Docket Nº:0135827
Case Date:April 01, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit





NATIVE ECOSYSTEMS COUNCIL, a non-profit corporation; BEAR CREEK COUNCIL, a non-profit corporation, Plaintiffs-Appellants, v. MICHAEL DOMBECK, in his official capacity as Chief of the U.S. Forest Service; DANIEL GLICKMAN, in his capacity as Secretary of Agriculture; KEMPTER M. MCMASTER, in his official capacity as United States Fish & Wildlife Service Montana Field Supervisor; DAVID GARBER, in his official capacity as Supervisor of the Gallatin National Forest; BRUCE BABBITT, in his official capacity as Secretary of the Interior, Defendants-Appellees.

No. 01-35827; D.C. No. CV-99-00160-JDS


Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, District Judge, Presiding

Argued and Submitted April 1, 2002—Seattle, Washington

Filed September 16, 2002

Before: Dorothy W. Nelson, David R. Thompson and Richard A. Paez, Circuit Judges.

Opinion by Judge D. W. Nelson;

Partial Concurrence and Partial Dissent by Judge Thompson


Jory C. Ruggiero, Beck, Richardson & Amsden, Bozeman, Montana, for the plaintiffs-appellants.

Thomas L. Sasonetti, Attorney General’s Office, and David C. Shilton, Katherine J. Barton, Department of Justice, Wash-ington, D.C., for the defendants-appellees.


D. W. NELSON, Circuit Judge:

Plaintiff environmental groups Native Ecosystems Council and Bear Creek Council (collectively, "Bear Creek") seek review of a timber sale slated to occur on national forest lands in Montana. They appeal the district court’s grant of summary judgment in favor of defendants, who are officials within the United States government responsible for approving the timber sale.

We have jurisdiction under 28 U.S.C. § 1291. Because the United States Forest Service did not consider the cumulative impacts of some aspects of the sale sufficiently to satisfy the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and did not comply with the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., we reverse.


The Darroch-Eagle timber sale is proposed to occur on 226 acres of the Gallatin National Forest in Montana, located on the northern boundary of Yellowstone National Park. The project area supports grizzly bears, bighorn sheep, elk, mule deer, moose, mountain lions, and wolves, among other wildlife. The sale would harvest approximately 2.1 million board feet of timber.

The proposed sale is part of a larger, Congressionally-authorized program to provide funding to acquire about 55,000 acres of privately-held land within the borders of the Gallatin National Forest. See Gallatin Land Consolidation Act of 1998, Pub. L. No. 105-267, 112 Stat. 2371 (1998). Through this act, Congress authorized the Forest Service to buy particular parcels of private land in exchange for approximately 31,700 acres of federal land, $4.15 million in federal and private funds, and $4.5 million in receipts from timber sales. Id. at § 4(a). To fund the timber sale contribution to the program, Congress directed the Secretary of Agriculture to "implement a timber program . . . to generate sufficient timber receipts." Id. at § 4(c). The Darroch-Eagle timber sale, the only sale in dispute here, is one of approximately twelve sales earmarked to provide receipts for the land exchange. Together, these proposed sales constitute the Gallatin II Timber Sale Program. All are slated to occur within the Gallatin National Forest.

The Gallatin National Forest is managed in accordance with the Gallatin National Forest Plan ("Forest Plan"), adopted pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600 et seq. Because Bear Creek focuses part of its challenge on the proposed sale’s treatment of road density, we summarize the sale’s effects on roads, and the Forest Plan’s requirements for road density, in some detail. The Forest Plan contains a maximum road density standard to be achieved throughout the forest. This standard is quantified by a Habitat Effectiveness Index, or HEI. An indicator of how open roads and motorized trails might affect habitat use by elk, the HEI represents the percentage of an analysis area that is available for use by elk. The larger the HEI for any given area, the fewer the roads.

The Forest Plan requires that an HEI of 70% be maintained throughout the forest, and the Forest Service interprets this requirement to mean that it must achieve a 70% HEI following timber sales, even if doing so necessitates closing roads.

