Oregon Natural Resources Council Fund v. Brong

• Decision Date: 24 July 2007
• Docket Number: No. 05-35092.,No. 05-35063.,05-35063.,05-35092.
• Citation: 492 F.3d 1120
• Parties: OREGON NATURAL RESOURCES COUNCIL FUND; Klamath-Siskiyou Wildlands Center; Northwest Environmental Defense Center; Cascadia Wildlands Project; Umpqua Watersheds, Plaintiffs-Appellees, v. Elaine BRONG, State Director, Bureau of Land Management; A. Barron Bail, Acting Associate State Director, Bureau of Land Management, Defendants, and Timber Products Co., an Oregon limited partnership; Swanson Group, Inc., an Oregon corporation; American Forest Resource Council, an Oregon nonprofit corporation, Defendants-Intervenors-Appellants. Oregon Natural Resources Council Fund; Klamath-Siskiyou Wildlands Center; Northwest Environmental Defense Center; Cascadia Wildlands Project; Umpqua Watersheds, Plaintiffs-Appellees, v. Elaine Brong, State Director, Bureau of Land Management; A. Barron Bail, Acting Associate State Director, Bureau of Land Management, Defendants-Appellants, and Timber Products Co., an Oregon limited partnership; Swanson Group, Inc., an Oregon corporation; American Forest Resource Council, an Oregon nonprofit corporation, Defendants-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

492 F.3d 1120

OREGON NATURAL RESOURCES COUNCIL FUND; Klamath-Siskiyou Wildlands Center; Northwest Environmental Defense Center; Cascadia Wildlands Project; Umpqua Watersheds, Plaintiffs-Appellees, v. Elaine BRONG, State Director, Bureau of Land Management; A. Barron Bail, Acting Associate State Director, Bureau of Land Management, Defendants, and Timber Products Co., an Oregon limited partnership; Swanson Group, Inc., an Oregon corporation; American Forest Resource Council, an Oregon nonprofit corporation, Defendants-Intervenors-Appellants.

Oregon Natural Resources Council Fund; Klamath-Siskiyou Wildlands Center; Northwest Environmental Defense Center; Cascadia Wildlands Project; Umpqua Watersheds, Plaintiffs-Appellees, v. Elaine Brong, State Director, Bureau of Land Management; A. Barron Bail, Acting Associate State Director, Bureau of Land Management, Defendants-Appellants, and Timber Products Co., an Oregon limited partnership; Swanson Group, Inc., an Oregon corporation; American Forest Resource Council, an Oregon nonprofit corporation, Defendants-Intervenors.

No. 05-35063.

No. 05-35092.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2005.

Filed July 24, 2007.

Ellen J. Durkee, United States Department of Justice, Washington, D.C., argued and briefed the case for the federal appellants.

Scott W. Horngren and Julie A. Weis, Haglund, Kelley, & Horngren, Jones & Wilder LLP, Portland, OR, briefed the case, and Mr. Horngren argued the case for the intervenors-appellants.

Susan Jane Brown, Pacific Environmental Advocacy Center, Portland, OR, argued and briefed the case for the appellees.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. Nos. CV-04-00693-AA, CV-04-00693-ALA.

Before: JAMES R. BROWNING, D.W. NELSON, and DIARMUID F. O'SCANNLAIN, Circuit Judges.

Opinion by Judge D.W. NELSON; Dissent by Judge O'SCANNLAIN.

D.W. NELSON, Senior Circuit Judge:

Elaine Brong, Oregon State Director of the Bureau of Land Management ("BLM"), and other parties¹ appeal the district court's decision invalidating the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project ("Timbered Rock Project" or "Project"), a plan developed by the BLM to log nearly a thousand acres of protected land in southwest Oregon after a major forest fire. The district court held that the Timbered Rock Project violated both the Federal Land Policy and Management Act ("FLPMA") and the National Environmental Policy Act ("NEPA"). We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

Following a series of lightning strikes, on July 13, 2002, the Medford District of the BLM was devastated by the "Timbered Rock" fire. This fire burned approximately 12,000 acres of land in the district, all within an area known as the Elk Creek Watershed.² Under federal law, Elk Creek is a "Late-Successional Reserve," which entitles the area to heightened environmental protection.

Following the Timbered Rock fire, the BLM began considering a range of options of how to revitalize the Elk Creek area.³ The BLM considered the environmental impacts of various alternatives, ultimately devising the Timbered Rock Project. On August 15, 2003, the BLM announced the availability of a Draft Environmental Impact Statement for the Timbered Rock Project, and indicated that it would accept public comment until October 14, 2003. On January 30, 2004, the BLM made public the Project's Final Environmental Impact Statement ("Timbered Rock FEIS"), and on March 23, 2004, the BLM issued its Record of Decision for the Timbered Rock Project ("Timbered Rock ROD").

Pursuant to the Project, the BLM proposes to log more than 961 acres of environmentally-protected land affected by the fire. Timbered Rock ROD at 3. Of the 961 acres, 282 are designated as "research units" for investigating the influence of post-fire salvage and salvage intensity on wildfire response, while the remaining acreage is designated for area salvage. Id. As a whole, the Project would allow salvage of approximately 23.4 million board feet of timber to be sold to private companies. Id.

