Forest Guardians v. United States Forest Service

• Decision Date: 20 July 2007
• Docket Number: No. 07-1020.,07-1020.
• Citation: 495 F.3d 1162
• Parties: FOREST GUARDIANS; Colorado Wild; Center for Native Ecosystems; Carson Forest Watch; K. Randall McKown; Gilbert Duran; and Alice Duran, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee. Intermountain Forest Association; Intermountain Resources, LLC; and Mountain Valley Lumber Co., Inc., Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

495 F.3d 1162

FOREST GUARDIANS; Colorado Wild; Center for Native Ecosystems; Carson Forest Watch; K. Randall McKown; Gilbert Duran; and Alice Duran, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, Defendant-Appellee.

Intermountain Forest Association; Intermountain Resources, LLC; and Mountain Valley Lumber Co., Inc., Defendants-Intervenors-Appellees.

No. 07-1020.

United States Court of Appeals, Tenth Circuit.

July 20, 2007.

Nicolas F. Persampieri (Andrea Zaccardi with him on the briefs), Earthjustice, Denver, CO, for the Plaintiffs-Appellants.

Scott W. Horngren, Haglund, Kelley, Horngren, Jones, & Wilder, LLP, Portland, OR, and John L. Smeltzer (Kenneth Capps, Office of the General Counsel, U.S. Department of Agriculture; Matthew J. McKeown, and Mark R. Haag with them on the briefs), U.S. Department of Justice, Washington, DC, for the Defendants-Appellees.

Before LUCERO, ANDERSON, and McCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

Forest Guardians¹ appeal a district court decision finding that the United States Forest Service ("USFS") complied with the relevant laws in approving the County Line Vegetation Management Project. They argue that USFS: (1) violated the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604(b), by failing to collect actual population data for management indicator species ("MIS"); (2) failed to provide substantial evidence for its conclusion that the relevant soil standard would be met; and (3) violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., by failing to consider the impacts of logging trucks on neighboring landowners. We take the district court's view of the matter and reject Forest Guardians' first and third claims on the merits. We further conclude that Forest Guardians did not present their second claim in their administrative appeal and have thus forfeited it. Accordingly, we AFFIRM.

I

The Rio Grande National Forest covers nearly two million acres in southern Colorado, including the headwaters of the historic Rio Grande. Spanning both sides of the Continental Divide, it encompasses a wide variety of breathtaking landscapes, from alpine desert to the organ pipes of the Wheeler Geologic Area, long silenced after their deafening creation from the volcanic froth of the Creede Caldera. Pursuant to the NFMA, USFS management of the forest is guided by the Rio Grande National Forest Land and Resource Management Plan (the "Forest Plan"), which was comprehensively amended in 1996 to comply with the USFS regulations that were then in effect. See Nat'l Forest Sys. Land and Res. Mgmt. Planning, 47 Fed. Reg. 43,026 (Sept. 30, 1982) (formerly codified at 36 C.F.R. § 219) (the "1982 Regulations").

Following an administrative appeal brought by several environmental groups, USFS determined that additional amendments to the Forest Plan were necessary. Under the 1996 plan, USFS failed to designate MIS as was then required by 36 C.F.R. § 219.19(a)(6). MIS, like canaries in coal mines, are used as proxies for environmental health; problems in MIS populations indicate larger ecosystem trouble. In 2003, USFS again amended the Forest Plan to remedy its MIS shortcoming. In the Environmental Assessment accompanying that amendment, USFS stated, "The primary purpose of the MIS amendment is to assure that species viability is measured and monitored as directed in 36 C.F.R. 219.19." Similarly, in its Decision Notice/Finding of No Significant Impact for the amendment, USFS concluded "MIS selection, monitoring, and assessment need to meet the intent of monitoring and evaluating MIS as described in the 1982 planning regulations (36 C.F.R. 219.19)."

Towards that end, USFS selected nine MIS for the Rio Grande National Forest: the brown creeper, the hermit thrush, the pygmy nuthatch, Lincoln's sparrow, Wilson's warbler, the vesper sparrow, the mule deer, the Rocky Mountain elk, and the Rio Grande cutthroat trout. Where Rio Grande cutthroat trout are not present, USFS designated several other trout species to be monitored in their stead. The amendment also included a chart establishing monitoring schedules and methods for MIS.² Rio Grande cutthroat trout are to be evaluated every five years, using "Stream surveys/DOW surveys."³ MIS birds are subject to "[p]oint counts, nest search, presence surveys, [and/or] MCB surveys,"⁴ to be conducted "[a]nnually at the state and national forest level." A footnote to the MIS birds discussion indicates that "[p]roject-specific monitoring will be incorporated into Forest Plan monitoring as applicable." Finally, mule deer and Rocky Mountain elk are to be evaluated annually using DOW surveys. The Forest Plan itself does not explicitly incorporate 36 C.F.R. § 219.19.

