Idaho Sporting Congress, Inc. v. Rittenhouse

• Decision Date: 17 September 2002
• Docket Number: No. 01-35403.,01-35403.
• Citation: 305 F.3d 957
• Parties: IDAHO SPORTING CONGRESS, INC.; Alliance for the Wild Rockies, Plaintiffs-Appellants, v. David RITTENHOUSE, in his official capacity as Supervisor of the Boise National Forest; United States Forest Service, Defendants-Appellees. Boise Cascade Corporation, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

305 F.3d 957

IDAHO SPORTING CONGRESS, INC.; Alliance for the Wild Rockies, Plaintiffs-Appellants, v. David RITTENHOUSE, in his official capacity as Supervisor of the Boise National Forest; United States Forest Service, Defendants-Appellees Boise Cascade Corporation, Defendant-Intervenor-Appellee.

No. 01-35403.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 1, 2002.

Filed September 17, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas J. Woodbury, Boise, ID, for the plaintiffs-appellants.

John A. Bryson, Mark R. Haag, Environment & Natural Resources Division United States Department of Justice, Washington, DC, Elise Foster, Kathryn Toffenetti, United States Department of Agriculture Office of the General Counsel, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-00-00246-EJL.

Before: D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.

Opinion by Judge D.W. NELSON; Dissent by Judge DAVID R. THOMPSON.

D.W. NELSON, Senior Circuit Judge.

Plaintiffs Idaho Sporting Congress, Inc. and Alliance for the Wild Rockies (collectively "Conservation Groups") brought suit against the United States Forest Service ("Forest Service") to enjoin two timber sales ("Lightning Ridge sale and Long Prong sale") in the Boise National Forest ("Forest") for violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4370f, and for violation of the National Forest Management Act ("Forest Act"),¹ 16 U.S.C. §§ 1600-1687. The district court granted summary judgment in favor of the Forest Service on all claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons stated below we affirm in part and reverse in part. We remand to the district court with instructions to enjoin the Long Prong and Lightning Ridge timber sales consistent with this opinion.

I. Background and Procedural History

A. The Boise National Forest

The Forest covers approximately 2,272,000 acres in west-central Idaho, north and east of the capital city of Boise. Many free-flowing streams with outstanding wild, scenic, and recreational values traverse the Forest, including the middle and south forks of the Payette River, the south fork of the Salmon River, and the south fork of the Boise River. The Frank Church-River Of No Return Wilderness, which is the largest wilderness area in the contiguous 48 states, is located partially within the Forest, and thirty-eight road-less areas located in the Forest encompass over one million acres.

Over three hundred species of wildlife depend on the Forest for habitat, including black bear, mountain lion, grey wolf, river otter, golden eagle, and osprey. Cutthroat, rainbow, brook, and bull trout live in the creeks and rivers of the Boise, Payette, and Salmon River drainages. Chinook salmon spawn and hatch in the streams of the Forest and then travel down the Columbia River system through Oregon and Washington, returning to the Pacific Ocean to live until they embark on the long journey upstream, returning again to lay their eggs in the cold-water washed gravel beds of South Fork Salmon River, Johnson Creek, Sulphur Creek, Elk Creek, and Bear Valley Creek.

The Forest supports myriad recreational activities, including fishing, hunting, camping, and white-water rafting. Commercial exploitation of Forest resources occurs mainly in the form of timber harvest. Logging and recreational uses of the Forest help support the economies of surrounding communities.

B. The National Forest Management Act

The Forest Service manages the Forest, and is required by statute and regulation to safeguard the continued viability of wildlife in the Forest. In carrying out its management responsibilities, the Forest Service must comply with the mandates of the Forest Act, 16 U.S.C. §§ 1600-1687. The Forest Act 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. The forest plan must provide for multiple uses of the forest, including recreation, range, timber, wildlife and fish, and wilderness. 16 U.S.C. § 1604(e)(1). 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, including the requirement that "wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 16 U.S.C. § 1604(g)(3)(B); 36 C.F.R. § 219.19 (1999).² In order to maintain viable populations of wildlife, "habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area." 36 C.F.R. § 219.19.

