insignificant. (224) However, as the Eleventh Circuit noted, because USFS reached its conclusion without any population data for half of the species, the agency could not "reliably gauge the impact of the timber projects on these species." (225) Noting that the proposed timber projects would "amount to 2000 acres of habitat change," the court enjoined the activities and remanded to the agency to collect population data for MISs in the project areas. (226)

2. Roadbuilding and Future Timber Sales

Another timing issue that arises in the logging context occurs when agencies propose roadbuilding to provide access for future timber sales. As the following three cases illustrate, environmentalists have been successful in challenging agency decisions that failed to include the roads and the sales in a single cumulative impacts analysis.

In Thomas v. Peterson, (227) the plaintiffs challenged an EA, alleging that USFS violated NEPA and the ESA by failing to analyze the cumulative impacts of a proposed gravel road and three future timber sales for which the road was being built in Idaho's Nez Perce National Forest. (228) USFS first prepared an EA for the road without mentioning listed species or future timber sales, and then prepared individual EAs for each timber sale without mentioning the road or the other sales. (229) The United States Fish and Wildlife Service (FWS), Environmental Protection Agency, and Idaho Department of Fish & Game agreed with the environmentalists that the road and timber sales would have significant cumulative effects that should have been considered in a single EIS. (230) FWS emphasized that the proposed actions cumulatively would increase sedimentation in the Salmon River (a Wild and Scenic River) and adversely affect salmon and steelhead trout. (231) According to FWS, cumulative impacts "may be leading to aquatic habitat degradation" that could not be accounted for in an individual EA. (232) USFS also failed to consult with FWS to assess the cumulative impacts of USFS's proposed actions on the endangered Rocky Mountain gray wolf. (233) Again in dissent from USFS, FWS agreed with the environmentalists that USFS's failure to "document cumulative impacts could be having present and future detrimental effects on wolf recovery potential." (234) Contrary to USFS's assertions that failure to consult was merely a "technical violation," the Ninth Circuit found that the agency's failure to prepare an EA prior to approving a road in an "area in which it has been determined that an endangered species may be present cannot be considered a de minimis violation of the ESA." (235) Recognizing that the "timber sales [could not] proceed without the road" and that the "road would not be built but for" the timber sales, the Ninth Circuit concluded that the road and timber sales were "inextricably intertwined" or "connected actions" (236) requiring a single EIS. (237) Because substantial questions remained as to whether the proposed actions would have significant cumulative effects, the court enjoined the sales pending completion of a valid EIS. (238)

In another Ninth Circuit case, Save the Yaak Committee v. Block (Save the Yaak), (239) the plaintiffs brought ESA and NEPA claims against USFS, alleging that the agency's EA/FONSI was erroneous because the cumulative impacts of logging roads and timber harvests would severely affect grizzly bear populations mad caribou habitat in Montana's Kootenai National Forest. (240) Although the court dismissed the ESA claims because of inadequate notice, (241) the court upheld the NEPA claims and enjoined the road construction and the timber sales. (242) Noting that a USFS wildlife biologist believed that the EA was "inadequate with regard to wildlife," that the EA section dealing with wildlife was "five brief sentences," and that only one of those sentences dealt with endangered species and only one other mentioned actual effects on wildlife, the court found that USFS failed to take a hard look at the environmental effects of the proposed logging activities. (243)

In a case illustrative of the Second Circuit's position on cumulative impact analyses, National Audubon Society v. Hoffman (National Audubon), (244) environmentalists challenged an EA/FONSI for a proposed road extension and timber sale in the Lamb Brook area of Vermont's Green Mountain National Forest. Under the forest's LRMP, the proposed project extended an existing USFS road another 1.3 miles into critical black bear habitat. (245) To mitigate the effects of a probable increase in all terrain vehicle (ATV) use in the area, USFS also proposed "obliterat[ing]" the road near its end to cause ATV users to think that the road stopped. (246) Because the court found such mitigation scientifically unsupported in its ability to reduce the cumulative impacts of probable increases in ATV use within black bear habitat, the court held that USFS violated NEPA and instructed the agency to prepare an EIS. (247)

3. Past Logging Practices

While courts generally require agencies to consider present and future activities in cumulative impact analyses, the case law concerning the cumulative impacts of past logging practices on fish or wildlife is sparse. However, the Fifth Circuit's Sierra Club v. Peterson (Peterson I) (248) provides one example where environmentalists failed to convince the court to require agencies to consider historical land use practices in their cumulative impacts analyses. (249)

In Peterson I, environmental groups alleged NFMA violations and sought to enjoin future logging in the Sam Houston, Angelina, Davy Crockett, and Sabine National Forests of eastern Texas because of adverse cumulative effects on the endangered red-cockaded woodpecker and other MISs from twenty years of even-aged timber management practices. Over a strong dissent, the Fifth Circuit affirmed a district court injunction (250) requiring USFS to comply with NFMA by collecting inventory data on MISs (251) before "proceed[ing] with even-aged management in [the eastern] part of the Texas National Forests." (252) Upon a rehearing en banc, the Fifth Circuit reversed its position, deciding that the plaintiffs sought "wholesale improvement" of the timber management practices in Texas forests rather than challenging any specific action. (253) In their amended complaint, the plaintiffs provided twelve examples of "allegedly ripe and allegedly improper timber sales" to support their claim for broad injunctive relief. (254) Much like the plaintiffs in Martin, the environmentalists sought to enjoin future sales as well as even-aged management practices, this time in the national forests in Texas. (255) In spite of the case's similarities to Martin and over a strong dissent, the court refused to enjoin the USFS sales and other activities. (256)

B. Nearly Universal Failure of Space-Related Challenges

Sharply contrasting with the mixed success of timing-related challenges of cumulative impacts analyses are the nearly universal failures of spatial-related challenges. In fact, the courts consistently uphold agency actions that virtually ignore impacts at scales meaningful to protected species within a given project area. For example, in Inland Empire Public Lands Council v. USFS (Inland Empire I), (257) environmentalists challenged an EIS for eight timber sales proposed for the Upper Sunday Creek Watershed in Montana's Kootenai National Forest. (258) The environmentalists alleged that the timber sales would have adverse cumulative effects on populations of several sensitive species within the proposed timber sale area (259) as well as species inhabiting federal lands adjacent to the action area because those populations belonged to the same ecosystem as the populations within the action area. (260) The court rejected the environmentalists' position, stating that such a task would become "particularly burdensome if there [were] a number of different species to examine, each with a different population ecosystem area to analyze." (261) Because "NEPA does not require the government to do the impractical," the court held that USFS fulfilled its EIS obligations. (262)

Analysis of logging's impacts at meaningful spatial scales is further compounded where activities occur on nonfederal lands or in riparian areas. In spite of NEPA's mandate to consider the cumulative effects of both federal and nonfederal activities, courts tend to excuse private land use from the analyses. Also, in spite of recognition that riparian areas are extremely vulnerable to impacts from logging and roadbuilding activities, environmentalists have been unable to convince courts to require that agencies afford riparian areas any greater scrutiny during cumulative impacts assessments.

1. Nonfederal Lands

As in PCFFA and almost universally, courts have refused to require agencies to include nonfederal activities in their cumulative impacts analyses. Two notable exceptions are Resources Limited, Inc. v. Robertson (263) and Kettle Range Conservation Group v. USFS (Kettle Range). (264) In Resources Limited, environmentalists alleged that the USFS EIS for the Flathead National Forest Land and Resource Management Plan (LRMP) was inadequate because it did not address the cumulative impacts of logging on 270,000 acres of state and private land adjacent to grizzly bear habitat in the national forest. (265) Although the Ninth Circuit did not "require consideration of nonfederal cumulative impacts in the programmatic EIS," the court did expect USFS to analyze those cumulative impacts before authorizing future site-specific sales. (266)

Environmentalists in Kettle Range challenged a USFS EIS prepared for timber harvesting and "restoration" proposed in response to a Douglas-fir bark beetle outbreak in the Colville and Idaho Panhandle National Forests. (267) Among the protected wildlife species of concern within the project area were grizzly bear, gray wolf, Canada lynx, and pine marten. (268) The final EIS adopted by USFS authorized logging on 4600 acres, prescribed burning on 3269 acres, and "lopping and scattering" dead or dying trees on 1493 acres. (269) The environmentalists provided evidence that at least nine additional state and private logging projects were pending and that three of these were approved before USFS published the final EIS. (270) The nonfederal projects involved logging in riparian areas on highly erodible and unstable soils, logging in wetlands, and logging in lynx habitat; at least one of these projects would log nearly 6000 million board feet over 555 acres. (271) The environmentalists alleged, and the district court agreed, that the EIS should have included an analysis of the cumulative effects of nonfederal logging activities within the project area. (272) The court noted that the sheer size of the nonfederal projects meant that USFS had to consider those projects when determining whether the "small" effects of the federal project on wildlife would be "compounded by habitat obliteration" on the nonfederal lands. (273) The district court held that USFS violated NEPA when it failed to take a hard look at the cumulative impacts of federal and nonfederal logging in the project area. (274) Consequently, the district court enjoined the project and ordered USFS to prepare a supplemental EIS to address several NEPA deficiencies, including the agency's failure to analyze cumulative impacts of present and reasonably foreseeable federal and nonfederal activities in the project area. (275)

Standing in sharp contrast to Resources Limited and Kettle Range are several cases from the Ninth Circuit and other circuits where environmentalists unsuccessfully argued that agencies violated NEPA by ignoring significant cumulative impacts arising from nonfederal activities. In Inland Empire Public Lands Council v. Schultz (Inland Empire II), (276) environmentalists challenged an EA/FONSI, alleging that USFS did not adequately consider the cumulative impacts of logging and roadbuilding before offering a timber sale in the Calispell River watershed of Washington's Colville National Forest. (277) USFS prepared a supplemental EA for the sale that "revealed that cumulative effects would surpass the threshold of concern" for the watershed, mostly because of past logging practices on adjacent private lands. (278) Nonetheless, as the court noted, USFS "concluded that the sale itself would cause little environmental harm." (279) The supplemental EA also excluded 1200 acres of national forest that the ten-year plan identified as "possible harvest areas" on the basis that these future harvests were merely "speculative." (280) Although the Ninth Circuit recognized that "significant environmental effects certainly are possible when more than half of a watershed is logged within a 30-year span" as projected, the court deferred to agency discretion and rejected the plaintiff's NEPA claims. (281)

The Eighth Circuit rejected a NEPA claim brought by plaintiffs in Sierra Club v. USFS (Sierra Club II), (282) challenging the EA for two USFS timber sales and thinning and roadbuilding projects proposed in the Victoria Project Area of the Black Hills National Forest in western South Dakota and northeastern Wyoming. (283) The Sierra Club alleged that old growth logging would eliminate habitat for sensitive species, including ruby-crowned kinglet, goshawk, and three-toed woodpecker, (284) and that the district court erred in concluding that NEPA did not require USFS to assess significant cumulative impacts due to activities on private lands adjacent to the national forest. (285) The Eighth Circuit agreed that NEPA requires USFS to consider these significant cumulative impacts from private land use. (286) However, the court found this "error of little consequence," because, as in PCFFA, the agency could reasonably assume that future private land use would follow the status quo. (287)

