Sierra Club v. Wagner

• Decision Date: 06 February 2009
• Docket Number: No. 08-1978.,08-1978.
• Parties: SIERRA CLUB, Center for Biological Diversity, and The Wilderness Society, Plaintiffs, Appellants, v. Thomas WAGNER, in his official capacity as Forest Supervisor of the White Mountain National Forest; Abigail Kimbell, in her official capacity as Chief of the United States Forest Service; Edward T. Schafer, in his official capacity as Secretary of the United States Department of Agriculture; and the United States Department of Agriculture, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

555 F.3d 21

SIERRA CLUB, Center for Biological Diversity, and The Wilderness Society, Plaintiffs, Appellants, v. Thomas WAGNER, in his official capacity as Forest Supervisor of the White Mountain National Forest; Abigail Kimbell, in her official capacity as Chief of the United States Forest Service; Edward T. Schafer, in his official capacity as Secretary of the United States Department of Agriculture; and the United States Department of Agriculture, Defendants, Appellees.

No. 08-1978.

United States Court of Appeals, First Circuit.

Heard November 4, 2008.

Decided February 6, 2009.

Kristin A. Henry, with whom Eric E. Huber and Bradford W. Kuster were on brief for appellants.

Charles R. Scott, United States Department of Justice, Environment & Natural Resources Division, with whom Cynthia S. Huber and Mark R. Haag, United States Department of Justice, Environment & Natural Resources Division, and Ronald J. Tenpas, Assistant Attorney General, were on brief for appellees.

Before BOUDIN, SELYA and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

The Sierra Club, along with two other conservation groups (for simplicity we refer only to the Sierra Club), challenges the Forest Service's approval of two forest resource management projects in the White Mountain National Forest ("Forest" or "WMNF"): the Than Forest Resource Management Project ("Than Project") and the Batchelder Brook Vegetation Management Project ("Batchelder Project"). The district court's decision, upholding the Forest Service, provides detailed background, Sierra Club v. Wagner, 581 F.Supp.2d 246, 250-55 (D.N.H. 2008), which we summarize here.

The Forest Service, an agency of the U.S. Department of Agriculture, is responsible for national forests. The National Forest Management Act ("NFMA"), 16 U.S.C. §§ 472a, 521b, 1600 et seq. (2006), provides for management of national forests at two levels, the programmatic (or plan) level and the project level (where the Forest Service implements the broader programs and goals laid out in the forest plan). Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 729-30, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998).

All projects within a forest must comply with the overall plan for that forest, 16 U.S.C. § 1604(i), which is revised periodically, id. § 1604(f)(5). The governing White Mountain National Forest Land and Resource Management Plan was most recently revised and adopted in September 2005 ("the 2005 Plan"). The 2005 Plan was revised pursuant to the 1982 forest service regulations ("the 1982 rules"), which could still permissibly be considered for Plan revisions when the new plan was adopted. See 36 C.F.R. § 219.35(b).

The White Mountain National Forest covers almost 800,000 acres in northern New Hampshire and western Maine. The governing 2005 Plan promotes multiple uses for the Forest including recreation, timber harvesting, and preservation of wildlife and wilderness, as required by the NFMA. 16 U.S.C. §§ 1604(a), (e). The 2005 Plan classifies approximately 281,000 acres in the WMNF as appropriate for harvesting timber, but currently harvesting is allowed only on roughly 3,400 acres annually, a tiny fraction of the forest.

During the 2005 Plan revision process, the land was inventoried to determine whether it qualified as "roadless." 36 C.F.R. § 219.17(a) (1983). In the eastern United States, to qualify as roadless, land must meet certain environmental standards including very few constructed roads or recent timber harvesting.¹ Twenty-seven areas, totaling 403,000 acres, met these criteria and comprise inventoried roadless areas ("IRA's"), which can be designated by Congress as Wilderness Areas, thereby affording the lands special protection, 16 U.S.C. § 1132(b). The Forest Service recommended that Congress so designate 34,500 acres over and above the 114,000 acres previously protected.

After adoption of the 2005 Plan, the Forest Service evaluated various management areas within the Forest to determine what new projects were required to achieve the 2005 Plan goals. It determined, for the areas encompassing the Than and Batchelder projects, that more diverse habitats, including new vegetation in younger age classes, were needed and that it would be beneficial to harvest some mature trees to create room for younger trees (creating what is known as early successional habitat).

