Utah Environmental Congress v. Bosworth, 03-4080.

• Decision Date: 23 June 2004
• Docket Number: No. 03-4080.,03-4080.
• Citation: 372 F.3d 1219
• Parties: UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. Dale BOSWORTH, as Chief of the Forest Service; United States Forest Service; Mary Erickson, Supervisor of the Fishlake National Forest, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1219

372 F.3d 1219

UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. Dale BOSWORTH, as Chief of the Forest Service; United States Forest Service; Mary Erickson, Supervisor of the Fishlake National Forest, Defendants-Appellees.

No. 03-4080.

United States Court of Appeals, Tenth Circuit.

June 23, 2004.

Ray Vaughan (Adelaide Maudsley, LeBoeuf, Lamb, Greene & McRae, LLP with him on the briefs), WildLaw, Montgomery, AL, for the Plaintiff-Appellant.

Mark R. Haag (Elise Foster, United States Department of Agriculture; Thomas L. Sansonetti, Assistant Attorney General David C. Shilton and Myesha K. Braden, United States Department of Justice, Environment and Natural Resources Division, with him on the brief), United States Department of Justice, Environment and Natural Resources Division, Washington, DC, for the Defendant-Appellee.

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

At issue is the extent of the United States Forest Service's obligations under its regulations to monitor management indicator species before approving forest management activities. Finding the Forest Service's monitoring efforts sufficient, the district court affirmed the Record of Decision authorizing the Monroe Mountain Ecosystem Restoration Project. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE and REMAND.

I

Monroe Mountain, part of the Fishlake National Forest approximately 140 airline miles south of Salt Lake City in Central Utah, is the center of the Monroe Mountain Ecosystem Restoration Project (the "Monroe Project"). The Monroe Project area covers approximately 50,000 acres, consisting of forest (primarily fir occasionally mixed with aspen) and non-forest (grass and sagebrush) land.

As part of the National Forest System, the Fishlake National Forest is maintained under a Forest Management Plan (the "Fishlake Forest Plan"), pursuant to the National Forest Management Act ("NFMA"), 16 U.S.C. § 1604; the Fishlake Forest Plan was approved in 1986. Forest Management Plans are to be revised every ten to fifteen years and can be amended. 16 U.S.C. § 1604(f). To accomplish NFMA's broad land management responsibilities, the Forest Service has promulgated regulations, including: further clarification of general forest planning procedures, 36 C.F.R. § 219.10; minimum forest management requirements, 36 C.F.R. § 219.27; requirements to ensure diversity of plant and animal species, 36 C.F.R. § 219.26; and habitat requirements for native and desirable non-native species, 36 C.F.R. § 219.19.

To execute specific Forest Management Plans, the Forest Service proposes individual projects. See, e.g., Ohio Forestry Assoc., Inc. v. Sierra Club, 523 U.S. 726, 729-730, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (describing the steps involved in proposing and adopting a site-specific action under the Wayne National Forest's Management Plan); Colorado Environmental Coalition v. Dombeck, 185 F.3d 1162, 1168 (10th Cir.1999) ("The Forest Service implements the Forest Plan by approving... or disapproving particular projects...."). Individual projects must comply with the NFMA's enacting regulations. 16 U.S.C. § 1604(i). Specifically, any projects undertaken by the Forest Service in the Fishlake National Forest must be consistent with the Fishlake Forest Plan. 16 U.S.C. § 1604(i), 36 C.F.R. § 219.10(e) (1999).¹

In 1997, a Forest Service Interdisciplinary Team considered portions of Monroe Mountain for "immediate ecosystem restoration treatment." (Administrative Record Vol. 2 ("2 AR") Doc. 485 at I-2.) After assessing conditions in the relevant area, the Monroe Mountain Ecosystem Restoration Project (the "Monroe Project") was developed. The Monroe Project's Final Environmental Impact Statement ("FEIS"), which analyzes the potential effects of several management alternatives, states that the primary purpose of the Monroe Project "is to move the forest and grassland ecosystems within the project area toward properly functioning condition of ecological structure and function." (2 AR Doc. 485 at I-3.) To that end, six distinct objectives were developed: (1) restore aspen ecosystems, (2) improve watershed conditions, (3) reduce the risk of large wildfires, (4) reduce the potential of epidemic spruce beetle infestation in spruce/fir stands, (5) restore the grass/forb ecosystem to improve wildlife and livestock habitat, and (6) provide timber products for the local economy. To effectuate these objectives, five management alternatives were analyzed to determine the potential effects the Monroe Project might have on the area, as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4331, et seq.

