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Native Ecosystems Council v. U. S. Forest Service


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Native Ecosystems Council and The Ecology Center (NEC) appealed a district court’s summary judgment that the United States Forest Service (USFS) approval of the North Elkhorns Vegetation Treatment Project (Elkhorn Project or Project) was not arbitrary and capricious, in view of the National Forest Management Act (NFMA),[1] the Administrative Procedure Act (APA),[2] and the National Environmental Policy Act (NEPA).[3]

The Elkhorn Wildlife Management Unit (Elkhorn Wildlife Unit), within the Elkhorn Mountains,[4] comprises part of the Helena National Forest (HNF).[5] The proposed Elkhorn Project, described as a “wildlife improvement project involving a timber sale,”[6] fell within the Elkhorn Wildlife Unit. Thus, in accordance with NFMA in light of APA, and in accordance with NEPA, the objectives set forth in the HNF Plan partially governed USFS approval of the Project.

At its core, the court’s analysis centered about the completeness of the administrative record to the extent it could provide a rational basis for USFS approval of the Elkhorn Project. Specifically at issue was USFS’ calculation of “Hiding Cover”[7] percentage, a lower limit of which the HNF Plan established. NEC, disputing USFS calculations, claimed the Hiding Cover that would result from the Project did not comply with the HNF Plan and thus did not comply with NFMA in light of APA. Further, NEC claimed a deficiency in the Environmental Impact Statement (EIS) for the Project resulting from incorrect USFS Hiding Cover calculations, thereby violating NEPA. In an opinion by Judge Gould, the unanimous panel reversed and remanded on de novo review of the lower court’s summary judgment.[8]

Adopted in 1986 pursuant to NFMA, the HNF Plan, in part, established standards directed toward the security of big game species within HNF.[9] One such standard required thirty-five percent Hiding Cover[10] for each elk herd.

The Elkhorn Wildlife Unit arose from Congress’ 1976 request to USFS to evaluate whether to designate 77,346 acres of HNF and Deerlodge National Forest a Wilderness Area. Because of “the presence of valuable wildlife resources, and the predominance of public concern for wildlife values in the area,” USFS recommended establishing a “special management unit with a management direction emphasizing wildlife,” resulting in formation of the Elkhorn Wildlife Unit, with its own standards “with which any site-specific projects must comply and which have been incorporated into the HNF Plan.”[11] Further, the panel noted that, “[r]elevant to this appeal, [USFS was limited to considering only] ‘land management activities’ in the Elkhorn Wildlife Unit when ‘they are compatible with management direction for wildlife.'”[12] Still further, the panel noted the general unsuitability of the Elkhorn Wildlife Unit for timber harvesting on the basis of the land’s designation as a Wildlife Management Unit.

USFS proposed the 1996 Elkhorn Forest Plan Amendment to the HNF and Deerlodge National Forest Plan that would have changed the emphasis of the Elkhorn Wildlife unit from wildlife management specifically to a broader “ecosystem management.”[13] A district court concluded the amendment was “significant” and thus USFS had violated NEPA in failing to prepare an EIS for the amendment,[14] after which USFS abandoned the amendment. However, the district court did not preclude USFS from
pursuing future projects within the Elkhorn Wildlife Unit to the extent the projects remained consistent with the HNF Plan, NFMA, and NEPA.

USFS proposed the Elkhorn Project in 2000, published an EIS and Record of Decision (ROD) in 2001, and selected a 655 acre timber harvest within a 755 acre area of forest in the northwest corner of the Elkhorn Wildlife Unit as part of “a wildlife habitat improvement project that will involve a timber sale (commercial thinning) as the tool to achieve part of the desired condition.”[15] Relying on 36 C.F.R. § 219.27 (1999), the Forest Supervisor concluded the harvest was appropriate under the wildlife management priorities of the HNF Plan, because the project would improve wildlife habitat “through the ‘rejuvenation’ of ‘the winter range forage base for species such as deer, elk, and moose,’ and the creation of ‘a sustainable habitat’ for other wildlife species.” But, the court noted, “the proposed project would create a ‘broad swath of open forest (approximately 3 miles long and ¼ to mile wide),’ reconstruct a road, and construct a non-motorized loop trail.”[16]

Despite discounting the value of the hiding cover standard in maintaining elk security, the EIS governing the Elkhorn Project concluded the Sheep Creek elk herd would be left with fifty-seven percent hiding cover, greater than the lower limit (thirty-five percent) imposed by the HNF Plan. The big game standard found in the HNF Plan required “elk summer range [to] be maintained at 35 percent or greater hiding cover . . . in drainages or elk herd units.”[17] USFS calculations and briefs to the court interpreted this requirement to require only the summer range[18] of the herd to be used in the denominator, rather than the entire range[19] contemplated by the Sheep Creek elk herd unit. The EIS concluded the Project would reduce 14,112 acres available as hiding cover to 13,492 acres. NEC disputed only the denominator used to calculate the hiding cover ratio.

