Natural Resources v. U.S. Forest Service

• Citation: 421 F.3d 797
• Decision Date: 05 August 2005
• Docket Number: No. 04-35868.,04-35868.
• Parties: NATURAL RESOURCES DEFENSE COUNCIL; Southeast Alaska Conservation Council; Sierra Club; National Audubon Society; The Wilderness Society; Center for Biological Diversity, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; U.S. Department of Agriculture; Mark Rey; Dennis E. Bschor; Forrest Cole, Defendants-Appellees, State of Alaska; Alaska Forest Association, Defendants-Intervenors-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

421 F.3d 797

NATURAL RESOURCES DEFENSE COUNCIL; Southeast Alaska Conservation Council; Sierra Club; National Audubon Society; The Wilderness Society; Center for Biological Diversity, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE; U.S. Department of Agriculture; Mark Rey; Dennis E. Bschor; Forrest Cole, Defendants-Appellees, State of Alaska; Alaska Forest Association, Defendants-Intervenors-Appellees.

No. 04-35868.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 15, 2005.

Filed August 5, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas S. Waldo and Eric P. Jorgensen, Earthjustice, Juneau, AK, and Nathaniel S.W. Lawrence, Natural Resources Defense Council, Olympia, WA, for the plaintiffs-appellants.

Thomas L. Sansonetti, Assistant Attorney General, Andrew C. Mergen, Bruce M. Landon, David C. Shilton, and Elizabeth Ann Peterson, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Steve Silver and Ruth Hamilton Heese, Robertson, Monagle & Eastaugh, Juneau, Alaska, and Gregg Renkes, Attorney General for State of Alaska, and Zachary Falcon, Assistant Attorney General for State of Alaska, for the defendants-intervenors.

Appeal from the United States District Court for the District of Alaska, James K. Singleton, Chief Judge, Presiding.

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

GOULD, Circuit Judge:

Plaintiffs-Appellants Natural Resources Defense Council, Southeast Alaska Conservation Council, Sierra Club, National Audubon Society, The Wilderness Society, and Center for Biological Diversity (collectively "NRDC") appeal the district court's final judgment in favor of Defendants-Appellees United States Forest Service, United States Department of Agriculture, and certain government employees acting in their official capacity,¹ dismissing administrative and environmental law challenges to the 1997 Revision to the Tongass Land Management Plan (Plan). We must decide the legality of the Plan adopted and the process used by the Forest Service.

NRDC claims that a Forest Service error that doubled the projected market demand for Tongass timber² rendered the Plan for the Tongass National Forest arbitrary and capricious, in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and rendered arbitrary and capricious the Forest Service's conclusion that timber goals justified the risk that the Plan may not ensure viable, well-distributed populations of wildlife, as required by former 36 C.F.R. § 219.19 (2000).³ NRDC also claims that the market-demand error rendered misleading the Plan's final Environmental Impact Statement (EIS), in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. NRDC further challenges the EIS on grounds that the Forest Service did not consider an adequate range of alternatives and failed to consider the cumulative impacts of "highgrading."⁴

The government Appellees argue that under section 335 of the 2003 Omnibus Appropriations Act, we lack jurisdiction to review the Forest Service's decision to adopt the Plan. Alternatively, they contend that the Plan was not arbitrary because the inflated market demand projections did not influence the Forest Service's decision to adopt the Plan. The Intervenors argue that, if NRDC prevails on the merits, injunctive relief is inappropriate in this case because NRDC cannot show irreparable harm to its interests, while the interests of the Intervenors will be irreparably harmed if an injunction is in place.

We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I

Created in 1907 by President Theodore Roosevelt,⁵ the Tongass National Forest is an immense forest located in Southeast Alaska comprised of mainland and many islands within the Alexander Archipelago. The Tongass is the nation's largest national forest, and the largest unspoiled and intact temperate rainforest in the world, containing almost seventeen million acres and occupying about seven percent of Alaska's area.⁶

The National Forest Management Act (NFMA) requires the Forest Service to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). As we have explained, NFMA embraces concepts of "multiple use" and "sustained yield of products and services," obligating the Forest Service to "balance competing demands on national forests, including timber harvesting, recreational use, and environmental preservation." Lands Council v. Powell, 379 F.3d 738, 742 n. 2 (9th Cir.2004) (quoting 16 U.S.C. § 1607 and citing 16 U.S.C. §§ 528-31), amended and superseded by 395 F.3d 1019 (9th Cir.2005).