The challenged Darroch-Eagle sale calls for the construction of about 0.6 miles of new road and the reconstruction of 4.4 miles of existing road to access the harvest areas. Within two years of the sale, the Forest Service plans to close all newly constructed and reopened roads. However, as the Forest Service concedes, the road mileage that would remain open after the sale violates the Gallatin Forest Plan standard for road density following a timber sale. After the sale, the site will have an HEI of about 53%, not 70% as required.

For the Darroch-Eagle sale to comply with the Forest Plan’s HEI standard, the Forest Service would have to close about nine to eleven miles of road after the timber sale was complete. Conceding this, but stating that such closure was not "necessary nor is it a reasonable requirement for a single

timber sale entry," the Forest Service chose to adopt a site-specific amendment to the Forest Plan waiving the HEI requirement for this sale. The government argues that the road density at the project site after the sale will be almost the same as the road density before the sale. Nevertheless, the road density amendment will effectively relieve the Forest Service of its duty under the Forest Plan, triggered by the timber sale, to close between nine and eleven miles of road.

The Forest Service anticipates that many of the other Galla-tin II Timber Sale Program sales also will fail to meet the Gal-latin Forest Plan’s standards for road density, and it expects that they, too, will require site-specific amendments to the plan’s road density standard. At the time the parties filed their briefs, two of the remaining eleven or so sales (in addition to Darroch-Eagle) had final Decision Notices published, and both included a road density standard amendment. All environmental assessments for Gallatin II sales included in the record contain proposals to amend the road density standard.

In July 1999, Bear Creek Council and Native Ecosystems Council filed administrative appeals challenging the Darroch-Eagle timber sale. See 36 C.F.R. Part 215 (2001). The appeals officer denied both appeals and affirmed the Forest Supervisor’s decision to go ahead with the sale. The appeals officer’s decision constitutes the final administrative determination of the Department of Agriculture.

Bear Creek filed this action in federal district court on November 24, 1999, naming as defendants the Chief of the United States Forest Service, the Supervisor of the Gallatin National Forest, and various other federal officials. Bear Creek alleged in the district court many violations of NEPA, NFMA, and ESA, most of which have been abandoned on appeal. The district court granted the federal defendants’ motion for summary judgment in its entirety.

Before this court, plaintiffs continue to challenge two aspects of the Forest Service’s approval of the Darroch-Eagle

timber sale. First, they argue that the defendants violated NEPA and NFMA by deciding to amend the Forest Plan’s road density standard to allow more roads to remain open following the sale than the Forest Plan would otherwise permit. Second, they argue that defendants violated the ESA by failing to consider the presence of a nearby sheep grazing allotment when evaluating the sale’s effect on grizzly bears.


We review de novo the grant of summary judgment. See Hall v. Norton, 266 F.3d 969, 975 (9th Cir. 2001). Judicial review of agency decisions under NEPA, NFMA, and the ESA is governed by the Administrative Procedure Act ("APA"), which specifies that an agency action may be overturned only where it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see Idaho Sporting Congress v.

Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (applying arbitrary and capricious standard to NEPA and NFMA claims); Pacific Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (applying arbitrary and capricious standard to ESA claims).


I. Timing of NEPA review

NEPA, 42 U.S.C. §§ 4321 et seq., requires the preparation of a detailed environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (1994). Federal regulations permit an agency that is planning a major federal action to conduct a less exhaustive Environmental Assessment ("EA") to determine whether the proposed action will "significantly affect" the environment and thus whether an EIS is required. 40 C.F.R. §§ 1501.4(b), 1508.9 (2001). Here, the Forest Service issued an EA for the timber sale in

March 1999, which included a brief discussion of the need for a road density amendment. Two months later the Forest Service issued a decision notice approving the sale, as well as a finding that the sale would not significantly affect the environment so as to require an EIS.

Plaintiffs challenge the timing of this NEPA review. Specifically, Bear Creeks argues that the Forest Service decided to amend the Forest Plan road density standard for the Darroch-Eagle site before analyzing the environmental effects of such an amendment under NEPA. If true, the Forest Service violated NEPA, which requires that an assessment "be prepared early enough so that it can serve...

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