Home » Case Summaries » 1997 » Oregon Natural Resources Council v. Lowe


Oregon Natural Resources Council v. Lowe



The Oregon Natural Resources Council (ONRC) and several other environmental groups brought an action alleging that the Forest Service failed to comply with both the National Forest Management Act (NFMA)[1] and the National Environmental Policy Act (NEPA)[2] when it prepared and amended a land and resource management plan for Winema National Forest in southcentral Oregon. The Ninth Circuit approved the decisions and methods of the U.S. Forest Service (Forest Service) and affirmed the district court’s grant of summary judgment in favor of the Forest Service.

This controversy involved the Winema National Forest Land and Resource Management Plan (LRMP) and a subsequent amendment to the LRMP. ONRC challenged the two planning decisions on the basis that the Forest Service did not comply with NFMA. NFMA directs the Secretary of the Forest Service to develop, maintain, and revise resource plans, and to issue regulations for the development and revision of forest plans.[3] As part of a forest plan, wildlife habitat is managed to ensure viable populations and management indicator species (MIS) are selected and monitored. MIS population changes are believed to indicate the effects of management activities. The LRMP divided the forest into a number of management areas, one of which was designated to maintain old growth forests and old growth-associated species. Five MIS for the old growth area were selected from the Forest Service’s regional plan for the Pacific Northwest.

ONRC also challenged the LRMP for failure to comply with NEPA. NEPA requires the preparation of an Environmental Impact Statement (EIS) for any major federal action “significantly affecting the quality of the human environment.”[4] Both a draft and a final EIS generally are prepared for LRMPs. In development of the Winema LRMP, areas of lands set aside as old growth were based on a previously prepared old growth inventory, and many of the tracts that were designated as old growth no longer contained old growth stands. Similarly, several areas contained old growth but were not designated as such. The Forest Service also selected a specific old growth stand to help fulfill the requirements for the MIS, but it failed to prepare a supplemental EIS. Instead, the Forest Service issued a finding of no significant impact and submitted a less demanding Environmental Assessment (EA).

ONRC challenged the LRMP for violating NFMA on two grounds. First, the group argued that the Forest Service erred in adopting MIS and management parameters from the regional plan, which was outdated and only intended to provide minimal legal requirements. Second, ONRC challenged the decision not to include the white-headed woodpecker as an MIS. The Ninth Circuit reviewed ONRC’s NFMA challenges under the “arbitrary and capricious” standard set forth in the Administrative Procedure Act.[5]

The Ninth Circuit rejected all of ONRC’s NFMA challenges. Although acknowledging that the data used to develop the regional plan dated back to the late seventies and early eighties, the Ninth Circuit did not believe that the studies cited were so outdated as to make the Forest Service’s reliance upon them arbitrary and capricious. Also, even though the management strategies for the MIS were only intended to be minimums, the Ninth Circuit was unwilling to hold that the Forest Service violated NFMA when it adopted those strategies in the Winema Forest LRMP. Although ONRC had a report[6] which supported their assertion that the management strategies were inadequate to protect the goshawk (one MIS), that document postdated both the LRMP and its challenged amendment. Thus, the Forest Service did not act in an arbitrary and capricious manner based on the information available at the time of the decision. On the final NFMA challenge, the Ninth Circuit held that it was not arbitrary and capricious to fail to designate the white-headed woodpecker as an MIS. The Forest Service asserted that the white-headed woodpecker was adequately protected through consideration of other MIS, such as the pileated woodpecker and the goshawk. Accordingly, the Ninth Circuit found no violation of NFMA.

ONRC also presented two claims challenging the LRMP for failing to comply with the requirements of NEPA. First, ONRC claimed that the LRMP violated NEPA because it was based on inadequate information about the actual location of existing old growth and because subsequent EISs were not completed as new information became available. Second, ONRC argued that the Forest Service violated NEPA by not responding in the EIS to valid scientific criticisms. The Ninth Circuit reviewed the NEPA challenges to the LRMP under the “rule of reason” standard, which requires that the court determine whether the agency took a “hard look” at the decision’s environmental consequences.

On the first challenge, the Ninth Circuit inquired whether the Forest Service’s EIS was required to consider the environmental significance of size, configuration, and connectivity of old growth forest stands rather than simply specifying a quantity to be protected. The Ninth Circuit stressed that NEPA ensures a process and not a particular result. The court pointed out that the criticisms were not directed at the EIS, but were aimed at the LRMP itself. Because the specific factors ONRC claimed were missing from the EIS did not have to be included as long as the EIS fulfilled the purpose for which it was intended under NEPA, the Forest Service’s failure to consider those factors was not arbitrary and capricious.

After evaluating ONRC’s second NEPA challenge to the LRMP, the Ninth Circuit concluded that NEPA had not been violated for failure to consider scientific criticisms. In particular, ONRC referred to the testimony of biologists from the Oregon Department of Fish and Wildlife, the Klamath Tribe, and Winema. In response to ONRC’s complaints that the response given by the Forest Service was inadequate to meet NEPA requirements, the Forest Service stated that it was constrained to operate under its regional guide. The Ninth Circuit declined to put itself into the middle of the debate, and pointed out that the court’s role is limited to ensuring that the agency took a “hard look” at the environmental consequences. Finding this standard met, the Ninth Circuit found no NEPA violation and accordingly affirmed the district court’s grant of summary judgment for the Forest Service.

The dissent disagreed with the majority’s determination that the failure to consider the specific land management factors of size, configuration, connectivity, and ecological condition was not a violation of NEPA. The dissent argued that it was a violation of NEPA to conduct an EIS based on an old timber inventory which did not accurately represent the location of old growth tracts. The Regional Forester himself had stressed the importance of considering such attributes of the forest when developing an LRMP. In addition, the Ninth Circuit previously held that a forest plan was unreasonable when it included no consideration of the configuration of old growth that was to be protected,[7] and the dissent found the inadequacy of the presently contested EIS even more extreme. Accordingly, the dissent would have reversed the district court and remanded for an injunction of the Forest Service until such time as it was able to prepare an adequate EIS based on current, available data.

[1]National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614 (1994).

[2]National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d (1994).

[3]16 U.S.C. § 1604(g) (1994); 36 C.F.R. § 219 (1997).

[4]42 U.S.C. § 4332(2)(C) (1994). The standard provides that a reviewing court shall set aside agency actions, findings, or conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.

[5]5 U.S.C. § 706(2)(A) (1994).

[6]Pacific Northwest Regional Forester’s Draft Interim Goshawk Management Direction.

[7]Marble Mountain Audubon Soc’y v. Rice, 914 F.2d 179, 182 (9th Cir. 1990).

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