In the Seventh Circuit, environmentalists in Sierra Club v. USDA (288) and Indiana Forest Alliance, Inc. v. USFS (289) alleged that the agency failed to consider cumulative impacts arising from forest practices on privately managed lands. In both cases, the agencies were "opening" up federal forests, which would provide habitat for game animals but also potentially adversely affect the habitat of migratory birds. In Sierra Club v. USDA, the plaintiffs challenged the EIS for an amended version of the Shawnee National Forest LRMP, alleging that USFS violated NEPA by approving the creation of more federal openland habitat together with large openings on adjacent private land, (290) which would have adverse cumulative impacts on the forest interior habitat of sensitive species, such as the scarlet tanager, cerulean warbler, and wood thrush. (291) In an unpublished opinion, the court rejected the plaintiffs' claim that the USFS cumulative impacts analysis of private forest practices violated NEPA. (292) The court found that the EIS's "attempt to strike a careful balance" between forest interior species and "openland species [was] well-reasoned and rational." (293) Fortunately for the plaintiffs in Sierra Club v. USDA, the court did find that the agency's failure to consider the cumulative effects of federal activities other than those involving the creation of these openlands violated NEPA. (294) Specifically, BLM was considering new oil and gas leases while USFS proposed to open more areas for ATV use. (295) USFS failed to consider these other effects alone or in combination. (296) In the end, the Seventh Circuit remanded the EIS to USFS. (297)

The plaintiffs in Indiana Forest challenged the EIS supporting a USFS decision to create and maintain 972 "forest openings" covering 2241 acres in the Hoosier National Forest. (298) The plaintiffs alleged that the burning and mowing of these openings would have adverse cumulative effects on the scarlet tanager and forty-six other neotropical migrant birds. (299) The plaintiffs were particularly concerned because the agency's EIS failed to consider impacts of forest practices on private lands adjacent to the national forest. (300) Like the Umpqua National Forest in PCFFA, Indiana's Hoosier National Forest consists of a checkerboard of private and federal land. (301) In an unpublished opinion, the district court held that the plaintiffs failed to meet their burden of proof concerning cumulative impacts on private lands because their allegations were "unarticulated speculation about what might happen on private lands in the future." (302)

2. Riparian Habitat

Although agencies recognize that logging activities can produce severe cumulative effects in riparian areas, (303) the courts remain reluctant to require agencies to consider the intensity of these effects in cumulative impacts analyses. Unfortunately, salmonids are not the only species vulnerable to riparian habitat degradation, as the following two salamander cases illustrate.

In Shenandoah Ecosystems Defense Group v. USFS (Shenandoah II), (304) environmentalists challenged EA/FONSIs involving three timber sales in Virginia's Jefferson National Forest, two of which were to occur in the James River (JR) watershed, which contained potential habitat for the Peaks of Otter salamander, a sensitive species. (305) Although the proposed actions did not involve clear-cutting and were viewed by the court as small in magnitude, (306) the action areas were in roadless areas adjacent to the James River Face Wilderness. (307) USFS prepared two separate EAs for the JR watershed sales that, according to the plaintiffs, did not discuss the sales' cumulative impacts on water quality. (308) It is unclear exactly why the district court decided that the USFS cumulative impacts analysis was adequate. The court noted that USFS had "divided its analysis of effects into ecological, social, and economic components" and had varied temporally and spatially the scope of review for each "subject." (309) According to the court, USFS had examined the "impact on soil, water and aquatic organisms and native wildlife, and considered the effect each project would have on the environment." (310) The court did not address whether USFS actually discussed the cumulative effects of both sales in either EA. Nonetheless, the district court concluded that USFS had considered effects in detail and refused to conclude that the "Forest Service failed to consider cumulative impacts." (311)

In Appalachian Voices v. USFS (Appalachian Voices), (312) the plaintiffs alleged that USFS violated NEPA by not preparing an EIS to examine the cumulative impacts of a salvage logging operation proposed in the vicinity of North Carolina's Big Snowbird Creek in the Nantahala National Forest.(313) The timber sale would involve harvesting 1.2 million board feet on 178 acres of forest over five activity areas, road reconstruction, and reforestation on 195 acres over six activity areas. (314) According to expert witnesses, lack of erosion control for past activities, including timber operations, roadbuilding, and campsite construction had led to a cumulative increase in sedimentation of Big Snowbird Creek. (315) Environmentalists were concerned that the combined effects of these past actions and the proposed salvage sales would adversely affect the Junaluska salamander, a sensitive species. (316) The environmentalists further alleged that USFS failed to take the requisite hard look at the impact of the salvage operation on the salamander and should have prepared an EIS. (317) However, as the court noted, the USFS biologists agreed that the accumulation of sedimentation would be offset by erosion control measures at the campsites. (318) Furthermore, because FWS biologists stated that the salamander "has never been found further than 100 meters from a stream," and USFS agreed to "minimize salvage efforts within 100 meters of Snowbird Creek," the court upheld USFS's decision not to prepare an EIS. (319)

C. General NEPA and NFMA Lessons

The preceding cases yield at least three important lessons for environmentalists seeking to enjoin logging activities that would have potentially adverse cumulative impacts on fish and wildlife. First, challenges involving federally listed species are not necessarily more likely to succeed than those involving MISs or sensitive species. Although the Ninth Circuit has upheld most challenges involving listed species, (320) the Third Circuit rejected two separate challenges involving the endangered Indiana bat, (321) and the Fifth Circuit rejected a challenge involving the endangered red-cockaded woodpecker. (322) On the other hand, the Eleventh Circuit upheld a challenge involving several MISs, (323) and the Second Circuit upheld a challenge involving sensitive species habitat. (324)

Second, cumulative impacts-related litigation implicates species habitat at a hierarchy of ecological scales, ranging from aquatic and riparian areas to forest interiors to migratory landscapes. These scales seem to influence the success of cumulative impacts-related challenges. Although environmentalists in the Ninth Circuit have been mostly successful in challenging USFS logging projects that would have adverse cumulative effects on aquatic species habitat, particularly for salmonids, (325) environmentalists in other circuits have been less successful when bringing similar claims, (326) This failure may be due in part to the lack of an eastern ACS equivalent to prevent watershed degradation. (327) Even when statutory and regulatory mandates do impose some limits on logging activities in riparian areas, agencies still retain considerable discretion to approve timber sales in riparian areas. (328)

Cumulative impacts related challenges also have focused on forest interior species such as woodpeckers, (329) northern goshawk, (330) gray wolf, (331) lynx, (332) and bears. (333) In these cases, the courts have generally viewed agency failure to disclose the presence of federally listed endangered or threatened species or agency failure to analyze impacts on critical habitat for listed species as serious NEPA violations. (334) However, the courts appear undecided as to whether either NFMA or NEPA requires agencies to monitor or survey unlisted MISs to determine the extent to which logging may cumulatively affect MIS habitat. (335) Because these forest interior species have relatively large home ranges, these species also tend to be more vulnerable to the adverse cumulative effects of land-use practices on adjacent nonfederal lands. Nonetheless, when applying the provisions of either the NFP or NFMA, courts hesitate to enforce NEPA's mandate that agencies take a hard look at cumulative impacts irrespective of their source. (336)

In addition to the salmonids of PCFFA, several other migratory species have been the center of environmental controversies concerning logging's adverse cumulative effects, particularly the Indiana bat (337) and the cerulean warbler, (338) scarlet tanager, (339) and other neotropical migratory birds. (340) Because the life histories of these eastern migratory species are quite complex, habitat variability over time and space because of aggregate of past, present, and future logging and other activities on federal and nonfederal lands is probably the greatest threat to the survival and recovery of these species.

A third important lesson is that regardless of the size of a species' home range, the proper scale for a cumulative impacts analysis remains at the project-site level. (341) However, even at the project-site level, courts are reluctant to enforce NEPA provisions concerning cumulative impacts of nonfederal activities, particularly where private activities are in the past (342) or future activities are uncertain. (343) With respect to present activities on nonfederal land, courts are divided: In at least two cases the agency could assume that activities on nonfederal lands would follow the status quo and therefore would not significantly alter the cumulative impacts analysis, (344) while in another case, the agency had to consider the cumulative impacts of present activities on nonfederal lands together with the proposed logging activities in national forests. (345)

IV. FATE OF SOUTHEASTERN SPECIES IN THE ABSENCE OF REGION-WIDE PROTECTION?

Recently, national concern for the effects of logging practices on biodiversity has shifted from the northwest to the southeast. (346) In particular, southeastern amphibians, birds, and bats face a common threat of cumulative habitat loss and degradation because of logging and other forest practices resembling the cumulative habitat loss experienced by the northern spotted owl, northern goshawk, and salmonids of the Pacific Northwest.

A. Examples of Southeastern Species Vulnerable to Logging's Cumulative Effects

This section takes a closer look at four southeastern species that have been the subject of cumulative impacts-related litigation: Junaluska salamander, Peaks of Otter salamander, red-cockaded woodpecker, and Indiana bat.

1. Junaluska and Peaks of Otter Salamanders

The southeastern United States is a biodiversity hotspot for amphibians, (347) particularly species belonging to the Plethodontidae family, a phylogenetic group of lungless salamanders that first evolved in the Southern Appalachians. (348) The Plethodontid family includes aquatic life forms, such as the Junaluska salamanders (349) (the subject of the Appalachian Voices litigation), and terrestrial life forms, such as the Peaks of Otter salamander (350) (the subject of the Shenandoah II litigation). Plethodontids appear to be especially vulnerable to riparian logging and ground disturbance associated with upland logging; (351) in fact, USFS lists ten plethodontids as "sensitive species" for the southern region. (352)

Both the Junaluska and the Peaks of Otter salamanders are narrow endemics. The Junaluska salamander habitat is restricted to streams in the Blue Ridge Mountains along the North Carolina and Tennessee border, many within the Great Smoky Mountain National Park, (353) and the Peaks of Otter salamander is restricted to nineteen kilometers of forest along Virginia's Blue Ridge Mountains, (354) most within the Jefferson National Forest. (355) Both species have been on FWS candidate species lists dating back to the early 1980s, (356) and as recently as 1999 FWS considered but then denied a petition to list the Junaluska salamander as endangered. (357) Both salamander species are federal "Species of Concern," (358) and the Peaks of Otter salamander is also a "sensitive species" for the Jefferson National Forest. (359) At the state level, the Peaks of Otter salamander is a species of "Special Concern" for Virginia, (360) while the Junaluska salamander is a species of "Special Concern" for North Carolina (361) and a species of "wildlife in need of management" for Tennessee. (362)

The Junaluska salamander is extremely rare, with an estimated population size of fewer than 1000 individuals; at least one herpetologist considers this salamander the rarest in North America. (363) Although FWS considers the population relatively stable, (364) potential threats remain because of sedimentation following logging and road construction. (365) Because each population is small, the species is "inherently more vulnerable to extirpation;" (366) and because clear-cutting has fragmented the species's habitat, recolonization from adjacent populations to offset local extinctions is unlikely. (367)

The Peaks of Otter salamander, while locally abundant with an estimated population size of over 10,000, also remains vulnerable to habitat fragmentation due to clear-cutting. (368) According to the Virginia Department of Game and Inland Fisheries, because populations take fifty to seventy years to recover following clear-cuts, logging remains the species's greatest threat, (369) Although public lands produce just eleven percent of the South's timber, (370) because the Peaks of Otter salamander is found solely on federal land, national forest logging practices will largely determine the survival of this species.

