Neighbors of Cuddy Mountain v. U.S. Forest Service

• Decision Date: 04 March 1998
• Docket Number: No. 97-35654,97-35654
• Citation: 137 F.3d 1372
• Parties: , 28 Envtl. L. Rep. 21,073, 98 Cal. Daily Op. Serv. 1527, 98 Daily Journal D.A.R. 2155 NEIGHBORS OF CUDDY MOUNTAIN and Idaho Sporting Congress, Inc., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendant-Appellee, and Boise Cascade Corporation, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1372

137 F.3d 1372

46 ERC 1456, 28 Envtl. L. Rep. 21,073,

98 Cal. Daily Op. Serv. 1527,

98 Daily Journal D.A.R. 2155

NEIGHBORS OF CUDDY MOUNTAIN and Idaho Sporting Congress, Inc., Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, an agency of the United States

Department of Agriculture, Defendant-Appellee,

and

Boise Cascade Corporation, Intervenor-Appellee.

No. 97-35654.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1997.

Decided March 4, 1998.

Thomas J. Woodbury, Boise, Idaho, for plaintiffs-appellants.

D. Marc Haws, Boise, Idaho, for defendant-appellee.

William R. VanHole, Boise, Idaho, for intervenor-appellee.

Appeal from the United States District Court for the District of Idaho; Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. 96-0553-S-MHW.

Before: FLETCHER and O'SCANNLAIN, Circuit Judges and SCHWARZER, ^* District Judge.

FLETCHER, Circuit Judge:

Plaintiffs seek to enjoin the sale of timber in the Cuddy Mountain area of Payette National Forest. They claim that the United States Forest Service (Forest Service), in determining whether such a sale could go forward, violated the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. They appeal the district court's grant of summary judgment in favor of the Forest Service, and appeal the district court's decision to allow Boise Cascade Corporation to intervene as a defendant.

We have jurisdiction, 28 U.S.C. § 1291, and we reverse and remand to the Forest Service.

I.

Plaintiffs seek to enjoin the Grade/Dukes timber sale in the Cuddy Mountain area of Payette National Forest (Payette) in Idaho. Plaintiffs are two not-for-profit groups, Neighbors of Cuddy Mountain and Idaho Sporting Congress (collectively, Neighbors), who seek to protect the environment in the Cuddy Mountain area. Neighbors challenges the Forest Service's analysis of the potential environmental impacts of the sale, contending that the Forest Service failed to comply with the substantive requirements of the NFMA, and failed to comply with the procedural requirements of NEPA. The defendant is the Forest Service. Boise Cascade Corporation, the company that was awarded the Grade/Dukes timber contract, was allowed to intervene as a defendant.

The Forest Service began investigating the sale of timber from the Grade/Dukes area of Cuddy Mountain in the late 1980's. The evaluation of the impact of the Grade/Dukes sale contained in the first Environmental Impact Statement released in 1990, recommended that the Forest Service be allowed to proceed with the Grade/Dukes Timber Sale. See Grade/Dukes Timber Sale in Cuddy Mountain Roadless Area Final Environmental Impact Statement (1990) (hereinafter, 1990 EIS). The Forest Supervisor issued his first Record of Decision, to proceed with the logging project, on August 6, 1991.

Following a challenge by a number of groups, the Deputy Regional Forester reversed the Forest Supervisor's decision and ordered the Forest Service to supplement the 1990 EIS with additional information. Specifically, the Forest Service was directed to provide more thorough analyses of how the project would affect various species in the project area and to complete biological evaluations (or show why they were not needed) as to a number of species. Additionally, the Forest Service was directed to review the cumulative effects of other proposed timber sales.

A supplemental EIS was completed in 1994, entitled Grade/Dukes Timber Sale Final Supplemental Environmental Impact Statement (February 1994) (hereinafter, 1994 SEIS). A second Record of Decision, again approving the sale but with some modifications, was issued in February, 1994. The decision involves the sale of 18.8 million board feet of timber.

On April 6, 1994, Neighbors appealed the second decision. Neighbors was notified in February, 1995 that the Regional Forester denied this appeal. While the appeal was pending, but before Neighbors was notified of the denial of its appeal, the Forest Service selected a contractor, Boise Cascade Corporation, which began logging in August, 1994.

