Pacific RiversCouncil v. U.S. Forest Serv.

• Decision Date: 20 June 2012
• Docket Number: No. 08–17565.,08–17565.
• Citation: 74 ERC 2041,689 F.3d 1012,2012 Daily Journal D.A.R. 8308
• Parties: PACIFIC RIVERS COUNCIL, Plaintiff–Appellant, v. UNITED STATES FOREST SERVICE; Mark Rey, in his official capacity as Under Secretary of Agriculture; Dale Bosworth, in his capacity as Chief of the United States Forest Service; Jack Blackwell, in his official capacity as Regional Forester, Region 5, United States Forest Service, Defendants–Appellees, and California Forestry Association; American Forest & Paper Association; Quincy Library Group; Plumas County; California Ski Industry Association, Defendants–intervenors–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

689 F.3d 1012

74 ERC 2041

2012 Daily Journal D.A.R. 8308

PACIFIC RIVERS COUNCIL, Plaintiff–Appellant,

v.UNITED STATES FOREST SERVICE; Mark Rey, in his official capacity as Under Secretary of Agriculture; Dale Bosworth, in his capacity as Chief of the United States Forest Service; Jack Blackwell, in his official capacity as Regional Forester, Region 5, United States Forest Service, Defendants–Appellees,andCalifornia Forestry Association; American Forest & Paper Association; Quincy Library Group; Plumas County; California Ski Industry Association, Defendants–intervenors–Appellees.

No. 08–17565.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 10, 2010.

Filed June 20, 2012.

Brian Gaffney, Lippe Gaffney Wagner, San Francisco, CA, Babak Naficy, San Luis Obispo, CA, for the appellant.

Cynthia S. Huber, Joan M. Pepin, U.S. Department of Justice, Washington, D.C., Barclay T. Samford, U.S. Department of Justice, Denver, CO, David Taylor Shelledy, Office of the U.S. Attorney, Sacramento, CA, for the appellees.

J. Michael Klise, Thomas Richard Lundquist, Crowell & Moring, LLP, Washington, D.C., Steven P. Rice, Crowell & Moring, LLP, Irvine, CA, Michael B. Jackson, Quincy, CA, for the intervenors-appellees.

Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding. D.C. No. 2:05–cv–00953–MCE–GGH.

Before: STEPHEN REINHARDT, WILLIAM A. FLETCHER and N. RANDY SMITH, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge N.R. SMITH.

ORDER

This court's opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir.2012), is withdrawn, and is replaced by the attached Opinion and Dissent.

With the filing of the new opinion, Judges Reinhardt and W. Fletcher vote to deny the petition for rehearing and the petition for rehearing en banc. Judge N.R. Smith votes to grant the petition for rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are DENIED.

No further petitions for rehearing or rehearing en banc will be accepted.

OPINION

W. FLETCHER, Circuit Judge:

The national forests of the Sierra Nevada Mountains (“the Sierras”) are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded: “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra.”

The national forests in the Sierras are managed under eleven Forest Plans (“the Forest Plans”). In January 2001, the United States Forest Service (“Forest Service”) issued a Final Environmental Impact Statement (“2001 EIS”) recommending amendments to the Forest Plans in the Sierras. The amendments were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. In January 2001, under the administration of President Clinton, the Forest Service adopted a modified version of the preferred alternative recommended in the 2001 EIS. The parties refer to this as the 2001 Framework.

In November 2001, under the administration of newly elected President Bush, the Chief of the Forest Service asked for a review of the 2001 Framework. In January 2004, the Forest Service issued a Final Supplemental Environmental Impact Statement (“2004 EIS”) recommending significant changes to the 2001 Framework. The Forest Service adopted the preferred alternative in the 2004 EIS. The parties refer to this as the 2004 Framework.

Plaintiff–Appellant Pacific Rivers Council (“Pacific Rivers”) brought suit in federal district court challenging the 2004 Framework as inconsistent with the National Environmental Protection Act (“NEPA”) and the Administrative Procedure Act (“APA”). The gravamen of Pacific Rivers' complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians. On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service's analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service's analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.

