Lands Council v. McNair, No. 09-36026

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: M. SMITH
• Citation: 629 F.3d 1070
• Parties: The LANDS COUNCIL, Plaintiff-Appellant, and Wild West Institute, Plaintiff, v. Ranotta McNAIR, Forest Supervisor for the Idaho Panhandle National Forests; United States Forest Service, Defendants-Appellees, Boundary County; City of Bonners Ferry; City of Moyie Springs; Everhart Logging, Inc.; Regehr Logging, Inc., Defendants-Intervenors-Appellees.
• Docket Number: No. 09-36026
• Decision Date: 28 December 2010

629 F.3d 1070

The LANDS COUNCIL, Plaintiff-Appellant,
and
Wild West Institute, Plaintiff,
v.
Ranotta McNAIR, Forest Supervisor for the Idaho Panhandle National Forests; United States Forest Service, Defendants-Appellees,
Boundary County; City of Bonners Ferry; City of Moyie Springs; Everhart Logging, Inc.; Regehr Logging, Inc., Defendants-Intervenors-Appellees.

No. 09-36026.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Oct. 5, 2010.
Filed Dec. 28, 2010.

629 F.3d 1072

Thomas J. Woodbury, Forest Defense P.C., for plaintiff-appellant Lands Council.

Ignacia S. Moreno, Assistant Attorney General; David C. Shilton, Susan L. Pacholski, Brian C. Toth (argued), Attorneys, U.S. Department of Justice, Environmental and Natural Resources Division; and Alan J. Campbell, Office of the General Counsel, U.S. Department of Agriculture (Of Counsel); for defendants-appellees Ranotta McNair and the United States Forest Service.

Scott W. Horngren (argued) and Julie A. Weis, Haglund Kelley Horngren Jones & Wilder LLP, for defendants-intervenors-appellees Boundary County, et al.

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. 2:06-cv-00425-EJL.

Before: SIDNEY R. THOMAS and MILAN D. SMITH, JR., Circuit Judges, and MICHAEL R. HOGAN, District Judge.^*

OPINION

M. SMITH, Circuit Judge:

The Lands Council and Wild West Institute challenged the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project (Project) area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violates the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., the IPNF Plan, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4231 et seq. On cross-motions for summary judgment, the district court granted summary

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judgment in favor of the Forest Service and denied Lands Council and Wild West Institute's motion for summary judgment. Lands Council appeals. We affirm the decisions of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Mission Brush Project

The Mission Brush Project area is located in the northern portion of the Bonners Ferry Ranger District in the IPNF. The project assessment area encompasses approximately 31,350 acres and includes the Mission and Brush Creek watersheds. Historically, the forest was primarily composed of ponderosa pine, western larch, and western white pine. However, the forest's composition has shifted as the result of a number of factors, including fire suppression, past logging practices, and white pine blister rust fungus. Presently, the forest is densely crowded with stands of younger, shade-tolerant species of trees that are more prone to insect infestation, disease, drought, and stand replacing fires than was previously the case. The Forest Service determined in its Supplemental Final Environmental Impact Statement (SFEIS) that "[t]he densely stocked stands we see today are causing a general health and vigor decline in all tree species."

The Forest Service estimated that without intervention old-growth and mature forests would continue to decline and, choosing among plan alternatives, decided to harvest 3,829 acres of forest. The Forest Service decided, as part of the Project, to thin 277 acres of old-growth forest by removing younger, smaller-diameter understory trees and fuel ladders (vegetation that conveys fire from the ground to old-growth canopy).¹ The Forest Service plan leaves large trees unaffected by not cutting trees over twenty-one inches in diameter within the old-growth stands. Lands Council and Wild West Institute challenged the Project.

B. Prior Proceedings

In May 2004, the Forest Service issued the Mission Brush Final Environmental Impact Statement (FEIS) and Record of Decision (ROD). Lands Council administratively appealed the ROD. We then issued a decision in Lands Council v. Powell, 395 F.3d 1019, 1037 (9th Cir.2005), holding that the Timber Stand Management Record System (TSMRS) database was inaccurate and unreliable. In response to the Powell decision, the Forest Service updated the TSMRS database and prepared a supplemental EIS.

