Alliance for the Wild Rockies v. U.S. Forest Serv.

• Decision Date: 25 October 2018
• Docket Number: No. 16-35829,16-35829
• Citation: 907 F.3d 1105
• Parties: ALLIANCE FOR THE WILD ROCKIES; Idaho Sporting Congress ; Native Ecosystems Council, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; Thomas Tidwell, Chief of the Forest Service; Keith Lannom, Forest Supervisor for Payette National Forest; Nora Rasure, Regional Forester for Region 4 for the U.S. Forest Service, Defendants-Appellees, and Adams County, a Political Subdivision of the State of Idaho; Payette Forest Coalition, an Unincorporated Idaho Association, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

907 F.3d 1105

ALLIANCE FOR THE WILD ROCKIES; Idaho Sporting Congress ; Native Ecosystems Council, Plaintiffs-Appellants,

v. UNITED STATES FOREST SERVICE; Thomas Tidwell, Chief of the Forest Service; Keith Lannom, Forest Supervisor for Payette National Forest; Nora Rasure, Regional Forester for Region 4 for the U.S. Forest Service, Defendants-Appellees,andAdams County, a Political Subdivision of the State of Idaho; Payette Forest Coalition, an Unincorporated Idaho Association, Intervenor-Defendants-Appellees.

No. 16-35829

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2018 Seattle, Washington

FILED OCTOBER 25, 2018

David Alan Bricklin, Jacob Brooks, Claudia Newman, Bricklin & Newman, LLP, Seattle, WA; Rebecca Kay Smith, Public Interest Defense Center, P.C., Missoula, MT, for Plaintiffs-Appellants.

Allen M. Brabender, Sean Christian Duffy, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC; Christine Gealy England, Office of the U.S. Attorney, Boise, ID; Bridget McNeil, U.S. Department of Justice, Environment & Natural Resources Division, Denver, CO, for Defendants-Appellees

Lawson Emmett Fite, American Forest Resource Council, Portland, OR, for Intervenor-Defendants-Appellees.

Before: Milan D. Smith, Jr. and Mary H. Murguia, Circuit Judges, and Eduardo C. Robreno,^* District Judge.

ORDER

The opinion filed August 13, 2018, and appearing at 899 F.3d 970, is hereby amended. An amended opinion is filed herewith.

The petitions for panel rehearing are DENIED (Doc. 58, 61). No further petitions for rehearing or rehearing en banc will be entertained in this case.

Appellant’s Emergency Motion for Injunction and Appellees' Motion to file an oversized response are DENIED as moot (Docs. 65, 68).

The Clerk is DIRECTED to immediately issue the mandate.

AMENDED OPINION

Opinion by Judge MURGUIA, Circuit Judge:

This case requires us to determine whether the Forest Service’s management direction for a particular section of Idaho’s Payette National Forest is consistent with the management direction that governs the forest as a whole. In September 2014, the United States Forest Service approved the Lost Creek-Boulder Creek Landscape Restoration Project ("Lost Creek Project" or "Project"), which proposed landscape restoration activities on approximately 80,000 acres of the Payette National Forest. Following approval of the Project, Plaintiffs-Appellants the Alliance for the Wild Rockies, Idaho Sporting Congress, and Native Ecosystems Council (collectively, "Alliance") filed suit in federal court, claiming Defendants-Appellees United States Forest Service, Thomas Tidwell, Keith Lannom, and Nora Rasure (collectively, "Forest Service") violated the National Forest Management Act ("NFMA") by failing to adhere to the requirements of the 2003 Payette National Forest Land and Resource Management Plan ("the Payette Forest Plan" or "the 2003 Plan"). The 2003 Plan governs management decisions on all land within the Payette National Forest, including the Lost Creek Project. Specifically, the Alliance claimed that the Forest Service acted inconsistently with the Payette Forest Plan, in a manner that would harm certain habitat within the forest, when it created a new definition for "old forest habitat" and designated certain land to be managed for landscape restoration, as opposed to commodity production. According to the Alliance, although the Lost Creek Project espoused certain environmental benefits, the upshot of these decisions would be an increase in commercial logging and a decrease in habitat protected as "old forest." The Alliance also claimed the Forest Service violated the National Environmental Policy Act ("NEPA") by improperly incorporating the analysis of—or "tiering to"—prior agency documents that did not undergo a full NEPA review. Finally, the Alliance claimed the Forest Service violated the Endangered Species Act ("ESA") by failing to reinitiate consultation with the United States Fish and Wildlife Service regarding the effects on critical habitat for the bull trout.

