Lamb et al. v. Thompson

• Decision Date: 21 August 2001
• Docket Number: No. 00-1222,00-1222
• Citation: 265 F.3d 1038
• Parties: (10th Cir. 2001) DAVID S. LAMB; BRIAN BRADEMEYER; BIODIVERSITY ASSOCIATES; SIERRA CLUB, Plaintiffs - Appellants, v. TOM L. THOMPSON, in his official capacity as Deputy Regional Forester for the Rocky Mountain Region of the U.S. Forest Service; FRANK J. CROSS, in his official capacity as District Ranger for the Pactola/Harney Ranger District; UNITED STATES FOREST SERVICE, Defendants - Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1038

265 F.3d 1038 (10th Cir. 2001)

DAVID S. LAMB; BRIAN BRADEMEYER; BIODIVERSITY ASSOCIATES; SIERRA CLUB, Plaintiffs - Appellants, v. TOM L. THOMPSON, in his official capacity as Deputy Regional Forester for the Rocky Mountain Region of the U.S. Forest Service; FRANK J. CROSS, in his official capacity as District Ranger for the Pactola/Harney Ranger District; UNITED STATES FOREST SERVICE, Defendants - Appellees.

No. 00-1222

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 21, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-WM-2923) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Julie A. Teel (Robert B. Wiygul, Earthjustice Legal Defense Fund, Denver, Colorado, on the briefs), Denver, Colorado, for the Plaintiffs-Appellants.

M. Alice Thurston, Attorney, (Lois J. Schiffer, Assistant Attorney General, Wells Burgess and Jeffrey Dobbins, Attorneys, with her on the brief), Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C., for the Defendants-Appellees.

Before TACHA, Chief Judge, REAVLEY,^* and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

This suit involves appellants', Biodiversity Associates', challenge to the Forest Service's approval of the Hollow Timber Sale in the Black Hills National Forest. Appellants claim that in approving the challenged timber sale the Service acted in violation of the Black Hills National Forest Plan and in violation of the National Forest Management Act. The district court denied plaintiffs' motion for summary judgment, granted judgment in favor of the Forest Service, and dismissed plaintiffs' claims. Exercising jurisdiction pursuant to 28 U.S.C. 1291, we affirm, but for different reasons than those stated in the district court.

I

A. The National Forest Management Act

Recognizing the "vital importance of America's renewable resources" and noting the "highly complex" issues raised by the management of the national forests, Congress enacted the National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949 (codified at 16 U.S.C. 1600 et seq.) ("NFMA"). The Act stated a "[c]ongressional policy of multiple use sustained yield management," 16 U.S.C. 1601(d), and provided for the "development and maintenance of land management plans for use on units of the National Forest System," 1604(b). Specifically, NFMA requires that land and resource management plans "provide for multiple use and sustained yield of the products and services obtained" from national forest land and "in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 1604(e)(1).¹

1. Forest Planning

NFMA establishes a two-step process for forest planning. See generally Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 116768 (10th Cir. 1999); Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998). For a particular forest entrusted to its management, the Forest Service is first required to develop a land resource management plan ("LRMP"), or forest plan, to prepare an accompanying environmental impact statement ("EIS"), and to facilitate a public review process conducted in accordance with the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq. See 16 U.S.C. 1604; 36 C.F.R. 219.10(a), (b) (1982).² Second, the Forest Service is required to implement the forest plan by approving or disapproving specific projects. Projects must be consistent with the governing forest plan and are subject to the procedural requirements of NEPA. 16 U.S.C. 1604(i) ("Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans."); 36 C.F.R. 219.10(e) (providing that the "Forest Supervisor shall ensure that . . . all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consist[e]nt with the plan."); Colo. Envtl. Coalition, 185 F.3d at 1168.

2. Timber Harvesting

NFMA requires the Secretary of Agriculture to establish standards to ensure that trees are not harvested until they reach the culmination of mean annual increment of growth ("CMAI"). 16 U.S.C. 1604(m). "CMAI is the age at which the rate of growth among a stand of young trees peaks and after which annual growth remains level or declines. CMAI is a traditional silvicultural definition designed to maximize the volume yield from a given area." (Appellees' App. at 223 (Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests 125 (1987)).)³ The CMAI standard is subject to statutory exceptions set forth in 1604(m)(1) as well as other exceptions to be established in accordance with 1604(m)(2).⁴

B. The Black Hills National Forest

In 1983, a LRMP for the Black Hills National Forest⁵ was implemented pursuant to 16 U.S.C. 1604.⁶ The Plan "provides for the coordinated multiple use of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness in the management of the Black Hills National Forest, resulting in sustained yields of goods and services for the benefit of the American people." (XI A.R. pt. 1, Record of Decision for Black Hills National Forest LRMP at 1.)

