The Ecology Center v. U.S. Forest Serv.

• Decision Date: 29 June 2006
• Docket Number: No. 05-4101.,05-4101.
• Citation: 451 F.3d 1183
• Parties: THE ECOLOGY CENTER, INC., a non-profit Montana corporation, THe Aquarius Escalante Foundation, a non-profit Utah corporation, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Utah Environmental Congress; Robert A. Russell, Forest Supervisor, Dixie National Forest; Stephen R. Robertson, Acting Forest Supervisor, Dixie National Forest; Dale Bosworth, Chief of the Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

451 F.3d 1183

THE ECOLOGY CENTER, INC., a non-profit Montana corporation, THe Aquarius Escalante Foundation, a non-profit Utah corporation, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Utah Environmental Congress; Robert A. Russell, Forest Supervisor, Dixie National Forest; Stephen R. Robertson, Acting Forest Supervisor, Dixie National Forest; Dale Bosworth, Chief of the Forest Service, Defendants-Appellees.

No. 05-4101.

United States Court of Appeals, Tenth Circuit.

June 29, 2006.

Thomas J. Woodbury, Forest Defense, P.C., Missoula, MT, for Plaintiffs-Appellants.

Michael T. Gray, United States Department of Justice, Environmental & Natural Resources Division, Washington, DC, (Mark Haag, Department of Justice, Environment & Natural Resources Division, Washington, DC; Kelly A. Johnson, Acting Assistant Attorney General, Department of Justice, Washington DC; and Elise Foster, United States Department of Agriculture, Washington, D.C., with him on the brief), for Defendants-Appellees.

Before HENRY, EBEL, and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.

Plaintiffs Ecology Center and the Aquarius Escalante Foundation (together, "Ecology Center") filed a complaint in the United States District Court for the District of Utah. Ecology Center sought declaratory and injunctive relief to stop the Griffin Springs Resources Management Project ("the Project"), which would allow logging in the Griffin Springs area. Ecology Center claimed that the Project's Record of Decision did not comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f; the National Forest Management Act of 1976, 16 U.S.C. § 1600-1614; and the Administrative Procedures Act, 5 U.S.C. §§ 701-706. The district court found the Forest Service's approval of the Project neither arbitrary nor capricious and dismissed the complaint. Ecology Center timely appealed.

For the reasons stated below, we affirm in part, reverse in part, and remand in part.

I. BACKGROUND

A. Statutory and Regulatory Framework

1. NEPA's procedural requirements

NEPA established a "national policy [to] encourage productive and enjoyable harmony between man and his environment," and was intended to reduce or eliminate environmental damage and promote "the understanding of the ecological systems and natural resources important to" the United States. 42 U.S.C. § 4321. "NEPA itself does not mandate particular results" in order to accomplish these ends. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Rather, NEPA imposes procedural requirements on federal agencies with a particular focus on requiring agencies to analyze the environmental impact of their proposals and actions. See id. at 349-53, 109 S.Ct. 1835.

NEPA requires that federal agencies prepare an environmental impact statement ("EIS") for certain major federal actions significantly affecting the quality of the human environment. The EIS must include a

detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C).

2. National Forest Management Act's requirements

The National Forest Management Act of 1976 requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). The Forest Service, which manages the national forest system, develops land and resource management plans pursuant to the National Forest Management Act. The National Forest Management Act also requires that forest plans "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area." Id. § 1604(g)(3)(B).

The Project is located in the Dixie National Forest in Utah. Management activities of the Dixie National Forest are governed by the Dixie National Forest Plan ("the Plan"), adopted in 1986. The Plan includes both a habitat approach (which incorporates habitat management recommendations to preserve and maintain suitable habitat) and a population trend monitoring approach (which includes species population assessments) for insuring the viability of old growth species in compliance with the National Forest Management Act. See 16 U.S.C. § 1604(f)(1). For individual management actions within a forest, all relevant resource plans, contracts, and permits must be consistent with a forest's overall land management plan. Id. § 1604(i).

