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.

Three environmental advocacy groups appealed a decision of the district court granting summary judgment for defendants United States Forest Service and the Forest Supervisor of Umatilla National Forest (collectively Forest Service).[1] The Ninth Circuit reversed the district court on one ground, holding the USFS violated the National Environmental Policy Act (NEPA)[2] by failing to adequately discuss the effects of proposed salvage logging on two roadless areas, but affirmed on two others, holding that the Forest Service complied with the National Forest Management Act (NFMA)[3] in its soil analysis and interpretation of the term “live trees.” The Ninth Circuit remanded the case to the district court.

After an August 2005 forest fire burned approximately 51,000 acres in southeastern Washington, including 28,000 acres in the Umatilla National Forest, the Forest Service began preparations for the School Fire Salvage Recovery Project to harvest dead trees located within the national forest. The Forest Service released its final environmental impact statement (EIS) and record of decision (ROD), choosing to allow salvage logging on 9423 acres. The proposed logging was to be performed on portions of two uninventoried roadless areas, the West Tucannon roadless area (4284 acres) and the Upper Cummins Creek roadless area (966 acres).[4] These two roadless areas are adjacent to the Willow Springs inventoried roadless area, which contains more than 12,000 acres. While a lone road separates West Tucannon and Willow Springs, Upper Cummings Creek and Willow Springs are not separated by a road. The three areas together comprise a contiguous roadless area of more than 13,000 acres.

The Forest Service sought to commence logging immediately to prevent loss of a potential $1,547,000 in timber sales, and the plaintiffs filed suit in the United States District Court for the Eastern District of Washington alleging violations of NEPA and NFMA. Plaintiffs had two principal disputes. The first concerned the Forest Service’s interpretation of the term “live trees” as used in the Umatilla National Forest Land and Resource Management Plan (LRMP). The LRMP prohibited the harvesting of old growth “live trees,” but neither NFMA nor the LRMP defined the term. Plaintiffs contended that dying trees are still alive and logging them would violate the LRMP’s prohibition on harvesting old growth live trees. In an earlier appeal, a panel of the Ninth Circuit agreed and reversed the district court’s decision.[5] Plaintiffs also contended the discussion of the roadless areas in the EIS was inadequate to meet NEPA requirements. The Ninth Circuit affirmed the district court’s decision on this ground, noting the demanding standard of review on appeal from the denial of a preliminary injunction. On remand, the district court issued an injunction prohibiting the cutting of any live tree twenty-one inches or more in diameter at breast height.

As the salvage operation continued, the Forest Service started a new notice and comment process to supplement the EIS with a new definition of “live trees.” The June 11, 2007 supplemental EIS (SEIS) amended the prohibition against harvesting old growth timber by adding a new definition of “live trees” that excluded dying trees, using a predictive method known as the “Scott Mortality Guidelines.”[6] The Forest Service limited the amendment’s geographic and temporal scope by applying it only to the School Fire Salvage Recovery Project. Three months after the issuance of the SEIS, the district court granted summary judgment to the defendants on all claims. Plaintiffs appealed, and the district court issued an injunction pending appeal. The Ninth Circuit reviewed de novo the district court’s grant of summary judgment. On appeal, plaintiffs challenged three aspects of the recovery project: the new definition of live trees, the soil analysis in the EIS, and the discussion of the roadless areas in the EIS.

The Ninth Circuit began its analysis by addressing the amended definition of “live trees” provided by the SEIS. First, plaintiffs alleged the amended definition was arbitrary and capricious because it represented a change in policy that was not adequately explained. The Ninth Circuit rejected this contention, concluding that the amendment was not among the “rare instances” in which the agency’s action is arbitrary and capricious for failure to provide an adequate explanation.[7] The court relied on Morales-Izquierdo v. Gonzales,[8] which held that an unexplained inconsistency is grounds for finding that an interpretation is an arbitrary and capricious change in policy-but only in the rare instances when an agency provides no explanation at all or when the explanation is so unclear or contradictory that there is doubt as to the reason for the change in direction.[9] Here, the Forest Service explained that the policy change was necessary because the plain text definition of “live trees” frustrated its ability to achieve the purpose of the recovery project. Plaintiffs’ disagreement with the merits of the Forest Service’s explanation was insufficient to trigger the “rare instances” exception to the rule stated in Morales-Izquierdo. The Ninth Circuit also declined to consider whether the Forest Service decision was properly supported by science, noting that an agency has discretion to rely on the reasonable opinions of its own qualified experts even if a court finds contrary views more persuasive.[10] This principle also applies to challenges to a specific methodology.[11] The court upheld the Forest Service’s reliance on the newly developed Scott Mortality Guidelines (which were derived from field testing and practical experience but had not yet been published), finding no legal requirement that a methodology be peer reviewed or published in a credible source.[12]

