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The Ninth Circuit's differential approach to alternatives analysis in NEPA cases: Westlands Water District v. United States Department of Interior.

I. INTRODUCTION
II. THE NINTH CIRCUIT'S APPROACH TO NEPA ALTERNATIVES ANALYSIS
III. THE NINTH CIRCUIT'S LIMITED RANGE OF ALTERNATIVES FOR
 CONSERVATION ACTIONS
 A. The Trinity River Division and Background of Westlands
 Water District v. United States Department of Interior
 B. The Ninth Circuit's Analysis in Westlands Water District
 v. United States Department of Interior
 C. The Ninth Circuit's Analysis in Kootenai Tribe of Idaho v.
 Veneman
IV. THE NINTH CIRCUIT'S RANGE OF ALTERNATIVES ANALYSIS FOR
 NON-CONSERVATION ACTIONS
V. THE IMPLICATIONS OF THE NINTH CIRCUIT'S APPROACH
 A. Limiting NEPA's Use as an Obfuscatory Tool
 B. Doing Away With Alternatives Analysis Under the Healthy
 Forests Initiative
VI. CONCLUSION


I. INTRODUCTION

The Trinity River rises in the rugged mountains of northern California and tumbles southward, picking up mountain rills, creeks, and full-blown rivers before thundering northwest toward the Klamath River in narrow granite-sided gorges and powerful emerald slicks. Historically, the Trinity River hosted enormous runs of salmon and steelhead, (1) sustaining the Hoopa and Yurok tribes as well as abundant wildlife and eventually commercial and sport fishermen. (2) Beginning in 1964, the Trinity River Division (TRD) of the Central Valley Project (CVP) diverted the majority of the river southward, through the Sacramento River, (3) to irrigate farmland in California's Central Valley. (4) The diversion also provided much needed water flows for endangered Sacramento River winter chinook (Oncorhynchus tshawytsha) and threatened delta smelt (Hyponesus transpacificous) imperiled by warm, low water conditions in the Sacramento River and high salinity in the San Francisco Bay Delta. (5)

After allowing the CVP to divert the river for several decades, (6) Congress sought in 1984 to resurrect fish and wildlife populations in the Trinity River Basin. To that end, Congress passed two statutes (7) and directed the Secretary of the Interior to complete the Trinity River Flow Evaluation (TRFE) by 1996. (8) The TRFE was initiated by the Secretary in 1981 to study the damage to the fishery caused by the TRD. (9) The Fish and Wildlife Service (FWS), in conjunction with the Hoopa Tribe, conducted the study, which concluded that increased flows mimicking natural conditions would be the most effective way to restore the fishery. (10) The TRFE recommended a permanent increase in water flows that would vary depending on yearly precipitation. (11) A draft environmental impact statement (DEIS), released in October 1999, considered this proposal along with several alternatives. (12) The final EIS, completed in November 2000, recommended implementation of the preferred TRFE flow augmentation plan in the Record of Decision (ROD) issued later that year. (13)

Westlands Water District (Westlands), the largest water district in California, filed suit following the release of the ROD, alleging that the EIS failed to comply with the National Environmental Policy Act (NEPA). (14) Specifically, Westlands argued that the range of alternatives addressed in the EIS failed to satisfy NEPA because the FWS statement of purpose and need, which determined the scope of the alternatives in the EIS, was based solely on the objective of increasing river flows, and was therefore impermissibly narrow. (15) The district court agreed, finding that the EIS had improperly narrowed the statement of purpose, and thus had failed to consider a reasonable range of alternatives. (16) The court enjoined full implementation of the recommended flow, (17) and directed the Department of the Interior to implement non-flow restoration measures such as bank restoration and vegetation development. (18)

FWS appealed the district court decision, and the Ninth Circuit rejected Westlands' challenge. (19) The court held that FWS had sufficient discretion to narrow the range of alternatives to consider only those alternatives that would fulfill the stated goals of the EIS: Trinity River anadromous salmonid habitat restoration. (20) The Ninth Circuit gave highly deferential treatment to the FWS statement of purpose and need, which concluded that only increased flows could create the desired improvements in salmonid habitat, thereby upholding a constrained range of alternatives for this proposed action. (21)

The central question addressed in this Chapter is whether the Ninth Circuit has adopted a variable approach to NEPA alternatives analysis that is dependent on the nature of the proposed action. More specifically, has the Ninth Circuit adopted a narrower definition of a reasonable range of alternatives for conservation actions than for non-conservation actions? If so, does the court's approach comply with NEPA, either as intended by its drafters or as interpreted by the Supreme Court?

Part II of this Chapter supplies a brief background of NEPA and the general framework the Ninth Circuit employs to determine the validity of the range of alternatives. Part III focuses on Westlands Water District v. United States Department of Interior (Westlands II), examining whether that case complies with the general Ninth Circuit NEPA framework. Part III then considers the decision in Kootenai Tribe of Idaho v. Veneman (Kootenal), (22) where the Ninth Circuit explicitly stated its analysis of the range of alternatives the agency is required to study is less rigorous if the proposed action is primarily designed to conserve the environment. (23)

Part IV compares the analysis in Westlands II and Kootenai with the Ninth Circuit's range of alternatives analysis concerning non-conservation actions, evaluating cases in which the court upheld the agency's range of alternatives, as well as those in which it did not. Part V considers the goals of NEPA and argues that the Ninth Circuit's approach will reduce procedural impediments, thus making it more difficult for opponents to use NEPA to challenge conservation actions. Part V then contrasts the Ninth Circuit's approach with the Bush Administration's limitations on required alternatives analysis under the Healthy Forest Initiative.

Both the Bush Administration's and the Ninth Circuit's approach to NEPA indicate the widespread belief that compliance with NEPA's stringent requirements can stifle important projects. Nevertheless, the Ninth Circuit's approach accords with NEPA's broad policy goals, while the Administration's approach does not. Part VI concludes that the Ninth Circuit's variable approach to NEPA's alternatives, which is dependent on the nature of the proposed action, permits agencies to analyze a narrower range of alternatives for conservation actions than for proposed resource extraction or development projects. This case by case analysis, based on the likely environmental outcome of the action, is consistent with the spirit of NEPA because it will enable agencies to implement environmentally beneficial actions more easily, but it is inconsistent with Supreme Court precedent since it transforms NEPA into a quasi-substantive tool, resulting in different outcomes depending on the nature of the proposed action.

II. THE NINTH CIRCUIT'S APPROACH TO NEPA ALTERNATIVES ANALYSIS

In 1970, Congress passed the visionary National Environmental Policy Act that declared the federal government and federal agencies would no longer be a part of the nation's environmental problem, but rather would become part of the solution. NEPA essentially contains two core provisions: the aspirational goals laid out in section 101 and the procedural requirements laid out in section 102. Section 101(a) provides in pertinent part:
 [t]he Congress ... declares that it is the continuing policy of the
 Federal Government ... to use all practicable means and
 measures ... to create and maintain conditions under which man and
 nature can exist in productive harmony, and fulfill the social,
 economic, and other requirements of present and future generations
 of Americans. (24)


Section 101(b) then describes specific responsibilities of the Federal Government, which include acting as a trustee of the environment for future generations, providing a healthy, productive, and aesthetically pleasing environment, and attaining the widest possible range of beneficial uses without degradation to the environment. (25) In 1978, the Council on Environmental Quality (CEQ) issued implementing regulations further clarifying NEPA's goals. (26) Among other things, the regulations stated that "[t]he NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment." (27)

Despite CEQ's interpretation of NEPA, the Supreme Court has repeatedly held that NEPA is not substantive, but merely procedural, (28) limited to insuring that agencies take a "hard look" at the proposed action in order to reach considered decisions. (29) Thus, NEPA does not require agencies to pursue any specific action, provided the procedural requirements of the Act have been met.

