Neighbors of Cuddy Mountain v. Alexander

Decision Date05 September 2002
Docket NumberNo. 01-35184.,01-35184.
Citation303 F.3d 1059
PartiesNEIGHBORS OF CUDDY MOUNTAIN; Idaho Sporting Congress, Inc.; The Ecology Center, Plaintiffs-Appellants, v. David ALEXANDER, Supervisor, Payette National Forest; United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants-Appellees, and Boise Cascade Corporation, Defendant-Intervenor.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas J. Woodbury, Boise, ID, for the plaintiffs-appellants.

John C. Cruden, Attorney General's Office, and Pamela S. West, Ellen J. Durkee, Tamara N. Rountree, Department of Justice, Washington, DC, for the defendants-appellees.

Bruce M. Smith, Moore Smith Buxton & Turcke, Chtd., and William R. VanHole, Boise Cascade Corp., Boise, ID, for the defendant-intervenor-appellee.

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. CV-00-00247-EJL.

OPINION

D.W. NELSON, Circuit Judge.

Plaintiff environmental groups Neighbors of Cuddy Mountain, The Ecology Center, and Idaho Sporting Congress (collectively, "Neighbors") appeal the district court's dismissal of their action challenging a timber sale on national forest land in Idaho. Neighbors asserts that the United States Forest Service ("Forest Service") violated the National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, when it approved a timber sale in the Grade and Dukes Creek area ("the Grade/Dukes sale") in Payette National Forest ("Payette").

We have jurisdiction under 28 U.S.C. § 1291. Although the timber sale is now complete, we conclude that Neighbors' challenge to the sale is not moot because effective relief may still be granted. We reverse the district court's dismissal of Neighbors' NFMA claims, affirm its dismissal of Neighbors' NEPA claims, and remand.

I. BACKGROUND
A.

The Forest Service's decisions regarding Payette are governed by NFMA, which sets forth a statutory framework for the management of our national forests. See Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998) (Neighbors I). NFMA first requires the Forest Service to develop a Land Resources Management Plan (commonly known as a forest plan) for the entire forest. Id.; 36 C.F.R. § 219.10(a), (b).1 The Forest Service is then required to ensure that the forest is managed in compliance with the forest plan. See 36 C.F.R. § 219.10(e). Specific projects, such as the Grade/Dukes timber sale, must be analyzed by the Forest Service and the analysis must show that each project is consistent with the plan. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e).

NFMA requires that the Forest Service "provide for diversity of plant and animal communities" in managing national forests. 16 U.S.C. § 1604(g)(3)(B). Section 219.19 of Volume 36 of the Code of Federal Regulations, one of the many regulations promulgated to ensure such diversity, states that wildlife habitat

shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be mum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area provided to support, at least, a mini

. . . .

The Forest Service prepared a forest plan (the "Forest Plan") for the 2.3 million acre Payette in 1988. Among other things, the Forest Plan requires that a certain percentage of old growth habitat be retained in Payette. Old growth consists of the oldest trees in the forest, and it is characterized by several parameters set forth in the Forest Plan, including density and canopy closure. A number of animal species in Payette rely on old growth habitat, including the pileated woodpecker, flammulated owl, great gray owl, and northern goshawk. These species are sometimes referred to as old growth species.

To protect viable populations of old growth species as NFMA requires, the Forest Service employs a "proxy on proxy approach" in Payette, monitoring and protecting old growth habitat in an effort to safeguard old growth species. See Idaho Sporting Cong. v. Rittenhouse, ___ F.3d. ___, 2002 WL 31056605 (9th Cir.2002) (describing this approach); Inland Empire Pub. Lands Council v. United States Forest Serv., 88 F.3d 754, 761 (9th Cir.1996) (approving the use of this approach under the circumstances of that case). The Forest Plan designates the pileated woodpecker as the Management Indicator Species for old growth habitat. A management indicator species "is used as a bellweather... for the other species that have the same special habitat needs or population characteristics." Inland Empire, 88 F.3d at 762 n. 11. The Forest Service then monitors the habitat of the management indicator species, which is mature and old growth forest in the case of the pileated woodpecker. By studying the result of a timber sale on the habitat of the pileated woodpecker, the Forest Service attempts to estimate its effects on all old growth species.