Second, plaintiffs alleged that the Forest Service was bound to use the common meaning of the term “live trees.” The Ninth Circuit disagreed, holding that no statute or precedent suggests that a previously undefined technical term in a forest plan cannot be subsequently clarified. The court noted that “live trees” is not a statutory term and thus is not subject to a Chevron[13] analysis regarding its proper interpretation.

Third, plaintiffs alleged that the Forest Service erred procedurally by concluding that the amendment was not “significant” because it was limited in scope. “Significant” amendments require a lengthy and detailed amendment process; otherwise, a simple notice and comment process is sufficient.[14] The Ninth Circuit rejected plaintiffs’ contention that the amendment was “significant” and thus should have been subjected to greater scrutiny, citing the discretion given to the Forest Service in determining such classifications.[15] Similarly, the Ninth Circuit rejected the argument that the Forest Service arbitrarily enacted a site-specific amendment, applicable to this salvage project, rather than a general amendment that would have applied to the entire forest. The court reiterated the deference given to the Forest Service when it uses its expertise to devise a plan specially suited to a site’s specific characteristics.[16] In this case, “the Forest Service’s decision to limit the scope of the amendment was informed by site-specific characteristics and Forest Service expertise.”[17] Here, the Forest Service chose a definition of “live trees” that assesses the effects of a wildfire on the species of trees found in the affected area. Evidence in the record suggested that the chosen designation may not be appropriate to assess trees affected in other ways, such as prescribed burning, flooding, disease, and insect infestation. As such, the Forest Service “articulated a rational connection between the facts found and the choice made” and did not act arbitrarily.[18]

The Ninth Circuit next analyzed plaintiffs’ challenges to three aspects of the soil analysis in the EIS. First, plaintiffs alleged that the Forest Service did not conduct an on-the-ground soil analysis as required by precedent.[19] The Ninth Circuit disagreed, noting the fifteen-page soil analysis in the EIS that included several references to field verification and observation. On the ROD, plaintiffs could not show that the Forest Service did not actually perform the required on-the-ground soil analysis. Second, plaintiffs alleged that the Forest Service improperly interpreted the term “severe burning” in a provision of the LRMP that required the Forest Service to plan and conduct land management activities so that reductions caused by “severe burning” are minimized. The EIS interprets this provision and others in the Forest Service Handbook as applying only to prescribed burns, not forest fires; the soil analysis therefore did not account for the burning effects of the forest fire. The Ninth Circuit held that the Forest Service’s interpretation was not plainly erroneous or otherwise inconsistent with the language of the LRMP.[20] It is plausible to read the provision as being limited to prescribed burns and not inclusive of naturally occurring effects. Third, the plaintiffs alleged that the Forest Service impermissibly used the “long-term average annual prediction” method rather than the “return period analysis for soil erosion” method. The Ninth Circuit again relied on Inland Empire Public Lands Council v. Schultz,[21] declining to second-guess the methodological choices made by the agency in its area of expertise.[22]

The Ninth Circuit concluded with an examination of plaintiffs’ challenges to the roadless area analysis in the EIS. Plaintiffs alleged that the EIS violated NEPA because it did not contain an adequate discussion of the effects of the proposed logging on the roadless character of two substantial roadless areas. Specifically, the plaintiffs alleged the EIS did not comply with the requirement in Smith v. USFS[23] that roadless areas be discussed in the context of their potential for wilderness designation.[24] In Smith, the court held that “the possibility of future wilderness classification triggers, at the very least, an obligation on the part of the agency to disclose the fact that development will affect a 5,000 acre roadless area.”[25] Specifically, the size of an uninventoried roadless area must be considered in conjunction with the size of any contiguous inventoried roadless area. Here, the Upper Cummings Creek roadless area contains about 1000 acres of uninventoried land and is contiguous to the Willow Springs inventoried roadless area of approximately 12,000 acres. Applying Smith, the Ninth Circuit held that the Upper Cummings Creek-Willow Springs roadless areas are a single “roadless expanse” that, when analyzed together, contain more than 5000 acres.