Proposing several actions to meet the specific objectives of the Monroe Project, the selected alternative includes timber harvesting, prescribed burns, and sagebrush treatments to Monroe Project land outside of Inventoried Roadless Areas ("IRAs").² Action within IRAs was limited by the plan to prescribed burning. The Forest Service's Record of Decision found that the selected alternative met the six objectives of the Project by: (1) converting over 2,500 acres of mixed conifer/aspen stands to aspen stands, thus restoring an abundance of aspen to the forest; (2) increasing riparian resiliency by improving understory vegetation and decreasing sediment production; (3) treating 2,645 acres of mixed conifer/aspen stands to reduce fuel, thereby decreasing the risk of intense wildfires; (4) reducing the density of 248 acres of spruce/fir stands, thereby decreasing the risk of epidemic spruce beetle infestation; (5) converting over 1,300 acres of sagebrush into grass/forb areas, creating more habitat for livestock and wildlife; and (6) producing approximately 8.7 million board feet of timber, thus supporting the local economy. Slightly under 5,000 of the 50,000 Monroe Project area acres were subject to treatment under the selected alternative.

Following the Forest Supervisor's authorization of the Monroe Project, Utah Environmental Congress ("UEC") filed suit in district court, alleging the Forest Service's authorization of the Monroe Project violated NEPA, the NFMA, the Administrative Procedure Act ("APA"), and various Forest Service regulations. In March 2003, the district court found in favor of the Forest Service on all claims. UEC appeals, raising two primary allegations of error: (1) that the Forest Service's failure to monitor Management Indicator Species ("MIS") renders its authorization of the Monroe Project violative of the NFMA, the NFMA's implementing regulations, and the Fishlake Forest Plan; and (2) that the Forest Service's "revalidation" of roadless areas during the Monroe Project development, which resulted in some previously labeled roadless areas no longer being categorized roadless, was illegal because such an action is not authorized at an individual project level.

II

A

We first address the Forest Service's Management Indicator Species ("MIS") monitoring.³ Judicial review of agency action under 5 U.S.C. §§ 701-706 directs reviewing courts to set aside agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Although our review of an agency's decision is deferential, we will reverse if the decision is not supported by substantial evidence. Hoyl v. Babbitt, 129 F.3d 1377, 1382 (10th Cir.1997) (citations omitted); Federal Power Comm'n v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 46 L.Ed.2d 533 (1976) (recognizing that if an agency's decision is not supported by the administrative record made, it must be vacated and the matter returned to the agency for further consideration). "Because we are obligated to undertake an independent review of the agency's action in this appeal, we are not bound by the District Court's recitation of the facts below." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1569 n. 16 (10th Cir.1994) (citation omitted).

When reviewing an agency's interpretation of its own regulations, we defer to the agency's view, unless it is "unreasonable, plainly erroneous, or inconsistent with the regulation's plain meaning." Bar MK Ranches v. Yuetter, 994 F.2d 735, 738 (10th Cir.1993) (citation omitted). In the context of technical or scientific matters particularly, judicial deference to agency decisions is appropriate, Wyoming v. United States, 279 F.3d 1214, 1240 (10th Cir.2002), and choices of suitable scientific methodology are entrusted to the agency, Custer County Action Assn. v. Garvey, 256 F.3d 1024, 1036 (10th Cir.2001).

In the instant case, UEC argues that the district court erred when it found that "[f]or each of the five MIS at issue [in this case], the Forest Service has collected appropriate quantitative population data or has a valid reason for not collecting such data." Utah Environmental Congress v. Bosworth, et al., No. 2:01-CV-00316PGC, slip op. at 18 (D.Utah Mar. 27, 2003) ("Dist.Ct.Order"). On appeal UEC maintains that the Forest Service did not (1) collect appropriate quantitative data and (2) improperly relied on habitat trends rather than actual species population trends. As a result, UEC argues, the Forest Service's decision to authorize the Monroe Project was arbitrary and capricious.

The Fishlake Management Plan subdivided the Fishlake National Forest into nineteen separate Management Areas, each with its own management practices. The Monroe Project covers six different Management Areas within the Fishlake National Forest; however, ninety-two percent of the Monroe Project area is within Management Area 4B. Area 4B is designated "Habitat for Management Indicator Species," which indicates that priority should be given to managing the lands in accordance with the habitat needs of MIS. (1 AR Doc. 460 at S-9.) To this end, the Forest Service is required to "estimate the effects of each [management] alternative on fish and wildlife" species that...