Environmental Protection v. U.S. Forest Service

• Decision Date: 23 June 2006
• Docket Number: No. 04-15931.,04-15931.
• Citation: 451 F.3d 1005
• Parties: ENVIRONMENTAL PROTECTION INFORMATION CENTER, a California nonprofit corporation; Klamath Forest Alliance, a California nonprofit corporation; Klamath-Siskiyou Wildlands Center, an Oregon nonprofit corporation, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1005

451 F.3d 1005

ENVIRONMENTAL PROTECTION INFORMATION CENTER, a California nonprofit corporation; Klamath Forest Alliance, a California nonprofit corporation; Klamath-Siskiyou Wildlands Center, an Oregon nonprofit corporation, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.

No. 04-15931.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2006.

Filed June 23, 2006.

COPYRIGHT MATERIAL OMITTED

Marianne Dugan (argued), Facaros & Dugan, Eugene, OR, for the appellants.

Lisa Jones (argued) and M. Alice Thurston, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the appellee.

Andrew T. Lloyd, Pacific Legal Foundation, Sacramento, CA, for Amici Curiae Rural Resources Alliance, Klamath Alliance for Resources and Environment, and Pacific Legal Foundation.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding. D.C. No. CV-03-00938-GEB.

Before: J. CLIFFORD WALLACE, HAWKINS, and SIDNEY R. THOMAS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge.

The Environmental Protection Information Center ("EPIC") appeals from the district court's summary judgment in favor of the United States Forest Service ("USFS"). EPIC challenges USFS's failure to prepare an Environmental Impact Statement ("EIS") in connection with the proposed Knob Timber Sale in the Klamath National Forest and further argues that the Environmental Assessment ("EA") USFS did prepare was inadequate. EPIC also contends that the project violates the National Forest Management Act ("NFMA"). We affirm.

FACTS AND PROCEDURAL HISTORY

The Knob Timber Sale (the "Project") is a vegetation management project affecting the Salmon River Ranger District of the Klamath National Forest. The Project provides for harvesting timber from approximately 578 acres, scattered among twenty-seven units throughout the forest. The stated purpose of the Project "is to maintain stand health by leading stands into a resilient condition where they can provide a sustained yield of wood products and reduce their risk to potential catastrophic fire."

USFS issued an EA for the Project in October 2002.¹ In preparing the EA, USFS relied on a number of documents, reports and studies, including biological assessments prepared by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service ("FWS") in formal consultations required by Section 7 of the Endangered Species Act ("ESA"). The final EA identified and discussed in detail two key issues: (1) the Project's effect on the "critical habitat" of the northern spotted owl and (2) watershed effects, in which timber harvest, fuel reduction and road activities could potentially cause soil erosion or trigger slope failure, increasing sediment in streams.

Soon thereafter, USFS issued a decision notice and Finding of No Significant Impact ("FONSI") selecting the proposed action alternative. USFS explained that this alternative had the best potential to achieve the Project's purposes and that it would have long-term beneficial effects for the northern spotted owl and watershed health, with only minor or negligible short-term adverse effects.

EPIC filed suit in the district court, arguing that, under the National Environmental Policy Act ("NEPA"), USFS should have prepared a full EIS instead of an EA, and that the EA itself was inadequate. EPIC also alleged that USFS violated the NFMA. The district court granted summary judgment to USFS on all claims.

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Native Ecosystems Council v. USFS, 428 F.3d 1233, 1238 (9th Cir.2005). Agency decisions that allegedly violate NEPA and NFMA are reviewed under the Administrative Procedure Act ("APA"), and may be set aside only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. (quoting 5 U.S.C. § 706(2)(A)).

In reviewing an agency's decision not to prepare an EIS under NEPA, we employ an arbitrary and capricious standard that requires us to determine whether the agency has taken a "hard look" at the consequences of its actions, "based [its decision] on a consideration of the relevant factors," and provided a "convincing statement of reasons to explain why a project's impacts are insignificant."

Nat'l Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 730 (9th Cir.2001) (internal quotations and citations omitted).

