Native Ecosystems Council v. U.S. Forest Service

• Decision Date: 11 August 2005
• Docket Number: No. 04-35375.,04-35375.
• Citation: 418 F.3d 953
• Parties: NATIVE ECOSYSTEMS COUNCIL; The Ecology Center, Inc., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF AGRICULTURE; Thomas Clifford, supervisor, Helena National Forest; Kathleen McAllister, Deputy Regional Forester for Region One U.S. Forest Service; Dale Bosworth, Chief of the United States Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

418 F.3d 953

NATIVE ECOSYSTEMS COUNCIL; The Ecology Center, Inc., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, AN AGENCY OF THE U.S. DEPARTMENT OF AGRICULTURE; Thomas Clifford, supervisor, Helena National Forest; Kathleen McAllister, Deputy Regional Forester for Region One U.S. Forest Service; Dale Bosworth, Chief of the United States Forest Service, Defendants-Appellees.

No. 04-35375.

United States Court of Appeals, Ninth Circuit.

Argued February 14, 2005.

Submitted and Filed August 11, 2005.

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Thomas J. Woodbury, Forest Defense, P.C., Missoula, MT, for the plaintiffs-appellants.

Todd S. Aagaard, Michael T. Gray, Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-02-00080-DWM.

Before B. FLETCHER, McKEOWN, and GOULD, Circuit Judges.

GOULD, Circuit Judge.

Native Ecosystems Council and The Ecology Center (collectively referred to as "NEC") appeal the district court's grant of summary judgment to the United States Forest Service ("Forest Service") on NEC's claims in connection with the Forest Service's approval of the North Elkhorns Vegetation Treatment Project ("Elkhorn project" or "proposed project"). The Elkhorn project is a "wildlife improvement project involving a timber sale" within the Helena National Forest and the Elkhorn Wildlife Management Unit ("Elkhorn Wildlife Unit"), the only Wildlife Management Unit in the National Forest System. NEC contends that the Forest Service's approval of the Elkhorn project was arbitrary and capricious, in violation of the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, because the project violates the "big game" standards of the Helena National Forest Plan ("HNF Plan"). NEC also argues that the Forest Service's approval of the Elkhorn project is arbitrary and capricious because the project will threaten the forest-wide viability of the Northern Goshawk. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.

I

The Helena National Forest comprises 975,088 acres of west-central Montana and includes a broad expanse of the Elkhorn Mountains. The Helena National Forest is managed in accord with the HNF Plan, adopted pursuant to NFMA in 1986.¹ Among other requirements, the HNF Plan contains standards relating to the security of big game species such as elk, including the requirement that each elk herd have at least thirty-five percent "hiding cover."² The HNF Plan's elk hiding cover standard is central to NEC's claims, and we examine it in detail in Section II.

The Elkhorn Mountains are also the home of the only designated Wildlife Management Unit in our National Forest System, the Elkhorn Wildlife Unit. In 1976, Congress directed the Forest Service to evaluate 77,346 acres of Helena and Deerlodge National Forests for designation as a Wilderness Area. Wilderness Act of 1976, Pub.L. No. 94-557, 90 Stat. 2633, 2637. Prompted by "the presence of valuable wildlife resources, and the predominance of public concern for wildlife values in the area," the Forest Service instead recommended the establishment of a special management unit with a management direction emphasizing wildlife. The subsequently created Elkhorn Wildlife Unit encompasses areas of both the Helena and Deerlodge National Forests in Montana, including the area of the proposed project. The Elkhorn Wildlife Unit has its own standards, with which any site-specific projects must comply and which have been incorporated into the HNF Plan. Relevant to this appeal, the Forest Service is only to consider "land management activities" in the Elkhorn Wildlife Unit when "they are compatible with management direction for wildlife." The Elkhorn Wildlife Unit is also generally "unsuitable for timber management, because the land is proposed for use that precludes timber harvest on the programmed basis."

