Southwest Center for Biological Diversity v. U.S. Forest Service

• Decision Date: 11 October 1996
• Docket Number: DEFENDANTS-APPELLEES,No. 96-15756,PLAINTIFF-APPELLANT,96-15756
• Citation: 100 F.3d 1443
• Parties: SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, A NON PROFIT CORPORATION,, v. U.S. FOREST SERVICE; JOHN MCGEE, FOREST SUPERVISOR, CORONADO NATIONAL FOREST; DAN GLICKMAN, SECRETARY OF THE DEPARTMENT OF AGRICULTURE,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1443

100 F.3d 1443

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, A NON PROFIT CORPORATION, PLAINTIFF-APPELLANT, v. U.S. FOREST SERVICE; JOHN MCGEE, FOREST SUPERVISOR, CORONADO NATIONAL FOREST; DAN GLICKMAN, SECRETARY OF THE DEPARTMENT OF AGRICULTURE, DEFENDANTS-APPELLEES.

No. 96-15756

United States Court of Appeals NINTH CIRCUIT

Argued and Submitted Oct. 11, 1996

Decided: November 19, 1996.

Geoff Hickcox, Kenna and Associates, Durango, Colorado, for the plaintiff-appellant.

Lisa E. Jones, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona, William D. Browning, District Judge, Presiding, D.C. No. CV-95-00879-WDB.

Before: James R. Browning, Dorothy W. Nelson, and Ferdinand F. Fernandez, Circuit Judges.

D.W. NELSON, Circuit Judge:

The Southwest Center for Biological Diversity appeals the district court's grant of summary judgment in favor of the United States Forest Service in Southwest Center's action claiming that a proposed sale of salvage timber in the Coronado National Forest violates the Rescissions Act of 1995, Pub. L. No. 104-19, 2001, 109 Stat. 194, 240-47. The Rescissions Act provides that the Secretary of Agriculture shall prepare an Environmental Assessment (EA) under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4335, and a Biological Evaluation (BE) under the Endangered Species Act (ESA), 16 U.S.C. 1531-1544, for each proposed salvage timber sale.

Southwest Center claims that (1) the Biological Assessment and Evaluation (BA&E) prepared by the Forest Service did not comply with the documentation requirements of the Rescissions Act; (2) the Forest Service's Conclusion in the BA&E that the timber sale would not affect the Mexican Spotted Owl is arbitrary and capricious; (3) the issuance of a categorical exclusion that exempted the sale from further analysis under NEPA was also arbitrary and capricious; and (4) the district court erred by granting the defendant's motion to strike extra-record documents.

We have jurisdiction under 28 U.S.C. 1291, and we affirm. We conclude that the Forest Service's documentation in this case met the requirements of the Rescissions Act, and that the Forest Service's Conclusions were not arbitrary and capricious.

BACKGROUND

The Rescissions Act of 1995¹ is an appropriations measure that includes provisions to expedite the award of salvage timber sale contracts. An authorized agency may propose a salvage timber sale if "an important reason for entry includes the removal of disease- or insect-infested trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack." 2001(a)(3). Section 2001(c)(1) of the Act sets forth streamlined procedures pursuant to which the Secretary of Agriculture must prepare, advertise, offer, and award all contracts for salvage timber sales on National Forest Lands. For each proposed sale, the Secretary must prepare an EA under NEPA and a BE under the ESA.² The sales are otherwise exempt from all applicable federal environmental and natural resource laws. 2001(i).

In February 1995, the Forest Service determined that a portion of the Coronado National Forest that had been damaged by a 1994 forest fire would be appropriate for harvest. The Forest Service designated 69 of the 27,500 acres burned in the Rattlesnake fire as suitable for salvage and proposed the Rustler Salvage Timber Sale. On May 30, 1995, the Forest Service sent a letter to interested members of the public announcing the plan to salvage the fire-damaged timber and proposing a genetic rehabilitation project in conjunction with the sale.

On August 14, 1995, a Forest Service biologist conducted a BA&E and reported that the planned timber sale would have no effect on any threatened or endangered species within the project area, including the Mexican Spotted Owl. The assessment concluded that the salvage sale would not affect the owl because the burned over salvage area "provides neither foraging nor nesting habitat."

This "no effect" Conclusion is in tension with an internal Fish and Wildlife Service policy on agency actions that may affect the Mexican Spotted Owl. The policy was articulated in a memorandum distributed to Fish and Wildlife Service field office supervisors in Arizona and New Mexico. The memorandum states that agency actions within one mile of a Mexican Spotted Owl Protected Activity Center, or actions that alter mixed conifer or pine-oak forest habitats, may affect the Mexican Spotted Owl.