To satisfy NEPA's procedural requirements, agencies must prepare a statement on the environmental impact of the proposed action and "a detailed statement by the responsible official on ... alternatives to the proposed action." (30) NEPA implementing regulations clarify that every EIS must assess not only the environmental consequences of the action, but also reasonable alternatives to that action. (31) The regulations describe alternatives analysis as "the heart of the environmental impact statement," because it "sharply define[s] the issues" and gives both the decision maker and the public a clear basis upon which to determine the merits of the proposed action. (32) Importantly, the regulations also require agencies consider a no-action alternative, which serves as a baseline to judge the value of the other alternatives. (33)

Ultimately, in the Ninth Circuit and elsewhere, the statement of purpose dictates the range of reasonable alternatives, (34) and courts grant agencies "considerable discretion to define the purpose and need of a project." (35) Moreover, a reviewing court does not require consideration of alternatives that would not satisfy the goals of the project. (36) To prevent agencies from preordaining the selection of the preferred alternative, agencies may not articulate the objectives in unreasonably narrow terms. (37) Nevertheless, "an agency is not required to 'consider alternatives which are infeasible, ineffective, or inconsistent with the basic policy objectives." (38) Thus, it seems agencies may refuse to consider alternatives that would not achieve the goals of the project as described in the statement of purpose and need. As this Chapter will show, however, the Ninth Circuit grants agencies more discretion to define project purposes in comparatively narrow terms when the agency proposes a conservation action.

III. THE NINTH CIRCUIT'S LIMITED RANGE OF ALTERNATIVES FOR CONSERVATION ACTIONS

The following two cases illustrate that when the Ninth Circuit reviews an agency's alternatives analysis for reasonableness, the depth of review depends on whether the agency has proposed an action with the primary purpose of conserving or restoring the natural environment, or whether the agency has proposed a development or extractive action. Where the stated primary purpose is conservation or restoration, (39) as in Westlands II, the court does not require the agency to consider alternatives less protective of environmental values, even though an agency proposing a non-conservation action, such as a timber sale, would be required to analyze alternatives with less impact on the environment. This is true even when the proposed conservation action itself could have potentially serious impacts on the environment. (40)

A. The Trinity River Division and Procedural Background of Westlands Water District v. United States Department of Interior

In 1955, Congress approved the Trinity River Division of the Central Valley Project, which culminated in the completion of the Lewiston Dam in 1964 on the Trinity River near Weaverville, California. Thereafter, the Bureau of Reclamation diverted nearly seventy percent of the river's flow to irrigators in California's Central Valley. (41) The completion of the Lewiston and Trinity River Dams blocked 109 miles of spawning habitat, imposing, in the words of the Westlands II court, "what was essentially extreme drought conditions for more that thirty years," (42) and creating unseasonable temperatures that caused physiological and behavioral problems for anadromous salmonids in the Trinity River system. (43) This led to declining run sizes (44) causing problems for tribal fishermen, commercial fishermen, and sport fishermen, both in the Trinity River and on the lower mainstem of the Klamath River as well. (45)

A 1980 FWS study determined that habitat losses in the Trinity River due to reduced flows exceeded eighty percent, and the fish population had been reduced by at least sixty percent. (46) In response, Congress passed several Acts, notably the Trinity River Basin Fish and Wildlife Management Act (47) and the Central Valley Project Improvement Act, (48) which set a minimum release volume of 340,000 acre-feet per year from Trinity Dam and required the Secretary of Interior to complete the Trinity River Flow Evaluation (TRFE). (49) Finished in 1999, the study recommended a return to flows approximating pre-construction levels. In 1999, FWS and the Bureau of Reclamation, in close consultation with state, county, and tribal agencies, (50) issued a draft EIS, which recommended implementation of the TRFE flows. (51)

B. The Ninth Circuit's Analysis in Westlands Water District v. United States Department of Interior

In 2000, the Westlands challenged flow restoration measures proposed by FWS for the Trinity River, arguing that the proposed action violated the procedural requirements of NEPA and the Endangered Species Act (ESA). (52) Westlands alleged that the FWS impermissibly narrowed the range of alternatives under NEPA. (53) In particular, Westlands sought consideration of an alternative that would have served the objectives of the project without having to reduce yearly irrigation diversions. (54)

Westlands succeeded in convincing the district court that the EIS impermissibly narrowed the statement of purpose and therefore produced an unreasonable range of alternatives. (55) Specifically, Westlands argued that the EIS improperly narrowed the geographic scope of the statement of purpose by focusing solely on fishery rehabilitation on the mainstem of the Trinity River, despite statutory language directing fishery rehabilitation basin-wide below the Lewiston Dam. (56) The statement of purpose read in pertinent part: "[t]he purpose of the proposed action is to restore and maintain the natural production of anadromous fish on the Trinity River mainstem downstream of Lewiston Dam." (57) FWS had based its statement of purpose on three distinct concerns. (58) First, in 1955, in the Trinity River Basin Fish and Wildlife Management Act, Congress directed that diversions from the Trinity River would not be detrimental to fish populations, yet by 1984, Congress recognized that reduced flows harmed stream habitat causing drastic declines in fish stocks. (59) Then, in 1995, in the Trinity River Basin Fish and Wildlife Management Reauthorization Act, Congress acknowledged the damaging impacts of the diversion on the Trinity River ecosystem and fishery, and declared that "restoration of depleted stocks of naturally produced anadromous fish is critical to the dependent tribal, commercial and sport fisheries." (60) Finally, the draft EIS recognized that the federal government has a trust responsibility to protect Hoopa and Yurok tribal fisheries damaged by water withdrawals. (61)

In contrast to FWS's statement of purpose, both the Central Valley Project Improvement Act and the Trinity River Basin Fish and Wildlife Management Act called for fishery restoration in the Trinity River mainstem and tributaries. (62) The district court agreed with Westlands that focusing narrowly on fishery rehabilitation in the mainstem, to the exclusion of tributaries below the dam, violated congressional intent. (63)

The Ninth Circuit reversed, holding that although the EIS's statement of purpose did not precisely follow the letter of the statutes, (64) the statement was not arbitrary and capricious because scientific evidence suggested that the vast majority of propagation occurred on the mainstem and "[r]estoring the fishery in the mainstem is a central, primary part of restoring the fishery in the basin as a whole." (65) In light of the importance of mainstem rehabilitation to basin-wide recovery, the court held that the agencies had acted within their discretion in narrowing the purpose of the proposal to habitat restoration on the mainstem of the Trinity River. (66)

Westlands maintained the statement of purpose effectively limited consideration of non-flow measures, such as increased hatchery production and in-stream habitat improvements, (67) but the court ruled the statement of purpose was not impermissibly narrow for three reasons. First, nothing in the language of the statement of purpose explicitly precluded consideration of non-flow measures. Second, the determination that habitat improvements derived from increased flow would best rehabilitate the fishery was within the agency's discretion. Finally, FWS did in fact consider several non-flow measures at the early stages of the process, and the agency incorporated at least some non-flow measures into every alternative. (68)