2. Red-cockaded Woodpecker

The red-cockaded woodpecker (subject of the Peterson and Martin litigations) is an example of an old growth-dependent species whose populations have dramatically declined because of logging and other adverse forest management practices in the southeastern United States. The bird has been listed as endangered by FWS since 1970. (371) Biologists estimate that approximately 12,500 birds remain, a decline of 97 percent over the past 100 years. (372) Because more than half the individuals exist in only six populations, this species is extremely vulnerable to habitat fragmentation caused by logging and catastrophic events like hurricanes and pine beetle infestations. (373) This woodpecker is dependent on old growth longleaf pine forests, (374) but after decades of clear-cutting only three percent of those forests remain, mostly on public lands. (375) Fire suppression practices have facilitated hardwood encroachment, making longleaf pine recovery more difficulty. (376) Although some second-growth longleaf pines are approaching 70 to 100 years of age, logging of trees still outpaces tree growth by forty percent. (377) Not only have short rotations and clear-cutting been detrimental to the red-cockaded woodpecker, but increasing demand for pulp wood has led to the conversion of longleaf to loblolly pine forest. (378)

Federal agencies have developed standards and guidelines for managing red-cockaded woodpecker habitat on USFS land, wildlife refuges, military bases, and private land. (379) FWS also has drafted and revised a recovery plan for the species. (380) Whether these species-focused approaches to the woodpecker's recovery will be effective remains to be seen. According to the Association for Biodiversity Information, the "dependence of this species on old-growth pine forest is the single most important critical factor leading to its endangered status," and this old-growth requirement is in "direct conflict with timber management practices on public and almost all private lands." (381) Most of the large populations are found on federal lands: the Elgin Air Force Base and the Appalachicola National Forest in Florida, the Francis Marion National Forest in South Carolina, and the Kisatchie National Forest in Louisiana. (382) Another large population is found in Florida's Blackwater State Forest, but further complicating matters is the state's recent proposal to downlist the species from "threatened" to a "species of special concern." (383)

3. Indiana Bat

One example of a migratory species that is extremely vulnerable to the cumulative effects of forest practices on and off public lands is the Indiana bat, found in the eastern and southern United States. FWS listed this bat as an endangered species in 1967, (384) with critical habitat designated in 1976 (385) and a recovery plan finally approved in 1983. (386) Sixteen years later, FWS revised the recovery plan in part to "highlight the continued and accelerated decline of the species." (387) During the early 1960s, population estimates for the species were around 808,000 individuals; by the mid-1990s the population had dropped nearly 60 percent to 353,000 individuals. (388) Causes for the decline are complex because like many migratory species, the Indiana bat has duel habitat needs: in the winter the bats hibernate in caves or mines while in the summer the bats roost in trees and forage for flying insects along riparian zones or within upland forests. (389)

Early recovery efforts focused on protection of hibernation sites, but as the revised recovery plan acknowledges, more information is needed to understand summer bat distributions. (390) Because Indiana bats prefer to roost in standing dead trees that have loose bark, (391) any removal of burned or dead timber (including salvage logging) may pose a threat to roosting site availability. Also, because the bats tend to forage around riparian and flood plain trees and seem to prefer canopies ranging from thirty to one hundred percent closure, (392) even moderate logging in riparian areas may have adverse effects on bat foraging. Pregnant and lactating females in particular prefer to forage along streams, some traveling as far as 2.5 kilometers from their roosts to reach these foraging areas. (393) Males, on the other hand, prefer to roost and forage near the hibernation sites, (394) so disturbance of the canopy around these sites could exacerbate effects of disturbance on males, by disrupting local temperature and humidity in the winter and by removing roosting and foraging habitat in the summer. Finally, Indiana bats show strong fidelity to both summer roosts and foraging areas, (395) so efforts should be made to retain the essential features of roosts and foraging areas within the bat's range.

B. The Southern Forests, Aquatic Ecosystems, and Private Land Activities

In response to growing concern among resource managers, scientists, and environmentalists about the fate of southern forests, four federal agencies, led by USFS and with the input of more than one hundred scientists from government, industry, and conservation organizations, assessed the status of southern forest ecosystems. (396) The Southern Forest Resource Assessment Summary Report documents the adverse effects of forest activities on southern wildlife species, including the Peaks of Otter salamander, red-cockaded woodpecker, and the Indiana bat. With respect to the Peaks of Otter salamander, the assessment emphasizes the importance of federal lands to this and other "imperiled species," noting the vital role national forests play in preserving biodiversity by providing "wilderness areas, large blocks of forest interior, and a diversity of habitats." (397) The assessment recognizes that the primary threat to the red-cockaded woodpecker is the conversion of hardwood forests to loblolly pine monoculture. (398) Accordingly, the report recommends expanding longleaf pine habitat through prescribed burns and long-rotation harvests. (399) Finally, with respect to the Indiana bat, the assessment states that habitat loss because of deforestation and stream channelization are primary concerns. (400) Because clear-cutting "eliminates roosting opportunities until replacement trees of suitable size become available," the report recommends snag retention in addition to protecting riparian areas. (401)

Clearly, public lands management alone will not determine the fate of these and other species in the southeast, especially given the adverse cumulative effects that can arise from private land use practices. In the southern United States, 89 percent of timberland (approximately 173 million acres) is privately owned. (402) Approximately 38 million acres of this private timberland is owned by the forest industry in contrast to 21.4 million acres owned by federal and state government agencies combined. (403) Private landowners have converted the forest landscape from hardwood and old-growth pine to softwood timber, increasing pine plantation acreage from two million acres to thirty-two million acres in less than fifty years. (404) This conversion has further fragmented forest habitat, making preservation of large contiguous blocks of public lands all the more critical to the survival of many wide-ranging southern species.

V. CONCLUSION

At least one environmental organization believes that USFS's mandate to manage for biodiversity (405) makes NFMA a stronger protective statute than the ESA. (406) Certainly faithful monitoring of MIS and sensitive species and adjustment of management practices to maintain viable populations (407) would keep these rare species off the endangered species list. With respect to logging practices that have adverse cumulative effects, case law concerning MIS or sensitive species suggests that failure to disclose species presence or potential cumulative impacts on species habitat may render an EA/FONSI or an EIS invalid. (408) However, the case law has been less favorable for environmentalists alleging that agency approval of logging activities with adverse cumulative effects on MIS or sensitive species violates NFMA. (409) In any event, if the courts continue to ignore NEPA's procedural mandate that agencies must consider both federal and nonfederal activities when analyzing cumulative impacts, leaving the protection of many species up to NFMA may not be enough to ensure survival and recovery.

The NFP multi-scale, watershed approach provides one solution, albeit an imperfect one. The NFP has yet to live up to its promise of protecting riparian habitat and seems ill-equipped to deal with the cumulative impacts of nonfederal activities. However, NEPA and NFMA fall in those respects as well. By forcing agencies to evaluate impacts at different: scales, the NFP does lead to the detection of cumulative degradation that otherwise might escape NEPA or NFMA scrutiny. Indeed, because under the ESA the fate of many Pacific Northwest salmonids is now uncertain, (410) the NFP may provide the last safety net for these species by protecting their habitats from cumulative degradation occurring at project-site and watershed levels. Unfortunately for the northern spotted owl, this safety net may not have been enacted in time, for although the NFP has slowed the rate of habitat loss considerably, (411) all the species continues to decline. (412)

(1) Proposed Endangered Status for North and South Umpqua River Cutthroat Trout in Oregon, 59 Fed. Reg. 35,089, 35,090 (July 8, 1994) [hereinafter 1994 Proposed Endangered Status for UR Cutthroat Trout].

(2) Id.

(3) NAT'L MARINE FISHERIES SERV., ENDANGERED SPECIES ACT SECTION 7 CONFERENCE OPINION ON CONTINUED IMPLEMENTATION OF U.S. FOREST SERVICE LAND AND RESOURCE MANAGEMENT PLANS AND BUREAU OF LAND MANAGEMENT RESOURCE MANAGEMENT PLANS 1, 15 (March 18, 1997) [hereinafter PROGRAMMATIC BIOP].

(4) Final Rule, Endangered Status for Umpqua River Cutthroat Trout, 61 Fed. Reg. 41,514, 41,518 (Aug. 9, 1996) [hereinafter 1996 Final Endangered Status for UR Cutthroat Trout].

(5) Id. at 41,516.

(6) Id.; Final Rule, Threatened Status for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon, 63 Fed. Reg. 42,587, 42,587 (Aug. 10, 1998) [hereinafter 1998 Final Threatened Status for OC Coho Salmon].

(7) The Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). The statute requires federal agencies such as USFS and BLM to consult with the appropriate fish and wildlife agency to "insure that any action authorized, funded, or carried out by [USFS or BLM] ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined ... to be critical." Id. [section] 1536(a)(2). NMFS is the appropriate consulting agency with respect to anadromous fish. See 50 C.F.R. [section] 402.14 (2001) (formal consultation requirements).

(8) NMFS regulations define "jeopardize" as engaging in "an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and the recovery of a listed species...." 50 C.F.R. [section] 402.02 (2001).

(9) See 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4.

(10) See 1998 Final Threatened Status for OC Coho Salmon, supra note 6.

(11) U.S. Forest Serv. & Bureau of Land Mgmt., Record of Decision for Amendments to Forest Serv. and Bureau of Land Mgmt. Planning Documents within the Range of the Northern Spotted Owl (1994) [hereinafter NFP ROD]. The Northwest Forest Plan mandates an ecosystem approach to forest management that requires agencies to assess the impacts of federal activities on watershed health. Id. at 5. Consequently, both USFS and BLM adopted management plans that amended or otherwise addressed the watershed protection requirements of the Northwest Forest Plan. Id. at 11-12. In the 1997 Programmatic BiOp, NMFS found that the continued implementation of USFS Land and Resource Management Plans as well as BLM Resource Management Plans (10 plans total), as amended by the Northwest Forest Plan, would not jeopardize listed salmonids, including the UR cutthroat trout and OC coho salmon. See PROGRAMMATIC BIOP, supra note 3, at 42.

(12) NFP ROD, supranote 11, at B-9.

(13) As noted by the Ninth Circuit, a "watershed" covers 20 to 200 square miles but may be as great as 350 square miles when applied to the challenged timber sales, whereas a "project site" covers a few square miles. Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv. (PFCCA II), 265 F.3d 1028, 1035 (9th Cir. 2001).

(14) NMFS "determined that an action which would cause the habitat indicators of a watershed to move to a degraded condition or one which further degrades a `not properly functioning' watershed is also likely to jeopardize the continued existence of the listed species." NAT'L MARINE FISHERIES SERV. (NMFS) BIOLOGICAL OPINION RE: SECTION 7 CONSULTATION ON ACTIONS AFFECTING UMPQUA RIVER CUTTHROAT TROUT AND OREGON COAST COHO SALMON ISSUED TO ROSEBURG BLM DISTRICT MANAGER 1, 6 (Nov. 23, 1998) [hereinafter BLM BIOP1]; NMFS BIOLOGICAL OPINION RE: SECTION 7 CONSULTATION ON ACTIONS AFFECTING UMPQUA RIVER CUTTHROAT TROUT AND OREGON COAST COHO SALMON ISSUED TO ROSEBURG BLM DISTRICT MANAGER 1, 8 (Dec. 18, 1998) [hereinafter BLM BIOP2]; NMFS BIOLOGICAL OPINION RE: SECTION 7 CONSULTATION ON ACTIONS AFFECTING UMPQUA RIVER CUTTHROAT TROUT AND OREGON COAST COHO SALMON ISSUED TO UMPQUA NATIONAL FOREST SUPERVISOR 1, 6 (Nov. 25, 1998) [hereinafter USFS BIOP1]; NMFS BIOLOGICAL OPINION RE: SECTION 7 CONSULTATION ON ACTIONS AFFECTING UMPQUA RIVER CUTTHROAT TROUT AND OREGON COAST COHO SALMON ISSUED TO UMPQUA NATIONAL FOREST SUPERVISOR 1, 7 (Dec. 18, 1998) [hereinafter USFS BIOP2].

(15) 71 F. Supp. 2d 1063 (W.D. Wash. 1999).

(16) Id. at 1073 (citing section 7 of the Endangered Species Act, 16 U.S.C. [section] 1536(a)(2)(2000), which requires agencies to "use the best scientific and commercial data available" during the biological consultation process).

(17) Id. The district court noted that the Forest Ecosystem Management Assessment Team (FEMAT) guidelines specify that agencies should implement the ACS at the four spatial scales: regional, provincial (or river basin), watershed, and site (or project). Id. at 1069. See also FEMAT, Forest Ecosystem Management: An Ecological, Economic, and Social Assessment V-58 (1993) (noting that FEMAT is the scientific team that helped develop the ACS).

(18) Id. at 1070.

(19) Id. at 1073.

(20) Id.

