ALLIANCE FOR THE WILD ROCKIES; IDAHO SPORTING CONGRESS; NATIVE ECOSYSTEMS COUNCIL, Plaintiffs-Appellants,
UNITED STATES FOREST SERVICE; THOMAS TIDWELL, Chief of the Forest Service; KEITH LANNOM, Forest Supervisor for Payette National Forest; NORA RASURE, Regional Forester for Region 4 for the U.S. Forest Service, Defendants-Appellees, and ADAMS COUNTY, a political subdivision of the State of Idaho; PAYETTE FOREST COALITION, an unincorporated Idaho association, Intervenor-Defendants-Appellees.
and Submitted February 5, 2018 Seattle, Washington
from the United States District Court D.C. No.
1:15-cv-00193-EJL District of Idaho, Boise for the District
of Idaho Edward J. Lodge, District Judge, Presiding
Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO,
and appearing at 899 F.3d 970, is hereby amended. An amended
opinion is filed herewith.
petitions for panel rehearing are DENIED (Doc. 58, 61). No
further petitions for rehearing or rehearing en banc will be
entertained in this case.
Emergency Motion for Injunction and Appellees' Motion to
file an oversized response are DENIED as moot (Docs. 65, 68).
Clerk is DIRECTED to immediately issue the mandate.
MURGUIA, CIRCUIT JUDGE:
case requires us to determine whether the Forest
Service's management direction for a particular section
of Idaho's Payette National Forest is consistent with the
management direction that governs the forest as a whole. In
September 2014, the United States Forest Service approved the
Lost Creek-Boulder Creek Landscape Restoration Project
("Lost Creek Project" or "Project"),
which proposed landscape restoration activities on
approximately 80, 000 acres of the Payette National Forest.
Following approval of the Project, Plaintiffs-Appellants the
Alliance for the Wild Rockies, Idaho Sporting Congress, and
Native Ecosystems Council (collectively,
"Alliance") filed suit in federal court, claiming
Defendants-Appellees United States Forest Service, Thomas
Tidwell, Keith Lannom, and Nora Rasure (collectively,
"Forest Service") violated the National Forest
Management Act ("NFMA") by failing to adhere to the
requirements of the 2003 Payette National Forest Land and
Resource Management Plan ("the Payette Forest Plan"
or "the 2003 Plan"). The 2003 Plan governs
management decisions on all land within the Payette National
Forest, including the Lost Creek Project. Specifically, the
Alliance claimed that the Forest Service acted inconsistently
with the Payette Forest Plan, in a manner that would harm
certain habitat within the forest, when it created a new
definition for "old forest habitat" and designated
certain land to be managed for landscape restoration, as
opposed to commodity production. According to the Alliance,
although the Lost Creek Project espoused certain
environmental benefits, the upshot of these decisions would
be an increase in commercial logging and a decrease in
habitat protected as "old forest." The Alliance
also claimed the Forest Service violated the National
Environmental Policy Act ("NEPA") by improperly
incorporating the analysis of-or "tiering to"-prior
agency documents that did not undergo a full NEPA review.
Finally, the Alliance claimed the Forest Service violated the
Endangered Species Act ("ESA") by failing to
reinitiate consultation with the United States Fish and
Wildlife Service regarding the effects on critical habitat
for the bull trout.
present appeal, the Alliance challenges the district
court's grant of summary judgment in favor of the Forest
Service and Intervenor-Defendants-Appellees Adams County and
the Payette Forest Coalition (collectively, "Adams
County"). We have jurisdiction under 28 U.S.C. §
1291. We affirm in part and reverse and remand in part.
Statutory & Factual Background
NFMA charges the Forest Service with the management of
national forest land, including planning for the protection
and use of the land and its natural resources. See
16 U.S.C. § 1600 et seq. Under NFMA, forest
land management occurs on two levels: (1) the forest level,
and (2) the individual project level. Native Ecosystems
Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012).
"On the forest level, the Forest Service develops a Land
and Resource Management Plan (forest plan), which consists of
broad, long-term plans and objectives for the entire
forest." Id. The forest plan is then
implemented at the project level. See id.
Site-specific projects and activities must be consistent with
an approved forest plan. 16 U.S.C. § 1604(i); 36 C.F.R.
§ 219.10(e)(1998); Native Ecosystems Council v. U.S.
Forest Serv., 418 F.3d 953, 961 (9th Cir. 2005)
("It is well-settled that the Forest Service's
failure to comply with the provisions of a Forest Plan is a
violation of NFMA."); Idaho Sporting Cong., Inc. v.
Rittenhouse, 305 F.3d 957, 962 (9th Cir. 2002)
("[A]ll management activities undertaken by the Forest
Service must comply with the forest plan, which in turn must
comply with the Forest Act . . . ."). A project is
consistent if it conforms to the applicable
"components" of the forest plan, including the
standards, guidelines, and desired conditions that are set
forth in the forest plan and that collectively establish the
details of forest management. Consistency under agency
regulations depends upon the component type. The Forest
Service must strictly comply with a forest plan's
"standards," which are considered binding
limitations, but it may deviate from the forest plan's
"guidelines," so long as the rationale for
deviation is documented.
is a procedural statute that requires the federal government
to carefully consider the impacts of and alternatives to
major environmental decisions." Weldon, 697
F.3d at 1051. "The National Environmental Policy Act has
twin aims. First, it places upon [a federal] agency the
obligation to consider every significant aspect of the
environmental impact of a proposed action. Second, it ensures
that the agency will inform the public that it has indeed
considered environmental concerns in its decisionmaking
process." Kern v. U.S. Bureau of Land Mgmt.,
284 F.3d 1062, 1066 (9th Cir. 2002) (alteration in original)
(internal quotation marks and citation omitted). "NEPA
requires agencies to take a 'hard look' at the
environmental consequences of proposed agency actions before
those actions are undertaken." All. for the Wild
Rockies v. Pena, 865 F.3d 1211, 1215 (9th Cir. 2017)
Payette National Forest
Payette National Forest contains approximately 2, 300, 000
acres of national forest system lands in west central Idaho.
