Native Ecosys. Council v. Tidwell
| Citation | 599 F.3d 926 |
| Decision Date | 09 March 2010 |
| Docket Number | No. 06-35890.,06-35890. |
| Parties | NATIVE ECOSYSTEMS COUNCIL; Alliance For the Wild Rockies Wildwest Institute, Plaintiffs-Appellants, v. Tom TIDWELL, in his official capacity as Northern Region Regional Forester; Bruce Ramsey, in his official capacity as Supervisor of the Beaverland-Deerlodge National Forest; Mark Petroni, in his official capacity as District Ranger of the Madison River Ranger District of the Beaverhead-Deerlodge National Forest; United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants-Appellees, Madison County; Beaverhead County, Montana, Defendants-intervenorsAppellees, Sitz Angus Ranch; Gary L. Clark; Moose Creek Grazing Association; Max L. Robinson, Sr.; Max J. Robinson, Jr.; Montana Stockgrowers Association; Montana Wool Growers Association, Intervenors-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
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Thomas J. Woodbury, Missoula, MT, on behalf of plaintiff-appellants Native Ecosystems Council, Alliance for the Wild Rockies, and Wildwest Institute.
Robert H. Oakley, Washington, D.C., on behalf of defendant-appellees Tom Tidwell Bruce Ramsey, Mark Petroni, and the United States Forest Service.
John E. Bloomquist, Helena, MT, on behalf of intervenor-appellees Sitz Angus Ranch, Gary L. Clark, Moorse Creek Grazing Association, Max L. Robinson Sr. Max L. Robinson, Jr., Montana Stockgrowers Association, and Montana Wool Growers.
Appeal from the United States District Court for the District of Montana. D.C No. CV-04-00127-DWM.
Before: ALEX KOZINSKI, Chief Judge, B. FLETCHER, and JOHNNIE B. RAWLINSON, Circuit Judges.
Opinion by Judge RAWLINSON Dissent by Chief Judge KOZINSKI.
Plaintiffs-Appellants Native Ecosystems Council, Alliance for the Wild Rockies, and Wildwest Institute (collectively NEC) appeal the district court's summary judg-ment in favor of Defendants-Appellees Tom Tidwell, Brace Ramsey, Mark Petroni, and the United States Forest Service (collectively Forest Service); DefendantsIntervenors-Appellees Madison County and Beaverhead County; and IntervenorsAppellees Sitz Angus Ranch, Gary L Clark, Moose Creek Grazing Association, Max L. Robinson Sr., Max L. Robinson, Jr., Montana Stockgrowers Association, and Montana Wool Growers Association; (collectively Intervenors-Appellees). NEC argues that the district court erred in finding that Forest Service approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest complies with the Forest Service's obligation to ensure species diversity as required under the National Forest Management Act (NFMA). It also contends that the district court erred in concluding that the Environmental Assessment undertaken by the Forest Service project satisfied the National Environmental Policy Act (NEPA). We agree with NEC on both counts. Because the Forest Service's environmental assessment was based on a nonexistent management indicator species (MIS), its habitat proxy analysis was not reliable. The Forest Service also failed to take the requisite "hard look" at the project as required by NEPA. We therefore reverse the district court's summary judgment in favor of the Forest Service, and remand for further proceedings consistent with this opinion.
The Antelope Basin/Elk Lake project area is in the Beaverhead-Deerlodge National Forest (BDNF) in Southwest Montana. The project area is approximately 48, 000 acres and forms the southeast portion of the Gravelly Mountain Range. Most of the project area is open, mountain sagebrush/grasslands with some scattered timber along streams.
Three Forest Service activities have most affected the sagebrush ecosystem in the project area: 1) herbicide application to control sagebrush densities;2 2) burning to control sagebrush densities;3 and 3) livestock grazing. Sheep and cattle have grazed a majority of the project area over the past century.
As part of a settlement agreement in an unrelated case, the Forest Service agreed to a schedule for completing NEPA environmental analyses and decisions for the authorization of livestock grazing and associated resource protection measures. The Environmental Assessment at issue in this case contains the NEPA analysis underlying some of the livestock allotments listed in the agreed-upon schedule.