DISCUSSION

I. NEPA Claims

A. Statutory Background

An EIS is required for "major Federal actions significantly affecting the quality of the human environment. . . ." 42 U.S.C. § 4332(2)(C). The agency first prepares an EA to determine whether an action will have a significant impact, thus requiring preparation of an EIS. 40 C.F.R. § 1508.9. If the agency concludes there is no significant effect associated with the proposed project, it may issue a FONSI in lieu of preparing an EIS. 40 C.F.R. § 1508.9(a)(1).

The critical term here is "significantly." Whether a project is "significant" depends on the project's "context" and its "intensity." 40 C.F.R. § 1508.27. Context refers to the scope of the action, while intensity refers to the severity of the impact. Id. The regulations include a list of ten intensity factors, four of which EPIC argues are applicable in this case:²

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. . . .

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

Id. at § 1508.27(b).

EPIC also asserts that even if an EIS is not required, the EA itself is inadequate and should be supplemented, citing many of the same reasons pertaining to its EIS arguments. We address these contentions together where appropriate.

B. Harm to the Northern Spotted Owl and its Critical Habitat

One of EPIC's primary arguments is that the Project will harm the northern spotted owl, a threatened species, and its habitat that has been designated "critical habitat" under the ESA. To resolve EPIC's contentions, it is useful to examine the backdrop of the debate and the specific Project parameters.

After significant debate and litigation, the northern spotted owl was listed as a threatened species under the ESA in 1990. 55 Fed.Reg. 26114 (June 26, 1990). In 1992, FWS delineated the "critical habitat" for the spotted owl. 57 Fed.Reg. 1796 (January 15, 1992). Critical habitat consists of those areas which have "physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection." 16 U.S.C. § 1532(5)(A).

Debate and litigation continued, however, and ultimately the government adopted the Northwest Forest Plan ("NFP"), which provided "a comprehensive forest management plan for the entire range of the spotted owl . . . ." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1063 (9th Cir.2004). The NFP withdrew 8.8 million acres from potential timber harvesting, and designated approximately 7.4 million acres of forest land as "late successional reserves" ("LSRs").³ LSRs overlap with about 70% of the owl's previously-defined critical habitat and are also generally off-limits to timber harvest, although thinning, salvage, and research activities are permitted under certain conditions. The remaining approximately 5.5 million acres were designated "matrix" lands or "adaptive management areas," and are potentially available for timber production, subject to standards in the NFP. Id. at 1064.

The Project involves logging on 578 acres scattered throughout the Klamath National Forest. Of this, 125 acres has been designated as "critical habitat" for the spotted owl. All of this critical habitat is outside the LSR and is thus in the "matrix" where timber production is permitted. However, within this 125 acres, only fourteen acres of nesting habitat would actually be removed (five acres from one unit and nine from another). In the third critical habitat unit, fifty-one acres of "high" quality nesting habitat would be degraded to "moderate" quality. The remaining sixty acres within the three critical habitat units is not considered suitable for nesting and roosting but is suitable for dispersal; according to the USFS EA and the FWS Biological Opinion ("BiOp"), all of the habitat units will maintain this dispersal function post-harvest.

1. Harm to the Species

Against this backdrop, EPIC alleges that a full EIS should have been performed or, alternatively, that the analysis of the issue in the EA is inadequate. The Project, EPIC asserts, is likely to affect the northern spotted owl and its critical habitat significantly. EPIC points to portions of the FWS BiOp in which the BiOp notes that "three nest sites could be destroyed" and that the logging will remove "most, if not all, of the small amount of existing nesting habitat" within the critical habitat units.

These statements, however, must be read in context. For example, although the logging will remove existing nesting habitat from two critical habitat units, this amounts to a total of only fourteen acres. Similarly, the Project does not authorize the destruction of any existing nest sites, and surveys and seasonal restrictions operate to protect potentially occupied nest sites. The projected take of three nests or pairs of owls is based on extrapolations from nesting data, and FWS determined that this level of anticipated...