FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OREGON NATURAL RESOURCES 

COUNCIL; KLAMATH SISKIYOU

WILDLANDS CENTER; UMPQUA

WATERSHEDS, INC.; HEADWATERS,

Oregon non-profit organizations,

Plaintiffs-Appellants,

v. No. 05-35245

UNITED STATES BUREAU OF LAND D.C. No.

M  ANAGEMENT; ELAINE MARQUIS CV-03-00478-HO

BRONG, State Director of the OPINION

Bureau of Land Management for

Washington and Oregon,

Defendants-Appellees,

and

HERBERT LUMBER COMPANY,

Defendant-Intervenor. 

Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Argued and Submitted

July 28, 2006—Portland, Oregon

Filed December 4, 2006

Before: Alfred T. Goodwin, A. Wallace Tashima, and

Susan P. Graber, Circuit Judges.

Opinion by Judge Goodwin;

Dissent by Judge Tashima

19001
COUNSEL

Ralph O. Bloemers, Cascade Resources Advocacy Group,

Portland, Oregon, for the plaintiffs-appellants. 

Michael Gray, U.S. Department of Justice, Environment &

Natural Resources Division, Washington, D.C., for Federal

defendants-appellees. 

OPINION

GOODWIN, Circuit Judge: 

Oregon Natural Resources Council Fund et al. (ONRC)

appeals a summary judgment in favor of the Bureau of Land

Management (BLM). We reverse and remand. 

ONRC challenged the “Mr. Wilson” logging project in the

Glendale Resource Area of the Medford BLM District in Oregon, on the ground that the project violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-

4370f. The specific violation was alleged to consist of conducting an insufficient Environmental Analysis. ONRC

argues that the BLM did not sufficiently consider the cumulative impact of the Mr. Wilson logging project in conjunction

with other past, present, and reasonably foreseeable projects

on timber harvest levels and on the northern spotted owl’s

critical habitat. The district court concluded that because log19004 OREGON NATURAL RESOURCES v. U.S. BLM
ging operations had been completed the cause was moot, and

granted summary judgment. 

I. Background

The BLM issued an Environmental Assessment (EA) for

the Mr. Wilson logging project in the Glendale Resource Area

of the Medford BLM District in July 2001. In October 2001,

the BLM issued a Finding of No Significant Impact on the

human environment and therefore did not prepare a more

thorough Environmental Impact Statement. 

ONRC commenced this action to halt the project in a

timely manner but did not succeed in obtaining a preliminary

injunction. ONRC contends that the BLM failed to comply

with NEPA’s environmental review requirements and seeks

declaratory and injunctive relief. The parties cross-moved for

summary judgment, and the district court issued an order

granting summary judgment to the BLM on June 23, 2004.

Meanwhile, logging proceeded. 

On August 23, 2004, ONRC moved the district court for

relief from the summary judgment, citing two subsequent

decisions: Lands Council v. Powell, 379 F.3d 738 (9th Cir.

2004), as amended 395 F.3d 1019 (2005), and KlamathSiskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d

989 (9th Cir. 2004) (KSWC). 

The district court denied the requested relief, holding that

a change in law does not trigger Federal Rule of Civil Procedure 60(b)(5), and that there were no extraordinary circumstances present to warrant invocation of Rule 60(b)(6). The

district court did state that “[n]otwithstanding [its holding],

the court would reconsider the June 23, 2004 order in light of

subsequent Ninth Circuit precedent if the court of appeals

were to find that procedure to be appropriate.” Final judgment

was entered on February 7, 2005. 

OREGON NATURAL RESOURCES v. U.S. BLM 19005
ONRC filed without success a motion for injunction pending appeal. The district court stated that KSWC “raises serious

questions regarding this court’s holding that the Bureau of

Land Management’s (BLM) analysis of cumulative effects on

northern spotted owls and late-successional habitat dependent

species and the habitat is sufficiently rigorous to satisfy the

requirements of the National Environmental Policy Act.” The

court then denied ONRC’s motion, stating that “[a]lthough

plaintiffs have raised a serious question for litigation on the

merits, this relatively small project is nearing completion,

with only commercial thinning operations remaining on lands

allocated for timber production.” 

On appeal ONRC contends that the Mr. Wilson EA lacked

a sufficiently detailed analysis of the cumulative effects of

past, present, and reasonably foreseeable future timber harvests on late-successional habitat. 