Westlands also challenged the range of alternatives evaluated in the EIS. The court acknowledged that an EIS must "[r]igorously explore ... all reasonable alternatives," (69) but observed that the "range of alternatives that must be considered in the EIS need not extend beyond those reasonably related to the purposes of the project." (70) The EIS evaluated six alternatives and concluded that four of them met the purposes and needs of the project. (71) The primary difference between these four alternatives was the volume of water discharged into the Trinity River. (72) Westlands argued these alternatives did not satisfy the requirement for a reasonable range of alternatives because the EIS failed to consider non-flow alternatives, such as increased hatchery production and predator control, that would have permitted increased or, at least, maintained yearly irrigation diversions. (73) The court rejected this argument because the record showed non-flow measures were included in each alternative. (74) In addition, one alternative, the Mechanical Restoration Alternative, would have imposed aggressive non-flow measures, while maintaining the minimum discharge volume set in the Central Valley Project Improvement Act. (75) The court therefore concluded that FWS had considered such measures and acted within its discretion under NEPA when it ultimately rejected them. (76)

The Ninth Circuit also overturned the district court conclusion that failure to consider more midrange alternatives preordained the selection of the recommended alternative. The court noted that agencies are not required to analyze every possible permutation, but rather are required only to select alternatives that encourage "informed decision-making and informed public participation." (77)

The Ninth Circuit upheld the FWS range of alternatives because the court concluded that the EIS statement of purpose was not overly narrow. (78) Therefore, FWS did not violate NEPA by considering only alternatives that would increase water releases into the Trinity River. (79) On its face, the Ninth Circuit's analysis of NEPA's reasonable range of alternatives requirement in Westlands II does not differ from the court's analysis of an agency's range of alternatives for non-conservation actions, but as Part IV shows, the court actually permits a narrower range of alternatives to satisfy NEPA's reasonable range of alternatives requirement when reviewing conservation actions.

C. The Ninth Circuit's Analysis in Kootenai Tribe of Idaho v. Veneman

In contrast to the implicitly lenient analysis of required alternatives in Westlands II, the Ninth Circuit in Kootenai Tribe of Idaho v. Veneman explicitly reasoned that the NEPA alternatives requirement need not be interpreted as stringently when the agency has proposed an action that "has a primary and central purpose to conserve and protect the natural environment, rather than to harm it." (80) This explicit articulation means that when an agency frames its proposed action as primarily conservation-oriented, the Ninth Circuit will uphold agency alternatives analysis even if none of the alternatives consider impacts on non-conservation values.

Kootenai began when the Kootenai Tribe, joined by the Boise Cascade Corporation, off-road recreational groups, livestock associations, and two Idaho Counties (Boise and Valley), challenged the Roadless Area Conservation Rule initially proposed by the United States Forest Service in 2000. (81) The rule identified over fifty million acres as roadless areas on which road building was prohibited. (82) The plaintiffs challenged the rule by arguing a ban on road construction would harm the environment by limiting firefighting capabilities and the Forest Service's ability to control other threats within national forests. (83) The plaintiffs claimed that the Forest Service violated NEPA, arguing the agency seriously considered only three alternatives, all of which required a near complete ban on new roads in roadless areas. (84)

The district court agreed with the plaintiffs and concluded that all three Forest Service alternatives were substantially similar because each alternative banned road construction almost completely. (85) The court also determined that the failure to consider an alternative that protected roadless areas, but still allowed some road construction and timber harvest, violated NEPA's reasonable range of alternatives requirement. (86)

The Ninth Circuit reversed, holding that the Forest Service had not violated NEPA's alternatives requirement, despite the fact that the EIS considered no alternative offering anything less than a "near total ban on road construction in roadless areas." (87) Like the panel in Westlands II, the Kootenai court looked to the Forest Service's statement of purpose for the roadless rule in order to determine whether the Forest Service had considered a reasonable range of alternatives. (88) In essence, the agency's objective was to prevent activities that would degrade the ecological and social value, and other desirable characteristics of inventoried roadless areas. (89) Unlike the Westlands II court, however, the panel in Kootenai expressly stated that "[t]he NEPA alternatives requirement must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than to harm it." (90) The court even seemed to suggest that had the plaintiffs not alleged at least some potential for environmental harm from the proposed action, there would have been no reason for the Forest Service to have analyzed alternatives at all. (91) Thus, the court upheld the Forest Service's range of alternatives as reasonable, ruling that proposed conservation actions, such as the one at issue in Kootenai enable agencies to satisfy NEPA's alternatives analysis requirement with a narrower range of alternatives than would otherwise be required. (92)

IV. THE NINTH CIRCUIT'S RANGE OF ALTERNATIVES ANALYSIS FOR NON-CONSERVATION ACTIONS

Kootenai is the only case in which the Ninth Circuit has expressly employed a different analysis for the required range of alternatives under NEPA, depending on whether the agency has proposed a conservation or non-conservation action. Nevertheless, this part shows that even when the Ninth Circuit employs its alternatives analysis without reference to whether the proposed action is a conservation or non-conservation action, as it did in Westlands II, the required range of alternatives is more rigorous for non-conservation actions.

In 1977, in California v. Block, (93) a case involving the Forest Service's Roadless Area Review and Evaluation, the agency proposed categorizing all remaining roadless areas in the National Forest System into the following three categories: (94) 1) a "wilderness" category that Congress would consider for inclusion in the National Wilderness Preservation System (NWPS), 2) a "further planning" category which would remain under protection until an individual determination could be made regarding suitability for inclusion in the NWPS or designation as non-wilderness, and 3) a "non-wilderness" category that would be released to multiple-use, such as timber harvest. (95) In January 1979, the Forest Service issued a final EIS recommending that Congress designate 15 million acres as wilderness, (96) proposing that 10.8 million acres be retained for further planning and releasing 36 million acres to multiple-use. (97) California filed suit, alleging that the Forest Service failed to comply with NEPA and arguing, among other things, that the Forest Service selected an excessively narrow range of alternatives. The court noted that three of the eleven alternatives served primarily as points of reference: 1) an "all wilderness" alternative, 2) a "no wilderness" alternative, and 3) a "no action" alternative, which would maintain the status quo and make no designations. (98) Of the eight alternatives seriously considered by the Forest Service, none would have designated more than thirty-three percent of the roadless acreage as wilderness. (99) Additionally, six of the alternatives would have designated over half of the acreage as non-wilderness. (100)

The state of California alleged that the Forest Service impermissibly narrowed the range of alternatives because each alternative would produce nearly identical results, a circumstance that suggested the agency had not considered a reasonable range of alternatives. (101) The district court agreed, concluding that the Forest Service should have considered an intermediate alternative allocating more than one-third of the acreage to wilderness. (102)

The Ninth Circuit upheld the district court's rejection of the Forest Service's range of alternatives, based on the objective of the proposed designations. (103) The court stated that "[t]he policy problem [designation] seeks to confront is how to allocate a scarce resource--wilderness--between the two competing and mutually exclusive demands of wilderness use and development." (104) The court noted that the Forest Service could not analyze those competing interests coherently without determining if future resource extraction needs could be met at already developed areas. (105) The court stated that "[w]hile nothing in NEPA prohibits the Forest Service from ultimately implementing a proposal that allocates more acreage to Nonwilderness [sic] than to Wilderness, it is troubling that the Forest Service saw fit to consider at the outset only those alternatives leading to that end result." (106) Thus, Block indicates that the Ninth Circuit was troubled by what it saw as a predetermined outcome leading invariably to detrimental and likely permanent environmental impacts.

