Utah Environmental Congress v. Troyer

• Decision Date: 21 March 2007
• Docket Number: No. 05-4183.,05-4183.
• Citation: 479 F.3d 1269
• Parties: UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. Jack TROYER, in his official capacity as Regional Forester of the Intermountain Region of the U.S. Forest Service; Dale Bosworth, Chief of the Forest Service; United States Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

479 F.3d 1269

UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. Jack TROYER, in his official capacity as Regional Forester of the Intermountain Region of the U.S. Forest Service; Dale Bosworth, Chief of the Forest Service; United States Forest Service, Defendants-Appellees.

No. 05-4183.

United States Court of Appeals, Tenth Circuit.

March 21, 2007.

Sarah Tal (Joel Ban on the briefs), of Wildlaw, Salt Lake City, UT, for Plaintiff-Appellant.

John E. Arbab, United States Department of Justice, Environment and Natural Resources Division, Washington, DC (Mark R. Haag, United States Department of Justice, Washington, DC; Sue Ellen Wooldridge, Assistant Attorney General, Washington, DC; Elise Foster, Office of the General Counsel, United States Department of Agriculture, Ogden, UT, of Counsel, with him on the brief), for Defendants-Appellees.

Before BRISCOE, HOLLOWAY, and McCONNELL, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff Utah Environmental Congress (UEC) brought this action alleging that defendants, representatives of the United States Forest Service (Forest Service), violated federal law by authorizing six separate projects in four national forests in the State of Utah. The district court entered judgment in favor of defendants. UEC now appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, affirm the district court's decision affirming authorization of three of those projects, reverse the district court's decision affirming authorization of the remaining three projects, and remand to the district court with directions to vacate the Forest Service's approval of those latter three projects.

I.

A. Statutory and Regulatory Framework

The Forest Service, an agency within the United States Department of Agriculture, manages the National Forest System under several federal statutes and accompanying regulations. We begin our review of this appeal, as we recently did in a similar case filed by plaintiff UEC, by outlining the specific statutory and regulatory framework applicable to the issues raised by UEC. Utah Envt'l Cong. v. Bosworth, 443 F.3d 732, 735-36 (10th Cir.2006) (UEC III).

1) National Forest Management Act (NFMA)

The National Forest Management Act of 1976 (NFMA) requires the Forest Service to "develop a land and resource management plan, commonly known as a forest plan, for each unit of the National Forest System." UEC III, 443 F.3d at 736 (citing 16 U.S.C. § 1604(a), (e), (g)(3)(B)). Each forest plan "envisions the forest will be used for multiple purposes, including `outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.'" Id. at 737 (quoting 16 U.S.C. § 1604(e)(1)). "At the same time, the forest plan provides for `diversity of plant and animal communities based on the suitability and capability of the specific land area.'" Id. (quoting 16 U.S.C. § 1604(g)(3)(B)). In turn, the Forest Service implements each forest plan "by approving or disapproving particular projects," each of which "must comply with the applicable forest plan." Id.

2) The NFMA's implementing regulations

"Before a forest plan may be created, NFMA `explicitly requires the Secretary of Agriculture to issue regulations that set out the process for the development and revision of land management plans for units of the National Forest System, and regulations that establish management planning standards and guidelines....'" Id. (quoting 47 Fed.Reg. 43,026, 43,037 (Sept. 30, 1982)). "Of particular concern in this case are planning rules the Forest Service adopted in 1979 and revised in 1982, codified at 36 C.F.R. § 219 (1982), which govern Forest Service management at both the programmatic and project levels." Id. "In November 2000, the Forest Service substantially amended these regulations, known as the 1982 planning rules, replacing them with the 2000 planning rules, codified at 36 C.F.R. § 219 (2001)." Id.

As part of the 2000 planning rules, the Forest Service added a new regulation, 36 C.F.R. § 219.35, entitled "Transition," that attempted to outline how responsible officials within the Forest Service were to "transition" from the 1982 rules to the 2000 rules. Section 219.35 indicated that the forest plan for each unit of the National Forest System would be revised pursuant to a schedule established by the Chief of the Forest Service. 36 C.F.R. § 219.35(g) (2001). Consistent with that goal, § 219.35(a) announced an indefinite "transition period," "begin[ning] on November 9, 2000 and end[ing] upon the completion of the revision process .. . for each unit of the National Forest system." Importantly, for purposes of this case, § 219.35(b) created a grace period during which responsible officials within the Forest Service could, at their discretion, revise forest plans utilizing either the 1982 planning rules or the 2000 planning rules.