The Wilderness Act[26] does not limit the potential for wilderness designation to roadless areas 5000 acres or larger, however. An area is suitable for wilderness designation if it contains at least 5000 acres or if it is of sufficient size “as to make practicable its preservation and use in an unimpaired condition.”[27] The West Tucannon roadless area, totaling 4284 acres, falls within this second category. The court thus clarified the rule enunciated in Smith, holding that the Forest Service is required to discuss the effects of proposed logging on roadless areas that are either greater than 5000 acres or of a sufficient size to make the area practicable for preservation under the Wilderness Act. Both roadless areas at issue in this case thus required a discussion of their potential for wilderness designation. The discussion of the roadless areas in the EIS did not meet this requirement because it failed to disclose that Upper Cummings Creek and Willow Springs create a “roadless expanse” larger than 5000 acres or that West Tucannon is of “sufficient size” to trigger the wilderness designation. Thus, the Ninth Circuit reversed the district court’s holding that the discussion in the EIS of the effects of the proposed logging in the roadless areas complied with NEPA requirements.

In conclusion, the Ninth Circuit held that the Forest Service violated NEPA because the agency did not adequately discuss the effects of proposed logging on two roadless areas but that the Forest Service’s soil analysis and interpretation of “live trees” complied with NFMA.

^[1] Plaintiffs were The Lands Council, Oregon Wild, Hells Canyon Preservation Council, and Sierra Club. Defendants were the United States Forest Service and the Forest Supervisor of the Umatilla National Forest. American Forest Resource Council, Boise Building Solutions Manufacturing, and Dodge Logging joined the defendants as intervenors.

^[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (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] See generally Nat’l Audubon Soc’y v. U.S. Forest Serv., 46 F.3d 1437, 1439-40 (9th Cir. 1993)(describing the history of roadless area designations).

^[5] See generally Lands Council v. Martin, 479 F.3d 636 (9th Cir. 2007) (as amended).

^[6] In the ROD, the Umatilla National Forest Supervisor explained that “[l]ive trees are defined as trees rated to have a high probability of surviving the effects of fire, and trees rated to have a moderate probability of survival where sampling indicates that at least 50 percent of their basal cambium is alive. Dead trees are defined as trees rated to have a low probability of surviving the effects of fire, and trees rated to have a moderate probability of survival where sampling indicates that more than 50 percent of their basal cambium is dead”, where survival mortality is determined using the Scott Mortality Guidelines. Lands Council v. Martin, 529 F.3d 1219, 1224 (9th Cir. 2008) (quoting the ROD).

^[7] Id. at 1225.

^[8] 486 F.3d 484 (9th Cir. 2007).

^[9] Id. at 493; see also Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).

^[10] See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989); see also Inland Empire Pub. Lands Council v. Schultz (Inland Empire), 992 F.2d 977, 981 (9th Cir. 1993) (“We are in no position to resolve this dispute because we would have to decide that the views of [the plaintiffs'] experts have more merit than those of the Forest Service’s experts.”)

^[11] Inland Empire, 992 F.2d at 981 (“We will not second-guess methodological choices made by an agency in its area of expertise.”).

^[12] Cf. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (holding that “at the frontiers of science . . . a reviewing court must generally be at its most deferential”).

^[13] See generally Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

^[14] 16 U.S.C. § 1604(f)(4) (2006);36 C.F.R. § 219.10(f) (2008).

^[15] Native Ecosystems Council v. Dombeck, 304 F.3d 886, 900 (9th Cir. 2002) (stating that the “regulations leave to the discretion of the Forest Service the question of whether any given amendment is significant”); see also Prairie Wood Prod. v. Glickman, 971 F. Supp. 457, 463 (D. Or. 1997) (listing four factors from the Forest Service Handbook used to determine if an amendment is significant).

^[16] Native Ecosystems Council, 304 F.3d at 900 (holding that Forest Service’s decision to analyze each amendment in a forest plan separately was reasonable).

^[17] Lands Council v. Martin, 529 F.3d 1219, 1228 (9th Cir. 2008).

^[18] Pac. Coast Fed’n of Fishermen’s Ass’n v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001).