In contrast, the Kootenai panel upheld a narrower range of alternatives than that rejected in Block, precisely because the underlying proposed action was conservation-oriented. This suggests that in the Ninth Circuit, NEPA may not be used to thwart conservation actions, although it may successfully be used to challenge non-conservation actions.

In another case concerning a proposed non-conservation action, Resources Limited Inc. v. Robertson, (107) several environmental organizations challenged a forest-wide EIS issued for the Flathead National Forest contending that the Forest Service failed to consider "timber harvest levels that were substantially lower than existing harvest levels." (108) In particular, plaintiff environmental organization Resources Limited argued that the Forest Service impermissibly used modeling criteria that limited alternatives to those in which future harvest levels were consistent with past harvest levels. (109)

The Ninth Circuit disagreed with the plaintiffs because, despite the fact that the Forest Service established criteria in order to generate alternatives that it would seriously consider, five of the seventeen alternatives were based on harvest levels at least eighteen percent lower than existing levels. (110) The Ninth Circuit distinguished Block, in which the court stated that the Forest Service "consider[ed] only those alternatives with [the same] end result." (111) Thus, the Resources Limited court upheld the agency's range of alternatives for this Land and Resource Management Plan because the agency did not select only those alternatives leading to a predetermined rate of timber harvest. (112)

Although the range of alternatives as framed by the environmental plaintiffs in Resources Limited was narrow, it was considerably broader than the range of alternatives presented in Kootenai, in which all three alternatives banned new road construction almost completely. (113) Moreover, the Resources Limited court seemed to stress that if the agency had only considered alternatives that increased or even maintained existing harvest levels, instead of analyzing five alternatives offering lower rates of harvest, the agency's alternatives analysis would have been impermissibly narrow, as in Block. (114) This comparison indicates that the Ninth Circuit requires agencies proposing non-conservation actions to analyze alternatives that are less environmentally harmful than the preferred alternative. In contrast, agencies proposing conservation actions need not analyze alternatives less restrictive of development or extractive uses. (115)

Akiak Native Community v. United States Postal Service (116) was similar to Resources Limited in that the Ninth Circuit upheld agency analysis of a relatively narrow range of alternatives. (117) There, the Postal Service wanted to change its delivery method from fixed wing aircraft to hovercraft to better service eight remote Native communities along the Kuskokwim River in Alaska. (118) The agency's stated project purpose was to increase efficiency and reliability of service. (119) The plaintiffs, a group of Native communities worried that use of hovercraft would frighten wild game necessary for sustenance, alleged that the Postal Service failed to follow its own regulations by inadequately analyzing the no-action alternative and by failing to analyze a reasonable range of alternatives. (120)

In its environmental assessment, the Postal Service analyzed the no-action alternative, the preferred hovercraft alternative, and an alternative that prohibited hovercraft use during subsistence bird hunting seasons. (121) The Ninth Circuit ruled that the Service adequately considered the no-action alternative, concluding that it failed to meet the objectives of the project because it would not increase reliability or efficiency. (122) The court also upheld the Service's decision not to consider other methods of mail delivery, reasoning that the Postal Service could reject vehicles such as trucks, boats, or fixed-wing aircraft because "[i]t was the inefficiencies of these traditional alternatives that gave rise to the need for the experimental hovercraft project in the first place." (123) Finally, the Ninth Circuit concluded that the Postal Service permissibly rejected the alternative limiting hovercraft use to certain seasons because the Service concluded that the seasonal limitation alternative would be more costly and the effects of the preferred alternative on the environment would be insignificant. (124)

Although the Ninth Circuit upheld a relatively narrow range of alternatives in Akiak Native Community, that result is not inconsistent with its approach to NEPA alternatives analysis because the environmental assessment conducted by the Postal Service led to a finding of no significant impact (FONSI). (125) If the purpose of NEPA's alternatives analysis requirement is to ensure excellent decision making through consideration of alternatives that still fulfill the purpose of the project but have fewer environmental impacts, (126) alternatives in an EA/FONSI need not be as comprehensive as for projects that have significant potential environmental impacts.

V. THE IMPLICATIONS OF THE NINTH CIRCUIT'S APPROACH

The Ninth Circuit upholds agency alternatives analysis more often than not, regardless of the purpose of the underlying action. Agencies proposing conservation actions receive greater discretion, however, to define the purpose of the project in comparatively narrow terms, and moreover, even when each alternative will produce essentially the same result, as in Kootenai the Ninth Circuit will uphold the agency's range of alternatives as reasonable.

A. Limiting NEPA's Use as an Obfuscatory Tool

The Ninth Circuit's approach will not only lead to a reduced workload for agencies proposing conservation actions because the agency will not need to rigorously analyze such a broad range of alternatives, but opponents of certain conservation actions will no longer be able to use NEPA as an obfuscatory tool for delaying and ultimately preventing environmentally beneficial agency action. (127)

This reduced NEPA burden accords with the broad policy goals of the Act and its implementing regulations by "help[ing] public officials ... take actions that protect, restore, and enhance the environment." (128) Indeed, as the Ninth Circuit stated in Kootenai, "[c]ertainly, it was not the original purpose of Congress in NEPA that government agencies in advancing conservation of the environment must consider alternatives less restrictive of developmental interests." (129) Nor was NEPA meant to be "used to preclude lawful conservation measures by [federal agencies] or to force federal agencies, in contravention of their own policy objectives, to develop and degrade scarce environmental resources." (130) To require otherwise would be to thwart one of NEPA's fundamental goals--injecting environmental considerations into agency decisions. Where the agency's primary purpose is to conserve the environment, and the agency thus has already considered the effects of the proposed action on the environment, NEPA does not require consideration of less environmentally beneficial alternatives.

B. Doing A way With Alternatives Analysis Under the Healthy Forests Initiative

In its Healthy Forests Initiative, the Bush Administration also sought to prevent NEPA from delaying or frustrating what it saw as important projects. (131) Its approach did not comport with the goals of NEPA, however, because unlike the Ninth Circuit's approach, it exempted from NEPA alternatives analysis large-scale activities with significant potential environmental impacts and did not foster consideration of environmental impacts in decision making. (132)

The Healthy Forests Initiative significantly reduced NEPA's range of alternatives requirement for certain fuel reduction projects (133) by providing only three required alternatives: 1) the proposed action, 2) a no-action alternative, and 3) one alternative to the proposed action. (134) When the proposed action is in the so-called wildland-urban interface, (135) and within 1.5 miles of a community, the statute completely eliminates the requirement for alternatives analysis. (136)

The Bush Administration argued that one of the policies behind the Healthy Forest Initiative is to preserve forests by preventing catastrophic wildfires, but the primary purposes seemed to be protecting communities and private property and increasing rates of timber harvest. (137) Although protecting private property and increasing revenue for rural communities through increased timber production are both worthy goals, NEPA requires consideration of potential environmental impacts, as well as consideration of a reasonable range of alternatives to the project before agencies make final decisions. (138) Removing alternatives analysis from those projects guts NEPA's ability to foster informed environmental decision making. Therefore, the Bush Administration's approach, which allows non-conservation actions to evade NEPA's requirement for alternatives analysis, is diametrically opposed to the goals of the Act and the Ninth Circuit's approach, which prevents non-conservation interests from thwarting conservation actions. Indeed, the Administration's approach completely eliminates consideration of environmental values in certain classes of fuel reduction projects. At heart, NEPA's goal is to "prohibit uninformed--rather than unwise--agency action." (139) The Bush Administration's approach not only condones environmentally uniformed decisions, but also fosters them.

