                  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
MANAGEMENT; ELAINE MARQUIS                   D.C. No.
                                           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
19004      OREGON NATURAL RESOURCES v. U.S. BLM


                         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 Ore-
gon, on the ground that the project violated the National Envi-
ronmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-
4370f. The specific violation was alleged to consist of con-
ducting an insufficient Environmental Analysis. ONRC
argues that the BLM did not sufficiently consider the cumula-
tive 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 log-
           OREGON NATURAL RESOURCES v. U.S. BLM          19005
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 Klamath-
Siskiyou 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 Proce-
dure 60(b)(5), and that there were no extraordinary circum-
stances 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.
19006      OREGON NATURAL RESOURCES v. U.S. BLM
   ONRC filed without success a motion for injunction pend-
ing 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 har-
vests 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 conse-
quences 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 conclu-
sions 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 arbi-
trary 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 Citi-
zens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971)).
           OREGON NATURAL RESOURCES v. U.S. BLM            19007
                        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) (quot-
ing 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 injunc-
tive relief in addition to costs, fees, and “[s]uch other and fur-
ther 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 post-
logging 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 miti-
gation 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 includ-
19008      OREGON NATURAL RESOURCES v. U.S. BLM
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 con-
clude 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 mor-
tality 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 func-
tions were yet to be completed at the time the case was sub-
mitted, and an appropriate EA can yet yield effective post-
harvest 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 contigu-
           OREGON NATURAL RESOURCES v. U.S. BLM           19009
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 infor-
mation 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 distin-
guishes 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 envi-
ronmental 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 sup-
ported 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 individu-
ally insignificant but cumulatively significant impacts. Signif-
icance 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
19010      OREGON NATURAL RESOURCES v. U.S. BLM
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 iso-
    lated 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 mobil-
ity, such as northern spotted owls, would likely still be able
to disperse across the landscape,” while “[t]he dispersal capa-
bility of species with low mobility, such as Del Norte sala-
manders, 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 com-
bined 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 har-
vested. A calculation of the total number of acres to be har-
vested in the watershed is a necessary component of a
cumulative effects analysis, but it is not a sufficient descrip-
           OREGON NATURAL RESOURCES v. U.S. BLM           19011
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 pos-
sible effects and some risk which we have held to be insuffi-
cient 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 subse-
     quent narrower statements or environmental analyses
     (such as regional or basinwide program statements
     or ultimately site-specific statements) incorporating
     by reference the general discussions and concentrat-
     ing solely on the issues specific to the statement sub-
     sequently 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 Pro-
posed Regional Management Plan-EIS (RMP-EIS). In KSWC,
19012      OREGON NATURAL RESOURCES v. U.S. BLM
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 succes-
sive timber sales.” KSWC, 387 F.3d at 997. The BLM con-
tends 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 Water-
shed 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 dis-
trict court is instructed to enjoin the remainder of the Mr. Wil-
son project until the BLM provides a revised Environmental
Assessment, including the required hard look at cumulative
impacts of the logging already completed on contiguous habi-
tat areas or neighboring habitat areas to be impacted by con-
templated 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.”
             OREGON NATURAL RESOURCES v. U.S. BLM                   19013
Maj. op. at 19004-05. Without disagreeing with the underly-
ing 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.” Neigh-
bors 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 cir-
cumstances, 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 viola-
  1
    At 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.
19014        OREGON NATURAL RESOURCES v. U.S. BLM
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 plain-
tiffs “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 unlaw-
ful, 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
  2
    The 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 sta-
tion 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.
            OREGON NATURAL RESOURCES v. U.S. BLM                 19015
   It is important to remember that NEPA is only a procedural
statute, i.e., it “imposes procedural requirements, but not sub-
stantive outcomes, on agency action.” Lands Council v. U.S.
Forest Serv., 395 F.3d 1019, 1026 (9th Cir. 2004). The major-
ity asserts that this case is not moot because “harm to old
growth species may yet be remedied by any number of miti-
gation strategies.” Maj. op. at 19007 (quoting Cuddy Moun-
tain II, 303 F.3d at 1066). But the majority forgets that, unlike
Cuddy Mountain II, this case involves only a NEPA chal-
lenge. Cuddy Mountain II also involved alleged violations of
the National Forest Management Act (“NFMA”), a statute
that imposes substantive requirements, as well as alleged vio-
lations 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 imple-
menting 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 log-
ging, 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 particu-
lar 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 vio-
lations of a procedural statute. Cf. Cuddy Mountain II, 303
  3
   The 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.
19016      OREGON NATURAL RESOURCES v. U.S. BLM
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 devel-
op[,] . . . 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 can-
not 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 substan-
tive 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 Moun-
tain II did we to confront the issue we are faced with today:
whether a court can provide any effective relief in a case rais-
ing only procedural issues under NEPA, when all logging and
hauling have already been completed. Thus, those cases sim-
ply 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.
           OREGON NATURAL RESOURCES v. U.S. BLM          19017
  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 forward-
looking statute that requires the federal agency to “consider
every significant aspect of the environmental impact of a pro-
posed 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 sub-
stance 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 Environ-
mental Assessment, including the required hard look at cumu-
lative 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 com-
pleted”? 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,
19018       OREGON NATURAL RESOURCES v. U.S. BLM
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 stat-
ute’s original intended purpose. It first notes that “the record
in this case reveals BLM preparation for future sales in con-
tiguous 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 envi-
ronment.” 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 — sup-
ports 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 reach-
ing and deciding the merits of this case.




  4
   This assumes, because the majority is determined not to find out the
facts, see footnote 1, supra, that the project has not already been com-
pleted.
