Guardians v. United States Forest Serv.

• Decision Date: 21 April 2011
• Docket Number: No. 06–2306.,06–2306.
• Citation: 641 F.3d 423
• Parties: FOREST GUARDIANS and Carson Forest Watch, Plaintiffs–Appellants,v.UNITED STATES FOREST SERVICE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

641 F.3d 423

FOREST GUARDIANS and Carson Forest Watch, Plaintiffs–Appellants,

v.UNITED STATES FOREST SERVICE, Defendant–Appellee.

No. 06–2306.

United States Court of Appeals, Tenth Circuit.

April 21, 2011.

Steven Sugarman (Alletta Belin with him on the brief), Belin & Sugarman, Santa Fe, NM, for Plaintiffs–Appellants.

David C. Shilton, Attorney, Environment & Natural Resources Division, Department of Justice (Ronald J. Tenpas, Assistant Attorney General; Andrew A. Smith and Mark R. Haag, Attorneys, Environment & Natural Resources Division, Department of Justice; Kathryn Toffenetti and Mary Ann Joca, Office of General Counsel, U.S. Department of Agriculture, with him on the brief), Washington, D.C., for Defendant–Appellee.Before BRISCOE, Chief Judge, and SEYMOUR, TACHA ^*, KELLY, LUCERO, MURPHY, HARTZ, O'BRIEN, TYMKOVICH, GORSUCH, HOLMES, and MATHESON ^**, Circuit Judges ^***.

ORDER

On March 8, 2010, this court entered an order granting the appellants' petition for en banc rehearing. Having now considered the parties' briefs and heard oral argument on the matter, the court has voted unanimously to vacate the March 8, 2010 order granting en banc rehearing as improvidently granted. As a result, that order is vacated.

The case is referred back to the original panel for action on the petition for panel rehearing. The remaining members of the original panel, who are in agreement on the matter, 28 U.S.C. § 46(d), grant the appellants' petition for panel rehearing pursuant to Federal Rule of Appellate Procedure 40. The previously issued opinion, Forest Guardians v. U.S. Forest Service, 579 F.3d 1114 (10th Cir.2009), is withdrawn. The attached opinion is substituted in its place.

ORDER ON PETITION FOR REHEARING

This matter is before the court on Forest Guardians and Carson Forest Watch's petition for rehearing. The panel has voted to grant a limited rehearing to modify some of the language in our panel opinion. The court's opinion filed on August 26, 2009, is withdrawn and an amended opinion is attached to this order.

Before SEYMOUR and HOLMES, Circuit Judges.^****

OPINION

PER CURIAM.

Plaintiffs–Appellants Forest Guardians and Carson Forest Watch (collectively, “Forest Guardians”) challenge the approval by the United States Forest Service (“USFS”) of a timber sale and restoration project in New Mexico's Carson National Forest, claiming violations of the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600 et seq., and the USFS's regulations. Forest Guardians sought declaratory and injunctive relief; the district court denied them relief and granted judgment in favor of the USFS. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

As part of the National Forest System, the Carson National Forest is maintained under a land and resource management plan (the “Carson Forest Plan”), pursuant to the NFMA, 16 U.S.C. § 1604. The Carson Forest Plan was adopted in 1986 and “sets forth broad, programmatic management direction for the Carson National Forest.” J.App. at 151 (Admin. R. Excerpt, “Management Recommendations for the Northern Goshawk in the Southwestern United States,” dated Aug. 1992); 16 U.S.C. § 1604(e). The Carson Forest Plan includes a monitoring program that provides that Management Indicator Species (“MIS”) be identified and that five years of baseline monitoring of each MIS be undertaken, followed by periodic monitoring of MIS population and trends. MIS are analogous to the storied canaries of coal mines; “[t]hey are a ‘bellwether’ for other species that have the same special habitat needs or population characteristics and serve as a proxy for determining the effects of management activities on other species.” Utah Envtl. Cong. v. Bosworth (UEC II), 439 F.3d 1184, 1190 (10th Cir.2006) (citation omitted) (internal quotation marks omitted). The Carson Forest Plan, as amended, identified eleven wildlife species, including the Abert's squirrel,¹ as MIS used to monitor the condition of the forest's ecosystems. These species were “considered to be representative [of] a variety of other species ... and were determined to reflect the habitat needs for the majority of the forest's species.” J.App. at 214 (Admin. R. Excerpt, “Supplement to the Final Environmental Impact Statement for the Agua/Caballos Proposed Projects”). They “were selected because population changes are believed to indicate the effects of management activities that occur [in] the forest.” Id.

