907 F.3d 1105
9th Cir.2018Background
- The Forest Service approved the Lost Creek–Boulder Creek Landscape Restoration Project (Lost Creek Project) in Sept. 2014, proposing restoration activities (including ~22,100 acres commercial logging) across ~80,000 acres of Payette National Forest.
- The Payette National Forest is governed by the 2003 Payette Forest Plan, which assigns Management Prescription Categories (MPCs); MPC 5.1 emphasizes landscape restoration, MPC 5.2 emphasizes commodity/timber production.
- The Forest Service had earlier drafted (but never adopted) Wildlife Conservation Strategy (WCS) amendments that would replace MPC 5.2 with MPC 5.1 and add a new “old forest habitat” definition; the WCS DEIS underwent public comment but the amendments were not finalized.
- The Lost Creek ROD effectively re-designated some MA3 lands from MPC 5.2 to MPC 5.1 for the project area and adopted WCS-style criteria for “old forest habitat,” and it selected a Minimum Road System (MRS) larger than recommended in the Project’s Travel Analysis Report.
- Plaintiffs (Alliance for the Wild Rockies, Idaho Sporting Congress, Native Ecosystems Council) sued under NFMA, NEPA, ESA, and APA, seeking to enjoin the Project. The district court granted summary judgment to defendants; the Ninth Circuit affirmed in part, reversed in part, vacated the ESA claim as moot, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consistency with NFMA: switching MA3 land from MPC 5.2 (commodity) to MPC 5.1 (restoration) | The switch eliminated binding Forest Plan standards (e.g., Fire Standard 0312), altered guidelines and desired vegetative conditions, and thus violated NFMA’s requirement that projects conform to the forest plan. | The Plan allows short-term flexibility; MPC 5.1 and 5.2 are substantially similar regarding fire treatment; desired-condition deviations can be justified as tradeoffs toward long-term objectives. | Reversed: the switch was inconsistent with the 2003 Plan because it removed a binding standard, deleted guidelines without explanation, and imposed new desired conditions without showing long-term compliance. |
| Definition of “old forest habitat” (use of WCS criteria) | The Project adopted WCS-derived criteria rather than the Plan’s definitions and thus deviated from Plan standards protecting large-tree/old-forest acreage. | The Project merely added quantitative detail (“fleshed out”) without changing Plan definitions; no substantive inconsistency. | Reversed: adopting the WCS definition (and failing to analyze or justify its effects against the Plan’s standard) was arbitrary and capricious and violated NFMA. |
| Minimum Road System (MRS) larger than Travel Analysis recommendation | The ROD’s 401 miles MRS exceeded the Report’s recommended ~240 miles and was therefore arbitrary and contrary to travel management rules. | The FEIS explained consideration of Plan objectives, regulatory requirements, funding expectations, environmental impacts, and why Alternative B (selected MRS) best balanced objectives. | Affirmed: the Court found the FEIS adequately considered required factors under 36 C.F.R. § 212.5 and the chosen MRS was not arbitrary or capricious. |
| NEPA tiering: reliance on WCS/WCS DEIS science and categories | The Project improperly "tiered" to WCS documents that were not themselves fully NEPA-reviewed, circumventing NEPA’s public-analysis-public-comment process. | The Project FEIS incorporated relevant science and then performed project-specific analysis (direct, indirect, cumulative effects); it did not illegally tier to unanalyzed policy documents. | Affirmed: the Project did not improperly tier in violation of NEPA because the FEIS conducted the required project-level analyses and did not rely on unanalyzed NEPA material to avoid review. |
| ESA consultation reinitiation for bull trout | Forest Service failed to reinitiate consultation under Section 7 concerning critical habitat effects. | The parties later agreed the Service reinitiated consultation range-wide, rendering the claim moot. | Dismissed as moot and vacated below-court disposition under Munsingwear. |
Key Cases Cited
- Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir. 2012) (describing forest-plan vs project-level planning and consistency requirement)
- Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) (Forest Service must comply with forest plan; deviations require explanation/amendment)
- Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) (all Forest Service management activities must comply with forest plan and Forest Act)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious standard requires reasoned explanation and consideration of relevant factors)
- Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) (disallowing tiering to documents not themselves subject to NEPA review)
- League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211 (9th Cir. 2008) (tiering permitted only to prior NEPA documents)
- Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 (9th Cir. 1999) (project EIS may not improperly avoid analyzing cumulative impacts by tiering)
- Alsea Valley All. v. Dep’t of Commerce, 358 F.3d 1181 (9th Cir. 2004) (vacatur generally accompanies remand for unlawful agency action)
- Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) (agency actions not in compliance with APA are generally invalid)
- Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520 (9th Cir. 2015) (vacatur appropriate when leaving an agency action in place risks environmental harm)