In its present appeal, the Alliance challenges the district court’s grant of summary judgment in favor of the Forest Service and Intervenor-Defendants-Appellees Adams County and the Payette Forest Coalition (collectively, "Adams County"). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

I. Statutory & Factual Background

A. The NFMA

The NFMA charges the Forest Service with the management of national forest land, including planning for the protection and use of the land and its natural resources. See 16 U.S.C. § 1600 et seq. Under NFMA, forest land management occurs on two levels: (1) the forest level, and (2) the individual project level. Native Ecosystems Council v. Weldon , 697 F.3d 1043, 1056 (9th Cir. 2012). "On the forest level, the Forest Service develops a Land and Resource Management Plan (forest plan), which consists of broad, long-term plans and objectives for the entire forest." Id. The forest plan is then implemented at the project level. See id. Site-specific projects and activities must be consistent with an approved forest plan. 16 U.S.C. § 1604(i) ; 36 C.F.R. § 219.10(e)(1998)¹ ; Native Ecosystems Council v. U.S. Forest Serv. , 418 F.3d 953, 961 (9th Cir. 2005) ("It is well-settled that the Forest Service’s failure to comply with the provisions of a Forest Plan is a violation of NFMA."); Idaho Sporting Cong., Inc. v. Rittenhouse , 305 F.3d 957, 962 (9th Cir. 2002) ("[A]ll management activities undertaken by the Forest Service must comply with the forest plan, which in turn must comply with the Forest Act...."). A project is consistent if it conforms to the applicable "components" of the forest plan, including the standards, guidelines, and desired conditions that are set forth in the forest plan and that collectively establish the details of forest management. Consistency under agency regulations depends upon the component type. The Forest Service must strictly comply with a forest plan’s "standards," which are considered binding limitations, but it may deviate from the forest plan’s "guidelines," so long as the rationale for deviation is documented.

B. NEPA

"NEPA is a procedural statute that requires the federal government to carefully consider the impacts of and alternatives to major environmental decisions." Weldon , 697 F.3d at 1051. "The National Environmental Policy Act has twin aims. First, it places upon [a federal] agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Kern v. U.S. Bureau of Land Mgmt. , 284 F.3d 1062, 1066 (9th Cir. 2002) (alteration in original) (internal quotation marks and citation omitted). "NEPA requires agencies to take a ‘hard look’ at the environmental consequences of proposed agency actions before those actions are undertaken." All. for the Wild Rockies v. Pena , 865 F.3d 1211, 1215 (9th Cir. 2017) (citation omitted).

C. The Payette National Forest

The Payette National Forest contains approximately 2,300,000 acres of national forest system lands in west central Idaho. The region is 87% forested and contains portions of the Salmon, Payette, and Weiser River systems and parts of the Salmon River Mountains. It is home to many species, including the threatened bull trout.

The Payette National Forest is managed in accordance with the 2003 Payette Forest Plan, pursuant to the NFMA. Emphasizing restoration and maintenance of vegetation and watershed conditions, the 2003 Plan divides the Payette Forest into 14 sections that are called "management areas" ("MA"). The land within each MA is assigned to various categories that determine how the land is managed. These categories are called Management Prescription Categories ("MPC"). The categories range from "Wilderness" (MPC 1.0) to "Concentrated Development" (MPC 8.0).

Relevant here, MPC 5.1 places an emphasis on landscape restoration in order to provide habitat diversity, reduced fire risk, and "sustainable resources for human use." Timber harvest may occur on MPC 5.1 land, as an outcome of maintaining resistance to fire, but timber yield is not the primary purpose. MPC 5.1 constitutes 193,000 acres of the Payette Forest under the Payette Forest Plan. In contrast, MPC 5.2 is forested land that has an emphasis on achieving sustainable resources for commodity outputs, such as timber production. MPC 5.2 constitutes 247,000 acres under the 2003 Plan.

In 2011, the Forest Service proposed amendments to the Payette Forest Plan. The proposed amendments, which were called the Wildlife Conservation Strategy ("WCS"), would prioritize activities that would help maintain or restore habitat for certain species of wildlife that the Forest Service determined were in greatest need of conservation. Relevant here, the WCS amendments proposed deleting MPC 5.2 (commodity production) in its entirety, and replacing it with MPC 5.1 (restoration).² The WCS amendments also proposed changes to Appendix E of the 2003 Payette Forest Plan, to include a new criteria for defining "Old Forest Habitat," a designation that refers to older habitat marked by large trees and which is particularly good habitat for wildlife. The Forest Service released a draft environmental impact statement ("WCS DEIS") for the proposed amendments pursuant to NEPA. However, following the public comment period on the WCS DEIS, the Forest Service stopped the process, and the WCS amendments were never adopted, leaving the 2003 Payette Forest Plan fully in effect. According to the Alliance, the WCS amendments, including the switch from MPC 5.2 to MPC 5.1 and the new definition of "Old Forest Habitat," were controversial policies that paved the way for logging more trees.

D. The Lost-Creek Project

In 2012, the Forest Service initiated the Lost Creek...