In 1996, the Forest Service proposed an amendment to the Helena and Deerlodge National Forest Plans called the "Elkhorn Forest Plan Amendment," seeking to alter the direction of the Elkhorn Wildlife Unit from its wildlife emphasis to a more general "ecosystem management."³ The district court upheld a challenge by environmental groups, concluding that the Plan amendment was "significant" and that the Forest Service had violated NEPA by not preparing an Environmental Impact Statement ("EIS") for the proposed amendment.⁴ Am. Wildlands v. U.S. Forest Serv., No. CV 97-160-M-DWM, 1999 U.S. Dist. LEXIS 22243, at *22-*23 (D.Mont.1999). The Forest Service thereafter abandoned the Elkhorn Forest Plan Amendment. However, the Forest Service was not precluded by the district court's decision from pursuing future projects within the Elkhorn Wildlife Unit, so long as any proposed projects were consistent with the 1986 HNF Plan, NFMA, and NEPA.

The Forest Service proposed the Elkhorn project in 2000. After completing an Environmental Impact Statement ("EIS") and Record of Decision ("ROD") in 2001, the Forest Supervisor chose Alternative 2, the harvesting of 655 acres within a 755-acre area of forest in the northwest corner of the Elkhorn Wildlife Unit.⁵ Because the Elkhorn Wildlife Unit is classified under the HNF Plan as "unsuitable" for timber harvest, the Elkhorn project is not a "timber sale per se, it is a wildlife habitat improvement project that will involve a timber sale (commercial thinning) as the tool to achieve part of the desired condition." The Forest Supervisor concluded that such land can be logged under NFMA for the "purpose of meeting other objectives if the Forest Plan establishes that such actions are appropriate." (citing 36 C.F.R. § 219.27 (1999)). The project's stated purpose is to improve wildlife habitat through the "rejuvenat[ion]" of "the winter range forage base for species such as deer, elk, and moose," and the creation of "a sustainable forest structure that would eventually provide[more] suitable habitat" for other wildlife species. The proposed project would create a "broad swath of open forest (approximately 3 miles long and 1/4 to mile wide)," reconstruct a road, and construct a non-motorized loop trail.

The 2001 EIS concluded that the project complied with the HNF Plan's "Big Game" requirements. Specifically, the EIS concluded that the project would leave the affected elk herd, the Sheep Creek elk herd, with fifty-seven percent hiding cover, above the thirty-five percent hiding cover minimum required by the HNF Plan.⁶

After the Forest Service published the Elkhorn project EIS and ROD, NEC filed an administrative appeal, which was denied. NEC then filed suit in the United States District Court for the District of Montana, arguing that the Forest Service's approval of the Elkhorn project violated NEPA, NFMA, and the APA.

The parties filed cross-motions for summary judgment. The district court granted the Forest Service's motion, concluding that the agency's analysis of the proposed project's impacts was sufficient to meet the requirements of NFMA and NEPA as well as the requirements of the HNF Plan. The district court noted that the Forest Service had altered the acreage denominator of its elk hiding cover analysis from previous hiding cover analyses, which had concluded that the Sheep Creek elk herd was generally below the hiding cover minimum as calculated over the herd's entire range. The Forest Service's change to the 2001 calculation methodology consequently boosted the percentage of cover present after the project to within the range allowable under the HNF Plan. The district court called the Forest Service's change "convenient, or even suspicious," but concluded that "its appropriateness is not something this court can determine." This timely appeal followed.

II

NEC argues that the Elkhorn project does not comply with the HNF Plan's "big game" hiding cover requirements and therefore does not comply with NFMA. See 16 U.S.C. § 1604(i). NEC also argues that the Elkhorn project EIS is deficient under NEPA because it used an incorrect hiding cover calculation to reach the conclusion that the project complied with the HNF Plan.

A

We review de novo a grant of summary judgment. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep't of Navy, 383 F.3d 1082, 1086 (9th Cir.2004). Our review of agency decision-making under NFMA is governed by the judicial review provisions of the APA because NFMA does not contain an express provision for judicial review. 5 U.S.C. § 706(2)(A); Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059, 1065 (9th Cir.2004). Under the APA, we may set aside agency action only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc). Although the arbitrary and capricious standard is a "narrow one," we are required to "engage in a substantial inquiry[,] ... a thorough, probing, in-depth review." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). To have not acted in an arbitrary and capricious manner, the agency must present a "rational connection between the facts found and the conclusions made." Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 F.3d 1163, 1170 (9th Cir.2004).

Agencies are entitled to deference to their interpretation of their own regulations, including Forest Plans. Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097, 1099 (9th Cir.2003); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1154 (9th Cir.1998). However, an agency's interpretation "does...