B. The Dixie National Forest Plan

As the Forest Service points out, the Plan imposes several obligations on the forest, with specific instructions for protecting the northern goshawk. It is undisputed that the Forest Service considers the northern goshawk a sensitive species. The duty to ensure viable populations "applies with special force to sensitive species." Inland Empire Pub. Lands v. U.S. Forest Serv., 88 F.3d 754, 759 (9th Cir. 1996) (internal quotation marks omitted).

The Plan's requirements of particular relevance to this appeal are:

1. establishing the northern goshawk as a management indicator species ("MIS"), Aplts' App. at A-16;¹

2. imposing forest-wide ongoing monitoring obligations for MIS, including the northern goshawk, id.;

3. requiring annual nest surveys for goshawks, if the population is near the minimum level, and nest surveys every two to five years in project areas, id.;

4. requiring "further evaluation" if there is a ten percent decline in the estimate forest-wide goshawk population size over a three-year period "and for loss of important habitat components," id.;

5. requiring annual monitoring by means of a "[v]ariable strip transect," which involves the use of a linear transect of a predetermined distance, id.; and

6. incorporating the requirements of the Utah Northern Goshawk Conservation Strategy and Agreement for the Management of [the] Northern Goshawk Habitat in Utah (the "Conservation Strategy"), which also imposes annual population monitoring requirements, id. at A-33 to A-51.

The purpose of the Conservation Strategy

is to attain the goal of long-term conservation of the northern goshawk, its habitat and associated species throughout Utah through proactive management. Conservation of the Northern goshawk and its habitat will require improving degraded habitat conditions, maintaining and/or expanding populations.... Achievement of the desired habitat conditions contained within the strategy will provide that habitat is available to sustain viable goshawk populations in the State of Utah.

Id. at A-49.

The Conservation Strategy states, "when developing site specific prescriptions... the management recommendations for the northern goshawk in the Southwest United States (Reynolds et al.1992) should be used." Id. at A-35. These recommendations are contained in a 1992 Forest Service report titled "Management Recommendations for the Northern Goshawk in the Southwestern United States" (the "Reynolds Report"). Id. at A-52. The Reynolds Report's recommendations "represent the best available scientific information for forming the development of site prescriptions and should be considered a component of [the Conservation Strategy]." Id. at A-38 to A-39.

The Reynolds Report lists several "management recommendations" for the three types of goshawk habitat: nest areas, post-fledgling family areas, and foraging areas. Should there be logging, the Conservation Strategy recommends the thinning of understory trees rather than thinning from above. Id. at A-58. Specifically, the Plan seeks to maintain "[f]unctioning forested landscapes [to] provide habitat for the northern goshawk and its prey to support a viable population of goshawks in Utah." Aples' Supp.App. vol. I, at 8443.

The Conservation Strategy acknowledges that "[w]here site specific conditions differ from those described [in the Reynolds Report], the [Forest Service] must interpret and document [its] own specific value based on local data ... using the 1992 habitat evaluation process [set forth in the Reynolds Report]." Aplts' App. at A-39.

In discussing the northern goshawk habitat, the Reynolds Report describes six vegetation structural stages ("VSS") of southwestern forests. Those structural stages range from VSS 1—in which a forest is dominated by grasses, forbs and shrubs—to VSS 5 (a "mature forest") and VSS 6 (an "old forest"). Id. at A-59. The report states that desired forest conditions for sustaining northern goshawks and their principal prey species require twenty percent of VSS 6, such as older spruce-firs in the post-fledgling goshawk area and foraging area.

In 1982, when the Plan was adopted, the Forest Service estimated that there were 68 pairs of northern goshawks in the Dixie National Forest. The minimum viable population was established at 40 pairs. Id. at A-17. All parties agree that according to the most recent assessment in 2002, the goshawk population hovered at 20-30 pairs. Id. at A-70.

C. The Griffin Springs Project

During 1994, the Forest Service first reviewed the possibility of implementing the Griffin Springs Project to allow commercial logging in the area. The Project area encompasses 11,835 acres located within the Escalante River and East Fork of the Servier River watershed. Id. at A-18.

The Project area's forest type consists primarily of Englemann spruce/subalpine fir, "with a strong component of aspen. Other vegetation types represented include sagebrush and mixed conifer." Id. The Forest Service determined that...