The project area was divided into eleven grazing allotments. The project proposed updating AMPs for these eleven allotments. The updated allotments would determine "where livestock can graze, when grazing would occur and what specificguidelines would be established to regulate the intensity of grazing." As of the time of the proposal, the prior AMPs for all eleven allotments were ten years or older.
The proposal specifically identified the goals established in the BDNF Land Resource Forest Plan (Forest Plan)4 which governed the proposed project. These goals included maintaining a sufficient number of diverse habitats to support native wildlife and providing opportunities for grazing by domestic livestock without compromising extant forest resources. The proposal also stated that no further "sage brush control measures" such as burning or herbicides are contemplated in the project area in the near future.
The Forest Service prepared an initial Environmental Assessment for the proposed AMPs, and issued a revised Environmental Assessment after receiving public comments. The revised Environmental Assessment specifically addressed concerns regarding the project's impact on sage grouse, as well as other sagebrush habitat obligates. The Environmental Assessment considered three options for updating the AMPs: (1) Alternative A, which continued the status quo; (2) Alternative B, the preferred alternative, which modified the AMPs to protect riparian habitat while allowing grazing;5 and (3) Alternative C, which banned grazing altogether. The United States Fish and Wildlife Service issued a Biological Evaluation con cluding that adoption of the preferred alternative was not likely to adversely affect or jeopardize the continued existence of any listed species.
In November, 2003, District Ranger Mark Petroni released a Decision Notice and Finding of No Significant Impact (DN/FONSI) reflecting the administrative decision to proceed with Alternative B The DN/FONSI concluded that the project was not a major federal action with significant effect on the quality of the human environment, and therefore no Environmental Impact Statement (EIS) was warranted under NEPA.
To facilitate its goals of wildlife diversity, the governing Forest Plan designates certain wildlife as "management indicator species" (MIS). These species are monitored to measure the effect of various activities on corresponding wildlife habitats. The objective of monitoring the MIS is to ensure the viability of wildlife species existing in the forest. The sage grouse is one such MIS for the sagebrush wildlife habitat.
The sage grouse is entirely dependent on sagebrush ecosystems. The sage grouse population in southwestern Montana has trended downward for the past decade. There are no identified active sage grouse leks in the project area.6 Theclosest known active lek is approximately eleven miles west of the project area. See A Review of USFS Management Activities and Their Relationship to Sage grouse in the Antelope Basin/Elk Lake Area of Southwestern Montana, J.W. Connelly (September, 2004) (hereinafter, "Connelly Review"). In the past fifteen years, only two possible sage grouse sightings have been noted in the project area.
Approximately 21, 000 acres (40% of the project area) are considered to have potential sage grouse habitat. Only 1, 900 acres are considered to have potential sage grouse nesting and early brood rearing habitat.
B. Supplemental Information Report
In December 2004, the Forest Service issued a Supplemental Information Report ("SIR") concerning the sage grouse, and specifically discussed information that had been released after the Environmental Assessment. The SIR evaluated the findings of three primary works as they related to the proposed project: (1) Conservation Assessment of Greater Sage grouse and Sagebrush Habitats, J.W. Connelly, S.T Knick, M.A. Schroeder and S.J. Stiver, Western Association of Fish and Wildlife Agencies (June 2004) (hereinafter, "Conservation Assessment"); (2) Management Plan and Conservation Strategies for Sagegrouse in Montana—Final Draft Plan, Montana Sage grouse Work Group (March, 2004); and (3) habitat modeling completed in 2004 by the Forest Service surveying active and inactive sage grouse leks in the vicinity of the project area.
To inform its analysis, the Forest Service requested that Connelly undertake a site-specific review of the project area in light of the new information concerning the sage grouse. Connelly's findings were documented in the September, 2004 Connelly Review. The review concluded that the Environmental Assessment's conclusions were
After considering the newly available information and the Connelly Review, the District Ranger determined that the Environmental Assessment's conclusions remained accurate. The SIR retained the determination of minimal effects to sage grouse from project implementation, and did not recognize a need to further revise the Environmental Assessment or prepare an EIS.
D. Procedural Background
NEC filed an administrative appeal of the District Ranger's decision that no EIS was warranted. Then-Regional Forester, Abigail Kimbell, upheld the District Ranger's decision.
After NEC filed a complaint in district court seeking declaratory and injunctive relief, each party moved for summary judgment. The district court granted summary judgment to...
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