^[19] See Lands Council v. Powell, 395 F.3d 1019, 1034-35 (9th Cir. 2005) (holding that Forest Service violated NFMA when it relied on a spreadsheet model for soil conditions); Ecology Ctr., Inc. v. Austin, 430 F.3d 1057, 1070-71 (9th Cir. 2005)(applying Powell).

^[20] See Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (holding that “judicial review of an agency’s interpretation of its own regulations is limited to ensuring that the agency’s interpretation is not plainly erroneous or inconsistent with the regulation”).

^[21] 992 F.2d 977 (9th Cir. 1993).

^[22] Id. at 981.

^[23] 33 F.3d 1072 (9th Cir. 1994).

^[24] Id. at 1078-79.

^[25] Id. at 1078.

^[26] 16 U.S.C. §§ 1131-1136 (2006).

^[27] Id. § 1131(c).

Conventional alfalfa growers Geertson Seed Farms and Trask Family Seeds, along with numerous consumer and environmental advocacy organizations (collectively Geertson),[1] brought suit in February 2006 against officials at the United States Department of Agriculture (USDA), the United States Environmental Protection Agency (EPA), and the USDA’s Animal and Plant Health Inspection Service (APHIS) (collectively Defendants), alleging violations of the National Environmental Policy Act of 1969 (NEPA)[2] and other federal statutes. In February 2007, the district court held that APHIS violated NEPA by deregulating genetically engineered alfalfa (Roundup Ready alfalfa) without first preparing an environmental impact statement (EIS) and issued a permanent injunction barring future planting of genetically engineered alfalfa until APHIS’s completion of an EIS.[3] The Ninth Circuit affirmed, holding that the district court correctly issued the permanent injunction and correctly decided not to conduct an evidentiary hearing prior to issuing an injunction.

Monsanto Company (Monsanto) is a large-scale manufacturer of chemical products, including herbicides and pesticides. Monsanto developed lines of Roundup Ready alfalfa, which are resistant to one of the company’s leading herbicides, Roundup. Monsanto licensed the technology to Forage Genetics as the exclusive developer of Roundup Ready alfalfa seed.

APHIS, a division of USDA, is authorized to regulate “the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests,” which are also known as “regulated articles.”[4] After APHIS initially classified Roundup Ready alfalfa as a regulated article, Monsanto petitioned APHIS, asking the agency to deregulate the Roundup Ready alfalfa. In response, APHIS published notice in the Federal Register, seeking public comment on the proposed deregulation. The notice explained that APHIS prepared an environmental assessment (EA) in accordance with NEPA that addressed the threat of genetic contamination of conventional alfalfa. Because of the presence of mandatory buffer zones around organic farming operations, the EA concluded it was “unlikely that Roundup Ready alfalfa would have a significant impact on organic farming.”[5]

Of the 663 public comments received in response to the notice, 520 opposed Monsanto’s petition and 137 supported the deregulation of Roundup Ready alfalfa. The alfalfa growers and seed producers who supported the petition argued there was a demand for weed-free alfalfa. Conversely, opponents of the petition expressed concern about inadvertent gene transmission and the possibility that markets might not accept contaminated alfalfa, which farmers could not guarantee to be free from genetic engineering. Opponents further advocated for APHIS to conduct an EIS to analyze the environmental effects of a range of alternatives. In June 2005, APHIS made a finding of no significant impact and unconditionally deregulated Roundup Ready alfalfa.[6]

Fearing that cross-pollination with Roundup Ready alfalfa would cause genetic contamination of conventional alfalfa, Geertson filed suit in federal district court, seeking to enjoin all future planting and harvesting of Roundup Ready alfalfa until APHIS completed an EIS. After conducting a hearing on the parties’ cross-motions for summary judgment, the district court held APHIS “failed to take the required ‘hard look’” demanded by NEPA regarding the extent to which the unconditional deregulation of Roundup Ready alfalfa would lead to genetic contamination of conventional alfalfa.[7] Monsanto and Forage Genetics joined with Defendants at the remedies phase and requested that planting of Roundup Ready alfalfa go forward subject to certain mitigating conditions.

At the remedies stage, the district court held two hearings on the scope of injunctive relief and considered “voluminous evidentiary submissions from both sides.”[8] Geertson sought to enjoin all future planting and harvesting of Roundup Ready alfalfa until the completion of an EIS. Defendants requested that future planting continue, subject to certain conditions proposed by APHIS, such as required isolation from other crops and harvesting methods that minimize gene flow to nongenetically engineered alfalfa seeds. Monsanto and Forage Genetics also requested-and were denied-an evidentiary hearing before the issuance of a permanent injunction. In May 2007, the district court permanently enjoined the planting of all Roundup Ready alfalfa after March 30, 2007, pending APHIS’s completion of an EIS.

