Utah Environmental Congress v. Bosworth, No. 03-4251.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Henry
• Citation: 439 F.3d 1184
• Parties: UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant, v. Dale BOSWORTH, as Chief of the Forest Service; United States Forest Service; Mary Erickson, as Supervisor of the Fishlake National Forest; Marvin Turner, Loa District Ranger, Defendants-Appellees.
• Docket Number: No. 03-4251.
• Decision Date: 24 February 2006

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439 F.3d 1184 UTAH ENVIRONMENTAL CONGRESS, Plaintiff-Appellant,
v.
Dale BOSWORTH, as Chief of the Forest Service; United States Forest Service; Mary Erickson, as Supervisor of the Fishlake National Forest; Marvin Turner, Loa District Ranger, Defendants-Appellees. No. 03-4251. United States Court of Appeals, Tenth Circuit. February 24, 2006.

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Stephen H. Novack, (Ray Vaughan, Wildlaw, Montgomery, Alabama, with him on the briefs), Wildlaw Southern Appalachian Office, Asheville, NC, for Plaintiff-Appellant.

Mark K. Haag (Thomas Sansonetti, Assistant Attorney General; and David C. Shilton and Myesha K. Braden, Environment & Natural Resources Division, Department of Justice, Washington, D.C.,

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with him on the brief), Environment & Natural Resources Division, Department of Justice, Washington, D.C., for Defendants-Appellees.

Before EBEL and HENRY, Circuit Judges, and WHITE, District Judge.^*

ORDER ON PETITION FOR REHEARING

HENRY, Circuit Judge.

This matter is before the court on Appellees' petition for rehearing. The panel has voted to grant a limited rehearing to modify some of the language in our panel opinion. The court's opinion filed on August 19, 2005 is withdrawn, and an amended opinion is attached to this order.

OPINION

In October 2001, the Forest Service approved a timber-harvesting project in Utah's Fishlake National Forest. Utah Environmental Congress ("UEC"), an environmental organization, filed a petition for review, and the district court dismissed the petition and affirmed the project's authorization. UEC alleges on appeal that the Forest Service (1) did not properly select and monitor the Management Indicator Species ("MIS") that it used to determine the effects of management activities on other species, and (2) did not consider a reasonable range of alternatives to the project. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment below and remand to the district court with instructions to vacate the Forest Service's approval of the project. After the district court rendered its decision, our court decided Utah Environmental Congress v. Bosworth, 372 F.3d 1219 (10th Cir.2004) ("UEC I"). This intervening circuit precedent required the agency to collect quantitative population data on actual MIS populations before authorizing a project under the 1982 planning regulations, which the Forest Service used here.

I. BACKGROUND

The Thousand Lakes Community Forestry Initiative Project ("the Project") is located in Wayne County, Utah, on the 1.5-million-acre Fishlake National Forest. A collaboration of timber representatives, environmentalists, politicians, and federal land managers undertook the Project (1) "to reduce the overall stand densities of the [spruce and aspen] stands that are at the highest risk of [spruce beetle] infestation, while maintaining a forested appearance" and (2) "to provide forest products to resource dependent industries in an economically feasible manner." Administrative Record vol. I, at ("1 AR") 000044. The Project encompasses timber harvests on 219 acres, with approximately one-half mile of road re-construction and post-treatment activities to minimize erosion and the use of authorized vehicles. No new road building is involved. The Project would use salvage (removal of unhealthy trees), sanitation (removal of dead trees in excess of resource needs for habitat), and commercial thinning (removal to reduce overall stand densities).

The Forest Service manages the Fishlake National Forest at two different levels. "At the first level, the Forest Service develops the Forest Plan, [which is] a broad, programmatic document, accompanied by an Environmental Impact Statement and public review process conducted in accordance with the National Environmental Policy Act [`NEPA']." Colorado Envtl. Coal. v. Dombeck, 185 F.3d 1162,

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1167-68 (10th Cir.1999); 16 U.S.C. § 1604. To this end, the Forest Service adopted the Fishlake National Forest Plan (the "Forest Plan") in 1986 to maintain the Fishlake National Forest. As part of its substantive responsibilities, the Forest Plan must "provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives." 16 U.S.C. § 1604(g)(3)(B).

At the second level, "the Forest Service implements the Forest Plan by approving (with or without modification) or disapproving particular projects," such as the Thousand Lakes Community Forestry Initiative Project. Dombeck, 185 F.3d at 1168. Individual projects are also subject to NEPA and must comply with the Forest Plan and the National Forest Management Act ("NFMA"). 16 U.S.C. § 1604(i).

