Oregon Natural Resources Council v. Lowe

• Decision Date: 12 March 1997
• Docket Number: No. 93-36025,93-36025
• Citation: 109 F.3d 521
• Parties: , 27 Envtl. L. Rep. 20,732, 97 Cal. Daily Op. Serv. 1826, 97 Daily Journal D.A.R. 3433 OREGON NATURAL RESOURCES COUNCIL; Forest Conservation Council; Concerned Friends of the Winema; National Wildlife Federation; Portland Audubon Society; the Wilderness Society; Natural Resources Defense Council, Plaintiffs-Appellants, v. John LOWE, Regional Forester U.S. Forest Service; Bob Casteneda; U.S. Department of Agriculture, Defendants-Appellees, Thomas Lumber Co., Oregon Corporation, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 521

109 F.3d 521

44 ERC 1364, 27 Envtl. L. Rep. 20,732,

97 Cal. Daily Op. Serv. 1826,

97 Daily Journal D.A.R. 3433

OREGON NATURAL RESOURCES COUNCIL; Forest Conservation

Council; Concerned Friends of the Winema; National

Wildlife Federation; Portland Audubon Society; the

Wilderness Society; Natural Resources Defense Council, Plaintiffs-Appellants, v. John LOWE, Regional Forester U.S. Forest Service; Bob

Casteneda; U.S. Department of Agriculture,

Defendants-Appellees,

Thomas Lumber Co., Oregon Corporation, Defendant-Intervenor-Appellee.

No. 93-36025.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 18, 1995.

Decided March 12, 1997.

David B. Edelson, Natural Resources Defense Counsel, San Francisco, California, for plaintiffs-appellants.

Robert L. Klarquist, United States Department of Justice, Environment & Natural Resources Division, Washington D.C., for defendant-appellee.

Scott W. Horngren, Haglund & Kirtley, Portland, Oregon, for defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Oregon, Donald C. Ashmanskas, United States Magistrate Judge, Presiding. D.C. No. CV-92-1121-DCA.

Before: WALLACE, D.W. NELSON and BRUNETTI, Circuit Judges.

By Per Curiam Opinion; Dissent by Judge D.W. NELSON.

PER CURIAM:

OVERVIEW

Appellants Oregon Natural Resources Council ("ONRC") and other environmental groups filed this action against the United States Forest Service, alleging that the Forest Service failed to comply with the National Forest Management Act ("NFMA") and the National Environmental Policy Act ("NEPA") in developing and amending the Winema National Forest Land and Resource Management Plan ("LRMP" or "Forest Plan"). The ONRC contends that: 1) the Forest Plan fails to insure the viability of sensitive wildlife species; 2) in developing the Forest Plan, the Forest Service relied on an outdated forest inventory and failed to respond to contrary scientific opinion; 3) the Forest Service should have prepared a supplemental Environmental Impact Statement ("EIS") to assess the environmental implications of an old growth inventory that was completed after the LRMP was adopted; and 4) the Forest Service should have prepared an EIS when the LRMP was amended. The district court granted summary judgment in favor of the defendants. We affirm the district court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

In this suit, the ONRC challenges two Forest Service planning decisions relating to the management of old growth forests on the Winema National Forest, located in south-central Oregon. It challenges the Winema LRMP and Amendment 3 to that plan. Both the LRMP and Amendment 3 were developed pursuant to section 6(a) of the NFMA, which directs the Secretary of the Forest Service to develop, maintain, and revise resource plans for units of the National Forest Service. 16 U.S.C. § 1604(a).

In addition, the NFMA directs the Secretary to issue regulations for the development and revision of forest plans. 16 U.S.C. § 1604(g). These regulations are codified at 36 C.F.R. Part 219. Among the requirements they impose is that "wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 36 C.F.R. § 219.19. This section further specifies that "habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area." Id. In order to accomplish these goals, forest plans must designate certain management indicator species ("MIS") whose "population changes are believed to indicate the effects of management activities." 36 C.F.R. § 219.19(a)(1).

In carrying out the planning process, the Forest Service is also required to abide by certain procedural requirements imposed by the NEPA. One of these is the requirement that an EIS be prepared for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Under 36 C.F.R. § 219.10(b), this includes LRMPs, for which both a draft and final EIS must be prepared. These are to be based on "the best available data," which "may require that special inventories or studies be prepared." 36 C.F.R. § 219.12(d).

