Utah Environmental Congress v. Russell, 05-4286.

• Decision Date: 11 March 2008
• Docket Number: No. 05-4286.,05-4286.
• Parties: UTAH ENVIRONMENTAL CONGRESS, a Utah nonprofit corporation, Plaintiff-Appellant, v. Robert A. RUSSELL, as Supervisor of the Dixie National Forest; Dale Bosworth, as Chief of the Forest Service; United States Forest Service, Defendants-Appellees. State of Utah, by and through its Division of Forestry, Fire and State Lands, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

518 F.3d 817

UTAH ENVIRONMENTAL CONGRESS, a Utah nonprofit corporation, Plaintiff-Appellant, v. Robert A. RUSSELL, as Supervisor of the Dixie National Forest; Dale Bosworth, as Chief of the Forest Service; United States Forest Service, Defendants-Appellees.

State of Utah, by and through its Division of Forestry, Fire and State Lands, Amicus Curiae.

No. 05-4286.

United States Court of Appeals, Tenth Circuit.

March 11, 2008.

Sarah Tal, Salt Lake City, UT (Joel Ban, Salt Lake City, UT, on the opening brief), for Plaintiff-Appellant.

Mark R. Haag, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C. (Sue Ellen Wooldridge, Assistant Attorney General, and Lisa E. Jones, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, D.C.; and Elise Foster, Office of General Counsel, United States Department of Agriculture, Ogden, UT, with him on the brief), for Defendants-Appellees.

Before HARTZ, SEYMOUR, and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

In August, 2004, the Forest Service approved the Barney Top Resource Management Project (Project), a timber harvesting and prescribed burning project in Utah's Dixie National Forest, pursuant to the Dixie National Forest Land and Resource Management Plan (Plan). After an unsuccessful administrative appeal to the United States Department of Agriculture, the Utah Environmental Congress (UEC) brought this action in district court alleging that defendants, the United States Forest Service (Forest Service) and its representatives, approved the Project in violation of federal law. The district court entered judgment in favor of the defendants and UEC appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I BACKGROUND

A. Statutory Framework

1. National Environmental Policy Act

The National Environmental Policy Act (NEPA) mandates that federal agencies, like the Forest Service, assess potential environmental consequences of a proposed action. Utah Envt'l Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir. 2006) (UEC III). NEPA dictates the process by which federal agencies must examine environmental impacts, but does not impose substantive limits on agency conduct. Fuel Safe Wash. v. Fed. Energy Regulatory Comm'n, 389 F.3d 1313, 1323 (10th Cir.2004). To satisfy NEPA's process requirement, "the Forest Service must prepare one of the following: (1) an environmental impact statement (EIS), (2) an environmental assessment (EA), or (3) a categorical exclusion." UEC III, 443 F.3d at 736. If an agency is uncertain whether a proposed action will significantly affect the environment, it may first prepare an EA, a "concise public document" that "[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare" a more detailed EIS. 40 C.F.R. § 1508.9. If, pursuant to that EA, the agency determines that a more detailed EIS is not required, "it must issue a `finding of no significant impact' (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment. See §§ 1501.4(e), 1508.13." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757-58, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). Notably, an agency need not prepare either an EA or an EIS for actions falling within a "categorical exclusion." 40 C.F.R. § 1508.4. Categorically excluded are "those actions predetermined not to `individually or cumulatively have a significant effect on the human environment.' § 1508.4." See UEC III, 443 F.3d at 736.

2. The National Forest Management Act (NFMA)

The National Forest Management Act of 1976 (NFMA) requires that the Forest Service develop a land and resource management plan, commonly known as a forest plan, for each unit of national forest. UEC III, 443 F.3d at 736; 16 U.S.C. § 1604(a), (e), (g)(3)(B). Each forest plan accounts for various interests and uses, including "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness," and "provides for `diversity of plant and animal communities based on the suitability and capability of the specific land area.'" UEC III, 443 F.3d at 737 (quoting 16 U.S.C. § 1604(g)(3)(B) and (e)(1)). The Forest Service must adhere to the forest plan when "approving or disapproving particular projects, each of which must comply with the applicable forest plan." Utah Envt'l Cong. v. Troyer, 479 F.3d 1269, 1272 (10th Cir.2007) (UEC IV) (quoting UEC III, 443 F.3d at 737) (quotation marks omitted). Thus, the NFMA requires the Forest Service to develop broad directives for management of a given forest and to consider individual projects within the context of this forestwide management plan. Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 785 (10th Cir.2006).