On April 20, 2006, the Forest Service issued the SFEIS and ROD. Responding to the Powell ruling, the SFEIS contained additional information on cumulative effects and the methodologies for analyzing forest conditions, including wildlife analysis and stands of old-growth trees. The SFEIS also evaluated three alternative actions and one no-action alternative. The Forest Service chose Alternative 2, which included harvesting smaller trees within the 277 acres of old growth in the Project.

Lands Council administratively appealed the ROD, but its appeal was denied. In October 2006, Lands Council and Wild West Institute filed suit against the Forest Service alleging violations of the IPNF Plan, NFMA, and NEPA. Contemporaneously, Lands Council and Wild West Institute sought a temporary restraining order and a preliminary injunction to halt the Project. Boundary County, City of Bonners Ferry, City of Moyie Springs, Everhart Logging, Inc., and Regehr Logging,

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Inc. (collectively, Intervenors) intervened on behalf of the Forest Service.

The district court denied Lands Council's motion for a temporary restraining order as moot, and also denied its motion for a preliminary injunction. Lands Council appealed, and we reversed the district court's decision in Lands Council v. McNair, 494 F.3d 771 (9th Cir.2007). However, after rehearing the case en banc in Lands Council v. McNair ( Lands Council ), 537 F.3d 981 (9th Cir.2008) (en banc), we unanimously affirmed the district court's denial of injunctive relief.

Following the issuance of our decision en banc, the parties filed cross-motions for summary judgment in the district court. The district court granted the Forest Service's motion for summary judgment, and denied Lands Council's motion for summary judgment. Lands Council filed this appeal.²

STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir.1996). Section 706 of the Administrative Procedure Act (APA) governs judicial review of agency decisions under the NFMA and NEPA. 5 U.S.C. § 706; City of Sausalito v. O'Neill, 386 F.3d 1186, 1205 (9th Cir.2004) ("Because the statutes ... do not contain separate provisions for judicial review, our review is governed by the APA."). An agency's action must be upheld unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

"Review under the arbitrary and capricious standard is narrow and we do not substitute our judgment for that of the agency." Lands Council, 537 F.3d at 987 (internal quotations marks and brackets omitted) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir.2006), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). A decision is arbitrary and capricious "only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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." Lands Council, 537 F.3d at 987 (citations and internal quotation marks omitted). Agency action is valid if the agency "considered the relevant factors and articulated a rational connection between the facts found and the choices made." Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir.2008) (citations and internal quotation marks omitted).

Moreover, we generally must be "at [our] most deferential" when reviewing scientific judgments and technical analyses within the agency's expertise. See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). We are not to "act as a panel of scientists, instructing the agency, choosing among scientific studies, and ordering the agency to explain every possible scientific uncertainty." Lands Council, 537 F.3d at 988 (internal quotation marks and brackets omitted). And "[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Id. at 1000 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)).

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STATUTORY AND REGULATORY FRAMEWORK

A. The National Forest Management Act and Idaho Panhandle National Forest Plan

The Forest Service manages national forests pursuant to the NFMA. See 16 U.S.C. § 1604. The NFMA imposes both substantive and procedural requirements. The Forest Service is required to develop guidelines providing "for diversity of plant and animal communities." 16 U.S.C. § 1604(g)(3)(B). The Forest Service is also procedurally required to develop forest plans for each unit in the national forest system, which must meet the standards imposed by NFMA. 16 U.S.C. § 1604(a), (f). The IPNF Plan is one such plan.

Section 10(b) of the IPNF Plan provides that "[a]pproximately 10 percent of the Forest will be maintained in old growth as needed to provide for viable populations of old-growth dependent and management indicator species." U.S. Dep't of Agric., Forest Plan, Idaho Panhandle National Forests, at II-5 (1987). ³ Moreover, the IPNF Plan requires the Forest Service to "[m]anage the habitat of species listed in the Regional Sensitive Species List to prevent further declines in populations which could lead to federal listing under the Endangered Species Act." Id. at II-28. The Mission Brush Project is required to comply with the standards...