Forest Guardians v. U.S. Forest Service, No. 06-2306.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Holmes
• Citation: 579 F.3d 1114
• Parties: FOREST GUARDIANS and Carson Forest Watch, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.
• Docket Number: No. 06-2306.
• Decision Date: 26 August 2009

579 F.3d 1114 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. August 26, 2009.

[579 F.3d 1116]

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 McCONNELL, SEYMOUR, and HOLMES, Circuit Judges.

[579 F.3d 1117]

HOLMES, Circuit Judge.

Plaintiffs-Appellants Forest Guardians and Carson Forest Watch (collectively "Forest Guardians") challenge the United States Forest Service's approval 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 Forest Service regulations. Forest Guardians sought declaratory and injunctive relief; the district court denied them relief and granted judgment in favor of the United States Forest Service ("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; 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 and 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. 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,

579 F.3d 1118

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"),³ and USFS regulations. The district court denied relief and affirmed the USFS's approval of the A/C Project. Forest Guardians now appeals.

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. (alterations, citations, and internal quotation marks omitted).

B. Approval of the A/C Project and Administrative Exhaustion

1. 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 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.

579 F.3d 1119

§ 219.35(a) (2001) [hereinafter 2000 BAS standard]. 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." See 36 C.F.R. §§ 219.11 (2008); 70 Fed.Reg. 1023, 1027 (Jan. 5, 2005).

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. 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 BAS standard, rather than the 1982 Rules, applies 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." See UEC III, 443 F.3d at 746-47 (concluding, based on the USFS's interpretive rule adopted in 2004, that "during the transition period between November 2000 and promulgation of a final rule, the Forest Service should use the `best available science' under § 219.35(a) for project decisions" (internal quotation marks omitted)).⁴ Rather, Forest Guardians' primary argument is directed toward the USFS's alleged failure to consider and apply the BAS standard in evaluating the project and the inequity of expecting Forest Guardians to present arguments regarding the BAS standard during the administrative appeal process.

We previously have explained why the applicability of the 1982 Rules versus the 2000 BAS standard can be an important distinction in the evaluation of forest plans:

Deciding whether the 1982 regulations apply to the Project ... is important because the 1982 regulations and the 2000 transition provisions contain key differences governing species monitoring. The 1982 rules, for example, require the Forest Service to monitor the "population trends of the management indicator species" and determine "relationships to habitat changes." 36 C.F.R. § 219.19(a)(6). And we have held that these obligations apply to project level as well as plan level management actions. Conversely, the 2000 transition provisions contain no such explicit language governing monitoring but merely require "the responsible official to consider the best available science in implementing" a forest plan. 36 C.F.R. § 219.35(a), (d) (2001); 65 Fed.Reg. 67,514, 67,579 (Nov. 9, 2000).

UEC III, 443 F.3d at 744-45 (alterations and citation omitted); see also UEC II, 439 F.3d at 1190 (quoting Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 117 (2d Cir.2005), for the proposition that "the standards of the 1982 Rules and the 2000 Transitional Rule are—at least—distinct"); Sierra Club v. Wagner, 555 F.3d 21, 25 (1st Cir.2009) ("One might think from the name that `best available science' is an unexceptionable standard, but according to [the plaintiff], the 1982 rules provided a set

579 F.3d 1120

of precise tests for evaluating a project's...