WildWest Institute and Friends of the Bitterroot, Inc. (collectively WildWest) filed suit against the United States Forest Service (USFS), alleging the agency’s hazardous fuel reduction project for Montana and Idaho’s Bitterroot National Forest violated the National Environmental Policy Act (NEPA),[1] the National Forest Management Act (NFMA),[2] and the Healthy Forests Restoration Act (HFRA).[3] Following a Ninth Circuit opinion affirming denial of WildWest’s request for a preliminary injunction[4] and subsequent grant of summary judgment in favor of USFS by the United States District Court for the District of Montana, WildWest appealed to the Ninth Circuit. The Ninth Circuit affirmed the district court’s grant of summary judgment against WildWest, holding that USFS did not commit procedural or substantive violations in its record of decision (ROD) and accompanying final environmental impact statement (FEIS).

After Montana’s Middle East Fork area of the Bitterroot National Forest suffered severe damage as a result of wildfires in the summer of 2000, USFS, pursuant to its management role over national forests, developed the Middle East Fork Hazardous Fuel Reduction Project (Project). The Project’s purpose was to reduce fire threats in the region, restore fire-adapted ecosystems, and restore stands affected by a Douglas fir bark beetle epidemic by treating infested and at-risk forest lands. In compliance with HFRA, USFS studied, developed, and described the proposed agency action, a no-action alternative, and an additional action alternative proposed by WildWest.[5]

Following at least twelve public meetings, a forty-five day public comment period, and analyses of alternative plans, USFS announced the FEIS at a press conference. Several vocal opponents of the Project were excluded from the press conference. In the FEIS, USFS adopted a modified version of the agency’s alternative, which called for treatment of 4938 acres in the Middle East Fork area, including approximately 2983 acres of commercial treatments. In response to WildWest’s objections during the comment process, USFS made a number of changes to its proposed alternative before publication of its ROD, which resulted in 1534 acres from being dropped from treatment. Specifically, USFS decided not to treat old growth habitat or units with “greater than 15% detrimental soil reliance or units . . . projected to have greater than 15% disturbance after the treatments,” not to perform summer ground-based tractor harvest operations, and not treat stands where further field review was needed to corroborate determinations of the agency’s soil scientist.[6]

On appeal, WildWest argued USFS violated NEPA in three ways: 1) by irretrievably committing resources in favor of its preferred alternative before making its final decision, 2) by failing to engage in adequate public collaboration, and 3) by failing to discuss competing views of the agency’s own soil scientist in the FEIS. Wildwest also challenged USFS’s substantive decision, alleging the Project’s impact on soil productivity, old growth habitat, species viability, and watershed sedimentation violated NFMA and HFRA. The Ninth Circuit began by examining WildWest’s argument that USFS committed procedural violations. NEPA prohibits USFS from taking action that would limit its consideration of alternatives identified in the decision-making process, including “committing resources which would prejudice the selection of alternative plans.”[7] WildWest argued that USFS violated this requirement by prematurely marking trees in preparation for logging before issuance of the ROD and FEIS. The Ninth Circuit rejected this argument, holding that USFS’s pre-marking of trees did not irretrievably commit the agency to a particular course of action because the monetary expenditure involved was not so substantial that it limited such choice. Conceding that “a financial commitment can, in some instances, constitute an irretrievable commitment” of resources, the Ninth Circuit cautioned that Ninth Circuit “cases have focused on the commitment of natural resources, not necessarily the agency’s financial resources.”[8] In the instant case, the Ninth Circuit explained that USFS’s spending of $208,000 to pre-mark trees was not such a substantial financial commitment as to limit the choice of reasonable alternatives, as demonstrated by the fact that the ROD ultimately excluded 410 acres of pre-marked timber from treatment.

Second, the Ninth Circuit rejected the allegation that USFS had violated NEPA by failure to engage in adequate public collaboration. Under NEPA, USFS is required to involve the public in its decision-making process,[9] including the specific requirement that the agency must provide notice of public meetings.[10] The Ninth Circuit court rejected WildWest’s arguments that USFS acted improperly when it removed conservation proponents from a notice mailing list, failed to announce that a HFRA project would be discussed at the meeting, failed to indicate in the FEIS that it had received more than 11,000 public comments in opposition to the Project, and failed to give notice of when the FEIS would be announced. Explaining that NEPA does not specify a particular form of notice, the Court noted that USFS had, prior to holding two public meetings, taken several steps that provided notice, including publishing an announcement in a public newspaper, issuing a news release, and sending individual notices to interested members of the public, including WildWest. Further, the Ninth Circuit explained there is no NEPA requirement that USFS identify the number of public comments received, and that USFS did properly summarize the nature of the comments and specific substantive responses in the FEIS. Finally, the court rejected the assertion that USFS violated NEPA by holding a closed press conference to announce adoption of the FEIS, explaining that NEPA contains no requirement that agencies give notice of announcements of final decisions nor requires agencies to make those announcements a public event.

Third, the Ninth Circuit rejected WildWest’s assertion that USFS violated NEPA by disregarding the data and opinions of its own soils expert. NEPA requires that, in the FEIS, USFS discuss opposing views and indicate the agency’s response to the issues raised.[11] The court held that USFS did not disregard the soil expert’s findings, pointing to an acknowledgement and explanation of USFS’s disagreement with the expert’s conclusions in the FEIS.

Next, the Ninth Circuit addressed WildWest’s substantive NFMA and HFRA claims.[12] Under NFMA, USFS may harvest timber from national forests only where soil, slope, or watershed conditions will not be irreversibly damaged.[13] Additionally, NFMA directs USFS to perform continuous monitoring and assessment in the field to evaluate the effects its management plans have on the productivity of the land.[14] Because the Bitterroot National Forest Plan does not provide specific numeric soil standards, USFS applied its Region One Soil Quality Standards (R1-SQS), which provide that the cumulative detrimental impact of activities should be no more than fifteen percent of the activity area. WildWest asserted this technique violated NFMA’s substantive soil productivity requirements because the R1-SQSs are facially unreliable, and USFS failed to properly consider cumulative impacts in determining whether the project satisfied such a standard. The Ninth Circuit rejected the first assertion on grounds that WildWest failed to raise the challenge in the district court, and declined to exercise its discretion to consider the newly raised issue.[15] The Ninth Circuit similarly rejected WildWest’s second argument because the record showed USFS considered the cumulative impacts from past timber harvests and had concluded these activities did not reduce soil or site productivity in violation of soil quality standards.