Ultimately the Forest Service proposed to allow timber harvesting of approximately 929 acres in the Than project, creating up to 231 acres of early successional habitat. Some existing roads would receive maintenance or reconstruction, and a 500 foot section of new road was planned. Part of this project would affect the Wild River Inventoried Roadless Area, including 464 acres of timber harvesting in that area.

The other proposed action, the Batchelder Project, involved harvesting on 380 acres, including 139 acres within the South Carr Mountain Inventoried Roadless Area. The Project requires no new road construction, but does authorize maintenance on approximately three miles of road, one-half mile of which is located in the South Carr Mountain IRA.

The National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., obligates agencies such as the Forest Service to evaluate the environmental impacts of its proposed actions. Dubois v. U.S. Dep't of Agriculture, 102 F.3d 1273, 1284 (1st Cir.1996), cert. denied sub. nom. Loon Mtn. Recreation Corp. v. Dubois, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997). To comply with NEPA, the Forest Service was first required to determine whether either the Than or the Batchelder Project would have a significant environmental impact. 40 C.F.R. § 1501.4 (2007); Save Our Heritage, Inc. v. F.A.A., 269 F.3d 49, 57 (1st Cir.2001).

A detailed environmental impact statement ("EIS") is required whenever proposed actions will "significantly affect the quality of the human environment." 42 U.S.C. § 4332; 40 C.F.R. §§ 1502.1, 1502.14; Dubois, 102 F.3d at 1285. If uncertain about impact, the agency may start with a less detailed Environmental Assessment ("EA"); 40 C.F.R. § 1501.3. If the EA finds a significant impact, a full EIS must be prepared; if not, the agency makes a "Finding of No Significant Impact" ("FONSI"), which exhausts its obligation under NEPA. Id. §§ 1501.4, 1508.9, 1508.13.

The Forest Service prepared an EIS in connection with the 2005 Plan revision and it was also required to prepare either an EIS or EA for both the Than and Batchelder projects. 40 C.F.R. § 1501.4; see also Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998), cert. denied, 527 U.S. 1003, 119 S.Ct. 2337, 144 L.Ed.2d 235 (1999). Under the 2005 Plan, specific projects' environmental analyses may incorporate by reference ("tier") information that is in the Plan EIS, so an EA need not start from scratch. 40 C.F.R. § 1508.28.

The Forest Service prepared an initial EA for the Than Project in May 2006 but, after an administrative appeal, issued in November 2006 a revised EA for public comment. After receiving comments and after an injunction deferred the operation of new Forest Service rules relied on in the November 2006 draft, the Forest Service revised the EA and issued the final Than EA in April 2007.

Despite certain possible adverse effects of the Than Project on the Wild River Inventoried Roadless Area—including sediment inputs to streams, some soil disturbance, and effects on stream temperature—the Forest Service concluded that the project would

not significantly alter the character of the area or the qualities which qualified it for inclusion in the inventory ... because the harvests are of limited intensity and minimal road systems will be used [and that there would be no] lasting or significant effect on the roadless character of the area.

It issued a FONSI and thereafter denied the Sierra Club's administrative appeal.

As for the Batchelder project, an initial EA draft was withdrawn when the initial Than EA was set aside; a revised EA was issued in December 2006 for public comment followed by a final EA and a revised decision notice with a FONSI in May 2007. The FONSI conceded certain potential adverse effects (on wildlife and possible sedimentation of streams), but concluded that no significant impact would result on the South Carr Mountain Area's roadless or wilderness characteristics. A Sierra Club administrative appeal was thereafter denied.

In August 2007, the Sierra Club filed a complaint in the district court challenging the Than Project. It amended its complaint to incorporate claims regarding the Batchelder Brook Project in October 2007. On cross-motions for summary judgment, the district court upheld the Forest Service's actions, granted the Forest Service's motion and denied Sierra Club's. We denied a stay pending appeal but expedited the case.

On appeal, Sierra Club claims error by the Forest Service in several respects. We review questions of law de novo, WorldNet Telecommunications, Inc. v. Puerto Rico Telephone Co., 497 F.3d 1, 5 (1st Cir.2007), but are deferential to the agency in its interpretation of its own rules, Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and in judgment calls as to the likely impact of proposed actions. Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). The latter, reflected in the FONSI findings, are to be upheld unless arbitrary and capricious. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); see also 5 U.S.C. § 706(2)(A).

Sierra Club argues first that the Forest Service erred by applying the "best available science" standard found in the Forest Service rules, adopted in 2000, see 36 C.F.R. § 219.35(a) (2001), to its evaluation of the Than and Batchelder Brook projects, rather than a set of rules adopted in 1982. One might think from the name that "best available science" is an...