Home » Case Summaries » 2008 » League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Service

 
 

League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Service

 

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Two environmental groups, League of Wilderness Defenders-Blue Mountains Biodiversity Project and Cascadia Wildlands Project (collectively LOWD), sought declaratory and injunctive relief against the United States Forest Service (USFS) for a project that allowed commercial logging in the Ochoco National Forest. LOWD sued USFS pursuant to the Administrative Procedure Act (APA),[1] alleging that the Deep Creek Vegetation Management Project (Project) violated the National Environmental Policy Act (NEPA),[2] the National Forest Management Act (NFMA),[3] and the area’s Land and Resource Management Plan (LRMP). The United States District Court for the District of Oregon granted summary judgment to USFS. On appeal, the Ninth Circuit upheld the district court’s ruling on the NFMA claims, holding that USFS properly marked large-diameter trees to avoid unauthorized harvesting and adequately maintained connective habitat corridors in the Project’s planning area. However, the Ninth Circuit reversed the district court’s NEPA ruling and remanded the case to USFS to issue NEPA documentation that considered the effects of past timber sales in conjunction with the Project.

In 1999, after a USFS report, the Deep Creek Watershed Analysis (Watershed Analysis), recommended a mix of management actions to improve conditions in the Deep Creek watershed, USFS initiated NEPA documentation for the Project. In January 2004, USFS issued a final supplemental environmental impact statement (FSEIS) and a corresponding record of decision (ROD).[4] The ROD selected the Project alternative which allowed commercial timber harvesting, precommercial thinning, fuel-reduction treatments, new and temporary road construction, and road re-construction. In all, the Project allowed logging of 12.8 million board feet of timber, primarily through tractor logging. After USFS denied LOWD’s administrative appeal of the ROD, LOWD sued USFS in district court, alleging that the Project violated NEPA, NFMA, and the LMRP. The district court adopted the findings and recommendations of the magistrate judge, granted summary judgment to USFS, and dismissed LOWD’s suit. LOWD timely appealed.

The Ninth Circuit reviews a district court’s summary judgment ruling de novo.[5] Under the APA, the Ninth Circuit may set aside only actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[6] To violate this narrow standard, the agency must have made a “clear error of judgment.”[7]

The Ninth Circuit first examined LOWD’s allegation that USFS violated NEPA[8] by failing to adequately consider the cumulative effects of the Project because USFS considered cumulative effects in the aggregate. The Ninth Circuit rejected USFS’s argument that Department of Transportation v. Public Citizen[9] allowed USFS to consider the effects of past actions in the aggregate,[10] because in this case, unlike in Public Citizen, USFS possessed statutory authority to regulate the environmental consequences of the Project.[11] However, the Ninth Circuit concluded that a 2005 Council on Environmental Quality (CEQ) memorandum interpreting NEPA regulations, which the magistrate judge struck from the record, did grant USFS the authority to consider past effects in the aggregate. The Ninth Circuit ruled that the magistrate judge’s decision to strike the CEQ memorandum constituted an abuse of discretion. Further, the memorandum deserved deference under Auer v. Robbins,[12] even though USFS offered the memorandum to support its interpretation of NEPA regulations for the first time during summary judgment proceedings, because the memorandum’s interpretation was not “plainly erroneous or inconsistent” with the regulations and LOWD failed to offer evidence that the interpretation did not reflect CEQ’s “fair and considered judgment” on the cumulative effects issue.[13] The court also noted that although Ninth Circuit precedent required USFS to catalogue “relevant” past timber sales,[14] the court reasoned that it could not “tell [USFS] what specific evidence to include, [or] how specifically to present it.”[15]

Although the Ninth Circuit concluded that USFS’s analysis of cumulative impacts in aggregate form satisfied NEPA, the court held the Project’s FSEIS itself failed review for arbitrary and capriciousness. The Ninth Circuit explained the FSEIS failed review for being arbitrary and captricious. USFS had argued that the Watershed Analysis, which prompted the Project but had not been subject to NEPA review, considered the past effects of timber sales and supplemented the FSEIS’s specific mention of only one previous timber sale. Citing the Ninth Circuit’s previous decision in Kern v. Bureau of Land Management,[16] the court reasoned that USFS could not, under NEPA regulations,[17] tier the FSEIS to the Watershed Analysis because the Watershed Analysis was a non-NEPA document. Thus, the Ninth Circuit reversed the district court’s ruling and remanded the case to USFS to reissue NEPA documentation that included relevant information about past timber sales.

Next, the Ninth Circuit addressed LOWD’s claims that USFS failed to consider the impact of future timber sales as part of its cumulative effects analysis. The FSEIS expressly stated that USFS did not plan for any timber projects within the Deep Creek watershed for the foreseeable future, which distinguished the Project from others with multiple planned timber sales.[18] Thus, because USFS had no reason to discuss the effects of future timber sales to satisfy the cumulative effects standard, the Ninth Circuit affirmed the district court’s ruling.

The Ninth Circuit also rejected LOWD’s argument that USFS failed to consider past, present, and future grazing practices as part of NEPA’s cumulative effects analysis. First, the court ruled that the FSEIS adequately evaluated the cumulative effects of past grazing, because the FSEIS traced the detrimental impacts of grazing on the watershed through various eras of land management. Second, the court concluded the FSEIS considered present grazing practices in its cumulative effects analysis, because the USFS discussed grazing practices’ present effect on the watershed in several sections, including a section titled “Cumulative Effects on Range.” Finally, because the FSEIS explained that future grazing regimes and specific grazing allotments were to be considered under separate environmental analyses, the court reasoned that any discussion of future effects from grazing was impracticable. Thus, the Ninth Circuit affirmed the district court’s ruling that the FSEIS adequately considered the cumulative effects of grazing.