The court also rejected WildWest’s various challenges to the Project’s management of old growth habitat. HFRA requires that USFS maintain or help restore old growth stands when undertaking fuel reduction projects.[16] Accordingly, the ROD accompanying the FEIS indicated that the Project would not treat old growth habitat. WildWest challenged the assertion, arguing that USFS’s classification was flawed because it was based on an analysis of “imminently dead” trees. The Ninth Circuit rejected this argument because the “imminently dead” standard applied to tree marking, not classification of old growth status; and USFS properly applied its selected methodology. The Ninth Circuit also rejected WildWest’s argument that the Project violated substantive old growth standards, in light of USFS’s conclusion that the Project does not treat old growth. Finally, the Ninth Circuit rejected WildWest’s argument that USFS is required to designate replacement habitat. Noting WildWest’s argument relied on a nonbinding district court case,[17] the Ninth Circuit concluded that, even assuming USFS is required to designate replacement habitat, USFS had satisfied that requirement by demonstrating the Project retains “the largest, healthiest and dominant residual trees” that may someday become old growth.[18]

Finally, the Ninth Circuit examined WildWest’s argument that USFS failed to consider the Project’s impact on population trends of management indicator species (MIS) such as the pileated woodpecker, northern goshawk, and black-backed woodpecker. Under NFMA, USFS is required to provide for diversity of plant and animal communities when managing national forests.[19] WildWest argued that the FEIS did not acknowledge the pileated woodpecker’s nesting preferences. The court disagreed, pointing out that the FEIS not only considered the pileated woodpecker’s habitat needs but also explained that prior forest management activities did not appear to have affected species viability. WildWest also asserted that USFS inadequately analyzed the Project’s impact on the northern goshawk by failing to conduct surveys to identify nest stands. The court also rejected this argument, concluding that USFS properly considered the goshawk’s habitat needs because the FEIS indicated USFS conducted surveys and took steps to avoid treatment within thirty acres of existing and potential goshawk nesting areas. Next, WildWest argued that USFS did not properly consider the Project’s impact on the black-backed woodpecker. The Ninth Circuit similarly rejected this argument, explaining that the record supported USFS’s conclusion that the Project would have no impact on black-backed woodpeckers or their habitat because the FEIS noted that other areas of the Bitterroot Forest contain ample habitat for black-backed woodpeckers while the Project area contained only minimal black-backed woodpecker habitat

In summary, the Ninth Circuit affirmed the decision of the district court, concluding the district court properly granted summary judgment in favor of USFS on all of the NEPA, NFMA, and HFRA claims asserted by WildWest.

^[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

^[2] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2006)(amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).

^[3] Healthy Forest Restoration Act of 2003, 16 U.S.C. §§ 6501-6591 (2006).

^[4] WildWest Inst. v. Bull (WildWest I), 472 F.3d 587 (9th Cir. 2006).

^[5] 16 U.S.C. § 1614(c)(1) (2006) (requiring that USFS “study, develop, and describe the proposed agency action; the alternative of no action; and an additional action alternative . . . proposed during scoping or the collaborative process” when that final alternative “meets the purpose and needs of the project”).

^[6] WildWest Inst. v. Bull (WildWest II), 547 F.3d 1162, 1167 (9th Cir. 2008).

^[7] Id. at 1168 (internal citations omitted); see also 40 C.F.R. §§ 1502.2(f), 1506.1(a)(2)(2008).

^[8] WildWest II, 547 F.3d at 1168; see also Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1064 (9th Cir. 1998) (holding no NEPA violation occurredwhen USFS had not, by virtue of developing tentative harvest schedule, irreversibly committed the “resources of Ushk Bay to logging”); Conner v. Burford, 848 F.2d 1441, 1449 (9th Cir. 1988) (affirming the district court’s finding of a NEPA violation when government sold oil and gas leases within a national forest without reserving the right to prevent surface-disturbing activity).

^[9] 40 C.F.R. § 1500.2(d) (2008) (dictating that federal agencies “shall to the fullest extent possible . . . [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment”).

^[10] Id. § 1506.6(b).

^[11] Id. § 1502.9(b).

^[12] The Ninth Circuit explained that its analysis of WildWest’s substantive claims was guided by the court’s recent decision in Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en banc), noting that, under the Lands Council standard, the Ninth Circuit does not act as a reviewing body of scientists, but rather only reviews whether the agency “support[s] its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency in its expertise deems reliable.” Id. at 994.

^[13] National Forest Management Act, 16 U.S.C. §1604(g)(3)(E)(i) (2006).

^[14] Id. § 1604(g)(3)(C).

^[15] See Cold Mountain v. Garber, 375 F.3d 884, 891 (9th Cir. 2004) (explaining that, while an issue raised for the first time on appeal is generally deemed waived, the appellate court has discretion to consider the raised issue when 1) review is necessary to prevent a miscarriage of justice, 2) the issue arises on appeal because of a change in the underlying law, or 3) the issue is purely legal and does not require a further developed factual record).

^[16] Healthy Forest Restoration Act of 2003, 16 U.S.C. § 6512(e)(2) (2006).

^[17] Lands Council v. Vaught, 198 F. Supp. 2d 1211, 1224 (E.D. Wash. 2002) (holding that to comply with the NFMA, USFS must demonstrate either that adequate old growth acreage exists in the forest to satisfy USFS’s old growth standards or that the timber slated to be harvested under the Project is not needed to fulfill old growth standards).The Ninth Circuit declined to review the merits of this district court decision.

^[18] WildWest II, 547 F.3d 1162, 1174 (9th Cir. 2008).

^[19] 16 U.S.C. § 1604(g)(3)(B) (2006).

Environmental advocacy groups (collectively Sierra Forest) appealed the district court’s denial of a preliminary injunction against the United States Forest Service (USFS) in a suit challenging USFS’s decision to raise funds for fire prevention projects by awarding logging contracts for three sites in the Sierra Nevada Forest.[1] Reviewing the district court’s decision for abuse of discretion, the Ninth Circuit held that 1) Sierra Forest had a substantial likelihood of success on the merits of its claim under the National Environmental Policy Act (NEPA),[2] 2) Sierra Forest would suffer irreparable harm under USFS’s proposed logging plan, 3) the State of California’s interest in preserving the environment outweighed the USFS’s choice of funding for fire reduction efforts, and 4) advancement of the public interest favored issuance of a preliminary injunction. Accordingly, the Ninth Circuit reversed the United States District Court for the Eastern District of California and remanded the case with instructions to immediately grant a preliminary injunction against the proposed logging projects.

In response to a dramatic increase in western wildfires, USFS issued a supplemental environmental impact statement (SEIS) in 2004, which altered the 2001 final environmental impact statement (FEIS) that implemented an amendment to the Sierra Nevada forest plan. In the SEIS, USFS proposed to issue timber sale contracts to raise money for fire prevention work. Pursuant to the SEIS, USFS subsequently approved logging projects for three specific sites.