After publication of the Elkhorn project EIS and ROD, USFS denied NEC an administrative appeal. Subsequently, NEC filed a challenge under NEPA, NFMA, and the APA in the District Court for the District of Montana, losing on summary judgment. NEC timely appealed to the Ninth Circuit, which decided the case on de novo review.

NEC claimed the Elkhorn Project did not comply with the hiding cover requirements in the HNF Plan and thus does not comply with NFMA.[20] Further, NEC claimed the EIS was deficient under NEPA because it incorrectly calculated hiding cover and used the result to conclude the Project complied with the HNF plan.

The APA governed the Ninth Circuit’s review of the USFS decision under NFMA because NFMA lacks an express provision for judicial review. Thus, the court reviewed the decision under the “arbitrary and capricious” standard which required an in depth, but narrow, review. To overcome a claim that it “acted in an arbitrary and capricious manner, [USFS] must present a ‘rational connection between the facts found and the conclusion made.'”[21]

The Ninth Circuit noted that despite the deference due agency interpretation of its own regulations, including forest plans, agency interpretation “does not control, where . . . it is plainly inconsistent with the regulation at issue.”[22] The court “‘may not defer to an agency decision that is without a substantial basis in fact'” and cannot uphold a decision based on a ‘clear error of judgment.'”[23]

The court further noted that the 2001 EIS opinion discounting the value of the hiding cover standard in maintaining elk security does not alleviate the USFS duty to comply with a forest plan in general, and the HNF Plan in particular, under NFMA. The Ninth Circuit criticized USFS, pointing out that the agency should have proposed an amendment to the HNF plan’s standards, complying with NEPA and NFMA, rather than bypassing a regulation USFS found unimportant.

Thus, the court proceeded to analyze the administrative record in an attempt to discern a rational basis for the EIS denominator in the hiding cover calculation. First, the court noted that the standard in the HNF Plan may be read to use the entire elk herd unit or drainage or to use only the summer range portion. The court’s reading of the record did not find either. Instead, the court determined the EIS ignored portions of the Sheep Creek elk herd unit comprising private and non-HNF public lands and assumed the summer range included only the extent of the area of the Elkhorn Wildlife Unit falling within the boundaries of the HNF, approximately 24,000 acres. The court determined this to fly in the face of the plain language of the HNF Plan, requiring “[t]he cover analysis [to] be done on a drainage or elk herd unit basis . . . The EIS thus did not ensure that the Elkhorn project would comply with the HNF Plan and failed to comply with NFMA.”[24]

The court continued its NFMA analysis by noting that USFS “calculations need not be perfect,”[25] but noting further that the record was absent data required to determine compliance with the HNF Plan, and thus NFMA. Based on the “substantially varying perimeters [sic] of how [USFS] measure[d] whether the Sheep Creek elk herd’s hiding cover standard [was] met,” a 1995-1996 conclusion by USFS that HNF lacked sufficient hiding cover, and a review of two maps of the area that lacked legends, the court concluded USFS did not present a rational basis for the calculations found in the EIS. Thus, the court concluded it could not determine whether USFS complied with the HNF Plan.

The court also conducted its NEPA review under the APA that authorized courts “to set aside agency actions adopted ‘without observance of procedure required by law.'”[26] The court reviewed the EIS under the “rule of reason standard,” requiring “a pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.”[27] Thus, the court’s “task [was] to ensure that the agency has taken a ‘hard look’ at the potential environmental consequences of the proposed action.”[28]

The court’s NEPA analysis applied its NFMA analysis conclusions that the EIS calculations ignoring private and non-HNF public lands from the elk herd’s summer range were improper. Further, the court noted that in its briefs, USFS estimated the summer range to extend to 29,000 acres and held that “an agency may not rely on incorrect assumptions or data in an EIS.”[29] Because “the agency [was] required to ‘insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements,” and USFS “did not disclose in the Elkhorn project EIS that its hiding cover measurement was done over an improper (and as it now acknowledges, smaller) area,” the court held the EIS hiding cover calculation “did not provide a ‘full and fair’ discussion of the potential effects of the project on elk hiding cover . . . .”[30] Thus, the court held that the project violated NEPA, as well as NFMA.

