Selkirk Conservation Alliance v. Forsgren

• Decision Date: 17 July 2003
• Docket Number: No. 02-35635.,02-35635.
• Citation: 336 F.3d 944
• Parties: SELKIRK CONSERVATION ALLIANCE, a non-profit public interest group; Sierra Club, a non-profit public interest group; Kettle Range Conservation Group, a non-profit public interest group; Idaho Conservation League, a non-profit public interest group; Pend Oreille Environmental Team, a non-profit public interest group, Plaintiffs-Appellants, v. Harv FORSGREN, in his official capacity as Regional Forester of the Pacific Northwest Region; Dale Bosworth, in his official capacity as Chief of the U.S. Forest Service; Susan Martin, in her official capacity as Supervisor of the Upper Columbia Office of U.S. Fish & Wildlife Service; Steve Williams, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants-Appellees, Stimson Lumber Company, Defendant-Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 944

SELKIRK CONSERVATION ALLIANCE, a non-profit public interest group; Sierra Club, a non-profit public interest group; Kettle Range Conservation Group, a non-profit public interest group; Idaho Conservation League, a non-profit public interest group; Pend Oreille Environmental Team, a non-profit public interest group, Plaintiffs-Appellants, v. Harv FORSGREN, in his official capacity as Regional Forester of the Pacific Northwest Region; Dale Bosworth, in his official capacity as Chief of the U.S. Forest Service; Susan Martin, in her official capacity as Supervisor of the Upper Columbia Office of U.S. Fish & Wildlife Service; Steve Williams, in his official capacity as Director of the U.S. Fish & Wildlife Service, Defendants-Appellees, Stimson Lumber Company, Defendant-Intervenor-Appellee.

No. 02-35635.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 9, 2002.

Filed July 17, 2003.

COPYRIGHT MATERIAL OMITTED

Douglas L. Honnold and Timothy J. Preso, Earthjustice Legal Defense Fund,

Bozeman, MT, for plaintiffs-appellants Selkirk Conservation Alliance, et al.

Stephanie Tai, United States Department of Justice, Washington, D.C., for the federal defendants-appellees.

Scott W. Horngren, Haglund Kirtley Kelley Horngren & Jones LLP, Portland, OR, for defendant-appellee Stimson Lumber Company.

Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior United States District Judge, Presiding. D.C. No. CV-01-01511-PA.

Before: BROWNING, FISHER, and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

The issue in this case is whether federal agencies adequately followed our environmental laws both procedurally and substantively in approving a road-building project for Stimson Lumber Company ("Stimson"). Stimson sought an easement in order to access its land surrounded by the Colville National Forest. This forest is home to several threatened or endangered species. Once Stimson has access to its land, it will manage it for perpetual logging.

The United States Forest Service ("Forest Service"), in granting the easement to Stimson, was required to complete an Environmental Impact Statement ("EIS"). The Forest Service and the United States Fish and Wildlife Service ("Fish & Wildlife") had to ensure that granting the easement would not jeopardize the continued existence of any animal species. Both the EIS and the no-jeopardy determination demanded that the Forest Service and Fish & Wildlife contemplate the "cumulative impacts" of the easement on the land and animals in the area. Selkirk Conservation Alliance and other environmental groups ("Selkirk") contend that the decision to grant the easement was arbitrary and capricious because the agencies failed to consider cumulative impacts and that Fish & Wildlife did not rely on the best information available in determining the likely harm to species. The district court granted summary judgment in favor of Stimson, the Forest Service, and Fish & Wildlife, and dismissed the claims brought by Selkirk challenging the project. We affirm.¹

I

A

Stimson owns six parcels of land in the LeClerc Creek watershed in northeast Washington State within the Colville National Forest ("Colville"), approximately 2,240 acres in total. Such parcels of land are called "inholdings." Five of these parcels are entirely surrounded by Colville land, and the only reasonable access route to the sixth parcel is over the Colville land. For this reason, Stimson's predecessor-in-interest, Plum Creek Timber Company, asked the Forest Service to provide access to the inholdings. The Forest Service responded by proposing to grant an easement across Colville land (the "Stimson Project").²

The Forest Service authorized construction of 1.88 miles of new road and reconstruction of 0.81 miles of old road on Forest Service land within the Colville. Once the Stimson Project is completed, Stimson plans to build at least 15.4 miles of inholding road and harvest 1,577 acres on Stimson's privately owned forest lands accessed by the easement.