Because Neighbors challenges the Forest Service's treatment of old growth species and habitat under the Forest Plan, some detail concerning the Forest Plan's old growth requirements is necessary. Under the plan, the habitat of the pileated woodpecker is maintained as follows. Circles that are ten miles in diameter are drawn evenly over the forest to estimate the theoretical home range of the pileated woodpecker. There are sixty-one of these circles in Payette. Within each circle, the Forest Plan requires the Forest Service to "retain a minimum of 5 percent mature or old growth forest, of which 2.5 percent must be old growth ... within each ... home range.... Old growth must be at least 30 acres in size." The Forest Plan also sets forth a monitoring requirement for the condition of circles across the forest. The plan states that at least ninety-five percent of the circles in the forest must contain six percent or more of old growth and mature forest. If fewer than ninety-five percent of the circles meet the six percent criteria, the Forest Plan requires that there be further evaluation or a change in management direction.

In contrast to NFMA, NEPA exists to ensure a process, not to mandate particular results. See Inland Empire, 88 F.3d at 758. It requires agencies of the federal government to prepare an Environmental Impact Statement ("EIS") "whenever they propose to undertake any `major Federal action [] significantly affecting the quality of the human environment.'" Id. (quoting 42 U.S.C. § 4332(2)(C)) (alteration in original). The goal of NEPA is two-fold: (1) to ensure that the agency will have detailed information on significant environmental impacts when it makes decisions; and (2) to guarantee that this information will be available to a larger audience. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).

B.

The Grade/Dukes timber sale has a long procedural history, most of which is set forth in detail in Neighbors I. See Neighbors I, 137 F.3d at 1375-76. The Forest Service first approved a timber sale in the Grade and Dukes Creek area of Payette in 1991. After several groups brought a successful administrative appeal of the decision, the Regional Forester reversed the Forest Service's approval of the sale and ordered the Forest Service to conduct further environmental review, including a review of how the project would affect various species.

The Forest Service responded with a Supplemental EIS ("SEIS") and re-approved the sale in 1994. Neighbors believed that the SEIS was also insufficient and sought judicial review in federal district court, alleging, inter alia, that the Forest Service had failed to demonstrate that the timber sale complied with the old growth and mature-tree standards of the Forest Plan, and to address sufficiently the cumulative impacts of the sale as required by NEPA. The district court granted summary judgment for the Forest Service.

On appeal, we reversed the district court. See Neighbors I, 137 F.3d at 1378. We held that the SEIS for the Grade/ Dukes timber sale was insufficient for three reasons. First, the Forest Service did not demonstrate that sufficient old growth would remain in each pileated woodpecker circle after the sale, as required by the Forest Plan. Id. at 1377-78. Second, the Forest Service failed to evaluate adequately the cumulative impact of three other planned sales. Id. at 1378-79. Third, the Forest Service failed to take the requisite "hard look" at whether and how it might mitigate the impact of the logging. Id. at 1380-81. We remanded to the Forest Service for further environmental study and enjoined any further logging at Grade/Dukes pending the required review.

On remand, the Forest Service completed a Second Supplemental EIS ("SSEIS") to address our concerns in Neighbors I. The Forest Service determined that the proposed sale would affect directly only one pileated woodpecker circle, Circle 3. Citing on-the-ground surveys of the forest, the SSEIS concludes that even after the sale, Circle 3 and the several circles adjacent to it would continue to meet the 2.5 percent old growth standard set forth in the Forest Plan, with Circle 3 containing 2.8 percent old growth. The SSEIS also contains a cumulative impacts analysis that accounts for the west side of the forest, covering circles one through twenty. It concludes that nineteen of the twenty circles on the west side would continue to meet the 2.5 percent old...

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