Seattle Audubon Soc. v. Moseley, s. 95-35052
| Decision Date | 10 April 1996 |
| Docket Number | 95-35214 and 95-35215,Nos. 95-35052,s. 95-35052 |
| Citation | 80 F.3d 1401 |
| Parties | , 26 Envtl. L. Rep. 20,980, 96 Cal. Daily Op. Serv. 2449, 96 Daily Journal D.A.R. 4131 SEATTLE AUDUBON SOCIETY; Washington Environmental Council; Washington Native Plants Society; Save the West; The Sierra Club, a non-profit corporation, Plaintiffs, and Native Forest Council, Plaintiff-Appellant, v. James R. MOSELEY, in his official capacity as Asst. Secretary of Agriculture; James Lyons, in his official capacity as Asst. Secretary of Agriculture for Natural Resources and Environment; United States Forest Service, an agency of the United States; Bureau of Land Management, an agency of the United States; Michael Espy, in his official capacity as Secretary of Agriculture; Bruce Babbitt, in his capacity as Secretary of the Interior, Defendants-Appellees, and Washington Contract Loggers Assoc.; Burgess Logging Co.; Lone Rock Timber Company, Inc.; Jackie Bryan Cox; Freres Lumber Company, Inc.; Norman V. Persons; A. Troy Reinhart; Gregory A. Miller; Northwest Forest Resource Council, Defendants-Intervenors. SEATTLE AUDUBON SOCIETY; Washington Environmental Council; The Sierra Club, a non-profit corporation; Native Forest Council, Plaintiffs, and Save The West; Forest Conservation Council, Plaintiffs-Appellants, v. James R. MOSELEY, in his official capacity as Asst. Secretary of Agriculture; James Lyons, in his official capacity as Asst. Secretary of Agriculture for Natural Resources and Environment; United States Forest Service, an agency of the United States; Bureau Of Land Management, Medford District, an agency of the United States; Michael Espy, in his official capacity as Secretary of Agriculture; Bruce Babbitt, in his capacity as Secretary of the Interior, Defendants-Appellees, and Washington Contract Loggers Assoc.; Burgess Logging Co.; Lone Rock Timber Company, Inc.; Jackie Bryan Cox; Freres Lumber Company, Inc.; Norman V. Persons; A. Troy Reinhart; Gregory A. Miller; Northwest Forest Resource Council, Defendants-Intervenors. SEATTLE AUDUBON SOCIETY; Washington En |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen M. Truitt, Washington, D.C., and John S. Karpinski, Vancouver, Washington, for plaintiff-appellant-cross-appellee Native Forest Council.
Peggy Hennessy, Reeves, Kahn & Eder, Portland, Oregon, for plaintiffs-appellants-cross-appellees Forest Conservation Council and Save the West.
Mark C. Rutzick, Mark C. Rutzick Law Firm, Portland, Oregon, for defendants-intervenors-appellants Northwest Forest Resource Council.
David C. Shilton, Environmental and Natural Resources Division, United States Department of Justice, Washington, D.C., for defendants-appellees.
Appeals from the United States District Court for the Western District of Washington; William L. Dwyer, District Judge, Presiding. No. CV-92-479-WLD.
Before: GOODWIN, SCHROEDER and PREGERSON, Circuit Judges.
All three of these appeals arise from challenges to the April 13, 1994 decision by the Secretaries of Agriculture and Interior to approve a plan to manage federal land with spotted owl habitat in the Pacific Northwest.
In appeals nos. 95-35052 and 95-35214, Native Forest Council, Forest Conservation Council and Save the West ("the environmental plaintiffs") appeal the district court's grant of summary judgment upholding the United States Forest Service and Bureau of Land Management's ("the federal defendants") Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within Range of the Northern Spotted Owl ("ROD"), adopted April 13, 1994. The district court's opinion is published at Seattle Audubon Society v. Lyons, 871 F.Supp. 1291 (W.D.Wash.1994) ("SAS"). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the district court.