In response, Sierra Forest filed suit against USFS, claiming violations under the National Forest Management Act of 1976 (NFMA)[3] and NEPA[4] and requesting a preliminary injunction to stop the logging projects. The Attorney General of California filed an amicus brief in support of Sierra Forest and California objected to the proposed projects and sought to protect the forest’s habitat and wildlife. The district court denied the preliminary injunction.[5]

The Ninth Circuit reviews a denial of a motion for preliminary injunction for abuse of discretion, considering only whether the district court based its ruling on an erroneous legal standard or on clearly erroneous findings of fact.[6] The Ninth Circuit considers four criteria in determining whether to issue a preliminary injunction: 1) likelihood of success on the merits, 2) the possibility of irreparable harm, 3) balancing of hardships, and 4) the advancement of the public interest.[7]

The Ninth Circuit first analyzed Sierra Forests’s probability of success on the merits of its NEPA claim. The court framed the issue as a “narrow and limited issue: Does the 2004 SEIS prepared by USFS regarding its plans to sell off the forest trees comply with the requirements of NEPA?”[8] Sierra Forest argued the Forest Service’s plan to sell off forest trees under the SEIS did not comply with NEPA’s requirement to “rigorously explore and objectively evaluate all reasonable alternatives.”[9]

Specifically, the Ninth Circuit considered whether USFS could rely on its previous discussion of alternatives under the 2001 FEIS to satisfy NEPA’s discussion of alternative requirement under the 2004 SEIS. Where changed circumstances affect the factors relevant to the development and evaluation of reasonable alternatives, an agency must address those changed circumstances.[10] In this case, the Ninth Circuit identified several changed circumstances that USFS failed to account for in its 2004 SEIS, including revision of USFS’s modeling techniques and USFS’s development of a new substantive objective of selling the trees to raise funds for use in reducing and controlling forest fires. The Ninth Circuit characterized this technique as a “two for one” arrangement under which USFS planned to “[s]ell trees to loggers” and “[u]se the money to clear areas of what is potential fuel for fire.”[11] While acknowledging that two for one deals “have an attractive ring,” the Ninth Circuit determined that alternatives from the 2001 FEIS for fuel reduction needed to be considered in “light of the new urgency of fire prevention.”[12] USFS failed to consider alternative methods for funding fire reduction objectives, such as requesting appropriations from Congress, shifting agency funding priorities, and revising its fuel treatment program. Accordingly, the Ninth Circuit held the district court abused its discretion by erroneously concluding that USFS complied with NEPA’s requirement to rigorously explore and evaluate all reasonable alternatives to the proposed forest plan amendments.

Having established the probability of success on the merits, the Ninth Circuit next considered whether plaintiffs would suffer the possibility of irreparable harm as a result of the Forest Service’s proposed logging projects. The court concluded that the spotted owl, classified as a sensitive species by USFS, would suffer a reduction in its established forest habitat. By demonstrating that habitat reduction could irreparably damage the spotted owl, Sierra Forest met the second requirement for a preliminary injunction.

Finally, the Ninth Circuit considered whether the balance of equities favored Sierra Forest and whether the public interest would be advanced by the issuance of a preliminary injunction. Specifically, the court evaluated the USFS’s interest in its choice of funding methods-not the agency’s goal of fire prevention itself-against California’s interest in forest preservation. Given the “special solitude” afforded California in its efforts to protect in its natural resources,[13] as well as USFS’s failure to consider alternative sources of funding, the Ninth Circuit determined the balance of hardships favored granting a preliminary injunction. Additionally, the public interest favored issuance of a preliminary injunction because of the importance of enforcing laws designed to preserve the environment.[14]

Accordingly, the Ninth Circuit reversed the district court’s denial and remanded the case with instructions to immediately grant the preliminary injunction on the logging contracts to the extent that the proposed projects were inconsistent with the 2001 FEIS.

In addition to authoring the majority opinion, Judge Noonan also filed a concurring opinion. Judge Noonan first described the inherent bias in the USFS’s decision-making process, which was similar to unconstitutional statutory schemes where “a judge support[s] himself by his own judgments.”[15] Although necessity may allow a departure from traditional impartiality requirements, Judge Noonan concluded that USFS did not establish that the proceeds from timber contracts were necessary to fund fire prevention efforts.

Next, Judge Noonan rejected USFS’s “bold” claim at oral argument that approval of timber sales at the proposed sites did not implicate due process requirements or impartiality because no person’s life, liberty, or property was at stake.[16] In response, Judge Noonan explained that Sierra Forest’s standing to bring suit demonstrated that rights were at stake, and emphasized that aesthetic and environmental well-being are elements of liberty enjoyed by citizens.[17] Judge Noonan further reasoned that although the forest plan itself does not create legal rights,[18] such rights “enter the picture” when USFS targets site-specific projects.[19]

Finally, returning to the potential for bias in USFS’s decision-making process, Judge Noonan criticized the lack of judicial review at the stage where USFS develops a forest plan. Judge Noonan asserted that the USFS’s process should not be insulated from judicial review for bias because the financial incentive of the Forest Service in implementing the forest plan is “as operative, as tangible, and as troublesome as it would be if instead of an impartial agency decision the agency was the paid accomplice of the loggers.”[20] Consequently, Judge Noonan would have set aside the implementation process and the resulting decisions as impermissibly tainted by procedural bias.[21]

^[1] The environmental advocacy groups were Sierra Nevada Forest Protection Campaign, Center for Biological Diversity, Natural Resources Defense Council, Sierra Club, and the Wilderness Society.

^[2] 42 U.S.C. §§ 4321-4370e (2006).

^[3] 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2006)(amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat. 476 (1974)).

^[4] 42 U.S.C. §§ 4321-4370e (2006).

^[5] Sierra Nevada Forest Prot. Campaign v. Rey, No. 2:05-cv-0205-MCE-GGH, 2007 WL 3034931 (E.D. Cal. Oct. 16, 2007).

^[6] See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003).

^[7] See id. at 1297-98.

^[8] Sierra Forest Legacy v. Rey, 526 F.3d 1228, 1231 (9th Cir. 2008). The Ninth Circuit noted there was a larger conflict between the parties’ interests: USFS “acknowledge[d] that its reason for selling the forest trees to commercial loggers is to raise funds to carry on its fire prevention duties,” while the environmental advocacy groups and the State of California sought to “preserve the larger trees and so to preserve the habitat that supports various species.” Id.

^[9] 40 C.F.R. § 1502.14(a) (2007).

^[10] Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 813-14 (9th Cir. 2005).

^[11] Sierra Forest Legacy, 526 F.3d at 1233.

^[12] Id.

^[13] See Massachusetts v. U.S. Envtl. Prot. Agency, 549 U.S. 497, 520 (2007).

^[14] See Amoco Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).

^[15] Sierra Forest Legacy, 526 F.3d at 1235 (Noonan, J., concurring).

^[16] Id.

^[17] Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

^[18] See 36 C.F.R. § 219.3(b) (2007).

