Ecology Center v. Castaneda

• Citation: 574 F.3d 652
• Decision Date: 17 April 2009
• Docket Number: No. 07-35054.,07-35054.
• Parties: The ECOLOGY CENTER, Plaintiff, and Wildwest Institute, Plaintiff-Appellant, v. Bob CASTANEDA, in his official capacity as Forest Supervisor for the Kootenai National Forest; Abigail Kimball, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants-Appellees, and F.H. Stoltze Land & Lumber Co.; Fousts Inc.; Regehr Logging Inc.; Ponderay Valley Fibre Inc.; Lincoln County, Defendant-Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

574 F.3d 652

The ECOLOGY CENTER, Plaintiff, and Wildwest Institute, Plaintiff-Appellant, v. Bob CASTANEDA, in his official capacity as Forest Supervisor for the Kootenai National Forest; Abigail Kimball, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants-Appellees, and F.H. Stoltze Land & Lumber Co.; Fousts Inc.; Regehr Logging Inc.; Ponderay Valley Fibre Inc.; Lincoln County, Defendant-Intervenors.

No. 07-35054.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 20, 2009.

Filed April 17, 2009.

Amended July 22, 2009.

Thomas J. Woodbury, Missoula, MT, for the appellant.

John T. Stahr (briefed), and Charles R. Scott (argued), U.S. Department of Justice Environment and Natural Resources Division, Washington, D.C., for the appellees.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, Chief District Judge, Presiding. D.C. No. CV-06-00024-DWM.

Before THOMAS M. REAVLEY,^* Senior Circuit Judge, RICHARD C. TALLMAN and MILAN D. SMITH, JR., Circuit Judges.

ORDER

The opinion filed on April 17, 2009, is amended as follows:

The second paragraph of subsection Population Viability>, appearing at slip op. pages 4450-51, beginning and ending is DELETED and REPLACED with the following:

WildWest first claims the minimum viable population for the pileated woodpecker in the KNF is 554 breeding pairs, which represents forty percent of the 1384 pairs the KNF was historically able to support. However, as WildWest notes in its brief, the KNF was historically able to support a range of 335 to 1384 pairs. WildWest does not explain why the standard must be forty percent of the range's upper limit. The Forest Service calculated the viability threshold as a range of 335 to 554 breeding pairs, based on historical data. The lower bound of 335 pairs is reasonable. The potential population was at some time reduced to 335 pairs due to natural disturbances. From that nadir, the estimated population has since grown larger. Therefore, the population was necessarily viable at 335 pairs. The upper bound of 554 pairs represents forty percent of the KNF's historical maximum potential, as suggested by the Forest Plan. Therefore, this range of 335 to 554 pairs is a reasonable interpretation of the Forest Plan's provisions for maintaining species viability. The KNF is currently home to 425 breeding pairs of woodpeckers, well within the permissible range, and the Forest Service's determinations in this respect were not arbitrary or capricious.

The panel has voted to deny the petition for panel rehearing. Judges Tallman and M. Smith have voted to deny the petition for rehearing en banc and Judge Reavley so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

TALLMAN, Circuit Judge:

WildWest Institute ("WildWest") challenges the United States Forest Service's approval of nine timber sale and restoration projects in Montana's Kootenai National Forest ("KNF"), claiming violations of the National Forest Management Act ("NFMA"), the National Environmental Policy Act ("NEPA"), and Forest Service regulations. WildWest sought declaratory and injunctive relief to prevent environmental injury. The district court granted summary judgment in favor of the Forest Service. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. Facts and Prior Proceedings

The KNF covers over 2.2 million acres in northwest Montana. The Forest Service adopted the Kootenai National Forest Plan ("Forest Plan") pursuant to NFMA in 1987. It is intended to guide "all natural resource management activities and establishes management standards" for the forest. The Forest Plan establishes 23 Management Areas ("MA") within the KNF, including one related to Old Growth Timber ("MA 13").

