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November 28, 2011

NEPA Does Not Require Supplemental Analysis of a Final Decision that Makes Only Minor Changes and is within the Range of Alternatives Discussed in the Draft EIS.

NEPA Does Not Require Supplemental Analysis of a Final Decision that Makes Only Minor Changes and is within the Range of Alternatives Discussed in the Draft EIS.  

Russell Country Sportsmen v. U.S. Forest Service [Ninth Circuit No. 10-35623, filed October 12, 2011]

By Andrea A. Matarazzo

This recent opinion of the Ninth Circuit Court of Appeals deals with the adequacy of the Forest Service’s NEPA compliance for proposed revisions to an existing Travel Management Plan (TMP) to analyze and direct activities within specific areas of Montana’s Lewis and Clark National Forest.

A 1986 Forest Plan divided the Lewis and Clark National Forest into management zones, each with its own goals and standards.  The 1986 plan opened the forest to vehicle travel except for roads, trails, or areas specifically restricted.  In addition to the Forest Plan, the Forest Service developed a TMP.  The Service began a TMP revision process in 2000, and in 2005 it published a notice of intent in the Federal Register and compiled a list of “significant issues.”  The agency distributed a Draft Environmental Impact Statement (DEIS) in 2006, in which it presented seven alternatives, four for summer and three for winter recreation.  It did not identify a preferred alternative.

In October 2007, the Forest Service issued a Record of Decision (ROD) adopting a TMP for the area that affected 1,050,110 acres, or about 53% of the entire forest.  The Forest Service released the ROD and Final Environmental Impact Statement (FEIS), but the final alternative selected was not one of those presented in the DEIS.  Instead, in view of public comments regarding potential project impacts, the Forest Supervisor framed an alternative that combined and modified some of the alternatives presented in the DEIS.  Changes included an overall reduction in motorized routes, additional trail closures, a shortened snowmobile season, and removal of the 300-foot off-road-travel rule in favor of a “vehicle plus trailer length” restriction.  The agency’s basis for the proposed changes was to avoid or mitigate environmental concerns raised in public comments.

Russell Country Sportsmen challenged the Forest Service decision in the United States District Court of Montana, arguing that the agency failed to comply with NEPA because it selected an alternative that had not been adequately analyzed in the DEIS.  Under NEPA, an agency retains the discretion to modify a proposed action in response to public comments.  If, however, the proposed final action is substantially different from the range of alternatives analyzed in the NEPA document, then supplemental review is required.  (40 CFR § 1509.2(c).)

The district court found that the Forest Service violated NEPA in this respect, and held that the agency’s action was invalid because it failed to first prepare a supplemental EIS.  Reversing the district court, however, the Ninth Circuit Court of Appeals upheld the TMP.  The appellate court concluded that NEPA does not require supplemental analysis where “the final decision makes only minor changes and is qualitatively within the spectrum of the alternatives discussed in the draft EIS.”

The Ninth Circuit’s ruling interpreted the facts of the case to find that the agency’s action was merely a logical outgrowth of the range of alternatives considered in the DEIS.  In so doing, the appellate court enabled the Forest Service to implement the revised, and more environmentally protective, TMP without requiring the Service first to engage in additional NEPA review.

Authored by:

Andrea A. Matarazzo

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(916) 737-5838 (Direct)



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