Native Ecosystems Council v. U.S. Forest Service

• Decision Date: 07 November 2005
• Docket Number: No. 04-35274.,04-35274.
• Citation: 428 F.3d 1233
• Parties: NATIVE ECOSYSTEMS COUNCIL, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Dwight Chambers, acting supervisor, Helena National Forest; Kathleen McAllister, Acting Regional Forester for Region One U.S. Forest Service; Dale Bosworth, Chief of United States Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

428 F.3d 1233

NATIVE ECOSYSTEMS COUNCIL, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Dwight Chambers, acting supervisor, Helena National Forest; Kathleen McAllister, Acting Regional

Forester for Region One U.S. Forest Service; Dale Bosworth, Chief of United States Forest Service, Defendants-Appellees.

No. 04-35274.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2005.

Filed November 7, 2005.

Thomas J. Woodbury, Forest Defense, P.C., Missoula, MT, for the plaintiff-appellant.

Elizabeth Ann Peterson, Attorney, Environmental & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-01-00188-DWM.

Before B. FLETCHER, McKEOWN, and GOULD, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

Native Ecosystems Council ("Native Ecosystems") appeals the district court's grant of summary judgment to the United States Forest Service ("Forest Service") in connection with the Forest Service's approval of the Jimtown Vegetation Project ("Jimtown Project") in the Helena National Forest. To lower the potential for a catastrophic fire, the Jimtown Project involves thinning, prescribed burning, and weed management on approximately 1,500 acres in an area of the Helena National Forest prone to high intensity fires.

Native Ecosystems claims the Forest Service violated the National Environmental Policy Act ("NEPA"),¹ 42 U.S.C. § 4321 et seq., by preparing an Environmental Assessment ("EA") instead of an Environmental Impact Statement ("EIS") and by considering only two alternatives—the proposed Jimtown Project and a "no action" alternative. In addition, Native Ecosystems claims the Forest Service violated the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., because the project threatens the forest-wide viability of the northern goshawk.² We affirm.

BACKGROUND

The Helena National Forest encompasses nearly one million acres in western Montana. The Forest Service manages the Helena National Forest according to the 1986 Helena Forest Plan. See 16 U.S.C. § 1604(a). Parts of the Helena National Forest consist of dry ponderosa pine stands, and are characterized by the Forest Service as "fire dependent ecosystems." Over the past ninety years, however, the Forest Service suppressed fires in this ecosystem, leading to what it describes as "dense stocking and intense competition for moisture and nutrients on these sites." In the Forest Service's view, prevention of low-intensity, periodic fires has led to an increase in the likelihood of large, stand-replacing fires. Because forests are more dense, fires spread from small understory trees to the crowns of the older overstory trees, rather than burning at a low-intensity on the floor and understory of the forest.

Due to nearly a century of fire suppression, the Forest Service has witnessed an increase in stand-replacing wildfires in the Northwest. In December 2000, the Forest Service published an EA for the Jimtown Project, a resource management project in the Helena National Forest designed to reduce the potential for a large-scale, high intensity, stand-replacing fire in the Jimtown vicinity. According to the Forest Service, a fire in the vicinity of the Jimtown Project—the July 2000 Cave Gulch fire which burned more than 27,000 acres of the Helena National Forest—evidences the area's potential for "intense and extensive stand replacing fires."³ The Jimtown Project, as originally proposed, consisted of forest thinning through timber harvest, low-intensity underburning, and weed management, all of which are intended to provide for a more sustainable forest.

The proposed Jimtown Project lies just 150 yards north of a nest area used by a pair of northern goshawks in the summers of 2000 and 2002. The Forest Service has designated goshawks as a sensitive species,⁴ a designation that requires the Forest Service to prepare a Biological Evaluation to consider the potential impact of proposed forest management actions on the goshawks.

The Forest Service completed a Biological Evaluation for the Jimtown Project, and concluded that the project "[m]ay impact individuals or habitat but [is] unlikely to contribute to a trend towards Federal listing or cause a loss of viability to the population or species." In particular, the proposed Jimtown Project would "open up" 720 acres of forest habitat, making it less attractive to goshawks for foraging. The Biological Evaluation also concluded that the primary threat to goshawks is loss of habitat due to logging and fire. The Biological Evaluation noted that an "[e]levated risk of stand-replacement fire would remain" if the Forest Service decided to forego the Jimtown Project, putting existing goshawk habitat in the area at risk. The Jimtown Project EA incorporated the Biological Evaluation's goshawk findings.

