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Ecology Center, Inc. v. Austin


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Environmental organization Ecology Center, Inc. (Ecology Center) filed suit against Deborah Austin, Forest Supervisor for the Lolo National Forest, the U.S. Forest Service, and other government entities (Forest Service) over the Forest Service’s Lolo National Forest Post Burn Project (Lolo Project), which was developed in the wake of wildfires that swept through the Lolo National Forest in 2000. Under the National Forest Management Act (NFMA), [1] Ecology Center challenged the Forest Service’s decision to permit commercial logging in old-growth forest stands on the grounds that it would improperly impact old-growth dependant species, such as the pileated woodpecker and the northern goshawk. Under the National Environmental Policy Act (NEPA), [2] Ecology Center challenged the Forest Service’s analysis of salvage logging in post-fire habitat with respect to sensitive species, and raised concerns regarding both the impacts of the Lolo Project on soil conditions, and the reliability of the Forest Service’s soil quality analysis.[3] The Ninth Circuit found that the Forest Service’s decision to permit logging post-fire old-growth forest habitat to be arbitrary and capricious. In reversing the district court’s grant of summary judgment to the Forest Service, the Ninth Circuit granted summary judgment in favor of Ecology Center and remanded the case back to the Forest Service to prepare a new EIS for the project.

NFMA imposes procedural requirements on the Forest Service by requiring it to develop land and resource management plans for every forest that it manages, and requiring the Forest Service’s management activities to be consistent with this forest plan.[4] In addition, NFMA imposes the substantive requirement that the Forest Service maintain both wildlife viability and soil productivity in the forests it manages, and that it develop regulations specifying guidelines to achieve these mandates.[5] NEPA contains entirely procedural requirements. It requires agencies to “publicly consider the environmental impacts of their actions.”[6] This consideration “must amount to a ‘hard look’ at the environmental effects,”[7] and requires the agency to prepare a detailed Environmental Impact Statement (EIS)[8] which “provide[s] full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts.”[9]

Wildfires burned approximately 74,000 acres of the Lolo National Fo rest in Western Montana in 2000. The Forest Service developed the Lolo Project in response to the fires, and prepared an EIS for the project pursuant to NEPA. In the EIS, the Forest Service selected an action alternative that involved commercial thinning of small-diameter timber and prescribed burning in old-growth stands, in addition to salvage logging of burned and insect-killed trees. The Forest Service cited a number of studies that indicated such management activities are necessary to remedy uncharacteristic forest development resulting from years of fire suppression. Ecology Center argued that scientific uncertainty and debate remain in regards to the necessity, design, and long-term effects of the recommended old-growth treatments. In addition, it argued such logging harms species dependant on old-growth habitat. Ecology Center filed suit against the Forest Service in 2003, objecting to the Lolo Project on both NEPA and NFMA grounds, and moving for a temporary restraining order and a preliminary injunction, both of which were denied by the district court. The district court then granted the Forest Service summary judgment, and Ecology Center appealed.

The Ninth Circuit’s review of a district court’s grant of summary judgment is de novo.[10] Review of agency actions challenged under both NEPA and NFMA are evaluated under the judicial review provisions of the Administrative Procedure Act (APA)[11] to determine whether the actions are “arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.”[12]

Ecology Center argued that because the Forest Service did not assess the effects of old-growth treatment on species, it could not be reasonably certain that its actions were consistent with NFMA’s substantive requirement that the agency ensure species diversity and viability. The Forest Service argued that it did not need to monitor the impact of treating old-growth on dependant species because it had observed the short-term effects of thinning via commercial logging and prescribed burning on old-growth forest composition. The Forest Service claimed that certain old-growth dependent species prefer post-treatment old-growth stands and therefore the assumption that treatment does not harm old-growth dependent species is reasonable. The Forest Service must demonstrate that its scientific methodology used in its decision-making process is reliable for a decision to survive arbitrary and capricious review.[13] While an agency’s choice of methodology should be treated with deference by the court,[14] there are “circumstances under which an agency’s choice of methodology, and any decision predicated on that methodology, are arbitrary and capricious.”[15] The Forest Service argued that Inland Empire Public Lands Council v. U.S. Forest Service[16] requires the court to defer to the Forest Service’s decision to monitor the effects of old-growth logging and burns on forest composition but not species. The Ninth Circuit rejected this argument on the grounds that this “proxy-on-proxy” approach to monitoring species populations, which it ruled to be an acceptable method of monitoring species viability in Inland Empire, was distinguishable from the facts in this case. The “proxy-on-proxy” approach involved the designation of “management indication species” as proxies for species with comparable habitat needs and designates types of habitat as proxies for the management indicator species. This approach assumes that a species remains viable if the requisite amount of habitat is maintained. In contrast, the Lolo Plan does not involve maintaining sufficient old-growth habitat to support species. Rather, it allows for old-growth composition to be altered through an invasive process. Because the Lolo Plan allows the Forest Service to treat old-growth without studying the effects of its activity on dependant species, the Ninth Circuit found the Forest Service action to be arbitrary and capricious in regards to its NFMA responsibilities. The Ninth Circuit next determined that the Lolo Project EIS failed to address the scientific uncertainty regarding the effects of old-growth treatment on dependant species, and thus its analysis of the impacts of old-growth treatment was also inadequate under NEPA.