With respect to the implementation of forest plans, § 219.35(a) provided that, "[d]uring the transition period," responsible officials would be required to "consider the best available science in implementing and, if appropriate, amending" the then-existing forest plans (i.e., forest plans that had yet to be revised). At the same time, however, § 219.35(d) also stated: "Site-specific decisions made by the responsible official 3 years from November 9, 2000 and afterward must be in conformance with the provisions of this subpart." Thus, responsible officials were left to resolve the tension between § 219.35(a)'s mandate that they "consider the best available science in implementing" existing forest plans during the transition period, and § 219.35(d)'s provision that site-specific decisions did not have to conform to "this subpart," including, presumably, § 219.35(a), until November 9, 2003 and thereafter.

In May 2002, the Forest Service publicly noted that "field personnel" had raised concerns regarding their ability to comply with the 2000 rules in terms of making site-specific decisions. 68 FR 53295. At that time, the Forest Service indicated "that it expected to address these concerns by removing the requirement or extending the original transition date for site-specific projects." Id. After publishing a proposed revision on December 6, 2002, id., the Forest Service issued an interim final rule on September 10, 2003, amending § 219.35(d) to read: "The date by which site-specific decisions made by the responsible official must be in conformance with the provisions of this subpart is extended from November 9, 2003, until the Department promulgates [its] final planning regulations...." In doing so, the Forest Service acknowledged that "[t]here [wa]s a lack of clarity about how projects [we]re to be compliant with the rule," and that "[t]his uncertainty and lack of clarity [could have] pose[d] an unreasonable analysis burden on field units when planning for site-specific project decisions." 68 FR 53295. Unfortunately, the Forest Service's extension of subsection (d)'s grace period did nothing to eliminate the tension between subsections (a) and (d). Indeed, as exemplified by some of the projects at issue in this appeal, the September 10, 2003 interim final rule could have been interpreted by responsible officials as an indication that they were not obligated to apply the best available science standard to site-specific decisions, including project approvals, until the final regulations were promulgated.

On September 29, 2004, the Forest Service issued a final rule "to clarify the intent of the transition section of the planning regulations," i.e., § 219.35, "regarding the consideration and use of the best available science to inform project decision making that implement[ed] a [pre-2000] land management plan . . . ." 69 FR 58055. In doing so, the Forest Service acknowledged that "[c]onsiderable uncertainty ha[d] arisen regarding ... the transition provisions," id., and that "[t]his uncertainty ha[d] affected the ability of the Forest Service to utilize fully the provisions of § 219.35 paragraph (a) to consider the best science available in ... project decision making." Id. at 58056. The final rule ultimately added an appendix (Appendix B) to the end of § 219.35 adding clarifying language. Id. at 58057.

"These transition provisions remained on the books until January 2005 when the new rules were finally implemented." UEC III, 443 F.3d at 737 (citing 36 C.F.R. §§ 219.1 to .16 (2005), and 70 Fed.Reg. 1,023 (Jan. 5, 2005)). "The 2005 rules retained the best available science standard, requiring the `Responsible Official [to] take into account the best available science' by `document[ing] how the best available science was taken into account in the planning process,' and evaluating and disclosing substantial uncertainties and risks in that science." Id. (quoting 36 C.F.R. § 219.11(a) (2005) (emphasis added)).

3) National Environmental Policy Act (NEPA)

"The National Environmental Policy Act (`NEPA') requires federal agencies such as the Forest Service to analyze environmental consequences before initiating actions that potentially affect the environment." Id. at 735-36. "In conducting this analysis, the Forest Service must prepare one of the following: (1) an environmental impact statement [EIS], (2) an environmental assessment [EA], or (3) a categorical exclusion." Id. at 736.

Of these three, "[a]n environmental impact statement involves the most rigorous analysis, and is required if a proposed action will `significantly affect[ ] the quality of the human environment.'" Id. (quoting 42 U.S.C. § 4332(2)(C) and 40 C.F.R. § 1502.4). An environmental assessment is "considerably less detailed," and may be prepared "[i]f an agency is uncertain whether the proposed action will significantly affect the environment...." Id. at 736 (citing 40 C.F.R. § 1508.9). "An environmental assessment provides `sufficient evidence and analysis' to determine whether a proposed project will create a significant effect on the environment." Id. (quoting 40 C.F.R. § 1508.9)....