Utah Environmental Congress v. Richmond

• Citation: 483 F.3d 1127
• Decision Date: 30 April 2007
• Docket Number: No. 06-4059.,06-4059.
• Parties: UTAH ENVIRONMENTAL CONGRESS, a Utah nonprofit corporation; High Uintas Preservation Council, a Utah nonprofit corporation, Plaintiffs-Appellants, v. Eileen RICHMOND, in her official capacity as Acting Forest Supervisor of the Ashley National Forest; Dale Bosworth, as Chief of the Forest Service; United States Forest Service, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

483 F.3d 1127

UTAH ENVIRONMENTAL CONGRESS, a Utah nonprofit corporation; High Uintas Preservation Council, a Utah nonprofit corporation, Plaintiffs-Appellants, v. Eileen RICHMOND, in her official capacity as Acting Forest Supervisor of the Ashley National Forest; Dale Bosworth, as Chief of the Forest Service; United States Forest Service, Defendants-Appellees.

No. 06-4059.

United States Court of Appeals, Tenth Circuit.

April 30, 2007.

Sarah Tal, Salt Lake City, UT, for Plaintiffs-Appellants.

Mark R. Haag, (Todd S. Aagaard, and Sue Ellen Woolridge, Assistant Attorney General, Environment & Natural Resources Division, Department of Justice, Washington, D.C., and Elise Foster, Of Counsel, Office of the General Counsel, United States Department of Agriculture, Ogden, UT, on the brief), for Defendants-Appellees.

Before, KELLY, EBEL, Circuit Judges and, MURGUIA^*, District Judge.

PAUL KELLY, JR., Circuit Judge.

Plaintiff-Appellant Utah Environmental Congress filed suit in federal district court challenging the Forest Service's approval of the Trout Slope West Timber Sale project in the Ashley National Forest. UEC brought its suit pursuant to § 706 of the Administrative Procedure Act, arguing that the Forest Service's approval of the project was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Specifically, UEC argued that the Forest Service failed to adequately monitor the Colorado River Cutthroat Trout (a management indicator species), that it improperly assessed the project's impact on old-growth trees and that it failed to comply with old-growth standards, that it failed to maintain water quality standards, and that it failed to assess the cumulative effects of the project on the Colorado River Cutthroat Trout and water quality.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons stated below, we affirm in part, reverse in part, and remand.

Background

The Ashley National Forest consists of 1,384,132 acres of land in northeastern Utah and Wyoming. The Trout Slope West project ("the project") area comprises 18,500 acres of land in the Vernal Ranger District of the Ashley National Forest in Utah. The project area includes portions of three watersheds and is covered with pine, spruce, fir, and aspen trees. As a result of a 1980s beetle infestation, a significant number of trees in the project area are dead or fallen. The project was designed to clear out these dead or fallen trees, recover their economic value, and improve habitat within the project area. The project includes a number of mitigation measures to protect the watersheds from increased run-off and erosion resulting from the trees' removal.

The Forest Service began planning the project in 1998. In February 2004, it issued a draft Environmental Impact Statement ("EIS") and sought public comment. At the same time, it issued a Biological Evaluation and Biological Assessment addressing the project's expected impact on sensitive, threatened, and endangered species. The assessment concluded that the project's impact on Colorado River Cutthroat Trout¹ ("CRCT") would be minimal. After reviewing public comments, the Forest Service issued a Record of Decision ("ROD") and approved the project on July 1, 2004.

The ROD discussed the project's expected impact on water quality, stream channels, fisheries, and other aquatic resources. It concluded that the project's adverse effects would be adequately mitigated by requiring that no trees be removed within 300 feet of any fish-bearing stream, or within 150 feet of any other stream, pond, lake, reservoir, or wetland. The ROD also concluded that the project was consistent with the Ashley National Forest Plan ("forest plan") standards for old-growth trees and that it would not have a significant impact on the amount of old-growth trees in the forest.

Utah Environmental Congress ("UEC") challenged the approval of the project through administrative review. Those appeals were denied. UEC then filed its complaint in the district court under § 706 of the APA, alleging that the Forest Service's approval of the project violated the National Forest Management Act ("NFMA") and its implementing regulations, the National Environmental Policy Act ("NEPA"), the forest plan, the Forest Service Manual, and Department of Agriculture Regulations. The district court affirmed the Forest Service's approval of the project.