Before the 2000 fires, the Lolo National Forest had a “critical shortage”[17] of habitat for the black-backed woodpecker, a species that relies on post-fire landscapes for habitat. The Forest Service had designated the black-backed woodpecker as a “sensitive species” and, along with other post-fire habitat dependent species, considered it to be “at extreme risk.”[18] The Forest Service argued that the Lolo Project complied with NFMA because it would involve salvage logging on only a small portion of the post-fire habitat created by the 2000 fires. However, the Ninth Circuit found the EIS failed to “adequately explain the basis for the Forest Service’s conclusion that eliminating a portion of the newly-created habitat will not adversely affect the black-backed woodpeckers’ viability.”[19] Before the 2000 fires, Forest Service experts had concluded that any post-fire salvage in the area would impact the species “with a consequence that the action may contribute to a trend towards federal listing or cause a loss of viability to the population or species.”[20] While noting that salvage activities in post-fire habitat may adversely affect individual black-backed woodpeckers, the EIS stated that this activity was not likely to result in a trend towards federal listing. In light of the agency’s earlier statements regarding species viability, the Ninth Circuit found that this assertion failed to “constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.”[21]

The only basis the court found for the Forest Service’s changed position on the impact of salvage logging on the black-backed woodpecker in the EIS was the additional post-fire habitat the 2000 fires created. However, the court found this fact alone insufficient to justify the proposed action. The EIS did not identify the threshold between “critical” and “sufficient” levels of post-fire habitat for species viability, nor did it explain how such a threshold was to be determined. In addition, the EIS failed to identify how low habitat levels would have to drop to cause the species to become threatened, and how the Forest Service planned to generate additional habitat. Where the information in an EIS was “so incomplete or misleading that the decisionmaker and the public could not make an informed comparison of the alternatives, revision of an EIS may be necessary to provide ‘a reasonable, good faith, and objective presentation of the subjects required by NEPA.’”[22] The Ninth Circuit thus held that the Lolo Plan violated NEPA because it failed to provide both an adequate explanation for its impact assessment and sufficient information to support its decision to permit salvage logging in black-backed woodpecker habitat.

Under NFMA, the Forest Service must “provide for diversity of plant and animal communities,”[23] an obligation which “applies with special force to ‘sensitive’ species.”[24] In addition, the Lolo National Forest Plan requires the Forest Service to “maintain population viability” for species that are not listed “where viability is a concern (i.e. sensitive species).”[25] The Forest Service violates NFMA if the court “cannot reasonably determine that the Forest Service has complied with the [Forest] Plan.”[26] Because the Forest Service did not provide a factual basis for its analysis and did not explain its decision adequately, the Ninth Circuit held its decision to permit salvage logging in black-backed woodpecker habitat to be arbitrary and capricious under NFMA.

Ecology Center next claimed that the Forest Service’s soil quality analysis was inadequate because it employed an unreliable method for determining the percentage of damaged soil in each activity area.[27] The Forest Service evaluated soil conditions for the Lolo Project on the basis of maps, samples taken throughout the forest, aerial reconnaissance, and computer modeling, but it did not make direct observations of soil conditions in the activity areas. The court analogized this situation to a “nearly identical claim”[28] it addressed in Lands Council, in which it held the Forest Service’s “reliance on . . . spreadsheet models, unaccompanied by on-site spot verification of the model’s predictions, violated NFMA.”[29]

The Forest Service argued that the Regional Soil Quality Standard was not binding on projects in the Lolo National Forest, and that the Lolo Project was distinguishable from Lands Council because the Forest Service had conducted sufficient on-the-ground verification of its soil quality estimates for the Lolo Project. The court rejected both arguments. It reasoned that even if the Soil Quality Standard did not have the force of law “it would nonetheless be arbitrary and capricious for the Forest Service to ignore it because both the draft EIS and final EIS discuss[ed] the Standard as if it [was] binding and claim[ed] that the Service developed the Project in compliance with its provisions.”[30] Because the Forest Service relied upon the Soil Standard in the EIS, its subsequent treatment of the Standard as optional rendered the EIS to be in violation of NEPA. Further, the Ninth Circuit found that while the Soil Standard was designed to ensure compliance with NFMA, the Forest Service failed to explain how the Project would achieve NFMA compliance without following the Standard.