To implement the Forest Plan, the Forest Service adopts plans and projects for specific areas of the KNF. Over the course of 2004 and 2005, the Forest Service adopted the nine site-specific projects that are challenged here: the Bristow Area Restoration Project, Fortine Project, West Troy Project, Pipestone Timber Sale and Restoration Project, Lower Big Creek Project, South McSwede Timber Sale and Restoration Project, Alder Creek Project, Cow Creek Project, and McSutten Project. For each project, the Forest Service conducted an extensive environmental analysis, including a draft and final environmental impact statement ("DEIS" and "FEIS") or an environmental assessment.

WildWest filed this action challenging the nine projects on numerous grounds. The district court denied WildWest's motion for a preliminary injunction. The parties filed cross-motions for summary judgment, and the district court granted summary judgment in favor of the Forest Service. Wildwest Inst. v. Castaneda, 462 F.Supp.2d 1150, 1163 (D.Mont.2006). The district court noted that, on many of its claims, WildWest had failed to "establish[ ] a connection between the challenged forest-wide management practices and the lawfulness of the logging projects." Id. at 1157. Regarding those claims properly raised, the district court concluded the Forest Service had complied with the relevant procedural and substantive legal requirements. Id. at 1158-63. WildWest timely appealed.

II. Standard of Review

We review the district court's grant of summary judgment de novo. McFarland v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir.2008).

The Administrative Procedure Act ("APA") provides the authority for our review of decisions under NEPA and NFMA. Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir. 2008) (en banc). Under the APA, an agency decision will be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1062 (9th Cir.2005). "Review under the arbitrary and capricious standard `is narrow, and [we do] not substitute [our] judgment for that of the agency.'" Lands Council II, 537 F.3d at 987 (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006)) (alterations in original). "Rather, we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, `entirely failed to consider an important aspect of the problem,' or offered an explanation `that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'" Id. (quoting Earth Island Inst., 442 F.3d at 1156).

III. Background

A. Governing Provisions

The National Forest Management Act, 16 U.S.C. §§ 1600 et seq., provides both procedural and substantive requirements. Procedurally, it requires the Forest Service to develop and maintain forest resource management plans. Id. § 1604(a). After a forest plan is developed, all subsequent agency action, including site-specific plans like the nine projects challenged here, must comply with NFMA and the governing forest plan. Id. § 1604(i); see Lands Council II, 537 F.3d at 989.

Substantively, NFMA requires that forest plans "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area." 16 U.S.C. § 1604(g)(3)(B). Forest plans must also ensure that timber will be harvested only where "soil, slope or other watershed conditions will not be irreversibly damaged," and provide protection for streams from "detrimental" deposits of sediment "where harvests are likely to seriously and adversely affect water conditions or fish habitat." Id. § 1604(g)(3)(E).

The National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., contains additional procedural requirements. Its purposes are to ensure the decision-maker will have detailed information on environmental impacts and to provide that information to the public. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir.1996). The Forest Service must prepare an EIS, which identifies environmental effects and alternative courses of action, when undertaking any management project. Id.; 42 U.S.C. § 4332(c). "In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results." Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir.2002). The agency must only take a "hard look" at its proposed action. Id. at 1070.

Two Forest Service regulations also apply here. The "1982 Rule" requires the Forest Service to identify and monitor management indicator species ("MIS") and directs that "fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species." 47 Fed.Reg. 43048 (Sept. 30, 1982). The KNF Forest Plan incorporated this and several other provisions of the 1982 Rule.

The 1982 Rule was partially superceded in 2000 (the "2000 Rule"). The 2000 Rule's substantive provisions did not apply to site-specific decisions made between 2000 and 2005. 69 Fed.Reg. 58,055-58 (Sept. 29, 2004). The "transition" portions of the rule, which did apply during this time, required the responsible officials to consider the "best available science" when implementing existing land and resource management plans. 36 C.F.R. § 219.35(a) (2001); 69 Fed.Reg. 58,057 (Sept. 29, 2004). The requirements of the superceded 1982 Rule apply only to the extent they were incorporated into the Forest Plan.¹ See generally Citizens for Better Forestry v. U.S. Dep't of Ag., 341 F.3d 961, 966-68 (9th Cir.2003) (discussing in detail the provisions of the 1982 and 2000 Rules).

B. The Forest Plan

The Forest Plan establishes twenty-four long-term goals, including "pr...