^[19] Sierra Forest Legacy, 526 F.3d at 1236 (Noonan, J., concurring).

^[20] Id.

^[21] Id.

North Idaho Community Action Network (NICAN) challenged a proposed highway construction project on U.S. Highway 95 in northern Idaho, alleging the defendant agencies[1] (collectively USDOT) violated the National Environmental Policy Act (NEPA)[2] and the Department of Transportation Act (DTA).[3] The United States District Court for the District of Idaho granted summary judgment in favor of defendants, and NICAN appealed. The Ninth Circuit affirmed as to the NEPA claims, holding that USDOT: 1) fulfilled its obligations under NEPA’s alternatives provision, 2) comported with NEPA by taking a hard look at dredging impacts, 3) did not violate NEPA by failing to consider a tunnel alternative, 4) sufficiently considered impacts to historical properties, and 5) did not violate NEPA by failing to issue a supplemental environmental impact statement. The Ninth Circuit reversed as to one of the two DTA claims, holding that USDOT violated the statute by issuing a record of decision prior to evaluating impacts of all project phases on historical properties, and affirmed as to the other, holding that formal evaluation of historical properties was not required for project modifications.

USDOT proposed a four-phase construction project (the Project) to improve U.S. Highway 95 in and around Sandpoint, Idaho. The first, second, and fourth phases involved widening the highway to four lanes; the third phase involved realigning a two-mile stretch of the highway to bypass downtown Sandpoint. USDOT approved a final environmental impact statement (EIS) in September 1999 and issued a record of decision for the Project in May 2000. USDOT released an environmental assessment (EA) in April 2005 that included design changes related to the third phase of the project (Sand Creek Byway). The 2005 EA concluded the changes would not have significant impacts beyond those already considered. Based on this conclusion, USDOT issued a finding of no significant impact (FONSI). USDOT then prepared an environmental reevaluation in August 2006 (Reevalution), setting forth additional changes to project design, including the dredging of Sand Creek, and assessing their possible environmental effects. The 2006 Reevaluation concluded there was no additional significant impact and that neither a supplemental environmental impact statement (SEIS) nor a further EA was required. NICAN challenged USDOT’s approval of the Project in district court in July 2005, after the 2005 EA and FONSI but before preparation of the 2006 Reevaluation. Reviewing the district court’s grant of summary judgment de novo[4] for arbitrary and capricious action by USDOT,[5] the Ninth Circuit began by addressing NICAN’s five NEPA claims.

First, NICAN argued that USDOT violated NEPA because the 2005 EA did not consider alternatives to the project design changes described in the 2005 EA. The Ninth Circuit disagreed, holding that USDOT fulfilled its obligations under NEPA when it considered and discussed two alternatives in the 2005 EA: the Project with the design changes proposed in the 2005 EA and the Project as described in the 1999 EIS. NEPA requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”[6] Although an agency’s obligation to consider alternatives applies whether an agency is preparing an EIS or an EA, “an agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS.”[7] An agency is required to “[r]igorously explore and objectively evaluate all reasonable alternatives”[8] for an EIS but is only required to include a brief discussion of reasonable alternatives for an environmental assessment.[9] Here, the Ninth Circuit held that because “the design changes to the Project proposed in the 2005 EA will not result in significant environmental effects that were not previously evaluated in the 1999 EIS,” USDOT’s brief discussion of only two alternatives was sufficient under NEPA.[10]

Second, NICAN argued that USDOT violated NEPA by failing to disclose and assess the impacts of dredging Sand Creek in the 2005 EA or in a supplemental EA. The Ninth Circuit disagreed, holding that USDOT did not act arbitrarily or capriciously in making the determinations and that it complied with NEPA in its evaluation of the proposed dredging. The factual record indicated there was not enough information about dredging and its possible impacts at the time USDOT prepared the 2005 EA. After more information became available, USDOT performed the 2006 Reevaluation and concluded that dredging would not have significant environmental impacts beyond those already identified. The court was satisfied that USDOT took the requisite “hard look” at the impacts of dredging in the 2006 Revaluation and that USDOT properly concluded that nothing in the Reevaluation necessitated a SEIS or supplemental EA.[11]

Third, NICAN argued that USDOT violated NEPA by failing to consider a tunnel alternative for the Project which was not identified until June 2006. The Ninth Circuit disagreed, holding that NEPA’s mandate to consider new information extends only to information or circumstances regarding environmental impacts that may not have been appreciated or considered when the EIS was prepared and does not extend to new alternatives absent “substantial changes in the proposed action relevant to environmental concerns.”[12] Here, the tunnel alternative and its environmental impacts were neither new information nor a new circumstance not considered when the 1999 EIS was prepared; nor was there a substantial change to the Project relevant to environmental concerns. Accordingly, the Ninth Circuit concluded USDOT did not violate NEPA by failing to consider the tunnel alternative.

Fourth, NICAN argued that USDOT violated NEPA by 1) taking a phased approach to the Project’s impact on historic properties and 2) failing to take a “hard look” at how the construction and operation of the project would affect the Burlington Northern Railroad Depot. The Ninth Circuit disagreed, holding USDOT’s broad overview in the 1999 EIS of the Project’s impacts on historic properties, coupled with the specific and detailed analysis of the impacts of the Sand Creek Byway, was more than sufficient to meet NEPA’s requirements regarding historic properties. The court explained that “NEPA requires federal agencies to consider the environmental impact of major federal actions” but imposes no independent requirement that an agency examine nonenvironmental impact of federal actions on historic properties.[13]

Fifth, NICAN argued that USDOT violated NEPA by failing to prepare an SEIS. The Ninth Circuit disagreed, holding that USDOT’s determination that the changes to the Project would not significantly impact the environment in a way not previously considered, and therefore an SEIS was not required, and was not arbitrary or capricious. An agency is required to prepare an SEIS only if changes, new information, or circumstances may result in significant environmental impacts “in a manner not previously evaluated and considered.”[14] An agency may prepare an environmental report or an EA to assist it in determining whether an SEIS is required.[15] Here, USDOT considered the changes to the Project and their impacts in both an EA and a Reevaluation, but determined those impacts were not sufficiently significant or adverse to require an SEIS. Specifically, construction of 1.1 acres of additional wetland area mitigated the 0.32 additional acres of wetlands affected by the modified Project. The court also noted the impacts of the Project were considered in the 1999 EIS, the 2005 EA, and the 2006 Reevaluation. Cumulatively, the court said, these documents showed that USDOT sufficiently considered environmental impacts.