In conclusion, the Ninth Circuit panel held that because the record did not provide a basis for the USFS determination that the Elkhorn Project would not violate the hiding cover standard of the HNF Plan, “the agency’s approval of the project was arbitrary and capricious and a violation of NFMA. Further, the panel held that because the EIS was inadequate under NEPA in light of a hiding cover calculation inconsistent with the HNF Plan, USFS failed to “take a ‘hard look’ at the project’s true effect and failed to inform the public of the project’s environmental impact.”[31] The Ninth Circuit reversed and remanded to the project to USFS to recalculate elk hiding cover in compliance with NFMA and NEPA..

[1] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

[3] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370f (2000).

[4] “The Elkhorn Mountains are one of the most heavily hunted areas in the State of Montana.” Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 960-61 (9th Cir. 2005).

[5] The Elkhorn Wildlife Unit also comprises part of the Deerlodge National Forest.

   [6] Native Ecosystems, 418 F.3d at 957.

[7] “‘Hiding cover’ is a ‘timber stand which conceals 90 percent or more of a standing elk at 200 feet.'” Id. at 957 n.2. Hiding cover, among other elements, offers elk security within “one of the most heavily-hunted areas in . . . Montana.” Id. “Elk security is the ‘protection inherent in any situation that allows elk (and presumably deer) to remain in defined areas despite an increase in stress or disturbance associated with the hunting season or other human activities.” Id.

[8] NEC also argued the approval of the Elkhorn Project was arbitrary and capricious on the theory the Project will threaten the forest-wide viability of the Northern Goshawk. However, in a footnote at the opinion’s conclusion, the panel explained that it refused to consider NEC’s arguments regarding the Goshawk because “NEC relied on evidence outside the administrative record in support of its argument of inadequate monitoring of the Northern Goshawk in the Helena National Forest. Upon remand, subject to agency regulations, NEC may have the opportunity to introduce evidence on goshawk monitoring before the agency in the first instance.” Id. at 966 n.12. Further, the panel denied NEC’s motion to supplement the record on appeal.

[9] The Helena National Forest comprises 975,088 acres in Montana, including much of the Elkhorn Mountains.

[10] As mentioned above, the calculation of Hiding Cover percentage was at the core of NEC’s claims.

[11] Id. at 957.

[12] Id.

[13] Id. at 958 (noting that such a change would have put wildlife conservation “on par” other priorities, e.g., mining, timber, and grazing)

[14] “Unlike NFMA, NEPA does not ‘mandat[e] that agencies achieve particular substantive environmental results.'” Id. (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989)). “Rather, agencies must comply with NEPA’s procedural requirements, ensuring both that the agency ‘carefully consider’ a project’s environment impacts, and that the ‘relevant information will be made available,’ so that the public can ‘play a role in both the decisionmaking [sic] process and the implementation of that decision.'” Id. (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). Further, NEPA mandates an EIS for actions “significantly affecting the quality of the human environment.” Id. (citing 42 U.S.C. § 4332(2)(C)). “An EIS must provide a ‘full and fair discussion of significant environmental impacts,’ and inform ‘decisionmakers [sic] and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.'” Id. (quoting 40 C.F.R. § 1502.1).

[15] Id.

[16] Id.

[17] Id. at 961.

[18] Estimates of summer range in the administrative record varied from the value used in the EIS, 24,000 acres corresponding to the portion of the Elkhorn Wildlife Unit within HNF, to previous estimates from 1995-1996 of 34,220 acres, corresponding to areas within and without HNF. Id. at 963.

[19] The entire range contemplated comprised 45,675 acres. Id. at 961.

[20] See 16 U.S.C. § 1604(i).

[21] Native Ecosystems, 418 F.3d at 960 (citing Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir. 2004)).

[22] Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1069 (9th Cir.1998).

[23] Sierra Club v. U.S. Envtl. Prot. Agency, 346 F.3d 955, 961 (9th Cir. 2003) (quoting Fed. Power Comm’n v. Fla. Power & Light Co., 404 U.S. 453, 463 (1972) and Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

[24] Native Ecosystems, 418 F.3d at 963 (emphasis in original).

[25] Id.

[26] Id. at 960 (quoting Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1165 (9th Cir. 2003)).

[27] California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).

[28]Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004).

[29] Native Ecosystems, 418 F.3d at 964 (citing 40 C.F.R. § 1500.1(b) (2005)).

[30] Id.

[31] Id. at 965.

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