In November 1999, the Forest Service began preparing an Environmental Assessment ("EA") of the Project. The Forest Service examined the Project's potential impact to wildlife, soils, vegetation, and other resources, and it prepared a Biological Assessment and Biological Evaluation of impacts to sensitive plant and animal species. In May 2001, the Forest Service published its EA for the Project, and in October 2001, the district ranger issued a finding of no significant impact ("FONSI") and a Decision Notice approving the Project. UEC brought an administrative appeal, and the Forest Service issued a Final Decision in February 2002 that affirmed the district ranger. 1 AR 000032.

UEC challenged the Forest Service's approval of the Project in federal district court. In September 2003, the district court dismissed UEC's petition for review and affirmed the agency's Decision Notice and FONSI. UEC now appeals the Forest Service's approval of the Project on two of the three grounds rejected by the district court. UEC alleges that the Forest Service (1) did not properly select and monitor certain Management Indicator Species and (2) did not consider a reasonable range of management alternatives.¹

II. STANDARD OF REVIEW

We take "an independent review of the agency's action" and are not bound by the district court's factual findings or legal conclusions. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1569 n. 16, 1577 n. 27 (10th Cir.1994). We review the Forest Service's decision under the Administrative Procedures Act and 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). We give deference to an agency's interpretation, "especially when that interpretation involves questions of scientific methodology." Dombeck, 185 F.3d at 1170. In addition, "[t]he agency, not the reviewing court, is entrusted with the responsibility of considering the various modes of scientific evaluation and theory and choosing the one appropriate for the given circumstances." City of Bridgeton v. FAA, 212 F.3d 448, 459 (8th Cir. 2000) (quotation marks and internal citation omitted), cited with approval in Custer

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County Action Ass'n v. Garvey, 256 F.3d 1024, 1036 (10th Cir.2001). "[T]he court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

III. APPLICABLE FOREST SERVICE REGULATIONS

Before we proceed to UEC's separate challenges, we briefly describe the relevant regulations at issue. Forest Service regulations implement NFMA's requirement that the government address how forest plans provide for plant and animal diversity. Rules enacted in 1982 required the Forest Service to identify and select MIS "to estimate the effects of each [management] alternative on fish and wildlife populations." 36 C.F.R. § 219.19(a)(1) (1999). The Department of Agriculture ("Department") substantially amended the 1982 regulations in November 2000, see 65 Fed.Reg. 67,568 (Nov. 9, 2000), and followed those somewhat confusing amendments with a bewildering series of transitional rules. First, the 2000 regulations included a transition provision that initially delayed the application of its substantive provisions to project decisions until November 2003. See 36 C.F.R. § 219.35(d) (2001). The Department subsequently proposed revisions to the 2000 regulations and further extended the transition period for applying the substantive provisions to project decisions. See id. (2004); 68 Fed.Reg. 53,294 (Sept. 10, 2003); 67 Fed.Reg. 72,770 (Dec. 6, 2002). New rules replaced the 2000 planning regulations in January 2005. 70 Fed.Reg. 1023 (Jan. 5, 2005). The 2005 rules include yet another transition provision with directions for the application of MIS. 36 C.F.R. § 219.14(f) (2005); 70 Fed. Reg. at 1048, 1052; see generally Silverton Snowmobile Club v. United States Forest Serv., 433 F.3d 772, 785 n. 4 (10th Cir. 2006) (describing how "[t]he regulations which implement the NFMA have been frequently amended").

Under the transition provisions, from November 9, 2000, until the promulgation of final planning regulations, the Forest Service was directed to "consider the best available science in implementing" a forest plan. 36 C.F.R. § 219.35(a), (d) (2004). When the Forest Service issued its Decision Notice in October 2001 and filed its appellate brief in this court in May 2004, it did not contend that the transition provisions of the 2000 regulations applied to the Project. The Forest Service only considered authorization of the Project under the "1982 rule," those regulations in place prior to the 2000 amendments. See 36 C.F.R. § 219.19 (1999).

In a Rule 28(j) letter filed one week before oral argument, the Forest Service informed us of the Department's publication of an interpretative rule in September 2004. 69 Fed.Reg. 58,055 (Sept. 29, 2004); see also FED. R.APP. P. 28(j). The interpretative rule explained that the 2000 regulations rendered the 1982 rule inoperative for project-specific decisions made after November 9, 2000. The interpretative rule stated that, during the...