The proposed Rustler Sale implicates both of these conditions. It originally fell within the Rustler Park Management Territory for Mexican Spotted Owls, but the Forest Service eliminated the Rustler Park Territory on May 10, 1995, one month after the Fish and Wildlife Service issued its policy on activities conducted in close proximity to Mexican Spotted Owl Protected Activity Centers and Territories. Although the Rustler Park Territory has been eliminated, the proposed sale still falls within one mile of the Centella Point and Barfoot Protected Activity Centers.

Moreover, there is no dispute that the Rustler Sale will alter mixed conifer and pine-oak habitats. Although the BA&E does not directly address the habitat in the project area, other documents in the record reveal that the habitat is the type identified by the Fish and Wildlife Service in its Mexican Spotted Owl policy. The Archeological Survey completed for the project notes that the vegetation in the project area is "mixed conifer forest," and mentions a "sprouting of shrubby oaks." The BA&E's Discussion of the thick-billed parrot also indicates that the project area is not purely a pine-type habitat. Despite the habitat in and location of the project area, the Forest Service determined that the sale would have no effect on the Mexican Spotted Owl.

Relying on the "no effect" determination in the BA&E, the Forest Service further concluded that there were no extraordinary circumstances that would prohibit the issuance of a categorical exclusion from analysis under NEPA. Under Forest Service regulations, absent extraordinary circumstances such as the presence of threatened or endangered species, a categorical exclusion is available for a salvage timber harvest "which removes . . . 1,000,000 board feet or less of merchantable wood products; which requires one mile or less of low standard road construction . . . ; and assures regeneration of harvested or salvaged areas, where required." Forest Service Handbook 1909.15, 31.2, Par. 4 (1992). The Rustler Sale will remove an estimated 250,000 board feet of dead timber, and it requires no new roads. Pursuant to these regulations, the Forest Service issued a categorical exclusion for the Rustler Sale on November 16, 1995.³ As a result, no further environmental assessment under NEPA was conducted.

On December 12, 1995, the District Ranger published a notice in the Douglas Daily Dispatch reporting the Forest Service's decision to implement the Rustler Sale. Southwest Center filed its complaint in federal district court on December 27, 1995, seeking declaratory and injunctive relief and alleging that the Forest Service's decision to proceed with the Rustler Sale violated the Rescissions Act and was arbitrary and capricious.

On cross-motions for summary judgment, the district court found that the failure to prepare a combined EA/BE was not a per se violation of the Rescissions Act. The court also concluded that neither the "no effect" finding nor the categorical exclusion relying on it was arbitrary and capricious. Accordingly, the district court granted the Forest Service's motion for summary judgment. The district court also struck all of the documents submitted by the parties that did not form part of the administrative record compiled by the Forest Service.

STANDARD OF REVIEW

Although it narrows judicial review, 2001(f)(4) of the Rescissions Act provides that the district court has the authority to permanently enjoin, order modification of, or void an individual salvage sale "if it is determined by a review of the record that the decision to prepare, advertise, offer, award, or operate such sale was arbitrary and capricious or otherwise not in accordance with applicable law (other than those laws specified in subsection (i))."

Guided by this standard, we review de novo the district court's grant of summary judgment in favor of the Forest Service. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 134 L. Ed. 2d 209, 116 S. Ct. 1261 (1996). We must determine, viewing the evidence in the light most favorable to Southwest Center, whether the district court correctly applied the relevant substantive law. Id. In making this determination, we consider de novo the district court's interpretation of 2001. Spain v. Aetna Life Ins. Co., 11 F.3d 129, 131 (9th Cir. 1993), cert. denied, 128 L. Ed. 2d 340, 114 S. Ct. 1612 (1994); Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993).

We review the district court's decision to exclude extra-record evidence for an abuse of discretion. Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993).

Discussion

I. Adequacy of the Forest Service's Documentation

Section 2001(c) of the Rescissions Act calls for the preparation of a BE under the ESA and an EA under NEPA. For the Rustler Sale, the Forest Service completed a BA&E and then issued a categorical exclusion releasing the Forest Service from the obligation to prepare an EA under NEPA. Because the record supporting the Rustler Sale complies with the provisions of the ESA and NEPA incorporated into section 2001(c)(1)(A), we hold that the BA&E and the categorical exclusion issued by the Forest Service meet the demands of the Rescissions Act.

Southwest Center has not established that the...