The Ninth Circuit next considered the alleged violations of the DTA.[16] NICAN argued that USDOT violated section 4(f) the DTA 1) by failing to survey, identify, and evaluate historical properties for all four phases of the project, and 2) by determining that a DTA analysis was not required because the construction and operation of the project would not result in “use” of the historic property. Section 4(f) allows for a federal project “requiring the use of land of an historic site” to be approved only if “there is no prudent and feasible alternative to using that land and the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.”[17] The Ninth Circuit reversed on the first issue raised by NICAN, holding that an agency is required to complete the section 4(f) evaluation for the entire project prior to issuing its record of decision.

In considering the proper remedy for this violation, the Ninth Circuit determined that, while the agencies had technically violated the DTA by issuing a record of decision before completing the section 4(f) evaluation for the entire Project, “the scope of injunctive relief should be limited to precluding the [USDOT] from commencing construction of the remaining three phases of the Project until the section 4(f) evaluation has been fully completed.”[18] The Ninth Circuit reasoned that because all parties agreed the section 4(f) evaluation had been fully completed for the Sand Creek Byway phase of the project, it was unnecessary to enjoin that portion of the Project.

The Ninth Circuit affirmed on the second DTA issue, holding USDOT did not act arbitrarily or capriciously in determining that modifications to the Project discussed in the 2005 EA would not “use” the depot property within the meaning of section 4(f). The court explained that the modifications at issue were either improvements which would benefit the Depot and thus not permanently incorporate the Depot property into a transportation facility,[19] or temporary and minor improvements which properly constituted a temporary occupancy, and not a “use” under section 4(f).[20]

In summary, the Ninth Circuit affirmed the decision of the district court as to the NEPA claims, reversed and remanded the DTA claim regarding issuance of a record of decision with instructions to the district court to enter a limited injunction, and affirmed as to USDOT’s evaluation of historical properties for modifications under the DTA.

^[1] Defendants were the United States Department of Transportation, the Federal Highway Administration, the United States Fish & Wildlife Service, and the Idaho Transportation Department.

^[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

^[3] Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (2006).

^[4] Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007).

^[5] Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2006) (allowing a reviewing court to set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).

^[6] 42 U.S.C. § 4332(E) (2006).

^[7] N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp. (North Idaho), 545 F.3d 1147, 1153-54 (9th Cir. 2008)(citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005)).

^[8] See 40 C.F.R. § 1502.14(a) (2008).

^[9] See id. § 1508.9(b).

^[10] See Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1245-49 (9th Cir. 2005) (holding that agency complied with NEPA’s alternatives provision in preparing an environmental assessment where the agency considered only two alternatives).

^[11] See Price Road Neighborhood Ass’n v. U.S. Dep’t of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997)(holding that an agency is in full compliance with NEPA and is not required to conduct a supplemental EA if the agency takes the requisite “hard look” and determines that the new impacts will not be significant or significantly different from those already considered).

^[12] NEPA requires agencies to prepare supplements to either draft or final environmental impact statements if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” See 40 C.F.R. § 1502(c)(1)(ii) (2008).

^[13] North Idaho, 545 F.3d 1147, 1156 (9th Cir. 2008)(citing San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1097 (9th Cir. 2005)).

^[14] Westlands Water Dist. v. Dep’t of Interior, 376 F.3d 853, 873 (9th Cir. 2005).

^[15] See 23 C.F.R. §§ 771.119(a), 771.129,771.130(c) (2008).

^[16] Department of Transportation Act of 1966, 49 U.S.C. § 303(c) (2006).

^[17] Id.

^[18] North Idaho, 545 F.3d at 1160-61.

^[19] 23 C.F.R. § 771.135(p)(1) (2000)(repromulgated at 23 C.F.R. § 771.17 (2008)).

^[20] Id.

Nonprofit organizations Lands Council and the Wild West Institute (collectively Lands Council) sought a temporary restraining order and preliminary injunction against the United States Forest Service’s (USFS) Mission Brush Project (MBP), which allowed selective logging of 3829 acres of the Idaho Panhandle National Forest (IPNF).[1] Lands Council asserted that the MBP violated the Administrative Procedure Act (APA),[2] the National Forest Management Act (NFMA),[3] the National Environmental Policy Act (NEPA),[4] and Standard 10(b) of the IPNF Forest Plan.[5] The United States District Court for the District of Idaho denied Lands Council’s motion, ruling that Lands Council had not 1) demonstrated a likelihood of success on the merits and a possibility of irreparable injury, nor 2) shown that the balance of hardships tipped sharply in its favor. On appeal, a three-judge panel of the Ninth Circuit reached the opposite conclusion with regard to Land Council’s NFMA and NEPA claims and remanded for entry of a preliminary injunction.[6]

After reviewing the three-judge panel’s decision, an en banc Ninth Circuit panel concluded that the district court did not abuse its discretion, vacated the three-judge panel’s decision, and affirmed the district court’s denial of Lands Council’s preliminary injunction motion. The en banc panel first held that NFMA does not require USFS to always verify its methodology with on-the-ground analysis, overruling Ecology Center, Inc. v. Austin.[7] Instead, USFS must simply support conclusions with studies the agency, in its expertise, deems reliable. The court also overruled the suggestion from Idaho Sporting Congress v. Thomas[8] that habitat could not be used as a proxy for species viability under NFMA, holding that USFS can use habitat as a proxy to establish a species’ viability when the disturbance does not reduce suitable habitat in a way that threatens that species’ viability. Furthermore, the Ninth Circuit held that USFS satisfied NEPA by conducting a “full and fair discussion” of environmental impacts of the MBP.[9] Finally, the court concluded that Lands Council failed to show that the balance of hardships tipped sharply in its favor.

In 2002, USFS began forest management planning for the Mission and Brush Creek areas of the IPNF, home to old growth trees, as well as a variety of animal and plant species and habitats. Fire suppression, logging, and disease changed the historic composition of the forest from relatively open stands of ponderosa pine and mature Douglas fir stands to the current composition of shade-tolerant younger Douglas firs stands and other mid-to-late successional species that crowd the forest. The court concluded that “[t]he increased density of trees has proven deleterious to the old growth trees” and threatened the area’s ecology.[10] Thus, USFS sought to restore the forest to more historic compositions of open ponderosa pine and Douglas fir stands. Additionally, USFS proposed to restore forest health and wildlife habitat, improve water quality and aquatic habitat, and provide for recreation activities.[11]

To accomplish these varied objectives, USFS proposed silvicultural treatments,[12] fuels treatments, and ecosystem burns on portions of the IPNF. USFS planned to perform treatments within 277 acres of old growth stands without harvesting old growth trees and expected the MBP to generate 23.5 million board feet of timber to be sold pursuant to three timber sale contracts.[13]

After publishing a draft environmental impact statement (EIS) and receiving comments, USFS released a FEIS and record of decision (ROD) in June 2004. Lands Council appealed the ROD, and USFS upheld the MBP. However, because of a Ninth Circuit decision addressing a different forest management project in the IPNF,[14] USFS ordered the preparation of a supplemental EIS. After a draft and public comment, USFS issued the supplemental final environmental impact statement (SFEIS) and ROD in April 2006. Lands Council filed an administrative appeal again, and USFS again upheld the MBP.