On appeal to the Ninth Circuit, Defendants did not challenge the district court’s finding of a NEPA violation. Defendants disputed only the scope of the permanent injunction and whether the district court should have held an evidentiary hearing before issuing the injunction. The Ninth Circuit reviewed the district court’s injunction for abuse of discretion.[9] To obtain a permanent injunction, a plaintiff must show 1) irreparable injury, 2) inadequacy of remedies available at law to compensate for the plaintiff’s injury, 3) the balance of hardships favors issuance of an equitable remedy, and 4) a permanent injunction will serve the public interest.[10]

In challenging the scope of the permanent injunction, Defendants argued the district court erred in its analysis by not applying the four-factor balancing test required by the United States Supreme Court.[11] Defendants argued that the scope of the permanent injunction was overly broad because the district court improperly presumed irreparable injury and did not consider APHIS’s proposed mitigation measures when examining the potential for harm.

The Ninth Circuit rejected Defendants’ argument and held the district court properly applied the traditional balancing test. Although the balance of harms often favors permanent injunctive relief in environmental injury cases,[12] the Ninth Circuit recognized that courts cannot categorically grant or deny injunctive relief in lieu of applying the four-factor test.[13] However, the Ninth Circuit concluded that the district court correctly applied the four-factor test.

First, with regard to irreparable harm requirement, the Ninth Circuit determined the district court did not presume the likelihood of harm based on APHIS’s failure to prepare an EIS. The district court found that Roundup Ready alfalfa already led to genetic contamination of conventional alfalfa crops, despite Monsanto and Forage Genetics’ use of mitigation measures similar to those originally proposed by APHIS. Further, the district court found farmers could not replant alfalfa for two to four years after the removal of contaminated plants. Therefore, the Ninth Circuit held the district court properly concluded that Geerston established the presence of an irreparable injury.

Second, the Ninth Circuit considered the balance of hardships between Geerston and Defendants. The district court recognized the economic harm to Defendants, but noted that Roundup Ready alfalfa accounted for a relatively small percentage of Monsanto’s and Forage Genetics’ total revenues, and that unsold seed could be stored for future planting. By enjoining only future planting and allowing any planted Roundup Ready alfalfa to remain, the Ninth Circuit concluded the district court crafted an injunctive remedy that addressed hardships on both sides. Further, the Ninth Circuit held the district court did not disregard Monsanto and Forage Genetics’ economic losses, but instead concluded that the injury to conventional alfalfa growers and consumers exceeded the harm to Defendants.

Third, in considering the public interest factor, the Ninth Circuit affirmed the district court’s determination that the public interest would benefit from a ban on future planting of Roundup Ready alfalfa until further study of the plant’s impacts. The court reasoned that failure to enjoin further use of the seed could potentially eliminate the availability of conventional and organic alfalfa.

The Ninth Circuit turned next to Defendants’ argument that the district court should have deferred to APHIS’s proposed mitigation measures and permitted future planting of Roundup Ready alfalfa under the agency’s recommended conditions. In rejecting this argument, the Ninth Circuit reasoned that such measures would perpetuate the very system found by the district court to have already caused environmental harm. Accordingly, the Ninth Circuit affirmed the scope of the permanent injunction and held that the district court properly applied the four-factor test for permanent injunctions.

Finally, the Ninth Circuit considered whether the district court erred in denying Monsanto and Forage Genetics’[14] request for an evidentiary hearing. The Ninth Circuit held the district court did not err in declining to hold a further evidentiary hearing because the injunction involved only interim measures. Further, the district court considered other extensive evidence during the remedy phase of the proceedings.