The land to be accessed by the Stimson Project lies within the Selkirk Mountains. The Selkirk Mountains straddle the Washington-Idaho border and extend north into the Canadian Rockies. This area hosts approximately 50 grizzly bears and contains about 6 percent of the grizzly-bear-occupied range in the continental United States. In an attempt to monitor and support this grizzly bear population, the Selkirk Mountains are divided into ten Bear Management Units ("BMUs"). The LeClerc BMU is one of these areas. The Interagency Grizzly Bear Committee, which demarked the bear management units, considered that each unit would provide an appropriate area in which to monitor and analyze the bears. The entire Stimson Project and the lands it will reach fall within the LeClerc BMU.

In connection with the Stimson Project, the Forest Service sought formal consultation with Fish & Wildlife in 1993. Fish & Wildlife evaluated the Stimson Project's impact on threatened or endangered species and created a draft biological opinion in 1994 that found the easements would place some species in jeopardy. The draft opinion stated that "the proposed action will jeopardize the grizzly bear by increasing the potential for direct mortality to grizzly bears due to increased human use of roads and the increased visual access provided by these roads." The biological opinion was then put on hold while the Forest Service, Fish & Wildlife, and Stimson's predecessor-in-interest negotiated a multi-party Conservation Agreement intended to mitigate the effects of the Stimson Project. Stimson and the agencies signed a final Conservation Agreement on January 17, 1997.

B

The 1997 Conservation Agreement dictated the terms by which Stimson would manage all of its lands in the LeClerc BMU, not just those lands to be accessed by the Stimson Project. According to Fish & Wildlife, the Agreement "spells out a cooperative management plan to minimize effects to the grizzly bear in the LeClerc BMU." In particular, the Agreement aims to "minimize displacement of grizzly bears from spring range, to maintain functional female grizzly bear home range in the BMU, and to reduce the potential for human-caused mortality."

To those ends, the Agreement imposed dozens of requirements on Stimson's management of its lands in the LeClerc BMU. Stimson agreed to restrict all activities, including harvesting and road building, in spring range areas when bears are out of their dens. That is, Stimson could only harvest those areas when bears are denning in the winter. The Agreement also restricted Stimson's ability to build roads on its privately owned lands, prohibited net gains in open-road densities, and mandated that road construction maintain "visual screening" (e.g., trees) into bear habitat. The Agreement required Stimson to maintain 40 percent "cover" (areas of prime bear habitat) in the LeClerc BMU and provided that all harvest units "be layed [sic] out so that no point in the unit is more than 600 feet from cover." Finally, the Agreement created an extensive monitoring system. Stimson agreed to monitor "road densities, levels of vehicular use, and seclusion habitat." Stimson and the agencies agreed that the "monitoring results and the Agreement guidelines will be reviewed by the Parties annually ... and the guidelines will be appropriately revised."

Fish & Wildlife issued a biological opinion on June 20, 1997. Relying heavily on the mitigating effects of the Conservation Agreement in evaluating the Stimson Project's impact on habitat, the opinion concluded that the Stimson Project would not jeopardize any of the threatened or endangered species in the area. Fish & Wildlife stated that the Agreement mitigated the concerns about the grizzly bears "in several ways: Open road densities will be limited.... there will be no net increase in total road densities, and no net decrease in core [e.g., prime bear habitat] ..." and "[i]mplementation of [the Agreement's provisions] together will add approximately 6,962 acres of grizzly bear habitat with low levels of motor vehicle access, and provide a large block of available spring habitat."

The biological opinion concluded that:

The proposed project ... is not likely to result in jeopardy to the species [grizzly bears] because:

. . .

Implementation of the guidelines in the Agreement should improve grizzly bear occupancy in spring range, especially in and near the Winter Logging Areas;

the Agreement results in loss of a large block of core habitat, however measures are provided to improve seasonal secure areas for the grizzly bears, and to minimize motor vehicle use on restricted roads;

monitoring will be conducted....

Thus, Fish & Wildlife believed that the Stimson Project, assuming a fully implemented Conservation Agreement, would not place any species in jeopardy.

In commenting on this opinion, the Forest Service questioned whether the Conservation Agreement's lowering of bear mortality risk, which focuses mostly on restrictions to spring habitat, would affect bear mortalities in the critical fall season when hunters abound. Despite this skepticism about the ability of the Conservation Agreement's mitigation measures to lower bear mortality, the Forest Service issued a Finding of No Significant Impact, meaning that the Forest Service would not study the issue further or prepare an EIS. That Finding was appealed administratively and reversed. The Forest Service thereafter developed a Draft EIS.

C

Stimson, the Forest Service, and Fish & Wildlife entered into a revised Conservation Agreement on February 1, 2000. As revised, the Agreement creates an ecosystem-based management plan throughout the LeClerc BMU. The 2000 Agreement has many of the same features as the 1997 Agreement. In particular, the Agreement requires Stimson to manage the timber to guarantee tree "cover" for bears every 600 feet, to prevent a net...