Additionally, "[t]he Secretary of Agriculture has promulgated a number of regulations that set forth the procedures for planning under the NFMA. The first set of regulations ... was implemented in 1982." Utah Envt'l Cong. v. Richmond, 483 F.3d 1127, 1131 (10th Cir.2007) (citation omitted) (UEC V). "The 1982 forest planning regulations ... were superseded in November 2000, when new regulations were promulgated." Ecology Ctr. Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1190 (10th Cir.2006). However, "[t]he 2000 planning rules were not immediately promulgated. Instead, the new regulations contained transition provisions which provided that, beginning on November 9, 2000, until the promulgation of the new, final rule, the Forest Service should consider `the best available science in implementing a forest plan.'" UEC III, 443 F.3d at 737 (footnote and citation omitted). Accordingly, we have since held that "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." UEC V, 483 F.3d at 1132.

B. Dixie National Forest Plan

The Barney Top Project is located in the two million acre Dixie National Forest in Southern Utah. The Dixie National Forest Land and Resource Management Plan, adopted in 1986, guides management activities in the Dixie National Forest. The Plan established management objectives for preserving forests of different age classes and for maintaining the goshawk population. The Plan provides a "general direction" to "[p]lan timber harvest on a drainage by drainage basis."¹ Aplt. App., vol. 1 at 141. Specifically, the Plan states that a "portion of [trees in] each drainage should be in each age class, [s]even to ten percent should be managed as old growth, ... [and t]he remainder should be more or less evenly distributed in the other ageclasses."² Id. The Plan also sets at 40 pairs the "minimum viable population" for the goshawk, a species of hawk considered a "management indicator species" that is dependent on old growth trees for its habitat. Pursuant to the Plan, the goshawk population is to be monitored "annual[ly] if [the goshawk] population is near minimum level, or every 2-5 years in project areas," or whenever a "10% total declining goshawk population size over a 3 year period" presents a "variation which would cause further evaluation and/or change in management direction." Id. at 142.

In response to declining goshawk populations, the Forest Service amended the Plan in March of 2000 to include the Utah Northern Goshawk Conservation Strategy (the Conservation Strategy). The Conservation Strategy is a product of the cooperative effort of the Utah National Forests, the Bureau of Land Management, the United States Fish and Wildlife Service, and the Utah Division of Wildlife Resources to manage goshawk habitat in accordance with the recommendations found in the two leading scientific studies on the subject: "Management Recommendations for the Northern Goshawk in the Southwestern United States" (the Reynolds Report) and "Habitat Assessment and Management Recommendations for the Northern Goshawk in the State of Utah" (the Graham Report). See Aple. Supp. App. at 7-10, 48. This amendment to the Plan is sometimes referred to as the Goshawk Amendment.

C. Barney Top Resource Management Project

The Forest Service designed the Project to suppress the spread of destructive spruce beetles among spruce and fir trees and to improve the distribution of age classes among spruce, fir, and aspens over a four- to six-year period. The Project encompasses a 3,585 acre area of forest land situated on the Barney Top and Table Cliff plateaus and provides for the treatment of 643 acres of Engleman spruce/sub-alpine fir and seventy-three acres of aspen forest. Specifically, the Project calls for 453 acres of conifer thinning, ninety-one acres of pre-commercial thinning, 118 acres of conifer sanitation/salvage harvesting, five acres of meadow restoration, and seventy-three acres of aspen harvesting and prescribed burning. The Forest Service contends the treatment will reduce current tree mortality from spruce beetles in the spruce/fir forest by creating stand conditions that do not promote spruce beetles or disease. The Project's Environmental Assessment (EA) asserts the treatments will also maintain the presence of aspens by rectifying "an imbalance in aspen age classes" that has facilitated conifer succession. Aplt. App., vol. 6 at 2374.

The Project includes a number of secondary actions designed to enable completion of its primary objectives. The EA calls for the reconstruction of 1.70 miles of existing road, the addition of 1.92 miles of presently unclassified road to the classified road system, the closure of 1.87 miles of road to motorized vehicle used by the public, the use of Forest Road 132 as a "haul route," id. at 2383, and application of magnesium chloride "as needed for dust abatement for approximately five miles of [Forest Road] 132." Id. at 2387. Additionally, the Project requires "control lines" to prevent the spread of the prescribed burn beyond the targeted...