Discussion

I. The Federal Regulatory Framework

A. National Forest Management Act

The Forest Service is an agency within the Department of Agriculture. It manages the National Forest System under a multitude of federal statutes and regulations. Among those statutes is the NFMA, which is primarily concerned with planning. It directs the Forest Service to develop a land and resource management plan for each unit of national forest. See 16 U.S.C. § 1604(a),(e).

There are two levels of planning under the NFMA: program planning and project planning. See Ohio Forestry Assn. v. Sierra Club, 523 U.S. 726, 729-30, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998); Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir.2006). Program planning refers to the Forest Service's creation of general, forest-wide planning goals set out in a forest plan. See Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 737 (10th Cir.2006) [hereinafter UEC III].² Because the Forest Service must account for a variety of interests, each forest plan contemplates that the forest will be used for multiple purposes, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." Id. (citing 16 U.S.C. § 1604(e)(1)). Project planning refers to the Forest Service's approval or disapproval of specific projects that implement (and consequently must comply with) the forest plan. Id. (citing 16 U.S.C. § 1604(i)).

The Secretary of Agriculture has promulgated a number of regulations that set forth the procedures for planning under the NFMA. The first set of regulations relevant to this case was implemented in 1982 (36 C.F.R. Part 219). See 47 Fed. Reg. 43026-01 (Sept. 20, 1982), and included provisions directing the Forest Service as part of its planning process, to identify and monitor management indicator species.³ The regulations required the Forest Service to collect population trend data for management indicator species. 36 C.F.R. §§ 219.19, 27 (1983). They also directed that "[f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species. . . ." Id. § 219.19. The 1982 regulations were superceded in November 2000 with new, substantially revised regulations. See 65 Fed.Reg. 67,514 (Nov. 9, 2000), codified at 36 C.F.R. Part 219 (2001). The 2000 regulations included several transition provisions specifying when the substantive planning provisions of the new regulations would become effective. Those transition provisions also set transition planning standards to govern forest plan amendments and site-specific project decisions during the transition period. UEC III, 443 F.3d at 746.

For forest plan revisions and amendments adopted during the transition period, agency officials could elect to use the substantive planning standards of either the 1982 regulations or the 2000 regulations. See 36 C.F.R. § 219.35(b) (2001). For site-specific project decisions made during the transition period, however, the transition rules directed that agency officials "consider the best available science in implementing and, if appropriate, amending the current plan." Id. § 219.35(a), (d).⁴ The transition period for site-specific project decisions was set to expire on November 9, 2003, bringing other substantive provisions of the 2000 regulations into effect. See id. § 219.35(d). However, that transition period was extended for site-specific projects by an Interim Final Rule issued on September 10, 2003. 68 Fed. Reg. 53294, 53294-96 (2003). That Interim Final Rule extended the transition period for site-specific projects until January 5, 2005 when the Department of Agriculture replaced the 2000 regulations with a new final rule. Id. at 53295; see also 70 Fed.Reg. 1022, 1022-23 (Jan. 5, 2005). Thus, site-specific project decisions made from November 9, 2000 to January 5, 2005, that implemented pre-November 9, 2000 forest plans, were to be made only under the "best available science" standard. See 69 Fed.Reg. 58055, 58056 (Sept. 29, 2004). "[N]either the remainder of the 2000 planning regulations nor any of the 1982 regulations were binding on site-specific decisions during this period." Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1191 (10th Cir.2006).

B. The Ashley National Forest Plan

The forest plan was adopted in 1986 and is intended to "guide all natural resource management activities and establish management standards and guidelines for the Ashley National Forest." II Aplt.App. at 348. The plan designates twelve management indicator species for the Ashley National Forest, one of which is the CRCT. Id. at 553-54. The forest plan includes a provision directing the forest service to:

Complete [an] inventory of Management Indicator Species on the Forest to determine their occurrence, abundance, distribution, habitat requirements, and populations trends.

Id. at 419.

With respect to CRCT, the forest plan gives specific directives for how the species should be monitored. It directs that CRCT be monitored using population estimates and that such estimates be conducted and reported every five years. Id. at 549, 553. The plan states that further evaluation of CRCT populations will be necessary, or a change in management direction could occur, if there is a 20% reduction in population or if the "biotic condition index"⁵ drops below 75. Id. at 553.

The forest plan...