The Ninth Circuit next addressed whether the Forest Service’s on-site soil sampling was adequate. The court found that the transects the Forest Service conducted following the 2000 fires did not distinguish the Lolo Project from Lands Council because the transects targeted burned areas generally, not the areas in which the proposed logging would occur. The Forest Service next argued that its soil analysis was reliable because it relied on data similar to the proposed harvest areas. The court rejected this, noting “Lands Council expressly rejected this same argument.”[31] Further, the court noted a Forest Service expert had commented that the conclusions regarding soil conditions in the EIS lacked credibility because the Forest Service failed to test the area. While the Forest Service presented evidence of “informal field reports”[32] indicating direct observation in some of the activity areas, the court found this evidence to be insufficient to fulfill the requirements of the Soil Quality Standard because the EIS did not indicate the Forest Service relied on these field reports in the NEPA process. The Ninth Circuit finally rejected the Forest Service’s argument that its plan to verify soil conditions in each area prior to logging fulfilled the requirements of NEPA and NFMA. It concluded that the decision to verify soil conditions after authorizing the project failed to distinguish the case from Lands Council and violated NFMA. In addition, the post-authorization verification of soil conditions violated NEPA because “NEPA requires consideration of the potential impact of an action before the action takes place.”[33]

In conclusion, the action alternative the Forest Service selected for the Lolo Project violated both NFMA and NEPA. The Ninth Circuit reversed the district court’s grant of summary judgment to the Forest Service and ordered it entered in favor of Ecology Center. The case was remanded to the Forest Service to produce a revised EIS consistent with this opinion.

Judge McKeown dissented because she believed the majority exceeded the court’s limited discretion to review agency actions under the arbitrary and capricious standard. She stated: “[the] extension of Lands Council . . . represents an unprecedented incursion into the administrative process and ratchets up the scrutiny we apply to the scientific and administrative judgments of the Forest Service.”[34] She believed that Lands Council should be restricted to its facts because otherwise it makes “compliance with NFMA and NEPA a moving target.”[35] According to Judge McKeown, the “nearly identical” soil analysis in this case was insufficient to invoke a comparison to Lands Council, and instead led the majority to a more-stringent standard of review than the “hard look” standard of review and to inappropriately question the science relied on by the Forest Service. To reach its conclusion, she believed the majority “[took] aim at two firmly established lines of precedent in administrative law” by applying a stricter standard of review than “arbitrary and capricious” and by failing to defer to the agency’s expertise in scientific and technical matters.[36]

[1] National Forest Management Act of 1976, 16 U.S.C. §§ 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, No. 93-378, 88 Stat. 476).

[2] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370f (2000).

[3] In a separate suit, the Sierra Club challenged the Lolo Project on different grounds. The Ninth Circuit rejected the Sierra Club’s challenge to Forest Service’s assessment of the Lolo Project’s effect on water quality under NEPA, but found the analysis of the Lolo Project’s impact on roadless areas inadequate. After remand to the district court, the parties settled. Sierra Club, Inc. v. Austin, Nos. 03-35419, 03-35537, 03-35550, 2003 WL 22854670, slip op. at 2 (9th Cir. Dec. 2, 2003).

[4] 16 U.S.C. § 1604 (2000).

   [5] Id. § 1604(g)(3).

[6] Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 963 (9th Cir. 2002).

   [7] Id.

[8] National Environmental Policy Act of 1969, 42 U.S.C. § 4332(C) (2000).

[9] 40 C.F.R. § 1502.1 (2002).

[10] See Lands Council v. Powell, 379 F.3d 738, 743 (9th Cir. 2004), amended by 395 F.3d 1019 (9th Cir. 2005).

[11] 5 U.S.C. § 706(2)(A) (2000).

[12] Lands Council, 379 F.3d at 743.

[13] Id. at 752.

[14] Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th Cir. 1994).

[15] Ecology Center v. Austin, 430 F.3d 1057, 1064 (9th Cir. 2005).

[16] 88 F.3d 754 (9th Cir. 1996).

[17] Ecology Center, 430 F.3d at 1066.

[18] Id.

[19] Id. at 1067.

[20] Id. at 1066.

[21] Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998).

[22] Animal Def. Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir. 1988) (quoting Johnston v. Davis, 698 F.2d 1088, 1095 (10th Cir. 1983)).

[23] 16 U.S.C. § 1604(g)(B)(3) (2000).

[24] Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556 n.2 (9th Cir. 2000).

[25] Ecology Center, 430 F.3d at 1068.

[26] Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005).

[27] The Regional Soil Quality Standard prevents the Forest Service from permitting any activity that will create detrimental soil conditions in more than fifteen percent of the area in which the activity occurs.

[28] Ecology Center, 430 F.3d at 1069.

[29] Lands Council, 379 F.3d at 752-53.

[30] Ecology Center, 430 F.3d at 1069.

[31] Id. at 1070.

[32] Id.

[33] Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998).

[34] Ecology Center, 430 F.3d at 1073.

[35] Id. at 1073.

[36] Id. at 1077.

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