In affirming the lower court’s decision not to hold an evidentiary hearing, the Ninth Circuit relied on the case of Idaho Watersheds Project v. Hahn (Idaho Watersheds).[15] According to the Ninth Circuit, a permanent injunction crafted to ensure compliance with NEPA has a more limited purpose and duration than a typical permanent injunction.[16] Like the permanent injunction in Idaho Watersheds, which the court designed to ensure NEPA compliance, the Ninth Circuit noted that the permanent injunction in the instant case involved interim measures that “would be in place only until the EIS was completed, at which point the parties would have ‘extensive input’ into the determination of which measures would be adopted permanently.”[17] Moreover, the Ninth Circuit recognized that upon APHIS’s completion of the EIS, all parties would have adequate opportunity to address or challenge the permanence of any actions and comment on any new decision regarding deregulation. Finally, relying on Idaho Watersheds, the Ninth Circuit concluded the district court properly denied the request for an evidentiary hearing because the hearing would result in an inquiry similar to the NEPA analysis ordered by the court. Accordingly, the Ninth Circuit affirmed the permanent injunction as a proper application of the traditional balance of harms analysis, holding the district court did not err in declining to hold an evidentiary hearing before issuing the permanent injunction.

In sum, the Ninth Circuit held the district court properly issued an injunction, which would last only until APHIS’s completion of an EIS, and denied the Defendants’ request for an evidentiary hearing.

Judge N. Randy Smith dissented, criticizing the majority’s decision to affirm the district court’s denial of the requisite evidentiary hearing. According to Judge Smith, “the district court was required to conduct an evidentiary hearing before issuing a permanent injunction . . . unless 1) the facts were undisputed; or 2) the adverse party expressly waived its right to an evidentiary hearing.”[18] Finding that the facts were “sharply disputed by the parties,”[19] and that Monsanto and Forage Genetics requested an evidentiary hearing, Judge Smith claimed that the Ninth Circuit improperly denied the request for an evidentiary hearing.

Judge Smith argued that the Ninth Circuit deprived the parties of important procedural rights and created an entirely new exception to the established evidentiary hearing requirement.[20] Judge Smith reasoned that the evidentiary hearing requirement is essential because it affords the district court an opportunity to “better ascertain the nature of the alleged injury and to further understand the balance of the hardships associated with the parties’ varying proposals for injunctive relief.”[21] According to Judge Smith, the consideration of witness testimony, along with the opportunity for cross-examination, is the procedural protection justifying the abuse of discretion standard of review. Because the court did not conduct an evidentiary hearing, Judge Smith argued there was no need for the Ninth Circuit to afford the lower court any discretion in reviewing the court’s permanent injunction order. Finally, reiterating his “serious concerns” with the scope of the injunction, Judge Smith indicated he would have remanded the case and require that the district court conduct an evidentiary hearing.[22]

^[1] The consumer and environmental advocacy organizations included the Center for Food Safety, Beyond Pesticides, Cornucopia Institute, Dakota Resource Council, National Family Farm Coalition, Sierra Club, and Western Organization of Resource Councils.

^[2] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 4321-4370e (2006).

^[3] Geertson Farms, Inc. v. Johanns, No. C 06-01075 CRB, 2007 WL 1302981 (N.D. Cal. 2007).

^[4] See 7 C.F.R. § 340.0(a)(2) n.1 (2008).

^[5] Geertson Seed Farms v. Johanns, 541 F.3d 938, 942 (9th Cir. 2008).

^[6] See Monsanto Co. and Forage Genetics International; Availability Determination of Nonregulated Status for Alfalfa Genetically Engineered for Tolerance to the Herbicide Glyphosate, 70 Fed. Reg. 36,917, 36,918 (June 27, 2005).

^[7] Geertson Seed Farms, 541 F.3d at 942.

^[8] Id. at 943.

^[9] See Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir. 2002) (reviewing for an abuse of discretion when there area no issues of law).

^[10] N. Cheyenne Tribe v. Norton, 503 F.3d 836, 943 (9th Cir. 2007)(citing eBay v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

^[11] See eBay v. MercExchange, L.L.C., 547 U.S. 388, 394 (2006).

^[12] See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).

^[13] See eBay, 547 U.S. at 394.

^[14] APHIS did not request an evidentiary hearing and did not join with Monsanto and Forage Genetics in challenging this issue on appeal.

^[15] 307 F.3d 815, 831 (9th Cir. 2002) (holding that an evidentiary hearing was not required before issuing permanent injunction in a case involving violation of NEPA).

^[16] Id.

^[17] Geerston Seed Farms, 541 F.3d 938, 947 (9th Cir. 2008)(quoting Idaho Watersheds, 307 F.3d at 831).

^[18] Id. at 948 (Smith, J., dissenting).

^[19] Id.

^[20] See Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988).

^[21] Geerston Seed Farms, 541 F.3d at 949 (Smith, J., dissenting).

^[22] Id.