Home » Case Summaries » 2017 » In re Big Thorne Project, 857 F.3d 968 (9th Cir. 2017).

 
 

In re Big Thorne Project, 857 F.3d 968 (9th Cir. 2017).

 

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Several environmental groups (Plaintiffs)[1] brought suit against the United States Forest Service (USFS), with the state of Alaska proceeding as an intervenor, in the United States District Court for the District of Alaska. Plaintiffs sued under the Administrative Procedure Act (APA)[2] and the National Forest Management Act (NFMA)[3] challenging the Big Thorne logging project in Alaska’s Tongass National Forest. The district court granted summary judgment to the defendants, dismissing all claims,[4] and Plaintiffs appealed. The United States Court of Appeals for the Ninth Circuit, reviewing under the arbitrary and capricious standard,[5] affirmed.

Approved by USFS to help revive the economy of southeastern Alaska, Big Thorne authorizes logging on nearly 6,200 acres and the construction of more than 80 miles of roads in old-growth rainforest on Alaska’s Prince of Wales Island. These reductions in the number of old-growth trees will impact the Alexander Archipelago wolf because “a smaller forest will support fewer deer, which, in turn, will support fewer wolves.” New roads create an additional pressure by allowing wolf and deer hunter greater access to the forest. While the Alexander Archipelago wolf is not listed under the Endangered Species Act,[6] it is protected under the Forest Plan.

Under NFMA, USFS is required to develop a forest plan which sets broad goals and guidelines for managing land and resources in each national forest.[7] Agency actions must comply with both that forest plan and NFMA.[8] In this case, the relevant provisions of the Forest Plan[9] recommended protecting the Alexander Archipelago wolf by maintaining a sustainable deer population and limiting road density. The two substantive issues were 1) whether the Forest Plan provided safeguards for the Alexander Archipelago wolf in compliance with NFMA, and 2) whether USFS’s approval of Big Thorne complied with the Forest Plan.

As an initial matter, the Ninth Circuit held Plaintiffs had standing to bring claims under NFMA. Standing can be established by demonstrating a particularized harm to “recreational” or even “mere esthetic interests.”[10] Plaintiffs argued that their harms were particularized because the Forest Plan would impact their use of the forest for fishing, hunting, and their enjoyment of solitude. The court reasoned that Plaintiffs’ numerous declarations sufficiently demonstrated particularized injuries that were “fairly traceable” to the actions under the Forest Plan.[11]

Next, the Ninth Circuit held that USFS had lawfully approved the Forest Plan and turned to whether USFS was required under the Forest Plan to maintain viable wolf populations or sustainable wolf populations. While NFMA regulations at the time required that the wolf be maintained at viable populations,[12] Plaintiffs argued that USFS violated a provision within the Forest Plan calling for a sustainable wolf population.[13] Plaintiffs further argued that if the sustainability standard were discretionary, as USFS asserted, then the Forest Plan violated NFMA by failing to provide an enforceable mechanism for maintaining even viable populations.

The Ninth Circuit held that consistent with NFMA, the sustainability provision was discretionary, and what mattered under the Forest Plan was that the agency maintained viable populations. The court reasoned that the inclusion of a superseded regulation in the Forest Plan required maintenance of viable wolf populations, whereas the sustainability provision only required USFS to consider protecting sustainable populations “where possible.” This discretion allowed the Forest Service flexibility in its decision making congruent with NFMA, which required USFS to balance competing-use goals.[14]

The Ninth Circuit rejected Plaintiffs’ argument that by adopting a forest plan with an unenforceable sustainability provision, USFS failed to meet its obligation under NFMA. The court reasoned that USFS met its obligation under NFMA to manage competing uses. With respect to the superseded regulation requiring the agency to maintain viable populations, the court held that USFS supplied a reasonable fit between its means and ends. USFS’s Record of Decision reflects that in considering alternate forest plans, USFS concluded that all alternatives had at least a moderately high probability of protecting wolf viability. The court reasoned that under a deferential standard of review, USFS’s discussion of viability was neither arbitrary nor capricious.

The Ninth Circuit then concluded that USFS’s approval of Big Thorne was consistent with the Forest Plan’s requirement to maintain viable wolf populations. The court reasoned that USFS was required to consider protecting sustainable populations only where possible. The Ninth Circuit held that USFS’s decision to prioritize “jobs over wolves” balanced competing goals consistent with the Forest Plan and was neither arbitrary nor capricious.[15] The court reasoned that USFS supplied a reasonable fit between means and ends by explaining that Big Thorne satisfied USFS’s multiple-use mandate. Further, achieving the sustainability minimums for the wolf populations was not possible, even absent the logging plan.

In sum, the Ninth Circuit affirmed the district court’s grant of summary judgment because neither the Forest Plan nor the Big Thorne Project violated the NFMA or the APA. The court reasoned that a sustainable wolf population was a discretionary duty under the Forest Plan, and USFS had otherwise met its legal obligation under NFMA to manage for a viable population.

 

Footnotes    (↵ returns to text)

  1. Southeast Alaska Conservation Council, Alaska Wilderness League, Sierra Club, National Audubon Society, Natural Resources Defense Council, Cascadia Wildlands, Greater Southeast Alaska Conservation Community, Greenpeace, Center for Biological Diversity, and the Boat Company.
  2. 5 U.S.C. §§ 551–559, 701–706, 1305, 3344, 4301, 5335, 5372, 7521 (2012).
  3. 16 U.S.C. §§ 472a, 521b, 1600, 1611–1614 (2012).
  4. In re Big Thorne Project, 93 F. Supp. 3d 1134, 1151 (D. Alaska 2015).
  5. 5 U.S.C. § 706(2)(A) (2012).
  6. 16 U.S.C. §§ 1531–1544 (2012).
  7. See 16 U.S.C. § 1604(a), (e), (g).
  8. See id. § 1604(i).
  9. U.S. Dep’t of Agric. & Forest Serv. Alaska Region, Tongass National Forest Land and Resource Management Plan Amendment 24 (2008), https://perma.cc/N9LG-G2NV.
  10. Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009).
  11. Cottonwood Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d 1075, 1081 (9th Cir. 2003).
  12. 36 C.F.R § 219.19 (2000).
  13. U.S. Dep’t of Agric. & Forest Serv. Alaska Region, supra note 149, at 24.
  14. See NFMA, 16 U.S.C. § 1604(g)(3)(B) (2012).
  15. APA, 5 U.S.C. § 706(2)(A) (2012).
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