899 F.3d 970
9th Cir.2018Background
- In 2014 the U.S. Forest Service approved the Lost Creek–Boulder Creek Landscape Restoration Project ("Lost Creek Project") proposing restoration activities (including commercial and non‑commercial logging, prescribed fire, road changes) on ~80,000 acres of the Payette National Forest.
- The Payette National Forest is governed by the 2003 Payette Forest Plan, which assigns Management Prescription Categories (MPCs) like MPC 5.1 (restoration) and MPC 5.2 (commodity production) with distinct standards, guidelines, and desired conditions.
- The Forest Service (in the Lost Creek ROD) replaced MPC 5.2 acres in Management Area 3 (MA3) with MPC 5.1, adopted a new project definition of “old forest habitat” derived from a draft Wildlife Conservation Strategy (WCS), and set a Minimum Road System (MRS) larger than recommended in the project travel analysis report.
- Plaintiffs (Alliance for the Wild Rockies, Idaho Sporting Congress, Native Ecosystems Council) sued under NFMA, NEPA, and the ESA, arguing the Project was inconsistent with the 2003 Forest Plan, improperly tiered to non‑final WCS materials, and failed to reinitiate ESA consultation for bull trout.
- The district court granted summary judgment to the Forest Service. On appeal, the Ninth Circuit affirmed as to the MRS and NEPA tiering claims, reversed as to NFMA violations (MPC change and new old‑forest definition), dismissed the ESA claim as moot, and remanded with vacatur of the Project ROD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Change of MPC 5.2 to MPC 5.1 (consistency with Forest Plan) | Replacing MPC 5.2 with MPC 5.1 for MA3 violated NFMA because it eliminated binding standards and altered desired conditions. | The switch is a permissible short‑term management tradeoff under the Plan and VEGU01; project-level flexibility allows moving conditions toward Plan goals. | Reversed: the change violated NFMA—it eliminated a binding fire standard (requires plan amendment) and did not show how long‑term desired conditions would be maintained. |
| Elimination of Plan guidelines (fire guideline) | Project deleted Fire Guideline 0313 without explaining consistency or showing the project is as effective as the guideline. | Project-level analysis and FEIS technical discussion suffice to justify decisions. | Reversed: removing the guideline without required explanation violated NFMA and was arbitrary and capricious. |
| Desired vegetative conditions (long‑term) | Switch materially departs from Appendix A desired conditions (tree size, canopy) and does not demonstrate moving all components toward desired conditions over the long term. | Desired conditions are flexible; short‑term deviations are permitted to achieve long‑term goals; technical analyses support consistency. | Reversed: Plan does not permit wholesale replacement of MPC 5.2 desired conditions without showing long‑term consistency; agency failed to articulate that. |
| New definition of "old forest habitat" (use of WCS metrics) | Project adopted WCS DEIS criteria (not in the 2003 Plan), effectively changing a Plan standard requiring maintaining ≥20% large‑tree class per PVG. | Assures on appeal the Project only added quantitative flesh to Plan definitions and did not change Plan standards. | Reversed: FEIS adopted WCS formulation and failed to justify departure from Plan standards; agency action arbitrary and capricious. |
| Minimum Road System (MRS) size | ROD adopted 401 miles MRS, exceeding 240 miles recommended in travel analysis—arbitrary and inconsistent with travel rule. | FEIS analyzed resource objectives, regulatory requirements, funding expectations, and environmental impacts and explained choice among alternatives. | Affirmed: agency considered required factors and adequately justified selecting the larger MRS. |
| NEPA tiering to WCS materials | Project improperly tiered to WCS policy/science that had not completed NEPA, circumventing public review. | FEIS incorporated WCS science but performed project‑specific analysis (direct, indirect, cumulative effects); incorporation did not omit required NEPA analysis. | Affirmed: use of WCS science did not constitute improper tiering because the FEIS analyzed the issues for the specific project. |
| ESA (bull trout) reinitiation of consultation | Forest Service should have reinitiated Section 7 consultation for bull trout. | Agency later reinitiated consultation rangewide, mooting the claim. | Dismissed as moot; district court's ESA ruling vacated. |
Key Cases Cited
- Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012) (distinguishes forest‑level plan and project‑level consistency requirements)
- Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) (project activities must comply with forest plan; NFMA consistency requirement)
- Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (all Forest Service management must comply with forest plan)
- Kern v. U.S. Bureau of Land Management, 284 F.3d 1062 (9th Cir. 2002) (improper tiering to non‑NEPA guideline prohibited)
- League of Wilderness Defs. v. U.S. Forest Serv., 549 F.3d 1211 (9th Cir. 2008) (tiering permitted only to documents subject to NEPA)
- California ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior, 767 F.3d 781 (9th Cir. 2014) (incorporation by reference is permissible when EIS contains required analysis)
- Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard for agency action)
- Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) (improper tiering can evade required cumulative impact analysis)
- Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181 (9th Cir. 2004) (vacatur of unlawful agency action is presumptive relief)