(21) 265 F.3d 1028 (9th Cir. 2001), amending 253 F.3d 1137 (9th Cir. 2001), vacating in part and affirming in part 71 F. Supp. 2d 1063 (W.D. Wash. 1999).

(22) Id. at 1037.

(23) Id. at 1036 (stating that "[u]nless the effects of individual projects are aggregated to ensure that their cumulative effects are perceived and measured in future consultations, it is difficult to have any confidence in a wide regional no-jeopardy opinion"). NMFS regulations define "cumulative effects" as the effects of "future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation." 50 C.F.R. [section] 402.02 (2001). During a section 7(a)(2) consultation, NMFS must "evaluate the effects of the proposed action and cumulative effects on the listed species or critical habitat." Id. [section] 402.14(g)(3). NMFS also must consider whether the proposed federal action together with these cumulative effects is "likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat." Id. [section] 402.14(g)(4).

(24) Id.

(25) Id. at 1038. For an informative review of multi-scale analyses of timber sale effects in the context of the Northwest Forest Plan, see Lauren M. Rule, Enforcing Ecosystem Management under the Northwest Forest Plan: the Judicial Role, 12 FORDHAM ENVTL. L. J. 211 (Fall 2000). Ms. Rule's article takes a closer look at PCFFA I.

(26) Id. The Ninth Circuit stated that "it [was] unclear whether NMFS performed an analysis of the cumulative effect of small degradations over a whole watershed" and that nothing in the record showed that NMFS had in fact examined cumulative impacts at both scales. Id. The court then said that an "[a]ppropriate analysis of ACS compliance is undertaken at both the watershed and project levels." Id.

(27) Kim Murphy & Kenneth R. Weiss, Ruling Halts Some Loggers in Northwest Environment:

A Federal Court Orders Studies into Protecting Dwindling Salmon and Trout Stocks, Los ANGELES TIMES, June 1, 2001, at A1, A22 (noting: "[C]onservation groups called the [PCFFA II] ruling a significant step toward protecting endangered salmon and trout in the wild rivers of the Northwest from the silt-choked streams and elevated water temperatures that are some oflogging's deadliest effects."); David Kravets, Appeals Court Blocks Timber Sales, ASSOCIATED PRESS, June 1, 2001, at 1, available at 2001 WL 22107884 (quoting Patti Goldman of the Earthjustice Legal Defense Fund and chief litigator on behalf of the environmentalists: "This is a victory for salmon."); Craig Welch, Ruling Blocks Timber Sales; Court Says Salmon Impact Wasn't Considered, SEATTLE TIMES, June 1, 2001 at A1 (quoting Glen Spain, speaking on behalf of the Pacific Coast Federation of Fishermen's Associations, the lead plaintiff in PCFFA I and PCFFA II: "[PCFFA II is] a complete victory for science-based forestry."); id. (noting that "[e]nvironmentalists contend the ruling validates the Northwest Forest Plan").

(28) Murphy & Weiss, supra note 27.

(29) PCFFA II, 265 F.3d at 1038.

(30) Id.

(31) See infra Part II.A (discussing logging activities and NMFS consultations under the NFP).

(32) PROGRAMMATIC BIOP, supra note 3, at 40.

(33) Id. at 41.

(34) See Henry B. Lacey, New Approach or Business as Usual: Protection of Aquatic Ecosystems Under the Clinton Administration's Westside Forests Plan, 10 J. ENVTL. L. & LITIG. 309, 362-65, 373-74 (1995) (discussing failure of the ACS to address adverse effects of nonfederal activities and riparian reserve logging on aquatic ecosystems).

(35) National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370e (2000).

(36) Under section 102 of NEPA, agencies must prepare an EIS for any major federal action "significantly affecting the quality of the human environment." 42 U.S.C. [section] 4332(C). "Significantly" is defined both by the context and the intensity, including consideration of "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts." 40 C.F.R. [section] 1508.27(7) (2001).

(37) The Council of Environmental Quality (CEQ), 40 C.F.R. [subsection] 1500-1517 (2001). The CEQ regulations implement section 102(2) of NEPA, which forces federal agencies to act "according to the letter and spirit" of NEPA. See 40 C.F.R. [section] 1500.1(a) (2001) (explaining the purpose of NEPA); 42 U.S.C. [section] 4332(2) (setting out the objectives of NEPA).

(38) Cumulative Impact, 40 C.F.R. [section] 1508.7 (emphasis added).

(39) Id. (emphasis added).

(40) Section 102 of NEPA contains obligations imposed on federal agencies engaged in actions that may affect the human environment. Congressional declaration of national environmental policy, 42 U.S.C. [section] 4331 (2000). To fulfill these obligations, CEQ regulations require agencies to prepare an EA. Whether to prepare an environmental impact statement. 40 C.F.R. [section] 1501.4(b) (2001). The EA determines whether the agency may reach a finding of no significant impact (FONSI) on the environment or whether the agency should prepare the more comprehensive environmental impact statement. Id. [section] 1501.4(c)-(e).

(41) NEPA requires agencies to prepare an EIS for those major federal actions that significantly affect the quality of the human environment. Statutory requirements for statements, 40 C.F.R. [section] 1502.3 (2001).

(42) See Rule, supra note 25, at 249 (author stating that "[b]y determining that ecosystem management requires decision-making based on analysis of site-specific effects, this case sets a precedent for all agencies applying ecosystem management").

(43) V. Alaric Sample, Assessing Cumulative Environmental Impacts: The Case of National Forest Planning, 21 ENVTL. L. 839 (1991); Peter Hapke, Thomas v. Peterson: The Ninth Circuit Breathes New Life into CEQ's Cumulative and Connected Actions Regulations, 15 ENVTL. L. REP. 10,289 (1985).

(44) See 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,516 (defining "anadromous" species as those "that migrate[] from fresh water to the ocean, then return[] to fresh water as an adult to spawn," "resident" species as those "that remain[] within a relatively small freshwater range throughout [their] entire life cycle," and "potamodromous" species as those "that undertake[] freshwater migrations of varying length without entering the ocean").

(45) 1994 Proposed Endangered Status for UR Cutthroat Trout, supra note 1, at 35,090.

(46) 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4.

(47) Officials conducted counts at Winchester Dam, located at river mile 118 on the North Umpqua River. 1994 Proposed Endangered Status for UR Cutthroat Trout, supra note 1, at 35,089.

(48) Id.

(49) 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,516.

(50) Proposed Threatened Status for Three Contiguous ESUs of Coho Salmon Ranging from Oregon through Central California, 60 Fed. Reg. 38,011, 38,024 (July 25, 1995) [hereinafter 1995 Proposed Threatened Status for Three Coho Salmon ESUs]; Final Rule, Threatened Status for Southern Oregon/Northern California Coast Evolutionarily Significant Unit (ESU) of Coho Salmon, 62 Fed. Reg. 24,588, 24,592 (May 6, 1997) [hereinafter 1997 Final Threatened Status for Southern Oregon/Northern California Coast Coho Salmon].

(51) 1995 Proposed Threatened Status for Three Coho Salmon ESUs, supra note 50, at 38,021.

(52) Id.

(53) Id. (emphasis added).

(54) 1997 Final Threatened Status for Southern Oregon/Northern California Coast Coho Salmon, supra note 50, at 24,608.

(55) 1998 Final Threatened Status for OC Coho Salmon, supra note 6.

(56) Proposed Critical Habitat for the Oregon Coast Coho Salmon Evolutionarily Significant Unit, 64 Fed. Reg. 24,998, 25,001 (May 10, 1999) [hereinafter 1999 Proposed Critical Habitat for OC Coho Salmon].

(57) 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,519.

(58) Id.

(59) 1997 Final Threatened Status for Southern Oregon/Northern California Coast Coho Salmon, supra note 50, at 24,593.

(60) Id. at 24,592-3; 1999 Proposed Critical Habitat for OC Coho Salmon, supra note 56, at 25,001.

(61) 1997 Final Threatened Status for Southern Oregon/Northern California Coast Coho Salmon, supra note 50, at 24,592-3.

(62) Id.

(63) Id.

(64) Id.

(65) Id. at 24,592-3; 1999 Proposed Critical Habitat for OC Coho Salmon, supra note 56, at 25,001.

(66) 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,518.

(67) 1994 Proposed Endangered Status for UR Cutthroat Trout, supra note 1.

(68) 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,520.

(69) Pub. L. No. 104-19 (1995).

(70) The Federal Land Policy and Management Act of 1976 (FLPMA) requires BLM to develop and revise land use plans for all public land regions. 43 U.S.C. [section] 1712(a) (2000); 43 C.F.R. [section] 1601.0-1 (2001).

(71) The National Forest Management Act of 1976 (NFMA) requires USFS to develop and revise land and resource management plans for each management unit. 16 U.S.C. [section] 1604(a) (2000); 36 C.F.R. [section] 221.3(a) (2001).

(72) PROGRAMMATIC BIOP, supra note 3, at 1.

(73) NFP ROD, supra note 11, at B-9; PROGRAMMATIC BIOP, supra note 3, at 2.

(74) 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,518.

(75) 1995 Proposed Threatened Status for Three Coho Salmon ESUs, supra note 50. In May of 1997, NMFS determined that the OC coho salmon did not warrant listing. 1997 Final Threatened Status for Southern Oregon/Northern California Coast Coho Salmon, supra nora 50. However, in response to a 1998 district court decision, NMFS listed the OC coho as a threatened ESU. 1998 Final Threatened Status for OC Coho Salmon, supra note 6; Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d 1139 (D. Or. 1998).

(76) 1995 Proposed Threatened Status for Three Coho Salmon ESUs, supra note 50, at 41,520.

(77) "NFMS remains concerned about cumulative effects and their impacts on baseline environmental quality in the Umpqua River Basin." 1996 Final Endangered Status for UR Cutthroat Trout, supra note 4, at 41,520.

(78) Id.

(79) Although the consultation covered 10 forest plans, the Umpqua National Forest LRMP and the Roseburg District RMP are the plans covering the URB. PROGRAMMATIC BIOP, supra note 3, at 5-6; see also BiOps referenced, supra note 14.

(80) PROGRAMMATIC BIOP, supra note 3, at 1.

(81) Id. The ESA protects species, subspecies, and distinct population segments of "any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. [section] 1532(16) (2000). NMFS equates ESUs with distinct population segments. Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon, 56 Fed. Reg. 58,612 (Nov. 20, 1991). A salmonid ESU is stock that is substantially reproductively isolated from other nonspecific population units and that represents all important component in the evolutionary legacy of the species. Id Reproductive isolation does not have to be complete, but it must be "strong enough to permit evolutionarily important differences to accrue in different population segments." Id.

(82) PROGRAMMATIC BIOP, supra note 3, at 2-3.

(83) Id.; see also NMFS (HABITAT CONSERVATION BRANCH), MAKING ENDANGERED SPECIES ACT DETERMINATIONS OF EFFECT FOR INDIVIDUAL OR GROUPED ACTIONS AT THE WATERSHED SCALE 13 (1996) (outlining NMFS biological consultation protocol for anadromous salmonids).

(84) PROGRAMMATIC BIOP, supra note 3, at 3.

(85) Id.; see also 50 C.F.R. [section] 402.13(a) (2001) (stating that "[i]f during informal consultation it is determined by the Federal agency, with the written concurrence of the Service, that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary").

(86) PROGRAMMATIC BIOP, supra note 3, at 3; see also 50 C.F.R. [section] 402.14(g)-(h) (2001) (outlining the requirements of a formal biological opinion).

(87) PROGRAMMATIC BIOP, supra note 3, at 1-2.

(88) Id. at 38.

(89) Id. at 19.

(90) The NFP defines riparian reserves as "[l]ands along streams and unstable and potentially unstable areas where special standards and guidelines direct land use." NFP ROD, supra note 11, at B-12. ACS standards and guidelines "prohibit and regulate activities in Riparian Reserves that retard or prevent attainment of the [ACS] objectives." Id. Riparian reserves include "those portions of ... a watershed required for maintaining hydrologic, geomorphic, and ecological processes that directly affect standing and flowing waterbodies such as ... fish habitats." Id.

