Lands Council v. Powell

• Citation: 379 F.3d 738
• Decision Date: 13 August 2004
• Docket Number: No. 03-35640.,03-35640.
• Parties: The LANDS COUNCIL, a Washington nonprofit corporation; Kootenai Environmental Alliance, an Idaho nonprofit corporation; The Ecology Center, a Montana nonprofit corporation; Idaho Sporting Congress, Inc., an Idaho nonprofit corporation, Plaintiffs-Appellants, v. Bradley POWELL, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the United States, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

379 F.3d 738

The LANDS COUNCIL, a Washington nonprofit corporation; Kootenai Environmental Alliance, an Idaho nonprofit corporation; The Ecology Center, a Montana nonprofit corporation; Idaho Sporting Congress, Inc., an Idaho nonprofit corporation, Plaintiffs-Appellants, v. Bradley POWELL, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the United States, Defendants-Appellees.

No. 03-35640.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 30, 2004.

Filed August 13, 2004.

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Thomas J. Woodbury, Forest Defense P.C., Missoula, MT, for the plaintiffs-appellants.

Ronald M. Spritzer, Environmental and Natural Resources Division, United States Department of Justice, Washington, DC, 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-02-00517-EJL.

Before CANBY, WARDLAW, and GOULD, Circuit Judges.

GOULD, Circuit Judge.

Appellants Lands Council, Kootenai Environmental Alliance, Ecology Center, and Idaho Sporting Congress, Inc. (collectively "the Lands Council") challenge the timber harvest approved by the United States Forest Service ("Forest Service") as part of a "watershed restoration" project in the Idaho Panhandle National Forest ("the Forest" or "IPNF"). The district court granted summary judgment in favor of the Forest Service, finding that it had complied with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA") and the National Forest Management Act, 16 U.S.C. § 1601 et seq. (NFMA), and thus did not act arbitrarily and capriciously by approving the plan. For the reasons discussed below, we reverse the decision of the district court and grant summary judgment in favor of Lands Council.

I

The Lands Council contests a decision of the United States Forest Service to proceed with Modified Alternative Eight of the Iron Honey Project ("Project"). The Project area is at the headwaters of the Little North Fork of the Coeur d'Alene River, and the fourteen watersheds within the Project area account for one-fifth of the watershed¹ of the Little North Fork. In the Little North Fork watershed, 39,977 acres of National Forest have been logged since 1960. As a result of this intense logging, all but two of the fourteen watersheds within the Project area either are not functioning or are functioning at risk. The Project is designed to improve the aquatic, vegetative, and wildlife habitat in the Project area. Stated another way, this is a project designed to restore nature's balance in the watersheds within the Project area.² This is no easy task because of past environmental degradation. Nonetheless, the Lands Council is troubled that the selected alternative allows the logging of 17.5 million board feet of lumber from 1,408 acres of the Idaho Panhandle National Forest in order to fund the project.

The Forest Service began scoping³ the Project in 1996 as a watershed restoration project. In April 2000, a Draft Environmental Impact Statement for the Project was released. After receiving comments, the Final Environmental Impact Statement was released in November 2001. The Final Environmental Impact Statement included several alternatives. In February 2002, the Supervisor of the IPNF issued a Record of Decision that selected Modified Alternative Eight. Modified Alternative Eight anticipates creating 17.5 million board feet of commercial lumber by shelterwood⁴ harvesting of 1,408 acres. Modified Alternative Eight would also build 0.2 miles of new road, 2 miles of temporary road, and reconstruct 29 miles of already existing roads.

The Lands Council filed an administrative appeal with the Regional Forester of Region One of the Forest Service. The appeal was denied on May 15, 2002.