The lengthy procedural history underlying these appeals is discussed at length in, inter alia, Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir.1991) and Seattle Audubon Soc'y v. Espy, 998 F.2d 699 (9th Cir.1993). District Judge Dwyer discusses fully the history and procedure underlying the appeals at issue here in his opinions. We need not repeat them in detail here, but will summarize briefly.
After our earlier opinions in cases in which environmental groups had sought to preserve the habitat of the northern spotted owl, President Clinton in April 1993 established the Forest Ecosystem Management Assessment Team ("FEMAT") to examine options and make recommendations to the Secretaries of Agriculture and Interior in aid of their joint development of a forest management plan to cover federal lands in the Pacific Northwest. After reviewing 48 possible strategies, FEMAT narrowed the field to ten alternatives and assessed each in a single environmental impact statement ("EIS") prepared jointly by the Forest Service and the Bureau of Land Management ("BLM"). The Secretaries of Agriculture and Interior adopted Alternative 9 on April 13, 1994. These challenges to the legality of that decision followed.
The environmental plaintiffs contend that the district court erred in concluding that the federal defendants considered a reasonable range of alternatives for managing old growth owl habitat. They further contend that the federal defendants failed to comply with the viability regulation of the National Forest Management Act because the selected alternative provides for only an 80% likelihood that listed species will continue to be viable after implementation of the selected alternative, and the resulting 20% likelihood of extinction is impermissible under the regulation. 16 U.S.C. § 1604(g)(3)(B); 36 C.F.R. § 219.19. The environmental plaintiffs further contend that the district court erred in holding that the federal defendants considered adequately the cumulative environmental impacts associated with their preparation of the Environmental Impact Statement and selection of Alternative 9. See National Forest Management Act ("NFMA"), 16 U.S.C. § 1604(f)(5); National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. These contentions fail for the reasons set forth below.
We first deal with the environmental plaintiffs' contention that the federal defendants failed to consider adequately a "no action" alternative, thereby failing to consider a reasonable range of alternatives in violation of NEPA. See 40 C.F.R. § 1502.14(d). Our review of the record leads us to conclude that the federal defendants fully evaluated a reasonable range of alternatives before making their final decision. An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives. See Resources Limited, Inc. v. Robertson, 8 F.3d 1394, 1401-02 (9th Cir.1993); Headwaters v. Bureau of Land Management, 914 F.2d 1174, 1180-81 (9th Cir.1990). Here, the federal defendants did consider a no harvest alternative as part of their preliminary discussion, but abandoned this alternative as inconsistent with their need to find a balance between competing uses. Moreover, the federal defendants' consideration of Alternative 1, which would have protected all old growth timber (less some salvage operations) provided a reasonable point of comparison for the other nine alternatives. Accordingly, the analysis performed by the federal defendants was adequate.
There is similarly little or no support for the environmental plaintiffs' contention that the selected alternative violates the applicable viability standards. The district court correctly explained that the selection of an alternative with a higher likelihood of viability would preclude any multiple use compromises contrary to the overall mandate of the NFMA. See SAS, 871 F.Supp. at 1315-16; see also 16 U.S.C. § 1604(g)(3)(B) (); 36 C.F.R. §§ 219.27(a)(6) (); 219.26 (provide for diversity consistent with multiple-use objectives); 219.27(a)(5) (). Here, the record demonstrates that the federal defendants considered the viability of plant and animal populations based on the current state of scientific knowledge. Because of the inherent flexibility of the NFMA, and because there is no showing that the federal defendants overlooked any relevant factors or made any clear errors of judgment, we conclude that their interpretation and application of the NFMA's viability regulations was reasonable. See Batterton v. Francis, 432 U.S. 416, 425-26, 97 S.Ct 2399, 2405-06, 53 L.Ed.2d 448 (1977) ().
Finally, the arguments advanced by the environmental plaintiffs...
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