(91) PROGRAMMATIC BIOP, supra note 3, at 20. Scientists set riparian reserve buffer widths to "optimize the cumulative effectiveness of the relevant riparian functions" such as shading, woody debris input, and water quality. Id.

(92) Id. at 40-41.

(93) According to NMFS regulations, the environmental baseline "includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process." 50 C.F.R. [section] 402.02 (2001).

(94) PROGRAMMATIC BIOP, supra note 3, at 41-42.

(95) Id. at 15.

(96) Id. at 1.

(97) BIOLOGICAL OPINION RE: ESA SECTION 7 CONSULTATION ON TIMBER SAILS ON THE UMPQUA NATIONAL FOREST AND ROSEBURG BLM DISTRICT, UMPQUA RIVER BASIN ISSUED TO THE UMPQUA NATIONAL FOREST SUPERVISOR AND ROSEBURG BLM DISTRICT MANAGER (June 18, 1997) [hereinafter JUNE 1997 BIOP]; BIOLOGICAL OPINION RE: ESA SECTION 7 CONSULTATION ON FY97 TIMBER SALES ON THE UMPQUA NATIONAL FOREST AND ROSEBURG AND MEDFORD BLM DISTRICT, UMPQUA RIVER BASIN ISSUED TO THE UMPQUA NATIONAL FOREST SUPERVISOR, ROSEBURG BLM DISTRICT MANAGER, AND MEDFORD BLM DISTRICT MANAGER (July 22, 1997) [hereinafter JULY 1997 BIOP].

(98) JUNE 1997 BIOP, supra note 97, at 2.

(99) Id.

(100) ADDENDUM TO JUNE 18, 1997 BIOLOGICAL OPINION ON TIMBER SALES ON THE ROSEBURG BLM DISTRICT, UMPQUA RIVER BASIN ISSUED TO THE ROSEBURG BLM DISTRICT MANAGER (July 21, 1997).

(101) JULY 1997 BIOP, supra note 97, at 2-3.

(102) Id. at 3.

(103) JUNE 1997 BIOP, supra note 97, at 1; JULY 1997 BIOP, supra note 97, at 1.

(104) Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., No. C97-775R, 1998 WL 1988556 (W.D. Wash. May 29, 1998). In this suit, environmentalists also challenged a third biological opinion issued by NMFS in May 1997 concerning livestock grazing allotments in the UR Basin. Id.; BIOLOGICAL OPINION RE: ESA SECTION 7 CONSULTATION ON LIVESTOCK GRAZING ALLOTMENTS ON THE UMPQUA NATIONAL FOREST AND ROSEBURG BLM DISTRICT, UMPQUA RIVER BASIN ISSUED TO THE UMPQUA NATIONAL FOREST MANAGER AND ROSEBURG BLM DISTRICT MANAGER (May 22, 1997).

(105) Environmentalists had challenged the scale at which NMFS conducted its consultation, primarily because NMFS had not tailored the consultation to the UR cutthroat trout by focusing on impacts within the URB. Pac. Coast Fed'n of Fishermen's Ass'ns, Inc., 1998 WL 1988556, at *6. The court rejected this argument, noting that the purpose of the Programmatic BiOp was to analyze impacts across 10 administrative units. Id. at *7.

(106) Stipulated Order for Summary Judgment on Count VI of Third Amended Complaint and Payment of Attorneys Fees, Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., No. C97-775R, 1998 WL 1988556 (W.D. Wash. 1998).

(107) Pac. Coast Fed'n of Fishermen's Ass'ns, Inc., 1998 WL 1988556, at *11.

(108) Id. at *12.

(109) Id. at *12-13.

(110) See supra note 14 (listing the BiOps from the consultation).

(111) Id.

(112) BLM BIOP1, supra note 14, at 2-4; BLM BIOP2, supra note 14, at 2-5.

(113) Id.

(114) USFS BIOP1, supra note 14, at 2-3.

(115) BLM BIOP2, supra note 14, at 2-5; USFS BIOP2, supra note 14, at 3-4.

(116) USFS BIOP1, supra note 14, at 2-3.

(117) BLM BIOP1, supra note 14, at 1; BLM BIOP2, supra note 14, at 1; USFS BIOP1, supra note 14, at 1; USFS BIOP2, supra note 14, at 1.

(118) PCFFA I, 71 F. Supp. 2d 1063, 1072 (W.D. Wash. 1999).

(119) PCFFA II, 265 F. 3d 1028, 1036 (9th Cir. 2001).

(120) PCFFA I, 71 F. Supp. 2d at 1068-69.

(121) Id. at 1070.

(122) Id. at 1068.

(123) Id.

(124) Id. at 1069 (stating that "each project must also be consistent with ACS objectives ...").

(125) Id. at 1070 (stating that the "court agrees with plaintiffs that NMFS has failed to adequately assess the short term impacts of the timber sales ...").

(126) Id. at 1072-73 (rejecting NMFS's explanation for "allowing violations of ACS riparian reserve standards" because NMFS failed to demonstrate that the sales would have some "aquatic benefit").

(127) Id. at 1071 (stating that "NMFS did consider the effects of the activities on nonfederal lands in reaching its `no jeopardy' conclusion").

(128) Id. at 1073.

(129) PCFFA II, 265 F.3d 1028, 1031 (9th Cir. 2001).

(130) Id. at 1036.

(131) The anadromous UR cutthroat trout exhibits a five-year life cycle. Threatened Status for Southwestern Washington/Columbia River Coastal Cutthroat Trout in Washington and Oregon, and Delisting of Umpqua River Cutthroat in Oregon, 64 Fed. Reg. 16,397, 16,399 (April 5, 1999).

(132) The OC coho salmon exhibits a three-year life cycle. 1995 Proposed Threatened Status for Three Coho Salmon ESUs, supra note 50, at 38,012.

(133) PCFFA II, 265 F.3d at 1037.

(134) Id. at 1037.

(135) Id.

(136) Regional Interagency Executive Committee (comprised of the U.S.F.S., BLM, and other federal, state, and tribal agencies), Ecosystem Analysis at the Watershed Scale: Federal Guide for Watershed Analysis, 1, SH-12 (1995).

(137) PCFFA II, 265 F.3d at 1032-33. See also PROGRAMMATIC BIOP, supra note 3, at 15.

(138) PROGRAMMATIC BIOP, supra note 3, at 15.

(139) PCFFA II, 265 F.3d at 1036 (stating that "... it is difficult to have any confidence in a wide regional no-jeopardy opinion. Failure to account adequately for the cumulative effects of the various projects undermines the assumptions that the district court authorized NMFS to make in PCFFA I.").

(140) Id. at 1036.

(141) NFP ROD, supra note 11, at B-13.

(142) Id. at C-31.

(143) Riparian reserve widths are defined in the ACS for (1) fish-bearing streams, (2) permanently flowing non-fish-bearing streams, (3) constructed ponds and reservoirs and wetlands greater than 1 acre, (4) lakes and natural ponds, and (5) seasonally flowing or intermittent streams, wetlands less than 1 acres, and unstable and potentially unstable areas. Id. at B-14 and C-30, 31. Buffers around fish-bearing streams are the largest: "to the tops of the inner gorge, or to the outer edges of the 100-year floodplain, or to the our edges of riparian vegetation, or to a distance equal to the height of the two site-potential trees, or 300 feet slope distance (600 feet total, including both sides of the stream channel), whichever is greatest." Id. at C-30 (emphasis added).

(144) Id. at B-13 and C-31.

(145) Id. at C-31-32.

(146) Id. at C-32, 33.

(147) PCFFA I, 71 F. Supp. 2d 1063, 1072-73 (W.D. Wash. 1999).

(148) Id. at 1072.

(149) Id.

(150) Id. at 1073.

(151) PCFFA II, 265 F.3d 1028, 1038 (9th Cir. 2001).

(152) PCFFA I, 71 F. Supp. 2d at 1072.

(153) BLM BIOP2, supra note 14, at 11, 12.

(154) USFS BIOP 2, supra note 14, at 10.

(155) Id. at 12.

(156) Id. at 3.

(157) Id. at 13.

(158) PROGRAMMATIC BIOP, supra note 3, at 40.

(159) Id. at 41.

(160) Id. at 40-41.

(161) Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., No. C97-775R, 1998 WL 1988556, at *9 (W.D. Wash. 1998).

(162) PROGRAMMATIC BIOP, supra note 3, at 41.

(163) Id. (emphasis added).

(164) Id. at 42.

(165) Id.

(166) PCFFA I, 71 F. Supp. 2d 1063, 1070 (W.D. Wash. 1999)

(167) Id. at 1071.

(168) Id. (referring to Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l Marine Fisheries Serv., No. C97-775R, 1998 WL 1988556 (W.D. Wash. 1998)).

(169) PCFFA II, 265 F.3d 1028, 1038 (9th Cir. 2001).

(170) Supra notes 7-8 (referencing the substantive standards governing actions with potentially significant effects on listed species).

(171) Under NFMA, LRMPs must "provide for multiple use and sustained yield ... includ[ing] coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S.C. [section] 1604(e) (2000). LRMPs also must "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." Id. [section] 1604(g)(3)(B). NFMA regulations state that "[e]valuations of species diversity must include, as appropriate, assessments of the risks to species viability and the identification of ecological conditions needed to maintain species viability over time." 36 C.F.R. [section] 219.20(a)(2)(ii) (2001). The Forest Service uses "focal species" as "indicators" of ecological sustainability; the status and trend of a focal species provide "insights to the integrity of the larger ecological system to which it belongs." 36 C.F.R. [section] 219.36 (2001). Management Indicator Species (MIS) are those indicator species USFS selects for the purpose of monitoring the effects of forest plans on fish and wildlife populations. 16 U.S.C. [section] 1604(g). See also Sierra Club v. Martin, 168 F.3d 1, 7 (11th Cir. 1999) (stating that "MIS are proxies used to measure the effects of management strategies on Forest diversity"); Inland Empire Pub. Lands Council v. USFS, 88 F.3d 754, 762 n. 11 (9th Cir. 1996) (stating that an MIS serves as a "class representative, if you will--for the other species that have the same special habitat needs or population characteristics").

(172) "Sensitive species" are plant and animal species identified by a Regional Forester as species for which population viability is a concern either because of "significant current or predicted downward trends in population numbers or density" or habitat "capability" to support the species in its current distribution. FOREST SERVICE MANUAL (FSM), 2670.5(19) (2000). USFS uses sensitive species to help individual states "achieve[] their goals for conservation of endemic species." FSM, 2670.32(1). Agencies should "avoid or minimize impacts" to sensitive species. FSM, 2670.32(3). Furthermore, sensitive species "must receive special management emphasis to ensure their viability and to preclude trends toward endangerment that would result in the need for Federal listing. There must be no impacts to sensitive species without an analysis of the significance of adverse effects on the populations, its habitat, and on the viability of the species as a whole." FSM, 2672.1. The Ninth Circuit recognizes that the duty to ensure viable populations "applies with special force to sensitive species." Inland Empire Pub. Lands Council v. USFS, 88 F.3d at 759; Oregon Natural Resources Council v. Lowe, 836 F. Supp. 727, 733 (D. Or. 1993).

(173) 40 C.F.R. [section] 1508.7 (2001) (definition of cumulative impact).

(174) NFMA requires in part that each LRMP ensures that timber harvests will not "irreversibly damage[]" soil, slope, or watershed conditions or leave streams and streambanks unprotected from "detrimental changes in water temperatures, blockages of water courses, and deposits of sediment, where harvests are likely to seriously and adversely affect water conditions or fish habitat." 16 U.S.C. [section] 1604(g)(3)(E)(i), (iii) (2000). Also, the LRMP must ensure that clear-cutting is used only when it is the "optimum method" and when it will not be inconsistent with the "protection of soil, watershed, fish, wildlife ... and the regeneration of the timber resource." Id. [section] 1604(g)(3)(F)(i), (v).