VI. CONCLUSION

Ultimately, as Westlands II illustrates, the Ninth Circuit scrutinizes the required range of alternatives less rigorously when reviewing conservation proposals than non-conservation proposals. This dichotomy presents agencies seeking to preserve or enhance the environment with a lower NEPA hurdle, effectively preventing obstructionist action opponents from delaying or eventually derailing conservation or preservation-oriented projects. Despite the fact that it may be difficult in certain circumstances to determine precisely which actions qualify for less rigorous review of alternatives analysis, the Ninth Circuit's approach, which protects environmentally beneficial actions from being thwarted by a statute designed to inject environmental considerations into all federal decision making, makes perfect sense. Thus, it seems that in the Ninth Circuit, at least, although NEPA may not have yet begun its true march towards substantive consequence, NEPA can no longer be used to frustrate the goals it was designed to promote, a healthier environment through environmentally informed federal actions. (140)

(1) There is limited data on the size of early fish runs, but estimates suggest that before the completion of the mainstem dams in 1963, 75,000 fall chinook ascended the river beyond the North Fork. U.S. DEP'T OF THE INTERIOR, RECORD OF DECISION, TRINITY RIVER MAINSTEM FISHERY RESTORATION FINAL ENVIRONMENTAL IMPACT STATEMENT/ENVIRONMENTAL IMPACT REPORT (hereinafter ROD) at 2 (Dec. 19, 2000) (on file with author).

(2) For the Hoopa and Yurok Indians who live in the Trinity and lower Klamath Basins, salmon was and continues to be a dietary staple with historic annual consumption amounting to over 2 million pounds. ROD, supra note 1, at 4. Specific data on revenue generated by sport fisheries on the Trinity River is scant, but nationwide, sport anglers spent $35.6 billion in 2001. FLW OUTDOOR MEDIA CENTER, US FISHING FACTS, at http://mc.flwoutdoors.com/mc/usfacts.cfm (last visited July 24, 2005). Commercial revenue generated by Trinity River stocks is also hard to quantify, largely because once salmon leave their natal river, they mingle with, and are indistinguishable from, other stocks. Nevertheless, in 1988 the commercial troll fishery in Northern California earned roughly $50 million. See TOTAL COMMERCIAL NON-INDIAN SALMON REVENUES FOR CALIFORNIA, OREGON, AND WASHINGTON TROLL AND GILLNET, 1981-1996 at http://oregonstate.edu/instruct/anth481/sal/pnwsal.html (last visited July 24, 2005) (depicting graphically that salmon revenues for various fisheries).

(3) The physical process of diverting water from the Trinity River is quite complex. Trinity Dam, one of the largest earth fill dams in the world, serves as a storage reservoir forming Clair Engle Lake with a maximum capacity of nearly 2.5 million acre-feet. BUREAU OF RECLAMATION, SHASTA AND TRINITY RIVER DIVISIONS OF THE CENTRAL VALLEY PROJECT PLAN, at http://www.nsbr.gov/dataweb/html/shasta.html (last visited July 24, 2005). Water leaving Trinity Dam flows through hydroelectric turbines with a capacity of roughly 140,000 kilowatts before entering Lewiston Lake. Id. Lewiston Dam, located several miles downstream, diverts water into the Clear Creek tunnel, which transports it over the rugged Trinity Mountains into Whiskeytown Lake in the Sacramento River drainage. Id. The Clear Creek Unit of the Central Valley Project diverts a small percentage of water for irrigation before the rest of the water travels into Keswick Reservoir and then on to the Sacramento River. Id.

(4) From 1964 to 1997, irrigation districts in California's Central Valley diverted an average flow of nearly one million acre-feet per year (about 68% of the river's flow). During the first ten years of the project, from 1964-1974, the rate of diversion was even higher, averaging about 88% of the river's flow. This decimated salmon and steelhead populations by the 1970s. See U.S. FISH AND WILDLIFE SERVICE AND HOOPA VALLEY TRIBE, TRINITY RIVER FLOW EVALUATION, FINAL REPORT (TRFE) 8 (1999), available athttp://arcata.fws.gov/fisheries/reports/trfe/final/trfe.pdf.

(5) Sacramento River winter chinook were listed as endangered in 1994. Status of Sacramento River Winter-run Chinook Salmon Final Rule, 59 Fed. Reg. 440, 440 (Jan. 4, 1994). San Francisco Bay Delta smelt were listed as threatened in 1993. Determination of Threatened Status for the Delta Smelt Final Rule, 58 Fed. Reg. 12,854, 12,854 (Mar. 5, 1993).

(6) Studies conducted on the Trinity River in the early 1950s convinced Congress that "surplus water" could be diverted to the Central Valley without harming the fisheries in the Trinity or Klamath Rivers. Indeed, estimates suggested that 700,000 acre-feet per year was "wasting to the Pacific Ocean." See ROD, supranote 1, at 4 (citing H.R. REP. 602 at 4-5 (1955); S. REP. No. 1154 at 5 (1955)). The original law authorizing diversion to the Central Valley also contained language directing the Secretary of the Interior to take necessary measures to protect fish and wildlife in the Trinity River Basin. Act of Aug. 12, Pub. L. No. 69-386, [section] 2 (1955) (stating that the "Secretary [of the Interior] is authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife, including, but not limited to, the maintenance of the flow of the Trinity River").

(7) Trinity River Basin Fish and Wildlife Management Act, Pub. L. No. 98-541, 98 Stat. 2721 (1984); Central Valley Project Improvement Act, Pub. L. No. 102-575, 106 Stat. 4714 (1992).

(8) Pub. L. No. 102-575, [section] 3406(b)(23)(A), 106 Stat. 4714, 4720 (1992).

(9) ROD, supra note 1, at 6.

(10) Id. at 2.

(11) Id. at 10, 12, 20, 25. The TRFE adopted the Flow Evaluation Alternative as the preferred choice to achieve restoration of the Trinity River fishery while allowing continued diversion for irrigation in the Central Valley. Under the Flow Evaluation Alternative, annual water releases to the Trinity River would vary based on annual precipitation. Years would be categorized into five categories, from critically dry to extremely wet, and water releases would be directly related to each category. For example, in critically dry years an annual discharge of 369,000 acre-feet, a small increase from the minimum of 340,000 acre-feet set in the Central Valley Project Improvement Act, would be required. Normal years would require a discharge of 647,000 acre-feet and extremely wet years would require a discharge of 815,000 acre-feet. The Flow Evaluation Alternative also incorporated non-flow measures, such as sediment introduction and channel rehabilitation.