Following adoption of the 2003 amendment, and the discovery of a significant spruce beetle infestation, USFS developed a logging project referred to as the "County Line Vegetation Management Project." Under that project, USFS authorized the harvest of 24 to 29 million board feet of timber from a 2282 acre area. In the southern section of that area, infested trees will be removed from 841 acres. In the northern section, where infestation is minimal, 715 acres will be thinned. Approximately eighteen miles of roads will be constructed or reconstructed. Two sections of the project area are considered landslide risks and will not be logged. In addition, USFS instituted a 100 foot buffer zone on both sides of any creek. Two waterways fall within the project area-the Rio de los Pinos and Wolf Creek.

To assist it in developing an Environmental Impact Statement ("EIS") for the project, USFS prepared a "Specialist Report for MIS," which details the agency's MIS monitoring activities. Two MIS, the pygmy nuthatch and the vesper sparrow, were not analyzed because no suitable habitat for those species exists in the project area. Two others, Wilson's warbler and Lincoln's sparrow, were also excluded because the project area included only a very limited amount of habitat for those species. For the final two avian MIS, the brown creeper and the hermit thrush, USFS estimated project-level populations using potential population densities. Project-level point counts confirmed the presence of both species. Because MIS monitoring did not begin until 2004, USFS did not yet have forest-wide trend data. Instead, it utilized trend data from the MCB program, the Colorado Land Bird Conservation Plan, and the Colorado Breeding Bird Atlas project. The specialist report noted that the project could displace up to 311 pairs of brown creeper and 155 pairs of hermit thrush, but that such numbers represented a negligible portion of the forest-level populations of these species.

Rocky Mountain elk and mule deer population data were based on Colorado DOW surveys. However, given the range of these animals, it was not feasible to estimate populations for a relatively small 2282 acre site. The report predicted that the project would not significantly impact either species. Rio Grande cutthroat trout forest-level population trend data were based on Colorado DOW surveys. USFS also reported that core trout populations were found in Rio de los Pinos about one half mile upstream from the project, and in Wolf Creek one mile downstream from the project. Both populations are cut off from the project area by the presence of large waterfalls. Population data for these groups were based on 2001 and 2003 survey data. Although it acknowledged the project could adversely impact the downstream population in the short term, USFS concluded that, with mitigation measures, the project would not seriously impact species density.

In response to a Forest Plan requirement that USFS "[m]anage land treatments to limit the sum of severely burned and detrimentally compacted, eroded, and displaced land to no more than 15% of any land unit," USFS reported the following: (1) Existing soil impacts were estimated at less than 5% of the project area, consisting of past logging roads and skid trails; (2) No recent logging projects were conducted in the southern section of the project area; (3) A number of mitigation techniques, including use of existing skid trails and the potential use of a winged subsoiler to till compacted lands, would keep the project within the 15% limit; (4) Based on the Water Erosion Prediction Program ("WEPP") model, the project would increase erosion rates, but would have little impact on overall erosion; and (5) Continuous inspection by USFS soil experts would ensure project compliance.

These statements are supported by five documents in the administrative record. John Rawinski, a forest soil scientist, provided reports for two on-site investigations he conducted. The first discusses soil conditions on and around an existing road that could be used for the project. The second details his inspection of an area excluded from the project due to its landslide potential. The third document is a collection of notes and reports from prior projects discussing soil conditions in the project area. Fourth, a report from geotechnical engineer Michael Burke discusses landslide potential in two areas that were subsequently excluded from the project. Finally, a report also authored by Rawinski provides erosion rate estimates using the WEPP model.

Many individuals and groups, including Forest Guardians, submitted comments to USFS with respect to the project. Private abutting landowners K. Randal McKown, and Alice and Gilbert Duran submitted comments about "noise, traffic, and dust" that would be generated by logging trucks. Responding to the private landowners in the final EIS, USFS noted that the project "would have temporary effects to recreation users and private land owners adjacent to the proposed treatment areas, especially during the active timber sales with heavy truck traffic on the roads leading into the sale areas."

On the same day it issued the final EIS, USFS filed its Record of Decision. Several...