Neighbors commenced this action in district court in December, 1996. The magistrate judge ¹ granted Boise Cascade's motion to intervene as a matter of right, based on its status as the successful bidder in the Grade/Dukes sale. The court then granted summary judgment in favor of the defendant and intervenor, concluding that the Forest Service had analyzed sufficiently the impact of the proposed sale pursuant to the NFMA and NEPA. The defendant and intervenor also had asked the magistrate judge to dismiss Neighbors' action, arguing that the case was moot and barred by the equitable doctrine of laches. At the time the suit was brought, the road into the Grade/Dukes area had already been built and 30 percent of the logging completed. The magistrate judge declined to reach the laches issue because he had granted summary judgment in favor of the defendant and intervenor.

II.

We review de novo the district court's grant of summary judgment. Oregon Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th Cir.1997). Agency actions challenged under the NFMA are reviewed to determine if they were arbitrary and capricious, an abuse of discretion, or not in accordance with the law. Id. This applies to an agency's interpretations of its own regulations, and, "[t]his is especially true when questions of scientific methodology are involved." Inland Empire Public Lands Council v. U.S. Forest Serv., 88 F.3d 754, 760 (9th Cir.1996).

For actions challenging the adequacy of an EIS, brought under NEPA, we employ a rule of reason to determine whether the EIS contains a "reasonably thorough discussion of the significant aspects of probable environmental consequences." Lowe, 109 F.3d at 526. Under this standard, review consists only of insuring that the agency took a "hard look." Id.

The rule of reason analysis and the review for an abuse of discretion are essentially the same. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 n. 23, 109 S.Ct. 1851, 1861 n. 23, 104 L.Ed.2d 377 (1989).

III.

The NFMA creates a statutory framework for the management of our national forests. It provides a two-step process for forest planning. Inland Empire, 88 F.3d at 757. The NFMA first requires the Forest Service to develop a Land Resource Management Plan (LRMP) and an EIS for the entire forest. Id.; 36 C.F.R. § 219.10(a), (b). A LRMP and EIS were prepared for Payette in May, 1988. Implementation of the LRMP occurs at the site-specific level. Thus, once the LRMP is in place, site-specific projects, such as the Grade/Dukes timber sale, are assessed by the Forest Service. Id.; 36 C.F.R. § 219.10(e). That assessment produced the two EIS's in the case at hand, as well as the supporting documents.

At both stages, NEPA imposes procedural requirements. For example, the need to prepare an EIS and the process by which an EIS is prepared is dictated by NEPA. See 40 C.F.R. Part 1501 et seq. The NFMA imposes substantive requirements at both stages, such as the need to insure biological diversity. See 36 C.F.R. Part 219, et seq.

A site-specific decision, such as one to sell timber, must be consistent with the LRMP for the larger area. See Inland Empire, 88 F.3d at 757; 16 U.S.C. § 1604(i) ("Resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans."); 36 C.F.R. § 219.10(e).

Neighbors' claims are based on alleged failures of the Forest Service to abide by the procedural and substantive requirements of the NFMA and NEPA in conducting the analysis for the Grade/Dukes sale. On appeal, plaintiffs raise a number of specific arguments related to the Forest Services's decision. Neighbors is particularly concerned that the Grade/Dukes sale, alone and in combination with other timber sales in the Cuddy Mountain Roadless area, will greatly deplete the small amount of old growth habitat that remains in Payette. Old growth consists of the oldest trees in the forest, specifically, "mixed conifer, or grand-fir stand having: at least 15 trees/acre greater than 21 inches DBH, an average of .5 or more snags/acre greater than 21 DBH, two or more canopy levels, a canopy closure greater than 70 percent, and some trees with heart rot." ² Old growth is the exclusive habitat for a number of species within Payette.

Neighbors is also concerned with the impact of this sale on fisheries in the area. We agree that the Forest Service has violated the NFMA by failing to insure that the Grade/Dukes sale is consistent with the Payette LRMP, and has failed to provide the requisite "hard look" mandated by NEPA. ³

A.

Pursuant to the NFMA, the Forest Service must demonstrate that a site-specific project would be consistent with the land resource management plan of the entire forest. 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10(e) ("[T]he Forest Supervisor shall ensure that ... all outstanding and future permits, contracts, cooperative agreements, and other instruments ... are consistent with the [land management] plan.").

The Payette LRMP, developed in 1988, requires that a certain percentage of old growth habitat be retained in Payette. A number of species in Payette rely on old growth habitat, including the pileated woodpecker, flammulated owl, great gray owl, and northern goshawk. The pileated woodpecker is the "management indicator species" for old growth habitat. A management indicator species "is used as a bellwether ... for the other species that have the same special habitat needs or populations characteristics." Inland Empire, 88 F.3d at 762 n. 11. Thus, by studying the result of the sale on the habitat for the pileated woodpecker, the Forest Service can estimate the effect of the sale on other old growth-dependent species. See 36 C.F.R. § 219.19(a)(1).

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