In summary, all management activities undertaken by the Forest Service must comply with the forest plan, which in turn must comply with the Forest Act, which requires that wildlife habitat must be managed to maintain viable populations of native and desired non-native wildlife species. In order to ensure compliance with the forest plan and the Forest Act, the Forest Service must conduct an analysis of each "site specific" action, such as a timber sale, to ensure that the action is consistent with the forest plan. Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 757 (9th Cir.1996) (citing 16 U.S.C. § 1604(i)).

C. The 1990 Land and Resource Management Plan for the Boise National Forest and the "Proxy on Proxy" Management Approach

In 1990, the Forest Service adopted a Land and Resource Management Plan to govern its management of the Boise National Forest ("Forest Plan"). The Boise Forest Plan employs a "proxy-on-proxy" approach to meet the requirement of maintaining viable wildlife populations. First, seven "management indicator species" were selected to represent the needs of various types of wildlife throughout the Forest. For example, the pileated woodpecker was selected to represent a "wide range of large snag users." By monitoring the health of the pileated woodpecker population, the health of a wide range of other species which use similar habitat would be monitored as well. In this way, the pileated woodpecker acts as an indicator, or proxy, for many other species. This indicator species approach is the first level of proxy.

Next, rather than actually monitoring the population of each indicator species to determine if viable populations are being maintained, the Forest Service designates certain types and quantities of habitat as sufficient to maintain viable populations of the selected indicator species. Then "[h]abitats used by management indicator species will be monitored to determine what population changes, if any, are induced by management activities." For example, the Forest Service determined that each breeding pair of pileated woodpeckers would require a 300 acre block of "mature timber," which would in turn contain at least 100 acres of "old growth" forest.

The Forest Plan sets out detailed and exacting requirements for old growth forest. It defines old growth as a "stand of trees that is past full maturity and showing signs of decadence." The Forest Plan also requires that, to qualify as old growth, a stand of trees must be at least ten acres in size and contain at least twenty trees per acre greater than 20" in diameter at breast height and thirty trees per acre 10" to 20" in diameter at breast height. There also must be at least fifteen tons per acre of downed or dead trees and two logs per acre greater than 12" in diameter at breast height. Finally, there must be at least two standing dead trees (snags) per acre greater than 20" in diameter at breast height and greater than twenty feet tall.

In order to support the minimum viable population of pileated woodpeckers, which the Forest Service determined to be ninety breeding pairs, ninety blocks of such forest would need to be maintained in a well distributed pattern throughout the Forest. These blocks of habitat are the second level of proxy, each block "counting" as the presence of a breeding pair of pileated woodpeckers, which in turn indicates (in theory) the presence of numerous other species which share similar habitat needs.

For management purposes, the Forest is divided into fifty-nine management areas. The larger management areas are in turn divided into compartments. Management areas vary in size from about 2,000 acres to over 135,000 acres. Compartments average about 5,000 to 7,000 acres. The Forest Plan calls for one pair of pileated woodpeckers to be located in each management area less than 50,000 acres and two pairs to be located in each management area over 50,000 acres. In other words, consistent with the proxy on proxy approach, one 300 acre block of mature forest containing 100 acres of old growth must be identified and preserved in each management area less than 50,000 acres and two such blocks must be identified and set aside in each area over 50,000 acres. Additionally, in order to comply with the Forest Act and its implementing regulations, these blocks "must be well distributed so that those individuals [pileated woodpeckers] can interact with others in the planning area." 36 C.F.R. § 219.19. At a minimum, this means that the offspring of breeding pairs must be able to find each other and find suitable breeding and foraging habitat so that the species can survive.

Consistent with the established needs of the pileated woodpecker, the Forest Plan calls for a minimum of 27,000 acres (90 breeding pairs multiplied by 300 acre blocks) to be set aside for pileated woodpecker habitat. To meet this requirement, the Forest Plan calls for "[d]edication of 55,000 acres of old-growth habitat, well-distributed throughout the...