(12) The FWS led the EIS team, with assistance from Bureau of Reclamation, the Hoopa Tribe, and Trinity County. U.S. FISH AND WILDLIFE SERV. ET.AL., TRINITY RIVER MAINSTEM FISHERY RESTORATION DRAFT ENVIRONMENTAL IMPACT STATEMENT/REPORT (hereinafter DEIS) (1999), available at http://www.ccfwo.r1.fws.gov/fisheries/reports/treis/Draft/Start.pdf.

(13) ROD, supranote 1, at 2.

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

(15) Westlands Water Dist. v. United States Dep't of interior, 275 F. Supp. 2d 1157, 1205-06 (E.D. Cal. 2002) (stating that "to the extent that restoration can be accomplished by means other than flows, the Secretary [of the Interior] must at least consider utilizing such other means").

(16) Id. at 1234. Both NEPA and the Council on Environmental Quality's implementing regulations require consideration of a reasonable range of alternatives. See 42 U.S.C. [section] 4332(c)(i), (iii) (2000); 40 C.F.R. [section] 1502.14.

(17) In March 2001, the court issued a preliminary injunction capping flow releases at 368,600 acre-feet per year. Westlands, 275 F. Supp. 2d at 1174. In March 2002, the district court modified its injunction to allow the release of 468,600 acre-feet for 2002. Id. at 1175.

(18) Westlands, 275 F. Supp. 2d at 1235. The court also ordered FWS to issue a supplemental EIS to discuss issues, such as the California energy crisis and power plant bypass flows, which were inadequately addressed in the original EIS. Id.

(19) Westlands Water Dist. v. United States Dep't of Interior (Westlands II), 376 F.3d 853, 868 (9th Cir. 2004).

(20) Id. at 866.

(21) Id. at 870-72.

(22) 313 F.3d 1094 (9th Cir. 2002).

(23) Id. at 1120.

(24) 42 U.S.C. [section] 4331(a) (2000).

(25) Id. [section] 43310)).

(26) Council on Environmental Quality NEPA Implementing Regulations, 43 Fed. Reg. 55,977 (Nov. 29, 1978).

(27) 40 C.F.R. [section] 1500.1(c) (2004) (emphasis added).

(28) See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 548 (1978) (holding that agencies cannot by implication add procedures to APA-mandated rulemaking); see also Tillamook County v. United States Army Corps of Eng'rs, 288 F.3d 1140, 1143 (9th Cir. 2002) ("NEPA is a procedural statute intended to ensure environmentally informed decision-making by federal agencies.").

(29) Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 814 (9th Cir. 1999) ("NEPA ... simply provides the necessary process to ensure that federal agencies take a 'hard look' at the environmental consequences of their actions.") (internal quotations omitted); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 371 (1989) ("NEPA merely prohibits uninformed--rather than unwise--agency action."); Save Lake Washington v. Frank, 641 F.2d 1330, 1334 (9th Cir. 1981) (citing Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980)) ("NEPA does not require that the agency elevate environmental concerns over legitimate nonenvironmental considerations.").

(30) 42 U.S.C. [section] 4332(c)(i), (iii) (2000).

(31) 40 C.F.R. [section] 1502.14 (2004).

(32) Id.

(33) Id. at [section] (d); Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1065-66 (9th Cir. 1998) (stating that NEPA implementing regulations "require[] that agencies shall include the 'alternative of No Action.' This alternative is required within all NEPA analyses to provide a benchmark to compare outputs and effects, even though this alternative does not meet the purpose and need of the project." Id.

(34) See Carmel-By-The-Sea v. United States Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir. 1995) The Court stated that "project alternatives derive from an Environmental Impact Statement's Purpose and Need section, which briefly defines the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action") (internal quotations omitted).

(35) Friends of Southeast's Future, 153 F.3d at 1066 (citing generally City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986)).

(36) See Angoon, 803 F.2d at 1021 (stating that "[w]hen the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved") (emphasis added); Trout Unlimited v. Morton, 509 F.2d 1276, 1286 (9th Cir. 1974) (stating that "[t]he range of alternatives that must be considered need not extend beyond those reasonably related to the purposes of the project"). (37) Carmel-By-The-Sea, 123 F.3d at 1155. (38) Westlands II, 376 F.3d 853, 868 (9th Cir. 2004) (quoting Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1180 (9th Cir. 1990)).

(39) Kootenai Tribe of Idaho y. Veneman best defined what constitutes a conservation action subject to less stringent review of alternatives: "The NEPA alternatives requirement must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than to harm it." 313 F.3d 1094, 1120 (9th Cir. 2002). Thus, when an agency's primary purpose is conservation or restoration, the court permits a narrower range of alternatives to satisfy NEPA's reasonable range of alternatives requirement, while proposed actions permitting development or extractive uses, such as grazing or timber harvest, require a broader range of alternatives to satisfy the reasonable range of alternatives requirement. See also Oregon Natural Desert Ass'n v. Green (ONDA v. Green), 953 F. Supp. 1133, 1147 (D. Or. 1997), where the court rejected BLM's assertion that permitting grazing in the Donner and Blitzen watershed, while allegedly taking measures to protect the river's outstanding values, was not subject to review under NEPA because of the "beneficial impacts of its actions." There, BLM was savvy to the Ninth Circuit's variable approach to NEPA; however, it failed to convince the Ninth Circuit that continued grazing, even at reduced levels, constituted an action not subject to NEPA review because it preserved the environmental status quo or improved the environment. BLM based its argument on the holding in Douglas County v. Babbitt, where the court held that the FWS did not need to prepare an EIS in order to designate critical habitat because "an EA or EIS is not necessary for actions that conserve the environment." 48 F.3d 1495, 1505 (9th Cir. 1984). ONDA v. Green indicates that proposed actions permitting development or extraction are non-conservation actions, even if they reduce the level of environmental harm from previous levels.

(40) Indeed, although the primary purpose of the proposed action in Westlands II was to restore anadromous salmonids in the Trinity River, curtailing the diversion will eliminate several corollary environmental benefits. For example, the diversion increased the water volume of the Sacramento River, which helped keep water temperatures low enough to sustain endangered Sacramento River winter chinook salmon. See supra note 5 and accompanying text. Increased water in the Sacramento River also helped stem excessive upstream salt migration into the San Francisco Bay Delta. Id. To mitigate for the harmful effects of the proposed action, NMFS and FWS issued several reasonable and prudent measures, as required by the Endangered Species Act. Westlands II, 376 F.3d at 872. These included using the Trinity River bypass outlets "as needed" to keep Sacramento River temperatures to a suitable level and releasing water during certain months to prevent upstream salt migration. The Ninth Circuit affirmed the district court in setting aside the latter measure without a supplemental EIS because "[r]edirecting flows in accordance with [it] will affect wildlife ... and will likely have broad system-wide effects in the CVP." Id at 876. The Ninth Circuit's approach will not lead to unconsidered or unintended results even though agencies proposing conservation actions are not required to consider as broad a range of alternatives because an environmental assessment or EIS still requires the agency to adequately describe the environmental effects of the proposed action. 40 C.F.R. [section] 1502.1 (2004). Moreover, as was the case in Westlands II, other statutes like the Endangered Species Act may impose certain requirements that prevent biological or environmental harm. Westlands II, 376 F.3d at 877. (41) See supra note 4.

(42) Westlands II, 376 F.3d at 862.

