Ecology Center, Inc. v. Austin, 03-35995.
| Decision Date | 08 December 2005 |
| Docket Number | No. 03-35995.,03-35995. |
| Citation | 430 F.3d 1057 |
| Parties | ECOLOGY CENTER, INC., Plaintiff-Appellant, v. Deborah AUSTIN, in her official capacity as Forest Supervisor for the Lolo National Forest; Bradley Powell, 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, Mineral County; Town of Superior; St. Regis School District No. 6; Superior School District No. 3; Montana Coalition Of Forest Counties; Tricon Timber, Defendant-Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. Woodbury, Forest Defense, P.C., Missoula, MT, for the plaintiff-appellant.
Aaron P. Avila, Ronald M. Spritzer, Department of Justice, Washington, D.C., for the defendants-appellees.
Appeal from the United States District Court for the District of Montana Donald
Before: B. FLETCHER, McKEOWN, and GOULD, Circuit Judges.
Ecology Center, Inc. ("Ecology Center") challenges the United States Forest Service's ("Forest Service" or "Service") Lolo National Forest Post Burn Project ("Project"), which was designed in the aftermath of the 2000 wildfires on the Lolo National Forest ("LNF"). Ecology Center raises a number of procedural and substantive claims under the National Environmental Policy Act ("NEPA") and the National Forest Management Act ("NFMA"). We have jurisdiction pursuant to 28 U.S.C. § 1291. Because we find that the Forest Service's decision to permit logging in critical old-growth forest and post-fire habitats was arbitrary and capricious, we reverse the grant of summary judgment to the Service and remand.
In 2000, wildfires burned approximately 74,000 acres on the Lolo National Forest. While the fires caused considerable damage to the forest, they also created habitat for species that are dependent upon post-fire habitats, such as the black-backed woodpecker.
In response to the 2000 fires, the Forest Service began developing the Lolo National Forest Post Burn Project and preparing the requisite Environmental Impact Statement ("EIS"). The Forest Service considered four alternatives in detail, including a "no action alternative." In July 2002, the Forest Service selected a slightly modified version of "Alternative Number Five" for the Project. This alternative involves, inter alia, commercial thinning of small diameter timber and prescribed burning in old-growth forest stands, as well as salvage logging of burned and insect killed timber in various areas of the forest.
On February 7, 2003, Ecology Center filed its complaint, raising several claims under NEPA and NFMA. Ecology Center objects to the Forest Service's decision to permit commercial logging in old-growth forest stands, raising concerns about the impact of such logging on the viability of species that are dependent upon old-growth habitat, such as the pileated woodpecker and the northern goshawk. Similarly, Ecology Center questions the Service's impact analysis of salvage logging in post-fire habitat, particularly with respect to the black-backed woodpecker, a sensitive species. Ecology Center also raises concerns regarding the impact of the Project on soil conditions and questions the reliability of the Service's soil quality analysis.
Ecology Center moved for a temporary restraining order and preliminary injunction, both of which the district court denied. The parties then filed cross-motions for summary judgment. On November 4, 2003, the district court struck extra-record declarations that Ecology Center had included with its motion and granted summary judgment in favor of the Forest Service.1
"Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record." Lands Council v. Powell, 379 F.3d 738, 743 (9th Cir.2004), amended by 395 F.3d 1019 (9th Cir.2005). Our review of agency actions challenged under NFMA and NEPA is governed by the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998); Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1165 (9th Cir.2003). Under the APA, we review to determine if the agency's actions were "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Lands Council, 379 F.3d at 743.
NFMA imposes both substantive and procedural requirements on the Forest Service. 16 U.S.C. §§ 1600-1687. Procedurally, it requires the Forest Service to develop a land and resource management plan ("forest plan") for each forest that it manages. 16 U.S.C. § 1604(a). Subsequent agency actions must not only comply with NFMA but also be consistent with the governing forest plan. 16 U.S.C. § 1604(i); Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 961-62 (9th Cir. 2002) (). NFMA also requires that the Forest Service adopt regulations specifying guidelines for the achievement of NFMA's substantive mandates. 16 U.S.C. § 1604(g)(3).
"In providing for multiple uses, the forest plan must comply with substantive requirements of the Forest Act designed to ensure continued diversity of plant and animal communities and the continued viability of wildlife in the forest...." Idaho Sporting Congress, 305 F.3d at 961; 16 U.S.C. § 1604(g)(3)(B). In addition to the mandate to maintain wild-life viability, the Forest Service must maintain soil productivity. 16 U.S.C. § 1604(g)(3)(C).
Unlike NFMA, NEPA imposes no substantive requirements. Instead, it is designed "to force agencies to publicly consider the environmental impacts of their actions before going forward." Idaho Sporting Congress, 305 F.3d at 963. "Agencies must adequately consider the project's potential impacts and the consideration given must amount to a `hard look' at the environmental effects." Id. Specifically, NEPA requires the preparation of a detailed Environmental Impact Statement. 42 U.S.C. § 4332(2)(C). An EIS must "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.
The Project involves what the Forest Service characterizes as rehabilitative "treatment" of old-growth (and potential old-growth) forest stands; this treatment entails the thinning of old-growth stands via commercial logging and prescribed burning. The Forest Service cites a number of studies that indicate such treatment is necessary to correct uncharacteristic forest development resulting from years of fire suppression. The Service also points out that the treatment is designed to leave most of the desirable old-growth trees in place and to improve their health.
Ecology Center highlights the scientific uncertainty and debate regarding the necessity, design, and long-term effects of such old-growth treatment. In particular, Ecology Center alleges that the treatment of old-growth forest harms species that are dependent upon old-growth habitat. For example, Ecology Center claims that, even if treatment leaves most old-growth trees in place, it removes or alters other essential elements within old-growth habitat and disturbs bird species currently nesting or foraging within targeted stands.2 Although treatment may be designed to restore old-growth to "historic conditions," Ecology Center points out this can be a misleading concept: for example, information regarding historic conditions is incomplete; altering particular sections of forest in order to achieve "historic" conditions may not make sense when the forest as a whole has already been fundamentally changed; many variables can affect treatment outcomes; and the treatment process is qualitatively different from the "natural" or "historic" processes it is intended to mimic.
While Ecology Center does not offer proof that the proposed treatment causes the harms it fears, the Service does not offer proof that the proposed treatment benefits — or at least does not harm — old-growth dependent species. Ecology Center argues that because the Forest Service has not assessed the effects of old-growth treatment on dependent species, the Service cannot be reasonably certain that treating old-growth is consistent with NFMA's substantive mandate to ensure species diversity and viability. As a result, especially given the scientific uncertainty surrounding the treatment of old-growth stands, the Forest Service's decision to treat additional old-growth stands was arbitrary and capricious.
Although the Forest Service points to a report which notes that two species of woodpecker were observed foraging in treated old-growth forest, it does not otherwise dispute the charge that it has not directly monitored the impact of treating old-growth on dependent species. Instead, the Service maintains that it need not do so because (1) it has observed the short-term effects of thinning old-growth stands via commercial logging and prescribed burning on forest composition, (2) it has reason to believe that certain old-growth dependent species would prefer the post-treatment composition of old-growth forest stands, and (3) its assumption that treatment does not harm old-growth dependent species is therefore reasonable. The Service further argues that we must defer to its methodological choices regarding what to monitor and how to assess the impact of old-growth treatment.
An agency's choice of methodology is entitled to deference....
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