The U.S. Forest Service should have prepared an environmental impact statement before awarding a series of contracts for timber salvage sales in the Umatilla National Forest in eastern Oregon, the Ninth U.S. Circuit Court of Appeals has ruled. The Ninth Circuit's ruling - the latest in a long series of decisions on Forest Service operations in the Northwest - reversed the ruling of U.S. District Court Judge Ann Aiken, who had granted summary judgment to the Forest Service against the claims brought by the Blue Mountains Biodiversity Project and other environmental groups. The ruling means that the Forest Service will have to prepare an EIS even though some of the sales had already commenced in the summer of 1998. The case involves proposed salvage timber operations in the wake of the largest wildfire in the recorded history of Umatilla National Forest. In 1996, three wildfires swept through the watershed of the North Fork of the John Day River in eastern Oregon and Washington, charring 51,000 acres in a 10- to 14-mile swath. Subsequently, the Forest Service proposed three separate timber sales - known as the "Big Tower" sales - encompassing more than 4,100 acres that would remove virtually all remaining trees in the area and yield 30 million board-feet of lumber. According to the Ninth Circuit ruling, however, 65% of the area to be logged contained soils with high erosion potential. The Forest Service prepared an environmental assessment, or EA, for the proposed timber sales. But the EA did not identify the locations of the 18 miles of road that would be required to complete the timber sales, nor did it discuss the cumulative impact of the Big Tower sales and four other timber sales proposed in the fire area. Following Judge Aiken's ruling, the Forest Service permitted logging to begin in August of 1998. In November, however, the Ninth Circuit enjoined all future logging and road building in the fire area pending a ruling in the case. In reversing Judge Aiken, the three-judge panel of the Ninth Circuit found considerable deficiencies with the Forest Service's EA for the Big Tower salvage operation. "The Big Tower EA simply fails to persuade that no significant impacts would result from Big Tower project," wrote Judge Betty Fletcher for the panel. "We find no documentation of the estimated sediment that would result from the logging and accompanying roadbuildings or the impacts of increased sediment on fisheries habitat. The Forest Service's only attempt to measure sedimentation failed when its data collection box overloaded with sediment." The Forest Service made several arguments as to why an EA was sufficient and an EIS was not necessary, but the Ninth Circuit rejected them all. For example, the EA identified "best management practices" to be used in the logging. But the Ninth Circuit noted that these best practices are based on "past observations of logging on unburned areas.": Wrote Judge Fletcher: "We find nothing in the EA to support the Forest Service's conclusion that the proposed BMPs will be adequate in a severely burned area where increased levels of erosion have already occurred. We note that even before the fire water quality was suffering." Similarly, the Ninth Circuit rejected the Forest Service's argument that an EIS was unnecessary because the timber sales could be "tiered" off of the Umatille National Forest Plan EIS and other EAs. "Nothing in the tiering regulations," Judge Fletcher wrote, "suggests that the existence of a programmatic EIS for a forest plan obviates the need for any future project-specific EIS, without regard to the nature or magnitude of a project." Perhaps most significantly, the Ninth Circuit found that the EA did not take cumulative impacts into account. The Big Tower project was only one of five separate salvage sales proposed in the wake of the fire. The Ninth Circuit noted that the Big Tower EA failed to even mention three of the four other salvage sales proposed for the fire area - even though the Forest Service acknowledged that all five were part of a coordinated strategy. "At the very least," wrote Judge Fletcher, "these sales raise substantial questions that they will result in significant environmental impacts. A single EIS, therefore, was required to address the cumulative effects of these proposed sales." The Ninth Circuit also ruled that the case was not rendered moot by the fact that more than half the trees have been cut down. Relying on its recent decision in Kettle Range Conservation Group v. U.S. Bureau of Land Management, 150 F.3d 1083, the Ninth Circuit panel concluded that because some trees are still standing the case is still a live one. The Case: Blue Mountains Biodiversity Project v. Blackwood, No. 98-35783, 98 Daily Journal D.A.R. 12223 (issued December 2, 1998). The Lawyers: For Blue Mountains Biodiversity Project: Marc D. Fink, Boise, Idaho. For U.S. Forest Service: Michael J. Martin, U.S. Department of Justice, Washington, D.C.