II. De Novo Review

We review NEPA compliance de novo. Kern v. U.S.

Bureau of Land Mgmt., 284 F.3d 1062, 1069-70 (9th Cir.

2002). Through the NEPA process, a federal agency must

“take[ ] a ‘hard look’ at the potential environmental consequences of the proposed action.” KSWC, 387 F.3d at 993

(quoting Churchill County v. Norton, 276 F.3d 1060, 1072

(9th Cir. 2001)). “The agency’s actions, findings, and conclusions will be set aside if they are arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

Id. at 992 (internal quotation marks omitted). 

Our inquiry into whether an agency’s decision was arbitrary or capricious “must ‘be searching and careful,’ but ‘the

ultimate standard of review is a narrow one.’ ” Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

416 (1971)). 

19006 OREGON NATURAL RESOURCES v. U.S. BLM
III. Mootness

[1] The BLM argues that this action is moot because all of

the timber harvesting has been completed and there remain no

project activities that could cause a significant environmental

impact. “[I]n deciding a mootness issue, ‘the question is not

whether the precise relief sought at the time the application

for an injunction was filed is still available. The question is

whether there can be any effective relief.’ ” Nw. Envtl. Def.

Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)). 

When evaluating the issue of mootness in NEPA

cases, we have repeatedly emphasized that if the

completion of the action challenged under NEPA is

sufficient to render the case nonjusticiable, entities

“could merely ignore the requirements of NEPA,

build its structures before a case gets to court, and

then hide behind the mootness doctrine. Such a

result is not acceptable.” 

Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir.

2001) (quoting West v. Sec’y of the Dep’t of Transp., 206 F.3d

920, 925 (9th Cir. 2000)). 

[2] In its complaint ONRC sought declaratory and injunctive relief in addition to costs, fees, and “[s]uch other and further relief as this Court deems just and proper.” The Mr.

Wilson project is not finished, and the absence of a proper

Environmental Assessment affected, or at least could have

affected, not only the logging decision but also the postlogging mitigation decision. The absence of the appropriate

“hard look” analysis thus has present consequences. Although

the harvested trees cannot be restored, “[b]ecause harm to old

growth species may yet be remedied by any number of mitigation strategies,” this case is not moot. Neighbors of Cuddy

Mountain v. Alexander, 303 F.3d 1059, 1066 (9th Cir. 2002)

(identifying possible relief beyond preventing logging includOREGON NATURAL RESOURCES v. U.S. BLM 19007
ing ordering the Forest Service to study the timber sale’s

impacts on species viability and to mitigate those impacts in

the sale area and elsewhere, ordering the Forest Service to

adjust future timber plans to compensate for this allegedly

unlawful one, and more direct species population intervention

such as monitoring population trends and developing artificial

habitats for their recovery). Neighbors involved claims under

both NEPA and the National Forest Management Act of 1976

(NFMA), and while the court determined the case was not

moot because of relief available under NFMA, it did not conclude that the appellants’ NEPA claim was moot for lack of

available relief. Rather, the court held there was no NEPA

violation in the first instance, because the agency had taken

the required “hard look” at potential environmental impacts.

Id. at 1071. Conversely, the BLM has not taken the requisite

“hard look” in this case, a failure that, as discussed below, has

present consequences. Our holding is also consistent with

Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147 (9th

Cir. 2006). In that case the logging company had a continuing

right to cut trees that met certain tree mortality guidelines,

while the three-year project term in this case has expired.

However, the live controversy in Earth Island did not exist

solely because of the prospective right to continue logging,

but also because there were “a variety of measures that could

provide some effective relief, including revising the tree mortality guidelines, monitoring of the California spotted owl,

and obtaining more accurate population surveys” of certain

bird species. Id. at 1157-58. 

[3] In the instant case, thinning and other husbandry functions were yet to be completed at the time the case was submitted, and an appropriate EA can yet yield effective postharvest relief. In addition to hazardous fuel and slash pile

management (together with related mitigation of past damage

and prevention of future damage that could be accomplished

by road closures), erosion prevention, and monitoring of the

logging effects on northern spotted owl activity, the record in

this case reveals BLM preparation for future sales in contigu19008 OREGON NATURAL RESOURCES v. U.S. BLM
ous or neighboring habitat areas. All such concerns have to be

considered with reference to habitat deterioration in the “hard

look” required in a legally sufficient EA. 

