Earth Island Institute v. United States Forest Service
697 F.3d 1010
9th Cir.2012Background
- Angora Project designed to reduce fuels and restore ecosystem in the Lake Tahoe Basin Management Unit after the Angora Fire.
- Forest Plan governs project-level actions; viability requirements from the 1982 rule may or may not be incorporated at the project level.
- Plaintiffs Earth Island Institute and Center for Biological Diversity challenge NFMA and NEPA compliance.
- Forest Service prepared an environmental assessment (EA) and found no significant impact, approving surface fuel reductions on about 1,411 acres and leaving ~1,168 burned acres untreated.
- Forest Service discussion included “wildlife snag zones” and concluded the project would not change black-backed woodpecker distribution; the district court granted summary judgment for the Forest Service; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NFMA viability at the project level required? | Earth Island contends the 1982 viability rule was incorporated into the Forest Plan and therefore required project-level MIS analysis (including black-backed woodpecker). | Forest Service argues the LTBMU Plan does not expressly incorporate the 1982 rule at the project level; monitoring is planning-level, not project-level. | LTBMU Plan did not require project-level viability analysis; agency rationale upheld. |
| NEPA adequacy of the Angora EA | Earth Island argues the EA failed to ensure scientific integrity, respond to dissenting views, consider alternatives, and take a hard look. | Forest Service conducted an adequate EA, addressed data sources, considered a no-action and a preferred alternative, and took a “hard look” at impacts. | EA not arbitrary and capricious; NEPA requirements satisfied. |
| Proxy-on-proxy viability monitoring at project level | Plaintiffs say monitoring of MIS trends or habitat quality/quantity should be analyzed at project level. | +Forest Service relies on planning-level monitoring and habitat-based proxies as permitted by case law and Carlton / Lands Council II. | Agency validly used planning-level MIS monitoring and habitat proxies; no project-level MIS monitoring required. |
Key Cases Cited
- Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) (viability requirements pertain to planning level, not project level)
- Castaneda v. Castaneda Ecology Ctr., 574 F.3d 652 (9th Cir. 2009) (NEPA/viability and monitoring framework; deference to agency interpretations)
- Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) (deference to agency interpretation of forest plans; MIS monitoring at planning level)
- Native Ecosystems Council v. Tidwell, 599 F.3d 926 (9th Cir. 2010) (proxy-on-proxy approach; MIS monitoring required only when plan requires it)
- Lands Council v. McNair (Lands Council II), 537 F.3d 981 (9th Cir. 2008) (arbitrary-and-capricious review; deference to agency planning decisions; MIS monitoring context)
- Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) (explains agency may substitute habitat analysis for population monitoring under proxy-on-proxy)