The Black Hills Plan contains a number of specific habitat management provisions designed to meet the statutory goal of providing a diversity of plant and animal communities in the National Forests. See 16 U.S.C. 1604(g)(3)(A) (requiring the Secretary of Agriculture to establish regulations insuring management for provision of wildlife and fish in the National Forests); 1604(g)(3)(B) (requiring the Secretary of Agriculture to establish regulations providing for diversity of plant and animal life in the National Forests); 36 C.F.R. 219.19. Among those provisions is a general direction to provide raptor habitat accompanied by a guideline regarding the specific proportions of old growth timber that should be maintained to achieve that provision. The goshawk, a kind of raptor, is designated as a sensitive species as well as a management indicator species for the Black Hills. A management indicator species is one whose "population changes are believed to indicate the effects of management activities." 36 C.F.R. 219.19(a)(1).

1. Hollow Project Proposals

The dispute before us centers on the Hollow Project Area, an area of approximately 3861 acres⁷ that lies within the Black Hills National Forest. Because the Hollow Project Area was failing to meet the "Desired Future Condition" ("DFC") set forth in the Forest Plan (II A.R. at II-3), in June 1995 the Pactola/Harney Ranger District of the Black Hills National Forest issued an Environmental Assessment ("EA") of the Hollow Project Area. The EA proposed certain "vegetative management activities" (id. at II-31), including the Hollow Timber Sale, which were specifically designed to "move toward meeting Forest Plan goals and objectives" (id. at II-32). Those goals and objectives included increased yield of timber products, habitat diversity, visual diversity, management of fire and insect risks, conservation of soil and water resources, and maintenance of "aesthetic values." (Id. at II-33 to II-34.) Among the activities proposed to meet the DFC of the Plan were: overstory removal, commercial thinning, commercial timber harvests, patch clearcuts, pine removal from meadows, hardwood release, and precommercial thinning.

The EA set forth four alternative project proposals. Aside from the no-action alternative, Alternative 1, the proposals involved some variation of a timber sale. Alternative 2 "would treat the most acreage"; Alternative 3 would "treat the least acreage" and maintain "more cover for wildlife species"; and Alternative 4 would involve the "least amount of road construction." (Id. at II-40.) Any of the four proposals, according to the EA, would result in four percent of the Hollow Project Area being "designated as old growth." (Id. at II-47.) Only two percent of the designated old growth was actually old growth at the time of the EA; the rest of the designated old growth stands were in "various structural stages." (Id. at II-69.)⁸

The specific environmental effects of each of the proposed alternatives are analyzed in the EA. The raptor management section acknowledges "concern[s] that populations and reproduction of the goshawk are declining in forests" and that these "declines may be associated with forest changes caused by timber harvesting. However, fire suppression, livestock grazing, drought, and toxic chemicals may be involved." (Id. at II-79.) The analysis then concludes that Alternatives 2 and 4 "have the lowest habitat potential for goshawks" and that Alternative 2 provides less mature dense canopy stands, i.e., goshawk nesting habitat, than Alternative 4. (Id.) The environmental effects section on silviculture states that the patch clearcut proposals of each of the action alternatives need not meet the requirements of CMAI because the clearcuts "will be created for other than timber management purposes . . . . 36 CFR 219.16(2)(iii) . . . ." (Id. at II-65 to II-67.) The EA also concludes that each of the action alternatives will result in meeting the grass/forb habitat diversity requirements of the Plan.

Chapter 2 of the EA sets forth mitigation measures to be used in reducing "the potential adverse impacts that may result from implementing the proposed activities." (Id. at II-41.) One of the mitigation measures involves special treatment of goshawk nest sites, although a 1993 survey showed no active goshawk nests in the Hollow Project Area.

2. Hollow Project Approval

After reviewing the EA of the Hollow Project Area District Ranger, Frank Cross, approved Alternative 2--with some modifications--in a Decision Notice and Finding of No Significant Impact ("FONSI") dated June 20, 1995. Before analyzing...