(43) Id.

(44) In 1984, Congress concluded that
 the construction of the Trinity River division of the Central
 Valley project in California, authorized by the Act of August 12,
 1955, has substantially reduced the streamflow in the Trinity River
 Basin thereby contributing to damage to pools, spawning gravels,
 and rearing areas and to a drastic reduction in the anadromous fish
 populations and a decline in the scenic and recreational qualities
 of such river system.


Pub. L. No. 98-541 [section]1(1), 98 Stat. 2721 (1984) (emphasis added).

(45) Higher Trinity River flows in the late summer and early fall could help alleviate chronic fish kills in the Klamath River caused by prolonged high temperatures and low dissolved oxygen levels. In September 2002, those conditions combined to kill an estimated 33,000 adult fall chinook, 20% of the fall chinook run on the lower Klamath River. See Klamath River Fish Die Off, September 2002, Report on Estimate of Mortality, U.S. Fish and Wildlife Service Report No. AFWO-01-03 (Nov. 7, 2003), available at http://www.ccfwo.rl.fws.gov/reports/klamath/AFWO-01-03.pdf. (46) ROD, supra note 1, at 5. See also William F. Grader et al., Restoring the Balance, CALIFORNIA ADVISORY COMMITTEE ON SALMON AND STEELHEAD TROUT 1988 ANNUAL REPORT 64 (stating that since diversions to the Central Valley began in 1964, the steelhead population has declined by 90%).

(47) Trinity River Basin Fish and Wildlife Management Act, Pub. L .No. 98-541, 98 Stat. 2721 (1984).

(48) Central Valley Project Improvement Act, Pub. L. No. 102-575, 106 Stat. 4714 (1992).

(49) Id [section](b)(23). 106 Stat. at 4720 (1992).

(50) Only federal agencies and federal actions are subject to NEPA. National Environmental Policy Act of 1969, 42 U.S.C. [subsection] 4321-4370(e) (2000). However, as stakeholders in the region, the tribes, county, and state were closely involved in the process as commenting and consulting agencies.

(51) DEIS, supranote 12, at 1-2.

(52) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(53) FWS analyzed six alternatives, and gave serious consideration to four of them. Westlands, II 376 F.3d at 868. The preferred Flow Evaluation Alternative would have released between 369,000 and 815,000 acre-feet yearly. Id. at 869. The Maximum Flow Alternative, which FWS determined was the most environmentally beneficial, would have released all inflow to the dams into the Trinity River, completely eliminating diversions to the Sacramento River. Id at 870. Under that alternative, dam releases would range from 463,000 acre-feet in critically dry years to 2,146,000 acre-feet in extremely wet years. Id. The Percent Inflow Alternative, like the Flow Evaluation Alternative, would have released water based on natural flow patterns, albeit at a reduced scale, ranging from 165,000 acre-feet in critically dry years to 978,000 in extremely wet years. Id. at 869. The Mechanical Restoration Alternative would have maintained the release level of 340,000 acre-feet per year, as mandated in the CVPIA. Id.; ROD, supra note 1, at 10.

(54) Westlands II, 376 F.3d at 870 (arguing that FWS should have considered an alternative combining increased hatchery production with habitat rehabilitation). (55) Westlands II, 275 F. Supp. 2d 1157, 1219 (E.D. Cal. 2002), rev'd, 376 F.3d 853.

(56) Id. at 1210.

(57) Trinity River Mainstem Fishery Restoration Program, 67 Fed. Reg. 13,647, 13,647 (Mar. 25, 2002).

(58) Westlands II, 376 F.3d 853, 866 (9th Cir. 2002).

(59) In the Trinity River Basin Fish and Wildlife Management Act, Congress concluded that: "the construction of the Trinity River division of the Central Valley project in California, authorized by the Act of August 12, 1955, has substantially reduced the streamflow in the Trinity River Basin thereby contributing to damage to pools, spawning gravels, and rearing areas and to a drastic reduction in the anadromous fish populations and a decline in the scenic and recreational qualities of such river system." Pub. L. No. 98-541, [section]1(1), 98 Stat. 2721, 2721 (1984) (emphasis added).

(60) Westlands II, 376 F.3d at 853; see also Trinity River Basin Fish and Wildlife Management Reauthorization Act of 1995, Pub. L. No. 104-143, 110 Stat. 1338 (1996) (showing that Congress intended to measure Trinity River restoration by the health of the anadromous fisheries as well as by the ability of tribal, commercial, and sport fisherman to participate in harvest opportunities).

(61) DEIS, supra note 12, at 1-4.

(62) Congress enacted the Trinity River Basin Fish and Wildlife Management Act to "rehabilitate fish habitats in the Trinity River between Lewiston Dam and Weitchpec" and to "rehabilitate fish habitats in tributaries of such river below Lewiston Dam and in the south fork of such river." Pub. L. No. 98-541, [section] (2)(a)(1)(A), (B), 98 Stat. 2721, 2722 (1984). Likewise, Congress enacted the CVPIA,
 (a) to protect, restore, and enhance fish, wildlife, and associated
 habitats in the Central Valley and Trinity River basins of
 California; (b) to address impacts of the Central Valley Project on
 fish, wildlife and associated habitats; (c) to improve the
 operational flexibility of the Central Valley Project; (d) to
 increase water-related benefits provided by the Central Valley
 Project to the State of California through expanded use of
 voluntary water transfers and improved water conservation; (e) to
 contribute to the State of California's interim and long-term
 efforts to protect the San Francisco Bay/Sacramento-San Joaquin
 Delta Estuary; (f) to achieve a reasonable balance among competing
 demands for use of Central Valley Project water, including the
 requirements of fish and wildlife, agricultural, municipal and
 industrial and power contractors.


Pub. L. No. 102-575, [section] 3402, 106 Stat. 4600, 4706 (1992).

(63) Westlands, F. Supp. 2d at 1215.

(64) See supra note 62.

(65) Westlands II, 376 F.3d 853, 867 (2004).

(66) Id.

(67) Id. at 870.

(68) Id.

(69) 40 C.F.R. [section] 1502.14(a) (2004).

(70) Laguna Greenbelt, Inc. v. United States Dep't of Transp., 42 F.3d 517, 524 (9th Cir. 1994).

(71) Westlands II, 376 F.3d at 868 (2004).

(72) Id.

(73) Id. at 870.

(74) Id.

(75) The non-flow measures in the Mechanical Restoration Alternative included protection of the watershed through road decommissioning and other sediment-reduction measures, as well as forty-seven channel rehabilitation projects, the dredging of ten potential pools, and the mechanical placement of spawning gravel. DEIS, supra note 12, at 2-26. The CVPIA required a minimum yearly release of 340,000 acre-feet until the completion of the Trinity River Flow Evaluation Study, which was meant to determine permanent fishery flow requirements. Central Valley Project Improvement Act, Pub. L. No. 102-575, [section] 3406(b)(23), 106 Stat. 4706, 4714 (1992).

(76) Westlands II, 376 F.3d at 871.

(77) Id. at 872 (citing California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)).

(78) Id at 871.

(79) Id. at 872.

(80) Kootenai, 313 F.3d 1094, 1120 (9th Cir. 2002).

(81) Id. at 1104.

(82) Id. at 1105.

(83) Id. at 1112.