In October 2006, Lands Council filed suit in district court, moving for a preliminary injunction. After the district court denied its motion, Lands Council timely appealed to the Ninth Circuit, arguing that 1) under NFMA, USFS failed to demonstrate the reliability of the scientific methodology underlying its analysis of the MBP’s effect on wildlife and failed to comply with Standard 10(b) of the IPNF Forest Plan’s requirement to maintain ten percent old growth throughout the forest, and 2) under NEPA, USFS did not adequately address uncertainty regarding its proposed treatment as a strategy to maintain species viability. Initially, a three-judge panel reversed the district court’s decision and remanded for entry of a preliminary injunction.[15] The injunction prohibited USFS from 1) logging fourteen acres of old growth trees in the Haller Down Sale, and 2) taking action in the area of the Mission Fly By Sale.[16] However, the Ninth Circuit subsequently convened en banc to rehear the case and “clarify some of [its] environmental jurisprudence” regarding review of USFS action.[17]

The en banc panel reviewed the district court’s denial of Lands Council’s motion for abuse of discretion.[18] Using this deferential standard, the Ninth Circuit evaluated whether Lands Council demonstrated either 1) “a likelihood of success on the merits and the possibility of irreparable injury,” or 2) “that serious questions going to the merits were raised and the balance of hardships tips sharply in [Lands Council's] favor.”[19] To determine whether Lands Council was likely to prevail on the merits of its NFMA and NEPA claims, the Ninth Circuit applied the APA’s “arbitrary and capricious” standard.[20] Thus, the abuse of discretion review for the preliminary injunction incorporated the “arbitrary and capricious” standard.

The Ninth Circuit characterized Lands Council’s appeal as asking the court “to act as a panel of scientists” in reviewing USFS action.[21] The court admitted that it may have entertained such a broad standard of review in previous NFMA cases; however, the en banc panel sought to correct its jurisprudential inconsistencies by first discussing the language and purpose of NFMA and the court’s misconstruction of NFMA in an earlier case, Ecology Center, Inc. v. Austin,[22] before evaluating the Lands Council’s claims.

NFMA contains procedural and substantive requirements to guide USFS in managing the National Forest System. Procedurally, NFMA requires USFS to develop a forest plan for each unit of national forest.[23] Once a plan is developed, each subsequent agency action, including site-specific plans, must be consistent with the governing plan and comply with NFMA.[24] NFMA substantively requires USFS to develop guidelines to provide for “diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.”[25] NFMA also requires consistency between the MBP and the IPNF Forest Plan, which requires USFS to manage the habitat of designated “sensitive” species, such as the flammulated owl, in a way that prevents further declines in population.[26] In addition to wildlife viability considerations, the Ninth Circuit stressed USFS must provide for multiple use[27] and “balance competing demands in managing National Forest System lands.”[28]

Before addressing Lands Council’s appeal, the Ninth Circuit overruled Ecology Center, reasoning that it had misconstrued the requirements of NFMA and disregarded well-established law governing the court’s review of agency decision making. In Ecology Center, the Ninth Circuit required USFS to “conduct on-the-ground analysis to verify its soil quality analysis and to establish the reliability of its hypothesis that treating old growth forest is beneficial to dependent species.”[29] First, the Ninth Circuit noted that Lands Council v. Powell (Lands Council I),[30] which required on-site spot verification of spreadsheet modeling, was “limited to the circumstances of that case;”[31] thus, when Ecology Center, relying on Lands Council I, imposed a categorical requirement of on-the-ground analysis, it established an overreaching rule. Next, the Ninth Circuit decided that NFMA, the IPNF Forest Plan, and relevant regulations, contrary to the court’s holding in Ecology Center, did not require that site-specific plans contain on-site analysis in consideration of wildlife viability. Instead, USFS can use any methodology or evidence to consider wildlife viability that it deems appropriate. Finally, the Ninth Circuit described Ecology Center as an example of the court’s failure to grant proper deference to USFS under the APA’s arbitrary and capricious standard of review. The court reasoned that it had no “proper role” in assessing the reliability or significance of USFS’s project analysis,[32] especially with respect to its predictions[33] or decisions involving a “high level of technical expertise.”[34] In overruling Ecology Center, the court held that under its new approach, “[USFS] must support its conclusions that a project meets the requirements of the NFMA and relevant Forest Plan with studies that the agency, in its expertise, deems reliable.”[35]

After overruling Ecology Center, the Ninth Circuit addressed Lands Council’s NFMA claim under the arbitrary and capricious standard. Lands Council argued that USFS violated NFMA by failing to establish the reliability of the data underlying its analysis of the MBP’s effect on wildlife, specifically the MBP’s effect on the sensitive flammulated owl and its habitat. USFS had conducted three studies documenting that flammulated owls prefer old growth habitat, as well as a study suggesting that flammulated owls live in old growth habitat even after it has been treated. Additionally, USFS conducted one on-the-ground survey of flammulated owls in an adjacent, treated forest plot and received one flammulated owl response as recent as 2006. Finally, USFS used a habitat suitability model, relying on vegetation characteristics, site visits, and aerial photographs to predict the treatment’s effect on flammulated owl habitat. On this record, USFS concluded that the MBP 1) would not decrease suitable habitat in the short-term, even if harvesting resulted in short-term negative effects, 2) would promote the viability of suitable habitat for the flammulated owl in the long-term, and 3) would not cause a loss of species viability or increase the likelihood of listing under the Endangered Species Act (ESA).[36]

Based on the USFS studies and the agency’s reasonable assumptions, the Ninth Circuit concluded that USFS did not act arbitrarily and capriciously in determining that the MBP satisfied NFMA and the IPNF Forest Plan regarding species diversity. For example, although the court described USFS’s survey for the flammulated owl at a nearby forest plot as “sparse” and “approaching the limits of [the court's] deference,”[37] the court reiterated that on-the-ground analysis was not required, and concluded, nonetheless, that there was sufficient evidence to defer to the USFS. Additionally, the court emphasized that “neither NFMA nor the IPNF Forest Plan require [USFS] to improve a species habitat to prove that it is maintaining wildlife viability.”[38] The court accepted USFS’s analysis of suitable habitat as a proxy for the viability of the flammulated owl, reasoning that Lands Council’s claims echoed arguments made in Inland Empire Public Lands Council v. USFS (Inland Empire).[39] In Inland Empire the Ninth Circuit approved USFS’s “habitat viability analyses,” which measured suitable habitat as a proxy to estimate a species’ population.[40] In this case, the Ninth Circuit noted that USFS similarly documented the quality and quantity of habitat necessary for the flammulated owl, as well as the habitat currently suitable and the estimated habitat suitable after the MBP.