To implement the Carson Forest Plan, the USFS approves plans and projects for specific areas of the Carson National Forest. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 735, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). Such projects must be consistent with the applicable forest plan. Utah Envtl. Cong. v. Bosworth (UEC III), 443 F.3d 732, 737 (10th Cir.2006) (citing the NFMA “consistency clause,” 16 U.S.C. § 1604(i)). The Agua/Caballos Project (“A/C Project”), at issue here, consists of site-specific silvicultural treatments,² timber cutting and sales, and related activities. The A/C Project was proposed in 1992, and it was first approved by the USFS in June 2002. Several parties, including the Appellants here, successfully appealed the approval on the grounds that the plan's MIS analysis was incomplete. The A/C Project was remanded to the USFS to complete the MIS analysis, i.e., to evaluate the effects of the project on the identified MIS, and to solicit further public comment and issue a new decision.

After the USFS undertook an updated forest-wide MIS assessment and sought comments, the revised A/C Project was approved in April of 2004 in a Record of Decision (the “ROD”). On July 12, 2004, Forest Guardians filed an administrative appeal of the USFS's final approval of the A/C Project; that appeal was rejected in August of 2004. Forest Guardians then filed this action in federal district court alleging that the USFS's approval of the A/C Project violated the NFMA, the National Environmental Protection Act (“NEPA”), and the USFS's regulations. The district court denied relief. The court declined to address the merits of Forest Guardians' NEPA claim because it found those claims had not been administratively exhausted. Similarly, the court declined to reach the merits of Forest Guardians' NFMA regulatory claim. Regarding that claim, after determining that the USFS's 2000 transition regulations applied to the A/C Project, the court held that Forest Guardians had not administratively exhausted any claim that the USFS failed to consider the 2000 regulations. Finally, the district court held that the USFS had not violated either the NFMA's consistency provision or its substantive provision. Forest Guardians now appeals.³

II. DISCUSSION

A. Standard of Review

Because the NFMA does not provide a private right of action, we review the USFS's approval of the A/C Project as a final agency action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq. UEC III, 443 F.3d at 739. The district court's decision is considered de novo, but we will not overturn the decision of the USFS “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)).

While administrative agencies generally are afforded a presumption of regularity, an agency's decision will nonetheless be arbitrary and capricious if the agency entirely ... failed to consider an important aspect of the problem, offered an explanation for its decision 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. Furthermore, we must determine whether the disputed decision was based on consideration of the relevant factors and whether there has been a clear error of judgment. Deference to the agency is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise.

Id. (citations omitted) (internal quotation marks omitted).B. Approval of the A/C Project and Administrative Exhaustion1. Forest Guardians' Failure to Exhaust

In 1982, the USFS revised its planning regulations (“the 1982 Rules”), 36 C.F.R. pt. 219 (1999), which govern USFS's management at both the program and project levels. In November 2000, the USFS significantly amended these regulations and replaced them with the 2000 planning rules, codified at 36 C.F.R. pt. 219 (2001). National Forest System Land and Resource Management Planning, 65 Fed.Reg. 67,514, 67,568–81 (Nov. 9, 2000); see UEC III, 443 F.3d at 737. Rather than being immediately promulgated, these new regulations provided that from November 9, 2000, until the promulgation of a new, final rule, the USFS “must consider the best available science [or “BAS”] in implementing ... [a forest] plan.” 36 C.F.R. § 219.35(a) (2001). These transition provisions ultimately remained effective until new rules were implemented in January 2005; similarly, these new rules prescribe that the USFS “must take into account the best available science.” 70 Fed.Reg. 1023, 1027 (Jan. 5, 2005); see 36 C.F.R. §§ 219.11 (2008).

As thoroughly explained by the district court, Forest Guardians had argued to the agency that the 1982 Rules were applicable to the USFS's evaluation and approval of the A/C Project. J.App. at 79, 83 (Dist. Ct. Mem. Op. & Order, filed Aug. 22, 2006). Forest Guardians adopted the same position in its initial filings with the district court. See Aplt. Opening Br. Attach. at 31. Now, on appeal, Forest Guardians does not dispute the district court's contrary, accurate conclusion that the 2000 transition provisions and their BAS standard, rather than the 1982 Rules, apply to the A/C Project; “any projects proposed during the transition period must conform with the best available science standard set forth in the 2000 transition provisions.” UEC III, 443 F.3d at 747; see id. at 746 (concluding, based on the...