IV. How the EA falls short

The Mr. Wilson Environmental Assessment is inadequate

for the reasons previously explained in KSWC. First, the BLM

failed to disclose and consider quantified and detailed information regarding the cumulative impact of the Mr. Wilson

logging project combined with past, present, and reasonably

foreseeable logging projects. Second, the EA was tiered to

other documents that did not contain the requisite site-specific

information about cumulative effects. 

A. Quantified and Detailed Information

[4] The BLM failed to disclose and consider quantified and

detailed information regarding the cumulative impact of the

Mr. Wilson logging project combined with past, present, and

reasonably foreseeable logging projects. The BLM distinguishes the requirements of an Environmental Assessment

from an Environmental Impact Statement (EIS), and argues

that the Mr. Wilson EA contains enough information to allow

it to determine that the project would have no significant environmental impacts. This argument in effect says that the EA

is sufficient “because we say it is.” As discussed below, case

law in this circuit holds that such an answer must be supported by proper procedure. 

In determining whether a proposed action will significantly

impact the human environment, the agency must consider

“[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.” 40 C.F.R.

§ 1508.27(b)(7). NEPA’s implementing regulations define

cumulative impact as “the impact on the environment which

OREGON NATURAL RESOURCES v. U.S. BLM 19009
results from the incremental impact of the action when added

to other past, present, and reasonably foreseeable future

actions . . . . Cumulative impacts can result from individually

minor but collectively significant actions taking place over a

period of time.” 40 C.F.R. § 1508.7. 

The Mr. Wilson EA’s discussion of cumulative impacts

identifies seven past and future actions which could affect the

watershed. The EA notes that: 

The Key Elk, Mr. Wilson, and future Bear Pen and

Willy Slide timber sales, would remove or modify

up to approximately 1,000 acres of late-successional

habitat. Several large blocks greater than 300 acres,

functioning as corner to corner contiguous habitat

with other blocks, are likely to be substantially

reduced, and fragmented. The remaining small isolated habitat blocks in some sections are likely to be

harvested, removing the last late-successional blocks

in some sections. 

The EA then addressed the effects of this removal on high

mobility and low mobility species. “Species with high mobility, such as northern spotted owls, would likely still be able

to disperse across the landscape,” while “[t]he dispersal capability of species with low mobility, such as Del Norte salamanders, red tree voles, and mollusks, would be substantially

reduced . . . .” 

[5] KSWC addressed a similar cumulative impact objection

to EAs. Like the Mr. Wilson EA, the EAs at issue in KSWC

did not contain objective quantified assessments of the combined environmental impacts of the proposed actions. KSWC,

387 F.3d at 994. The discussion of future foreseeable actions

consisted of “an estimate of the number of acres to be harvested. A calculation of the total number of acres to be harvested in the watershed is a necessary component of a

cumulative effects analysis, but it is not a sufficient descrip19010 OREGON NATURAL RESOURCES v. U.S. BLM
tion of the actual environmental effects that can be expected

from logging those acres.” Id. at 995. The EAs also stated that

environmental concerns such as air quality, water quality, and

endangered species would not be affected. Id. However,

“[t]he EA is silent as to the degree that each factor will be

impacted and how the project design will reduce or eliminate

the identified impacts. This conclusory presentation does not

offer any more than the kind of general statements about possible effects and some risk which we have held to be insufficient to constitute a hard look.” Id. (internal quotation marks

omitted). Both the Mr. Wilson and the KSWC EAs “do not

sufficiently identify or discuss the incremental impact that can

be expected from each successive timber sale, or how those

individual impacts might combine or synergistically interact

with each other to affect the [watershed] environment.” Id. at

997. 

B. Tiering

[6] The Mr. Wilson EA is tiered to documents which did

not contain the requisite site-specific information about the

impacts of past, present, and reasonably foreseeable logging.

“Tiering” refers to the coverage of general matters in

broader environmental impact statements (such as

national program or policy statements) with subsequent narrower statements or environmental analyses

(such as regional or basinwide program statements

or ultimately site-specific statements) incorporating

by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. 