The Lands Council then commenced this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., seeking review of the project on grounds that the Project violates NEPA and NFMA. As part of the action, the Lands Council attempted to supplement the administrative record by deposing an employee of the United States Geological Survey. The Forest Service filed a motion to quash, and following briefing on the question, the United States District Court for the District of Idaho quashed the subpoena and prohibited the Lands Council from offering evidence outside of the administrative record. On subsequent cross-motions for summary judgment, the district court granted summary judgment to the Forest Service. This appeal timely followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

II

We review the district court's decision to grant summary judgment de novo with all facts read in the light most favorable to the non-moving party. Covington v. Jefferson County, 358 F.3d 626, 641 n. 22 (9th Cir.2004). Because this is a record review case, we may direct that summary judgment be granted to either party based upon our de novo review of the administrative record. Cf. Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995) ("De novo review of a district court judgment concerning a decision of an administrative agency means we review the case from the same position as the district court."). Under the APA, we will reverse the agency action only if the action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. 5 U.S.C. § 706(2).⁵ An agency's action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), or if the agency's decision is contrary to the governing law. 5 U.S.C. § 706(2).

III

The Lands Council first challenges the NEPA analysis conducted by the Forest Service. The Lands Council asserts that the Forest Service did not comply with the requirements of NEPA when the Forest Service prepared an incomplete Environmental Impact Statement. The Lands Council urges error both in the Forest Service's cumulative effects analysis of the Project and in the scientific methodology employed by the Forest Service.

A

NEPA was passed by Congress to protect the environment by requiring that federal agencies carefully weigh environmental considerations and consider potential alternatives to the proposed action before the government launches any major federal action.

NEPA imposes procedural requirements, but not substantive outcomes, on agency action. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). For any proposed major federal action, and it is not disputed that the Project qualifies as such, NEPA requires the agency to prepare an Environmental Impact Statement. 42 U.S.C. § 4332. "NEPA requires that a federal agency consider every significant aspect of the environmental impact of a proposed action ... [and] inform the public that it has indeed considered environmental concerns in its decisionmaking process." Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1300 (9th Cir.2003) (internal quotation marks omitted). "In order to accomplish this, NEPA imposes procedural requirements designed to force agencies to take a `hard look' at environmental consequences." Id.

B

Cumulative effects analysis requires the Final Environmental Impact Statement to analyze the impact of a proposed project in light of that project's interaction with the effects of past, current, and reasonably foreseeable future projects. See 40 C.F.R. § 1508.7. The Lands Council contends that the Final Environmental Impact Statement did not take a "hard look" at the cumulative effects of the Project in four areas: (1) prior timber harvests; (2) reasonably foreseeable future timber harvests; (3) the possibility of toxic sediment transport; and (4) impact on Westslope Cutthroat Trout. The Forest Service argues that its review of all issues was sufficient and that it properly "analyzed the impact of a proposed project in light of that project's interaction with the effects of past, current, and reasonably foreseeable future projects." See 40 C.F.R. § 1508.7. Upon consideration, we conclude that the Forest Service failed to take its required "hard look" with respect to prior timber harvests and the impact on the Westslope Cutthroat Trout.

1. Prior Timber Harvests

The Lands Council first argues that the Final Environmental Impact Statement section on the cumulative impacts of past timber harvests is "particularly vague and lacking in any detailed discussion" because the Forest Service did not note in detail past timber harvesting projects and the impact of those projects on the Little North Fork watershed. We agree. The Final Environmental Impact Statement generally describes the past timber harvests, gives the total acres cut, with types of cutting, per decade, and asserts that timber harvests have contributed to the environmental problems in the Project area. But there is no catalog of past projects and no discussion of how those projects (and differences between the projects) have harmed the environment. Apart from a map in the Project file that shows past harvests, with general notes about total acres cut per watershed, there is no listing of individual past timber harvests. Moreover, there is no discussion of the connection between individual harvests and the prior environmental harms from those harvests that the Forest Service now acknowledges. Instead, the Final Environmental Impact Statement contains only vague discussion of the general impact of prior timber harvesting, and no discussion of the environmental impact from past projects on an...