(175) 843 F.2d 1190 (9th Cir. 1988).

(176) 137 F. 3d 1372 (9th Cir. 1998).

(177) 137 F.3d 1146 (9th Cir. 1998).

(178) 161 F.3d 1208 (9th Cir. 1998).

(179) Sierra Club I, 843 F.2d at 1192.

(180) Id. at 1192, 1194.

(181) Id. at 1194.

(182) Id.

(183) Id.

(184) Id.

(185) Id. (citing Found. for N. Am. Wild Sheep v. USDS, 681 F.2d 1172, 1179 (9th Cir. 1982)).

(186) Sierra Club I, 843 F.2d at 1195.

(187) Cuddy Mountain, 137 F.3d 1372, 1377-78 (9th Cir. 1998).

(188) Id. at 1379.

(189) Id.

(190) Id.

(191) Id. at 1382.

(191) Idaho Sporting, 137 F.3d 1146, 1149 (9th Cir. 1998).

(193) Id. at 1148.

(194) Id. at 1152.

(195) Id.

(196) Id. at 1152.

(197) Id. at 1154.

(198) Blue Mountains, 161 F.3d 1208 (9th Cir. 1998).

(199) Id. at 1210.

(200) Id.

(201) Id. at 1210-11.

(202) Id. at 1215.

(203) Id. at 1211.

(204) 183 F.3d 196 (3d Cir. 1999).

(205) Id. at 199.

(206) Id.

(207) Id. at 199 n.5.

(208) Id. at 200, 203.

(209) Id. at 207. See also Forest Service Decision Making & Administrative Appeals Reform Act, Pub. L. No. 102-381, 102 Stat. 1374, [section] 322 (1992) (Reform Act); Appeal Procedures For National Forest System Projects and Activities, 36 C.F.R. [section] 215.14 (2001) (requiring the plaintiffs to provide "sufficient written evidence and rationale to show why the [USFS] decision" is in error).

(210) 144 F. Supp. 2d 542 (W.D. Va. 2001).

(211) Id. at 545.

(212) Id. at 550.

(213) Id. at 548.

(214) Id. at 549.

(215) Id. at 550.

(216) See Reform Act, supra note 209 and accompanying text.

(217) Shenandoah I, 144 F. Supp. 2d at 557.

(218) 168 F.3d 1 (11th Cir. 1999).

(219) Id. at 7.

(220) Id. at 2.

(221) Id. at 7.

(222) For a complete list of USFS management indicator species at issue, see Sierra Club v. Martin, 992 F. Supp. 1448, 1473 (N.D. Ga. 1998) (Appendix A).

(223) Martin, 168 F.3d at 4.

(224) Id.

(225) Id. at 7.

(226) Id.

(227) 753 F.2d 754 (9th Cir. 1985).

(228) Id. at 754, 756.

(229) Id. at 757.

(230) Id. at 759.

(231) Id.

(232) Id.

(233) Id. at 757.

(234) Id. at 759.

(235) Id. at 763.

(236) "Connected actions" are those actions that "automatically trigger other actions which may require environmental impact statements," that "cannot or will not proceed unless other actions are taken previously or simultaneously," and that "are interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. [section] 1508.25(a)(1) (2001).

(237) Thomas, 753 F.2d at 758-59.

(238) Id. at 761.

(239) 840 F.2d 714 (9th Cir. 1988).

(240) Id. at 717.

(241) The citizen suit provision of the ESA requires sixty days written notice of a violation to the Secretary of the Interior or Commerce. 16 U.S.C. [section] 1540(g)(2)(A)(i) (2000). In this case, the appellants had given only 38 days notice before filing their complaint. Save the Yaak, 840 F.2d at 721.

(242) Save the Yaak, 840 F.2d at 722.

(243) Id. at 717-18.

(244) 132 F.3d 7 (2d Cir. 1997).

(245) Id. at 11.

(246) Id. at 17.

(247) Id.

(248) 185 F.3d 349 (5th Cir. 1999).

(249) Id.; see also Northwoods Wilderness Recovery, Inc. v. USFS, No. 2:00-CV-15, 2001 U.S. Dist. LEXIS 15973, at *14-*18 (W.D. Mich. 2001) (rejecting environmentalists' claim that USFS failed to examine cumulative effects of past and proposed logging on sensitive species in the Ottawa National Forest).

(250) Sierra Club v. Glickman, 974 F. Supp. 905 (E.D. Tex. 1997). The district court noted the decade-long saga of litigation concerning the east Texas USFS LRMPs. Id. at 912 n.1; see also Sierra Club v. Glickman, 67 F.3d 90, 92-93 (5th Cir. 1995) (red-cockaded woodpecker); Sierra Club v. Espy, 38 F.3d 792 (5th Cir. 1994) (even-aged logging); Sierra Club v. Lyng, 694 F. Supp. 1260, 1263-64, 1273-75 (E.D. Tex. 1988) (southern pine beetle), aff'd in part and vacated in part sub. nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) (red-cockaded woodpecker).

(251) Peterson I, 185 F.3d at 374 (citing Sierra Club v. Glickman, 974 F. Supp. at 911).

(252) Id.

(253) Sierra Club v. Peterson (Peterson II), 228 F.3d 559, 566 (5th Cir. 2000) (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 891 (1999)).

(254) Id. at 563.

(255) Id.

(256) Id. at 570.

(257) 88 F.3d 754 (9th Cir. 1996)

(258) Id.

(259) The sensitive species at issue were the lynx, boreal owl, black-backed woodpecker, flamulated owl, fisher, bull charr, and wet-sloped cutthroat trout. Id. at 757.

(260) Id. at 763.

(261) Id. at 764; see also Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1312 (W.D. Wash. 1994) (stating that "to plan based on different geographic boundaries for every species in the same ecosystem would be impractical").

(262) Inland Empire I, 88 F.3d at 764 (citing Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976)).

(263) 35 F.3d 1300 (9th Cir. 1993).

(264) 148 F. Supp. 2d 1107 (E.D. Wash. 2001).

(265) Resources Limited, 35 F.3d at 1305.

(266) Id. at 1306. See also Seattle Audubon Soc'y v. Lyons, 871 F. Supp. 1291, 1323 (W.D. Wash. 1994) (relying on Resources Limited to state that "[w]here a programmatic EIS is being considered, a court will not require consideration of nonfederal cumulative impacts in the EIS if the agency will analyze such impacts before specific projects are undertaken").

(267) Kettle Range, 148 F. Supp. 2d at 1112.

(268) Id. at 1131.

(269) Id. at 1112.

(270) Id. at 1128.

(271) Id.

(272) Kettle Range, 148 F. Supp. 2d at 1132.

(273) Id. at 1130.

(274) Id. at 1132.

(275) Id. at 1140.

(276) 992 F.2d 977 (9th Cir. 1993).

(277) Id. at 979.

(278) Id. at 981.

(279) Id.

(280) Id.

(281) Id. at 982.

(282) 46 F.3d 835 (8th Cir. 1995).

(283) Id.

(284) Id. at 839.

(285) Id. at 838-39.

(286) Id. at 839 (citing Resources Limited v. Robertson, 35 F.3d 1300, 1306 (9th Cir. 1993)).

(287) Id.

(288) 116 F.3d 1482, 1997 WL 295308 (7th Cir. 1997).

(289) 2001 U.S. Dist. LEXIS 11996 (S.D. Ind. 2001).

(290) Sierra Club v. USDA, 1997 WL 295308, at *9.

(291) Id. at *7.

(292) Id. at *9.

(293) Id.

(294) Id. at *11.

(295) Sierra Club v. USDA, 1997 WL 295308, at *11.

(296) Id. at *11-12.

(297) Id. at *20.

(298) Indiana Forest, 2001 U.S. Dist. LEXIS 11996, 32 (S.D. Ind. 2001).

(299) Id.

(300) Id. at *39.

(301) Id. at *3.

(302) Id. at *40.

(303) See discussion supra Part I.A.

(304) 24 F. Supp. 2d 585 (W.D. Va. 1998).

(305) Id. at 589.

(306) The two sales combined involved harvests of 420 acres of timber over 21,024 acres. Id. at 588. Later in the opinion, the district court compared the magnitude of these sales to the sales at issue in National Audubon Society v. Hoffman, 917 F. Supp. 280 (D. Vt. 1995), which involved 300 acres of clear-cutting with impacts across 1300 acres. Shenandoah II, 24 F. Supp. 2d at 590.

(307) Id. at 591.

(308) Id. at 589.

(309) Id. at 590.

(310) Id. (emphasis added).

(311) Id. The plaintiffs appealed the decision but primarily focused on the cumulative impacts of all three sales on the visual and recreational values of the Appalachian Trail and the Blue Ridge Parkway rather than on impacts on protected species. See Shenandoah Ecosystems Defense Group v. USFS, 194 F.3d 1305, 1999 WL 760226, at *1, *3 (4th Cir. 1999). In that unpublished opinion, the Fourth Circuit affirmed the district court, noting first that USFS "considered in detail" the "aggregate impact" of past and future harvests on visual resources and then deciding that USFS sufficiently analyzed cumulative impacts in each EA. Id. at *4 and *4 n.2.

(312) 1998 U.S. Dist. LEXIS 16814 (W.D.N.C. Sept. 10, 1998).

(313) Id. at *19-*25.

(314) Id. at *8.

(315) Id. at *14 ("The cumulative impact of the project was considered in view of past timber removal operations, which were noted to have failed to implement erosion control measures."); Id. at *18 ("[p]ast actions have resulted in many sources of sedimentation into Snowbird Creek").

(316) Id. at *19-*20.

(317) Id. at *30.

(318) Id. at *13 (biologist noting that "erosion control procedures and temporary stream crossings could be implemented into the project" to manage sedimentation loading); Id. at *18 (biologist stating that the "efficacy of erosion control measures used in this project and the condition of the [road] and the dispersed campsites at that time will influence the effects analysis on Junaluska salamander habitat"); Id. at *19 (hydrologist concluding that project implementation would not have adverse effects if "specified measures were maintained throughout the salvage operation"). The environmentalists had claimed that the campsite restoration was a post-hoc proposal designed to "wash" the effects of the proposed salvage operation. Id. at *37.

(319) Id. at *31-*33.

(320) PCFFA II, 265 F.3d 1028 (9th Cir. 2001); Blue Mountains, 161 F.3d 1208 (9th Cir. 1998); Save the Yaak, 840 F.2d 714 (9th Cir. 1988); Thomas, 753 F.2d 754 (9th Cir. 1985); Kettle Range, 148 F. Supp. 2d 1107 (E.D. Wash. 2001). But see Resources Limited, 35 F.3d 1300, 1306 (9th Cir. 1993) (holding that the LRMP need not consider cumulative impacts of nonfederal activities on grizzly bear habitat as Long as cumulative impacts resulting from nonfederal activities were considered before authorizing specific sales).

(321) Kleissler, 183 F.3d 196 (3d Cir. 1999); Shenandoah I, 144 F. Supp. 2d 542 (W.D. Va. 2001).

(322) Peterson II, 228 F.3d 559 (5th Cir. 2000).

(323) Martin, 168 F.3d 1, 7 (11th Cir. 1999).

(324) National Audubon, 132 F.3d 7, 19 (2d Cir. 1997).