40 C.F.R. § 1508.28. 

[7] The Mr. Wilson EA is tiered to the West Fork Cow

Creek Wastershed Analysis, and to the Medford District Proposed Regional Management Plan-EIS (RMP-EIS). In KSWC,

OREGON NATURAL RESOURCES v. U.S. BLM 19011
we held that the Medford District RMP-EIS could not save

the EAs because it was missing “any specific information

about the cumulative effects. Neither in the RMP-EIS nor in

the EAs does the agency reveal the incremental impact that

can be expected . . . as a result of each of these four successive timber sales.” KSWC, 387 F.3d at 997. The BLM contends that, unlike the Mr. Wilson project land, the land

involved in KSWC was not matrix land identified to produce

a sustainable supply of timber and other forest commodities.

However, both cases involve Tier 1 Key Watersheds which

contain designated critical habitat for the northern spotted

owl. Id. at 992. Contrary to the BLM’s contention, KSWC is

not distinguishable on this ground. Tiering to the Medford

District RMP-EIS does not save the EA’s cumulative effects

analysis. Prepared in 1997, the West Fork Cow Creek Watershed Analysis similarly does not address the incremental

impact of the Mr. Wilson logging project, and therefore does

not save the cumulative effects analysis. Moreover, the

Watershed Analysis is not a NEPA document and therefore

the EA cannot tier to it. Id. at 998. 

V. Conclusion

[8] The summary judgment is reversed. On remand, the district court is instructed to enjoin the remainder of the Mr. Wilson project until the BLM provides a revised Environmental

Assessment, including the required hard look at cumulative

impacts of the logging already completed on contiguous habitat areas or neighboring habitat areas to be impacted by contemplated future sales. 

REVERSED and REMANDED with instructions.

TASHIMA, Circuit Judge, dissenting: 

The district court dismissed this case “because logging

operations had been completed [and] the cause was moot.”

19012 OREGON NATURAL RESOURCES v. U.S. BLM
Maj. op. at 19004-05. Without disagreeing with the underlying facts — that all logging and hauling operations have been

completed and all that remains to be done to complete the

project is some minor cleanup work in the form of hand piling

and slash burning — the majority holds that this case is not

moot. Because, in this case which presents only a challenge

under the National Environmental Policy Act (“NEPA”), 42

U.S.C. § 4321-4370f, I disagree with that conclusion, I

respectfully dissent. 

“A moot action is one where ‘the issues presented are no

longer “live” or the parties lack a legally cognizable interest

in the outcome.’ ” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d

1241, 1244 (9th Cir. 1988) (quoting Murphy v. Hunt, 455 U.S.

478, 481 (1982) (per curiam)). It is the constitutional “duty of

this court, as of every other judicial tribunal . . . to decide

actual controversies by a judgment which can be carried into

effect, and not to give opinions on moot questions.” Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1072

(9th Cir. 2002) (Thompson, J., dissenting in part) (quoting

Mills v. Green, 159 U.S. 651, 653 (1895)) (“Cuddy Mountain

II”). Accordingly, if effective relief cannot be granted, we

lack jurisdiction. Id. (citing Church of Scientology v. United

States, 506 U.S. 9, 12 (1992)). 

All of the logging and hauling of trees at the BLM’s Mr.

Wilson logging project was completed in September 2005,

more than one year ago.1 Our cases are clear that, in these circumstances, no effective relief is available under NEPA. In

Headwaters, Inc. v. Bureau of Land Management, 893 F.2d

1012, 1013 (9th Cir. 1990), plaintiffs alleged that the BLM

managed the logging of three units of a timber sale in viola1At the time of oral argument, all that remained to be done was hand

piling and slash burning, i.e., minor clean-up. Even that, undoubtedly, has

now been completed; however, we do not know for certain because the

majority has declined to ask for a current report on the status of the Mr.

Wilson project. 

OREGON NATURAL RESOURCES v. U.S. BLM 19013
tion of the Federal Land Policy and Management Act of 1976.

At the time of the appeal, the three units included in the sale

had already been logged. Id. at 1014. Even though defendants

still had to haul 50 percent of the logs from the site, and plaintiffs “made a broad request for such other relief as the court

deemed appropriate,” we deemed the case moot because “[n]o

relief [would] bring back the trees.” Id. at 1013, 1015 & n.6,

1016; see also Friends of the Earth, Inc. v. Bergland, 576

F.2d 1377, 1379 (9th Cir. 1979) (“Where the activities sought

to be enjoined have already occurred, and the appellate courts

cannot undo what has already been done, the action is

moot.”). In the instant case, the slash burning that remains to

be completed is an extremely trivial component of the overall

project, i.e., one that, if independently assessed, undoubtedly

would have no significant environmental impact. Thus, in this

case, even less remains to be done to complete the project

than in Headwaters, which we deemed moot. 

Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988), a

case involving NEPA challenges to a mining operation in

Alaska, is also instructive. There, we deemed a challenge to

an Environmental Assessment (“EA”) moot when the mining

season had already expired. See id. at 1317-18. We stated that

“even if we assume BLM’s decision making process is unlawful, no adequate remedy exists. Unlike a power transmission

line, a completed mining operation cannot be moved. The

impact of the Plan mines are not remediable since we cannot

order that the Plans be ‘unmined.’ ” Id. at 1318. Similarly, in

the instant case, we cannot order that the trees be “unharvested.”

2

2The majority’s reliance on Cantrell v. City of Long Beach, 241 F.3d

674, 678-79 (9th Cir. 2001), maj. op. at 19007, is also misplaced. Even

though Cantrell involved NEPA claims, the marine container terminal

project at issue had not yet been completed. While the buildings on the

Naval Station had been destroyed and the trees and structures of the station had been razed, construction of the terminal was ongoing, and we

noted that “the defendants could consider alternatives to the current reuse

plan.” Id. at 678. In the instant case, there is no reuse plan at issue and

there are no alternatives that can be considered. Practically speaking, the

project is complete and, unlike Cantrell, no effective relief is available. 

19014 OREGON NATURAL RESOURCES v. U.S. BLM
It is important to remember that NEPA is only a procedural

statute, i.e., it “imposes procedural requirements, but not substantive outcomes, on agency action.” Lands Council v. U.S.

Forest Serv., 395 F.3d 1019, 1026 (9th Cir. 2004). The majority asserts that this case is not moot because “harm to old

growth species may yet be remedied by any number of mitigation strategies.” Maj. op. at 19007 (quoting Cuddy Mountain II, 303 F.3d at 1066). But the majority forgets that, unlike

Cuddy Mountain II, this case involves only a NEPA challenge. Cuddy Mountain II also involved alleged violations of

the National Forest Management Act (“NFMA”), a statute

that imposes substantive requirements, as well as alleged violations of NEPA. It was in that context that we held that the

completion of logging did not moot the case because various

mitigation measures under the NFMA could provide effective

relief.3 No such relief is possible under NEPA. See Nat’l

Audobon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 202 (4th

Cir. 2005) (noting that courts “should take care not to craft a

remedy that extends beyond what NEPA itself and its implementing regulations require”). 

While it is true that ONRC sought an injunction barring

future timber sales in the Mr. Wilson project area, that is a

remedy that was available only before the completion of logging, i.e., to require compliance with NEPA before cutting

was complete; it is not available as a mitigation measure.

“[R]elief under NEPA must be tailored to remedy the particular violations in the case; courts will not issue injunctions

under NEPA only as prophylactic or punitive measures.”

Bergland, 576 F.2d at 1379. Considering that “NEPA itself

authorizes no private right of action,” Penfold, 857 F.2d at

1315, it is inappropriate to allow substantive remedies for violations of a procedural statute. Cf. Cuddy Mountain II, 303

3The majority’s reliance on Cuddy Mountain II is all the more puzzling

given its double-barreled admission that mootness was avoided in that

case only “because of relief available under NFMA,” maj. op. at 19008,

and that “there was no NEPA violation” in that case. Id.

OREGON NATURAL RESOURCES v. U.S. BLM 19015
F.3d at 1073-74 (Thompson, J., dissenting in part) (“A study

can do nothing to ameliorate the loss of old growth habitat

unless the study could lead to effective relief. . . . [as o]ld

growth cannot be constructed [and] takes centuries to develop[,] . . . mitigation is not possible.”). 

In concluding that this case is not moot, the majority also

relies on Earth Island Institute v. U.S. Forest Service, 442

F.3d 1147, 1157-58 (9th Cir. 2006). Maj. op. at 19008. In

Earth Island, however, the project was not yet completed,

because the logging company still had a contractual right to

cut down more trees. 442 F.3d at 1157. Here, unlike in Earth

Island, defendant-intervenor Herbert Lumber Company cannot cut more trees. The three-year term of the project, which

began on April 4, 2003, has expired. 

