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Inland Empire v. United States Forest Service



In this case the Ninth Circuit held that the U.S. Forest Service’s population viability analysis for seven “sensitive” species in an Environmental Impact Statement (EIS) complied with regulations implementing the National Forest Management Act (NFMA) and the cumulative impacts analysis required under the National Environmental Policy Act (NEPA).

In 1992, the U.S. Forest Service proposed eight timber sales in the Upper Sunday Creek Watershed in the KootenaiNational Forest in northwest Montana. Inland Empire and four other environmental groups sought to enjoin the sales by challenging the adequacy of the EIS the Forest Service had prepared for the timber sales, portions of which would harvest old-growth habitat. Plaintiffs claimed that the EIS did not properly analyze population viability for seven sensitive species living in the sales area as NFMA requires, nor the cumulative impacts of the action as NEPA requires. The district court granted summary judgment for the Forest Service, reasoning that a reviewing court must defer to the agency’s choice of scientific methods. Plaintiffs filed an expedited appeal. The Ninth Circuit affirmed the decision of the district court and upheld the Forest Service’s approach to population viability and cumulative effects analyses.

Plaintiffs claimed the EIS did not properly analyze the effects of the timber sales on the population viability of sensitive species living in the area. Sensitive species are not endangered under the Endangered Species Act, but there is concern for the viability of their populations. Under regulations implementing the NFMA, the Forest Service has a duty to ensure viable species populations.[1] Plaintiffs argued that the regulation requires the Service to analyze the population size of each species, the population trends of each species, and the species members’ ability to interact with other groups of the species living in neighboring areas. Instead, the Forest Service used three approaches to analyzing the viability of the sensitive species, none of which used the criteria set out by the plaintiffs.

The Ninth Circuit held that it must uphold the Forest Service’s interpretation of its own regulations unless the interpretation was “arbitrary and capricious.” According to the regulation, the Forest Service may discharge its duties through habitat management as long as “habitat [is] provided to support, at least, a minimum number of reproductive individuals and that habitat [is] well distributed so that those individuals can interact with others in the planning area.”[2] An agency’s interpretation is especially due deference where “questions of scientific methodology are involved.” Although the court encouraged the thorough population viability analysis that the plaintiffs suggested, the court found that the regulation did not require such an analysis. Since the Forest Service’s methodology was not plainly erroneous or inconsistent with the regulation, the Ninth Circuit upheld its approach to population viability. According to the court, the Service’s methodology reasonably ensures such populations by requiring that the decision area contain enough of the types of habitat essential for survival.

Plaintiffs also contended that the Forest Service did not comply with its duties regarding “management indicator species.” Regulation 219.19 provides that the Service may select a “management indicator species” from the area as representative of the effect of management activities on species’ population changes.[3] Of several species reliant on the old-growth area for habit, the Forest Service selected the pileated woodpecker as the indicator species. The Service found that the chosen alternative would result in a “slight downward population trend” in pileated woodpeckers as a result of the timber sales. The Ninth Circuit found that the Service did not act arbitrarily or capriciously when it estimated the effects of the alternatives on the population of the management indicator species by analyzing the amount of the species’ habitat that each alternative would reduce.

Plaintiffs also alleged that the Service violated NEPA’s “cumulative impacts” requirement because its viability analysis in the EIS only examined the effect of the timber sales on wildlife populations living within the Upper Sunday project boundaries, and did not consider the impact on species living adjacent to the area. NEPA regulations state that an EIS must consider direct, indirect, and cumulative impacts of major federal actions.[4] Indirect effects result from population and land use changes and cumulative impacts result from the combined effects of past, present, and future actions.[5] Plaintiffs argued that the EIS should have included the “indirect” and “cumulative” effects of the timber sales on animal populations “adjacent to the Upper Sunday area.” Plaintiffs contended that the Service should not have limited the scope of its population analysis to artificial project boundaries, but should have gone beyond to analyze the effects on the species’ populations as part of an ecosystem. The district court again deferred to the Forest Service’s methodology. The Ninth Circuit rejected plaintiffs’ reading of these regulations and affirmed the district court, holding that the Service did not have to consider impacts of the sales on animal populations adjacent to, but outside, the project area.

In rejecting plaintiff’s arguments, the Ninth Circuit first noted that plaintiffs did not base their argument on the proper regulations. Most challenges to “cumulative” and “indirect” effects analysis contend that the EIS did not properly consider effects resulting from the proposed project in relation to the cumulative impacts of other actions. Here, the plaintiffs have no cumulative impacts argument; rather, they argue the geographic scope of the EIS is too small.

The Ninth Circuit found that adopting plaintiffs’ position as a rule of law would be impractical. NEPA does not require the government to do the impractical. Under the plaintiffs’ approach, an agency would have to analyze separately each species to determine the area covered by its ecosystem and then analyze population viability in that area–a potentially burdensome and impractical analytical task. The Ninth Circuit also supported the Forest Service’s limitations on the scope of analysis of cumulative effects because of the difficulty of determining when land stops being “adjacent.” Furthermore, the Service did not limit its analysis of cumulative effects to the artificial boundaries of the action area. For four of the species, the Forest Service extended its analysis beyond the Upper Sunday area to include the entire watershed. The Ninth Circuit held that plaintiffs failed to meet their burden to provide the court with proof of why the Service’s decision not to extend its analysis beyond the Watershed was arbitrary and capricious.

[1]36 C.F.R. § 219.19 (1996).

[2] Id.

[3] Id. § 219.19(a)(2).

[4]40 C.F.R. § 1508.25(c) (1996).

[5] Id. § 1508.8(b), 1508.7.

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