(325) Blue Mountains, 161 F.3d at 1213 (failure to consider potentially adverse cumulative impacts of multiple salvage sales on spawning populations of summer steelhead and wild spring chinook salmon rendered EA/FONSI erroneous); Idaho Sporting, 137 F.3d 1146, 1152 (9th Cir. 1998) (failure to disclose potential presence brook trout, an MIS, in the action area rendered EA/FONSI erroneous); Sierra Club I, 843 F.2d 1190, 1195 (9th Cir. 1988) (failure to consider potentially adverse cumulative impacts of roadbuilding and logging on trout production rendered EA/FONSI erroneous); Thomas, 753 F.2d at 761 (failure to consider potentially adverse cumulative impacts of roadbuilding and logging on salmon and steelhead trout rendered the EA/FONSI erroneous). But see Inland Empire II, 992 F.2d 977, 981 (9th Cir. 1993) (supplemental EA/FONSI upheld in spite of evidence that significant cumulative effects may arise from long-term/large-scale logging practices within a single watershed).

(326) Shenandoah II, 24 F. Supp. 2d 585, 590 (W.D. Va. 1998) (although the agency separately analyzed cumulative impacts of clear-cutting on the Peaks of the Otter salamander for each of two projects without acknowledging the impacts of the other project, the EA was upheld); Appalachian Voices, No. 1: 98CV156, 1998 U.S. Dist. LEXIS 16814, *31-*33 (W.D.N.C. Sept. 10, 1998) (although the agency failed to analyze the cumulative effects on the Junaluska salamander of sedimentation because of past logging, roadbuilding, and campsite construction in its analysis of proposed salvage sales, a promise of future mitigation rendered the EA/FONSI valid). But see Martin, 168 F.3d at 7 (agency's reliance on cumulative impacts analysis for several MIS species in the absence of population data violated NFMA).

(327) But see supra note 174 (discussing NFMA's general standards regarding riparian areas).

(328) PCFFA II, 265 F.3d 1038 (9th Cir. 2001) (finding no reason to question NMFS's opinions concerning the riparian reserve sales); PCFFA I, 71 F. Supp. 2d 1072 (W.D. Wash. 1999) (finding no rational basis for NMFS's conclusion that timber sales within the riparian reserve would not violate ACS standards); Shenandoah II, 24 F. Supp. 2d at 589-590 (upholding multiple sales in watershed containing habitat for a sensitive salamander species); Appalachian Voices, 1998 U.S. Dist. LEXIS 16814, at *31-32 (upholding salvage operation near creek containing habitat for a sensitive salamander species).

(329) Peterson I, 185 F.3d 349 (5th Cir. 1999) (red-cockaded woodpecker); Peterson II, 228 F.3d 559 (5th Cir. 2000) (red-cockaded woodpecker); Martin, 168 F.3d 1 (red-cockaded woodpecker); Cuddy Mountain, 137 F.3d 1372 (9th Cir. 1998) (pileated woodpecker); Inland Empire I, 88 F.3d 754 (9th Cir. 1996) (black-backed woodpecker); Sierra Club II, 46 F.3d 835 (8th Cir. 1995) (three-toed woodpecker).

(330) Sierra Club II, 46 F.3d 835; Northwoods, No. 2:00-CV-152001 U.S. Dist. LEXIS 15973 (W.D. Mich. Sept. 26, 2001).

(331) Thomas, 753 F.2d 754 (9th Cir. 1985); Kettle Range, 148 F. Supp. 2d 1107 (E.D. Wash. 2001).

(332) Inland Empire I, 88 F.3d 754; Kettle Range, 148 F. Supp. 2d 1107; Northwoods, 2001 U.S. Dist. LEXIS 15973.

(333) National Audubon, 132 F.3d 7 (2d Cir. 1997) (black bear); Resources Limited, 35 F.3d 1300 (9th Cir. 1993) (grizzly bear); Save the Yaak, 840 F.2d 714 (9th Cir. 1988) (grizzly bear); Shenandoah I, 144 F. Supp. 2d 542 (W.D. Va. 2001) (black bear); Kettle Range, 148 F. Supp. 2d. 1107 (E.D. Wash. 1994) (grizzly bear).

(334) Thomas, 753 F.2d at 761 (agency's failure to consider cumulative impacts of roadbuilding and timber sales on the endangered Rocky Mountain gray wolf and its critical habitat rendered the EA/FONSI invalid); Save the Yaak, 840 F.2d at 721 (agency's failure to explain adequately the potential cumulative impacts of road extension on grizzly bear populations and caribou habitat rendered the EA/FONSI inadequate).

(335) Martin, 168 F.3d 1, 7 (11th Cir. 1999) (agency could not rely on cumulative impacts analysis for several MIS species without population data); Idaho Sporting, 137 F.3d 1146, 1152 (9th Cir. 1998) (failure to disclose presence of brook trout (an MIS) in the action area, rendered the EA/FONSI invalid); Northwoods, 2001 U.S. Dist. LEXIS 15973, at *20 n.12, *26-*27, *28, *32 (The EA/FONSI was valid in spite of the agency's failure to identify the northern goshawk as an MIS, to disclose the presence of the MIS American bittern, to monitor declining populations of red-shouldered hawk, and to conduct more than a cursory survey for the threatened Canada lynx. USFS reasonably could conclude that the cumulative effects of past and proposed logging on those species were insignificant.).

(336) Sierra Club II, 46 F.3d 835, at 840 (8th Cir. 1995) (agency reasonably could assume private land use would follow status quo, thus not contributing to significant cumulative impacts on ruby-crowned kinglet, goshawk, and three-toed woodpecker); Resources Limited, 35 F.3d at 1306 (9th Cir. 1993) (while the agency need not address cumulative impacts of nonfederal activities on grizzly bear habitat in the programmatic EIS, the court does expect USFS to analyze cumulative impacts before authorizing specific sales).

(337) Kleissler, 183 F.3d 196 (3d Cir. 1999); Shenandoah I, 144 F. Supp. 2d 542 (W.D. Va. 2001).

(338) Appalachian Voices, 1998 U.S. Dist. LEXIS 16184 (W.D.N.C. Sept. 10, 1998); Sierra Club v. USDA, No. 96-2244, 1997 WL 295308 (7th Cir. May 28, 1997).

(339) Indiana Forest, No. NA 99-214-C H/G, 2001 U.S. Dist. LEXIS 11996 (S.D. Ind. July 15, 2001).

(340) Kleissler, 183 F.3d 196; Shenandoah I, 144 F. Supp. 2d 542; Curry v. USFS, 988 F. Supp. 541 (W.D. Penn. 1997).

(341) PCFFA II, 265 F.3d 1028, 1036 (9th Cir. 2001) (appropriate scale of analysis is "undertaken at both the watershed and project levels"); Inland Empire I, 88 F.3d 754, 764 (9th Cir. 1996)(agency was obliged only to consider cumulative effects within project's boundaries); Sierra Club II, 46 F.3d at 839 (agency must consider significant cumulative effects arising from private land-use adjacent to federal project site, although failure to do so was of "little consequence"); PCFFA I, 71 F. Supp. 2d 1072, 1073 (W.D. Wash. 1999) (no-jeopardy finding was erroneous because it ignored site-level habitat degradation); Shenandoah I, 144 F. Supp. 2d at 590 (analysis of effects varied temporally and spatially for each "subject").

(342) PCFFA I, 71 F. Supp. 2d at 1071 (in spite of checkerboard pattern of federal ,and nonfederal land in the UC cutthroat trout range, because NMFS had considered nonfederal activities in its Programmatic BiOp, the agency was excused from considering nonfederal activities in the project BiOps); PCFFA II, 265 F.3d at 1038 (the issue of nonfederal activities was "disposed of" in previous litigation over the Programmatic BiOp); Inland Empire II, 992 F.2d at 981 (9th Cir. 1993) (although cumulative impacts due to past logging on private lands exceed "threshold of concern," EA/FONSI was valid); Sierra Club v. USDA, 1997 WL 295308, at *9 (7th Cir. 1997) (agency could reasonably conclude that benefits of activities on nonfederal lands for openland species outweigh detrimental cumulative impacts on sensitive forest interior species); Indiana Forest 2001 U.S. Dist. LEXIS 11996, at *3, *40 (in spite of checkerboard pattern of private and federal lands, agency is excused from including forest practices on private lands in its cumulative impacts analysis).

(343) Indiana Forest 2001 U.S. Dist. LEXIS 11996, at *40 (rejecting the plaintiffs "unarticulated speculation" concerning forest practices on adjacent private land).

(344) PCFFA I, 71 F. Supp. 2d at 1071; PCFFA 17, 265 F.3d at 1038; Sierra Club II, 46 F.3d at 839 (agency "reasonably assumed" that private land use would follow status quo).

(345) Resources Limited, 35 F.3d 1300, 1306 (9th Cir. 1993) (nonfederal cumulative impacts should be analyzed before specific sales are approved).

(346) Frances C. James, Charles A. Hess, Bart C. Kicklighter & Ryan A. Thum, Ecosystem Management and the Niche Gestalt of the Red-cockaded Woodpecker in Longleaf Pine Forests, 11 ECOLOGICAL APPLICATIONS 854 (2001).

(347) A.C. Echternacht & L.D. Harris, The Fauna and Wildlife of the Southeastern United States, in BIODIVERSITY OF THE SOUTHEASTERN UNITED STATES: LOWLAND TERRESTRIAL COMMUNITIES 104 (W.H. Martin, et al. eds., 1993).

(348) DAVID N. WEAR & JOHN G. GREIS, U.S. FOREST SERV., SOUTHERN FOREST RESOURCE ASSESSMENT DRAFT REPORT, CH. TERRA-5, at 15 (2001) [hereinafter SOUTHERN FOREST RESOURCE ASSESSMENT].

(349) JAMES W. PETRANKA, SALAMANDERS OF THE UNITED STATES AND CANADA 253 (1998).

(350) Id. at 364.

(351) SOUTHERN FOREST RESOURCE ASSESSMENT, supra note 348, CH. AQUA-5, at [section] 4.2.17. For more information on the effects of timber harvesting on southeastern salamanders, see James W. Petranka, Matthew E. Eldridge, & Katherina E. Haley, Effects of Timber Harvesting on Southern Appalachian Salamanders, 7 CONS. BIOL. 363 (1993); Andrew N. Ash, Disappearance and Return of Plethodontid Salamanders to Clear-cut Plots in the Southern Blue Ridge Mountains, 11 CONS. BIOL. 983 (1997); James W. Petranka, Recovery of Salamanders after Clear-cutting in the Southern Appalachians: A Critique of Ash's Estimates, 13 CONS. BIOL. 203 (1999).

(352) The sensitive species are Webster's salamander (Plethodon websteri), cow knob salamander (P. punctatus), Peaks of Otter salamander (P. hubrichti), thunder ridge salamander (P. nettingi hubrichti), Weller's salamander (P. welleri), Yonahlossee salamander (P. yonahlossee), southern red-backed salamander (P. serratus), Caddo Momltain salamander (P. caddoensis), Fourch Mountain salamander (P. fourchensis), and Rich Mountain salamander (P. ouachitae). REGIONAL FORESTER'S SENSITIVE PLANT AND ANIMAL SPECIES--REGION 8. FMS 2670.44.

(353) NatureServe Explorer: An online encyclopedia of life, Version 1.6 (2001), at http://www.natureserve.org/explorer (last visited on Mar. 19, 2002) [hereinafter Natureserve].

(354) Petranka, supra note 349, at 364.

(355) Natureserve, supra note 353.

(356) The Junaluska salamander and the Peaks of Otter salamander were listed as "category 2" candidate species by FWS in 1982, 1991, and 1994. Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species, 47 Fed. Reg. 58,454-01 (Dec. 30, 1982); Animal Candidate Review for Listing as Endangered or Threatened Species, 56 Fed, Reg. 58,804-01 (Nov. 21, 1991); Animal Candidate Review for Listing as Endangered or Threatened Species, 59 Fed. Reg. 58,982-01 (Nov. 15, 1994). Category 2 species are those species for which an endangered or threatened listing may be appropriate, but for which the data on species vulnerability or potential threats are insufficient to support a proposed rule. Id. In 1996, FWS discontinued category 2 candidate species listings. Notice of Final Decision on Identification of Candidates for Listing as Endangered or Threatened, 61 Fed. Reg. 64,481 (Dec. 5, 1996).