The region is 87% forested and contains portions of the
Salmon, Payette, and Weiser River systems and parts of the
Salmon River Mountains. It is home to many species, including
the threatened bull trout.
Payette National Forest is managed in accordance with the
2003 Payette Forest Plan, pursuant to the NFMA. Emphasizing
restoration and maintenance of vegetation and watershed
conditions, the 2003 Plan divides the Payette Forest into 14
sections that are called "management areas"
("MA"). The land within each MA is assigned to
various categories that determine how the land is managed.
These categories are called Management Prescription
Categories ("MPC"). The categories range from
"Wilderness" (MPC 1.0) to "Concentrated
Development" (MPC 8.0).
here, MPC 5.1 places an emphasis on landscape restoration in
order to provide habitat diversity, reduced fire risk, and
"sustainable resources for human use." Timber
harvest may occur on MPC 5.1 land, as an outcome of
maintaining resistance to fire, but timber yield is not the
primary purpose. MPC 5.1 constitutes 193, 000 acres of the
Payette Forest under the Payette Forest Plan. In contrast,
MPC 5.2 is forested land that has an emphasis on achieving
sustainable resources for commodity outputs, such as timber
production. MPC 5.2 constitutes 247, 000 acres under the 2003
2011, the Forest Service proposed amendments to the Payette
Forest Plan. The proposed amendments, which were called the
Wildlife Conservation Strategy ("WCS"), would
prioritize activities that would help maintain or restore
habitat for certain species of wildlife that the Forest
Service determined were in greatest need of conservation.
Relevant here, the WCS amendments proposed deleting MPC 5.2
(commodity production) in its entirety, and replacing it with
MPC 5.1 (restoration). The WCS amendments also proposed changes
to Appendix E of the 2003 Payette Forest Plan, to include a
new criteria for defining "Old Forest Habitat," a
designation that refers to older habitat marked by large
trees and which is particularly good habitat for wildlife.
The Forest Service released a draft environmental impact
statement ("WCS DEIS") for the proposed amendments
pursuant to NEPA. However, following the public comment
period on the WCS DEIS, the Forest Service stopped the
process, and the WCS amendments were never adopted, leaving
the 2003 Payette Forest Plan fully in effect. According to
the Alliance, the WCS amendments, including the switch from
MPC 5.2 to MPC 5.1 and the new definition of "Old Forest
Habitat," were controversial policies that paved the way
for logging more trees.
2012, the Forest Service initiated the Lost Creek Project,
which proposed landscape restoration activities on
approximately 80, 000 acres of the Payette National Forest,
including commercial and non-commercial logging, prescribed
fires, road closures, and recreation improvements. The
Project area spans three management areas, MA3 (Weiser
River), MA4 (Rapid River), and MA5 (Middle Little Salmon
River), and includes land designated for
"restoration" (MPC 5.1) and "commercial
production" (MPC 5.2) under the 2003 Plan. In the
Project's final environmental impact statement
("Project FEIS") published in March 2014, the
Forest Service states that the purpose of the Project is to
move vegetation toward the Forest Plan's "desired
conditions," which are those conditions deemed desirable
to achieve the specific purpose for each MPC. The FEIS
further states that the Project is "consistent with the
science in the Forest's [WCS DEIS]," which includes
improving habitat for species of concern, maintaining and
promoting large tree forest structure and forest resiliency,
and reducing the risk of undesirable wildland fire. The
Project also aims to restore certain streams, with an
emphasis on restoring habitat occupied by ESA-listed species,
such as the bull trout.
September 2014, the Forest Service entered the final record
of decision (ROD) for the Lost Creek Project, selecting, from
the five alternatives discussed in the FEIS, a modified
version of Alternative B, which implemented recreation
improvement, road management, watershed restoration, and
vegetation management, including 22, 100 acres of commercial
logging and approximately 17, 700 acres of non-commercial
logging. In the ROD, the Forest Service also approved a
"minimum road system" for the Project,
decommissioning approximately 68 miles of roads and
designating 401 miles of roads for maintenance or improvement
in the Project area.
2015, the Alliance filed suit in the District of Idaho,
alleging the Forest Service violated the NFMA, ESA, and NEPA
and acted arbitrarily and capriciously under the
Administrative Procedure Act ("APA"), 5 U.S.C.
§ 706(2)(A), when it finalized the Lost Creek Project.
The Alliance requested the district court enjoin
implementation of the Project. On August 31, 2016, the
district court granted summary judgment for the Forest
Service and Adams County, concluding that the Project was
consistent with the 2003 Forest Plan and applicable law, and
that the Forest Service had not acted arbitrarily or
capriciously in approving the Project. Notably, the district
court concluded that the Lost Creek Project was consistent
with the 2003 Payette Forest Plan. The district court denied
the Alliance's cross-motion for summary judgment, and
entered judgment in favor of the Forest Service. The Alliance
Standard of Review
court reviews challenges to final agency action decided on
summary judgment de novo. Turtle Island Restoration
Network v. Nat'l Marine Fisheries Serv., 340 F.3d
969, 973 (9th Cir. 2003). Review is based on the