I. Background

Stretching along a north-south axis for more than 400 miles, the Sierra Nevada Mountains form one of the longest continuous mountain ranges in the lower 48 states. The Forest Service manages nearly 11.5 million acres of land under the Forest Plans. Each Forest Plan is a Land and Resource Management Plan (“LRMP”) formulated and promulgated pursuant to the National Forest Management Act (“NFMA”). See16 U.S.C. § 1604. NFMA requires the Forest Service to provide for and to coordinate multiple uses of the national forests, including “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). An LRMP adopted pursuant to NFMA guides all management decisions within the forests subject to that LRMP. Individual projects are developed according to the guiding principles and management goals expressed in the LRMP. See Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 729–31, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).

The Forest Plans govern the eleven national forests that run the length of the Sierras from Southern California to the California–Oregon border—the Sequoia, Inyo, Sierra, Stanislaus, Humboldt–Toiyabe, Eldorado, Tahoe, Plumas, Lassen, and Modoc National Forests, and the Lake Tahoe Basin Management Unit. The area encompassed by the Plan amounts to more than 5% of the total forest land managed by the Forest Service. See http:// www. fs. fed. us/ r 5/ sierra/ about/ (National Forests encompass 191 million acres). The forests support substantial economic activity, including logging and grazing, as well as recreation. The forests comprise dozens of complex ecosystems. They include iconic natural landmarks such as Mt. Whitney, Mono Lake, Lake Tahoe, and giant sequoia trees.

As part of its mandate to manage the national forests, the Forest Service took major steps in the 1990s to improve the ecological health of the Sierras. In November 1998, the Forest Service published a Notice of Intent to prepare an Environmental Impact Statement (“EIS”) analyzing a number of proposed changes to the Forest Plans for the Sierras. The Forest Service cited the need to “improve national forest management direction for five broad problems: (1) conservation of old-forest ecosystems, (2) conservation of aquatic, riparian, and meadow ecosystems, (3) increased risk of fire and fuels buildup, (4) introduction of noxious weeds, and (5) sustaining hardwood forests.”

In 2000, after nearly a decade of study, the Forest Service proposed a number of changes to the Forest Plans to ensure “the ecological sustainability of the entire Sierra Nevada ecosystem and the communities that depend on it.” The Forest Service issued a Draft EIS evaluating eight alternatives for implementing the objectives outlined in the Notice of Intent. Following public comment, scientific review and consultation with other agencies, the Forest Service released a Final EIS in January, 2001.

The 2001 EIS designated the “Modified Alternative 8” as the preferred alternative. In a Record of Decision issued January 12, 2001, the Forest Service adopted this alternative. This is the “2001 Framework.”

The Forest Service received over 200 timely administrative appeals. The Chief of the Forest Service, newly appointed by the incoming administration, did not respond directly to the appeals. Rather, he directed the Regional Forester to reevaluate the 2001 Framework with respect to three fire-related issues. First, the Chief directed him “to re-evaluate the decision for possibilities of more flexibility in aggressive fuels treatment.” Second, he directed him “to re-evaluate the decision based on possible new information associated with the National Fire Plan,” a ten-year strategy developed by Congress, federal agencies, Indian Tribes and western States to restore fire-adapted ecosystem health. Third, he directed him to re-evaluate limitations placed by the 2001 Framework on the Herger–Feinstein Quincy Library Group Forest pilot project dealing with fire prevention.

In December 2001, the Regional Forester appointed an Amendment Review Team. The Regional Forester added nonfire-related issues to the issues identified by the Chief. In addition to the fire-related issues, he asked the Review Team to “identify opportunities” in three areas: first, to “reduce the unintended and adverse impacts [of the 2001 Framework] on grazing permit holders”; second, to “reduce the unintended and adverse impacts [of the 2001 Framework] on recreation users and permit holders”; and, third, to “reduce the unintended and adverse impacts [of the 2001 Framework] on local communities.”

In June 2003, the Forest Service issued a Draft Supplemental EIS, based on the work of the Review Team. The Draft focused on a comparison of two alternatives. “Alternative S1” was the 2001 Framework. “Alternative S2” was the “preferred alternative.” Alternative S2 proposed substantially more logging and associated activities than the 2001 Framework. It also proposed to reduce restrictions on grazing by commercial and recreational livestock.

The Draft was criticized by the staff of the Forest Service's Washington Office for Watershed, Fish, Wildlife, Air and Rare Plants. The staff wrote a letter complaining that there was no discussion of the effects of the...