The Ninth Circuit then considered LOWD’s contention that the Project would violate NFMA and the Ochoco LRMP by allowing the logging of trees equal to or greater than twenty-one inches in diameter[19] and by failing to ensure agency personnel marked the trees.[20] Responding to the district court’s concerns about correct marking of trees, USFS produced declarations of two USFS employees. One employee described how she supervised the training and work of the marking crew, and the other employee conveyed how the timber sale contract described the tree marking and provided further protections against unauthorized harvest. Based on these declarations, the Ninth Circuit affirmed the district court’s decision that the marking complied with NFMA and with the requirements of the Ochoco LRMP.

Finally, the Ninth Circuit examined LOWD’s allegation that the Project failed to maintain connective habitat corridors in the planning area, in violation of NFMA and the Ochoco LRMP. The Ochoco LRMP’s standards allow harvesting within corridors that connect old growth habitats if the corridors, inter alia, maintain stands with canopy closures that are within the top one-third of site potential and stand widths remain at least 400 feet wide at their narrowest point.[21] LOWD interpreted the LRMP standards to require that all stands within a connective corridor must be in the top one-third of site potential. Under LOWD’s interpretation, because the FSEIS stated that 77% of the planning area did not contain canopy closures within the top one-third of site potential, none of the timber stands met the connectivity corridor requirements. In contrast, USFS interpreted the standards to apply to individual stands, not connective corridors as a whole, which would permit harvesting within a stand that met the canopy closure and width requirements, regardless of which corridor the stand was in.

The Ninth Circuit deemed USFS’s interpretation of the connectivity corridor requirements more persuasive than LOWD’s. Under the deferential standard of Auer v. Robbins,[22] USFS’s interpretation did not appear plainly erroneous or inconsistent because the LRMP’s standards referred to individual stands instead of “every stand or all stands” and allowed harvesting “within connectivity corridors” instead of “harvesting a connectivity corridor” or “harvesting connectivity corridors” generally.[23] The court also explained that the FSEIS relied on certified findings that the silvicultural treatments would ensure that the stands would remain within the top one-third of their site potential. Furthermore, the court observed that LOWD did not dispute that the Project would fulfill the Ochoco LRMP’s substantive requirement to maintain connective corridors. Thus, the Ninth Circuit affirmed the district court’s ruling that the Project did not violate the connective-corridor requirements of NFMA and the Ochoco LRMP.

In conclusion, the Ninth Circuit affirmed the district court’s grant of summary judgment to USFS on LOWD’s claims under NFMA and the Ochoco LRMP. The Ninth Circuit also affirmed that USFS’s consideration of the effects of grazing practices and present and future timber sales in the Deep Creek area satisfied NEPA’s requirement to adequately consider the Project’s cumulative effects. Although the court held USFS could analyze the effects of past timber sales in the aggregate, it concluded that USFS violated NEPA by tiering the FSEIS to a planning document that lacked NEPA analysis. Thus, the Ninth Circuit reversed the district court’s grant of summary judgment in favor of USFS and remanded the task of preparing NEPA-compliant documentation of the effects of past timber sales to the agency.


[1] 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2006).

[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] USFS initially released an FSEIS and ROD in September 2001. LOWD filed an administrative appeal against the ROD, which prompted USFS to withdraw the ROD for further analysis and public comment. League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv. (League of Wilderness Defenders), 549 F.3d 1211, 1214 (9th Cir. 2008).

[5] Nw. Envtl. Advocates v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1132 (9th Cir. 2006).

[6] 5 U.S.C. § 706(2) (2006).

[7] Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

[8] National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (2006); 40 C.F.R. § 1508.7 (2008).

[9] 541 U.S. 752 (2004).

[10] Id. at 769-70.

[11] See Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1134 n.20 (9th Cir. 2007).

[12] 519 U.S. 452, 461 (1997).

[13] League of Wilderness Defenders, 549 F.3d 1211, 1217-18 (9th Cir. 2008).

[14] Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2005).

[15] League of Wilderness Defenders, 549 F.3d at 1219.

[16]284 F.3d 1062, 1072-73 (9th Cir. 2002).

[17] 40 C.F.R. § 1508.28 (2008).

[18] See, e.g., Blue Mountain Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214-16 (9th Cir. 1998) (holding NEPA analysis inadequate when Environmental Assessment failed to analyze multiple future salvage logging projects within the Tower Fire area).

[19] National Forest Management Act of 1976, 16 U.S.C. § 1604(i) (2006) (mandating consistency between site-specific projects and LRMPs). The Ochoco LRMP, as amended in 1993, proscribed “the logging of green trees larger than 21 inches at breast height.” League of Wilderness Defenders, 549 F.3d at 1221.

[20] 16 U.S.C. § 472a(g) (2006).

[21] League of Wilderness Defenders, 549 F.3d at 1222 (citing standard 6(d)(3)(a)(2) of the Ochoco LRMP).

[22] 519 U.S. 452, 461-62 (1997) (discussing how an agency’s interpretation of its own regulations is entitled to substantial deference).

[23] League of Wilderness Defenders, 549 F.3d at 1223.

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