The Helena National Forest Plan also designated goshawks as a management indicator species for old-growth forest in the Helena National Forest. Forest Service planning regulations direct the Forest Service to select management indicator species for the purpose of monitoring the effects of management activities in various types of habitat. 36 C.F.R. § 219.19(a)(1), (6) (2000).⁵ The Forest Plan requires the maintenance of five percent of the Helena National Forest as old growth. The Jimtown Project does not include any old growth, but the EA emphasized that the Forest Service will retain larger trees and trees "with old growth character," and suggested that the Jimtown Project would contribute to the development of a sustainable old-growth forest in the project area.

After considering comments filed in response to the Jimtown Project EA, including comments filed by Native Ecosystems, the Forest Service issued a Decision Notice and Finding of No Significant Impact ("DN/FONSI") in May 2001. In the DN/FONSI, the Forest Service partially rested its decision not to prepare an EIS on the fact that the Forest Service prepared an EIS in 1996 for a substantially similar and larger management project in the Helena National Forest—the Bull-Sweats Project. The Bull-Sweats Project was located about four miles north of the Jimtown Project and applied the same treatment techniques to an area more than two-times the size of the Jimtown Project area. The Forest Service noted in the DN/FONSI that environmental monitoring associated with the Bull-Sweats Project demonstrated that the type of treatments proposed in the Jimtown Project "do not have significant effects."⁶ In particular, the Forest Service concluded based on wildlife monitoring that goshawks continued to nest in the vicinity of the Bull-Sweats Project after the project treatments.

The DN/FONSI also included an amendment to the Helena National Forest Plan. The project area, whether the Forest Service implements the Jimtown Project or opts for the no-action alternative, is out of compliance with the Helena National Forest Plan's hiding cover/road density standard designed to protect big game.⁷ The proposed amendment reduces the hiding cover/road density standard applicable to the project area by three percent, thus curing non-compliance.

Native Ecosystems filed an administrative appeal challenging the DN/FONSI, which the Forest Service denied. In October 2001, Native Ecosystems filed suit in federal court in Montana. In July 2003, while the case was pending in district court, a wildfire burned portions of the Jimtown Project area. One-thousand acres burned in the Jimtown fire, and approximately eighty percent of the trees died or were expected to die within the year following the fire. The fire burned about 370 acres of the 830 acres proposed for thinning and underburning in the proposed Jimtown Project. The Forest Service published a Supplemental Information Report ("SIR") that concluded that the Jimtown Fire, and the subsequent reduction of the thinning and underburning portion of the project to 460 acres, did not change its conclusion that the Jimtown Project would not have a significant effect on the environment.

The district court granted the Forest Service's motion for summary judgment. With respect to the claims pending on appeal, the district court rejected Native Ecosystems's claim that the Forest Service violated NEPA by failing to consider reasonable alternatives to the Jimtown Project in addition to the EA's "no action" alternative and the proposed project alternative.⁸ The district court also determined that the Forest Service did not act arbitrarily and capriciously in concluding that the Jimtown Project would not impact goshawk viability under NFMA and in concluding that an EIS was not necessary to consider the impacts of the project on the goshawk population.

ANALYSIS

I. STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Neighbors of Cuddy Mountain v. U.S. Forest Serv. ("Neighbors of Cuddy Mountain I"), 137 F.3d 1372, 1376 (9th Cir.1998). Because NFMA and NEPA do not provide a private cause of action to enforce their provisions, agency decisions allegedly violating NFMA and NEPA are reviewed under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq.; Neighbors of Cuddy Mountain v. Alexander ("Neighbors of Cuddy Mountain II"), 303 F.3d 1059, 1065, 1067 (9th Cir.2002). Under the APA, we may set aside an agency decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.1998).

II. NEPA CLAIMS

NEPA requires agencies to prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA's implementing regulations provide that an agency shall prepare...