The Oregon Natural Resources Council and other parties (collectively "ONRC")⁴ challenged the Timbered Rock Project via an administrative protest filed on April 12, 2004. On May 18, 2004, the BLM responded to ONRC's protest and affirmed its decision to proceed with the Project. ONRC challenged the agency's decision in district court. ONRC argued that the BLM violated the Medford District Bureau of Resource Management Plan, as amended by the Northwest Forest Plan, which the BLM is required to follow pursuant to FLPMA. 43 U.S.C. § 1732; 43 C.F.R. § 1610.5-3(a). Specifically, ONRC alleged that the Project violated the Plan because it proposed the excessive removal of large diameter dead or dying trees, impermissible research logging, and timber removal in "non-suitable woodlands." ONRC also alleged that the BLM failed to designate properly certain areas as "riparian reserves."

ONRC also alleged the Project violated NEPA because (1) the BLM failed to analyze the cumulative effects of fire suppression activities, private salvage logging, and salvage logging in deferred watersheds, and (2) the BLM employed a flawed methodology by using an unreliable tool, known as the Decayed Wood Advisor ("DecAID"), to calculate the effect of the Project on certain species.⁵

On June 15, 2004, the district court granted ONRC's motion for a temporary restraining order. On November 10, 2004, the district court entered an opinion and order in favor of ONRC, and on November 23, 2004, it entered a judgment granting ONRC a permanent injunction. See Or. Natural Res. Council Fund v. Brong, No. Civ. 04-693-AA, 2004 WL 2554575 (D.Or. Nov.8, 2004). The BLM timely appealed.

II. STANDARD OF REVIEW

We review the BLM's compliance with FLPMA and NEPA de novo. See Or. Natural Res. Council v. U.S. Bureau of Land Mgmt., 470 F.3d 818, 820 (9th Cir.2006); Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 554 (9th Cir.2006). Decisions that allegedly violate NEPA and FLPMA are reviewed under the Administrative Procedure Act ("APA"), which "dictates that we should `hold unlawful and set aside agency action . . . [that is] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Natural Res. Def. Council v. Nat'l Marine Fisheries Serv., 421 F.3d 872, 877 (9th Cir.2005) (quoting 5 U.S.C. § 706(2)(A)).

While the APA requires that we not substitute our own judgment for that of the agency, it nevertheless requires us to "engage in a substantial inquiry" and a "thorough, probing, in-depth review." Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir.2005) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). As we have said before, "[t]o have not acted in an arbitrary and capricious manner, the agency must present a `rational connection between the facts found and the conclusions made.'" Id. (quoting Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 F.3d 1163, 1170 (9th Cir.2004)). Though we normally afford deference to an administrative agency's interpretation of its own regulations, "an agency's interpretation `does not control, where . . . it is plainly inconsistent with the regulation at issue.'" Id. (quoting Friends of Southeast's Future v. Morrison, 153 F.3d 1059, 1069 (9th Cir. 1998)).

III. THE FLPMA CLAIMS

The Federal Land Policy & Management Act, 43 U.S.C. §§ 1701-1785 (2006), establishes requirements for land use planning on public land. FLPMA requires that the BLM, under the Secretary of the Interior, "develop, maintain, and when appropriate, revise land use plans" to ensure that land management be conducted "on the basis of multiple use and sustained yield." 43 U.S.C. §§ 1701(a)(7), 1712(a); see also Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1067 (9th Cir.2002) (holding that FLPMA "requires the BLM to prepare [resource management plans] for the various districts under its control"). The process for developing, maintaining, and revising resource management plans is controlled by federal regulations at 43 C.F.R. §§ 1601.0-1610.8 (2006). Once a land use plan is developed, "[a]ll future resource management authorizations and actions ... shall conform to the approved plan." 43 C.F.R. § 1610.5-3(a).

The land use plan governing the Timbered Rock Project is the Medford District Resource Management Plan ("Medford RMP"), as amended significantly by the Northwest Forest Plan ("NFP" or "Plan").⁶ The BLM interpreted the NFP as permitting the Timbered Rock Project. For the following reasons, however, we disagree.

A. The BLM's Interpretation of the Northwest Forest Plan is Inconsistent with the Plan's Mandate to Prioritize the Maintenance and Preservation of Late-Successional Ecosystems.

Because the NFP embodies the substantive management directives with which the BLM must comply under FLPMA, our review must start with, and remain anchored in, an understanding of the NFP. A careful reading shows that while the NFP as a whole seeks to strike a balance between environmental protection and resource extraction, its management directives for specified reserve areas give priority to environmental concerns. The BLM's interpretation of the Plan is plainly inconsistent with these directives.

Consider the NFP's history. The Plan is a comprehensive response to a long and bitter legal battle over the scope of logging in old-growth forests, home to the endangered northern spotted owl. See Seattle Audubon Soc'y v. Lyons, 871 F.Supp. 1291, 1300-01 (W.D.Wa.1994), aff'd, Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir.1996) (per curiam). Indeed, "[i]t should be borne in mind that the NFP is not an ordinary government land-management strategy; instead, the history and care in its creation bespeak the massive effort that led to its birth." Gifford...