The draft EIS ("DEIS") is to be issued along with a proposed forest plan and is to include "a broad range of reasonable alternatives," 36 C.F.R. § 219.12(f), along with their likely physical, biological, economic and social impacts, 36 C.F.R. § 219.12(g), and is to The Winema proposed Forest Plan and DEIS were published in December 1987 for a 100-day public review and comment period. On the basis of comments received regarding the DEIS and proposed plan, the Forest Service issued a final Forest Plan and an FEIS in 1990. The Winema Forest Plan breaks the forest into a number of Management Areas ("MAs"), which are characterized by different types of forest and objectives for use. One of these, MA7, is devoted to the provision and maintenance of old growth forest and old growth associated species. The Forest Service designated five MIS associated with old growth forest, which were to be managed so as to ensure general species viability in MA7: the pileated woodpecker, northern goshawk, three-toed woodpecker, pine marten, and northern spotted owl. With the exception of the goshawk, these MIS and the habitat protection guidelines established for them in the LRMP were drawn from the Forest Service's Regional Guide for the Pacific Northwest ("Regional Guide"), published in 1986. The Regional Guide recommended certain MIS for old growth and set minimum management requirements ("MMR") specifying the amount of habitat these MIS required to survive.

designate a preferred alternative. 36 C.F.R. § 219.12(i). The DEIS and proposed forest plan must be made available for public comment for a period of at least three months. 36 C.F.R. § 219.10(b). On the basis of the public's response, a final EIS ("FEIS") is prepared. The Regional Forester then reviews the FEIS and the plan and, if he decides to adopt the plan, does so in a public Record of Decision ("ROD"). 36 C.F.R. § 219.10(c).

The Forest Service used a grid pattern to map the location of MA7 in the Forest, relying on information from a 1981 timber inventory. However, the Forest Service conceded that at the time the plan was drawn up it did not know where old growth stands were actually located. Environmental Assessment for Amendment 3, at 3. The Forest Service explained in the FEIS that:

[t]he precise location of the [old growth] stands that are allocated is not determined at this time, but will be determined as part of implementation. An inventory of existing old growth will be completed by October 1, 1990. Currently the old growth stands are selected on a site specific basis in project planning to most nearly approximate the location of the grid proposed in the Forest Plan.

FEIS Appendix K, at K-292. Thus, the Forest Service did not address in the LRMP or the FEIS the "distribution of habitat across the Forest or the size of the habitat units." FEIS: 2-102. Rather, it specified the quantity of old growth to be preserved under the plan.

In September 1990, the Regional Forester issued a ROD adopting the LRMP. The ROD called for the protection of a total of 60,192 acres of old growth, which was approximately the same amount of old growth as was to be protected under the proposed plan. This area included habitat to meet the wildlife MMRs plus 24,400 additional acres allocated to old growth management. The ROD explained that once the results of the old growth inventory were available, they would be used "to locate Management Area 7 ... on the ground." At that point, it stated, issues related to the forest-wide configuration of old growth would be considered, including "distributional needs" and "minimizing fragmentation of existing habitat."

The old growth inventory was completed in 1990. It revealed that the forest contained 133,300 acres of old growth. Environmental Assessment for Amendment 3. A scientist who was involved in conducting the inventory explained that "the new inventory information [could] now be compared to the grid pattern, and final MMR sites [could] be selected to overlap with inventoried old growth stands." However, he stated that of the 178 MA7 sites originally delineated on the Forest map (on the basis of the 1981 Timber Inventory), only 34 were found to actually contain inventoried old growth. Therefore, "[i]f the purpose of the MA7 network is to protect old growth ecosystems, .... the entire distribution plan may have to be revised, since the original grid pattern proposed by the [F]orest [P]lan, for the most part, cannot be fit with nearby old growth stands." The Forest Service did not complete a supplemental EIS In Amendment 3 to the LRMP, the Forest Service identified 24,452 acres of actual ponderosa pine and pine associated old growth stands based on the 1990 old growth inventory in order to "complete the location of Management Area 7." Decision Notice and Finding of No Significant Impact. This was the first time the Forest Service had selected specific old growth stands for protection (although it had selected MA7 sites based on the assumption that they might contain actual old growth stands). The Forest Service did not complete a supplemental EIS to consider the possible effects associated with its selection of the particular stands that it designated as MA7. Instead, it issued a Finding of No Significant Impact and a less rigorous Environmental Assessment (EA). The Forest Service did not discuss the implications of the inventory results for the original MA7 sites in Amendment 3 or the EA for Amendment 3.

addressing the fact that the majority of MA7 sites did not contain old growth while many old growth...