The Ninth Circuit also discussed the effect, if any, a habitat disturbance, such as a timber harvest, had on its review of USFS under the “arbitrary and capricious” standard. The court overruled an earlier case, Idaho Sporting Congress v. Thomas,[41] to the extent it stood for the proposition that habitat could not be used as a proxy approach in the event of an “appreciable habitat disturbance.”[42] The Ninth Circuit reasoned that habitat disturbances do not inevitably indicate that a species’ viability will be threatened, and thus do not preclude USFS from using the habitat model as a population proxy when a disturbance does not reduce habitat to a point that threatens a species’ viability. However, USFS’s use of habitat as a proxy may be limited when the record 1) fails to establish a clear relationship between the habitat and the species at issue,[43] 2) fails to describe the types and amounts of habitat necessary to sustain a species’ viability,[44] or 3) suggests that the agency used outdated or inaccurate information for its habitat calculations.[45] In the present case, the Ninth Circuit determined that, based on USFS’s studies, surveys, and reasonable assumptions, the agency was not arbitrary and capricious in determining that the MBP will maintain a suitable habitat for a viable population of flammulated owls. Thus, the court concluded that the district court did not abuse its discretion in deciding that Lands Council’s NFMA claim was unlikely to succeed on the merits.

Next, the Ninth Circuit addressed Lands Council’s claim that USFS was currently out of compliance with the IPNF Forest Plan’s requirement to maintain at least ten percent of old growth trees throughout the forest. USFS relied on two independent monitoring tools, the National Forest Inventory and Analysis program and the IPNF stand-level old growth map, to calculate the percentage of old growth acreage in the IPNF. Each tool found that the IPNF contained approximately twelve percent of old growth. Lands Council presented its own report that concluded that seventy percent of 3000 acres that USFS claimed to be old growth did not meet USFS’s old growth standards, but USFS’s expert disputed the report’s methods, findings, and credibility. The Ninth Circuit reasoned that an “agency must have discretion to rely on the reasonable opinions of its own qualified experts,” when experts advance conflicting views.[46] Thus, the court concluded that USFS did not act arbitrarily and capriciously “in relying on its own data and discounting the alternative evidence offered’ by Lands Council.”[47]

Lands Council also argued that the MBP would violate the IPNF Forest Plan’s requirement to maintain at least ten percent of old growth forest. USFS planned to perform treatments within old growth stands without harvesting old growth trees. Although the court acknowledged that disturbances, other than harvesting, could cause decreases in the old growth percentage, the court held that the MBP does not violate the IPNF Forest Plan’s old growth percentage requirement.[48] Thus, the Ninth Circuit ruled that the district court did not abuse its discretion in concluding that Lands Council was not likely to succeed on the merits of its NFMA claim alleging noncompliance with the IPNF Forest Plan.

Prior to addressing Lands Council’s NEPA claim, the Ninth Circuit discussed the statutory language and purpose of NEPA, as well as its jurisprudence regarding “uncertainties.”[49] The court noted that NEPA and corresponding regulations require agencies undertaking major federal actions to provide “full and fair discussions of significant environmental impacts”[50] but lack any substantive requirement to affirmatively submit every uncertainty in an EIS. The Ninth Circuit acknowledged it had erred when it previously criticized USFS for an EIS’s failure to address a project’s uncertainties “in any meaningful way”[51] but reaffirmed USFS’s duty, under NEPA’s regulations[52] and case law,[53] to “acknowledge and respond to public comments that raise significant scientific uncertainties and reasonably support that such uncertainties exist.”[54] However, USFS does not have to anticipate questions or respond to uncertainties that are “not reasonably supported by any scientific authority.”[55]

The Ninth Circuit held that USFS satisfied NEPA by taking the requisite “hard look” at the environmental impacts of the MBP. Lands Council argued that USFS failed to fully discuss the scientific uncertainty surrounding its strategy for maintaining species viability, referencing two papers that USFS did not discuss. The court reasoned that neither source raised uncertainties about the USFS’s methodology. Rather, those papers supported the USFS’s proposed treatment of old growth habitat. Lands Council also argued that USFS failed to provide adequate evidence that the MBP will improve the habitat of old growth species and failed to adequately evaluate adverse impacts from logging. In response, the Ninth Circuit concluded that the SFEIS described how the MBP would improve tree vigor and resistance to insects and disease and reduce the risk of stand-replacing fires. Additionally, the court noted the USFS’s acknowledgement of potential short-term, negative impacts of treatment, as well as the agency’s position that the MBP would enhance species’ habitat in the long-term, based on the habitat suitability model. In sum, the court ruled that Lands Council is unlikely to succeed on the merits of its NEPA claim.

Having concluded that the district court did not abuse its discretion in finding Lands Council could not show a likelihood of success on the merits, the Ninth Circuit also agreed that the balance of hardships did not tip sharply in Lands Council’s favor, based on a consideration of those affected by an injunction and the public interest.[56] Although the court acknowledged that the balance of harms “usually favors the issuance of an injunction” if an environmental injury is likely,[57] the court declined to adopt a rule that “any potential environmental injury automatically merits an injunction, particularly where . . . the plaintiffs are not likely to succeed on the merits of their claims.”[58] The court balanced the threats to the environment with the economic hardships advanced by the intervenors, noting that even though environmental preservation is in the public’s interest, the MBP benefited the public interest by 1) decreasing the risk of catastrophic fire, insect infestation, and disease, and 2) aiding the struggling local economy and preventing job loss. Because these considerations countered the possible environmental injury alleged by Lands Council, the Ninth Circuit ruled that the district court did not clearly err in concluding that the balance of harms did not tip in Lands Council’s favor.

In summary, the en banc panel of the Ninth Circuit affirmed the district court’s denial of a preliminary injunction. First the court held that NFMA does not require USFS to always verify its methodology with on-the-ground analysis, overruling Ecology Center, Inc. v. Austin. Instead, USFS must simply support conclusions with studies the agency, in its expertise, deems reliable. The court also overruled the suggestion from Idaho Sporting Congress v. Thomas that a habitat could not be used as a proxy for species viability under NFMA; the court instead ruled that USFS can use habitat as a proxy to establish a species’ viability when the disturbance does not reduce suitable habitat in a way that threatens a species’ viability. Furthermore, the Ninth Circuit held that USFS did not fail to conduct a full and fair discussion of environmental impacts under NEPA. Finally, the court concluded that Lands Council failed to show that the balance of hardships tipped sharply in its favor. Based on these conclusions, the Ninth Circuit vacated a three-judge panel’s previous decision that granted Lands Council a preliminary injunction and affirmed the district court.

^[1] Boundary County, City of Bonners Ferry, City of Moyie Springs, Everhart Logging, Inc., and Regehr Logging, Inc. intervened on behalf of USFS.