In addition, Earth Island, like Cuddy Mountain II, involved

alleged violations of NFMA, a statute which imposes substantive environmental requirements on the United States Forest

Service (“USFS”). See id. at 1154 (citing 36 C.F.R. § 219.12);

Lands Council, 395 F.3d at 1032-33 (noting that once the

USFS develops and adopts a Forest Plan, “NFMA prohibits

any site-specific activities that are inconsistent with the Forest

Plan”). To the extent that NFMA has the substantive aim of

preserving species, it makes sense to adopt remedies to further

that goal. In fact, the mitigation remedies proposed in Cuddy

Mountain II specifically pertained to the plaintiffs’ NFMA

claims. See 303 F.3d at 1072-74 (Thompson, J., dissenting in

part). To that end, in neither Earth Island nor Cuddy Mountain II did we to confront the issue we are faced with today:

whether a court can provide any effective relief in a case raising only procedural issues under NEPA, when all logging and

hauling have already been completed. Thus, those cases simply do not support the majority’s reliance on them for holding

when a case alleging only NEPA violations becomes moot.

As our precedents demonstrate, effective relief is no longer

available under these circumstances in a NEPA case. 

19016 OREGON NATURAL RESOURCES v. U.S. BLM
Because the Mr. Wilson logging project has been virtually

completed, requiring the BLM to do a makeover of the EA

will not further the purposes of NEPA. NEPA is a forwardlooking statute that requires the federal agency to “consider

every significant aspect of the environmental impact of a proposed action.” Vt. Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 519, 553 (1978) (emphasis

added). And we have stated that “the comprehensive ‘hard

look’ mandated by Congress and required by the statute must

be timely, . . . not as an exercise of form over substance, and

not as a subterfuge designed to rationalize a decision already

made.” Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000)

(emphasis added). 

Here, our injunction will not help any public officials make

decisions because those decisions have already been made —

there is no proposed action pending. Here, surely, requiring

the preparation of a new EA is an exercise of form over substance and all it can do is rationalize a decision, not only

already made, but already carried out. 

In keeping with the incongruity of deciding the merits in a

case in which no effective relief can be ordered, the majority

“instructs” the district court “to enjoin the remainder of the

Mr. Wilson project until the BLM provides a revised Environmental Assessment, including the required hard look at cumulative impacts of the logging already completed on contiguous

habitat areas or neighboring habitat areas to be impacted by

contemplated future sales.” Maj. op. at 19012. But what is the

purpose of requiring the preparation of a hypothetical EA to

examine the “cumulative impacts of the logging already completed”? Further, as I read the majority’s mandate, it does not

prohibit the BLM from abandoning, or permitting Herbert

Lumber Company to abandon, the project without completing

any remaining hand piling and slash burning, if it elects not

to prepare a new EA. I assume that such abandonment would

leave the project area in a slightly more degraded condition,

OREGON NATURAL RESOURCES v. U.S. BLM 19017
but without any major environmental consequences.4

 Again,

I ask, to what end and for what purpose are we requiring that

such a hypothetical injunction be issued. 

Finally, I note that the majority mischievously extends

NEPA’s environmental review requirement beyond the statute’s original intended purpose. It first notes that “the record

in this case reveals BLM preparation for future sales in contiguous or neighboring habitat areas.” Maj. op. at 19008-09.

It then orders that the new EA take a hard look at “contiguous

habitat areas or neighboring habitat areas to be impacted by

contemplated future sales.” Id. at 13 (emphasis added). It cites

no authority in support of this startling extension of NEPA.

NEPA’s “hard look” requirement is limited to “major federal

actions significantly affecting the quality of the human environment.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land

Mgmt., 387 F.3d 989, 993 (9th Cir. 2004) (quoting 42 U.S.C.

§ 4332(2)(C)). See also 40 C.F.R. § 1508.18 (defining “major

federal action”). Unlike the majority’s “contemplated action,”

the statutory term “major federal action” is a well-understood

(and extensively litigated) term of art under NEPA. No case

of which I am aware — and the majority cites none — supports the application of NEPA to contemplated future action.

The majority’s imposition of an EA for “contemplated future

sales” is thus an unwarranted extension of NEPA. 

For all of these reasons, I respectfully dissent from the

majority’s conclusion that this case is not moot and its reaching and deciding the merits of this case. 

4This assumes, because the majority is determined not to find out the

facts, see footnote 1, supra, that the project has not already been completed. 

19018 OREGON NATURAL RESOURCES v. U.S. BLM