Alliance for Wild Rockies v. United States Forest Service

          Argued and Submitted February 5, 2018 Seattle, Washington

          Appeal 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, ^[*] District Judge.

         The, and appearing at 899 F.3d 970, is hereby amended. An amended opinion is filed herewith.

         The petitions for panel rehearing are DENIED (Doc. 58, 61). No further petitions for rehearing or rehearing en banc will be entertained in this case.

         Appellant's Emergency Motion for Injunction and Appellees' Motion to file an oversized response are DENIED as moot (Docs. 65, 68).

         The Clerk is DIRECTED to immediately issue the mandate.

          AMENDED OPINION

          MURGUIA, CIRCUIT JUDGE:

         This 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.

         In its 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.

         I. Statutory & Factual Background

         A. The NFMA

         The 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)^[1]; 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.

         B. NEPA

         "NEPA 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) (citation omitted).

         C. The Payette National Forest

         The 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.

         The 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).

         Relevant 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 Plan.

         In 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).^[2] 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.

         D. The Lost-Creek Project

         In 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.

         In 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.

         In June 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 timely appealed.

         II. Standard of Review

         The 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 ...