Home » Case Summaries » 1996 » Southwest Ctr. for Biological Diversity v. United States Forest Serv.

 
 

Southwest Ctr. for Biological Diversity v. United States Forest Serv.

 

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The Southwest Center for Biological Diversity (Southwest Center) filed an action, seeking declaratory and injunctive relief, challenging a United States Forest Service (Forest Service) decision to proceed with a salvage timber sale. Southwest Center alleged that the Forest Service’s decision was arbitrary and capricious and procedurally violated the Rescissions Act of 1995 (Act). The district court granted the Forest Service’s motion for summary judgment, holding that there were no per se procedural violations of the Act and that the decision to proceed with the sale was not arbitrary or capricious. The district court also struck all documents submitted by the parties that were not part of the administrative record relied upon by the Forest Service. The Ninth Circuit affirmed.

For a proposed salvage timber sale, the Act requires the Forest Service to prepare a document that combines an environmental assessment under the National Environmental Policy Act (NEPA) and a biological evaluation under the Endangered Species Act (ESA).[1] Under the Act, the Forest Service has broad discretion to determine the scope of this document and its consistency with any applicable forest management plans or guidelines. After a 1994 forest fire damaged thousands of acres of the Coronado National Forest, the Forest Service proposed the Rustler Salvage Timber Sale (Rustler Sale) to salvage sixty-nine acres of timber. Pursuant to the Act the Forest Service prepared a document, titled a Biological Assessment and Evaluation (BA & E), which concluded that the proposed sale would have no effect on any endangered species, including the Mexican Spotted Owl. This “no effect” conclusion conflicted with an internal United States Fish and Wildlife Service (USFWS) policy statement that agency actions within one mile of a Mexican Spotted Owl Protected Activity Center, or actions that alter mixed conifer or pine-oak forest habitats, may affect the owl.

There was no dispute that the Rustler Sale was within one mile of a Protected Activity Center, or that it would alter mixed conifer and pine-oak habitats. Despite these facts, the Forest Service determined that the sale would have no effect on the Mexican Spotted Owl, and issued a categorical exclusion for the sale. The Forest Service, pursuant to its regulations, is allowed to categorically exclude from NEPA requirements, absent extraordinary circumstances, sales of less than one million board feet and requiring less than a mile of road construction. The Rustler Sale met these requirements.

After the Forest Service published notice of the proposed sale, Southwest Center filed suit in district court alleging that the Forest Service violated the Act by failing to prepare a combined NEPA environmental assessment and ESA biological evaluation (EA/BE) for the sale. It also alleged that both the Forest Service’s “no effect” finding and the categorical exclusion decision were arbitrary and capricious. The district court, confining its review to the document in the administrative record, granted the Forest Service’s motion for summary judgment.

The Ninth Circuit, reviewing de novo the administrative record of decision, agreed with the district court that the BA & E and the categorical exclusion issued by the Forest Service met the requirements of the Act. The court noted the Forest Service’s initial determination, that the Rustler Sale would have no effect on the Mexican Spotted Owl, obviated the need for formal consultation with USFWS pursuant to the ESA. Also, NEPA allowed for the issuance of categorical exclusions, a fact that Southwest Center did not contest. Because section 1611(c)(1)(C) of the Act vested sole discretion in the Forest Service to determine the “scope and content of the documentation and information . . . relied upon” in making its decision, the court deferred to the Forest Service’s permissible conclusion that a document other than a combined EA/BE would satisfy the requirements of the Act.

Southwest Center argued the Forest Service’s conclusion that the sale would have no effect on the owl, in apparent conflict with USFWS’s Mexican Spotted Owl Policy, was arbitrary and capricious. The court disagreed, finding that the Forest Service had no obligation to consider the views of other agencies in approving sales of salvage timber pursuant to the Act. Emphasizing the deference owed to the Forest Service, despite any imperfections in its analysis, the court held that the “no effect” finding, and the categorical exclusion issued in reliance of that finding, were not arbitrary or capricious.

The Ninth Circuit reviewed the district court’s decision to strike evidence not in the administrative record for an abuse of discretion. Southwest Center sought to submit a Forest Service memorandum, issued over a month after the Rustler Sale decision, delineating interagency consultation procedures to be followed in making a salvage timber sale decision. The Ninth Circuit, noting the few circumstances in which a court will consider extra-record evidence, found no abuse of discretion in striking the memo. The court also found no abuse of discretion in the district court’s failure to consider additional maps and declarations of the sale’s proximity to Mexican Spotted Owl habitat, finding that this information already existed in the administrative record.


[1]16 U.S.C. § 1611(c)(1)(A) (1994 & Supp. 1995).

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