The original plan for the Tongass was approved in 1979, and has since been amended twice, once in 1986 and again in 1991. By law, forest plans must be revised at least every fifteen years, or sooner if changed conditions warrant a revision. 16 U.S.C. § 1604(f)(5) (2004). The Record of Decision (ROD) for the revised Plan at issue in this appeal was adopted in May 1997. The initial "paper version" of the Plan's EIS as released in January 1997. The EIS was updated in May 1997.

During the public process of revising the Tongass Plan, Congress passed the Tongass Timber Reform Act (TTRA), which imposed additional planning requirements for the Tongass. Among the requirements, Congress imposed a unique duty on the Forest Service to consider the "market demand" for timber:⁷

Subject to appropriations, other applicable law, and the requirements of the National Forest Management Act of 1976 (Public Law 94-588), except as provided in subsection (d) of this section, the Secretary shall to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources, seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle.

16 U.S.C. § 539d(a). The exception in subsection (d) provides that "the Secretary need not consider economic factors in the identification of lands not suited for timber production." Id. § 539d(d).

During the planning process for the 1997 Revision to the Tongass Land Management Plan, the Forest Service used the analysis of economists David Brooks and Richard Haynes to determine the market demand for Tongass timber, and to assess whether the Plan would supply enough timber to meet that demand, in accord with the Forest Service's statutory obligations. Over an eight-year period, Brooks and Haynes prepared four reports with projections of the market demand for Tongass timber.

The updated 1997 Brooks and Haynes report was the most recent demand study available to the Forest Service. The report gives three scenarios—low, medium, and high—to display a range of future average demand for Tongass timber during the upcoming decade. The alternate scenarios are predicated on variations in Alaskan timber's competitiveness, Alaskan timber's share of the Japanese market, and Alaskan mills' share of the U.S. domestic market.

The 1997 Brooks and Haynes report projected a low scenario of 68 million board feet per year (MMBF/year), a medium scenario of 110 MMBF/year, and a high scenario of 154 MMBF/year. Prior reports projected nearly double this demand, but were revised downward due to changed circumstances, such as the closing of local pulp mills, a weaker Japanese market, and a decline in Alaska's competitive position.

The Forest Service misinterpreted the 1997 Brooks and Haynes market demand projection within the published ROD and EIS. The Forest Service incorrectly thought that the projection numbers refer only to "sawlogs suitable for producing lumber," when they actually refer to "total National Forest harvest, including both net sawlog and utility volume."⁸ Because of the Forest Service's error, the ROD and EIS project an average market demand for Tongass timber nearly double that which Brooks and Haynes projected. The projected demand scenarios used by the ROD and EIS are 130 MMBF/year (low), 212 MMBF/year (medium), and 296 MMBF/year (high).

The ROD and EIS examined ten alternatives in detail. The Forest Service adopted Alternative 11⁹ because it "best responds to multiple needs, including ensuring a healthy forest habitat and providing a sustainable supply of goods and services including timber." Alternative 11 allocates 3.9 million acres to development land use designations (LUDs) that allow logging, and 60% of this allocation (2.4 million acres) is currently roadless area. Alternative 11 also establishes an average "Allowable Sale Quantity" (ASQ)¹⁰ of 267 MMBF/ year for the next decade.¹¹ Although the ASQ represents a ceiling on allowable timber sales, the ROD states that "the public can expect the amount of timber to be offered annually to vary between 200 MMBF or less and 267 MMBF."

Regulations in force when the Plan was adopted required the Forest Service to "maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 36 C.F.R. § 219.19 (2000). The Forest Service enlisted panels of specialists to rate the degree of risk to wildlife viability posed by each of the Alternatives assessed by the ROD and EIS. The level of risk was gauged for several species by placement into one of five "Outcome" scenarios.¹² The Forest Service determined that placement of a species into Outcomes I or II would always meet the concept of "viable and well distributed" as required by NFMA regulations, and that placement of a species into Outcome III may, for some species, sometimes meet the regulatory requirement.¹³ Thus, the likelihood of maintaining a species' viability is "expressed as being greater than the sum of likelihood scores for Outcomes I and II, but less than the sum of likelihood scores for Outcomes I, II, and III."¹⁴ The ROD...