(357) 12-month Finding for a Petition to List the Junaluska Salamander as Endangered with Critical Habitat, 64 Fed. Reg. 41,060 (July 29, 1999) [hereinafter Finding Petition to List Junaluska Salamander Unwarranted].

(358) HARRY E. LEGRAND JR. & STEPHEN P. HALL, NATURAL HERITAGE PROGRAM LIST OF THE RARE ANIMAL SPECIES OF NORTH CAROLINA 5, 23 (N.C. Nat. Heritage Prog. 1999), available at http://ils.unc.edu/parkproject/nhp/publications/animals/1999animallist. pdf (last visited Mar. 19, 2002) (referring to the Junaluska salamander as a "(Federal) Species of Concern"); Virginia Fish and Wildlife Information Service, Status for (020039) Salamander, Peaks of Otter Plethodon hubrichti, available at http://vafwis.org/BOVA/BOOKS/020039.HTM#STATUS (last visited on Mar. 19, 2002) (referring to the Peaks of Otter salamander as a "Federal Species of Concern").

(359) Natureserve, supra note 353.

(360) Virginia Fish and Wildlife Information Service, supra note 358, at http://vafwis.org/BOVA/BOOKS/020039.HTM# STATUS. See also REGIONAL FORESTER'S SENSITIVE PLANT AND ANIMAL SPECIES--REGION 8, supra note 352, at 2670.44 (listing the Peaks of Otter salamander as a sensitive species).

(361) LEGRAND & HALL, supra note 358, at 323.

(362) TENNESSEE WILDLIFE RESOURCE AGENCY, SPECIES IN NEED OF MANAGEMENT, available at http://www.state.tn.us/twra/non002.html (last visited Mar. 19, 2002).

(363) Natureserve, supra note 353 (referring to a 1998 personal communication with Richard Bruce).

(364) Finding Petition to List Junaluska Salamander Unwarranted, supra note 357, at 41,060.

(365) Natureserve, supra note 353.

(366) Finding Petition to List Junaluska Salamander Unwarranted, supra note 357, at 41,061.

(367) Natureserve, supra note 353.

(368) Id.; PETRANKA, supra note 349, at 365. The species has an extremely low dispersal rate with an average home range of 0.6 square meters. Id. at 364-65. For more information concerning the effects of clear-cutting on the salamander, see also Peter Kramer, Norman Reichenbach, Michael Hayslett, & Paul Sattler, Population Dynamics and Conservation of the Peaks of Otter Salamander, Plethodon hubrichti, 27 J. HERPETOLOGY 431 (1993); Peter Sattler & Norman Reichenbach, The Effects of Timbering on Plethodon hubrichti: Short-term Effects, 32 J. HERPETOLOGY 399 (1998).

(369) Virginia Fish and Wildlife Information Service, supra note 358, at http://vafwis.org/BOVA/BOOKS/020039.HTM #MANAGE.

(370) SOUTHERN FOREST RESOURCE ASSESSMENT, supra note, 348, at CH. TERRA-l, at [section] 4.5.1.

(371) Appendix D-United States List of Endangered Native Fish and Wildlife; 35 Fed. Reg. 16,047, 16,048 (Oct. 13, 1970).

(372) Natureserve, supra note 353.

(373) For example, in 1989 Hurricane Hugo destroyed half of a mature forest in South Carolina, reducing the woodpecker population by 63% to 700 individuals. Id.

(374) Id.

(375) U.S. FISH & WILDLIFE SERV., HISTORY OF SOUTHERN PINE ECOSYSTEMS, at http://rcwrecovery.fws.gov/ecosystem.htm (last visited Nov. 26, 2001).

(376) Id.

(377) Id.

(378) Id.

(379) James et al., supra note 346.

(380) Id. U.S. FISH & WILDLIFE SERV., S. FLORIDA MULTI-SPECIES RECOVERY PLAN (1999) (recovery plan for 68 species, including the red-cockaded woodpecker).

(381) James et al. supra note 346.

(382) Natureserve, supra note 353.

(383) Id. The Florida Ornithological Society is opposed to this proposed status change. Id.

(384) Endangered Species List 1967, 32 Fed. Reg. 4001 (Mar. 11, 1967). The Indiana bat was listed under the Endangered Species Preservation Act of 1973, which predates the Endangered Species Act of 1976. 16 U.S.C. [section] 668aa(c) (2000).

(385) At that time, FWS designated 11 caves and 2 mines in the states of Illinois, Indiana, Kentucky, Missouri, Tennessee, and West Virginia as critical habitat for the Indiana bat. Determination of Critical Habitat for American crocodile, California condor, Indiana bat, and Florida manatee, 41 Fed. Reg. 41,914 (Sept. 24, 1976).

(386) U.S. FISH & WILDLIFE SERV., RECOVERY PLAN FOR THE INDIANA BAT (1983).

(387) U.S. FISH & WILDLIFE SERV., INDIANA BAT RECOVERY TEAM, AGENCY DRAFT, INDIANA BAT (MYOTIS SODALIS) REVISED RECOVERY PLAN 1 (March 1999) [hereinafter REVISED BAT RECOVERY PLAN].

(388) Id. at 6 tbl. 1.

(389) Id. at iv.

(390) Id. at 4.

(391) Id. at 9.

(392) Trees associated: with Indiana bat foraging areas include sycamore, cottonwood, black walnut, black willow, and oak. Id. at 12.

(393) REVISED BAT RECOVERY PLAN, supra note 387, at 12.

(394) Id. at 13, 15.

(395) Id. at 11.

(396) SOUTHERN FOREST RESOURCE ASSESSMENT, supra note 348.

(397) Id., CH. TERRA-1, at 34.

(398) Id., CH TERRA-5, at; 9-10, 12-14.

(399) Id.

(400) Id. at 46.

(401) SOUTHERN FOREST RESOURCE ASSESSMENT, supra note 348, at 38.

(402) Id. at 46.

(403) Id.

(404) Id. at 87.

(405) NFMA requires LRMPs to "provide for diversity of plant and animal communities." 16 U.S.C. [section] 1604(g)(3)(B) (2001).

(406) Rodger O. Schlickeisen (President, Defenders of Wildlife), Forward to David John Zaber, Southern Lessons: Saving Species through the National Forest Management Act (1998), available at http://www.defenders.org/pubs/sfor01.html.

(407) NFMA regulations state that "[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 36 C.F.R. [section] 219.19 (1999) (emphasis added). A "viable population" is one "which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area." Id.

(408) Cuddy Mountain, 137 F.3d 1372, 1379 (9th Cir. 1998) (agency's failure to explain whether sales would "cumulatively impact" and reduce MIS pileated woodpecker's home range rendered SEIS invalid); Idaho Sporting, 137 F.3d 1146, 1152 (9th Cir. 1998) (agency's failure to disclose presence of MIS brook trout rendered EA/FONSI invalid); National Audubon, 132 F.3d 7, 17 (2d Cir. 1997) (agency's failure to demonstrate that proposed mitigation would reduce cumulative impacts of proposed activities on black bear habitat rendered EA/FONSI invalid); Sierra Club v. USDA, No. 96-2244, at 1997 WL 295308, at *11 (7th Cir. May 28, 1997) (agency's failure to consider cumulative impacts of logging and non-logging federal activities on sensitive species rendered EIS invalid, while agency's failure to consider cumulative impacts of nonfederal activities was not a NEPA violation). But see Sierra Club II, 46 F.3d 835, 839 (8th Cir. 1995) (ignoring cumulative impacts of private land activities on sensitive species was an "error of little consequence"); Shenandoah II, 24 F. Supp. 2d 585, 590 (W.D. Va. 1998) (upholding agency's separate cumulative impacts analyses for three timber sales in sensitive species habitat); Northwoods, No. 2:00-CV-15, 2001 U.S. Dist. LEXIS 15973, at *20 n. 12, *26-*27, *28, *32 (W.D. Mich. Sept. 26, 2001) (EA/FONSI was valid in spite of the agency's failure to identify a species as an MIS, disclose the presence of another MIS, monitor declining populations of a third MIS, and conduct more than a cursory survey for a threatened species); Indiana Forest No. NA 99-214-c H/G, 2001 U.S. Dist. LEXIS 11996, at *40 (S.D. Ind. July 15, 2001) (because the plaintiffs failed to articulate specifically how future activities on private lands would cumulatively impact sensitive species, the court upheld the EIS); Appalachian Voices, No. 1:98CV156, 1998 U.S. Dist. LEXIS 16814, at *31-*33 (W.D.N.C. Sept. 10, 1998) (agency's promise to mitigate cumulative effects of sedimentation in sensitive species habitat satisfied NEPA). Fortunately for environmentalists, much of this negative case history is in the form of unpublished opinions.

(409) Peterson II, 228 F.3d 559, 563-70 (5th Cir. 2000) (characterizing environmentalists' claim to enjoin even-aged logging as a request for "broad injunctive relief" and not a "final agency action" subject to review, the Fifth Circuit vacated its earlier decision in Peterson I); Martin, 168 F.3d 1, 7 (11th Cir. 1999) (agency's reliance on cumulative impacts analysis for several MIS species in the absence of population data violated NFMA); Peterson I, 185 F.3d 349, 374 (5th Cir. 1999) (agency's proposal for even-aged logging before collecting inventory data on MIS red-cockaded woodpecker violated NFMA).

(410) AS a result of a recent district court decision, NMFS is reviewing the ESU status for the OC coho salmon as well as thirteen other Pacific ESUs. Alsea Valley Alliance v. Evans (Alsea Valley), 161 F. Supp. 2d 1154 (D. Or. 2001); Findings on Petitions to Delist Pacific Salmonid ESUs, 67 Fed. Reg. 6215 (Feb. 11, 2002). In Alsea Valley, the district court lifted ESU protection for the OC coho salmon. 161 F. Supp. 2d at 1163-64. The Ninth Circuit granted environmentalist-interveners an emergency motion to stay the district court decision, leaving the ESU listing in place. Alsea Valley Alliance v. Evans, Civ. No. 01-36071 (9th Cir. Dec. 14, 2001). Meanwhile, the Bush Administration has proposed a consent decree, agreeing to lift critical habitat designations for nineteen ESUs. Administration Seeks to Maintain Essential Fish Habitat While Proposing to Withdraw and Revisit its Critical Habitat Designations, U.S. Dept. of Commerce News (Mar. 11, 2002), available at http://www.nwr.noaa.gov/lpress/031102.pdf.

(411) According to press reports, loss of spotted owl habitat since the adoption of the NFP has been less than 1% of the 7.4 million acres covered by the plan. The plan had projected a 2.5% habitat loss. Michael Milstein, Federal Forests in Line to See More Logging, OREGONIAN, Jan. 16, 2002, available at 2002 WL 3942695; Robert McClure, Owl's Status Aids Timber Sales; `It Doesn't Mean We're Going to Open the Floodgates,' but More Logging Likely Now, SEATTLE POST-INTELLIGENCER, Jan. 18, 2002, available at 2002 WL 5926586.

(412) A recent informal estimate suggests that the population is declining at the rate of three percent per year. Erik Robinson, Timber Industry Wants Owl Review, COLUMBIAN, Feb. 25, 2002, available at 2002 WL 6583591.

LAURA HARTT *

* Associate Editor, Environmental Law, 2002-2003; J.D. and Certificate in Environmental and Natural Resources Law expected 2003, Lewis & Clark Law School; M.S. 1995, Utah State University (Wildlife Ecology); B.S. 1988, California State Polytechnic University at Pomona (Biology). I thank Professor Mike Blumm for comments and suggestions on several earlier drafts, as well as my colleagues from his Public Lands Law course for several engaging and critical discussions of public lands issues. I also thank Erik C. Swallow, 2001-2002 Ninth Circuit Review Editor, Environmental Law, for his comments.
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Date:Jun 22, 2002
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