Conservation Congress v. United States Forest Service
686 F. App'x 392
| 9th Cir. | 2017Background
- Conservation Congress challenged the U.S. Forest Service’s (USFS) approval of the Porcupine Vegetation and Road Management Project in Shasta‑Trinity National Forest under NFMA, NEPA, and APA.
- Project proposed vegetation treatments and limited logging intended to reduce fire risk, insect damage, and improve tree growth; treatments retain existing snags >15" unless safety or CWD needs require removal.
- USFS conducted 2011 field surveys finding at least two snags per acre >15" in each treatment unit; the Forest Plan requires an average of 1.5 snags/acre >15" and 20 ft tall in treated areas.
- USFS prepared an Environmental Analysis (EA) considering 14 alternatives (5 detailed), including an alternative excluding treatment in owl habitat (Alternative 6), which it rejected.
- Conservation Congress argued USFS violated NFMA snag standards, failed to take a NEPA "hard look," improperly scoped cumulative impacts, and should have prepared an EIS rather than issuing a FONSI.
- District court granted summary judgment for USFS; Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NFMA snag compliance | USFS failed to ensure Project meets Forest Plan snag minima | Field surveys showed ≥2 snags/acre and treatments retain snags >15" except limited safety/CWD exceptions | USFS complied with NFMA; not arbitrary |
| NEPA "hard look" on snags | USFS did not adequately analyze effects of treatments on snag levels | Baseline field data + comparison to treatment effects show retention above Plan minima | USFS took required hard look; NEPA satisfied |
| Reasonable alternatives (NEPA) | USFS should have adopted no‑treatment within owl habitat (Alternative 6) | Excluding 17% of area would defeat Project purposes and harm long‑term owl habitat goals | USFS reasonably considered alternatives and permissibly rejected Alternative 6 |
| Cumulative impacts scope | USFS used an improper scope (should use owl natal dispersal) | Agency and FWS expertise supported chosen scope; CEQ Handbook not binding regulation | Scope and cumulative analysis reasonable; agency discretion upheld |
| Need for EIS / FONSI | Uncertainty about fire effects on foraging and limited logging in critical habitat require an EIS | Uncertainty not "highly" uncertain; logging in lower‑quality habitat and no treatment in nesting/roosting; persuasive reasons support FONSI | FONSI supported; EIS not required |
Key Cases Cited
- Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir.) (NFMA interpretation re: forest management standards)
- Lands Council v. McNair, 537 F.3d 981 (9th Cir.) (snag‑retention requirements and NFMA compliance)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA requires agency to take a "hard look")
- Baltimore Gas & Electric Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) (NEPA procedural requirements and scope of review)
- Environmental Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir.) (standard for when uncertainty requires an EIS)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir.) (EIS required only where impacts may be significant)
- Andrus v. Sierra Club, 442 U.S. 347 (1979) (agency expertise and deference to administrative guidance)