(84) Id. at 1120. The three alternatives for inventoried roadless areas were: 1) to prohibit road construction and reconstruction, but allow timber harvest, leading to a 73% drop in harvest levels; 2) to prohibit road construction, reconstruction, and timber harvest, except as necessary to maintain forest health, for example to fight fire, insect infestations, and disease, causing an 85% reduction in harvest levels; or 3) to prohibit all road construction, reconstruction, and timber harvest in inventoried roadless areas, causing a 100% reduction in timber harvest levels. Id.

(85) Id.

(86) Id. at 1123.

(87) Id.

(88) Id. at 1121.

(89) Id. (stating that the "objective ... was to prohibit activities that have the greatest likelihood of degrading desirable characteristics of inventoried roadless areas and to ensure that ecological and social characteristics of inventoried roadless areas are identified and evaluated through local land management planning efforts. The Forest Service defined these values as, among other things, undisturbed landscapes, sources of water, biological diversity, protection against invasive species, and educational opportunities") (internal quotations and punctuation omitted). Inventoried roadless areas are capable of sustaining values of wilderness characteristics, and have been inventoried by the Forest Service through Roadless Area Review Evaluations, first initiated in 1972 and re-initiated in 1978. California v. Block, 690 F.2d 753, 758 (9th Cir. 1982).

(90) Kootenai, 313 F.3d at 1120 (emphasis added).

(91) Id. (stating that "[t]he reason for a proper concern with alternatives here is that plaintiffs have urged that an excess of conservation will be harmful to the environment by precluding appropriate actions in developing roads useful for fighting fires, or insects, or other hazards") (emphasis added). Thus, the court seemed to be suggesting that without alleged environmental damage there would have been no reason for the agency to analyze alternatives at all. See also Douglas County v. Babbitt (Douglas County), 48 F.3d 1495, 1505 (9th Cir. 1995) (holding that failure to issue an EIS when designating critical habitat for the northern spotted owl was not a violation of NEPA because an "EA or EIS is not necessary for federal actions that conserve the environment"). Both Douglas County and Kootenai indicate that although "NEPA's procedural safeguards may be used to benefit those who assert development interests ... NEPA's policy objectives must not be thwarted in the process." Kootenai 313 F.3d at 1123.

(92) Kootenai, 313 F.3d at 1120.

(93) 690 F.2d 753 (9th Cir. 1982).

(94) Id. at 758.

(95) Id.

(96) Id.

(97) Id.

(98) Id. at 765.

(99) Id.

(100) Id.

(101) California v. Bergland, 483 F. Supp. 465, 487 (E.D. Cal. 1980).

(102) Id. at 492-493.

(103) Block, 690 F.2d at 767-768.

(104) Id. at 767.

(105) Id.

(106) Id. at 768.

(107) 35 F.3d 1300 (9th Cir. 1994).

(108) Id. at 1307.

(109) Id.

(110) Id.

(111) Id.

(112) Id.

(113) Kootenai 313 F.3d 1094, 1120 (9th Cir. 2002).

(114) Resources Limited, 35 F.3d at 1307.

(115) See, e.g., Oregon Envtl. Council v. Kunzman, 614 F. Supp. 657, 659-660 (D. Or. 1985) (stating that NEPA only requires consideration of alternatives that "avoid or minimize" adverse environmental impacts).

(116) 213 F.3d 1140 (9th Cir. 2000).

(117) Id. at 1148.

(118) Id. at 1143.

(119) Id. at 1148.

(120) Postal Service regulations provide that it "[s]tudy, develop, describe, and evaluate ... reasonable alternatives to recommended actions which may have a significant impact on the environment." 39 C.F.R. [section] 775.8(a)(4) (2004).

(121) Akiak Native Community, 213 F.3d at 1148.

(122) Id.

(123) Id.

(124) Id.

(125) Id. at 1145.

(126) See 40 C.F.R. [section] 1502.14 (2004) (stating that alternatives analysis is designed to "sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decision maker and the public").

(127) See Frank B. Cross, The Judiciary and Public Choice, 50 HASTINGS L.J. 355, 375 (1999) (stating that "[t]he National Environmental Policy Act is notorious for special interest abuse. The Act's extensive procedural commands can be used by anyone interested in frustrating or delaying a major government action."); see also Jonathan M. Cosco, NEPA for the Gander: NEPA's Application to Critical Habitat Designations and Other "Benevolent" Federal Action, 8 DUKE ENVTL. L. & POL'Y REV. 345, 349 (1998) (stating that NEPA can be used as a "tool for delaying or even defeating critical habitat designations and other environmentally benevolent federal actions"). After Kootenai, Westlands H, and Douglas Count, however, it seems that in the Ninth Circuit, NEPA is no longer a tool for frustrating environmentally beneficial agency action.

(128) 40 C.F.R. 1500.1(c) (2004).

(129) Kootenai, 313 F.3d 1094, 1120 (2002).

(130) Id. at 1123.

(131) For a comprehensive overview of the Healthy Forest Initiative, see Jesse B. Davis, Comment, The Healthy Forest Initiative: Unhealthy Policy Choices in Forest and Fire Management, 34 ENVTL. L. 1209 (2004).

(132) Healthy Forest Restoration Act, 16 U.S.C.A. [subsection] 6501-6591 (West Supp. 2004).

(133) The Healthy Forests Initiative also expanded categorical exclusions for certain categories of fuel reduction and timber harvest projects, thus allowing those projects to completely avoid NEPA's burdensome procedural requirements. Id. at 1224-25. NEPA's implementing regulations permit categorical exclusions for certain "categor[ies] of actions which do not ... have a significant effect on the human environment." 40 C.F.R. [section] 1508.4 (2004).

(134) Healthy Forest Restoration Act, 16 U.S.C.A. [section] 6514(b)-(c) (West Supp. 2004).

(135) The wildland-urban interface is "[t]he line, area, or zone where structures and other human development meet or intermingle with undeveloped wildland or vegetative fuels." Davis, supra note 131, at 1215 n.38 (citing WESTERN GOVERNORS' ASS'N, A COLLABORATIVE APPROACH FOR REDUCING WILDLAND FIRE RISKS TO COMMUNITIES AND THE ENVIRONMENT: 10-YEAR COMPREHENSIVE STRATEGY 16 (2001), http://www.westgov.org/wga/initiatives/fire/final_fire_rpt.pdf).

(136) Davis, supranote 131, at 1238.

(137) Id. at 1211.

(138) National Environmental Policy Act of 1969, 42 U.S.C. [section] 4332(c)(iii) (2000); 40 C.F.R. [section] 1502.14 (2004).

(139) Roberston v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

(140) See William Rodgers, NEPA at Twenty: Mimicry and Recruitment in Environmental Law, 20 ENVTL. L. 485, 503 (1990) (predicting that from NEPA's twentieth anniversary in 1990, NEPA would slowly march toward substantive consequence over the next twenty years).

SHEMS BAKER-JUD *

* [c] Shems Baker-Jud, 2005. Member, Environmental Law, 2004-2005; J.D. and Certificate in Environmental and Natural Resources Law expected May 2006, Lewis & Clark Law School; B.A. 2000, University of California, Santa Cruz. The author wishes to thank Professor Michael Blumm for his thoughtful guidance, the staff of Environmental Law for their hard work and helpful edits, and Crystal Alexander for her support and encouragement.
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