^[2] 5 U.S.C §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

^[3] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2006) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93‑378, 88 Stat. 476 (1974)).

^[4] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2006).

^[5] U.S. Dep’t of Agric., U.S. Forest Serv., N. Region, Forest Plan: Idaho Panhandle National Forests (1987), available at http://www.fs.fed.us/ipnf/eco/manage/forestplan.

^[6] Lands Council v. McNair (Lands Council III), 494 F.3d 771 (9th Cir. 2008), rev’d en banc, 537 F.3d 981 (9th Cir. 2008).

^[7] 430 F.3d 1057 (9th Cir. 2005).

^[8] 137 F.3d 1146 (9th Cir. 1998).

^[9] Lands Council v. McNair (Lands Council IV), 537 F.3d 981, 1001 (9th Cir. 2008) (en banc).

^[10] Id. at 985.The court elaborated that 1) old growth trees need relatively open conditions to sustain growth rates, 2) increased density has caused a decline of forest health because of increased competition for sun and nutrients combined with heightened risk of insects and disease infestations, 3) the resulting “dense, dry forests are at risk for large, stand-replacing fires, due to the build-up of fuels,” and 4) wildlife species that thrive in open forest conditions have suffered. Id.

^[11] U.S. Dep’t of Agric., U.S. Forest Serv., Mission Brush Supplemental Final Environmental Impact Statement (2006), available at http://www.fs.fed.us/ ipnf/eco/manage/
nepa/bfnepa/mission_brush/mbsfeis.pdf.

^[12] The silvicultural treatments consisted of commercial thinning, both even-aged and uneven-aged regeneration cuts, and sanitation salvage harvesting.

^[13] The three timber contracts were 1) the Brushy Mission Sale, 2) the Haller Down Sale, and 3) the Mission Fly By Sale.

^[14] Lands Council v. Powell (Lands Council I), 379 F.3d 738 (9th Cir. 2004),amended by 395 F.3d 1019 (9th Cir. 2005).

^[15] Lands Council III, 494 F.3d 771 (9th Cir. 2007), rev’d en banc, 537 F.3d 981 (9th Cir. 2008).

^[16] Id.

^[17] Lands Council IV, 537 F.3d 981, 984 (9th Cir. 2008) (en banc).

^[18] The Ninth Circuit noted that a district court abuses its discretion if it “base[s] its decision on an erroneous legal standard or clearly erroneous findings of fact.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1156 (9th Cir. 2006).

^[19] Lands Council v. Martin (Lands Council II), 479 F.3d 636, 639 (9th Cir. 2007)(quoting Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)).

^[20] Lands Council IV, 537 F.3d at 987(citing 5 U.S.C. § 706(2)(A) (2006)).

^[21] Id. at 988.

^[22] 430 F.3d 1057 (9th Cir. 2005).

^[23] National Forest Management Act of 1976, 16 U.S.C. § 1604(a) (2006).

^[24] Id. § 1604(i); see Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 962 (9th Cir. 2002) (explaining that USFS management activities must comply with the forest plan, which in turn must comply with the Forest Act).

^[25] 16 U.S.C. § 1604(g)(3)(B) (2006).

^[26] U.S. Dep’t of Agric., supra note 67, at II-28 .

^[27] Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531 (2006).

^[28] Lands Council IV, 537 F.3d 981, 990 (9th Cir. 2008) (en banc)(citing 16 U.S.C. § 1604(e)(1), which lists “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness” as multiple use considerations).

^[29] Id. at 991(citing Ecology Ctr. v. Austin, 430 F.3d 1057, 1065, 1070-71 (9th Cir. 2005)) (internal quotations omitted).

^[30] 379 F.3d 738 (9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir. 2005).

^[31] Lands Council IV, 537 F.3d at 991. In Lands Council I, USFS had relied on samples from other parts of the forest and aerial photographs, but had not undertaken on-site inspection or verification. Lands Council I, 379 F.3d 738 (9th Cir. 2004), amended by 395 F.3d 1019, 1034-35 (9th Cir. 2005).

^[32] Lands Council IV, 537 F.3d at 993.

^[33] Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003).

^[34] Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003)(quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377-78 (1989)).

^[35] Lands Council IV, 537 F.3d at 994.

^[36] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).

^[37] Lands Council IV, 537 F.3d at 995.

^[38] Id.

^[39] 88 F.3d 754 (9th Cir. 1996). In Inland Empire, plaintiffs challenged USFS’s analysis of a timber sale’s impact on several sensitive species. Id. at 757.

^[40] Id. at 763.Inland Empire also characterized the USFS’s assumption that maintaining threshold proportions of required habitats would ensure a viable population as “eminently reasonable.” Id. at 760-61.

^[41] Idaho Sporting Congress, 137 F.3d 1146 (9th Cir. 1998).

^[42] Id. at 1154.

^[43] Or. Natural Res. Council Fund v. Goodman, 505 F.3d 884, 891 (9th Cir. 2007).

^[44] Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1250 (9th Cir. 2005).

^[45] Idaho Sporting Cong., Inc. v. Riltenhouse, 305 F.3d 957, 971-72 (9th Cir. 2002).

^[46] Lands Council IV, 537 F.3d 981, 1000 (9th Cir. 2008)(quoting Marsh v. Or. Natural Res. Ctr., 490 U.S. 360, 378 (1989)).

^[47] Id.(quoting Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1302 (9th Cir. 2003)).

^[48] This echoed the Ninth Circuit’s conclusion in Lands Council I, 379 F.3d 738 (9th Cir. 2004), amended by 395 F.3d 1019, 1036 (9th Cir. 2005).

^[49] Lands Council IV, 537 F.3d at 1001.

^[50] 40 C.F.R. § 1502.1 (2007).

^[51] Seattle Audobon Soc’y v. Espy, 998 F.2d 699, 704 (9th Cir. 1993); Ecology Center, 430 F.3d 1057, 1065 (9th Cir. 2005).

^[52] See 40 C.F.R. §§ 1500.1(b),1502.9(a),1503.4(a), 1502.22 (2007).

^[53] Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981) (holding that “[s]o long as the environmental impact statement identifies areas of uncertainty, the agency has fulfilled its mission under NEPA”).

^[54] Lands Council IV, 537 F.3d at 1001.

^[55] Id. at 1002.

^[56] The Ninth Circuit concluded the district court applied the correct preliminary injunction standard, requiring 1) a “likelihood of success on the merits and the possibility of irreparable injury,” or 2) “that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor.” Lands Council IV, 537 F.3d at 1003(quoting Lands Council II, 479 F.3d 636, 639 (9th Cir. 2007)) (internal citations omitted).

^[57] Amoco Prod. Co. v. Vill. Of Gambell, 480 U.S. 531, 545 (1987).

^[58] Lands Council IV, 537 F.3d at 1005.